• •

Mary Jo O'Neill Az #005924 C. Emanuel Smith Ms #7424 Sally C. Shanley AZ.# 012251 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5032
Attorneys for Plaintiff

29 SEP 03 t.:110: 40
DISF;lCT OF iiT ;\H

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Equal Employment Opportunity Commission,
Plaintiff, vs.
Body Firm Aerobics, Inc., d/b/a Gold's Gym,
Defendant.

) ) )
~ COMPLAINT AND JURY TRIAL
) DEMAND
) ) Judge J. Thomas Greene ) DECK TYPE: Civil ) DATE STAMP: 09/29/2003 @ 10:50:00 ) CASE NUMBER: 2:03CV00846 JTG

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

NATURE OF ACTION

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

the Civil Rights Act of 1991 to correct unlawful employment practices on the

bases of sex, pregnancy and retaliation and to provide appropriate relief to

Andrea Liender and a class of females who were adversely affected by such

practices. Ms. Liender and other female employees were discriminated against

by Defendant when they were sexually harassed and subjected to gender-based

harassment. In addition, Ms. Liender was retaliated against because she

• •
opposed the harassment and as a result, the conditions of her employment were made so intolerable that she was forced to resign. The Commission also alleges that Defendant discriminated against another female employee because of her sex and pregnancy by demoting her and subjecting her to adverse terms and conditions of employment because of her pregnancy. As a result of the discrimination, the conditions of employment were made so intolerable, this employee was forced to resign.
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 Section 102 of the Civil Rights Act of 1991,42 U.S.C. §1981a. 2. The employment practices alleged to be unlawful were, and are now being committed within the jurisdiction of the United States District Court for the District of Utah, Central Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly
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authorized to bring this action by Sections 706(f)(1) and (3) and 707 of Title VII,
42 U.S.C. §§ 2000e-5(f)(1) and (3) and 2000e-6.
4. At all relevant times, defendant Body Firm Aerobics, Inc., d/b/a Gold's Gym (Defendant or Gold's Gym) has continuously been a Utah corporation dOing business in the State of Utah and the city of Orem and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections
701(b), (g) and (h) otTitie VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Andrea Liender filed a charge with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least November 1999, Defendant has engaged in unlawful employment practices at its Orem, Utah facility, in violation of Section 703(a) of
Title VII, 42 U.S.C. § 2000e-2(a), subjecting Ms. Liender and a class of female
employees to a hostile work environment due to sexual harassment and genderbased harassment. The sexual and gender-based harassment included but is not limited to:
a. referring to the female employees as "little girl", "bitch" or "super hot
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• •
chicks" b. making provocative comments about female employees' clothing, c. telling female employees they should wear more revealing clothing to
make more sales ("show more cleavage") and d. making sexual comments about female employees' and customers'
bodies ("if she'd diet, she'd have a really nice ass", "hot babes" and references to "boobs"and "tits"). 8. Since at least February 2001, Defendant has engaged in unlawful retaliatory practices in violation of Section 704(a) ofTitle VII, 42 U.S.C. § 2000e3(a). Defendant's retaliatory conduct included but was not limited to finding fault with Ms. Liender's work performance and telling other employees to stay away from her. This retaliation resulted in making the conditions of employment so intolerable that a reasonable person in Ms. Liender's place would have felt compelled to resign her employment. Ms. Liender was compelled to resign, resulting in a constructive discharge. 9. Since at least May 2001, Defendant has engaged in unlawful employment practices at its Orem, Utah facility, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), by discriminating against a female employee because of her pregnancy by demoting her, cutting her pay and hours and subjecting her to adverse terms and conditions of employment. These conditions of employment
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• •
were so intolerable that a reasonable person in that employee's position would have felt compelled to resign her employment resign her employment. This employee was compelled to resign, resulting in a constructive discharge. 10. The effect of the practices complained of in paragraphs 7-9 above has been to deprive Ms. Liender and a class of females of equal employment opportunities and otherwise adversely affect their status as employees because of their sex and in retaliation for opposing practices made unlawful by Title VII. 11. The unlawful employment practices complained of in paragraphs 7-9 above were and are intentional. 12. The unlawful employment practices complained of in paragraphs 7-9 were done with malice or with reckless indifference to the federally protected rights of Ms. Liender and a class of females.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, their officers, successors, assigns, and all persons in active concert or participation with them from engaging in sexual harassment, retaliation and any other employment practice which discriminates on the basis of sex, pregnancy or retaliation. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for women and those
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---

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

• •
who oppose unlawful employment discrimination, and which eradicate the effects of their past and present unlawful employment practices.
C. Order Defendant to make whole Ms. Liender and a class of females by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of their unlawful employment practices including, but not limited to, their rightful place reinstatement.
D. Order Defendant to make whole Ms. Liender and a class of females, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, in amounts to be determined at trial.
E. Order Defendant to make whole Ms. Liender and a class of females by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraphs 7-9 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial.
F. Order Defendant to pay Ms. Liender and a class of females punitive damages for their malicious and/or reckless conduct, described in paragraphs 7-9 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in
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• •

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.
RESPECTFULLY SUBMITTED this Z,(o1'Vlday of September, 3003.

Paul M. Warner United States Attorney
LetA-lA.A- [Vi /'lott.V", -:;,v....-
Carlie Christensen Civil Chief

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

UNITED STATES ATTORNEY 185 S. State #400 Salt Lake City, Utah 84111 (801) 325-3243 Associated Local Counsel for Plaintiff

C. Emanuel Smith Supervisory Trial Attorney

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

• •
saiIYC@ianley Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012 (602) 640-5032 Attorneys for Plaintiff
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 WOOD CRAPO LLC Mary Anne Q. Wood #3539 Kathryn O. Balmforth #5659 60 E. South Temple, Suite 500 Salt Lake City, Utah 84111 Telephone: (801) 366-6060
BRIAN C. HARRISON, P.C. Brian C. Harrison #1388 3651 North 100 East, Suite 300 Provo, Utah 84604 Telephone: (801) 375-7700

FILED
It:S DISTRICT COURT

RECEIVED
~,., ... L

ZOOb APR 21 A IQ: 2l.i

OFFICE OF

DISTRICT OF UTAH JUDGE. lENA CAMPBELL

IlY:. _ _.
DEPUTY CLERK

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

ANDREA LIENDER,

)

)

Plaintiff-Intervenor,

)

!)

v.

. )

)

BODY FIRM AEROBICS, INC., d/b/a

)

GOLD'S GYM,

)

)

Defendant.

)

ORDER REGARDING EXPERT DEPOSITIONAND EXPERT REPORTS
Civil No. 2:03-CV-00846 TC
Judge Tena Campbell Magistrate Judge Samuel Alba

Based upon the stipulation of the parties and good cause appearing therefore, the Conrt rules as follows:
I. Plaintiff and Plaintiff-Intervenor will take the deposition of David Cherrington on May 3, 2006, beginning at 11 :00 a.m.

2. Plaintiff and Plaintiff-Intervenor will file any responsive expert report no later than the close of business June 9, 2006.
3. Defendant will have until July 9, 2006 to take the deposition of Plaintiff and Plaintiff-Intervenor's expert, if any.
DATED this ~day of_--L~ ~4~~A =--=--_' 2006.
United States District Court Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
ANDREA LIENDER, Plaintiff-Intervenor,
vs.
BODY FIRM AEROBICS, INC., d/b/a GOLD’S GYM,
Defendant.

MEMORANDUM DECISION AND ORDER
Case No. 2:03 CV 846 TC

The Equal Employment Opportunity Commission filed this discrimination case against Defendant Body Firm Aerobics, Inc. under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. The EEOC claims that Body Firm, a corporation that owns and manages certain Gold’s Gyms in the State of Utah, subjected Andrea Liender “and a class of female employees to a hostile work environment due to sexual harassment and gender-based harassment.” (Complaint 3.) The Complaint also alleges that Body Firm retaliated against Ms. Liender after Ms. Liender voiced her concerns to supervisors, culminating in Ms. Liender’s constructive discharge. (Id. at 4.) A short time after the EEOC filed its Complaint, Ms. Liender moved to intervene and filed her own complaint in intervention.
The Complaint filed by the EEOC also alleges that Body Firm discriminated against Erin Allen, another former employee of Body Firm, by demoting her after learning she was pregnant.

(Id. at 4-5.) According to the Complaint, actions taken by Body Firm against Ms. Allen resulted in her constructive discharge. (Id. at 5.)
This matter is before the court for the resolution of several pending motions. Body Firm has moved for summary judgment on the EEOC’s claims that Body Firm retaliated against Ms. Liender, discriminated against Ms. Allen, and constructively discharged both women. Crossmotions for summary judgment have been filed on the issue of whether punitive damages are appropriate in this case. Ms. Liender has filed additional summary judgment motions. The first seeks to preclude Body Firm from relying on the “good faith” affirmative defense to sexual harassment claims that was established by the United States Supreme Court in the companion cases of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The second requests an order holding that several gyms in addition to those that were undisputedly owned by Body Firm during the relevant time period, as well as the different corporate entities owning and operating those additional gyms, are a single employer for the purposes of this lawsuit.
A few days before the hearing on these matters, the parties submitted various filings seeking to augment the record and also filed multiple evidentiary motions, urging the court to strike evidence. At the eleventh hour, Ms. Liender requested a continuance pursuant to rule 56(f) of the Federal Rules of Civil Procedure to expand the time available to respond to Body Firm’s summary judgment motion. Despite the morass of evidentiary disputes and a series of filings that tend to obfuscate rather than crystalize material facts, the record does reveal significant agreement between the parties concerning the operative facts.
After reviewing the evidentiary record, relevant court filings, and after considering the oral argument offered by the parties, the court grants Body Firm summary judgment on
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Plaintiffs’ claim that Body Firm retaliated against Ms. Liender and that Ms. Liender was constructively discharged. But on the record before it, the court is unable to resolve any other matters.
Standard Applicable to Summary Judgment Motions Federal Rule of Civil Procedure 56 permits the entry of summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The court must “examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient [to overcome a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at 252. See also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999) (“A mere scintilla of evidence supporting the nonmoving party’s theory does not create a genuine issue of material fact.”). “Summary judgment is a drastic remedy [and] and any relief pursuant to Fed. R. Civ. P. 56 should be awarded with care.” Conaway v. Smith, 853 F.2d 789, 792 n.4 (10th Cir. 1988) (citing Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir. 1973)). “Unless the moving party can demonstrate his entitlement beyond a reasonable doubt, summary judgment must be denied.” Id. (citing Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir. 1980)).
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Background In light of the standard governing summary judgment motions, the following factual exposition is largely confined to material that the parties do not dispute. Any disputed facts, or facts derived from challenged evidentiary sources, will be identified as such and will either be disregarded as inadmissible or resolved in favor of the nonmoving party when analyzing the pending motions for summary judgment. I. Ms. Liender and Body Firm In 1999 Ms. Liender began teaching aerobics classes for Body Firm, which owned and operated at least two Gold’s Gym franchises in the Provo-Orem area. In April of 2000, Ms. Liender was also given the position of office manager for Body Firm. In 2000, Body Firm’s operations were growing. At the recommendation of the national Gold’s Gym organization, Body Firm hired Robert Littlebrant to serve as chief operations officer beginning November 1, 2000. Body Firm also hired Mr. Littlebrant’s wife, Mary, who ultimately managed sales. After taking the position of chief operations officer, Mr. Littlebrant became Ms. Liender’s supervisor. Ms. Liender alleges that, over the course of the ensuing months, Mr. Littlebrant made inappropriate comments and engaged in inappropriate behavior in the work environment. The parties dispute the accuracy and appropriate characterization of many of Ms. Liender’s allegations. But, because the merits of Ms. Liender’s sexual harassment claim are not directly at issue in the pending motions, only a general description of those allegations is necessary. Those allegations include that Mr. Littlebrant (1) called her and other women “little girl,” (2) made inappropriate comments about a Halloween costume worn by Ms. Liender, (3) made inappropriate comments about Ms. Liender’s attire and physical appearance, (4) commented on
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the physical appearance of a female customer, (5) praised a female employee’s willingness to use sex appeal to make sales, (6) stood unnecessarily close to Ms. Liender when seeking help with a fax, and (7) behaved inappropriately when teaching Ms. Liender how to perform a certain exercise. A. Ms. Liender Complains
Ms. Liender alleges that on February 1, 2001, she approached Troy Peterson, an owner of Body Firm, and complained about Mr. Littlebrant’s behavior. Body Firm disputes that allegation. But it is undisputed that on May 16, 2001, Ms. Liender complained to Mr. Peterson about Mr. Littlebrant and submitted a follow-up letter to Mr. Peterson on the same day, outlining many of her complaints. Mr. Peterson discussed Ms. Liender’s May 16, 2001 complaint with Mr. Littlebrant. B. The Fallout
Ms. Liender states that the work environment changed after she made her May 16, 2001 complaint. Specifically, she claims that (1) Mr. Littlebrant told two of her coworkers not talk to her, (2) Ms. Littlebrant and another colleague began to ignore her, (3) Mr. Littlebrant wrote an interoffice memorandum criticizing Ms. Liender’s job performance and indicated that she either needed to “buy into the deal” or move on to something else, (4) her job duties and her authority changed, and (5) Laura Aston, an aerobics supervisor, told her that she should either apologize to Mr. Littlebrant or leave Body Firm. Ms. Liender alleges that the changes in her work environment were purposefully taken in an effort to retaliate against her for complaining about Mr. Littlebrant’s behavior. C. Ms. Liender Resigns
After receiving the interoffice memorandum from Mr. Littlebrant on June 26, 2001, Ms.
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Liender responded with her own memorandum dated July 5, 2001. In that memorandum, Ms. Liender indicated her willingness to work with Mr. Littlebrant, defended her work performance, and expressed her belief that Mr. Littlebrant’s memorandum was motivated by Ms. Liender’s harassment complaints.
Five days later, on July 10, 2001, Ms. Aston, an aerobics supervisor, called Ms. Liender and expressed her opinion that Ms. Liender should either apologize or quit. Ms. Liender resigned that same day. II. Ms. Allen and Body Firm
Mr. Peterson hired Ms. Allen as a salesperson before Mr. Littlebrant’s arrival. At the time Mr. Peterson hired Ms. Allen, salespersons at Body Firm received a base salary plus commissions, with no guaranteed amount of compensation. But Mr. Peterson guaranteed Ms. Allen a salary of $1800 per month. If Ms. Allen’s regular paycheck was less than $1800, she would notify Mr. Peterson, who would then write an additional check to bring her total payment up to the guaranteed rate. A. Ms. Allen’s Pregnancy and the Body Firm Task Force
During the time she was employed at Body Firm, Ms. Allen became pregnant. When her pregnancy became common knowledge, Ms. Littlebrant asked Ms. Allen how long she planned to work. Ms. Allen responded that she was planning on working until Thanksgiving. Ms. Littlebrant then asked Ms. Allen if she would be willing to perform work on a “task force” that Body Firm was creating to go through customer contracts to enter and update customer data. Ms. Littlebrant told Ms. Allen that her hours would be more flexible if she worked with the task force. Ms. Allen indicated that she would be happy to help out.
Ms. Allen began working on the task force on May 21, 2001. At the time she started with
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the task force, Ms. Allen believed, based on her conversations with Ms. Littlebrant, that her rate of pay would not be affected by her switch from the sales force to the task force. But the Littlebrants claim that they did not know about Ms. Allen’s salary guarantee agreement with Mr. Peterson at the time Ms. Allen moved to the task force. Ms. Allen alleges that Body Firm hired a replacement for Ms. Allen on the sales force after she began working with the task force. Ms. Allen was not paid her guaranteed amount while working with the task force, but received compensation at the rate of $6.50 per hour. B. Ms. Allen Complains
On May 31, 2001, a short time after she learned of her reduced pay, Ms. Allen states that she left a letter in Mr. Peterson’s office explaining the situation and requesting that Body Firm reinstate her previously guaranteed rate of compensation. In that letter, Ms. Allen indicated that she would perform whatever work was necessary to justify a return to her previous salary. Body Firm contends that Mr. Peterson never received that letter. C. The Situation Deteriorates
On June 1, 2001, Ms. Allen had a conversation with Mr. Littlebrant about her pay. Mr. Littlebrant stated his belief that Ms. Allen should not receive the rate of pay guaranteed by Mr. Peterson. During that conversation, Mr. Littlebrant also expressed his concerns about Ms. Allen’s punctuality and work attendance. There are disputed facts concerning Ms. Allen’s work attendance. Specifically, Ms. Allen disputes that time cards produced by Body Firm accurately reflect the amount of time she spent at work. Ms. Allen questions the information contained on the cards and also alleges that the cards do not serve as an accurate reflection of the number of hours she worked because there were times when she would not clock in or otherwise record her hours.
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D. Ms. Allen’s Employment with Body Firm Ends The day that Mr. Littlebrant and Ms. Allen discussed Ms. Allen’s compensation and work
attendance, Ms. Allen left work before her scheduled time. Ms. Allen claims that she had the approval of her supervisor. After learning of her early departure, Mr. Littlebrant informed Ms. Allen that she was to take no more time off her regular schedule without his permission. A short time later, Ms. Allen’s close friend died unexpectedly and Ms. Allen traveled to the State of Washington to attend funeral services. Ms. Allen admits that she did not receive permission from Mr. Littlebrant before leaving, but claims that she was unable to reach him and that she did secure the approval of her immediate supervisor.
While in Washington, Ms. Allen spoke with Ms. Liender, her supervisor, on the phone. Ms. Liender told Ms. Allen that Mr. Littlebrant was upset that she had left for the funeral without obtaining his permission and that Mr. Littlebrant was planning on firing Ms. Allen upon her return. Ms. Allen never returned to Body Firm.
Analysis Body Firm requests summary judgment in its favor on the retaliation and constructive discharge claims of Ms. Liender and the disparate treatment and constructive discharge claims of Ms. Allen. Additionally, Body Firm seeks a summary judgment holding that punitive damages are unavailable under the facts of this case. Ms. Liender has filed a cross-motion for summary judgment on the issue of punitive damages. Ms. Liender has also requested summary judgment precluding Body Firm from relying on the affirmative “good faith” defense available to employers that was recognized by the United States Supreme Court in Burlington Industries Inc., 524 U.S. 742, and Faragher, 524 U.S. 775. Finally, Ms. Liender seeks summary judgment holding that additional gyms, as well as the corporate entities that own those gyms, beyond those
8

expressly owned and operated by Body Firm are so integrally related to Body Firm’s operations that the all of the entities should be considered one employer for the purposes of this lawsuit. The court will address each issue in turn. I. Body Firm Is Entitled to Summary Judgment on Ms. Liender’s Retaliation Claim
Because Ms. Liender Suffered No Actionable Retaliation Body Firm argues that Ms. Liender’s retaliation claim must fail because Ms. Liender suffered no adverse employment action. Viewing the facts in the light most favorable to Ms. Liender and the EEOC, the court is persuaded that Ms. Liender suffered no actionable retaliation and that Body Firm is entitled to summary judgment on this issue. After the court took the present motions under advisement, the United States Supreme Court issued its opinion in Burlington Northern & Santa Fe Ry. Co. v. White, No. 05-259, 2006 WL 1698953 (June 22, 2006), which involved a Title VII retaliation claim. Burlington makes clear that the anti-retaliation provision of Title VII “protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Id. at *10. But the Court recognized that “the Courts of Appeals have used differing language to describe the level of seriousness to which . . . harm must rise before it becomes actionable retaliation.” Id. In Burlington, the Court rejected attempts to limit actionable retaliatory actions to those actions that tangibly alter employment status. See id. Rather, a plaintiff need only”show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. (internal quotation omitted). As succinctly stated in Burlington: “Context matters.” Id. at 11. Ms. Liender, claims that the following events constituted retaliation: (1) Mr. Littlebrant told two of her coworkers to not talk to her, (2) Ms. Littlebrant and another colleague began to
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ignore her, (3) Mr. Littlebrant wrote an interoffice memorandum criticizing Ms. Liender’s job performance and indicated that she either needed to “buy into the deal” or move on to something else, (4) her job duties and her authority changed, (5) Laura Aston, an aerobics supervisor told her that she should either apologize to Mr. Littlebrant or leave Body Firm.
Ms. Liender does not allege that Body Firm altered her job title, compensation, or benefits after she complained about Mr. Littlebrant’s behavior. This is consistent with Ms. Liender’s own characterization of her deposition testimony “that . . . she was never overtly demoted.” (Memo. in Opp’n to Def.’s Mot. for Partial Summ. J. 4.) But Ms. Liender argues that the facts outlined above, when considered together, support her retaliation claim. Although Burlington establishes that an individual may suffer actionable retaliation even in the absence of tangible changes to employment status, the facts alleged by Ms. Liender are insufficient to establish actionable retaliation. A. The Treatment of Ms. Liender by Her Colleagues
Body Firm challenges the admissibility of critical evidence underlying Ms. Liender’s allegations that she was shunned by coworkers after lodging her complaint. But that issue need not be resolved, because the type of treatment alleged by Ms. Liender, even if based on admissible evidence, is insufficient to sustain a retaliation claim.
The Supreme Court indicated in Burlington that “petty slights, minor annoyances, and simple lack of good manners” are normally not considered materially adverse actions. 2006 WL 1698953 at *10. In Burlington, the Court explicitly stated its agreement with the approach used by the District of Columbia and Seventh Circuits when determining whether a plaintiff has suffered actionable retaliation. Id. The Seventh Circuit has held that employee shunning is typically not a materially adverse action. See Mlynczak v. Bodman, 442 F.3d 1050, 1061 (7th
10

