Case 6:05-cv-01452-JA-KRS Document 1 Filed 09/29/2005 Page 1 of 7

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UNITED STATES DISTRICT COUR"!ID5 S[P 29 PH \: \2

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

i.J.::', [I:.); ;'dC,r COURT .".iDDQU}:~LD.I~SHTDROI,CF1LOOFRIFDLAORIDA

) . C"v' UNITED STATES EQUAL EMPLOYMENT

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OPPORTUNITY COMMISSION,

)

)

CIVIL ACTION NO.

)

Plaintiff,

)

)

COMPLAINT

v.

)

JURY TRIAL DEMAND

)

FLTVT, LLC FIKIA MAGIC TOYOTA

) INJUNCTIVE RELIEF REOUESTED

DIB/A DAVID MAUS TOYOTA,

)

)

Defendant.

)

-----------------------------)

NATURE OF THE ACTION

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

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

appropriate relief due to Carlton Small, Frederick Rivers, Seymour Small, Sylvester Cole, and

similarly situated individuals who were adversely affected by such practices, As stated with

greater particularity in paragraph 7 below, the United States Equal Employment Opportunity

Commission (hereinafter the "EEOC" or "Commission") alleges that Defendant demoted

Seymour Small, and terminated Carlton Small, Frederick Rivers, Sylvester Cole, and at least one

other similarly situated individual because of their race, Black.

JURISDICTION AND VENUE

1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.c. §§ 451, 1331, 1337,

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1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.c. Section 2000e-5(f)(I) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991,42 U.S.c. § 1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Middle District of Florida, Orlando Division.
PARTIES 3. Plaintiff, the EEOC, is the agency ofthe United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(I) and (3). 4. At all relevant times, FLTVT, LLC f/kla Magic Toyota d/b/a David Maus Toyota ("Defendant"), has continuously been doing business in the State of Florida and the City of Longwood, Florida and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Carlton Small, Frederick Rivers, Seymour Small, and Sylvester Cole filed charges with the Commission alleging violations ofTitle VII by Defendant. This charge was investigated on behalfofCarlton Small, Frederick Rivers, Seymour Small, and Sylvester Cole and other similarly situated
2

Case 6:05-cv-01452-JA-KRS Document 1 Filed 09/29/2005 Page 3 of 7

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

7. Since at least April 2003, Defendant has engaged in unlawful employment

practices at its Longwood, Florida location, in violation ofSection 703(a) ofTitle VII, 42 U.S.C.

§ 2000e-2(a).

a. Sylvester Cole, a black male, was hired by Defendant at its Longwood,

Florida location as a Finance & Insurance Manager on or about February

1,2000.

b. Frederick Rivers, a black male, was hired by Defendant at its Longwood,

Florida location on or about January 18, 2003 as a New Car Sales

Manager.

c. Seymour Small, a black male, was hired by Defendant at its Longwood,

Florida location as a salesperson on or about May 25, 1997, and was

promoted to Assistant Sales Manager on or about March 4,2003.

d. Carlton Small, a black male, was hired by Defendant at its Longwood,

Florida as a salesperson on or about July 20,2001 and was promoted to

Assistant Sales Manager on or about March 14,2003.

e. Carlton Small, Frederick Rivers, Seymour Small, and Sylvester Cole

were management officials considered in good standing who effectively

and efficiently performed their duties and responsibilities.

f.

On or about May 5, 2003, Sylvester Cole, Carlton Small, Frederick

Rivers, and at least one similarly situated individual were terminated

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Case 6:05-cv-01452-JA-KRS Document 1 Filed 09/29/2005 Page 4 of 7
because of their race, Black. g. On or about May 5, 2003, Seymour Small was demoted to salesperson
because of his race, Black. 8. The effect ofthe conduct complained of in paragraph 7 above has been to deprive Carlton Small, Frederick Rivers, Seymour Small, Sylvester Cole and any other similarly situated individuals of equal employment opportunities and otherwise adversely affect their status as employees because of their race. 9. The unlawful employment practices complained of in paragraph 7 above were intentional. 10. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Carlton Small, Frederick Rivers, Seymour Small, Sylvester Cole and any other similarly situated individuals.
PRAYER FOR RELIEF Wherefore, the Commission requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any other employment practice which discriminates on the basis of race. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for blacks, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant to make whole Carlton Small, Frederick Rivers, Seymour Small,
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Case 6:05-cv-01452-JA-KRS Document 1 Filed 09/29/2005 Page 5 of 7
Sylvester Cole and any other similarly situated individuals by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects ofits unlawful employment practices, including but not limited to, reinstatement, rightful-place hiring, and front pay.
D. Order Defendant to make whole Carlton Small, Frederick Rivers, Seymour Small, Sylvester Cole and any other similarly situated individuals by providing compensation for past and future pecuniary losses resulting from the employment practices described in paragraphs seven through ten above, including but not limited to, out-of-pocket losses, medical expenses and job search expenses, in amounts to be determined at trial.
E. Order Defendant to make whole Carlton Small, Frederick Rivers, Seymour Small, Sylvester Cole and any other similarly situated individuals by providing compensation for past and future nonpecuniary losses resulting from the employment practices described in paragraphs seven through ten above, including but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment oflife, and humiliation, in amounts to be determined at trial.
F. Order Defendant to pay Carlton Small, Frederick Rivers, Seymour Small, Sylvester Cole and any other similarly situated individuals punitive damages for its malicious and reckless conduct described in paragraphs seven through ten above, in an amount to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action.
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Case 6:05-cv-01452-JA-KRS Document 1 Filed 09/29/2005 Page 6 of 7
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully Submitted, JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel DELNER FRANKLIN-THOMAS Regional Attorney
c~~~
Trial Atto ey Florida Bar No. 0171591 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Miami District Office One Biscayne Tower, Suite 2700 Two Biscayne Boulevard Miami, Florida 33131 Tel. (305) 530-6009 Direct Tel. (305) 536-6001 Main Fax (305) 536-4494 E-mail: Cheryl.Cooper@eeoc.gov
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Case 6:05-cv-01452-JA-KRS Document 1 Filed 09/29/2005 Page 7 of 7

~S 44 (Rev. 11104)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the infonnation contained. herein neither replace nor supplement the filing and service ofpleadings or other papers as required ~y law, except as pmyi~ed by local rules of court. This form, appmved by the JudicIal Conference of the United States m September 1974, IS reqUired for the use of the Clerk of Court for the purpose of Inltlatmg
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS U.S. Equal Employment Opportunity Commission

DEFENDANTS
FLTVT, LLC f/kla Magic Toyota d/b/a David Maus Toyota

(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant

Seminole

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

(c) Attorney's (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

U.S. EEOC, One Biscayne Tower, Suite 2700, Two South Biscayne Boulevard, Miami, FL 33131 TEL: (305)530-6009

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

~ I U.S. Govemment PlaintitT

o 3 Federal Question
(U.S. Govemment Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for PlaintitT

(For Diversity Cases Only)

and One Box for Defendant)

Citizen of This State

PTF DEF
0 I 0 I Incorporated or Principal Place

PTF DEF 0 4 04

of Business In This State

o 2 U.S. Govemment
Defendant

o 4 Diversity
(Indicate Citizenship of Parties inltem Ill)

Citizen of Another State

o 2 0 2 Incorporated and Principal Place
of Business In Another State
o 3 0 3 Foreign Nation

o5 05 o 6 06

IV NATURE OF SUIT (Place an "X" in One Box Onlv)

ONTRACT

TORTS

o 110 Insurance o 120 Marine o 130 Miller Act o 140 Negotiable Instrument o 150 Recovery of Overpayment

PERSONAL INJURY 0 310 Airplane 0 315 Airplane Product
Liability 0 320 Assault, Libel &

PERSONAL INJURY 0 362 Personal Injury -
Med. Malpractice 0 365 Personal Injnry -
Product Liability

& Enforcement ofJudgment

Slander

o 151 Medicare Act

0 330 Federal Employers'

o 152 Recovery of Defaulted

Liability

0 368 Asbestos Personal Injury Product Liability

Student Loans

0 340 Marine

PERSONAL PROPERTY

o (Exc!. Veterans)

0 345 Marine Product

153 Recovery of Overpayment

Liability

0 370 Other Fraud 0 371 Truth in Lending

o of Veteran's Benefits 160 Stockholders' Suits
o 190 Otller Contract

0 350 Motor Vehicle 0 355 Motor Vehicle
Product Liability

o 195 Contract Product Liability 0 360 Other Personal

o 196 Franchise

Iniury

0 380 Other Personal Property Damage
0 385 Property Damage Product Liability

oI REAL PROPERTY 210 Land CondellDlation
o 220 Foreclosure o 230 Rent Lease & Ejectment o 240 Torts to Land o 245 Tort Prodnct Liability o 290 All Other Real Property

CIVIL RIGHTS

PRISONER PETITIONS

0 441 Voting

0 510 Motions to Vacate

il!I 442 Employment

Sentence

0 443 Housing!

Habeas Corpus:

Accommodations

0 530 General

0 444 Welfare

0 535 Deatll Penalty

0 445 Amer. wlDisabilities- 0 540 Mandamus & Other

Employment

0 550 Civil Rights

0 446 Amer. wlDisabilities - 0 555 Prison Condition

Other

0 440 Other Civil Rights

FORFEITURE/PENALTY
0 610 Agriculture 0 620 Other Food & Dmg 0 625 Dmg Related Seizure
of Property 21 USC 881 0 630 Liquor Laws 0 640 R.R. & Tmck 0 650 Airline Regs. 0 660 Occupational
SafetylHealth 0 690 Other
ABOK 0 710 Fair Labor Standards
Act 0 720 Labor/Mgmt. Relations 0 730 Labor/Mgmt.Reporting
& Disclosure Act 0 740 Railway Labor Act 0 790 Other Labor Litigation 0 791 Emp!. Ret. Inc.
Security Act

BANKR PTCY
o 422 Appeal 28 USC 158 o 423 Withdrawal
28 USC 157
PR PERTY RIGHTS
o 820 Copyrights
0830 Patent
o 840 Trademark
SOUAL SEC JRJ TY
o 861 HIA (1395ft) o 862 Black Lung (923) o 863 DIWClDIWW (405(g)) o 864 ssm Title XVI o 865 RSI (405(g))
FEDERAL TAX SIDTS
o 870 Taxes (U.S. PlaintitT
or Defendant)
o 871 IRS-Third Party
26 USC 7609

OTHER STATUTES
0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and
Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective Service 0 850 Securities/Commodities!
Exchange 0 875 Customer Challenge
12 USC 3410 0 890 Other Statutory Actions 0 891 Agricultural Acts 0 892 Economic Stabilization Act 0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom oflnfonnation
Act 0 900Appeal of Fee Detenn;nation
Under Equal Access to Justice 0 950 Constitutionality of State Statutes

V. ORIGIN
~ 1 Original
Proceedin

(Place an "X" in One Box Only)

o 2 Removed from

0 3 Remanded from

State Court

A ellate Court

o 4

0

Reinstated or

Reo ened

5 Transferred from
another district s ecif

0 6 Multidistrict Liti ation

o 7

Appeal to District Judge from Magistrate Jud ment

Brief descriytion of cause:
Unlawtu employment practices on the baSIS ot race.

