Case 2:04-cv-01352-DAE-LRL Document 1 Filed 09/30/2004 Page 1 of 5

Anna Y. Park Sue J. Noh 2 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 3 255 East Temple Street, 4th Floor Los Angeles, CA 90012 4 Telephone: (213) 894-1082 Facsimile: (213) 894-1301 5 Attorneys for Plaintiff 6 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 7

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8

UNITED STATl

CV -S-04-1352-HDM-LRL

9

DISTRIC

10

U.S. EQUAL EMPLOYMENT

11 OPPORTUNITY COMMISSION,

)

)

12

Plaintiff,

)

)

13

v.

)

)

14 REPUBLIC SERVICES, INC. and DOES )

1-10, Inclusive.

)

15

)

Defendants.

)

16

)

COMPLAINT - CIVIL RIGHTS EMPLOYMENT DISCRIMINATION
Age Discrimination in Employment Act of 1967, as amended, 29 U.S,c. § 621 et seq.
DEMAND FOR TRIAL BY JURY

17

18

NATURE OF THE ACTION

19

This is an employment discrimination action brought by the United States Equal

20 Employment Opportunity Commission ("EEOC") under the Age Discrimination in Employment

21 Act of 1967, as amended, 29 U.S.c. §§ 621 et seq., (the "ADEA"), to correct unlawful

22 employment practices and to provide relief to the persons who were terminated from

23 employment with Defendant Republic Services, Inc. and/or denied the opportunity to transfer on

24 the basis of their age, forty (40) or above. The EEOC alleges that the Defendants Republic

25 Services, Inc. and Does I-I 0 (collectively "Defendants") terminated and/or denied the

26 opportunity to transfer to employees over age forty (40) on the basis of their ages, in violation of

27 the ADEA.

28 ill

\

Case 2:04-cv-01352-DAE-LRL Document 1 Filed 09/30/2004 Page 2 of 5

1

JURISDICTION AND VENUE

..')

I. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. sections 451, 1331,

3 1337, 1343 and 1345. This action is authorized and instituted pursuant to section 7(b) of the

4 ADEA. 29 U.s.c. § 626(b), which incorporates by reference sections 16(c) and 17 of the Fair

5 Labor Standards Act ofl938, as amended, 29 U.S.C. §§ 216(c) and 217.

6

2. The employment practices alleged herein to be unlawful were committed v,'ithin

7 the jurisdiction ofthe United States District Court for the District of Nevada, Southem Division.

8

PARTIES

9

3. Plaintiff EEOC is an agency of the United States of America charged with the

10 administration, interpretation and enforcement of ADEA and is expressly authorized to bring this

II action under § 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by section 2 of Reorganization

12 Plan No. 1 of 1978, 92 Stat. 3781 and by Public Law 98-532 (1984) 98 Stat. 2705.

13

4. Plaintiff is ignorant of the true names and capacities of Defendants sued as DOES

14' 1 through 10, inclusive, herein and therefore Plaintiff sues said Defendants by sueh fictitious

15 names. Plaintiff reserves the right to amend the complaint to name the DOE defendants

16 individually or corporately as they become known. Plaintiff alleges that each ofthe Defendants

17 named as DOES was in some manner responsible for the acts and omissions alleged herein and

18 Plaintiff will amend the complaint to allege such responsibility when same shall have been

19 ascertained by Plaintiff.

20

5. All of the acts and failures to act alleged herein were duly perform(;:d by and

21 Ettributable to all Ddendants, each acting as a successor, agent, joint employer, inle~'Tated

22 enterprise, employee and/or under the direction and control of the other Defendants, except as

23 otherwise specifically alleged. Said acts and failures to act were within the scope of such agency

24 and/or employment. and each Defendant participated in, approved and/or ratified the unlawful

25 acts and omissions by other Defendants complained of herein. Whenever and wherever reference

26 is made in this Complaint to any act by a Defendant or Defendants, such allegations and

27 reference shall also be deemed to mean the acts and failures to act of each Defendant acting

28 individually, jointly, and/or severally.

Case 2:04-cv-01352-DAE-LRL Document 1 Filed 09/30/2004 Page 3 of 5

6. At all relevant times, Defendant Republic Services, Inc. has continuously been

2 doing business in Clark County in the State of Nevada. Defendants have continuously ,emploYf:d

3 twenty (20) or more employees.

4

7. At all relevant times, Defendant has continuously been an employer engaged in an

5 industry atTecting commerce within the meaning of §§ 2000e-1 (b), (g) and (h) and §§ 11 (b), (g),

6 and (h) of the ADEA, 29 U.S.c. §§ 630(b), (g) and (h).

7

8. It is further alleged on information and belief that the unnamed Defendants in the

8 complaint are alter egos, joint employers, andlor integrated enterprises of Defendant Republic

9 Services, Inc.

10

STATEMENT OF CLAIMS

1 1

9. All conditions precedent to the institution of this lawsuit have been fulfilled.

12 More than thirty (30) days prior to the institution of this lawsuit, Robert LaRocca and William

13 Lacy filed charges of discrimination with the EEOC alleging violations of the ADEA by

14 Defendants. The Commission issued Letters of Determination finding that Defendant

15 discriminated against its employees by terminating them andlor denying them the opportunity to

16 transfer based on their age (over forty), in violation of the ADEA.

17

10. Prior to this lawsuit, the EEOC attempted to eliminate the unlawful employment

18 practices alleged below and to effect voluntary compliance with ADEA through informal

19 methods of conciliation, conference and persuasion within the meaning of section 7(b) of the

20 ADEA, 29 L'.S.C. § 626(b).

21

II. Since at least in or about 2001, Defendant has engaged in unlawful employment

22 practices at its facilities in Sloan, Cheyenne, and/or Henderson, Nevada in violation of the

23 ADEA. The unlawful employment practices include Defendants' termination of and/or denial of

24 th opportunity to transfer to Mr. LaRocca, Mr. Lacy, and other similarly situated persons who

25 were age I1my (40) or above at the time Defendant terminated them. The EEOC does not seek

26 relief on behalf ofMr. LaRocca or Mr. Lacy.

27 li/

28 Iii

Case 2:04-cv-01352-DAE-LRL Document 1 Filed 09/30/2004 Page 4 of 5

1

12. The effect of the practices complained of above in paragraphs II has been to

deprive equal employment opportunities to persons who were age forty (40) or above at the time

Defendants terminated them.

4

13. The unlawful employment practices complained of above were and are willful

5 within the meaning of section 7(b) ofthe ADEA, 29 U.S.C. § 626(b).

6

PRAYER FOR RELIEF

7

Wherefore:, the Commission respectfully requests that this Court:

8

A. Grant a permanent injunction enjoining Defendants, and their officers, successors,

9 assigns and all persons in active concert or participation with them, from engaging in any

10 employment practices which discriminate on the basis of age;

11

B. Order Defendants to institute and carry out policies, practices and programs which

12 provide equal employment opportunities for persons forty (40) years of age and older, and which

13 eradicate the effects of their past and present unlawful employment practices;

14

c. Grant a judgment requiring Defendants to pay persons on whose behalf the EEOC

15 seeks reliefwho were over age forty (40) when they were terminated by and/or denied the

16 opportunity to transfer by Defendants the appropriate back pay, front pay and benefits in an

17 amount to be determined at trial, an equal sum as liquidated damages, and prejudgment interest

18 on the lost pay and benefits;

19

D. Order Defendants to make whole persons who were over age forty (40) when they

20 were temlinated andJor denied the opportunity to transfer by Defendants by providing affimlative

21 relief necessary to eradicate the effects of its unlawful practices including, but not limited to,

22 rightful employment with seniority restored;

23

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

24 interest; and

25

F. Award the Commission its costs in this action.

26 Iii

27 Iii

28 III

Case 2:04-cv-01352-DAE-LRL Document 1 Filed 09/30/2004 Page 5 of 5

1

JURY DEMAND

2

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

3 Dated: September 29, 2004

Respectfully Submitted,

4

ERIC S. DREIBAND

General Counsel

5

JAMES LEE

6

Deputy General Counsel

7

GWENDOLYN YOUNG REAMS

Associate General Counsel

8

U.S. EQUAL EMPLOYMENT

9

OPPORTUNITY COMMISSION

1801 "L" Street, N.W.

10

Washington, D.C. 20507

11

B~

12

Regional Attorney

13

SUEJ. NOH

14

Trial Attorney

15

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

16

255 East Temple Street, 4th Floor

Los Angeles, CA 90012

17

18

19

20

21

22

23

24

25

26

27

28

 
 Case 2:04-cv-01352-DAE-LRL Document 2 Filed 11/22/2004 Page 1 of 6
ORIGINAL

I Anna Y. Park Sue 1. Noh
2 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3 255 East Temple Street, 4th Floor ( .; Los Angeles, CA 90012
4 Telephone: (213) 894-1082 Facsimile: (213) 894-1301
5 Attorneys for Plaintiff
6 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
7

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

U.S. EQUAL EMPLOYMENT

)

II OPPORTUNITY COMMISSION,

)

)

12

Plaintiff,

)

)

13

v.

)

) 14 REPUBLIC SERVICES, INC., REPUBLIC)
SILVER STATE DISPOSAL, INC., and )

15 DOES 1-10, Inclusive.

)

)

16

Defendants.

)

-------------------------)
17

CASE NO. CV-S-04-1352-HDM-LRL
FIRST AMENDED COMPLAINT - CIVIL RIGHTS EMPLOYMENT DISCRIMINATION
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.c. ~ 621 et seq.
DEMAND FOR TRIAL BY JURY

18

19

NATURE OF THE ACTION

20

This is an employment discrimination action brought by the United States Equal

21 Employment Opportunity Commission ("EEOC") under the Age Discrimination in Employment

22 Act of 1967, as amended, 29 U.S.c. §§ 621 et seq., (the "ADEA"), to correct unlawful

23 employment practices and to provide relief to the persons who were terminated from

24 employment with defendants Republic Services, Inc. and/or Republic Silver State Disposal, Inc.

25 and/or denied the opportunity to transfer on the basis of their age, forty (40) or above. The

26 EEOC alleges that the defendants Republic Services, Inc., Republic Silver State Disposal, Inc.,

27 and Does 1-10 (collectively "Defendants") terminated and/or denied the opportunity to transfer to

28 employees over age forty (40) on the basis of their ages, in violation of the ADEA.

Case 2:04-cv-01352-DAE-LRL Document 2 Filed 11/22/2004 Page 2 of 6

Case 2:04-cv-01352-DAE-LRL Document 2 Filed 11/22/2004 Page 3 of 6

I

JURISDICTION AND VENUE

2

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

3 1337, 1343 and 1345. This action is authorized and instituted pursuant to section 7(b) of the

4 ADEA, 29 U.S.c. § 626(b), which incorporates by reference sections 16(c) and 17 of the Fair

5 Labor Standards Act of 1938, as amended, 29 U.S.c. §§ 216(c) and 217.

6

2. The employment practices alleged herein to be unlawful were committed within

7 the jurisdiction of the United States District Court for thc District of Nevada, Southem Division.

8

PARTIES

9

3.

Plaintiff EEOC is an agency of the United States of America charged with the

10 administration, interpretation and enforcement of ADEA and is expressly authorized to bring this

II action under § 7(b) of the ADEA, 29 U.s.c. § 626(b), as amended by section 2 of Reorganization

12 Plan No. I of 1978,92 Stat. 3781 and by Public Law 98-532 (1984) 98 Stat. 2705.

13

4. Plaintiff is ignorant of the true names and capacities of defendants sued as DOES I

14 through 10, inclusive, herein and therefore Plaintiff sues said defendants by such fictitious

15 names. Plaintiff reserves the right to amend the complaint to name the DOE defendants

16 individually or corporately as they become known. Plainti ff alleges that each of the defendants

17 named as DOES was in some manner responsible for the acts and omissions alleged herein and

18 Plaintiff will amend the complaint to allege such responsibility when same shall have been

19 ascertained by Plaintiff.

20

5.

All of the acts and failures to act alleged herein were duly performed by and

21 attributable to all Defendants, each acting as a successor, agent, joint employer, integrated

22 enterprise, employee and/or under the direction and control of the other Defendants, except as

23 otherwise specifically alleged. Said acts and failures to act were within the scope of such agency

24 and/or employment, and each Defendant participated in, approved and/or ratified the unlawful

25 acts and omissions by other Defendants complained of herein. Whenever and wherever reference

26 is made in this Complaint to any act by a defendant or defendants, such allegations and reference

27 shall also be deemed to mean the acts and failures to act of each defendant acting individually,

28 jointly, and/or severally.

Case 2:04-cv-01352-DAE-LRL Document 2 Filed 11/22/2004 Page 4 of 6

I

6. At all relevant times, defendant Republic Services, Inc. has continuously been

2 doing business in Clark County in the State of Nevada and continuously employed twenty (20) or

3 more employees.

4

7. At all relevant times, defendant Republic Silver State Disposal, Inc. has

5 continuously been doing business in Clark County in the State of Nevada and continuously

6 employed twenty (20) or more employees.

7

8. At all relevant times, Defendants have continuously been an employer(s) engaged

8 in an industry affecting commerce within the meaning of ~~ 2000e-l(b), (g) and (h) and ~~ II(b),

9 (g), and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).

10

9. It is further alleged on information and belief that the unnamed Defendants in the

II complaint are alter egos, joint employers, andlor integrated enterprises of defendants Republic

12 Services, Inc. and Republic Silver State Disposal, Inc.

13

STATEMENT OF CLAIMS

14

10. All conditions precedent to the institution of this lawsuit have been fulfilled.

IS More than thirty (30) days prior to the institution of this lawsuit, Robert LaRocca and William

16 Lacy filed charges of discrimination with the EEOC alleging violations of the ADEA by

17 Defendants. The Commission issued Letters of Determination finding that Defendants

18 discriminated against its employees by terminating them andlor denying them the opportunity to

19 transfer based on their age (over forty), in violation of the ADEA.

20

II. Prior to this lawsuit, the EEOC attempted to eliminate the unlawful employment

21 practices alleged below and to effect voluntary compliance with ADEA through informal

22 methods of conciliation, conference and persuasion within the meaning of section 7(b) of the

23 ADEA, 29 U.S.c. § 626(b).

24

12. Since at least in or about 2001, Defendants have engaged in unlawful employment

25 practices at its facilities in Sloan, Cheyenne, andlor Henderson, Nevada in violation of the

26 ADEA. The unlawful employment practices include Defendants' termination of and/or denial of

27 the opportunity to transfer to Mr. LaRocca, Mr. Lacy, and other similarly situated persons who

28 III

Case 2:04-cv-01352-DAE-LRL Document 2 Filed 11/22/2004 Page 5 of 6

1 were age forty (40) or above at the time Defendant terminated them. The EEOC does not seek

2 relief on behalf of Mr. LaRocca or Mr. Lacy.

3

13. The effect of the practices complained of above in paragraphs 12 has been to

4 deprive equal employment opportunities to persons who were age forty (40) or above at the time

5 Defendants terminated them.

6

14. The unlawful employment practices complained of above were and are willful

7 within the meaning of section 7(b) of the ADEA, 29 V.S.c. § 626(b).

8

PRAYER FOR RELIEF

9

Wherefore, the Commission respectfully requests that this Court:

10

A. Grant a permanent injunction enjoining Defendants, and their officers, successors,

I 1 assigns and all persons in active concert or participation with them, from engaging in any

12 employment practices which discriminate on the basis of age;

13

B. Order Defendants to institute and carry out policies, practices and programs which

14 provide equal employment opportunities for persons forty (40) years of age and older, and which

IS eradicate the effects of their past and present unlawful employment practices;

16

C. Grant a judgment requiring Defendants to pay persons on whose behalf the EEOC

17 seeks relief who were over age forty (40) when they were terminated by andlor denied the

18 opportunity to transfer by Defendants the appropriate back pay, front pay and benefits in an

19 amount to be determined at trial, an equal sum as liquidated damages, and prejudgment interest

20 on the lost pay and benefits;

21

D. Order Defendants to make whole persons who were over age forty (40) when they

22 were terminated and/or denied the opportunity to transfer by Defendants by providing affirmative

23 relief necessary to eradicate the effects of its unlawful practices including, but not limited to,

24 rightful employment with seniority restored;

25

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

26 interest; and

27

F. Award the Commission its costs in this action.

28 III

Case 2:04-cv-01352-DAE-LRL Document 2 Filed 11/22/2004 Page 6 of 6

1

JURY DEMAND

2

The Commission requests a jury trial on all questions of fact raised by this First Amended

3 Complaint.

4 Dated: November 19, 2004

Respectfully Submitted,

5

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

6 1

7

BY:'Jl~J~

8

SUEJ. OH

Trial Attorney

9

Attorney for Plaintiff EEOC

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
 Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 1 of 12

1

2

3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

* * *

6

U.S. EQUAL EMPLOYMENT

)

7 OPPORTUNITY COMMISSION,

)

)

8

Plaintiff,

)

9

)

v.

)

10

)

REPUBLIC SERVICES, INC., et al.,

)

11

)

Defendants.

)

12

)

2:04-cv-1352-DAE-LRL O R D E R

13

Before the court is plaintiff EEOC’s Motion for Contempt and to Compel Responses to

14 Discovery and Request for Sanctions (#136), defendants’ Opposition (#142), and the EEOC’s Reply

15 (#143). The EEOC moves the court to compel answers to an interrogatory and the production of

16 documents from defendants, which oppose the motion on a variety of grounds.

17

BACKGROUND

18

This is an employment discrimination action brought by United States Equal Employment

19 Opportunity Commission (the “EEOC”) under the Age Discrimination in Employment Act of 1967, as

20 amended, 29 U.S.C. § 621 et seq., (the “ADEA”), to correct unlawful employment practices and to

21 provide relief to persons terminated from employment with defendants Republic Services, Inc. (“RSI”)

22 and/or Republic Silver State Disposal, Inc. (“RSSD”) (collectively “defendants”) and/or denied the

23 opportunity to transfer on the basis of their age, forty (40) and above. (Amended Compl. (#2) at 1.)

24

In January 2005, the EEOC began propounding Requests for Production of documents and

25 interrogatories to defendants. (Reply (#143) at 1.) In mid-2006, it filed two motions to compel

26 complete responses to a variety of its document requests and interrogatories (##28,55). On September

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 2 of 12

1 18, 2006, the court held a hearing on the motions and granted them eight days later, ordering:

2

1) Defendants shall, by October 19, 2006, answer Interrogatory 13 from the EEOC’s

Second Interrogatories and produce raw data for each program identified therein in

3

response to Request for Production No. 1 from Document Request Set 4;

2) The relevant time period for discovery purposes is January 1, 2000 to the present;

4

3) In the event the parties are unable to stipulate to a proposed confidentiality order, the

parties shall, not later than October 5, 2006, each file a proposed protective order

5

regarding confidentiality, from which the court will fashion the governing confidentiality

order;

6

4) Defendants shall pay the EEOC $2,280.00 as the reasonable attorney’s fees and costs

incurred in making the Motion to Compel (#28).

7

8 (Exh. 1 to Mot. (#136) at 6;Order (#88)).

9

In the Order (#88), the court found that, “In regard to remaining discovery requests, defendants

10 report that they have produced all documents responsive to the EEOC’s document requests, ‘to the

11 extent they exist.’” (Order (#88) at 3.) As noted in the Order (#88), courts cannot compel production

12 of documents that do not exist. (Id.) However, the court recognized that, “The EEOC proffered

13 sufficient information . . . to call into question the accuracy of defendants’ representation that certain

14 documents don’t exist.” (Id. at 3.) Accordingly, it permitted the EEOC to conduct discovery “into

15 whether defendants are adequately supplementing or otherwise responding to those requests to which

16 defendants have responded, ‘to the extent that responsive documents exist and are located during

17 discovery, they will be produced.’” (Id. at 3-4.)

18

ANALYSIS

19

Although defendants produced budget-related documents in May 2007 and June 2007, the EEOC

20 now contends that they should have been produced much earlier and that the “delay” in producing them

21 violated the dictates of the Order (#88), i.e., that “[t]he parties have a duty to provide true, explicit,

22 responsive, and complete and candid answers to discovery, and their attorneys have a continuing duty

23 to advise their clients of their duty to make honest, complete, non-evasive discovery disclosures.” (Exh.

24 1 to Mot. (#136) at 3;Order (#88) at 3 (quoting Wagner v. Dryvitt Sys., 208 F.R.D. 606, 609-10 (D. Neb.

25 2001)).) The EEOC also states that defendants delayed in producing other categories of documents

26 responsive to its Document Request Set 1 for months after the September 18, 2006 hearing. (Mot.

2

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 3 of 12

1 (#136) at 2.) It notes that defendants did not produce job position data until late January 2007, and

2 produced incomplete foremen bonus information in June 2007. (Id.) Lastly, the EEOC claims that

3 defendants failed to produce other requested documents in accordance with the Order (#88). (Id.)

4

Defendants respond that they complied with the Order (#88) and timely provided supplemental

5 production of discovery. (Opp’n (#142) at 2.) They also point out that since the Order (#88) was

6 entered, the EEOC has propounded additional discovery requests (Sixth, Seventh and Eighth Sets of

7 Requests for Production). (Id.) According to defendants, the materials requested in these most recent

8 requests are not relevant or their relevancy is outweighed by the burden of disclosure. (Id.) As to the

9 contempt request, defendants contend it is without merit because the budget documents which the

10 EEOC claims were so delayed are not responsive to the previous document requests that were the

11 subject of the Order (#88). (Id. at 2-3.)

12

The court has broad discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681,

13 685 (9th Cir. 1988). Relevance within the meaning of Fed. R. Civ. P. 26(b)(1) is considerably broader

14 than relevance for trial purposes. For discovery purposes, relevance means only that the materials

15 sought are reasonably calculated to lead to the discovery of admissible evidence. See Oppenhemier

16 Fund v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted); see also Fed. R. Civ. P. 26(b)(1).

17 However, a court may limit discovery if it determines, among other things, that the discovery is

18 unreasonably cumulative or duplicative, obtainable from another source that is more convenient, less

19 burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs its likely

20 benefit. Fed. R. Civ. P. 26(b)(2).

21 I. Document Request Nos. 74 and 75 of Set 1 and Document Request No. 20 of Set 3 (Budget-

22 Related Documents)

23

The EEOC first claims that defendants failed to supplement responses to Requests 74 and 75

24 of Set 1 as well as Request 20 of Set 3 for nine months after the Order (#88). As noted above, parties

25 have a continuing responsibility to provide responsive answers to discovery. Wagner, 208 F.R.D. at

26 609-10.

