IN THE UNITED STATES DISTRICT COURT FOR THE SOUTIlERN DISTRICT OF OHIO
WESTERN DIVISION

06 SEP 79 PH I: 02

EQUAL EMPLOYMENT OPPOR11JNITY

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COMMISSION,

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Plaintiff,

)

)

v.

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UNITRIN SPECIALTY, a business segment of )

UNITRIN, INC., and TRINITY UNIVERSAL )

INSURANCE CO., a wholly owned subsidiary of )

UNITRIN, INC.,

)

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Defendants.

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~-------------------------)

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CIVIL ACTION NO. ~ : 06 cv 0302
vvALlfR. HERBERT RICE
COMPLAINT
JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964, Title I of the Civil Rights Act of 1991, and the Age Discrimination in Employment Act to correct an unlawful employment practice on the basis ofretaJiation and t('I provide appropriate relief to Thomas Allmond. The Commission alleges that Defendants terminated Thomas Allmond in retaliation for having complained of age and sex discrimination, in violation ofTitle VII of the Civil Rights Act and the Age Discrimination in Employment Act.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuantto 28 U.S.C. §§ 451,1331,1337, 1343, and 1345. This action is authorized and instituted pursuantto Section 706{f)(l) and (3) of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 e-5(f)(1) and (3) ("Title
VlI") and Section I02 of the Civil Rights Act of1991, 42 U.S.C. § 198 la; and Section 7{b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the

• •
"ADEN'), which incorporates by reference Sections 16(c) and 17 ofthe Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§ 216(e) and 217.
2. The employment practice alleged to be unlawful was committed within the jurisdiction ofthe United States Court for the Southern District of Ohio, Western Division.
3. But for the employment practice alleged to be unlawful, Thomas Allmond would have worked within the jurisdiction ofthe United States Court for the Southern District of Ohio, Western Division.
PARTIES 4. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency ofthe United States ofAmerica charged with the administration, interpretation, and
enforcemeut of Title vn and the ADM, and is expressly authorized to bring this action by
Section 706(f)(1) and (3) ofTitle Vll, 42 U.S.C. § 2000e-5(f) (I) and (3); and Section 7(b) ofthe ADEA, 29 U.S.C. § 626(b), as amended by Section 2 ofReorganization Plan No.1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.
5. At all relevant times, Defendant Unitrin, Inc., has continuously been a Delaware corporation, doing business in the State of Ohio and the City ofDayton, and has continuously had at least 20 employees; Defendant Unitrin Specialty has been a business segment ofUnitrin, Inc.; and Defendant Trinity Universal Insurance Company, a wholly owned subsidiary of Unitrin, Inc., has continuously been a Texas corporation. doing business in the State of Ohio and the City ofDayton, and has continuously had at least 20 employees (the "Employers").
6. At all relevant times, Defendant Employers have continuously been employers engaged in an industry affecting commerce within the meaning ofSections 701(b), (g), and (h)
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of ride VII, 42 U.S.C. §§ 20ooe(b), (g), and (h); and Sections I I(h). (g), and (h) of the ADEA, 29 U.S.C. §§ 630(b}, (g), and (h).
CONCILIATION 7. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practice alleged below and to effect voluntary compliance with the ADEA through infurmal methods of conciliation, conference, and persuasion within the meaning of Section 7(h} oftheADEA, 29 U.S.C. § 626(b}.
STATEMENT OF CLAIMS 8. More than thirty days prior to the institution of this lawsuit, Thomas Allmond
filed a charge with the Commission alleging violations of Title vn by Defendant Employers. All
conditions precedent to the institution ofthis lawsuit have been fulfilled. 9. On or about August 15,2005, Defendant Employers engaged in an unlawful
employment practice, in violation of Section 704(a) ofTitle VII, 42 U.S.C. § 200Qe..3(a}; and Section 4 oethe ADEA, 29 U.S.C. § 623(d). Defendant Employers fired Thomas Allmond in retaliation for his having complained of age and sex discrimination.
10. The effect of the practice complained of in paragraph 9 above has been to deprive Thomas Allmond of equal employment opportunities and otherwise adversely affect his status as an employee, because of retaliation.
II. The unlawful employment practice complained of in paragraph 9 above was
intentional.
12. The unlawful employment practice complained of in paragraph 9 above was done
with malice or with reckless indifference to the federally protected rights of Thomas Allmond.
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13. The unlawful employment praetice complained of in paragraph 9 above was willful within the meaning ofSeetion 7(b) ofthe ADEA. 29 U.S.C. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court;
A. Grant a permanent injunction enjoining Defendant Employers, their officers, successors, assigns, and all persons in active concert or participation with them, from firing employees for having complained ofdiscrimination and any other employment practice which discriminates on the basis ofretaliation.
B. Order Defendant Employers to institute and carry out policies, practices, and programs which provide equal employment opportunities for employees who have complained of discrimination, and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant Employers to make whole Thomas Allmond by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place reinstatement or in the alternative an award of front pay to Thomas Allmond.
D. Order Defendant Employers to make whole Thomas Allmond by providing compensation for past and future pecuniary losses resulting from the unlawful employment practice described in paragraph 9 above, including but not limited to out of pocket expenses, plus prejudgment interest. in amounts to be determined at triaL
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E. Order Defendant Employers to make whole Thomas Allmond by providing compensation for past and future nonpecuniary losses resulting from the unlawful employment practice described in paragraph 9 above, including but not limited to physical and emotional pain and suffering, mental anguish, and loss of enjoyment of life, in wnounts to be determined at triaL
F. Order Defendant Employers to pay Thomas Allmond punitive damages for their malicious and reckless conduct described in paragraph 9 above, in wnounts to be determined at trial.
O. Grant a judgment requiring Defendant Employers to pay appropriate back wages in an wnount to be determined at trial, and an equal sum as liquidated damages, or prejudgment interest in lieu thereof to the individual ",nose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to Thomas Allmond.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
I. Award the Commission its costs of this action.
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully SubmiTted,
egionaI Attorney,
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~lli SJMJ:L HELLE EISELE, #12070-49 Supervisory Trial Attorney
rJ l:titl J. 7),~
KE THL.BIRD.#10780-02 Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTIJNITY COMMISSION Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis IN 46204-4203 Phone: (317) 226-7204 Fax: (317) 226-5571 Email: Kenneth.Bird@eeoc.gov

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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, vs.
UNITRIN SPECIALTY, et al. Defendants.

: : : Case No. 3:06cv302 : JUDGE WALTER HERBERT RICE :

DECISION AND ENTRY SUSTAINING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. #20) AND SUSTAINING, IN PART, AND OVERRULING, IN PART, DEFENDANTS’ MOTION TO STRIKE CERTAIN ASSERTIONS AND MATERIALS (DOC. #25) AND PLAINTIFF’S MOTION TO STRIKE AFFIDAVITS (DOC. #51); JUDGMENT TO BE ENTERED ON BEHALF OF DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY
Thomas Allmond was employed by Defendant Unitrin Speciality or its
predecessor from 1999 until his termination in 2005. Unitrin Speciality is a
business segment of Defendant Unitrin, Inc. Defendant Trinity Universal Insurance
Company is a wholly owned subsidiary of Unitrin, Inc. (Defendants Unitrin
Speciality, Unitrin, Inc., and Trinity Universal Insurance Company will be referred to
collectively as “Unitrin”.) Plaintiff Equal Employment Opportunity Commission
(“EEOC) brings suit against Unitrin, on behalf of Allmond, alleging retaliation for
having complained of age and sex discrimination, in violation of Title VII and the
Age Discrimination and Employment Act (“ADEA”).

Presently before the Court are three Motions, to wit: (1) Unitrin’s Motion for
Summary Judgment (Doc. #20); (2) Unitrin’s Motion to Strike Certain Assertions
and Materials (Doc. #25); and (3) the EEOC’s Motion to Strike Affidavits (Doc.
#51). The Court will first address the two Motions dealing with the evidentiary
challenges and then turn to an analysis of the Motion for Summary Judgment.
I. MOTION TO STRIKE CERTAIN ASSERTIONS AND MATERIALS (DOC. #25)
Unitrin has filed a Motion to Strike Certain Assertions and Materials that are
presented in conjunction with the EEOC’s response to Unitrin’s Motion for
Summary Judgment. Doc. #25. Specifically, Unitrin challenges the following
materials filed by the EEOC, as well as various assertions made or citation formats
used by the EEOC, in its responsive memorandum:
(1) Assertion in its memorandum that fellow employee, Peter Worth, was forced to leave Unitrin (objected to as having no evidentiary support, being based on speculation and a lack of personal knowledge and contradicting Allmond’s deposition testimony);1
(2) Allmond’s letter to the EEOC, dated August 31, 2005, which is attached to Allmond’s deposition (objected to as not being an affidavit or statement made under oath, containing opinions based on hearsay rather than personal knowledge, being contradictory of Allmond’s deposition testimony and not being based on personal knowledge);2
1The memorandum text that Unitrin objects to reads as follows: “the person for whom the company was trying to hire a replacement was an older male product manager who was forced to leave Unitrin.” Doc. #21 at 12.
2The letter in question is at Document #41, Attachment #4. 2

