Case 4:04-cv-04215-LLP Document 1 Filed 12/28/2004 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA
Civil Action No. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

FILED
j DEC 28_
~~ J

Plaintiff, v. SIOUXLAND ORAL MAXILLOFACIAL SURGERY ASSOCIATES, L.L.P.

Defendant.

COMPLAINT AND JURY TRIAL DEMAND
NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 to correct unlawful employment practices on the basis of sex, and to provide appropriate relief to Richelle Dooley ("Dooley") and Angie Gacke ("Gacke"), who were adversely affected by such practices. As alleged with greater particularity below, the United States Equal Employment Opportunity Commission ("Plaintiff' ofthe "Commission") alleges that Siouxland Oral Maxillofacial Surgery Associates ("Defendant") unlawfully terminated Dooley's employment after she advised her superiors that she was pregnant. Furthermore, the Commission alleges that the Defendant unlawfully refused to hire Gacke after she disclosed her pregnancy during the interview process.

Case 4:04-cv-04215-LLP Document 1 Filed 12/28/2004 Page 2 of 7
JURISDICTION AND VENUE l. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§ 451, 1331, 1337, 1343 and 1345. This action if authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII"), and Section 102 ofthe Civil Rights Act of 1991,42 U.S.C. §1981A. 2. The employment practices were committed within the jurisdiction ofthe United States District Court for the District of South Dakota
PARTIES 3. Plaintiff is an agency ofthe United States government charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(F)(1) and (3) ofTitle VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant was a South Dakota corporation doing business in the State of South Dakota, the City of Sioux Falls, 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 within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e-(b), (g) and (h).
GENERAL ALLEGATIONS 6. More than thirty days prior to the institution of this lawsuit, Dooley filed a charge with the Commission alleging violations of Title VII by Defendant.
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Case 4:04-cv-04215-LLP Document 1 Filed 12/28/2004 Page 3 of 7
7. More than thirty days prior to the institution of this lawsuit, Gacke filed a charge with the Commission alleging violations of Title VII by Defendant.
8. All conditions precedent to the institution of this lawsuit have been fulfilled. Ms. Dooley:
9. Defendant interviewed Dooley for a reception/scheduling position on or about October 22, 2001.
10. On or about October 25,2001, Defendant notified Dooley in writing that the position was filled and her resume would be kept on file for future employment opportunities.
II. On or about December 28,2001, Defendant contacted Dooley in writing advising her of another reception/scheduling position and offered her immediate hire.
12. Dooley contacted Shelley Hofer ("Hofer'" Defendant's Administrative Coordinator, on or about December 29, 2001.
13. Hoffer hired Dooley immediately and agreed to a January 2, 2002, start date. 14. On January 3,2002, Dooley advised Hofer that she was pregnant. 15. On January 3, 2002, Kathleen Fjellstad, Defendant's Business Manager, told Dooley that her employment was terminated. 16. Fjellstad advised Dooley that Defendant would not have hired her if she had previously disclosed her pregnancy. Ms. Gacke 17. On or about March 11, 2002, Gacke submitted to Defendant an application for a Central Sterilization and Post-Operative Recovery position.
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Case 4:04-cv-04215-LLP Document 1 Filed 12/28/2004 Page 4 of 7
18. On March 12,2002, Defendant's Surgical Administrator Sherena Kost ("Kost") and Central Sterilization and Post-Operative Recovery employees Sharon McConnell and Jenny DeVries interviewed Gacke for the position.
19. At the end ofthe interview, Kost provided Gacke with a copy of Defendant's benefit package.
20. Gacke advised Kost that she was four-months pregnant and asked Kost ifher pregnancy would be a pre-existing condition for the purpose of receiving benefits.
21. Kost advised Gacke that her pregnancy was a problem because maternity leave would create more work for the other employees.
22. Kost immediately grabbed the benefit package back from Gacke. 23. Later that day, Kost contacted Gacke by telephone and told her she did not get the job.
FIRST CLAIM FOR RELIEF (Title VII - Wrongful Discharge - Dooley) 24. The effect of the practices complained of in the paragraphs above, has been to deprive Ms. Dooley of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex, female and due to her pregnancy. 25. The unlawful employment practices complained of in the paragraphs above were intentional. 26. The unlawful employment practices complained of in the paragraphs above were done with malice or with reckless indifference to the federally protected rights of Dooley.
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Case 4:04-cv-04215-LLP Document 1 Filed 12/28/2004 Page 5 of 7
SECOND CLAIM FOR RELIEF (Title VII - Failure to Hire- Gacke) 27. The effect of the practices complained of in the paragraphs above, has been to deprive Ms. Gacke of equal employment opportunities because of her sex, female and due to her pregnancy. 28. Defendant refused to hire Gacke because of her sex, female, and due to her pregnancy. 29. The unlawful employment practices complained of above were and are intentional. 30. The unlawful employment practices complained of above were and are done with malice or with reckless indifference to the federally protected lights of Gacke.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:
A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from refusing to hire and engaging in the discharge of female employees based on their pregnant condition and any other employment practice which discriminates on the basis of sex.
B. Order Defendant Employer, to make whole Dooley and Gacke by providing appropriate backpay with prejudgment interest, in an amount to be determined at trial, and other affirmative reliefnecessary to eradicate the effects of its unlawful employment practices, including but not limited to reinstatement of Dooley and hiring Gacke.
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Case 4:04-cv-04215-LLP Document 1 Filed 12/28/2004 Page 6 of 7

C. Order Defendant Employer to make whole Dooley and Gacke by providing

compensatory damages in amounts to be proved at trial, and other affirmative and equitable relief

necessary to eradicate the effects of its unlawful employment practices.

D. Order Defendant Employer to pay punitive damages for their malicious and

reckless conduct described above, in an amount to be deternlined at trial.

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

interest.

F. Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests ajury trial on all questions of fact raised by its complaint.

$ Dated: December

2004

Respectfully Submitted,

ERIC S. DREIBAND General Counsel

GWENDOLYN REAMS Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W. Washington, DC 20507

JOSEPH H. MITCHELL Regional Attorney

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Case 4:04-cv-04215-LLP Document 1 Filed 12/28/2004 Page 7 of 7
NANCY A. WEEKS Supervisory Trial Attorney
Kllvl R. ROGERS Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Denver District Office 303 East 17th Avenue, Suite 510 Denver, CO 80203 (303) 866-1347 FAX (303) 866-1375
NOTE: It is sufficient for service on the EEOC that pleadings, notices, and any other court documents be served on the Trial Attorneys. Duplicate service is not required on the General Counsel in Washington, D.C.
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 FILED Case 4:04-cv-04215-LLP Document 18 Filed 05/27/2005 Page 1 of 3

UNITED STATES DISTRICT COlJRT DISTRICT OF SOUTH DAKOTA Sm.:THERN DIVISIOl\

MAY 27 2D05

* * * * * * * * * :;: * * * * * :;: * * * * * * * * * * * * * :~ * * * * * * * * * :~ * * * * * * * * * * * *

:;:

CIV 04-421 ~

I'C)UAL EMPLOYMEl\T OPPORTl:NITY "

COrv1\11SS[ON,

*

Plaintill

* MEMORANDUM OPIN10N AND

RICHELLE DOOLEY ami ANGIE (JACKIE,

'"

ORDER DENYING MOllON

:I:

FOR SEVERAN('[

*

Plaintifrs - Intervcnors,

*

'"

-\s-

*

:I:

SIOUXLA'lD ORAL MAXILLOFACI/\L '"

SURGERY ASSOCIATES, L.L.P.,

'"

*
DcJ(;ndanl. * * * * * * * * ~: * :I: * * * * * * * * * :I: * * * * * * * * * * * :I: * :;: * * * * * * * * * * * ~: * * * * * *

The Equal Employment Opportunity COllllllission ([EOC) filed an action under Title VII of the Civil Rights Act 0[' I WJ4.The EEOC alleges it brought the action to correct unlawful employment practices which discrilllinated on the basis or sex and to prov'idc appropriate relicrto Richellc Dooley and Angie Gacke. The EEOC's complaint alleges th,lt Defendant, Siouxland Oral Max iIlol~lcial Surgery Associates, L. L. P., (Delcndant) unlawfully terminated Dooley's employment alkr she advised her superiors she was pregnant, and that Delcndant unlawfully refused to hire C;ackc aftcr shc disclosed during her interview that she was pregnant. Gaeke and Dooley originallv filed a separate cOlllplaint, then moved to intervene in the EEOC action. This Court granted the motion to intervene in an Order dated March 31,2005. Doc. 16.
Prior to the entry orthe order allowing intervention, DclCndant nlcd a lllotion to sever the separate claims or (Jacke and Dooley. Doc. 10. Dcl'cndant contends that thc individual claims, whether pursllcd hy the EEOC or privately, do not satisfy the requirements ol'permissive joinder. and that severance is warranted under Fed.R.Civ.P. 20(a) and Fed. R.C iv. P. 21. The EFOC contends that it has broad authority to pursue litigation on behall'ofmore than a single employee, and thaI joinder principles arc not applicable to it civil action brought by the EEOC on behalf ofaggrievcd

Case 4:04-cv-04215-LLP Document 18 Filed 05/27/2005 Page 2 of 3
individuals pursuant to Scction IO(,(!)(I) oCTitle VII or the Civil Rights Act nf 1%4.' The EEOC further contends that even assuming that joinder principles arc applicable to this lawsuit. there arc suClicient cOlllmonalities in this case to warrant litigation in a singic cause oCactiDn. This COUI·t has assumcd, without deciding, that Fed.R.Civ.P. lOra) and Fed.R.Civ.P. 21 apply lC1 this easc. but has decided that lhe motion to sevcr should be denied lelr the reasons set lorlh in this opinion.
Rule 20 (b) and Rule 42(b) ()rthe Federal Rules ofCivil Procedure vest in the l'ccicral distl'ict court the discretion to order separatc tria I or to nwke sueh other orders to prevcnt delay or prejudice. In detel'lllining whether scvcrance is warranted Rule 20(b). this Court recogni/cs that the "Jlurpose orthc rule is to promoted trial convcnience and expedite the limli dctermination oCdisputcs,lh~rcby preventing Illultiple lawsuits." ;'v!osicl' v. (/Cllera! lv/orors Corp., 497 F.2d 133tl, 1332 (8th Cir. I974)(citing 7 C. Wright. Federal Practice and Procedure ~ j()S2 at 2(,5 (1972)): Sec Itlso. (hliled Mille Workers o!'Amcl'/('(/ v. (JiMs, 3R3 U.S. 715. 724 (I ,!(6)("[.IJoinder of claims. parlies and rel1ledies is strongly encouraged."), Permissive joinder under Rule 2(J, howcver. is not appl icable in all cases. Ruic 20 im poses two speci lic requisi tes to the jn indcr 0 f partics: (I ) the right to re lie j'must be asserted by. or against, each plainti fror def'cndant relating to or 'lrising out 0 rthe sall1e transaction or occurrence, or scries of transactions or occurrences; and (2) there must arise in the ,lctioll some question "flaw or fact common to all the parties. Mosic)! v. GCJ1eral ;11%rs Corp" 4')7 F.2d at 133J.
Rule 20 is construed to "permit all reasonably related claims 1,)1' reliefby or against dil1crcnt partied to be tried in a single proceeding," and "[aJbsolutc identity ohlil events" is not required Il)r permissive joinder. Mosley. 497 F.2d at 133:1. The EEOC and the Intervenors allcge adverse employment treatment of two pregnant women during a three-month time Ihulle hy two dil'ICrent supervisory employees 01' Dclcndant, with Del'cndant having a small number of employees. approximakly 30 administrative and surgical stall according to the EEOC Dockd 12. p.2. The EEOC and thc Intervenors allege that the adverse treatment occurred as soon as the supervisory
'I" Genera! Tid Co. of'the Northwest, Il1c.. v. I:EOC', 44() U.S, 31 S. 329-330 (1980), the Suprcmc Coul'l held that Rule 23 of the Federal Rules of Civil Procedurc docs nol apply to actions brought by the Commission pursuant to Section 706 ofTitlc VII. The Supremc Court, however, noted, "We by no mcans suggcst that the Federal Rules generally are inapplicable to
the EEOC's 0 foe) actions." 446 U.S. at 334 n.16.
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Case 4:04-cv-04215-LLP Document 18 Filed 05/27/2005 Page 3 of 3

employees learned the women werc pregnant, and that the adverse treatment occurred because thl' women were pregnant. This COlin concludes that the EEOC and the individual Intervenors raise reasonably related cl,lims for purposes of Rlile 20, and th~lt the Jirst rcquiremcnt of permissive joinder has been met.
The second requirement for permissive joinder is that a question of law or Ille[ COlllnlLln 10 all the parties will arise in the actiDn. There is nD requirement that all questions Dna\\' and fact raised by the dispute be COllllllon. ,Hosley, 497 F.2d at 1334. The individuallntervcnors and the EEOC all raise the issue of whether Defendant has a policy against hiring pregnant womell. The 1~IClthat each Intervenor may havc suffered different efTects fi'om the alleged discrimination is immaterial in determining whether the second requirement tl)r permissive joinder has been met. 1<1. In addition, discovery is anticipated to raise additional common questions 01' t~lct and law relating to pretext and training. This COlin concludes that the second requirement Cor permissive joinder has been met.
Bycienying Delendant's motion (0 sever, this Court is avoiding the incfficicncyoCconducting separate trials that would involve related parties, witnesses and evidence. Sec I':qll<l/ ElIljl/O),IIlCII/ 0l,/wrlullil,' COllllllissi(JIl v. JiBE Corp., lJ5 FJd 543, 551 (Sth Cir. 19(8)(consolitiation nt'claims ol'EEOC and individual employee intervenors bringing race discrimination action is 'Ippropriatc). Accordingly,

IT IS ORDERED that Dcl'endant's Motion to Sever (Doc. I 0) is m;NIED.

21 Dated (his

'iL
day of May, 2005.

ATTEST:

.I0SEPII/IJAAS, CLE~
IW: ,R&LUt-.I,,(/,'{/IJ_

(SEAL)

DEPUTY

BY THE COURT:
~~,:t·~;c~0~ Chicf.lucigc
,
"

 
 mED

UNITED STATES DISTRICT COURT

MAY· 9 20Q8

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

~

********************************************************************~:::

*

EQUAL EMPLOYMENT

*

OPPORTUNITY COMMISSION,

*

CIV.04-4215

*

Plaintiff,

*

RICHELLE DOOLEY and

*

*

ORDER ON MOTION

ANGIE GACKIE,

*

*

Plaintiffs-Intervenors,

*

*

vs.

*

* SIOUXLAND ORAL MAXILLOFACIAL *

SURGERY ASSOCIATES, L.L.P.,

*

*

Defendant.

*

*
******************************************************************************

Pending is plaintiffs (EEOC) motion to compel discovery (Doc. 33). The matter was referred to the magistrate judge pursuant to 28 U.S.c. § 636(b)(I) and the Court's Standing Order dated February 1,2002 (Doc. 38).
The disputed discovery matters are EEOC's Request for Documents 7, 8 and 16. Number 7 requests all documents relating to or concerning Siouxland's response to Interrogatory 8, i.e. documents reflecting employee requests for accommodation of temporary or permanent medical conditions or physical limitations, Siouxland' s efforts to accommodate, and any limited duty assignments resulting from employee work restrictions. Siouxland objected, but

