Case: 1:10-cv-02882-PAG Doc #: 1 Filed: 12/21/10 1 of 5. PageID #: 1

IN THE UNITED STATES DISTRICT COURT 
 FOR THE NORTHERN DISTRICT OF OHIO 


EQUAL EMPLOYMENT OPPORTUNITY ) 


COMMISSION,

) 


)

)

Plaintiff,

)

)

v.

)

)

KAPLAN HIGHER EDUCATION, INC., )

)

Defendant.

)

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

Case No. COMPLAINT

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended, to

correct unlawful employment practices on the basis of race and to provide appropriate

relief to a class of aggrieved Black job applicants and incumbents who were adversely

affected by such practices. As alleged with greater particularity in Paragraphs 7-10,

below, the U.S. Equal Employment Opportunity Commission ("Commission" or

"EEOC") alleges that since at least January, 2008, the Defendant Kaplan Higher

Education, Inc., (also known as Kaplan Career Institute) has engaged in an on-going,

nationwide pattern or practice of race discrimination against Black job applicants and

incumbents in violation of Title VII.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331,

1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections

706(0(1) and (3) and 707 of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. §§ 2000e-5(0(1) and (3) and 2000e-6 ("Title VII").

Case: 1:10-cv-02882-PAG Doc #: 1 Filed: 12/21/10 2 of 5. PageID #: 2
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Northern Ohio, and throughout the United States.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission" or "EEOC"), is the Agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(t)(1) and (3) and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f)(I) and (3) and 2000e-6. 4. At all relevant times, Defendant Kaplan Higher Education, Inc., ("KHEC") has continuously been a Delaware corporation doing business in Cuyahoga County, Ohio, 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 Section 701(b), (g) and (h) of Title 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, Charging Party Shandria S. Nichols filed a charge of discrimination 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 January, 2008, Defendant has engaged in unlawful employment practices at its facilities throughout the United States in violation of Sections 703(a)(I), (a)(2), and (k) of Title VII, 42 U.S.C. § 2000e-2(a)(I), (a)(2) and (k).
2 


Case: 1:10-cv-02882-PAG Doc #: 1 Filed: 12/21/10 3 of 5. PageID #: 3
8. Since at least January, 2008, Defendant has subjected a class of aggrieved Black job applicants and incumbents throughout the United States to an ongoing pattern or practice of discriminatory failure to hire such persons because of their race, Black, in violation of Title VII. In this regard, Defendant has used, and continues to use, a selection criterion for hiring and discharge, namely, credit history information, that has had, and continues to have, a significant disparate impact on Black job applicants and incumbents, is not job-related and consistent with business necessity, and for which there are appropriate, less-discriminatory alternative selection procedures.
9. The effect of the practices complained of in paragraphs 7-8, above, has been to deprive a class of Black job applicants and incumbents of equal employment opportunities and otherwise adversely affect their status as applicants because of their race.
10. The unlawful employment practices complained of in paragraphs 7-9, above, are part of a continuing course of race discrimination perpetrated against Black job applicants and incumbents by Defendant that has persisted since at least January,
2008.
PRAYER FOR RELIEF 

Wherefore, the Commission respectfully requests that this Court: 
 A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in race, discrimination, including discriminatory denial of hire and discharge, use of selection criteria with significant disparate impact on Black job applicants and incumbents that are not job-related and consistent with business necessity or for which
3 


Case: 1:10-cv-02882-PAG Doc #: 1 Filed: 12/21/10 4 of 5. PageID #: 4
there less-discriminatory alternatives, and any other employment practice which discriminates on the basis of race.
B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for Black persons, and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant to make whole a class of aggrieved Black job applicants, deterred applicants and incumbents 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 unlawful employment practices, including but not limited to instatement and front pay in lieu thereof.
D. Grant such further relief as the Court deems necessary and proper in the public interest.
E. Award the Commission its costs ofthis action. Respectfully submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC P. DAVID LOPEZ General Counsel
DEB M. LAWRENCE Regional Attorney EEOC-Philadelphia District Office City Crescent Building, 3rd Floor 10 South Howard Street
4

Case: 1:10-cv-02882-PAG Doc #: 1 Filed: 12/21/10 5 of 5. PageID #: 5

Baltimore. Maryland 21201

Telephone number: (410) 209-2734

Facsimile num er: (410) 962-4270

~ ~ I

'

MARIA KATE OEHRINGER Supervisory Tri I Attorney

~ /

EEOC-Baltimor Field Office

City Crescent Building, 3rd Floor

10 South Howard Street

Baltimore, Maryland 21201

Telephone number: (410) 209-2722

Facsimile number: (410) 962-4270

lsi Jeffrey A. Stern
Jeffrey A. Stern (Ohio Bar No. 0020107) Jeffrey.Stern@eeoc.gov U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Cleveland Field Office AJC Federal Bldg. 1240 East Ninth St., Ste. 3001 Cleveland, OH 44199 (216) 522-7458 (216) 522-7430 (fax)

5

 
 Case: 1:10-cv-02882-PAG Doc #: 58 Filed: 03/14/12 1 of 6. PageID #: 1292

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

Equal Employment Opportunity

)

Commission,

) Case No. 10-CV-2882

)

Plaintiff,

) Judge Patricia A. Gaughan

)

vs.

) AMENDED COMPLAINT

)

Kaplan Higher Education

)

Corporation

)

)

and

)

)

Kaplan, Inc.,

)

)

and

)

)

Iowa College Acquisition Corporation )

d/b/a Kaplan University

)

)

Defendants.

)

)

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended, to

correct unlawful employment practices on the basis of race and to provide appropriate

relief to a class of aggrieved Black job applicants and incumbents who were adversely

affected by such practices. As alleged with greater particularity in Paragraphs 9-12,

below, the U.S. Equal Employment Opportunity Commission ("Commission" or

"EEOC") alleges that since at least January, 2008, Defendants Kaplan Higher Education

Corporation (captioned in the Complaint, Doc. #1, as Kaplan Higher Education, Inc. and

also known as Kaplan Career Institute), Kaplan, Inc. and Iowa College Acquisition

Corporation d/b/a Kaplan University (“ICAC” or “Kaplan University”) have engaged in

Case: 1:10-cv-02882-PAG Doc #: 58 Filed: 03/14/12 2 of 6. PageID #: 1293
an on-going, nationwide pattern or practice of race discrimination against Black job applicants and incumbents in violation of Title VII.
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) and 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and 2000e-6 ("Title VII"). 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Northern Ohio, and throughout the United States.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission” or “EEOC”), is the Agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(f)(1) and (3) and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and 2000e-6. 4. At all relevant times, Defendant Kaplan Higher Education Corporation, (“KHEC” or “Employer”) has continuously been a Delaware corporation doing business in Cuyahoga County, Ohio, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Kaplan, Inc. (“KI” or “Successor”) has been a successor to both Employer KHEC above and Successor ICAC below and has continuously been a Delaware corporation doing business in the State of Ohio and has continuously had at least 15 employees.
2

Case: 1:10-cv-02882-PAG Doc #: 58 Filed: 03/14/12 3 of 6. PageID #: 1294
6. At all relevant times, Defendant Iowa College Acquisition Corporation d/b/a Kaplan University (“ICAC” or “Kaplan University”) has been a successor of KHEC and has continuously been a Delaware corporation doing business in the State of Ohio and throughout the United States and has continuously had at least 15 employees.
7. At all relevant times, Defendants KHEC, KI and ICAC have continuously been employers engaged in an industry affecting commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 8. More than thirty days prior to the institution of this lawsuit, Charging Party Shandria S. Nichols filed a charge of discrimination with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 9. Since at least January, 2008, KHEC has engaged in unlawful employment practices at its facilities throughout the United States in violation of Sections 703(a)(1), (a)(2), and (k) of Title VII, 42 U.S.C. § 2000e-2(a)(1), (a)(2) and (k). 10. Since at least January, 2008, KHEC has subjected a class of aggrieved Black job applicants and incumbents throughout the United States to an ongoing pattern or practice of discriminatory failure to hire such persons because of their race, Black, in violation of Title VII. In this regard, KHEC has used, and continues to use, a selection criterion for hiring and discharge, namely, credit history information, that has had, and continues to have, a significant disparate impact on Black job applicants and incumbents, is not job-related and consistent with business necessity, and for which there are appropriate, less-discriminatory alternative selection procedures.
3

Case: 1:10-cv-02882-PAG Doc #: 58 Filed: 03/14/12 4 of 6. PageID #: 1295
11. Since at least July, 2011, Defendants KI and ICAC have been and continue to be successors of KHEC, and have continued to provide substantially the same educational and career services, through the same subsidiary business units, Kaplan College/Kaplan Career Institute campuses and Kaplan University, as did KHEC, using substantially the same employees and facilities as did KHEC.
12. Since at least July, 2011, Defendants KI and ICAC have continued the employment practices alleged to be unlawful in paragraphs 8 and 9 above.
13. The effect of the practices complained of in paragraphs 9-12, above, has been to deprive a class of Black job applicants and incumbents of equal employment opportunities and otherwise adversely affect their status as applicants because of their race.
14. The unlawful employment practices complained of in paragraphs 9-12, above, are part of a continuing course of race discrimination perpetrated against Black job applicants and incumbents by Defendant Employer KHEC, Defendant Successor KI and Defendant Successor ICAC that has persisted since at least January, 2008.
15. In 2011, Defendant Employer KHEC underwent a corporate reorganization. As a result of the reorganization, Defendants KI and ICAC are parties to be joined as Defendants under Rule 19(a)(1)(A).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in race, discrimination, including discriminatory denial of hire and discharge, use of selection criteria with significant disparate impact on Black job applicants and
4

Case: 1:10-cv-02882-PAG Doc #: 58 Filed: 03/14/12 5 of 6. PageID #: 1296
incumbents that are not job-related and consistent with business necessity or for which there less-discriminatory alternatives, and any other employment practice which discriminates on the basis of race.
B. Order Defendants to institute and carry out policies, practices, and programs which provide equal employment opportunities for Black persons, and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendants to make whole a class of aggrieved Black job applicants, deterred applicants and incumbents 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 unlawful employment practices, including but not limited to instatement and front pay in lieu thereof.
D. Grant such further relief as the Court deems necessary and proper in the public interest.
E. Award the Commission its costs of this action. Respectfully submitted, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC P. DAVID LOPEZ General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel DEBRA M. LAWRENCE Regional Attorney EEOC-Philadelphia District Office City Crescent Building, 3rd Floor
5

Case: 1:10-cv-02882-PAG Doc #: 58 Filed: 03/14/12 6 of 6. PageID #: 1297
10 South Howard Street Baltimore, Maryland 21201 Telephone number: (410) 209-2734 Facsimile number: (410) 962-4270 /s/Maria Kate Boehringer by consent MARIA KATE BOEHRINGER Supervisory Trial Attorney EEOC-Baltimore Field Office City Crescent Building, 3rd Floor 10 South Howard Street Baltimore, Maryland 21201 Telephone number: (410) 209-2722 Facsimile number: (410) 962-4270 /s/ Jeffrey A. Stern Jeffrey A. Stern (Ohio Bar No. 0020107) Jeffrey.Stern@eeoc.gov U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Cleveland Field Office AJC Federal Bldg. 1240 East Ninth St., Ste. 3001 Cleveland, OH 44199 (216) 522-7458 (216) 522-7430 (fax)
6

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Equal Opportunity Employment

)

Commission,

)

)

Plaintiff,

)

)

Vs.

)

)

Kaplan Higher Learning Edu. Corp., )

et al.,

)

)

Defendants.

)

CASE NO. 1:10 CV 2882 JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order

INTRODUCTION This matter is before the Court upon Defendants’ Motion for Summary Judgment (Doc. 79) and the EEOC’s Motion for Partial Summary Judgment (Doc. 80). Also pending are the Defendants’ Motion to Exclude the Reports and Testimony of Dr. Kevin R. Murphy (Doc. 82) and the EEOC’s Motion to Exclude Defendant’s Expert Michael G. Aamodt (Doc. 90). This is an employment case alleging disparate impact. For the following reasons, the motion to exclude plaintiff’s expert is GRANTED. Defendants’ Motion for Summary Judgment is also
1

GRANTED. The EEOC’s Motion to Exclude Defendant’s Expert Michael G. Aamondt and its Motion for Partial Summary Judgment are DENIED as MOOT.
FACTS Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), brings this lawsuit against defendants, Kaplan Higher Education Corporation (“KHEC”), Kaplan, Inc. (“KI”), and Iowa College Acquisition Corporation d/b/a/ Kaplan University (“KU”), alleging that defendants’ use of credit reports in the hiring process has an unlawful disparate impact on Black applicants.1 The facts of this case are undisputed. Defendants are groups of educational institutions and operate in a highly regulated industry. The Department of Education (“DOE”) provides financial aid to many students enrolled at KU and KHEC. As such, employees working in defendants’ financial aid departments must utilize the National Student Loan Data System (“NSLDS”), which is DOE’s student aid database. DOE requires its participants to have quality controls in place that limit access to student and parent information. Prior to 2004, defendants discovered breaches of their systems in which business officers misappropriated student payments. As a result, defendants took additional steps to ensure compliance with financial rules and regulations, as well as DOE guidelines. Shortly thereafter, defendants began utilizing credit history in order to ascertain whether applicants for certain emloyment positions were under “financial stress or burdens” that might compromise their

1

The parties refer to the disparately impacted group as “Black

applicants.” For the sake of consistency, the Court will employ the

parties’ terminology.

2

ethical obligations. The affected positions included:

•

positions involving substantial operating control;

•

positions involving access to financial aid or student accounts; and

•

positions involving responsibility for company financials or significant cash

handling.

Defendant KU’s use of credit information

In 2008, KU hired General Information Services (“GIS”) to perform credit checks on

candidates for hire who had been given conditional offers of employment. GIS reviewed

applicants’ credit reports for the following information:

•

Instances in which the social security number does not match the social security

number the credit bureau has on file;

•

No credit and 25 years or older;

•

Any bankruptcy;

•

Overdue child support payments totaling $2,000 or more;

•

Current garnishments on earnings;

•

Outstanding civil judgments totaling $2,000 or more;

•

Any individual or combined past due balances totaling $2,000 or more that are at

least 60 days overdue;

•

Outstanding collections totaling $2,000;

•

Outstanding individual or combined tax liens totaling $2,000 or more; and

•

Aggregate charge-offs of $1,000 within the preceding one year or $2,500 within

the preceding five years.

In the event a candidate’s credit history contained any of the aforementioned information,

GIS flagged the applicant “Review” and returned a summary to KU identifying the issues. GIS

3

did not inform KU of the race of any applicant. Over the years, the manner in which KU utilized the information provided by GIS
changed. From January of 2008 through January of 2011, KU approved all job applicants for
financial aid positions unless the applicant’s credit report showed defaulted student loans. These applicants were rejected because DOE requirements prevented these individuals from accessing the NSLDS and, according to KU, access to NSLDS was an essential function of financial aid positions. During this time period, KU rejected 23 of 405 applicants because of defaulted student loans.2
For non-financial aid positions, if GIS assigned an applicant’s credit report as “Review,” a hiring manager could request an override of GIS’s determination from KU’s Controller. This procedure varied over time. From January through May of 2008, the time during which Paul Klier acted as Controller, any applicant whose file GIS flagged as “Review,” was automatically rejected for hire. Sometime in mid-2008, Howard Rogoff assumed some of Klier’s duties, including reviewing the applicant files flagged by GIS. Rogoff testified that rather than reject all applicants flagged as “Review,” he implemented a “holistic” approach. Rogoff looked at whether an applicant had “multiple” items on the GIS checklist. Rogoff determined whether, in his judgment, an applicant’s credit history created an “increased risk” to the organization. From September of 2008 through March of 2010, KU rejected 25 of 81 non-financial aid applicants. In March of 2010, Rogoff amended the criteria he used in assessing the applicants marked

2

Thirteen other applicants were rejected for non-credit reasons such

as felony convictions.

4

“Review.” He relaxed the criteria he used to determine a candidate “ineligible.” For example, instead of rejecting an applicant with $2,000 in past due balances that were at least 60 days overdue, he considered only balances of greater than $5,000 that were at least 90 days overdue. Other similar changes were made in connection with Rogoff’s assessments. Between March of 2010 and January of 2011, Rogoff rejected only one candidate based on the credit report. In January of 2011, HireRight, Inc. replaced GIS as the entity providing credit reports. The criteria used to flag an applicant as “Review” differed from those used by GIS. At this time, KU reviewed all applicants that HireRight flagged as “Review.”
Defendant KHEC’s use of credit information Unlike KU, KHEC did not extend conditional offers of employment. As a result, many candidates were not offered positions even though KHEC had not yet learned the results of the credit check. In addition, even if a credit report was graded “Review” by GIS, human resources approved the candidate for hire if the report was flagged for no credit history and the candidate is under 25 years old. If GIS assigned applicant as “Review” for any other reason, human resources forwarded the file to Controller Kevin Corser. Corser reviewed all of the information contained in the report in order to determine whether the individual might commit fraud or theft. If Corser recommended against hiring an applicant, the recommendation was forwarded to KHEC’s Group Vice President in charge of the particular school to which the applicant applied. The Group Vice President made the final determination. In September of 2009, Rogoff replaced Corser as the Controller responsible for reviewing credit reports. Rogoff also forwarded his recommendation to the Group Vice President for final determination. Like KU, KHEC also contracted with HireRight in January of 2011. KHEC, however, used HireRight for positions
5

above the Director Level. For lower-level positions, KHEC continued to use GIS. In November of 2011, KHEC’s Chief Financial Officer, Jerry Dervin, assumed responsibility for reviewing credit reports supplied by both HireRight and GIS. Dervin used the information “to some degree” and considers the position and whether the applicant has “nonmedical charged-off debt in excess of $5,000.”
Plaintiff EEOC’s use of credit reports The EEOC also runs credit checks on job applicants. It appears that the Office of Personnel Management (“OPM”), screens applicants for jobs with the EEOC. According to the EEOC’s Personnel Suitability and Security Program Handbook, credit checks are required for 84 of the 97 positions at the EEOC. The handbook bases the need for credit checks on the notion that “overdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.” According to plaintiff, it has never “unfavorably adjudicated employees based on their debt issues.” This lawsuit The EEOC filed this lawsuit3 alleging that defendants’ use of credit history in making hiring decisions violates certain provisions of Title VII, i.e., 42 U.S.C. § 2000e-2(a)(1), (a)(2) and (k), because the practice has a disparate impact on Black applicants. Defendants move for summary judgment and plaintiff moves for partial summary judgment. Both motions are opposed. In addition, both parties move to strike the opposing side’s expert reports. These motions are also both opposed.

3

Plaintiff amended the complaint after the Court dismissed certain

claims as time-barred.