(3) Report prepared by EEOC investigator Thomas Feiertag, which is attached to Feiertag’s sworn declaration (objected to as not being made under oath, containing opinions based on hearsay rather than personal knowledge, and the fact that source documents for the report (to include the report itself) were not provided to Defendants because of asserted privileges);3
(4) Hypothetical bonus calculations (objected to as being purely speculative);4
(5) Identification of exhibit in memorandum (objected to as being misleading).5
Initially, the Court addresses the claim that neither the Allmond letter nor the
Feiertag report is properly before the Court because they are not affidavits or
statements under oath. Federal Rule of Civil Procedure 56 allows courts to
consider “discovery and disclosure materials on file, and any affidavits,” in
determining whether there exists a genuine issue as to any material fact, in
summary judgment considerations. Fed. R. Civ. Proc. 56(c). Further, Federal Rule
of Evidence 901 provides that a document may be properly authenticated by
3Feiertag’s declaration and report are at Document #31.
4The calculations are at Document #44, Attachment #13.
5The reference to the exhibit, about which the Defendants complain, reads as follows: “In 2001, Mr. Allmond was promoted to assistant vice president with the observation, ‘Tom is clearly the strongest of our Product Managers.’ (Bage dep. Ex. 22.)” Doc. #21 (Pl.’s Mem. Resp.) at 2. The Defendants object to the cite to “Bage dep. Ex. 22", arguing that Ms. Bage did not author the document attached as Exhibit 22 (from which the quoted material was taken) and that the format of the cite misleadingly implies that the quote is hers. Doc. #25 (Defs.’ Mot. Strike) at 18.
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submitting “evidence sufficient to support a finding that the matter in question is what its proponent claims,” to include “[t]estimony that a matter is what it is claimed to be.” Fed. R. Evid. 901(a), (b)(1). Finally, 28 U.S.C. § 1746 allows the substitution of sworn declarations for affidavits, so long as the declaration is dated and subscribed by the declarant as true, under penalty of perjury. In the present case, Allmond properly authenticated his letter in the course of his deposition, and a copy of the letter is appropriately attached to a transcript of that deposition. Doc. #41 (Allmond Dep.) at 184; Doc. #41, Attach. #4. Likewise, the Feiertag report is authenticated in that it is attached to a properly sworn declaration. Doc. #31, Attach. #1 (Feiertag Dec. and Report). Thus, the Defendants’ arguments are not well taken, on this point. This does not end the Court’s inquiry into the propriety of considering these documents, however, because the Defendants also raise various other objections about the same.
As to the Feiertag Report, the Court takes note of the fact that the EEOC only cites to this report one time in the course of its briefings on Unitrin’s Motion for Summary Judgment.6 See Doc. #21 at 5. The sole text for which this report (along with an unrelated deposition) is offered as support is found in the Facts Section of the Plaintiff’s responsive memorandum and reads as follows:
Ms. Bage admits that the July 29th email was a factor in her decision to fire Mr. Allmond. She felt the email was unprofessional. She
6Despite a total of nine pages of arguments about this report, in the briefing on the Defendants’ Motion, this fact is not pointed out by either of the parties.
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considered it “a violation of trust” and concluded that Mr. Allmond could not be “her number 2 if she could not trust him.” Although she claims she had contemplated firing Mr. Allmond, his email “sped it up.” Id. (citing “Feiertag decl. & Ex. 1" and “Bage dep. vol. 1 at 58-59"). The only point of factual consequence in this passage, which is later relied on by the EEOC in its argument, is that the e-mail in question was a factor in Bage’s decision to terminate Allmond. Id. at 17 (“Importantly, Ms. Bage admits that the email was a factor in her decision to fire Mr. Allmond.”). In response to this assertion, the Defendants concede (for purposes of summary judgment) that the subject e-mail was one of the factors that contributed to the termination decision. Doc. #24 (Defs.’ Reply Mem.) at 11. Furthermore, the other deposition to which the Plaintiff cites in support of this passage is arguably supportive (construing the evidence most strongly in favor of the nonmoving party, the Plaintiff, in the Motion for Summary Judgment) of the conclusion that the subject e-mail played a role in Bage’s decision to terminate. Doc. #43 (Bage Dep.) at 58-59. Thus, there is no point in the Court spending judicial resources to resolve the questions pertaining to the propriety of this piece of evidence when none of the contents therefrom are offered to present, or present, a genuine issue of material fact, in the underlying Motion for Summary Judgment. Therefore, the Defendants’ Motion to Strike Certain Assertions and Materials (Doc. #25) is OVERRULED, as moot, to the extent the Motion pertains to the Feiertag Report.
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Further, because the Court has no indication to what extent, if any, the other evidence to which the Defendants object is important to the resolution of the Summary Judgment Motion at issue, the Court is not inclined to expend scare judicial resources detailing the contents of these documents, at this time.7 The Court is well aware of the Rules of Civil Procedure and the Rules of Evidence. To the extent the Court finds that any of the matters contained in the Allmond letter, the bonus calculations, the disputed assertion or the challenged citation format is relied upon by the EEOC and is relevant to the dispositive issues in the Motion for Summary Judgment, it will determine whether the specific information is admissible, at that time, and will note the same in the course of its analysis below. See Leib v. Famous Distrib., 2006 U.S. Dist. LEXIS 5802, **16-17 (S.D. Ohio Feb. 15, 2006) (refusing to strike disputed evidence since very little, if any, evidence with respect to the dispositive issues in the case was contained therein and the court was “confident in its ability to disregard any evidence that is not based on personal knowledge, or any inadmissible, conclusory, speculative or contradictory evidence”).
7The Defendants move to strike the entire Allmond letter, yet do not give the Court the courtesy of pointing out what parts of the letter, if any, the Plaintiff has relied on in the course of its summary judgment briefings. As indicated, a review of the Defendants’ Motion to Strike indicates that many of the points objected to in the Allmond letter are not even addressed in the summary judgment briefings. E.g., Doc. #25 at 7-14.
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Therefore, the Defendants’ Motion to Strike Certain Assertions and Materials (Doc. #25) is OVERRULED, to the extent the Court later finds that any of the matters contained in the Allmond letter, the bonus calculations, the disputed assertion or the challenged citation format is relied upon by the EEOC in its response to the Motion for Summary Judgment, is relevant to the dispositive issues in that Motion and complies with the applicable Rules of Civil Procedure and Rules of Evidence; otherwise, said Motion is SUSTAINED.
II. MOTION TO STRIKE AFFIDAVITS (DOC. #51) The EEOC moves to strike two affidavits that Unitrin offers in support of its
Motion for Summary Judgment. Doc. #51. Some background information is initially helpful to the resolution of this Motion.
On May 15, 2008, the Court conducted a conference call with counsel to discuss various issues, including the lack of proper authentication of documents that had been filed by the parties, in support of and in opposition to Unitrin’s Motion for Summary Judgment. It is clear from the Court’s record of those proceedings that the Court instructed the parties to submit properly authenticated supporting documents to which they had referred in their summary judgment briefings, to include documents that had not been previously attached, as well as properly authenticated deposition excerpts that had been previously attached. In response, the parties timely filed voluminous deposition transcripts and exhibits.
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Docs. #38-#50. Unitrin also filed two affidavits (one from Lisa Bage and one from Dan Maloney) that purport to authenticate various pieces of evidence offered in support of its Motion for Summary Judgment, which are attached thereto. Doc. #37. It is these two affidavits, along with their exhibits, to which the EEOC objects, arguing that both the affidavits and some of the exhibits offer new information not previously relied on by Unitrin. Doc. #51.
Once again, in the interest of judicial economy, the Court is not going to read through the entirety of the affidavits and the eight exhibits, at this juncture. In accordance with the Court’s direction to the parties, at the conference call on May 15, 2008, the Court will consider the information in the affidavits only to the extent necessary to properly authenticate the attached documents. Further, the Court will consider only those attached documents that were specifically referenced by the Defendants in their briefings in support of their Motion for Summary Judgment. See InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989) (explaining that, in ruling on a motion for summary judgment, “[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim”).8 Any
8As will be explained in more detail, infra, in determining whether a genuine issue of material fact exists, the Court will rely only upon those portions of the depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties in their timely filed summary judgment briefings.
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documents to which Unitrin did not refer in its original briefing on the Motion for Summary Judgment will not be considered.
Therefore, the EEOC’s Motion to Strike Affidavits (Doc. #51) is OVERRULED, to the extent the affidavits contain information necessary to properly authenticate the documents attached thereto and to the extent the attachments were specifically referenced by Unitrin in its timely filed briefing in support of its Motion for Summary Judgment (Doc. #20, Doc. #24); otherwise, said Motion is SUSTAINED.
III. SUMMARY JUDGMENT STANDARD Summary judgment must be entered “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 Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party,
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991). “Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial.” Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241,
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1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations, it is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56(e) “requires the nonmoving party to go beyond the [unverified] pleadings” and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. “The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff.” Mich. Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Summary judgment shall be denied “[i]f there are . . . ‘genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). In determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255.
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If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties’ affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure Civil 3d § 2726 (1998).
In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), “[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990); see also L.S. Heath & Son, Inc. v. AT&T Info. Sys., Inc., 9 F.3d 561 (7th Cir. 1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992), cert. denied, 506 U.S. 832 (1992) (“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment . . . .”). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
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V. FACTS9 A. Integration of Companies Allmond originally worked as a senior product manager for Financial
Indemnity Company (“FIC”). Doc. #41 (Allmond Dep.) at 89. FIC was in the business of writing non-standard automobile insurance policies. Doc. #43 (Bage Dep.) at 11. In 2002, FIC combined with Charter Indemnity Insurance (“Charter”) and became part of a business segment known as Unitrin Speciality. Doc. #50 (Mullen Dep.) at 31. Upon this integration, Allmond began reporting to Senior Vice President, Lisa Bage - - - a former Charter employee. Doc. #41 (Allmond Dep.) at 98. At that time, Allmond wrote to Unitrin’s President, John Mullen, to express his disappointment with his placement under Bage, whom he viewed as being less qualified than he for the senior management position. Doc. #50, Attach. #9 (E-mail from Allmond to Mullen, dtd. Dec. 4, 2001).
B. Incident Involving E-Mail Dated July 29, 2005 In July 2005, Allmond and two other managers formed an interview team for the purpose of filling an open product manager position. Doc. #41 (Allmond Dep.) at 128. After interviewing two candidates (one male over the age of forty,
9Since this case comes before the Court on the Defendants’ Motion for Summary Judgment, the Court sets forth the facts and circumstances giving rise to such Motion in the manner most favorable to the Plaintiff, as the party against whom the Motion is directed. Servo Kinetics, Inc. v. Tokyo Precision Instruments, 475 F.3d 783, 790 (6th Cir. 2007).
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who was already a Unitrin employee, and one female), Allmond e-mailed Bage to
inform her that the team had reached a consensus that the male should be hired.
Id. at 130-34. On previous hiring decisions with which Allmond had been
involved, when the interviewing team reached a consensus, Bage approved the
hiring decision. Id. at 135-137. On this occasion, however, Bage responded as
follows:
After a quick look through this, I’m going to need more information before I can approve a hire. I have contrary evidence on everything for [the suggested hire] other than communication. I need you to have some pretty solid examples to help me understand what I’m missing.
You also had several other candidates in the pipeline. Have all of those been worked so that you are choosing the best of hirable candidates, or are you hiring the first qualified candidate you found[?]
Doc. #41, Attach. #2. At 10:54 p.m. that same evening (July 29, 2005), Allmond
responded to Bage’s email (and copied the company President, Mullen, as well as
the COO, Don Southwell, and the HR Director, Dan Maloney), as follows (“July 29
e-mail”):
Wow, I never expected this answer. I did not know this was a criminal investigation and have no idea what “evidence” you have against this over 40 year old man. I have long[] believed you have had a problem with anyone with the old FIC group. I even mentioned this in a memo to John at the beginning of the “Charter” take over.
I agree that there are some viable candidates, “hirable” is a strong word. The [female] candidate we talked to today was terrible, she had no related experience but did have a great educational background, and if she could have stop[ped] talking for just a moment we may have been able to evaluate[] her qualifications. I talked to
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Rick and he told me Cory had the same perception. It is quite evident to me that you are only interested in a female candidate.
We have hired several candidates in the past few years. If we did not know [the suggested male hire], we would have hired him on the spot. I truly believe that you have a prejudice against men any [sic] and former FIC employee[s].
I know I just committed corporate suicide, but you know I [feel] good and will sleep good tonight.
Id. Because of the implications of discrimination contained in this e-mail, the
following workday, Unitrin’s President commissioned the HR Director, Dan
Maloney, to conduct an investigation into the matter. Doc. #41 (Allmond Dep.) at
156; Doc. #50 (Mullen Dep.) at 40-42. Maloney contacted Allmond to discuss the
matter and then summarized the results of their conversation in the following e-
mail (“August 1 e-mail”):
Thanks for talking with me this afternoon regarding the [July 29 email]. [P]er our conversation I understand that you do not [believe Bage] is or has ever exhibited an age or gender bias in her employment decisions, but rather the concerns expressed [in the July 29 e-mail] were just an “overreaction to the pressure of working until 7:00 pm at night and working two jobs”.
I understand from our conversation that you do feel there has been a takeover of FIC by the former Charter organization, but the [July 29 email] is just (to use your words) “just ranting” on your part, and there is “nothing really going on”.
Tom, I want to be sure the statement above represents your true feelings. If you are uncomfortable talking to me for any reason, I would encourage you to contact the Corporate Responsibility hotline. This resource is staffed by [text cut-off in process of copying].10
10According to Maloney’s deposition, the Corporate Responsibility hotline “was staffed by a third-party administrator, [which employed] individuals [who]
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However, if the information above is complete and correct, please respond to this E-mail and let me know so I can close the file on this complaint.
Doc. #41, Attach #3. In response to Maloney’s August 1 e-mail, Allmond sent the
following (“August 2 e-mail”):
My true feelings are that I did indeed overreact to a late night working two jobs hoping to hire a replacement for [the previous employee who vacated the product manager position]. I was indeed surprised that [Bage] did not want to extend an offer to [the proposed new hire] based on evidence she had contrary to the findings that I and my commercial counterpart had of him. I did indeed overreact to her memo to me.
I do not believe [Bage] has ever discriminated against a person based on gender.
As for my “ranting” over the “Charter take over” I do believe that we former FIC employees are at a disadvantage for any opportunity (though not based on gender). As I told you “I don’t call the shots” and you responded that you do not call them either. “To the victor the spoils” (my words). That is just the way it is. You asked what my inner feelings were to cause the reaction I had. Again, it stems from my belief that we (FIC) were just basically taken over. We (former FIC employees) have lost basically every officer of the company . . . . I guess I am suffering from some paranoia that there is a target . . . on my back (most likely due to the differences in my performance evaluations between the “new regime” and the old).
I do want you to know that after I wrote my response to [Bage], I immediately wanted to recall my E-mail. Unfortunately, our system does not allow a recall unless the person written is on line. I did rant, wrote a response based on [a] stress[] filled emotional response.
I hope that I have not irrevocably ruined my relationship with [Bage], [Mullen], Don and yourself. While I do my best work under pressure, I do tend to get volatile while under the same pressure.
were not employees of Unitrin.” Doc. #49 (Maloney Dep.) at 113. 15

