Case 3:04-cv-00229-DAE-RAM Document 2 Filed 05/06/2004 Page 1 of 7

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1 AGrnengaoY~.LP.arMkcCClAinStoBnN~f116.4,2S4B2N 153553

2 U.S. E UAL EMPLO Y lVillNT

l!

OPPOR UNITY COMMISSION

3 255 East TemQle Street, 4th Floor

Los Angeles, CA 90012 4 Telephone: (213) 894-1053
FacsImile: (213) 894-1301

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5 Attom~s for Plaintiff
6 U.S. E UAL EMPLOYMENT OPPOR UNITY COMMISSION

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UNITED STATES DISTRICT COUR 2

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DISTRICT OF NEVADA

9 CV -N-04-0229-LRH-RAM

10 U.S. EQUAL EMPLOYMENT 11 OPPORtUNITY COMMISSION,

12

Plaintiff,

13

v.

COMPLAINT-CIVIL RIGHTS • SEX HARASSMENT • RETALIATION

14 SCOLARI WAREHOUSE
15 ~lE\~fr5I~lr~8~qftJ:8;B~A

16

SCOLARI'S FOOD AND DKUG; AND DOES 1-10 INCLUSIVE,

(42 U.S.C. §§ 2000e, et seq.; )
DEMAND FOR JURY TRIAL

17

Defendants.

18

19

NATURE OF THE ACTION

20

This is a sexual harassment and retaliation action brought by the United

21 States Equal Employment Opportunity Commission, ("the Commission") under

22 Title VII of the Civil Rights Act of 1964, as amended, to correct unlawful

23 employment practices on the basis of sex and to provide appropriate relief to the

24 Charging Party, Jennifer Gould (" Ms. Gould") and a class of similarly situated

25 individuals who were adversely affected by such practices. The Commission

26 alleges Ms. Gould and other similarly situated individuals were sexually harassed

27

28

-1-

Case 3:04-cv-00229-DAE-RAM Document 2 Filed 05/06/2004 Page 2 of 7

1 or subjected to sex based harassment or subjected to during their employment

2 with Defendant, Scolari Warehouse Markets, Inc., A Nevada Corporation and

3 d/b/a Scolari Food & Drug Company ("Defendant Employers"). Charging Party,

4 Ms. Gould, and other similarly situated individuals were subjected to a hostile

5 work environment perpetuated by Defendant supervisor(s).

6

The Commission also alleges Ms. Gould and other similarly situated

7 individuals who had complained of the harassment by supervisors were subjected

8 to retaliation in the form of demotion, loss of wages, further harassment, 9 discipline or discharge.

10

JURISDICTION AND VENUE

11

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. sections

12 451,1331,1337,1343 and 1345. This action is authorized and instituted

13 pursuant to section §§706(f)(l)and (3) of Title VII of the Civil Rights Act of

14 1964, as amended, 42 U.S.c. §2000e-5(f)(1) and (3) and pursuant to § 102 of the

15 Civil Rights Act of 1991,42 U.S.C. §§1981A.

16

2. The employment practices alleged herein to be unlawful were

17 committed within the jurisdiction of the United States District Court for the State

18 of Nevada.

19

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

20 attempted to eliminate the unlawful employment practices alleged below and to

21 effect voluntary compliance with Title VII through informal methods of

22 conciliation, conference and persuasion within the meaning of section

23 §§706(f)(l) and (3) of Title VII, 42 U.S. C., §§2000e-5(f)(1) and (3). All

24 conditions precedent to the institution of this lawsuit have been fulfilled.

25

PARTIES

26

4. Plaintiff Commission is an agency of the United States of America

27

28

-2-

Case 3:04-cv-00229-DAE-RAM Document 2 Filed 05/06/2004 Page 3 of 7

1 charged with the administration, interpretation and enforcement of Title VII, and

2 is expressly authorized to bring this action under §§706(f)(1) and (3) of Title VII,

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

4

5. At all relevant times, "Defendant Employers," have continuously been

5 and are now doing business in the State of Nevada, County of Washoe, and City

6 of Reno, Nevada.

7

6. Plaintiff is ignorant of the true names and capacities of "Defendant

8 Employers," sued as DOES 1 through 10, inclusively, and therefore Plaintiff sue

9 said "Defendant Employers" by such fictitious names. Plaintiff reserves the right

10 to amend the complaint to name the DOE "Defendant Employers" individually or

11 corporately as they become known. Plaintiff alleges that each of the "Defendant

12 Employers" named as DOES was in some manner responsible for the acts and

13 omissions alleged herein and Plaintiff will amend the complaint to allege such

14 responsibility when same shall have been ascertained by Plaintiff.

15

7. It is further alleged on information and belief that the named and

16 unnamed defendants in the complaint are mere alter egos of the "Defendant

17 Employer". The remaining defendants are properly named in the complaint.

18

8. All ofthe acts and failures to act alleged herein were duly performed by

19 and attributable to "Defendant Employer", each acting as a successor, agent,

20 employee or under the direction and control of the others, except as specifically

21 alleged otherwise. Said acts and failures to act were within the scope of such

22 agency and/or employment, and each "Defendant Employer" participated in,

23 approved and/or ratified the unlawful acts and omissions by other "Defendant

24 Employer" complained of herein. Whenever and wherever reference to any act in

25 this Complaint to any act by a defendant employer or "Defendant Employer",

26 such allegations and reference shall also be deemed to mean the acts and failures

27

28

~_

Case 3:04-cv-00229-DAE-RAM Document 2 Filed 05/06/2004 Page 4 of 7

1 to act of each "Defendant Employers" acting individually, jointly and/or

2 severally.

3

9. At all relevant times, "Defendant Employers" has continuously been

4 an employer engaged in an industry affecting commerce within the meaning of §§

5 701 (b), (g) and (h) of Title VII, 42 U.S.C., §§ 2000e-l(b), (g) and (h) and §§

6 11 (b), (g), and (h).

7

STATEMENT OF CLAIMS

8

10. Since on or about October 2002, "Defendant Employers" has

9 engaged in unlawful employment practices at its facility in Reno, Nevada in

10 violation of §§706(t)(1) and (3) of Title VII, 42 U.S. C., §§2000e-5(t)(1) and (3).

11 The unlawful sexual harassment and sex based harassment in the form of verbal

12 harassment directed at Ms. Gould and other similarly situated individual women

13 impacted the terms and conditions of their employment and created a hostile

14 working environment at "Defendant Employers." These practices also included

15 the retaliation against and termination of Ms. Gould and other similarly situated

16 individuals for having complained about the work environment.

17

11. The impact of the aforementioned conduct deprived Ms. Gould and

18 other similarly situated individuals of equal employment opportunities and to

19 otherwise adversely impacted their employment status because of their sex and

20 also in retaliation for opposing discriminatory practices or engaging in a protected

21 activity that resulted in adverse employment action.

22

12. The unlawful employment practices complained of above were and

23 are willful within the meaning of §§706(t)(1) and (3) of Title VII, 42 U.S. C.,

24 §§2000e-5(t)(1) and (3).

25

13. The unlawful employment practices complained of above were

26 intentional and caused Ms. Gould and other similarly situated individuals to

27

28

-4-

Case 3:04-cv-00229-DAE-RAM Document 2 Filed 05/06/2004 Page 5 of 7

1 suffer emotional distress.

2

14. "Defendant Employers" has acted with malice or reckless indifference

3 to the federally protected rights of Ms. Gould and other similarly situated

4 individuals by subjecting them to harassment consisting of sexually charged

5 conduct, derogatory statements, obscene and vulgar language. Women were

6 openly asked by supervisor(s) to "show [them] their tits," and to "suck some

7 cock" as well as subjected to other derogatory and obscene statements. When

8 Charging party complained to "Defendant Employer" about the harassment she

9 and other similar situated individuals were being subjected to, she was

10 terminated. The Charging party and other similarly situated individuals were also

11 subject to retaliation for opposing discrimination or engaging in a protected

12 activity resulting in an adverse employment action that harmed them.

13

PRAYER FOR RELIEF

14

Wherefore, the Commission respectfully requests that this Court:

15

A. Grant a permanent injunction enjoining "Defendant Employer," its

16 officers, successors, assigns and all persons in active concert or participation with

17 them, from engaging in any employment practices that discriminate on the basis

18 of sex or from engaging in unlawful retaliation;

19

B. Grant a permanent injunction enjoining "Defendant Employer," their

20 officers, successors, assigns and all persons in active concert or participation with

21 them, from engaging in any employment practice which discriminates on the

22 basis of sex;

23

C. Order "Defendant Employer" to institute and carry out policies,

24 practices and programs which provide equal employment opportunities for

25 females which eradicate the effects of their past and present unlawful

26 employment practices;

27

28

-5-

Case 3:04-cv-00229-DAE-RAM Document 2 Filed 05/06/2004 Page 6 of 7

1

D. Grant a judgment requiring "Defendant Employer" to pay Ms. Gould

2 and other similarly situated individuals appropriate back pay, front pay,

3 compensatory damages and benefits in an amount to be determined at trial

4 including prejudgment interest;

5

E. Order "Defendant Employer" to make Ms. Gould and other similarly

6 situated individuals whole by providing affirmative relief necessary to eradicate

7 the effects of its unlawful practices including, but not limited to, payment of

8 compensatory damages to Ms. Gould and other similarly situated individuals

9 andlor rightful place employment;

10

F. Order "Defendant Employer" to pay Ms. Gould and other similarly

11 situated individuals punitive damages in an amount to be determined at trial;

12

G. Award the Commission its costs in this action; and

13

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

14 the public interest.

15 III

16 III

17 III

18 III

19 III

20 III

21 III

22 III

23 III

24 III

25 III

26 III

27

28

-6-

Case 3:04-cv-00229-DAE-RAM Document 2 Filed 05/06/2004 Page 7 of 7

1

JURY DEMAND

2

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

3 Complaint.

4

Respectfully Submitted By:

5 U.S. EQUAL EMPLOYMENT OPPORtUNITY COMMISSION
6 1801 "L" Street N.W. Washington, D.C. 20507
7

8 Eric S. Dreiband General Counsel
9 James Lee Deputy General Counsel
10 Gwenaolyn Reams Associate General Counsel
1 1

12 May 5, 2004

13

14

U.S. EQUAL EMPLOYMENT

OPPORtUNITY COMMlSSION

15

255 East Temgle Street, 4 Floor

Los An~eles, California 90012

16

(213)89""4-1053

17

18

19

20

21

22

23

24

25

26

27

28

-7-

 
 \

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 1 of 8

FfLFD

1 Anna Y. Park CA SBN 164242 Gregory L. MCClinton, CA SBN 153553
2 Samantha E. Blake,- CA SBN 169133 U.S. EQUAL EMPLOYMENT
3 OPPOR'TUNITY COMMISSION 255 East TemQ1e Street, 4th Floor
4 Los Angeles CA 90012 Telephone: (213) 894-1053
5 FaCSImile: (213) 894-1301

04JUL-1 M11!:53

6 Attorne~ for Plaintiff U.S. E UAL EMPLOYMENT
7 OPPOR UNITY COMMISSION

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

11

u.s. EQUAL EMPLOYMENT
OPPORIUNITY COMMISSION,

CASE NO.: CV-N-04-0229-LRH-RAM

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0

12

Plaintiff,

13

v.

14

15

SCOLARI WAREHOUSE MARKETS INCORPORATED A

16

NEVADA CORPORATION1-.DIBIA SCOLARI'S FOOD AND DKUG·

FIRST AMENDED COMPLAINT CIVIL RIGHTS
• SEX HARASSMENT • RETALIATION
(42 U.S.C. §§ 2000e, et seq.; )

17 AND DOES 1-10 INCLUSIVE, ,

DEMAND FOR JURY TRIAL

18

Defendants.

19

20

NATURE OF THE ACTION

21

This is a sexual harassment and retaliation action brought by the United

22 States Equal Employment Opportunity Commission, ("the Commission") under

23 Title VII of the Civil Rights Act of 1964, as amended, to correct unlawful

24 employment pattern and practices on the basis of sex and to provide appropriate

25 relief to the Charging Party, Jennifer Gould (" Ms. Gould") and a class of

26 similarly situated individuals who were adversely affected by such pattern and

27

28

-1-

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 2 of 8

1 practices. The Commission alleges Ms. Gould and other similarly situated

2 individuals were sexually harassed or subjected to sex based harassment or

3 unlawful pattern and practices during their employment with Defendant, Scolari

4 Warehouse Markets, Inc., A Nevada Corporation and d/b/a Scolari Food & Drug

5 Company ("Defendant Employers"). Charging Party, Ms. Gould, and other

6 similarly situated individuals were subjected to a hostile work environment

7 perpetuated by Defendant supervisor(s).

8

The Commission also alleges Ms. Gould and other similarly situated

9 individuals who had complained of the harassment by supervisors were subjected

10 to retaliation in the form of demotion, loss of wages, further harassment,

11 discipline or discharge.

12

JURISDICTION AND VENUE

13

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. sections

14 451,1331,1337,1343 and 1345. This action is authorized and instituted

15 pursuant to section §§706(t)(1)and (3); and §§707 of Title VII of the Civil Rights

16 Act of 1964, as amended, 42 U.S.c. §2000e-5(t)(1) and (3) and pursuant to § 102

17 of the Civil Rights Act of 1991,42 U.S.C. §§1981A.

18

2. The employment practices alleged herein to be unlawful were

19 committed within the jurisdiction of the United States District Court for the State

20 of Nevada.

21

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

22 attempted to eliminate the unlawful employment pattern and practices alleged

23 below and to effect voluntary compliance with Title VII through informal

24 methods of conciliation, conference and persuasion within the meaning of section

25 §§706(t)(1) and (3) of Title VII, 42 U.S. C., §§2000e-5(t)(1) and (3). All

26 conditions precedent to the institution of this lawsuit have been fulfilled.

27

28

-2-

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 3 of 8

1

PARTIES

2

4. Plaintiff Commission is an agency of the United States of America

3 charged with the administration, interpretation and enforcement of Title VII, and

4 is expressly authorized to bring this action under §§706(f)(1) and (3) of Title VII,

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

6

5. At all relevant times, "Defendant Employers," have continuously been

7 and are now doing business in the State of Nevada, County of Washoe, and City

8 of Reno, Nevada.

9

6. Plaintiff is ignorant of the true names and capacities of "Defendant

10 Employers," sued as DOES 1 through 10, inclusively, and therefore Plaintiff sue

11 said "Defendant Employers" by such fictitious names. Plaintiff reserves the right

12 to amend the complaint to name the DOE "Defendant Employers" individually or

13 corporately as they become known. Plaintiff alleges that each of the "Defendant

14 Employers" named as DOES was in some manner responsible for the acts and

15 omissions alleged herein and Plaintiff will amend the complaint to allege such

16 responsibility when same shall have been ascertained by Plaintiff.

17

7. It is further alleged on information and belief that the named and

18 unnamed defendants in the complaint are mere alter egos of the "Defendant

19 Employer". The remaining defendants are properly named in the complaint.

20

8. All of the acts and failures to act alleged herein were duly performed by

21 and attributable to "Defendant Employer", each acting as a successor, agent,

22 employee or under the direction and control of the others, except as specifically

23 alleged otherwise. Said acts and failures to act were within the scope of such

24 agency and/or employment, and each "Defendant Employer" participated in,

25 approved and/or ratified the unlawful acts and omissions by other "Defendant

26 Employer" complained of herein. Whenever and wherever reference to any act in

27

28

-3-

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 4 of 8

1 this Complaint to any act by a defendant employer or "Defendant Employer",

2 such allegations and reference shall also be deemed to mean the acts and failures

3 to act of each "Defendant Employers" acting individually, jointly and/or

4 severally.

5

9. At all relevant times, "Defendant Employers" has continuously been

6 an employer engaged in an industry affecting commerce within the meaning of §§

7 701 (b), (g) and (h) of Title VII, 42 U.S.C., §§ 2000e-1(b), (g) and (h) and §§

8 l1(b), (g), and (h).

9

STATEMENT OF CLAIMS

10

10. Since on or about October 2002, "Defendant Employers" has

11 engaged in a pattern and practice of unlawful employment practices at its facility

12 in Reno, Nevada in violation of §§706(f)(1) and (3) and §§707 of Title VII, 42

13 U.S. C., §§2000e-5(f)(1) and (3). The "Defendant Employers" caused verbal

14 harassment to be directed at Ms. Gould and other similarly situated individual

15 women that impacted the tenns and conditions of their employment and created a

16 hostile working environment at "Defendant Employers." These practices also

17 included the retaliation against and tennination of Ms. Gould and other similarly

18 situated individuals for having complained about the work environment. Once

19 "Defendant Employers" became aware of the unlawful sexual harassment and sex

20 based harassment it failed to take prompt remedial action intended to eliminate

21 the harassment, a violation of §§706 and §§707 of Title VII, 42 U.S.C. §2000e-

22 2e-5(f)(1) and (3).

23

11. The impact of the aforementioned conduct deprived Ms. Gould and

24 other similarly situated individuals of equal employment opportunities and to

25 otherwise adversely impacted their employment status because of their sex and

26 also in retaliation for opposing discriminatory practices or engaging in a protected

27

28

-4-

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 5 of 8

1 activity that resulted in adverse employment action.

2

12. The unlawful employment practices complained of above were and

3 are willful within the meaning of §§706(t)(1) and (3) and §§707 of Title VII, 42

4 U.S. C., §§2000e-5(t)(1) and (3).

5

13. The unlawful employment pattern and practices complained of above

6 were intentional and caused Ms. Gould and other similarly situated individuals to

7 suffer emotional distress.

8

14. "Defendant Employers" has acted with malice or reckless indifference

9 to the federally protected rights of Ms. Gould and other similarly situated

10 individuals by subjecting them to harassment consisting of sexually charged

11 conduct, derogatory statements, obscene and vulgar language. Women were

12 openly asked by supervisor(s) to "show [them] their tits," and to "suck some

13 cock" as well as SUbjected to other derogatory and obscene statements. When

14 Charging party complained to "Defendant Employer" about the harassment she

15 and other similar situated individuals were being subjected to, she was

16 terminated. The Charging party and other similarly situated individuals were also

17 subject to retaliation for opposing discrimination or engaging in a protected

18 activity resulting in an adverse employment action that harmed them.

19

PRAYER FOR RELIEF

20

Wherefore, the Commission respectfully requests that this Court:

21

A. Grant a permanent injunction enjoining "Defendant Employer," its

22 officers, successors, assigns and all persons in active concert or participation with

23 them, from engaging in any employment practices that discriminate on the basis

24 of sex or from engaging in unlawful retaliation;

25

B. Grant a permanent injunction enjoining "Defendant Employer," their

26 officers, successors, assigns and all persons in active concert or participation with

27

28

-5-

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 6 of 8

1 them, from engaging in any employment practice which discriminates on the

2 basis of sex;

3

C. Order "Defendant Employer" to institute and carry out policies,

4 practices and programs which provide equal employment opportunities for

5 females which eradicate the effects of their past and present unlawful

6 employment practices;

7

D. Grant a judgment requiring "Defendant Employer" to pay Ms. Gould

8 and other similarly situated individuals appropriate back pay, front pay, 9 compensatory damages and benefits in an amount to be determined at trial

10 including prejudgment interest;

11

E. Order "Defendant Employer" to make Ms. Gould and other similarly

12 situated individuals whole by providing affirmative relief necessary to eradicate

13 the effects of its unlawful practices including, but not limited to, payment of

14 compensatory damages to Ms. Gould and other similarly situated individuals

15 and/or rightful place employment;

16

F. Order "Defendant Employer" to pay Ms. Gould and other similarly

17 situated individuals punitive damages in an amount to be determined at trial;

18

G. Award the Commission its costs in this action; and

19

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

20 the public interest.

21 III

22 III

23 III

24 III

25 III

26 III

27

28

-6-

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 7 of 8

1

JURY DEMAND

2

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

3 Complaint.

4

Respectfully Submitted By:

5

6 U.S. EQUAL EMPLOYMENT OPPORtUNITY COMMISSION
7 1801 "L" Street N.W. Washington, D.C. 20507
8

9 Eric S. Dreiband, General Counsel

C) James Lee, Deputy General Counsel
: ~ Gwendolyn Reams, Associate General co~_-=<~

June 30, 2004
12

B~-=--"",,,,,,,,,,,-;::_;;;::;;;52==-::r-...-n:-:===--
Aiuia Y. Park RegIOnal Attorney

13

SGarmegaonrtyhaL.EM. BclCakhen,toTnn1aTl rAiatltoArntteoyrney

14

U.S. EQUAL EMPLOYMENT

OPPORtUNITY CO~SSION

15

255 East TemQ.le Street, 4 Floor

Los An~eles, California 90012

16

(213)8g-4-1053

17

18

19

20

21

22

23

24

25

26

27

28

-7-

Case 3:04-cv-00229-DAE-RAM Document 5 Filed 07/01/2004 Page 8 of 8 •

1

DECLARATION OF MAILING

2

3

I am, and was at the time the herein mentioned mailing and facsimile transmission took place,

4 a citizen ofthe United States, over the age ofeighteen (18) years and not a party to the above-entitled

5 cause.

6

I am employed in the Legal Unit of the Los Angeles District Office of the United States

7 Equal Employment Opportunity Commission.

8

My business address is Equal Employment Opportunity Commission, Los Angeles District

9 Office, 255 E. Temple Street, Fourth Floor, Los Angeles, CA 90012. l O O n the date that this declaration was executed, as shown below, I served the foregoing

11 FIRST AMENDED COMPLAINT - CIVIL RIGHTS - SEX HARASSMENT and

12 RETALIATION by facsimile and by regular mail at Los Angeles, County of Los Angeles, State

13 of California to:

14

Ray Artiano

STUTZ, ARTIANO, SHINOFF & HOLTZ

15

401 West "A" Street, 15th Floor

San Diego, CA 92101-7906

16

Telephone: (619) 232-3122

17

Facsimile: (619) 232-3264

18

I declare under penalty of perjury that the foregoing is true and correct.

19

Executed on June 30, 2004 at Los Angeles, California.

20

21
Brian A. wOOdard
22

23

24

25

26

27

28

S:\Legal Unit\Scolari Food Warehouse\Pleadings\Declaration of Facsimile and Mailing 06302004 BAW.wpd

 
 Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 1 of 8

1 Anna Y. Park CA SBN 164242 Gregory_L. McClinton, CA SBN 153553
2 Victor Viramontes, CA SBN 1214158 U.S. EOUAL EMPLOYMENT
3 OPPORIUNlTY COMNIISSION 255 East TemQle Street, 4th Floor
4 Los Angeles CA 90012 Telephone: (213) 894-1053
5 FacsImile: (213) 894-1301

6 Attorne~ for Plaintiff U.S. E UAL EMPLOYMENT
7 OPPOR UNlTY COMMISSION

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

11

U.S. EOUAL EMPLOYMENT OPPORIUNlTY COMMISSION,

12

Plaintiff,

13

v.

14

15

SCOLARI WAREHOUSE MARKETS INCORPORATED A

16

NEVADA CORPORATION D/B/A SCOLARI'S FOOD AND DRUG;

17 AND DOES 1-10 INCLUSIVE,

18

Defendants.

CASE NO.: CV-N-04-0229-DAERAM
SECOND AMENDED COMPLAINT CIVIL RIGHTS
• SEX HARASSMENT • RET ALIATION
(42 U.S.C. §§ 2000e, et seq.; ) DEMAND FOR JURY TRIAL

19

20

21

NATURE OF THE ACTION

22

This is a sexual harassment and retaliation action brought by the United

23 States Equal Employment Opportunity Commission, ("the Commission") under

24 Title VII of the Civil Rights Act of 1964, as amended, to correct unlawful

25 employment pattern and practices on the basis of sex and to provide appropriate

26 relief to the Charging Party, Jennifer Gould (" Ms. Gould") and a class of

27 similarly situated individuals who were adversely affected by such pattern and

28

-1-

Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 2 of 8

practices. The Commission alleges Ms. Gould and other similarly situated

2 individuals were sexually harassed or subjected to sex based harassment or

3 unlawful pattern and practices during their employment with Defendant, Scolari

4 Warehouse Markets, Inc., A Nevada Corporation and d/b/a Scolari Food & Drug

5 Company ("Defendant Employers"). Charging Party, Ms. Gould, and other

6 similarly situated individuals were subjected to a hostile work environment

7 perpetuated by Defendant supervisor(s).

8

The Commission also alleges Ms. Gould and other similarly situated

9 individuals who had complained of the harassment by supervisors were subjected

10 to retaliation in the form of demotion, loss of wages, further harassment,

11 discipline or discharge.

12

JURISDICTION AND VENUE

13

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. sections

14 451,1331,1337,1343 and 1345. This action is authorized and instituted

15 pursuant to section §§706(f)(1)and (3); and §§707 of Title VII of the Civil Rights

16 Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(1) and (3); 42 U.S.C. §2000e-

17 6(f) 1 and (3) and and pursuant to § 102 of the Civil Rights Act of 1991, 42

18 U.S.C. §§1981A.

19

2. The employment practices alleged herein to be unlawful were

20 committed within the jurisdiction of the United States District Court for the State

21 of Nevada.

22

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

23 attempted to eliminate the unlawful employment pattern and practices alleged

24 below and to effect voluntary compliance with Title VII through informal

25 methods of conciliation, conference and persuasion within the meaning of section

26 §§706(f)(1) and (3) of Title VII, 42 U.S. C., §§2000e-5(f)(1) and (3). All

27

28

-2-

Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 3 of 8

conditions precedent to the institution of this lawsuit have been fulfilled.

2

PARTIES

3

4. Plaintiff Commission is an agency of the United States of America

4 charged with the administration, interpretation and enforcement of Title VII, and

5 is expressly authorized to bring this action under §§706(f)(1) and (3) of Title VII,

6 42 U.S.C., §§ 2000e-5(f)(1) and (3) and §§707 (f)(1), 42 U.S.C. §2000e-6(f)1 and

7 (3)

8

5. At all relevant times, "Defendant Employers," have continuously been

9 and are now doing business in the State of Nevada, County of Washoe, and City

10 of Reno, Nevada.

11

6. Plaintiff is ignorant of the true names and capacities of "Defendant

12 Employers," sued as DOES 1 through 10, inclusively, and therefore Plaintiff sue

13 said "Defendant Employers" by such fictitious names. Plaintiff reserves the right

14 to amend the complaint to name the DOE "Defendant Employers" individually or

15 corporately as they become known. Plaintiff alleges that each of the "Defendant

16 Employers" named as DOES was in some manner responsible for the acts and

17 omissions alleged herein and Plaintiff will amend the complaint to allege such

18 responsibility when same shall have been ascertained by Plaintiff.

19

7. It is further alleged on information and belief that the named and

20 unnamed defendants in the complaint are mere alter egos of the "Defendant

21 Employer". The remaining defendants are properly named in the complaint.

22

8. All of the acts and failures to act alleged herein were duly performed by

23 and attributable to "Defendant Employer", each acting as a successor, agent,

24 employee or under the direction and control of the others, except as specifically

25 alleged otherwise. Said acts and failures to act were within the scope of such

26 agency and/or employment, and each "Defendant Employer" participated in,

27

28

-3-

Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 4 of 8

approved and/or ratified the unlawful acts and omissions by other "Defendant

2 Employer" complained of herein. Whenever and wherever reference to any act in

3 this Complaint to any act by a defendant employer or "Defendant Employer",

4 such allegations and reference shall also be deemed to mean the acts and failures

5 to act of each "Defendant Employers" acting individually, jointly and/or

6 severally.

7

9. At all relevant times, "Defendant Employers" has continuously been

8 an employer engaged in an industry affecting commerce within the meaning of §§

9 701 (b), (g) and (h) of Title VII, 42 U.S.C., §§ 2000e-l(b), (g) and (h) and §§

10 11 (b), (g), and (h).

11

STATEMENT OF CLAIMS

12

10. Since on or about January 1, 1999, "Defendant Employers" has

13 engaged in a pattern and practice of unlawful employment practices at its facility

14 in Reno, Nevada in violation of §§706(f)(1) and (3) and §§707 of Title VII, 42

15 U.S. C., §§2000e-5(f)(1) and (3) and 42 U.S.C. §2000e-6(f)1 and (3). The

16 "Defendant Employers" caused verbal harassment to be directed at Ms. Gould

17 and other similarly situated individual women that impacted the terms and

18 conditions of their employment and created a hostile working environment at

19 "Defendant Employers." These practices also included the retaliation against and

20 termination of Ms. Gould and other similarly situated individuals for having

21 complained about the work environment. Once "Defendant Employers" became

22 aware of the unlawful sexual harassment and sex based harassment it failed to

23 take prompt remedial action intended to eliminate the harassment, a violation of

24 §§706 and §§707 of Title VII, 42 U.S.C. §2000e-2e-5(f)(1) and (3) and 42 U.S.C.

25 §2000e-6(f) 1 and (3).

26

11. The impact of the aforementioned conduct deprived Ms. Gould and

27

28

-4-

Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 5 of 8

1 other similarly situated individuals of equal employment opportunities and to

2 otherwise adversely impacted their employment status because of their sex and

3 also in retaliation for opposing discriminatory practices or engaging in a protected

4 activity that resulted in adverse employment action.

5

12. The unlawful employment practices complained of above were and

6 are willful within the meaning of §§706(t)(1) and (3) and §§707 of Title VII, 42

7 U.S. C., §§2000e-5(t)(1) and (3) and 42 U.S.C. §2000e-6(t)1 and (3).

8

13. The unlawful employment pattern and practices complained of above

9 were intentional and caused Ms. Gould and other similarly situated individuals to

10 suffer emotional distress.

11

14. "Defendant Employers" has acted with malice or reckless indifference

12 to the federally protected rights of Ms. Gould and other similarly situated

13 individuals by subjecting them to harassment consisting of sexually charged

14 conduct, derogatory statements, obscene and vulgar language. Women were

15 openly asked by supervisor(s) to "show [them] their tits," and to "suck some

16 cock" as well as subjected to other derogatory and obscene statements. When

17 Charging party complained to "Defendant Employer" about the harassment she

18 and other similar situated individuals were being subjected to, she was

19 terminated. The Charging party and other similarly situated individuals were also

20 subject to retaliation for opposing discrimination or engaging in a protected

21 activity resulting in an adverse employment action that harmed them.

22

PRAYER FOR RELIEF

23

Wherefore, the Commission respectfully requests that this Court:

24

A. Grant a permanent injunction enjoining "Defendant Employer," its

25 officers, successors, assigns and all persons in active concert or participation with

26 them, from engaging in any employment practices that discriminate on the basis

27

28

-5-

Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 6 of 8

of sex or from engaging in unlawful retaliation;

2

B. Grant a permanent injunction enjoining "Defendant Employer," their

3 officers, successors, assigns and all persons in active concert or participation with

4 them, from engaging in any employment practice which discriminates on the

5 basis of sex;

6

C. Order "Defendant Employer" to institute and carry out policies,

7 practices and programs which provide equal employment opportunities for

8 females which eradicate the effects of their past and present unlawful

9 employment practices;

10

D. Grant a judgment requiring "Defendant Employer" to pay Ms. Gould

11 and other similarly situated individuals appropriate back pay, front pay,

12 compensatory damages and benefits in an amount to be determined at trial

13 including prejudgment interest;

14

E. Order "Defendant Employer" to make Ms. Gould and other similarly

15 situated individuals whole by providing affirmative relief necessary to eradicate

16 the effects of its unlawful practices including, but not limited to, payment of

17 compensatory damages to Ms. Gould and other similarly situated individuals

18 andlor rightful place employment;

19

F. Order "Defendant Employer" to pay Ms. Gould and other similarly

20 situated individuals punitive damages in an amount to be determined at trial;

21

G. Award the Commission its costs in this action; and

22

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

23 the public interest.

