Case 2:05-cv-00306-JES-DNF Document 1 Filed 07/01/2005 Page 1 of 5

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Case 2:05-cv-00306-JES-DNF Document 1 Filed 07/01/2005 Page 2 of 5

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Case 2:05-cv-00306-JES-DNF Document 1 Filed 07/01/2005 Page 3 of 5

,ha, pmmo1Cd t<l tho po,ltlO" "I K,oo' P",J,,";on \.f'''''gcr ,",I

<u,1l

rn'mo"on inml,'<J" wage i"",,",", Suil«q"",,,I). Dd,oo"", .,""ounceo

to LI', Renar [lcp""'"""' 'hot Ml ~'I"')' "o"IJ I", "pI'J<in~ R<locr\ J [lunn 'h< pre; iou, K"b" ProducMn \l,,",,~Cf

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Case 2:05-cv-00306-JES-DNF Document 1 Filed 07/01/2005 Page 4 of 5

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 Case 2:05-cv-00306-JES-DNF Document 45 Filed 09/12/2006 Page 1 of 3

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

-vs-

Case No. 2:05-cv-306-FtM-29DNF

STOCK BUILDING SUPPLY, INC., formerly known as Carolina Holdings, Inc., doing business as Stuart Lumber Co.,

Defendant. ______________________________________

ORDER

This cause came on for consideration on the following motion(s) filed herein:

MOTION: MOTION TO TAKE DEPOSITION UNDER FRCP 30(b)(6) OUTSIDE OF THE DISCOVERY PERIOD (Doc. No. 40)
FILED: September 19, 2006 _____________________________________________________________
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.

Plaintiff, the United States Equal Employment Opportunity Commission (“EEOC”) is requesting leave to take a deposition of Defendant, Stock Building Supply, Inc.’s (“Stock”) corporate represent pursuant to Fed.R.Civ.P. 30(b)(6) after the discovery deadline. Stock objects arguing that the EEOC has failed to show good cause to allow a modification of the Scheduling Order, has failed to show excusable neglect for not setting this deposition during the discovery period, as well as other
-1-

Case 2:05-cv-00306-JES-DNF Document 45 Filed 09/12/2006 Page 2 of 3
arguments such as the EEOC has already received many documents responsive to the areas set forth in the Notice of Deposition. The Court tends to agree with Stock that the EEOC has failed to show good cause as to why the deposition of the corporate representative was not taken during the discovery period. The Case Management and Scheduling Order (Doc. 19) clearly states that motions for the extension of the discovery deadline are disfavored and will not be extended absent a showing of good cause. However, the prejudice to the EEOC by not being able to take the deposition of the corporate representative outweighs any prejudice to Stock. The Court will limit the deposition to categories 4 and 7 in the Notice of Deposition as agreed to by the EEOC previously.
IT IS FURTHER ORDERED: 1) The Court will permit the deposition of a corporate representative of Stock to be taken within thirty (30) days from the date of this Order. The parties shall cooperate in the scheduling of this deposition. 2) The deposition will be limited to categories 4 and 7 as set forth in the Notice of Deposition.
MOTION: MOTION TO COMPEL PRODUCTION OF DOCUMENTS (Doc. No. 39)
FILED: August 18, 2006 _____________________________________________________________ THEREON it is ORDERED that the motion is DENIED.
The EEOC is requesting that the Court compel Stock to produce documents in response to a Request for Production of Documents served on July 18, 2006, after 5:00 p.m. Stock responds that it did produce the documents, even though document production was technically after the discovery
-2-

Case 2:05-cv-00306-JES-DNF Document 45 Filed 09/12/2006 Page 3 of 3
deadline. Stock asserts that the EEOC filed its Motion to Compel prior to the response time for the requested document production had run. It appears that Stock is correct, and the EEOC filed its motion prematurely, most likely to preserve its right to file a motion to compel during the discovery period. Stock did respond timely to the production requests. The filing of the Motion to Compel and requiring Stock and the Court to address issues that are essentially moot is a waste of time for both the Court and for counsel for Stock. It is very clear that counsel for the EEOC did not comply with the spirit of Local Rule 3.01(g) when providing a certification that counsel conferred with counsel for Stock prior to filing the Motion to Compel.
IT IS HEREBY FURTHER ORDERED: Based upon the premature filing of the Motion to Compel, within thirty (30) days from the date of this Order, counsel for the EEOC shall pay all the reasonable attorney’s fees incurred by counsel for Stock in filing its Response (Doc. 42).

DONE and ORDERED in Chambers in Ft. Myers, Florida this 12th 2006.

day of September,

Copies: All Parties of Record
-3-

 
 Case 2:05-cv-00306-JES-DNF

----------------------
Document 92 Filed 03/19/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION Case No. 2:05-CV-306-FTM-29 DNF U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
STOCK BUILDING SUPPLY f/k/a CAROLINA HOLDINGS, INC. d/b/a STUART LUMBER CO., Defendant.
CONSENT DECREE This Consent Decree ("Decree") is made and entered into by and between Plaintiff, the Equal Employment Opportunity Commission (hereinafter "EEOC or "the Commission"), and Defendant, Stock Building Supply, Inc. (hereinafter "Stock" or "Defendant"). The Commission and Stock are coIlectively referred to herein as "the Parties." On July 1, 2005, EEOC initiated this action by filing its Complaint against Stock. EEOC's Complaint alleged that Stock discriminated against Louis Schley ("Schley") because of his race, African-American, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. ("Title VII") and Title I of the Civil Rights Act of 1991. EEOC's Complaint alleges that Schley assumed the job duties of the Rebar Production Manager and Stock told him he was promoted to the position, but Stock did not pay Schley for the promotion. Stock has denied all aIlegations of race discrimination against Schley set forth in the EEOC Complaint and has denied violating Title VII. The EEOC and Stock desire to resolve this action and all claims raised by the EEOC Complaint without the time and expenditure of contested litigation. The Parties agree that this

Case 2:05-cv-00306-JES-DNF Document 92 Filed 03/19/2007 Page 2 of 7
Decree shall not constitute an adjudication or finding on the merits of this case. The Parties further agree that this Decree shall not constitute an admission by Stock of liability or wrongdoing. The Parties also desire to express a plan to be embodied in this Decree which will promote and effectuate the purposes of Title VII.
The Parties agree that this Decree resolves any and all claims against Stock alleged in EEOC Charge Number 15L-A3-00047 and the Complaint filed in this action. This Decree is final and binding upon the Parties, their successors and assigns. The Parties further agree that this Decree does not resolve any Charges of Discrimination that may be pending with the EEOC other than the Charge referred to in this paragraph.
The Court has examined this Decree and finds that it is reasonable and just and in accordance with the Federal Rules of Civil Procedure and Title VII. Therefore, upon due consideration of the record herein and being fully advised of the premises, it is hereby ORDERED, ADJUDGED, and DECREED:
JURISDICTION 1. This Court has jurisdiction of the subject matter of this action and over the Parties for the purposes of entering and enforcing this Decree. 2. No party shall contest jurisdiction of this federal court to enforce this Decree, its terms, or the right of the Parties to seek enforcement of the Decree in the event either party breaches any of the terms of this Decree.
2

Case 2:05-cv-00306-JES-DNF Document 92 Filed 03/19/2007 Page 3 of 7
DISCHARGE AND SATISFACTION OF CLAIMS 3. This Decree constitutes a full discharge and satisfaction of any and all claims that have been alleged in the Complaint filed by the EEOC in this Title VII action and arising out of the administrative charge filed by Schley (EEOC Charge Number 15L-A3-00047).
GENERAL PROVISIONS PROHIBITING DISCRIMINATION 4. Stock, its officers, agents, successors, assigns, and managers state that they do not and shall not discriminate against employees in their terms and conditions of employment because of their race in violation of Title VII of the Civil Rights Act of 1964, as amended. 5. Stock, its officers, agents, successors, assigns, and managers state that they do not and shall not engage in conduct in violation of Title VII which adversely affects the terms and conditions of any employees' employment because such employee has (i) filed a charge of race discrimination with the EEOC alleging that Stock has violated Title VII, (ii) cooperated with the EEOC in the investigation and/or prosecution of any charge of race discrimination against Stock alleging a violation of TitIe VII or (iii) has offered testimony or information in the above-styled litigation which resulted in this Decree. 6. Stock has an established written policy of compliance with Title VII. The agreements set forth in paragraphs 4 and 5 are also made pursuant to Stock's written policy. A complete copy of this policy is, and will continue to be, distributed to all current employees within 10 days of employment with Stock. 7. Stock states that it does and shaH take prompt and appropriate action in response to any complaint made by an employee who believes, in good faith, that he or she has been subjected to race discrimination in violation of Title VII.
3