There is no reason for you to do any investigation over a gender discrimination I stupidly asserted. Id. This August 2 e-mail concluded Unitrin’s investigation into Allmond’s allegations of discrimination. Doc. #49 (Maloney Dep.) at 110-18. In later deposition testimony, Allmond stated that the August 2 e-mail to Maloney was “false”. Doc. #41 (Allmond Dep.) at 159. Although in that e-mail he effectively recanted the charges of discrimination in his July 29 e-mail, at his deposition, he testified that Maloney and Bage were “in cahoots with these decisions” and, thus, he only told Maloney there was no discrimination “[i]n order to protect myself, I basically was trying to save my job.” Id. at 156-57.
C. Allmond’s Termination Bage terminated Allmond approximately two weeks after the e-mail exchange summarized above, on or about August 15, 2005. Doc. #1 (Compl.) ¶ 9. According to Bage, a number of factors went into the decision to terminate Allmond, including his July 29 e-mail. Doc. #43 (Bage Dep.) at 58-59. Allmond first contacted the EEOC about Unitrin’s alleged discriminatory conduct via written correspondence, received by the EEOC on August 31, 2005. Doc. #41 (Allmond Dep.) at 186.
V. RETALIATORY DISCRIMINATION Plaintiff EEOC brings suit, on behalf of Allmond, alleging retaliation for 16

having complained of age and sex discrimination, in violation of Title VII and the ADEA. Title VII prohibits discrimination in employment on the basis of “race, color, religion, sex, or national origin,” while prohibiting retaliatory discrimination against an employee “because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under [Title VII].” 42 U.S.C. § 2000e-2(a)(1), § 2000e-3(a). Similarly, the ADEA prohibits discrimination in employment, on the basis of age, while prohibiting retaliatory discrimination against an employee “because such individual . . . has opposed any practice made unlawful by [the ADEA] or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA].” 29 U.S.C. § 623(a), (d).
A. Prima Facie Case of Retaliatory Discrimination In order to establish a prima facie case of retaliation, under both Title VII and the ADEA, a plaintiff must demonstrate: (1) that the plaintiff engaged in a protected activity; (2) that the defendant had knowledge of the plaintiff's protected conduct; (3) that the defendant took an adverse employment action towards the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.
17

Weigel v. Baptist Hosp., 302 F.3d 367, 381 (6th Cir. 2002) (citation omitted) (as to ADEA); see also Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (setting forth same test for Title VII retaliation claims).
As to the first prong of this test (whether the plaintiff engaged in a protected activity), the Sixth Circuit instructs courts to first consider whether the retaliation claim is based on an allegation that the employee “has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding or hearing under [Title VII or the ADEA], the participation clause; or (2) when an employee has opposed a violation of [Title VII or the ADEA], the opposition clause.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989) (internal quotation marks omitted) (as to Title VII)11; see also Fox v. Eagle Distrib. Co., 510 F.3d 587, 592 (6th Cir. Tenn. 2007) (applying same standard, as to the ADEA). “The distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.” Booker, 879 F.2d at 1312.
Thus, in this case, the Court must first determine whether Allmond’s conduct falls within the “participation clause” or the “opposition clause”. The Sixth Circuit indicates that “the instigation of proceedings leading to the filing of a
11In Booker, the Sixth Circuit construed Michigan’s Elliott-Larsen Act in the same manner as Title VII. Booker, 879 F.2d at 1311-12.
18

complaint or a charge, including ‘a visit to a government agency to inquire about filing a charge,’ is a prerequisite to protection under the participation clause.” Id. at 1313 (citing Polk v. Yellow Freight System, Inc., 801 F.2d 190, 200 (6th Cir. 1986)). Further, “internal correspondence with one’s employer does not sufficiently invoke the statutory machinery available under [Title VII] to constitute the filing of a complaint or a charge.” Id. Because Allmond did not instigate proceedings leading to the filing of a complaint or a charge prior to his termination, he had not yet “participated” in protected conduct, at that time. Thus, the Court will consider his claim in the context of the opposition clause.
Next, the Court must consider whether Allmond’s conduct is protected, because it “amount[ed] to opposition to an unlawful employment practice” by Unitrin. Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007). “In order to receive protection under the [statute], a plaintiff’s expression of opposition must concern a violation of the [statute].” Id.
The Plaintiff contends that Allmond’s July 29 e-mail asserted protectible opposition to both sex and age discrimination. Doc. #21 at 4. For ease of analysis, the Court once again sets forth the contents of that e-mail, with certain portions highlighted:
Wow, I never expected this answer. I did not know this was a criminal investigation and have no idea what “evidence” you have against this over 40 year old man. I have long[] believed you have had a problem with anyone with the old FIC group. I even mentioned this in a memo to John at the beginning of the “Charter” take over.
19