24 III

25 III

26 III

27

28

-6-

Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 7 of 8

1

JURY DEMAND

2

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

3 Complaint.

4

Respectfully Submitted By:

5

6 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
7 1801 "L" Street, N.W. Washington, D.C. 20507
8

9 Ronald Cooper, General Counsel James Lee, Deputy General Counsel
10 Gwendolyn Reams, Associate General Counse

u.S. EQUAL EMPLOYMENT OPPORTUNITY COMMlSSION 255 East TemQle Street, 4t Floor Los Angeles, California 90012 (213)894-1053

-7-

Case 3:04-cv-00229-DAE-RAM Document 135 Filed 03/29/2007 Page 8 of 8

1

PROOF OF SERVICE VIA ELECTRONIC FILING SYSTEM

2

I am, and was at the time the herein mentioned mailing took place, a citizen

3 of the United States, over the age of eighteen (18) years and not a party to the

4 above-entitled cause.

5

I am employed in the Legal Unit of the Los Angeles District Office of the

6 United States Equal Employment Opportunity Commission.

7

My business address is Equal Employment Opportunity Commission, Los

8 Angeles District Office, 255 East Temple Street, Fourth Floor, Los Angeles, CA

9 90012.

10

On the date that this declaration was executed, as shown below, I served

11 the foregoing SECOND AMENDED COMPLAINT - CIVIL RIGHTS - SEX

12 HARASSMENT - RETALIATION via the Case Management/Electronic Case Filing

13 (CM/ECF) system at Los Angeles, County of Los Angeles, California to:

14

Ray: Artiano

15

STUTZ ARTIAND, SHINOFF & HOLTZ

2488 Historic Decatur Road, Suite 200

16

San Diego, CA 92101-7906

17 Miranda Du Esq.

18

MCDONALD CARANb WIL§ON, LLP 100 West Liberty Stree~ lOt Floor

19

Reno, NY 895ul

20

I declare under penalty of perjury that the foregoing is true and correct.

21

Executed on March 29, 2007, at Los Angeles, California.

22

23

24

BRl~A. WOODARD

25

26

27

28

 
 Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 1 of 18

1 AnnaV Park,CA SBN 164242 D erek Li.CA SBN 150122
2 GregorvL.M cclintom CA 153553 V ictorViram ontes.CA SBN 214158
3 EQUAL EM PLOYM ENT
O P2 ORTUN ITY COM M ISSION 4 255 EastTenm lcStreet.4th Floor
LosAngeles UA 90012
5 Tclcphone:(b13)894-1083
Facselm ile:Q 13)894-130l
6 lado-lezalrzleeoc.aov
7 AEjytoUmVe sEfMorPPLlOaiYntMiffENT
s o eor tw lw co M v lssloN
9 R>y J.Axiaqo,Pro HacVice CA SB N 88916
LlpbisaKostlc NV sBN 77y% lo skUTZARTIXNO SHINOI'F& HOLTZ
A ProfessionalCorx ration 11 2488H 'TstoricD eca-turRoad,Suite200
San Diego.CA 92106
12 Telephoneî.(619)232-3l22
Facslmile:$ 19)232-3264
l3 A ttorneysforD efbndant
14 SCOLARI'S W AREH OU SE M ARK ETS,etal.

15
U NITED STA TES D ISTRICT C O URT
16
D ISTR IC T O F N EVADA
17
i: EovuoAR1-wEtMwPlTLyOVcMoMENxTusslox, RCAAMSENO.cV-04-0229-DAE.

19

Plaintiftl

b

CONSEG

Ecuu ;(JA E;R

20

v.

21 scol-N uTs'sEwhicAolkrEtll-aloolul.As'cf'ED A

22 NEVADA CORPORATION D/B/A

scol-M l'sFooo Axo okutk

23

Ilefendant.

24

'

-

TheHgnop bleDavid A .Enza
U.S.DlstnctCourtJudge

25

26

27

28

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 2 of 18

1

1.

2

IN TR O D UCT-IO N

3

PlaintiffU,S.EqualEmploym entOpportunityCommission tthcGEEOC''or

4 çrommission'')andDefrndantScolari'sW arehouseM arkets,Inc,d/b/aScolari's

5 FoodandDrtzg(hereinafterçr cfendant'')herebystipulateandagreetoentryof

6 thisConsentD ecrcctoresolve theCom m ission'sSecond A m ended Com plaint,

7 tlled underTitleV IIoftheCivilRightsActofl964,asam endcda 42(I.S.C.j 2000e:.1seq.(Lt-ritleV1l''),allegingthatChargingPartyJermiferGould,

9 (hcreinafterç'ChargingParty''landothersimilarlysituatedindividualswere

1() subjectedtounlawfulemploymentpracticese11thebasisorsex,tkmale,in

11 violationofSection706(f)(1)and3andSection707(9(1)ofTitlcVII. The

l2 D cfendantdeniestheallegationscontabned inPlaintim sSecond A m ended

l3 Com plaintandm aintainsthatno harassm enttook placeatD etkndant'splaceof

l4 business. Thisagrcem entisacom prom iscofadisputedclaim and paym entsm ade

15 hereunderarenotto beconstrued asan adm ission ofliabilityon thepartofthe

D efcndmlt.
16
II.

17

PU RPO SES Ae SCO PE O F TH E CO N SE N

T DECREE

18

ThepartiestothisConsentDecrec(;;.Decree,.)arethcEEOC andDefendant.

19
ThescopeofthisD ecreccovefsD efendant,sfacilitiescollectively referred toand

2û d oing businessasScolari'sFood andD rug,located in theStateofNevada. This
2l D
ecreeshallbebinding onand enfbrccable againstD etkndantanditsofficers ,
22 directors,agents,succcssorsand assigns.

23
B . Thepartieshaveentered into thisD ecreeforthetbllowingpurposes!

24
1. Toprovideappropriatemonetaryandinjunctiverelief;
25
2. R.oensurethatDefendantïsem ploym entpracticescom ply with

26
lx'ederallaw ;

27

3. To ensureawork environm entfreefrom hostility tm d

28

z

CONSENTDECREE;ORDER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 3 of 18

l retaliation;

2

4 .

To ensuretraining forD efendant'sm anagersand cm ployees

:5 w ith respecttotheirobligationsunderTitleVll;and

4

5 .

'l-oprovidean appropriateand eftkctivem echanism for

5 handling discrim inationcom plaintsintheworkplace,

6

1H .

7

R ELEASE O F CLAIM S

8

A .

ThisDecree fully andcolnpletely resolvesallissues,claim sand

9 allegationsby theEEO C againstD efendantthatareraised in thcEEOC'SSecond

10 A m endedComplaintfqled inthisaction in theUnited StatesDistrictCoum D istrict

l 1

of N

evada ,

captioned U

.S.EqualEm

ploylnentO

pportunity

Com

m

ission

v.

12

scolari's W

arehouse M

arkets ,

Inc.,etal.:CaseN

o.CV

-04-0229-D

AE-RAM

.

13

B Nothing inthisD ecreeshallbeconstrued to precludeany party from

14 bringing suitto enforcethisD ecreein theeventthatany party heretofailsto

15

Perform

theprom isesand representationscontainedherein .

16

c N othjng in thisD ecree shallbeconstrued to lim itorrcduce

11 Defelldant'sobligation tocom ply fully with TîtleV Ilorany othertbderal

13 l nentstatute

em p oyi

.

19

D ThisD ocreein no way atrectstheElï(7c 'srightto bring,process,

20 jnvcstigateorlitigateotherohargesthatm aybe in existenceorm ay laterarise

21 againstD cfendantin accordanccw ith standard EEO C procedures.

22

Iv

.

23

JU RISDICTIO N

24

A. n c couxhasiurisdicsionoverthepartiesandthesubjectmatterof

25 thislaw suit.'rhescoc asscl'tsthatitsclaim s.ifproven,would authorize the

26 Coun to granttheequitablerelietvsetforth in thisDecree. Thetel'm sand

27 provisionsofthisDecrrearefair,rcasonableandjust.ThisDecreeconformswith

28

3

CONSENTDECREE;ORDER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 4 of 18

l theFederalRulesofCivilProcedureand TitleVlIand isnotin derogationofthe

2 rightsorprivilegesofanypcrson.

3

B .

TheCourtshallretainjurisdictionofthisactionduringthedumtionof

4 theDecreeforthepurposesofentering allorderszjudgmentsanddecreesthatmay

5 benecessary to im plem cntthereliefprovidedherein .

6

v

.

7

EFFECTIVE D ATE AN D D UR ATIO N OF D ECR EE

8

A .

n eprovisionsand agreem entscontained herein areeffcctive

9 immediatelyupontbedatewhichthisDecreeiscnteredbytbeCourtC%he

1t1 EffectivcDate'').

i 1

B ,

Exccptasotherwiseprovidcdherein,thisDecrec shallrem ain in

12 effectforthree(3)yearsahertheEffectiveDate.

13

vl

14

M O DIFICA TIO N A Nl)SEV EM BILI'I'Y

15

A .

ThisD ecreeconstitutesthecom pleteunderstanding ofthepartieswith

16

respcct to

the m

atters contained

herein .

No waiver,m odification oram endm entof

17 anyprovisionofthisDecreewillbeeffeetlveunlessmadcinwriting andsigtwdby

18

an

authorized

representative

ofeach

ofthcpazties
.

19

B Ifoneorm oreprovisionsoftheD ecreearerendered tm lawfulor

20 unenf'orceable,thepartiesshallm akegood f'aith effortsto agreeum n appropriate

21 am endm entstothisD ecree in orderto effectuatethepurposesoftheDecrce. In

22 any cvent,therem ainingprovisionsw illrem ain ln fut!forceand effucttmlessthe

23 purposesofthcDecreecannot,despitcthepm ies,bestegorts beachieved. ,

24

C .

By m utualagreem entoftheparties,thssD ecree m ay beam ended or

25 modified in theinterestsol-justiceandfairnessinordertoeffectuatetheprovisions

2b ofthisDecrce.

27

28

4

CONSENTDECREE;O RDER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 5 of 18

1

V II.

2

C O m LIAN CE AN D D ISPUTE R ESO LUTIO N

3

A .

'l'hcpartiesexpressly agreethatifthe Com m ission hasreason to

4 believethatD efendanthasfuiled to com plyw ith any provision ofthisConsent

5

D

ecrce ,

the

Com

m

ission

m

ay

bring

an

action

before this

Courtto

enforce

the

6

D ecree .

Priorto initiating such action.theComm ission w illnotifyD efendantand

7

its

legalcounselofrecord .

in

w

riting,ofthe

nature

of the

dispute.

n

is notice shall

8 specifytheparticularprovisionls)thattheCommissionbelievesDefendantl'tms

9

breached .

Absentashow ingby citherpartytbatthedelay w illcause irreparable

10 hanm,Defendantshallhavethlrty(32)daystoattcmpttoresolveorcuretlle

l1 breach .

12

B .

Tbepartiesagreeto cooperatewitlzeacb otherand usetheirbcst

13

efl'brtsto

resolve

any

dlspute

retbrenccd

in

the

E

EO

C

notice
.

14

(2 Atterthilty(30)dayshavepassedwithnoresolutionoragreementto

15

extend

the

tim

e

furlher
,

the

C

om

m

ission

m

ay

petition

this C

ourt for resolution

of

16 thedisputc, secking a11availablerelief,including an extensionoftheterm ofthc

17 D ecreeforsuch pcriod oftim emsDefkndantareshown to bein breachofthe

i8 Docreeandany reliefw hich tbeCourtdeem sappropriate.

1 9

v yj.l

20

M O NETA RV RELIEF

21

A . In settlem entofthislawsuit,D efendantshallpay $425,000.00 in

22 globalm onetaryreliefofallclaim sofJennirerGouldand any othersim ilarly

23

situated Ibm ale tbrwhom

theEEO C
.

in itssolediscretion.sceksrelief.

24

B. Defendant:sinsurancecarrier,oritsagenqshallfonvard,viacertiiied

25 m ail,a oheck toeôch indivldualidentifiodby EEOC pursuanttoSeution VI11A .
26 abovewithinthirty(30)daysofthcirreceiptofEEOC,slistofsuchindividuals;

27

provided

how

ever,thatpriorto

thedistribution

of settlem

ent funds ,

the

individuals

28

j

CONSENTDECREE;ORIII:R

l

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 6 of 18

1 identifiedby EEOC shalleach com plete,asrequired,aW -9orothertax form s

2 necessary. Them oniesshallbedesignatcd asnon-wage colnpcnsation underTitle 3 V IIandno tax w ithholding shallbem ade.Defendant'sinsurancecarrierorits

4 agcntshal!prepareand distributc 1099 tax reporting form stoeach individual

5 identitied by EBOC.Charging Party and theClaim antsarcresponsibleforpaying

6 theirshareofLaxes, ifany.

7

c. w ithinten(10)businessdaysoftlzcissuanceofeachandevery

8 settlem çntcheck and 1099 tbn'm Defendantshallsubm ita copy ofeachcheck and

9 relatedcorrcspondenee totheRegionalAttorney,AnnaY . Park,U .S.'Equal

10

Bm

ploym

ent O

pportunity

C

om

m

ission ,

255

E

astTem

ple

Street

4+

FlooraLos

l 1

A

ngeles ,

CA

90012.

12

Ix

13

A DD ITIO NAL R ELIEF TO CH A RG IN G PAR H ES A ND CLA SS

14

M xM syx s

15

A

Fora11the

C

harging

Party ,

C

laim

ants,and

w

itnesses identiiled

by

the

16 EEOC D et-endantshallapply itsusualpolicy toonly providedatesof

17

em

ploym

ent a

salary,and

position.

18

B D efendantshallrem ovcandpurgea1ldocumentscontainedin

19 personnelfïlcsorpersonnelrelatedmaterialsthatnegativclyreflectonthejob
20 perjbrm ancesofthefollowing individuals:
2 1

22

-'

-.

23

C lassM em ber

EffectiveC om m enceDate

24

Purging PersonnelFileof

25

Ne ative Inform ation

. -

1. JenniferG ould

o ctober 1,2002

26

27

2.NatashaM cGuire

N ovem ber1,2002

28

g

CoNsEN'l'DECREE;ORDER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 7 of 18

l

3. DonnaPart

August1,2004

2

4. K atieJacobs

lanuary 1,2003

a

5 .

LisaRicci

January 1,2003 .

4

-

'''

5

1 .

D ocum entscontainedin thepersonneltllesoftheforegoing

6 individualsfrom tlledatcsetforth abovetothelastdaleofherem ploym entshall

7 bepurged and rem oved from thepersormelfilesandpeo olm elrclated docum ents

8

m

aintained

by

the defendant .

Thedocum entstoberem ovedandpurgedshall

9

consistofreprim

ands
,

counseling

m

em

orandum

s,disciplinary

actions,

negative

10 com plaknts,negativepedbrm ancedocum ents,reports,crlticism s,term inntion and

11 resignation docum ents.referencestotheEEO C chargeorIaw suit,investigations,

12 andanyotherdocum cntst,hatrellectnegativelyontheirperformanccduringthe

13

tim efram ein question .

Tlw

EEOC

shallbenotifiedw ithin threedaysofthe

14 foregoing obligationsbeingm ctby Defendant.

î 5

c .

D efendantalso agrecsto changeanyterm ination fortheidentilied

16 individualsinLX(B)toavoluntaryresignation.
1 7

18

G ENER AL IN JUN CTIVE RELIEF

19
Defendantagrecsto com ply with allofTitleV lt.srequirem entswhichstate:

20

A

. N on-D iscrim ination

2 )

l

. Discrim ination Based on Sex

22

D

efendant,itsofficers,agents,m anagement(includingal1suryervisory

23

employecs),stzccessors,assigns,anda11thoseinactiveconcertorparticipation

24

withthem,orany ofthem,herebyagreenotto:(a)discrim inateagainstpersonson

25
thebasisofsexinthetermsandconditionsofemploym ent;(b)engagcinorbea
26
party to any actionvpolicy orpracticethatisintended orisknown to them tohave
27
theetlkctofharassingorintimidatinganyemployeconthebasisofscx:and(c)

28

7

(joxssxrDECREE;oaosR

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 8 of 18

l

create ,

facilitate

or perm

itthe

cxistence

of-a

w

ork

envirom

nentthatishostileto

2 fem alecm ployees.

3

2 .

Retaliation

4

Defendant,itsotEcers,agents,m anagem ent(includinga11supervisozy

5 employees),successors,assigns,andallthoseinactiveconcm'torparticipation

6 w iththem , oranyofthem ,herebyagm cnotto engagein,implem cntorperm itany

7 action,policy orpracticew ith thepup oseofretaliating againstany currentor

8 form erem ployeeorapplicantofD efendantooreithcrofthcm ,becauseheorshc

9

ilas in 1hc past ,

or durlng the term

ofthisDecree:(a)opposedanypracticem

ade

10 unlawfulunderTitleVII;(b)filedachargeofdiscriminationallegingsuch

1l practice;(o)testitiedorparticipatedinanymannerinanyinvestigation(including

12

w

ithoutlim

itation ,

anyinternalinvestigation

tmdertaken

by Defendant),

13 proceeding in corm ection withthiscaseand/orreiating to any claim ofaTitle V11

14 violation;(d)wasidentitiedasapossiblewitnessorclaimantinthisaction;(e) 15 assertedanyrightsundertlaisDecrce;or(9 soughtand/orreceivedanyreliefin

16 accordancewith thisDecree.

17

s posting

18 W ithinten(10)businessdaysaftertheEtïbctivcDateandthroughoutthe

19

tenn

ofthisD

ecree ,

Defendantshallpostnotice(attachedasExhibitRA'')ofthc

20

term

softhisD

ecrcc ,

in

its corporate

headquarters.

21

c E ualEm ploym entOpportunity consultant

.

tl

22

W

ithin thirty

days(30)altertheEffectiveDate ,

D

efendantshallretain

an

23 ouuideEqualEmploymentOpportunityConsultant('çconsultanf')with

24 dem onstratedexperiencein theareaofem ploym cntdiscrim ination and sexual

25

harassm

ent issues
,

to

im

plem

entand

m

onitorD

efendant.s

com

pliance

w

ith

Title

26

'VlIand theprovisionsol-thisD ccree .

TheConsultantshallbesubjecttothc

27

Com

m

ission's

approval,w

hich

shallnotbe

unrcasonably

w

itbheld .

If thc

28

8

CONSEN 1'DECREE;ORDER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 9 of 18

1 Comm ission doesnotapproveDcfendant'sprom sedConsultanttheComm ission

2 shallprovideD efendantw ith alistofatleastthreesuggested candidatesacceptable

3 to theCom m ission. D efendantshallbeara1lcostsassociatedw iththeselection

4

artdretention oftheConsultantand theperfonnanceoflés/her/itsduties .

n

e

5 consultantshallassistD erendantin thefollow ing:

6

l .

D cvelopingproceduresto handlecom plaintsoi-discrim ination,

7 hara sm entandretaliation;

8

2 .

Training em ployecson theirrightsandresponsibilitiesunder

9

T

itle

'V11 ,

including

butnotlim

ited

to

the responsibilities to provide a

w

orkplace

10 frecofdiscrim ination;

l 1

3 M onitoringand assuring theadequate investigation ofa1l

12 complaintsofscxualdiscrim ination/harassm entandretaliation;

1 3

4 Ensuring thatalIrem l'tsrequiredbythisDecree areaccurately

14 com piledand tim ely subm itted;

15

5 creatingappropriatcand consistentdîsciplinaly policiesto hold

t6 em ployeesandm anagersaccountabie forfailing totakeappropriateaction and/or

17 forengaging inconductprohibitedunderthisDecrcc;

18

6 Creating acentralizcd system oftracking discrim ination,

19

harassm

ent ,

and

retaliation

com

plalnts;and

20

o yyau ing

21 W ithinonchundredandtwenty(120)daysaltertheEffectiveDateorthirty

22 (3p)daysafterhiringtheConsultant,whicheverislater,alIofthefollowing
23 em ployeesin ucategory A ''shallberequired to attend atraining program ofat

,,4

Ieasttwo(2)hours .

Categol.y A

is det-m

cd

to include

allDirectors ,

M

anagersand

25
Supervisorgatthecorporatelevel,. ai1M anagers,SupervisorsandLead Personsin

26 thewarehouse;and a11StorcD irectors,Co-M mzagers,A ssistantM anagers

,

27

Departm

entM

anagcrs
,

and

fIead

C

lerks

at the

store

level.

Training fbr

28

k

PoxsexzDscltss;oRouft

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 10 of 18

' stafïrhourlyemployees(hercaftcrreferredtoasStcategoryB'')willbeatleastone

2 (l)hourinlength.Thetrainingshallbemandatoryandoccureveryyearforthe

3 term ofthisD ecree .

4

l .

A1lemployees'trainingshallincludecoveragcofthesubjects

5 ofcqualem ploym entopporm nity rightsand responsibilities,racialdiscrim ination/

6

harassm

ent,

gender discrim

ination/harassm

ent,retaliation ,

and

Defendant'srevised

7 policiesandprocedtlrcsforreportingandhandlingcomplaintsofdiscrimination
s
8 hara-qsm entand retaliation.

9

2 .

Thetraining ofCategory A em ployeessha'lladditionally

10 includetraining on how toproperly handleand investigatccom plaintsof

1 1

discrim

ination

im

d/or harassm

entin

aneutralm

anner
,

how

to take preventive and

12 correctivem easuresagainstdiscrim lnation and/orrdaliation)and how torecognize

13

and

preventdiscrim

ination

and/or retaliation .

14

3

Fortherem aindcroftheterm

ofthisDecree
,

a11 em

ployees

15 recently prom oted tiom category B tocategoryA shallreceivethcsam e training

16

given to Categoe

A

em

ployees .

asappropriate,withinthirty

(3%

days of

17 Prom ouOn.A IInew hiresin CategoricsA andB shallreceivethetraining jbrthcir

IS

catcgory,asappropriate,w

ithin

thirty

(30)daysofhire .

The

training

under this

19

partv

raph

m

ay

be

done

by

videotape .

20

4 Afterthejnitialtm ining asspecitica above,al1em ployeesshail

21 . i tàetraining atleastannu

lece ve

ally thereafterfortherelnainderorthetenn ofthis

22 o eca e .

23

5, A l1em p1oyeesrm uired to attend such training shallverify their

24 annualattendancein writing.

25

W

ithin

fbrty -

fivc(45)daysbeforctheGrsttraining,Defendantshallsubmit

26 totheEEOc adgscription ofthctraining to beprovided and an outline ofthe

27 curriculum developed forthetrainees.D efcndantshallgivethcEFI)C am inim um

28

10

èONSENTDECREE;ORDER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 11 of 18

l often(10)businessdays'advanccwrittennoticeofthcdate,timeandlocationof
2 the tirsttraining program providcd pursuanttothisDecree.D efendantagreesthat 3 anEEO C representativem ay attend any oftheannualtrainingprovidcdunderthîs

4 dccree,including the tirstone.

5

D cfendantclaim sthatithasprovidedtraining ibrCategory B em ployeesin

6 2008,priortothcenteringofthisDecree.TheConsultantwillconsideringood

7 faith w hetherthistraining issuffk ienttom eetthcobligation forCategory B 8 em ployeesforthe firstyearofthcdecreeandnotifytheEEO C accordingly.

9

10

E. PerfonuanceEvaluations

l 1

D efendantw illincludcin each Category A employee'sannualperform ance

12 evaluation acategory on com pliancew ith Defendant'sdiscrim inatlon and anti-

13 reo liation policiesand procedures,and astatem entacknow ledgingthatnon-

14 compliancecouldsubjcctthesupervisoryemploycetodiscipline.

15

xl

16

ItEco lm K EEPIN G A e R EPOR TIN G

17

A Record K eeping

18

Dcfendantshallwork w ith theConsultantto cstablish arecord-keeping

19 procedurethatprovidesforthecentralizcd tracking ofdiscrim inationcom plaints

20 dthem onçtoring ofsuch com plaintstopreventretaliation.Thcrecordsto be

21 m ainu ine(,. shallinclude:

22

1 A lldooum entsgencrated in connection w ith any com plaint

.

23

investigation

into ,

orresolution

orevery

colnplaintofdiscrknination

orretaliation

24 forthedtzation oftheD ecree andtheidentitiesofthcpartiesinvolved;

25

2 .

A l1form sacknowledging em ployees'receiptofD efendant's

26 tevised anti-discrim ination and antwretaliation policy;and

27

3 .

A Ildocum entsveri'fyîng theoccurrenceot-alltraining sessions

28

1 j

CoNsylxrfDECREZ;O RDER

l

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 12 of 18

1 and nam esand positionsofallattcndeesforeach session asrequired underthis

2 D ecrce.

3

D efendantshallm aketheaforem cntioned recordsavailabletotheEEOC

4 withinten(10)businessdaysfollowingawrittenrequestbytheEEOC.

5

B . Reporting

6

In

addition to

the notices to

the EEO

C

speciiied

above ,

Defcndantshall

7

provide

the follow

ing

reports to

theEEOC

in w

riting ,

by

m

ailorfacskm

ilc:

8

1 .

w ithinonchundredandtwenty(120)daysaftertheEffective

9

D

ate ,

D

efcndant shall subm

ittotheEEO

C

an

initialreportwbioh

contains:

10

(a) A copyofitsdiscriminationandanti-retaliationpolicy;

1 1

(b) A summaryof-theproceduresandrecord-keeping

12 m ethodsdevelopedw iththeConsultantforcentralized tracking ofdiscrim ination

13 com plaintsandthem onitoring of'such com plaints' ,

14

(c) A statementconfirmingthattherequirednotices

15 pertaining to thisDecreeandthereviseddiscrim ination and anti-retaliation 16 policies,ifany.havebeen postedand disselninated;and

17

(d) contirmationthatthetermsunderSectionIX were

1 8

jeted

com p .

19

2 Defendantshallalsoprovidethefollow ing reportssem iannually

20 tlaroughouttheterm ofthisD ecree:

21

(a) n cattendancelistsofallattendeesfora11training

22 sessionsrequked underthisD ecreethattook placeduringtheprevioussixmonths;

23

(b) AcknowIedgmentsofreceiptof'thediscriminationand

24 harassm entpolicy fora)lem ployecshired during thcprevioussix m onths:and

25

(c) A dcscriptionot-al1discrim ination and/orretaliation

26 com plaintsm adesincethe subm ission oftlleim m ediately preccding report

27

htreunder
.

Thisdescription shallincludethenam csoftheindivîdualsalleging

28

la

& xssxrbscass;oaoeR

'

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 13 of 18

l harassm entorretaliation,thenatureofthehacassm entorrctaliation,thenam csof 2 theallegedpcrpetratorsofharassm entorretaliation,the datesofthealleged 3 harmssm entorretaliatiom abriefsum m ary orhow each com plaintwasresolved,

4 andtl4eidentityofthepersonts)whoinvestigatedorresolvcdeachcomplaint.If
5 no resultshave bcen reached asofthetim eofthereport,theresultshallbe

ti included in thenextrepol't.

7

3. D efendantshallprovldeareporttotheEEO C dem iling any

B changesoftheproceduresorrecord-kccping m ethtxlsforcentraiized tracking of

9 discriminationcomplaintsandthemonitoringofsuchcomplaintswithinthirty(30)

i0 daysbefore im plem enting suchchanges.

! I

xu.

12

cosTs oF ADM INISTRATION AND IM PLEM ENTATION

13

o F CO NSEN T D ECREE

14

Dcfendantshallbearallcostsassociatedwith itsadministrationand

15 im plem entation ofitsobligationsunderthisConsentD ecree.

16

xlII.

l 7

co s'rs AN llA -IV O R NEYS'FEES

18

Each party shallbearitsown costsofsuitand attom eys'fees.

19

x Iv

20

M lscEt,tzAx xo t,s PR o v lsïo x s

21

A ouringtheterm ot-thisconsentm cree, D efendantshal!provideany

22 potentJajsuccessor-in-interestwithacopyofthisConsentDecrcew ithina

23 reasonab1etimeofnotlessthanthirty(30)dayspriortotheexecutionofany

24 agreem enttbracquisition orassum ption ofcontrolofany ora11ofD efendant's

25

facilities,

orany

other m

aterialchange

in

corporate

structure ,

and

shall

26

sim

ultmzeousIy infbrm

thcEEO C

ofsam e .

27

B
.

D uring the term ofthisconsentDecree,D efendantand ia successors

28

17

CONSENTDECREE;ORDBIt

?

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 14 of 18

1 shallassurethateachofitsofficea , m anagcrsand supervisorsisawareofany

2 termts)ofthisDccrecwhichmayberelatedtohis/hcrjobduties.

3

C.

U

ntess

otherw

ise

stated.a11notices ,

reports and

correspondence

4 requiredunderthisDecreeshallbedeliveredtotheattentionoftheRcgional

5

A

ttorney ,

Allna

Y

.Park,t;.S.EqualEm

ploym

entOppoftunity

C

om

rnission ,

Los

6

A

ngeles D

istrict O

ftice ,

255

E

.Tem

ple

St.,41

F1,,LosA ngeles, CA

90012.

7

D ,

ThepartiesagreetoentryofthisDecreeandjudgmentsubjecttofinal

8 approvalby thcCoul't .

9

A

11partjes ,

through

theundersigned,respectfully

apply

for and

consentto

10 thcentry ofthisConsentD ecreeOrder .

1 l

U s BQUAL EM PI,O YM EN T

12

OPPORTIJNITY COM M ISSION

13

A nnaY Park,RegionalAttom ey

Derek Li>Supenisory TrialA ttorney

14

Gregory L.M cclinton SeniorTrialAttorney

l 5

V ictorViram ontes,Tn:alA ttom ey

18

17

=-

.

18 Dated:A'o ipvf).y2008

By: - X'--

*'1

A nna Y Park'--'--'..-

19

A tt

om eysforplainuf'fEEO C -'

2o

21

sw z a/n

zdvtpsugx okw (s H ol.rz

2:2

A ProfessionalCop oration

23

Ray J.A rtiano,Esquire

Ljubjsau(ystîc,Esquirc
24

25

26 Dated; 27
28

,2008

B y:
Ray J.Artiano,Esquire AttorneysforDefendant
j4
CONSENTDECREE;ORIIER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 15 of 18

1 shallassurethatea8hofitsoffoers,m anagersmldsupen isorsisa'wareofm1y

2 termls)àfthisDecroewhichmayberelatedtohis/herjobdtrties. ,

3

C.

Unlessotherw

isc

statedsa11notices .

repcrtsand

gorrespondence

4 requitedunderthisD eoreeshal!bcdeliveredtotheatientbn oftheRegitmal

5

A

ttorney,

A

nna

Y

.Park,U

.S.EqualEm

ploym

entO

pportunity

Com

m

ission ,

Los

6 AngelesDiseict0ft1= . 255H.Tem pleStk,401F1,,Lcs A ngeles,CA 90012.

7

D ,

'lhepartiesagree'tocntryofthisDecreeeandjudgmentsubjecttcfinal

.