Case 2:05-cv-00306-JES-DNF Document 92 Filed 03/19/2007 Page 4 of 7
TRAINING 8. Stock agrees that it will provide training to the managers and supervisors at its Fort Myers facility located at 3601 Work Drive, Fort Myers, Florida 33916 (hereinafter the "Fort Myers Facility"), regarding compliance with Title VII of the Civil Rights Act of 1964, as amended, including recognizing racial discrimination and the proper procedure to be followed if they become aware of racial discrimination in the workplace and/or if they receive a complaint of such discrimination. Stock agrees to provide such training within six months of the effective date of this Decree. New management employees shall receive such training within 90 days of hire or promotion, preferably during their initial orientation as new management employees. A registry of attendance identifying the contents, date, location and duration of the training, and the names and job titles of attendees shall be retained by Stock for the duration of the Decree. 9. Stock agrees to provide the EEOC with a summary of the information and materials it will use to conduct the training session, with the name of the person and/or persons who are scheduled to conduct the training, with the date and location of the training, the description of the training materials to be used at the training session, and the names and job titles of the managers or supervisors who are scheduled to be in attendance at the training.
POSTING 10. Stock agrees to post within 10 days from the Court's execution of this Decree a copy of the Notice in the form and size attached hereto as Exhibit A. The notice shall be posted at the Fort Myers Facility for the duration of this Decree in a conspicuous location accessible to all employees (i.e., employee bulletin board or lunch room).
4

Case 2:05-cv-00306-JES-DNF Document 92 Filed 03/19/2007 Page 5 of 7
REPORTING 11. Stock agrees to retain any records relating to any complaint and investigation of race discrimination at the Fort Myers Facility for the duration of this Decree and as required by federal law. Stock further agrees to provide to EEOC any documentation associated with any complaint and investigation of race discrimination at the Fort Myers Facility. The documentation shall set forth any allegations of race discrimination made during the previous 6 months and shall include what the allegation was and what action Stock took in response to the complaint. 12. Within 30 days after the entry of this Decree, Stock agrees to submit a report to EEOC confirming the posting of the Notice referenced in paragraph 9. Stock agrees to provide EEOC with a report containing a summary of the information regarding the provisions of paragraphs 8 and 9 within 60 days of any scheduled training. Stock agrees to provide a report including the information described in paragraph lIon each of the following dates: (a) July 30, 2007; (b) November 30,2007; and (c) March 30, 2008.
MONETARY RELIEF 13. Within 15 business days of the Court's entry of this Decree, Stock shall issue a check payable to Louis Schley in the amount of $60,000.
a. $53,000 shall be representative of lost wages, less amounts required to be withheld for federal, state, and local income taxes. Stock will also issue an IRS form W-2 to Schley for this amount and shall be responsible for the payment of the employer's share of any federal, state and local income taxes, and social security withholdings.
b. $7,000 shall be representative of compensatory damages. Stock will also issue an IRS form 1099 to Schley for this amount.
5

Case 2:05-cv-00306-JES-DNF Document 92 Filed 03/19/2007 Page 6 of 7
Within five (5) business days of the Court's entry of this Decree, Schley shall execute a release agreement, attached hereto as Exhibit B. Stock will subsequently issue to Schley the payment set forth in Paragraph 12(a) and 12(b) by Certified Mail at the following address: 2461 Aztec Drive, Fort Myers, Florida 33916. Upon Stock's receipt of the release agreement executed by Schley, Stock shall deliver the payment and IRS forms set forth in Paragraph I2(a) and 12(b) to Schley. Copies of the payments and IRS forms shall be provided to Maria Kate Boehringer, Trial Attorney, U.S. Equal Employment Opportunity Commission, One Biscayne Tower, 2 S. Biscayne Blvd., Ste. 2700, Miami, FL 33131.
SCOPE AND ENFORCEMENT OF DECREE 14. This Decree shall remain in effect until September 30,2008. This Decree applies only to Stock's facility located at 3601 Work Drive, Fort Myers, Florida 33916. 15. The parties shall execute and file a Joint Stipulation for Entry of the Consent Decree.
MISCELLANEOUS 16. Each Party shall bear its own costs and attorneys' fees incurred in this litigation. 17. Nothing in this Consent Decree shall operate as a waiver of Stock's right to the relief set forth in the Court's Order dated September 12, 2006. SO ORDERED, ADJUDGED AND DECREED, this 19th day of March 2007.
/s/ Paul A. Magnuson Paul A. Magnuson United States District Court Judge
6

Case 2:05-cv-00306-JES-DNF Document 92 Filed 03/19/2007 Page 7 of 7

AGREED TO: FOR THE PLAINTIFF, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

By: /s/ Nora E. Curtin Nora E. Curtin Regional Attorney

Date: March 18, 2007

Maria Kate Boehringer Trial Attorney U.S. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower, Suite 2700 2 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 808-1789 Facsimile: (305) 808-1835

AGREED TO: FOR THE CHARGING PARTY, LOUIS SCHLEY

By: /s/ Louis Schley Louis Schley 2461 Aztec Drive Fort Myers, Florida 33916

Date: March 18, 2007

AGREED TO: FOR THE DEFENDANT, STOCK BUILDING SUPPLY, INC.

By: /s/ A. Todd Brown A. Todd Brown, Esq. HUNTON & WILLIAMS LLP Bank of America Plaza Suite 3500 101 South Tryon Street Charlotte, North Carolina 28280 Telephone: (704) 378-4700 Facsimile: (704) 378-4890

Date: March 18, 2007

7

 
 Case 2:05-cv-00306-JES-DNF Document 93 Filed 04/25/2007
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

Page 1 of 3

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

-vs-

Case No. 2:05-cv-306-FtM-29DNF

STOCK BUILDING SUPPLY, INC., formerly known as Carolina Holdings, Inc., doing business as Stuart Lumber Co.,

Defendant. ______________________________________

JUDGMENT IN A CIVIL CASE

Decision by Court.

IT IS ORDERED AND ADJUDGED that judgment is entered pursuant to the Consent Decree filed on March 19, 2007.

Date: April 25, 2007 c: All parties and counsel of record

SHERYL L. LOESCH, CLERK By: /s/ Janet Skipper, Deputy Clerk

Case 2:05-cv-00306-JES-DNF Document 93 Filed 04/25/2007 Page 2 of 3

CIVIL APPEALS JURISDICTION CHECKLIST

1.

Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a)

Appeals from final orders pursuant to 28 U.S.C. Section 1291: Only final orders and judgments of district

courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under

28 U.S.C. Section 158, generally are appealable. A final decision is one that “ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. V. Mestre, 701 F.2d 1365, 1368

(11th Cir. 1983). A magistrate judge’s report and recommendation is not final and appealable until judgment

thereon is entered by a district court judge. 28 U.S.C. Section 636(c).

(b)

In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not

a final, appealable decision unless the district court has certified the judgment for immediate review under

Fed.R.Civ.P. 54(b), Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all

issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable.

Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S. Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988);

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c)

Appeals pursuant to 28 U.S.C. Section 1292(a): Appeals are permitted from orders “granting, continuing,

modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions...” and from

“[i]nterlocutory decrees...determining the rights and liabilities of parties to admiralty cases in which appeals from

final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not

permitted.

(d)

Appeals pursuant to 28 U.S.C. Section 1292(b) and Fed.R.App.P.5: The certification specified in 28 U.S.C.

Section 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The

district court’s denial of a motion for certification is not itself appealable.

(e)

Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases

including, but not limited to: Cohen V. Beneficial Indus. Loan Corp., 337 U.S. 541,546,69 S.Ct. 1221, 1225-26, 93

L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F. 2d 371, 376

(11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S. Ct. 308, 312, 13 L.Ed.2d 199

(1964).

2.

Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276,

1278 (11th Cir. 2001). In civil cases, Fed.R.App.P.4(a) and (c) set the following time limits:

(a)

Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be

filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the

United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within

60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT

NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD - no additional days are provided for

mailing. Special filing provisions for inmates are discussed below.

(b)

Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal

within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule

4(a), whichever period ends later.”

(c)

Fed.R.App.P.4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil

Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order

disposing of the last such timely filed motion.

(d)

Fed.R.App.P.4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to

file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30

days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect

or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did

not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an

extension.

(e)

Fed.R.App.P.4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal

case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day

for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. Section 1746 or a notarized

statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3.

Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable

format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant

-2-

Case 2:05-cv-00306-JES-DNF Document 93 Filed 04/25/2007 Page 3 of 3

4.

Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal,

except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

Rev.: 4/04

-3-

 
 U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2007)
2007 WL 433461 United States District Court, M.D. Florida,
Fort Myers Division. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v. STOCK BUILDING SUPPLY, INC., formerly known as Carolina Holdings, Inc., doing business as Stuart Lumber
Co., Defendant. No. 2:05-cv-306-FtM-29DNF. | Feb. 6, 2007.
Attorneys and Law Firms Michael Wells, U.S. Equal Employment Opportunity Commission, Tampa, FL, for Plaintiff. A. Todd Brown, Jacqueline M. Yount, Hunton & Williams LLP, Charlotte, NC, Juan C. Enjamio, Hunton & Williams, Miami, FL, for Defendant. Opinion
OPINION AND ORDER
JOHN E. STEELE, United States District Judge. *1 This matter comes before the Court on defendant’s Motion for Summary Judgment (Doc. # 49), filed on October 3, 2006. Plaintiff filed a Response on October 20, 2006. (Doc. # 50.) The parties submitted deposition transcripts, affidavits and other exhibits in support of their respective arguments.
I. Summary judgment is appropriate only when the Court is satisfied 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.” Fed.R.Civ.P. 56(c). An issue is “genuine” if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it may affect the outcome of the suit under governing law. Id. The moving party bears the burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hickson Corp. v. Northern Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004).
To avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party’s case, and the elements on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322; Hilburn v. Murata Elecs. N. Am., 181 F.3d 1220, 1225 (11th Cir.1999). If there is a conflict in the evidence, the non-moving party’s evidence is to be believed and all reasonable inferences must be drawn in favor of the non-moving party. Shotz v. City of Plantation, Fl., 344 F.3d 1161, 1164 (11th Cir.2003).
II.
1

U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2007)
Viewed in light most favorable to Plaintiff, the summary judgment facts are as follows: Louis Schley (Schley), an African-American male, was hired by defendant Stock Building Supply f/k/a Carolina Holdings, Inc., d/b/a Stuart Lumber Co. (defendant or Stock Building) in July 1999. In March 2000, Stock Building hired Robert Dunn to serve as the Rebar Division’s Production Manager, where he became Schley’ s direct supervisor. Dunn had been Schley’s direct supervisor on two previous occasions while employed at American Steel. (Docs. # 50-3, p. 11; # 50-28, pp. 59-63.) In August 2001, Stock Building informed Schley that he was being promoted to Production Manager. (Docs.# 1, ¶ 7(b); # 49-16, pp. 3-4.) In the Fall of 2001, Schley was moved into Dunn’s position as Production Manager, with the promotion being announced to the remainder of the Rebar team in January 2002. (Doc. # 50-3, p. 39.) Schley assumed Dunn’s position, moved into Dunn’s office, and performed the job duties and responsibilities which were previously performed by Dunn. (Docs. # 50-3, pp. 41-42; # 50-15, ¶ 7-8.)
*2 By March 2002, Schley had not received the pay increase commensurate with his promotion, despite repeatedly advising Defendant that the wage increase was not reflected in his pay. Schley and his wife met again with Baroni (the Location Manager), Dunn and Brissette (Baroni’s replacement) in July 2002 where the issue of the pay raise was discussed. (Docs. # 50-33, pp. 65-68; # 50-24, pp. 34, 46-48.) At that time Schley was informed that he had already received the salary increase, i.e., he was converted from an hourly employee to a salaried one. (Doc. # 50-33, pp. 65-68.) During that same time period 2001-2002, two non-black employees, Michael Dubay and Richard Moretti, were promoted and received the wage increases associated with their promotions without delay. (Docs. # 50-17; # 50-18.)
On February 26, 2003, the EEOC Commission filed a discrimination charge against Defendant. On July 1, 2005, the EEOC filed a complaint in federal court pursuant to § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(1) alleging that defendant violated Title VII through intentional disparate treatment discrimination resulting from Defendant’s unlawful employment practices. Additional factual allegations are set forth below as needed.
III.
A. Timeliness of Claim Defendant argues that plaintiff’s claim is time-barred because Schley failed to file a timely charge with the EEOC. Defendant asserts that Schley’s complaint stems from a “one time, discrete discriminatory pay act that allegedly occurred in January 2002.” (Doc. # 49-1, p. 8.) Because Schley filed his charge with the EEOC in February 2003, defendant contends that Schley’s filing occurred beyond the prescribed 300-day limitations period, which expired in November 2002. Consequently, Plaintiff is barred from bringing its claim. (Doc. # 49-1, p. 10.)
Plaintiff responds that “each pay check that Schley received after his promotion was a direct result of ongoing discrimination.” (Doc. # 50-1, pp. 15-16.) Plaintiff also argues that the statue of limitations is subject to equitable tolling in this case because Schley was led to believe that he would receive the pay raise. (Id. at 15.) For these two reasons, Schley argues that the discrimination charge was filed in a timely manner.
Title VII requires that “in a deferral state such as Florida, (the complaint with the EEOC) must be filed within 300 days of the last discriminatory act.” EEOC v. Joe’s Stone Crabs, 296 F.3d 1265, 1271 (11th Cir.2002), cert. denied, 539 U.S. 941 (2003) (citing 42 U.S.C. § 2000e-5(e)(1)). Only those practices that occurred within 300 days of the operative EEOC charge can form the basis for Title VII liability. Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1178 (11th Cir.2005), cert. granted, 126 S.Ct. 2965 (2006).
Where a continuing violation is found, a plaintiff can recover for any violations for which the statute of limitations has not expired. Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992). In determining whether a discriminatory employment practice constitutes a continuing violation, the Eleventh Circuit distinguishes between the consequence of a one time violation and the continuation of that violation. Thigpen v. Bibb Cty. Georgia Sheriff’s Dep’t., 223 F.3d 1231, 1243 (11th Cir.2000); Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448 (11th Cir.1993). Only a continuation of the discriminatory employment practice may constitute a continuing violation. Id.
*3 The Court finds that plaintiff’s claim of disparate treatment based on race is one that constitutes a violation which continued until his separation from defendant on or about December 2003. Plaintiff’s claim is analogous to the disparate salary and insurance coverage claims found in Bazemore v. Friday, 478 U.S. 385 (1986), and Beavers v. American Cast Iron
2

U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2007)
Pipe Co., 975 F.2d 792 (11th Cir.1992). In Bazemore, for example, the Supreme Court held that the North Carolina Agricultural Extension Service’s perpetuation of the salary disparities constituted a continuing violation of Title VII. See id. at 395. The Court stated that “each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” See id. at 395-96.
Furthermore, it would be reasonable for a jury to determine that the adverse action took place in July 2002, when Schley was unequivocally informed that Stock Building’s position was that he had already received his pay raise, thus making the 300 day deadline sometime in late April early May 2003. (Doc. # 50-33, p. 66.) Up until the July 2002 meeting, Schley asserts that he continuously complained to various superiors who continuously assured him that they would attempt to rectify the problem with his pay. (Doc. # 49-16, pp. 4-5.) In Wright v. AmSouth Bancorp., 320 F.3d 1198, 1201 (11th Cir.2003), the Court reiterated its position that “a ‘final decision’ that remains uncommunicated to the terminated employee has no impact on the statutory filing deadline.” In the present case there is a genuine issue of material fact as to when Stock Building informed Schley clearly that he had not received a promotion and/or a pay raise. Therefore the Court finds that Plaintiff filed a timely complaint.
B. Race Discrimination Prima Facie Case Title VII was created to protect against discrimination on the basis of, among other classifications, race, gender or alienage. In employment discrimination cases, the plaintiff must show that defendant intentionally discriminated against him, a burden that remains at all times with plaintiff. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000); Texas Dep’t of Cmty. Affairs v.. Burdine, 450 U.S. 248, (1981). Plaintiff must first present a prima facie case of discrimination by either: (1) showing direct evidence of discrimination; (2) satisfying the scheme for circumstantial evidence of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); or (3) by demonstrating, through statistics, a pattern of discrimination. Alphin v. Sears, Roebuck & Co., 940 F.2d 1497 (11th Cir.1991).
1. Direct Evidence The Court finds that plaintiff has not presented direct evidence of race discrimination. “Direct evidence” of discrimination has been defined by the Eleventh Circuit as “evidence from which a trier of fact could reasonably find that the defendant more probably than not discriminated against the plaintiff on the basis of a protected personal characteristic.” Wright v. Southland Corp., 187 F.3d 1287, 1300 (11th Cir.1999). Direct evidence reflects “a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1358 (11th Cir.1999), cert. denied, 529 U.S. 1109 (2000) (quotations omitted); see also Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir.1998). To meet the definition of “direct evidence,” the evidence must indicate that the adverse employment decision was actually motivated by the decision maker’s racial discrimination. See Damon v. Fleming Supermarkets of Fla., 196 F.3d at 1358-59. Thus, “only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race],” will constitute direct evidence of discrimination. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081-82 (11th Cir.1990) (internal citations and quotations omitted).
*4 The only probative piece of direct evidence provided by Schley is an affidavit submitted by his former coworker Celso Hernandez. The affidavit provides in relevant part:
I have heard RJ Dunn shout, when he would get angry, that he did not like Blacks or Hispanics. He referred to the Hispanic employees as “Fucking Indios.” I was at a meeting in 2002 when RJ Dunn told the Hispanic employees in the rebar department that they would have to stay and work overtime (the other employees were allowed to go home on time.) RJ said that if we (Hispanic employees) did not like it, we could go back to picking tomatoes ... RJ Dunn also mocked a Haitian employee named Harry Lewis about his accent. (Doc. # 51-2, ¶ 9.)1
The defense responded by submitting another affidavit in which Hernandez retracted the above statement, explaining that he did not speak or read English well, and that he signed his prior affidavit without understanding its content.2 (Doc. # 54-2, pp. 2-3.) Plaintiff asserts that the only reason for the retraction is that Stock Building threatened to terminate Hernandez. (Doc. # 57-1, p. 2.)
The Court finds that the affidavit does not constitute direct evidence of race being the basis for denying Schley the pay raise. There is no indication as to when Hernandez heard Dunn make these comments, or if they were related to Dunn’s decision
3

