UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

V&J FOODS, INC.

)

)

Defendant.

)

__________________________________________)

Civil Action No.
COMPLAINT Jury Trial Demand

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e et seq. (“Title VII”), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a to correct

unlawful employment practices on the basis of sex and retaliation, and to provide appropriate relief

to Samekiea Merriweather who was adversely affected by such practices when her manager at one

of defendant’s Burger King restaurants subjected her to sexual harassment, created a hostile working

environment, and discharged her because of her refusal to submit to the harassment and because of

her opposition to such unlawful employment practices.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343,

and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII") and

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

2. The unlawful employment practices alleged were committed within the jurisdiction

of the United States District Court for the Eastern District of Wisconsin.

PARTIES 3. The plaintiff, the Equal Employment Opportunity Commission ("EEOC"), is the agency of the United States of America charged with administering, interpreting, and enforcing 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)(1) and (3). 4. At all relevant times, the defendant, V&J Foods, Inc., has continuously been and is now a Wisconsin corporation doing business in the City of Milwaukee, Wisconsin, and has continuously had at least 15 employees. 5. At all relevant times, V&J Foods, Inc. has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g), and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g), and (h).
STATEMENT OF CLAIMS 6. More than 30 days prior to the institution of this lawsuit, Samekiea Merriweather, a former V&J Foods, Inc. employee, filed charges with the EEOC alleging violations of Title VII by V&J Foods, Inc. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. During Merriweather’s employment, V&J Foods, Inc. engaged in unlawful employment practices at its facility at its Burger King restaurant at 3219 N. 35th Street, Milwaukee, Wisconsin, in violation of Sections 703(a) and 704(a) of Title VII, 42 U.S.C. §§ 2000e-2 and 2000e3. Among other things, its manager subjected Merriweather, at the time a minor, to sexual harassment (including, but not limited to, unwelcome physical touching, propositions for sex, sexual comments, and quid pro quo requests for sex in exchange for favorable work conditions), which further created a sexually hostile work environment. V&J Foods, despite actual or constructive
2

notice of the situation, failed and refused to take prompt and appropriate action to correct the harassment and the resulting hostile environment. This situation continued until the manager discharged Merriweather, for her refusal to submit to the harassment and her opposition to such discriminatory practices.
8. The effect of the practices complained of in Paragraph 7 above has been to deprive Merriweather of equal employment opportunities and otherwise adversely affect her status as an employee, because of her sex and in retaliation for her opposition to discriminatory practices.
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 Merriweather’s federally protected rights.
PRAYER FOR RELIEF WHEREFORE, the EEOC respectfully requests that this Court: A. Grant a permanent injunction enjoining V&J Foods, Inc. and its officers, successors, and assigns, and all persons in active concert or participation with them, from engaging in sexual harassment, any other employment practice which discriminates on the basis of sex, and retaliation for opposition to such practices. B. Order V&J Foods, Inc. to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices. C. Order V&J Foods, Inc. to make Merriweather whole by providing appropriate backpay and benefits, with pre-judgment interest, in amounts to be determined at trial, and other
3

affirmative relief necessary to eradicate the effects of its unlawful employment practices, including (but not limited to) rightful place instatement and/or frontpay in lieu thereof.
D. Order V&J Foods, Inc. to make Merriweather whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices described in Paragraph 7 above, including (but not limited to) emotional pain, suffering, and humiliation, in amounts to be determined at trial.
E. Order V&J Foods to pay Merriweather punitive damages for its malicious and reckless conduct described in Paragraph 7 above, in amounts to be determined at trial.
F. Grant such further relief as the Court deems necessary and proper in the public interest.
G. Award the EEOC its costs of this action. JURY TRIAL DEMAND
The EEOC requests a jury trial on all questions of fact raised by its complaint.

Date: February 17, 2005.

Eric S. Dreiband General Counsel
James L. Lee Deputy General Counsel
Gwendolyn Young Reams Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 “L” Street, N.W. Washington, D.C. 20507
4

Dated: _______________, 2005 Dated: _______________, 2005
N:complaint.1.02-17-05

Jean P. Kamp Regional Attorney
Brian C. Tyndall Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Milwaukee District Office 310 West Wisconsin Avenue - Suite 800 Milwaukee, WI 53203-2292 Phone (414) 297-1130 Fax (414) 297-3146 TDD (414) 297-1115

5

 
 E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

2006 WL 3203713 United States District Court,
E.D. Wisconsin.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
V & J FOODS, INC. and V & J Employment Services, Defendants.
No. 05-C-194. | Nov. 3, 2006.
Attorneys and Law Firms
Brian C. Tyndall, Jean P. Kamp, Rosemary J. Fox, Milwaukee, WI, for Plaintiff.
Andre E. Townsel, Law Office of Andre Townsel, Coral D. Pleas, Lanier Law Offices Ltd, Judith A. Williams-Killackey, Pamela M. Ploor, Quarles & Brady LLP, Milwaukee, WI, for Defendants.
Opinion
DECISION AND ORDER
RUDOLPH T. RANDA, Chief Judge.
INTRODUCTION
*1 The Equal Employment Opportunity Commission (“EEOC”) brought this action on behalf of Samekiea Merriweather, age 16, who allegedly suffered sexual harassment and retaliation while employed at the defendants’ Burger King restaurant located at 35th and Vliet in Milwaukee. The defendants, V & J Foods, Inc. and V & J Employment Services (collectively V & J), have moved for summary judgment.
The EEOC presses claims for hostile work environment, quid pro quo or “tangible job action” harassment, and retaliation. The allegations in the complaint, and the evidence presented in opposition to V & J’s motion for summary judgment, set forth a disturbing version of events involving the harassment and termination of a teenage girl by a supervisor more than twice her age. However, because of Merriweather’s failure to fulfill her duty to avoid harm by notifying V & J of her harasser’s conduct, V & J cannot be held accountable under Title VII. Furthermore, EEOC has not produced sufficient

evidence to support its claim that Merriweather was terminated either because she rejected her harasser’s advances or because she complained about the harassment. Therefore, V & J’s motion is granted.

FACTUAL BACKGROUND1

1

Unless otherwise noted, the following facts are

undisputed for purposes of this motion.

I. Commencement of Employment; Orientation and Training Samekiea Merriweather (“Merriweather”) was hired by V & J in late January 2003. (Plaintiff’s Proposed Findings of Fact [“PPFF”], ¶ 73). Born November 15, 1986, she was sixteen at the time. It was her first job outside the home. Merriweather was hired to work at the Burger King located at 35th and Vliet in Milwaukee, store number 3219. (PPFF, ¶ 80). Merriweather hoped to stay at Burger King and move up to management in the future. (PPFF, ¶ 79; Defendant’s Response [“DR”] to PPFF, ¶ 79).
Merriweather was hired by and reported to Anthony Wilkins (“Wilkins”), General Manager at the 35th and Vliet Burger King. (PPFF, ¶¶ 80-81). Wilkins was born October 9, 1967, making him 35 years old at that time. Wilkins knew that Merriweather hoped to move into management, and he told her at various times that she was on the management track. (PPFF, ¶¶ 83-84).
Mary Blake (“Blake”), Training Director at V & J, is responsible for training store managers. New managers and managers in training receive sexual harassment training from Blake. Additionally, all V & J managers receive mandatory sex harassment training each year. V & J’s Management Handbook contains sexual harassment policies.
Hourly employees also receive sexual harassment training during orientation, with orientations occurring weekly. Merriweather completed this orientation, at which time she received an employee handbook. (Defendant’s Proposed Findings of Fact [“DPFF”], ¶ 26). Despite participating in orientation, Merriweather alleges that she never received the appropriate training during orientation. (DPFF, ¶ 5; Plaintiff’s Response [“PR”] to DPFF, ¶ 5). According to Merriweather,
*2 During my orientation when I started at V & J, I did not receive any training regarding sexual harassment. All that was said basically was, ‘sexual harassment, well, you all know what that is.’ There was no video on sexual harassment, and nobody went over the policy in
1

E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

the Orientation Handbook they gave me.
(Merriweather Affidavit, ¶ 29). However, Merriweather admits that she was obligated to review the employee handbook which she received during orientation and which contained the applicable sexual harassment policies. (PR to DPFF, ¶ 26).
The Orientation Handbook, which was received by Merriweather, has a sexual harassment policy statement and a rule regarding sexual harassment. A hotline telephone number to the V & J corporate office is printed on the front cover of the Orientation Handbook. (DPFF, ¶ 7; PR, ¶ 7). This number was also printed on every check stub issued to Merriweather. (DPFF, ¶ 8; PR, ¶ 8). Merriweather claims that her orientation did not include a phone number to call regarding problems at work. However, she does not dispute that the number was on the checks or on the cover of the Orientation Handbook, which she received and was obligated to review. Instead, Merriweather claims that she was not “told about” the number. (PR, ¶¶ 7-8). Employees are told during orientation that if a person’s boss is the alleged harasser, the employee is to call the office or tell the alleged harasser’s boss what is going on. (DPFF, ¶ 66).
II. First Term of Employment and Termination Merriweather first worked at the 35th Street Burger King location from February to early August 2003. According to Merriweather, Wilkins snapped the back of Merriweather’s bra in April or May of 2003. (PPFF, ¶¶ 146-47; DR to PPFF, ¶¶ 146-47). Merriweather was offended by Wilkins’ actions and told him that she did not appreciate it and that he should not do it again. The incident was unappreciated, unwelcome, and made Merriweather uncomfortable.
On more than one occasion, Wilkins offered Merriweather rides home from work in his car. (PPFF, ¶ 151; DR to PPFF, ¶ 151). Merriweather walked to work and lived between 10 and 14 blocks away from the store location. The store is located in an unsafe area of town. (DPFF, ¶ 30). Merriweather considered these offers unwelcome and she told him to stop offering them, although the record indicates that she asked for a ride home on at least one occasion. (DR to PPFF, ¶ 153).
Wilkins also called himself Merriweather’s “daddy” in front of other employees. (PPFF, ¶ 155; DR to PPFF, ¶ 155). Merriweather told Wilkins that he was not her daddy, and that her daddy was in Minnesota. Wilkins scheduled Merriweather to work alone with him on weekend mornings. According to Merriweather, on one of these occasions, Wilkins told her that he wanted her and wanted to date her. (PPFF, ¶ 158; DR to PPFF, ¶ 158). He said that he wanted a young girl, like his father had,

