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Case 0:05-cv-02122-DSD-SRN Document 1-1 Filed 09/14/2005 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

EQUALEMPLOYMENTOPPOR~TY
COMMISSION, Plaintiff,
v.
KCD CONSTRUCTION, INC. Defendant.

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CIVIL ACTION NO.

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COMPLAINT

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Jury Trial Demand

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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 national origin harassment. Specifically, Defendant discriminated against Francis Soto, Javier Hernandez, Jose Antonio Hernandez, Humberto Bravo, Roberto Santos, Jose Rodriguez, William Morales, Joel Perez, Otonel Rivera and Efren Romero when it subjected them and a class of similarly situated Hispanic employees to harassment based on their national origin. Defendant's action violated Section 703(a) of Title VII, 42 U.S.C. §2000e-2(a).
JURISDICTION AND VENUE I. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(l) ("Title VII").

SCANNED
sEP 14 zoosltJ
. U.S. DISTRICT COURT MPL.S .

Case 0:05-cv-02122-DSD-SRN Document 1-1 Filed 09/14/2005 Page 2 of 5
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the District of Minnesota.
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) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, KCD Construction, Inc. ("Defendant"), has continuously been an Iowa corporation doing business in the State ofMinnesota and the City of Slayton, and has continuously had at least 15 employees. 5. At all relevant times, KCD Construction, Inc., has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e (b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Francis Soto, Javier Hernandez, Jose Antonio Hernandez, Humberto Bravo, Roberto Santos, Jose Rodriguez, William Morales, Joel Perez, Otonel Rivera and Efren Romero (hereinafter "Charging Parties") filed charges with the EEOC alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Charging Parties and a class of similarly situated Hispanic employees were subjected to harassment based on their national origin when the owner and his sons repeatedly
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Case 0:05-cv-02122-DSD-SRN Document 1-1 Filed 09/14/2005 Page 3 of 5

made derogatory comments to the Charging Parties, including calling them "stupid Mexican" and

"wetback." Defendant created a hostile work environment when Defendant threw pieces of

wood at the Charging Parties, physically hit and pushed them, and spit on them. Defendant's

actions are in violation of Section 703(a) of Title VII, 42 U.S. C. §§2000e-2(a).

8. The effect of the practices complained of in paragraph 7 above has been to deprive

the Charging Parties and a class of similarly situated Hispanic employees of equal employment

opportunities and otherwise adversely affect their status as employees because of their national

ongm.

9.

The unlawful employment practices complained of in paragraph 7 above were

intentional. 10. The unlawful employment practices complained of in paragraph 7 above were

done with malice or with reckless indifference to the federally protected rights of the Charging

Parties and a class of similarly situated Hispanic employees.

PRAYER FOR RELIEF

Wherefore, the EEOC respectfully requests that this Court:

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

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

employment practice which discriminates on the basis of national origin.

B. Order Defendant to make whole Charging Parties and a class of similarly situated

Hispanic employees by providing compensation for past and future pecuniary losses resulting

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Case 0:05-cv-02122-DSD-SRN Document 1-1 Filed 09/14/2005 Page 4 of 5
from the unlawful employment practices complained of in paragraph 7 above, in amounts to be determined at trial.
C. Order Defendant to make whole Charging Parties and a class of similarly situated Hispanic employees by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including emotional distress, in amounts to be determined at trial.
D. Order Defendant to pay Charging Parties and a class of similarly situated Hispanic employees punitive damages for its malicious and reckless conduct, complained of in paragraph 7 above, in amounts to be determined at trial.
E. Grant such further relief as the Court deems necessary and proper in the public interest.
F. Award the EEOC its costs of this action. JURY TRIAL DEMAND
The EEOC requests a jury trial on all questions of fact raised by its Complaint. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
JAMESL. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W. Washington, D.C. 20507
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Case 0:05-cv-02122-DSD-SRN Document 1-1

Filed 09/14/2005

Page 5 of 5

Dated: --'-J-.JCfiJL.LL{f---=~-_/_.t:c.;_-'_ I

-::; cJ··
Je P. Kamp gional Attorney
Tina urnside (WI#1026965) Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Minneapolis Area Office 330 South Second Avenue, Suite 430 Minneapolis, MN 55401-2224 (612) 335-4047

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 Case 0:05-cv-02122-DSD-SRN Document 45 Filed 02/24/2006 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

CIVIL MOTION HEARING

Equal Employment Opportunity Commission, Plaintiff
v. KCD Construction, Inc.,
Defendant.
APPEARANCES:

COURT MINUTES
BEFORE: Susan Richard Nelson U.S. Magistrate Judge

Case No: Date: Court Reporter: Tape Number: Time Commenced: Time Concluded: Time in Court:

CV-05-2122 DSD/SRN February 24, 2006 None 519, 520 9:30 a.m. 10:30 a.m. 1 hour

For Plaintiff: For Defendant:

Tina Burnside Stephen M. Thompson

Interpreter / Language:

n/a /

IF MOTION IS RULED ON PLEASE INCLUDE DOCUMENT NUMBER AND TITLE APPEARING IN CM/ECF.

ORDER TO BE SUBMITTED BY:

9 COURT 9 PLAINTIFF 9 DEFENDANT

Pl’s Motion for Protective Order [Doc. 21] Pl’s Motion to Compel [Doc. 25] Def.’s Motion to Compel [Doc. 32]

The Court ruled from the bench on each of the above motions. These minutes constitute the Order of the Court.

Plaintiff’s Motion for Protective Order (Doc. No. 21) is GRANTED as follows: The motion is granted except to the extent that Defendant may ask a charging party at his deposition if he identifies himself to others or requests others to refer to him by a name different from his legal name and, if so, the charging party may be asked to provide such name(s). Discovery into the citizenship or legal status of the charging parties will not be permitted.

Plaintiff’s Motion to Compel (Doc. No. 25) is GRANTED in part and DENIED in part as follows: Personnel Files (Request Number 2): Defendant is ordered to ensure that a thorough search of its records has been conducted and that any responsive documents be provided to Plaintiff. Defendant is ordered to supplement its response to state that a thorough search has been conducted and that all responsive materials have been produced.

Financial Records and Tax Returns (Request Number 8): Defendant is ordered to produce the documents listed in Plaintiff’s Document Request Number 8 from January 1, 2002 to the present. Plaintiff shall stipulate to not using these documents outside of the present litigation.

Privilege Log (Request Number 1): The Court finds that Defendant’s privilege log is insufficient but finds that Defendant has not waived its attorney-client privilege or work-product objections. Defendant shall

Case 0:05-cv-02122-DSD-SRN Document 45 Filed 02/24/2006 Page 2 of 2
produce to Plaintiff within ten days of the date of this Order a privilege log identifying for each document: (1) the creation date; (2) a description; (3) the author; (4) all recipients; (5) whether it is privileged on the basis of attorney-client, opinion work-product, or ordinary work-product. If after review, Plaintiff finds the privilege log to remain deficient, the parties shall meet and confer to attempt to resolve their differences. If after said meet and confer a dispute remains, Plaintiff shall schedule a status conference with the Court to resolve any remaining issues concerning Defendant’s privilege log.
Statements Related to Charging Parties’ Claims (Request Number 3): To the extent Defendant has not produced these documents based upon attorney-client privilege or work-product objections, Defendant shall list each document in its privilege log in compliance with the requirements identified above.
Scheduling of Depositions: Kenneth, Chad, and Dennis Doeden shall be produced for deposition for two days in the month of March 2006. Within five (5) days of the date of this Order, Defendant shall provide Plaintiff with a list of days in March 2006 on which the Doedens may be deposed. The charging parties shall be produced for depositions in Worthington, Minnesota in early April 2006.
Defendant’s Motion to Compel (Doc. No. 32) is GRANTED in part and DENIED in part as follows:
With respect to Interrogatory Number 14a-b (concerning names used by the charging parties), Defendant’s motion is denied except as discussed above in ruling on Plaintiff’s Motion for a Protective Order.
With respect to Defendant’s request for unredacted copies of cassette tapes possessed by Plaintiff, the Court grants the alternative relief requested and orders Plaintiff to produce the redacted material to the Court within ten (10) days of the date of this Order for an in camera review. The Court will thereafter issue an Order ruling on Defendant’s Motion to Compel with respect to this redacted material.
: NO OTHER ORDER TO BE ISSUED
s/ Susan Richard Nelson SUSAN RICHARD NELSON United States Magistrate Judge

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v.
KCD CONSTRUCTION, INC.,
Defendant.