U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2007)
not to give Schley the increase in pay. Furthermore, the remaining statements relate to Hispanics and not to the Plaintiff’s race, and thus have no direct bearing on this case. Thus, the Court finds no direct evidence of discrimination based on race.
2. McDonell Douglas Analysis The Court now considers whether circumstantial evidence exists. McDonnell Douglas, 411 U.S. 792.3 Under the McDonnell Douglas standard of proof, a plaintiff must first establish a prima facie case of intentional discrimination. Id. at 802. If plaintiff meets this burden, there is a presumption that intentional discrimination has occurred. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 254 n. 7; Crawford v. Western Elec. Co., 745 F.2d 1373, 1376 (11th Cir.1984).
Under the first step of the McDonnell Douglas test, plaintiff must establish the following elements of a disparate treatment claim: (1) plaintiff is a member of a protected class; (2) plaintiff suffered an adverse employment action; (3) defendant employer treated similarly-situation employees outside of plaintiff’s classification more favorably; and (4) plaintiff was qualified to do the job. See Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir.2006); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). It is clear that Schley, an African-American male, meets the first element. Defendant contends that plaintiff failed to satisfy the second, third and fourth elements.
i. Adverse Employment Action With respect to the second element, Plaintiff asserts that Stock Building promoted him to the position of Production Manager, which entailed an increase in pay, and took actions to formalize the promotion, including providing Schley with a cell phone (Doc. # 50-3, p. 35), business cards (Doc. # 50-26) and announcing the promotion to the entire Rebar Department (Docs. # 50-15, ¶ 7; # 51-3, ¶ 6). Stock Building denies having promoted Schley to the position of Production Manager and therefore he was never entitled to a raise.
*5 In ruling on a motion for summary judgment, the Court is required to consider the evidence in the light most favorable to the nonmoving party, in this case the plaintiff. Johnson v. Booker T. Washington Broad. Servs., 234 F.3d 501, 507 (11th Cir.2000); Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir.1995). The Court does not weigh conflicting evidence or make credibility determinations. Hilburn v. Murata Elecs. N. Am., 181 F.3d at 1225. “If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Tullius v. Albright, 240 F.3d 1317, 1320 (11th Cir.2001)(citing Clemons v. Dougherty County, 684 F.2d 1365, 1369 (11th Cir.1982)). The summary judgment rule applies to employment discrimination cases just as in other cases. Chapman v. A.I Transport, 229 F.3d 1012, 1026 (11th Cir.2000) (en banc ). Therefore, viewing the facts in the light most favorable to the plaintiff, the Court finds that Schley satisfied the second element. A reasonable jury could find that the plaintiff was promoted, as evidenced by Schley receiving a cell phone, business cards (ordered by Dunn’s supervisor) identifying him as Production Manager, and being given Dunn’s old office. (Docs. # 50-3, pp. 35, 59; # 50-5, pp. 13-15.)
ii. Similarly Situated Employees With respect to the third element, Plaintiff asserts that both Dubay and Moretti are similarly situated to Schley, in that both were promoted in 2001 and immediately given the associated raise in pay. Plaintiffs argue that although both Dubay and Moretti worked in different departments (lumber and mill-work respectively) and had different first line supervisors from Schley, their promotions were approved by the same individual, Chris Baroni, the Location Manager. Furthermore, Moretti’s promotion was for the equivalent position to that held by Schley, i.e. Production Manager. (Doc. # 50-17.)
Stock Building responds that neither Dubay nor Moretti are similarly situated to Schley. Dubay and Moretti worked in different departments, reporting to different supervisors than Schley. Moreover, Dubay was an hourly employee, whereas Schley was salaried. Defense also posits that Plaintiffs have not produced any evidence that shows that Schley’s job duties were similar to either those of Dubay or Moretti, or that they shared the same disciplinary history. (Doc. # 54-1, p. 4.)
In order to show a prima facie case of disparate treatment, Schley has the burden of showing that similarly situated employees were treated differently, in this case, that they received a pay raise with their promotion. “In order to meet the comparability requirement a plaintiff is required to show that he is similarly situated in all relevant aspects to the non-minority employee.” Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001), cert. denied, 534 U.S. 976 (2001). In other words, Plaintiff must be “matched with a person or persons who have very similar job-related
4

U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2007)
characteristics and who are in a similar situation” to plaintiff. MacPherson v. Univ. of Montevallo, 922 F.2d 766, 775 (11th Cir.1991); see also Ren v. Univ. of Cent. Florida Bd. Of Trustees, 390 F.Supp.2d. 1223, 1229-30 (M.D.Fla.2005), aff’ d, 179 Fed. Appx. 680 (2006).
*6 Viewing the facts in the light most favorable to the Plaintiff, the Court finds that Schley has properly identified one similarly situated individual. The Court agrees with Stock Building, that Dubay is not similarly situated to Schley for the above mentioned reasons. However the Court finds Moretti to be similarly situated to Schley. Moretti and Plaintiff share several attributes, including both being salaried employees in the Fort Myers branch and having been promoted to the same position of Production Manager during the same general time period. The pay raises associated with their promotions would have been processed by the same individuals. (Doc. # 49-1, pp. 24-5.) The 11th Circuit has stated that “exact correlation is neither likely nor necessary, but the cases must be fair congeners.” Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir.1999)(citing Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989)). The Court finds that Schley has properly identified a similarly situated individual outside his protected class whose promotion associated pay was processed immediately.
iii. Qualification for the Position Defendant contends that the plaintiff was not qualified to be the Production Manager. They contend that Schley lacked the experience and knowledge to lead the Rebar Department. Stock Building cites the difference in experience between Dunn and Schley to explain that they would not have promoted Schley to replace Dunn. (Doc. # 49, p. 19.) Stock Building also relies on Schley’s disciplinary history to show that based on the disciplinary history he would not have been promoted.
The Court finds that a reasonable jury could find that the plaintiff was qualified for the job. Schley had been in the Rebar industry since 1997. (Doc. # 50-3, p. 8.) Throughout his employment history he had held several management type positions supervising individuals. (Docs. # 50-2, pp. 58-60, 62-64; # 50-3, pp. 7-9.) It is also undisputed that Schley was promoted twice by Stuart Building, including once to Shop Supervisor in the Rebar division, despite his disciplinary history. (Docs. # 49-9; # 49-10; # 50-3, p. 31.) Hence, whether Schley was qualified to become Production Manager of the Rebar Department presents a jury question.
C. Legitimate Non-Discriminatory Reasons Having satisfied all the elements for a prima facie case of discrimination, the burden shifts to defendant to proffer legitimate, nondiscriminatory reasons for its decision to not pay plaintiff the raise associated with the promotion. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 253 (holding that the presumption that intentional discrimination occurred raised by plaintiff’s prima facie case may be rebutted by the employer’s articulation of a legitimate, nondiscriminatory reason for its adverse employment action). If this is done, plaintiff retains the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.2001); Johnson v. Booker T. Washington Broad. Servs., 234 F.3d at 507 n. 6. Once defendant offers legitimate, nondiscriminatory reasons for the employment action, plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by defendant were not its true reasons, but were a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., 533 U.S. at 143; Damon v. Fleming Supermarkets of Fla., 196 F.3d at 1361; Bogle v. Orange County Bd. of County Comm’rs, 162 F.3d 653, 658 (11th Cir.1998).
*7 Defendant proffers several legitimate nondiscriminatory reasons for plaintiff’s discharge. First, Schley was not in fact promoted and therefore he was not owed a raise. Second, the business climate changed around August 2001, prompting Stock Building to restructure the Rebar Department, combining the position of Production Manager and Division Manager. (Docs. # 50-8, p. 30; # 50-9, p. 1.) Third, Schley was not qualified for the Production Manager position, even if such position had not been cancelled. Finally Stock Building argues that Dunn was capable of handling both positions.
The Court has already determined that whether Schley was promoted and whether he was qualified create issues of material fact and therefore are jury questions. As for the business environment changing, the Court finds that this constitutes a legitimate, nondiscriminatory reason for not promoting plaintiff. Therefore, the burden shifts back to plaintiff to discredit defendant’s proffered explanation for its decision and to show that the actual basis for its employment decision was racial animus.
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U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2007)
D. Pretext Plaintiff now bears the burden of offering enough probative evidence so that a reasonable jury might conclude that defendant’s reasons for termination were a pretext for the discrimination or retaliation. See Bogle v. Orange County Bd. of County Comm’rs, 162 F.3d at 658; Reeves v. Sanderson Plumbing Prods., 533 U.S. at 143; Pennington v. City of Huntsville, 261 F.3d at 1266. In the summary judgment context, a court must conduct this inquiry by determining whether a jury “could reasonably infer discrimination if the facts presented (by the plaintiff) remained unrebutted.” Jameson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir.1996). The court “must avoid weighing conflicting evidence or making credibility determinations. Rather, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir.1993). After reviewing the entire record, the Court finds that plaintiff has made this requisite showing, and the evidence presented creates a jury issue.4