6

STANDARD OF REVIEW Rule 56(a) of the Federal Rules of Civil Procedure, as amended on December 1, 2010, provides in relevant part that: A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed .R.Civ.P. 56(a). Rule 56(e) provides in relevant part that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ... [and] grant summary judgment if the motion and supporting materials—including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e). Although Congress amended the summary judgment rule, the “standard for granting summary judgment remain unchanged” and the amendment “will not affect continuing development of the decisional law construing and applying” the standard. See, Fed.R.Civ.P. 56, Committee Notes at 31. Accordingly, summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings,
7

depositions, answers to interrogatories, and admissions on file, together with affidavits,” if any, which it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmoving party. The court must afford all reasonable inferences and construe the evidence in the light most favorable to the nonmoving party. Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (citation omitted); see also United States v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir. 1985). However, the nonmoving party may not simply rely on its pleading, but must “produce evidence that results in a conflict of material fact to be solved by a jury.” Cox, 53 F.3d at 150. Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “the mere existence of a scintilla of evidence in support of plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (quoting Anderson, 477 U.S. at 52 (1986)). Moreover, if the evidence is “merely colorable” and not “significantly probative,” the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted). ANALYSIS In order to establish a prima facie case of employment discrimination based on a disparate impact theory, the plaintiff must: (1) identify a specific employment practice that is
8

being challenged; and (2) establish, through statistical means, that the identified employment practice “caused the exclusion of applicants...because of their membership in a protected group.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). See also, Grant v. Metro. Gov’t of Nashville & Davidson Cnty., 446 Fed.Appx.737, 740 (6th Cir. Aug. 26, 2011).
Assuming arguendo that the use of credit checks in the manner employed by defendants constitutes a “specific employment practice,” the Court finds that plaintiff nonetheless fails to present a prima facie case of disparate impact discrimination because plaintiff fails to provide reliable statistical evidence of discrimination.
EEOC’s expert Plaintiff offers the testimony and report of Dr. Kevin R. Murphy in support of its position that defendants’ use of credit reports disparately impacted Black applicants in violation of Title VII. Defendants move to exclude the testimony and report on the grounds that Dr. Muphy’s method of determining race is scientifically unsound. In addition, defendants argue that Dr. Murphy’s sample is not representative of the applicant pool. Defendants further claim that Dr. Murphy’s analysis fails to account for non-discriminatory variables, including socio-economic status, that could account for any disparate impact. The EEOC disputes these arguments.
a. “Race raters” In order to determine the race of a particular applicant, the EEOC subpoenaed records from the Departments of Motor Vehicles (“DMVs”) from 38 states and the District of Columbia. Fourteen states and the District of Columbia provided records that identified an applicant’s race. The remaining 24 states provided copies of the driver’s license photos pertaining to the applicants. In order to determine the race of applicants from these states, Dr. Murphy assembled
9

a team of five “race raters,” who were asked to review each photograph and determine whether the individual is “African-American,” “Asian,” “Hispanic,” “White,” or “Other.” Individuals considered “multi-racial” were adjudged “Other.” Dr. Murphy required that four of the five “race raters” agree (80%) in order to consider that applicant’s race. In all, the “race raters” were shown 891 photographs.4 In 11.7% of the photographs, the “race raters” were unable to achieve an 80% consensus with regard to the applicant’s race. The “race raters” worked individually in assigning race, not as a group. Thus, each “race rater” came to an independent determination of race without conferring with other “race raters.” The group was comprised of individuals with advanced degrees in cultural anthropology, education, human development, psychology and economics. Although the “race raters” have experience involving multiple racial populations, none of them have prior experience in determining race via visual means. In some instances, multiple photographs of the same individual were provided. In that case, Dr. Murphy or a staff member chose the “clearest” photograph to provide to the “race raters.” The “race raters” were provided with the applicant’s name along with the photograph.
Defendants argue that the judgment of these “race raters,” as to an applicant’s race is nothing more than guesswork, which results in inherently unreliable data. According to defendants, Dr. Murphy fails to identify any scientific study supporting the use of “race raters.” Nor does Dr. Murphy point to any evidence suggesting this type of analysis has been tested, subjected to peer review, or accepted by the scientific community. Defendants further argue that

4

It appears that 15 additional photographs were obtained after Dr.

Murphy filed his initial report. These photographs were analyzed

by a different group of three “race raters,” which included Dr.

Murphy and two staff members. A 100% consensus was reached

for these 15 photographs.

10

Dr. Murphy did nothing in advance to establish an error rate for the methodology. Rather, after his final analysis, he compared the results of the photo review of 57 applicants for which he had also possessed race data from the DMV or other supporting race data. According to defendants, this sample set is too small to make accurate predictions about a data set containing 906 photographs. This is especially so given that “race” is the most important data field in this case. Defendants also claim that bias may result because the “race raters” possessed the names of the applicants. In other words, knowledge of the applicant’s name may affect what race the applicant is assigned. Defendants argue that Dr. Murphy should have omitted from consideration individuals with multiple photographs rather than allowing a subjective determination of which photograph is the “clearest.”
The EEOC argues that in response to defendants’ motion challenging the use of “race raters,” Dr. Murphy performed a new analysis to rebut defendants’ argument. According to the EEOC, the new analysis shows that even excluding all of the applicants for which race was identified based on DMV photographs, Dr. Murphy still concludes that the use of credit checks has a disparate impact on Black applicants. In addition, the panel reached a consensus with regard to 88.3% of the photographs. The EEOC claims that defendants fail to cite to any research or case law to support its argument that the conclusions reached by the “race raters” are unreliable.
The EEOC points out that the comparison of the 57 applicants for which both photographic and “other” indications of race were present confirms the reliability of the panels’ conclusions. According to the EEOC, the cross-checking of the 57 applicants is not a “sample” as that term is used in scientific research. Rather, it is “anecdotal corroboration” of the
11

reliability of the study. The EEOC claims that even if the data relied on by the “race raters” is
disputed, i.e., the Court refuses to consider the race of the applicants as depicted in Dr. Murphy’s
study, the applicants’ race simply remains a “disputed issue of fact.” Therefore, whether Dr.
Murphy can offer expert testimony regarding the race of the individual applicants is not
dispositive. The EEOC claims that defendants failed to comply with the EEOC’s Uniform
Guidelines on Employee Selection Procedures, which require employers to “maintain data from
which the adverse impact of their selection procedures can be determined.” As such, “defendant
filed no record evidence showing that it collected or maintained the required...data.”
In response, defendants argue that EEOC’s guidelines are not binding on employers and
do not excuse the EEOC’s failure to obtain race information directly from the applicants.
According to defendants, the EEOC learned that defendants do not retain race data on applicants
in 2009, giving them ample time to obtain race information by other means. Defendants argue
that the EEOC could have simply contacted the actual candidates themselves in order to ascertain the relevant race data.5
The admissibility of expert testimony is governed by Fed. R. Evid. 702, which provides,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

5

The EEOC argues that phone surveys are not an acceptable method

of determining race because the response rates to the surveys

themselves suffer from racial disparities.

12

Under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 597, 113 S.Ct. 2786 (1993), the trial judge serves as a “gate keeper” to determine whether an expert's testimony is reliable and relevant. “The trial judge has considerable leeway in deciding how to go about determining whether particular expert testimony is reliable.” U.S. v. Sanders, 59 Fed.Appx. 765, 767 (6th Cir. March 7, 2003)(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167)).
The Sixth Circuit has noted, Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. Fed.R.Evid. 702 (advisory notes). The specific factors explicated by the Daubert court are (1) whether the expert's technique or theory can be or has been tested; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community. Avery Dennison Corp. v. Four Pillars Enterprise Co., 45 Fed.Appx. 479, 483 (6th Cir. Sept. 3, 2002). Upon review, the Court finds that the expert reports and testimony provided by Dr. Murphy are inadmissible because plaintiff fails to present sufficient evidence that the use of “race raters” is reliable. Simply put, plaintiff offers no evidence sufficient to satisfy any of the Daubert factors. Plaintiff offers no indication that the use of “race raters” has been or could be tested. Even assuming that race rating is a technique susceptible to testing, plaintiff wholly fails to provide any known or potential rate of error in the technique employed by the “race raters.” When challenged by defendants in this regard, plaintiff points out that Dr. Murphy “corroborated” the conclusions reached by the race raters. Specifically, he avers that there were
13

47 individuals for whom the DMV produced both photographic and race identification information. Out of these 47 individuals, there was 95.7% agreement between the conclusions reached by the “race raters” and the race identification provided by the DMV. In addition, there were both photographs and race information provided by “PeopleSoft” for 10 applicants. Of these 10, the “race raters” and the data contained in “PeopleSoft” matched “at least 80%” of the time. In response, defendants argue that a sample size of 57 is much too small to provide any degree of validation to the “race rating” process. Plaintiff acknowledges that the sample is not being utilized as a “scientific sample.” Rather, Dr. Murphy indicates in his declaration as follows:
In his November 30, 2012 Declaration, Dr. Saad criticizes this evidence as a “sample size” that is “too small.” However, this evidence is not a “sample” as that term is used in scientific research. Instead, the evidence represents the cross-references from my data set where photos were rated for individuals who were also race identified by some other source (e.g. DMV spreadsheet or “PeopleSoft”). While that evidence does not, alone, establish the reliability of my photo rating methodology, it does support the conclusion that the methodology is reliable. As characterized by plaintiff, the cross-referencing the conclusions of the race raters with other data is used only to show “anecdotal corroboration.” The Court finds, however, that “anecdotal corroboration” is insufficient to substitute for a “rate of error” as discussed in Daubert. In order to establish the reliability of the analysis, the Court must be convinced that the rate of error is within acceptable parameters. Here, however, plaintiff acknowledges that the “sample” is not intended to support a scientific analysis. Accordingly, the Court finds that plaintiff fails to show that the “race rating” process has a statistically acceptable rate of error. Likewise, plaintiff fails to show that the process of “rating race” by visual means has been the subject of peer review or publication. Although the parties cite cases in which other
14

studies have been done involving the use of “race raters,” there is no indication that these studies were subject to peer review. Moreover, the courts considering the issue disfavor reliance on similar studies. See, e.g., United States v. Mesa-Roche, 288 F.Supp.2d 1172, n.50 (noting that study in which teams of three persons studied photos to determine race was “seriously flawed” because instances in which team members could not agree were discarded, thus resulting in the overrepresentation of blacks); See also, United States v. Duque-Nava, 315 F.Supp.2d 1144, at n.47 (same); Smith v. Chrysler Financial Co., 2004 WL 3201002 (D.N.J. Dec. 30, 2004)(rejecting data compilation process which consisted of examining black and white photocopies of driver’s licenses because the analysis had “such great potential for error.”).
Plaintiff relies on United States v. Alcaraz-Arellano, 302 F.Supp.2d 1217, 1230 (D. Kan. 2004), in which the court cited a study indicating that “there is little doubt that there is high reliability in determining race with regard to Blacks and Caucasians.” The Court agrees with defendants, however, that plaintiff fails to provide a complete picture of the case in that the court went on to state that distinguishing between “Whites and Hispanics is a ‘difficult task’ and subject to error.” Id. In this case, the “race raters” were asked to distinguish among five race categories, including a category identified as “other,” which itself included individuals deemed “multi-racial.” Contrary to plaintiff’s reliance on Alcaraz-Arellano, the “race raters” were not asked to identify applicants as only either Black or Caucasian.
In addition, plaintiff fails to establish that the “race rating” analysis was subjected to proper controls. The Court is greatly concerned that Dr. Murphy was involved in both the statistical analysis related to the race data, and the determination of the race data itself. Where multiple photos existed of the same applicant, Dr. Murphy (or his staff) determined which photo
15

was “the clearest” and forwarded that photo on to the “race raters.” Even more troubling, Dr. Murphy sat on one of the panels that determined the race of 15 of the applicants. Accordingly, in those instances, Dr. Murphy both determined the underlying fact of race and also analyzed the significance of his own determinations in concluding that defendants’ use of credit reports disparately impacted Black applicants. In addition, the “race raters” were provided the names of the applicants, which may create unintended bias on the part of the panel. For example, in a close case, an individual may be likely to “rate” someone as “Hispanic” as opposed to “Caucasian” if her surname is Gonzalez, a traditionally Hispanic surname.6 This may be so even if the applicant is in fact Caucasian and married into an Hispanic family, or simply has the surname Gonzalez and is not in fact Hispanic at all.
Plaintiff also presents no evidence that determining race by visual means is generally accepted in the scientific community. In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate “only if an employee refuses to self-identify.7” In fact, even if an employer’s visual belief as to an employee’s race differs from that disclosed by the employee, the employer must rely on the race as identified by the employee. The EEOC argues that defendants’ “consternation” over the EEOC’s own guidelines is “exaggerated.” According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect

6

Surprisingly, the EEOC suggests that Dr. Murphy’s race rating

team properly utilized the names on the photographs to corroborate

race. The Court does not believe that determining race (even

solely for corroboration) based on an individual’s name is

appropriate.

7

Http://www.eeoc.gov/employers/eeo1/qanda-implementation.cfm

(question 14)

16

‘individual dignity.’ Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race8
The Court is also concerned at the lack of experience of the panelists. Although plaintiff argues that each individual “race rater” has extensive experience with “multiple racial populations,” not one of them has experience in identifying race via visual means.9 In response, plaintiff argues that the racial composition of the applicant pool is a factual question, not one requiring expert analysis. As such, the Court could allow the jury to determine the race of each applicant. Assuming arguendo that such a process would be admissible at trial, plaintiff’s expert report and testimony rely on the data as determined by the “race raters.” In that defendants have moved for summary judgment, plaintiff must be able to provide some evidence at this juncture demonstrating that the use of credit reports has a disparate impact on Black applicants. Because plaintiff’s expert relied on data obtained by unreliable means, the Court finds that whether the jury could ultimately “correct” the process employed by the “race raters” is irrelevant.
Plaintiff also argues that even if the Court disregards all of the applicants for which race was determined by the “race raters,” there is still sufficient information to conclude that the use of credit reports disparately impacts Black applicants. Specifically, Dr. Murphy avers as

8

Although not dispositive, it is noteworthy that the EEOC did not

contact the applicants directly and instead chose to assign a race to

the applicants, a process which is inconsistent with its policies

promoting personal dignity.

9

It is unclear to the Court how an advanced degree in economics,

for example, would make an individual particularly adept at

determining race.

17

follows: In Kaplan’s November 30, 2012 motion to exclude me as an expert Kaplan challenges generally the reliability of race-identifying an individual based on his or her DMV photo. However, even if one excludes from my data set all individuals who were race identified by DMV photo alone, the conclusion does not change. In response to Kaplan’s November 30, 2012 motion, I removed from my data set the individuals who were race identified by DMV photo alone. Then I re-analyzed the data set. As explained in Exhibit D to this Declaration, the conclusion was the same. This reanalysis still shows that Kaplan’s credit checks have a significant disparate impact on African Americans.
(Doc. 92 at ¶ 18). In response to this argument, defendants appear to argue that production of various parts
of Dr. Murphy’s report is untimely. Defendants do not mention this analysis in particular, and appear to argue that the “last” report provided by Dr. Murphy occurred on November 8, 2012. Thus, it is not clear to the Court whether this particular analysis was provided to defendants on November 8, 2012, or whether defendants saw the analysis for the first time on December 21, 2012, along with plaintiff’s brief in opposition. Regardless, the Court finds that this new analysis is untimely and will not consider it for purposes of summary judgment. Aside from the untimeliness, the Court is greatly concerned that there is no indication that the sample is random. Rather, it appears that the sample would consist of only those specific individuals for which race data was provided. There is no indication, for example, that the data is fairly distributed among geographic areas or is in any other way “representative” of the applicant pool as a whole. As discussed more thoroughly below, the “correction” made by Dr. Murphy to exclude all “race rated” applicants does not save the report and testimony.
Because the use of “race raters” fails to satisfy any of the Daubert factors, the Court finds
18

defendants’ motion to exclude to be well-taken.10
b. Representative sample
Defendants argue that even if the Court considered “race rating” as performed in this case
to be a scientifically sound method for determining race, Dr. Murphy’s testimony and report
should nonetheless be excluded because the sample he relied on is not representative of the
applicant pool as a whole. According to defendants, Dr. Murphy’s data set consisted of 4,670
individuals, which was not a complete set of all applicants in the relevant time period. Of those
4,670 individuals, Dr. Murphy sampled 1,090 of the applicants. Defendants argue that Dr.
Murphy possessed information regarding 800 additional applicants, yet did not include these
individuals in his analysis. In addition, defendants claim that Dr. Murphy acknowledged that his
sample was not random and that, instead, he included only those individuals for whom he
possessed three categories of information. As a result, the data results obtained by Dr. Murphy
are skewed and unreliable. By way of example, defendants’ expert avers that the rate at which
individuals failed to credit check when reviewing the entire set of data is 13.3%. Yet, Dr.
Murphy’s subset of data has an overall failure rate of 23.8%. Similarly, there is a significant
difference in the numbers of individuals from each state:
Dr. Murphy included 214 Georgia residents in his analysis. In other words, Georgia residents made up 19.6% of Dr. Murphy’s sample of 1,090. His entire set of 4,670, however, included 474 residents, and Georgia residents comprised only 10.1% of the individuals reflected in the GIS data. Dr. Murphy similarly over- or under- utilized other States in his analysis. For instance, Wisconsin residents made up only .6% of the individuals in Dr. Murphy’s sample, but comprised 7.3% of the applicants in his entire
10 In a footnote, defendants argue that Dr. Murphy’s reliance on the race raters analysis is hearsay and should be excluded on that basis as well. The Court need not address this issue as the expert report and testimony are inadmissible for the other reasons set forth herein. 19

data set. (Doc. 84 at ¶ 11).
Defendants also point to other mistakes and errors Dr. Murphy made in conducting his analysis.
In response, plaintiff argues that defendants fail to provide evidence that the inclusion of additional applicants would have resulted in a finding of “no disparate impact.” Plaintiff further argues that Dr. Murphy’s data set was based on appropriate criteria. Specifically, to be included in Dr. Murphy’s data set, Dr. Murphy required evidence showing: the outcome of the applicant’s credit check, the applicant’s race, and the applicant’s “identification data,” such as listed name. Plaintiff argues that defendants’ expert did not opine that these requirements were “unnecessary” or that their use rendered the data unreliable. Plaintiff also claims that each time defendants’ expert criticized an aspect of Dr. Murphy’s report, Dr. Murphy amended his analysis and obtained the same result, namely, that the use of credit checks has a disparate impact on Black applicants. Plaintiff does not address the specific argument that the data sample used by Dr. Murphy is neither random nor representative of the applicant pool as a whole.
Upon review, the Court agrees with defendants. Although the Court does not go so far as to require that a sample necessarily be perfectly random or precisely representative of the whole, in this case defendants have proffered evidence demonstrating that the sample11 was not taken randomly. Dr. Murphy testified as follows:
Q: Was it your intention in the process to include everyone for whom you had either a DMV race status of a picture rated race status? A: Our intention in the process was to include everyone for whom we had race
11 In reality, Dr. Murphy’s data consists of a “sample of a sample.” 20

information, information about third-party vendor outcome, and information about the decisions that were made by Kaplan, so it was really a three-part test for who would be included in our analysis. Q: And so your sample wasn’t meant to be a random sample, correct? A: Our sample was meant to include every one for whom we had the three pieces of information I just recited.... (Doc. 83-5 at p. 207) It appears that plaintiff argues that since Dr. Murphy consistently applied the same “criteria” in order to obtain his sample, it is statistically sound. But, there is no indication that the application of these criteria resulted in a fair cross section of the applicant pool. The application of “criteria” in and of itself does not mean that the analysis is admissible. For example, Dr. Murphy may have had race information only from certain localities which might skew the sample. In addition, defendants’ expert points out that the results from the sample are not in fact representative of the applicant pool. As set forth above, the failure rate of the entire applicant pool amounted to 13.3%, yet, Dr. Murphy’s subset of data has a significantly higher failure rate of 23.8%. In addition, the disparity of applicant representation by state could arguably have an impact. Plaintiff, however, did not respond to this argument at all. Thus, while the Court acknowledges that a statistical analysis need not be “perfect” in order to be admissible, the evidence presented by defendants’ expert shows that the sample was not randomly taken and is not representative of the applicant pool as a whole. Because the EEOC fails to present any evidence indicating that the analysis is nonetheless admissible, the Court finds defendants’ argument to be well-taken. The Court will exclude Dr. Murphy’s expert report and testimony on this additional ground as well.
21