provided "Exhibit 5."1 The reasons for objection are overly broad, unlikelihood that the documents would lead to evidence which is admissible, and violation ofprivacy rights ofnon-party employees.
Number 8 requests the personnel file for each person identified in response to Interrogatory 8. Siouxland objected, citing overly broad, unlikelihood that the documents would lead to evidence which is admissible, and violation of the privacy rights of non-party employees.
Number 16 requested the net worth of Siouxland for each fiscal year from 2000 to the present. Siouxland objected, citing SDCL 24-1-4.1, relevance, and the unlikelihood that compliance would lead to evidence which is admissible.
The EEOC argues the discovery is relevant to show Siouxland's non-discriminatory explanation for the employment action is pretextual. The EEOC contends the employment files could demonstrate whether Siouxland's employment practices comport with their stated policies. The files ofother employees could show whether Dooley was treated differently from other similarly situated employees. The files could show what equal employment opportunity training was provided, evidence which is relevant both to punitive damages and to the need for injunctive relief. The EEOC asserts the files could reveal information which has a bearing on credibility and is useful for impeachment of witnesses at trial. The EEOC contends there are only 12 personnel files which are the subject of the dispute, so production is not burdensome. The EEOC asserts the medical information in the files is pivotal to show Siouxland's actual practices about medical leave and accommodation. The EEOC urges the Health Insurance Portability and Accountability Act of 1996 (HIPPA) does not prevent the production of the medical information in the personnel files because
IPerhaps "Exhibit 5" is among the briefs and attached documents but its identity is not self evident. Notwithstanding "Exhibit 5" a discovery dispute exists.
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Siouxland is not an entity covered by HIPPA. The EEOC contends Siouxland' s net worth is relevant to the punitive damage claim allowed by 42 U.S.c. § 1981 a(b).
Siouxland argues the issue in the case is whether Richelle Dooley was disqualified from the position. Her position required six to nine months oftraining. Her need for extended leave would have been required during or shortly after her training period. Nobody for any reason has been permitted extended medical leave of absence during the employee's first year of employment. Siouxland contends it has already provided the EEOC all of the information about all employees who have ever been given extended medical leave, the nature ofthe leave and the dates ofthe leave. Siouxland urges the disputed discovery requests should be denied because the requests for production do not involve persons who are similarly situated with Richelle Dooley. Siouxland asserts the relevant comparison group is comprised of employees who either required or requested leave of absence during Siouxland's busiest time ofthe year or during the first year of employment. Siouxland contends privacy issues of non-parties preclude production of their personnel files. The personnel files of other employees have nothing to do with the issue which disqualified plaintiffs from occupying Siouxland's open positions- their unavailability during the very times when Siouxland needed them most. Siouxland urges employers are not required by law to make accommodations for pregnancy, so the inquiry about accommodations is not relevant. In summary, Siouxland contends the discovery is not relevant, it seeks private information about non-party employees, and it seeks information about persons who are not similarly situated with Richelle Dooley. About net worth information, Siouxland urges the EEOC has not sufficiently pled malice, and that Siouxland is not vicariously liable for punitive damages as a result of discriminatory employment decisions of its managers which are contrary to the employer's good faith efforts to
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comply with Title VII. Siouxland suggests the decision about production of net worth information should be postponed until all the evidence has been heard at the trial.
ANALYSIS The parties disagree about the central issue. The EEOC argues the central issue is whether Siouxland treated women affected by pregnancy in the same manner as other employment applicants or employees with similar abilities or limitations. Siouxland argues the central issues are (I) whether Richelle Dooley was qualified for the position for which she was hired, and (2) whether the person hired was better qualified than Angie Gacke. Siouxland's statement of the issue is an assertion of a non-discriminatory reason for the hiring decision in each case. The EEOC's statement of the issue goes to pretext-is the nondiscriminatory reason asserted by Siouxland a pretext? The EEOC wants the disputed discovery so it can fulfill its burden of proof on the issue ofpretext. Whether Richelle Dooley and Angie Gacke were unavailable when most needed or less qualified than another for the positions with Siouxland are fact questions for the jury. Whether those are pretextual reasons for the employment actions are fact questions for the jury. Neither the non-discriminatory reasons for the employment actions asserted by Siouxland nor the pretext issue asserted by the EEOC can be decided as a matter oflaw in this discovery dispute. In order for the EEOC to pursue evidence it believes it needs to fulfill its burden of proof on the issue of pretext, the EEOC needs the responses to Requests for Production 7 and 8. The decision about discovery ofSiouxland' s net worth should be deferred until all evidence is received. Net worth is merely a number-not a complex matter to understand, digest, and prepare for use in closing argument- so the number is not needed until later, after the evidence
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is heard and an informed decision can be made about the quality of evidence to support the punitive damage claim. Since this is a federal question lawsuit, SDCL § 24-1-4.1 does not apply, so there is no need for a pre-trial hearing about punitive damages.
It is hereby ORDERED that plaintiffs' motion to compel production of the requested documents mentioned in Requests for Production 7 and 8 is GRANTED. Siouxland may redact from the documents identification of the persons and other information Siouxland believes to be private or privileged. Siouxland should prepare a log of redacted information if the redaction is not self evident on the redacted document. If the EEOC objects to the redaction(s) the matters(s) should be submitted to the Court for in camera inspection and further decision about disclosure. It is FURTHER ORDERED that the ruling on plaintiffs' Request for Production of documents showing defendant's net worth is deferred until all the evidence has been heard, or until such other time as is ordered by Judge Piersol. Dated this $ a y of May, 2006.

BY THE COURT:

ATTEST:
JOSEPH HAAS, Clerk
BY~M~ , Deputy 7

1 0
tates Magistrate Judge

5

 
 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED
MAR - 9 2007
~~

****************************************************

* EQUAL EMPLOYMENT OPPORTUNITY *

CIV 04-4215

COMMISSION,

*

Plaintiff, *

RICHELLE DOOLEY and ANGIE GACKE,
Plaintiffs - Intervenors,

*

MEMORANDUM OPINION AND

*

ORDER RE: SUMMARY JUDGMENT

*

AND OTHER MOTIONS

*

*

*

-vs-

*

*

SIOUXLAND ORAL MAXILLOFACIAL *

SURGERY ASSOCIATES, L.L.P.,

*

* Defendant *

****************************************************

The Equal Employment Opportunity Commission (EEOC) brought this action under Title VII of the Civil Rights Act of 1964 to correct alleged unlawful employment practices which discriminated on the basis of sex and to provide appropriate relief to Richelle Dooley and Angie Gacke. The EEOC's complaint alleges that Defendant, Siouxland Oral Maxillofacial Surgery Associates, L.L.P., unlawfully terminated Dooley's employment after she advised her superiors she was pregnant, and that Defendant unlawfully refused to hire Gacke after she disclosed during her interview that she was pregnant. This Court granted Dooley and Gacke' s motion to intervene in this action. In a Memorandum Opinion and Order dated May 27, 2005, this Court denied Defendant's motion to sever. Doc. 18.
The EEOC and Intervenors filed ajoint motion to strike Defendant's Expert, James Carroll. Doc. 65. Defendant filed a motion for sanctions alleging that the joint motion was not substantially justified. Doc. 71. The Court ruled orally at the October 29, 2006, hearing that the motion to strike Defendant's Expert, James Carroll was denied. The Court also ruled orally at the October 29, 2006, hearing that Defendant's motion for sanctions was denied.
Defendant has moved for summary judgment. Doc. 54. Defendant has also moved for

separate trials of the individual claims of discrimination asserted by the EEOC and Intervenors Dooley and Gacke. Doc. 59. The Court will first address the motion for summary judgment. In accordance with the requirements for considering motions for summary judgment, the Court will view the facts in the light most favorable to the non-moving party. See AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987).
STATEMENT OF FACTS
Defendant Siouxland Oral & Maxillofacial Surgery Associates, L.L.P. (Defendant) is a medical clinic specializing in oral and maxillofacial surgery, with the largest part of its practice involving the removal of wisdom teeth. During the relevant time period (October 2001- March 2002) Defendant had four male physicians/surgeons and 30 employees, all female, with the exception of one male X-ray technician. Defendant is busiest during the summer months as well as other limited times when high schools and colleges are not in session.
In October of 2000, Defendant moved into a larger facility. When the operation moved into the larger facility, Dr. Akerson became the Managing Partner, Sherena Kost became the Surgical Coordinator and Shelley Hofer became the Administrative Supervisor. Kathleen Fjellestad has been Defendant's Business Manager since 1987. Defendant was unable to hire additional staff prior to the move due to size constraints, so after the move there was a need to hire a large number of people in a short period of time. In October of 2001, Defendant placed an ad for a receptionist/scheduling position.
Intervenor Richelle Dooley (Dooley) first applied for the position of Receptionist/Scheduler in October of 2001, and was interviewed at the time but not hired. Defendant kept Dooley's application on file and when the position was again available in December of 2001, Administrative Coordinator Shelley Hofer sent Dooley a letter dated Decmber 28,2001, offering her the job. When Dooley called Hofer to accept the offer, Hofer asked Dooley to start work on January 2, 2002. Defendant contends it is standard operating procedure to discuss with an applicant during the initial interview the fact that summer and school vacations are its busiest time, and Hofer testified that she is certain it was discussed with Dooley "[b]ecause we discuss it with everybody." Defendant's Business Manager, Kathleen Fjellestad, has no personal knowledge ofthe busy time being discussed
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in the October 2001 interview. When Dooley was asked during her deposition whether anyone interviewing her for the position with Defendant advised her that Defendant was busiest in the summer or during Christmas holidays, Dooley responded, "No. I don't recall that at all."
On January 2, 2002, Dooley started her new job as a Receptionist/Scheduler working for Defendant. On Dooley's second day of employment, she approached Hofer with some questions regarding her insurance paperwork. Dooley asked Hofer whether her pregnancy was considered a preexisting condition for purposes of insurance. Hofer congratulated Dooley on her pregnancy and the two discussed Dooley's due date. Dooley stated that her due date was the end of July. After learning that Dooley was pregnant, Hofer spoke with Dr. Balaban, a Siouxland partner. According to Hofer's contemporaneous notes made on January 3, 2002, Dr. Balaban asked whether Dooley had disclosed her pregnancy before being hired. Hofer responded, "We can't not hire her due to pregnancy." Hofer testified at her deposition that when she told him of Dooley's pregnancy, Dr. Balaban said something like, "We could hire a temp." Later that day, Hofer told Dooley that Defendant may have to hire a temporary employee during Dooley's maternity leave.
Hofer then informed Dr. Akerson, the Managing Partner, that Dooley was pregnant. Dr. Ackerson also had a conversation regarding Dooley with Siouxland's Business Manager, Kathleen Fjellestad. Fjellestad warned Dr. Akerson that Dooley could not be fired because she was pregnant. Dr. Akerson testified that he responded that he was terminating Dooley's employment because she was not "available in the time period she was hired for, and because she lied." Although he had no direct knowledge of what information was given to Dooley, Dr. Akerson testified that he believed Dooley was informed that she had to be "fully functional and work full time through the summer,"and that Dooley lied regarding her availability. Fjellestad maintains, however, that unavailability not dishonesty was the reason Dooley was discharged. Defendant maintains that the training period for a new employee in the receptionist/scheduling position is anywhere from five to nine months, I and that Defendant needed to hire an employee who could be trained and available for
lRepresentatives of Defendant testified in their depositions that the training period was five to nine months. In her January 22, 2002, letter to the Human Relations Commission Fjellestad advised that the "training period for a new employee to work independently is six months to one year."
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the summer months. After Dr. Akerson made the decision to terminate Dooley's employment, Hofer and
Fjellestad, informed Dooley on January 3, 2002, that she was being terminated. They advised Dooley she was being terminated because her pregnancy leave would cause her to be off work during Defendant's busy time and that Dr. Akerson said she had to go. Dooley responded by offering to take only a week off to have her baby, but Fjellestad rejected this proposal, saying such a short maternity leave would be unfair to Dooley and the baby. Dooley was told that she would not have been hired if Defendant had known she was pregnant. Additionally, Fjellestad told Dooley that if she was still looking for work after the baby was born, Defendant would hire her if there was an opening. Although Defendant has a policy of retaining applications on file, Dooley was not considered for further openings because she had filed a charge of discrimination against Defendant.
Defendant's written Office Administration and Policy Manual contains an "Extended Medical Leave" policy which provides full-time employees up to sixty days of unpaid leave for a "documented medical problem." The unpaid leave is available to employees who have no sick leave available. According to the administrative supervisor, no employee who has ever requested such leave has been denied the same for any reason. Dr. Akerson testified that Dooley would have been eligible for extended medical leave if she had gotten pregnant after she was hired, and a request for the extended medical leave would not have been denied even if the leave would be taken during the "busy time." Defendant also has a written "Absent Without Pay (AWOP) - Unpaid Leave" policy which allows employees in their first six months of employment to take an extended leave of absence, despite having no accrued leave. There is no provision in this policy that restricts the AWOP leave to times outside the "busy time." However, no employee of Defendant had ever taken an unpaid leave during the first year of her employment or during her training period. "Busy time" depends on the school calendar and can include Summer, Easter, Spring Break, President's Day, Christmas or any time the kids are out of school.
Dooley signed a Charge of Discrimination on January 14,2002, and filed the same with the Sioux Falls Human Relations Commission. While Dooley's discrimination charge was being processed, Defendant was trying to fill a Central Sterilization and Post-Operative recovery position The ad Defendant placed in the local newspaper in order to fill the position stated, "Training in
4

Medical Technology, Dental Assisting or Surgical Technology desirable." Gacke holds an Associates Degree in Cardiovascular Technology, and at the time was working on an unscheduled, part-time basis as a cardiovascular ultrasound technician in Aberdeen, South Dakota. Gacke had training in medical technology, and such training was listed as desirable in the ad. After Gacke saw Defendant's ad, she called Sherena Kost, Defendant's Surgical Coordinator to see ifGacke' straining fit the description for the advertised position. After Gacke advised Kost of her training during the telephone conversation, Kost set up an interview for Gacke for the next day.
Gacke was interviewed by Kost and two other employees of Defendant on March 11, 2002. After discussing Gacke' s job history, the job description of the advertised position and the process of sterilizing equipment, Gacke was given an information packet regarding wages and benefits. Gacke then advised Kost that she was pregnant and asked if that would cause a problem. Kost responded that the pregnancy did cause a problem, that the delivery would be during the busy time, and that Gacke would end up causing more work for everybody else. After Gacke advised that she was pregnant the information packet was taken from her and she was given a tour of the facility. Gacke was also told by an employee of Defendant that Defendant had terminated someone else's employment because of a pregnancy. Gacke was later called and told that she did not get the job.
Gacke did not have any education or work experience in the areas of post-operati ve recovery, wound care, and sterilization. Gacke had not taken any surgical tech classes, and when asked whether she could handle the invasive care and non-invasive care aspects of the position, Gacke stated that she could not. Defendant contends Gacke was not qualified for the position. However, during or after Gacke's interviw, Kost wrote on Gacke's resume: "Cardio vascular tech 'over qualified' for job." Kost also wrote" 4 months pregnant" on the resume.
Two candidates were offered the position for which Gacke applied. The parties disagree as to when these candidates were interviewed. The EEOC and Intervenors contend these candidates were interviewed on March 12, and March 13,2002, after Gacke had already been rejected on March 11, 2002. This contention is based on notes on the candidates' resumes. Kost has submitted an affidavit stating that the dates on the resumes refer to the dates the applicants were contacted by telephone. Doc. 88. Fjellestad's October 10, 2002, letter to the Human Relations Commission, however, states, "The applicant hired for this position applied on March 7,2002 and was interviewed
5

on March 12, 2002." The Central Sterilization and Post-Operative recovery position was initially offered to a
candidate identified as T.K., who turned down the job because she could make more money cleaning houses. Handwritten notes on T.K. 's resume indicate she was interviewed on March 13, 2002. T.K.'s resume discloses that she would be an August 2002 graduate with a degree in Surgical Technology.
The candidate ultimately hired for the Central Sterilization and Post-Operative recovery position was Nicole Reminger. The notes on her resume indicate and Fjellestad's October 10, 2002, letter states she was initially interviewed on March 12,2002. Reminger was called back for a second interview and extended an offer. She began work on April 1, 2002. Reminger had an AAS in medical assisting, and was employed at the time of her application as a certified medical assistant at a medical clinic.
Defendant recently hired an employee in a Central Sterilization and Post-Operative recovery position who had no medical, dental, surgical, or technical training but whose experience was as a receptionist for Defendant. Kost testified this person was trained on the job, did not work independently and would be required to take a certification exam?
WHETHER DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON THE CLAIMS RAISED BY THE EEOC AND INTERVENORS?
Principles of Summary Judgment Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be
entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732,734 (8th Cir. 1987). The
2Kost submitted an affidavit in which she states that this employee subsequently determined that the position was too difficult, determined not to take the certification test, and left the position. Doc. 88.
6

moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the allegations of its pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 257; City of MI. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273-74 (8th Cir. 1988). Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Eighth Circuit has observed that "summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based." Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998), quoted in Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827,830 (8th Cir. 2000). However, the Eighth Circuit has noted "there is no 'discrimination case exception' to the application of Fed.R.Civ.P. 56, and it remains a useful pretrial tool to determine whether or not any case, including one alleging discrimination, merits a trial." Pope v. ESA Services. Inc.• 406 F.3d 1001, 1006 (8th Cir. 2005) (quoting Berg v. Norand Corp.. 169 F.3d 1140, 1144 (8th Cir.1999)). Pattern and Practice Discrimination Claims
Defendant contends that the EEOC's and Intervenors' claims involve two completely separate and distinct employment decisions and that claims of pattern and practice of discrimination are not applicable in individual, disparate treatment cases. The EEOC and Intervenors have not refuted this argument either in their brief or in argument at the pretrial hearing. In EEOC v. McDonnell Douglas Corp., the Eighth Circuit set forth what must be shown to establish pattern and practice discrimination:
To establish a prima facie case of pattern-Of-practice discrimination. a plaintiff must prove that the employer "regularly and purposefully," International Brotherhood ofTeamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), treated members of the protected group less favorably and that unlawful discrimination was the employer's "regular procedure Of policy," id. at 360, 97 S.C!. 1843. "Proving isolated or
7

sporadic discriminatory acts by the employer is insufficient ... rather it must be established by a preponderance of the evidence that ... 'cliscrimination was the company's standard operating procedure-the regular rather than the unusual practice.'" Cooper v. Federal Reserve Bank ofRichmond, 467 U.S. 867,875-76, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), quoting Teamsters, 431 U.S. at 336. 191 F.3d 948, 951 (8th Cir. 1999). The two alleged instances of discrimination presented in this action do not establish a regular procedure or policy to establish pattern-or-practice discrimination. Defendant's motion for summary judgment with regard to the pattern and practice cliscrimination claims is granted. Pregnancy Discrimination Title VII declares it unlawful for an employer to refuse to hire or discharge "or otherwise to discriminate against any inclividual with respect to [her] compensation, terms, conditions or pri vileges of employment" on the basis of the inclividual's sex. 42 V.S.c. § 2000e-2(a)(1). The Pregnancy Discrimination Act amended the sex discrimination proscribed by Title VII to include discrimination on the basis of "pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conclitions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k). To prevail on a pregnancy discrimination claim, a plaintiffhas the burden to show that she was "treated differently because of her pregnancy" or a pregnancy-related condition. Deneen v. Northwest Airlines, Inc. 132 F.3d 431,435 (8th Cir.1998)(quoting Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir.1996)). A plaintiff who claims employment discrimination may survive a motion for summary judgment either by proof of"direct evidence" of discrimination, or by creating the requisite inference of unlawful discrimination through the burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See E.E.O.C. v. Trans States Airlines, Inc., 462 F.3d 987,991 -992 (8th Cir. 2006). "'[D]irect evidence is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.'" Quick v. Wal-Mart Stores, Inc., 441 F.3d 606,609 (8th Cir.2006) (quoting Griffith v. City
8

ofDes Moines, 387 F.3d 733, 736 (8th Cir.2004)). Direct evidence in employment discrimination cases must be distinguished from stray remarks in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process. Quick v. Wal-Mart Stores, Inc. 441 F.3d at 609. If a plaintiff presents direct evidence of discrimination, the prima facie case stage of the McDonnell Douglas test may be avoided because there is no need for the Plaintiff to create an inference of discrimination. Adams v. Nolan, 962 F.2d 791, 795n.6 (8th Cir. 1992); see also, Camey v. Martin Luther Home, Inc., 824 F.2d 643,648 (8th Cir. 1987).
To survive summary judgment under the burden-shifting approach of McDonnell Douglas, a plaintiff must establish a prima facie case of employment discrimination. Id. at 802. If the prima facie case is established, the employer may advance a legitimate, nondiscriminatory reason for the employee's discharge. Id. The burden of production then returns to the plaintiff to show that the employer's reason is a pretext for pregnancy discrimination. Id. at 804.Although Defendant in its brief analyzed Plaintiffs' claims under the McDonnell Douglas burden-shifting framework, Plaintiffs claim that they have presented direct evidence of discrimination. Disparate Treatment (Dooley)
The Court finds that in Dooley's case there is direct evidence of pregnancy discrimination. Dooley was fired shortly after Dr. Akerson was advised that she was pregnant. Dooley was told that she would not have been hired if Defendant had known of her pregnancy. Even when Dooley offered to take only one week of maternity leave, the termination decision was left intact. Dr. Akerson testified in his deposition that "because she was pregnant, and was going to have a baby in July, was obviously -- and planned to take six to eight weeks off ... I informed my partners, and we made a decision to discharge her, because, one, she was not going to be available, and, two, she had lied." The communications regarding Dooley's pregnancy "were made contemporaneously and directly in connection with the adverse employment decision." See Deneen v. NorthwestAirlines, Inc., 132 F.3d 431,436 (8th Cir. 1998). Defendant's motion for summary judgment is denied on Dooley's claim based on direct evidence of pregnancy discrimination.
In addition, Defendant's motion for summary judgment on Dooley's claim should be denied under the McDonnell Douglas analysis. To establish a prima facie case of intentional discrimination, a plaintiff must show the following: (1) membership in a protected group; (2) the
9

employee/applicant was qualified for or was meeting the legitimate expectations of the employer;

