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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

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)

v.

)

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ROSWELL RADIO, INCORPORATED,

)

)

)

Defendant.

)

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

CIY
.-04-0729
COMPLAINT
JURY TRIAL DEMAND

NATURE OF THE ACTION

lCS K~IVI

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

Pregnancy Discrimination Act of 1978, and Title I of the Civil Rights Act of 1991 to correct

unlawful employmcnt (Jractices on the bases of sex, pregnancy and retaliation, and to provide

appropriate reliefto Lisa Lassa, Jcnnifer Fairclough and Tracye Nelson who were adversely affected

by such practices during their employment with Defendant Roswell Radio, Incorporated ("Roswell

Radio"). The Commission alleges that Lisa Lassa was subjected to harassment because of her

pregnancy and sex, including the owner of Roswell Radio's lewd or insulting remarks about her

pregnancy and sexually offensive comments or conduct, which created a hostile work environment

for her because of her sex, female. In addition, the Commission alleges that Ms. Lassa was forced

to resign her employment because of the pregnancy and sex discrimination and the employer's

failure to provide preventive or remedial relief. The Commission also alleges that Jenni fer

Fairclough and Tracye Nelson were subjceted to sexual harassment by top officials of Roswell

• •
Radio, including sufTering demeaning remarks regarding thcirclothes and intimate body parts as well as unwelcome sexual innuendo and invitations, which created a hostile work environmcnt for them because of their sex, female. The Commission alleges that Jennifer Fairclough was forced to resign her employment because of the sexual harassment and the cmployer's failure to provide preventive or remedial relief. Finally, the Commission alleges that Tracye Nelson was subjected to retaliatory discharge for opposing unlawful employment practices.
JURISDICTION AND VENUE I. 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 Section 706(/)( 1) and (3) ofTitlc VII of the Civil Rights Act of 1964, as amended 42 U.S.c. § 2000e-5 (/)(1) and(3) ("Title VII") and Section 102 of the Civil Rights Act of1991, 42 U.S.c. ~ 1981a.
The employment practices allcged to be unlawful were commilted within the jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(1){ 1) and (3) ofTitle VII, 42 U.S.C. § 2000e-5(f)(I) and (3). 4. At all rclcvant times, Defendant (the "Employer") has continuously been a New Mexico corporation doing business in the State of New Mexico, including at least the cities of Roswell and Tucumcari, and has continuously had at least 15 employees.
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5. At all relevant times, Defendant Employer has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of Section 70 I(h). (g) and (h) of TitIe VIT, 42 U.S.C. § 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the instituti6il of this lawsuit, Lisa Lassa, lenni fer Fairclough, and Tracye Nelson filed charges with the Commission alleging violations of Title VII hy Roswell Radio. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least July, 2001, Defendant Employer has engaged in unlawful employmcnt practices at its Roswell. New Mexico facility in violation of Section 703(a) of Title VII. 42 U.S.c. §§ 2000e-2(a) because of sex. These practices include:
a) the harassment of.Jennifer Fairclough and Tracye Nelson, which created a hostile work environment, because of their sex, female; b) the constructive discharge of Jennifer Fairclough as a result of Defendant Employer's discrimination against her because of her sex, female. S. Since at least December, 2002, Defendant Employer has engaged III unlawful employment practices at its Roswell, New Mexico facility in violation of Section 703(a) of Title VII, 42 U.S.c. § 2000c-2(a) and Section 701 (k), 42 U.S.c.§ 2000e(k) (the Pregnancy Discrimination Act of 1978) because of sex and pregnancy. These practices include: a) the pregnancy and sex harassment of Lisa Lassa, which created a hostile work environment for her because of her sex, female; and b) the constructive dischargc of Lisa Lassa asa result of Defendant Employer's
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pregnancy and sex harassment toward her because of her sex, female. 9. Since at least September 2003, Roswell Radio has engaged in unlawful retaliatory employment practices at its Roswell, New Mexico facility in violation ofSection 704(a) ofTitle VII. 42 U.S.c. §§ 2000e-3(a). These retaliatory practices include:
a) thc retaliatory discharge ofTracye Nelson after she expressed opposition to and made complaints about unlawful employment practices. 10. The effect of the practices complained of in paragraphs 7 and 8 above has been to deprive Lisa Lassa. Jennifer Fairclough, and Tracye Nelson of equal employment opportunities and otherwise adverscly affect their status as employees because of their sex, female and/or pregnancy. 11. The effect of the practices complained of in paragraph 9 above has been to deprive Tracye Nelson of equal empiO}11lent opportunities and otherwise adversely affect her status as an employee because of her opposition to unlawful employment practices. 12. The unlawful employment practices complained of in paragraphs 7. S, and 9 above were intentional. 13. The unlawful employment practices complained of in paragraphs 7, 8, and 9 above were done with malice and/or with reckless indifference to·the federally protected rights of Lisa Lassa, Jennifer Fairclough, and Tracye Nelson.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests thai this Court: A. Grant a pemlanent injunction enjoining Defendant Employer, its officers, successors. assigns and all persons in active concert or participation with.it, from engaging in harassment of
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• •
employees because ofsex and/or pregnancy and any other employment practice which discriminatcs on the basis of sex.
B. Grant a permanent injunction enjoining Defendant Employer, its officers. successors. assigns and all persons in active concert or participation with it, from engaging in any CmpIO)111ent practice which discriminates or retaliates against any individual because of the individual's opposition to perceived unlawful employment practices and/orbecause the individual tiled it charge, testified, assisted, or participated in an investigation or proceeding under Title VIT.
C. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for women, pregnant women and for those who oppose perceived unlawful employment practices and/or file charges, testify, assist or participate in an investigation or proceeding under Title VII, and which eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant Employer to make whole Lisa Lassa, Jennifer Fairclough, and Tracye Nelson 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 reinstatement ofthese women or front pay in lieu of reinstatement.
E. Order Defendant Employer to make whole Lisa Lassa, Jennifer Fairclough, and Tracye Nelson by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 7, 8 and 9 above, including job search expenses, medical expenses, and other pecuniary losses, in amounts to be detemlined at trial.
F. Order Defendant Employer to make whole Lisa Lassa, Jennifer Fairclough, and
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. ' ...;.

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Tracye Nelson by providing compensation for past and future nonpecuniary losses resulting from

the unlawful practices complained of in paragraphs 7, 8, mid 9 above, including but not limited to,

emotional pain, suffering, inconvenience, mental anguish, humiliation, loss ofenjoymcnt o fli fe, and

other nonpecuniary losses, in amounts to be determined at trial.

G. Order Defendant Employer to pay Lisa Lassa, Jennifer Fairclough, and Tracye

Nc1sonpunitive damagcs for its malicious and/orrecklcss conduct described in paragraphs 7, 8, and

9 above, in amounts to be determined at trial.

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

interest.

l.

Award the Commission its costs in this action.

JURY TRIAL DEMANDED

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

DATED this 291h day of June 2004.

Respectfully submitted,

ERIC S. DREIBAND General Counsel

JAMES L. LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 180 I L Street, NW Washington, D.C. 20507

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.•. ,~ ':""!:

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MARY )0 O'NEILL Regional Attorney
C. EMANUEL SMITH Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Phoenix District Office 3300 North Central Avenue Suite 690
:;z:;;:')
LORETTA MEDINA Senior Trial Attorney
VERONICA A. MOLINA Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Albuquerque Area Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5230
Attorneys for Plainti ff

·7

 
 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXIC<f- U

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. ROSWELL RADIO, INCORPORATED,
Defendant.