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Civil Action No. 05-2122 DSD/SRN

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CONSENT DECREE

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This action was filed by the Equal Employment Opportunity Commission ("EEOC") on

September 14, 2005, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e, et seq. In its complaint, the EEOC alleged that Defendant discriminated against

Francis Soto, Javier Hernandez, Jose Antonio Hernandez, Humberto Bravo, Roberto Santos, Jose

Rodriguez, William Morales, Joel Perez, Otonel Rivera and Efren Romero (“Charging Party” or

“Charging Parties”) when it subjected them and a class of similarly situated Hispanic employees

to harassment based on their national origin. The EEOC alleged that Defendant’s action violated

Section 703(a) of Title VII, 42 U.S.C. §2000e-2(a). Defendant denies the allegations in the

complaint.

The EEOC and Defendant (hereinafter referred to as "the parties") have agreed to settle

these claims in order to reach an amicable resolution of this matter and avoid further litigation.

The terms of the agreement are set forth below.

Therefore, upon the consent of the parties, and upon review by the Court of these terms,

it is ORDERED, ADJUDGED AND DECREED as follows:

I. Monetary Relief

A. Settlement Amount

The parties agree that the following Charging Parties are entitled to monetary relief pursuant to this Consent Decree: Francis Soto, Javier Moran Hernandez, Humberto Lopez Bravo, Roberto Soto Santos and William Morales Aldoy. Defendant agrees to settle this case for $41,500. Checks shall be made payable to each individual Charging Party as follows: Francis Soto, $16,500; Javier Moran Hernandez, $10,000; Humberto Lopez Bravo, $5,000; Roberto Soto Santos, $5,000; and William Morales Aldoy, $5,000. The checks shall be sent by certified mail, return receipt requested, to each individual Charging Party at addresses provided to Defendant by the EEOC. A copy of the checks shall be mailed simultaneously to the undersigned counsel for the EEOC. The payments shall be made within 10 calendar days after this action is dismissed pursuant to this Consent Decree provided that the EEOC has given Defendant’s counsel the original releases described in Section I. B.
Defendant shall issue each Charging Party a form 1099 for the amount received for compensatory damages. Neither the EEOC nor Defendant make any representation, or assume any responsibility for any tax liability, assessments, interest, penalties and/or costs that the Charging Parties may or may not incur on such payments under local, state and/or federal law.
B. Releases Each Charging Party will submit to the EEOC signed releases in the form attached hereto as Exhibit A. II. Injunctive Relief A. Compliance with Title VII Defendant shall not discriminate on the basis of national origin as prohibited by 42 U.S.C. §2000e, et. seq. Specifically, Defendant shall not subject Hispanics to harassment on the
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basis of national origin. Defendant shall not retaliate against any employee or former employee for exercising the right to oppose any employment practice made unlawful by Title VII, and to make a charge, testify, assist, or participate in an investigation, proceeding or hearing under 42 U.S.C. §2000e et. seq.
B. Impact Upon the EEOC's Processing The EEOC does not waive or in any manner limit its right to process or seek relief in any other charge or investigation based upon allegations not included in the above-captioned case. C. Training Defendant shall provide training, specifically on national origin discrimination and national origin harassment, to all of its personnel including employees, supervisors and managers. Defendant shall provide a certified Spanish language interpreter for the training to accommodate its Hispanic employees. In addition, Kenneth, Chad and Dennis Doeden will participate in training on national origin discrimination and national origin harassment. Defendant will also implement annual EEO training for supervisors and managers during the period of the Consent Decree. D. Creation and Dissemination of Anti-Discrimination Policy Defendant shall create an anti-discrimination policy within 30 days after this action is dismissed pursuant to this Consent Decree. Such policy will specifically outline procedures for reporting and investigating complaints of national origin discrimination and harassment, and will include the names of persons to whom discrimination complaints should be made. This policy shall be disseminated to all employees. Defendant shall also have a copy of the antidiscrimination policy translated into Spanish.
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E. Posting of Notice Defendant agrees to post the notice (Exhibit B hereto) in its facility in a clear and conspicuous location customarily used for the posting of employee notices. Two copies of the notice will be posted with one written in English and the other written in Spanish. Defendant agrees to post these notices within five calendar days of approval of this Consent Decree by the Court, for the term of the Consent Decree. F. Record-keeping and Reporting For two years from the date of this Consent Decree, Defendant shall document and maintain records related to every complaint of national origin discrimination and national origin harassment. The discrimination complaints will be provided to the EEOC on June 30 and October 30 throughout the term of this Decree with the first reports being due six months after the Order is entered by the Court. The report shall will include the following information: (1) the name, address and telephone number of who made the complaint; (2) the date of the complaint; (3) to whom the complaint was made; (4) information regarding the substance and nature of the complaint; and (5) what action, if any, was taken in response to the complaint. In the event that Defendant ceases operation and/or dissolves KCD Construction, Inc. prior to the expiration of the term of this Decree, but later resumes operation of the business, Defendant agrees that the Consent Decree shall be in effect until the expiration of a total two year (24 month) period. G. Enforcement of Consent Decree If at any time during the effective date of this Consent Decree, the EEOC believes that a violation of this Decree has occurred, prior to exercising its right to move to compel
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enforcement, the EEOC shall give written notice detailing the perceived violation to Defendant. Defendant shall have thirty (30) days from receipt of written notice to investigate and respond in writing to the allegation that a violation has occurred. Thereafter, the parties shall have a period of thirty (30) days, or such additional period as may be agreed upon in writing by them, in which to engage in negotiation and conciliation regarding any alleged violation before the EEOC may move to compel compliance.
H. Certification to the EEOC Within 10 calendar days following compliance with the posting, training and creation/dissemination of anti-discrimination policy provisions of this Consent Decree, Defendant will notify the EEOC of such compliance through a letter from an appropriate representative. I. No Other Agreements This Consent Decree constitutes the sole agreement between and among the parties concerning the settlement of the above-captioned lawsuit. The parties agree that no promises or inducements have been made except as set forth in this Consent Decree, and that there are no other agreements, written or oral, express or implied, between or among the parties concerning the subject matter of this lawsuit. J. Enforcement of Terms of Consent Decree and Jurisdiction Upon execution of the Consent Decree by the parties, the parties will execute a Stipulation for Dismissal with Prejudice, pursuant to Fed. R. Civ. P. 41(a)(2), to dismiss this case without costs to the parties, with the Court to reserve jurisdiction to enforce the terms of the Consent Decree.
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The affirmative obligations under this Consent Decree shall be effective and binding upon the parties for the period of two calendar years from its approval by the Court. This Court shall retain jurisdiction of this action for the purpose of enforcing this Decree and entry of such further orders as may be necessary or appropriate for the same period of time, except that, if any party has, prior to the expiration of the two year period, commenced proceedings to compel compliance, this Court will retain jurisdiction of the action until all issues relating to such compliance proceedings have been resolved. At the end of the two year period, or as soon as all enforcement issues (if any) have been resolved, whichever occurs last, this Court will dissolve the Consent Decree and will dismiss this action with prejudice without further motion by any party.

DATED: July 25, 2007

s/David S. Doty David S. Doty United States District Court Judge

I have read the foregoing Consent Decree, and accept and agree to the provisions contained therein.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Date: July 23, 2007

s/John C. Hendrickson John C. Hendrickson Regional Attorney Chicago District Office 500 W. Madison Street, Suite 2800 Chicago, IL 60661 (312) 353-2713
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Date: 7/23/2007 Date: 7/11/07
Date: 7/19/07

s/Jean P. Kamp/JH Jean P. Kamp Associate Regional Attorney
s/Tina Burnside Tina Burnside (WI#1026965) Supervisory Trial Attorney Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, NC 28202 (704) 344-6876 Attorneys for Plaintiff
FRIEDERICHS & THOMPSON, P.A.
s/Tammy P. Friederichs Tammy P. Friederichs (#219423) Stephen M. Thompson (#0279791) FRIEDERICHS & THOMPSON, P.A. 1120 East 80th Street, Suite 106 Bloomington, Minnesota 55420 (952) 814-0110 Attorneys for Defendant
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RELEASE AND WAIVER
In consideration for $ ______________________________ paid to me by KCD Construction Inc., in connection with the resolution of EEOC v. KCD Construction, Inc., Case No. 05-CV-2122 (DSD/SRN) (D. Minn.), I waive my right to recover for any claims arising under Title VII of the Civil Rights Act of 1964 that I had against KCD Construction, Inc. prior to the date of this Release and Waiver that were included in the claims alleged in EEOC's complaint in EEOC v. KCD Construction, Inc., Case No. 05-CV-2122 (DSD/SRN) (D. Minn.).

Date:

Signature:

EXHIBIT A

RENUNCIA

En contraprestación por la suma de $ ______________________________ que recibí de parte de KCD Construction, Inc., en relación con la resolución de EEOC v. KCD Construction, Inc., Causa Núm. 05-CV-2122 (DSD/SRN) (D. Minn.), renuncio a mi derecho de cobrar una compensación monetaria por cualquier denuncia que surja en virtud del Título VII de la Ley de Derechos Civiles de 1964 que tuviera en contra de KCD Construction, Inc. antes de la fecha de la presente Renuncia y que se incluyó en las reclamaciones que se alegan en la Demanda de la EEOC incluidas en EEOC v. KCD Construction, Inc., Causa Núm. 05-CV-2122 (DSD/SRN) (D. Minn.)