8 approvalbytheCouru

'

9

A11parties,throug,htlx undersigned,Jespectfullyapply forandconsentto

' ,

.10 theentzy cfthisConsentDecrecOrder

'

.

11

U .s.EQUALEM PLOYG NT

la

OPPORTUNIW COM M ISSION

.
13 j4

M naY ParkmRegiona!Attom ey

'

D

erek

L9 ,

Superviscry

TrialA

ttèm

ey

GregoryL.M cclinton)SeniorTrialAttorney

.
15

VidorViram ontes,TrialAttorney

16

77

jg Dated:

,2008

By:

.

-

.

19

AnnaY .Park

Attom eysforPlaintiffEEoc

è

20 .

z1 f

'

E&

STW IARHANO SHINOFF drHOLIZ

22

'

A ProfessionalCorporation

23

R ay J.Artiano,Bsquire

tjubisaKostic,Es uire

24

.

25
26 Datu :
27
28
'
j

?25200:
'

By:

-

-

ltay J.A rtiano,Esquire

AttorncysforD efendant

:4

CoNs> rDEcitu ;oaoEx

.

'
'
s

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 16 of 18

1

2

M CDONALD Ca4& IAo WIIB ON LLP

PatLundvall,Esqtlire

3

M imndaDu.Esqutre

.

4

5
6 Dated: .
7 8

/008

By: irandaDu,Esquh.e
AttorneysforDefendant IORDER

9 G OO D CAU SE APPEARING :

lc

TheprovisionsoftheforegoingConsentDecriearehereby approvedand

l, com pliancewith allprovisionsthereofiaHEREBY ORDEQFD .n e Courtshall

12 retainJurisdictienassetforthinthisDecree.

l 3
j4 IT IS SO ORDERED .

l 5 16

17

1 g

D

ate;

Sep

te
-

mber

5,

2008

19

20 yf
2 l
///
22
23 ///

TheHonorableDavidA .Erza U nited StatesD istriotCourtJudgc

24 /#
25
#/
26
27 ///

28

15

CONSENTDECREE;ORDER

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 17 of 18
A P P E N D IX A

Case 3:04-cv-00229-DAE-RAM Document 176 Filed 09/05/2008 Page 18 of 18

''.W-.)/r

..
,

k-..;kt

IJ.S.EQUALEM H ZIW M ENT OPPORTUNITY COM M ISSION

NO TICE O F ENTRY OF CO NSENT DECREE TO : M L EM W ,OYEES OF SCOLA RI'SW AREHOUSE M ARKETS,rNC.:

R'heU.S.EqualEmploymentOpportunityCommission(%:EEOC'')filt)daIawsuitinthe
UnitedStattsDistrictCourtlbrtheD istrictofNevadaentitledEEOC v.Scolari'sW arehouse
M arkets.Inc-,CaseNumberCV 04-0229.TheEEOC'Slaw suitalleged thatScolari'sW archouse
M arkets,Inc.,conductedapattenzandpradiceol-sexualharassm entazldretaliationagaimstaclass offem aleem ploycesacrossisNevadastores.Scolari'sW arehouseM arkets,Inc. deniesIiablility. Scolari'sW arehouseM arkds,Inc.doesnottolerateharassmcntorrelaliation.

Thepartiesmutuallyresolvedthematterbycllteringintoathree(3)yearConsentDecree.
UndertheConsentDecree,Scolari'sW arehouseM arkets,Inc.istopaym onetaryreliefandîo
implemcntinjunctivrrellef. Someofthcinjunctivereliefincludes:(1)EhO training,(2)hiring anE1!0 Consultant,(3)reviewingEEO policiesandprocedures,(4)preventingrctatiationand(5)
revicwingEEO complaintprocedlzrcs.

n eEEOC enforccsthefederalIawsagainstdiscrim ination inem ploymenton thebasisof disability,race,color,religion,natioualorigin,sex,andagc.TheEEOC chargesnofecsandhas employecswhospeakIanguagesotherthanEnglish. Youmay contactthcEEOC at:

U.S.EQUM .EMPLOYM ENTOPPORTUNIR'Y COM M ISSION
333LasV egasB lvd.South,Suite 8112 LasVegas,N V 89101
TBLEPHONE NITMBER:(702)388-5013()r(800)669-4000
N oadionm aybetaken againstanycmploytx orbyany mM agementofMciatofScolari's
W arehouseM arketq,Illc.fbr:(1)opposingdiscriminatorypracticesmadeunlawfulbyfederallaw,
(2)lilingaçhargeorassistingorparticipatinginthetilingofachargeofdiscrimination.or(3)
assistingorparticipatinginaninvestigation broughtunderTitleVII. A ny such retaliatory ad ion should bcreporte.d to theEEO C.

TIIB IS AN OFFICIAL N OTICE A ND M UST NO T BE D EFACED HY ANYON E ThisNoticem ustrem ain postcd for3yearsfrom Sept. 5200:,and znugtnotbealterod:defaeed orcovercd by anyotllerm aferial.Anyquestiunxaboutthi:Noticeorcom pliancew ith itsterm s znay bedirected to:EEO C LeaalUniq 255 EastTcm pleStreet,4'bFloor,Lo,Angvlts.CA 90012.
ltisso ORDERED this 5th day ofSept.2008 .

HonorabltDavid A.Ezra IJN ITED STATES DISTRICT JUDGE

 
 488 F.Supp.2d 1117 (2007)
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
SCOLARI WAREHOUSE MARKETS, INCORPORATED, A Nevada Corporation, d/b/a/ Scolari's Food and Drug; and Does 1-10 Inclusive, Defendant.
CV No. 04-0229-DAE-RAM.
United States District Court, D. Nevada.
May 22, 2007.
1112890123 *1118 *1119 *1120 *1121 *1122 *1123 Anna Park, Gregory L. McClinton, Victor Viramontes, U.S. Equal Employment Opportunity Commission, Los Angeles, CA, for Plaintiff.
Lesa Wilson (pro hac vice), Ljubisa Kostic, Stutz Artiano Shinoff & Holtz, APC, San Diego, CA, Miranda M. Du, Patricia K. Lundvall, McDonald Carano & Wilson, Reno, NV, for Defendants.
AMENDED ORDER DENYING SCOLARI'S MOTION FOR SUMMARY JUDGMENT ON THE PATTERN-ORPRACTICE CLAIM AND FOR ALL BUT TWO OF THE CLAIMANTS, NAMELY, MS. FRENCH AND MS. RENFROE; DENYING SUMMARY JUDGMENT ON SCOLARI'S PUNITIVE DAMAGES CLAIM; GRANTING SUMMARY JUDGMENT TO DISMISS MS. FRENCH AND MS. RENFROE; GRANTING THE EEOC'S MOTION FOR LEAVE TO AMEND COMPLAINT; AND DENYING THE EEOC'S MOTION TO STRIKE EVIDENCE INSOFAR AS IT PERTAINS TO THE EVIDENCE IN THIS MOTION
DAVID ALAN EZRA, District Judge.
On January 5, 2007, this Court heard Scolari Warehouse Markets, Inc., a Nevada Corporation and d/b/a Scolari Food & Drug Company's ("Scolari") Motion for Summary Judgment. Additionally, this Court heard the Equal Employment Opportunity Commission's ("EEOC") Objections and Request to Strike Scolari's Evidence. Gregory McClinton, Esq., appeared at the hearing on behalf of Plaintiff; Ray J. Artiano, Esq., appeared at the hearing on behalf of Scolari. After reviewing the motions and the supporting and opposing memoranda, this Court DENIES Scolari's Motion for Summary Judgment For the Pattern-or-Practice Claim and For All But Two of the Individual Claimants, Namely, Ms. French and Ms. Renfroe; DENIES Scolari's Motion on the Punitive Damages Claim; GRANTS Summary Judgment To Dismiss Ms. French and Ms. Renfroe; GRANTS the EEOC's Motion for Leave to Amend Complaint; and DENIES Plaintiffs Motion to Strike Evidence Insofar As It Pertains to Evidence in This Motion.
BACKGROUND
On May 6, 2004, the EEOC filed a Complaint against Scolari on behalf of a class of "similarly situated" individuals, employed by Scolari, on the basis of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964. The Complaint was amended on July 1, 2004. Since on or about January 1999,[1] the Charging Party, Jennifer Gould ("Ms. Gould"), and the other individuals claim that they were subjected to a hostile work environment at Scolari's stores, which Scolari's supervisors perpetuated, and that they were retaliated 1124 against for complaining of the harassment.[2]*1124 There are roughly seventeen (17) named claimants involved in this case and an unnamed "class" of similarly situated females for whom the Commission is seeking relief.[3]
A. Scolari's Company Policy Regarding Harassment
Scolari has an Associates Handbook that states its commitment to equal opportunity, to equal treatment, and to its policy on sexual harassment. Each employee is asked to sign an acknowledgment that they have received after reviewing the Handbook. Scolari also has a company policy prohibiting unlawful discrimination that directs

an employee to report acts of discrimination to the employee's supervisor, the Store Manager/Department Manager, Personnel Manager, or to the Human Resources Director. After which, the policy states that the matter will be investigated promptly and handled appropriately. Additionally, Scolari provides a training course regarding unlawful discrimination and harassment.
B. Charging' Party: Ms. Gould
According to Ms. Gould's deposition testimony, on or around October 5, 2002, Ms. Gould was standing in a circle with three other individuals, Kathy Cain, Lynette Morris, and Head Clerk Mike Lyman. A then-sixteen year old employee, named Brandi Stockford, allegedly approached the circle and announced that she was not feeling well. In response, Mr. Lyman allegedly replied, "why don't you suck some cock, you'll feel better," to which Ms. Cain allegedly responded, "I would like to bite one off."[4] Ms. Gould talked to Ms. Morris that day and told her that she believed that "what Mike had said was bad." Ms. Gould then wrote down what she heard and who was in the circle, and she gave the note to her Store Director, Larry Smith.[5] She also expressed her concern with Mr. Lyman's managerial style and reported that she saw Ms. Stockford giving Mr. Lyman a massage a week or so before.
Following those events, Thomas Trebesh, a Directors[6] for Scolari, began handling the case. According to a typewritten letter signed by Ms. Gould, Mr. Trebesh asked her questions and showed her statements from some of the other individuals that were involved in this incident. Two notable statements were from Ms. Cain and the 1125 Store Director, *1125 Mr. Smith. Ms. Cain made a handwritten statement that she had no knowledge of Ms. Stockford being sick, and that she had not heard any conversation between Ms. Stockford and a manager. Mr. Smith also wrote a handwritten statement, denying any inappropriate comments, though he had not been standing in the circle at the time of the alleged harassment. Ms. Morris, too, subsequently denied hearing any inappropriate remarks, according to an EEOC investigator's questions and handwritten responses.
Based on those statements, Scolari made the decision to suspend Ms. Gould and, then, to terminate her employment. The termination letter, from Tracy Lerud, Personnel Manager, stated, "Your discharge is a result of your omission of facts, falsification of personnel or other records, or giving false testimony or witness." (Scolari's Ex. 3-W.) Mr. Lyman's employment was not terminated following this incident.[7] Ms. Gould appealed that decision to a three member panel: Rod Alec, Donald Crank, and Jim Nelson were the panel members.[8] The panel unanimously agreed to uphold Ms. Gould's termination. On October 31, 2002, Ms. Gould filed a Charge of Discrimination with the EEOC.
Subsequently, Ms. Gould wrote a letter to Ms. Morris, dated June 7, 2003, to encourage her to come forward with the truth and to describe the difficulty that she had in obtaining a job following her termination. Additionally, on January 26, 2006, Mr. Trebesh testified during his deposition that Ms. Cain confessed that she previously had lied about not hearing Mr. Lyman's comment. During Ms. Cain's deposition, she asserted her Fifth Amendment privilege not to testify. As for Ms. Stockford, at first she denied that Mr. Lyman made those comments because, as she claimed during her deposition on May 9, 2005, "she was scared" of getting fired. During her deposition, however, Ms. Stockford confirmed Ms. Gould's story and stated that it was wrong that she previously lied.[9]
On August 22, 2003, Mr. Trebesh wrote a letter to Ms. Gould, stating,
Since our original investigation, we have obtained additional information that would lead us to conclude that what occurred was actually less than clear. For this reason and in the interest of fairness, we want to give you the benefit of the doubt. We would like to offer you reinstatement to your former position as a checker at $14.45 per hour. We would hope that you seriously consider this offer.
(Scolari's Ex. 3-LL.) (Emphasis added.) Ms. Gould turned down the offer.
C. Other Claimants Alleging Harassment
The sixteen (16) other claimants alleging harassment are: Natasha McGuire, Melissa Orsie, Jennifer Dicus, Annalisa Schultz, Brandi Stockford, Rachael Kennedy, Donna Park, Melody Warren (Wagers), Elaine Cox, Dana

1126 Gendreau, Lisa Ricci, Barbara LaForge, Sandra Serrano, Julia Setzer, Katie Jacobs, and Christina Thomas.[10] *1126 (Scolari's Revised Apx. A.) Of those claimants, five of them ended their employment before October 2002, the date on which the target event occurred that triggered the instant Complaint.[11]
Scolari has numerous stores, each of which is accorded a number, such as Store No. 101, 119, or 127. The claimants involved in this case worked in various stores.[12] The most complaints appeared to have occurred in Store No. 119, where Mr. Lyman was employed.
D. Conciliation
On August 5, 2003, the EEOC sent a Letter of Determination to Scolari regarding Ms. Gould's charge, "invit[ing] the parties to join with it in a collective effort toward a just resolution of this matter." (Scolari's Ex. 3-PP). That same day, the EEOC sent Scolari a conciliation letter, summarizing the relief that the Commission sought. ( Scolari's Ex. 3-QQ.) The letter further stated that, "other reasonable resolution alternatives and offers, besides those listed above, can be proposed," again inviting Scolari to join in a collective effort toward a just resolution of the matter. (ID.)
The EEOC sent a third letter on September 30, 2003, notifying Scolari that a previous letter that stated that conciliation had failed was premature. (Scolari's Ex. 3-TT.) As such, the EEOC provided the parties with another opportunity to resolve the issues in the conciliation process. That letter further stated, "Ms. Gould was informed that Respondent is offering reinstatement, two months of earnings (less mitigating damages), and three weeks vacation time. During this discussion, Ms. Gould stated Respondent's offer was unacceptable." (Id.) On September 24, 2003, the EEOC mailed a letter to Scolari's counsel, indicating that efforts to conciliate the charge were unsuccessful. (Scolari's Ex. 3-UU.)
On May 6, 2004, the EEOC filed the instant Complaint. Additional facts will be raised as they become relevant.
STANDARD OF REVIEW
Rule 56 requires summary judgment to be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Porter v. California Dept. of Corrections, 419 F.3d 885, 891 (9th Cir.2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial 0907 usually, but not always, the defendant 0907 has both the initial burden of production and the 1127 ultimate burden of persuasion on a *1127 motion for summary judgment. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000). The burden initially falls upon the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548).
Once the moving party has carried its burden under Rule 56, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial," and the moving party may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In setting forth "specific facts," the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f) ("When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties."). "[A]t least some `significant probative evidence' " must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). "A scintilla of evidence or evidence

that is merely colorable or not significantly probative does not present a genuine issue of material fact." Addisu, 198 F.3d at 1134.
When "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id. Inferences may be drawn, however, from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631.
DISCUSSION
Scolari moves for summary judgment or, in the alternative, partial summary judgment, on three grounds. First, it argues that the EEOC did not make a genuine, good faith effort to resolve this matter informally through conciliation. Second, it contends that, even when viewing the facts in the light most favorable to the EEOC, it cannot establish a pattern-or-practice of harassment. Third, it alleges that the individual claimant's claims should be dismissed, including Ms. Gould's. Even if there is merit to the EEOC's claims, which Scolari does not concede, Scolari also argues that the EEOC cannot obtain punitive damages under the facts of this case.
Before reaching those arguments, Scolari argues that the EEOC engaged in misconduct by swearing to false facts related to claimants. In support, Scolari picks apart the EEOC's responses to interrogatories, comparing the responses to some of the claimant's deposition testimony. This Court sees no merit to Scolari's argument. The interrogatories contained some information that might not have been entirely accurate. For instance, contrary to what the EEOC noted in its responses, Ms. Cox stated that Mr. Barnes, her store manager, never made sexual 1128 advances toward *1128 her (though she did testify that he showed her nude pictures of himself, which displayed him "standing completely naked with a pair of high heels on and a feather boa") (Cox Depo. at 52); Ms. Park stated that her manager, Mike Hutton, did not say, "I would like to get with you," but rather that he would make comments about her "behind, saying that [she] had a booty like a black girl" (Park at 37), that she was offended by those comments (Park at 37), and that he would make sexually explicit comments about women shoppers ( Park at 39, 64); Ms. Gendreau stated that she did not recall whether she mentioned indecent photographs to a co-worker that she saw while developing film, and she did not mention the photographs to her store director (though she did testify that a supervisor showed her nude pictures of him and his girlfriend and made lewd comments) (Gendreau at 47, 57, 72-73, 81, 89-90); and Ms. Ricci did not report complaints about her boss, named "Tom Hunter" (though she did claim that he discussed with her his penis size and his bad sexual relationships, as well as rubbing his penis against her back on multiple occasions and telling distasteful jokes) ( Ricci Depo. at 8, 45, 53). Scolari also criticizes the EEOC for naming as a claimant a person who worked at Scolari for one day.
There is no claim that the EEOC intentionally lied about its responses or that it swore to facts knowing that they were false. See, cf., Morales v. Cooperative of Am. Physicians, Inc., Mutual Protection Trust, 180 F.3d 1060, 1063 (9th Cir.1999) (holding that an interrogatory response in a medical malpractice action that was not entirely accurate did not constitute a statement concealing the existence of an insurance policy to fall under the litigation privilege exception). The EEOC simply put forth its story, based on information obtained from said claimants before responding to the interrogatories, that, in retrospect, may not have been entirely accurate.[13] The fact that there may have been some inconsistencies does not indicate that the claimants were lying, as memory fades. The point is that the EEOC is trying to prove, and as this Order finds that the EEOC has proved, that there are sufficient allegations of sexually harassing conduct, which may or may not have been reported to superiors for a variety of reasons. Thus, there is no evidence of misconduct, much less intentional misconduct.
A. Conciliation
Scolari argues that "the EEOC failed to outline the basis for its cause determination, its theory of recovery, or the calculation of its demand for $790,000.00 or more." As such, Scolari maintains that "the EEOC engaged in

coercion rather than in meaningful conciliation." (Scolari's Motion at 29.) The EEOC responds that it engaged in, at least, two formal rounds of conciliation, and, according to the EEOC, an additional pre-lawsuit conference outside of the formal conciliation. (Opposition at 41.) First, in its conciliation letter, the EEOC sought $250,000.00 plus lost wages for Ms. Gould and $150,000.00 per claimant (which, at that time, numbered three), plus other non-monetary forms of relief. The maximum under the law is $300,000.00 in compensatory and punitive 1129 damages for each *1129 claimant. See 42 U.S.C. § 1981a(b)(3)(D). Scolari offered $4,300.00 in backpay for Ms. Gould and nothing for the other claimants, which was unacceptable to Ms. Gould and well under the proposed amount. Granted, the EEOC, to the best of this Court's knowledge, did not present a full calculation for its demand. Nonetheless, because that amount was well within the confines of the law, this Court cannot find that the amount that the EEOC proffered was excessive or made in bad faith given the seriousness of the allegations.
The EEOC outlined, as much as necessary, the basis for its cause determination when it specified the charges in its conciliation letter, namely, that it was charging sex-based harassment and retaliation claims. The fact that it did not outline, in explicit detail, each claim and the theory for each claim at that stage of the proceedings is no reason to find bad faith. "[D]istrict courts within the Ninth Circuit have adopted the majority approach and have held that the district court should focus on whether the EEOC provided the employer with an opportunity to confront all the issues." EEOC v. Lawry's Restaurants, Inc., No. CV 06-01963DDP, 2006 WL 2085998, at *2 (C.D.Cal. July 17, 2006) (emphasis added). "This approach comports with the statutory language in Title VII, which gives the EEOC discretion in determining whether a conciliation agreement is acceptable." Id.
The EEOC conducted an Initial Intake Questionnaire for Ms. Gould, further telephonic interviews, and it obtained other written statements from her concerning her charges before filing a Charge of Discrimination on October 31, 2002. (Scolari's Ex. 3-M, 3-N, 3-Y, 3-Z, 3-AA, 3-BB.) An EEOC investigator also interviewed Ms. Cain and Ms. Morris, the other two people in the circle with Ms. Gould at the time of the triggering incident, as well as the alleged victim, Ms. Stockford, and one other female employee of Scolari's, Melody Wagers. (Scolari's Ex. 3-II, 3JJ; EEOC's SOF at 163.) After conducting that investigation, the EEOC contacted Scolari, offering it, at least, two formal rounds of conciliation and, according to the EEOC, one post-conciliation attempt to settle.
Those actions occurred in 2002. The Complaint was filed in 2004, giving the parties adequate time to resolve the issues independent of the Court. See Lawry's Restaurants, 2006 WL 2085998, at *2. Furthermore, there was sufficient information at the employer's disposal to probe and to confront all of the issues present at that time.[14] Like the district court found in Lawry's, this Court, too, finds that "it is unnecessary to stay the proceedings pending further conciliation efforts because the parties have reached an impasse on a variety of issues and additional settlement discussions would be futile." Id.
B. Pattern-or-Practice
Under Title VII, the EEOC may bring a pattern-or-practice action on the basis of sexual harassment. See EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1071 (C.D.Ill.1998). To prove a systemwide, pattern-or1130 practice of discrimination, the EEOC must prove, by *1130 a preponderance of evidence, that the sexual harassment was Scolari's "standard operating procedure," rather than isolated incidents. Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); see also Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir.2005). "Discriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of her gender." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir.1998). A pattern-or-practice of harassment ultimately might have a "chilling effect" on the women in the workforce, causing them to leave out of constructive discharge or otherwise impairing the working environment.
In determining whether claims of sexual harassment might amount to a hostile work environment, a claimant must allege a "pattern of ongoing and persistent harassment severe enough to alter the conditions of employment." Burrell v. Star Nursery, Inc., 170 F.3d 951, 954 (9th Cir.1999) (citation omitted). "The working environment must `both subjectively and objectively be perceived as abusive' because of the sexual harassment." Id. at 954 (citing Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995)).

"In reviewing the record, the trier of fact must answer two main questions: (1) was the complainant, `because of her sex, subjected to such hostile, intimidating, or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked[,]' and, if so, (2) was the defendant's response or lack thereof to its employees' behavior . . . negligent." Mitsubishi, 990 F.Supp. at 1071 (citation omitted). The first prong requires both an objective and a subjective analysis. See id. The second prong requires an inquiry into whether the employer knew or should have known of the harassing behavior, for example, through notice to the employer or through frequent, common and continuous harassing behavior. See id. at 1071, 1074. "An employer can be said to be negligent for company-wide sexual harassment when; it has a policy or practice of tolerating a work environment that it knows or should have known is permeated with sexual harassment, but does not take steps to address the problem on a company-wide basis." See id. at 1075. If there is a company-wide problem, "[s]teps must be taken to determine whether individual incidents, which occur frequently and continuously, are indicative of a larger problem requiring a company wide response." Id. (citation and internal quotation marks omitted).
Scolari argues that the circumstantial evidence that the EEOC provides and on which it relies does not establish a triable issue of fact to satisfy either prong of the pattern-or-practice analysis. It focuses on the total number of claimants (17) versus the total number of employees solicited (5,200). To be sure, statistics are one method by which to prove a pattern-or-practice claim, but they "are not irrefutable." Teamsters, 431 U.S. at 339-40, 97 S.Ct. 1843. They must be viewed in light of the surrounding circumstances of the case. See id. at 340, 97 S.Ct. 1843. Even if this Court were to accept Defendant's statistic over the EEOC's objection, (EEOC Request to Strike at p. 25, fact 62), the EEOC claims that it has received over 500 complaints by women and men attesting to the hostile work environment at Scolari and to the company's failure to remedy the harassment. (Amend. Opp. at 1.) This Court does not make a determination at this stage concerning whether or not that is true, but, in taking the 1131 evidence in the *1131 light most favorable to the EEOC, it accepts, for now, that there may be more than 17 claimants out there. (Decl. Gregory McClinton (stating that "[t]here are 17 named class members and an unnamed class of similarly situated females for whom the Commission is seeking relief') (emphasis added)). The fact that the EEOC, at this juncture, may have been able to identify only 17 claimants, out of all possible employees solicited, does not indicate that there is no hostile or harassing work environment, even assuming, for now, that that statistic is true.
There are multiple reasons that people may not step forward, such as out of a fear of losing their job or being singled out for more harassment. This is particularly true in cases, such as here, where one employee has stepped forward and has lost her job and others have left, possibly because of coming forward or feeling uncomfortable for being singled out. This Court finds striking that all but one claimant has left her employment with Scolari. This Court does not care to speculate about the reasons why other employees have not been willing to sign on to the Complaint; it merely concludes that it does not find the minimal statistical evidence that Scolari provides persuasive because there are numerous other reasons to explain away the comparatively small number of claimants involved in this case.
1. Harassing Behavior
Here, the EEOC has presented numerous instances of undisputed harassing behavior that was directed at the claimants based on their sex. Some of the comments were so severe that they adversely could have affected working conditions, such as "look at the camel toe on that thing. I could ride that all day" (Kennedy Depo. at 61-62); "show me your tits" (Warren's Depo. at 55); a comment by Mike Lyman to Ms. Gould about "how well he ate pussy" (Gould Depo. at 31); and displaying pictures of a sexual nature involving nudity. Objectively, a reasonable person could find an environment in which those conditions occurred hostile, and, subjectively, the named claimants could have perceived those conditions as being hostile. Still, the question remains whether those acts, legally, rise to the level of a hostile work environment, that is, whether those acts are sufficiently severe or pervasive.
The most frequent acts of sexual harassment appear to have occurred in Store No. 119, mostly by Mike Lyman. For example, Mr. Lyman allegedly told Ms. Stockford to "suck some cock" when Ms. Stockford told him that she was not feeling well; Mr. Lyman allegedly made unwelcome "vulgar comments" to Ms. Warren, such as "show me

your tits" and "I had a dream that you were a "topless dancer" (Warren's Depo. at 55, 60); and Mr. Lyman allegedly told Ms. Gould about "how well he ate pussy." Another occurrence in Store No. 119 was when Brandon Hood, Ms. Kennedy's Manager, allegedly told her, "look at the camel toe on that thing. I could ride that all day."
Although the acts occurring in other stores possibly were less frequent, some were quite severe in nature. For instance, Ms. Ricci's boss, who apparently worked in Store No. 123, discussed his penis size and bad sexual relationships with her and rubbed his penis against her back on multiple occasions; a man named Mr. Barnes showed photographs to Ms. Cox, who worked in Store No. 120, that displayed him "standing completely naked with a pair of high heels on and a feather boa"; and incidents of various sexually harassing behavior occurring at other stores, such as Store 24 and Store 26, to Ms. Jacobs that involved questions about sexual positions that she had had with boyfriends, rumors being spread about Ms. Jacobs "giving blow jobs in the produce cooler" and 1132 *1132 "flashing her breasts to the produce guys," and a survey that was conducted in which guys at work voted her "best butt, biggest breasts, and DSL lips, which means dick sucking lips." (Jacobs' Depo. at 25, 30-31, 86, 90, 102.) Those acts reasonably could be construed as being more than merely offensive, but as being sufficiently harassing in nature to alter conditions at work negatively.
Some of the harassing behavior, such as supervisors or assistant managers touching or brushing up against some female employees by rubbing hips (namely, Ms. LaForge and Ms. Schultz) (LaForge Depo. at 33; Schultz at 38) or a supervisor showing an employee (namely, Ms. Gendreau) nude pictures of him and his girlfriend and making lewd comments, though inappropriate and both objectively and subjectively offensive, some might suggest may not rise to the level of "severe or pervasive" to form a claim of hostile work environment. Nonetheless, this Court is dealing with a "pattern-or-practice" of harassing behavior that, when the instances of harassment are taken in combination, could rise to the level of a hostile work environment. The majority of the instances of harassment by employees and/or supervisors or assistant managers that occurred across Scolari's stores within a matter of years (between January 1999 through, to the best of this Court's knowledge, sometime in 2003) were sufficiently severe and pervasive, both objectively and subjectively, to rise to the level of a hostile work environment, particularly when viewed in the light most favorable to the EEOC.
Furthermore, these instances are but a handful of examples. As mentioned, the EEOC maintains that it has received over 500 complaints by women and men attesting to the hostile work environment at Scolari and to the company's failure to remedy the harassment, which could be further established at trial. See EEOC Amend. Opp. at 1; Decl. Gregory McClinton (stating that "[t]here are 17 named class members and an unnamed class of similarly situated females for whom the Commission is seeking relief'). This Court is not basing its conclusion that the first prong of the Mitsubishi test has been established on that possibility, as there is sufficient evidence without it to reach this conclusion. It merely emphasizes that the examples provided may not tell the full story; rather, they comprise but a subset of what may be to come. Though, even without more, there is enough here to satisfy the first prong.
2. Scolari's Response to Behavior
This Court now turns to the second prong, i.e., Scolari's response or lack thereof to the harassing behavior. First, this Court notes that, although Scolari relies on its company policy for safety, where a tangible employment action has occurred, such as termination, the employer is strictly liable. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Thus, in the case of Ms. Gould, and possibly other claimants, Scolari's policy will not save it, if her termination, in fact, was based on her act of informing management of the situation with Ms. Stockford.
Second, when no tangible employment action is taken, company policies prohibiting harassment and providing steps to take to eradicate that harassment may be used as an affirmative defense to a claim of hostile work 1133 environment.[15]See Id. at *1133 765, 118 S.Ct. 2257. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and [to] correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id.

