I:fCEIVED

2000
ROBERT H. SHEM,WELL, CLERK WESTERN DISTRICT OF LOUISIANA
SHREVEPORT, LOUISIANA

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

U.S. DIST~ICT COURT WESTERN DISTRICT OF LOUISI~N~
FILED
SEP 2 9 2000
ROBER’F/I~IA $~MWELL, CLERK BY- ,,~V
DFPU T~-

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
RITE-AID CORPORATION, Defendant.

CVO0- 2238 CIVIL ACTION NO.
JUDGE JAMES
MAGISTRATE JUDGE KIRK
JURY TRIAL AND DEMAND

COMPLAINT
This action is brought under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices and to provide appropriate relief to Johnny L. Williams ("Williams") who was adversely affected by such practices. The Plaintiff Equal Employment Opportunity Commission ("EEOC" or "Commission") alleges that Williams, a female, was subjected to discrimination by defendant, Rite Aid Corporation. ("Rite-Aid" or "Defendant" or "Employer"), when it failed to recall her to work from an alleged lay-off because it preferred a male for the position in violation of Title VII. The specifics are alleged in paragraph 8 below.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 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 pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A.
2. The employment practices alleged to be unlawful were at all material times committed within the jurisdiction of the United States District Court for the Western District of Louisiana.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times and continuously to this date, the Defendant has been a foreign corporation doing business in the State of Louisiana and had at least 15 employees. 5. At all relevant times and continuously to this date, Defendant has been an employer engaged in an industry affecting commerce under Sections 70 l(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e (b), (g) and (h). 6. At all relevant times, all material facts occurred within the jurisdiction of this Court.
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit Williams filed a charge with the Commission alleging violations of Title VII by the Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
2

8. On or about October 10, 1998, Charging Party, Johnny L. Williams, was laid-off from her cashier position with the Defendant because the store location in which she worked was closing and the store was relocating. The Defendant informed Williams that she would be called back to work once the new store opened or whenever sales increased. In fact, the store manager informed Williams that the employees who were laid off would be the first choice for positions at the new store. However, although other employees were offered positions with the new store when it opened, the Charging Party was not called back to work even though she went into the store and informed the store manager that she was interested in the open Liquor Department Clerk position. The manager felt he needed a male to meet the physical demands of the liquor department and as a result the manager hired a male applicant instead of recalling the Charging Party to the position. Charging Party was never given the chance to even demonstrate that she could perform the duties of the liquor department clerk. Rather, because she was a female, she was denied the position based on the belief that only a male could perform the duties in the liquor department in violation of Title VII.
9. The practices complained of in paragraph 8 above constitute sex discrimination in violation of Title VII. Defendant is liable under Title VII for the above-described practices of its store manager.
10. The effect of the practices complained of in paragraph 8 above has been to deprive Williams of equal employment opportunities, alter her conditions of employment, and to adversely affect her status as an employee because of her sex, in violation of Title VII.
11. The unlawful employment practices complained of in paragraph 8 above were intentional.

12. The unlawful employment practices complained of in paragraph 8 above were done and/or allowed to be done by Defendant with malice or reckless indifference to the federally protected rights of Williams in violation of the federal anti-discrimination laws.
13. The unlawful employment practices complained of in paragraph 8 above caused Williams to lose wages, suffer emotional distress, and the denial of her return to work caused her pecuniary and non-pecuniary losses to be proved at trial.
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 engaging in discriminatory retaliation in its discipline and discharge practices and any other employment practices which discriminate on the basis of sex in violation of Title VII. B. Order Defendant Employer to institute and carry out policies, practices, and programs which are designed to prevent sex discrimination in general and sex discrimination in hiring in particular, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Johnny L. Williams by other affirmative relief necessary to eradicate the effects of its unlawful employment practices. D. Order Defendant Employer to make whole Johnny L. Williams by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 8 above, in amounts to be determined at trial.

E. Order Defendant Employer to make whole Johnny L. Williams by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph 8 above, including, but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of life, reduction in her standard of living, lowered self esteem and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Johnny L. Williams punitive damages for its malicious and reckless conduct, as described in paragraph 8 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
C. GREGORY STEWART General Counsel No Bar Roll Number Assigned
Regional Attorney Bar Roll No. 15200000
Supervisory Trial Attorney Bar Roll No. 1286

AGENT FOR SERVICE OF PROCESS:

Bar Roll Number 24335 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New Orleans District Office 701 Loyola Avenue, Suite 600 New Orleans, Louisiana 70113 Telephone: (504) 589-6922
(504) 589-2701 Facsimile: (504) 589-2805

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

FILED
U$OC, WI~STERN DISTRICT OF LA ROBERT H. SHEMWELL,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
Vo
K & B LOUISIANA CORPORATION d/b/a RITE AID,
Defendant.

CIVIL ACTION NO.
cv v
MAGISTRATE "M"
JURY TRIAL AND DEMAND

AMENDED COMPLAINT
NOW INTO COURT, through undersigned counsel, comes Plaintiff, the United States Equal Employment Opportunity Commission, and files its Amended Complaint. This Amended Complaint is filed to correct the name of the Defendant, K & B Louisiana Corporation d/b/a Rite Aid ("K & B"), which was erroneously identified as Rite-Aid Corporation.

NATURE OF THE ACTION This action is brought under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices and to provide appropriate relief to Johnny L. Williams ("Williams") who was adversely affected by such practices. The Plaintiff Equal Employment Opportunity Commission ("EEOC" or "Commission") alleges that Williams, a female, was subjected to discrimination by defendant, K

& B Louisiana Corporation d/b/a Rite Aid ("K & B" or "Defendant" or "Employer"), when it failed to recall her to work from an alleged lay off because it preferred a male for the position in violation of Title VII. The specifics are alleged in paragraph 8 below.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(0(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 pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A. 2. The employment practices alleged to be unlawful were at all material times committed within the jurisdiction of the United States District Court for the Western District of Louisiana.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(0(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times and continuously to this date, the Defendant has been a foreign corporation doing business in the State of Louisiana and had at least 15 employees. 5. At all relevant times and continuously to this date, Defendant has been an employer engaged in an industry affecting commerce under Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e (b), (g) and (h).
2

Court.

At all relevant times, all material facts occurred within the jurisdiction of this

STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit Williams filed a charge with the Commission alleging violations of Title VII by the Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. On or about October 10, 1998, Charging Party, Johnny L. Williams, was laid-off from her cashier position with the Defendant because the store location in which she worked was closing and the store was relocating. The Defendant informed Williams that she would be called back to work once the new store opened or whenever sales increased. In fact, the store manager informed Williams that the employees who were laid off would be the first choice for positions at the new store. However, although other employees were offered positions with the new store when it opened, the Charging Party was not called back to work even though she went into the store and informed the store manager that she was interested in the open Liquor Department Clerk position. The manager felt he needed a male to meet the physical demands of the liquor department and as a result the manager hired a male applicant instead of recalling the Charging Party to the position. Charging Party was never given the chance to even demonstrate that she could perform the duties of the liquor department clerk. Rather, because she was a female, she was denied the position based on the belief that only a male could perform the duties in the liquor department in violation of Title VII.
9. The practices complained of in paragraph 8 above constitute sex discrimination in
3

violation of Title VII. Defendant is liable under Title VII for the above-described practices of its store manager.
10. The effect of the practices complained of in paragraph 8 above has been to deprive Williams of equal employment opportunities, alter her conditions of employment, and to adversely affect her status as an employee because of her sex, in vit~lation of Title VII.
11. The unlawful employment practices complained of in paragraph 8 above were intentional.
12. The unlawf~ employment practices complained of in paragraph 8 above were done and/or allowed to be done by Defendant with malice or reckless indifference to the federally protected rights of Williams in violation of the federal anti-di~cri~in~tipn !~ws..
13. The unlawful employment practices complained of in paragraph 8 above caused Williams to lose wages, suffer emotional distress, and the denial of her return to work caused her pecuniary and non-pecuniary losses to be proved at trial.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining DefendantEmployer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in discriminatory retaliation in its discipline and discharge practices and any other employment practices which discriminate on the basis of sex in violation of Title VII. B. Order Defendant Employer to institute and carry out policies, practices, and programs which are designed to prevent sex discrimination in general and sex discrimination in
4

hiring in particular, and which eradicate the effects of its past and present unlawful employment

practices.

C. Order Defendant Employer to make whole Johnny L. Williams by other

affirmative relief necessary to eradicate the effects of its unlawful employment practices.

D. Order Defendant Employer to make whole Johnny L. Williams by providing

compensation for past and future pecuniary losses resulting from the unlawful employment

practices described in paragraph 8 above, in amounts to be determined at trial.

E. Order Defendant Employer to make whole Johnny L. Williams by providing

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

complained of in paragraph 8 above, including, but not limited to, emotional pain, suffering,

inconvenience, loss of enjoyment of life, reduction in her standard of living, lowered self esteem

and humiliation, in amounts to be determined at trial.

F. Order Defendant Employer to pay Johnny L. Williams punitive damages for its

malicious and reckless conduct, as described in paragraph 8 above, in amounts to be determined

at trial.

Go

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

interest.

H. Award the Commission its costs of this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.

5

C. GREGORY STEWART General Counsel No Bar Roll Number Assigned
KEITH T.’~-IILL ~ Regional Attorney Bar Roll No. 15200000
~/i-I~ELLE T. BUTLER Supervisory Trial Attorney Bar Roll No. 1286

AGENT FOR SERVICE OF PROCESS: C. T. Corporation System 8550 United Plaza Blvd. Baton Rouge, LA 70809

Bar Roll Number 24335
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New Orleans District Office 701 Loyola Avenue, Suite 600
New Orleans, Louisiana 70113 Telephone: (504) 589-6817
(504) 589-2701 Facsimile: (504) 589-2805

6

 
 Case 3:00-cv-02238-RGJ-KLH Document 13 Filed 02/15/2001 Page 1 of 8

UNITED STATES DISTRICT COURT

FILED

WESTERN DISTRICT OF LOUISIANAUSDC, WESTERN DISTRICT Of LA

ROBERTJ2SHEMWsu., CLER

MONROE DIVISION

DATE

.5 J b

BY ______ _ ~~~ ___-

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

CIVIL ACTION NO. 00-2238-M

VERSUS

U.S. DISTRICT JUDGE ROBERT G. JAMES

RITE AID CORPORATION

U.S. MAGISTRATE JUDGE JAMES D. KIRK

MEMORANDUM RULING

Before the court is a motion for protective order [Doc. #10]

by defendant K&B Louisiana Corporation d/b/a Rite Aid ("Rite Aid") .

Because time was of the essence, a hearing was held by telephone on

February 15, 2001 and letter briefs filed by the attorneys.

Counsel for Rite Aid, George D. Fagan, alleges that on

February 15, 2000 he prepared a letter to Tracy L. Schrey in the

legal department of Rite Aid, his client. However, the letter was

mistakenly placed in an envelope prepared for a letter to an

investigator with the plaintiff, Equal Employment Opportunity

Commission ("EEOC"). Mr. Fagan asserts that he sent six letters in

an attempt to regain possession of the letter and shows that it is

subject to the attorney-client privilege and that the letter was

inadvertently mailed to plaintiff.

Plaintiff's counsel, Yancy A. Carter, argues that the ethical

standards governing attorneys do not apply in this case because the

letter was received by an investigator, not by the legal

department. EEOC further argues that the letter is not subject to

attorney-client privilege because the facts contained in it were

Case 3:00-cv-02238-RGJ-KLH Document 13 Filed 02/15/2001 Page 2 of 8
previously known to EEOC. EEOC's attorney admits, however, that he became aware of EEOC's possession of the letter in May 2000 and, at that time, Rite Aid's counsel Fagan demanded its return and asserted the privilege. Carter claims, however, that EEOC "did not see why the document was privileged" and that "Mrs. Thompson is shielded from any ethical standard violations to which attorneys would be subject."
Despite the claim of privilege and the fact that it was obvious that the letter had been inadvertently sent, neither EEOC nor its counsel ever sought a court ruling on the matter, but simply refused to return the document. Thereupon, defendant's counsel Fagan filed the instant motion for protective order.
Questions of privilege are governed by state law. The law has long recognized that communications between attorney and client made with the expectation of confidentiality are protected by the attorney-client privilege and cannot be disclosed without the client's permission. Pitard v. Stillwater Transfer and Storage Co., 589 So.2d 1127 (La.App. 4 Cir. 1991).
The attorney-client privilege cannot be waived by the attorney's inadvertent disclosure of a communication in that such disclosure is without the consent of the client. Id. at 1128; La. R.S. 13:3734.3. See also Hebert v. Anderson, 96-0994 (La.App. 4 Cir. 9/18/96), 681 So.2d 29.
2

Case 3:00-cv-02238-RGJ-KLH Document 13 Filed 02/15/2001 Page 3 of 8
The client is the holder of the attorney-client privilege and only the client has the power to waive it. Such waiver must be founded on an affirmative act by the client. Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138 (La. 1987).
In addition, the American Bar Association Standing Committee on Ethics and Professional Responsibility has addressed this issue and has concluded that it is the obligation of an attorney who receives an obviously inadvertent transmission of apparently privileged material, to immediately cease examining the documents and return them to the sender and not use or disclose the documents. Formal Opinion No. 82-368 (October 16, 1992) (copy attached) .
The Fifth Circuit has considered this issue in Alldread v. City of Grenada, 988 F.2d 1425 (5th Cir. 1993). The court balances the circumstances surrounding the disclosure, including (1) the reasonableness of precautions taken to prevent disclosure; (2) the amount of time taken to remedy the error; (3) the scope of discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness. Here, like Greneda, the documents were obviously sent inadvertently. Mr. Fagan immediately informed opposing counsel of his error and repeatedly attempted to regain possession of the document. The materials were not discoverable and included not only confidential communication by the attorney to his client, but also his mental impressions. Fairness mandates
3

Case 3:00-cv-02238-RGJ-KLH Document 13 Filed 02/15/2001 Page 4 of 8

that the documents be returned. There was no waiver.

In this case, it should have been obvious to the investigator

upon receipt of the letter that neither she nor the EEOC was the

intended recipient of the letter 1 • Although EEOC argues that it

often receives copies of letters addressed to other persons, this

letter was obviously a communication by an attorney to his client,

the EEOC's adverse party. In addition, a perusal of even the first

few lines of the two-page letter reflects that (l) the letter is

from defense counsel; (2) the letter is directed to defense

counsel's client; (3) the letter contained a client file number;

and (4) the letter expresses that "my opinion is .

If If the

letter was read in its entirety, which it was (in violation of the

ABA rules), it would further have been clear that the letter

discussed strategy with regard to settlement. The investigator

should have known that the letter needed to be returned or should

have contacted the EEOC legal department for advice. Regardless of

the investigator's obligations, however, attorney Carter became

aware of the existence of the letter, its contents, and the claim

of privilege in May 2000. Now, almost nine months later, the EEOC

has steadfastly refused to return the letter despite repeated

EEOC apparently retained the envelope in which the letter was sent apparently to prove that it was mailed to the investigator. The retention of the envelope, unless it is the practice of the EEOC to retain all envelopes in which it receives mail, is an indication that at the very moment the letter was received, it was obvious that the letter was not intended for the EEOC.
4

~~------~-------

Case 3:00-cv-02238-RGJ-KLH Document 13 Filed 02/15/2001 Page 5 of 8
demands of defense counsel and did not file any motion with the
court to have the matter resolved. Had the attorney performed
legal research with regard to Louisiana cases, cases from other
states, or ethics opinions, he would have quickly discovered his
error in refusing to return the document and would have known
exactly what was required of him and his client.
Therefore, I find that the letter was inadvertently sent, that
it is a confidential communication subject to both the attorney-
client and work product privileges, there was no waiver of the
privilege and that the letter should have been returned to the
sender. "Lawyers are not required to stuff the envelopes and
deposit the mail in order to protect the privilege." Resolution
Trust Corp. v. First of America Bank, 868 F.Supp. 217 (W.D. Mich.
1994).
In Resolution Trust, the court observed:
"In this Court's judgment, common sense and a high sensitivity toward ethics and the importance of attorneyclient confidentiality and privilege should have immediately caused the plaintiff's attorneys to notify defendant's counsel of his office's mistake. The lawyers who received the document must have known by the markings and contents of the document that a clerk or secretary in the defendant's lawyer's office mistakenly included the privileged letter within the documents intended for the plaintiff's lawyers. Thus, plaintiff's lawyers must have known that neither the defendant nor its lawyer intended to waive the attorney-client privilege. While lawyers have an obligation to vigorously advocate the positions of their clients, this does not include the obligation to take advantage of a clerical mistake in opposing counsel's office where something so important as the attorney-client privilege is involved." Id. at 219.
5

Case 3:00-cv-02238-RGJ-KLH Document 13 Filed 02/15/2001 Page 6 of 8
Therefore, defendant's motion [Doc. #10] is GRANTED. IT IS THE ORDER of the court that the EEOC and Yancy A. Carter return the original letter by mailing it no later than 4:00 p.m. on February 15, 2001 to Mr. George D. Fagan. IT IS FURTHER ORDERED that the EEOC and Mr. Carter obtain all copies of the letter which they sent to anyone or all copies made by recipients of the copies and return those to Mr. Fagan by February 22, 2001. IT IS FURTHER ORDERED that no computer images or files of the letter be retained. IT IS FURTHER ORDERED that the Government, including the EEOC and Mr. Carter, may not make use of the letter or any of the information contained in the letter unless it can prove that it had obtained the information from another source prior to receipt of the letter and any reference to it is stricken from plaintiff's pleadings. IT IS FURTHER ORDERED that the EEOC and Mr. Carter are not to disclose the contents of the letter to anyone or to refer to the letter at any trial or other proceeding in this case. IT IS FURTHER ORDERED that defendant's counsel, Mr. Fagan, submit to the court by February 26, 2001 an itemized list of his time and expenses in attempting to regain possession of the letter and asserting his client's privilege, in preparing and filing the motion for protective order and attending the telephone hearing on
6

Case 3:00-cv-02238-RGJ-KLH Document 13 Filed 02/15/2001 Page 7 of 8 it and all other matters in connection therewith. Whether additional sanctions will be ordered and whether this matter will be referred to the Louisiana State Bar Association is pretermitted for further consideration.
This case may be appealed to the district judge, but the orders contained herein shall be complied with as stated unless the district judge orders a stay pending any appeal to him.
~~y THUS DONE AND SIGNED at Alexandria, Louisiana, this
of February 2001.
..
JAMES D. KIRK STATES MAGISTRAT
7

--

Case 3:00-cv-02238-RGJ-KLH Found Document - 30-NOV AZATT 10 -

Document 13

Filed 02/15/2001

Page 8 of 8 Page 1 of 1

(Cite as: 30-NOV Ariz. Att'y 10, *15)

of evidence that could have been held back. "'[EN47]

The court continued:

Indeed, whenever the question has been considered by courts, the expansive view of waiver has been rejected ....

"The general rule that a disclosure waives not only the specific communication but also the subject matter of it In other

communications is not appropriate in the case of inadvertent disclosure, unless it is obvious a party Is attempting to gain

an advantage or make o f f '

unfair use of the disclosure." ",(fJ'H_8]

The merican Bar Association Standing Committee on Ethics and Professional Responsibili ("ABA Committee")

recently addressed t e ethjcal~6

-

(Cite as: 30-NOV Ariz. AU'y 10, *16 )

o.Q!jgation...of an .attom~ w~o receives aO..Qbvjollsly inadverteot lcansmissjon of privileged material. "'[FN49] The ABA

Committee adopted the position that when a lawyer receives an obviously inadvertent transmission of apparently

privileged material, the lawyer must, upon noticing the apparently privileged nature of the material, immediately cease

examining them and return them. Although the ABA Committee's position does not impose any duties on attorneys who

are not members of the ABA, its position is highly probative of the ethical duties required under the rules governing

lawyers' ethical conduct in the

(Cite as: 30-NOV Ariz. Att'y 10, *16)

respective states, including Arizona. Accordingly, if a judge found that the attorney who received the privileged documents

deviated from the standard of conduct prescribed by the ABA Committee, the judge might be inclined to impose sanctions

on the attorney and his or her client for breach of the attorney's ethical duties.

Consequently, when confronted with an "obviously inadvertent disclosure," a prudent attorney may want to copy the

inadvertently disclosed document, return the original and promptly file an in camera motion with the court seeking a

declaration of waiver. This approach allows the attorney to preserve the argument that the applicable privileges have been

waived, while ensuring that the lawyer has satisfied his or her ethical obligations as prescribed by the ABA Committee....