Fecha:

Firma:

EXHIBIT A

NOTICE TO EMPLOYEES
This Notice is being posted pursuant to an agreement between the U.S. Equal Employment Opportunity Commission (EEOC) and KCD Construction, Inc. A complaint was filed with the EEOC by several employees alleging that KCD Construction, Inc. violated Title VII of the Civil Rights Act of 1964 by discriminating against Hispanic employees on the basis of their national origin. KCD Construction, Inc., denies the allegations in the complaint. In an effort to resolve the complaint, KCD Construction, Inc., has agreed to take the following steps:
KCD Construction, Inc. agrees not to engage in any type of discrimination prohibited by Title VII.
KCD Construction, Inc. will provide training to its employees, supervisors and managers regarding federal anti-discrimination laws including national origin discrimination and harassment under Title VII.
KCD Construction, Inc. will create and disseminate anti-discrimination policies to its employees, supervisors and managers outlining that national origin discrimination and harassment is prohibited.
The EEOC enforces Title VII, which prohibits job discrimination based on race, color, religion, sex or national origin, the Age Discrimination in Employment Act, the Equal Pay Act, prohibitions against discrimination against 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. The Minneapolis office of the EEOC is located at 330 S. Second Ave., Suite 430, Minneapolis, MN 55401. The office is open from 8:00 a.m. to 4:30 p.m., Monday through Friday. Persons interested in contacting the EEOC may do so either by visiting or writing or by calling (612) 335-4040. Information can also be obtained on the EEOC’s website at www.eeoc.gov.

 
 E.E.O.C. v. KCD Const., Inc., Not Reported in F.Supp.2d (2006)
2006 WL 549393 United States District Court,
D. Minnesota. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v. KCD CONSTRUCTION, INC., Defendant. No. Civ. 05-2122DSDSRN. | March 6, 2006.
Attorneys and Law Firms Tina Burnside, EEOC, Minneapolis, MN, for plaintiff. Tammy P. Friederichs, Stephen M. Thompson, and Friederichs & Thompson, P.A., Bloomington, MN, for defendant. Opinion
ORDER
DOTY, J. *1 This matter is before the court upon plaintiff’s motion for partial summary judgment. Based upon a review of the file, record and proceedings herein, and for the reasons stated, the court grants plaintiff’s motion.
BACKGROUND This is an employment discrimination action under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (“Title VII”).1 Defendant KCD Construction, Inc. (“KCD”), is in the business of concrete construction. Plaintiff is the Equal Employment Opportunity Commission (“EEOC”), an agency of the United States. The EEOC claims that KCD discriminated against several of its employees and a class of similarly situated Hispanic employees based on national origin. The EEOC seeks injunctive and compensatory relief, as well as punitive damages. KCD asserts multiple affirmative defenses including that the EEOC fails to meet the necessary requirements for a class action pursuant to Federal Rule of Civil Procedure 23 (“Rule 23 defense”). EEOC now moves for partial summary judgment on KCD’s Rule 23 defense.
DISCUSSION
I. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). “Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Adams v. Boy Scouts of Am.-Chickawaw Council, 271 F.3d 769, 775 (8th Cir.2001).
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E.E.O.C. v. KCD Const., Inc., Not Reported in F.Supp.2d (2006)
II. Applicability of Rule 12(f) As an initial matter, KCD contends that the EEOC’s motion pursuant to Rule 56 is improper because a motion to strike pursuant to Rule 12(f) is the appropriate vehicle to dismiss “any insufficient defense.” Fed.R.Civ.P. 12(f). A Rule 12(f) motion must be made within twenty days after the service of the challenged pleading. Id. As a result, KCD argues that the court should deny EEOC’s motion as untimely under Rule 12.
KCD cites decisions from the Second Circuit and Fifth Circuit Courts of Appeals in support of its argument. However, neither case directly addresses the issue before this court. As to the Second Circuit case, Berstein v. Universal Pictures, Inc., it does not set forth the holding that KCD alleges. See 517 F.2d 976, 979 (2d Cir.1975). Rather, the court merely noted that the district court had found that Rule 56 was “an inappropriate vehicle for dismissal of affirmative defenses,” without reaching the issue itself. Id. at 982 (reversing and remanding on other grounds). Similarly, the Fifth Circuit in United States v. Don B Hart Equity Pure Trust did not directly address the issue that KCD asserts. See 818 F.2d 1246, 1255 (5th Cir.1987). Rather, the court declined to dismiss as untimely the plaintiff’s motions to strike pursuant to Rule 12(f) because the defendant had failed to raise the untimeliness argument before the district court. Id. Indeed, the court affirmed the district court’s dismissal of the defendant’s affirmative defenses. Id. at 1256.
*2 The Eighth Circuit has affirmed summary judgment on affirmative defenses, which indicates that a Rule 56 motion is an acceptable vehicle to resolve such defenses. See, e.g., Hennepin County v.. Aetna Cas. & Surety Co., 587 F.2d 945, 945-46 (8th Cir.1978) (affirming partial summary judgment of two affirmative defenses); cf. Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 652-55 (8th Cir.2005) (affirming summary judgment in favor of plaintiff because defendant’s affirmative defense fails as a matter of law). Moreover, the court must construe and administer the Federal Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action.” Fed.R.Civ.P. 1. If maintained through discovery, KCD’s Rule 23 defense may require significant time and expense for the parties to resolve. However, if the defense is invalid as a matter of law, then granting the EEOC’s motion for summary judgment would serve the Federal Rules’ goal of resolving matters in a speedy and inexpensive manner. For all of the above reasons, KCD’s argument that Rule 12(f) governs the disposition of the EEOC’s motion is rejected.
III. Application of Rule 23 to the EEOC KCD argues that the EEOC is subject to the requirements of Rule 23 because the EEOC seeks monetary relief in addition to injunctive relief. In General Telephone Co. v. EEOC, the Supreme Court held that the EEOC is not subject to Rule 23 when it brings an enforcement suit under Title VII. See 446 U.S. 318, 326 (1980). KCD argues that the Supreme Court’s decision in General Telephone is not applicable because that case involved only equitable relief. See id. at 321. At the time the Court decided General Telephone, the EEOC could pursue only equitable relief for Title VII violations.2 See 42 U.S.C. § 2000e-5(g)(1) (authorizing court to grant appropriate equitable relief); Gen. Tel., 446 U.S. at 326 (Rule 23 does not apply to EEOC even in light of its ability to secure specific equitable relief on behalf of discrimination victims). However, the Court did not base its decision regarding Rule 23 upon the relief available under Title VII, but rather focused on the role of the EEOC to vindicate the public interest “albeit at the behest of and for the benefit of specific individuals.” 446 U.S. at 326. Such a focus indicates that the Court’s conclusion that Rule 23 does not apply to the EEOC was based upon the EEOC’s overall function in Title VII cases. For this reason, the court rejects KCD’s argument that the General Telephone decision does not apply to this case.3
There is no case in the Eighth Circuit directly on point. However, other federal courts have followed the decision in General Telephone and found that Rule 23 does not apply to the EEOC in Title VII cases even when compensatory damages are sought. See In re Bemis Co., 279 F.3d 419, 421 (7th Cir.2002); EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 587 (9th Cir.2000); cf. EEOC v. W & O, Inc., 213 F.3d 600, 613 (11th Cir.2000); EEOC v. Kim & Ted, Inc., 1995 WL 591451, at *1-2 (N.D.Ill.1995). KCD has pointed to no contrary authority. Based on the Supreme Court’s holding in General Telephone and the subsequent agreement among federal courts, the court finds that the EEOC is not subject to the requirements of Rule 23. Therefore, summary judgment in favor of plaintiff on defendant’s Rule 23 defense is warranted.
CONCLUSION
*3 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for partial summary judgment [Doc. No. 7] is granted.
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E.E.O.C. v. KCD Const., Inc., Not Reported in F.Supp.2d (2006)

Parallel Citations

87 Empl. Prac. Dec. P 42,307

Footnotes

1

Under Title VII, it is unlawful for an employer to “discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s ... national origin.” 42 U.S.C. § 2000e-2(a)(1).

2

In 1991, Congress expanded the relief available under Title VII to include compensatory and punitive damages. See 42 U.S.C. §

1981a (1991).

3

KCD also argues that the Court’s later holding in Bazemore v. Friday limited its earlier General Telephone decision. See 478 U.S.

385 (1986). Contrary to KCD’s argument, however, the Court in Bazemore reaffirmed that in a Title VII case, “the Government

need not be certified as a representative of the class of alleged victims.” Id. at 406 n. 18 (emphasis in original). Therefore, KCD’s

argument is without merit.

