Case 2:05-cv-O4217-JD Document 1 Filed 08/09/2005 Page 1 of 6

U.S. Equal Employment Opportunity Commission Philadelphia District Office 21 S. 5~ Street, Suite 400 Philadelphia, PA 19106 By: Stephanie Marino, Trial Attorney Tel: (215) 440-2841 Fax: (215) 440-2848
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

CIVIL ACTION NO.:

BIG WAY, INC. t./a VALLEY GREEN INN,

COMPLAINT JURY TRIAL DEMAND

Defendant.

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices that discriminate on the basis of sex and to provide appropriate relief to Joyce Fishel, and a class of female employees, inclusive of Colleen Quinn and Alison McHale, who were adversely affected by such practices. The Commission alleges that during their employment, Ms. Fishel, Ms. Quinn and Ms. McHale were subjected to sexual harassment through sexually explicit, vulgar, insulting and sexually derogatory comments and conduct which created a sexually hostile and offensive work environment for them as females. The Commission alleges that although these female employees objected to and complained to Defendant about such conduct, no remedial action was undertaken by Defendant to stop the sexual harassment. As a result of the sexual harassment, they were forced to resign their positions and suffered severe emotional distress and damages.

Case 2:05-cv-O4217-JD Document 1 Filed 08/09/2005 Page 2 of 6
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § § 451, 1331, 1337, 1343 and I345. This action is authorized and instituted pursuant to §706(0 (1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(1) and (3) ("Title V~") and Section i02 of the Civil Rights Act of 1991, 42 U.S.C. §19981 A. 2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States for the Eastern District of Pennsylvania.
PART/ES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(t")(1) and (3) of Title VII, 42 U.S.C. § 2000(e)-5(f)(1) and (3). 4. At all relevant times, Defendant, Big Way, Inc. t/a Valley Green Inn (the "Inn"), has been and is now doing business in the Commonwealth of Pennsylvania and the City of Philadelphia and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and 0a) of Title VII, 42 U.S.C. §§ 2000(e)(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Joyce Fishel filed a charge with the Commission alleging violations of Title VII by Defendant Employer. All conditions

Case 2:05-cv-O4217-JD Document 1 Filed 08/09/2005 Page 3 of 6
precedent to the institution of this lawsuit have been fulfilled. 7. Since at least July 2002, Defendant Employer has engaged in unlawful employment
practices at its Philadelphia, Pennsylvania facility in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000(e)-2(a)(1), by subj coting Charging Party, Joyee Fishel, and Claimants, Colleen Quinn and Alison McHale, to disparate treatment and a sexually hostile work environment based upon incidents which include, but are not limited to, the following:
(A) Joyce Fishel was employed with Defendant as both a server and a floor manager since July 2002. Colleen Quirm and Alison McHale were both employed with Defendant as servers since April 2003 and August 2000, respectively.
03) All three female employees, Ms. Fishel, Ms.Quinn and Ms. McHale,. were subjected to offensive sex-based comments and sexually explicit, vulgar, insulting and sexually derogatory comments and conduct by male managers and other male employees, including Kitchen Manager, Shing Dan, and Floor Manager, Ken Swope. Shing Dan regularly talked about his penis, openly discussed anal sex with the predominately mate kitchen staff in the presence of the female staffand would harass female servers. Mr. Swope constantly made degrading comments about women, including statements that women are "conniving and spiteful", and calling women "Feminazi". Both Mr. Dan and Mr. Swope would repeatedly bash women in front of the female staff making comments like, "women are inferior to men" and %vomen should not be treated equally to men."
(C) In December 2003, Mr. Dan had occasion to speak with Ms. Fishel’s boyfriend on the telephone and stated that he and others at the Inn had sex with Ms. Fishel and further stated, "we’ve all done her." While Mr. Dan was on the telephone, Mr. Swope yelled in the background, "Come back to bed, Joyce." Ms. Fishel complained to Defendant’s Executive Manager, Jack Ott; however, neither Mr. Dan nor Mr. Swope were reprimanded.

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(D) After Ms. Fishel was promoted to floor manager, Mr. Ott, would regularly yell at her and, in the presence of others, would speak to her in an offensive and degrading manner. Mr. Ott did not treat the male managers in the same fashion.
(E) Mr. Ott would make offensive sex-based comments to Ms. Fishel, including a comment about her "wonderbra". As a result of Mr. Ott’s offensive, demeaning and degrading conduct, Ms. Fishel demoted herself from the position of floor manager in May 2003 and retumed to the position of server so that she would have less contact with Mr. Oft.
(F) Ms. Fishel, Ms. Quinn and Ms. McHale complained to management and made them aware ofthe inappropriate conduct byMr. Dan and Mr. Swope. However, their complaints were met with hostility and inaction thereby subjecting them to continual sexual harassment by the male managers and staff. Despite notice of the behavior and their authority to correct it, Defendant never took any disciplinary actions against Mr. Dan or Mr. Swope for having created, engaged in and perpetuated a sexually ~ostile work environment.
(G) As a result of sexually hostile work environment, Ms. Fishel, Ms. Quinn and Ms. McHale were constructively discharged from their positions.
8. The effect of the practices complained of in paragraphs 7 (A) through (G) above has been to deprive Joyce Fishel, Colleen Quinn and Alison McHale, as female employees, of equal employment opportunities and otherwise adversely affect their status as employees because of their
sex.
9. The acts complained of in paragraphs 7 (A) through (G) above were intentional. 10. The unlawful employment practices complained of in paragraphs 7 (A) through (G) above were done with reckless indifference to the federally protected rights ofJoyce Fishel, Colleen Quinn and Alison McHale, as female employees.