Here, there are genuine issues of material fact concerning whether all or some of the employees took advantage of any preventative or corrective opportunities and whether Scolari exercised reasonable care to prevent and to correct promptly any sexually harassing behavior. First, this Court notes that almost all of the allegations of sexual harassment involved managers or superiors of some sort, including Director Tom Trebesh, Store Directors Donald Crank and Greg Herring, Managers Dean Osborne, Brandon Hood, Sean Flaherty, Tom Barnes and Martin Hager, and Head Clerk Mike Lyman. There is a dispute, however, as to whether certain employees brought their complaints to the attention of their managers and the effects of those complaints. For instance, although difficult to discern from the deposition testimony provided, the EEOC argues that Ms. Ricci sent a letter to Scolari's owners complaining about harassing behavior and whether she spoke to Tracy Lerud at human resources. (Disputed Facts at 25; Ricci Depo. at 103-04.) Scolari points out that Ms. Ricci, at another point in her deposition, testified that she did not report her manager's harassing conduct to the human resources department. The EEOC argues that that point is "undisputed and irrelevant," as it does in some other instances, stating that Scolari is strictly liable under Burlington Indus., 524 U.S. at 765, 118 S.Ct. 2257. (EEOC SOF at fact 298.) This Court comments, however, that Scolari may be strictly liable only if a "constructive discharge constitutes a tangible employment action, unless the EEOC has enough evidence to prove that Ms. Ricci was fired for informing her managers of the harassing conduct, if she indeed did that. In any case, genuine issues of material fact have been created, that is, did Ms. Ricci, in fact, report the harassing conduct to her managers; if so, to whom; and if so, was she terminated because of that action?
Another example is when Ms. Jacobs testified that the store owners, Joey and Jerry Scolari, "stare[d] at [her] ass" and "looked at [her] breasts all the time." (Jacobs Depo. at 90-91.) She stated that she felt that if she complained, she would have been fired. (Jacobs Depo. at 92.) She subsequently left her employment in March 2004. Defendants point out that the only way that she could recall this harassment was after she looked at the 1134 EEOC attorney's notes, which the EEOC *1134 represented as Jacobs' notes. (Scolari's Motion at 60.) This creates a genuine issue of material fact about why Ms. Jacobs left her employment and what actually occurred during her employment. Although the EEOC did not argue this, or, if it did, it was not obvious from its brief, those facts could amount to a constructive discharge.
Yet another example is when Ms. Gould complained about the situation with Ms. Stockford and Mr. Lyman, and, subsequently, was terminated as "a result of [her] omission of facts, falsification of personnel or other records, or giving false testimony or witness." She appealed, and her termination was upheld. Only afterwards did Scolari admit that "what occurred was actually less than clear," offering Ms. Gould reinstatement, which she turned down.
Finally, although only moderately helpful without reasons for leaving, all but one of the female claimants has left employment with Scolari. The parties do not lay out, individually, why each employee left, and it is not this Court's responsibility to dig through the record (or through the voluminous briefs for that matter) for such information, but, on its face, that fact does not bode well for Scolari.
Furthermore, this Court finds particularly instructive the expert, Michael Robbins's report. (EEOC Ex. at 39.) Notably, Mr. Robbins "has worked as an expert witness on more than 250 occasions," and he "has extensive experience conducting harassment, discrimination and employee misconduct investigations 0907 having conducted over 200 workplace investigations." (Id. at Ex. A.) Many of his other accomplishments, such as his background in employment law, his publications in employment law journals and reports, his teaching and lecturing experience at various employment law centers and law schools, and his membership on the Executive Board of the Los Angeles County Bar Association's Labor & Employment Law Section, as well as others, leads this Court to view Mr. Robbins as a reputable source of expert testimony.
Mr. Robbins's report is based on the testimony of Company witnesses, and it is rife with instances indicating a failure, to exercise reasonable care in dealing with the instances of harassment. For example, Ms. McGuire (a cashier) in a 2003 letter to the Company's CEO and to the COO accused a number of people of harassment, including Paul McEwen (Store Director) and Shawn Flaharty (Head Clerk). Still, no one spoke to Mr. McEwen about this or to Mr. Flaharty until 2005. (Report at 3.) Additionally, although not all allegations were reported to human resources (for a variety of reasons), even when such allegations were reported to human resources, according to the report, they were not investigated fully. (Report at 4.) The best example would be Ms. Gould.

Following the investigation, Mr. Trebesh, in a letter dated August 22, 2003 to Ms. Gould, admitted "[s]ince [Scolari's] original investigation, we have obtained additional information that would lead us to conclude that what occurred was actually less than clear," offering Ms. Gould reinstatement "in the interest of fairness." (Scolari's Ex. 3-LL.) Furthermore, rather than an investigation into Ms. Wagers' complaint, Mr. Smith "simply talked to Wagers. And, nothing more was done." (Report at 10.) Moreover, after Ms. Kennedy's "camel toe" incident, allegations arose two years later against Mr. Hood, the supervisor who said it, for making the same comment. Only then did Mr. Hood admit to making it, and he was "disciplined" for it. (Report at 14.)
1135 Still, this Court notes Scolari's argument that "none of the eligible class members *1135 claim that she made a complaint to Human Resources regarding conduct perceived as sexual harassment" and that "most of the class never reported any inappropriate behavior to Human Resources or to the store director," pointing to 13 class members. (Scolari Motion at 21.) Scolari also takes issue with the reasons why some of the employees left; for instance, it states that Ms. McGuire resigned on October 27, 2003 because she had a poor attendance policy. Notwithstanding, this Court takes heed of Ms. McGuire's letter, written on June 18, 2003, expressing her concern over retaliation and over the "hostile work environment" that was "threat[ening]" her. (EEOC Ex. 47.)
Ms. McGuire also testified during her deposition that she was suspended, but that that suspension was revoked because she had a doctor's note for being sick. (McGuire Depo. at 63, pp. 36-38.) Tracey Lerud somehow was involved in that matter, and she may or may not have treated Ms. McGuire fairly. (Id. at 39.) Additionally, from what this Court gathers from the record, Ms. McGuire reported sexually harassing conduct to her managers, even though she stated on at least a couple of occasions that, she was in fear of losing her job for reporting such conduct. (McGuire Depo. at 97, 110, 123.) When she was given an option to transfer to another store, she declined it because she did not feel that she was doing anything wrong. (Id. at 113.) She further stated, "I felt that if I went to another store if they didn't protect me at my store why were they going to protect me at another store." (Id. at 113.) With this, and without knowing the full story about why Ms. McGuire (and others) were terminated, this Court cannot dismiss this case (or Ms. McGuire's and others' individual claims, as will be discussed) at this stage when there are genuine issues of material fact in dispute. As the EEOC points out, Scolari's reasons could be pretextual, but, right now, that answer is unclear. See, e.g., Dominguez-Curry, 424 F.3d at 1037.
This Court finds particularly disturbing the number of instances of harassing conduct, the nature of the conduct, and the testimonials of fear of consequences that, when viewed in the light most favorable to the EEOC, could prove a pattern-or-practice of discrimination. That said, it is too early for that to be determined because there are a number of material facts in dispute. It could be that, rather than a pattern-or-practice or hostile work environment, there truly was only one or a handful of parties at fault, namely, Mr. Lyman, and some other managers/store directors. At this point, this Court cannot determine whether the acts noted above, and others that the EEOC believes might come forward throughout the course of this litigation, rise to the level of a patternor-practice claim, nor is it asked to at this stage as the EEOC did not file a summary judgment motion. It merely finds that Scolari has failed in its burden to prove that there are no genuine issues of material fact in dispute; thus, its motion for summary judgment concerning the pattern-or-practice claim is DENIED.
C. Individual Claimants
Scolari next moves for summary judgment on the individual claimants, arguing that Ms. Gould's claim fails as a matter of law and addressing the other individual claimants' claims in regard to the strength of each as a composition of the group of claimants contributing to the pattern-or-practice claim.
1. Motion for Leave to Amend Complaint
Scolari argues that seven of the twenty (20) claimants were not employed at Scolari at any time "since on or 1136 about October 2002"; thus, they are not eligible *1136 "class members."[16] (Scolari's Motion at 20.) The EEOC
responded in its Opposition, arguing that they are eligible. As for the seven members, Ms. Setzer, Ms. French, Ms. Cox, Ms. Thomas, Ms. Schultz, and Ms. Gendreau, that were not employed in 2002, this Court sees no reason to dismiss their claims based on that fact alone.

The EEOC stated in interrogatory response No. 91 that it was going to amend its Complaint, changing the time period from when the harassing conduct began to occur from October 2002 to January 1999. The reasoning provided was that, on July 6, 2006, the EEOC informed Scolari in writing that, after conducting discovery, it identified a broader group of individual claimants. (Scolari Ex. 40.) In that letter, the EEOC sought a stipulation to amend the Complaint to make the relevant time period starting in January 1999.(Id.) A party may amend a pleading, with leave of the court "upon motion of any party at any time, even after judgment." Fed. R.Civ.P. 15(b). Although it is not entirely clear whether the EEOC is requesting this of the Court; this Court will take the opportunity to allow the EEOC to amend its Complaint, in the interest of justice. To the best of this Court's knowledge, Scolari has not objected to that amendment, under Rule 15(b), arguing prejudice. Even if it had, however, this Court still would allow the amendment, in the interest of justice, because the EEOC has provided adequate reason to enlarge the group of claimants, without presenting any new prejudice to Scolari.
2. Statute of Limitations
This Court now turns to the potential statute of limitations problems. The EEOC is the only federal law enforcement agency that may pursue pattern-or-practice claims against private entities. See 42 U.S.C. § 2000e-6 (pattern-or-practice claims commonly are referred to as "707 cases" because authority is derived from § 707 of Title VII). Unlike private litigants, a statute of limitations does not apply when the EEOC brings a pattern-orpractice suit.[17]See 42 U.S.C. § 2000e-6; see also Mitsubishi, 990 F.Supp. at 1083-84 (commenting that 707 claims do not contain a statute of limitations for pattern-or-practice cases initiated by a Commissioner's charge); U.S. v. Fresno Unified School Dist., 592 F.2d 1088, 1096 n. 5 (9th Cir.1979) (noting, indirectly, that statute of limitations for 707 claims may be illogical because there is no certain date from which the limitations period could run). See generally Federal Procedure, Lawyer's Edition § 50-633 (1997) ("There is [] no statute of limitations under Title VII for pattern-or-practice suits brought by the EEOC.")
Notwithstanding, Scolari does not appear to argue that the EEOC's pattern-or-practice claim is susceptible to a statute of limitations problem, but rather it argues that individuals not employed with Scolari during the 180/3001137 day period or during *1137 the alleged pattern-or-practice, beginning on or about October 2002, are not covered. As addressed above, this Court is permitting the Motion for Leave to Amend Complaint to allow the allegations to date back to January 1999. Thus, the individuals with allegations dating back to that date are not dismissed as being outside of the statute of limitations period because they are rightful members of the pattern-or-practice claim brought by the EEOC. Additionally, Scolari argues that individuals not employed with it during the 180/300day period of limitations cannot recover. The EEOC notes, in footnote 8, that "[a]lthough no administrative time-limit applies to either of the EEOC's claims, the Supreme Court has held that the 300-day limitation (rather than the 180-day limitation) applies in Nevada for individual administrative charges." (Emphasis added.) Because there are no individual charges in this case, outside of Ms. Gould's triggering charge, this Court need not concern itself with potential timeliness
3. Ms. Gould, Ms. Stockford, Ms. Jacobs, Ms. McGuire, Ms. Wagers, Ms. Cox, Ms. Kennedy, Ms. Ricci, and Ms. Gendreau
This Court disagrees that Ms. Gould's individual claim of sexual harassment and retaliation fail as a matter of law, for all of the factual disputes listed above. It sees no reason to reiterate the facts and the arguments again. As for Ms. Stockford, Ms. McGuire, Ms. Jacobs, Ms. Cox, Ms. Wagers, Ms. Ricci, Ms. Kennedy, and Ms. Gendreau, for the same reason, this Court disagrees that their claims fail as a matter of law. There are facts in dispute concerning whether some of the claimants reported sexually harassing conduct and, if not, why they failed to report it, and, finally, why they left their employment with Scolari.
Ms. Orsie
Scolari faults Ms. Orsie for signing the Associate Handbook, going through the training course, not making complaints about sexual harassment, namely, that Mr. Crank, her manager, stared at her chest and touched her shoulder "a lot," and then abandoning her job without notice. (Orsie Depo. at 37-38.) The EEOC objects, arguing

that Ms. Orsie "felt extremely uncomfortable" working at Scolari, which is why she quit, though she did not mention this to anyone. (Orsie Depo. at 36.) The EEOC, moreover, makes the point that Mr. Crank's activities made her "feel really uncomfortable." (Orsie at 40.) Alone those acts do not rise to the level of "severe or pervasive conduct"; thus, as a matter of law, Ms. Orsie would not be able to maintain an individual sexual harassment complaint. That is not, however, what this Court is dealing with here. Rather, this case involves a pattern-or-practice of harassment that rises to the level of a hostile work environment claim, which claims are "comprised of a series of separate acts that collectively constitute `one unlawful employment practice.'" Morgan, 536 U.S. at 117, 122 S.Ct. 2061. Thus, Ms. Orsie's complained-of acts, when combined with all of the other claims of harassing behavior and when viewed in total with the other claims, may be used to support the EEOC's hostile work environment claim.
5. Remaining claimants: Kathleen French, GeGe Renfroe, Julia Setzer, Jennifer Dimes, Barbara LaForge, Donna Park, Sandra Serrano, Annalisa Schultz, and Christina Thomas
First, the EEOC is not seeking relief on behalf of Ms. French or Ms. Renfroe. (EEOC SOF at 255-56.) Thus, they are dismissed.
1138 Second, Scolari combats the EEOC's inclusion of Ms. Setzer by arguing *1138 that she was terminated or that she left her employment, due to "issues with co-employees" and for taking time off of work for a non-work related foot injury during the last two months of her employment, rather than for the sexually harassing behavior of which she complains. Ms. Setzer testified during her deposition that co-workers would come by her work station and stare at her breasts; when she complained to her female manager, she was told that "you have big breasts, and that's what they're [i.e., the co-workers] are here for." (Setzer's Depo. at 15.) She further testified that there used to be Maxim magazines with half dressed women spread all over the tables in the store break room, which made her feel uncomfortable. (Id. at 16.) Notably, Ms. Setzer is a licensed ordained minister. (Id. at 6.) Based on those facts, there is a genuine dispute about whether Ms. Setzer was terminated due to legitimate employment reasons, whether she left out of constructive discharge, or whether those employment concerns are mere pretext for unlawful employment practices.
Third, Scolari wants to dismiss Ms. Dicus, arguing that her only claims are that her manager was very controlling and hard to work with, which would not contribute to a claim of hostile work environment. The EEOC responds that Ms. Dicus's supervisors, Mr. Hagar and Tom Burrows, would look at pictures of hookers from Thailand on the work computer and discuss them (Dicus Depo. at 49); that Mr. Burrows would make comments about. Ms. Dicus's body (Dicus at 57); and that Hagar would call a woman named "Bonny" a "big pussy," i.e., that she either was one or that she had one. (Dicus at 89-90.) Those disagreements create genuine issues of material fact concerning the acts that occurred and whether those acts, depending on what they actually are, rise to the level of severe or pervasive conduct (or add to that conduct) to create a hostile work environment.
Fourth, Scolari claims that Ms. LaForge complained of problems concerning employee gossip, rules broken, insubordinate behavior and other such behavior that is not based on sex. The EEOC points to evidence in Ms. LaForge's deposition that a co-worker named "Jerry" sexually harassed her; that he placed his hip next to hers; and that she complained to her store manager about a "pushing incident" that was sexual in nature. (LaForge Depo. Ex. 60, 32, 38, 39.) A genuine issue of material fact is created as to whether or not the harassing behavior was, in fact, based on sex.
Fifth, Scolari contends that Ms. Park was terminated for falsifying her employment by omitting her previous employment with Scolari. The EEOC argues that Park claimed that her manager, Mike Hutton, would make comments about her "behind, saying that [she] had a booty like a black girl" (Park Depo. at 37), that she was offended by those comments (Id.), and that he would make sexually explicit comments about women shoppers ( Id. at 39, 64). Those comments made her "feel bad" and "sad." (Id. at 64.) A genuine issue of material fact is created as to whether Ms. Park was terminated for legitimate reasons or whether those reasons were pretextual.
Sixth, Scolari contends that Ms. Serrano was terminated for cashing personal checks. The Appeal Board unanimously upheld this. The EEOC provides deposition testimony from Ms. Serrano, in which she states that male employees in the produce department made comments that offended her such as "what type of underwear 1139 are you wearing" and "how far would you go on the first date, what is your cup size," and other similar remarks,

*1139 and that she complained to her manager, "Mark." (Serrano Depo. at 30-32.) She also alleges that "Mark" made offensive jokes to her, though her recollection of those jokes was not great. (Id. at 39.) This creates a genuine issue of material fact concerning whether Ms. Serrano was terminated for pretextual reasons.
Seventh, Scolari seeks to dismiss Ms. Schultz, arguing that she was dismissed for "excessive tardiness." Schultz testified during her deposition, however, that some employees, including managers "Rich" and "Gordy," told "offcolor jokes" that "were mostly sexual in nature." (Schultz Depo. at 21-22.) She also recalled a comment about a customer looking like a "whore," though she did not recall who said that. (Id. at 26.) She did state, however, that she did not complain about it because "it was managers that were doing it." (Id. at 29.) There are other allegations, but these alone raise a genuine issue of material fact concerning whether Ms. Schultz was dismissed for "excessive tardiness" or for other pretextual reasons, such as being a trouble-maker or something akin.
Eighth, Scolari argues that Ms. Thomas voluntarily resigned to go back to school. Scolari makes an issue out of the fact that her co-worker, Sal Scavo, and a manager, Dean Osborne, sexually harassed her, but yet Ms. Thomas did not complain about this to management. (Thomas Depo. at 36.) The EEOC objects to Ms. Thomas's reasons for leaving as irrelevant. This Court finds Ms. Thomas's reasons for leaving employment relevant, but, it does not, at this point, draw any conclusions from those reasons. Additionally, this Court finds Ms. Thomas's reasons for not reporting the conduct to management highly relevant. Ms. Thomas stated, "[i]t was kind of a wellknown fact at the store that that kind of stuff was going on with Dean to other female employees, and they had supposedly complained and nothing was done about it. That's why everybody would just try to avoid him." ( Thomas Depo. at 36.) That creates a genuine issue of material fact about whether harassment existed, about the reasons why Ms. Thomas failed to report that behavior to management, i.e., for fear of consequences, and whether that harassment, if it in fact is true, constituted a constructive discharge, thus prompting Ms. Thomas to go back to school as a safeguard from the company.
D. Punitive Damages
Punitive damages may be awarded if the EEOC can demonstrate that Defendant engaged in a discriminatory practice with malice or reckless indifference to its employees' rights. See 42 U.S.C. § 1981a(b)(1); see also Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535-36, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Those terms "ultimately focus on the actor's state of mind." Kolstad, 527 U.S. at 526, 119 S.Ct. 2118. There is a "good faith" exception where an employer may avoid vicarious liability for discriminatory employment decisions of its agents, i.e., its managers, if those decisions are contrary to the employer's "good faith efforts to comply with Title VII." Kolstad, 527 U.S. at 545, 119 S.Ct. 2118.
To start, the employer, Scolari, put anti-harassment policies in place to combat discriminatory policies. The fact that there were policies in place, however, does not automatically lead to the conclusion that Scolari made "goodfaith efforts to comply with Title VII." One can have good faith efforts to start, but then fall short in practice.
Besides all of the allegations of harassment against the managers, Scolari's owners are accused of harassment, 1140 possibly imputing their conduct to Scolari, the entity. The owners' clear disregard for the *1140 policies that they
put in place is, if proven, remarkable. But, remarkable does not necessarily equate to malicious or reckless indifference, which requires "an additional [higher] demonstration" that may be reviewed only by looking to the owners' subjective intent. Kolstad, 527 U.S. at 526, 534, 119 S.Ct. 2118. "The terms `malice' or `reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Id. at 535, 119 S.Ct. 2118. A showing of "egregiousness" is not required to demonstrate malice or reckless indifference, "although evidence of egregious misconduct may be used to meet the plaintiffs burden of proof." Id. at 546, 119 S.Ct. 2118. A mere "disregard," without a showing of intent, would not prove a knowing violation of federal law to rise to the level of malice or reckless indifference. Thus, the question becomes, is there enough evidence for a jury reasonably to find intent on the part of Scolari's owners and managers to discriminate, namely, to harass the claimants sexually with knowledge that they may have been acting in violation of federal law?
In the Memorandum on "Company Policy 0907 Unlawful Discrimination," it states that "Congress has also made such practices [of discrimination] illegal by virtue of Title VII of the Civil Rights Act of 1964, the age discrimination in Employment Act Section 504 of the Rehabilitation Act of 1973, and other applicable legislation." The

Memorandum goes on to describe its policy prohibiting sexual harassment. At the bottom of that memorandum is a note, "Please Post Permanently," indicating that that memorandum was posted permanently in Scolari's stores. (Scolari's Ex. at 1-B.) The Associates Handbook does not appear to state the actual federal law at issue, though it does state its commitment to preventing "illegal harassment" and discrimination. (Scolari's Ex. at 1-A, at p. 10.) The written material used in Scolari's training seminar similarly indicates the company's intention not to permit harassing behavior, without specifically noting the federal law at issue. (Scolari's Ex. at 1-C.)
This Court acknowledges that "[t]he very structure of § 1981 a suggests a congressional intent to authorize punitive awards in only a subset of cases involving intentional discrimination." Kolstad, 527 U.S. at 534-35, 119 S.Ct. 2118. It, furthermore, takes heed of the circumstances under which claims of intentional discrimination will not give rise to punitive damages, such as where the employer is "unaware of the relevant federal prohibition" and where an "employer discriminates with the distinct belief that its discrimination is lawful." Id. at 537, 119 S.Ct. 2118; see also Id. at 551, 119 S.Ct. 2118 (Stevens, J., with whom Souter, J., Ginsburg, J., and Breyer, J. join) (indicating, in passing, ways for an employer to prove willful violation of the law, such as through hostility toward employment discrimination laws). In the instant case, Scolari's owners, as well as the managers, are being accused of harassing behavior in violation of their own policies, one of which explicitly states that discriminatory behavior constitutes a violation of Title VII. Those facts, if proven, could indicate an awareness of (and possibly a hostility toward) the relevant federal prohibition against sexual harassment and discriminatory conduct and a reckless indifference toward it.
The inquiry does not end there, however. The EEOC still must impute liability of the owners and the managers to Scolari, the entity. See 527 U.S. at 539, 119 S.Ct. 2118. As mentioned, where good faith efforts to comply with Title VII are made, punitive damages may be avoided. See id. at 545, 119 S.Ct. 2118. From what is before this 1141 Court, particularly the instances *1141 of alleged harassment by the owners, there is enough evidence that, if true, could support an inference that the requisite mental state of Scolari's owners and managers may be imputed to Scolari, the entity. See id. at 546, 119 S.Ct. 2118. The fact that policies are in existence, without implementation or enforcement of the policies, means nothing.
Accordingly, based on the facts of this case, a genuine issue of material fact has been established concerning whether Scolari's owners and managers acted with the requisite mental state, i.e., malice or reckless indifference, to classify as one of those "subsets" of intentional discrimination cases that would permit an award of punitive damages. If at a later stage of these proceedings it appears that the record does not suggest going forward with a punitive damages claim, then the claim can be dismissed at that time.
CONCLUSION
For the reasons stated above, this Court DENIES Scolari's. Motion for Summary Judgment For the Pattern-orPractice Claim and For All But Two of the Individual Claimants, Namely, Ms. French and Ms. Renfroe; DENIES Scolari's Motion on the Punitive Damages Claim; GRANTS Summary Judgment To Dismiss Ms. French and Ms. Renfroe; GRANTS the EEOC's Motion for Leave to Amend Complaint; and DENIES Plaintiff's Motion to Strike Evidence Insofar As It Pertains to Evidence in This Motion.
IT IS SO ORDERED.
ORDER DENYING SCOLARI' S MOTION FOR RECONSIDERATION
Pursuant to Local Rule 78-2, the Court finds this matter suitable for disposition without a hearing. After reviewing Defendant Scolari Warehouse Markets, Inc.'s, d/b/a Scolari's Food and Drug ("Scolari") Motion for Reconsideration ("Reconsideration Motion") and the supporting and opposing memoranda, the Court DENIES Scolari's Reconsideration Motion.

BACKGROUND
The background has been detailed extensively in the Order granting in part and denying in part Scolari's Motion for Summary Judgment ("Order").[1] Suffice it to say, on May 6, 2004, the EEOC filed a Complaint against Scolari on behalf of a class of "similarly situated" individuals on the basis of sexual harassment and retaliation under Title VII, § 706 of the Civil Rights Act of 1964. (Complaint ¶ 10.) The EEOC amended that Complaint on July 1, 2004 to allege a pattern and practice of discrimination pursuant to Title VII, §§ 706 and 707 of the Civil Rights Act of 1964. (Amended Complaint ¶ 10.) According to the Court's Order, the EEOC filed a Second Amended Complaint on March 29, 2007, alleging a pattern and practice of sexual harassment since on or about January 1999, replacing the previous date of October 2002. (Second Amended Complaint § 10.)
Since on or about January 1999, the Charging Party, Jennifer Gould ("Ms. Gould"), and the other individuals claim that they were subjected to a hostile work environment involving numerous instances of sexual harassment at Scolari's stores, which Scolari's supervisors perpetuated, and that they were retaliated against for complaining of the harassment. There are roughly seventeen (17) named claimants involved in this case and an unnamed 1142 group of similarly situated females for *1142 whom the Commission is seeking relief. (Amended Decl. of Gregory McClinton at 1.) Besides Ms. Gould, the other named claimants are Natasha McGuire, Melissa Orsie, Jennifer Dicus, Annalisa Schultz, Brandi Stockford, Rachael Kennedy, Donna Park, Melody Warren (Wagers), Elaine Cox, Dana Gendreau, Lisa Ricci, Barbara LaForge, Sandra Serrano, Julia Setzer, Katie Jacobs, and Christina Thomas.
On January 29, 2007, the Court filed its Order. Due to an internal error, that Order was not entered on the docket until March 14, 2007. (See Docket No. 130.) On March 23, 2007, Scolari filed its Reconsideration Motion to reconsider the Court's denial of summary judgment concerning punitive damages, compensatory damages, and Ms. Orsie. On March 30, 2007, the EEOC opposed the Reconsideration Motion, and, on April 11, 2007, Scolari filed its reply.
STANDARD OF REVIEW
The disposition of a motion for reconsideration is within the district court's discretion. See Bliesner v. Commc'n Workers of Am., 464 F.3d 910, 915 (9th Cir.2006). Three major grounds justify reconsideration: (1) an intervening change in controlling law; (2) newly discovered evidence; or (3) the need to correct clear error or manifest injustice. See Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir.2004); see also Federal Rules of Civil Procedure ("Fed. R. Civ.P.") 60(b).
DISCUSSION
Scolari argues that partial summary judgment should be granted in its favor as to punitive damages because the Order is clearly erroneous on this point of law and such an award would result in manifest injustice. Furthermore, Scolari seeks clarification on the issue of whether any claimant other than Ms. Gould may seek compensatory damages under 42 U.S.C. § 1981a, and it argues that allowing such a result would result in clear error and manifest injustice. Finally, Scolari disputes the denial of summary judgment as it applies to Ms. Orsie, arguing that allowing her to proceed as a claimant would result in clear error and manifest injustice. Even if Ms. Orsie is excluded from the group of claimants for which the EEOC seeks relief, Scolari concedes that Ms. Orsie still may testify on the EEOC's behalf in support of its pattern-or-practice claim. (Reconsideration Motion at 15 n. 10.)
The EEOC argues, first, that the Court should not consider Scolari's Motion because Scolari offers no new evidence, law, or instances of clear error. Specifically, the EEOC claims that Scolari merely reiterates arguments from its Motion for Summary Judgment, that it improperly presents new (and incorrect) legal arguments that it did not raise in its 90 pages of briefing, and that it offers no new facts concerning Ms. Orsie. Still, the EEOC contends that, if the Court is inclined to entertain Scolari's Reconsideration Motion, Scolari's arguments would fail on the merits.

The Court agrees that much of Scolari's arguments simply constitute a reiteration of previous arguments, and that Scolari raises new legal arguments concerning the propriety of punitive damages awards in pattern-orpractice claims that it did not raise in its voluminous Motion for Summary Judgment and Reply, comprising 90 pages of fact-intensive briefing. For purposes of clarification, however, the Court shall entertain Scolari's Reconsideration Motion to address its complaints of clear error and manifest injustice. Additionally, because, as Scolari maintains, the Motion for Summary Judgment involved many complex issues of fact and law, the Court finds it appropriate to clarify the issues for trial.
1143 *1143 A. Punitive and Compensatory Damages pursuant to Title VII, §§ 706 and 707
For the first time, Scolari argues that punitive and compensatory damages are available only in cases involving individual claims of discrimination under § 706 of the Civil Rights Act of 1964, and not under § 707.[2]See 42 U.S.C. § 2000e-5. By extension, Scolari disputes the propriety of bringing pattern-or-practice claims pursuant to both §§ 706 and 707, rather than § 707 alone. Scolari contends that, because the instant case involves a patternor-practice of discrimination pursuant to § 707, punitive damages are not available here. See 42 U.S.C. § 2000e-6. The EEOC points out that it brought the pattern-or-practice claim pursuant to both §§ 706 and 707; thus, it argues that Scolari's claims are irrelevant, as § 706 plainly provides for punitive and compensatory damages. (Amended Complaint at ¶ 1, 10.)
There is a significant distinction between §§ 706 and 707 claims. A § 706 claim involves the rights of aggrieved individuals challenging an unlawful employment practice on an individual or class-wide basis, whereas a § 707 claim involves a pattern-or-practice of systemic discrimination challenging widespread discrimination throughout a company on a group basis. See E.E.O.C. v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1084 (C.D.Ill.1998) (distinguishing § 707 pattern-or-practice cases from § 706 individual or class-wide cases); see also Gen. Tel. Co. of the Northwest, Inc. v. E.E.O.C., 446 U.S. 318, 324, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) (holding that the EEOC may seek class-wide relief under § 706). That distinction is important for statute of limitations purposes. For instance, a § 706 claim is subject to timeliness requirements because the individual nature of the claims may be isolated even when brought on a class-wide basis; no such limitation exists for § 707 claims because isolating instances of systemic discrimination would be virtually impossible. See Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. at 1084-87.
Notwithstanding those differences, courts have blurred the line between class-wide claims brought pursuant to § 706 and pattern-or-practice claims brought pursuant to § 707. See Gen. Tel. Co. of the Northwest, Inc., 446 U.S. at 328 n. 12, 100 S.Ct. 1698 (citing testimony by Senators Williams and Javits comparing pattern-or-practice claims under § 707 to class actions, presumably brought pursuant to § 706, though that is not altogether clear); E.E.O.C. v. Gen. Tel. Co. of the Northwest, Inc., 885 F.2d 575, 577 (9th Cir.1989) (permitting the EEOC to litigate the case on remand pursuant to § 706 under a pattern-or-practice framework); United States Equal Employment Comm'n v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *1 (N.D.Ill.1999) (indicating that Gen. Tel. Co. of the Northwest, 446 U.S. at 324, 100 S.Ct. 1698, contemplated class certification in relation to the EEOC's "pattern and practice" case brought pursuant to § 706). That blurring has led at least one court expressly to permit the EEOC to bring pattern-or-practice claims pursuant to both §§ 706 and 707. See E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926, 969 (N.D.Ill.2001) (concluding that "a pattern-or-practice action can be brought, both as a general matter and in this case, for sexual harassment claims under §§ 706 and 707 of Title VII").
1144 *1144 Whether a court permits such a claim under both §§ 706 and 707 or § 707 alone may determine the type of damages that may be sought. Although Title VII plainly permits the EEOC to recover compensatory and punitive damages in cases of intentional discrimination under § 706, the same cannot be said with such certainty for cases brought pursuant to § 707. See 42 U.S.C. § 1981a(a)(1); see also E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 287022 S.Ct. 754, 151 L.Ed.2d 755 (2002). Here, the EEOC brought its claims pursuant to both §§ 706 and 707, apparently assuming that a pattern-or-practice claim may be brought under either section.[3] ( Opposition at 9; Amended Complaint at 10.) Consequently, the Court must consider two questions: (1) whether a pattern-or-practice claim may be brought pursuant to § 706 for the purpose of seeking punitive and compensatory damages, and, if not, (2) whether the EEOC is foreclosed from seeking those damages under § 707. If the Court answers "yes" in the first instance, the analysis ends there.