I agree that there are some viable candidates, “hirable” is a strong word. The [female] candidate we talked to today was terrible, she had no related experience but did have a great educational background, and if she could have stop[ped] talking for just a moment we may have been able to evaluate[] her qualifications. I talked to Rick and he told me Cory had the same perception. It is quite evident to me that you are only interested in a female candidate.
We have hired several candidates in the past few years. If we did not know [the suggested male hire], we would have hired him on the spot. I truly believe that you have a prejudice against men any [sic] and former FIC employee[s].
I know I just committed corporate suicide, but you know I [feel] good and will sleep good tonight.
Doc. #41, Attach. #2 (emphasis added). The Court will now proceed, first, with a
discussion about the alleged sex discrimination retaliation, followed by an analysis
of the alleged age discrimination retaliation.
B. Engaged in Protected Activity - Opposition to Sex Discrimination
Along with complaints about the perceived continuing impact of the 2002
FIC-Charter consolidation, the July 29 e-mail fairly clearly sets forth an opposition
to what Allmond perceived to be sex discrimination (“It is quite evident to me that
you are only interested in a female candidate” and “I truly believe that you have a
prejudice against men . . . .”). The Court cannot look at the July 29 e-mail in a
vacuum, however. It must also consider the follow-up conversation (and e-mails
memorializing the same) between Allmond and the HR Director. In that follow-up
communication, the two men discussed the allegations of sex discrimination made
by Allmond, as well as the displeasure Allmond voiced about the 2002 FIC-Charter 20

consolidation. Doc. #41, Attach #3. The communication concluded with Allmond acknowledging that he had overreacted and stating that he did not believe that Bage had ever discriminated against a person based on gender. Id. Based on his concluding statement that “[t]here is no reason for you to do any investigation over a gender discrimination I stupidly asserted,” id., Unitrin took no further steps in the investigation.
The Plaintiff makes much of the fact that Allmond “made clear at his deposition [that] his recantation was an effort to save his job.” Doc. #21 at 13. This point is irrelevant, however, because the Plaintiff has presented no evidence to indicate that Unitrin had any knowledge of this fact at the time it terminated him. Rather, at the time of his termination, the only information Unitrin had was that Allmond had sent an e-mail (to his supervisor, as well as the company HR Director, COO and President), alleging gender discrimination, but then immediately recanted this allegation in a follow-up communication with the HR Director. Thus, at the time of Allmond’s termination, he had not opposed any practice made an unlawful employment practice by Title VII (i.e., he had not engaged in protected conduct, in this regard). The Court will now turn to an analysis of whether Allmond had opposed an unlawful employment practice in the form of age discrimination.
21

C. Engaged in Protected Activity - Opposition to Age Discrimination The Plaintiff also contends that the July 29 e-mail asserted an opposition to Unitrin’s practice of age discrimination. In so doing, it points to the phrase “this over 40 year old man.” In the follow-up communication between Allmond and the HR Director, the subject of age discrimination was not broached. Thus, Allmond did not recant any allegation of age discrimination, as he did of sex discrimination, as previously discussed. The Court finds the absence of any discussion about this matter telling, however, in that it indicates that the HR Director (and possibly Allmond) did not interpret the e-mail as containing an age discrimination allegation. The Sixth Circuit has had the opportunity to determine whether similar correspondence was sufficient to constitute an opposition to an unlawful employment practice. In Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1309 (6th Cir. 1989), the plaintiff sent his employer a letter contending that his supervisor, when referring to African Americans, had stated that “I don’t know if these people can comprehend asset management,” and further contesting the company’s complaints about his managerial style, claiming that “this is a case of ethnocism [sic.], which should be investigated immediately.” In determining that the plaintiff had not contested an unlawful employment practice in this correspondence, the Appellate Court found that the allegation that the supervisor had made the statement, “I don’t know if [African Americans] can comprehend asset management,” indicated that the supervisor may be a racist, but was not an
22

allegation that the employer was engaging in an unlawful employment practice. Id.
at 1313. As to the comment that “this is a case of ethnocism [sic.], which should
be investigated immediately,” the Court assumed that the plaintiff intended to
allege discrimination (not being familiar with the word “ethnocism”), but held that
“a vague charge of discrimination in an internal letter or memorandum is
insufficient to constitute opposition to an unlawful employment practice.” Id.
An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination. In our view, such would constitute an intolerable intrusion into the workplace.
Id. Thus, the Court concluded that the plaintiff’s letter did not fall under the
parameters of the opposition clause and, therefore, the plaintiff had not established
his prima facie case of retaliatory harassment.12 Id. at 1313-14.
12In an unpublished opinion, the Sixth Circuit arrived at a similar conclusion when analyzing another employee’s letter. In Willoughby v. Allstate Ins. Co., 2004 U.S. App. LEXIS 14904 (6th Cir. July 14, 2004), the white employee brought suit alleging, in part, that Allstate retaliated against him because he sent them a letter asserting reverse race discrimination. In its analysis of this claim, the Court looked at a part of the subject letter, which mentioned previous sexual harassment complaints against another employee, but determined that the plaintiff was trying to impeach the other employee’s credibility (for making a complaint about the plaintiff’s similar conduct), rather than complaining about unequal treatment. Id. at *6. The Court also highlighted the following language from the letter:
[An incident for which the plaintiff was disciplined] did not start anywhere close to being a racial event, but for some reason we have managed to escalate it to that level. Let me give you a few facts for thought. The ASD staffing is currently 56% African American. Of the last 12 employees to leave/terminate from ASD, 11 were white.
23

Just as in Booker, the present facts set forth, at most, merely a vague charge of age discrimination. The mere reference to an “over 40 year old man” did not catch the eye of the HR Director as warranting discussion about discrimination allegations and, similarly, does not catch the eye of the Court as asserting an opposition to an unlawful employment practice. Because the July 29 e-mail did not convey anything more than a vague charge of age discrimination, which is insufficient to constitute an opposition to a practice made unlawful by the ADEA, Allmond did not engage in protected conduct by asserting age discrimination opposition.
Because the Plaintiff has not set forth a genuine issue of material fact as to the first prong of its prima facie case of retaliatory discrimination (opposition to protected conduct), based on either an assertion of sex or age discrimination opposition, the Defendants’ Motion for Summary Judgment (Doc. #20) is SUSTAINED.
It might be interesting to look at their exit interviews as a group, rather than one disgruntled employee at a time. Id. at **6-7. Like the Booker Court, this Court concluded that this language contained merely a “vague charge of discrimination,” which was “insufficient to constitute opposition to an unlawful employment practice,” and thus affirmed the district court’s grant of summary judgment in favor of Allstate. Id. at *7 (quoting Booker, 879 F.2d at 1313).
24

VI CONCLUSION The Defendants’ Motion for Summary Judgment (Doc. #20) is SUSTAINED.
The Defendants’ Motion to Strike Certain Assertions and Materials (Doc. #25) and the Plaintiff’s Motion to Strike Affidavits (Doc. #51) are SUSTAINED, in part, and OVERRULED, in part. Judgment is to be entered on behalf of the Defendants and against the Plaintiff.
The above captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

September 22, 2008
Copies to: Counsel of record

/s/ Walter Herbert Rice ____________________________________ WALTER HERBERT RICE, JUDGE UNITED STATES DISTRICT COURT

25

 
 Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 1 of 8 PAGEID #: 2815

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, vs.
UNITRIN SPECIALTY, et al. Defendants.

: : : Case No. 3:06cv302 : JUDGE WALTER HERBERT RICE :

DECISION AND ENTRY OVERRULING DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES (DOC. #57) Thomas Allmond was employed by Defendant Unitrin Speciality or its predecessor from 1999 until his termination in 2005. Unitrin Speciality is a business segment of Defendant Unitrin, Inc. Defendant Trinity Universal Insurance Company is a wholly owned subsidiary of Unitrin, Inc. (Defendants Unitrin Speciality, Unitrin, Inc., and Trinity Universal Insurance Company will be referred to collectively as “Unitrin”.) Plaintiff Equal Employment Opportunity Commission (“EEOC) brought suit against Unitrin, on behalf of Allmond, alleging retaliation for having complained of age and sex discrimination, in violation of Title VII and the Age Discrimination in Employment Act (“ADEA”). In a decision dated September 22, 2008, this Court ruled in favor of the Defendants on their Motion for Summary Judgment. Doc. #54. Therein, the Court

Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 2 of 8 PAGEID #: 2816
determined that the case was to be decided in the context of Title VII’s opposition clause. Factually, Allmond sent his supervisor an e-mail that fairly clearly set forth an opposition to what he perceived to be sex discrimination, but then he immediately recanted the same, in both conversation and a subsequent e-mail. Unitrin terminated him two weeks later, based on several factors, including the initial e-mail. In the summary judgment decision, this Court concluded that, based on these facts (specifically to include the recanting of the initially voiced opposition), the Plaintiff had not set forth sufficient evidence to establish that he had engaged in protected conduct, at the time of his termination and, thus, had not satisfied a prima facie case of retaliation.
Subsequently, the Defendants filed a Motion for Attorney Fees, which is presently before the Court. Doc. #57. The Court will begin its analysis with a review of the applicable legal standard for assessing such motions and then apply that standard to the facts of the present case.
I. Legal Standard for Awarding Attorneys’ Fees The Defendants have moved for attorneys’ fees, under 42 U.S.C. § 2000e-
5(k).1 Doc. #57. Title VII allows a court to award reasonable attorney fees to a
1The Defendants have not moved for attorneys’ fees, under the ADEA. The ADEA incorporates certain provisions from the Fair Labor Standards Act, to include the attorney fees provision, but that provision only allows for recovery of fees for prevailing plaintiffs. 29 U.S.C. § 216(b) (incorporated into the age discrimination context by 29 U.S.C. § 626(b)). Nevertheless, courts have recognized, under the American common-law rule, that “attorney’s fees may be awarded against a party
2

Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 3 of 8 PAGEID #: 2817
prevailing party. 42 U.S.C. § 2000e-5(k). The Sixth Circuit instructs, however, that
[t]he standard for granting attorneys’ fees to a prevailing employer is more stringent than that for awarding attorneys’ fees to a prevailing employee. The employer may be awarded attorneys’ fees where the plaintiff’s claim was “frivolous, unreasonable, or without foundation,” or where the plaintiff continued to litigate after it became clear that her claim was frivolous, unreasonable, or without foundation. Balmer v. HCA, Inc., 423 F.3d 606, 615-16 (6th Cir. 2005) (quoting and citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417-18, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978)); see also Christiansburg, 434 U.S. at 421-22. Further, “[c]ourts should not conclude that a claim was groundless just because it was ultimately unsuccessful.” Balmer, 423 F.3d at 615. The Sixth Circuit emphasizes that “[d]efendants may recover fees for frivolous claims only” and that “[a]ttorneys’ fees should be awarded only in the most egregious of circumstances.” Id. at 616 (citing Gutierrez v. Denver Post, Inc., 691 F.2d 945, 948 (10th Cir. 1982); Gettings v. Bldg. Laborers Local 310 Fringe Bens. Fund, 349 F.3d 300, 310 (6th Cir. 2003)). Factors that should be considered when determining the propriety of awarding attorneys’ fees include, “(1) whether plaintiff presented sufficient evidence to establish a prima facie case; (2) whether defendant offered to settle the case; and (3) whether the trial court
who has proceeded in bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). The Defendants, in this case, have not proceeded on this theory, however, since they have made no allegations of bad faith.
3

Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 4 of 8 PAGEID #: 2818
dismissed the case prior to trial or held a full-blown trial on the merits.” Id. (citing EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3rd Cir. 1997)).
II. Analysis In the present case, the Defendants couch their argument in terms of the
three factors set forth above, pointing out that the Court previously determined that the Plaintiff did not present sufficient evidence to establish its prima facie case, that the Defendants offered to settle the case (during mediation negotiations with Magistrate Judge Ovington), and that the Court decided the case on summary judgment, rather than allowing the case to proceed to trial. Docs. #57, #61. The Plaintiff responds by arguing that the three factors are merely part of the Court’s consideration and that the Court’s decision must be focused on the overarching question of whether this case was “frivolous”.
The Court starts by noting that the premise of each of the parties’ arguments is correct. As suggested by the Defendants, the three aforementioned factors weigh against the Plaintiff. However, the Court notes that, as the Plaintiff contends, these are merely factors to be considered in determining whether the Plaintiff’s case was frivolous and not the sole determiners of such an outcome.2
2The Court pauses here to note that a significant number of cases, in this Court, are decided on summary judgment (rather than proceeding to settlement or trial), because the plaintiffs do not satisfy at least one element of their prima facie cases. Further, throughout the course of many of these cases, the defendants have entered into settlement negotiations. Finding that all such prevailing
4

Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 5 of 8 PAGEID #: 2819
See Balmer v. HCA, Inc., 423 F.3d 606, 616 (6th Cir. 2005). In weighing whether
the Plaintiff’s case was “frivolous”, the Court will consider those factors along
with the other considerations to which the parties point.
In its argument, the Defendants point out that the Plaintiff was aware of the
law and facts (to include Allmond’s recantations of his oppositional e-mail
communication), which remained unchanged before and during the pendency of the
case, thus indicating (argues the Defendants) that the Plaintiff continued to litigate
defendants would be entitled to attorneys’ fees would run counter to the Sixth Circuit’s instruction that such fees may only be granted for “frivolous” claims and “in the most egregious of circumstances,” however. Balmer v. HCA, Inc., 423 F.3d 606, 616 (6th Cir. 2005).
On another note, in further support of their present contention, the Defendants are seemingly arguing that the Sixth Circuit has upheld an award of attorney fees on behalf of the prevailing defendant, based solely on the plaintiff’s inability to establish a prima facie case. In so doing, the Defendants argue that, in Haynie v. Ross Gear Div. of TRW, 799 F.2d 237 (6th Cir. 1986), vacated as moot, 482 U.S. 901, 107 S. Ct. 2475, 96 L. Ed. 2d 368 (1987), the Sixth Circuit “equat[ed] the plaintiff’s inability to establish a prima facie claim with a ‘totally baseless’ case.” Doc. #57 at 4. While the Haynie Court did determine that the plaintiff’s claim against the union was “totally baseless,” it did so based on the specific facts of that case (e.g., “the union did exceedingly well” by the plaintiff, the union’s representative was “obviously sympathetic” toward the plaintiff, the approach the union followed before the arbitrator was approved in advance by the plaintiff, the union gave satisfactory post-arbitration assistance to the plaintiff). After reviewing these facts, the Court determined that the plaintiff “was unable to make a prima facie case against the union because no such case existed” and that her claim against the union was, thus, “totally baseless”. Id. at 242. This case cannot be read, however, for the overly general proposition that the plaintiff’s failure to establish her prima facie case, in and of itself, equated to her having a totally baseless claim. (Footnote to this footnote: Despite the fact that the Supreme Court vacated the Haynie decision as moot, 482 U.S. 901, the Sixth Circuit has continued to rely on its decision, in subsequent cases. E.g., Balmer v. HCA, Inc., 423 F.3d 606, 617 (6th Cir. 2005)).
5

Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 6 of 8 PAGEID #: 2820
this case after it became clear that its claim was frivolous, unreasonable, or without foundation. In support of their position, the Defendants cite Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985), for the proposition that “courts have awarded attorneys[‘] fees to prevailing defendants where no evidence supports the plaintiff’s position or the defects in the suit are of such magnitude that the plaintiff’s ultimate failure is clearly apparent from the beginning or at some significant point in the proceedings after which the plaintiff continues to litigate.”
The Plaintiff, on the other hand, argues that it had an “arguable basis” for pursuing its claim, given that the Court recognized that Allmond’s first e-mail fairly clearly set forth an opposition to what Allmond perceived to be sex discrimination and that his supervisor admitted that the e-mail was a factor in his firing. The Plaintiff also argues that the Defendants have pointed to nothing to indicate that the Plaintiff’s failure in this litigation was “clearly apparent”, alleging that the Defendants did not even raise the issue that decided the case (i.e., that Allmond had not opposed an unlawful practice at the time of his termination) in their summary judgment brief.3
3Both parties also dispute the significance of the Defendants previously providing the Plaintiff copies of Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989) and Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607, 2004 U.S. App. LEXIS 18172 (6th Cir. Aug. 24, 2004), with the Defendants claiming that they “provided to the EEOC the governing Sixth Circuit authority that foreclosed its case” (Doc. #61 at 2) and the Plaintiff questioning to what extent both the Defendants and the Court relied on these cases in the summary judgment decision (Doc. #60 at 6-7). The Court agrees with the Plaintiff, on this point. The Court did not cite Bell, in its summary judgment decision. Doc.
6

Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 7 of 8 PAGEID #: 2821
The Court finds the Plaintiff’s arguments to be sound for two reasons. First,
there arguably existed facts that supported the Plaintiff’s position, given the
supervisor’s admission that Allmond’s initial e-mail had played a role in the
termination decision. Second, and most significantly, the Defendants did not raise
the issue that ultimately decided the case in their summary judgment brief, thus
indicating that the Plaintiff’s ultimate failure was not “clearly apparent” from the
beginning (at least to the Defendants) and was also not clearly apparent from some
significant point in the proceedings after which the Plaintiff continued to litigate.
See Doc. #20.4 (It was not until the Defendants filed their reply memorandum that
they first made the clear assertion that, by withdrawing his e-mail allegations,
Allmond also withdrew his charges of discrimination. Doc. #24 at 3, 4.5) To
reiterate what the Sixth Circuit stated in Smythe-Cramer Co., courts have awarded
#54. As to Booker, the Court relied on it for general propositions of longestablished law, as well as citing it in support of the part of its decision pertaining to the ADEA claim. Id. at 18, 22-24. Since the Defendants have not moved for attorney fees, with regard to the ADEA claim, as previously noted, the Court finds their arguments pertaining to these cases to be without merit.
4The Defendants argued that Allmond’s initial e-mail did not constitute protected activity, because it was a “false statement”, with the focus being on the fact that Allmond lied therein, rather than on the legal conclusion that he withdrew his statement that constituted an opposition to sex discrimination. Doc. #20 at 1113. The Defendants further asserted that the initial e-mail did not meet the standard of reasonableness required of oppositional conduct, but once again did not hone in on the act of the withdrawal of that e-mail. Id. at 13-15.
5Because the Defendants raised several new issues in their reply memorandum, the Plaintiff failed a Motion for Leave to File Surreply Brief (Doc. #26), which the Court sustained (Not. Order, dtd. Dec. 27, 2007).
7

Case: 3:06-cv-00302-WHR Doc #: 65 Filed: 08/31/09 Page: 8 of 8 PAGEID #: 2822

attorneys‘ fees either “where no evidence supports the plaintiff’s position” or “the defects in the suit are of such magnitude that the plaintiff’s ultimate failure is clearly apparent from the beginning or at some significant point in the proceedings after which the plaintiff continues to litigate.” Smythe-Cramer Co., 754 F.2d at 183. Because this Court finds that evidence arguably existed to support the Plaintiff’s position and that the defects in the suit were not of such magnitude that the Plaintiff’s ultimate failure was clearly apparent from the beginning or at some significant point in the proceedings after which the Plaintiff continued to litigate, the Court does not find that the present case was frivolous or presented “the most egregious of circumstances”, which would warrant the award of attorney fees to the Defendants. Therefore, the Defendants’ Motion for Attorneys’ Fees (Doc. #57) is OVERRULED.