[FN50)

CONCLUSION

The modern trend regarding inadvertent disclosure points towards an ad hoc five-factor balanCing test. As a result of this

approach's emphasis on the steps taken to prevent inadvertent disclosure, counsel should review their document

production procedure to ensure that adequate precautions are in place. The precautionary measures taken to prevent

disclosure and the time spent on these measures should be recorded. The parties also may want to enter into an

(Cite as: 30-NOV Ariz. AU'y 10, *16)

agreement or obtain a court ruling regarding the disposition of inadvertently disclosed privileged material in advance of

any *34

(Cite as: 30-NOV Ariz. Att'y 10, *34)

document production. Further, opposing counsel should not be permitted to review the documents before they are

screened with an intent to maintain the documents' confidentiality.

.

If an inadvertent disclosure occurs despite the precautionary measures, an objection should be filed immediately and

efforts should be taken to rectify the disclosure. A good record of all the precautionary measures will prove invaluable in

establishing that the inadvertent disclosure did not work a waiver of the applicable privilege. Counsel can at least take

some comfort in the fact that even if the inadvertent disclosure is found to have waived the applicable privileges with

respect to the inadvertenly disclosed material, it does not waive the privilege with respect to related documents which

were not disclosed.

Counsel also should take note of the ABA Committee's recent opinion regarding the ethical obligations of an attorney

who receives an obviously inadvertent disclosure of privileged documents. In such circumstances, the ABA Committee's

opinion imposes a duty on the attorney to cease examining the documents, not to use or disclose the documents'

contents and to return them to opposing counsel.

res:/IC:\Program%20Files\West%20Group\WestMate\WM32Res.DLLldhtm15.htm

2/1412001

 
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
Vo
K & B LOUISIANA CORPORATION d/b/a RITE AID,
Defendant.

FILED
~$TERN DtSTRtCT OF LA ~. $HEMWELL, CLERK
CWIL ACTION NO. CV 00-2"33"ff MAGISTRATE "M"
JURY TRIAL AND DEMAND

SECOND AMENDED COMPLAINT

NOW INTO COURT, through undersigned counsel, comes Plaintiff, the United States Equal Employment Opportunity Commission, and files its Amended Complaint. This Amended Complaint is filed to correct the name of the Defendant, K & B Louisiana Corporation d/b/a Rite Aid ("K & B"), which was erroneously identified as Rite-Aid Corporation.
NATURE OF THE ACTION This action is brought under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices and to provide appropriate relief to Johnny L. Williams ("Williams") who was adversely affected by such practices. The Plaintiff Equal Employment Opportunity Commission ("EEOC" or "Commission") alleges that Williams, a female, was subjected to discrimination by defendant, K & B Louisiana Corporation d/b/a Rite Aid ("K & B" or "Defendant" or "Employer"), when it failed to recall her to work from an alleged lay off because it preferred a male for the position in violation of Title VII. The specifics are alleged in paragraph 8 below.

JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 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 pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A. 2. The employment practices alleged to be unlawful were at all material times committed within the jurisdiction of the United States District Court for the Western District of Louisiana.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times and continuously to this date, the Defendant has been a foreign corporation doing business in the State of Louisiana and had at least 15 employees. 5. At all relevant times and continuously to this date, Defendant has been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e (b), (g) and (h).
At all relevant times, all material facts occurred within the jurisdiction of this Court.
STATEMENT OF CLAIMS More than thirty days prior to the institution of this lawsuit Williams filed a
2

charge with the Commission alleging violations of Title VII by the Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.

8. On or about October 10, 1998, Charging Party, Johnny L. Williams, was laid-off from her cashier position with the Defendant because the store location in which she worked wag closing and the store was relocating. The Defendant informed Williams that she would be called

back to work once the new store opened or whenever sales increased. In fact, the store manager informed Williams that the employees who were laid off would be the first choice for positions at

the new store. However, although other employees were offered positions with the new store when it opened, the Charging Party was not called back to work even though she went into the store and informed the store manager that she was interested in the open Liquor Department

Clerk position. The.manager felt he needed a male to meet the physical demands of the liquor department and as a result the manager hired a male applicant instead of recalling the Charging Party to the position. Charging Party was never given the chance to even demonstrate that she

could perform the duties of the liquor department clerk. Rather, because she was a female, she was denied the position based on the belief that only a male could perform the duties in the liquor

department in violation of Title VII. 9. The practices complained of in paragraph 8 above constitute sex discrimination in
violation of Title VII. Defendant is liable under Title VII for the above-described practices of its

store manager.

,

10. The effect of the practices complained of in paragraph 8 above has been to deprive

Williams of equal employment opportunities, alter her conditions of employment, and to

adversely affect her status as an employee because of her sex, in violation of Title VII.

3

11. The unlawful employment practices complained of in paragraph 8 above were intentional.
12. The unlawful employment practices complained of in paragraph 8 above were done and/or allowed to be done by Defendant with malice or reckless indifference to the federally protected rights of Williams in violation of the federal anti-discrimination laws.
13. The unlawful employment practices complained of in paragraph 8 above caused Williams to lose wages, suffer emotional distress, and the denial of her return to work caused her non-pecuniary losses to be proved at trial.
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 engaging in discriminatory hiring practices and any other employment practice which discriminate on the basis of sex in violation of Title VII. B. Order Defendant Employer to institute and carry out policies, practices, and programs which are designed to prevent sex discrimination in all aspects of employment particularly in hiring and which eradicate the effects of its past and present unlawful employment practices. C. Grant such further relief as the Court deems necessary and proper in the public interest. D. Award the Commission its costs of this action.
4

JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Gwendolyn Reams Acting General Counsel No Bar Roll Number Assigned

Regional Attorney Bar Roll No. 15200000

Supervisory Trial Attorney Bar Roll No. 1286

AGENT FOR SERVICE OF PROCESS: C. T. Corporation System 8550 United Plaza Blvd. Baton Rouge, LA 70809

~ANCY ~( CJ~RTER ’v..Senior Tria~Attorney
Bar Roll Number 24335
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
New Orleans District Office 701 Loyola Avenue, Suite 600
New Orleans, Louisiana 70113 Telephone: (504) 589-6817
(504) 589-2701 Facsimile: (504) 589-2805

 
 Case 3:00-cv-02238-RGJ-KLH

Document 52

Filed 08/21/2001

PUa.gSe.
WESTERN

D1DIISSoTTfRRI1CIC4T TOFCLOOUURITS~IA~NkAil~'r~"l>:I'.

