Case 3:02-cv-10109-REL-RAW Document 1 Filed 09/24/2002 Page 1 of 5

UNITED STATES DISTRlCT COURT SOUTHERN DISTRlCT OF IOWA EASTERN DIVISION

0,',\;,·' ")(,f., I:) 'OV/A

'-. "

;' I, • ;

ZOOl SEe 24 A q: I

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v,
THE DIAL CORPORATION,
Defendant.

, L~ "

Ili ','! )

) )

~. 3 0 2 CV 10 1 0 9

)

Civil Action No. _ _ _ _ _ __

)

)

) COMPLAINT

)

(Jury Trial Demand)

)

)

NATURE OF THE ACTION

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

Rights Act of 1991 to correct unlawful employment practices on the basis of sex, and to provide

appropriate relief to Paula Liles and a class of female applicants for employment, who were

adversely affected by such practices. As stated with greater particularity in Paragraph 7 below, the

plaintiff Equal Employment Opportunity Commission alleges that the defendant, The Dial

Corporation, discriminated against Liles and a class offemale applicants for employment by refusing

to hire them for production positions based on their sex and based on a pre-employment test which

has a disparate impact against females.

JURISDICTION AND VENUE

I. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451,1331,1337,1343,

\

and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) ofTitle VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII"), and

Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a.

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

Case 3:02-cv-10109-REL-RAW Document 1 Filed 09/24/2002 Page 2 of 5

jurisdiction ofthe United States District Court for the Southern District oflowa.

PARTIES

3. The plaintiff, the Equal Employment Opportunity Commission ("EEOC"), is the

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

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

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

4. At all relevant times, the defendant, The Dial Corporation ("Dial"), has continuously

been a Delaware corporation doing business in the State ofIowa and the City of Fort Madison, and

has continuously had at least IS employees.

5. At all relevant times, Dial has continuously been an employer engaged in an industry

affecting commerce within the meaning of Sections 701(b), (g), and (h) of Title VII, 42 U.s.C. §§

2000e(b), (g), and (h).

STATEMENT OF CLAIMS

6. More than 30 days prior to the institution ofthis lawsuit, Paula Liles filed a charge

with the EEOC alleging violations of Title VII by Dial. All conditions precedent to the institution

ofthis lawsuit have been fulfilled.

7.

Since at least January 1, 2000, to the present, Dial has engaged in unlawful

employment practices at its Fort Madison, Iowa facility in violation of Sections 703(a)(1) of Title

VII, 42 U.S.c. §§ 2000e-2(a)(I), as follows:

(a) Dial has refused employment to Liles and to other female applicants based

on a post-offer pre-employment work tolerance test, which test has a significant disparate

impact against women, which has not been shown to be job related for the position of

production worker, nor consistent with business necessity;

2

Case 3:02-cv-10109-REL-RAW Document 1 Filed 09/24/2002 Page 3 of 5
(b) Dial has intentionally discriminated against Liles and other female applicants by refusing to hire them because oftheir sex.
8. The effect ofthe practices complained of in Paragraph 7 above has been to deprive Liles, and a class of female applicants for production positions at Dial during the relevant time period, of equal employment opportunities and otherwise adversely affect their status as applicants for employment because of their sex.
9. The unlawful employment practices complained of in Paragraphs 7(b) above were, and are, intentional.
10. The unlawful employment practices complained of in Paragraphs 7(b) above were done by Dial with malice or with reckless indifference to the federally protected rights of Liles and a class of female applicants for production positions at Dial during the relevant time period.
PRAYER FOR RELIEF Wherefore, the EEOC respectfully requests that this Court: A. Grant a permanent injunction enjoining Dial and its officers, successors, and assigns, and all persons in active concert or participation with them, from engaging in discrimination in hiring based on sex. B. Order Dial to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices. C. Enjoin Dial from using any pre-employment test which has a disparate impact against female applicants, unless it demonstrates that the test is job related for the position in question and consistent with business necessity. D. Order Dial to make whole Liles and other female applicants who were rejected by
3

Case 3:02-cv-10109-REL-RAW Document 1 Filed 09/24/2002 Page 4 of 5
Dial for production positions based on the use of a pre-employment test which had a disparate impact against females, by providing appropriate back pay with pre-judgment interest, in amounts to be determined at trial, and other affirmative reliefnecessary to eradicate the effects ofits unlawful employment practices, including (but not limited to) rightful place hiring.
E. Order Dial to make whole Liles and the class of female applicants by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in Paragraph 7(b) above, includingjob search expenses and medical expenses not covered by their employer-sponsored employee benefit plans, in amounts to be determined at trial.
E. Order Dial to make whole Liles and the class of female applicants, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in Paragraph 7(b) above, including emotional pain, suffering, loss of enjoyment of life, and humiliation caused by Dial's discriminatory treatment ofthem, in amounts to be determined at trial.
F. Order Dial to pay Liles and the classes offemale applicants punitive damages for its malicious and reckless conduct described in Paragraph 7(b) above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the EEOC its costs of this action. JURY TRIAL DEMAND
The EEOC requests a jury trial on all questions offact raised by its complaint. Gwendolyn Young Reams Associate General Counsel
4

Case 3:02-cv-10109-REL-RAW Document 1 Filed 09/24/2002 Page 5 of 5

Dated: ~~( ~002

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 "L" Street, N.W. Washington, D.C. 20507

Je P. Kamp

/

egional Attorney

/
!

RosemaryFo Supervisory

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Milwaukee District Office 310 West Wisconsin Avenue - Suite 800 Milwaukee, WI 53203-2292 (414) 297-4188

5

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

U.S. DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FILED

EQUAL EMPLOYMENT, OPPORTUNITY COMMISSION,
Plaintiff, v. TXI OPERATIONS, L.P.,
Defendant.

§

CLEJuc. U.s. DJSnucr

§

-

. .~-

§

h ,• . ,

§

§ CASE NO.: 3:03-CV-1868-P

§

§

§

§

MEMORANDUM OPINION AND ORDER

Now before the Court is Defendant TXI Operations, L.P.'s ("TXI" or "Defendant")

Motion for Summary Judgment ("Def.'s Br."), filed September 7, 2004. Plaintiff Equal

Employment Opportunity Commission ("EEOC") filed its Response ("PI. 's Resp.") on October

13, 2004, and Defendant filed its Reply ("Def. 's Reply") on October 27, 2004. After considering

the parties' arguments and briefing, and the applicable law, the Court GRANTS Defendant's

Motion for Summary Judgment.

I. Background and Procedural History

On August 19,2003, "Plaintiff Equal Employment Opportunity Commission ("EEOC"

[or "Plaintiff']) brought this lawsuit on behalf of Charging Party Julie Fundling (,Fundling')

against [TXI] alleging (1) Equal Pay Act and (2) Title VII sex discrimination relating to her

salary." Def.'s Mot. for Summ. J. ("Def.'s Mot.") at p. 1. Fundling asserts "her salary was

discriminatory as compared to that ofWes Schlenker (,Schlenker'), a male employee. Fundling

and Schlenker were both attorneys in TXl's legal department reporting to Robert Moore

("Moore"), TXl's Vice President, General Counsel and Secretary."
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 1

In November 1991, Moore hired Fundling to work in Defendant's legal department (the
"legal department,,).l See Fundling dep. at p. 37,1. 25 to p. 38, 1. 19 (Def. 's App. at pp. 146-47);
Moore dec1. at ~ 2 (Def.'s App. at p. 103); Def.'s Offer of Employment (PI.'s App. at p. 10).
Fundling began with a starting annual salary of $57, 500 as a Grade 13 employee, see Moore
dec1. at ~ 9 (Def. 's App. at p. 104), and reported directly to Moore in her new position. Def. 's
Offer of Employment (PI.'s App. at p. 10). At the time of her hire, only Moore and Fundling
worked in the legal department. Fundling dep. at p. 38, 11. 4-8 (Def. 's App. at p. 147). Previous
to her employment with Defendant, Fundling worked as an associate with the law firm of Johnson & Gibbs, P.C. from approximately April 1990 to October 1991.2 Moore dec1. Ex. 2
(Def.'s App. at pp. 121-24).
At the time of her hire, TXI assigned Fundling a substantial amount of real estate matters
in addition to her other duties. See Moore dec1. at ~~ 4, 11-12 (Def. 's App. at pp. 103, 105).
Unfortunately, Fundling had no experience in the area of real estate law. See Fundling Resume
(Pl.'s App. at pp. 5-6). Indeed, from approximately 1992 to 1993, Fundling received three
separate complaints regarding her work on real estate matters. Bone dep. at p. 27, 1. 3 to p. 31, 1.
2 (Def. 's App. at pp. 76-77). After the third complaint, Barry M. Bone ("Bone"), TXI's Real
Estate Vice President, "informed [Moore] that the Real Estate Department would not use
1 Apparently, Fundling married sometime between November 1991 and 1994. Compare Moore decI. Ex. 2 ("Employment Application") (Def. 's App. at pp. 121-24) (showing Fundling's last name to be Henderson and listing her emergency contact as "Mr. Scott Fundling," her "boyfriend") with August 12, 1994, Performance Evaluation (PI.'s App. at pp. 15-23) (showing Fundling's last name to be Fundling); see also Moore dep. at p. 63, ll. 8-11 (PI.'s App. at p. 89). 2 "While at Johnson & Gibbs, [] Fundling practiced general corporate law, and performed work dealing with bankruptcy, securities, contracts and filing." PI.'s Resp. at p. 2 (citing PI.'s App. at pp. 1-4 ("Fundling's TXI Employment Applicatoin")). 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 2

Fundling for any oftheir legal work going forward." Moore decI. at ~ 14 (Def. 's App. at p. 105); Bone dep. at p. 31,11.3-12 (Def.'s App. at p. 77). As a result, Moore "authorized the Real Estate Department to take all of their legal work, with the exception of litigation relating to real estate matters and certain administrative matters relating to corporate governance and board resolutions, to outside counsel to handle." Moore decI. at ~ 14 (Def.'s App. at p. 105).
Fundling received her first performance evaluation from Moore on August 12, 1994. (PI. 's App. at pp. 15-23). Therein, Moore omitted any reference to Fundling's real estate difficulites. On the contrary, Moore noted that Fundling "[q]uickly gained the confidence of [TXI's] managers because of her willingness to work hard and her cooperative attitude," and further that "[c]onsidering her lack of experience she has performed very well and needs minimum supervision."3 Id. at 2. (App. at p. 22). Following "Fundling's August 12, 1994[,] performance evaluation, she received a salary increase to $65,000 per year, an increase of 13%, effective September 16, 1994." PI.'s Resp. at p.6 (citing PI.'s App. at 24-25). Fundling then "received her second formal performance review from [] Moore on June 15, 1999." Id. (citing PI. 's App. at 26-29). This second review contains no comments from Moore. !d. Thereafter, "[e]ffective June 14, 1999, [] Fundling received a merit salary increase to $74.796.00 per year, an increase of 15 percent." Id. (citing PI. 's App. at p. 30).
"From December 2, 1991 until September 7, 1999, [] Moore and [] Fundling were the only full-time in-house attorneys employed by the Legal Department of TXI." PI. 's Resp. at p. 10 (citing Fundling decI. at ~ 22 (PI. 's App. at p. 132)). However, "[i]n 1998, TXI dramatically
3 Moore also stated that "[d]ue to her willingness to accomodate [sic] everyone who requested her service she doesn't prioritize well. (neither do I by the way)," and that "[Fundling] is intelligent and picks up quickly what the company's requirements are in the transactions she handles. She needs to force herself to take a [second] or third look at her documents to see if they can be improved despite the time pressure to get them out." 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 3

increased its operations with the collateral effect of significantly increasing the legal department's work load." Moore decI. at ~ 20 (Def. 's App. at p. 107). Subsequently, Moore began planning for the addition of another attorney to the legal department. Notably, during "Fundling's performance evaluation in June 1999, [] Moore and [] Fundling discussed the possibility of [Moore] hiring another in-house attorney. At that time, [] Moore told [] Fundling that depending on how much the new attorney would be paid, he would adjust her salary accordingly.,,4 PI. 's Resp. at p. 11 (citing PI. 's App. at p. 31); see also Fundling dep. at p. 86,1. 9 to p. 88,1. 11 (Def.'s App. at p. 159).
Thereafter, TXI apparently began preparations for the additional hire. "Just as [he] did before hiring Fundling, [Moore] went to the Vice President of Human Resources ... and asked that the compensation group conduct a market survey to determine a competitive salary for the new attorney position given the experience level [he] sought." Moore dec1. at ~ 25 (Def.' s App. at p. 7). After that, in April 1999, "a Job Description for a Grade 14 Attorney was drafted in preparation for Defendant's anticipated hire of a new attorney." PI.' s Resp. at p. 11; see also Moore dep. at p. 114, 11. 1-11 (PI. 's App. at p. 95). Moore "decided to offer the new attorney a starting salary of approximately $100,000 annually ...." Additionally, in its ad listing, TXI stated that it sought "a corporate attorney for a diverse in-house practice," with a background of "5-8 years legal experience.,,5 (PI. 's App. at p. 32). Specifically, the required background
4 "Moore also informed the Human Resources Department that, depending on what it took to bring in the new attorney and after observing the performance of the new attorney and as compared to Fundling, Fundling's salary would be adjusted if the salary gap was too large based on the comparative abilities of the two attorneys." Def.'s Mot. at pp. 7-8. 5 TXI's ad listing omitted any references to salary amount or grade level. (See Pl.'s App. at p. 32). 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 4

included "experience in corporate transactions, general contracts and real estate, financing and merger, acquisition and securities." Although several individuals applied for the position, Moore "screened them down from 30 to about 12 ...." Moore dep. at p. 117,11. 14-24 (Def. 's App. at p. 8). After further interview rounds with various executives, TXI reached a consensus decision to choose Schlenker. Id. at p. 118, 1. 2 to p. 122, 1. 17 (Def. 's App. at pp. 9-10).
Moore extended the position to Schlenker at an initial salary of approximately $100,000. Moore decI. at ~ 32 (Def. 's App. at p. 110). While Schlenker rejected this "starting offer," Moore adjusted the salary (as well as additional benefits) to an amount more suitable to Schlenker. Id. (Def.'s App. at pp. 110-11); see also Schlenker dep. at p. 68, 1. 16 to p. 76, 1. 25; Moore dep. at p. 125, 11. 2-23 (Def.'s App. at pp. 28-30; 32). Eventually, the parties reached agreement, and "[o]n August 20, 1999, [] Moore offered [] Schlenker the job as an attorney with an annual salary of$115,000.00." PI.'s Resp. at p. 12 (citing PI.'s App. at p. 34( "Schlenker Offer of Employment")). Schlenker then called Moore and accepted that offer. Schlenker dep. at p. 79, 11. 11-21 (Def.'s App. at p. 31). At the time TXI hired Schlenker, Fundling earned an annual salary of $74,796.00. See Moore decI. at ~~ 26,32,45 (Def.'s App. at pp. 109, 110-11, 114).
After TXI hired Schlenker, he received projects directly from Moore. Cj Moore decI. at
~ 34 (Def.'s App. at p. 111) Both parties agree that Moore transferred some of Fundling's responsibilities to Moore. See Fundling decI. at ~~ 27-28 (PI.'s App. at p. 133); Moore decI. at ~~ 36-37 (Def. 's App. at pp. 111-12). The reasons why Schlenker received certain projects-including work originally assigned to Fundling- remains a disputed issue between the parties. Plaintiff charges Moore sexually discriminated against Fundling, see, e.g., PI. 's App. at
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 5

36-37, while Defendant maintains it distributed assignments according to experience, and redistributed assignments to familiarize Schlenker with TXI. See Moore dep. at p. 126,1. 16 to p. 127,1. 12; Moore dec1. at ~ 37 (Def.'s App. at pp. 11; 112). Regardless, on October 1, 2001, Fundling filed a charge of sex discrimination with the Texas Commission on Human Rights and the EEOC "alleging unequal pay claims under both the [EPA] and Title VII". PI. 's Resp. at p. 14 (citing PI.'s App. at p. 36-37). Afterward, "[o]n October 15,2001, [] Fundling received a merit salary increase to $95,000.00 per year, an increase of27 percent." Id. (citing PI.'s App. at p.38).
In January 2002, Moore conducted Schlenker's first performance review, Moore decl. at ~ 47 (Def. ' s App. at p. 115), and "[0]n January 21, 2002, [] Schlenker received a merit salary increase to $124,000 per year, an increase of7.8 percent." PI.'s Resp. at p. 14 (citing PI.'s App. at p. 45).
Later that year, "[i]n October 2002, the Board of Directors for Texas Industries, Inc., the publicly traded parent corporation of [TXI], voted Schlenker to be the Assistant Secretary for [TXI]." Moore dec1. at ~ 51 (Def.'s App. at p. 116). Schlenker, however, did not receive notice of his promotion until approximately eight months later in May 2003. See Moore dep. at p. 133, 11.8-14; p. 134,1. 24 to p. 136,1. 21 (PI.'s App. at pp. 97; 98-100). "As a result of the creation of [their] job descriptions, [] Fundling now reported to [] Schlenker, as the Assistant General Counsel, as well as to [] Moore, as the General CounseL" PI.'s Resp. at p. 15 (citing PI.'s App. at pp. 48-50).
In May 2003, Moore conducted Fundling's third formal performance evaluation. Therein, Moore referenced incidents relating back not only to Fundling's previous evaluation,
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 6

but to events occurring at her employment inception. (See PI.'s App. at pp. 51-57). Shortly thereafter, "[o]n May 22, 2003, [] Fundling received a merit salary increase to $100,000 per year, an increase of 5 percent." PI.'s Resp. at p. 15 (citing PI.'s App. at p. 58). Fundling did not receive any additional formal performance evaluations or salary increases subsequent to this date.
"On May 29,2003, [] Moore conducted a formal performance evaluation for [] Schlenker." PI.'s Resp. at p. 15; see also PI.'s App. at pp. 59-64. Therein, Moore states that he has not "clearly delineated [Schlenker's] role from [Fundling's]." Subsequently, "[fJollowing his promotion to Senior Attorney/Assistant General Counsel, [] Schlenker received a salary increase to $138,000.00 per year, an increase of 11.3 percent." PI.'s Resp. at p. 15 (citing PI.'s App. at pp. 45, 65).
Finally, on August 19,2003, "[t]he EEOC filed this lawsuit on Fundling's behalf." See Def.'s Mot. at p. 11. Six months later, "[o]n February 20, 2004, Fundling submitted her resignation to TXI." Id. II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Themovingparty bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. !d. However, all evidence and the reasonable inferences to be drawn therefrom
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 7

must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conc1usory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat 'I Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the non-movant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. MBank Dallas, 843 F.2d
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 8