Case 2:05-cv-O4217-JD Document 1 Filed 08/09/2005 Page 5 of 6
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant apermanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in sexual harassment and any other employment practice which discriminates on the basis of sex. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment oppommities for women, which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Joyce Fishel, Colleen Quinn and Alison McHale, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its tmlawful employment practices. D. Order Defendant Employer to make whole Joyce Fishel, Colleen Quirm and Alison McHale, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 7 (A) through (G) above, including, but not limited to out-of-pocket losses, in amounts to be determined at trial. E. Order Defendant Employer to make whole Joyce Fishel, Colleen Quinn and Alison McHale, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 7 (A) through (G) above, including pain and suffering, humiliation, embarrassment, loss of life’s enjoyment and pleasures, depression, anxiety and inconvenience, in amounts to be determined at trial. F. Order Defendant Employer to pay Joyce Fishel, Colleen Quinrl and Alison McHale, punitive damages for its malicious and reckless conduct described in paragraphs 7 (A) through (G)

Case 2:05-cv-O4217-JD Document 1 Filed 08/09/2005 Page 6 of 6
above, in amounts to be determined at trial. G. Grant such further relief as the Court deems necessary and proper in the public
interest. H. Award the Commission its costs of this action.
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted,
ERIC S. DREmAND
General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG I~AMS
~sociate General Cq..unse]/~ ,~ o
}_uPe_rv~_ory Trial A~_omey (Acting)
S TEPi’~ANIE MARCO Trial Attorney / Stephanie.Marino@eeoc.gov PAId. No. 77752 EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION Philadelphia District Office 21 S. 5t" Street, Ste. 400 Philadelphia, PA 19106

 
 Case 2:05-cv-04217-SD Document 8-1 Filed 10/19/2005 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION,

:

:

Plaintiff,

:

:

v.

:

:

BIG WAY, INC. t/a Valley Green Inn

:

:

Defendant.

:

:

:

JOYCE FISHEL

:

:

Plaintiff,

:

vs.

:

:

BIG WAY, INC. t/a Valley Green Inn,

:

Valley Green Road at Wissahickon Creek

:

Philadelphia, Pennsylvania 19128

:

:

and

:

:

MR. JACK OTT

:

c/o Valley Green Inn,

:

Valley Green Road at Wissahickon Creek

:

Philadelphia, Pennsylvania 19128

:

:

and

:

:

MR. SHING DAN

:

c/o Valley Green Inn,

:

Valley Green Road at Wissahickon Creek

:

Philadelphia, Pennsylvania 19128

:

:

and

:

:

MR. KEN SWOPE

:

c/o Valley Green Inn,

:

Valley Green Road at Wissahickon Creek

:

Philadelphia, Pennsylvania 19128

:

:

Defendants.

:

CIVIL ACTION NO. 05-CV-4217
JURY TRIAL DEMANDED

Case 2:05-cv-04217-SD Document 8-1 Filed 10/19/2005 Page 2 of 13
PLAINTIFF JOYCE FISHEL’S AMENDED COMPLAINT
I. PRELIMINARY STATEMENT 1. Plaintiff Joyce Fishel, a former employee of Big Way, Inc. t/a Valley Green Inn, was forced to resign after she was discriminated against on the basis of her gender and she and others were subjected to a sexually hostile work environment by defendants Big Way, Inc.; executive manager and co-owner Mr. Jack Ott; kitchen manager Mr. Shing Dan; and floor manager Mr. Ken Swope. Moreover, after Ms. Fishel was forced to resign, Big Way, Inc. and Mr. Jack Ott withheld wages from Ms. Fishel that she had earned. As a result of the hostile, discriminatory and illegal conduct of defendants in violation of The Equal Pay Act, 29 U.S.C. § 206 (d); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”); the Pennsylvania Human Relations Act, as amended, 43 P.S. § 951 et seq. (“PHRA”); and the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.1, et seq., Ms. Fishel seeks compensatory and liquidated damages and any other statutory relief which is available to her under federal law and state law. II. PARTIES 2. Plaintiff, Ms. Joyce Fishel, is a citizen of the Commonwealth of Pennsylvania residing at 6024 Wayne Avenue, Apartment 1-B, Philadelphia, Pennsylvania 19144. 3. Ms. Fishel is female. 4. Defendant Big Way, Inc. is, upon information and belief, a Delaware corporation doing business at Valley Green Inn, Valley Green Road at Wissahickon Creek, Philadelphia, Pennsylvania 19128.
2

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5. Big Way, Inc. operates a restaurant, a banquet facility, and a snack bar at the historic Valley Green Inn, which, upon information and belief, it leases from the Friends of the Wissahickon. 6. In this complaint, defendants Big Way, Inc. and Valley Green Inn will be use interchangeably. 7. At all times material hereto, defendant Big Way, Inc. employed more than fifteen (15) employees. 8. Defendant Mr. Jack Ott is a citizen of the Commonwealth of Pennsylvania, who, at all times relevant, was the executive manager of the Valley Green Inn and, based upon information and belief, co-owner of Big Way, Inc. 9. Defendant Mr. Shing Dan is a citizen of the Commonwealth of Pennsylvania, who, at all times relevant, was employed by Big Way, Inc. as the chef and kitchen manager of the Valley Green Inn. 10. Defendant Mr. Ken Swope is a citizen of the Commonwealth of Pennsylvania, who, at all times relevant, was employed by Big Way, Inc. as the floor manager at the Valley Green Inn. 11. At all times relevant, Big Way, Inc. acted by and through its authorized agents, servants, workmen and/or employees, acting within the course and scope of their employment and in furtherance of its business. 12. At all times relevant, Mr. Ott, Mr. Dan, and Mr. Swope had supervisory authority over Ms. Fishel and had the power to affect the terms and conditions of her employment. III. JURISDICTION 13. The causes of action set forth herein arise under The Equal Pay Act, 29 U.S.C. § 206 (d); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”);
3