E. Punitive Damages In order to support a claim for punitive damages in a Title VII case, plaintiffs must show that the employer acted with “malice or with reckless indifference to the [plaintiff’s] federally protected rights.” 42 U.S.C. § 1981a(b)(1). The focus of the analysis is on the employer’s state of mind. Kolstad v. American Dental Ass’n, 527 U.S. 526, 535 (1999); Alexander v. Fulton County, 207 F.3d 1303, 1337 (11th Cir.2000). In addition to showing that defendant acted with malice or reckless indifference, plaintiff must also show that either the discriminating employee was “higher up the corporate hierarchy,”, or that higher management approved of the conduct. Splunge v. Shoney’s, 97 F.3d 488, 491 (11th Cir.1996).
*8 In the present case, a reasonable jury could find that the Defendant’s failure to process Plaintiff’s promotion pay raise and ignoring Schley’s repeated complaints to the Fort Myers management team constitutes malicious or recklessly indifferent behavior. (Doc. # 1, ¶ 7(c)). The Court also finds that upper management was put on notice of the alleged discriminatory acts as Schley notified everyone in his chain of command including Baroni, the manager for the Fort Myers office, as well as his replacement Brissette.
Accordingly, it is now
ORDERED:
Defendant’s Motion for Summary Judgment (Doc. # 49) is DENIED.
DONE AND ORDERED.

Parallel Citations

99 Fair Empl.Prac.Cas. (BNA) 1533

Footnotes

1

The Court notes that the affidavit was listed as Exhibit Number 43 for Document 50, when in fact it was an exhibit to Document

51.

2

The Court notes that the affidavit goes on to indicate that Schley offered Hernandez $10,000 to testify on his behalf. For purposes

of this motion, the court will not address the issue of witness tampering at this time.

3

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established a framework for the allocation of the

burden of production and an order for the presentation of proof in cases dealing with discriminatory treatment in employment. See

Howard v. BP Oil Co., 32 F.3d 520 (11th Cir.1994).

4

Hairston v. Gainesville Sun Publ’g. Co., 9 F.3d 913, 920-21 (11th Cir.1993)(finding that when determining whether plaintiff

satisfied his/her burden under the pretext portion of the analysis, the Court may consider evidence already introduced to establish

the prima facie case).

6

U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2007) 7

 
 U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2006)
2006 WL 462596 Only the Westlaw citation is currently available.
United States District Court, M.D. Florida.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
STOCK BUILDING SUPPLY, INC., formerly known as Carolina Holdings, Inc., doing business as Stuart Lumber Co., Defendant.
No. 205CV306FTM29DNF. | Feb. 27, 2006.
Attorneys and Law Firms Jennifer N. Brown, Equal Employment Opportunity Commission Miami District Office, Miami, FL, for Plaintiff. A. Todd Brown, Jacqueline M. Yount, Hunton & Williams LLP, Charlotte, NC, Juan C. Enjamio, Hunton & Williams, Miami, FL, for Defendant. Opinion
OPINION AND ORDER
STEELE, J. *1 This matter comes before the Court on Defendant Stock Building Supply, Inc.’s Motion to Dismiss Plaintiff’s Complaint (Doc. # 14) filed on November 10, 2005. Plaintiff United States Equal Employment Opportunity Commissioner (plaintiff or the EEOC) filed its Response on December 8, 2005.
I. In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir.2001) (en banc ). To satisfy the pleading requirements of Fed.R.Civ.P. 8, a complaint must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The Court must limit its consideration to well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed. La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th Cir.2004). Dismissal is nonetheless warranted if, assuming the truth of the factual allegations of plaintiff’s complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir.2005); Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir.1992). The Court need not accept unsupported conclusions of law or of mixed law and fact in a complaint. Marsh, 268 F.3d at 1036 n. 16.
II.
1

U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2006)
The Complaint (Doc. # 1) sets forth the following facts: Louis Schley (Schley), an African American male, was hired by defendant Stock Building Supply f/k/a Carolina Holdings, Inc., d/b/a Stuart Lumber Co. (defendant or Stock Building) in July, 1999. In August, 2001, Stock Building informed Schley that he was being promoted to Rebar Production Manager, which involved a wage increase. Schley assumed the position, and performed the job duties and responsibilities. By March, 2002, Schley had not received the pay increase commensurate with his promotion, despite repeatedly advising defendant that the wage increase was not reflected in his pay. Schley never received the pay increase in his wages, although non-black employees who were promoted received wage increases associated with their promotions.
On February 26, 2003, the EEOC Commissioner filed a discrimination charge against defendant pursuant to § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (the Charge of Discrimination1). In the Charge of Discrimination, the EEOC asserted that defendant discriminated against Schley by denying him a wage increase commensurate with the managerial position and denying him the same terms and conditions of employment that other similarly-situated non-African American employees enjoyed.
*2 On July 1, 2005, the EEOC filed a complaint in federal court pursuant to § 706, 42 U.S.C. § 2000e-5(1), alleging that defendant violated Title VII through intentional disparate treatment discrimination resulting from defendant’s unlawful employment practices.
III.
Defendant argues that plaintiff’s claim is time-barred because Schley failed to file a timely charge with the EEOC. Defendant asserts that the “alleged discrete discriminatory pay action first occurred in August 2001 and which resulted in Schley’s failure to receive any subsequent pay increases.” (Doc. # 15-1, p. 5). Additionally, defendant argues that any subsequent pay injuries relate back to the first occurrence in August 2001. Because Schley filed his charge with the EEOC in February 2003, defendant contends that Schley’s filing occurred beyond the prescribed 300-day limitations period, which expired on June 27, 2002, at the latest. Consequently, plaintiff is barred from bringing its claim.
Plaintiff responds that “[d]efendant made a ‘discrete’ violation of Title VII every time defendant paid [ ] Schley less than similarly situated non Black employees.” (Doc. # 20-1, p. 3). Plaintiff argues that the discrimination constituted a continuing violation, which extended the limitations period beyond June 27, 2002. Specifically, plaintiff asserts that the trigger date was the date of the most recent pay period prior to February 26, 2003.
Title VII requires, “in a deferral state such as Florida, [that the complaint with the EEOC] must be filed within 300 days of the last discriminatory act.” Equal Employment Opportunity Comm’n v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir.2002) (citing 42 U.S.C. § 2000e-5(e)(1)). Only those practices that occurred within 300 days of the operative EEOC charge can form the basis for Title VII liability. Ledbetter v. Goodyear Tire and Rubber Co., 421 F.3d 1169, 1178 (11th Cir.2005).
In the context of pay claims of the type in this Complaint, three cases are important. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Ledbetter v. Goodyear Tire and Rubber Co., 421 F.3d 1169 (11th Cir.2005); and Calloway v. Partners Nat’l Health Plans, 986 F.2d 446 (11th Cir.1993). The bottom line in this case is that there are insufficient facts currently available to the Court upon which to resolve the issue of timeliness. For instance, plaintiff asserts he repeatedly informed defendant that the pay increase was not reflected in his paycheck, and this may create the kind of affirmative decision by defendant which limits how far back plaintiff can reach under Calloway. Accordingly, defendant has not satisfied the requirements of a motion to dismiss, and the motion will be denied.
Accordingly, it is now
ORDERED:
Defendant Stock Building Supply, Inc.’s Motion to Dismiss Plaintiff’s Complaint (Doc. # 14) is DENIED. Defendant shall file an answer within TEN (10) DAYS of this Order.
*3 DONE AND ORDERED.
2

U.S. E.E.O.C. v. Stock Bldg. Supply, Inc., Not Reported in F.Supp.2d (2006)

Footnotes

1

Ordinarily, exhibits would not be part of the record under review for a dismissal under Federal Rule of Civil Procedure 12(b)(6)

unless they were attached to the Complaint. See Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir.1999). However, a document

central to the complaint that the defense appends to its motion to dismiss is also properly considered, provided that its contents are

not in dispute. See, e.g., Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n. 3 (11th Cir.2005); Brooks v. Blue Cross &

Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997). Because the Charge of Discrimination attached as Exhibit A to each

of the briefs is undisputed and its subject matter is otherwise directly referenced in the Complaint, the Court may properly rule on

the Motion to Dismiss. Harris, 182 F.3d at 802, n. 2.

3

 
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U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:05-cv-00306-JES-DNF

CLOSED

U.S. Equal Employemnt Opportunity Commission v. Stock Building Supply, Inc. Assigned to: Judge John E. Steele Referred to: Magistrate Judge Douglas N. Frazier Cause: 42:2000 Job Discrimination (Race)

Date Filed: 07/01/2005 Date Terminated: 04/25/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
U.S. Equal Employment Opportunity Commission

represented by Jennifer N. Brown Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6012 Fax: 305/536-4494 Email: jennifer.brown@eeoc.gov TERMINATED: 05/05/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Kate Boehringer Equal Employment Opportunity Commission One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/808-1790 Fax: 305/808-1835 Email: maria.boehringer@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Wells U. S. Equal Employment Opportunity Commission 501 E. Polk St. Suite 1000 Tampa, FL 33602 813/202-7902 Fax: 813/228-2045 Email: michael.wells@eeoc.gov TERMINATED: 02/08/2007 LEAD ATTORNEY

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V.
Defendant
Stock Building Supply, Inc. formerly known as Carolina Holdings, Inc. doing business as Stuart Lumber Co.