172, 173-174 (5th Cir. 1988); Nordar Holdings, Inc. v. W Sec. (USA) Ltd., No. 3:96-CV-0427H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Furthermore, the Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455,458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
Finally, the Fifth Circuit admonishes that "[w]hen dealing with employment discrimination cases, which usually necessarily involve examining motive and intent, ... granting of summary judgment is especially questionable. In these cases 'summary judgment should be used cautiously and all procedural requirements given strict adherence .... ,,, Hayden v. First Nat 'I Bank, 595 F.2d 994,997 (5th Cir. 1979) (quoting Lavin v. Illinois High School Ass 'n, 527 F.2d 58, 61 (7th Cir. 1975)); cf Thornbrough v. Columbus & G. R. Co., 760 F.2d 633,639 (5th Cir. 1985) (citing Mendez, Presumptions a/Discriminatory Motive in Title VII Disparate Treatment Cases, 32 Stan. L. Rev. 1129 (1980) ("Unless the employer is a latter-day George Washington, employment discrimination is as difficult to prove as who chopped down the cherry tree."). III. Equal Pay Act
Under the Equal Pay Act ("EPA"), an employer is prohibited from discriminating "between employees on the basis of sex ... for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." 28 U.S.C. § 206(d)(I) (1978). To establish aprima/acie case under the EPA, a
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 9

plaintiff must demonstrate that (1) her employer is subject to the EPA; (2) she performed work in a position requiring equal skill, effort and responsibility under similar working conditions; and (3) she was paid less than members of the opposite sex providing the basis for comparison.6 Jones v. Flagship Int'!, 793 F.2d 714,722-23 (5th Cir. 1986); Williams v. Tex. Dep 't ofTrans. , 1997 WL 53142, at *5 (N.D. Tex. 1997). Plaintiff need not show that her job duties were identical to those of higher paid male employees, only that the "skill, effort and responsibility" required in the performance of the compared jobs are "substantially equal." Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th Cir. 1987); Williams, 1997 WL 53142, at *6.7
When a plaintiff succeeds in establishing her prima facie case, the burdens of production and persuasion shift to the employer to demonstrate one of the four affirmative defenses specified under the EPA. Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983).8 In other words, the burden shifts to the employer once a plaintiff shows she was paid less than a male who was performing substantially the same job. Id. The EPA provides exceptions, sometimes referred to as affirmative defenses, for disparate wage payments made pursuant to: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based upon any factor other than sex. Peters, 818 F.2d at 1153 (citing 29 U.S.C. § 206(d)(I».
6 See Hodgson v. Am. Bank o/Commerce, 447 F.2d 416, 420 (5th Cir. 1971) ("Any wage differential between the sexes, no matter how small and insignificant, is sufficient under the statutory prohibition.") (emphasis added). 7 Unlike a claim arising under Title VII, a plaintiff in an EPA case need not demonstrate discriminatory intent. [d. 8 Unlike a claim arising under Title VII, the plaintiff does not retain the ultimate burden of persuasion in an Equal Pay Act case. In an Equal Pay Act case, the employer, not the employee, must prove the actual wage disparity is not sex linked. Plemer, 713 F.2d at 1136. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 10

a. Prima Facie Case As Defendant concedes it is subject to the EPA, and that Fundling "was paid at a lower rate than Schlenker during her employment," see Def. 's Br. at p. 3, the core issue is whether Fundling "performed work in a position requiring equal skill, effort and responsibility under similar working conditions." Jones, 793 F.2d at 722. Although "[w]hat constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined ... [t]he terms constitute separate tests, each of which must be met in order for the equal pay standard to apply." 29 C.F.R. § 1620. 14(a) (2004). Moreover, "[i]t should be kept in mind that 'equal' does not mean 'identical.' Insubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance ofjobs will not render the equal pay standard inapplicable." Id. Finally, "it is the overall job, not individual segments, that must form the basis of comparison. Thus, even if a portion of [male and female] jobs overlapped, this would not be enough to prove and [sic] EPA violation." Kern v. GE Capital Info. Tech. Solutions, 2003 WL 22433817 at *5 (N.D. Tex. Feb. 19,2003). At the outset, Defendant concedes that "[f1rom a global perspective, Fundling and Schlenker's jobs were similar. Both were attorneys in TXI's legal department reporting to the General Counsel," and "[m]any of the types of work handles by Fundling and Schlenker overlapped." Def. 's Br. at p. 4. Nonetheless, Defendant argues further that "this Court need only look at the realities of the work performed by Fundling and Schlenker" in determining that the two were not performing equal work requiring equal skill, effort and responsibility under similar working conditions. Def. 's Reply at p. 3. Defendant then details a laundry list of assignments Schlenker performed, including a large lease transaction, a technical patent
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 11

infringement lawsuit, and a hydrocarbon contamination project. See Def. 's Br. at pp. 5-6; see also Allen dep. at p. 30, 1. 11 to p. 31,1. 21; Moore decl. at ~ 38; ~ 39 (Def.'s App at pp. 57; 112; 112-13). Defendant ends this argument announcing that because "Schlenker shouldered more responsibility as he handled the more complex legal matters," Fundling cannot prove that "she and Schlenker performed 'equal work' in jobs requiring equal skill, effort and responsibility." Def.'s Br. at p. 7.
Although Plaintiff also details a laundry list of assignments Fundling performed, it begins its argument by stating that "[i]n determining the equality of the requirements of the job held by Fundling and Schlenker, the Court need look no further than their job descriptions, ... [which] demonstrate that the two positions are substantively identical." PI. 's Resp. at p. 22. Admittedly, in some cases, job descriptions may be a factor in EPA claims. See Brennan v. OwensboroDaviess County Hospital, 523 F.2d 1013, 1017 (6th Cir. 1975) [hereinafter Owensboro], cert. denied 425 U.S. 973 (1976).
Althoughjob descriptions should not be accorded as much weight as that given to the duties actually performed by employees in determining whether jobs are substantially equal ... they may be helpful, particularly where the description of the jobs to be compared are similar and were written by the very employer who claims that the wage differentials are not based on an impermissible criterion. Id. (emphasis added). However, Owensboro recognized also that the duties actually performed must be accorded more weight than job descriptions. Id. Indeed, the regulations find job content controlling. See C.F.R. § 1620. 13(e) (2004). "Application of the equal pay standard is not dependent on job classifications or titles but depends rather on actual job requirements and performance." Id. (emphasis added).
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 12

In this case, Plaintiff accords too much weight to the job descriptions for two reasons. First, the Court finds the job descriptions list responsibilities in very general terms. For instance, both descriptions include the responsibility of "[preparing] and [executing] legal documents by analyzing, drafting, negotiating, reviewing, and filing these documents." PI. 's App. at pp. 33, 50. Other general responsibilities include "[studying] proposed and existing legislation, [reviewing] business practices and policies, and [advising] management of potential risks." Id. Such descriptions provide merely an overview of legal projects, rather than the minutiae of daily activity. As such, their utility with respect to equality ofjob requirements is minimized.
Second, the job descriptions do contain some differences. In fact, each carries responsibilities the other does not. To wit, only Fundling's responsibilities include the preparation of SEC forms. PI. 's App. at p. 50. In contrast, while both descriptions include the responsibility of "[carrying] out broad legal assignments that are complex and difficult in nature," Schlenker may do so under "minimal supervision," while Fundling may do so under "appropriate supervision." PI. 's App. at pp. 33, 50. Therefore, in this case, while the job descriptions furnish helpful background information, they do not provide the necessary details this Court needs to make a proper comparison.
In sum, the Court finds it must address actual job performance to determine whether Schlenker and Fundling performed substantially similar work. In this regard, Plaintiff details a variety of assignments Fundling performed, including restructuring companies into partnerships, overseeing environmental compliance, enabling cash management bank agreements and executing equipment leases. See Fundling dec1. at ~ 6; 8; Allen dep. at pp. 28, 11. 10-19; p. 31,1.
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 13

22 to p. 32, 1. 7; Fundling decl. at ~ 12 (PI. 's App. at p. 7; Def. 's App. at pp. 56; 57; PI. 's App. at p. 130).
Defendant counters Plaintiffs view of Fundling by highlighting her admission that Schlenker handled more complex matters. See Def. 's Repl. at p. 1-2 (citing Fundling dep. at p. 172 (Def. 's App. at p. 174)). Defendant argues that such an admission combined with Schlenker's experience proves that Schlenker's position required greater skill and effort. However, at this point, the comparison is between the actual performance, which mayor may not include experience and skill. As the regulation instructs, "[p]ossession of a skill not needed to meet the requirements of the job cannot be considered in making a determination regarding equality of skill. The efficiency of the employee's performance in the job is not in itself an appropriate factor to consider in evaluating skill." C.F.R. § 1620. 13(e) (2004).
At this point, the Court cannot state affirmatively that as a matter of law, the skill and effort of Schlenker and Fundling were substantially dissimilar. While Defendant offers transactions and situations to differentiate Schlenker's position, it does not provide competent summary judgment evidence as to why and how such items are substantially dissimilar from those Fundling performed. While some differences existed, the record does not demonstrate the necessary substantiality with respect to these prongs.9
Nevertheless, the Court does find that substantial differences injob responsibility existed between Schlenker and Fundling. "Responsibility is concerned with the degree of accountability
9 Moreover, Moore's own admission draws some doubt on such a finding. See Moore dep. at p. 148,11. 11-14 ("[Fundling] kept saying that she wanted to know the difference between what she was doing and Wes was doing. And I said a lot of the times there's no difference in what you're doing. But I had hired Wes to be able to handle stuff that I handled.") (Def.'s App. at p. 13). 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 14

required in the performance of the job, with emphasis on the importance of the job obligation."
29 C.F.R. § 1620.17(a) (2004). In this situation, there can be no dispute Schlenker exercised
more responsibility than Fundling. No statement illustrates this more than Fundling's own admission that Schlenker handled the more complex matters at TXI. See Fundling dep. at p. 172, 11. 12-20 (Def. 's App. at p. 174). Such an admission goes far beyond Schlenker's listed
responsibilities; rather, it reveals what actually occurred, and eliminates any need for speculation. 10
Furthermore, the Court finds additional evidence of Schlenker's elevated level of responsibility. For instance, Defendant states that "[b]ecause of [Schlenker's] prior experience
as the General Counsel of a publicly traded company, Moore also designated Schlenker as
Acting General Counsel during [Moore's] two-month leave of absence for knee surgery," and
that "Fundling was never designated as Acting General Counsel and she never had the
responsibility to act as the General Counsel on TXI's behalf." Def. 's Resp. at p. 6 (citing Moore
dec!. at,-r,-r 41,43 (Def.'s App. at pp. 113, 113-14)). Indeed, prior to Schlenker's employment,
Moore vacationed for shorter periods, and scheduled his "vacation at times when [he] knew the
Company was not involved in complex transactions." Moore dec!. at,-r 42 (Def.'s App. at p.
113). Moreover, during such times, "if complex general counsel level questions arose while
[Moore] was on vacation and if [he] could not be reached, TXI's Vice Presidents had full
10 The Court finds Plaintiffs reliance on Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974) [hereinafter Prince William], inexpedient. While it may be true that "[h]igher pay is not related to extra duties when ... [q]ualified female employees are not given the opportunity to do the extra work," id. at 286 (citing Schultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1969)), the Court deems such language inapplicable to this case. Aside from conclusory allegations, Plaintiff fails to proffer competent summary judgment type evidence establishing that TXI or Moore excluded Fundling from opportunities. Rather, the evidence establishes that Moore delegated assigmnents based on experience and skill. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 15

authority to contact designated outside counsel." Id. at ~ 43 (Def.'s App. at pp. 113-14). Whatever Fundling's duties included during such times, they were a far cry from the full responsibility and authority Schlenker exercised "on TXI's behalf that [was] associated with the General Counsel position." Cf Moore decl. at ~ 41 (Def.'s App. at p. 113). As such, the Court finds that the relative responsibility that Schlenker and Fundling exercised cannot be deemed substantially similar. Hence, as the evidence demonstrates a lack of this factor, Plaintiff cannot establish aprima/acie case under the EPA. See Christopher v. State a/Iowa, 559 F.2d 1135, 1138 n.14 (8th Cir. 1977) ("The requirements of equal sill, equal effort and equal responsibility are considered to constitute three separate tests, each of which must be met in order for the equal pay standards to apply.") (internal citations omitted).
However, even were the Court to find that Fundling performed work in a position requiring equal skill, effort and responsibility under similar working conditions, Defendant still proffers a valid exemption.
b. Exemptions At the outset, it must be remembered that "[a]n exemption from the coverage of the Act must be narrowly construed." Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047 (1973) (internal citations omitted); see also Corning Glass Works v. Brennan, 417 U.S. 188,207 (1974) ("The [EPA] is broadly remedial and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve."). Nevertheless, courts recognize valid exemptions. Specifically, with regard to factors "other than sex," several determinants pass judicial muster, including "different job levels, different skill levels, previous training, and
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 16

experience." Pouncy v. Prudential Ins. Co., 668 F.2d 795,802-03 (5th Cir. 1982). Courts also consider other factors such as "prior salary history, performance, and competitors' offers," finding these factors to be "legitimate, nondiscriminatory reasons for paying [employees] different amounts." Lyons v. Burlington Coat Factory Warehouse, 2004 U.S. Dist. LEXIS 3575,
at *16-17.
Defendants proffer three determinants for the differences in pay: (1) Schlenker's experience, particularly his securities and general counsel experience; (2) Schlenker's performance of more complex legal work; and (3) TXI's dynamic legal situation. In tum, each explanation supports the other listed reasons. Nevertheless, each reason is an independent rationale which employers may consider when making salary decisions. Additionally, the record corroborates that TXI established Schlenker's grade and salary before it made the hiring decision. As such, while this may not be a determinant in and of itself, it buttresses the validity of the previous three rationales. Finally, Plaintiff presents no evidence that Defendant utilized such reasons as pretexts for determination.
1. Specialized Experience As Defendant notes, experience qualifies as a valid "other than sex" factor for pay differentials. Clearly, Schlenker brought with him a wide variety of experience that Fundling did not possess. Although not exhaustive, Schlenker's background included real estate and financing experience, see Schlenker dep. at p. 49, 1. 18 to p. 50, 1. 16; Moore dec1. at 'Il31 (Def. 's App. at pp. 24; 110); see also PI. 's App. at p. 74-75 ("Schlenker Resume"), involvement in working with a publicly traded company, see, e.g., Moore dec1. at 'Il31 (Def. 's App. at p. 110); Schlenker Resume, implementation of a patent program, see Schlenker dep. at p. 43, 1. 3 to p. 44,
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 17

1. 20 (Def.'s App. at p. 23), and significant securities experience, including specific expertise with the 1933 Securities Act. See Schlenker Resume; Moore dec1. at ~ 31 (Def.'s App. at p. 110); cf Schlenker dep. at p. 43, 1. 3 to p. 44, 1. 20 (Def.'s App. at p. 23). The latter experience is most significant as Fundling concedes that before the hiring decision, Moore acknowledged openly he sought an attorney with more securities experience in this area. See Fundling dep. at p. 209, 1. 22 to p. 212, 1. 16 (Def.'s App. at pp. 183-84). Moreover, Schlenker utilized much of his expertise and experience shortly after being hired. See, e.g., Moore dec1. at ~ 38 (Def.'s App. at p. 112) ("[Moore] assigned Schlenker a highly technical patent infringement lawsuit with cross claims and third party claims contesting the patent ... With little or no supervision, Schlenker took the lead and ultimately negotiated a very favorable result for TXI.").
Additionally, Schlenker brought with him approximately five years experience as general counsel of a publicly traded company. See Schlenker Resume. Again, the Court finds great significance in this experience as Moore states specifically he "sought an attorney who had General Counsel experience ...." Moore dec1. at ~ 24 (Def.'s App. at p. 108).
Finally, as Plaintiff concedes that Schlenker encompassed experience and skill which Fundling did not, there is no need to examine the ability Fundling possessed. The affirmative defenses to the APA do not mandate a "substantiality" requirement. As the Supreme Court exhorted: "Under the [EPA], the courts and administrative agencies are not permitted to substitute their judgment for the judgment of the employer ... who [has] established and applied a bona fide job rating system, so long as it does not discriminate on the basis of sex." County of Washington v. Gunther, 452 U.S. 161 (1981) (internal citations omitted); see also Hodgson v.
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 18

Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1258 (1972) ("Congress intended to
permit employers wide discretion in evaluating work for pay purposes."). Nevertheless, even if
the Court were to incorporate "substantiality" into the affirmative defense, sufficient evidence
exists proving experience and skill Schlenker possessed and utilized was more than extraneous
or random. Hence, Plaintiffs cannot succeed by arguing that Schlenker's experience and skill
were utilized in an insignificant manner.
In sum, the Court cannot ignore the immense experience Schlenker brought to the table,
nor can it ignore the fact that Schlenker utilized much of his experience at TXI. Furthermore,
the Court recognizes fully that Schlenker possessed much expertise and experience which
Fundling did not. See, e.g., Fundling dep. at p. 62,1. 19 to p. 63, 1. 1; p. 69, 11. 16-23; p. 82,11.4-
10; p. 82, 1. 25 to p. 83,1. 7 (Def.'s App. at pp. 153; 154; 158; 158). As experience qualifies as a
bona fide exemption to the EPA, the Court finds that Defendant establishes its affirmative
defense. ll
2. Complex Legal Work
Added to Schlenker's expertise and experience is Fundling's admissions that Schlenker
handled the more complex work at TXI since his arrival. See Fundling dep. at p. 172,11.7-20
11 Plaintiff complains vociferously about Defendant's use of the term "market forces" when referring to the pay differentials between Schlenker and Fundling. See PI. 's Resp. at p. 31 ("[T]he Fifth Circuit has routinely disallowed such arguments that wage differentials could be justified because the salary paid to a newly hired employee was driven by market forces that must be expended to attract qualified individuals.") (citing Siler-Khodr v. Univ. ofTex. Health Sci. Ctr. San Antonoi, 261 F.3d 542,549 (5th Cir. 2001)). Plaintiff, however, takes liberties with its assertions. A thorough review of the caselaw reveals exactly what type of "market forces" behavior is prohibited. Compare Brock v. Georgia Southwestern College, 765 F.2d 1026, 1037 (11th Cir. 1985) ("[T]he argument that women qua women may be paid less is exactly the kind of evil that the [EPA] was designed to eliminate, and has been rejected.") (citing Brennan v. City Stores, Inc., 479 F.2d 235, 241 n. 12 (5th Cir. 1973) with Horner v. Mary Inst., 613 F.2d 706, 714 (8th Cir. 1980) ("[A]n employer may consider the market place value of the skills of a particular individual when determining his or her salary.") (emphasis added). In this case, Defendant's use of the term "market forces" fully comports with allowable behavior. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 19

(Def.'s App. at p. 174). This admission is quite logical because of Schlenker's skills and experience which Fundling did not possess. The actual performance of Schlenker's added skill level lends explains and justifies the pay differentials between Schlenker and Fundling. Again, the Court need not make quantitative determinations with respect to how much complex legal work Schlenker performed. There is no sliding scale to calculate pay disparities according to the level of complex work performed, nor should one exist. Furthermore, the Court need not concern itself with deciding equitable pay disparities; the law does not require such an analysis. It is enough to note that Schlenker handled the more complex legal work at TXI since the beginning of his employment. Such a determination qualifies as a valid affirmative defense.
3. Changing Legal Status Finally, the Court recognizes TXI's dynamic legal situation as a valid justification for wage disparities. As stated earlier, "[i]n 1998, TXI dramatically increased its operations with the collateral effect of significantly increasing the legal department's workload." Moore dec1. at 'J 20 (Def.'s App. at p. 107). TXI acquired several operations that triggered finance operations involving a private placement and a public offering of stock. !d. Additionally, the acquisitions "all occurred within a short time period after TXI merged with Chaparral Steel via a public tender for its outstanding stock." Id. These substantial business dealings caused an influx of securities and financing work to TXI's legal department. Notably, these dealings brought with them complexities and situations novel to Fundling's skills and experience. Compare Moore dec1. at 'J'J22-23 (Def.'s App. at pp. 107-108) with Fundling dep. at p. 56, 11. 9-15; p. 58,11.2022; p. 76, 1. 7 to p. 77, 1. 19; p. 82,11.19-24; p. 115,11.6-17 (Def.'s App. at p. 151; 152; 156;
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 20

