IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v,

)

)

WELBORNE AUTOMOTIVE, INC.

)

formerly known as

)

NISSAN OF HICKORY, INC.

)

)

Defendant,

)

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

CIVIL ACTION NO, 5', 04cv ~al
COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION

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

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

appropriate relief to Paula Thompson, a female, who was adversely affected by such practices.

As alleged with greater particularity below, plaintiff, the Equal Employment Opportunity

Commission, alleges that defendant, Welborne Automotive, Inc. formerly known as Nissan of

Hickory, Inc., discriminated against Ms. Thompson by discharging her because of her sex.

JURISDICTION AND VENUE

I. 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) (l) 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 of1991, 42 U.S.c. § 1981a.

2. The employment practices alleged to be unlawful were committed within the

jurisdiction ofthe United States District Court for the Western District of North Carolina.

PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(f)(l) and (3) ofTitle VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Welborne Automotive, Inc. formerly known as Nissan of Hickory, Inc. ("Defendant"), has continuously been a North Carolina corporation doing business in the State of North Carolina and the City of Hickory and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) ofTitle VII, 42 U.S.c. §§ 2000e(b), (g) and (h).
STATEMENT OF Cl,AIMS 6. More than thirty days prior to the institution of this lawsuit, Paula Thompson filed a charge with the Commission alleging violations ofTitle VII ofthe Civil Rights Act hy Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. On or ahout November 4,2003, Defendant engaged in an unlawful employment practice at its Hickory, North Carolina automobile dealership in violation of Section 703(a)(1) of Title VII, 42 U.S.c. § 2000e-2(a)(I) by discharging Paula Thompson because of her sex, female. Specifically, around October 15,2003, Defendant hired Ms. Thompson as a sales manager at its Nissan of Hickory dealership. Approximately three weeks later, around November 4,2003, Defendant discharged Ms. Thompson after Defendant's owner learned that a woman had
2

been hired into the sales manager position occupied by Ms. Thompson. S. The effect of the practices complained of in paragraph 7 above has been to
deprive Paula Thompson of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex, female.
9. The unlawful employment practices complained of in paragraph 7 above were intentional.
10. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Paula Thompson.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in sex discrimination against women, including making employment decisions affecting women based on their sex. B. Order Defendant to institute and carry out policies, practices, and programs that provide equal employment opportunities for women and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant to make whole Paula Thompson by providing appropriate hack pay 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 the reinstatement of Paula Thompson or, in the altemative, an award of front pay.
3

D. Order Defendant to make whole Paula Thompson by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices complained of above, including hut not limited to job search expenses, in amounts to he determined at trial.
E. Order Defendant to make whole Paula Thompson by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of above, including but not limited to emotional pain, suffering, inconvenience, loss of earning capacity, loss of enjoyment of hfe, humiliation, loss of self-esteem and loss of civil rights, in amounts to be determined at trial.
F. Order Defendant to pay Paula Thompson punitive damages for its malicious and reckless conduct, as described above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Complaint.
"y,H, DATED this ~ day of December, 2004.
4

Respectfully submitted, ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 180 I L Street, N.W. Washington, D.C. 20507
}
( YNETTE A. BARNES V'lii; .'-Acting Regional Attorney (IJ.~ JESSICA DIXON Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, North Carolina 28202 (704) 344-6875 (direct dial for Jessica Dixon)
5

 
 IN THE UNITED STATES DISTRICT COU"RT WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION CIVIL ACTION NO. 5:04CV207

FI LED
STATESVILLE, N.C.
SEP 8 2005

EQUAL EMPLOYMENT OPPORTlJNITY )

COMMISSION,

}

Plaintiff

)

)

and

)

)

PAULA THOMPSON,

)

Plaintiff- Intervenor

)

)

u.s. DISTRICT COURT
W. DlST. OF NC
COMPLAINT IN
INTERVENTION

VS.

)

)

WELBORNE AUTOMOTIVE, INC.

)

formerly known as

)

NISSAN OF HICKORY, INC.,

)

)

Defendant.

)

------------.------~--------------~)

Plain ti ff- I ntervenor Paula Tholnpson (~~Thompson '~) alleges:

NATURE OF THE ACTION

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

Rights Act of 1991, to correct unlawful employnlent practices on the basis of sex and to provide

appropriate relief to Plaintiff-Intervenor Paula Thompson, a female1 who was adversely affected by such practices. As alleged wi th greater particularity below t Plaintiff-Intervenor alleges that

Defendant, Welborne Automoti ve~ Jnc., forn1er]y known as Nissan of Hickory, Inc.,

discrinlinated against Plaintiff-Intervenor by discharging her because of her sex.

JURISDICTION AND VENUE ~

1.

Under Ti tle VII. Thompson is a ~'party aggrievedH by the practices of the Defendant and

there has the right to intervene pursuant to 29 U.S.C. 2000e-2000e-5(t)( I). Jurisdiction

of this Court is invoked pursuant to 28 U.S.C. §§ 451; 1331,1337, 1343 and 1345. This

..... . . ". " .~~~",:"",

,~ . ..

.

. . . . ... .y .

__ ." _.____ . •• 0 . 4_'" ... .... .....·t ... ...-.,. ....... . .. . I_ ~ .

1Io+_'

_ _'

_

_~ .

H

_

-•

.......... _ . . .... . I .

.. . . .-U. _."""'_

- __ . .. . .. ~ ~ ...: ... . ..

action is authorized and instituted pursuant to Section 706(f) ( I) and (3) of Title VII of

the C~iYil Rights Act of ]964, as amended, 42 V.S.C. § 2000e.. 5(t) (1) and (3) C'Title

VlIlt), and Section ]02 of the ('ivil Rights Act of 1991, 42 U.S.C. § 1981 a.

1a. To the extent that claims are aUeged or asserted under the law of North Carolina, the

Court has supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a).

2.

The employnlent practices alleged to be unlawful were conlmitted within the

j urisd iction 0 f the Un ited States 0 istrict Court for the Western Oistrict of North Carol ina.

PARTIES L •
3. PJaintiff1 the Equal Elnployn1cnt Opportunity Commission (the t·Comnlission lf ), is the

agency of the United States of America charged with the administration, interpretation

and entorcelnent of Title VII and is expressly authorized to bring this action by Sections

706( f)( 1) and (3) of Title VII; 42 U.S.C. § 2000e-5(f)( 1) and (3).

3a. PlaintitT.. lntervenor is an adult fenlale citizen and resident of Mecklenburg County, North

Carolina. Plainti ff- Intervenor is entitled to intervene as a matter of right, pursuant to §

706(f)( I) of Title VII, 42 U.S.C. § 2000e-5(t)( I).

4. At all relevant times, Defendant Welborne Autonl0tive, Inc., formerly known as Nissan

of Hickory! Inc. (UDcfendanet)~ has continuously been a North Carolina corporation

doing business in the State of North Carolina and the City of Hickory and has

continuously had at least ti tteen employees.

5. At all relevant times, Defendant has continuously been an employer engaged in an

industry affecting commerce under Sections 701(b), (g) and (h) of Title VII l 42 U.S.C.
*~ 2000c(b), (g) and (h).

••

• - - • - • • • • -~ . -

• • _.o__ . . .. . _ .. . 'I .... _. _ ,_ ... .

•

• ~. . . .

•

•• • _

, ••

•

•

... . .

' 0'

•

• . . . . ,~ ...

,- , . .... . _ ... .

" . ... ............. .. .. .-.-.-. .... ,' .. _ .. _ ... .. .. _ . ..... . _. ______ , _

....

• __ •••• '...

••

_

. ......... .. """ '........."'-... '. - . .

e COlli!! 5: D4-t;;V-0020 7 DOc~rH41Il[ 8-1 Hied DBIO t i2<105 PII1)8 5 01
SIATEMENT OF CLA(~S 6. More than thirty days prior to the institution of this lawsuit, P1ainti ff- Intervenor Paula
Thompson fi led a c.harge "vi th the COlnmission alleging violations of Title VII of the
Civil Rights Act by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. On or about NOVC[llber 4, 2003, Defendant engaged in an unlawful employment practice at its Hickory. North Carolina automobile dealership in violation of Section 703(a)( 1) of Title VlI, 42 U.S.C. § 2000e-2(a)( l) by discharglng Plaintiff..lntervenor Thompson b~cause of her sex, female. Specitical1y, around October IS, 2003, Defendant hired Ms. Thompson as a sales manager at its Nissan of Hickory dealership. Approximately three weeks later, around November 4, 2003, Defendant discharged Ms. Thompson after
Defendant's owner learned that a woman had been hired into the sales manager position occupied by Ms. Thompson. X. The effect of the prac(ice~ cOlnplained of in paragraph 7 above has been to deprive
Plaintiff..llltervenor rrhon1pson of equal enlp10yment opportunities and otherwise adversely affect her status as an employee because of her sex, female. 9. The unlawful clnploymcnt practices c0111plained of in paragraph 7 above were intentional. 10. The un1awful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of PlaintitT-
Intervenor Tholllpson. 11. In addition, Defendants actions conlplained of in Paragraph 7 were in violation of the
public polic.y of the state of North Carolina as expressed in the Equal Employment

- _ _ .... .... ···;·· ~ . ~.M.!iI ...,... · .

- . - . _-.

•• 4 , •• •• , _ . ..... - .. -.~... • • • • • • • '-'H " , .. _ - ...... _ _ _ •• _ _ _ _ _ _ _ _ • _ _ . . . . . . . . . , •• , . ' ... ... . _ _ • • _ _ . . . . . . , ... _

' _ J i . .' ..... "' . . .....- . . . . , . . . . . ,.

_ _ ...

..

_ ... _ _ . _ ...... _ _ - . - _ _ ~_ ....... __ .. _I _ •• • ', .. . .. _ _ .. ...-- ...... ...--,. ... I

~II~ 5:04-i:'V-O(}207 OQ~ument 6-1 Flloo {)!l101l200S PalJIiI6 ota
Practices Act r~EEPA n)~ North Carolina General Statute § 143-422.1 el seq. 12. The unlawful cnlployment practices complained of in paragraph 7 above were done with
malice or with reckless inditTerence to the rights of Plaintiff..lntervenor Thompson as
protected by [EPA.
13. Plaintiff is entitled to punitive danlages under state law in an amount to be determined by the jury, in addition to the back pay, equitable relief~ and compensatory and punitive damages aJIowed under Title VII and 42 U.S.c. § 1981a. PRAYER FOR RELIEF \Vhereforc1 Plaintiff-Intervenor respectfully requests that this Court:
A. Grant a pennanent injunction enjoining Defendant, its officers, successors, assigns, and ,,11 persons in acti ve concert or participation with it, from engaging in sex discrimi nation against women, including making enlployment decisions affecting women based on their
sex.
B. Order Defendant to institute and carry out policies, practices, and programs that provide equal ernployment opportunities for women and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant to make whole Plaintiff-Intervenor Paula Thompson by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative rellef necessary to eradicate the effects of its unlawful employment practices~ including but not linl1tcd to the reinstatement of P1aintiff-Intervenor
Thompson or~ in the alternative, an award of front pay.
D. Order Defendant to make whole Plaintiff-Intervenor Thompson by providing compensation for past and future pecuniary losses resulting from the unlawful

.