FILED

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

ROBERTH.S

ay ____

____

~~~

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff
VERSUS
K & B LOUISIANA CORPORATION d/b/a RITE AID
Defendant.

CIVIL ACTION NG;·ol};;;Z23'8- -. _.,
DIST. JUDGE ROBERT G. JAMES MAG. JUDGE JAMES D. KIRK

RULING

This is a lawsuit brought by Plaintiff U.S. Equal Employment Opportunity Commission

("EEOC") against Defendant K & B Louisiana Corporation d/b/a Rite Aid ("Rite Aid") for

alleged sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"),

42 U.S.C. § 2000e, et seq. Specifically, the EEOC alleges that Rite Aid had a discriminatory

practice of hiring only males as liquor cashiers and that it denied Ms. Johnny L. Williams

("Williams") a job based on this practice.

On June 28, 2001, Rite Aid filed a Motion for Summary Judgment [Doc. #42] asserting

that it is entitled to judgment as a matter of law. Rite Aid contends that Williams signed

statements under penalty of perjury in which she claimed to be disabled and unable to work at the

time Rite Aid allegedly discriminated against her. Therefore, she did not suffer any injury from

Rite Aid's refusal to employ her as a liquor cashier. Rite Aid further contends that the EEOC

does not have standing to proceed with this lawsuit because it did not allege a pattern or practice

of discrimination, but brought this lawsuit only on behalf of Williams.

On July 20,2001, the EEOC filed a memorandum in opposition to Rite Aid's Motion for

Summary Judgment contending that Williams could have performed the job ofliquor cashier
®

.j

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 2 of 14
with reasonable accommodations, and, therefore, this case should be pennitted to proceed. The EEOC also contends that, even if Williams' individual claim fails, it has standing to proceed with its claim for injunctive relief.
For the following reasons, the Defendants' Motion for Summary Judgment [Doc. #42] is GRANTED IN PART AND DENIED IN PART.
L FACTS On October 2, 1996, Williams was hired by K & B as a cashier. In September 1997, Rite Aid began operating K & B stores, including the one where Williams worked, Store No. 7337, located at 3146 Louisville Avenue in Monroe, Louisiana. In November 1997, William Longoria ("Longoria") became the manager of Store No. 7337. Almost one year later, on October 10, 1998, Rite Aid laid off Williams and three other cashiers as part of a reduction in force. At that time, Rite Aid was in the process of building a new store on Desiard Street and of moving Store No. 7337 to another location at 1801 Louisville Avenue. Longoria was to be the manager of the Desiard Street store, and he told Williams and the other three cashiers to come see him about being re-hired once it opened. On December 12, 1998, Williams came into Store No. 7337 to pick up prescriptions at the phannacy. While there, she and a cashier, Vanessa Bates ("Bates"), who is also Williams' cousin, became involved in a disturbance. Williams alleges that Bates verbally attacked her. Bates alleges that Williams accused her of sleeping with Longoria to keep her job. After this incident, Longoria attests that he decided not to re-hire Williams because of the disturbance and
'Rite Aid characterizes Williams' "layoff' as a tennination, while the EEOC contends that she was temporarily laid off. For purposes of summary judgment, the Court views the evidence in the light most favorable to Williams and the EEOC.
2

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 3 of 14
Williams' "poor attitude." By early January 1999, Williams notified Rite Aid of her interest in returning to Store No.
7337 and asked to be allowed to fill in one or two days a week for an employee in the liquor department, Richard Wilson ("Wilson"), who was in the hospital. Longoria allegedly refused to allow Williams to fill in for Wilson, telling her that he preferred to have a male work in the liquor department because of the heavy unloading and bending required. Longoria allegedly stated that these duties were "too difficult for the ladies to do."
On January 9, 1999, Longoria hired Fred Mitchell ("Mitchell") to work as a liquor cashier at the Desiard Street store. That store had not yet opened, so Mitchell began working as a liquor cashier at Store No. 7337 (the old store).2 On January 16, 1999, Williams came into Store No. 7337, saw Mitchell working there, and questioned him about his employment with Rite Aid.
On January 19, 1999, Williams applied for Supplemental Security Income ("SSI") with the Social Security Administration ("SSA") and certified that she had been disabled since her lay-off on October 10, 1998. The following month, on February 5, 1999, she applied for disability insurance benefits ("DIB"), again certifying that she had been disabled since October 10, 1998. Above her signature on both documents, is a statement that "I know that anyone who makes or causes to be made a false statement or representation of material fact in an application or for use in determining a right to payment under the Social Security Act commits a crime punishable under Federal Law by fine, imprisonment or both." Williams has since testified that she did not understand the forms from the SSA and that she recited her problems in order for
2Unfortunately, Wilson died from his illness, and Rite Aid needed another employee in the liquor department.
3

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 4 of 14
SSA to determine whether she was eligible to receive disability benefits. On February 18, 1999, Williams completed a Pain Report in which she stated that she
injured her back in 1991 and that the pain had become worse over the years. She also stated that she had to lean on the counter at work to take weight offher hips and that her hearing loss and difficulty dealing with people caused problems at work. The same month, Williams' primary physician, Euil E. Luther ("Luther"), stated that she had a history of depression.
Also in February, Williams contacted Rite Aid through its toll-free telephone number to find out if she needed to submit a formal application for re-employment. She alleges that Rite Aid told her that a formal application was unnecessary because she was laid off only temporarily.
According to the testimony at her first deposition, on March 1, 1999, Williams again contacted Longoria about returning to work, and he allegedly told her that he would not hire her back because he did not like the way she treated her fellow employees.
On March 5, 1999, Williams filled out an Application for Service at the Monroe Mental Health Center ("MMHC"), stating that she suffered from chronic back and knee pain, hearing loss, obesity, and depression. Although Williams admits that the statements in the Pain Report and Application for Service were made in her handwriting, she now denies that she suffered some of those problems.
The Desiard Street store opened in mid-March 1999. The EEOC alleges that Williams could have returned to work at that time with a reasonable accommodation.
On March 31, 1999, Williams told an interviewer at MMHC that she was not re-hired by Rite Aid because of her weight and because they could not "push her around."
On June 19, 1999, Williams filed a Charge of Discrimination with the EEOC alleging
4

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 5 of 14
that she was not re-hired because of discrimination based on her age, disability, and sex. In August 1999, Williams was awarded SSI and DIB, dating back to January or February
1999. On February 1, 2001, the EEOC issued a cause detennination of sex discrimination.
After conciliation failed, the EEOC filed this lawsuit on September 29, 1999. At the time the suit was filed, Williams was receiving benefits from the SSA.
IL LAWANDANALYSIS A. Motions for Summary Judgment
Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c). The moving party bears the initial burden ofinfonning the court ofthe basis for its motion by identifYing portions ofthe record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir.1992). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id. The moving party cannot satisfy its initial burden simply by setting forth conclusory statements that the nonmoving party has no evidence to prove its case. Ashe v. Corley, 992 F.2d 540,543 (5th Cir. 1993).
lfthe moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
5

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 6 of 14
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986). B. Title VII
Title vn prohibits employers from "fail[ing] or refus[ing] to hire ... any individual ...
because of such individual's sex." 42 U.S.C. § 2000e-2(a)(1). In this case, the EEOC has produced direct evidence of sex discrimination by Rite Aid in
the form of Longoria's alleged statements to Williams. Nevertheless, "[b]eing qualified for the position sought is a sine qua non of a claim for ... discrimination, both in direct and indirect evidence cases. A person who is not qualified, like a person who has not applied for the position or a person not of the protected class, does not have standing to complain of. .. animus." Peguese v. Borup, 144 F. Supp.2d 743, 747-48 (S.D. Tex. 2001).
Rite Aid raises two related defenses. First, Rite Aid argues that Williams is judicially estopped from denying that she was unable to work at the time Rite Aid refused to re-hire her and, thus, she has suffered no injury. Second, Rite Aid argues that, because the EEOC has no standing to proceed with this lawsuit because it derives its standing from Williams' claim and that claim fails. The Court addresses each of these arguments in turn.
1. Judicial Estoppel Rite Aid produces evidence that Willianls signed written statements to the SSA in which she alleged that she was disabled and unable to work because of a number ofhealth conditions,
6

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 7 of 14
including obesity, depression, back and knee pain, and hearing problems. Based on these statements, Rite Aid argues that Williams should be judicially estopped from denying that she is disabled and unable to work at the time Rite Aid allegedly discriminated against her. Therefore, Rite Aid contends that Williams has no standing because she was disabled and, therefore, unable to work as a liquor cashier and suffered no injury from its alleged discrimination against her.
The equitable doctrine ofjudicial estoppel prevents a party from asserting a position in a legal proceeding contrary to a position taken previously in the same or some earlier proceeding. Ergo Science, Inc. v. Martin, 73 F.3d 595,598 (5th Cir. 1996). "The purpose of the doctrine is 'to protect the integrity ofthe judicial process' by 'preventing parties from playing fast and loose with the courts to suit the exigencies of self interest. '" In re Coastal Plains, Inc., 179 F.3d 197 (5th Cir. 1999)(quoting Brandon v. Interfist Corp., 858 F.2d 266,268 (5th Cir. 1988)). Further, the doctrine is not limited to proceedings before courts oflaw; it also extends to quasi-judicial administrative proceedings. See Harris v. Marathon Oil Co., 948 F. Supp. 27, 28 (W.D. Tex. 1996), affd, 108 F.3d 332 (5th Cir. 1997); Zapata GulfMarine Corp. v. Puerto Rico Maritime Shipping Authority, 731 F. Supp. 747, 749 (B.D. La. 1990); Muellner v. Mars, Inc., 714 F. Supp. 351,358 (N.D. Ill. 1989).
The Supreme Court has examined whether a statement made in the context of administrative proceedings before the SSA can serve as judicial estoppel in a subsequent employment discrimination case. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999). In Cleveland, the Supreme Court considered the apparent conflict that arises when a plaintiff asserts to the SSA that she is disabled under the Social Securities Act, 42 U.S.C. §423(a), but then files an employment discrimination lawsuit under the Americans with
7

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 8 of 14
Disabilities Act ("ADA"), 42 U.S.C. §12111, asserting that her former employer failed to reasonably accommodate her disability. Id. The Fifth Circuit applied a rebuttable presumption to ADA plaintiffs who had previously applied for or received benefits through the SSA and found that they were judicially estopped from bringing a lawsuit under the ADA except in some "limited and highly unusual circumstances." Id. at 805. The Cleveland Court rejected this rebuttable presumption and, instead, held that "an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier ... [claim] oftotal disability ... [to the SSA] ... [, but] must proffer a sufficient explanation." Id. at 806. "[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement." Id. Rather, he or she must offer an explanation "sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiffs good-faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation. '" Id. at 807.
The Court concludes that Cleveland should be applied to Title vn cases when the
employee's ability to perform the job is brought into issue. Whether or not an employee alleges disability discrimination, employers are obliged to comply with the ADA's requirements. If, as the EEOC asserts, Longoria refused to re-hire Williams because he believed that the unloading and bending required for the liquor cashier position were "too difficult for the ladies to do," then Williams never had the opportunity to ask for a reasonable accommodation or show that she could perform the job without one. Employers should not be permitted to circumvent the requirements of the ADA by discriminating against an employee on another protected basis. Therefore, the Court finds that the purposes of the anti-discrimination laws are properly served
8

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 9 of 14
by applying Cleveland to Title VII cases when applicable. Williams asserted to the SSA that she had been disabled since the day of her lay-off, on
October 10, 1998.3 Further, she did receive and, apparently, continues to receive disability benefits. Therefore, Cleveland requires the EEOC, on Williams' behalf, to proffer a sufficient explanation for the apparent contradiction.
As did the plaintiff in Cleveland, the EEOC argues that the SSA's definition of "disabled" does not contemplate the opportunity for reasonable accommodation required by the ADA. While Williams was determined to be disabled under the SSA's definition, the EEOC argues that she was also "qualified" for the liquor cashier job because she could have fulfilled its essential functions with a reasonable accommodation.
The Court agrees that the EEOC has offered an adequate legal explanation of Williams' inconsistent positions to the SSA and in this lawsuit. However, the explanation must also be supported by competent summary judgment evidence. As Rite Aid's memorandum points out, in her two depositions, Williams (1) claimed that she does not have some of the health problems listed on the forms; (2) claimed that she did not understand the form; (3) claimed that she just listed her health problems with the idea that the SSA would make the determination whether she was disabled; and (3) claimed that some of the statements on the forms were false, even though she admitted that the forms appeared to be in her handwriting and that she had signed them. Williams' testimony does not support the argument made on her behalf by the EEOC. She never
3Although the EEOC has attempted to make an issue out of the fact that Williams applied for benefits after Rite Aid refused to re-hire her, she asserted to the SSA that she had been disabled prior to the refusal. She is held to her statement, unless she can offer an explanation for the inconsistency.
9

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 10 of 14
asserts that she could have perfonned the job ofliquor cashier with a reasonable accommodation, but simply contradicts her previous statement. The Cleveland Court made clear that this type of testimony will not suffice to raise a genuine issue of material fact for trial. Accordingly, the Court finds that application of the judicial estoppel doctrine is appropriate.
Rite Aid's Motion for Summary Judgment on the issue ofjudicial estoppel is GRANTED, and the EEOC is prohibited from denying that Williams was disabled at the time she applied for the liquor cashier position. Further, because Williams was not qualified for the position at the time of the alleged discrimination, she suffered no injury. The Court must now detennine whether the EEOC has standing to proceed with its claim for injunctive relief
2. EEOC's Standing "Congress gave the EEOC broad discretion to detennine which suits it will bring [against private employers] under § 706 (and § 707) of Title VII, and which it will leave to be brought by private parties." United States v. Allegheny-Ludlum Indus., Inc., 512 F.2d 826,868 (5th Cir. 1975). Under § 706, if the EEOC has been unable to negotiate a conciliation agreement acceptable to it, then it has standing to bring a civil action to the same extent as individuals aggrieved by discrimination in employment. See 42 U.S.C. § 2000e-5(f)(I). In a § 706 case, the EEOC "seeks to vindicate, sometimes on a class-wide basis, the rights of aggrieved individuals who are challenging an unlawful employment practice by an employer." Equal Employment Opportunity Commission v. Mitsubishi Motor Mnf ofAmerica, Inc., 990 F. Supp. 1059, 1084 (1998). Under § 707, the EEOC may bring a civil action "[w]henever [it] has reasonable cause to believe that any person ... is engaged in a pattern or practice of [discrimination]." 42 U.S.C. §
10

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 11 of 14
2000e-6(1). To do so, however, the EEOC must file a complaint "setting forth facts pertaining to such pattern or practice, and ... requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as ... necessary ...." Id. In a § 707 action, the EEOC "challenges systemic, wide-spread discrimination by an employer." Mitsubishi, 990 F. Supp. at 1084.
Rite Aid asserts that the EEOC brought a § 706 lawsuit in this case because the agency seeks relief only on behalf of Williams and describes only those facts regarding a specific instance of alleged discrimination against her. Rite Aid argues that the EEOC cannot proceed with this lawsuit under § 706 because its standing is derived solely from the alleged discrimination against Williams and she has suffered no "injury." Further, Rite Aid also argues that the EEOC cannot now proceed under § 707 because it never alleged a pattern or practice of systemic discrimination, never filed charges of systemic discrimination, never investigated whether the company engaged in systemic discrimination, and never issued a cause determination of or attempted to conciliate systemic discrimination.
The EEOC responds that its standing is not derivative, but independent. The EEOC points out that even if Williams had settled with Rite Aid, it could continue its action against the company for the benefit ofthe public interest. Its charge is to vindicate public policy, not merely to enforce private rights. Accordingly, the EEOC argues that its lawsuit may proceed whether or not Williams herself has standing.
Sections 706 and 707 are separate provisions of Title vn which give the EEOC authority
to bring lawsuits in its own name. The EEOC cites only § 706 in its Second Amended Complaint and never uses the term "pattern or practice" or otherwise alleges systemic
11

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 12 of 14
discrimination. However, the EEOC does characterize the nature ofits action as one "to correct unlawful employment practices and to provide appropriate reliefto ... Williams." Second Amended Complaint, p. 1 (emphasis added). Further, the EEOC sets forth facts alleging that Rite Aid's manager "felt he needed a male to meet the physical demands of the liquor department" and that this is a discriminatory "practice" constituting sex discrimination.
The Court agrees with Rite Aid that the EEOC's lawsuit was brought pursuant to § 706, not § 707. Nevertheless, the EEOC "is not merely a proxy for the victims of discrimination[,] and ... the EEOC's enforcement suits [pursuant to § 706] should not be considered representative actions" subject to the requirements for a class action. General Tel., 446 U.S. at 326. "When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in prev~nting employment discrimination." Id.
In EEOC v. Brookhaven Bank & Trust Co., 614 F.2d 1022 (5th Cir. 1980), the Fifth Circuit considered whether the EEOC could proceed with a lawsuit under § 706 when the charging party's original complaint was determined to be untrue. In that case, the charging party alleged that the defendant refused to hire her because of her race. Id. at 1023. Although the EEOC found no reasonable cause to believe the charging party was discriminated against, the agency did find that the defendant maintained segregated job classifications in violation of Title VIT. Id. The district court dismissed the case, in part, on the basis of standing because "the charging party suffered no injury and is not a member of the class [the EEOC] is seeking to represent, [and, thus,] it follows without question that the EEOC has no derivative 'injury' or 'membership' in the class." Id. at 1024.
However, the Fifth Circuit rejected the district court's analysis and explained:
12

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 13 of 14
Employment discrimination has been interpreted to be, by its nature, class discrimination, permitting investigation aimed at determining an employer's handling of the class ... [42 U.S.C. § 2000e-5(f)(1)] gives EEOC standing to sue under Title VII to the same extent as individuals aggrieved by discrimination in employment ... More significantly, however, the court held that the EEOC was itself a member of the class ... [T]he authority of the EEOC to represent a Title VII class stems not from derivative class membership, but from congressional act. Therefore, it should not be fatal to the EEOC's action that the original complaining party has failed to qualify for class membership.
Id. (citations omitted).4 The Brookhaven Court further explained that the purpose of a charge of
discrimination is "to trigger investigatory and conciliatory procedures of the EEOC," and a
subsequent civil action is limited only by the "scope of the EEOC investigation which can
reasonably be expected to grow out of the charge." Id.
Williams filed a charge of sex discrimination, which the EEOC investigated. After
finding direct evidence of sex discrimination by Rite Aid's manager, Longoria, the EEOC tried to
conciliate this case with Rite Aid, but that conciliation failed. When it filed this lawsuit, the
EEOC sought to obtain damages for Williams, but it also requested a permanent injunction and
other equitable relief, all on the basis of Rite Aid's discriminatory hiring practices. While the
EEOC may not recover damages for Williams, it may proceed with its lawsuit for injunctive and
other equitable relief designed to prevent Rite Aid from allegedly continuing to engage in a
practice of refusing to hire females as liquor cashiers.
IlL CONCLUSION
For the foregoing reasons, Rite Aid's Motion for Summary Judgment [Doc. #42] is
4The Brookhaven Court relied in part on an earlier Fifth Circuit decision, EEOC v. D.H. Holmes, 556 F.2d 787 (5th Cir. 1977), which had held that the EEOC must comply with the class requirements under Fed. R. Civ. P. 23. This holding was overturned by the Supreme Court in General Tel., supra. However, the rationale expressed in Brookhaven is bolstered by the Supreme Court's decision that the EEOC is not required to comply with Rule 23.
13

Case 3:00-cv-02238-RGJ-KLH Document 52 Filed 08/21/2001 Page 14 of 14

GRANTED IN PART AND DENIED IN PART. Plaintiff is judicially estopped from denying

that Williams was disabled and unable to work at the time she sought re-employment with Rite

Aid. Accordingly, Williams suffered no injury, and the EEOC cannot recover damages or any

other relief on her behalf. To this extent, Rite Aid's Motion for Summary Judgment is

GRANTED.

However, the EEOC has standing to proceed with its claim for injunctive and other

equitable relief under 42 U.S.C. § 2000e-5(f)(1). To this extent, Rite Aid's Motion for Summary

Of_~=.; . .;: : ,of'-'Uo'<. .c. +- .I Judgment is DENIED.

2-0 MONROE, LOUISIANA this

day

_ _ _ _ _:' 2001.

--h

14

 
 Case 3:00-cv-02238-RGJ-KLH Document 66 Filed 11/15/2001 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

u. S. DISTRICT COURT
WllT&RN OtSTRICT ()F LOUISIANA