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMANDS

VIII. RELATED CASE(S)
IF ANY

(See instructions):

JUDGE

CHECK YES only if demanded in complaint:

JURY DEMAND:

i2I Yes 0 No

DOCKET NUMBER

RECEIPT # -------- AMOUNT ------------- - - - - - - APPLYING lFP JUDGE --------- MAG. JUDGE ---------------

 
 Case 6:05-cv-01452-JA-KRS Document 17 Filed 01/09/2006 Page 1 of 12
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CASE NO.: 6:05-cv-1452-ORL-28KRS
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, FREDERICK RIVERS, CARLTON C. SMALL, SEYMOUR S. SMALL, SYLVESTER A. COLE, JR., and RICKEY WILLIAMS,
Plaintiffs/Intervenors, v. FLTVT, LLC f/k/a MAGIC TOYOTA d/b/a DAVID MAUS TOYOTA,
Defendant. /
PLAINTIFFS/INTERVENORS’, FREDERICK RIVERS, CARLTON C. SMALL, SEYMOUR S. SMALL, SYLVESTER A. COLE, JR., AND RICKEY WILLIAMS,
VERIFIED COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiffs/Intervenors, FREDERICK RIVERS, CARLTON C. SMALL, SEYMOUR S. SMALL, SYLVESTER A. COLE, JR., and RICKEY WILLIAMS (hereinafter referred to as “RIVERS,” “C. SMALL,” “S. SMALL,” “COLE” and “WILLIAMS”), by and through their undersigned attorneys, hereby sue Defendant, FLTVT, LLC f/k/a MAGIC TOYOTA d/b/a DAVID MAUS TOYOTA, a Florida limited liability company (hereinafter referred to as “MAGIC”) for racial (black) discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et. seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. 1981 (collectively, “Title VII”), the Florida Civil Rights Act of 1992, Florida Statutes Section 760.01, et. seq. (the “FCRA”) and for defamation by COLE and in support thereof allege the following:

Case 6:05-cv-01452-JA-KRS Document 17 Filed 01/09/2006 Page 2 of 12
INTRODUCTION 1. This action is brought to remedy unlawful employment practices wherein RIVERS, C. SMALL, S. SMALL, COLE and WILLIAMS were terminated and/or demoted because of their status as African Americans in a plan devised, executed and implemented by MAGIC. COLE alleges defamation against MAGIC. The legal basis for this action is Title VII and FCRA.
JURISDICTION, VENUE AND PARTIES 2. This action arises, in part, under Title VII. This Court has original jurisdiction to grant relief pursuant to 28 U.S.C. §§1332(9)1 and 1343(3) and (4). This Court is vested with jurisdiction to order an injunction, front pay, back pay or any other equitable relief as may be proper, and compensatory and punitive damages, attorney's fees and costs pursuant to 42 U.S.C. §2000e-5(g). This action also arises, in part, under FCRA. Section 760.01 et. seq. COLE’s defamation claim stems from the unlawful discrimination leveled against him by MAGIC and subsequent conduct. Plaintiffs/Intervenors are entitled to supplemental jurisdiction over the related state law claims pursuant to 28 U.S.C. §1367(a) as the state and federal claims share a common nucleus of operative facts. 3. Plaintiff, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (hereafter referred to as “EEOC”) made a finding of discrimination against MAGIC and filed suit in its own right on behalf of RIVERS, C. SMALL, S. SMALL and COLE and “similarly situated individuals” to wit, WILLIAMS, giving them the right to intervene as Plaintiffs. Accordingly, RIVERS, C. SMALL, S. SMALL, COLE and WILLIAMS bring their claims as intervening plaintiffs.
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4. Venue is proper in the Orlando Division of the Middle District of Florida pursuant to 28 U.S.C. §1391(a) and (c) because the unlawful employment practices were committed within this judicial district.
5. Plaintiffs/Intervenors are individuals who at all times material hereto resided in the following respective Florida counties: RIVERS resided in Orange county; C. SMALL resided in Orange county; S. SMALL resided in Orange county; COLE resided in Orange county; and, WILLIAMS resided in Orange county during their employment with MAGIC.
6. At all times material herein, Plaintiffs/Intervenors were employed by MAGIC in the following respective capacities: RIVERS--new car sales manager; C. SMALL--assistant sales manager; S. SMALL--assistant sales manager; COLE--finance manager; and, WILLIAMS-assistant sales manager. All such Plaintiffs/Intervenors were employed by MAGIC located in Longwood, Seminole County, Florida.
7. At all times relevant concerning this action, Defendant, FLTVT, LLC, has continuously been a Florida limited liability company doing business in the State of Florida and MAGIC was located in the city of Longwood, and has continuously had at least fifteen (15) employees.
8. At all relevant times concerning this action, MAGIC had continuously been an “employer” engaged in an industry affecting commerce within the meaning of Title VII, 42 U.S.C. §§2000e-5(b), (g) and (h), and Florida Statute Section 760.02(7).
9. At all times material hereto, V.T., Inc., a foreign corporation, was the parent company and owner of FLTVT, LLC. MAGIC is now doing business as “David Maus Toyota.” At all times material hereto, FLTVT, LLC, owned both MAGIC and David Maus Toyota.
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COMPLIANCE WITH PROCEDURAL REQUIREMENTS 10. On or about September 19, 2003, C. SMALL filed a charge of discrimination with the EEOC. This charge was amended on November 14, 2003. C. SMALL filed a charge of discrimination with the Florida Commission on Human Relations (hereinafter referred to as “FCHR”) on or about November 20, 2003. This charge was filed within 300 days after the unlawful employment practice occurred. MAGIC’s practice is in violation of Title VII of the Civil Rights Act of 1964 and continued to occur up until May 5, 2003 when C. SMALL left MAGIC’s employment. These occurrences are sufficient to satisfy the jurisdictional prerequisites. (42 U.S.C. Section 2000e-5(d)). 11. RIVERS, S. SMALL and COLE filed charges of discrimination with the EEOC on or about October 30, 2003, and with the FCHR on November 20, 2003. These charges were filed within 300 days after the unlawful employment practice occurred. MAGIC’s practice is in violation of Title VII of the Civil Rights Act of 1964 and continued to occur up until May 5, 2003 when RIVERS, S. SMALL and COLE left MAGIC’s employment. These occurrences are sufficient to satisfy the jurisdictional prerequisites. (42 U.S.C.A. Section 2000e-5(d)). 12. On or about March 23, 2005, the EEOC issued to RIVERS, C. SMALL, S. SMALL and COLE letters of determination with respect to such charge of discrimination which are attached hereto as Composite Exhibit “A.” RIVERS, C. SMALL, S. SMALL and COLE have complied with all administrative requirements prior to bringing suit. 13. On or about May 5, 2004, WILLIAMS filed a charge of discrimination with the FCHR.
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14. On or about April 6, 2005, the FCHR issued to WILLIAMS a determination cause letter with respect to such charge as discrimination and therefore he has complied with all administrative requirements prior to bringing suit.
15. The EEOC, in its action, identify WILLIAMS as a similarly situated individual. Pursuant to 42 U.S.C. 2000e-5(f)(1), the person or persons aggrieved have the right to intervene in a civil action brought by the EEOC. As an aggrieved party, WILLIAMS, therefore has the right to assert his Federal and state claims herein as a Plaintiff/Intervenor.
GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS 16. MAGIC is a Florida limited liability company with a principal address located in Shawnee Mission, Kansas. 17. At all times material hereto, FLTVT, LLC owned, operated and did business as MAGIC located at 2925 North Highway 17-92, Longwood, Seminole County, Florida. 18. At all times material hereto, V.T., Inc. was the parent company and owner of FLTVT, LLC. 19. At all times material hereto, MAGIC was in the business of selling and servicing new and used motor vehicles. 20. At all times material hereto, WILLIAMS was an assistant sales manager. 21. The name, “MAGIC TOYOTA,” is no longer in use for the automobile dealership owned and operated by FLTVT, LLC. at 2925 North Highway 17-92, Longwood, Seminole County, Florida. The current name of this dealership is “David Maus Toyota.” 22. At all times material hereto, MAGIC had at least fifteen (15) employees. 23. David Maus is the current General Manager of David Maus Toyota, f/k/a MAGIC TOYOTA. In May of 2003, Bryan Penniman was the General Manager of MAGIC.
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24. All conditions precedent to filing this action have been performed, have occurred or have been waived.
25. RIVERS, C. SMALL, S. SMALL, COLE and WILLIAMS have engaged the services of legal counsel and are obligated to pay legal counsel their attorney's fees and costs incurred in the prosecution of this action.
26. At all times material hereto, the racial discrimination leveled against Plaintiffs/Intervenors was done by MAGIC or MAGIC’s white management staff acting within the course and scope of their employment with MAGIC and with MAGIC’s and V.T., Inc.’s knowledge, consent, approval and encouragement.
COUNT I (VIOLATION OF TITLE VII - RACE DISCRIMINATION) 27. Plaintiffs/Intervenors reallege paragraphs one (1) through twenty-six (26) above as if fully set forth herein. 28. Plaintiffs/Intervenors bring this action pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Section 2000e-5(g), for damages to compensate them for the economic loss and other damages caused by MAGIC’s unlawful employment practices committed against Plaintiffs/Intervenors because they were African-American. 29. On or about May 5, 2003, RIVERS, C. SMALL, COLE AND WILLIAMS were terminated from their positions at MAGIC for the alleged, but false, reason of reduction in force of MAGIC’s management staff. 30. On or about May 5, 2003 S. SMALL was demoted from his position as assistant sales manager to the position of salesman for the alleged, but false reason of reduction in force of MAGIC’s management staff.
6

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31. Despite MAGIC’s false claim that it had valid economic reasons to reduce the size of its African-American management staff, Plaintiffs/Intervenors positions were filled by lesser-qualified Caucasian employees.
32. MAGIC was not in fact experiencing any economic difficulties as of May 5, 2003 and its assertion that this was the reason for terminating or demoting Plaintiffs/Intervenors was a pretext and attempt to disguise MAGIC’s true intent and motive to eliminate from its management staff all African-Americans.
33. All of the Plaintiffs/Intervenors had satisfactory performance at MAGIC and extensive experience in the automobile sales business. None of the Plaintiffs/Intervenors had breached any of MAGIC’s rules, policies or procedures justifying their termination or demotion.
34. The use of racial epithets and slurs, as well as racially-oriented jokes, was prevalent at MAGIC during the time all of the Plaintiffs/Intervenors worked there and created a hostile work environment for Plaintiffs/Intervenors.
35. The actions of MAGIC and/or its agents, employees, managers, supervisors and/or shareholders were willful, wanton, intentional and performed with malice or with reckless indifference to RIVERS’, C. SMALL’s, S. SMALL’s, COLE’s and WILLIAMS’ federally protected rights entitling them to compensatory and punitive damages pursuant to 42 U.S.C. 2000e-5(g) to punish MAGIC for its actions and deter it and others from taking such actions in the future.
36. As a direct, proximate and foreseeable result of MAGIC’s actions, RIVERS, C. SMALL, S. SMALL, COLE and WILLIAMS have suffered past and future pecuniary losses, back pay, front pay, out-of-pocket losses, medical expenses, emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation.
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DEMAND FOR RELIEF WHEREFORE, Plaintiffs/Intervenors, RIVERS, C. SMALL, S. SMALL, COLE and WILLIAMS, respectfully demand judgment against MAGIC for back pay, front pay in lieu of reinstatement, compensatory damages, prejudgment interest, punitive damages, attorney's fees, costs of this action and any such other relief this Court deems just and proper.
COUNT II (VIOLATION OF FCRA - RACE DISCRIMINATION) 37. Plaintiffs/Intervenors reallege paragraphs one (1) through thirty-six (36) above as if fully set forth herein. 38. On or about May 5, 2003, RIVERS, C. SMALL, COLE and WILLIAMS were terminated from their positions at MAGIC for the alleged, but false, reason of reduction in force of MAGIC’s management staff. 39. On or about May 5, 2003, S. SMALL was demoted from his position as assistant sales manager to the position of salesman for the alleged but false reason of reduction in force of MAGIC’s management staff. 40. Despite MAGIC’s false claim that it had valid economic reasons to reduce the size of its African-American management staff, Plaintiffs/Intervenors positions were filled by lesser-qualified Caucasian employees. 41. MAGIC was not in fact experiencing any economic difficulties as of May 5, 2003 and its assertion that this was the reason for terminating or demoting Plaintiffs/Intervenors was a pretext and attempt to disguise MAGIC’s true intent and motive, to eliminate from its management staff all African-Americans. 42. All of the Plaintiffs/Intervenors had satisfactory performance records at MAGIC and extensive experience in the automobile sales business. None of the Plaintiffs/Intervenors had
8