_. ' • •• ---- - ... -

..... ........- - - - ..-

.. --- _ _ _; ... . ... . .... ~ . ..... .. . ..- , • .~ ,, ' ...... __ +. . . . . . . . r .... - ___ ' b

•

'

..... 1 0

~ .............. _

......,."

_

. . . _ _ _ - . . _ _ _ ...... .. .

.. "~- . e'., .r •. + t=zz

_.

.

. ...~ ... ~ _~

'41." 041 .. • • • •

•

employn1ent practices complained of above, including but not limited to job search

expenses, in amounts to be determined at trial.

E. Order Defendant to nlake whole Plaintiff-Intervenor Thompson by providing

compensation for past and future non-pecuniary losses resulting from the unlawful

practices complained of above, including but not limited to emotional pain, suffering,

inconvenience, loss of earning capacity, loss of enjoyment of life, humiliation, loss of

self-estcenl and loss of civil rights, in an10unts to be deternlined at trial.

F.

Order Defendant to pay Plaintiff..lntervcnor Thompson punitive damages under state and

federal law for its malicious and reckless conduct, as described above, in amounts to be

detenTI ined at trial.

G. Grant such further reHef as the Court deems necessary and proper in the public interest.

H. Award the Comm iss ion its costs 0 f th is acti on.

JURY TRIAL DEMAND I'll .......
'fhe Commission requests a jury trial on all questions of fact raised by its Complaint. This th~th day of~t)-l-}n.@,",/ 2005.

,
Vicki Brown Rowan

I

.~

. ~~~_ '-o..J•. &L

-

State Bar No. 14294

1515 Mockingbird Lane. Suite 400

Charlottei NC 28209 (704) 525-4110

Attorney for Plaintiff-Intervenor Paula Thompson

PI.lAINTIFF-INTERVENOR DEMANDS TRIAL BY JURY OF ALL ISSUES OF FACT

. . ~~ : .....:' ,'_" -

•

•

••

•• • . . .. -., ...... ... _ ... .-....... .&..,- .... 4- . . ..... .

. •

•.. · · - - - · -.. ~ . . . 'J.. iId 'If '-:'~ _ ...h · "·

...... ......_..__.._. __.___'_tt_...... __ '""' -..... L _~

5f *u."

' ..... __ -· . r n ....... - ....-.. , .----..~ ~.

. , _ ...... v1~ ... ,,0.10. .,.., .- .N _ ~ " ..

•

Cue !i:O... ·cv.{)0207 DtJ(;ul'lllIn' S-t FilM C61C11200~ Pave ~ 018
•
CERTIFICATE OF SERVICE I hereby certify that on 9~L} ~)-'1 ,2005, I have served the foregoing document on
all parties separately represented by nlailing a copy by first-class mail to their attorneys at the
fo Ilowi ng addresses:
Ms~ Kerith Cohen Equal Employment Opportunity Commission
l309 Annapolis Drive
Raleigh N'C 28608-2129
Ms. Maranda J. Freeman
Cranfill Sunlner & Hartzog 225 Hillsborough Street, Suite 300
Raleigh, NC 27611- 7808
• •
lcki B. Rowan Attorney for Plaintiff· Intervenor
State Bar No. 14294
15lS Mockingbird Lane, Suite 400 Charlotte, NC 28209
(704) 525-41 10

. . , ,vn ' ~~ ...: -.

? 'P e , . _• .1w...... ........ ..... .

. .- ~ ...........\ ~".." d"'''' ~---'- .

. .. .... .,.,--_.--

~. , .----~~~~ _ . _ -~-------- ... , . -

..

- - un __ ... ..........

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION CIVIL ACTION NO. 5:04 CV 207

U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

PAULA THOMPSON,

)

)

Plaintiff-Intervenor,

)

v.

)

)

WELBORNE AUTOMOTIVE, INC.

)

f/k/a NISSAN OF HICKORY, INC.,

)

)

Defendant.

)

_______________________________________ )

ORDER

THIS MATTER IS BEFORE THE COURT on “Defendant’s Motion to Compel

Discovery and for Sanctions” (Document No. 25) and “Defendant’s Memorandum of Law in

Support...” (Document No. 26), filed August 1, 2006; “Plaintiff-Intervenor’s Motion to Strike... and

Memorandum of Law in Support Thereof” (Document No. 27), filed August 14, 2006; “Plaintiff

EEOC’s Memorandum in Response to Defendant’s Motion to Compel and for Sanctions”

(Document No. 28) and “Declaration of Vicki B. Rowan” (Document No. 29), filed on August 18,

2006; “Defendant’s Response to Plaintiff’s Motion to Strike...” (Document No. 30), filed August

29, 2006; and “Defendant’s Reply to Plaintiff - EEOC’s Memorandum in Response...” (Document

No. 31), filed August 31, 2006. This matter has been referred to the undersigned Magistrate Judge

pursuant to 28 U.S.C. §636(b) and is now ripe for review.

Having fully considered the arguments, the record, and the applicable authority, the undersigned will grant in part and deny in part Defendant’s “Motion to Compel Discovery and for Sanctions” (Document No. 25) and deny in part and grant in part “Plaintiff-Intervenor’s Motion to Strike...” (Document No. 27).
I. FACTUAL AND PROCEDURAL BACKGROUND The Equal Employment Opportunity Commission (“Plaintiff”) brought this action in a “Complaint” (Document No. 1) on December 30, 2004, under Title VII of the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991, based on the alleged unlawful discharge of Paula Thompson (“Thompson” or collectively with Plaintiff, “Plaintiffs”). Plaintiff alleges unlawful employment practices, specifically related to Thompson’s sex, by Welborne Automotive, Inc., f/k/a Nissan of Hickory, Inc. (“Defendant”). Thompson filed a “Complaint in Intervention” (Document No. 10) on September 8, 2005. Plaintiffs seek identical relief, namely: (A) permanent injunction enjoining Defendant from engaging in sex discrimination; (B) order Defendant to institute and carry out policies, practices and programs that provide equal employment opportunities and eradicate effects of past and present unlawful practices; (C) appropriate back pay with prejudgment interest and reinstatement, or an award of front pay; (D) an award for pecuniary losses; (E) compensation for past and future nonpecuniary losses including emotional pain, suffering, inconvenience, loss of earning capacity, loss of enjoyment of life, humiliation, loss of self-esteem and loss of civil rights; (F) punitive damages for malicious and reckless conduct; (G) further relief as the Court deems necessary and proper; and (H) award the Commission its costs for this action. Based upon the Certification and Report of Initial Attorneys’ Conference and a Pretrial
2

Conference held on November 30, 2005, the undersigned entered a “Pretrial Order and Case Management Plan” (Document No. 19) on November 30, 2005. That Order set the following pertinent deadlines:
Discovery Completion - May 22, 2006, Mediation Deadline - May 22, 2006, Motions Deadline - June 22, 2006.
On May 20, 2006 the parties submitted a “Joint Motion to Extend the Discovery Period and Mediation and Dispositive Motion Deadlines” (Document No. 22). The undersigned adopted the parties’ agreed upon extensions by Order on May 22, 2006 (Document No. 23), which included the following new deadlines:
Discovery Deadline - July 31, 2006, Mediation Deadline - July 31, 2006, Dispositive Motion Deadline - September 15, 2006, Responses to Dispositive Motion Deadline - October 20, 2006. It is important to note that the original Case Management Plan did not include a “Dispositive Motion Deadline” and that the agreed-upon updated deadlines did not designate a new “Motions Deadline.”
II. DISCUSSION The issue before the Court is whether to grant Defendant’s Motion to Compel and to award Defendant sanctions (reasonable expenses and attorney’s fees) or whether the Defendant’s motion should be stricken for its alleged legal insufficiencies. In its Motion, Defendant seeks to have Plaintiffs supplement their response to the Defendant’s First Set of Interrogatories as follows: (1)
3

under #7, revise damage calculations; (2) under #11, identify every physician or other medical care provider visited or consulted by Thompson over the past ten (10) years; and (3) under #13, provide information regarding all employment since 1998. Defendant also seeks information from its First Set of Requests for Production of Documents to Thompson related to #7 - a request for copies of her W-2 and tax statements for the years 2001 to 2006.
Plaintiffs’ responses to the “Motion to Compel Discovery and Motion for Sanctions” essentially contend that the motion is legally insufficient. Plaintiffs argue that the motion should have been filed by July 31, 2006, that it should have certified that Defendant had conferred with opposing counsel in an attempt to resolve the underlying dispute pursuant to the Pre-Trial Order and the Local Rules, and that it should have included citations to authority. Plaintiffs also contend that Defendant failed to reserve the right to re-open Thompson’s deposition and had adequate opportunity at her deposition to ascertain the identity of her medical providers.
First, the confusion surrounding deadlines is understandable to the extent the Order extending deadlines was not entirely consistent with the Pre-Trial Order and Case Management Plan. The undersigned’s view is that it was not unreasonable for Defendant to file a motion to compel on August 1, 2006, just minutes after the close of discovery. A motion to compel prior to that deadline, may well have been considered premature. Furthermore, the Case Management Plan scheduled the motions deadline for one month after the discovery deadline. Since the extension did not name a new “Motions Deadline,” the parties’ confusion is understandable. The Defendant’s filing is consistent with the Court’s intent.
Next, Plaintiffs make much of Defendant’s failure to certify that it conferred with them regarding the discovery disputes. Although Defendant’s motion (Document No. 25) lacks the
4

certification required by Local Rule 7.1(A), the accompanying memorandum (Document No. 26) filed on the same date reports “[d]efense counsel hereby certifies that she has in good faith conferred with, and has further attempted to confer with Plaintiff and Plaintiff-Intervenor’s counsel in an effort to secure the response without Court action.” The undersigned finds that statement to satisfy the requirement of Local Rule 7.1(A) for Defendant’s “Motion to Compel....” Defendant’s subsequent memorandum (Document No. 31) also describes significant communications between the parties addressing the disputed discovery, which supports Defendant’s claim that the parties had met and had made good faith attempts to resolve areas of disagreement.
Likewise, Plaintiffs’ allegation that Defendant failed to include citations to authority pursuant to Section II. C. of the Case Management Plan falls short. The first sentence of Defendant’s motion cites Fed.R.Civ.P. 37(a) and Local Rule 7.1. Defendant’s memorandum cites Fed.R.Civ.P. 37(a) multiple times, as well as Fed.R.Civ.P. 26(b) twice. The undersigned finds these citations to authority sufficient.
The questions remaining are whether or what discovery the Plaintiffs should be required to produce, and whether sanctions are appropriate. The information Defendant seeks relates to Interrogatories #7, #11, and #13 and Request for Production of Documents #7.
Interrogatory #7 relates to Plaintiffs’ calculation for damages for lost wages. Following an exchange of information between the parties in July 2006, and representations made by Plaintiffs in their “...Memorandum...” (Document No. 27, p.7) as well as “Defendant’s Reply ...” (Document No. 31, p.4), it is likely this issue is moot. To the extent that supplementation of Interrogatory #7 has not occurred as stated by the parties in their briefs of August 2006 that it would be, Plaintiff should supplement its response as promised.
5