Cir. 2006) (“The fact that co-workers may have shunned them is also insufficient.”); Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004) (“General hostility and comments do not qualify as actionable adverse employment actions unless the hostility was severe and pervasive.”)
Although Tenth Circuit precedent to date has focused on changes to an employee’s “status” when assessing retaliation claims, that precedent is largely harmonious with the Seventh Circuit’s approach to alleged mistreatment by co-workers. See, e.g., MacKenzie v. City & County of Denver, 414 F.3d 1266, 1279 (10th Cir. 2005) (“[W]ith regard to MacKenzie’s claim that Gourley’s ‘silent treatment’ towards her was in retaliation for her filing a grievance against him, we conclude mere passive treatment does not constitute an adverse employment action.” (citing Flannery v. Tran World Airlines, Inc., 160 F.3d 425, 428 (8th Cir. 1998)); Metcalf v. Metropolitan Life, Inc., 961 F. Supp. 1536, 1544 (D. Utah 1997) (“Allegations that fellow employees treated them ‘almost contemptuously,’ subjected them to ‘isolation treatment,’ and publicly criticized their work performance without just cause ‘fails to rise to the level of ‘adverse action by the employer.’” (quoting Beaver v. Prudential Ins. Co. of Am., No. 94-4181-DES, 1996 WL 109547, at *5 (D. Kan. Feb. 1, 1996)).
The Tenth Circuit has stated that co-worker hostility may support a retaliation claim “if sufficiently severe.” Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998). Although unpleasant, the type of shunning alleged by Ms. Liender was not severe enough to meaningfully interfere with her “unfettered access to Title VII’s remedial mechanisms,” Burlington, 2006 WL 1698953 at * 10. Ms. Liender admits that the hostility was generally passive, confined to a relatively small number of people, and that her ability to perform necessary job functions was not impeded by the treatment she received from her colleagues. The hostility Ms. Liender allegedly suffered is insufficient to constitute actionable retaliation. See
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Griffin, 356 F.3d at 829-30 (comments at staff meetings made over a two-month period that plaintiff was a “bad influence on the office and that she thought she knew everything . . . were not so severe and pervasive as to be actionable.” (internal quotation omitted)); Speer v. Rand McNally & Co., 123 F.3d 658, 664 (7th Cir. 1997) (fact that supervisor yelled at plaintiff and made “her feel like she was not part of the work group” not actionable as retaliatory action). B. Mr. Littlebrant’s Memorandum
Similarly, the circulation of Mr. Littlebrant’s memorandum, although that memorandum contained a relatively harsh critique of Ms. Liender’s job performance, cannot be considered a materially adverse action. The memorandum did not impose any disciplinary penalty or otherwise alter Ms. Liender’s employment status. The memorandum amounts to nothing more than an expression of frustration and dissatisfaction with Ms. Liender’s work. Even if the memorandum could fairly be considered a threat that Body Firm would take some future negative action against Ms. Liender, the memorandum itself cannot be said to constitute an materially adverse action. See Broderick v. Donaldson, 437 F.3d 1226, 1233-34 & n.2 (D.C. Cir. 2006) (concluding that a disciplinary memorandum that “did not affect [employee’s] grade, salary, duties, or responsibilities” was not an adverse action); Cf. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 (10th Cir. 1994) (unrealized threat is not sufficient to establish adverse employment action). Although the memorandum criticized Ms. Liender, the circulation of the memorandum did not interfere with her “unfettered access to Title VII’s remedial mechanisms,” Burlington, 2006 WL 1698953 at * 10. C. Change in Duties
Ms. Liender’s allegation that her employment duties changed is also insufficient to preclude summary judgment. Ms. Liender’s claim is based on her allegations that Mr. Littlebrant
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asked her to perform data entry work and that Mr. Littlebrant took away her ability to hire and fire employees. But Ms. Liender’s claim is contradicted by her own testimony. Ms. Liender concedes that Mr. Peterson told her “not to do [the data entry], to keep doing the job that [she] was doing.” (Deposition of Andrea Liender, Aug. 9, 2005, 69:18-20.) In short, even if Mr. Littlebrant asked Ms. Liender to perform data entry duties, Ms. Liender herself concedes that the change of duties never actually happened. That concession reduces her claim to an assertion that a failed attempt by her supervisor to alter her job duties constitutes a materially adverse action. But a failed attempt to alter Mr. Liender’s duties is not the type of act “likely to dissuade employees from complaining . . . about discrimination.” Burlington, 2006 WL 1698953 at * 11.
Ms. Liender does insist that she was actually stripped of the authority to hire and fire individuals. The allegation is strikingly vague in its factual details. Ms. Liender simply states that after she lodged her complaint in May of 2001, Mr. Littlebrant told her that he would be doing the hiring. (See id. at 193-94.) The record evidence indicates that the authority to hire and fire individuals was a relatively minor part of Ms. Liender’s position. Over the course of her multi-year tenure with Body Firm, Ms. Liender, at best, hired only a few employees and fired none. When asked in her deposition to describe her job duties, Ms. Liender did not mention hiring and firing employees, and only mentioned that authority in response to a direct question from Body Firm’s counsel. (See Depo. Andrea Liender 61-62.)
Even accepting Ms. Liender’s allegation that she lost the ability to hire and fire individuals as true, such a change amounted to an immaterial alteration of responsibilities that was not significant enough in and of itself to constitute a materially adverse action. See Burlington, 2006 WL 1698953 at *12 (evidence supported a jury’s conclusion that reassignment from forklift operator to track labor was materially adverse because the new “duties were by all
13

accounts more arduous and dirtier,” the new position carried less prestige, and “the forklift operator position was objectively considered a better job” (internal quotation omitted)); see also Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir, 1998) (“[W]e will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.” (internal quotation omitted)); Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (if material responsibilities are significantly diminished it may indicate an adverse employment action (emphasis added)). The undisputed evidence establishes that Ms. Liender’s job title, status, and responsibilities remain unchanged in all material aspects after she complained about Mr. Littlebrant. Any change in her duties, or attempt to change her duties, was too innocuous to serve as a materially adverse action. D. Ms. Aston’s Phone Call
Finally, the phone call between Ms. Aston and Ms. Liender was not a materially adverse action. The record is clear that Ms. Liender knew that Ms. Aston was not in a position to make hiring or firing decisions and that Ms. Aston was merely expressing her opinion about the situation. E. Conclusion
Considered together, Ms. Liender’s contentions establish that she her work environment became notably less pleasant after she complained about Mr. Littlebrant’s behavior. But Ms. Littlebrant has not established that she suffered any materially adverse actions that would support a retaliation claim. Rather, the undisputed evidence establishes that Ms. Liender carried out her daily duties in largely the same manner that she always had and was not reassigned or otherwise tangibly penalized for making use of Title VII’s remedial provisions. In short, Ms. Liender has not established that she suffered any actions that would “dissuade[] a reasonable worker from
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making or supporting a charge of discrimination.” Burlington, 2006 WL 1698953 at *10. Accordingly, Body Firm is entitled to summary judgment on Ms. Liender’s retaliation claim. II. Ms. Liender Was Not Constructively Discharged
“Constructive discharge occurs when the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee’s position would feel compelled to resign.” Sanchez, 164 F.3d at 534. “In determining whether an employee’s working conditions would cause such feelings in a reasonable person, [courts] apply an objective test under which neither the employee’s subjective views of the situation, nor her employer’s subjective intent with regard to discharging her, are relevant.” Tran v. Trustees of State Colleges in Colo., 355 F.3d 1263, 1270 (10th Cir. 2004). Constructive discharge is a difficult showing to make. See Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004) (“The question is not whether working conditions at the facility were difficult or unpleasant. Rather, Plaintiff must show that, at the time of his resignation, his employer did not allow him the opportunity to make a free choice regarding his employment relationship.” (internal citations omitted)).
The undisputed facts of this case establish that Ms. Liender voluntarily resigned from Body Firm and that she had the choice to remain employed at the time of her resignation. In fact, in his memorandum circulated on June 26, 2001, Mr. Littlebrant expressed, in conjunction with his list of complaints about Ms. Liender’s job performance, his desire that the employment relationship with Ms. Liender be salvaged. (See “Inter Office Communication,” attached to Memo. in Supp. of Mot. for Partial Summ. J. as Ex. J.)
These facts are similar to those in Exum, where an employee resigned “under duress and protest” after being ordered to take an action he felt was unethical. 389 F.3d at 1133. The employer responded with a letter outlining alternatives to resignation. Id. The Tenth Circuit
15

concluded that the employee could not succeed on his constructive discharge claim because the letter from the employer established that alternatives to resigning existed. See id. at 1135-36. As with the letter in Exum, the memorandum circulated by Mr. Littlebrant explored, and expressed interest in, the possibility of Ms. Liender remaining at Body Firm. Even if the circulation of the memorandum is considered as an event foreshadowing an inevitable termination, that event cannot be viewed as depriving Ms. Liender of the ability to choose to remain at Body Firm.
Here, as late as July 5, 2001, over a week following the circulation of Mr. Littlebrant’s memorandum, Ms. Liender did not feel compelled to resign from her position. On that date, Ms. Liender circulated her own memorandum in response to the memorandum authored by Mr. Littlebrant. In her memorandum, Ms. Liender expressed her willingness and intention to remain at Body Firm. (See Memo. from Andrea Liender, attached to Memo. in Supp. of Mot. for Partial Summ. J. as Ex. K (“I refuse to be a victim, and will continue to express my future concerns as they may arise. I will also continue to be a valuable asset to the Gold’s Gym team.”).) Nevertheless, Ms. Liender resigned just five days after circulating her own memorandum.
There is no evidence in the record indicating that Ms. Liender’s situation changed in any material way between the date she announced her intention to remain at Body Firm and the date of her resignation. The only events identified by Ms. Liender is Mr. Littlebrant’s request that she perform some data entry work and the phone call from Ms. Aston, in which Ms. Aston expressed her opinion that Ms. Liender should either apologize or quit. As already mentioned, Ms. Liender concedes that she was never required to perform the data entry work and also admits that she was well aware that Ms. Aston was not in a position to make decisions about Ms. Liender’s employment status.
Accordingly, the evidence simply does not support the conclusion that Ms. Liender’s
16

ability to choose whether to remain with Body Firm was effectively nullified during the five-day period after she announced her intention to remain with the company. See Baca v. Sklar, 398 F.3d 1210, 1217-18 (10th Cir. 2005) (concluding that an employee felt he had a choice to remain employed after he rejected a request for his resignation and stating that, “[a]lthough his sour relationship with Sklar may have made quitting Baca’s best option, Baca has not presented a genuine issue of material fact as to whether he had no other choice but to quit and therefore felt compelled to resign.” (internal quotation and citations omitted)). Accordingly, Body Firm is entitled to summary judgment on Ms. Liender’s constructive discharge claim. III. Ms. Allen’s Claims of Disparate Treatment and Constructive Discharge Survive
Summary Judgment A. Disparate Treatment
To establish a prima facie case of disparate treatment on the basis of pregnancy, Ms. Allen must show that she (1) is a member of a protected group, (2) was qualified for the position she held, (3) suffered an adverse employment action, and (4) was replaced in the job she held. See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191-92 (10th Cir. 2000).
The first two prongs of Ms. Allen’s prima facie case are essentially unchallenged. But Body Firm argues that it is entitled to summary judgment because Ms. Allen has failed to establish that she suffered an adverse employment action. According to Body Firm, Ms. Allen voluntarily accepted a position on a data-entry task force in place of her previous position as a salesperson. As a result, it is Body Firm’s position that Ms. Allen cannot assert that Body Firm demoted her because she voluntarily accepted the position on the task force.
Ms. Allen testified at her deposition that when Ms. Littlebrant asked if she would be interested in performing work for the task force, Ms. Allen replied that she would do “whatever [she] can do to help.” (Deposition of Erin Allen, Aug. 31, 2005, 18:10-17, attached to Memo. in
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Supp. of Mot. for Partial Summ. J. as Ex. N.) According to Ms. Allen, Ms. Littlebrant informed her days later that she would be starting on the task force. During that conversation, Ms. Littlebrant indicated that Ms. Allen’s pay would remain the same.1 It was not until Ms. Allen had started work on the task force that she realized that her pay would be substantially lower than her previously guaranteed rate of $1800 per month, which she received when working as a salesperson. After discovering the lower rate of pay, Ms. Allen alleges that she left a letter for Mr. Peterson outlining her belief that she had been unfairly demoted and expressing her willingness to perform any function that would justify her previously guaranteed rate of pay. Mr. Peterson denies receiving that letter. In short, the record does not establish with any certainty that Ms. Allen knowingly and voluntarily accepted the transfer. It is also unclear whether her attempts to return to her previous position were rebuffed by Body Firm after she became fully aware of the relevant facts.
Similarly, it is unclear from the record whether Body Firm hired someone to replace Ms. Allen after she left her position on the sales team. Ms. Allen testified in her deposition that Body Firm did replace her after she moved to the task force. Ms. Littlebrant testified that she was not sure if Body Firm replaced Ms. Allen or if another salesperson was simply moved to fill the vacancy on the morning shift, which was typically worked by Ms. Allen. Body Firm has filed an evidentiary challenge to Ms. Allen’s testimony that she was replaced, claiming that her testimony lacks foundation because she has no personal knowledge that she was, in fact, replaced. But even if Ms. Allen’s testimony is disregarded, the record is still unclear on this point. Although Ms. Littlebrant may not have admitted that she hired a replacement for Ms. Allen, it is possible
1The evidentiary record is less than clear on this point, but Body Firm has conceded the accuracy of this statement for the purposes of its summary judgment motion. (See Reply Memo. in Supp. of Mot. for Partial Summ. J. lxi.)
18