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the Pennsylvania Human Relations Act, as amended, 43 P.S. § 951 et seq. (“PHRA”); and the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.1, et seq. 14. The District Court has jurisdiction over the causes of action set forth in counts I and II of this complaint pursuant to 29 U.S.C. § 216, 42 U.S.C. § 2000(e)-5(f)(1) and (3), and 28 U.S.C. § 1331. The District Court has supplemental jurisdiction over the causes of action set forth in counts III and IV of this complaint pursuant to 28 U.S.C. §1367. 15. Venue is proper under 28 U.S.C. § 1391(b) and (c). 16. On or about February 23, 2004, Ms. Fishel filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging gender-based harassment and discrimination, which charge was then referred to the Pennsylvania Human Relations Commission (“PHRC”) for cross-filing. 17. On or about June 2, 2005 the EEOC issued a letter of determination finding probable cause to believe that Ms. Fishel had been sexually harassed and discriminated against on the basis of her gender while she was employed by defendant Big Way, Inc. A copy of the letter of determination is attached hereto, incorporated herein and marked as Exhibit “A.” 18. On August 9, 2005, the EEOC filed the above-captioned suit on behalf of Ms. Fishel and other similarly situated female employees under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. 19. Ms. Fishel has fully complied with all administrative prerequisites for the commencement of this action. IV. FACTUAL ALLEGATIONS 20. On or about July 25, 2002, defendant Big Way, Inc hired Ms. Fishel as a server at the historic Valley Green Inn, Philadelphia, Pennsylvania.
4

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21. Ms. Fishel held the position of server from approximately July 25, 2002 until approximately February 2003. 22. In approximately February 2003, then floor manager, Teresa FitzPatrick, a female, resigned. 23. Mr. Ott promoted Ms. Fishel to floor manager. 24. Mr. Ott paid to Ms. Fishel the same weekly salary he had paid to Ms. FitzPatrick. 25. While Ms. Fishel was floor manager, Mr. Ott regularly ridiculed, insulted, and harassed her by, among other things:
a.) making sexual comments to her, b.) yelling at her and belittling her in front of those she supervised, c.) having sex in the attic of the Valley Green Inn while it was open for
business and Ms. Fishel was working in the adjoining office, d.) promoting Mr. Shing Dan to kitchen manager after Ms. Fishel complained
to Mr. Ott about Mr. Dan’s obnoxious and harassing behavior, e.) rehiring over Ms. Fishel’s objection a male bartender that had previously
been fired by Ms. FitzPatrick for, among other things, inappropriate behavior toward female servers, and f.) engaging in other unwelcome, gender-based harassment of Ms. Fishel. 26. Because of Mr. Ott’s abusive and harassing behavior, Ms. Fishel was forced to resign from the position of floor manager and return to her previous position of server at the Inn, where she would have less direct day-to-day contact with Mr. Ott. 27. After Ms. Fishel resigned as floor manager, Mr. Ott promoted Mr. Ken Swope, a male server, to floor manager.
5

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28. At the time of Mr. Swope’s promotion to floor manager, Mr. Swope had little or no management experience. 29. The floor manager position held by Mr. Swope required substantially equal skill, effort, and responsibility as that held by Ms. Fishel. 30. Mr. Ott paid to Mr. Swope a salary of $600.00 per week as floor manager - the same position for which he had paid Ms. Fishel a salary of $300.00 per week. 31. Ms. Fishel’s gender was a motivating and determinative factor in Big Way, Inc.’s treatment of her relative to the terms and conditions of her employment. 32. In approximately October 2003, Mr. Ott admonished an employee for raising her voice to Mr. Swope and stated, “This isn’t Joyce or Teresa, you speak to him like he is Ken.” 33. During the time that Ms. Fishel was employed by defendant Big Way, Inc., it did not have a policy against gender/sexual harassment or discrimination. 34. During the time that Ms. Fishel was employed by defendant Big Way, Inc., it did not post information for its employees regarding local, state or federal laws prohibiting discrimination and harassment, as required by law. 35. When Ms. Fishel returned to her position as server, she continued to be subjected to an environment that was hostile to women. 36. Regularly during Ms. Fishel’s employment with Big Way, Inc. and increasingly once he was promoted by Mr. Ott to kitchen manager, Mr. Dan used vulgar language and engaged in sexual banter to harass Ms. Fishel and other female employees at the Inn, by among other things:
a) routinely referring to his penis as a “pickle jar,” b) routinely bragging about the alleged size of his penis, c) regularly talking about sex,
6

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d) having sex with a female server in the bathroom at the Inn and joking about it afterward,
e) offering to pay a female server to see her breasts, f) loudly calling a female server a “lying bitch” in front of others, raising his
arm to her face, and saying “I could hit you,” in response to her accidentally spilling a tray of gravies, g) questioning Ms. Fishel about her weight and quipping “have you gained weight or has your ass always looked that good,” h) withholding the meals of the servers, who were primarily female, when one of them voiced disagreement or opposition to his and Mr. Ken Swope’s comments that women are inferior to men and that men and women should not be treated equally, i) suggesting that Ms. Fishel was promiscuous with other employees at the Inn and joking to Ms. Fishel’s boyfriend that Mr. Dan and others had had sex with Ms. Fishel and had “done her,” and j) engaging in other unwelcome gender-based behaviors toward Ms. Fishel and other female servers. 37. After he was promoted to floor manager in approximately May, 2003, Mr. Ken Swope routinely harassed Ms. Fishel and other female servers by, among other things: a) referring to women as “feminazi,” b) regularly commenting that women are stupid and evil, c) regularly mentioning his love of vaginas,
7

Case 2:05-cv-04217-SD Document 8-1 Filed 10/19/2005 Page 8 of 13
d) crudely stating to female employees the reason for another female server’s absence from work and stating that she could not work because she was “bleeding too much,”
e) stating to a female server, who had just been cursed at and almost physically assaulted by Mr. Shing Dan for accidentally spilling a tray of gravies, that she did not pay Mr. Dan “the respect he deserved” and insinuating to her that she deserved the treatment she received, and
f) engaging in other unwelcome, gender-based harassment. 38. When Mr. Ott was notified of Mr. Dan’s and Mr. Swope’s harassing behavior, Mr. Ott failed to take reasonable and effective action to stop the harassment. 39. As executive manager of Valley Green Inn, Mr. Ott created an atmosphere where genderbased harassment was accepted and, at times, encouraged. 40. Mr. Ott allowed a poster of a scantily clad pinup girl to be placed in the kitchen of the Inn in full view of the staff. 41. When Mr. Swope was informed by a female server that Mr. Dan was mistreating and verbally abusing the servers, he failed to take reasonable and effective action to stop the harassment. 42. Because of the hostile environment created by Mr. Ott, Mr. Dan, and Mr. Swope at Valley Green Inn, Ms. Fishel was constructively discharged on January 17, 2004. 43. As a direct and proximate result of Big Way, Inc.’s hostile, discriminatory and unlawful conduct, Ms. Fishel has in the past incurred, and will in the future incur, a loss of earnings, loss of benefits, pain and suffering, embarrassment, humiliation, mental anguish, and loss of life’s pleasures, the full extent of which is not known at this time.
8

