Case 3:00-cv-00779-B-RBB Document 1 Filed 04/18/2000 Page 2 of 7

1 DAVID INGRAM FA # 14955 DANA JOHNSON # 167341
2 DANA CEPHAS #l81847 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3 255 E Temple Street, 4th Floor
Los Angeles. CA 90012 4 Telephone: (213) 894-1082

5
Attorneys for Plaintiff 6 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11 U . S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
12 Plaintiff,
13 v.
14 VULCAN MATERIALS CO., d/b/a
15 CALMAT CO.,

/
CASE NO. '00 cV 0071~.e
COMPLAINT - CIVIL RIGHTS EMPLOYMENT DISCRIMINATION
DEMAND FOR TRIAL EY JURy

(HLs)

16

Defendant.

17

18

NATURE OF THE CASE

19

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

20 Act as amended, to correct intentional and unlawful employment

21 practices on the basis of sex and to make whole Charging Party

22 Penny Adamo. The commission alleges that Ms. Adamo was not hired

23 by Defendant Employer because of her sex (female), in violation

24 of Title VII, as amended, 42 U.S.C. Sections 2000-e ~ ~.

25 ("Title VII") and the 1991 Civil Rights Act.
26 /1/

27 / / /
28 //1

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Case 3:00-cv-00779-B-RBB Document 1 Filed 04/18/2000 Page 3 of 7

1

JURISDICTION AND VENUE

2

1. Jurisdiction of the Court is invoked pursuant to 28

3 U.S.C. Section 451, 1331, 1337, 1343 and 1345. This action is 4 authorized and instituted pursuant to Section 706(f) of Title

5 VII.

6

2. The unlawful employment practices alleged herein were

7 and are now being committed within the jurisdiction of the United

8 States District Court for the Southern District of California.

9

PARIIES

10

3. Plaintiff, U.S. Equal Employment Opportunity Commission

11 (the "Commission"), is an agency of the United States of America

12 charged with the administration, interpretation and enforcement

13 of Title VII and is expressly authorized to bring this action by

14 Section 706(f) of Title VII.

15

4. At all relevant times until at least January 7, 1999.

16 CalMat Co. was a Delaware corporation doing business in the

17 Southern District of California, and continuously had fifteen or

18 more employees.

19

5. On or about January 6, 1999, Defendant Vulcan Materials

20 Co. ("Vulcan") acquired ownership of CalMat Co., which has since

21 that time been a Wholly-owned subsidiary or division of Vulcan

22 doing business as CalMat.

23

6. Defendant Vulcan Materials Corporation ("Vulcan") is a.

24 New Jersey corporation authorized to do business within the

25 Southern District of California since at least January 7, 1999.

26

7. At all relevant times, CalMat has continuously been and

27 is now doing business in the Southern District of the State of

28 California, and has continuously had and does now have at least

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Case 3:00-cv-00779-B-RBB Document 1 Filed 04/18/2000 Page 4 of 7

1 !ifteen (IS) employees.

2

8. At all relevant times since January 7, 1999, Defendant

3 Vulcan has continuously been and is now an employer engaged in an

4 industry affecting commerce within the meaning of Section 701(b),

5 (g) and (h) of Title VII.

6

9. Prior to institution of this lawsuit, all conditions

7 precedent were satisfied. The Commission's representatives

8 attempted to eliminate the unlawful employment practices

9 hereinafter alleged and to affect voluntary compliance with the

10 Act through informal methods of conciliation, conference and

11 persuasion within the meaning of Section 706(b) of Title VII, 42

12 U.S.C. Section 2000e-5(b).

13

CONDITIONS PRECEDiNT

14

10. Since at least June 25, 1996, Defendant Employer has

15 engaged in unlawful employment practices in violation of Section

16 703 of Title VII, 42 U.S.C. Section 2000e-3. The unlawful

17 employment practices include Defendant's refusal to hire Ms.

18 Adamo since June 1996 as a Driver ba~auSQ of her sex. Me. Adamo

19 possE!!lsed a Class "A" California Driv..rs License at the time of

20 her application to the Driver position.

21

11. The effect of the practices complained of above has

22 beE!n to deprive Me. Adamo of equal employment opportunities and

23 to otherwiSE! adversely affect her status as an employee because

24 of her sex.

25

12. The unlawful employment practices complained of above

26 were and are intentional within the meaning of the 1991 Civil

27 Rights Act.

28 / / /

1
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Case 3:00-cv-00779-B-RBB Document 1 Filed 04/18/2000 Page 5 of 7

l~. De!en~ant has acted with malice or reckless

2 indifference to the federally protected rights of Ms. Adamo.

3

4

PRAYER OF RELIEF

5

wherefore, the Commission respectfully requests that this

6 court:

7

A. Grant declaratory relief that Defendant has violated

8 Title VII by failing and refusing to hire Ms. Adamo because of

9 her sex.

10

B. Grant a permanent injunction enjoining Defendant, its

11 officers, successors, assigns and all persons in active concert

12 or participation with it, from engaging in any employment

13 practices which discriminate on the basis of sex.

14

c. order Defendant to institute and carry out poliCies,

15 practices and programs which provide equal employment 16 opportunities for females and which eradicate the effects of past

17 and present unlawful employment practices.

18

D. Grant a judgment requiring the Defendant to make Ms.

19 Adamo whole by paying to her appropriate back pay, int.r.~t, lost

20 benefits and compensatory and punitive damages in an amount to be

21 proven at trial.

22

E. Order Defendant to hire M~. Adamo and provide her with

23 oon~tructive seniority as if .she had been hired on June 25, 1996,

24 for all purposes, including benefits, pension, and provisions of

25 the Defendant's collective bargaining agreement with Local 36 of

20 the International Brotherhood of Teamsters.

27

F. Grant such further relief as the Court deems necessary

28 and proper in the public intereat.

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Case 3:00-cv-00779-B-RBB Document 1 Filed 04/18/2000 Page 6 of 7

1

G. Award the Commission ita coStS in this action.

2

JURY TRIAL DEMAND

3

The Commission requests a jury trial on all questions of

4 fact raised by Complaint.

5

6

Respectfully submitted,

1

S

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

9

C. GREGORY STEWART

10

General Counsel

11 12 13 Date: 14

4 r/IY/IOO

GWENDOLYN YOUNG REAMS
A5Bociate General counsel
~~
TRIAL ATTORNEY

15

U.S. Equal Employment

16

opportunity Commission

Los Angeles District Office

17

255 E. Temple St., 4th rh.

Los Angeles, CA 90012

18

19
LOS ANGELES DISTRICT OFFICE

20

255 E. Temple Street. 4" 1l'l.

Los Angeles, CA 90012

21

(213) 894-1080

22
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 Case 3:00-cv-00779-B-RBB
1 2 3

Document 101

Filed 05/16/2001 Page 2 of 11

I" E- I.."..'· I rL<'\

I

....

"

01 MAY 16 PM 2: 42

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
12 Plaintiff,

CIV. NO. OOCV0779-B (RBB) ORDER DENYING PLAINTIFF'S MOTION FOR

13

vs.

PARTIAL SUMMARY JUDGMENT

14 VULCAN MATERIALS CO. d/b/a 15 CALMATCO.,

16 I.

INTRODUCTION

Defendant.

17
Plaintiff EEOC's Motion for Partial Sumtnruy Judgment on Defendant's Affmnative

18 Defenses came before the Court on May 14,2001. Dana C. Johnson, Esq. appeared on

19 behalf of Plaintiff EEOC. Shawna M. Swanson, Esq. and Christopher Scanlan, Esq.

20 appeared on behalf of Defendant Vulcan Materials Co. Plaintiff argued that Defendant's

21 laches, waiver/estoppel, and failure to mitigate affmnative defenses are either legally or
22
factually devoid of merit. For the reasons explained herein, Plaintitl~ s Motion is DENIED.

23 II.
24 25

BACKGROUND A. Ms. Adamo's AppHcation and Interview. Plaintiff EEOC alleges that Ms. Adamo was not hired by Defendant Vulcan Materials

26

27

28

OOcv0779

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 3 of 11

1 Co" because of her sex, in violation ofTitle VII, as amended, 42 U.S.C. §§ 2000-e!:l RQ.

2 and the 1991 Civil Rights Act.

3

CalMat produces concrete and other construction materials. On June 25, 1996, Ms.

4 Adamo visited CalMat's Mission Valley facility seeking employment as a truck driver. Def.

5 Mem. for Sunun. J. at 2.2 Ms. Adamo alleges that she applied for two truck driver positions:

6 cement mixer driver and plant/pit driver. Ms. Adamo told the woman who greeted her,

7 Christina Hall, that she was interested in the "production driver" position. Hall Decl.~ 12.

8 Ms. Hall told Ms. Adamo that no such a position was available, but there was a mixer driver

9 position available and gave Ms. Adamo an employment application. Id.

10

Ms. Adamo filled out the application, then met with Benny White Sr., the manager of

II CalMat's Mission Valley Transportation Department. Adamo Dep. 61 :11-63:3. Mr. White

12 claims that Ms. Adamo refused the mixer driver position when he told her that the starting

13 salary was $12.22/hour because Ms. Adamo was earning $19.50/hour at her current job.

14 White Dep. 88: 10-24; 89:10-16. Mr. White's contemporaneous notes say that Ms. Adamo

15 rejected the position based on pay. White Dep. 101:2-7 and Ex. 14 thereto. In addition, Mr.

16 White told two other employees, one immediately after the interview, that Ms. Adamo turned

17 down the position. White Dep. 104:6-10; Dyer Dep. 104:4-6, 11-13; Hall Decl. ~ 15.

18

Ms. Adamo claims that she never rejected the position. Rather, she says that she

19 explained to Mr. White several reasons why she was willing to take the pay cut including

20 that her current employer was scheduled to close, she believed overtime pay would close the

21 pay gap, and she wanted steady employment. Adamo Decl. ~ 11. Ms. Adamo also claims

22 that Mr. White discouraged her from taking the job by telling her that the governing

23 collective bargaining agreement was due to expire, causing uncertainty as to whether there

24 would be a strike and the future amount of pay. Ms. Adamo contends that no male

25 applicants were told about the expiration of the collective bargaining agreement.

26

27

IVulcan acquired CaiMat Co., now a wholly owned subSidiary, in 1999. Plaintiff applied for

28 employment at CalMat and her allegations regard CaiMat.

2Defs. Mem. contains the typographical error that Ms. Adamo applied in July, 1996.

- 2-

OOc«J779

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 4 of 11

1

There is conflicting evidence regarding how the interview ended. Mr. White contends

2 that the interview ended when Ms. Adamo said she could not accept the pay cut and Mr.

3 White said that he was sorry that she could not accept the position and thanked her for filling

4 out an application. White Dep. 88: 10-24. Ms. Adamo testified that Mr. White discouraged

5 her throughout the interview by telling her about the potential strike, the pay rate, and saying

6 that he really wanted an experienced driver. Adamo Dep. 77: 14-16. Ms. Adamo testified

7 that the last words she recalled saying were, "If you keep my name on record, if you need a

8 driver, call me." ld. at 85: 16-17. She testified further that she believed the next step in the

9 interview process would be that Mr. White would call Ms. Adamo, but that he never called

10 and she never received a letter. Adamo Dep. 87: I-II. By declaration submitted by the

11 EEOC, Ms. Adamo testified that "White kept stressing that he wanted only experienced

12 mixer drivers, and terminated the interview." Adamo Decl. in Support of EEOC's Opp. to

13 Def. Mot. for Summ. 1. at ~ 12.

14

B. Procedural History.

15

Ms. Adamo filed her discrimination charge with the EEOC on September 30, 1996.

16 The EEOC notified the Defendant of the charge within 10 days. Aronberg Decl. ~ 4. An

17 investigator sent a request for information to Defendant on January 16, 1997. ld. ~ 5. The

18 investigator claims that Defendant did not timely respond and he called Defendant, as well as
19 mailed a pre-subpoena letter, requesting a response by June 8, 1997. ld. ~ 6. The EEOC

20 contends that Defendant provided an incomplete response on July 21, 1997, and there were

21 follow-up phone calls and requests made to the Defendant. At an unspecified time,

22 Defendant provided the information requested. ld. ~~ 7-9. The investigator then contacted

23 Ms. Adamo on December 9, 1997 for her response to Defendant's information. When Ms.

24 Adamo did not respond within 10 days, her charge was dismissed on December 19, 1997.
25 ld. ~ 19. The letter dismissing the charge notified Ms. Adamo of her right to sue within

26 ninety days. Scanlan Decl. Ex. J (EEOC Dismissal and Notice of Rights).

27

On or about May 20, 1998, Ms. Adamo submitted additional evidence and requested

28 that the EEOC reopen the investigation. ld. ~ 11. On June 6, 1998, the EEOC reopened the

-3-

OOcv0779

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 5 of 11

1 charge. Id. ~ 12. on August 28, 1998, the Commission issued a letter of detennination to the
2 parties, finding that Ms. Adamo's charges were true. 1d.1 13. In February 1999, the final

3 conciliation meeting failed.

4

The EEOC flIed this lawsuit on April 18, 2000.