In Interrogatory #11, Defendant seeks the identity and basic information of every physician or medical provider Thompson visited or consulted for the past (10) ten years. Plaintiffs contend this request is overly broad and allege that Defendant intends to “embarrass, humiliate, and intimidate” Thompson. Defendant contends that Thompson’s testimony of suicide ideation as a result of leaving her employment by Defendants puts her health at issue. However, Defendant proposes in its “...Reply...” that “[i]f the plaintiff will stipulate that she will not testify, nor have any other witness testify about her suicidal ideation, then the Defendant would withdraw the request for medical information.” See Document No. 31, p.15.
Thus, if the Plaintiff so stipulates, the undersigned deems the request for supplementation of Interrogatory #11 to be moot. If Plaintiff declines to stipulate, then the undersigned agrees with Defendant that her complete medical records should be made available. However, in the event Plaintiff declines to stipulate to Defendant’s request, the undersigned will require the parties to file a proposed protective order, jointly if possible, and await the Court’s entry of a protective order prior to disclosure of the medical records.
Defendant’s request for more information regarding Interrogatory #13 and Request for Documents #7 are both related to employment records. Plaintiff contends this information is not relevant. Defendant argues first, that “relevance” is not the standard, but rather the applicable standard is whether the information is reasonably calculated to lead to the discovery of admissible evidence. Second, Defendant argues that Thompson’s prior work experience (or lack thereof) is directly related to its reasons for her termination.
“Defendant’s Reply...” (Document No. 31) further clarifies its request for this information. Specifically, Defendant asks that Plaintiffs provide either supplementation of #13, or the requested
6

tax information from 2001 and 2002, but not both. The undersigned agrees that Plaintiffs should provide evidence of Thompson’s prior employment as requested and clarified. The parties may include this information in their proposed protective order if the Plaintiffs wish to protect Thompson’s employment history.
Next, Defendant seeks to reopen Plaintiff’s deposition if new contradictory information is disclosed. The undersigned will deny this request without prejudice to the Defendant to refile at a later date if the parties are unable to resolve any differences that arise due to new information.
Finally, Defendant’s motion requests sanctions. The undersigned in its discretion does not find good cause shown for sanctions in this matter and will deny that request.
III. CONCLUSION IT IS, THEREFORE, ORDERED that “Defendant’s Motion to Compel Discovery and for Sanctions” (Document No. 26) is GRANTED IN PART and DENIED IN PART. “Defendant’s Motion to Compel...” supplementation to its discovery requests is GRANTED to the extent described in the Order above. Defendant’s request to reopen Thompson’s deposition is DENIED, without prejudice to refile, and Defendant’s motion for sanctions is DENIED. IT IS FURTHER ORDERED that “Plaintiff-Intervenor’s Motion to Strike...” (Document No. 27) is DENIED IN PART and GRANTED IN PART. As to the motion to strike the motion to compel, it is DENIED, and as to the motion to strike sanctions, it is GRANTED. IT IS FURTHER ORDERED that the parties submit a proposed protective order, jointly if possible, to the extent one is necessary to protect the discovery compelled by this Order. Such proposed order shall be submitted to the Court on or before April 20, 2006. SO ORDERED.
7

Signed: March 29, 2007 8

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION CIVIL ACTION NO.: 5:04CV207-V

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

Plaintiff,

)

)

and

)

)

PAULA THOMPSON,

)

Plaintiff-Intervenor,

)

)

v.

)

)

WELBORNE AUTOMOTIVE, INC.

)

formerly known as NISSAN OF HICKORY, )

INC.,

)

Defendant.

)

__________________________________________)

Memorandum and Order

THIS MATTER is before the Court on Defendant’s Motion For Summary Judgment, as well as all related memoranda and exhibits filed in support or in opposition. (Documents ##32 - 34, 37, 40)
I. Nature Of Case This civil action is brought by the Equal Employment Opportunity Commission (“EEOC” or “Commission”) on behalf of Plaintiff-Intervenor Paula Thompson (“Thompson”),1 and involves an allegation of gender discrimination in violation 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.

1 For convenience, the Court may refer to the EEOC and Thompson collectively as a single “Plaintiff.”
1

Plaintiff-Intervenor Paula Thompson is a former employee of Defendant Welborne Automotive, Inc., formerly known as Nissan of Hickory, Inc. (“Welborne”). Thompson was hired by former General Manager, Mike Thomas.2 (Thomas Dep. at 7.) Thompson was originally hired as a Used Car Sales Manager / Sales Manager at Defendant’s Nissan of Hickory automobile dealership. (Thompson Aff. ¶2) According to Thomas, Plaintiff’s main job was “to assist [Thomas], sell cars, keep up with the used cars and help [Thomas] in that range and with the sales force . . . .”3 (Thomas Dep. at 31.) Thompson worked for Welborne for approximately three weeks, or from October 15, 2003 through November 4, 2003. (Compl. ¶7; Compl. In Interv. ¶7; Thomas Dep. at 158-59.)
Mike Thomas testified that the late Robert C. Welborne (“Bob Welborne”),4 then-owner of the dealership, upon learning that Plaintiff Thompson had been hired as a sales manager, immediately questioned Thomas’s decision to hire a female as a sales manager. Thomas describes the following exchange:
• When I was standing outside one day right after, like the day after I had hired Paula, and one of the salesman was there . . . Mr. Welborne come[sic] out and he was like, “Come with me right now, come with me.” He drove up. He said “Come with me.” And I said – you know, I followed him into the office, and I was going to introduce him. I said, “Have you got a minute?” He said, “No. Come right now.” So we get in the office and he says, “Who in the hell is that in that tower?” I said, “That’s the
2 Thomas and Plaintiff had already known each other for about a year – they first met at Rock Hill Mazda. (Thomas Dep. at 7.)
3 There is some disagreement as to Thompson’s official job duties and responsibilities. Compare Defendant’s EEOC Responses with Chris Welborne’s version(s) of Plaintiff’s job description. (See Pl.’s Exh. 9 / EEOC Bates #121; C. Welborne Dep. at 124-26.)
4 Bob Welborne is deceased. 2

new sales manager.” “Oh, hell, no, it’s not. I’m not having a damn woman. She can sell but she’s not going to be a sales manager. That’s outside the question. That’s ridiculous and that’s not going to happen here. Do you understand that?” (Thomas Dep. at 12-13.) • Thomas said, “Well, Mr. Welborne, you hired me to run the store. You told me I could hire who I wanted to and she’s a good sales manager, and she’s one of the best I could find.” And that’s, he said, “That’s not going to happen. That is not going to happen. I’m not having a woman as a sales manager. Period. End of discussion.” (Thomas Dep. at 13.) • Chris Welborne was present for the same conversation. Bob Welborne asked Chris what he thought. Chris responded, “Well, daddy, you know, you hired Mike to run the store.” He says, “You know, if she can do her job, I don’t see where it matters, woman or not.” Bob Welborne then stated again, “No, hell, no, I just don’t like that. I just don’t like it.” (Thomas Dep. at 13.) • The conversation ended in agreement. After asking his son’s opinion once again, Bob Welborne shook Thomas’ hand and represented that he was willing to give Plaintiff a try. (Thomas Dep. at 14.)
According to Mike Thomas, within two or three days of this confrontation, Bob Welborne
in fact advised Thomas that his son, Chris Welborne, would be taking over the dealership, and that
Thomas would be working for Chris Welborne from now on. (Thomas Dep. at 15.) Thomas
testified that things were never the same between him and Bob Welborne from that point forward.
(Id. at 15-16.)
According to Mike Thomas, on October 23, 2003, he received a phone call from Bob Welborne. (Thomas Dep. at 18.) Thomas was on his way to his son’s ball game.5 (Id.) Viewed
5 According to Thomas, he negotiated a certain amount of flexibility when he was hired. He testified that he worked an extra day in advance each week so he could attend his son’s ball games on
3

in the light most favorable to the Plaintiff, Bob Welborne directed Thomas to “get back to the store right now, fire that girl, Paula [Plaintiff], and do the sales manager job like you’re supposed to be doing.” (Id.) Thomas indicated he would not fire Plaintiff because she had done nothing to warrant it and stated he would not return to work. (Id. at 18-19.) Bob Welborne repeated his demand – “Well, if you don’t go back now and fire her and take over the desk, then you won’t have a job.” (Id. at 19.) Thomas chose not to return to work to fire Plaintiff Thompson and, thus, considered himself terminated. (Id. at 159.)
On November 1, 2003, Tony LaRocca (“LaRocca”) and Tony Coletti (“Coletti”) were hired. (C. Welborne Dep. at 211 / Exh. 9) Defendant represents that around that time, the store was “very much failing and in need of major improvement, and what [Thompson] was doing just wasn’t motivating.” Chris Welborne testified that he brought LaRocca and Colletti in as a team to try and improve sales:
“I brought those two guys in as a team about that time, and [Thompson] was wanting to run the desk. I brought those two guys in to be on the desk because they were great closers, high energy, motivators, and I wanted [Thompson] to go in[sic] finance . . . .” (C. Welborne Dep. at 33.) Plaintiff Thompson claims that the same day Tony LaRocca was hired, he approached her and warned her that, although that was not the way LaRocca felt, Thompson “would not be a member of the “good ole boys club” there.” (Thompson Aff. ¶4) According to Thompson, LaRocca advised that “he considered [them] friends enough to tell [her] that [she] needed to start looking for a job.” (Id.) According to Plaintiff, when she told LaRocca she was not quitting, he told her that he
Thursday and Friday nights. (Thomas Dep. at 19.) 4

had already hired another used car manager (i.e., her replacement). (Id. ¶5) LaRocca apparently had already decided that Tony Coletti was going to replace Plaintiff. (LaRocca Dep. at 60.)
The facts surrounding Plaintiff’s discharge from employment on November 4, 2003, are in dispute. According to Plaintiff, Thompson was discharged as a result of her gender. (Compl. ¶7; Compl. In Interv. ¶7) According to Defendant Welborne, Thompson was not immediately fired or discharged. Welborne suggests instead that Thompson was first asked by LaRocca to move to another management position in finance. (LaRocca Dep. at 59; C. Welborne Dep. at 109.) LaRocca testified that Thompson refused Defendant’s reassignment proposals. (LaRocca Dep. at 59, 61.) According to LaRocca, this exchange took place before he was directed by Chris Welborne to fire Thompson.6 (Id. at 60.) After the conversation between LaRocca and Thompson, Thompson reportedly “got her pocketbook and left.” (C. Welborne Dep. at 57.)
Thompson contends she asked whether her termination had anything to do with the “good ole boys” discussion and LaRocca purportedly responded, “You know it does.” (Thompson Aff. ¶7) LaRocca denies implying that it was in Plaintiff’s best interest to resign. (LaRocca Dep. at 70.)
II. Procedural History The EEOC commenced this action on December 30, 2004. Thompson filed a Complaint In Intervention on September 8, 2005. The allegations within the two complaints are nearly identical except that Thompson also alleges that Defendant’s conduct is “in violation of the public policy of the state of North Carolina as expressed in the Equal Employment Practices Act (“EEPA”),” N. C.
6 LaRocca’s statement implies that he was told by Chris Welborne to fire Plaintiff. Chris Welborne does not recall any such discussion. According to Chris Welborne, on November 4, 2003, LaRocca had the authority to fire Thompson but Welborne’s understanding was that LaRocca was going to offer Thompson another position. (C. Welborne Dep. at 210-11.)
5

