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CASREF, CLASS, TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (Fort Wayne)
CIVIL DOCKET FOR CASE #: 1:04-cv-00248-TLS-RBC

Hill et al v Merrill Gardens LLC Assigned to: Judge Theresa L Springmann Referred to: Magistrate Judge Roger B Cosbey Cause: 42:2000 Job Discrimination (Race) Mediator William L Sweet Plaintiff William Anthony Hill on Behalf of Themselves and Others Similarly Situated
Plaintiff Elizabeth A Worthman on Behalf of Themselves and Others Similarly Situated
Plaintiff Golda Bailey on Behalf of Themselves and Others

Date Filed: 06/25/2004 Date Terminated: 10/06/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by John T Menzie Burt Blee Dixon Sutton & Bloom LLP 1000 Standard Federal Plaza 200 E Main Street Fort Wayne, IN 46802-0810 260-426-1300 Fax: 260-422-2722 Email: menzie@burtblee.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shane C Mulholland Burt Blee Dixon Sutton & Bloom LLP 1000 Standard Federal Plaza 200 E Main Street Fort Wayne, IN 46802-0810 260-426-1300 Fax: 260-422-2722 Email: mulholland@burtblee.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John T Menzie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shane C Mulholland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John T Menzie (See above for address)

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Similarly Situated
V. Defendant Merrill Gardens LLC named in complaint as Merrill Gardens Inc. doing business as Georgetown Place

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shane C Mulholland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathleen Marie Anderson Barnes & Thornburg LLP - FW/IN 600 One Summit Square Fort Wayne, IN 46802 260-425-4657 Fax: 260-424-8316 Email: kathleen.anderson@btlaw.com ATTORNEY TO BE NOTICED
Tiffany L Gooden Barnes & Thornburg LLP - FW/IN 600 One Summit Square Fort Wayne, IN 46802 260-423-9440 Fax: 260-424-8416 Email: tiffany.gooden@btlaw.com ATTORNEY TO BE NOTICED

Date Filed 06/25/2004
06/25/2004 06/25/2004 07/08/2004 07/13/2004
07/14/2004
07/14/2004

#

Docket Text

1 CLASS ACTION COMPLAINT with Jury Demand against Merrill Gardens Inc (Filing fee $ 150, Receipt #119772) , filed by William Anthony Hill, Elizabeth A Worthman.(lns, ) Additional attachment(s) added on 6/30/2004 (lns, ). (Entered: 06/28/2004)

2 NOTICE of Appearance by John T Menzie, Shane C Mulholland on behalf of William Anthony Hill, Elizabeth A Worthman (lns, ) (Entered: 06/28/2004)

3 Summons Issued (2) as to Merrill Gardens Inc. (lns, ) (Entered: 06/28/2004)

4 Summons Issued as to Merrill Gardens Inc. d/b/a Georgetown Place (FW) on 7/8/04. (kw) (Entered: 07/08/2004)

5 SUMMONS Returned Executed by William Anthony Hill, Elizabeth A Worthman. Merrill Gardens Inc served on 7/9/2004, answer due 7/29/2004. (Mulholland, Shane) (Entered: 07/13/2004)

6 SUMMONS Returned Executed by William Anthony Hill, Elizabeth A Worthman. Merrill Gardens Inc served on 7/12/2004, answer due 8/2/2004. (Mulholland, Shane) (Entered: 07/14/2004)

7 SUMMONS Returned Executed by William Anthony Hill, Elizabeth A Worthman. Merrill Gardens Inc (Highest Ranking Official) served on 7/12/2004, answer due 8/2/2004. (Mulholland, Shane) (Replaces docket entry #5 to show correct pdf

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07/14/2004
07/20/2004 07/20/2004 07/20/2004 07/22/2004
07/22/2004 08/02/2004 08/26/2004 08/27/2004 08/30/2004 09/01/2004
09/01/2004 09/10/2004 09/15/2004 09/15/2004

attached) Modified on 7/15/2004 (jcp, ). (Entered: 07/14/2004)
8 SUMMONS Returned Executed by William Anthony Hill, Elizabeth A Worthman. Merrill Gardens Inc (Resident Agent) served on 7/9/2004, answer due 7/29/2004. (Mulholland, Shane) (Replaces docket entry #6 to show correct pdf attached) Modified on 7/15/2004 (jcp, ). (Entered: 07/14/2004)
9 NOTICE of Appearance by Kathleen Marie Anderson on behalf of Merrill Gardens Inc (Anderson, Kathleen) (Entered: 07/20/2004)
10 NOTICE of Appearance by Tiffany L Gooden on behalf of Merrill Gardens Inc (Gooden, Tiffany) (Entered: 07/20/2004)
11 AGREED NOTICE to extend time to file answer filed by Merrill Gardens Inc ; answer due by August 30, 2004. (Gooden, Tiffany) (Entered: 07/20/2004)
12 ORDER Rule 16 Preliminary Pretrial Conference set for 9/1/2004 11:00 AM in Fort Wayne before Magistrate Judge Roger B Cosbey.Signed by Judge Roger B Cosbey on 7/22/04. Counsel are advised that the Court will be addressing with them "class cousnel issues" as set forth in Fed. R.,Civ. P.23(g).(wsy) (Entered: 07/22/2004)
13 Remark: The previous entry was deleted for failure to attach document. (wsy) (Entered: 07/22/2004)
14 CERTIFICATE /Attorney-Client Certification. (Anderson, Kathleen) (Entered: 08/02/2004)
15 REPORT of Rule 26(f) Planning Meeting. (Anderson, Kathleen) (Entered: 08/26/2004)
16 CERTIFICATE Attorney Certification (William Anthony Hill). (Mulholland, Shane) (Entered: 08/27/2004)
17 Defendant's ANSWER to 1 Complaint and Affirmative Defenses to Plaintiffs' Class Action Complaint by Merrill Gardens Inc.(Gooden, Tiffany) (Entered: 08/30/2004)
18 Minute Entry for proceedings held before Judge Roger B Cosbey : Preliminary Pretrial Conference held on 9/1/2004. Mr. Hill, Mr. Menzie and Mr. Mulholland appear in person. Ms. Anderson, Ms. Gooden and defendant representative appear in person. The Report is approved. Discovery is opened as to the Class Certification issues only. An affidavit of Ms. Worthman regarding her non-appearance at today's conference is due within 10 days. Counsel agree to select a mediator within 7 days. A Motion for class certification will be filed 30 days after discovery thereon is completed with a response time of 30 days and a reply time of 15 days. Any trial date is deferred until afte rht eCourt rules on class certification. (Tape #54) (wsy) (Entered: 09/01/2004)
19 DISCLOSURE of Corporate filed by Merrill Gardens Inc.(Gooden, Tiffany) (Entered: 09/01/2004)
20 NOTICE re selection of William Sweet as mediator, filed by pltfs (W. Sweet added to case as mediator)(lrm, ) (Entered: 09/13/2004)
21 MOTION for Extension of Time to File Affidavit by Plaintiff Elizabeth A Worthman. (Attachments: # 1 Exhibit "B")(Mulholland, Shane) (Entered: 09/15/2004)
22 NOTICE OF MANUAL FILING of Motion for Extension of Time in Which to File Affidavit of Elizabeth A. Worthman by Elizabeth A Worthman (Mulholland, Shane)

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09/16/2004 09/29/2004 09/29/2004 09/30/2004
10/04/2004
10/04/2004
10/21/2004 01/07/2005 02/01/2005
02/25/2005 02/25/2005 02/28/2005 03/01/2005 03/02/2005 03/09/2005

(Entered: 09/15/2004)
23 ORDER granting 21 Motion for Extension of Time to File Affidavit explaining absence at the scheduling conference to and including September 29, 2004. No further order will enter. (wsy) (Entered: 09/16/2004)
24 Second MOTION for Extension of Time to File Affidavit of Elizabeth A. Worthman by Plaintiff Elizabeth A Worthman. (Mulholland, Shane) (Entered: 09/29/2004)
25 NOTICE OF MANUAL FILING of Exhibits "A"-"C" under Seal by Elizabeth A Worthman (Mulholland, Shane) (Entered: 09/29/2004)
26 ORDER re 24 Second MOTION for Extension of Time to File Affidavit of Elizabeth A. Worthman filed by Elizabeth A Worthman. A Motion Hearing is set for 10/4/2004 03:00 PM in Fort Wayne before Magistrate Judge Roger B Cosbey. Counsel to be personally present. (wsy) (Entered: 09/30/2004)
27 Minute Entry for proceedings held before Judge Roger B Cosbey : Counsel appear as directed. AMotion Hearing is held on 10/4/2004 re 24 Second MOTION for Extension of Time to File Affidavit of Elizabeth A. Worthman, filed by Elizabeth A Worthman. The Court hears from counsel. A separate order will enter as to the Court's findings. (Tape #56) (wsy) (Entered: 10/04/2004)
28 ORDER TO SHOW CAUSE, granting 24 Second MOTION for Extension of Time to File Affidavit of Elizabeth A. Worthman filed by Elizabeth A Worthman. Response to Order to Show Cause/Affidavit due by 10/21/2004. Signed by Judge Roger B Cosbey on 10/4/2004. (lns, ) (Entered: 10/05/2004)
29 NOTICE by Elizabeth A Worthman re 28 Order to Show Cause, Terminate Motions,, Concerning Affidavit (Mulholland, Shane) (Entered: 10/21/2004)
30 NOTICE by Merrill Gardens Inc of Supplemental Corporate Disclosure Statement (Gooden, Tiffany) (Entered: 01/07/2005)
31 MINUTE ORDER Status Conference set for 3/9/2005 01:00 PM in Fort Wayne before Magistrate Judge Roger B Cosbey. The Court will discuss at the hearing the setting of this case for a settlement conference with all other cases where Merrill Gardens is the named defendant. No pdf order to follow. (wsy) (Entered: 02/01/2005)
32 NOTICE by Merrill Gardens Inc of Agreed Enlargement of Time (Gooden, Tiffany) (Entered: 02/25/2005)
33 MOTION for client representative, Michelle Corey, to participate in status conference by telephone by Defendant Merrill Gardens Inc. (Gooden, Tiffany) (Entered: 02/25/2005)
34 ORDER granting 33 Motion for client representative, Michelle Corey, to participate in status conference by telephone by Defendant Merrill Gardens Inc . Signed by Judge Roger B Cosbey on 2/28/2005. (lns, ) (Entered: 02/28/2005)
35 Joint MOTION for Extension of Time to Complete Discovery on Class Certification by Defendant Merrill Gardens Inc. (Anderson, Kathleen) (Entered: 03/01/2005)
36 ORDER granting 35 Joint Motion for Extension of Time to Complete Discovery on Class Certification until 5/29/2005 filed by Defendant and Plaintiffs. Signed by Judge Roger B Cosbey on 3/2/2005. (lns, ) (Entered: 03/02/2005)
37 Minute Entry for proceedings held before Judge Roger B Cosbey : Settlement

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03/09/2005
03/09/2005 04/18/2005 04/19/2005 05/04/2005 05/04/2005 05/20/2005 05/20/2005 05/20/2005
06/03/2005 06/08/2005

Conference held on 3/9/2005. A further settlement conference is set for 4/18/05 at 9am. (wsy) (Entered: 03/09/2005)
38 Minute Entry for proceedings held before Judge Roger B Cosbey : Preliminary Pretrial Conference held on 3/9/2005. All proceedings are STAYED until further order of the Court with the exception of informal discovery as it relates to settlement. Defendants response to any outstanding discovery is also stayed, the date to respond, if any, to be reset by further order.Settlement Conference set for 4/18/2005 09:00 AM in Fort Wayne before Magistrate Judge Roger B Cosbey. No further deadlines are established.(Tape #68) (wsy) (Entered: 03/09/2005)
39 SCHEDULING ORDER: Settlement Conference set for 4/18/2005 09:00 AM in Fort Wayne before Magistrate Judge Roger B Cosbey.Signed by Judge Roger B Cosbey on 3/9/05. (wsy) (Entered: 03/09/2005)
40 Minute Entry for proceedings held before Judge Roger B Cosbey : Settlement Conference held on 4/18/2005. No Notice of Settlement will be submitted at this time. (wsy) Modified on 4/19/2005 (wsy, ). (Entered: 04/19/2005)
41 ORDER Status Conference set for 5/4/2005 08:30 AM in Fort Wayne before Magistrate Judge Roger B Cosbey. No pdf order will follow. (wsy) (Entered: 04/19/2005)
42 Minute Entry for proceedings held before Judge Roger B Cosbey : Status Conference held on 5/4/2005. (Tape #70) (wsy) (Entered: 05/04/2005)
43 ENTRY FOR JUDGE THERESA L SPRINGMANN re [42] Status Conference. Settlement documents and proposed notices are to be submitted to Judge Springmann by 5/17/2005. Telephonic Status Conference set for 5/20/2005 04:00 PM in Fort Wayne before Judge Theresa L Springmann to be held in conjunction with case 1:05CV004TLS. (jjj) (Entered: 05/04/2005)
44 MOTION to Certify Class by Plaintiffs William Anthony Hill, Elizabeth A Worthman. (Mulholland, Shane) (Entered: 05/20/2005)
45 MEMORANDUM in Support of 44 MOTION to Certify Class filed by William Anthony Hill, Elizabeth A Worthman. (Mulholland, Shane) (Entered: 05/20/2005)
46 TELEPHONE STATUS CONFERENCE held on 5/20/2005 before Judge Theresa L Springmann: Status Conference in conjunction with case 1:05CV004TLS regarding preliminary approval of 44 MOTION to Certify Class. Pltf attys Muholland, Bird; Dft atty Anderson present. Court GRANTS Dft oral Motion to Amend Docket to Reflect Dft name Merrill Gardens LLC. Stipulated Order granting Preliminary approval to be submitted by 6/3/2005. Telephonic Status Conference set for 6/3/2005 01:30 PM in Fort Wayne before Judge Theresa L Springmann. INPERSON Hearing to be held on 9/9/2005 at 09:00 AM at Fort Wayne before Judge Theresa L Springmann re objections/final approval. (Court Reporter T. Gallucci.) (jjj) (Entered: 05/26/2005)
47 ENTRY FOR JUDGE THERESA L SPRINGMANN. Telephonic Status Conference RESET (in conjunction with cause 1:05CV004TLS) for 6/8/2005 01:30 PM in Fort Wayne before Judge Theresa L Springmann at request and agreement of counsel to review revised documents. (jjj) (Entered: 06/06/2005)
48 Joint STIPULATION for Addition of Additional Plaintiff by Defendant Merrill Gardens LLC, Plaintiffs William Anthony Hill, Elizabeth A Worthman. (Mulholland, Shane) (Entered: 06/08/2005)

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06/08/2005
06/08/2005
06/08/2005
06/16/2005
08/18/2005 08/23/2005 08/23/2005 08/24/2005 08/26/2005 08/26/2005 08/29/2005 09/01/2005 09/02/2005 09/07/2005 09/07/2005 09/07/2005

49 TELEPHONE STATUS CONFERENCE held on 6/8/2005 before Judge Theresa L Springmann in conjunction with cause 1:05CV004TLS). Pltf attys Mulholland, Menzie, Bird, Intern Sherman; Dft attys Anderson, Intern Brackey present. Court GRANTS 48 Joint STIPULATION for Addition of Additional Plaintiff filed by William Anthony Hill, Elizabeth A Worthman, Merrill Gardens LLC. Court to grant Stipulated Order for preliminary approval re class action upon receipt. (Court Reporter T. Gallucci.) (jjj) (Entered: 06/08/2005)
50 STIPULATION /Stipulated Order Granting Preliminary Approval to Class Action Settlement, Conditional Class Certification, and Proposed Consent Decree by Defendant Merrill Gardens LLC. (Attachments: # 1 Exhibit A-1 to A-3# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Anderson, Kathleen) (Entered: 06/08/2005)
51 ORDER granting 48 Joint STIPULATION for Addition of Additional Plaintiff filed by William Anthony Hill, Elizabeth A Worthman, Merrill Gardens LLC. Golda Bailey rep by Shane C Mulholland, John T Menzie added . Signed by Judge Theresa L Springmann on 6/8/2005. (lns, ) (Entered: 06/09/2005)
52 ORDER granting 50 Stipulation/Stipulated Order Granting Preliminary Approval to Class Action Settlement, Conditional Class Certification, and Proposed Consent Decree by Defendant Merrill Gardens LLC . Signed by Judge Theresa L Springmann on 6/16/2005. (lns, ) (Entered: 06/20/2005)
53 RECEIPT of Statement from Alexis Smith re settlement. (lns) (Entered: 08/23/2005)
54 RECEIPT of Objection Letter from Marcus E Mitchell Sr re settlement. (lns) (Entered: 08/24/2005)
55 RECEIPT of Objection re settlement from Rodney Woods. (lns) (Entered: 08/24/2005)
56 RECEIPT of Letter from Anitera Fowler re settlement. (lns) (Entered: 08/26/2005)
57 RECEIPT of Letter from Lawrence T Brooks re settlement. (lns) (Entered: 08/29/2005)
58 RECEIPT of Objection by Atty Edward Smith obo Vickie M Hill re proposed settlement. (lns) (Entered: 08/29/2005)
59 RECEIPT of Letter from Elmo R Portee Jr re proposed settlement. (lns) (Entered: 08/30/2005)
60 AFFIDAVIT of Cindy L. Harrison by Merrill Gardens LLC. (Attachments: # 1 Exhibit A-F)(Anderson, Kathleen) (Entered: 09/01/2005)
61 RECEIPT of Letter from Robert Warren Hagler Jr re settlement. (lns) (Entered: 09/02/2005)
62 ENTRY FOR JUDGE THERESA L SPRINGMANN. Telephonic Status Conference set for 9/8/2005 11:00 AM in Fort Wayne before Judge Theresa L Springmann re 9/9/2005 Hearing. (Entered: 09/07/2005)
63 RECEIPT of Letter from Tony Lamar Robertson re proposed settlement. (lns) (Entered: 09/08/2005)
64 RECEIPT of Letter from Robert L Guy Jr re proposed settlement. (lns) (Entered: 09/08/2005)

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09/08/2005 09/09/2005
09/12/2005 09/16/2005 09/23/2005 09/23/2005 09/29/2005 10/06/2005 10/06/2005 10/28/2005 04/04/2006

66 TELEPHONE STATUS CONFERENCE held before Judge Theresa L Springmann. Pltfs' attys Mullholland, Bird; Dft attys Anderson Gooden present. Court reviews pre-hearing conference proceedings and issues. (Court Reporter T. Gallucci.) (jjj) (Entered: 09/13/2005)
65 FAIRNESS HEARING held before Judge Theresa L Springmann on 9/9/2005; pltfs by Atty J. Menzie, Atty S. Mulholland, Atty K. Bird, Atty M. Eisele, EEOC rep M. Guest, unnamed class rep G. Bailey; defts by Atty K. Anderson, Atty T. Gooden, and party reps D. Manning and B. Bowman; court hears testimony from parties having filed objections to proposed class settlement/non-inclusion in class; court calls for testimony of objectors A. Smith, L. Brooks, A. Fowler, R. Hughes, E. Portee, but those individuals are not present; court will consider the written submissions of those parties; EEOC presents evidence; court hears from G. Bailey obo the Unknown Class; court hears from S. Mulholland obo W. Hill, representative of named class, obo named class; court grants final approval of S. Mulholland and J. Menzie to act as class counsel; class counsel request that G. Bailey as rep of unknow class be compensated; cnsl to confer re that possibility; matter of final approval of proposed class settlement TAKEN UNDER ADVISEMENT; counsel to submit revised form of final order of approval; time frame for this submission to be addressed at a TELE CONF set for 9/12/05, 2:00 p.m. before Judge Theresa L Springmann. (Court Reporter Tina Gallucci.) (lrm) (Entered: 09/09/2005)
67 TELEPHONE STATUS CONFERENCE held before Judge Theresa L Springmann. Pltfs' attys Mulholland, Bird; Dft atty Anderson present. Court to receive proposed order by 9/15/2005 12:00 PM. Final Briefing of general issues by 9/22/2005. (Court Reporter T. Gallucci.) (jjj) (Entered: 09/13/2005)
68 RECEIPT of supplemental letter re 63 Receipt of Letter from Tony Robertson re proposed settlement. (lns) (Entered: 09/21/2005)
69 ENTRY FOR JUDGE THERESA L SPRINGMANN - Telephone Conference set for 9/23/2005 09:45 AM in Fort Wayne before Judge Theresa L Springmann regarding notification. (jjj) (Entered: 09/23/2005)
70 TELEPHONE CONFERENCE held before Judge Theresa L Springmann. Pltfs' attys Menzie, Bird; Dft attys Anderson, Gooden present. Cnsl advised Court as to notification issues. Pltf to mail notification by 9/23/2005 COB with response ddl. Recipient Response to be filed by 9/29/2005. Court to receive notice of status by 9/30/2005. (Court Reporter T. Galucci.) (jjj) (Entered: 09/23/2005)
71 RECEIPT of Letter from Roszetta Clark re settlement proposal. (received from Atty John Menzie). (lns) (Entered: 10/05/2005)
72 OPINION AND ORDER granting Final Approval to Class Action Settlement, Entry of Final Judgment, and Entering Consent Decree. Court orders entry of final judgment of dismissal w/prejudice as outlined in this Order.Signed by Judge Theresa L Springmann on 10/6/2005. (lns) Modified on 10/6/2005 (lns). (Entered: 10/06/2005)
73 CLERK'S ENTRY OF JUDGMENT. (lns) (Entered: 10/06/2005)
74 SETTLEMENT AGREEMENT by Merrill Gardens LLC. (Anderson, Kathleen) (Entered: 10/28/2005)
75 STATUS REPORT Joint Verified Final Report and Request for Approval by Golda Bailey, William Anthony Hill. (Attachments: # 1 Exhibit "A")(Mulholland, Shane) (Entered: 04/04/2006)

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04/12/2006

76 COURT APPROVAL AND FINAL ORDER re 75 Joint Verified Final Report and Request for Approval by Golda Bailey, William Anthony Hill. Signed by Judge Theresa L Springmann on 4/12/2006. (lns) (Entered: 04/12/2006)

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 FILED

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

200~ JUN 25 PH 3: 1+6

FORT WAYNE DIVISION

WILLIAM ANTHONY HILL, and

)

STEP;n; R UJOfllG.CL£RK
u.s. DlSri~ICT COURT FOR THE NORTHEHN DISTRICT
OF INDIANA

ELIZABETH A. WORTHMAN,

)

on Behalf of Themselves and Others )

Similarly Situated,

)

)

Plaintiffs,
v.

) ) )

TLS CASE NO.1 ~ 0 4 C V 24 8 -

)

MERRILL GARDENS, INC., d/b/a

)

Complaint - Class Action

GEORGETOWN PLACE,

)

)

Defendant.

)

CLASS ACTION COMPLAINT Comes now William Anthony Hill and Elizabeth A. Worthman (collectively "Plaintiffs"), individually and on behalf of all other persons similarly situated by their undersigned attorneys, for their Class Action Complaint, allege as to themselves and upon information and belief as to all other matters, and state as follows:
I. NATURE OF THE ACTION 1. Plaintiffs brings this action as a class action on behalf of themselves and all other persons similarly situated who applied for employment with Merrill Gardens, Inc. ("Defendant") but was denied, because of their race and/or color. 2. This is a proceeding which has been brought pursuant to Title VII of the Civil Rights Act of 1964 42 U.S.C. §2000e et seq. ("Title VII") and/or Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. §1981 ("§1981") and all amendments thereto.

3. Plaintiffs bring this action as a class action pursuant to Rules 23(a) and 23(b)

of the Federal Rules of Civil Procedure on behalf of all persons who applied or otherwise

sought employment with the Defendant between June 25,2002 and June 25, 2004 ("Class

Period") but were denied because of their race and/or color.

4.

The Plaintiffs are named herein as representative of a significantly larger

class of individuals who were discriminated against by the Defendant because of their race

and/or color. Plaintiffs have been selected because they will fairly and adequately protect

the interests of all class members hereto.

5. This matter is being brought as a class action because the proposed class

of people is so numerous that joinder of all members is impracticable; there are questions

of law or fact common to the class; the claims or defenses of the representative parties are

typical of claims or defenses of the class; and the representative parties will fairly and

adequately protect the interest of the class.

6. The prosecution of separate actions by or against individual members of the

class will create a risk of inconsistent or varying adjudications with respect to the individual

class members which will establish incompatible standards of conduct for the Defendant

and adjudications with respect to individual class members would, as a practical matter,

be dispositive of the interest of other members not parties to the adjudications or

substantially impair or impede their ability to protect their interest.