that a jury could conclude that a replacement was hired. For example, when Ms. Littlebrant was asked during her deposition if she talked with Ms. Allen about taking the assignment with the task force, she replied: “Definitely, yes, because I had to replace her. You know, I had to have another salesperson.” (Deposition of Mary Littlebrant, Dec. 20, 2005, 30:21-25.)
In sum, there are disputed issues of material fact concerning Ms. Allen’s move from the sales force to the task force and unresolved factual issues concerning her possible replacement on the sales force. When seen in the light most favorable to Ms. Allen, a reasonable jury could find that Body Firm completely altered Ms. Allen’s employment status after her pregnancy was common knowledge and after she expressed a willingness to “help out” with the task force. The record does not clearly establish whether Ms. Allen knowingly and voluntarily consented to the complete alteration of her position with Body Firm. Further, there is an unresolved factual question concerning whether Ms. Allen was replaced on the sales force. B. Constructive Discharge
Body Firm argues that even if Ms. Allen’s disparate treatment claim survives summary judgment, her constructive discharge claim must fail. “[C]onduct which meets the definition of a ‘tangible employment action’ or ‘an adverse employment action’ is not necessarily sufficient to establish a constructive discharge because a constructive discharge requires a showing that working conditions imposed by the employer are not only tangible or adverse, but intolerable.” Tran, 355 F.3d at 1270-71.
As discussed, there are disputed facts surrounding Ms. Allen’s move to the task force and it is possible that a jury could conclude that Body Firm subjected her to disparate treatment, in part because the transfer to the task force may have been a demotion. See James v. Sears Roebuck & Co., 21 F.3d 989, 993 (10th Cir. 1994) (“A demotion or reassignment to a job with
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lower status or lower pay may, depending on the individual facts of the case, constitute aggravating factors that would justify a finding of constructive discharge.”).
After her pregnancy became common knowledge, Ms. Allen was given new responsibilities at a significantly lower rate of pay. Ms. Allen testified that she complained about the transfer as soon as she learned about her pay reduction. According to Ms. Allen, Mr. Littlebrant indicated that he did not think she should receive the rate of pay she received in the past. Ms. Allen testified that she left a letter of complaint with Mr. Peterson on May 31, 2001. She then discussed the situation with Mr. Littlebrant on June 1, 2001. The record establishes that there was significant tension between Mr. Littlebrant and Ms. Allen regarding the number of hours worked by Ms. Allen and some question concerning whether she would be able to return to the sales force after the work of the task force was complete. There are unresolved factual disputes about whether Ms. Allen’s hours were, in fact, deficient in some manner. Ms. Allen left work before the scheduled departure time on June 1, 2001. She also traveled to the State of Washington to attend her friend’s funeral. In both instances, Ms. Allen testified that she received approval from her immediate supervisor, Ms. Liender. In the later case, Ms. Allen testified that she tried to first contact Mr. Littlebrant to seek permission to leave, but was unable to locate him.
Viewing the facts in the light most favorable to Ms. Allen, a reasonable jury could conclude that Ms. Allen was constructively discharged before she left to attend her friend’s funeral. A reasonable jury could conclude that Body Firm drastically altered Ms. Allen’s position at Body Firm after learning of her pregnancy. It is undisputed that Ms. Allen’s compensation was significantly reduced and that her job duties were completely altered. Ms. Allen has also offered evidence that she was unfairly accused of not being punctual and not working enough hours. In short, there is evidence in the record to allow a reasonable jury to
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conclude that Ms. Allen was constructively discharged by Body Firm. Accordingly, Body Firm’s motion for summary judgment on this issue is denied. IV. It Is Premature to Issue an Order Unequivocally Allowing or Excluding Punitive
Damages in this Case The parties have filed cross motions for summary judgment on the question of whether Plaintiffs can seek punitive damages in this case. Punitive damages are available in a Title VII action when the defendant engaged in discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). Facts justifying punitive damages must be proven by a preponderance of the evidence. See Knowlton v. Teltrust Phones, Inc,, 189 F.3d 1177, 1186 (10th Cir. 1999). Body Firm’s position is that Plaintiffs have failed to even allege facts that would support the conclusion that Body Firm acted maliciously or with reckless indifference to the rights of its employees. Plaintiffs respond that the actions of Body Firm show a pervasively cavalier approach to sexual harassment. Additionally, Plaintiffs place significant weight on Mr. Peterson’s alleged inaction in the face of Ms. Liender’s February 2001 complaint, a fact which Body Firm disputes. Plaintiffs also note the confusion surrounding various versions of employee manuals and the fact that Body Firm failed to offer formal sexual harassment training to its employees. According to Plaintiffs, egregious conduct is not necessarily required to support a punitive damages claim and that the terms “malice” and “reckless indifference” do not relate to an employer’s awareness that it is engaging in discrimination, but to a “perceived risk” that “its actions will violate federal law.” See Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999). Body Firm argues, and is correct, that the facts of this case appear to be decidedly less shocking than many other cases involving punitive damages. See, e.g., Varner v. Nat’l Super Markets, Inc., 94 F.3d 1209, 1211, 1214 (8th Cir. 1996) (punitive damages not appropriate even
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though supervisor received two reports--one each from the boyfriend and the mother of the woman being harassed--about a coworker’s graphic sexual comments and actions (namely, grabbing the woman’s breasts); supervisor stated “that’s just Bob being himself”). But there is case law suggesting that punitive damages, when the facts are viewed in the light most favorable to Plaintiffs, may be justified in this case. See, e.g., Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 778 (7th Cir. 2001) (“[L]eaving managers with hiring authority in ignorance of the basic features of the discrimination laws is an ‘extraordinary mistake’ for a company to make, and a jury can find that such an extraordinary mistake amounts to reckless indifference.”).
Here, there are questions about the existence, status, and scope of Body Firm’s sexual harassment policy and there is a bona fide factual dispute about whether Ms. Liender’s first complaint was received by Mr. Peterson and ignored, as well as whether Mr. Peterson received the May 31, 2001 letter from Ms. Allen complaining about the reduction in her pay following the transfer to the task force. Also, the merits of Ms. Liender’s harassment claim have yet to be adjudicated. Accordingly, the parties cross motions on this issue are denied. V. Ms. Liender Is not Entitled to an Order Denying Body Firm from Relying on the
Ellerth/Faragher Good-Faith Defense If successfully established, the Ellerth/Faragher good-faith defense forecloses the imposition of vicarious liability on an employer for the actions of its employees. Ms. Liender argues that Body Firm should be foreclosed as a matter of law from presenting such a defense because undisputed facts establish Body Firm does not meet the prerequisites for that defense. In situations where no tangible employment action was taken, an employer can rely on this “good faith” defense only if the employer can establish, by a preponderance of the evidence, “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of
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any preventive or corrective opportunities provided by the employer to avoid harm otherwise.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
As just discussed in relation to the cross motions addressing the appropriateness of punitive damages, there are disputed facts that are critical to determining whether Body Firm may rely on an Ellerth/Faragher defense in this case. The elements Body Firm must establish to utilize the defense are highly factual in nature and the efficacy of the defense is properly left for the jury’s determination except in only the clearest of cases. See Thompson v. Town of Front Royal, 117 F. Supp. 2d 522, 529 (W. D. Va. 2000) (“[T]he affirmative defense places a premium on fact-intensive determinations of reasonableness of the conduct of the parties. . . . ‘[W]hen the reasonableness of conduct is in question, summary judgment is rarely appropriate because juries have unique competence in applying the reasonable person standard to the facts of the case.’” (quoting Lissau v. S. Food Serv., Inc., 159 F.3d 177, 184 (4th Cir. 1998)).
Accordingly, Ms. Liender’s request that the court preclude Body Firm from relying on this defense is premature. Therefore, Ms. Liender’s motion for summary judgment on this issue is denied. VI. The Court Is Unable to Grant Summary Judgment on the Issue of Whether “Gold’s
Gym of Utah” Is a Single Employer It is undisputed that Body Firm owned only two gyms outright while Ms. Liender was employed with the company. But Ms. Liender argues that three other gyms, and the three separate entities that owned those gyms, were so interconnected with Body Firm that they should be considered a part of Body Firm for the purposes of this lawsuit. Body Firm responds that the three gyms to which Ms. Liender refers are owned by completely separate entities and that Body Firm merely performed management duties for those gyms as part of a management agreement. Ms. Liender argues that the court should utilize the “single employer test” to determine
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whether Body Firm and the additional entities identified by Ms. Liender were truly one employer. Although Body Firm points out that the “single employer test” has never been formally adopted in this circuit, the Tenth Circuit has utilized the test on several occasions and the court concludes that it is appropriate to utilize that test in this case.
As stated by the Tenth Circuit, courts must “weigh four factors in considering whether . . . nominally separate entities constitute an ‘integrated enterprise’ or a single employer: (1) interrelations of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control.” Sandoval v, City of Boulder, 388 F.3d 1312, 1322 (10th Cir. 2004). Body Firm argues that the test has no applicability to entities that exist in a horizontal structure, as it claims is the case here, and is properly confined to the task to determining whether a parent and subsidiary corporation effectively serve as one employer.
While the single-employer test may have originally been formulated to address parentsubsidiary situations, the usefulness of the test is not limited to that context. See EEOC v. Sate of Ill., 69 F.3d 167, 171 (7th Cir. 1995) (“The principle that animates the doctrine is not limited to the technical relation of parent to subsidiary corporation (the ‘integrated enterprise’).”); see also Sandoval, 388 F.3d at 1322 (describing single employer test as a means of evaluating the connection between “nominally separate entities,” with no mention of hierarchical requirement); Knowlton, 189 F.3d at 1184 (“[T[he heart of the inquiry is whether there is an absence of an arm’s-length relationship among the companies.”).
Accordingly, the single-employer test can be applied here to determine if all five of the gyms (and the entities that owned those gyms) should be considered a single employer for the purposes of this lawsuit. But as the record now stands, Ms. Liender’s motion for summary judgment on this issue cannot be granted. Without question, Ms. Liender has gathered a
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significant amount of evidence indicating a substantial degree of interrelation between the five gyms (and the entities owning those gyms), which allegedly constituted “Gold’s Gym of Utah” during the time of Ms. Liender’s employment. For example, it appears that Body Firm employees, including Mr. Littlebrant and Ms. Liender, performed work on behalf of all five gyms, there was overlap in the ownership and management of the five gyms--with Body Firm serving as a part owner of related entities, employees and equipment moved between gym locations (though such movements were documented and tracked), the different gyms advertised together, employee information for all five gyms was housed at Body Firm’s central office, and the five gyms used the same payroll company.
Body Firm explains these connections through reference to a management agreement. According to Body Firm, the related entities engaged Body Firm as a manager and the connections between Body Firm and the other entities were occasioned by Body Firm’s role as manager. Ms. Liender argues that her attempts to discover information about the alleged management relationship have been “thwarted” because counsel for Body Firm instructed Mr. Peterson to not answer questions pertaining to the relationship between the entities, claiming that such questions were outside the scope of the deposition. (See Plf.-Intervenor’s Reply Memo. in Supp. of Mot. for Partial Summ. J. & Order Finding that the Def. and Related Entities Are a Single Employer 7 n.2.)
Plaintiffs filed a joint-motion to reconvene Mr. Peterson’s deposition. In her briefing before this court, Ms. Liender expresses optimism that more information concerning the alleged management agreement may be discovered if the court allows the resumption of Mr. Peterson’s deposition. (See id.) The motion to reconvene Mr. Peterson’s deposition was recently granted by United States Magistrate Judge Samuel Alba. Additional information concerning that
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agreement could be critical to a resolution of whether Ms. Liender is entitled to summary judgment on her allegation that Body Firm and the related entities are one employer.
Accordingly, Ms. Liender’s motion is denied without prejudice. Should Plaintiffs successfully augment the evidentiary record on this point, the parties are free to file summary judgment motions on this issue. VII. Motions Filed After Briefing on the Summary Judgment Motions Was Complete
As the court noted in the introduction to this memorandum decision and order, the parties submitted a flurry of motions to the court shortly before the hearing on the parties’ various motions for summary judgment. Given the ruling of the court, the majority of those motions have been rendered moot. A. Body Firm’s Motion to Strike Inadmissible Evidence
After the parties briefed the summary judgment motions resolved by this order, Body Firm filed a motion to strike certain evidence presented by Plaintiffs on various grounds. Body Firm also filed an ex parte motion seeking permission to file an overlength memorandum in support of its motion to strike. For good cause shown, the motion to file an overlength memorandum is granted.
The court has reviewed Body Firm’s motion to strike and denies that motion as moot. The court did not rely on any of the evidence challenged by Body Firm when making its ruling. The bulk of the evidence to which Body Firm takes exception deals with Ms. Liender’s harassment claim, an issue that is not now before the court. While this memorandum decision and order may mention some of the challenged evidence in passing, the court did not rely on the substantive validity of any of the challenged evidence when making its ruling.
But one of Body Firm’s challenges is worth specifically noting. According to Body
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Firm, Ms. Allen was not competent to testify concerning whether she was replaced on the sales force because she has no personal knowledge of whether she was, in fact, replaced. The court did note Ms. Allen’s belief that she was replaced when analyzing Body Firm’s motion for summary judgment on Ms. Allen’s disparate treatment claim. But the court denied summary judgment on that claim because there is no clear, undisputed evidence that establishes whether Ms. Allen was replaced or not. Accordingly, it is the province of the jury to make that determination. B. Plaintiffs’ Alternative Motion to Strike Declarations and for a Rule 56(f) Continuance to
Respond to Motions for Summary Judgment On May 31, 2006, Plaintiffs moved for an order striking declarations submitted by Body Firm as exhibits to the reply memorandum Body Firm submitted in support of its motion for summary judgment. Specifically, Plaintiffs requested that the declarations of Mr. Littlebrant, Ms. Littlebrant, Kandi Negrette, and Mr. Peterson be struck. Because the court did not rely on those declarations when making its ruling on Body Firm’s motion for summary judgment, Plaintiffs’ motion is moot. Further, the court denies Plaintiffs’ request for a rule 56(f) continuance. Plaintiffs seek an rule 56(f) continuance to respond to the “new” evidence submitted by Body Firm. As noted, the court did not rely on any “new” evidence submitted in conjunction with Body Firm’s reply brief. Therefore, a continuance on that ground is not warranted. Plaintiffs also request a rule 56(f) continuance to complete ongoing discovery before the court rules on pending summary judgment motions. The court is well aware that discovery in this case has been contentious, that Judge Alba’s order mandating the resumption of Mr. Littlebrant’s deposition was only recently upheld by this court, and that additional discovery disputes remain pending. Nevertheless, the court denies Plaintiffs’ request for a rule 56(f) continuance.
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As an initial matter, Plaintiffs filed an opposition to Body Firm’s summary judgment motion and it is unclear why a rule 56(f) request was not made until after briefing on the summary judgment motion was complete. Putting aside the allegedly “new” evidence submitted in Body Firm’s reply memorandum, Plaintiffs presumably were aware of any evidentiary matters that required further investigation at the time they filed their opposition. See Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986) (“The protection afforded by Rule 56(f) is an alternative to a response in opposition to summary judgment under 56(e) and is designed to safeguard against a premature or improvident grant of summary judgment.”)
Even if the rule 56(f) request is considered timely, the court concludes that such relief is not warranted here. The court has granted Body Firm’s motion for summary judgment only with respect to Ms. Liender’s retaliation and constructive discharge claims. Plaintiffs’ rule 56(f) request does not indicate that discoverable evidence exists that would alter the court’s ruling on those discrete issues. See id. (stating that rule 56(f) movant “must demonstrate ‘how additional time will enable him to rebut movant’s allegations of no genuine issue of fact.’” (quoting Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir. 1985)).
The additional discovery identified by Plaintiffs may shed additional light on Ms. Liender’s harassment claim, but Plaintiffs have not provided a sufficient indication that evidence material to Ms. Liender’s retaliation and constructive discharge claim remains to be discovered. Accordingly, the court denies Plaintiffs’ request for a rule 56(f) continuance. C. Plaintiffs’ Motion for Enlargement of Time to File a Declaration
On June 1, 2006, two business days before the hearing in this matter, Plaintiffs requested additional time to file the declaration of Christie Babalis. Plaintiffs failed to describe in any significant detail what pertinent evidence the late declaration would contain and there is nothing
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to indicate that the declaration could not have been obtained and provided to the court in a timely manner. Accordingly, the motion is denied. D. Body Firm’s Motion to Strike Declaration of Ashley Jensen
On June 2, 2006, Plaintiffs filed the Declaration of Ashley Jensen. The court did not rely on Ms. Jensen’s declaration when ruling on the summary judgment motions that are the subject of this order. Accordingly, Body Firm’s motion to strike that declaration is denied as moot. E. Body Firm’s Motion to Strike Paragraphs 6, 7, 8, 10, 11, 12, 13 and 14 of Third
Declaration of Andrea Liender Plaintiffs presumably submitted the third declaration of Ms. Liender in an effort to create an issue of fact concerning Ms. Liender’s allegation that she lost her ability to hire and fire employees. The court has already ruled that, even considering the facts in the light most favorable to Ms. Liender, the change of duties was not substantial enough to constitute a materially adverse action. Accordingly, the court denies Body Firm’s motion to strike certain paragraphs of Ms. Liender’s third declaration as moot.
Conclusion For the reasons outlined above, the court: Body Firm’s Motion for Partial Summary Judgment is GRANTED in part and DENIED in part. Specifically, Body Firm is granted summary judgment on Ms. Liender’s claims of retaliation and constructive discharge, but is denied summary judgment on Ms. Allen’s claims of disparate treatment and constructive discharge. Additionally, Body Firm’s request for an order holding punitive damages inapplicable to this case is denied. Ms. Liender’s Motion for Partial Summary Judgment to Eliminate the Defendant’s Ellerth/Faragher Defense and for an Order for an Instruction to the Jury to Consider an Award of Punitive Damages is DENIED.
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Ms. Liender’s Motion for Partial Summary Judgment and Order Finding that the Defendant and Related Entities Are a Single Employer is DENIED without prejudice.
Body Firm’s Motion to Strike Inadmissible Evidence is DENIED. Body Firm’s Ex Parte Motion to File Overlength Memorandum in Support of Motion to Strike Inadmissible Evidence is GRANTED. Plaintiffs’ Motion for Enlargement of Time to File a Declaration is DENIED. Body Firm’s Motion to Strike Declaration of Ashley Jensen is DENIED. Body Firm’s Motion to Strike Paragraphs 6, 7, 8, 10, 11, 12, 13 and 14 of Third Declaration of Andrea Liender is DENIED. Plaintiffs’ Alternative Motion to Strike Declarations and for a Rule 56(f) Continuance to Respond to Motions for Summary Judgment is DENIED.
SO ORDERED this 13th day of July, 2006. BY THE COURT:
TENA CAMPBELL United States District Judge
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 WOOD CRAPO LLC

Mary Anne Q. Wood #3539

Kathryn O. Balmforth #5659

60 E. South Temple, Suite 500 Salt Lake City, Utah 84111

..,,' ,

Telephone: (801) 366-6060

BRIAN C. HARRISON, P.C. Brian C. Harrison #1388 3651 North 100 East, Suite 300 Provo, Utah 84604 Telephone: (801) 375-7700

Attorneys for Defendant

IN THE UNlTED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

EQUAL EMPLOYMENT OPPORTUNlTY COMMISSION,
Plaintiff, ANDREA LIENDER,
Plaintiff-Intervenor,
v. BODY FIRM AEROBICS, lNC., d/b/a GOLD'S GYM,
Defendant.

) ) PROTECTIVE ORDER PURSUANT TO ) RULE 26(c)(6) ) ) ) ) Civil No. 2:03-CV-00846 TC
) ) Judge Tena Campbell ) Magistrate Judge Samuel Alba ) ) ) ) )

Defendant's Motion for Protective Order Pursuant to Rule 26(c)(6) was heard by the Court on August 29, 2006. Kathryn O. Balmforth appeared for the Defendant, Sally Shanley appeared for the Plaintiff, and Lincoln W. Hobbs appeared for the Plaintiff-Intervenor. The matter was also fully briefed.

Having reviewed the submissions and heard the arguments of the parties, and good cause

appearing therefor,

IT IS HEREBY ORDERED that the Defendant's Motion for Protective Order Pursuant to

Rule 26(c)(6) is GRANTED.

Pages 69 through 72 of the August 29, 2005, session of Mr. Littlebrant's deposition,

pages 38 through 43 of the July 26,2006, session of Mr. Littlebrant's deposition, and pages 28

through 35 ofthe July 26,2006, session ofthe Body Finn's 30(b)(6) deposition) are hereby

SEALED. In addition, subsequent discovery regarding the names and facts surrounding

complaints of sexual harassment by persons other than Ron Littlebrant, and occurring subsequent

to Ms. Liender's employment with Defendant, shall also be kept under seal.

--LL DATED this

day of O<-;f,

,2006.

BY THE COURT:

APPROVED AS TO FORM:
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

MagIstrate Judge Samuel Alba

Sally Shanley
HOBBS & OLSON, L.C.
s/Lisa M. McGarry
(Signed copy of document bearing signatnre of Lisa M. McGarry is being maintained in the office of the Filing Attorney)
slKathrvn O. Balmforth
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 Mary Jo O'Neill AZ #005924 Sally C. Shanley AZ #012251 Lucila G. Rosas CA #187345 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 3300 N. Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: 602-640-5032 Lucila.Rosas@eeoc.gov
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Equal Employment Opportunity Commission,
Plaintiff,
Andrea Liender, Plaintiff-Intervenor,
vs.
Body Firm Aerobics, Inc. d/b/a Gold's Gym,
Defendant.

) Case No.: No. 2:03CV00846 TC ) ) ) ) SETTLEMENT AGREEMENT ) AND STIPULATION FOR ORDER OF ) DISMISSAL ) ) ) ) ) ) ) ) ) ) ) ) )

INTRODUCTION The United States Equal Employment Opportunity Commission (the “Commission” or “EEOC”) filed this action on September 29, 2003 against Body Firm Aerobics, Inc. d/b/a/ Gold’s Gym (“Body Firm”) to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII) and the Civil Rights

Act of 1991, 42 U.S.C. §1981a. On November 25, 2003, Ms. Liender intervened in the lawsuit. On October 30, 2003, Body Firm answered the complaint and denied liability on all claims asserted in the complaint.
In the interest of resolving this matter, and as a result of having engaged in comprehensive settlement negotiations, the parties have agreed that this action should be finally resolved by this Settlement Agreement and an Order of Dismissal. This Settlement Agreement does not constitute any admission of liability by the Body Firm and Body Firm has entered into this agreement solely to avoid the cost of trial. The parties do not object to the jurisdiction of the Court over this action.
It is hereby agreed by the parties to the following: 1. This Agreement resolves all claims of the Commission, Ms. Liender and Ms. Erin Allen against Body Firm, including back pay, compensatory and punitive damages, interest, injunctive relief, attorney’s fees and costs arising out of the issues in this lawsuit. 2. This Court has jurisdiction over the parties and the subject matter of this Action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. Code § 2000e - et seq.
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3. Body Firm agrees to refrain from sexually harassing any employee; discriminating against any employee based on pregnancy; retaliating against any employee because he or she: (i) opposes or opposed discriminatory practices made unlawful by Title VII; or (ii) files or filed a charge of discrimination.
4. Without admitting liability, Body Firm shall make payment of $25,000.00 to Ms. Liender’s counsel and $25,000.00 to Ms. Allen within ten days of the execution of this agreement. The aggregate amount paid to the claimants shall be the gross sum of $50,000.00 plus additional consideration as agreed by the Plaintiffs and Defendant.
5. Body Firm shall issue a United States Internal Revenue Service Form 1099 to each individual for tax year during which payment is made.
6. Within five business days of the issuance of the checks, Body Firm shall submit a copy of the checks and all related correspondence to Mary Jo O’Neill, Regional Attorney, Equal Employment Opportunity Commission, 3300 North Central Avenue, Suite 690, Phoenix, Arizona 85012.
7. Body Firm shall post within thirty (30) days of the entry of this Agreement, for the duration of this Agreement, in a prominent place frequented by its employees at its facilities located in the state of Utah, including, both at the time that this Agreement becomes effective and for the duration of this
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Agreement, the Notice attached as Attachment B. The Notice shall be the same type, style and size as set forth in Attachment B to this Agreement.
8. Body Firm agrees to carry out policies and practices at its facilities in the state of Utah that help assure a work environment free from sexual harassment and pregnancy discrimination of its employees and that allows employees to raise concerns, or complaints without retaliation about matters, whether alleged, perceived or actual, made unlawful by Title VII.
9. Within thirty (30) days of the entry of this Agreement Body Firm shall review and revise, as necessary, a written policy that prohibits discrimination based on gender, including sexual harassment and pregnancy, as well as a policy against retaliation.
10. Body Firm shall provide training for all employees, managerial and non-managerial, includes coverage of pregnancy discrimination and sexual harassment, within one (1) year of the entry of this Agreement. All personnel who attend the trainings shall sign attendance rosters. The registry of attendance or like training records shall be retained by Defendant for the duration of this Settlement Agreement.
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11. Each Party shall bear its costs and attorney's fees incurred as a result of this action through the filing of this Agreement, except as may be provided in paragraph four.
12. The duration of this Agreement shall be one (1) year from its entry. 13. Absent extension, this Agreement shall expire by its own terms at the end of one (1) year from the date of entry without further action by the Parties. 14. The Parties agree to submit this Settlement Agreement to the Court for its consideration and approval by entry of the attached order.

Dated this 17th day of May, 2007

APPROVED AND CONSENTED TO:

s/ Mary Jo O’Neill MARY JO O’NEILL Regional Attorney
s/ Sally C. Shanley SALLY C. SHANLEY Supervisory Trial Attorney
s/ Lucila G. Rosas LUCILA G. ROSAS Trial Attorney

_________________________ President Body Firm Aerobics, Inc.
__s/ Mary Anne Q. Wood MARY ANNE Q. WOOD KATHRYN BALMFORTH Wood Crapo LLC 500 Eagle Gate Tower 60 East South Temple Salt Lake City, UT 84111

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s/ T. Diana Chen T. DIANA CHEN Trial Attorney
Equal Employment Opportunity Commission Phoenix District Office 3300 N. Central Ave., Suite 690 Phoenix, AZ 85012
Attorneys for Plaintiff
s/ Lincoln Hobbs___ LINCOLN HOBBS LISA MCGARRY Hobbs & Olson 466 East 500 South Ste. 300 Salt Lake City, UT 84111 Attorney for Plaintiff-Intervenor

Attorney for Defendant
BRIAN C. HARRISON BRIAN C. HARRISON, P.C. The Chateau Building at The Courtyard 3651 North 100 East, Suite 300 Provo, Utah 84604

6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Equal Employment Opportunity Commission,
Plaintiff,
Andrea Liender, Plaintiff-Intervenor,
vs.
Body Firm Aerobics, Inc. d/b/a Gold's Gym,
Defendant.

) ) ) Case No.: No. 2:03CV00846 TC ) ) ) ) ORDER OF DISMISSAL ) ) ) ) ) ) ) ) ) ) ) ) )

Pursuant to the Settlement Agreement of the parties submitted to this Court, IT IS HEREBY ORDERED that this action is dismissed with prejudice with each party to bear its own costs and attorneys’ fees.
Dated this _________day of _________, 2007
HON. TENA CAMPBELL United States District Judge

Attachment B
NOTICE TO ALL EMPLOYEES
This Notice is posted pursuant to a Settlement Agreement entered into between Body Firm Aerobics and the Equal Employment Opportunity Commission (EEOC).
Federal and state laws prohibit discrimination against employees on the basis of their sex. It is also unlawful to retaliate against any person because the person protested discriminatory practices or contacted the EEOC or the Utah AntiDiscrimination and Labor Commission (UALD).
Body Firm will not discriminate against any employee on the basis of sex, and will not retaliate against any employee. Nor will Body Firm tolerate its employees, vendors, contractors or other third parties discriminating against its employees on the basis of sex.
If you believe you have been discriminated against at Body Firm, you have the right to seek assistance from:
(1) EEOC, 3300 North Central Avenue, Suite 690, Phoenix, Arizona 85012, (602) 640-5000; or
(2) Utah Anti-Discrimination and Labor Commission, 160 East 300 South, 3rd Floor, Salt Lake City, Utah 84114, (801) 5306801.
No Retaliation Clause. No action may be taken against you by any supervisory or management official of Body Firm for (1) opposing discriminatory practices made unlawful by federal law, (2) filing a charge or assisting or participating in the filing of a charge of discrimination, or (3) assisting or participating in an investigation or proceeding brought under Title VII. Should any such retaliatory actions be taken against you, you should immediately contact the EEOC or the UADL at the address or telephone numbers listed above.

THIS NOTICE MUST REMAIN POSTED UNTIL____________.