Case 2:05-cv-04217-SD Document 8-1 Filed 10/19/2005 Page 9 of 13
44. Big Way, Inc.’s conduct, as set forth herein, was outrageous under the circumstances.
COUNT I – THE EQUAL PAY ACT (29 U.S.C. § 206 (d)) (v. Big Way, Inc. t/a Valley Green Inn)
45. Ms. Fishel incorporates herein by reference paragraphs 1 through 44 above, as if set forth in their entirety. 46. As floor manager, Ms. Fishel performed work under similar working conditions and requiring substantially equal skill, effort, and responsibility as that performed by Mr. Swope. 47. Big Way, Inc. does not have a merit system relative to established rates of pay, nor does it have a system which measures earnings by quantity or quality of production. 48. Defendant has intentionally, willfully, and with reckless indifference to federal law, compensated Ms. Fishel, a female, at wage rates substantially less than those paid to Mr. Swope, a male, for performing work which required equal skill, effort, and responsibility, in violation of the Equal Pay Act. 49. Big Way, Inc. by the above improper, discriminatory acts has violated The Equal Pay Act. 50. Said violations were intentional and willful. 51. As a direct and proximate result of Big Way, Inc.’s improper, discriminatory and unlawful conduct, Ms. Fishel has in the past incurred, and will in the future incur, a loss of earnings, loss of benefits, pain and suffering, embarrassment, humiliation, mental anguish, and loss of life’s pleasures, the full extent of which is not known at this time. 52. No previous application was made for the relief requested herein.
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Case 2:05-cv-04217-SD Document 8-1 Filed 10/19/2005 Page 10 of 13
COUNT II – TITLE VII (42 U.S.C.A. § 2000e et seq.) (v. Big Way, Inc. t/a Valley Green Inn)
53. Ms. Fishel incorporates herein by reference paragraphs 1 through 52 above, as if set forth in their entirety. 54. Big Way, Inc. by the above hostile, discriminatory, and unlawful acts has violated Title VII. 55. Said violations were intentional and willful. 56. Said violations warrant the imposition of punitive damages. 57. As a direct and proximate result of Big Way, Inc.’s violations of Title VII, Ms. Fishel has sustained the injuries, damages and losses set forth herein and has incurred attorney’s fees and costs. 58. Ms. Fishel is now suffering and will continue to suffer irreparable injuries and monetary damages as a result of defendant’s discriminatory acts unless and until the Court grants the relief requested herein.
COUNT III – PHRA (43 Pa.C.S. § 951 et seq.) (v. Big Way, Inc. t/a Valley Green Inn and
Jack Ott, Shing Dan, and Kenneth Swope, individually)
59. Ms. Fishel incorporates herein by reference paragraphs 1 through 58 above, as if set forth in their entirety. 60. Big Way, Inc. and Mr. Jack Ott, Mr. Shing Dan, and Mr. Ken Swope, by their own direct acts of sexual harassment and their failure to take action to prevent further harassment, have violated the PHRA.
10

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61. Said violations were intentional and willful. 62. As a direct and proximate result of defendants’ violations of the PHRA, Ms. Fishel has sustained the injuries, damages and losses set forth herein and has incurred attorney’s fees and costs. 63. Ms. Fishel is now suffering and will continue to suffer irreparable injuries and monetary damages as a result of defendants’ discriminatory acts unless and until the Court grants the relief requested herein.
COUNT IV – PENNSYLVANIA WAGE PAYMENT AND COLLECTION LAW (43 P.S. 260.1, et seq.)
(v. Big Way, Inc. t/a Valley Green Inn and Jack Ott, individually)
64. Ms. Fishel incorporates herein by reference paragraphs 1 through 63 above, as if set forth in their entirety. 65. When Ms. Fishel was constructively discharged on January 17, 2004, she provided to Mr. Ott her current address so he could send her final paycheck to her. 66. Big Way, Inc. did not pay to plaintiff wages due to her for the period of January 1 through January 17, 2004. 67. Big Way, Inc. did not provide a W-2 to Ms. Fishel for wages she earned in 2004 while working at Valley Green Inn. 68. Said violations were intentional and willful. 69. As a direct and proximate result of defendants’ violation of the Pennsylvania Wage Payment and Collection Law, Ms. Fishel has sustained damages and losses set forth herein and has incurred attorney’s fees and costs.
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RELIEF WHEREFORE, Ms. Fishel respectfully requests this Court enter a judgment: (a) Declaring that the acts and practices of defendants complained of herein to be in
violation of Title VII; (b) Declaring that the acts and practices of defendants complained of herein to be in
violation of the PHRA; (c) Declaring that the actions of defendant Big Way, Inc. violate the Equal Pay Act; (d) Declaring that the actions of defendants Big Way, Inc. and Jack Ott violate the
Pennsylvania Wage Payment and Collection Law; (e) Enjoining and restraining permanently the violations alleged herein; (f) Awarding compensatory damages to Ms. Fishel for emotional pain and suffering,
inconvenience, mental anguish and loss of enjoyment of life, loss of earnings, and loss of other benefits that Ms. Fishel has sustained and will in the future sustain as a result of defendants’ hostile, abusive and discriminatory treatment; (g) ordering Big Way, Inc. to pay to Ms. Fishel the difference between what she earned and what Mr. Swope was paid for performing the same job plus benefits; (h) awarding liquidated damages under the Equal Pay Act and back pay with interest; (i) awarding liquidated damages and her unpaid wages under the Pennsylvania Wage Payment and Collection Law; (e) Awarding punitive damages to Ms. Fishel; (f) Awarding to Ms. Fishel costs of this action, together with reasonable attorney’s fees;
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Case 2:05-cv-04217-SD Document 8-1 Filed 10/19/2005 Page 13 of 13 (g) Awarding to Ms. Fishel such other damages which are appropriate under Title VII and the PHRA and, (h) Granting such other and further relief as this Court deems appropriate.
/s/ MICHELE M. ROVINSKY, ESQUIRE Id. No. 66587 525 West Carpenter Lane Philadelphia, PA 19119 (215) 843-9344 Attorney for Plaintiff Ms. Joyce Fishel Dated: October 19, 2005
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY : CIVIL ACTION

COMMISSION, et al.