1. Pattern-or-practice claim pursuant to § 706
The Court is not aware of any circuits that have decided the narrow issue of whether pattern-or-practice claims may be brought pursuant to § 706 for the purpose of seeking punitive or compensatory damages (or otherwise). Although the Ninth Circuit allowed the EEOC's case in Gen. Tel. Co. of the Northwest, Inc. to proceed on a pattern-or-practice model pursuant to § 706, it neither analyzed nor conclusively determined whether such a claim may be brought according to § 706. See 885 F.2d at 577. Additionally, the Northern District of Illinois's decisions supporting a "pattern and practice" claim brought pursuant to § 706, while helpful, are not controlling on this issue. See Foster Wheeler Constructors, Inc., 1999 WL 528200, at * 1; Dial Corp., 156 F.Supp.2d at 969. The Court, therefore, must conduct an independent review to determine whether a pattern-or-practice claim may proceed under § 706 as well as § 707.
Allowing pattern-or-practice claims to proceed according to § 706 when Congress specifically created another avenue to bring such claims creates an apparent redundancy in the law that troubles the Court. Still, there are intersections between the sections of the Civil Rights Act that lend to the Court's view that § 706 and § 707, though not interchangeable, are not mutually exclusive. Under the 1972 amendments to Title VII, Congress added § 707(e), which incorporates the procedural requirements of § 706. See 42 U.S.C. § 2000e-6(e). That section provides that a charge of a pattern-or-practice of discrimination may be brought upon compliance with § 706's prerequisites to suit. There is no indication in the statutory language or case law, however, that § 707 also incorporates or provides for the damages permitted under § 706. See 42 U.S.C. § 2000e-6(e); 42 U.S.C. § 1981a.
1145 Title VII, as remedial legislation, has long been construed liberally, Moyo v. Gomez *1145 40 F.3d 982 (9th Cir.1994), and any ambiguities in the states generally have been resolved in favor of the complainants, see Saulsbury v. Wismer and Becker, Inc., 644 F.2d 1251, 1256 (9th Cir 1980). As a "prophylactic" piece of legislation, Kolstad v. Am. Dental Ass'n 527 U.S. 526, 545, 119 S.Ct.2118, 144 L.Ed.2d 494 (1999) (citation and internal quotation marks omitted), the Court is hesitant to limit remedies that would serve Title VII's purpose. Indeed, allowing punitive and compensatory damages for class-wide claims and not for pattern-or-practice claims, when both are equally severe in magnitude, would disrupt Title VII's purpose to eradicate widespread discrimination and to make persons whole again. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Precluding district courts from awarding punitive and compensatory damages in pattern-or-practice cases also would interfere with a court's broad discretion to determine appropriate remedies. See Local 28 of Sheet Metal Workers Int'l Ass'n v. E.E.O.C., 478 U.S. 421, 422, 444-46, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (involving a pattern and practice of discrimination and citing § 706(g), 42 U.S.C. § 2000e-5(g), for the remedies).
Though efficiency may underlie the purpose of seeking class-wide relief, the interest in bringing a class action and/or a pattern-or-practice claim is the same: to prevent against unlawful employment practices affecting a group of individuals with related claims. See Harriss v. Pan Am. World Airways, Inc., 74 F.R.D. 24, 41-42 (N.D.Cal.1977) (setting forth the requirements of commonality and typicality to maintain a class action claim involving unlawful employment practices); Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir.2003) (noting that pattern-or-practice claims are "based on discriminatory conduct that is widespread throughout a company or that is a routine and regular part of the workplace"). That is why the two claims commonly are brought together. See, e.g., Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1238, 1241 (9th Cir.2007) (alloing a class action challenge to a "pattern or practice" of discrimination, and finding that the civil rights act did not preclude use of the class action format and that use of the class action format did not preclude punitive damages under 42 U.S.C. § 1981a); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 417 (5th Cir.1998) (involving a class action, and finding that "[p]unitive damages cannot be assessed merely upon a finding that the defendant engaged in a pattern or practice of discrimination"; rather, they must be established after proof of liability). In fact, the major distinction between a pattern-or-practice claim under § 707 and a class-wide claim brought pursuant to § 706 is in the nature of the claims, i.e., systemic versus individual (even if designated as a class), which would more clearly affect the issue of time limitations than damages. See Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. at 1085 (finding that "neither the statutes nor the regulations adequately address the differences between an individual

(albeit a "class" action) and a pattern or practice action," but distinguishing them for "limitations purposes just the same").
Given the similar nature of such claims and the remedial purpose of Title VII, the Court sees little legal or prudential reason to foreclose the EEOC from bringing a pattern-or-practice claim pursuant to §§ 706 and 707 for the purpose of seeking punitive and compensatory damages. The purpose of punitive damages further buttresses that view. See 42 U.S.C. § 1981a(b)(1) (providing that a complaining party may recover punitive 1146 damages upon a showing that an employer "engaged in discriminatory practices with *1146 malice or with reckless indifference to the federally protected rights of an aggrieved individual"). An employer could act with malice and reckless indifference with equal force in either case. Cf. Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1196-98 (9th Cir.2002) (involving a sex discrimination suit by female employees under disparate impact and treatment theories, and applying 42 U.S.C. § 1981a(b)(1) to find that the jury may award punitive damages if the moving party demonstrates malice or reckless indifference); see also Kolstad v. Am.. Dental Ass'n, 527 U.S. 526, 535-39, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Because the Court sees no basis for distinguishing such claims for the purpose of seeking damages, the Court concludes, in line with Gen. Tel. Co. of the Northwest, Inc., 885 F.2d at 577 and Dial Corp., 156 F.Supp.2d at 969, that a pattern-or-practice action may be brought for sexual harassment claims under both §§ 706 and 707 of Title VII for the purpose of seeking compensatory and punitive damages.[4]
2. Compensatory and Punitive Damages under § 707
As the Court determines that the EEOC's pattern-or-practice claim may proceed under §§ 706 and 707 to permit the EEOC to seek compensatory and punitive damages under § 706, the Court need not determine whether § 707 also permits an award of such damages.
B. Sufficient Evidence for the Punitive Damages Claim to Proceed
Scolari next argues that punitive damages are inappropriate in this case, making essentially the same arguments that it made in its Motion for Summary Judgment. Namely, Scolari claims that "it is undisputed [that] the claimants who have accused the[ ] managers [of sexual harassment] did not report the alleged behavior to the company" and that there is no evidence that any officer, director, or principal engaged in unlawful sexual harassment. The EEOC disagrees, as does the Court.
The EEOC produced sufficient evidence that at least some of the complainants complained of sexual harassment to their supervisors or department managers. See, e.g., Gendreau Dep. at 73 (complained to supervisor, Greg Herring, about sexually harassing incidents); Setzer Dep. at 15 (complained about sexually harassing incidents to her supervisor, Leslie); Thomas Dep. at 42 (complained to someone named "Doyle" about sexually harassing conduct, though Doyle's position is unclear); McGuire Dep. at 56, 64-65 (complained to store managers about sexual harassment); Jacobs Dep. at 30-31, 47 (discussed sexually-oriented rumors with her bosses).
Additionally, contrary to Scolari's contention, the Court correctly concluded that Scolari's owners are accused of sexual harassment. (Motion at 10; Order at 43.) The EEOC provided evidence that the owners may have, at times, taken part in the sexual harassment. Ms. Jacobs testified that the store owners, Joey and Jerry Scolari, "stare[d] at [her] ass" and "looked at [her] breasts all the time," and that she reported that harassing behavior to a woman named Gayle. Jacobs Depo. at 90-91, 94 Although Scolari downgrades that evidence by pointing out that 1147 Ms. Jacobs also testified that other guys stare at her chest because "[t]hat is what they do" and *1147 that Joey Scolari was "an all around nice guy," that does not change the nature of Ms. Jacobs' claims or diminish her testimony that the harassment "bother[ed] her." Id. at 92-97. In fact, she testified that she did not complain about Joey Scolari's actions "because he was the owner. I felt if I was to complain about him that he would fire me. I didn't want to get fired." Id. at 92. The Court recognizes that that is but one incident, but it is a significant one nonetheless. It demonstrates a failure to act on the part of the owners and, as the Court previously found, a disregard, if proven, for the policies that they put in place. (Order at 43.) The Court finds particularly striking Ms. Jacobs' reasons for not complaining about Joey Scolari's conduct, which may indicate a larger systemic problem within Scolari's stores.

That evidence when combined with that set forth in the Court's Order, including Michael A. Robbins' expert report which is rife with instances of Scolari's inaction and failure to enforce its policies, creates sufficient evidence to allow a punitive damages claim to proceed.[5] (Report at 2-5.) For the reasons stated in the Court's Order and herein, the Court finds no error or instances of manifest injustice. (Order at 42-46.)
C. Summary Judgment Was Properly Denied for Ms. Orsie
Scolari argues, in reference to Ms. Orsie, that it is not a "great leap to conclude . . . that individuals who were not subjected to actionable sexual harassment [individually] cannot recover as a matter of law despite the fact [that] the EEOC may have a viable pattern-or-practice claim." (Motion at 14.) Scolari cites to the Court's Order, which found that "[a]lone th[e] acts [alleged] do not rise to the level of `severe or pervasive conduct'; thus, as a matter of law, Ms. Orsie would not be able to maintain an individual sexual harassment complaint." Order at 37. Ms. Orsie claimed that Mr. Crank, her manager, stared at her chest and touched her shoulder "a lot," which made her feel uncomfortable. Orsie Depo. at 36-38.
Again, the Court acknowledges that Ms. Orsie would not be able to maintain an individual claim of sexual harassment. That does not, however, lead to the conclusion that Ms. Orsie may not take part as a claimant in the EEOC's pattern-or-practice case. Contrary to Scolari's argument, the Court finds that a "great leap" would be necessary to conclude that individuals that may not maintain individual claims also may not recover as part of a pattern-or-practice of sexual harassment. (Motion at 14.) The purpose of a pattern-or-practice claim is not to identify isolated incidents of discrimination, but to identify a pattern of discrimination that, over time, permeates the workplace, resulting in widespread discrimination. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Here, Ms. Orsie's claims contribute to the EEOC's argument that Scolari condoned or tolerated sexually harassing behavior as part of a pattern-or-practice of sex-based discrimination, in contravention of its policies. The Court, therefore, finds no error or manifest injustice in its Order.
1148 *1148 CONCLUSION
For the reasons stated above, the Court DENIES Scolari's Motion for Reconsideration.
IT IS SO ORDERED.
[1] 1. Because this Court is granting the EEOC's Motion for Leave to Amend Complaint to change the date of the alleged acts from October 2002 to January 1999, this Court will refer to that date in this Order. See discussion infra Section C.1. The EEOC stated in its interrogatory response No. 91 that it was going to amend its First Amended Complaint to allege a pattern-or-practice of discrimination as early as January 1999. (Scolari Ex..7-A.) To this date, it has not amended the Complaint, though the EEOC's attorney stated during the hearing that it still seeks to amend the Complaint. For the reasons set forth in Section C.1 of the Discussion, this Court permits the amendment. Additionally, as noted in Section C.3 and C.5, the claimants alleging a hostile work environment before October 2002 are Annalisa Schultz, Elaine Cox, Dana Gendreau, Julia Setzer, and Christina Thomas, and there is sufficient evidence from their deposition testimonies to allow their cases to go forward.
[2] Scolari points out that Title VII pattern-or-practice actions are not subject to class certification requirements under Federal Rules of Civil Procedure ("Rule") 23. Still, it cited one case where the court referred to individual claimants as "class members" for the sake of convenience and for ease of reference. See EEOC v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *1 n. 3 (N.D.Ill. July 13, 1999). To avoid confusion, this Court will not refer to the named individuals as "class members," but rather it will refer to them in their individual capacity or, collectively, as "claimants."
[3] That number has changed throughout the course of the proceedings, ranging from twelve (12) to twenty-two (22) members.

[4] Due to the fact-intensive nature of these motions and the parties numerous citations to and heavy reliance on the explicit language contained in the record, this Court is compelled to recite that language in this Order.
[5] A copy of the handwritten note is attached as Scolari's Exhibit 3-Q.
[6] The EEOC refers to Tom Trebesh as a Corporate Director. Scolari refers to Mr. Trebesh as a Director of Human Resources. (EEOC Amend. Opp. at 13; Scolari's Motion at 22.) At this stage, this Court makes no findings of the actual position that Mr. Trebesh held, i.e., whether he was a Corporate Director, Director of Human Resources, officer, or other supervisor. For purposes of this Order, this Court shall refer to Tom Trebesh as a "Director" only.
[7] He later was terminated on May 26, 2003, following a harassing incident with a checker, during which Mr. Lyman stared at her, and, when asked why he was doing that, he said, "because I can."
[8] The exact positions of those panel members is unclear. One of them, allegedly, was a representative of Gould's choice and another, allegedly, was an independent human resources consultant. Donald Crank was a Store Director for Scolari.
[9] . Notably, Ms. Stockford was sixteen-years-old at the time of the incident and nineteen at the time of the deposition.
[10] . The EEOC claims, over Scolari's objection, that it has received over 500 complaints by women and men attesting to the hostile work environment at Scolari and to the company's failure to remedy the harassment. See EEOC Amended Opposition at 1; Decl. Gregory McClinton (stating that "[t]here are 17 named class members and an unnamed class of similarly situated females for whom the Commission is seeking relief"). This will be addressed further in Section B of the Discussion.
[11] Those claimants are: Annalisa Schultz, Elaine Cox, Dana Gendreau, Julia Setzer, and Christina Thomas.
[12] One individual worked in Store No. 101; two worked in Store No. 103; four worked in Store No. 126; one worked in Store No. 116; six worked in Store No. 119; one worked in Store No. 111; two worked in Store No. 127; two worked in Store No. 120; one worked in Store No. 123; and one worked in Store No. 124.
[13] he EEOC does not respond to this argument, nor does it inform the court about the process that it went through to obtain information from the claimants before responding to the interrogatories. Still, it is reasonable for this Court to assume, for present purposes, that the EEOC gathered this information through some process, such as interviews or questionnaires, to respond to the interrogatories, seeing as the responses are reasonably detailed and specific to the claimants.
[14] Since then, the EEOC has added claimants to its list of alleged victims of harassment at Scolari's stores. Still, the fact that those claimants were not identified or interviewed at the time of the conciliation does not change the result of this Court's decision. A reasonable inference from the facts presented is that Scolari was aware of the alleged harassment against Ms. Gould, Ms. Stockton, and possibly Ms. Wagers and the reasons for the harassment; thus, it was in a position to confront the EEOC with any concerns that it might have had concerning alleged harassment occurring in its stores, albeit those concerns would have been directed toward a narrower group of individuals.
[15] For claims of constructive discharge, "[a] plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. at 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). Circuits are split on whether a constructive discharge constitutes a tangible employment action. This issue is an open question in the Ninth Circuit. See, e.g., Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1185 (9th Cir.2005) (finding no constructive discharge, without answering whether a constructive discharge may constitute a tangible employment action); Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir. 1999) (deciding not to make this determination because Plaintiff was not constructively discharged). This Court is unclear as to whether the EEOC is arguing that "constructive discharge" is a tangible employment action. Its brief, from what this Court has seen, does not clarify its position on that, though it appears to argue in its Statement of Material Facts, in numerous instances, that

Scolari is strictly liable under Burlington Indus., 524 U.S. at 765, 118 S.Ct. 2257, for actions against some claimants. Because it is unclear whether the EEOC is arguing that all claimants have suffered tangible employment actions at the hands of Scolari, as currently defined in case law, or whether some claimants left due to constructive discharge and whether that discharge rises to the level of a tangible employment action, this Court shall not make any rulings of law on that issue at this time.
[16] Confusingly, Scolari included only seventeen (17) class members on its Revised Appendix A, and, minus the two claimants that this court dismisses, this Court counts only seventeen (17) class members. The Appendix was filed after Scolari filed its Motion. Scolari may have winnowed down the list after receiving the EEOC's Amended Opposition, filed on November 21, 2006.
[17] For private suits, "a litigant has up to 180 or 300 days after the unlawful practice happened to file a charge with the EEOC"; the time-frame during which to file depends on whether the state at issue has its own entity, such as an employment agency, with the authority to grant or to seek relief. See Morgan, 536 U.S. at 109-10, 122 S.Ct. 2061. The Morgan court directly left open timely filing questions regarding "`pattern-or-practice' claims brought by private litigants," but that is not what this Court is dealing with here. Id. at 115 n. 9, 122 S.Ct. 2061.
[1] The Court files an Amended Order to clarify a few non-substantive points throughout the Order. The Amended Order does not alter the factual background or the substance of the decision in any way.
[2] Normally, the Court would not entertain new legal arguments raised for `the first time in a motion for reconsideration. Notwithstanding that general rule, because Scolari's arguments pertain to the award of punitive damages on which the Court previously ruled, the Court finds it necessary to address the argument before proceeding to trial.
[3] The EEOC does not argue that it intended to bring a class-wide claim under § 706 and a pattern-or-practice claim under § 707. Thus, in line with the Court's Order, it need not consider, sua sponte, whether the EEOC's claim under § 706 is subject to a timeliness problem. (Order at 36; Opposition at 9 n. 4.) The Court leaves for another day the issue of whether the timeliness provisions of § 706 would apply to pattern-or-practice claims brought pursuant to that section. See, e.g., Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. at 1084-88 (discussing timeliness requirements under §§ 706 and 707 as they apply to each section, but not as the requirements may apply to pattern-or-practice claims brought pursuant to § 706).
[4] The Court does not determine whether a pattern-or-practice claim may be brought under § 706 alone without reference to § 707, as that is not the case here. Additionally, because the EEOC is pursuing a pattern-or-practice claim based on a systemic pattern-or-practice of sexually harassing conduct that, it claims, permeated the workplace, rather than a class-wide claim based on individual complaints that could be isolated for timeliness purposes, the 180/300-day limitations period does not come into play.
[5] Again, the Court makes no finding regarding malice or reckless indifference. See Kolstad, 527 U.S. at 535-36, 119 S.Ct. 2118. That is a question of intent for the jury to determine. The Court merely finds that, based on the evidence set forth in the Court's Order and touched on herein, there is enough evidence that, if true, could support an inference that Scolari's owners and managers had the requisite mental state to justify an award of punitive damages. That mental state, however, is not for the Court to decide; it is for the EEOC to prove at trial.
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 United States EEOC v. Scolari Warehouse Mkts., Inc.
United States District Court for the District of Nevada January 29, 2007, Decided ; January 29, 2007, Filed
CV NO. 04-0229-DAE-RAM

Reporter: 2007 U.S. Dist. LEXIS 20719 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, vs. SCOLARI WAREHOUSE MARKETS, INCORPORATED, A NEVADA CORPORATION, D/B/A SCOLARI'S FOOD AND DRUG; AND DOES 1-10 INCLUSIVE, Defendant.
Subsequent History: AMENDED AS OF 05/22/2007. Reconsideration denied by United States EEOC v. Scolari Warehouse Mkts., Inc., 488 F. Supp. 2d 1117, 2007 U.S. Dist. LEXIS 37415 (D. Nev., 2007) Amended by United States EEOC v. Scolari Warehouse Mkts., Inc., 488 F. Supp. 2d 1117, 2007 U.S. Dist. LEXIS 59584 (D. Nev., 2007)
Counsel: [*1] For Plaintiff(s): Anna Park, Gregory L. McClinton, Victor Viramontes, U.S. Equal Employment Opportunity Commission, Legal Unit, Los Angeles, CA.
For Defendant(s): Lesa Wilson, (pro hac vice), San Diego, CA; Ljubisa Kostic, Stutz Artiano Shinoff & Holtz, APC, San Diego, CA; Miranda M. Du, Patricia K. Lundvall, McDonald Carano & Wilson, Reno, NV.
Judges: Honorable David Alan Ezra, UNITED STATES DISTRICT JUDGE.

FOR LEAVE TO AMEND COMPLAINT; AND DENYING THE EEOC'S MOTION TO STRIKE EVIDENCE INSOFAR AS IT PERTAINS TO THE EVIDENCE IN THIS MOTION
On January 5, 2007, this Court heard Scolari Warehouse Markets, Inc., a Nevada Corporation and d/b/a Scolari Food & Drug Company's ("Scolari") Motion for Summary Judgment. Additionally, this Court heard the Equal Employment Opportunity Commission's ("EEOC") Objections and Request to Strike Scolari's Evidence. Gregory McClinton, Esq. [*2] , appeared at the hearing on behalf of Plaintiff; Ray J. Artiano, Esq., appeared at the hearing on behalf of Scolari. After reviewing the motions and the supporting and opposing memoranda, this Court DENIES Scolari's Motion for, Summary Judgment For the Pattern-or-Practice Claim and For All But Two of the Individual Claimants, Namely, Ms. French and Ms. Renfroe; DENIES Scolari's Motion on the Punitive Damages Claim; GRANTS Summary Judgment To Dismiss Ms. French and Ms. Renfroe; GRANTS the EEOC's Motion for Leave to Amend Complaint; and DENIES Plaintiff's Motion to Strike Evidence Insofar As It Pertains to Evidence in This Motion.
BACKGROUND

Opinion by: David Alan Ezra
Opinion
AMENDED ORDER DENYING SCOLARI'S MOTION FOR SUMMARY JUDGMENT ON THE PATTERN-ORPRACTICE CLAIM AND FOR ALL BUT TWO OF THE CLAIMANTS, NAMELY MS. FRENCH AND MS. RENFROE; DENYING SUMMARY JUDGMENT ON SCOLARI'S PUNITIVE DAMAGES CLAIM; GRANTING SUMMARY JUDGMENT TO DISMISS MS. FRENCH AND MS. RENFROE; GRANTING THE EEOC'S MOTION

On May 6, 2004, the EEOC filed a Complaint against Scolari on behalf of a class of "similarly situated" individuals, employed by Scolari, on the basis of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964. The Complaint was amended on July 1, 2004. Since on or about January 1999, 1 the Charging Party, Jennifer Gould ("Ms. Gould"), and the other individuals claim that they were subjected to a hostile work environment at Scolari's stores, which Scolari's supervisors perpetuated, and that they were retaliated

1 Because this Court is granting the EEOC's Motion for Leave to Amend Complaint to change the date of the alleged acts from October 2002 to January 1999, this Court will refer to that date in this Order. See discussion infra Section C.1. The EEOC stated in its interrogatory response No. 91 that it was going to amend its First Amended Complaint to allege a pattern-or-practice of discrimination as early as January 1999. ( Scolari Ex. 7-A.) To this date, it has not amended the Complaint, though the EEOC's attorney stated during the hearing that it still seeks to amend the Complaint. For the reasons set forth in Section C.1 of the Discussion, this Court permits the amendment. Additionally, as noted in Section C.3 and C.5, the claimants alleging a hostile work environment before October 2002 are Annalisa Schultz, Elaine Cox, Dana Gendreau, Julia Setzer, and Christina Thomas, and there is sufficient evidence from their deposition testimonies to allow their cases to go forward.

2007 U.S. Dist. LEXIS 20719, *5

Page 2 of 13

against for complaining of the harassment. 2 [*3] There are concern with Mr. Lyman's managerial style and reported that

roughly seventeen (17) named claimants involved in this case she saw Ms. Stockford giving Mr. Lyman a massage a week

and an unnamed "class" of similarly situated females for or so before.

whom the Commission is seeking relief. 3

Following those events, Thomas Trebesh, a Director 6 for

A. Scolari's Company Policy Regarding Harassment

Scolari, began handling the case. According to a typewritten

letter signed by Ms. Gould, Mr. Trebesh asked her questions

Scolari has an Associates Handbook that states its and showed her statements from some of the other individuals

commitment to equal opportunity, to equal treatment, and to that were involved in this incident. Two notable statements

its policy on sexual harassment. Each employee is asked to were from Ms. Cain and the Store Director, Mr. Smith. Ms.

sign an acknowledgment that they have received after Cain made a handwritten statement that she had no

reviewing the Handbook. Scolari [*5] also has a company knowledge of Ms. Stockford being sick, and that she had not

policy prohibiting unlawful discrimination that directs an heard any conversation between Ms. Stockford and a

employee to report acts of discrimination to the employee's manager. Mr. Smith also wrote a [*7] handwritten statement,

supervisor, the Store Manager/Department Manager, denying any inappropriate comments, though he had not been

Personnel Manager, or to the Human Resources Director. standing in the circle at the time of the alleged harassment.

After which, the policy states that the matter will be Ms. Morris, too, subsequently denied hearing any

investigated promptly and handled appropriately. inappropriate remarks, according to an EEOC investigator's

Additionally, Scolari provides a training course regarding questions and handwritten responses.

unlawful discrimination and harassment.

Based on those statements, Scolari made the decision to

B. Charging Party: Ms. Gould

suspend Ms. Gould and, then, to terminate her employment.

According to Ms. Gould's deposition testimony, on or around October 5, 2002, Ms. Gould was standing in a circle with three other individuals, Kathy Cain, Lynette Morris, and Head Clerk Mike Lyman. A then-sixteen year old employee, named Brandi Stockford, allegedly approached the circle and announced that she was not feeling well. In response, Mr. Lyman allegedly replied, "why don't you suck some cock, you'll feel better," to which Ms. Cain allegedly responded, "I would like to bite one off." 4 Ms. Gould talked to Ms. Morris that day and told her that she believed that "what Mike had

The termination letter, from Tracy Lerud, Personnel Manager, stated, "Your discharge is a result of your omission of facts, falsification of personnel or other records, or giving false testimony or witness." ( Scolari's Ex. 3-W.) Mr. Lyman's employment was not terminated following this incident. 7 Ms. Gould appealed that decision to a three member panel: Rod Alec, Donald Crank, and Jim Nelson were the panel members. 8 The panel unanimously agreed to uphold Ms. Gould's termination. On October 31, 2002, Ms. Gould filed a Charge of Discrimination with the EEOC.

said was bad." Ms. Gould then wrote down what she heard Subsequently, Ms. Gould wrote a letter to Ms. Morris, dated

and who was in the circle, and she gave the note to her Store June 7, 2003, to encourage her to come forward with Director, [*6] Larry Smith. 5 She also expressed her

2 Scolari points out that Title VII pattern-or-practice actions are not subject to class certification requirements under Federal Rules of Civil Procedure ("Rule") 23. Still, it cited one case where the court referred to individual claimants as "class members" for the sake of convenience and for ease of reference. See EEOC v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 U.S. Dist. LEXIS 11226, 1999 WL 528200, at *1 n.3 (N.D. Ill. July 13, 1999). To avoid confusion, this Court will not refer to the named individuals as "class members," but rather it will refer to them in their individual capacity or, collectively, as "claimants."
3 That number has changed throughout the course of the proceedings, ranging from twelve (12) to twenty-two (22) members.
4 Due to the fact-intensive nature of these motions and the parties numerous citations to and heavy reliance on the explicit language contained in the record, this Court is compelled to recite that language in this Order.
5 A copy of the handwritten note is attached as Scolari's Exhibit 3-Q.
6 The EEOC refers to Tom Trebesh as a Corporate Director. Scolari refers to Mr. Trebesh as a Director of Human Resources. ( EEOC Amend. Opp. at 13; Scolari's Motion at 22.) At this stage, this Court makes no findings of the actual position that Mr. Trebesh held, i.e., whether he was a Corporate Director, Director of Human Resources, officer, or other supervisor. For purposes of this Order, this Court shall refer to Tom Trebesh as a "Director" only.
7 He later was terminated on May 26, 2003, following a harassing incident with a checker, during which Mr. Lyman stared at her, and, when asked why he was doing that, he said, "because I can."
8 The exact positions of those panel members is unclear. One of them, allegedly, was a representative of Gould's choice and another, allegedly, was an independent human resources consultant. Donald Crank was a Store Director for Scolari.

2007 U.S. Dist. LEXIS 20719, *7

Page 3 of 13

the truth and to describe the difficulty that she had in obtaining a job following her termination. Additionally, on D. Conciliation

January 26, 2006, Mr. Trebesh testified during his deposition that Ms. Cain confessed that she previously had lied about not hearing Mr. Lyman's comment. During Ms. Cain's deposition, she asserted her Fifth Amendment privilege not to testify. As for Ms. Stockford, at first she denied that Mr. Lyman made those comments because, as she claimed during her deposition on May 9, 2005, "she was scared" of getting fired. During her deposition; however, Ms. Stockford confirmed Ms. Gould's story and stated that it was wrong that she previously lied. 9

On August 5, 2003, the EEOC sent a Letter of Determination to Scolari regarding Ms. Gould's charge, "invit[ing] the parties to join with it in a collective effort toward a just resolution of this matter." ( Scolari's Ex. 3-PP). That [*11] same day, the EEOC sent Scolari a conciliation letter, summarizing the relief that the Commission sought. ( Scolari's Ex. 3-QQ.) The letter further stated that, "other reasonable resolution alternatives and offers, besides those listed above, can be proposed," again inviting Scolari to join in a collective effort toward a just resolution of the matter. (

[*9] On August 22, 2003, Mr. Trebesh wrote a letter to Ms. Id.)

Gould, stating,

The EEOC sent a third letter on September 30, 2003,

Since our original investigation, we have obtained additional information that would lead us to conclude that what occurred was actually less than clear. For this reason and in the interest of fairness, we want to give you the benefit of the doubt. We would like to offer you reinstatement to your former position as a checker at $ 14.45 per hour. We would hope that you seriously consider this offer.(Scolari's Ex. 3-LL.) (Emphasis added.) Ms. Gould turned down the offer.

notifying Scolari that a previous letter that stated that conciliation had failed was premature. (Scolari's Ex. 3-TT.) As such, the EEOC provided the parties with another opportunity to resolve the issues in the conciliation process. That letter further stated, "Ms. Gould was informed that Respondent is offering reinstatement, two months of earnings (less mitigating damages), and three weeks vacation time. During this discussion, Ms. Gould stated Respondent's offer was unacceptable." ( Id.) On September 24, 2003, the EEOC mailed a letter to Scolari's counsel, indicating that efforts to conciliate the charge were unsuccessful. ( Scolari's Ex. 3-

C. Other Claimants Alleging Harassment

UU.)

The sixteen (16) other claimants alleging harassment are: Natasha McGuire, Melissa Orsie, Jennifer Dicus, Annalisa Schultz, Brandi Stockford, Rachael Kennedy, Donna Park, Melody Warren (Wagers), Elaine Cox, Dana Gendreau, Lisa Ricci, Barbara LaForge, Sandra Serrano, Julia Setzer, Katie Jacobs, and Christina Thomas. 10 ( Scolari's Revised Apx. A.) Of those claimants, five of them ended their employment before October 2002, the date on which the target event occurred that triggered the instant Complaint. 11
Scolari has numerous stores, each of which is accorded a number, such as Store No. 101, 119, or 127. The claimants involved in this case worked in various stores. 12 The most complaints appeared to have occurred in Store No. 119, where Mr. Lyman was employed.