5 III. STANDARD OF LAW FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
6 Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate
7 if the "pleadings, depositions, answers to interrogatories, and admissions on file, together
8 with the affidavits, if any, show that there is no genuine issue as to any material fact and that
9
the moving party is entitled to judgment as a matter oflaw." In considering a motion for
10 summary judgment, the court must examine all the evidence in the light most favorable to the
11 nonmoving party. Anderson y. Liberty Lobby. Inc., 477 U.S. 242, 257 (1986).
12 Summary judgment must be granted if the party responding to the motion fails "to

the burden of proof." Celotex Corp. y. Catrett, 477 U.S. 317, 323 (1986). The evidence
offered need not be in a form admissible at trial to avoid summary judgment. Id. at 324.
16 When the moving party does not bear the burden ofproof, summary judgment is warranted
17
by demonstration of an absence offacts to support the nonmoving party's case. Id. at 325.
18 The Court must determine whether evidence has been presented that would enable a
19 reasonable jury to find for the nonmoving party. Liberty Lobby, 477 U.S. at 249-252. If the
20 Court fmds that no reasonable fact-fmder could, considering the evidence presented by the
21 nonmoving party and the inferences therefrom, fmd in favor of that party, summary judgment
22 is warranted.
23 If the Court is unable to render summary judgment upon an entire case and fmds that
24 a trial is necessary, it shall if practicable grant summary adjudication for any issues as to
25
which, standing alone, summary judgment would be appropriate. &l:: Fed. R. Civ. P. 56(d);
26 see also California y. Campbell, 138 F.3d 772,780 (9th Cir. 1998), cert' denied (Oct. 5,
27 1998).
28

- 4·

OOcv0779

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 6 of 11

1 IV. LACHES

2

A. The EEOC Argues that Defendant Cannot Show a Lack of Diligence or

ResultinK Prejudice.

3

The EEOC argues that there is no evidence to support the laches defense. The

4

elements of laches are a lack of diligence and resulting prejudice. Costello y. United States,

5

365 U.S. 265, 282 (1961), The EEOC contends that there was no inexcusable delay because

6

Defendant was responsible for a ten-month delay in its responses to the EEOC, five months

7

passed between the dismissal of Ms. Adamo's claim and her request to reopen, and six

8

months were spent on conciliation. To account for the fifteen months between the fmal

9

conciliation meeting and service of the complaint, the EEOC states that both the Los Angeles

10

and Washington, D.C. offices reviewed the charge. The EEOC also cites its staffing

11

shortages and a high stafftumover.

12

The EEOC also argues that there was no resulting prejudice because the EEOC was

13

able to contact and depose every witness identified by Defendant. While the EEOC

14

recognizes that several witnesses testified they could no longer remember certain facts, the

15

EEOC says that there is no evidence that the memories faded due to the EEOC's delay and

16

there is other evidence that can fill in the gaps in the witnesses' memories.

17
B.

18

19

20

Defendant also points out that the EEOC's argument that certain interrogatory
27
responses demonstrate a lack of supporting evidence fails in light of the fact that Magistrate
28 Judge Brooks refused to compel further interrogatory responses as excessive under the

·5 •

OOcV0779

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 7 of 11

1 Federal Rules of Civil Procedure. The particular interrogatory cited by the EEOC was found

2 improper. Thus, the Defendant had no duty to supplement its initial responses.

3

As to the merits of the laches defense, Defendant argues that the EEOC's delay was

4 presumptively unreasonable because Ms. Adamo's right to sue expired 90-days after the

5 initial determination letter. Defendant acknowledges that the EEOC is not barred by the

6 same statute oflimitations, but argues that the expiration of the statute oflimitations on Ms.

7 Adamo's claim is evidence that the EEOC did not bring suit within a reasonable period of

8 time. Defendant cites a Southern District of Indiana case fmding that filing suit past the

9 analogous statute oflimitations is a strong indication that the EEOC's delay was

10 unreasonable. EEOC v.lndiana Bell Tel. Co., 641 F.Supp. 115, 123 (S.D.Ind. 1986)

11 (fmding inexcusable a nine-year delay between filing of charge and lawsuit, and three-and-a-

12 half-year delay after the fmalletters of determination, resulting in the loss of testimony of

13 crucial witnesses).

14

In the alternative, Defendant argues that there are triable issues of fact regarding

15 whether the delay was unreasonable, even if not presumptively so. Defendant contends that

16 a high caseload has been rejected as an excuse by the Ninth Circuit. EEOC v. Alioto Fish
17 .co.., 623 F.2d 86, 99 (9th Cir. 1980) ("The agency's workload has been rejected as an excuse

18 for unreasonable delay."). Defendant complains that the EEOC offered no excuse for its

19 delay of fourteen months in filing this lawsuit following the failure of conciliation and Ms.

20 Adamo offers no excuse for waiting five months to ask the EEOC to reopen the charge, after

21 the statute of limitations expired on her ability to bring an individual claim.

22

Finally, Defendant argues it has experienced severe prejudice. Defendant complains

23 of missing witnesses and documents (without citation to evidence), witnesses' testimony that

24 they could not recall key events, the accrual of back pay damages, and that the parent

25 company being sued now bought CalMat well after the events in question.

26

With respect to the EEOC's argument that Defendant should be barred from arguing

27 laches because of the doctrine of unclean hands and Defendant's contribution to the delay,

28 Defendant denies that it is responsible for the ten-month delay ascribed to it and says that the

- 6-

000.0779

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 8 of 11

1 ten-month delay did not impede the lawsuit in any event, because at the close of the

2 investigation period the EEOC concluded that there was no discrimination against Ms.

3 Adamo.

4

C. The EEOC Did Not Show That There Are No Triable Issues of Fact

':atd1~."'hether jt Was Dili2ent and Whether Defendant Has Been

5

6

As a threshold matter, there is no authority providing for a presumption of

7 unreasonableness against the EEOC because the statute oflimitations expired on Ms.

8 Adamo's ability to bring an individual lawsuit. Defendant's authority, Indiana Bell Tel. Co.,

9 641 F.Supp. 115, looked to Sections 1981 and 1983 for the analogous statutes oflimitations.

10 The Southern District of Indiana did not consider whether the expiration of the statute of

II limitations on the complainant's individual claim precluded an EEOC lawsuit. There is

12 simply no statute of limitations governing the EEOC's ability to bring a claim.

13

However, the EEOC did not meet its burden of showing that it was diligent. It simply

14 offers as explanation that it has a high caseload, bigh stafftumover, and that two offices

15 reviewed the charge before filing. It provided no evidence to support its explanation. Given

16 the age of the case at the time the fmal conciliation failed, it is hard to understand why the

17 EEOC waited another fourteen months before filing the lawsuit. For purposes of this

18 motion, it is the EEOC's burden to show the absence of any material issues offact, and it has

19 not done so.

20

Similarly unpersuasive is the EEOC's argument that there are no issues of fact

21 whether Defendant was prejudiced by the witnesses' fading memories. Defendant provided

22 many deposition citations where witnesses testified they could not recall important

23 infonnation. The EEOC's argument that it has evidence to fill in the gaps in witnesses'

24 memories is unavailing. Because the witnesses' memories have faded, they cannot testify

25 whether the evidence supports what they believed at the time of the alleged discrimination.

26 Moreover, the EEOC did not provide any evidence that the faded memories may not be

27 attributable to its delay. Thus, the EEOC did not cany its burden and summary adjudication

28 on the laches defense is denied.

- 7-

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 9 of 11

1 V. WAlVERlESTOPPEL

2

A. The EEOC Araues That Defendant Cannot Show That the EEOC Acted

Inappropriately.

3

The EEOC argues that Defendant cannot show the heightened misconduct required to

4

assert estoppel against the government. Unjted States v. Ruby Co., 588 F.2d 697, 703 (9th

5

Cir. 1978). The EEOC further argues that public policy militates against applying estoppel

6

to the EEOC.

7

As for waiver, the EEOC argues that it cannot waive its right to reopen a case because

8

29 C.F.R. 1061.21 pennits the EEOC to reconsider prior detenninations and provides no

9

time limit in which to do so.

10

B. The Defendant Maues That Waiver and Estoppel Are Applicable Because

11

ofthe Delay.

12

The Defendant responds that it is not arguing that the EEOC's ability to reconsider

13 matters is invalid. Rather, Defendant is arguing that the EEOC's slow reconsideration,

14 followed by the delay in prosecution and the addition of a new claim in this litigation for the

15 plant/pit truck driver position, waived the EEOC's right to file this lawsuit.

16

The Defendant also contends that estoppel is available here to foreclose the EEOC

17 from prosecuting an untimely action in which the EEOC has twice changed its theory of the

18 case. Defendant argues that in the event estoppel is not applicable to the entire case, it is at

19 least applicable to the plant/pit truck driver claim because the EEOC investigation only

20 focused on the mixer driver claim.

21

C. The EEOC Did Not Provide Evidence to Prove the Absence of Any

Material Facts.

22

The EEOC is correct that estoppel should be applied against the government with

23

hesitation. The EEOC is also correct that the governing regulations pennit it to reopen

24

investigations and do not provide any time bar.

25

However, it was the EEOC's burden on this motion to bring forward evidence that its

26

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Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 10 of 11

1 filing the lawsuit. Further, the EEOC provided no authority that the affIrmative defenses of

2 waiver and estoppel may not be applied against it for unreasonable delay. Summary

3 adjudication for Plaintiff is denied on Defendant's waiver and estoppel defenses.

4 VI. FAILURE TO MITIGATE

5

A. The EEOC Contends That Ms. Adamo Took Eyery Ayailable Job.

6

To prove that Ms. Adamo failed to mitigate her damages, Defendant must prove that

7 there were substantially equivalent jobs available that Ms. Adamo could have obtained and

8 that she failed to use reasonable diligence in seeking one. EEOC y. Farmer Bros. Co., 31

9 F.3d 891, 906 (9th Cir. 1994). Ms. Adamo contends that she worked at Roy E. Ladd until it

IO closed in mid-December, 1996. The next day, she reported to the Teamsters' Union hiring

11 hall for another work assignment and that she signed the "out of work" list each month until

12 she received an assignment. She worked as a rock truck driver at Granite from March to

13 October 1997. In October 1997, Ms. Adamo worked at Rasmussen. From December 1997,

14 through January 1998, she drove for Erreca's. From April through October 1998, she drove

15 for Granite. From November 1998 through January 1999, and again from February 1999 to

16 the present, she drove for Yeager. Thus, Plaintiff contends that Defendant cannot prove that

17 Ms. Adamo failed to diligently seek comparable work.

18

B. Defendant Contends That Ms. Adamo Did Not Seek Comparable Work.

19

Defendant responds that Ms. Adamo did not seek comparable work through

20 reasonable diligence. Ms. Adamo is currently on the "AGe" union contract, which covers

21 jobs like the plant/pit driver, but not mixer driver positions. Defendant's expert on labor 22 market statistics and economics, Dr. Amy Aukstikalnis, states that it is unlikely Ms. Adamo 23 could not have found comparable employment, based on an analysis ofjobs available in the 24 San Diego Region. Defendant also complains that Ms. Adamo claims she was willing to take 25 the mixer driver job because of overtime pay, but did not seek out jobs with similar 26 salary/overtime opportunities.

27

C. There Is a Triable Issue of Fact Whether Ms. Adamo Sought Comparable

Work.

28

The EEOC did not refute that Ms. Adamo's contract did not include jobs like the

·9-

OOC\iJ779

Case 3:00-cv-00779-B-RBB Document 101 Filed 05/16/2001 Page 11 of 11

1 mixer driver position. Further, the EEOC did not provide evidence that it was reasonable for

2 Ms. Adamo to only seek employment through the Union. The EEOC did not carry its burden

3 of showing that Ms. Adamo sought comparable jobs and its motion for summary

4 adjudication on the defense of failure to mitigate is denied.

5 VI. CONCLUSION

6

There are triable issues offact on Defendant's laches, waiver/estoppel, and failure to

7 mitigate affmnative defenses. Plaintiff's Motion for Partial Summary Judgment on

8 Defendant's Affmnative Defenses is hereby DENIED.

9

IT IS SO ORDERED.

10

11 DATED:

12

~ UNITED STATES SENIOR DISTRICT JUDGE

13 14 cc:
15

All Parties Magistrate Judge

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 2 of 10

1

2

01 HAY 2S AN 8: 23

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

12

Plaintiff,

13

VS.

14 VULCAN MATERIALS CO., d/b/a/ 15 CALMATCO.,

CIV. NO. OOCV0779-B (NLS)
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY ADJUDICATION

16 17 I.

INTRODUCTION

Defendant.

Defendant Vulcan Materials Co. moved for Summary Judgment, or in the Alternative, 18 19 for Summary Adjudication. This Motion was originally set for hearing on May 14,2001.

20 Pursuant to the EEOC's request to file supplemental briefing to bring a new issue to the

21 Court's attention, the Court moved the hearing to June 4, 2001. The EEOC ultimately

22 decided not to submit supplemental briefmg and the Court took Defendant's Motion under

23 submission. For the reasons explained herein, Defendant's Motion for Summary Judgment is

24 Denied, and Summary Adjudication is granted.

25 II. 26

BACKGROUND Plaintiff EEOC alleges that Ms. Adamo was not hired by Defendant Vulcan Materials

27

28

()(p f

"1"

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Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 3 of 10

1 Co. I because of her sex, in violation of Title VII, as amended. 42 U.S.C. §§ 2000-e ~~.

2 and the 1991 Civil Rights Act.

3

CalMat produces concrete and other construction materials. On June 25, 1996, Ms.