because their bodies were not used up. (PPFF, ¶ 159; DR to PPFF, ¶ 159). He also used these weekend sessions to rub against her as he would reach for things. (PPFF, ¶ 160; DR to PPFF, ¶ 160). He made contact with her in this manner at least twice, inside the coolers and in the kitchen area by the grill. (PPFF, ¶ 161; DR to PPFF, ¶ 161). Wilkins also attempted to kiss Merriweather as he walked by her in the back of the restaurant, and she resisted by moving away. (PPFF, ¶ 162; DR to PPFF, ¶ 162). Wilkins commented on the fit of Merriweather’s uniform in a sexual way and told Merriweather that he had intentionally ordered her shorts small. (PPFF, ¶ 163; DR to PPFF, ¶ 163). Merriweather asked Wilkins to keep his business to himself, told him that she was not interested in him, and that she had a boyfriend. (PPFF, ¶ 167; DR to PPFF, ¶ 167).
*3 Merriweather allegedly told Dolores McBride (“McBride”), one of the shift managers at 35th Street, about Wilkins’ harassment. (PPFF, ¶ 168; DR to PPFF, ¶ 168 [referencing DPFF, ¶¶ 14, 15, 64] ). Merriweather told McBride what Wilkins had been saying and that Wilkins had popped her bra strap. (PPFF, ¶¶ 169-70; DR to PPFF, ¶¶ 169-70). McBride pointed out to Merriweather that Wilkins was showing favoritism to Merriweather and other girls. (PPFF, ¶ 174; DR to PPFF, ¶ 174). According to Merriweather, McBride’s advice was that Tony liked her and that she should either cuss him out or “go with it.” (PPFF, ¶ 176; DR to PPFF, ¶ 176). McBride denies that Merriweather told her anything about Wilkins’ alleged harassment. (DR to PPFF, ¶¶ 168-177).
Merriweather also allegedly told Assistant Manager Vernell Staten (“Staten”) about the bra strap incident. (PPFF, ¶ 178; DR to PPFF, ¶ 178). She told Staten about how Wilkins was always around her and was trying to pick her up from work late at night. (PPFF, ¶ 179; DR to PPFF, ¶ 179). Staten’s response was to giggle and laugh. (PPFF, ¶ 179; DR to PPFF, ¶ 179). Staten denies that Merriweather told her anything about Wilkins’ alleged harassment. (DR to PPFF, ¶¶ 178-80). Finally, Merriweather claims that she told another shift manager named “Denise” the same things she told Staten. (PPFF, ¶ 181; DR to PPFF, ¶ 181). Merriweather is not aware of any action that “Denise” took regarding her complaints. (PPFF, ¶ 182; DR to PPFF, ¶ 182).
Merriweather was terminated by Wilkins sometime in August 2003 for violation of a no-call/no-show policy. (PPFF, ¶ 183; DPFF, ¶ 20). Merriweather had missed work to visit her sick grandmother. (PPFF, ¶ 182; DR to PPFF, ¶ 182). Wilkins asked Merriweather to call into work after she visited her grandmother, which Merriweather failed to do. (DPFF, ¶ 48). An individual can be terminated for one no-call/no-show instance within the employee’s 90-day probationary period. (DPFF, ¶ 56).
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E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

III. Second Term of Employment and Termination After a week or so, Merriweather was re-hired by Wilkins. (PPFF, ¶¶ 188-190; DR to PPFF, ¶¶ 188-90). Wilkins told Merriweather that he was going to “be right” and apologized for what he put her through. (PPFF, ¶ 190). However, according to Merriweather, Wilkins continued to harass her during her second term of employment. One day, he called her into his office and said that he wanted her body. (PPFF, ¶ 192; DR to PPFF, ¶ 192). Wilkins told her he wanted to take her to a hotel to model lingerie. (PPFF, ¶ 193; DR to PPFF, ¶ 193). Wilkins said he would pay her, rent her a car, and she could have whatever she wanted. (PPFF, ¶ 194; DR to PPFF, ¶ 194). Merriweather rejected this proposal by walking out, telling him to keep it to himself, and going back to work. (PPFF, ¶ 196; DR to PPFF, ¶ 196). Wilkins, who had promoted Monique Carson (“Carson”) to shift manager, told Merriweather she would have had Carson’s spot if she had been “acting right.” (PPFF, ¶ 198-99; DR to PPFF, ¶ 199). He also told Merriweather he could have sex better than her boyfriend. (PPFF, ¶ 201; DR to PPFF, ¶ 201).
*4 One night, Merriweather worked until 1 a.m. and Wilkins gave her a ride home. (PPFF, ¶ 202). According to Merriweather, Wilkins complained that he was doing things for her and he was not going to do anything else because she was giving her body away for free to her boyfriend when he was trying to pay her. (PPFF, ¶ 203; DR to PPFF, ¶ 203).
Merriweather also noticed that Wilkins was growing increasingly hostile towards her. (PPFF, ¶ 206; DR to PPFF, ¶ 206). He seemed to be violent and wanted to talk crazy to her, telling her to punch out and “go home.” (PPFF, ¶¶ 207-08; DR to PPFF, ¶¶ 207-08). Wilkins told her she talked “too damn much” and he was going to get rid of her soon. (PPFF, ¶ 209; DR to PPFF, ¶ 209). Carson noticed that Wilkins was acting mean toward Merriweather, criticizing her and nitpicking her performance. (PPFF, ¶ 210; DR to PPFF, ¶ 210).
Merriweather told Carson about Wilkins’ behavior. (PPFF, ¶ 216; DR to PPFF, ¶ 216). Specifically, Merriweather told Carson that Wilkins called himself her daddy, that Wilkins brushed past her on purpose, and that Wilkins asked her to model lingerie at a hotel and offered her money. (PPFF, ¶¶ 217-20; DR to PPFF, ¶¶ 217-20). Merriweather also told Staten about the harassment by Wilkins. (PPFF, ¶ 221; DR to PPFF, ¶ 221). Merriweather asked Staten for a phone number at V & J to call and complain about Wilkins. (PPFF, ¶ 224; DR to PPFF, ¶ 224). Staten gave her a number, but it turned out to be the wrong number, and Staten was unable to give her a correct one. (PPFF, ¶¶ 225-27; DR to PPFF, ¶¶ 225-27).2 No one at V & J’s corporate office was contacted about Wilkins’s alleged harassment of Merriweather either before or after her termination. (DPFF, ¶ 27). Furthermore, Merriweather knew Pete Breitigam (“Breitigam”),

Wilkins’ immediate supervisor, and had seen Breitigam in the store location where she works. Complainant never reported any allegations of sexual harassment to Breitigam. (DPFF, ¶¶ 38, 68).

2

V & J points to evidence in the record suggesting that

Merriweather did not make any complaints of

harassment prior to her second and final termination.

(DR to PPFF, ¶¶ 216-221; DPFF, ¶¶ 14, 15, 24, 33, 34).

This evidence does not directly contradict

Merriweather’s version of events. In any event,

construing the evidence in the light most favorable to

the plaintiff, the Court is obliged to accept

Merriweather’s version.

In September 2003, Merriweather heard from Wilkins that V & J President Valerie Daniels-Carter (“Daniels-Carter”) would be visiting the 35th Street Burger King location. Merriweather helped clean and prepare the restaurant for the visit. She discussed the impending visit with McBride and some others at the restaurant. Merriweather and McBride agreed that Merriweather would talk to Daniels-Carter about Wilkins’ behavior. (PPFF, ¶ 232; DR to PPFF, ¶ 232). According to Wilkins, McBride was his “eyes and ears” on the restaurant floor, and any time something was said to McBride, McBride told Wilkins. (PPFF, ¶ 233; DR to PPFF, ¶ 233).
Merriweather arrived for work at the appropriate time for her scheduled shift the morning of Daniels-Carter’s scheduled visit, only to find that she was no longer on the schedule. Instead, Merriweather was scheduled to work later that day. (DPFF, ¶ 49). Carson told Merriweather that Wilkins had changed the schedule that morning. (PPFF, ¶¶ 237-38; DR to PPFF, ¶¶ 237-38). Merriweather was extremely upset about the schedule change, and she showed the old schedule, which had been placed in the trash, to Staten and Wilkins. She complained to Wilkins that he was not allowed to change the schedule on short notice without informing her.
*5 Merriweather went home and reported the schedule change to her mother. Merriweather did not return to work her scheduled shift later that day. Instead, Merriweather’s mother came to the restaurant and told McBride that Wilkins had been sexually harassing her daughter. McBride relayed the incident to Wilkins. (PPFF, ¶ 255; DR to PPFF, ¶ 255). When she learned of the incident, Merriweather told McBride not to listen to her mother’s complaints. (DPFF, ¶ 16).
Merriweather returned to the restaurant the next payday, which was the following Monday. She was not on the work schedule. Wilkins told Merriweather she was fired because she had brought her mother into her business. (PPFF, ¶ 258; DR to PPFF, ¶ 258). Merriweather accused Wilkins of sexually harassing her and others at the
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E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

restaurant. Wilkins refused to admit these allegations and told Merriweather to get out of his office. Merriweather told Wilkins that she was going to file a sexual harassment charge at EEOC. Wilkins and Staten told Merriweather she did not have to go to EEOC, and that she could have her job back. Merriweather refused the offer.
IV. Post-Termination; EEOC Investigation; Commencement of Lawsuit After her termination, Merriweather, Shawana Hollins, and an unidentified shift manager from 35th and Vliet looked up V & J Vice President Mary Blake’s phone number in the white pages. Merriweather called Blake with the others on the line. They collectively tried to complain to Blake about Wilkins, but Blake would not listen. Blake was annoyed that she had been called at home. No one else at V & J’s corporate office was contacted about Wilkins’s alleged harassment of Merriweather either before or after her termination. (DPFF, ¶ 27).
Merriweather filed her charge of discrimination with EEOC on October 1, 2003, alleging discrimination based on sex and retaliation. Following an investigation, conciliation failed, and the EEOC filed this lawsuit on February 17, 2005.
ANALYSIS
Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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.
EEOC pursues three theories of recovery: (1) hostile work environment; (2) tangible job action (or “quid pro quo”) harassment; and (3) retaliation. The Court will consider each claim separately.
I. HOSTILE WORK ENVIRONMENT The prima facie elements of a hostile work environment

claim are: (1) plaintiff was subjected to unwanted sexual harassment; (2) the harassment was based on her sex; (3) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile or offensive working environment that seriously affected her psychological well-being; and (4) there is a basis for employer liability. See Moser v. Indiana Dep’t of Corr., 406 F.3d 895, 902 (7th Cir.2005). V & J disputes the third and fourth elements.
A. Harassment *6 To evaluate whether a plaintiff’s work environment was hostile, courts examine all of the circumstances, such as the “ ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ “ Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir.1993) (quoting Harris v. Forklift Sys., Inc ., 510 U.S. 17, 23 (1993). Courts evaluate those factors from both an objective and subjective viewpoint: “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 not a Title VII violation.” Id . (quoting Harris, 510 U.S. at 21-22).
The difficult distinction to be made is between conduct which is merely vulgar and conduct which is so severe as to affect the terms and conditions of the victim’s employment. On the actionable side lies “sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures.” Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995). EEOC has provided evidence that Wilkins made uninvited physical contact with Merriweather (snapping her bra, brushing up against her). EEOC has also provided evidence that Wilkins made repeated and uninvited sexual solicitations. According to Merriweather, Wilkins told her that he wanted her and wanted to date her, in particular because she was young and her body was not “used up.” Wilkins also asked Merriweather to go to a motel to model lingerie and to engage in sexual acts, even offering her money to do so. Accepting as true Merriweather’s version of the events, which the Court must do at this stage of the proceedings, this evidence is sufficient to avoid summary judgment. See, e.g., Quantock v. Shared Marketing Services, Inc., 312 F.3d 899 (7th Cir.2002) (outright solicitation of numerous sex acts was more severe than “occasional vulgar banter, tinged with sexual
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E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

innuendo,” and a reasonable jury could find propositions sufficiently severe, as an objective matter, to alter terms of employment).
V & J argues that the conduct was not subjectively hostile because Merriweather voluntarily returned to the same work environment with Wilkins after her first termination. However, evidence in the record suggests that Merriweather decided to return, at least in part, only after receiving assurances that Wilkins would “be right” and discontinue his harassment. Furthermore, Merriweather allegedly made frequent complaints to managers and co-workers, and EEOC has presented evidence that Merriweather found Wilkins’ conduct unwelcome and offensive. Such evidence is more than enough to create a triable issue of fact. See, e.g., Quantock, 312 F.3d at 904 (evidence that Quantock reported the conduct to a supervisor, sought treatment from a psychologist, and was humiliated sufficient to create triable issue on subjectivity).
*7 Finally, the relative ages of Wilkins (35) and Merriweather (16) has great significance. As the Seventh Circuit recently observed in a case where the alleged harasser was twenty-five years old and the victim was sixteen years old, an “employer of teenagers is not in loco parentis, but he acts at his peril if he fails to warn their parents when he knows or should know that their children are at substantial risk of statutory rape by an older, male shift supervisor in circumstances constituting workplace harassment.” Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir.2006). Merriweather’s age, especially in relation to Wilkins’ age, along with Wilkins’ repeated physical contact with Merriweather and his direct solicitation of sex from Merriweather, combine to state an actionable claim of harassment.