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 E.E.O.C. v. KCD Const., Inc., Not Reported in F.Supp.2d (2007)
2007 WL 1129220 United States District Court,
D. Minnesota.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
KCD CONSTRUCTION, INC., Defendant.
Civil No. 05-2122(DSD/SRN). | April 16, 2007.
Attorneys and Law Firms
Jean P. Kamp, Esq., EEOC, Milwaukee, WI, and Tina Burnside, EEOC, Charlotte, NC, counsel for plaintiff.
Tammy P. Friederichs, Esq., Stephen M. Thompson, Esq. and Friederichs & Thompson, Bloomington, MN, counsel for defendant.
Opinion
ORDER
DAVID S. DOTY, United States District Court Judge.
*1 This matter is before the court on defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Based upon a review of the file, record and proceedings herein, and for the reasons stated, defendant’s motion is denied.
BACKGROUND
The Equal Employment Opportunity Commission (“EEOC”) brought this employment discrimination action on behalf of a class of Hispanic employees against defendant KCD Construction, Inc. (“KCD”) pursuant to Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991.1 At various periods between 2000 and 2004, KCD employed Francis Soto (“Soto”), Javier Hernandez (“Hernandez”), Humberto Bravo (“Bravo”), Roberto Santos (“Santos”), William Morales Aldoy (“Aldoy”) and Efren Romero (“Romero”), the charging parties in this action. The charging parties claim that they were subjected to a hostile workplace during their tenure at KCD that included verbal and physical harassment based on their national origin. KCD is a construction company that engages in concrete work, primarily related to hog holding facilities. The company is located in Slayton, Minnesota, and owned by Ken Doeden (“Ken”) and his wife, Joyce. Ken’s sons, Chad Doeden (“Chad”) and Dennis Doeden (“Dennis”), work for KCD as supervisors and have hiring and firing power.
The majority of KCD’s workforce-up to 75%-consists of Hispanic laborers who work on a seasonal basis. (Chad Dep. at 11; Ken Dep. at 12-13.) These employees are laid off during the winter months, but some return and work for KCD during successive summers. Chad and Dennis routinely work alongside the other employees during construction jobs, and Ken typically works from an onsite trailer. At the trailer, KCD posted various employment-rights fliers that included information about minimum wage and antidiscrimination laws, emergency contacts and job safety and health protection. An Equal Employment Opportunity poster informed workers that they should contact a local EEOC office with any employment discrimination problems. (Friederichs Aff. Ex. 3.) Other than these signs, of which only one was translated into Spanish, KCD had no written employment discrimination policy. (Ken Dep. at 37-38.)
While Dennis likened KCD’s work environment to “one big family” and Ken described regularly helping his Hispanic employees by giving them food, clothing and salary advances, the charging parties paint a different picture of working at KCD. They allege daily verbal and physical harassment in the form of racial slurs, hitting, spitting and threats of bodily harm.
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E.E.O.C. v. KCD Const., Inc., Not Reported in F.Supp.2d (2007)
Romero, who worked for KCD in 2000 and speaks both English and Spanish, claims that the Doedens harassed the Hispanic employees by calling them “wetback[s],” “motherfuckers” and “lazy motherfuckers.” (Romero Dep. at 14-16.) He also claims that Dennis and Chad threw wood and nails at him and other Hispanic employees. (Id. at 14-16, 32.) Sometime during the 2000 season, Romero had an encounter with Chad and Dennis. Romero alleges that after Dennis called him a “fucking lazy motherfucker” Romero told Dennis not to call him names. (Id. at 16.) Dennis responded with more name calling, and he and Chad moved threateningly towards Romero. (Id. at 17-18.) Romero claims he was fired when he told Ken about the incident. (Id. at 15.)
*2 Hernandez, a KCD employee in 2001 and 2004, claimed that Dennis threw rebar and wood at Hispanic employees, shot nails at them with a nail gun and threw nails at them, hit them on the head, spit at them, drove the skid loader at them and pushed portable toilets around with the skid loader when Hispanic employees were inside. (Hernandez Dep. at 51-56.) Hernandez further claims that on one occasion in 2004 Dennis grabbed his wrist, twisted it behind his back and held him to the ground. (Id. at 49-50.) Hernandez, who does not speak English but who has taken some English classes, also alleges that he and the Hispanic employees suffered verbal abuse. He claims that Ken often swore at them. At a job in July 2004, bilingual Hispanic workers told Hernandez that Ken was calling them “motherfuckers.”
Soto was a KCD employee in 2001, 2003 and 2004. He worked as a lead for the Hispanic employees because he speaks both English and Spanish. Soto claims that the Doedens subjected him and the Hispanic employees to harassment on a daily basis. (Soto Dep. at 98-100.) He alleges that they called him “Osama,” a name that the other KCD employees seized upon, and that they often referred to the Hispanic employees as “wetback[s],” “stupid motherfucking Mexican[s],” “asshole [s],” “motherfucker[s]” and “fucking dumb ass[es].” (Soto Dep. at 47-48, 91-92, 122.) As a translator, Soto relayed these epithets to the other Hispanic employees. (Santos Dep. at 40; Aldoy Dep. at 33-34; Bravo Dep. at 21-24.) Soto claims the Doedens engaged in physical abuse and intimidation as well. He alleges that the Doedens spit tobacco and threw lit cigarettes at Hispanic employees, hit them in the head and threw wood, nails and tools at them. (Id. at 47-48, 117-19, 126-27.) Soto discussed his dissatisfaction over such treatment with Ken and Chad on multiple occasions in 2003 and 2004, but he asserts that any change in the Doedens’ behavior lasted no more than a week at a time. (Id. at 84-87.)
Santos, Bravo and Aldoy all worked for KCD during the 2004 season. Each claims that the Doedens harassed the Hispanic employees, calling them “wetbacks,” “fucking Mexicans” and “motherfucker[s].” (Santos Dep. at 44-45; Bravo Dep. at 20-22; Aldoy Dep. at 9, 32-33.) Santos alleges that the Doedens grabbed him and that Dennis spit at him. Bravo claims that Dennis got upset with him for speaking Spanish and pushed him on several occasions and also remembers the Doedens throwing nails, cigarette butts and wood at him. (Bravo Dep. at 24-25, 29-30.) Aldoy alleges that Chad threw wood at him and Dennis hit him with equipment. (Aldoy Dep. at 28).
During the 2004 season, a group of Hispanic employees pooled together money and bought a tape recorder to document the verbal harassment they experienced. Different employees carried the recorder over a period of one to two months, recording intermittently for ten to fifteen minutes a day. (Soto Dep. at 209-15.) On the tapes, Ken is heard saying “fucking retard,” “Jesus Christ, you guys are dumb,” “you dumb fuckers,” and “boy, you’re lazy,” among other things. (Burnside Decl. Ex. 2 at 33-45.) The tapes contain no evidence of racial slurs such as “wetback,” but the charging parties claim that the verbally abusive language in the tapes was directed only at Hispanic employees. (See Soto Dep. at 96-97, 106-07; Aldoy Dep. at 37-38; Romero Dep. at 30.)
*3 The Doedens refute all of these claims and argue that they never mistreated the Hispanic workers. Although Ken acknowledged swearing and the veracity of the recorded material, he asserts that it was not directed at the Hispanic workers. Each of the Doedens denied using racial slurs. Further, the Doedens challenge the legitimacy of this action because Romero and Soto are the only charging parties who speak English. The Doedens therefore question the ability of the charging parties to be threatened or harassed when many of them did not understand what was supposedly being said. The Doedens allege that Soto orchestrated this entire action in an attempt to gain a financial windfall from KCD. They claim that Soto spearheaded the purchase of the tape recorder and the EEOC filings-all of which contain the same recitation of alleged discrimination. According to the Doedens, Soto recruited other workers to join the filings and faked signatures in an attempt to increase the number of workers filing discrimination claims against KCD.
In November 2004, the charging parties filed complaints with the EEOC alleging Title VII violations by KCD. The EEOC conducted a probable cause inquiry and attempted conciliation before commencing this action in September 2005. The EEOC argues that KCD violated Title VII by engaging in a pattern or practice of national origin discrimination and tolerating a hostile work environment. KCD now moves the court to dismiss Romero’s claim as time-barred and moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.
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DISCUSSION
I. Summary Judgment Standard The moving party in a motion for summary judgment will prevail if it demonstrates to the court that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. See id. at 252.
On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the nonmoving party. See id. at 255. The nonmoving party, however, may not rest upon mere denials or allegations in the pleadings but must set forth specific facts sufficient to raise a genuine issue for trial. See Celotex, 477 U.S. at 324. Moreover, if a nonmoving party cannot support each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. Id. at 322-23. Summary judgment should “seldom be used in employment-discrimination cases.” Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994).
II. Employment Discrimination Claims