Case 6:05-cv-01452-JA-KRS Document 17 Filed 01/09/2006 Page 9 of 12
breached any of MAGIC’s rules, policies or procedures justifying their termination or demotion. 43. The use of racial epithets and slurs, as well as racially-oriented jokes, was
prevalent at MAGIC during the time all of the Plaintiffs/Intervenors worked there and created a hostile work environment for Plaintiffs/Intervenors.
44. As a direct and proximate result of MAGIC’s demotion of S. SMALL, he suffered racial discrimination with respect to his compensation and benefits and the terms, conditions and privileges of his employment.
45. The action of MAGIC and/or its agents, employees, managers, supervisors and/or shareholders were willful, wanton, intentional and performed with malice or with reckless indifference to RIVERS’, C. SMALL’s, S. SMALL’s, COLE’s and WILLIAMS’ protected rights under the FCRA, entitling them to compensatory and punitive damages pursuant to Florida Statutes Section 760.11(5) to punish MAGIC for its actions and deter it, and others. from taking such actions in the future.
46. As a direct, proximate and foreseeable result of MAGIC’s actions, RIVERS, C. SMALL, S. SMALL, COLE and WILLIAMS have suffered past and future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of dignity, emotional distress, humiliation and other non-pecuniary and intangible injuries.
DEMAND FOR RELIEF WHEREFORE, Plaintiffs/Intervenors, RIVERS, C. SMALL, S. SMALL, COLE and WILLIAMS, demand judgment against MAGIC for back pay, front pay in lieu of reinstatement, compensatory damages, prejudgment interest, punitive damages, attorney's fees, costs of this action and any such other relief as this Court deems just and proper.
9

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COUNT III (COMMON LAW DEFAMATION AGAINST MAGIC BY COLE) 47. Plaintiffs/Intervenors reallege paragraphs one (1) through forty-six (46) above as if fully set forth herein. 48. After his May 5, 2003 unlawful termination from MAGIC, COLE attempted to find employment at other automobile dealerships, but was unsuccessful. 49. COLE learned that the general manager and/or other employees under the management and control of the general manager at MAGIC had “put the word out” that COLE had been terminated because he had allegedly forged finance documents and was guilty of forgery which allegations are false. 50. This false and malicious defamatory per sé statement, to wit: forging finance documents, was communicated to third parties such as car dealerships in Central Florida by the general manager and/or other agents, employees or servants of MAGIC with the specific intention of black-balling COLE making it difficult for him to find employment and destroying his career and reputation in the Central Florida automotive industry. 51. The actions of MAGIC and/or its agents, employees, managers, supervisors and/or shareholders were willful, wanton, intentional and performed with malice or reckless indifference to COLE’s rights under the common law of Florida not to be accused falsely of committing the crime of forgery entitling COLE to punitive damages. 52. As a direct, proximate and foreseeable result of this defamatory statement falsely accusing COLE of the crime of forgery which he did not commit was communicated to third parties, the reputation of COLE was harmed in the community at large and the automobile sales community in particular such that it deterred other automobile dealerships from hiring COLE.
10

Case 6:05-cv-01452-JA-KRS Document 17 Filed 01/09/2006 Page 11 of 12
DEMAND FOR RELIEF WHEREFORE, Plaintiffs/Intervenors, COLE, demands judgment against MAGIC for mental anguish, outrage, anxiety about his future and ability to support himself, harm to his employability and earning capacity, reputation, embarrassment among his co-workers, loss of past and future income and compensatory and punitive damages allowed by law and any other such relief as this Court deems just and proper. To the extent that COLE is required under applicable law to present a proffer to the Court prior to making a plea for relief under Count III that includes a claim for punitive damages against MAGIC, COLE expressly reserves the right to present same at such time as deemed reasonable and appropriate by the Court.
DEMAND FOR JURY TRIAL ON ALL COUNTS Plaintiffs/Intervenors, FREDERICK RIVERS, CARLTON C. SMALL, SEYMOUR S. SMALL, SYLVESTER A. COLE, JR., and RICKEY WILLIAMS, request a trial by jury on each Count of this Verified Intervenors Complaint on all issues so triable.
CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing was provided by electronic transmission this 9th day of January, 2005 to Lauren Dreilinger, Esquire, U.S. Equal Employment Opportunity Commission, Miami District Office, One Biscayne Tower, Suite 2700, Two Biscayne Boulevard, Miami, Florida 33131; Cheryl A. Cooper, Esquire, U.S. Equal Employment Opportunity Commission, Miami District Office, One Biscayne Tower, Suite 2700, Two Biscayne Boulevard, Miami, Florida 33131; Carlos J. Burruezo, Esquire, Fisher & Phillips, LLP, 300 South Orange Avenue, Suite 1250, Orlando, Florida 32801; James B. Murphy, Jr., Esquire, Shook, Hardy & Bacon, LLP, 100 North Tampa Street, Suite 2900, Tampa, Florida; William C. Martucci, Esquire,
11

Case 6:05-cv-01452-JA-KRS Document 17 Filed 01/09/2006 Page 12 of 12
Shook, Hardy & Bacon, LLP, 2555 Grand Boulevard, Kansas City, Missouri 64108; and, Carrie McAtee, Esquire, Shook, Hardy & Bacon, LLP, 2555 Grand Boulevard, Kansas City, Missouri 64108.
Respectfully submitted,
/s/ Daniel DeCiccio
DANIEL DECICCIO, ESQUIRE Florida Bar No.: 338941 dan.deciccio@deciccio.com WAYNE JOHNSON, ESQUIRE Florida Bar No.: 966177 wayne.johnson@deciccio.com DECICCIO & JOHNSON 652 West Morse Boulevard Winter Park, Florida 32789 Telephone: 407-740-4111 Facsimile: 407-740-4011 Attorneys for Plaintiffs/Intervenors
12

 
 Case 6:05-cv-01452-JA-KRS Document 37 Filed 05/18/2007 Page 1 of 4

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

-vs-

Case No. 6:05-cv-1452-Orl-28KRS

FLTVT, LLC,

Defendant. ______________________________________

ORDER

This cause came on for consideration without oral argument on the following motion filed

herein:

MOTION:

DEFENDANT FLTVT, LLC’S MOTION TO COMPEL PLAINTIFFS FRED RIVERS AND SEYMOUR SMALL TO SUBMIT TO A PSYCHOLOGICAL EVALUATION PURSUANT TO RULE 35 (Doc. No. 32)

FILED: May 4, 2007 _______________________________________________________

Frederick Rivers and Seymour Small were granted leave to file an Intervenors’ Complaint in this case. In that complaint, they allege that they were terminated and/or demoted by Defendant FLTVT, LLC (FLTVT) due to their race. They allege that as a result of FLTVT’s conduct, they “have suffered . . . medical expenses, emotional pain, suffering, . . . [and] loss of enjoyment of life and humiliation.” Doc. No. 17 ¶¶ 36, 46.

Case 6:05-cv-01452-JA-KRS Document 37 Filed 05/18/2007 Page 2 of 4
FLTVT now asks the Court to compel Rivers and Small to submit to a psychiatric examination pursuant to Federal Rule of Civil Procedure 35. Doc. No. 32. Rivers and Small oppose the motion. Doc. No. 33. Rivers agrees to stipulate that he will not introduce any evidence regarding his emotional pain and suffering except his own testimony, and he agrees not to testify that he contemplated suicide as a result of his termination. Doc. No. 33 at 2. Small indicates that he did not seek medical treatment for his emotional pain and suffering, and he testified during his deposition that his symptoms lasted only six or seven weeks. Doc. No. 33 at 3. As such, Rivers and Small argue that this is an instance of “garden variety” emotional damages that does not support a Rule 35 examination.
Federal Rule of Civil Procedure 35(a) provides as follows: [w]hen the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. Therefore, under Rule 35(a), the movant must establish that the other party’s mental condition or physical condition is “in controversy” and that there is “good cause” for the examinations. Ali v. Wang Labs., Inc., 162 F.R.D. 165, 167 (M.D. Fla. 1995). The Rule “requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of ‘in controversy’ and ‘good cause,’ . . . .” Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964). These requirements “are necessarily related.” Id. “[T]he
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Case 6:05-cv-01452-JA-KRS Document 37 Filed 05/18/2007 Page 3 of 4
movant must produce sufficient information, by whatever means, so that the [trial] judge can fulfill his [or her] function mandated by the Rule.” Id. at 19.
“The majority of courts have held that plaintiffs do not place their mental condition in controversy merely by claiming damages for mental anguish or ‘garden variety’ emotional distress.” Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 553 (N.D. Ga. 2001). Courts have, however, authorized Rule 35 examinations when, among other things, “an allegation of a specific mental or psychiatric injury . . . is made,” or “a claim of unusually severe emotional distress is made.” Id. at 554. The record is sufficient to show that Small has not asserted a specific mental or psychiatric injury that would support the need for a Rule 35 examination. A plaintiff does not place his mental condition in controversy merely by alleging that his psychological well-being was undermined by a defendant’s behavior. See Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 531 (M.D. Fla. 1988).
In contrast, as to Rivers, FLTVT correctly argues that the proposed stipulation about his testimony is too nonspecific to permit FLTVT or the Court fairly to gauge whether Rivers has sufficiently limited his claims for emotional distress to make a Rule 35 examination unnecessary, particularly in light of Rivers’ deposition testimony that his current emotional condition is the result of both the alleged discrimination by FLTVT and an earlier, apparently unrelated episode of discrimination. Moreover, the motion is not sufficient for the Court to assess whether the proposed examination is appropriate because it does not detail the “manner, conditions and scope of the examination.” See Rule 35(a).
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Case 6:05-cv-01452-JA-KRS Document 37 Filed 05/18/2007 Page 4 of 4
Accordingly, Defendant FLTVT, LLC’S Motion to Compel Plaintiffs Fred Rivers and Seymour Small to Submit to a Psychological Evaluation Pursuant to Rule 35 (Doc. No. 32) is DENIED as to Small and DENIED without prejudice as to Rivers. Before filing a renewed motion with respect to Rivers, counsel shall confer in a good faith effort to determine the scope of the testimony that Rivers intends to provide at trial. In any renewed motion, FLTVT shall state the length of time of the proposed examination, the scope of the examination, the manner of the examination (clinical interview, testing, etc.), and any other conditions of the examination.
DONE and ORDERED in Orlando, Florida on May 18, 2007.
Karla R. Spaulding
KARLA R. SPAULDING UNITED STATES MAGISTRATE JUDGE Copies furnished to: Counsel of Record Unrepresented Parties
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 Case 6:05-cv-01452-JA-KRS Document 40 Filed 07/10/2007 Page 1 of 3

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

-vs-

Case No. 6:05-cv-1452-Orl-28KRS

FLTVT, LLC,

Defendant. ______________________________________

ORDER

This cause came on for consideration without oral argument on the following motion filed

herein:

MOTION: DEFENDANT FLTVT, LLC’S MOTION TO COMPEL PLAINTIFFS’ EMPLOYMENT RECORDS (Doc. No. 38)
FILED: June 13, 2007 _______________________________________________________
THEREON it is ORDERED that the motion is DENIED.
On February 27, 2006, Defendant FLTVT, LLC (FLTVT) served a request for production of
documents on the individual plaintiffs who intervened in this case. More than one year after the
request was served, and only two days before the close of discovery, FLTVT now seeks to compel the
individual plaintiffs to produce documents responsive to request number 15, which reads as follows:
Any and all documents relating to your employment with any and all employers since January 2001 and for five years prior to employment with FLTVT, including but not limited to any application for employment, personnel file, employee handbook, employment

Case 6:05-cv-01452-JA-KRS Document 40 Filed 07/10/2007 Page 2 of 3
agreement and any other documents which reflect such terms as salary, and other forms of compensation, employee benefits, or any documents describing the position held, the reasons for leaving the job, your performance in each position held, and any dispute you had with any employers. Please execute the attached records authorization form to authorize FLTVT to obtain related documents directly from your employers. Doc. No. 38 at 1-2. The individual plaintiffs responded that, except for tax returns and related documents, they were not in possession, custody or control of the requested documents. Doc. No. 38 at 2.1 In its motion, FLTVT does not present any reason to believe that the individual plaintiffs have possession, custody or control of responsive documents. Instead, it argues that the individual plaintiffs should have executed authorizations to permit it to obtain the documents directly from the individual plaintiffs’ employers. FLTVT does not cite any law supporting the proposition that individual plaintiffs must sign authorizations in order for a defendant to obtain records not in their possession, custody or control. FLTVT had ample opportunity to issue subpoenas to the individual plaintiffs’ employers pursuant to Federal Rule of Civil Procedure 45 if it wished to obtain the records, and there is no showing that the employers would not have produced these records absent signed releases from
1 Curiously, the individual plaintiffs seek a protective order in response to the motion. If the protective order is directed only at the request that the Court compel plaintiffs to sign authorization for release of their records, the motion is moot. If, however, the motion is intended to protect the individual plaintiffs from producing responsive documents that are within their possession, custody and control, the arguments have been waived by their failure to object to request number 15 in their initial responses to the request. Accordingly, if the individual plaintiffs have documents responsive to request number 15, it is ORDERED that they shall produce them for inspection and copying on or before July 16, 2007.
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Case 6:05-cv-01452-JA-KRS Document 40 Filed 07/10/2007 Page 3 of 3 the individual plaintiffs. Accordingly, no basis has been established supporting an order requiring the individual plaintiffs to sign authorizations to release the records FLTVT requested.
DONE and ORDERED in Orlando, Florida on July 10, 2007.
Karla R. Spaulding
KARLA R. SPAULDING UNITED STATES MAGISTRATE JUDGE Copies furnished to: Counsel of Record Unrepresented Parties
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 Case 6:05-cv-01452-JA-KRS Document 53 Filed 08/09/2007 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
. ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

-vs-

Case No. 6:05-cv-1452-0rl-28KRS

FLTVT, LLC,

Defendant.

