Case 5:05-cv-01058-HE Document 1 Filed 09/12/2005 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

}

(1) HEALTH FOOD ASSOCIATES, INC.,

}

d/b/a Akin’s Natural Foods Market,

}

}

Defendant.

}

}

CIVIL ACTION NO. CIV-05-
DEMAND FOR JURY TRIAL

COMPLAINT

This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of

the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of a disability

and to provide appropriate relief to Cynthia Barnett (“Barnett”), who was adversely affected by such

practices. The Equal Employment Opportunity Commission (“Commission”) alleges that the

Defendant, Health Food Associates, Inc., d/b/a Akin’s Natural Foods Market (“Akins”), violated the

Americans with Disabilities Act by refusing to hire Barnett because she is disabled and by failing

to reasonably accommodate Barnett.

JURISDICTION AND VENUE

1. 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 107(a) of the Americans with

Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference

§§706(f)(1),(3) and 707(a) of of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.

§2000e-5(f)(1),(3) and 2000e-6(a), and pursuant to §102 of the Civil Rights Act of 1991, 42

Case 5:05-cv-01058-HE Document 1 Filed 09/12/2005 Page 2 of 5

U.S.C.§1981A. 2. The employment policies and practices alleged to be unlawful were committed within
the jurisdiction of the United States District Court for the Western District of Oklahoma. Charging Party applied for employment at Defendant’s Oklahoma City store.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by §107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference §§706(f)(1),(3) and 707(a) of Title VII, 42 U.S.C. §2000e-5(f)(1),(3) and 2000e-6(a). 4. At all relevant times, Defendant, Akins, has continuously been and is now doing business in the State of Oklahoma and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under § 101(5) of the ADA, 42 U.S.C.§ 12111(5), and § 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference §§ 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e-(g) and (h). 6. At all relevant times, Defendant has been a covered entity under §101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than 30 days prior to the institution of this lawsuit, Barnett filed a charge of discrimination with the Commission alleging violations of Title I of the ADA by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.

COMPLAINT

2

Case 5:05-cv-01058-HE Document 1 Filed 09/12/2005 Page 3 of 5

8. The Defendant has engaged in unlawful employment practices, in violation of § 102 of Title I of the ADA, 42 U.S.C. § 12112, by refusing to hire Barnett because of Barnett’s impairment, an intellectual disability as a result of Down Syndrome and by failing to reasonably accommodate Barnett.
9. The effect of the practices complained of in paragraph 8, above, has been to deprive Barnett of equal employment opportunities, and has otherwise adversely affected her status as an employee.
10. The unlawful policies and practices complained of in paragraph 8, above, were committed intentionally.
11. The unlawful policies and practices complained of in paragraph 8, above, were committed with malice or with reckless indifference to the federally protected rights of Barnett.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction ensuring compliance with the ADA, and enjoining Defendant, Akins, 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 disability. B. Order the Defendant to institute and carry out policies, practices and programs that provide equal employment opportunities for qualified individuals with disabilities and which eradicate the effects of the Defendant's past and present unlawful practices. C. Order the Defendant to make whole Barnett by providing appropriate back pay with prejudgment interest, in amounts to be proved at trial, and other affirmative relief necessary

COMPLAINT

3

Case 5:05-cv-01058-HE Document 1 Filed 09/12/2005 Page 4 of 5

to eradicate the effects of the Defendant's unlawful employment practices, including but not

limited to rightful place reinstatement or front pay in lieu thereof.

D. Order the Defendant to make whole Barnett by providing compensation for past

and future non-pecuniary losses resulting from the unlawful employment practices described in

paragraph 8 above, including but not limited to emotional pain, suffering, inconvenience,

humiliation, mental anguish, and loss of enjoyment of life, in amounts to be determined at trial.

E. Order the Defendant to pay Barnett punitive damages for its malicious

conduct or reckless indifference described in paragraph 8, 10, and 11 above, in an amount to be

determined at trial.

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

interest.

G. Award the Commission its costs in this action.

JURY TRIAL DEMAND

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

Complaint.

Respectfully submitted,

ERIC S. DREIBAND General Counsel

JAMES L. LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

COMPLAINT

ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782
4

Case 5:05-cv-01058-HE Document 1 Filed 09/12/2005 Page 5 of 5
SUZANNE ANDERSON Supervisory Trial Attorney Texas State Bar No.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston, 3rd Floor Dallas, Texas 75202 (214) 253-2830 (214) 253-2749 FAX
S/Michelle Mitchell Robertson MICHELLE MITCHELL ROBERTSON Senior Trial Attorney Oklahoma State Bar No. 14084 michelle.robertson@eeoc.gov
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 210 Park Avenue, Suite 1350 Oklahoma City, Oklahoma 73102 (405) 231-4363 (405) 231-4340 FAX

COMPLAINT

5

 
 Case 5:05-cv-01058-HE Document 105 Filed 02/12/2007 Page 1 of 3
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - Appellant Cross-Appellee,

v.
HEALTH FOODS ASSOCIATES INC., d/b/a Akin's Natural Foods Market,
Defendant - Appellee Cross-Appellant.

Nos. 06-6354 & 07-6017 (D.C. No. 05-CV-I058-HE)

A~COPY

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ORDER Filed February 8, 2007

In accordance with Rule 33.1, Rules of the Tenth Circuit, and upon consideration of the stipulation to dismiss these appeals,
IT IS ORDERED that the above appeals be and hereby are dismissed pursuant to Rule 42(b), Federal Rules of Appellate Procedure. Each party shall bear its own costs on appeal. A certified copy of this order shall stand as and for the mandate of the court.

Case 5:05U-cnvi-t0e1d0S5t8a-tHeEs CoDuortcoumf Aepntp1ea0l5s forFtihleedT0e2n/1th2/C20ir0c7uit Page 2 of 3
OFFICE OF THE CLERK

Byron White United States Courthouse

1823 Stout Street

Elisabeth A. Shumaker Clerk of Court

Denver, Colorado 80257 (303)844-3157

Douglas E. Cressler Chief Deputy Clerk

February 8, 2007

Ms. Barbara Seely Mr. Robert G. Johnson EEOC-ST LOUIS 1222 Spruce St Room 8.100 St Louis, MO 63103-2818
Ms. Michelle M Robertson EEOC-OKC 215 Dean A McGee Suite 524 Oklahoma City, OK 73102 Mr. Paul D. Ramshaw EEOC 1801 L Street, NW Washington, DC 20507 Mr. John Michael Hickey Mr. Joe Fears Barber & Bartz 525 S. Main St. #800 Tulsa, OK 74103-4511
Mr. Paul D. Kingsolver Johnson Jones 15 W 6th St Suite 2200 Tulsa, OK 74119-5416

Re:

06-6354, Equal Employment v. Health Foods

Dist/Ag docket: CIV-05-1058-HE,

07-6017, Equal Employment v. Health Foods

Dist/Ag docket: 05-CV-01058-HE

Dear Counsel: Enclosed is a copy of the order entered today.