Dated:

______________________________ Title of Site Manager

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Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:03-cv-00846-TC

CLOSED

EEOC v. Body Firm Aerobics Assigned to: Judge Tena Campbell Demand: $0 Cause: 42:1983 Civil Rights Act Plaintiff Equal Employment Opportunity Commission
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Date Filed: 09/29/2003 Date Terminated: 05/21/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Lincoln W. Hobbs HOBBS & OLSON LC 466 E 500 S STE 300 SALT LAKE CITY, UT 84111 (801)519-2555 Email: lincoln@haolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sally C. Shanley EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012-1848 (602)640-5032 Email: sally.shanley@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Sorenson US ATTORNEY'S OFFICE (UT) SALT LAKE CITY, UT 00000 (801)524-5682 Email: Stephen.Sorenson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
C. Emanuel Smith EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012-1848 (602)640-5000 Email: emanuel.smith@eeoc.gov
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Intervenor Plaintiff Andrea Liender
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TERMINATED: 02/24/2006
Carlie Christensen US ATTORNEY'S OFFICE (UT) SALT LAKE CITY, UT 00000 (801)524-5682 Email: Carlie.Christensen@usdoj.gov TERMINATED: 01/16/2007
Lucila G. Rosas EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012-1848 (602)640-5000 Email: lucila.rosas@eeoc.gov ATTORNEY TO BE NOTICED
Mary Jo O'Neill EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012-1848 (602)640-5000 Email: mary.oneill@eeoc.gov ATTORNEY TO BE NOTICED
T. Diana Chen EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (AZ) PHOENIX DISTRICT OFFICE 3300 N CENTRAL AVE STE 690 PHOENIX, AZ 85012-1848 (602)640-5033 Email: diana.chen@eeoc.gov ATTORNEY TO BE NOTICED
represented by Lincoln W. Hobbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Akiko Kawamura UTAH ATTORNEY GENERAL'S OFFICE (160-6-140856) LITIGATION UNIT 160 E 300 S 6TH FL
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CM/ECF - U.S. District Court:utd - Docket Report
V. Defendant Body Firm Aerobics doing business as Gold's Gym
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PO BOX 140856 SALT LAKE CITY, UT 84114-0856 (801)366-0100 Email: akawamura@utah.gov TERMINATED: 08/15/2005
Julie Ladle HOBBS & OLSON LC 466 E 500 S STE 300 SALT LAKE CITY, UT 84111 (801) 519-2555 Email: julie@haolaw.com ATTORNEY TO BE NOTICED
Lisa M. McGarry HOBBS & OLSON LC 466 E 500 S STE 300 SALT LAKE CITY, UT 84111 (801)519-2555 Email: lisa@haolaw.com ATTORNEY TO BE NOTICED
represented by Brian C Harrison 3651 N 100 E STE 300 PROVO, UT 84604 (801)375-7700 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Anne Q. Wood WOOD CRAPO LLC 60 E SOUTH TEMPLE STE 500 SALT LAKE CITY, UT 84111 (801)366-6060 Email: mawood@woodcrapo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Ogden Balmforth WOOD CRAPO LLC 60 E SOUTH TEMPLE STE 500 SALT LAKE CITY, UT 84111 (801)366-6060 Email: kobalmforth@woodcrapo.com ATTORNEY TO BE NOTICED
Rachel A. Asbury
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Movant Shannon Viertel McCarty

WOOD CRAPO LLC 60 E SOUTH TEMPLE STE 500 SALT LAKE CITY, UT 84111 (801)366-6060 Email: rasbury@woodcrapo.com ATTORNEY TO BE NOTICED
represented by Mary Anne Q. Wood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian C Harrison (See above for address)
Kathryn Ogden Balmforth (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/29/2003 09/30/2003 10/01/2003 10/03/2003 10/27/2003
11/03/2003 11/03/2003
11/26/2003 11/26/2003 12/11/2003

#

Docket Text

1 Complaint filed, assigned to Judge J. Thomas Greene (kvs) (Entered: 09/30/2003)
Memo of recusal signed by Judge Greene, 9/30/03 (ce) (Entered: 10/01/2003)
Case reassigned to Judge Tena Campbell (ce) (Entered: 10/02/2003)
2 NTC of recusal of Judge J. Thomas Greene and reassignment to Judge Tena Campbell. cc: atty (alt) (Entered: 10/06/2003)
3 Return of summons executed as to Body Firm Aerobics c/o Ryan Heber on 10/7/03 Answer due on 10/27/03 for Body Firm Aerobics (kvs) (Entered: 10/30/2003)
4 Answer to Complaint by Body Firm Aerobics (kvs) (Entered: 11/05/2003)
Clerk's mailing of certificate of acknowledgment of alternative dispute resolution option. Mailed, faxed or emailed to plaintiff EEOC, defendant Body Firm Aerobics (kvs) (Entered: 11/05/2003)
5 Motion by Andrea Liender to intervene by Andrea Liender (kvs) (Entered: 12/01/2003)
6 Memorandum by Andrea Liender in support of [5-1] motion to intervene by Andrea Liender (kvs) (Entered: 12/01/2003)
7 Motion and Order signed by Judge Tena Campbell, 12/11/03. Granting motion/PHV for Attorney Sally Shanley, Mary Jo O'Neill, C. Emanuel Smith on behalf of plaintiff EEOC cc:attys (alt) (Entered: 12/15/2003)

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04/07/2004 04/22/2004 05/18/2004 05/18/2004 05/26/2004
06/01/2004 06/01/2004 06/14/2004
06/16/2004 08/13/2004 11/19/2004 11/22/2004 11/23/2004 11/23/2004 04/29/2005

8 Notice of Hearing filed: status conference set for 2:30 6/10/04 To be held before Judge TC cc:atty (Ntc generated by: Chmbrs, TB) (alt) (Entered: 04/07/2004)
9 Order granting [5-1] motion to intervene by Andrea Liender signed by Judge Tena Campbell, 4/22/04 cc:atty (alt) (Entered: 04/23/2004)
10 AMENDED Notice of Hearing filed: status conference reset for 2:30 6/14/04 To be held before Judge TC cc:atty (Ntc generated by: Chmbrs, TB) (alt) (Entered: 05/18/2004)
11 REPORT of Attorney Planning Meeting (alt) (Entered: 05/18/2004)
12 Scheduling order Setting Joining of parties, amending of pleadings on 5:00 7/23/04; Deadline for filing of all motions 5:00 1/14/05; Discovery cutoff 5:00 11/19/04-fact, 12/23/04-expert; Special Attorney Conference by 5/5/05; Final Pretrial Conference for 3:00 5/19/05; 3-day Jury Trial for 8:30 6/13/05 Signed by Judge David Nuffer 5/25/04 cc:atty. (alt) (Entered: 05/26/2004)
13 Certificate of service re: initial Rule 26(a)(1) dcls by EEOC (alt) (Entered: 06/02/2004)
14 Certificate of service re: Rule 26(a)(1) intitial dcls by Andrea Liender (alt) (Entered: 06/02/2004)
15 Minute entry: Mr. Harrison will file a stipulated motion to amend scheduling order. Parties may mediate and will inform the court if mediation is chosen. The court directs counsel to meet this week and decide what discovery needs to be produced. Damages are to be identified by 7/15/04. ; Judge: Tena Campbell Court Reporter: Ray Fenlon Court Deputy: Theresa Brown (tb) (Entered: 06/15/2004)
16 Certificate of service re: dft's initial dcls by Body Firm Aerobics (alt) (Entered: 06/17/2004)
17 Certificate of service by EEOC re: First Supplemental Disclosure Statement (jmr) (Entered: 08/13/2004)
18 Joint Stipulation by EEOC, Body Firm Aerobics, Andrea Liender Joint Stip to extend time upto 4/29/04 for discovery deadlines (jmr) (Entered: 11/22/2004)
21 Order granting [18-1] stipulated motion to extend time upto 4/29/04 for discovery deadlines, discovery due set for 4/29/05 signed by Judge Tena Campbell, 11/24/04 cc:atty (alt) (Entered: 11/23/2004)
19 AMENDED Notice of Hearing filed: Final Pretrial Conference reset for 3:00 11/14/05 To be held before Judge TC cc:atty (Ntc generated by: Chmbrs, TB) (alt) (Entered: 11/23/2004)
20 AMENDED Notice of Hearing filed: 3-Day Jury trial reset for 8:30 12/5/05 To be held before Judge TC cc:atty (Ntc generated by: Chmbrs, TB) (alt) (Entered: 11/23/2004)
22 Order, extending deadline , discovery due reset for 8/31/05 signed by Judge Tena Campbell, 4/28/05 cc:atty (alt) (Entered: 04/29/2005)

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06/06/2005 06/09/2005
06/24/2005 06/24/2005 07/13/2005 07/18/2005 07/21/2005 07/21/2005 07/26/2005
08/08/2005 08/10/2005 08/15/2005 08/17/2005 08/22/2005 08/23/2005
08/23/2005

23 CERTIFICATE OF SERVICE re: 2nd Supplemental Discloure Statement by Equal Employment Opportunity Commission (alt) (Entered: 06/08/2005)
24 MOTION/ORDER granting motion for Admission Pro Hac Vice of Lucila G. Rosas for Equal Employment Opportunity Commission. Attorneys admitted pro hac vice may download a copy of the District of Utah's local rules from court's web site at http://www.utd.uscourts.gov. Signed by Judge Tena Campbell on 6/9/05 (alt) (Entered: 06/10/2005)
25 CERTIFICATE OF SERVICE re: 1st set of requests for prod/docs by Andrea Liender (alt) (Entered: 06/28/2005)
26 CERTIFICATE OF SERVICE re: 1st set of interrogs by Andrea Liender (alt) (Entered: 06/28/2005)
27 NOTICE of Appearance by Kathryn Ogden Balmforth, Mary Anne Q. Wood on behalf of Body Firm Aerobics (alt) (Entered: 07/18/2005)
28 CERTIFICATE OF SERVICE re: Discovery Requests by Equal Employment Opportunity Commission (alt) (Entered: 07/27/2005)
29 CERTIFICATE OF SERVICE re: 2nd set of requests for prod/docs by Body Firm Aerobics (alt) (Entered: 07/27/2005)
30 CERTIFICATE OF SERVICE re: 1st set of interrogs & reqs for prod/docs by Body Firm Aerobics (alt) (Entered: 07/27/2005)
31 CERTIFICATE OF SERVICE re: answer/responses to Lienders 1st set of Interrogs & 1st set of requests for prod/doc by Body Firm Aerobics (alt) (Entered: 08/08/2005)
32 CERTIFICATE OF SERVICE re: 3rd Supplemental Disclosure Statement by Equal Employment Opportunity Commission (alt) (Entered: 08/10/2005)
33 MOTION for Akiko Kawamura to Withdraw as Attorney filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 08/11/2005)
34 ORDER granting 33 Motion to Withdraw as Attorney. Signed by Judge Tena Campbell on 8/15/05 (alt) (Entered: 08/17/2005)
36 CERTIFICATE OF SERVICE by Body Firm Aerobics (alt) (Entered: 08/23/2005)
40 CERTIFICATE OF SERVICE re: discovery responses by Equal Employment Opportunity Commission (alt) (Entered: 08/29/2005)
35 MOTION for Protective Order re 30(b)(6) Deposition filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Shanley, Sally) (Entered: 08/23/2005)
37 Joint MOTION for Extension of Time to Complete Discovery filed by Plaintiff Equal Employment Opportunity Commission and intervenor plaintiff Andrea Liender. (Attachments: # 1 # 2)(Shanley, Sally) Modified on 8/24/2005 by adding intervenor plaintiff Liender to this entry (ce, ). (Entered: 08/23/2005)

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08/23/2005 08/24/2005
08/24/2005
08/29/2005 08/29/2005 08/29/2005 08/30/2005 08/30/2005 09/01/2005 09/06/2005 09/09/2005 09/12/2005 09/12/2005 09/15/2005 09/16/2005

41 CERTIFICATE OF SERVICE re: responses to 1st & 2nd sets of requests for prod/docs, by Andrea Liender (alt) (Entered: 08/29/2005)
38 Modification of Docket: Error: Intervenor Plaintiff was not added to the original entry for motion for extension of time to complete discovery, doc no. 37. Correction: Added intervenor plaintiff Liender re 37 Joint MOTION for Extension of Time to Complete Discovery (ce, ) (Entered: 08/24/2005)
39 Modification of Docket: Error: The attachments for documents no. 35 and 37 were not described. Correction: Attachments were described for clarity re 37 Joint MOTION for Extension of Time to Complete Discovery (one attachment), 35 MOTION for Protective Order re 30(b)(6) Deposition (two attachments). (ce, ) (Entered: 08/24/2005)
44 MOTION for Protective Order re: Deposition, filed by Defendant Body Firm Aerobics (alt) (Entered: 08/31/2005)
45 MEMORANDUM in Support of 44 MOTION for Protective Order, filed by Defendant Body Firm Aerobics (alt) (Entered: 08/31/2005)
46 STATEMENT OF COUNSEL in support of 44 MOTION for Protective Order filed by Body Firm Aerobics (alt) (Entered: 08/31/2005)
42 MOTION to Amend 4 Answer to Complaint filed by Defendant Body Firm Aerobics (alt) (Entered: 08/31/2005)
43 MEMORANDUM in Support of 42 MOTION to Amend 4 Answer to Complaint, filed by Defendant Body Firm Aerobics (alt) (Entered: 08/31/2005)
47 CERTIFICATE OF SERVICE re: 1st Supplementation to Rule 26(a)(1) Initial Disclosures by Andrea Liender (alt) (Entered: 09/08/2005)
49 ORDER REFERRING CASE to Magistrate Judge Samuel Alba under 28:636 (b)(1)(A), Magistrate to hear and determine all nondispositive pretrial matters. Signed by Judge Tena Campbell on 9/6/05 (alt) (Entered: 09/09/2005)
48 EXPERT REPORT of David Cherrington Witness filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Expert Report of David Cherrington)(Wood, Mary Anne) (Entered: 09/09/2005)
50 MEMORANDUM in Opposition to 35 MOTION for Protective Order re: 30(b)(6) Deposition, filed by Defendant Body Firm Aerobics (alt) (Entered: 09/15/2005)
51 MEMORANDUM in Opposition to 37 Joint MOTION for Extension of Time to Complete Discovery, filed by Defendant Body Firm Aerobics (alt) (Entered: 09/15/2005)
53 EXHIBIT A filed by Body Firm Aerobics re: 51 Memorandum in Opposition to Motion (alt) (Entered: 09/19/2005)
52 NOTICE OF HEARING ON MOTION re: 35 MOTION for Protective Order re 30(b)(6) Deposition, 44 MOTION for Protective Order, 37 Joint MOTION for Extension of Time to Complete Discovery, 42 MOTION to Amend/Correct 4 Answer to Complaint: Motion Hearing set for 10/5/2005 10:00 A.M. in Room 248 before Magistrate Judge Samuel Alba. (cas) (Entered: 09/16/2005)

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09/19/2005 09/19/2005 09/19/2005 09/19/2005 09/19/2005 09/26/2005
09/26/2005 09/27/2005 09/27/2005 09/27/2005 09/30/2005
10/03/2005 10/04/2005 10/04/2005 10/05/2005 10/05/2005

54 RESPONSE to Motion re 42 MOTION to Amend/Correct 4 Answer to Complaint filed by Plaintiff Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 09/19/2005)
55 CROSS-MOTION to Compel 30(b)(6) Deposition filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 09/22/2005)
56 MEMORANDUM in Opposition to 44 MOTION for Protective Order, filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 09/22/2005)
57 MEMORANDUM in Support of 55 CROSS-MOTION to Compel 30(b)(6) Deposition filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 09/22/2005)
58 DECLARATION of Lincoln W. Hobbs filed by Andrea Liender (alt) (Entered: 09/22/2005)
59 REPLY to Response to Motion re 37 Joint MOTION for Extension of Time to Complete Discovery filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Letter to Brian Harrison)(Rosas, Lucila) (Entered: 09/26/2005)
60 REPLY to Response to Motion re 35 MOTION for Protective Order re 30(b)(6) Deposition filed by Plaintiff Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 09/26/2005)
61 MOTION to Strike the Declaration of Mary Anne Q. Wood filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 09/29/2005)
62 MEMORANDUM in Support of 61 MOTION to Strike filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 09/29/2005)
63 SUBSTITUTED DECLARATION of Brain C. Harrison filed by Body Firm Aerobics (alt) (Entered: 09/29/2005)
64 REPLY to Response to Motion re 44 MOTION for Protective Order filed by Defendant Body Firm Aerobics. (Attachments: # 1 Appendix A - Unreported cases: Schroeder v. Southwest Airlines; EEOC v. Pacific Maritime Ass'n)(Wood, Mary Anne) (Entered: 09/30/2005)
65 REPLY to Response to Motion re 42 MOTION to Amend/Correct 4 Answer to Complaint filed by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 10/03/2005)
66 MEMORANDUM in Opposition re 55 MOTION to Compel 30(b)(6) Deposition filed by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 10/04/2005)
68 REPLY to Response to 55 MOTION to Compel 30(b)(6) Deposition filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 10/12/2005)
69 MOTION to Compel Resumption of Deposition of Ronald O. Littlebrandt filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 10/13/2005)
70 MEMORANDUM in Support of 69 MOTION to Compel Resumption of Deposition of Ronald O. Littlebrandt filed by Intervenor Plaintiff Andrea Liender

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10/05/2005 10/05/2005 10/12/2005
10/19/2005 10/28/2005 10/31/2005
11/01/2005
11/01/2005 11/04/2005 11/14/2005

(Attachments: #(1) Exhibit, #(2) Exhibit, #(3) Exhibit, #(4) Exhibit)(alt) (Entered: 10/13/2005)
71 SUPPLEMENTAL DECLARATION of Lincoln W. Hobbs filed by Andrea Liender (alt) (Entered: 10/13/2005)
72 AMENDED CERTIFICATE OF SERVICE re: Rule 26(a)(3) Pretrial Disclosures by Andrea Liender (alt) (Entered: 10/13/2005)
67 NOTICE of Lodging Proposed Form of Order by Equal Employment Opportunity Commission re 35 MOTION for Protective Order re 30(b)(6) Deposition (Attachments: # 1 Exhibit Proposed Form of Order)(Shanley, Sally) (Entered: 10/12/2005)
73 MEMORANDUM in Opposition to 69 MOTION to Compel Resumption of Deposition of Ronald O. Littlebrandt, filed by Defendant Body Firm Aerobics (alt) (Entered: 10/21/2005)
74 AMENDED ANSWER to Complaint filed by Body Firm Aerobics(alt) (Entered: 10/31/2005)
75 NOTICE OF HEARING ON MOTION re: 69 MOTION to Compel Resumption of Deposition of Ronald O. Littlebrandt: Motion Hearing set for 11/14/2005 09:30 AM in Room 248 before Magistrate Judge Samuel Alba. (cas) (Entered: 10/31/2005)
76 TRIAL ORDER with instructions to counsel: 3-day Jury Trial set for 12/5/2005 08:30 AM before Judge Tena Campbell. Final Pretrial Conference set for 11/14/2005 03:00 PM before Judge Tena Campbell. In Chambers Conference set for 12/5/2005 08:00 AM before Judge Tena Campbell. Signed by Judge Tena Campbell on 10/31/05 (alt) (Entered: 11/01/2005)
77 NOTICE OF FILING Complaint in Intervention filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 11/03/2005)
78 ORDER granting 42 Motion to Amend Answer. Signed by Judge Samuel Alba on 11/3/05 (alt) (Entered: 11/04/2005)
85 Minute Entry for proceedings held before Judge Samuel Alba: granting 69 Motion to Compel, Motion Hearing held on 11/14/2005 re 69 MOTION to Compel Resumption of Deposition of Ronald O. Littlebrandt filed by Andrea Liender. The Court noted the Motion to Compel and corresponding memoranda. Counsel presented their arguments as to the Motion to Compel to the Court. The Court granted the Plaintiff-Intervenor's Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt. The Court ordered Rule 37 sanctions as to the costs associated with the resumption of the deposition to include the attorney's fees of Mr. Smith and Mr. Hobbs. The Court will not impose travel costs but will assess the hourly rate. Mr. Hobbs is to submit an affidavit of costs and provide a copy to counsel. Mr. Hobbs is to prepare and submit a proposed order in this matter. Attorney for Plaintiff-Intervenor: Lincoln Hobbs, Attorney for Plaintiff: Emanuel Smith, Attorney for Defendant Kathryn Balmforth.(Court Reporter Electronic, Tape #162 & 163, Log #6418-End and 0000-781.) (tsh, ) (Entered: 11/18/2005)

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11/15/2005 11/15/2005 11/15/2005 11/15/2005 11/15/2005 11/16/2005 11/16/2005 11/18/2005
11/21/2005 11/28/2005 11/28/2005 11/28/2005 11/30/2005 11/30/2005 12/01/2005