Gen. Stat. §143-422.1, et seq. (Compl. In Interv. ¶11) Plaintiffs seek issuance of a permanent injunction enjoining Defendant from engaging in sex
discrimination against women, including making employment decisions affecting women based on their sex, an order requiring Defendant to institute and carry out policies, practices, and programs that provide equal employment opportunities for women, back pay, reinstatement or front pay, compensation for past and future pecuniary losses (including job search expenses), compensation for past and future non-pecuniary losses (including emotional pain, suffering, inconvenience, loss of earning capacity, loss of enjoyment of life, humiliation, loss of self-esteem and loss of civil rights), punitive damages, and an award to the Commissioner for its costs associated with this action. (Compl. ¶¶A-H; Compl. In Interv. ¶¶A-H)
III. Standard Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue exists only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
IV. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. Title VII makes it “an unlawful employment practice for an employer . . . to discharge . . . or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” 42 U.S.C.
6

§2000e-2(a)(1). Under Title VII, a plaintiff may defeat summary judgment and establish a claim of intentional
discrimination through one of two avenues of proof. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (racial discrimination) (citing Hill v. Lockheed Martin Logistics Mgt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc)). “A plaintiff can survive a motion for summary judgment by presenting direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor such as [gender] motivated the employer’s adverse employment decision . . . Alternatively, a plaintiff may proceed under [the McDonnell Douglas7] “pretext” framework, under which the employee, after establishing a prima facie case8 of discrimination, demonstrates that the employer’s proffered permissible reason for taking an adverse employment action is actually a pretext for discrimination.” Id. (quoting Hill, 354 F.3d at 285.))
“Regardless of the type of evidence offered as support for [a] discrimination claim (direct, circumstantial, or evidence of pretext), or whether [the Plaintiff] proceeds under a mixed motive or single motive theory, [t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Hill, 354 F.3d at 286 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)).
7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 8 In order to establish a prima facie case of disparate treatment based upon sex or gender under Title VII, Plaintiffs must demonstrate: 1) that Thompson is a member of a protected class; 2) that Thompson was qualified for her job and performing satisfactorily; and 3) that Thompson suffered an adverse employment action. Karpel v. Inova Health Sys. Serv., 134 F.3d 1222, 1228 (4th Cir.1998); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
7

V. Analysis In this case, Plaintiff Paula Thompson and the EEOC allege that Thompson’s gender was a motivating factor in the challenged employment decision. In support, Plaintiff presents both direct and circumstantial evidence of intentional discrimination based upon gender. “[A]n unlawful employment practice is established when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000e-2(m). The impermissible factor alleged, namely, Plaintiff’s gender, need not have been the sole factor.9 Diamond, 416 F.3d at 318 (citing 42 U.S.C. §2000e-2(m)). As long as Plaintiff can show that her gender motivated the adverse action, she can establish an unlawful employment practice. Id. On this record, a mixed-motive analysis is proper given the evidence of a discriminatory animus or purpose presented by Plaintiff. See Diamond, 416 F.3d at 319 n.4 (“In the event that a plaintiff has direct evidence of discrimination or simply prefers to proceed without the benefit of the burden-shifting framework, she is under no obligation to make out a prima facie case.”) (internal citations omitted). A. Direct Evidence Of Intentional Discrimination Plaintiff produces direct evidence of intentional discrimination, namely, the discriminatory statements allegedly made by Bob Welborne. (Thompson Dep. at 195-98.) Paula Thompson, who did not personally observe or hear the purported discriminatory statements, testified that on the day Mike Thomas claims he was fired, he phoned Plaintiff to tell her about the alleged comments.
9 Under a mixed motive analysis, an employer’s defense that it would have terminated Plaintiff notwithstanding any alleged discriminatory purpose, if successful, limits Plaintiff’s remedies as opposed to barring recovery. 42 U.S.C. §2000e-5(g)(2)(B); Diamond, 416 F.3d at 317.
8

Defendant calls Plaintiff’s claim “ridiculous.” (Pls.’ Exh. 10) In an attempt to rebut Plaintiff’s allegations, Defendant Welborne represents that Thompson had three separate encounters with Bob Welborne prior to the date at issue. Defendant argues that if Welborne truly intended to fire Thompson based upon her gender, he would have done so immediately upon learning of her hire. Defendant’s argument is undermined by the relatively short time period (a total of three weeks) involved. Moreover, Defendant concedes that Thompson and Bob Welborne were not introduced during the first encounter (i.e., when Thompson was first spotted by Bob Welborne in the sales tower). Rather, formal introductions were made a few days later . (Thompson Dep. at 166.) The third face-to-face encounter occurred on October 23, 2003 – Mike Thomas’s last day of employment with Welborne.10 (Thompson Dep. at 167; Thomas Dep. at 158-59.)
According to Plaintiff, General Manager, Tony LaRocca , also implied that Plaintiff’s gender was a factor in Defendant’s employment decision by referencing the “good ole boys club.” The statements allegedly made by Tony LaRocca, if proven, corroborate Mike Thomas’ testimony that Plaintiff’s gender was problematic for Bob Welborne or, at minimum, a motivating factor in Welborne’s employment decision.
B. Regardless Of The Avenue Of Proof, Genuine Issues Of Material Fact Preclude Summary Judgment Plaintiff alleges the following genuine issues of material fact exist precluding summary judgment on her Title VII claim: 1) the extent to which Bob Welborne was involved in running the store when Thompson was allegedly fired, and the extent to which he participated in or influenced
10 In fact, if a jury found Mike Thomas’ version of the facts credible, a reasonable jury could conclude that it was the third engagement with the Plaintiff that triggered Bob Welborne’s alleged ultimatum to Mike Thomas.
9

the employment action at issue; and 2) the degree to which Thompson’s gender was a motivating factor for the challenged employment action. The Court agrees with Plaintiff on this score.11
i. Genuine Issue of Material Fact – Bob Welborne’s Influence On Challenged Employment Action
Defendant contends that even if the Court accepts that Bob Welborne made the
discriminatory statements attributed to him by Mike Thomas, Bob Welborne was no longer running
the company. The Court agrees with Defendant that Bob Welborne’s alleged discriminatory
comments are only relevant if he can be deemed a decision maker for (or agent of) Welborne for
purposes of Title VII. See Hill, 354 F.3d at 291. However, the record evidence is less than clear
on this point.
Plaintiff Thompson propounded an interrogatory that asked for the specific date on which
Bob Welborne was “last actively involved” in the management of the company. According to
Defendant’s interrogatory responses, “Mr. Welborne was actively involved in the management of
Nissan of Hickory until it was sold.” (Pl.’s Exh. 1 / Def.’s Resp. to Plaintiff-Intervenor’s First Set
Of Interrogs., ¶3) (emphasis added) The decision to sell the Nissan of Hickory dealership was not
made until December 2003 and the actual sale occurred in May of 2004, well after Plaintiff was
11 The same might be true regarding the existence of an adverse employment action, if the jury were to find that Plaintiff walked off the job, resigned, or quit after being advised that she was no longer going to be a Sales Manager. In other words, if Plaintiff were merely reassigned to another comparable position (as opposed to being fired) with the same pay, benefits, or status, Plaintiff may not be able to prove that she was subject to an adverse employment action as that term is defined by relevant case law. See Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir.2007) (Under Title VII, adverse employment action is a discriminatory act that adversely affects the terms, conditions, or benefits of the plaintiff’s employment, bu the mere fact that a new job assignment is less appealing to the employee does not constitute adverse employment action) (citing James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 371 (4th Cir.2004); Boone v. Goldin, 178 F.3d 253, 256-57 (4th Cir.1999)). Defendant recognizes as much but analyzes the case consistent with an adverse employment action having occurred on November 4, 2003. (Def.’s Mem. In Supp. at 4-5.)
10

discharged. (C. Welborne Dep. at 17.) In the same document, Defendant stated that “Chris Welborne was involved in the management of Nissan of Hickory from mid-October 2003 through December 24, 2003.” (Id. ¶4) Bob Welborne also authored the second EEOC response submitted on behalf of Welborne, which was not dated and was (obviously) subsequent to Thompson’s departure. (Pl.’s Exh. 9 / EEOC Bates 121) This evidence precludes a determination as a matter of law that Bob Welborne could not reasonably be deemed the principal decision maker with respect to the challenged employment action.
ii. Genuine Issue Of Material Fact – Reason For Termination Defendant’s explanations for Thompson’s proposed reassignment and discharge are all over the map. A review of the evidence reveals that from the earliest stages of this litigation, Welborne’s defense has evolved significantly. According to Defendant’s responses to the EEOC, Plaintiff’s performance was deficient in at least two respects: 1) sales fell during her tenure; and 2) the staff turnover rate increased during her tenure. (Pls.’ Exh. 8, 9) The second response explains that in the month to follow Plaintiff’s employment, “wholesale losses were huge in an effort to try to get [Defendant’s] used car inventory back into equity position.” (Pls.’ Exh. 9) The same document states that the staff turnover included six salespeople and one finance manager. (Id.) The third letter written to the EEOC also mentions a problem with Plaintiff’s appraisals of trade-ins and adds that Bob Welborne’s frustration with Mike Thomas was for hiring management staff without first seeking Welborne’s approval - not for hiring a female sales manager. (Pls.’ Exh. 10) Chris Welborne’s deposition testimony is inconsistent with the EEOC responses submitted by Defendant. Chris Welborne’s deposition testimony seeks to clarify that many of the
11

responsibilities first identified by Defendant as Thompson’s purported weaknesses were not within the realm of her duties. (C. Welborne Dep. at 124-26.) For instance, Chris Welborne testified that the decline in sales and staff turnover could not really be attributed to Plaintiff. (Id. at 126-27, 129, 137.) Chris Welborne further testified that he did not want to lose Thompson as an employee but wanted to capitalize on her strengths and experience in finance. (C. Welborne Dep. at 109, 132.) According to Defendant, Welborne would have considered placing Thompson at one of the other stores “had she been willing to work, try to work it out. . . .”12 ( Id. at 211.) Despite his testimony that he was disappointed in Plaintiff’s lack of ability to “close the deal,” Chris Welborne ultimately testified that Plaintiff was not fired because of poor performance. (C. Welborne Dep. at 55, 77, 115.)
After backing off of its initial claim that Plaintiff was responsible for the dealership’s decline in sales and staff turnover, Welborne now explains that its decision to reassign Thompson was based upon Thompson’s alleged failure to obtain a customer’s signature on a sales / purchase contract – a costly mistake per Welborne. (LaRocca Dep. at 55-57, 113.) In her affidavit, Thompson states that, “[t]o the best of [her] knowledge, [she] did not fail to get a customer’s signature on a sales contract.” (Thompson Aff. ¶8) Thompson avers that, as Sales Manager, her responsibilities “did not include getting signatures on sales contracts.” (Thompson Aff. ¶8) Rather, “[t]hat was done in the Finance office,” consistent with her past experience and industry practice. (Thompson Aff. ¶¶8, 10) Thompson states she did not fill in for the finance manager, nor was she ever asked to take on this role, during the period of time (two or three days) that she worked with Tony LaRocca. (Id.) Thompson states that “Neither LaRocca nor anyone else in or out of management ever told me that
12 As mentioned, supra, Defendant contends that two other management positions were offered to Thompson but she declined – finance manager position(s) at both the Suzuki and Nissan locations. (LaRocca Dep. at 59-61.)
12