Case 5:05-cv-01058-HE Document 105 Filed 02/12/2007 Page 3 of 3
Please contact this office if you have questions.
Sincerely,
::erk' \rTh\t!i eals Elisabeth A. Ehu~er
Dep\l~ ~'f.k
1 \
clk: j c
cc: Honorable Joe Heaton, District Judge Robert D. Dennis, Clerk

 
 E.E.O.C. v. Health Foods Associates Inc., Not Reported in F.Supp.2d (2006)

2006 WL 2863231 United States District Court,
W.D. Oklahoma.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
HEALTH FOODS ASSOCIATES INC., d/b/a Akin’s Natural Foods Market, Defendant.
No. Civ-05-1058-HE. | Oct. 4, 2006.
Attorneys and Law Firms
Barbara A. Seely, Robert G. Johnson, EEOC, St. Louis, MO, Michelle M. Robertson, EEOC, Oklahoma City, OK, for Plaintiff.
John M. Hickey, Barber & Bartz APC, Paul D. Kingsolver, Johnson Jones, Tulsa, OK, for Defendant.
Opinion
ORDER
JOE HEATON, District Judge.
*1 Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed this action on behalf of Cynthia Barnett against defendant Health Foods Associates Inc., d/b/a Akin’s Natural Foods Market (“Akin’s”), claiming Akin’s discriminated against Ms. Barnett in violation of the Americans with Disabilities Act (“ADA), 42 U.S.C. §§ 12101-12213. Plaintiff asserts Akin’s improperly failed to hire her for the position of stocker due to her disability and failed to reasonably accommodate her. Akin’s has filed a motion for summary judgment, claiming it did not violate the Act because Ms. Barnett was incapable of performing the essential functions of the job, even with the proposed accommodation of a job coach.
Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The evidence and any reasonable inferences that might be drawn from it are viewed in the light most favorable to the nonmoving party. Davidson v. America Online, Inc., 337 F.3d 1179, 1182 (10th Cir2003). Having applied the Rule 56 standard to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law,” Jeffries v. Kansas, 147 F.3d 1220, 1228 (10th

Cir.1998) (internal quotation and citation omitted), the court concludes the defendant’s motion should be granted.1

1

The court has not considered the report of Akin’s

expert witness, Morey Villareal, challenged by the

plaintiff in a separate motion, because it finds the

expert’s opinions to be of minimal, if any, assistance on

the issues to be decided. While Villareal is amply

qualified to express opinions in the field of employee

recruitment and selection, the issues on which he

opines can be analyzed without expert assistance. The

report of the experts retained by the plaintiff, Dr.

Adams and John Linck, defendant’s Exhibit 8, offered

by the defendant, has been reviewed and supports the

court’s conclusions.

Background
The defendant operates retail health food stores in several states, including one located in the Mayfair Shopping Center in Oklahoma City. Akin’s competes with other grocery stores, whose prices generally are lower, by focusing on customer service. Employees are trained that the customer comes first. Cashiers are instructed to call for backup if a customer will have to wait more than thirty seconds to be checked out or if there are more than two people in the line. Employees are cross-trained to run the cash register and are expected to help when needed by sacking and carrying out groceries. The first of the “Stocking Commandments” instructs stockers to stop, no matter what they are doing, and help a customer who needs assistance.2

2

“No matter what thou are doing, thou shalt always stop

to cheerfully help customers if they need help. Thou

shalt provide superior customer service at all times

regardless of other duties.” Akin’s and Chamberlin’s

Stocking Commandments, plaintiff’s Exhibit 3.

In August, 2003, and the following February, 2004, Ms. Barnett, who has a mental disability as a result of Down Syndrome, stopped at the defendant’s Mayfair store with a job coach.3 They inquired about employment for Ms. Barnes as a stocker and she submitted an application. Both times they met briefly with Joseph Garbacz, the store manager. During the initial visit in August, the job coach introduced herself and Ms. Barnett, described Ms. Barnett’s qualifications and explained the role of a job coach. Garbacz spent approximately a minute reviewing Ms. Barnett’s job application and asked her about her former employment. Ms. Barnett did not respond to his
1

E.E.O.C. v. Health Foods Associates Inc., Not Reported in F.Supp.2d (2006)

question and Garbacz would not allow the job coach to assist her in answering. He did not ask Ms. Barnett anything else and the coach and Ms. Barnett left without scheduling a more formal interview.4

3

Several agencies, schools or programs, including

Bridges to Work, provided Ms. Barnett with vocational

services, including job skills assessments and job

training or coaching. Job coaches would take Ms.

Barnett on interviews. With respect to her later

employment by Albertson’s, her coach took her to and

from work.

place the correct number of rolls in each bag, and then put the bag in a machine that sealed it. She did not answer customer’s questions, but was trained to tell them someone would be there right away and then find another employee to help.

6

As the boxes were identical, Ms. Barnett had to read

the labels to select the breads or cookies she was to

prepare. She apparently worked with French bread,

both white and wheat, Italian bread, and four types of

cookies. Plaintiff’s Exhibit 16, Bratcher depo., pp.

29-32.

4

Another job coach, John Blalock, called Garbacz after

the interview. The plaintiff claims Garbacz told him

that there was “no way” that Ms. Barnett would work

out in the store, that she could not even tell him what

her last job was. He allegedly stated that Akin’s

employees shifted from department to department and

that would require retraining Ms. Barnett every time

she moved, which would not work. When Blalock

explained the role job coaches played and that they

could train Ms. Barnett at no cost to Akin’s, the EEOC

contends Garbacz said he was sorry but that would be

a waste of time .

As part of the vocational services she received before she applied at Akin’s, Ms. Barnett worked as a volunteer at the YMCA washing towels and cleaning locker rooms, provided custodial services at a nursing home and sacked groceries at the Mid Del Food Bank. She also had paid employment at a used clothing store hanging and straightening clothes and picking up and reshelving shoes.
Ms. Barnett filed a charge with the EEOC after her second visit to Akin’s. On September 12, 2005, the agency filed this public enforcement action.

*2 Ms. Barnett returned to the store with a different coach in February and applied again for a job. The coach was not aware that Ms. Barnett had been to Akin’s previously. When the coach tried to tell Garbacz about Ms. Barnett’s organizational skills, the plaintiff claims he informed the coach that Ms. Barnett had been in before with another counselor and he had told her he could not use someone like Ms. Barnett. He allegedly said Ms. Barnett would not fit in, that people in the store might make fun of her and that Akin’s would not work out for her because she would not be able to flourish.5 They left and Ms. Barnett subsequently was hired by Albertson’s.

5

Although Akin’s denies that Garbacz made the remarks

the EEOC attributes to him, the court has accepted as

true, for purposes of resolving the defendant’s motion,

the plaintiff’s evidence as to the conversations Garbacz

had with Ms. Barnett and the different job coaches.

At Albertson’s Ms. Barnett worked part-time in the bakery placing frozen cookie and bread dough on pans to be baked later. Her job included reading a list of the types of products, e.g. French bread, and numbers of each type of product she was to prepare that day and then obtaining those products from the freezer.6 She would place the appropriate number of loaves, rolls or cookies on each pan, cover them and put them in a cooler. Occasionally she would package the baked rolls. That required her to identify the type of product and the correct bag and label,

Discussion
The ADA encompasses three distinct types of discrimination: disparate treatment, failing to provide reasonable accommodation and disparate impact. Davidson, 337 F.3d at 1188-89. The EEOC claims Akin’s violated the ADA by failing to hire Ms. Barrett and by failing to reasonably accommodate her. It is questionable whether the plaintiff has alleged two distinct claims. The EEOC essentially argues that Akin’s discriminated against Ms. Barnett by failing to hire her because she would have been capable of performing the essential functions of the stocker’s job if the company had reasonably accommodated her by allowing a job coach to assist her.7 However, “[n]o matter what type of discrimination is alleged, ... a plaintiff must establish first that [s]he was ‘a qualified individual with a disability.’ “ Id. at 1189. Akin’s defense is that Ms. Barnett was not qualified for the position of stocker, with or without reasonable accommodation.8

7

The EEOC does briefly assert that Garbacz failed to

reasonably accommodate Barnett when he would not

allow the job coach to assist in answering his question,

citing 29 C.F.R. § 1630.2(o)(1)(i). Plaintiff’s response,

p. 8. That regulation provides that the term reasonable

accommodation means: “Modifications or adjustments

to a job application process that enable a qualified

applicant with a disability to be considered for the

2

E.E.O.C. v. Health Foods Associates Inc., Not Reported in F.Supp.2d (2006)

position such qualified applicant desires.” The plaintiff still must establish that Ms. Barnett was a “qualified applicant,” which the court has concluded has not been done. The EEOC also argues that Akin’s “never provided Ms. Barnett an accommodation during the interview process to make a valid determination about her skills at that time,” plaintiff’s response, p. 12, and refers to the statement of the defendant’s corporate representation that it was Akin’s position that it could not determine whether Ms. Barnett could perform the essential functions of the job. Assuming this allegation states a failure to accommodate claim, it, too, fails because the plaintiff has not produced evidence that Ms. Barnett could have demonstrated that she was a “qualified individual” under the ADA. See generally Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1124 n. 4 (10th Cir.2004) (employer not required to engage in the interactive process to discover alternative accommodations because plaintiff was not a qualified individual with a disability under the ADA).