3

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 4 of 12

1

Requests 74 and 75 of Set 1, issued on January 21, 2005, sought evidence of “documents” and

2 “communications” regarding the “anticipated” financial gains and losses, respectively, from each of

3 defendants’decisions resulting in the terminations of eight class members and any other salaried

4 employees ages forty (40) and above. (Mot. (#136) at 3.) Request 20 of Set 3, issued January 27, 2006,

5 similarly asked defendants to identify all documents supporting defendants’ saved costs as a result of

6 consolidation of shifts from January 2000 through present. (Id. at 3;Reply (#143) at 1.) Although these

7 requests did not specifically provide that budget-related documents would be responsive, there is

8 evidence that defendants’ general managers deposed by the EEOC in early 2006 testified that such

9 documents would reflect cost savings or advantages of operational decisions resulting in various

10 terminations of the EEOC’s class members. (Exh. 3 to Mot. (#136) at 27:4-14.) Yet RSI and RSSD

11 responded that no responsive documentation existed or ever existed. (Mot. (#136) at 3.)

12

On September 18, 2006, during the hearing on the EEOC’s two motions to compel (##28,55),

13 counsel for the EEOC implied that budget documents would in fact be responsive to the requests. (Exh.

14 3 to Mot. (#136) at 27:4-14.) Almost four months later, on January 11 and 17, 2007, counsel for the

15 EEOC sent counsel for defendants letters asking for budget documents and indicated that they were

16 identified at the September 18, 2006 hearing. (Exh. 5 to Mot. (#136) at 11.) Counsel for defendants

17 responded that neither RSI nor RSSD retained copies of such documents. (Id. at 25.)

18

On April 19, 2007, the EEOC issued its sixth set of document requests, Request One of which

19 specifically asked defendants to produce budget documents exchanged between RSI and RSSD from

20 August 1997, when RSI purchased RSSD, through the present. (Mot. (#136) at 4.) RSI and RSSD

21 objected, stating that the requested time frame was too broad and the requested information irrelevant.

22 (Id.) RSI also stated that, to the extent the request sought current year (2007) budget data, such data was

23 proprietary in nature and therefore would not be released absent a protective order. (Id.) Despite

24 counsel for defendants’ earlier claim that no budget-related documents were retained by defendants,

25 defendants produced same documents on May 29, 2007 and, soon after a meet and confer letter was sent

26 by counsel to EEOC in early June, produced additional budget documents on June 11, 2007, i.e., the

4

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 5 of 12

1 discovery cut-off date. (Id.)

2

As the above suggests, defendants should have been aware that budget-related documents were

3 responsive to the Set 1 and Set 3 requests once the general managers deposed by the EEOC stated that

4 those documents would reflect cost savings resulting from the termination of EEOC class members.

5 (See Exh. 3 to Mot. (#136) at 27:4-14.) If this was insufficient notice, defendants were reminded of the

6 responsiveness of the budget-related documents during the September 18, 2006 hearing on the EEOC’s

7 two motions to compel (##28,55), and were again reminded in January 2007. (Id.) Therefore, although

8 defendants might not have retained budget-related documents and had to produce them from scratch,

9 it seems unlikely that this process would take a year-and-a-half (from the depositions), nine months

10 (from the September 2006 hearing), or even five months (from the January 2007 letters). This,

11 particularly when RSI and RSSD shared an accounting system (i.e., Larson) and RSI apparently had

12 accounting back-up data available to it. (9/18/06 Hearing Transcript at 25-7.)

13

As the budget documents were produced before the discovery cut-off date, however, the court

14 will not impose evidentiary and/or terminating sanctions on defendants. Instead, defendants will be

15 required to pay the reasonable expenses, including attorney’s fees and costs, caused by their failure to

16 comply with the Order (#88). See Fed. R. Civ. P. 37(b)(2). The EEOC will have ten (10) days from

17 the date of this order to file an affidavit of such fees and costs. The court will deny the EEOC’s

18 contempt request. The Order (#88), referred to in the request, did not specifically mention budget19 related documents.1

20 II. Document Request No. 2 of Set 6 (Three-Man Trucks)

21

The EEOC next argues that RSI improperly withheld responsive documents to Request 2 of Set

22 6, which asked defendants to produce all documents reflecting financial losses attributable to the use

23
1 The EEOC also claims that defendants abused the discovery process and violated the 24
court’s Order (#88) by refusing to provide current year (2007) budget-related documents. (Reply 25 (#143) at 5.) However, the Order (#88) stated that the relevant time period for discovery purposes
was “January 1, 2000 to the present.” Because the Order was issued on September 26, 2006, the 26 relevant time period for budget-related documents ended September 26, 2006.

5

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 6 of 12

1 of three-man trucks at RSI’s residential department from 1999 to present. (Mot. (#136) at 8-10.) It

2 claims that these documents are relevant to whether EEOC class member Jimmy Hilton (“Hilton”) was

3 fired because the routing department, in which Hilton worked, was responsible for the failure of the

4 three-man truck experiment. (Id. at 9.) Defendants respond that these documents are not relevant

5 because there is no evidence that Hilton had supervisory authority over, or had any input into, the

6 staffing of trucks for the residential department. (Opp’n (#142) at 9.)

7

Defendants are required to provide documents responsive to any request “unless it is clear that

8 the information sought can have no possible bearing on the subject of the subject matter of the action.”

9 Snowden v. Connaught, 137 F.R.D. 325, 329 (D. Kan. 1991); see also Jackson v. Montgomery Ward

10 & Co., 173 F.R.D. 524, 528 (D. Nev. 1997) (“Under the Federal Rules, the scope of discovery should

11 be allowed unless the information has no conceivable bearing on the case.”). Here, RSSD General

12 Manager Joe Knobluck (“Knobluck”) testified that another RSSD employee, Charles Holloway

13 (“Holloway”), was fired due to routing mistakes in the three-man truck experiment. (Exh. 9 to Mot.

14 (#136) at 203:11-13.) Knobluck said that defendants lost $1.5 million because of the routing

15 department run by Hilton and Holloway, and that Holloway was fired because of that loss. (Exh. 9 to

16 Mot. (#136) at 204:6-17.) This information is sufficient to demonstrate that the requested documents

17 may have some bearing on the case. While neither Knobluck nor Holloway testified that Hilton was

18 fired due to the routing mistakes, it follows from the above testimony that Hilton, like Holloway, may

19 have been fired because of them.

20

Defendants shall therefore provide documents from January 1, 1999 through December 31, 2006

21 (Holloway was fired in 2000, when residential trucks went back to two-man shifts (Exh. 10 to Mot.

22 (#136) at 45:12-16.), which reflect or refer to financial losses attributable to three-man trucks at RSI’s

23 residential department, even if they do not specifically mention the routing department.

24 III. Document Request No. 22 of Set 6 (Declining Balance Budget Sheets)

25

The EEOC claims that defendants improperly objected to its request for “declining balance

26 budget sheets” for each foreman at each of defendants’ facilities from August 1997 to present. (Mot.

6

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 7 of 12

1 (#136) at 11-12.) It contends that these documents are necessary to determine whether foremen were

2 terminated because of difficulty using company computer software. (Id. at 11.) Defendants aver that

3 this evidence is not relevant as foremen were not terminated for the reason cited by the EEOC. (Opp’n

4 (#142) at 10-11.)

5

Since there is no evidence defendants fired foremen due to their lack of computer skills,

6 compelling defendants to disclose copies of declining balance budget sheets in discovery is not justified

7 based on computer-related performance issues. However, to the extent that these forms contain other

8 performance information, which it appears they do, they may help explain why foremen class members

9 were fired. As such, defendants shall provide the requested information for January 1, 2000 through

10 December 31, 2006. See Snowden, 137 F.R.D. at 329 (“[U]nless it is clear that the information sought

11 can have no possible bearing on the subject of the subject matter of the action.”).

12 IV. Document Request No. 23 of Set 6 (Worker’s Compensation Administration)

13

In this request, the EEOC asked for all documents reflecting communications between

14 defendants and their third-party worker’s compensation administrator pertaining to Louis Buster

15 Thomas (“Thomas”), Michael Barnes (“Barnes”), and any other employee who defendants contend

16 stopped working for them after going through the worker’s compensation process. (Mot. (#136) at 12.)

17 The EEOC claims that defendants improperly objected to these requests, arguing that the documents

18 (1) were relied on by defendants’ deposition witnesses in preparing for their deposition testimony and

19 (2) may demonstrate that, even though some employees accepted training, the decision to fire them was

20 allegedly made beforehand, the training being forced upon them as opposed to a return to work. (Id. at

21 12-14;Exh. 11 to Mot. (#136) at 13:18-14:25.)

22

Defendants maintain that the requested documents are not relevant, are difficult to obtain and

23 are too broad in scope because no time frame was given by the EEOC. (Opp’n (#142) at 12-13.)

24 However, the relevant time frame determined by the court in its Order (#88) should guide defendants

25 in their response to this request. Furthermore, relevancy has been established. The EEOC provided

26 documentation that defendants’ worker’s compensation manager authorized the third-party

7

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 8 of 12

1 administrator to “get rid” of EEOC class member Barnes: “Jeff Romeo has given authority up too [sic]

2 $15k to get rid of this guy. Please do your best for the buyout. I want his file shut down.” (Exh. 4 to

3 Exh. 11 to Mot. (#136).) Lastly, defendants have shown that the requested communications are not

4 overly difficult to obtain. Defendants’ worker’s compensation manager, Romeo L. Vellutini III, was

5 able to obtain documents from the third-party administrator’s website within fifteen minutes of being

6 asked during deposition. (Exh. 3 to Reply (#143) at 13:18-14:20.)

7

Nevertheless, defendants have identified only seventy-five (75) employees (including Barnes

8 and Thomas) whose employment ended as a result of worker’s compensation injury/vocational

9 rehabilitation. (Opp’n (#143) at 13.) Accordingly, defendants shall provide the requested information

10 for those seventy-five (75) employees. See Fed. R. Civ. P. 26(b)(2)(B), ©) (a court may limit discovery

11 if it determines, among other things, that the discovery is unreasonably cumulative or duplicative,

12 obtainable from another source that is more convenient, less burdensome, or less expensive, or the

13 burden or expense of the proposed discovery outweighs its likely benefit).

14 V. Document Request No. 24 of Set 6 (Foremen Incentive Program)

15

The EEOC next argues that defendants violated discovery rules by failing to provide

16 documentation in response to a request for documents pertaining to the Foremen Incentive Program

17 from August 1997 through present. (Mot. (#136) at 14-16.) Defendants allege that RSSD “has

18 produced relevant documents” in response to this request and that the motion “does not identify a basis

19 for claiming that is [sic] has not received all relevant and existing documents.” (Opp’n (#142) at 14.)

20

The EEOC acknowledges that defendants have produced some of the requested documents,

21 namely those from years 2002 and 2005 in its May 30, 2007 amended response to the request, as well

22 as five more documents pertaining to 2004 as part of its June 11, 2007 supplemental response. (Mot.

23 (#136) at 15;Reply (#143) at 11.) However, as the EEOC points out, defendants offer no argument

24 regarding their failure to produce a complete set of documents for 2002 and 2004-2005, or any

25 documents for the years 2000-2001, 2003, or 2006. (Reply (#143) at 11.) Foremen Incentive Program

26 documentation is relevant insofar as it allows the EEOC to compare the performance of class members

8

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 9 of 12

1 with employees who were not terminated. Therefore, the court compels production of the requested

2 documents from January 1, 2000 through December 31, 2006.

3 VI. Document Request No. 1 of Set 7 (Attendance History)

4

The EEOC contends that defendants improperly objected to its request for the “attendance

5 history” of each mechanic who worked at the Henderson Transfer Station (“HTS”) for the period

6 January 1, 2000 to present. (Mot. (#136) at 16-18.) The request was made because class member Albert

7 Lee Vassar (“Vassar”) was terminated, in part, for accumulating overtime and claims that his supervisor

8 authorized younger employees to work more overtime than him or did not discipline younger employees

9 for working overtime. (Id.;Reply (#143) at 12;Exh. 4 to Opp’n (#142).) Defendants maintain that

10 attendance histories are not relevant because they do not indicate on their face whether overtime worked

11 by other HTS mechanics was “unnecessary” or was considered to be an example of “poor performance,”

12 as was indicated on Vassar’s termination letter. (Opp’n (#142) at 14-15,Exh. 4.)

13

All parties are entitled to reasonable access to “all evidence bearing on the controversy between

14 them, including that in the control of adverse parties.” Litton Sys., Inc. v. Am. Tel. & Tel. Co., 91 F.R.D.

15 574, 576 (S.D.N.Y. 1981). Here, the requested documents may demonstrate whether other mechanics

16 worked significantly more overtime hours than Vassar yet were not disciplined. A comparison of total

17 number of overtime hours worked would be significant because Vassar was fired partly due to an extra

18 half-hour of work on one occasion just prior to his termination. Accordingly, the court orders

19 defendants produce the requested documents from January 1, 2000 through December 31, 2006.

20 VII. Document Requests Nos. 2-8 of Set 8 (Personnel Files)

21

The EEOC issued its eighth set of requests by mail on May 8, 2007, making responses due on

22 June 11, 2007, the last day of discovery. (Reply (#143) at 15.) In these requests, it sought production

23 of personnel files for employees disciplined or fired for poor performance and for those who received

24 traffic tickets or were involved in traffic accidents while on duty. (Mot. (#136) at 18-23.) Defendants

25 object on grounds these requests would amount to well over 1,000 documents. (Opp’n (#142) at 15-22.)

26 However, the documents are relevant and federal courts have ordered similar-sized productions in other

9

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 10 of 12

1 cases. See, e.g., EEOC v. Citicorp Diners Club, 985 F.2d 1036, 1040 (10th Cir. 1993) (ordering the

2 production of employee information of about 1,100 people despite the potential need to look at

3 employee files, interview past or present employees and hire two employees for six months, because

4 the non-moving party failed to show that production would unduly disrupt and seriously hinder normal

5 operations of business and failed to provide the court with specific cost estimates). Therefore, the court

6 will order defendants to produce the requested documents from January 1, 2000 through December 31,

7 2006.

8 VIII. Interrogatory No. 7 (Relationship between RSI and RSSD)

9

Lastly, the EEOC claims that defendants’ responses to Interrogatory No. 7, which asked

10 defendants to describe in detail the degree to which RSI and RSSD have financial control over each

11 other, should be supplemented. (Mot. (#136) at 25.) Defendants argue that the responses were

12 adequate because the EEOC already had the opportunity in depositions to explore with RSSD’s former

13 President, Steve Kalish, and RSSD’s Controller, Robert Kneesel, the nature of the financial relationship

14 between the parties. (Opp’n (#142) at 22.)

15

Unless excused by court order, a requested party must provide relevant discovery regardless of

16 whether it is already available to the requesting party. See Fed. Deposit Ins. Corp. v. Renda, 126 F.R.D.

17 70, 72 (D. Kan. 1989) (defendant’s refusal to produce documents improper, as plaintiffs are entitled to

18 review those documents which are in defendant’s control regardless of whether plaintiffs are in

19 possession of certain documents which they requested from defendants); see also Westhemeco v. New

20 Hampshire Ins. Co., 82 F.R.D. 702, 710 (S.D.N.Y. 1979) (plaintiff’s possession of requested documents

21 does not preclude plaintiff’s request that defendant identifythem, absent a showing of bad faith or harassment).

22

In this case, although the EEOC has already deposed RSSD’s President and Controller,

23 defendants provided nearly identical and very limited responses to Interrogatory No. 7, only stating that

24 RSSD was a wholly-owned subsidiary of RSI and that the entities maintain separate payrolls, are

25 identified with discrete federal tax identification numbers and maintain separate bank accounts. (Mot.

26 (#136) at 25.) This minimal response does not provide sufficient detail regarding the degree to which

10

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 11 of 12

1 the parties overlap or otherwise exercise financial control over one another. The court therefore will

2 order defendants to supplement their answers to Interrogatory No. 7.

3

Accordingly, and for good cause shown,

4

IT IS ORDERED that Plaintiff’s Motion for Contempt and to Compel Responses to Discovery

5 and Request for Sanctions (#136) is GRANTED to the following extent:

6

1. Defendants shall pay the reasonable expenses, including attorney’s fees and costs, incurred

7 by the EEOC due to defendants’ failure to provide the EEOC with budget-related documents pursuant

8 to the Order (#88). The EEOC will have ten (10) days from the date of this order to file an affidavit of

9 fees and costs.

10

2. Defendants shall, not later than September 26, 2007, provide to the EEOC documents which

11 reflect or refer to financial losses attributable to three-man trucks at RSI’s residential department, for

12 the period January 1, 1999 through December 31, 2006.

13

3. Defendants shall, not later than September 26, 2007, provide to the EEOC “declining

14 balance budget sheets” for each foreman at each of defendants’ facilities, for the period January 1, 2000

15 through December 31, 2006.

16

4. Defendants shall, not later than September 26, 2007, provide to the EEOC all documents

17 reflecting communications between defendants and their third-party worker’s compensation

18 administrator pertaining to the seventy-five (75) employees (including Barnes and Thomas) whose

19 employment ended as a result of worker’s compensation injury/vocational rehabilitation.

20

5. Defendants shall, not later than September 26, 2007, provide to the EEOC all Foremen

21 Incentive Program documentation, for the period January 1, 2000 through December 31, 2006.

22

6. Defendants shall, not later than September 26, 2007, provide to the EEOC the “attendance

23 history” of each mechanic who worked at the Henderson Transfer Station (“HTS”), for the period

24 January 1, 2000 through December 31, 2006.

25

7. Defendants shall, not later than September 26, 2007, provide to the EEOC the personnel files

26 of employees disciplined or fired for poor performance and for those who received traffic tickets or were

11

Case 2:04-cv-01352-DAE-LRL Document 154 Filed 09/13/2007 Page 12 of 12

1 involved in traffic accidents while on duty, for the period January 31, 2000 through December 31, 2006.

2

8. Defendants shall supplement their answers to Interrogatory No. 7 not later than September

3 26, 2007.

4

IT IS FURTHER ORDERED that in all other respects the Motion (#136) is denied.

5

DATED this 13th day of September, 2007.

6

7

LAWRENCE R. LEAVITT

8

UNITED STATES MAGISTRATE JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12

 
 U.S. E.E.O.C. v. Republic Services, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 465446 Only the Westlaw citation is currently available.
United States District Court, D. Nevada.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
REPUBLIC SERVICES, INC., Republic Silver State Disposal, Inc., et al., Defendants.
Robert Larocca and William Lacy, Plaintiffs, v.
Republic Services, Republic Silver State Disposal, et al., Defendants.
No. 2:04-cv-01352-DAE-LRL. | Feb. 8, 2007.
Attorneys and Law Firms
Anna Park, Connie Liem, Sue J. Noh, U.S. Equal Employment Opportunity Commission, Legal Unit, Los Angeles, CA, Angela D. Morrison, United States Equal Employment Opportunity Commission, Las Vegas Local Office, Las Vegas, NV, for U.S. Equal Employment Opportunity Commission.
Scott B. Olifant, Law Office of Scott B. Olifant, Las Vegas, NV, for Robert Larocca and William Lacy.
Matthew G. Laflin, Bruce C. Young, Patrick H. Hicks, Roger L. Grandgenett, Matthew G. Laflin, Littler Mendelson, PC, Las Vegas, NV, for Republic Services, Inc. and Republic Silver State Disposal, Inc.
Opinion
ORDER
LAWRENCE R. LEAVITT, United States Magistrate Judge.
*1 Before the court is defendant Republic Silver State Disposal Inc.’s Motion to Compel (# 94), the EEOC’s Opposition (# 102), and Republic’s Reply (# 105). Republic requests this court to compel the EEOC to provide complete answers to defendant’s Request for Admission Nos. 1 and 2, and Interrogatory No. 21. The dispute revolves around a form letter and questionnaire (see Letter Mot. (# 94) at Ex. 1) the EEOC may have sent to putative class members or witnesses. The EEOC objects to the Motion, claiming the communications are protected by attorney-client privilege and the work-product doctrine. In its objections and

meet-and-confer letters the EEOC also asserted the deliberative process privilege, but now appears to have abandoned this objection.
I. Attorney-Client Privilege Republic argues that the EEOC’s objection to Request for Admission Nos. 1 and 2 and Interrogatory No. 21 on the basis of attorney-client privilege is not well taken. Republic claims that the correspondence at issue was addressed to potential class members or witnesses, not to any party currently represented by the EEOC. Therefore, it concludes, no attorney-client relationship exists between the EEOC and the possible recipients of the letter.
The EEOC contends that to admit or deny whether the Letter was sent (and if sent, to whom) would reveal the EEOC’s litigation strategy, the specific nature of the services the EEOC may provide, and putative class members motives for seeking representation. (Mot .(# 94) Ex. 7 at 2 (citing Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992)).) Further, the EEOC contends that courts have applied the attorney-client privilege to “[c]ommunications between prospective class members and EEOC counsel and their agents.” (Opp’n (# 102) at 4 (citing EEOC v. Int’l Profit Assocs. Inc., 206 F.R.D. 215, 219 (N.D.Ill.2002) (citing Bauman v. Jacobs Suchard, 136 F.R.D. 460, 462 (N.D.Ill.1990))).)
The purpose of the attorney-client privilege is to encourage candid communications between client and counsel. See Upjohn Co. v. United States, 449 U.S. 383, 390-91 (1981). Because the attorney-client privilege has the effect of withholding relevant information from the factfinder, “the attorney-client privilege is strictly construed and the party claiming the privilege bears the burden of establishing its claim.” Weil v. Investment/Indicators, Research & Mgmt. Inc., 647 F.2d 18, 24-25 (9th Cir.1981).
The EEOC cites Clark v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992), for the proposition that the communications at issue fall under the attorney-client privilege because they seek information relating to a “viable claim.” Thus, it argues, the potential class members’ motives could be revealed if the communications were disclosed. (See Opp’n (# 102) at 5.) The EEOC also relies on Clark to argue that the Letter is entitled to protection because it could reveal litigation strategy or the specific nature of the services provided.
*2 In Clark the court concluded that billing statements that contained general information on the identity of the client, the case name for which payment was made, the amount of the fee, and the general nature of the services
1

U.S. E.E.O.C. v. Republic Services, Inc., Not Reported in F.Supp.2d (2007)

performed were not privileged. 974 F .2d at 130. The Clark court came to this conclusion because there was nothing in the statements that revealed specific research or litigation strategy which would be entitled to protection from disclosure. Id. Such is the case here. There is nothing in the form Letter that reveals the EEOC’s litigation strategy or the specific nature of the services that may be provided; the Letter contains only general information regarding the nature of the suit. Additionally, as this Letter is from the EEOC to putative class members, the EEOC cannot establish that such communications would divulge the motives of potential class members in seeking representation.
The EEOC also contends that because the communications at issue here, like those in Bauman v. Jacobs Suchard, Inc., 136 F.R.D. 460, 462 (N.D.Ill.1990), concern letters the EEOC may have sent to current and former employees of Republic, this court should likewise find that the communications between EEOC counsel and potential claimants are privileged. The holding in Bauman, however, was conditioned on the fact that the primary purpose of the letter from the EEOC to potential claimants was to ask if they desired to be represented by the EEOC, and only the recipients who desired to be represented were asked to complete the questionnaire. In this case the Letter does not explicitly offer the EEOC’s services, it indicates only that it wishes determine if the recipient may be a witness or have a viable claim that could be pursued through this litigation. (See Letter Mot. (# 94) at Ex. 1.) Though the idea of representation may be implicit in the Letter, it is not its stated purpose.
Finally, when courts have found that an attorney-client relationship exists, the potential class members must have taken some affirmative step to enter into a relationship with the EEOC. “Courts have found such a relationship exists when an individual contacted the EEOC through questionnaires and phone calls, EEOC v. Int’ Profit Assocs., Inc., 206 F.R.D. 215 (N.D.Ill.2002), consulted with the EEOC with an intent to seek legal advice, EEOC v. Johnson & Higgins, Inc., 1998 U.S. Dist. LEXIS 17612, 1998 WL 778369, at *5-6 (S.D.N.Y. Nov. 6, 1998), or signed an affidavit stating a belief that an attorney-client relationship existed. EEOC v. Chemtech Int’l Corp., 1995 U.S. Dist. LEXIS 21877, 1995 WL 608333, at *2 (S.D.Tex. May 17, 1995); EEOC v. HBE Corp., 64 Fair Empl. Prac. Cas. (BNA) 1518 (E.D.Mo. May 19, 1994), rev’d in part on other grounds, 135 F.3d 543 (8th Cir.1998); EEOC v. Collegeville/Imagineering Ent., 2007 U.S. Dist. LEXIS 3764, 2007 WL 158735, at *2 (D.Ariz. January 17, 2007). On this record, the EEOC has not established that an attorney-client relationship exists such that the Letter they may have sent and, if sent, a list of its intended recipients, are protected.