I had allegedly failed to obtain a customer signature on a sales contract. The first time I heard that was in this lawsuit.” (Id.) LaRocca testified that he, in fact, told Plaintiff about the alleged mistake and explained Chris Welborne’s subsequent anger. (LaRocca Dep. at 70.) LaRocca denies being advised or aware of any other reason for Plaintiff’s termination. (Id.)
Welborne has not produced (in discovery or to this Court in support of its motion for summary judgment) a copy of the sales contract with a missing signature that Welborne asserts precipitated its decision to reassign Thompson from sales to finance. Similarly, Defendant produces no (zero) concrete evidence in support of its original position that Plaintiff’s performance was unsatisfactory in any way, or that the used car department suffered in any respect as a result of Thompson’s brief tenure with Welborne.13 Finally, Chris Welborne admitted during his deposition that, upon learning of Plaintiff’s EEOC complaint, Welborne made no effort to preserve records potentially relating to the instant claims. (C. Welborne Dep. at 158.)
Defendant’s responses to the EEOC complaint, like the deposition testimony of its management personnel, are wrought with inconsistencies.14 (Compare Pls.’ Exhs. 8 - 10) There is indeed a question of fact with respect to who authored at least one of the responses. Chris Welborne contends that another manager from another dealership actually drafted the EEOC response that he signed. However, that individual, namely, Herb Gay, apparently denies writing the letter on Chris Welborne’s behalf. (C. Welborne Dep. at 114-15, 206-07.) Likewise, questions of
13 Defendant refers to its sales records, etc., in the months following Plaintiff’s employment as evincing support for its position but fails to produce any such records. In light of Chris Welborne’s deposition testimony, these records are less probative of the ultimate issue of intentional discrimination than originally represented by Defendant.
14 A reasonable juror could find that Defendant’s responses contain post-hoc pretextual bases for Plaintiff’s discharge.
13

fact relevant to Defendant’s employment decisions (e.g., plaintiff’s job performance, plaintiff’s
failure to obtain a signature on a sales contract, etc.) must be resolved.15 Summary judgment is not
appropriate.
C. Punitive Damages
With respect to Plaintiffs’ claim for an award of punitive damages, the Court will likewise
deny summary judgment.
VI. Conclusion / Order
Plaintiff’s evidence presents genuine issues of material fact. Based upon the direct evidence
of intentional discrimination produced by Plaintiff, a reasonable jury could find that Defendant
harbored a discriminatory animus towards its female employees as alleged in Plaintiff’s Complaint.
Moreover, Plaintiff presents sufficient circumstantial evidence from which an inference of gender-
based discrimination could be reasonably drawn. For the reasons stated herein, Plaintiff’s evidence
15 The confusion surrounding Plaintiff’s actual job duties, combined with her abbreviated employment period, complicates any meaningful evaluation of her performance. Tony LaRocca testified that because he did not work with Plaintiff long, he didn’t really have enough time to evaluate Plaintiff’s experience or performance. (LaRocca Dep. at 62.) However, LaRocca described Plaintiff as “always very pleasant.” (Id. at 68.) According to LaRocca, “everybody liked her” and “[n]o one wanted to get rid of her.” (Id. at 77.) LaRocca explained that in terms of Plaintiff’s ability to close deals, her style was simply a “little different” than his own style (i.e., not as vocal). (Id. at 64-65.)
According to Mike Thomas, Thompson’s performance was satisfactory. (Thomas Dep. at 1920.) Thomas testified that Bob Welbone inquired a few times about Plaintiff’s performance and that Thomas always responded positively. (Id.) Thomas contends that Chris Welborne was present during one such occasion and that Chris agreed that there was no problem with Plaintiff’s actual performance. (Id. at 20.) Thomas specifically recalls telling Bob and Chris Welborne that Plaintiff was “doing a good job.” (Id.) Thomas elaborated, “Because the guys did what she said, move the lot. We didn’t have anybody, you know, not doing what she had told them to. We didn’t have any complaints from the sales people. I mean they fell right in and did exactly what she said to do.” (Id.) Thomas denied ever receiving any complaints about Plaintiff Thompson regarding her ability to assess trade-ins, work deals, or supervise the sales force when he wasn’t there. (Thomas Dep. at 30.) Thomas testified that Plaintiff did “whatever needed to be done” and “could do all around, anything at the store.” (Id.) Thomas denied ever receiving any complaints from Bob or Chris Welborne about Plaintiff’s job performance. (Id. at 31.)
14

is sufficient to overcome Defendant’s motion for summary judgment. IT IS, THEREFORE, ORDERED that Defendant’s Motion For Summary Judgment is
hereby DENIED. Accordingly, this matter will be placed on the January 2008 trial term in the Statesville Division, with calendar call on Monday, January 7, 2008, and jury selection to commence on Tuesday, January 2008.
Signed: November 26, 2007
15

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STA TESVILLE DIVISION

EQUi'i..L E~/1PLOY!\1ENT OPPORTU~JITY COMMISSION,
Plaintiff, And
PAULA THOMPSON, Plaintitl-lntcrvcnor,
v. WELBORNE AUTOMOTIVE, INC. flkla NISSAN OF HICKORY, INC.
Defendant.

)

)

)

)

)

)

Civil Action No.: 5:04-CV-207

)

)

)

CONSENT DECREE

)

)

)

)

)

)

)

)

)

The Equal Employment Opportunity Commission (the "Commission") instituted this action pursuant to Section 706(1)( 1) and (3) of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.c. Section 2000e-5(f)( I) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.c. § 1981 a. The Commission's complaint alleged that Welborne Automotive Inc., fi'kla Nissan of Hickory, Inc. discriminated against Paula Thompson in violation of Title VII by tenninating her employment because of her sex, female. Thereafter, Paula Thompson intervened, through counsel, alleging violations of Title VII and state law.
The Commission, Paula Thompson (the "Plaintift:lntervenor,") and the Defendant, Welborne Automotive Inc., flkla Nissan of Hickory, Inc., (the "Defendant"), hereby stipulate to jurisdiction of the Court over the parties and agree that the subject matter ofthis action is properly before the Court.

The parties have advised this Court that they desire to resolve the allegations in the Complaint without the burden, expense, and delay of further litigation.
It is therefore the finding of this Court, made on the pleadings and the record as a '.vho!e. that: (I) the Court has jurisdiction over the parties and the subject matter of this action; (2) the purpose and provisions of Title VII will be promoted and effectuated by the entry ofthc Consent Decree: and (3) this Decree resolves all remaining matters in controversy between the parties as provided in paragraphs 1 through 15 below.
It is therefore ORDERED. ADJUDGED AND DECREED as follows: I. Defendant shall not discriminate against any person on the basis of sex or any other protected category within the meaning of Title VII. 2. Defendant shall not discriminate or retaliate against any person because of opposition to any practice made unlawful under Title VII of the Civil Rights Act of 1964 or because of the filing ofa charge. the giving of testimony or assistance, or the participation in any investigation, proceeding or hearing under that statute. 3. Plaintiff-Intervenor and the Defendant have entered into a separate Settlement Agreement and Release of All Claims which is attached hereto as Exhibit A and incorporated herein by reference. 4. Defendant does not currently conduct business within the United States or within any foreign jurisdiction. If Defendant resumes business within the United States or within any foreign jurisdiction during the term ofthis Agreement, Defendant agrees to provide the following, described in paragraphs 5 through 10 below. 5. Within fifteen (15) days after resuming business operations in any state within the United States or within any foreign jurisdiction, Defendant shall adopt, implement, and distribute
2

a formal, written anti-discrimination policy, which shall include but not be limited to the following: an explanation ofthe requirements of the federal equal employment opportunity laws. including Title VII and its prohibition against sex discrimination; procedures for reporting discrimination; and a procedure for the thorough and immediate investigation of employee complaints of discrimination. Defendant shall distribute to each current employee a copy of the policy within the aforementioned 15 day time period. Within thirty (30) days after resuming business operations in any state within the United States or within any foreign jurisdiction, Defendant shall report compliance to the Commission. Ifduring the term of this Decree Defendant resumes business, then Defendant shall distribute the policy to all new employees and review it with them at the time of hire.
6. Within fifteen (15) days after resuming business operations in any state within the United States or within any foreign jurisdiction, Defendant shall post a copy of the policy described in paragraph 5, :;upra, in all of its facilities in a place where it is visible to employees. If the policy becomes defaced or unreadable, Defendant shall replace it by posting another copy of the policy. Within thirty (30) days after resuming business operations in any state within the United States or within any foreign jurisdiction, Detendant shall report compliance to the Commission.
7. Within thirty (30) days after resuming business operations in any state within the United States or within any foreign jurisdiction, Defendant shall provide an annual training program to all of its owners, managers, supervisors and employees. Each training program shall include an explanation of the requirements of Title VII ofthe Civil Rights Act of 1964, and its prohibition against sex discrimination in the workplace. Each training program shall also include an explanation of Defendant's policy referenced in paragraph 6 above, and an explanation orthe
3

rights and responsibilities of employees and managers under the policy. The first training program shall be completed within thirty (30) days after resuming
business operations in any state \vithin the United Stutes or within any fon;ign jUiisdiction. Each subsequent training program shall be conducted at approximately one-year intervals. At least fifteen (15) days prior to eaeh program, Defendant shall provide the Commission with an agenda for the training program. Within ten (10) days after completion of each training program, Defendant shall certifY to the Commission the specific training which was undertaken and shall provide the Commission with a roster of all employees in attendance.
8. Beginning thirty (30) days after resuming business operations in any state within the United States or within any foreign jurisdiction. and continuing throughout the term ofthis Decree, Defendant shall conspicuously post the attached Employee Notice, marked Exhibit B, and hereby made a part of this Decree, in a place where it is visible to employees in all facilities. If the Notice becomes defaced or unreadable, Defendant shall replace it by posting another copy of the Notice. Within forty-five (45) days after resuming business operations in any state within the United States or within any foreign jurisdiction, Defendant shall notify the Commission that the Notice has been posted pursuant to this provision.
9. If Defendant resumes business operations in any state within the United States or within any foreign jurisdiction, Defendant shall provide the Commission with reports at six (6) month intervals, with the first being due four (4) months after Defendant resumes business operations in any state within the United States or within any foreign jurisdiction. The reports will include the following information:
A. A list of all management positions that have been filled, including the name, sex, last known address, last known phone number, and social
4

security number of the individual hired to fill the position, as wdl as the date the position was filled. B. The identities of all applicants for the positions listed in paragraph 8(A), identified by name, sex, last known address, lasl known phone number, and social security number. C. If a position identified pursuant to paragraph 9(A) was filled by a man, and a female· applicant was not selected for the position, provide a detailed statement explaining why the female applicant was not selected. D. The identities of all female managers whose employment was terminated. including the individuals' name. last known address. last known phon~ number, and social security numb~r, as well as a detailed statement of the reason for termination In the event there is no activity to report pursuant to this paragraph, Defendant shall send EEOC a "negative" report indicat ing no activity. 10. If Defendant resumes business operations in any state within the United States or within any toreignjurisdiction, the Commission may review compliance with this Decree. As purt of such review, the Commission may inspect Defendant's facilities, interview employees and examine and copy documents. II. If anytime during the term of this Decree, the Commission believes that Defendant is in violation of the Decree, th~ Commission shall give notice of the alleged violation to Defendant. Defendant shall have twenty (20) days in which to investigate and respond to the allegations. Thereafter, the parties shall then have a period often (10) days or such additional period as may be agreed upon by them, in which to engage in negotiation regarding such
5

allegations before (he Commission exercises any remedy provided by law.