(3) an adverse employment action; and (4) the adverse action occurred in circumstances that give rise

to an inference of unlawful discrimination. See Riser v. Target Corp., 458 F.3d 817,819-820 (8th

Cir. 2006).

Defendant contends that Dooley, as an "individual acknowledging a need for six to eight

weeks off, a significant portion of which was expected during this crucial time for which they had

been hired, was not able to meetthis 'legitimate expectation' of the employer." Although Defendant

has claimed that is has a policy prohibiting an employee from taking leave during its "busy time,"

particularly during an employee's first year of employment, Defendant has failed to produce a

written policy to support its claim. Also, Defendant's Extended Medical Leave Policy and Absent

Without Pay policies have no exclusions for the "busy time." Also, the Absent Without Pay policy

allows employees in their first six months of employment to take an extended leave of absence,

despite having no leave accrued. Dooley has thus presented evidence that she was treated differently

than

similarly

situated

employees

or

applicants

3 ,

and

has

presented

aprimafacie

case

of

intentional

discrimination.

Defendant presents as a legitimate, nondiscriminatory reason for Dooley's termination that

she was not going to be available when Defendant needed her to be available, and would be

unavailable to work during the time Defendant was training her. Dooley may now "carry her

329 C.F.R. § 1604.l0(b) provides in part: Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and pri vileges, reinstatement, and payment under any health or disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy, childbirth or related medical conditions on the same terms and conditions as they are applied to other disabilities. (Emphasis added). The Court is not persuaded that Dooley, who offered to take one week of maternity leave, is similarly situated to an applicant who wanted a leave of absence during the summer months to attend soccer camp.
10

ultimate burden of persuasion by demonstrating that the legitimate nondiscriminatory reason proffered by [Defendant] was not the true reason for the adverse employment action, but is merely a pretext for discrimination." Adams v. Nolan, 962 F.2d 791, 795 (8th Cir.1992)(quoting Texas Dep 'f of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). A plaintiff" may succeed in this either directly by persuading the court that a discriminatory reason more likely moti vated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256.
The fact that Defendant's Extended Medical Leave Policy and Absent Without Pay policies have no exclusions for the "busy time" is evidence of pretext. In addition, Dr. Akerson's testimony that if an employee got pregnant after she was hired and was unavailable during the busy time, Defendant would 'just eat it,"undermines the assertion that an employee would not be hired who would be unavailable during the busy time. Although the Court is not placing itself in the position of the employer in determining the training time required of a receptionist, the training period of six months to one year (as set forth in FjelJestad's January 22, 2002, correspondence to Human Relations) appears to be long, and is somewhat inconsistent with the six to nine months period set forth in FjelJestad's January 3,2002, administrative notes. Defendant's later submitted additional reason for terminating Dooley for being untruthful about her future absence is also evidence of pretext especially given the questionable evidence supporting the assertion that Dooley was untruthful during the interview process4 and given the fact that at an earlier time an employee who falsified records by making up blood pressure readings was not terminated. 5 Disparate Treatment CGacke)
The Court also finds In Gacke's case that there is direct evidence of pregnancy discrimination. The writing of "4 months pregnant" on Gacke's application is evidence that
'Dooley was first interviewed for the receptionist position on October 22,2001, but did not get the position. Dooley was then offered the position "immediately" in a letter dated December 28,2001. Her due date was July 28,2002.
5A common way to show pretext is with evidence that other similarly situated individuals who were not in the plaintiff's protected class engaged in the same conduct but were treated differently. See Russell v. City of Kansas City, Missouri, 414 F.3d 863, 868 (8th Cir. 2005) Harvey v. Anheuser-Busch, Inc., 38 F.3d 968,972 (8th Cir.l994).
11

pregnancy was a factor considered in declining to hire her. When Gacke advised Kost that she was pregnant and asked if that would cause a problem, Kost responded that the pregnancy did cause a problem, and the information packet regarding benefits was then taken from Gacke. In Gacke' s case, as well as Dooley's case, the communications regarding Dooley's pregnancy "were made contemporaneously and directly in connection with the adverse employment decision." See Deneen v. Northwest Airlines, Inc., 132 F.3d at 436. Defendant's motion for summary judgment on Gacke's case is also denied based on direct evidence of pregnancy discrimination.
Defendant's motion for summary judgment on Gacke's claim should also be denied under the McDonnell Douglas analysis. Defendant contends there are no genuine issues of material fact as to whether Gacke was qualified for the central sterilization/recovery position because of Gacke' s lack of education and experience in invasive procedures, post-operative recovery, wound care and sterilization.6However, the position advertisement stated, "Training in Medical Technology, Dental Assisting or Surgical Technology desirable," and Gacke had an Associates Degree and experience in Cardiovascular Technology. Kost set up an interview for Gacke after a telephone call in which Gacke discussed her training with Kost. In addition, the notes from the March 11,2002, interview which are on Gacke's resume state "Cardio vascular tech 'over qualified' for job." Also, Defendant subsequently placed one its receptionists who had no medical, dental, surgical, or technical training in a Central Sterilization and Post-Operative recovery position. Genuine issues of material fact exist as to whether Gacke was qualified for the central sterilization/recovery position and Gacke has established a prima facie case of intentional discrimination.
Defendant's proffer of a legitimate, non-discriminatory reason that Gacke was not hired is that the applicants to whom the position was offered were more qualified. Gacke contends that this reason is a pretext for discrimination. Gacke contends that the decision to not hire her was made before these applicants were interviewed. Fjellestad's October 10, 2002, letter and notes on these applicants' resumes support this contention. Genuine issues of material fact exist with regard to
6Defendant's handbook lists the following Education/experience requirements for the position of Central Sterilization and Post-Anesthesia recovery Assistant: "Employees must have training or background in surgical tray preparation, sterilization techniques, surgical instrument handling, and training or background in infection control procedures. Employees must also have training in monitoring of post-anesthesia surgical patient."
12

pretext, and summary judgment is not appropriate in Gacke's case. WHETHER DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON THE CLAIMS FOR PUNITIVE DAMAGES?
Defendant contends that it is entitled to summary judgment on Plaintiffs' claims for punitive damages. An award of punitive damages is allowed under Title VII if the defendant committed illegal discrimination "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.c. § 19S1a(b)(l). The Supreme Court has held that "an employer's conduct need not be independently 'egregious' to satisfy § 19S1a's requirements for a punitive damages award." Kolstadv. American Dental Ass'n, 527 U.S. 526, 546 (1999). The terms "malice" and "reckless" within the context of 42 U.S.C. § 19S1a(b)(l), ultimately focus on the employer's state of mind. Kolstad, 527 U.S. at 535. An "employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages." Kolstad, 527 U.S. at 536. Reckless indifference may be imputed to the employer if an employee commits a discriminatory act while serving in a managerial capacity and acts within the scope of employment. Id. at 543; Walsh v. National Computer Systems, Inc., 332 F.3d 1150, 1161 (Sth Cir. 2003).
Defendant maintains that it has taken measures to prevent and discourage workplace discrimination by maintaining a written policy prohibiting discrimination, and providing anti-discrimination and anti-harassment training for its managers. Plaintiffs contend that Defendant's sex ual harassment policy pertains only to employees, not applicants, and does not address pregnancy discrimination, and that Defendant's "Equal Employment Opportunity Statement" does not include pregnancy as a protected category. Also, Plaintiffs maintain that Defendant had an unwritten policy against hiring pregnant women, and even if written anti-discrimination policies were in effect, where an employer discriminates in contravention of its own policies, these written policies do not shield the employer from punitive damages. See MacGregor v. Mallinckrodt, 373 F.3d 923,931 (Sth Cir. 2004).
Defendant contends punitive damages are not proper because it "was simply making good-faith business decisions regarding Dooley and Gacke, as the clinic desires to hire individuals that are available to work during the necessary times, and individuals that are most qualified for their respective positions." Whether this is true or whether Defendant intentionally discriminated against
13

Dooley and Gacke is a matter the jury must decide at trial. There are indications in the record of evidence' which may support a finding that Defendant "discriminate[d] in the face of a perceived risk that its actions [would] violate federal law." See Kolstad, 527 U.S. at 536. Since the evidence presented by Defendant does not conclusively establish that it can have no liability for punitive damages, the Court will reserve ruling on the punitive damages issue until trial. See Ferris v. First Nat'l a/Nebraska, 2006 WL 1720488 (D. Neb. June 20, 2006). The Court will, as it indicated at the pretrial conference, allow Plaintiffs to present evidence in support of puniti ve damages, except evidence of financial worth may not be presented unless and until the Court rules that the issue of punitive damages goes to the jury.
DEFENDANT'S MOTION FOR SEPARA TE TRIALS Defendant has moved pursuant to FED. R. CIV. P. 42(b)', for separate trials of the individual
claims of discrimination asserted by Plaintiff EEOC and Intervenors Dooley and Gacke. Doc. 59. Defendant contends that since this is not a pattern or practice gender discrimination case, separate trials of the individual claims of discrimination asserted by the EEOC and Intervenors is appropriate pursuant to Fed. R. Civ. P. 42(b). Although this is not a pattern or practice case, separate trials would not be in furtherance of convenience and would not be conducive to expedition and economy. There are common questions of law and overlapping relevant facts, e.g, Defendant's history and policies. The motion for separate trials is denied.
Accordingly,
'Some of the evidence relied upon by Plaintiffs in support of their request for punitive damages is testimony of Fjellestad and Dr. Akerson that Defendant would not rehire Dooley because she filed a charge of discrimination, and Dr. Akerson's testimony that he thought "it would be wrong-headed for any sort of the law, when you have an ongoing legal entanglement going on, to expect any reasonable person to hire that person back."
'FED. R. CIV. P. 42(b) provides: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
14

IT IS ORDERED:

1. That in accordance with the Court's oral order of October 29, 2006, Plaintiffs' Joint Motion to Strike Designation of Expert Witness James Carroll (Doc. 68) is denied; 2. That in accordance with the Court's oral order of October 29, 2006, Defendant's Motion for Sanctions (Doc. 71) is denied; 3. That Defendant's Motion for Summary Judgment (Doc. 54) is granted with regard to Plaintiffs' pattern and practice discrimination claims; 4. That Defendant's Motion for Summary Judgment (Doc.54) is denied with regard to the disparate treatment claims of the EEOC, Dooley and Gacke; 5. That the Court is reserve ruling on the punitive damages issue until trial, and Plaintiffs will be allowed at trial to present evidence in support of punitive damages, except evidence of financial worth may not be presented unless and until the Court rules that the issue of punitive damages goes to the jury; and 6.That the motion for separate trials (Doc. 59) is denied.
r/(l
Dated this ~ day of March, 2007.

n BY THE COURT:

ATTEST:
JOSEPH H;\A~l CLERjfu ).,_ BY: .' ,!14/'U-l" /./ '1.!

(SEAL)

DEPUTY

~L~6
awrence L. Piersol Unites States District Judge

15

 
 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED
APR 06 2007
~~

****************************************************

* EQUAL EMPLOYMENT OPPORTUNITY *

CIV 04-4215

COMMISSION,

*

Plaintiff, *

*

RICHELLE DOOLEY and

*

ANGIE GACKIE,

*

VERDICT FORM

*

(ANGIE GACKE)

Plaintiffs - Intervenors,

*

*

-vs-

*

* SIOUXLAND ORAL MAXILLOFACIAL *

SURGERY ASSOCIATES, L.L.P.,

*

*

Defendant. *

****************************************************

Complete this form by answering the following questions.

Was Plaintiff Angie Gacke's pregnancy a motivating factor in Defendant's decision to not

hire Plaintiff Angie Gacke ?

Yes V

or No

(Check one or the other.)

If you have auswered yes to the above questiou, answer the next question. If you have answered no to the above question, sign and date the verdict form and disregard the following sections.

Has it been proved by the greater weight of the evidence that the Defendant would have not hired Plaintiff Angie Gacke regardless of her pregnancy?

Yes

V or No

(Check one or the other.)

If you have answered yes to the above question sigu and date the verdict form. If you have answered no to the above question, proceed to the damages portion of this form.

We find plaintiff Angie Gacke's damages as defined in these Instructions to be:
Wage loss in the amount of $& 7S 7C?!2. (state the amount). Other damage in the amount of $ g ' " (state the amount).
For total damages in the amount of$ 57-s",")e (state the amount).

Dated:~J$7

Foreperson

....

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

FILED
APR 06 2007

SOUTHERN DIVISION

****************************************************

* EQUAL EMPLOYMENT OPPORTUNITY *

COMMISSION,

*

CIV 04-4215

Plaintiff, *

*

RICHELLE DOOLEY and

*

ANGIE GACKIE,

*

VERDICT FORM

Plaintiffs - Intervenors,

*

(RICHELLE DOOLEY)

*

*

-vs-

*

* SIOUXLAND ORAL MAXILLOFACIAL *

SURGERY ASSOCIATES, L.L.P.,

*

* Defendant. *

****************************************************

Complete this form by answering the following questions.

Was Plaintiff Richelle Dooley's pregnancy a motivating factor in Defendant's decision to

discharge Plaintiff Richelle Dooley?

V Yes

or No _ _

(Check one or the other.)

If you have answered yes to the above question, answer the next question. If you have answered no to the above question, sign and date the verdict form and disregard the following sections.

Has it been proved by the greater weight of the evidence that the Defendant would have discharged Plaintiff Richelle Dooley regardless of her pregnancy?

Yes

V or No

(Check one or the other.)

If you have answered yes to the above question sign and date the verdict form. If you have answered no to the above question, proceed to the damages portion ofthis form.

We find plaintiff Richelle Dooley's damages as defined in these Instruction s to be:

Wage loss in the amount of $ JS) 3/1/'l!. (state the amount).

f f Other damage in the amount of$

(state the amount).

For total damages in the amount of$/5:.3'1' ~ (state the amount). >

Dated:~~dC(l7

Foreperson

 
 UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

AUG 1 0 2007

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

SOUTHERN DIVISION
* * * * * * * * * * * * * *

*

*

*

*

*

*

*

*

*

*

*

*~~Q~J*.*-~J..~~

*
EQUAL EMPLOYMENT OPPORTUNITY *

CIV 04-4215

COMMISSION,

*

Plaintiff, *

*

RICHELLE DOOLEY and

*

ANGIE GACKIE,

*

*

Plaintiffs - Intervenors,

*

*

-vs-

*

* SIOUXLAND ORAL MAXILLOFACIAL *

MEMORANDUM OPINION AND ORDER RE:
POSTTRIAL MOTIONS

SURGERY ASSOCIATES, L.L.P.,

*

* Defendant. *

****************************************************

After the jury on April 6, 2007, rendered its verdict in favor of Plaintiff-Intervenor Angie

Gacke in the amount of $5,757.00, and its verdict in favor of Plaintiff-Intervenor Richelle Dooley

in the amount of $15,341.00, this Court on April 10, 2007, entered judgements in accordance with

the jury verdicts in favor of Plaintiff Equal Employment Opportunity Commission (EEOC) and

Plaintiff-Intervenors Angie Gacke and Richelle Dooley and against Defendant Siouxland Oral

Maxillofacial Surgery Associates, L.L.P. (Siouxland). Doc. 136, 137. In these judgments the Court

also ordered that if the Plaintiffs were pursuing their requests for attorney fees that they proceed

under D.S.D. CIV. LR 54.1. Although this Court intended to allow for prejudgment interest on the

jury's awards for lost wages, the judgments were silent as to prejudgment interest.