The Court rejects, however, defendants’ argument that Dr. Murphy’s failure to include additional applicants for which he possessed data renders the analysis unreliable. Defendants do not point the Court to any evidence or case law dictating that an expert must rely on all data in his or her possession. Providing the sample size is sufficient, there appears to be no requirement that all data must be analyzed. Accordingly, the argument is rejected.
c. Non-discriminatory variances and timeliness Having concluded that plaintiffs’ expert evidence is inadmissible as set forth above, the Court need not reach whether it should also be excluded because Dr. Murphy fails to account for “non-discriminatory variances.” Nor will the Court address defendants’ argument that the additional conclusions in the reports are untimely, except as previously set forth. Because plaintiff fails to present admissible evidence showing that the use of credit reports “caused the exclusion of applicants...because of their membership in a protected group,” plaintiff cannot set forth a prima facie case of disparate impact discrimination. As such, summary judgment in favor of defendants is warranted and the Court will not reach defendants’ alternative arguments, i.e., job relatedness, business necessity, and estoppel. Motions filed by plaintiff Plaintiff moves to exclude defendants’ expert witness and further moves for partial summary judgment on defendants’ “affirmative defense.” In these motions, plaintiff argues that there is no evidence supporting defendants’ arguments regarding job relatedness, business necessity, and estoppel. The Court, however, will not reach these issues in light of the fact that plaintiff fails to state a prima facie case. Accordingly, these motions are MOOT.
22

CONCLUSION For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 79) and the Motion to Exclude the Reports and Testimony of Dr. Kevin R. Murphy (Doc. 82) are GRANTED. The EEOC’s Motion for Partial Summary Judgment (Doc. 80) and Motion to Exclude Defendant’s Expert Michael G. Aamodt (Doc. 90) are DENIED as MOOT. IT IS SO ORDERED.

Dated: 1/28/13

/s/ Patricia A. Gaughan PATRICIA A. GAUGHAN United States District Judge

23

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Equal Opportunity Employment

)

Commission,

)

)

Plaintiff,

)

)

Vs.

)

)

Kaplan Higher Education Corp., et al., )

)

Defendants.

)

CASE NO. 1:10 CV 2882 JUDGE PATRICIA A. GAUGHAN Memorandum of Opinion and Order

INTRODUCTION This matter is before the Court upon plaintiff EEOC’s Revised Motion for Reconsideration and Incorporated Memorandum of Law (Doc. 120). This is a disparate impact case. For the reasons that follow, the motion is DENIED. FACTS Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), brings this lawsuit against defendants, Kaplan Higher Education Corporation (“KHEC”), Kaplan, Inc. (“KI”), and Iowa College Acquisition Corporation d/b/a/ Kaplan University (“KU”), alleging that
1

defendants’ use of credit reports in the hiring process has an unlawful disparate impact on Black applicants.
Defendants moved to partially dismiss plaintiff’s complaint on the grounds that the 300day statute of limitations applies to limit plaintiff’s claim. The Court granted the motion. Defendants then moved to exclude the reports and testimony of plaintiff’s expert, Dr. Kevin R. Murphy. This Court granted the motion. The Court then granted defendants’ motion for summary judgment on the ground that plaintiff failed to present sufficient evidence of disparate impact discrimination to establish a prima facie case.
Plaintiff now moves for reconsideration. Plaintiff argues that the Court erred in excluding Dr. Murphy’s opinion. Assuming arguendo that the Court properly excluded Dr. Murphy’s opinion, plaintiff argues that the Court nonetheless erred in granting summary judgment. Plaintiff also asks the Court to reconsider its decision with regard to the statute of limitations. Defendants oppose all of plaintiff’s arguments. Each will be addressed in turn.
STANDARD OF REVIEW The Federal Rules of Civil Procedure do not provide for motions for reconsideration. “Instead, such motions, if served within [twenty-eight]1 days of entry of judgment, are considered motions to alter or amend judgments pursuant to [ ] Rule 59(e).” Stubblefield v. Skelton, unreported, 117 F.3d 1421 (6th Cir. July 10, 1997), citing Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982). “Generally, there are three major situations which justify a court reconsidering one of its orders: 1) to accommodate an intervening change in

1

This rule was amended to increase the filing period from ten to

twenty-eight days.

2

controlling law; 2) to account for new evidence not available at trial; or 3) to correct a clear error
of law or to prevent a manifest injustice.” Hancor, Inc. v. Inter American Builders Agencies,
1998 WL 239283 (N.D. Ohio March 19, 1998), citing In re Continental Holdings, Inc., 170 B.R.
919, 939 (Bankr. N.D. Ohio 1994). The twenty-eight day filing period, however, is
jurisdictional in nature, and any motion to reconsider filed outside this time frame is of no effect.
Feathers v. Chevron, U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998). A motion to reconsider
filed more than twenty-eight days after the entry of judgment is appropriately treated as a motion
for relief from judgment under Rule 60(b).
The standard for granting a Rule 60 motion is significantly higher than the standard applicable to a Rule 59 motion, however. A timely Rule 59 motion may be granted ‘for any of the reasons which rehearings have heretofore been granted in suits in equity in the courts of the United States.’ A Rule 60(b) motion, by contrast, may be granted only for certain specified reasons....
Id.
Rule 60(b) provides that relief may be granted only for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud, misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, release, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Here, defendants argue that plaintiff’s motion should be treated as a motion for relief
3

from judgment because it was untimely filed. In response, plaintiff argues that the Court entered judgment on January 28, 2013 and “twenty-eight days later, on February 26, 2013, [plaintiff] filed its motion for reconsideration pursuant to Rule 59(e).” Of course, even a simple calculation demonstrates that plaintiff’s motion was not filed within 28 days of the Court’s entry of judgment. Rather, the time period between January 28, 2013 and February 26, 2013 is twentynine days. Even after defendants pointed out the untimeliness of plaintiff’s motion, plaintiff continued to erroneously assert to this Court that the motion was timely filed. Although miscalculations of time may occur, one would assume that before persisting in its representation of timeliness, plaintiff would have double-checked its efforts. Accordingly, because the motion was not filed within 28 days of the Court’s entry of judgment, the Court will apply the stricter standards contained in Rule 60(b) to plaintiff’s motion.
ANALYSIS 1. Exclusion of plaintiff’s expert Plaintiff argues that the Court erred in excluding plaintiff’s expert. According to plaintiff, the Court should have considered an affidavit prepared by Dr. Murphy and filed by plaintiff in opposition to defendants’ motion to exclude. Plaintiff also argues that the Court did not resolve whether the UGESP applies and, if so, what consequence flows from defendants’ failure to retain data. Plaintiff claims that the Court applied Daubert “too rigidly” and that defendants’ challenges to the report were merely “hypothetical.” Each argument will be separately addressed.
A. Dr. Murphy’s affidavit According to plaintiff, the Court erred by refusing to consider Dr. Murphy’s opinion that,
4

even if data obtained through the “race raters” is not considered, Dr. Murphy’s “reanalysis” shows that credit checks nonetheless have a disparate impact on African-Americans. This opinion was provided in an affidavit submitted in connection with plaintiff’s brief in opposition to defendants’ motion to exclude. Plaintiff argues that the Court erred in concluding that the evidence was untimely submitted. According to plaintiff, the Court considered other aspects of this affidavit and should have considered it in its entirety. In response, defendants point out that, although the Court found the new opinion to be untimely submitted, the Court nonetheless considered the opinion and properly determined that the opinion was not based on a sample of data that was shown to be random or representative of the whole.
Upon review, the Court finds that plaintiff wholly fails to present any grounds for reconsideration. As an initial matter, the Court notes that it considered the aspects of Dr. Murphy’s affidavit that do not amount to new opinions and/or new analysis. For example, plaintiff complains that the Court considered Paragraph 11. However, a cursory review of Paragraph 11 shows that the statements contained in that paragraph are explanations for previously disclosed expert opinions. In fact, the paragraph begins, “As discussed in my deposition....” On the other hand, Paragraph 18 is a new expert opinion, which was admittedly not previously disclosed. That paragraph reads as follows:
In Kaplan’s November 30, 2012 motion to exclude...Kaplan challenges generally the reliability of race-identifying individuals..... In response to Kaplan’s...motion, I removed from my data set the individuals who were race identified by DMV photo alone. Then I re-analyzed my data set. As explained in Exhibit D to this Declaration, the conclusion was the same. This reanalysis shows that Kaplan’s credit checks have a significant disparate impact on African Americans. (Emphasis added). Plaintiff disingenuously attempts to argue that this is not a “new analysis, but rather a
5

reanalysis.” On its face, Dr. Murphy’s opinion was created in response to a motion filed by defendants and constitutes a different analysis, which was not timely disclosed to defendants. Plaintiff argues that Sixth Circuit law prevents this Court from striking portions of an affidavit that contradict deposition testimony. This, however, is not what the Court did. Regardless, although plaintiff devotes a significant amount of briefing to this issue, plaintiff wholly fails to address the fact that the Court did go on to consider this opinion and reject it. Plaintiff simply offers no grounds for reconsideration on this point.
B. The UGESP Plaintiff next argues that the Court erred in failing to apply the EEOC’s Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607. According to plaintiff, these guidelines require that defendant maintain data on applicants. As such, because defendant did not maintain this information, the Court should have “resolve[d] whether UGESP applies and, if so, what consequence flows from [defendants’] failure to comply with its duty to retain such data.” In response, defendants argue that the UGESP are not binding on employers and moreover, the language in relevant sections of the Code of Federal Regulations is permissive. In its brief in opposition to defendants’ motion to strike, plaintiff simply pointed out that defendants did not maintain data and that there was no evidence in the record indicating as such. Plaintiff asked for no relief and did not argue the legal ramifications of any alleged failure. Now, in a motion for reconsideration, plaintiff asks for (1) an inference of spoliation; (2) an inference of adverse impact; (3) a finding of estoppel and/or unclean hands. Because defendants never sought this relief or made any of these arguments in the multiple motions filed in this matter, the Court will not consider these arguments now.
6

C. The Court’s application of Daubert Plaintiff argues that the Court applied Daubert “too rigidly.” It appears that plaintiff now argues that its use of “race raters” is not scientific at all. Rather, a layperson could adequately determine whether a person fell into one of five categories created by plaintiff’s expert. As a result, the “rate of error” factor should not apply to this case. Even so, plaintiff argues, it proved that the photo assessments had a rate of error of less than 5%. Plaintiff also argues that it need not have established that “race rating” is a peer reviewed technique. Nonetheless, plaintiff now attempts to establish, through a “supplemental declaration,” that the technique has been subjected to peer review. In response, defendants argue that by conceding that Dr. Murphy’s technique was “not scientific,” plaintiff admits that the opinion fails to satisfy Daubert. Defendants further argue that the Court accurately analyzed Dr. Murphy’s testimony as it relates to the rate of error and the fact that the sample size used to test the data was not random or representative. Defendants further argue that the Court properly applied the Daubert factors, and that “peer review” is only one of the factors analyzed by the Court. Upon review, the Court finds that plaintiff fails to establish that it is entitled to reconsideration. All of the arguments raised by plaintiff are re-arguments of issues previously addressed and resolved by the Court. Moreover, the Court will not consider the newly filed affidavit submitted by Dr. Murphy. Plaintiff offers no explanation or reason as to why the information was not submitted in connection with the original briefing. Nor does plaintiff establish that the information constitutes new evidence that could not have been discovered in sufficient time to move under Rule 59(e).
D. Hypothetical challenges
7

The Court has reviewed the parties’ arguments regarding the allegedly “hypothetical” nature of defendants’ challenges to plaintiff’s statistics. Plaintiff points to no error warranting reconsideration.
2. Summary judgment A. “Other” statistical evidence Plaintiff argues that the Court erred in determining that it failed to present evidence sufficient to establish a prima facie case. According to plaintiff, even if the Court does not consider the racial statistics offered by Dr. Murphy, sufficient evidence of “national statistics” existed in the record such that summary judgment should not have been granted. In response, defendants argue that plaintiff never made this argument in opposition to defendants’ motion for summary judgment. Nor did plaintiff point to any record evidence supporting this contention. Upon review, the Court rejects plaintiff’s argument. Not only did plaintiff not make this argument in the initial briefing, even in the context of its motion to reconsider plaintiff fails to specifically cite or discuss any record evidence supporting its argument. This Court has no obligation to search the record in support of evidence in plaintiff’s favor. Accordingly, reconsideration is not warranted. B. Non-expert testimony of race Plaintiff argues that race identification does not require expert testimony. According to plaintiff, courts have routinely held that a layperson is capable of accurately identifying race. Plaintiff argues that the Court therefore erred when it “concluded that race must be distilled into scientific categories, marked by clear-cut categories....” In response, defendants point out that the Court never concluded as such. Rather, plaintiff’s expert “presumed that such ‘clear-cut
8

categories’ [exist] when he asked his race raters to sort photographs into five racial buckets.” Defendants further argue that plaintiff fails to identify any basis warranting reconsideration. Moreover, according to defendants, the cases relied on by plaintiff do not require the accuracy of the race determination. Rather, they involve only the perception of race. Therefore, errors in assessment are not relevant to the outcome of the cases cited by plaintiff.
Upon review, the Court finds that plaintiff fails to present any grounds justifying reconsideration of this Court’s previous Order. In this case, plaintiff’s expert asked the “raceraters” to identify a person’s race from among five race categories, including one labeled “other.” Plaintiff offers no evidence that a layperson can determine whether for example, a mediumskinned individual identifies with the Caucasian race or whether the individual is bi-racial and, thus would belong in the “other” category. As plaintiff points out, this Court is the trier of fact in this case.2 This Court or any trier of fact would not be able to place each photograph into one of five “race categories” without committing some errors. Without knowing the percentage of errors the Court would surely commit, the evidence would not be admissible. Accordingly, plaintiff’s argument is not well-taken.
3. Statute of limitations Plaintiff argues that an intervening change in the law requires that the Court reconsider its ruling on the statute of limitations. Specifically, plaintiff argues that the Sixth Circuit decided Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012), which makes clear that a charge need not

2

Plaintiff points out that the Court mentioned in passing that a

“jury” would be the trier of fact. To the extent the Court may have

erred in so stating, the issue is wholly irrelevant to plaintiff’s

argument.

9

be filed by the EEOC in order to pursue a claim under Section 707. Therefore, the 300-day limitation period applicable to charges cannot apply to the EEOC’s claim since no charge was required in the first instance. In response, defendants argue that a change in decisional law is ordinarily insufficient to warrant “extraordinary relief” under Rule 60(b). Regardless, defendants argue that Serrano did not affect the statute of limitations issue. Rather, it simply held that the EEOC may bring a pattern and practice claim under Section 706.
Upon review, the Court finds that reconsideration is not warranted in that the Court granted summary judgment to defendants. Even if the Court were to reconsider its decision regarding the statute of limitations, the Court finds no basis on which to reconsider its summary judgment ruling. Therefore, any reconsideration of the Court’s ruling on the motion to dismiss would be moot because no relief could be afforded.
CONCLUSION For the foregoing reasons, the EEOC’s Revised Motion for Reconsideration and Incorporated Memorandum of Law is DENIED. IT IS SO ORDERED.

Dated: 5/6/13

/s/ Patricia A. Gaughan PATRICIA A. GAUGHAN United States District Judge

10

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Equal Employment Opportunity

)

Commission,

)

)

Plaintiff,

)

)

vs.

)

)

Kaplan Higher Education Corporation, )

)

Defendant.