II. Work Product *3 The EEOC contends that the work-product doctrine applies to the information sought by Republic’s Request for Admission Nos. 1 and 2 and Interrogatory No. 21. The EEOC contends that if it did send the Letter to potential claimants, it would not have been generated but for this litigation. Therefore, it argues, the material should be considered work product.
The work-product doctrine is a qualified immunity which protects from discovery documents and tangible things prepared by a party or that party’s representative in anticipation of litigation. Fed.R.Civ.P. 26(b)(3). “There are two types of work product: fact work product, written or oral information transmitted to the attorney and recorded as conveyed by the client; and opinion work product, any material reflecting the attorney’s mental impressions, opinions, conclusions, judgments, or legal theories.” Holliday v. Extex, 447 F.Supp.2d 1131, 1138 (D.Haw.2006) (citations and internal quotations omitted). The burden of establishing work product protection lies with the proponent, and “it must be specifically raised and demonstrated rather than asserted in a blanket fashion.” Yurick v. Liberty Mut. Ins. Co., 201 F.R.D. 465, 472, (D.Ariz.2001).
Key to this inquiry is that in order to be protected under the work-product doctrine the material must be a document or tangible thing. The admission or denial of the facts at issue in the Request for Admission Nos. 1 and 2 do not fall under the purview of fact work product or opinion work product. Likewise, a list of names of persons to whom the Letter may have been sent is not protected by this doctrine.
Moreover, although courts have extended work product status to EEOC questionnaire responses and interview notes, the names of those completing responses have not been protected. See, e.g., EEOC v. Pasta House Co., 70 Fair Empl Prac. Cas. (BNA) 61 (E.D.Mo.1996). The court there reasoned that protecting the questionnaires would protect the EEOC from revealing its work product, but give the defendants an opportunity to obtain information by sending out its own questionnaire. Id.
III. Sanctions Republic believes it should be awarded attorney’s fees pursuant to Fed.R.Civ.P. 37(a)(4). Republic contends it made a good faith effort to obtain the discovery without court action. The EEOC replies that sanctions are not warranted because it believes the requested discovery is improper and its nondisclosure was substantially justified.
A court must impost attorney’s fees when it compels discovery unless the opposing party was substantially justified in resisting discovery. Fed.R.Civ.P. 37(a)(4)(A).
2

U.S. E.E.O.C. v. Republic Services, Inc., Not Reported in F.Supp.2d (2007)

Substantially justified means that reasonable people could differ as to the appropriateness of the contested action. Pierce v. Underwood, 487 U.S. 552, 565 (1998).
The court finds that the EEOC was substantially justified in opposing discovery. However, the EEOC should have informed Republic that it was abandoning its objection based on the deliberative process privilege. Such a disclosure would have obviated the need for Republic to address the issue in its Motion.
*4 Accordingly, and for good cause shown,
IT IS ORDERED that defendant Republic Silver State Disposal, Inc.’s Motion to Compel Plaintiff Equal

Employment Opportunity Commission to Respond to Defendant’s First Set of Request for Admissions and Second Set of Interrogatories and Request for Sanctions (# 94) is GRANTED. The EEOC will answer Interrogatory No. 21and admit or deny the Request for Admission Nos. 1 and 2 by February 16, 2007.
IT IS FURTHER ORDERED that the EEOC shall pay Republic Silver State Disposal, Inc. the sum of $150.00 as the reasonable attorney’s fees incurred in bringing the applicable portion of the instant Motion.
	  

3

 
 Case 2:04-cv-01352-DAE-LRL Document 253 Filed 02/17/09 Page 1 of 120

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, )

ROBERT LaROCCA, and

)

WILLIAM LACY,

)

)

Plaintiffs,

)

)

vs.

)

)

REPUBLIC SERVICES, INC. and )

REPUBLIC SILVER STATE

)

DISPOSAL, INC.,

)

)

Defendants.

)

______________________________ )

ROBERT LaROCCA and

)

WILLIAM LACY,

)

)

Plaintiffs,

)

)

vs.

)

)

REPUBLIC SERVICES, a Delaware )

corporation, REPUBLIC SILVER )

STATE DISPOSAL, a Nevada

)

corporation, and DOES 1 through 25, )

)

Defendants.

)

_______________________________)

CV-S-04-1352 DAE(LRL)
CONSOLIDATED WITH CV-S-04-1479-DAE(LRL)

Case 2:04-cv-01352-DAE-LRL Document 253 Filed 02/17/09 Page 2 of 120
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. AND REPUBLIC SERVICES,
INC.’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES; ORDER DENYING DEFENDANTS’ MOTION TO STRIKE NEW PORTIONS OF PLAINTIFFS LACY’S AND LAROCCA’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND DECLARATION OF GERALD BENFORD On December 5, 2008, the Court heard Defendants’ Motion for Summary Judgment or Summary Adjudication of Issues. (Doc. # 208.) Scott B. Olifant, Esq., appeared at the hearing on behalf of Plaintiffs William Lacy and Robert LaRocca; Sue J. Noh, Senior Trial Attorney, appeared at the hearing on behalf of Plaintiff EEOC; Bruce C. Young, Esq., and Roger L. Grandgenett, Esq., appeared at the hearing on behalf of Defendants. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion for summary judgment. The Court GRANTS the summary judgment motion with respect to the disparate treatment claims of the following individuals: Randy Johnson; Daron Barnes-Reid; Eddie Wilson; Roderick Jones; Curtis Howard; Jesus Chanez; Lorrance Wilder, Jr.; Carlos Rasool as to the driver position; Albert Vassar; Dock
2

Case 2:04-cv-01352-DAE-LRL Document 253 Filed 02/17/09 Page 3 of 120
Hines; Jimmy Hilton; James Cornell; Timothy Gittus; Jon Krieger; Elmo Walker; Laura Lucido; William Adams; Louis “Buster” Thomas; and Michael Barnes.1
The Court DENIES the motion with respect to the disparate treatment claims of the following individuals: Jeffrey Banks; Ron Thompson, Sr.; Vincent Marrazzo; Manual Encinas; Carlos Rasool as to the mechanic position; Billy Taylor; David Suazo; Keith Brown; Mid Jackson; Nico Kelley; Eddie Williams; William Lacy; Robert LaRocca; Clayton Hickman; Kevin Stockton; Sharon Derengowski; Bernard Lucido; Michael Miller; and Jessie Williams.
This Court GRANTS the motion with respect to the EEOC’s pattern and practice claim.
Pursuant to Nevada Local Rule Part II, 78-2, the Court finds the motion to strike suitable for disposition without a hearing. After reviewing the motion, and the supporting and opposing memoranda, the Court DENIES Defendants’ Motion to Strike New Portions of Plaintiffs Lacy’s and LaRocca’s Opposition to Defendants’ Motion for Summary Judgment and Declaration of Gerald Benford. (Doc. # 225.)
1 This Court notes that EEOC has voluntarily dismissed claims brought by Debra Cote, Billy Bradley, Donald Whittle, and William Anstett. Accordingly, this Court GRANTS summary judgment in favor of Defendants with respect to those claims.
3

Case 2:04-cv-01352-DAE-LRL Document 253 Filed 02/17/09 Page 4 of 120
BACKGROUND The Equal Employment Opportunity Commission (“EEOC”) has brought suit pursuant to the Age Discrimination in Employment Act (“ADEA”) against Defendants Republic Services, Inc. (“RSI”) and Republic Silver State Disposal, Inc. (“RSSD”) (collectively “Defendants”) on behalf of a class of 36 individuals who were terminated from employment allegedly based on their age of 40 years or older. Plaintiffs Lacy and LaRocca have also brought ADEA claims. The EEOC’s case was consolidated with the lawsuit brought by the individual Plaintiffs William Lacy and Robert LaRocca. Defendants collect trash in the Las Vegas area. RSI is the parent company of RSSD. Defendants have various facilities in Nevada including: the Cheyenne Transfer Station; the Sloan Transfer Station; the Henderson Transfer Station; and the Las Vegas administrative office. The claimants fall into three groups: foremen, administrative support, and trash-collection. On July 18, 2008, Defendants filed the instant motion for summary judgment seeking dismissal of all claims by all individuals in both cases. (Doc. # 208.) Plaintiffs Lacy and Larocca filed an opposition on July 29, 2008. The EEOC filed an opposition on August 5, 2008. Defendants filed a reply to Lacy and
4