7. Questions of law and/or fact common to the class members predominate over

any questions affecting only individual members making a class action the superior method

for the fair and efficient adjudication of the instant controversy.

-2-

II. CLASS ACTION PLAINTIFFS 7. William Anthony Hill ("Hill") is African-American and a citizen of the United States, and at all material times relevant to the instant action, resided at 5024 Marston Drive, Fort Wayne, County of Allen, State of Indiana 46825. 8 Elizabeth A. Worthman ("Worthman") is African-American and a citizen of the United States, and at all material times relevantto the allegations contained herein, resided at 2928 Trentman Avenue, Fort Wayne, County of Allen, State of Indiana, 46806. 9. Merrill Gardens, Inc. ("Defendant") is a for-profit Indiana Corporation doing business at 1717 Maplecrest Road, Fort Wayne, County of Allen, State of Indiana, 46815; its registered agent is CT Corporation System, 36 South Pennsylvania Street, Indianapolis, Indiana 46204. 10. Defendant, upon information and belief, employs more than fifteen (15) employees throughout each week of the current and preceding calendar year and is an employer pursuant to Title VII and enters into contractual relationships with its employees which deserves protection pursuant to §1981. 11. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on their own behalf and on behalf of all other persons similarly situated including all prospective employees who filled out applications or otherwise sought employment with the Defendant, but, were denied because of their race/color; and on behalf of all other persons who were dissuaded from applying or otherwise seeking employment with the Defendant because of their policy and practice of denying AfricanAmerican consideration for employment, regardless of their qualifications and/or experience, solely on the basis of their race.
-3-

III. JURISDICTION AND VENUE 12. This Court has jurisdiction pursuant to 28 U.S.C. §1331 and 1343 (Federal Question and Civil Rights). 13. Venue is appropriate in that all incidents, occurrences, and/or omissions alleged herein occurred within Fort Wayne, County of Allen, State of Indiana.
IV. CLASS ACTION ALLEGATIONS 14. During the class period, the Plaintiffs inquired or otherwise applied for employment with the Defendant. 15. The Plaintiffs were fully qualified for the positions sought. 16. On information and belief, the Defendant hired several individuals for the open positions for which the Plaintiffs applied, all of whom were Caucasian. 17. Defendant routinely and systematically refused to employ African-Americans. 18. Defendant maintains a policy or a pattern of practice whereby AfricanAmericans are targeted for non-selection. 19. On information and belief, Defendant maintains a secret policy whereby an
identifying notation (either a "v" or a "Z") is placed individually on the applications of all
African-Americans. 20. The Defendant's policy of secretly marking applications of African-Americans
is inherently discriminatory resulting in the discrimination of the Plaintiffs and other AfricanAmericans who have applied for employment.
21. The Defendant's policy of denying consideration for employment to AfricanAmericans is inherently discriminatory resulting in a chilling effect dissuading otherwise
-4-

qualified applicants from applying or pursuing employment opportunities with the Defendant.
22. The Defendant's preferential treatment of Caucasians and their hiring practices constitutes racial discrimination prohibited by Title VII.
23. The Defendant's policy and practice of excluding African-Americans from employment constitutes an interference with the Plaintiffs' employment relationship protectable under 42 U.S.C. §1981.
24. As a direct and proximate result of the Defendant's discrimination, the Plaintiffs and all Class members have suffered harm including, but not necessarily limited to, loss of back pay, front pay, and all other incidental benefits of employment.
25. The Defendant's conduct and/or gross negligence in maintaining a policy of discrimination constitutes the intentional and reckless violation of the Plaintiffs' constitutional rights and other federal laws giving the Plaintiffs protection, warrantying an imposition of punitive damages.
WHEREFORE, Plaintiffs pray that this Court designate this matter to be a proper class action, certify the Plaintiffs as class representatives under Rule 23(a) of the Federal Rules of Civil Procedure; to enter judgment in favor of the Plaintiffs and against the Defendant for pecuniary damages, compensatory damages, punitive damages, equitable and injunctive relief (where appropriate), reasonable attorneys' fees and costs and for all other available damages under the law and for all other relief just and proper in the premises.
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v. JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs hereby demand a trial by jury in this action.
Respectfully submitted, BURT, BLEE, DIXON, SUTTON & BLOOM, LLP
~e-~?#/
Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne, IN 46802 Telephone:(260) 426-1300 Facsimile: (260) 422-2722 Attorneys for Plaintiff
SCM/tmm N:ISCMIHill, AnthonylComplaint.wpd
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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZABETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

_____________________________________

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.1:04-CV-248 CAUSE NO.1:05-CV-4

OPINION AND ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT, ENTRY OF FINAL JUDGMENT,
AND ENTERING CONSENT DECREE The Final Approval to Class Action Settlement and Entry of Final Judgment is for purposes of the above-referenced action, Hill v. Merrill Gardens LLC (the "Hill Action"). The Entry of Consent Decree is for purposes of the above-referenced action, Equal Employment Opportunity Commission v. Merrill Gardens LLC (the "EEOC Action"). Plaintiff William Anthony Hill ("Plaintiff Hill") and Plaintiff Golda Bailey ("Plaintiff Bailey"), on behalf of a Settlement Class (and respective subclasses), and Defendant Merrill Gardens

LLC ("Merrill Gardens") have entered into a settlement agreement (the "Settlement Agreement"). The parties previously submitted the Settlement Agreement in the Hill Action and a proposed Consent Decree to this Court for preliminary approval. On June 16, 2005, this Court entered an Order Granting Preliminary Approval to Class Action Settlement, Conditional Class Certification, and Proposed Consent Decree ("Preliminary Approval Order"). Counsel for Merrill Gardens has filed a declaration confirming the timely dissemination of notices in the media. At the hearing on September 9, 2005, counsel for the EEOC verified timely dissemination of the Notices of Class Action, Proposed Settlement, and Hearing ("Class Notice") required by the Preliminary Approval Order. No exclusion (opt-out) requests were submitted by any Class Member. Now, the matter having come before the Court for hearing on September 9, 2005, on the parties' request for the entry of an Order Granting Final Approval to the Proposed Class Action Settlement and for entry of Final Judgment in the Hill Action and for entry of an Agreed Consent Decree in the EEOC Action, the Court finds that it has jurisdiction over the parties and the subject matter, and finds as follows:
A. Final Order Confirming Class Certification and Approving Notice to Members of the Settlement Class
1. Class Certification In the Preliminary Approval Order, this Court granted conditional class certification to the
following settlement class and subclasses: All African-American and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates.
2

The parties identified and sought preliminary approval of two subclasses: The "Known Class": Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman ("Known Class Members"), each of whom participated in the Hill Action and/or the EEOC Action prior to April 18, 2005. The "Unknown Class": Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as "Unknown Class Members."
("Settlement Class.") The Court preliminarily found and concluded that the Settlement Class satisfied all the requirements of Federal Rule of Civil Procedure 23(a) and (b)(3); appointed Plaintiff Hill as Class Representative of the Known Class and Plaintiff Bailey as Class Representative of the Unknown Class; and appointed Plaintiff Hill's counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class ("Class Counsel").
This Court recognizes that even with stipulations of the parties, it has a duty to make an independent determination that each requirement of Rule 23 is satisfied. To this end, this Court has carefully examined the pleadings, record, and evidence before it, and has rigorously analyzed the parties' stipulations and the record relative to class certification.
Having considered all submissions timely filed with the Court pursuant to the Preliminary Approval Order and the Settlement Agreement, and all the evidence and submissions presented at or in conjunction with the September 9, 2005 hearing, the Court now finds and concludes that the proposed Settlement Class and subclasses satisfy all the requirements of Rule 23(a) and (b)(3), gives final approval to Plaintiff Hill and Plaintiff Bailey as the Representatives of the Settlement Class (and respective subclasses), and confirms appointment of Class Counsel in all respects as a part of this Order under Rule 23(a) and (b)(3) and for the purposes of implementing the Class Action
3

Settlement provided for in the Settlement Agreement and entering Final Judgment in the Hill Action. Class Counsel have represented and will represent the interests of Known, Unknown, and absent Class Members. The Court further gives final approval to the proposed Consent Decree in the EEOC Action. The only change that the parties propose, and the Court approves, to the tendered Settlement Agreement is that Elizebeth Worthman, who did not timely return a Release, nonetheless be allowed to retain eligibility for receipt of proceeds since she returned an executed Release before entry of this Order. However, the total amount of the compensatory damages (other than wages) pursuant to Section III.B.1.b of the preliminarily approved Settlement Agreement and Section 302 of the final Consent Decree shall be reduced to $14,000. The Court specifically notes that this minor change is fair to all concerned, is consistent with the requirements of Rule 23, and corresponds with the approval given by Elizebeth Worthman and her attorney, John Menzie.
For the reasons set forth above and detailed more fully below, this Court hereby formally declares the prerequisites of Rule 23 to be fully demonstrated and met, rendering class treatment proper.
2. Findings of Fact and Conclusions of Law a. Numerosity
Over 250 positions were filled at Merrill Gardens from February 1998 to April 2005. Since not all applications were retained by the Georgetowne Place facility during this time period, the specific number of applicants is uncertain and cannot be specifically ascertained, but the number of applicants would certainly well exceed at least two to three times the number of positions filled. Further, in response to media notices the EEOC received contacts from more than 80 individuals.
4

Not all of these individuals who contacted the EEOC were determined to be eligible. However, the number of contacts, viewed in conjunction with the number of vacant positions, supports the conclusion that a sufficient number of Class Members exist to render joinder of all parties impracticable and plaintiffs satisfy the numerosity requirement of Rule 23(a)(1).
b. Commonality There are questions of law or fact common to the class so that Plaintiffs satisfy the
commonality requirements of Rule 23(a)(2). The class alleges a procedure of declining minority applications. Commonality is met.
c. Typicality The claims of the two named Plaintiffs are sufficiently typical of the claims of the Class to
satisfy the typicality requirements of Rule 23(a)(3). Each Plaintiff applied at Georgetowne Place. Plaintiff Hill represents the interests of the Known Class Members. Plaintiff Bailey represents the interests of the Unknown Class Members. No significant conflicts of interest exist between the absent class members and the named representatives to suggest that typicality is lacking. Therefore, typicality is satisfied.
d. Adequate Representation The named Plaintiffs will fairly and adequately protect the interests of the class as required
by Rule 23(a)(4). Counsel for plaintiffs will fairly and adequately represent the interests of the class as required by Rule 23(g) and as previously noted by this Court.
5

e. Grounds Generally Applicable Merrill Gardens allegedly acted on grounds generally applicable to the class in failing to hire
certain minority applicants for a period of time. Therefore, final injunctive relief or corresponding relief with respect to the class as a whole, in the event that Plaintiffs would prevail on the merits, would be appropriate.
f. Predominance and Superiority Questions of law or fact common to the members of the class predominate over any
questions affecting only individual members. Resolution of these common questions, examples of which are stated above in subsection b, will be a substantial step toward disposition of the case. Therefore, the Rule 23(b)(3) requirement of predominance of common questions is met, and a class action is superior to other available methods for the fair and efficient adjudication of this controversy.
g. Manageability Concerns regarding manageability of the class are greatly reduced in this action. Class
Members have been identifiable through an extensive media campaign. Notices were properly and promptly sent pursuant to this Court's preliminary order. No choice of law issues are presented to the Court, as no party contests that federal law is properly applied to the facts in the action. Therefore, concerns regarding manageability and due process notice are noted by the Court, and are found to be properly addressed by the definition and structure of the present action.
6

3. Notice The Preliminary Approval Order approved the form and content of the Notices to be
circulated via print media and the radio pursuant to the schedule attached to this Court's Preliminary Approval Order as Exhibit "C" and the text and narrative attached as Exhibit "D" (the "Notices"). The Notices provided sufficient information and were disseminated with sufficient frequency to meet the notice requirements of Federal Rule of Civil Procedure 23(c) and inform members of the Hill Action Settlement Class and EEOC Action Class of the essential terms of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional information about the Settlement Agreement and Consent Decree, appropriate information about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate information about their rights, and the procedures, to object to the terms of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notices also fairly and adequately informed members of the Hill Action Settlement Class that failing to obtain, execute, and return the Release (that was available from the EEOC and which was attached to this Court's Preliminary Approval Order as Exhibit "E") would result in their ineligibility for payment under the Settlement Agreement and proposed Consent Decree.
Based on the foregoing, the Court hereby finds and concludes that members of the Hill Action Settlement Class have been provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Rule 23.
4. Persons Excluded from the Settlement Class
7

No members of the Hill Action Settlement Class requested exclusion from the Hill Action Settlement Class. As such, all persons meeting the definition of a Class Member (see above) are bound by the release in the Hill Action Settlement.
Several individuals have objected to being excluded from the class in this case. To put these claims into perspective, some background may be useful. Because Merrill Gardens did not maintain applicant data or applications from all applicants before approximately April 2004, as part of the resolution of this case the parties agreed to a period to advertise for Unknown Class Members. When individuals came forward in response to that advertising, the EEOC interviewed them to determine if they met the agreed-upon criteria to be a Class Member in this case, criteria that the Court preliminarily approved in its Order of June 20, 2005. Among other things, the EEOC questioned the individuals about the Merrill Gardens' facility in Fort Wayne and the application process. There are other facilities near Georgetowne Place that have commonly been confused with it. Based on an individual's description of the facility or process, the EEOC was able to gain some insight into whether the individual actually applied at Georgetowne Place. Merrill Gardens compiled lists of employee hired and provided those lists to the EEOC, which the EEOC used to see if an open position existed at Georgetown Place at any given time for a particular position, and to see if the position was given to another minority.
The Court received written objections from Lawrence T. Brooks, Sr.; Robert Warren Hagler, Jr.; Vickie Hill; Robert L. Guy, Jr.; Marcus E. Mitchell; Elmo R. Portee, Jr.; Tony Lamar Robertson; and Alexis Smith.
Lawrence T. Brooks did not appear at the fairness hearing. His written objection states that he applied April 15, 2005. The EEOC presented evidence that Mr. Brooks applied for a position as
8

dishwasher and that Merrill Gardens filled that position with an African American on May 9, 2005. Thus, the position for which Mr. Brooks applied was given to a minority, and Mr. Brooks does not meet the criteria to be considered an Unknown Class Member in this case.
Anitera Fowler did not appear at the fairness hearing. In her objection she writes that she applied at Georgetowne Place in 2002. The EEOC presented evidence that Ms. Fowler stated that she applied for a position as receptionist, but that no such position was available in 2002. The EEOC also presented evidence that Ms. Fowler vacillated on the time when she applied, at various times stating that she applied no later than 2000, and after September 2001, and in 2001 or 2002. As a result, the EEOC was unable to determine if there was an open position at the time Ms. Fowler applied. The Court now finds that there was no open position for receptionist at the time Ms. Fowler applied at Merrill Gardens.
Robert Guy testified that he applied for a cook or dishwasher position with Merrill Gardens in June or July 2002 and July or August 2004. He testified that the building was not locked when he applied and that he was allowed to take the applications from the building to fill them out. The EEOC presented evidence that there were no cook or dishwasher positions available in June or July 2002. Further, the EEOC presented evidence that Merrill Gardens hired minorities as cook and dishwashers in July 2004. Finally, the EEOC presented evidence that Merrill Gardens had a uniform policy not to allow applications to be removed from the building and that the facility was protected by a security system, which meant that all persons entering the building had to be buzzed in. The Court now finds that Mr. Guy did not apply for a job with Merrill Gardens and, even if he had applied, there were no cook or dishwasher positions available in June or July 2002, and Merrill Gardens hired minorities as cook and dishwashers in July 2004.
9

Robert Hagler did not appear at the fairness hearing. His written objection states that he applied for a position as cook. The EEOC presented evidence that Mr. Hagler said that he applied for a position as line cook early in 1999, but no such position was then available at Georgetowne Place. Further, the EEOC presented evidence that Mr. Hagler's description of the facility was inaccurate or incorrect. Specifically, Mr. Hagler stated that he walked right into the building, that he could not see any other rooms while in the lobby, and that he sat in the lobby and filled out the application on his lap because there were no tables. The EEOC presented evidence that the building was protected by a security system, which meant that all persons entering the facility had to be buzzed in, that other rooms were visible from the lobby, and that applicants were escorted to one of two rooms at the facility, either a billiards room or a gathering room, where there were tables on which to fill out the application. The Court now finds that Mr. Hagler did not apply for a position with Merrill Gardens, but even if he did, there were no openings at the time he applied for a job as cook.
Vickie Hill appeared at the fairness hearing in person and by counsel, Edward Smith. She testified that she applied to be a server at Merrill Gardens in the spring of 2001. She testified that the building was not locked when she applied, that there was a sliding glass window at the reception area where she got and returned an application, and that she filled out the application in the dining area near the reception desk. The EEOC presented evidence that the building was protected by a security system, which meant that all persons entering the facility had to be buzzed in, that the reception desk was open and had no sliding window of any sort, and that the dining area was on the third floor. The Court now finds that Ms. Hill failed to furnish competent evidence that would support a finding that Ms. Hill applied for a job with Merrill Gardens. Her objection is therefore
10

denied. Marcus Mitchell testified that he applied for a job as dishwasher in April 2005. On May 9,
2005, Merrill Gardens filled that position with an African American. Thus, the position for which Mr. Mitchell applied was given to a minority and Mr. Mitchell does not meet the criteria to be considered a Class Member in this case.
Elmo Portee did not appear at the fairness hearing. His written objection states that he applied at Merrill Gardens in the summer of 2002 for a dietary or housekeeping position. The EEOC presented evidence that no such positions were available in June or July of 2002 and that Mr. Portee stated he got a job by August 2002. Further, the EEOC presented evidence that Mr. Portee claimed he took home an application from Merrill Gardens to fill it out, but Merrill Gardens had a uniform policy not to allow applications to be removed from the building. The Court now finds that Mr. Portee failed to produce competent evidence that supports a finding that Mr. Portee applied for a job with Merrill Gardens. Even if he had applied, however, there were no open dietary or housekeeping positions in June or July 2002. Consequently, Mr. Portee does not meet the criteria to be a Class Member in this case.
Tony Lamar Robertson testified at the fairness hearing that he applied at Merrill Gardens. Among other things, he testified that he applied once in 2003 and perhaps twice in 2004, in November 2004 or later. He stated that he filled out the application in the lobby area, in a chair, perhaps using a clipboard provided by Merrill Gardens. He also stated that the reception area was toward the back of the facility. In contrast, the EEOC presented evidence that Merrill Gardens does not have an application from Mr. Robertson at a time (November 2004 and later) when it appears reasonably certain that Merrill Gardens has retained all applications. Further, the EEOC presented
11

evidence that the uniform policy at Merrill Gardens was to escort applicants to one of two rooms at the facility, either a billiards room or a gathering room, and was not to provide applicants with a clipboard. In addition, the evidence showed that the reception area at Merrill Gardens was not as has been described by Mr. Robertson. Accordingly, the Court concludes that Mr. Robertson failed to produce competent evidence sufficient to support a finding that Mr. Robertson applied for a job with Merrill Gardens.
After the fairness hearing, Mr. Robertson tendered to the Court a letter with which he enclosed a business card from Georgetowne Place. He refers to the business card as "supporting evidence" and states that the receptionist at Georgetowne Place handed the card to him at the time he submitted his application. Yet, the card does not explain any of the deficiencies in Mr. Robertson's presentation that the Court noted in the preceding paragraph. Further, Mr. Robertson did not mention at the fairness hearing that he had further evidence or supporting evidence. Indeed, when the Court asked Mr. Robertson if he had any further evidence to present, Mr. Robertson responded that he did not. He has not shown any reason here to allow the presentation of further evidence, nor have the parties had an opportunity to cross-examine Mr. Robertson regarding the business card. For all of these reasons, and the reasons in the preceding paragraph, the Court denies and overrules Mr. Robertson's objection.
Alexis Smith was called to testify at the fairness hearing, but after diligent search was not found to be present at court. Her written objection alleges that she satisfies the criteria to be a member of the Unknown Class in this case. The EEOC presented evidence that Ms. Smith stated that she applied for a position in dietary or laundry in September 2004 and that Merrill Gardens does not have an application from Ms. Smith. It appears reasonably certain that Merrill Gardens has
12

retained all applications from that time period. The Court concludes that Ms. Smith has failed to produce competent evidence that Ms. Smith applied for a job with Merrill Gardens. Therefore, her objection is denied.
The Court also received a written objection from Rodney Woods, but counsel for the EEOC explained during the fairness hearing that the Commission erroneously sent Mr. Woods notice that he would not be in the class, which was corrected after Mr. Woods filed his objection with the Court. Mr. Woods acknowledged receipt of a notice from the EEOC informing him that he would be a member of the Unknown Class in this case, and the Court so finds him to be. Accordingly, there is nothing for the Court to rule on regarding Mr. Woods' objection.
Chakia Robertson claimed that she sent a written objection to the Court and attorneys on September 2, 2005. However, neither the Court nor any of the attorneys received such an objection. Ms. Robertson appeared at the fairness hearing and testified that she applied at Merrill Gardens in the summer of 2001 and around Christmas 2002. Because she did not present a written objection to the Court in a timely manner, she waived her opportunity to object. But even on the merits, Ms. Robertson's objection fails. Ms. Robertson testified that she saw a "Now Hiring" sign on the gate outside Merrill Gardens. She also testified that she applied just before she graduated from high school, which was in May 2002. The EEOC presented evidence that Ms. Robertson told them that she applied in May 2002 for a position in housekeeping, but that there were no open positions in May and June 2002. Further, the EEOC presented testimony that Merrill Gardens hired a minority in January 2003 in the position for which Ms. Robertson was allegedly applying. The EEOC also presented evidence that Merrill Gardens did not at any time hang a "Now Hiring" sign on its gate. The Court now finds that there were no open positions when Ms. Robertson applied in May 2002
13

and Merrill Gardens hired a minority in the position for which Ms. Robertson applied around Christmas 2002. Thus, Ms. Robertson does not meet the criteria to be a Class Member in this case. Debra Johnson did not file a written objection with the Court, but she appeared at the fairness hearing and testified that she applied for a housekeeping position at Merrill Gardens sometime between 1995 and 2000. Because she did not present a written objection to the Court in a timely manner, she waived her opportunity to object. But even on the merits, Ms. Johnson's claim fails. Ms. Johnson could not identify with any precision when she applied at Merrill Gardens. As a result, the EEOC was unable to determine if there was an open position at the time Ms. Johnson applied. The EEOC presented evidence that Ms. Johnson stated that she applied once when she worked for Parkview Hospital, perhaps as early as 1995, and Ms. Johnson admitted that she may have applied at Merrill Gardens before February 17, 1998. Consequently, the Court now finds that Ms. Johnson has not satisfied the criteria to be a Class Member in this case.
Roszetta Clark submitted an objection to class counsel on September 29, 2005, which class counsel has forwarded to the Court. The Court has reviewed Ms. Clark's objection and the EEOC's Response (also filed September 29th.) Ms. Clark states that she applied "at Georgetowne" in September 2001. She says that the receptionist handed her an application, which she filled out in her car. The evidence at the fairness hearing established that Georgetowne Place had a uniformly enforced policy not to allow applications out of the building. Accordingly, the Court concludes that Ms. Clark failed to produce competent evidence sufficient to support a finding that she applied for a job with Merrill Gardens. Therefore, Ms. Clark's objection is denied.
The Court independently concludes that the EEOC's determinations of Class eligibility by the EEOC are valid. Class Members are only those who meet the definition of Class Members set
14

forth above. Those who submitted objections do not meet each and every component of that definition. Those listed in the listing filed by the EEOC on September 1, 2005 do meet the definition of Class Members and, since these individuals submitted Releases acceptable to the Court and the parties, are entitled to settlement proceeds.
C. Final Approval of the Class Action Settlement In the Preliminary Approval Order, the Court found that the Settlement Agreement appeared
to be fair, reasonable, and adequate and clearly fell within the appropriate range of possible approval. In essence, the Hill Action Settlement provides for each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release to receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree.
Therefore, taking into account the consideration set forth in the Settlement Agreement, the defenses asserted by Merrill Gardens (particularly defenses of causation, statute of limitations, and qualifications) and the risks of further litigation, the Settlement Agreement is fair, reasonable, and adequate. Moreover, the parties have reached the Settlement after an extended investigation and negotiation process. No objections were submitted regarding the appropriateness of the settlement. Accordingly, having considered the foregoing, the lack of opposition to the Settlement, the strength and weaknesses of the claims that have been and could be asserted on behalf of the members of the Settlement Class, the strengths and weaknesses of the defenses that have been and could be asserted by Merrill Gardens, the damages that have been and could be claimed on behalf of the members of the Settlement Class, the value of the Settlement, and the complexity, length, expense, and uncertain
15

outcome of continued litigation, and there being no suggestion of improper collusion among the parties, the Court finds that the Settlement is fair, reasonable, and adequate to members of the Settlement Class, and the Court hereby grants final approval of the Settlement Agreement and enters this Judgment implementing its terms. The Court hereby adopts and incorporates the terms of the Settlement Agreement for the purposes of this Order and Judgment, including the Definitions set forth in the Settlement Agreement. The Court also orders that a fully executed copy of the Settlement Agreement, as approved, be filed with the Court.
D. Payments Under the Settlement Agreement The Preliminary Approval Order anticipated payments by Merrill Gardens of an amount for
known class members in the amount of $325,000, and payment of up to $325,000 for class members not known at the time the Settlement Agreement was negotiated.
This Court approved Class Counsel's petition for an award of $100,000 in attorneys' fees and expenses, as negotiated by the parties. Such amount does not come from the amounts negotiated to be paid to known and unknown Class Members.
Now, for the purposes of consummating the administration of the Settlement, the Court orders as follows:
If, after 30 days from the entry by this Court of this Order and Judgment, no notice of appeal of this Judgment or any Order in this case has been filed, so that any right to take an appeal from this Judgment or from any such Order has been waived, or if each such appeal has been finally adjudicated and this Order and Judgment have been upheld in all respects by that final adjudication, Merrill Gardens shall make payments pursuant to the identical formula set forth in the approved
16