CIV-04-0729 BB/LCS

DISCOVERY AND CONFIDENTIALITY ORDER

THIS MATTER came before the Court on the agreement of the parties reached during the settlement conference held before the Court on March 15, 2005 in Roswell, New Mexico. The Court, having considered the arguments of counsel, the evidence and the pleadings, and having been fully advised hereby FINDS AND ORDERS as follows:
1. At the settlement conference the Defendant, John Dunn and Penny Dunn made a settlement offer that will remain open until the close of business on May 10, 2005. Pursuant to the offer, the parties have agreed to conduct certain limited financial discovery during the pendency ofthe offer, said discovery to consist ofthe depositions of John Dunn, Defendant's sole shareholder, and Kelly McFarland, an accountant retained by Defendant, and the production of Defendant's profit and loss statements and balance statements for 2002 through 2004, and the Defendant's, John Dunn's and Penny Dunn's income tax returns for the years 2002 and 2003 and other relevant financial records subpoenaed (hereafter the "Settlement Discovery"). The Settlement Discovery will be strictly limited to

the financial conditions of Defendant, John Dunn and Penny Dunn, and will not be permitted into any other matters, including issues of liability or non-monetary relief. In addition, discovery into any aspects of Mrs. Dunn's daughter's trust is not permitted.
2. The Court takes judicial notice of the fact that there is pending in the Fifth Judicial District Court, Chaves County, New Mexico a companion case entitled Jennifer Fairclough and Usa Lassa v. Roswell Radio, Inc., John Dunn, Individually and as Owner of Roswell Radio, Inc., and Penny Dunn, Individually and as Management of Roswell Radio, Inc., CIV No. 2004-262 WPL (the "State Action"), whose plaintiffs are Claimants in the present matter and are represented by Tim White, Esq. and Denise Torres, Esq., respectively. The defendants in the State Action have joined in Defendant's settlement offer. The parties to the State Action, through their attorneys, may participate in the Settlement Discovery.
3. The parties and their attorneys in the State Action, as well as the parties and their attorneys in this action, have agreed to abide by the terms of this Order regarding the Settlement Discovery, to-wit:
a. the information revealed in the Settlement Discovery shall only be used for the purpose of conducting litigation in this lawsuit and not for any business or other purpose;
b. documents produced by Defendants shall not be shown to Plaintiffs Claimants or to the plaintiffs in the State Action, but shall be viewed solely by counsel and counsel's employees including experts. Counsel may reveal
2

to their clients the general significance of the documents produced, but not

the specific financial terms, numbers or contents;

c. all parties shall safeguard and otherwise not suffer or permit disclosure of

the information disclosed;

d.

at the conclusion of these proceedings and upon the request of Defendant,

the documents and any copies thereof produced shall be promptly returned

to the Defendant; and

e. the parties and Claimants are ordered not to contact each other or each

others' family members and Claimants are ordered not to contact any

employees of Roswell Radio, Inc. during business hours, at any time during

the pendency of this action.

4. This Order shall be binding upon and inure to the benefit of the parties hereto

and their respective successors, heirs, assigns, and personal and legal representatives.

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Prepared By:
ENSLEY, SHANOR & MARTIN, L.L.P.
By: -1.,-:VI~~:"!-')'~~~=­ Albert L. Pitts James M. Hudson Derek L. Brooks P.O. Box 10 Roswell, New Mexico 88202-0010 (505) 622.-Q510 (505) 623-9332 FAX
Attorneys for Defendant
APPROVED AS TO FORM & CONTENT:
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
By: Approved via e-mail March 23, 2005 Loretta Medina, Esq. Senior Trial Attorney Albuquerque Area Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5230
Attorney for Plaintiff
MADISON, HARBOUR, MROZ & BRENNAN, P.A.
By: Approved telephonically March 28, 2005 Timothy L. White P.O. Box 25467 Albuquerque, N.M. 87125-5467 (505) 242-2177
Attorneys for Jennifer Fairclough
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SAENZ & TORRES By: Approved telephonically March 28. 2005
Denise M. Torres 333 S. Campo Street Las Cruces, N.M. 88001-3511 (505) 526-3333 Attorneys for Lisa Lassa
5

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

vs.

No. CIV 04-729 BB/LCS

ROSWELL RADIO, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER came before the Court on Defendant’s Motion for Protective Order

(Doc. 23) filed January 10, 2005. The Motion is fully briefed (Docs. 24, 28) and no oral

argument is necessary. The Court, having reviewed the Motion, Memoranda, exhibits, and

relevant authorities, finds that the Motion should be GRANTED IN PART.

I. BACKGROUND

Plaintiff’s lawsuit arises out of allegations by certain former employees of Defendant who

claim they were subjected to unlawful employment practices on the bases of sex, pregnancy, and

retaliation. (Doc. 1.) Two of the former employees have sued Defendant in their individual

capacities in the Fifth Judicial District Court of the State of New Mexico, a case which is ongoing.

(See Doc. 24 at 7.) The Equal Employment Opportunity Commission (EEOC) brought this

federal suit, seeking a permanent injunction enjoining Defendant and others from engaging in

harassment, discrimination, or retaliation; an order for Defendant to institute programs and

policies that provide equal employment opportunities for women; backpay, punitive damages, and

other compensation for the affected employees; and other relief as the Court finds necessary and

proper. (Doc. 1.) Plaintiff submitted its first request for production of documents and first set of interrogatories in December, 2004. (See Doc. 19.) In April, 2005, it appeared that the parties were attempting to reach a settlement agreement; accordingly, District Judge Bruce D. Black stayed discovery and motions, including this Motion for Protective Order, pending negotiations. (Doc. 47.) The parties were ultimately unable to reach mutually acceptable settlement terms, so it is once again necessary to take up the matters in the instant Motion. (Doc. 50.)
II. STANDARD FOR GRANTING A MOTION FOR PROTECTIVE ORDER Any matter relevant to any party’s claim or defense may be subject to discovery. See FED. R. CIV. P. 26(b)(1); Velasquez v. Frontier Med. Inc., 229 F.R.D. 197, 199 (D.N.M. 2005). “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1) (quoted in Velasquez, 229 F.R.D. at 199-200). The Federal Rules of Civil Procedure (FRCP) allow a person or party from whom discovery is being sought to file a motion for protective order. FED. R. CIV. P. 26(c). “The Court may grant a protective order when it is necessary to ‘protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’” Velasquez, 229 F.R.D. at 200 (quoting FED. R. CIV. P. 26(c)). “The party seeking a protective order has the burden to show good cause for it.” Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D. 533, 534 (D. Kan. 2003) (citation omitted); see also Velasquez, 229 F.R.D. at 200 (citation omitted). To demonstrate good cause, the party must make “‘a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.’” Aikens, 217 F.R.D. at 534 (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981) (internal quotation marks and citation omitted in original)); see also
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Velasquez, 229 F.R.D. at 200. It is within the court’s discretion whether to issue a protective order. Aikens, 217 F.R.D. at 534.
III. ANALYSIS RRI contends that the information sought by the EEOC is irrelevant and immaterial, confidential, calculated to harass and oppress or cause undue burden, and not reasonably calculated to lead to the discovery of admissible evidence, and that therefore the Court should issue a protective order. (Doc. 24 at 2-3.) But RRI has not met its burden under FRCP 26(c). The EEOC “need only show that the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Velasquez, 229 F.R.D. at 200. Once the EEOC meets its burden, RRI must show good cause for entering a protective order. Id. The EEOC has met its minimal showing; RRI, for the most part, has not met its burden. Id. A. The Court Will Not Enter a Protective Order on the Basis that the Requests
are Irrelevant or Immaterial. Defendant argues that it is entitled to a protective order because Plaintiff’s inquiries regarding financial data and employee lists are irrelevant or immaterial. (Doc. 24 at 3-6.) I disagree. As Plaintiff points out, RRI’s gross revenues are relevant because at least two of the former employees received or were eligible to receive commissions based on the gross revenues. (Doc. 28 at 4.) Consequently, Plaintiff’s requests did not relate to the issue of punitive damages as Defendant assumed. (Doc. 24 at 4, Doc. 28 at 4.) Additionally, the employee list Plaintiff seeks is relevant as a source of information concerning potential witnesses. (Doc. 28 at 6.) Regardless of whether the information sought is irrelevant or immaterial, a party is entitled to a protective order only if it can establish a basis that is within one of the Rule’s enumerated
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categories. Aikens, 217 F.R.D. at 534. “In other words, the protective order must be necessary to protect the party from ‘annoyance, embarrassment, oppression[,] or undue burden or expense.’” Id. (quoting FED. R. CIV. P. 26(c)). Conclusory statements that requested discovery is irrelevant or immaterial do not suffice to establish good cause for a protective order. See Velasquez, 229 F.R.D. at 200. Therefore, I decline to enter a protective order on either basis.
B. The Court Will Not Enter a Protective Order on the Basis that the Information Sought is Confidential.
Defendant also objects to releasing its financial data and employee lists because the information is private and confidential. (Doc. 24 at 4-6.) But an objection based on confidentiality, like one based on relevancy, fails to meet the Rule’s threshold requirement of demonstrating good cause. Velasquez, 229 F.R.D. at 200. Relevancy and confidentiality are standard discovery objections; “the Court may only rule on the validity of such [objections] in the context of a motion to compel.” Aikens, 217 F.R.D. at 535; Velasquez, 229 F.R.D. at 200. Confidentiality “is not a basis upon which the Court may enter a Rule 26(c) protective order.” Aikens, 217 F.R.D. at 535. Consequently, I decline to enter a protective order to the extent it is based on arguments that the information sought is private or confidential.
C. The Court Will Not Enter a Protective Order on the Basis that the Requests Are Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence.
Defendant presents vague allegations that Plaintiff’s requests for information are not reasonably calculated to lead to the discovery of admissible evidence. (Doc. 24 at 3, 9.) While Defendant fails to address this argument in the substantive portion of its Memorandum, it would
4