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Larocca’s opposition on August 12, 2008. Defendants filed a reply to the EEOC’s opposition to their summary judgment motion on September 4, 2008.
Defendants also filed on August 12, 2008, a Motion to Strike New Portions of Plaintiffs Lacy’s and LaRocca’s Opposition to Defendants’ Motion for Summary Judgment and Declaration of Gerald Benford. (Doc. # 225.) Plaintiffs Lacy and LaRocca filed an opposition on August 15, 2008. Defendants filed a reply on August 29, 2008.
On November 26, 2008, this Court granted Defendants’ Motion to Strike EEOC’s declaration of Marla Stern and portions of the EEOC’s opposition and exhibits relating to Marla Stern’s declaration and purported statistical analysis. (Doc. # 243.) This Court denied the EEOC’s motion for reconsideration of that order on February 13, 2009.
Because the factual background is lengthy, this Court will discuss the facts in the discussion section as they pertain to each particular claimant.
STANDARD OF REVIEW Rule 56 requires summary judgment to be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.
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Civ. P. 56(c); see also Porter v. Cal. Dep’t of Corrections, 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial -- usually, but not always, the defendant -- has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls upon the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323).
Once the moving party has carried its burden under Rule 56, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial” and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In setting forth “specific facts,” the nonmoving party may not meet its
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burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f) (“When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties.”). “[A]t least some ‘significant probative evidence’” must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu, 198 F.3d at 1134.
When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id. However, inferences may be drawn from underlying facts not in dispute, as well as from
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disputed facts that the judge is required to resolve in favor of the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631.
DISCUSSION The ADEA makes it unlawful “to discharge any individual . . . because of such individual's age.” 29 U.S.C. § 623(a)(1). Plaintiffs have brought claims against Defendants for age discrimination under both a theory that specific individuals were subjected to disparate treatment based upon their age, and a theory that Defendants engaged in a pattern and practice of intentional age discrimination. The EEOC argues that Defendants implemented a reduction-inforce in name only, but later advertised for the very jobs that they eliminated. The EEOC also asserts that it has direct evidence of age bias because Defendants’ top executives allegedly made age-biased comments in connection with the reductionin-force and fostered a corporate culture of open hostility to older workers. This Court will first address the disparate treatment cause of action as it pertains to each individual employee and then this Court will discuss the pattern and practice cause of action. The various individuals in this lawsuit worked in different positions, at different locations, and some were covered by a collective bargaining agreement, while others were not. This Court also notes that
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Defendants made a motion to strike Gerald Benford’s declaration used by Plaintiffs Lacy and LaRocca. (Doc. # 225.) That motion is discussed separately herein. I. Disparate Treatment Cause of Action
In order to establish a disparate treatment claim, the plaintiff must produce evidence that gives rise to an inference of unlawful discrimination, either through direct evidence of discriminatory intent or through the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003); Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
Direct evidence is “evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (internal quotation marks omitted) (alteration in original). In the context of an ADEA claim, direct evidence “is defined as evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (citation, internal quotation marks, and ellipses omitted). “When a plaintiff has established a
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prima facie inference of disparate treatment through direct or circumstantial evidence, he will necessarily have raised a genuine issue of material fact with respect to the legitimacy or bona fides of the employer's articulated reason for its employment decision[.]” Id. (citation and brackets omitted).
Where no direct evidence exists, the plaintiff must proceed under the McDonnell Douglas framework. Under that framework, the plaintiff must first establish a prima facie case of discrimination. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000). To prove a prima facie case of an ADEA violation, the plaintiff must show he or she was: “1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise ‘giving rise to an inference of age discrimination.’” Diaz, 521 F.3d at 1207 (citation omitted).
As noted by the Ninth Circuit in Diaz, [g]enerally, an employee can satisfy the last element of the prima facie case only by providing evidence that he or she was replaced by a substantially younger employee with equal or inferior qualifications. The test for the prima facie case changes somewhat, however, where a discharge occurs in the context of a general reduction in the employer's workforce. In this context, circumstantial evidence other than evidence concerning the identity of a replacement employee may also warrant an inference of
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discrimination. The reason for this difference is that in most reduction-in-force cases no replacements will have been hired. Id. at 1209 n3. The fourth prong may be met by “showing the employer had a continuing need for [the employees'] skills and services in that their various duties were still being performed . . . or by showing that others not in their protected class were treated more favorably.” Id. at 1207-08 (citations and internal quotation marks omitted). If the plaintiff meets the prima facie burden, he or she is entitled to a presumption of discrimination. Id. at 1207. “[T]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory, reason for the challenged action.” Chuang, 225 F.3d at 112324 (internal quotation marks and citation omitted). If the employer provides a legitimate non-discriminatory reason, the McDonnell Douglas presumption drops out of the picture. “The final stage of the McDonnell Douglas analysis requires [the plaintiff] to raise a genuine issue of fact concerning whether the facially legitimate reasons proffered by [the employer] are pretextual.” Diaz, 521 F.3d at 1212. Pretext can be established “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing
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that the employer's proffered explanation is unworthy of credence.” Chuang, 225 F.3d at 1123-24 (internal quotation marks and citation omitted).
“A showing that the [employer] treated similarly situated employees outside [the plaintiff’s] protected class more favorably would be probative of pretext.” Vasquez, 349 F.3d at 641. Individuals must be similarly situated “in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). “[I]ndividuals are similarly situated when they have similar jobs and display similar conduct.” Vasquez, 349 F.3d at 641. The misconduct engaged in by the employees must be “of comparable seriousness.” McDonnell Douglas, 411 U.S. at 804.
The “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir. 2002). “As a general matter, [however,] the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment.” Diaz, 521 F.3d at 1207 (citation and internal quotation marks omitted).
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A. Employees Allegedly Terminated for Attendance Issues The Collective Bargaining Agreement (“CBA”) between the
Employer and the Teamsters Union Local 631 covers certain former employees at issue in this suit. The attendance provision of the CBA provides that employees may be terminated if, beginning on June 11 of each year, they have more than ten unexcused absences in one year. In addition, an employee may be terminated where they have more than five no-call/no-show incidents in a six-month period. Finally, an employee may be terminated for three consecutive no-call/no shows.
A doctor’s note will allow multiple days off due to a medical reason to be counted as only one incident for purposes of the attendance policy. However, the first day of missed work, even if excused by a doctor, counts as an incident. If an employee returns to work after an excused illness and then goes out again with another doctor’s note, the subsequent absence will be counted as another incident day. (Defs.’ Ex. 42 at 12. )
With respect to the following individuals, the EEOC argues that the attendance policies were not consistently enforced between younger and older workers.
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1. Jeffrey Banks Jeffrey Banks, born 1962, was hired by Silver State Disposal. In June 2003, Banks worked as a Commercial Front-Loader Driver at the Cheyenne Transfer Station. The attendance records indicate that on February 26, March 7, May 13, June 7, and June 20, 2003, Banks either failed to call in to report an absence or was late to work. The attendance records also indicate that Banks failed to appear for work without providing notice on June 21, 2003. Defendants considered this failure to be Banks’s sixth no-call/no-show incident in a 180-day period. Defendants, therefore, terminated Banks in June 2003, pursuant to the CBA provision which states that employees may be terminated after six no-call/noshow incidents. Because the EEOC has not presented direct evidence of age bias with respect to Banks, the EEOC must proceed through the McDonnell Douglas framework by proving a prima facie case and presenting evidence of pretext. The EEOC argues that it can establish the second prong of Banks’ prima facie case because he had only three or four no-call/no-shows in the 180-day period, not six no-call/no-shows. First, the EEOC states that Banks returned to work on June 19, 2003, but was told by his supervisor Chris Hannah to get another note from his doctor since Banks was still injured. Banks believed that he was on medical leave
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on June 20, 2003, and that his supervisor Chris Hannah was aware of this. The EEOC, therefore, argues that the June 20 and June 21, 2003 absences should not have been counted as no-call/no-show incidents. In addition, on June 24, Banks provided a doctor’s note dated June 19, 2003, which covered his absences from June 19 to 24, 2003, and he also had a doctor’s note covering the period of June 12 through June 19, 2003. The EEOC argues that this entire period should be counted as one absence because the doctor’s note covers this period.
Banks did not report to work on June 26, 2003. Banks states that he was terminated on June 23 or 24, days before June 26, 2003. Defendants claim they accepted his late doctor’s note and voided the earlier termination and instructed Banks to show-up for work on June 26. When Banks did not call or show up for work on the June 26, 2003, his employment was terminated.
Banks argues that even if June 26 were counted as a no-call/no-show, it was not his sixth incident and could only be counted as his fifth incident because the June 20 and June 21 alleged no-call/no show incidents were voided by the provision of his doctor’s note.
Because some of the possible no-call/no-shows were excused, there is a question of fact as to whether Banks actually violated the attendance policy and/or whether it was reasonable for Defendants to believe he violated the policy.
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Taking the evidence in the light most favorable to the EEOC, it is sufficient to prove the second prong of the prima facie case that Banks was satisfactorily performing his duties.
The EEOC next argues that it can prove the fourth prong of its prima facie case and pretext because younger employees were retained despite violating the attendance policy. For example, Michael Jones, age 18 at the time, violated the attendance policy seven times during his four months of employment as a casual employee. In addition, casual employee Geraldine Lacy, born 1968, had eight nocall/no-show and tardies between April 11 and 19, 2003, but was not terminated until after the ninth incident. Donavin Morgan, age 22, had six no-call/no-shows in less than two months, yet continued to work for Defendants until August 2005, when he was terminated for insubordination.
Defendants counter that casual employees are not held to the same attendance standards as regular employees and that each of the younger comparators listed by the EEOC were casual employees, whereas Banks was a regular employee. In addition, there is no evidence that casual employees had the same supervisor as Banks. Thus, Defendants argue that the comparators are not similarly situated to Banks.
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Defendants further state that during a seven-year period, 32 regular employees at the Cheyenne Transfer Station were terminated for their sixth nocall/no-show attendance violation. Of those 32 employees, only seven were over the age of 40.
Defendants’ arguments are unpersuasive as a matter of law because although Defendants claim that casual employees are not subject to the same attendance standards as regular employees, Defendants also stated that they often hold casual employees to the same standard as regular employees. In addition, although only seven of 32 persons terminated were over 40, evidence was not presented as to how many persons over 40 were employed such that the court could make a percentage comparison. Therefore, given that there is a question of fact as to whether Banks actually violated the attendance policy and whether it was reasonable for Defendants to believe that the policy had been violated, taking the facts in the light most favorable to the EEOC as the non-moving party, there is a question of fact as to whether an inference of age discrimination has been raised. Although the EEOC’s evidence is not particularly strong, it is sufficient to raise a question of an inference of age discrimination. For these reasons, the motion with respect to Banks is DENIED.
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2. Ron Thompson, Sr. Ron Thompson, Sr., born 1964, was hired on June 20, 2002, as a casual pitcher at the Cheyenne Transfer Station Commercial Rear-Loader business line. Thompson became a regular employee on March 4, 2003, and states that he understood the proper procedure for reporting an anticipated absence. Thompson was listed as a no-call/no-show on February 3, March 28, April 2, April 9, and June 7, 2004. Thompson received an Employee Corrective Notice on June 8, 2004, which he signed, warning him that he had reached his fifth attendance violation in the past six months and that further violations would result in termination. On July 30, 2004, Thompson called in to notify his supervisor that he would be late for his shift. Defendants noted that his call was received at 8:01 p.m. Defendants terminated his employment for the sixth violation of the attendance policy, as set forth in the CBA. In his termination notice, Thompson stated that he called in at 7:58 p.m. and that he assumes that the discrepancy in time was because it took a few minutes for the tape to run out. The EEOC asserts that Thompson’s termination was pretext for age discrimination because younger employees with more attendance violations were not terminated. For example, the EEOC refers to the following three employees who were discussed with respect to Banks: casual employee Michael Jones, age 18
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at the time, violated the attendance policy seven times during his four months of employment as a casual employee, casual employee Geraldine Lacy, born 1968, had eight no-call/no-show and tardies between April 11 and 19, 2003, but was not terminated until after the ninth incident. Casual employee Donavin Morgan, age 22, had six no-call/no-shows in less than two months, yet continued to work for Defendants until August 2005, when he was terminated for insubordination. In addition to the employees set forth under Banks, Maurice Calcote, born 1969, was a no-call/no-show six times in a six-month period but was not terminated. Despite these excessive absences, Mr. Paul Labruzzo allowed him to voluntarily resign.
Defendants respond that regrettably, a mistake was made in counting the no-call/no-shows for Calcote. Defendants also state that Calcote was allowed to voluntarily resign because a resignation would allow him to more easily get another job after his incarceration. Defendants also counter that these four comparators are insufficient to create a genuine issue of fact, especially in light of the fact that the EEOC located only one clerical counting error out of the more than 900 employee files produced, and that of the 40 regular employees at the Cheyenne Transfer Station who were terminated for their sixth attendance violation, only ten were over the age of 40. This Court disagrees with Defendants.
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Although Thompson does not dispute that the call was not registered until 8:01 p.m. or that it was his sixth violation in six months, given that Defendants treated younger casual employees better by allowing them more violations of the attendance policy, and taking the evidence in the light most favorable to the EEOC, Thompson has provided enough evidence to show that he was satisfactorily performing his duties.
In addition, three of the comparators were casual employees as was Thompson. Given that Defendants should enforce the attendance provisions of the CBA evenly across transfer stations and given that there is no explanation as to why these three younger employees were allowed more violations, Thompson has created a genuine issue of fact regarding pretext. Although the EEOC’s evidence is weak, it is enough to survive summary judgment. Summary judgment is therefore DENIED with respect to Thompson’s claims.
3. Randy M. Johnson Randy Johnson, born 1954, was hired by RSSD on August 2, 2004, to work at the Henderson Transfer Station. It is disputed as to whether he was hired as a casual diver/pitcher or to work in the roll-off department. Johnson was required to report to work every morning to see what this specific job assignment
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would be. Johnson reported to work for seven or eight days, but was not selected to work. He, therefore, chose to stop coming to work.
Johnson states that he stopped reporting for work because he was the only trained roll-off driver among the casual employees waiting for work and he could no longer afford to go without pay. Johnson questioned why he had not been selected for work and was told that the person who was selecting employees was getting to it and did not forget him. Johnson, who was hired by the personnel office, asked his trainer “Sarge” why he was not being selected for work, and Sarge replied “the old guys ain’t got a chance” and that the new supervisor did not want anybody that old. (EEOC Ex. 28 at 74-75.) Johnson also testified that the person in charge of selecting causal employees for assignment to roll-off trucks never made any age-related comments to him, about him, or about any other employee. Likewise, the supervisor, Brown, never made any age-related comments to him. Johnson did not complain to human resources that he felt he was not being selected for work because of his age.
After not being selected for work for seven or eight days, Johnson decided not to report to work anymore. Defendants considered Johnson to be a nocall/no-show for three consecutive days of scheduled work on August 27, 30, and
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31, 2004. The line supervisor terminated Johnson pursuant to the attendance policy.
The EEOC points to the three comparators discussed above under Banks, (e.g. - Morgan, Lacy, and Jones) as younger employees who were not terminated although they violated the attendance policy. The EEOC also points to a younger employee, James Linton, who was a no-call/no-show for two months. The EEOC states that although Linton was incarcerated, it appeared that he had not requested a leave of absence until after he was a no-call/no-show for months.
Between January 2001 and May 2006, 41 casual pitcher/drivers at the Henderson Transfer Station were terminated for violating the three-day no-call/noshow attendance policy. Of those 41 employees, only ten were over the age of 40. In addition, Pablo Beauchamp, born 1951, was hired as a casual employee in June 2004. Beauchamp is older than Johnson and he remained employed by Defendants.
It is undisputed that Johnson decided not to report to work and was a no-call/no-show for three consecutive days. The only question is whether Johnson can prove a constructive discharge claim. This Court finds that Johnson does not meet that high standard.
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Where an employee quits or retires they must prove that they were constructively discharged. “Constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). To prove a constructive discharge claim, “a plaintiff must show there are triable issues of fact as to whether a reasonable person in his position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.” Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1184 (9th Cir. 2005), as amended by, 433 F.3d 672 (9th Cir. 2006); see also Watson v. Nationwide Ins., Co., 823 F.2d 360, 361 (9th Cir. 1987) (a plaintiff must show that their working environment was “so intolerable and discriminatory” that a reasonable employee would be compelled to quit). The plaintiff must show that “the abusive working environment became so intolerable that [his] resignation qualified as a fitting response.” Pennsylvania State Police v. Suders, 542 U.S. 129, 134 (2004).
The standard to prove a constructive discharge claim is higher than that required to prove a hostile work environment claim. Brooks, 229 F.3d at 930
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(“[w]here a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job.”). A plaintiff must at least show some aggravating factors that compelled him or her to quit, such as a continuous pattern of discriminatory treatment. Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1412 (9th Cir. 1996).
Here, the EEOC has not provided sufficient evidence to create a genuine issue of fact regarding constructive discharge for Johnson. One comment made by a trainer, and not being assigned to work for seven days is insufficient to create a factual issue of whether there was a pattern of discriminatory conduct or working conditions so intolerable based upon discrimination that a reasonable person would have quit.
Moreover, an inference of discrimination is not raised by the alleged comparator evidence because the three younger persons referred to by the EEOC worked at a different transfer station and were being dispatched by different supervisors. Even if they were to be compared with Johnson, the attendance record for one of the younger employees, Jones, shows that he reported but was not
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selected for work for ten days in a row, more days than Johnson. Finally, Linton was a no-call/no-show because he was incarcerated.
For these reasons, summary judgment is GRANTED in favor of Defendants on Johnson’s claim.
4. Daron Barnes-Reid Daron Barnes-Reid, born 1961, was 43 years old when he was hired by RSSD at the Cheyenne Transfer Station on September 13, 2004. He became a regular employee effective May 12, 2005. On October 17, 2005, Barnes-Reid received a corrective notice warning him that he had reached his limit of ten incidents of absences as set forth in the CBA for missing work on June 13 and 17, July 1, 15, and 19, August 4 and 12, September 11 and 19, and October 14, 2005. Barnes-Reid was terminated on October 30, 2005, for failing to report for work that day, which according to Defendants, resulted in eleven incidents of absences in one year.2 Barnes-Reid disputes that there were ten incidents of absences. Barnes-Reid states that he did not improperly miss work on the following five
2Barnes-Reid discussed his termination with the union and the union did not pursue any grievance through arbitration. Defendants argue therefore that they did not violate the attendance policy. It is unclear, however, as to why the union did not pursue the grievance.
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days, June 13 and 17, July 1, 15, and 19, 2005. Barnes-Reid has provided evidence that on each of those days he was manually clocked in. He argues that the reverseseniority system should apply to those dates. Foreman Freddie Stampley testified that manually-clocking in and be replaced was known as reverse-seniority and was allowed between 1995 and 2006 on days when the company had enough drivers and the most senior drivers either with the company or the union were allowed to go home without the day counting as an absence.
Barnes-Reid testified that the reverse-seniority system should apply to the five days in question because he had recently had a surgery and was on medication for the pain and Stampley was aware of that. Barnes-Reid testified that he told his union representative about that and his union representative stated that Stampley should have allowed the reverse-seniority system to apply to him given that he was sick.3
In addition to the dates above, Defendants state that Barnes-Reid was a no-call/no-show on the following five days: May 12, 30,and 31, and October 2, 24, and 28, 2005. Barnes-Reid disputes that he was a no-call/no-show on four of
3Defendants assert that the reverse-seniority system could not have applied to Barnes-Reid because he became a regular employee only on May 12, 2005, and he therefore would have been one of the least senior roll-off drivers. This argument however, does not address whether Barnes-Reid had seniority with the union.
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the days. Defendants’ attendance records show that Barnes-Reid was manually clocked in on May 30 and 31. Barnes-Reid states that he should have been replaced on these days under the reverse-seniority policy discussed above. In addition, Barnes-Reid had a doctor’s note for October 24th, and May 12 was his regularly scheduled day off. Thus, Barnes-Reid states that only two of the dates listed above should count as a no-call/no-show absence, not six.
Barnes-Reid testified that he believed older employees were assigned the outlying routes because those routes were less desirable and assignment of such routes was viewed as punishment.
Of the 21 regular employees at the Cheyenne Sation who were terminated for excessive absences, only seven were over 40 years old.
Defendants assert that Barnes-Reid cannot establish that the reverseseniority policy should have applied to him for the days in question. This Court agrees. All Barnes-Reid has shown was that there was a reverse-seniority practice in place and that the attendance records show that Barnes-Reid was manually clocked in. There is no evidence, even from Barnes-Reid himself, that BarnesReid showed up for work on the dates in question and asked that the reverseseniority system apply to him, that he was eligible for the system based upon seniority, or that anyone had told him that those days would not count against him
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because of the system. Moreover, Stampley had no recollection of Barnes-Reid requesting reverse seniority.
Finally, even if May 12 and October 24 did not count as absences based upon the regularly scheduled day off and the doctor’s note, Barnes-Reid still exceeded the allotted ten absences when he failed to report to work on October 30, 2005. Accordingly, the EEOC has not shown that Barnes-Reid was satisfactorily performing his duties or that the attendance policy was misapplied to him.
Moreover, even if one or two of the dates were mistakenly counted as absences and Barnes-Reid did not incur the maximum number of absences, the EEOC has not presented any evidence showing pretext. Barnes-Reid’s testimony pertaining to alleged age-bias relates to assigning allegedly undesirable routes to older employees. It did not pertain to the application of the attendance policy. Moreover, Barnes-Reid did not identify any specific younger comparators.
Accordingly, summary judgment is GRANTED in favor of Defendants with respect to Barnes-Reid’s claim.
5. Eddie Wilson Eddie Wilson, born 1951, was hired by Silver State Disposal in December 1996 as a casual pitcher. Wilson was 45 years old at the time. Wilson
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left after a few weeks and was re-hired in 1997 as a transfer truck driver. In June 2003, Wilson worked as a Roll-Off Driver at the Cheyenne Transfer Station.
On June 17, 2003, Wilson called into the hotline to report he would be out sick. Wilson spoke to his supervisor Gene Harris on June 18, 2003, and June 21, 2003, and informed him that he could not work due to illness. Wilson admittedly did not call in on June 19, 20, 22, 23, or 24. Wilson was terminated on June 23, 2003, for failing to call in or otherwise report to work for three consecutive days, as required by the CBA. A termination letter was mailed to him, but was returned undelivered. On June 25, 2003, Wilson submitted notes from his doctor for his absence. Wilson filed a grievance with his Union over his termination, but his Union did not pursue it because he did not have a case.
During the time frame in question, 42 union employees were terminated from the Cheyenne Transfer Station for the violating the three-day nocall/no-show attendance rule. Of those 42 persons, only nine were over the age of 40.
At sometime prior to his termination, foreman Harris allegedly made a few comments to Wilson, referring to Wilson as “old man.”
The EEOC argues that the above evidence proves pretext. This Court will first address the remarks of “old man.” In general, “‘stray’ remarks are
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insufficient to establish discrimination.” Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) (citations omitted). In Merrick, the Ninth Circuit held that a comment by the decision-maker that he chose a certain employee because he was a bright young man was insufficient to raise a triable issue of fact of whether the decision-maker refused to promote the plaintiff based upon the plaintiff’s age. It was held to be a stray remark that did not show that the decision not to promote was based on age. Id. at 14378-39; Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (supervisor’s use of the phrase we “don’t necessarily like grey hair” was uttered in an ambivalent manner and was not tied directly to the employee’s termination, thus, “it is at best weak circumstantial evidence of discriminatory animus”); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420-21 (9th Cir. 1990) (use of the phrase “old-boy network” did not support inference of discriminatory motive). Here, the use of the term “old man” a few times has not been connected to Wilson’s termination either in conduct or in closeness of time. They are therefore nothing more than stray remarks, which are insufficient to constitute direct evidence of age discrimination.
Therefore, the EEOC must prove a prima face case of discrimination through the burden shifting framework set forth in McDonnell Douglas. The EEOC cannot meet this burden. The EEOC argues that the termination reason was
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pretextual because Wilson called in and submitted a doctor’s note for the period from June 17, 2003 to August 7, 2003. In addition, the EEOC cites to one younger employee, Jacob Mines, who allegedly violated a different part of the attendance policy by having more than 12 absences in less than six months but was not fired. Even if this could establish pretext, however, which it does not, the EEOC has not provided sufficient evidence of a prima facie case of discrimination. The EEOC has not shown, as it argues, that Wilson did not violate the no-call/no-show rule. Even if a termination date of June 23rd was premature because Wilson called his supervisor on June 21, Wilson admitted that he did not call and did not show up for work on June 22, 23, or 24, 2003. Accordingly, Wilson violated the no-call/noshow rule on these three dates. Indeed, Wilson’s union did not believe that Defendants violated the CBA with respect to terminating his employment for violating the three consecutive day no-call/no-show rule. Therefore, the EEOC cannot establish that Wilson was satisfactorily performing his duties.
Accordingly, summary judgment is GRANTED in favor of Defendants on Eddie Wilson’s claim.
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6. Roderick Jones Roderick Jones, born April 18, 1959, was 44 years old4 when he was hired as a casual pitcher/driver by RSSD on December 24, 2003. Jones worked 5.5 hours on December 29, 2003. Jones testified that he was assigned to work with a younger man who asked him “you up for this old man?” The younger co-worker threw a trash can, which accidently hit Jones in the mouth. Jones went home early that day.5 Jones was not selected to work on December 30 and 31, 2003, January 1 and 2, 2004. Defendants attendance records show that Jones did not report for work or call in on January 3, 5, 6, and 7, 2004. Jones testified that he reported for work, but was not selected, for a period of three weeks. Jones testified that after these three weeks, he decided to stop reporting for work. Pursuant to the
4Although Jones was the same age when he was hired and terminated, he was hired and terminated by different people.
5The EEOC argues that the younger co-workers’ comment and accident might be a manifestation of the “break him off” technique where younger workers tried to mistreat older workers to make them quit, with the tacit understanding of the foreman. As acknowledged by the EEOC, however, this is only argument, not evidence. The EEOC has no evidence that this younger employee was trying to break off Jones, or that whoever was the supervisor had condoned that conduct.
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terms of the CBA, due to the failure to report to work for three consecutive days, Jones was terminated.6
Jones testified that while he and two other guys, whom he believed were his age, were sitting on a bench waiting for assignments, supervisors pointed to them and said that they were “out of their minds” if they believed they would be selected for work because the job would “f--- them up.” (EEOC Ex. 29 at 36-37.) Jones believed this statement was made because of his age. Jones also testified that people in their twenties were being selected for work.
Ten individuals were hired on the same day as Jones in the residential line of business at the Cheyenne Transfer Station, five of whom were over the age of 40. Of those five individuals, Jones was the only one who stopped reporting for work. The other four individuals remained employed by Defendants as of May 2006, two-and-a-half years later. In addition, the oldest person hired on the same day as Jones, Sherdell Mardis, was almost nine years older than Jones and remains employed by Defendants. Only the following two employees, who were hired on
6The EEOC asserts that although Defendants stated that Jones abandoned his job as of January 7, 2004, because one of Defendants’ exhibits possibly shows that Jones received a pay raise on June 12, 2005, there is a an issue of fact as to Jones’ termination date. This date discrepancy is irrelevant because Jones testified that he showed up for work for a period of three weeks before deciding to stop coming to work. Accordingly, at the latest, Jones was separated from employment in the last week of January 2004.
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the same date as Jones have been terminated: Javon Howard, born 1979, and Roger Hughes, born 1983. Hughes was the youngest person hired on the same date as Jones.
During 2003, 165 residential drivers were hired at the Cheyenne Transfer Station, 31 of whom were over the age of 40 and 134 of whom were under the age of 40. As of July 2006, 11 of the 31 employees over the age of 40 remained employed, representing 35.5%. Of the 134 employees who were under 40 when hired, 41 remained employed as of July 2006, representing 30.6%.
The EEOC argues that Jones was constructively discharged by Defendants’ refusal to select him for work. As discussed above with respect to Randy Johnson, a constructive discharge claim has a high standard. Jones cannot meet this standard. At most, Jones has presented evidence that he was not selected for work for a period of three weeks, and one comment was made from which he personally inferred age bias, and he witnessed younger employees being selected for work. This is insufficient to create a genuine issue of fact as to whether Jones’s employment was so discriminatory that a reasonable person would have quit. There is no showing of a continuous pattern of discriminatory treatment. Indeed, courts have found that work environments that were filled with many more instances of discriminatory conduct and more severe conduct were not sufficient to