On May 6, 2004, the EEOC filed the instant Complaint. Additional facts will be raised as they become relevant.
[*12] STANDARD OF REVIEW
Rule 56 requires summary judgment to be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Porter v. California Dept. of Corrections, 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130,

9 Notably, Ms. Stockford was sixteen-years-old at the time of the incident and nineteen at the time of the deposition.
10 The EEOC claims, over Scolari's objection, that it has received over 500 complaints by women and men attesting to the hostile work environment at Scolari and to the company's failure to remedy the harassment. See EEOC Amended Opposition at 1; Decl. Gregory McClinton (stating that "[t]here are 17 named class members and an unnamed class of similarly situated females for whom the Commission is seeking relief"). This will be addressed further in Section B of the Discussion.
11 Those claimants are: Annalisa Schultz, Elaine Cox, Dana Gendreau, Julia Setzer, and Christina Thomas.
12 One individual worked in Store No. 101; two worked in Store No. 103; four worked in Store No. 126; one worked in Store No. 116; six worked in Store No. 119; one worked in Store No. 111; two worked in Store No. 127; two worked in Store No. 120; one worked in Store No. 123; and one worked in Store No. 124.

2007 U.S. Dist. LEXIS 20719, *12

Page 4 of 13

1134 (9th Cir. 2000). A main purpose of summary judgment from disputed facts that the judge is required to resolve in

is to dispose of factually unsupported claims and defenses. favor of the nonmoving party. T.W. Elec. Serv., 809 F.2d at

See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 631.

2548, 91 L. Ed. 2d 265 (1986).

[*15] DISCUSSION

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always,

Scolari moves for summary judgment or, in the alternative, partial summary judgment, on three grounds. First, it argues that the EEOC did not make a genuine, good faith effort to

the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). [*13] The burden initially falls upon the moving party to identify for the court those "portions of the materials on, file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,

resolve this matter informally through conciliation. Second, it contends that, even when viewing the facts in the light most favorable to the EEOC, it cannot establish a pattern-orpractice of harassment. Third, it alleges that the individual claimant's claims should be dismissed, including Ms. Gould's. Even if there is merit to the EEOC's claims, which Scolari does not concede, Scolari also argues that the EEOC cannot obtain punitive damages under the facts of this case.

809 F.2d 626, 630 (9th Cir. 1987)(citing Celotex Corp., 477

U.S. at 323).

Before reaching those arguments, Scolari argues that the

EEOC engaged in misconduct by swearing to false facts

Once the moving party has carried its burden under Rule 56, related to claimants. In support, Scolari picks apart the the nonmoving party "must set forth specific facts showing EEOC's responses to interrogatories, comparing the responses

that there is a genuine issue for trial," and the moving party may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). In setting forth "specific facts," the nonmoving party may not meet its burden on a summary judgment motion by making

to some of the claimant's deposition testimony. This Court sees no merit to Scolari's argument. The interrogatories contained some information that might not have been entirely accurate. For instance, contrary to what the EEOC noted in its responses, Ms. Cox stated that Mr. Barnes, her store manager, [*16] never made sexual advances toward her

general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f)("When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise [*14] statements of the parties."). "[A]t least some 'significant probative evidence'" must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). "A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." Addisu, 198 F.3d at 1134.

(though she did testify that he showed her nude pictures of himself, which displayed him "standing completely naked with a pair of high heels on and a feather boa") ( Cox Depo. at 52); Ms. Park stated that her manager, Mike Hutton, did not say, "I would like to get with you," but rather that he would make comments about her "behind, saying that [she] had a booty like a black girl" ( Park at 37), that she was offended by those comments ( Park at 37), and that he would make sexually-explicit comments about women shoppers ( Park at 39, 64); Ms. Gendreau stated that she did not recall whether she mentioned indecent photographs to a co-worker that she saw while developing film, and she did not mention the photographs to her store director (though she did testify that a supervisor showed her nude pictures of him and his girlfriend

When "direct evidence" produced by the moving party and made lewd comments) ( Gendreau at 47, 57, 72-73, 81,

conflicts with "direct evidence" produced by the party 89-90); and Ms. Ricci did not report complaints about her

opposing summary judgment, "the judge must assume the boss, named "Tom Hunter" (though she did claim that he

truth of the evidence set forth by the nonmoving party with discussed with her his penis size and his bad sexual

respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. In relationships, as well as rubbing his penis against her back on

other words, evidence and inferences must be construed in the multiple occasions and [*17] telling distasteful jokes) ( Ricci

light most favorable to the nonmoving party. Porter, 419 F.3d Depo. at 8, 45, 53). Scolari also criticizes the EEOC for

at 891. The court does not make credibility determinations or naming as a claimant a person who worked at Scolari for one

weigh conflicting evidence at the summary judgment stage. day.

Id. Inferences may be drawn, however, from underlying facts

not in dispute, as well as

There is no claim that the EEOC intentionally lied about its responses or that it swore to facts knowing that they

2007 U.S. Dist. LEXIS 20719, *17

Page 5 of 13

were false. See, cf., Morales v. Cooperative of Am. conciliation letter, namely, that it was charging sex-based

Physicians, Inc., Mutual Protection Trust, 180 F.3d 1060, harassment and retaliation claims. The fact that it did not

1063 (9th Cir. 1999)(holding that an interrogatory response in outline, in explicit detail, each claim [*20] and the theory for

a medical malpractice action that was not entirely accurate did each claim at that stage of the proceedings is no reason to find

not constitute a statement concealing the existence of an bad faith. "[D]istrict courts within the Ninth Circuit have

insurance policy to fall under the litigation privilege adopted the majority approach and have held that the district

exception). The EEOC simply put forth its story, based on court should focus on whether the EEOC provided the

information obtained from said claimants before responding employer with an opportunity to confront all the issues."

to the interrogatories, that, in retrospect, may not have been EEOC v. Lawry's Restaurant, Inc., No. CV 06-01963DDP,

entirely accurate. 13 The fact that there may have been some 2006 U.S. Dist. LEXIS 55859, 2006 WL 2085998, at *2

inconsistencies does not indicate that the claimants were (C.D. Cal. July 17, 2006)(emphasis added). "This approach

lying, as memory fades. The point is that the EEOC is trying comports with the statutory language in Title VII, which gives

to prove, and as this Order finds that the EEOC has proved, the EEOC discretion in determining whether a conciliation

that there are sufficient allegations of sexually harassing agreement is acceptable." Id.

conduct, which may or may not have been reported to superiors for a [*18] variety of reasons. Thus, there is no The EEOC conducted an Initial Intake Questionnaire for Ms.

evidence of misconduct, much less intentional misconduct. Gould, further telephonic interviews, and it obtained other

written statements from her concerning her charges before

A. Conciliation

filing a Charge of Discrimination on October 31, 2002. (

Scolari's Ex. 3-M, 3-N, 3-Y, 3-Z, 3-AA, 3-BB.) An EEOC

Scolari argues that "the EEOC failed to outline the basis for its cause determination, its theory of recovery, or the calculation of its demand for $ 790,000.00 or more. As such, Scolari maintains that "the EEOC engaged in coercion rather than in meaningful conciliation." ( Scolari's Motion at 29.) The EEOC responds that it engaged in, at least, two formal rounds of conciliation, and, according to the EEOC, an additional [*19] pre-lawsuit conference outside of the formal conciliation. ( Opposition at 41.) First, in its conciliation

investigator also interviewed Ms. Cain and Ms. Morris, the other two people in the circle with Ms. Gould at the time of the triggering incident, as well as the alleged victim, Ms. Stockford, and one other female employee of Scolari's, Melody Wagers. ( Scolari's Ex. 3-II, 3-JJ; [*21] EEOC's SOF at 163.) After conducting that investigation, the EEOC contacted Scolari, offering it, at least, two formal rounds of conciliation and, according to the EEOC, one postconciliation attempt to settle.

letter, the EEOC sought $ 250,000.00 plus lost wages for Ms.

Gould and $ 150,000.00 per claimant (which, at that time, Those actions occurred in 2002. The Complaint was filed in

numbered three), plus other non-monetary forms of relief. The 2004, giving the parties adequate time to resolve the issues

maximum under the law is $ 300,000.00 in compensatory and independent of the Court. See Lawry's Restaurant, 2006 U.S.

punitive damages for each claimant. See42 U.S.C. § Dist. LEXIS 55859, 2006 WL 2085998, at *2. Furthermore,

1981a(a)(3)(D). Scolari offered $ 4,300.00 in backpay for Ms. there was sufficient information at the employer's disposal to

Gould and nothing for the other claimants, which was probe and to confront all of the issues present at that time. 14

unacceptable to Ms. Gould and well under the proposed Like the district court found in Lawry's, this Court, too, finds

amount. Granted, the EEOC, to the best of this Court's that "it is unnecessary to stay the proceedings pending further

knowledge, did not present a full calculation for its demand. conciliation efforts because the parties have reached an

Nonetheless, because that amount was well within the impasse on a variety of issues and additional settlement

confines of the law, this Court cannot find that the amount discussions would be futile." Id.

that the EEOC proffered was excessive or made in bad faith

given the seriousness of the allegations.

[*22] B. Pattern-or-Practice

The EEOC outlined, as much as necessary, the basis for its cause determination when it specified the charges in its

13 The EEOC does not respond to this argument, nor does it inform the court about the process that it went through to obtain information from the claimants before responding to the interrogatories. Still, it is reasonable for this Court to assume, for present purposes, that the EEOC gathered this information through some process, such as interviews or questionnaires, to respond to the interrogatories, seeing as the responses are reasonably detailed and specific to the claimants.
14 Since then, the EEOC has added claimants to its list of alleged victims of harassment at Scolari's stores. Still, the fact that those claimants were not identified or interviewed at the time of the conciliation does not change the result of this Court's decision. A reasonable inference from the facts presented is that Scolari was aware of the alleged harassment against Ms. Gould, Ms. Stockton, and possibly Ms. Wagers and the reasons for the harassment; thus, it was in a position to confront the EEOC with any concerns that it might have had concerning alleged harassment occurring in its stores, albeit those concerns would have been directed toward a narrower group of individuals.

2007 U.S. Dist. LEXIS 20719, *22

Page 6 of 13

Under Title VII, the EEOC may bring a pattern-or-practice frequently and continuously, are indicative of a larger

action on the basis of sexual harassment. See EEOC v. problem requiring a company wide response." Id. (citation

Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1071 and internal quotation marks omitted).

(C.D. Ill. 1998). To prove a systemwide, pattern-or-practice

of discrimination, the EEOC must prove, by a preponderance Scolari argues that the circumstantial evidence that the EEOC

of evidence, that the sexual harassment was Scolari's provides and on which it relies does not establish a triable "standard operating procedure," rather than isolated incidents. issue of fact to satisfy either prong of the pattern-or-practice

Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 336 analysis. It focuses on the total number of claimants (17)

(1977), 97 S. Ct. 1843, 52 L. Ed. 2d 396; see also Obrey v. versus the total number of employees solicited (5,200). To be Johnson, 400 F.3d 691, 694 (9th Cir. 2005). "Discriminatory sure, statistics are one method by which to prove a pattern-or-

behavior comes in all shapes and sizes, and what might be an practice

claim,

but

they

"are

not

innocuous occurrence in some circumstances may, in the irrefutable." [*25] Teamsters, 431 U.S. at 339-40. They must

context of a pattern of discriminatory harassment, take on an be viewed in light of the surrounding circumstances of the

altogether different character, causing a worker to feel case. See id. at 340. Even if this Court were to accept

demeaned, humiliated, or intimidated on account of her Defendant's statistic over the EEOC's objection, ( EEOC

gender." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, Request to Strike at p. 25, fact 62), the EEOC claims that it

1109 (9th Cir. 1998). A pattern-or-practice of harassment has received over 500 complaints by women and men

ultimately might have a "chilling effect" on the women in the attesting to the hostile work environment at Scolari and to the

workforce, causing them to leave out of constructive company's failure to remedy the harassment. ( Amend. Opp. discharge or otherwise impairing [*23] the working at l.) This Court does not make a determination at this stage

environment.

concerning whether or not that is true, but, in taking the

evidence in the light most favorable to the EEOC, it accepts,

In determining whether claims of sexual harassment might for now, that there may be more than 17 claimants out there. (

amount to a hostile work environment, a claimant must allege Decl. Gregory McClinton (stating that "[t]here are 17 named

a "pattern of ongoing and persistent harassment severe class members and an unnamed class of similarly situated

enough to alter the conditions of employment." Burrell v. Star females for whom the Commission is seeking relief")

Nursery, Inc., 170 F.3d 951, 954 (9th Cir. 1999)(citation (emphasis added). The fact that the EEOC, at this juncture,

omitted). "The working environment must 'both subjectively may have been able to identify only 17 claimants, out of all

and objectively be perceived as abusive' because of the sexual possible employees solicited, does not indicate that there is no

harassment." Id. at 954 (citing Fuller v. City of Oakland, 47 hostile or harassing work environment, even assuming, for

F.3d 1522, 1527 (9th Cir. 1995)).

now, that that statistic is true.

"In reviewing the record, the trier of fact must answer two main questions: (1) was the complainant, 'because of her sex, subjected to such hostile, intimidating, or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked[,]' and, if so, (2) was 'the defendant's response or lack thereof to its employees' behavior . . . negligent." Mitsubishi, 990 F. Supp. at 1071 (citation omitted). The first prong requires both an objective and a subjective analysis. See id. The second prong requires an inquiry into whether the employer knew or should [*24] have known of the harassing behavior, for example, through notice to the employer or through frequent, common and continuous harassing behavior. See id. at 1071, 1074. "An employer can be said to be negligent for company-wide sexual harassment when it has a policy or practice of tolerating a work environment that it knows or should have known is permeated with sexual harassment, but does not take steps to address the problem on a company-wide basis." See id. at 1075. If there is a company-wide problem, "[s]teps must be taken to determine whether individual incidents, which occur

There are multiple, reasons that people may not step forward, such as out of a fear of losing their job or being singled out for more harassment. This is particularly true in cases, such as here, where one employee has stepped forward and [*26] has lost her job and others have left, possibly because of coming forward or feeling uncomfortable for being singled out. This Court finds striking that all but one claimant has left her employment with Scolari. This Court does not care to speculate about the reasons why other employees have not been willing to sign on to the Complaint; it merely concludes that it does not find the minimal statistical evidence that Scolari provides persuasive because there are numerous other reasons to explain away the comparatively small number of claimants involved in this case.
1. Harassing Behavior
Here, the EEOC has presented numerous instances of undisputed harassing behavior that was directed at the claimants based on their sex. Some of the comments were so severe that they adversely could have affected working conditions, such as "look at the camel toe on that thing. I

2007 U.S. Dist. LEXIS 20719, *26

Page 7 of 13

could ride that all day" ( Kennedy Depo. at 61-62); "show me Gendreau) [*29] nude pictures of him and his girlfriend and

your tits" ( Warren's Depo. at 55); a comment by Mike Lyman making lewd comments, though inappropriate and

to Ms. Gould about "how well he ate pussy" ( Gould Depo. at both objectively and subjectively offensive, some might

31); and displaying pictures of a sexual nature involving suggest may not rise to the level of "severe or pervasive" to

nudity. Objectively, a reasonable person could find an form a claim of hostile work environment. Nonetheless, this

environment in which [*27] those conditions occurred Court is dealing with a "pattern-or-practice" of harassing

hostile, and, subjectively, the named claimants could have behavior that, when the instances of harassment are taken in

perceived those conditions as being hostile. Still, the question combination, could rise to the level of a hostile work

remains whether those acts, legally, rise to the level of a environment. The majority of the instances of harassment by

hostile work environment, that is, whether those acts are employees and/or supervisors or assistant managers that

sufficiently severe or pervasive.

occurred across Scolari's stores within a matter of years

(between January 1999 through, to the best of this Court's The most frequent acts of sexual harassment appear to have knowledge, sometime in 2003) were sufficiently severe and occurred in Store No. 119, mostly by Mike Lyman. For pervasive, both objectively and subjectively, to rise to the

example, Mr. Lyman allegedly told Ms. Stockford to "suck level of a hostile work environment, particularly when viewed some cock" when Ms. Stockford told him that she was not in the light most favorable to the EEOC. feeling well; Mr. Lyman allegedly made unwelcome "vulgar

comments" to Ms. Warren, such as "show me your tits" and "I Furthermore, these instances are but a handful of examples.

had a dream that you were a "topless dancer" ( Warren's As mentioned, the EEOC maintains that it has received over

Depo. at 55, 60); and Mr. Lyman allegedly told Ms. Gould 500 complaints by women and men attesting to the hostile

about "how well he ate pussy." Another occurrence in Store work environment at Scolari and to the company's failure to

No. 119 was when Brandon Hood, Ms. Kennedy's Manager, remedy [*30] the harassment, which could be further

allegedly told her, "look at the camel toe on that thing. I could established at trial. See EEOC Amend. Opp. at 1; Decl.

ride that all day."

Gregory McClinton (stating that "[t]here are 17 named class

Although the acts occurring in other stores possibly were less frequent, some, were quite severe in nature. For instance, Ms. Ricci's boss, who apparently worked in Store No. 123, discussed his penis size and bad sexual relationships with her [*28] and rubbed his penis against her back on multiple occasions; a man named Mr. Barnes showed photographs to Ms. Cox, who worked in Store No. 120, that displayed him "standing completely naked with a pair of high heels on and a

members and an unnamed class of similarly situated females for whom the Commission is seeking relief"). This Court is not basing its conclusion that the first prong of the Mitsubishi test has been established on that possibility, as there is sufficient evidence without it to reach this conclusion. It merely emphasizes that the examples provided may not tell the full story; rather, they comprise but a subset of what may be to come. Though, even without more, there is enough here to satisfy the first prong.

feather boa"; and incidents of various sexually harassing

behavior occurring at other stores, such as Store 24 and Store 2. Scolari's Response to Behavior

26, to Ms. Jacobs that involved questions about sexual positions that she had had with boyfriends, rumors being spread about Ms. Jacobs "giving blow jobs in the produce cooler" and "flashing her breasts to the produce guys," and a survey that was conducted in which guys at work voted her "best butt, biggest breasts, and DSL lips, which means dick sucking lips." ( Jacobs' Depo. at 25, 30-31, 86, 90, 102.) Those acts reasonably could be construed as being more than merely offensive, but as being sufficiently harassing in nature to alter conditions at work negatively.

This Court now turns to the second prong, i.e., Scolari's response or lack thereof to the harassing behavior. First, this Court notes that, although Scolari relies on its company policy for safety, where a tangible employment action has occurred, such as termination, the employer is strictly liable. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Thus, in the case of Ms. Gould, and possibly other claimants, Scolari's policy will not save it, if her termination, in fact, was based on her act of informing management of the situation with Ms. Stockford.

Some of the harassing behavior, such as supervisors or assistant managers touching or brushing up against some female employees by rubbing hips (namely, Ms. LaForge and Ms. Schultz) ( LaForge Depo. at 33; Schultz at 38) or a supervisor showing an employee (namely, Ms.

Second, when no tangible employment action is taken, company policies prohibiting harassment [*31] and providing steps to take to eradicate that harassment may be used as an affirmative defense to a claim of hostile work

2007 U.S. Dist. LEXIS 20719, *31

Page 8 of 13

environment. 15See id. at 765. "The defense comprises two

necessary elements: (a) that the employer exercised Another example is when Ms. Jacobs testified that the store

reasonable care to prevent and [to] correct promptly any owners, Joey and Jerry Scolari, "stare[d] at [her] ass" and

sexually harassing behavior, and (b) that the plaintiff "looked at [her] breasts all the time." ( Jacobs Depo. at 90-

employee unreasonably failed to take advantage of any 91.) She stated that she felt that if she complained, she would

preventive or corrective opportunities provided by the have been fired. ( Jacobs Depo. at 92.) She subsequently left

employer or to avoid harm otherwise." Id.

her employment in March 2004. Defendants point out that the

only way that she could recall this harassment was after she

[*32] Here, there are genuine issues of material fact looked at the EEOC attorney's notes, [*34] which the EEOC

concerning whether all or some of the employees took represented as Jacobs' notes. ( Scolari's Motion at 60.) This

advantage of any preventative or corrective opportunities and creates a genuine issue of material fact about why Ms. Jacobs

whether Scolari exercised reasonable care to prevent and to left her employment and what actually occurred during her

correct promptly any sexually harassing behavior. First, this employment. Although the EEOC did not argue this, or, if it

Court notes that almost all of the allegations of sexual did, it was not obvious from its brief, those facts could

harassment involved managers or superiors of some sort, amount to a constructive discharge.

including Director Tom Trebesh, Store Directors Donald

Crank and Greg Herring, Managers Dean Osborne, Brandon Yet another example is when Ms. Gould complained about Hood, Sean Flaherty, Tom Barnes and Martin Hager, and the situation with Ms. Stockford and Mr. Lyman, and,

Head Clerk Mike Lyman. There is a dispute, however, as to subsequently, was terminated as "a result of [her] omission of

whether certain employees brought their complaints to the facts, falsification of personnel or other records, or giving

attention of their managers and the effects of those false testimony or witness." She appealed, and her termination

complaints. For instance, although difficult to discern from was upheld. Only afterwards did Scolari admit that "what

the deposition testimony provided, the EEOC argues that Ms. occurred was actually less than clear," offering Ms. Gould

Ricci sent a letter to Scolari's owners complaining about reinstatement, which she turned down.

harassing behavior and whether she spoke to Tracy Lerud at human resources. ( Disputed Facts at 25; Ricci Depo. at 10304.) Scolari points out that Ms. Ricci, at another point in her deposition, testified that she did not report her manager's harassing conduct to the human resources department. The [*33] EEOC argues that that point is "undisputed and irrelevant," as it does in some other instances, stating that Scolari is strictly liable under Burlington Indus., 524 U.S. at

Finally, although only moderately helpful without reasons for leaving, all but one of the female claimants has left employment with Scolari. The parties do not lay out, individually, why each employee left, and it is not this Court's responsibility to dig through the record (or through the voluminous briefs for that matter) for such information, but, on its face, that fact does not bode well [*35] for Scolari.

765. ( EEOC SOF at fact 298.) This Court comments, however, that Scolari may be strictly liable only if a constructive discharge constitutes a tangible employment action, unless the EEOC has enough evidence to prove that Ms. Ricci was fired for informing her managers of the harassing conduct, if she indeed did that. In any case, genuine issues of material fact have been created, that is, did Ms. Ricci, in fact, report the harassing conduct to her managers; if so, to whom; and if so, was she terminated because of that action?

Furthermore, this Court finds particularly instructive the expert, Michael Robbins's report. ( EEOC Ex. at 39.) Notably, Mr. Robbins "has worked as an expert witness on more than 250 occasions," and he "has extensive experience conducting harassment, discrimination and employee misconduct investigations-- having conducted over 200 workplace investigations." ( Id. at Ex. A.) Many of his other accomplishments, such as his background in employment law, his publications in employment law

15 For claims of constructive discharge, "[a] plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Suders, 542 U.S. at 147 (2004). Circuits are split on whether a constructive discharge constitutes a tangible employment action. This issue is an open question in the Ninth Circuit. See, e.g.,Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1185 (9th Cir. 2005)(finding no constructive discharge, without answering whether a constructive discharge may constitute a tangible employment action); Montero v AGCO Corp., 192 F.3d 856, 861 (9th Cir. 1999)(deciding not to make this determination because Plaintiff was not constructively discharged). This Court is unclear as to whether the EEOC is arguing that "constructive discharge" is a tangible employment action. Its brief, from what this Court has seen, does not clarify its position on that, though it appears to argue in its Statement of Material Facts, in numerous instances, that Scolari is strictly liable under Burlington Indus., 524 U.S. at 765, for actions against some claimants. Because it is unclear whether the EEOC is arguing that all claimants have suffered tangible employment actions at the hands of Scolari, as currently defined in case law, or whether some claimants left due to constructive discharge and whether that discharge rises to the level of a tangible employment action, this Court shall not make any rulings of law on that issue at this time.

2007 U.S. Dist. LEXIS 20719, *35

Page 9 of 13

journals and reports, his teaching and lecturing experience at various employment law centers and law schools, and his membership on the Executive Board of the Los Angeles County Bar Association's Labor & Employment Law Section, as well as others, leads this Court to view Mr. Robbins as a reputable source of expert testimony.
Mr. Robbins's report is based on the testimony of Company, witnesses, and it is rife with instances indicating a failure to exercise reasonable care in dealing with the instances of harassment. For example, Ms. McGuire (a cashier) in a 2003 letter to the Company's CEO and to the COO accused a number of people of harassment, including Paul McEwen (Store Director) [*36] and Shawn Flaharty (Head Clerk). Still, no one spoke to Mr. McEwen about this or to Mr. Flaharty until 2005. ( Report at 3.) Additionally, although not all allegations were reported to human resources (for a variety of reasons), even when such allegations were reported to human resources, according to the report, they were not investigated fully. ( Report at 4.) The best example would be Ms. Gould. Following the investigation, Mr. Trebesh, in a letter dated August 22, 2003 to Ms. Gould, admitted "[s]ince [Scolari's] original investigation, we have obtained additional information that would lead us to conclude that what occurred was actually less than clear," offering Ms. Gould reinstatement "in the interest of fairness." ( Scolari's Ex. 3LL.) Furthermore, rather than an investigation into Ms. Wagers' complaint, Mr. Smith "simply talked to Wagers. And, nothing more was done." ( Report at 10.) Moreover, after Ms. Kennedy's "camel toe" incident, allegations arose two years later against Mr. Hood, the supervisor who said it, for making the same comment. Only then did Mr. Hood admit to making it, and he was "disciplined" for it. ( Report at 14.)
Still, this Court notes Scolari's argument that "none of the eligible class members claim that she made a complaint to Human Resources regarding conduct perceived as sexual harassment" and that "most of the class never reported any inappropriate behavior to Human Resources or to the store director," pointing to 13 class members. [*37] ( Scolari Motion at 21.) Scolari also takes issue with the reasons why some of the employees left; for instance, it states that Ms. McGuire resigned on October 27, 2003 because she had a poor attendance policy. Notwithstanding, this Court takes heed of Ms. McGuire's letter, written on June 18, 2003, expressing her concern over retaliation and over the "hostile work environment" that was "threat[ening]" her. ( EEOC Ex. 47.)

involved in that matter, and she may or may not have treated Ms. McGuire fairly. ( Id. at 39.) Additionally, from what this Court gathers from the record, Ms. McGuire reported sexually harassing conduct to her managers, even though she stated on at least a couple of occasions that she was in fear of losing her job for reporting such conduct. ( McGuire. Depo. at 97, 110, 123.) When she was given an option to transfer to another store, she declined it because she did not feel that she was doing anything wrong. ( Id. at 113.) She further [*38] stated, "I felt that if I went to another store if they didn't protect me at my store why were they going to protect me at another store." ( Id. at 113.) With this, and without knowing the full story about why Ms. McGuire (and others) were terminated, this Court cannot dismiss this case (or Ms. McGuire's and others' individual claims, as will be discussed) at this stage when there are genuine issues of material fact in dispute. As the EEOC points out, Scolari's reasons could be pretextual, but, right now, that answer is unclear. See e.g., Dominguez-Curry, 424 F.3d at 1037.
This Court finds particularly disturbing the number of instances of harassing conduct, the nature of the conduct, and the testimonials of fear of consequences that, when viewed in the light most favorable to the EEOC, could prove a patternor-practice of discrimination. That said, it is too early for that to be determined because there are a number of material facts in dispute. It could be that, rather than a pattern-or-practice or hostile work environment, there truly was only one or a handful of parties at fault, namely, Mr. Lyman, and some other managers/store directors. At this point, this [*39] Court cannot determine whether the acts noted above, and others that the EEOC believes might come forward throughout the course of this litigation, rise to the level of a pattern-orpractice claim, nor is it asked to at this stage as the EEOC did not file a summary judgment motion. It merely finds that Scolari has failed in its burden to prove that there are no genuine issues of material fact in dispute; thus, its motion for summary judgment concerning the pattern-or-practice claim is DENIED.
C. Individual Claimants
Scolari next moves for summary judgment on the individual claimants, arguing that Ms. Gould's claim fails as a matter of law and addressing the other individual claimants' claims in regard to the strength of each as a composition of the group of claimants contributing to the pattern-or-practice claim.
1. Motion for Leave to Amend Complaint

Ms. McGuire also testified during her deposition that she was suspended, but that that suspension was revoked because she had a doctor's note for being sick. ( McGuire Depo. at 63, pp. 36-38.) Tracey Lerud somehow was

Scolari argues that seven of the twenty (20) claimants were not employed at Scolari at any time "since on or about October 2002"; thus, they are not eligible "class

2007 U.S. Dist. LEXIS 20719, *39

Page 10 of 13

members." 16 ( Scolari's Motion at 20.) The EEOC responded statute of limitations for 707 claims may be illogical because

in its Opposition, arguing that they are eligible. As for the there is no certain date from which the limitations period

seven members, Ms. Setzer, Ms. French, [*40] Ms. Cox, Ms. could run). See generally Federal Procedure, Lawyer's Edition

Thomas, Ms. Schultz, and Ms. Gendreau, that were not § 50-633 (1997) ("There is [] no statute of limitations under

employed in 2002, this Court sees no reason to dismiss their Title VII for pattern-or-practice suits brought by the EEOC.")

claims based on that fact alone.

[*43] Notwithstanding, Scolari does not appear to argue that

The EEOC stated in interrogatory response No. 91 that it was the EEOC's pattern-or-practice claim is susceptible to a

going to amend its Complaint, changing the time period from statute of limitations problem, but rather it argues that

when the harassing conduct began to occur from October individuals not employed with Scolari during the 180/300-day

2002 to January 1999. The reasoning provided was that, on period or during the alleged pattern-or-practice, beginning on

July 6, 2006, the EEOC informed Scolari in writing that, after or about October 2002, are not covered. As addressed above,

conducting discovery, it identified a broader group of this Court is permitting the Motion for Leave to Amend

individual claimants. ( Scolari Ex. 40.) In that letter, the Complaint to allow the allegations to date back to January

EEOC sought a stipulation to amend the Complaint to make 1999. Thus, the individuals with allegations dating back to

the relevant time [*41] period starting in January 1999. ( Id.) that date are not dismissed as being outside of the statute of

A party may amend a pleading with leave of the court "upon limitations period because they are rightful members of the

motion of any party at any time, even after judgment." pattern-or-practice claim brought by the EEOC. Additionally,

Fed.R.Civ.P. 15(b). Although it is not entirely clear whether Scolari argues that individuals not employed with it during

the EEOC is requesting this of the Court; this Court will take the 180/300-day period of limitations cannot recover. The

the opportunity to allow the EEOC to amend its Complaint, in EEOC notes, in footnote 8, that "[a]lthough no administrative

the interest of justice. To the best of this Court's knowledge, time-limit applies to either of the EEOC's claims, the

Scolari has not objected to that amendment, under Rule 15(b), Supreme Court has held that the 300-day limitation (rather

arguing prejudice. Even if it had, however, this Court still than the 180-day limitation) applies in Nevada for individual

would allow the amendment, in the interest of justice, because administrative charges." (Emphasis added.) Because there are

the EEOC has provided adequate reason to enlarge the group no individual charges in this case, outside of Ms. Gould's

of claimants, without presenting any new prejudice to Scolari. triggering [*44] charge, this Court need not concern itself

with potential timeliness

2. Statute of Limitations

3. Ms. Gould, Ms. Stockford, Ms. Jacobs, Ms. McGuire, Ms.

This Court now turns to the potential statute of limitations Wagers, Ms. Cox, Ms. Kennedy, Ms. Ricci, and Ms.

problems. The EEOC is the only federal law enforcement Gendreau

agency that may pursue pattern-or-practice claims against

private entities. See42 U.S.C. § 2000e-6 (pattern-or-practice This Court disagrees that Ms. Gould's individual claim of

claims commonly are referred to as "707 cases" because sexual harassment and retaliation fail as a matter of law, for

authority is derived from § 707 of Title VII). Unlike private all of the factual disputes listed above. It sees no reason, to

litigants, a statute of limitations does not apply when reiterate the facts and the arguments again. As for Ms.

the [*42] EEOC brings a pattern-or-practice suit. 17See42 Stockford, Ms. McGuire, Ms. Jacobs, Ms. Cox, Ms. Wagers,

U.S.C. § 2000e-6; see also Mitsubishi, 990 F. Supp. at 1083- Ms. Ricci, Ms. Kennedy, and Ms. Gendreau, for the same

84 (commenting that 707 claims do not contain a statute of reason, this Court disagrees that their claims fail as a matter of

limitations for pattern-or-practice cases initiated by a law. There are facts in dispute concerning whether some of

Commissioner's charge); U.S. v. Fresno Unified School Dist., the claimants reported sexually harassing conduct and, if not,

592 F.2d 1088, 1096 n.5 (9th Cir. 1979)(noting, indirectly, why they failed to report it, and, finally, why they left their

that

employment with Scolari.