8

Analysis under the McDonnell Douglas burden-shifting

framework is unnecessary in this case, as it is

undisputed that Ms. Barnett is disabled and Akin’s has

at least tacitly admitted that Ms. Barnett’s disability

“played a prominent part in the decision.” See

Davidson, 337 F.3d at 1189.

*3 A two-part test is used to determine whether an individual is qualified within the meaning of the ADA:

First, the court determines whether the individual can perform the essential functions of the job. Second, if (but only if) the court concludes that the individual is unable to perform the essential functions of the job, the court determines whether any reasonable accommodation by the employer would enable him to perform those functions.

Id. at 1190 (internal citation omitted). The EEOC bears the burden of showing that Ms. Barnett is able to perform the essential functions of the job. Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1119 (10th Cir.2004). “Essential functions” are “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). Determining whether a function is essential is a factual inquiry. Bartee v. Michelin North America, Inc., 374 F.3d 906, 915 (10th Cir.2004; Davidson, 337 F.3d at 1191.9

9

“Evidence considered in determining whether a

particular function is essential includes: (1) the

employer’s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the work experience of past incumbents in the job.” Mason, 357 F.3d at 1119 (citing 29 C.F.R. § 1630.2(n)(3)).

Akin’s has identified at least four essential job functions of a stocker: operating a cash register, stocking shelves, sacking and carrying out groceries, and assisting customers. The plaintiff admits that Ms. Barnett does not have the cognitive skills to operate a cash register, but disputes that it is one of the job’s essential functions. The court does not, however, have to resolve that issue, as it finds the EEOC has not met its burden of showing the existence of a factual issue as to two other job functions which the plaintiff admits are essential-stocking shelves and assisting customers.10 Plaintiff’s response, p. 2, Fact No. 15 pp. 5-6, Fact No. 10.

10

The defendant also challenges Ms. Barnett’s ability to

sack groceries. This is another close question, as the

plaintiff’s average scores for work habits and work

quality on the situational assessment the EEOC relies

on to show she can perform that task, were below

“adequate,” falling between “occasionally an area

needing improvement” and “adequate.” Plaintiff’s

Exhibit 24. The court also notes that the assessment of

Ms. Barnett’s ability to work as a grocery sacker may

have been based on just a half day or day spent at a

food bank. See defendant’s Exhibit 3, Dienz depo., p.

56.

Stocking shelves at Akin’s involves more than merely placing products on shelves. Stockers have to read UPC or bar codes to sort and stock products by their UPC number. Products with the same label but different properties, such as sodium or wheat free, must be stocked together. Stockers also have to check date codes so newer products are put at the back of the shelves and the store can be advised when a product has expired.
In response to the defendant’s listing of the various tasks performed in conjunction with product placement, the plaintiff denies “Ms. Barnett was incapable of performing many of the duties independently and/or with a reasonable accommodation of the assistance of a job coach.” Plaintiff’s response, p. 2.11 The EEOC fails, though, to produce evidence showing how Ms. Barnett could sort the products, check expiration dates, etc. She did not perform similar functions in any of her other jobs, and the EEOC’s claim that Ms. Barnett’s experience using a UPC scanner in the self check out line at the grocery store demonstrates her ability to read bar codes is not persuasive. Finding and
3

E.E.O.C. v. Health Foods Associates Inc., Not Reported in F.Supp.2d (2006)

swiping a bar code is not the same function as sorting products by reading the UPC code. Reading labels on a limited number of frozen dough boxes also cannot be equated with reading the descriptions or ingredients of many different products and sorting them on that basis.

then testified that “if [Ms. Barnett] were to have to go scan that with a UPC code machine and let that machine tell her that the product is out or they need to reorder, that’s something she never got the opportunity to do so I can’t say that.” Id.

11

The court notes that the EEOC qualified its

response-asserting only that Ms. Barnett could perform

many of the duties of the job with or without reasonable

accommodation.

*4 As the EEOC has not produced evidence demonstrating that Ms. Barnett could stock shelves unassisted, the issue becomes whether she could perform that job function with any reasonable accommodation. The only accommodation suggested by the plaintiff is a job coach who could train Ms. Barnett.12 The EEOC relies on the testimony of Mr. Blalock, an experienced job coach, to show that Ms. Barnett could learn to stock shelves.13

12

Although the coach’s role, other than training Ms.

Barnett, was not discussed, the court assumes the

EEOC was contemplating a coach similar to the one

who assisted Ms. Barnett at Albertson’s.

13

The defendant admitted that a temporary job coach,

who would work with Ms. Barnett to learn the essential

functions of stocker, was a reasonable accommodation.

Plaintiff’s Exhibit 6, Parette depo ., p. 55.

The court does not question that Blalock could have taught Ms. Barnett some of the basic skills required to be a stocker at Akin’s, such as placing the merchandise so that it came to the edge of the shelf or notifying someone when a shelf was empty.14 He did not, however, testify that he could train her to sort products by bar codes or ingredients. He stated he thought a person with Down Syndrome could operate a UPC scanner, but admitted that he had never taught a person with that disability to use one.15 Blalock did testify that he had trained five individuals to be stockers in retail stores. However, he did not specify the duties of those jobs, other than to say that one involved training an individual to stock candy at Target by the cash registers. His testimony is insufficient to demonstrate a triable issue of fact as to Ms. Barnett’s ability to perform all the different tasks involved with stocking shelves at Akin’s even with the accommodation of a job coach.

14

Blalock said he could teach Barnett to notify someone

when a shelf was empty “because that’s a visual

thing.” Plaintiff’s Exhibit 9, Blalock depo. p. 147. He

15

Blalock testified that he was able to train two

individuals with Down Syndrome and IQ’s of around

70 to determine if products were out of date by the

year, but not the month. Plaintiff’s Exhibit 9, Blalock

depo. pp. 18-19. Ms. Barnett’s IQ was 54. Defendant’s

Exhibit 8, Plaintiff’s Expert Report.

The EEOC also failed to show a question exists as to Ms. Barnett’s ability, with or without reasonable accommodation, to assist and interact with customers, another essential function of the position.16 Stockers are expected to fill out special order forms for customers, help them find products, provide basic product information and answer questions such as what is the correct price when a sticker says one price and a sale sign says another.17 The plaintiff states that Ms. Barnett can “interact[ ] with customers in her own way and can direct a customer to a manager.” Plaintiff’s response, p. 6. However, the question is whether she could perform the essential functions of this position, which included responding to customer inquiries of various types and in various contexts. Referring such inquiries to others does not meet that standard. Similarly, reliance on an accommodation that would effectively require another employee to work alongside Ms. Barnett all the time goes beyond what the law requires. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1177 (10th Cir.1999) (Accommodation that would require employer “to change the structure of its business or create a new position for Plaintiff” or “make its other TPOs perform all of the operation’s demanding tasks while Plaintiff performs only certain light tasks” was unreasonable).