79 ORDER granting 35 Motion for Protective Order. Signed by Judge Samuel Alba on 11/15/05 (alt) (Entered: 11/15/2005)
80 MOTION to Compel Responses to Discovery re: Punitive Damages filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 11/16/2005)
81 MEMORANDUM in Support of 80 MOTION to Compel Responses to Discovery re: Punitive Damages filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 11/16/2005)
82 DECLARATION of Lisa McGarry filed by Andrea Liender (alt) (Entered: 11/16/2005)
87 NOTICE of Change of Address by Lincoln W Hobbs, Lisa M. McGarry (alt) (Entered: 11/21/2005)
83 MOTION to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt filed by Defendant Body Firm Aerobics (alt) (Entered: 11/18/2005)
84 MEMORANDUM in Support of 83 MOTION to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt filed by Defendant Body Firm Aerobics (alt) (Entered: 11/18/2005)
86 AMENDED SCHEDULING ORDER: Discovery due by 12/30/2005. Motions due by 1/31/2006. Final Pretrial Conference set for 4/3/2006 02:30 PM before Judge Tena Campbell. 4-day Jury Trial set for 4/24/2006 08:30 AM before Judge Tena Campbell. Signed by Judge Samuel Alba on 11/18/05 (alt) (Entered: 11/21/2005)
88 ANSWER to Complaint in Intervention filed by Body Firm Aerobics (alt) (Entered: 11/22/2005)
89 MOTION to Compel Production of Documents filed by Defendant Body Firm Aerobics (alt) (Entered: 11/29/2005)
90 MEMORANDUM in Support of 89 MOTION to Compel Production of Documents filed by Defendant Body Firm Aerobics (alt) (Entered: 11/29/2005)
91 OBJECTIONS to Affidavit of Attorney Fees (no such affidavit filed with the Clerk's Office as of 11/29/05), filed by Defendant Body Firm Aerobics (alt) (Entered: 11/29/2005)
95 CERTIFICATE OF SERVICE re: 1st set of interrogs & 2nd set of reqs for prod/docs by Equal Employment Opportunity Commission (alt) (Entered: 12/02/2005)
96 MEMORANDUM in Opposition to 80 MOTION to Compel Responses to Discovery re: Punitive Damages, filed by Defendant Body Firm Aerobics (alt) (Entered: 12/02/2005)
92 NOTICE of Service of Fourth Supplemental Rule 26(a)(1) Disclosure Statement by Equal Employment Opportunity Commission (Shanley, Sally) (Entered: 12/01/2005)

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12/01/2005 12/01/2005
12/02/2005 12/02/2005 12/05/2005 12/05/2005 12/06/2005 12/06/2005 12/06/2005 12/07/2005 12/08/2005 12/08/2005 12/09/2005
12/09/2005 12/12/2005

93 MOTION to Strike 48 Expert Report filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 12/01/2005)
94 MOTION to Expedite Hearing on Plaintiff EEOC's and Plaintiff-Intervenor's Motion to Strike Expert Testimony filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 12/01/2005)
97 MEMORANDUM in Opposition to 94 MOTION to Expedite Hearing on Plaintiff EEOC's and Plaintiff-Intervenor's Motion to Strike Expert Testimony, filed by Defendant Body Firm Aerobics (alt) (Entered: 12/06/2005)
98 OBJECTION to Magistrates 79 Order on Motion for Protective Order, filed by Defendant Body Firm Aerobics (Attachments: # 1 Exhibit)(alt) (Entered: 12/06/2005)
100 **RESTRICTED DOCUMENT** RETURN OF SERVICE Executed for Subpoena served on Rhonda Albrecht Hillan on 11/29/05, filed by Defendant Body Firm Aerobics (alt) (Entered: 12/07/2005)
101 MEMORANDUM in Opposition to 83 MOTION to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt, filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/07/2005)
102 ERRATA to 98 Objections filed by Defendant Body Firm Aerobics (alt) (Entered: 12/09/2005)
103 MOTION to Continue Trial Date filed by Defendant Body Firm Aerobics (alt) (Entered: 12/09/2005)
104 MEMORANDUM in Support of 103 MOTION to Continue Trial Date filed by Defendant Body Firm Aerobics (alt) (Entered: 12/09/2005)
99 NOTICE OF HEARING: (Notice generated by Theresa Brown) Miscellaneous Hearing (Dft's Objection to Magistrate Order on Motion for Protective Order) set for 12/19/2005 10:00 AM in Room 230. (tab) (Entered: 12/07/2005)
107 **RESTRICTED DOCUMENT** RETURN OF SERVICE Executed for Subpoena served on Rona Hill on 11/30/05, filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/09/2005)
108 CERTIFICATE OF SERVICE re: supplemental responses to 1st set of reqs for prod/docs by Body Firm Aerobics (alt) (Entered: 12/09/2005)
105 REPLY to Response to Motion re 94 MOTION to Expedite Hearing on Plaintiff EEOC's and Plaintiff-Intervenor's Motion to Strike Expert Testimony filed by Plaintiff Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 12/09/2005)
106 AMENDED NOTICE OF HEARING: (Notice generated by Theresa Brown) Miscellaneous Hearing (Objection to Magistrate Order) set for 12/19/2005 02:30 PM in Room 230. (tab) (Entered: 12/09/2005)
109 RESPONSE re: 91 Objections, filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/13/2005)

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12/13/2005 12/14/2005 12/15/2005
12/15/2005 12/15/2005 12/15/2005 12/15/2005 12/16/2005 12/16/2005 12/16/2005 12/16/2005 12/16/2005 12/19/2005
12/19/2005

110 REPLY to Response to 80 MOTION to Compel Responses to Discovery re: Punitive Damages filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/14/2005)
111 CERTIFICATE OF SERVICE re: 2nd Supplementation to Rule 26(a)(1) Initial Disclosures by Andrea Liender (alt) (Entered: 12/14/2005)
Response to Objections BRIEF re 98 Objections to Magistrate's Order filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # (1))(Shanley, Sally) Modified on 12/19/2005: document image removed and redocketed (alt) (Entered: 12/15/2005)
114 RESPONSE re: 98 Objections, filed by Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibits)(alt) (Entered: 12/19/2005)
115 Modification of Docket: Error: Filer selected wrong docketing event for document #112. Correction: Document redocketed correctly as a Response (entry #114), re: [112] Brief (alt) (Entered: 12/19/2005)
116 REPLY to Response to 83 MOTION to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt filed by Defendant Body Firm Aerobics (alt) (Entered: 12/19/2005)
117 CERTIFICATE OF SERVICE re: First Supplemental Disclosures by Body Firm Aerobics (alt) (Entered: 12/19/2005)
113 RESPONSE to Motion re 89 MOTION to Compel Production of Documents filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Shanley, Sally) (Entered: 12/16/2005)
118 MOTION to Quash Subpoena filed by Defendant Body Firm Aerobics (alt) (Entered: 12/19/2005)
119 MEMORANDUM in Support re: 118 MOTION to Quash Subpoena filed by Defendant Body Firm Aerobics (alt) (Entered: 12/19/2005)
120 MOTION for Protective Order re: Deposition of Ron Littlebrant filed by Defendant Body Firm Aerobics (alt) (Entered: 12/19/2005)
121 MEMORANDUM in Support re: 120 MOTION for Protective Order filed by Defendant Body Firm Aerobics (alt) (Entered: 12/19/2005)
122 Minute Entry for proceedings held before Judge Tena Campbell : Miscellaneous Hearing (Objection to Magistrate Order) held on 12/19/2005. After hearing argument from counsel, the court grants in part and denies in part objection to Magistrate Order. The court directs EEOC to designate a person to give deposition testimony regarding concilliation in this case. Ms. Shanley is to produce file by 12/23/2005. Ms. Wood is to prepare an order. The court re-sets 5 day jury trial for 6/12/2006 (second place) and 9/25/2006 (first place). Attorney for Plaintiff: Sally Shanley, Esq., Attorney for Defendant Mary Anne Wood, Kathryn Balmforth, Esq.(Court Reporter Ray Fenlon.) (tab) (Entered: 12/19/2005)
125 MEMORANDUM in Opposition re: 93 MOTION to Strike 48 Expert Report, filed by Defendant Body Firm Aerobics (alt) (Entered: 12/20/2005)

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12/20/2005 12/20/2005
12/21/2005 12/21/2005 12/21/2005 12/21/2005 12/21/2005 12/21/2005 12/22/2005 12/22/2005 12/23/2005 12/27/2005 12/27/2005 12/28/2005 12/28/2005 12/30/2005

123 NOTICE OF HEARING: (Notice generated by Theresa Brown) Final Pretrial Conference set for 5/22/2006 03:00 PM in Room 230 before Judge Tena Campbell. (tab) (Entered: 12/20/2005)
124 AMENDED NOTICE OF HEARING: (Notice generated by Theresa Brown) Five Day Jury Trial(second place) set for 6/12/2006 08:30 AM in Room 230 before Judge Tena Campbell. A five day jury trial (first place) has been set for 9/25/2006 @ 8:30 a.m. (tab) (Entered: 12/20/2005)
127 WRITTEN ORDER following [122] Minute Entry on Miscellaneous Hearing on Dfts Objection to Magistrate Order (Oral order of 12/19/05). Signed by Judge Tena Campbell on 12/21/05 (alt) (Entered: 12/27/2005)
128 **RESTRICTED DOCUMENT** RETURN OF SERVICE Executed for Subpoena served on Rusty R. Hurd on 11/23/05, filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/28/2005)
130 MEMORANDUM in Opposition re: 120 MOTION for Protective Order filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/28/2005)
131 MEMORANDUM in Support re: 129 MOTION to Compel Resumption of Deposition of Ronald O. Littlebrant filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/28/2005)
132 CERTIFICATE OF SERVICE re: Supplemental Responses to 1st & 2nd Sets of Requests for Prod/Docs by Andrea Liender (alt) (Entered: 12/28/2005)
133 CERTIFICATE OF SERVICE re: Declaration of Andrea Liender (alt) (Entered: 12/28/2005)
126 NOTICE of Service of Supplemental Response to Defendants Request for Production by Equal Employment Opportunity Commission (Shanley, Sally) (Entered: 12/22/2005)
129 2ND MOTION to Compel Resumption of Deposition of Ronald O. Littlebrant filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 12/28/2005)
134 REPLY in Support of 91 Objections filed by Defendant Body Firm Aerobics (alt) (Entered: 12/28/2005)
135 DOCUMENT LODGED consisting of: letter from Dept of Workforce Svcs (alt) (Entered: 12/28/2005)
136 CERTIFICATE OF SERVICE re: 3rd Supplementation to Initial Disclosures by Andrea Liender (alt) (Entered: 12/28/2005)
137 MOTION to Quash Subpoena filed by Movant Shannon Viertel McCarty, Defendant Body Firm Aerobics (alt) (Entered: 12/29/2005)
138 MEMORANDUM in Support re: 137 MOTION to Quash Subpoena filed by Movant Shannon Viertel McCarty, Defendant Body Firm Aerobics (alt) (Entered: 12/29/2005)
140 CERTIFICATE OF SERVICE re: 4th Supplementation to Rule 26(a)(1) Intitial Disclosures by Andrea Liender (alt) (Entered: 01/03/2006)

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12/30/2005 12/30/2005 12/30/2005 12/30/2005 01/03/2006
01/03/2006 01/03/2006 01/03/2006 01/03/2006 01/03/2006 01/03/2006 01/05/2006
01/06/2006

141 REPLY to Response to 137 MOTION to Quash Subpoena filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/03/2006)
142 MOTION to Take 11th Deposition, MOTION for Extension of Time for Discovery Deadline for Limited Purpose of Taking the Depositions of Troy Viertel and Shannon Viertel McCarty filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/03/2006)
143 MEMORANDUM in Support re: 142 MOTION to Take 11th Deposition, MOTION for Extension of Time for Discovery Deadline for Limited Purpose of Taking the Depositions of Troy Viertel and Shannon Viertel McCarty filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/03/2006)
145 CERTIFICATE OF SERVICE re: answers to 1st interrogs & response to 2nd req for prod/docs by Body Firm Aerobics (alt) (Entered: 01/04/2006)
139 NOTICE OF HEARING ON MOTIONS re: 80 MOTION to Compel Responses to Discovery re: Punitive Damages, 83 MOTION to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt, 89 MOTION to Compel Production of Documents, 120 MOTION for Protective Order, 118 MOTION to Quash Subpoena, 103 MOTION to Continue Trial Date: Motion Hearing set for 1/17/2006 9:00 a.m. in Room 248 before Magistrate Judge Samuel Alba. (cas) (Entered: 01/03/2006)
144 REPLY to Response to Motion re 93 MOTION to Strike 48 Expert Report filed by Plaintiff Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/03/2006)
146 **RESTRICTED DOCUMENT** RETURN OF SERVICE Executed for Subpoena Duces Tecum served on UT Dept of Workforce Services on 12/20/05, filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/04/2006)
147 REPLY to Response to 89 MOTION to Compel Production of Documents filed by Defendant Body Firm Aerobics (alt) (Entered: 01/04/2006)
148 WITHDRAWAL OF 118 MOTION to Quash Subpoena by Defendant Body Firm Aerobics (alt) (Entered: 01/04/2006)
149 MOTION for Attorney Fees filed by Defendant Body Firm Aerobics (alt) (Entered: 01/04/2006)
150 MEMORANDUM in Support re: 149 MOTION for Attorney Fees filed by Defendant Body Firm Aerobics (alt) (Entered: 01/04/2006)
151 AMENDED NOTICE OF HEARING ON MOTION re: 80 MOTION to Compel Responses to Discovery re: Punitive Damages, 83 MOTION to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt, 89 MOTION to Compel Production of Documents, 120 MOTION for Protective Order, 103 MOTION to Continue Trial Date, Objection to Affidavit of Attorney Fees: Motion Hearing RESCHEDULED for 1/24/2006 2:00 p.m. in Room 248 before Magistrate Judge Samuel Alba. (cas) (Entered: 01/05/2006)
152 REPLY to Response to 120 MOTION for Protective Order filed by Defendant Body Firm Aerobics (alt) (Entered: 01/10/2006)

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01/06/2006 01/10/2006 01/10/2006 01/18/2006
01/19/2006 01/20/2006
01/20/2006 01/20/2006 01/24/2006

153 MEMORANDUM in Opposition re: 129 MOTION to Compel Resumption of Deposition of Ronald O. Littlebrant, filed by Defendant Body Firm Aerobics (alt) (Entered: 01/10/2006)
154 RESPONSE to 149 MOTION for Attorney Fees filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/17/2006)
155 DECLARATION of Lisa M. McGarry filed by Andrea Liender (alt) (Entered: 01/17/2006)
156 MEMORANDUM in Opposition re 142 MOTION to Take Deposition MOTION for Extension of Time for Discovery Deadline for Limited Purpose of Taking the Depositions of Troy Viertel and Shannon Viertel McCarty, filed by Defendant Body Firm Aerobics (alt) (Entered: 01/20/2006)
157 REPLY to Response to 149 MOTION for Attorney Fees filed by Defendant Body Firm Aerobics (alt) (Entered: 01/20/2006)
158 REPLY to Response to 142 MOTION to Take Deposition MOTION for Extension of Time for Discovery Deadline for Limited Purpose of Taking the Depositions of Troy Viertel and Shannon Viertel McCarty filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/23/2006)
159 JOINT MOTION to Reconvene 30(b)(6) Deposition filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/23/2006)
160 MEMORANDUM in Support re 159 MOTION to Reconvene 30(b)(6) Deposition filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender (alt) (Entered: 01/23/2006)
161 Minute Entry for proceedings held before Judge Samuel Alba.After hearing from counsel, Court issued the following ruling. 80 Motion to Compel was granted-requested discovery is to be provided. Counsel are to meet and come up with a workable protective order. This information is to be used for the purposes of this proceedings only. Order relates to the defendant only. Mr. Hobbs to prepare an order. The 83 MOTION to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrandt filed by Body Firm Aerobics was denied Court amended the sanction for attorneys fees. The defendants are to pay attorneys fees in the amount of $1750 this was reduced from $3000. Court finds t 137 Motion to Quash to be moot, the motion for attorney fees was denied.118 MOTION to Quash Subpoena filed by Body Firm Aerobics is moot and the request for attorneys fees is also denied. Court denied 148 and 149 Motion for attorneys fees.120 MOTION for Protective Order filed by Body Firm Aerobics was granted. The motion 142 to Take Deposition and Motion for Extension of Time were granted. Depositions are to be completed by 2/24/06. The dispositive motion cut-off was extended to 3/1/06. 89 Motion to Compel Production of Documents filed by Body Firm Aerobics was taken under advisement. Court ordered the EEOC to provide 58 pages to him for an in camera inspection. They are to be submitted by 1/31/06. The depo of the EEOC is to be held on 1/25/06. If after the Court reviews the documents the deposition may be reopened as to the EEOC. Documents are to be sent directly to Judge Alba. Mr. Hobbs to prepare an order. Attorney for Plaintiff: Lincoln Hobbs and Lisa

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02/06/2006 02/22/2006 02/23/2006 02/24/2006 02/28/2006 03/01/2006 03/01/2006
03/01/2006 03/01/2006 03/01/2006

McGarry- rep intervenor plaintiff, Lucila G. Rosas - plaintiff cnsl, Attorney for Defendant Kathryn Balmforth and Maryanne Wood.(Court Reporter Electronic, Tape #4, 5, Log #5177-4288.) (ss, ) (Entered: 01/31/2006)
162 MEMORANDUM in Opposition re 159 MOTION to Reconvene 30(b)(6) Deposition filed by Defendant Body Firm Aerobics. (jmr ) (Entered: 02/10/2006)
164 REPLY to Response to 159 Joint MOTION to Reconvene 30(b)(6) Deposition filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender (alt) (Entered: 02/23/2006)
163 MOTION to Withdraw as Attorney filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Smith, C.) (Entered: 02/23/2006)
165 ORDER granting 163 Motion to for C. E. Smith to Withdraw as Attorney. Signed by Judge Tena Campbell on 2/24/06 (alt) (Entered: 02/24/2006)
166 **RESTRICTED DOCUMENT** TRANSCRIPT of Proceedings held on January 24, 2006(Transcript of Tape-Recorded Hearing on Various Motions) before Judge SAMUEL ALBA. Court Reporter: DAWN E. BRUNNER-HAHN. (asp, ) (Entered: 02/28/2006)
167 MOTION for Partial Summary Judgment filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 03/01/2006)
168 MEMORANDUM in Support re 167 MOTION for Partial Summary Judgment filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A-1 Deposition of Andrea Liender# 2 Exhibit A-2 - Deposition of Andrea Liender# 3 Exhibit A-3 - Deposition of Andrea Liender# 4 Exhibit A-4 - Deposition of Andrea Liender# 5 Exhibit B - 2nd Deposition of Troy Peterson, selected pages# 6 Exhibit C - Deposition of Ronald O. Littlebrant, selected pages# 7 Exhibit D Deposition of Scott Felsted, selected pages# 8 Exhibit E - Deposition of Mary Littlebrant, selected pages# 9 Exhibit F - Declaration of Ronald O. Littlebrant# 10 Exhibit G - Declaration of Rusty R. Hurd# 11 Exhibit H - 1st Deposition of Troy Peterson, selected pages# 12 Exhibit I - 05/16/01 Letter from Andrea Liender to Troy Peterson# 13 Exhibit J - 06/26/01 Interoffice Communication of Ron Littlebrant# 14 Exhibit K - 07/05/01 Memo from Andrea Liender# 15 Exhibit L - Depositin of Troy Viertel# 16 Exhibit M - Deposition of Laura Aston, selected pages# 17 Exhibit N - Deposition of Erin Allen, selected pages# 18 Exhibit O - Declaration of Mary Littlebrant# 19 Exhibit P - Time sheets of Erin Allen)(Balmforth, Kathryn) (Entered: 03/01/2006)
169 CERTIFICATE OF SERVICE re: 5th Supplementation to Rule 26(A)(1) Initial Disclosures by Andrea Liender (alt) (Entered: 03/02/2006)
170 MOTION for Partial Summary Judgment to Eliminate the Dfts Ellerth/Faragher Defense and for an Instruction to the Jury to Consider Award of Punitive Damages filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 03/02/2006)
171 MEMORANDUM in Support re 170 MOTION for Partial Summary Judgment filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 03/02/2006)

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03/01/2006 03/01/2006 03/31/2006 04/03/2006
04/03/2006
04/03/2006 04/04/2006 04/11/2006 04/11/2006

172 MOTION for Partial Summary Judgment and Order Finding That the Defendant and Related Entities are a Single Employer filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 03/02/2006)
173 MEMORANDUM in Support re 172 MOTION for Partial Summary Judgment filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 03/02/2006)
174 NOTICE OF HEARING ON MOTION re: 93Pla's Motion to Strike Expert Report: Motion Hearing set for 4/11/2006 at 10:00 AM in Room 230 before Judge Tena Campbell. (mjm) (Entered: 03/31/2006)
175 MEMORANDUM in Opposition re 172 MOTION for Partial Summary Judgment and Order Finding That the Defendant and Related Entities Are a Single Employer filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Declaration of Troy C. Peterson# 2 Exhibit B - Cited pages of 12/28/05 Deposition of Troy C. Peterson# 3 Exhibit C - Cited pages of Deposition of Scott Felsted# 4 Exhibit D - Civil No. 2:00CV00774, Memorandum in Opposition# 5 Exhibit E - Civil No. 2:00CV00774, Memorandum Opinion & Order)(Balmforth, Kathryn) (Entered: 04/03/2006)
176 MEMORANDUM in Opposition re 170 MOTION for Partial Summary Judgment to Eliminate Defendant's Ellerth/Faragher Defense and for an Order for an Instruction to the Jury to Consider an Award of Punitive Damages filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of Deposition of Ronda L. Hillam# 2 Exhibit B - 06/26/01 Memo of Ron Littlebrant# 3 Exhibit C - Cited pages of Deposition of Andrea Liender# 4 Exhibit D - Cited pages of Deposition of Troy Viertel# 5 Exhibit E - Gold's Gym Employee Handbook# 6 Exhibit F - Cited pages of 09/02/05 Deposition of Troy Peterson# 7 Exhibit G - Cited pages of 12/28/05 Deposition of Troy Peterson# 8 Exhibit H - Declaration of Troy C. Peterson# 9 Exhibit I - Cited pages of Deposition of Shannon Viertel McCarty# 10 Exhibit J - Cited pages of Deposition of Ronald O. Littlebrant# 11 Exhibit K - 07/05/01 Letter of Andrea Liender# 12 Exhibit L - Cited pages of Deposition of Erin Allen# 13 Exhibit M Declaration of Ronald O. Littlebrant# 14 Exhibit N - Cited pages of Deposition of Scott Felsted# 15 Exhibit O - Cited pages of Deposition of Laura Aston)(Balmforth, Kathryn) (Entered: 04/03/2006)
177 MEMORANDUM in Opposition re 167 MOTION for Partial Summary Judgment, filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender (alt) (Entered: 04/10/2006)
178 EXHIBITS filed by Andrea Liender re 177 Memorandum in Opposition to Motion. (Attachments: #(1) Exhibit 1-5; #(2) Exhibit 6-13; #(3) Exhibit 14-16; #(4) Exhibit 17-21)(alt) (Entered: 04/10/2006)
179 ORDER denying 93 Motion to Strike. Signed by Judge Tena Campbell on 4/11/06 (alt) (Entered: 04/11/2006)
180 NOTICE OF HEARING ON MOTION re: 167 Dft Body Firm Aerobics Motion for Partial Summary Judgment, 170 Motion for Partial Summary Judgment to Eliminate the dfts Ellerth/Faragher defense: Motion Hearing set for 6/6/2006 at 10:00 AM in Room 230 before Judge Tena Campbell. (mjm) (Entered: 04/11/2006)