based on the allegation that Merriweather was terminated because she refused Wilkins’ advances.
As for the first element, it is undisputed that Merriweather participated in sexual harassment training during her orientation. Even though Merriweather claims that no one explained the materials to her, she acknowledges that she received the orientation handbook and that she was obligated to review it. It is also undisputed that the hotline number to V & J’s corporate office was printed on the cover of the orientation handbook as well as on each and every pay stub Merriweather received. Finally, V & J supervisors, including Wilkins, receive training in sexual harassment during their orientation and annually thereafter. Therefore, V & J exercised reasonable care to prevent harassing behavior at its workplace.
As for the second element, it is undisputed that Merriweather failed to make any formal complaints about Wilkins to V & J’s corporate office, in accordance with V & J’s formal complaint procedures, at any time prior to her termination. “Since an employer is not omniscient, it must have notice or knowledge of the harassment before it can be held liable.” Durkin v. City of Chicago, 341 F.3d 606, 612 (7th Cir.2003). EEOC presents evidence that Merriweather made complaints to other individuals at 35th and Vliet, including shift and assistant managers like McBride, Staten, and Carson. While it is true that compliance with a designated complaint procedure is not the sole means by which an employee can fulfill her duty, the affirmative defense still applies if the plaintiff employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765 (emphasis added).

B. Employer Liability Employers are vicariously liable for hostile environment harassment perpetrated by a supervisor, and there is no doubt or dispute that Wilkins was Merriweather’s supervisor. See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998). Where a plaintiff has suffered no tangible employment action, which the Court will presume for this portion of the analysis,3 the employer is entitled to establish an affirmative defense as follows: (1) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765.

3

The quid pro quo claim, discussed in the next section, is

*8 The complaints made to Wilkins’ subordinates were insufficient to notify V & J that Wilkins was harassing Merriweather. Knowledge of Wilkins’ behavior cannot be imputed to V & J based on complaints made to individuals who worked below Wilkins. Those individuals were not in a position to initiate an investigation or to discipline Wilkins in any way. As the Supreme Court noted in Faragher, Title VII’s “ ‘primary objective,’ like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm.” Faragher, 524 U.S. at 806 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (emphasis added)). In fact, the procedures in place, as noted by the EEOC, did not give supervisors any direction on how to act when a supervisor was accused of harassment. The responsibility for reporting such conduct to V & J is allocated to its hourly employees. (DPFF, ¶ 66). Therefore, Merriweather’s complaints cannot establish employer liability because they were incapable of providing V & J with the knowledge and the means to
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E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

avoid future harassment.4 Such a holding is consistent with “the general theory of damages, that a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize damages’ that result from violations of the statute.” Faragher at 806 (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n. 15 (1982)).

4

Loughman v. Malnati Organization, Inc., 395 F.3d 404

(7th Cir.2005), cited by EEOC, is distinguishable. In

Loughman, a complaint made to a shift manager,

instead of to “upper management” as specified by the

complaint procedure, was held sufficient to give the

company notice of the harassing behavior. However,

Loughman involved coworker harassment, not

supervisor harassment. Loughman, 395 F.3d at 408.

Therefore, the shift manager in Loughman was in a

position to initiate an investigation, and knowledge

could be imputed to the company.

Furthermore, while Merriweather disputes being told during her orientation that she was supposed to complain about supervisor harassment to the corporate office (or to someone superior to Wilkins), the evidence suggests that Merriweather knew that this was her responsibility. Merriweather devised a plan to talk to V & J President Daniels-Carter the day she was terminated. Also, when Merriweather complained to Staten, Staten referred Merriweather to a number for the corporate office. It does not matter that the number ended up being incorrect. A reasonable person in Merriweather’s position should have pursued the matter further and discovered the correct number. In any event, what matters most is that the complaint did not reach V & J, and therefore V & J did not have notice of Wilkins’ harassing behavior. Merriweather had constructive and actual knowledge that her complaint was supposed to go to V & J’s corporate office, yet Merriweather failed to initiate such a complaint until after she left V & J.
Therefore, while EEOC has presented sufficient evidence to demonstrate that Merriweather was subjected to a legally actionable hostile work environment, V & J avoids liability under the affirmative defense set forth in Ellerth/Faragher.

II. QUID PRO QUO SEXUAL HARASSMENT EEOC also proceeds under a quid pro quo theory of sexual harassment-that Merriweather was terminated because she rebuffed Wilkins’ pursuit of a sexual relationship. A prima facie claim for quid pro quo sexual harassment involves the following elements: (1) plaintiff is a member of a protected group; (2) the sexual advances were unwelcome; (3) the harassment was sexually motivated; (4) plaintiff’s reaction to the advances affected

a tangible aspect of her employment; and (5) respondeat superior has been established. See Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir.1996); Crosson v. Caremark, Inc., 212 F.Supp.2d 875, 881 (N.D.Ill.2002). While the Supreme Court has downplayed the traditional distinction between quid pro quo and hostile work environment claims under Title VII, the distinction remains relevant in determining whether the plaintiff can establish a prima facie case. See Ellerth, 524 U.S. at 753; see also Crosson, 212 F.Supp.2d at 882 n. 4.
*9 EEOC presents no direct evidence that Merriweather was terminated because she spurned or rejected Wilkins’ sexual advances. See Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir.2003) (citing Walker v. Glickman, 241 F.3d 884, 888 (7th Cir.2001)) (Direct evidence of discrimination is evidence that, “if believed by the trier of fact would prove [discrimination] ‘without reliance on inference or presumption’ ”). Instead, EEOC relies on circumstantial evidence. Circumstantial evidence can be used to “infer intentional discrimination by the decision-maker.” Rogers, 320 F.3d at 753. The most common type of such evidence consists of “suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn.” Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir.1994). Taken separately or in combination, circumstantial evidence can compose a “convincing mosaic of discrimination against the plaintiff.” Id. at 737.
EEOC’s theory is that Wilkins was “messing with” Merriweather’s schedule in an effort to upset her. Specifically, on the day Merriweather was fired (for the second time), Wilkins altered Merriweather’s schedule at the last minute because he somehow knew that Merriweather would get upset and leave work, thus giving Wilkins the pretext he needed to fire her. In other words, according to EEOC, Wilkins altered Merriweather’s schedule because he was upset Merriweather refused to have sex with him, and Merriweather’s anticipated reaction to the schedule change would give Wilkins reason to fire her.
Even assuming that Wilkins changed Merriweather’s schedule because Merriweather would not have sex with him, this does not undermine the evidence that Wilkins terminated Merriweather because of her insubordination and failure to show-up for her scheduled work shift. The termination is the adverse employment action, not the schedule change. In other words, Wilkins had a legitimate, non-discriminatory justification for terminating Merriweather’s employment, unrelated to any animus regarding Merriweather’s refusal to have sex with him. Wilkins could not know, with absolute certainty, that Merriweather would react in the manner that she reacted, thus giving Wilkins cause to fire her. If Merriweather had
6

E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

returned to work later that day, or at a minimum provided some sort of excuse or coverage for her shift, Wilkins would not have had cause to fire her. But Merriweather did not do any of these things, and her termination was justified.
In sum, EEOC has failed to provide evidence, direct or circumstantial, which links Merriweather’s termination to Merriweather’s refusal to engage in sexual relations with Wilkins.5 V & J’s motion for summary judgment is granted on this claim.

5

To the extent that EEOC pursues a “Quid Pro Quo”

theory with regard to Merriweather’s first termination,

EEOC fails to establish the appropriate causal link

between Merriweather’s rejection of Wilkins’ advances

and her termination. Merriweather was terminated for a

no-call/no-show violation.

III. RETALIATION
A. Direct Method To state a retaliation claim under the “direct method,” EEOC must produce evidence of: (1) a statutorily protected activity; (2) an adverse action; and (3) a causal connection between the two. See Haywood v. Lucent Techs., 323 F.3d 524, 531 (7th Cir.2003).
1. Protected Activities *10 It is undisputed that Merriweather did not file an EEOC complaint until after her termination. Generally, a plaintiff must “engage in statutorily protected activity before an employer can retaliate against her for engaging in statutorily protected activity.... An employer cannot retaliate if there is nothing to retaliate against.” Durkin, 341 F.3d at 614-15. Nonetheless, EEOC argues that Merriweather’s numerous complaints to various shift and assistant managers at the restaurant qualify as “statutorily protected activities.” While it is true that an “official complaint with an employer may constitute statutorily protected activity under Title VII,” see Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir.1997), Merriweather never filed an official complaint through V & J’s complaint mechanism. The Seventh Circuit has yet to resolve whether informal complaints constitute protected expression when a formal complaint procedure is in place. See, e.g., Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 508 (7th Cir.2004) (declining to resolve “whether Rhodes engaged in protected activity because she failed to comply with IDOT’s request to formally complain in writing”); Krause v. City of LaCrosse, 246 F.3d 995, 1000 (7th Cir.2001) (noting Seventh Circuit has yet to rule on whether informal complaints constitute

protected expression). While the Seventh Circuit has suggested, albeit in dicta, that informal complaints are not “protected activity,” see Durkin, 341 F.3d at 615 (while the record is “replete with examples of her complaints ... [plaintiff] did not utilize the City’s policy for reporting harassment because she believed it would accomplish nothing”), other courts have held that such complaints are protected. See, e.g., Pastran v. K-Mart Corp., 210 F.3d 1201 (10th Cir.2001); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 495, 506 (9th Cir.2000); Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989); Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir.1981); see also Walls v. Turano Baking Co., 221 F.Supp.2d 924, 931 (N.D.Ill.1998).
EEOC also argues that Wilkins retaliated against Merriweather because he knew or suspected that Merriweather was going to talk to V & J upper management (specifically, V & J President Valerie Daniels-Carter) and complain about Wilkins’ harassment on the day of the last-minute schedule change. This scenario at least arguably states a claim for “anticipatory” or “preemptive” retaliation. See, e.g., Johnson v. ITT Aerospace/Communications, 272 F.3d 498, 500-01 (7th Cir.2001); Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir.1993) (action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact). Therefore, the Court will presume that Merriweather’s various alleged informal complaints, along with her alleged intention to complain to V & J officials on the day of the schedule change, constitute “protected activities” for purposes of a retaliation claim.
*11 EEOC further argues that Wilkins’ alleged statement that he was firing Merriweather because she “brought her mother into her business at V & J” is direct evidence of discrimination. (PPFF, ¶ 258). According to EEOC, this was a “direct reference to Merriweather’s complaint about sexual harassment, as conveyed to Wilkins by McBride after Merriweather’s mom visited the restaurant.” (EEOC’s Brief in Opposition, p. 16, citing PPFF, ¶ 254-55). The Court is unaware of any case which stretches the concept of “protected activity” to include complaints made to family members who are not co-workers. The Court declines the invitation to make such a holding.
More interesting is the claim that Wilkins terminated Merriweather because of her mother’s complaint to McBride. The statute, on its face, does not cover a claim that an employee (Merriweather) was terminated because a third-party (Merriweather’s mother) complained about the employee (Merriweather) being harassed. The relevant provision states that it “shall be an unlawful employment practice for an employer to discriminate
7