nevertheless fail to be a proper argument in the context of a protective order. Aikens, 217 F.R.D. at 534-35. As with RRI’s arguments regarding relevancy and confidentiality, an objection based on whether a request is reasonably calculated to lead to the discovery of admissible evidence is a discovery objection properly raised in a motion to compel, not in a motion for a protective order. Id. Thus, I will not enter a protective order on this basis.
D. The Court Will Grant in Part RRI's Motion for Protective Order Based on Undue Burden.
1. Undue Burden as a Basis for Issuing a Protective Order “Rule 26(c) expressly provides that a protective order may be entered to protect a party from ‘undue burden or expense.’” Aikens, 217 F.R.D. at 535 (quoting FED. R. CIV. P. 26(c)). Unlike Defendant’s prior arguments, “this is a valid basis upon which Defendant may request a protective order.” Id. It is therefore necessary to determine whether RRI has met its burden of demonstrating that gathering the requested documents would be unduly burdensome. Id. 2. The Discovery at Issue RRI summarily objects to Plaintiff’s inquiries on the basis of undue burden. (Doc. 24 at 3, 9.) Plaintiff’s Interrogatory number 3 requests: “State the total gross revenues earned by Roswell Radio in each year for the years 2003 and 2004.” (Doc. 24, Ex. C at 5.) Plaintiff’s Request for Production number 2 asks for “[a]ll documents, including but not limited to, financial statements, income tax returns, or other documents which discuss or describe the revenues earned by Roswell Radio for each year in 2001, 2002, 2003 and 2004.” (Doc. 24, Ex. D at 4.) Plaintiff’s Request for Production number 18 asks for “[a]ll documents or lists that contain the name, social security number, date of birth, address, date of hire, date of termination and job title of each employee
5

employed by Roswell Radio from January 2001 to present.” (Doc. 24, Ex. D at 9.) 3. Standard for Establishing “Undue Burden” A party seeking a protective order must make “a particular and specific demonstration of
fact, as distinguished from stereotyped and conclusory statements.” Aikens, 217 F.R.D. at 534 (internal quotation marks and citation omitted). Typically, the party asking for such an order “must submit affidavits or other detailed explanation as to the nature and extent of the claimed burden or expense.” Aikens, 217 F.R.D. at 537 (citing White v. Wirtz, 402 F.2d 145, 148 (10th Cir. 1968); Sentry Ins. v. Shivers, 164 F.R.D. 255, 257 (D. Kan. 1996)).
4. RRI Has Not Demonstrated Undue Burden Rather than demonstrating specific facts to support its position that gathering the requested data would impose an undue burden, RRI relies on conclusory statements; they are not enough. See Velasquez, 229 F.R.D. at 200. Defendant has submitted no affidavits or other evidentiary documentation to give the Court any idea of the scope of Plaintiff’s requests. All Defendant asserts is that Plaintiff asks for a large amount of records and that production will have to be updated at or prior to trial. (Doc. 24 at 5.) Without some supplemental support establishing the number of documents requested, the estimated cost of reproducing them, or the hours involved in gathering and reviewing them, this Court “cannot discern what, if any, specific injury [RRI] will suffer by answering [the EEOC’s] requests.” Velasquez, 229 F.R.D. at 200. The Court cannot agree that RRI’s mere conclusory assertions satisfy its burden “to make a particular and specific demonstration of fact in support of its request for protective order.” Aikens, 217 F.R.D. at 537 (internal quotation marks and citation omitted). 5. The Requests May Be Unduly Burdensome on Their Face
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“Defendant’s failure to meet its evidentiary burden is not necessarily fatal to its claim that the requests are unduly burdensome.” Id. at 537-38. I agree with the approach taken in Aikens, which followed a court-fashioned “exception to the rule requiring evidentiary support, which applies when the discovery request is unduly burdensome on its face.” Id. at 538 (citations omitted). In Aikens, the court noted that on numerous occasions it has held “that a request or interrogatory is unduly burdensome on its face if it uses the omnibus term ‘relating to’or ‘regarding’with respect to a general category or group of documents.” Id. (citations omitted). The court reasoned that such broad language makes it difficult to decide what documents might possibly fall within the scope of the request. Id.
In the present case, Plaintiff’s request number two asks for “[a]ll documents, including but not limited to, financial statements, income tax returns, or other documents which discuss or describe the revenues earned by” RRI for the years 2001 through 2004 inclusive. (Doc. 24, Ex. D at 4 (emphasis added).) Request number eighteen asks for “[a]ll documents or lists that contain” an expansive amount of employee information. (Id. at 9 (emphasis added).) Such allinclusive requests seem to this Court to be “so broad and open-ended that Defendant could not [possibly] fully determine--without undue burden--which documents would be responsive.” Aikens, 217 F.R.D. at 538. The terms “all documents or lists,” “including but not limited to,” and “which discuss or describe,” give little guidance as to the outer boundaries of Plaintiff’s requests, nor do they even limit the categories of documents Defendant would have to sort through to find every piece of information the EEOC is seeking. See id.
The Aikens court goes on to explain that although a request might be unduly burdensome on its face, the Defendant must still “respond to the extent the request is not objectionable.” Id.
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at 538-39 (citations omitted). So that I may enter the appropriate order, I have examined the record and determined the portions of the Plaintiff’s requests which are reasonably answerable. Id. at 539.
Here, both an earlier Discovery and Confidentiality Order and the EEOC’s responsive brief give enough guidance that I may enter an appropriate order. (Doc. 43 at 1-2, Doc. 28.) Plaintiff explains that it needs the requested financial data to calculate lost wages for employees who received commission based on RRI’s gross revenue. (Doc. 28 at 4.) In the Discovery and Confidentiality Order entered on March 29, 2005 during settlement negotiations, this Court noted that the parties “have agreed to conduct certain limited financial discovery during the pendency of the offer . . . .” (Doc. 43 at 1.) Included in the discovery was RRI’s “profit and loss statements and balance statements for 2002 through 2004 . . . and other relevant financial records subpoenaed.” (Id.) Plaintiff also asserts that it needs the identifying information for RRI’s employees to find potential witnesses. (Doc. 28 at 6.) I agree that the EEOC’s requests for financial and employee information are not unduly burdensome to the extent that the documents will be used to calculate lost wages and research potential witnesses, and I will grant in part and deny in part the motion for protective order based on RRI’s unduly burdensome arguments. See Aikens, 217 F.R.D. at 540.
6. Scope of the Protective Order The Court first notes that the scope of discovery in an EEOC suit is extensive. Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir. 1975). Accordingly, the Court will enter a protective order limiting the EEOC requests as follows: • Plaintiff’s Requests and Interrogatories seeking information already approved of in the
8