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04/11/2006
04/11/2006 04/12/2006 04/12/2006
04/12/2006
04/13/2006 04/14/2006 04/14/2006 04/14/2006 04/14/2006 04/17/2006 04/17/2006

184 Minute Entry for proceedings held before Judge Tena Campbell : Motion Hearing held on 4/11/2006 re: Pla's Motion to Strike 48 Expert Report filed by Equal Employment Opportunity Commission. The Court denies pla's motion to strike expert report filed by EEOC. The Court strikes the second place trial setting of 6/12/2006. Cnsl have a first place trial setting for 9/25/2006. The Court instructs cnsl to have a meeting and set discovery deadline. Attorney for Plaintiff: Sally Shanley, Lincoln Hobbs-Intvp, Attorney for Defendant Mary Anne Wood.(Court Reporter Ray Fenlon.)(mjm) (Entered: 04/12/2006)
185 CERTIFICATE OF SERVICE by Andrea Liender re: 6th supplementation to Rule 26(a)(1) initial disclosures (alt) (Entered: 04/12/2006)
181 OBJECTIONS to "Stipulated" Unilateral Protective Order filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/12/2006)
182 OBJECTIONS to Proposed Order Compelling Responses to Plaintiff-Intervenor's Discovery Respecting Punitive Damages filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of 30(b)(6) Deposition of Body Firm Aerobics, Inc.# 2 Exhibit B - Cited pages of Transcript of Tape-Recorded Hearing on Various Motions, January 24, 2006)(Balmforth, Kathryn) (Entered: 04/12/2006)
183 AMENDED NOTICE OF HEARING ON MOTION re: 167 - Dft Body Firm Aerobics Motion for Partial Summary Judgment, 170 - Motion for Partial Summary Judgment to Eliminate the dfts Ellerth/Faragher defense: Motion Hearing RESET for 6/5/2006 at 3:30 PM in Room 230 before Judge Tena Campbell.(mjm) (Entered: 04/12/2006)
186 NOTICE of Filing Original Declaration of Erin Allen by Equal Employment Opportunity Commission re 178 Exhibits 17 (Attachments: # 1 Exhibit Declaration of Erin Allen)(Shanley, Sally) (Entered: 04/13/2006)
187 WRITTEN ORDER FOLLOWING [161] Minute Entry denying Motion Reconsideration and granting Motion for Protective Order (oral order of 1/24/06). Signed by Judge Samuel Alba on 4/14/06 (alt) (Entered: 04/17/2006)
188 WRITTEN ORDER FOLLOWING [161] Minute Entry granting Motion to Take Deposition, and Motion for Extension of Time (oral order of 1/24/06). Signed by Judge Samuel Alba on 4/14/06 (alt) (Entered: 04/17/2006)
189 WRITTEN ORDER FOLLOWING [161] Minute Entry Finding as Moot Motion to Quash (oral order of 1/24/06). Signed by Judge Samuel Alba on 4/14/06 (alt) (Entered: 04/17/2006)
190 WRITTEN ORDER FOLLOWING [161] Minute Entry Finding as Moot Motion to Quash (oral order of 1/24/06). Signed by Judge Samuel Alba on 4/14/06 (alt) (Entered: 04/17/2006)
191 REPLY to Response to 170 MOTION for Partial Summary Judgment filed by Intervenor Plaintiff Andrea Liender (Attachments: #(1) Exhibits 1-10)(alt) (Entered: 04/18/2006)
192 REPLY to Response to 172 MOTION for Partial Summary Judgment filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 04/18/2006)

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04/19/2006 04/21/2006 04/24/2006 04/25/2006
04/27/2006 04/27/2006 04/27/2006 05/01/2006
05/01/2006 05/04/2006 05/04/2006

193 MOTION for Extension of Time to File Response/Reply as to 167 MOTION for Partial Summary Judgment filed by Defendant Body Firm Aerobics. (Attachments: # 1 Text of Proposed Order ORDER EXTENDING TIME TO FILE REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT)(Balmforth, Kathryn) (Entered: 04/19/2006)
194 MEMORANDUM in Support re 193 MOTION for Extension of Time to File Response/Reply as to 167 MOTION for Partial Summary Judgment filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/19/2006)
195 ORDER granting 193 Motion for Extension of Time to File Response/Reply re 167 MOTION for Partial Summary Judgment: Reply Memo due by 4/27/2006. Signed by Judge Tena Campbell on 4/21/06 (alt) (Entered: 04/21/2006)
196 WRITTEN ORDER following [161] Minute Entry granting on Motion to Compel (oral order of 1/24/06). Signed by Judge Samuel Alba on 4/14/06 (alt) (Entered: 04/24/2006)
197 NOTICE OF HEARING ON MOTIONS MOTION for Partial Summary Judgment filed by Body Firm Aerobics - #167, MOTION for Partial Summary Judgment filed by Andrea Liender - #170, MOTION for Partial Summary Judgment filed by Andrea Liender - #172: Motions will be heard on 6/5/2006 at 3:30 PM in Room 230 before Judge Tena Campbell. (mjm) (Entered: 04/25/2006)
198 ORDER RE: Expert Deposition & Expert Reports. Signed by Judge Tena Campbell on 4/26/06 (alt) (Entered: 04/27/2006)
199 MOTION for Extension of Time to File Response/Reply as to 167 MOTION for Partial Summary Judgment filed by Defendant Body Firm Aerobics. (Attachments: # 1 Text of Proposed Order)(Balmforth, Kathryn) (Entered: 04/27/2006)
200 MEMORANDUM in Support re 199 MOTION for Extension of Time to File Response/Reply as to 167 MOTION for Partial Summary Judgment filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/27/2006)
201 OBJECTIONS to 187 Order - Written Order Following Oral Order on Motion filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of Transcript of 01-24-06 Hearing# 2 Exhibit B - Order Denying Motion to Reconsider Ruling on Motion to Compel Resumption of Deposition of Ronald O. Littlebrant and Granting Defendant's Motion for Protective Order)(Balmforth, Kathryn) (Entered: 05/01/2006)
202 ORDER granting 199 Motion for Extension of Time to File Reply Memo re 167 MOTION for Partial Summary Judgment: Reply due by 5/4/2006. Signed by Judge Tena Campbell on 5/1/06 (alt) (Entered: 05/02/2006)
203 **RESTRICTED DOCUMENT** RETURN OF SERVICE Executed for Subpoena served on Dr. David J. Cherrington on 4/26/06, filed by Plaintiff Equal Employment Opportunity Commission (alt) (Entered: 05/04/2006)
204 NOTICE OF CONVENTIONAL FILING of Reply Memorandum in Support of Motion for Partial Summary Judgment filed by Defendant Body Firm Aerobics (Balmforth, Kathryn) (Entered: 05/04/2006)

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05/10/2006
05/10/2006 05/11/2006 05/11/2006 05/15/2006

207 REPLY to Response to 167 MOTION for Partial Summary Judgment filed by Defendant Body Firm Aerobics. (Attachments: #(1) Argument, #(2) Exhibit Q-U, #(3) Exhibit V, #(4) Exhibit W-Z, #(5) Exhibit AA-HH)(alt) (Entered: 05/05/2006)
205 NOTICE OF HEARING: (Notice generated by Mary Jane McNamee) Miscellaneous Hearing set for 10/11/2006 at 10:00 AM in Room 230. The Court will hear Defendants Objection to Order Denying Motion to Reconsider on Motion to Compel Resumption of Deposition of Ronald O. Littlebrant and Granting Defendant's Motion for Protective Order. (mjm) (Entered: 05/05/2006)
206 AMENDED NOTICE OF HEARING: (Notice generated by Mary Jane McNamee) Miscellaneous Hearing reset for 5/11/2006 at 10:00 AM in Room 230. (Please disregard previous notice, which listed the hearing for 10/11/2006 at 10:00 a.m.)(mjm, ) (Entered: 05/05/2006)
208 OBJECTIONS to 196 Order - Written Order Following Oral Order on Motion to Compel Responses to Plaintiff-Intervenor's Discovery Respecting Punitive Damages filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A Magistrate Judge Alba's Order Compelling Responses to Plaintiff-Intervenor's Discovery Respecting Punitive Damages# 2 Exhibit B - Cited page of January 24, 2006 Hearing Transcript# 3 Exhibit C - Cited page of Body Firm's 30(b)(6) Deposition Transcript# 4 Exhibit D - Unpublished case: Morris v. Swank Educational Enterprises, Inc., 2004 WL 1899987)(Balmforth, Kathryn) (Entered: 05/08/2006)
209 AMENDED NOTICE OF HEARING ON MOTION The Court will hear the following Motions and Objections: MOTION for Partial Summary Judgment filed by Body Firm Aerobics - #167; MOTION for Partial Summary Judgment filed by Andrea Liender - #170; MOTION for Partial Summary Judgment filed by Andrea Liender - #172; Defendant's Objection to Order Denying Motion to Reconsider on Motion to Compel Resumption of Deposition of Ronald O. Littlebrant and Granting Defendant's Motion for Protective Order-#201; AND Defendant's Objection to Magistrate's Order Compelling Responses to Plaintiff-Intervenor's Discovery Respecting Punitive Damages-#208, on 6/5/2006 at 3:30 PM in Room 230 before Judge Tena Campbell. Please Note: Hearing date of 5/11/2006 at 10:00 a.m. has been stricken from the Court's calendar(mjm, ) (Entered: 05/10/2006)
210 EXHIBITS filed by Body Firm Aerobics re 207 Reply Memorandum/Reply to Response to Motion. (Balmforth, Kathryn) (Entered: 05/10/2006)
211 EXHIBITS filed by Andrea Liender re 192 Reply Memorandum/Reply to Response to Motion. (Attachments: # 1 Exhibit Exhibit 2)(McGarry, Lisa) (Entered: 05/11/2006)
212 EXHIBITS filed by Andrea Liender re 192 Reply Memorandum/Reply to Response to Motion. (Attachments: # 1 Exhibit #2)(McGarry, Lisa) (Entered: 05/11/2006)
213 RESPONSE re 187 Order - Written Order Following Oral Order on Motion, 201 Objections,, filed by Intervenor Plaintiff Andrea Liender and Plaintiff EEOC. (Hobbs, Lincoln) Modified on 5/15/2006: added EEOC as joint filer of pleading

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(alt) (Entered: 05/15/2006)
214 Modification of Docket: Error: Entry did not idicate that response is filed by two different parties. Correction: Added EEOC as a filer of the pleading, re: 213 Response (alt) (Entered: 05/15/2006)
215 RESPONSE re 208 Objections,,, 196 Order - Written Order Following Oral Order on Motion, Compelling Responses to Plaintiff-Intervenor's Discovery Respecting Punitive Damages filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 05/18/2006)
216 MOTION to Strike Inadmissible Evidence filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 05/19/2006)
217 MEMORANDUM in Support re 216 MOTION to Strike Inadmissible Evidence filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Martinez v. CO2 Services, Inc., 12 Fed.Appx. 689# 2 Exhibit B - Cited pages of Deposition of Andrea Liender# 3 Exhibit C - Cited pages of Deposition of Troy Viertel# 4 Exhibit D - Cited pages of Deposition of Erin Allen# 5 Exhibit E Roy v. United States Department of Agriculture, 115 Fed.Appx. 198# 6 Exhibit F - Cited pages of Deposition of Laura Aston# 7 Exhibit G - Declaration of Erin Allen# 8 Exhibit H - Declaration of Andrea Liender# 9 Exhibit I - Cited pages of Deposition of Ronda Hillam# 10 Exhibit J - Cited pages of Deposition of Shannon Viertel McCarty# 11 Exhibit K - Cited pages of Deposition of Scott Felsted# 12 Exhibit L - Cited pages of Deposition of Lynette Felsted# 13 Exhibit M - Shelter Mortgage Corporation v. Castle Mortgage Company, L.C., 117 Fed.Appx. 6# 14 Exhibit N - Cited pages of Deposition of Troy C. Peterson (9/2/05)# 15 Exhibit O - Cited pages of Deposition of Ronald O. Littlebrant)(Balmforth, Kathryn) (Entered: 05/19/2006)
218 Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages filed by Defendant Body Firm Aerobics. (Attachments: # 1 Text of Proposed Order)(Balmforth, Kathryn) (Entered: 05/19/2006)
219 REPLY BRIEF re 201 Objections, to Magistrate's Order Compelling Resumption of the Deposition of Ronald O. Littlebrant filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 05/30/2006)
220 MOTION to Strike 219 Reply Brief filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 05/31/2006)
221 MEMORANDUM in Support re 220 MOTION to Strike 219 Reply Brief filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 05/31/2006)
222 MOTION to Compel responses to outstanding discovery and exclude evidence filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 05/31/2006)
223 MEMORANDUM in Support re 222 MOTION to Compel responses to outstanding discovery and exclude evidence filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1

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Exhibit # 2 Exhibit # 3 Exhibit)(Hobbs, Lincoln) (Entered: 05/31/2006)
224 AFFIDAVIT of Lisa M. McGarry in Support re 222 MOTION to Compel responses to outstanding discovery and exclude evidence filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 05/31/2006)
225 AFFIDAVIT of Lincoln W. Hobbs in Support re 222 MOTION to Compel responses to outstanding discovery and exclude evidence filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 05/31/2006)
226 MOTION to Strike 207 Reply Memorandum/Reply to Response to Motion filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Affidavit)(Hobbs, Lincoln) (Entered: 05/31/2006)
227 MEMORANDUM in Support re 245 MOTION to Strike 207 Reply Memorandum/Reply to Response to Motion, MOTION for Extension of Time Respond to Motion for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) Modified on 6/7/2006: relinked this entry to support the correct motion #245 (alt) (Entered: 05/31/2006)
244 NOTICE OF DEFICIENCY re: 226 MOTION to Strike 207 Reply Memorandum/Reply to Response to Motion. The document contains two separate requests for ruling and filer should have selected both Motion Reliefs (Strike and Extension of Time For Response/Reply). The court asks the filer of the original document to refile the pleading using both motion reliefs. The new pleading will receive a new document number on the docket (alt) (Entered: 06/07/2006)
246 Modification of Docket: Error: Memo was linked to incorrectly filed motion #226. Correction: Memo relinked to correctly refiled Motion #245, re: 227 Memorandum in Support of Motion (alt) (Entered: 06/07/2006)
228 MEMORANDUM DECISION & ORDER affirming Magistrate Orders 187 and 196; dismissing Objections 201 and 208. Signed by Judge Tena Campbell on 6/1/06 (alt) (Entered: 06/01/2006)
229 MOTION to Take Deposition from Rusty Hurd and Kandi Negrette, MOTION for Extension of Time Discovery for one month filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 06/01/2006)
230 MEMORANDUM in Support re 229 MOTION to Take Deposition from Rusty Hurd and Kandi Negrette MOTION for Extension of Time Discovery for one month filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Exhibits A and B)(Hobbs, Lincoln) (Entered: 06/01/2006)
231 MOTION for Extension of Time File Declaration for one week filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 06/01/2006)

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06/05/2006
06/05/2006
06/05/2006

232 MEMORANDUM in Support re 231 MOTION for Extension of Time File Declaration for one week filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 06/01/2006)
233 AFFIDAVIT of Lincoln W. Hobbs in Support re 231 MOTION for Extension of Time File Declaration for one week filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 06/01/2006)
234 AFFIDAVIT of Ashley Jensen in Opposition re 167 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (McGarry, Lisa) (Entered: 06/02/2006)
235 AFFIDAVIT of Andrea J. Liender in Opposition re 167 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (McGarry, Lisa) (Entered: 06/02/2006)
236 AFFIDAVIT of Ashley Jensen in Opposition re 167 MOTION for Partial Summary Judgment (signed cert/mailing) filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (McGarry, Lisa) (Entered: 06/02/2006)
237 MOTION to Strike 236 Affidavit in Opposition to Motion of Ashley Jensen filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 06/05/2006)
238 MEMORANDUM in Support re 237 MOTION to Strike 236 Affidavit in Opposition to Motion of Ashley Jensen filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of Deposition of Scott Felsted# 2 Exhibit B - Utah Dept. of Commerce Business Entity Searches# 3 Exhibit C Cited pages of Deposition of Mary Littlebrant)(Balmforth, Kathryn) (Entered: 06/05/2006)
239 MEMORANDUM in Opposition re 245 MOTION to Strike 207 Reply Memorandum/Reply to Response to Motion, MOTION for Extension of Time Respond to Motion for Summary Judgment, filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Defendant's First Supplemental Disclosures Under Rule 26(a)(1)# 2 Exhibit B - Cited pages of Deposition of Ronald O. Littlebrant)(Balmforth, Kathryn) Modified on 6/7/2006: relinked this opposition to corrected motion #245 (alt) (Entered: 06/05/2006)
240 MEMORANDUM in Opposition re 229 MOTION to Take Deposition from Rusty Hurd and Kandi Negrette MOTION for Extension of Time Discovery for one month filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Defendant's First Supplemental Disclosures Under Rule 26(a)(1)# 2 Exhibit B Cited pages of Deposition of Ronald O. Littlebrant)(Balmforth, Kathryn) (Entered: 06/05/2006)
241 MEMORANDUM in Opposition re 231 MOTION for Extension of Time File Declaration for one week filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Defendant's First Supplemental Disclosures Under Rule 26(a)(1)# 2 Exhibit B - Cited pages of Deposition of Ronald O. Littlebrant)(Balmforth,

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Kathryn) (Entered: 06/05/2006)
242 MOTION to Strike Paragraphs 6, 7, 8, 10, 11, 12, 13 and 14 of Third Declaration of Andrea Liender filed by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 06/05/2006)
243 MEMORANDUM in Support re 242 MOTION to Strike Paragraphs 6, 7, 8, 10, 11, 12, 13 and 14 of Third Declaration of Andrea Liender filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Declaration of John Christopher Durfee# 2 Exhibit B - Declaration of Troy Peterson)(Wood, Mary Anne) (Entered: 06/05/2006)
247 Modification of Docket: Error: Memo was linked to incorrectly filed motion #226. Correction: Memo relinked to correctly refiled Motion #245, re: 239 Memorandum in Opposition to Motion (alt) (Entered: 06/07/2006)
250 Minute Entry for proceedings held before Judge Tena Campbell : Motion Hearing held on 6/5/2006. The Court hears oral argument and therefore denies Pla's motion to strike reply in support of dft's objection to Magistrate's Order compelling Resumption of the deposition of Ronald Littlebrant. The Court will issue an order. Attorney for Plaintiff: Sally Shanley, Lincoln Hobbs, Lisa McGarry, Attorney for Defendant Kathryn Balmforth, Mary Anne Wood.(Court Reporter Ray Fenlon.)(mjm) (Entered: 06/26/2006)
245 MOTION for Extension of Time Respond to Motion for Summary Judgment, MOTION to Strike 207 Reply Memorandum/Reply to Response to Motion filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 06/07/2006)
248 ORDER denying as moot 220 Motion to Strike 219 Reply Brief. Signed by Judge Tena Campbell on 6/12/06 (alt) (Entered: 06/12/2006)
249 MEMORANDUM in Opposition re 222 MOTION to Compel responses to outstanding discovery and exclude evidence filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Expert Report and Vitae of Dr. David Cherrington# 2 Exhibit B (Part 1) - 1st Half of Deposition Transcript of David Cherrington# 3 Exhibit B (Part 2) - 2nd Half of Deposition Transcript of David Cherrington# 4 Exhibit C - Defendant's First Supplemental Disclosures Under Rule 26(a)(1)# 5 Exhibit D - Cited Pages of Deposition of Scott Felsted)(Balmforth, Kathryn) (Entered: 06/19/2006)
251 NOTICE of Citation of Supplemental Authority by Equal Employment Opportunity Commission re 177 Memorandum in Opposition to Motion (Shanley, Sally) (Entered: 06/27/2006)
252 RESPONSE re 251 Notice (Other), of EEOC's Citation of Supplemental Authority filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 06/29/2006)
253 ORDER granting in part and denying in part 159 Motion to Reconvene Deposition (GRANTED) and for Sanctions (DENIED). Signed by Judge Samuel Alba on 6/29/06 (alt) (Entered: 06/30/2006)