On, May 10, 2007, Plaintiff EEOC filed a document entitled "Plaintiff EEOC's Motion for

Equitable Relief." Doc. 151. The EEOC requested that the Court award Gacke $6,317.00 and

Dooley $20,408.00 in back wages and that the Court further award prejudgment interest, calculated

at the IRS prime rate compounded annually, to be added to any back pay awarded by this Court. The

EEOC submitted a number of requests for affirmative relief. First, the EEOC requested that this

Court enjoin Siouxland from engaging in any employment practice that discriminates on the basis

of sex, including pregnancy, and also enjoin Siouxland from retaliating against any employee or former employee who complains of discrimination, opposes any unlawful act or practice, or files a charge or participates in any manner in an investigation, proceeding, or hearing under Title VII. Second, the EEOC requested that Siouxland be required to implement affirmative relief, including but not limited to, conducting employee training on Title VII and retaliation, posting a notice regarding sex and pregnancy discrimination and retaliation, reviewing and/or revising its employment discrimination policies, and permitting the EEOC to monitor compliance with the Court's Order. Third, the EEOC requested that Siouxland be required to post a notice regarding its intent to comply with Title VII, advising its employees of their right to complain about or oppose discrimination free from retaliation, and advising its employees of their right to contact federal and state anti-discrimination agencies. Pourth, the EEOC requests that Siouxland be required to maintain all records of employment decisions regarding hiring, firing and promotion in accordance with 29 C.P.R. § 1602.14 and advise the EEOC of all decisions covered by 29 C.F.R. § 1602.14. Fifth, the EEOC requested that Siouxland be required to post a notice to its employees advising them of the outcome of this lawsuit and of Siouxland's obligation and commitment to maintaining a workplace free of discrimination and retaliation.
Siouxland responded to Plaintiff EEOC's Motion for Equitable Relief by contending that the motion was untimely and failed to identify its legal basis. Doc. 161. Siouxland argued that because requests for prejudgment interest, increased back pay and injunctive relief are requests to amend the judgments, the EEOC's motion is untimely under Federal Rule of Civii Procedure 59(e). Before the EEOC filed its reply to this response, the EEOC filed a notice of appeal from the judgments. Doc. 162. Siouxland has subsequently filed a notice of conditional cross-appeal. Doc. 04-4215.
Both Plaintiff-Intervenors submitted motions for attorney fees and costs. Doc. 138, 142. Siouxland submitted objections to the motions for attorney fees. Doc. 156. Plaintiff- Intervenors then submitted a joint reply in support of the motions for attorney fees and costs. Doc. 165. Siouxland then submitted a motion to strike Plaintiff- Intervenors' Joint Reply Brief on the grounds that the Local Rule of Practice 54.1 (C) and FED. R. CIV. P. 54(d)(2)(B), (C) and(D), do not allow for a reply brief. Doc. 166.
2

THE MOTION FOR EQUITABLE RELIEF SHAlL BE CONSTRUED AS A MOTION FOR RELIEF FROM JUDGMENT.
Siouxland argues that the requests for prejudgment interest and requests for back pay and injunctive relief are, in essence, requests under Federal Rule of Civil Procedure 59 to amend the April 10, 2007 Judgments, that the EEOC's Motion, which was filed twenty-nine days after the entry of the Judgments, is untimely because it was filed more than 10 days after entry of judgment, and that the Court is without jurisdiction to entertain it. 1 Siouxland relies upon Reyher v. Champion Intern. Corp., 975 F.2d483 (8th Cir. 1992), as support for its position that a motion for prejudgment interest is not timely if not made within ten days after entry of judgment. In the Reyher case, however, the judgment in issue was treated by both parties as a final judgment, the district court's docket entry after the judgment noted "terminates case," and the moving party specifically disclaimed reliance upon Federal Rule of Civil Procedure 60(b). Reyher, 975 F.2d 487,488. The E.E.O.C. however, is not contending the judgment is final, but rather, is contending that it has made a timely request for the Court to provide relief which is within the Court's power and discretion to provide. 2
Federal Rule of Civil Procedure 8(e)(I) provides that "[nlo technical forms of pleading or motions are required." FED. R. CIV. P. 8(f) provides: "All pleadings shall be so construed as to do substantial justice."A motion, however styled, will be construed to be the type properforthe relief requested, and the party's label for the motion is not controlling. United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir. 1984)(Notices "for rehearing and stay of execution, condemnation and forfeiture" should have been considered as motion for relief from judgment or order). Since the EEOC.' s motion was made within the time to file an appeal, and is not used as a substitute for appeal, this Court will consider the motion under Federal Rule of Civil Procedure 60.
IFederal Rule of Civil Procedure 59(e) provides: "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment."
'It is for the determination of the Eighth Circuit Court of Appeals whether the judgments in issue are appealable as final decisions. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742 (1976)(district court's order which was a declaratory judgment on the issue of liability, but left unresolved requests for injunction, compensatory and exemplary damages, and attorney fees was not appealable as a final decision).
3

Cf CRI, Inc. v. Watson, 608 F.2d 1137 (8th Cir. 1979).
Generally, the '" filing of a notice of appeal ... confers jurisdiction on the court of appeals and divests the district court off] its control over those aspects of the case involved in the appeal.' " Liddell v. Board ofEduc., 73 F.3d 819, 822 (8th Cir.1996) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). A district court, however, is permitted to consider a Rule 60(b) motion on the merits and deny it even if an appeal is already pending, and a separate appeal may thereafter be taken to challenge the denial of the motion. If, however, the district court decides to grant the Rule 60(b) motion, the parties should request the court of appeals to remand the case so a proper order can be entered accordingly. Hunterv. Underwood, 362 F.3d 468, 475 (8th Cir. 2004); Pioneer Ins. Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir.1977). Prejudgment Interest
FED. R. CIY. P. 60(b)(l) allows the Court to relieve a party from mistake, inadvertence, surprise or excusable neglect, if the motion is made within a reasonable time and not more than one year after judgment has been entered. FED. R. CIY. P. 60(b)(1) also applies to mistake and inadvertence of the Court. See 11 CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 2858 (1995). It is the Court's usual practice when prejudgment interest is warranted to enter an order allowing both parties to submit their calculations, and then to allow for prejudgment interest after considering the parties' calculations. See, e.g., Lindholm v. Hassan, CIY. NO. 04-4025, Doc. 82 (D.S.D. May 27, 2005). It was the Court's intention to grant prejudgment interest in this case, and the Court will, if the matter is remanded to the Court, and after Siouxland has had an opportunity to submit its proposed calculation of prejudgment interest, grant relief under FED. R. CIY. P. 60(b)(1) for the Court's inadvertent failure to follow its custom with regard to prejudgment interest. See James E. Brady & Co., Inc., v. Eno, 992 F.2d 864, 870 (8th Cir. 1993)(posttrial motions granted to modify judgments to conform to usual practice of entering one final net jUdgment).
In addition, FED. R. CIY. P. 60(b)(6) allows the Court to relieve a party from ajudgment for "any other reason justifying relief from the operation from the judgment," so long as the motion is made within a reasonable time. FED. R. CIY. P. 60(b)(6) is another basis for allowing the judgments in this case to be corrected to include prejudgment interest. See Scotts Co. v. Central Garden & Pet Co., 403 F.3d 781, 792 (6th Cir. 2005)(although motion for entry of prejudgment interest filed 19
4

days after entry ofjudgment was untimely as aRule 59(e) motion, it was appropriately granted under FED. R. Cry. P. 60(b)(6)). Request Pertaining to Back Wages
The EEOC is requesting that the Court award Gacke $6,317.00 and Dooley $20,408.00 in back wages as opposed to enteringjudgment in accordance with the jury's verdict in favor of Gacke in the amount of $5,757.00, and its verdict in favor of Dooley in the amount of $15,341.00. The Court has reviewed the evidence that was presented at trial regarding back wages and believes that the jury's verdicts were sufficiently supported by the evidence. The Court is denying the motion to modify the awards for back wages. Requests Pertaining to Injunctive and Other Affirmative Relief
The EEOC submitted a number of requests for affirmative relief including injunctive relief in its Complaint and Motion for Equitable Relief. The EEOC requested that this Court enjoin Siouxland from engaging in any employment practice that discriminates on the basis of sex, including pregnancy, and also enjoin Siouxland from retaliating against any employee or former employee who takes any action in opposition to discrimination. No evidence has been presented that Siouxland retaliated against any person who opposed any discriminatory actions of Siouxland, and the Court does not believe injunctive relief regarding retaliation is necessary or proper in this case.
District courts have broad discretion to grant injunctive relief once discrimination has been established in a Title VII action. See Briscoe v. Fred's Dollar Store. Inc., 24 F.3d 1026, 1028 (8th Cir. 1994); Taylor v. Teletype Corp., 648 F.2d 1129, 1135 (8th Cir. 1981). The Court, however, does not believe the imposition of any injunctive relief is warranted in this case. This case does not present a situation where an employer has engaged in a consistent practice of discrimination. Cf Briscoe v. Fred's Dollar Store, Inc., 24 F.3d at 1029. The two Plaintiff-Intervenors were the only employees who presented evidence of having been discriminated against by Siouxland. In addition, the discrimination that took place in this action occurred in 2001 and 2002. Since more than five years have elapsed since the last discriminatory action occurred, the Court does not believe injunctive relief is appropriate in this case. See Taylor v. Teletype Corp., 648 F.2d 1129 (8th Cir. 1981)(issuance of injunction held premature in light of finding that no discrimination occurred for the three years immediately preceding the issuance of the injunction).
5

The Court has entered judgements for compensatory damages in accordance with the jury verdicts. The Court intends to award attorney fees. The Court believes that under the circumstances of this case, the goals of Title VII can be met without ordering the affirmative relief requested by the EEOC. Accordingly, the request for this affirmative relief is denied.
SIOUXLAND'S MOTION TO STRIKE THE INTERVENORS' JOINT REPLY BRIEF IN SUPPORT OF MOTIONS FOR ATTORNEY FEES AND COSTS IS DENIED. Siouxland has moved to strike the Intervenors' joint reply brief in support of motions for
attorney fees and costs. Doc. 166. Siouxland contends that Intervenors violated both Local Rule 54.l( C) and FED. R. CIV. P. 54 by submitting ajoint reply brief and supplementary exhibits without direction by the Court to do so. Even if there has been noncompliance with the rules, the Court does not believe the interests of justice would be best served by striking the joint reply brief and supplementary exhibits. The Court will, however, allow Siouxland to submit a response to the new material within 10 days of the date of this Order, and no further materials shall be submitted thereafter by any party without further order of this Court. Accordingly,
IT IS ORDERED: 1. That the EEOC's motion for equitable relief (Doc. 151) shall be construed as a motion for relief from judgment under Rule 60;
2. That if the matter is remanded to the Court from the Eighth Circuit Court of Appeals, Siouxland shall have the opportunity to submit its proposed calculation of prejudgment interest, and the Court will then award prejudgment interest on the jury verdicts in this case;
3. That the EEOC's requests that the Court modify the awards for back wages, and order injunctive relief and other affirmative relief are denied; and
4. Siouxland's motion to strike the Intervenors' joint reply brief in support of motions for attorney fees and costs (Doc. 166) is denied, but Siouxland will be allowed to submit a response to the joint reply brief and supplementary exhibits within 10 days of the date of this
6

Order, and no further materials shall be submitted thereafter by any party without further order of this Court.

'(l-"

\0 . . Dated this

day of August, 2007.

BY THE COURT:

awrence L. Piersol United States District Judge

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APPEAL, CLOSED, MOTREF

U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:04-cv-04215-LLP

Equal Employment Opportunity Commission v. Siouxland Oral Maxillofacial Surgery Associates, L.L.P. Assigned to: U. S. District Judge Lawrence L. Piersol Case in other court: 07-02419/07-02420 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 12/28/2004 Date Terminated: 04/11/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Anjuli Kelotra E.E.O.C. 303 E. 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1378 Fax: (303) 866-1375 Email: anjuli.kelotra@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kim R. Rogers Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303) 866-1361 Fax: (303) 866-1375 Email: kim.rogers@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loretta F. Medina Equal Employment Opportunity Commission New Mexico District Office 505 Marquette NW Suite 900 Albuquerque, NM 87102 (505) 248-5230

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Intervenor Plaintiff Richelle Dooley Intervenor Plaintiff Angie Gacke V. Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P.
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08/17/2007 01:19 PM
Email: Loretta.medina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy A. Weeks Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303) 866-1347 Fax: (303) 866-1375 Email: nancy.weeks@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Ryan Pekas 115 S. Main Ave. Sioux Falls, SD 57104 339-8983 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Ryan Pekas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael L. Luce Davenport, Evans, Hurwitz & Smith PO Box 1030 Sioux Falls, SD 57101-1030 336-2880 Fax: 335-3639 Email: mluce@dehs.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Brunick Simons Davenport, Evans, Hurwitz & Smith
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PO Box 1030 Sioux Falls, SD 57101-1030 336-2880 Fax: 335-3639 Email: ssimons@dehs.com ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

12/28/2004 12/28/2004 12/28/2004 01/13/2005
01/13/2005 02/14/2005
02/28/2005 02/28/2005 02/28/2005
02/28/2005 02/28/2005
03/17/2005 03/21/2005

1 COMPLAINT with Jury Demand. 2 Summons(es) issued - mailed, filed by Equal Employment Opportunity Commission.(SKM) (Entered: 12/28/2004)
2 CIVIL COVER SHEET (SKM) (Entered: 12/28/2004)
3 Summons Issued as to Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (SKM) (Entered: 12/28/2004)
4 MOTION to Intervene by Rachelle Dooley and Angie Gacke and upon intervention wish to dismiss their separate claim under CIV04-4516. (LMZ) (Entered: 01/20/2005)
5 MEMORANDUM in Support of 4 MOTION to Intervene . (LMZ) (Entered: 01/20/2005)
6 WAIVER OF SERVICE of Summons Returned Executed by Equal Employment Opportunity Commission. Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (JMM, ) (Entered: 02/14/2005)
7 ANSWER to Complaint by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.(Simons, Susan) (Entered: 02/28/2005)
8 DEMAND for Trial by Jury by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 02/28/2005)
9 RESPONSE to Motion re 4 MOTION to Intervene filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 02/28/2005)
10 MOTION to Sever by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 02/28/2005)
11 MEMORANDUM in Support re 10 MOTION to Sever filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1)(Simons, Susan) (Entered: 02/28/2005)
12 RESPONSE to Motion re 10 MOTION to Sever filed by Equal Employment Opportunity Commission. (Weeks, Nancy) (Entered: 03/17/2005)
13 RESPONSE to 10 Motion to Sever by Intervener plaintiffs Rachelle Dooley and

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03/23/2005 03/24/2005
03/31/2005 05/27/2005 09/01/2005 09/02/2005 09/12/2005 09/23/2005
10/03/2005 01/17/2006 02/23/2006 03/31/2006
04/10/2006 04/10/2006 04/10/2006

Angie Gackie. (SKM) (Entered: 03/21/2005)
14 CORPORATE Disclosure Statement by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/23/2005)
15 REPLY to Motion Reponse re 10 MOTION to Sever filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/24/2005)
16 ORDER granting 4 Motion to Intervene. Signed by Judge Lawrence L. Piersol on 3/31/05. (DJP) (Entered: 04/01/2005)
18 MEMORANDUM OPINION AND ORDER denying 10 Motion to Sever . Signed by Judge Lawrence L. Piersol on 5/27/05. (SLL, ) (Entered: 05/27/2005)
20 NOTICE of Appearance by Kim R. Rogers on behalf of Equal Employment Opportunity Commission (Rogers, Kim) (Entered: 09/01/2005)
21 ORDER For Form 35 Report and Scheduling Information. Signed by Judge Lawrence L. Piersol on 9/2/05. (LMZ) (Entered: 09/02/2005)
23 REPORT of Rule 26(f) Planning Meeting. (Rogers, Kim) (Entered: 09/12/2005)
24 SCHEDULING ORDER: Discovery due by 5/1/2006; Motions due by 6/2/2006; Motion Hearing set for 9/18/2006 01:30 PM before Chief Judge Lawrence L. Piersol; Pretrial Conference set for 9/18/2006 01:30 PM before Chief Judge Lawrence L. Piersol; Jury Trial set for 10/17/2006 09:30 AM before Chief Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 9/23/05. (SKM) (Entered: 09/23/2005)
26 RULE 26 Disclosures by Richelle Dooley, Angie Gacke. (SKM) (Entered: 10/04/2005)
27 RULE 26 Expert Preliminary Disclosure by Richelle Dooley, Angie Gacke. (Attachments: # 1 Richard C. Flugge Resume)(DJP) (Entered: 01/17/2006)
Settlement Conference held on 2/23/2006 before Judge John E. Simko(CG) (Entered: 03/07/2006)
28 Joint MOTION to Extend Deadlines Extension of Scheduling Order by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/31/2006)
29 NOTICE to Take Deposition of Richelle Dooley (Simons, Susan) (Entered: 04/10/2006)
30 NOTICE to Take Deposition of Angie Gacke (Simons, Susan) (Entered: 04/10/2006)
31 AMENDED RULE 16 SCHEDULING ORDER: Discovery due by 7/24/2006; Motions due by 8/25/2006; Motion Hearing set for 10/30/2006 09:00 AM before U. S. District Judge Lawrence L. Piersol; Pretrial Conference set for 10/30/2006