4 Adamo visited CalMat's Mission Valley facility seeking employment as a truck driver. Def. 5 Mem. for Summ. J. at 2. Ms. Adamo alleges that she applied for two truck driver positions: 6 cement mixer driver and plant/pit driver (also called "production" driver). Ms. Adamo told

7 the woman who greeted her, Christina Hall, that she waS interested in the "production driver" 8 position. Hall Decl.~ 12. Ms. Hall told Ms. Adamo that no such a position waS available,

9 but there was a mixer driver position available and gave Ms. Adamo an employment 10 application.!d.

II

Ms. Adamo filled out the application, then met with Benny White Sr., the manager of

12 CalMat's Mission Valley Transportation Department. Adamo Dep. 61: 11-63:3. Mr. White

13 claims that Ms. Adamo refused the mixer driver position when he told her that the starting 14 salary was $12.22lhour because Ms. Adamo was earning $19.50lhour at her current job.

15 White Dep. 88:10-24; 89:10-16. Mr. White's contemporaneous notes say that Ms. Adamo

16 rejected the position based on pay. White Dep. 101:2-7 and Ex. 14 thereto. In addition, Mr.

17 White told two other employees, one immediately after the interview, that Ms. Adamo turned 18 down the position. White Dep. 104:6-10; Dyer Dep. 104:4-6, 11-13; Hall Decl. ~ IS.

19

Ms. Adamo claims that she never rejected the position. Rather, she says that she

20 explained to Mr. White several reasons why she was willing to take the pay cut including

21 that her current employer was scheduled to close, she believed overtime pay would close the
22 pay gap, and she wanted steady employment. Adamo Decl. ~ II. Ms. Adamo also claims
23 that Mr. White discouraged her from taking the job by telling her that the governing

24 collective bargaining agreement was due to expire, causing uncertainty as to whether there

25 would be a strike and the future amount of pay. Ms. Adamo contends that no male

26 applicants were told about the expiration of the collective bargaining agreement.

27

28

IYulcan acquired CalMat Co., now a wholly owned subsidiary. in 1999. Plaintiff applied for

employment at CalMa! and her allegations regard CalMa!.

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Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 4 of 10

1

There is conflicting evidence regarding how the interview ended. Mr. White contends

2 that the interview ended when Ms. Adamo said she could not accept the pay cut and Mr.

3 White said that he was sorry that she could not accept the position and thanked her for filling

4 out an application. White Dep. 88: 10-24. Ms. Adamo testified that Mr. White discouraged

5 her throughout the interview by telling her about the potential strike, the pay rate, and saying

6 that he really wanted an experienced driver. Adamo Dep. 77: 14-16. Ms. Adamo testified

7 that the last words she recalled saying were, "If you keep my name on record, if you need a

8 driver, call me." !d. at 85: 16·17. She testified further that she believed the next step in the

9 interview process would be that Mr. White would call Ms. Adamo, but that he never called

10 and she never received a letter. Adamo Dep. 87: 1·11. By declaration submitted by the

11 EEOC, Ms. Adamo testified that "White kept stressing that he wanted only experienced

12 mixer drivers, and terminated the interview." Adamo Decl. in Support of EEOC's Opp. to

13 Def. Mot. for Summ. J. at ~ 12. It is undisputed that Ms. Adamo had no experience as a

14 mixer truck driver.

15 III. STANDARDS OF LAW

16

A. Summary Judgment and Summary Adjudication.

17

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate

18 if the "pleadings, depositions, answers to interrogatories, and admissions on file, together

19 with the affidavits, if any, show that there is no genuine issue as to any material fact and that

20 the moving party is entitled to judgment as a matter oflaw." In considering a motion for

21 summary judgment, the court must examine all the evidence in the light most favorable to the

22 nonmoving party. Anderson y. Liberty Lobby. Inc., 477 U.S. 242,257 (1986).

23

Summary judgment must be granted if the party responding to the motion fails "to

24 make a sufficient showing on an essential element of her case with respect to which she has

25 the burden of proof." Celotex Corp. y. Catrett, 477 U.S. 317, 323 (1986). The evidence

26 offered need not be in a form admissible at trial to avoid summary judgment. ld.. at 324.

27 When the moving party does not bear the burden of proof, summary judgment is warranted

28 by demonstration of an absence offacts to support the nonmoving party's case. ld.. at 325.

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Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 5 of 10

1

The Court must detennine whether evidence has been presented that would enable a

2 reasonable juty to fmd for the nonmoving party. Liberty Lobby, 477 U.S. at 249-252. If the

3 Court fmds that no reasonable fact-finder could, considering the evidence presented by the

4 nonmoving party and the inferences therefrom, fmd in favor of that party, summary judgment

5 is warranted.

6

If the Court is unable to render summary judgment upon an entire case and flnds that

7 a trial is necessary, it shall if practicable grant summary adjudication for any issues as to

8 which, standing alone, summary judgment would be appropriate. ~ Fed. R. Civ. P. 56(d);

9 see also CaHfornia y. Campbell, 138 F.3d 772, 780 (9th Cir. 1998), cert. denied (Oct. 5,

10 1998).

11

B. Title VII Burdens of Proof.

12

The substantive law governing a Title VII failure to hire case is set forth in

13 McDonnell Douslas Corp y. Green, 411 U.S. 792, 802 (1973), and its progeny. McDonneJJ

14 DOUi!as sets forth the order of presentation and facts that must be shown at each step. First,

15 the plaintiff must establish a prima!acie case of discrimination. To establish the prima!acie

16 case, the plaintiff must show that:

the plaintiff belongs to a protected class;

she ~as qual.ified for and applied for a position for which the employer was seeking apphcants;

despite these qualifications, she was rejected; and

the position remained open and the employer continued to seek applicants from persons with plaintiff's qualifications.

23

Once the plaintiff establishes the prima facie case, the burden of production, but not

24 persuasion, shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the
25 challenged employment action. ld. The defendant must set forth the reasons for the

26 plaintiff's rejection through admissible evidence. Texas Dept ofComm. Affairs y. Burdine,

27 450 U.S. 248, 254·555 (1981).

28

After the defendant articulates and supports with admissible evidence a legitimate,

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Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 6 of 10

1 nondiscriminatory reason for its action, the burden shifts to the plaintiff to establish that the

2 employer's articulated reason is a pretext for discrimination. The plaintiff may prove pretext

3 "either by directly persuading the court that a discriminatory reason more likely motivated

4 the employer or indirectly by showing that the employer's proffered explanation is unworthy

5 of credence." Id. at 256.

6

"As a general matter, the plaintiff in an employment discrimination action need

7 produce very little evidence in order to overcome an employer's motion for sununary

8 judgment. This is because 'the ultimate question is one that can only be resolved through a

9 searching inquiry -- one that is most appropriately conducted by a factfinder, upon a full

10 record." Chuam: y. Uniy. of Cal Davis. ad. oUr., 225 FJd 1115, 1124 (9th Cir. 2000)

11 (quoting Shinidriu. Columbja Mach., Inc., 80 FJd 1406, 1410 (9th Cir. 1996». When a

12 plaintiff establishes the prima facie case, either through direct or circumstantial evidence, he

13 will "necessarily have raised a genuine issue of material fact with respect to the legitimacy or

14 bona fides of the employer's articulated reason for its employment decision." Lowe y. City

15 ofMonroyja, 775 F.2d 998, 1009 (9th Cif. 1986). Furthermore, when there is evidence

16 beyond the McDonnell Douilas presumption, "a factual question will almost always exist

17 with respect to any claim of a nondiscriminatory reason." Sischo-Nownejad y. Mercer

18 Comm. College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991).

19 IV. ARGUMENTS

20

A. The Defendant Argues That Ms. Adamo Cannot Demonstrate the Second

and Fourth Steps of the Prima Facie Case or Prove Pretext.

21

Defendant claims that Plaintiff cannot show: (1) step 2 of the primafacie case - that

22

she applied for a position for which the employer was seeking applicants, and (2) step 4 of

23

the prima facie case· that the position remained open and the employer continued to seek

24

applicants from persons with plaintiffs qualifications. Defendant further contends that

25

Plaintiff cannot show pretext because it cannot show that CalMat's business justifications -

26

that it believed Ms. Adamo rejected the mixer driver position and that there were no plant/pit

27

driver positions available when Ms. Adamo inquired· are false.

28

Defendant claims that the plant/pit truck driver position was not available when Ms.

- 5-

00<v0779,sjo

Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 7 of 10

1 Adamo inquired. Ms. Hall testified that there were no such positions available on June 25,

2 1996. Hall Decl. ~ 11. Kyle Smith was hired on June 14, 1996, just before Ms. Adamo

3 inquired. ld.~ 9. Ms. Hall testified that a plant/pit job did not open again for two months.

4 The next plant/pit driver hired applied on August 23, 1996 and was hired on August 29,

5 1996.ld. ~~ 16·17. Ms. Hall declared that openings only arose one at a time. Hall Decl. ~ 6.

6 An additional male job applicant testified that he was also told that there was no plant/pit

7 truck driver position available around the same time as Ms. Adamo's application. Belyou

8 Decl. ~ 5. Mr. Belyou's application is dated June 27, 1996, two days after Ms. Adamo

9 applied. ld. Ex. A.

10

To refute the EEOC's evidence of job application logs showing that there was an

11 application accepted for the position within a few days of Ms. Adamo's inquiry, Defendant

12 points out that it records every application, whether a position was available or not.

13

Defendant also points out that the person who told Ms. Adamo that the plant/pit truck

14 driver was not available was a woman (Ms. Hall), and that same woman arranged an

15 interview for the mixer driver position. Thus, Defendant argues it is not reasonable to find

16 that Ms. Hall was engaging in discrimination when she told Ms. Adamo the position was not

17 available and arranged an interview for the available mixer driver position.

18

Defendant argues that it was Ms. Adamo who turned down the mixer driver position

19 because of the pay cut. The interviewer, Mr. White, testified that she turned down the job

20 because of the pay cut and his contemporaneous notes reflect the same. White Dep. 88:10·

21 24,89:16.16; 101:2-7. Two other employees testified that Mr. White told them that Ms.

22 Adamo turned down the job well before the discrimination charges, and one was told

23 inunediately after the interview. Dyer Dep. 104:4-6, 11-13; Hall Decl. ~ 15.

24

Defendant also points out two inconsistencies in Ms. Adamo's claims. First,

25 Defendant argues that Ms. Adamo's contention that she did not reject the position is

26 undermined by her admission that she never called back to check on the status of her

27 application. Adamo Dep. 87:4-7. Further, Ms. Adamo's testimony that she hoped to hear

28 back about the position undermines her contention that she was rejected at the interview.

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Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 8 of 10

1

B.

2

3

Plaintiff argues that the plant/pit truck driver position was available on the day she

4 applied.2 Two employees testified that Mr. White announced the position. One testified that

5 Mr. White stated the day before Ms. Adamo applied, on June 24, 1996, that there were

6 openings for mixer drivers and production drivers. Lubic Decl. ~ 15. The other testified that

7 he believed there were openings in all driver categories in approximately June of 1996.

8 Germann Decl. ~ 2·4. An application was accepted for the position two days after Ms.

9 Adamo applied from Charles Belyou. Johnson Decl. Ex. 24. (Belyou, however, provided a

10 declaration that he was also told no plant/pit position was available. Belyou Decl. ~5.)

11

Plaintiff says that she never rejected the mixer driver position. She said she told Mr.

12 White she was willing to accept the pay decrease because her current employer was

13 scheduled to close, she believed overtime pay could close the pay gap, and she wanted

14 steady employment. Adamo Decl. ~ 11. Plaintiff contends that Mr. White discouraged her

15 from taking the position by telling her the collective bargaining agreement was due to expire

16 and that Defendant was only looking for experienced mixer drivers. Plaintiff says that none

17 of the six male drivers eventually hired recalled Mr. White mentioning the expiration of the

18 collective bargaining agreement. Bryson Decl. ~ 3; Sengle Dep. 15:1-19; Andrews Dep.

19 15: 14.17:25.3 (Plaintiff admits, however, that she brought up the subject of the strike.

20 Adamo Dep. 68:12.)

21

Plaintiff contends that she has demonstrated the primafacie case because:

22

(1) she is a woman;

23

(2) there is no dispute that Ms. Adamo met the minimum qualifications and that

she applied for the mixer driver position;

24

(3) Ms. Adamo was rejected; and

25

(4) Defendant continued to seek applications from persons with Ms. Adamo's

26

27

2The EEOC's Uniform Guidelines on Employee Selection Procedure define an applicant as "a person

28 who has indicated an interest in being considered for hiring ... " Swanson Decl. Ex. G, p. 11998.

3Plaintiff did not provide citations to evidence from the other threc drivers.

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Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 9 of 10

1 qualifications.

2

Plaintiff also argues that Defendant was not in compliance with mandates by the U.S.

3 Department of Labor's Office of Federal Contract Compliance Programs:

4 V. DISCUSSION

5

Summary adjudication is granted for Defendant and against the EEOC on Plaintiff's

6 plant/pit driver claim because Plaintiff failed to prove step four of the primafacie case - that

7 the position remained open and the employer continued to seek applicants from persons with

8 plaintiffs qualifications. The EEOC's only evidence that a position remained open and

9 Defendant continued seeking applications is an "Applicant Flow Log" showing one applicant

10 for a "production driver" after Ms. Adamo's June 25, 1996 inquiry. Johnson Dec!. Ex. 10.