)

CASE NO. No. 1:10 CV 2882 JUDGE PATRICIA A. GAUGHAN Memorandum of Opinion and Order

INTRODUCTION This matter is before the Court upon defendant’s Partial Motion to Dismiss the Complaint (Doc. 12). This is a discrimination case under Title VII of the Civil Rights Act of 1964, as amended. For the following reasons, defendant’s motion is GRANTED. FACTS The following facts are taken from the complaint and the underlying Equal Employment Opportunity Commission charge of discrimination.1 Plaintiff, the United States Equal

1

Defendant attached the EEOC charge to its motion to dismiss. Such a

document is properly considered by the Court in resolving the motion. See Amini v. Oberlin

1

Employment Opportunity Commission (hereinafter “EEOC” or “plaintiff”), brings this case against defendant, Kaplan Higher Education Corporation, alleging that defendant has engaged in a nationwide pattern or practice of race discrimination against black job applicants and current employees. Plaintiff brings this case under §§ 706(f)(1) and (3) and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and 2000e-6.
Shandria S. Nichols filed a charge of discrimination with the EEOC on February 26, 2009, alleging that defendant hired her on February 5, 2009, and then discharged her on February 15, 2009, because of the results of a credit history check. Nichols stated in the charge that she believed she had been discriminated against because she was black and that she also believed black individuals as a class had been discriminated against through the use of credit histories.
Plaintiff filed the complaint on December 21, 2010, alleging that since at least January 2008 defendant has engaged in unlawful employment practices at its facilities in the United States. Specifically, defendant uses credit history information as a selection criterion in hiring and discharge. Plaintiff further alleges that the use of such information has a significant disparate impact on black job applicants and current employees, that the information is not jobrelated or necessary for defendant’s business, and that there are other less discriminatory selection criteria that could be used. Plaintiff alleges that the effect of this practice has been to deny a class of black job applicants and employees equal employment opportunities, and that the practice is part of a continuing course of race discrimination against black applicants and employees.
College, 259 F.3d 493, 502 (6th Cir. 2001). 2

The complaint contains a single claim of unlawful employment practices. Defendant now moves to partially dismiss the complaint under Fed. R. Civ. P. 12(b)(6), arguing that challenges to employment decisions made more than 300 days prior to the filing of the charge, or before May 2, 2008, are time-barred. Plaintiff opposes the motion.
STANDARD OF REVIEW “Dismissal is appropriate when a plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). We assume the factual allegations in the complaint are true and construe the complaint in the light most favorable to the plaintiff.” Comtide Holdings, LLC v. Booth Creek Management Corp., No. 08-3767, 2009 WL 1884445, at *1 (6th Cir. July 2, 2009) (citing Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)). In construing the complaint in the light most favorable to the non-moving party, “the court does not accept the bare assertion of legal conclusions as enough, nor does it accept as true unwarranted factual inferences.” Gritton v. Disponett, No. 08-5013, 2009 WL 1505256, at *3 (6th Cir. May 27, 2009) (citing In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997)). “To survive a Rule 12(b)(6) motion, the nonmoving party must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” ABS Industries, Inc. ex rel. ABS Litigation Trust v. Fifth Third Bank, Nos. 08-3822 and 08-3823, 2009 WL 1811915, at *3 (6th Cir. June 25, 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). ANALYSIS Defendant argues that the time limitation for filing a charge in § 706(e)(1) of Title VII
3

applies to limit the period for which plaintiff can obtain recovery on behalf of any individual in a
proceeding under § 707. Plaintiff argues that the time limitation does not apply to suits brought
by the EEOC under § 707. Plaintiff alternatively argues that the defendant’s alleged violation is
a continuing violation and that the time limitation does not apply under the continuing violations
doctrine. No court of appeals has addressed this issue.2 The Court addresses each of plaintiff’s
arguments separately below.
Under § 706, the EEOC may sue on behalf of one or more persons aggrieved by an
unlawful employment practice. 42 U.S.C. § 2000e-5(f)(1). Under § 707, the EEOC may
“investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on
behalf of a person claiming to be aggrieved or by a member of the Commission.” Id. at § 2000e-
6(e). The EEOC’s ability to act under § 707, however, is subject to the procedures of § 706, as
set forth in § 707(e):
(e) Investigation and action by Commission pursuant to filing of charge of discrimination; procedure. Subsequent to the date of enactment of the Equal Employment Opportunity Act of 1972, the Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission. All such actions shall be conducted in accordance with the procedures set forth in section 706 of this Act.
Id. Section 706 contains the following time limitation on filing charges:
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall

2

District courts addressing the issue are split. See EEOC v. Freeman, No. RWT

09 cv 2573, 2010 WL 1728847, at *2 (D. Md. April 27, 2010) (comparing district court

cases).

4

be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.
Id. at 2000e-5(e)(1).
A. Application of § 706(e)(1) to Suits Under § 707
Defendant argues that the EEOC is barred from seeking relief for any employment
decisions that occurred more than 300 days prior to the filing of the charge, or before May 2,
2008.3 Defendant argues that this result is compelled by the plain language of §§ 706 and 707,
as the time limitation is one of the “procedures” set forth under § 706 that is made applicable to
§ 707 by § 707(e). Defendant further argues that this plain-language reading of the statute is in
keeping with Congress’s intent to encourage prompt resolution of employment discrimination
allegations, even when the plaintiff is the EEOC and not a private party. In support, defendant
points out that employers would not be protected by the charge-filing deadline if the EEOC was
not restricted by the time limitation in its pattern-or-practice lawsuits.
Plaintiff argues that its right to remedy statutory violations does not depend on the same
limitations that apply to individual plaintiffs under § 706. It argues that it does not proceed as a

3

Nichols filed her charge with the Ohio Civil Rights Commission, thus the 180-

day limitation would not apply.

5

representative for the person who filed a charge or for any other persons for whom it seeks relief. It proceeds primarily in the public interest, and applying the time limitation of § 706 to a patternor-practice suit under § 707 is contrary to Congress’s intent for the EEOC to have primary responsibility to root out systemic discrimination in the workplace. Plaintiff argues that under § 707, there is no time period limiting the scope of remedies that it can use to redress a pattern or practice of discrimination, and that courts have held that actions brought by the EEOC under § 707 are not subject to the time limitation of § 706(e).
Upon review, the Court finds that the time limitation in § 706(e)(1) is applicable in this case. The plain language of § 707(e) authorizes the EEOC to investigate and act on a charge of a pattern or practice of discrimination, and mandates that such actions be taken in accordance with the procedures of § 706. Section 706 requires a charge to be filed, under the facts of this case, within 300 days after the allegedly unlawful employment practice occurred. Thus, the EEOC may only act where a charge of discrimination has been filed, and such charges must be filed within 300 days of the unlawful employment practice. Plainly, if a charge is not filed within that time limitation, the EEOC may not act upon it. No exception exists in the statute allowing the EEOC to recover damages for individuals whose claims are otherwise time-barred.
Although plaintiff argues that courts have held that the time limitation of § 706(e)(1) does not apply to pattern or practice suits under § 707, the Court respectfully disagrees with the reasoning of those decisions. Plaintiff relies primarily on EEOC v. LA Weight Loss, 509 F. Supp. 2d 527 (D. Md. 2007) and EEOC v. Sterling Jewelers, Inc., No. 08-CV-706, 2010 WL 86376 (W.D.N.Y. Jan. 6, 2010).
In LA Weight Loss, the court acknowledged the language of the statute but held that the
6

language “is not so plain as to warrant the application of § 2000e-5(e)’s limitations period for individual charges to pattern-or-practice claims brought by the EEOC under § 2000e-6.” 509 F. Supp. 2d at 535. The court held that it would not apply the time limitation because applying the limitation would be inconsistent with the nature of a pattern or practice violation, and because it would interfere with the EEOC’s ability to use broad-scale action to investigate charges of systemic discrimination. This Court, however, finds the language of §§ 706(e)(1) and 707(e) to be plain.
In Sterling Jewelers, the court found that the time limitation did not apply because the EEOC was not restricted to bringing a suit based only upon the claims in the charge of discrimination.4 The court relied heavily on Occidental Life Insurance Co. of California v. EEOC, 432 U.S. 355 (1977), for the principle that “the sole limitation on the EEOC’s ability to proceed with an enforcement action is that a charge be filed with the EEOC within 300 days of a violation” and if that occurs, then the “EEOC’s complaint need not be limited in scope to violations occurring within that period.” Sterling Jewelers, 2010 WL 86376 at *5 (emphasis in original). The issue in Occidental, however, was whether the EEOC was time-limited in its

4

In so holding, the court in Sterling relied upon General Telephone Co. of the

Northwest, Inc. v. EEOC, 446 U.S. 318, 331 (1980), which addressed whether the EEOC was

required to meet the class-action requirements of Fed. R. Civ. P. 23. In holding that Rule 23

did not apply to actions brought by the EEOC in its own name to enforce federal law, the

Supreme Court stated with respect to Rule 23’s typicality requirement: “The typicality

requirement is said to limit the class claims to those fairly encompassed by the named

plaintiff's claims. . . . Yet the Courts of Appeals have held that EEOC enforcement actions

are not limited to the claims presented by the charging parties. Any violations that the EEOC

ascertains in the course of a reasonable investigation of the charging party's complaint are

actionable.” Id. (citing EEOC v. General Electric Co., 532 F.2d 359, 366 (CA4 1976); EEOC

v. McLean Trucking Co., 525 F.2d 1007, 1010 (CA6 1975)). The Supreme Court did not

address any time limitations on such claims.

7

ability to bring suit in federal court pursuant to § 706(f)(1), not the temporal scope of that
lawsuit. In holding that the EEOC was not subject to the time limitation to bring suit, the
Supreme Court stated in this regard:
The 1972 Act expressly imposes only one temporal restriction on the EEOC’s authority to embark upon the final stage of enforcement - the bringing of a civil suit in a federal district court: Under § 706(f)(1), the EEOC may not invoke the judicial power to compel compliance with Title VII until at least 30 days after a charge has been filed. But neither § 706(f) nor any other section of the Act explicitly requires the EEOC to conclude its conciliation efforts and bring an enforcement suit within any maximum period of time.
Occidental, 432 U.S. at 360 (emphasis added). The time limitation of § 706(e)(1) is mentioned
only in a footnote, and § 707 is not considered at all. Id. at 360 n.8. Accordingly, the Court does
not find Sterling’s reasoning persuasive.
Additionally, the Court finds that the EEOC’s ability to root out systemic discrimination
in the workplace is not hampered by the application of § 706(e)(1). The time limitation will
primarily prevent the EEOC from recovering monetary damages on behalf of individuals with
stale claims. As the Court finds the plain language of the statute controlling in this case, the
Court declines to address plaintiff’s arguments relating to legislative history and congressional
intent.
B. Application of the Continuing Violations Doctrine to Plaintiff’s Claim
The “continuing violations” doctrine is an exception to the time limitation of § 706(e)(1).
It applies to claims, such as hostile work environment claims, that involve repeated conduct
occurring “over a series of days or perhaps years, and in direct contrast to discrete acts, a single
act of harassment may not be actionable on its own.” National R.R. Passenger Corp. v. Morgan,
8

536 U.S. 101, 115 (2002).5 These claims are “based on the cumulative affect [sic] of individual
acts.” Id. The continuing violations doctrine allows a court, when faced with such an actionable
claim, to “review all such conduct, including those acts that occur outside the filing period” for
the purpose of determining liability. Id. at 116. The Supreme Court held that “[a] hostile work
environment claim is comprised of a series of separate acts that collectively constitute one
unlawful employment practice.” Id. at 117. For this type of unlawful employment practice, the
Supreme Court held:
It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
Id.
The Supreme Court in Morgan also defined discrete acts: “A discrete retaliatory or
discriminatory act ‘occurred’ on the day that it ‘happened.’ A party therefore, must file a charge
within either 180 or 300 days of the date of the act or lose the ability to recover for it.” Id. at
111. The Morgan Court gave examples of easily identifiable discrete acts: “termination, failure
to promote, denial of transfer, or refusal to hire.” Id. at 114. Unlike a continuing violation
claim, “discrete acts are not actionable if time barred, even when they are related to acts alleged

5

Morgan was not a pattern or practice claim and declined to consider the timely

filing question of pattern or practice claims brought by private litigants. The definitions it

sets forth for discrete claims and its discussion of the continuing violations doctrine, however,

are valuable.

9

in timely filed charges.” Id. at 113.6 Plaintiff argues that the EEOC has the power to bring a pattern or practice suit under
§ 706, and that where a pattern or practice of discrimination is proven under that section, all unlawful acts that are part of that pattern or practice– both preceding and following the 300-day charge filing limitation– are actionable and subject to complete remedies. Plaintiff’s position is that defendant’s practice of using credit history as a selection criterion in its hiring and firing decisions is a continuing violation because the event which triggers liability is the statistically significant impact of defendant’s policy manifested over time, not any discrete failure to hire or discharge. Plaintiff argues that defendant’s allegedly discriminatory policy is more analogous to a hostile work environment claim than to a series of discrete acts, because the pattern or practice of discrimination produced by the policy would not become apparent to most untrained observers until the employer has implemented it with sufficient frequency to permit assessment of its classwide adverse impact.
Defendant argues that decisions to refuse to hire and to terminate employment are discrete acts and are not subject to the continuing violations exception. Defendant also argues that plaintiff cannot point to any authority for its argument that disparate impact claims are similar to hostile working environment claims.
Upon review, the Court finds that the continuing violations doctrine does not apply to plaintiff’s claim. Refusing to hire and terminating employment are discrete decisions. See Morgan, 536 U.S. at 114; Ferguson v. Snow, 185 Fed. Appx. 456, at *6 (6th Cir. 2006) (refusing

6

Morgan noted that the time limitation does not bar an employee from using the

prior acts as background evidence in support of a timely claim. Id. at 113.

10

to consider a series of instances of non-promotion as a hostile work environment instead of as discrete acts). Even in a pattern-or-practice case such as this, the discrete decisions to refuse to hire and to terminate employment cannot be linked together to create a continuing violation. Each refusal to hire or termination occurred on a readily-identifiable date certain, and is subject to the time limitation of § 706(e)(1). The Court notes that the charging party in this case, Shandria S. Nichols, stated in her charge that she believed she had been discriminated against because of her race through the use of her credit history. In so doing, she identified an instance of alleged race discrimination and the date that it occurred. Thus, this case is not like a hostile work environment claim, where instances of individual conduct may not be actionable on their own but instead must be aggregated over days or even years to constitute an unlawful employment practice. Accordingly, the continuing violations exception to the time limitation under § 706(e)(1) does not apply to plaintiff’s claim.
CONCLUSION For the foregoing reasons, defendant’s Partial Motion to Dismiss the Complaint is GRANTED.
IT IS SO ORDERED.

Dated: 5/9/11

/s/ Patricia A. Gaughan PATRICIA A. GAUGHAN United States District Judge

11

 
 Case: 13-3408 Document: 75-1 Filed: 04/09/2014 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: April 09, 2014

Tel. (513) 564-7000 www.ca6.uscourts.gov

Ms. Anastasia Boden Pacific Legal Foundation 930 G Street Sacramento, CA 95814
Ms. Kate Northrup U.S. Equal Employment Opportunity Commission - Baltimore 10 S. Howard Street, 3rd Floor Baltimore, MD 21201

Ms. Elizabeth Ellen Theran U.S. Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E. Washington, DC 20507
Ms. Pamela Q. Devata Mr. Matthew James Gagnon Mr. Gerald Leonard Maatman Jr. Ms. Jennifer A. Riley Mr. David J. Rowland Seyfarth Shaw 131 S. Dearborn Street, Suite 2400 Chicago, IL 60603

Re: Case No. 13-3408, EEOC v. Kaplan Higher Education Corp., et al Originating Case No. : 1:10-cv-02882
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,

Deborah S. Hunt, Clerk

cc: Geri M. Smith Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case: 13-3408 Document: 75-2 Filed: 04/09/2014 Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0071p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

┐

Plaintiff-Appellant,

│ │

v. KAPLAN HIGHER

EDUCATION

│
││>
CORPORATION, │

KAPLAN, INC., and IOWA COLLEGE ACQUISITION │

CORPORATION, d/b/a Kaplan University,

│

Defendants-Appellees. │ ┘

No. 13-3408

Appeal from the United States District Court for the Northern District of Ohio at Cleveland No. 1:10-cv-02882—Patricia A. Gaughan, District Judge.

Argued: March 20, 2014

Decided and Filed: April 9, 2014

Before: KEITH, COOK, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Kate Northrup, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Gerald L. Maatman, Jr., SEYFARTH SHAW LLP, Chicago, Illinois, for Appellees. ON BRIEF: Kate Northrup, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Gerald L. Maatman, Jr., David J. Rowland, Pamela Q. Devata, Jennifer A. Riley, Matthew J. Gagnon, SEYFARTH SHAW LLP, Chicago, Illinois, for Appellees. Anastasia P. Boden, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amicus Curiae.

1

Case: 13-3408 Document: 75-2 Filed: 04/09/2014 Page: 2

No. 13-3408

EEOC v. Kaplan, et al.

Page 2

_________________
OPINION _________________
KETHLEDGE, Circuit Judge. In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses. The EEOC’s personnel handbook recites that “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.” Because of that concern, the EEOC runs credit checks on applicants for 84 of the agency’s 97 positions. The defendants (collectively, “Kaplan”) have the same concern; and thus Kaplan runs credit checks on applicants for positions that provide access to students’ financial-loan information, among other positions. For that practice, the EEOC sued Kaplan.
Specifically, the EEOC alleges that Kaplan’s use of credit checks causes it to screen out more African-American applicants than white applicants, creating a disparate impact in violation of Title VII of the federal Civil Rights Act. See 42 U.S.C. § 2000e-2(a)(1), (a)(2), (k). Proof of disparate impact is usually statistical proof in the form of expert testimony; and here the EEOC relied solely on statistical data compiled by Kevin Murphy, who holds a doctorate in industrial and organizational psychology. For two reasons, however, the district court excluded Murphy’s testimony on grounds that it was unreliable. First, the EEOC presented “no evidence” that Murphy’s methodology satisfied any of the factors that courts typically consider in determining reliability under Federal Rule of Evidence 702; and second, as Murphy himself admitted, his sample was not representative of Kaplan’s applicant pool as a whole. The district court therefore granted summary judgment to Kaplan. The EEOC now argues that the district court “erred”—a telling, oft-repeated, and mistaken choice of word here—when it excluded Murphy’s testimony. We reject the EEOC’s arguments and affirm.
Kaplan offers undergraduate and graduate degrees to students across the country. Some of Kaplan’s students obtain financial aid through programs operated by the United States Department of Education; and consequently, some of Kaplan’s employees have access to those students’ financial information. The Department has regulations that circumscribe the manner in

Case: 13-3408 Document: 75-2 Filed: 04/09/2014 Page: 3

No. 13-3408

EEOC v. Kaplan, et al.

Page 3

which Kaplan can access and use students’ information. Violations of those regulations can bring severe penalties.

Kaplan’s concerns became reality about a decade ago, when it discovered that some of its financial-aid officers had stolen payments that belonged to students. Kaplan also learned that some of its executives had engaged in self-dealing, by hiring relatives as vendors. In response, Kaplan implemented a number of measures to prevent these abuses. One of those measures was to run credit checks on applicants for senior-executive positions, accounting and other positions with access to company financials or cash, and positions with access to student financial-aid information. The credit checks are performed by a third-party vendor, which reports, among other things, whether the applicant has ever filed for bankruptcy, is delinquent on child-support payments, has any garnishments on earnings, has outstanding civil judgments exceeding $2,000, or has a social-security number that does not match the number the credit bureau has on file. If an applicant’s credit history includes any of the enumerated items, the vendor flags the applicant’s file for “review.” At that point, Kaplan typically reviews the file and makes an ad hoc decision as to whether to move forward with the application. The credit-check process is racially blind: the vendor does not report the applicant’s race with her other information.

Kaplan has used several vendors for its credit checks, but Murphy focused upon applications screened by one vendor, General Information Services (“GIS”). Murphy obtained GIS data for 4,670 applicants. That data, as discussed above, did not include the applicant’s race, so the EEOC subpoenaed records from the departments of motor vehicles. Eleven states provided records that identified an applicant’s race. Thirty-six states and the District of Columbia provided color copies of drivers’ license photos for approximately 900 applicants.