A. Statute of Limitations *4 As an initial matter, defendant argues that Romero’s claims should be dismissed because he did not bring a lawsuit within 90 days of receiving his right-to-sue letter and his claims are barred by Title VII’s 300-day statute of limitations. A Title VII employment discrimination charge must be filed within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). Unlike private litigants, however, the relevant statute of limitations does not apply when the EEOC brings a pattern or practice suit because such an action is based on evidence of harassment against many employees gathered over a course of time. See 42 U.S.C. § 2000e-6; see also EEOC v. Mitsubishi Motor Mfg., Inc., 990 F.Supp. 1059, 1083-84 (C.D.Ill.1998); EEOC v. Scolari Warehouse Mkts., Inc., --- F.Supp.2d ----, No. 04-0229, 2007 U.S. Dist. LEXIS 20719, at *41-42 (D.Haw. Jan. 29, 2007). Thus, individuals with allegations outside of the 300-day period may be members of a pattern or practice claim. However, to the extent that the EEOC seeks specific relief for a charging party, even within the context of a pattern or practice suit, an individual party must comply with the statute of limitations. See Mitsubishi, 990 F.Supp. at 1086-87. Therefore, although a charging party who failed to file within the statute of limitations period is barred from individual recovery, his or her allegations can be considered as evidence in a pattern or practice case.
This is the situation in which Romero finds himself. Romero worked at KCD in 2000 but did not file his EEOC charge until December 5, 2004. Although the EEOC has suggested that Romero may have worked for defendant in 2004 as well, the EEOC has offered no proof of this. Accordingly, Romero’s allegations fall outside of the 300-day limitations period set forth in Title VII, and he is barred from any individual recovery in this action. However, the EEOC may properly use Romero’s allegations as evidence that defendant engaged in a pattern or practice of discrimination since 2000.
B. Pattern or Practice of National Origin Harassment Defendant points to deficiencies in each charging party’s case and argues that the EEOC has failed to establish a prima facie case of national origin harassment. In a pattern or practice case, however, the EEOC need not show that any specific charging party was the victim of discrimination. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977). The pattern or practice theory of discrimination allows the EEOC to prevent widespread discrimination, and the relevant inquiry is whether the employer regularly discriminated against a group protected by Title VII. See id. at 360-61. To succeed, the EEOC must establish that defendant’s behavior, in the aggregate, supports an inference that defendant had a discriminatory policy-in other words, that it tolerated employment discrimination as part of its “standard operating procedure.” See id. at 336.
*5 The EEOC bases its pattern or practice claim on a hostile work environment theory. There are inherent difficulties with this approach, as a pattern or practice theory focuses on widespread discrimination against a protected group while a hostile work environment theory assesses whether harassment to which an individual party was exposed was so pervasive that it
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E.E.O.C. v. KCD Const., Inc., Not Reported in F.Supp.2d (2007)
affected the terms or conditions of employment. See Mitsubishi, 990 F.Supp. at 1071 (sexual harassment claim); EEOC v. Int’ l Profit Assocs., Inc., No. 01 C 4427, 2007 U.S. Dist. LEXIS 19070, at *41-42 (N.D.Ill. Mar. 16, 2007) (same). The difference between emphasis on the collective versus the individual, however, does not impact the EEOC’s method of proving its pattern or practice case.2 To do so, the EEOC must demonstrate by a preponderance of the evidence that an objectively reasonable person would find the existence of a hostile environment of national origin harassment and a company policy of tolerating a workforce permeated with severe and pervasive harassment. See Mitsubishi, 990 F.Supp. at 1073. The court finds that issues of fact exist as to whether KCD had a policy of tolerating harassment of its Hispanic employees. Therefore, the EEOC’s success on a pattern or practice theory hinges on its ability to establish the elements of a hostile work environment claim.
C. Hostile Work Environment An employee experiences a hostile work environment when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ “ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)); Palesch v. Mo. Comm’n on Human Rights, 233 F.3d 560, 566 (8th Cir.2000). To succeed on a hostile work environment claim, a plaintiff must show that (1) he belongs to a protected group, (2) he was subject to unwelcome harassment, (3) a causal nexus exists between the harassment and the protected group status, (4) the harassment affected a term, condition, or privilege of his employment and (5) the defendant knew or should have known of the harassment and failed to take proper action. Tademe v. St. Cloud State Univ., 328 F.3d 982, 991 (8th Cir.2003). If one or more of the people creating the hostile environment are supervisors, a plaintiff need not prove the fifth element. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). In such a scenario, a defendant can avoid liability if it can establish that it implemented an effective program for reporting and resolving harassment, the program was available to the plaintiff and the plaintiff failed to take advantage of it. See id. at 806-07.
In deciding whether a plaintiff has demonstrated that the harassment affected a term, condition or privilege of employment, the court looks at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir.2002) (citing Harris, 510 U.S. at 21-23). To avoid imposing “a code of workplace civility,” the threshold for actionable harm is high. Id. The harassment must be so intimidating, offensive, or hostile that it “poisoned the work environment.” Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967 (8th Cir.1999) (citations omitted). The “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” does not rise to the level of a Title VII violation. Meritor Sav. Bank, 477 U.S. at 67. Rather, the work environment must be “dominated by racial hostility and harassment.” Ways v. City of Lincoln, 871 F.2d 750, 754 (8th Cir.1989).
*6 It is undisputed that the charging parties belong to a protected group. Defendants argue that any treatment experienced by the charging parties was not unwelcome because some of them returned to KCD in successive seasons. The court will not speculate about the reasons-economic or otherwise-that prompted the workers to leave or return to KCD. Soto testified that on multiple occasions during his tenure at KCD he confronted the Doedens and told them on behalf of the other Hispanic employees that they were tired of the abuse and harassment. Romero similarly discussed his dissatisfaction over these conditions with Dennis and then Ken in 2000.3 At this stage, there is a dispute of fact as to whether the treatment experienced by the charging parties was unwelcome.
Defendant next argues that the EEOC has not established a causal nexus between the alleged harassment and the charging parties’ protected status. The Doedens claim that they did not use racial slurs or direct the copious amounts of profanity at the Hispanic employees. The charging parties, however, testified that the Doedens singled them out for harassment and used terminology such as “wetbacks” and “fucking Mexicans.” Such allegations, if true, establish a link between the workers’ protected status and the harassing treatment. Further, although the tape recordings do not contain evidence of racial slurs, they are rife with profanity-much of it addressed to “you guys” or “you dumb fuckers,” contradicting the Doedens’ deposition testimony that they did not swear at the Hispanic workers. The court finds there are factual disputes as to whether the Doedens used racial slurs or verbally and physically harassed only the Hispanic workers.
As to the terms or conditions of employment, the charging parties testified that they endured daily harassment, both verbal and physical, that left them feeling helpless and marginalized. They reported being berated verbally, hit on the head, spit at, shot at with nail guns, driven at by skid loaders and pushed around while in the portable latrines. The Doedens deny these accusations. Therefore, factual issues remain as to whether the charging parties have depicted a work environment
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E.E.O.C. v. KCD Const., Inc., Not Reported in F.Supp.2d (2007)
“dominated” by racial hostility and harassment that affected the terms and conditions of their employment.
Finally, defendant argues that the EEOC has not demonstrated that the Doedens knew or should have known about the alleged harassment. However, because the people perpetrating the alleged harassment were all KCD supervisors, the EEOC need not prove this element. See Faragher, 524 U.S. at 807 (1998). Further, defendant had no written harassment grievance policy other than the posters in the trailer, only one of which was in Spanish. To the extent that the charging parties followed the procedures on these posters by filing complaints with the EEOC, defendant is foreclosed from asserting an affirmative defense under Faragher.
Viewing all evidence in a light most favorable to the EEOC, there remain genuine issues of material fact such that summary judgment is unwarranted. Indeed, a host of disputed facts exist with respect to the Doedens’ behavior and the charging parties’ responses, reflecting the very reason courts are hesitant to grant summary judgment in employment discrimination actions. For these same reasons, summary judgment is not warranted on the EEOC’s pattern or practice claim.