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create hostile work environment that would cause a reasonable person to quit. See Morgan v. City and County of San Francisco, No. C-96-3573-VRW, 1998 WL 30013, at *8 (N.D. Cal. Jan. 13, 1998) (finding that being subjected to insensitive coworker remarks such as “You don’t fit in,” poor performance evaluations, inaccurate reporting of sick leave and having to tell the receptionist when she left her work station did not rise to the level of a hostile work environment. “Occasional hurtful remarks by a coworker or supervisor do not reach the appropriate level of severity.”); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (mere utterance of epithet which engenders offensive feelings would not affect conditions of employment to sufficiently significant degree necessary for violation of Title VII).
Moreover, although the statistics presented by Defendants as to the number of persons hired and their age may possibly be skewed or incomplete as they do not address how often employees were selected for work, the EEOC has not disputed the evidence presented. Instead, the EEOC only argues that it is irrelevant. This Court finds that the evidence is relevant because it demonstrated that older workers remained employed, from which one could infer that they were being selected for work. In addition, the EEOC has not presented any contrary evidence from which an inference of age discrimination could be made.
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For these reasons, summary judgment with respect to Jones’s claim is GRANTED.
7. Curtis Howard Curtis Howard, born 1961, was hired in June 2004 as a casual pitcher/driver at the Sloan Transfer Station. There is a dispute as to whether Howard was hired into the Roll-Off Driver department or as a pitcher in the Front Loader line of business. Attendance records indicate that Howard worked in the roll-off department at the higher driver pay rate for a few days in late June, and Howard testified that it was his understanding that he was hired as a driver. In addition, Howard possessed a Class A license, which is a higher class license than needed to drive most of the trucks. On June 28, 2004, Howard was assigned to work as a pitcher, which has a lower rate of pay by five dollars per hour. There is also a dispute as to whether Howard again worked as a driver on July 1 and 2, 2004. Defendants state that attendance records indicate he was paid the driver rate of pay for those days, but Howard testified that he did not drive and he only worked as a pitcher/ assistant. There is a dispute as to whether Howard worked on July 3 or whether he received an excused absence for that day. On July 6, 2004, Howard spoke with
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Hope Graham and Romeo Velluntini of Human Resources to complain about not being assigned to work as a driver, when he had moved from California for the position. Howard testified that he was told there was no work as a driver, and that he should continue to report to work as pitcher. Howard did not report back to work. Howard was terminated on July 7, 2004, for failing to call in or report back to work for three consecutive days.
Although Howard does not dispute that he did not return to work after July 3, 2004, he states he did not do so because there was no work in the driver position for which he was hired, and for which he moved from California to accept. Howard also states that he was not supposed to report to work on July 5, 2004, because in accordance with the CBA that was the day that the Fourth of July holiday was observed, since it fell on a Sunday. Therefore, Howard argues that it could not count as a no-call/no-show. Howard further testified that on his third day of work, the roll-off supervisor asked to see his driver’s license and then told him there was no work as a driver. The EEOC asserts that because the supervisor must have known there was no work as a driver, the only reason to check Howard’s license was to find out his age. Howard testified that despite what the supervisor said, he had seen postings for roll-off drivers and thus he believed there were driver positions needed.
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Howard testified that he was not subjected to any age-related comments, nor did he observe that he was treated differently than younger employees.
The EEOC argues that Howard was constructively discharged because he was told there were no driving positions and he was not given a chance to drive. The EEOC has not met its burden to create a genuine issue of fact regarding a constructive discharge claim. At most, Howard reported to work several times and worked and/or got paid as a pitcher, rather than a driver, and his supervisor viewed his licence, which contains his birthdate. These allegations are insufficient to show that Howard was subjected to a pattern of discriminatory conduct that would cause a reasonable person to quit.
For these reasons, summary judgment is GRANTED in favor of Defendants on Curtis Howard’s claim.
B. Employees Allegedly Terminated for Performance/Safety Issues 1. Vincent Marrazzo Vincent Marrazzo, born 1943, worked at the Cheyenne Transfer
Station as a pitcher/driver since approximately 1997. He was 53 years old at the time he was hired. Over the course of his employment, Marrazzo was written up for approximately 15 incidents of causing damage to property or failing to report
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damage. In 2003, Marrazzo was involved in an accident where his truck rolled over onto its side. Marrazzo was terminated based upon the seriousness of the rollover accident. Marrazzo filed a grievance with his Union, and after an arbitration, was returned to work in November 2004.
On April 21, 2005, Marrazzo was suspended from work because he was involved in an accident which damaged private property while backing up his truck. After an investigation, Marrazzo was prohibited from operating a truck for three months. He worked as a pitcher during that time and he accepted a Letter of Commitment. The Letter of Commitment stated that “I understand that if I do not correct my unsatisfactory performance problem, I will be terminated without further warning.” (Defs.’ Young Decl. Ex. 46 at Ex. 12.)
Not long after returning to work as a driver, Marrazzo was involved in another accident where he damaged a privately owned vehicle while backing up his truck. Marrazzo was terminated from employment based upon this most recent accident and based upon the Letter of Commitment. Marrazzo grieved his termination with his Union. An arbitrator upheld the termination.
The EEOC attempts to establish pretext by citing to the comparators for Manuel Encinas (discussed below), stating that younger drivers with worse accidents were retained. In addition, the EEOC refers to several other younger
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drivers who were involved in accidents, but were not terminated. For example, Adan Cano, 40 years younger than Marrazzo, was involved in eight accidents in 15 months of employment. In addition, Phillip Shamburger, who is 23 years younger, injured two different co-workers by backing into or running over them with his truck, but he was not fired until after he injured the second co-worker. Tutankhamun Johnson, who is 35 years younger, was involved in three accidents but received no more than a warning. Jesse Flanagan, born 1972, was involved in several accidents involving property damage, but was not terminated. Nolan Burke, born 1983, hit two privately owned vehicles (“POV”) in a seventh-month period, but was not terminated. Jahati Bell, who is about 34 years younger than Marrazzo, was involved in many accidents and was given a Letter of Commitment on August 2001. In October 2002, he backed into a POV. In May 2003, he received another Letter of Commitment because his truck rolled into another packed vehicle. He was promoted to a regular driver position to an AM lead man position. Yusuf Shahid, born 1969, was involved in numerous accidents, but was not terminated.
Defendants counter that none of these employees are proper comparators because they did not work as Commercial front loader drivers at the Henderson Transfer Station at the same time as Marrazzo and were not disciplined
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by the same supervisors. In addition, Defendants state that because the comparator drivers operate in different lines of business, such as residential and R/O, they have different types of accidents and property damage.
Defendants cite to four other employees, R. Wayne Haag, Zachary Marapo, Larry Catron, and Freddie Starkey, all of whom were over 40 years old and received discipline similar to Cano and Shamburger, and were not terminated.
Marrazzo testified that he believed he was terminated based upon his age because his direct supervisor Dennis Bennett said that Marrazzo was getting too old for the job more than once a week for a few months prior to his termination.
Given that Marrazzo’s direct supervisor told him that he was getting too old to do the job close in time to his termination and the comments related to his ability to do the job, the comments are sufficient to create a genuine issue of fact regarding pretext. For these reasons, summary judgment on Marrazzo’s claim is DENIED.
2. Jesus Chanez Jesus Chanez was born in 1958 and was 45 years old when he was hired as a casual employee on March 16, 2004. He later was assigned to work as a Roll-Off Driver out of the Cheyenne Transfer Station, where he was supervised by
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Eugene Harris, who is less than two years younger than Chanez. On April 25, 2004, Chanez received a Corrective Notice based upon backing up a truck into a gate at the Treasure Island Hotel and Casino, and the gate was damaged.
On May 25, 2004, Harris signed a performance evaluation for Chanez, stating that Chanez was not performing well and did not recommend him for continued employment. Defendants sent a letter to the Union informing it that Chanez, as a casual employee, was being sent back to the Union hall, effective May 21, 2004.
Chanez testified that Harris told him that he was taking too long to complete his routes. Chanez felt that it was age-related because he was safety conscious and therefore took longer, whereas the younger employees drove without taking all the necessary safety precautions. Chanez also testified that younger employees would get lost on their routes, and therefore become slow, but that Harris did not criticize those employees. The EEOC also refers to the fact that Harris made comments to claimant Eddie Wilson such as “let’s get to work, old man.”
Defendants assert that Chanez cannot prove his prima facie case since he cannot establish that he was satisfactorily performing his duties. This Court agrees. Indeed, Chanez acknowledged that he was taking too long to complete his
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routes. In addition, as set forth below the EEOC cannot prove an inference of discrimination or pretext because the younger comparators are not similarly situated to Chanez.
Specifically, the EEOC provided the following evidence of younger casual employees who were involved in multiple accidents or more severe accidents with damage and yet were not fired after only once incident: Jensen Calavan, born 1984, backed into a wall at a residence on May 18, 2006, while working as a casual employee. On July 23, 2006, Calavan was promoted to a regular employee. In October 2006, Calavan received a warning for failing to pull more than one load for the entire shift. In February 2007, Calavan failed to set his brake, causing damage to a parked car. In September 2007, Calavan received another written warning for failing to stop properly.
Lannie Bolden, born 1984, was hired as a casual in December 2005. Bolden damaged a customer’s roof on March 12, 3006. Bolden was written up for failing to strap down his roll-off container to his truck on April 20, 2006. Bolden did not strap down his roll-off container again on May 19, 2006. Bolden damaged a curb at the Paris Hotel on July 20, 2006. Bolden damaged company property on August 10, 2006. After these five incidents of damage, Bolden became a regular employee on August 18, 2006.
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Johnie Martin, Jr., born 1979, was hired in June 2005. While working as a casual employee, Martin damaged another vehicle while backing up his truck. Martin thereafter became a regular employee on February 27, 2006. On March 17, 2006, Martin received a Letter of Commitment. Martin damaged a customer’s gate on June 16, 2006. On December 5, 2006, Martin received a warning for receiving a speeding ticket. Martin received another warning on July 24, 2006 for failing to clean his truck.
Mark Nieto, born 1976, was hired in November 2005. He received a write up for running over carpet. On April 18, 2006, he damaged a parked vehicle. Nieto was promoted to regular employee status on July 21, 2006.
John Lee, III, born 1973, was hired on June 16, 2006. He damaged a gate while driving the truck on July 28, 2006. Lee cased damage to private property on August 3, 2006. On November 17, 2006, Lee failed to report damages to steps. Lee backed into a fence on January 18, 2007.
Marcus Whitfield, born 1964, was hired in May 2005. He damaged a chain link fence on November 2, 2005. On November 10, 2005, he refused to service a route that had been assigned to him and he was terminated.
Defendants assert that these employees are not appropriate comparators because they were all hired more than a year after Chanez was
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terminated, none of them worked as Roll-Off Drivers at the Cheyenne Transfer Station, and none of them were supervised by Harris.
Instead, Defendants point out that 87 casual employees who worked at the Cheyenne Transfer Station were terminated between January 2001 to May 2006 based upon performance issues not related to attendance, accidents or specific policy violations. Of those 87 employees, 36 were over the age of 40 and 51 were under the age of 40 at the time of termination.
The EEOC has not proven that these comparators are similarly situated to Chanez. The EEOC did not produce evidence establishing that other than being a driver, the comparators were similarly situated in all material aspects. For example, there is no evidence that the comparators worked in the same line of business as Chanez, drove the same type of vehicles or routes, were supervised by the same person, or that they worked as the same transfer station. There is nothing in the record indicating what type of license or training is needed to drive the various vehicles or what the job duties entail. Neither is there information comparing the types of vehicles.7 In addition, each of these comparators were hired more than one year after Chanez was terminated. Merely being a driver at
7This Court is not implying that all of these factors need to be present to find the employees similarly situated. This Court is merely noting that lack of evidence of being similarly situated.
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some point in time does not establish that these younger individuals were similarly situated to Chanez in all material respects. See EEOC v. Kohler Co., 335 F.3d 766, 776 (8th Cir. 2003) (“the individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances”); Visco v. Community Health Plan, 957 F. Supp. 381, 389 (N.D.N.Y. 1997) (“in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it”).
Finally, the one age-related comment is insufficient to create a genuine issue of fact with respect to pretext because it was made to another employee and was not tied in anyway to Chanez himself, his termination, or his ability to the job.
For these reasons, summary judgment is GRANTED with respect to Chanez’s claim.
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3. Lorrance Wilder, Jr. Lorrance Wilder, Jr., born 1957, was hired as a casual pitcher/driver at the Cheyenne Transfer Station in May 2005. Wilder was terminated in December 2005 for inadequate work performance and sent back to the union hall. Wilder was never subjected to any age-related comments. Of the 87 casual employees at the Cheyenne Transfer Station that were terminated between January 2001 and May 2006 for performance issues unrelated to attendance, accidents, or specific policy violations, 36 were over 40 years old, and 51 were under 40 years of age at the time of termination. The EEOC argues that because no one could recall the specific performance problem that Wilder had, the reason for his termination was pretext for age discrimination. In addition, Wilder believes he was discriminated against based upon his age because he noticed that younger casual employees with less seniority would be assigned work but that he was not assigned work and was sent home. The EEOC’s argument shifts the burden of its prima facie case to Defendants. The EEOC has to prove that Wilder was adequately performing his duties. The EEOC has not done so. Accordingly, the EEOC has not met its prima facie burden that Wilder was adequately performing his duties.
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Moreover, Wilder was hired and fired within seven months of time. Although there is no evidence as to whether the same person hired and fired Wilder, the fact that Wilder was the same age at his hiring as he was at firing counsels against an inference of age discrimination, especially where there is no evidence of a pattern of firing older workers after they were hired by the human resources office. See Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (“an employer's initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs”); Diaz, 521 F.3d at 1209 (if the employer was “biased against older workers, it presumably would not have hired Plaintiffs in the first place. The temporal proximity between each Plaintiff's hiring and layoff also makes it unlikely that age later developed as the reason for the discharges”). In addition, the EEOC has not presented evidence that Wilder was replaced by a younger employee or presented other evidence that could raise an inference of age discrimination.
For these reasons summary judgment is GRANTED in favor of Defendants on Wilder’s claims.
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4. Manuel Encinas Manuel Encinas, born in 1958, was hired on December 17, 2001, and became a regular employee effective August 17, 2002. Encinas worked as a residential driver at the Henderson Transfer Station. On December 31, 2003, Encinas was issued a warning for causing damage to the transmission of a truck. On January 7, 2004, Encinas was involved in an accident while driving on the wrong side of the road in which the driver of the other vehicle was injured and the vehicle was damaged. Encinas received a citation from the police for driving on the wrong side of the road. Defendants conducted an investigation and determined that the accident could have been prevented. Encinas reported that the driver of the other car failed to stop at a stop sign and hit the back of his truck. Encinas was terminated from employment based upon his involvement in the accident. Encinas filed a grievance with his union. An arbitrator found that the termination did not violate the CBA. Encinas admits that none of his supervisors ever made age-related comments. Between January 2001 and May 2006 only 21 drivers who worked at the Henderson Transfer Station were terminated for being involved in accidents or
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causing damage to property. Ten employees of the 21 terminated were over the age of 40 at the time of termination and 11 employees were under the age of 40.
The EEOC claims that younger drivers who were involved in worse accidents were not fired. Specifically, the EEOC refers to Cano and Shamburger, discussed above. Shamburger, who is eight years younger than Encinas, was involved in four accidents, including one involving personal injury to a pitcher. Cano is approximately 24 years younger than Encinas. He was involved in nine accidents in two years, including one where the police found him at fault. Despite three accidents, Cano became a regular employee on October 21, 2005. In addition, Marvin Penniston-John, born 1969 and ten years younger than Encinas, hit another car twice. Then in May 2002, Penniston-John damaged the rear tire of his truck and received a written warning. He damaged a sidewalk, and axel and a right tire on May 6, 2002. On January 28, 2003, he backed into another truck. Penniston-John rear-ended another vehicle and received a Letter of Commitment. On January 1, 2004, Penniston-John caused the drive line to be damaged, and on August 25, 2005, he hit a parked car.
Odell Henry, born 1975 and 17 years younger than Encinas, received a Letter of Commitment for rear-ending another vehicle in 2006. Courtney Hunt,
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born 1974, also received a Letter of Commitment. He was also involved in an accident with another car, but did not get terminated.
Defendants ague that Encinas cannot establish that he satisfactorily performed his job duties, and that there is no evidence of pretext. Defendants assert that these younger drivers are not similarly situated to Encinas. Specifically, Shamburger and Cano were commercial front loader drivers at the Sloan Transfer Station and supervised by Mark Howski. Hunt and Henry were roll-off drivers at the Cheyenne Transfer Station.
Only Penniston-John was a residential driver at the Henderson Transfer Station. Defendants argue that Encinas’s accident was more severe because he was ticketed for backing up on the wrong side of a residential street, which is illegal and resulted in a collision with a private vehicle and injured a person. Defendants further contend that the EEOC cannot establish pretext because none of Encinas’s supervisors made age-related comments.
This Court finds that Penniston-John is an appropriate comparator. Although none of his accidents involved illegal conduct, he had numerous accidents involving property damage. This is sufficient to create a genuine issue of fact of whether Encinas was satisfactorily performing his duties and whether similarly situated younger employees were treated more favorably.
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Therefore, Defendants’ motion is DENIED with respect to Encinas’s claim.
5. Carlos Rasool Carlos Rasool, born 1939, applied for a mechanic position in 2004. During his interview, the senior foreman stated to him “you’re retired, weren’t you 65.” (EEOC Ex. 46.) Defendants did not directly address Rasool’s claim based upon his interview for the mechanic position in their briefs. Carlos Rasool was later hired, on March 8, 2004, as a driver. He was terminated on April 9, 2004, because he allegedly failed the driving test by getting lost and because he lacked proficiency in shifting gears. Rasool acknowledges that he had trouble shifting gears, but claims he eventually got used to the truck, and he was told that someone would call him. One other employee, Elmer Cruz, born 1968, was terminated for failing to pass the driving test. Cruz was 36 years old at the time. The EEOC attempts to prove discrimination based upon evidence that Tony Struck, born 1960, may have failed his driving test, but was hired anyway. Taking the evidence in the light most favorable to the EEOC there is a genuine issue of fact regarding the basis for the non-hire decision with respect to the mechanic position. However, the EEOC has not presented enough evidence to
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create a genuine issue of fact regarding the basis for termination from the driver position. There is no showing that the person who evaluated Rasool’s driving techniques made an inaccurate assessment or had any age bias. Moreover, there is no evidence that Rasool satisfactorily performed his job or evidence of pretext. For these reasons, Defendants’ motion is DENIED with respect to the mechanic position and GRANTED with respect to the driver position.
6. Billy Taylor Billy Taylor, born 1948, initially interviewed for a job at the Henderson Transfer Station. During that interview, the interviewer said “I’m in my 50's. I don’t know if I could go out there and handle this job like that.” (EEOC Ex. 52.) Taylor responded that he was accustomed to working in the heat. Taylor was not hired for that position. Taylor then interviewed for a job at the Sloan Transfer Station. He was 53 years old at the time. In that interview, Operations Manager Danny Ficklin allegedly stated that Taylor was “kind of old” and “up in age” and asked him if he could handle this type of job. In June 2002, Ficklin hired Taylor as a casual pitcher/driver at the Sloan Transfer Station on a trial basis. Mr. Taylor first worked as a casual pitcher in the residential department, and then transferred to the commercial front loader
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department on July 16, 2002. Taylor’s supervisor noted in his reviews that Taylor’s work performance and job knowledge improved. Ficklin completed the last performance review, dated December 13, 2002, and recommended Taylor for continued employment.
On January 2, 2003, Ficklin terminated Taylor because he allegedly failed to meet performance standards during his probationary period, which was over the past seven months. Ficklin stated that Taylor was unable to service an entire commercial route successfully, e.g. complete the usual number of loads in a given time frame, despite having been trained and given opportunities to do so. The EEOC presented evidence that Taylor had only been allowed to work as a driver on the commercial routes on four occasions.
Although Ficklin was the person who both hired and fired Taylor within a seven-month period, taking the evidence in the light most favorable to the EEOC, given the age related comments made by Ficklin, the plan to use Taylor on a trial basis, and the fact that he seemed to be performing well prior to his termination, the EEOC has presented enough evidence to create a genuine issue of material fact of whether Taylor was terminated based upon his age. Accordingly, Defendants’ motion is DENIED with respect to Taylor’s claim.
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7. Albert Lee Vassar Albert Vassar, born 1951, was hired as a mechanic by Silver State Disposal on December 5, 1986. Vassar began working at the Henderson Transfer Station when the facility opened in 2000. On September 3, 2003, Vassar received a Letter of Commitment noting that he had failed to follow several safety rules and company procedures. The Letter of Commitment gave Vassar a choice to sign the letter or be terminated immediately. Vassar signed the discipline, but did so under protest because there was no union counsel present, and although he admitted to being late in putting on wheel chocks, he disputed that he failed to follow each rule Defendants claimed he violated. Vassar received a verbal warning on September 30, 2003, for poor workmanship. Vassar signed the verbal warning under protest because he did not have a union representative present. Vassar received a written warning on November 26, 2003, for poor work performance for allegedly failing to properly diagnose and complete an assignment and working unnecessary overtime to do so on March 1, 2004. Vassar contests the poor work performance written warning stating that he had failed to note in his work log that he repaired a light in addition to repairing the brakes and that is why it took him more time to complete the job.
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Vassar was terminated from employment the next day. Vassar and his union filed a grievance over his termination and the arbitrator upheld the termination. Vassar recalls that manager Joe Knoblock made a statement that Vassar attributed to age bias. Vassar cannot remember the words Knoblock used.
The EEOC has failed to prove its prima facie case with respect to Vassar. First, the EEOC has not established that Vassar was performing his job in a satisfactory manner. Although the EEOC contests the issuance of the disciplinary actions, some of those objections were based merely on the fact that Vassar did not have union counsel present at the time of the discipline. The objections are not based upon whether or not Vassar actually violated the rule at issue. Moreover, although he had possibly reasonable explanations for his poor work performance, Vassar admitted to making mistakes. Finally, an arbitrator upheld Vassar’s termination, thereby finding that the disciplinary actions taken against Vassar comported with the requirements of CBA and that Vassar was terminated for just cause. The EEOC has alleged only that the arbitrator may not have been neutral. Even if true, however, this cannot establish that Vassar was satisfactorily performing his duties, or that the arbitrator was somehow complicit in the alleged age bias.
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Second, the EEOC has not presented evidence that Vassar was replaced by a younger employee. The EEOC cites only to the hiring of a younger mechanic September 2005, and another younger mechanic on October 27, 2005. These two mechanics were hired over a year and a half after Vassar was terminated. A year-and-a-half time lapse does not establish that Vassar was replaced by a younger employee.
For these reasons, summary judgment is GRANTED in favor of Defendants with respect to Vassar’s claims.
8. David Suazo David Suazo, born 1954, was hired as a driver on April 7, 2003, to work at the Sloan Transfer Station. He was 49 years old at the time. Soon thereafter, Suazo was involved in two accidents resulting in damage to company property while driving a Roll-Off Truck. Suazo admitted that the first accident on June 6, 2003, was caused by his own negligence in failing to set the parking brake. The second accident occurred on June 9, 2003, when the truck flipped over while Suazo was making a left turn. The traffic accident report indicated that excessive speed, blown right front tire, and possible load shift were contributing factors. RSSD safety department investigated the accident and determined that Suazo made
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an improper left turn causing the truck to roll over, doing major damage to the truck. Suazo was terminated.
Defendants counter that of the 24 casual driver/pitchers at the Sloan Transfer Station that were terminated for accidents causing damage, only seven were over the age of 40 and 17 were under 40 years of age.
The EEOC asserts that Defendants discriminated against Suazo based upon his age because other younger drivers were not fired despite the fact that they caused more damage than Suazo, and by denying Suazo light duty after the accident but offering it to younger employees. The EEOC refers to employee Jensen Calavan, born 1984, who was involved in an accident where he failed to set a brake and damaged a parked car when the truck rolled as an appropriate comparator. As argued by Defendants, however, Calavan is not a valid comparator because this accident is more akin to Suazo’s first accident where he failed to set a parking brake and the truck rolled into a pole. Calavan was not involved in a moving violation accident where a truck rolled over onto its side. Thus, Calavan’s misconduct was not of the same level of seriousness.
The EEOC also points to the comparators listed under Jesus Chanez. Defendants do not directly address these comparators under Suazo. However, based on Defendants’ response under Chanez, each of the following employees
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worked as a Roll-Off driver at the Sloan Transfer Station. The comparators are as follows:
Lannie Bolden, born 1984, was hired as a casual in December 2005. Bolden damaged a customer’s roof on March 12, 3006. Bolden was written up for failing to strap down his roll-off container to his truck on April 20, 2006. Bolden did not strap down his roll-off container again on May 19, 2006. Bolden damaged a curb at the Paris Hotel on July 20, 2006. Bolden damaged company property on August 10, 2006. After five incidents of damage, Bolden became a regular employee on August 18, 2006.
Johnie Martin, Jr., born 1979, was hired in June 2005. While working as a casual employee, Martin damaged another vehicle while backing up his truck. Martin thereafter became a regular employee on February 27, 2006. On March 17, 2006, Martin received a Letter of Commitment. Martin damaged a customer’s gate on June 16, 2006. On December 5, 2006, Martin received a warning for receiving a speeding ticket. Martin received another warning on July 24, 2006 for failing to clean his truck.
Mark Nieto, born 1976, was hired in November 2005. He received a write up for running over carpet. On April 18, 2006, he damaged a parked vehicle. Nieto was promoted to regular employee status on July 21, 2006.
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John Lee, III, born 1973, was hired on June 16, 2006. He damaged a gate while driving the truck on July 28, 2006. Lee caused damage to private property on August 3, 2006. On November 17, 2006, Lee failed to report damages to steps. Lee backed into a fence on January 18, 2007.
Marcus Whitfield, born 1964, was hired in May 2005. He damaged a chain link fence on November 2, 2005. On November 10, 2005, he refused to service a route that had been assigned to him and he was terminated.
Although all of these employees were hired after Suazo was terminated, they were all Roll-Off drivers at the Sloan Transfer Station. In addition, although some of the above comparators were not involved in as serious an accident as Suazo, Bolden and Martin were involved in several accidents and yet were not terminated. Although not particularly strong evidence, this is sufficient to create a genuine issue of fact regarding pretext.
With respect to the offer of light duty, the EEOC has not presented credible evidence that younger employees involved in similarly severe accidents were offered light duty.
For these reasons, Defendants’ motion with respect to Suazo’s claim is DENIED.
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9. Keith Brown Keith Brown, born in 1961, was 41 years old when he was hired for the recycling line of business as a Hotel Sorter at one of the hotel/casinos on February 6, 2003. Because Brown was a new employee, he could be terminated for one incident of a no-call/no-show absence. Defendants state that Brown was a no-call/no-show on March 9, 2003, and therefore, was terminated on March 10, 2003. Brown states that he reported to work on March 9, 2003, but was sent home and was told that he was no longer needed by his supervisor, John Moore. Brown also testified that John Moore used the term “OG,” which Brown understood to mean Old Dude, in addition to meaning Original Gangster. Brown further testified that John Moore made a comment once about Brown moving slowly, and that he should use Ben-Gay for his hand. Brown testified that a supervisor named Nell said “they should have somebody younger. The older dudes move too damn slow.” (EEOC Ex. 10 at 35.) Defendants argue that “OG” is not correlated to age. This Court disagrees. There is a question of fact as to what “OG” means. The term “original” means belonging or pertaining to the origin or beginning of something. Thus, it is possible that it could be used in street slang to mean the oldest. In addition,
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www.urbandictionary.com defines “OG” as “someone who has been around, old school gangster.” See http:// www. urban dictionary. com/define.php?term=og.
Defendants next argue that even if Moore’s comments directly referenced age, they are nothing more than stray remarks. This Court disagrees. The EEOC has presented enough evidence to prove a prima facie case that Brown was satisfactorily performing his duties. Taking the facts in the light most favorable to the EEOC, it has also presented enough evidence to create a genuine issue of fact as to whether Brown was terminated for legitimate reasons or as a pretext for age discrimination. Thus, Defendants’ motion is DENIED.
10. Dock Willie Hines Dock Hines, born 1943, was hired in 1979. In 2003, Hines was employed as a Supervisor over the Sludge drivers at the Apex facility. Hines was terminated by Alan Gaddy, General Manger of the Apex facility, on August 15, 2003. Defendants state that Hines was terminated for performance reasons because he allowed Sludge drivers to stop working and go home after completing only three or four loads, instead of requiring them to work their entire ten-hour shift. In addition, Defendants believed that Hines was not properly monitoring the drivers and he allowed them to report non-existent problems with their trucks as
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excuses for not making additional loads. The work logs for the last week of July and the first two weeks in August 2003 show that not one driver completed more than four loads in a ten-hour shift.
The EEOC asserts that this reason is pretext because Hines, who was 60 years old at the time he was terminated, was replaced by younger persons who were already employed, Dave Fink, age 46, and Tom Gardner, age 39, and those younger persons did not perform better than Hines. For example, although Fink testified that drivers usually pulled five loads in one shift, the logs for September 2003, the month after Hines’ termination, show that drivers continued to pull an average of only 4.07 loads per shift. Specifically, the logs show that only 36% of employees pulled more than four loads during their shift, whereas 64% pulled fewer than five loads. In addition, Fink testified that drivers worked overtime fairly frequently.
Hines testified that he was not subjected to age-related comments by Gaddy or any other employee. Hines testified that the only reason he believed he was discriminated against based upon his age was because his duties were temporarily assumed by Dave Fink and Tom Gardner, younger employees.
Defendants counter that in March 2005, Ben Canto was promoted to the sludge supervisor position, and he was 53 years old at the time.