March 29, 2005 Discovery and Confidentiality Order are not unduly burdensome. (Doc. 43.) • Plaintiff’s Interrogatory number three is not unduly burdensome. • Plaintiff’s Request for Production number two that asks RRI to produce “[a]ll documents, including but not limited to, financial statements, income tax returns, or other documents which discuss or describe the revenues earned by Roswell Radio for each year in 2001, 2002, 2003 and 2004” is not unduly burdensome to the extent that it is not duplicative of information provided pursuant to the Discovery and Confidentiality Order (Doc. 43), and to the extent that it is limited to profit and loss statements, balance sheets, income tax returns, or other relevant financial records, which reveal or show the gross revenues of RRI for purposes of calculating commissions earnings and lost compensation. • Plaintiff’s Request for Production number eighteen, asking for “[a]ll documents or lists that contain the name, social security number, date of birth, address, date of hire, date of termination and job title of each employee employed by Roswell Radio from January 2001 to present” is not unduly burdensome to the extent that it asks Defendant to produce such information in a nonduplicative manner. In other words, once the Defendant has produced the data requested (that is, the name, social security number, date of birth, etc., of their employees), Defendant is relieved from further compliance with this request for production. • Subject to a confidentiality order (see below), Plaintiff’s Requests for Production five and six are not unduly burdensome, as Defendant noted in its Memorandum. (Doc. 24 at 6.) • Defendant shall respond to the aforesaid interrogatories and requests no later than
9

September 30, 2005. Counsel are to meet and confer and provide this Court with an agreed upon confidentiality order that limits the use of information revealed to purposes of this federal lawsuit, that forbids the parties from showing the documents produced by Defendants to the Claimants or to the plaintiffs or attorneys in the state action, allowing only counsel and counsel’s employees, including experts, to view the documents, and any other confidentiality provision the parties may wish to include. If the parties are unable to agree on the form of such order, each party is to submit to me, no later than September 30, 2005, that party’s suggested form of order, and the Court will enter its own confidentiality order. IV. CONCLUSION The Court declines to grant the Motion for Protective Order on the grounds that the inquiries are irrelevant, immaterial, ask for confidential information, or not reasonably calculated to lead to the discovery of admissible evidence. Under FRCP 26(c), none of the forementioned bases are appropriate reasons to issue a protective order. See Aikens, 217 F.R.D. at 541. FRCP 26(c) does allow the Court to issue a protective order because the inquiries are unduly burdensome; and while RRI failed to meet its burden of establishing undue burden, the Court does find that two of Plaintiff’s requests are unduly burdensome on their face. Id. Accordingly, the Court holds that a protective order should issue to limit Plaintiff’s requests as described herein, Defendant is to answer the inquiries, and the parties are to work together to provide the Court with an agreed confidentiality order. Further, because the state litigation will clearly not dispose of the claims in this federal lawsuit, and because the confidentiality order should alleviate Defendant’s concerns about any
10

misuse of this Court, I decline to address Defendant’s argument based on the Colorado River abstention doctrine.1 See Lumen Constr., Inc. v. Brant Constr. Co., 780 F.2d 691, 695 (7th Cir. 1985); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
IT IS THEREFORE ORDERED that Defendant’s Motion for Protective Order is denied in part and granted in part as set forth herein.
IT IS FURTHER ORDERED that Defendant shall, by September 30, 2005, respond to the aforesaid interrogatories and requests as limited herein, and Counsel for the parties shall submit to this Court a joint confidentiality order by said date as described above.
IT IS SO ORDERED.
_____________________________________ LESLIE C. SMITH UNITED STAT ES MAGISTRATE JUDGE
1Moreover, the scope of discovery is different in New Mexico state courts. See Rule 1026 N.M.R.A. (2005).
11

 
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO ArR 1 3 2D06

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

rlaintitI

)

)

v.

)

)

ROSWELL RADIO, INCORPORATED,

)

)

)

Defendant.

)

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

Mr"\·"j"l·I·uI'Ic_~'""\l J • [J.'(r''\"lv1A N
CLl::HK No. CV-04-729 BB/LCS
CONSENT DECREE

The United States Equal Employment Opportunity Commission (the Commission or EEOC)

tiled this action against Roswell Radio. Inc. ("Roswell Radio" or "defendant") to cntllrcc Title VII
* of the Civil Rights Act of 1964, as amended, 41 U.S.c. 2000e et seq. (Title VII), the Pregnancy * Discrimination Act of I978, and the Civil Right Act of 1991. 42 U.S.c., 1981a. In the Complaint

the Commission alleged that defendant subjected Lisa Lassa to harassment hecause ot' her

pregnancy and sex, which fllrced her to resign. The Commission also alleged that Jennifer

Fairclough and Tracye Nelson were subjected to sexual harassment, which created a hostile work

environment for them because of their sex, female. The Commission alleged that Jennifer

Fairclough was forced to resign her employment because of the sexual harassment and the

employer's failure to provide preventive or remedial relief and that Ms. Nelson was subjected to

retaliatory discharge.

This Consent Decree docs not constitute an admission of liability hy Roswell Radio.

Roswt:ll Radio expressly denies that it discriminated or retaliated against any party on any hasis

under Title VII.

· '

The parties do not object to the jurisdiction of the Court over this action and waive their

rights to a hearing and the entry of findings of fact and conclusions of law.

It is hereby ORDERED, ADJUDGED AND DECREED:

I. This decree resolves all claims of the Commission against defendant on behalfof

Tracye Nelson, Lisa Lassa and Jennifer Fairclough arising out of the issues in this lawsuit.

IJliJUNCTION

2. Defendant, their owners, stockholders. managers, agents, ofllcers. employees. successors

and assigns and all persons in active concert or participation with them, are pennanently enjoined

tl)r the duration of the decree from discriminating against any employee because of his or hcr sex.

including subjecting employees or individuals to sexual harassment and/or pregnancy harassment.

This injunction will remain in effect for the duration of the decree at any facility opO!ratcd by

defendant in the state of New Mexico.

3.

Defendant, their owners, stockholders, managers, agents, otlicers. employees.

successors and assigns and all persons in active concert or participation with them, are pennanently

enjoined for the duration of the decree rrom retaliating against any employee or individual because

the employee or individual has (a) opposed practices made unlawful by Title VII or a state equal

employment opportunity statute, (b) tiled a charge of discrimination, including sexual harassment,

(c) assisted or participated in the tiling of a charge of discrimination, including sexual harassment.

(d) assisted or participated in an investigation or proceeding under Title VII or a state equal

employment opportunity statute, or (e) tiles an internal complaint ofdiscrimination. This injunction

will remain in effect tor the duration of the decree at any facility operated by defendant in the state

of New Mexico.

2

RELIEF TO CHARGING PARTIES 4. In accordancc with this decree, dcfendant shall pay the total amount oftwLl hundred eighty thousand and zero cents ($280,000.00). The settlement amount shall be paid as designated in Exhibit B. Roswell Radio agreed to make the settlement payment to avoid the CLlsts and risks of continued litigation. and not as an admission of any legal or monetary liability as to any claims in these proceedings or in related proceedings pending in New Mexico State District Court. 5. Defendant shall pay the settlement amount on or before thirty (30) days from March 7, 2006. Payment to Jennifer Fairclough and Lisa Lassa shall be c/o their attorneys. Payment to Tracye Nelson shall be via business check made payable to Ms. Nelson and mailed directly to her at the address provided by the EEOC. Within five (5) days of issuance of the checks, defendant shall submit a copy of the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque Area Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102-2189. 6. In response to any employment inquiries or reference checks concerning Tracy.: Nelson, Lisa Lassa and lenni fer Fairclough, defendant shall provide only their dates of employment, each position held, job duties and salary. This provision shall remain in force for so long as these women use Roswell Radio as a reference and is not limited to the three (3) year duration of this decree. 7. Defendant shall not take any action against any individual in retaliation for tiling a charge of employment discrimination or for participating, assisting or testifying in this action.