12. The term of this Decree shall be fo r five (5) years from its entry by the Court .

13. ,AJI reports or other documents sent to the Commission by Defendunt pursuant to

thi s Decree shall be sent to: Lynette A. Barnes, Regional Attorney, at the Equal Employment

Opportunity Commission, 129 W. Trud~ Street, Suite 400, Charlotte N.C., 28202.

14. Each party shall bear its own costs and attorney's fees.

IS. This Court shall relain j urisdiction of this cause for purposes of monitoring

compliance with this Decree and entry of sueh funher orders as may be necessary or appropriate.

P-K. ,;~ ,zOo1'-
Dale

~~~ Judge, U.S. District Court Western District of North Carolina

6

The parties jointly request that the Court approve and enter the Consent Decree:
RONALD S. COOPER General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
lsi Lynette A. Barnes LYNETIE A. BARNES (N.C. Bar No. 19732) Regional Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 129 W. Trade Street, Suite 400 Charlotte, NC 28202 Tel. (704) 344-6878 Fax. (704) 344-6780 L Ynettc, Barncs(a)ccoc,gOY
lsi Tracy Hudson Spicer TRACY HUDSON SPICER (MD Bar No. 08671) Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ISOI L Street, N.W., Suite 100 Washington, DC 20507-1002 Telephone: (202) 419-0711 Facsimile: (202) 419-070 I E-mail: TracY.Spicer@eeoc.gov
lsi Kerith Cohen KERITH COHEN (Virginia Bar No. 39069) Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Norfolk Local Office 200 Granby Street, Suite 739 Norfolk, Virginia 23510 Tel. (757) 441-3505 Fax. (757) 441-6720 Kerith.Cohenideeoc ,gOY
7

PAULA THOMPSON, Plaintiff- Intervenor
/s/ Vicki Brown Rowan Vicki Brown Rowan, N.C. Bar. No. 14294 Attorney for Plaintiff-Intervenor 1515 Mockingbird Lane, Suite 400 Charlotte, NC 28209 Tel. (704) 525-4110 Fax. (704) 525-4301 VH Rowan(a;hells()urh.net
WELBORNE AUTOMOTIVE, INC .
flk/al NISSAN or HICKORY, INC.
/s/ Lxn K. Broom Lyn K. Broom, N.C. Bar No. 17674
Attorney for Defendant Teague Rotenstreich and Stanaland, LLP
PO Box 1898
Greensboro, NC 27402-1989 Tel. (336) 272-4810 Fax (336) 2722448
J.h b!iJlli'slaw .com
8

Settlement Agreement And Release Of All Claims

This Settlement Agre~m"nt and Release of All Claims ("Agreement") is entered into between Paula Thompson ("Plaintiff-Intervenor"), and Welborne Automotive, Inc. fIkIa ~issan of Hickory, InlO. C'DdenoWlt Welborne Automotive").

WHEREAS, the Plaintiff intervened in a certain civil action in the United States District Court, Western District of Nortb Carolina, Equal Employment Opportunity Commission, plaintiff, and Paul Thomps on. plaintiff-intervenor, v. Welborne All/amative, fn c. /lk/a Nissun of Hickory, Inc.; Civil Action No,: 5:04-cv-207 alleging claims lor wrongful discharge in violation of public policy and,gender di scrimination pursuant to Title VII of the Civil Rights Act, of ]964 und 1991, and related claim s.

WHEREAS , the Defendant contends that the Plaintiff-Intervenor wa~ not subjected to any of the alleged actions and had no cause for any alleged damages or any emotional distress due (0 her employment or termination.

WHEREAS, the Plaintiff-Intervenor and Defendant wish to settle fully and finally all

disputes hetween them by compromise, including, but not limited to, those disputes embodied in

the above captioned case and any additional claims andlor causes of action not yet filed, and to

that end are willing to make mutual concessions.

.

NOW, THEREFORE, it is agreed that in consideration of the promises of the parties hereinafter set forth, the parties agree as follows:
I. Full Release qrAll Claims Against Defendant. P]aintiff·lntervenor, her heirs . executors,
successors and assigns, hereby forever discharge Welborne Automotive, Inc. flkla Nissan of Hickory, Inc., its insurers, related companies, affiliates, owners, directors, officers, managers, employees, agents, servants, corporate and litigation uttorneys, successors, assigns and any and all other persons, firms and corporations of and from all manners of action s, causes of action, suits, debts, accounts, judgments, claims and demands whatsoever for which the Plninti IT has or may have against the Defendant up to the date Plaintiff signs this Release. This Release specifically includes, but is not limited to, the claims contained in Equal Employmelt/ Opportunity Commission, plaintiff. and Parli Thompson, plaintiff-intervenor, v. Welborne Automotive, Inc. 11k/a Nissan a/Hickory, i/lc.; Civil Action No .: S:04-cv-207 and all possible causes of action pursuant to any potenti al federal, state or local law causes of action. This Release specifically includes, but is not limited to, all claims arising from Plaintiff-Intervenor's employment withand tennination from Defendant Welborne Automotive, lnc. fflUa Nissan of Hickory, Inc.
2. Covenant Not To Sue. In addition, Plaintiff-Intervenor specilically agrees not to attempt to institute any proceedings or further pursue any action pursuant to any other laws, state, local or federul, bllSed on her employment with or tenllinatioJl from Defendant Welborne Automotive, Inc. f7IUa "Jissan of Hickory, Inc. Furth<.T, Plaintiff-Intervenor specifically waives the right to and will not attempt to seek any remedy obtained through the efforts of any other individual or state or federal agency against Defendant, except as to

Exhibit A

enforcement of the Consent Decree. Defendant agrees not to attempt to insti tute any proceedings or further pursue any action pursuant to any other laws, state, local or federal against Paula Thompson for any statements made OT actions taken by Paula Thompson prior to this settlement that pertain to the instant dispute.
3. Non-Disclosure Provision . The undersigned specifically agree not to actively publicize
the terms ofthis Agreement to the news media or anyone likely to disclose such
infonnation to the news media. The undersigned further specifically agree not to publicize or list the terms of this Agreement, the parties involved or the settlement amount, by way of any website or Internet access, including listing said infonnation on a professional website or distributing said infonnation to a professional group or association or hy way of a professional list serve. The undersigned attorney spccifically agrees to not disclose any telIDS of this Agreement to North Carolina Lawyer's Weekly or any similar professional publications or Internet sources.
4. Seltlemem Paymem. Defendant shall cause to be paid to Paula Thumpson the sum of seventy thousand dollars ($70,000.00) in settlement of the claims raised in the abovereferenced civil action. Defendant shall cause two checks to be issued: one check in the amount oftorty-five thousand six hundred sixty-seven dollars ($45,667.00) payable to Paula Thompson and a second eheck in the amount of twenty-four thousand three hundred thirty-three dollars ($24,333.00) for costs and fees payable to Vicki B. Rowan TrustAccount. Paymcntshall be made within fifteen (15) days after the Court approves the Consent Decree which is to be filed in the above-referenced civil action, and Defendant shall mail both checks to Vicki Rowan, Attorney at Law, ISIS Mockingbird Lane, Suite 400, Charlotte, NC 28209. Within ten {I 0) days after the check has been sent, Defendant shall mail to Lynette A. Barnes, Rcgional Attorney, at the Equal EmploynJent Opportunity Commission, 129 W. Trade Street, Suite 400, Charlotte N.C., 28202, a copy of the checks mailed to Vicki B. Rowan. Paula Thompson agrees that the Defendant has made no representation to her regarding any taxes due and agrees to indemnify and hold Defendant ham1less for the amount of any tax, penally or interest associated with any tax owed by Paula Thompson relating to the payment above.
5. Dismissal ~fLawsuit. And for the consideration as aforesaid, il is further agreed that upon receipt by counsel for the plaintiff-intervenor ofthe settlement payment identified above; and entry of the Consent Decree, a stipul ation of dismissal with prejudice shall be ,igned by the plaintiff-intervenor as to any and all claims asserted in the aboye referenced civil action not otherwise addressed in the Consent Decree which the Defendant will submit to the United States Distri ct Court, Western District of North Carolina, with the Consent Decree to be entered by the Court in the civil action entitled Equal Employment Opportunity Commission. plain/if]: and Paul Thompson. plaintiff-intervenor, v. Welborne Automotive. Inc. j7k/a Nissan ojlIickory, Inc. ; Civil Action No.: 5:04-cv-207, which stipulation of dismissal shall provide that the Plaintiff-Intervenor submits to a voluntary dismi ssal with prejudice as to the Defendant as to all claims not resolved by the Consent Decree with each party bearing its own costs and attorneys' lees.
6. No Admission ofLiability. This Agreement and Release has been entered into for the
2 Exhibit A

sole purpose of settling the disputes and avoiding costly litigation between PlaintiffIntervenor and Ddendant. Nothing herein is to be construed as an admission by the Defendant of any acts of discrimination or misconduct againstPlaintifl:lntervenoL The Defendant specifically disclaims any liability to the 1'Iaintitl~[ntervenor.

7.

Invalid Provisions. Should any provision of this Agreement be declareq invalid [or any

reason by any court of competent jurisdiction, said provisions shall be deleted from this

Agreement and the remainder of this Agreement shall nol be affected thereby.

8. i-.lrtire Agreement. This document expresses the full and complete settlement of a liability claimed and denied regardless of the adequacy of the above considerations. This document and the Consent Decree to he entered by the Court contain the entire agTeement betwccn Plaintiff-Intervenor and Defendant.

9. Amendment and Waiver. This Agreement may be amended only in u writing signed by all parties hereto. The waiver, by either purty, of a breach of any provision of thi s Agreement shall not be deemed to be a waiver of any subsequeDt breach.

10. Governing Law. This Agrecment shall he governed by and construed in accordance with
the laws of the United Slates of America and the State of North Carolina.