ATTORNEY TO BE NOTICED
Nora Ellen Curtin EEOC 2 South Biscayne Blvd. Suite 2700 Miami, FL 33131 305/808-1789 Fax: 305/808-1835 Email: nora.curtin@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by A. Todd Brown Hunton & Williams LLP Bank of America Plaza 101 S. Tryon St., Suite 3500 Charlotte, NC 28280 704/378-4700 Email: tbrown@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacqueline M. Yount Hunton & Williams Bank of America Plaza 101 S. Tryon St., Suite 3500 Charlotte, NC 28280 704/378-4700 Email: jyount@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juan C. Enjamio Hunton & Williams Mellon Financial Center, Suite 2500 1111 Brickell Ave. Miami, FL 33131-1802 305/810-2500 Fax: 305/810-2460 Email: jenjamio@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/01/2005

#

Docket Text

1 COMPLAINT against Stock Building Supply, Inc. ; jury demand ,

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07/01/2005 07/07/2005 07/07/2005
07/13/2005 07/13/2005 07/18/2005 10/14/2005 10/20/2005 10/26/2005
10/27/2005 11/07/2005 11/09/2005
11/09/2005

injunctive relief sought, filed by U.S. Equal Employemnt Opportunity Commission.(slu) (Entered: 07/01/2005)
Summons issued as to Stock Building Supply, Inc.. (slu) (Entered: 07/01/2005)
2 INTERESTED PERSONS ORDER Certificate of interested persons and corporate disclosure statement due by 7/18/2005.Signed by Judge John E. Steele on 7/7/2005. (BJH, ) (Entered: 07/07/2005)
3 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 - track 2. Notice of pendency of other actions due by 7/18/2005.Signed by Judge John E. Steele on 7/7/2005. (BJH, ) (Entered: 07/07/2005)
4 NOTICE of pendency of other actions re order of compliance to Local Rule by U.S. Equal Employemnt Opportunity Commission Related case (s): no (Brown, Jennifer) (Entered: 07/13/2005)
5 CERTIFICATE of interested persons and corporate disclosure statement by U.S. Equal Employemnt Opportunity Commission. (Brown, Jennifer) (Entered: 07/13/2005)
6 AMENDED DOCUMENT by U.S. Equal Employemnt Opportunity Commission. Amendment to 4 Notice of pendency of other actions. (Brown, Jennifer) (Entered: 07/18/2005)
7 RETURN of service executed on 9/30/05 by U.S. Equal Employemnt Opportunity Commission as to Stock Building Supply, Inc.. (slu) (Entered: 10/17/2005)
8 MOTION for Extension of Time to File Response/Reply by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit Exhibit A)(Enjamio, Juan) (Entered: 10/20/2005)
9 INTERESTED PERSONS ORDER Certificate of interested persons and corporate disclosure statement due by 11/7/2005 for Stock Building Supply, Inc..Signed by Judge John E. Steele on 10/26/2005. (slu) (Entered: 10/26/2005)
10 ENDORSED ORDER granting 8 Motion for Extension of Time to File Response/Reply. Answer and/or Response due by 11/9/2005. Signed by Judge Douglas N. Frazier on 10/27/2005.(bas) (Entered: 10/27/2005)
11 CERTIFICATE of interested persons and corporate disclosure statement by Stock Building Supply, Inc.. (Enjamio, Juan) (Entered: 11/07/2005)
12 Defendant Stock Building Supplly, Inc.'s Motion to Dismiss Plaintiff's Complaint ANSWER to complaint by Stock Building Supply, Inc.. (Enjamio, Juan) Modified on 11/10/2005 (slu). INCORRECT event used; Counsel notified (Entered: 11/09/2005)
13 Defendant Stock Building Supply, Inc.s Memorandum of Law in Support of Its Motion to Dismiss Plaintiffs Complaint ANSWER to complaint by

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11/10/2005 11/10/2005 11/17/2005
11/18/2005
12/05/2005 12/08/2005
12/08/2005 12/09/2005 12/12/2005 12/19/2005 01/23/2006 01/23/2006

Stock Building Supply, Inc.. (Attachments: # 1 # 2)(Enjamio, Juan) Modified on 11/10/2005 (slu). INCORRECT event used; Counsel notified (Entered: 11/09/2005)
14 MOTION to dismiss Complaint by Stock Building Supply, Inc.. (Enjamio, Juan) (Entered: 11/10/2005)
15 MEMORANDUM in support re 14 Motion to dismiss Complaint filed by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B) (Enjamio, Juan) (Entered: 11/10/2005)
16 Unopposed MOTION for Extension of Time to File Response/Reply as to 15 Memorandum in support, 14 MOTION to dismiss Complaint by U.S. Equal Employemnt Opportunity Commission. (Brown, Jennifer) (Entered: 11/17/2005)
17 ENDORSED ORDER granting 16 Unopposed Motion Requesting an Extension of Time to File Its Response to Defendant's Motion to Dismiss. The EEOC shall have until December 8, 2005, to respond to the Motion to Dismiss. Signed by Judge Douglas N. Frazier on 11/18/2005. (brh) (Entered: 11/18/2005)
18 CASE MANAGEMENT REPORT. (Brown, Jennifer) (Entered: 12/05/2005)
19 CASE MANAGEMENT AND SCHEDULING ORDER: Final Pretrial Conference set for 2/15/2007 09:00 AM in Courtroom A before Judge John E. Steele. Jury Trial set for trial term 3/5/2007 before Judge John E. Steele. (See Order for all deadlines)Signed by Judge Douglas N. Frazier on 12/8/2005. (BJH, ) (Entered: 12/08/2005)
20 RESPONSE in opposition re 14 MOTION to dismiss Complaint filed by U.S. Equal Employemnt Opportunity Commission. (Attachments: # 1 Exhibit A)(Brown, Jennifer) (Entered: 12/08/2005)
21 AMENDED NOTICE of Hearing: Final Pretrial Conference set for 2/19/2007 09:00 AM in Courtroom A before Judge John E. Steele. (BJH, ) (Entered: 12/09/2005)
22 SECOND AMENDED NOTICE of Hearing: Final Pretrial Conference set for 2/20/2007 09:00 AM in Courtroom A before Judge John E. Steele. (Original date fell on a Court Holiday)(BJH, ) (Entered: 12/12/2005)
23 NOTICE by U.S. Equal Employemnt Opportunity Commission Selection of A Mediator (Brown, Jennifer) (Entered: 12/19/2005)
24 MOTION to appear pro hac vice by A. Todd Brown by on behalf of Stock Building Supply, Inc.. (Attachments: # 1 Text of Proposed Order) (slu) (Entered: 01/24/2006)
25 APPEARANCE of non-resident counsel and designation of local counsel by A. Todd Brown, Juan C. Enjamio on behalf of Stock Building Supply, Inc.. Local Counsel: Juan C. Enjamio. Non-Resident Counsel: A. Todd Brown. (Attachments: # 1 Text of Proposed Order)(slu) (Entered:

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01/23/2006 01/27/2006 02/27/2006
03/06/2006 03/28/2006 03/31/2006
04/03/2006
04/05/2006
04/07/2006 04/21/2006 05/03/2006 05/03/2006 05/04/2006

01/24/2006)
26 CERTIFICATE OF SERVICE by Stock Building Supply, Inc. re 25 Appearance of non-resident counsel, 24 MOTION to appear pro hac vice by A. Todd Brown (slu) (Entered: 01/24/2006)
27 ENDORSED ORDER granting 24 motion of Todd Brown for admission pro hac vice. See order for details. Signed by Judge Douglas N. Frazier on 1/27/2006.(bas) (Entered: 01/27/2006)
28 OPINION AND ORDER denying 14 Defendant Stock Building Supply, Inc.'s Motion to Dismiss Plaintiff's Complaint. Defendant shall file an answer within TEN (10) DAYS of this Order. (See Order for details). Signed by Judge John E. Steele on 2/27/2006. (ATZ) (Entered: 02/27/2006)
29 ANSWER to complaint with Jury Demand by Stock Building Supply, Inc..(Enjamio, Juan) (Entered: 03/06/2006)
30 ORDER directing counsel Jacqueline M. Yount to be admitted. See order for details. Signed by Judge Douglas N. Frazier on 3/28/2006. (slu) (Entered: 03/29/2006)
31 MOTION for Extension of Time to File Response/Reply to Plaintiff's First Set of Interrogatories and First Request for Production by Stock Building Supply, Inc.. (Attachments: # 1 Text of Proposed Order) (Enjamio, Juan) (Entered: 03/31/2006)
32 ENDORSED ORDER granting 31 Motion for Extension of Time to Respond to Plaintiff's First Set of Interrogatories and First Request for Production. Stock Building Supply, Inc. shall have until 4/17/2006 to respond. Signed by Judge Douglas N. Frazier on 4/3/2006. (brh) (Entered: 04/03/2006)
33 MOTION to appear pro hac vice by Jacqueline M. Yount by on behalf of Stock Building Supply, Inc.. (Attachments: # 1 Special Admission Attorney Certification # 2 Text of Proposed Order)(slu) (Entered: 04/05/2006)
34 ORDER granting 33 motion to appear pro hac vice for Jacqueline M. Yount, Esquire. See Order for details. Signed by Judge Douglas N. Frazier on 4/7/2006.(bas) (Entered: 04/07/2006)
Remark : No further action will be taken as to 30 as Ms. Yount has complied. (LAG, ) (Entered: 04/21/2006)
35 NOTICE by U.S. Equal Employemnt Opportunity Commission (Wells, Michael) (Entered: 05/03/2006)
36 MOTION to substitute attorney by U.S. Equal Employemnt Opportunity Commission. (Wells, Michael) (Entered: 05/03/2006)
37 ENDORSED ORDER granting 36 Motion for Substitution of Counsel. Attorney Jennifer Brown is permitted to withdraw as counsel for the