The dispute in this case concerns the reliability, or lack thereof, of the process—which the EEOC calls “race rating”—by which Murphy purported to identify the race of each person in those drivers’ license photos. The process was crafted by Murphy himself, specifically for purposes of litigation—though the record contains no indication that Murphy has any particular expertise in constructing methodologies to identify race by visual means. In any event, Murphy assembled a team of five “race raters,” each of whom has experience in what the EEOC calls “multicultural, multiracial, treatment outcome research”—a term undefined by the EEOC here.

Case: 13-3408 Document: 75-2 Filed: 04/09/2014 Page: 4

No. 13-3408

EEOC v. Kaplan, et al.

Page 4

But that term assuredly does not refer to the raters’ experience with methodologies to identify race by visual means—since, undisputedly, they have none. Murphy directed each rater separately to review each applicant’s drivers’ license photograph and then classify the person’s race in one of five ways: “African-American,” “Asian,” “Hispanic,” “White,” or “Other.” If four of five raters agreed upon a particular applicant’s race, the applicant was so classified for purposes of Murphy’s statistics. For 11.7% of the photographs, the raters failed to reach that consensus. For some reason Murphy also provided the raters with each applicant’s name— which, the EEOC concedes, the raters were supposed to disregard when classifying an applicant’s race.

Murphy filed his expert report on May 1, 2012 and then a revised report on August 17, 2012, both per the district court’s scheduling order. The revised report included the putative race and credit-check results for a total of 1,090 applicants, of whom 803 had been racially classified per Murphy’s “rating” process. In that sample of 1,090 applicants (out of a total of 4,670 applicants for whom GIS provided data), the percentage of black applicants who were flagged for review, based upon their credit histories, was higher than the percentage of white applicants who were flagged. (That is essentially the basis upon which the EEOC claims disparate impact here.) But Murphy’s sample overrepresented “fails” generally: 23.8% of the applicants in his sample of 1,090 were rejected because of their credit history, whereas only 13.3% of the total GIS pool of 4,670 were.

Murphy then proceeded to file additional reports, contrary to the terms of the district court’s scheduling order. On September 5, 2012—in response to a critical analysis of his work by Kaplan’s expert—Murphy submitted a third report, which Kaplan moved to strike, but which the district court reluctantly permitted in an October 5 order, with the admonition that “[n]o further expert reports are allowed.” Yet Murphy filed another report on November 8, 2012, two weeks before summary-judgment briefing was due. In that report, Murphy provided what the EEOC describes as “anecdotal corroboration” of the reliability of his race-rating process. Murphy filed yet another report on December 21, 2012, this time in response to Kaplan’s motion specifically to exclude his testimony as unreliable under Rule 702.

Case: 13-3408 Document: 75-2 Filed: 04/09/2014 Page: 5

No. 13-3408

EEOC v. Kaplan, et al.

Page 5

The district court thereafter excluded Murphy’s testimony in a meticulously reasoned opinion. We review that exclusion deferentially, for an abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997).

Rule 702 provides that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if[,]” among other requirements, the testimony “is based on sufficient facts and data” and “is the product of reliable principles and methods[.]” Fed. R. Evid. 702(b), (c). As the proponent of expert testimony, the EEOC bears the burden of proving its admissibility. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001).

In determining whether an expert’s methodology is reliable, courts frequently consider the factors set forth by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). But the district court has “broad latitude” as to which factors to consider in a particular case. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999).

Here, the district court considered every one of the Daubert factors—and found that Murphy’s methodology flunked them all. Two factors we consider together. “Ordinarily, a key question to be answered” in determining whether a technique is reliable is “whether it can be (and has been) tested.” Daubert, 509 U.S. at 593. Similarly, “in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error.” Id. at 594. The district court found that the EEOC “wholly fail[ed]” to provide evidence in support of either of these factors. Op. at 13. In response, the EEOC argues that we can find that support in Murphy’s “anecdotal corroboration”—set forth in his November 8 report, submitted a month after the district court said there would be no more reports. We consider it now only because the district court did. Murphy says that, as to 47 applicants, he cross-checked his raters’ classifications with racial identifications provided by a DMV, finding 95.7% agreement between the two. Murphy also says that, for another 10 applicants, he cross-checked his raters’ classifications with racial information provided by PeopleSoft, a personnel-software program used internally by Kaplan. That cross-check yielded an 80% match—an unimpressive correlation in case where a few percentage points (in credit-check fail rates for blacks and whites) might make the difference between significant liability and none. But more to the point,

Case: 13-3408 Document: 75-2 Filed: 04/09/2014 Page: 6

No. 13-3408

EEOC v. Kaplan, et al.

Page 6

as Murphy himself candidly conceded, a mere 57 instances of anecdotal corroboration is not enough “to establish the reliability of my photo rating methodology.” The district court was well within its “broad latitude[,]” Kumho, 526 U.S. at 142, to find these factors unmet.

The EEOC’s case goes downhill from there. In determining reliability, “[a]nother pertinent consideration is whether the theory or technique has been subjected to peer review and publication.” Daubert, 509 U.S. at 593. Again the district court found no evidence in support of this factor, and undisputedly there is none. Before us, the EEOC simply argues that the district court should not have considered the factor. The argument is meritless: “submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected[,]” id.; and the district court had good reason to think that such scrutiny might have detected flaws here.

The district court also found that Murphy’s methodology lacked “standards controlling the technique’s operation.” Id. at 594. The EEOC responds that the relevant standard was Murphy’s requirement that four of five raters agree on an applicant’s race. But that response overlooks Murphy’s own concession that the raters themselves had no particular standard in classifying each applicant; instead, they just eyeballed the DMV photos. The district court was also troubled by an affirmative breakdown in Murphy’s controls: “the ‘race raters’ were provided the names of the applicants,” which—for a methodology purportedly based exclusively on visual identification of race—might “create an unintended bias on the part of the panel.” Op. at 16. The EEOC countered at oral argument that there is “no evidence” that the raters considered any of the applicants’ names in classifying them by race. But that argument merely illustrates a fallacy that pervades the agency’s entire argument on appeal, to wit: that it was Kaplan’s (or the district court’s) burden to show that Murphy’s testimony was inadmissible, rather than the EEOC’s burden to show that his testimony was admissible. The law says the contrary. See Nelson, 243 F.3d at 251; Fed. R. Evid. 702 Advisory Comm. Notes, 2000 Amendments (“the proponent has the burden of establishing that the pertinent admissibility requirements are met a by preponderance of the evidence”).

The district court also found that the EEOC “present[ed] no evidence” that Murphy’s race-rating methodology “is generally accepted in the scientific community.” Op. at 16; see

Case: 13-3408 Document: 75-2 Filed: 04/09/2014 Page: 7

No. 13-3408

EEOC v. Kaplan, et al.

Page 7

generally Daubert, 509 U.S. at 593. On this point the EEOC offers no response—perhaps because, as the district court observed, “the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate ‘only if an employee refuses to self identify.’” Op. at 16.

Finally, as an independent ground for excluding Murphy’s testimony, the district court found that “[t]here is no indication” that Murphy’s group of 1,090 applicants is in any “way ‘representative’ of the applicant pool as a whole.” Op. at 18. Instead there is a strong indication to the contrary: Murphy’s group had a fail rate of 23.8%, whereas the GIS applicant pool had a fail rate of only 13.3%. On this point, suffice it to say that an unrepresentative sample by definition might not be representative of the respective fail rates of black and white applicants in the larger pool—and thus is not a reliable means to demonstrate disparate impact.

We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

The district court’s judgment is affirmed.

Case: 13-3408 Document: 75-3 Filed: 04/09/2014 Page: 1

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 13-3408

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
v.

FILED
Apr 09, 2014
DEBORAH S. HUNT, Clerk

KAPLAN HIGHER EDUCATION CORPORATION, KAPLAN INC., and IOWA COLLEGE ACQUISITION CORPORATION d/b/a Kaplan Univeristy,
Defendants - Appellees.

Before: KEITH, COOK, and KETHLEDGE, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the judgment of the district court is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Cat03,Complex,McHargh,Termed
U.S. District Court Northern District of Ohio (Cleveland) CIVIL DOCKET FOR CASE #: 1:10−cv−02882−PAG

Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation Assigned to: Judge Patricia A. Gaughan Case in other court: 6th Circuit, 13−03408 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 12/21/2010 Date Terminated: 01/28/2013 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by John A. Henderson , Jr. U.S. Equal Employment Opportunity Commission − Baltimore Ste. 1432 George H. Fallon Federal Bldg. 31 Hopkins Plaza Baltimore, MD 21201 410−209−2246 Fax: 962−4270 Email: john.henderson@eeoc.gov ATTORNEY TO BE NOTICED

Kate Northrup U.S. Equal Employment Opportunity Commission − Baltimore Ste. 1432 George H. Fallon Federal Bldg. 31 Hopkins Plaza Baltimore, MD 21201 410−209−2722 Fax: 410−962−4270 Email: kate.northrup@eeoc.gov

Maria K. Boehringer U.S. Equal Employment Opportunity Commission − Baltimore Ste. 1432 George H. Fallon Federal Bldg. 31 Hopkins Plaza Baltimore, MD 21201 410−209−2722 Fax: 410−962−4270 Email: maria.boehringer@eeoc.gov (Inactive) ATTORNEY TO BE NOTICED

Melanie M. Peterson U.S. Equal Employment Opportunity Commission Ste. 1300 801 Market Street Philadelphia, PA 19107 215−440−2689 Fax: 215−440−2848 Email: melanie.peterson@eeoc.gov ATTORNEY TO BE NOTICED

Jeffrey A. Stern U.S. Equal Employment Opportunity Commission − Cleveland 3001 AJC Federal Bldg.

V. Defendant Kaplan Higher Education Corporation

1240 East Ninth Street Cleveland, OH 44199 216−522−7458 Fax: 216−522−7430 Email: Jeffrey.Stern@eeoc.gov ATTORNEY TO BE NOTICED
represented by Alexandre S. Drummond Seyfarth Shaw − Atlanta Ste. 2500 1075 Peachtree Street, NE Atlanta, GA 30309 404−881−5467 Fax: 404−892−7056 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B. Ross Seyfarth Shaw − New York 620 Eighth Avenue New York, NY 10018 212−218−5511 Fax: 917−344−1239 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela Q. Devata Seyfarth Shaw − Chicago Ste. 8000 233 South Wacker Drive Chicago, IL 60606 312−460−5882 Fax: 312−460−7000 Email: pdevata@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
B. Jason Rossiter INVALID ADDRESS − Zashin & Rich 4th Floor 950 Main Avenue Cleveland, OH 44113 216−696−4441 Fax: 216−696−1618 Email: bjr@zrlaw.com (Inactive) ATTORNEY TO BE NOTICED
Brandon L. Spurlock Seyfarth Shaw − Chicago Ste. 8000 233 South Wacker Drive Chicago, IL 60606 312−460−5965 Fax: 312−460−7965 ATTORNEY TO BE NOTICED
David J. Rowland Seyfarth Shaw − Chicago Ste. 8000 233 South Wacker Drive Chicago, IL 60606

Defendant Kaplan, Inc.

312−460−5965 Fax: 312−460−7965 Email: drowland@seyfarth.com ATTORNEY TO BE NOTICED
Gerald L. Maatman , Jr. Seyfarth Shaw − Chicago Ste. 8000 233 South Wacker Drive Chicago, IL 60606 312−460−5965 Fax: 312−460−7000 Email: gmaatman@seyfarth.com ATTORNEY TO BE NOTICED
Jennifer A. Riley Seyfarth Shaw − Chicago Ste. 8000 233 South Wacker Drive Chicago, IL 60606 312−460−5672 Fax: 312−460−7642 Email: jriley@seyfarth.com ATTORNEY TO BE NOTICED
Stephen S. Zashin Zashin & Rich − Cleveland 4th Floor 950 Main Avenue Cleveland, OH 44113 216−696−4441 Fax: 216−696−1618 Email: ssz@zrlaw.com ATTORNEY TO BE NOTICED
Steven J. Pearlman Seyfarth Shaw − Chicago Ste. 8000 233 South Wacker Drive Chicago, IL 60606 312−460−5965 Fax: 312−460−7965 ATTORNEY TO BE NOTICED
represented by Alexandre S. Drummond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela Q. Devata (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
B. Jason Rossiter (See above for address) ATTORNEY TO BE NOTICED

Defendant
Iowa College Acquisition Corporation doing business as Kaplan University

David J. Rowland (See above for address) ATTORNEY TO BE NOTICED
Gerald L. Maatman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Jennifer A. Riley (See above for address) ATTORNEY TO BE NOTICED
Stephen S. Zashin (See above for address) ATTORNEY TO BE NOTICED
represented by Pamela Q. Devata (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
B. Jason Rossiter (See above for address) ATTORNEY TO BE NOTICED
David J. Rowland (See above for address) ATTORNEY TO BE NOTICED
Gerald L. Maatman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Jennifer A. Riley (See above for address) ATTORNEY TO BE NOTICED
Stephen S. Zashin (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/21/2010
12/21/2010 12/21/2010 12/21/2010 12/21/2010
12/21/2010 01/04/2011

# Docket Text
1 Complaint against Kaplan Higher Education Corporation.. Filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet) (Stern, Jeffrey) (Entered: 12/21/2010)
Judge Patricia A. Gaughan assigned to case. (C,B) (Entered: 12/21/2010)
2 Attorney Appearance by John A. Henderson, Jr. filed by on behalf of Equal Employment Opportunity Commission. (Henderson, Jr., John) (Entered: 12/21/2010)
3 Attorney Appearance by Maria K. Boehringer filed by on behalf of Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 12/21/2010)
Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge McHargh. (C,B) (Entered: 12/21/2010)
4 Magistrate Consent Form issued. No summons provided, no summons issued. (C,B) (Entered: 12/21/2010)
5 Case Management Conference Scheduling Order with case management conference held on 2/9/2011 at 9:00 a.m. to be held telephonically by Hon. Patricia A.

01/24/2011 01/24/2011 02/04/2011
02/04/2011
02/04/2011
02/04/2011
02/07/2011 02/07/2011 02/07/2011 02/07/2011 02/07/2011 03/04/2011 03/04/2011 03/04/2011

Gaughan. Approved by Judge Patricia A. Gaughan on 1/04/11. (D,MB) (Entered: 01/04/2011)
6 Waiver of Service Returned Executed by Equal Employment Opportunity Commission. Kaplan Higher Education Corporation waiver sent on 1/4/2011, answer due 3/7/2011. filed on behalf of Equal Employment Opportunity Commission (Stern, Jeffrey) (Entered: 01/24/2011)
Order [non−document]: At Plaintiff's request, Case management conference set 2/9/11 is continued to 3/9/11 at 09:00 AM to allow time for the Defendant to file an answer. Case management conference will be conducted by telephone with the Court initiating the call. Judge Patricia A. Gaughan on 1/24/11. (LC,S) (Entered: 01/25/2011)
7 Motion for attorney Gerald L. Maatman, Jr. to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−4535800, filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Exhibit Affidavit & Certificate of Good Standing)(Zashin, Stephen) Modified exhibit text on 2/7/2011 (G,CA). (Entered: 02/04/2011)
8 Motion for attorney Steven J. Pearlman to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−4535857, filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Exhibit Affidavit & Certificate of Good Standing)(Zashin, Stephen) Modified exhibit text on 2/7/2011 (G,CA). (Entered: 02/04/2011)
9 Motion for attorney Jennifer A. Riley to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−4535872, filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Exhibit Affidavit & Certificate of Good Standing)(Zashin, Stephen) Modified exhibit text on 2/7/2011 (G,CA). (Entered: 02/04/2011)
10 Motion for attorney Brandon L. Spurlock to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−4535893, filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Exhibit Affidavit & Certificate of Good Standing)(Zashin, Stephen) Modified exhibit text on 2/7/2011 (G,CA). (Entered: 02/04/2011)
Order [non−document]: Case Management Conference set 3/09/11 at 9:00 a.m. has been change to 8:45 a.m. due to a scheduling conflict. Case Management Conference will be conducted by telephone with the Court initiating the call. Judge Patricia A. Gaughan on 2/7/11. (LC,S) (Entered: 02/07/2011)
Order [non−document]: Defendant's Motion for Attorney Gerald L. Maatman, Jr. to Appear Pro Hac Vice is Granted. Judge Patricia A. Gaughan on 2/4/11. (Related Doc # 7 ) (LC,S) (Entered: 02/07/2011)
Order [non−document]: Defendant's Motion for Attorney Steven J. Pearlman to Appear Pro Hac Vice is Granted. Judge Patricia A. Gaughan on 2/4/11. (Related Doc # 8 ) (LC,S) (Entered: 02/07/2011)
Order [non−document]: Defendant's Motion for Attorney Jennifer A. Riley to Appear Pro Hac Vice is Granted. Judge Patricia A. Gaughan on 2/4/11. (Related Doc # 9 ) (LC,S) (Entered: 02/07/2011)
Order [non−document]: Defendant's Motion for Attorney Brandon L. Spurlock to Appear Pro Hac Vice is Granted. Judge Patricia A. Gaughan on 2/4/11. (Related Doc # 10 ) (LC,S) (Entered: 02/07/2011)
11 Report of Parties' Planning Meeting , parties do not consent to this case being assigned to the magistrate judge, filed by Equal Employment Opportunity Commission. Related document(s) 5 ,.(Stern, Jeffrey) (Entered: 03/04/2011)
12 Partial Motion to dismiss complaint filed by Defendant Kaplan Higher Education Corporation. Related document(s) 1 . (Maatman, Gerald) Modified text 3/7/2011 (C,KA). (Entered: 03/04/2011)
13 Brief in support of motion for partial dismissal of complaint filed by Kaplan Higher Education Corporation. Related document(s) 12 , 1 . (Attachments: # 1 Exhibit 1

03/04/2011 03/04/2011 03/11/2011
03/24/2011 03/28/2011 04/06/2011 04/21/2011 04/22/2011
04/27/2011 05/05/2011 05/05/2011 05/06/2011