Settlement Agreement and the approved Consent Decree which are attached hereto as Exhibits "A" and "B," with the only modification being the $1,000 reduction for Elizebeth Worthman and the $1,000 additional payment to Class Representative Golda Bailey for her services in relation to the final hearing.
If any notice of an appeal from this Order and Judgment is timely filed by any party, objector, claimant, or other person, the Settlement Agreement and Consent Decree will not be or become final or effective, and no payment pursuant to the Settlement Agreement and/or Consent Decree shall be made to any eligible Class Member or Class Counsel, unless and until each such appeal has been finally adjudicated and this Order and Judgment have been upheld in all respects by that final adjudication; or if modified, accepted in writing, by the Class Representatives, Merrill Gardens, and the EEOC, as appropriate.
E. Releases, Covenant Not to Sue, and Effect of Settlement Agreement 1. Releases by Settlement Class Members
In consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who did not opt out of the Hill Action Settlement are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future officers, directors, employees, attorneys and representatives, or any of them, including any person or entity acting on behalf of or at the direction of any of them ("Released Parties") as set forth in the Release
17

set forth in the Court's Preliminary Order and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action—known or unknown—that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
2. Covenant Not to Sue
In consideration of the terms of the Settlement Agreement, all members of the Hill Action
Settlement Class, including Plaintiff Hill and Plaintiff Bailey, none of whom opted out of the
settlement, are hereby found, deemed, and adjudged to have (1) covenanted and agreed that neither
Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action Settlement Class Members, nor anyone
authorized to act on behalf of any of them, will hereafter commence, authorize, or accept any benefit
from any judicial or administrative action or proceeding, other than as expressly provided for in the
Settlement Agreement and/or Consent Decree, against the Released Parties, or any of them, in either
their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises
from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by the Released
Parties, or any of them, in connection with any application of employment at Merrill Gardens from
18

February 17, 1998 to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
3. Effect of a Final Judicial Determination of Invalidity or Unenforceability If, after the entry by this Court of this Judgment, a notice of appeal of this Judgment is timely
filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that this Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden's stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement or to the entry of the Consent Decree in the EEOC Action) shall be null and void, and the Parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and proposed Consent Decree, unless all Parties agree in writing to abide by the judgment as modified.
F. No Admission of Liability Nothing contained in the Preliminary Approval Order, this Order, or the documents
referenced therein and herein, shall be construed, deemed, or offered as an admission by any of the Parties for any purpose in any action or proceeding of any kind.
G. Entry of Final Judgment and Consent Decree
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The Court hereby orders the entry of, and enters a Final Judgment of Dismissal With Prejudice in the Hill Action, incorporating the provisions of this Order, including the releases and covenant not to sue, on all claims, counts, and causes of action alleged in this action by Plaintiff Hill and Plaintiff Bailey, on behalf of themselves and the Settlement Class, relating to applications for employment at Georgetowne Place. The Court contemporaneously enters the Consent Decree in the EEOC Action. The Court finds that after the Effective Date, pursuant to the Settlement Agreement and Consent Decree, Merrill Gardens shall pay those individuals identified in the Notice of EEOC's Determination of Class Members filed by the EEOC on September 1, 2005. The Court expressly retains jurisdiction over all matters relating to the administration and consummation of the Settlement Agreement and Consent Decree, including, but not limited to, final disposition of the financial consideration identified in the Settlement Agreement and Consent Decree.
SO ORDERED on October 6, 2005. S/ Theresa L. Springmann
THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

on Behalf of Themselves and Others )

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

)

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

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

CAUSE NO.:1:04-CV-248 CAUSE NO.: 1:05-CV-4

JOINT VERIFIED FINAL REPORT AND REQUEST FOR APPROVAL Comes now, Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), Plaintiffs William Anthony Hill (“Plaintiff Hill”) and Plaintiff Golda Bailey (“Plaintiff Bailey”), on behalf of themselves and others similarly situated, by counsel, Shane C. Mulholland and John T. Menzie of the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP, and Defendant Merrill Gardens LLC (“Defendant Merrill Gardens”) and hereby submit this Joint Verified Final Report and Request for Approval.

On October 6, 2005, this Court issued its Opinion and Order Granting Final Approval to Class Action Settlement, Entry of Final Judgment and Entering Consent Decree after conducting a full hearing and opportunity to be heard on September 9, 2005. Said Order:
1. Provided that the proposed Settlement Class and subclass satisfied the requirements of Rule 23(a) and (b)(3), granted final approval to plaintiffs Hill and Bailey as representatives of the settlement class and respective subclass and confirmed the appointment of John T. Menzie and Shane C. Mulholland as Class Counsel for purposes of implementing and carrying out the Class Action Settlement.
2. Gave final approval of the proposed Consent Decree in the EEOC action and gave final approval in the Hill/Bailey action under Rule 23 of the Federal Rules of Civil Procedure.
3. Found that the members of the settlement class were provided the best notice practicable and that such notice satisfied all requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.
4. Provided that no members of the settlement class and/or the respective subclass requested exclusion that all persons met the definition of a class member, the Court making determinations as to individual objections as to exclusion from the settlement class.
5. Made final approval of the class action settlement ordering payment to class and subclass members who had not opted out of the settlement and who had returned timely, executed Releases and approved payment of attorneys’ fees and expenses.
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Pursuant to the Court’s Order, payment was to be made by Defendant Merrill Gardens to known class members in the amount of Three Hundred Twenty Four Thousand Dollars ($324,000.00), and payment of up to Three Hundred Twenty Six Thousand Dollars and Eight Cents ($326,000.08) for class members not known at the time the settlement agreement was negotiated, payments to be made pursuant to the Class Action Distribution Spreadsheet attached hereto, made a part hereof and incorporated herein as Exhibit “A”. Class Counsel has issued payments to the class members, both known and unknown, pursuant to the Schedule attached hereto as Exhibit “A”.
The parties stipulate that the information and calculations set forth in Exhibit “A” hereto accurately reflect the amounts due to individual class and subclass members pursuant to this Court’s October 6, 2005 Order.
Moreover, Class Counsel represents that class and subclass members have satisfied all conditions precedent to receipt of payments including, but not necessarily limited to, execution of a Settlement Agreement and related documents within the requisite time. Class Counsel and class and subclass members as well as the EEOC agree that Defendant Merrill Gardens has no further contractual obligation to pay any further amounts arising out of, resulting from or related to this litigation and further stipulate and agree that no further payments will be paid or are due by Defendant Merrill Gardens to Class Counsel or any other class or subclass member or representative.
Moreover, by way of this Report, Class Counsel acknowledges receipt of payment for attorneys’ fees and other litigation related expenses as set forth in this Court’s October 6, 2005 Order.
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Class Counsel further represents by way of this Report that disbursement of all settlement checks were made to all class and subclass members in person by handdelivering same to each class and subclass member at the offices of Burt, Blee, Dixon, Sutton & Bloom, LLP at which time each class and subclass member executed an acknowledgment of Receipt of Payment with appropriate withholdings made as determined by the information provided by the class and subclass members by way of an Internal Revenue Service W-4 Form which had been submitted by each class and subclass member prior to disbursement contemporaneous with the execution of the Settlement Agreement; with the exception of Known Class Member, Elizebeth Worthman (“Worthman”), whose settlement check was mailed via certified mail, return receipt requested which was mailed on December 9, 2005. Class Counsel further reports that the certified return receipt (“green card”) was received by Class Counsel on December 12, 2005, acknowledging Worthman’s receipt of her settlement proceeds.
By way of this Stipulated Report, the parties hereby represent and agree that the parties have fully complied with the Court’s Order dated October 6, 2005 and the Courtapproved settlement agreement between Defendant Merrill Gardens and the Class as well as the Consent Decree between Defendant Merrill Gardens and the EEOC.
The parties hereto further request that this Court acknowledge that the parties have complied with their respective obligations concerning settlement and the disbursement of the settlement proceeds and request that this Court approve this Report and the actions described herein as being in compliance with this Court’s October 6, 2005 Order.
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VERIFICATION The undersigned attorneys confirm under the penalties for perjury that the foregoing representations are true and accurate.

BARNES & THORNBURG

Respectfully submitted, BURT, BLEE, DIXON, SUTTON & BLOOM, LLP

s/ Kathleen M. Anderson Kathleen M. Anderson, #16351-92 Tiffany L. Gooden, #24199-02 600 One Summit Square Fort Wayne, IN 46802 Telephone: (260) 423-9440 Facsimile: (260) 424-836 ATTORNEY FOR DEFENDANT

s/ Shane C. Mulholland John T. Menzie, #10255-02 Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne, IN 46802 Telephone:(260) 426-1300 Facsimile: (260) 422-2722 CLASS COUNSEL

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
s/ Kenneth Bird Kenneth Bird, #10780-02 101 West Ohio Street, Suite 1900 Indianapolis IN 46204-4203 Telephone: (317) 226-7204 ATTORNEY FOR EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

5

CERTIFICATE OF FILING I hereby certify that on 2006 April 11 I electronically filed the foregoing Joint Verified Report and Request for Approval with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to the following: Kathleen M. Anderson Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne IN 46802 John T. Menzie, #10255-02 Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne IN 46802
/s/ Kenneth L. Bird Kenneth L. Bird, #10780-02 Senior Trial Attorney Equal Employment Opportunity
Commission 101 W. Ohio St., Ste 1900 Indianapolis IN 46204-4203 Phone: (317) 226-7204 Fax: (317) 226-5571 email: Kenneth.Bird@eeoc.gov
6

COURT APPROVAL AND FINAL ORDER The Court approves the above-referenced Report and the actions described therein as being in compliance with this Court’s October 6, 2005 Order. Upon the representations made herein, that Defendant Merrill Gardens has made the requisite payments and that said payments were distributed to class and subclass members and that all attorneys’ fees and litigation related expenses are hereby acknowledged to have been paid and that no other additional payments to Class Counsel or to class and sub class members are required, this Court finds that all terms and conditions finalizing the Class Action Settlement have been completed. APPROVED this _______ day of April, 2006.

Dated:

Judge, United States District Court

7

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

on Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

)

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

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

CAUSE NO.:1:04-CV-248-TLS CAUSE NO.: 1:05-CV-4-TLS

JOINT VERIFIED FINAL REPORT AND REQUEST FOR APPROVAL Comes now, Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), Plaintiff William Anthony Hill (“Plaintiff Hill”), and Plaintiff Golda Bailey (“Plaintiff Bailey”), on behalf of themselves and others similarly situated, by counsel, Shane C. Mulholland and John T. Menzie of the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP, and Defendant Merrill Gardens LLC (“Defendant Merrill Gardens”) and hereby submit this Joint Verified Final Report and Request for Approval.

On October 6, 2005, this Court issued its Opinion and Order Granting Final Approval to Class Action Settlement, Entry of Final Judgment and Entering Consent Decree after conducting a full hearing and opportunity to be heard on September 9, 2005. Said Order:
1. Provided that the proposed Settlement Class and subclass satisfied the requirements of Rule 23(a) and (b)(3), granted final approval to plaintiffs Hill and Bailey as representatives of the settlement class and respective subclass and confirmed the appointment of John T. Menzie and Shane C. Mulholland as Class Counsel for purposes of implementing and carrying out the Class Action Settlement.
2. Gave final approval of the proposed Consent Decree in the EEOC action and gave final approval in the Hill/Bailey action under Rule 23 of the Federal Rules of Civil Procedure.
3. Found that the members of the settlement class were provided the best notice practicable and that such notice satisfied all requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.
4. Provided that no members of the settlement class and/or the respective subclass requested exclusion that all persons met the definition of a class member, the Court making determinations as to individual objections as to exclusion from the settlement class.
5. Made final approval of the class action settlement ordering payment to class and subclass members who had not opted out of the settlement and who had returned timely, executed Releases and approved payment of attorneys’ fees and expenses.
2

Pursuant to the Court’s Order, payment was to be made by Defendant Merrill Gardens to known class members in the amount of Three Hundred Twenty Four Thousand Dollars ($324,000.00), and payment of up to Three Hundred Twenty Six Thousand Dollars and Eight Cents ($326,000.08) for class members not known at the time the settlement agreement was negotiated, payments to be made pursuant to the Class Action Distribution Spreadsheet attached hereto, made a part hereof and incorporated herein as Exhibit “A”. Class Counsel has issued payments to the class members, both known and unknown, pursuant to the Schedule attached hereto as Exhibit “A”.
The parties stipulate that the information and calculations set forth in Exhibit “A” hereto accurately reflect the amounts due to individual class and subclass members pursuant to this Court’s October 6, 2005 Order.
Moreover, Class Counsel represents that class and subclass members have satisfied all conditions precedent to receipt of payments including, but not necessarily limited to, execution of a Settlement Agreement and related documents within the requisite time. Class Counsel and class and subclass members as well as the EEOC agree that Defendant Merrill Gardens has no further contractual obligation to pay any further amounts arising out of, resulting from or related to this litigation and further stipulate and agree that no further payments will be paid or are due by Defendant Merrill Gardens to Class Counsel or any other class or subclass member or representative.
Moreover, by way of this Report, Class Counsel acknowledges receipt of payment for attorneys’ fees and other litigation related expenses as set forth in this Court’s October 6, 2005, Order.
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Class Counsel further represents by way of this Report that disbursement of all settlement checks were made to all class and subclass members in person by hand-delivering same to each class and subclass member at the offices of Burt, Blee, Dixon, Sutton & Bloom, LLP at which time each class and subclass member executed an acknowledgment of Receipt of Payment with appropriate withholdings made as determined by the information provided by the class and subclass members by way of an Internal Revenue Service W-4 Form which had been submitted by each class and subclass member prior to disbursement contemporaneous with the execution of the Settlement Agreement; with the exception of Known Class Member, Elizebeth Worthman (“Worthman”), whose settlement check was mailed via certified mail, return receipt requested which was mailed on December 9, 2005. Class Counsel further reports that the certified return receipt (“green card”) was received by Class Counsel on December 12, 2005, acknowledging Worthman’s receipt of her settlement proceeds.
By way of this Stipulated Report, the parties hereby represent and agree that the parties have fully complied with the Court’s Order dated October 6, 2005, and the Court-approved settlement agreement between Defendant Merrill Gardens and the Class as well as the Consent Decree between Defendant Merrill Gardens and the EEOC.
The parties hereto further request that this Court acknowledge that the parties have complied with their respective obligations concerning settlement and the disbursement of the settlement proceeds and request that this Court approve this Report and the actions described herein as being in compliance with this Court’s October 6, 2005, Order.
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VERIFICATION The undersigned attorneys confirm under the penalties for perjury that the foregoing representations are true and accurate.

BARNES & THORNBURG

Respectfully submitted, BURT, BLEE, DIXON, SUTTON & BLOOM, LLP

s/ Kathleen M. Anderson Kathleen M. Anderson, #16351-92 Tiffany L. Gooden, #24199-02 600 One Summit Square Fort Wayne, IN 46802 Telephone: (260) 423-9440 Facsimile: (260) 424-836 ATTORNEY FOR DEFENDANT

s/ Shane C. Mulholland John T. Menzie, #10255-02 Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne, IN 46802 Telephone:(260) 426-1300 Facsimile: (260) 422-2722 CLASS COUNSEL

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
s/ Kenneth Bird Kenneth Bird, #10780-02 101 West Ohio Street, Suite 1900 Indianapolis IN 46204-4203 Telephone: (317) 226-7204 ATTORNEY FOR EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

CERTIFICATE OF FILING 5

I hereby certify that on 2006 April 11 I electronically filed the foregoing Joint Verified Report and Request for Approval with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to the following:
Kathleen M. Anderson Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne IN 46802 John T. Menzie, #10255-02 Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne IN 46802
/s/ Kenneth L. Bird Kenneth L. Bird, #10780-02 Senior Trial Attorney Equal Employment Opportunity Commission 101 W. Ohio St., Ste 1900 Indianapolis IN 46204-4203 Phone: (317) 226-7204 Fax: (317) 226-5571 email: Kenneth.Bird@eeoc.gov
6

COURT APPROVAL AND FINAL ORDER The Court approves the above-referenced Report and the actions described therein as being in compliance with this Court’s October 6, 2005, Order. Upon the representations made herein, that Defendant Merrill Gardens has made the requisite payments and that said payments were distributed to class and subclass members and that all attorneys’ fees and litigation related expenses are hereby acknowledged to have been paid and that no other additional payments to Class Counsel or to class and sub class members are required, this Court finds that all terms and conditions finalizing the Class Action Settlement have been completed. APPROVED this 12th day of April, 2006.
s/ Theresa L. Springmann THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
7

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL, and

)

ELIZABETH A. WORTHMAN,

)

on Behalf of Themselves and Others )

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

MERRILL GARDENS, INC., d/b/a

)

GEORGETOWN PLACE,

)

)

Defendant.

)

CASE NO:1:04cv248

MEMORANDUM IN SUPPORT OF MOTION TO CONDITIONALLY CERTIFY A SETTLEMENT CLASS, APPROVE CLASS REPRESENTATIVE AND APPOINT CLASS COUNSEL, PRELIMINARILY APPROVE SETTLEMENT, APPROVE AND ORDER CLASS NOTICE TO BE GIVEN AND SCHEDULE FAIRNESS HEARING
Come now, Plaintiffs, William Anthony Hill (“Hill”) and Elizebeth A. Worthman (“Worthman”), (collectively “Plaintiffs”), individually and on Behalf of Themselves and Others Similarly Situated, by their undersigned attorneys and in support of their Motion to Conditionally Certify a Settlement Class, Approve Hill as Class Representative and Appoint Class Counsel, Preliminarily Approve Settlement, Approve and Order Class Notice to Be Given and Schedule Fairness Hearing, hereby submits the instant Memorandum in support thereof.
I. BACKGROUND
A. Brief History of the Case
On June 25, 2004, Plaintiffs brought the instant action (“litigation”) on behalf of

themselves and others similarly situated claiming that they and others were denied employment at Georgetown Place Communitylocated at1717 Maplecrest Road,Fort Wayne, Indiana owned byMerrill Gardens, L.L.C.(“Merrill Gardens”) and that the denialofemployment was on the basis of race/color in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and §1981 of the Civil Rights Act of 1866, 42 U.S.C. §1981.
On January 4, 2005, the Equal Employment Opportunity Commission (“EEOC”) filed a “companion” suit against Merrill Gardens (the “EEOC Action”) under authority granted by 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 -6 (“Title VII”); and Section 102 of Title I of the Civil Rights Act of 1991, 42 U.S.C. §1981(a). The EEOC’s Complaint alleged that Merrill Gardens had a pattern and/or practice of refusing to hire non-Caucasians because of their race and/or color, in violation of Section 703(a) of Title VII, 42 U.S.C. §2000e-(2)(a); alleged that Merrill Gardens failed, in violation of Section of 709(c), 42 U.S.C. §2000e-8(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or were being committed; and sought appropriate relief for named Plaintiffs Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged illegal hiring practices of Merrill Gardens.
On April 18, 2005, Plaintiffs, by counsel, the EEOC and Merrill Gardens participated in a Judicial Settlement Conference which resulted in settlement. The proposed Settlement Class satisfies all the requirements of Federal Rule of Civil Procedure 23. The proposed Settlement Class is unified by their common status as applicants for employment, either
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known or unknown who applied, but were denied employment because of their race between February 17, 1998 and April 18, 2005. The proposed settlement achieved by the parties by way of the April 18, 2005 Judicial Settlement Conference is fair, adequate and reasonable in that cash compensation will be paid to qualifying settlement class members.
Notice will be published in newspapers of general circulation in the Fort Wayne area including the Fort Wayne Journal Gazette, News Sentineland Frost Illustrated. Notice of class action, proposed settlement and fairness hearing will be sent to the putative members of the Settlement Class. Furthermore, notice will take place by way of radio advertisements in the Fort Wayne geographic area. Said Notices will notify putative class members of the deadline for filing objections to the proposed settlement, theirabilityto opt out, and the process for filing requests to appear at the Final Fairness Hearing which will be scheduled to permit all interested parties to have an opportunity to present arguments and evidence in support of or in opposition to the proposed settlement agreement. B. Settlement Negotiations
After suit was filed by the Plaintiffs on June 25, 2004, in addition to participation in an EEOC sponsored mediation in the later part of 2004, the parties discussed various issues involving settlement including incorporating the Court’s assistance in setting the matter for a Judicial Settlement Conference. On April 18, 2005, a Judicial Settlement Conference was conducted with Magistrate Roger B. Cosbey. Present at said settlement conference were counseland representatives from Merrill Gardens, counsel from the EEOC,class counsel, and the individually named plaintiffs in both the instant litigation and the EEOC action. Meaningful settlement discussions were held and settlement was achieved, resulting in a fair and
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reasonable settlement on behalf of the class.

C. Proposed Settlement Agreement

The named Plaintiffs now move this Court to certify a settlement class consisting of all persons in the Settlement Class as more specifically set forth and otherwise defined in the

Settlement Agreement. Plaintiffs also hereby move this Court to preliminarily approve the proposed Settlement Agreement which sets forth, in detail, the terms and conditions of the

settlement, approve Hill as Class Representative and John T. Menzie and Shane C. Mulholland as Class Counsel, approve and order Class Notice and schedule a Final Fairness

Hearing.

II. DISCUSSION

A. The Proposed Settlement Class Should be Conditionally Certified

Under Rule 23 of the Federal Rules of Civil Procedure, the Court must find that the

proposed class satisfies requirements of subdivisions (a) and (b). Amchem Products Inc.

v. Windsor, 521 U.S. 591, 618 (1997). The Settlement Class proposed herein satisfies those

requirements and is otherwise maintainable as a class action under Rule 23(b)(3). The 7th Circuit sets out in summary fashion the requirements of Rule 23(a) in Keele v.