FILED
NOV I 5 200\

MONROE DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff

CIVIL ACTION NO. 00-2238 JUDGE ROBERT G. JAMES

VERSUS

MAG. JUDGE JAMES D. KIRK

K & B LOUISIANA CORPORATION d/b/a RITE AID,
Defendant

RULING

This is a lawsuit brought by Plaintiff U.S. Equal Employment Opportunity Commission

("EEOC") against Defendant K & B Louisiana Corporation d/b/a Rite Aid ("Rite Aid") for

alleged sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"),

42 U.S.C. § 2000e, et seq. Specifically, the EEOC alleges that Rite Aid had a discriminatory

practice of hiring only males as liquor cashiers and that it denied Ms. Johnny L. Williams

("Williams") ajob based on this practice.

On June 28, 2001, Rite Aid filed a Motion for Summary Judgment [Doc. #42] asserting

that it was entitled to judgment as a matter oflaw. Rite Aid contended that Williams signed

statements under penalty of perjury in which she claimed to be disabled and unable to work at the

time Rite Aid allegedly discriminated against her. Therefore, she did not suffer any injury from

Rite Aid's refusal to employ her as a liquor cashier. Rite Aid further contended that the EEOC

did not have standing to proceed with this lawsuit because it did not allege a pattern or practice

of discrimination, but only brought this lawsuit on behalf of Williams.

Case 3:00-cv-02238-RGJ-KLH Document 66 Filed 11/15/2001 Page 2 of 6
On August 20, 2001, this Court ruled that the EEOC could not recover damages for Williams, but it could proceed with its lawsuit for injunctive and other equitable relief designed to prevent Rite Aid from allegedly continuing to engage in a practice of refusing to hire females as liquor cashiers.
On September 26,2001, Rite Aid filed its Second Motion For Summary Judgment and Other Relief [Doc. #55] moving the Court for summary judgment dismissing the EEOC's claims or alternatively, for partial summary judgment as the Court deems appropriate. Rite Aid contends that the EEOC's allegations, even if true, are insufficient to make out a claim for injunctive or equitable relief.
On October 11,2001, the EEOC filed an Opposition [Doc. #58]. The EEOC alleges that William Longoria ("Longoria"), manager of one of Rite Aid's stores, refused to hire Williams and another woman based on a sexual stereotype. The EEOC further alleges that Longoria's actions, if left unchecked, will affect more applicants in the future. These allegations, according to the EEOC, are sufficient to defeat Rite Aid's second motion for summary judgment.
For the following reasons, the Court DENIES Defendant Rite Aid's Second Motion For Summary Judgment and Other Relief [Doc. #55].
L Law and Analysis A. Motions for Summary Judgment
Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter oflaw. Fed.R.Civ. P. 56(c). The moving party bears the initial burden of informing the
2

Case 3:00-cv-02238-RGJ-KLH Document 66 Filed 11/15/2001 Page 3 of 6
court of the basis for its motion by identifying portions of the record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. rd. The moving party cannot satisfy its initial burden simply by setting forth conclusory statements that the nonmoving party has no evidence to prove its case. Ashe v. Corley, 992 F.2d 540,543 (5th Cir. 1993).
If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). B. Title VII
Title VII prohibits employers from "fail[ing] or refus[ing] to hire ... any individual ... because of such individual's sex." 42 U.S.C. § 2000e-2(a)(1).
In its Ruling on Rite Aid's first Motion For Summary Judgment, this Court recognized that the EEOC brought this suit under Section 706 of Title VIT. Under that provision, "[i]fthe court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice ..., the court may enjoin the respondent from engaging in such
3

Case 3:00-cv-02238-RGJ-KLH Document 66 Filed 11/15/2001 Page 4 of 6
unlawful employment practice, and order such affirmative action as may be appropriate ...." 42 U.S.C. Section 2000e-5(g)(1).
In this case, the EEOC has produced direct evidence of sex discrimination by Rite Aid in the form of Longoria's alleged statements to Williams. Longoria allegedly refused to allow Williams to fill in for an employee, telling her that he preferred to have a male work in the liquor department because of the heavy unloading and bending required. Longoria allegedly stated that these duties were "too difficult for the ladies to do."
Rite Aid contends that the EEOC's claims for injunctive and equitable relief should be denied for two reasons. First, Rite Aid contends that the allegations concerning Williams, even if true, are insufficient as a matter of law to support or make out a prima facie claim for injunctive or equitable relief. Second, Rite Aid contends that the EEOC's claims for injunctive and equitable relief must be dismissed because the EEOC has failed to demonstrate continuing harm or a real and immediate threat of repeated injury in the future. The Court addresses each of these arguments in turn.
1. Pattern or Practice Rite Aid contends that the EEOC's allegations concerning Williams are insufficient to support its claims. Instead, Rite Aid contends that the EEOC must prove that it engaged in a pattern or practice of discrimination. The Court disagrees. The EEOC need not show a pattern or practice to be awarded injunctive relief. EEOC v. Ilona ofHungary, Inc., 108 F.3d 1569 (7th Cir. 1996). In Ilona ofHungary, the EEOC alleged that the defendant violated Title VII when it terminated two Jewish employees for refusing to work on Yom Kippur. The district court found that the defendant's termination of the employees
4

Case 3:00-cv-02238-RGJ-KLH Document 66 Filed 11/15/2001 Page 5 of 6
violated Title VII. The district court awarded, among other things, pennanent injunctive relief. On appeal, the defendant argued that the district court's grant of pennanent injunctive relief was inappropriate because there had been no showing that the defendant engaged in a pattern or practice of discrimination.
In upholding the district court's grant of injunctive relief, the Seventh Circuit concluded that "[0]nce employment discrimination has been shown ..., district judges have broad discretion to issue injunctions ...." Id. at 1578. The Seventh Circuit reasoned that Section 706 of Title VII did not itself require that a pattern or practice of unlawful conduct be shown; injunctive relief was proper upon a showing that the employer engaged in an unlawful employment practice. Id. See also EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448,46768 (6th Cir. 1999) ("[t]he EEOC may obtain such general injunctive relief ... even where the EEOC only identifies one or a mere handful of aggrieved parties."); EEOC v. Northwest Airlines, Inc., 188 F.3d 695, 702 (6th Cir. 1999) ("The EEOC need not demonstrate or allege a pattern or policy of discrimination in order to obtain a pennanent injunction."); EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244, 1253 (11 th Cir. 1997) ("[T]he EEOC is nonnally entitled to injunctive relief where it proves discrimination against one employee and the employer fails to prove that the violation is not likely to recur.").
Therefore, in this case, the EEOC need not prove that Rite Aid engaged in a pattern or practice of discrimination to be awarded injunctive or equitable relief.
2. Basis For Injunctive Relief "Ordinarily, a court may not enjoin conduct that is neither threatened nor imminent." Walls v. Mississippi State Dept. ofPublic Welfare, 730 F.2d 306,325 (5th Cir. 1984) (citing
5

Case 3:00-cv-02238-RGJ-KLH Document 66 Filed 11/15/2001 Page 6 of 6

Congress a/Racial Equality v. Douglas, 318 F.2d 95, 100 (5th Cir. 1963)). "While the court's

power to grant injunctive relief may survive discontinuance of the illegal conduct in order to

prevent future wrongdoing, the necessary determination is that there exists some cognizable

danger of recurrent violation, something more than the mere possibility." Walls, 730 F.2d at 325

(quoting United States v. WT. Grant Co., 345 U.S. 629, 633 (1953)).

Rite Aid contends that the EEOC's claims for injunctive and equitable relief must be

dismissed because the EEOC has failed to demonstrate continuing harm or a real and immediate

threat of repeated injury in the future.

The EEOC argues that Rite Aid, through its manager Longoria, has a practice of not

considering or hiring females to work in the liquor department. Although the EEOC has focused

its case on Williams, it argues that Rite Aid would have denied other female applicants

employment opportunities and, if left unchecked, will do the same in the future.

Drawing evidentiary inferences in its favor, the Court finds that the EEOC has made a

sufficient showing to defeat summary judgment on the issue of whether a cognizable danger

exists that Rite Aid's alleged discriminatory conduct will occur again.

Accordingly, the Court DENIES Defendant Rite Aid's Second Motion For Summary

Judgment and Other Relief [Doc. #55].

IL Conclusion

For the forgoing reasons, Defendant Rite Aid's Second Motion For Summary Judgment

and Other Relief [Doc. #55] is DENIED.

MONROE~~is ~ ~~'--+-, day of---''---=---=''----__

2001

DATE: /I-/.s-_d/

BY: d'J@=
T01~'

ROBERT

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UNITED STATES

 
 Case 3:00-cv-02238-RGJ-KLH

Document 88

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Filed 03/07/2002 UP. aSg. eDJ1SToRfIC2T'COURT . ...,
WElTEAN DISTRICT OF LOUISIANA
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E QUAL E M P LOY M EN T '* CIVIL ActioN 'NO. 00-2238

OPPORTUNITY COMMISSION

* JUDGE ROBERT G. JAMES

VERSUS

* MAGISTRATE JUDGE HAYES

K & B LOUISIANA CORPORATION

d/b/a RITE AID

RULING AND ORDER1 Before the undersigned Magistrate Judge is a Motion to Quash a 30(b)(6) Notice of Deposition and/or for a Protective Order (Document #76). For reasons stated below the motion is GRANTED. Defendant K & B Louisiana Corporation d/b/a Rite Aid ("Rite Aid"), noticed a 30(B)(6) deposition ofthe EEOC seeking testimony and documentation regarding the EEOC's investigation into this matter prior to filing suit. The EEOC has moved to quash and for a protective order on the bases that the reasons for the issuance of the 30(B)(6) notice of deposition are simply (1) to relitigate issues already decided by the Court in two previous denials of defendant's motions for summary judgment; (2) to harass the Commission in retaliation for the Commission having subpoenaed an attorney in defendant's firm; (3) to challenge the EEOC's investigation through obtaining testimony that is either irrelevant or inadmissible; and (4) to obtain written discovery outside ofthe written discovery deadline. As the discovery deadline was extended by the court, the

'As this is not one ofthe motions excepted in 28 U.S.C. §636(b)(1)(A), nor dispositive of any claim on the merits within the meaning of Rule 72 ofthe Federal Rules of Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the standing order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).
@

II
Case 3:00-cv-02238-RGJ-KLH Document 88 Filed 03/07/2002 Page 2 of 2
fourth reason need not be considered. In ruling on the defendant's motion for summaryjudgment, the court specifically found that
it could not grant summary judgment because the EEOC had produced direct evidence of discrimination. Thus, this court has already ruled that there is direct evidence of discrimination which will need to be considered by a jury. Rite Aid has presented insufficient grounds for deposing the EEOC's representative. The information they seek i.e., what information was or should have been available to the EEOC through a reasonable investigation, appears to be available from other sources.
In addition, the undersigned has reviewed in camera all ofthe materials for which the EEOC claims privilege, and finds that the materials are either irrelevant or are privileged, constituting attorney work product, and/or attorney-client communications. Furthermore, the documents contain no information which could possibly support a claim that the plaintiff was unjustified in pursuing this action. Finally, defendant's broad discovery requests implicate documentation which has already been provided or which is as readily available to the defendant as to the plaintiffs (such as statutes, regulations, and case law).
The defendant has pointed to no underlying factual material which has not been provided to it which bears on the EEOC's proof of its allegations in this matter. Therefore, the Motion for
~YOfMarch.2002. Protective Order and/or to Quash is hereby GRANTED. THUS DONE AND SIGNED at Monroe, Louisiana, this (, COpy SENT~ DATE:~~_ 8Y:--,,~ _ TO'·-l5.4~~ _
2

 
 /'". ·.,-'---______.__a_. Case 3:00-cv-02238-RGJ-KLH Document 117 Filed 03/29/2002 Page 1 of 2

" . - ..

!

U. S. DISTRICT COURT

WESTERN DISTRICT Of LOUISIANA -,-~,

FILED

'

UNITED STATES DISTRICT COU~T .

WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

R08&R1'H. . . . .~u. BY _ _ _ _ _ _~~~~-

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
VERSUS
K & B LOUISIANA CORPORATION d/b/a RITE AID

CIVIL ACTION NO. 00-2238 JUDGE ROBERT G. JAMES MAG. JUDGE KAREN L. HAYES

RULING

On February 6,2002, Magistrate Judge James D. Kirk issued an order (1) granting the
u.s. Equal Employment Opportunity Commission's ("EEOC") motion for expedited hearing on
its motion to quash and for protective order regarding the 30(b)(6) deposition requested by K&B Louisiana Corporation d/b/a Rite Aid ("Rite Aid") of an EEOC representative; (2) postponing the requested deposition until after court review of the documents and privilege log which the EEOC was ordered to produce; and (3) granting Rite Aid's motion for protective order regarding the deposition of Craig M. Cousins. This Court affirmed Magistrate Judge Kirk's order on February 15,2002.
The action was subsequently reassigned to Magistrate Judge Karen L. Hayes. On March 7,2002, Magistrate Judge Hayes issued an order granting the EEOC's motion to quash and for protective order regarding the 30(b)(6) deposition of an EEOC representative. Magistrate Judge Hayes concluded, "the materials are either irrelevant or are privileged, constituting attorney work product, and/or attorney-client communications. Furthermore, the documents contain no information which could possibly support a claim that the plaintiff was unjustified in pursuing

Case 3:00-cv-02238-RGJ-KLH Document 117 Filed 03/29/2002 Page 2 of 2
this action." Ruling and Order issued March 7,2002 [Doc. No. 88], p. 2. On March 13,2002, Magistrate Judge Hayes ruled on a motion filed by Rite Aid for
reconsideration of her March 7,2002 order. Magistrate Judge Hayes noted that this Court had previously affirmed Magistrate Judge Kirk's ruling that Rite Aid's 30(b)(6) deposition of an EEOC representative could proceed. Magistrate Judge Hayes stated, "the 30(b)(6) deposition of a representative of the EEOC may take place, and the EEOC may preserve its objection to any questions asked, but the witness must answer the question, except as to any documents as to which the court has upheld the EEOC's claim ofprivilege." Ruling and Order issued on March 13,2002 [Doc. No. 91].
Before the Court is Rite Aid's appeal of Magistrate Judge Hayes' March 6 and March 13, 2002 orders [Doc. No. 93].
A magistrate judge's non-dispositive pretrial order is reviewable under the clearly erroneous and contrary to law standard. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
Following a review of the record, the Court finds that Magistrate Judge Hayes' March 6 and March 13, 2002 orders are not clearly erroneous or contrary to the law. Accordingly,
Accordingly, Rite Aid's "Objections To Certain Aspects Of Magistrate Judge Hayes' March 6,2002 and March 13,2002 Rulings And Orders On The EEOC's Motion To Quash And Motion For Protective Order" [Doc. No. 93] is DENIED, and Magistrate Judge Hayes' orders [Docs. No. 88 and 91] are AFFIRMED.
2 MONROE, LOUISIANA this <if day of-L-.::....L___----''''------_ _ _, 2002.
COpy
ROBERTG.J UNITED STATES DrST 2

 
 RECEIVED
MAR 2 1 2002
ROBERT H. SHEM>NELL, CLERK WESTER~ DISTRICT OF LOUISIANA
SHREVEPORT, LOUISIANA

’

~ V’~STERN DISTRIC3" OF LOUISIANA

FILED

UNITED STATES DISTRICT COUR~ WESTERN DISTRICT OF LOU~SI~~"~!~!~.!~ ~_i ~/i~...i~.._~_
MONROE D WSlON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
K & B LOUISIANA CORPORATION d/b/a RITE AID.
Defendant.

CIVIL ACTION NO. CV 00-2~38 MAGISTRATE "M"

THIRD AMENDED COMPLAINT NOW INTO COURT, through undersigned counsel, comes Plaintiff, the United States Equal Employment Opportunity Commission, and files its Third Amended Complaint. This Third Amended Complaint is filed to withdraw any prayer for punitive damages, to remove the previous paragraph "F" from the "Prayer for Relief’, and to remove the demand for a jury trial.
NATURE OF THE ACTION This action is brought under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices and to provide appropriate injunctive relief to correct the unlawful employment practices to which Johnny L. Williams ("Williams") was adversely subjected. The Plaintiff Equal Employment Opportunity Commission ("EEOC" or "Commission") alleges that Williams, a female, was subjected to sex discrimination by defendant, K & B Louisiana Corporation d/b/a Rite Aid ("K & B" or "Defendant" or "Employer"), when it failed to recall her to work from an alleged lay off because

it preferred a male for the position in violation of Title VTIhIe. specifics are alleged in paragraph 8 below.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(0(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 pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A. 2. The employment practices alleged to be unlawful were at all material times committed within the jurisdiction of the United States District Court for the Western District of Louisiana.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(0(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times and continuously to this date, the Defendant has been a foreign corporation doing business in the State of Louisiana and had at least 15 employees. 5. At all relevant times and continuously to this date, Defendant has been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e (b), (g) and (h). 6. At all relevant times, all material facts occurred within the jurisdiction of this Court.

STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit Williams filed a charge with the Commission alleging violations of Title VII by the Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. On or about October 10, 1998, Charging Party, Johnny L. Williams, was laid-off from her cashier position with the Defendant because the store location in which she worked was closing and the store was relocating. The Defendant informed Williams that she would be called back to work once the new store opened or whenever sales increased. In fact, the store manager informed Williams that the employees who were laid offwould be the first choice for positions at the new store. However, although other employees were offered positions with the new store when it opened, the Charging Party was not called back to work even though she went into the store and informed the store manager that she was interested in the open Liquor Department Clerk position. The manager felt he needed a male to meet the physical demands of the liquor department and as a result the manager hired a male applicant instead of recalling the Charging Party to the position. Charging Party was never given the chance to even demonstrate that she could perform the duties of the liquor department clerk. Rather, because she was a female, she was denied the position based on the belief that only a male could perform the duties in the liquor department in violation of Title VII. 9. The practices complained of in paragraph 8 above constitute sex discrimination in violation of Title VII. Defendant is liable under Title VII for the above-described practices of its store manager. 10. The effect of the practices complained of in paragraph 8 above has been to deprive Williams (or any other female) of equal employment opportunities, alter her conditions
3

of employment, and to adversely affect her status as an employee because of her sex, in violation

of Title VII.

11. The unlawful employment practices complained of in paragraph 8 above were

intentional.

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 engaging in

sex discrimination in its hiring practices and any other employment practice which discriminates

on the basis of sex in violation of Title VII.

B. Order Defendant Employer to institute and carry out policies, practices, and

programs which are designed to prevent sex discrimination in general and sex discrimination in

hiring in particular, and which eradicate the effects of its past and present unlawful employment

practices.

C. Order Defendant Employer to make whole Johnny L. Williams by any other

affirmative relief necessary to eradicate the effects of its unlawful employment practices.

Do

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

interest.

E. Award the Commission its costs of this action.

NO JURY TRIAL DEMAND

The Commission withdraws its requests for a jury trial on all questions of fact raised by

its complaint in that all remaining issues are questions for the Court to determine.

4

GWENDOLYN Y. REAMS Associate General Counsel
~HILL Regional Attorney Bar Roll No. 15200000

AGENT FOR SERVICE OF PROCESS: C. T. Corporation 8550 United Plaza Blvd. Baton Rouge, LA 70809

Supervisory Trial Attorney Bar Roll No. 1286
(Y~NCY A. C~TER" ’ffenior Trial Attorney Bar Roll Number 24335
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New Orleans District Office 701 Loyola Avenue, Suite 600 New Orleans, Louisiana 70113 Telephone: (504) 589-6817
(504) 589-2701 Facsimile: (504) 589-2805

 
 ’1

RECE!VED

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

U. $. DISTRICT COURT WESIERN DISIRICT OF LOUISIANA
FILED
MAY

EQUAL EMPLOYMENT OPPORT~ITY COMMISSION,
Plaintiff,
Vo
K & B LOUISIANA CORPORATION d/b/a RITE AID.

DEPUTY
CIVIL ACTION NO. CV O0-~zg~8 "M" Judge James/Mag. Hayes

Defendant.

FOURTH AMENDED COMPLAINT
NOW INTO COURT, through undersigned counsel, comes Plaintiff, the United States Equal Employment Opportunity Commission, and files its Fourth Amended Complaint. This Fourth Amended Complaint is filed to correct technical errors.
NATURE OF THE ACTION This action is brought under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices and was initially filed to provide appropriate relief to Johnny L. Williams ("Williams") who was adversely affected by such practices. The Plaintiff Equal Employment Opportunity Commission ("EEOC" or "Commission") alleged in its original complaint that Williams, a female, was subjected to discrimination by defendant, K & B Louisiana Corporation d/b/a Rite Aid ("K & B" or "Defendant" or "Employer"), when it failed to recall her to work from an alleged lay off because it preferred a male for the position in violation of Title VII. The specifics are alleged in

,I
paragraph 8 below. Now having decided that the Commission will not seek individual relief for Williams, the Commission seeks to enjoin Defendant from discriminating on the basis of sex in its hiring decisions.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451,1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) of Tire VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII"), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A. 2. The employment practices alleged to be unlawful were at all material times committed within the jurisdiction of the United States District Court for the Western District of Louisiana.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times and continuously to this date, the Defendant has been a foreign corporation doing business in the State of Louisiana and had at least 15 employees. 5. At all relevant times and continuously to this date, Defendant has been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e (b), (g) and (h). 6. At all relevant times, all material facts occurred within the jurisdiction of this
2

Court.

STATEMENT OF CLAIMS

7. More than thirty days prior to the institution of this lawsuit Williams filed a

charge with the Commission alleging violations of Title VII by the Employer. All conditions

precedent to the institution of this lawsuit have been fulfilled.

8. On or about October 10, 1998, Charging Party, Johnny L. Williams, was laid-off

from her cashier position with the Defendant because the store location in which she worked was