11 However, that applicant testified that he was told that there was no plant/pit truck driver

12 position available on the day he applied. Belyou Decl. ~ 5. The evidence shows that a

13 plant/pit job did not open again for two months. The next plant/pit driver hired applied on
14 August 23, 1996 and was hired on August 29, 1996.ld. mr 16-17. Because Plaintiff cannot

15 show that there was an open position for which Defendant continued to seek applications,

16 summary adjudication is granted on Plaintiff's plaint/pit (or production) driver claim.

17

Summary adjudication is denied on Defendant's motion for summary adjudication on

18 Plaintiff's mixer driver claim. Mr. White says that Ms. Adamo turned down the position;

19 Ms. Adamo says that she did not turn down the position and actually expressed several

20 reasons why she was willing to take a pay cut. For purposes of this motion all doubts must

21 be resolved in favor of the EEOC. There is a triable issue of fact whether CalMat rejected

22 Ms. Adamo or Ms. Adamo rejected CaiMat.

23 1/1

24 11/

25 11/

26 /II

27 11/

28
4Defendant complains that this infonnation is privileged and irrelevant.

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Case 3:00-cv-00779-B-RBB Document 106 Filed 05/25/2001 Page 10 of 10

1 VI. CONCLUSION

2

Summary adjudication is granted on Plaintitrs plant/pit truck driver claim and denied

3 on Plaintiff's mixer driver claim. Therefore, Defendant's Motion for Summary Judgment is

4 denied. and Summary Adjudication is granted on Plaintiff's plant/pit truck driver claim.

5

IT IS SO ORDERED.

~~

UNITED STATES SENIOR DISTRICT JUDGE

9
10 cc: 11 12
13
14
15 16 17 18 19 20 21 22 23 24 25 26 27 28

All Parties Magistrate Judge

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 Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 2 of 9

1 Anna Y. Park, State Bar No. 164242 Dana Johnson, State Bar No. 187341
2 Lynne Green, State Bar No. 211235 Ralph E. Chamness, Utah State Bar No. 65 1
3 u.S. EQUAL EMPLOYMENT OPPORTUNITY COMMIS ION 255 E. Temple Street, 4th Floor .
4 Los Angeles, CA 90012
Telephone: (213) 894-1082
5 Attorneys for Plaintiff 6 u.S. EQUAL EMPLOYMENT OPPORTUNITY
7 John C. Fox, State Bar No. 135668 Shawna M. Swanson, State Bar No. 169555
8 Kirsten M. Heaton, State Bar No. 189293
Christopher Scanlan, State Bar No. 211724 9 FENWICK & WEST, LLP
Two Palo Alto Square 10 Palo Alto, CA 94306
Telephone: (650) 494-1417
11 Attorneys for Defendant 12 VULCAN MATERIALS CO.

FILED

JUL 31 axn

ISTRICT COUAT

T

FORNIA

OEPUTY

13

14

UNITED STATES DISTRICT COURT

15

SOUTHERN DISTRICT OF CALIFORNIA

16

17 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

18

Plaintiff,

19 v.

20 VULCAN MATERIALS CO., d/b/a 21 CALMAT CO.,

CASE NO. 00cv0779 B (RBB) CONSENT DECREE

22

Defendants.

23

INTRODUCTION

24 1. In this action by Plaintiff, United States Equal

25 Employment Opportunity Commission (the "Commission" or "EEOC"),

26 the Commission's Complaint alleged that CalMat Company,

27 subsequently acquired by Vulcan Materials Co., ("Vulcan")

28 violated Title VII of the Civil Rights Act of 1964, as amended,

1):J~1

ENTERED oNr~":fJL

Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 3 of 9

1 by refusing to hire Penny Adamo because of her sex, female. The

2 Commission sought relief to correct this alleged violation and

3 prevent future violations. Vulcan's Answer denied the 4 allegations of the Complaint and denied that any relief was

5 warranted.

6

2. The parties do not object to the jurisdiction of the

7 Court over this action and waive their rights to a hearing and

8 the entry of findings of fact and conclusions of law.

9

3. As a result of their having engaged in settlement

10 negotiations, the Commission and Vulcan have resolved their

11 differences and have agreed that this action should be finally

12 resolved by entry of this Consent Decree.

13

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:

14

4. This Consent Decree resolves all issues and claims

15 arising out of the Complaint filed by the EEOC herein alleging

16 unlawful employment practices by Vulcan's predecessor, CalMat,

17 and this Consent Decree shall be binding and final as to all such

18 issues and claims.

19

5. This Consent Decree does not constitute an adjudication

20 by this Court on the merits of the allegations of the EEOC's

21 Complaint. Neither the agreement to enter into this Consent

22 Decree nor any provisions hereof constitute an admission by

23 Vulcan of any violation of Title VII and Vulcan expressly denies

24 any violation of Title VII.

25

COVERED FACILITIES

26

6. The provisions of this Consent Decree shall apply to

27 Vulcan's Mission Valley, Tidelands, Lakeside, Carroll Canyon,

28 Oceanside and Pala facilities. The provisions of this Consent

2

Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 4 of 9

1 Decree shall also apply to any successor or assign of Vulcan 2 which operates at any or all these facilities.

3

MONETARY RELIEF TO CHARGING PARTY

4

7. Within ten (10) days of entry of this Consent Decree,

5 Vulcan shall mail, via certified mail, a check payable to Penny

6 Adamo in the gross amount of $34,OOO.00,constituting backpay.

7 FICA and federal and state withholding taxes shall be deducted

8 from this amount. Vulcan shall pay the employer's share of FUTA

9 and FICA on the backpay amount and shall not deduct it from the

10 settlement amount. Concurrent with delivery of the check to

11 Penny Adamo, Vulcan shall deliver to the EEOC a copy of said

12 check.

13

RECORD KEEPING

14

8. All driver position vacancies shall be posted at agreed

15 upon locations within each of Vulcan's San Diego area facilities

16 for at least five (5) days and every such posting shall include

17 the language attached as Exhibit "A."

18

9. Vulcan shall retain accurate records of all

19 applications for driver positions and shall retain all such

20 records for a period of two (2) years.

21

10. The Commission shall have the right to inspect all such

22 records every four (4) months during the period of this Consent

23 Decree, as long as the Commission provides Vulcan with two (2)

24 weeks prior notice of its intention to inspect such records and

25 the identity of the Commission representative. This provision is

26 not intended to limit the right the Commission would otherwise

27 have to investigate charges as allowed by the statutes the

28 Commission enforces.

3

Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 5 of 9

1

TRAINING PROGRAM

2

11. A total of four (4) hours of training on equal

3 employment laws will be provided to all Vulcan managers and human

4 resources personnel working in any San Diego Area facility over

5 the term of this Consent Decree. Such training shall accurately

6 and completely advise the Vulcan employees of laws, rules and

7 regulations concerning equal employment opportunities and the

8 prohibition on retaliation, with specific and practical emphasis

9 on applying such legal requirements within Vulcan's business

10 environment.

11

12. Within sixty (60) days of the entry of the Consent

12 Decree, Vulcan shall submit to the Regional Attorney of the

13 EEOC's Los Angeles District Office the name and credentials of

14 the person whom it selects to conduct the training, as well as a

15 description of the training to be provided, and a copy of an

16 outline of the curriculum developed for the trainees.

17

13. Vulcan agrees that a Commission representative may

18 attend any training program conducted pursuant to this section.

19 Vulcan agrees to provide the Commission with notice of all

20 scheduled training programs, including date, time and location,

21 at least ten (10) workdays prior to the scheduled training. The

22 Commission will identify the representative who will attend prior

23 to the date and time set for such training.

24

COMPLIANCE AND DISPUTE RESOLUTION

25

14. In the event that either party reasonably believes that

26 the other party has failed to comply with any provision of this

27 Consent Decree, the party shall notify the other party in writing

28 of such belief and afford the alleged breaching party a

4

Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 6 of 9
reasonable period of not less than ten (10) business days to
1 remedy the alleged non-compliance.
2 15. If either party disagrees that it has failed to comply
3
with a provision of this Consent Decree, it shall notify the 4
other party in writing within ten (10) business days and
5
thereafter the party may then apply to this Court for appropriate 6
relief, including but not limited to a resolution of the dispute, 7
a determination of whether the party is in compliance and, if 8
not, an appropriate order to enforce the provisions of this 9
Consent Decree.
10 DURATION OF DECREE AND RETENTION OF JURISDICTION
11 16. All provisions of this Consent Decree shall be in
12 effect for a period of one (1) year.
13 17. For the duration of this Consent Decree, this court
14 shall retain jurisdiction for the purpose of enforcing the
15 provisions of this Consent Decree.
16 COSTS OF ADMINISTRATION AND IMPLEMENTATION
17 OF CONSENT DECREE
18 18. Vulcan shall bear all costs associated with its
19 administration and implementation of its obligations under this
20 Consent Decree.
21 COURT COSTS AND ATTORNEYS' FEES
22 19. Each party shall bear its own court costs and
23 attorneys' fees.
24 MISCELLANEOUS PROVISIONS
25 20. If the EEOC issues a press release concerning the
26 EEOC's action against Vulcan and/or the resolution thereof, the
27
EEOC shall provide Vulcan's counsel with a copy of the press 28
release and a list of the individuals and organizations to which
5

Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 7 of 9
the press release is delivered at the same time the press release 1
is issued. 2
21. During the term of this Consent Decree, Vulcan shall
3 provide any potential successor with a copy of this Consent
4 Decree within a reasonable time of not less than thirty (30) days
5 prior to the execution of any document providing for acquisition
6 or assumption of control of any or all of Vulcan'S San Diego area
7 facilities, or any other material change in corporate structure,
8 and shall simultaneously inform the EEOC of same.
9 22. During the term of this Consent Decree, Vulcan and its
10 successors shall assure that each of its officers, managers and
11 supervisors is aware of any term related to his/her job duties.
12
23. This Consent Decree shall be binding upon and 13
enforceable against Vulcan and its successors and assigns.
14
24. This decree shall expire by its own terms at the end of 15
one year from the date of entry, without further action by the
16
parties. 17
25. The parties agree to entry of this decree and judgment 18
subject to final approval by the Court. 19

20 Date: 21

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

22

23

A Y. PAR

REGIONAL ATTOR EY

24

Attorneys for Plaintiff

25

U.S. Equal Employment

Opportunity Commission

26

27

28

6

Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 8 of 9

1 Date:

FENWICK & WEST, LLP

2 3

~~--

~

(

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4

.

C. FOX

SHAWNA M. SWANSON

5

KIRSTEN M. HEATON

CHRISTOPHER SCANLAN

6

Attorneys for Defendant

7

VULCAN MATERIALS CO.

8

9
ORDER 10
The provisions of the foregoing Consent Decree are hereby 11
approved and compliance with all provisions thereof is HEREBY 12
ORDERED. 13

14 Dated: 7~ 3i'?' (JI
15
16
17

Judge United State District Court

18

19

20

21

22

23

24

25

26

27

28

7

Case 3:00-cv-00779-B-RBB Document 131 Filed 07/31/2001 Page 9 of 9
EXHIBIT" A"
JOB VACANCY [Name of Job]
DUTIES/OUALIFICATIONS [To be inserted by Vulcan]
PAY [To be inserted by Vulcan]
This employment opportunity is open to and available to all qualified employees without regard to age, race, sex, national origin, religion, color and/or disability. Each applicant will be accepted and considered on his/her merits.

 
 Case 3:00-cv-00779-B-RBB Document 27 Filed 12/22/2000 Page 2 of 3

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11 U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
12 Plaintiff,
13 v.
14 VULCAN MATERIALS CO., dba
15 CALMAT CO.,

Civil No. OOcv0779 B(RBB)
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S EX PARTE APPLICATION TO QUASH SUBPOENA

16

Defendants.

17

18

On December 14, 2000, Defendant submitted an ex parte

19 application seeking to quash or modify the subpoena ordering Benny

20 White, Jr. to appear for deposition on December 19, 2000.

21 Defendant argues that the deposition will not lead to the discovery

22 of relevant information and claims that because White only received

23 the subpoena on December 4, 2000, he has not been given adequate

24 time to prepare for his deposition.

25

Defendant's ex parte application is GRANTED IN PART AND DENIED

26 IN PART. The subpoena is modified as follows: Benny White Jr. 's

27 deposition shall take place at a time and date agreed on by the

28

1

00cv0779 B(RBB)

Case 3:00-cv-00779-B-RBB Document 27 Filed 12/22/2000 Page 3 of 3

1 parties no later than January 12, 2001. The deposition shall not

2 exceed four hours.

3

IT IS SO ORDERED.

4
5 Date: December (q , 2000
6

RUBEN B. BROOKS -==::::
United States Magistrate Judge

7 cc: Judge Brewster All Parties of Record
8

9

10

11

12

13

14

15

16

17

18

19

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21

22

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K,ICOMMON\BROOKSICASESIEEOC.77910ROEROl

2

00cv0779 BCRBB)

 
 Case 3:00-cv-00779-B-RBB Document 28 Filed 12/22/2000 Page 2 of 8

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4

5

6

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
12 Plaintiff,
13 v.
14
VULCAN MATERIALS CO., dba 15 CALMAT CO.,

Civil No. OOcv0779 B(RBB)
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL FURTHER ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS [DOC. NO. 12]

16

Defendant.

17

18

On December 18, 2000, this Court held a hearing on Plaintiff's

19 motion to compel further answers to interrogatories and production

20 of documents [Doc. No. 12]. Dana Johnson appeared on behalf of the

21 Equal Employment Opportunity Commission. Carol Uyeno, of Fenewick

22 & West, appeared on behalf of Defendant.