Wexler, 149 F.3d 589, 594 (7th Cir. 1998):

Rule 23 of the Federal Rules of Civil Procedure recites four threshold requirements applicable to all federal-court-class actions: (1) numerosity (the class must be so large “that joinder of all members ins impracticable”); (2) Commonality (there must exist “questions of law or fact common to the class”); (3) Typicality (name of parties’ claims or defenses “are typical . . . of the class”); and, (4) adequacy of representation (the representative must be able to “fairly and adequately protect the

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interest of the class”). Keele, 149 F.3d at 594.
Because the commonality and typicality requirements are so closely related, those two elements will be analyzed together.
1) Numerosity is Satisfied Rule 23 Requires that a class must be so numerous such that joinder of all members proves impracticable. Swanson v. American Consumer Indus., Inc., 415 F.2d 1326 (7th Cir. 1969) (citing Rule 23(a)(1) (40 constitutes a sufficiently large group to satisfy Rule 23(a)). The proposed settlement class satisfies the numerosity requirement. The settlement class consists of both known and unknown class members. Known class members consist of six (6) individual plaintiffs. Although the unknown class members are yet to be determined, it consists of all African American and other minorities who submitted applications for employment at Merrill Gardens between February 17, 1998 and April 18, 2005 for vacant positions who were denied employment - a number believed to be sufficient to satisfy the numerosity requirement of Rule 23(a). 3. Commonality and Typicality are Satisfied The second prerequisite, commonality, calls for the presence of “questions of law or fact common to the class.” Fed. R. Civ. Pro. 23(a)(2). “A common nucleus of operative fact” is generally enough to satisfy the commonality requirement of Rule 23(a)(2).” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992), cert. denied, 506 U.S. 1051, 1113 S.Ct. 972
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(1993); Keele v. Wexler,149 F.3d 594 (7th Cir. 1998); Augelli v. Goggins & Lavintman,P.A., 1998 W.L. 842348 (N.D. Ill. 1998); see also Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D. Ill. 1988) (finding requirement met where all class members had at least one element of their causes of action in common).
The commonality requirement has been described as follows: Commonality does not require that all questions of fact or law be identical. Factual variations among class grievances does not defeat a finding of commonality. Rather, this requirement is satisfied as long as “the class claims arise out of the same legal or remedial theory.
Johns v. DeLeonardis, 145 F.R.D. 480, 483 (N.D. Ill. 1992). It is enough to satisfy commonality that there be a “common question . . . at the heart of the case . . .” Hubler Chevrolet, Inc. v. General Motors Corp., 192 F.R.D. 574, 577 (S.D. Ind. 2000).
The typicality requirement is closely related because it is met if the named plaintiffs’ claims arise from the same practice or course of conduct that gives rise to the claims of other class members and where said claims are based on the same legal theory. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). The typicality requirement is designed to align the interest of the class and class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals. In rePrudential Ins. Co., 148 F.3d 283, 311 (3rd Cir. 1998).
Here, the questions of law and fact are common to the class and predominate over questions affecting any individual class member. All putative class members, know and
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unknown, consist of African-American and/or other non-Caucasians who submitted applications for employment at Georgetown Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens, L.L.C. between February 17, 1998 and April 18, 2005 for vacant positions who were denied employment for such vacant positions.
The common questions which satisfy the commonality requirement of Rule 23(a)(2) also satisfy the typicality requirement of Rule 23(a)(3). Here, the settlement class share the same allegations of discrimination; share the same basis claims for payment of damages as a result of the alleged discrimination; and all share the same interests in proving discrimination on behalf of Merrill Gardens. The proposed settlement class meets the typicality requirement of Rule 23(a)(3). 3. The Proposed Class Representatives Have Fairly and Adequately Protected the Interest of the Class
As set forth in Rule 23(a)(4), the representative parties must fairly and adequately protect the interest of the class. Fed. R. Civ. P. 23(a)(4). This requirement comprises of two elements, one related to the class representatives and the other to the class counsel. The class representatives must avoid antagonistic interest with their class members and class counsel must be qualified and experienced. In re: Asbestos Litigation, 90 F.3d 963, 977 (5th Cir. 1996) (requirement encompasses both class representatives and class counsel). A class representative is not an inadequate representative merely because the party will not bear responsibility or all, or even a large part of, the cost of the suit. Rand v. Monsanto Corp., 926 F.2d 596 (7th Cir. 1991). The proposed class representative and class counsel satisfy both prongs of this prerequisite.
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Although a court may refuse class certification when disparate interests are present within a class or where the named representatives have interests antagonistic to those of unnamed class members, see Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999); Stout v. J.D. Byrider, 228 F.3d 709, 717-718 (6th Cir. 2000). This is not an issue here. The proposed class representative, like those of the class, applied for, but did not receive consideration for vacant positions at Merrill Gardens. The putative class representative has maintained sufficient knowledge and ability to protect the interests of the class and has accepted the responsibilities of class representative in acting to further the interests of the entire class in agreeing to serve as class representative. In doing so, the prospective class representative does not expect additional payments above and beyond those of his other known class members for his role as class representative.
Moreover, the undersigned should be appointed as class counsel. Generally, courts are to presume competency of class counsel in the absence of proof to the contrary by the defendant. See Hubler Chevrolet, Inc. v. General Motors Corp., 193 F.R.D. 574, 578 (S.D. Ind. 2000). Moreover, the undersigned are experienced in the areas of labor and employment law and both have appeared before this Court in many such matters representing both plaintiffs and defendants. Class Counsel has the qualifications, skills and experience sufficient to adequately represent the interest of the Settlement Class in a competent fashion.
4. The Proposed Settlement Class Satisfies the Additional Requirements of Rule 23(b) Rule 23(b) of the Federal Rules of Civil Procedure provides additional prerequisites
for maintaining a class action once the requirements of subdivision (a) have been met. 5 -8-

MOORES FEDERAL PRACTICE §23.40-23-49 (Matthew Bender 3d ed.). Subdivision (b)(1) contains two subparts: (A) Permits a class suit when the prosecution of separate actions by or against individual members of the class would create a risk of “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” The emphasis on this subpart is on protecting the party opposing the class from inconsistent or varying adjudications, and requires instead thatthe claims, with regard to the class, be litigated in one lawsuit. 5 MOORE’S FEDERAL PRACTICE §23.41 (Matthew Bender 3rd ed). The fact that one defendant may be found liable for damages to one claimant but not to others is not an “inconsistent or varying adjudication.” Id. Instead, the rule requires that the relief requested by the class members be incompatible if separate suits were brought . Id. Subdivision(b)(1)(B) permits class actions when the presentation of a separate action by or against individual members of the class would create a risk of “adjudications with respect to the individual members of the class which would as a practical matter be dispositive of the interest of the other members not parties to the adjudications or would substantially impair or impede their ability to protect their interest.” Fed. R. Civ. Pro. 23(b)(1)(B). Moreover, an action may proceed as a class action under Rule 23(b)(3) if the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that class action is the superior method for the fair and efficient adjudication of the controversy. Fed. R. Civ. Pro. 23(b)(3).
This action is ripe for class certification. All class members have potential causes of action against Merrill Gardens with the common thread that questions of law and fact are
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common to each in that said questions of law or fact predominate over any other question which may affect individual class members. The proposed class is sufficiently cohesive to warrant adjudication by class representation. The Southern District of Indiana in Hubler, 193 F.R.D. at 580 described the “predominance” requirement as follows:
Predominance is met when one or more of the central issues in the action are common to the class and can be said to predominate . . . Satisfying this criterion “normally turns on the answer to one basis question: is there an essential factual link between all class members and the defendant for which the law provides a remedy?” Hubler, 193 F.R.D. at 580. Here, there exists essential factual links between the prospective class members. The common nucleus of operative facts include allegations that Merrill Gardens intentionally discriminated against applicants of color. As a result, potential class members were denied employment for vacant positions. All members of the putative settlement class suffered damage by Merrill Gardens’ common course of conduct such that class certification is appropriate. Moreover, class action is the superior method in which to ensure the fair and efficient adjudication of the instant controversy. See Fed. R. Civ. Pro. 23(b)(3). As stated supra, the claims settled here arise from the same core of operative facts resulting inthe same or similar harm to all class members. The proposed settlement will ensure that the class members claims will proceed inanefficient manner resulting in a fair resolution when compared with the potential of multiple actions stemming from the common and predominate facts. B. The Proposed Settlement is Fair, Adequate and Reasonable
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Whenreviewing a settlement in a class action, a court must determine whether itis fair, adequate, and reasonable. 5 MOORE’S FEDERAL PRACTICE, §23.85 (Matthew Bender, 3rd ed.); D’Amato v. Deutsche Bank, 236 F.3d 78, 86-87 (2nd Cir. 2001) (settlement was fair, adequate, and reasonable when amount of relief was appropriate in light of risks of litigation and compromise was reached as a result of arm’s length negotiations); Dunleavy v. Nadler, 213 F.3d 454, 458, 460 (9th Cir. 2000) (affirming approval of settlement as fair and adequate given among other factors, difficulty of proving case and the amount offered in settlement); Thomas v. Albright, 139 F.3d 227, 231-233 (D.C. Cir. 1998) (approving settlement when relief provided to class as a whole was fair, adequate, and reasonable, even if certain individuals might have been able to obtain more in individual suits).
Approval of class action settlements is a two-step process. First, courts are to make a preliminary evaluation of the fairness of the settlement. Where the proposed settlement appears to be the product of serious, informed, noncollusive negotiations in which the class members’ claims were fairly and vigorously advocated, and where the proposed settlement has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments, and falls within the range of possible approval, preliminary approval should be granted. See Donovan v. Estate of Fitzsimmons, 778 F.2d 298 (7th Cir. 1985); MANUAL FOR COMPLEX LITIGATION, 3RD SECTION 30.41.
Once preliminary approval is granted, the second step requires notice of a hearing to be given to class members at which time class members and settling parties may be heard in support of or in opposition to the settlement. MANUAL FOR COMPLEX LITIGATION, 3RD SECTION 30.41. The notice must inform the class members of the binding nature of the
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litigation, the right to opt out of the binding effect of the judgment, and the opportunity to enter the action through an appearance of personal counsel. 5 MOORE’S FEDERAL PRACTICE, §23.62, 23.63 (Matthew Bender, 3rd ed.); Phillips Petroleum Company v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed. 2d 628 (1985) (due process requires at minimum that absent class members be provided with opportunity to opt out of class).
The district court may properly retain jurisdiction to ensure compliance with the settlement agreement entered and such retention of jurisdiction is consistent with the court’s responsibilities under Rule 23 to protect the interest of the class members. Alexander v. Chicago Park District, 927 F.2d 1014 (7th Cir. 1991). The 7th Circuit clearly recognizes the authority of district courts to retain jurisdiction over settlement agreements they have entered and such power is enhanced when a court is attempting to protect members of a class action. Id.
The proposed settlement agreement is the product of extensive, meaningful arm’slength negotiations between qualified experienced counsel on behalf of Merrill Gardens, the EEOC, and Class Counsel. There has been no collusion in negotiating the proposed settlement agreement. In fact, settlement was reached with the assistance of this Court by way of a Judicial Settlement Conference which was held on April 18, 2005 lasting some 13 plus hours. The proposed settlement agreement does not favor the class representatives or any segment of the settlement class.
The provisions of the settlement agreement was the subject of significant negotiations resulting in favorable terms for both parties, but at the same time reflect mutual concessions. Counsel for the Merrill Gardens, EEOC and Class Counsel believe that the proposed
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settlement is fair and reasonable in light of the circumstances as reflected by the Consent Decree and related documents. See Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996) (the district court was entitled to give consideration to the opinion of competent counsel that the settlement was fair, reasonable, and adequate.) These factors, when considered in their totality, show that the settlement reached at the Judicial Settlement Conference and further memorialized in the Settlement Agreement is fair, reasonable and adequate and should, therefore, be approved. C. Class Notice Should be Approved
The notice must inform the class member ofthe binding nature of the litigation, the right to opt out of the binding effect of the judgment, and the opportunity to enter the action through an appearance of personal counsel. 5 MOORE’S FEDERAL PRACTICE §23.62, 23.63 (Matthew Bender, 3rd ed.); Phillips Petroleum Company v. Shutts, 472 U.S. 797 (1985). A notice of class settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure must describe the settlement sufficiently to offer class members an opportunity to present objections. In re: Agent Orange Product Liability Litigation, 597 F.Supp 740, 759 (E.D. N.Y. 1984) aff’d 818 F.2d 145 (2nd Cir.). The notice of class settlement need not necessarily attach a copy of the settlement agreement provided a general description of the settlement terms and conditions contained therein. Id. Said notice must state the options open to dissenting class members and must be mailed out in a reasonable time in order to permit class members to investigate and reflect upon the matters before taking a position. Id. Copies of the proposed notices have been previously submitted to this Court for review. These notices comply with the
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requirements discussed above, and therefore, should be approved as presented. D. Final Fairness Hearing Should Be Scheduled
Plaintiffs further request that a Final Fairness Hearing be scheduled to give all interested parties an opportunity to comment on the proposed settlement and decide any objections from Merrill Gardens concerning the makeup of the settlement class as more specifically set forth in Section 403 of the Proposed Consent Decree. At said Fairness Hearing, arguments and evidence may be presented in support of and in opposition to the settlement. The hearing will provide a forum to those who object and for this Court to gather any and all necessary information to rule on whether the proposed settlement agreement is fair, reasonable and adequate and further decide, to the extent necessary, what individuals will be included in the class. Plaintiffs request that the Court schedule the hearing no sooner than thirty (30) days after notices are sent to all known and unknown putative class members.
III. CONCLUSION For the reasons as more specifically outlined above, Plaintiffs’ request that this Court: (1) Conditionally certify the settlement class; (2) Approve class representatives and appoint class counsel; (3) Preliminarily approve settlement; (4) Order class notice to be given; and (5) Schedule a Final Fairness Hearing at a date and time convenient for this Court
and all parties hereto.
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Respectfully submitted,
BURT, BLEE, DIXON, SUTTON & BLOOM, LLP
s/ Shane C. Mulholland John T. Menzie, #10255-02 Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne, IN 46802 Telephone:(260) 426-1300 Facsimile: (260) 422-2722 Attorneys for Plaintiff
CERTIFICATE OF SERVICE
This is to certify that a copy of the above and foregoing Memorandum was served on
the following by CM/ECF, U.S. Mail, First Class Postage prepaid, Courthouse Mail or Hand
Delivery on this 20th day of May, 2005:
Kathleen M. Anderson Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne, IN 46802
Kenneth Bird Equal Employment Opportunity Commission 101 West Ohio Street, Suite 1900 Indianapolis, IN 46204

SCM/tmm
N:\SCM\Hill, Anthony\Motion Certification-Memorandum.wpd

s/ Shane C. Mulholland Shane C. Mulholland
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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiff, )

)

~

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.: 1:04-cv-248

SETTLEMENT AGREEMENT This Settlement Agreement is entered into between Plaintiff William Anthony Hill ("Plaintiff Hill") and Golda Bailey ("Plaintiff Bailey"), on behalf of themselves and the Settlement Class, as defined below, and Merrill Gardens LLC ("Merrill Gardens"), to fully and finally settle all of the claims that have been or could have been brought relating to the abovereferenced litigation and applications for employment by African-Americans or other minorities at Merrill Gardens. I. Definitions. As used throughout this Settlement Agreement, in addition to any definitions elsewhere in the Settlement Agreement, the following terms shall have the meanings set forth below: A. The "Applicable Period" shall mean the period of February 17, 1998 to April 18, 2005. B. "Georgetowne Place" means the retirement community located at 1717 Maplecrest Road, Fort Wayne, Indiana, and owned by Merrill Gardens since February 17,1998.

C. "Plaintiff Hill" means William Anthony Hill. D. "Plaintiff Bailey" means Golda Bailey. E. "Parties" mean, collectively, Plaintiff Hill, Class Members, and Merrill Gardens. F. "Merrill Gardens" means Merrill Gardens LLC and its past, present, and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of its past, present, and future officers, directors, employees, attorneys, and representatives, and any of them, including any person or entity acting on behalf or at the direction of any of them. G. The "Hill Action" shall mean and include the above-captioned lawsuit and all claims that were brought or that could have been brought by Plaintiff Hill or any Settlement Class Member in that action, or in or before any administrative agency, or in any other action or proceeding (except the "EEOC Action," defined below), whether brought in an individual or representative capacity regarding applications of employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, and owned by Merrill Gardens ("Georgetowne Place") during the Application Period. H. The "EEOC Action" shall mean the action brought against Merrill Gardens by the Equal Employment Opportunity Commission ("EEOC") on January 4,2005, in the United States District Court for the Northern District of Indiana, Fort Wayne Division, as Case No.1 :05-CV004, and all claims that were brought or that could have been brought in that action, or before any administrative agency, or in any action or proceeding regarding applications for employment at Georgetowne Place during the Applicable Period. 1. The "Litigation" refers to the Hill Action and the EEOC Action collectively.
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J. "Settlement Class" or "Class Member" shall mean and include all persons within the description of the Settlement Class quoted below in Section ILE.
K. "Class Counsel" shall mean and include John T. Menzie and/or Shane C. Mulholland of the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP.
L. "Effective Date" shall mean and include the day on which the Order Granting Final Approval to Class Action Settlement, Entry of Final Judgment, and Entry of Consent Decree ("Final Order") described in Section lILH below becomes final. For purposes of this Settlement Agreement, the Final Order shall be deemed to become final on the later of (a) the day following the date on which the Final Order is no longer subject to review by appeal if no notice of appeal, motion to correct errors, or similar motion or notice is filed; or (b) if any such notices or motions are filed, on the day following the date on which the Final Order is not subject to further judicial review or appeal, either by reason of affirmance by a court of last resort or by lapse of time or otherwise.
M. "Release" means the Appendix to the Notice of Class Action, Proposed Settlement, Proposed Consent Decree, and Fairness Hearing, which is attached as Exhibit A-I. II. BACKGROUND FACTS.
A. On behalf of himself and others allegedly similarly situated, Plaintiff Hill claims in the Hill Action that applicants were denied employment at the Georgetowne Place community and that the denials of employment were on the basis of race/color, in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., and § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981.
B. The EEOC has claimed in the EEOC Action that Merrill Gardens had a pattern or practice of refusing to hire non-Caucasians because of their race and/or color, in violation of § 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a); alleged that Merrill Gardens failed, in violation
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of § 709(c), 42 U.S.C. § 2000e-(8)(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought appropriate relief for Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful employment practices. Each of these individuals is a part of the proposed class in the Hill Action.
C. Merrill Gardens denies that Plaintiff Hill, Plaintiff Bailey, or any Class Member would have been hired at Georgetowne Place but for hislher race and/or color and that any claim is or would be timely and therefore denies liability to Plaintiff Hill, Plaintiff Bailey, or the Settlement Class for any claims, causes of action, costs, expenses, attorneys' fees, or damages of any kind.
D. The Parties and the EEOC have engaged in substantial investigation to evaluate the merits of the claims of Plaintiff Hill, Plaintiff Bailey, and the Settlement Class and Merrill Gardens' defenses thereto, including, but not limited to, defenses of causation and limitations periods. The Parties have obtained substantial information and have thoroughly analyzed the factual and legal issues surrounding Plaintiff Hill's and Plaintiff Bailey's claims and Merrill Gardens' defenses.
E. The Parties seek certification of a class pursuant to Fed. R. Civ. P. 23 defined as follows:
All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates. The parties identify and seek approval of two subclasses:
4

The "Known Class": Class Members Caroline Aduro, Samantha Bolden, Jae1a Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman ("Known Class Members"), each of whom participated in the Hill Action and/or the EEOC Action on and/or prior to April 18, 2005. Members of the Known Class are identified as "Known Class Members." The "Unknown Class": Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as "Unknown Class Members." F. The Court gave preliminary approval to Plaintiff Hill as Class Representative.
The Court gave preliminary approval to Class Counsel John T. Menzie and/or Shane C.
Mulholland of the law firm Burt, Blee, Dixon, Sutton & Bloom, LLP.
G. Plaintiff Hill, Plaintiff Bailey, and their counsel have concluded that, in light of
the costs, risks, and delays inherent in litigation, it is in the best interest of Plaintiff Hill, Plaintiff
Bailey, and the Settlement Class to enter into this Settlement to assure a benefit to the Settlement
Class and to resolve their individual claims. Class Counsel has determined that the terms of the
class action settlement in this case are fair, reasonable, adequate, and in the best interest of
Plaintiff Hill, Plaintiff Bailey, and the members of the Settlement Class. H. Merrill Gardens has concluded that, in order to avoid the costs and risks of
ongoing litigation but without admitting the liability asserted by Plaintiff Hill, Plaintiff Bailey,
and Class Counsel, a settlement of the claims of Plaintiff Hill, Plaintiff Bailey, and the
Settlement Class in this case is appropriate. In this connection, Merrill Gardens agrees that the terms of the class action settlement in this case are fair, reasonable, and adequate.
I. The Parties desire to fully settle and compromise the Hill Action and all related
claims that were and/or could have been brought in it.
J. The Parties desire and intend to seek Court approval of this Settlement
Agreement, and the Parties intend to seek a Final Order from the Court dismissing with prejudice
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all claims of Plaintiff Hill, Plaintiff Bailey, and all members of the Settlement Class made in this Litigation as covered by the Release in Section III.K and in the attached Release. The Parties agree that this Settlement Agreement is final and enforceable only upon Court approval and is contingent upon approval of the Consent Decree in the EEOC Action. III. AGREEMENT.
In consideration of the agreements, promises, and mutual covenants set forth in this Settlement Agreement, the Release, the entry by the Court of a Final Order dismissing the Hill Action with prejudice and approving the terms and conditions of this Settlement Agreement, and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree that this action shall be settled and compromised under the conditions and terms set forth below. The Parties agree that this Settlement is contingent upon the approval of the proposed Consent Decree in the EEOC Action and that the monetary relief itemized in the proposed and contemporaneously negotiated Consent Decree is identical, and not in addition to, the consideration under this Settlement Agreement. A. Agreement on The Settlement Class.
1. For settlement purposes only, the Parties agree that the Settlement Class identified above in Section I1.E should be certified as an "opt-out" class under Fed. R. Civ. P. 23 (b)(2), (b)(3), and (c)(2).
2. Persons who timely submit requests for exclusion ("opt out") after notice of the conditional class certification order and preliminary approval by the Court will not be entitled to participate in the Settlement Class or to receive the financial consideration described in this Settlement Agreement or the Consent Decree.
3. Persons who do not opt out of the Settlement Class but who do not timely return executed Releases at least seven (7) days before the Fairness Hearing will be a part of the
6