III. Conclusion The Defendants’ Motion for Attorneys’ Fees (Doc. #57) is OVERRULED.

August 31, 2009
Copies to: Counsel of record

/s/ Walter Herbert Rice WALTER HERBERT RICE, JUDGE UNITED STATES DISTRICT COURT

8

 
 6/6/2017

CM/ECF LIVE - U.S. District Court:OHSD
U.S. District Court Southern District of Ohio (Dayton) CIVIL DOCKET FOR CASE #: 3:06-cv-00302-WHR

CLOSED,LC1

Equal Employment Opportunity Commission v. Unitrin Specialty et al Assigned to: Judge Walter H. Rice Cause: 42:1981 Civil Rights

Date Filed: 09/29/2006 Date Terminated: 09/22/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Kenneth L Bird Equal Employment Opportunity Commission 101 West Ohio Street Suite 1900 Indianapolis, IN 46204-4203 (317) 226-7204 Fax: (317) 226-5571 Email: kenneth.bird@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jo Ann Farnsworth EEOC Suite 1900 101 West Ohio Street Indianapolis, IN 46204-4203 317/226-7949 Fax: 317/226-5571 Email: JoAnn.Farnsworth@EEOC.gov ATTORNEY TO BE NOTICED

Laurie A. Young EEOC 101 West Ohio Street Suite 1900 Indianapolis, IN 46204-4203 317/226-7202 Fax: 317/226-7203 Email: Laurie.Young@EEOC.gov ATTORNEY TO BE NOTICED

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?840317416406678-L_1_0-1

Michelle Eisele EEOC 101 West Ohio Street Suite 1900 Indianapolis, IN 46204-4203 317/226-7059 Fax: 317/226-5571
1/9

6/6/2017

CM/ECF LIVE - U.S. District Court:OHSD
Email: Michelle.Eisele@EEOC.gov ATTORNEY TO BE NOTICED

V. Defendant Unitrin Specialty a business segment of Unitrin, Inc.
Defendant Trinity Universal Insurance Co. a wholly owned subsidiary of Unitrin, Inc.

represented by David G Holcombe Baker & Hostetler 312 Walnut Street Suite 3200 Cincinnati, OH 45202 513-929-3400 Fax: 513/929-0303 Email: dholcombe@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane P Chapman Baker & Hostetler LLP 3200 National City Center 1900 E. 9th Street Cleveland, OH 44114-3485 216 861 7343 Fax: 216 696 0740 Email: dchapman@bakerlaw.com ATTORNEY TO BE NOTICED
M Scott McIntyre Baker & Hostetler LLP 312 Walnut Street Suite 3200 Cincinnati, OH 45202 513-852-2622 Fax: 513-929-0303 Email: smcintyre@bakerlaw.com ATTORNEY TO BE NOTICED
represented by David G Holcombe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane P Chapman (See above for address) ATTORNEY TO BE NOTICED
M Scott McIntyre (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?840317416406678-L_1_0-1

2/9

6/6/2017
09/29/2006

CM/ECF LIVE - U.S. District Court:OHSD
1 COMPLAINT against Unitrin Specialty and Trinity Universal Insurance Co. ﬁled by Plaintiff Equal Employment Opportunity Commission.(kopf1, ) (Entered: 09/29/2006)

09/29/2006

2 ***If this case is referred, it will be Magistrate Judge Sharon L. Ovington. (kopf1, ) Modiﬁed on 12/7/2007 to delete attachments - document 3 uploaded in error (sc1, ). (Entered: 09/29/2006)

09/29/2006

3 Summons Issued as to Unitrin Specialty and Trinity Universal Insurance Co. (kopf1, ) (Entered: 09/29/2006)

09/29/2006

4 Notice by Clerk of Southern District of Ohio of Pro Hac Vice Rules as to Attorneys Laurie A. Young, Michelle Eisele and Kenneth L. Bird. (kopf1, ) (Entered: 09/29/2006)

11/03/2006

5 SUMMONS Returned Executed Trinity Universal Insurance Co. served on 10/30/2006, answer due 11/20/2006. (Bird, Kenneth) (Entered: 11/03/2006)

11/14/2006

6 SUMMONS Returned Executed Unitrin Specialty served on 10/30/2006, answer due 12/11/2006. (Bird, Kenneth) (Entered: 11/14/2006)

11/15/2006

7 STIPULATION Extension of Time to Answer or Otherwise Respond to Plaintiff's Complaint by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Holcombe, David) (Entered: 11/15/2006)

11/15/2006

8 NOTICE of Appearance by David G Holcombe Defendants Unitrin Specialty, Trinity Universal Insurance Co. (Holcombe, David) (Entered: 11/15/2006)

12/06/2006

9 NOTICE of Appearance by M Scott McIntyre Defendants Unitrin Specialty, Trinity Universal Insurance Co. (McIntyre, M) (Entered: 12/06/2006)

12/06/2006 10 NOTICE of Appearance by M Scott McIntyre Defendants Unitrin Specialty, Trinity Universal Insurance Co. (McIntyre, M) (Entered: 12/06/2006)

12/11/2006

11 ANSWER to Complaint by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Holcombe, David) (Entered: 12/11/2006)

12/11/2006

12 Corporate Disclosure Statement by Trinity Universal Insurance Co.. (Holcombe, David) (Entered: 12/11/2006)

12/11/2006

13 Corporate Disclosure Statement by Unitrin Specialty. (Holcombe, David) (Entered: 12/11/2006)

12/12/2006 14 NOTICE of Appearance by Kenneth L Bird Plaintiff Equal Employment Opportunity Commission (Bird, Kenneth) (Entered: 12/12/2006)

01/04/2007

Set/Reset Hearings: Pretrial Conference set for Thursday, 2/15/2007 at 8:30 AM by telephone before Walter H Rice. Prior to the pretrial conference counsel must comply with the MANDATORY DISCLOSURE RULES of Fed. R. Civ. P. 26(a)(1) and the MANDATORY, pre-preliminary pretrial conference between counsel, required by Fed. R. Civ. P. 26(f). The Report must be ﬁled 7 DAYS PRIOR TO THE CONFERENCE. Pretrial procedures and forms can be found at our website at www.ohsd.uscourts.gov. Should more attorneys be actively involved than those listed on the Court's docket, please notify Karla Evans, at 937-512-1500, immediately, to include the additional attorneys in the Preliminary Pretrial Conference. If you wish a number other than your ofﬁce number called, please advise 24 hours preceding the conference. (kse1, ) (Entered: 01/04/2007)

01/10/2007

15 MOTION for Leave to Appear Pro Hac Vice government attorneys without ﬁling fee. Filing fee $ 200. by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 1 Certiﬁcate of Good Standing of Kenneth Lee Bird# 2 Exhibit # 2 Certiﬁcate of Good Standing of Laurie Ann Young# 3 Exhibit # 3 Certiﬁcate of Good Standing of Michelle Eisele)(Bird, Kenneth) (Entered: 01/10/2007)

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01/18/2007 01/26/2007 01/30/2007 02/15/2007
08/13/2007 08/15/2007 08/15/2007 08/30/2007 11/01/2007 11/01/2007 11/02/2007 11/30/2007
12/06/2007 12/07/2007 12/11/2007 12/21/2007

CM/ECF LIVE - U.S. District Court:OHSD
NOTATION ORDER sustaining 15 Motion for Leave to Appear . Signed by Judge Walter H Rice on 1/18/07. (ep1, ) (Entered: 01/18/2007)
16 NOTICE of Appearance by Diane P Chapman Defendants Unitrin Specialty, Trinity Universal Insurance Co. (Chapman, Diane) (Entered: 01/26/2007)
17 RULE 26(f) REPORT of the Parties by Plaintiff Equal Employment Opportunity Commission, Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Bird, Kenneth) (Entered: 01/30/2007)
Minute Entry for proceedings held before Judge Walter H Rice : Initial Pretrial Conference held on 2/15/2007. Final Pretrial Conference by telephone set for Tues. 5/13/2008 at 5:00 pm; Jury Trial (4 days) set for Tues. 5/27/2008 at 9:00 am; a Scheduling Order will be entered by Judge Walter H. Rice. (kse1, ) (Entered: 02/16/2007)
18 Joint MOTION for Status Conference by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Holcombe, David) (Entered: 08/13/2007)
NOTATION ORDER sustaining 18 Joint Motion for Status Conference. Signed by Judge Walter H Rice on 8/14/07. (ep1, ) (Entered: 08/15/2007)
Set Hearings:Status Conference set for Thursday, 8/30/2007 at 4:45 PM by telphone before Walter H Rice. (ep1, ) (Entered: 08/15/2007)
Minute Entry for proceedings held before Judge Walter H Rice : Telephone Conference held on 8/30/2007. (Court Reporter None Present.) (sc1, ) (Entered: 08/30/2007)
19 MOTION for Leave to File Documents Under Seal by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Holcombe, David) (Entered: 11/01/2007)
20 MOTION for Summary Judgment by Defendants Unitrin Specialty, Trinity Universal Insurance Co..Responses due by 11/26/2007 (Holcombe, David) (Entered: 11/01/2007)
NOTATION ORDER sustaining 19 Motion for Leave to File. Signed by Judge Walter H Rice on Friday 11/2/2007. (ag1, ) (Entered: 11/02/2007)
21 RESPONSE in Opposition re 20 MOTION for Summary Judgment ﬁled by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A: Excerpts from deposition of Thomas Allmond (part 1 of 2)# 2 Exhibit B: Excerpts from deposition of Thomas Allmond (part 2 of 2)# 3 Exhibit C: Excerpts from deposition of Lisa Bage# 4 Exhibit D: Excerpts from deposition of Mike Foley# 5 Exhibit E: Excerpts from deposition of Dan Maloney# 6 Exhibit F: Excerpts from deposition of John Mullen# 7 Exhibit G: Declaration of Thomas Feiertag# 8 Exhibit H: Answer to Interrogatories 10 and 11) (Bird, Kenneth) (Entered: 11/30/2007)
22 MOTION for Extension of Time to File Response/Reply as to 21 Response in Opposition to Motion,, New date requested 12/21/2007. by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Holcombe, David) (Entered: 12/06/2007)
NOTATION ORDER sustaining 22 Motion for Extension of Time to File Response/Reply. Signed by Judge Walter H Rice on Friday 12/7/2007. (ag1, ) (Entered: 12/07/2007)
23 Joint MOTION & Memorandum in Support of Referral to Mediation by Plaintiff Equal Employment Opportunity Commission, Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Holcombe, David) (Entered: 12/11/2007)
24 REPLY to Response to Motion re 20 MOTION for Summary Judgment ﬁled by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit

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Allmond Deposition Excerpts# 2 Exhibit Allmond 2005 Evaluation# 3 Exhibit Fox vs. Eagle Distributing Co.) (McIntyre, M) (Entered: 12/21/2007)

12/21/2007

25 MOTION to Strike 21 Response in Opposition to Motion,, by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit Deposition Excerpts# 2 Exhibit Thompson. v. DACCO, INC.# 3 Exhibit Plaintiff's Voluntary Initial Disclosures) (McIntyre, M) (Entered: 12/21/2007)

12/25/2007

26 MOTION for Leave to File Surreply Brief in Opposition to Defendants' Motion for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 12/25/2007)

12/25/2007

27 RESPONSE in Opposition re 25 MOTION to Strike 21 Response in Opposition to Motion,, MOTION to Strike 21 Response in Opposition to Motion,, ﬁled by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Letter (with redactions) from Thomas Allmond to the EEOC# 2 Excerpts from the Deposition of Thomas Allmond# 3 Excerpt from the Deposition of Lisa Bage) (Bird, Kenneth) (Entered: 12/25/2007)

12/27/2007

NOTATION ORDER SUSTAINING PLAINTIFF'S MOTION FOR LEAVE TO FILE SURREPLY BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 26 . Signed by Judge Walter H Rice on 12/26/07. (kopf1, ) (Entered: 12/27/2007)

12/28/2007

Judge Sharon L Ovington added. (kopf1, ) (Entered: 12/28/2007)

12/28/2007

NOTATION ORDER SUSTAINING JOINT MOTION FOR AND MEMORANDUM IN SUPPORT OF REFERRAL TO MEDIATION 23 ; CAPTIONED CAUSE WILL BE REFERRED TO MAGISTRATE JUDGE SHARON L. OVINGTON FOR MEDIATION WITH SUGGESTED DATES OF FEBRUARY 5TH OR 6TH, 2008. Signed by Judge Walter H Rice on 12/27/07. (kopf1, ) (Entered: 12/28/2007)

01/04/2008

28 Supplemental Memorandum Opposing Defendants' Motion for Summary Judgment (Dkt. No. 20) ﬁled by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 01/04/2008)

01/07/2008

29 RESPONSE in Support re 25 MOTION to Strike 21 Response in Opposition to Motion,, MOTION to Strike 21 Response in Opposition to Motion,, ﬁled by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit A - Hearsay Opinion chart) (McIntyre, M) (Entered: 01/07/2008)

01/14/2008 30 ORDER FOR COURT-CONDUCTED MEDIATION. Signed by Judge Sharon L Ovington on 01/14/08. (phil1, ) (Entered: 01/14/2008)

01/23/2008

31 Unopposed MOTION to Amend/Correct to Substitute Declaration by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Amended Declaration of Thomas Feiertag) (Bird, Kenneth) (Entered: 01/23/2008)

01/23/2008 32 ORDER ON 31 MOTION TO SUBSTITUTE DECLARATION. Signed by Walter H Rice on 1/23/08. (bev1, ) Modiﬁed on 1/29/2008 to edit text (bev1, ). (Entered: 01/25/2008)

02/11/2008

33 NOTICE of Appearance by Jo Ann Farnsworth Plaintiff Equal Employment Opportunity Commission (Farnsworth, Jo Ann) (Entered: 02/11/2008)

04/07/2008

Set/Reset Hearings: Status Conference to discuss results of mediation and viability of 5/27/08 trial date set for 4/17/2008 at 8:30 AM by telephone before Walter H Rice. (kopf1, ) (Entered: 04/07/2008)

04/10/2008

Magistrate Judge Sharon L Ovington added. (sc1, ) (Entered: 04/10/2008)

04/10/2008 34 PRELIMINARY PRETRIAL CONFERENCE ORDER: Motions directed to pleadings due

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by 3/1/2007. Primary Expert due by 6/29/2007. Lay Witness due by 6/29/2007. Rebuttal Expert due by 8/31/2007. Discovery cut-off 10/1/2007. Proposed Final Pretrial Order due by 5/6/2008. Exhibit Submission for Trial or Hearing due by 5/9/2008. Final Pretrial Telephone Conference set for 5/13/2008 at 05:00 PM before Judge Walter H Rice. Jury Trial set for 5/27/2008 at 09:00 AM in Courtroom 1 before Judge Walter H Rice. Signed by Judge Walter H Rice on 4/10/2008. (sc1, ) (Entered: 04/10/2008)

04/11/2008

Magistrate Judge Sharon L Ovington no longer assigned to case. (davisj1, ) (Entered: 04/11/2008)

04/11/2008

35 MEDIATORS REPORT. Signed by Magistrate Judge Sharon L Ovington on 04/11/08. (sc1, ) (Entered: 04/11/2008)

04/15/2008

36 Response re 34 Preliminary Pretrial Order,, by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit A - Proposed Scheduling Order for Discussion) (McIntyre, M) (Entered: 04/15/2008)

05/13/2008

NOTICE TO COUNSEL: Next status conference is set for 5/14/2008 at 9:30 AM by telephone before Walter H Rice. (kopf1, ) (Entered: 05/13/2008)

05/22/2008

37 NOTICE by Defendants Unitrin Specialty, Trinity Universal Insurance Co. (Attachments: # 1 Afﬁdavit of Lisa K. Bage, # 2 Exhibit Bage A - Plaintiffs Depo Ex 3, # 3 Exhibit Bage B - Plaintiffs Depo Ex 8, # 4 Exhibit Bage C - Plaintiffs Depo Ex 19, # 5 Exhibit Bage D Plaintiffs Depo Ex 9, # 6 Afﬁdavit of Dan Maloney, # 7 Exhibit Maloney Ex A - Plaintiffs Depo Ex 9, # 8 Exhibit Maloney Ex B - Plaintiffs Depo Ex 10) (McIntyre, M) (Entered: 05/22/2008)

05/22/2008

38 NOTICE OF FILING DEPOSITION of Thomas Ray Allmond, Lisa Bage, Dan Maloney, John W. Mullen, and Mike Foley by Plaintiff Equal Employment Opportunity Commission, Defendants Unitrin Specialty, Trinity Universal Insurance Co. by Plaintiff Equal Employment Opportunity Commission, Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (McIntyre, M) (Entered: 05/22/2008)

05/22/2008

41 DEPOSITION of Thomas Ray Allmond taken on March 16, 2007 by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Allmond Depo Pt 2, # 2 Exhibit Exhibit 1 - Email to Lisa Bage dated 7/29/2005, # 3 Exhibit Exhibit 2 - Email to Dan Maloney dated 8/2/2005, # 4 Exhibit Exhibit 3 - Letter to EEOC Dallas ofﬁce, # 5 Exhibit Exhibit 4 - Application for Employment, # 6 Exhibit Exhibit 5 - Letter to John Mullen, # 7 Exhibit Exhibit 6 - 2005 Conﬂict of Interest Questionnaire, # 8 Exhibit Exhibit 7 - Essential Standards of Conduct for All Employees, # 9 Exhibit Exhibit 8 - Unitrin Email and Internet Code of Conduct, # 10 Exhibit Exhibit 9 - Unitrin Training Acknowledgment, # 11 Exhibit Exhibit 10 - Business Code of Conduct, # 12 Exhibit Exhibit 11 - Unitrin Property and Casualty Insurance Group Training, # 13 Exhibit Exhibit 12 - Conﬂict of Interest Questionnaire, # 14 Exhibit Exhibit 13 - Acknowledgment of Receipt of January 1, 2000 Revised Employee Guide, # 15 Exhibit Exhibit 14 Acknowledgement of reading Unitrin, Inc. E-mail and Internet Code of Conduct, # 16 Exhibit Exhibit 15 - Manager's Certiﬁcation under the Violent Crime Control Act of 1994, # 17 Exhibit Exhibit 16 - Acknowledgement of reading Ethics Code of Business Conduct, # 18 Exhibit Exhibit 17 - Notice to Employees of the E-mail, Internet Code of Conduct, # 19 Exhibit Exhibit 18 - Employee Patent and Conﬁdential Information Agreement, # 20 Exhibit Exhibit 19 - Authorization for Employment Offer, # 21 Exhibit Exhibit 20 - E-mail from Lisa Bage dated 11/16/2004, # 22 Exhibit Exhibit 21 - E-mail from Lisa Bage dated 6/09/2005, # 23 Exhibit Exhibit 22 - E-mail from Lisa Bage dated 6/08/2005, # 24 Exhibit Exhibit 23 - E-mail from Lisa Bage dated 7/15/2005, # 25 Exhibit Exhibit 24 - Email from Lisa Bage dated 6/08/2005 12:01 PM, # 26 Exhibit Exhibit 25 - Email from Lisa Bage dated 6/28/2005, # 27 Exhibit Exhibit 26 - Employee Manual for Unitrin Specialty Lines Insurance) (McIntyre, M) (Entered: 05/22/2008)