DEFENDANT'S CORRECTIVE POLICIES AND PRACTICES 8. Defendant shall institute and carry out policies and practices that will provide a work environment free trom sex and pregnancy discrimination, including policks, proccdures and practices to prevent sexual harassment and pregnancy harassment of their employees and other individuals. and that allow employees and other individuals to raise concerns or complaints about matters made unlawful by Title Vll, whether alleged, perceived or actual without retaliation. To assist detendant in its etlort to provide a work environment tree of sex discrimination, sexual harassment and retaliation. defendant shall take the actions provided tor in Paragraphs 9,10. II, 13 and 14. 9. Within sixty (60) days of the entry of this decree, defendant shall review any existing policies on sex discrimination, including sexual harassment and pregnancy harassment, and make any changes necessary so that their policies and procedures comply with Title VII. Should detendant not currently have an existing policy prohibiting sexual harassment or pregnancy harassmcnt and/or a grievance procedure. defendant shall implement an eftective antiharassment policy and procedure to receive employee complaints of harassment based on sex or pregnancy. Defendant shall ensure their written policy includes a statement that employees arc encouraged to complain directly to EEOC or any state equal opportunity agency. After reviewing and making any nccessary revisions to its policies, dctendant shall distribute the revised sexual harassment and pregnancy harassment policies and complaint procedures to each of its current full and part-time employees, and to each new employee hired for the duration of this decree. The policy and proccdure statements that are provided to defendant's employees should be dcsigned to prcsent easily understood, convenient, consistent, confidential and reliable
4

procedures for reporting incidents of sexual harassnlent, pregnancy harassment and rctaliatillll in defendant's New Mexico facilities. These procedures, at a minimum, shall include provisions incorporating the following:
A. Within thirty (30) days of entry of this decree and for the duration of this decree, defendant shall designate at Icast onc employcc in a supcrvisory or managerial position at each New Mexico facility to serve as investigative officer for sexual harassment or pregnancy harassment issucs;
B. Within thirty (30) days of entry of this decree and tor the duration of this decree. the name, responsibilities, work location, and telephone number of the investigative onicer will routinely and continuously he posted and provided to al\ employees so that an employee seeking such name can enjoy anonymity and remain inconspicuous to other employees;
C. For the duration of this decrce, complaints of sexual harassment or retaliation will be accepted in writing or orally and all complaints will be taken seriously and investigated;
D. Only those who have an immediate need to know, including the investigative ofticer(s), the alleged target of harassment or retaliation, the alleged harasser(s) or rctaliator(s) and any witnesses, may find out the identity of the complainant;
E. During an investigation of a sexual harassment complaint or pregnancy harassment complaint of an employee, the investigative otlicer shall endeavor to iriu'nediately interview all affected employees and potential witnesses to the alleged harassment;
5

F. All parties contacted in the course of an investigation will be advised that any

retaliation or reprisal against an individual who is an alleged target of harassment

or retaliation, who has made a complaint, or who has provided evidence in

connection with a complaint will not be tolerated and could result in disciplinary

. action;

G. Each investigative officer will receive thorough and appropriate training about

sexual harassment and will have the responsibility tor expeditiously investigating

all complaints. This training shall consist of at least two hours in addition to that

provided under paragraph I I of this decree;

H. The investigative otlicer will recommend remedial measures, if appropriate,

based upon the results of the investigation, and defendant will promptly consider

and act upon such recommendation;

I.

The investigative oflicer will maintain a file on the original complaint(s) and any

t(lllow-up invcstigation;

J.

Defendants owners, stockholders, managers, officials, agents or employees who

engage in sexual harassment, pregnancy harassment or retaliation; who fail to

cooperate with company-sponsored investigations of sexual harassment,

pregnancy harassment or retaliation; or who refuse to implement remedial

measures will be advised that they may be sanctioned severely by loss of income,

suspension Of dismissal.

10. Defendant shall post within thirty (30) days of the entry of this consent decree,

and continuously for a period of thirty six (36) months, in prominent places frequented by

employees of defendant's New Mexico tacilities, the Notice attached to this decree as Exhibit A.

This Notice shall be the same type, stylc and size as in Exhibit A.

6

II. Defendant shall provide training on sex discrimination. sexual harassment. prt'gnancy harassment and retaliation according to the tollowing tcnns:
A. Defendant shall provide at least three training sessions during the term of this decree. All owners. stockholders, managers, supervisors and employees, including Penny Dunn ifshe is employed, at New Mexico facilities owned or operated by defendant. shall attend the training. Duplicative sessions may be held to accommodate stafting needs. Defendant shall be responsihle for all costs associated with this training.
B. During the tirst year of the decree, the training shall be conducted within ninety (90) days of the entry of this decree. Additional training shall he conducted at least once each remaining year of this Decree.
C. Defendant shall select a qualitied trainer and shall suhmit the trainer's name. resume, training agenda and the date(s) of the proposed training to the Regional Attorney of the Albuquerque Area Office of the Equal Employment Opportunity Commission within torty-tive (45) days of the entry of this decree. During the second and third years of the decree. the ahove infonnation shall he suhmitted to the Regional Attorney at least sixty (60) days prior to the seminar-training session. The Commission shall have thirty days from the datc of receipt of the intonnation described above to accept or reject thc proposed consultant/lecturer and/or the contents of the seminar. In the event the Commission does not approve dcfimdanfs designated consultant/lecturer, the Commission shall designate the consultant/ lecturer at a cost not to exceed SI000.00 per seminar-training session which shall be paid by defendant.
D. The training shall include a minimum of two hours of instruction. All pcrsonnel.
7

designated in Paragraph A shall both register and attend the training. The registry of attendance shall be retained by defendant at least for the duration of the decree. E. The training, at a minium shall include the subjects ot: what constitutes sex discrimination. including sexual harassment, pregnancy harassment and retaliation: that sex discrimination in the hiring, firing. compensation. assignmcnt or other terms, conditions or privileges of employment and retaliation violates Title VII; how to prevent sex discrimination and retaliation; how to provide a work environment free from sex discrimination. sexual harassment, pregnancy harassment, and retaliation; and to whom and by what means employees may complain if they feci they have been subjected to sex discrimination, sexual harassment, pregnancy harassment or retaliation in the workplace. F. Immediately following the training sessions, defendant's designated human resources otlicial shall speak to the employees about: (I) potential discipline that can be taken against owners, stockholders, supervisors. managers and employees who commit acts of sex discrimination or retaliation or who allow sex discrimination or retaliation to occur in the workplace; (2) the importance of maintaining an environment free of sex discrimination and retaliation; and (3) the employer's policies regarding sex disl:rimination, sexual harassment, pregnancy harassment, and retaliation. This time shall not be counted toward the two-hour minimum training required in paragraph II.D. G. For the duration of this decree, at or around the time of hire, employees hired after the annual training is presented, shall view a video tape of the training and/or a professional training tape which covers the topics set forth in paragraph II.E.
8

shall be given any written material disseminated at the training. 12. The Commission, at its discretion. may designate Commission representatives to attend and participate in the training sessions described above. 13. Within ninety (90) days of the entry of this decree. defendant shall require that John Dunn attcnd at least six individual counseling sessions each with a qualified counselor. therapist or psychologist to acquaint him with the eflects of actual and/or perceived sexual harassment upon the victim. Detendant shall be responsible for paying for such counseling sessions. In addition, defendant shall require John Dunn to attend all sexual harassment training sessions required for employees pursuant to this decree.
REPORTING BY DEFENDANT AND ACCESS BY EEOC 14. Defendant shall report in writing and in atlidavit fonn to the Regional Attorney of the Commission's Albuquerque Area Ottice at 505 \1arquette NW. Suite 900. Albuquerque. New Mexico 87102-2189. beginning six months from the date of the Entry of this Decree, and thereafter every six months for the duration of the decree the following infonnation: A. Any changes, modifications, revocations, or revisions to its policies and
procedures which concern or affect the subject of scx discrimination, sexual harassment. pregnancy harassment and retaliation. B. The name, address, position, social security number and telephone number of any employee who during the six months preceding the rcport has brought allegations of sex discrimination. harassment. or retaliation arising from activities in ddcndant's New Mcxico facilities against defendants or its personnel. including hut not limited to owners. stockholdcrs, management officials. vendors. agents. or employees. The nature of the complaint, investigatory eftilrts made by detcndants and the corrective action taken, if any, shall be specified.