ORDER
This cause is before the Court on the following motion:

MOTION:

PLAINTIFF/INTERVENOR, SYLVESTER COLE'S UNOPPOSED MOTION FOR DISMISSAL OF DEFAMATION CLAIM (Doc. No. 51)

FILED:

August 1, 2007

THEREON it is ORDERED that the motion is GRANTED. Count III of the Plaintiffs/lntervenors' Verified Complaint (Doc. 17) is dismissed with prejudice.

Case 6:05-cv-01452-JA-KRS Document 53 Filed 08/09/2007 Page 2 of 2

q DONE and ORDERED in Chambers, Orlando, Florida this

L- day of August,

2007.

Copies furnished to: Counsel of Record Unrepresented Party

,L
States District Judge

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 UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

FREDERICK RIVERS, CARLTON C. SMALL, SEYMOUR S. SMALL, SYLVESTER A. COLE, JR., and RICKEY WILLIAMS,

Intervenor-Plaintiffs,

-vs-

Case No. 6:05-cv-1452-Orl-28KRS

FLTVT, LLC,

Defendant. ______________________________________

ORDER

This cause is before the Court on Defendant’s Motion for Summary Judgment (Doc. 48), in opposition to which Plaintiffs have filed a Response (Doc. 52).1 Having considered

the parties’ submissions and applicable law, the Court concludes that the motion must be

granted in part and denied in part.

I. Background The Intervenor-Plaintiffs, all of whom are African-American, were formerly employed by Defendant at an automobile dealership. At the time of the events pertinent to this lawsuit,

1Additionally, with leave of Court (see Docs. 54 & 55), Defendant has filed a Reply (Doc. 56) to Plaintiffs’ Response.

the dealership was known as Magic Toyota (“Magic”).2 It is undisputed that the Intervenor-

Plaintiffs were employed at Magic as follows:

•

Frederick Rivers was hired as a new car sales manager on or about

January 18, 2003;

•

Carlton Small was hired as a salesperson on or about July 20, 2001

and was promoted to Assistant Sales Manager on or about March 14,

2003;

•

Seymour Small was hired as a salesperson on or about May 25, 1997

and was promoted to Assistant Sales Manager on or about March 4,

2003;

•

Sylvester Cole was hired as a Finance and Insurance Manager on

approximately February 1, 2000; and

•

Rickey Williams was hired as Lead Assistant Sales Manager on or

about March 5, 2003.

(Statement of Admitted Facts, Joint Pretrial Statement, Doc. 60 at 12-13). In early May

2003, Rivers, Carlton Small, Cole, and Williams were terminated; they were given

termination notices stating that “[d]ue to current business levels, we decided it was

necessary to reduce our current management force” and that each plaintiff’s “personnel file

should reflect that his termination was due to a reduction in a workforce, effective

immediately.” (Termination Notices, Pls.’ Ex. 27).3 At that same time, Plaintiff Seymour

Small was demoted from the position of Assistant Sales Manager to salesman. (See Dep.

of Brian Penniman, Mar. 9, 2007, Def.’s Ex. 14, at 138). Although Defendant asserts that

its termination and demotion of the Intervenor-Plaintiffs was due to economic reasons,

Plaintiffs maintain that they were terminated and demoted based on their race.

The United States Equal Employment Opportunity Commission (“EEOC”) initiated this