CONCLUSION
*7 Therefore, IT IS HEREBY ORDERED that defendant’s motion to dismiss Efren Romero as a charging party and for summary judgment [Doc. No. 69] is denied.

Parallel Citations

100 Fair Empl.Prac.Cas. (BNA) 984, 89 Empl. Prac. Dec. P 42,829

Footnotes

1

As codified in 42 U.S.C. § 2002e-2(a)(1), Title VII provides that it is unlawful for an employer

to fail or refuse to hire or to discharge, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

2

Instead, it is an issue when assessing potential remedies. Injunctive relief is often most appropriate for a pattern or practice case

while the individual focus in a hostile work environment claim requires compensatory and punitive damages to make victims

whole. See Int’l Profit, 2007 U.S. Dist. LEXIS 19070, at *45-47.

3

In fact, Romero claims that his complaints prompted Ken to fire him in 2000. Since the EEOC has not asserted a claim of

retaliation, however, the court will not speculate as to the cause of Romero’s termination.

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CLOSED, CV, PROTO, T7
U.S. District Court U.S.District Court Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:05-cv-02122-DSD-SRN

Equal Employment Opportunity Commission v. KCD Construction, Inc. Assigned to: Senior Judge David S. Doty Referred to: Magistrate Judge Susan R. Nelson Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/14/2005 Date Terminated: 07/20/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Jean P Kamp Equal Employment Opportunity Commission 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

Tina Burnside Equal Employment Opportunity Commission 129 W Trade St Ste 400 Charlotte, NC 28202 704-344-6876 Fax: 704-344-6780 Email: tina.burnside@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant KCD Construction, Inc.

represented by Stephen M Thompson Friederichs & Thompson, PA 1120 E 80th St, Ste 106 Bloomington, MN 55420 952-814-0110 Fax: 952-814-9005 Email: stevet@friederichs-thompson.com

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tammy P Friederichs Friederichs & Thompson, PA 1120 E 80th St, Ste 106 Bloomington, MN 55420 952-814-0110 Fax: 952-814-9005 Email: tammyf@friederichs-thompson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/14/2005
09/14/2005 09/30/2005
10/10/2005 10/10/2005 10/17/2005
11/10/2005
11/15/2005 11/15/2005
11/15/2005

# Docket Text
1 COMPLAINT with Jury Demand against KCD Construction, Inc. assigned to Judge David S. Doty per Civil Rights referred to Magistrate Judge Susan R. Nelson 4:05AD234, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(JMH) (Entered: 09/14/2005)
Summons Issued as to KCD Construction, Inc. (JMH) (Entered: 09/14/2005)
2 SUMMONS Returned Executed by Equal Employment Opportunity Commission. KCD Construction, Inc. served on 9/22/2005, answer due 10/12/2005. (JLB) (Entered: 09/30/2005)
3 ANSWER to Complaint by KCD Construction, Inc..(Thompson, Stephen) (Entered: 10/10/2005)
4 AFFIDAVIT of Service by KCD Construction, Inc. re 3 Answer to Complaint (Thompson, Stephen) (Entered: 10/10/2005)
5 NOTICE OF PRETRIAL CONFERENCE Pretrial Conference set for 11/22/2005 03:30 PM In Chambers Hearing before Magistrate Judge Susan R Nelson. Signed by Magistrate Judge Susan R Nelson on 10/17/05. (JMH) (Entered: 10/17/2005)
6 REPORT Joint Rule 26(f) Report by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Burnside, Tina) (Entered: 11/10/2005)
7 MOTION for Partial Summary Judgment by Equal Employment Opportunity Commission. (Burnside, Tina) (Entered: 11/15/2005)
8 NOTICE of Hearing on Motion 7 MOTION for Partial Summary Judgment: Motion Hearing set for 1/20/2006 10:30 AM in Minneapolis - Courtroom 14W before Senior Judge David S Doty. (Burnside, Tina) (Entered: 11/15/2005)
9 MEMORANDUM in Support re 7 MOTION for Partial Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 unpublished case Hoglund v. Daimler Chrysler Corp.# 2 LR7.1 Word Count Compliance Certificate)(Burnside, Tina) (Entered: 11/15/2005)

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02/08/2006 02/08/2006

10 Declaration of Tina Burnside in Support of 9 Memorandum in Support of Motion filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1# 2 Exhibit No. 2# 3 Exhibit No. 3)(Burnside, Tina) (Entered: 11/15/2005)
11 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 7 MOTION for Partial Summary Judgment, 8 Notice of Hearing on Motion, 9 Memorandum in Support of Motion, 10 Declaration in Support (Burnside, Tina) (Entered: 11/15/2005)
12 RULE 7.1 DISCLOSURE STATEMENT by KCD Construction, Inc. that there is no such parent or publicly held corporation to report. (Friederichs, Tammy) (Entered: 11/22/2005)
13 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 12 Rule 7.1 Disclosure Statement (Friederichs, Tammy) (Entered: 11/22/2005)
14 Minute Entry for proceedings held before Magistrate Judge Susan R Nelson : Rule 16 Scheduling Conference held on 11/22/2005. (JLB) (Entered: 11/28/2005)
15 PRETRIAL SCHEDULING ORDER: Amended Pleadings due by 12/19/2005. Discovery due by 8/1/2006. Motions (non-disp) due 8/15/2006. Motions (disp) due by 9/1/2006. Ready for trial due by 1/2/2007. Signed by Magistrate Judge Susan R Nelson on 11/28/05. (JMH) (Entered: 11/28/2005)
16 NOTICE OF SETTLEMENT CONFERENCE Settlement Conference set for 3/16/2006 09:30 AM In Chambers Suite 9E Hearing before Magistrate Judge Susan R Nelson. Signed by Magistrate Judge Susan R Nelson on 11/28/05. (JMH) (Entered: 11/28/2005)
17 MEMORANDUM in Opposition re 7 MOTION for Partial Summary Judgment filed by KCD Construction, Inc.. (Attachments: # 1 Certificate LR 7.1 Compliance Certificate)(Friederichs, Tammy) Modified text on 1/3/2006 (jlb). (Entered: 12/30/2005)
18 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 17 Memorandum in Opposition to Motion (Friederichs, Tammy) (Entered: 12/30/2005)
19 REPLY re 17 Memorandum in Opposition to Motion for Partial Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 LR7.1 Word Count Compliance Certificate # 2 Certificate of Service)(Burnside, Tina) (Entered: 01/04/2006)
20 (TEXT ENTRY ONLY) Minute Entry for proceedings held before Judge David S Doty : Motion Hearing held on 1/20/2006 re 7 MOTION for Partial Summary Judgment filed by Equal Employment Opportunity Commission - argued, submitted and taken under advisement. Order forthcoming. (Court Reporter Lorilee Fink) (CLB) (Entered: 01/20/2006)
21 MOTION for Protective Order by Equal Employment Opportunity Commission. (Burnside, Tina) (Entered: 02/08/2006)
22 NOTICE OF HEARING ON MOTION 21 MOTION for Protective Order: Motion Hearing set for 2/24/2006 09:30 AM in Minneapolis - Courtroom 9E before Magistrate Judge Susan R Nelson. (Burnside, Tina) (Entered: 02/08/2006)

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23 MEMORANDUM in Support re 21 MOTION for Protective Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Burnside, Tina) (Entered: 02/08/2006)
24 Declaration of Tina Burnside in Support of 21 MOTION for Protective Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix # 2 Exhibit 1# 3 Exhibit 2, part 1# 4 Exhibit 2, part 2# 5 Exhibit 3# 6 Exhibit 4-8# 7 Exhibit 9-10)(Burnside, Tina) (Entered: 02/08/2006)
25 MOTION to Compel Discovery by Equal Employment Opportunity Commission. (Burnside, Tina) (Entered: 02/08/2006)
26 NOTICE OF HEARING ON MOTION 25 MOTION to Compel Discovery: Motion Hearing set for 2/24/2006 09:30 AM in Minneapolis - Courtroom 9E before Magistrate Judge Susan R Nelson. (Burnside, Tina) (Entered: 02/08/2006)
27 MEMORANDUM in Support re 25 MOTION to Compel Discovery filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix)(Burnside, Tina) (Entered: 02/08/2006)
28 LR7.1 WORD COUNT COMPLIANCE CERTIFICATE by Equal Employment Opportunity Commission re 27 Memorandum in Support of Motion filed by Equal Employment Opportunity Commission. (Burnside, Tina) (Entered: 02/08/2006)
29 Declaration of Tina Burnside in Support of 25 MOTION to Compel Discovery filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1-4# 2 Exhibit 5-10# 3 Exhibit 11-13)(Burnside, Tina) (Entered: 02/08/2006)
30 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 21 MOTION for Protective Order, 22 Notice of Hearing on Motion, 23 Memorandum in Support of Motion, 24 Declaration in Support, (Burnside, Tina) (Entered: 02/08/2006)
31 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 25 MOTION to Compel Discovery, 26 Notice of Hearing on Motion, 27 Memorandum in Support of Motion, 28 LR7.1 Word Count Compliance Certificate, 29 Declaration in Support (Burnside, Tina) (Entered: 02/08/2006)
32 MOTION to Compel by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 02/10/2006)
33 NOTICE OF HEARING ON MOTION 32 MOTION to Compel: Motion Hearing set for 2/24/2006 09:30 AM in Minneapolis - Courtroom 9E before Magistrate Judge Susan R Nelson. (Friederichs, Tammy) (Entered: 02/10/2006)
34 MEMORANDUM in Support re 32 MOTION to Compel filed by KCD Construction, Inc.. (Attachments: # 1 Exhibit Index# 2 Exhibits A-B# 3 Exhibit C# 4 Exhibit D# 5 Exhibits E-I# 6 Exhibit J# 7 Exhibits K-Z# 8 LR7.1 Word Count Compliance Certificate)(Friederichs, Tammy) (Entered: 02/10/2006)
35 AFFIDAVIT of Tammy P. Friederichs in SUPPORT OF 32 MOTION to Compel filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 02/10/2006)
36 AFFIDAVIT of Stephen M. Thompson in SUPPORT OF 32 MOTION to Compel filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 02/10/2006)