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04/12/2006
04/12/2006 04/12/2006 04/12/2006 04/18/2006 04/19/2006
05/03/2006 05/09/2006
05/31/2006 05/31/2006 05/31/2006 05/31/2006

09:00 AM before U. S. District Judge Lawrence L. Piersol; Jury Trial set for 12/5/2006 09:30 AM before U. S. District Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 4/10/06. (SKM) (Entered: 04/11/2006)
33 First MOTION to Compel Discovery by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit: Charge of Discrimination; # 2 Exhibit: Letter from Carol Garry to Kathleen Fjellestad dated 10/30/02; # 3 Exhibit: Angie Gacke Statement of July 1, 2002; # 4 Exhibit: Charge of Discrimination; # 5 Exhibit: Sherena Kost Letter to Human Relastions dated 5/8/02; # 6 Exhibit: Cardenas vs. Prudential, US District Court, District of Minnesota)(Rogers, Kim) (Entered: 04/12/2006)
34 MOTION to Seal Document Exhibit F by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 04/12/2006)
35 Exhibit F to doc 33. (Rogers, Kim) Modified on 4/13/2006-unsealed document pursuant to order 36 (SKM). (Entered: 04/12/2006)
36 ORDER denying 34 Motion to Seal Document. Signed by Judge John E. Simko on 4/12/06. (SKM) (Entered: 04/13/2006)
38 ORDER REFERRING MOTION: 33 First MOTION to Compel Discovery filed by Equal Employment Opportunity Commission, Signed by Judge Lawrence L. Piersol on 4/18/06. (SLL, ) (Entered: 04/19/2006)
40 MEMORANDUM in Opposition re 33 First MOTION to Compel Discovery filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1 Exhibit A: Response of Dooley to Sioux Falls Human Relations Commission# 2 Exhibit B: Siouxland Oral notes# 3 Exhibit C: Siouxland Oral Policy Manual# 4 Exhibit D: Siouxland Oral employee leave records# 5 Exhibit E: SiouxlandOral - EEO Training)(Simons, Susan) (Entered: 04/19/2006)
41 REPLY to 40 Memorandum in Opposition to Motion,, 33 Motion to Compel, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A: Excerpt from Leave Policy)(Rogers, Kim) (Entered: 05/03/2006)
42 ORDER granting 33 Motion to Compel production of requested documents in requests for Production 7 and 8; deferring request for production of documents showing defendant's net worth. Signed by Judge John E. Simko on 5/9/06. (SLL, ) (Entered: 05/09/2006)
44 Amended NOTICE to Take Deposition of Richelle Dooley (Simons, Susan) (Entered: 05/31/2006)
45 Amended NOTICE to Take Deposition of Angie Gacke (Simons, Susan) (Entered: 05/31/2006)
46 NOTICE to Take Deposition of Kathleen Fjellstad (Rogers, Kim) (Entered: 05/31/2006)
47 NOTICE to Take Deposition of Jenny DeVries (Rogers, Kim) (Entered:

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05/31/2006 05/31/2006 07/05/2006 07/05/2006 07/05/2006 07/06/2006 08/24/2006 08/24/2006 08/24/2006
08/24/2006
08/24/2006 08/24/2006 08/24/2006 08/24/2006

05/31/2006)
48 NOTICE to Take Deposition of Rebecca Akerson (Rogers, Kim) (Entered: 05/31/2006)
49 NOTICE to Take Deposition of Shelly Hofer (Rogers, Kim) (Entered: 05/31/2006)
50 NOTICE to Take Deposition of Sherena Kost (Rogers, Kim) (Entered: 07/05/2006)
51 NOTICE to Take Deposition of Dr. H.A. Akerson (Rogers, Kim) (Entered: 07/05/2006)
52 NOTICE to Take Deposition of Dr. Bernard Balaban (Rogers, Kim) (Entered: 07/05/2006)
53 NOTICE to Take Deposition of Corporation Pursuant to Fed. R. Civ. P. 30(b)(6) (Rogers, Kim) (Entered: 07/06/2006)
54 MOTION for Summary Judgment by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
55 MEMORANDUM in Support re 54 MOTION for Summary Judgment filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
56 STATEMENT OF Undisputed MATERIAL FACTS re 54 Motion for Summary Judgment, 55 Memorandum in Support of Motion by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
57 APPENDIX by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 56 Statement of Material Facts. (Attachments: # 1 H.A. Akerson Deposition# 2 Rebecca Akerson Deposition# 3 B. Balaban Deposition# 4 Richelle Dooley Deposition# 5 Kathleen Fjellestad Deposition# 6 Angie Gacke Deposition# (7) Jennifer Hanson# (8) Shelley Hofer Deposition# 9 Sherena Kost# (10) Exhibits from Depositions# (11) EEOC Responses to Defendant's Request for Production# 12 Exhibit from Defendant's Supp Answers to EEOC's Discovery)(Simons, Susan) (Entered: 08/24/2006)
58 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
59 MOTION for Separate Trials by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
60 MEMORANDUM in Support re 59 MOTION for Separate Trials filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
61 DESIGNATION of Expert Witness(es) by Siouxland Oral Maxillofacial Surgery

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08/25/2006 08/25/2006
08/30/2006 09/07/2006 09/08/2006 09/08/2006 09/12/2006 09/12/2006 09/13/2006 09/13/2006
09/13/2006

Associates, L.L.P.. (Attachments: # 1 Jim Carroll's Report# 2 Curriculum Vitae of Jim Carroll# 3 List of Cases)(Simons, Susan) (Entered: 08/24/2006)
62 MOTION to Seal Document 57 Appendix,, Tabs 7, 8, 10 and 11 by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/25/2006)
63 APPENDIX by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 57 Appendix,, Redacted, Tabs 7, 8, 10 and 11. (Attachments: # 1 Jennifer Hanson# 2 Shelley Hofer# 3 Exhibits from Depositions# 4 Plaintiff EEOC's Responses to Defendant's Request for Production)(Simons, Susan) (Entered: 08/25/2006)
64 Amended MOTION to Seal Document 63 Appendix,, 62 MOTION to Seal Document 57 Appendix,, Tabs 7, 8, 10 and 11 by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/30/2006)
65 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 09/07/2006)
66 ORDER granting 64 Motion to Seal Document 57 Appendix, Tabs 7, 8, 10 and 11,. Signed by Judge Lawrence L. Piersol on 9/8/06. (SLL, ) (Entered: 09/08/2006)
SEALING Tabs 7, 8, 10, and 11 of Doc. 57, pursuant to Order of Court dated 9/8/06 (SLL, ) (Entered: 09/08/2006)
NOTICE of Filing Error: Motion to Strike65 filed by Equal Employment Opportunity Commission, FILED IN ERROR (Rogers, Kim) (Entered: 09/12/2006)
68 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 09/12/2006)
69 MEMORANDUM in Opposition re 68 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)
70 AFFIDAVIT of Susan Brunick Simons re 69 Memorandum in Opposition to Motion Objection and Joint Motion to Strike Defendant's Expert James Carroll. (Attachments: # 1 September 6, 2005, correspondence# 2 September 12, 2005, email# 3 January 17, 2006 correspondence# 4 January 23, 2006 correspondence# 5 March 15, 2006 correspondence# 6 April 11, 2006 correspondence# 7 June 19, 2006 correspondence# 8 June 23, 2006 correspondence# 9 Defendant's Expert Disclosure# 10 September 6, 2006 correspondence# 11 Itemization of fees)(Simons, Susan) (Entered: 09/13/2006)
71 MOTION for Sanctions by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)

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09/13/2006 09/13/2006 09/13/2006 09/15/2006
09/15/2006 09/20/2006 09/20/2006
09/20/2006 09/20/2006 10/02/2006 10/02/2006 10/02/2006

72 MEMORANDUM in Support re 71 MOTION for Sanctions filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)
73 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)
74 Joint MOTION to Extend Deadlines for Briefing Schedule by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 09/13/2006)
75 SECOND AMENDED RULE 16 SCHEDULING ORDER: Motion Hearing set for 10/30/2006 09:00 AM before U. S. District Judge Lawrence L. Piersol; Pretrial Conference set for 10/30/2006 09:00 AM before U. S. District Judge Lawrence L. Piersol; Jury Trial set for 12/5/2006 09:30 AM before U. S. District Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 9/15/06. (SKM) (Entered: 09/15/2006)
77 ORDER REFERRING MOTION: 71 MOTION for Sanctions filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P. referred to Mag. John Simko for a report and recommendation. Signed by Judge Lawrence L. Piersol on 9/15/06. (SKM) (Entered: 09/18/2006)
79 MEMORANDUM in Opposition re 54 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Weeks, Nancy) (Entered: 09/20/2006)
80 AFFIDAVIT in Opposition re 54 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Ackerson depo# 2 Balaban depo# 3 Dooley depo# 4 Fjellestad depo# 5 Gacke depo# 6 Hanson depo# 7 Hofer depo# 8 Kost depo# 9 Exhibit 1# 10 Exhibit 2# 11 Exhibit 3# 12 Exhibit 6# 13 Exhibit 7# 14 Exhibit 8# 15 Exhibit 9# 16 Exhibit 11# 17 Exhibit 13# 18 Exhibit 14# 19 Exhibit 16# 20 Exhibit 19# 21 Exhibit 21# 22 Exhibit 23# 23 Exhibit 27# 24 Exhibit 28# 25 Exhibit 29# 26 Exhibit 30# 27 Exhibit 35# 28 Exhibit 40)(Weeks, Nancy) (Entered: 09/20/2006)
81 RESPONSE to Motion re 54 MOTION for Summary Judgment Plaintiffs' Disputed Facts filed by Equal Employment Opportunity Commission. (Weeks, Nancy) (Entered: 09/20/2006)
82 MEMORANDUM in Opposition re 59 MOTION for Separate Trials filed by Equal Employment Opportunity Commission. (Attachments: # 1 King v. West)(Weeks, Nancy) (Entered: 09/20/2006)
83 RESPONSE to Motion re 71 MOTION for Sanctions filed by Richelle Dooley, Angie Gacke. (SKM) (Entered: 10/02/2006)
84 AFFIDAVIT of Richard C. Flugge re 83 Response to Motion. (SKM) (Entered: 10/02/2006)
85 CERTIFICATE OF SERVICE by Richelle Dooley, Angie Gacke (SKM)

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11/22/2006 12/15/2006 01/22/2007

(Entered: 10/02/2006)
86 REPLY to 54 Motion for Summary Judgment Brief in Support of filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
87 RESPONSE to 81 Response to Motion EEOC/Intervenors' Disputed Facts filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
88 AFFIDAVIT of Sherena Kost re 87 Response Defendant's Response to EEOC/Intervenors' Disputed Facts. (Simons, Susan) (Entered: 10/04/2006)
89 REPLY to 59 Motion for Miscellaneous Relief in Support of Defendant's Motion for Separate Trials filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
90 REPLY to 71 Motion for Sanctions in Support of Defendant's Motion for Sanctions filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
91 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
92 AFFIDAVIT of Susan Brunick Simons re 71 MOTION for Sanctions Supplemental. (Attachments: # 1 Statement of Costs to prepare Reply re Motion for Sanctions)(Simons, Susan) (Entered: 10/09/2006)
93 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/09/2006)
94 MINUTES - Motion Hearing held on 10/30/2006 re 68 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll filed by Equal Employment Opportunity Commission,, 59 MOTION for Separate Trials filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.,, 54 MOTION for Summary Judgment filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.,, 71 MOTION for Sanctions filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.,, Final Pretrial Conference held on 10/30/2006 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM, ) Modified on 11/22/2006 (JMM, ). (hearing was held on 10/30/06, minutes mistakenly state 10/29/06) (Entered: 10/30/2006)
95 THIRD AMENDED RULE 16 SCHEDULING ORDER: Jury Trial set for 3/27/2007 09:30 AM before U. S. District Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 11/22/06. (SKM) (Entered: 11/24/2006)
97 RULE 26 Disclosures by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Rebuttal Expert Report)(Rogers, Kim) (Entered: 12/15/2006)
98 NOTICE of Appearance by Loretta F. Medina on behalf of Equal Employment

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02/02/2007 02/12/2007
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03/09/2007
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Opportunity Commission (LMZ) (Entered: 01/22/2007)
99 NOTICE to Take Deposition of James Carroll by Richelle Dooley, Angie Gacke.(SKM) (Entered: 02/02/2007)
100 STATUS REPORT Notice of Compliance with Court Order by Equal Employment Opportunity Commission. (Attachments: # 1 Letter dated 2/2/07 Attachment # 2 Letter dated 2/7/07 Attachment #(3) Regional Attorneys' Manual Part 3 "Conducting Litigation")(Rogers, Kim) Descriptive text added on 2/13/2007 (Lovro, Sharon). (Entered: 02/12/2007)
101 REPLY to 100 Status Report, to Plaintiff EEOC's Notice of Compliance with Court Order and Defendant's Notice of Compliance with Court Order filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1 January 11, 2007, Telephone Message# 2 January 19, 2007, letter from Attorney Pekas# 3 January 25, 2007, telephone message)(Simons, Susan) (Entered: 02/13/2007)
102 MEMORANDUM OPINION ORDER RE: SUMMARY JUDGMENT AND OTHER MOTIONS granting 54 motion for summary judgment with regard to Plaintiffs' pattern and practice discrimination claims and denying 54 Motion for Summary Judgment with regard to disparate treatment claims of the EEOC, Dooley, and Gacke; denying 59 Motion for separate trials; denying 68 Motion to Strike Designation of Expert Witness James Carroll; denying 71 Motion for Sanctions. Signed by Judge Lawrence L. Piersol on 3/9/07. (SLL) (Entered: 03/12/2007)
104 ORDER FOR TRIAL: Jury Trial set for 4/3/2007 09:30 AM before U. S. District Judge Lawrence L. Piersol Signed by Judge Lawrence L. Piersol on 3/19/07. (SLL) (Entered: 03/20/2007)
106 Witness List by Equal Employment Opportunity Commission.(Rogers, Kim) (Entered: 03/20/2007)
107 Exhibit List by Equal Employment Opportunity Commission.. (Attachments: # 1 Exhibit List)(Rogers, Kim) (Entered: 03/20/2007)
108 MOTION Release of Juror Questionnaires by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/20/2007)
109 Witness List by Siouxland Oral Maxillofacial Surgery Associates, L.L.P..(Simons, Susan) (Entered: 03/20/2007)
110 Exhibit List by Siouxland Oral Maxillofacial Surgery Associates, L.L.P...(Simons, Susan) (Entered: 03/20/2007)
111 MOTION Limit Examination Under Rule 611 by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/20/2007)
112 MEMORANDUM in Support re 111 MOTION Limit Examination Under Rule 611 filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons,

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03/20/2007 03/20/2007
03/20/2007
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Susan) (Entered: 03/20/2007)
113 Proposed Jury Instructions by Siouxland Oral Maxillofacial Surgery Associates, L.L.P..(Simons, Susan) (Entered: 03/20/2007)
114 MOTION IN LIMINE: Part 1: to exclude evidence relating to settlement discussions; Part 2: to exclude expert opinions that have not been previously disclosed; Part 3: to prohibit Plaintiffs' counsel from making a golden rule argument; Part 4: to exclude evidence regarding front pay; Part 5: to exclude the Administrative Agency findings; Part 6: to exclude evidence of policies adopted and personnel decisions after 2002; Part 7: to exclude evidence of Kost's performance appraisal; Part 8: to exclude evidence or argument that Siouxland engaged in a pattern and practice of discrimination Part 9: to exclude evidence that Siouxland did not rehire Dooley Part 10: to exclude evidence of and references to ADA and FMLA by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/20/2007)
115 MEMORANDUM in Support re 114 MOTION IN LIMINE: Part 1: to exclude evidence relating to settlement discussions; Part 2: to exclude expert opinions that have not been previously disclosed; Part 3: to prohibit Plaintiffs' counsel from making a golden rule argument; Part 4: to e filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1 New Hire Document - H. Kietzmann# 2 New Hire Document - D. Fogelson)(Simons, Susan) (Entered: 03/20/2007)
116 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Jury Instructions)(Rogers, Kim) (Entered: 03/20/2007)
117 ORDER granting 108 Motion for release of juror questionnaires. Signed by Judge Lawrence L. Piersol on 3/22/07. (JMM) (Entered: 03/23/2007)
118 Amended Witness List by Equal Employment Opportunity Commission.(Rogers, Kim) Modified on 3/30/2007 (Meisenheimer, Jackie). (Entered: 03/26/2007)
119 OBJECTIONS by Plaintiff Equal Employment Opportunity Commission re 113 Proposed Jury Instructions. (Rogers, Kim) (Entered: 03/27/2007)
120 RESPONSE to Motion re 111 MOTION Limit Examination Under Rule 611 filed by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 03/27/2007)
121 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 116 Proposed Jury Instructions. (Attachments: # 1 Defendant's Undisputed Material Facts Not Disputed by EEOC and Intervenors# 2 South Dakota Pattern Jury Instruction 2-12)(Simons, Susan) (Entered: 03/27/2007)
122 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 107 Exhibit List. (Simons, Susan) (Entered: 03/27/2007)
123 RESPONSE to Motion re 114 MOTION IN LIMINE: Part 1: to exclude