2The dealership has since been renamed David Maus Toyota. 3Plaintiff’s summary judgment exhibits are attached to their Response (Doc. 52).
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action in September 2005 by filing a Complaint (Doc. 1) alleging that Defendant engaged in unlawful discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), when Defendant terminated or demoted Seymour Small, Carlton Small, Frederick Rivers, Sylvester Cole, “and at least one other similarly situated individual.” (See Doc. 1 at 1).4 Seymour Small, Carlton Small, Rivers, Cole, and Rickey Williams successfully moved to intervene (see Docs. 9 & 14) and filed a Complaint (Doc. 17) bringing claims under both Title VII and the Florida Civil Rights Act of 1992, sections 509.092, 760.01-.11, Florida Statutes (“the FCRA”).5 The Intervenor-Plaintiffs bring claims of discriminatory termination and demotion as well as claims of a hostile work environment based on “[t]he use of racial epithets and slurs, as well as racially-oriented jokes” during their employment (Doc. 17 ¶¶ 34 & 43).6
II. Discussion A. Summary Judgment Standards Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there
4The EEOC’s Complaint did not mention Rickey Williams. 5Courts consistently apply case law interpreting Title VII to claims under the FCRA because the FCRA is patterned after Title VII. See, e.g., Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004). Hence, the discussion of the Title VII claims in this Order applies equally to the FCRA claims, and the FCRA claims will not be addressed separately. 6Cole also brought a defamation claim. (See Intervenors’ Compl., Doc. 17 at 10-11). However, that claim has been dismissed by agreement of the parties. (See Docs. 51 & 53).
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is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
When faced with a “properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). “The evidence presented cannot consist of conclusory allegations or legal conclusions.” Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991); see also Fed. R. Civ. P. 56(e) (providing that nonmovant’s response “must set forth specific facts showing that there is a genuine issue for trial”).
In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
“Summary judgment may be granted if the non-moving party’s evidence is merely colorable or is not significantly probative.” Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51). “‘In a response to a motion for
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summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.’ Essentially, the inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.’” Id. (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) and Anderson, 477 U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) (“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.”). “[T]he summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale.” Chapman v. AI Transp., 229 F.3d 1012, 1026 (11th Cir. 2000).
B. The Merits of Defendant’s Motion 1. Disparate Treatment Defendant contends that it is entitled to summary judgment on Plaintiffs’ discriminatory termination and demotion claims. However, these claims cannot be resolved at this stage of the case. “A plaintiff in a Title VII discrimination case can avoid summary judgment in one of two ways. He must either (a) present direct evidence of discrimination or (b) present circumstantial evidence sufficient to shift the burden of producing contrary evidence to the defendant under the analytical framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).” Toney v. Montgomery Jobs Corps, 211 Fed. Appx. 816, 817 (11th Cir. 2006) (citing Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005)) (parallel
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citation omitted). In the instant case, Plaintiffs can, and do, avoid summary judgment via the first of these alternatives.7
“Direct evidence is ‘evidence, that, if believed, proves [the] existence of [a] fact without inference or presumption.’” Morris, 402 F.3d at 1081 (citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)) (alterations in original). “[D]irect evidence relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.’” Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998) (quoting CabanWheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990)) (alteration in original).
Although the standard in the Eleventh Circuit for what constitutes “direct evidence” is rigorous, Plaintiffs have presented this type of evidence through the deposition testimony and sworn statement of William Smalley, the former general sales manager at Magic. Smalley stated in his sworn statement that in closed-door meetings beginning a month prior to Plaintiffs’ terminations and demotion, Brian Penniman, the general manager at Magic, stated that “he had a problem with niggers in management . . . and we had to look at getting rid of them here, here being Magic Toyota.” (Sworn Statement of William Smalley, Oct. 23, 2003, Pls.’ Ex. 20, at 16-17). Smalley described a plan “to find a way [that] [the Plaintiffs] would be terminated, but [they] also had to find a way to balance that termination with four other employees”; “[i]t had to be done in a way so that nobody would come back on the dealership and file suit against them.” (Id. at 17-18). Additionally, Smalley stated that “it was
7As noted infra, Plaintiffs also would survive summary judgment under the McDonnell Douglas framework. See note 8.
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discussed that if we find four whites to balance it and then offer Seymour [Small] to demote
him, Seymour would probably leave. The four whites were basically chosen at random.” (Id.
at 19).
Smalley testified in his deposition that Penniman endorsed “a sacred plan to fire black
managers” and to demote Plaintiff Seymour Small, and “the plan specifically targeted those
individuals because of their race.” (Dep. of William Smalley, Feb. 6, 2007, Pls.’ Ex. 12, at
330). “[T]his plan was discussed over a period of time” with Penniman, and “[t]he only
reason those black managers were fired is because of their race.” (Id. at 331, 333).
The discussions and statements about which Smalley has testified constitute direct
evidence of discrimination because they are statements of a decisionmaker made in the
context of the termination and demotion decisions. Cf. Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1330 (11th Cir. 1998) (“[R]emarks by non-decisionmakers or remarks unrelated
to the decisionmaking process itself are not direct evidence of discrimination.”). If believed
by a jury, this testimony would prove discriminatory motive without inference or presumption.
In light of this direct evidence, Plaintiffs’ discriminatory termination and demotion claims survive summary judgment.8
8Because of the direct evidence presented, the Court need not address the application of the McDonnell Douglas analysis or the issue of pretext evidence. See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1191 (11th Cir. 1997) (reversing grant of summary judgment to employer were plaintiff had presented direct evidence and noting that because plaintiff had “presented sufficient direct evidence to survive summary judgment, [the court would] not address his McDonnell Douglas argument and whether he ha[d] presented evidence of pretext”). In any event, Plaintiffs’ disparate treatment claims would survive summary judgment under the McDonnell Douglas framework as well. A plaintiff may make a prima facie showing of disparate treatment by establishing that: “(1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action;
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2. Hostile Work Environment
The Intervenor-Plaintiffs also include in their Complaint – though not as a separate
count – allegations of a hostile work environment. (See Doc. 17 ¶ 34 (“The use of racial
epithets and slurs, as well as racially-oriented jokes, was prevalent at [the dealership] during
the time all of the Plaintiffs/Intervenors worked there and created a hostile work environment
for Plaintiffs/Intervenors.”)). While the conduct forming the basis of this claim is offensive,
it nevertheless fails to meet the rigorous standard for a hostile work environment claim. The
Defendant’s motion for summary judgment on this claim therefore must be granted.
To establish a Title VII hostile work environment claim, a plaintiff must show: “(1) that
he belongs to a protected group; (2) that he has been subject[ed] to unwelcome harassment;
(3) that the harassment [was] based on a protected characteristic of the employee . . . ; (4)
that the harassment was sufficiently severe or pervasive to alter the terms and conditions
of employment and create a discriminatorily abusive working environment; and (5) that the
employer is responsible for such environment under either a theory of vicarious or of direct
liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Plaintiffs
and (4) he was replaced by a person outside his protected class or was treated less favorably than a similarly-situated individual outside his protected class.” Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). Plaintiffs have done so here because (1) the Intervenor-Plaintiffs belong to a protected class; (2) they were qualified for their positions; (3) they were terminated or demoted; and (4) there is evidence that they were replaced by white employees shortly after their positions were allegedly eliminated or, with regard to Seymour Small, that he was treated less favorably than white employees. (See, e.g., Sworn Statement of William Smalley, Pls.’ Ex. 20, at 24, 30). In response to the prima facie case, Defendant has articulated a legitimate nondiscriminatory reason for its terminations and demotion of Plaintiffs – the elimination of Plaintiffs’ positions in order to cut expenses. However, the veracity of this reason is much in dispute, and the record evidence would require a trial under the McDonnell Douglas framework.
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have not presented evidence revealing the presence of a genuine issue of fact or law on their hostile work environment claim, and under the law of the Eleventh Circuit it does not survive summary judgment.
The Intervenor-Plaintiffs satisfy the first element because they belong to a protected class, and the third, element – “based on race” – is also met. However, even assuming that the second element is satisfied,9 the claim fails on the fourth element – that “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” See id. “This requirement, as defined by the Supreme Court, contains both an objective and a subjective component. Thus, to be actionable, this behavior must result in both an environment ‘that a reasonable person would find hostile or abusive’ and an environment that the victim ‘subjectively perceive[s] . . . to be abusive.’” Id. at 1276 (citations omitted) (alteration in original). “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 2122 (1993). Under these controlling principles, none of the Intervenor-Plaintiffs can meet the standard of a subjectively and objectively abusive work environment.
The summary judgment evidence establishes that two of the Intervenor-Plaintiffs
9As noted in the text infra, some of the Intervenor-Plaintiffs did not hear any racial comments or witness any racial incidents.
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never heard any racial epithets or experienced any racially-charged incidents at the dealership. Plaintiff Carlton Small testified in his deposition that he never heard anyone say anything to him or anyone else that he found racially offensive or negative. (Dep. of Carlton Small, Feb. 27, 2007, Def.’s Ex. 9, at 36-37). Plaintiff Rickey Williams similarly testified that he never heard any offensive racial comments at the dealership, and the only thing that Williams identified as racially inappropriate was his termination. (Dep. of Rickey Williams, Feb. 23, 2007, Def.’s Ex. 8, at 106-07). A third Plaintiff, Seymour Small, testified in his deposition that the only racially derogatory comments he heard at the dealership were by a salesperson, on only one occasion, just after Seymour Small was demoted. (Dep. of Seymour Small, Feb. 21, 2007, Def.’s Ex. 10, at 117-19). Seymour Small complained to Brian Penniman about the comments that the salesperson made, and after his complaint Small did not hear any further comments. (Id. at 119-20).
The other two Intervenor-Plaintiffs, Rivers and Cole, present stronger claims, each testifying in his deposition that he heard some racial comments. Rivers testified that the used car director, who is white, was known around the dealership as “the slave master” because most of his staff was black; according to Rivers, this nickname was used “a few times,” by several different people. (Dep. of Frederick Rivers, Feb. 28, 2007, Pls.’ Ex. 6, at 144-45, 160-62). Rivers also heard the finance and insurance manager, Jeff Coleman, refer to customers as “moolies,” “camel jockeys,” and “chinks.” (Id. at 156-57). Rivers told Coleman that his use of those words offended him, and Coleman did not again utter those words in Rivers’s presence. (Id. at 159-60). Additionally, another worker at the dealership wore a hat with a Confederate flag on it to work one day; Rivers asked him to take it off and
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not to wear it any more, and the worker complied. (Id. at 165-68). The most offensive conduct was experienced by Sylvester Cole. He testified in his
deposition that he heard Mark Pitre, the finance and insurance director, remark that there were “too many jungle bunnies running around” at the dealership. (Dep. of Sylvester Cole, Feb. 22, 2003, Pls.’ Ex. 5, at 137-38). On another occasion, Pitre referred to Cole as “the black boy in the corner,” and another time called him “boy.” (Id. at 138-39). Cole also recounted that he went to a New Year’s Eve party in a gated community with Pitre and a finance and insurance manager, Kelly Stelling; as they approached the gate Stelling said, “We’ll tell the gate guard that Sylvester’s the janitor.” (Id. at 140). Cole told them the remark was not funny, and they laughed. (Id. at 144). On another occasion, Stelling suggested that perhaps the reason Cole had never been to Pitre’s home was because there was “no watermelon and no chicken over there.” (Id. at 145).
Plaintiffs have submitted evidence of other incidents and utterances of racial epithets and at the dealership. (See Dep. of Laura Ruggeri, Apr. 10, 2007, Pls.’ Ex. 17, passim (stating that she heard racial terms at the dealership on a “[p]retty much daily basis” and describing those terms and other incidents). There is no evidence in the record, however, that the Intervenor-Plaintiffs knew of these other offensive events. According to Plaintiffs’ own deposition testimony, they were unaware of the occurrences or the frequency of conduct that Ruggeri described, instead knowing only of the incidents to which they testified themselves.
Although “[a] plaintiff may have a viable hostile environment claim even if the racial remarks were not directed at h[im],” Edwards v. Wallace Community College, 49 F.3d 1517,
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1522 (11th Cir. 1995), the plaintiff must have been “aware of the harassing incidents at the relevant time at which [he] alleges [he] experienced the hostile environment,” Hudson v. Norfolk Southern Railway Co., 209 F. Supp. 2d 1301, 1326 (N.D. Ga. 2001).10 Accord Brantley v. City of Macon, 390 F. Supp. 2d 1314, 1324-25 (M.D. Ga. 2005) (“Remarks and conduct targeted at others ‘may contribute to the overall hostility of the working environment.’ A plaintiff ‘may also support a claim of hostile work environment by the use of harassing conduct [he] learned of through hearsay, so long as [he] was aware of the harassing incidents at the relevant time at which [he] alleges [he] experienced the hostile environment.”) (citation omitted). In Edwards, the Eleventh Circuit, in affirming the district court’s grant of summary judgment on a hostile environment claim, noted that “some of the incidents relied upon were not made known to [the plaintiff] until after her termination and, therefore, could not have contributed to her subjective view of a hostile environment.” 49 F.3d at 1522 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)); accord Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1094-95 (10th Cir. 2007); Cottrill v. MFA, Inc., 443 F.3d 629, 636-37 (8th Cir. 2006); Wanchik v. Great Lakes Health Plan, Inc., 6 Fed. Appx. 252, 262 (6th Cir. 2001) (noting that “episodes of harassment concerning other women are probative to plaintiff’s experience in a hostile work environment, even if not directed at plaintiff herself” but “plaintiff must have been aware of these incidents during her
10Many of the cases discussing hostile work environment claims involve sexual harassment rather than racial harassment. However, the same principles govern these two types of cases. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n.10 (2002) (“Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment.”).
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employment, even if indirectly, for the accounts of others to be relevant”); Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000) (“Harassment directed towards others of which an employee is unaware can, naturally, have no bearing on whether [he] reasonably considered h[is] working environment abusive.”). Thus, conduct of which the IntervenorPlaintiffs were not aware during their employment could not have contributed to the work environment that they experienced.
Considering the conduct of which the Intervenor-Plaintiffs were aware at the relevant time, none of them was subjected to severe harassment that altered his working conditions. Although the remarks heard by three of the Plaintiff-Intervenors clearly are offensive, no physically threatening conduct has been identified; moreover, the remarks of which the Intervenor-Plaintiffs were aware were not frequent, and there is no evidence of “unreasonable interference with job performance.” See Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (noting that factors to “be considered in determining whether harassment objectively altered an employee's terms or conditions of employment [are]: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance”) (citing Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997) and Harris, 510 U.S. at 23). Carlton Small and Rickey Williams were not aware of any racially charged comments, while Seymour Small heard one comment, reported it, and never heard further comments. Rivers also reported the comments he heard, and they, too, ceased. Finally, while the comments heard by Sylvester Cole were more frequent, direct, and troubling than those experienced by the other
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Plaintiffs, Cole himself testified that he “never encountered that through [his] . . . almost four years there until those few incidents” and “it was like a surprise because it – usually it d[idn]’t happen” (Cole Dep., Def.’s Ex. 12, at 149); thus, Cole’s experience falls short of what is necessary to give rise to an actionable hostile work environment claim.
In Barrow v. Georgia Pacific Corp., 144 Fed. Appx. 54 (11th Cir. 2005), the Eleventh Circuit held that significantly more compelling facts failed to meet the test for a meritorious claim of hostile work environment. Affirming a grant of summary judgment for the employer, the Barrow court concluded that where there was evidence of “displays of the rebel flag on tool boxes and hard hats, the letters ‘KKK’ on a bathroom wall and on a block-saw console, and a noose in another employee’s locker,” as well as use of racial slurs including “nigger,” “boy,” and “black boy”; the conduct was nevertheless “isolated,” “sporadic,” and “random” and did not amount to “severe and pervasive harassment.” Id. at 57-58. Comparing the instant facts to those of Barrow,11 even Plaintiff-Intervenor Cole has failed to establish an actionable claim for a hostile work environment. See also Lusega v. Albrecht & Albrecht, Inc., No. 1:06-CV-0809-JEC, 2007 WL 2226056, at *4 (N.D. Ga. July 31, 2007) (noting that “[c]ases involving more serious allegations than plaintiff’s are routinely the subject of summary judgment orders in this Circuit”) (citing Barrow and collecting cases).
This conclusion by no means serves to diminish the impropriety of the comments described in the record, but the Intervenor-Plaintiffs may not recover damages based on an environment that may have existed but which they did not experience. The comments of
11Although Barrow is an unpublished opinion, it serves as persuasive authority. See 11th Cir. R. 36-2.
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which the Intervenor-Plaintiffs were aware were not frequent or severe enough to be actionable, and the evidence submitted by Plaintiffs does not reveal the existence of a genuine issue of material fact as to whether “the workplace [was] permeated with discriminatory intimidation, ridicule, and insult’ that [was] sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris, 510 U.S. at 21. Summary judgment is granted to Defendant on Plaintiffs’ hostile work environment claims.
III. Conclusion In accordance with the foregoing, it is ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment (Doc. 48) is GRANTED in part and DENIED in part. The motion is GRANTED as to Plaintiffs’ hostile work environment claims and is DENIED as to Plaintiffs’ claims of discriminatory termination and demotion. DONE and ORDERED in Orlando, Florida this 18th day of October, 2007.
Copies furnished to: Counsel of Record Unrepresented Party
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 UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

-vs-

Case No. 6:05-cv-1452-Orl-28KRS

FLTVT, LLC,

Defendant. ______________________________________

JUDGMENT IN A CIVIL CASE

Jury Verdict.

This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

IT IS ORDERED AND ADJUDGED that the Plaintiffs take nothing, that the action be dismissed on the merits and that the defendant FLTVT, LLC recover from the plaintiffs their costs of action.

Date: November 19, 2007

SHERYL L. LOESCH, CLERK S/D. Darley, Deputy Clerk

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

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).