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02/17/2006 02/17/2006 02/17/2006 02/17/2006 02/17/2006 02/24/2006
03/06/2006 03/15/2006 03/15/2006

37 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 32 MOTION to Compel, 33 Notice of Hearing on Motion, 34 Memorandum in Support of Motion,, 35 Affidavit in Support of Motion, 36 Affidavit in Support of Motion (Friederichs, Tammy) (Entered: 02/10/2006)
38 MEMORANDUM in Opposition re 32 MOTION to Compel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix Capellupo v FMC Corp.# 2 Appendix Ellenberg v Tuffys# 3 LR7.1 Word Count Compliance Certificate)(Burnside, Tina) (Entered: 02/17/2006)
39 DECLARATION of Tina Burnside in Opposition to 32 MOTION to Compel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6 part 1# 7 Exhibit 6 part 2# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11)(Burnside, Tina) (Entered: 02/17/2006)
40 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 38 Memorandum in Opposition to Motion, 39 Declaration in Opposition, to Defendant's Motion to Compel (Burnside, Tina) (Entered: 02/17/2006)
41 MEMORANDUM in Opposition re 21 MOTION for Protective Order filed by KCD Construction, Inc.. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Friederichs, Tammy) (Entered: 02/17/2006)
42 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 41 Memorandum in Opposition to Motion for Protective Order (Friederichs, Tammy) (Entered: 02/17/2006)
43 MEMORANDUM in Opposition re 25 MOTION to Compel Discovery filed by KCD Construction, Inc.. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Friederichs, Tammy) (Entered: 02/17/2006)
44 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 43 Memorandum in Opposition to Motion to Compel Discovery (Friederichs, Tammy) (Entered: 02/17/2006)
45 Minute Entry and ORDER for proceedings held before Magistrate Judge Susan R Nelson : granting in part and denying in part 32 Motion to Compel, granting 21 Motion for Protective Order, granting in part and denying in part 25 Motion to Compel, Motion Hearing held on 2/24/2006. (Tape #519, 520) No other Order to be issued. Signed by Magsitrate Judge Susan R. Nelson on 2/24/06.(JLB) (Entered: 02/28/2006)
46 ORDER granting 7 Motion for Partial Summary Judgment (Written Opinion). Signed by Judge David S Doty on 3/6/06. (PJM) (Entered: 03/06/2006)
47 STIPULATION for Protective Order by Equal Employment Opportunity Commission, KCD Construction, Inc.. (Thompson, Stephen) (Entered: 03/15/2006)
48 PROTECTIVE ORDER that the parties shall abide by all terms andduties outlined in the Stipulation for Protective Order [Doc. No. 47]. Signed by Magistrate Judge Susan R Nelson on 3/15/06. (JMH) (Entered: 03/15/2006)

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49 Minute Entry for proceedings held before Magistrate Judge Susan R Nelson : Telephone Conference held on 4/11/2006. (JLB) (Entered: 04/11/2006)
50 STIPULATION for Protective Order by Equal Employment Opportunity Commission, KCD Construction, Inc.. (Burnside, Tina) (Entered: 04/19/2006)
51 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 50 Stipulation for Protective Order (Burnside, Tina) (Entered: 04/19/2006)
52 PROTECTIVE ORDER re 50 Stipulation. Signed by Magistrate Judge Susan R Nelson on 4/20/06. (JLB) (Entered: 04/20/2006)
53 MOTION for Sanctions by Equal Employment Opportunity Commission. (Burnside, Tina) (Entered: 05/01/2006)
54 NOTICE OF HEARING ON MOTION 53 MOTION for Sanctions: Motion Hearing set for 5/15/2006 01:30 PM in Minneapolis - Courtroom 9E before Magistrate Judge Susan R Nelson. (Burnside, Tina) (Entered: 05/01/2006)
55 MEMORANDUM in Support re 53 MOTION for Sanctions filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix Quela v. Payco-General American Credits# 2 LR7.1 Word Count Compliance Certificate)(Burnside, Tina) (Entered: 05/01/2006)
56 Declaration of Tina Burnside in Support of 53 MOTION for Sanctions filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit(s) 1 to 5)(Burnside, Tina) (Entered: 05/01/2006)
57 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 55 Memorandum in Support of Motion, 56 Declaration in Support, 53 MOTION for Sanctions, 54 Notice of Hearing on Motion for Sanctions (Burnside, Tina) (Entered: 05/01/2006)
58 MEMORANDUM in Opposition re 53 MOTION for Sanctions filed by KCD Construction, Inc.. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Friederichs, Tammy) (Entered: 05/08/2006)
59 AFFIDAVIT of Nicolas Guadalupe Iracheta in OPPOSITION TO 53 MOTION for Sanctions filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 05/08/2006)
60 AFFIDAVIT of Yolanda Lizette Iracheta in OPPOSITION TO 53 MOTION for Sanctions filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 05/08/2006)
61 AFFIDAVIT of Agustin Alberto Iracheta-Rubio in OPPOSITION TO 53 MOTION for Sanctions filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 05/08/2006)
62 AFFIDAVIT of Kenneth Doeden in OPPOSITION TO 53 MOTION for Sanctions filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 05/08/2006)
63 AFFIDAVIT of Amy Flom in OPPOSITION TO 53 MOTION for Sanctions filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 05/08/2006)

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64 AFFIDAVIT of Stephen M. Thompson in OPPOSITION TO 53 MOTION for Sanctions filed by KCD Construction, Inc.. (Attachments: # 1 Exhibits A-I)(Friederichs, Tammy) (Entered: 05/08/2006)
65 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 60 Affidavit in Opposition to Motion, 61 Affidavit in Opposition to Motion, 64 Affidavit in Opposition to Motion, 62 Affidavit in Opposition to Motion, 58 Memorandum in Opposition to Motion, 63 Affidavit in Opposition to Motion, 59 Affidavit in Opposition to Motion (Friederichs, Tammy) (Entered: 05/08/2006)
66 AMENDED NOTICE of Hearing on Motion 53 MOTION for Sanctions: Motion Hearing set for 7/10/2006 02:30 PM in Minneapolis - Courtroom 9E before Magistrate Judge Susan R Nelson. (Attachments: # 1 Certificate of Service)(Burnside, Tina) (Entered: 05/16/2006)
67 Letter re: withdrawal of motion re 55 Memorandum in Support of Motion, 56 Declaration in Support, 53 MOTION for Sanctions, 57 Certificate of Service, 66 Amended Notice of Hearing on Motion, 54 Notice of Hearing on Motion from Tina Burnside. (Attachments: # 1 Certificate of Service)(Burnside, Tina) (Entered: 06/21/2006)
68 ORDER 1. Defendant's request to compel the audio information redacted by Plaintiff is DENIED. Signed by Magistrate Judge Susan R Nelson on 6/26/06. (JMH) (Entered: 06/26/2006)
69 MOTION for Summary Judgment by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
70 NOTICE OF HEARING ON MOTION 69 MOTION for Summary Judgment: Motion Hearing set for 10/20/2006 09:45 AM in Minneapolis - Courtroom 14W before Senior Judge David S Doty. (Friederichs, Tammy) (Entered: 09/01/2006)
71 MEMORANDUM in Support re 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
72 LR7.1 WORD COUNT COMPLIANCE CERTIFICATE by KCD Construction, Inc. re 71 Memorandum in Support of Motion filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
73 AFFIDAVIT of James A. Hoekman in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
74 AFFIDAVIT of Agustin Alberto Iracheta-Rubio in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
75 AFFIDAVIT of Nicolas Guadalupe Iracheta in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
76 AFFIDAVIT of Otoniel Rivera in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)