IT IS THE INTENT OF MS. PAULA THOMPSON TO RELEASE ALL CLAIMS OF EVERY NATURE AND KIND WllETIlER KNOW N OR UNKNOWN, ACCURED OR UNACCRUED, WHICH MS. PA ULA THOMPSON MAY HAV E AGAINST WELBORNE AUTOMOTIVE, INC. , £1"/a NlSSAN OF HICKORY, INC., AS OF THE DATE OF THE EXECUTION OF THIS SETTLEMENT AGREEMENT.
Ms. Thompson is not relying on the advice of Defendant Welborne Automotive Tnc. f/k/a Nissan of Hickory, Inc. nor its attorneys, but has come to this decision of her own freewill. Ms. Thompson hereby declares and represents that in making this release and agreement it is understood and agreed that she is.relying wholly 11pon her own judgment, belief, and knowledge oftbe nature, exlent and duration of my damages, and that she has not been influenced to any extent whatsoever in making the release, by any representations or statements regarding said injuries and damages, or regarding any other matters, made by persons, finns or corporations who arc hmcby released, or by any persons representing them.

YOU ARE MAKING A FINAL SETTLEMENT. THIS IS A RELEASE, READ BEFORE SIGNING.

3 Exhibit A

12- 2'7-07
Date
STATE OF NORTH CAROLI"<A
COU",TY OF MECKLENHERG
On this the 27th day of December. 2007, before me personally appeared Paula Thompson.
to me known to be the persons described herein, unu who executed the forgoing instrument and she voluntarily executed the same,
NotaryPUblie~
, ' Witness by Hand and Seal, thisJ7 day of ~;, zoo 1~~~~;n
My Commission Expires: __....:..qJ.:..:.:..L::::::..:.:::~___~
,N.C..

Vicki B. Rowan

Date

Attorney for PlaintitT

1515 Mockingbird Lane, Suite 400

Charlotte, North Carolina 28209

Telephone: (704) 525-4110

Facsimile: (704) 525-430 I

4 Exhibit A

/
005 / 00B

Paula 'Thompson,

Date

STATBOF

COUNTY OF

On this the __ day of

200-, before me personally appeared

PR\J!a 'l:hompson, to me known to the persons rlbed herein, and who executed the

forgomg iw;trument and she vo tarily executed the e.

Witness b and and Seal, Ihis ~ day of _ _ _ _-', 200_, My mmission Expirea: _ _ _ _ _ _ _ _ _ _~,

Yield B. Rowan

Date

Attorney for Plaintiff

1515 Mockingbird Lane. Suite 400

Charlotte, North C!Il"o(ina 28209

Telephone: (704) 525-4110

Facsimile: (704) 525·4301

elborne, Pre!Jident of Welborne Automotive, Inc,
STATE OF NORTH CAROLINA 4

~008 / 006

COUNTY OF'-::L~'W~
On this the~ day of ~e.;;;&lic

, ZOO~, before me personally appear<;;d

James Welborne, to me known to be tho persons described herein, and who executed the

forgoing instrwuent and be volunralily executed the same.
(\~~7~

NoQ"f\1btiC

e- -" ."E.~re'Il-~_2.010 Wituessby Halld and Seal, Ihis~d~ ay of1:?e.:rIDpl,[ ,2001:1

My Comn:ussion Expires: (8-~!5 - ;)Ol()

JASON R MeONA

.

NOTARY PUBUC

AlEXANDER COUNTY, NC

:

MyCom....

5

IN THE UNITED STATES orSTRICT COURT FOR THE WESTERN [)lSTRICT OF NORTH CAROLINA
STATESVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUN ITY COMMISSION,
Plaintiff; And
PAULA THOMPSON, Plaintiff- Intervenor,
v.
\VELBORNE AUTOMOTiVE, INC. tlk/a NISSAN OF lllCKORY,INC.
Defendant.

)

)

)

)

)

Civil Action No.: 5:04-CV-207

)

)

NOTICE

)

)

)

)

)

)

)

This Notice is posted pursuant to a Consent Decree between the U.S. Equal Employment Opportunity Commission and Welborne Automotive, Inc. f/k/a Nissan of Hickory, Inc. ("Welborne Automotive"), in a case of sex discrimination. Specifically, the EEOC alleged that Welborne Automotive terminated the employment of Paula Thompson because of her sex. female, in violation of Title VII of the Civil Rights Act of 1964, as amended. As part of the settlement, Welborne Automotive agreed to pay money damages to Ms. Thompson and take other action set out in a Consent Decree resolving the matter.

Fcderallaw requires that employers not discriminate against any employee or applicant for employment because of the individual's race, color. religion, sex, national origin, age (40 or older) or disability. TiUe VII specifically prohibits discrimination based on sex.

Welborne Automotive will comply with such federal law in all respects. Furthermore, Welborne Automotive will not take any actions against employees because they have exercised their rights, reporled an alleged violation under the law or given testimony, assistance or participation in any investigation, proceeding or hearing conducted by the U. S. Equal Employment Opportunity Commission.

An employee has the right, and is encouraged to exercise that right, to report allegations of employment discrimination in the workplace. An employee may contact their local U. S. Equal Employment Opportunity Commission field office for the purpose of filing a charge or employment discrimination. To locate the nearest field office, contact:

Equal Employment Opportunity Commission 1801 L Street, N.W.
Washington, DC 20507 TEL: 1-800-669-4UUU TTY: 1-800-669-6820

a..a DO NOT REMOVE THIS NOTICE UNTIL: J)f!Ct""\x..r

I

2012

Exhibit B 9

 
 CM/ECF - LIVE DATABASE - NCWD

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?467542375719341-L_...

U.S. District Court Western District of North Carolina (Statesville) CIVIL DOCKET FOR CASE #: 5:04-cv-00207-RLV-DCK

CLOSED

EEOC v. Welborne Auto Inc Assigned to: District Judge Richard Voorhees Referred to: Magistrate Judge David Keesler Demand: $0 Cause: 42:2000 Job Discrimination (Sex)
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 12/30/2004 Date Terminated: 12/28/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Jessica Lynn Dixon Equal Employment Opportunity Commission Charlotte District Office 129 West Trade Street Suite 400 Charlotte, NC 28202 704-344-6875 Email: jessica.dixon@eeoc.gov TERMINATED: 03/25/2005 LEAD ATTORNEY
Kerith Cohen Equal Employment Opportunity Commission 200 Granby Street Suite 739 Norfolk, VA 23510 757/441-3505 Fax: 757/441-6720 Email: kerith.cohen@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynette A. Barnes Equal Employment Opportunity Commission Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, NC 28202 704.344.6878 Fax: 704.344.6780 Email: lynette.barnes@eeoc.gov

1 of 7

3/22/2008 3:21 PM

CM/ECF - LIVE DATABASE - NCWD
V. Intervenor Plaintiff Paula Thompson
V. Defendant Welborne Automotive, Inc. formerly known as Nissan of Hickory, Inc.
2 of 7

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?467542375719341-L_...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Vicki Brown Rowan Attorney at Law 1515 Mockingbird Lane Suite 400 Charlotte, NC 28209 704-525-4110 Fax: 704-525-4301 Email: VBRowan@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine C. Hall Teague, Rotenstreich and Stanaland, L.L.P. P.O. Box 1898 Greensboro, NC 27402-1898 336/272-4810 Fax: 336/272-2448 TERMINATED: 04/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lyn K. Broom Teague, Rotenstreich and Stanaland, L.L.P. P.O. Box 1898 Greensboro, NC 27402 336/272-4810 Fax: 336/272-2448 Email: LKB@trslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maranda Janay Freeman Cranfill, Sumner & Hartzog P. O. Box 27808 Raleigh, NC 27611-7808 919-863-8736 Email: mjf@cshlaw.com TERMINATED: 11/29/2005 LEAD ATTORNEY
3/22/2008 3:21 PM

CM/ECF - LIVE DATABASE - NCWD

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?467542375719341-L_...

Date Filed 12/30/2004 01/20/2005 01/20/2005 01/20/2005 03/25/2005 05/23/2005 05/23/2005 05/23/2005 08/01/2005 09/08/2005
09/08/2005 09/28/2005 09/28/2005 09/30/2005
10/12/2005
10/25/2005

# Docket Text
1 COMPLAINT Filing Fee - Waived (cbb) (Entered: 01/03/2005)
2 CONSENT/REFUSAL to Magistrate Jurisdiction by EEOC - Refusal (cbb) (Entered: 01/20/2005)
3 CASE reassigned to Judge Richard L. Voorhees - notice of reassignment mailed to parties. (cbb) (Entered: 01/20/2005)
CASE REFERRED to Magistrate Judge David C. Keesler (cbb) (Entered: 01/20/2005)
4 Substitution of Counsel terminating attorney Jessica Dixon for EEOC and substituting Kerith Cohen (cbb) (Entered: 03/29/2005)
5 ANSWER to Complaint with Jury Demand by Welborne Automotive, Inc..(Bouchard, Carolyn) (Entered: 05/24/2005)
6 CORPORATE Disclosure Statement by Welborne Automotive, Inc..(Bouchard, Carolyn) (Entered: 05/24/2005)
7 Refusal of Magistrate Judge Jurisdiction by Welborne Automotive, Inc.. (Bouchard, Carolyn) (Entered: 05/24/2005)
8 MOTION to Intervene by Paula Thompson. Responses due by 8/15/2005 (Attachments: # 1 Text of Proposed Order)(Bouchard, Carolyn) (Entered: 08/04/2005)
9 ORDER granting 8 Motion to Intervene; ordered that Paula Thompson be permitted to intervene as a plf, that the cmp in intervention be filed, and that dfts ans cmp in intervention w/i 20 days from filing of this order. Signed by Judge David Keesler on 9/8/2005. (Bouchard, Carolyn) (Entered: 09/08/2005)
10 Intervenor COMPLAINT , filed by Paula Thompson against Intervenor dft Welborne Automotive, Inc.(Bouchard, Carolyn) (Entered: 09/08/2005)
11 ANSWER to Intervenor Complaint by Welborne Automotive, Inc..(Bouchard, Carolyn) (Entered: 09/28/2005)
12 ANSWER to Intervenor Complaint by Welborne Automotive, Inc..(Bouchard, Carolyn) (Entered: 10/04/2005)
13 CERTIFICATION of initial attorney conference and discovery plan by Paula Thompson, Equal Employment Opportunity Commission, Welborne Automotive, Inc..(Bouchard, Carolyn) (Entered: 10/04/2005)
14 ORDER Initial Pretrial Conference set for 11/30/2005 11:00 AM in In Chambers before David Keesler.. Signed by Judge David Keesler on 10/12/2005. (Bouchard, Carolyn) Modified on 10/14/2005 (Bouchard, Carolyn). (Entered: 10/13/2005)
15 MOTION for Extension of Time to 11/28/05 to File Response/Reply to EEOC's 1st Interrogs, 1st Req/Prod/Dcmts, 1st Req/Admissions by Welborne Automotive, Inc.. Responses due by 11/8/2005 (Attachments: # 1 Text of Proposed Order)(Bouchard, Carolyn) (Entered: 10/26/2005)

3 of 7

3/22/2008 3:21 PM

CM/ECF - LIVE DATABASE - NCWD

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?467542375719341-L_...

10/31/2005 11/08/2005 11/23/2005
11/29/2005
11/30/2005
04/12/2006 05/20/2006 05/22/2006
05/22/2006 05/22/2006 07/17/2006 08/01/2006 08/01/2006 08/14/2006