16

The EEOC “disputes ‘perfect’ communication is an

essential function” of the job, citing Akin’s hiring of

another employee as a stocker who used a job coach

and who, the EEOC asserts, “could hardly speak

English.” Plaintiff’s response. p. 6. However, the

EEOC mischaracterizes the deposition testimony it

relies on and ignores other statements by the deponent.

Shannon Caldwell did not state that the employee could

hardly speak English. She testified that the employee

“didn’t speak real good English,” and did not have “a

lot of English difficulty, she just had a heavy accent.”

She also denied that the employee’s job coach acted as

a translator. Plaintiff’s Exhibit 5, Caldwell depo. pp.

33-39.

4

E.E.O.C. v. Health Foods Associates Inc., Not Reported in F.Supp.2d (2006)

17

Akin’s did not expect its stockers to be able to answer

more complicated questions, such as an inquiry

regarding a product’s nutritional value. Plaintiff’s

Exhibit 6, Parette depo. pp. 58-59.

The plaintiff also did not offer evidence demonstrating that Ms. Barnett could fill out special order forms. The EEOC asserts that a job coach could assist Barnett with the forms, but Blalock did not testify that he could teach her how to fill out forms. His testimony, rather, was he would not say she could not do that because she had never been given the opportunity while working in the Bridges to Work office. Plaintiff’s Exhibit 9, Blalock depo. p. 114-15.
*5 As there is nothing in the record sufficient to support a finding that the plaintiff could be sufficiently trained to respond to customer’s inquiries by herself18 or to refute the defendant’s evidence that referring all questions was an unreasonable accommodation, the plaintiff has not shown a question exists as to whether Ms. Barnett could fulfill the customer assistance function of the stocker job.19 This, combined with the lack of evidence that Ms. Barnett could stock shelves, defeats the EEOC’s claim under the ADA. See generally Mason, 357 F.3d at 1123 (“[T]he ADA does not even require an employer to modify an essential function of an existing position in order to accommodate a disabled employee.”).

18

Evidence that Blalock taught Ms. Barnett to make eye

contact and answer questions, does not show that she

was capable of answering the questions she would be

asked when working as a stocker at Akin’s.

Viewed in the light most favorable to the plaintiff, the evidence suggests the conduct of the defendant’s manager when he met with the plaintiff left much to be desired. However, the ADA does not proscribe rudeness or allow recovery in circumstances such as these where the job applicant could not perform the essential functions of the position she sought.20 See generally Mason, 357 F.3d at 1119 (“In short, the essential function ‘inquiry is not intended to second guess the employer or to require the employer to lower company standards.’ ”) (quoting Tate v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir.2001)). Accordingly, having concluded the plaintiff has failed to submit evidence sufficient to demonstrate a fact question exists as to whether Ms. Barnett was a “qualified individual with a disability,” the defendant’s motion for summary judgment [Doc. # 39] is GRANTED. The plaintiff’s motions to exclude defendant’s expert witness [Doc. # 32] and for partial summary judgment [Doc. # 38] are DENIED as being moot.

20

Contrary to the plaintiff’s assertion, the defendant’s

manager did not tell Akin’s expert that Ms. Barnett was

not fit to sweep floors. Plaintiff’s response, p. 18. The

plaintiff cites pages 151-52 of Villareal’s deposition

testimony, plaintiff’s Exhibit 12, to support this

mischaracterization of Garbacz’s discussion with

Villareal. What Villareal essentially stated was that

Garbacz told him that every job in the store, including

“even a job that might involve some custodial duties

like sweeping the floor or mopping the floor,” required

the ability to communicate. Villareal depo. pp. 150-52.

19

Although there was evidence that Ms. Barnett was a

sociable individual, her mother testified that her

response to a customer could depend on how the

person approached her. She responded, when asked

“about the interaction process itself of having someone

she doesn’t know com[e] up to her out of the blue and

ask[ ] her a question,” that “[i]t could be a problem.”

Defendant’s Exhibit 3, Dienz depo. p. 49.

IT IS SO ORDERED
Parallel Citations 18 A.D. Cases 1492, 33 NDLR P 157
	  

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U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:05-cv-01058-HE

87BE, _JT

Equal Employment Opportunity Commission v. Health Food Associates Inc Assigned to: Honorable Joe Heaton Case in other court: 06-06354
07-06017 Cause: 42:1983 Civil Rights (Employment Discrimination)

Date Filed: 09/12/2005 Date Terminated: 10/04/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Barbara A Seely EEOC-ST LOUIS 1222 Spruce St Room 8.100 St Louis, MO 63103-2818 314-539-7914 Fax: 314-539-7895 Email: barbara.seely@eeoc.gov ATTORNEY TO BE NOTICED

Michelle M Robertson EEOC-OKC Equal Employment Opportunity Commission 215 Dean A McGee Suite 524 Oklahoma City, OK 73102 405-231-4363 Fax: 405-231-45816 Email: michelle.robertson@eeoc.gov ATTORNEY TO BE NOTICED

Robert G Johnson EEOC-ST LOUIS 1222 Spruce St Room 8.100 St Louis, MO 63103-2818 314-539-7910 Fax: 314-539-7895 Email: robert.johnson@eeoc.gov ATTORNEY TO BE NOTICED

V.

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Defendant
Health Food Associates Inc doing business as Akin's Natural Foods Market

represented by John M Hickey Barber & Bartz APC 525 S Main St Suite 800 Tulsa, OK 74103-4511 918-599-7755 Fax: 918-599-7756 Email: jhickey@barberbartz.com ATTORNEY TO BE NOTICED
Paul D Kingsolver Johnson Jones 15 W 6th St Suite 2200 Tulsa, OK 74119-5416 918-584-6644 Fax: 918-584-6645 Email: kingsolver@jjdcs.com ATTORNEY TO BE NOTICED

Date Filed 09/12/2005
09/12/2005 09/12/2005 09/12/2005 09/26/2005
10/06/2005 10/06/2005 10/13/2005

#

Docket Text

1 COMPLAINT against Health Food Associates Inc, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(fp, ) (Entered: 09/12/2005)
2 ENTRY of Appearance by Michelle M Robertson on behalf of Equal Employment Opportunity Commission (fp, ) (Entered: 09/12/2005)
3 PRAECIPE for 1 Summons by Equal Employment Opportunity Commission., Summons Issued as to Health Food Associates Inc. (fp, ) (Entered: 09/12/2005)
4 GENERAL ORDER 04-02 (April 15, 2004) Mandatory Electronic Case Filing. Signed by Judge Joe Heaton on 4/15/04. (fp, ) (Entered: 09/12/2005)
5 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Health Food Associates Inc served on 9/16/2005, answer due 10/6/2005. (Robertson, Michelle) (Entered: 09/26/2005)
6 ANSWER to Complaint by Health Food Associates Inc.(Hickey, John) (Entered: 10/06/2005)
7 ENTRY of Appearance by John M Hickey on behalf of Health Food Associates Inc (Hickey, John) (Entered: 10/06/2005)
8 ORDER FOR STATUS CONFERENCE Status Conference set for 11/29/2005 10:30 AM in Chambers before Honorable Joe Heaton. Joint Status Report and Discovery Plan due 11/21/05. Signed by Judge Joe Heaton on 10/13/05. (jw, ) (Entered: 10/13/2005)

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10/18/2005
11/21/2005 11/28/2005 11/29/2005
02/16/2006 02/24/2006 05/16/2006 06/14/2006 06/14/2006 06/19/2006 06/19/2006 06/26/2006 06/26/2006 06/26/2006