23

I. PROCEDURAL HISTORY

24

On September 8, 2000, Plaintiff served its First

25 Interrogatories (~Mot. Ex. A) and First Request to Produce

26 Documents. (Baa Mot. Ex. C.) Vulcan served its responses on

27 October II, 2000, objecting to interrogatory no. 3 and document

28 request nos. 1-3 and 5 as irrelevant, overbroad, and seeking

Jtl

00cv0779 B(RHB)

Case 3:00-cv-00779-B-RBB Document 28 Filed 12/22/2000 Page 3 of 8

1 information that was equally available to the Commission. (sea

2 Mot. Exs. B, D.)

3

The parties met and conferred regarding Vulcan's responses

4 several times between October 17 and 30, 2000. (Johnson Decl. ~

5 3.) The parties were unable to resolve their conflict over

6 Defendant's objections.

7

The parties also discussed the wording of Defendant's response

8 to interrogatory no. 1. Defendant agreed to amend this response,

9 and on November 3, 2000, Vulcan served its First Amended Response

10 which stated, in pertinent part:

11

Relevant witnesses include, without limitation, Benny

White Sr. and penny Adamo. Relevant documents include,

12

without limitation, Adamo's application, and other

documents provided to the EEOC in its initial

13

investigation.

14 (Mot. Ex. E at 4 (emphasis added) . )

15

Plaintiff was not satisfied with the amended response, and on

16 November 9, 2000, the Commission filed its motion to compel further

17 responses and production of documents. Defendant filed an

18 Opposition on December 4, 2000, noting that it had served a Second

19 Amended Response to Plaintiff's interrogatories on November 28,

20 2000. (opp. Ex. D.) The relevant portion of the Second Amended

21 Response stated:

22

Relevant witnesses identified to date include Benny

White, Sr., Tina Hall, and Penny Adamo. Relevant

23

documents identified to date may include Adamo's

application, responsive documents produced in two sets to

24

the EEOC and bates-stamped VUL 000001-000017 and VUL

000018 - 000109, and other documents already provided to

25

the EEOC in its initial investigation.

26 (~ at 4 (emphasis added).)

27

28

2

00cv0779 B(RBB)

Case 3:00-cv-00779-B-RBB Document 28 Filed 12/22/2000 Page 4 of 8

1

Plaintiffs filed a Reply on December 11, 2000, stating that

2 the language employed in the Second Amended Response was still

3 unsatisfactory.

4

II. THE PARTIES' ARGUMENTS

5

The Commission contends that Defendant's Second Amended

6 Responses to interrogatory nos. 1 and 3 are incomplete. Plaintiff

7 also maintains that Defendant has not produced all responsive

8 documents to its production requests.

9 A. Interrogatory No. 1

10

Interrogatory no. 1 sought Defendant's factual basis for

11 denying its Requests to Admit. Specifically, the interrogatory

12 sought "all facts supporting [Vulcan's refusal to admitl, including

13 any witnesses who would testify to such facts and documents which

14 would establish such fact. II (Mot. Ex. A at 2.)

15

Plaintiff objects to the portion of Defendant's Second Amended

16 Response which states that "[rlelevant witnesses identified to date

17 include .

Relevant documents identified to date may include

18 . . . . " (Opp. Ex. D at 4 (emphasis added).) The Commission

19 argues that such equivocal language is impermissible and urges the

20 Court to compel Defendants to supplement its Second Amended

21 Response to clearly state that the list of percipient witnesses and

22 documents it provides is complete.

23 B. Interrogatory No. 3

24

This interrogatory required Vulcan to identify "each woman in

25 each job category of driver (including but not limited to OTR

26 Drivers, Rock Driver, Concrete Mixer Pit and each other type of

27 drivers) separately, on January 1 and June 1 of 1995, 1996, 1997,

28

3

00cv0779 B(RBB)

Case 3:00-cv-00779-B-RBB Document 28 Filed 12/22/2000 Page 5 of 8

1998, 1999, and 2000, and the total number of men in each category

2 on each date." (Mot. Ex. A at 2.)

3

Defendant provided information on the number of men and women

4 hired as mixer drivers during the applicable time period but did

5 not provide information relating to other driver positions and

6 failed to break the information down along the January 1/June 1
7 lines required by the interrogatory. (.s.ae. Opp. Ex. D at 7-8.)

8 Plaintiff asks the Court to compel Vulcan to provide information on

9 all driver positions. Defendant maintains that because this case

10 involves a single applicant who interviewed for a mixer driver

11 position in 1996, the request is overbroad as to both time and job

12 category.

13 C. Production Requests

14

Finally, Plaintiff argues that Defendant has not produced all

15 documents responsive to its First Request to Produce Documents.

16 Specifically, the Commission maintains that Vulcan must produce

17 responsive documents relating to all categories of drivers not just

18 mixer drivers. Defendant disagrees, raising essentially the same

19 argument made with regard to interrogatory no. 3.

20

III. DISCUSSION

21

Defendant's Second Amended Response to interrogatory no. 1 is

22 insufficient. Rule 33 of the Federal Rules of Civil Procedure

23 requires Vulcan to provide a response that is complete to the best
24 of it's knowledge on the date the response is signed. .s.ae. 7 James

25 Wm. Moore at ai., Moore's Federal Practice § 33.102[1] at 33-68 (3d

26 ed. 2000). To the extent Defendant's response is equivocal or

27 suggests that the list of percipient witnesses and relevant

28

4

00cv0779 B(RBB)

Case 3:00-cv-00779-B-RBB Document 28 Filed 12/22/2000 Page 6 of 8

1 documents provided is incomplete, it is improper and must be

2 supplemented. l.d....

3

Defendant must also supplement its Second Amended Response to

4 interrogatory no. 3. Plaintiff is entitled to seek discovery

5 relating to any claim or defense raised in the suit. Fed. R. Civ.

6 P. 26(b) (1). Here, Plaintiff's Complaint alleges that Penny Adamo

7 applied for a position lias a Driver. U (CompI. at 3.) The

8 Commission also claims that Vulcan was interviewing for several

9 driver pOSitions at the time Penny Adamo applied. (Mot. at B.)

10 Because Plaintiff's Complaint appears to refer to a class of

11 positions rather than a single position, information regarding male

12 and female applicants for all driver positions is relevant to the

13 Commission's claim, and interrogatory no. 3 is not overbroad as to

14 job category. .s.ae Vynn v. Regents of the Uni v. of Cal., 656 F. 2d

15 1337, 1342 (9th Cir. 19B1) (holding that defendant's university-

16 wide tenure policy, not just that of the departments directly

17 involved in the suit, was relevant in a disparate impact case) .

18

Plaintiff may also seek supporting and statistical information

19 on Defendant's hiring practices for a reasonable amount of time

20 preceding and following the date Penny Adamo submitted her

21 application to Defendant. .s.ae Onwllka y. Federal Express Corp., 178

22 F.R.D. SOB, 517 (D. Minn. 1997) ("Courts have frequently tailored

23 discovery requests, as to historic company records, to encompass a

24 'reasonable time period,' both before and after the discriminatory

25 event being alleged.")

26

Plaintiff appears to allege that Adamo applied with Defendant

27 on June 25, 1996. (.s.ae Compl. at 3.) Interrogatory no. 3 seeks

28 statistical information from 1995 to 2000. (.s.ae Mot. Ex. A at 2.)

5

OOcv0779 B(RBB)

Case 3:00-cv-00779-B-RBB Document 28 Filed 12/22/2000 Page 7 of 8

Plaintiff's request for information on hiring practices four years

2 following Penny Adamo's application is overbroad as to time. A

3 "reasonable time period" would encompass the period beginning on

4 January 1, 1995, and ending on December 31, 1998, or the last day

5 of the calendar year during which Benny White Sr. was employed by

6 Defendant, whichever is shorter.

7

The same reasoning applies to Production request nos. 1-3 and

8 5. Although the requests are not overbroad as to job category, the

9 requests should be limited to responsive documents relating to the

10 time period beginning on January I, 1995, and ending on the later

11 of December 31, 1998, or the last day of the calendar year during

12 which Benny White, Sr., was employed by the Defendant, whichever is

13 shorter.

14

Finally, the Defendant is not required to compile information

15 to conform with random dates selected by the Plaintiff. It may

16 utilize the provisions of rule 33(d) of the Federal Rules of Civil

17 Procedure.

18

III. CONCLUSION

19

Having considered the arguments raised in the pleadings and

20 during oral argument, the Court rules as follows:

21

1) Plaintiff's motion to compel further response to

22 Interrogatory No. 1 is GRANTED. Defendant shall supplement its

23 Second Amended Response to correct the deficiencies identified in

24 this order.

25

2) Plaintiff's motion to compel further response to

26 Interrogatory No. 3 is GRANTED IN PART AND DENIED IN PART.

27 Defendant shall supplement its Second Amended Response to include

28

6

00cv0779 B(RBB)

Case 3:00-cv-00779-B-RBB Document 28 Filed 12/22/2000 Page 8 of 8

1 information relating to all driver positions during the time period

2 set forth in this order.

3

3) Plaintiff's motion to compel production of documents

4 responsive to production request nos. 1-3 and 5 is GRANTED IN PART

5 AND DENIED IN PART. Defendant shall produce responsive documents

6 relating to all driver positions during the time period set forth

7 in this order.

8

IT IS SO ORDERED.

9

10 Date: December "J-'J.-., 2000
11

RUBEN B. BROOKS United States Magistrate Judge

12 cc: Judge Brewster All Parties of Record
13

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K,\COMMON\BROOKS\CASES\EEOC.779\ORDER.02

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00cv0779 B(RBB)

 
 Case 3:00-cv-00779-B-RBB Document 39 Filed 02/15/2001 Page 2 of 7

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2

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6 7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
II U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
12 Plaintiff,
13
v. 14
VULCAN MATERIALS CO., dba 15 CALMAT CO.,

Civil No. 00cv0779 B(RBB)
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS [DOC. NO. 20]

16

Defendant.

17

18

On February 12, 2001, the Court conducted a hearing on

19 Plaintiff's Motion to Compel Responses to Interrogatories and

20 Production of Documents (Doc. No. 20]. Dana Johnson appeared on

21 behalf of the Equal Employment Opportunity Commission. Christopher
22 Scanlan, of Fenewick & West, appeared on behalf of Defendant.

23

Plaintiff served its second sets of interrogatories and

24 production requests on October 16,2000. (Johnson Decl. ~ 2.)

25 Defendant served its responses on November 15, 2000. (~~ 3.)

26 Plaintiff filed its motion to compel when the parties could not

27 reach agreement on Defendant's responses to interrogatory numbers
28 /11

OO,,()77<) B{RIlB,

Case 3:00-cv-00779-B-RBB Document 39 Filed 02/15/2001 Page 3 of 7

four through six and eight and production requests numbers six, and

2 nine through eleven.

3 A. Interrogatory Nos. 4-6 and Production Request Nos. 6 and 10

4

During oral arguments, the parties stated that they had

5 reached agreement on interrogatory numbers four through six and

6 production request numbers six and ten. Accordingly, Plaintiff's

7 motion to compel regarding these discovery requests is DENIED AS

8 MOOT.

9 B. Interrogatory No. 8

10

Interrogatory number eight seeks "all facts supporting each

11 asserted affirmative defense, including any witnesses who could

12 testify to such facts and documents which tend to establish such

13 facts." (Jonson Decl. Ex. B.) Defendant's Answer asserted

14 thirteen affirmative defenses; however, Judge Rudi M. Brewster has

15 issued an Order [Doc. No. 35] granting Defendant leave to file a

16 First Amended Answer asserting only nine affirmative defenses.

17

The local rules require that a party obtain leave of court

18 before it may serve more than twenty-five interrogatories on an

19 opposing party. S.D. Cal. Civ. L. R. 33.1.a. Discreet subparts of

20 an interrogatory are counted as separate interrogatories. £ee Fed.

21 R. eiv. P. 33(a); Safeco of America v. Rawstron, 181 F.R.D. 441,

22 446 (C. D. Cal. 1998) (holding that interrogatory asking party to

23 identify facts supporting its denial of any request for admission

24 must be construed as a discreet subpart for each request for

25 admission).

26

The EEOC's first set of interrogatories contained three

27 interrogatories. Interrogato:r'y number three required Defendants to

28 identify the factual basis for its refusal to admit any of

2

00cv0779 B(RIlIJ)

Case 3:00-cv-00779-B-RBB Document 39 Filed 02/15/2001 Page 4 of 7

Plaintiff's first set of requests for admission. (~Opp. to

2 Def.'s Nov. 9, 2000, Mot. to Compel Ex. C.) Because this

3 interrogatory required Defendant to address seven requests for

4 admission, it must be counted as seven interrogatories under

S Safeco. Accordingly, Plaint.iff's first set of int.errogat.ories must

6 be construed as containing a minimum of nine interrogatories.

7

Plaintiff's second set. of interrogatories contains twenty

8 three interrogatories - six regular interrogat.ories and two

9 interrogatories that contained multiple subparts. Interrogatory

10 number four requested that Defendant. ident.ify all facts supporting

11 its refusal to admit any of Plaintiff's second set of requests

12 admission. (~Johnson Decl. Ex. Eat 3-5.) This interrogatory

13 required Defendant to address four requests for admission (aae

14 ~), and must be construed as four interrogatories. Interrogatory

15 number eight required Vulcan to identify the factual support for

16 each of its affirmative defenses. (~~ at 10-15.) At the time

17 this interrogatory was served on Defendants, it required Vulcan to

18 address thirteen affirmative defenses (aae~) and therefore must

19 be construed as containing thirteen discreet subparts.