Settlement Class but will not be entitled to receive financial consideration described in the Settlement Agreement. The only exception to this deadline for submission of executed Releases will be for those individuals who timely submit objections to the EEOC's preliminary determination that such individuals are not in the Class. If such individuals are determined to be in the Class, their executed Releases are due at the Fairness Hearing. Amounts assigned to Class Members (who do not opt out and who do not timely execute Releases) pursuant to Sections lILB and lILC will be distributed pursuant to this Settlement Agreement and the Consent Decree. B. Financial Consideration To The Known Class.
1. As consideration for this Settlement Agreement and proposed Consent Decree in the EEOC Action, assuming that each identified individual meets the eligibility requirements set forth in the Settlement Agreement and Consent Decree, Merrill Gardens will, within twenty (20) days after the Effective Date of the Final Order pay the amounts to Class Members which are set forth below:
a. Merrill Gardens shall pay $10,000, minus applicable taxes and withholdings, for alleged back pay to each of the Known Class Members, as defined herein and if eligible, or to their heirs or assigns in the event of an individual's death.
b. Merrill Gardens shall pay $50,000 for alleged compensatory damages (other than for wages) to Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, and William Hill, if eligible. Merrill Gardens shall pay $14,000 for alleged compensatory damages (other than for wages) to Elizebeth Worthman.
2. Class Counsel, independently or with or through the EEOC, within seven (7) days of the Final Fairness Hearing, will notify the Court and counsel for Merrill Gardens which Known Class Members did not opt out of the Settlement and who timely submitted executed Releases and completed IRS W-4 forms, and are therefore eligible for payment under the Settlement Agreement and Consent Decree, and will cause copies of such documents to be
7

forwarded to counsel for Merrill Gardens. Within twenty (20) days after the Effective Date,
Merrill Gardens shall mail appropriate payments for eligible Known Class Members via certified
mail, payable to eligible Known Class Members, or to any appropriate heir or assign in the event
of a Known Class Member's death. Absent alternate acceptable instruction, checks will be sent
to the following addresses:
Caroline Aduro 3410 Hawkechee Drive Fort Wayne IN 46815
Samantha Bolden c/o John T. Menzie/Shane C. Mulholland [or as otherwise timely updated] Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Jaela Brownlee 6226 Mayfair Road Fort Wayne IN 46818
Debra Edwards 5405 Scepter Court Fort Wayne IN 46835
William Hill c/o John T. Menzie/Shane C. Mulholland Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Elizebeth Worthman c/o John T. Menzie/Shane C. Mulholland Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Merrill Gardens shall prepare the checks in amounts determined under Paragraph III.B above.
Applicable taxes and withholdings shall be subtracted from the back pay amounts under
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Paragraph III.B.l.a pursuant to the IRS Forms W-4 completed and tendered to Merrill Gardens. If a Known Class Member fails to submit a completed IRS Form W-4 with hislher executed Release, then Merrill Gardens will make the maximum withholdings as set forth by law. Merrill Gardens will not deduct from any amount the employer's share of any costs, taxes, or social security required by law to be paid by Merrill Gardens. Further, Merrill Gardens will not withhold any amounts from the payments under Section III.B.1.b above. Merrill Gardens offers no tax advice or opinion regarding the tax consequences of the payments under Section III.B.1 to any Class Member.
Merrill Gardens shall promptly mail a copy of the checks and proof of their delivery (signed certified mail receipts) to Class Counsel. Class Counsel, on their own or with or through the EEOC, shall promptly provide Merrill Gardens with original Releases executed by Class Members.
If a Known Class Member does not return an executed Release, the Known Class Member will be ineligible for any payment under this Settlement Agreement and the Consent Decree, and any funds that claimant would have received shall be split equally among the remaining Known Class Members under this Settlement Agreement and the Consent Decree. C. Financial Consideration To The Unknown Class.
1. Merrill Gardens will pay an additional amount of up to $325,000 to approved Unknown Class Members, as defined above, who have executed and timely submitted Releases. Merrill Gardens will pay up to $54,166.67 to each approved, eligible Unknown Class Member, if no more than six Unknown Class Members come forward and meet all eligibility requirements (i.e., Merrill Gardens will pay $54,166.67 for each Unknown Class Member, $108,333.33 for two Unknown Class Members, etc. up to a cap of $325,000). If more than six Unknown Class Members meet the eligibility requirements for payment and are approved by the Court, the
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$325,000 will be divided equally among those Unknown Class Members who satisfy eligibility requirements.
2. If the number of eligible Unknown Class Members allows payments of at least $10,000 to each eligible Unknown Class Member pursuant to Section 403 above, $10,000 will be identified as claimed loss wages (back pay). The remainder will be treated as payment for potential compensatory damages (other than back pay).
3. If the number of eligible Unknown Class Members allows for payments to eligible Unknown Class Members in any amount less than $10,000, such amount will be treated as claimed loss wages (back pay).
4. Unknown Class Members will be notified as set forth in Section I.B and Exhibits C, D-I, and D-2 of the Preliminary Approval Order.
5. If any individual contacts legal counsel for or a manager of Georgetowne Place in response to a notice in the media or based upon some other source, Merrill Gardens will provide the EEOC with contact information as soon as possible and by no later than seven days after receiving the information.
6. The Parties agree that the EEOC shall make a preliminary determination as to which individuals meet the definition of Class Members under the Settlement Agreement and Consent Decree (under which the definitions are identical) and shall ensure that each such preliminarily identified Class Member receives a copy of the Notice that is attached hereto as Appendix A. The EEOC has the resources and expertise to address such matter. Class Counsel, either themselves or with or through the EEOC, shall notify Merrill Gardens of each person recommended by Class Counsel and/or the EEOC to be Class Members and each person who has been issued the Notices attached hereto as Exhibits A-I and A-2.
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7. If the EEOC determines that any individual who comes forward is not eligible to share in class relief, Class Counsel, either themselves or through the EEOC, shall so notify Merrill Gardens by no later than two weeks before the Fairness Hearing. Merrill Gardens may then, within seven (7) days of receiving notice, alert the EEOC in writing to any disagreement with the EEOC's determination. If the parties are unable to resolve the disagreement, Merrill Gardens may lodge an objection with the Court, which the Court will resolve at the Fairness Hearing addressed below.
8. Merrill Gardens will defer to the good faith recommendations of the EEOC and Class Counsel regarding whether individuals meet the definition of Class Members. The Court will, however, issue final approval of such recommendations.
9. Merrill Gardens shall provide appropriate IRS Forms W-4 to the EEOC for timely distribution to Class Members. D. Opt-Outs.
The Notice of Class Action, Proposed Settlement, Proposed Consent Decree, and Fairness Hearing at Exhibits A-I and A-2 shall be approved by the Court and shall thereafter be available to Class Members. Each Class Member shall have until ten (10) days before the Final Fairness Hearing to opt out as provided in this Settlement Agreement and the Notice attached hereto at Exhibits A-I and A-2. E. Release.
To be entitled to receive payment under this Settlement Agreement, a Class Member shall timely submit his or her executed Release. F. Preliminary Approval And Notice Of Proposed Settlement.
Class Counsel shall present this Settlement Agreement to the Court along with a Motion for Preliminary Approval of Class Settlement and Approval of Notice to Class Members. In
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addition, counsel for the Parties agree to take all appropriate steps to obtain an Order from the Court: (i) preliminarily approving this Settlement Agreement and finding that the Settlement is fair, reasonable and sufficient to allow notice to be disseminated to members of the Settlement Class; (ii) approving notice in the media to Class Members in the forms attached to the Preliminary Approval Order, (iii) approving Mailed Notice in the form attached as Exhibits A-I and A-2 to be mailed by the EEOC to those who identify themselves as potential class members, (iv) directing that the notice to Class Members be disseminated and published pursuant to the terms of this Settlement Agreement and the Preliminary Order; and (v) scheduling a hearing on final approval of the proposed Settlement ("Fairness Hearing"). G. Exclusions And Objections.
1. Subject to Court approval, any Class Member may present written objections as to (a) why this Settlement Agreement should not be approved as fair, reasonable, and adequate, (b) why attorneys' fees and expenses to Class Counsel should not be awarded in the amounts requested, and/or (c) why Class Representative's or Class Counsel's appointment should not be finally approved. All objections must (1) be in writing, (2) include the objector's full name, address and telephone number and, if applicable, the name, address and telephone number of the Class Member's independently retained attorney, (3) state with specificity the basis for the objection, (4) include any supporting papers, materials, or briefs, and (5) be accompanied by a Notice of Intent to Appear at the Final Approval Hearing if the objector desires to appear personally or by counsel. Such written objections must be filed with the Court and mailed to and received by Class Counsel by no later than seven (7) days before the Fairness Hearing. Class Counsel will immediately provide such objections to counsel for Merrill Gardens.
2. Any Class Member who has filed a written objection may appear at the Final Fairness Hearing and show cause why the Settlement Agreement should not be approved as fair,
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reasonable, and adequate. Any Class Member who does not file and serve written objections to the Settlement and notice of his or her intent to appear at the Fairness Hearing in the manner and within the time set forth above shall not be permitted to object to the Settlement at the Fairness Hearing, and shall be barred from seeking review of the Settlement by appeal or otherwise. H. Final Order and Judgment.
1. At least three (3) business days before the Final Fairness Hearing, Class Counsel shall provide to the Court and to Merrill Gardens a complete proposed accounting of the distributions of the total amount Merrill Gardens has agreed to pay.
2. The Settlement Agreement is subject to and conditional upon the issuance by the Court, following the Final Fairness Hearing, of a Final Order granting final approval to the Settlement Agreement in accordance with Rule 23(e) ofthe Federal Rules of Civil Procedure. A copy of that Final Order will be provided to each Class Member who has executed a Release, together with the check to be paid to each such Class Member.
3. Subsequent to the Final Fairness Hearing and upon the Court's approval of this Settlement Agreement and Consent Decree, the parties contemplate that a Final Order will be entered by the trial court, essentially in the form attached hereto as Exhibit A-3. The parties understand that the Court retains the right and ability to enter the Order it deems appropriate.
, .
However, the Parties agree that they will submit to the Court for entry an Order Granting Final Approval to Class Action Settlement and Entry of Final Judgment essentially in the form attached hereto as Exhibit A-3. I. Events To Nullify Agreement.
This Settlement Agreement shall be null and void and shall have no further force and effect with respect to any party in this action in the event that (i) the preliminary or final approval of the Settlement described in this Settlement Agreement is not obtained or is reversed on
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appeal; (ii) the Effective Date as described in Section I.K above does not occur for any reason; (iii) entry of the Final Order and Judgment described in Section III.H above is finally reversed; (iv) the Final Order and Judgment is substantially modified by the Court or on appeal, and either Merrill Gardens or Plaintiff Hill does not agree with such modification; and/or (v) the Court does not approve the proposed Consent Decree in the EEOC Action. In such event, this Settlement Agreement shall not be offered in evidence or used in this or any other action for any purpose including, but not limited to, the existence, certification or maintenance of any purported class. In the event of nullification of this Settlement Agreement for the reasons set forth in this paragraph, all negotiations, proceedings, documents and statements made in connection with this Settlement Agreement shall be without prejudice to any party and shall not be admissible into evidence, and shall not be deemed or construed to be an admission or confession by any party of any fact, matter or proposition of law, and shall not be used in any manner for any purpose, and all Parties to this action shall stand in the same position as if this Settlement Agreement had not been negotiated, made or filed with the Court. J. Cooperation For Implementation.
Plaintiff Hill, Plaintiff Bailey, and Merrill Gardens, individually and collectively, together with their respective counsel, agree to take all actions necessary to obtain preliminary approval of this Settlement Agreement and its plan for notice, final approval of this Settlement Agreement, and entry of the Final Order and Judgment dismissing this action with prejudice as to Plaintiff Hill and all Class Members. Plaintiff Hill, Plaintiff Bailey, and Merrill Gardens also agree to take all actions necessary to obtain dismissal of the Hill Action, all pending lawsuits (except for the EEOC Action), and all other subsequent lawsuits that may be filed by any non opting out Class Member between the time that this Settlement Agreement is executed and the
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Effective Date, relating to the subject matter of the Hill Action against Merrill Gardens, either individually or collectively, for claims covered by the Release. K. Release And Dismissal Of Claims; Covenant Not To Pursue Related Claims.
1. Plaintiff Hill, Plaintiff Bailey, and each Class Member (who has not opted out) agree to the form and substance of the Release that is appended to the attached Notice at Exhibits A-I and A-2
2. Upon the Effective Date, Plaintiff Hill and Plaintiff Bailey shall have, and each Class Member and the Settlement Class shall be deemed to have, covenanted and agreed that he or she shall not, at any time, institute, cause to be instituted, assist in instituting or permit to be instituted on his or her behalf any proceeding in any state or federal court, in or before any administrative agency, or any other proceeding or otherwise allege or assert any of the claims released against the Released Parties, individually or collectively, as described in the Release.
3. Plaintiff Hill and Plaintiff Bailey agree, and each Class Member shall be deemed to have agreed, to the dismissal with prejudice of the Hill Action. L. Payment to Class Representative of Unknown Class and Payment of Attorneys' Fees
And Expenses. Merrill Gardens agrees to pay to Plaintiff Bailey the gross amount of $1,000, minus applicable deductions and withholdings, which one-time payment is in addition to the amount Plaintiff Bailey will be eligible to receive as a result of her membership in the Unknown Class and for her role as the Representative for the Unknown Class, which representation required her preparation for and participation in the final fairness hearing. Merrill Gardens also agrees to make a one-time payment of $100,000 in attorney fees to Class Counsel. This fee will, in part, pay for any services rendered in the Litigation. Class Counsel, to avoid any apparent conflict of interest and as consideration for the agreed-upon fees to them, agrees to refrain from
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representing any individual, directly or indirectly, in any action against Merrill Gardens in which any allegations are made regarding the Merrill Gardens' purported discriminatory failure to hire during the Application Period. M. Final Report to the Court.
At the conclusion of delivery of consideration to all eligible Class Members, the Parties will jointly report to the Court that the Settlement has been effected and concluded. N. Miscellaneous Provisions.
1. Entire Agreement. This Settlement Agreement and its attachments shall constitute the entire agreement of the Parties in the Hill Action and shall not be subject to any change, modification, amendment, or addition without the express written consent of counsel on behalf of all Parties to the Settlement Agreement and shall be binding and inure to the benefit of the Parties hereof and their representative heirs, successors, and assigns, except that it should be viewed in conjunction with the proposed Consent Decree in the EEOC Action and the Preliminary Approval Order in both the Hill Action and the EEOC Action.
2. Illegality Or Unenforceability Of Provisions. In the event that any provision of this Settlement Agreement shall for any reason be held, in whole or in part, to be invalid, illegal, or unenforceable in any respect, then the Settlement Agreement will be null and void unless Merrill Gardens, the Class Representative, and Class Counsel agree in writing to proceed as if such invalid, illegal, or unenforceable provision had never been included in this Settlement Agreement. If this Settlement Agreement is terminated for any reason prior to issuance by the Court of a Final Order approving the Settlement, or if the Settlement contemplated by this Settlement Agreement is not concluded substantially as described in this Settlement Agreement with an Order of the Court approving the settlement that becomes final after all appeals, then the Settlement Agreement and all other acts taken to effect a settlement shall be void and of no effect
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and shall not be admissible by or against any Party to this Agreement. The Parties to this Settlement Agreement shall use their best efforts to obtain approval of this Settlement Agreement by the Court.
3. Agreement Mutually Prepared. This Settlement Agreement shall be deemed to have been mutually prepared by the Parties and shall not be construed against any of them by reason of authorship.
4. Independent Investigation And Decision. The Parties hereto understand, acknowledge and agree that they (i) have each performed an independent investigation of the allegations of fact and law made in connection with this action; and (ii) that they each may hereafter discover facts in addition to, or different from, those that they now know or believe to be true with respect to the subject matter of this Settlement Agreement. Nevertheless, it is the Parties' intention to resolve their disputes pursuant to the terms of this Settlement Agreement. In furtherance of their stated intentions, the Settlement Agreement shall remain in full force and effect notwithstanding the discovery of any additional facts or law, or changes in law, and this Settlement Agreement shall not be subject to rescission or modification by reason of any change or difference in facts or law.
5. Authority To Enter Into Agreement. The Parties hereby warrant and represent that the persons signing this Settlement Agreement shall have full power and/or authority to bind to all terms of this Settlement Agreement of Class Action Settlement every person included within the definitions of the Settlement Class and Merrill Gardens as set forth in Section H.E above.
6. No Promise Or Inducement For Release. The Parties hereto warrant and represent that no promise or inducement has been offered or made for the release in Section
17

III.E, and in the attached Release except as herein or therein set forth, that this Settlement Agreement is executed without reliance on any statements or any representations not contained herein, and this Settlement Agreement and the attached Release reflect the entire agreement among the Parties with respect to the terms of the release. The warranties and representations made herein shall survive the execution and delivering of this Settlement Agreement and shall be binding upon the respective heirs, representatives, successors and assigns of each of the Parties.
7. Binding Agreement. Plaintiff Hill, Plaintiff Bailey, and Merrill Gardens, individually and collectively, expressly agree that the terms of this Settlement Agreement and all provisions hereof, including all representations, promIses, agreements, covenants, and warranties, are contractual and not a mere recital and shall survive the execution of this Settlement Agreement and entry of the Final Order and Judgment and shall continue in full force and effect thereunder.
8. Receipt Of Advice Of Counsel. The Parties acknowledge, agree and specifically warrant to each other that they have fully read this Settlement Agreement and the accompanying Release, received independent legal advice with respect to the advisability of entering into this Settlement Agreement concerning the legal effect of this Settlement Agreement, and fully understand this Settlement Agreement and its effect.
9. Extensions Of Time. The Parties may agree, subject to approval of the Court when required, to reasonable extensions of time to carry out the provisions of this Settlement Agreement.
lO. Execution Of Agreement In Counterparts. This Settlement Agreement may be executed in counterparts by the Parties, and a facsimile signature shall be deemed an original signature for purposes of this Settlement Agreement.
18

11. Retention Of Jurisdiction. The Court shall retain continuing and exclusive jurisdiction over the Parties hereto for the purpose of enforcing, implementing, and interpreting this Settlement Agreement, including jurisdiction over all Class Members, and over the administration and enforcement of the Settlement and the distribution of benefits to Class Members. Any disputes or controversies arising out of or related to the interpretation, enforcement, or implementation of the Settlement shall be made by motion to the Court.
12. Controlling Law. For all issues of procedure relating to this Settlement or this Settlement Agreement, the laws of the State of Indiana shall apply.

Dated Dated Dated
Dated

By ____________________________ William Anthony Hill Class Representative
By _____________________________ Golda Bailey Class Representative
By ___________________________ John T. Menzie Shane C. Mulholland BURT, BLEE, DIXON, SUTTON &BLOOMLLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802 /i
1c71 i,"-/-B-/."?/;"/1",:'!tT/UitlCet:'£C--=W-?r_t(r<--=-:-:t4~7If),1--,f//_/;v-,-j_~-____________
For Merrill Gardens LLC
19

8. Receipt Of Advice Of Counsel. The Parties acknowledge, agree and specifically warrant to each other that they have fully read this Settlement Agreement and the accompanying Release, received independent legal advice with respect to the advisability of entering into this Settlement Agreement concerning the legal effect of this Settlement Agreement, and fully understand this Settlement Agreement and its effect.
9. Extensions Of Time. The Parties may agree, subject to approval of the Court when required, to reasonable extensions of time to carry out the provisions of this Settlement Agreement.
10. Execution Of Agreement In Counterparts. This Settlement Agreement may be executed in counterparts by the Parties, and a facsimile signature shall be deemed an original signature for purposes of this Settlement Agreement.
11. Retention Of Jurisdiction. The Court shall retain continuing and exclusive jurisdiction over the Parties hereto for the purpose of enforcing, implementing, and interpreting this Settlement Agreement, including jurisdiction over all Class Members, and over the administration and enforcement of the Settlement and the distribution of benefits to Class Members. Any disputes or controversies arising out of or related to the interpretation, enforcement, or implementation of the Settlement shall be made by motion to the Court.
12. Controlling Law. For all issues of procedure relating to this Settlement or this Settlement Agreement, the laws ofthe State ofIndiana shall apply.

Dated

By William Anthony Hill Class Representative
21

Dated Dated
Dated

By
Golda Bailey Class Representative
By
John T. Menzie Shane C. Mulholland BURT, BLEE, DIXON, SUTTON & BLOOM LLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802
By
Title: For Merrill Gardens LLC

22

 
 USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 1 of 10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

____________________________________)

)

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

CAUSE: 1:04-CV-248-TLS CAUSE: 1:05-CV-4-TLS

ORDER This matter is before the Court on the Stipulated Order Granting Preliminary Approval to Class Action settlement, Conditional Class Certification, and Proposed Consent Decree (“Stipulation”) proposed by the Defendant, Merrill Gardens, LLC, on June 8, 2005, as Docket Entry 50 in 1:04-CV-248 and Docket Entry 30 in 1:05-CV-4. The Stipulation is for the purposes of both of the above captioned matters, collectively referred to as the “Litigation.”

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 2 of 10
BACKGROUND The first case, Hill v. Merrill Gardens LLC, 1:04-CV-248 (the “Hill Action”), was filed on June 25, 2004. In the Hill Action, the Plaintiffs brought action on behalf of themselves and others allegedly similarly situated. Specifically, they claimed that they and others allegedly similarly situated were denied employment at the Georgetowne Place community located at 1717 Maplecrest Road, Fort Wayne, Indiana, owned by Merrill Gardens LLC (“Merrill Gardens”), and that the denial of employment was on the basis of race/color, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The second case, EEOC v. Merrill Gardens LLC, 1:05-CV-004 the “EEOC Action”), was filed on January 4, 2005. In the EEOC Action, the Equal Employment Opportunity Commission filed suit against Merrill Gardens (the “EEOC Action”) under authority granted by 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 -6 (“Title VII”); and § 102 of Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). The EEOC’s Complaint and Amended Complaint allege that Merrill Gardens had a pattern or practice of refusing to hire nonCaucasians because of their race and/or color, in violation of § 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a); alleged that Merrill Gardens failed, in violation of § 709(c), 42 U.S.C. § 2000e-(8)(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought appropriate relief for Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful employment practices.1
1 Each of these individuals is a part of the proposed class in the Hill Action.
2

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 3 of 10
As these two lawsuits overlap, the Parties in the Litigation have negotiated a proposed resolution of the cases together. The Parties request that the lawsuits be consolidated solely for the purposes of approving the requested class relief in the Hill Action and entry of a proposed Consent Decree in the EEOC Action.
The Stipulation requests that the Court grant preliminary approval of the requested class relief in the Hill Action and a proposed Consent Decree in the EEOC Action. The Parties agree that the payments proposed under the negotiated resolution for class members is one and the same, despite the fact that it is memorialized in both the Hill Action proposed Settlement Action and the EEOC Action proposed Consent Decree.
The Parties submit the Settlement Agreement attached as Exhibit “A” (hereinafter referred to as the “Settlement Agreement”) in the Hill Action and the Consent Decree attached as Exhibit “B” (hereinafter referred to as the “Consent Decree”) in the EEOC Action to this Court for preliminary approval. In tendering these proposed agreements together, the Parties have agreed that the resolution proposed in either requires approval by the Court of the other.
TERMS OF THE STIPULATION Having carefully reviewed the Parties submissions and finding them in good order, the Court GRANTS Preliminary Approval to Proposed Class Action Settlement, GRANTS the Proposed Consent Decree (“Preliminary Approval Order”) and FINDS, CONCLUDES, ORDERS, AND ADJUDGES as follows:
3

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 4 of 10
I. Preliminary Order Confirming Class Certification and Approving Notice to Members of the Settlement Class A. Class Certification The Court grants conditional class certification to the following settlement class
in the Hill Action and for the purpose of the proposed Consent Decree in the EEOC
Action:
All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates. This class consists of two subclasses:
1) The “Known Class”: Class Members Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman (“Known Class Members”), each of whom participated in the Hill Action and/or the EEOC Action on and/or prior to April 18, 2005. Members of the Known Class are identified as “Known Class Members.” 2) The “Unknown Class”: Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as “Unknown Class Members.” These two subclasses shall together be referred to as the “Settlement Class.” The Court
finds that the Settlement Class appears to satisfy all requirements of Fed. R. Civ. P. 23(a)
and (b)(2) and (b)(3).
The Court preliminarily appoints Plaintiff William Anthony Hill (“Plaintiff Hill”)
as Class Representative of the Known Class and Golda Bailey (“Plaintiff Bailey”) as
4

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 5 of 10
Class Representative of the Unknown Class.2 The Court conditionally appoints Plaintiff Hill’s counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class (“Class Counsel”). The Class Counsel represents the interests of the Class with respect to the Hill Action.
The EEOC represents the interests of the Settlement Class with respect to the EEOC Action.
B. Notice For purposes of both lawsuits, the Court approves the form and content of the Notices to be circulated via print media and the radio at Merrill Gardens’ expense during a 30-day period beginning in June 2005 (the “Official Notice Period”) pursuant to the schedule attached as Exhibit “C” and the text and narrative attached as Exhibit “D” (the “Notices”).
When potential Class Members timely contact the EEOC within the Official Notice Period and/or within 14 days thereafter, the EEOC shall send them the appropriate written Notice set forth as Exhibits “A-1 and A-2” (the “Mailed Notices”). The Notice and Mailed Notices provide sufficient information to inform members of the Hill Action Settlement Class and EEOC Action Class of the essential terms of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional information about the Settlement Agreement and Consent Decree, appropriate information about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate information about
2 Plaintiff Elizebeth Worthman is not being proposed as Class Representative.
5

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 6 of 10 their right, and the procedures, to object to the terms of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notice will also fairly and adequately inform members of the Hill Action Settlement Class that failing to timely obtain, execute, and return the Release attached to this Order as Exhibit “E” (the “Release”) will result in them becoming ineligible for payment under the proposed Settlement Agreement and proposed Consent Decree. If any potential Class Member contacts legal counsel for Merrill Gardens or a manager of Georgetowne Place in response to a notice in the media or based upon some other source, Merrill Gardens will provide the EEOC with contact information as soon as possible but by no later than seven (7) days after receiving the information. Upon the expiration of the Official Notice Period, counsel for Merrill Gardens shall file a declaration that the Notices have been published in the manner and frequency required by and specified by this Preliminary Approval Order. The Court hereby finds and concludes that members of the Hill Action Settlement Class will be provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Fed. R. Civ. P. 23.
6

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 7 of 10
C. Persons Excluded from the Settlement Class The Parties may receive requests for exclusion from the Hill Action Settlement Class and will, within seven (7) days of the Fairness Hearing addressed below, file with the Court a list of those persons who have timely elected to be excluded. All persons named in the list filed with the Court as having filed timely exclusions will be excluded from the Hill Action Settlement Class, will not be bound by the terms of the Hill Action Settlement, and will not be eligible for payment under the Consent Decree.
II. Preliminary Approval of the Class Action Settlement The Settlement Agreement appears to be fair, reasonable, and adequate and falls
within the appropriate range of possible approval. In essence, the Hill Action Settlement provides that each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release will receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree.
III. Releases, Covenant Not to Sue, and Effect of Settlement Agreement A. Releases by Settlement Class Members The Court preliminarily finds that in consideration of the terms of the Settlement
Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Hill Action Settlement will be found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future
7

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 8 of 10
officers, directors, employees, attorneys and representatives, or any of them, including any person or entity acting on behalf of or at the direction of any of them (“Released Parties”) as set forth in the Release and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action—known or unknown—that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
8

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 9 of 10
B. Covenant Not to Sue The Court preliminarily finds that in consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Settlement will be found, deemed, and adjudged to have (1) covenanted and agreed that neither Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action Settlement Class Members, nor anyone authorized to act on behalf of any of them, will commence, authorize, or accept any benefit from any judicial or administrative action or proceeding, other than as expressly provided for in the Settlement Agreement and/or Consent Decree, against the Released Parties, or any of them, in either their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by the Released Parties, or any of them, in connection with any application for employment at Merrill Gardens from February 17, 1998, to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
C. Effect of a Final Judicial Determination of Invalidity or Unenforceability
If, after the entry by this Court of Judgment, a notice of appeal of Judgment is timely filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden’s stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement
9