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08/07/2006 08/18/2006 08/19/2006 08/28/2006 08/31/2006 08/31/2006 09/01/2006 09/12/2006
09/21/2006 09/27/2006 10/02/2006

United States Equal Employment Opportunity Commission, and Attorney Micahel Well shall be added as counsel for United States Equal Employment Opportunity Commission. The Clerk shall terminate Jennifer Brown from the service list. Signed by Judge Douglas N. Frazier on 5/4/2006. (brh) (Entered: 05/04/2006)
38 NOTICE by U.S. Equal Employemnt Opportunity Commission Notice of Scheduled Mediation (Wells, Michael) (Entered: 08/07/2006)
39 MOTION to compel by U.S. Equal Employemnt Opportunity Commission. (Attachments: # 1)(Wells, Michael) (Entered: 08/18/2006)
40 MOTION to take deposition from Corporate Representative Outside of Discovery Period by U.S. Equal Employemnt Opportunity Commission. (Attachments: # 1)(Wells, Michael) (Entered: 08/19/2006)
41 ORDER directing U.S. Equal Employemnt Opportunity Commission, Stock Building Supply, Inc. to advise the Court as to the status of mediation. Signed by Judge John E. Steele on 8/28/2006. (RKM) (Entered: 08/28/2006)
42 RESPONSE in opposition re 39 MOTION to compel production of documents filed by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Enjamio, Juan) (Entered: 08/31/2006)
43 RESPONSE in opposition re 40 MOTION to take deposition from Corporate Representative Outside of Discovery Period filed by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Enjamio, Juan) (Entered: 08/31/2006)
44 RESPONSE re 41 Order directing parties to advise status of mediation filed by Stock Building Supply, Inc.. (Enjamio, Juan) (Entered: 09/01/2006)
45 ORDER denying 39 Motion to Compel Production of Documents. Within 30 days, counsel for the EEOC shall pay all the reasonable attorney's fees incurred by counsel for Stock in filing its Response; and granting in part and denying in part 40 Motion to Take Deposition under FRCP 30(b)(6) Outside of the Discovery Period. The deposition will be limited to categories 4 and 7 as set forth in the Notice of Deposition. See Order for details. Signed by Judge Douglas N. Frazier on 9/12/2006. (brh) (Entered: 09/12/2006)
46 MEDIATION REPORT Hearing held on 8/9/2006 Hearing outcome: IMPASSE(Singletary, Cary) (Entered: 09/21/2006)
47 Unopposed MOTION for Extension of Time to File Motion for and Memorandum in Support of Summary Judgment by Stock Building Supply, Inc.. (Attachments: # 1 Text of Proposed Order)(Enjamio, Juan) (Entered: 09/27/2006)
48 ENDORSED ORDER granting 47 Unopposed Motion for Extension of Time to File Motion for Summary Judgment. The Defendant shall have until October 3, 2006, in which to file its Motion for Summary Judgment

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10/03/2006 10/20/2006
10/23/2006 10/31/2006 11/01/2006 11/13/2006 11/17/2006 11/21/2006 12/06/2006

and supporting memorandum. Signed by Judge Douglas N. Frazier on 10/2/2006. (brh) (Entered: 10/02/2006)
49 MOTION for summary judgment and memorandum of law in support of by Stock Building Supply, Inc.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21) (Enjamio, Juan) (Entered: 10/03/2006)
50 RESPONSE in opposition re 49 MOTION for summary judgment and memorandum of law in support of filed by U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19 Exhibit # 20 Exhibit # 21 Exhibit # 22 Exhibit # 23 Exhibit # 24 Exhibit # 25 Exhibit # 26 Exhibit # 27 Exhibit # 28 Exhibit # 29 Exhibit # 30 Exhibit # 31 Exhibit # 32 Exhibit # 33 Exhibit # 34 Exhibit # 35 Exhibit # 36 Exhibit # 37 Exhibit # 38 Exhibit # 39 Exhibit # 40 Exhibit # 41 Exhibit # 42 Exhibit)(Wells, Michael) (Entered: 10/20/2006)
51 NOTICE by U.S. Equal Employment Opportunity Commission re 50 Response in opposition to motion,,, Notice of Filing Exhibit and Affidavit (Attachments: # 1 Exhibit # 2 Affidavit)(Wells, Michael) (Entered: 10/23/2006)
52 MOTION for leave to file Reply Brief in Support of Its Motion for Summary Judgment by Stock Building Supply, Inc.. (Enjamio, Juan) (Entered: 10/31/2006)
53 ORDER granting in part 52 Motion for Leave to File a Reply Brief. The Defendant is permitted to file a reply brief within 11 days, and limited to 5 pages in length. Signed by Judge Douglas N. Frazier on 11/1/2006. (brh) (Entered: 11/01/2006)
54 REPLY to response to motion re 49 MOTION for summary judgment and memorandum of law in support of filed by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K)(Enjamio, Juan) (Entered: 11/13/2006)
55 MOTION for leave to file Surreply Brief by U.S. Equal Employment Opportunity Commission. (Wells, Michael) (Entered: 11/17/2006)
56 ENDORSED ORDER granting 55 Plaintiff's Motion for leave to file a Surreply to Defendant's Reply Brief in Suport of its Motion for Summary Judgment. The parties have eleven (11) days from the filing of this order to submit the surreply which is not to exceed five (5) pages in length. Signed by Judge Douglas N. Frazier on 11/21/2006. (bas) (Entered: 11/21/2006)
57 RESPONSE re 54 Reply to response to motion, PLAINTIFF'S SURREPLY filed by U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit # 2 Affidavit)(Wells, Michael) (Entered:

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12/15/2006
12/19/2006
01/17/2007 01/19/2007 01/24/2007 01/24/2007 01/25/2007 01/31/2007 02/06/2007 02/06/2007 02/07/2007

12/06/2006)
58 Joint MOTION to Appear Telephonically AND TO EXTEND FILING DEADLINE REGARDING JOINT FINAL PRETRIAL STATEMENT by U.S. Equal Employment Opportunity Commission. (Wells, Michael) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 12/15/2006)
59 ENDORSED ORDER granting 58 Joint Motion for Leave to Meet Via Telephone Regarding Joint Final Pretrial Statement and to Extend Deadline to File Joint Final Pretrial Statement. The parties are permitted to meet telephonically to prepare their Joint Final Pretrial Statement, and the deadline to file the Joint Final Pretrial Statement is extended to January 16, 2007. Signed by Judge Douglas N. Frazier on 12/19/2006. (brh) (Entered: 12/19/2006)
60 PRETRIAL STATEMENT by U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 # 5 Exhibit # 6 Exhibit)(Wells, Michael) (Entered: 01/17/2007)
61 ORDER cancelling Final Pretrial Conference and trial term and continuing case to Trial term commencing 4/2/2007 before an Unassigned Judge. Signed by Judge John E. Steele on 1/19/2007. (RKM) (Entered: 01/19/2007)
62 Joint MOTION to extend time to File All Other Motions, Including Motions In Limine by Stock Building Supply, Inc.. (Enjamio, Juan) (Entered: 01/24/2007)
63 MOTION to continue Trial by Stock Building Supply, Inc.. (Enjamio, Juan) (Entered: 01/24/2007)
64 ENDORSED ORDER granting 62 Joint Motion for Extension of Time to File All Other Motions, Including Motions in Limine. Signed by Judge Douglas N. Frazier on 1/25/2007. (bas) (Entered: 01/25/2007)
65 ORDER denying 63 Motion to continue, in the alternative, the case is protected from trial from April 2, 2007, through April 16, 2007. Signed by Judge John E. Steele on 1/31/2007. (RKM) (Entered: 01/31/2007)
66 OPINION AND ORDER denying 49 Motion for summary judgment. See Opinion and Order. Signed by Judge John E. Steele on 2/6/2007. (RKM) (Entered: 02/06/2007)
67 Unopposed MOTION to substitute attorney by U.S. Equal Employment Opportunity Commission. (Boehringer, Maria) Motions referred to Magistrate Judge Douglas N. Frazier. (Entered: 02/06/2007)
68 ENDORSED ORDER granting 67 Plaintiff EEOC's Unopposed Motion to substitute attorney. Michael Wells, Esquire is terminated as attorney of record. M. Kate Boehringer, Esquire and Nora E. Curtin are hereby substituted as counsel of record for the EEOC in this case. The Clerk is directed to amend the service list accordingly. Signed by Judge Douglas N. Frazier on 2/7/2007. (bas) (Entered: 02/07/2007)