E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added).
Most courts follow the plain language of the statute and hold that a claim for “third-party” retaliation is not actionable. See, e.g., Fogleman v. Mercy Hospital, Inc., 283 F.3d 561 (3rd Cir.), cert. denied, 537 U.S. 824 (2002) (addressing nearly identical provisions of other statutes and noting Title VII rules apply); Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir.1998); Holt v. JTM Industries, Inc., 89 F.3d 1224 (5th Cir.1996), cert. denied, 520 U.S. 1229 (1997); Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123 (D .Kan.2002); Thompson v. North American Stainless, 435 F.Supp.2d 633 (E.D.Ky.2006); Singh v. Green Thumb Landscaping, Inc., 390 F.Supp.2d 1129 (M.D.Fla.2005). However, at least two courts have broadly interpreted the language of the statute to encompass claims of retaliation for complaints made on behalf of the plaintiff, which is the situation in the case at bar. See EEOC v. Ohio Edison Co., 7 F.3d 541, 545-46 (6th Cir.1993) (the words in the statute should be broadly construed to include a claim in which an employee, or his representative, has opposed any practice made an unlawful employment practice); Baird v. Rose, 192 F.3d 462, 471 n. 10 (4th Cir.1999) (retaliation for mother’s complaint actionable where mother was acting on plaintiff’s behalf).
While there is no Seventh Circuit precedent directly on point, the Court agrees with the cases that follow the plain language of the statute. The language itself represents a clear expression of congressional intent. “Read literally, the statutes are unambiguous-indeed, it is hard to imagine a clearer way of specifying that the individual who was discriminated against must also be the individual who engaged in protected activity.” Fogleman, 283 F.3d at 568. For “whatever reason, [Congress] chose to write the statute to require that the person retaliated against also be the person who engaged in the protected activity.” Higgins v. TJX Companies, Inc., 328 F.Supp.2d 122, 124 (D.Me.2004). While the policy behind Title VII favors liberal construction, any conflict with the plain meaning of the statute should be resolved in favor of the plain meaning. See Fogleman, 283 F.3d at 569; Singh at 1138.
*12 Furthermore, construing the statute according to its plain meaning would not lead to absurd results or undermine the legislative intent. Congress may have thought that barring third-party retaliation was unnecessary or that permitting third-party claims would open the door to frivolous lawsuits. See, e.g., Higgins, 328 F.Supp.2d at 124 n. 3; see also Singh, 390 F.Supp.2d at 1138 (Congress may have feared that expanding the class of potential anti-discrimination plaintiffs beyond those who engaged in protected activity would lead to frivolous law suits and would impinge upon an

employer’s ability to fire at-will employees).
Therefore, Merriweather’s alleged complaints to her co-workers, and her alleged “plan” to complain to V & J upper management, are protected activities for purposes of the retaliation claim. However, Merriweather’s complaint to her mother, and her mother’s complaint to McBride on her behalf, are not protected activities.6

6

Even if the complaint made by Merriweather’s mother

could be considered “protected activity,” the evidence

presented by EEOC that Wilkins was terminating

Merriweather because she brought her mother “into her

business” is not direct evidence of discrimination. The

evidence more accurately suggests that Wilkins was

upset that Merriweather’s mother was disrupting the

workplace by complaining on her behalf, a legitimate

non-discriminatory justification for the termination.

2. Causal Connection EEOC attempts to state a circumstantial case of discrimination with respect to the retaliation claim. However, EEOC provides only speculation as to whether Wilkins actually knew about Merriweather’s alleged complaints7 or her alleged “plan” to talk to Daniels-Carter on the day of her schedule change. “It is not sufficient that [the employer] could or even should have known about [the plaintiff’s] complaints; [he] must have had actual knowledge of the complaints for [his] decisions to be retaliatory.” Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir.2004). EEOC’s repeated assertion that McBride knew about the complaints and the plan, and that McBride was Wilkins’ “eyes and ears” on the floor who told him everything, fails to support a reasonable inference that Wilkins knew about Merriweather’s alleged protected activities. This evidence is purely speculative because it was Wilkins who testified that McBride “told him everything,” not the other way around. (PPFF, ¶ 233; DR to PPFF, ¶ 233). Wilkins has no way of knowing if McBride really “told him everything,” and McBride never confirmed or testified that she told Wilkins everything that happened on the restaurant floor. In other words, Wilkins lacks personal knowledge as to whether McBride actually told him “everything,” and it therefore cannot be presumed that McBride told Wilkins about Merriweather’s complaints. See, e.g., Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 713 (7th Cir.2002) (To the extent that Mr. Martin testified as to his “understanding,” he lacked personal knowledge as to the punishment ordered, so the evidence is inadmissible and cannot create a factual issue for purposes of summary judgment).

7

While there is evidence that Wilkins knew that

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E.E.O.C. v. V & J Foods, Inc., Not Reported in F.Supp.2d (2006)

Merriweather’s mother complained about harassment, this does not support the inference that Wilkins knew about any other complaints. Furthermore, as noted above, a complaint to a family member (or a complaint by a family member) cannot be considered a protected activity.
Therefore, while Merriweather claims that she complained to McBride about Wilkins’ harassment, McBride denies that she had any such conversations with Merriweather. (DR to PPFF, ¶ 51). Even taking Merriweather at her word, there is no concrete evidence to support the inference that McBride told Wilkins about Merriweather’s complaints. “Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.” Tyler v. Runyon, 70 F.3d 458, 469 (7th Cir.1995) (quoting Hedberg v. Indiana Bell. Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir.1995)).
*13 Therefore, because EEOC has failed to provide evidence to establish that Wilkins knew about Merriweather’s complaints, the retaliation claim fails as a matter of law.
B. Indirect Method To proceed under the “indirect method,” EEOC must establish (1) plaintiff engaged in statutorily protected activity; (2) she was performing her job according to V & J’s legitimate expectations; (3) despite her satisfactory performance, she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1031 (7th Cir.2004).
EEOC fails to establish the fourth element of the prima facie case-that she was treated less favorably than similarly situated employees. EEOC offers Shawana Hollins and Vernell Staten as comparators. (PPFF, ¶¶ 273-276). To be similarly situated to the plaintiff, an individual must be “directly comparable to [the plaintiff] in all material respects.” Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686, 692 (7th Cir.2005). Courts consider “all of the relevant factors,” including whether the employees (1) held the same job description; (2) were subject to the same standards; (3) were subordinate to the same supervisor; and (4) had comparable experience, education, and other qualifications-provided the employer considered the latter factors in making the personnel decision. Id. at 692-93. Staten is not similarly situated did not hold the same job description as Merriweather. Staten was an assistant manager, while Merriweather never advanced to the management level. (PPFF, ¶¶ 86, 110, 276). It appears that Hollins and Merriweather held the

same job description as hourly employees below the management level. However, EEOC still fails to meet its burden of demonstrating that they are directly comparable. While Hollins has a varied disciplinary history that includes discipline for insubordination and a variety of no-call/no-shows, there is no indication that either Hollins or Staten engaged in the same behavior that resulted in Merriweather’s termination-insubordination and the abandonment of a scheduled shift.
Therefore, EEOC’s retaliation claim fails under the indirect method of proof.
CONCLUSION
EEOC has stated an actionable claim of hostile work environment with respect to Wilkins’ harassment of Merriweather at the 35th and Vliet store. However, V & J cannot be held liable for Wilkins’ conduct under the affirmative defense set forth in Ellerth/Faragher. Furthermore, the quid pro quo claim is insufficient as a matter of law because V & J had a legitimate non-discriminatory justification for Merriweather’s termination and EEOC has failed to produce evidence to support the inference that Merriweather was terminated because she rebuffed Wilkins’ advances. Finally, the retaliation claim must be dismissed because EEOC has failed to produce evidence to establish that Wilkins was aware of any Merriweather’s complaints.
*14 NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
1. V & J’s motion for leave to supplement the record [Docket No. 66] is GRANTED;
2. EEOC’s motion to supplement the record [Docket No. 68] is GRANTED;
3. V & J’s motion for summary judgment [Docket Nos. 40, 44] is GRANTED;
4. V & J’s motion for a protective order [Docket No. 30] is DENIED as moot;
5. EEOC’s motion to compel [Docket No. 24] is DENIED as moot; and
6. This matter is DISMISSED.
Parallel Citations
88 Empl. Prac. Dec. P 42,634
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 E.E.O.C. v. V&J Foods, Inc., Not Reported in F.Supp.2d (2006)

2006 WL 2947474 Only the Westlaw citation is currently available.
United States District Court, E.D. Wisconsin.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
V & J FOODS, INC., and V & J Employment Services, Defendants.
No. 05-C-194. | Oct. 16, 2006.
Attorneys and Law Firms
Brian C. Tyndall, Jean P. Kamp, Rosemary J. Fox, United States Equal Employment Opportunity Commission, Milwaukee District Office, Milwaukee, WI, for Plaintiff.
Andre E. Townsel, Law Office of Andre Townsel, Coral D. Pleas, Lanier Law Offices Ltd, Judith A. Williams-Killackey, Pamela M. Ploor, Quarles & Brady LLP, Milwaukee, WI, for Defendants.
Opinion

DECISION AND ORDER

RUDOLPH T. RANDA, Chief Judge.
*1 This matter relates to allegations of sexual harassment and hostile work environment by Ms. Samekiea Merriweather against Anthony Wilkins, General Manager at a Burger King owned and operated by the defendants (collectively V & J). The EEOC has brought a motion to compel discovery under Civil Local Rule 7.4.1 EEOC requests an order compelling V & J to provide: (1) complete answers to EEOC’s Third Set of Interrogatories; (2) complete answers to EEOC’s Interrogatories 15 and 16; and (3) all documents responsive to EEOC’s Document Requests 24, 25(b), 28, and 29. The Court will consider each discovery request separately or in combination, as appropriate.

1

V & J’s motion for summary judgment is fully briefed

and ready for decision by the Court. This decision does

not affect the motion for summary judgment.

Third Set of Interrogatories; Interrogatories 15 and 16: V & J notes that it has already provided answers to EEOC’s Third Set of Interrogatories. See Attachment A, Defendant’s Response to Plaintiff’s Motion to Compel.