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05/22/2008

43 DEPOSITION of Lisa Bage taken on June 21, 2007 by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit 14 - March 23, 2006 Interview with Lisa Bage, # 2 Exhibit 15 - Unitrin Disciplinary Action Notice) (McIntyre, M) (Entered: 05/22/2008)

05/22/2008

45 DEPOSITION of Lisa Bage taken on June 22, 2007 by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit 16 - EEOC Charge No. 2212005-02389, # 2 Exhibit 17 - Essential Standards of Conduct for All Employees, # 3 Exhibit 18 - Employee Manual Unitrin Specialty Lines Insurance, # 4 Exhibit 19 - Email to Tom Allmond dated 11/16/2004, # 5 Exhibit 20 - Supervisor/Manager Performance Appraisal, 1/29/00, # 6 Exhibit 21 - Supervisor/Manager Performance Appraisal, 2/15/01, # 7 Exhibit 22 - Employee Record, Change Notice, # 8 Exhibit 23 - Supervisor/Manager Performance Appraisal, 2/15/02, # 9 Exhibit 24 - Supervisor/Manager Performance Appraisal, 3/18/03, # 10 Exhibit 25 - Supervisor/Manager Performance Appraisal, 3/19/04, # 11 Exhibit 26 - Supervisor/Manager Performance Appraisal, 4/1/05, # 12 Exhibit 27 Email to Tom Allmond dated 6/09/2005, # 13 Exhibit 28 - 2005 AY @ 2006) (McIntyre, M) (Entered: 05/22/2008)

05/22/2008

47 DEPOSITION of Mike Foley taken on June 21, 2007 by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit 13 - E-mails regarding CA MVR) (McIntyre, M) (Entered: 05/22/2008)

05/22/2008

49 DEPOSITION of Dan Maloney taken on June 21, 2007 by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 - EEOC Charge Number 221-200502389, # 2 Exhibit 2 - September 30, 2005 Headcount 722, # 3 Exhibit 3 - MRR 2005 Rating Worksheet, # 4 Exhibit 4 - MRR for Tom Allmond, 7/28/04, # 5 Exhibit 5 - MRR for Tom Allmond, 5/5/03, # 6 Exhibit 6 - MRR for Tom Allmond, 11/12/02, # 7 Exhibit 7 Leadership Mirror Feedback Report for Thomas Allmond, # 8 Exhibit 8 - Emails, # 9 Exhibit 9 - Emails regarding Interviews - Conﬁdential, # 10 Exhibit 10 - Notes of Dan Maloney, # 11 Exhibit 11 - Fax cover sheet; Request to Employer for Separation Information, # 12 Exhibit 12 - 2004 AY @ 2005) (McIntyre, M) (Entered: 05/22/2008)

05/22/2008

50 DEPOSITION of John W. Mullen taken on August 27, 2007 by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Mullen Depo Pt 2, # 2 Exhibit 3 - MRR 2005 Rating Worksheet, # 3 Exhibit 7 - Leadership Mirror Feedback Report, # 4 Exhibit 20 - Supervisor/Manager Performance Appraisal, 1/29/00, # 5 Exhibit 21 Supervisor/Manager Performance Appraisal, 2/15/01, # 6 Exhibit 22 - Employee Record Change Notice, # 7 Exhibit 27 - Email from Lisa Bage to Tom Allmond dated 6/09/2005, # 8 Exhibit 29 - Email from Tom Allmond to John Mullen dated 8/28/2001, # 9 Exhibit 30 Email to Tom Allmond regarding Re-Organization, # 10 Exhibit 31 - Response to Plaintiff's Second Request for Production of Documents No. 2, # 11 Exhibit 32 - Response to Plaintiff's Second Set of Interrogatories Nos. 10 and 11, # 12 Exhibit 33 - Response to Plaintiff's Second Request for Production of Documents Nos. 3 and 7, # 13 Exhibit 34 Response to Plaintiff's Second Request for Production of Documents No. 4, # 14 Exhibit 35 - Response to Plaintiff's Second Request for Production of Documents No. 8) (McIntyre, M) (Entered: 05/22/2008)

05/29/2008

51 MOTION to Strike 37 Notice (Other), Notice (Other) Afﬁdavits Attached to Defendants' Notice of Filing Afﬁdavits (Document 37) by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Excerpt (pages 17 and 18) from Deposition of Dan Maloney) (Bird, Kenneth) (Entered: 05/29/2008)

06/02/2008

52 RESPONSE in Opposition re 51 MOTION to Strike 37 Notice (Other), Notice (Other) Afﬁdavits Attached to Defendants' Notice of Filing Afﬁdavits (Document 37) MOTION to Strike 37 Notice (Other), Notice (Other) Afﬁdavits Attached to Defendants' Notice of Filing Afﬁdavits (Document 37) ﬁled by Defendants Unitrin Specialty, Trinity Universal

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06/04/2008
09/22/2008
09/22/2008 10/03/2008
10/03/2008 10/07/2008
10/07/2008
10/08/2008 10/17/2008 10/28/2008 11/14/2008 11/14/2008

CM/ECF LIVE - U.S. District Court:OHSD
Insurance Co.. (Attachments: # 1 Exhibit A - Smartt v. Clifton, # 2 Exhibit B - Messer v. Rohrer) (McIntyre, M) (Entered: 06/02/2008)
53 REPLY to Response to Motion re 51 MOTION to Strike 37 Notice (Other), Notice (Other) Afﬁdavits Attached to Defendants' Notice of Filing Afﬁdavits (Document 37) MOTION to Strike 37 Notice (Other), Notice (Other) Afﬁdavits Attached to Defendants' Notice of Filing Afﬁdavits (Document 37) ﬁled by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 06/04/2008)
54 DECISION AND ENTRY SUSTAINING DEFENDANTS MOTION FOR SUMMARY JUDGMENT 20 AND SUSTAINING, IN PART,AND OVERRULING, IN PART, DEFENDANTS MOTION TO STRIKECERTAIN ASSERTIONS AND MATERIALS 25 AND PLAINTIFFS MOTION TO STRIKE AFFIDAVITS 51 ;JUDGMENT TO BE ENTERED ON BEHALF OF DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY. Signed by Judge Walter H Rice on 9/22/2008. (jdf1) (Entered: 09/22/2008)
55 JUDGMENT in favor of Trinity Universal Insurance Co., Unitrin Specialty against Equal Employment Opportunity Commission. Signed by Judge Walter H Rice on 9/22/2008. (jdf1, ) (Entered: 09/22/2008)
56 MOTION for Taxation of Costs Against Plaintiff by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Exhibit Costs Ex A - Bill of Costs, # 2 Exhibit Costs Ex A1, # 3 Exhibit Costs Ex A2, # 4 Exhibit Costs Ex A3, # 5 Exhibit Costs Ex A4, # 6 Exhibit Costs Ex A5, # 7 Exhibit Costs Ex A6, # 8 Exhibit Costs Ex B - Chapman Decl) (McIntyre, M) (Entered: 10/03/2008)
57 MOTION for Attorney Fees by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (Attachments: # 1 Declaration of Counsel in Support of Motion for Attorneys' Fees) (McIntyre, M) (Entered: 10/03/2008)
NOTICE TO DEFENDANT COUNSEL REGARDING SUBMISSION OF MOTION TO TAX COSTS: the Clerk requires that a Bill of Costs Application be completed and submitted for review. The Bill of Costs Application/Form (AO 133) is located on the Court website (www.ohsd.uscourts.gov) under the "forms" section and is entitled "Bill of Costs" All documentation tendered with the initial Motion to Tax (Doc No 56) will be considered upon submission of the Bill of Costs application. A brieﬁng schedule upon the Bill of Costs Application will be ﬁled separately. (mkb1, ) (Entered: 10/07/2008)
58 NOTICE OF BILL OF COSTS - The following is the brieﬁng schedule for the bill of costs: Memoranda Contra by Plaintiffs - October 22, 2008, Reply in Support by Defendants - November 6, 2008. If Plaintiff fails to ﬁle a memoranda contra on or before October 22, 2008, the bill of costs will be taxed by the clerk on October 23, 2008. (sc1, ) (Entered: 10/07/2008)
59 NOTICE by Defendants Unitrin Specialty, Trinity Universal Insurance Co. of Filing Approved Form of Bill of Costs (Attachments: # 1 Exhibit - Bill of Costs Application/Form (AO 133)) (McIntyre, M) (Entered: 10/08/2008)
60 RESPONSE in Opposition re 57 MOTION for Attorney Fees ﬁled by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 10/17/2008)
61 REPLY to Response to Motion re 57 MOTION for Attorney Fees ﬁled by Defendants Unitrin Specialty, Trinity Universal Insurance Co.. (McIntyre, M) (Entered: 10/28/2008)
62 MEMORANDUM AS TO BILL OF COSTS TAXATION. (jdf1, ) (Entered: 11/14/2008)
63 BILL OF COSTS. (jdf1, ) (Entered: 11/14/2008)

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05/11/2009
05/19/2009
06/19/2009 08/31/2009

CM/ECF LIVE - U.S. District Court:OHSD
NOTICE of Hearing: Telephone Conference set for 5/19/2009 at 04:50 PM (EASTERN STANDARD TIME) before Judge Walter H Rice. The Court will initiate call. (tt1, ) (Entered: 05/11/2009)
NOTICE of Hearing on 57 MOTION for Attorney Fees : Telephone conference set for 6/23/2009 at 04:00 PM before Judge Walter H Rice. The Court will initiate the call. (tt1, ) (Entered: 05/19/2009)
NOTICE Doc #64 docketed in error - deleted this date. (gh1, ) (Entered: 06/19/2009)
65 DECISION AND ENTRY OVERRULING DEFENDANTS MOTION FOR ATTORNEYS FEES 57 . Signed by Judge Walter H Rice on 8/31/2009. (davisj1, ) (Entered: 08/31/2009)

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