9 AMENDED ORDER FOR STATUS CONFERENCE Joint Status Report and Discovery Plan due by 11/21/2005. Status Conference set for 11/29/2005 10:30 AM in Chambers before Honorable Joe Heaton.. Signed by Judge Joe Heaton on 10/18/05. (jw, ) (Entered: 10/18/2005)
10 JOINT STATUS REPORT AND DISCOVERY PLAN by Plaintiff Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 11/21/2005)
11 ENTRY of Appearance by Paul D Kingsolver on behalf of Health Food Associates Inc (Kingsolver, Paul) (Entered: 11/28/2005)
12 SCHEDULING ORDER: Motions to join due 30 days from today; Motions to amend due 30 days from today; Pla witness list due 7/1/06, dft 10 days thereafter; Pla exhibit list due 7/1/06, dft 10 days thereafter; Pltf to file final lists of expert witnesses and reports by 6/15/06, dft to file lists of expert witnesses and reports by 7/1/06 Motions in limine due 10/15/06; Jury instructions due 10/15/06; Voir dire requests due 10/16/05; Discovery due by 8/1/2006. Jury Trial set for docket commencing 11/6/2006 09:00 AM in Courtroom #304 before Honorable Joe Heaton. Motions due by 8/15/2006. Pretrial Report due by 10/15/2006. As more fully set out. Signed by Judge Joe Heaton on 11/29/05. (jw, ) (Entered: 11/29/2005)
13 ENTRY of Appearance by Barbara A Seely on behalf of Equal Employment Opportunity Commission (Seely, Barbara) (Entered: 02/16/2006)
14 ENTRY of Appearance by Robert G Johnson on behalf of Equal Employment Opportunity Commission (Johnson, Robert) (Entered: 02/24/2006)
15 NOTICE of Change of Address by Michelle M Robertson (Robertson, Michelle) (Entered: 05/16/2006)
16 JOINT MOTION for Protective Order by Health Food Associates Inc. (Kingsolver, Paul) (Entered: 06/14/2006)
17 UNOPPOSED MOTION for Extension of Time to file Expert Report and Permission to file Report Under Seal by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 06/14/2006)
18 ORDER granting 17 Motion for Extension of Time.EEOC shall file the report on or before June 26, 2006, and will be permited to file it under seal . Signed by Judge Joe Heaton on 6/19/06. (jw, ) (Entered: 06/19/2006)
19 ORDER granting 16 Motion for Protective Order, as more fully set out . Signed by Judge Joe Heaton on 6/19/06. (jw, ) (Entered: 06/19/2006)
20 Witness List for Expert Witness by Plaintiff Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 06/26/2006)
21 NOTICE of Conventional Filing of Expert Report by Michelle M Robertson on behalf of Equal Employment Opportunity Commission (Robertson, Michelle) (Entered: 06/26/2006)
22 Witness List for Expert Witness - Amended by Plaintiff Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 06/26/2006)

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06/26/2006 06/27/2006 06/27/2006
07/03/2006 07/11/2006 07/14/2006 07/14/2006 07/19/2006 08/14/2006 08/15/2006
08/15/2006 08/15/2006 08/16/2006 08/16/2006 08/16/2006

23 SEALED DOCUMENT - Plaintiff's EEOC's Expert Report by Equal Employment Opportunity Commission. (pw, ) (Entered: 06/27/2006)
24 UNOPPOSED MOTION for Extension of Time to file expert witness list and reports by Health Food Associates Inc. (Kingsolver, Paul) (Entered: 06/27/2006)
25 ORDER granting 24 Motion for Extension of Time to File Expert Witness List and Report Deadline. Defendant shall have up to and including July 14, 2006, to file its expert witness list and reports. Signed by Judge Joe Heaton on 6/27/06. (jw, ) (Entered: 06/27/2006)
26 Exhibit List / Witness List by Plaintiff Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 07/03/2006)
27 Exhibit List / Witness List by Defendant Health Food Associates Inc. (Kingsolver, Paul) (Entered: 07/11/2006)
28 Exhibit List / Witness List Expert Witness List by Defendant Health Food Associates Inc. (Kingsolver, Paul) (Entered: 07/14/2006)
29 NOTICE by Health Food Associates Inc of Filing of Defendant Expert Report (Attachments: # 1 Attachment Defendants Expert Report)(Kingsolver, Paul) (Entered: 07/14/2006)
30 DISCLOSURE STATEMENT - CORPORATE by Health Food Associates Inc. (Kingsolver, Paul) (Entered: 07/19/2006)
31 UNOPPOSED MOTION for Extension of Time of Motion Deadline for Three Days by Health Food Associates Inc. (Kingsolver, Paul) (Entered: 08/14/2006)
32 MOTION to Exclude Defendant's Expert Witness by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1- Garbacz Deposition# 2 Exhibit 2 - Blalack Deposition# 3 Exhibit 2a- Affidavit of Carbajal# 4 Exhibit 3 Defendant's Expert's Report# 5 Exhibit 4- Villareal Deposition# 6 Exhibit 5 Notes of Blalack)(Robertson, Michelle) (Entered: 08/15/2006)
33 ORDER granting 31 Motion to Extend Motion Deadline, the parties shall have up to and including August 18, 2006, to file dispositive and Daubert motions with the court . Signed by Judge Joe Heaton on 8/15/06. (jw, ) (Entered: 08/15/2006)
34 UNOPPOSED MOTION for Leave to file Exhibits under Seal by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 08/15/2006)
35 ORDER granting 34 Motion for Leave to File Exhibits Under Seal, as more fully set out. Signed by Judge Joe Heaton on 8/16/06. (jw, ) (Entered: 08/16/2006)
36 NOTICE of Conventional Filing of Exhibit Six to EEOC's Motion to Strike Expert Witness by Michelle M Robertson on behalf of Equal Employment Opportunity Commission (Robertson, Michelle) (Entered: 08/16/2006)
37 SEALED DOCUMENT - Exhibit Six to EEOC's Motion to Strike Defendant's Expert Witness by Plaintiff Equal Employment Opportunity Commission. (pw, ) (Entered: 08/16/2006)

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08/17/2006
08/18/2006
08/18/2006 08/21/2006 08/21/2006 08/31/2006 08/31/2006 09/01/2006 09/01/2006 09/05/2006 09/05/2006 09/05/2006