C. The registries of persons attending each ,;fth~ seminar-training sessions required in paragraph II of this decree and a list of current employees on the day of the seminar-training session.
D. An affidavit by defendant stating: (I) the Notice required in paragraph 10 of this decree was posted and the locations where it was posted, and (2) it has clHnplil'd with paragraphs 9, 10, II, 13, 14, and 15 of this decree.
E. Copies of any video presentations defendant has utilized to comply with the requirements of this decree.
15. Thc Commission upon reasonable notice shall have the right to enter and inspect the premises of defendant's New Mexico tacilities to insure compliance with this decree and federal anti-discrimination laws.
COSTS AND DURATION 16. Each party shall bear its costs and attorney's tees incurred as a result of this action through the entry of this decree. 17. The duration of this decree shall be thrce (3) years from its entry. This Court shall retain jurisdiction of this action for the duration of the decree, during which the Commission may petition this Court t"r compliance with this decree. Should the Court determine that defendant has not complied with this decree, appropriate relief. including extension of this decree ti.lr such period as may be necessary to remedy its non-compliance, may be ordered. 18. This decree shall expire by its own terms at the end of three (3) years aftcr entry, without further action by the parties. 19. The parties agree to entry of this decree and judgment subject to final approval by the Court.
10

20. This Decree shall become elfective upon the date entered.

R ENTERED AND ORDERED this

day Of~ 2006.

.

~~,t2E~~gEACK

UNITED STAlES DISTRICT JUDGE

APPROVED AND CONSENTED TO:

Jamcs L. Lee Deputy General Counsel

Gwendolyn Young Reams Associate General Counsel

EQUAL EMPLOYMENT OPPORTlJ~ITY

COMMISSION

1801 L. Street, N.W.

Washington, D.C. 20507
~-~~M-A/~C/l

MARY JO O'NEILL

{'

Regional Attorney
~fAtLLtY:Cl. S:HAfNuLE~Y~:t:.<.~tlrrl=r-/\_

Acting Supervisory Trial Attorncy

Hinkle, Ilensley. Shanor & Martin, L.L.P. Albert L. Pitts, Esq. James M. Hudson, Esq. Derek L. Brooks Esq. 1'.0. Box 10 RoswelL New Mexico 88202-0010 (505) 622-6510 Allorneys.!or De./clldallf

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3300 l\'. Central Ave.. Suite 690 Phoenix, Arizona 85012
k~~\,,~-
LORETTA MEDINA Senior Trial Attorney
VERONICA MOLINA Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque Area Otlice 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102-2189 Telephone: (505) 248-2530 Allorneys(or Plailll(tf

I I

---------------------------- .

NOTICE TO ALL EMPLOYEES OF ROSWELL RADIO. INC.

This Notice is posted pursuant to a Consent Decree entered into between Roswell Radio, Inc., and the Equal Employment Opportunity Commission (EEOC).

It is unlawful under the federallaw (Title VII of the Civil Rights Act or 1964) and state law to discriminate against an employee on the basis of sex in hiring, tiring, compensation or other temls, and conditions or privileges of employment, including sexual harassment and pregnancy harassment.

Roswcll Radio. Inc., prohibits all forms of sex discrimination. including sexual harassment. Prohibited sexual harassment includes, but is not limited to, the tollowing conduct:

I. unwelcome touching of a sexual nature;:;

2. unwelcome comments, including comments regarding intimate body parts.

or clothing and discussion of sexual jokes or sexual behavior;

3. unwelcome requests for dates. sexual favors and propositions;

4. unwelcome distribution in the workplace of cartoons, pictures or drawings

of a sexual nature; and

s.

unwelcome display of pornographic materials in the workplact!.

Roswell Radio. Inc.• also prohibits any f()rm of harassment ofpcrsons because of the condition of pregnancy.

Roswell Radio. Inc., shall not discriminate on the basis of sex and shall not rctaliate against any employee who opposes a practice made unlawful under federal law, tiles, assists or participates in the filing of a charge of discrimination or participates in any investigation under Title VII, or who files a grievance alleging discrimination.

If you believe you are being sexually harassed, harassed hecause or pregnancy. discriminated against or retaliated against you should report this to the designated investigative officer at your workplace who may be contacted at ___________________

If you helieve you have been discriminated against or retaliated against by Roswell Radio, Inc.. you always have the right to seek assistance from:
I) Equal Employment Opportunity Commission (EEOC).505 Marquette, Suite 900. Albuquerque. New Mexico 87102, 1-800-669-4000 or 505-2485201. or
(2) The New Mexico Department of Labor. Human Rights Division, 1596 Pacheco St., Suite 103. Santa Fe, New Mexico 87505, 1-800-566-9471 or 505-827-6838.
You have the right to file a charge with the EEOC or the Department of Labor if you believe you are being discriminated against.
EXHIBIT A

j • • ,~ ;.

DISTRIBUTION OF S~:TTLEMENT AMOUNT

Tracyc Nelson

Fifty two thousand five hundred dollars and zero cents ($52.500.00) in compensatory damages, specifically t(lr personal injurics.

1cnnifer Fairclough

One hundred thirteen thousand seven hundred and fifty dollars and zero cents (S 113,750.00) in compensatory damages, specifically for personal injuries, which sum includes attorney fees and costs in the amount of $43,705.73.

Lisa Lassa

One hundred thirtccn thousand seven hundred and fifty dollars and zero ccnts ($113,750.00) in compensatory damages, specifically for personal injuries, which sum includes attorncy fees and costs in the amount of $46,193.72.

EXHIBIT B

 
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MTNDDL, REFER, TERMED
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:04-cv-00729-BB-LCS

EEOC v. Roswell Radio, Inc Assigned to: District Judge Bruce D. Black Referred to: Magistrate Judge Leslie C. Smith Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 06/29/2004 Date Terminated: 04/13/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C Emanuel Smith EEOC 3300 N Central Ave #690 Phoenix, AZ 85012 (602) 640-5033 Fax: 640-5009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric S Dreiband EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwendolyn Young Reams EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L Lee EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669

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V. Defendant Roswell Radio, Incorporated
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Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loretta F Medina EEOC 505 Marquette, NW #900 Albuquerque, NM 87102 (505) 248-5230 Fax: 248-5217 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Jo O'Neill EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-2504 (602) 640-5000 Fax: (602) 640-5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica A Molina Equal Employment Opportunity Commission Legal Unit 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 Fax: (505) 248-5217 Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Albert L. Pitts PO Box 10 Roswell, NM 88202 505-622-6510 Fax: 505-623-9332 Email: apitts@hinklelawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Derek L Brooks Hinkle, Hensley, Shanor & Martin, LLP PO Box 10 Roswell, NM 88202 (505) 622-6510 Fax: 623-9332 Email: dmerchant@hinklelawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/29/2004 06/29/2004 07/07/2004 07/08/2004
07/22/2004 08/05/2004 08/25/2004 08/26/2004
10/05/2004 10/07/2004 10/07/2004 10/13/2004 10/13/2004