158; 161). Hence, sufficient reason existed for TXI to seek an attorney with those skills and expertise. Moreover, the decision to offer the incoming attorney a higher wage than Fundling is not subject to judicial alteration as the reason offered was for a valid business judgment other than sex. Accordingly, the Court finds TXI's dynamic legal situation an acceptable affirmative defense.
4. Preset Determinations In addition to these determinants, solid evidence exists that Moore established the grade 14 classification and $100,000 per annum salary before Schlenker applied for TXI employment. 12 See PI.'s App. at p. 31 ("Legal Department FY 2000 Salary Plan"). The increased grade and salary infer an attorney with more skill and experience than Fundling possessed. However, even if viewed as circumstantial, Moore's declaration, coupled with Schlenker's experience and Fundling's admissions solidify the notion that the grade and salary were more than red herrings. Therefore, the Court finds substantial evidence and reason to accept Defendant's affirmative defenses. In sum, TXI proffers sufficient justification for its wage allocation under the EPA. IV. Title VII Title VII provides that "it shall be an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual ... because of such
12 While Plaintiff highlights that TXI in fact hired Schlenker as a grade 13 employee, see PI. 's Resp. at p. 12 (citing Durbin dep. at p. 69,11. 19-21 (PI.'s App. at p. 110), it does not dispute Defendant's evidence of Moore's intention to hire Schlenker as a grade 14 employee. As TXI created the Legal Department FY 2000 Salary Plan before it made its hiring decision, it is Defendant's evidence that deserves the proper spotlight. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 21

individual's race, color, religion, sex, or national origin." 42 U.S.c. § 2000e-2(a)(1). In a sex discrimination case, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The prima facie case, if established, raises a presumption of discrimination. The defendant must rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). "Moreover, Title VII incorporates that portion of the [EPA] which permits dissimilar wages between men and women pursuant to (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production, or (4) a differential based on any other factor other than sex." Def.' s Br. at pp. 10-11 (citing County of Washington, 452 U.S. 161). If the defendant satisfies this burden, the presumption disappears, and the plaintiff must prove that the proffered reasons are a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) [hereinafter Hicks]. The plaintiff retains the ultimate burden of persuasion throughout the case. Burdine, 450 U.S. at 256.
In cases not involving discharge, a plaintiff must prove the following in order to establish a prima facie case of discrimination: (1) she belonged to a protected group; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) similarly-situated employees outside her protected class were treated more favorably under circumstances nearly identical to hers. See Martin v. Kroger Co., 65 F. Supp.2d 516,543 (S.D. Tex. 1999); see also Nieto v. L&H Packing Co., 108 F.3d 621,623 (5th Cir. 1997); Waggoner v. Garland, 987 F.2d 1160, 1163-64 (5th Cir. 1993); Thornbrough, 760 F.2d at 639; Little v. Republic Refining Co.,
3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 22

Ltd., 924 F.2d 93,97 (5th Cir. 1991)).13 As Defendant concedes the first three prongs, the Court need only address whether Schlenker qualifies as a similarly situated employee with a circumstance nearly identical to Fundling.
Analogous to Plaintiffs APA claim, Defendant argues Schlenker cannot be considered as a similarly situated employee as "Schlenker was hired under different circumstances and with experiences and skill sets that Fundling did not have and that TXI valued." Def. 's Br. at p. 12. In response, Plaintiff repeats its previous arguments asserted in Plaintiff s APA assertions. See id. ("[Defendant's] claims of gender discrimination stems solely from Fundling's subjective belief that it was discriminatory to pay Schlenker more than she was paid. However, and as discussed more fully above, the circumstances between FundIing and Schlenker are not nearly identical ...."). As such, the Court need not entertain a repeat analysis of this issue. Rather, the Court reiterates that Schlenker's and Fundling's jobs were not substantially equal, and that under Title VII, Schlenker and Fundling were not similarly situated employees. Therefore, FundIing's Title VII claim also fails.
a. Exemptions However, even assuming arguendo that Schlenker and Fundling were similarly situated employees, Defendant offers a legitimate, nondiscriminatory reason for its actions. Specifically, that Schlenker's experience "necessarily demanded greater compensation." Def. 's Br. at p. 13. To wit, Defendant allocated a larger salary to Schlenker because of his skill set and general counsel background. In listing and arguing such reasons, Defendant essentially reiterates its
13 Although Waggoner, Thornbrough and Little address discrimination from the viewpoint of the Age Discrimination in Employment Act ("ADEA"), courts apply a similar analysis when scrutinizing Title VII situations. See Thornbrough, 760 F.2d at 639 nA. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 23

previous arguments from Plaintiffs APA claim. The Court finds that such reasons satisfy the Defendant's burden of offering acceptable rationales for its actions. Therefore, Plaintiff must prove that the proffered reasons are a pretext for discrimination. See Hicks, 509 U.S. at 507.
To establish pretext, Plaintiff cannot rely upon sUbjective belief that TXI discriminated against Fundling. See Price v. Marathon Cheese Corp., 119 F.3d 330,337 (5th Cir. 1997); Ray v. Tandem, 63 F.3d 429,434 (5th Cir. 1995). It must provide substantial evidence from which a reasonable inference can be draw that the Defendant's proffered reasons are false; a mere shadow of doubt is insufficient. EEOC v. Lousiana Office a/Community Services, 47 F.3d 1438, 1444 (5th Cir. 1995). In this case, there is no evidence indicating that Defendant's proffered reasons are false.
Plaintiff attempts to prove pretext by first asserting that Moore failed Fundling by not providing learning opportunities so that Fundling could gain the expertise and experience that Schlenker possessed. Such a response confuses the issue. Title VII does not guarantee plaintiffs that they must be given employment opportunities. Rather Title VII prohibits the employer from considering certain criteria, in this case sex, when making that employment decision. The issue is discrimination, not equitable advancement. 14
In short, Plaintiff fails to produce substantial evidence from which this Court can infer that the Defendant's proffered reasons for the pay disparity were actually pretext for sex
14 Plaintiff alleges further that additional evidence proves Defendant's discriminatory animus toward Fundling. However, the Court finds otherwise. The comment that Moore threatened to make Schlenker "Fundling's supervisor if she persisted with her unequal pay claim," PI. 's Resp. at p. 36, is sufficiently explained when put into context. See Moore dep. at p. 148,1. 8 to p. 149,1. 5 (Def. 's App. at p. 13). Additionally, the Court addressed previously any argument regarding Fundling's contributions to the legal department or Schlenker's expertise and need not repeat such analysis. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 24

discrimination. In sum, Defendant's Motion for Summary Judgment with respect to Plaintiffs
Title vn claims must be GRANTED.
v. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED.

It is so ordered.

~ay Signed this 13

of January 2005.

3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 25

 
 2005 WL 859274 United States District Court, S.D. Iowa, Davenport Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
DIAL CORPORATION, Defendant.
No. Civ.3-02-CV-10109. | Feb. 3, 2005.
Attorneys and Law Firms
Rosemary J Fox, Deborah J Powers, Dennis R McBride, Jean P Kamp, EEOC Milwaukee District Office, Milwaukee, WI, for Plaintiff.
Camille A Olson, Michael A Warner, Christopher L Casazza, Laura A Lindner, Seyfarth Shaw, Chicago, IL, Kevin J Driscoll, Finley Alt Smith Scharnberg Craig Hilmes & Gaffney, PC, Des Moines, IA, for Defendant.
Opinion
ORDER
LONGSTAFF, Chief J.
*1 The Court has before it defendant Dial Corporation’s (“Dial”) motion for judgment as a matter of law, filed September 24, 2004. The Equal Employment Opportunity Commission (“EEOC”) resisted the motion on October 24, 2004.1
In addition, on August 24, 2004, Dial filed a motion to exclude compensatory damages claims from women whose employment applications were denied by Dial prior to April 2001. The EEOC has not formally resisted the motion.
Both motions are now considered fully submitted.
I. MOTION FOR JUDGMENT AS A MATTER OF LAW The Eighth Circuit recently summarized the standard for reviewing a Rule 50 motion for judgment as a matter of law (“jmal”):

Judgment as a matter of law is appropriate where the evidence adduced at trial is entirely insufficient to support the verdict [ ]. In making this determination, we consider all of the evidence in the record without weighing credibility, and we resolve conflicts and make all reasonable inferences in favor of the non-moving party [ ]. An inference is reasonable, however, when it “may be drawn from the evidence without resort to speculation” [ ]. Credence should also be given to evidence favoring the moving party where that evidence is uncontradicted and unimpeached and comes from disinterested witnesses. Kinserlow v. CMI Corp., 217 F.3d 1021, 1025-26 (8th Cir.2000) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
Genthe v. Lincoln, 383 F.3d 713, 716 (8th Cir.2004). In support of its present motion, Dial argues the evidence was insufficient to have enabled a reasonable jury to have found intentional discrimination. Specifically, Dial notes that the two women who developed the test, plant nurse Martha Lutenegger and former human resources manager Jean Farrington, testified that the sole reason for implementing the Work Tolerence Screening test, or “WTS,” was to reduce injuries by first ensuring applicants were physically capable of performing the jobs at issue. Both Ms. Farrington and Terry Hartledge, the female plant manager from September 2000 through February 2004, also testified they were periodically informed that the annual rate of injuries dropped from more than 60 in 1999, prior to the WTS’ introduction, to less than 30 in 2000 through 2003. Thus, they claimed to have had no basis for recommending any elimination or change in the WTS.
Dial also argues that it was error for the jury to infer intentional sex discrimination based on the statistically adverse impact of the WTS on female applicants, and that the EEOC failed to prove at trial that Dial acted affirmatively for the explicit purpose of discriminating against women applicants. See, e.g., Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir.1994) (“discriminatory purpose is more than a mere ‘awareness of the consequences” ’).
The Court declines to set aside the verdict. Although, as reflected in this Court’s summary judgment ruling, statistical evidence is alone insufficient to establish intentional discrimination, the EEOC produced ample additional evidence of overt acts on the part of Dial employees from which the jury could infer intentional discrimination. For example, the WTS score sheets completed by Ms. Lutenegger and others gave passing
1

grades to most male applicants with few, if any, comments. The score sheets for female applicants included subjective comments, regardless of whether the women actually completed the test. Additionally, Dial clearly was aware of the disparate impact on women as early as April 2001, yet affirmatively chose to continue use of the WTS. Although an extremely close question, the Court finds a reasonable jury could infer that the continued use of the WTS after April 2001 was the product of intentional discrimination. *2 Dial’s motion for jmal is denied.
A. Chrystal Capps/Guzman
.............
B. Angela Elder
.............
C. Lena Keppel
.............
D. Tiffany Smith
.............
E. Karen Sperry
.............
F. Kimberly Walker
.............

II. MOTION TO EXCLUDE COMPENSATORY DAMAGES CLAIMS As set forth above, on August 23, 2004, the jury returned a verdict finding that, as of April 2001, Dial has engaged in a pattern or practice of intentional discrimination against female applicants. Additional evidence regarding compensatory damages was presented to the jury on August 25, 2004. Later that day, the jury returned a verdict awarding the following amounts of compensatory damages to the nine women who testified that morning:
$5,000
$5,000
$1
$1
$5,000
$5,000
2

G. Sharon Harriman

.............

H. Paula Smeltzer

.............

I.

Cheri Vanderlip

$5,000 $1
$5,000

Dial seeks to dismiss the compensatory and, for that matter, all damages claim of women who took the WTS and failed to pass in February or March of 2001. At trial, the EEOC argued that such claims should be allowed, based on the fact the women had a proposed start date of April 2, 2001-after the threshold date of intentional discrimination. In particular, the jury heard testimony from Lena Keppel and Tiffany Smith, both of whom took the test on March 2, 2001. In a Title VII context, the United States Supreme Court has held that discrimination takes place at the time the adverse decision was made and communicated to the plaintiff-even though the effects of the discrimination may be felt on a later date. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Accordingly, a jury finding that any intentional discrimination took place on or after April 2001 necessarily precludes the damages claims-not only for compensatory damages, but also for back pay and front pay as well, for all female applicants who were told they did not pass the WTS prior to April 2001.
This holding also is consistent with the jury’s verdict. Its decision to award Ms. Keppel and Ms. Smith nominal damages of one dollar a piece suggests it believed these women were not in the class of women subject to intentional discrimination, which it found did not begin until April 2001. In entering final judgment, the Court will reduce the damages awarded to Ms. Keppel and Ms. Smith from one dollar to zero.2 Moreover, the Court will not award damages to any woman whose employment applications were denied by Dial prior to April 2001.
III. CONCLUSION For the reasons outlined above, Dial’s August 24, 2004 motion to exclude compensatory damages claims from female job applicants whose employment applications were denied by Dial prior to April 2001 is granted. Dial’s September 24, 2004 motion for jmal is denied. To ensure duplicate damages are not awarded, however, the Court will withhold entry of judgment until all remedies issues have been resolved with regard to the disparate impact claim.
*3 IT IS ORDERED.

3

 
 2005 WL 2839977 United States District Court, S.D. Iowa, Davenport Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
DIAL CORPORATION, Defendant.
No. Civ.A. 3:02-CV-10109. | Sept. 29, 2005.
Attorneys and Law Firms
Jean P. Kamp, Deborah J. Powers, Rosemary J. Fox, Milwaukee, WI, for Plaintiff.
Camille A. Olson, Michael A. Warner, Christopher L. Casazza, Laura A. Lindner, Seyfarth Shaw, Chicago, IL, Kevin J. Driscoll, Finley Alt Smith Scharnberg Craig Hilmes & Gaffney, PC, Des Moines, IA, for Defendant.
Opinion
ORDER FOR JUDGMENT
LONGSTAFF, Chief J.
*1 This action was brought by the Equal Employment Opportunity Commission (“EEOC”), alleging that Dial Corporation (“Dial”) discriminated against female applicants for entry level jobs by using a “work tolerance screen,” a strength test, which excluded females, in violation of Title VII of the Civil Rights Act of 1964, as amended. On August 23, 2004, a jury found that Dial’s use of the strength test constituted intentional discrimination against women after April, 2001. By Order of February 3, 2005, this Court denied Dial’s Motion for Judgment as a Matter of Law, and also held that Dial’s use of the work tolerance screen had a disparate impact against female applicants in violation of Title VII of the Civil Rights Act of 1964. Following the Court’s Order of April 12, 2005, and additional briefing of post-trial damages issues (the parties agreeing that notwithstanding the entry of this Proposed Order or any final judgment in this matter, the parties have preserved their rights to appeal all issues relating to the determinations of liability and any relief which have previously been raised and briefed or orally argued before this Court prior to September 14, 2005), and following the Court’s order of September 14, 2005,

IT IS HEREBY ORDERED:
1. Judgment be entered in favor of the EEOC and against Dial, together with costs.
2. If Dial desires to reinstate use of a revised Work Tolerance Screen, or to implement any new preemployment screening device during the next five years, it shall, at least 90 days before implementing such screening device, provide to the EEOC a description of the test, whether it has or is expected to have a disparate impact against women, and all evidence showing it to be job-related and consistent with business necessity.
3. Dial has offered all claimants Production Technician positions at the Fort Madison Food Plant of the Dial Corporation. Fourteen claimants accepted these offers (“Claimants Accepting Offers”). In light of these offers, EEOC is not seeking front pay in this matter, except as provided in Paragraph 5 below. To date, issues have arisen at least with respect to three of the Claimants Accepting Offers: Paula Liles’s employment was terminated on July 12, 2005; Heather Bradley-Wright’s employment was suspended on August 5, 2005 pending completion of a background screen; and Sue Guthrie’s employment status is awaiting additional medical information.
Dial shall treat the Claimants Accepting Offers as nonprobationary employees for purposes of the grievance and arbitration provisions of the collective bargaining agreement governing their working conditions. Dial agrees to not raise any issues of arbitrability of any such grievances or requests for arbitration with respect to the Claimants Accepting Offers as it relates to these individuals’ claims, if any, up through the date of this Order. EEOC agrees that any remedies awarded under the collective bargaining agreement, as well as the remedies and procedures set forth below, may be introduced in evidence at any Court hearing for enforcement of Title VII rights of any such Claimants Accepting Offers, and EEOC’s right to such a hearing shall not otherwise be affected. Dial agrees to work with the collective bargaining representative to modify the collective bargaining agreement such that the arbitrator shall have express authority to allow the parties to engage in discovery in accordance with the Federal Rules of Civil Procedure and to award any and all appropriate relief under the agreement, as well as compensatory and punitive damages in accordance with Civil Rights Act of 1991.
*2 As positions become available in the normal course of
1

business, Dial shall make job offers to all class members who have not previously accepted job offers and whom EEOC has identified as interested in such an offer, whose names shall be communicated to Dial within twenty-one days of the date of entry of judgment. The offers shall be for Production Technician positions. Dial shall treat all such new employee class members as non-probationary employees for purposes of the grievance and arbitration provisions of the collective bargaining agreement governing their working conditions.

Dial shall not treat any class members differently from

other employees or retaliate against them in violation of

Title VII. Class members who have previously accepted

job offers from Dial and who are no longer employed by

NAME	  

DATES	  

BACK	  PAY	  

	  	  

	  	  

	  	  

	  

	  

	  

Mary	  Adler	  

May	  9,	  2005	  -­‐	  

$3,136.00	  

	  	  

	  	  

	  	  

	  

	  

	  

.....................................................................................	  

	  

	  	  

	  

	  

June	  13,	  2005	  

	  

	  	  

	  

Stephanie	  Krome	  

May	  9,	  2005	  -­‐	  

$3,136.00	  

	  	  

	  	  

	  	  

	  

	  

	  

.....................................................................................	  

	  

	  	  

	  

	  

June	  13,	  2005	  

	  

	  	  

	  

Lisa	  Monnier	  

May	  9,	  2005	  -­‐	  

$3,136.00	  

	  	  

	  	  

	  	  

	  

	  

	  

.....................................................................................	  

	  

	  	  

	  

	  

June	  13,	  2005	  

	  

	  	  

	  

Denise	  Trejo	  

May	  9,	  2005	  -­‐	  

$2,400.00	  

	  	  

	  	  

	  	  

	  

	  

	  

.....................................................................................	  

	  

	  	  

	  

	  

June	  13,	  2005	  

	  

	  	  

	  

Cheryl	  Guthrie	  

May	  9,	  2005	  -­‐	  

$6,272.00	  

	  	  

	  	  

	  	  

	  

	  

	  

.....................................................................................	  

	  

Dial, shall be deemed to have the same rights under this paragraph as class members currently employed, or hired pursuant to this paragraph.
4. Within thirty days of the entry of this Judgment, each of the following class members who previously accepted an offer of employment at Dial shall receive as additional back pay from May 9, 2005, (the date on which the first job offers became effective), to the date on which she commenced work at Dial, one half of her actual wage loss, as follows:

	  
MITIGATION	   	  	   	   $1,400.00	   	  	   	   	  

INTEREST	   	  	   	  
$25.34	   	  	   	   	  

½	  TOTAL	   	  	   	  
$880.67	   	  	   	   	  

	  

	  

	  

$0	  

$36.69	  

$1,586.35	  

	  	  

	  	  

	  	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

$1,336.00	   	  	   	   	  
	  

$20.34	   	  	   	   	  
	  

$910.17	   	  	   	   	  
	  

$2,100.00	   	  	   	   	  
	  
$0	   	  	   	   	  

$5.94	   	  	   	   	  
	  
$91.57	   	  	   	   	  

$152.97	   	  	   	   	  
	  
$3,181.78	   	  	   	   	  

2

	  	  

	  

	  

July	  18,	  2005	  

	  	  

	  

Anita	  Howes	  

May	  9,	  2005	  -­‐	  

	  	  

	  	  

	  

	  

.....................................................................................	  

	  	  

	  

	  

July	  18,	  2005	  

	  	  

	  

Shanen	  Carlson	  

May	  9,	  2005	  -­‐	  

	  	  

	  	  

	  

	  

.....................................................................................	  

	  	  

	  

	  

July	  18,	  2005	  

	  	  

	  

Heather	  Wright	  

May	  9,	  2005	  -­‐	  

	  	  

	  	  

	  

	  

.....................................................................................	  