:

:

v.

:

:

BIG WAY, INC., et al.

: NO. 05-4217

ORDER

AND NOW, this 3rd day of February, 2006, upon

consideration of defendant's motion to dismiss and/or for summary judgment1 (docket entry #9) and plaintiff EEOC's response

1 The Court may grant a motion to dismiss under Rule 12(b)(6) "only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In other words, we will not grant such a motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
If a defendant brings a motion under Rule 12(b)(6) and presents matters outside the pleadings (as defendants have done here), then Rule 12(b) permits us to treat the motion as one for summary judgment, to be disposed of under Rule 56. See Fed. R. Civ. P. 12(b). Plaintiffs have had a chance to respond with materials relevant under Rule 56, as evidenced by the exhibits attached to their response. Therefore, we shall treat this as a motion for summary judgment.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inferences from the evidence, in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving party bears the initial burden of proving that there is no genuine issue of material fact in dispute. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). Once the moving party carries this burden, the nonmoving party must "come forward with 'specific facts showing there is a genuine issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(e)). The task for the Court is to inquire "whether the evidence presents a sufficient disagreement to require submission to the
(continued...)

thereto, and the Court finding that: (a) On or about February 23, 2004, Joyce Fishel filed
a charge of discrimination with the EEOC against her former employer Big Way, Inc. t/a Valley Green Inn alleging sexual harassment, a hostile work environment, and constructive discharge, see Def.'s Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem.") Ex. E;
(b) On March 9, 2005, George Marinucci, the EEOC Investigator assigned to Fishel's case, sent Big Way a letter describing the case and stating that the EEOC found probable cause to believe Fishel's charges of sexual harassment, hostile work environment, and constructive discharge, and although the evidence did not support her contention that she had been deprived of company benefits given to male co-workers, it did support her claim that she was paid less than a male performing the same job, see id. Ex. A;
(c) On or about March 30, 2005, Big Way obtained new counsel, Patricia Collins, who requested and received from the EEOC a fifteen-day extension to respond to the March 9, 2005 letter, see id. at 2;
(d) On April 14, 2005, Big Way sent a letter to the EEOC addressing each of Fishel's claims, attaching additional witness statements refuting her claims, and concluding that they
1(...continued) jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52; Tabas v. Tabas, 47 F.3d 1280, 1287 (3d Cir. 1995) (en banc).
2