Further, V & J has supplemented its responses to Interrogatories 15 and 16. See Defendant’s Response to Plaintiff’s Motion to Compel. The motion to compel DENIED as moot with respect to these items.
Document Request 24: EEOC requests documents relating to sexual harassment training. V & J indicates that it is in the process of transferring responsive items, the logistics of which are being resolved “expeditiously.” EEOC’s motion is GRANTED to the extent necessary to ensure delivery of these items.
Document Requests 25(b) and 28: EEOC’s Document Request 25(b) requests all documents describing the health, dental, vision, and life insurance available to hourly employees. Document Request 28 requests all documents which describe the employment benefits which are the subject of interrogatory 15, which in turn requests the cost to V & J of providing health insurance to an hourly employee. In response, V & J argues that (1) Ms. Merriweather, as an hourly employee, never elected health insurance coverage; and (2) even if she did, the costs of such coverage is borne by the hourly employee, not V & J. Therefore, this information is not relevant to Merriweather’s damages as an hourly employee. EEOC’s motion is DENIED with respect to these document requests.
Document Request 29: Document Request 29 requests all document which describe the employment benefits described in interrogatory 16, which requests the cost of medical, dental, disability, life, 401(k), and vacation benefits provided to assistant managers, as well as the annual cost to V & J from 2003 to the present. V & J objects because Merriweather was an hourly employee and there is no evidence to suggest she would be promoted to a position to receive these benefits in the foreseeable future. The Court is not in a position to evaluate Merriweather’s possible entitlement to front pay. Nonetheless, such information might be relevant to this claim. See, e.g., Vernon v. Port Authority of New York and New Jersey, 220 F.Supp.2d 223, 236-37 (S.D.N.Y.2002) (front pay award includes difference between current salary and salary that would have been earned if promoted, including pension benefits would have earned at higher salary).
*2 V & J also argues that the request imposes an undue burden given the level of turnover and job reclassifications in the quick serve food industry. Also, V & J represents that costs are not segregated by class of “assistant managers.” V & J has not demonstrated that any alleged burden outweighs its likely benefit. See Fed.R.Civ.P. 26(b)(2)(iii). EEOC’s motion to compel is GRANTED with respect to Document Request 29.
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E.E.O.C. v. V&J Foods, Inc., Not Reported in F.Supp.2d (2006)

NOW, THEREFORE, BASED ON THE

FOREGOING, IT IS HEREBY ORDERED THAT

	  

EEOC’s Rule 7.4 motion to compel [Docket # 62] is

GRANTED IN PART and DENIED IN PART.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

V&J FOODS, INC. and

)

V&J EMPLOYMENT SERVICES, INC.

)

)

Defendants.

)

Case No. 05-0194
CONSENT DECREE AND ORDER

This action was filed by the Equal Employment Opportunity Commission ("Commission") against defendants V&J Foods, Inc. and V&J Employment Services, Inc. ("V&J") pursuant to Title VII of the Civil Rights Act of 1964, as amended, to correct unlawful employment practices on the basis of sex and retaliation, and to provide appropriate relief to Samekiea Merriweather. The EEOC alleged Ms. Merriweather was adversely affected by such practices when one manager at one of defendant's Burger King restaurants subjected her to sexual harassment, created a hostile working environment, and discharged her because of her refusal to submit to the harassment and because of her opposition to such unlawful employment
practices. Defendants V&J Foods and V&J Employment Services, Inc. denied the allegations
and asserted, in part, that Ms. Merriweather failed to take advantage of opportunities to prevent, mitigate, and/or correct any conduct, problem or complaint, including without limitation failing to take advantage of opportunities and procedures provided by defendants.
The Commission and Defendants (the "parties") have agreed to resolve this matter pursuant to this Consent Decree, without continuing to trial on the merits of the Commission's claims.

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NOW, THEREFORE, the Court having carefully examined the terms and provisions of this Consent Decree, and based on the pleadings, record and stipulations of the parties, it is ORDERED, ADJUDGED, AND DECREED THAT: I. This Court has jurisdiction over the subject matter of this action and over the parties for
purposes of entering and enforcing this Decree. 2. The terms of this Decree are adequate, fair, reasonable, equitable and just. 3. This Decree conforms with the Federal Rules of Civil Procedure and is not in derogation
of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII, and will be in the best interests of the parties, those for whom EEOC seeks relief, and the public. 4. This Decree resolves all claims the EEOC brought or could have brought arising out of the Charge of Discrimination filed by Sarnekiea Merriweather against V&J, EEOC Charge No. 260-2004-00017C. The parties further agree that this Decree does not resolve any other claims. INJUNCTIVE RELIEF 1. Injunction. V&J is hereby permanently enjoined from engaging in any employment practice that permits or condones sexual harassment. V&J is also hereby pem1anently enjoined from engaging in discrimination or retaliation of any kind against any person because of opposition to any practice made unlawful under Title VII, or because of the filing of a charge, the giving of testimony or assistance, or the participation in any investigation, proceeding or hearing under Title VII.
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2. Dissemination of Policy Statement. V&J agrees to issue and disseminate to all its employees who work at or manage its
Milwaukee-area Burger King restaurants, within 30 days of execution of this Consent Decree, an effective policy in regard to sexual harassment and retaliation, including a clear and effective complaint procedure, a procedure for proper and effective investigations, and a statement setting forth clearly and openly the discipline V&J will impose on offenders. Once each year for the next two (2) years, V&J shall re-issue the policy statement on an annual basis, to all its employees. 3. Training.
V&J shall provide training in regard to the policy described in the preceding paragraph, to all its employees who work at or manage its Milwaukee-area Burger King restaurants, once per year for the next two (2) years from the date of entry of this Consent Decree and Order, and shall annually provide the EEOC's Milwaukee Area Office with a certification of training indicating the date and description of the training provided. Such training shall be conducted by one or more outside trainers chosen by V&J with the consent of the Commission (which shall not be unreasonably withheld), and shall include training in regard to sexual harassment, complaint procedures, investigation procedures, discipline, and retaliation. Employees first hired after the training has been provided for that calendar year need not receive the outside training until the next year's session, but shall at orientation receive the substance of the training from V&J personnel.

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4. Posting. V&J shall place a public notice, in a conspicuous place visible to all employees, at all of
its Milwaukee-area Burger King locations, for a period of two (2) years from the date of entry of
this Consent Decree and Order. The notice shall be in a form attached as Exhibit A, and shall be
captioned "Notice To All Employees," which indicates, in part, that V&J's owners personally do and did not condone any discriminatory practices and there was no claim that they were aware of the alleged harassment. 5. Certification to Commission.
Upon each annual compliance with the foregoing provisions in paragraphs 2 through 4 of this Injunctive Relief Section, V&J shall promptly certifY to the undersigned counsel for the Commission that it has complied with them. 6. Reporting.
V&J shall report in writing to the EEOC's Milwaukee Area Office, every six months starting with June 30, 2008 and continuing for two (2) years from the date of entry of this Consent Decree and Order, all complaints of sexual harassment or retaliation arising at V&J, with details including the specific facts of the complaint, the persons involved, and the actions
taken by V&J to promptly and effectively deal with the complaint.
7. Record Retention. For two (2) years from the entry of this Consent Decree and Order, V&J shall maintain
all records pertaining to the complaints reported in paragraph 6 hereof. V&J shall also maintain
records of its training conducted in paragraph 3, including lists of those trained. V&J shall make such records available for inspection by the Commission pursuant to Paragraph 8 hereof.
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8. Right of Entry for Inspection. The Commission shall have the right, on 72 hours' written notice to V&J's Counsel, to
enter upon V&J' s offices and inspect any relevant documents or records for the purpose of detcm1ining V&J's compliance with this Consent Decree and Order. MONETARY RELIEF
V&J agrees to pay $42,500, less appropriate deductions on $25,476.00, the portion of this
sum which is not awarded as compensatory or punitive damages, to Ms. Merriweather, in the
following manner: 50% of the total sum on or before June 30, 2008, and 50% on January 2, 2009. V &J shall pay its own share of all applicable withholdings, which shall not reduce the award. V&J shall mail the payment to Ms. Men·iweather at her home address, which shall be provided to V &J, and shall simultaneously provide a copy of the payment check(s) to the

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 180 I "L" Street, N. W. Washington, D.C. 20507
RONALD S. COOPER General Counsel
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08/10/2008 14:10 IFA:~
JAMES LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Milwaukee Area Office 310 W. Wisconsin Ave., Suite 800 Milwaukee, WI 53203-2292 Phone (414) 297-1130
s/John C. Hendrickson JOHN C. HENDRlCKSON Regional Attorney
s/Jean P. Kamp JEAN P.KAMP Associate Regional Attorney
s/Brian C. Tyndall BRlAN C TYNDALL Senior Trial Attorney
V&J FOODS, INC.
By: s/Andre E. Townsel Attorney for Defendants
V&J EMPLOYMENT SERVICES, INC.
By: s/Andre E. Townsel Attorney for Defendants
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Date: June 4, 2008 Date: June 4, 2008 Date: June 4, 2008
Date: June 4, 2008 Date: June 4, 2008

08/10/2008 14:10 IFA:~

• Jacki

~ 007/008

7

08/10/2008 14:10 IFAX

• Jacki

li!i 008/008

Exhibit A
NOTICE TO ALL EMPLOYEES
This notice is being posted by order of the Court in a lawsuit brought against V&J Foods, Inc. and V&J Employment Services, Inc. ("V&J") by the U.S. Equal Employment Opportunity Commission ("EEOC"). The EEOC alleged that V&J violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), Title I of the Civil Rights Act of 1991, and 42 U.S.C. § 198la, stating that one manager at one ofV&J's Burger King restaurants
subjected a V&J employee to sexual harassment, created a hostile working environment, and discharged her because of her refusal to submit to the harassment and because of her opposition
to such unlawful employment practices. V& J denied the EEOC's allegations and asserted other
defenses.
This case was resolved by a consent decree, a court order agreed to by the parties without a trial on the merits of the EEOC's claims or V&J's defenses.
V&J' s owners personally do and did not condone any discriminatory practices, and there was no claim that they were aware of the alleged harassment. V&J has further agreed not to discriminate against any employee by permitting or condoning sexual harassment, or by pennitting retaliation against any person for opposing an unlawful employment practice or for participating in an investigation of an unlawful employment practice.
Should you have any complaints of discrimination for sexual harassment or for retaliation for opposing an unlawful employment practice or for participating in an investigation of an unlawful employment practice, V&J requests that you contact the Human Resource Department at 414-365-9003 in accordance with its harassment policy. The local EEOC office in Milwaukee is also able to assist. EEOC charges no fee for its services, and has employees who speak languages other than English. EEOC's offices are accessible to individuals with disabilities.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
Dated: _ _ _ _ _ __