	  	  

	  

	  

July	  18,	  2005	  

	  	  

	  

	  
$6,272.00	   	  	   	   	  
	  
$4,440.00	   	  	   	   	  
	  
0	   	  	   	   	  
	  

	  
$0	   	  	   	   	  
	  
$1,393.00	   	  	   	   	  
	  
0	   	  	   	   	  
	  

	  
$262.79	   	  	   	   	  
	  
$85.92	   	  	   	   	  
	  
0	   	  	   	   	  
	  

	  
$3,267.39	   	  	   	   	  
	  
$1,566.4	  6	   	  	   	   	  
	  
0	   	  	   	   	  
	  

5. Beginning on September 30, 2005, and quarterly thereafter, Dial shall pay to each class member who begins or began work pursuant to Paragraph 3 of this Order, front pay defined as: a) the value of benefits from May 9, 2005, through August 7, 2005 ($1,965.00)(or until she left Dial’s employment, whichever comes first); and b) the difference in the hourly wage for each hour actually worked (including any overtime actually worked) and the wage which the class member would have earned for those hours had she been hired at the time of her original application, until her wages equal what she would have earned had she been hired at the time of her original application. These payments will be computed and paid within thirty days of the end of each quarter, following the entry of final judgment.

issue checks, by certified mail, with copies to EEOC, to each of the class members as follows: 1) back pay, including overtime, from the date the class member should have been hired until March 31, 2005, less mitigation; 2) lost benefits, calculated as the cost of benefits to Dial, less mitigation; and 3) prejudgment interest, calculated at the statutory post-judgment interest rate, from the date the class member would have been hired until March 31, 2005, compounded annually, plus prejudgment interest on that amount, to the date of entry of judgment by the District Court. Dial shall deduct the employee’s share of required payroll taxes from checks for back pay required by this Paragraph, and by Paragraphs 4 and 5 of this Order.

*3 6. Within thirty days of entry of judgment, Dial shall

	  

NAME	  

BACK-­PAY	  

BENEFITS	  

	  	  

	  	  

	  	  

	  

	  

	  

Paula	  Liles	  

$93,929.09	  

0	  

	  	  

	  	  

	  	  

	  

	  

	  

INTEREST	  THROUGH	  3/31/05	   	  	   	  
$16,588.77	   	  	   	  

TOTAL	   	  	   	  
$110,517.86	   	  	   	  

3

Patricia	  Maerz	  

$120,236.23	  

	  	  

	  	  

	  

	  

Charlotte	  McClure	  

$81,324.87	  

	  	  

	  	  

	  

	  

Tracy	  Dresden	  

$134,366.59	  

	  	  

	  	  

	  

	  

Vickie	  Hamelton	  

$82,430.46	  

	  	  

	  	  

	  

	  

Alice	  Schmoldt	  

$106,295.30	  

	  	  

	  	  

	  

	  

Heather	  Wright-­‐Bradley	  

0	  (no	  check	  

	  	  

	  	  

	  

	  

	  

issued)	  

	  	  

	  

Carol	  Kirchner	  

$96,121.83	  

	  	  

	  	  

	  

	  

.......................................................................................................	  

	  	  

	  

Shannon	  White	  

$98,759.23	  

	  	  

	  	  

	  

	  

Anita	  Howes	  

$104,377.78	  

	  	  

	  	  

	  

	  

Lena	  Keppel	  

$57,234.04	  

	  	  

	  	  

	  

	  

Tamara	  Mattingly	  

$90,205.43	  

	  	  

	  	  

	  

	  

Jessica	  Morss	  

$60,000	  

	  	  

	  	  

	  

	  

Dacia	  Fry	  

$68,991.43	  

	  	  

	  	  

	  

	  

Tarabeth	  Peabody	  

$69,900.00	  

	  	  

	  	  

	  

	  

Tiffany	  Smith	  

$95,272.08	  

	  	  

	  	  

	  

	  

Patrice	  Squier	  

$38,405.33	  

	  	  

	  	  

	  

	  

Maude	  Gillenwater	  

$45,988.11	  

	  	  

	  	  

	  

	  

Darcie	  Lefler	  

$76,107.71	  

$6,115.80	   	  	   	   $10,792.58	   	  	   	   $3,051.00	   	  	   	   $6,293.00	   	  	   	   $12,240.50	   	  	   	   0	   	  	   	   	  

$21,961.88	   	  	   	   $13,949.19	   	  	   	   $24,787.64	   	  	   	   $16,607.45	   	  	   	   $22,888.91	   	  	   	   0	   	  	   	   	  

$20,073.34	   	  	   	   	  

$28,018.81	   	  	   	   	  

$30,385.34	   	  	   	   $14,991.75	   	  	   	   $5,342.60	   	  	   	   $24,353.25	   	  	   	   $13,500	   	  	   	   $4,150.00	   	  	   	   $15,500.00	   	  	   	   $7,205.45	   	  	   	   0	   	  	   	   0	   	  	   	   $6,892.29	  

$15,955.43	   	  	   	   $15,867.93	   	  	   	   $9,942.37	   	  	   	   $14,512.55	   	  	   	   $1500	   	  	   	   $10,317.04	   	  	   	   $11,600.00	   	  	   	   $13,934.72	   	  	   	   $4,625.45	   	  	   	   $5,498.97	   	  	   	   $12,000.00	  

$148,077.68	   	  	   	   $106,066.64	   	  	   	   $162,205.23	   	  	   	   $105,330.91	   	  	   	   $141,424.71	   	  	   	   0	   	  	   	   	  
$144,213.98	   	  	   	   	  
$145,100.00	   	  	   	   $135,237.46	   	  	   	   $72,519.00	   	  	   	   $129,071.23	   	  	   	   $75,000	   	  	   	   $83,458.47	   	  	   	   $97,000.00	   	  	   	   $116,412.25	   	  	   	   $43,030.78	   	  	   	   $51,487.08	   	  	   	   $95,000.00	  
4

	  	   	   Mary	  Adler	   	  	   	   Hazel	  Dohman	   	  	   	   Brenda	  Featheringill	   	  	   	   Heather	  Gustin	   	  	   	   Sue	  Guthrie	   	  	   	   Selena	  Hawkins	   	  	   	   Sharon	  Herriman	   	  	   	   Paula	  Smeltser	   	  	   	   Karen	  Sperry	   	  	   	   Cheri	  Vanderlip	   	  	   	   Kimberly	  Walker	   	  	   	   Anita	  Nunn	   	  	   	   Karen	  Ridge	   	  	   	   Amanda	  LeMaster	   	  	   	   Wagner	   	  	   	   Lisa	  Monnier	   	  	   	   Michelle	  Davidson-­‐Keppel	   	  	   	   Angela	  Elder	   	  	   	   Taleah	  Knotts	   	  	  

	  	   	   $37,204.75	   	  	   	   $2,334.72	   	  	   	   $19,254.79	   	  	   	   $45,174.44	   	  	   	   $56,275.71	   	  	   	   $38,796.34	   	  	   	   $29,484.76	   	  	   	   $31,257.50	   	  	   	   $25,083.69	   	  	   	   $26,917.20	   	  	   	   $38,331.43	   	  	   	   $36,965.86	   	  	   	   $22,209.04	   	  	   	   $47,743.86	   	  	   	   	  
$28,122.28	   	  	   	   $34,335.21	   	  	   	   $42,506.57	   	  	   	   $41,753.66	   	  	  

	  	   	   $18,167.92	   	  	   	   0	   	  	   	   $2,640.45	   	  	   	   10,000.00	   	  	   	   $9,552.32	   	  	   	   $9,165.05	   	  	   	   $6,234.29	   	  	   	   $13,007.89	   	  	   	   $5,080.40	   	  	   	   $5,458.13	   	  	   	   $15,505.53	   	  	   	   $11,542.20	   	  	   	   $4,500.00	   	  	   	   $13,567.03	   	  	   	   	  

	  	   	   $1,879.44	   	  	   	   $139.36	   	  	   	   $766.35	   	  	   	   1113.87	   	  	   	   $2,290.49	   	  	   	   $1,658.47	   	  	   	   $1,208.58	   	  	   	   $1,498.38	   	  	   	   $1,171.37	   	  	   	   $1,006.07	   	  	   	   $2,050.19	   	  	   	   $1821.38	   	  	   	   $600.00	   	  	   	   $1,559.33	   	  	   	   	  

$12,891.50	   	  	   	   $5,774.00	   	  	   	   $10,522.09	   	  	   	   $10,522.09	   	  	  

$933.22	   	  	   	   $934.52	   	  	   	   $1,203.53	   	  	   	   $1,213.45	   	  	  

	  	   	   $57,252.11	   	  	   	   $2,474.08	   	  	   	   $22,661.59	   	  	   	   $56,288.31	   	  	   	   $68,118.52	   	  	   	   $49,619.86	   	  	   	   $36,927.63	   	  	   	   $45,763.76	   	  	   	   $31,335.46	   	  	   	   $33,381.40	   	  	   	   $55,887.15	   	  	   	   $50,329.44	   	  	   	   $27,309.04	   	  	   	   $62,870.23	   	  	   	   	  
$41,947.00	   	  	   	   $41,043.73	   	  	   	   $54,232.19	   	  	   	   $53,489.20	   	  	  
5

	   Stephanie	  Krome	   	  	   	   Peggy	  Vermillion-­‐Workman	   	  	   	   Crystal	  Capps	   	  	   	   (Guzman)	   	  	   	   Mindy	  Schofield	   	  	   	   Michele	  Flockhart	   	  	   	   Pamela	  Dye	   	  	   	   Denni	  Fortune	   	  	   	   Jessica	  Ort	   	  	   	   Denise	  Trejo	   	  	   	   Pauline	  Vass	   	  	   	   Nancy	  Ehrhardt	   	  	   	   Stacy	  Miller	   	  	   	   S.Carlson	   	  	   	   C.	  Forrester	   	  	   	   R.	  Kennedy	   	  	   	   Sara	  Finton	   	  	   	  

	   $30,097.48	   	  	   	   $29,865.43	   	  	   	   $38,807.66	   	  	   	   	  
$30,419.98	   	  	   	   $20,761.72	   	  	   	   $20,761.72	   	  	   	   $8,071.11	   	  	   	   $16,800.00	   	  	   	   $4,858.72	   	  	   	   $8,346.72	   	  	   	   $15,278.97	   	  	   	   $13,038.08	   	  	   	   $3,810.00	   	  	   	   $4,545.00	   	  	   	   $3,959.00	   	  	   	   $920.00	   	  	   	  

	   $10,522.09	   	  	   	   $5,774.00	   	  	   	   $9,229.61	   	  	   	   	  

	   $874.09	   	  	   	   $770.94	   	  	   	   $1,193.46	   	  	   	   	  

$9,229.61	   	  	   	   $241.00	   	  	   	   $2,845.78	   	  	   	   $882.03	   	  	   	   $2,600.00	   	  	   	   $1,077.48	   	  	   	   $2,845.78	   	  	   	   $2,138.41	   	  	   	   $2,138.41	   	  	   	   $0	   	  	   	   $0	   	  	   	   $0	   	  	   	   $0	   	  	   	  

$985.31	   	  	   	   $628.33	   	  	   	   $696.65	   	  	   	   $278.13	   	  	   	   $600.00	   	  	   	   $150.34	   	  	   	   $299.63	   	  	   	   $548.15	   	  	   	   $395.18	   	  	   	   $107.44	   	  	   	   $128.17	   	  	   	   $111.64	   	  	   	   $25.94	   	  	   	  

*4 7. Within thirty days of entry of Judgment, Dial shall issue checks, by certified mail, with copies to EEOC, for compensatory damages plus prejudgment interest to

August 23, 2005, as follows:

	   $41,493.66	   	  	   	   $36,410.37	   	  	   	   $49,230.74	   	  	   	   	  
$40,634.91	   	  	   	   $21,631.05	   	  	   	   $24,304.15	   	  	   	   $9,231.27	   	  	   	   $20,000.00	   	  	   	   $6,086.54	   	  	   	   $11,492.13	   	  	   	   $17,965.52	   	  	   	   $15,571.67	   	  	   	   $3,917.44	   	  	   	   $4,673.17	   	  	   	   $4,070.64	   	  	   	   $945.94	   	  	   	  
6

	  

Crystal	  Capps/Guzman	  

$5,099	  

	  	  

	  	  

	  

	  

.................................................................................................................................................................................................... 	  

	  	  

	  

Angela	  Elder	  

$5,099	  

	  	  

	  	  

	  

	  

.................................................................................................................................................................................................... 	  

	  	  

	  

Karen	  Sperry	  

$5,099	  

	  	  

	  	  

	  

	  

.................................................................................................................................................................................................... 	  

	  	  

	  

Kimberly	  Walker	  

$5,099	  

	  	  

	  	  

	  

	  

.................................................................................................................................................................................................... 	  

	  	  

	  

Sharon	  Harriman	  

$5,099	  

	  	  

	  	  

	  

	  

.................................................................................................................................................................................................... 	  

	  	  

	  

Paula	  Smeltzer	  

$1	  

	  	  

	  	  

	  

	  

.................................................................................................................................................................................................... 	  

	  	  

	  

Cheri	  Vanderlip	  

$5,099	  

	  	  

	  	  

	  

	  

8. Within thirty days of entry of this Judgment, Dial shall pay to each of the following class members the sum of $9,000 as damages. Shanen Carlson, Pamela Dye, Nancy Ehrhardt, Sara Finton, Michele Flockhart, Carol Forrester, Denni Fortune, Rebecca Kennedy, Stacy Miller, Jessica Ort, Denise Trejo, Pauline Vass.
7

IT IS FURTHER ORDERED that the Clerk enter judgment consistent with the terms of this order. 8

 
 CM/ECF - U.S. District Court:iasd

https://ecf.iasd.uscourts.gov/cgi-bin/framemenu.pl

Query •

Reports •

Utilities •

Logout

1 of 1

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

TERMED
U.S. District Court United States District Court for the Southern District of Iowa (Davenport)
CIVIL DOCKET FOR CASE #: 3:02-cv-10109-REL-RAW

EEOC v. Dial Corporation Assigned to: Senior Judge Ronald E. Longstaff Referred to: Magistrate Judge Ross A. Walters Demand: $0 Case in other court: 8th CIR, 05-04183
8th CCA, 05-04311 Cause: 42:2000 Job Discrimination (Sex)
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 09/24/2002 Date Terminated: 09/29/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Jean P Kamp EEOC MILWAUKEE DISTRICT OFFICE 310 W WISCONSIN AVE STE 800 MILWAUKEE, WI 53203-2292 414 297 1860 Fax: 414 297 3146 Email: jean.kamp@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah J Powers EEOC 310 W Wisconsin Avenue Suite 800 Milwaukee, WI 53203-2292 414 297 3983 Fax: 414 297 3146 Email: deborah.powers@eeoc.gov ATTORNEY TO BE NOTICED

Rosemary J Fox EEOC MILWAUKEE DISTRICT OFFICE 310 W WISCONSIN AVE STE 800 MILWAUKEE, WI 53203-2292 414 297 4131 Fax: 414 297 3146 Email: rosemary.fox@eeoc.gov ATTORNEY TO BE NOTICED

1 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report
V. Defendant Dial Corporation
2 of 15

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...
represented by Camille A Olson SEYFARTH SHAW 55 E MONROE ST STE 4200 CHICAGO, IL 60603-5803 312/346-8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A Kuhl Stanley Lande & Hunter 201 West Second Street 900 U. S. Bank Center 201 West Second Street Davenport, IA 52801 563 324 1000 Fax: 563 326 6266 Email: jkuhl@slhlaw.com TERMINATED: 08/16/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin J Driscoll Finley Alt Smith Scharnberg Craig Hilmes & Gaffney, PC 1900 Hub Tower 699 Walnut Street Des Moines, IA 50309 515 288 0145 Fax: 288 2724 Email: kdriscoll@finleylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A Warner SEYFARTH SHAW 55 E MONROE ST STE 4200 CHICAGO, IL 60603-5803 312/346-8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Joensen Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, PC
8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

699 Walnut Street, Suite 1900 1900 Hub Tower Des Moines, IA 50309 515 288 0145 Fax: 288 2724 Email: tjoensen@finleylaw.com ATTORNEY TO BE NOTICED
Christopher L Casazza SEYFARTH SHAW 55 E MONROE ST STE 4200 CHICAGO, IL 60603-5803 312/346-8000
Laura A Lindner SEYFARTH SHAW 55 E MONROE ST STE 4200 CHICAGO, IL 60603-5803 312/346-8000

Date Filed 05/11/2007 03/30/2007 03/22/2007 03/21/2007 03/21/2007 03/07/2007 03/07/2007

#

Docket Text

PUBLIC DOCKET ANNOTATION; all remaining paper exhibits shredded this date in the clerk's office, withdrawal of exhibit deadline past (ljf, ) (Entered: 05/11/2007)
176 2nd Supplemental JUDGMENT in favor of Equal Employment Opportunity Commission against Dial Corporation. Signed by Judge Ronald E. Longstaff on 3/30/2007. (don, ) (Entered: 03/30/2007)
175 CONSENT to Destroy Exhibits by attorney Deborah J. Powers for plaintiff. All of plaintiff's paper exhibits shredded this date in the clerk's office. (ljf, ) (Entered: 03/22/2007)
174 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 173 Joint MOTION to Alter Judgment (Powers, Deborah) (Entered: 03/21/2007)
173 Joint MOTION to Alter Judgment by Equal Employment Opportunity Commission. Responses due by 4/9/2007 (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Powers, Deborah) (Entered: 03/21/2007)
172 SUPPLEMENTAL JUDGMENT in favor of Equal Employment Opportunity Commission against Dial Corporation. Signed by Judge Ronald E. Longstaff on 3/7/2007. (Attachments: # 1 Exhibit A) (don, ) (Entered: 03/07/2007)
171 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 170 Unresisted MOTION to Alter Judgment (Powers, Deborah) (Entered: 03/07/2007)

3 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

03/07/2007 03/07/2007 02/02/2007 01/08/2007 01/08/2007 01/27/2006 01/19/2006 01/13/2006 01/13/2006 01/13/2006 01/13/2006 01/13/2006 01/13/2006

170 Unresisted MOTION to Alter Judgment by Equal Employment Opportunity Commission. Responses due by 3/26/2007 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit A)(Powers, Deborah) (Entered: 03/07/2007)
169 EXHIBIT WITHDRAWAL LETTER to attorneys of record Withdrawal of Exhibits due by 3/28/2007. (Attachments: # 1 receipt) (ljf, ) (Entered: 03/07/2007)
168 MANDATE of USCA as to 147 Notice of Appeal filed by Dial Corporation, (gk, ) (Entered: 02/02/2007)
167 Courtesy Copy of Appeal Order - Order re: Costs on Appeal (gk, ) (Entered: 01/08/2007)
166 Courtesy Copy of Appeal Order- Opinion (mandate to issue at a later date) (gk, ) (Entered: 01/08/2007)
165 TRANSCRIPT of Proceedings held on 08/20/04 before Judge Ronald E. Longstaff. Court Reporter: Jackie M. Sinnott. Page No(s).: 1-62. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (don, ) (Entered: 01/27/2006)
164 TRANSCRIPT of Proceedings held on 02/28/05 Telephone hearing before Judge Ronald E. Longstaff. Court Reporter: Eileen Hicks. Page No(s).: 1-36. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (don, ) (Entered: 01/19/2006)
163 TRANSCRIPT of Proceedings held on 8/25/04 before Judge Ronald E Longstaff. Court Reporter: Theresa Kenkel. Page No(s).: 626-777 Volume VI. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Entered: 01/13/2006)
162 TRANSCRIPT of Proceedings held on 8/20/04 before Judge Ronald E Longstaff. Court Reporter: Jackie M Sinnott. Page No(s).: 595-625 Volume V. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Entered: 01/13/2006)
161 TRANSCRIPT of Proceedings held on 8/19/04 before Judge Ronald E Longstaff. Court Reporter: Jackie M Sinnott. Page No(s).: 494-594 Volume IV. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Entered: 01/13/2006)
160 TRANSCRIPT of Proceedings held on 8/18/04 before Judge Ronald E Lonsgtaff. Court Reporter: Jackie M Sinnott. Page No(s).: 275-493 Volume III. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Entered: 01/13/2006)
159 TRANSCRIPT of Proceedings held on 8/17/04 before Judge Ronald E Longstaff. Court Reporter: Jackie M Sinnott. Page No(s).: 102-274 Volume II. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Entered: 01/13/2006)
158 TRANSCRIPT of Proceedings held on 8/16/04 before Judge Ronald E Longstaff. Court Reporter: Jackie M Sinnott. Page No(s).: 1-101 Volume I. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS

4 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

12/21/2005
12/13/2005
12/13/2005
12/06/2005 12/06/2005 12/06/2005 12/05/2005
12/05/2005
12/02/2005 12/02/2005 12/01/2005
11/25/2005 11/25/2005 11/25/2005 11/23/2005 11/17/2005

LOCATED IN THE CLERK'S OFFICE. (gk, ) (Entered: 01/13/2006)
157 ORDER granting 141 motion to stay enforcement of judgment and to waive appeal bond. Entered by Chief Judge Ronald E. Longstaff on 12/21/2005. (llc, ) (Entered: 12/21/2005)
156 USCA Scheduling Order as to 152 Notice of Cross Appeal filed by Equal Employment Opportunity Commission,. Transcript if necessary 1/18/06 (don, ) (Entered: 12/13/2005)
155 USCA Case Number 05-4311 for 152 Notice of Cross Appeal filed by Equal Employment Opportunity Commission,. Main number 05-4183 (don, ) (Entered: 12/13/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 152 Notice of Cross Appeal, sent electroniclly (don, ) (Entered: 12/06/2005)
*** COA BATCH RECEIPT of Notice of Appeal and related supporting documents sent on: Tue Dec 6 11:16:20 CST 2005 (don, ) (Entered: 12/06/2005)
154 NOTICE: Supplement for Cross-Appeal (don, ) (Entered: 12/06/2005)
153 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 152 Notice of Cross Appeal With Appeal Form A attached (Attachments: # 1 Appeal Form A)(Kamp, Jean) (Entered: 12/05/2005)
152 NOTICE OF CROSS APPEAL as to 137 Order by Equal Employment Opportunity Commission. (Kamp, Jean) Modified on 12/6/2005 Government filed appeal, fee waived. (don, ). (Entered: 12/05/2005)
151 USCA Scheduling Order as to 147 Notice of Appeal filed by Dial Corporation,. Transcrip 1/9/06 (gk, ) (Entered: 12/02/2005)
150 USCA Case Number 05-4183 for 147 Notice of Appeal filed by Dial Corporation,. (gk, ) (Entered: 12/02/2005)
149 TRANSCRIPT of Proceedings held on 8/11/04 before Judge Ronald E Longstaff. Court Reporter: Theresa Kenkel. Page No(s).: 1-31. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Entered: 12/02/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 147 Notice of Appeal NOA sent electronticlly. (don, ) (Entered: 11/25/2005)
*** COA BATCH RECEIPT of Notice of Appeal and related supporting documents sent on: Fri Nov 25 14:29:03 CST 2005 (don, ) (Entered: 11/25/2005)
148 NOTICE: NOA Supplement (don, ) (Entered: 11/25/2005)
147 NOTICE OF APPEAL by Dial Corporation. (Attachments: # 1 # 2 # 3)(Joensen, Thomas) (Entered: 11/23/2005)
146 TRANSCRIPT of Proceedings held on 09/06/05 before Judge Ronald E. Longstaff. Court Reporter: Ann Moyna. Page No(s).: 1-30. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (don, ) (Entered: 11/17/2005)

5 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

11/08/2005 11/02/2005 10/31/2005 10/14/2005 10/13/2005 10/12/2005 09/29/2005 09/29/2005 09/14/2005 07/27/2005 06/29/2005
06/27/2005 06/13/2005 06/10/2005

145 REPLY Memorandum in Support of Motion to Stay Enforcement of Judgment re 141 MOTION to Stay Execution and Waive Appeal Bond filed by Dial Corporation. (Joensen, Thomas) (Entered: 11/08/2005)
144 STIPULATION Concerning Plaintiff's Bill of Costs and Stay of Execution of Those Costs by Dial Corporation. (Joensen, Thomas) (Entered: 11/02/2005)
143 BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO STAY ENFORCEMENT OF JUDGMENT AND TO WAIVE APPEAL BOND. (Tyndall, Brian) (Entered: 10/31/2005)
142 MOTIONS REFERRAL - NO DOCUMENT - 141 MOTION to Stay Execution and Waive Appeal Bond REFERRED to Judge Ronald E. Longstaff. (don, ) (Entered: 10/14/2005)
141 MOTION to Stay Execution and Waive Appeal Bond by Dial Corporation. Responses due by 10/31/2005 (Attachments: # 1 # 2 # 3 # 4)(Joensen, Thomas) (Entered: 10/13/2005)
140 BILL OF COSTS by Equal Employment Opportunity Commission. Deadline for Objections to Bill of Costs set for 10/31/2005. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Tyndall, Brian) (Entered: 10/12/2005)
139 JUDGMENT in favor of Plaintiff against Defendant . Entered by Marjorie Krahn, Clerk on 9/29/2005. (don, ) (Entered: 09/29/2005)
138 ORDER FOR JUDGMENT. See Order for particulars. The Clerk is directed to enter judgment. Entered by Chief Judge Ronald E. Longstaff on 9/29/2005. (dsg) Modified on 9/29/2005 change code to Opinion(don, ). (Entered: 09/29/2005)
137 ORDER resolving outstanding issues. Entered by Chief Judge Ronald E. Longstaff on 9/14/2005. (llc, ) (Entered: 09/14/2005)
136 STATUS REPORT Re proposed judgment by Equal Employment Opportunity Commission. (Powers, Deborah) (Entered: 07/27/2005)
135 TEXT ORDER. On June 29, 2005, the Court received a telephone call from counsel for EEOC requesting a hearing on the remaining issues. The Court notes that the call was received less than 48 hours after the Order of June 27, 2005, encouraging the parties to resolve the remaining issues without the Court's involvement. If the parties can certify to the Court that they attempted in good faith to resolve the remaining issues then the Court will schedule a hearing. The parties are directed to submit a joint status report, or preferably, a proposed form of judgment within 30 days from the date of the original Order. Entered by Chief Judge Ronald E. Longstaff on 6/29/2005. (llc, ) (Entered: 06/29/2005)
134 ORDER Regarding Damages. Entered by Chief Judge Ronald E. Longstaff on 6/27/2005. (llc, ) (Entered: 06/27/2005)
133 Plaintiff's responsive brief 131 (Exhibits entered at #131). (Attachments: # 1 Exhibit letter to clerk re filing error)(Powers, Deborah) Modified on 6/13/2005 per KW (sk, ). (Entered: 06/13/2005)
132 Defendant's responsive brief filed by Dial Corporation. Replies due by 6/22/2005. (Driscoll, Kevin) Modified on 6/13/2005 per KW (sk, ). (Entered:

6 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

06/10/2005 05/26/2005 05/26/2005
05/26/2005 05/25/2005 05/25/2005 05/25/2005 05/24/2005 05/24/2005 05/24/2005 05/09/2005
05/09/2005
04/26/2005
04/12/2005 04/04/2005

06/10/2005)
131 EXHIBITS to plaintiffs responsive brief at #133 . (Attachments: # 1 Exhibit Proposed Order# 2 # 3 # 4)(Powers, Deborah) Modified on 6/13/2005 per KW (sk, ). (Entered: 06/10/2005)
130 Letter from Christopher Casazza (sk, ) (Entered: 05/26/2005)
129 TEXT ORDER: ORDER granting 128 plaintiff's unresisted motion for extension of time to file responsive briefs. The deadline for filing responsive briefs is extended to June 10, 2005. Entered by Magistrate Judge Ross A. Walters on 5/26/2005. (nsr) (Entered: 05/26/2005)
128 MOTION for Extension of Time to File Responsive Briefs by Equal Employment Opportunity Commission. Responses due by 6/13/2005 (Kamp, Jean) (Entered: 05/26/2005)
127 BRIEF Corrected Post-Trial Damages Phase Issues. (Joensen, Thomas) (Entered: 05/25/2005)
126 Errata Letter to Clerk re 125 Brief/Other filed by Dial Corporation,. (Joensen, Thomas) (Entered: 05/25/2005)
125 BRIEF Post-Trial Damages Issues. (Joensen, Thomas) (Entered: 05/25/2005)
124 BRIEF Letter to Judge Longstaff re EEOC Brief on Damages, Doc. #122. (Powers, Deborah) (Entered: 05/24/2005)
123 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission (Powers, Deborah) (Entered: 05/24/2005)
122 BRIEF EEOC's Brief on Damages. (Attachments: # 1 Exhibit Exhibit A to EEOC's Brief on Damages)(Powers, Deborah) (Entered: 05/24/2005)
121 ORDER Following Status Conference and Setting Schedule for Determination of Remaining Issues. Parties to file briefs on remaining issues by May 24, 2005. Responsive briefs, if any, shall be filed by May 31, 2005. See order for other particulars. Entered by Magistrate Judge Ross A. Walters on 5/9/2005. (nsr) (Entered: 05/09/2005)
120 Text Minute Entry for proceedings held before Magistrate Judge Ross A. Walters: Scheduling Conference held on 5/9/2005. Counsel appeared by telephone. Schedule set for briefing of remaining issues. Separate order to follow. (klw) (Entered: 05/09/2005)
119 ORDER setting telephonic conference to discuss scheduling. Scheduling conference to be held by telephone conference call on 5/9/2005 at 10:30 a.m. before Magistrate Judge Ross A. Walters. Conference call to be placed by counsel for plaintiff. (nsr) (Entered: 04/26/2005)
118 ORDER granting 116 motion to expedite and resolving pending issues. Entered by Chief Judge Ronald E. Longstaff on 4/12/2005. (llc, ) (Entered: 04/12/2005)
117 MOTIONS 116 MOTION to Expedite Pending Disparate Impact Remedy Issues REFERRED to Judge Judge Longstaff. (sk, ) (Entered: 04/04/2005)

7 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

04/01/2005
03/28/2005 03/28/2005 03/28/2005 03/14/2005 03/14/2005 02/28/2005 02/28/2005
02/04/2005 02/03/2005
02/03/2005
10/20/2004 10/12/2004
09/30/2004 09/30/2004 09/30/2004
09/24/2004 09/24/2004

116 MOTION to Expedite Pending Disparate Impact Remedy Issues by Dial Corporation. Responses due by 4/18/2005 (Driscoll, Kevin) (Entered: 04/01/2005)
115 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 114 Notice (Other) (sk, ) (Entered: 03/29/2005)
114 NOTICE (Reply Brief regarding remedies) by Equal Employment Opportunity Commission re 110 Brief/Other (sk, ) (Entered: 03/29/2005)
113 NOTICE (Defendant's response brief regarding post-trial remedy issues) by Dial Corporation re 112 Brief/Other (sk, ) (Entered: 03/29/2005)
112 BRIEF regarding post-trial damages phase issues. (sk, ) (Entered: 03/14/2005)
110 BRIEF regarding rememdies. (sk, ) (Entered: 03/14/2005)
109 ORDER setting briefing schedule. Entered by Chief Judge Ronald E. Longstaff on 2/28/2005. (llc, ) (Entered: 02/28/2005)
108 Minute Entry for proceedings held before Judge Ronald E. Longstaff : Telephone Conference held on 2/28/2005 from 9 am to 10 am. Appearing were: Jean Kamp, Brian Tyndall, and Camille Olson. (Court Reporter Eileen Hicks.) (dsg) (Entered: 02/28/2005)
Set/Reset Hearings: Telephone Conference set for 2/28/2005 09:00 AM before Chief Judge Ronald E. Longstaff. (sk, ) (Entered: 02/04/2005)
107 ORDER on liability on disparate impact claim and setting telephone hearing on remedies for 9:00 a.m. February 28, 2005. Entered by Chief Judge Ronald E. Longstaff on 2/3/2005. (llc, ) (Entered: 02/03/2005)
106 ORDER granting 75 Motion, denying 95 Motion for Judgment as a Matter of Law. Entered by Chief Judge Ronald E. Longstaff on 2/3/2005. (llc, ) (Entered: 02/03/2005)
Judge Ross A Walters added. (sk, ) (Entered: 10/20/2004)
105 MEMORANDUM in Opposition to Motion re 95 Motion for Judgment as a Matter of Law filed by Equal Employment Opportunity Commission. Replies due by 10/22/2004. (rmj, ) (Entered: 10/19/2004)
104 TRIAL EXHIBIT LIST AND WITNESS LIST by defendant regarding first segment of trial concluding 8/23/04 (rmj) (Entered: 09/30/2004)
103 TRIAL EXHIBIT LIST AND WITNESS LIST by plaintiff regarding first segment of trial concluding 8/23/04 (rmj) (Entered: 09/30/2004)
102 JOINT TRIAL EXHIBIT LIST AND WITNESS LIST by plaintiff EEOC, defendant Dial Corporation pertaining to first segment of trial concluding 8/23/04 (rmj) (Entered: 09/30/2004)
101 PARTIAL TRIAL TRANSCRIPT filed from 8/19/04; Jackie M. Sinnott court reporter; pgs 1-101 (rmj) (Entered: 09/27/2004)
100 BRIEF FILED by defendant [91-1] regarding its position regarding back pay remedy as directed by 9/10/04 order (rmj) (Entered: 09/27/2004)

8 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

09/24/2004 09/24/2004 09/24/2004 09/24/2004 09/24/2004 09/24/2004 09/24/2004 09/24/2004 09/10/2004
09/09/2004
09/08/2004 09/01/2004 09/01/2004 09/01/2004 08/25/2004 08/25/2004 08/25/2004 08/25/2004
08/25/2004

99 APPENDIX filed by defendant [97-1] re: its Memorandum of Law with respect to the Disparate Impact Claim (rmj) (Entered: 09/27/2004)
98 PROPOSED Findings of Fact with respect to Disparate Impact Claim submitted by defendant as directed in 9/10/04 Order [91-1] (rmj) (Entered: 09/27/2004)
97 MEMORANDUM OF LAW/BRIEF FILED by defendant [91-1] regarding disparate impact claim (rmj) (Entered: 09/27/2004)
96 MEMORANDUM by defendant in support [95-1] of motion for judgment as a matter of law before Judge Ronald E. Longstaff (rmj) (Entered: 09/27/2004)
95 MOTION by defendant for judgment as a matter of law before Judge Ronald E. Longstaff (rmj) (Entered: 09/27/2004)
94 APPENDIX filed by plaintiff EEOC [92-1] re: document proposed finding of fact (bp) (Entered: 09/24/2004)
93 MEMORANDUM by plaintiff EEOC in support [92-1] of document proposed finding of fact (bp) (Entered: 09/24/2004)
92 PROPOSED EEOC Proposed finding of fact submitted by plaintiff EEOC (bp) (Entered: 09/24/2004)
91 ORDER FOLLOWING STATUS CONFERENCE by Magistrate Judge Ross A. Walters re present briefing schedule concerning the disparate impact claim and dft's Rule 50 motion; SEE ORDER FOR SPECS (cc: all counsel) (rmj) (Entered: 09/10/2004)
90 CLERK'S COURT MINUTES: courtroom clerk: Kathleen Wade; court reporter: none; Status conference regarding post trial submissions (bp) (Entered: 09/09/2004)
89 TRANSCRIPT filed partial trial from 08/17/04 page 1-29 (don) (Entered: 09/08/2004)
88 TRANSCRIPT filed re: Thursday 08/19/04 hearing (fm) (Entered: 09/02/2004)
87 TRANSCRIPT filed re: Tuesday 08/17/04 hearing (fm) (Entered: 09/02/2004)
86 TRANSCRIPT filed re: Monday 08/16/04 hearing (fm) (Entered: 09/02/2004)
85 Trial WITNESS list from 8/25/04 proceeding re damages (rmj) (Entered: 09/02/2004)
84 VERDICT for plaintiff against defendant re amount of damages (rmj) (Entered: 09/02/2004)
83 TRIAL JURY INSTRUCTIONS re amount of damages (rmj) (Entered: 09/02/2004)
78 CLERK'S COURT MINUTES: Seventh day of jury trial; Resumed with jury on damages issue; verdict rendered; courtroom clerk: Shirley Dooley; court reporter: Teresa Kenkel (rmj) Modified on 08/26/2004 (Entered: 08/26/2004)
77 ORDER FOR TELEPHONIC STATUS CONFERENCE by Magistrate Judge Ross A. Walters; Status Cnf to discuss issues in connection with the remainder of

9 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

08/24/2004 08/24/2004 08/23/2004 08/23/2004 08/23/2004 08/23/2004 08/23/2004
08/20/2004
08/19/2004 08/19/2004
08/18/2004
08/17/2004
08/16/2004 08/16/2004
08/16/2004
08/13/2004

the case Status hearing (MAG) Walters 9/9/04 @ 3:00; said call to be placed by Plf's counsel (cc: all counsel) (rmj) (Entered: 08/25/2004)
76 PROPOSED jury instructions and verdict form submitted by defendant re individual claimants' damages [74-1] (rmj) (Entered: 08/24/2004)
75 MOTION by defendant to exclude compensatory damage claims before Judge Ronald E. Longstaff (rmj) (Entered: 08/24/2004)
82 VERDICT for plaintiff EEOC against defendant Dial Corporation; [Jury to return to deliberate re damages on 8/25/05] (rmj) (Entered: 08/26/2004)
81 TRIAL JURY INSTRUCTIONS (rmj) (Entered: 08/26/2004)
80 JURY QUESTION NO. 2 re interrogatories on verdict form AND ANSWER FROM COURT (rmj) (Entered: 08/26/2004)
79 JURY QUESTION NO. 1 re video AND ANSWER FROM THE COURT (rmj) (Entered: 08/26/2004)
74 CLERK'S COURT MINUTES: Sixth day of jury trial; Verdict rendered by jury; Verdict in favor of Plf, Jury excused to return 8/25/04 @ 9:00; courtroom clerk: Shirley Dooley; court reporter: Jackie Sinnott (rmj) (Entered: 08/24/2004)
73 CLERK'S COURT MINUTES: Fifth day of jury trial; jury instructions, final arguments, Jury commences deliberations; courtroom clerk: Pat Bridges; court reporter: Jackie Sinnott (rmj) Modified on 08/23/2004 (Entered: 08/23/2004)
72 Proposed AMENDMENT by defendant to [53-1] to proposed jury instructions (rmj) Modified on 08/20/2004 (Entered: 08/20/2004)
71 CLERK'S COURT MINUTES: Fourth day of jury trial, Dft rests, Plf presents rebuttal evidence, Plf rests. Courtroom clerk: Pat Bridges; court reporter: Jackie Sinnott; (rmj) (Entered: 08/20/2004)
70 CLERK'S COURT MINUTES: Third day of jury trial, Plf rests, Dft begins its evidence; courtroom clerk: Pat Bridges; court reporter: Jackie Sinnott (rmj) (Entered: 08/19/2004)
68 CLERK'S COURT MINUTES: Second day of jury trial; Plf continues with its evidence; courtroom clerk: Pat Bridges; court reporter: Jackie Sinnott; (rmj) (Entered: 08/18/2004)
69 JURY CHALLENGE SHEET (rmj) (Entered: 08/18/2004)
67 MOTION by defendant to withdraw attorney and ORDER granting motion [67-1] attorney John A Kuhl for Dial Corporation termed /s/ JRR, Clerk (cc: all counsel) (rmj) (Entered: 08/17/2004)
66 CLERK'S COURT MINUTES: courtroom clerk: Pat Bridges; court reporter: Jackie Sinnott; Day One of jury trial, Plf presents evidence (rmj) (Entered: 08/17/2004)
65 ORDER by Judge Ronald E. Longstaff denying Dft's motion to dismiss claims for compensatory and punitive damages [54-1], denying in part and granting in part Dft's motion in limine to bar witnesses [51-1] Telephone Hearing HELD (cc: all counsel) (rmj) (Entered: 08/13/2004)