#

Docket Text

1 COMPLAINT for civil rights w/jury demand (referred to Magistrate Judge Karen B. Molzen) (emr) (Entered: 06/30/2004)
LETTER re: consent to proceed before a US Magistrate Judge (emr) (Entered: 06/30/2004)
2 NOTICE by pltf of refusal to consent to proceed before a US Magistrate Judge (cc: intake) (jrm) (Entered: 07/07/2004)
3 MINUTE ORDER: transferring case to the Albuquerque Division and reassigning case from Magistrate Judge Leslie C Smith to District Judge Bruce D. Black (cc: all counsel*) (jrm) (Entered: 07/08/2004)
SUMMONS issued as to deft c/o John M Dunn registered agent (jrm) (Entered: 07/22/2004)
4 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by deft on 8/5/04 (*) (jrm) (Entered: 08/05/2004)
5 ANSWER by defendant [1-1] * (sl) (Entered: 08/26/2004)
6 INITIAL SCHEDULING ORDER by Magistrate Judge Karen B. Molzen Telephonic Rule 16 scheduling conference set for 10/14/04 at 1:30 pm; provisional discovery plan and IPTR due on 10/7/04 (cc: all counsel*) (sl) (Entered: 08/27/2004)
7 PROVISIONAL DISCOVERY PLAN by parties herein (*) (jrm) (Entered: 10/05/2004)
8 CERTIFICATE of service by plaintiff of initial disclosures to counsel on 10/7/04 * (vv) (Entered: 10/07/2004)
9 CERTIFICATE of service of Rule 26(a) initial disclosures by deft to counsel on 10/7/04 (*) (jrm) Modified on 10/08/2004 (Entered: 10/07/2004)
10 MOTION by deft to stay proceedings (*) (jrm) (Entered: 10/14/2004)
11 MEMORANDUM by deft in support of motion to stay proceedings [10-1] (*) (jrm) (Entered: 10/14/2004)

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10/14/2004 10/14/2004 10/27/2004
11/04/2004 11/24/2004 12/02/2004 12/02/2004 12/07/2004 12/21/2004 12/22/2004 01/10/2005 01/10/2005 01/10/2005 01/12/2005 01/13/2005 01/13/2005

12 CLERK'S MINUTES: before Magistrate Judge Karen B. Molzen Rule 16 scheduling conference held (*) (jrm) (Entered: 10/14/2004)
13 ORDER by Magistrate Judge Karen B. Molzen setting a settlement conference for 1/12/05 @ 1:30 pm in Las Cruces, NM (cc: all counsel*) (jrm) (Entered: 10/14/2004)
14 INITIAL PRE-TRIAL REPORT by District Judge Bruce D. Black and Magistrate Judge Karen B. Molzen ; Discovery set for 3/14/05 ; mtn filing ddl set for 4/18/05 ; proposed pretrial order due 6/28/05 ; pretrial conference set for 8:30 am on 8/8/05 ; jury trial set for 9:00 am on 8/23/05 in Roswell, NM ; Estimated # of Trial Days: 7-10; Chances of Settlement: unknown (cc: all counsel) (jrm) Modified on 11/01/2004 (Entered: 10/27/2004)
15 MEMORANDUM OF RESPONSE by pltf to motion to stay proceedings [10-1] (*) (jrm) (Entered: 11/04/2004)
16 REPLY by deft to response to mtn to stay proceedings [10-1]* (kd) (Entered: 11/24/2004)
17 ERRATA by defendant to reply to motion to stay [16-1] * (sl) (Entered: 12/02/2004)
18 NOTICE by defendant of completion of briefing on motion to stay proceedings [10-1]* (sl) (Entered: 12/02/2004)
19 CERTIFICATE of service of 1st set of interrog(s) & 1st request for production by pltf to counsel on 12/6/04 (*) (jrm) (Entered: 12/07/2004)
20 CERTIFICATE of service of 1st supplemental Rule 26(a) disclosures by deft to counsel on 12/21/04 (*) (jrm) (Entered: 12/22/2004)
21 CERTIFICATE of service of 1st supplemental initial disclosures by pltf to counsel on 12/22/04 (*) (jrm) (Entered: 12/22/2004)
22 CERTIFICATE of service of answers to 1st set of interrog(s) & responses to 1st request for production by deft to counsel on 1/10/05 (*) (jrm) Modified on 01/11/2005 (Entered: 01/10/2005)
23 MOTION by deft for protective order re: striking/discovery (*) (jrm) (Entered: 01/10/2005)
24 MEMORANDUM of law by deft in support of motion for protective order re: striking/discovery [23-1] (*) (jrm) (Entered: 01/10/2005)
25 SETTLEMENT CONFERENCE held before US Magistrate Judge Karen B. Molzen; case did not settle (js) (Entered: 01/13/2005)
26 MINUTE ORDER: Case referred from Magistrate Judge Karen B Molzen to Magistrate Judge Leslie C. Smith as further described herein (cc: all counsel*) (jrm) (Entered: 01/13/2005)
27 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference re: all pending mtns set for 2/1/05 @ 11:00 am (cc: all counsel*) (jrm) (Entered: 01/13/2005)

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01/27/2005 01/28/2005 01/31/2005 02/02/2005 02/03/2005 02/10/2005 02/11/2005
02/17/2005 02/21/2005
02/25/2005 02/28/2005 03/01/2005 03/03/2005
03/14/2005 03/23/2005 03/29/2005 04/04/2005 04/04/2005

28 RESPONSE by pltf to motion for protective order re: striking/discovery [23-1] (*) (jrm) (Entered: 01/27/2005)
29 APPENDIX of exhibits filed by pltf in support of response to motion for protective order re: striking/discovery [23-1] (jrm) (Entered: 01/31/2005)
30 UNOPPOSED MOTION by pltf to extend time until 2/28/05 to serve mtn to compel (*) (jrm) (Entered: 01/31/2005)
31 MOTION by deft for leave to file supplemental brief in support of its mtn to stay (jrm) (Entered: 02/02/2005)
32 CERTIFICATE of service of 1st request for admissions & 2nd request for production by pltf to counsel on 2/3/05 (*) (jrm) (Entered: 02/04/2005)
33 CERTIFICATE of service by defendant of 1st interrogatories, requests for admissions/production to counsel on 2/10/05 * (vv) (Entered: 02/10/2005)
34 AMENDED CERTIFICATE of service of 1st set of interrog(s), requests for admissions & requests for production by deft to counsel on 2/11/05 (*) (jrm) (Entered: 02/11/2005)
35 RESPONSE by pltf to motion for leave to file supplemental brief in support of its mtn to stay [31-1] (*) (jrm) (Entered: 02/17/2005)
36 CERTIFICATE of service of responses to 2nd requests for production & 1st request for admissions by deft to counsel on 2/21/05 (*) (jrm) (Entered: 02/22/2005)
37 REPLY by defendant to response to motion for leave to file supplemental brief in support of its mtn to stay [31-1] * (vv) (Entered: 02/25/2005)
38 NOTICE by deft of completion of briefing on mtn for leave to file supplemental brief in support of mtn to stay [31-1] (*) (jrm) (Entered: 02/28/2005)
39 CERTIFICATE of service of 2nd supplemental initial disclosures by pltf to counsel on 3/1/05 (*) (jrm) (Entered: 03/01/2005)
40 ORDER by Magistrate Judge Leslie C. Smith setting a settlement conference for 3/15/05 @ 8:15 am in Roswell, NM (cc: all counsel*) (jrm) (Entered: 03/03/2005)
41 DISCOVERY STIPULATION re witnesses by parties* (sl) (Entered: 03/15/2005)
42 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 4/7/05 @ 10:00 am (cc: all counsel*) (jrm) (Entered: 03/23/2005)
43 DISCOVERY & CONFIDENTIALITY ORDER by Magistrate Judge Leslie C. Smith re [40-1] (cc: all counsel) (yc) (Entered: 03/29/2005)
44 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 5/23/05 @ 11:30 am (cc: all counsel*) (jrm) (Entered: 04/04/2005)
46 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith Status hearing held; parties request time to analyze financial records as further described herein Law Clerk: J. Fritsch (yc) (Entered: 04/07/2005)