20

In total, Plaintiff served at least thirty-two interrogatories

21 on Defendant -- seven more than the twenty-five interrogatory limit

22 estabLished by local rule number 33.l.a. Plaintiff has exceeded

23 the permissible number of interrogatories without leave of the

24 Court, and its motion to compel further responses to interrogatory

25 number eight is DENIED.

26 C. Production Request No. 9

27

At the outset of the hearing, Plaintiff notified the Court

28 that the only document it was seeking to compel under this request

3

Case 3:00-cv-00779-B-RBB Document 39 Filed 02/15/2001 Page 5 of 7

was the acquisition agreement between CalMat and Vulcan d/b/a

2 CalMat. Plaintiff believes this document will identify pending or

3 potential gender discrimination claims against Defendant involving

4 Benny Whi te, Sr.

5

To the extent this interrogatory seeks information regarding

6 gender discrimination claims against Defendant that involved Benny

7 White, Sr., it is duplicat.ive of production request number eleven,

8 which seeks:

9

any and all documents which constitute, evidence or

reflect complaints, charges, claims or grievances

10

regarding gender discrimination, hostile environment

based on gender or sexual harassment in which Benny

II

White, Sr., was alleged to have, or did have, a

percipient, supervisory, investigatory or decision making

12

roll during his employment with CalMat or Vulcan d/b/a

CalMat.

13

14 (Johnson Decl. Ex. C.) Plaintiff's motion to compel production of

15 documents responsive to this request is DENIED.

16 D. Production Request No. 11

17

Plaintiff claims that Defendant has not produced all documents

18 responsive to t.his request. Specifically, Plaintiff notes that

19 Defendant has not produced all responsive documents from a 1999

20 civil suit brought against. Defendant in state court by Pegi Lubic,

21 a former CalMat employee. Defendant contends that the Lubic

22 document.s are not responsive to product.ion request number eleven.

23 The part.ies also disput.e whet.her or not. Defendant. must give the

24 EEOC notice of any future dat.es it on which it intends t.o depose

25 Pegi Lubic.

26

Plaintiff's mot.ion to compel is GRANTED to the extent. it seeks

27 to compel responsive documents from the Lubic litigation. To the

28

4

00,,077<) III RBB I

Case 3:00-cv-00779-B-RBB Document 39 Filed 02/15/2001 Page 6 of 7

extent Defendant has possession or control of responsive documents

2 from the Lubic case, it must produce them.

3

Plaintiff's motion to require Defendant to give it notice of

4 any future deposition dates in tte Lubic case is DENIED. A party

5 deposing a witness is only required to serve notice of the

6 deposition on other parties to the action. Sae Fed. R. Civ. P.

7 30 (b) (1). Because it is not a party to the Lubic case, Plaintiff

8 is not entitled to notice of future depositions in the Lubic case.

9 Defendant does, however, have a continuing duty to supplement its

10 response to production request number eleven and must produce any

II future Lubic documents that are responsive to this request. Fed.

12 R. civ. P. 26 (e).

13 D. Sane tions

14

The EEOC seeks sanctions under rules 26(g) and 37(a) (4) (A) of

15 the Federal Rules of Civil Procedure. plaintiff seeks rule 26(g)

16 sanctions based on Defense counsel's failure to disclose the Lubic

17 documents in response to production request number eleven and seeks

18 rule 37 sanctions to recover its cost in bringing the motion to

19 compel.

20

Defendant argues that rule 26(g) sanctions are not appropriate

21 because: 1) Defense counsel reasonably believed that the Lubic

22 documents were not responsive to production request number eleven;

23 and 2) defense counsel's administrative staff conducted an

24 extensive search and did not uncover the Lubic documents. Neither

25 argument is persuasive.

26

To the extent defense counsel believed the Lubic documents

27 were not responsive to request number eleven, the bel ief was not

28 substantially justified. Further, the fact that defense counsel's

5

OOcv0779 BOWB)

Case 3:00-cv-00779-B-RBB Document 39 Filed 02/15/2001 Page 7 of 7

administrative staff rat.her t.han defense counsel herself conducted

2 the search for documents responsive to this request does not

3 relieve defense counsel from her dut.ies under rule 26(g). Defense

4 counsel's signature on Defendant's discovery responses cert.ified

5 that she had a good faith belief that the responses were accurate.
6 s.ae Fed. R. Civ. P. 26 (9) (1). Here, at.torney Carol Uyeno signed

7 Defendant's responses at approximately the same time she and

8 attorney Shawna Swanson were working on the Lubic case. Ms. Uyeno

9 should reasonably have known t.hat the Lubic document.s were

10 responsive to product.ion request number eleven. Plaintiff's motion

11 for' sanctions under rule 26 (g) is GRANTED. Sanctions in the amount

12 of $500.00 are imposed on defense counsel Fenewick & West. Payment

13 shall be made to the Department of the Treasury or other

14 appropriat.e agency no later than March 14, 2001.

15

Plaintiff's request for cost.s under rule 37 is DENIED.

16

17

IT IS SO ORDERED.

18
, 19 Date: February I~ 2001
20

RUBEN B. BROOKS United States Magistrate Judge

21 cc: Judge Brewster All Parties of Record
22

23

24

25

26

27

28

K:{'OMMON\BROOKS'CASESI[EOC.77910RDER,OJ

6

00,,0779 B(RBBI

 
 Case 3:00-cv-00779-B-RBB Document 50 Filed 04/04/2001 Page 2 of 3

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UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
12
Plaintiff I
13
v.
14 VULCAN MATERIALS CO., dba
15 CALMAT CO.,

Civil No. OOcv0779 B(RBB)
ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION TO SHORTEN TIME; DENYING PLAINTIFF'S EX PARTE MOTION TO COMPEL

16

Defendants.

17

18

On March 21, 2001, Plaintiff submitted an Ex Parte Application

19 For An Order Shortening Time For Hearing Of Motion To Compel [Doc.

20 No. 42]. Shortly thereafter, on March 29, 2001, Plaintiff

21 submitted its Ex Parte Motion To Compel Attendance Of 30(B) (6)

22 Witness. The EEOC contends that it must file both requests on an

23 ex parte basis in order to comply with the April 9, 2001, discovery

24 cutoff date set in the Court's Case Management Conference Order

25 [Doc. No. 101.

26

Defendant opposes Plaintiff's request to shorten time.

27 Specifically, Vulcan states that the parties have not met and

28

50

00cv0779 B(RBB)

Case 3:00-cv-00779-B-RBB Document 50 Filed 04/04/2001 Page 3 of 3

conferred on the disputed issues and notes that it is willing to

2 waive any defense based on the discovery cut-off date.

3

Plaintiff's application to shorten time is GRANTED. However,

4 an Ex Parte Application submitted shortly before the discovery

5 cutoff is an inappropriate vehicle for resolving the merits of

6 these disputes prior to the deadline, especially in the absence of

7 a meeting and conference of counsel on the discovery issues.

8 Because Defendant is willing to extend the discovery cutoff date,

9 there is no reason to hear the motions on an ex parte basis. A

10 stipulation to extend the discovery deadline or a noticed motion

11 are the preferred procedures.

12

The parties shall meet and confer on the disputed issues no

13 later than April 13, 2001. If the discovery disputes cannot be

14 resolved by the parties, Plaintiff may file a noticed motion to

15 compel by April 20, 2001; Defendant may file its opposition by

16 April 27, 2001. The parties may notice the hearing for May 14,

17 2001, at 10:00 a.m. Counsel are advised that, absent compelling

18 reasons, the Court generally applies the amendments to the

19 discovery rules only to cases filed after December 1, 2000.

20

IT IS SO ORDERED.

21
22 Date: April L , 2001
23 cc: Judge Brewster All Parties
24

RUBEN B. BROOKS United States Magistrate Judge

25

26

27

28

K:ICOMMON\BROOKSICASESIEEOC.77910RDER.04

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oocv0779 B(RBB)

 
 CM/ECF - casd - Docket Report

https://ecf.casd.uscourts.gov/cgi-bin/DktRpt.pl?546648720453416-L_9...

REFER, SEALDC, TERMED
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:00-cv-00779-B-RBB

EEOC v. Vulcan Materials Co Assigned to: Judge Rudi M. Brewster Referred to: Magistrate Judge Ruben B. Brooks Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 04/18/2000 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission U.S.

represented by Anna Y Park US Equal Employment Opportunity Commission 255 East Temple Street Fourth Floor Los Angeles, CA 90012 (213)894-1076 Fax: (213)894-1301 Email: anna.park@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Cephas Johnson US Equal Employment Opportunity Commission 255 East Temple Street Fourth Floor Los Angeles, CA 90012 (213)894-1076 Fax: (213)894-1301 TERMINATED: 05/23/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Mark Graham US Equal Employment Opportunity Commission 1130 22nd Street South Birmingham, AL 35205 (205)731-1172 TERMINATED: 05/23/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynne A Green Equal Employment Opportunity

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V.
Defendant
Vulcan Materials Co doing business as Calmat Co

Commission 255 East Temple Street Suite 400 Los Angeles, CA 90012-3334 (213)894-1083 Fax: (213)894-1301 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ralph E Chamness Equal Employment Opportunity Commission 255 East Temple Street Suite 400 Los Angeles, CA 90012-3334 (213)894-1083 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Shawna M Swanson Fenwick and West LLP Two Palo Alto Square Palo Alto, CA 94306 (650)494-0600 Fax: (650)494-1417 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/18/2000 04/18/2000 07/03/2000 07/03/2000
07/19/2000 08/09/2000

#

Docket Text

1 Complaint Filed; (referred to Magistrate Judge Nita L. Stormes) Receipt No/Amt of Fee: Fee waived (atty maint) (dkt clerk) (Entered: 04/20/2000)
2 Summons issued (dkt clerk) (Entered: 04/20/2000)
3 Answer to complaint by defendant Vulcan Materials Co (axr) (Entered: 07/05/2000)
4 Minutes: Enter Order by Magistrate Judge Nita L. Stormes recusing herself from the case Case referred to Magistrate Judge Ruben B. Brooks Court Reporter: n/a (axr) (Entered: 07/11/2000)
5 Notice and Order for ENE conf by Magistrate Judge Ruben B. Brooks E.N.E. Conference set for 10:00 8/11/00 (axr) (Entered: 07/19/2000)
6 Ex parte Application by defendant Vulcan Materials Co for telephonic appearance by Calmat Co. at ENE conf; (rec'd in docketing 8/14/00) (axr)

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08/09/2000 08/09/2000
08/11/2000
08/15/2000
10/23/2000
11/09/2000 11/09/2000 11/09/2000 12/04/2000 12/04/2000 12/04/2000 12/11/2000

Modified on 08/14/2000 (Entered: 08/14/2000)
7 Declaration of Shawna M. Swanson by defendant Vulcan Materials Co re ex parte application [6-1]; (rec'd in docketing 8/14/00) (axr) (Entered: 08/14/2000)
8 Minutes: Enter Order by Magistrate Judge Ruben B. Brooks granting application [6-1]; Defendant's ex parte application is granted; Defendant's client representative may appear telephonically at the 8/11/00 ENE conf; copies to counsel of record; Court Reporter: n/a; (rec'd in docketing 8/14/00) (axr) (Entered: 08/14/2000)
9 Minutes: Enter Order by Magistrate Judge Ruben B. Brooks; ENE conf was held 8/11/00; A case management conf was immediately conducted A Settlement conference is set for 3:00 10/23/00 All parties and counsel shall be present at the conf; Parties other than individuals shall bring a non lawyer representative with complete authority to enter into a binding settlement and claims adjuster, if appropriate; Counsel notified at conf and in case management conf order; Court Reporter: n/a (axr) Modified on 08/14/2000 (Entered: 08/14/2000)
10 Scheduling Order by Magistrate Judge Ruben B. Brooks; An ENE conf and a case management conf were held 8/11/00; Memo of cont of facts/law fld by 05/28/01 ; Proposed final p/t conf ord by 06/04/01 ; Settlement Conf set for 3:00 10/23/00 ;pretrial conference set for 10:30 6/11/01 ;Court trial set for 9:00 6/26/01 (axr) (Entered: 08/15/2000)
11 Order by Magistrate Judge Ruben B. Brooks; A settlement conf was held A further Settlement conference set for 2:00 2/6/01 All parties and counsel shall be present at the conf; Parties other than individuals shall bring a non lawyer representative with complete authority to enter into a binding settlement and claims adjuster, if appropriate (axr) (Entered: 10/25/2000)
12 Notice of Motion and Motion by plaintiff EEOC to compel responses and interrogatories and the production of documents [ motion(s) referred to Judge Rudi M. Brewster] motion hrg set for 12/18/00 at 10:30am (axr) (Entered: 11/13/2000)
13 Memorandum of points and authorities by plaintiff EEOC in support of motion to compel responses and interrogatories and the production of documents [12-1] (axr) (Entered: 11/13/2000)
14 Declaration of Dana C. Johnson by plaintiff EEOC re motion to compel responses and interrogatories and the production of documents [12-1] (axr) (Entered: 11/13/2000)
15 Opposition by defendant Vulcan Materials Co to pla's motion to compel responses and interrogatories and the production of documents [12-1] (tkl) (Entered: 12/05/2000)
16 Declaration of Tina Hall by defendant Vulcan Materials Co re motion response [15-1] (tkl) (Entered: 12/05/2000)
17 Declaration of Carol A. Uyeno by defendant Vulcan Materials Co re motion response [15-1] (tkl) (Entered: 12/05/2000)
18 Reply by plaintiff EEOC (jah) (Entered: 12/12/2000)