16 Confusingly, Scolari included only seventeen (17) class members on its Revised Appendix A, and, minus the two claimants that this court dismisses, this Court counts only seventeen (17) class members. The Appendix was filed after Scolari filed its Motion. Scolari may have winnowed down the list after receiving the EEOC's Amended Opposition, filed on November 21, 2006.
17 For private suits, "a litigant has up to 180 or 300 days after the unlawful practice happened to file a charge with the EEOC"; the timeframe during which to file depends on whether the state at issue has its own entity, such as an employment agency, with the authority to grant or to seek relief. See Morgan, 536 U.S. at 109-10. The Morgan court directly left open timely filing questions regarding "'pattern-orpractice' claims brought by private litigants," but that is not what this Court is dealing with here. Id. at 115 n. 9.

2007 U.S. Dist. LEXIS 20719, *44

Page 11 of 13

4. Ms. Orsie

those employment concerns are mere pretext for unlawful

employment practices.

Scolari faults Ms. Orsie for signing the Associate Handbook,

going through the training course, not making complaints Third, Scolari wants to dismiss Ms. Dicus, arguing that her

about sexual harassment, namely, that Mr. Crank, her only claims are that her manager was very controlling and

manager, stared at her chest and touched her shoulder "a lot," hard to work with, which would not contribute to a claim of

and then abandoning her job without notice. ( Orsie Depo. at hostile work environment. The EEOC responds that Ms.

37-38.) [*45] The EEOC objects, arguing that Ms. Orsie Dicus's supervisors, Mr. Hagar and Tom Burrows, would look

"felt extremely uncomfortable" working at Scolari, which is at pictures of hookers from Thailand on the work computer

why she quit, though she did not mention this to anyone. ( and discuss them ( Dicus Depo. at 49); that Mr. Burrows

Orsie Depo. at 36.) The EEOC, moreover, makes the point would make comments about Ms. Dicus's body ( Dicus at 57);

that Mr. Crank's activities made her "feel really and that Hagar would call a woman named "Bonny" a "big

uncomfortable." ( Orsie at 40.) Alone those acts do not rise to pussy," i.e., that she either was one or that she had one. (

the level of "severe or pervasive conduct"; thus, as a matter of Dicus at 89-90.) Those disagreements create genuine issues of

law, Ms. Orsie would not be able to maintain an individual material fact concerning the acts that occurred and whether

sexual harassment complaint. That is not, however, what this those acts, depending on what they actually are, rise to the

Court is dealing with here. Rather, this case involves a level of severe or pervasive conduct (or add to that conduct)

pattern-or-practice of harassment that rises to the level of a to create a hostile work environment.

hostile work environment claim, which claims are "comprised

of a series of separate acts that collectively constitute 'one Fourth, Scolari claims that Ms. LaForge complained of

unlawful employment practice.'" Morgan, 536 U.S. at 117. problems concerning employee gossip, rules broken,

Thus, Ms. Orsie's complained-of acts, when combined with insubordinate behavior and other such behavior that is not

all of the other claims of harassing behavior and when viewed based on sex. The EEOC points to evidence in Ms.

in total with the other claims, may be used to support the LaForge's [*48] deposition that a coworker named "Jerry"

EEOC's hostile work environment claim.

sexually harassed her; that he placed his hip next to hers; and

that she complained to her store manager about a "pushing

5. Remaining claimants: Kathleen French, GeGe Renfroe, incident" that was sexual in nature. ( LaForge Depo. Ex. 60,

Julia Setzer, Jennifer Dicus, Barbara LaForge, Donna Park, 32, 38, 39.) A genuine issue of material fact is created as to

Sandra Serrano, Annalisa Schultz, [*46] and Christina whether or not the harassing behavior was, in fact, based on

Thomas

sex.

First, the EEOC is not seeking relief on behalf of Ms. French or Ms. Renfroe. ( EEOC SOF at 255-56.) Thus, they are dismissed.
Second, Scolari combats the EEOC's inclusion of Ms. Setzer by arguing that she was terminated or that she left her employment, due to "issues with co-employees" and for taking time off of work for a non-work related foot injury during the last two months of her employment, rather than for the sexually harassing behavior of which she complains. Ms. Setzer testified during her deposition that coworkers would come by her work station and stare at her breasts; when she complained to her female manager, she was told that "you have big breasts, and that's what they're [i.e., the coworkers] are here for." ( Setzer's Depo. at 15.) She further testified that there used to be Maxim magazines with half dressed women spread all over the tables in the store break room, which made her feel uncomfortable. ( Id. at 16.) Notably, Ms. Setzer is a licensed ordained minister. ( Id. at 6.) Based on those facts, there is a genuine dispute about whether Ms. Setzer was terminated due to legitimate employment reasons, whether she left out of constructive [*47] discharge, or whether

Fifth, Scolari contends that Ms. Park was terminated for falsifying her employment by omitting her previous employment with Scolari. The EEOC argues that Park claimed that her manager, Mike Hutton, would make comments about her "behind, saying that [she] had a booty like a black girl" ( Park Depo. at 37), that she was offended by those comments ( Id.) and that he would make sexually explicit comments about women shoppers ( Id. at 39, 64). Those comments made her "feel bad" and "sad." ( Id. at 64.) A genuine issue of material fact is created as to whether Ms. Park was terminated for legitimate reasons or whether those reasons were pretextual.
Sixth, Scolari contends that Ms. Serrano was terminated for cashing personal checks. The Appeal Board unanimously upheld this. The EEOC provides deposition testimony from Ms. Serrano, in which she states that male [*49] employees in the produce department made comments that offended her such as "what type of underwear are you wearing" and "how far would you go on the first date, what is your cup size," and other similar remarks, and that she complained to her manager, "Mark." ( Serrano Depo. at 30-32.) She also alleges that "Mark"

2007 U.S. Dist. LEXIS 20719, *49

Page 12 of 13

made offensive jokes to her, though her recollection of those discriminatory employment decisions of its agents, i.e., its

jokes was not great. ( Id. at 39.) This creates a genuine issue managers, if those decisions are contrary to the employer's

of material fact concerning whether Ms. Serrano was "good faith efforts to comply with Title VII." Kolstad, 527

terminated for pretextual reasons.

U.S. at 545.

Seventh, Scolari seeks to dismiss Ms. Schultz, arguing that she was dismissed for "excessive tardiness." Schultz testified during her deposition, however, that some employees, including managers "Rich" and "Gordy," told "off-color jokes" that "were mostly sexual in nature." ( Schultz Depo. at 21-22.) She also recalled a comment about a customer looking like a "whore," though she did not recall who said that. ( Id. at 26.) She did state, however, that she did not complain about it because "it was managers that were doing it." ( Id. at 29.) There are other allegations, but these alone raise a genuine issue of material fact concerning whether Ms. Schultz was dismissed for "excessive [*50] tardiness" or for other pretextual reasons, such as being a trouble-maker or something akin.
Eighth, Scolari argues that Ms. Thomas voluntarily resigned to go back to school. Scolari makes an issue out of the fact that her co-worker, Sal Scavo, and a manager, Dean Osborne, sexually harassed her, but yet Ms. Thomas did not complain about this to management. ( Thomas Depo. at 36.) The EEOC objects to Ms. Thomas's reasons for leaving as irrelevant. This Court finds Ms. Thomas's reasons for leaving employment relevant, but, it does not, at this point, draw any conclusions from those reasons. Additionally, this Court finds Ms. Thomas's reasons for not reporting the conduct to management highly relevant. Ms. Thomas stated, "[i]t was kind of a well-known fact at the store that that kind of stuff was going on with Dean to other female employees, and they had supposedly complained and nothing was done about it. That's why everybody would just try to avoid him." ( Thomas Depo. at 36.) That creates a genuine issue of material fact about whether harassment existed, about the reasons why Ms. Thomas failed to report that behavior to management, i.e., for fear of consequences, and whether [*51] that harassment, if it in fact is true, constituted a constructive discharge, thus prompting Ms. Thomas to go back to school as a safeguard from the company.
D. Punitive Damages
Punitive damages may be awarded if the EEOC can demonstrate that Defendant engaged in a discriminatory practice with malice or reckless indifference to its employees' rights. See42 U.S.C. § 1981a(b)(1); see also Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535-36, 119 S. Ct. 2118, 144 L. Ed. 2d 494 (1999). Those terms "ultimately focus on the actor's state of mind." Kolstad, 527 U.S. at 526. There is a "good faith" exception where an employer may avoid vicarious liability for

To start, the employer, Scolari, put anti-harassment policies in place to combat discriminatory policies. The fact that there were policies in place, however, does not automatically lead to the conclusion that Scolari made "good-faith efforts to comply with Title VII." One can have good faith [*52] efforts to start, but then fall short in practice.
Besides all of the allegations of harassment against the managers, Scolari's owners are accused of harassment, possibly imputing their conduct to Scolari, the entity. The owners' clear disregard for the policies that they put in place is, if proven, remarkable. But, remarkable does not necessarily equate to malicious or reckless indifference, which requires "an additional [higher] demonstration" that may be reviewed only by looking to the owners' subjective intent. Kolstad, 527 U.S. at 526, 534. "The terms 'malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Id. at 535. A showing of "egregiousness" is not required to demonstrate malice or reckless indifference, "although evidence of egregious misconduct may be used to meet the plaintiffs burden of proof." Id. at 546. A mere "disregard," without a showing of intent, would not prove a knowing violation of federal law to rise to the level of malice or reckless indifference. Thus, the question becomes, [*53] is there enough evidence for a jury reasonably to find intent on the part of Scolari's owners and managers to discriminate, namely, to harass the claimants sexually with knowledge that they may have been acting in violation of federal law?
In the Memorandum on "Company Policy - Unlawful Discrimination," it states that "Congress has also made such practices [of discrimination] illegal by virtue of Title VII of the Civil Rights Act of 1964, the age discrimination in Employment Act Section 504 of the Rehabilitation Act of 1973, and other applicable legislation." The Memorandum goes on to describe its policy prohibiting sexual harassment. At the bottom of that memorandum is a note, "Please Post Permanently," indicating that that memorandum was posted permanently in Scolari's stores. ( Scolari's Ex. at 1-B.) The Associates Handbook does not appear to state the actual federal law at issue, though it does state its commitment to preventing "illegal harassment" and discrimination. ( Scolari's Ex. at 1-A, at p. 10.) The written material used in Scolari's training seminar similarly indicates the company's intention not to permit harassing behavior, without specifically noting the federal [*54] law at issue. ( Scolari's Ex. at 1-C.)

2007 U.S. Dist. LEXIS 20719, *54

Page 13 of 13

This Court acknowledges that "[t]he very structure of § 1981a to classify as one of those "subsets" of intentional

suggests a congressional intent to authorize punitive awards in discrimination cases that would permit an award [*56] of

only a subset of cases involving intentional discrimination." punitive damages. If at a later stage of these proceedings it

Kolstad, 527 U.S. at 534-35. It, furthermore, takes heed of the appears that the record does not suggest going forward with a

circumstances under which claims of intentional punitive damages claim, then the claim can be dismissed at

discrimination will not give rise to punitive damages, such as that time.

where the employer is "unaware of the relevant federal

prohibition" and where an "employer discriminates with the CONCLUSION

distinct belief that its discrimination is lawful." Id. at 537; see also id. at 551 (Stevens, J., with whom Souter, J., Ginsburg, J., and Breyer, J. join) (indicating, in passing, ways for an employer to prove willful violation of the law, such as through hostility toward employment discrimination laws). In the instant case, Scolari's owners, as well as the managers, are being accused of harassing behavior in violation of their own policies, one of which explicitly states that discriminatory behavior constitutes a violation of Title VII. Those facts, if proven, could indicate an awareness of (and possibly [*55] a

For the reasons stated above, this Court DENIES Scolari's Motion for Summary Judgment For the Pattern-or-Practice Claim and For All But Two of the Individual Claimants, Namely, Ms. French and Ms. Renfroe; DENIES Scolari's Motion on the Punitive Damages Claim; GRANTS Summary Judgment To Dismiss Ms. French and Ms. Renfroe; GRANTS the EEOC's Motion for Leave to Amend Complaint; and DENIES Plaintiff's Motion to Strike Evidence Insofar As It Pertains to Evidence in This Motion.

hostility toward) the relevant federal prohibition against sexual harassment and discriminatory conduct and a reckless IT IS SO ORDERED.

indifference toward it.

DATED: Honolulu, Hawaii, May 22, 2007.

The inquiry does not end there, however. The EEOC still must impute liability of the owners and the managers to Scolari, the entity. See527 U.S. at 539. As mentioned, where good faith efforts to comply with Title VII are made, punitive damages may be avoided. See id. at 545. From what is before this Court, particularly the instances of alleged harassment by the owners, there is enough evidence that, if true, could support an inference that the requisite mental state of Scolari's owners and managers may be imputed to Scolari, the entity. See id. at 546. The fact that policies are in existence, without implementation or enforcement of the policies, means nothing.
Accordingly, based on the facts of this case, a genuine issue of material fact has been established concerning whether Scolari's owners and managers acted with the requisite mental state, i.e., malice or reckless indifference,

David Alan Ezra
UNITED STATES DISTRICT JUDGE
U.S. Equal Employment Opportunity Commission vs. Scolari Warehouse Markets, Incorporated, et al., CV. NO. 04-0229DAE-RAM; AMENDED ORDER DENYING SCOLARI'S MOTION FOR SUMMARY JUDGMENT ON THE PATTERN-OR-PRACTICE CLAIM AND FOR ALL BUT TWO OF THE CLAIMANTS, NAMELY, MS. FRENCH AND MS. RENFROE; DENYING SUMMARY JUDGMENT ON SCOLARI'S PUNITIVE DAMAGES CLAIM; GRANTING SUMMARY JUDGMENT TO DISMISS MS. FRENCH [*57] AND MS. RENFROE; GRANTING THE EEOC'S MOTION FOR LEAVE TO AMEND COMPLAINT; AND DENYING THE EEOC'S MOTION TO STRIKE EVIDENCE INSOFAR AS IT PERTAINS TO THE EVIDENCE IN THIS MOTION

 
 Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 1 of 16
ENE
United States District Court District of Nevada (Reno)
CIVIL DOCKET FOR CASE #: 3:04−cv−00229−DAE−RAM

U.S. Equal Employment Opportunity Commission VS Scolari Warehouse Markets, et al. Assigned to: Judge David A. Ezra Referred to: Magistrate Judge Robert A. McQuaid, Jr Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 05/06/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

U.S. Equal Employment Opportunity Commission

represented by Anna Park U.S. Equal Employment Opportunity Commission 255 East Temple Street 4th Floor Los Angeles , CA 90012− 213−894−1083 Email: anna.park@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory L. McClinton United States Equal Employment Opportunity Commission Legal unit 255 East Temple Street 4th Floor Los Angeles , CA 90012− (213) 894−1000 Fax: 213−894−1118 Email: Gregory.McClinton@EEOC.Gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Viramontes U.S. Equal Employment Opportunity Commission Legal Unit 255 East Temple Street 4th Floor Los Angeles , CA 90012− Email: victor.viramontes@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug

represented by Lesa Wilson pro hac vice 401 West A Street Suite 1500 San Diego , CA 92101−7906 619−232−3122 Fax: 619 232 3264 Email: lwilson@stutzartiano.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ljubisa Kostic Stutz Artiano Shinoff &Holtz, APC

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 2 of 16
2488 Historic Decatur Road Suite 200 San Diego , CA 92106 (619) 232−3122 Fax: (619) 232−3264 Email: lkostic@stutzartiano.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miranda M Du McDonald Carano &Wilson 100 West Liberty Street, 10th Floor P.O. Box 2670 Reno , NV 89505−2670 775−788−2000 Fax: 775−788−2020 Email: mdu@mcdonaldcarano.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia K. Lundvall McDonald Carano Wilson LLP 100 West Liberty Street, 10th Floor P.O. Box 2670 Reno , NV 89505−2670 775−788−2000 Fax: 775−788−2020 Email: lundvall@mcdonaldcarano.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ray Artiano Stutz Artiano Shinoff &Hodtz 401 West A Street 15th Floor San Diego , CA 92101−7906 619−232−3122 Fax: 619−232−3264 Email: rartiano@stutzartiano.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/06/2004 05/06/2004 05/06/2004
05/26/2004
07/01/2004
07/12/2004
07/12/2004
07/13/2004

#

Docket Text

1 MISCELLANEOUS DOCUMENT obo P (Entered: 05/07/2004)

2 COMPLAINT obo P. (Entered: 05/07/2004)

3 SUMMONS ISSUED as to Scolari Warehouse. (Entered: 05/07/2004)

4 ACCEPTANCE OF SERVICE obo Scolaris Warehouse. (Entered: 05/27/2004)

5 AMENDED COMPLAINT with jury trial demand obo P (Entered: 07/02/2004)

6 MOTION TO DISMISS for failure to conciliate as required by Title 7 of the CRA of 1964 obo D. (Entered: 07/13/2004)

7 STATEMENT of material facts not in dispute in spt of mtn to dism #6 obo D. (Entered: 07/13/2004)

8 ORDER above entitled action is hereby reassigned to the Hon Howard D. McKibben, USDJ for all fur proceed. cnsl are advs that all fur doc sh bear the correct case #

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 3 of 16

07/23/2004 07/23/2004 07/23/2004 07/23/2004 07/30/2004 07/30/2004
08/02/2004 08/12/2004 08/12/2004 08/12/2004 09/10/2004 09/14/2004 09/20/2004 09/28/2004 10/07/2004
11/17/2004 11/17/2004 11/17/2004 11/17/2004

CV−N−04−0229−HDM RAM. Clk of Crt is dir to change the file and dkt to reflect this reass (Entered: 07/14/2004)
9 VERIFIED PETITION FOR PERMISSION TO PRACTICE PRO HAC VICE of Ray Artiano cnsl for D Scolari's Receipt 16447 (Entered: 07/26/2004)
10 DESIGNATION OF LOCAL COUNSEL of Mirandu Du, loc cnsl for out of state cnsl Ray Artiano (Entered: 07/26/2004)
11 VERIFIED PETITION FOR PERMISSION TO PRACTICE PRO HAC VICE of Lesa Wilson, out of state cnsl for D, Scolari's. receipt 16447 (Entered: 07/26/2004)
12 DESIGNATION OF LOCAL COUNSEL of Miranda Du, loc cnsl for out of state cnsl Lesa Wilson. cnsl for D (Entered: 07/26/2004)
13 RESPONSE IN OPPOSITION TO MOTION to D mtn to dism #6 obo P. (Entered: 08/02/2004)
14 OBJECTION TO REPORT AND RECOMMENDATIONS to D mtn to dism #6 and request to exclude from D moving papers factual material extraneous to the pleadings or in the alt to strike the mtn and supporting materials in their entirety obo P. (Entered: 08/02/2004)
15 MISCELLANEOUS DOCUMENT to oppo #13 to mtn dism #6 obo P. (Entered: 08/03/2004)
16 REPLY TO RESPONSE TO MOTION in supprt of Rule 12(b)(6) mtn to dism (#6) obo D. (m) (Entered: 08/13/2004)
17 MISCELLANEOUS DOCUMENT declaratn of Ray J. Artiano in supprt of 12(b)(6) mtn to dism (#6) obo D. (m) (Entered: 08/13/2004)
18 RESPONSE IN OPPOSITION TO MOTION to Ps objectn to mtn or in the alt to strk (# ) obo D. (m) (Entered: 08/13/2004)
19 CERTIFICATE OF INTERESTED PARTIES obo D. (Entered: 09/13/2004)
20 ORDER parties have 5 days from date of receipt of this m/o to submit said disc plan and sched order (Entered: 09/14/2004)
MISCELLANEOUS DOCUMENT disc plan and sched order this date (Entered: 09/21/2004)
21 SCHEDULING ORDER discovery c/o 4/8/05; dispositive mtns c/o 5/7/05; PTO due 6/7/05; maj packet sent to parties (Entered: 09/30/2004)
22 NOTICE OF CHANGE OF ADDRESS law firm from Stutz Gallagher, Artiano, Shinoff and Holtz to Stutz Artiano Shinoff &Holtz. suite #1500 . correct zip code is 92101−7906. (Entered: 10/12/2004)
23 MOTION FOR MISCELLANEOUS RELIEF for partial sstay or disc pend decision on mtn to dism obo D. (Entered: 11/17/2004)
24 MISCELLANEOUS DOCUMENT to mtn to dism #6 obo D. (Entered: 11/17/2004)
25 MOTION FOR MISCELLANEOUS RELIEF to supplement mtn to dism #6 obo P. (Entered: 11/17/2004)
26 MOTION FOR MISCELLANEOUS RELIEF for disc guidance obo D. (Entered: 11/17/2004)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 4 of 16

12/06/2004 12/06/2004 12/16/2004
12/17/2004 12/20/2004 12/20/2004 12/20/2004 12/30/2004 01/04/2005 01/18/2005
02/02/2005 02/03/2005 02/08/2005 02/11/2005 02/11/2005 02/17/2005 02/22/2005 02/22/2005 02/28/2005 02/28/2005

27 RESPONSE IN OPPOSITION TO MOTION to mtn to supplement mtn to dism #25 obo P. (Entered: 12/07/2004)
28 RESPONSE IN OPPOSITION TO MOTION to mtn for disc guidance #26 obo P. (Entered: 12/07/2004)
29 ORDER Ds mtn to dism #6 is denied without prej to be renewed as a mtn for S/J. P's req to exclude frm D's moving papers factual material #14 is granted. D's mtn to supplement its mtn to dis #25 is denied. (Entered: 12/17/2004)
30 REPLY TO RESPONSE TO MOTION in spt of mtn to supplement #25 obo D. (Entered: 12/20/2004)
31 REPLY TO RESPONSE TO MOTION in spt of mtn for disc quidance #26 obo D. (Entered: 12/21/2004)
32 ORDER D's mtn for partial Stay #23 is denied as moot. (Entered: 12/21/2004)
33 ORDER teleph hrng set for 1/18/05 130pm re D's mtn for disc guidance #26 and P's counter mtn for protective order #28. cnsl notif. (Entered: 12/21/2004)
34 ANSWER TO COMPLAINT to first amend complaint #5 obo D. (Entered: 01/03/2005)
35 REPLY TO RESPONSE TO MOTION to D oppo to P counter mtn for protective order obo P. (Entered: 01/04/2005)
36 MISCELLANEOUS HEARING re mtns #26 and 28 dtd 1/18/05: Ord that McClinton will ID the people with whom the EECO has agreement to be part of this case. They will be the claimants. the other people who McClinton has a good reason to believe may join wil (Entered: 01/19/2005)
37 MOTION FOR PROTECTIVE ORDER and for sanctions (emerg) obo D (Entered: 02/03/2005)
38 ORDER hrng set for 2/11/05 230pm re D mtn for protective order and sanction #37. courtesy copy of P rspn sh be sent ot chambers by 2/10/05. cnsl notif. (Entered: 02/04/2005)
39 REPLY TO RESPONSE TO MOTION in spt of mtn for protective order and sanctions #37 obo D. (Entered: 02/09/2005)
40 RESPONSE IN OPPOSITION TO MOTION to mtn for protective ord &for sanctns (#37) obo P. (f) (Entered: 02/15/2005)
41 MISCELLANEOUS HEARING (Dtd: 2/11/05) ORD tht mtn for protective ord &for sanctns (#37) is tkn under submission. Crt will iss a written ord. (Tape #05−025) (Entered: 02/15/2005)
42 STRICKEN DOCUMENT(S) 2nd supplmntl memo of law in supprt of mtn for protective ord &for sanctns obo D. (f/m) stricken and return per #45 (Entered: 02/17/2005)
43 STRICKEN DOCUMENT(S) in spt of P oppo to D 2d supplemental reply obo P. stricken and rtn per #45 (Entered: 02/23/2005)
44 STRICKEN DOCUMENT(S) and objctn to D's 2d supplemental reply obo P stricken and rtn per #45. (Entered: 02/23/2005)
45 ORDER Doc #42, 43 44 therefore stricken and CLk sh rtn the doc to respective attys. (Entered: 03/01/2005)
46 ORDER D mtn for protective order and for sanctions #37 is denied. (Entered: 03/01/2005)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 5 of 16

03/01/2005 03/04/2005 03/15/2005
03/21/2005 03/22/2005 03/28/2005 04/04/2005 04/04/2005 04/07/2005 04/15/2005
07/15/2005 07/15/2005 07/22/2005 08/08/2005 08/09/2005 08/09/2005
08/09/2005 08/09/2005 08/23/2005

47 SCHEDULING ORDER disc c/o 12/25/05; dispo mtn c/o 1/20/06; PTNO 2/28/06 or 30 days (Entered: 03/02/2005)
48 MOTION FOR PROTECTIVE ORDER that deposition of Latayna Williams not be taken obo P. (Entered: 03/07/2005)
49 MOTION TO COMPEL responses to interrog and request for admissions, to compel production of withdheld docs and for sanctions obo D. Scolari's. placed in separate folder due to size (Entered: 03/16/2005)
50 RESPONSE IN OPPOSITION TO MOTION to EEOC mtn for protective order #48 obo D. Scolari (Entered: 03/22/2005)
51 MISCELLANEOUS DOCUMENT to doc #50 re mtn for protective order #48 obo D (Entered: 03/23/2005)
52 ORDER teleph hearing set 4/14/05 130pm re Ps mtn for protective order #48 and D mtn to comepl #49. courtroom dep will ilnitiate calls. cnsl notif. (Entered: 03/29/2005)
53 REPLY TO RESPONSE TO MOTION in spt of mtn for protect order #48 obo P. (Entered: 04/05/2005)
54 RESPONSE IN OPPOSITION TO MOTION to mtn to compel #49 obo P (Entered: 04/05/2005)
55 REPLY TO RESPONSE TO MOTION in spt of mtn to compel #49 obo Ds. Scolari (Entered: 04/11/2005)
56 MISCELLANEOUS HEARING re mtns #48 and 49 dtd 4/14/05: court grants mtn #48 for protective order to extent that depo of Ms Williams may be taken limited to the statements and the circumstances re the statements, but no as to any conciliation; Court order (Entered: 04/18/2005)
57 MOTION FOR SUMMARY JUDGMENT obo D. (Entered: 07/18/2005)
58 MOTION FOR MISCELLANEOUS RELIEF to file brief in excess of 30 pages in spt of mtn for S/J (#57) obo D. (brief attached in separate folder) (Entered: 07/18/2005)
59 ORDER D mtn to file an oversized brief #58 is granted. (Entered: 07/25/2005)
60 AFFIDAVIT of Gregory L. McClinton in spt of dism and or stay of D's mtn for S/J and or for leave to conduct additional disc obo P. (Entered: 08/09/2005)
61 MOTION FOR MISCELLANEOUS RELIEF to disqualify cnsl with declaration of Greogry L McClinon and exbt 1−4 obo P. (Entered: 08/10/2005)
62 MOTION FOR MISCELLANEOUS RELIEF and application purs to FRCP Rule 56(f) and affid of Gregory L. McClinton for dism and or stay of D's mtn for summary judgment and or for leave to conduct addtnl disc obo P. (Entered: 08/10/2005)
63 MISCELLANEOUS DOCUMENT unsigned order allow P req for D mtn for S/J be stayed until the disc c/o date of 12/25/05. (Entered: 08/10/2005)
64 ORDER P sh not be required to rspnd to D mtn for S/J until D responds to P mtn for a stay that was filed with teh court on 8/8/05 and the court rules on the mtn. (Entered: 08/10/2005)
65 RESPONSE IN OPPOSITION TO MOTION to mtn and application #62 obo D. (Entered: 08/24/2005)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 6 of 16

08/24/2005 08/26/2005 08/26/2005 09/08/2005 09/09/2005 09/12/2005 09/20/2005 09/28/2005 10/18/2005 10/26/2005 10/31/2005 11/04/2005
11/16/2005 11/22/2005 12/05/2005 12/06/2005
12/08/2005

66 MISCELLANEOUS DOCUMENT to oppo #65 re mtn #62 re D. (Entered: 08/25/2005)
67 RESPONSE IN OPPOSITION TO MOTION to mtn to disqualify #61 obo D (Entered: 08/29/2005)
68 RESPONSE IN OPPOSITION TO MOTION to disqualify #61 obo D. (Entered: 08/29/2005)
69 REPLY TO RESPONSE TO MOTION in spt of mtn #62 obo P (Entered: 09/09/2005)
70 REPLY TO RESPONSE TO MOTION in spt of mtn to disqualify cnsl #62 obo P. (Entered: 09/12/2005)
71 MISCELLANEOUS DOCUMENT re mtn to disqualify #61 obo D (Entered: 09/13/2005)
72 ORDER D supplement #71 is withdrawn or in alt disregard till 9/16/05 (Entered: 09/21/2005)
73 ORDER hearing re Mtn to disqualify counsel #61 set for 10/18/05 9am (Entered: 09/30/2005)
74 MISCELLANEOUS HEARING (Dtd: 10/18/05) Hrg on Mtn to disq (#61); Mtn will be denied, but a written ord will follow. (FTR 9:01am−9:25am) (Entered: 10/20/2005)
75 ORDER P's mtn to disqualify cnsl #61 is denied. (Entered: 10/28/2005)
76 ORDER disc c/o 12/25/05; partiesd will exchange expoert info by 1/8/06; interim status rpt due by 12/25/05 (Entered: 11/01/2005)
77 MOTION for Sanctions against the EEOC re frivolous mtn to disqualify the law firm of Stutz Artiano Shinoff &Holtz, APC obo Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Responses due by 11/22/2005. (WJ, ) (Entered: 11/10/2005)
78 ORDER action reassigned to the Honorable Brian E. Sandoval. Signed by Judge Philip M. Pro on 11/16/05. (LG, ) (Entered: 11/16/2005)
79 RESPONSE to 77 MOTION for Sanctions; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 12/6/2005. (JAR, ) (Entered: 12/05/2005)
80 STIPULATION − to ext the discovery c/o date by Plaintiff U.S. Equal Employment Opportunity Commission. (JAR, ) (Entered: 12/05/2005)
81 SCHEDULING ORDER pursuant to Stipulation to Extend the Discovery Cut Off Date 80 ; Discovery Cut−Off: March 31, 2006; Dispositive Motions: April 30, 2006; Joint Pretrial Order: May 30, 2006. Signed by Judge Robert A. McQuaid Jr. on 12/6/05. (HJ, ) (Entered: 12/06/2005)
82 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge on 12/8/2005. By Deputy Clerk: GMM. A telephonic Hearing regarding the Motion for Sanctions 77 is set for 12/16/2005 10:00 AM in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid Jr. Counsel shall contact the courtroom deputy, Gina Mugnaini, at (775) 686−5758, two days in advance of the hearing to advise her of the telephone number(s) where they may be reached for the hearing. The courtroom deputy will initiate the conference call. The parties have been notified telephonically and by