closing and the store was relocating. The Defendant informed Williams that she would be called

back to work once the new store opened or whenever sales increased. In fact, the store manager

informed Williams that the employees who were laid off would be the first choice for positions at

the new store. However, although other employees were offered positions with the new store

when it opened, the Charging Party was not called back to work even though she went into the

store and informed the store manager that she was interested in the open Liquor Department

Clerk position. The manager felt he needed a male to meet the physical demands of the liquor

department and as a result the manager hired a male applicant instead of recalling the Charging

Party to the position. Charging Party was never given the chance to even demonstrate that she

could perform the duties of the liquor department clerk. Rather, because she was a female, she

was denied the position in violation of Title VII, based on the belief that only a male could

perform the duties in the liquor department.

9. The practices complained of in paragraph 8 above constitute sex discrimination in

violation of Title VII. Defendant is liable under Title VII for the above-described practices of its

store manager.

,I

I I

10. The effect of the practices complained of in paragraph 8 above has been to deprive Williams (or any other female) of equal employment opportunities, alter her conditions of employment, and to adversely affect her status as an employee because of her sex, in violation of Title VII.
11. The unlawful employment practices complained of in paragraph 8 above were intentional.
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 engaging in sex discrimination in its hiring practices and any other employment practice which discriminates on the basis of sex in violation of Title VII. B. Order Defendant Employer to institute and carry out policies, practices, and programs which are designed to prevent sex discrimination in general and sex discrimination in hiring in particular, and which eradicate the effects of its past and present unlawful employment practices. C. Grant such further relief as the Court deems necessary and proper in the public interest. D. Award the Commission its costs of this action.
NO JURY TRIAL DEMAND The Commission no longer requests a jury trial on all questions of fact raised by its complaint.
4

GWENDOLYN YOUNG REAMS Associate General Counsel No Bar Roll Nttmber Assigned
Regional Attorney Bar Roll No. 15200000
Supervisory Trial Attorney Bar Roll No. 1286
CY A. ~ARTER Senior Trial Attorney Bar Roll Number 24335
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
New Orleans District Office 701 Loyola Avenue, Suite 600 New Orleans, Louisiana 70113 Telephone: (504) 589-6817
(504) 589-2701 Facsimile: (504) 589-2805
AGENT FOR SERVICE OF PROCESS: C. T. Corporation 8550 United Plaza Blvd. Baton Rouge, LA 70809

 
 Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 1 of 12

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

U. S. DISTRICT COURT WESTERN DISTRICT Of LOUISIANA
FILED
JUL 3 0 2002
~~BER~WELL' CLERK
DEPUTY

u.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
VERSUS
K & B LOUISIANA CORPORATION d/b/a RITE AID

CIVIL ACTION NO. 00-2238 JUDGE ROBERT G. JAMES MAG. JUDGE KAREN L. HAYES

OPINION

This is an action brought by the U.S. Equal Employment Opportunity Commission ("EEOC") against Defendant K & B Louisiana Corporation d/b/a Rite Aid ("Rite Aid") for alleged sex discrimination in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq. ("Title VII"). The EEOC alleges that Rite Aid engaged in a discriminatory practice of hiring only males to work in the liquor department and that it denied Ms. Johnny L. Williams ("Williams") a job based on this practice.
This matter came for trial before the Court on July 8 and July 9,2002. The Court hereby enters the following findings of fact and conclusions oflaw. To the extent that any finding of fact constitutes a conclusion of law, the Court hereby adopts it as such, and to the extent that any conclusion of law constitutes a finding of fact, the Court hereby adopts it as such.
L Findings ofFact On October 2, 1996, K & B hired Williams as a cashier. Williams worked at Store No.

Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 2 of 12
7337, located at 3146 Louisville Avenue in Monroe, Louisiana. In November of 1996, William Longoria ("Longoria") became the manager of Store No. 7337. When Longoria began, there was a liquor manager at Store No. 7337. The liquor manager was responsible for purchasing liquor, unloading the liquor delivery trucks, and stocking the liquor. The liquor delivery trucks often contained cases of liquor weighing sixty or seventy pounds. Willie James ("James") was Store No. 7337's full-time liquor manager; Richard Wilson ("Wilson") worked part-time filling in for James.
In August of 1997, Rite Aid took over the operation of a number ofK & B stores, including Store 7337. Under Rite Aid, there was no liquor manager position, per se. However, James and Wilson continued to be primarily responsible for unloading the liquor delivery trucks. If someone else was needed, Longoria preferred that a male help because he believed that the female employees were not capable of lifting some of the heavier cases of liquor. Longoria also preferred that male employees perform other manual tasks such as mopping or cleaning bathrooms. Longoria did not believe that the female employees were unable to perform these other tasks; rather, he believed that it was inappropriate to ask the female employees to perform them.
On March 8, 1998, Wilson assumed James' duties when James was severely injured and became unable to work.
On October 10, 1998, Rite Aid, as part ofa reduction in force, laid off Williams and two other cashiers who worked at Store No. 7337. At that time, Rite Aid was in the process of building a new store on Desiard Street and moving Store No. 7337 to 1801 Louisville Avenue. Longoria was to be the manager of the Desiard Street store, and he told Williams and the other
2

Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 3 of 12
cashiers that there was a possibility they might be rehired. Rite Aid also transferred two cashiers who worked at Store No. 7337 to another store in Monroe. One of these cashiers 'Yas Vanessa Bates ("Bates"). Bates was subsequently transferred back to Store No. 7337.
On December 12, 1998, Williams caused a disturbance at Store No. 7337. In front ofa number of customers, Williams confronted Bates about being transferred back to Store No. 7337. Williams told Bates that she must be "the pet" and accused Bates of sleeping with Longoria to keep her job.
About this time, Wilson was hospitalized with an illness and died. In order to fill the vacancy left by Wilson's death, Longoria interviewed two men, one ofwhom was Fred Mitchell ("Mitchell"), and one woman. Rite Aid hired Mitchell as a cashier on January 12, 1999.
Soon after Mitchell was hired, Williams caused another disturbance at Store No. 7337. She came into the store, saw Mitchell working there, and loudly questioned him about his employment with Rite Aid. Williams also repeated her derogatory accusations to Bates. As with the first disturbance, a number of customers were in the store.
On June 19, 1999, Williams filed a Charge of Discrimination with the EEOC alleging that she was not rehired by Rite Aid because of discrimination based on her age, disability, and sex. As part of its investigation, the EEOC sent requests for information to Rite Aid regarding the reasons that Williams was not rehired. One of Rite Aid's attorneys prepared responses based on information obtained from Longoria. In Rite Aid's response to the EEOC's "Request for Information No.3," Rite Aid explained that the reason it hired Mitchell was because Wilson and James were no longer able to work. "Both ofthese men worked mainly in the liquor department, constantly bending over to fill coolers and the hot set. Store No. 7337 felt it needed another male.
3

Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 4 of 12
to do these tasks, for it would have been almost impossible for a female to handle these duties on an everyday basis." Response to Request for Information No.3, Exhibit 4, p. 7.
On February I, 2000, the EEOC issued a cause determination of sex discrimination. After conciliation failed, the EEOC filed this lawsuit on September 29,2000. In an interrogatory served on Rite Aid, the EEOC asked for clarification of Rite Aid's response to the EEOC's "Request for Information No.3." Rite Aid responded that "it is Mr. Longoria's belief that many woman (sic) might have difficulty unloading and handling deliveries of liquor and other products received by Rite Aid Store No. 7337 on a daily basis ...." Response to Interrogatory No. 14, Exhibit 8, p. 14.
Rite Aid has written policies which prohibit its employees from unlawfully discriminating in hiring, promoting, suspending, recalling, terminating, and transferring individuals. Rite Aid uses frequent training sessions to educate its managers in order to reinforce its antidiscrimination policies.
Since January of 1999, females have comprised eighty-three percent of Rite Aid's employees in the market encompassing Store No. 7337.
IL Conclusions ofLaw A. Standing
Rite Aid contends that the EEOC must prove that Williams was qualified for the position she sought in order to prove that Rite Aid discriminated against her, and Rite Aid contends that the EEOC cannot do so. According to Rite Aid, the EEOC, therefore, cannot recover on behalf of Williams and has no standing to proceed with this action.
Rite Aid bases its argument on the Court's August 20,2001 Ruling [Doc. No. 52] on Rite
4

Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 5 of 12
Aid's first motion for summary judgment. In that ruling, the Court concluded that the EEOC is prohibited from denying that Williams was unable to work at the time that Rite Aid refused to rehire her. This conclusion was based on the fact that Williams had represented in applications for supplemental security income and disability insurance benefits that she was unable to work during that time period.! Further, the Court ruled that because the EEOC was precluded from denying that Williams was unable to work, the agency could not prove that Williams was qualified for the position she sought. The Court concluded that if Williams was not qualified for the position, she "suffered no injury, and Plaintiff cannot recover damages or any other reliefon her behalf." August 20,2001 Order [Doc. No. 53] (emphasis added).
The Court concludes that it was correct in ruling that the EEOC is estopped from denying that Williams was unable to work at the time Rite Aid refused to rehire her and that the EEOC is precluded from recovering damages on her behalf. However, the Court was incorrect in ruling that the EEOC is barred from recovering any reliefon Williams' behalf. Because the EEOC attempts to prove its case using direct evidence of discrimination, the agency need not prove that Williams was qualified for the position she sought.
There are generally two ways to establish discrimination. A plaintiff can present direct evidence of discrimination or employ the inferential method ofproof outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Mooney v. Aramco Services Co., 54 F.3d 1207, 1216 (1995). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of
IOn January 19, 1999, Williams applied for supplemental security income with the Social Security Administration and certified that she had been disabled since her layoff on October 10, 1998. The following month, on February 5, 1999, she applied for disability insurance benefits, again certifying that she had been disabled since October 10, 1998.
5
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Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 6 of 12
discrimination by showing that (1) she is a member of a protected class, (2) she was qualified for the position at issue, and (3) the position was filled with someone outside of the protected class. See Rutherford v. Harris County, 197 F.3d 173, 179 (5th Cir. 1999). Then the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000). lfthe defendant satisfies this burden, the burden shifts back to the plaintiff, who must prove that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. (citations omitted).
Direct evidence of discrimination is evidence which, if believed, proves discrimination without inference or presumption. Brown v. East Mississippi Electric Power Assoc., 989 F.2d 858,861 (5th Cir. 1993). When a plaintiff attempts to prove his or her case using direct evidence, the McDonnell Douglas framework does not apply. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Garcia v. City ofHouston, 201 F.3d 672,676 n.l (5th Cir. 2000); Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758, 762 (5th Cir. 1996). Instead, the Court applies the framework established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). First, the court must determine whether the evidence offered by the plaintiff is actually direct evidence of discrimination. See, e.g., Mooney, 54 F.3d at 1218-19; Garcia, 201 F.3d at 676-77. lfthe plaintiffs evidence is sufficient to prove discrimination without inference or presumption, the burden shifts to the defendant to demonstrate that it would havetaken the same action in the absence of the impermissible motivating factor. Id.; Brown, 989 F.2d at 861.
6

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This is known as the "mixed-motives" defense.2 Id. Even if thedefendant carries its bUfden, it is
not absolved of liability. The plaintiff s recovery is merely limited to injunctive and declaratory
relief, costs, and attorney's fees. Garcia, 201 F.3d at 676 (citing Buchanan v. City ofSan
Antonio, 85 F.3d 196, 200 (5th Cir. 1996); 42 U.S.C. § 2000e-5(g)(2)(B)(i)).3
The Court concludes that because the EEOC attempts to prove its case using direct
evidence, it need not prove that Williams was qualified for the position she sought. The EEOC
need only offer direct evidence of discrimination, thereby showing that an impermissible factor
played a part in Rite Aid's decision not to hire Williams. The burden then shifts to Rite Aid,
which must prove that it would not have hired Williams for reasons unrelated to her sex. If Rite
Aid is successful, the EEOC's recovery on behalf of Williams will be limited accordingly, but
2Unlike McDonnell Douglas, which merely involves a shifting of the burden of production, the Price Waterhouse framework involves a shift of the burden of persuasion to the defendant. Mooney, 54 F.3d at 1216-17; Brown, 989 F.2d at 862.
[I]n the Price Waterhouse framework ... the evidence the plaintiff produces is so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production. Both the burden of production and the risk of nonpersuasion are shifted to the defendant who, because of the inference the overt evidence showing the employee's bias permits, must persuade the factfinder that even if discrimination was a motivating factor in the adverse employment decision, it would have made the same employment decision regardless of its discriminatory animus.
Mooney, 54 F.3d at 1216 n.10 (citing Armbruster v. Unisys Corp., 32 F.3d 768,778 (3rd Cir.1994)).
3This was not always the case. The Supreme Court held in Price Waterhouse that if the defendant proved that it would have taken the same action in the absence of the impermissible factor, the plaintiff was barred from recovering any relief. Price Waterhouse, 490 U.S. at 242. This holding was expressly overruled by Congress in the Civil Rights Act of 1991. Garcia, 201 F.3d at 676 n.2.
7
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Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 8 of 12
the agency will not be completely prohibited from recovering on her behalf. The EEOC will be able to seek injunctive relief and costS.4
The Court concludes, therefore, that the EEOC has standing to recover on behalf of Williams, and the Court amends its August 20, 2001 Ruling [Doc. No. 52] on Rite Aid's first motion for summary judgment accordingly.5 B. Analysis of the EEOC's Claim
Title VII provides that "[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ...." 42 U.S.C. § 2000e-2(a)(1). A plaintiff proves discrimination by showing that race, color, national origin, or sex was a motivating factor for the contested employment decision, even though other factors also motivated the decision. 42 U.S.c. § 2000e-2(m); Garcia, 201 F.3d at 676 (citing Buchanan, 85 F.3d at 200).
1. The EEOC's Evidence of Discrimination The Court looks first to the EEOC's evidence to determine whether it proves, without inference, that an impermissible factor played a part in Rite Aid's decision not to hire Williams. The EEOC offers Rite Aid's response to the EEOC's "Request for Information No.3," in which Rite Aid explained that it hired Mitchell because there was no longer another male to help unload
4The EEOC does not seek attorney's fees or declaratory relief. SThe Court's ruling and order on Rite Aid's first motion for summary judgment were interlocutory and, therefore, the Court "at any time before final decree [can] modify or rescind [them]." Zimzores v. Veterans Administration, 778 F.2d 264,266 (5th Cir. 1985) (quoting John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88 (1922».
8

------~----"---~--~-

----, ,

," \".:""

Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 9 of 12
the liquor delivery trucks. Response to Request for fuformation No.3, Exhibit 4, p. 7. The EEOC also offers Rite Aid's response to its "futerrogatory No. 14," in which Rite Aid explained that Longoria believed that "many woman (sic) might have difficulty unloading and handling deliveries ofliquor ...." Response to futerrogatory No. 14, Exhibit 8, p. 14. Finally, the EEOC offers Longoria's trial testimony that he preferred that male employees unload the trucks.
The Court concludes that Rite Aid's "Response to Request for fuformation No.3" is direct evidence of discrimination. The document shows, without inference, that Longoria set out to hire a man to replace James and Wilson. Therefore, Rite Aid took Williams' sex into account when it decided not to rehire her.
Longoria testified at trial that Rite Aid's "Response to Request for fuformation No.3" was not a completely accurate representation of what he told the lawyer who prepared it. According to Longoria, he preferred that male employees unload the liquor delivery trucks and perform other manual tasks at Store No. 7337, but his preferences did not come into play when he hired Mitchell. The Court finds Longoria's explanation unpersuasive. Having expressed his preference on a number of occasions, and having admitted that while he was at the store, no female employee ever unloaded a liquor delivery truck, it would be unreasonable to believe that Longoria's bias did not playa part in his decision to hire Mitchell.
Having found direct evidence of discrimination, the Court must now examine Rite Aid's mixed-motives defense.
2. Rite Aid's Mixed-Motive Defense Although Rite Aid couches its argument in terms of pretext, it essentially argues that it would have made the same decision not to rehire Willi.ap1sI~gardless of her sex because (1) it
9

Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 10 of 12
believed she was physically unable to perfonn the job and (2) she had been involved in two disturbances at Store No. 7337.
The Court notes that Rite Aid's argument regarding its perception of Williams' inability to do the job is based in large part on Williams' applications for and receipt of supplemental security income and disability insurance benefits. However, Rite Aid was not aware of Williams' applications when it decided not to hire her. Thus, such evidence is irrelevant regarding Rite Aid's motivation for that decision. Rite Aid, however, presents other evidence that it believed Williams was physically unable to do the job: Longoria testified at trial that he did not believe that Williams was physically able to do the job because she was obese, often short of breath, and occasionally complained of back pain and other health prob1ems.6
Rite Aid also offers evidence that it would have made the same decision not to rehire Williams because of her behavior during and after her employment at Rite Aid. Specifically, Rite Aid alleges that it refused to rehire Williams because she caused two disturbances in Store No. 7337. On December 12, 1998, Williams told Bates that she must be "the pet" and accused Bates of sleeping with Longoria to keep her job. Soon after Mitchell was hired in January 1999, Williams loudly questioned him about his employment with Rite Aid and repeated her derogatory statements to Bates. A number of customers witnessed both of these disturbances. Additionally, Douglas Self, Barbara Wheaton, and Patricia Anne Jacobs, who all worked at Rite Aid with Williams, testified at trial that Williams was rude to customers and co-workers. The Court concludes that this evidence is sufficient to show that Rite Aid would not have lehired
6As noted above, the Court has ruled that the EEOC is estopped from denying that Williams was unable to work. Thus, Rite Aid's evidence regarding its perception of Williams' physical ability to do the job is uncontroverted.
10

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Williams regardless of her sex. Accordingly, the EEOC is precluded from recovering all but injunctive relief and costs.
C. Appropriate Relief "If the court finds that the respondent has intentionally engaged in or is intentionally
engaging in an unlawful employment practice ..., the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate ...." 42 U.S.c. § 2000e-5(g)(l). "Ordinarily, a court may not enjoin conduct that is neither threatened nor imminent." Walls v. Mississippi State Dept. ofPublic Welfare, 730 F.2d 306,325 (5th Cir. 1984) (citing Congress a/Racial Equality v. Douglas, 318 F.2d 95, 100 (5th Cir. 1963». "While the court's power to grant injunctive relief may survive discontinuance of the illegal conduct in order to prevent future wrongdoing, the necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility." Walls, 730 F.2d at 325 (quoting United States v. w,T. Grant Co., 345 U.S. 629, 633 (1953». Thus, to obtain the injunctive reliefthat it seeks, the EEOC must show that there is a cognizable danger that Rite Aid will in the future take sex into account in making an employment decision. The Court concludes that the EEOC has failed to do so.
The Court is satisfied that, regardless of what may have happened in the past, Longoria is well aware that his personal biases cannot be taken into account when making hiring decisions. Rite Aid has in place a discrimination prevention policy which reinforces through training and education the idea that the best person for the job should be hired, regardless of sex. Further, there is no evidence of a broad employment practice involving discrimination against females,
11

Case 3:00-cv-02238-RGJ-KLH Document 171 Filed 07/30/2002 Page 12 of 12
and Rite Aid presented evidence to the contrary.7 Under these circumstances, injunctive relief would be inappropriate. D. Rite Aid's Counterclaim
Rite Aid seeks attorney's fees in the event that it is found to be the prevailing party. Having found direct evidence that Rite Aid discriminated against Williams by taking her sex into account when it decided not to rehire her, the Court concludes that Rite Aid is not a prevailing party. Accordingly, Rite Aid cannot recover attorney's fees.
IlL Conclusion For the foregoing reasons, the Court finds that the EEOC has presented direct evidence - that Rite Aid engaged in an unlawful employment practice when it refused to rehire Williams based in part on her sex. Rite Aid has presented compelling evidence that it would have made the same decision not to rehire Williams regardless of her sex because it felt she was physically unable to do the job and because of her behavior during and after her employment with Rite Aid. Therefore, the EEOC is limited to recovering injunctive relief and costs. Because the Court concludes that the EEOC has failed to prove that a cognizable danger exists that Rite Aid will in the future take sex into account in making an employment decision, injunctive relief is inappropriate, and the Court, exercising its discretion, concludes that each party should bear its