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Rev. 4/04
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U.S. District Court Middle District of Florida (Orlando) CIVIL DOCKET FOR CASE #: 6:05-cv-01452-JA-KRS

CLOSED

United States Equal Employment Opportunity Commission v. FLTVT, LLC Assigned to: Judge John Antoon II Referred to: Magistrate Judge Karla R. Spaulding Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/29/2005 Date Terminated: 11/19/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
United States Equal Employment Opportunity Commission

represented by Cheryl A. Cooper Equal Employment Opportunity Commission Suite 2700 2 S Biscayne Blvd Miami, FL 33131 305/808-1853 Fax: 305/808-1835 Email: cheryl.cooper@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana Vizcaino Equal Employment Opportunity Commission Suite 2700 2 S Biscayne Blvd Miami, FL 33131 305-808-1853 Fax: 305-808-1855 Email: Diana.Vizcaino@EEOC.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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LEAD ATTORNEY 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
Lauren G. Dreilinger U. S. Equal Employment Opportunity Commission 2 South Biscayne Blvd. Suite 2700 Miami, FL 33131 305/808-1788 Fax: 305/808-1835 Email: lauren.dreilinger@eeoc.gov ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Sylvester A Cole, Jr.
Intervenor Plaintiff Frederick Rivers
Intervenor Plaintiff Carlton C Small
Intervenor Plaintiff

represented by Daniel DeCiccio DeCiccio & Johnson 652 W Morse Blvd Winter Park, FL 32789 407/740-4111 Fax: 407/740-4011 Email: dan.deciccio@deciccio.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel DeCiccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel DeCiccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Seymour S Small
Intervenor Plaintiff Rickey Williams

represented by Daniel DeCiccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel DeCiccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
FLTVT, LLC doing business as David Maus Toyota formerly known as Magic Toyota

represented by Ena T. Diaz Shook, Hardy & Bacon, LLP Suite 2400 201 S Biscayne Blvd Miami, FL 33131-4332 305/358-5171 Fax: 305/358-7470 Email: ediaz@shb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Murphy, Jr. Shook, Hardy & Bacon, LLP Suite 2900 100 N Tampa St Tampa, FL 33602 813/202-7100 Fax: 813/221-8837 Email: jbmurphy@shb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Mark Smith Shook, Hardy & Bacon, LLP 2555 Grand Blvd Kansas City, MO 64108-2613 816/474-6550 Fax: 816/421-5547 Email: ksmith@shb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlos J. Burruezo Littler Mendelson, PC 4767 New Broad St., 3rd Floor

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Orlando, FL 32814-6405 407/514-2637 Fax: 407/514-2638 Email: cburruezo@littler.com ATTORNEY TO BE NOTICED
Carrie Ann McAtee Shook, Hardy & Bacon, LLP 2555 Grand Blvd Kansas City, MO 64108-2613 816/474-6550 Fax: 816/421-5547 Email: cmcatee@shb.com ATTORNEY TO BE NOTICED
William Martucci Shook, Hardy & Bacon, LLP 2555 Grand Blvd Kansas City, MO 64108-2613 816/474-6550 Fax: 816/421-5547 ATTORNEY TO BE NOTICED

Date Filed 09/29/2005 09/29/2005 10/21/2005
10/21/2005
11/17/2005 11/17/2005 12/13/2005

# Docket Text
1 COMPLAINT against FLTVT, LLC ; jury demand , filed by United States Equal Employment Opportunity Commission.(IGC) (Entered: 09/29/2005)
Summons issued as to FLTVT, LLC. (IGC) (Entered: 09/29/2005)
2 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 - track 2. Notice of pendency of other actions due within 11 days from the date of this order.Signed by Judge John Antoon II on 10/21/2005. (DJD, ) (Entered: 10/21/2005)
3 INTERESTED PERSONS ORDER Certificate of interested persons and corporate disclosure statement due within 11 days from the date of this order.Signed by Judge John Antoon II on 10/21/2005. (DJD, ) (Entered: 10/21/2005)
4 NOTICE of pendency of other actions re 2 order of compliance to Local Rule by United States Equal Employment Opportunity Commission Related case(s): no (Dreilinger, Lauren) Modified on 11/18/2005 (IGC). (Entered: 11/17/2005)
5 Certificate of Interested Persons & Corporate disclosure statement re 3 Interested Persons Order by United States Equal Employment Opportunity Commission (Dreilinger, Lauren) Modified on 11/18/2005 (IGC). (Entered: 11/17/2005)
6 MOTION for extension of time to file answer or otherwise plead by FLTVT, LLC. (Burruezo, Carlos) (Entered: 12/13/2005)

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12/16/2005 12/19/2005 12/29/2005
01/03/2006 01/03/2006 01/03/2006 01/03/2006 01/04/2006 01/04/2006 01/05/2006 01/09/2006
01/24/2006 02/07/2006
02/09/2006 03/01/2006 03/02/2006

7 ORDER granting 6 Motion for extension of time to answer or respond. FLTVT, LLC answer due 1/3/2006 . Signed by Judge Karla R. Spaulding on 12/16/2005. (SJB, ) (Entered: 12/16/2005)
8 RETURN of service executed on 11/22/05 by United States Equal Employment Opportunity Commission as to FLTVT, LLC. (IGC) (Entered: 12/19/2005)
9 MOTION to intervene by Sylvester A Cole, Jr., Frederick Rivers, Carlton C Small, Seymour S Small, Rickey Williams. (Attachments: # 1 Exhibit Verified Intervenor Complaint# 2 Exhibit Letters of Determination# 3 Exhibit Notice of Determination)(DeCiccio, Daniel) (Entered: 12/29/2005)
10 ANSWER to complaint by FLTVT, LLC.(Murphy, James) (Entered: 01/03/2006)
11 NOTICE of Appearance by James B. Murphy, Jr on behalf of FLTVT, LLC (Murphy, James) (Entered: 01/03/2006)
12 NOTICE of pendency of other actions re order of compliance to Local Rule by FLTVT, LLC Related case(s): n (Murphy, James) (Entered: 01/03/2006)
13 CERTIFICATE of interested persons and corporate disclosure statement by FLTVT, LLC. (Murphy, James) (Entered: 01/03/2006)
14 ENDORSED ORDER granting 9 Motion to intervene. Plaintiffs/Intevenors must file their Complaint as a separate document. Signed by Judge John Antoon II on 1/4/2006. (EMW) (Entered: 01/04/2006)
15 MOTION for William C. Martucci & Carrie McAtee to appear pro hac vice by James B. Murphy, Jr on behalf of FLTVT, LLC. (Murphy, James) Modified on 1/5/2006 (IGC). (Entered: 01/04/2006)
16 ORDER granting 15 motion to appear pro hac vice . Signed by Judge Karla R. Spaulding on 1/5/2006. (SJB, ) (Entered: 01/05/2006)
17 Verified INTERVENOR'S COMPLAINT & Demand for Jury Trial, filed by all plaintiffs. (Attachments: # 1 Verification to Verified Intervenors Complaint# 2 Exhibit Composite Exhibit A - Letters of Determination)(DeCiccio, Daniel) Modified on 1/10/2006 (IGC). (Entered: 01/09/2006)
18 WAIVER OF SERVICE returned executed on 01/17/2006 by Frederick Rivers. Waiver of Service sent on 01/11/2006 as to FLTVT, LLC. (DeCiccio, Daniel) (Entered: 01/24/2006)
19 INTERESTED PERSONS ORDER Certificate of interested persons and corporate disclosure statement due by intervenor plaintiffs within 11 days from the date of this order. Signed by Judge John Antoon II on 2/7/2006. (DJD, ) (Entered: 02/07/2006)
20 CERTIFICATE of interested persons and corporate disclosure statement re 19 Interested Persons Order by Frederick Rivers. (DeCiccio, Daniel) Modified on 2/10/2006 (IGC). (Entered: 02/09/2006)
21 CASE MANAGEMENT REPORT. (Dreilinger, Lauren) (Entered: 03/01/2006)
22 CASE MANAGEMENT AND SCHEDULING ORDER. Signed by Judge John Antoon II on 3/2/2006. (EMW) (Entered: 03/02/2006)

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03/13/2006 03/15/2006 03/01/2007
03/05/2007 03/06/2007 03/23/2007 03/28/2007 03/30/2007 03/30/2007 05/04/2007
05/14/2007
05/16/2007
05/16/2007 05/17/2007

23 ANSWER to intervenor complaint by FLTVT, LLC.(Murphy, James) (Entered: 03/13/2006)
24 AMENDED ANSWER to 17 Intervenor Complaint, by FLTVT, LLC. (Murphy, James) (Entered: 03/15/2006)
25 Joint MOTION for Extension of Time to Complete Discovery and Related Case Deadlines by FLTVT, LLC. (Attachments: # 1 Text of Proposed Order)(McAtee, Carrie) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 03/01/2007)
26 ORDER granting in part and denying in part 25 Motion for Extension of Time.Signed by Judge John Antoon II on 3/5/2007. (BRS) (Entered: 03/05/2007)
27 NOTICE of Appearance by Ena T. Diaz on behalf of FLTVT, LLC (Diaz, Ena) (Entered: 03/06/2007)
28 ORDER that the parties are directed to file their Notice of Mediation no later than March 28, 2007. Signed by Judge John Antoon II on 3/23/2007. (BRS) (Entered: 03/23/2007)
29 JOINT NOTICE by United States Equal Employment Opportunity Commission Notice of Mediation set for 5/15/07 at 10:30 a.m. (Dreilinger, Lauren) Modified on 3/28/2007 (IGC). (Entered: 03/28/2007)
30 Unopposed MOTION for Kevin M. Smith to appear pro hac vice by FLTVT, LLC. (Attachments: # 1 Exhibit Written Designation)(Diaz, Ena) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 03/30/2007)
31 ORDER granting 30 motion to appear pro hac vice. Signed by Judge Karla R. Spaulding on 3/30/2007. (JML, ) (Entered: 03/30/2007)
32 MOTION to compel Plaintiffs Fred Rivers and Seymour Small to Submit to a Psychological Evaluation Pursuant to Rule 35 and Memorandum of Law in Support Thereof by FLTVT, LLC. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Diaz, Ena) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 05/04/2007)
33 RESPONSE in opposition re 32 MOTION to compel Plaintiffs Fred Rivers and Seymour Small to Submit to a Psychological Evaluation Pursuant to Rule 35 and Memorandum of Law in Support Thereof filed by Frederick Rivers. (Attachments: # 1 Exhibit A through D)(DeCiccio, Daniel) (Entered: 05/14/2007)
34 REPLY to 33 response to motion re 32 MOTION to compel Plaintiffs Fred Rivers and Seymour Small to Submit to a Psychological Evaluation Pursuant to Rule 35 and Memorandum of Law in Support Thereof filed by FLTVT, LLC. (McAtee, Carrie) Modified on 5/16/2007 (IGC). ***STRICKEN PER ORDER ENTERED ON 5/17/07 - DOCUMENT NO. 36*** (Entered: 05/16/2007)
35 MEDIATION REPORT Hearing held on 5/15/2007 Hearing outcome: IMPASSE(Singletary, Cary) (Entered: 05/16/2007)
36 ORDER to strike re: 34 Reply to response to motion, filed by FLTVT, LLC. This is an unauthorized reply memorandum that will not be considered by the Court. See Local Rule 3.01(c). Signed by Judge Karla R. Spaulding on 5/17/2007.

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07/10/2007 07/12/2007 07/13/2007 07/13/2007