38 MOTION for Summary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1-Complaint# 2 Exhibit 2- Intake Form# 3 Exhibit 3-Charge of Discrimination# 4 Exhibit 4-Notice of Charge of Discrimination# 5 Exhibit 5-Parette Deposition# 6 Exhibit 6-EEOC Request for Information# 7 Exhibit 7-Response of Akins to EEOC RFI# 8 Exhibit 8-Letter of Determination# 9 Exhibit 9-EEOC Letter to Defendant# 10 Exhibit 10-Notice of Conciliation Failure)(Robertson, Michelle) (Entered: 08/17/2006)
39 MOTION for Summary Judgment by Health Food Associates Inc. (Attachments: # 1 Exhibit 1 - Mark Parette Deposition# 2 Exhibit 2 - Joe Garbacz Deposition# 3 Exhibit 3 - Cherry Dienz Deposition# 4 Exhibit 4 - Amanda McCollum Deposition# 5 Exhibit 5 - Shannon Caldwell Deposition# 6 Exhibit 6 - Jeff Shackelford Deposition# 7 Exhibit 7 - Villareal Expert Witness Report# 8 Exhibit 9 - Andria Talbert Deposition)(Hickey, John) (Entered: 08/18/2006)
40 NOTICE of Conventional Filing (Defendant's Motion for Summary Judgment, and Brief in Support) by John M Hickey on behalf of Health Food Associates Inc (Hickey, John) (Entered: 08/18/2006)
41 UNOPPOSED MOTION to Seal Document 39 MOTION for Summary Judgment Exhibit 8 and portions of Motion for Summary Judgment by Health Food Associates Inc. (Hickey, John) (Entered: 08/21/2006)
42 ORDER granting 41 Motion to Seal Document, a copy of the motion without Exhibit 8 attached and with references to the exhibit redacted shall be filed in the public file . Signed by Judge Joe Heaton on 8/21/06. (jw, ) (Entered: 08/21/2006)
43 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 39 MOTION for Summary Judgment by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 08/31/2006)
44 UNOPPOSED MOTION for Leave to File Oversized Brief by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 08/31/2006)
45 ORDER granting 44 Motion for Leave to File Oversized Brief In Response to Defendant's Motion For Summary Judgment, not to exceed 35 pages . Signed by Judge Joe Heaton on 9/1/06. (jw, ) (Entered: 09/01/2006)
46 ORDER granting 43 Motion for Extension of Time to File Response/Reply re 38 MOTION for Summary Judgment, 39 MOTION for Summary Judgment Responses due by 9/8/2006. Signed by Judge Joe Heaton on 9/1/06. (jw, ) (Entered: 09/01/2006)
47 UNOPPOSED MOTION for Extension of Time to File Response/Reply by Health Food Associates Inc. (Kingsolver, Paul) (Entered: 09/05/2006)
48 ORDER granting 47 Defendants Motion for Extension of Time to File Response/Reply re 38 MOTION for Partial Summary Judgment Responses due by 9/7/2006. Signed by Judge Joe Heaton on 9/5/06. (jw, ) (Entered: 09/05/2006)
49 RESPONSE in Opposition re 32 MOTION to Exclude Defendant's Expert Witness filed by Health Food Associates Inc. (Attachments: # 1 Exhibit 1 Deposition Transcript (Myers v Glenpool Health Svcs)# 2 Exhibit 2 - Villareal Expert Witness Report# 3 Exhibit 3 - Affidavit of Morey J. Villareal)(Hickey,

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09/08/2006 09/08/2006 09/11/2006 09/12/2006 09/12/2006 09/12/2006

John) (Entered: 09/05/2006)
50 RESPONSE in Opposition re 38 MOTION for Summary Judgment of EEOC filed by Health Food Associates Inc. (Attachments: # 1 Exhibit 1 - (OMITTED)# 2 Exhibit 2 - Oct 6, 2004 ltr from Barber & Bartz to EEOC# 3 Exhibit 3 October 7, 2004 E-mail from EEOC# 4 Exhibit 4 - October 21, 2004 ltr from EEOC to Barber & Bartz)(Hickey, John) (Entered: 09/07/2006)
51 MOTION to Seal Document 50 Response in Opposition to Motion, by Health Food Associates Inc. (Hickey, John) (Entered: 09/07/2006)
52 RESPONSE in Opposition re 39 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1-Application for Employment# 2 Exhibit 2- Filed Under Seal# 3 Exhibit 3Stocking Commandments# 4 Exhibit 4-Affidavits# 5 Exhibit 5- Caldwell Deposition# 6 Exhibit 6- Parette Deposition# 7 Exhibit 7-Filed Under Seal# 8 Exhibit 8-Dienz Affidavit# 9 Exhibit 9-Blalock Deposition# 10 Exhibit 10-Garbacz Deposition# 11 Exhibit 11-Dienz Deposition# 12 Exhibit 12-Villareal Deposition# 13 Exhibit 13-Notes of Blalock# 14 Exhibit 14-Nusz Notes# 15 Exhibit 15-Nusz Affidavit# 16 Exhibit 16-Bratcher# 17 Exhibit 17-Akins Stores# 18 Exhibit 18-Merck Manual# 19 Exhibit 19-Plaintiff's Admissions# 20 Exhibit 20-Academic Record# 21 Exhibit 21-Milestone 1 Prog# 22 Exhibit 22-Gold Ages Job Rating# 23 Exhibit 23-Situational Assess# 24 Exhibit 24-Milestone 1 Determination# 25 Exhibit 25-Milestone 1 Progress Rpt# 26 Exhibit 26-Bridges to Work Cert# 27 Exhibit 27-Carbajal Affidavit# 28 Exhibit 28-RFI# 29 Exhibit 29-Under Seal# 30 Exhibit 30-EEOC Q&A)(Robertson, Michelle) (Entered: 09/08/2006)
53 NOTICE of Conventional Filing Exhibits Under Seal by Michelle M Robertson on behalf of Equal Employment Opportunity Commission (Robertson, Michelle) (Entered: 09/08/2006)
54 SEALED DOCUMENT: Exhibits 2, 7, & 29 to Response and Objection to Dft's Motion for Summary Judgment 52 Notice of Conventional Filing 53 by Equal Employment Opportunity Commission. (nm, ) (Entered: 09/08/2006)
55 ORDER for Response re 51 MOTION to Seal Document 50 Response in Opposition to Motion, filed by Health Food Associates Inc, The plaitiff is directed to respond to the motion by Friday, September 15, 2006. Signed by Judge Joe Heaton on 9/11/06. (jw, ) (Entered: 09/11/2006)
56 UNOPPOSED MOTION for Leave to File Reply to Plaintiff's Response and Objection to Defendant's Motion for Summary Judgment by Health Food Associates Inc. (Hickey, John) (Entered: 09/12/2006)
57 RESPONSE to Motion re 51 MOTION to Seal Document 50 Response in Opposition to Motion, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1- KS caselaw# 2 Exhibit 2- Defendant's Answer)(Robertson, Michelle) (Entered: 09/12/2006)
58 UNOPPOSED MOTION for Leave to File Reply to Defendant's Response to EEOC's Motion for Partial Summary Judgment by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 09/12/2006)

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09/18/2006 09/19/2006 09/20/2006 09/21/2006 09/21/2006 09/21/2006

59 DOCKET: Docket Call set for 11/1/2006 10:00 AM in Courtroom #303 before Honorable Joe Heaton. Jury Trial set for 11/6/2006 09:00 AM in Courtroom #304 before Honorable Joe Heaton. (Attachments: # 1 Courtroom General Rules) (jw, ) (Entered: 09/12/2006)
60 ORDER granting 56 Motion for Leave to File Reply. Defendant has until Monday, September 18, 2006, in which to file its reply . Signed by Judge Joe Heaton on 9/13/06. (jw, ) (Entered: 09/13/2006)
61 ORDER granting 58 Motion for Leave to File Reply, EEOC shall file its reply on or before Monday, September 18, 2006 . Signed by Judge Joe Heaton on 9/13/06. (jw, ) (Entered: 09/13/2006)
62 ORDER SETTING SETTLEMENT CONFERENCE Settlement Conference set for 10/18/2006 09:00 AM in Chambers before Magistrate Judge Bana Roberts. Statements are due by noon on 10/13/2006. Signed by Judge Bana Roberts on 9/14/2006. (bc, ) (Entered: 09/14/2006)
63 REPLY to Response to Motion re 38 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 09/18/2006)
64 REPLY to Response to Motion re 39 MOTION for Summary Judgment filed by Health Food Associates Inc. (Attachments: # 1 Exhibit 1 - Omitted (requested to be filed under seal)# 2 Exhibit 2 - Omitted (requested to be filed under seal)# 3 Exhibit 3 - Omitted (requested to be filed under seal)# 4 Exhibit 4 - Omitted (requested to be filed under seal)# 5 Exhibit 5 - Mark Parette Deposition# 6 Exhibit 6 - Shannon Caldwell Deposition# 7 Exhibit 7 - Cherry Dienz Deposition# 8 Exhibit 8 - Sandee Bratcher Deposition# 9 Exhibit 9 - John Blalock Deposition)(Hickey, John) (Entered: 09/18/2006)
65 UNOPPOSED MOTION to Seal Document 64 Reply to Response to Motion,, Exhibits 1 through 4 by Health Food Associates Inc. (Hickey, John) (Entered: 09/18/2006)
66 ORDER granting 65 Motion to Seal Document 65 UNOPPOSED MOTION to Seal Document 64 Reply to Response to Motion,, Exhibits 1 through 4 . Signed by Judge Joe Heaton on 9/19/06. (jw, ) (Entered: 09/19/2006)
67 NOTICE of Conventional Filing (Exhibits 1-4 to Defendant's Reply Brief in Support of Motion for Summary Judgment) by John M Hickey on behalf of Health Food Associates Inc (Hickey, John) (Entered: 09/20/2006)
68 UNOPPOSED MOTION for Leave to file Surreply by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 09/21/2006)
69 SEALED DOCUMENTS - Exhibits 1 through 4 to Defendant's Reply Brief in Support of Motion for Summary Judgment by Defendant Health Food Associates Inc. (pw, ) (Entered: 09/21/2006)
70 ORDER granting 68 Motion for Leave to file a surreply to defendant's reply to EEOC's response to defendant's motion for summary judgment. EEOC shall file its reply on or before Monday, September 25, 2006. Signed by Judge Joe Heaton on 9/21/06. (jw, ) (Entered: 09/21/2006)