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04/02/2007
04/03/2007 04/03/2007 04/03/2007 04/04/2007 04/05/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/10/2007

evidence relating to settlement discussions; Part 2: to exclude expert opinions that have not been previously disclosed; Part 3: to prohibit Plaintiffs' counsel from making a golden rule argument; Part 4: to e filed by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 03/27/2007)
125 MEMORANDUM OPINION AND ORDER denying 111 Motion to Limit Examination under Fed.R.Evid.611(a). Signed by Judge Lawrence L. Piersol on 4/2/2007. (LMZ) (Entered: 04/02/2007)
Voir Dire held on 4/3/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM) (Entered: 04/06/2007)
Jury Trial began on 4/3/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR #1) (JMM) (Entered: 04/06/2007)
128 Jury List.(JMM) (Entered: 04/06/2007)
Jury Trial continued on 4/4/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR#1) (JMM) (Entered: 04/09/2007)
Jury Trial continued on 4/5/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM) (Entered: 04/09/2007)
127 Proposed Jury Instructions by Siouxland Oral Maxillofacial Surgery Associates, L.L.P..(Simons, Susan) (Entered: 04/06/2007)
129 Defendant's Additional Proposed Jury Instruction(JMM) (Entered: 04/09/2007)
130 MINUTES - Jury Trial completed on 4/6/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM) (Entered: 04/09/2007)
131 VERDICT in favor of plaintiff Angie Gacke and against Siouxland Oral Maxillofacial Surgery in the amount of $5,757.00.(JMM) (Entered: 04/09/2007)
132 VERDICT in favor of plaintiff Richelle Dooley and against Siouxland Oral Maillofacial Surgery in the amount of $15,341.00.(JMM) (Entered: 04/09/2007)
133 Preliminary Jury Instructions.(JMM) (Entered: 04/09/2007)
134 Jury Instructions read to the jury by the Court(JMM) (Entered: 04/09/2007)
135 Jury Instructions with cites(JMM) (Entered: 04/09/2007)
148 Exhibit List by Equal Employment Opportunity Commission, Richelle Dooley, Angie Gacke.(JMM) (Entered: 05/10/2007)
149 Exhibit List by Siouxland Oral Maxillofacial Surgery Associates, L.L.P...(JMM) (Entered: 05/10/2007)
136 JUDGMENT in favor of Equal Employment Opportunity Commission, Richelle Dooley against Siouxland Oral Maxillofacial Surgery Associates, L.L.P. in the amount of $15,341.00. Signed by Judge Lawrence L. Piersol on 4/10/07. (JMM) (Entered: 04/11/2007)

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04/11/2007
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05/23/2007
05/23/2007

137 JUDGMENT in favor of Equal Employment Opportunity Commission, Angie Gacke against Siouxland Oral Maxillofacial Surgery Associates, L.L.P. in the amount of $5,757.00. Signed by Judge Lawrence L. Piersol on 4/10/07. (JMM) (Entered: 04/11/2007)
MAILING both final Judgments to John Pekas (JMM) (Entered: 04/13/2007)
138 MOTION for Attorney Fees and Costs by Angie Gacke. (SKM) (Entered: 05/09/2007)
139 MEMORANDUM in Support re 138 MOTION for Attorney Fees and Costs filed by Angie Gacke. (SKM) (Entered: 05/09/2007)
140 AFFIDAVIT of John R. Pekas re 138 MOTION for Attorney Fees and Costs. (Attachments: # 1 Itemized Billing Statement)(SKM) (Entered: 05/09/2007)
141 CERTIFICATE OF SERVICE by Angie Gacke re 140 Affidavit, 138 MOTION for Attorney Fees, 139 Memorandum in Support of Motion (SKM) (Entered: 05/09/2007)
142 MOTION for Attorney Fees and Costs by Richelle Dooley. (SKM) (Entered: 05/09/2007)
143 MEMORANDUM in Support re 142 MOTION for Attorney Fees and Costs filed by Richelle Dooley. (SKM) (Entered: 05/09/2007)
144 AFFIDAVIT of John R. Pekas re 142 MOTION for Attorney Fees and Costs. (Attachments: # 1 Itemized Billing Statement)(SKM) (Entered: 05/09/2007)
145 CERTIFICATE OF SERVICE by Richelle Dooley re 144 Affidavit, 142 MOTION for Attorney Fees, 143 Memorandum in Support of Motion (SKM) (Entered: 05/09/2007)
146 BILL OF COSTS by Richelle Dooley, Angie Gacke. (SKM) (Entered: 05/09/2007)
147 AFFIDAVIT of John R. Pekas in support of 146 Bill of Costs. (SKM) (Entered: 05/09/2007)
150 BILL OF COSTS by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 05/10/2007)
151 MOTION Equitable Relief re137 Judgment, 136 Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Rogers, Kim) (Entered: 05/10/2007)
152 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 150 Bill of Costs, 146 Bill of Costs. (Simons, Susan) (Entered: 05/23/2007)
153 AFFIDAVIT of Sharon McConnell re 152 Objections to EEOC's and

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05/23/2007
05/23/2007 05/29/2007
05/29/2007 05/29/2007 05/29/2007
05/29/2007 05/30/2007 06/07/2007 06/08/2007 06/08/2007 06/08/2007 06/11/2007

Intervenors' Bill of Costs. (Attachments: # 1 Subpoena to Sharon McConnell)(Simons, Susan) (Entered: 05/23/2007)
154 AFFIDAVIT of Susan Brunick Simons re 152 Objections to EEOC's and Intervenors' Bill of Costs. (Attachments: # 1 Taxation of Costs June 1996# 2 Admission of Service# 3 March 26, 2007 Letter from John Pekas# 4 Subpoenas to Gacke, Dooley and R. Akerson# 5 Relevant portions of Defendant's Answers to EEOC's Discovery)(Simons, Susan) (Entered: 05/23/2007)
155 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 05/23/2007)
156 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 142 MOTION for Attorney Fees, 138 MOTION for Attorney Fees of Dooley and Gacke. (Attachments: # 1 Time Comparison Chart# 2 Relevant emails# 3 Deposition cover pages# 4 Contact with EEOC/Plaintiff Chart# 5 Contact with Clients Chart)(Simons, Susan) (Entered: 05/29/2007)
157 AFFIDAVIT of Jill Connelly re 156 Objections, to Attorney Fees. (Simons, Susan) (Entered: 05/29/2007)
158 AFFIDAVIT of Michael L. Luce re 156 Objections, to Attorney Fees. (Attachments: # 1 Relevant time records)(Simons, Susan) (Entered: 05/29/2007)
159 AFFIDAVIT of Susan Brunick Simons re 156 Objections, to Attorney Fees. (Attachments: # 1 Relevant time records# 2 Discovery document# 3 Relevant emails# 4 Notices of Depositions# 5 Relevant documents from Sioux Falls Human Relations Commission)(Simons, Susan) (Entered: 05/29/2007)
160 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 05/29/2007)
161 MEMORANDUM in Opposition re 151 MOTION Equitable Relief re137 Judgment, 136 Judgment filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 05/30/2007)
162 NOTICE by Equal Employment Opportunity Commission of Appeal re 136 137 (Attachments: # 1 Form A)(Weeks, Nancy) Modified on 6/12/2007 (Lovro, Sharon). (Entered: 06/07/2007)
163 NOTICE to Counsel re. notice of appeal (SLL) (Entered: 06/08/2007)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Fri Jun 8 10:32:56 CDT 2007 (Lovro, Sharon) (Entered: 06/08/2007)
COURT REPORTER Information: Jerry May,, 400 S. Phillips Ave., Sioux Falls SD 57104 - 605-330-6630 (SLL) (Entered: 06/12/2007)
165 REPLY BRIEF to Motion Reponse re 142 MOTION for Attorney Fees, 138 MOTION for Attorney Fees filed by Richelle Dooley, Angie Gacke. (JMM) (Entered: 06/12/2007)

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06/12/2007
06/12/2007
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166 MOTION to Strike 165 Reply to Motion Response Intervenors' Joint Reply Brief in Support of Motions for Attorney Fees and Costs by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 06/12/2007)
167 MEMORANDUM in Support re 166 MOTION to Strike 165 Reply to Motion Response Intervenors' Joint Reply Brief in Support of Motions for Attorney Fees and Costs filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 06/12/2007)
168 REPLY to 151 Motion for Miscellaneous Relief for Equitable Relief filed by Equal Employment Opportunity Commission. (Weeks, Nancy) (Entered: 06/15/2007)
169 NOTICE OF CONDITIONAL CROSS APPEAL as to 137 Judgment, 136 Judgment by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (SLL) . (Entered: 06/19/2007)
170 CERTIFICATE OF SERVICE by Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (SLL) (Entered: 06/19/2007)
171 Filing fee: $ 455.00, receipt number 400007274 (SLL) (Entered: 06/19/2007)
172 Appellant's Form A (SLL) (Entered: 06/19/2007)
173 NOTICE TO COUNSEL re Notice of Conditional Cross Appeal (SLL) (Entered: 06/19/2007)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Tue Jun 19 11:49:56 CDT 2007 (Lovro, Sharon) (Entered: 06/19/2007)
175 USCA Case Numbers 07-2419 and 07-2420 for 162 Notice of Appeal filed by EEOC, and 169 Notice of Cross Appeal filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (SKM) (Entered: 06/21/2007)
176 BRIEFING SCHEDULE ORDER of USCA as to 162 Notice of Appeal filed by EEOC and 169 Notice of Cross Appeal filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (SKM) (Entered: 06/21/2007)
177 MEMORANDUM OPINION AND ORDER re Posttrial Motions; EEOC's 151 MOTION Equitable Relief shall be construed as a motion for relief from judgment under Rule 60; if the matter is remanded to the Court from the 8th Circuit, Siouxland shall have the opportunity to submit its proposed calculation of prejudgment interest, and the Court will then award prejudgment interest on the jury verdicts in this case; EEOC's requests that the Court modify the awards for back wages, and order injunctive relief and other affirmative relief are denied; denying 166 MOTION to Strike, but Siouxland will be allowed to submit a response to the joint reply brief and supplementary exhibits within 10 days of the date of this Order and no further materials shall be submitted thereafter by any party without further order of this Court. Signed by Judge

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Lawrence L. Piersol on 8/10/07. (SKM) (Entered: 08/10/2007)
179 RESPONSE to 165 Reply to Motion Response to Intervenor Dooley's and Intervenor Gacke's Joint Reply Brief in Support of Motions for Attorney Fees filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/14/2007)
180 TRANSCRIPT of Jury Trial Proceedings (Vol I) held beginning April 3, 2007 (Attachments: # (1) Vol I of Jury Trial Transcript, continued; # (2) Vol. I of Jury Trial Transcript continued; # (3) Vol. I of Jury Trial Transcript continued; # (4) Vol I of Jury Trial Transcript, continued) (DJP) (Entered: 08/16/2007)
181 TRANSCRIPT of Jury Trial Proceedings (Vol II) held beginning April 3, 2007 (Attachments: # (1) Vol II of Jury Trial Transcript, continued; # (2) Vol. II of Jury Trial Transcript, continued; # (3) Vol II of Jury Trial Transcript, continued; # (4) Vol Ii of Jury Trial Transcript, continued; # (5) Vol II of Jury Trial Transcript, continued) (DJP) (Entered: 08/16/2007)
182 TRANSCRIPT of Jury Trial Proceedings (Vol III) beginning April 3, 2007 (Attachments: # (1) Vol III of Jury Trial Transcript, continued; # (2) Vol. III of Jury Trial Transcript, continued; # (3) Vol. III of Jury Trial Transcript, continued; # (4) Vol III of Jury Trial Transcript, continued) (DJP) (Entered: 08/16/2007)

PACER Service Center

Transaction Receipt

08/17/2007 13:18:21

PACER Login: hs0328

Client Code: eeoc

Description: Docket Report Search Criteria: 4:04-cv-04215-LLP

Billable Pages: 9

Cost:

0.72

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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED
c:s!;- DEC 3 0 lOO4

Richelle Dpoiey and, Angie Gad(·
Plaintiff,>,

CI04-_13J[,

vs.
SIOUXLAND ORAL MAXILLOFACIAL SURGERY ",SSOCIATES, L.L.P.
Defendant.

(:0'v1PLAINT (Violation ofTitl<: Vll of the Civil Rights
Act, Violati(:n of the Pregnancy Discrimination'\ct, Punitive Damages)

L INTRODUCTION

1.

This b an action for damages brought by individual's for Defendant's violations of Title VII ofthe

Civil Rights Act. violations ofthePrcgnat1cy Discrimination Act and for l'umtivc Damagcs. The Pregnancy
Discnminatioll J,.ct is an amcndment to Title vn ofthe Civil Rights Act of 1064. This is an action to

correct unla\v1ul cmployment practices on the basis of sex, and to provide appropriate relief to Richellc

Dooley ("Dooicy") and Angie Gackc ("Gacke"), who were adversely affectcd by such practices. As allcged

with greatcr particularity below, Plaintiffs alleges that Siouxland Oral Ma.xillofaeial Surgery Associates

CDefundanC) unlawfully terminated Doolcy's employment after she adVised !ler superiors that she was

pregnant. Furtn;;rmore, the Commission allegt-'S that the Defcndant unlawful!} rcttlscd to hirc Gacke after

she disclosed her prcgnancy during the intcr\lew process.

II. JURISDICTION

2.

JUTisd,,:tlon ofthis Court is invoked pursuant to 28 U.S.C § 45 L L'; I, 1337. 1343. 1343 and

1345. This aelion is authori7.ed and instituted pursuant to Section 706 (f)( I) and (3) <'fTitle VII ofthc
1'-,. CIvil Rights A" of 1964, as amcnded_ 42 US.c. § 2000c-5(f)(l) and (3){'Title VI and Scction 10101'

the Civil Righ,~ Act of 199 L 42 U.S.c. § 1<)81 A .

3.

The employment practices were committed within the jurisdiction of tile United States District

Court for the DIstrict of South Dakota.

III. PARTIES

4.

Plaintiff Richelle Dooley, is a natural person residing in South Dakota

5.

Plaintitf. Angie Gacke, is a natural person residing in South Dakota

6.

The Defendant is Siouxland Oral Maxillofacial Surgery Associat,s. LLP. Defendant is a

business located in Lincoln County , SOutJ1 Dakota.

7.

At aU relevant times, Detendant was a South Dakota corporation dOIng business in the State of

South Dakota. Ihe City of Sioux Falls, and has continuously had at k:ast tilk"'.iJ employees.

&.

At aU t devant times, Defendant has continuously \}C(,'t} all employer cll!,'Ugcd ill an indust'1

afii.,"(..'ting eom1ll0rce within the meaning of Sections 70 \(b), (g) and (11) of Tit!'; VII. 42 USC § 2000e

IV. FACTUAL ALLEGATIONS

9.

More thall thirty days prior to the institution of this lawsuit, Dooley fl.h::d a charge \\ith the

Commission alleging violations ofTitlc VB by Defendant.

I () More than thirty days prior to the institution of this lav\'suiL Gacke [hod a charge \\ith the Commission alkging violations of Title VII by Defendant.

II. All con,jitiollS precedent to thc institution of this lawsuit have been fulfilled.

12. Defendant interviewed Dooley for a reccption/sehcdulmg position on .11' about October 22, 2()O I.

13. On or about October 25, 20(JI, Dclt;ndant notified Dooley in writUlg !hat the position was filled and her resum" would be kept on file for future cmployment opportunitit,'S.

14. On or about December 211, 2001, Defendant contacted Dooley in writlllg advising her of another reception/scheduling position and offered her immediate hire.

15. Dook, contacted Shelley Hofer CUofer"). D,,>[cndanfs Admimstratl '<C Coordinato£' on or about December 29,2001

16. Hofer hired Dooley immediately and agreed to a January 2, 2()02, stan dak.

17. On January 3,. 2002, Dooley advisL'(j Hofur that she "as pregnant.

1K. On January 3. 2002, Kathlccn Fjcllstad, Defcndant's Business Manager. told Dooley tlult her cmplo}ment "as terminated.

19, Fjcllstad advised Dooley that Defendant would not have hired her Ifshc had previously disclosed her pregnancy

20 On or about March II, 2002. Gacke submitted to Defendant an appl;-:ation for a C.ontrol Stclilization and Post-Operative Recovery position

21. On March 12, 20()2, Defendant's Surgical Administrator Sherena K('st ("Kose) and Central Sterilization and Post Operative Recovery employees Sharon McConnell and Icnny DeVries interviewed Gacke for the p'>sition.

22. At the end of the IIltcrview, Kost provided Gacke with a copy of Deft:lIdant's benefit pacbgc.

..