(Charge of Discrimination)) (Maatman, Gerald) Modified text 3/7/2011 (C,KA). (Entered: 03/04/2011)
14 Corporate Disclosure Statement filed by Kaplan Higher Education Corporation. (Maatman, Gerald) (Entered: 03/04/2011)
15 Answer to 1 Complaint filed by Kaplan Higher Education Corporation. (Maatman, Gerald) (Entered: 03/04/2011)
16 Case Management Order: Case Management Conference was held on 3/9/11. Case is assigned to the complex track. Case is suitable for ECF. Case is not suitable for ADR at this time by may be after discovery. Non−expert discovery as to Phase 1 regarding liability shall be completed on or before 10/3/11. (By agreement of the parties, the individuals who are deposed during phase 1 may be questioned on the issue of damages.) Expert reports shall be exchanged on or before 11/1/11 for party with burden of proof & 12/1/11 for Rebuttal and Expert Discovery shall be completed on or before 1/19/12. Pleadings shall be amended without leave of Court and new parties shall be joined on or before 6/1/11. Dispositive Motions shall be filed on or before 2/16/12. Status Conference by telephone is set 5/16/11 at 09:00 AM. Judge Patricia A. Gaughan on 3/9/11. (LC,S) Time: 30 mins. (Entered: 03/11/2011)
17 Motion for attorney Pamela Q. Devata to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−4617474, filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Affidavit Affidavit in Support of Motion for Admission Pro Hac Vice & Certificate of Good Standing)(Zashin, Stephen) Modified exhibit text on 3/25/2011 (G,CA). (Entered: 03/24/2011)
Order [non−document] Defendant's Motion to admit pro hac vice attorney Pamela Q. Devata as co−counsel for Defendant Kaplan Higher Education Corporation is Granted. Judge Patricia A. Gaughan on 3/28/11. (Related Doc # 17 ) (LC,S). (Entered: 03/28/2011)
18 Opposition to 12 Motion to dismiss (partial of complaint) with Track and Page Certification, Tables of Contents and Authorities and Statement of Issues filed by Equal Employment Opportunity Commission. (Attachments: # 1 Index)(Stern, Jeffrey) (Entered: 04/06/2011)
19 Reply to response to 12 Motion to dismiss (partial of complaint) /Defendant's Reply in Support of its Partial Motion to Dismiss the Complaint filed by Kaplan Higher Education Corporation. (Maatman, Gerald) (Entered: 04/21/2011)
20 Motion to compel discovery / Defendant's Motion to Compel Rule 30(b)(6) Deposition filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Brief in Support Defendant's Memorandum of Law in Support of its Motion to Compel Rule 30(b)(6) Deposition, # 2 Pleading Declaration of Gerald L. Maatman, Jr. in Support of Defendant's Motion to Compel Rule 30(b)(6) Deposition, # 3 Exhibit Exhibit A Kaplans Rule 30(b)(6) Notice Of Deposition Notice To The EEOC, # 4 Exhibit Exhibit B E−Mail Dated April 8, 2011, From Jeffrey Stern, Counsel For The EEOC, To Gerald L. Maatman, Jr., Counsel For Defendant Kaplan, # 5 Exhibit Exhibit C Letter Dated April 13, 2011, From Defendants Counsel, Gerald L. Maatman, Jr., to Jeffrey Stern, Counsel For Plaintiff EEOC)(Maatman, Gerald) (Entered: 04/22/2011)
21 Notice of Supplemental Authority in Support of its Motion to Compel Rule 30(b)(b) Deposition filed by Kaplan Higher Education Corporation. (Attachments: # 1 Exhibit A − Order Dated April 25, 2011, In EEOC v. Sterling Jewelers Inc.)Related document(s) 20 .(Maatman, Gerald) (Entered: 04/27/2011)
22 Motion for leave to File Response Memorandum filed by Equal Employment Opportunity Commission. (Attachments: # 1 Brief in Support EEOC Response Memorandum Opposing Defendant's Partial Motion to Dismiss)(Stern, Jeffrey) Modified on 5/9/2011 (C,KA). (Entered: 05/05/2011)
23 Motion for oral argument on Defendant's Partial Motion to Dismiss filed by Plaintiff Equal Employment Opportunity Commission. Related document(s) 12 . (Stern, Jeffrey) (Entered: 05/05/2011)
24 Defendant's Response to the EEOC's Motion for Leave to File Response Memorandum in Opposition to Defendant's Partial Motion to Dismiss filed by Kaplan Higher

05/09/2011 05/10/2011 05/10/2011 05/10/2011 05/16/2011 05/18/2011
05/18/2011 05/19/2011 05/19/2011 05/23/2011 05/27/2011 06/10/2011
06/13/2011 07/19/2011

Education Corporation. Related document(s) 22 . (Maatman, Gerald) (Entered: 05/06/2011)
25 Opposition to 20 Motion to compel discovery / Defendant's Motion to Compel Rule 30(b)(6) Deposition filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Composite Exhibit 1)(Boehringer, Maria) (Entered: 05/09/2011)
Order [non−document]: EEOC's Motion for leave to file response memorandum in opposition to Defendant's partial motion to dismiss is DENIED. No new arguments were raised in the reply brief. Judge Patricia A. Gaughan on 5/9/11. (LC,S) (Related Doc # 22 ) (Entered: 05/10/2011)
Order [non−document]: EEOC's Motion requesting oral argument on Defendant's partial motion to dismiss is DENIED. Judge Patricia A. Gaughan on 5/9/11. (LC,S) (Related Doc # 23 ) (Entered: 05/10/2011)
26 Memorandum Opinion and Order: Defendant's Partial Motion to Dismiss the Complaint is GRANTED. Judge Patricia A. Gaughan on 5/9/11. (LC,S) re 12 (Entered: 05/10/2011)
Minutes/Order [non−document]: Status Conference was held. Telephonic Status Conference is set 8/17/2011 at 09:00 AM. Judge Patricia A. Gaughan on 5/16/11. (LC,S) Time: 30 mins. (Entered: 05/17/2011)
27 Motion for attorney David J. Rowland to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−4712957, filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Affidavit of David J. Rowland & Certificate of Good Standing)(Zashin, Stephen) Modified exhibit text on 5/18/2011 (G,CA). (Entered: 05/18/2011)
28 Reply to response to 20 Motion to compel discovery / Defendant's Motion to Compel Rule 30(b)(6) Deposition Defendant's Reply in Support of its Motion to Compel Rule 30(b)(6) Deposition filed by Kaplan Higher Education Corporation. (Maatman, Gerald) (Entered: 05/18/2011)
29 Notice of Supplemental Authority in Opposition to Motion to Compel Rule 30(b)(6) Deposition filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Composite Exhibit 1)Related document(s) 25 .(Boehringer, Maria) (Entered: 05/19/2011)
Order [non−document]: Defendant's Motion to Admit Pro Hac Vice attorney David J. Rowland is Granted. Judge Patricia A. Gaughan on 5/18/11. (Related Doc # 27 ) (LC,S) (Entered: 05/19/2011)
30 Notice of Service of EEOC's Responses to Defendant's Request for Production and First Interrogatories filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 05/23/2011)
31 Memorandum Opinion and Order: Defendant's Motion to Compel Rule 30(b)(6) Deposition is GRANTED. Plaintiff may assert applicable privileges during the deposition. Judge Patricia A. Gaughan on 5/26/11. (LC,S) re 20 (Entered: 05/27/2011)
32 Motion for attorney Alexandre S. Drummond to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−4754084, filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Affidavit of Alex S. Drummond & Certificate of Good Standing)(Zashin, Stephen) Modified exhibit text on 6/13/2011 (G,CA). (Entered: 06/10/2011)
Order [non−document] Defendant's Motion to Admit Pro Hac Vice Attorney Alex S. Drummond as co−counsel for Kaplan Higher Education Corporation is Granted. Judge Patricia A. Gaughan on 6/13/11. (Related Doc # 32 ) (LC,S) (Entered: 06/13/2011)
33 Motion for protective order filed by Defendant Kaplan Higher Education Corporation. (Attachments: # 1 Brief in Support (Defendant's Memorandum of Law in Support of its Motion for Entry of a Protective Order, # 2 Affidavit (Declaration of Gerald L. Maatman, Jr. in support of Defendant's Motion for Entry of a Protective Order, # 3 Exhibit A to Maatman Declaration − EEOC's Notice of Subpoenas to Hireright and

08/05/2011 08/11/2011 08/16/2011
08/17/2011 08/30/2011 08/31/2011 09/08/2011 09/12/2011 09/15/2011
09/20/2011 09/26/2011 09/26/2011

GIS (dated May 12, 2011), # 4 Exhibit B to Maatman Declaration − Letter from Gerald L. Maatman, Jr., Counsel for Kaplan, to Jeffrey Stern, Counsel for EEOC (dated May 18, 2011), # 5 Exhibit C to Maatman Declaration − E−mail from Paul Sheldon to Jeffrey Stern, Counsel for EEOC, and Pamela Devata, Counsel for Kaplan (dated June 16, 2011))(Maatman, Gerald) (Entered: 07/19/2011)
34 Opposition to 33 Motion for protective order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Exhibit 1: Declaration of Jeffrey A. Stern, # 2 Exhibit Exhibit 1/Attachment A: Email Confirmation)(Boehringer, Maria) (Entered: 08/05/2011)
35 Reply to response to 33 Motion for protective order (In Support of Its Motion for Entry of a Protective Order) filed by Kaplan Higher Education Corporation. (Maatman, Gerald) (Entered: 08/11/2011)
36 Order: Accordingly, given the Sixth Circuit decisions cited above and the broad nature of discovery contemplated under the Rule 26 of the Federal Rules of Civil Procedure, the defendant's Motion for Entry of a Protective Order, seeking to bar the plaintiff from requesting documents predating May 2, 2008 (Doc. 33 ), is DENIED. Judge Patricia A. Gaughan on 8/16/11. (LC,S) (Entered: 08/16/2011)
Minutes/Order: Status Conference was held. Telephonic Status Conference is set 9/27/2011 at 09:00 AM. Judge Patricia A. Gaughan on 8/17/11. (LC,S) Time: 30 mins. (Entered: 08/19/2011)
37 Motion to Modify Case Management Order filed by Plaintiff Equal Employment Opportunity Commission. Related document(s) 16 , 36 . (Attachments: # 1 Brief in Support, # 2 Declaration of Jeffrey A. Stern)(Stern, Jeffrey) Modified text on 8/31/2011 (B,B). (Entered: 08/30/2011)
38 Declaration in Support of Motion to Modify Case Management Order, Signed filed by Equal Employment Opportunity Commission. Related document(s) 37 . (Stern, Jeffrey) Modified text on 9/1/2011 (B,B). (Entered: 08/31/2011)
39 Proposed Stipulation Confidentiality and Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Service Certificate)(Stern, Jeffrey) (Entered: 09/08/2011)
40 Confidentiality Stipulation and Order. Judge Patricia A. Gaughan on 9/9/11. (LC,S) re 39 (Entered: 09/12/2011)
41 Opposition to 37 Motion Modify to Case Management Order filed by Kaplan Higher Education Corporation. (Attachments: # 1 Declaration of Gerald L. Maatman, Jr., in Opposition to EEOC's Motion to Modify Case Management Order, # 2 Exhibit 1 to Maatman's Declaration − EEOC's First Interrogatories and Request for Production to Kaplan (dated April 29, 2011), # 3 Exhibit 2 to Maatman's Declaration − EEOC's Notice Before Service of Subpoenas (dated May 12, 2011), # 4 Exhibit 3 to Maatman's Declaration − Letter to the EEOC (dated May 17, 2011), # 5 Exhibit 4 to Maatman's Declaration − EEOC's Notice Before Service of Subpoenas (dated August 29, 2011), # 6 Exhibit 5 to Maatman's Declaration − EEOC's Notice of Depositions (dated August 31, 2011), # 7 Exhibit 6 to Maatman's Declaration − EEOC's Third Notice Before Service of Subpoenas (dated September 6, 2011))(Maatman, Gerald) (Entered: 09/15/2011)
42 Attorney Appearance by Melanie M. Peterson filed by on behalf of Equal Employment Opportunity Commission. (Peterson, Melanie) (Entered: 09/20/2011)
43 UNSIGNEDReply to response to 37 Motion Modify to Case Management Order filed by Equal Employment Opportunity Commission. (Boehringer, Maria) Modified on 9/27/2011 (C,KA). (Entered: 09/26/2011)
44 UNSIGNEDReply to response to 37 Motion Modify to Case Management Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 (Stern Supplemental Declaration), # 2 Exhibit 2 (Defendant's Initial Disclosures), # 3 Exhibit 3 (Defendant's Discovery Responses), # 4 Exhibit 4 (August Status Report), # 5 Exhibit 5 (Drummond Email 8/24/11), # 6 Exhibit 6 (Stern Email 7/14/11), # 7 Exhibit 7 (September Status Report), # 8 Exhibit 10 (Stern Email 7/7/11), # 9 Exhibit 11 (Stern Email 8/22/11), # 10 Exhibit 12 (GIS Email 8/22/11), # 11 Exhibit 13 (Stern Email

09/27/2011 09/27/2011 09/27/2011 09/27/2011 11/28/2011 12/22/2011
01/04/2012 01/13/2012
01/17/2012 01/17/2012 01/17/2012

9/2/11), # 12 Exhibit 14 (Maatman Email 9/4/11), # 13 Exhibit 15 (Stern Email 9/6/11), # 14 Exhibit 16 (Stern Email 9/8/11), # 15 Exhibit 17 (GIS Email 9/6/11), # 16 Exhibit 18 (Stern Email 9/7/11), # 17 Exhibit 19 (Stern/Drummond Email 9/8/11), # 18 Exhibit 20 (Stern Email 8/31/11)(Boehringer, Maria) Modified on 9/27/2011 (C,KA). (Entered: 09/26/2011)
45 UNSIGNEDSupplement /Correction to Reply Memorandum in Support of EEOC's Motion to Modify Case Management Order to 44 Reply filed by Equal Employment Opportunity Commission. (Boehringer, Maria) Modified on 9/27/2011 (C,KA). (Entered: 09/27/2011)
46 UNSIGNED Notice of Filing Exhibit 21 in Support of EEOC Reply re: Motion to Modify Case Management Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 21 (29 C.F.R. Sec. 1607.4, EEOC Uniform Guidelines on Employee Selection Procedures/UGESP))Related document(s) 44 .(Boehringer, Maria) Modified on 9/27/2011 (C,KA). (Entered: 09/27/2011)
Minutes/Order [non−document]: Status Conference was held. Telephonic Status Conference is set 11/28/2011 at 09:00 a.m. Judge Patricia A. Gaughan on 9/27/11. (LC,S) (Entered: 09/28/2011)
Order [non−document]: EEOC's Motion to Modify Case Management Order is Granted. Non−expert discovery deadline is extended to 2/3/12. Expert report for the party with the burden of proof is now due 3/1/12. Rebuttal report is due 4/1/12. Expert discovery deadline is 5/1/12. Dispositive motions are due 6/1/12. Judge Patricia A. Gaughan on 9/27/11. (LC,S) (Related Doc # 37 ) (Entered: 09/28/2011)
Minutes/Order [non−document]: Status Conference was held. Telephonic Status Conference is set 1/4/2012 at 09:00 a.m. Judge Patricia A. Gaughan on 11/28/11. (LC,S) Time: 30 mins. (Entered: 11/28/2011)
47 Motion to amend complaint filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 Proposed Amended Complaint, # 2 Brief in Support , # 3 Exhibit 1 Seelye transcript abstract, # 4 Exhibit 2 Kaplan Press Release, # 5 Exhibit 3 Ohio Kaplan Corporation Details, # 6 Exhibit 4 Delaware Kaplan Detail Information, # 7 Exhibit 5 Counsel correspondence)(Stern, Jeffrey) Modified text 3/1/2012 (C,KA). (Entered: 12/22/2011)
Minutes/Order [non−document]: Status Conference was held. Brief in Opposition to the pending Motion for Leave to Amend Complaint is due 1/13/12. Telephonic Status Conference is set 2/2/12 at 8:45 a.m. Judge Patricia A. Gaughan on 1/4/12. (LC,S) Time: 30 mins. (Entered: 01/09/2012)
48 Opposition to 47 Motion to amend complaint (Defendant's Response In Opposition to Plaintiff's motion for Leave to Amend Its Complaint) filed by Kaplan Higher Education Corporation. (Attachments: # 1 Exhibit A (Declaration of Christopher Paetsch), # 2 Exhibit B (Howard Rogoff Deposition), # 3 Exhibit C (Declaration of Gerald L. Maatman, Jr.))(Riley, Jennifer) Opposition filed by attorney Gerald L. Maatman, Jr. however login inadvertently used to file is assigned to attorney Jennifer A. Riley. Modified text on 1/13/2012 (M,TJ). (Entered: 01/13/2012)
49 Motion to modify Case Management Order filed by Plaintiff Equal Employment Opportunity Commission. (Boehringer, Maria) Modified text 1/18/2012 (C,KA). (Entered: 01/17/2012)
50 Memorandum of Law in Support of Motion to Modify Case Management Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Brief in Support Memorandum of Law)Related document(s) 49 .(Boehringer, Maria) Modified text 1/18/2012 (C,KA). (Entered: 01/17/2012)
51 Notice of Filing Declaration of Jeffrey A. Stern in Support of Motion to Modify Case Management Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of Jeffrey A. Stern, # 2 Exhibit 1 − email, # 3 Exhibit 2 − email, # 4 Exhibit 3 − email, # 5 Exhibit 4 − email, # 6 Exhibit 5 − letter, # 7 Exhibit 6 − letter, # 8 Exhibit 7 − letter, # 9 Exhibit 8 − email, # 10 Exhibit 9 − letter, # 11 Exhibit 10 − email, # 12 Exhibit 11 − email, # 13 Exhibit 12 − email, # 14 Exhibit 13 − responses/objections to interrogatories, # 15 Exhibit 14 − responses/objections to