ROBERTG. ES UNITED STATES DISTRICT JUDGE 7Since January of 1999, females have comprised eighty-three percent of Rite Aid's employees in the market encompassing Store No. 7337. 12

 
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U.S. District Court Western District of Louisiana (Monroe) CIVIL DOCKET FOR CASE #: 3:00-cv-02238-RGJ-KLH

CLOSED

E E O C v. Rite Aid Corp, et al

Date Filed: 09/29/2000

Assigned to: Judge Robert G James

Jury Demand: Defendant

Referred to: Magistrate Judge Karen L Hayes (DEACTIVATED) Nature of Suit: 442 Civil Rights: Jobs

Demand: $0

Jurisdiction: U.S. Government Plaintiff

Cause: 42:2000 Job Discrimination (Sex)

Plaintiff
Equal Employment Opportunity Commission

represented by Michelle T Butler E E O C (NO) 1555 Poydras St Ste 1900 New Orleans, LA 70112 504-589-6817 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith T Hill E E O C (HOU) 1919 Smith St Ste 700 Houston, TX 77002-8049 US 713-209-3320 Fax: 209-3381

Lillian M Thornton E E O C (NO) 1555 Poydras St Ste 1900 New Orleans, LA 70112 504-589-6817

Yancy A Carter Law Office of Yancy A Carter P O Box 6785 New Orleans, LA 70174 504-394-7004 Fax: 504-821-8256

V.
Defendant Rite Aid Corp TERMINATED: 12/06/2000

represented by George D Fagan Leake & Andersson 1100 Poydras St Ste 1700

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Defendant K & B Louisiana Corp doing business as Rite Aid Corp
V. Movant Yancy A Carter
Counter Claimant K & B Louisiana Corp doing business as Rite Aid Corp Counter Claimant Rite Aid Corp TERMINATED: 12/06/2000
V. Counter Defendant Equal Employment Opportunity Commission

New Orleans, LA 70163-1701 504-585-7500 Fax: 504-585-7775 Email: gfagan@leakeandersson.com TERMINATED: 12/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George D Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ginger K Deforest Ungarino & Eckert (MET) 3850 N Causeway Blvd Ste 1280 Metairie, LA 70002 504-836-7555 Fax: 504-836-7538
represented by Yancy A Carter 2642 Mercedes Blvd New Orleans, LA 70114 504-589-2701 PRO SE
represented by George D Fagan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George D Fagan (See above for address) TERMINATED: 12/06/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle T Butler (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith T Hill (See above for address)
Lillian M Thornton (See above for address)
Yancy A Carter (See above for address)

Date Filed 09/29/2000 09/29/2000 09/29/2000 11/16/2000 12/06/2000 12/27/2000
12/29/2000 12/29/2000 01/16/2001 01/18/2001 02/06/2001

#

Docket Text

Amount of fee $ 0/USA . (Gilmer, P) (Entered: 10/04/2000)
CASE ASSIGNED to Magistrate Judge James D Kirk for Discovery (Dean, S) (Entered: 10/06/2000)
1 COMPLAINT filed; jury demand (Dean, S) (Entered: 10/06/2000)
2 ANSWER to Complaint; jury demand and CNTERCLM by Rite Aid Corp against E E O C (Berry, D) (Entered: 11/16/2000)
3 NOTICE by K & B LA Corp to take deposition of Johnny L Williams on January 24, 2001 at 10:00 AM in Monroe, LA 71201 (Berry, D) (Entered: 12/06/2000)
4 MOTION by E E O C to amend [1-1] complaint with Proposed Order and Proposed Amended Complaint referred to Magistrate Judge James D Kirk (w/consent) (Berry, D) (Entered: 12/28/2000)
5 ORDER granting [4-1] motion to amend [1-1] complaint (signed by Magistrate Judge James D Kirk) NOE by: db (Berry, D) (Entered: 01/02/2001)
6 AMENDED COMPLAINT by E E O C; (Answer due 1/8/01 for K & B LA Corp) amending [1-1] complaint; jury demand (Berry, D) (Entered: 01/02/2001)
7 ANSWER by E E O C to [2-2] counter claim (Dean, S) (Entered: 01/16/2001)
8 ANSWER by K & B LA Corp to amended complaint; jury demand (Berry, D) (Entered: 01/18/2001)
9 SCHEDULING ORDER: Jury Trial set for 9:00AM on 10/1/01; Pretrial Conference for 1:30PM on 9/6/01; Pretrial order to be submitted on or before 5:00PM on 9/4/01; Joining of parties, amding of pleadings on 2/23/01; Witness list due 4/4/01; Pltf's expert info/rpts due 4/24/01; Dft's expert info/rpts due 5/24/01; Discovery due 5/24/01; Deadline for filing of motions 6/8/01; Expert depositions due 7/18/01; Deadline to prepare PT stips set for 8/15/01; Motions in limine due 8/22/01; Trial inst., interr, etc due 9/4/01; Trial depositions due 9/4/01 deadlines set before Judge G James (signed by Angine Carroll for Robert G James) NOE by: db (Berry, D) (Entered: 02/07/2001)

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02/12/2001 02/15/2001 02/15/2001 02/15/2001 02/26/2001 02/26/2001
02/26/2001 03/08/2001 03/16/2001
03/28/2001 03/30/2001
03/30/2001
03/30/2001

10 MOTION w/brief by K & B LA Corp for protective order with Proposed Order referred to Magistrate Judge James D Kirk (Berry, D) (Entered: 02/12/2001)
11 RESPONSE by E E O C in opposition to [10-1] motion for protective order (former employee) (Entered: 02/15/2001)
12 REPLY by K & B LA Corp to response to [10-1] motion for protective order (former employee) (Entered: 02/15/2001)
13 MEMORANDUM RULING granting [10-1] motion for protective order (signed by Magistrate Judge James D Kirk) NOE by: tw (former employee) (Entered: 02/15/2001)
14 MOTION w/brief by K & B LA Corp to compel and to traverse the EEOC's Responses to Interrogatories and Requests for Production of Documents WITH EXHIBITS (Berry, D) (Entered: 02/26/2001)
15 NOTICE OF SETTING: Motion day set on 5/3/01 for [14-1] motion to compel and [14-2] motion to traverse the EEOC's Responses to Interrogatories and Requests for Production of Documents before Magistrate Judge James D Kirk. NOE by: db (Berry, D) (Entered: 02/26/2001)
16 RESPONSE (entitled "Affidavit of George D Fagan") by K & B LA Corp to [13-1] order (Berry, D) (Entered: 02/26/2001)
17 MEMORANDUM by E E O C in opposition to [14-1] motion to compel, [14-2] motion to traverse the EEOC's Responses to Interrogatories and Requests for Production of Documents WITH EXHIBITS (Berry, D) (Entered: 03/08/2001)
18 ORDER: After review of the affidavit filed showing total time and expenses regarding the discovery matter, IT IS ORDERED that Yancy A Carter pay to defendant Rite Aid Corporation the sum of $1,820.00 which sum shall be paid no later than 3/30/01 (signed by Magistrate Judge James D Kirk) NOE by: tw (former employee) (Entered: 03/16/2001)
19 PRELIMINARY WITNESS LIST by E E O C (Berry, D) (Entered: 03/28/2001)
20 MOTION w/brief by E E O C to stay Magistrate Kirk's March 15, 2001 Order and/or to extend time within which EEOC can comply with the Order and appealing Magistrate's Ruling dated March 15,2001 for sanctions referred to Judge Robert G James (Berry, D) (Entered: 03/30/2001)
21 MOTION by E E O C to expedite consideration of [20-1] motion to stay Magistrate Kirk's March 15, 2001 Order, [20-2] motion to extend time within which EEOC can comply with the Order, [20-3] motion appealing Magistrate's Ruling dated March 15,2001 for sanctions with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 03/30/2001)
22 ORDER denying as moot [21-1] motion to expedite consideration of [20-1] motion to stay Magistrate Kirk's March 15, 2001 Order, [20-2] motion to extend time within which EEOC can comply with the Order, [20-3] motion appealing Magistrate's Ruling dated March 15,2001 for sanctions. Court denies [20-1] motion to stay Magistrate Kirk's March 15, 2001 Order, denies [20-2] motion to extend time within which EEOC can comply with the Order, denies [20-3] motion appealing Magistrate's Ruling dated March 15,2001 for sanctions and

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04/02/2001 04/03/2001
04/09/2001 04/09/2001 04/09/2001
04/11/2001 04/16/2001 04/19/2001 05/07/2001 05/11/2001 05/11/2001 05/17/2001 05/30/2001

Court affirms the Magistrate Judge's [18-1] order (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 04/02/2001)
23 WITNESS LIST by K & B LA Corp (Berry, D) (Entered: 04/02/2001)
24 PROPOSED ORDER Returned Unsigned re: [21-1] motion to expedite consideration of [20-1] motion to stay Magistrate Kirk's March 15, 2001 Order, [20-2] motion to extend time within which EEOC can comply with the Order, [20-3] motion appealing Magistrate's Ruling dated March 15,2001 for sanctions, [20-1] motion to stay Magistrate Kirk's March 15, 2001 Order, [20-2] motion to extend time within which EEOC can comply with the Order, [20-3] motion appealing Magistrate's Ruling dated March 15,2001 for sanctions. See Order dated 3/3/01. NOE by: db (Berry, D) (Entered: 04/03/2001)
25 MOTION w/brief by E E O C to certify Order as a Final Judgment with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 04/09/2001)
26 NOTICE OF APPEAL by Yancy A Carter from [22-1] entered on 3/30/01 by Judge Robert G James. Fee Status NOT PAID (Joffrion, B) (Entered: 04/09/2001)
TRANSMITTAL of Notice of Appeal and Certified Copy of Docket to USCA: [26-1] appeal NOE to Judge Robert G James, Courtroom Deputy and Attorneys: Yancy A Carter w/fee letter, George D Fagan, Keith T Hill, Michelle T Butler (Joffrion, B) (Entered: 04/09/2001)
27 ORDER denying [25-1] motion to certify Order as a Final Judgment. (signed by Judge Robert G James) NOE by: bp (Prest, B) (Entered: 04/11/2001)
NOTICE of Docketing ROA from USCA Re: [26-1] appeal USCA NUMBER: 01-30448 (Joffrion, B) (Entered: 04/16/2001)
USCA appeal fees received from Yancy A Carter regarding [26-1] appeal; Fee Status PAID, Filing fee $105.00, Receipt #95131; NOE by BKJ (Joffrion, B) (Entered: 04/25/2001)
28 JUDGMENT OF USCA (certified copy) Re: [26-1] appeal; pursuant to motion of appellant the appeal is dismissed. NOE to Judge Robert G James and Courtroom Deputy (Joffrion, B) (Entered: 05/07/2001)
29 MOTION w/brief by K & B LA Corp for protective order with Proposed Order referred to Magistrate Judge James D Kirk WITH EXHIBITS (Berry, D) (Entered: 05/11/2001)
30 MOTION by K & B LA Corp to expedite consideration of [29-1] motion for protective order with Proposed Order referred to Magistrate Judge James D Kirk (Berry, D) (Entered: 05/11/2001)
31 MEMORANDUM by E E O C in opposition to [29-1] motion for protective order (Berry, D) (Entered: 05/17/2001)
32 MINUTE ENTRY: granting [30-1] motion to expedite consideration of [29-1] motion for protective order, denying [29-1] motion for protective order (signed by Magistrate Judge James D Kirk) NOE by: tw (former employee) (Entered: 05/30/2001)

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05/30/2001 06/04/2001 06/07/2001 06/11/2001
06/12/2001 06/12/2001 06/18/2001
06/18/2001 06/18/2001
06/27/2001 06/27/2001 06/28/2001
07/05/2001
07/05/2001

Status conference held (former employee) (Entered: 05/30/2001)
33 MOTION by E E O C to amend [1-1] complaint with Proposed Order and Proposed Amended Complaint referred to Magistrate Judge James D Kirk (w/consent) (Berry, D) (Entered: 06/04/2001)
34 MOTION w/brief by K & B LA Corp to extend time for filing of dispositive motions with Proposed Order referred to Judge Robert G James (consent sought) (Berry, D) (Entered: 06/07/2001)
35 ORDER granting [34-1] motion to extend time for filing of dispositive motions reset scheduling order deadlines: Deadline for filing of all motions by 6/18/01 before Judge Robert G James (signed by Judge Robert G James) NOE by: dd (Dickerson, D) (Entered: 06/11/2001)
36 ORDER granting [33-1] motion to amend [1-1] complaint (signed by Magistrate Judge James D Kirk) NOE by: db (Berry, D) (Entered: 06/13/2001)
37 AMENDED COMPLAINT by E E O C, (Answer due 6/22/01 for K & B LA Corp) amending [1-1] complaint; jury demand (Berry, D) (Entered: 06/13/2001)
38 DEFICIENCY NOTICE to counsel for K & B LA Corp re: motion for leave to file memorandum in support of motion for summary judgment in excess of page limit submitted on 6/18/01. Reason: statement of facts is not an original. NOE by sem (McInnis, S) (Entered: 06/18/2001)
39 NOTICE by K & B LA Corp of Additional Counsel of Record (McInnis, S) (Entered: 06/19/2001)
40 MOTION by K & B LA Corp for leave to file memorandum exceeding page limit with Proposed Order, Proposed Motion for Summary Judgment and Proposed Statement of Facts referred to Judge Robert G James (held due to deficiency) (Berry, D) (Entered: 06/22/2001)
41 ORDER granting [40-1] motion for leave to file memorandum exceeding page limit (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 06/28/2001)
43 STATEMENT of material facts by K & B LA Corp regarding [42-1] motion for summary judgment as to Rule 56 of FRCP, [42-2] motion for partial summary judgment as the Court deems appropriate (Berry, D) (Entered: 06/28/2001)
42 MOTION w/brief by K & B LA Corp for summary judgment as to Rule 56 of FRCP and alternatively for partial summary judgment as the Court deems appropriate WITH EXHIBITS (Berry, D) Modified on 06/28/2001 (Entered: 06/28/2001)
44 NOTICE OF SETTING: Motion day set on 8/23/01 for [42-1] motion for summary judgment as to Rule 56 of FRCP and for [42-2] motion for partial summary judgment as the Court deems appropriate before Judge Robert G James. NOE by: db (Berry, D) (Entered: 07/05/2001)
45 ORDER denying as moot [14-1] motion to compel, denying as moot [14-2] motion to traverse the EEOC's Responses to Interrogatories and Requests for Production of Documents (signed by Magistrate Judge James D Kirk) NOE by:

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07/08/2001 07/20/2001 07/20/2001 08/16/2001 08/16/2001 08/17/2001 08/17/2001 08/17/2001 08/21/2001 08/21/2001 09/19/2001

mll (Leleux, M) (Entered: 07/05/2001)
167 MINUTES OF COURT from 1st Day of Jury Trial. Joint Stipulations filed (by Judge Robert G James) Court Reporter: Richard Williams NOE by: db (Berry, D) (Entered: 07/18/2002)
46 MEMORANDUM by E E O C in opposition to [42-1] motion for summary judgment as to Rule 56 of FRCP, [42-2] motion for partial summary judgment as the Court deems appropriate WITH EXHIBITS (McInnis, S) Modified on 07/20/2001 (Entered: 07/20/2001)
47 STATEMENT of material facts by E E O C regarding [42-1] motion for summary judgment as to Rule 56 of FRCP, [42-2] motion for partial summary judgment as the Court deems appropriate (McInnis, S) (Entered: 07/20/2001)
48 UNOPPOSED MOTION by K & B LA Corp to continue October 1, 2001 Trial Date with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 08/16/2001)
49 MOTION by K & B LA Corp for oral argument re: its motion for summary judgment set for 8/23/01 with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 08/16/2001)
50 ORDER granting [48-1] motion to continue October 1, 2001 Trial Date. Clerk of Court shall reset the matter for a jury trial to take place on the Court's regularly available jury trial date in 2002 (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 08/20/2001)
51 ORDER denying [49-1] motion for oral argument re: its motion for summary judgment set for 8/23/01 (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 08/20/2001)
Deadline updated; Jury Trial is continued to be reset on the Court's next regularly available jury trial date in 2002 before Judge Robert G James (Berry, D) (Entered: 08/20/2001)
52 MEMORANDUM RULING granting in part, denying in part [42-1] motion for summary judgment as to Rule 56 of FRCP, granting in part, denying in part [42-2] motion for partial summary judgment as the Court deems appropriate (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 08/23/2001)
53 ORDER granting in part, denying in part [42-1] motion for summary judgment as to Rule 56 of FRCP, granting in part, denying in part [42-2] motion for partial summary judgment as the Court deems appropriate (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 08/23/2001)
54 SCHEDULING ORDER: Jury Trial set for 9:00 5/6/02; Pretrial Conference for 11:30 4/4/02; Pretrial order to be submitted on or before 5:00 4/1/02; amend/joinder 9/21/01; Witness list due 10/31/01; Pltf's expert info/rpts due 11/20/01; Dft's expert info/rpts due 12/20/01; Discovery due 11/20/01; Discovery II due 12/20/01; Dispositive Motions 1/4/02; Expert depositions due 2/13/02; Motions in limine due 3/20/02; deadlines set before Judge Robert G James (signed by Deputy Clerk Angie Carroll) NOE by: cww (Whidden, C) (Entered: 09/21/2001)

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09/26/2001
09/26/2001 09/26/2001
10/11/2001
10/11/2001 10/24/2001 10/25/2001 11/05/2001
11/08/2001 11/08/2001 11/13/2001 11/15/2001
11/15/2001
11/27/2001
11/29/2001
01/14/2002

55 SECOND MOTION w/brief by K & B LA Corp for summary judgment as to Rule 56 of FRCP WITH EXHIBITS (Berry, D) Modified on 09/26/2001 (Entered: 09/26/2001)
56 STATEMENT of material facts by K & B LA Corp regarding [55-1] motion for summary judgment as to Rule 56 of FRCP (Berry, D) (Entered: 09/26/2001)
57 NOTICE OF SETTING: Motion day set on 11/22/01 for [55-1] motion for summary judgment as to Rule 56 of FRCP before Judge Robert G James. NOE by: db (Berry, D) (Entered: 09/26/2001)
58 MEMORANDUM by E E O C in opposition to [55-1] motion for summary judgment as to Rule 56 of FRCP WITH EXHIBITS (Berry, D) Modified on 10/11/2001 (Entered: 10/11/2001)
59 STATEMENT of material facts by E E O C regarding [55-1] motion for summary judgment as to Rule 56 of FRCP (Berry, D) (Entered: 10/11/2001)
60 WITNESS LIST by E E O C (Berry, D) (Entered: 10/24/2001)
61 WITNESS LIST by K & B LA Corp (Berry, D) (Entered: 10/25/2001)
62 MOTION by K & B LA Corp for leave to file Reply Brief with Proposed Order and Proposed Reply Brief referred to Judge Robert G James (Berry, D) (Entered: 11/06/2001)
63 ORDER granting [62-1] motion for leave to file Reply Brief (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 11/09/2001)
64 REPLY by K & B LA Corp to response to [55-1] motion for summary judgment as to Rule 56 of FRCP (Berry, D) (Entered: 11/09/2001)
65 AMENDED WITNESS LIST by E E O C (Joffrion, B) (Entered: 11/14/2001)
66 MEMORANDUM RULING denying [55-1] motion for summary judgment as to Rule 56 of FRCP (signed by Judge Robert G James) NOE by: dd (Dickerson, D) (Entered: 11/15/2001)
67 ORDER denying [55-1] motion for summary judgment as to Rule 56 of FRCP (signed by Judge Robert G James) NOE by: dd (Dickerson, D) (Entered: 11/15/2001)
68 SETTLEMENT CONFERENCE ORDER; set settlement conference for 9:00 12/12/01 before Magistrate Judge James D Kirk . (signed by Magistrate James D Kirk) NOE by: sjd (Dean, S) (Entered: 11/28/2001)
69 MINUTE ENTRY: Parties are ordered to mediate this matter befor Magistrate Judge James D Kirk on 12/12/01. Set mediation for 12/12/01 before Magistrate Judge James D Kirk (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 11/30/2001)
70 UNOPPOSED MOTION by E E O C for Rule 16(a) pretrial conference with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 01/14/2002)

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01/17/2002 01/17/2002 01/18/2002 01/22/2002 01/24/2002 02/04/2002 02/04/2002
02/05/2002 02/05/2002 02/06/2002
02/07/2002 02/07/2002 02/07/2002

71 EXPEDITED MOTION by E E O C to extend discovery deadline with Proposed Order referred to Magistrate Judge James D Kirk (w/consent) (Berry, D) Modified on 01/17/2002 (Entered: 01/17/2002)
72 RESPONSE by K & B LA Corp to [70-1] motion for Rule 16(a) pretrial conference (Berry, D) (Entered: 01/17/2002)
73 ORDER granting [71-1] motion to extend discovery deadline. Reset discovery due 2/20/02 (signed by Magistrate Judge James D Kirk) NOE by: tw (former employee) (Entered: 01/18/2002)
74 ORDER granting [70-1] motion for Rule 16(a) pretrial conference. Set pretrial conference for 1:00 1/23/02 before Judge Robert G James (signed by Judge Robert G James) NOE by: dd (McInnis, S) (Entered: 01/23/2002)
75 MINUTE ENTRY: A Rule 16(a) conference was held by telephone on 1/23/02. Agreed that parties will continue preparation for trial (signed by Judge Robert G James) NOE by fax: dd (Berry, D) (Entered: 01/25/2002)
81 MOTION by K & B LA Corp for protective order regarding the deposition of Craig M Cousins and for sanctions with Proposed Order referred to Magistrate Judge James D Kirk WITH EXHIBITS (original document not received - copy from Magistrate Kirk certified as original) (Berry, D) (Entered: 02/11/2002)
82 MOTION by K & B LA Corp to expedite consideration of [81-1] motion for protective order regarding the deposition of Craig M Cousins, [81-2] motion for sanctions with Proposed Order referred to Magistrate Judge James D Kirk (original not received by docket clerk - copy from Magistrate James D Kirk certified as original) (Berry, D) (Entered: 02/11/2002)
76 MOTION by E E O C to quash notice of deposition and/or for protective order WITH EXHIBITS referred to Magistrate Judge James D Kirk (Dean, S) (Entered: 02/05/2002)
77 MOTION by E E O C to expedite consideration of [76-1] motion to quash notice of deposition, [76-2] motion for protective order referred to Magistrate Judge James D Kirk (Dean, S) (Entered: 02/05/2002)
78 MEMORANDUM by E E O C in opposition to Rite Aid's Motion for Protective Order Regarding the Deposition of Craig M Cousins Esquire and its Request for an Award of Sanctions Against the EEOC WITH EXHIBITS (do not have filed Rite Aid's Motion as of 2/5/02) (Berry, D) Modified on 02/07/2002 (Entered: 02/06/2002)
79 MEMORANDUM by K & B LA Corp in opposition to [76-1] motion to quash notice of deposition, [76-2] motion for protective order (Berry, D) (Entered: 02/07/2002)
80 MINUTE ENTRY: The undersigned having participated in mediation of the reference matter hereby recuses himself from this case (signed by Magistrate Judge James D Kirk) NOE by: db (Berry, D) (Entered: 02/08/2002)
83 MINUTE ENTRY: Telephone conference was held on 2/6/02 concerning expedited motions. Court grants [77-1] motion to expedite consideration of [76-1] motion to quash notice of deposition. Court ordered that the deposition be

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02/11/2002 02/11/2002 02/12/2002 02/15/2002
02/27/2002 03/07/2002 03/13/2002 03/13/2002
03/13/2002

postponed until a review is made by the Court re [76-2] motion for protective order and [76-1] to quash notice of deposition. The EEOC must provide those documents with a privilege log specifically referred to each document on which privilege is claimed within 10 days of the date of this order. Court grants [82-1] motion to expedite consideration of [81-1] motion for protective order regarding the deposition of Craig M Cousins and Court grants [81-1] motion for protective order regarding the deposition of Craig M Cousins (signed by Magistrate Judge James D Kirk) NOE by: db (Berry, D) (Entered: 02/12/2002)
84 MOTION by E E O C to review and to vacate [83-1] Magistrate Judge Kirk's ruling on 2/6/02 referred to Judge Robert G James (Berry, D) (Entered: 02/12/2002)
85 MOTION by E E O C to expedite consideration of [84-1] motion to review, [84-2] motion to vacate [83-1] Magistrate Judge Kirk's ruling on 2/6/02 with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 02/12/2002)
CASE reassigned to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 02/12/2002)
86 ORDER denying as moot [85-1] motion to expedite consideration of [84-1] motion to review, [84-2] motion to vacate [83-1] Magistrate Judge Kirk's ruling on 2/6/02. Court denies [84-1] motion to review and denies [84-2] motion to vacate [83-1] Magistrate Judge Kirk's ruling on 2/6/02. Court affirms Magistrate Judge's [83-1] order (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 02/19/2002)
87 RESPONSE (entitled "EEOC'S Privileged Log in Response to Rite Aid's 30(b)(5) Request for Production of Documents") by E E O C to [83-1] order (Berry, D) (Entered: 02/27/2002)
88 MEMORANDUM RULING granting [76-1] motion to quash notice of deposition, granting [76-2] motion for protective order (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) (Entered: 03/08/2002)
89 MOTION w/brief by K & B LA Corp for reconsideration of [88-1] Magistrate Hayes' March 6, 2002 ruling and order on the EEOC's Motion to Quash and Motion for Protective Order (Berry, D) (Entered: 03/13/2002)
90 MOTION by K & B LA Corp to expedite consideration of [89-1] motion for reconsideration of [88-1] Magistrate Hayes' March 6, 2002 ruling and order on the EEOC's Motion to Quash and Motion for Protective Order with Proposed Order referred to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 03/13/2002)
91 MEMORANDUM RULING AND ORDER granting [90-1] motion to expedite consideration of [89-1] motion for reconsideration of Magistrate Hayes' March 6, 2002 ruling and order on the EEOC's Motion to Quash and Motion for Protective Order and granting [89-1] motion for reconsideration of [88-1] Magistrate Hayes' March 6, 2002 ruling and order on the EEOC's Motion to Quash and Motion for Protective Order. The 30(b)(6) deposition of a representative of the EEOC may take place and the EEOC may preserve its objection to any questions asked but the witness must answer the question except as to any documents as to which the