16 ORDER granting 15 Motion for Extension of Time to File Response/Reply to 1st Interrogs, 1st Req/Prod/Dcmts, 1st Req/Admissions; time ext to 11/28/05 . Signed by Judge David Keesler on 10/31/2005. (Bouchard, Carolyn) (Entered: 11/01/2005)
17 NOTICE of Atty Appearance by Lyn K. Broom on behalf of Welborne Automotive, Inc. (Bouchard, Carolyn) (Entered: 11/08/2005)
18 MOTION to Withdraw as Attorney as to Maranda J. Freeman by Welborne Automotive, Inc.. Responses due by 12/7/2005 (Attachments: # 1 Defendant's Consent to Withdraw# 2 Certificate of Service# 3 Text of Proposed Order)(Evans, Tammy) (Entered: 11/23/2005)
20 ORDER granting 18 Motion to Withdraw as Attorney. Added attorney Lyn K. Broom for Welborne Automotive, Inc., Katherine C. Hall for Welborne Automotive, Inc.. Attorney Maranda J. Freeman terminated . Signed by Judge David Keesler on 11/29/2005. (Bouchard, Carolyn) (Entered: 12/01/2005)
19 PRETRIAL ORDER AND CASE MANAGEMENT PLAN: Estimated Trial Time: 4 days Discovery due by 5/22/2006. Motions due by 6/22/2006. Responses to Motion due by 7/22/06 Mediation deadline set for 5/22/2006. Jury trial date to be set when matter is ripe & ready to be tried. Signed by Judge David Keesler on 11/30/2005. (Bouchard, Carolyn) (Entered: 11/30/2005)
21 NOTICE by Vicki B. Rowan, cnsl for Paula Thompson, of planned vacation out of country for 9/9/06 through 9/18/06 (Bouchard, Carolyn) (Entered: 04/26/2006)
22 Joint MOTION for Extension of Scheduling Deadlines by Welborne Automotive, Inc.. (Attachments: # 1 Proposed Order)(Broom, Lyn) (Entered: 05/20/2006)
23 ORDER granting 22 Motion for Extension of Scheduling Deadlines; disc ddl ext to 7/31/06; mediation ddl ext to 7/31/06; motion filing ddl ext to 9/15/06; resp to dispositive motion ddl is 10/20/06 . Signed by Judge David Keesler on 5/22/2006. (Bouchard, Carolyn) (Entered: 05/22/2006)
Set/Reset Scheduling Order Deadlines: Discovery due by 7/31/2006. Mediation deadline set for 7/31/2006. Motions due by 9/15/2006. (Bouchard, Carolyn) (Entered: 05/22/2006)
Set/Reset Deadlines as to Response to dispositive motions due by 10/20/2006 (Bouchard, Carolyn) (Entered: 05/22/2006)
24 REPORT of Mediation by Mediator M. Ann Anderson; mediation session held 7/7/06; parties have reached impasse(Bouchard, Carolyn) Modified on 7/17/2006 (Bouchard, Carolyn). (Entered: 07/17/2006)
25 MOTION to Compel by Welborne Automotive, Inc..Responses due by 8/18/2006 (Attachments: # 1 # 2 # 3)(Broom, Lyn). Motions referred to David Keesler. (Entered: 08/01/2006)
26 MEMORANDUM in Support re 25 MOTION to Compel filed by Welborne Automotive, Inc.. (Broom, Lyn) (Entered: 08/01/2006)
27 MOTION to Strike 25 MOTION to Compel by Paula Thompson.Responses due by 8/31/2006 (Rowan, Vicki) (Entered: 08/14/2006)

4 of 7

3/22/2008 3:21 PM

CM/ECF - LIVE DATABASE - NCWD

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?467542375719341-L_...

08/18/2006
08/18/2006 08/29/2006 08/31/2006 09/15/2006 09/15/2006 09/19/2006 10/20/2006
10/26/2006
10/26/2006 11/09/2006 11/22/2006
12/06/2006 12/12/2006

28 MEMORANDUM in Opposition re 25 MOTION to Compel filed by Paula Thompson, Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 12# 12 Exhibit 13# 13 Exhibit 14# 14 Exhibit 15# 15 Exhibit 16# 16 Exhibit 17# 17 Exhibit 18# 18 Exhibit 19# 19 Exhibit 20# 20 Exhibit 11)(Cohen, Kerith) (Entered: 08/18/2006)
29 AFFIDAVIT in Opposition re 25 MOTION to Compel (Amended Declaration of Rowan) filed by Paula Thompson. (Rowan, Vicki) (Entered: 08/18/2006)
30 RESPONSE in Opposition re 27 MOTION to Strike 25 MOTION to Compel filed by Welborne Automotive, Inc.. (Broom, Lyn) (Entered: 08/29/2006)
31 REPLY to Response to Motion re 25 MOTION to Compel filed by Welborne Automotive, Inc.. (Attachments: # 1 Affidavit of Lyn K. Broom# 2 Exhibit 1 to Affidvait of Lyn K. Broom)(Broom, Lyn) (Entered: 08/31/2006)
32 MOTION for Summary Judgment by Welborne Automotive, Inc..Responses due by 10/20/2006 (Broom, Lyn) Modified on 9/19/2006 (Bouchard, Carolyn) to change response due date. (Entered: 09/15/2006)
33 MEMORANDUM in Support re 32 MOTION for Summary Judgment filed by Welborne Automotive, Inc.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15)(Broom, Lyn) (Entered: 09/15/2006)
Set/Reset Deadlines as to 32 MOTION for Summary Judgment pursuant to 23 Order filed 5/22/06 Responses due by 10/20/2006 (cbb) (Entered: 09/19/2006)
34 MEMORANDUM in Opposition re 32 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Table of Exhibits# 2 Exhibit Exhibit 1# 3 Exhibit Exhibit 2# 4 Exhibit Exhibit 3-5# 5 Exhibit Exhibits 6-10# 6 Exhibit Exhibits 11-14# 7 Exhibit Exhibits 15-16)(Cohen, Kerith) (Entered: 10/20/2006)
35 First MOTION for Extension of Time to File Response/Reply to Plaintiff-EEOC's Memorandum of Law in Opposition to Defendant's Motion to Compel by Welborne Automotive, Inc..Responses due by 11/13/2006 (Attachments: # 1 Proposed Order)(Broom, Lyn). Motions referred to David Keesler. (Entered: 10/26/2006)
36 ORDER granting 35 Motion for Extension of Time to File Response/Reply re 32 MOTION for Summary Judgment Replies due by 11/9/2006.. Signed by Judge David Keesler on 10/26/2006. (cbb) (Entered: 10/26/2006)
37 REPLY to Response to Motion re 32 MOTION for Summary Judgment filed by Welborne Automotive, Inc.. (Broom, Lyn) (Entered: 11/09/2006)
38 MOTION for Leave to File Surreply by Equal Employment Opportunity Commission.Responses due by 12/11/2006 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Proposed Order)(Cohen, Kerith). Motions referred to David Keesler. (Entered: 11/22/2006)
39 ORDER granting 38 Motion for Leave to File Surreply. Signed by Judge David Keesler on 12/5/2006. (cbb) (Entered: 12/06/2006)
40 Surreply by Equal Employment Opportunity Commission as to 38 MOTION for Leave to File Surreply, 32 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 1# 2

5 of 7

3/22/2008 3:21 PM

CM/ECF - LIVE DATABASE - NCWD

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?467542375719341-L_...

03/29/2007
04/17/2007 04/27/2007 04/30/2007 11/26/2007 11/26/2007
12/05/2007
12/10/2007 12/10/2007 12/10/2007 12/11/2007

Exhibit 2)(Cohen, Kerith) (Entered: 12/12/2006)
41 ORDER granting in part and denying in part dft's 25 Motion to Compel and for Sanctions; dft's Mot/Compel supplementation to discovery requests granted to extent described in Order; dft's request to reopen Thompson's depo is denied w/o prejudice to refile and dft's Mot/Sanctions is denied; granting in part and denying in part plf-intv's 27 Motion to Strike; as to mot/strike mot/compel, it is denied and as to mot/strike sanctions, it is granted; parties to submit proposed protective order, if necessary, by 4/20/2007. Signed by Judge David Keesler on 3/29/2007. (cbb) (Entered: 03/29/2007)
42 MOTION for Protective Order by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order Protective Order)(Cohen, Kerith). Motions referred to David Keesler. (Entered: 04/17/2007)
43 RESPONSE to Motion re 42 MOTION for Protective Order filed by Welborne Automotive, Inc.. (Broom, Lyn) (Entered: 04/27/2007)
44 PROTECTIVE ORDER. Signed by Judge David Keesler on 4/30/2007. (cbb) (Entered: 04/30/2007)
45 ORDER denying 32 Motion for Summary Judgment; this matter will be placed on the January, 2008, trial term in the Statesville Division with calendar call on 1/7/08 and jury selection to commence on 1/8/08. Signed by Judge Richard Voorhees on 11/26/2007. (cbb) (Entered: 11/26/2007)
Set/Reset Hearings:Jury Trial set for 1/7/2008 10:00 AM in Statesville Courtroom, 200 W. Broad St., Statesville, NC 28677 before District Judge Richard Voorhees.,Jury Selection set for 1/8/2008 09:30 AM in Statesville Courtroom, 200 W. Broad St., Statesville, NC 28677 before District Judge Richard Voorhees. (cbb) (Entered: 11/26/2007)
46 ORDER directing parties to participate in a judicial stlmt conference;Settlement Conference set for 1/4/2008 09:30 AM in Courtroom #3 (2nd floor), 401 W. Trade St., Charlotte, NC 28202 before Magistrate Judge David Keesler. Each pty to submit confidential stmt to Judge Keesler by 12/28/2007; parties to appear at 1/7/2008 calendar call unless stlmt terms reduced to writing and Stip/dism filed by close of business on 1/4/2008; if not settled, jury selection to commence 1/8/2008; evidence to begin no sooner than 1/14/2008. Parties to comply w/ all pretrial filing ddls. Signed by Judge Richard Voorhees on 12/5/2007. (cbb) (Entered: 12/05/2007)
47 MOTION to Dismiss by Welborne Automotive, Inc.. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Errata Exhibit C# 4 Errata Exhibit D# 5 Exhibit Exhibit E)(Broom, Lyn) (Entered: 12/10/2007)
48 MEMORANDUM in Support re 47 MOTION to Dismiss filed by Welborne Automotive, Inc.. (Broom, Lyn) (Entered: 12/10/2007)
49 MOTION to Expedite by Welborne Automotive, Inc.. (Attachments: # 1 Proposed Order)(Broom, Lyn) (Entered: 12/10/2007)
50 ORDER granting 49 Motion to Expedite Briefing and Consideration of dft's Motion to Dismiss; plf and plf-intervenor shall filed response to dft's Rule 37 motion by 12/19/2007; dft will file reply to response by 12/21/2007. Signed by Judge Richard Voorhees on 12/11/2007. (cbb) (Entered: 12/11/2007)

6 of 7

3/22/2008 3:21 PM

CM/ECF - LIVE DATABASE - NCWD

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?467542375719341-L_...

12/11/2007 12/19/2007 12/21/2007
12/28/2007

Set/Reset Deadlines as to 47 MOTION to Dismiss; response due by 12/19/2007; Replies due by 12/21/2007. (cbb) (Entered: 12/11/2007)
51 Miscellaneous Filing by Equal Employment Opportunity Commission. re: 47 Motion to Dismiss, 48 Memorandum in Support of Motion Notice of Resolution (Cohen, Kerith) (Entered: 12/19/2007)
52 MOTION enforce settlement, remove from trial calendar re 51 Miscellaneous Filing by Paula Thompson.Responses due by 1/7/2008. (Attachments: # 1 Exhibit A-1 (3 pgs), # 2 Exhibit A-2 (4 pgs), # 3 Exhibit A-3 (4 pgs), # 4 Exhibit B)(Rowan, Vicki) (Entered: 12/21/2007)
53 CONSENT DECREE with attachments A and B. Signed by District Judge Richard Voorhees on 12/28/07. (chh) (Entered: 12/28/2007)

PACER Service Center

Transaction Receipt

03/22/2008 16:20:32

PACER

wu0079 Client

eeoc

Login:

Code:

Description:

Docket Report

Search Criteria:

5:04-cv-00207-RLV-DCK

Billable Pages:

4

Cost:

0.32

7 of 7

3/22/2008 3:21 PM