10 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

08/12/2004 08/09/2004 08/09/2004 08/09/2004 08/06/2004
08/05/2004 08/05/2004 08/04/2004 08/04/2004
08/03/2004 08/03/2004 08/02/2004 08/02/2004 08/02/2004 08/02/2004 07/27/2004

64 ATTORNEY APPEARANCE for plaintiff by Deborah J Powers (rmj) (Entered: 08/12/2004)
63 ATTORNEY APPEARANCE for defendant Dial Corporation by Kevin Driscoll (fm) (Entered: 08/10/2004)
62 REPLY by defendant re [51-1] motion in limine to bar witnesses before Judge Ronald E. Longstaff (rmj) (Entered: 08/09/2004)
61 REPLY by defendant re [54-1] motion to dismiss claims for compensatory and punitive damages before Judge Ronald E. Longstaff (rmj) (Entered: 08/09/2004)
60 ORDER by Judge Ronald E. Longstaff re [54-1] [51-1]; All pending motions shall come on for telephonic hearing; The Court will address remaining procedural issues at that time Telephone Hearing 8/11/04 @ 9:30 (cc: all counsel) (rmj) (Entered: 08/06/2004)
59 RESISTANCE by plaintiff to motion to dismiss claims for compensatory and punitive damages before Judge Ronald E. Longstaff [54-1] (rmj) (Entered: 08/05/2004)
58 RESISTANCE by plaintiff to motion in limine to bar witnesses before Judge Ronald E. Longstaff [51-1] (rmj) (Entered: 08/05/2004)
57 ORDER ON FINAL PRETRIAL CONFERENCE by Magistrate Judge Ross A. Walters re [56-2] order; trial issues addressed [See order] (cc: all counsel) (rmj) Modified on 08/05/2004 (Entered: 08/05/2004)
56 ORDER FOLLOWING FINAL PRETRIAL CONFERENCE by Magistrate Judge Ross A. Walters The amended Proposed Final Pretrial Order has been approved and will be filed separately Trial scheduled 8/16/04 in DSM [See Order] (cc: all counsel) (rmj) (Entered: 08/04/2004)
55 MEMORANDUM by defendant in support [54-1] of motion to dismiss claims for compensatory and punitive damages before Judge Ronald E. Longstaff (rmj) (Entered: 08/03/2004)
54 MOTION by defendant to dismiss claims for compensatory and punitive damages before Judge Ronald E. Longstaff (rmj) (Entered: 08/03/2004)
53 PROPOSED JURY INSTRUCTIONS submitted by defendant Dial Corporation (bp) (Entered: 08/02/2004)
52 TRIAL briefs submitted by defendant Dial Corporation (bp) (Entered: 08/02/2004)
51 MOTION by defendant Dial Corporation in limine to bar witnesses before Judge Ronald E. Longstaff (bp) (Entered: 08/02/2004)
50 PROPOSED VOIR DIRE submitted by defendant Dial Corporation (bp) (Entered: 08/02/2004)
49 ORDER granting motion for attorney Camille A Olson, Chicago, IL to appear pro hac vice /s/ Clerk [48-1] (cc: all counsel) (rmj) (Entered: 07/27/2004)

11 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

07/27/2004 07/21/2004
06/30/2004 06/25/2004
06/04/2004 06/04/2004 05/27/2004 05/27/2004 05/13/2004 05/13/2004 05/13/2004 05/13/2004 05/13/2004

48 MOTION by defendant for attorney Camille A Olson, Chicago, IL to appear pro hac vice before Clerk (rmj) (Entered: 07/27/2004)
47 ORDER by Judge Ronald E. Longstaff denying motion to strike portions of Dft's Appendix of Exhibits in Support of its Opposition to Plf's Motion for Partial Summary Judgment [24-1] [39-1], denying motion for partial summary judgment [21-1], denying motion for partial summary judgment [18-1] see order for specs. (cc: all counsel) (bp) (Entered: 07/21/2004)
46 ORDER CONTINUING STATUS CONFERENCE TIME by Magistrate Judge Ross A. Walters re [45-2] order Status hearing (MAG) 7/1/04 @ 1:30; Said call to be placed by plf's counsel (cc: all counsel) (rmj) (Entered: 06/30/2004)
45 ORDER by Magistrate Judge Ross A. Walters; final pretrial conference is continued until August 3, 2004 at 9:00am. Call to be placed by counsel for plaintiff. The Court will conduct a status conference on July 1, 2004 at 11:00am by telephone call to be placed by counsel for plaintiff. see order for specs. ; Final pretrial cnf (MAG) 08/03/04 at 9:00am ; Status hearing (MAG) 07/01/04 at 11:00am (cc: all counsel) (bp) (Entered: 06/25/2004)
44 DECLARATION by plaintiff of Jean P. Kamp [43-1] re reply (rmj) (Entered: 06/04/2004)
43 REPLY by plaintiff re [41-1] its Motion to Strike portions of Dft's Appendix of Exhibits re Motion for Partial Summary Judgment [24-1] (rmj) (Entered: 06/04/2004)
42 DECLARATION of Wilda Lampe by defendant Dial Corporation (bp) (Entered: 05/27/2004)
41 RESISTANCE/RESPONSE by defendant Dial Corporation to motion to strike portions of Dft's Appendix of Exhibits in Support of its Opposition to Plf's Motion for Partial Summary Judgment [24-1] before Judge Ronald E. Longstaff [39-1] (bp) (Entered: 05/27/2004)
40 MEMORANDUM by plaintiff EEOC in support [39-1] of motion to strike portions of Dft's Appendix of Exhibits in Support of its Opposition to Plf's Motion for Partial Summary Judgment [24-1] before Judge Ronald E. Longstaff (rmj) (Entered: 05/13/2004)
39 MOTION by plaintiff EEOC to strike portions of Dft's Appendix of Exhibits in Support of its Opposition to Plf's Motion for Partial Summary Judgment [24-1] before Judge Ronald E. Longstaff (rmj) (Entered: 05/13/2004)
38 REPLY by plaintiff EEOC re [34-1] Dft's Response to Statement of Material Facts (rmj) (Entered: 05/13/2004)
37 STATEMENT-TABLE OF CONTENTS AND DECLARATION OF JEAN P. KAMP by plaintiff EEOC [18-1] in support of motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 05/13/2004)
36 REPLY MEMORANDUM by plaintiff EEOC re [18-1] motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 05/13/2004)

12 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

05/07/2004
05/07/2004 05/06/2004 05/05/2004
04/27/2004 04/27/2004 04/27/2004 04/27/2004
04/27/2004 04/27/2004
04/26/2004 04/01/2004 04/01/2004
04/01/2004 04/01/2004 04/01/2004
04/01/2004

35 REPLY by defendant Dial Corporation re [30-1] Plf's Response to LR 56.1 Statement of Material Facts in support of Dft's motion for Partial Summary Judgement [23-1] (rmj) (Entered: 05/07/2004)
34 RESPONSE by defendant Dial Corporation [31-1] re: Plf's LR 56.1 Statement of Add'l Material Facts [25-1] (rmj) (Entered: 05/07/2004)
33 MEMORANDUM by defendant in support [21-1] of motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 05/06/2004)
32 MOTION by EEOC to extend time to file a Reply in support of its motion for partial summary judgment and ORDER granting motion [32-1] /s/ JRR, Clerk; New ddl 5/13/04 (cc: all counsel) (rmj) (Entered: 05/05/2004)
31 STATEMENT OF ADDITIONAL MATERIAL FACTS by plaintiff EEOC (bp) (Entered: 04/27/2004)
30 REPLY by plaintiff EEOC re [23-1] statement of material facts (bp) (Entered: 04/27/2004)
29 DECLARATION OF JEAN P. KAMP by plaintiff EEOC [28-1] re memorandum (bp) (Entered: 04/27/2004)
28 MEMORANDUM by plaintiff EEOC in opposition to motion for partial summary judgment before Judge Ronald E. Longstaff [21-1] (bp) (Entered: 04/27/2004)
26 REPLY by defendant Dial Corporation re [23-1] statement of undisputed material facts (bp) Modified on 04/27/2004 (Entered: 04/27/2004)
25 MEMORANDUM by defendant Dial Corporation in opposition to motion for partial summary judgment before Judge Ronald E. Longstaff [21-1] (bp) Modified on 04/27/2004 (Entered: 04/27/2004)
27 APPENDIX filed by defendant Dial Corporation [25-1] re: memorandum (bp) (Entered: 04/27/2004)
24 APPENDIX of Exhibits filed by defendant [21-1] re: motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 04/01/2004)
23 LOCAL RULE 56.1 STATEMENT Of Material Facts by defendant [21-1] in support of motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 04/01/2004)
22 MEMORANDUM by defendant in support [21-1] of motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 04/01/2004)
21 MOTION by defendant Dial Corporation for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 04/01/2004)
20 STATEMENT Of Undisputed Material Facts by plaintiff [18-1] in support of motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 04/01/2004)
19 MEMORANDUM by plaintiff EEOC in support [18-1] of motion for partial summary judgment before Judge Ronald E. Longstaff [NO IMAGE: PLEADING GREATER THAN 200 pgs per Local Rules] (rmj) (Entered: 04/01/2004)

13 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

04/01/2004 02/12/2004 02/09/2004 09/02/2003
08/29/2003 06/24/2003
06/20/2003
05/20/2003 05/07/2003 01/27/2003
01/22/2003
01/16/2003 01/16/2003 12/06/2002

18 MOTION by plaintiff EEOC for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 04/01/2004)
17 ORDER EXTENDING DISCOVERY DDL AND DISPOSITIVE MOTIONS DDL by Magistrate Judge Ross A. Walters Dispositive Motion ddl set for 3/19/04; Discovery ddl 3/19/04 (cc: all counsel) (rmj) (Entered: 02/13/2004)
REMARK; Unopposed motion to extend discovery and dispositive motion ddls sent to RAW this date (rmj) (Entered: 02/09/2004)
16 MOTION by plaintiff EEOC, defendant Dial Corporation to extend discovery deadlines and ORDER by Magistrate Judge Ross A. Walters granting motion [16-1], ; Dispositive Motion ddl set for 2/15/04 ; Discovery ddl 12/31/03 (cc: all counsel) (bp) (Entered: 09/02/2003)
REMARK: Stipulated/unopposed motion and order regarding discovery schedule sent to DSM this date (rmj) (Entered: 08/29/2003)
15 ORDER by Magistrate Judge Ross A. Walters allowing withdrawal of motion to compel [14-1], [withdrawing motion to compel responses to Interrogatories and production of docs] [12-1], granting motion to extend time for expert disclosure [see order] [13-1] (cc: all counsel) (rmj) (Entered: 06/24/2003)
14 MOTION by plaintiff, defendant to withdraw motion to compel before Magistrate Judge Ross A. Walters , to amend Scheduling Order to an add'l 60 for expert reports before Magistrate Judge Ross A. Walters (rmj) (Entered: 06/20/2003)
13 MOTION by defendant Dial Corporation to extend time to respond to plf's motion to compel and ORDER granting motion [13-1]; New ddl 6/20/03 (cc: all counsel) (rmj) (Entered: 05/20/2003)
12 MOTION by plaintiff EEOC to compel responses to Interrogatories and production of docs before Magistrate Judge Ross A. Walters (rmj) (Entered: 05/07/2003)
11 ORDER SCHEDULING TRIAL and FINAL PRETRIAL CONFERENCE ; 4-day jury trial 8/16/04 @ 9:00; Telephonic Final pretrial cnf (MAG) Walters 7/1/04 @ 10:00; said call to be placed by plf's counsel /s/ JRR, Clerk (cc: all counsel) (rmj) (Entered: 01/27/2003)
10 SCHEDULING ORDER by Magistrate Judge Ross A. Walters; dispositive mtn ddl set 12/15/03; Case ready for trial as of 4/16/04; estimated length of trial 4-plus day jury trial; Discovery ddl set for 11/14/03 (cc: all counsel) (rmj) (Entered: 01/22/2003)
PROPOSED SCHEDULING ORDER SUBMITTED by plaintiff, defendant; Report not adopted, referred to Magistrate Judge Walters. (rmj) (Entered: 01/16/2003)
9 ATTORNEY APPEARANCE for plaintiff EEOC by DENNIS R MCBRIDE, Milwaukee, WI (rmj) (Entered: 01/16/2003)
8 ANSWER by defendant Dial Corporation complaint [1-1] (rmj) (Entered: 12/06/2002)

14 of 15

8/1/2007 11:21 AM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?545618252417616-L_3...

11/13/2002 10/25/2002
10/25/2002 10/25/2002 10/25/2002 10/25/2002 09/24/2002

7 STATEMENT OF INTEREST by defendant Dial Corporation (rmj) (Entered: 11/13/2002)
6 ORDER granting motion for attorney Michael A. Warner to appear pro hac vice [5-1], granting motion for attorney Laura A. Lindner, Chicago, IL to appear pro hac vice [4-1], granting motion for attorney Christopher L. Casazza, Chicago, IL to appear pro hac vice [3-1] /s/ JRR, Clerk(cc: all counsel) (rmj) (Entered: 10/25/2002)
5 MOTION by defendant Dial Corporation for attorney Michael A. Warner to appear pro hac vice (rmj) (Entered: 10/25/2002)
4 MOTION by defendant Dial Corporation for attorney Laura A. Lindner, Chicago, IL to appear pro hac vice (rmj) (Entered: 10/25/2002)
3 MOTION by defendant Dial Corporation for attorney Christopher L. Casazza, Chicago, IL to appear pro hac vice (rmj) (Entered: 10/25/2002)
2 ATTORNEY APPEARANCE for defendant Dial Corporation by John A. Kuhl, Stanely, Lande & Hunter, Davenport, IA (rmj) (Entered: 10/25/2002)
1 COMPLAINT (Summons not issued); Rule 16 Dismissal Notice set for 1/22/03; Dismissal ddl (service) set for 1/22/03 (rmj) (Entered: 09/24/2002)

PACER Service Center

Transaction Receipt

08/01/2007 11:21:03

PACER Login:

hs0328 Client eeoc Code:

Description:

Docket Report

Search Criteria:

3:02-cv-10109-REL-RAW Start date: 1/1/1970 End date: 8/1/2007

Billable Pages:

9

Cost: 0.72

15 of 15

8/1/2007 11:21 AM

about:blank

1 of 1

8/1/2007 11:21 AM

 
 05-4183 Docket

https://ecf.ca8.uscourts.gov/cmecf/servlet/TransportRoom

Court Home Case Search XML ASCII

Logout Help

General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 05-4183 Nsuit: 1442 Jobs EEOC v. Dial Corporation Appeal From: U.S. District Court for the Southern District of Iowa - Davenport

Filed: 11/29/2005 Termed: 11/17/2006

Case Type Information: 1) Civil 2) United States as a party 3) null

Originating Court Information: District: 0863-3 : 3:02-cv-10109 REL Court Reporter: Jackie Sinnott, Court Reporter Trial Judge: Ronald E. Longstaff, U.S. District Judge Date Filed: 09/24/2002 Date Order/Judgment: 09/29/2005

Date NOA Filed: 11/23/2005

Prior Cases: None

Current Cases: Lead
Cross-appeal 05-4183

Member 05-4311

Start

End

12/09/2005

Equal Employment Opportunity Commission Plaintiff - Appellee

Rosemary Fox Direct: 414-297-4188 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Supervisory Trial Attorney 310 W. Wisconsin Avenue Suite 800 Milwaukee, WI 53203-2292
Jean P. Kamp Direct: 414-297-4188 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Regional Attorney 301 W. Wisconsin Avenue Suite 800

1 of 5

8/1/2007 11:23 AM

05-4183 Docket
v. Dial Corporation
Defendant - Appellant
2 of 5

https://ecf.ca8.uscourts.gov/cmecf/servlet/TransportRoom
Milwaukee, WI 53203-2292
Susan R. Oxford [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Headquarters Firm: 202-663-4900 1801 L Street, N.W. Washington, DC 20507-0000
Deborah J. Powers Direct: 414-297-3983 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Milwaukee District Office 310 W. Wisconsin Avenue Suite 800 Milwaukee, WI 53203-2292
Kevin J. Driscoll [COR LD NTC Retained] FINLEY & ALT Firm: 515-288-0145 699 Walnut Street 1900 Hub Tower Des Moines, IA 50309-0000
Anne Duprey Direct: 312-346-8000 [COR LD NTC Retained] SEYFARTH & SHAW Firm: 312-460-5000 131 S. Dearborn Street Suite 2400 Chicago, IL 60603-0000
Thomas James Joensen [COR LD NTC Retained] FINLEY & ALT Firm: 515-288-0145 699 Walnut Street 1900 Hub Tower Des Moines, IA 50309-0000
Camille A. Olson Direct: 312-346-8000
8/1/2007 11:23 AM

05-4183 Docket

https://ecf.ca8.uscourts.gov/cmecf/servlet/TransportRoom

[COR LD NTC Retained] SEYFARTH & SHAW Firm: 312-460-5000 131 S. Dearborn Street Suite 2400 Chicago, IL 60603-0000
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellee

v. DIAL CORPORATION
Defendant - Appellant

11/29/2005 11/29/2005 11/29/2005 12/05/2005 12/07/2005 12/07/2005 12/07/2005 12/07/2005 12/09/2005
01/19/2006 01/20/2006
01/20/2006

Civil Case Docketed. Dist. Ct. Office: SI Des Moines
CERTIFIED copies notice of appeal, docket entries, Orders & Judgment filed 9/29/05 [05-4183] [1980249]
BRIEFING SCHEDULE: [05-4183] Transcript due on 1/9/06 Apndx due on 1/18/06 Aplnt brief due on 1/18/06 Aplee brief due on 2/17/06 reply brief due on 3/3/06
APPEARANCE for appellant, attorney Kevin J. Driscoll [05-4183] [1982434]
APPEARANCE for appellant, attorney Camille A. Olson [05-4183] [1983286]
APPEARANCE for appellant, attorney Anne Duprey [05-4183] [1983287]
RECORDS received: Transcript, consisting of 2 Volumes. ( 1 vol. of hearing held on 8/11/2004 and 1 vol. of hearing held on 9/6/2005) Location STL. [05-4183]
Corporate Disclosure Statement filed. Filed by Dial Corporation FOR CAL.
CROSS APPEAL BRIEFING SCHEDULE: Transcript due on 1/18/06 Appendix due on 1/30/06 Aplnt brief due on 1/30/06, Aplee/cr. Aplnt brief due on 2/27/06, Reply brief of aplnt/cr. aplee due on 3/29/06, Reply brf aplee/cr. aplnt due 4/12/06, [05-4311, 05-4183]
RECORDS received: Transcript, consisting of 6 Volumes of trial held on 8/16/2004 8/25/2004 - vols. I, II, III, IV, V, and VI. Location STL. [05-4183, 05-4311]
RECORDS received: Transcript, consisting of 5 Volumes of trial held on 8/16/2004 8/19/2004 - all volumes are labeled partial transcript of trial. Location STL. [05-4183, 05-4311]
RECORDS received: Exhibits, Located in: STL, consisting of one box containing 3 three ring binders containing Plaintiff's, Defendant's, and Joint exhibits. [ Return to the District Court at end of case] [05-4183, 05-4311]