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03/18/2002
03/19/2002 03/19/2002 03/20/2002 03/20/2002 03/20/2002 03/21/2002 03/21/2002 03/21/2002 03/21/2002

court has upheld the EEOC's claim of privilege (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) (Entered: 03/14/2002)
92 PROPOSED ORDER Returned Unsigned re: [90-1] motion to expedite consideration of [89-1] motion for reconsideration of [88-1] Magistrate Hayes' March 6, 2002 ruling and order on the EEOC's Motion to Quash and Motion for Protective Order, [89-1] motion for reconsideration of [88-1] Magistrate Hayes' March 6, 2002 ruling and order on the EEOC's Motion to Quash and Motion for Protective Order. See Document #91. NOE by: db (Berry, D) (Entered: 03/18/2002)
93 MOTION w/brief by K & B LA Corp appealing Magistrate's Ruling (document entitled "Rite Aid's Objections to Certain Aspects of Magistrate Hayes' March 6, 2002 and March 13, 2002 rulings and orders on the EEOC's Motion to Quash and Motion for Protective Order") (Berry, D) (Entered: 03/20/2002)
94 MOTION by K & B LA Corp to expedite consideration of [93-1] motion appealing Magistrate's Ruling with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 03/20/2002)
95 MOTION w/brief by E E O C in limine as to excluding any and all testimony or exhibits that relate to the Charging Party's application, receipt and allocation of social security benefits from the trial in this matter (Berry, D) (Entered: 03/20/2002)
96 NOTICE OF SETTING for Pretrial Conference: Motion day set for 11:30AM on 4/4/02 for [95-1] motion in limine as to excluding any and all testimony or exhibits that relate to the Charging Party's application, receipt and allocation of social security benefits from the trial in this matter before Judge Robert G James. NOE by: db (Berry, D) (Entered: 03/20/2002)
101 ORDER granting [94-1] motion to expedite consideration of [93-1] motion appealing Magistrate's Ruling. Counsel for EEOC shall file any response or opposition to Motion for Reconsideration no later than 3/28/02. Response to motion reset to 3/28/02 for [93-1] motion appealing Magistrate's Ruling (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 03/22/2002)
97 MOTION w/opposition by E E O C to amend [1-1] complaint with Proposed Order referred to Magistrate Judge Karen L Hayes along with Motion to Expedite (Dean, S) Modified on 03/21/2002 (Entered: 03/21/2002)
98 MOTION by E E O C to expedite consideration of [97-1] motion to amend [1-1] complaint with Proposed Order referred to Magistrate Judge Karen L Hayes (Dean, S) Modified on 03/21/2002 (Entered: 03/21/2002)
99 MOTION by K & B LA Corp in limine prohibiting E E O C from presenting certain testimony and evidence referred to Judge G James to be considered at pretrial conference (Dean, S) (Entered: 03/21/2002)
100 NOTICE OF SETTING for Pretrial Conference: Motion day set for 4/4/02 for [99-1] motion in limine prohibiting E E O C from presenting certain testimony and evidence before Judge Robert G James. NOE by: sjd (Dean, S) (Entered: 03/21/2002)

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03/22/2002 03/26/2002
03/26/2002
03/26/2002 03/27/2002 03/28/2002 03/28/2002 03/28/2002
03/28/2002 03/29/2002 03/29/2002

102 MEMORANDUM by E E O C in opposition to [93-1] motion appealing Magistrate's Ruling WITH EXHIBITS (Berry, D) (Entered: 03/22/2002)
103 MOTION by K & B LA Corp in limine as to excluding EEOC from presenting testimony and evidence re EEOC's request for conciliation and Rite Aid's response; any matters previously dismissed by the Court's prior rulings; and any claim that Mrs Johnny L Williams was able to be rehired by Rite Aid with reasonable accommodations referred to Judge Robert G James to be considered at pretrial conference (Berry, D) (Entered: 03/26/2002)
104 NOTICE OF SETTING for Pretrial Conference: Motion day set for 4/4/02 for [103-1] motion in limine as to excluding EEOC from presenting testimony and evidence re EEOC's request for conciliation and Rite Aid's response; any matters previously dismissed by the Court's prior rulings; and any claim that Mrs Johnny L Williams was able to be rehired by Rite Aid with reasonable accommodations before Judge Robert G James. NOE by: db (Berry, D) (Entered: 03/26/2002)
106 ORDER granting [98-1] motion to expedite consideration of [97-1] motion to amend [1-1] complaint. Response to motion set to 3/28/02 for [97-1] motion to amend [1-1] complaint (signed by Magistrate Judge Karen L Hayes) NOE by fax: dd (Berry, D) (Entered: 03/27/2002)
105 MEMORANDUM by K & B LA Corp in opposition to [95-1] motion in limine as to excluding any and all testimony or exhibits that relate to the Charging Party's application, receipt and allocation of social security benefits from the trial in this matter (Berry, D) (Entered: 03/27/2002)
107 SECOND MOTION w/brief by E E O C to quash a 30(b)(6) Notice of Deposition and for second protective order and for sanctions referred to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 03/28/2002)
108 MOTION w/incorporated memorandum by E E O C to expedite consideration of [107-1] motion to quash a 30(b)(6) Notice of Deposition, [107-2] motion for second protective order, [107-3] motion for sanctions with Proposed Order referred to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 03/28/2002)
109 MEMORANDUM by E E O C in opposition to [103-1] motion in limine as to excluding EEOC from presenting testimony and evidence re EEOC's request for conciliation and Rite Aid's response; any matters previously dismissed by the Court's prior rulings; and any claim that Mrs Johnny L Williams was able to be rehired by Rite Aid with reasonable accommodations, [99-1] motion in limine prohibiting E E O C from presenting certain testimony and evidence WITH EXHIBITS (Berry, D) (Entered: 03/28/2002)
110 MEMORANDUM by K & B LA Corp in partial opposition to [97-1] motion to amend [1-1] complaint (Berry, D) (Entered: 03/28/2002)
117 MEMORANDUM RULING denying [93-1] motion appealing Magistrate's Ruling and affirming [91-1] order, affirming [88-1] order (signed by Judge Robert G James) NOE by fax: dd (Berry, D) (Entered: 04/03/2002)
118 JUDGMENT: For the reasons set forth in the Court's [117-1] order, Court denies [93-1] motion appealing Magistrate's Ruling and affirms [91-1] Magistrate Hayes'order, affirming Magistrate Hayes' order (signed by Judge Robert G

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04/01/2002 04/01/2002 04/01/2002 04/01/2002 04/01/2002 04/01/2002
04/02/2002 04/02/2002 04/02/2002 04/03/2002

James) (Berry, D) (Entered: 04/03/2002)
111 MOTION w/incorporated memorandum by E E O C to strike witnesses and strike items no 19-23 of Rite Aid's Statement of Contested Facts from the Pre-Trial Order with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 04/01/2002)
112 NOTICE OF SETTING: referring [111-1] motion to strike witnesses and strike items no 19-23 of Rite Aid's Statement of Contested Facts from the Pre-Trial Order to Judge Robert G. James in chambers due to trial setting of May 6, 2002 NOE by: db (Berry, D) (Entered: 04/01/2002)
113 PRETRIAL MEMORANDUM REGARDING CONTESTED ISSUES OF LAW, DISCOVERY ISSUES, MOTIONS IN LIMINE AND USE OF TRIAL DEPOSITIONS by K & B LA Corp (Berry, D) (Entered: 04/01/2002)
114 JOINT PROPOSED JURY INSTRUCTIONS by E E O C, K & B LA Corp (Berry, D) (Entered: 04/01/2002)
115 MEMORANDUM by K & B LA Corp in opposition to [107-1] motion to quash a 30(b)(6) Notice of Deposition, [107-2] motion for second protective order, [107-3] motion for sanctions (Berry, D) (Entered: 04/01/2002)
116 MINUTE ENTRY: A telephone hearing on plaintiff's second [107-1] motion to quash a 30(b)(6) Notice of Deposition, [107-2] motion for second protective order. Court noted that plaintiff states that there are no additional documents which have not been produced which are responsive to defendant's request for production. Defendant was instructed to ask plaintiff whether any additional documents existed on the record and received negative answer. Regarding proposed stipulations, defendants may question the EEOC regarding any facts which it may have showing that there are actual disputes on the issues. Defendant may not question plaintiff regarding trial strategy, legal opinions or other mattters which infringe upon attorney work product. Court ORDERED attorneys to submit a revised pre-trial order to the court by 4/3/02. Notice of compliance due for 4/3/02 (signed by Magistrate Judge Karen L Hayes) NOE by fax: dd (Berry, D) (Entered: 04/03/2002)
120 MEMORANDUM RULING granting [97-1] motion to amend [1-1] complaint. Because there remains no issue to be tried by a jury the action will be tried by the Court (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 04/03/2002)
121 ORDER granting [97-1] motion to amend [1-1] complaint. FURTHER ORDERED that this action will be tried by the Court because there remains no issue to be tried by a jury (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 04/03/2002)
122 AMENDED COMPLAINT by E E O C, (Answer due 4/12/02 for K & B LA Corp) amending [37-1] amended complaint, [6-1] amended complaint, [1-1] complaint (Berry, D) (Entered: 04/03/2002)
119 PROPOSED ORDER Returned Unsigned re: [108-1] motion to expedite consideration of [107-1] motion to quash a 30(b)(6) Notice of Deposition, [107-2] motion for second protective order, [107-3] motion for sanctions, [107-1]

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04/03/2002 04/04/2002 04/04/2002
04/05/2002
04/09/2002 04/09/2002
04/10/2002 04/17/2002
04/19/2002 04/19/2002

motion to quash a 30(b)(6) Notice of Deposition, [107-2] motion for second protective order, [107-3] motion for sanctions. See Minute Entry dated 4/1/02. NOE by: dd (Berry, D) (Entered: 04/03/2002)
134 MOTION by K & B LA Corp to expedite consideration of [133-1] motion for protective order regarding the 4/25/02 deposition of Maude Coleman noticed by the E E O C with Proposed Order referred to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 04/23/2002)
Pre-trial conference held (Berry, D) (Entered: 04/08/2002)
124 MINUTE ENTRY: A mediation was held on 4/4/02 at 9:30 AM. Parties agreed to recess at 11:00AM and Mr Fagan was ordered to report back to Magistrate Judge Hayes on or before 3:00 PM on 4/8/02 on his client's position regarding the pending proposal. Set notice of compliance due for 4/8/02 (signed by Magistrate Judge Karen L Hayes) NOE by: db (Berry, D) (Entered: 04/08/2002)
123 MINUTE ENTRY: Pre-trial conference held on 4/4/02. Proposed findings of fact and conclusions of law are due on 4/26/02. Proposed joint "verdict" form are due on 4/26/02; bench book and CDs and bar codes are due 4/26/02; may call witnesses are to be converted to will call by 4/26/02. Set notice of compliance due for 4/26/02 . Pre-trial order was reviewed and the parties were instructed to revise the contested facts and the contested issues of law and file an amended pre-trial order on or before 4/12/02. Set brief due for 4/12/02 (signed by Magistrate Judge Karen L Hayes) NOE by: db (Berry, D) (Entered: 04/08/2002)
125 MOTION w/brief by K & B LA Corp for reconsideration of April 2, 2002 [121-1] order striking the jury and [66-1] order dated 11/15/01 denying Rite Aid's Second Motin for Summary Judgment (Berry, D) (Entered: 04/09/2002)
126 NOTICE OF SETTING: referring [125-1] motion for reconsideration of April 2, 2002 [121-1] order striking the jury and [66-1] order dated 11/15/01 denying Rite Aid's Second Motion for Summary Judgment to Judge Robert G James in chambers due to trial setting of May 6, 2002. NOE by: db (Berry, D) (Entered: 04/09/2002)
127 ORDER denying [111-1] motion to strike witnesses and strike items no 19-23 of Rite Aid's Statement of Contested Facts from the Pre-Trial Order (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 04/11/2002)
128 MOTION by K & B LA Corp for leave to file Supplemental Memorandum and Inadvertently Omitted Exhibits in Support of Rite Aid's Motion for Reconsideration with Proposed Order and Proposed Supplemental Memorandum referred to Judge Robert G James WITH EXHIBITS (Berry, D) (Entered: 04/17/2002)
129 MOTION w/brief by K & B LA Corp to compel completion of EEOC'S FRCP Rule 30(b)(6) Deposition WITH EXHIBITS (Berry, D) (Entered: 04/19/2002)
130 MOTION by K & B LA Corp to expedite consideration of [129-1] motion to compel completion of EEOC'S FRCP Rule 30(b)(6) Deposition with Proposed Order referred to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 04/19/2002)

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04/19/2002 04/19/2002 04/19/2002 04/23/2002 04/23/2002
04/24/2002 04/25/2002 04/25/2002
04/26/2002 04/26/2002 04/26/2002

131 ORDER granting [128-1] motion for leave to file Supplemental Memorandum and Inadvertently Omitted Exhibits in Support of Rite Aid's Motion for Reconsideration (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 04/22/2002)
132 SUPPLEMENTAL memorandum by K & B LA Corp in support of [125-1] motion for reconsideration of April 2, 2002 [121-1] order striking the jury and [66-1] order dated 11/15/01 denying Rite Aid's Second Motin for Summary Judgment WITH EXHIBITS (Berry, D) (Entered: 04/22/2002)
135 MINUTE ENTRY: resetting Jury Trial for 9:00AM on 7/8/02 before Judge Robert G James . All other deadlines contained in the Court's Scheduling Order shall remain in effect (signed by Judge Robert G James) NOE by: db (Berry, D) (Entered: 04/23/2002)
133 MOTION w/brief by K & B LA Corp for protective order regarding the 4/25/02 deposition of Maude Coleman noticed by the E E O C with Proposed Order referred to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 04/23/2002)
136 ORDER denying [130-1] motion to expedite consideration of [129-1] motion to compel completion of EEOC'S FRCP Rule 30(b)(6) Deposition. Trial has been continued to 7/8/02. EEOC shall file any response or opposition to the[129-1] motion to compel completion of EEOC'S FRCP Rule 30(b)(6) Deposition in accordance with the local rules of this court (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) (Entered: 04/24/2002)
137 MEMORANDUM by E E O C in opposition to [125-1] motion for reconsideration of April 2, 2002 [121-1] order striking the jury and [66-1] order dated 11/15/01 denying Rite Aid's Second Motion for Summary Judgment WITH EXHIBITS (Berry, D) (Entered: 04/24/2002)
138 MOTION by E E O C for Lillian M Thornton to enroll as co-counsel with Proposed Order referred to Magistrate Judge Karen L Hayes (Berry, D) (Entered: 04/25/2002)
139 MINUTE ENTRY: Rule 16 conference was held on 4/24/02. With the continuance of the trial in this matter there is no need to depose the witness referenced in defendant's motion to quash. The Court denies as moot [107-1] motion to quash a 30(b)(6) Notice of Deposition. The deadlines set in [123-3] order dated 4/5/02 are hereby UPSET and RESET to 6/28/02 (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) (Entered: 04/26/2002)
140 ORDER granting [138-1] motion for Lillian M Thornton to enroll as co-counse; added Lillian M Thornton as attorney (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) (Entered: 04/29/2002)
141 ORDER denying as moot the [133-1] motion for protective order regarding the 4/25/02 deposition of Maude Coleman noticed by the E E O C (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) (Entered: 04/29/2002)
142 ORDER denying as moot the [134-1] motion to expedite consideration of [133-1] motion for protective order regarding the 4/25/02 deposition of Maude Coleman noticed by the E E O C (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) (Entered: 04/29/2002)

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05/07/2002 05/07/2002 05/09/2002 05/10/2002 05/10/2002 05/15/2002 05/15/2002 05/22/2002 05/28/2002
06/03/2002 06/03/2002 06/12/2002

143 MOTION by E E O C to amend [122-1] amended complaint, [37-1] amended complaint, [6-1] amended complaint, [1-1] complaint with Proposed Order and Proposed Fourth Amended Complaint referred to Magistrate Judge Karen L Hayes (w/consent) (Berry, D) (Entered: 05/07/2002)
144 MEMORANDUM by E E O C in opposition to [129-1] motion to compel completion of EEOC'S FRCP Rule 30(b)(6) Deposition WITH EXHIBITS (Berry, D) (Entered: 05/07/2002)
145 MOTION by K & B LA Corp for leave to file Reply Brief in Response to EEOC's Memorandum in Opposition to Rite Aid's Motion for Reconsideration with Proposed Order and Proposed Reply Brief referred to Judge Robert G James (Berry, D) (Entered: 05/09/2002)
146 ORDER granting [143-1] motion to amend [122-1] amended complaint, [37-1] amended complaint, [6-1] amended complaint, [1-1] complaint (signed by Magistrate Judge Karen L Hayes) NOE by: dd (Berry, D) Modified on 05/13/2002 (Entered: 05/13/2002)
147 AMENDED COMPLAINT by E E O C, (Answer due 5/20/02 for K & B LA Corp) amending [122-1] amended complaint, [37-1] amended complaint, [6-1] amended complaint, [1-1] complaint (Berry, D) (Entered: 05/13/2002)
148 ORDER granting [145-1] motion for leave to file Reply Brief in Response to EEOC's Memorandum in Opposition to Rite Aid's Motion for Reconsideration (signed by Judge Robert G James) NOE by: dd (Lundy, N) (Entered: 05/16/2002)
149 REPLY BRIEF by K & B LA Corp to response to [125-1] motion for reconsideration of April 2, 2002 [121-1] order striking the jury and [66-1] order dated 11/15/01 denying Rite Aid's Second Motion for Summary Judgment (Lundy, N) (Entered: 05/16/2002)
150 ANSWER by K & B LA Corp to third and fourth amended complaint; jury demand (Berry, D) (Entered: 05/22/2002)
151 MOTION by E E O C for leave to file Reply to Rite Aid's May 9, 2002 Reply Brief Which the Court Allowed Rite Aid to File on May 15, 2002 with Proposed Order and Proposed Opposition Memorandum in Response to Rite Aid's Reply Brief in Response to EEOC's Opposition to Rite Aid's Motion for Reconsideration referred to Judge Robert G James (Berry, D) (Entered: 05/28/2002)
152 ORDER granting [151-1] motion for leave to file Reply to Rite Aid's May 9, 2002 Reply Brief Which the Court Allowed Rite Aid to File on May 15, 2002 (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 06/04/2002)
153 MEMORANDUM by E E O C in opposition to [149-1] response reply by Rite Aide in Response to EEOC'S Opposition to Rite Aid's Motion for Reconsideration (Berry, D) (Entered: 06/04/2002)
154 ORDER denying [125-1] motion for reconsideration of April 2, 2002 [121-1] order striking the jury and [66-1] order dated 11/15/01 denying Rite Aid's Second Motin for Summary Judgment (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 06/13/2002)

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06/14/2002 06/17/2002
06/17/2002
06/17/2002 06/17/2002 06/25/2002 06/28/2002 06/28/2002 06/28/2002 06/28/2002

155 ORDER denying [129-1] motion to compel completion of EEOC'S FRCP Rule 30(b)(6) Deposition (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 06/17/2002)
156 MEMORANDUM RULING denying [103-1] motion in limine as to excluding EEOC from presenting testimony and evidence re EEOC's request for conciliation and Rite Aid's response; any matters previously dismissed by the Court's prior rulings; and any claim that Mrs Johnny L Williams was able to be rehired by Rite Aid with reasonable accommodations, granting in part, denying in part [99-1] motion in limine prohibiting E E O C from presenting certain testimony and evidence (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 06/18/2002)
157 ORDERI: For the reasons set forth in the [156-1] order Court grants in part, denies in part [99-1] motion in limine prohibiting E E O C from presenting testimony and evidence and denes [103-1] motion in limine as to excluding EEOC from presenting testimony and evidence re EEOC's request for conciliation and Rite Aid's response; matters previously dismissed by the Court's prior rulings; and any claim that Mrs Johnny L Williams was able to be rehired by Rite Aid with reasonable accommodations (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 06/18/2002)
158 MEMORANDUM RULING granting in part, denying in part [95-1] motion in limine as to excluding any and all testimony or exhibits that relate to the Charging Party's application, receipt and allocation of social security benefits from the trial in this matter (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 06/18/2002)
159 ORDER: For reasons set forth in [158-1] order Court grants in part, denies in part [95-1] motion in limine as to excluding any and all testimony or exhibits that relate to the Charging Party's application, receipt and allocation of social security benefits from the trial in this matter (signed by Judge Robert G James) NOE by: dd (Berry, D) (Entered: 06/18/2002)
160 MINUTE ENTRY: On 6/25/02 Court received a letter from defendant requesting a telephone conference. Request is denied. All issues of law that the parties wish the Court to consider should be fully briefed in the Proposed Findings of Fact and Conclusions of Law due 6/28/02 (signed by Judge Robert G James) NOE by fax: dd (Berry, D) (Entered: 06/26/2002)
161 FINAL WITNESS LIST by K & B LA Corp (Berry, D) (Entered: 06/28/2002)
161 FINAL EXHIBIT LIST by K & B LA Corp (Berry, D) Modified on 06/28/2002 (Entered: 06/28/2002)
162 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by K & B LA Corp (Berry, D) (Entered: 06/28/2002)
163 MINUTE ENTRY: The Court issues this minute entry to avoid confusion regarding the questions to be decided at trial. It is the Court's view that the U S Equal Employment Opportunity Commission is entitled to seek injunctive and other equitable relief basd on K & B Louisiana Coporation d/b/a Rite Aid's allegedly disriminatory decision not to rehire Johnny L Williams (signed by Judge Robert G James) NOE by fax: dd (Berry, D) (Entered: 07/01/2002)

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07/03/2002 07/03/2002 07/08/2002 07/08/2002 07/08/2002 07/08/2002 07/09/2002 07/09/2002 07/09/2002 07/15/2002 07/30/2002
07/30/2002
07/30/2002 08/05/2002 08/05/2002

164 FINAL EXHIBIT LIST by E E O C (Berry, D) (Entered: 07/03/2002)
164 FINAL WITNESS LIST by E E O C (Berry, D) (Entered: 07/03/2002)
165 RESPONSE (entitled "Trial Memorandum Regarding the Court's June 28, 2002 Minute Entry") by K & B LA Corp to [163-1] order (Berry, D) (Entered: 07/08/2002)
Jury trial held (Berry, D) (Entered: 07/18/2002)
168 JOINT STIPULATIONS filed into evidence by E E O C, K & B LA Corp (Berry, D) Modified on 07/18/2002 (Entered: 07/18/2002)
167 MINUTES OF COURT from 1st Day of Jury Trial. Joint Stipulation filed (by Judge Robert G James) Court Reporter: Richard Williams. NOE by: db (Berry, D) (Entered: 07/18/2002)
169 MINUTES OF COURT from 2nd Day of Jury Trial. Case taken under advisement (by Judge Robert G James) Court Reporter: Richard Williams NOE by: db (Berry, D) (Entered: 07/18/2002)
Jury trial held (Berry, D) (Entered: 07/18/2002)
170 JOINT EXHIBIT LIST by E E O C, K & B LA Corp (Berry, D) (Entered: 07/18/2002)
166 SECOND SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by K & B LA Corp (Berry, D) (Entered: 07/15/2002)
171 OPINION stating findings of fact and conclusions of law. Court finds that the EEOC has presented direct evidence that Rite Aid engaged in an unlawful employment practice when it refused to rehire Williams based in part on her sex. The Court concludes that the EEOC has failed to prove that a cognizable danger exists that Rite Aid will in the future take sex into account in making an employment decision, injunctive relief is inappropriate and the Court exercising its discretion concludes that each party should bear its own costs (signed by Judge Robert G James) NOE by fax: dd (Berry, D) (Entered: 08/05/2002)
172 JUDGMENT for E E O C against K & B LA Corp on its claim against K & B for engaging in an unlawful employment practice in refusing to rehire Ms Johnny L Williams because of her sex. ORDERED that no relief be awarded. ORDERED that judgment be entered in favor of EEOC as counter-defendant and against Rite Aid as counter-claimant on Rite Aid's claim for attorney's fees. ORDERED that each party shall bear its own costs (signed by Judge Robert G James) (Berry, D) (Entered: 08/05/2002)
Case closed (Berry, D) (Entered: 08/05/2002)
173 MOTION w/brief by K & B LA Corp for new trial , to amend or alter [172-1] judgment order and for any other relief relating to the Court's ruling regarding costs in the 7/30/02 opinion and judgment (Berry, D) (Entered: 08/05/2002)