01/19/2012 01/20/2012 01/20/2012 01/20/2012 01/20/2012 01/20/2012
01/27/2012
01/27/2012 02/29/2012 03/14/2012 04/02/2012 04/05/2012 04/05/2012

interrogatories)Related document(s) 49 .(Boehringer, Maria) Modified text 1/18/2012 (C,KA). (Entered: 01/17/2012)
52 Notice of Filing Joint Stipulation for Entry of Modified Case Management Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order Joint Stipulation for Entry of Modified Case Management Order)Related document(s) 49 .(Boehringer, Maria) (Entered: 01/19/2012)
53 Motion for extension of Time to File Reply in Support of EEOC's Motion to Amend Complaint until January 27, 2012 filed by Plaintiff Equal Employment Opportunity Commission. Related document(s) 47 . (Boehringer, Maria) (Entered: 01/20/2012)
Order [non−document]: EEOC's Unopposed Motion for extension of Time to File Reply in Support of EEOC's Motion to Amend Complaint is Granted to January 27, 2012. Judge Patricia A. Gaughan on 1/20/12. (LC,S) re 53 (Entered: 01/23/2012)
Order [non−document]: In light of the modified Case Management Order, Telephonic Status Conference is changed from 2/2/12 to 4/5/12 at 9:00 a.m. Judge Patricia A. Gaughan on 1/20/12. (LC,S) (Entered: 01/23/2012)
Order [non−document]: EEOC's Motion to Modify Case Management Order is Withdrawn. Judge Patricia A. Gaughan on 1/20/12. (LC,S) re 49 Modified on 1/23/2012 (LC,S). (Entered: 01/23/2012)
54 Order and Joint Stipulation for Entry of Modified Case Management Order: 1. Based on the progress of Phase I fact discovery conducted thus far, the parties stipulate to entry of a modified Case Management Order as follows: a. an extension of Phase I fact discovery from 2/3/12 to 4/3/12; b. an extension of the deadline for the parties to exchange expert reports as to their respective burdens of proof from 3/1/12 to 5/1/12; c. an extension of the deadline for exchange of rebuttal expert reports from 4/1/12 to 6/1/12; d. an extension of the deadline to conduct expert discovery from 5/1/12 to 7/2/12; and e. an extension of the deadline to file dispositive motionsfrom 6/1/12 to 8/1/12. Judge Patricia A. Gaughan on 1/20/12. (LC,S) re 52 (Entered: 01/23/2012)
55 Reply to response to 47 Motion to amend complaint filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Kaplan Complaint (Iowa College Acquisition Corporation d/b/a Kaplan University, et al. v. Jonathan David, et al.), # 2 Exhibit DOJ Settlement Agreement, # 3 Exhibit United States Notice of Intervention, # 4 Exhibit Seelye Deposition Excerpt, # 5 Exhibit Seelye Deposition Exhibits (1 & 2), # 6 Exhibit Rogoff Deposition Excerpt, # 7 Exhibit Corser Deposition Excerpt)(Boehringer, Maria) (Entered: 01/27/2012)
56 Supplement to 47 Motion to amend complaint filed by Equal Employment Opportunity Commission. Related document(s) 47 . (Boehringer, Maria) (Entered: 01/27/2012)
57 Memorandum Opinion and Order: The EEOC's motion for leave to file an amended complaint naming Kaplan, Inc. and ICAC as defendants is granted. Judge Patricia A. Gaughan on 2/29/12. (LC,S) re 47 (Entered: 02/29/2012)
58 Amended complaint against All Defendants and adding new party defendant(s) Kaplan, Inc., Iowa College Acquisition Corporation. Filed by Equal Employment Opportunity Commission. (Stern, Jeffrey) (Entered: 03/14/2012)
59 Answer to 58 Amended complaint filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Maatman, Gerald) (Entered: 04/02/2012)
Minutes of proceedings [non−document]Status Conference was held. Defendant's motion to compel is due 4/06/12. Brief in opposition is due 4/12/12. Reply brief is due 4/16/12. Telephonic Status Conference is set 6/05/12 at 9:15 a.m. with the Court initiating the call. Judge Patricia A. Gaughan 4/05/12 Time: 30 mins. (D,MB) (Entered: 04/05/2012)
60 EEOC's Notice of Filing Defendant's March 2011 Notice of 30(b)(6) Deposition and Defendant's March 2012 Amended Notice of 30(b)(6) Deposition filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Defendant's March 2011 Notice of 30(b)(6) Deposition, # 2 Exhibit Defendant's March 2012 Amended

04/06/2012 04/06/2012
04/06/2012
04/10/2012 04/11/2012 04/11/2012 04/12/2012
04/16/2012 04/18/2012

Notice of 30(b)(6) Deposition)(Boehringer, Maria) (Entered: 04/05/2012)
61 Motion to compel discovery (Defendants' Motion to Compel Production of Documents and Information and Rule 30(b)(6) Witness filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Maatman, Gerald) (Entered: 04/06/2012)
62 Affidavit/Declaration of Gerald L. Maatman, Jr., in Support of Motion to Compel filed by All Defendants. Related document(s) 61 . (Attachments: # 1 Exhibit 1 − Kaplans Notice of Rule 30(b)(6) Deposition, # 2 Exhibit 2 − OPM Letter dated January 18, 2012, # 3 Exhibit 3 − OPM Letter dated January 27, 2012, # 4 Exhibit 4 − Introduction of Credentialing, Suitability, and Security Clearance Decision−Making Guide dated January 14, 2008, # 5 Exhibit 5 − Kaplans Counsels February 17, 2012, # 6 Exhibit 6 − EEOC Handbook, # 7 Exhibit 7 − Kaplans Counsels March 23, 2012, # 8 Exhibit 8 − Email from EEOCs Counsel, Jeffrey Stern, to Kaplans Counsel dated March 27, 2012, # 9 Exhibit 9 − Email from Kaplans Counsel, David Rowland, to EEOCs Counsel dated March 27, 2012, # 10 Exhibit 10 − Email from EEOCs Counsel, Jeffrey Stern, to Kaplans Counsel dated April 2, 2012, # 11 Exhibit 11 − August 3, 2010 Letter from Brian Shelton to Patricia Anderson Pryor, # 12 Exhibit 12 − Kaplans July 10, 2011 Letter to Jeffrey Stern and Maria Boehringer, EEOC's Counsel, # 13 Exhibit 13 − Email from EEOCs Counsel, Jeffrey Stern, to Kaplans Counsel dated September 9, 2011, # 14 Exhibit 14 − Kaplans March 21, 2012 Letter to Jeffrey Stern, EEOC's Counsel, # 15 Exhibit 15 − Deposition Transcript of Felandis Maurice Mosley dated March 30, 2012)(Maatman, Gerald) (Entered: 04/06/2012)
63 Brief (Memorandum of Law in Support of Motion to Compel) filed by All Defendants. Related document(s) 61 , 62 . (Attachments: # 1 Exhibit A − Defendants First Set of Requests for Production of Documents, # 2 Exhibit B − Defendants First Set of Interrogatories to Plaintiff, # 3 Exhibit C − EEOCs Response to Defendants First Request for Production of Documents, # 4 Exhibit D − EEOC's Answers to Defendants First Set of Interrogatories to Plaintiff, # 5 Exhibit E − EEOCs Supplemental Responses to Defendants First Request for Production, # 6 Exhibit F − EEOCs Supplemental Answers to Defendants First Set of Interrogatories, # 7 Exhibit G − Amended Notice of Rule 30(b)(6) Deposition) (Maatman, Gerald) (Entered: 04/06/2012)
64 Motion for extension of time until April 19, 2012 to to File Opposition to Defendant's Motion to Compel filed by Plaintiff Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 04/10/2012)
65 Response to 64 Motion for extension of time until April 19, 2012 to to File Opposition to Defendant's Motion to Compel filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Maatman, Gerald) (Entered: 04/11/2012)
Order [non−document]: EEOC's Motion for One Week Extension of Time to File Opposition to Defendant's Motion to Compel is DENIED. Judge Patricia A. Gaughan on 4/11/12. (LC,S) re 64 (Entered: 04/11/2012)
66 Opposition to 61 Motion to compel discovery (Defendants' Motion to Compel Production of Documents and Information and Rule 30(b)(6) Witness filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Defendant's March 2011 Notice of 30(b)(6) Deposition, # 2 Exhibit Defendant's March 2012 Notice of 30(b)(6) Deposition, # 3 Exhibit EEOC Policy on Personnel Suitability and Investigations, # 4 Exhibit Position Designation of National Security and Public Trust Positions, # 5 Exhibit FIN 10−06, # 6 Exhibit Position Designation Record, # 7 Exhibit Position Designation System and Automated Tool, # 8 Exhibit Guide To Senior Executive Service Qualifications, # 9 Exhibit 30(b)(6) Deposition Felandis M. Mosley, 3/30/12, # 10 Exhibit EEOC Letter to OPM, 3/8/11, # 11 Exhibit Declaration of Jeffrey Stern)(Boehringer, Maria) (Entered: 04/12/2012)
67 Reply to response to 61 Motion to compel discovery filed by All Defendants. (Maatman, Gerald) Modified text 4/18/2012 (C,KA). (Entered: 04/16/2012)
68 Memorandum Opinion and Order: Kaplan's Motion to Compel Production of Documents and Information and Rule 30(b)(6) Witness is granted. The EEOC must produce a Rule 30(b)(6) designee to testify as to the EEOC's position descriptions and

06/01/2012 06/05/2012 06/05/2012 09/06/2012 09/06/2012 09/06/2012 09/07/2012
09/24/2012
10/01/2012 10/05/2012 10/09/2012 11/01/2012 11/02/2012

how the position descriptions are assigned a risk level designation as requested in Topic 10. In addition, the EEOC must disclose to Kaplan information sufficient to identify the individuals the EEOC claims have been aggrieved by Kaplan's policies in this case. Judge Patricia A. Gaughan on 4/18/12. (LC,S) re 61 (Entered: 04/19/2012)
69 Joint Proposed Stipulation to Modify Case Management Order filed by all parties. Related document(s) 54 .(Stern, Jeffrey) Modified text/filers 6/4/2012 (C,KA). (Entered: 06/01/2012)
Minutes/Order [non−document]: Status Conference was held. Telephonic Status Conference is set 10/9/12 at 9:00 a.m. with the Court initiating the call. Judge Patricia A. Gaughan on 6/5/12. (LC,S) Time: 30 mins. (Entered: 06/06/2012)
70 Order and Joint Stipulation for Entry of Modified Case Management Conference. Judge Patricia A. Gaughan on 6/5/12. (LC,S) re 69 . (Entered: 06/06/2012)
71 Motion for attorney David B. Ross to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0647−5569230, filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Attachments: # 1 Affidavit of David B. Ross)(Rossiter, Britt) (Entered: 09/06/2012)
72 Motion to strike supplemental expert report of Dr. Kevin R. Murhpy and Motion to prohibit Dr. Murphy as witness filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc. (Maatman, Gerald). Modified text/added motion on 9/7/2012 (C,KA). (Entered: 09/06/2012)
73 Affidavit/Declaration of Gerald R. Maatman, Jr. filed by All Defendants. Related document(s) 72 . (Maatman, Gerald) (Entered: 09/06/2012)
Order [non−document]: Kaplan's Motion for admission pro hac vice of attorney David B. Ross is Granted. (Local Rule 5.1(c) requires that attorneys register for CM/ECF and file and receive all documents electronically. The CM/ECF registration form can be found at www.ohnd.uscourts.gov under Forms.) Judge Patricia A. Gaughan on 9/7/12. (Related Doc # 71 ) (LC,S) (Entered: 09/10/2012)
74 Opposition to 72 Motion to strike supplemental expert report of Dr. Kevin R. MurhpyMotion to prohibit Dr. Murphy as witness and EEOC's Cross−Motion to Exclude Defendant From Offering Expert Opinion Regarding Job Relatedness and Business Necessity filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit EEOC's Expert Report of Dr. Kevin Murphy 5/1/12, # 2 Exhibit EEOC's Expert Report of Dr. Kevin Murphy 8/17/12, # 3 Exhibit Defendant's Expert Report of Dr. Michael Aamodt 8/27/12, # 4 Exhibit Defendant's Expert Report of Dr. Ali Saad 8/27/12, # 5 Exhibit EEOC's Supplemental Expert Report 9/5/12, # 6 Exhibit Uniform Guidelines on Selection Procedures, # 7 Exhibit SIOP Principles on Validation/Selection Procedures)(Boehringer, Maria) (Entered: 09/24/2012)
75 Reply to response to 72 Motion to strike supplemental expert report of Dr. Kevin R. MurhpyMotion to prohibit Dr. Murphy as witness filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Maatman, Gerald) (Entered: 10/01/2012)
76 Order : Defendants' Motion to Strike Plaintiff's Supplemental Expert Report and to Prohibit Plaintiff from Using Dr. Kevin R. Murphy as a Witness with Respect to the Information and Opinions in the Supplemental Expert Report is denied. (Related Doc # 72 )Judge Patricia A. Gaughan on 10/05/12.(D,Ma) (Entered: 10/05/2012)
Minutes/Order [non−document]: Status Conference was held. Dispositive Motion deadline is extended to 11/16/12. Settlement Conference is set 2/21/13 at 9:30 a.m. Judge Patricia A. Gaughan on 10/9/12. (LC,S) Time: 30 mins. (Entered: 10/09/2012)
77 Unopposed Motion for extension of dispositive motions until November 21, 2012 filed by Plaintiff Equal Employment Opportunity Commission. (Stern, Jeffrey) (Entered: 11/01/2012)
Order [non−document]: EEOC's Motion for Extension of Time to File Dispositive Motions is Granted to 11/21/12. Judge Patricia A. Gaughan on 11/2/12. (LC,S) re 77 (Entered: 11/02/2012)

11/15/2012 11/16/2012 11/30/2012 11/30/2012
11/30/2012
11/30/2012 11/30/2012

78 Motion for extension of dispositive motions until November 30, 2012 filed by Plaintiff Equal Employment Opportunity Commission. (Stern, Jeffrey) (Entered: 11/15/2012)
Order [non−document]: EEOC's Motion for Extension of Time to File Dispositive Motions is GRANTED to 11/30/12. There will be no further extensions. Judge Patricia A. Gaughan on 11/16/12. (LC,S) re 78 (Entered: 11/16/2012)
79 Motion for summary judgment filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Attachments: # 1 Brief in Support)(Maatman, Gerald) (Entered: 11/30/2012)
80 Motion for partial summary judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Bouchard Deposition Excerpt, # 2 Exhibit Calfee Deposition Exhibit 1, # 3 Exhibit Calfee Deposition Exhibit 3, # 4 Exhibit Corser Deposition Excerpt, # 5 Exhibit Corser Deposition Exhibit 4, # 6 Exhibit Dervin Deposition Excerpt, # 7 Exhibit Dervin Deposition Exhibit 5, # 8 Exhibit Rogoff Deposition Excerpt, # 9 Exhibit Rogoff Deposition Exhibit 2, # 10 Exhibit Nichols Deposition Excerpt, # 11 Exhibit Seelye Deposition Excerpt, # 12 Exhibit Seelye Deposition Exhibits, # 13 Exhibit Van Patten Deposition Excerpt, # 14 Exhibit Van Patten Deposition Exhibit 1, # 15 Exhibit Defense Expert (Aamodt) Deposition, # 16 Exhibit Defense Expert (Aamodt) Deposition Excerpts)(Boehringer, Maria) (Attachment 2 replaced per order filed on 12/7/12) NEF regenerated on 12/7/12 (M,V). (Entered: 11/30/2012)
81 Affidavit/Declaration of Gerald L. Maatman, Jr. In Support of Defendants' Motion For Summary Judgment filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 79 . (Attachments: # 1 Exhibit 1−Paetsch Declaration, # 2 Exhibit 2−Seelye Deposition Excerpts, # 3 Exhibit 3−FSA Letter, # 4 Exhibit 4−Rogoff Declaration, # 5 Exhibit 5−Laury Deposition Excerpts, # 6 Exhibit 6−Smith Declaration, # 7 Exhibit 7−Statement of Work, # 8 Exhibit 8−Client Information Form, # 9 Exhibit 9−FSA Newsletter, # 10 Exhibit 10−Van Patten Deposition Excerpts, # 11 Exhibit 11−Van Patten E−Mail, # 12 Exhibit 12−GIS Spreadsheet Excerpt, # 13 Exhibit 13−OIG Final Inspection Report, # 14 Exhibit 14−Klier Deposition Excerpts, # 15 Exhibit 15−Mosley Deposition Excerpts, # 16 Exhibit 16−GIS Background Report, # 17 Exhibit 17−Smith Deposition Excerpts, # 18 Exhibit 18−Rogoff Deposition Excerpts, # 19 Exhibit 19−Spence Deposition Excerpts, # 20 Exhibit 20−Aamodt Expert Report, # 21 Exhibit 21−Van Patten E−Mail, # 22 Exhibit 22−Background−Credit Checks Documentation, # 23 Exhibit 23−Corser Deposition Excerpts, # 24 Exhibit 24−Dervin Deposition Excerpts, # 25 Exhibit 25−Murphy Expert Report, # 26 Exhibit 26−Saad Declaration & Expert Report, # 27 Exhibit 27−Murphy Deposition Excerpts, # 28 Exhibit 28−Saad Deposition Excerpts, # 29 Exhibit 29−Financial Review PowerPoint, # 30 Exhibit 30−EEOC Personnel Suitability Handbook, # 31 Exhibit 31−National Security Directive 63, # 32 Exhibit 32−Executive Order, # 33 Exhibit 33−Transcript of Oral Argument)(Maatman, Gerald) (Entered: 11/30/2012)
82 Motion To Exclude The Reports And Testimony Of Dr. Kevin R. Murphy filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Attachments: # 1 Brief in Support Of Defendants' Motion To Exclude The Reports And Testimony Of Dr. Kevin R. Murphy)(Maatman, Gerald) (Entered: 11/30/2012)
83 Affidavit/Declaration of Gerald L. Maatman, Jr. In Support of Defendants' Motion To Exclude The Reports And Testimony of Dr. Kevin R. Murphy filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 82 . (Attachments: # 1 Exhibit 1 − Aug 17, 2012 Expert Report of Dr. Murphy, # 2 Exhibit 2 − Aug 27, 2012 Expert Report of Dr. Saad, # 3 Exhibit 3 − Aug 27, 2012 Expert Report of Dr. Aamodt, # 4 Exhibit 4 − Sept 5, 2012 Supplemental Expert Report of Dr. Murphy, # 5 Exhibit 5 − Relevant Portions of Transcript of Dep of Dr. Murphy Taken Sept 12 & Nov 8, # 6 Exhibit 6 − Sept 26, 2012 Letter from G. Maatman to J. Stern, # 7 Exhibit 7 − Dep of Ex.13 from Nov 8 Dep of Dr. Murphy, # 8 Exhibit 8 − Dep of Ex.14 from Nov 8 Dep of Dr. Murphy, # 9 Exhibit 9 − Dep of Ex.15 from Nov 8 Dep of Dr. Murphy, # 10 Exhibit 10 − Aug 23, 2012 E−Mail from J. Stern to M. Gagnon, # 11 Exhibit 11 − May 2012 Invoice from Landy Litigation)(Maatman, Gerald) (Entered: 11/30/2012)

11/30/2012 12/04/2012 12/06/2012 12/06/2012 12/07/2012
12/10/2012 12/11/2012 12/11/2012 12/12/2012 12/14/2012 12/21/2012 12/21/2012
12/22/2012 12/22/2012
12/22/2012 12/22/2012 12/22/2012