3 of 5

8/1/2007 11:23 AM

05-4183 Docket

https://ecf.ca8.uscourts.gov/cmecf/servlet/TransportRoom

01/20/2006 01/20/2006 01/23/2006 01/26/2006 01/31/2006 02/07/2006 02/08/2006 02/22/2006 02/22/2006 03/17/2006 03/20/2006
03/30/2006 03/31/2006
04/25/2006
04/26/2006 04/28/2006 05/31/2006 06/06/2006 06/09/2006 06/13/2006

MOTION of aplnt, Dial Corporation in 05-4183, 05-4311 , for extension of time to file brief until 2/13/06 . [05-4183, 05-4311] [1999839] w/service 1/20/06
ORDER filed:granting appellant motion for extension of time to file brief [1999839-1] [1999840] in 05-4183, 05-4311 Aplnt brief now due on 2/13/06
RECORDS received: Transcript, consisting of 1 Volume of telephone hearing held on 2/28/2005. Location STL. [05-4183, 05-4311]
APPEARANCE for appellee, attorney Susan R. Oxford [05-4183] [2002827]
RECORDS received: Transcript, consisting of 1 Volume of closing arguments held on 8/20/2004. Location STL. [05-4183, 05-4311]
MOTION of aplnt, Dial Corporation in 05-4183, 05-4311 , for extension of time to file brief until 2/21/06 . [05-4183, 05-4311] [2007370] w/service 2/7/06
ORDER filed:granting appellant's motion for extension of time to file brief [2007370-1] [2007374] Aplnt brief now due on 2/21/06 in 05-4183, in 05-4311 .
BRIEF FILED - Brief of Appellant- Dial Corporation in 05-4183, 05-4311 13,967 words w/addendum 10 copies - w/service 2/21/06 w/cd . [05-4183, 05-4311] [2013525]
RECORDS received: Joint Appendix, consisting of 1 Volume 3 copies. [05-4183, 05-4311]
MOTION of aplee, EEOC in 05-4183, EEOC in 05-4311 , for extension of time to file brief until 4/10/06 . [05-4183, 05-4311] w/service 3/17/06
ORDER filed:granting appellee motion extension of time to file second brief. [2022508-1] [2022509] in 05-4183, 05-4311 Aplee/cr. aplnt brief now due on 4/10/06 in 05-4183, in 05-4311
MOTION of aplee, EEOC in 05-4183, 05-4311 , for extension of time to file brief until 4/24/06 . [05-4183, 05-4311] w/service 3/30/06
ORDER filed:granting appellee's motion extension of time to file second brief. [2027621-1] [2027623] in 05-4183, 05-4311 Aplee/cr. aplnt brief now due on 4/24/06 in 05-4183, in 05-4311
BRIEF FILED - Brief of Aplee/cr. Aplnt - EEOC in 05-4183 and 05-4311. 16496 words w/addendum - 10 copies - w/service 4/24/06 (mail). Defects: diskette does not contain body of brief [05-4183, 05-4311] [2037772]
New Diskette requested. [05-4183, 05-4311]
Corrected disk rec'd for brief of EEOC in 05-4183 and 05-4311 [05-4183, 05-4311]
BRIEF FILED - Reply Brief of Aplnt/cr. Aplee - Dial Corporation in 05-4183, 05-4311 . 13,374 words - - 10 copies - w/service 5/30/06 . w/cd [05-4183, 05-4311] [2050753]
TO SCREENING to rw. [05-4311, 05-4183]
RETURNED from Screening (20) [05-4311, 05-4183]
Brief Correction(s) received from Appellant Dial Corporation in 05-4183, 05-4311 . Correction(s): cert. of service. [05-4183, 05-4311]

4 of 5

8/1/2007 11:23 AM

05-4183 Docket

https://ecf.ca8.uscourts.gov/cmecf/servlet/TransportRoom

06/15/2006 06/15/2006 06/23/2006 07/12/2006 08/24/2006 09/25/2006
11/17/2006 11/17/2006 12/01/2006 01/03/2007 02/01/2007

MOTION of aplee, EEOC in 05-4183, 05-4311 , for extension of time to file fourth brief until 6/23/06 . [05-4183, 05-4311] w/service 6/15/06
ORDER filed:granting appellee's motion ext. of time to file fourth brief [2057195-1] [2057197] in 05-4183, 05-4311 Aplee/cr. Aplnt reply brief now due on 6/23/06 in 05-4183, in 05-4311
BRIEF FILED - Reply Brief of Aplee/cr. Aplnt - EEOC in 05-4183, 05-4311 . 6,159 words - - 10 copies - w/service 6/22/06 . w/diskette [05-4183, 05-4311] [2061278]
Corrected disk rec'd for brief of Dial Corporation in 05-4183, 05-4311 [05-4183, 05-4311]
*SET FOR ARGUMENT* - September, 2006 in St. Louis.
ARGUED AND SUBMITTED IN ST. LOUIS TO JUDGES Diana E. Murphy, Circuit Judge, David R. Hansen, Circuit Judge, William J. Riley, Circuit Judge . Camille A. Olson for Appellant Dial Corporation in 05-4183, Camille A. Olson for Appellee Dial Corporation in 05-4311 . Susan R. Oxford for Appellee EEOC in 05-4183, Susan R. Oxford for Appellant EEOC in 05-4311 . Rebuttal by: Ms. Olson . RECORDED. [05-4183, 05-4311]
THE COURT: Diana E. Murphy, David R. Hansen, William J. Riley. OPINION FILED by Diana E. Murphy, Authoring Judge PUBLISHED. [05-4183, 05-4311] [2110517]
JUDGMENT: Diana E. Murphy, David R. Hansen, William J. Riley. The judgment of the lower court is AFFIRMED and REMANDED in accordance with the opinion. [05-4183, 05-4311] [2110520]
MOTION of aplee/cross-appellant, EEOC in 05-4183/4311, to recover costs in the amount of $385.00. [05-4183, 05-4311] [2116022] w/service 11/30/06
JUDGE ORDER:Granting [2116022-2] appellee/cross-appellant motion for bill of cost filed by Appellee/Cross-Appellant EEOC. Amount of costs granted: $385.00 [3264294] [05-4183, 05-4311]
MANDATE ISSUED. [05-4183, 05-4311]

PACER Service Center

Transaction Receipt

08/01/2007 11:23:23

PACER Login: hs0328

Client Code: eeoc

Description: Full Docket Report Search Criteria: 05-4183

Billable Pages: 2

Cost:

0.16

5 of 5

8/1/2007 11:23 AM

 
 DIAL ORDERED TO PAY MORE THAN $3 MILLION IN EEOC SE...

http://www.eeoc.gov/press/9-29-05.html

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE September 29, 2005

Contact:

Jean P. Kamp Regional Attorney EEOC - Milwaukee District Office (414) 297-1860

Brian C. Tyndall Senior Trial Attorney (414) 297 - 1130

Deborah Powers Senior Trial Attorney (414) 297-3983 TDD: (414) 297 - 1115

DIAL ORDERED TO PAY MORE THAN $3 MILLION IN EEOC SEX DISCRIMINATION CASE

52 Women Rejected for Armour Jobs Because of Strength Test To Receive Job Offers and Back Pay
FORT MADISON, IOWA -- A federal judge has ordered the Dial Corporation to pay over $3 million to resolve a sex discrimination suit brought by the Equal Employment Opportunity Commission (EEOC) against The Dial Corporations Armour Star Meat Packing plant in Fort Madison, Iowa.
Chief Judge Ronald E. Longstaff of U.S. District Court for the Southern District of Iowa entered a judgment today providing that 52 women who were rejected for entry-level production jobs because they had failed a strength test will be offered jobs at Dial and will share approximately $3,390,000.
The EEOCs lawsuit, #3:02-CV-10109, filed in September 2002, claimed that Dials use of a strength test, which required the repeated lifting of 35 pounds to a height of 65 inches, discriminated against women, since only approximately 40% of female applicants passed the test, while virtually all male applicants passed the test. Although women had successfully performed the jobs in the sausage making department before the test was implemented in January 2000, Dial claimed that the test was necessary in order to reduce injuries.
The case was tried before a jury in August 2004, and the jury determined that Dials use of the test after April 2001 was intentionally discriminatory against women. On February 3, 2005, Judge Longstaff ruled that the test was also illegal under Title VII of the Civil Rights Act of 1964 because it had a disparate impact against female applicants and was not justified by Dials business necessity.
Each of the 52 discrimination victims has been made a job offer by Dial, and so far 14 have accepted those offers. Each of the 52 will receive back pay in amounts ranging from $2,400 to $164,500, depending on the length of time since the class member was rejected, and the amount she was able to earn at other jobs in the meantime. The judgment also provides that six of the class members will receive compensatory damages of $5,000 each as determined by the jury, and that the 12 women who were rejected because of the test after the jurys verdict will receive an additional $9,000 each.
The case was based on a charge of discrimination filed by Paula Liles in 2000. Liles alleged that she had successfully completed the seven-minute test, but was rejected because she had to, at times, stand on her tiptoes, and that she was told that she had failed because, at 5'2", she was too short.
Liles, who will receive $112,250 under the judgment, said, "I have done physical labor all of my life, and I was able to perform the job at Dial. Dial was the highest paying employer in the area, and I felt that I was being rejected because of my sex and my height. I am happy that Dial will no longer be using the test."
Jean P. Kamp, Regional Attorney for the EEOCs Milwaukee District Office, which litigates the agencys employment discrimination cases in Iowa, Wisconsin and Minnesota, said, "We are very pleased with the result, which ends the use of a test which relies upon stereotypes rather than actual ability. These 52 women have performed heavy labor and were fully qualified for these jobs, but were rejected because of unwarranted fears that they would be injured. The EEOC will challenge and combat discrimination, whether intentional or not."

1 of 2

8/1/2007 11:37 AM

DIAL ORDERED TO PAY MORE THAN $3 MILLION IN EEOC SE...

http://www.eeoc.gov/press/9-29-05.html

The Dial Corporation, headquartered in Scottsdale, Ariz., employs more than 2,300 people worldwide. It manufactures Armour and Armour Star meat products at its Fort Madison facility; it is also makes Dial soap, Purex laundry detergent and other consumer products.
The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, race, color, religion, or national origin; the Age Discrimination in Employment Act; the Equal Pay Act; prohibitions against discrimination affecting individuals with disabilities in the federal sector; sections of the Civil Rights Act of 1991; and Title I of the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in the private sector and state and local governments. Additional information about the EEOC is available its web site at www.eeoc.gov.
This page was last modified on September 29, 2005.

Return to Home Page

2 of 2

8/1/2007 11:37 AM

 
 Pre-Employment Test by Dial Corp. Discriminates Against Women, Cou...

http://www.eeoc.gov/press/2-8-05.html

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE February 8, 2005

CONTACT: Jean P. Kamp Milwaukee Regional Attorney (414) 297-1860
Brian Tyndall Senior Trial Attorney (414) 297-1130 TTY: (414) 297-1115

PRE-EMPLOYMENT TEST BY DIAL CORP. DISCRIMINATES AGAINST WOMEN, COURT RULES IN EEOC CASE

DES MOINES, Iowa - A federal district court in Iowa has ruled that a pre-employment strength test used by The Dial Corporation at its Armour meat packing plant in Fort Madison, Iowa, has a disparate impact against women, and is therefore illegal under Title VII of the Civil Rights Act of 1964, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.
Chief Judge Ronald E. Longstaff of the U.S. District Court, Southern District of Iowa, ruled on February 3 in EEOC v. The Dial Corporation (# 3-02-CV-10109) that Dial's "work tolerance test" (WTS) was passed by 97% of male applicants and less than 40% of female applicants, and that Dial had failed to prove that the test was necessary for performance of entry-level jobs in the plant's sausage- making department. The court also approved the finding of a jury, following a trial in August 2004, that Dial's use of the test intentionally discriminated against women.
In Judge Longstaff's words: "Dial has failed to fulfill its burden to show it had a 'compelling need'for implementation of the WTS, and that other, non-discriminatory mechanisms namely, many of the same safety programs actually implemented by Dial could not produce the same results."
The court's decision rejects the validity of the strength test, which was implemented by Dial in January 2000. Prior to the test, nearly half of the people hired for entry-level jobs in the sausage department of the plant had been female. The job is physically demanding, requiring the repetitive lifting of a 35-pound rod of sausages to a height of approximately 65 inches.
Although women had been successfully performing the job for years, Dial argued that the test was necessary to reduce injuries. Judge Longstaff rejected that argument, noting that women had been no more likely than men to be injured prior to the use of the test, that the test was more difficult than the job, and that an overall reduction in injuries was likely related to other safety initiatives implemented by Dial. The court will now consider appropriate relief for the approximately 50 women who had been rejected at the time of the trial.
Jean P. Kamp, Regional Attorney for the Milwaukee District Office of the EEOC, which litigates employment discrimination cases in Iowa, Wisconsin and Minnesota, said, "Disparate impact cases are somewhat unusual, but they are an important tool when, as here, an apparently neutral screening test excludes large numbers of women, or any other protected group, who are able to perform the job. Judge Longstaff's opinion affirms the right of women to be judged on their qualifications for the actual requirements of a job."
The case was brought in 2002 by the EEOC based on a charge of discrimination filed by Paula Liles, who applied for a position at Dial in February 2000. Ms. Liles and other unsuccessful female applicants testified at trial that they had performed heavy physical work, including lifting, in the past, and that they had met all the other job requirements and had been made conditional job offers prior to being rejected by Dial based on the work tolerance test. Ms. Liles completed the seven-minute test, but was graded as failing because of her height, which required her to go on her toes to complete the lifts to 65 inches.
The EEOC is the federal agency which enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex (including sexual harassment or pregnancy), race, color, religion, or national origin and protects employees who complain about such offenses from retaliation. The EEOC also enforces the ADEA, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963, which prohibits gender-based wage discrimination; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector; Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on the agency's web site at www.eeoc.gov.

1 of 2

8/1/2007 11:40 AM

Pre-Employment Test by Dial Corp. Discriminates Against Women, Cou... This page was last modified on February 8, 2005. Return to Home Page

http://www.eeoc.gov/press/2-8-05.html

2 of 2

8/1/2007 11:40 AM

 
 469 F.3d 735 United States Court of Appeals,
Eighth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee/Cross–Appellant, v.
DIAL CORPORATION, Appellant/Cross–Appellee.
Nos. 05–4183, 05–4311. | Submitted: Sept. 25, 2006. | Filed: Nov. 17, 2006.
Synopsis Background: Equal Employment Opportunity Commission (EEOC) brought Title VII action against employer on behalf of rejected female applicants. Following entry of jury verdict finding that employer engaged in pattern or practice of intentional discrimination and award of compensatory damages, the United States District Court for the Southern District of Iowa, Ronald E. Longstaff, J., 2005 WL 859274, denied employer’s motion for judgment as matter of law, and, 2005 WL 2839977, concluded that employer’s use of preemployment strength test had unlawful disparate impact and awarded back pay and benefits. Employer appealed from judgment, and EEOC appealed denial of back pay to one claimant.
Holdings: The Court of Appeals, Murphy, Circuit Judge, held that:
[1] jury’s finding that employer engaged in pattern or practice of intentional sex discrimination was supported by sufficient evidence;
[2] District Court did not clearly err in finding that strength test had disparate impact;
[3] District Court did not err in awarding back pay to applicants who had failed to complete strength test;
[4] District Court was not required to take into account employer’s high turnover rate in awarding back pay; and
[5] District Court reasonably did not require applicants to prove that they incurred medical expenses in order to receive medical premiums.
Affirmed.

West Headnotes (22)

[1]

Civil Rights

Sex discrimination

Jury’s finding that employer engaged in pattern or practice of intentional sex discrimination in violation of Title VII was supported by sufficient evidence, including ten standard deviations in disparity between hiring of men and women, fact that employer continued to use

1

strength test as hiring criterion despite knowing of disparity, and evidence of women and men receiving similar comments on test forms but only men receiving offers of employment. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

[2]

Federal Courts

Trial de novo

The Court of Appeals reviews a district court’s denial of a motion for judgment as a matter of law de novo, using the same standard as the district court.

[3]

Federal Courts

Judgment notwithstanding verdict

A court reviewing a denial of a motion for judgment as a matter of law must decide whether there is sufficient evidence to support the jury’s verdict when examined in the light most favorable to the verdict.

[4] Federal Civil Procedure Evidence
Judgment as a matter of law is only appropriate when there is no reasonable inference to be made from the evidence which can sustain the verdict.

[5]

Civil Rights

Motive or intent;  pretext

Civil Rights

Sex discrimination

2

A pattern or practice of intentional sex discrimination in violation of Title VII must be shown by proving regular and purposeful discrimination by a preponderance of the evidence. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

[6]

Civil Rights

Motive or intent;  pretext

Civil Rights

Sex discrimination

To demonstrate a pattern or practice of intentional sex discrimination, a Title VII plaintiff must show that more than an isolated act of discrimination occurred and that discrimination was the company’s standard operating procedure, but statistics combined with anecdotal examples of discrimination may establish a pattern or practice of regular, purposeful discrimination. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 2 Cases that cite this headnote

[7]

Civil Rights

Sex discrimination

In a Title VII action alleging a pattern or practice of intentional sex discrimination, discriminatory intent can be inferred from the mere fact of differences in treatment. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

[8]

Civil Rights

Disparate impact

Statistical disparities are significant, and thus support a finding of a pattern or practice of discrimination in hiring in a Title VII action, if the difference between the expected number and the observed number is greater than two or three standard deviations. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

3

1 Cases that cite this headnote

[9]

Civil Rights

Physical requirements or limitations

District court did not clearly err in Title VII action in finding that employer’s strength test had disparate impact on female applicants and that strength test was not necessary to establish effective and safe job performance in meat plant, where expert opined that test was more difficult than jobs themselves, injuries began to decrease before test was implemented, and injury rate for women was lower than injury rate for men in two of three years before implementation. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

[10] Civil Rights Disparate impact
Civil Rights Effect of prima facie case;  shifting burden
In a disparate impact case, once a Title VII plaintiff establishes a prima facie case the employer must show the practice at issue is related to safe and efficient job performance and is consistent with business necessity. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 2 Cases that cite this headnote
[11] Civil Rights Defenses in general
An employer using the business necessity defense to a Title VII claim must prove that the practice was related to the specific job and the required skills and physical requirements of the position. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 1 Cases that cite this headnote
4

[12] Civil Rights Educational requirements;  ability tests
Although a validity study of an employment test can be sufficient to prove business necessity in a Title VII action, it is not necessary if the employer demonstrates the procedure is sufficiently related to safe and efficient job performance. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 1 Cases that cite this headnote
[13] Civil Rights Effect of prima facie case;  shifting burden
If a Title VII defendant demonstrates business necessity, the plaintiff can still prevail by showing there is a less discriminatory alternative. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 1 Cases that cite this headnote
[14] Civil Rights Sex discrimination
District court did not improperly give employer burden of establishing that there was no less discriminatory alternative to strength test in Title VII action brought on behalf of female applicants, inasmuch as employer failed to demonstrate that test was business necessity, and Equal Employment Opportunity Commission (EEOC) thus was never required to show absence of nondiscriminatory alternative. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
[15] Civil Rights Practices prohibited or required in general;
 elements
Part of the employer’s burden to establish business necessity in a Title VII case is to demonstrate the need for the challenged
5

procedure. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
[16] Civil Rights Back pay or lost earnings
District court did not err in awarding back pay under Title VII to women applicants who had failed to complete employer’s strength test, inasmuch as finding of discrimination was based on employer’s use of test and evidence that test was more difficult than actual job, and women who were not hired because they were unable to complete test suffered losses as consequence. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
[17] Civil Rights Relief
Once an employer is found liable for a Title VII violation, the district court is obligated to grant the most complete relief possible. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
[18] Civil Rights Back pay or lost earnings
The strong presumption that an employee who has suffered discrimination in violation of Title VII should receive back pay can be overcome only if back pay would frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 1 Cases that cite this headnote
6