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Defendants argue that the EEOC cannot prove its prima facie case with respect to Hines. This Court agrees. The EEOC has not established that Hines was satisfactorily performing his job. First, the logs clearly show that there was a significant increase in the number of drivers pulling more than four loads. Specifically, for the three weeks prior to Hines’ termination, not one driver pulled more than four loads. However, in the month following Hines’ termination, 36% of the drivers pulled more than four loads. Second, it is undisputed that Hines let drivers leave prior to the end of their shift and allowed them to report non-existent problems with their vehicles.
Moreover, even if the EEOC could establish a prima facie case, there is no evidence of pretext.
For these reasons, summary judgment is GRANTED with respect Hines’s claim.
11. Mid Jackson Mid Jackson, born 1943, was hired in 1977 and became a regular employee in 1980. Jackson worked as a Residential Route Supervisor at the Sloan Transfer Station when that station was opened in approximately 2000. Bruce San Fillipo, Sloan General Manager born 1951, testified that Jackson would allow drivers that finished their routes before the end of their shift
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to meet in a central place and hide out, rather than assigning them to help a driver that was going to incur overtime. San Fillipo stated that he told Jackson several times to stop that practice, but that Jackson ignored his direct order. San Fillipo, therefore, decided to terminate Jackson’s employment allegedly based upon his inability to conform to San Fillipo’s directions. Jackson was terminated on February 14, 2003, and he was provided with six-months severance pay. He was 59 years old at the time.
Jackson testified that he was not written up or given verbal reprimands for job performance problems. The last written reprimand in his personnel file was dated 1998. In addition, the EEOC presented evidence showing that prior to San Fillipo’s deposition, Defendants listed the reason for Jackson’s termination as a reduction in staff. Gerald Benford testified that Jackson was a very tough supervisor, and that San Fillipo had told him that he had been trying to work with Jackson to smooth out his rough edges.
Jackson testified that he does not recall San Fillipo making comments that he believed were derogatory based on his age. However, when he was terminated, San Fillipo allegedly told Jackson that the company wanted “to go in another direction” and that Jackson did not fit in. (EEOC Ex. 26 at 39.) Jackson was replaced by Donny Redmond, born 1971, age 32 at the time.
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Defendants argue that the EEOC has not established that Jackson was satisfactorily performing his job duties. Given the direct contradictory evidence produced by the EEOC which this Court must assume is the truth, and construing the evidence in the light most favorable to the EEOC, this Court finds that the EEOC has presented enough evidence to establish its prima facie case that Jackson was satisfactorily performing his job because Jackson denies being given verbal warnings and there is no evidence of the warnings other than the contradictory testimony of San Fillipo, which was given much later in time.
The EEOC first attempts to establish pretext by arguing that Jackson was adequately performing his job and did not allow drivers to hide out. For example, they discuss the number of trucks he was supervising, that there was no “sit-down” regarding exceeding budgeted overtime, that some drivers did not radio in when they finished their routes, that Jackson took measures to reduce overtime, and that he did not leave work until the last truck had returned. The EEOC also asserts that pretext is established based upon the evidence that foreman Cedric Jones, age 39 at the time, knew that some of his drivers finished early and went home without calling him, and Jones was not disciplined. In addition, in 2000, LaBruzzo stated he did not want drivers picking up other drivers’ routes. All of this evidence, however, goes to the prima facie case of whether Jackson was
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satisfactorily performing his job and does not establish that the true reason for termination was Jackson’s age.
To the extent the EEOC is arguing that Jones is a similarly situated employee who was treated more favorably than Jackson, the EEOC has not established that he was similarly situated. At most, the EEOC has shown that Jones knew that some drivers finished early and went home without calling him. There is no evidence that Jones allowed drivers to corral and hide out. Therefore, Jones is not an appropriate comparator.
Next, the EEOC argues pretext based on the fact that San Fillipo did not fire anyone else for failing to cover routes. This argument does not establish pretext because the EEOC did not show that there was another supervisor who failed to cover routes that could have been terminated but was not.
Finally, the EEOC contends that pretext is established because Defendants stated Jackson was laid-off in their discovery responses, but later claimed he was terminated for performance reasons. In addition, when he was terminated, Jackson was told that the company wanted to go in another direction and that he did not fit in, and he was given severance pay.
Although an offer of a severance agreement does not itself raise an inference of pretext, see Mundy v. Household Fin. Corp., 885 F.2d 542, 547 (9th
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Cir. 1989), “fundamentally different justifications for an employer's action would give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason.” Payne v. Norwest Corp. 113 F.3d 1079, 1080 (9th Cir. 1997) (citing Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993)); cf Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir .2002) (shifting reasons for discharge do not create an issue of fact regarding pretext where those reasons are not incompatible). This is because varying reasons may show that the stated reason was pretextual “for one who tells the truth need not recite different versions of the supposedly same event.” Id. While the employer's shifting explanations may be “acceptable when viewed in the context of other surrounding events. . . . such weighing of the evidence is for a jury, not a judge.” Id.
Certainly, being laid off because the company wants to go in another direction is fundamentally different from being terminated based upon poor performance or insubordination. Moreover, Defendants have never alleged that there was a reduction in force and the reason they chose Jackson was based upon performance issues. Instead, Defendants told Jackson the company wanted to go in another direction, offered him severance, responded in discovery that he was laid off, but later in deposition testimony stated he was terminated for performance
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reasons. Accordingly, the EEOC has produced enough evidence to create a genuine issue of fact regarding pretext.
For these reasons summary judgment is DENIED with respect to Jackson’s claims.
12. Jimmy Hilton Jimmy Hilton, born 1947, was hired in 1975. In 2000, Hilton was employed as the Routing Manager. Defendants claim that his position was eliminated in 2000, and he was terminated by Paul LaBruzzo. President Steve Kalish testified that Hilton was terminated because the company went from a custom routing department to a software routing system, which eliminated Hilton’s role in the company. The EEOC disputes that Hilton’s position was eliminated because Defendants continued to have Routing Department and they did not offer Hilton training on the software. Kenny Feinberg, born 1955 and age 46 at the time, testified that he replaced Hilton and became the manager of the Routing Department.8
8 Although the EEOC provided evidence regarding Hilton’s termination in 2000, its only argument with respect to this position is that there were numerous reasons given for the termination in 2000. This Court does not find that numerous reasons were given. Although Hilton may have been told that the Routing Department was closing, which it was not, there is no evidence that Hilton’s position of custom routing was still available or that the Routing Department still performed those duties. The EEOC does not argue pretext with respect to this
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Hilton was re-hired by LaBruzzo as a Relief Route Supervisor in 2001, at the age of 54. On March 25, 2001, Hilton was given a warning regarding his performance because the company had received complaints from customers. Hilton was terminated in June 2001. LaBruzzo testified that Hilton was terminated because he did not get to work on time, and he did not check his trucks while they were on route.
Defendants argue that the EEOC cannot prove that Hilton was satisfactorily performing his duties as a Relief Route Supervisor. This Court agrees. Hilton did not contest that customer complaints were received or that he did not get to work on time or that he checked his trucks while they were on route. Indeed, the EEOC did not even attempt to establish this point and only argued pretext in its opposition. Accordingly, there is no evidence that Hilton was satisfactorily performing his duties.
Even if the EEOC could establish its prima facie case, its arguments regarding pretext do not create a genuine issue of fact. First, LaBruzzo re-hired Hilton at the age of 54, and fired Hilton months later. The Ninth Circuit has long held that “where the same actor is responsible for both the hiring and the firing of a
position. Accordingly, this Court assumes that Hilton’s claims are based only upon his 2001 termination.
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discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996); see Diaz, 521 F.3d at 1209 (an inference of discrimination is not warranted where the company laid off many employees “only shortly after hiring them at what were already relatively advanced ages. . . If [the employer] was biased against older workers, it presumably would not have hired [the] [p]laintiffs in the first place”). However, “[t]he same-actor inference is neither a mandatory presumption (on the one hand) nor a mere possible conclusion for the jury to draw (on the other). Rather, it is a ‘strong inference’ that a court must take into account on a summary judgment motion.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1096 (9th Cir. 2005).
The EEOC attempts to rebut this strong inference by arguing that Hilton was set up to fail. The EEOC, however, presented only Hilton’s testimony that the relief supervisor position was difficult because Hilton did not know each area well enough so that he could easily replace workers who were absent. This in no way establishes that Hilton was set up to fail.
The EEOC next argues that it appears that LaBruzzo’s initials appear to have been fabricated on a memo regarding scorecards that Hilton allegedly failed to submit. Even if it were true that the initials were fabricated, the EEOC
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has not shown that the failure to fill out scorecards was the basis for Hilton’s termination or that such alleged conduct by Hilton played any role in his termination.
The EEOC next argues pretext based upon a list of employees and the reasons for termination that was provided in discovery which states that Hilton was terminated on June 30, 2001 as part of a reduction in staff, rather than for poor performance. This, however, without more as was the case with Mid Jackson, does not establish pretext, especially where it is undisputed that Hilton was not satisfactorily performing his duties.
The EEOC has not offered sufficiently probative evidence that would allow a reasonable fact finder to conclude either that the alleged reason for Hilton’s discharge was false, or that the true reason for his discharge was a discriminatory one.
Accordingly, Defendants’ motion is GRANTED with respect to Hilton’s claims.
13. Nico Kelley Nico Kelley, born 1955, was 50 years old when he was hired by RSSD in May 2005 as a casual pitcher/driver in the residential line of business at the Sloan Transfer Station. In June 2005, Kelley worked as a Roll-Off Driver. On
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June 28, 2005, Route Supervisor Ray Lindsey terminated Kelley and sent him back to the Union hall because after two and a half weeks of training, Kelley was not progressing and not performing up to standards.
Between January 1, 2001 through June 2006, 34 casual employees at Sloan were terminated for poor work performance and failure to pass the probationary period. Of those 34, only 12 were over the age of 40.
Kelley testified that on the day he was terminated Lindsey told him that he was not going fast enough and that there were younger employees who went faster than him. Lindsey also allegedly said “I already got an old white guy doing what you do.”
Kelley’s testimony of age-related comments made by the decisionmaker at the time Kelley was terminated raise a genuine issue of fact of whether Kelley was terminated based upon his age. Accordingly, Defendants’ motion with respect to Kelley’s claim is DENIED.
C. Employees Allegedly Terminated for Position Eliminations and Consolidations 1. Eddie Williams, Robert LaRocca & William Lacy William Lacy was initially hired a casual pitcher by Silver State
Disposal in 1973. He became a regular driver in 1974, and was later rehired in
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1983. Robert LaRocca was hired as a casual pitcher by Silver State Disposal in December 1976. Eddie Williams was hired as a casual pitcher by Defendant Silver State Disposal on January 3, 2003.
In January 2003, Williams was working as the Route Supervisor for the morning AM Commercial Front Loader shift at the Cheyenne Transfer Station and his salary was $78,000 a year. LaRocca was the Route Supervisor for the evening shift and his salary was also $78,000 a year. Lacy was the Relief Route Supervisor for Williams and LaRocca, and Lacy’s salary was $59,000 a year. Collectively, Williams, LaRocca, and Lacy are referred to herein as the “Route Supervisors.”
In January 2003, Defendants consolidated the AM and PM Commercial Front Loader shifts into one shift starting at approximately 6:00 a.m at both the Sloan and Cheyenne Transfer Stations. Williams, LaRocca, and Lacy were terminated from employment on January 3, 2003. Williams was 55 years old at the time, LaRocca was 56, and Lacy was 57. At the time of their termination, Lacy and LaRocca were presented with a Separation Agreement and Release of Claims (the “Separation Agreement”). The Separation Agreement included waivers of tort and statutory liability, including age discrimination claims, in exchange for severance pay.
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After their termination, Chris Hannah and Cedric Deas assumed the supervisory duties of the Commercial Front Loader line of business at Cheyenne Transfer Station. Chris Hannah’s date of birth is March 16, 1967, and at the time of the assumption of duties, Hannah was working as the Operations Manager for Cheyenne. Chris Deas’s date of birth is December 15, 1967, and at the time of the assumption of duties had been working as a Route Supervisor for the Recycle Department.
Deas testified that he thought one of the Route Supervisors should have trained him prior to being let go. He also testified that at the time he was earning approximately $52,000 a year as Commercial Front Loader. When all of the trucks were moved to the AM shift, Hannah took over the responsibility of running the single A.M. Commercial Front Loader shift at Cheyenne, using Union member “Lead Men” to assist him after Deas elected to return to driving a truck.
Paul LaBruzzo made the decision to eliminate the three Cheyenne Front Loader Supervisor positions. Neither LaRocca, Williams, nor Lacy ever heard LaBruzzo make derogatory comments based on age.
Two days after terminating the three Route Supervisors, on January 5, 2003, Defendants ran an advertisement in the Las Vegas Review Journal, the local
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daily newspaper, for the Route Supervisor positions. Defendants ran additional advertisements in the newspaper for the positions on January 6, 19, and 22, 2003.
Lacy and LaRocca state that they would have considered a salary reduction rather than losing their jobs. LaRocca had, prior to 2000, previously accepted a salary reduction at Defendants’ request.
Defendants state that they decided to eliminate the positions of the three Cheyenne Front Loader Supervisors, and to use only one or two supervisors and Union member “Lead Men” as part of the consolidation of the A.M. and P.M. shifts and to reduce costs.
Plaintiffs Lacy and LaRocca filed an opposition to the instant summary judgment motion on July 29, 2008. (Doc. # 213.) In their opposition, Plaintiffs Lacy and LaRocca included a declaration from Gerald Benford, among other exhibits. Benford was previously employed by Defendants as the general manager of labor relations and human resources, and was responsible for responding to the EEOC regarding the facts of this case. Benford states that “salary considerations or payroll limits never were expressed or implied in any of the discussions pertaining to the terminations of the route supervisors. [His] entire understanding of reasons for the shift consolidation ostensibly related to reducing liability as a result of curtailing night driving.” (Benford Decl. ¶ 7.)
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On August 12, 2008, Defendants filed a Motion to Strike New Portions of Plaintiffs Lacy’s and LaRocca’s Opposition to Defendants’ Motion for Summary Judgment and Declaration of Gerald Benford. (Doc. # 225.) Lacy and LaRocca filed an opposition to the motion to strike on August 15, 2008. Defendants filed a reply on August 29, 2008. Defendants point out that in their initial motion for summary judgment filed September 10, 2007, they stated as follows “The decision to use only one or two supervisors (Chris Hannah and Cedric Deas) and Union member ‘Lead Men’ to oversee the consolidated Commercial Front Loader shift was essentially a financial decision to reduce costs.” Lacy and LaRocca responded in their original statement of Undisputed Facts that this statement was undisputed. Defendants argue that Benford’s declaration should be stricken because this Court allowed refiling of oppositions to the summary judgment motion only for purposes of addressing the revised dates of birth. Defendants state that this Court did not give Lacy and LaRocca free reign to significantly alter their previous statement of facts.
Lacy and LaRocca argue that this Court should consider the declaration in order to make a reasoned decision on the merits of the summary judgment motion. Lacy and LaRocca further argue that Defendants have not claimed that they have been prejudiced by a failure to provide responsive evidence.
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This Court denies Defendants’ motion to strike because Plaintiffs Lacy and LaRocca have not changed the substance of their argument by including the Benford Declaration. Specifically, the wording of the previous undisputed factual statement stated that the decision to eliminate the positions was essentially a financial decision to reduce costs.” The use of the word “essentially” implies that there were other reasons for the elimination of the positions. Accordingly, not disputing that financial considerations may have been involved, does not mean that it is undisputed that age was not a motivating factor in the decision or that financial considerations was a pretext for age discrimination. Moreover, Benford states only that reducing costs was not a part of the discussions he was involved in. Accordingly, Defendants’ motion to strike is denied and this Court will consider the Benford Declaration.
Here, it is undisputed that Williams, Lacy, and LaRocca meet the factors of their prima facie case of age discrimination since they are members of a protected class, were performing their jobs in a satisfactory manner, were discharged, and Defendants had a continuing need for their skills and services in that their various duties were still being performed by Hannah and Deas, and they ran advertisements for Route Supervisor positions.
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Defendants state that they have presented a legitimate reason for the elimination of the three Route Supervisor positions: a financial decision to reduce costs. Defendants claim that there is no disputing that the P.M. shift, which LaRocca previously supervised, was eliminated and that Lacy’s Relief Route Supervisor position was eliminated. Defendants also claim that Plaintiffs have not shown that the advertisements were for the Route Supervisor positions in the Commercial Front Loader line of business, rather than the Recycle or Residential line of business.
The problem with Defendants’ argument is although no employee currently holds the title of Route Supervisor for the Commercial Front Loader line of business, Plaintiffs have presented enough evidence to create a genuine issue of fact as to whether the alleged legitimate reason was a pretext for age discrimination. Specifically, all A.M. Route Supervisor duties are being performed by one or two much younger employees. Defendants have not shown why Lacy, LaRocca, and Williams were selected for layoff, rather than reconfiguring job duties and offering them, rather than Hannah and Deas, the newly defined position at a lower salary. Moreover, even if it is true that Hannah and Deas combined earn less than Williams, Lacy, and LaRocca combined, Defendants have not addressed the extra overtime pay paid to the Union Lead Men, who assist Hannah and Deas.
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Accordingly, it is unclear whether Defendants’ costs have actually been reduced or they could have believed would have been reduced at the time the decision was made.
Finally, Defendants are in the best position to know what job position was intended to be filled through the advertisements. On their face, the advertisements are not clear as to which line of business. Moreover, even if the advertisements were run to fill Route Supervisor positions in a line of business other than Commercial Front Loader line, Defendants have admitted that Deas was already the Route Supervisor for Recycle when he was asked to assume the Commercial Front Loader Route Supervisor duties. Defendants have not provided a reason why Deas’s position was not eliminated and Lacy, LaRocca, or Williams asked to assume Deas’s duties. See Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008) (“[w]here a reduction in force is involved, the employer must not only explain the reasons for the reduction in force, but must also explain why each particular plaintiff was selected to be laid off”).
For these reasons, Plaintiffs Williams, Lacy, and LaRocca have created a genuine issue of fact of whether they were terminated on the basis of their age. Defendants’ motion is DENIED with respect to Lacy, LaRocca, and Williams’ claims.
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2. Clayton Hickman Clay Hickman, born 1947, was hired in April 1992, and was later promoted to the position of office manager. His duties included preparing work schedules for office staff, reviewing truck tonnage reports, ordering office supplies, customer service, and payroll. Defendants allege that in the end of 2002, after evaluating the administrative work force at the Cheyenne Transfer Station, General Manger of that station, Paul LaBruzzo, determined that Hickman did not have a full days worth of work to do. LaBruzzo stated he set out to consolidate positions because he did not want two positions, each having only a half of a days work. Hickman was terminated in January 2003. Hickman was 55 years old at the time of his termination. Defendants state that Hickman’s position was consolidated with LaBruzzo’s executive assistant, Rhonda Walters’, duties and she assumed Hickman’s former duties. The EEOC contests the determination that Hickman did not have a full days of work to do, because after taking over Hickman’s job, LaBruzzo let Walters work overtime so that she could learn the officer manager position. In addition Walters had no prior experience working as a supervisor or experience with payroll and the timekeeping system. Walters testified that it took her several
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months to one year to learn all of her duties well. The EEOC also disputes that Walters performed Hickman’s job in addition to her regular duties. Instead, Walters, who was 37 years old at the time, was promoted to the office manager position. In addition, Walters testified that two years after Hickman was terminated, she performed only some of her former secretarial duties and other duties were given to other departments.
The EEOC states that Hickman asked if he could be demoted, and LaBruzzo responded no. Hickman asked if the officer managers at the other transfer stations were being terminated and LaBruzzo told him they were, even though they were not.
Before Hickman was terminated he was teaching Joe LaBruzzo, Paul’s brother, some of the office manager duties and Joe LaBruzzo was acting as co-manager at the Cheyenne Transfer Station. Joe LaBruzzo, born 1958, and 11 years younger than Hickman, was later transferred to the officer manager position at the Sloan Transfer Station. Latondia Coleman, born 1968, was 21 years younger and worked as the Henderson Transfer Station manager. Neither of these employees were terminated.
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Hickman admitted that LaBurzzo never directed age-related comments to him or other employees and at the time of his termination and he did not believe that he was terminated because of his age.
Defendants argue that Hickman cannot establish that he was replaced by a younger employee, since his duties were assumed by others. The EEOC, however, has provided enough evidence to show that Defendants had a continuing need for Hickman’s skills and services in that his duties were still being performed by a younger employee, Walters. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996) (employee did not have to show that he was directly replaced by a younger employee “it is enough that [his] duties were substantially transferred” to a younger employee). Thus, the EEOC has met the prima facie case.
Defendants argue that the consolidation of duties to achieve efficiency and save costs is a legitimate non-discriminatory reason for termination. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 (9th Cir. 1994) (the decision to decentralize the human resources function and have duties assumed by others is a legitimate, nondiscriminatory reason for a termination). Defendants, however, have no evidence to support their allegation that they consolidated positions to reduce payroll.
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Defendants argue that the EEOC’s position that Walters should have been terminated rather than Hickman is a simple disagreement with respect to the decision and does not show that Hickman was terminated based upon his age. This Court disagrees because Defendants provide no reason why when deciding to consolidate positions, they did not terminate Walters’ position, rather than incurring months of overtime training her to be promoted to Hickman’s position. In other words, Defendants have not explained why Hickman was selected for termination.
“As workers age, their marginal productivity may fall and the costs of retaining them may rise, whether through higher benefits costs or the higher salaries they've earned. As a result, employers might think that younger workers can do the same work as older workers at a lower price, whether measured in time or money. Giving effect to these assumptions by swapping the older with the younger worker would be an act of age discrimination.” Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054, 1065 (7th Cir. 2008) (citing Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 586-87 (2004) and Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
As Defendants have failed to provide a legitimate reason for selecting Hickman in particular over Walters when consolidating the two positions, this
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Court need not engage in an analysis of pretext. For these reasons, Hickman’s claims survive summary judgment and Defendants’ motion is DENIED.
3. James Cornell James Cornell, born 1944, was hired in 1980 as a public relations representative and he worked in the administrative offices. In 1981, he became the building manager and he was responsible for ordering office supplies, janitorial services, general building maintenance, and sorting and distributing company mail. Cornell’s employment was terminated on January 3, 2003, and he was told it was due to company downsizing. President Steve Kalish testified that Cornell’s only responsibilities at the time were to take care of the mail, but the company changed its mail system and therefore Cornell’s position was eliminated. Cornell was 58 years old at the time. Cornell’s duties were reassigned to Ron Mauro, born 1942, and Greg Caldwell, born 1953. Mauro had previously performed Cornell’s duties when Cornell was ill or on vacation. No one was hired to replace Cornell. Cornell testified that he knew President Steve Kalish since he started working there in 1980, but that in the last five years of his employment, Kalish referred to him several times as “old man.” Specifically, Kalish would say “Hi,
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Old Man,” or if he needed something right away he would say, “Come on, Old Man, get it done.”
As discussed elsewhere in this order, the use of the term “old man” while in passing and unrelated to the elimination of the position is a stray remark, insufficient to prove discrimination by direct evidence. Accordingly, the EEOC must proceed through the burden shifting framework.
The EEOC, however, cannot establish that Cornell was replaced by a younger employee. The person who assumed the majority of his duties was two years older than him.
The EEOC next argues that it can establish an inference of discrimination and pretext based on alleged shifting reasons for Cornell’s termination. The EEOC states that Kalish testified that Cornell’s position was terminated because of the change in the mail system, yet Kalish did not know who made the decision to change the mail system. In addition, the HR Director Benford testified that the building manager position was eliminated. The EEOC’s argument lacks merit because the reasons given by Defendants for Cornell’s termination are not inconsistent. See Nidds, 113 F.3d 912, 918 (9th Cir. 1996) (where the reasons given are not incompatible they do not raise an issue of fact with respect to pretext). Both Kalish and Benford consistently testified that Cornell’s position was
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eliminated. Moreover the EEOC has not disputed that sorting the mail was a primary duty for Cornell, that it took up a lot of his time, and that the mail system was changed.
In addition, the EEOC has not shown that Kalish’s calling Cornell an old man were tied directly to the elimination of prior mail system or to Cornell’s termination. The use of the term old man in passing, with no indication as to when they were made, does not establish that Cornell’s position was not eliminated, or that the reason provided is not worthy of credence. For these reasons, Defendants’ motion with respect to Cornell’s claim is GRANTED.
4. Sharon Derengowski; Timothy Gittus, Kevin Stockton and Bernard Lucido
In 1997 when Republic Industries purchased Silver State Disposal, the Data Processing department consisted of Manager Bernie Lucido, born in 1952, Timothy Gittus, born in 1956, Kevin Stockton, born 1960, Sharon Derengowski, born 1950, and three other people. Derengowski was Lucido’s administrative assistant. At that time, RSSD had custom software programs for billing, payroll, accounting and other functions, which were written, maintained and modified by the programmers and run off a local UNISYS server.
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The department became known as the Information Technology (“IT”) department. Over time RSSD replaced at least some of the custom software programs, which Lucido, Gittus, and Stockton worked on and maintained, with standardized programs that were used by all other RSI subsidiaries.
On January 3, 2003, IT positions were eliminated and Gittus, Stockton, and Derengowski were terminated. Tim Gittus was 46 years old at the time he was terminated, Kevin Stockton was 42, and Sharon Derengowski was 52 years old. Lucido was terminated in June 2003. He was 50 years old at the time. Employees remaining in the department were Eric Stewart, age 33 at the time, Frank Billotti, age 41 at the time, and Randy Larson, age 48 at the time.
Defendants state that the positions were eliminated because the custom software and local server were replaced in favor of outside services or standardized software run off a server in Florida, and administered by employees in Florida. No new persons were hired to fill the eliminated positions.
Gittus testified that 100% of his responsibilities involved payroll, and that before his position was eliminated RSSD outsourced its payroll function to ADP, which had the effect of transferring approximately 40% of his duties to ADP. Lucido testified that the switch to ADP was done in 1999 or 2000. In addition, Gittus testified that RSSD started using a different software program for billing
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and he no longer supported that system, and Randy Larson supported the new software. Lucido testified that the switch occurred in September 2002, and there was no longer a need to write code or maintain any custom billing software run off the UNISYS system.
It is clear from the record that all of Gittus’s duties were outsourced to ADP or subsumed by the standardized software and he was not replaced. Thus, the EEOC has failed to prove its prima facie case with respect to Gittus. The EEOC has failed to provide any evidence that could create a genuine issue of fact that the reason Gittus’s position was eliminated was a pretext for age discrimination.
Derengowski was responsible for installing terminals, PCs, printers, inventory, and assisting employees on their PCs. In 2002, she became the Sofpak administrator. Defendants customized Sofpak and renamed it RSI. Derengowski was trained in RSI a few months prior to her termination. The EEOC asserts that after Derengowski was terminated, her duties were assumed by Billotti, who was 11 years younger than her, and Larson, who was four years younger than her.
The evidence does not support the EEOC’s assertion that Derengowski’s duties were assumed by Billotti. Stewart testified only to Billotti’s current functions as of the time of his deposition and that Billotti’s duties remained the same as they were before Derengowski’s termination.
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With respect to Larson, Derengowski testified that he told her that his job was changed from programmer to RSI administrator and he received training for that job. The EEOC presented evidence that Larson made $34 an hour, whereas Derengowski made only $18.70 and hour. Defendants assert that the higher salary reflects Larson’s skills as a computer programmer, which he could use to adapt RSI applications, and that Derengowski did not have such skills. The EEOC presented evidence that Larson was told to pass more of his work to Lynn. In 2003, there was no employee named Lynn in the IT department.
Defendants argue that even if Larson took over Derengowski’s duties, the age difference between them is only four years, which is insufficient to create an inference of age discrimination. Regardless, the EEOC has presented sufficient evidence to create a genuine issue of fact of whether Derengowski’s skills and position was still necessary, whether she was replaced by Larson and Lynn, and whether Lynn is younger than Derengowski.
With respect to Lucido, the EEOC presented evidence that approximately one year after Lucido was terminated, Eric Stewart became IT manager. Defendants argue that although it is true that Stewart became a manager, it was not the same position held by Lucido because Lucido had six people who
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reported to him, whereas by the time Stewart became manager, there were only two people reporting to him, and Lucido’s efforts focused on writing custom programs.
The EEOC has presented enough evidence to create a genuine issue of fact as to whether Defendants’ reasons for termination of Lucido were pretext since Defendants have not explained why Stewart was better suited for the managerial position than Lucido, or why Lucido was selected for lay off rather than Steward.
With respect to Stockton, the EEOC presented evidence that Stewart used Stockton as an independent contractor several times over the next three years, each time for several months, to complete or fix problems with the custom software and programs that he had created and to create other custom programs. In addition, there is conflicting testimony as to when the UNISYS server stopped being used, whether that occurred two weeks before the January 2003 terminations, or sometime after June 2003.
The EEOC has presented enough evidence to create a genuine issue of fact as to whether Defendants’ reasons for termination of Stockton were pretext since Defendants have not presented evidence to support their assertion that employees in Florida performed the IT services or that they used outside services to perform the services that Stockton performed. Defendants’ statement that the customized software was completely replaced with standardized software is belied