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09/25/2006 09/25/2006 09/26/2006 09/26/2006 09/26/2006 10/02/2006 10/02/2006 10/03/2006
10/03/2006
10/03/2006

71 SURREPLY re 64 Reply to Response to Motion,, filed by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 09/25/2006)
72 UNOPPOSED MOTION for Leave to file Exhibit 1 under seal by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 09/25/2006)
73 ORDER granting 72 Motion for Leave to file exhibit under seal. EEOC is permitted to file under seal its exhibit containing confidential information and referenced in its surreply . Signed by Judge Joe Heaton on 9/26/06. (jw, ) (Entered: 09/26/2006)
74 NOTICE of Conventional Filing of Sealed Exhibits Associated with EEOC's Surreply by Michelle M Robertson on behalf of Equal Employment Opportunity Commission (Robertson, Michelle) (Entered: 09/26/2006)
75 SEALED DOCUMENT - Surreply of Plaintiff EEOC to Defendant's Motion for Summary Judgement - Exhibit 1 - by Equal Employment Opportunity Commission. (pw, ) (Entered: 09/26/2006)
76 DESIGNATION OF DEPOSITION TESTIMONY by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 10/02/2006)
77 DESIGNATION OF DEPOSITION TESTIMONY by Health Food Associates Inc of Cynthia Barnett. (Attachments: # 1 Exhibit Barnett Transcript (Part 1)# 2 Exhibit - Barnett Transcript (Part 2)# 3 Exhibit - Barnett Transcript (Part 3)# 4 Exhibit - Barnett Transcript (Part 4))(Hickey, John) (Entered: 10/02/2006)
78 DESIGNATION OF DEPOSITION TESTIMONY by Health Food Associates Inc of Sandee Bratcher. (Attachments: # 1 Exhibit - Bratcher Transcript (Part 1)# 2 Exhibit - Bratcher Transcript (Part 2)# 3 Exhibit - Bratcher Transcript (Part 3)# 4 Exhibit - Bratcher Transcript (Part 4)# 5 Exhibit - Bratcher Transcript (Part 5))(Hickey, John) (Entered: 10/03/2006)
79 DESIGNATION OF DEPOSITION TESTIMONY by Health Food Associates Inc of Cherry Dienz. (Attachments: # 1 Exhibit - Dienz Transcript (Part 1)# 2 Exhibit - Dienz Transcript (Part 2)# 3 Exhibit - Dienz Transcript (Part 3)# 4 Exhibit - Dienz Transcript (Part 4)# 5 Exhibit - Dienz Transcript (Part 5)# 6 Exhibit - Dienz Transcript (Part 6)# 7 Exhibit - Dienz Transcript (Part 7)# 8 Exhibit - Dienz Transcript (Part 8)# 9 Exhibit - Dienz Transcript (Part 9)# 10 Exhibit - Dienz Transcript (Part 10)# 11 Exhibit - Dienz Transcript (Part 11)# 12 Exhibit - Dienz Transcript (Part 12)# 13 Exhibit - Dienz Transcript (Part 13)# 14 Exhibit - Dienz Transcript (Part 14)# 15 Exhibit - Dienz Transcript (Part 15))(Hickey, John) (Entered: 10/03/2006)
80 DESIGNATION OF DEPOSITION TESTIMONY by Health Food Associates Inc of John Blaylock. (Attachments: # 1 Exhibit - Blaylock Transcript (Part 1)# 2 Exhibit - Blaylock Transcript (Part 2)# 3 Exhibit - Blaylock Transcript (Part 3)# 4 Exhibit - Blaylock Transcript (Part 4)# 5 Exhibit - Blaylock Transcript (Part 5)# 6 Exhibit - Blaylock Transcript (Part 6)# 7 Exhibit - Blaylock Transcript (Part 7)# 8 Exhibit - Blaylock Transcript (Part 8)# 9 Exhibit - Blaylock Transcript (Part 9)# 10 Exhibit - Blaylock Transcript (Part 10)# 11 Exhibit Blaylock Transcript (Part 11)# 12 Exhibit - Blaylock Transcript (Part 12)# 13 Exhibit - Blaylock Transcript (Part 13)# 14 Exhibit - Blaylock Transcript (Part

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10/03/2006
10/03/2006 10/03/2006 10/04/2006 10/04/2006 10/18/2006 10/18/2006 10/18/2006 10/18/2006 10/19/2006 11/06/2006

14)# 15 Exhibit - Blaylock Transcript (Part 15)# 16 Exhibit - Blaylock Transcript (Part 16)# 17 Exhibit - Blaylock Transcript (Part 17)# 18 Exhibit - Blaylock Transcript (Part 18)# 19 Exhibit - Blaylock Transcript (Part 19)# 20 Exhibit Blaylock Transcript (Part 20)# 21 Exhibit - Blaylock Transcript (Part 21))(Hickey, John) (Entered: 10/03/2006)
81 DESIGNATION OF DEPOSITION TESTIMONY by Health Food Associates Inc of Andria Talbert. (Attachments: # 1 Exhibit - Talbert Transcript (Part 1)# 2 Exhibit - Talbert Transcript (Part 2)# 3 Exhibit - Talbert Transcript (Part 3)# 4 Exhibit - Talbert Transcript (Part 4)# 5 Exhibit - Talbert Transcript (Part 5)# 6 Exhibit - Talbert Transcript (Part 6)# 7 Exhibit - Talbert Transcript (Part 7)# 8 Exhibit - Talbert Transcript (Part 8)# 9 Exhibit - Talbert Transcript (Part 9)# 10 Exhibit - Talbert Transcript (Part 10)# 11 Exhibit - Talbert Transcript (Part 11)# 12 Exhibit - Talbert Transcript (Part 12)# 13 Exhibit - Talbert Transcript (Part 13)# 14 Exhibit - Talbert Transcript (Part 14)# 15 Exhibit - Talbert Transcript (Part 15)# 16 Exhibit - Talbert Transcript (Part 16))(Hickey, John) (Entered: 10/03/2006)
82 DESIGNATION OF DEPOSITION TESTIMONY by Equal Employment Opportunity Commission of Joe Garbacz-Amended by EEOC. (Robertson, Michelle) (Entered: 10/03/2006)
83 MOTION for Protective Order by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1-Request for Admission# 2 Exhibit 2-Amended Admission# 3 Exhibit 3-Notice of Deposition# 4 Exhibit 4-Callaway case# 5 Exhibit 5-Dayton case)(Robertson, Michelle) (Entered: 10/03/2006)
84 ORDER denying 32 Motion to Exclude, denying 38 Motion for Summary Judgment, granting 39 Motion for Summary Judgment, as more fully set out . Signed by Judge Joe Heaton on 10/4/06. (jw, ) (Entered: 10/04/2006)
85 JUDGMENT in favor of Health Foods Associates against EEOC. Signed by Judge Joe Heaton on 10/4/06. (jw, ) (Entered: 10/04/2006)
86 BILL OF COSTS by Health Food Associates Inc. (Hickey, John) (Entered: 10/18/2006)
87 AFFIDAVIT re 86 Bill of Costs by Health Food Associates Inc. (Attachments: # 1 Attachment - Bill of Costs)(Hickey, John) (Entered: 10/18/2006)
88 BRIEF IN SUPPORT re 86 Bill of Costs by Health Food Associates Inc. (Hickey, John) (Entered: 10/18/2006)
89 MOTION for Attorney Fees and Costs, and Supporting Brief by Health Food Associates Inc. (Attachments: # 1 Exhibit A - Fees# 2 Exhibit A - Costs)(Hickey, John) (Entered: 10/18/2006)
90 NOTICE OF BILL OF COSTS HEARING, Bill of Costs Hearing set for 11/30/2006 10:00 AM in Court Clerk's Office (jw, ) (Entered: 10/19/2006)
91 OBJECTIONS re 89 MOTION for Attorney Fees and Costs, and Supporting Brief filed by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 11/06/2006)