[19] Civil Rights Back pay or lost earnings
The trial court has broad equitable discretion to fashion back pay awards in order to make the Title VII victim whole. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 2 Cases that cite this headnote
[20] Civil Rights Measure and amount
In awarding back pay under Title VII, district court was not required to take into account employer’s high turnover rate, which purportedly suggested that applicants would not have been employed for entire back pay period if they had been hired. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 1 Cases that cite this headnote
[21] Civil Rights Back pay or lost earnings
District court reasonably did not require Title VII plaintiffs to prove that they incurred medical expenses in order to receive award of amount of medical premiums employer would have paid if it had hired them. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. 3 Cases that cite this headnote
[22] Federal Civil Procedure Employees and Employment Discrimination,
Actions Involving
Genuine issues of material fact existed as to whether employer, if it had hired female applicant, would have terminated her because of her criminal background, precluding summary judgment as to whether back pay award was appropriate under Title VII. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.
7

Attorneys and Law Firms
*738 Susan R. Oxford, Equal Employment Opportunity Commission, argued, Washington, DC, for Appellee/Cross–Appellant.
Camille A. Olson, argued, Anne Duprey (on the brief), Seyfarth & Shaw, Chicago, IL, for Appellant/Cross–Appellee.
Before MURPHY, HANSEN, and RILEY, Circuit Judges.
Opinion
MURPHY, Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) brought this sex discrimination action against The Dial Corporation under Title VII of the Civil Rights Act of 1964 on behalf of a number of women who had applied for work but were not hired. A jury found that Dial had engaged in a pattern or practice of intentional discrimination against women and awarded compensatory damages, and the district court1 concluded that Dial’s use of a preemployment strength test had an unlawful disparate impact on female applicants and awarded back pay and benefits. Dial appeals from the denial of its motion for judgment as a matter of law and from the judgment. EEOC cross appeals the *739 denial of back pay to one claimant. We remand one issue but otherwise affirm.
Dial is an international company with a plant located in Fort Madison, Iowa that produces canned meats. Entry level employees at the plant are assigned to the sausage packing area where workers daily lift and carry up to 18,000 pounds of sausage, walking the equivalent of four miles in the process. They are required to carry approximately 35 pounds of sausage at a time and must lift and load the sausage to heights between 30 and 60 inches above the floor. Employees who worked in the sausage packing area experienced a disproportionate number of injuries as compared to the rest of the workers in the plant.
Dial implemented several measures to reduce the injury rate starting in late 1996. These included an ergonomic job rotation, institution of a team approach, lowering the height of machines to decrease lifting pressure for the employees, and conducting periodic safety audits. In 2000 Dial also instituted a strength test used to evaluate potential employees, called the Work Tolerance Screen (WTS). In this test job applicants were asked to carry a 35 pound bar between two frames, approximately 30 and 60 inches off the floor, and to lift and load the bar onto these frames. The applicants were told to work at their “own pace” for seven minutes. An occupational therapist watched the process, documented how many lifts each applicant completed, and recorded her own comments about each candidate’s performance. Starting in 2001, the plant nurse, Martha Lutenegger, also watched and documented the process. From the inception of the test, Lutenegger reviewed the test forms and had the ultimate hiring authority.
For many years women and men had worked together in the sausage packing area doing the same job. Forty six percent of the new hires were women in the three years before the WTS was introduced, but the number of women hires dropped to fifteen percent after the test was implemented. During this time period the test was the only change in the company’s hiring practices. The percentage of women who passed the test decreased almost each year the test was given, with only eight percent of the women applicants passing in 2002. The overall percentage of women who passed was thirty eight percent while the men’s passage rate was ninety seven percent. While overall injuries and strength related injuries among sausage workers declined consistently after 2000 when the test was implemented, the downward trend in injuries had begun in 1998 after the company had instituted measures to reduce injuries.
One of the first applicants to take the WTS was Paula Liles, who applied to Dial in January 2000 and was not hired even though the occupational therapist who administered her test told her she had passed. She filed a discrimination complaint with the Iowa Civil Rights Commission and EEOC in August 2000. On September 24, 2002, EEOC brought this action on
8

behalf of Liles and fifty three other women who had applied to work at Dial and were denied employment after taking the WTS. Twenty four of these applicants had been unable to complete the test.
A jury trial was held in August 2004, and EEOC and Dial offered testimony by competing experts. EEOC presented an expert on industrial organization who testified that the WTS was significantly more difficult than the actual job workers performed at the plant. He explained that although workers did 1.25 lifts per minute on average and rested between lifts, applicants who took the WTS performed 6 lifts per minute on average, usually without any *740 breaks. He also testified that in two of the three years before Dial had implemented the WTS, the women’s injury rate had been lower than that of the male workers. EEOC’s expert also analyzed the company’s written evaluations of the applicants and testified that more men than women were given offers of employment even when they had received similar comments about their performance. EEOC also introduced evidence that the occupational nurse marked some women as failing despite their having completed the full seven minute test.
Dial presented an expert in work physiology, who testified that in his opinion the WTS effectively tested skills which were representative of the actual job, and an industrial and organizational psychologist, who testified that the WTS measured the requirements of the job and that the decrease in injuries could be attributed to the test. Dial also called plant nurse Martha Lutenegger who testified that although she and other Dial managers knew the WTS was screening out more women than men, the decrease in injuries warranted its continued use.
The jury was asked to decide whether Dial had engaged in a pattern or practice of intentional discrimination against female job applicants, the date on which any such discrimination began, and a question relating to damages. The jury returned its verdict on August 23, 2004. It found Dial had engaged in a pattern or practice of intentional discrimination beginning in April 2001. The jury awarded a total of $30,003 in compensatory damages to the nine claimants who testified at trial and declined to assess punitive damages. Dial moved for judgment as a matter of law, alleging there was insufficient evidence for a reasonable jury to have found intentional discrimination. The motion was denied on February 3, 2005, but the district court eliminated nominal damages awarded to two applicants who had been rejected before April 2001 (the date when Dial’s intentional discrimination began according to the jury verdict).
Following the jury trial the parties submitted additional evidence and briefs relating to the disparate impact allegations. The district court ruled on these issues in sixteen pages of detailed findings of fact and conclusions of law issued on February 3, 2005. It found that the WTS had had a discriminatory effect, that Dial had not demonstrated that the WTS was a business necessity or shown either content or criterion validity, and that Dial had not effectively controlled for other variables which may have caused the decline in injuries, including other safety measures that Dial had implemented starting in 1996.
After the court issued its findings and conclusions, Dial offered employment to all of the claimants in the spring of 2005. Further discovery and submissions followed, as well as additional briefing. The district court found that the claimants who had been unable to complete the full seven minutes of the WTS were also entitled to relief and determined the amount of back pay and interest to which each applicant was entitled. Back pay was calculated from the date the district court found the applicants should have been hired up to the date of Dial’s offer of employment, less any wages earned elsewhere during that period. Health care benefits were awarded in the amount Dial would have paid for premiums, minus any benefits the women had received in the meantime. The range of the back pay awarded to the individual applicants varied from a high of $120,236 to a low of $920, and the individual health benefits ranged from $30,385 to $882.
An additional issue was raised in respect to one of the women who had accepted Dial’s reinstatement offer, Heather *741 Wright–Bradley. She had a criminal record predating her initial application, which included a number of convictions and at least one felony. Dial dismissed her after learning about her criminal history in a background check done after her reinstatement. The district court held a telephone conference with the parties to address whether Wright–Bradley should receive back pay under the circumstances. Dial’s general counsel stated that the company had a policy on background checks during the period when the WTS was given which would have uncovered her criminal record. The district court concluded that Dial would have terminated her on account of her criminal record had she been hired in 2000 and that she was therefore not entitled to back pay.
On appeal Dial challenges the district court’s denial of its motion for judgment as a matter of law, arguing there was insufficient evidence for a jury to find intentional discrimination. Dial also attacks the district court’s findings of disparate impact and claims it proved that the WTS was a business necessity because it drastically decreased the number of injuries in
9

the sausage production area of the plant. It contends the district court should not have awarded any back pay to applicants who were not strong enough to complete the WTS, it should have used the company’s tenure data to calculate back pay, and that no applicant should have been awarded health care benefits without proof of any actual costs incurred. EEOC disagrees and cross appeals the denial of back pay to Wright–Bradley. It argues that Dial did not prove that at the time she was hired it had a policy in place to terminate new employees with similar criminal backgrounds.
[1] [2] [3] [4] Dial first argues that EEOC did not establish a pattern or practice of intentional sex discrimination and that its motion for judgment as a matter of law should therefore have been granted. EEOC responds that the jury had sufficient evidence on which to base its decision. We review the district court’s denial of Dial’s motion for judgment as a matter of law de novo, using the same standard as the district court. Ollie v. Titan Tire Corp., 336 F.3d 680, 685 (8th Cir.2003). The reviewing court must decide whether there is sufficient evidence to support the jury’s verdict when examined in the light most favorable to the verdict. Id. Judgment as a matter of law is only appropriate when there is no reasonable inference to be made from the evidence which can sustain the verdict. Id.
[5] [6] [7] A pattern or practice of intentional sex discrimination must be shown by proving “regular and purposeful” discrimination by a preponderance of the evidence, Int’l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 339, 360, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). EEOC must show that more than an isolated act of discrimination occurred and that “discrimination was the company’s standard operating procedure,” id., but statistics combined with anecdotal examples of discrimination may establish a pattern or practice of regular, purposeful discrimination. Morgan v. United Parcel Service of America, Inc., 380 F.3d 459, 463–64 (8th Cir.2004). Moreover, discriminatory intent can be inferred from the mere fact of differences in treatment, Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. 1843.
[8] Statistical disparities are significant if the difference between the expected number and the observed number is greater than two or three standard deviations. Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 308 n. 14, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Here, the disparity between hiring of men and women showed *742 nearly ten standard deviations. The percentage of women who passed the WTS declined with each implementation of the test. Despite knowing about the statistical difference, Dial continued to use the WTS. Dial argues that EEOC’s statistics are inapplicable because men and women are not similarly situated and have profound physiological differences. There was evidence, however, that women and men worked the same job together for many years before the WTS was instituted. There was also evidence of women and men receiving similar comments on their test forms, but only the males receiving offers of employment.
Dial attacks the jury’s finding that intentional discrimination began in April 2001, a month when the WTS was not in use and no particular identifiable discriminatory action was alleged. EEOC responds that the jury appeared to have found April 2001 to be the month when Dial must have known of the discriminatory effect of the WTS, but nonetheless continued to use it for future hiring periods. A reasonable jury could discredit Lutenegger’s testimony that the decrease in injuries was the company’s motivation for continuing to use the WTS. A reasonable jury could also have found that the differing treatment of males and females supported an inference of intentional discrimination. We conclude that the evidence was sufficient for a reasonable jury to find that there was a pattern and practice of intentional discrimination against women and that the district court did not err by denying Dial’s motion for judgment as a matter of law.
[9] [10] [11] [12] [13] Dial objects to the district court’s findings of disparate impact and its conclusion that the company failed to prove the WTS was necessary to establish effective and safe job performance. We review the district court’s factual findings regarding disparate impact for clear error and its legal findings de novo. Fed.R.Civ.P. 52(a). In a disparate impact case, once the plaintiff establishes a prima facie case the employer must show the practice at issue is “related to safe and efficient job performance and is consistent with business necessity.” Firefighters Inst. for Racial Equality v. City of St. Louis, 220 F.3d 898, 904 (8th Cir.2000). An employer using the business necessity defense must prove that the practice was related to the specific job and the required skills and physical requirements of the position. Belk v. Southwestern Bell Telephone Co., 194 F.3d 946, 951 (8th Cir.1999). Although a validity study of an employment test can be sufficient to prove business necessity, it is not necessary if the employer demonstrates the procedure is sufficiently related to safe and efficient job performance. Hawkins v. Anheuser–Busch, Inc., 697 F.2d 810, 815–16 (8th Cir.1983). If the employer demonstrates business necessity, the plaintiff can still prevail by showing there is a less discriminatory alternative. Firefighters, 220 F.3d at 904.
Dial contends the WTS was shown by its experts to have both content and criterion validity. Under EEOC guidelines, “A content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated.” 29 C.F.R. § 1607.5(B). Dial’s physiology
10

expert testified that the WTS was highly representative of the actions required by the job, and Dial claims that his testimony was not rebutted by EEOC which had no physiology witness. The district court was persuaded by EEOC’s expert in industrial organization and his testimony “that a crucial aspect of the WTS is more difficult than the sausage making jobs themselves” and that the average applicant had to perform *743 four times as many lifts as current employees and had no rest breaks. There was also evidence that in a testing environment where hiring is contingent upon test performance, applicants tend to work as fast as possible during the test in order to outperform the competition.
Dial argues the WTS was criterion valid because both overall injuries and strength related injuries decreased dramatically following the implementation of the WTS. The EEOC guidelines establish that criterion validity can be shown by “empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance.” 29 C.F.R. § 1607.5(B). Although Dial claims that the decrease in injuries shows that the WTS enabled it to predict which applicants could safely handle the strenuous nature of the work, the sausage plant injuries started decreasing before the WTS was implemented. Moreover, the injury rate for women employees was lower than that for men in two of the three years before Dial implemented the WTS. The evidence did not require the district court to find that the decrease in injuries resulted from the implementation of the WTS instead of the other safety mechanisms Dial started to put in place in 1996.
[14] [15] Dial contends finally that the district court improperly gave it the burden to establish that there was no less discriminatory alternative to the WTS. Dial claims the burden should have been allocated to EEOC as part of the burden shifting framework in disparate impact cases, Firefighters, 220 F.3d at 904. Since Dial failed to demonstrate that the WTS was a business necessity, however, EEOC never was required to show the absence of a nondiscriminatory alternative. Part of the employer’s burden to establish business necessity is to demonstrate the need for the challenged procedure, Kirby v. Colony Furniture Co., 613 F.2d 696, 705 n. 6 (8th Cir.1980), and the court found that Dial had not shown that its other safety measures “could not produce the same results.” We conclude that the district court findings in its disparate impact analysis were not clearly erroneous, and we see no legal error in its conclusions on liability.
[16] [17] [18] [19] Dial claims the district court committed error by awarding back pay and benefits to all but one of the claimants even though twenty four women had been unable to complete the WTS. But once an employer is found liable for a Title VII violation, the district court is obligated to grant “the most complete relief possible.” King v. Staley, 849 F.2d 1143, 1144 (8th Cir.1988). There is a strong presumption that an employee who has suffered discrimination should receive back pay. E.E.O.C. v. Rath Packing Co., 787 F.2d 318, 329 (8th Cir.1986). This presumption can be overcome only if back pay would “frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). The trial court “has broad equitable discretion to fashion back pay awards in order to make the Title VII victim whole.” E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664, 669–70 (8th Cir.1992). The district court’s finding of discrimination was based on Dial’s use of the WTS and the evidence that the test was more difficult than the actual job. Women who were not hired because they were unable to complete the WTS suffered losses as a consequence, and Dial did not overcome the presumption in favor of awarding back pay in respect to these claimants.
*744 [20] Dial also claims the district court erred by refusing to use its employee tenure data in calculating the amount of back pay because the plant’s high turnover rate suggests the claimants would not have been employed for the entire back pay period. The district court applied the well established rule for calculating back pay—the difference between the amount the claimant would have earned absent the discrimination and the amount of wages actually earned during the relevant period. See Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1062 (8th Cir.2002). This was consistent with Title VII’s dual purposes of compensating victims and deterring future discrimination, as well as the district court’s obligation to grant “the most complete relief possible.” King, 849 F.2d at 1144.
[21] Dial also challenges the award of lost medical premiums, arguing the claimants should have been required to prove they incurred medical expenses. Our court has not decided whether out of pocket expenses are required before health care benefits can be awarded, see Tolan v. Levi Strauss & Co., 867 F.2d 467, 470 (8th Cir.1989), and other circuits are divided on the issue. In the view of the Fourth Circuit, Congress intended fringe benefits to be part of the monetary award compensating claimants for the discrimination they suffered. See Fariss v. Lynchburg Foundry, 769 F.2d 958, 965–66 (4th Cir.1985) (awarding medical benefits to widow of age discrimination victim without requiring proof of out of pocket medical insurance costs); see also Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1185–86 (6th Cir.1983) (granting the amount of health care premiums to claimant as part of recovery); but see Galindo v. Stoody Co., 793 F.2d 1502,1517 (9th Cir.1986) (reimbursing only out of
11

pocket expenses incurred to obtain health care).
Health care benefits are an important element of an employee’s overall employment package, and Dial does not contest that it would have awarded claimants health care benefits had they been hired. The district court only required Dial to compensate the claimants for the amount of health care premiums that would have been part of their employment package had they not suffered discrimination. No reimbursement for health care costs incurred by uninsured claimants was awarded. The court’s limited award was reasonable, for “[t]his insurance coverage, not the proceeds, is the benefit for which the employer must be held liable.” Fariss, 769 F.2d at 965.
EEOC cross appeals the denial of back pay to Wright–Bradley. EEOC argues that Dial did not overcome the presumption in favor of awarding back pay to her as a victim of Title VII violations. See Rath Packing, 787 F.2d at 329. Dial responds that it should not have to contribute back pay to Wright–Bradley because she was convicted of a felony before she applied in 2000, a background check would have revealed her criminal record, and she would have been terminated. EEOC disputes Dial’s factual assertions and argues that McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), supports an award of back pay to Wright–Bradley.
In McKennon, the Supreme Court concluded that an employer’s belated discovery of wrongdoing by a dismissed employee should not completely bar an award of back pay because of the congressional “objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from [ ] discrimination.” Id.; see also Sellers v. Mineta, 358 F.3d 1058, 1061–62 (8th Cir.2004) (applying the after acquired evidence rule to Title VII cases). *745 The Supreme Court decided that back pay should be awarded, but only “from the date of the unlawful discharge to the date the new information was discovered” absent findings of “extraordinary equitable circumstances.” McKennon, 513 U.S. at 362, 115 S.Ct. 879. The district court distinguished McKennon on the basis that the misconduct there had occurred during the plaintiff’s employment and concluded that back pay would result in a windfall to Wright–Bradley. Dial argues that this is a mixed motives case so McKennon does not apply, but Wright–Bradley’s criminal record could not have been a motive for Dial’s not hiring her since it was unaware of it at the time.
Dial’s general counsel represented in the court’s telephone conference that its offers of employment in 2000 were contingent on passing a background check. Counsel also stated that Dial had not previously dismissed an employee due to such a check since it had not discovered felony convictions before but that Dial had terminated five employees with criminal records. EEOC objected that “we’ve got a factual problem here,” that Dial had offered no evidence to establish that the described policy existed, and that Dial’s job application stated only that a hiring offer was contingent on a drug test and a check of previous employment. EEOC added that it had asked Dial during discovery for copies of background checks completed on employees hired near the time Wright–Bradley took the WTS, but Dial responded that it did not have such evidence.
[22] After examining the record we conclude that there are disputed factual issues here on the question of whether Wright–Bradley should be awarded back pay. The statements of Dial’s counsel on which the district court relied were not made under oath, and no other evidence of Dial’s policy has been proffered. Like the employer in McKennon, Dial learned about Wright–Bradley’s wrongdoing only after its discriminatory hiring decision was made. Under the after acquired evidence framework, Dial has the burden of proving that Dial would have terminated Wright–Bradley in 2000 because of her criminal background. See McKennon, 513 U.S. at 362–63, 115 S.Ct. 879. If Dial produces such proof, the district court should consider whether Wright–Bradley is entitled to any amount of back pay. See id.
In sum, we affirm the district court’s denial of judgment as a matter of law, its findings of disparate impact, and its award of back pay and benefits to all claimants except Wright–Bradley. Her claim for back pay is remanded for further proceedings consistent with this opinion.
12