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by the fact that Stockton was hired as an independent contractor to complete and fix customized programs he had created. In addition, Defendants have not provided a reason for selecting Stockton in particular for lay off.
For these reasons, the summary judgment motion is GRANTED with respect to Gittus, and DENIED with respect to Derengowski, Stockton and Lucido.
5. Jon Krieger Jon Krieger, born 1940, was hired by RSSD on November 6, 1985. In 2004, Krieger worked as a Paint Shop foreman at the Cheyenne Transfer Station. In approximately June 2004, Cheyenne General Manager Paul LaBruzzo decided that the duties of the Paint Shop supervisor, the Container Shop supervisor, and Compactor Shop supervisor could be condensed into one or two supervisory positions covering all three shops. The other two shop supervisors at the time were Container Shop supervisor Armando Teijeiro, born in 1967, and Compactor Shop supervisor Craig Milburn, born in 1963. In deciding which position(s) to eliminate, LaBruzzo considered the salaries of the three individuals, and who had the better managerial and people
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skills, and fewer complaints in their departments. During this period it was decided that Teijeiro would go back to being a welder in the Container Shop.9
LaBruzzo testified that he believed that Craig Milburn had the better qualities in terms of being a manager and Teijeiro was a far second. LaBruzzo also testified that the decision was ultimately made based upon who had the higher salary. LaBruzzo testified that the plan was to terminate Kreiger and his duties would be absorbed by Milburn.
Krieger was not given an opportunity to transfer to a different position. Krieger was 64 years old when his position was eliminated.10 Teijeiro was 37 years old and Milburn was 41 years old at the time the decisions were made.
The EEOC argues that it can establish pretext because Milburn in fact had the highest salary of the three supervisors. The EEOC calculated Milburn’s salary to be $1,465.35 per week, whereas Krieger earned $1,118 per week, and Teijeiro earned $1,120 per week. However, according to the details from EEOC’s
9 It is disputed whether or not Teijeiro requested to be moved back to a welder position.
10 Defendants assert that Krieger had led others to believe that he was ready to retire. These allegations, however, were not connected to the reason for eliminating his position. In other words, Defendants have not claimed that the reason he was terminated was because he was going to retire soon anyway.
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own calculations set forth in their brief, the annual salary for Krieger was $58,136, $58,240 for Teijeiro, and $58,614 for Milburn. Therefore, the EEOC has not presented evidence that Milburn in fact earned a significantly higher salary than Krieger. Instead, it appears to be a difference of approximately $500 annually. Moreover, the EEOC has not challenged LaBruzzo’s determination that Milburn had the fewest complaints.
The EEOC also presented evidence of age-related comments. Those comments, however, were made by a former supervisor, who was older than Krieger and who was not involved in the decision to eliminate Krieger’s position. Thus, the EEOC has not connected this evidence to Krieger’s termination.
Accordingly, the EEOC has not presented enough evidence to create a genuine issue of fact regarding pretext. Therefore, the summary judgment motion is GRANTED with respect to Krieger.
6. Michael Miller Michael Miller, born 1938, was hired as a field agent in 1984. He was supervised by Steve Kalish until 2000. Miller was terminated on January 3, 2003. He was 65 years old at the time. Miller believes his termination was based upon his age because others in their 30s and 40s who performed the same job were not fired.
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Defendants assert in their motion that Miller was terminated due to downsizing when RSSD reduced its number of field representatives and transferred many of the duties to the customer service department. Miller testified that he was told the reason for eliminating his position was that the company was downsizing at the direction of the parent company in Florida, RSI. Defendants have not submitted evidence of the reason for termination.11
Two months prior to Miller’s termination, on November 2, 2002, Defendants hired Ms. Richards, born 1970. Two months after Miller was terminated, on March 18, 2003, Defendants hired Philip Tremblay, born 1980.
Benford testified that Miller’s then supervisor, Cheryl Martello, made the decision to eliminate Miller’s position. However, Benford also testified that Kalish made the decision.
Miller testified that President Kalish often called to him and referred to him as “old man,” or “grey-haired old fart,” but that “old man” was Kalish’s favorite term. (EEOC Ex. 45 at 35.)
Taking the evidence in the light most favorable to the EEOC, the EEOC has established a genuine issue of fact regarding whether the alleged
11 In their brief, Defendants state that Benford testified that the position was eliminated. Benford, however, did not provide the explanation stated in the brief in the portion of his deposition cited by Defendants.
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legitimate reason for terminating Miller’s position was a pretext for age discrimination. Indeed, Defendants have not provided a reason why Miller was selected for termination rather than any of the other younger employees who held his same position. Accordingly, Defendants’ summary judgment motion is DENIED with respect to Miller’s claims.
D. Employees who Allegedly Resigned or Were Terminated for Other Reasons 1. Elmo Walker Elmo Walker, born 1941, was hired as a pitcher/driver in 1970. In
2000 or 2001 Walker worked as the Commercial Front Loader PM Route Supervisor at the Sloan Transfer Station, until RSSD consolidated the AM and PM shifts, and Walker became the supervisor of the consolidated day shift.
In 2003, Walker told Director of Labor Relations Gerald Benford that he was going to retire. Walker told others he was leaving. Walker was approximately 62 years old. Walker believes that he was set up to fail because combining the AM and PM shifts required him to work 2 to 3 hours extra each day, increased his responsibilities, and caused a tenfold increase in customer complaints. Sean White, who covered for Walker when Walker was on vacation, believed that Walker was pushed out.
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Defendant threw Walker a retirement party and Kalish gave him a special note commemorating his time with the company. After Walker left the company, White, age 35, and Marvin McCullah, age 38, performed as leadmen and Danny Ficklin, age 41, assisted them by taking care of budgeting and employee discipline. The EEOC asserts that this shows that three younger people performed Walker’s duties. The EEOC also asserts that forcing Walker out was not a sound financial decision because the three younger employees who were allegedly performing Walker’s duties combined, earned more than Walker, yet were less experienced.
Walker testified that Steve Kalish, President of all operations in southern Nevada, sometimes joked with him about his age, and also said “[w]hen are you going to get your old ass out of here.” (EEOC Ex. 58.)
Here, the EEOC has not provided sufficient evidence to create a genuine issue of fact regarding constructive discharge. The evidence provided does not show that additional responsibilities taken on by Walker were a result of discrimination or that the AM and PM shift were consolidated to set Walker up for failure based upon his age. The evidence submitted is insufficient to create a question as to whether the working environment was so intolerable that Walker’s resignation was a fitting response, neither does it show a pattern of discrimination.
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See Pickens v. Astrue, No. 06-35325, 2007 WL 3225465, at *2 (9th Cir. 2007) (“None of the acts upon which Pickens relies left early retirement as the only reasonable alternative.”).
At most, the EEOC established that the consolidation of the AM and PM shift resulted in more responsibilities and longer working hours for Walker. There is no evidence connecting this business decision to Walker’s age or establishing that it was so intolerable and discriminatory that a reasonable person would have retired. For these reasons, summary judgment is GRANTED in favor of Defendant with respect to Walker.
2. Jessie Williams Jessie Williams, born 1946, was hired by Silver State Disposal in 1974 as a pitcher/driver and he soon thereafter became a driver. After ten years he was promoted to a Route Supervisor. In 2000, Williams became the Residential Route Supervisor at the new Henderson Transfer Station. In 2002, General Manager Joe Knoblock informed Williams that the company would become more computerized. Knoblock was concerned because he knew Williams could not read and write. Knoblock offered to send Williams to school and Williams was receptive at the time.
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Williams was separated from employment on January 3, 2003. He was 56 years old at the time. Knoblock states that several weeks after the conversation he had with Williams about going to school, Williams told him he wanted to retire. Williams testified that approximately six months before he was terminated, President Kalish said at a foreman’s meeting that “old Uncle Toms’ like Haywood” would not be working for the company anymore. (EEOC Ex. 62 at 58.) Williams also testified that prior to the termination meeting with Knoblock, Knoblock stated that the company needed to hire younger people with fresh and new ideas and that the people from RSI in Florida would be “cleaning house.” (Id. at 41.) Knoblock presented Williams with a Severance Agreement, and stated he should accept the severance pay, keep his pride, and tell everyone that he retired. Knoblock also allegedly told Williams that if he signed the Severance Agreement, he could work seven or eight more months, but after signing the agreement Knoblock told Williams that there was no use in coming in the next day. Williams testified that he was surprised he was being terminated. Williams believes that he was terminated from employment and that his relative lack of education was not a problem as he was able to perform the job for close to 30 years and Knoblock had chosen Williams to go to the Henderson Transfer Station.
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Although Defendants may have had a legitimate reason for terminating Williams’ employment based upon its modernization and Williams’ inability to read, given the age-related comments made by Knoblock close in time to Williams’ termination, summary judgment in favor of Defendant is inappropriate. The EEOC has provided enough evidence to raise a question of fact of an inference of age discrimination. See Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) (“Comments suggesting that the employer may have considered impermissible factors are clearly relevant to a disparate treatment claim.”) (citations omitted). Accordingly, Defendants’ motion is DENIED with respect to Jessie Williams.
3. William Adams William Adams was 57 years old when he began working in December 2002 for RSSD as a casual pitcher out of the Henderson Transfer Station. In April 2003, Adams began working as a sludge driver out the Apex location.12 On August 24, 2003, Adams became a regular employee. Adams received several write-ups over the next ten months, for what the EEOC claims were insignificant issues.
12Adams worked for a short period in August or September 2003 as a roll-off driver.
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On or about December 4, 2004, Adams received corrective notices for failure to tighten the locks on this tailgate, which allowed the tailgate to open and led to a spill of sludge, failing to report a load spill that allegedly occurred on Las Vegas Boulevard to his supervisor, and failing to report damage to the right side of trailer. Adams denied that he spilled the sludge, and denied that there was any damage to be reported. Adams objected to the discipline, and when he asked to the see the spill or damage he was told that the spill had already been cleaned up and the damage had been repaired.
Adams signed a “Letter of Commitment,” which was dated December 9, 2004. Adams was compelled to sign the letter if he wished to continue his employment for the company. If he did not sign the letter, he would have been terminated at that time. The letter acknowledged the December 4, 2004 corrective notices set forth above, and included Adams’ failure to document the reasons for not completing five loads within his ten-hour shift. Adams asserts that five loads could not be completed in a ten-hour shift because he was told to keep overtime to a minimum, and General Manager Alan Gaddy testified that at the time Adams was terminated, employees generally completed four loads during their regular hours and those who completed five loads were generally paid overtime.
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On December 13, 2004, Adams submitted a resignation letter to his supervisor David Fink, making his resignation effective December 25, 2004.
Adams testified that prior to receiving the write-ups, Fink had told him that a new management program was in effect and that they were “getting rid of a lot of the older people who were making $70,000 and did not even have a GED.” (EEOC Ex. 2 at 75.) In addition, a man named Curtis who worked on front end loaders also told Adams that he believed the company was trying to get rid of older workers with high salaries and little education. Finally, Adams testified that when he worked at Henderson and was assigned to work with younger people, Calvin Francis, the Operations Manager, told one of the younger workers to “break him off.” According to Adams, this phrase meant to work the older workers hard or give them jobs they were unable to do.
The EEOC argues that Adams was constructively discharged based upon being written up for insignificant issues, which seemed excessive in comparison to younger drivers who caused significant accidents and damage, the Letter of Commitment was questionable, and based upon the comments made to him. Defendants argue that Adams cannot establish his constructive discharge claim based upon the alleged age-related comments because Adams was neither a higher paid employee or a management employee.
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This Court finds that Adams cannot meet the high burden required to survive summary judgment on a constructive discharge claim. First, Adams was hired at an advanced age of 57 years old. Second, Adams has not shown that his discipline was unwarranted or unfair compared to others. Indeed, Adams does not even name specific comparators who were treated better, or who were not disciplined for engaging in the same alleged insignificant misconduct. Instead, he merely vaguely references younger drivers. Moreover, Adams has not denied that he actually engaged in the misconduct that led to the discipline for the alleged insignificant issues.
Adams has only contested the sludge spill and his ability to complete five loads and keep overtime to a minimum. With respect to the sludge spill, however, Adams has not produced any evidence that the sludge spill did not occur, that it was unreasonable for Defendants to believe that the sludge spill occurred, or that it was unfair to require him to enter into a Letter of Commitment based upon the sludge spill accident. Courts have consistently held that they should not second guess an employer’s exercise of its business judgment in making personnel decisions, as long as they are not discriminatory. Therefore, an employer’s belief that the employee’s performance was unsatisfactory, even if mistaken, is not grounds for inferring discrimination. See Russell v. Placeware, Inc., No. Civ.
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03-836-MO, 2004 WL 2359971, at *10 (D. Or. Oct. 15, 2004) (“the Ninth Circuit has warned courts to be careful not to punish employers for making valid business decisions”) (citation omitted); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 1994) (“The mere submission of materials from a co-worker or supervisor indicating that an employee's performance is satisfactory, or more specifically that an employee's performance is satisfactory because he was not entirely responsible for several admitted mishaps, does not create a material issue of fact.”); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (where there was no evidence of a basis for doubting sincerity at the time of an articulated motivating reason for an employment action, the reason was not converted into pretext merely because, with the benefit of hindsight, it turned out to be poor business judgment); Furr v. Seagate Tech., Inc., 82 F.3d 980, 986 (10th Cir. 1996) (employment laws not violated by erroneous or illogical business judgment); Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (“Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons.”); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) (“Courts may not sit as super personnel departments, assessing the merits-or even the rationality-of employers' nondiscriminatory business
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decisions."); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (“The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”).
Because there is no evidence showing that it was unreasonable for Defendants to believe the sludge spill occurred and to discipline Adams for that act, Adams has not established that the Letter of Commitment was unwarranted and therefore a part of a pattern of discrimination.
Finally, the one comment by the supervisor which did not pertain to Adams in particular could not reasonably create a work environment so hostile that a person would feel compelled to quit. Therefore, this Court GRANTS Defendants’ summary judgment motion with respect to Adams’ claims.
4. Louis “Buster” Thomas Louis Thomas, born 1947, was hired in 1987. In 2005, he was working as a Commercial Front Loader driver at the Cheyenne Transfer Station. Thomas injured his left shoulder and lower back while working on January 17, 2005. He filed a worker’s compensation claim. Thomas had surgery on his left shoulder on February 16, 2005. Thomas worked in a modified duty position for a few months. During that time, General Manager Joseph Knoblock asked Thomas
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to pick up paper. Thomas believed that picking up paper would break the light duty restrictions that his doctor had placed upon him and that Knoblock made this request as a means to get rid of older employees.
Thomas testified that Chris Hannah told him and others that all the old guys would be replaced with younger employees at the direction of higher management. The EEOC also points to a comment made by Knoblock two years earlier that the company needed to hire younger people with fresh and new ideas.
In late April 2005, Thomas took a Functional Capacity Evaluation. The evaluator concluded that Thomas could only perform sedentary work. The evaluator stated that she was unable to complete testing due to Thomas’s heart rate and blood pressure. The evaluator found that Thomas “does not meet his preinjury occupation as a Driver . . . as this falls into the heavy physical demand level which he is not safe to perform at this time.” (Defs.’ Young Decl. Ex. 54 at Ex. 3.) It is undisputed that Thomas has been unable to work as a driver due to his shoulder injury.
Defendants’ Personnel Action Form indicates that Thomas was separated from employment on May 20, 2005, and he was referred to vocational rehabilitation. On July 15, 2005, Thomas accepted a lump sum payment of $15,000 in lieu of vocational rehabilitation. Thomas agreed that he did not wish to
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return to any employment with Defendants and that he agreed to voluntarily resign his employment, effective the date he received the lump sum payment.
Between January 2001 and May 2006, 99 employees ended their employment by accepting vocational rehabilitation services or choosing a buyout. Of the 99 employees, 38 were over the age of 40 and 61 were less than 40 years of age.
Thomas alleges that he was being pushed out of employment through the workers’ compensation scheme, like Michael Barnes, who is discussed below. The EEOC, however, has failed to create a genuine issue of fact regarding age discrimination. First, the EEOC asserts that Thomas was discriminated against based upon his age because Defendants hired younger employees with blood pressure problems, and gave them an opportunity to re-take the physical exam after resting for a period of time. It is undisputed, however, that each of these younger individuals had a slower heart rate than Thomas. Furthermore, even if Thomas had passed the blood pressure and heart rate conditions, it is undisputed that Thomas’s shoulder injury prevented him from working as a driver. Thomas did not show that any of these younger employees have injuries that prevent them from working as a driver.
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Moreover, although Thomas believed that Knoblock tried to make him break his light duty restrictions, Thomas has not shown that being asked to pick up paper was a violation of his light duty restriction. Finally, the EEOC has not provided evidence of an available job that Thomas could have performed. For these reasons, summary judgment is GRANTED with respect to Thomas’s claims.
5. Michael Barnes Michael Barnes, born in 1963, was hired in 1995. He was employed as a driver/pitcher for the Commercial Rear Loader line of business at the Cheyenne Transfer Station when he injured his shoulder, back and right knee on June 3, 2004, while lifting a trash can. Barnes was 41 years old at the time. Barnes went off of work the next day. Barnes was evaluated by Dr. Robert Braden. Dr. Braden found that Barnes had severe to marked hip osteoarthritis and due to extreme loss of motion in the hip joint area, his lower spine was placed in a significant compensatory state. Dr. Braden told Barnes that his deteriorating hips would progress rapidly due to the nature of his job as a pitcher/driver and he would need a hip replacement at an early age. Dr. Braden recommended that Barnes engage in another type of job because he was in serious jeopardy of further injury to his spine. On June 14, 2004, Dr. Braden released Barnes for work on restricted/ modified duty.
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Barnes’ termination date was noted as June 14, 2004, and he did not return to work. Instead, Romeo Vellutini, the workers’ compensation administrator, called Barnes and told him that he was being fired and placed on vocational rehabilitation. Barnes was represented by counsel for the workers’ compensation claim, and she asked to be provided with a reason for his termination. None was provided
On August 23, 2004, Dr. Firooz Mashhood confirmed that Barnes had degenerative joint disease of the hips and knee. Dr. Mashhood noted that Barnes indicated he believed he could return to his previous job. Dr. Mashhood agreed that Barnes could return to work full duty capacity, but requested an MRI of the hip. Dr. Mashhood provided a progress report stating that Barnes should be returned to work full duty no restrictions on August 24, 2004. Barnes’ attorney asked that he be returned to work based upon Dr. Mashhood’s recommendation.
On September 26, 2004, Dr. James Dettling agreed with the diagnoses and prognosis by Dr. Braden and stated that Barnes should strongly consider a different position.
Notes from the third-party workers’ compensation administrator dated October 2004, state that the employer does not want Barnes back at work and requests vocational rehabilitation.
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Based on an evaluation by Dr. Braden and other doctors, Defendants believed that due to various impairments, in conjunction with his job duties, Barnes was at risk of further injury to his spine and hips.
Barnes testified that he believed that he was discriminated against because he knew of younger employees who were allowed to return to work after an injury. In addition, he observed supervisors Tony Levy and Charles Holloway assigning older workers to younger workers to break off older workers. Barnes described “break him off” to mean wearing out older slower workers by making them run after trucks to catch up, and eventually they would quit.
The workers’ compensation insurer found that Barnes was unable to continue working in his Driver/Pitcher position. Barnes settled his claim in January 2005. Barnes received a lump sum payment for vocational rehabilitation of $15,000 and a lump sum payment for a permanent partial disability rating for his hip and spine of $39,452.58. Barnes claims that he was forced to accept the vocational rehabilitation over his request to return to work.
Barnes states that because Dr. Mashhood released him to go back to work on full duty on August 23, 2004, his termination from employment was unjustified. The EEOC argues that Barnes should not have been forced to accept
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the workers’ compensation settlement, and instead he should have been put back in his old job or returned to a non-driving supervisory position.
Defendants argue that as with Thomas, there is no evidence that could support an inference of age discrimination with respect to the offer of vocational rehabilitation. This Court agrees.
Here, the fact that one doctor released him for work with no restrictions, does not create an issue of fact regarding Defendants’ decision to rely on the workers’ compensation insurer’s, an independent party, finding that in turn was based upon two other medical opinions, that Barnes may severely injure himself or others if he maintained employment in the physically demanding job of a pitcher/driver. See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1178-79 (10th Cir.2006) (an assertion that an employer's time estimates were unreasonable and thus a basis for a retaliatory motive for later termination may have shown a mistake but did not raise a genuine issue of material fact where undisputed evidence in the record revealed that the estimates had been reviewed for reasonableness and approved by others).
Moreover, Barnes has presented no evidence that could link the offer of settling the workers’ compensation claim to his age. The EEOC presented no evidence that Barnes was forced to settle his claim. Even if Barnes felt he had no
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choice, the EEOC has not presented evidence that Barnes was forced out because of his age.
Finally, although Barnes was aware of the alleged “break him off” plan, he has never claimed that he was injured as a result of this plan. Therefore, the EEOC has not presented any evidence that Barnes was offered vocational rehabilitation and a settlement of his injury based upon his age.
For these reasons, this Court GRANTS Defendants’ summary judgment motion with respect to Barnes’ claims.
6. Laura Lucido Laura Lucido, born 1952, was hired as a data entry specialist in approximately 1983. In 2002, the employees in Lucido’s department were moved to the second floor of the building and they began reporting to Laura’s husband, Bernie Lucido. Prior to the move, Lucido reported to Sheryl Martello. People in the company were concerned about Lucido reporting to her husband and there were discussions of moving her elsewhere. Martello stated she would take her back and a few weeks prior to her termination offered Ms. Lucido a position in customer service. Martello states that Ms. Lucido turned down the offer because she wanted something in management and did not want to answer phones. Lucido testified that in 2002 Martello told her that they would be opening up a collection
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department and they wanted her to run it. The collection department, however, did not open until August 2004.
Ms. Lucido was terminated from employment on January 2, 2003. She was 50 years old at the time she was terminated. Steve Kalish and Martello made the decision to terminate her employment. Karen Van Der Linda, born 1964, assumed Lucido’s job duties. Van Der Linda is 12 years younger than Lucido. Van Der Linda’s duties were redistributed to other employees. Defendants assert that Lucido was terminated because she could not continue to report to her husband and no replacement position within the company had been accepted. Ms. Lucido testified that she was not subjected to any age-related remarks by any management at RSSD.
The EEOC has not provided any evidence from which it could create a genuine issue of material fact that Defendants’ legitimate reason for terminating Ms. Lucido was pretext for age discrimination. Accordingly, summary judgment is GRANTED with respect to Ms. Laura Lucido. II. Pattern and Practice
The EEOC attempted to rely on statistics to prove a pattern and practice of age discrimination with respect to the drivers employed by Defendants. The EEOC attached to its opposition a declaration by Marla Stern. Marla Stern is a
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Lead Systemic Investigator for the EEOC and she primarily investigates pattern and practice cases, performs statistical analysis using the Avail computer program, and trains others on conducting statistical analysis. The Avail program calculates the statistical significance of disparities in an employment selection process to help determine if the employer is employing a protected class at an expected rate. Ms. Stern used the Avail program to compare workforce data of Defendants with 2000 Census information. After applying the Fischer Exact Test, Ms. Stern states that “there is a statistical significance, in that the employer is under employing protected age group drivers when utilizing Clark County driver Census data. . . . The Avail results also shows that the Defendants employed -258.34 fewer [protected age group] drivers than would have been expected when compared with the 2000 Census.” (Stern Decl. ¶ 11.)
Defendants brought a motion to strike Stern’s declaration, arguing that she was an expert witness who was not properly or timely disclosed. This Court agreed and granted the motion to strike on November 26, 2008. (Doc. # 243.) This Court found that Stern’s testimony regarding a statistical analysis was unquestionably expert testimony and the EEOC failed to name her as an expert on or before the deadline. The EEOC sought reconsideration of that order, and specifically asked that this Court consider portions of Stern’s declaration. This
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Court denied the motion for reconsideration, stating that an expert was needed to explain whether the two groups that Stern sought to compare were in reality comparable and whether the difference between the two groups was statistically significant. Accordingly, the EEOC has no statistical evidence with respect to any category of employee.
Relying solely on the circumstances of the individuals in this case discussed above, the EEOC argues that Defendants, who employ approximately 1,700 individuals, engaged in a pattern and practice of age discrimination.
In order to establish liability for a pattern and practice claim of age discrimination, a plaintiff bears the initial burden of proving disparate treatment based upon age. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977). A pattern and practice claim must be based upon “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. It [must be] establish[ed] by a preponderance of the evidence that [age] discrimination was the company's standard operating procedure the regular rather than the unusual practice.” Id. The plaintiff must show “a prima facie case of systematic and purposeful employment discrimination.” Id. at 342.
Statistical and “anecdotal evidence of past discrimination can be used to establish a general discriminatory pattern in an employer's hiring or promotion
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practices.” Obrey v. Johnson, 400 F.3d 691, 698 (9th Cir. 2005). Statistics are relevant to determining a pattern and practice claim because they “can be used to establish a general discriminatory pattern in an employer's . . . practices. Such a discriminatory pattern is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue.” Obrey, 400 F.3d at 694. “[S]tatistical analyses have served and will continue to serve an important role in cases in which the existence of discrimination is a disputed issue.” Teamsters, 431 U.S. at 339-40 (citations and internal quotation marks omitted).
The EEOC did not provide any statistical analysis of Defendants’ hiring and termination practices and a comparison of ages of persons employed with those in the community.13 The EEOC cites Teamsters as support for its argument that the above instances are sufficient, without more, to create a genuine issue of fact of whether Defendants engaged in a pattern and practice of age discrimination. The EEOC’s reliance is misplaced, however, because in Teamsters, the Supreme Court found that the Government carried its burden of proof because it provided statistical evidence that was bolstered by “the testimony
13 The EEOC attempted to provide statistics relating to drivers, however, this Court struck that evidence, as noted above.
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of individuals who recounted over 40 specific instances of discrimination.” Teamsters, 431 U.S. at 338 (emphasis added).
The EEOC’s reliance on Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007) is similarly misplaced. Like the Supreme Court in Teamsters, the Ninth Circuit considered the anecdotal and circumstantial evidence set forth in 120 declarations, in addition to the statistical evidence presented by the plaintiffs. Indeed, the Ninth Circuit stated that “[c]ircumstantial and anecdotal evidence of discrimination is commonly used in Title VII ‘pattern and practice’ cases to bolster statistical proof by bringing ‘the cold numbers convincingly to life.’” Id. at 1182 (emphasis added). Neither of these cases represented a situation where no statistical evidence was presented and the anecdotal evidence alone was sufficient to withstand summary judgment.
As this Court has granted Defendants’ motion to strike Marla Stern’s Declaration, there is no statistical evidence currently before this Court from which this Court could make a comparison of percentages of those employed who are older or younger than 40 to the percentages of those terminated in the two age groups, or compare the ages of those hired to the ages of those in the community and determine if there was a statistically significant difference. The issue before this Court is whether the evidence of alleged disparate treatment discussed above is
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sufficient by itself to create a genuine issue of fact of whether age discrimination was Defendants’ regular, rather than the unusual practice. This Court finds that is does not.
At most, in a company of 1,700, the EEOC created a genuine issue of fact as to whether individuals were terminated because of their age. With a such a large company with numerous supervisors and lines of business, possible instances of age discrimination do not create an issue of fact as to whether it was Defendants’ usual practice to discriminate based on age. Instead, these instances are sporadic. Moreover, Defendants provided termination data for different transfer stations, types of jobs, and reasons for termination, as set forth above. None of that data created an inference of a pattern of age discrimination. Instead, the data created an inference that Defendants’ policies were evenly enforced, regardless of age.
Accordingly, absent some statistical evidence, the EEOC’s pattern and practice claim does not survive summary judgment. Defendants’ motion with respect to this claim is GRANTED.
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CONCLUSION For the reasons articulated above, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion for summary judgment. The Court GRANTS the summary judgment motion with respect to the disparate treatment claims of the following individuals: Randy Johnson; Daron Barnes-Reid; Eddie Wilson; Roderick Jones; Curtis Howard; Jesus Chanez; Lorrance Wilder, Jr.; Carlos Rasool as to the driver position; Albert Vassar; Dock Hines; Jimmy Hilton; James Cornell; Timothy Gittus; Jon Krieger; Elmo Walker; Laura Lucido; William Adams; Louis “Buster” Thomas; and Michael Barnes. The Court DENIES the motion with respect to the disparate treatment claims of the following individuals: Jeffrey Banks; Ron Thompson, Sr.; Vincent Marrazzo; Manual Encinas; Carlos Rasool as to the mechanic position; Billy Taylor; David Suazo; Keith Brown; Mid Jackson; Nico Kelley; Eddie Williams; William Lacy; Robert LaRocca; Clayton Hickman; Kevin Stockton; Sharon Derengowski; Bernard Lucido; Michael Miller; and Jessie Williams. This Court GRANTS the motion with respect to the EEOC’s pattern and practice claim.
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The Court DENIES Defendants’ Motion to Strike New Portions of Plaintiffs Lacy’s and LaRocca’s Opposition to Defendants’ Motion for Summary Judgment and Declaration of Gerald Benford.
IT IS SO ORDERED. DATED: Honolulu, Hawaii, February 16, 2009.
________________________________ DAVID ALAN EZRA UNITED STATES DISTRICT JUDGE
Equal Employment Opportunity Commission vs. Republic Services, Inc., et al., CV-S-04-1352-DAE(LRL); Robert LaRocca, et al. vs. Republic Services, et al., CV-S-04-1479-DAE(LRL); ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. AND REPUBLIC SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES; ORDER DENYING DEFENDANTS’ MOTION TO STRIKE NEW PORTIONS OF PLAINTIFFS LACY’S AND LAROCCA’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF GERALD BENFORD
120