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 52 filed 06/16/05 page 10 of 10
or to the entry of the proposed Consent Decree in the EEOC Action) shall be null and void, and the parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and tender of the proposed Consent Decree unless all parties agree in writing to abide by the judgment as modified.
D. No Admission of Liability In entering into this agreement or the agreements referenced herein, Merrill Gardens does not admit that any class member in the Litigation would have been hired but for his/her race and/or color or that he/she was discriminated against on the basis of his/her race and/or color or that any claims are or would be timely. Merrill Gardens entered into this Stipulation and the agreements referenced herein to avoid further litigation.
CONCLUSION For the reasons and in the manner stated above, the Court GRANTS the Stipulated Order Granting Preliminary Approval to Class Action settlement, Conditional Class Certification, and Proposed Consent Decree (“Stipulation”) proposed by the Defendant, Merrill Gardens, LLC, as Docket Entry 50 in 1:04-CV-248 and Docket Entry 30 in 1:05-CV-4. SO ORDERED on June 16, 2005.
S/ Theresa L. Springmann THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
10

 
 USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 1 of 20

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZABETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

_____________________________________

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.1:04-CV-248 CAUSE NO.1:05-CV-4

OPINION AND ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT, ENTRY OF FINAL JUDGMENT,
AND ENTERING CONSENT DECREE The Final Approval to Class Action Settlement and Entry of Final Judgment is for purposes of the above-referenced action, Hill v. Merrill Gardens LLC (the "Hill Action"). The Entry of Consent Decree is for purposes of the above-referenced action, Equal Employment Opportunity Commission v. Merrill Gardens LLC (the "EEOC Action"). Plaintiff William Anthony Hill ("Plaintiff Hill") and Plaintiff Golda Bailey ("Plaintiff Bailey"), on behalf of a Settlement Class (and respective subclasses), and Defendant Merrill Gardens

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 2 of 20
LLC ("Merrill Gardens") have entered into a settlement agreement (the "Settlement Agreement"). The parties previously submitted the Settlement Agreement in the Hill Action and a proposed Consent Decree to this Court for preliminary approval. On June 16, 2005, this Court entered an Order Granting Preliminary Approval to Class Action Settlement, Conditional Class Certification, and Proposed Consent Decree ("Preliminary Approval Order"). Counsel for Merrill Gardens has filed a declaration confirming the timely dissemination of notices in the media. At the hearing on September 9, 2005, counsel for the EEOC verified timely dissemination of the Notices of Class Action, Proposed Settlement, and Hearing ("Class Notice") required by the Preliminary Approval Order. No exclusion (opt-out) requests were submitted by any Class Member. Now, the matter having come before the Court for hearing on September 9, 2005, on the parties' request for the entry of an Order Granting Final Approval to the Proposed Class Action Settlement and for entry of Final Judgment in the Hill Action and for entry of an Agreed Consent Decree in the EEOC Action, the Court finds that it has jurisdiction over the parties and the subject matter, and finds as follows:
A. Final Order Confirming Class Certification and Approving Notice to Members of the Settlement Class
1. Class Certification In the Preliminary Approval Order, this Court granted conditional class certification to the
following settlement class and subclasses: All African-American and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates.
2

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 3 of 20
The parties identified and sought preliminary approval of two subclasses: The "Known Class": Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman ("Known Class Members"), each of whom participated in the Hill Action and/or the EEOC Action prior to April 18, 2005. The "Unknown Class": Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as "Unknown Class Members."
("Settlement Class.") The Court preliminarily found and concluded that the Settlement Class satisfied all the requirements of Federal Rule of Civil Procedure 23(a) and (b)(3); appointed Plaintiff Hill as Class Representative of the Known Class and Plaintiff Bailey as Class Representative of the Unknown Class; and appointed Plaintiff Hill's counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class ("Class Counsel").
This Court recognizes that even with stipulations of the parties, it has a duty to make an independent determination that each requirement of Rule 23 is satisfied. To this end, this Court has carefully examined the pleadings, record, and evidence before it, and has rigorously analyzed the parties' stipulations and the record relative to class certification.
Having considered all submissions timely filed with the Court pursuant to the Preliminary Approval Order and the Settlement Agreement, and all the evidence and submissions presented at or in conjunction with the September 9, 2005 hearing, the Court now finds and concludes that the proposed Settlement Class and subclasses satisfy all the requirements of Rule 23(a) and (b)(3), gives final approval to Plaintiff Hill and Plaintiff Bailey as the Representatives of the Settlement Class (and respective subclasses), and confirms appointment of Class Counsel in all respects as a part of this Order under Rule 23(a) and (b)(3) and for the purposes of implementing the Class Action
3

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 4 of 20
Settlement provided for in the Settlement Agreement and entering Final Judgment in the Hill Action. Class Counsel have represented and will represent the interests of Known, Unknown, and absent Class Members. The Court further gives final approval to the proposed Consent Decree in the EEOC Action. The only change that the parties propose, and the Court approves, to the tendered Settlement Agreement is that Elizebeth Worthman, who did not timely return a Release, nonetheless be allowed to retain eligibility for receipt of proceeds since she returned an executed Release before entry of this Order. However, the total amount of the compensatory damages (other than wages) pursuant to Section III.B.1.b of the preliminarily approved Settlement Agreement and Section 302 of the final Consent Decree shall be reduced to $14,000. The Court specifically notes that this minor change is fair to all concerned, is consistent with the requirements of Rule 23, and corresponds with the approval given by Elizebeth Worthman and her attorney, John Menzie.
For the reasons set forth above and detailed more fully below, this Court hereby formally declares the prerequisites of Rule 23 to be fully demonstrated and met, rendering class treatment proper.
2. Findings of Fact and Conclusions of Law a. Numerosity
Over 250 positions were filled at Merrill Gardens from February 1998 to April 2005. Since not all applications were retained by the Georgetowne Place facility during this time period, the specific number of applicants is uncertain and cannot be specifically ascertained, but the number of applicants would certainly well exceed at least two to three times the number of positions filled. Further, in response to media notices the EEOC received contacts from more than 80 individuals.
4

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 5 of 20
Not all of these individuals who contacted the EEOC were determined to be eligible. However, the number of contacts, viewed in conjunction with the number of vacant positions, supports the conclusion that a sufficient number of Class Members exist to render joinder of all parties impracticable and plaintiffs satisfy the numerosity requirement of Rule 23(a)(1).
b. Commonality There are questions of law or fact common to the class so that Plaintiffs satisfy the
commonality requirements of Rule 23(a)(2). The class alleges a procedure of declining minority applications. Commonality is met.
c. Typicality The claims of the two named Plaintiffs are sufficiently typical of the claims of the Class to
satisfy the typicality requirements of Rule 23(a)(3). Each Plaintiff applied at Georgetowne Place. Plaintiff Hill represents the interests of the Known Class Members. Plaintiff Bailey represents the interests of the Unknown Class Members. No significant conflicts of interest exist between the absent class members and the named representatives to suggest that typicality is lacking. Therefore, typicality is satisfied.
d. Adequate Representation The named Plaintiffs will fairly and adequately protect the interests of the class as required
by Rule 23(a)(4). Counsel for plaintiffs will fairly and adequately represent the interests of the class as required by Rule 23(g) and as previously noted by this Court.
5

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 6 of 20
e. Grounds Generally Applicable Merrill Gardens allegedly acted on grounds generally applicable to the class in failing to hire
certain minority applicants for a period of time. Therefore, final injunctive relief or corresponding relief with respect to the class as a whole, in the event that Plaintiffs would prevail on the merits, would be appropriate.
f. Predominance and Superiority Questions of law or fact common to the members of the class predominate over any
questions affecting only individual members. Resolution of these common questions, examples of which are stated above in subsection b, will be a substantial step toward disposition of the case. Therefore, the Rule 23(b)(3) requirement of predominance of common questions is met, and a class action is superior to other available methods for the fair and efficient adjudication of this controversy.
g. Manageability Concerns regarding manageability of the class are greatly reduced in this action. Class
Members have been identifiable through an extensive media campaign. Notices were properly and promptly sent pursuant to this Court's preliminary order. No choice of law issues are presented to the Court, as no party contests that federal law is properly applied to the facts in the action. Therefore, concerns regarding manageability and due process notice are noted by the Court, and are found to be properly addressed by the definition and structure of the present action.
6

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 7 of 20
3. Notice The Preliminary Approval Order approved the form and content of the Notices to be
circulated via print media and the radio pursuant to the schedule attached to this Court's Preliminary Approval Order as Exhibit "C" and the text and narrative attached as Exhibit "D" (the "Notices"). The Notices provided sufficient information and were disseminated with sufficient frequency to meet the notice requirements of Federal Rule of Civil Procedure 23(c) and inform members of the Hill Action Settlement Class and EEOC Action Class of the essential terms of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional information about the Settlement Agreement and Consent Decree, appropriate information about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate information about their rights, and the procedures, to object to the terms of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notices also fairly and adequately informed members of the Hill Action Settlement Class that failing to obtain, execute, and return the Release (that was available from the EEOC and which was attached to this Court's Preliminary Approval Order as Exhibit "E") would result in their ineligibility for payment under the Settlement Agreement and proposed Consent Decree.
Based on the foregoing, the Court hereby finds and concludes that members of the Hill Action Settlement Class have been provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Rule 23.
4. Persons Excluded from the Settlement Class
7

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 8 of 20
No members of the Hill Action Settlement Class requested exclusion from the Hill Action Settlement Class. As such, all persons meeting the definition of a Class Member (see above) are bound by the release in the Hill Action Settlement.
Several individuals have objected to being excluded from the class in this case. To put these claims into perspective, some background may be useful. Because Merrill Gardens did not maintain applicant data or applications from all applicants before approximately April 2004, as part of the resolution of this case the parties agreed to a period to advertise for Unknown Class Members. When individuals came forward in response to that advertising, the EEOC interviewed them to determine if they met the agreed-upon criteria to be a Class Member in this case, criteria that the Court preliminarily approved in its Order of June 20, 2005. Among other things, the EEOC questioned the individuals about the Merrill Gardens' facility in Fort Wayne and the application process. There are other facilities near Georgetowne Place that have commonly been confused with it. Based on an individual's description of the facility or process, the EEOC was able to gain some insight into whether the individual actually applied at Georgetowne Place. Merrill Gardens compiled lists of employee hired and provided those lists to the EEOC, which the EEOC used to see if an open position existed at Georgetown Place at any given time for a particular position, and to see if the position was given to another minority.
The Court received written objections from Lawrence T. Brooks, Sr.; Robert Warren Hagler, Jr.; Vickie Hill; Robert L. Guy, Jr.; Marcus E. Mitchell; Elmo R. Portee, Jr.; Tony Lamar Robertson; and Alexis Smith.
Lawrence T. Brooks did not appear at the fairness hearing. His written objection states that he applied April 15, 2005. The EEOC presented evidence that Mr. Brooks applied for a position as
8

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 9 of 20
dishwasher and that Merrill Gardens filled that position with an African American on May 9, 2005. Thus, the position for which Mr. Brooks applied was given to a minority, and Mr. Brooks does not meet the criteria to be considered an Unknown Class Member in this case.
Anitera Fowler did not appear at the fairness hearing. In her objection she writes that she applied at Georgetowne Place in 2002. The EEOC presented evidence that Ms. Fowler stated that she applied for a position as receptionist, but that no such position was available in 2002. The EEOC also presented evidence that Ms. Fowler vacillated on the time when she applied, at various times stating that she applied no later than 2000, and after September 2001, and in 2001 or 2002. As a result, the EEOC was unable to determine if there was an open position at the time Ms. Fowler applied. The Court now finds that there was no open position for receptionist at the time Ms. Fowler applied at Merrill Gardens.
Robert Guy testified that he applied for a cook or dishwasher position with Merrill Gardens in June or July 2002 and July or August 2004. He testified that the building was not locked when he applied and that he was allowed to take the applications from the building to fill them out. The EEOC presented evidence that there were no cook or dishwasher positions available in June or July 2002. Further, the EEOC presented evidence that Merrill Gardens hired minorities as cook and dishwashers in July 2004. Finally, the EEOC presented evidence that Merrill Gardens had a uniform policy not to allow applications to be removed from the building and that the facility was protected by a security system, which meant that all persons entering the building had to be buzzed in. The Court now finds that Mr. Guy did not apply for a job with Merrill Gardens and, even if he had applied, there were no cook or dishwasher positions available in June or July 2002, and Merrill Gardens hired minorities as cook and dishwashers in July 2004.
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 10 of 20
Robert Hagler did not appear at the fairness hearing. His written objection states that he applied for a position as cook. The EEOC presented evidence that Mr. Hagler said that he applied for a position as line cook early in 1999, but no such position was then available at Georgetowne Place. Further, the EEOC presented evidence that Mr. Hagler's description of the facility was inaccurate or incorrect. Specifically, Mr. Hagler stated that he walked right into the building, that he could not see any other rooms while in the lobby, and that he sat in the lobby and filled out the application on his lap because there were no tables. The EEOC presented evidence that the building was protected by a security system, which meant that all persons entering the facility had to be buzzed in, that other rooms were visible from the lobby, and that applicants were escorted to one of two rooms at the facility, either a billiards room or a gathering room, where there were tables on which to fill out the application. The Court now finds that Mr. Hagler did not apply for a position with Merrill Gardens, but even if he did, there were no openings at the time he applied for a job as cook.
Vickie Hill appeared at the fairness hearing in person and by counsel, Edward Smith. She testified that she applied to be a server at Merrill Gardens in the spring of 2001. She testified that the building was not locked when she applied, that there was a sliding glass window at the reception area where she got and returned an application, and that she filled out the application in the dining area near the reception desk. The EEOC presented evidence that the building was protected by a security system, which meant that all persons entering the facility had to be buzzed in, that the reception desk was open and had no sliding window of any sort, and that the dining area was on the third floor. The Court now finds that Ms. Hill failed to furnish competent evidence that would support a finding that Ms. Hill applied for a job with Merrill Gardens. Her objection is therefore
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 11 of 20
denied. Marcus Mitchell testified that he applied for a job as dishwasher in April 2005. On May 9,
2005, Merrill Gardens filled that position with an African American. Thus, the position for which Mr. Mitchell applied was given to a minority and Mr. Mitchell does not meet the criteria to be considered a Class Member in this case.
Elmo Portee did not appear at the fairness hearing. His written objection states that he applied at Merrill Gardens in the summer of 2002 for a dietary or housekeeping position. The EEOC presented evidence that no such positions were available in June or July of 2002 and that Mr. Portee stated he got a job by August 2002. Further, the EEOC presented evidence that Mr. Portee claimed he took home an application from Merrill Gardens to fill it out, but Merrill Gardens had a uniform policy not to allow applications to be removed from the building. The Court now finds that Mr. Portee failed to produce competent evidence that supports a finding that Mr. Portee applied for a job with Merrill Gardens. Even if he had applied, however, there were no open dietary or housekeeping positions in June or July 2002. Consequently, Mr. Portee does not meet the criteria to be a Class Member in this case.
Tony Lamar Robertson testified at the fairness hearing that he applied at Merrill Gardens. Among other things, he testified that he applied once in 2003 and perhaps twice in 2004, in November 2004 or later. He stated that he filled out the application in the lobby area, in a chair, perhaps using a clipboard provided by Merrill Gardens. He also stated that the reception area was toward the back of the facility. In contrast, the EEOC presented evidence that Merrill Gardens does not have an application from Mr. Robertson at a time (November 2004 and later) when it appears reasonably certain that Merrill Gardens has retained all applications. Further, the EEOC presented
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 12 of 20
evidence that the uniform policy at Merrill Gardens was to escort applicants to one of two rooms at the facility, either a billiards room or a gathering room, and was not to provide applicants with a clipboard. In addition, the evidence showed that the reception area at Merrill Gardens was not as has been described by Mr. Robertson. Accordingly, the Court concludes that Mr. Robertson failed to produce competent evidence sufficient to support a finding that Mr. Robertson applied for a job with Merrill Gardens.
After the fairness hearing, Mr. Robertson tendered to the Court a letter with which he enclosed a business card from Georgetowne Place. He refers to the business card as "supporting evidence" and states that the receptionist at Georgetowne Place handed the card to him at the time he submitted his application. Yet, the card does not explain any of the deficiencies in Mr. Robertson's presentation that the Court noted in the preceding paragraph. Further, Mr. Robertson did not mention at the fairness hearing that he had further evidence or supporting evidence. Indeed, when the Court asked Mr. Robertson if he had any further evidence to present, Mr. Robertson responded that he did not. He has not shown any reason here to allow the presentation of further evidence, nor have the parties had an opportunity to cross-examine Mr. Robertson regarding the business card. For all of these reasons, and the reasons in the preceding paragraph, the Court denies and overrules Mr. Robertson's objection.
Alexis Smith was called to testify at the fairness hearing, but after diligent search was not found to be present at court. Her written objection alleges that she satisfies the criteria to be a member of the Unknown Class in this case. The EEOC presented evidence that Ms. Smith stated that she applied for a position in dietary or laundry in September 2004 and that Merrill Gardens does not have an application from Ms. Smith. It appears reasonably certain that Merrill Gardens has
12

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 13 of 20
retained all applications from that time period. The Court concludes that Ms. Smith has failed to produce competent evidence that Ms. Smith applied for a job with Merrill Gardens. Therefore, her objection is denied.
The Court also received a written objection from Rodney Woods, but counsel for the EEOC explained during the fairness hearing that the Commission erroneously sent Mr. Woods notice that he would not be in the class, which was corrected after Mr. Woods filed his objection with the Court. Mr. Woods acknowledged receipt of a notice from the EEOC informing him that he would be a member of the Unknown Class in this case, and the Court so finds him to be. Accordingly, there is nothing for the Court to rule on regarding Mr. Woods' objection.
Chakia Robertson claimed that she sent a written objection to the Court and attorneys on September 2, 2005. However, neither the Court nor any of the attorneys received such an objection. Ms. Robertson appeared at the fairness hearing and testified that she applied at Merrill Gardens in the summer of 2001 and around Christmas 2002. Because she did not present a written objection to the Court in a timely manner, she waived her opportunity to object. But even on the merits, Ms. Robertson's objection fails. Ms. Robertson testified that she saw a "Now Hiring" sign on the gate outside Merrill Gardens. She also testified that she applied just before she graduated from high school, which was in May 2002. The EEOC presented evidence that Ms. Robertson told them that she applied in May 2002 for a position in housekeeping, but that there were no open positions in May and June 2002. Further, the EEOC presented testimony that Merrill Gardens hired a minority in January 2003 in the position for which Ms. Robertson was allegedly applying. The EEOC also presented evidence that Merrill Gardens did not at any time hang a "Now Hiring" sign on its gate. The Court now finds that there were no open positions when Ms. Robertson applied in May 2002
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 14 of 20
and Merrill Gardens hired a minority in the position for which Ms. Robertson applied around Christmas 2002. Thus, Ms. Robertson does not meet the criteria to be a Class Member in this case. Debra Johnson did not file a written objection with the Court, but she appeared at the fairness hearing and testified that she applied for a housekeeping position at Merrill Gardens sometime between 1995 and 2000. Because she did not present a written objection to the Court in a timely manner, she waived her opportunity to object. But even on the merits, Ms. Johnson's claim fails. Ms. Johnson could not identify with any precision when she applied at Merrill Gardens. As a result, the EEOC was unable to determine if there was an open position at the time Ms. Johnson applied. The EEOC presented evidence that Ms. Johnson stated that she applied once when she worked for Parkview Hospital, perhaps as early as 1995, and Ms. Johnson admitted that she may have applied at Merrill Gardens before February 17, 1998. Consequently, the Court now finds that Ms. Johnson has not satisfied the criteria to be a Class Member in this case.
Roszetta Clark submitted an objection to class counsel on September 29, 2005, which class counsel has forwarded to the Court. The Court has reviewed Ms. Clark's objection and the EEOC's Response (also filed September 29th.) Ms. Clark states that she applied "at Georgetowne" in September 2001. She says that the receptionist handed her an application, which she filled out in her car. The evidence at the fairness hearing established that Georgetowne Place had a uniformly enforced policy not to allow applications out of the building. Accordingly, the Court concludes that Ms. Clark failed to produce competent evidence sufficient to support a finding that she applied for a job with Merrill Gardens. Therefore, Ms. Clark's objection is denied.
The Court independently concludes that the EEOC's determinations of Class eligibility by the EEOC are valid. Class Members are only those who meet the definition of Class Members set
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 15 of 20
forth above. Those who submitted objections do not meet each and every component of that definition. Those listed in the listing filed by the EEOC on September 1, 2005 do meet the definition of Class Members and, since these individuals submitted Releases acceptable to the Court and the parties, are entitled to settlement proceeds.
C. Final Approval of the Class Action Settlement In the Preliminary Approval Order, the Court found that the Settlement Agreement appeared
to be fair, reasonable, and adequate and clearly fell within the appropriate range of possible approval. In essence, the Hill Action Settlement provides for each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release to receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree.
Therefore, taking into account the consideration set forth in the Settlement Agreement, the defenses asserted by Merrill Gardens (particularly defenses of causation, statute of limitations, and qualifications) and the risks of further litigation, the Settlement Agreement is fair, reasonable, and adequate. Moreover, the parties have reached the Settlement after an extended investigation and negotiation process. No objections were submitted regarding the appropriateness of the settlement. Accordingly, having considered the foregoing, the lack of opposition to the Settlement, the strength and weaknesses of the claims that have been and could be asserted on behalf of the members of the Settlement Class, the strengths and weaknesses of the defenses that have been and could be asserted by Merrill Gardens, the damages that have been and could be claimed on behalf of the members of the Settlement Class, the value of the Settlement, and the complexity, length, expense, and uncertain
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 16 of 20
outcome of continued litigation, and there being no suggestion of improper collusion among the parties, the Court finds that the Settlement is fair, reasonable, and adequate to members of the Settlement Class, and the Court hereby grants final approval of the Settlement Agreement and enters this Judgment implementing its terms. The Court hereby adopts and incorporates the terms of the Settlement Agreement for the purposes of this Order and Judgment, including the Definitions set forth in the Settlement Agreement. The Court also orders that a fully executed copy of the Settlement Agreement, as approved, be filed with the Court.
D. Payments Under the Settlement Agreement The Preliminary Approval Order anticipated payments by Merrill Gardens of an amount for
known class members in the amount of $325,000, and payment of up to $325,000 for class members not known at the time the Settlement Agreement was negotiated.
This Court approved Class Counsel's petition for an award of $100,000 in attorneys' fees and expenses, as negotiated by the parties. Such amount does not come from the amounts negotiated to be paid to known and unknown Class Members.
Now, for the purposes of consummating the administration of the Settlement, the Court orders as follows:
If, after 30 days from the entry by this Court of this Order and Judgment, no notice of appeal of this Judgment or any Order in this case has been filed, so that any right to take an appeal from this Judgment or from any such Order has been waived, or if each such appeal has been finally adjudicated and this Order and Judgment have been upheld in all respects by that final adjudication, Merrill Gardens shall make payments pursuant to the identical formula set forth in the approved
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 17 of 20
Settlement Agreement and the approved Consent Decree which are attached hereto as Exhibits "A" and "B," with the only modification being the $1,000 reduction for Elizebeth Worthman and the $1,000 additional payment to Class Representative Golda Bailey for her services in relation to the final hearing.
If any notice of an appeal from this Order and Judgment is timely filed by any party, objector, claimant, or other person, the Settlement Agreement and Consent Decree will not be or become final or effective, and no payment pursuant to the Settlement Agreement and/or Consent Decree shall be made to any eligible Class Member or Class Counsel, unless and until each such appeal has been finally adjudicated and this Order and Judgment have been upheld in all respects by that final adjudication; or if modified, accepted in writing, by the Class Representatives, Merrill Gardens, and the EEOC, as appropriate.
E. Releases, Covenant Not to Sue, and Effect of Settlement Agreement 1. Releases by Settlement Class Members
In consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who did not opt out of the Hill Action Settlement are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future officers, directors, employees, attorneys and representatives, or any of them, including any person or entity acting on behalf of or at the direction of any of them ("Released Parties") as set forth in the Release
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 18 of 20
set forth in the Court's Preliminary Order and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action—known or unknown—that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
2. Covenant Not to Sue
In consideration of the terms of the Settlement Agreement, all members of the Hill Action
Settlement Class, including Plaintiff Hill and Plaintiff Bailey, none of whom opted out of the
settlement, are hereby found, deemed, and adjudged to have (1) covenanted and agreed that neither
Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action Settlement Class Members, nor anyone
authorized to act on behalf of any of them, will hereafter commence, authorize, or accept any benefit
from any judicial or administrative action or proceeding, other than as expressly provided for in the
Settlement Agreement and/or Consent Decree, against the Released Parties, or any of them, in either
their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises
from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by the Released
Parties, or any of them, in connection with any application of employment at Merrill Gardens from
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 19 of 20
February 17, 1998 to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
3. Effect of a Final Judicial Determination of Invalidity or Unenforceability If, after the entry by this Court of this Judgment, a notice of appeal of this Judgment is timely
filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that this Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden's stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement or to the entry of the Consent Decree in the EEOC Action) shall be null and void, and the Parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and proposed Consent Decree, unless all Parties agree in writing to abide by the judgment as modified.
F. No Admission of Liability Nothing contained in the Preliminary Approval Order, this Order, or the documents
referenced therein and herein, shall be construed, deemed, or offered as an admission by any of the Parties for any purpose in any action or proceeding of any kind.
G. Entry of Final Judgment and Consent Decree
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 72 filed 10/06/05 page 20 of 20 The Court hereby orders the entry of, and enters a Final Judgment of Dismissal With
Prejudice in the Hill Action, incorporating the provisions of this Order, including the releases and covenant not to sue, on all claims, counts, and causes of action alleged in this action by Plaintiff Hill and Plaintiff Bailey, on behalf of themselves and the Settlement Class, relating to applications for employment at Georgetowne Place. The Court contemporaneously enters the Consent Decree in the EEOC Action. The Court finds that after the Effective Date, pursuant to the Settlement Agreement and Consent Decree, Merrill Gardens shall pay those individuals identified in the Notice of EEOC's Determination of Class Members filed by the EEOC on September 1, 2005. The Court expressly retains jurisdiction over all matters relating to the administration and consummation of the Settlement Agreement and Consent Decree, including, but not limited to, final disposition of the financial consideration identified in the Settlement Agreement and Consent Decree.
SO ORDERED on October 6, 2005. S/ Theresa L. Springmann
THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
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 USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 1 of 21

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiff,

)

)

~

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.: 1:04-cv-248

SETTLEMENT AGREEMENT

This Settlement Agreement is entered into between Plaintiff William Anthony Hill

("Plaintiff Hill") and Golda Bailey ("Plaintiff Bailey"), on behalf of themselves and the

Settlement Class, as defined below, and Merrill Gardens LLC ("Merrill Gardens"), to fully and

finally settle all of the claims that have been or could have been brought relating to the above-

referenced litigation and applications for employment by African-Americans or other minorities

at Merrill Gardens.