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254 REPLY to Response to Motion re 222 MOTION to Compel responses to outstanding discovery and exclude evidence filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Hearing Transcript# 2 Exhibit Declaration# 3 Exhibit Memorandum Decision and Order)(McGarry, Lisa) (Entered: 07/03/2006)
255 MOTION for Leave to File Surreply Memorandum filed by Defendant Body Firm Aerobics. (Attachments: # 1 Proposed Surreply Memorandum# 2 Text of Proposed Order)(Balmforth, Kathryn) (Entered: 07/05/2006)
256 MEMORANDUM in Support re 255 MOTION for Leave to File Surreply Memorandum filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 07/05/2006)
257 RESPONSE to Motion re 255 MOTION for Leave to File Surreply Memorandum filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Memorandum Decision and Order)(McGarry, Lisa) (Entered: 07/06/2006)
258 ORDER granting 255 Motion for Leave to File Surreply Memo. Signed by Judge Samuel Alba on 7/10/06 (alt) (Entered: 07/11/2006)
259 MEMORANDUM in Opposition re 222 MOTION to Compel responses to outstanding discovery and exclude evidence (SURREPLY) filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Order Compelling Responses to Plaintiff-Intervenor's Discovery Respecting Punitive Damages)(Balmforth, Kathryn) (Entered: 07/11/2006)
260 NOTICE of Citation of Supplemental Authority by Body Firm Aerobics re 170 Motion for Partial Summary Judgment to Eliminate Ellerth/Faragher Defense, 222 Motion to Compel Responses to Outstanding Discovery (Attachments: # 1 Exhibit A - Order Granting Motion to Dismiss, Case No. 2:06-CV-00197 PGC# 2 Exhibit B - Memorandum Opposing Deseret Laboratories International's Renewed Motion to Dismiss, Case No. 2:06-CV-00197 PGC)(Balmforth, Kathryn) Modified on 7/19/2006: removed links to memoranda and created links to related motions instead (alt) (Entered: 07/12/2006)
263 Modification of Docket: Error: Document was linked to memoranda instead of motions. Correction: Removed links to memoranda and created links to related motions 170 and 222, re: 260 Notice of Citation of Supplemental Authority (alt) (Entered: 07/19/2006)
261 **RESTRICTED DOCUMENT** TRANSCRIPT of Proceedings: Motions hearing held on 6/5/06 before Judge Tena Campbell. Court Reporter: Raymond P. Fenlon (alt) (Entered: 07/13/2006)
262 MEMORANDUM DECISION & ORDER granting in part and denying in part 167 Motion for Partial Summary Judgment: Specifically, summary judgment is granted for Body Shop on Ms. Lienders claims of retaliation and constructive discharge, but is denied on Ms. Allens claims of disparate treatment and constructive discharge (Additionally, Body Firms request for an order holding punitive damages inapplicable to this case is denied); denying 170 Motion for Partial Summary Judgment; denying 172 Motion for Partial Summary Judgment; denying 216 Motion to Strike; granting 218 Motion for Leave to File Excess

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Pages; denying 231 Motion for Extension of Time; denying 237 Motion to Strike; denying 242 Motion to Strike; denying 245 Motion for Extension of Time; denying 245 Motion to Strike. Signed by Judge Tena Campbell on 7/13/06 (alt) (Entered: 07/14/2006)
264 MOTION for Protective Order filed by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 07/25/2006)
265 MEMORANDUM in Support re 264 MOTION for Protective Order filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - July 11, 2006 Letter from Lisa M. McGarry to Mary Anne Q. Wood# 2 Exhibit B - Notices of Deposition# 3 Exhibit C - July 14, 2006 Letter to Mary Anne Q. Wood to Lisa McGarry# 4 Exhibit D - July 25, 2006 Letter from Lincoln W. Hobbs to Mary Anne Q. Wood and Sally C. Shanley# 5 Exhibit E - Excerpt from 30(b)(6) Deposition of Body Firm (Troy Peterson))(Wood, Mary Anne) (Entered: 07/25/2006)
266 MEMORANDUM in Opposition re 264 MOTION for Protective Order filed by Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Deposition of Troy Peterson)(Hobbs, Lincoln) (Entered: 07/25/2006)
267 DOCKET TEXT ORDER denying 264 Motion for Protective Order. Signed by Judge Samuel Alba on 7/26/06.No attached document. (cas) (Entered: 07/26/2006)
268 MOTION for Entry of Judgment filed by Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 07/26/2006)
269 MEMORANDUM in Support re 268 MOTION for Entry of Judgment filed by Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 07/26/2006)
270 MOTION for Protective Order Pursuant to Rule 26(c)(6) filed by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 07/31/2006)
271 MEMORANDUM in Support re 270 MOTION for Protective Order Pursuant to Rule 26(c)(6) filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Certification of Compliance Pursuant to Rule 26(c))(Wood, Mary Anne) (Entered: 07/31/2006)
272 MEMORANDUM in Opposition re 270 MOTION for Protective Order Pursuant to Rule 26(c)(6) filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Unpublished case SEC v. Dowdell)(McGarry, Lisa) (Entered: 08/07/2006)
273 MOTION to Expedite Trial Status Conference, MOTION to Continue Trial filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Def's Answers to P-Intervenor's First Interrogatories# 2 Exhibit Def's Response to EEOC's First Req. Production of Documents)(McGarry, Lisa) (Entered: 08/11/2006)
274 NOTICE OF HEARING ON MOTION re: 229 MOTION to Take Deposition from Rusty Hurd and Kandi Negrette MOTION for Extension of Time Discovery for one month, 222 MOTION to Compel responses to outstanding discovery and exclude evidence: Motion Hearing set for 8/29/2006 10:30 a.m. in Courtroom 248 before Magistrate Judge Samuel Alba. (cas) (Entered: 08/11/2006)

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08/15/2006 08/16/2006
08/16/2006 08/17/2006 08/23/2006 08/25/2006 08/25/2006 08/25/2006
08/25/2006 08/29/2006
08/29/2006

275 MEMORANDUM in Opposition re 268 MOTION for Entry of Judgment filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 08/14/2006)
276 MEMORANDUM in Opposition re 273 MOTION to Expedite Trial Status Conference MOTION to Continue Trial MOTION to Continue Trial filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 08/15/2006)
277 CERTIFICATE OF SERVICE by Body Firm Aerobics of (1) Defendant's 1st Supplemental Response to EEOC's 1st Request for Production of Documents, and (2) Defendant's 1st Supplemental Answer to Plaintiff-Intervenor's 1st Set of Interrogatories (Balmforth, Kathryn) (Entered: 08/15/2006)
279 STIPULATED PROTECTIVE ORDER. Signed by Judge Samuel Alba on 8/15/06. (asp, ) (Entered: 08/16/2006)
278 NOTICE OF HEARING ON MOTION re: 270 MOTION for Protective Order Pursuant to Rule 26(c)(6), along with previously noticed motions: Motion Hearing set for 8/29/2006 10:30 a.m. in Courtroom 248 before Magistrate Judge Samuel Alba. (cas) (Entered: 08/16/2006)
280 CERTIFICATE OF SERVICE by Body Firm Aerobics of Defendant's Second Supplemental Answers to Plaintff-Intervenor's First Set of Interrogatories (Balmforth, Kathryn) (Entered: 08/16/2006)
281 REPLY to Response to Motion re 270 MOTION for Protective Order Pursuant to Rule 26(c)(6) filed by Defendant Body Firm Aerobics. (Attachments: # 1 Appendix Unpublished Cases)(Balmforth, Kathryn) (Entered: 08/17/2006)
282 REPLY to Response to Motion re 268 MOTION for Entry of Judgment filed by Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Partial Transcript Hearing on Jan 24, 2006)(McGarry, Lisa) (Entered: 08/23/2006)
283 Proposed Exhibit List (Defendant's Rule 26(a)(3) Pretrial Disclosures) by Defendant Body Firm Aerobics.. (Balmforth, Kathryn) (Entered: 08/25/2006)
284 Proposed Witness List by Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 08/25/2006)
285 REPLY to Response to Motion re 273 MOTION to Expedite Trial Status Conference MOTION to Continue Trial MOTION to Continue Trial filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (McGarry, Lisa) (Entered: 08/25/2006)
286 Proposed Witness List by Equal Employment Opportunity Commission, Andrea Liender. (Shanley, Sally) (Entered: 08/25/2006)
287 ORDER granting 273 MOTION to Expedite Status Conference MOTION to Continue Trial. Trial date is stricken. Status Conference set for 9/6/2006 03:30 PM before Judge Tena Campbell. Signed by Judge Tena Campbell on 8/29/06 (alt) (Entered: 08/29/2006)
292 Minute Entry for proceedings held before Judge Samuel Alba. After hearing from counsel, Court finds that the motion to compel as it relates to Mr. Cherrington is moot. Court granted the 222 Motion to Compel responses to outstanding discovery and exclude evidence. Defendant counsel are to provide the backup

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09/06/2006
09/08/2006 09/11/2006 09/13/2006 09/18/2006

documents by 12:00pm on 8/30/06. Management contracts do not need to be produced if they do not exist. Court ordered that tax returns for entities that existed while Ms. Leander was employed are to be produced. The relevant period is 1999-present. Profit and loss statements are also to be produced. The records of all prior employees who were discharged are to be provided by 9/8/06 at 4:00pm. Court granted in part and denied in part the 229 MOTION to Take Deposition from Rusty Hurd and Kandi Negrette Counsels request to depose Mr. Hurd is denied and granted as to Ms. Negrette. Ms. Negrettes deposition is to be taken by 9/8/06. Mr. Hobbs to prepare an order. Defendants filed a motion for a protective order relating to certain portions of depositions that have been taken. This order was granted as it relates to pages 69-72 of the deposition taken 8/29, and pages 38-43 of the deposition taken 7/26 of Mr. Lilibrant. The order was also granted as to pages 28-35 of the 30(b)(6) depositions taken on 7/26. This order does not prevent plaintiff from contacting witnessess. This information is not to be made public or used in any court filings. Ms. Balmforth to prepare an order. Court addressed the letter submitted by defense counsel re: in camera review of documents submitted by Ms. Shanley. Court ordered EEOC to disclose these documents to the defenddants for purposes of this litigation only by 9/8/06. This is to be done under a court order. Documents were returned to Ms. Shanley. Court denied the motion to continue the trial, Counsel may contact Judge Campbell regarding a continuance. Court ordered that the sanctions imposed on defense counsel by the court on 1/24/06 are to be paid to Mr. Hobbs by 9/8/06 at 4:00pm. Written Order to follow oral order: Yes.Attorney for Plaintiff: Sally Shanley Lincoln Hobbs, Attorney for Defendant Katherine Balmforth. Court Reporter: Electronic.(Time Start: 8:50, Time End: 57:41, Room 248.) (ss, ) (Entered: 09/15/2006)
288 Minute Entry for proceedings held before Judge Tena Campbell : Status Conference held on 9/6/2006. The Court hears oral argument on the pending motion. Dft's cnsl will file their objection to the Magistrate Order by 9/20/2006; Pla will file response by 9/27/2006; Dft's reply is due on 10/5/2006. A Motion Hearing set for 10/16/2006 at 2:30 PM in Room 230 before Judge Tena Campbell. A first place 5 day jury trial is set for 4/16/2007 at 8:30 a.m. A final pretrial conference is set for 3/22/2007 at 2:30 p.m. An order will be issued. Attorney for Plaintiff: Sally Shanley, Lincoln Hobbs, Lisa McGarry, Attorney for Defendant Kathryn Balmforth, Mary Anne Wood. Court Reporter: Ray Fenlon.(mjm) (Entered: 09/07/2006)
289 CERTIFICATE OF SERVICE by Body Firm Aerobics of Defendant's First Supplementation of its Answers to Plaintiff's First Set of Interrogatories (Balmforth, Kathryn) (Entered: 09/08/2006)
290 WRITTEN ORDER following [288] Status Conference, setting Motion Hearing and Trial Deadlines (oral order of 9/6/06). Signed by Judge Tena Campbell on 9/11/06 (alt) (Entered: 09/11/2006)
291 CERTIFICATE OF SERVICE by Body Firm Aerobics of Protective Order Pursuant to Rule 26(c)(6) (Balmforth, Kathryn) (Entered: 09/13/2006)
Set/Reset Hearings: Final Pretrial Conference set for 3/22/2007 AT 2:30 PM in Room 230 before Judge Tena Campbell.First Place 5 Day Jury Trial set for 4/16/2007 at 8:30 AM in Room 230 before Judge Tena Campbell. (mjm, )

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09/20/2006
09/20/2006 09/27/2006 09/27/2006 10/03/2006 10/03/2006 10/06/2006

(Entered: 09/18/2006)
293 MOTION to Set Aside 262 Order & Memorandum Decision on Motion for Partial Summary Judgment filed by Intervenor Plaintiff Andrea Liender (alt) (Entered: 09/20/2006)
294 **SEALED DOCUMENT** SEALED MEMORANDUM IN SUPPORT re: 293 MOTION to Set Aside 262 Order & Memorandum Decision on Motion for Partial Summary Judgment filed by Intervenor Plaintiff Andrea Liender (Attachments: # (1) Appendix 1, #(2) Exhibits 1-2, #(3) Exhibits 3-14)(alt) (Entered: 09/20/2006)
295 OBJECTIONS to [292] Order on Motion to Compel,,,,,,,,,, Order on Motion to Take Deposition,,,,,,,,,, Motion Hearing,,,,,,,,, [Specifically Objecting to Magistrate's Order to Produce Tax Returns] filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Minute Entry for hearing held August 29, 2006)(Balmforth, Kathryn) (Entered: 09/20/2006)
296 OBJECTIONS to [292] Order on Motion to Compel,,,,,,,,,, Order on Motion to Take Deposition,,,,,,,,,, Motion Hearing,,,,,,,,, [Specifically Objecting to Magistrate's Order Regarding Payment of Sanctions] filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 09/20/2006)
297 RESPONSE re 295 Objections,, re Tax Returns filed by Plaintiff Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 09/27/2006)
298 RESPONSE Defendant's Objection to Magistrate's Order Regarding Payment of Sanctions filed by Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Affidavit of Lisa McGarry)(McGarry, Lisa) (Entered: 09/27/2006)
299 REPLY BRIEF re 295 Objections, (to Magistrate's Order to Produce Tax Returns) filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 10/03/2006)
300 REPLY BRIEF re 296 Objections, (to Magistrate's Order Regarding Payment of Sanctions) filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 10/03/2006)
301 MEMORANDUM in Opposition re 293 MOTION to Set Aside 262 Memorandum Decision,,,, Order on Motion for Partial Summary Judgment,,,,,,,,,,,, Order on Motion to Strike,,,, Order on Motion for Leave to File Excess Pages,,,, Order on Motion for Extension of Time,,,, filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Juarez v. Utah Dept. of Health, 2006 WL 2623905 (D. Utah)# 2 Exhibit B - Zelnick v. Fashion Institute of Technology, 2006 WL 2623923 (2nd Cir.)# 3 Exhibit C (Part 1) - Carmellino v. District 20, New York City Dept. of Educ., 2006 WL 2583019 (S.D.N.Y.)# 4 Exhibit C (Part 2) - Carmellino v. District 20, New York City Dept. of Educ., 2006 WL 2583019 (S.D.N.Y.)# 5 Exhibit D - Devin v. Schwan's Home Service, Inc., 2006 WL 2590611 (D.Minn.)# 6 Exhibit E - Beaumont v. Texas Dept. of Criminal Justice, 2006 WL 2642606 (E.D.Tex.)# 7 Exhibit F - Gomez v. Laidlaw Transit, Inc., 2006 WL 2806591 (D.Conn.)# 8 Exhibit G - Norris v. Principi, 2006 WL 2355591 (N.D.Ill.)# 9 Exhibit H - Murry v. Gonzales, 2006 WL 2506963 (M.D.Fla.)# 10 Exhibit I - Breech v. Scioto County Regional Water Dist. #1, 2006 WL 2422924 (S.D.Ohio)# 11 Exhibit J - Deters v. Rock Tenn Co.,

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10/19/2006 12/14/2006 01/12/2007 01/12/2007 01/12/2007
01/16/2007

Inc., 2006 WL 2711683 (S.D.Ohio)# 12 Exhibit K - Molina v. Equistar Chemicals, L.P., 2006 WL 1851834 (S.D.Tex.)# 13 Exhibit L - Cited pages of Deposition of Ronald O. Littlebrant# 14 Exhibit M - Cited pages of Deposition of Mary Littlebrant)(Balmforth, Kathryn) (Entered: 10/06/2006)
302 ERRATA to 301 Memorandum in Opposition to Motion filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit N - Cited page of Deposition of Andrea Liender)(Balmforth, Kathryn) Modified on 10/10/2006: added link to related motion 293 (alt) (Entered: 10/09/2006)
303 Modification of Docket: Error: Document was not linked to related motion. Correction: created link to motion 293, re: 302 Errata (alt) (Entered: 10/10/2006)
304 WRITTEN PROTECTIVE ORDER PURSUANT TO RULE 26(c)(6) (depositions) following ruling of [292] Minute Entry (oral order of 8/29/06). Signed by Judge Samuel Alba on 10/11/06 (alt) (Entered: 10/12/2006)
306 Minute Entry for proceedings held before Judge Tena Campbell : Miscellaneous Hearing held on 10/16/2006. The Court hears the objections filed to the order of Magistrate Judge Alba's minute entry #292, which was followed by written order #304. The Court affirms both orders of Judge Alba. Mr. Hobbs will prepare and submit an order, after submitting order to opposing cnsl to approve as to form. Attorney for Plaintiff: Sally Shanley; Intv Pla- Lincoln Hobbs, Lisa McGarry, Attorney for Defendant Kathryn Balmforth. Court Reporter: Ray Fenlon.(mjm) (Entered: 11/29/2006)
305 ORDER denying 293 Motion to Set Aside 262 Order & Memorandum Decision. Signed by Judge Tena Campbell on 10/19/06 (alt) (Entered: 10/19/2006)
307 ORDER AFFIRMING MAGISTRATE SAMUEL ALBAS RULINGS re: [292] Minute Entry. Signed by Judge Tena Campbell on 12/14/06 (alt) (Entered: 12/14/2006)
308 MOTION for Admission Pro Hac Vice of T. Diana Chen (no registration fee required) filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Sorenson, Stephen) (Entered: 01/12/2007)
309 MOTION to Withdraw as Attorney filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1) Motions referred to Samuel Alba.(Christensen, Carlie) (Entered: 01/12/2007)
311 ORDER granting 308 Motion for Admission Pro Hac Vice of T. Diana Chen for Equal Employment Opportunity Commission. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Tena Campbell on 1/12/07 (alt) (Entered: 01/16/2007)
310 ORDER granting 309 Motion to Withdraw as Attorney. Attorney Carlie Christensen withdrawn from case for Equal Employment Opportunity Commission. Signed by Judge Samuel Alba on 01/16/07. (rlr) (Entered: 01/16/2007)

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02/22/2007
03/16/2007 03/16/2007 03/16/2007 03/16/2007 03/22/2007
03/29/2007 03/29/2007 03/30/2007 03/30/2007 03/30/2007 04/02/2007 04/02/2007

312 TRIAL ORDER with instructions to counsel: 5-day Jury Trial set for 4/16/2007 08:30 AM before Judge Tena Campbell; Final Pretrial Conference set for 3/22/2007 02:30 PM before Judge Tena Campbell; In Chambers Conference set for 4/16/2007 08:00 AM before Judge Tena Campbell. Signed by Judge Tena Campbell on 2/21/07 (alt) (Entered: 02/22/2007)
313 Proposed Exhibit List (Defendant's Final Pretrial Disclosures) by Defendant Body Firm Aerobics.. (Wood, Mary Anne) (Entered: 03/16/2007)
314 Proposed Witness List (Defendant's Final Pretrial Disclosures) by Body Firm Aerobics. (Wood, Mary Anne) (Entered: 03/16/2007)
315 Proposed Exhibit List (Plaintiffs' Final Pretrial Disclosures) by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender.. (Chen, T.) (Entered: 03/16/2007)
316 Proposed Witness List (Plaintiffs' Final Pretrial Disclosures) by Equal Employment Opportunity Commission, Andrea Liender. (Chen, T.) (Entered: 03/16/2007)
317 Minute Entry for proceedings held before Judge Tena Campbell : Final Pretrial Conference held on 3/22/2007. Cnsl indicate the case is still on track for trial, which is set for 5 day jury trial on 4/16/2007 at 8:30 a.m. The Court will hear pending motions in limine on 4/13/2007 at 2:30 PM. Cnsl will file final pretrial order by Tuesday, 03/27/2007. Cnsl will contact the Court if the case settles. Attorney for Plaintiff: Diana Chen, Lucila Rosas, Lincoln Hobbs, Lisa McGarry, Attorney for Defendant Mary Anne Wood, Kathryn Balmforth. Court Reporter: Ray Fenlon.(mjm) (Entered: 03/23/2007)
318 Joint MOTION to Compel Identification of Trial Exhibits filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Attachment A) Motions referred to Samuel Alba.(Rosas, Lucila) (Entered: 03/29/2007)
320 PRETRIAL ORDER: 5-Day Jury Trial set for 4/16/2007 08:30 AM before Judge Tena Campbell. Signed by Judge Tena Campbell on 3/29/07 (alt) (Entered: 03/30/2007)
319 RESPONSE to Motion re 318 Joint MOTION to Compel Identification of Trial Exhibits filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit Email dated March 29, 2007)(Wood, Mary Anne) (Entered: 03/30/2007)
321 OBJECTIONS to 316 Witness List(Proposed) (Plaintiff's Final Disclosures) filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 03/30/2007)
322 OBJECTIONS to 313 Exhibit List(Proposed) filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Shanley, Sally) (Entered: 03/30/2007)
323 NOTICE of Appearance by Rachel A. Asbury on behalf of Body Firm Aerobics (Asbury, Rachel) (Entered: 04/02/2007)
324 Proposed Voir Dire by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 04/02/2007)