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12/11/2000 12/15/2000 12/15/2000 12/15/2000 12/15/2000 12/18/2000 12/22/2000 12/22/2000 12/22/2000 12/22/2000 01/19/2001
01/29/2001 01/29/2001

19 Declaration of Dana C. Johnson by plaintiff EEOC in support of reply [18-1] (jah) (Entered: 12/12/2000)
20 Notice of Motion and Motion by plaintiff EEOC to compel responses to interrogatories , and the production of documents (2nd set) [ motion(s) referred to Magistrate Judge Ruben B. Brooks ] motion hrg set for 1/29/01 10:30 (tkl) (Entered: 12/15/2000)
21 Memorandum of points and authorities by plaintiff EEOC in support of motion to compel responses to interrogatories [20-1], in support of motion the production of documents (2nd set) [20-2] (tkl) (Entered: 12/15/2000)
22 Declaration of Pegi Lubic by plaintiff EEOC re motion to compel responses to interrogatories [20-1], re motion the production of documents (2nd set) [20-2] (tkl) (Entered: 12/15/2000)
23 Declaration of Dana Johnson by plaintiff EEOC re motion to compel responses to interrogatories [20-1], re motion the production of documents (2nd set) [20-2]; t/w exhibits (tkl) (Entered: 12/15/2000)
24 Order by Magistrate Judge Ruben B. Brooks: a hrg was held on pla's motion to compel and dft's ex parte application to quash subpoena [12-1] (tkl) (Entered: 12/21/2000)
25 Ex Parte Motion and Motion by defendant Vulcan Materials Co for stay , for protective order to squash or limit the subpoena of Benny White Jr [ motions referred to Magistrate Judge Ruben B. Brooks ], (tkl) (Entered: 12/26/2000)
26 Memorandum of points and authorities by defendant Vulcan Materials Co in support of motion for stay [25-1], in support of motion for protective order to squash or limit the subpoena of Benny White Jr [25-2] (tkl) (Entered: 12/26/2000)
27 Order by Magistrate Judge Ruben B. Brooks granting in part/denying in part dft's ex parte appl to squash subpoena [25-1] [25-2]; Benny White Jr.'s deposition shall take place at a time and date agreed on by the parties by 1/12/01; deposition shall not exceed 4 hrs (tkl) (Entered: 12/26/2000)
28 Order by Magistrate Judge Ruben B. Brooks granting in part/denying in part pla's motion to compel further answers to interrogatories and the production of documents [12-1] (tkl) (Entered: 12/26/2000)
29 Stipulation and Order thereon re scheduling of the EEOC's motion to compel and deposition of Ben White, Jr. by Magistrate Judge Ruben B. Brooks: CALMAT shall have until 1/29/01 to file its opposition; EEOC shall have until 2/5/01 to file its reply; hrg currently set 1/29/01 is continued to 2/12/01 (tkl) (Entered: 01/22/2001)
30 Mem of p/a in Opposition by defendant Vulcan Materials Co to EEOC's motion to compel responses to interrogatories [20-1], motion the production of documents (2nd set) [20-2] (tkl) (Entered: 01/30/2001)
31 Declaration of Christopher T. Scanlan by plaintiff EEOC in support of dft's opposition to EEOC's motion [30-1] (tkl) (Entered: 01/30/2001)

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02/05/2001
02/05/2001 02/05/2001 02/08/2001 02/12/2001
02/13/2001
02/13/2001 02/15/2001
03/12/2001 03/20/2001 03/21/2001 03/21/2001 03/21/2001 04/03/2001 04/03/2001
04/03/2001 04/03/2001

32 Reply by plaintiff EEOC to opposition to motion to compel responses to interrogatories [20-1], motion the production of documents (2nd set) [20-2] (tkl) (Entered: 02/06/2001)
33 Declaration of Anthony Ruggieri by plaintiff EEOC in support of pla EEOC's reply [32-1] (tkl) (Entered: 02/06/2001)
34 Declaration of Dana C. Johnson by plaintiff EEOC re motion in support of pla EEOC's reply [32-1] (tkl) (Entered: 02/06/2001)
35 Stipulation and Order thereon by Judge Rudi M. Brewster granting dft leave to file amd answer (tkl) (Entered: 02/08/2001)
36 Order by Magistrate Judge Ruben B. Brooks Settlement Conference set for 1:30 on 5/14/01 ; Hearing was held on Pla's motion to compel [20-1] [20-2] (tkl) (Entered: 02/14/2001)
37 DISCREPANCY ORDER by Magistrate Judge Ruben B. Brooks accepting document: erratas from plaintiff EEOC , non-compliance with, document is to be filed nunc pro tunc to the date received (tkl) (Entered: 02/14/2001)
38 Notice of errata by plaintiff EEOC; NUNC PRO TUNC (tkl) (Entered: 02/14/2001)
39 Order by Magistrate Judge Ruben B. Brooks granting in part/denying in part pla's motion to compel responses to interrogatories [20-1], and production of documents (2nd set) [20-2] (tkl) (Entered: 02/15/2001)
40 Dft expert witness Declaration regarding Amy Aukstikalnis (dkt clerk) (Entered: 03/13/2001)
41 Order by Magistrate Judge Ruben B. Brooks: telephonic discovery conf was held re: pla's deposition in Birmingham, Alabama (tkl) (Entered: 03/21/2001)
42 Ex Parte Application by plaintiff EEOC for an order shortening time for hrg of mot to compel (tkl) (Entered: 03/22/2001)
43 Notice by plaintiff EEOC of ex parte application for an order shortening time for hrg of mot to compel (tkl) (Entered: 03/22/2001)
44 Declaration of Dana C Johnson by plaintiff EEOC re application [42-1] (tkl) (Entered: 03/22/2001)
45 Pro Hac Vice approved on behalf of plaintiff EEOC for J Mark Graham (joeh) (Entered: 04/04/2001)
46 Opposition by defendant Vulcan Materials Co to EEOC's 3/21/01 ex parte mot to compel and req for sanctions against US Equal Employment and/or its cnsl of record (tkl) (Entered: 04/05/2001)
47 Declaration of Christina G. Hall by defendant Vulcan Materials Co re motion response [46-1] (tkl) (Entered: 04/05/2001)
48 Declaration of Christopher T. Scanlan by defendant Vulcan Materials Co re motion response [46-1] (tkl) (Entered: 04/05/2001)

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04/04/2001
04/04/2001
04/09/2001 04/09/2001 04/09/2001 04/09/2001 04/09/2001 04/09/2001 04/09/2001 04/16/2001
04/16/2001 04/16/2001 04/16/2001 04/17/2001 04/18/2001

49 Opposition to application to shorten time by defendant Vulcan Materials Co to Notice by plaintiff EEOC of ex parte application for an order shortening time for hrg of mot to compel (per court docket as Opposition to application to shorten time) (ksr) (Entered: 04/10/2001)
50 Order by Magistrate Judge Ruben B. Brooks granting plaintiff's ex parte application to shorten time [49-1] denying plaintiff's exparte motion to compel [42-1]; pla may file a noticed motion to compel by 4/20/01; dft may file its opposition by 4/27/01. The parties may notice the hearing for 5/14/01 at 10:00 am. (ksr) Modified on 04/13/2001 (Entered: 04/10/2001)
51 Notice of Motion and Motion by plaintiff EEOC for partial summary judgment on dft's affirmative defenses [ motion(s) referred to Judge Rudi M. Brewster ]; motion hrg set for 5/7/01 at 10:30 am (dkt clerk) (Entered: 04/10/2001)
52 Memorandum of points and authorities by plaintiff EEOC in support of motion for partial summary judgment on dft's affirmative defenses [51-1] (dkt clerk) (Entered: 04/10/2001)
53 Certification by plaintiff EEOC of meet and confer in connection with pla EEOC's mot for partial summary jgm on dft's affirmative defenses. (dkt clerk) (Entered: 04/10/2001)
54 Declaration of Steven Aronberg by plaintiff EEOC re motion for partial summary judgment on dft's affirmative defenses [51-1] (dkt clerk) (Entered: 04/10/2001)
55 Declaration of Penny Adamo by plaintiff EEOC re motion for partial summary judgment on dft's affirmative defenses [51-1] (dkt clerk) (Entered: 04/10/2001)
56 Declaration of Dana C. Johnson by plaintiff EEOC re motion for partial summary judgment on dft's affirmative defenses [51-1] (dkt clerk) (Entered: 04/10/2001)
57 Amd Declaration of Dana C. Johnson by plaintiff EEOC ex parte appl fo an order compelling attendance of 30(B)(6) designate for continuation of deposition and for lv to take supernumerary deposition [56-1] (tkl) (Entered: 04/10/2001)
58 Notice of Motion and Motion by defendant Vulcan Materials Co for summary judgment , or in the alternative for summary adjudication of issues [ motion(s) referred to Judge Rudi M. Brewster ], [ motion(s) referred to Judge Rudi M. Brewster ] motion hrg set for 5/14/01 10:30 (tkl) (Entered: 04/17/2001)
59 Declaration of Christina G. Hall by defendant Vulcan Materials Co re motion for summary judgment [58-1] (tkl) (Entered: 04/17/2001)
60 Memorandum of points and authorities by defendant Vulcan Materials Co in support of motion for summary judgment [58-1], in support of motion for summary adjudication of issues [58-2] (tkl) (Entered: 04/17/2001)
61 Declaration of Shawna M. Swanson by defendant Vulcan Materials Co re motion for summary judgment [58-1], re motion for summary adjudication of issues [58-2] (tkl) (Entered: 04/17/2001)
62 Proof of service by defendant Vulcan Materials Co (tkl) (Entered: 04/18/2001)
63 Stipulation re extended time for expert discovery and Order thereone by Magistrate Judge Ruben B. Brooks: depositions be completed by 5/21/01 (tkl)

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04/20/2001 04/24/2001 04/30/2001
04/30/2001 04/30/2001 04/30/2001 04/30/2001 04/30/2001 04/30/2001 04/30/2001 04/30/2001 05/02/2001 05/02/2001 05/02/2001 05/02/2001

(Entered: 04/19/2001)
64 Stipulation and Order on changing hearing date by Judge Rudi M. Brewster: re motion for partial summary judgment on dft's affirmative defenses [51-1] motion hearing set for 10:30 5/14/01 (ksr) (Entered: 04/20/2001)
65 Stipulation on changing hrg date for pla EEOC's motion for partial summary judgment on dft's affirmative defenses [51-1] at 10:30 5/14/01 and order thereon by Judge Rudi M. Brewster (tkl) (Entered: 04/25/2001)
66 Opposition by defendant Vulcan Materials Co to pla's motion for partial summary judgment on dft's affirmative defenses [51-1] and req for addl discovery and/or a rule 56(f) continuance relating to the EEOC's deliberative processes (tkl) (Entered: 05/01/2001)
66 Opposition to pla's mot for partial sum jgm and Request by for addl discovery and/or a rule 56(f) continuance relating to the EEOC's deliberative processes (tkl) (Entered: 05/01/2001)
67 Responses and objections by defendant Vulcan Materials Co to pla's proposed stmt of uncontroverted facts (tkl) (Entered: 05/01/2001)
68 Declaration of Laura Perez by defendant Vulcan Materials Co in opposition to pla's mot for partial sum jgm [66-1] (tkl) (Entered: 05/01/2001)
69 Declaration of Paul D. Hesse by defendant Vulcan Materials Co in support of dft's opposition to pla's mot for partial sum jgm [66-1] (tkl) (Entered: 05/01/2001)
70 Declaration of Christopher T. Scanlan by defendant Vulcan Materials Co in support of dft's opposition to pla's mot for partial sum jgm [66-1] and dft's req for addl discovery (tkl) (Entered: 05/01/2001)
71 Declaration of Shawn M. Swanson by defendant Vulcan Materials Co in support of dft's opposition to pla's mot for partial sum jgm [66-1] (tkl) (Entered: 05/01/2001)
72 Declaration of Amy M. Aukstikalnis by defendant Vulcan Materials Co in support of dft's opposition to pla's mot for partial sum jgm [66-1] (tkl) (Entered: 05/01/2001)
73 Declaration of William A. Bossen by defendant Vulcan Materials Co in support of dft's opposition to pla's mot for partial sum jgm [66-1] (tkl) (Entered: 05/01/2001)
74 Document Sealed (pursuant to Court Order) (tkl) (Entered: 05/03/2001)
75 Document Sealed (pursuant to Court Order) - pla's opposition to dft's sum jgm (tkl) (Entered: 05/03/2001)
76 Document Sealed (pursuant to Court Order) - Decl of Penny Adamo (tkl) (Entered: 05/03/2001)
77 Document Sealed (pursuant to Court Order) - Decl of Robert Germann (tkl) (Entered: 05/03/2001)

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05/02/2001 05/02/2001 05/02/2001 05/02/2001 05/04/2001
05/07/2001
05/07/2001
05/07/2001 05/07/2001 05/07/2001 05/07/2001
05/07/2001 05/07/2001 05/07/2001 05/07/2001 05/07/2001 05/07/2001