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77 AFFIDAVIT of Otoniel Rivera (Supplemental) in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
78 AFFIDAVIT of Stephen M Thompson in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Friederichs, Tammy) (Entered: 09/01/2006)
79 AFFIDAVIT of Tammy P Friederichs in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Attachments: # 1 Exhibit Index# 2 Bravo Depo Excerpts# 3 C Doeden Depo Excerpts# 4 D Doeden Depo Excerpts# 5 K Doeden Depo Excerpts# 6 Hernandez Depo Excerpts# 7 Hoekman Depo Excerpts# 8 Y Iracheta Depo Excerpts# 9 Schreier Depo Excerpts# 10 Morales Depo Excerpts# 11 Santos Depo Excerpts# 12 Soto Depo Excerpts# 13 Ex 1-4# 14 Ex 5-11# 15 Ex 12)(Friederichs, Tammy) (Entered: 09/01/2006)
80 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 71 Memorandum in Support of Motion, 72 LR7.1 Word Count Compliance Certificate, 74 Affidavit in Support of Motion, 76 Affidavit in Support of Motion, 79 Affidavit in Support of Motion,,, 75 Affidavit in Support of Motion, 73 Affidavit in Support of Motion, 70 Notice of Hearing on Motion, 78 Affidavit in Support of Motion, 69 MOTION for Summary Judgment, 77 Affidavit in Support of Motion (Friederichs, Tammy) (Entered: 09/01/2006)
81 MEMORANDUM in Opposition re 69 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Burnside, Tina) (Entered: 09/28/2006)
82 DECLARATION of Tina Burnside in Opposition to 69 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit(s) 1 to 4# 2 Exhibit(s) 5# 3 Exhibit(s) Aldoy deposition excerpts# 4 Exhibit(s) Bravo deposition excerpts# 5 Exhibit(s) Chad Doeden deposition excerpts# 6 Exhibit(s) Dennis Doeden deposition excerpts# 7 Exhibit(s) Hernandez deposition excerpts# 8 Exhibit(s) Hoekman deposition excerpts# 9 Exhibit(s) Kenneth Doeden deposition excerpts# 10 Exhibit(s) Nicholas Iracheta deposition excerpts# 11 Exhibit(s) Romero deposition excerpts# 12 Exhibit(s) Rubio deposition excerpts# 13 Exhibit(s) Santos deposition excerpts# 14 Exhibit(s) Soto deposition excerpts part 1# 15 Exhibit(s) Soto deposition excerpts part 2# 16 Exhibit(s) Yolanda Iracheta deposition excerpts)(Burnside, Tina) (Entered: 09/28/2006)
83 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 82 Declaration in Opposition, 81 Memorandum in Opposition to Motion (Burnside, Tina) Modified text on 9/29/2006 (jc). (Entered: 09/28/2006)
84 LR7.1 WORD COUNT COMPLIANCE CERTIFICATE by Equal Employment Opportunity Commission re 81 Memorandum in Opposition to Motion filed by Equal Employment Opportunity Commission. (Burnside, Tina) (Entered: 09/29/2006)
85 REPLY re 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Friederichs, Tammy) (Entered: 10/06/2006)

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86 AFFIDAVIT of Tammy P Friederichs in SUPPORT OF 69 MOTION for Summary Judgment filed by KCD Construction, Inc.. (Attachments: # 1 Deposition Excerpts# 2 Ex. 13)(Friederichs, Tammy) (Entered: 10/06/2006)
87 CERTIFICATE OF SERVICE by KCD Construction, Inc. re 86 Affidavit in Support of Motion, 85 Reply (Friederichs, Tammy) (Entered: 10/06/2006)
88 *TEXT ONLY ENTRY* Minute Entry for proceedings held before Judge David S Doty : Motion Hearing held on 10/20/2006 re 69 MOTION for Summary Judgment filed by KCD Construction, Inc. - argued and taken under advisement. Order forthcoming. (Court Reporter Lorilee Fink) (PJM) (Entered: 10/20/2006)
89 NOTICE of Change of Address by Tina Burnside (Attachments: # 1 Certificate of Service)(Burnside, Tina) (Entered: 11/02/2006)
90 NOTICE OF SETTLEMENT CONFERENCE Settlement Conference set for 11/28/2006 10:30 AM, In Chambers, Suite 9E, before Magistrate Judge Susan R. Nelson. Signed by Magistrate Judge Susan R. Nelson on 11/02/2006. (jc) (Entered: 11/02/2006)
91 Minute Entry for proceedings held before Magistrate Judge Susan R. Nelson : Settlement Conference held on 11/28/2006. Case did not settle. (jc) (Entered: 11/29/2006)
92 ORDER denying 69 Motion for Summary Judgment (Written Opinion). Signed by Judge David S. Doty on 4/16/2007. (PJM) (Entered: 04/16/2007)
93 JURY TRIAL NOTICE Jury Trial set for 7/23/2007 09:00 AM in Minneapolis Courtroom 14W before Senior Judge David S. Doty. (PJM) (Entered: 04/16/2007)
94 NOTICE OF FINAL SETTLEMENT CONFERENCE Settlement Conference set for 6/21/2007 09:30 AM in Chambers, Suite 9E, Hearing before Magistrate Judge Susan R. Nelson. Signed by Magistrate Judge Susan R. Nelson on 4/17/07. (JMH) (Entered: 04/17/2007)
95 Minute Entry for proceedings held before Magistrate Judge Susan R. Nelson : Settlement Conference held on 6/21/2007. Final Settlement Conference held. Settlement Conference is continued. The parties are directed to report to the Court no later than June 27, 2007 on the status of settlement of this matter. (jc) (Entered: 06/22/2007)
96 ORDER DISMISSING CASE. Signed by Judge David S. Doty on 7/20/2007. (CLB) (Entered: 07/20/2007)
97 CONSENT DECREE. Signed by Judge David S. Doty on 7/25/2007. (PJM) (Entered: 07/25/2007)
98 STIPULATION of Dismissal With Prejudice by Equal Employment Opportunity Commission, KCD Construction, Inc., Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Burnside, Tina) (Entered: 07/25/2007)
99 ORDER For Dismissal With Prejudice re 98 Stipulation of Dismissal filed by Equal Employment Opportunity Commission, KCD Construction, Inc. Signed by

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 Federal Court Bars Employers from Making Issue of Immigration Status ...

http://www.eeoc.gov/press/3-10-06c.html

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE MARCH 10, 2006

CONTACT: TTY:

Tina Burnside Senior Trial Attorney (612) 335-4047 (612) 335-4045

Jean P. Kamp Associate Regional Attorney (312) 353-7719

John Hendrickson Regional Attorney (312) 353-8551

FEDERAL COURT BARS EMPLOYERS FROM MAKING ISSUE OF IMMIGRATION STATUS IN DISCRIMINATION LAWSUITS
In Minneapolis Case, Court Rules EEOC Not Subject to Private-Party Rules in Class Suits
MINNEAPOLIS - The U.S. Equal Employment Opportunity Commission (EEOC) announced today that the federal district court here has held that employers cannot make an issue of immigration status in employment discrimination lawsuits and that the EEOC is not required to comply with the rules applicable to private parties when the agency sues on behalf of a class of victims of discrimination.
In its lawsuit, EEOC v. KCD Construction, Inc., D. Minn. No. 05-2122, the EEOC alleges that KCD Construction subjected Hispanic employees to harassment on the basis of their national origin. The harassment included, according to the EEOC, use of derogatory names and comments as well as physically striking Hispanic employees with tools and spitting on them. In defending the case, KCD Construction has argued that EEOC must comply with the same complex requirements applicable to class actions brought by private parties, and that KCD Construction is free to inquire into the immigration and citizenship status of the victims. Both positions have now been rejected by the court, the most recent decision coming earlier this week.
John Hendrickson, regional attorney for EEOC's Chicago District, which includes Minnesota, said, "The court's rulings on these important issues were not unanticipated, because they follow well- established existing law. These principles are absolutely critical to our ability to enforce federal law through class litigation and, at the same time, to protect the victims of discrimination from intimidation. That is to say, they are truly essential to the EEOC's pursuit of the public interest."
U.S. District Court Judge David S. Doty, in a decision issued Monday, rejected KCD Construction's argument that the EEOC must satisfy Rule 23 of the Federal Rules of Civil Procedure in order to maintain a class action lawsuit. The court found the EEOC is not subject to the rule because the agency seeks monetary relief in addition to injunctive relief.
The district court, citing U.S. Supreme Court precedent, focused on the role of the EEOC in vindicating the public interest "albeit at the behest of and for the benefit of specific individuals."
Tina Burnside, senior trial attorney in the EEOC's Minneapolis office, and lead counsel on the case, said: "The court's decision is important because it clearly states that the EEOC has the authority to bring a class action lawsuit without satisfying Rule 23 requirements regardless of whether it is seeking injunctive relief or compensatory and punitive damages."
The court earlier granted the EEOC's motion for a protective order prohibiting KCD Construction from seeking discovery regarding the Hispanic employees' citizenship, immigration and work permit status. In an Order issued February 28, 2006, U.S. Magistrate Judge Susan Richard Nelson ruled that discovery into the citizenship or legal status of the victims would not be permitted.
"We are pleased with the court's order because Title VII's protections against discrimination apply to all employees whether they are documented or undocumented," Burnside said. "Employers cannot discriminate against employees, and then threaten them by seeking information about their immigration status when they complain."
The EEOC is the federal government agency that enforces the nation's laws prohibiting discrimination in employment based on race, color, sex (including sexual harassment, pregnancy and wage bias), religion, national origin, age, disability, and retaliation. Further information about the Commission is available on its web site at www.eeoc.gov.
This page was last modified on March 10, 2006.

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