8

 
 507 F.3d 575 (2007)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.
V & J FOODS, INC., et al., Defendants-Appellees.
No. 07-1009.
United States Court of Appeals, Seventh Circuit.
Argued September 12, 2007. Decided November 7, 2007.
576*576 Jennifer S. Goldstein (argued), Equal Employment Opportunity Commission, Washington, DC, for Plaintiff-Appellant.
Thomas P. Krukowski (argued), Krukowski & Costello, Milwaukee, WI, for DefendantsAppellees.
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
577*577 POSNER, Circuit Judge.
The district court granted summary judgment for the defendant, the owner of a Burger King restaurant in Milwaukee, in this suit by the EEOC charging two forms of sex discrimination in violation of Title VII: the creation of a hostile working environment for women, and retaliation for opposing such discrimination.
The defendant had hired a high-school student named Samekiea Merriweather to work at the restaurant after school and on weekends. She had recently turned 16 and this was her first paying job. The general manager of the restaurant was a 35-year-old bachelor named Tony Wilkins. Wilkins was having sexual relations with several of the female employees at the restaurant and he began making suggestive comments to Merriweather. He would also rub against her and try to kiss her. She rebuffed his advances but he persisted. She felt as though she were working with "a stalker all around." He told her he wanted "a young girl" because of "their body. You know, it's not all used up." Later he said "I want to take you to the hotel. You can have anything you want. I'll pay you what, 5-, $600." When she said she wasn't interested in him, that she had a boyfriend, he told her that "he was tired of doing things for me and he [wasn't] going to do [anything] else for me because I'm sitting here giving my body away for free when he's trying to pay me." At this point he turned hostile to her. Eventually he fired her, ostensibly though implausibly because she missed an

afternoon of work (she had been scheduled to work that morning, and he altered the work schedule without notifying her). But later he rehired her, and the harassment continued.
She complained repeatedly to the shift supervisors (junior managers in fast-food restaurants, Doe v. Oberweis Dairy, 456 F.3d 704, 717 (7th Cir.2006)), and to the assistant manager of the restaurant (Wilkins's number 2), all to no avail. She asked the assistant manager for a phone number that she could call to complain about sexual harassment. He told her he didn't know whether he could give her the phone number and that he wasn't even sure there was such a number. He did give her a number eventually, but it was a wrong number and when she pointed this out to him he said, "Well, I don't know then."
Merriweather's mother came to the restaurant and complained to a shift supervisor named McBride about Wilkins's sexual harassment of her daughter. Wilkins was not present. McBride professed ignorance of the matter and reported the mother's intervention to Wilkins as soon as he returned — whereupon he fired Merriweather, this time for good, on the ground that she had involved her mother in the matter rather than handling it "like a lady."
We were astonished when V & J's lawyer told us at argument that Wilkins's conduct toward Merriweather was not sexual harassment, though in his brief he had acknowledged that it was. We hope V & J, the owner of numerous fast-food restaurants, knows better. The main grounds on which the district court dismissed the suit were not that Merriweather had not been harassed on grounds of sex but, first, that she had failed to invoke the company's procedure for complaining about harassment, and, second, that firing her because of her mother's intervention was not actionable retaliation for "oppos[ing] any practice made an unlawful employment practice" by Title VII, 42 U.S.C. § 2000e-3(a), because it was "thirdparty retaliation." The term refers confusingly to retaliation against the victim of discrimination because someone else opposed the discrimination.
578*578 The judge also thought that the plaintiff had failed to raise a triable issue of whether the reason given for her first discharge — her failure to show up in the afternoon after her work schedule was changed without her being notified — was spurious and whether her second discharge was partly in retaliation for her own opposition to Wilkins's misconduct, as distinct from her mother's opposition. These two determinations were simply wrong. The evidence was conflicting; the judge made the mistake of trying to resolve genuine issues of material fact on summary judgment.
With regard to the first of the two main grounds of the judge's decision, an employer can avoid liability under Title VII for harassment (on a ground, such as sex, that constitutes a form of discrimination that the statute forbids) of one of his employees by another by creating a reasonable mechanism by which the victim of the harassment can complain to the company and get relief but which the victim failed to activate. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). If the harasser is a supervisor and the harassment takes the form of firing or taking other employment action against the victim, the employer's liability is strict, id.; Faragher v. City of Boca Raton, supra, 524 U.S. at 808, 118 S.Ct. 2275, and that principle is applicable to the two firings of which Merriweather complains. The presence or absence of an adequate complaint machinery is relevant only to her claim for damages for the harassment that she suffered

while she was employed by the defendant, and not to her claim of having been unlawfully fired.
The mechanism must be reasonable and what is reasonable depends on "the employment circumstances," id. at 765, 118 S.Ct. 2257; see Wilson v. Tulsa Junior College, 164 F.3d 534, 541-42 (10th Cir.1998), and therefore, among other things, on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable. In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet. V & J's lawyer surprised us a second time by telling us that an employee's age and education are irrelevant to the adequacy of the grievance machinery established by the employer — if it is a machinery within the competence of a 40-year-old college graduate to operate, it will do for a 16-year-old girl in her first paying job. An employer is not required to tailor its complaint procedures to the competence of each individual employee. But it is part of V & J's business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager. Cf. Doe v. Oberweis Dairy, supra, 456 F.3d at 717. Here as elsewhere in the law the known vulnerability of a protected class has legal significance. Cf. Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 774 (7th Cir.2007); United States v. Grimes, 173 F.3d 634, 638 (7th Cir.1999).
Ignoring this point, the company adopted complaint procedures likely to confuse even adult employees. The employee handbook that new employees are given has a brief section on harassment and states that complaints should be lodged with the "district manager." Who this functionary is and how to communicate with him is not explained. The list of 579*579 corporate officers and managers at the beginning of the handbook does not list a "district manager," or for that matter a "general manager," but instead a "restaurant manager"; and there is evidence that employees confuse "district manager" with "restaurant [or general] manager" — that is, Wilkins, the harasser. There is a phone number on the cover of the handbook, and if you call it you get a receptionist or a recorded message at V & J's headquarters. But an employee would not know whom to ask for at headquarters because she is not told who her district manager is or the district of the restaurant at which she works.
If an employee complains to a shift supervisor or assistant manager, that person is supposed to forward the complaint to the general manager (and thus in this case to Wilkins) even if the complaint is about the general manager. After receiving the complaint the general manager is supposed to "turn himself in," which of course Wilkins did not do. Nor did the shift supervisors or assistant manager report Merriweather's complaints to Wilkins or to anyone else. A policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law. Faragher v. City of Boca Raton, supra, 524 U.S. at 808-09, 118 S.Ct. 2275; see also Clark v. United Parcel Service, Inc., 400 F.3d 341, 349-50 (6th Cir.2005).
The pay statements that the defendant's employees receive with their salary checks contain a company "hotline" number different from the number on the cover of the employee handbook. The pay statement says that the number is to be used if the employee wants to "comment" about the company. A complaint is not well described as a "comment"; an

employee might think the hotline number was like a suggestion box. Also, it is unclear whom you reach if you call that number. And the number appears in an inconspicuous place on the pay statement and Wilkins himself testified that he did not know how to find it.
Were it costly for an employer to provide a clearer path for complaints about harassment, the cost would have to be weighed against the benefits, the latter being measured presumably by the increase in meritorious complaints that the clearer procedure would generate and the resulting reduction in workplace harassment. An unreasonably costly complaint mechanism would not be reasonable. But it would cost very little, certainly for a company of V & J's size, to create a clear path for complaints of harassment and other forms of illegal discrimination. Its home page describes the company as "one of the largest restaurant franchise companies in the country." www.vjfoods.com/about.html (visited Sept. 13, 2007). All that it would have to do, we should think, would be to post in the employees' room (thus not visible to the restaurant's customers) a brief notice that an employee who has a complaint about sexual harassment or other misconduct can call a toll-free number specified in the notice. The number would ring in the office of a human relations employee and the receptionist would identify the office as that of the company's human relations department. Given V & J's size, it must have a number of human relations personnel.
Of course the suggested procedure would add to the company's costs, because its human relations department would be processing more complaints. But the cost increment would probably not be great and in the long run it might be trivial or even negative, since, as word of the existence of an effective complaint procedure spread, the amount of harassment would 580*580 decline. In any event, the defendant has the burden of proving that it has established and implemented an effective complaint machinery — it is an affirmative defense, Faragher v. City of Boca Raton, supra, 524 U.S. at 807-08 118 S.Ct. 2275; Burlington Industries, Inc. v. Ellerth, supra, 524 U.S. at 765, 118 S.Ct. 2257 — and V & J has presented no evidence at all about the cost of adopting and administering an effective complaint machinery.
Merriweather's claim of retaliation also was dismissed prematurely. But to see this one must distinguish among several cases of third-party harassment. The first is where a stranger to an incident of harassment — probably a fellow employee, but functionally a bystander — complains to the employer about the harassment and the company responds by firing the employee in annoyance at the stranger's intervention. The statute forbids "an employer to discriminate against any of its employees or applicants for employment... because he has opposed any practice" that violates the statute or "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" the statute. 42 U.S.C. § 2000e-3(a). The stranger (as we are calling him) in our example is not a victim of discrimination (he may not even be an employee), while the victim of discrimination is not the person who opposed the unlawful practice. So the victim would not have a remedy for the retaliation. (The stranger would, if he were an employee and was fired for assisting the victim to press a charge.)
At the opposite extreme is the case in which the victim of harassment either is represented by a lawyer and it is the lawyer who expresses to his client's employer the client's opposition to being harassed, cf. Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.1989), or, as in this case, the victim is a minor and the "opposer" is the minor's parent or guardian.

The right to sue for retaliation because you were fired (or otherwise discriminated against) as a result of your lawyer's having assisted you in opposing discrimination is implicit in the second clause of the retaliation provision, relating to the bringing of a charge or other litigation-related activity, normally handled by one's lawyer. But the parent-guardian case is no less clear and was held in Baird ex rel. Baird v. Rose, 192 F.3d 462, 471 n. 10 (4th Cir. 1999), albeit in a footnote, to permit a claim on behalf of the child for retaliation.
People often act through agents, such as lawyers; and minors, especially because of their legal and functional incapacities, must act through agents in any legal matter, and their agents are their parents or guardians. Merriweather could not have sued V & J on her own. And if she sued by her "next friend" (her mother), as authorized by Fed.R.Civ.P. 17(c) and illustrated by such cases as Black v. North Panola School District, 461 F.3d 584 (5th Cir.2006); Gant ex rel. Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir.1999), and — the case directly on point — Baird, and was fired in retaliation, it would be absurd to think that she had not been fired for her opposition to the company's mistreatment of her. Merriweather's mother acted as her daughter's agent in confronting Wilkins about the sexual harassment of her daughter. In retaliating against Merriweather for her mother's intervention, Wilkins was retaliating against the principal, her daughter, just as if Merriweather's lawyer had complained to Wilkins about Wilkins's harassing his client and he had responded by firing Merriweather.
The intermediate case between what we are calling the stranger case on the one 581*581 hand, and the lawyer or parent/guardian case on the other, is where the employee is "represented" in an informal sense, usually by another employee. The "representative" is a kind of ad hoc agent, and the courts are divided over whether retaliation against the employee because of the opposition to harassment manifested by his "representative" is actionable. Compare Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 564 (3d Cir.2002), and Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir.1998), both implying that such retaliation is not actionable by the principal, with Holt v. JTM Industries, Inc., 89 F.3d 1224, 1227 n. 2 (5th Cir.1996), and EEOC v. Ohio Edison Co., 7 F.3d 541, 545 (6th Cir.1993), both holding that it is. This court has not expressed itself on the matter, and we need not do so in this case.
But we must consider whether Merriweather's mother, because she was her daughter's agent, should be charged with failing to activate the company's complaint procedure; perhaps she should have pursued the procedure that stumped her teenage daughter. But that would be carrying the agency analysis too far. It would impose on the daughter the duty of showing the mother the employee handbook and on the mother the duty of puzzling out how to convey a complaint of sexual harassment by her daughter's supervisor to the district manager for the daughter's restaurant. The mother is not a lawyer and cannot reasonably be expected to have done more than she did — remonstrate with her daughter's supervisor.
The judgment is reversed and the case remanded to the district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.