78 Document Sealed (pursuant to Court Order) - Decl of Brian Bryson (tkl) (Entered: 05/03/2001)
79 Document Sealed (pursuant to Court Order) Decl of Pegi Lubic (tkl) (Entered: 05/03/2001)
80 Document Sealed (pursuant to Court Order) - Decl of Dan C Johnson (tkl) (Entered: 05/03/2001)
81 Document Sealed (pursuant to Court Order) - Pla's separate stmt of uncontroverted facts (tkl) (Entered: 05/03/2001)
82 DISCREPANCY ORDER by Judge Rudi M. Brewster rejecting document: counter-mot to strike from defendant Vulcan Materials Co , non-compliance with local rule 7.1.e or 47.1.b.1 (tkl) (Entered: 05/07/2001)
83 Reply by plaintiff EEOC to opposition to motion for partial summary judgment on dft's affirmative defenses [51-1] and opposition to dft' s req for addl discovery and/or Rule 56(f) continuance relating to EEOC's deliberative process (tkl) (Entered: 05/08/2001)
84 Declaration of Dana C. Johnson by plaintiff EEOC in support of reply [83-1] w/ its mot for partial sum jgm on dft's affirmative defenses (tkl) (Entered: 05/08/2001)
85 Opposition by plaintiff EEOC to dft's objection to pla's proposed stmt of uncontroverted facts (tkl) (Entered: 05/08/2001)
86 Objections by defendant Vulcan Materials Co to evidence in support of its mot for partial sum jgm (tkl) (Entered: 05/08/2001)
87 Objections by defendant Vulcan Materials Co to evidence in opposition to dft's mot for sum jgm (tkl) (Entered: 05/08/2001)
88 Cross-Motion by defendant Vulcan Materials Co to strike in reply to pla's opposition to dft's mot for sum jgm [ motion(s) referred to Judge Rudi M. Brewster ] motion hrg set for 5/14/01 10:30 (tkl) (Entered: 05/08/2001)
89 Declaration of Charles E. Belyeu by defendant Vulcan Materials Co re motion to strike [88-1] (tkl) (Entered: 05/08/2001)
90 Reply Memorandum of points and authorities by defendant Vulcan Materials Co in support of dft's mot for sum jgm [88-1] (tkl) (Entered: 05/08/2001)
91 Declaration of Christina G Hall by defendant Vulcan Materials Co in support of dft's mot for sum jgm [88-1] (tkl) (Entered: 05/08/2001)
92 Reply Declaration of Shawna M. Swanson by defendant Vulcan Materials Co in support of dft's mot for sum jgm [88-1] (tkl) (Entered: 05/08/2001)
93 Reply Declaration of Amy M. Aukstikalnis by defendant Vulcan Materials Co in support of dft's motion for sum jgm [88-1] (tkl) (Entered: 05/08/2001)
94 Counter-Motion by plaintiff EEOC to strike in support of mot for partial sum jgm on dft's affirmative defenses [ motion(s) referred to Judge Rudi M. Brewster ] motion hrg set for 5/14/01 10:30 (tkl) (Entered: 05/08/2001)

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05/07/2001 05/07/2001 05/14/2001 05/15/2001 05/15/2001
05/15/2001
05/16/2001 05/18/2001 05/22/2001
05/23/2001 05/23/2001

95 Opposition by plaintiff EEOC to dft's countermotion to strike [88-1] in support of dft's opposition to pla's mot for partial sum jgm (tkl) (Entered: 05/08/2001)
96 Declaration of Steven Aronberg by plaintiff EEOC's reply in connection w/ its mot for partial sum jgm on dft's affirmative defenses [95-1] (tkl) (Entered: 05/08/2001)
97 Order by Magistrate Judge Ruben B. Brooks; A settlement conf was held A telephonic Settlement conference set for 8:30 5/18/01 before Magistrate Judge Ruben B. Brooks (axr) (Entered: 05/15/2001)
98 Minutes: Enter Order by Judge Rudi M. Brewster that the motion for partial summary judgment on dft's affirmative defenses [51-1] is under submission; Court will issue order within 10 days (trial 6/26/01); Court Reporter: S. Dinsmore (axr) (Entered: 05/16/2001)
99 Stipulation regarding authenticity and business records status and Order thereon by Judge Rudi M. Brewster; It is stipulated between the parties that the documents produced to the EEOC by Vulcan are true and correct copies of documents; It is further stipulated that the following documents produced to Vulcan by the EEOC are true and correct copies of documents; It is further stipulated that, for the purposes of this stipulation, a faxed signature will have the same force and effect as a signature penned in ink; Pursuant to the stipulation of the parties regarding authenticity and business records status, it is so ordered (axr) Modified on 05/16/2001 (Entered: 05/16/2001)
100 Stipulation and Order by Judge Rudi M. Brewster: re motion for summary judgment [58-1] or, in the alternative, summary adjudication [58-2] It is stipulated between the parties that the hearing on dft's motion shall be continued to 6/4/01 at 10:30am; EEOC shall file a supplemental opposition to dft's motion on or before 5/18/01; Dft shall file a supplemental reply on or before 5/25/01; It is further stipulated that, for purposes of this stipulation, a faxed signature will have the same force and effect as a signature penned in ink (axr) Modified on 05/16/2001 (Entered: 05/16/2001)
101 Order by Judge Rudi M. Brewster denying motion for partial summary judgment on dft's affirmative defenses [51-1] (bar) (Entered: 05/17/2001)
102 Order by Magistrate Judge Ruben B. Brooks A telephonic Settlement conference was held before Magistrate Judge Ruben B. Brooks (axr) (Entered: 05/21/2001)
104 Stipulation and Order regarding dft's assumption of liability and pla's withdrawal of related discovery by Judge Rudi M. Brewster: It is stipulated between the parties that dft Vulcan Materials Co assumed all of CalMat's potential liability in this action but not limited to liability for punitive damages; It is further stipulated that the EEOC shall withdraw the pendings discovery requests; It is further stipulated that for purposes of this stipulation, a faxed signature will have the same force and effect as a signature penned in ink (axr) (Entered: 05/25/2001)
103 Pro Hac Vice approved on behalf of plaintiff EEOC for Ralph E Chamness (joeh) (Entered: 05/24/2001)
117 ***** RECEIVED IN DOCKETING 5/31/01***** Notice of Substitution of counsel: signed by Judge Rudi M. Brewster; Designated counsel of record for the

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05/25/2001
05/25/2001 05/25/2001 05/25/2001 05/29/2001 05/29/2001 05/29/2001 05/29/2001 05/29/2001 05/29/2001 05/29/2001

pla is amended to include the appearances of attys Anna Y. Park, Lynne A. Green and Ralph Chamness in the place and stead of Mary Jo O'Neill, Dana Cephas, David Ingram, and Kathleen Mulligan (atty maint) (axr) Modified on 05/31/2001 (Entered: 05/31/2001)
105 Order to Show Cause re punitive damages by Judge Rudi M. Brewster Order to show cause set for 10:30 6/25/01 before Judge Rudi M. Brewster in Courtroom Two Pla's opening brief shall be filed by 6/8/01; Dft's opposition brief shall be filed by 6/15/01; Pla's reply brief shall be filed by 6/22/01 (axr) (Entered: 05/29/2001)
106 Order by Judge Rudi M. Brewster; Summary adjudication is granted on pla's plant/pit truck driver claim and denied on pla's mixer driver claim; Therefore, dft's motion for summary judgment is denied, and summary adjudication is granted on pla's plant/pit truck driver claim (axr) (Entered: 05/29/2001)
107 Memorandum of Contentions of Fact and Law; Exhibit List and Witness List by plaintiff EEOC (axr) Modified on 05/29/2001 (Entered: 05/29/2001)
108 Memorandum of Contentions of Fact and Law by defendant Vulcan Materials Co (axr) (Entered: 05/29/2001)
109 Notice of Motion and Motion in limine by plaintiff EEOC to exclude evidence concerning Penny Adamo's receipt of unemployment benefits and tax return information [ motion(s) referred to Judge Rudi M. Brewster] motion hrg set for 06/26/01 at 9:00am (axr) (Entered: 05/31/2001)
110 Memorandum of points and authorities by plaintiff EEOC in support of motion to exclude evidence concerning Penny Adamo's receipt of unemployment benefits and tax return information [109-1] (axr) (Entered: 05/31/2001)
111 Notice of Motion and Motion in limine by plaintiff EEOC to exclude evidence concerning and testimony by any female truck driver hired by Benny White,Sr. after 1996 [ motion(s) referred to Judge Rudi M. Brewster] motion hrg set for 06/26/01 at 9:00am (axr) (Entered: 05/31/2001)
112 Memorandum of points and authorities by plaintiff EEOC in support of motion to exclude evidence concerning and testimony by any female truck driver hired by Benny White,Sr. after 1996 [111-1] (axr) (Entered: 05/31/2001)
113 Notice of Motion and Motion in limine by plaintiff EEOC to exclude evidence of the EEOC's investigation and determination of Pegi Lubic's charge against defendant [motion(s) referred to Judge Rudi M. Brewster] motion hrg set for 06/26/01 at 9:00am (axr) (Entered: 05/31/2001)
114 Memorandum of points and authorities by plaintiff EEOC in support of motion to exclude evidence of the EEOC's investigation and determination of Pegi Lubic's charge against defendant [113-1] (axr) (Entered: 05/31/2001)
115 Notice of Motion and Motion in limine by plaintiff EEOC to exclude testimony regarding any rumor of a sexual relationship between Penny Adamo and Pegi Lubic [motion(s) referred to Judge Rudi M. Brewster] motion hrg set for 06/26/01 at 9:00am (axr) (Entered: 05/31/2001)

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05/29/2001
05/30/2001 06/01/2001 06/04/2001 06/06/2001
06/08/2001 06/08/2001 06/11/2001
06/13/2001 06/13/2001 06/14/2001 06/19/2001
06/19/2001

116 Memorandum of points and authorities by plaintiff EEOC in support of motion to exclude testimony regarding any rumor of a sexual relationship between Penny Adamo and Pegi Lubic [115-1] (axr) Modified on 05/31/2001 (Entered: 05/31/2001)
119 Amended certificates of service by plaintiff EEOC of: Pla EEOC's Notices of motion and motions in limine [109-1] and p/a [110-1] (ksr) Modified on 06/05/2001 (Entered: 06/05/2001)
118 Memorandum of Contention of Facts and Law by defendant Vulcan Materials Co (axr) (Entered: 06/04/2001)
120 Joint final pretrial order by defendant Vulcan Materials Co (tkl) (Entered: 06/06/2001)
121 Order directing parties to comply with Local Rule 83.9 by Judge Rudi M. Brewster; Counsel for both parties, are directed not to send letters to the court; So that the record will be complete, the court orders that the attached letter sent to the court be filed as an exhibit to this order (letter attached) (axr) Modified on 06/07/2001 (Entered: 06/07/2001)
122 Brief showing cause why summary adjudication should not be granted against its claim for punitive damages by plaintiff EEOC (axr) (Entered: 06/12/2001)
123 Declaration of Lynne A. Green by plaintiff EEOC re brief [122-1] (axr) (Entered: 06/12/2001)
126 Minutes: Enter Order by Judge Rudi M. Brewster; Pre trial hearing held; Pre trial order filed 6/4/01; Motions [88-1] and [94-1] are moot from the courts ruling on the summary judgment motion Motion hearing set for 10:30 6/18/01 before Judge Rudi M. Brewster Dfts to file by 6/13/01; pla's respond by 6/15/01; Court Reporter: S. Dinsmore (axr) (Entered: 06/15/2001)
124 Notice of lodgment by defendant Vulcan Materials Co of previously filed evidence in support of its bench trial brief on the issues of laches, waiver, and estoppel (axr) (Entered: 06/13/2001)
125 Bench trial Brief on the issues of Laches, Waiver and Estoppel by defendant Vulcan Materials Co (axr) (Entered: 06/14/2001)
127 Order by Magistrate Judge Ruben B. Brooks Settlement Disposition Conf set for 8:00 6/28/01 before Magistrate Judge Ruben B. Brooks (axr) (Entered: 06/19/2001)
128 Stipulation concerning tentative settlement and request to continue all scheduled dates for a period of at least 30 days and Order by Judge Rudi M. Brewster: The parties have reached a tentative settlement of this action; All scheduled dates in this action shall be continued for a period of at least 30 days (axr) Modified on 06/22/2001 (Entered: 06/20/2001)
129 Order by Magistrate Judge Ruben B. Brooks; The settlement disposition conf on 6/28/01 is vacated; The parties have submitted a consent decree (axr) (Entered: 06/22/2001)

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07/31/2001 07/31/2001

130 Stipulation and Order by Judge Rudi M. Brewster : to enter Consent Decree (ksr) (Entered: 07/31/2001)
131 Consent Judgment by Judge Rudi M. Brewster vacating hearing re motion to exclude testimony regarding any rumor of a sexual relationship between Penny Adamo and Pegi Lubic [115-1], vacating hearing re motion to exclude evidence of the EEOC's investigation and determination of Pegi Lubic's charge against defendant [113-1], vacating hearing re motion to exclude evidence concerning and testimony by any female truck driver hired by Benny White,Sr. after 1996 [111-1], vacating hearing re motion to exclude evidence concerning Penny Adamo's receipt of unemployment benefits and tax return information [109-1] terminating case (ksr) (Entered: 07/31/2001)

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