(Spaulding, Karla) (Entered: 05/17/2007)
37 ORDER denying 32 Motion to compel. Signed by Judge Karla R. Spaulding on 5/18/2007. (JML, ) (Entered: 05/18/2007)
38 MOTION to compel Plaintiffs' Employment Records and Memorandum of Law in Support Thereof by FLTVT, LLC. (Diaz, Ena) Motions referred to Magistrate Judge Karla R. Spaulding. (Entered: 06/13/2007)
39 RESPONSE to motion re 38 MOTION to compel Plaintiffs' Employment Records and Memorandum of Law in Support Thereof filed by Frederick Rivers, SylvesterA. Cole, Jr., Carlton C. Small, Seymour S. Small, Ricky Williams & United States Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(DeCiccio, Daniel) Modified on 6/26/2007 (IGC). (Entered: 06/25/2007)
40 ORDER denying 38 Motion to compel. Signed by Judge Karla R. Spaulding on 7/10/2007. (JML, ) (Entered: 07/10/2007)
41 Daubert MOTION regarding defendant's expert report by Frederick Rivers. (Attachments: # 1 Exhibit)(DeCiccio, Daniel) Modified on 7/13/2007 (MJT). (Entered: 07/12/2007)
42 MOTION for summary judgment by FLTVT, LLC. (McAtee, Carrie) **STRICKEN PER ORDER ENTERED ON 7/17/07 - DOCUMENT NO. 45**(IGC). (Entered: 07/13/2007)
43 MEMORANDUM in support re 42 Motion for summary judgment filed by FLTVT, LLC. (Attachments: # 1 Exhibit Seymour Small Depo# 2 Exhibit Seymour Small Depo# 3 Exhibit 1-3 Seymour Small Depo# 4 Exhibit 1-4 Seymour Small Depo# 5 Exhibit 2-1 Carlton Small Depo# 6 Exhibit 2-2 Carlton Small Depo# 7 Exhibit 2-3 Carlton Small Depo# 8 Exhibit 3-1 Cole Depo# 9 Exhibit 3-2 Cole Depo# 10 Exhibit 3-3 Cole Depo# 11 Exhibit 3-4 Cole Depo# 12 Exhibit 3A Cole Interrogatory Answer# 13 Exhibit 4-1 Rivers Depo# 14 Exhibit 4-2 Rivers Depo# 15 Exhibit 4-3 Rivers Depo# 16 Exhibit 4-4 Rivers Depo# 17 Exhibit 5-1 Williams Depo# 18 Exhibit 5-2 Williams Depo# 19 Exhibit 5-3 Williams Depo# 20 Exhibit 6-1 Penniman Depo# 21 Exhibit 6-2 Penniman Depo# 22 Exhibit 6-3 Penniman Depo# 23 Exhibit 6-4 Penniman Depo# 24 Exhibit 6-5 Penniman Depo# 25 Exhibit 6-6 Penniman Depo# 26 Exhibit 7-1 6/8/07 McCumber Depo# 27 Exhibit 7-2 6/8/07 McCumber Depo# 28 Exhibit 8 Handbook Excerpts# 29 Exhibit 9-1 Barnes Depo# 30 Exhibit 9-2 Barnes Depo# 31 Exhibit 10-1 Lopez Depo# 32 Exhibit 10-2 Lopez Depo# 33 Exhibit 10-3 Lopez Depo# 34 Exhibit 10-4 Lopez# 35 Exhibit 10-5 Lopez Depo# 36 Exhibit 10-6 Lopez Depo# 37 Exhibit 11 3rd Quarter 2002 Poster# 38 Exhibit 12 4th Quarter 2002 Poster# 39 Exhibit 13 January 2004 Poster# 40 Exhibit 14-1 4/13/07 McCumber Depo# 41 Exhibit 14-2 4/13/07 McCumber Depo# 42 Exhibit 14-3 4/13/07 McCumber Depo.# 43 Exhibit 15-1 McRae Decl. and report# 44 Exhibit 15-2 McRae Decl. and report# 45 Exhibit 16 Cole Acknowledgement# 46 Exhibit 17-1 Harrison Depo# 47 Exhibit 17-2 Harrison Depo# 48 Exhibit 18-1 Eastridge Depo# 49 Exhibit 18-2 Eastridge Depo# 50 Exhibit 18-3 Eastridge Depo# 51 Exhibit 19 May 5, 2003 e-mail# 52 Exhibit 20-1 Van Tuyl Depo# 53 Exhibit 20-2 Van Tuyl Depo# 54 Exhibit 21-1 Maus Depo# 55 Exhibit 21-2 Maus Depo# 56 Exhibit 21-3 Maus Depo# 57 Exhibit 22-1 Taub Depo# 58 Exhibit 22-2

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Taub Depo# 59 Exhibit 22-3 Taub Depo# 60 Exhibit 23-1 Ruggeri Depo# 61 Exhibit 23-2 Ruggeri Depo)(McAtee, Carrie) **STRICKEN PER ORDER ENTERED ON 7/17/07 - DOCUMENT NO. 45** (IGC). (Entered: 07/13/2007)
44 DAUBERT MOTION in limine regarding Plaintiffs' Offer of Testimony from Joyce Eastridge by FLTVT, LLC. (Attachments: # 1 Exhibit Plaintiffs' Expert Disclosure Document# 2 Exhibit Eastridge Expert Report on Financial Information# 3 Exhibit July 9 Letter to Plaintiffs' Counsel# 4 Exhibit July 11 Letter from Plaintiffs' Counsel# 5 Exhibit Argiz Report# 6 Exhibit Inouye Report (Part I)# 7 Exhibit Inouye Report (Part II)# 8 Exhibit Inouye Report (Part III)# 9 Exhibit Eastridge Letter# 10 Exhibit Eastridge Deposition Transcript Excerpts)(Smith, Kevin) Modified on 10/24/2007 (IGC). (Entered: 07/14/2007)
45 ORDER striking 42 Motion for summary judgment and 43 Suggestions in Support of Defendant FLTVT, LLC's Motion for Summary Judgment. Defendant FLTVT, LLC shall have until July 19, 2007, to file its Motion for Summary Judgment and Memorandum in accordance with the requirements of Local Rule 3.01(a). Signed by Judge John Antoon II on 7/17/2007. (BRS) (Entered: 07/17/2007)
46 MOTION to strike 43 Memorandum in support,,,,,,,, and Motion for Summary Judgment by all plaintiffs. (Attachments: # 1 Exhibit # 2 Exhibit)(Dreilinger, Lauren) (Entered: 07/17/2007)
47 ENDORSED ORDER denying as moot 46 Motion to strike. Signed by Judge John Antoon II on 7/18/2007. (BRS) (Entered: 07/18/2007)
48 MOTION for summary judgment and memorandum of law in support thereof (dispositive motion)) by FLTVT, LLC. (Attachments: # 1 Exhibit 1-1 (6-8-7 McCumber Deposition)# 2 Exhibit 1-2# 3 Exhibit 2 (Handbook Excerpts)# 4 Exhibit 3-1 (Lopez Deposition)# 5 Exhibit 3-2# 6 Exhibit 4-1 (4-13-07 McCumber Deposition)# 7 Exhibit 4-2# 8 Exhibit 4-3# 9 Exhibit 5-1 (Barnes Deposition)# 10 Exhibit 5-2# 11 Exhibit 6 (2002 and 2003 Materials)# 12 Exhibit 7-1 (McRae Affidavit and Expert Report)# 13 Exhibit 7-2# 14 Exhibit 8-1 (Williams Deposition)# 15 Exhibit 8-2# 16 Exhibit 8-3# 17 Exhibit 9-1 (Carlton Small Deposition)# 18 Exhibit 9-2# 19 Exhibit 9-3# 20 Exhibit 10-1 (Seymour Small Deposition)# 21 Exhibit 10-2# 22 Exhibit 10-3# 23 Exhibit 10-4# 24 Exhibit 11-1 (Rivers Deposition)# 25 Exhibit 11-2# 26 Exhibit 11-3# 27 Exhibit 11-4# 28 Exhibit 12-1 (Cole Deposition)# 29 Exhibit 12-2# 30 Exhibit 12-3# 31 Exhibit 12-4# 32 Exhibit 13 (Cole Acknowledgement)# 33 Exhibit 14-1 (Penniman Deposition)# 34 Exhibit 14-2# 35 Exhibit 14-3# 36 Exhibit 14-4# 37 Exhibit 14-5# 38 Exhibit 14-6# 39 Exhibit 15-1 (Harrison Deposition)# 40 Exhibit 15-2# 41 Exhibit 16-1 (Eastridge Deposition)# 42 Exhibit 16-2# 43 Exhibit 16-3# 44 Exhibit 17-1 (Van Tuyl Deposition)# 45 Exhibit 17-2# 46 Exhibit 18-1 (Maus Deposition)# 47 Exhibit 18-2# 48 Exhibit 18-3# 49 Exhibit 19-1 (Taub Deposition)# 50 Exhibit 19-2# 51 Exhibit 19-3)(McAtee, Carrie) (Entered: 07/19/2007)
49 MEMORANDUM in opposition re 41 Motion for miscellaneous relief filed by FLTVT, LLC. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(McAtee, Carrie) (Entered: 07/23/2007)

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50 RESPONSE in opposition re 44 MOTION in limine regarding Plaintiffs' Offer of Testimony from Joyce Eastridge filed by United States Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Dreilinger, Lauren) (Entered: 07/27/2007)
51 UNOPPOSED MOTION to dismiss Defamation Claim by Sylvester A Cole, Jr. (Attachments: # 1 Exhibit)(DeCiccio, Daniel) Modified on 8/2/2007 (IGC). (Entered: 08/01/2007)
52 RESPONSE in opposition to Defendant's 48 Motion for Summary Judgment filed by United States Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service# 2 Plaintiffs' Exhibit List# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10(A)# 13 Exhibit 10(B)# 14 Exhibit 10(C)# 15 Exhibit 11# 16 Exhibit 12# 17 Exhibit 13# 18 Exhibit 14# 19 Exhibit 15# 20 Exhibit 16# 21 Exhibit 17# 22 Exhibit 18# 23 Exhibit 19# 24 Exhibit 20# 25 Exhibit 21# 26 Exhibit 22# 27 Exhibit 23# 28 Exhibit 24# 29 Exhibit 25# 30 Exhibit 26# 31 Exhibit 27# 32 Exhibit 28# 33 Exhibit 29# 34 Exhibit 30# 35 Exhibit 31# 36 Exhibit 32# 37 Exhibit 33# 38 Exhibit 34# 39 Exhibit 35(A)# 40 Exhibit 35(B)# 41 Exhibit 36# 42 Exhibit 37# 43 Exhibit 38# 44 Exhibit 39)(Dreilinger, Lauren) Modified on 8/6/2007 (IGC). (Entered: 08/03/2007)
53 ORDER granting 51 Motion to dismiss defamation claim. Signed by Judge John Antoon II on 8/9/2007. (BRS) (Entered: 08/09/2007)
54 MOTION for leave to file Reply to 52 Response in Opposition to Defendants 48 Motion for Summary Judgment by FLTVT, LLC. (McAtee, Carrie) Modified on 8/10/2007 (IGC). (Entered: 08/10/2007)
55 ORDER granting 54 Motion for leave to file Reply. Signed by Judge John Antoon II on 9/2/2007. (BRS) (Entered: 09/03/2007)
56 REPLY to 52 response to motion in support of its 48 motion for summary judgment filed by FLTVT, LLC. (McAtee, Carrie) Modified on 9/13/2007 (IGC). (Entered: 09/12/2007)
57 PRETRIAL STATEMENT by Frederick Rivers. (DeCiccio, Daniel) **Called attorney on 9/14/07 to refile pleading - improper format** (Entered: 09/13/2007)
58 PROPOSED voir dire questions by Frederick Rivers. (DeCiccio, Daniel) (Entered: 09/13/2007)
59 PROPOSED jury instructions by United States Equal Employment Opportunity Commission. (Curtin, Nora) (Entered: 09/13/2007)
60 JOINT PRETRIAL STATEMENT by Frederick Rivers. (DeCiccio, Daniel) Modified on 9/17/2007 (IGC). (Entered: 09/17/2007)
61 MOTION in limine by all plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Dreilinger, Lauren) (Entered: 09/20/2007)
62 TRIAL BRIEF Plaintiffs' by United States Equal Employment Opportunity Commission. (Attachments: # 1)(Dreilinger, Lauren) (Entered: 09/20/2007)