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 7 of 16

12/16/2005
12/28/2005 01/04/2006 01/04/2006
02/07/2006 02/07/2006 02/07/2006 03/07/2006 03/15/2006

facsimile.(no image attached) (GMM, ) (Entered: 12/08/2005)
83 MINUTES OF PROCEEDINGS − Motion Hearing held on 12/16/2005 before Judge Robert A. McQuaid Jr.. Crtrm Administrator: GMM; Pla Counsel: Gregory McClinton; Victor Veramontes; Def Counsel: Ljubisa Kostic; Court Reporter/FTR #: FTR; Time of Hearing: 9:58 a.m. to 10:26 a.m.. RE: 77 MOTION for Sanctions filed by Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug, The parties present their respective arguments to the Court. The Court finds that after Plaintiff had received the affidavits of Stutz, Artiano it was bad faith and a violation of Rule 11 to continue with the motion to disqualify as to Stutz, Artiano. The Court further finds that after receipt of the affidavits of Stutz, Artiano, the Plaintiff had no factual nor legal basis to continue the motion as to Stutz, Artiano. The Court GRANTS the Motion for Sanctions 77 and awards to Defendant and against the EEOC and Gregory McClinton the sum of $4,000.00(no image attached) (GMM, ) (Entered: 12/16/2005)
84 TRANSCRIPT of Proceedings: re telephonic mtn hrg held on 12/16/05 before Judge Robert A. McQuaid, Jr. Court Reporter: Donna Davidson. (SA, ) (Entered: 12/28/2005)
85 First MOTION to Reconsider Magistrate Judge Order Rule 11 Sanctions by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 1/22/2006. (McClinton, Gregory) (Entered: 01/04/2006)
86 Exhibits to 85 First MOTION to Reconsider Magistrate Judge Order Rule 11 Sanctions by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 1/22/2006. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7# 8 Exhibit Exhibit 8# 9 Exhibit Exhibit 9# 10 Exhibit Exhibit 10# 11 Exhibit Exhibit 11# 12 Index Index of Exhibits# 13 Declaration Declaration of Anna Park# 14 Proposed Order Proposed Order)(McClinton, Gregory) Modified on 8/17/2006 to link to #85 (AF) (Entered: 01/04/2006)
87 Submission of PROPOSED ORDER filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. RE: DISCOVERY CUTOFF (Kostic, Ljubisa) (Entered: 02/07/2006)
88 EX PARTE DOCUMENT Request for Status Conference filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 02/07/2006)
89 AMENDED SCHEDULING ORDER pursuant to 87 Stipulation to Extend the Discovery Cut Off Date. New discovery deadline: 6/29/2006; Dispositive motions deadline: 7/29/2006; Joint Pretrial Order deadline: 8/28/2006. Signed by Judge Robert A. McQuaid Jr. (HJ, ) (Entered: 02/07/2006)
90 Third Party MOTION for Leave to Appear Appearance of Government Attorney. Permit Appearance of Government Attorney Attorney: Wilfredo Tungol. by Plaintiff U.S. Equal Employment Opportunity Commission. (Park, Anna) (Entered: 03/07/2006)
91 RESPONSE to 85 First MOTION to Reconsider Magistrate Judge Order Rule 11 Sanctions; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Replies due by 3/29/2006. (Kostic, Ljubisa) (Entered: 03/15/2006)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 8 of 16

03/15/2006 03/16/2006 03/17/2006 03/29/2006 03/30/2006 05/02/2006 05/02/2006 06/21/2006
06/22/2006 08/07/2006 09/27/2006 09/28/2006

92 RESPONSE to 85 First MOTION to Reconsider Magistrate Judge Order Rule 11 Sanctions; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Declaration and Exhibits Replies due by 3/29/2006. (Attachments: # 1 Exhibit Exhibits D − K)(Kostic, Ljubisa) (Entered: 03/15/2006)
93 RESPONSE to 86 First MOTION to Reconsider Magistrate Judge Order Rule 11 Sanctions; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. SUPPLEMENT Replies due by 3/30/2006. (Kostic, Ljubisa) (Entered: 03/16/2006)
94 ORDER granting 90 MOTION for Leave to Appear as of government attorney. Attorney: Wilfredo Tungol. by Plaintiff U.S. Equal Employment Opportunity Commission. (JAR, ) (Entered: 03/17/2006)
95 REPLY to Response to 85 First MOTION to Reconsider Magistrate Judge Order Rule 11 Sanctions; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 03/29/2006)
96 DECLARATION of Gregory L. McClinton re 85 First MOTION to Reconsider Magistrate Judge Order Rule 11 Sanctions; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Declaration in Support of Reply (Attachments: # 1 Exhibit Notice of Filing, Proof of Service and Declaration)(McClinton, Gregory) (Entered: 03/30/2006)
97 STIPULATION TO EXTEND DISCOVERY CUT OFF DATE by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 05/02/2006)
98 AMENDED SCHEDULING ORDER re 97 Stipulation to Extend Discovery Cut−Off Date. Discovery due by 9/27/2006. Motions due by 10/27/2006. Proposed Joint Pretrial Order due by 11/26/2006. Signed by Judge Robert A. McQuaid Jr. on 5/2/2006. (HJ, ) (Entered: 05/02/2006)
99 MINUTE ORDER IN CHAMBERS of the Honorable Philip M. Pro, U.S. District Judge on 6/21/2006. By Deputy Clerk: Lia Griffin. IT IS ORDERED that this case is reassigned to Judge Howard D. McKibben for all further proceedings. Judge Brian E. Sandoval no longer assigned to case. All further documents must bear the correct case number 3:04−cv−00229−HDM−RAM. (no image attached) (LG, ) (Entered: 06/21/2006)
100 ORDER tht the Magistrate Judge has extended discovery til 9/27/06, The D's Mtn for SJ doc # 57 is DENIED without prejudice to renew 15 days after the close of discovery. Signed by Judge Howard D. McKibben on 6/22/06. (SA, ) (Entered: 06/22/2006)
101 ORDER denying 85 Motion to Reconsider Magistrate Judge Order; P−EEOC req to set aside rule 11 sanctions 85 is denied w/o prejudice, see ord for spec. Signed by Judge Howard D. McKibben on 8/7/06. (JAR, ) (Entered: 08/07/2006)
102 STIPULATION JOINT APPLICATION AND STIPULATION RE: DEPOSITION, MOTION SCHEDULE, EXPERT REPORT AND [PROPOSED] ORDER by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 09/27/2006)
103 ORDER ON STIPULATION re 102 Stipulation re Deposition Schedule and Expert Report. See Stip/Order for further details.

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 9 of 16

10/24/2006
10/27/2006 11/17/2006 11/17/2006
11/18/2006 11/18/2006 11/18/2006

Signed by Judge Robert A. McQuaid Jr. on 9/27/2006. (HJ, ) (Entered: 09/28/2006)
104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Responses due by 11/11/2006. (Attachments: # 1 Second half of the MSJ# 2 Separate Statement of Undisputed Facts (Original)# 3 Supplemental Separate Statement of Undisputed Facts# 4 Index Index of Exhibits# 5 Exhibit Exhibits 1 to 1−A# 6 Exhibit 1−B to 2−C# 7 Exhibit 2−D to 3−I# 8 Exhibit 3−J to 3−N# 9 Exhibit 3−O# 10 Exhibit 3−P to 3−BB# 11 Exhibit 3−CC to 3−II# 12 Exhibit 3−JJ to 3−NN# 13 Exhibit 3−OO to 3−QQ# 14 Exhibit 3−RR to 3−WW# 15 Exhibit 3−XX (first half)# 16 Exhibit 3−XX (second half)# 17 Exhibit 3−YY to 3−III# 18 Exhibit 3−JJJ to 3−LLL (half)# 19 Exhibit 3−LLL (2nd half) to 3−NNN# 20 Exhibit 3−OOO# 21 Exhibit 4 to 5−A (beginning)# 22 Exhibit 5−A (middle)# 23 Exhibit 5−A (end)# 24 Exhibit 6 to 7−B# 25 Exhibit 7−C# 26 Exhibit 7−D to 7−F# 27 Exhibit 7−G to 7−H# 28 Exhibit 7−I# 29 Exhibit 7−J to 7−K# 30 Exhibit 7−L to 7−M# 31 Exhibit 7−N to 7−Q# 32 Exhibit 7−R to 7−S)(Kostic, Ljubisa) (Entered: 10/24/2006)
105 MINUTE ORDER IN CHAMBERS of the Honorable Philip M. Pro, Chief U.S. District Judge on 10/27/2006. By Deputy Clerk: Lia Griffin. IT IS ORDERED that this case is reassigned to Judge David A. Ezra for all further proceedings. Judge Howard D. McKibben no longer assigned to case. All further documents must bear the correct case number 3:04−cv−00229−DAE−RAM. (no image attached) (LG) (Entered: 10/27/2006)
106 RESPONSE to 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 12/1/2006. (Attachments: # 1 Brief)(McClinton, Gregory) (Entered: 11/17/2006)
107 DECLARATION of Gregory L. McClinton in Support of Plaintiff EEOC's Opposition to Defendant's Motion for Summary Judgment re 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Index Index of Exhibits# 2 Exhibit Exhibits 1 − 3# 3 Exhibit Exhibits 4 − 9# 4 Exhibit Exhibits 10 − 17# 5 Exhibit Exhibits 18 − 31# 6 Exhibit Exhibits 32 − 40# 7 Exhibit Exhibits 41 − 44# 8 Exhibit Exhibits 45 − 47# 9 Exhibit Exhibits 48 − 56# 10 Exhibit Exhibits 57 − 61# 11 Exhibit Exhibits 62 − 66# 12 Exhibit Exhibits 67 − 75# 13 Exhibit Exhibits 76 − 80)(McClinton, Gregory) (Entered: 11/18/2006)
108 STATEMENT of Additional Material Facts in Opposition to Defendant's Motion for Summary Judgment by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 11/18/2006)
109 MOTION for Leave to File Excess Brief by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 11/18/2006)
110 OBJECTION EEOC's Objections and Request to Strike Defendant's Evidence filed by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) Modified on 11/27/2006 please refer to redocketed docket entry 115 had to redocket in order to activate motion tracking. (BLG). (Entered: 11/18/2006)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 10 of 16

11/18/2006 11/21/2006
11/21/2006 11/21/2006
11/21/2006 11/30/2006 11/30/2006 12/01/2006 12/06/2006 12/14/2006

115 Objections MOTION to Strike Defendant's Evidence filed by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) Responses due by 12/6/2006. 110 −Redocketed by Clerk's Office to activate Motion status. Counsel are hereby advised to file motions separately. Thank You.(BLG) (Entered: 11/27/2006)
111 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge on 11/21/2006. By Deputy Clerk: GMM. RE: 109 MOTION for Leave to File Excess Brief Plaintiff's Motion for Leave to File Brief in Excess of Thirty Pages in Support of Its Opposition to Defendant Scolari's Motion for Summary Judgment 109 is GRANTED.(no image attached) (GMM, ) (Entered: 11/21/2006)
112 RESPONSE to 109 MOTION for Leave to File Excess Brief, 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Amended Brief Replies due by 12/5/2006. (McClinton, Gregory) (Entered: 11/21/2006)
113 RESPONSE to 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Amended Declaration of Gregory L. McClinton in Support of Plaintiff EEOC's Opposition to Defendant's Motion for Summary Judgment Replies due by 12/5/2006. (McClinton, Gregory) (Entered: 11/21/2006)
114 ERRATA to 106 Response to Motion for Summary Judgment; Notice of Errata filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Amended Exhibit 2)(McClinton, Gregory) (Entered: 11/21/2006)
116 Unopposed MOTION for Leave to File Stipulation to Allow Filing of Inadvertently Omitted Document and Extend the Due Date for Reply Accordingly by Plaintiff U.S. Equal Employment Opportunity Commission. (Viramontes, Victor) (Entered: 11/30/2006)
117 RESPONSE to 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages; filed by Plaintiff U.S. Equal Employment Opportunity Commission. EEOC's Statement of Material Facts in Opposition to Defendant's Motion for Summary Judgment Replies due by 12/14/2006. (McClinton, Gregory) (Entered: 11/30/2006)
118 ORDER granting 116 Motion/Stipulation for Leave to File. Signed by Judge David A. Ezra on 12/1/2006. (HJ, ) Additional attachment(s) added and modified on 12/4/2006 (DRM, ) to update image and reflect judge's signature accordingly. (Entered: 12/01/2006)
119 RESPONSE to 115 MOTION to Strike; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Replies due by 12/20/2006. (Attachments: # 1 Second part of Objections# 2 Third part of Opposition)(Kostic, Ljubisa) (Entered: 12/06/2006)
120 REPLY to Response to 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Attachments: # 1 Declaration Ljubisa Kostic in support of Reply# 2 Objections and Responses to Plaintiff's Separate Statement of Additional Material Facts)(Kostic, Ljubisa) (Entered: 12/14/2006)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 11 of 16

12/14/2006 12/14/2006
12/19/2006
01/03/2007 01/05/2007
01/12/2007 01/25/2007 01/26/2007 01/29/2007 01/29/2007

121 MOTION to Strike 107 Declaration,, EEOC's Evidence in Opposition to Summary Judgment by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Responses due by 1/1/2007. (Kostic, Ljubisa) (Entered: 12/14/2006)
122 REPLY to Response to 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Scolari's Objections and Responses to EEOC's Statement of Facts in Opposition to Summary Judgment (Attachments: # 1 (cont), part 2# 2 (cont), part 3# 3 (cont), part 4)(Kostic, Ljubisa) (Entered: 12/14/2006)
123 ORDER Setting Hearing on 121 MOTION to Strike 107 Declaration,, EEOC's Evidence in Opposition to Summary Judgment, 104 MOTION for Summary Judgment and motion to file brief in excess of 30 pages: Motion Hearing set for 1/5/2007 10:00 AM in Reno Courtroom 4 before David A. Ezra. Signed by Judge David A. Ezra on 12/18/06. (LG) (Entered: 12/19/2006)
124 ORDER granting 104 Motion to file brief in excess of 30 pages. Signed by Judge David A. Ezra on 1/3/07. (JW ) (Entered: 01/03/2007)
125 MINUTES OF PROCEEDINGS − Motion Hearing held on 1/5/2007 before Judge David A. Ezra. Crtrm Administrator: Bette Stewart and Brenda Gorbet; Pla Counsel: Gregory L. McClinton; Def Counsel: Ray J. Artiano, Ljubisa Kostic and Miranda Du; Court Reporter/FTR #: Kathryn French; Time of Hearing: 10:00 a.m. − 11:45 a.m. Arguments are presented on behalf of the defendants by Ray Artiano and on behalf of the plaintiff by Gregory McClinton. Plaintiff's MOTION for Summary Judgment 104 and MOTION to Strike 121 Declaration stand submitted. In the event the motion for summary judgment should be denied, this action would be referred to the U. S. Magistrate Judge to schedule pretrial disclosures. (no image attached) (BS, ) (Entered: 01/05/2007)
126 EX PARTE MOTION REQUEST TO FILE SUPPLEMENT by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 01/12/2007)
127 MOTION to Strike 126 EX PARTE MOTION REQUEST TO FILE SUPPLEMENT by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 2/12/2007. (McClinton, Gregory) (Entered: 01/25/2007)
128 RESPONSE to 127 MOTION to Strike 126 EX PARTE MOTION REQUEST TO FILE SUPPLEMENT; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Replies due by 2/9/2007. (Kostic, Ljubisa) (Entered: 01/26/2007)
129 ORDER DENYING 126 Ex Parte Motion to file supplement. Signed by Judge David A. Ezra on 1/29/07. See ord for spec. (DRM, ) (Entered: 01/29/2007)
130 ORDER DENYING 104 Scolari's Motion for Summary Judgment on the pattern−or−practice claim and for all but two of the individual claimants, namely Ms. French and Ms. Renfroe; DENYING Summary Judgment on Scolari's punitive damages claim; GRANTING Summary Judgment to dismiss Ms. French and Ms. Renfroe; GRANTING the EEOC's Motion for leave to amend complaint; and DENYING 115 EEOC's Motion to Strike evidence insofar as it pertains to the evidence

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 12 of 16

03/15/2007
03/15/2007
03/22/2007
03/23/2007 03/29/2007 03/29/2007 03/30/2007 04/09/2007 04/11/2007

in this motion. Signed by Judge David A. Ezra on 1/29/07. (AF) (Entered: 03/14/2007)
131 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge, on 3/15/2007. By Deputy Clerk: Amber Freeman. A Telephonic Status Conference is set for Thursday, 3/22/2007 at 9:00 a.m. in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid Jr. Counsel shall contact Amber Freeman, at (775) 686−5768, two days in advance of the hearing to confirm the telephone number(s) where counsel may be reached for the hearing. The courtroom deputy will initiate the conference call. The parties have been telephonically notified.(no image attached) (AF) (Entered: 03/15/2007)
132 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge, on 3/15/2007. By Deputy Clerk: Amber Freeman. The time for the Telephonic Status Conference set for Thursday, 3/22/2007 at 9:00 a.m. is changed to 9:30 a.m. in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid Jr. Counsel shall contact Amber Freeman, at (775) 686−5768, two days in advance of the hearing to confirm the telephone number(s) where counsel may be reached for the hearing. The courtroom deputy will initiate the conference call.(no image attached) (AF) (Entered: 03/15/2007)
133 MINUTES OF PROCEEDINGS − Telephonic Status Conference held on 3/22/2007 before Judge Robert A. McQuaid Jr.. Crtrm Administrator: Frank Justiliano; Pla Counsel: Gregory McClinton appeared telephonically.; Def Counsel: Ljubisa Kostic and Miranda Du appeared telephonically.; Court Reporter/FTR #: 9:32:04 − 9:35:00; Time of Hearing: 9:30 a.m.. The Court and counsel discussed the need to set pretrial dates. After a brief discussion, the parties purposed to submit a stipulated pretrial order. IT IS ORDERED that the parties are to submit a proposed stipulated pretrial order within 30 days.(no image attached) (FJ, ) (Entered: 03/22/2007)
134 MOTION for District Judge to Reconsider Order re 130 Order,,, Terminate Motions,, by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Responses due by 4/10/2007. (Kostic, Ljubisa) (Entered: 03/23/2007)
135 AMENDED COMPLAINT with Jury Demand SECOND AMENDED COMPLAINT against Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug, filed by U.S. Equal Employment Opportunity Commission.(Park, Anna) (Entered: 03/29/2007)
136 NOTICE by Plaintiff U.S. Equal Employment Opportunity Commission re 135 Amended Complaint. NOTICE OF FILING OF SECOND AMENDED COMPLAINT BY PLAINTIFF EEOC (Park, Anna) (Entered: 03/29/2007)
137 RESPONSE to 134 MOTION for District Judge to Reconsider Order re 130 Order,,, Terminate Motions,,; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 4/13/2007. (Viramontes, Victor) (Entered: 03/30/2007)
138 MOTION to Strike 135 Amended Complaint (SECOND) by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Responses due by 4/27/2007. (Kostic, Ljubisa) (Entered: 04/09/2007)
139 REPLY to Response to 134 MOTION for District Judge to Reconsider Order re 130 Order,,, Terminate Motions,,; filed by

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 13 of 16

04/17/2007 04/17/2007 05/18/2007 05/22/2007
05/22/2007 05/25/2007 05/29/2007 05/30/2007 05/31/2007
06/01/2007

Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 04/11/2007)
140 PROPOSED Pretrial Order by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 04/17/2007)
141 NOTICE of Corrected Image/Document re 140 Proposed Pretrial Order by Plaintiff U.S. Equal Employment Opportunity Commission. (Service of corrected image is attached). (McClinton, Gregory) (Entered: 04/17/2007)
142 MOTION for Temporary Restraining Order Preventing EEOC from Making Further Extrajudicial Statements Regarding the Merits of This Case by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Attachments: # 1 Declaration of Ljubisa Kostic in Support of Motion for Restraining Order)(Kostic, Ljubisa) (Entered: 05/18/2007)
143 AMENDED ORDER. Ref 130 Order denying 104 Mtn for Summary Jdgmt for Pattern−or−Practice Claim and for All But Two of Individual Claimants, denying Scolari's Mtn on the Punitive Damages Claim, granting summ jdgmt to dismiss Ms. French and Ms. Renfroe, granting EEOC's Mtn for Leave to Amend Complaint, and denying 115 P's Mtn to Strike Evidence. Signed by Judge David A. Ezra on 5/22/07. (JW ) (Entered: 05/23/2007)
144 ORDER denying 134 Motion for District Judge to Reconsider 130 Order. Signed by Judge David A. Ezra on 5/22/07. (JW ) (Entered: 05/23/2007)
145 RESPONSE to 142 MOTION for Temporary Restraining Order Preventing EEOC from Making Further Extrajudicial Statements Regarding the Merits of This Case; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Declaration Decl. with attached exhibits)(Viramontes, Victor) (Entered: 05/25/2007)
146 EX PARTE MOTION for Leave to Submit Amended Pretrial Schedule and for Discovery Conference by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Attachments: # 1 Declaration of Ray Artiano in Support of Ex Parte Motion)(Kostic, Ljubisa) (Entered: 05/29/2007)
147 CERTIFICATE OF SERVICE by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug re 146 EX PARTE MOTION for Leave to Submit Amended Pretrial Schedule and for Discovery Conference. (Kostic, Ljubisa) (Entered: 05/30/2007)
148 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge, on 5/31/2007. By Deputy Clerk: Frank Justiliano. RE: 146 EX PARTE MOTION for Leave to Submit Amended Pretrial Schedule and for Discovery Conference Motion Hearing set for 6/15/2007 09:00 AM in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid Jr..(no image attached) (FJ, ) (Entered: 05/31/2007)
149 REPLY to Response to 142 MOTION for Temporary Restraining Order Preventing EEOC from Making Further Extrajudicial Statements Regarding the Merits of This Case; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 06/01/2007)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 14 of 16

06/06/2007 06/07/2007
06/08/2007 06/11/2007 06/14/2007
06/14/2007 06/22/2007 06/22/2007 06/26/2007

150 MOTION for Certificate of Appealability for Immediate Appeal Pursuant to 28 USC s 1292(b) by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 06/06/2007)
151 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge, on 6/7/2007. By Deputy Clerk: Frank Justiliano. RE: 146 EX PARTE MOTION for Leave to Submit Amended Pretrial Schedule and for Discovery Conference. The Motion Hearing originally scheduled for 6/15/2007 is hereby VACATED and RESCHEDULED to 6/14/2007 09:00 AM in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid Jr..(no image attached) (FJ, ) (Entered: 06/07/2007)
152 RESPONSE to 146 EX PARTE MOTION for Leave to Submit Amended Pretrial Schedule and for Discovery Conference; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Viramontes, Victor) (Entered: 06/08/2007)
153 REPLY to Response to 146 EX PARTE MOTION for Leave to Submit Amended Pretrial Schedule and for Discovery Conference; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 06/11/2007)
154 MINUTES OF PROCEEDINGS − Motion Hearing held on 6/14/2007 before Judge Robert A. McQuaid Jr.. Crtrm Administrator: Frank Justiliano; Pla Counsel: Victor Viramontes appeared telephonically.; Def Counsel: Ray Artiano and Miranda Du present.; Court Reporter/FTR #: 9:04:35 − 9:16:22 a.m.; Time of Hearing: 9:00 a.m.. RE: 146 EX PARTE MOTION for Leave to Submit Amended Pretrial Schedule and for Discovery Conference filed by Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug, IT IS ORDERED that the Motion 146 is GRANTED. The defendant will submit its supplemental witness list by the close of business of June 15, 2007. The parties are allowed to and including 9/14/07 to conduct any additional discovery. The cap of witnesses is set at 15 as represent by Mr. Artiano. Ms. Du informed the Court that the case was never assigned to an ENE. The Court indicated that at this point it is too late for an ENE; however, the Court is willing to entertain a settlement conference. The parties are directed to contact the courtroom clerk if they desire to have a settlement conference. (no image attached) (FJ, ) (Entered: 06/14/2007)
155 MOTION to Set Aside Magistrate's Discovery Rulings by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 7/2/2007. (Attachments: # 1 Declaration # 2 Exhibit Exhibits to Declaration)(Viramontes, Victor) (Entered: 06/14/2007)
156 RESPONSE to 150 MOTION for Certificate of Appealability for Immediate Appeal Pursuant to 28 USC s 1292(b); filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Viramontes, Victor) (Entered: 06/22/2007)
157 ORDER granting in part and denying in part 142 Motion for TRO. Many specifics; see order for details. Signed by Judge David A. Ezra on 6/22/07. (Copies have been distributed pursuant to the NEF − JW ) (Entered: 06/25/2007)
158 MOTION to Appoint Special Master /Magistrate for Trial Pursuant to 42 U.S.C. section 2000e−5(f)(5) by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Responses due by 7/14/2007. (Kostic, Ljubisa)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 15 of 16

06/29/2007 07/02/2007 07/10/2007 07/16/2007 07/20/2007 07/25/2007 07/26/2007 07/30/2007
07/30/2007 08/30/2007 08/30/2007

(Entered: 06/26/2007)
159 RESPONSE to 155 MOTION to Set Aside Magistrate's Discovery Rulings; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. Replies due by 7/13/2007. (Attachments: # 1 Declaration of Ljubisa Kostic in support of Opposition)(Kostic, Ljubisa) (Entered: 06/29/2007)
160 ORDER DENYING Scolari's 150 Motion for Certification for Appeal. Signed by Judge David A. Ezra on 7/2/2007. See ord for spec. (Copies have been distributed pursuant to the NEF − DRM, ) (Entered: 07/03/2007)
161 REPLY to Response to 155 MOTION to Set Aside Magistrate's Discovery Rulings; filed by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Declaration # 2 Exhibit to Declaration)(Viramontes, Victor) (Entered: 07/10/2007)
162 RESPONSE to 158 MOTION to Appoint Special Master /Magistrate for Trial Pursuant to 42 U.S.C. section 2000e−5(f)(5) ; filed by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 7/30/2007. (McClinton, Gregory) (Entered: 07/16/2007)
163 STIPULATION Stipulation and [Proposed] Order for Mandatory Settlement Conference by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 07/20/2007)
164 ORDER ON STIPULATION re 163 : The Court hereby DENIES Stipulation and proposed order for mandatory settlement conference 163 . Signed by Judge David A. Ezra on 7/24/07. (Copies have been distributed pursuant to the NEF − BLG) (Entered: 07/25/2007)
165 STIPULATION Stipulation and [Proposed] Order for Mandatory Settlement Conference by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 07/26/2007)
166 ORDER ON STIPULATION FOR MANDATORY SETTLEMENT CONFERENCE re 165 Stipulation. (Discovery cutoff 9/14/07 and Trial Proposed 1/14/08) Settlement Conference shall be held on 10/18/07 @ 9:00 A.M. at Bruce R. Thompson United States Courthouse and Federal Building, 400 South Virginia Street, Reno, Nevada, in a courtroom to be assigned. IMAGE ATTACHED Signed by Judge David A. Ezra. (Copies have been distributed pursuant to the NEF − BLG) (Entered: 07/30/2007)
167 REPLY to Response to 158 MOTION to Appoint Special Master /Magistrate for Trial Pursuant to 42 U.S.C. section 2000e−5(f)(5) ; filed by Defendant Scolari Warehouse Markets, Inc, a Nv Corp, dba Scolari Food and Drug. (Kostic, Ljubisa) (Entered: 07/30/2007)
168 ORDER granting in part and denying in part 155 Motion to Set Aside (APPEAL). See order for spec. Signed by Judge David A. Ezra on 8/30/2007. (Copies have been distributed pursuant to the NEF − LK) (Entered: 08/30/2007)
169 ORDER DENYING D's 158 Motion to Assign Case to Magistrate for Trial. Signed by Judge David A. Ezra on 8/30/2007. See ord for spec. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 08/31/2007)

Case: 3:04-cv-229 As of: 03/12/2009 03:13 PM PDT 16 of 16

09/13/2007 09/25/2007
10/18/2007
02/07/2008 02/08/2008
08/28/2008 09/05/2008

170 ORDER DENYING 138 Motion to Strike 135 Amended Complaint. Signed by Judge Robert A. McQuaid Jr. on 9/13/2007. (Copies have been distributed pursuant to the NEF − KL) (Entered: 09/14/2007)
171 MINUTE ORDER IN CHAMBERS of the Honorable David A. Ezra, U.S. District Judge, on 9/25/2007. COURT ACTION: EO: Parties to submit Confidential Settlement Conference Statements to Judge Ezra by 10/9/07. Statements limited to twenty (20) pages. (Image Attached) (Copies have been distributed pursuant to the NEF − BLG) (Entered: 09/26/2007)
172 MINUTES OF PROCEEDINGS − Settlement Conference held on 10/18/2007 before Judge David A. Ezra. Crtrm Administrator: Jessica Mickelsen; Pla Counsel: Gergory L. McClinton, Anna Y. Park, Victor Viramontes; Def Counsel: Ray Artiano, Miranda Du; No settlement reached. (Copies have been distributed pursuant to the NEF − JC) (Entered: 10/18/2007)
173 SETTLEMENT AGREEMENT Notice of Settlement and Joint Stipulation to Continue Filing of Pretrial Order by Plaintiff U.S. Equal Employment Opportunity Commission. (McClinton, Gregory) (Entered: 02/07/2008)
174 ORDER re 173 Settlement Agreement filed by U.S. Equal Employment Opportunity Commission. The parties have agreed to a monetary settlement and expect to file the Consent Decree the week of March 10, 2008. Signed by David A. Ezra on 2/8/2008. (Copies have been distributed pursuant to the NEF − KL) (Entered: 02/08/2008)
175 SETTLEMENT AGREEMENT [Proposed] Consent Decree; Order by Plaintiff U.S. Equal Employment Opportunity Commission. (Park, Anna) (Entered: 08/28/2008)
176 CONSENT DECREE, ORDER re 175 Proposed Cosent Decree : The provisions of the foregoing Cosent Decree are hereby approved and compliance with all provisions thereof is HEREBY ORDERED. The Court shall retain jurisdiction as set forth in this Decree. Signed by David A. Ezra on 9/5/2008. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 09/08/2008)