 
 United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:05−cv−00194−RTR

CLOSED

Equal Employment Opportunity Commission v. V&J Foods Inc Assigned to: Judge Rudolph T Randa Case in other court: USCA 12/28/06 EEOC, 07−1009 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 02/17/2005 Date Terminated: 06/10/2008 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Brian C Tyndall United States Equal Employment Opportunity Commission Milwaukee District Office 310 W Wisconsin Ave − Ste 500 Milwaukee, WI 53203−2292 414−297−1130 Fax: 414−297−3146 Email: brian.tyndall@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean P Kamp United States Equal Employment Opportunity Commission Chicago District Office 230 S Dearborn St − Ste 2980 Chicago, IL 60604 312−353−7719 Fax: 312−353−8555 Email: jean.kamp@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rosemary J Fox United States Equal Employment Opportunity Commission Milwaukee District Office 310 W Wisconsin Ave − Ste 500 Milwaukee, WI 53203−2292 414−297−4131 Fax: 414−297−3146 Email: rosemary.fox@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant V&J Foods Inc

represented by Andre E Townsel Townsel Law Firm 1701 E Woodfield Rd − Ste 900 Schaumburg, IL 60173 312 772 5850 Fax: 312−278−0070 Email: atownsel@townsellaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Coral D Pleas Pleas Williams LLC

Defendant V&J Employment Service Inc

PO Box 240085 Milwaukee, WI 53224 414−247−9570 Fax: 414−247−9571 Email: cpleas1561@aol.com TERMINATED: 03/03/2008
Judith A Williams−Killackey Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2400 Milwaukee, WI 53202 414−277−5439 Fax: 414−987−8702 Email: judi.williams@quarles.com TERMINATED: 02/26/2008
Pamela M Ploor Quarles & Brady LLP 411 E Wisconsin Ave − Ste 2400 Milwaukee, WI 53202 414−277−5661 Fax: 414−978−8661 Email: pploor@quarles.com TERMINATED: 02/26/2008
represented by Andre E Townsel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/17/2005
03/10/2005 03/11/2005 03/30/2005 04/15/2005 04/15/2005 04/15/2005 04/15/2005 05/18/2005 05/18/2005 05/25/2005

# Docket Text
1 COMPLAINT (Summons(es) issued) against V&J Foods Inc. Consent Forms Distributed for Magistrate Judge Callahan. E−File Notification Distributed. Jury Demand; filed by Equal Employment Opportunity Commission. (Attachments: # 1 Notice# 2 Waiver)(jld, )
2 Consent to Jurisdiction by US Magistrate Judge by Equal Employment Opportunity Commission (Fox, Rosemary)
3 LETTER re Consent to Magistrate form from Brian C. Tyndall (jld, )
4 REFUSAL of Consent to Jurisdiction by US Magistrate Judge by V&J Foods Inc (Attachments: # 1 Cover Letter)(jld, )
5 NOTICE of Appearance by Pamela M Ploor on behalf of V&J Foods Inc. Attorney(s) appearing: Pamela M. Ploor (Ploor, Pamela)
6 STIPULATION EXTENDING TIME FOR DEFENDANT TO FILE AND SERVE ANSWER by all parties (Ploor, Pamela)
7 CERTIFICATE of Interest by all defendants. (Ploor, Pamela)
8 CERTIFICATE OF SERVICE by V&J Foods Inc (Ploor, Pamela)
9 Defendant's ANSWER to Complaint & Affirmative Defenses by V&J Foods Inc.(Williams−Killackey, Judith)
10 CERTIFICATE OF SERVICE by V&J Foods Inc (Williams−Killackey, Judith)
11 NOTICE of Hearing: Federal Rule of Civil Procedure 16(b) Telephonic Scheduling Conference set for 7/20/2005 09:30 AM before Chief Judge Rudolph T Randa. (cc: all counsel) (Zik, Linda)

06/29/2005 07/01/2005 07/01/2005
07/14/2005 08/15/2005 08/16/2005 08/19/2005 09/13/2005
09/13/2005 10/28/2005
11/23/2005 02/28/2006 03/30/2006 03/30/2006 03/30/2006 04/21/2006 04/24/2006 04/27/2006 04/28/2006

12 LETTER from both parties requesting mediation (Williams−Killackey, Judith)
13 REPORT of Rule 26(f) Plan by all parties (Williams−Killackey, Judith)
14 ORDER REFERRING CASE to Magistrate Judge William E Callahan, Jr for mediation. Signed by Judge Rudolph T Randa on July 1, 2005. The telephonic scheduling conference call scheduled for July 20, 2005 at 9:30 A.M. before Judge Randa is removed from the calendar. (cc: all counsel)(Randa, Rudolph) (Entered: 07/05/2005)
15 ORDER signed by Magistrate Judge William E Callahan Jr on 7/14/05. Mediation Hearing set for 8/15/2005 10:00 AM in Courtroom 253 before Magistrate Judge William E Callahan Jr. (cc: all counsel)(rpz, )
16 Minute Entry for proceedings held before Magistrate Judge William E Callahan Jr: Mediation Hearing held on 8/15/2005 . Mediation did not result in settlement. (rpz, ) (Entered: 08/16/2005)
17 ORDER signed by Magistrate Judge William E Callahan Jr on 8/16/05. Mediation did not result in resolution of plaintiff's claims and the action is referred back to Judge Randa. Case no longer referred to William E Callahan, Jr. (cc: all counsel)(rpz, )
18 NOTICE of Hearing: Rule 16(b) Telephonic Scheduling Conference set for 9/13/2005 09:30 AM before Chief Judge Rudolph T Randa. (cc: all counsel)(Zik, Linda)
19 Minute Entry for proceedings held before Judge Rudolph T Randa: Telephonic Scheduling Conference held on 9/13/2005. Amended Pleadings due by 10/31/2005. Plaintiffs Expert Witness List due by 1/16/2006. Defendants Expert Witness List due by 3/15/2006. Plaintiffs Rebuttal Expert Witness List due by 4/28/2006. All Discovery other than Expert Discovery due by 5/15/2006. Expert Discovery due by 6/1/2006. Dispositive Motions due by 6/30/2006. Telephonic Final Pretrial Conference set for 11/6/2006 02:00 PM before Chief Judge Rudolph T Randa. 3−4 day Jury Trial set for 12/4/2006 09:00 AM in Courtroom 320 before Chief Judge Rudolph T Randa. (Randa, Rudolph) (Entered: 09/14/2005)
20 SCHEDULING ORDER: signed by Judge Rudolph T Randa on 9/13/2005. (cc: all counsel) (Randa, Rudolph) (Entered: 09/14/2005)
21 AMENDED COMPLAINT FIRST AMENDED COMPLAINT BY EEOC against all defendants Jury Demand filed by Equal Employment Opportunity Commission.(Tyndall, Brian) Modified on 10/31/2005 (jld, to add against all defendants).
22 NOTICE of Appearance by Andre E Townsel on behalf of V&J Foods Inc, V&J Employment Service Inc. Attorney(s) appearing: Andre E. Townsel (Townsel, Andre)
23 ANSWER to Amended Complaint by V&J Foods Inc, V&J Employment Service Inc.(Townsel, Andre)
24 MOTION to Compel Discovery by all plaintiffs. (Tyndall, Brian)
25 BRIEF in Support re 24 MOTION to Compel Discovery Brief in Support of Plaintiff's Motion to Compel Discovery filed by all plaintiffs. (Tyndall, Brian)
26 AFFIDAVIT of Brian C. Tyndall In Support of Plaintiff's Motion to Compel Discovery (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21)(Tyndall, Brian)
27 MOTION for Extension of Time by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)
MARGIN ORDER approving defendants' request for an extention to, and including, Friday, April 28, 2006, to respond to plaintiff's motion to compel. Signed by Judge Rudolph T Randa on April 24, 2006. (cc: all ECF counsel)(Randa, Rudolph)
28 Joint MOTION to Modify Case Management Order by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)
29 BRIEF in Opposition re 24 MOTION to Compel Discovery filed by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)

05/01/2006
05/01/2006 05/02/2006 05/03/2006 05/04/2006 05/10/2006
05/11/2006 05/11/2006 05/23/2006 05/23/2006 06/16/2006 06/19/2006 06/27/2006 06/30/2006 07/05/2006 07/05/2006 07/05/2006 07/06/2006
07/14/2006 07/18/2006
07/19/2006 07/21/2006

MARGIN ORDER signed by Judge Rudolph T Randa on 5/1/2006 granting 28 Joint Motion to Modify Scheduling Order. Discovery deadline, other than expert discovery, extended to 6/16/2006. (cc: all counsel) (Randa, Rudolph)
Set/Reset Deadlines: Discovery due by 6/16/2006. No need for expert discovery per parties 4/27/2006 joint motion #28. (Zik, Linda)
30 MOTION for Protective Order by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)
31 CERTIFICATE OF SERVICE by V&J Foods Inc, V&J Employment Service Inc (Townsel, Andre)
32 SUPPLEMENT by V&J Foods Inc, V&J Employment Service Inc to Motion for Protective Order (Townsel, Andre)
33 ATTACHMENTS to entry 34 BRIEF in Support re 24 MOTION to Compel Discovery Reply Brief in Support of Plaintiff's Motion to Compel Discovery filed by all plaintiffs. (Attachments: # 1 # 2)(Tyndall, Brian) Modified on 5/11/2006 (jld, ).
34 REPLY BRIEF in Support re 24 MOTION to Compel Discovery filed by all plaintiffs. (Tyndall, Brian)
35 Docket Annotation ; Document does not match event used in docket entry notification sent to Attorney B. Tyndall re entry #33. (jld, )
36 BRIEF in Opposition re 30 MOTION for Protective Order filed by all plaintiffs. (Tyndall, Brian)
37 AFFIDAVIT of Brian C. Tyndall in Opposition to Defendants' Motion for Protective Order (Attachments: # 1 Exhibit # 2 # 3)(Tyndall, Brian)
38 STIPULATION Joint Stipulation for Extension of Discovery by all plaintiffs (Tyndall, Brian)
MARGIN ORDER approving joint stipulation for extension of discovery. Signed by Judge Rudolph T Randa on June 19, 2006. (cc: all ECF counsel)(Randa, Rudolph)
39 MOTION for Extension of Time to File Dispositive Motions by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)
40 MOTION for Summary Judgment by V&J Foods Inc, V&J Employment Service Inc. (Attachments: # 1)(Townsel, Andre)
41 RESPONSE to Motion re 39 MOTION for Extension of Time to File Dispositive Motions filed by Equal Employment Opportunity Commission. (Tyndall, Brian)
42 7.4 MOTION to Compel Discovery by Equal Employment Opportunity Commission. (Tyndall, Brian)
43 DECLARATION of Brian C. Tyndall in support of Rule 7.4 Motion to Compel Discovery (Attachments: # 1 # 2 # 3)(Tyndall, Brian)
MARGIN ORDER signed by Judge Rudolph T Randa on 7/5/2006 granting 39 defendants' motion for extension of time to 7/14/2006 to file dispositive motions. (cc: all counsel) (Randa, Rudolph T)
44 Amended MOTION for Summary Judgment by V&J Foods Inc, V&J Employment Service Inc. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9)(Townsel, Andre)
45 ORDER signed by Judge Rudolph T Randa on July 18, 2006 granting 42 Motion to Compel. EEOC's Rule 7.4 Motion to Compel 42 is GRANTED. V & J is directed to answer Interrogatory 13. (cc: all counsel) (Randa, Rudolph) (Entered: 07/19/2006)
46 MOTION To Set Briefing Schedule by Equal Employment Opportunity Commission. (Tyndall, Brian)
47 LETTER from Brian Tyndall regarding Motion to Set Briefing Schedule (Tyndall, Brian)