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11/06/2006 11/09/2006
11/16/2006
11/28/2006 11/30/2006 12/01/2006 12/04/2006 12/11/2006 12/14/2006
12/14/2006 01/24/2007 01/26/2007 01/30/2007
02/12/2007

92 OBJECTIONS re 86 Bill of Costs filed by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 11/06/2006)
93 MOTION for Leave to File Reply in support of Defendant's Application for Award of Attorney Fees, and Supporting Brief [Dkt 89] by Health Food Associates Inc. (Hickey, John) (Entered: 11/09/2006)
94 ORDER denying 89 Motion for Attorney Fees, denying 93 Motion for Leave to File Reply, as more fully set out . Signed by Judge Joe Heaton on 11/16/06. (jw, ) (Entered: 11/16/2006)
95 STIPULATION on bill of costs by Health Food Associates Inc. (Kingsolver, Paul) (Entered: 11/28/2006)
98 Costs Taxed in amount of $ 3,886.99 per agreement of parties against plaintiff (pw, ) (Entered: 12/04/2006)
96 NOTICE OF APPEAL as to 85 Judgment by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 12/01/2006)
97 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 96 Notice of Appeal (dl, ) (Entered: 12/04/2006)
99 USCA Case Number 06-6354 for 96 Notice of Appeal filed by Equal Employment Opportunity Commission. (dl, ) (Entered: 12/11/2006)
100 TRANSCRIPT Order Form by Equal Employment Opportunity Commission re 96 Notice of Appeal that transcripts are not necessary. See order form for dates and proceedings. (Robertson, Michelle) (Entered: 12/14/2006)
101 NOTICE OF CROSS APPEAL by Health Food Associates Inc. (Hickey, John) (Entered: 12/14/2006)
102 Transmission of Notice of Cross Appeal and Docket Sheet to US Court of Appeals re 101 Notice of Cross Appeal (dl, ) (Entered: 01/24/2007)
103 USCA Case Number 07-6017 for 101 Notice of Cross Appeal filed by Health Food Associates Inc. (dl, ) (Entered: 01/26/2007)
104 TRANSCRIPT LETTER advising that no transcripts are necessary re 96 Notice of Appeal filed by Equal Employment Opportunity Commission. The record is ready for appeal purposes. (dl, ) (Entered: 01/30/2007)
105 MANDATE From USCA Upon consideration of the stipulation to dismiss these appeals. It is ordered that the appeals be and hereby are DISMISSED 96 Notice of Appeal filed by Equal Employment Opportunity Commission, 101 Notice of Cross Appeal filed by Health Food Associates Inc (dl, ) (Entered: 02/12/2007)

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Docket Report

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5:05-cv-01058-HE Start date: 1/1/1970 End date: 6/6/2007
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 Docket Summary

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United States Court of Appeals for the 10th Circuit Case Summary

Court of Appeals Docket #: 06-6354

Filed: 12/5/06

Nsuit: 1442

Equal Employment v. Health Foods

Appeal from: United States District Court for the W. District of Oklahoma

Lower court information: District: 1087-5 : CIV-05-1058-HE Ordering Judge: Joe Heaton, District Judge

12/19/06 12/27/06 12/27/06 1/5/07
1/9/07 1/24/07 1/30/07 2/6/07 2/8/07

[1986039] Notice of appearance filed by Joe M. Fears as attorney for Health Foods. CERT. OF INTERESTED PARTIES (y/n): n. (cs) [06-6354] [1987418] Amended Notice of appearance filed by Joe M. Fears as attorney for Health Foods. CERT. OF INTERESTED PARTIES (y/n): y. (bjv) [06-6354] [1987419] Notice of appearance filed by John Michael Hickey as attorney for Health Foods. CERT. OF INTERESTED PARTIES (y/n): y. (bjv) [06-6354] [1989422] Notice received from Appellant Equal Employment that a transcript is not necessary for this appeal. Notice due that record is complete 1/10/07 for Robert D. Dennis (lg)
[06-6354] [1990371] Case referred for mediation conferencing. (jc)
[06-6354] [1994548] Notice sent to Clerk of District Court that roa completion notice has not been received. Completion notice now due 2/7/07 for Robert D. Dennis. (lg) [06-6354] [1996364] Filed notice record is complete 1/30/07. First brief on cross-appeal due 3/14/07 for Equal Employment in 06-6354 and 07-6017. (jc) [06-6354 07-6017] Joint Stipulation to dismiss case [06-6354, 07-6017] filed by Equal Employment and Health Foods in 06-6354 and in 07-6017. (bjv) [06-6354 07-6017] [1999287] Rule 33 case terminated. Procedurally Terminated Without Judicial Action; F.R.A.P. 42. [06-6354, 07-6017] (jc)
[06-6354 07-6017]

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6/6/2007 12:34 PM

 
 Docket Summary

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United States Court of Appeals for the 10th Circuit Case Summary

Court of Appeals Docket #: 07-6017

Filed: 1/24/07

Nsuit: 1442

Equal Employment v. Health Foods

Appeal from: United States District Court for the W. District of Oklahoma

Lower court information: District: 1087-5 : 05-CV-01058-HE Ordering Judge: Joe Heaton, District Judge

1/24/07
1/24/07 1/24/07 1/30/07 2/6/07 2/8/07

[1994658] Civil case docketed. Preliminary record filed. DATE RECEIVED: 01/24/07. Fee due 2/5/07 for Health Foods. Transcript order form due 2/5/07 for Jeanne Ring. Docketing statement due 2/5/07 for Health Foods. Notice of appearance due 2/5/07 for Health Foods and for Equal Employment. (bjv)
[07-6017] [1994689] Docketing statement filed by Health Foods in 07-6017. Original and 4 copies c/s: y. (bjv)
[07-6017] [1994691] Notice received from Appellant Health Foods in 07-6017 that a transcript is not necessary for this appeal. Notice due that record is complete 1/29/07 for Robert D. Dennis. (bjv) [07-6017] [1996364] Filed notice record is complete 1/30/07. First brief on cross-appeal due 3/14/07 for Equal Employment in 06-6354 and 07-6017. (jc) [06-6354 07-6017] Joint Stipulation to dismiss case [06-6354, 07-6017] filed by Equal Employment and Health Foods in 06-6354 and in 07-6017. (bjv) [06-6354 07-6017] [1999287] Rule 33 case terminated. Procedurally Terminated Without Judicial Action; F.R.A.P. 42. [06-6354, 07-6017] (jc)
[06-6354 07-6017]

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