23 Gackl advised KosI that she was t()Ur-nlonths pregnant and asked K,st if hcr prcgnanc) \\ould be a prc-<-')(isting condition. for the purpose ofreeeivlng benefits.
24 Kost "dvised Gacke that her pregnancy wa~ a problem lY.;cause matclllIty leaw would create more ",urk for the other emplovces.
25. Kost 1l111l1ediatcly grabbed the benefit package back from Gackc.
26. Later that day, Kost contacted Gackc by telephone and told her she dld not gd the .lob.
FIRST CLAIM FOR RELlEF (Title VI\- Wrongfu.1 Discharge Dooley)
27. Plaintoff repeats and reallegcs paragraphs 1-19.
28 The elket oflhc practices complained of in the paragraphs \-19. has been to deprive t\ls. Dooley
of equal employment opportunities and othel'\\'lse adversely affuct her status ,'S an employee because of lrel'
sex, female.
29. The unlawful employment practices complained of were intcntional.
30. The unlawful emp.loyment practices complaillCd of were done with lllalicc or with rcckkss illdif'furence te, the federally protected rights of Dooley.
3L Doob bas suf'furcd damages in loss of hack pay, and ha actual damages.
,'L?. Doole) has suffered damages in loss of front PilY,
SECOND CLAIM FOR RELIEF (Pregnancy Discrimination Act - Wrongful Discharg" Dooley)
34. Plainln( repeats and realleges paragraphs 1-19.
,I 35 The clkct of the practices complained of in the paragraphsl-lY, has been to depriw Ms Dooley
of equal emplo) ment opportunities and othcn'Visc adversely affcct her status s an employee because of her pregnant cOIK!llion.
36. 'The unlawful employment practiees complained of were mtentional
37. The unlawful employment practic<''S complained of were done with malice or with reckless indifference to Ihe federally protected rights of Dooley.
38. Dooley has suffered damages in loss of back pay, and her actual damages.
39. Doole\ has suffered damages in loss of front pay
THIRD CLAIM FOR RELIEF (Titlc VII Failurc to lure- (jackc)

40. Plaintiff repcaL~ and rcallegcs paragraphs 1-8 and 20-26

4 J. The clkct of the practiccs complained of have bcc.'11 to d(;privc \4". (,acke of equal ..:mpk):'luent opportunities l>xause of her sex, female.
42. Defendant refused to hire ("iacke bee~use of a condition of her sex. li.;;nale

43. The unlawful employment practices complained of abo.,; were and ale intentioilllL

44. The IInlawnll employment practices complained of abmie werc and at c done With malice or with reckless indift;;rencc to the fooerally protected rights ofGackc
45. Dook, has suffered damages in loss of back pay, and h(;r actual dawages.

46. Dool') has suffered damages in loss of front pay.

FOURTH CLAIM FOR RELIEF (Pregnancy Discrimination Act (jacke.

47.Plainhlfrepcats and reallcgcs paragraphs I-S and 20-26.

48. The cfkct of the practices complained of have been to deprive Ms. C3cke of equal employment opportunities Ix:eausc of her sex, Icmalc.

49. Defendant refused to hire Gacke !x,'eause of her pregnancy.

50. The unlawful employment practices complained of above werc and aiC intentionaL

51. The unlav.ful emplO}lllent practices complained of above ",ere and ale donc with malIce or with reckless indiff;;rcllee to the federally protected rights of Gacke.

52. Doolc~ has suffered damages in loss of back pay, and hcr actual dawages.

53. Dooln has suffered damages in loss offront pay.

FIFTH CLAIM FOR RELIEF (Punitive Damagcs - Dauk.')· and Gacke)

54 Plaintiffs reallege Paragraphs I-53 above.

55. The Dctbndants actions wcre willfid and done with mal,,;e or with reckless illdifferene.: to th.: tCderall, protected rights of Dooley and Gacke.

56. Defendants actions dt-'1lIand punitive damages in an amount to be pro\ en al tnal

WHEREFORE, the Plaintiffs pray for the following:

I.

Demands judgment against the detendant in the amount to be dctemlined by the jury tbr

--

>

back flay with prejudgment interest, front pay, benefits, statutorih authorized damages \\ith

prcjudgment intercst and compensatory damages;

2.

Injun';live relief requiring the institution ofpolicies and procedures to protect employees

from sexual harassment and pregnancy discrimination;

3.

For all of Plaintiffs costs, disbursenK'Il.ts, and attorneys' fees pursuant to federal law;

4. For punitive damages in an amount to be proven at trial; and

5.

For such other and further relief as the Court deems .iust and pL}per under the

circum stances

Dated at Sioux Falls, South Dakota, on December 29,2004
_Jo_h_nAR~~ka_s....±11/==....._.._._... ___.._.
Attorney- At-Law 115 S. Main Sioux Falls, SD 57104

Demand for Jury Trial

Plaintiffs respectfully demands trial by jury on all issues of fact.

~~/ n.~ ____"_~ _____ .___.. _~-:c:~.--.----.- . __~__________________
John. an Pekas Attorney-At-Law 115 S. Main Ave Sioux Falls, SD 57104

 
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CLOSED, MOTREF
U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:04-cv-04215-LLP

Equal Employment Opportunity Commission v. Siouxland Oral Maxillofacial Surgery Associates, L.L.P. Assigned to: U. S. District Judge Lawrence L. Piersol Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 12/28/2004 Date Terminated: 04/11/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Anjuli Kelotra E.E.O.C. 303 E. 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1378 Fax: (303) 866-1375 Email: anjuli.kelotra@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kim R. Rogers Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303) 866-1361 Fax: (303) 866-1375 Email: kim.rogers@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loretta F. Medina Equal Employment Opportunity Commission New Mexico District Office 505 Marquette NW Suite 900 Albuquerque, NM 87102 (505) 248-5230 Email: Loretta.medina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Intervenor Plaintiff Richelle Dooley
Intervenor Plaintiff Angie Gacke
V. Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P.

Nancy A. Weeks Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303) 866-1347 Fax: (303) 866-1375 Email: nancy.weeks@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Ryan Pekas 115 S. Main Ave. Sioux Falls, SD 57104 339-8983 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Ryan Pekas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael L. Luce Davenport, Evans, Hurwitz & Smith PO Box 1030 Sioux Falls, SD 57101-1030 336-2880 Fax: 335-3639 Email: mluce@dehs.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Brunick Simons Davenport, Evans, Hurwitz & Smith PO Box 1030 Sioux Falls, SD 57101-1030 336-2880 Fax: 335-3639 Email: ssimons@dehs.com ATTORNEY TO BE NOTICED

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Date Filed 12/28/2004 12/28/2004 12/28/2004 01/13/2005
01/13/2005 02/14/2005
02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005
03/17/2005 03/21/2005 03/23/2005 03/24/2005 03/31/2005 05/27/2005

#

Docket Text

1 COMPLAINT with Jury Demand. 2 Summons(es) issued - mailed, filed by Equal Employment Opportunity Commission.(SKM) (Entered: 12/28/2004)
2 CIVIL COVER SHEET (SKM) (Entered: 12/28/2004)
3 Summons Issued as to Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (SKM) (Entered: 12/28/2004)
4 MOTION to Intervene by Rachelle Dooley and Angie Gacke and upon intervention wish to dismiss their separate claim under CIV04-4516. (LMZ) (Entered: 01/20/2005)
5 MEMORANDUM in Support of 4 MOTION to Intervene . (LMZ) (Entered: 01/20/2005)
6 WAIVER OF SERVICE of Summons Returned Executed by Equal Employment Opportunity Commission. Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (JMM, ) (Entered: 02/14/2005)
7 ANSWER to Complaint by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.(Simons, Susan) (Entered: 02/28/2005)
8 DEMAND for Trial by Jury by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 02/28/2005)
9 RESPONSE to Motion re 4 MOTION to Intervene filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 02/28/2005)
10 MOTION to Sever by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 02/28/2005)
11 MEMORANDUM in Support re 10 MOTION to Sever filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1)(Simons, Susan) (Entered: 02/28/2005)
12 RESPONSE to Motion re 10 MOTION to Sever filed by Equal Employment Opportunity Commission. (Weeks, Nancy) (Entered: 03/17/2005)
13 RESPONSE to 10 Motion to Sever by Intervener plaintiffs Rachelle Dooley and Angie Gackie. (SKM) (Entered: 03/21/2005)
14 CORPORATE Disclosure Statement by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/23/2005)
15 REPLY to Motion Reponse re 10 MOTION to Sever filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/24/2005)
16 ORDER granting 4 Motion to Intervene. Signed by Judge Lawrence L. Piersol on 3/31/05. (DJP) (Entered: 04/01/2005)
18 MEMORANDUM OPINION AND ORDER denying 10 Motion to Sever . Signed by Judge Lawrence L. Piersol on 5/27/05. (SLL, ) (Entered: 05/27/2005)

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09/01/2005 09/02/2005 09/12/2005 09/23/2005
10/03/2005 01/17/2006 02/23/2006 03/31/2006 04/10/2006 04/10/2006 04/10/2006
04/12/2006
04/12/2006 04/12/2006

20 NOTICE of Appearance by Kim R. Rogers on behalf of Equal Employment Opportunity Commission (Rogers, Kim) (Entered: 09/01/2005)
21 ORDER For Form 35 Report and Scheduling Information. Signed by Judge Lawrence L. Piersol on 9/2/05. (LMZ) (Entered: 09/02/2005)
23 REPORT of Rule 26(f) Planning Meeting. (Rogers, Kim) (Entered: 09/12/2005)
24 SCHEDULING ORDER: Discovery due by 5/1/2006; Motions due by 6/2/2006; Motion Hearing set for 9/18/2006 01:30 PM before Chief Judge Lawrence L. Piersol; Pretrial Conference set for 9/18/2006 01:30 PM before Chief Judge Lawrence L. Piersol; Jury Trial set for 10/17/2006 09:30 AM before Chief Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 9/23/05. (SKM) (Entered: 09/23/2005)
26 RULE 26 Disclosures by Richelle Dooley, Angie Gacke. (SKM) (Entered: 10/04/2005)
27 RULE 26 Expert Preliminary Disclosure by Richelle Dooley, Angie Gacke. (Attachments: # 1 Richard C. Flugge Resume)(DJP) (Entered: 01/17/2006)
Settlement Conference held on 2/23/2006 before Judge John E. Simko(CG) (Entered: 03/07/2006)
28 Joint MOTION to Extend Deadlines Extension of Scheduling Order by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/31/2006)
29 NOTICE to Take Deposition of Richelle Dooley (Simons, Susan) (Entered: 04/10/2006)
30 NOTICE to Take Deposition of Angie Gacke (Simons, Susan) (Entered: 04/10/2006)
31 AMENDED RULE 16 SCHEDULING ORDER: Discovery due by 7/24/2006; Motions due by 8/25/2006; Motion Hearing set for 10/30/2006 09:00 AM before U. S. District Judge Lawrence L. Piersol; Pretrial Conference set for 10/30/2006 09:00 AM before U. S. District Judge Lawrence L. Piersol; Jury Trial set for 12/5/2006 09:30 AM before U. S. District Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 4/10/06. (SKM) (Entered: 04/11/2006)
33 First MOTION to Compel Discovery by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit: Charge of Discrimination; # 2 Exhibit: Letter from Carol Garry to Kathleen Fjellestad dated 10/30/02; # 3 Exhibit: Angie Gacke Statement of July 1, 2002; # 4 Exhibit: Charge of Discrimination; # 5 Exhibit: Sherena Kost Letter to Human Relastions dated 5/8/02; # 6 Exhibit: Cardenas vs. Prudential, US District Court, District of Minnesota)(Rogers, Kim) (Entered: 04/12/2006)
34 MOTION to Seal Document Exhibit F by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 04/12/2006)
35 Exhibit F to doc 33. (Rogers, Kim) Modified on 4/13/2006-unsealed document pursuant to order 36 (SKM). (Entered: 04/12/2006)

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04/12/2006 04/18/2006 04/19/2006
05/03/2006 05/09/2006
05/31/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 05/31/2006 07/05/2006 07/05/2006 07/05/2006 07/06/2006 08/24/2006

36 ORDER denying 34 Motion to Seal Document. Signed by Judge John E. Simko on 4/12/06. (SKM) (Entered: 04/13/2006)
38 ORDER REFERRING MOTION: 33 First MOTION to Compel Discovery filed by Equal Employment Opportunity Commission, Signed by Judge Lawrence L. Piersol on 4/18/06. (SLL, ) (Entered: 04/19/2006)
40 MEMORANDUM in Opposition re 33 First MOTION to Compel Discovery filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1 Exhibit A: Response of Dooley to Sioux Falls Human Relations Commission# 2 Exhibit B: Siouxland Oral notes# 3 Exhibit C: Siouxland Oral Policy Manual# 4 Exhibit D: Siouxland Oral employee leave records# 5 Exhibit E: SiouxlandOral EEO Training)(Simons, Susan) (Entered: 04/19/2006)
41 REPLY to 40 Memorandum in Opposition to Motion,, 33 Motion to Compel, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A: Excerpt from Leave Policy)(Rogers, Kim) (Entered: 05/03/2006)
42 ORDER granting 33 Motion to Compel production of requested documents in requests for Production 7 and 8; deferring request for production of documents showing defendant's net worth. Signed by Judge John E. Simko on 5/9/06. (SLL, ) (Entered: 05/09/2006)
44 Amended NOTICE to Take Deposition of Richelle Dooley (Simons, Susan) (Entered: 05/31/2006)
45 Amended NOTICE to Take Deposition of Angie Gacke (Simons, Susan) (Entered: 05/31/2006)
46 NOTICE to Take Deposition of Kathleen Fjellstad (Rogers, Kim) (Entered: 05/31/2006)
47 NOTICE to Take Deposition of Jenny DeVries (Rogers, Kim) (Entered: 05/31/2006)
48 NOTICE to Take Deposition of Rebecca Akerson (Rogers, Kim) (Entered: 05/31/2006)
49 NOTICE to Take Deposition of Shelly Hofer (Rogers, Kim) (Entered: 05/31/2006)
50 NOTICE to Take Deposition of Sherena Kost (Rogers, Kim) (Entered: 07/05/2006)
51 NOTICE to Take Deposition of Dr. H.A. Akerson (Rogers, Kim) (Entered: 07/05/2006)
52 NOTICE to Take Deposition of Dr. Bernard Balaban (Rogers, Kim) (Entered: 07/05/2006)
53 NOTICE to Take Deposition of Corporation Pursuant to Fed. R. Civ. P. 30(b)(6) (Rogers, Kim) (Entered: 07/06/2006)
54 MOTION for Summary Judgment by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)

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08/24/2006 08/24/2006 08/24/2006
08/24/2006 08/24/2006 08/24/2006 08/24/2006 08/25/2006 08/25/2006
08/30/2006 09/07/2006 09/08/2006 09/08/2006

55 MEMORANDUM in Support re 54 MOTION for Summary Judgment filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
56 STATEMENT OF Undisputed MATERIAL FACTS re 54 Motion for Summary Judgment, 55 Memorandum in Support of Motion by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
57 APPENDIX by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 56 Statement of Material Facts. (Attachments: # 1 H.A. Akerson Deposition# 2 Rebecca Akerson Deposition# 3 B. Balaban Deposition# 4 Richelle Dooley Deposition# 5 Kathleen Fjellestad Deposition# 6 Angie Gacke Deposition# (7) Jennifer Hanson# (8) Shelley Hofer Deposition# 9 Sherena Kost# (10) Exhibits from Depositions# (11) EEOC Responses to Defendant's Request for Production# 12 Exhibit from Defendant's Supp Answers to EEOC's Discovery)(Simons, Susan) (Entered: 08/24/2006)
58 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
59 MOTION for Separate Trials by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
60 MEMORANDUM in Support re 59 MOTION for Separate Trials filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/24/2006)
61 DESIGNATION of Expert Witness(es) by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1 Jim Carroll's Report# 2 Curriculum Vitae of Jim Carroll# 3 List of Cases)(Simons, Susan) (Entered: 08/24/2006)
62 MOTION to Seal Document 57 Appendix,, Tabs 7, 8, 10 and 11 by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/25/2006)
63 APPENDIX by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 57 Appendix,, Redacted, Tabs 7, 8, 10 and 11. (Attachments: # 1 Jennifer Hanson# 2 Shelley Hofer# 3 Exhibits from Depositions# 4 Plaintiff EEOC's Responses to Defendant's Request for Production)(Simons, Susan) (Entered: 08/25/2006)
64 Amended MOTION to Seal Document 63 Appendix,, 62 MOTION to Seal Document 57 Appendix,, Tabs 7, 8, 10 and 11 by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 08/30/2006)
65 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 09/07/2006)
66 ORDER granting 64 Motion to Seal Document 57 Appendix, Tabs 7, 8, 10 and 11,. Signed by Judge Lawrence L. Piersol on 9/8/06. (SLL, ) (Entered: 09/08/2006)
SEALING Tabs 7, 8, 10, and 11 of Doc. 57, pursuant to Order of Court dated 9/8/06 (SLL, ) (Entered: 09/08/2006)

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09/12/2006 09/12/2006 09/13/2006 09/13/2006
09/13/2006 09/13/2006 09/13/2006 09/13/2006 09/15/2006
09/15/2006 09/20/2006 09/20/2006

NOTICE of Filing Error: Motion to Strike65 filed by Equal Employment Opportunity Commission, FILED IN ERROR (Rogers, Kim) (Entered: 09/12/2006)
68 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 09/12/2006)
69 MEMORANDUM in Opposition re 68 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)
70 AFFIDAVIT of Susan Brunick Simons re 69 Memorandum in Opposition to Motion Objection and Joint Motion to Strike Defendant's Expert James Carroll. (Attachments: # 1 September 6, 2005, correspondence# 2 September 12, 2005, e-mail# 3 January 17, 2006 correspondence# 4 January 23, 2006 correspondence# 5 March 15, 2006 correspondence# 6 April 11, 2006 correspondence# 7 June 19, 2006 correspondence# 8 June 23, 2006 correspondence# 9 Defendant's Expert Disclosure# 10 September 6, 2006 correspondence# 11 Itemization of fees)(Simons, Susan) (Entered: 09/13/2006)
71 MOTION for Sanctions by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)
72 MEMORANDUM in Support re 71 MOTION for Sanctions filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)
73 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 09/13/2006)
74 Joint MOTION to Extend Deadlines for Briefing Schedule by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 09/13/2006)
75 SECOND AMENDED RULE 16 SCHEDULING ORDER: Motion Hearing set for 10/30/2006 09:00 AM before U. S. District Judge Lawrence L. Piersol; Pretrial Conference set for 10/30/2006 09:00 AM before U. S. District Judge Lawrence L. Piersol; Jury Trial set for 12/5/2006 09:30 AM before U. S. District Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 9/15/06. (SKM) (Entered: 09/15/2006)
77 ORDER REFERRING MOTION: 71 MOTION for Sanctions filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P. referred to Mag. John Simko for a report and recommendation. Signed by Judge Lawrence L. Piersol on 9/15/06. (SKM) (Entered: 09/18/2006)
79 MEMORANDUM in Opposition re 54 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Weeks, Nancy) (Entered: 09/20/2006)
80 AFFIDAVIT in Opposition re 54 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Ackerson depo# 2 Balaban depo# 3 Dooley depo# 4 Fjellestad depo# 5 Gacke depo# 6 Hanson depo# 7 Hofer depo# 8 Kost depo# 9 Exhibit 1# 10 Exhibit 2# 11 Exhibit 3# 12 Exhibit 6# 13 Exhibit 7# 14 Exhibit 8# 15 Exhibit 9# 16 Exhibit 11# 17 Exhibit