84 Affidavit/Declaration of Ali Saad, Ph.D. filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 82 . (Maatman, Gerald) (Entered: 11/30/2012)
85 Motion to seal Jane Doe Exhibits filed by Plaintiff Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 12/04/2012)
86 Emergency Motion to withdraw document Doc#80−2 filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Corrected Exhibit 1 to Calfee Deposition)(Boehringer, Maria) (Entered: 12/06/2012)
87 Notice of Filing Exhibit Key For Evidence Cited in EEOC's Motion for Summary Judgment filed by Equal Employment Opportunity Commission. Related document(s) 80 .(Boehringer, Maria) (Entered: 12/06/2012)
Order [non−document]: EEOC'S Emergency Motion to Withdraw Doc. #80−2 From the Public Record and Substitute Corrected Exhibit is Granted. Judge Patricia A. Gaughan on 12/7/12. (LC,S) (Related Doc # 86 ) Attachment 2 to document number 80 replaced on 12/7/12. (M,V). (Entered: 12/07/2012)
Order [non−document]granting EEOC's Motion to file Jane Doe exhibits under seal Approved by Judge Patricia A. Gaughan on 12/10/2012.(Related Doc # 85 )(B,B) (Entered: 12/10/2012)
88 SEALED Document:Jane Doe Exhibits in Support of EEOC's Motion for Partial Summary Judgment filed by Equal Employment Opportunity Commission. Related document(s) 80 . (Boehringer, Maria) (Entered: 12/11/2012)
89 Motion for extension of time until 12/21/12 to File Opposition to Defendant's Daubert Motion filed by Plaintiff Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 12/11/2012)
Order [non−document] EEOC's motion for four−day extension of time to file opposition to Defendant's Daubert Motion is granted to 12/21/12. 89 Judge Patricia A. Gaughan on 12/12/12.(D,Ma) (Entered: 12/12/2012)
90 Motion for Order Excluding Defendant's Expert Michael G. Aamodt filed by Plaintiff Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 12/14/2012)
91 Opposition to 82 Motion To Exclude The Reports And Testimony Of Dr. Kevin R. Murphy filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 12/21/2012)
92 Affidavit/Declaration of Kevin R. Murphy filed by Equal Employment Opportunity Commission. Related document(s) 91 . (Attachments: # 1 Exhibit Exhibit A May 1st Murphy Report, # 2 Exhibit Exhibit B August 17 Murphy Report, # 3 Exhibit Exhibit C Murphy Supplemental Report September 5, # 4 Exhibit Exhibit D Summary, # 5 Exhibit Exhibt E Photo Compilation, # 6 Exhibit Exhibit F Article OSU 1999, # 7 Exhibit Exhibit G Output Displays)(Stern, Jeffrey) (Entered: 12/22/2012)
93 Opposition to 82 Motion To Exclude The Reports And Testimony Of Dr. Kevin R. Murphy (CORRECTED) filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 12/22/2012)
94 Affidavit/Declaration of Jeffrey A. Stern filed by Equal Employment Opportunity Commission. Related document(s) 91 , 93 . (Attachments: # 1 Exhibit 1 Letter Kaplan to Stern, # 2 Exhibit 2 Federal Register Excerpts, # 3 Exhibit 3 Email Stern to Rowland, # 4 Exhibit 4 Email Rowland to Stern)(Stern, Jeffrey) (Entered: 12/22/2012)
95 Appendix Kevin R. Murphy Deposition Excerpts filed by Equal Employment Opportunity Commission. Related document(s) 91 , 93 . (Stern, Jeffrey) (Entered: 12/22/2012)
96 Appendix Ali Saad Deposition Excerpts filed by Equal Employment Opportunity Commission. Related document(s) 91 , 93 . (Stern, Jeffrey) (Entered: 12/22/2012)
97 Notice of Service of Declaration of Kevin Murphy, Declaration of Jeffrey Stern, Kevin Murphy Deposition Excerpt, Ali Saad Deposition Excerpt Notice of Filing and

12/26/2012 12/31/2012 12/31/2012
12/31/2012 01/03/2013 01/03/2013
01/03/2013

Certificate of Service filed by Equal Employment Opportunity Commission. Related document(s) 94 , 92 , 95 , 96 .(Stern, Jeffrey) (Entered: 12/22/2012)
98 Unopposed Motion for extension of time until January 3, 2013 to file Defendants' Unopposed Motion For Extension Of Time To File Opposition To EEOC's Motion To Exclude Defendant's Expert Michael G. Aamodt filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 90 . (Maatman, Gerald) (Entered: 12/26/2012)
99 Response to 90 Motion for Order Excluding Defendant's Expert Michael G. Aamodt (Defendants' Response in Opposition To Plaintiff's Motion to Exclude Defendants' Expert Michael G. Aamodt) filed by Kaplan Higher Education Corporation, Kaplan, Inc.. (Maatman, Gerald) (Entered: 12/31/2012)
100 Affidavit/Declaration Of Gerald L. Maatman, Jr. In Support of Defendants' Response In Opposition To Plaintiff's Motion To Exclude Defendants' Expert Michael G. Aamodt filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 99 . (Attachments: # 1 Exhibit 1−Expert Report of Ali Saad, Ph.D., # 2 Exhibit 2−−Expert Report of Michael G. Aamodt, Ph.D., # 3 Exhibit 3−Excerpts from Deposition of Michael G. Aamodt, Ph.D., # 4 Exhibit 4−Expert Report of Kevin R. Murphy, Ph.D., # 5 Exhibit 5−Excerpts from 9/12/12 Deposition of Kevin R. Murphy, Ph.D., # 6 Exhibit 6−EEOC's Personnel Suitability & Secuity Handbook, # 7 Exhibit 7−EEOC Enforcement Guidance, # 8 Exhibit 8−Excerpts from Deposition of Matthew C. Seelye, # 9 Exhibit 9−Supplemental Expert Report of Kevin R. Murphy, Ph.D., # 10 Exhibit 10−Excerpts from Deposition of F. Maurice Mosley)(Maatman, Gerald) (Entered: 12/31/2012)
101 Defendants' Reply Memo In Further Support of Their Motion to Exclude The Reports & Testimony of Dr. Kevin R. Murphy filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 82 , 93 . (Maatman, Gerald) (Entered: 12/31/2012)
102 Response to 80 Motion for partial summary judgment (Defendants' Response In Opposition to Plaintiff's Motion For Partial Summary Judgment) filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Maatman, Gerald) (Entered: 01/03/2013)
103 Affidavit/Declaration of Gerald L. Maatman, Jr. In Support of Defendants Response In Opposition To Plaintiffs Motion For Partial Summary Judgment filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 102 . (Attachments: # 1 Exhibit 1−Paetsch Declaration, # 2 Exhibit 2−Seelye Deposition Excerpts, # 3 Exhibit 3−Letter Regarding NSLDS Access, # 4 Exhibit 4−Rogoff Declaration, # 5 Exhibit 5−Laury Deposition Excerpts, # 6 Exhibit 6−Calfee Deposition Excerpts, # 7 Exhibit 7−Spreadsheet of Data Excerpts, # 8 Exhibit 8−Aamodt Deposition Excerpts, # 9 Exhibit 9−NSLDS Newsletter, # 10 Exhibit 10−Van Patten Deposition Excerpts, # 11 Exhibit 11−Van Patten E−Mail 10/09, # 12 Exhibit 12−Murphy Report, # 13 Exhibit 13−EEOC Enforcement Guidance, # 14 Exhibit 14−Financial Review Powerpoint, # 15 Exhibit 15−Mosley Deposition Excerpts 3/30/12, # 16 Exhibit 16−EEOC Personnel Suitability & Security Handbook, # 17 Exhibit 17−Smith Deposition Excerpts, # 18 Exhibit 18−Rogoff Deposition Excerpts, # 19 Exhibit 19−Spence Deposition Excerpts, # 20 Exhibit 20−Aamodt Expert Report, # 21 Exhibit 21−Van Patten E−Mail 9/07, # 22 Exhibit 22−Murphy Deposition Excerpts, # 23 Exhibit 23−Corser Deposition Excerpt, # 24 Exhibit 24−Dervin Deposition Excerpts, # 25 Exhibit 25−OPM Letter 1/18/12, # 26 Exhibit 26−OPM Letter 1/27/12 (Pt. 1), # 27 Exhibit 26−OPM Letter 1/27/12 (Pt. 2), # 28 Exhibit 27−OPM Position Designation, # 29 Exhibit 28−Mosley Deposition Excerpts 7/26/12)(Maatman, Gerald) (Entered: 01/03/2013)
104 EEOC's Notice of Filing Exhibits in Opposition to Defendants' Summary Judgment Motion and Certificate of Service filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Howard Rogoff Deposition Excerpts, # 2 Exhibit Jerry Dervin Deposition Excerpts, # 3 Exhibit Charlene Smith Deposition Excerpts, # 4 Exhibit Kevin Murphy Declaration 1_3_2013)Related document(s) 79 .(Stern, Jeffrey) (Entered: 01/03/2013)

01/03/2013 01/07/2013 01/10/2013 01/22/2013 01/22/2013
01/22/2013 01/28/2013
01/28/2013 02/06/2013 02/26/2013 02/26/2013
02/26/2013
03/04/2013 03/07/2013 03/07/2013

105 Opposition to 79 Motion for summary judgment filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 01/03/2013)
Order [non−document]: Defendants' Unopposed Motion for Extension of Time to File Opposition to EEOC's Motion to Exclude Defendant's Expert Michael G. Aamodt is MOOT. Judge Patricia A. Gaughan on 1/7/13. (LC,S) re 98 (Entered: 01/07/2013)
106 Reply to response to 90 Motion for Order Excluding Defendant's Expert Michael G. Aamodt filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 01/10/2013)
107 Defendants' Reply In Support of Their Motion for Summary Judgment filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 79 , 105 . (Maatman, Gerald) (Entered: 01/22/2013)
108 Affidavit/Declaration DECLARATION OF GERALD L. MAATMAN, JR. IN SUPPORT OF DEFENDANTS' REPLY filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. Related document(s) 107 . (Attachments: # 1 Exhibit 34 − Smith Deposition Excerpts, # 2 Exhibit 35 − Rogoff Deposition Excerpts)(Maatman, Gerald) (Entered: 01/22/2013)
109 Reply to response to 80 Motion for partial summary judgment filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 01/22/2013)
110 Memorandum Opinion and Order: Defendants' Motion for Summary Judgment (Doc. 79 ) and the Motion to Exclude the Reports and Testimony of Dr. Kevin R. Murphy (Doc. 82 ) are GRANTED. The EEOC's Motion for Partial Summary Judgment (Doc. 80 ) and Motion to Exclude Defendant's Expert Michael G. Aamodt (Doc. 90 ) are DENIED as MOOT. Judge Patricia A. Gaughan on 1/28/13. (LC,S) (Entered: 01/28/2013)
111 Judgment Entry: This Court, having GRANTED Defendants' Motion for Summary Judgment (Doc. 79 ), hereby enters judgment in favor of defendants and against plaintiff. Judge Patricia A. Gaughan on 1/28/13. (LC,S) re 110 (Entered: 01/28/2013)
112 Notice of Change of Name and E−Mail Address for EEOC Counsel filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 02/06/2013)
113 STRICKEN, see doc 119 . Motion for reconsideration filed by Plaintiff Equal Employment Opportunity Commission. Related document(s) 110 , 111 . (Attachments: # 1 Exhibit 1 Edwards Woodforest photos)(Stern, Jeffrey) Modified text 2/27/2013 (C,KA). Modified text 3/8/2013 (C,KA). (Entered: 02/26/2013)
114 Affidavit/Declaration of Kevin Murphy, Ph.D. filed by Equal Employment Opportunity Commission. Related document(s) 113 . (Attachments: # 1 Exhibit 1 Antonivics and Knight 2009, # 2 Exhibit 2 Price and Wolfers 2007, # 3 Exhibit 3 Bar−haim et al 2006, # 4 Exhibit 4 Herman 2010, # 5 Exhibit 5 Harris 2002, # 6 Exhibit 6 Sohn et al 2006, # 7 Exhibit 7 Morgan Wei et al 2004, # 8 Exhibit 8 Elliott et al 2008, # 9 Exhibit 9 Wei et al 2006)(Stern, Jeffrey) (Entered: 02/26/2013)
115 Affidavit/Declaration of Jeffrey A. Stern re ECF Error Code 48 filed by Equal Employment Opportunity Commission. Related document(s) 113 , 114 . (Attachments: # 1 Exhibit A ECF Internal Error code 48 2_25_13, # 2 Exhibit B ECF offline notice 2_26_13, # 3 Exhibit C ECF online notice 2_26_13)(Stern, Jeffrey) (Entered: 02/26/2013)
116 Affidavit/Declaration of Kevin R. Murphy Ph.D Correcting Scrivener's Error filed by Equal Employment Opportunity Commission. Related document(s) 114 . (Stern, Jeffrey) (Entered: 03/04/2013)
117 Motion to strike Plaintiff's Motion for Reconsideration filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc. Related document(s) 113 . (Maatman, Gerald) Modified text 3/8/2013 (C,KA). (Entered: 03/07/2013)
118 Brief In Support Of Their Motion to Strike Plaintiff's Motion for Reconsideration filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc. Related document(s) 117 . (Maatman, Gerald) Modified text 3/8/2013 (C,KA). (Entered: 03/07/2013)

03/08/2013 03/18/2013
03/28/2013 04/04/2013 04/11/2013 04/12/2013 04/15/2013 04/16/2013 04/19/2013 05/06/2013 06/03/2013 03/17/2014 04/10/2014 04/11/2014

119 Order granting defendants' Motion 117 to strike plaintiff's motion 113 for reconsideration. Plaintiff may refile a motion for reconsideration that comports with the non−dispositive motion rules no later than March 18,2013. Judge Patricia A. Gaughan(C,KA) (Entered: 03/08/2013)
120 Revised Motion for reconsideration filed by Plaintiff Equal Employment Opportunity Commission. Related document(s) 111 , 110 . (Attachments: # 1 Exhibit Edwards/Woodforest Photos, # 2 Exhibit Murphy Declaration, 2/25/13, # 3 Exhibit Correction to Murphy Declaration/Scrivener's Error, 3/4/13, # 4 Exhibit 1 to Murphy Declaration, # 5 Exhibit 2 to Murphy Declaration, # 6 Exhibit 3 to Murphy Declaration, # 7 Exhibit 4 to Murphy Declaration, # 8 Exhibit 5 to Murphy Declaration, # 9 Exhibit 6 to Murphy Declaration, # 10 Exhibit 7 to Murphy Declaration, # 11 Exhibit 8 to Murphy Declaration, # 12 Exhibit 9 to Murphy Declaration)(Boehringer, Maria); by (s/Kate Northrup) Modified text on 3/21/2013 (B,B). (Entered: 03/18/2013)
121 NOTICE OF APPEAL to the Sixth Circuit Court of Appeals from 1/28/13 memo, opinion and judgment 110 and 111 filed by Equal Employment Opportunity Commission. (Boehringer, Maria) Fee not required. Modified text 3/29/2013 (C,KA). (Entered: 03/28/2013)
122 Response to 120 Revised Motion for reconsideration (Defendants' Response in Opposition to Plaintiff's Motion for Reconsideration) filed by Iowa College Acquisition Corporation, Kaplan Higher Education Corporation, Kaplan, Inc.. (Maatman, Gerald) (Entered: 04/04/2013)
123 Acknowledgment from the USCA for Sixth Circuit of receipt of 121 Notice of Appeal (USCA# 13−3408). Date filed in USCA 4/8/13. (H,SP) (Entered: 04/11/2013)
124 Unopposed Motion for extension of EEOC's Reply to Defendants' Opposition to Revised Motion for Reconsideration until up to and including April 19th filed by Plaintiff Equal Employment Opportunity Commission. Response due 4/22/2013. Related document(s) 122 . (Stern, Jeffrey) (Entered: 04/12/2013)
Order [non−document]: EEOC's Motion for Four−Day Extension of Time to File Its Reply to Defendants' Opposition to EEOC's Revised Motion for Reconsideration is Granted to 4/19/13. Judge Patricia A. Gaughan on 4/15/13. (LC,S) re 124 (Entered: 04/15/2013)
125 Appeal Order from USCA for the Sixth Circuit: Granting appellant's motion to hold case in abeyance re 121 Notice of Appeal (USCA# 13−3408). Date issued by USCA 4/15/13 (H,SP) (Entered: 04/16/2013)
126 Reply to response to 120 Revised Motion for reconsideration filed by Equal Employment Opportunity Commission. (Boehringer, Maria) (Entered: 04/19/2013)
127 Memorandum Opinion and Order: The EEOC's Revised Motion for Reconsideration and Incorporated Memorandum of Law is DENIED. Judge Patricia A. Gaughan on 5/6/13. (LC,S) re 120 (Entered: 05/06/2013)
128 FILING ERROR, DOCUMENT IS BLANK. Transcript Request by Equal Employment Opportunity Commission re 121 Notice of Appeal. Transcript is unnecessary, there were no hearings. (Boehringer, Maria) Modified on 6/6/2013 for filing error, NEF regenerated (H,SP). (Entered: 06/03/2013)
129 Supplement Refiled Exhibit 26−Saad Declaration & Expert Report to 81 Affidavit/Declaration, filed by All Defendants. Original exhibit incomplete. Related document(s) 81 . (Maatman, Gerald) Modified text on 3/18/2014 (M, S). (Entered: 03/17/2014)
130 Information copy of opinion from the USCA for the Sixth Circuit re 121 affirming district court's judgment (USCA #13−3408). Keith, Cook, and Kethledge, Circuit Judges. Date issued by USCA 4/9/14. This is not a mandate order. (Attachments: # 1 Judgment)(C,KA) (Entered: 04/10/2014)
131 Appeal Order from USCA for the Sixth Circuit: Granting the motion filed by Pacific Legal Foundation to allow Pacific Legal Foundation, Cato Institute, Center for Equal Opportunity, Competitive Enterprise Institute, and Project 21 to become an amicus

05/01/2014
05/01/2014 05/16/2014

curiae re 121 Notice of Appeal (USCA# 13−3408). Date issued by USCA 4/9/14 (H,SP) (Entered: 04/11/2014)
133 Bill of costs filed by All Defendants. (Attachments: # 1 Exhibit 1 − Witness List, # 2 Affidavit of Gerald L. Maatman Jr., # 3 Exhibit A − Addendum of Costs, # 4 Exhibit B − EEOC's First Notice of Deposition, # 5 Exhibit C − EEOC's Second Notice of Deposition, # 6 Exhibit D − EEOC's Third Notice of Deposition, # 7 Exhibit E − EEOC's Fourth Notice of Deposition, # 8 Exhibit F − Defendants' Notice of Nichols Deposition, # 9 Exhibit G − Defendants' Notice of 30(b)(6) Deposition, # 10 Exhibit H − Defendants' Notice of Murphy Deposition, # 11 Exhibit I − Defendants' Supoena to OPM)(Maatman, Gerald) (Entered: 05/01/2014)
134 True copy of mandate from the USCA for the Sixth Circuit: Affirming the District Court's judgment re 121 Notice of Appeal (USCA #13−3408). No costs. Date issued by USCA as mandate 5/1/14 (Related document(s) 130 ) (C,KA). Modified text on 5/6/2014 (H,SP). (Entered: 05/01/2014)
135 Costs Taxed against plaintiff in the amount of $17,683.90. Geri M. Smith, Clerk, by Kelly Copeland, Deputy Clerk. Related document(s) 133 . (C,KA) (Entered: 05/16/2014)