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09/26/2005 10/03/2005 10/06/2005 10/19/2005 10/24/2005 10/27/2005 10/31/2005 11/07/2005

45 ORDER by District Judge Bruce D. Black granting deft's motion to stay proceedings pending settlement negotiations [10-1] (cc: all counsel) (jrm) (Entered: 04/05/2005)
47 ORDER by District Judge Bruce D. Black , Case stayed as to pending discovery relating to settlement negotiations re [47-2] stayed through 6/7/05 except Rule 69 depositions & related requests; deft's settlement offer is not accepted by pltf & claimants by 6/7/05, the court will reschedule all discovery & mtns deadlines, trial date and all other matters necessary to bring this matter to a prompt resolution (cc: all counsel) (yc) Modified on 04/28/2005 (Entered: 04/12/2005)
48 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference set for 7/11/05 @ 10:30 am to set settlement conference (cc: all counsel*) (jrm) (Entered: 06/28/2005)
49 ORDER by Magistrate Judge Leslie C. Smith Telephonic Status conference reset for 8/8/05 @ 10:00 am (cc: all counsel*) (jrm) (Entered: 07/08/2005)
50 ORDER by Magistrate Judge Leslie C. Smith vacating Order staying discovery [47-1] Discovery cutoff 9/30/05 ; Motion Filing cutoff 11/15/05 (cc: all counsel*) (jrm) (Entered: 08/08/2005)
51 NOTICE by pltf of unavailability of counsel between 8/26/05 & 9/9/05 (*) (jrm) (Entered: 08/11/2005)
52 MEMORANDUM, OPINION, AND ORDER: by Magistrate Judge Leslie C. Smith granting/denying in part deft's motion for protective order re: striking/discovery as described herein [23-1] (cc: all counsel*) (jrm) (Entered: 09/20/2005)
53 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith Discovery cutoff 11/15/05 ; Motion Filing cutoff 12/15/05 (*) (jrm) (Entered: 09/26/2005)
54 CONFIDENTIALITY ORDER by Magistrate Judge Leslie C. Smith re [52-1] (cc: all counsel) (yc) (Entered: 10/03/2005)
55 NOTICE of hearing before District Judge Black Pretrial conference set for 4/20/06 @ 1:30 pm ; Jury selection/ trial set for 5/1/06 @ 9:00 am, all in Albuquerque (cc: all counsel*) (jrm) (Entered: 10/07/2005)
56 ORDER by Magistrate Judge Leslie C. Smith setting settlement conference for 11/2/05 at 8:30 am (cc: all counsel) * (vv) (Entered: 10/20/2005)
57 CERTIFICATE of service of answers & responses by deft to counsel on 10/20/05 (jrm) (Entered: 10/25/2005)
58 ORDER by Magistrate Judge Leslie C. Smith vacating the 11/2/05 settlement conference (cc: all counsel*) (jrm) (Entered: 10/28/2005)
59 CERTIFICATE of service by defendant of 1st supplemental responses to 1st request for production to counsel on 10/28/05 (vv) (Entered: 10/31/2005)
60 UNOPPOSED MOTION by pltf to extend time to brief dispositive mtns as described herein (jm) (Entered: 11/07/2005)

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01/13/2006 01/25/2006 01/26/2006 03/27/2006 04/13/2006 10/12/2006

61 ORDER by Magistrate Judge Leslie C. Smith granting pltf's unopposed motion to extend time to brief dispositive mtns as described herein; [60-1] Motion Filing due on 1/17/06 (cc: all counsel) (yc) (Entered: 11/10/2005)
62 NOTICE by parties of discovery stipulation (vv) (Entered: 11/28/2005)
63 MOTION by pltf for partial summary judgment (jrm) (Entered: 12/06/2005)
64 MEMORANDUM by pltf in support of motion for partial summary judgment [63-1] (jrm) (Entered: 12/06/2005)
65 AFFIDAVIT of Loretta Medina re: motion for partial summary judgment [63-1] (jrm) (Entered: 12/06/2005)
66 AFFIDAVIT of Jeffrey Stuhlmann re: motion for partial summary judgment [63-1] (jrm) (Entered: 12/06/2005)
67 UNOPPOSED MOTION by deft to extend time to file response to mtn for partial sum/jgm (*) (jrm) (Entered: 12/30/2005)
68 CLERK'S MINUTES: before Magistrate Judge Leslie C. Smith Telephonic status conference held * (vv) (Entered: 12/30/2005)
69 ORDER by Magistrate Judge Leslie C. Smith granting deft's unopposed motion to extend time to file response to mtn for partial sum/jgm until 1/13/06 & pltf shall reply by 1/25/06 to deft's response; [67-1] (cc: all counsel) (yc) (Entered: 01/03/2006)
70 RESPONSE by deft to motion for partial summary judgment [63-1] (*) (jrm) (Entered: 01/13/2006)
71 REPLY memo in support by pltf to response to motion for partial summary judgment [63-1] (jrm) (Entered: 01/26/2006)
72 NOTICE by pltf of completion of briefing on mtn for partial sum/jgm [63-1] (jrm) (Entered: 01/26/2006)
73 NOTICE of hearing before District Judge Black Jury selection/trial set for 5/1/06 @ 9:00 am in Albuquerque (cc: all counsel*) (jrm) (Entered: 03/27/2006)
74 CONSENT (decree) JUDGMENT by District Judge Bruce D. Black as described herein (cc: all counsel) (sl) (Entered: 04/13/2006)
75 CERTIFICATE of service of answers to 1st set of interrog(s) & 1st request for production by deft to counsel on 10/12/06 (*) "DOCUMENT FILED IN ERROR" (jrm) Modified on 11/15/2006 (Entered: 10/13/2006)

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 EEOC LITIGATION SETTLEMENT REPORT - April 2006

http://www.eeoc.gov/litigation/settlements/settlement04-06.html

EEOC v. Roswell Radio, Inc. No. CIV 04 0729 (D.N.M. April 13, 2006)
The Phoenix District Office filed this Title VII case alleging that defendant, which operates five radio stations in Roswell, New Mexico, subjected three female charging parties to a sexually hostile work environment, subjected one of the CPs to harassment based on her pregnancy, constructively discharged two CPs due to the sexual and pregnancy harassment, and discharged the third CP for opposing sexual harassment and participating in the first CP's EEOC charge.
The President, owner, and operator of Roswell Radio directed crude sexual comments at the three CPs and also frequently looked at pornography on the computer in his office, which employees could see when they came into the office. After he learned that one of the CPs (an Account/Executive Salesperson) was pregnant, the President began making derogatory comments about her pregnancy to her (for example, "Since you went and got knocked up, you've been nothing but lazy") and also in front of customers. These comments increased as the employee's pregnancy progressed, and in April 2003, he significantly reduced her compensation. The employee resigned in May 2003 due to the reduced compensation and continuing harassment. A second CP (a Sales Manager) resigned in August 2003 due to the President's lewd sexual comments. In September 2003, the president accused the third CP (an Office Manager/Human Resources Director) of putting the first CP up to filing an EEOC charge, which he had just received; he discharged several days later, allegedly because of her "belligerent" attitude and bookkeeping errors.
Under the 3-year consent decree resolving this case, the three CPs will receive $280,000 in monetary relief. The decree enjoins defendant at its New Mexico facilities, for the duration of the decree, from subjecting any employee to sex discrimination (including harassment based on sex or on pregnancy) and from retaliating under Title VII. All owners, stockholders, managers, supervisors, and employees at defendant's New Mexico facilities must attend annual 2-hour training sessions on sex discrimination, sexual harassment, pregnancy harassment, and retaliation. In addition to attending the sexual harassment training required for all employees, defendant's President will attend at least six individual counseling sessions with a qualified counselor, therapist, or psychologist to acquaint him with the effects of actual or perceived sexual harassment upon the victim.

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