I. Definitions.

As used throughout this Settlement Agreement, in addition to any definitions elsewhere

in the Settlement Agreement, the following terms shall have the meanings set forth below:

A. 2005.

The "Applicable Period" shall mean the period of February 17, 1998 to April 18,

B. "Georgetowne Place" means the retirement community located at 1717 Maplecrest Road, Fort Wayne, Indiana, and owned by Merrill Gardens since February 17, 1998.

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 2 of 21
C. "Plaintiff Hill" means William Anthony Hill. D. "Plaintiff Bailey" means Golda Bailey. E. "Parties" mean, collectively, PlaintiffHill, Class Members, and Merrill Gardens. F. "Merrill Gardens" means Merrill Gardens LLC and its past, present, and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of its past, present, and future officers, directors, employees, attorneys, and representatives, and any of them, including any person or entity acting on behalf or at the direction of any of them. G. The "Hill Action" shall mean and include the above-captioned lawsuit and all claims that were brought or that could have been brought by Plaintiff Hill or any Settlement Class Member in that action, or in or before any administrative agency, or in any other action or proceeding (except the "EEOC Action," defined below), whether brought in an individual or representative capacity regarding applications of employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, and owned by Merrill Gardens ("Georgetowne Place") during the Application Period. H. The "EEOC Action" shall mean the action brought against Merrill Gardens by the Equal Employment Opportunity Commission ("EEOC") on January 4, 2005, in the United States District Court for the Northern District of Indiana, Fort Wayne Division, as Case No. 1:05-CV004, and all claims that were brought or that could have been brought in that action, or before any administrative agency, or in any action or proceeding regarding applications for employment at Georgetowne Place during the Applicable Period. I. The "Litigation" refers to the Hill Action and the EEOC Action collectively.
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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 3 of 21

J.

"Settlement Class" or "Class Member" shall mean and include all persons within

the description of the Settlement Class quoted below in Section II.E.

K. "Class Counsel" shall mean and include John T. Menzie and/or Shane C.

Mulholland of the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP.

L. "Effective Date" shall mean and include the day on which the Order Granting Final Approval to Class Action Settlement, Entry of Final Judgment, and Entry of Consent Decree ("Final Order") described in Section III.H below becomes final. For purposes of this Settlement Agreement, the Final Order shall be deemed to become final on the later of (a) the day following the date on which the Final Order is no longer subject to review by appeal if no

notice of appeal, motion to correct errors, or similar motion or notice is filed; or (b) if any such notices or motions are filed, on the day following the date on which the Final Order is not subject to further judicial review or appeal, either by reason of affirmance by a court of last resort or by lapse of time or otherwise.

M. "Release" means the Appendix to the Notice of Class Action, Proposed

Settlement, Proposed Consent Decree, and Fairness Hearing, which is attached as Exhibit A-1. II. BACKGROUND FACTS.
A. On behalf of himself and others allegedly similarly situated, Plaintiff Hill claims in the Hill Action that applicants were denied employment at the Georgetowne Place community

and that the denials of employment were on the basis of race/color, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and§ 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981.

B. The EEOC has claimed in the EEOC Action that Merrill Gardens had a pattern or practice of refusing to hire non-Caucasians because of their race and/or color, in violation of

§ 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a); alleged that Merrill Gardens failed, in violation

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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 4 of 21

of§ 709(c), 42 U.S.C. § 2000e-(8)(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought

appropriate relief for Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful employment practices. Each of these individuals is a part of the proposed class in the Hill Action.

C. Merrill Gardens denies that Plaintiff Hill, Plaintiff Bailey, or any Class Member

would have been hired at Georgetowne Place but for his/her race and/or color and that any claim is or would be timely and therefore denies liability to Plaintiff Hill, Plaintiff Bailey, or the Settlement Class for any claims, causes of action, costs, expenses, attorneys' fees, or damages of any kind.

D. The Parties and the EEOC have engaged in substantial investigation to evaluate the merits of the claims of Plaintiff Hill, Plaintiff Bailey, and the Settlement Class and Merrill Gardens' defenses thereto, including, but not limited to, defenses of causation and limitations periods. The Parties have obtained substantial information and have thoroughly analyzed the

factual and legal issues surrounding Plaintiff Hill's and Plaintiff Bailey's claims and Merrill Gardens' defenses.

E. follows:

The Parties seek certification of a class pursuant to Fed. R. Civ. P. 23 defined as

All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates.
The parties identify and seek approval of two subclasses:

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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 5 of 21

The "Known Class": Class Members Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman ("Known Class Members"), each of whom participated in the Hill Action and/or the EEOC Action on and/or prior to April 18, 2005. Members of the Known Class are identified as "Known Class Members."

The "Unknown Class": Class Members, including Golda Bailey, who are not
specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as "Unknown Class Members."

F. The Court gave preliminary approval to Plaintiff Hill as Class Representative.

The Court gave preliminary approval to Class Counsel John T. Menzie and/or Shane C.

Mulholland of the law firm Burt, Blee, Dixon, Sutton & Bloom, LLP.

G. Plaintiff Hill, Plaintiff Bailey, and their counsel have concluded that, in light of

the costs, risks, and delays inherent in litigation, it is in the best interest of Plaintiff Hill, Plaintiff

Bailey, and the Settlement Class to enter into this Settlement to assure a benefit to the Settlement

Class and to resolve their individual claims. Class Counsel has determined that the terms of the

class action settlement in this case are fair, reasonable, adequate, and in the best interest of

Plaintiff Hill, Plaintiff Bailey, and the members of the Settlement Class.

H. Merrill Gardens has concluded that, in order to avoid the costs and risks of

ongoing litigation but without admitting the liability asserted by Plaintiff Hill, Plaintiff Bailey,

and Class Counsel, a settlement of the claims of Plaintiff Hill, Plaintiff Bailey, and the

Settlement Class in this case is appropriate. In this connection, Merrill Gardens agrees that the terms of the class action settlement in this case are fair, reasonable, and adequate.

I.

The Parties desire to fully settle and compromise the Hill Action and all related

claims that were and/or could have been brought in it.

J.

The Parties desire and intend to seek Court approval of this Settlement

Agreement, and the Parties intend to seek a Final Order from the Court dismissing with prejudice

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USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 6 of 21
all claims of Plaintiff Hill, Plaintiff Bailey, and all members of the Settlement Class made in this Litigation as covered by the Release in Section III.K and in the attached Release. The Parties agree that this Settlement Agreement is final and enforceable only upon Court approval and is contingent upon approval of the Consent Decree in the EEOC Action. III. AGREEMENT.
In consideration of the agreements, promises, and mutual covenants set forth in this Settlement Agreement, the Release, the entry by the Court of a Final Order dismissing the Hill Action with prejudice and approving the terms and conditions of this Settlement Agreement, and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree that this action shall be settled and compromised under the conditions and terms set forth below. The Parties agree that this Settlement is contingent upon the approval of the proposed Consent Decree in the EEOC Action and that the monetary relief itemized in the proposed and contemporaneously negotiated Consent Decree is identical, and not in addition to, the consideration under this Settlement Agreement. A. Agreement on The Settlement Class.
1. For settlement purposes only, the Parties agree that the Settlement Class identified above in Section II.E should be certified as an "opt-out" class under Fed. R. Civ. P. 23 (b)(2), (b)(3), and (c)(2).
2. Persons who timely submit requests for exclusion ("opt out") after notice of the conditional class certification order and preliminary approval by the Court will not be entitled to participate in the Settlement Class or to receive the financial consideration described in this Settlement Agreement or the Consent Decree.
3. Persons who do not opt out of the Settlement Class but who do not timely return executed Releases at least seven (7) days before the Fairness Hearing will be a part of the
6

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 7 of 21
Settlement Class but will not be entitled to receive financial consideration described in the Settlement Agreement. The only exception to this deadline for submission of executed Releases will be for those individuals who timely submit objections to the EEOC's preliminary determination that such individuals are not in the Class. If such individuals are determined to be in the Class, their executed Releases are due at the Fairness Hearing. Amounts assigned to Class Members (who do not opt out and who do not timely execute Releases) pursuant to Sections III.B and III.C will be distributed pursuant to this Settlement Agreement and the Consent Decree. B. Financial Consideration To The Known Class.
1. As consideration for this Settlement Agreement and proposed Consent Decree in the EEOC Action, assuming that each identified individual meets the eligibility requirements set forth in the Settlement Agreement and Consent Decree, Merrill Gardens will, within twenty (20) days after the Effective Date of the Final Order pay the amounts to Class Members which are set forth below:
a. Merrill Gardens shall pay $10,000, minus applicable taxes and withholdings, for alleged back pay to each of the Known Class Members, as defined herein and if eligible, or to their heirs or assigns in the event of an individual's death.
b. Merrill Gardens shall pay $50,000 for alleged compensatory damages (other than for wages) to Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, and William Hill, if eligible. Merrill Gardens shall pay $14,000 for alleged compensatory damages (other than for wages) to Elizebeth Worthman.
2. Class Counsel, independently or with or through the EEOC, within seven (7) days of the Final Fairness Hearing, will notify the Court and counsel for Merrill Gardens which Known Class Members did not opt out of the Settlement and who timely submitted executed Releases and completed IRS W-4 forms, and are therefore eligible for payment under the Settlement Agreement and Consent Decree, and will cause copies of such documents to be
7

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 8 of 21
forwarded to counsel for Merrill Gardens. Within twenty (20) days after the Effective Date,
Merrill Gardens shall mail appropriate payments for eligible Known Class Members via certified
mail, payable to eligible Known Class Members, or to any appropriate heir or assign in the event
of a Known Class Member's death. Absent alternate acceptable instruction, checks will be sent
to the following addresses:
Caroline Aduro 341 0 Hawkechee Drive Fort Wayne IN 46815
Samantha Bolden c/o John T. Menzie/Shane C. Mulholland [or as otherwise timely updated] Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Jaela Brownlee 6226 Mayfair Road Fort Wayne IN 46818
Debra Edwards 5405 Scepter Court Fort Wayne IN 46835
William Hill c/o John T. Menzie/Shane C. Mulholland Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Elizebeth Worthman c/o John T. Menzie/Shane C. Mulholland Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Merrill Gardens shall prepare the checks in amounts determined under Paragraph III.B above.
Applicable taxes and withholdings shall be subtracted from the back pay amounts under
8

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 9 of 21
Paragraph III.B.l.a pursuant to the IRS Forms W-4 completed and tendered to Merrill Gardens. If a Known Class Member fails to submit a completed IRS Form W-4 with his/her executed Release, then Merrill Gardens will make the maximum withholdings as set forth by law. Merrill Gardens will not deduct from any amount the employer's share of any costs, taxes, or social security required by law to be paid by Merrill Gardens. Further, Merrill Gardens will not withhold any amounts from the payments under Section III.B.l.b above. Merrill Gardens offers no tax advice or opinion regarding the tax consequences of the payments under Section III.B.l to any Class Member.
Merrill Gardens shall promptly mail a copy of the checks and proof of their delivery (signed certified mail receipts) to Class Counsel. Class Counsel, on their own or with or through the EEOC, shall promptly provide Merrill Gardens with original Releases executed by Class Members.
If a Known Class Member does not return an executed Release, the Known Class Member will be ineligible for any payment under this Settlement Agreement and the Consent Decree, and any funds that claimant would have received shall be split equally among the remaining Known Class Members under this Settlement Agreement and the Consent Decree. C. Financial Consideration To The Unknown Class.
1. Merrill Gardens will pay an additional amount of up to $325,000 to approved Unknown Class Members, as defined above, who have executed and timely submitted Releases. Merrill Gardens will pay up to $54,166.67 to each approved, eligible Unknown Class Member, if no more than six Unknown Class Members come forward and meet all eligibility requirements (i.e., Merrill Gardens will pay $54,166.67 for each Unknown Class Member, $108,333.33 for two Unknown Class Members, etc. up to a cap of $325,000). If more than six Unknown Class Members meet the eligibility requirements for payment and are approved by the Court, the
9

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 10 of 21
$325,000 will be divided equally among those Unknown Class Members who satisfy eligibility requirements.
2. If the number of eligible Unknown Class Members allows payments of at least $10,000 to each eligible Unknown Class Member pursuant to Section 403 above, $10,000 will be identified as claimed loss wages (back pay). The remainder will be treated as payment for potential compensatory damages (other than back pay).
3. If the number of eligible Unknown Class Members allows for payments to eligible Unknown Class Members in any amount less than $10,000, such amount will be treated as claimed loss wages (back pay).
4. Unknown Class Members will be notified as set forth in Section I.B and Exhibits C, D-1, and D-2 ofthe Preliminary Approval Order.
5. If any individual contacts legal counsel for or a manager of Georgetowne Place in response to a notice in the media or based upon some other source, Merrill Gardens will provide the EEOC with contact information as soon as possible and by no later than seven days after receiving the information.
6. The Parties agree that the EEOC shall make a preliminary determination as to which individuals meet the definition of Class Members under the Settlement Agreement and Consent Decree (under which the definitions are identical) and shall ensure that each such preliminarily identified Class Member receives a copy of the Notice that is attached hereto as Appendix A. The EEOC has the resources and expertise to address such matter. Class Counsel, either themselves or with or through the EEOC, shall notify Merrill Gardens of each person recommended by Class Counsel and/or the EEOC to be Class Members and each person who has been issued the Notices attached hereto as Exhibits A-1 and A-2.
10

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 11 of 21
7. If the EEOC determines that any individual who comes forward is not eligible to share in class relief, Class Counsel, either themselves or through the EEOC, shall so notify Merrill Gardens by no later than two weeks before the Fairness Hearing. Merrill Gardens may then, within seven (7) days of receiving notice, alert the EEOC in writing to any disagreement with the EEOC's determination. If the parties are unable to resolve the disagreement, Merrill Gardens may lodge an objection with the Court, which the Court will resolve at the Fairness Hearing addressed below.
8. Merrill Gardens will defer to the good faith recommendations of the EEOC and Class Counsel regarding whether individuals meet the definition of Class Members. The Court will, however, issue final approval of such recommendations.
9. Merrill Gardens shall provide appropriate IRS Forms W-4 to the EEOC for timely distribution to Class Members. D. Opt-Outs.
The Notice of Class Action, Proposed Settlement, Proposed Consent Decree, and Fairness Hearing at Exhibits A-1 and A-2 shall be approved by the Court and shall thereafter be available to Class Members. Each Class Member shall have until ten (1 0) days before the Final Fairness Hearing to opt out as provided in this Settlement Agreement and the Notice attached hereto at Exhibits A-1 and A-2. E. Release.
To be entitled to receive payment under this Settlement Agreement, a Class Member shall timely submit his or her executed Release. F. Preliminary Approval And Notice Of Proposed Settlement.
Class Counsel shall present this Settlement Agreement to the Court along with a Motion for Preliminary Approval of Class Settlement and Approval of Notice to Class Members. In
11

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 12 of 21
addition, counsel for the Parties agree to take all appropriate steps to obtain an Order from the Court: (i) preliminarily approving this Settlement Agreement and finding that the Settlement is fair, reasonable and sufficient to allow notice to be disseminated to members of the Settlement Class; (ii) approving notice in the media to Class Members in the forms attached to the Preliminary Approval Order, (iii) approving Mailed Notice in the form attached as Exhibits A-1 and A-2 to be mailed by the EEOC to those who identify themselves as potential class members, (iv) directing that the notice to Class Members be disseminated and published pursuant to the terms of this Settlement Agreement and the Preliminary Order; and (v) scheduling a hearing on final approval of the proposed Settlement ("Fairness Hearing"). G. Exclusions And Objections.
1. Subject to Court approval, any Class Member may present written objections as to (a) why this Settlement Agreement should not be approved as fair, reasonable, and adequate, (b) why attorneys' fees and expenses to Class Counsel should not be awarded in the amounts requested, and/or (c) why Class Representative's or Class Counsel's appointment should not be finally approved. All objections must (1) be in writing, (2) include the objector's full name, address and telephone number and, if applicable, the name, address and telephone number of the
Class Member's independently retained attorney, (3) state with specificity the basis for the
objection, (4) include any supporting papers, materials, or briefs, and (5) be accompanied by a Notice of Intent to Appear at the Final Approval Hearing if the objector desires to appear personally or by counsel. Such written objections must be filed with the Court and mailed to and received by Class Counsel by no later than seven (7) days before the Fairness Hearing. Class Counsel will immediately provide such objections to counsel for Merrill Gardens.
2. Any Class Member who has filed a written objection may appear at the Final Fairness Hearing and show cause why the Settlement Agreement should not be approved as fair,
12

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 13 of 21

reasonable, and adequate. Any Class Member who does not file and serve written objections to the Settlement and notice of his or her intent to appear at the Fairness Hearing in the manner and

within the time set forth above shall not be permitted to object to the Settlement at the Fairness

Hearing, and shall be barred from seeking review of the Settlement by appeal or otherwise.

H. Final Order and Judgment. 1. At least three (3) business days before the Final Fairness Hearing, Class Counsel

shall provide to the Court and to Merrill Gardens a complete proposed accounting of the

distributions of the total amount Merrill Gardens has agreed to pay.

2. The Settlement Agreement is subject to and conditional upon the issuance by the Court, following the Final Fairness Hearing, of a Final Order granting final approval to the Settlement Agreement in accordance with Rule 23(e) of the Federal Rules of Civil Procedure. A

copy of that Final Order will be provided to each Class Member who has executed a Release,

together with the check to be paid to each such Class Member. 3. Subsequent to the Final Fairness Hearing and upon the Court's approval of this
Settlement Agreement and Consent Decree, the parties contemplate that a Final Order will be

entered by the trial court, essentially in the form attached hereto as Exhibit A-3. The parties

understand that the Court retains the right and ability to enter the Order it deems appropriate.

However,

the

Parties

agree

that

they

will

'. submit

to

the

Court

for

entry

an

Order

Granting

Final

Approval to Class Action Settlement and Entry of Final Judgment essentially in the form

attached hereto as Exhibit A-3.

I. Events To Nullify Agreement. This Settlement Agreement shall be null and void and shall have no further force and
effect with respect to any party in this action in the event that (i) the preliminary or final approval of the Settlement described in this Settlement Agreement is not obtained or is reversed on

13

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 14 of 21
appeal; (ii) the Effective Date as described in Section I.K above does not occur for any reason; (iii) entry of the Final Order and Judgment described in Section III.H above is finally reversed; (iv) the Final Order and Judgment is substantially modified by the Court or on appeal, and either Merrill Gardens or Plaintiff Hill does not agree with such modification; and/or (v) the Court does not approve the proposed Consent Decree in the EEOC Action. In such event, this Settlement Agreement shall not be offered in evidence or used in this or any other action for any purpose including, but not limited to, the existence, certification or maintenance of any purported class. In the event of nullification of this Settlement Agreement for the reasons set forth in this paragraph, all negotiations, proceedings, documents and statements made in connection with this Settlement Agreement shall be without prejudice to any party and shall not be admissible into evidence, and shall not be deemed or construed to be an admission or confession by any party of any fact, matter or proposition of law, and shall not be used in any manner for any purpose, and all Parties to this action shall stand in the same position as if this Settlement Agreement had not been negotiated, made or filed with the Court. J. Cooperation For Implementation.
Plaintiff Hill, Plaintiff Bailey, and Merrill Gardens, individually and collectively, together with their respective counsel, agree to take all actions necessary to obtain preliminary approval of this Settlement Agreement and its plan for notice, final approval of this Settlement Agreement, and entry of the Final Order and Judgment dismissing this action with prejudice as to Plaintiff Hill and all Class Members. Plaintiff Hill, Plaintiff Bailey, and Merrill Gardens also agree to take all actions necessary to obtain dismissal of the Hill Action, all pending lawsuits (except for the EEOC Action), and all other subsequent lawsuits that may be filed by any non opting out Class Member between the time that this Settlement Agreement is executed and the
14

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 15 of 21
Effective Date, relating to the subject matter of the Hill Action against Merrill Gardens, either individually or collectively, for claims covered by the Release. K. Release And Dismissal Of Claims; Covenant Not To Pursue Related Claims.
1. Plaintiff Hill, Plaintiff Bailey, and each Class Member (who has not opted out) agree to the form and substance of the Release that is appended to the attached Notice at Exhibits A-1 and A-2
2. Upon the Effective Date, Plaintiff Hill and Plaintiff Bailey shall have, and each Class Member and the Settlement Class shall be deemed to have, covenanted and agreed that he or she shall not, at any time, institute, cause to be instituted, assist in instituting or permit to be instituted on his or her behalf any proceeding in any state or federal court, in or before any administrative agency, or any other proceeding or otherwise allege or assert any of the claims released against the Released Parties, individually or collectively, as described in the Release.
3. Plaintiff Hill and Plaintiff Bailey agree, and each Class Member shall be deemed to have agreed, to the dismissal with prejudice of the Hill Action. L. Payment to Class Representative of Unknown Class and Payment of Attorneys' Fees
And Expenses. Merrill Gardens agrees to pay to Plaintiff Bailey the gross amount of $1,000, minus applicable deductions and withholdings, which one-time payment is in addition to the amount Plaintiff Bailey will be eligible to receive as a result of her membership in the Unknown Class and for her role as the Representative for the Unknown Class, which representation required her preparation for and participation in the final fairness hearing. Merrill Gardens also agrees to make a one-time payment of $100,000 in attorney fees to Class Counsel. This fee will, in part, pay for any services rendered in the Litigation. Class Counsel, to avoid any apparent conflict of interest and as consideration for the agreed-upon fees to them, agrees to refrain from
15

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 16 of 21
representing any individual, directly or indirectly, in any action against Merrill Gardens in which any allegations are made regarding the Merrill Gardens' purported discriminatory failure to hire during the Application Period. M. Final Report to the Court.
At the conclusion of delivery of consideration to all eligible Class Members, the Parties will jointly report to the Court that the Settlement has been effected and concluded. N. Miscellaneous Provisions.
1. Entire Agreement. This Settlement Agreement and its attachments shall constitute the entire agreement of the Parties in the Hill Action and shall not be subject to any change, modification, amendment, or addition without the express written consent of counsel on behalf of all Parties to the Settlement Agreement and shall be binding and inure to the benefit of the Parties hereof and their representative heirs, successors, and assigns, except that it should be viewed in conjunction with the proposed Consent Decree in the EEOC Action and the Preliminary Approval Order in both the Hill Action and the EEOC Action.
2. Illegality Or Unenforceability Of Provisions. In the event that any provision of this Settlement Agreement shall for any reason be held, in whole or in part, to be invalid, illegal, or unenforceable in any respect, then the Settlement Agreement will be null and void unless Merrill Gardens, the Class Representative, and Class Counsel agree in writing to proceed as if such invalid, illegal, or unenforceable provision had never been included in this Settlement Agreement. If this Settlement Agreement is terminated for any reason prior to issuance by the Court of a Final Order approving the Settlement, or if the Settlement contemplated by this Settlement Agreement is not concluded substantially as described in this Settlement Agreement with an Order of the Court approving the settlement that becomes final after all appeals, then the Settlement Agreement and all other acts taken to effect a settlement shall be void and of no effect
16

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 17 of 21

and shall not be admissible by or against any Party to this Agreement. The Parties to this Settlement Agreement shall use their best efforts to obtain approval of this Settlement

Agreement by the Court. 3. Agreement Mutually Prepared. This Settlement Agreement shall be deemed to
have been mutually prepared by the Parties and shall not be construed against any of them by

reason of authorship. 4. Independent Investigation And Decision. The Parties hereto understand,
acknowledge and agree that they (i) have each performed an independent investigation of the allegations of fact and law made in connection with this action; and (ii) that they each may hereafter discover facts in addition to, or different from, those that they now know or believe to be true with respect to the subject matter of this Settlement Agreement. Nevertheless, it is the Parties' intention to resolve their disputes pursuant to the terms of this Settlement Agreement. In furtherance of their stated intentions, the Settlement Agreement shall remain in full force and effect notwithstanding the discovery of any additional facts or law, or changes in law, and this Settlement Agreement shall not be subject to rescission or modification by reason of any change

or difference in facts or law.