were not actionable under Title VII or the Equal Pay Act, see id. Ex. B;
(e) On June 2, 2005, the EEOC issued a Determination letter finding "reason to believe that violations have occurred," seeking compensatory and punitive damages and "costs incurred by the Charging Party and the affected female employees," and requesting that Big Way "accept, reject, or submit a counteroffer to the conciliation proposal which will be forthcoming," id. Ex. C at 6;
(f) On June 8, 2005, the EEOC mailed to Big Way a letter, with an attached Conciliation Agreement, seeking $111,400 for Joyce Fishel ($26,000 in back pay at the manager's pay rate, $23,400 in front pay, $12,000 in attorney fees, and $50,000 in compensatory damages) and $50,000 each for Colleen Quinn and Allison McHale in compensatory damages, and giving Big Way until noon on June 20, 2005 to contact the EEOC with its decision, see id. Ex. D;
(g) According to Marinucci, the claims of Quinn and McHale, two other Big Way employees, came to light during the investigation, and when he interviewed them, they purportedly gave examples of sexual harassment, "including the allegations in [Fishel's complaint]" see Pl. EEOC's Opp'n to Mot. to Dismiss and/or Partial Summ. J. ("Pl.'s Opp'n") Ex. B, Marinucci Aff. ¶ 4;
(h) Quinn and McHale did not file charges of discrimination with the EEOC;
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(i) Big Way's counsel contends that she left Marinucci two voicemail messages on June 15, 2005, and that she called him on June 20 and 21, 2005, seeking information about Quinn's and McHale's claims so that she might evaluate them in reviewing the EEOC's conciliation proposal, see Def.'s Mem. 3;
(j) Collins also states that she discussed the matter with George King, Marinucci's supervisor, who told her he would find out the basis of those claims and give her that information, see id. 3;
(k) Collins claims that King never contacted her again, see id., a contention that the EEOC simply does not address in its response to Big Way's motion;
(l) Marinucci informed Collin's via voicemail that, as a matter of policy, the EEOC did not produce witness statements during its investigation period,2 see Pl.'s Opp'n Ex. B ¶ 4; Def.'s Mem. Ex. F;
(m) On June 17, 2005, Collins faxed and mailed a letter to Marinucci stating, in part:
Although I will issue a Freedom of Information Act request for the statements and any other information relating to Ms. Quinn and Ms. McHale, I will not have that information by Monday, the deadline you have set for response to the proposed Conciliation Agreement.
Please note that my client wishes to participate in settling its dispute with Ms. Fishel. However, I am a little distressed by the Commission's inclusion of two "additional class members" in the Conciliation Agreement. . . .
2 The record is unclear on whether Collins received Marinucci's voicemail before or after she is said to have spoken with King.
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. . . Valley Green Inn remains motivated to resolve Ms. Fishel's claims. However, Valley Green Inn will not offer any funds to resolve the time-barred claims of Ms. McHale or Ms. Quinn.
Before Valley Green Inn responds to your proposed conciliation of Ms. Fishel's claims, it needs to know whether the EEOC will insist upon resolution of Ms. Fishel's claims and the time-barred claims as a term of conciliation. Please inform me as soon as possible whether the EEOC will work with the parties to resolve Ms. Fishel's claim only. Def.'s Mem. Ex. F; (n) Big Way contends that "[t]he EEOC never contacted counsel for Valley Green Inn to respond to this request," id. at 3; (o) However, Marinucci states that he spoke with Collins on the telephone on June 21, 2005, at which time he says he told her that Quinn's and McHale's claims were not timebarred; that he would not give her their statements, though he shared with her "the nature of their claims;" and that all three claims would need to be resolved to conciliate, Pl.'s Opp'n Ex. B ¶ 13; (p) Marinucci contends that Collins "did not indicate that Valley Green would be interested in making a counter-offer for monetary relief, or otherwise," id., but, tellingly, Marinucci does not assert that Collins suggested her client wanted to abandon the conciliation process; (q) On June 28, 2005, the EEOC issued a Notice of Conciliation Failure, see id. ¶ 14; (r) On August 9, 2005, the EEOC filed this lawsuit; (s) Under Title VII of the Civil Rights Act of 1964:
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If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.
42 U.S.C. § 2000e-5(b);
(t) Our Court of Appeals has emphasized that
"[c]onciliation rather than formal court proceedings remains the
preferred method of settling disputes," Ostapowicz v. Johnson
Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976); see also Moteles
v. University of Pennsylvania, 730 F.2d 913, 917 (3d Cir. 1984)
(discussing Congress's assumption that administrative tribunals
are better suited to addressing the complicated issues in
employment discrimination cases, particularly since such
complexities heavily tax the judicial resources of already
overburdened federal district courts) (citing H.R. Rep. No. 238,
92d Cong., 2d Sess. 2 reprinted in 1972 U.S. Code Cong. & Ad.
News 2137, 2146);
(u) Conciliation is a "flexible and responsive
process" that accounts for the facts of each case, EEOC v.
Equicredit Corp. of America, No. 02-CV-844, 2002 WL 31371968, at
*3 (E.D. Pa. Oct. 8, 2002), and must include:
(1) informing the violator of ways in which he can bring himself into compliance with the Act; (2) telling him that terminated employees may recover back pay; (3) notifying him that the Department may institute legal action; and (4) assuring him that he may respond to the violations, in light of the possible remedy.
EEOC v. Rhone-Poulenc, Inc., 677 F. Supp. 264, 266 (D.N.J. 1988)
(citing EEOC v. Chrysler Corp., 546 F. Supp. 54, 62 (E.D. Mich.
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1982), aff'd 733 F.2d 1183 (6th Cir. 1984)); (v) If the EEOC has made a good faith attempt to
conciliate and an employer rejects the attempt, the EEOC has no duty to pursue further conciliation efforts and is permitted to file suit under Title VII, EEOC v. Equicredit Corp. of America, 2002 WL 31371968, at *4 (E.D. Pa. Oct. 8, 2002) (citing EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1101-02 (6th Cir. 1984));
(w) On this record before us, we cannot find that the EEOC made a good faith attempt to conciliate;
(x) While Marinucci claims he called Collins the day after the June 20, 2005 EEOC deadline, Big Way unequivocally denies that anyone from the EEOC ever contacted Collins after Marinucci's voicemail informing her that Big Way could not see the statements of McHale or Quinn;
(y) Even if we accept Marinucci's account, that still leaves Collins's troubling assertion -- left unanswered by the EEOC -- that King promised her information about the claims at issue and then never followed up with her;
(z) Whether the EEOC was obligated to provide the requested information is not an issue we decide here, but rather we find that if Collins had been awaiting promised-for information from King -- information that Big Way deemed relevant to its decision making -- then Big Way may well have been surprised by the Notice of Failure of Conciliation;
(aa) Here, the course of action most consistent with Congress's intent in passing Title VII is to stay proceedings and
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allow the parties to make a good faith effort at conciliation,3 see EEOC v. Prudential Federal Sav. & Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985) (explaining that if the EEOC has failed to exhaust its duty to conciliate, the district court, rather than dismissing the case, should stay proceedings to allow further conciliation); EEOC v. Pet, Inc., Funsten Nut Division, 612 F.2d 1001, 1002-1003 (5th Cir. 1980) (per curiam) (holding that where conciliation was "attempted in good faith, though prematurely aborted. . . . [a] better course would have been for the court to have ordered the stay permitted by 42 U.S.C. Section 2000e5(f)(1), insuring that . . . suit would be as Congress intended the last and not the first resort"); EEOC v. Sears, Roebuck & Co., 504 F.Supp. 241, 262 (D.C. Ill. 1980) ("The sufficiency of the conciliation effort presents a question of whether the court should stay the proceeding for further conciliation, not whether it has jurisdiction over the cause."); see also Moteles, 730 F.2d at 917; Ostapowicz, 541 F.2d at 398; and
(bb) To be clear, we expect all parties to negotiate with the utmost good faith,
It is hereby ordered that: 1. Defendant's motion is DENIED; 2. This action is STAYED while the parties undertake good faith conciliation efforts;
3 Big Way has made other arguments for summary judgment. We will not address those arguments until the parties have complied with Title VII's requirements. If good faith negotiations fail, there will be ample time for Big Way to reassert its other contentions.
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3. On March 1, 2006, and on the first business day of each month thereafter, the parties shall jointly REPORT BY FAX (215-580-2156) on the status of their conciliation efforts; and
4. The Clerk shall TRANSFER this case from our Active Docket to our Civil Suspense Docket.
BY THE COURT: /s/ Stewart Dalzell, J.
9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EEOC
vs. JOYCE FISHEL
vs. BIG WAY

:

CIVIL ACTION

:

:

:

NO. 05-4217

O R D E R

AND NOW, TO WIT: This 11th day of April, 2006, it having been reported that the issues between the parties in the above action has been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court , it is
ORDERED that the above action is DISMISSED with prejudice, pursuant to agreement of counsel without costs.