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02/09/2007 02/15/2007 02/20/2007 02/23/2007 02/23/2007 02/23/2007
02/23/2007 02/23/2007 02/23/2007 02/23/2007

69 TRIAL CALENDAR for April trial term. Jury Trial set for trial term beginning 4/2/2007 at 9:00 AM before Judge Paul A. Magnuson. Signed by Judge John E. Steele on 2/8/2007. (drn) (Entered: 02/09/2007)
70 AMENDED TRIAL CALENDAR for April trial term. Jury Trial set for trial term beginning 4/2/2007 at 9:00 AM before Judge Paul A. Magnuson. Signed by Judge John E. Steele on 2/15/2007. (js) (Entered: 02/15/2007)
71 NOTICE OF HEARING: Video Status Conference set for 2/26/2007 at 10:30 AM EST (9:30 AM CST) before Judge Paul A. Magnuson. Counsel shall appear at the Clerk's Office on the Second Floor of the Fort Myers U.S. Courthouse & Federal Building at the allotted time. This case will be the fourth case heard at that time. (RKM) (Entered: 02/20/2007)
72 MOTION in limine and Incorporated Memorandum of Law to Exclude Evidence of Louis Schley's Conviction by U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Master Docket, United States v. Schley# 2 Exhibit Public Information Inmate Data/Louis Schley)(Boehringer, Maria) (Entered: 02/23/2007)
73 MOTION in limine and Incorporated Memorandum of Law to Exclude Evidence of Louis Schley's Other Litigation and Administrative Complaint by U.S. Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 02/23/2007)
74 MOTION in limine and Incorporated Memorandum of Law to Exclude Evidence of Louis Schley's Medical and Employment Status After June 1, 2003 by U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Stock Building Supply Notice dated 9/2/03 (STOCK 076)# 2 Exhibit Stock Building Supply Notice dated 12/23/03 re: termination (STOCK 110))(Boehringer, Maria) (Entered: 02/23/2007)
75 MOTION in limine and Supporting Memorandum to Exclude Charge of Discrimination and Other Evidence Related to EEOC Administrative Proceedings by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit Schley's deposition transcript pages# 2 Exhibit unpublished opinions) (Enjamio, Juan) (Entered: 02/23/2007)
76 MOTION in limine and Incorporated Memorandum of Law to Exclude Evidence of Louis Schley's Conviction (signed) by U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Master Docket, United States v. Schley# 2 Exhibit Public Inmate Data/Louis Schley)(Boehringer, Maria) (Entered: 02/23/2007)
77 MOTION in limine and Incorporated Memorandum of Law to Exclude Evidence of Louis Schley's Other Litigation and Administrative Complaint (signed) by U.S. Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 02/23/2007)
78 MOTION in limine and Incorporated Memorandum of Law to Exclude Evidence of Louis Schley's Medical and Employment Status After June 1, 2003 (signed) by U.S. Equal Employment Opportunity Commission.

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02/23/2007
02/23/2007
02/23/2007 02/26/2007 02/28/2007 03/06/2007 03/09/2007

(Attachments: # 1 Exhibit Stock Building Supply Notice dated 9/2/03 (STOCK 076)# 2 Exhibit Stock Building Supply Notice dated 12/23/03 (STOCK 110))(Boehringer, Maria) (Entered: 02/23/2007)
79 MOTION in limine and Supporting Memorandum of Law to Exclude Plaintiff's Newly Raised Theory of the Case by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit Stock's 1st Set of ROGs & RFPs# 2 Exhibit EEOC's Supplemental Objections & Responses to Stock's 1st Set of ROGs & RFPs# 3 Exhibit EEOC's Second Supplemental Objections & Responses to Stock's 1st Set of ROGs & RFPs# 4 Exhibit Schley Depo Transcript# 5 Exhibit Unpublished Decisions)(Enjamio, Juan) (Entered: 02/23/2007)
80 MOTION in limine and Supporting Memorandum of Law to Exclude Plaintiff's Damages Evidence by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit Plaintiff's Initial Disclosures# 2 Exhibit 1-1206 Letter# 3 Exhibit 1-20-06 Letter# 4 Exhibit Plaintiff's First Set of Discovery Responses# 5 Exhibit 4-17-06 Letter# 6 Exhibit Plaintiff's Supplemental Discovery Responses# 7 Exhibit 5-26-06 Letter# 8 Exhibit Plaintiff's Second Supp. Discovery Responses# 9 Exhibit 2-22-07 Fax from Plaintiff# 10 Exhibit Stock's First Set of Discovery# 11 Exhibit Schley Deposition Tr.# 12 Exhibit Unpublished Decisions)(Enjamio, Juan) (Entered: 02/23/2007)
81 MOTION to Enforce Judgment to Hold Plaintiff in Contempt for Failure to Comply with Court's Order Dated September 12, 2006 by Stock Building Supply, Inc.. (Attachments: # 1 Exhibit 9-27-06 E-mail# 2 Exhibit 10-13-06 E-Mail# 3 Exhibit 10-17-06 E-mail chain# 4 Exhibit 11-13-06 E-mail# 5 Exhibit 12-7-06 E-mail# 6 Exhibit 1-3-07 Voicemail Transcript)(Enjamio, Juan) (Entered: 02/23/2007)
82 MINUTE ENTRY for proceedings held before Judge Paul A. Magnuson : Video Status Conference held on 2/26/2007. Court Reporter: Martina Reporting Services (laf) (Entered: 02/26/2007)
83 ORDER scheduling SETTLEMENT conferenceSETTLEMENT Conference set for 3/13/2007 at 09:30 AM in Courtroom C before Magistrate Judge Douglas N. Frazier. Signed by Judge Douglas N. Frazier on 2/28/2007. (BJH, ) (Entered: 02/28/2007)
84 NOTICE OF HEARING: Video Final Pretrial Conference set for 3/19/07 at 10:30 A.M. EST (9:30 A.M. CST) before Judge Paul A. Magnuson. Counsel shall appear at the Clerks Office on the Second Floor of the Fort Myers U.S. Courthouse & Federal Building at the allotted time.(LAG, ) (Entered: 03/06/2007)
85 Unopposed MOTION for Extension of Time to File Response/Reply as to 81 MOTION to Enforce Judgment to Hold Plaintiff in Contempt for Failure to Comply with Court's Order Dated September 12, 2006, 80 MOTION in limine and Supporting Memorandum of Law to Exclude Plaintiff's Damages Evidence, 75 MOTION in limine and Supporting Memorandum to Exclude Charge of Discrimination and Other Evidence

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Related to EEOC Administrative Proceedings, 79 MOTION in limine and Supporting Memorandum of Law to Exclude Plaintiff's Newly Raised Theory of the Case by U.S. Equal Employment Opportunity Commission. (Curtin, Nora) (Entered: 03/09/2007)
86 ORDER granting in part 85 Unopposed Motion for Extension of Time to File Responses to Motions in Limine. The parties shall have until 3/15/2007 in which to respond to the motions in limine. Signed by Judge Douglas N. Frazier on 3/9/2007. (brh) (Entered: 03/09/2007)
87 RESPONSE in opposition re 81 MOTION to Enforce Judgment to Hold Plaintiff in Contempt for Failure to Comply with Court's Order Dated September 12, 2006 filed by U.S. Equal Employment Opportunity Commission. (Curtin, Nora) (Entered: 03/09/2007)
88 DECLARATION of Nora E. Curtin re 87 Response in opposition to motion by U.S. Equal Employment Opportunity Commission. (Curtin, Nora) (Entered: 03/09/2007)
89 MINUTE ENTRY for proceedings held before Judge Douglas N. Frazier : Settlement Conference held on 3/13/2007. The Court will give the parties until March 20, 2007 to notify if they have settled. The response time for the motion in limine is stayed until March 20, 2007 also. (BJH, ) (Entered: 03/14/2007)
90 Joint MOTION Approval of Consent Decree by U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Consent Decree for execution)(Curtin, Nora) (Entered: 03/19/2007)
91 MINUTE ENTRY for proceedings held before Judge Paul A. Magnuson : FINAL PRETRIAL CONFERENCE held on 3/19/2007. Court Reporter: R. Joy Stancel (laf) (Entered: 03/19/2007)
92 CONSENT DECREE signed by Judge Paul A. Magnuson. (Attachments: # 1 Exhibit A# 2 Exhibit B)(js) (Entered: 03/19/2007)
93 JUDGMENT (Signed by Deputy Clerk) (js) (Entered: 04/25/2007)

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