07/21/2006 08/16/2006 08/17/2006 08/17/2006 08/17/2006
08/21/2006 08/21/2006
08/21/2006 08/21/2006 08/21/2006 08/21/2006 08/22/2006
08/22/2006 08/22/2006
09/14/2006 09/18/2006

MARGIN ORDER approving request that the due date for EEOC's response to defendants' motion for summary judgment be August 16, 2006. Signed by Judge Rudolph T Randa on July 21, 2006. (cc: all ECF counsel)(Randa, Rudolph)
48 MOTION for Extension of Time Motion to Extend Briefing Schedule by Equal Employment Opportunity Commission. (Tyndall, Brian)
49 RESPONSE to Motion re 48 MOTION for Extension of Time Motion to Extend Briefing Schedule filed by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)
50 MOTION for Extension of Time to file Reply by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)
MARGIN ORDER approving 50 MOTION for Extension of Time to file Reply filed by V&J Foods Inc, V&J Employment Service Inc; approving 48 MOTION for Extension of Time filed by Equal Employment Opportunity Commission. The due date for EEOC's response to defendants' motion for summary judgment is extended to August 23, 2006, V&J's reply is due September 13, 2006. Signed by Judge Rudolph T Randa on August 17, 2006. (cc: all ECF counsel)(Randa, Rudolph) (Entered: 08/18/2006)
51 BRIEF in Opposition re 40 MOTION for Summary Judgment EEOC'S RESPONSE BRIEF IN OPPOSITION TO SUMMARY JUDGMENT filed by Equal Employment Opportunity Commission. (Tyndall, Brian)
52 RESPONSE to Motion re 40 MOTION for Summary Judgment EEOC'S RESPONSE TO DEFENDANT'S PROPOSED FINDINGS OF FACT AND ADDITIONAL PROPOSED FINDINGDS OF FACT AND DISPUTED MATERIAL FACTS filed by Equal Employment Opportunity Commission. (Tyndall, Brian) Modified on 8/22/2006 (vlh, ).
53 AFFIDAVIT of SAMEKIEA MERRIWEATHER IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Tyndall, Brian)
54 AFFIDAVIT of BARBARA RETH IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Tyndall, Brian)
55 AFFIDAVIT of BRIAN C. TYNDALL IN OPPOSITION TO DEFEDANTS' MOTION FOR SUMMARY JUDGMENT (Tyndall, Brian)
56 ATTACHMENTS TO AFFIDAVIT OF BRIAN C. TYNDALL by Equal Employment Opportunity Commission (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20)(Tyndall, Brian)
57 ATTACHMENTS AFFIDAVIT OF BRIAN C. TYNDALL IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Equal Employment Opportunity Commission (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9)(Tyndall, Brian)
58 ATTACHMENTS AFFIDAVIT OF BRIAN C. TYNDALL IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Equal Employment Opportunity Commission (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Tyndall, Brian)
59 ATTACHMENTS AFFIDAVIT OF BRIAN C. TYNDALL IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Equal Employment Opportunity Commission (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Tyndall, Brian)
60 Emergency MOTION for Extension of Time to file Reply by V&J Foods Inc, V&J Employment Service Inc. (Townsel, Andre)
MARGIN ORDER approving, nunc pro tunc, 60 Emergency MOTION for Extension of Time to file Reply filed by V&J Employment Service Inc,V&J Foods Inc. Signed by Judge Rudolph T Randa on September 18, 2006. (cc: all ECF counsel)(Randa, Rudolph) (Entered: 09/20/2006)

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61 REPLY BRIEF in Support filed by V&J Foods Inc, V&J Employment Service Inc re 44 Amended MOTION for Summary Judgment. (Attachments: # 1 # 2 # 3)(Townsel, Andre)
62 MOTION to Compel Plaintiff's Rule 7.4 Expedited Non−Dispositive Motion to Compel Discovery by Equal Employment Opportunity Commission. (Tyndall, Brian)
63 DECLARATION of Brian C. Tyndall in Support of Plaintiff's Rule 7.4 Expedited Non−Dispositive Motion to Compel Discovery. (Attachments: # 1 Exhibit # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Tyndall, Brian)
64 RESPONSE to Motion filed by V&J Foods Inc, V&J Employment Service Inc re 62 MOTION to Compel Plaintiff's Rule 7.4 Expedited Non−Dispositive Motion to Compel Discovery. (Attachments: # 1 # 2)(Townsel, Andre)
65 ORDER signed by Judge Rudolph T Randa on October 16, 2006 granting in part and denying in part 62 Motion to Compel. (cc: all counsel) (Randa, Rudolph)
66 MOTION to Supplement amended motion for summary judgment by V&J Foods Inc, V&J Employment Service Inc. (Attachments: # 1 # 2 # 3 # 4)(Townsel, Andre)
67 Plaintiff's PRETRIAL REPORT by Equal Employment Opportunity Commission. (Tyndall, Brian)
68 MOTION to Supplement Record on Summary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit)(Tyndall, Brian)
69 ORDER signed by Judge Rudolph T Randa on November 3, 2006 granting 40 Motion for Summary Judgment; granting 44 Motion for Summary Judgment; granting 66 Motion to Supplement; granting 68 Motion to Supplement; denying as moot 24 Motion to Compel; denying as moot 30 Motion for Protective Order. This matter is dismissed. (cc: all counsel) (Randa, Rudolph)
70 JUDGMENT signed by Deputy Clerk on November 3, 2006. (cc: all counsel)(Randa, Rudolph)
71 BILL OF COSTS Proposed by V&J Foods Inc, V&J Employment Service Inc (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16)(Townsel, Andre)
72 BRIEFING LETTER Mailed to Parties re proposed bill of costs (jld)
73 LETTER from Brian C. Tyndall Proposed Costs − No Objections. (Tyndall, Brian)
74 COSTS TAXED for defendants by Chief Deputy Clerk in amount of $5,092.75 against plaintiff. (cc: all counsel) (jld)
75 NOTICE OF APPEAL from 11/3/06 70 Judgment by Equal Employment Opportunity Commission (cc: all counsel) (vlh)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: 75 Notice of Appeal (vlh)
USCA Case Number 07−1009 re: 75 Notice of Appeal filed by EEOC(vlh)
Appeal record prepared consisting of 1 bound vol. pldgs. & 4 loose pldgs. (nos. 26, 44, 56, & 57) re: 75 Notice of Appeal (vlh)
76 7.4 MOTION to Supplement Record on Appeal (Expedited) by Equal Employment Opportunity Commission. (Attachments: # 1)(Tyndall, Brian)
77 DECISION AND ORDER signed by Judge Rudolph T Randa on 3/6/07 granting 76 plaintiff's motion to supplement the record on appeal. The pages attached as Exhibit A to plaintiff's motion shall be included in the record on appeal. (cc: all counsel) (Randa, Rudolph T)
78 Notice of oral argument, construed as appeal record request, received from 7th Cir. re: USCA Case No. 07−1009. (vlh) (Entered: 07/17/2007)
Certified Record on Appeal transmitted to US Court of Appeals consisting of 1 bound vol. pldgs. & 4 loose pldgs. (nos. 26, 44, 56, & 57) re: 75 Notice of Appeal (cc: all

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counsel) (vlh)
79 NOTICE of Change of Address for Defendant's counsel Andre E Townsel. (jv) (Entered: 11/27/2007)
80 USCA Mandate (certified copy) as to 75 Notice of Appeal filed by Equal Employment Opportunity Commission USCA Number 07−1009 Reversed with costs and Remanded the decision of the district court (jv) (Entered: 01/09/2008)
Appeal Record Returned consisting of 1 vol of pleadings, 4 vol of loose pleadings. re 75 Notice of Appeal (jv) (Entered: 01/09/2008)
81 NOTICE of Hearing: Telephonic Scheduling Conference set for 2/20/2008 10:00 AM before Chief Judge Rudolph T Randa. (cc: all counsel − via US Mail to Coral Pleas) (Zik, Linda)
Mail Returned as Undeliverable. Mail sent to Attorney Coral D Pleas, Doc 81. (Zik, Linda)
Docket Annotation. Doc 81 remailed to Coral Pleas, 6944 N Port Washington Rd, #2, Glendale, WI 53217−3923. (Zik, Linda)
82 Minute Entry for proceedings held before Chief Judge Rudolph T Randa: Telephonic Scheduling Conference held on 2/20/2008. Case referred to Magistrate Judge William E Callahan, Jr. for mediation only. This Court to address discovery disputes. Telephonic Final Pretrial Conference set for 6/9/2008 02:00 PM before Chief Judge Rudolph T Randa. 5−day Jury Trial set for 7/14/2008 09:00 AM in Courtroom 320 before Chief Judge Rudolph T Randa.(Randa, Rudolph)
83 SCHEDULING ORDER: signed by Chief Judge Rudolph T Randa on 2/20/2008. See Hearing Minutes above. (cc: all counsel) (Randa, Rudolph)
84 LETTER from attorney Judith A. Williams−Killackey advising that Quarles & Brady is no longer appearing on behalf of V&J Foods (Notice to counsel: All documents, including letters, are to be e−filed.) (vlh)
85 LETTER from attorney Coral D. Pleas advising she is no longer attorney of record for defendant (vlh)
86 ORDER signed by Magistrate Judge William E Callahan, Jr on 3/13/08. Mediation Hearing set for 4/30/2008 10:00 AM in Courtroom 253 before Magistrate Judge William E Callahan Jr. (cc: all counsel)(rz)
87 Report from Brian C. Tyndall Joint Report of Counsel Regarding Discovery Matters. (Tyndall, Brian)
88 Minute Entry for proceedings held before Magistrate Judge William E Callahan, Jr: Mediation Hearing held on 4/30/2008. (bdf) (Entered: 05/01/2008)
Docket Annotation − Deadline modified as to paragraph 8 of Document 87. 5/7/2008 deadline extended to 5/12/2008 for submission of joint report to Court if motions or further actions are necessary by the Court. (Zik, Linda)
89 ORDER signed by Magistrate Judge William E Callahan, Jr on 5/12/08. Mediation resulted in settlement. Case no longer referred to Magistrate Judge William E Callahan, Jr. (cc: all counsel)(rz)
90 LETTER from Brian C. Tyndall advising the Court that parties have reached a settlement. (Tyndall, Brian)
MARGIN ORDER signed by Chief Judge Rudolph T Randa on 5/13/2008 APPROVING 90 Letter from attorney Brian C Tyndall. (cc: all counsel) (Randa, Rudolph)
91 DISREGARD ENTRY; LETTER from Brian C. Tyndall regarding consent decree and order. (Tyndall, Brian) Modified on 6/5/2008 to correct text(cms).
92 LETTER from Brian C. Tyndall regarding consent decree and order (correction). (Tyndall, Brian)

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93 PROPOSED Consent Decree and Order filed by all plaintiffs. (Tyndall, Brian)
94 CONSENT DECREE AND ORDER signed by Chief Judge Rudolph T Randa on June 10, 2008. (cc: all counsel)(Koll, J)