5.

Authority To Enter Into Agreement. The Parties hereby warrant and represent

that the persons signing this Settlement Agreement shall have full power and/or authority to bind

to all terms of this Settlement Agreement of Class Action Settlement every person included

within the definitions of the Settlement Class and Merrill Gardens as set forth in Section II.E

above. 6. No Promise Or Inducement For Release. The Parties hereto warrant and
represent that no promise or inducement has been offered or made for the release in Section

17

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 18 of 21

III.E, and in the attached Release except as herein or therein set forth, that this Settlement Agreement is executed without reliance on any statements or any representations not contained herein, and this Settlement Agreement and the attached Release reflect the entire agreement among the Parties with respect to the terms of the release. The warranties and representations made herein shall survive the execution and delivering of this Settlement Agreement and shall be binding upon the respective heirs, representatives, successors and assigns of each of the Parties.
7. Binding Agreement. Plaintiff Hill, Plaintiff Bailey, and Merrill Gardens,

individually and collectively, expressly agree that the terms of this Settlement Agreement and all

provisions hereof, including all representations, promises, agreements, covenants, and warranties, are contractual and not a mere recital and shall survive the execution of this Settlement Agreement and entry of the Final Order and Judgment and shall continue in full force

and effect thereunder. 8. Receipt Of Advice Of Counsel. The Parties acknowledge, agree and specifically

warrant to each other that they have fully read this Settlement Agreement and the accompanying Release, received independent legal advice with respect to the advisability of entering into this Settlement Agreement concerning the legal effect of this Settlement Agreement, and fully

understand this Settlement Agreement and its effect. 9. Extensions Of Time. The Parties may agree, subject to approval of the Court
when required, to reasonable extensions of time to carry out the provisions of this Settlement

Agreement. 10.

Execution Of Agreement In Counterparts. This Settlement Agreement may be

executed in counterparts by the Parties, and a facsimile signature shall be deemed an original

signature for purposes of this Settlement Agreement.

18

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 19 of 21
11. Retention Of Jurisdiction. The Court shall retain continuing and exclusive jurisdiction over the Parties hereto for the purpose of enforcing, implementing, and interpreting this Settlement Agreement, including jurisdiction over all Class Members, and over the administration and enforcement of the Settlement and the distribution of benefits to Class Members. Any disputes or controversies arising out of or related to the interpretation, enforcement, or implementation of the Settlement shall be made by motion to the Court.
12. Controlling Law. For all issues of procedure relating to this Settlement or this Settlement Agreement, the laws ofthe State of Indiana shall apply.

Dated Dated Dated
Dated

By ____________________________ William Anthony Hill Class Representative

By _____________________________ Golda Bailey Class Representative

By ___________________________
John T. Menzie Shane C. Mulholland BURT, BLEE, DIXON, SUTTON
&BLOOMLLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802
/--,

_B?;/1,:'!t?uct'£cw<: tt-z/'~?c7i

'__.-'. .
i// /.

Title: __,_?r_trr--=-:4_:_:_::.1f),_,f/_"v-'-j_~------------­

For Merrill Gardens LLC

19

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 20 of 21
8. Receipt Of Advice Of Counsel. The Parties acknowledge, agree and specifically warrant to each other that they have fully read this Settlement Agreement and the accompanying Release, received independent legal advice with respect to the advisability of entering into this Settlement Agreement concerning the legal effect of this Settlement Agreement, and fully understand this Settlement Agreement and its effect.
9. Extensions Of Time. The Parties may agree, subject to approval of the Court when required, to reasonable extensions of time to carry out the provisions of this Settlement Agreement.
10. Execution Of Agreement In Counterparts. This Settlement Agreement may be executed in counterparts by the Parties, and a facsimile signature shall be deemed an original signature for purposes of this Settlement Agreement.
11. Retention Of Jurisdiction. The Court shall retain continuing and exclusive jurisdiction over the Parties hereto for the purpose of enforcing, implementing, and interpreting this Settlement Agreement, including jurisdiction over all Class Members, and over the administration and enforcement of the Settlement and the distribution of benefits to Class Members. Any disputes or controversies arising out of or related to the interpretation, enforcement, or implementation of the Settlement shall be made by motion to the Court.
12. Controlling Law. For all issues of procedure relating to this Settlement or this Settlement Agreement, the laws of the State oflndiana shall apply.

Dated

By William Anthony Hill Class Representative
21

USDC IN/ND case 1:04-cv-00248-TLS-RBC document 74 filed 10/28/05 page 21 of 21

Dated Dated
Dated

By
Golda Bailey Class Representative
By
John T. Menzie Shane C. Mulholland BURT, BLEE, DIXON, SUTTON &BLOOMLLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802
By
Title: For Merrill Gardens LLC

22

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.: 1:04-cv-248

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.: 1:05-cv-004

STIPULATED ORDER GRANTING PRELIMINARY APPROVAL TO CLASS ACTION SETTLEMENT, CONDITIONAL CLASS CERTIFICATION,
AND PROPOSED CONSENT DECREE
This StipUlation is for purposes of both of the above-captioned matters, collectively referred to as the "Litigation."
The first, Hill v. Merrill Gardens LLC (the "Hill Action"), was filed on June 25, 2004. In the Hill Action, the Plaintiffs brought action on behalf of themselves and others allegedly
similarly situated. Specifically, they claimed that they and others allegedly similarly situated

were denied employment at the Georgetowne Place community located at 1717 Maplecrest Road, Fort Wayne, Indiana, owned by Merrill Gardens LLC ("Merrill Gardens"), and that the denial of employment was on the basis of race/color, in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., and § 1981 of the Civil Rights Act of 1866,42 U.S.c. § 1981.
On January 4, 2005, the Equal Employment Opportunity Commission ("EEOC") filed Civil Action No. 1:05-CV-004 against Merrill Gardens (the "EEOC Action") under authority granted by 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 -6 ("Title VII"); and § 102 of Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). The EEOC's Complaint and Amended Complaint alleged that Merrill Gardens had a pattern or practice of refusing to hire non-Caucasians because of their race and/or color, in violation of § 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a); alleged that Merrill Gardens failed, in violation of § 709(c), 42 U.S.C. § 2000e-(8)(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought appropriate relief for Caroline Aduro, Samantha Bolden, Jae1a Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful empIoyment practl.ces. I
The Parties in the Litigation recognize that the above-captioned lawsuits are overlapping and therefore have negotiated a proposed resolution of the cases together. The Parties to the above-captioned lawsuits request that the lawsuits be consolidated solely for the purposes of approving the requested class relief in the Hill Action and entry of a proposed Consent Decree in
J Each of these individuals is a part of the proposed class in the Hill Action.
2

the EEOC Action. The Parties now request preliminary approval of the requested class relief in
the Hill Action and a proposed Consent Decree in the EEOC Action. The Parties in the Hill
Action and the EEOC Action agree that the payments proposed under the negotiated resolution
for class members is one and the same, despite the fact that it is memorialized in both the Hill
Action proposed Settlement Action and the EEOC Action proposed Consent Decree.
The Parties submit the Settlement Agreement attached as Exhibit "A" (hereinafter referred to as the "Settlement Agreement") in the Hill Action and the Consent Decree attached as Exhibit "B" (hereinafter referred to as the "Consent Decree") in the EEOC Action to this Court
for preliminary approval. In tendering these proposed agreements together, the Parties have
agreed that the resolution proposed in either requires approval by the Court of the other.
The Court now enters this Order Granting Preliminary Approval to Proposed Class
Action Settlement and Proposed Consent Decree ("Preliminary Approval Order") and FINDS,
CONCLUDES, ORDERS, AND ADJUDGES as follows:
I. Preliminary Order Confirming Class Certification and Approving Notice to Members of the Settlement Class A. Class Certification For purposes of the Hill Action, the Court grants conditional class certification to the
following settlement class:
All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates. The parties identify and seek approval of two subclasses: The "Known Class": Class Members Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman ("Known Class Members"), each of whom participated in the Hill Action and/or
3

the EEOC Action on and/or prior to April 18, 2005. Members of the Known Class are identified as "Known Class Members." The "Unknown Class": Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as "Unknown Class Members." ("Settlement Class.") The Court finds and concludes that the Settlement Class appears to satisfy all requirements of Fed. R. Civ. P. 23(a) and (b)(2) and (b)(3). The Court preliminarily appoints Plaintiff William Anthony Hill ("Plaintiff Hill") as Class Representative of the Known Class and Golda Bailey ("Plaintiff Bailey") as Class Representative of the Unknown Class.2 The Court conditionally appoints Plaintiff Hill's counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class ("Class Counsel"). Class Counsel represents the interests of the Class with respect to the Hill Action. The Court further approves the above-referenced proposed class for purpose of the proposed Consent Decree in the EEOC Action. The EEOC represents the interests of the Settlement Class with respect to the EEOC Action. B. Notice For purposes of both lawsuits, the Court approves the form and content of the Notices to be circulated via print media and the radio at Merrill Gardens' expense during a 30-day period beginning in June 2005 (the "Official Notice Period") pursuant to the schedule attached as
Exhibit "c" and the text and narrative attached as Exhibit "D" (the "Notices"). When potential
Class Members timely contact the EEOC within the Official Notice Period and/or within 14 days thereafter, the EEOC shall send them the appropriate written Notice set forth as Exhibits "A-l
2 Plaintiff Elizebeth Worthman is not being proposed as Class Representative.
4

and A-2" (the "Mailed Notices"). The Notice and Mailed Notices provide sufficient infonnation to infonn members of the Hill Action Settlement Class and EEOC Action Class of the essential tenns of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional infonnation about the Settlement Agreement and Consent Decree, appropriate infonnation about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate infonnation about their right, and the procedures, to object to the tenns of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notice will also fairly and adequately infonn members of the Hill Action Settlement Class that failing to timely obtain, execute, and return the Release attached to this Order as Exhibit "E" (the "Release") will result in them becoming ineligible for payment under the proposed Settlement Agreement and proposed Consent Decree.
If any potential Class Member contacts legal counsel for Merrill Gardens or a manager of Georgetowne Place in response to a notice in the media or based upon some other source, Merrill Gardens will provide the EEOC with contact infonnation as soon as possible but by no later than seven (7) days after receiving the infonnation.
Upon the expiration of the Official Notice Period, counsel for Merrill Gardens shall file a declaration that the Notices have been published in the manner and frequency required by and specified by this Preliminary Approval Order.
The Court hereby finds and concludes that members of the Hill Action Settlement Class will be provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Fed. R. Civ. P. 23.
5

C. Persons Excluded from the Settlement Class The Parties may receive requests for exclusion from the Hill Action Settlement Class and will, within seven (7) days of the Fairness Hearing addressed below, file with the Court a list of those persons who have timely elected to be excluded. All persons named in the list filed with the Court as having filed timely exclusions will be excluded from the Hill Action Settlement Class, will not be bound by the terms of the Hill Action Settlement, and will not be eligible for payment under the Consent Decree. II. Preliminary Approval of the Class Action Settlement The Settlement Agreement appears to be fair, reasonable, and adequate and clearly falls within the appropriate range of possible approval. In essence, the Hill Action Settlement provides that each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release will receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree. III. Releases, Covenant Not to Sue, and Effect of Settlement Agreement A. Releases by Settlement Class Members The Court preliminarily finds that in consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Hill Action Settlement will be found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future officers, directors, employees, attorneys and representatives,
6

or any of them, including any person or entity acting on behalf of or at the direction of any of
them ("Released Parties") as set forth in the Release and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action-known or unknown-that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
B. Covenant Not to Sue
The Court preliminarily finds that in consideration of the terms of the Settlement
Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff
Bailey, who do not opt out of the Settlement will be found, deemed, and adjudged to have (1)
covenanted and agreed that neither Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action
Settlement Class Members, nor anyone authorized to act on behalf of any of them, will
commence, authorize, or accept any benefit from any judicial or administrative action or
proceeding, other than as expressly provided for in the Settlement Agreement and/or Consent
Decree, against the Released Parties, or any of them, in either their personal or corporate
capacity, with respect to any claim, matter, or issue that in any way arises from, is based on, or
7

relates to any alleged loss, harm, or injury allegedly caused by the Released Parties, or any of them, in connection with any application for employment at Merrill Gardens from February 17, 1998, to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
C. Effect of a Final Judicial Determination of Invalidity or Unenforceability If, after the entry by this Court of Judgment, a notice of appeal of Judgment is timely filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden's stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement or to the entry of the proposed Consent Decree in the EEOC Action) shall be null and void, and the parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and tender of the proposed Consent Decree unless all parties agree in writing to abide by the judgment as modified. IV. No Admission of Liability In entering into this agreement or the agreements referenced herein, Merrill Gardens does not admit that any class member in the Litigation would have been hired but for his/her race and/or color or that he/she was discriminated against on the basis of hislher race and/or color or that any claims are or would be timely. Merrill Gardens entered into this Stipulation and the agreements referenced herein to avoid further litigation.
8

Dated I Dated Dated

By.~,. ~ John T. Menzie Shane C. Mulholland BURT) BLEE, DIXON, SUTTON &BLOOMLLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802
COUNSEL FOR PLAINTIFFS IN THE HILL ACTION
By __________________________ Michelle Eisele Kenneth L. Bird EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Suite 1900 101 West Ohio Street Indianapolis, IN 46204
COUNSEL FOR THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION
~JeJnl~ I~.~ Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne, Indiana 46802
COUNSEL FOR MERRILL GARDENS LLC
9

Dated Dated Dated

By ___________________________ John T. Menzie Shane C. Mulholland BURT, BLEE, DIXON, SUTTON &BLOOMLLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802
COUNSEL FOR PLAINTIFFS IN THE HILL ACTION
~~rvru:iA J_l';;~
By _ __ Michelle Eisele Kenneth L. Bird EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Suite 1900 101 West Ohio Street Indianapolis, IN 46204
COUNSEL FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
By ___________________________ Kathleen M. Anderson Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne, Indiana 46802
COUNSEL FOR MERRILL GARDENS LLC
9

APPROVED AND ORDERED

Dated: _ _ _ _ _ _ _ _, 2005

Theresa Springmann Judge, United States District Court Northern District of Indiana

10

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

____________________________________)

)

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

CAUSE: 1:04-CV-248-TLS CAUSE: 1:05-CV-4-TLS

ORDER This matter is before the Court on the Stipulated Order Granting Preliminary Approval to Class Action settlement, Conditional Class Certification, and Proposed Consent Decree (“Stipulation”) proposed by the Defendant, Merrill Gardens, LLC, on June 8, 2005, as Docket Entry 50 in 1:04-CV-248 and Docket Entry 30 in 1:05-CV-4. The Stipulation is for the purposes of both of the above captioned matters, collectively referred to as the “Litigation.”

BACKGROUND The first case, Hill v. Merrill Gardens LLC, 1:04-CV-248 (the “Hill Action”), was filed on June 25, 2004. In the Hill Action, the Plaintiffs brought action on behalf of themselves and others allegedly similarly situated. Specifically, they claimed that they and others allegedly similarly situated were denied employment at the Georgetowne Place community located at 1717 Maplecrest Road, Fort Wayne, Indiana, owned by Merrill Gardens LLC (“Merrill Gardens”), and that the denial of employment was on the basis of race/color, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The second case, EEOC v. Merrill Gardens LLC, 1:05-CV-004 the “EEOC Action”), was filed on January 4, 2005. In the EEOC Action, the Equal Employment Opportunity Commission filed suit against Merrill Gardens (the “EEOC Action”) under authority granted by 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 -6 (“Title VII”); and § 102 of Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). The EEOC’s Complaint and Amended Complaint allege that Merrill Gardens had a pattern or practice of refusing to hire nonCaucasians because of their race and/or color, in violation of § 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a); alleged that Merrill Gardens failed, in violation of § 709(c), 42 U.S.C. § 2000e-(8)(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought appropriate relief for Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful employment practices.1
1 Each of these individuals is a part of the proposed class in the Hill Action.
2

As these two lawsuits overlap, the Parties in the Litigation have negotiated a proposed resolution of the cases together. The Parties request that the lawsuits be consolidated solely for the purposes of approving the requested class relief in the Hill Action and entry of a proposed Consent Decree in the EEOC Action.
The Stipulation requests that the Court grant preliminary approval of the requested class relief in the Hill Action and a proposed Consent Decree in the EEOC Action. The Parties agree that the payments proposed under the negotiated resolution for class members is one and the same, despite the fact that it is memorialized in both the Hill Action proposed Settlement Action and the EEOC Action proposed Consent Decree.
The Parties submit the Settlement Agreement attached as Exhibit “A” (hereinafter referred to as the “Settlement Agreement”) in the Hill Action and the Consent Decree attached as Exhibit “B” (hereinafter referred to as the “Consent Decree”) in the EEOC Action to this Court for preliminary approval. In tendering these proposed agreements together, the Parties have agreed that the resolution proposed in either requires approval by the Court of the other.
TERMS OF THE STIPULATION Having carefully reviewed the Parties submissions and finding them in good order, the Court GRANTS Preliminary Approval to Proposed Class Action Settlement, GRANTS the Proposed Consent Decree (“Preliminary Approval Order”) and FINDS, CONCLUDES, ORDERS, AND ADJUDGES as follows:
3

I. Preliminary Order Confirming Class Certification and Approving Notice to Members of the Settlement Class
A. Class Certification
The Court grants conditional class certification to the following settlement class
in the Hill Action and for the purpose of the proposed Consent Decree in the EEOC
Action:
All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates.
This class consists of two subclasses:
1) The “Known Class”: Class Members Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman (“Known Class Members”), each of whom participated in the Hill Action and/or the EEOC Action on and/or prior to April 18, 2005. Members of the Known Class are identified as “Known Class Members.”
2) The “Unknown Class”: Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as “Unknown Class Members.”
These two subclasses shall together be referred to as the “Settlement Class.” The Court
finds that the Settlement Class appears to satisfy all requirements of Fed. R. Civ. P. 23(a)
and (b)(2) and (b)(3).
The Court preliminarily appoints Plaintiff William Anthony Hill (“Plaintiff Hill”)
as Class Representative of the Known Class and Golda Bailey (“Plaintiff Bailey”) as
4

Class Representative of the Unknown Class.2 The Court conditionally appoints Plaintiff Hill’s counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class (“Class Counsel”). The Class Counsel represents the interests of the Class with respect to the Hill Action.
The EEOC represents the interests of the Settlement Class with respect to the EEOC Action.
B. Notice For purposes of both lawsuits, the Court approves the form and content of the Notices to be circulated via print media and the radio at Merrill Gardens’ expense during a 30-day period beginning in June 2005 (the “Official Notice Period”) pursuant to the schedule attached as Exhibit “C” and the text and narrative attached as Exhibit “D” (the “Notices”).
When potential Class Members timely contact the EEOC within the Official Notice Period and/or within 14 days thereafter, the EEOC shall send them the appropriate written Notice set forth as Exhibits “A-1 and A-2” (the “Mailed Notices”). The Notice and Mailed Notices provide sufficient information to inform members of the Hill Action Settlement Class and EEOC Action Class of the essential terms of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional information about the Settlement Agreement and Consent Decree, appropriate information about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate information about
2 Plaintiff Elizebeth Worthman is not being proposed as Class Representative.
5

their right, and the procedures, to object to the terms of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notice will also fairly and adequately inform members of the Hill Action Settlement Class that failing to timely obtain, execute, and return the Release attached to this Order as Exhibit “E” (the “Release”) will result in them becoming ineligible for payment under the proposed Settlement Agreement and proposed Consent Decree.
If any potential Class Member contacts legal counsel for Merrill Gardens or a manager of Georgetowne Place in response to a notice in the media or based upon some other source, Merrill Gardens will provide the EEOC with contact information as soon as possible but by no later than seven (7) days after receiving the information.
Upon the expiration of the Official Notice Period, counsel for Merrill Gardens shall file a declaration that the Notices have been published in the manner and frequency required by and specified by this Preliminary Approval Order.
The Court hereby finds and concludes that members of the Hill Action Settlement Class will be provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Fed. R. Civ. P. 23.
6

C. Persons Excluded from the Settlement Class The Parties may receive requests for exclusion from the Hill Action Settlement Class and will, within seven (7) days of the Fairness Hearing addressed below, file with the Court a list of those persons who have timely elected to be excluded. All persons named in the list filed with the Court as having filed timely exclusions will be excluded from the Hill Action Settlement Class, will not be bound by the terms of the Hill Action Settlement, and will not be eligible for payment under the Consent Decree.
II. Preliminary Approval of the Class Action Settlement The Settlement Agreement appears to be fair, reasonable, and adequate and falls
within the appropriate range of possible approval. In essence, the Hill Action Settlement provides that each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release will receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree.
III. Releases, Covenant Not to Sue, and Effect of Settlement Agreement A. Releases by Settlement Class Members The Court preliminarily finds that in consideration of the terms of the Settlement
Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Hill Action Settlement will be found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future
7

officers, directors, employees, attorneys and representatives, or any of them, including any person or entity acting on behalf of or at the direction of any of them (“Released Parties”) as set forth in the Release and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action—known or unknown—that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
8

B. Covenant Not to Sue The Court preliminarily finds that in consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Settlement will be found, deemed, and adjudged to have (1) covenanted and agreed that neither Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action Settlement Class Members, nor anyone authorized to act on behalf of any of them, will commence, authorize, or accept any benefit from any judicial or administrative action or proceeding, other than as expressly provided for in the Settlement Agreement and/or Consent Decree, against the Released Parties, or any of them, in either their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by the Released Parties, or any of them, in connection with any application for employment at Merrill Gardens from February 17, 1998, to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
C. Effect of a Final Judicial Determination of Invalidity or Unenforceability
If, after the entry by this Court of Judgment, a notice of appeal of Judgment is timely filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden’s stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement
9

or to the entry of the proposed Consent Decree in the EEOC Action) shall be null and void, and the parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and tender of the proposed Consent Decree unless all parties agree in writing to abide by the judgment as modified.
D. No Admission of Liability In entering into this agreement or the agreements referenced herein, Merrill Gardens does not admit that any class member in the Litigation would have been hired but for his/her race and/or color or that he/she was discriminated against on the basis of his/her race and/or color or that any claims are or would be timely. Merrill Gardens entered into this Stipulation and the agreements referenced herein to avoid further litigation.
CONCLUSION For the reasons and in the manner stated above, the Court GRANTS the Stipulated Order Granting Preliminary Approval to Class Action settlement, Conditional Class Certification, and Proposed Consent Decree (“Stipulation”) proposed by the Defendant, Merrill Gardens, LLC, as Docket Entry 50 in 1:04-CV-248 and Docket Entry 30 in 1:05-CV-4. SO ORDERED on June 16, 2005.
S/ Theresa L. Springmann THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
10