Civ 2 (8/2000) 41(b).frm

MICHAEL E. KUNZ, Clerk of Court
BY: S/Eileen Adler Eileen Adler Deputy Clerk

 
 Case 2:05-cv-04217-SD Document 5 Filed 09/30/2005 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY : CIVIL ACTION

COMMISSION

:

:

v.

:

:

BIG WAY, INC.

: NO. 05-4217

ORDER

AND NOW, this 30th day of September, 2005, upon

consideration of this reassigned case, the parties' stipulation

to consolidate this case with Civil Action No. 05-1883 (docket

entry #13 No. 3 for C.A. No. 05-1883), Joyce Fishel's motion to

intervene in Civil Action No. 05-4217 (docket entry #3 for C.A.

No. 05-4217), and the Court finding that consolidation will tend

to avoid unnecessary costs and delay without prejudicing any of

the parties, it is hereby ORDERED that:

1. Pursuant to Fed. R. Civ. P. 42(a), Civil Action

Nos. 05-1883 and 05-4217 are CONSOLIDATED;

2. The Clerk of Court shall TRANSFER all papers in

Civil Action No. 05-1883 to the file folder of Civil Action 05-

4217;

3. Joyce Fishel's motion to intervene is DENIED as

moot; and

4. The Clerk shall CLOSE Civil Action No. 05-1883

statistically.

BY THE COURT:

/s/ Stewart Dalzell, J.

 
 United States District Court Eastern District of Pennsylvania - Docket R... https://ecf.paed.uscourts.gov/cgi-bin/DktRpt.pl?532991615203455-L_3...
CLOSED, LEAD, STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:05-cv-04217-SD

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. BIG WAY, INC. Assigned to: HONORABLE STEWART DALZELL Cause: 28:451 Employment Discrimination

Date Filed: 08/09/2005 Date Terminated: 04/11/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

represented by STEPHANIE MARINO U.S. E.E.O.C. 21 SOUTH 5TH ST. SUITE 400 PHILADELPHIA, PA 19106-2515 215-440-2841 Email: stephanie.marino@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff JOYCE FISHEL

represented by MICHELE M. ROVINSKY MICHELE M. ROVINSKY, ESQUIRE 525 CARPENTER LANE PHILADELPHIA, PA 19119 215-843-9344 Fax: 215-843-3591 Email: mmrovinsky@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant BIG WAY, INC. trading as VALLEY GREEN INN
Defendant

represented by PATRICIA COLLINS ANTHEIL MASLOW & MACMINN LLP 131 W. STATE ST. POBOX 50 DOYLESTOWN, PA 18901 215-230-7500 Email: pcollins@ammlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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United States District Court Eastern District of Pennsylvania - Docket R... https://ecf.paed.uscourts.gov/cgi-bin/DktRpt.pl?532991615203455-L_3...

JACK OTT
Intervenor Defendant MR. SHING DAN c/o Valley Green Inn
Intervenor Defendant MR. KEN SWOPE

represented by PATRICIA COLLINS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by SHING DAN VALLEY GREEN ROAD AT WISSAHICKON CREEK PHILADELPHIA, PA 19128 PRO SE
represented by PATRICIA COLLINS (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/09/2005 08/09/2005 08/09/2005 09/15/2005 09/21/2005 09/30/2005
09/30/2005

#

Docket Text

1 COMPLAINT against BIG WAY, INC. , filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.(wgc, ) (Entered: 08/09/2005)
1 Summons Issued as to BIG WAY, INC.. Forwarded To: Counsel on 8/9/05 (wgc, ) (Entered: 08/09/2005)
DEMAND for Trial by Jury by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (wgc, ) (Entered: 08/09/2005)
2 WAIVER OF SERVICE Returned Executed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. BIG WAY, INC. waiver sent on 9/9/2005, answer due 11/8/2005. (jl, ) (Entered: 09/15/2005)
3 JOYCE FISHEL MOTION TO INTERVENE AS PARTY PLAINTIFF UNDER F.R.C.P. 24 (a), CERTIFICATE OF SERVICE..(jl, ) (Entered: 09/22/2005)
4 ORDER THAT THE ABOVE CAPTIONED CASE IS REASSIGNED FROM THE CALENDER OF THE HONORABLE JAN DUBOIS TO THE CALENDER OF THE HONORABLE STEWART DALZELL, AS RELATED TO CIVIL ACTION 05-1883; ETC.. SIGNED BY MICHAEL E. KUNZ ON 9/30/05. 9/30/05 ENTERED AND COPIES MAILED, E-MAILED.(jl, ) Modified on 9/30/2005 (jl, ). (Entered: 09/30/2005)
5 ORDER THAT PURSUANT TO FED.R.CIV.P.42 (a), CIVIL ACTION NOS.05-1883 AND 05-4217 ARE CONSOLIDATED; THE CLERK OF COURT SHALL TRANSFER ALL PAPERS IN CIVIL ACTION NO. 05-1883 TO THE FILE FOLDER OF CIVIL ACTION 05-4217; JOYCE FISHEL'S MOTION TO INTERVENE IS DENIED AS MOOT; THE CLERK SHALL CLOSE CIVIL ACTION NO. 05-1883 STATISTICALLY; ETC.. SIGNED BY JUDGE STEWART DALZELL ON 9/30/05. 10/3/05 ENTERED AND E-MAILED.(jl, ) (Entered: 10/03/2005)

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United States District Court Eastern District of Pennsylvania - Docket R... https://ecf.paed.uscourts.gov/cgi-bin/DktRpt.pl?532991615203455-L_3...