174 NOTICE OF SETTING: Motion day set on 10/24/02 for [173-1] motion for new trial, for [173-2] motion to amend or alter [172-1] judgment order and for [173-3] motion for any other relief relating to the Court's ruling regarding costs in the 7/30/02 opinion and judgment before Judge Robert G James. NOE by: db (Berry,

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08/12/2002 08/15/2002
08/29/2002 08/29/2002 08/29/2002 09/05/2002 09/09/2002 09/09/2002 09/11/2002 09/13/2002

D) (Entered: 08/05/2002)
175 UNOPPOSED MOTION w/incorporated brief by E E O C to extend time to file opposition to Rite Aid's Motion for New Trial, Motion to Alter or Amend the Judgment and Motion for Any Other Relief Relating to the Court's Ruling Regarding Costs in the 7/30/02 Opinion and Judment with Proposed Order referred to Judge Robert G James (Berry, D) (Entered: 08/13/2002)
176 ORDER granting [175-1] motion to extend time to file opposition to Rite Aid's Motion for New Trial, Motion to Alter or Amend the Judgment and Motion for Any Other Relief Relating to the Court's Ruling Regarding Costs in the 7/30/02 Opinion and Judment. Response to motion reset to 8/29/02 for [173-1] motion for new trial, for [173-2] motion to amend or alter [172-1] judgment and for [173-3] motion for any other relief relating to the Court's ruling regarding costs in the 7/30/02 opinion and judgment (signed by Judge Robert G James) NOE by manual fax: dd (Berry, D) Modified on 08/16/2002 (Entered: 08/16/2002)
177 DEFICIENCY NOTICE to counsel for E E O C re: Motion for Leave Requesting the Court to Alter/and Or Amend the Judgment Issued on July 30, 2202 Relating to Costs and/or Injunctive Relief submitted on August 29, 2002 Reason: Needs original signature of counsel. NOE by: db (Berry, D) (Entered: 08/29/2002)
179 MOTION w/brief by E E O C for leave requesting th Court to alter/and or amend the judgment issued on 7/30/02 relating to costs and/or injunctive relief with Proposed Order referred to Judge Robert G James (held due to deficiency) (Berry, D) (Entered: 09/11/2002)
180 RESPONSE by E E O C to [173-1] motion for new trial, [173-2] motion to amend or alter [172-1] judgment order, [173-3] motion for any other relief relating to the Court's ruling regarding costs in the 7/30/02 opinion and judgment (held due to deficiency) (Berry, D) (Entered: 09/11/2002)
178 ORDER denying [173-1] motion for new trial, denying [173-2] motion to amend or alter [172-1] judgment order, denying [173-3] motion for any other relief relating to the Court's ruling regarding costs in the 7/30/02 opinion and judgment. (signed by Judge Robert G James) NOE by: dd (Dickerson, D) (Entered: 09/05/2002)
181 MEMORANDUM by K & B LA Corp in opposition to [179-1] motion for leave requesting th Court to alter/and or amend the judgment issued on 7/30/02 relating to costs and/or injunctive relief (Joffrion, B) (Entered: 09/13/2002)
182 NOTICE OF APPEAL by K & B LA Corp from Orders and Rulings entered by Judge Robert G James and Magistrate Judge Karen Hayes. Fee Status PAID, Receipt #103791; Appeal transcript order due on 9/23/02 (Joffrion, B) (Entered: 09/13/2002)
180 MEMORANDUM by E E O C in support of [179-1] motion for leave requesting th Court to alter/and or amend the judgment issued on 7/30/02 relating to costs and/or injunctive relief (held due to deficiency) (Berry, D) Modified on 09/11/2002 (Entered: 09/11/2002)
TRANSMITTAL of Notice of Appeal and Certified Copy of Docket to USCA: [182-1] appeal NOE to Judge Robert G James, Court Reporter, Courtroom

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09/16/2002 09/17/2002 09/30/2002 09/30/2002 09/30/2002
10/02/2002 10/02/2002 10/07/2002 10/10/2002 10/16/2002 10/22/2002
11/12/2003

Deputy and Attorneys: Yancy A Carter, George D Fagan w/transcript order form, Ginger K Deforest, Lillian M Thornton, Keith T Hill, Michelle T Butler, Yancey A Carter (Joffrion, B) (Entered: 09/13/2002)
184 ORDER denying [179-1] motion for leave requesting the Court to alter/and or amend the judgment issued on 7/30/02 relating to costs and/or injunctive relief (signed by Judge Robert G James) NOE by: sem (McInnis, S) (Entered: 09/17/2002)
183 TRANSCRIPT REQUESTED regarding [182-1] appeal by K & B LA Corp for proceedings of trial on 7/8-9/02 before Judge Robert G James; Ct reporter: Richard Williams; Transcript due 10/17/02 (Joffrion, B) (Entered: 09/17/2002)
185 MOTION by E E O C for Yancy A Carter to withdraw as counsel of record with Proposed Order referred to Magistrate Judge Karen L Hayes (Joffrion, B) (Entered: 09/30/2002)
186 NOTICE OF APPEAL by E E O C from [172-1] judgment order entered on 8/5/02 by Judge Robert G James. Fee Status NOT REQUIRED; Appeal transcript order due on 10/10/02 (Joffrion, B) (Entered: 09/30/2002)
TRANSMITTAL of Notice of Appeal and Certified Copy of Docket to USCA: [186-1] appeal NOE to Judge Robert G James, Court Reporter, Courtroom Deputy and Attorneys: Yancy A Carter, George D Fagan, Ginger K Deforest, Lillian M Thornton, Keith T Hill, Michelle T Butler w/transcript order form, Yancey A Carter (Joffrion, B) (Entered: 09/30/2002)
NOTICE of Docketing ROA from USCA Re: [182-1] appeal USCA NUMBER: 02-30960 (Joffrion, B) (Entered: 10/02/2002)
187 ORDER granting [185-1] motion for Yancy A Carter to withdraw as counsel of record (signed by Magistrate Judge Karen L Hayes) NOE by: db (Berry, D) (Entered: 10/03/2002)
188 TRANSCRIPT REQUESTED regarding [186-1] appeal by E E O C for proceedings of Trial on 7/8-9/02 before Judge Robert G James; Ct reporter: Richard Williams; Transcript due 11/6/02 (Joffrion, B) (Entered: 10/07/2002)
NOTICE of Docketing ROA from USCA Re: [186-1] appeal USCA NUMBER: 02-30960 (Joffrion, B) (Entered: 10/10/2002)
189 TRANSCRIPT filed re: [186-1] appeal, [182-1] appeal for dates of 7/8-9/02 before Judge Robert G James; Appeal record due 10/31/02. (Court Reporter: Richard Williams; 2 Volumes; 351 Pages) (Joffrion, B) (Entered: 10/18/2002)
TRANSMITTED record on appeal to U.S. Court of Appeals: [186-1] appeal, [182-1] appeal; consisting of 8 Volumes of Record, 3 Containers of Exhibits, 2 Volumes of Transcript; NOE to Judge Robert G James, Court Reporter, Courtroom Deputy Attorneys: Yancy A Carter, George D Fagan, Ginger K Deforest, Lillian M Thornton, Keith T Hill, Michelle T Butler, Yancey A Carter (Joffrion, B) (Entered: 10/22/2002)
190 JUDGMENT/MANDATE OF USCA (certified copy) Re: [186-1] appeal, [182-1] appeal; that the judgment of the district court is affirmed. NOE to Judge Robert G James and Deputy (Joffrion, B) (Entered: 11/12/2003)

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11/12/2003 04/05/2007

RECORD on appeal returned from U.S. Court of Appeals: [186-1] appeal, [182-1] appeal, [26-1] appeal consisting of 8 Volumes of Record, 1 box of exhibits, 2 Volumes of Transcript; Record placed in the closed section Shreveport Clerk's office. (Joffrion, B) (Entered: 11/12/2003)
191 CERTIFICATE of Clerk to Destroy Exhibits. (crt,Dean, S) (Entered: 04/10/2007)

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 USCA5 Docket Sheet for 02-30960

http://pacer.ca5.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=02-30960&...

General Docket
US Court of Appeals for the Fifth Circuit

Court of Appeals Docket #: 02-30960 Nsuit: 1442 Civil Rights: Jobs EEOC v. K & B Louisiana Corp Appeal from: Western District of Louisiana, Monroe

Filed: 9/20/02

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0536-3 : 00-CV-2238 Ordering Judge: Robert G James, US District Judge Court Reporter: Richard D Williams, US Court Reporter Date Filed: 9/29/00 Date order/judgment: 8/5/02 Date NOA filed: 9/9/02 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: Paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
01-30448 Date filed: 4/11/01 Date disposed: 5/2/01 Disposition: dism

Current cases:

Lead

Member

Start

End

Cross-appeal:

02-30960 02-31001 10/8/02

Docket as of November 10, 2003 10:04 pm

Page 1

02-30960 EEOC v. K & B Louisiana Corp

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Counter Defendant - Appellee-CrossAppellant

Paula R Bruner FAX 202-663-7090 202-663-4731 Suite 7044 [COR LD NTC gvt] Equal Employment Opportunity Commission 1801 L Street NW Washington, DC 20507

v.

K & B LOUISIANA CORP dba Rite Aid Corp
Defendant - Counter Claimant - Appellant-CrossAppellee

George Davidson Fagan FAX 504-585-7775 504-585-7500 Suite 1700 [COR LD NTC ret] Leake & Andersson 1100 Poydras Street Energy Centre New Orleans, LA 70163

Docket as of November 10, 2003 10:04 pm

Page 2

02-30960 EEOC v. K & B Louisiana Corp EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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Plaintiff - Counter Defendant Appellee-Cross-Appellant

v.

K & B LOUISIANA CORP, doing business as Rite Aid Corp

Defendant - Counter Claimant Appellant-Cross-Appellee

Docket as of November 10, 2003 10:04 pm

Page 3

02-30960 EEOC v. K & B Louisiana Corp

9/20/02

Civil rights case docketed. NOA filed by Appellant K & B Louisiana Corp. [02-30960] (rjd) [02-30960]

10/1/02

Transcript order received on 9/17/02 from Appellant K & B Louisiana Corp for Court Reporter Richard D Williams processed. Date of Hearing: 7/8 thru 7/9/02 (Trial). [02-30960] Transcript Order ddl satisfied. Ct. Reporter Acknowledgment due on 10/16/02 for Richard D Williams. (pok) [02-30960]

10/4/02

Transcript order acknowledgment received on 9/27/02 from Court Reporter Richard D Williams processed. Estimated pages: 350 Date Financial Arrangements Made: 9/24/02 [02-30960] Ct. Reporter Acknowledgement ddl satisfied. Transcript due on 10/16/02 for Richard D Williams. Ct. Reporter Discount Date is 11/25/02 for Richard D Williams. (pok) [02-30960]

10/8/02

Civil rights case docketed. NOA filed by Appellee-Cross-Appellant EEOC in 02-31001. [02-31001] (jtr) [02-31001]

10/8/02

Cross appeal docketed. [02-30960, 02-31001] (jtr) [02-30960 02-31001]

10/10/02

Appearance form filed by George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001. [02-30960, 02-31001] (nfd) [02-30960 02-31001]

10/11/02

Appearance form filed by Paula R Bruner for Appellee-Cross-Appellant EEOC in 02-30960, Paula R Bruner for Appellee-Cross-Appellant EEOC in 02-31001. [02-30960, 02-31001] (nfd) [02-30960 02-31001]

10/22/02

Transcript filed in district court by Court Reporter Richard D Williams in 02-30960, Court Reporter Richard D Williams in 02-31001 on 10/16/02. [02-30960, 02-31001] Transcript ddl satisfied. Ct. Reporter Discount Date canceled. ROA due on 10/31/02 in 02-30960. (pok) [02-30960 02-31001]

10/23/02

Record on appeal filed. Vol(s) of Pleadings: 8 Vol(s) of Transcripts: 2 Exhibits: 1 box. [02-30960, 02-31001] ROA ddl satisfied. (jca) [02-30960 02-31001]

10/25/02

Briefing notice issued. [02-30960, 02-31001] A/Pet's Brief due on 12/4/02 for K & B Louisiana Corp in 02-30960, for K & B Louisiana Corp in 02-31001. (jca) [02-30960 02-31001]

Docket as of November 10, 2003 10:04 pm

Page 4

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02-30960 EEOC v. K & B Louisiana Corp

10/30/02

Record on appeal released to attorney George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001. Volumes: 10 Exhibits: 1 Box. [02-30960, 02-31001] (lrc) [02-30960 02-31001]

12/4/02

Extension granted by phone until: 12/09/02 to file brief for Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001. [02-30960, 02-31001] (nfd) [02-30960 02-31001]

12/4/02

Confirmation letter filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001 confirming an extension of time to and including 12/09/02 for filing brief. [02-30960, 02-31001] A/Pet's Brief ddl updated to 12/9/02 for K & B Louisiana Corp in 02-30960, for K & B Louisiana Corp in 02-31001. (nfd) [02-30960 02-31001]

12/9/02

Record on appeal returned to 5CCA. Volumes: 10 Exhibits: 1 box [02-30960, 02-31001] (nfd) [02-30960 02-31001]

12/9/02

Record excerpts filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001 # of copies: 4 Sufficient [Y/N]: y. [02-30960, 02-31001] (sdh) [02-30960 02-31001]

12/9/02

Appellant's Brief filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001. Copies of Brief: 7 # of pages: 57 Word count: xxxx Date of COS: 12/09/02 Disk Provided [Y/N]: y Sufficient [Y/N]: n EXCESS PAGES. [4050090-1] [02-30960, 02-31001] A/Pet's Brief ddl satisfied. Sufficient Brief due on 12/30/02 for K & B Louisiana Corp in 02-30960, for K & B Louisiana Corp in 02-31001. (sdh) [02-30960 02-31001]

12/20/02

Unopposed motion filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001 to file brief in excess of the word limitation but not to exceed 14,119 words. [4051445-1] Date of COS: 12/20/02 Sufficient [Y/N]: y [02-30960, 02-31001] (dsb) [02-30960 02-31001]

12/20/02

CLERK Order filed granting appellant's unopposed motion to file brief in excess of the word limitation, not to exceed 14,119 words [4051445-1] in 02-30960, 02-31001 Copies to counsel. [02-30960, 02-31001] (dsb) [02-30960 02-31001]

Docket as of November 10, 2003 10:04 pm

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12/20/02

Brief made sufficient by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001 Replacement Disk Provided [Y/N]: n [02-30960, 02-31001] Sufficient Brief ddl satisfied. XA/Pet Brief ddl updated to 1/21/03 for EEOC in 02-30960, for EEOC in 02-31001. (dsb) [02-30960 02-31001]

1/14/03

Record on appeal released to attorney Paula R Bruner for Appellee-Cross-Appellant EEOC in 02-30960, Paula R Bruner for Appellee-Cross-Appellant EEOC in 02-31001. Volumes: 10 Exhibits: 1 box. [02-30960, 02-31001] (kkf)

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1/22/03

Unopposed motion filed by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001 to extend time to file appellee-cross-appellant's brief until [4079270-1] Date of COS: 01/15/03 Sufficient [Y/N]: Y [02-30960, 02-31001] (nfd) [02-30960 02-31001]

1/22/03

CLERK Order filed granting appellee-cross-appellant's unopposed motion to extend time to file Appellee-Cross Appellant Brief to and including January 28, 2003. [4079270-1] XA/Pet Brief ddl updated to 1/28/03 for EEOC in 02-30960, for EEOC in 02-31001. in 02-30960, 02-31001 Copies to all counsel. [02-30960, 02-31001] (nfd) [02-30960 02-31001]

2/3/03

Record on appeal returned to 5CCA. Volumes: 10 Exhibits: 1 box [02-30960, 02-31001] (nfd) [02-30960 02-31001]

2/3/03

The attorney Keith Thomas Hill for EEOC in 02-30960, attorney Keith Thomas Hill for EEOC in 02-31001 not participating in case. [02-30960, 02-31001] (sep) [02-30960 02-31001]

2/3/03

Cross Appellant's Brief filed by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001. Copies of Brief: 7 # of pages: 64 Word count: 15,794 Date of COS: 1/28/03 Disk Provided [Y/N]: Y Sufficient [Y/N]: N, excess pages (motion pending). [4092807-1] [02-30960, 02-31001] XA/Pet Brief ddl satisfied. Sufficient Brief due on 2/18/03 for EEOC in 02-30960, for EEOC in 02-31001. (sep) [02-30960 02-31001]

2/3/03

Record excerpts filed by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001 # of copies: 4 Sufficient [Y/N]: Y. [02-30960, 02-31001] (sep) [02-30960 02-31001]

2/3/03

Unopposed motion filed by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001 to file brief in excess of the word count limitation but not to exceed 15,794 words. [4094042-1] Date of COS: 01/28/03 Sufficient [Y/N]: Y [02-30960, 02-31001] (nfd)

Docket as of November 10, 2003 10:04 pm

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2/5/03

Record on appeal released to attorney George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001. Volumes: 10 Exhibits: 1 box. [02-30960, 02-31001] (dsb) [02-30960 02-31001]

2/7/03

CLERK Order filed granting appellee-cross-appellant's unopposed motion to file brief in excess of the word count limitation [4094042-1] in 02-30960, 02-31001 Copies to all counsel. [02-30960, 02-31001] (nfd) [02-30960 02-31001]

2/7/03

Brief made sufficient by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001 [02-30960, 02-31001] Sufficient Brief ddl satisfied. XE/Res Brief ddl updated to 3/10/03 for K & B Louisiana Corp in 02-30960, for K & B Louisiana Corp in 02-31001. (nfd) [02-30960 02-31001]

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2/14/03

Motion filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001 to strike portions of record excerpts filed by EEOC [4102631-1], to strike portions of brief filed by appellee-cross-appellant EEOC. Response/Opposition due on 3/2/03 in 02-30960, in 02-31001. Date of COS: 2/14/03 Sufficient [Y/N]: Y [02-30960, 02-31001] (SUBMIT TO SCREENING JUDGE AND PANEL) (cnf) [02-30960 02-31001]

2/17/03

Motion filed by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001 to file corrected appendix/record excerpts [4132907-1] Response/Opposition due on 2/27/03 in 02-30960, in 02-31001. Date of COS: 2/11/03 Sufficient [Y/N]: Y [02-30960, 02-31001] (SUBMIT TO SCREENING JUDGE AND PANEL) (pok) [02-30960 02-31001]

2/27/03

Response/opposition filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001, Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960 to motion to file corrected Appendix/Record Excerpts [4132907-1] by Appellee-Cross-ApEEOC, EEOC in 02-31001, motion to file corrected Appendix/Record Excerpts [4132907-1] by Appellee-Cross-ApEEOC, EEOC Response/Opposition ddl satisfied. Reply to Resp/Opp due on 3/10/03 in 02-31001, in 02-30960. in 02-30960 Date of COS: 2/27/03 Sufficient [Y/N]: Y . [4133033-1] [02-31001, 02-30960] (pok) [02-30960 02-31001]

Docket as of November 10, 2003 10:04 pm

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3/3/03

Response/opposition filed by Appellee-Cross-Appellant EEOC in 02-31001, Appellee-Cross-Appellant EEOC in 02-30960 to motion to strike appendix [4102631-1] by Appellant-Cross-AK & B Louisiana Corp, K & B Louisiana Corp in 02-31001, motion to strike portion of brief [4102631-2] by Appellant-Cross-AK & B Louisiana Corp, K & B Louisiana Corp in 02-31001, motion to strike appendix [4102631-1] by Appellant-Cross-AK & B Louisiana Corp, K & B Louisiana Corp in 02-30960, motion to strike portion of brief [4102631-2] by Appellant-Cross-AK & B Louisiana Corp, K & B Louisiana Corp Response/Opposition ddl satisfied. Reply to Resp/Opp due on 3/10/03 in 02-31001, in 02-30960. in 02-30960 Date of COS: 2/27/03 Sufficient [Y/N]: Y. [4132870-1] [02-31001, 02-30960] (pok) [02-30960 02-31001]

3/10/03

Cross Appellee's Brief filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001. Copies of Brief: 7 # of pages: 23 Date of COS: 3/10/03 Disk Provided [Y/N]: Y Sufficient [Y/N]: Y. [4128946-1] [02-30960, 02-31001] XE/Res brief ddl satisfied. XA/Pet Reply Brief due on 3/24/03 for EEOC in 02-30960, for EEOC in 02-31001. (tdb) [02-30960 02-31001]

3/10/03

Record on appeal requested from George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001. [02-30960, 02-31001] Miscellaneous due on 3/27/03 for K & B Louisiana Corp in 02-30960, for K & B Louisiana Corp in 02-31001. (tdb) [02-30960 02-31001]

3/17/03

Record on appeal returned to 5CCA. Volumes: 10 Exhibits: 1 box [02-30960, 02-31001] Miscellaneous ddl satisfied. (jmm) [02-30960 02-31001]

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3/26/03

Cross Appellant's Reply Brief filed by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001. Copies of Brief: 7 # of pages: 19 Word count: 4,452 Date of COS: 3/24/03 Disk Provided [Y/N]: Y Sufficient [Y/N]: Y. [4139710-1] [02-30960, 02-31001] XA/Pet Reply Brief ddl satisfied. (mts) [02-30960 02-31001]

Docket as of November 10, 2003 10:04 pm

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4/11/03

COURT Order - the motion of appellant-cross-appellee to strike portions of the brief filed by appellee-cross-appellant is CARRIED WITH THE CASE. IT IS FURTHER ORDERED that the motion of appellant-crossappellee to strike portions of the record excerpts filed by appellee-cross-appellant is CARRIED WITH THE CASE. IT IS FURTHER ORDERED that the motion of appellee-cross-appellant to file corrected appendix/record excerpts is CARRIED WITH THE CASE. [4102631-1], [4102631-2], [4132907-1] in 02-30960, 02-31001 (EHJ) Copies to all counsel. [02-30960, 02-31001] (nfd) [02-30960 02-31001]

5/20/03

Case tentatively calendared for oral argument Week of: 08/04/03. [02-30960, 02-31001] (gam) [02-30960 02-31001]

5/21/03

Tentative calendar changed from week of 08/04/03 to week of 09/01/03. With Argument? y [02-30960, 02-31001] (gam) [02-30960 02-31001]

6/30/03

Supplemental authorities (FRAP 28(j)) filed by Appellee-Cross-Appellant EEOC in 02-30960, Appellee-Cross-Appellant EEOC in 02-31001 [4237439-1] [02-30960, 02-31001] (nfd) [02-30960 02-31001]

7/25/03

Case calendared for oral argument. 02-31001] (vlb) [02-30960 02-31001]

[02-30960,

8/26/03

Supplemental authorities (FRAP 28(j)) filed by Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001 [4294227-1] . [02-30960, 02-31001] (vlb) [02-30960 02-31001]

9/5/03

Oral argument heard. Case argued by George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-30960, Paula R Bruner for Appellee-Cross-Appellant EEOC in 02-30960, George Davidson Fagan for Appellant-Cross-Appellee K & B Louisiana Corp in 02-31001, Paula R Bruner for Appellee-Cross-Appellant EEOC in 02-31001 [02-30960, 02-31001] (vlb) [02-30960 02-31001]

9/16/03

COURT Order filed granting appellee's motion to file corrected Appendix/Record Excerpts [4132907-1] in 02-30960, 02-31001, denying appellant's motion to strike appendix [4102631-1] in 02-30960, 02-31001, denying appellant's motion to strike portion of brief [4102631-2] in 02-30960, 02-31001 (JES) Copies to all counsel. [02-30960, 02-31001] (jma) [02-30960 02-31001]

9/16/03

Opinion filed. Mandate pull date is 11/7/03 in 02-30960, in 02-31001. [02-30960, 02-31001] (jma) [02-30960 02-31001]

9/16/03

Judgment entered and filed. [02-30960, 02-31001] (jma) [02-30960 02-31001]

Docket as of November 10, 2003 10:04 pm

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9/16/03

Costs taxed - each party to bear its own costs on appeal. Copies to counsel. [4610626-1] [02-30960, 02-31001] (jma) [02-30960 02-31001]

11/10/03

Mandate issued. Approved BOC Issued (Y/N)?: N [02-30960, 02-31001] Mandate pull date satisfied. (mts) [02-30960 02-31001]

11/10/03

Record on appeal returned to USDC. Volumes: 10 Exhibits: 1 box. [02-30960, 02-31001] (mts) [02-30960 02-31001]

Docket as of November 10, 2003 10:04 pm

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 E.E.O.C. v. K&B Louisiana Corp., 75 Fed.Appx. 285 (2003)

75 Fed.Appx. 285 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fifth Circuit Rules 28.7, 47.5.3, 47.5.4. (Find CTA5 Rule 28 and Find CTA5
Rule 47) United States Court of Appeals,
Fifth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Counter
Defendant-Appellee-Cross-Appellant, v.
K&B LOUISIANA CORPORATION, Doing Business as Rite Aid Corporation, Defendant-Counter
Claimant-Appellant-Cross-Appellee.
No. 02-30960. | Sept. 16, 2003.

Appeals from the United States District Court for the Western District of Louisiana. m 00-CV-2238.

Attorneys and Law Firms

*286 Paula R. Bruner, Washington, DC, for Plaintiff-Counter-Defendant-Appellee-Cross-Appellant.

George Davidson Fagan, Leake & Andersson, New

Orleans,

LA,

for

Defendant-Counter-Claimant-Appellant-Cross-Appellee.

Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.

Opinion

PER CURIAM.*

*

Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not

precedent except under the limited circumstances set

forth in 5TH CIR. R. 47.5.4.

The EEOC sued, alleging that K&B Louisiana Corporation engaged in unlawful discrimination for failing to rehire Johnny Williams on the basis of her sex. After a bench trial, the court ruled that K&B had engaged in an unlawfulemployment practice, refused injunctive relief, and ordered each side to bear its own costs and attorney’s fees. K&B appeals on various grounds, including its assertion that there was no direct evidence of discrimination; K&B also seeks fees and costs. The EEOC cross-appeals the decision not to award injunctive relief.
We have read the briefs and pertinent portions of the record and have heard the arguments of counsel, and have consulted the applicable caselaw. We find no reversible error. There was certainly direct evidence of sex-based discrimination, including an admission by K&B’s manager that he preferred to hire men for a particular post. Consequently, the EEOC did not have to prove that Williams was qualified. The district court was well within its discretion in declining injunctive relief. The court’s refusal to shift costs or attorneys fees is a fair resolution of this matter, which badly needs to be put to rest.
The judgment is AFFIRMED.
Parallel Citations
2003 WL 22135597 (C.A.5 (La.))
	  

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