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63 STIPULATION (JOINT) by FLTVT, LLC. (McAtee, Carrie) **Pleading not signed - refiled at document no. 64** (Entered: 09/20/2007)
64 STIPULATION (JOINT) (with signatures) by FLTVT, LLC. (McAtee, Carrie) (Entered: 09/20/2007)
65 MOTION in limine (and Incorporated Memorandum of Law in Support Thereof) by FLTVT, LLC. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(McAtee, Carrie) (Entered: 09/20/2007)
66 RESPONSE in opposition re 65 MOTION in limine (and Incorporated Memorandum of Law in Support Thereof) Plaintiffs' filed by United States Equal Employment Opportunity Commission. (Attachments: # 1 # 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11)(Dreilinger, Lauren) (Entered: 10/01/2007)
67 MEMORANDUM in opposition re 61 Motion in limine filed by FLTVT, LLC. (Attachments: # 1 Exhibit Intervenor Rivers' Response to Request for Production No. 22# 2 Exhibit Intervenor Williams' Deposition Excerpts# 3 Exhibit Maxwell v. Health Center of Lake City# 4 Exhibit Intervenor Rivers Depo Excerpts# 5 Exhibit Smalley Statement# 6 Exhibit Smalley Depo Excerpts# 7 Exhibit Hill Statement)(McAtee, Carrie) (Entered: 10/02/2007)
68 MOTION for leave to file amended exhibit list by Frederick Rivers. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(DeCiccio, Daniel) Modified on 10/3/2007 (IGC). Modified on 10/17/2007 (LAK). (Entered: 10/02/2007)
69 MEMORANDUM in opposition re 68 Motion for leave to file amended exhibit list filed by FLTVT, LLC. (McAtee, Carrie) Modified on 10/17/2007 (LAK). (Entered: 10/16/2007)
70 ORDER granting in part and denying in part 48 Motion for Summary Judgment. The motion is granted as to Plaintiffs' hostile work environment claims and is denied as to Plaintiffs' claims of discriminatory termination and demotion. Signed by Judge John Antoon II on 10/18/2007. (ek) (Entered: 10/18/2007)
71 NOTICE of Hearing: Final Pretrial Conference set for 10/30/2007 at 09:30 AM in Courtroom 6 B before Judge John Antoon II. Trial counsel must appear in person at the Final Pretrial Conference. Counsel should be prepared to discuss pending motions in limine and any objections to exhibits and witnesses.(DJD, ) (Entered: 10/19/2007)
72 TRIAL CALENDAR for trial term November 2007 (DJD, ) Additional attachment(s) added on 10/26/2007 (DJD, ). (Entered: 10/25/2007)
73 MOTION Excuse Appearance of Local Counsel And Incorporated Memorandum of Law in Support Thereof by FLTVT, LLC. (McAtee, Carrie) (Entered: 10/29/2007)
74 MOTION to allow electronic equipment, specifically cell phone, laptop computer and portable printer by Frederick Rivers. (DeCiccio, Daniel) (Entered: 10/29/2007)

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75 NOTICE of Appearance by Maria Kate Boehringer on behalf of United States Equal Employment Opportunity Commission (Boehringer, Maria) (Entered: 10/29/2007)
76 ENDORSED ORDER granting 73 Motion to excuse appearance of local counsel. Signed by Judge John Antoon II on 10/30/2007. (BRS) (Entered: 10/30/2007)
77 MOTION to allow electronic equipment, specifically Cellular Telephones, Laptop Computers, BlackBerry Devices, Projector, and Accessory Equipment (Into Courthouse For Trial) by FLTVT, LLC. (McAtee, Carrie) (Entered: 10/30/2007)
81 MINUTE ENTRY for proceedings held before Judge John Antoon II : FINAL PRETRIAL CONFERENCE held on 10/30/2007. Parties estimate 10 days for trial. Court to commence with Jury Selection on Monday, November 5, 2007. Court Reporter: Tony Rolland (DJD, ) (Entered: 11/02/2007)
82 ORAL ORDER granting in part and denying in part 44 Motion in limine; Granting in part and reserving ruling in part 61 Motion in limine; Taking under advisement 65 Motion in limine; Granting 68 Motion for leave to file amended exhibit list; Granting 74 Motion to allow electronic equipment; Granting 77 Motion to allow electronic equipment. Entered by Judge John Antoon II on 10/30/2007. (DJD, ) (Entered: 11/02/2007)
83 ORE TENUS MOTION in limine to exclude the testimony of Jerry McDaniel and regarding Mr. Ornstein by United States Equal Employment Opportunity Commission. (DJD, ) (Entered: 11/02/2007)
84 ORAL ORDER granting in part and denying in part 83 Motion in limine. Entered by Judge John Antoon II on 10/30/2007. (DJD, ) (Entered: 11/02/2007)
78 NOTICE of Filing Additional Authority in Opposition to Defendant's 65 Motion in Limine and in support of 66 Response in opposition to motion, by United States Equal Employment Opportunity Commission (Attachments: # 1 Exhibit: Bass v. Board of County Commissioners; # 2 Exhibit: Bernstein v. Sephora; # 3 Exhibit: Ryder v. Westinghouse Electric Corp.#; (4) Exhibit: Damon v. Fleming Supermarkets of Florida, Inc.; # 5 Exhibit: Ostrowski v. Atlantic Mutual Insurance Co.; # 6 Exhibit: Stubblefield v. Trinity Industries, Inc.)(Boehringer, Maria) Modified on 11/1/2007 (JET). (Entered: 10/31/2007)
79 NOTICE of supplemental authority re 65 MOTION in limine (and Incorporated Memorandum of Law in Support Thereof) by FLTVT, LLC (McAtee, Carrie) (Entered: 11/01/2007)
80 MOTION to strike 79 Notice of supplemental authority, or in the alternative, MOTION for permission to file reply by United States Equal Employment Opportunity Commission. (Boehringer, Maria) Modified on 11/2/2007 (JET). (Entered: 11/01/2007)
85 NOTICE of Appearance by Maria Kate Boehringer on behalf of United States Equal Employment Opportunity Commission (Boehringer, Maria) (Entered: 11/02/2007)
86 ORDER granting Daniel DeCiccio permission to use Laptop Computer and Cellular telephone in Courtroom No. 3A for trial commencing November 5, 2007.

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Signed by Judge John Antoon II on 11/2/2007. (DJD, ) (Entered: 11/02/2007)
87 ORDER allowing Carrie McAtee and William Martucci to bring in a laptop computer and cellular telephone into Courtroom No. 3A for use at trial commencing Monday, November 5, 2007. Signed by Judge John Antoon II on 11/2/2007. (DJD, ) (Entered: 11/02/2007)
88 MOTION to allow electronic equipment, specifically Laptop Computer and Cellular Telephones by United States Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 11/02/2007)
89 MINUTE ENTRY for proceedings held before Judge John Antoon II : Voir Dire held on 11/5/2007. Jury selected and sworn. Plaintiffs witness: William Smalley. Court to reconvene at 9:00 a.m. on Tuesday, November 6, 2007. Court Reporter: Tony Rolland (DJD, ) (Entered: 11/06/2007)
90 MINUTE ENTRY for proceedings held before Judge John Antoon II : JURY TRIAL (DAY TWO) held on 11/6/2007. Continued testimony of plaintiffs witness: William Smalley; Plaintiffs witness: Frederick Rivers. Court to reconvene at 9:00 a.m. on Wednesday, November 7, 2007 Court Reporter: Tony Rolland (DJD, ) (Entered: 11/07/2007)
91 MINUTE ENTRY for proceedings held before Judge John Antoon II : JURY TRIAL (DAY THREE) held on 11/7/2007. Continued testimony of Frederick Rivers; Plaintiffs witness: Seymour Small; Court to reconvene at 9:00 a.m. on Thursday, November 8, 2007. Court Reporter: Tony Rolland (DJD, ) (Entered: 11/08/2007)
92 MINUTE ENTRY for proceedings held before Judge John Antoon II : JURY TRIAL (DAY FOUR) held on 11/8/2007. Juror requested to be excused for remainder of trial; Court grants jurors request. Continued testimony of Seymour Small; Plaintiffs witnesses: Carlton Small, and Rickey Williams. Court GRANTS EEOC's Motion to allow laptop and cellular telephones into the courtroom for trial (Doc. No. 88). Separate order to be entered. Court to reconvene at 8:30 a.m. on Tuesday, November 13, 2007. Court Reporter: Tony Rolland (DJD, ) (Entered: 11/09/2007)
93 ORDER granting EEOC's 88 Motion to allow electronic equipment including laptop computer and cellular telephone into Courtroom No. 3A for use at trial. Signed by Judge John Antoon II on 11/9/2007. (DJD, ) (Entered: 11/09/2007)
94 MOTION to strike Mark Ornstein by Frederick Rivers. (DeCiccio, Daniel) (Entered: 11/09/2007)
95 RESPONSE in opposition re 94 MOTION to strike Mark Ornstein filed by FLTVT, LLC. (McAtee, Carrie) (Entered: 11/12/2007)
96 Minute Entry. Proceedings held before Judge John Antoon II: Granting in part and denying in part 65 Motion in limine; denying 94 Motion to strike Mark Ornstein; JURY TRIAL (DAY FIVE) held on 11/13/2007. Plaintiffs witnesses: Laura Jean Ruggeri, Sylvester A. Cole, Jr. Plaintiff rests. Defendant's witness: Bryan E. Penniman. Court to reconvene at 9:00 a.m. on Wednesday, November 14, 2007. Court Reporter: Tony Rolland (DJD) (Entered: 11/15/2007)

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98 MOTION for Judgment as a Matter of Law at the end of Plaintiff's Case-In-Chief by FLTVT, LLC. filed in open court. (DJD) (Entered: 11/15/2007)
97 Minute Entry. Proceedings held before Judge John Antoon II: JURY TRIAL (DAY SIX) held on 11/14/2007. Continued testimony of Bryan Penniman; Defendant's witnesses: Jose Danny Taub, Larry Barnes, Tamara Hill and deposition testimony of Mark Petri. Court to reconvene at 9:00 a.m. on Thursday, November 15, 2007. Court Reporter: Tony Rolland (DJD) (Entered: 11/15/2007)
99 Minute Entry. Proceedings held before Judge John Antoon II: JURY TRIAL (DAY SEVEN) held on 11/15/2007. Defendant's witnesses: Tony Argiz, John J. Walsh, III and Julie Ann McCumber; Deposition testimony of Scott Harrison in Plaintiff's Case-in-chief read in open court. Court to reconvene at 9:45 a.m. on Friday, November 16, 2007. Court Reporter: Tony Rolland (DJD) (Entered: 11/15/2007)
100 Minute Entry. Proceedings held before Judge John Antoon II: JURY TRIAL (DAY EIGHT) held on 11/16/2007. Defendant's witnesses: Hugh Palmer, Ricardo Santana Ortiz, Damin Ferguson, Derek Alphonso, David Maus, Deposition testimony of Larry Van Tuyl, Video testimony of Kathryn Lopez, Mary Ann Peel. Defendant rests; RENEWED ORE TENUS MOTION by defendant for Judgment as a Matter of Law - Court takes Motion under advisement. Court to reconvene at 8:30 a.m. on Monday, November 19, 2007 for charge conference. Court Reporter: Tony Rolland (DJD) (Entered: 11/19/2007)
101 Minute Entry. Proceedings held before Judge John Antoon II: JURY TRIAL (DAY NINE) completed on 11/19/2007. Jury reaches verdict in favor of defendant. Court Reporter: Tony Rolland (DJD) (Entered: 11/19/2007)
102 COURT'S JURY INSTRUCTIONS. (DJD) (Entered: 11/19/2007)
103 JURY VERDICT in favor of defendant. (DJD) (Entered: 11/19/2007)
104 EXHIBIT LIST by United States Equal Employment Opportunity Commission, Sylvester A Cole, Jr., Frederick Rivers, Carlton C Small, Seymour S Small, Rickey Williams. (DJD) (Entered: 11/19/2007)
105 EXHIBIT LIST by FLTVT, LLC.(DJD) (Entered: 11/19/2007)
106 COURT'S EXHIBIT LIST. (DJD) (Entered: 11/19/2007)
107 JUDGMENT in favor of FLTVT, LLC against United States Equal Employment Opportunity Commission, Carlton C Small, Frederick Rivers, Rickey Williams, Seymour S Small, Sylvester A Cole, Jr. (DJD) (Entered: 11/19/2007)
108 PROPOSED BILL OF COSTS by FLTVT, LLC. (Attachments: # 1 Exhibit 1, # 2 Tab A, # 3 Tab B, # 4 Tab C, # 5 Tab D)(McAtee, Carrie) **Called attorney on 12/3/07 to refile amended proposed bill of costs - total amount on this pleading is incorrect** (IGC). (Entered: 11/30/2007)
109 AMENDED PROPOSED BILL OF COSTS (AMENDED) by FLTVT, LLC. (Attachments: # 1 Exhibit 1, # 2 Tab A, # 3 Tab B, # 4 Tab D, # 5 Tab D)(McAtee, Carrie) Modified on 12/4/2007 (IGC). (Entered: 12/03/2007)

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12/04/2007

110 BILL OF COSTS taxed against United States Equal Employment Opportunity Commission, Sylvester Cole, Frederick Rivers, Carlton Small, Seymour Small & Rickey Williams Signed by Deputy Clerk. (IGC) (Entered: 12/04/2007)

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