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13# 18 Exhibit 14# 19 Exhibit 16# 20 Exhibit 19# 21 Exhibit 21# 22 Exhibit 23# 23 Exhibit 27# 24 Exhibit 28# 25 Exhibit 29# 26 Exhibit 30# 27 Exhibit 35# 28 Exhibit 40)(Weeks, Nancy) (Entered: 09/20/2006)
81 RESPONSE to Motion re 54 MOTION for Summary Judgment Plaintiffs' Disputed Facts filed by Equal Employment Opportunity Commission. (Weeks, Nancy) (Entered: 09/20/2006)
82 MEMORANDUM in Opposition re 59 MOTION for Separate Trials filed by Equal Employment Opportunity Commission. (Attachments: # 1 King v. West)(Weeks, Nancy) (Entered: 09/20/2006)
83 RESPONSE to Motion re 71 MOTION for Sanctions filed by Richelle Dooley, Angie Gacke. (SKM) (Entered: 10/02/2006)
84 AFFIDAVIT of Richard C. Flugge re 83 Response to Motion. (SKM) (Entered: 10/02/2006)
85 CERTIFICATE OF SERVICE by Richelle Dooley, Angie Gacke (SKM) (Entered: 10/02/2006)
86 REPLY to 54 Motion for Summary Judgment Brief in Support of filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
87 RESPONSE to 81 Response to Motion EEOC/Intervenors' Disputed Facts filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
88 AFFIDAVIT of Sherena Kost re 87 Response Defendant's Response to EEOC/Intervenors' Disputed Facts. (Simons, Susan) (Entered: 10/04/2006)
89 REPLY to 59 Motion for Miscellaneous Relief in Support of Defendant's Motion for Separate Trials filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
90 REPLY to 71 Motion for Sanctions in Support of Defendant's Motion for Sanctions filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
91 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/04/2006)
92 AFFIDAVIT of Susan Brunick Simons re 71 MOTION for Sanctions Supplemental. (Attachments: # 1 Statement of Costs to prepare Reply re Motion for Sanctions)(Simons, Susan) (Entered: 10/09/2006)
93 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 10/09/2006)
94 MINUTES - Motion Hearing held on 10/30/2006 re 68 Joint MOTION to Strike 61 Designation of Expert Witness James Carroll filed by Equal Employment Opportunity Commission,, 59 MOTION for Separate Trials filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.,, 54 MOTION for Summary Judgment filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.,, 71 MOTION for Sanctions filed by Siouxland Oral Maxillofacial Surgery

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11/22/2006 12/15/2006 01/22/2007 02/02/2007 02/12/2007
02/13/2007
03/09/2007
03/19/2007 03/20/2007 03/20/2007 03/20/2007

Associates, L.L.P.,, Final Pretrial Conference held on 10/30/2006 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM, ) Modified on 11/22/2006 (JMM, ). (hearing was held on 10/30/06, minutes mistakenly state 10/29/06) (Entered: 10/30/2006)
95 THIRD AMENDED RULE 16 SCHEDULING ORDER: Jury Trial set for 3/27/2007 09:30 AM before U. S. District Judge Lawrence L. Piersol. Signed by Judge Lawrence L. Piersol on 11/22/06. (SKM) (Entered: 11/24/2006)
97 RULE 26 Disclosures by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Rebuttal Expert Report)(Rogers, Kim) (Entered: 12/15/2006)
98 NOTICE of Appearance by Loretta F. Medina on behalf of Equal Employment Opportunity Commission (LMZ) (Entered: 01/22/2007)
99 NOTICE to Take Deposition of James Carroll by Richelle Dooley, Angie Gacke.(SKM) (Entered: 02/02/2007)
100 STATUS REPORT Notice of Compliance with Court Order by Equal Employment Opportunity Commission. (Attachments: # 1 Letter dated 2/2/07 Attachment # 2 Letter dated 2/7/07 Attachment #(3) Regional Attorneys' Manual Part 3 "Conducting Litigation")(Rogers, Kim) Descriptive text added on 2/13/2007 (Lovro, Sharon). (Entered: 02/12/2007)
101 REPLY to 100 Status Report, to Plaintiff EEOC's Notice of Compliance with Court Order and Defendant's Notice of Compliance with Court Order filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1 January 11, 2007, Telephone Message# 2 January 19, 2007, letter from Attorney Pekas# 3 January 25, 2007, telephone message)(Simons, Susan) (Entered: 02/13/2007)
102 MEMORANDUM OPINION ORDER RE: SUMMARY JUDGMENT AND OTHER MOTIONS granting 54 motion for summary judgment with regard to Plaintiffs' pattern and practice discrimination claims and denying 54 Motion for Summary Judgment with regard to disparate treatment claims of the EEOC, Dooley, and Gacke; denying 59 Motion for separate trials; denying 68 Motion to Strike Designation of Expert Witness James Carroll; denying 71 Motion for Sanctions. Signed by Judge Lawrence L. Piersol on 3/9/07. (SLL) (Entered: 03/12/2007)
104 ORDER FOR TRIAL: Jury Trial set for 4/3/2007 09:30 AM before U. S. District Judge Lawrence L. Piersol Signed by Judge Lawrence L. Piersol on 3/19/07. (SLL) (Entered: 03/20/2007)
106 Witness List by Equal Employment Opportunity Commission.(Rogers, Kim) (Entered: 03/20/2007)
107 Exhibit List by Equal Employment Opportunity Commission.. (Attachments: # 1 Exhibit List)(Rogers, Kim) (Entered: 03/20/2007)
108 MOTION Release of Juror Questionnaires by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/20/2007)

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03/20/2007 03/20/2007 03/20/2007 03/20/2007 03/20/2007 03/20/2007
03/20/2007
03/20/2007 03/22/2007 03/26/2007 03/27/2007 03/27/2007 03/27/2007

109 Witness List by Siouxland Oral Maxillofacial Surgery Associates, L.L.P..(Simons, Susan) (Entered: 03/20/2007)
110 Exhibit List by Siouxland Oral Maxillofacial Surgery Associates, L.L.P...(Simons, Susan) (Entered: 03/20/2007)
111 MOTION Limit Examination Under Rule 611 by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/20/2007)
112 MEMORANDUM in Support re 111 MOTION Limit Examination Under Rule 611 filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/20/2007)
113 Proposed Jury Instructions by Siouxland Oral Maxillofacial Surgery Associates, L.L.P..(Simons, Susan) (Entered: 03/20/2007)
114 MOTION IN LIMINE: Part 1: to exclude evidence relating to settlement discussions; Part 2: to exclude expert opinions that have not been previously disclosed; Part 3: to prohibit Plaintiffs' counsel from making a golden rule argument; Part 4: to exclude evidence regarding front pay; Part 5: to exclude the Administrative Agency findings; Part 6: to exclude evidence of policies adopted and personnel decisions after 2002; Part 7: to exclude evidence of Kost's performance appraisal; Part 8: to exclude evidence or argument that Siouxland engaged in a pattern and practice of discrimination Part 9: to exclude evidence that Siouxland did not rehire Dooley Part 10: to exclude evidence of and references to ADA and FMLA by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 03/20/2007)
115 MEMORANDUM in Support re 114 MOTION IN LIMINE: Part 1: to exclude evidence relating to settlement discussions; Part 2: to exclude expert opinions that have not been previously disclosed; Part 3: to prohibit Plaintiffs' counsel from making a golden rule argument; Part 4: to e filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Attachments: # 1 New Hire Document - H. Kietzmann# 2 New Hire Document - D. Fogelson)(Simons, Susan) (Entered: 03/20/2007)
116 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Jury Instructions)(Rogers, Kim) (Entered: 03/20/2007)
117 ORDER granting 108 Motion for release of juror questionnaires. Signed by Judge Lawrence L. Piersol on 3/22/07. (JMM) (Entered: 03/23/2007)
118 Amended Witness List by Equal Employment Opportunity Commission.(Rogers, Kim) Modified on 3/30/2007 (Meisenheimer, Jackie). (Entered: 03/26/2007)
119 OBJECTIONS by Plaintiff Equal Employment Opportunity Commission re 113 Proposed Jury Instructions. (Rogers, Kim) (Entered: 03/27/2007)
120 RESPONSE to Motion re 111 MOTION Limit Examination Under Rule 611 filed by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 03/27/2007)
121 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 116 Proposed Jury Instructions. (Attachments: # 1 Defendant's

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03/27/2007 03/27/2007
04/02/2007
04/03/2007 04/03/2007 04/03/2007 04/04/2007 04/05/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007

Undisputed Material Facts Not Disputed by EEOC and Intervenors# 2 South Dakota Pattern Jury Instruction 2-12)(Simons, Susan) (Entered: 03/27/2007)
122 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 107 Exhibit List. (Simons, Susan) (Entered: 03/27/2007)
123 RESPONSE to Motion re 114 MOTION IN LIMINE: Part 1: to exclude evidence relating to settlement discussions; Part 2: to exclude expert opinions that have not been previously disclosed; Part 3: to prohibit Plaintiffs' counsel from making a golden rule argument; Part 4: to e filed by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 03/27/2007)
125 MEMORANDUM OPINION AND ORDER denying 111 Motion to Limit Examination under Fed.R.Evid.611(a). Signed by Judge Lawrence L. Piersol on 4/2/2007. (LMZ) (Entered: 04/02/2007)
Voir Dire held on 4/3/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM) (Entered: 04/06/2007)
Jury Trial began on 4/3/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR #1) (JMM) (Entered: 04/06/2007)
128 Jury List.(JMM) (Entered: 04/06/2007)
Jury Trial continued on 4/4/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR#1) (JMM) (Entered: 04/09/2007)
Jury Trial continued on 4/5/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM) (Entered: 04/09/2007)
127 Proposed Jury Instructions by Siouxland Oral Maxillofacial Surgery Associates, L.L.P..(Simons, Susan) (Entered: 04/06/2007)
129 Defendant's Additional Proposed Jury Instruction(JMM) (Entered: 04/09/2007)
130 MINUTES - Jury Trial completed on 4/6/2007 before Judge Lawrence L. Piersol (Court Reporter Jerry May/FTR) (JMM) (Entered: 04/09/2007)
131 VERDICT in favor of plaintiff Angie Gacke and against Siouxland Oral Maxillofacial Surgery in the amount of $5,757.00.(JMM) (Entered: 04/09/2007)
132 VERDICT in favor of plaintiff Richelle Dooley and against Siouxland Oral Maillofacial Surgery in the amount of $15,341.00.(JMM) (Entered: 04/09/2007)
133 Preliminary Jury Instructions.(JMM) (Entered: 04/09/2007)
134 Jury Instructions read to the jury by the Court(JMM) (Entered: 04/09/2007)
135 Jury Instructions with cites(JMM) (Entered: 04/09/2007)
148 Exhibit List by Equal Employment Opportunity Commission, Richelle Dooley, Angie Gacke.(JMM) (Entered: 05/10/2007)
149 Exhibit List by Siouxland Oral Maxillofacial Surgery Associates, L.L.P...(JMM) (Entered: 05/10/2007)

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04/10/2007
04/11/2007
04/13/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/10/2007 05/10/2007
05/23/2007

136 JUDGMENT in favor of Equal Employment Opportunity Commission, Richelle Dooley against Siouxland Oral Maxillofacial Surgery Associates, L.L.P. in the amount of $15,341.00. Signed by Judge Lawrence L. Piersol on 4/10/07. (JMM) (Entered: 04/11/2007)
137 JUDGMENT in favor of Equal Employment Opportunity Commission, Angie Gacke against Siouxland Oral Maxillofacial Surgery Associates, L.L.P. in the amount of $5,757.00. Signed by Judge Lawrence L. Piersol on 4/10/07. (JMM) (Entered: 04/11/2007)
MAILING both final Judgments to John Pekas (JMM) (Entered: 04/13/2007)
138 MOTION for Attorney Fees and Costs by Angie Gacke. (SKM) (Entered: 05/09/2007)
139 MEMORANDUM in Support re 138 MOTION for Attorney Fees and Costs filed by Angie Gacke. (SKM) (Entered: 05/09/2007)
140 AFFIDAVIT of John R. Pekas re 138 MOTION for Attorney Fees and Costs. (Attachments: # 1 Itemized Billing Statement)(SKM) (Entered: 05/09/2007)
141 CERTIFICATE OF SERVICE by Angie Gacke re 140 Affidavit, 138 MOTION for Attorney Fees, 139 Memorandum in Support of Motion (SKM) (Entered: 05/09/2007)
142 MOTION for Attorney Fees and Costs by Richelle Dooley. (SKM) (Entered: 05/09/2007)
143 MEMORANDUM in Support re 142 MOTION for Attorney Fees and Costs filed by Richelle Dooley. (SKM) (Entered: 05/09/2007)
144 AFFIDAVIT of John R. Pekas re 142 MOTION for Attorney Fees and Costs. (Attachments: # 1 Itemized Billing Statement)(SKM) (Entered: 05/09/2007)
145 CERTIFICATE OF SERVICE by Richelle Dooley re 144 Affidavit, 142 MOTION for Attorney Fees, 143 Memorandum in Support of Motion (SKM) (Entered: 05/09/2007)
146 BILL OF COSTS by Richelle Dooley, Angie Gacke. (SKM) (Entered: 05/09/2007)
147 AFFIDAVIT of John R. Pekas in support of 146 Bill of Costs. (SKM) (Entered: 05/09/2007)
150 BILL OF COSTS by Equal Employment Opportunity Commission. (Rogers, Kim) (Entered: 05/10/2007)
151 MOTION Equitable Relief re137 Judgment, 136 Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Rogers, Kim) (Entered: 05/10/2007)
152 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 150 Bill of Costs, 146 Bill of Costs. (Simons, Susan) (Entered: 05/23/2007)

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05/23/2007 05/23/2007
05/23/2007 05/29/2007
05/29/2007 05/29/2007 05/29/2007
05/29/2007 05/30/2007 06/07/2007 06/08/2007 06/08/2007

153 AFFIDAVIT of Sharon McConnell re 152 Objections to EEOC's and Intervenors' Bill of Costs. (Attachments: # 1 Subpoena to Sharon McConnell)(Simons, Susan) (Entered: 05/23/2007)
154 AFFIDAVIT of Susan Brunick Simons re 152 Objections to EEOC's and Intervenors' Bill of Costs. (Attachments: # 1 Taxation of Costs June 1996# 2 Admission of Service# 3 March 26, 2007 Letter from John Pekas# 4 Subpoenas to Gacke, Dooley and R. Akerson# 5 Relevant portions of Defendant's Answers to EEOC's Discovery)(Simons, Susan) (Entered: 05/23/2007)
155 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 05/23/2007)
156 OBJECTIONS by Defendant Siouxland Oral Maxillofacial Surgery Associates, L.L.P. re 142 MOTION for Attorney Fees, 138 MOTION for Attorney Fees of Dooley and Gacke. (Attachments: # 1 Time Comparison Chart# 2 Relevant e-mails# 3 Deposition cover pages# 4 Contact with EEOC/Plaintiff Chart# 5 Contact with Clients Chart)(Simons, Susan) (Entered: 05/29/2007)
157 AFFIDAVIT of Jill Connelly re 156 Objections, to Attorney Fees. (Simons, Susan) (Entered: 05/29/2007)
158 AFFIDAVIT of Michael L. Luce re 156 Objections, to Attorney Fees. (Attachments: # 1 Relevant time records)(Simons, Susan) (Entered: 05/29/2007)
159 AFFIDAVIT of Susan Brunick Simons re 156 Objections, to Attorney Fees. (Attachments: # 1 Relevant time records# 2 Discovery document# 3 Relevant e-mails# 4 Notices of Depositions# 5 Relevant documents from Sioux Falls Human Relations Commission)(Simons, Susan) (Entered: 05/29/2007)
160 CERTIFICATE of Service by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 05/29/2007)
161 MEMORANDUM in Opposition re 151 MOTION Equitable Relief re137 Judgment, 136 Judgment filed by Siouxland Oral Maxillofacial Surgery Associates, L.L.P.. (Simons, Susan) (Entered: 05/30/2007)
162 NOTICE by Equal Employment Opportunity Commission of Appeal (Attachments: # 1 Form A)(Weeks, Nancy) (Entered: 06/07/2007)
163 NOTICE to Counsel re. notice of appeal (SLL) (Entered: 06/08/2007)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Fri Jun 8 10:32:56 CDT 2007 (Lovro, Sharon) (Entered: 06/08/2007)

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