09/30/2005 10/17/2005
10/19/2005 10/19/2005 10/19/2005 10/27/2005 10/31/2005 11/07/2005 11/08/2005
11/11/2005 11/30/2005 01/04/2006

PAPERS TRANSFERRED IN FROM 05-1883 (jl, ) (Entered: 10/03/2005)
6 MOTION for Leave to File Amended Complaint filed by JOYCE FISHEL.Memorandum and Certificate of Service. (Attachments: # 1 # 2 Exhibit 1 - PHRC letter# 3 Exhibit 2 - Proposed Amended Complaint# 4 Exhibit A EEOC letter of determination# 5 Text of Proposed Order)(ROVINSKY, MICHELE) (Entered: 10/17/2005)
7 ORDER THAT PLAINTIFF'S JOYCE FISHEL'S MOTION TO AMEND THE COMPLAINT IS GRANTED; ETC.. SIGNED BY JUDGE STEWART DALZELL ON 10/18/05.10/19/05 ENTERED AND E-MAILED AND FAXED BY CHAMBERS. (jl, ) (Entered: 10/19/2005)
8 Intervenor COMPLAINT , filed by JOYCE FISHEL AGAINST SHING DAN, KEN SWOPE, CERTIFICATE OF SERVICE. (Attachments: # 1 CERTIFICATE OF SERVICE)(jl, ) (Entered: 10/19/2005)
2 INTVENOR Summons Issued as to SHING DAN AND KEN SWOPE. Forwarded To: MICHELE ROVINSKY on 10/19/05 (jl, ) Modified on 10/20/2005 (jl, ). (Entered: 10/19/2005)
9 MOTION to Dismiss and / or for Partial Summary Judgment on the Complaint of the Equal Employment Opportunity Commission filed by JACK OTT, BIG WAY, INC..Memorandum, Certificate of Service. (Attachments: # 1 # 2)(COLLINS, PATRICIA) (Entered: 10/27/2005)
10 AMENDED DOCUMENT by JACK OTT, BIG WAY, INC.. Amendment to 9 MOTION to Dismiss and / or for Partial Summary Judgment on the Complaint of the Equal Employment Opportunity Commission amended certificate of service. (COLLINS, PATRICIA) (Entered: 10/31/2005)
11 ANSWER to Complaint together with Affirmative Defenses by JACK OTT, BIG WAY, INC., Certificate of Service. (Attachments: # 1 Exhibit) (COLLINS, PATRICIA) Modified on 11/8/2005 (np). (Entered: 11/07/2005)
12 RESPONSE in Opposition re 9 MOTION to Dismiss and / or for Partial Summary Judgment on the Complaint of the Equal Employment Opportunity Commission filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A & B # 2 Exhibit Exhibit C# 3 Exhibit Exhibit D# 4 Exhibit Exhibits E & F)(MARINO, STEPHANIE) Modified on 11/9/2005 (np). (Entered: 11/08/2005)
13 SUMMONS Returned Executed by JOYCE FISHEL re: William Dominick served Summons and Complaint upon KEN SWOPE by delivery to person in charge of usual place of business. KEN SWOPE served on 10/31/2005, answer due 11/21/2005. (ROVINSKY, MICHELE) (Entered: 11/11/2005)
14 SUMMONS Returned Executed by JOYCE FISHEL re: William Dominick served Summons and Complaint upon SHING DAN by Personal Service. SHING DAN served on 11/21/2005, answer due 12/12/2005. (Attachments: # 1 Certificate of Service)(ROVINSKY, MICHELE) (Entered: 11/30/2005)
15 STIPULATION To Extend Time to Answer Complaint by BIG WAY, INC.. (COLLINS, PATRICIA) Modified on 1/5/2006 (md, ).(COPY FORWARDED TO CLERK/JUDGE FOR APPROVAL) (Entered: 01/04/2006)

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01/06/2006
01/06/2006 01/10/2006 01/10/2006 02/03/2006
02/21/2006 04/07/2006 04/11/2006

16 STIPULATION AND ORDER THAT DEFENDANT KEN SWOPE SHALL HAVE AN EXTENSION TO 1/10/06 TO ANSWER PLAINTIFF JOYCE FISHEL'S AMENDED COMPLAINT; ETC.. SIGNED BY JUDGE STEWART DALZELL ON 1/6/06. 1/6/06 ENTERED AND FAXED BY CHAMBERS.(jl, ) Modified on 1/11/2006 (jl, ). (Entered: 01/06/2006)
Update Answer Deadline T0 1/10/06 FOR DEFENDANT KEN SWOPE TO ANSWER THE AMENDED COMPLAINT (jl, ) (Entered: 01/11/2006)
17 ANSWER to Complaint by KEN SWOPE.(COLLINS, PATRICIA) (Entered: 01/10/2006)
18 NOTICE of Appearance by PATRICIA COLLINS on behalf of KEN SWOPE with certificate of service (COLLINS, PATRICIA) (Entered: 01/10/2006)
19 ORDER THAT DEFENDANT'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT IS DENIED; THIS ACTION IS STAYED WHILE THE PARTIES UNDERTAKE GOOD FAITH CONCILIATION EFFORTS; THE CLERK SHALL TRANSFER THIS CASE FROM OUR ACTIVE DOCKET TO OUR CIVIL SUSPENSE DOCKET; ETC.. SIGNED BY JUDGE STEWART DALZELL ON 2/3/06.2/3/06 ENTERED AND E-MAILED AND FAXED BY CHAMBERS. (jl, ) (Entered: 02/03/2006)
20 ANSWER to Intervenor Complaint by SHING DAN.(jl, ) (Entered: 02/21/2006)
21 ORDER THAT THE CLERK OF COURT TRANSFER SAID CASE FROM THE CIVIL SUSPENSE FILE TO THE CURRENT DOCKET FOR FINAL DISPOSITION; ETC.. SIGNED BY JUDGE STEWART DALZELL ON 4/7/06. 4/10/06 ENTERED AND E-MAILED.(jl, ) (Entered: 04/10/2006)
22 ORDER DISMISSING ACTION WITH PREJUDICE PURSUANT TO LOCAL RULE 41.1(b). SIGNED BY JUDGE STEWART DALZELL ON April 11, 2006. April 11, 2006 ENTERED AND COPIES E-MAILED.(ea, ) (Entered: 04/11/2006)

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