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04/06/2007
04/06/2007 04/09/2007 04/09/2007 04/09/2007
04/09/2007 04/09/2007
04/09/2007

325 CERTIFICATE OF SERVICE by Body Firm Aerobics of Proposed Special Verdict Form and Proposed Jury Instructions (Wood, Mary Anne) (Entered: 04/02/2007)
326 REPLY to Response to Motion re 318 Joint MOTION to Compel Identification of Trial Exhibits filed by Plaintiff Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 04/02/2007)
327 Proposed Voir Dire by Plaintiff Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 04/02/2007)
328 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission of Proposed Jury Instructions and Proposed Special Verdict Form (Rosas, Lucila) (Entered: 04/02/2007)
329 NOTICE of Notice of Mailing of Jury Instructions and Special Verdict Form by Equal Employment Opportunity Commission (Chen, T.) (Entered: 04/03/2007)
330 Emergency MOTION to Continue Trial Due to Illness of Lead Counsel filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order) Motions referred to Samuel Alba.(Shanley, Sally) (Entered: 04/06/2007)
331 MOTION to Expedite Ruling on Emergency Motion (Doc. 330) filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order) Motions referred to Samuel Alba.(Shanley, Sally) (Entered: 04/06/2007)
332 MEMORANDUM in Opposition re 330 Emergency MOTION to Continue Trial Due to Illness of Lead Counsel filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/06/2007)
333 DOCKET TEXT ORDER denying 330 Motion to Continue; finding as moot 331 Motion to Expedite. So Ordered by Judge Tena Campbell on 4/9/07 (No document image will be attached) (alt) (Entered: 04/09/2007)
334 MOTION in Limine Regarding Witness Rona Hill filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
335 MEMORANDUM in Support re 334 MOTION in Limine Regarding Witness Rona Hill filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A Declaration of Rona Hill in Support of Motion in Limine)(Balmforth, Kathryn) (Entered: 04/09/2007)
336 MOTION in Limine to Defer Consideration of "Class" Claim filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
337 MEMORANDUM in Support re 336 MOTION in Limine to Defer Consideration of "Class" Claim filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Conciliation Letter from Dana Auzenne to Brian C. Harrison dated June 18, 2003)(Balmforth, Kathryn) (Entered: 04/09/2007)
338 MOTION in Limine to Exclude Any Evidence Regarding the EEOC's Investigation filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)

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04/09/2007 04/09/2007 04/09/2007
04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007

339 MEMORANDUM in Support re 338 MOTION in Limine to Exclude Any Evidence Regarding the EEOC's Investigation filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Plaintiff EEOC's Motion for Protective Order# 2 Exhibit B - Plaintiff EEOC's Reply Re Motion for Protective Order# 3 Exhibit C - Order (re Motion for Protective Order))(Balmforth, Kathryn) (Entered: 04/09/2007)
340 Proposed Jury Instructions by Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
341 MOTION in Limine to Exclude the Testimony of Andrea Liender's and Erin Allen's Relatives and Friends filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
342 MEMORANDUM in Support re 341 MOTION in Limine to Exclude the Testimony of Andrea Liender's and Erin Allen's Relatives and Friends filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Plaintiff EEOC's Reply Re Motion for Protective Order)(Balmforth, Kathryn) (Entered: 04/09/2007)
343 MOTION in Limine filed by Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/09/2007)
344 MOTION in Limine to Exclude the Testimony of Undisclosed Witnesses filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) Modified on 4/10/2007: removed text relating to motion to quash (alt) (Entered: 04/09/2007)
345 MEMORANDUM in Support re 343 MOTION in Limine filed by Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/09/2007)
346 MEMORANDUM in Support re 344 MOTION in Limine to Exclude the Testimony of Undisclosed Witnesses filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) Modified on 4/10/2007: removed text referring to motion to quash (alt) (Entered: 04/09/2007)
347 MOTION to Quash Subpoenas filed by Defendant Body Firm Aerobics. Motions referred to Samuel Alba.(Balmforth, Kathryn) (Entered: 04/09/2007)
348 MEMORANDUM in Support re 347 MOTION to Quash Subpoenas filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
349 MOTION in Limine to Exclude Any Evidence of the Physical Altercation, the Misdemeanor Assault Charge, and the Lawsuit Brought Against Troy C. Peterson filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
350 MEMORANDUM in Support re 349 MOTION in Limine to Exclude Any Evidence of the Physical Altercation, the Misdemeanor Assault Charge, and the Lawsuit Brought Against Troy C. Peterson filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
351 MOTION in Limine re Commission Investigation filed by Plaintiff Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 04/09/2007)

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04/09/2007 04/09/2007 04/09/2007
04/09/2007 04/09/2007

352 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Chen, T.) (Entered: 04/09/2007)
353 MOTION to Equalize Peremptory Challenges Pursuant to 28 U.S.C. Sec. 1870 filed by Defendant Body Firm Aerobics. Motions referred to Samuel Alba.(Balmforth, Kathryn) (Entered: 04/09/2007)
354 MEMORANDUM in Support re 353 MOTION to Equalize Peremptory Challenges Pursuant to 28 U.S.C. Sec. 1870 filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
355 Amended MEMORANDUM in Support re 349 MOTION in Limine to Exclude Any Evidence of the Physical Altercation, the Misdemeanor Assault Charge, and the Lawsuit Brought Against Troy C. Peterson filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
356 **SEALED** MOTION in Limine to Exclude Evidence Regarding Private Actions of Kandi Negrete filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) Modified on 4/13/2007: SEALED per order from bench (alt) (Entered: 04/09/2007)
357 **SEALED** MEMORANDUM in Support re [356] MOTION in Limine to Exclude Evidence Regarding Private Actions of Kandi Negrete filed by Defendant Body Firm Aerobics. (Attachments: # (1) Exhibit A - Excerpts from Deposition of Kandi Negrete)(Balmforth, Kathryn) Modified on 4/16/2007: document SEALED per instruction from bench on 4/13/07 (alt) (Entered: 04/09/2007)
358 MOTION in Limine to Exclude Evidence Regarding Ron Littlebrant's Alleged "Meanness" filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
359 MOTION in Limine re Conciliation filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 - 5)(Shanley, Sally) (Entered: 04/09/2007)
360 MEMORANDUM in Support re 358 MOTION in Limine to Exclude Evidence Regarding Ron Littlebrant's Alleged "Meanness" filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Excerpts from Deposition of Erin Allen# 2 Exhibit B - Excerpts from Deposition of Shannon Viertel McCarty# 3 Exhibit C - Excerpts from Deposition of Troy Viertel# 4 Exhibit D - Excerpts from Deposition of Rhonda Hillam# 5 Exhibit E - Excerpts from Deposition of Laura Aston# 6 Exhibit F - Rona Hill Statement# 7 Exhibit G - April Miller Statement# 8 Exhibit H - Chelsea Powell Statement# 9 Exhibit I - Erin Allen Statement)(Balmforth, Kathryn) (Entered: 04/09/2007)
361 MOTION in Limine to Exclude Evidence Relating to Alleged Acts Occurring or Statements Made Subsequent to May 16, 2001 filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
362 MEMORANDUM in Support re 361 MOTION in Limine to Exclude Evidence Relating to Alleged Acts Occurring or Statements Made Subsequent to May 16, 2001 filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A Excerpts from Deposition of Andrea Liender)(Balmforth, Kathryn) (Entered:

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04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007
04/10/2007

04/09/2007)
363 **SEALED** MOTION in Limine to Exclude Testimony Regarding Thad Littlebrant filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) Modified on 4/16/2007: document SEALED per instruction from bench on 4/13/07 (alt) (Entered: 04/09/2007)
364 **SEALED** MEMORANDUM in Support re [363] MOTION in Limine to Exclude Testimony Regarding Thad Littlebrant filed by Defendant Body Firm Aerobics. (Attachments: # (1) Exhibit A - Excerpts from Deposition of Erin Allen)(Balmforth, Kathryn) Modified on 4/16/2007: document SEALED per instruction from bench on 4/13/07 (alt) (Entered: 04/09/2007)
365 MOTION in Limine to Exclude Evidence Regarding Complaints or Behavior of Which Andrea Liender was Unaware filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
366 MEMORANDUM in Support re 365 MOTION in Limine to Exclude Evidence Regarding Complaints or Behavior of Which Andrea Liender was Unaware filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
367 MOTION in Limine to Exclude Evidence Regarding Irrelevant Time Periods and Irrelevant Gold's Gym Franchises filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
368 MEMORANDUM in Support re 367 MOTION in Limine to Exclude Evidence Regarding Irrelevant Time Periods and Irrelevant Gold's Gym Franchises filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
369 MOTION in Limine to Limit Examination of Witnesses to One Attorney Per Side filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
370 MEMORANDUM in Support re 369 MOTION in Limine to Limit Examination of Witnesses to One Attorney Per Side filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
371 MOTION in Limine to Require Plaintiffs to Refer to Defendant by its Proper Name filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
372 MEMORANDUM in Support re 371 MOTION in Limine to Require Plaintiffs to Refer to Defendant by its Proper Name filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/09/2007)
376 Modification of Docket: Error: Filer caught own error regarding 2-part motion and so filed the motion again as a Motion to Quash 347 so that the judge can rule on the two reliefs separately if necessary. Correction: Text that referred to the motion to quash has been removed from the entries filed as to the Motion in Limine, re: 344 MOTION in Limine to Exclude the Testimony of Undisclosed Witnesses, 346 Memorandum in Support of Motion (alt) (Entered: 04/10/2007)
373 Proposed Jury Instructions by Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/10/2007)

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374 RESPONSE to Motion re 336 MOTION in Limine to Defer Consideration of "Class" Claim filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibits 1 - 3)(Shanley, Sally) (Entered: 04/10/2007)
375 RESPONSE to Motion re 338 MOTION in Limine to Exclude Any Evidence Regarding the EEOC's Investigation filed by Plaintiff Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 04/10/2007)
377 RESPONSE to Motion re 371 MOTION in Limine to Require Plaintiffs to Refer to Defendant by its Proper Name filed by Plaintiff Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 04/10/2007)
378 MOTION to Seal re [357] Memorandum in Support of Motion, [356] MOTION in Limine to Exclude Evidence Regarding Private Actions of Kandi Negrete filed by Defendant Body Firm Aerobics. (Attachments: # 1 Text of Proposed Order Order on Motion to Seal) Motions referred to Samuel Alba.(Balmforth, Kathryn) (Entered: 04/11/2007)
379 MOTION to Seal re [364] Memorandum in Support of Motion, [363] MOTION in Limine to Exclude Testimony Regarding Thad Littlebrant filed by Defendant Body Firm Aerobics. (Attachments: # 1 Text of Proposed Order Order on Motion to Seal) Motions referred to Samuel Alba.(Balmforth, Kathryn) (Entered: 04/11/2007)
380 Amended MOTION in Limine to Exclude Evidence Regarding Private Actions of Kandi Negrete filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/11/2007)
381 Amended MEMORANDUM in Support re 380 Amended MOTION in Limine to Exclude Evidence Regarding Private Actions of Kandi Negrete filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/11/2007)
382 Amended MOTION in Limine to Exclude Testimony Regarding Thad Littlebrant filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/11/2007)
383 Amended MEMORANDUM in Support re 382 Amended MOTION in Limine to Exclude Testimony Regarding Thad Littlebrant filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/11/2007)
384 NOTICE of Appearance by Julie Ladle on behalf of Andrea Liender (Ladle, Julie) (Entered: 04/11/2007)
385 RESPONSE to Motion re [363] MOTION in Limine to Exclude Testimony Regarding Thad Littlebrant, 349 MOTION in Limine to Exclude Any Evidence of the Physical Altercation, the Misdemeanor Assault Charge, and the Lawsuit Brought Against Troy C. Peterson, [356] MOTION in Limine to Exclude Evidence Regarding Private Actions of Kandi Negrete filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Shanley, Sally) (Entered: 04/11/2007)
386 Proposed Jury Instructions by Equal Employment Opportunity Commission, Andrea Liender. (Chen, T.) (Entered: 04/11/2007)

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387 MOTION to Quash Subpoenas filed by Defendant Body Firm Aerobics. Motions referred to Samuel Alba.(Balmforth, Kathryn) (Entered: 04/11/2007)
388 MEMORANDUM in Support re 387 MOTION to Quash Subpoenas filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/11/2007)
389 MOTION to Equalize Time for Presentation of Cases filed by Defendant Body Firm Aerobics. Motions referred to Samuel Alba.(Balmforth, Kathryn) (Entered: 04/11/2007)
390 MEMORANDUM in Support re 389 MOTION to Equalize Time for Presentation of Cases filed by Defendant Body Firm Aerobics. (Balmforth, Kathryn) (Entered: 04/11/2007)
391 RESPONSE to Motion re 365 MOTION in Limine to Exclude Evidence Regarding Complaints or Behavior of Which Andrea Liender was Unaware filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Chen, T.) (Entered: 04/11/2007)
392 RESPONSE to Motion re 341 MOTION in Limine to Exclude the Testimony of Andrea Liender's and Erin Allen's Relatives and Friends filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/11/2007)
393 MEMORANDUM in Opposition re 369 MOTION in Limine to Limit Examination of Witnesses to One Attorney Per Side filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/11/2007)
394 RESPONSE to Motion re 361 MOTION in Limine to Exclude Evidence Relating to Alleged Acts Occurring or Statements Made Subsequent to May 16, 2001, 358 MOTION in Limine to Exclude Evidence Regarding Ron Littlebrant's Alleged "Meanness" filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/11/2007)
395 RESPONSE to Motion re 353 MOTION to Equalize Peremptory Challenges Pursuant to 28 U.S.C. Sec. 1870 filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/11/2007)
396 RESPONSE to Motion re 344 MOTION in Limine to Exclude the Testimony of Undisclosed Witnesses, 347 MOTION to Quash Subpoenas filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/11/2007)
397 RESPONSE to Motion re 389 MOTION to Equalize Time for Presentation of Cases, 387 MOTION to Quash Subpoenas filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Letter 03-28-07 Chen to wood# 2 Exhibit emails 03-27 to 03-29 chen& wood)(Hobbs, Lincoln) (Entered: 04/11/2007)
398 DECLARATION of Lincoln W. Hobbs filed by Equal Employment Opportunity Commission, Andrea Liender. (Hobbs, Lincoln) (Entered: 04/11/2007)

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399 MEMORANDUM in Opposition re 334 MOTION in Limine Regarding Witness Rona Hill filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Exhibit Rona Hill UALD Charge Sheet# 2 Exhibit 04-30-02 Hobbs letter to EEOC)(Hobbs, Lincoln) (Entered: 04/12/2007)
400 Proposed Jury Verdict by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 04/12/2007)
401 MEMORANDUM in Opposition re 343 MOTION in Limine to Exclude Inquiries and References to Religion or Religious Beliefs filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of Andrea Liender's Deposition# 2 Exhibit B - Deposition of Ronda Hillam)(Balmforth, Kathryn) (Entered: 04/12/2007)
402 MEMORANDUM in Opposition re 359 MOTION in Limine re Conciliation filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of Paul Manget Deposition# 2 Exhibit B - Letters from EEOC to Lincoln Hobbs requesting damages information# 3 Exhibit C - Letter from Lincoln Hobbs to EEOC dated April 25, 2003)(Balmforth, Kathryn) (Entered: 04/12/2007)
403 Proposed Jury Verdict by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Chen, T.) (Entered: 04/12/2007)
404 RESPONSE to Motion re 367 MOTION in Limine to Exclude Evidence Regarding Irrelevant Time Periods and Irrelevant Gold's Gym Franchises filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Shanley, Sally) (Entered: 04/12/2007)
405 Amended MEMORANDUM in Opposition re 359 MOTION in Limine re Conciliation filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of Paul Manget Deposition# 2 Exhibit B - Letters from EEOC to Lincoln Hobbs requesting damages information# 3 Exhibit C - Letter from Lincoln Hobbs to EEOC dated April 25, 2003# 4 Exhibit D - Letters from EEOC to Body Firm employees)(Balmforth, Kathryn) (Entered: 04/12/2007)
406 MEMORANDUM in Opposition re 351 MOTION in Limine re Commission Investigation filed by Defendant Body Firm Aerobics. (Attachments: # 1 Exhibit A - Cited pages of Paul Manget Deposition# 2 Exhibit B - Letters from EEOC to Lincoln Hobbs requesting damages information# 3 Exhibit C - Letter from Lincoln Hobbs to EEOC dated April 25, 2003# 4 Exhibit D - Letters from EEOC to Body Firm employees)(Balmforth, Kathryn) (Entered: 04/12/2007)
407 OBJECTIONS to 386 Proposed Jury Instructions of Plaintiffs filed by Defendant Body Firm Aerobics. (Wood, Mary Anne) (Entered: 04/12/2007)
408 REPLY to Response to Motion re 343 MOTION in Limine to Exclude Religious Inquiries filed by Intervenor Plaintiff Andrea Liender. (Hobbs, Lincoln) (Entered: 04/12/2007)
409 Proposed Exhibit List Supplemental Rule 26(a)(3) by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender.. (Hobbs, Lincoln) (Entered: 04/12/2007)

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410 OBJECTIONS to 373 Proposed Jury Instructions of Defendant filed by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Andrea Liender. (Shanley, Sally) (Entered: 04/12/2007)
411 Minute Entry re: proceedings held before Judge Tena Campbell: taking under advisement 334 Motion in Limine; denying 336 Motion in Limine (there will be no class certification); granting 338 Motion in Limine; denying (w/cautions) 341 Motion in Limine; granting 343 Motion in Limine; granting in part and denying in part 344 Motion in Limine; granting in part and denying in part 347 Motion to Quash; granting (unless intertwined w/other evidence)349 Motion in Limine; granting 351 Motion in Limine; granting in part denying in part 353 Motion to Equalize Peremptory Challenges Pursuant to 28 U.S.C. Sec. 1870 (each side gets 5); granting (unless intertwined w/other evidence) 358 Motion in Limine; granting 359 Motion in Limine; granting 361 Motion in Limine; granting 365 Motion in Limine; granting (w/cautions) 367 Motion in Limine; taking under advisement 369 Motion in Limine; granting (w/cautions) 371 Motion in Limine; granting 378 Motion to Seal; granting 379 Motion to Seal; granting 380 Motion in Limine; granting 382 Motion in Limine; denying 387 Motion to Quash; denying 389 Motion to Equalize Time for Presentation of Cases; Further instruction was given from the bench as to how the trial is to proceed. Counsel are to provide each other with a witness list at the end of each day, beginning with today. A written order will follow. Attorney for Plaintiff: Sally C. Shanley, T. Diana Chen; Attorney for Intervenor Plaintiff: Lincoln W. Hobbs, Lisa M. McGarry; Attorney for Defendant: Mary Anne Wood, Kathryn Balmforth, Rachel Asbury. Court Reporter: Raymond P. Fenlon (alt) Modified on 4/16/2007: changed ruling on motion #353 to granted in part denying in part (alt) (Entered: 04/13/2007)
412 Modification of Docket: Error: ruling indicated in original minute entry for motion #353 was incorrect. Correction: changed ruling on motion #353 to 'granted in part denied in part', re: [411] Minute Entry on Motions in Limine (alt) (Entered: 04/16/2007)
413 WRITTEN ORDER FOLLOWING [411] Minute Entry on Motions in Limine (oral order of 4/13/07). Signed by Judge Tena Campbell on 4/13/07 (alt) (Entered: 04/16/2007)
414 WRITTEN ORDERS FOLLOWING [411] Minute Entry granting Motions to Seal (oral order of 4/13/07). Signed by Judge Tena Campbell on 4/13/07 (alt) (Entered: 04/16/2007)
415 ORDER ASSESSING JURY COSTS PER DUCivR 41-1: parties are to share the burden of the costs as follows: Plaintiff Equal Employment Opportunity Commission shall pay $381.82; Plaintiff-Intervenor Andrea Liender shall pay $381.82; and Defendant Body Firm Aerobics, Inc. d/b/a Golds Gym shall pay $381.81. Signed by Judge Tena Campbell on 4/30/07 (alt) (Entered: 04/30/2007)
416 SETTLEMENT AGREEMENT by Plaintiff Equal Employment Opportunity Commission, Defendant Body Firm Aerobics, Intervenor Plaintiff Andrea Liender. (Attachments: # 1 Text of Proposed Order # 2 Attachment B Notice)(Rosas, Lucila) (Entered: 05/17/2007)

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417 STIPULATION of Dismissal by Equal Employment Opportunity Commission, Body Firm Aerobics, Andrea Liender. (Attachments: # 1 Text of Proposed Order Attachment A# 2 Attachment B Notice)(Rosas, Lucila) (Entered: 05/17/2007)
418 ORDER DISMISSING CASE With Prejudice - CASE CLOSED. Judge Samuel Alba no longer assigned to case. Signed by Judge Tena Campbell on 5/21/07 (alt) (Entered: 05/22/2007)

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