 
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0

Anna Y. Park, Regional Attorney, CA Bar No. 164242 Derek W. Li, Supervisory Trial Attorney, CA Bar No. 150122 Sue J. Noh, Senior Trial Attorney, CA Bar No. 192134 U.S. Equal Employment Opportunity Commission 255 East Temple Street, Fourth Floor Los Angeles, CA 90012 Telephone: (213) 894-1082 Facsimile: (213) 894-1301 E-Mail: lado.legal@eeoc.gov
sue.noh @eeoc.gov Attorneys for Plaintiff EEOC
Bruce C. Young, Nevada Bar No. 5560 LITTLER MENDELSON 3960 Howard Hughes Parkway, Suite 300 Las Vegas, NV 89169 Telephone: (702) 862-8800 Facsimile: (702) 862-8811 Attorneys for Defendants Republic Services, Inc. and Republic Silver State Disposal, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.
REPUBLIC SERVICES, INC., REPUBLIC SILVER STATE DISPOSAL, INC., and DOES 1- 10, inclusive,
Defendants.

Case No. 2:04-cv-1352-DAE-LRL (BASE FILE) Consolidated with: 2:04-cv-1479-DAE-LRL
[PROPOSED] CONSENT DECREE

ROBERT LAROCCA and WILLIAM LACY,
Plaintiffs,
vs.
REPUBLIC SERVICES, a Delaware corporation, REPUBLIC SILVER STATE DISPOSAL, a Nevada corporation, and Does 1 through 25, inclusive,
Defendants.

1

I.

2

INTRODUCTION

3

A. Plaintiff U.S. Equal Employment Opportunity Commission (the “EEOC”) and

4 Defendants Republic Services, Inc. and Republic Silver State Disposal, Inc. (collectively,

5 “Republic”) hereby stipulate and agree to the entry of this Consent Decree (the “Decree”) to fully

6 and finally resolve Plaintiff EEOC’s complaint and first amended complaint against Republic in U.S.

7 Equal Employment Opportunity Commission v. Republic Services, Inc. et al.; Case No. 2:04-cv-

8 1352-DAE (LRL) (the “Action”). Collectively, the EEOC and Republic are referred to herein as the

9 “Parties.” On September 30, 2004, Plaintiff filed this Action in the United States District Court,

10 District of Nevada, for violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et

11 seq. (“ADEA”). The Action alleged that Republic discriminated against Robert LaRocca, William

12 Lacy and other similarly situated persons (collectively, the “Claimants”) on the basis of their age.

13 The EEOC alleged inter alia that Republic terminated and denied transfers to the Claimants on the

14 basis of their age.

15

B. Defendants Republic Services, Inc. and Republic Silver State Disposal, Inc. deny any

16 unlawful discrimination, harassment or retaliation of any sort, and deny all allegations of the EEOC,

17 the Claimants and Plaintiffs Lacy and LaRocca.

18

II.

19

PURPOSES AND SCOPE OF THE CONSENT DECREE

20

A. The Decree is made and entered into by and between the EEOC and Republic and

21 shall be binding on and enforceable against Republic’s Las Vegas operations, which are defined as

22 the Cheyenne Transfer Station, the Henderson Transfer Station, the Sloan Transfer Station and the

23 Area offices located at 770 E. Sahara Avenue (hereinafter referred to collectively as “Defendants”).

24

B. The Parties have entered into this Decree for the following purposes:

25

1. To provide monetary and injunctive relief to the Claimants and to Plaintiffs

26 Lacy and LaRocca;

27

2. To ensure that Defendants’ employment policies and practices are in

28 compliance with federal law; 2

1

3. To ensure a work environment free from retaliation;

2

4. To ensure training in employment discrimination law;

3

5. To ensure appropriate recording keeping, reporting, and monitoring;

4

6. To avoid further expensive and protracted costs incident to litigation; and

5

7. To provide a final and binding settlement upon the Parties.

6 There is no determination implied or expressed in this Decree regarding whether or not the current

7 policies, practices and procedures, training, record keeping, reporting or monitoring by Defendants

8 at their Las Vegas operations comply with the provisions and requirements of the ADEA.

9

III.

10

RELEASE OF CLAIMS

11

A. This Decree constitutes a complete resolution of all allegations of federal

12 employment discrimination arising from or relating to: (1) EEOC Charge Nos. 340-2003-09835 and

13 340-2003-09870 (collectively, “the Charges”); (2) the EEOC’s Complaint and First Amended

14 Complaint; and (3) any other claims that could have been brought as part of the Charges and

15 Complaints in this Action by the EEOC.

16

B. The Decree is not an adjudication or finding on the merits of this case and shall not be

17 construed as an admission or a violation of the Age Discrimination in Employment Act or any other

18 law by Defendants.

19

C. Nothing in this Decree shall be construed to limit or reduce Defendants’ obligation to

20 comply fully with the ADEA or any other federal employment law.

21

D. Nothing in this Decree shall be construed to preclude the EEOC from bringing suit

22 pursuant to §VII herein to enforce this Decree in the event that Defendants fail to perform the

23 promises and representations contained herein.

24

E. This Decree in no way affects the EEOC’s right to bring, process, investigate or

25 litigate charges or claims, other than those covered in § III(A), that may be in existence or may later

26 arise against Defendants in accordance with standard EEOC procedures.

27

28 3

1

IV.

2

JURISDICTION

3

A. The Court has jurisdiction over the Parties and the subject matter of this litigation.

4 The Action asserts claims that, if proven, would authorize the Court to grant the equitable relief set

5 forth in this Decree. The terms and provisions of this Decree are fair, reasonable, and just. This

6 Decree conforms with the Federal Rules of Civil Procedure and the ADEA; and is not in derogation

7 of the rights or privileges of any person.

8

B. The Court shall retain jurisdiction of this Action during the duration of the Decree for

9 the purposes of enforcing the relief provided herein, of entering all orders, judgments and decrees

10 that may be necessary to implement the relief provided herein, and otherwise effectuating the

11 purposes of the Decree.

12

V.

13

EFFECTIVE DATE AND DURATION OF DECREE

14

A. The provisions and agreements contained herein are effective immediately upon the

15 date which this Decree is entered by the Court (the “Effective Date”).

16

B. Except as otherwise provided herein, this Decree shall remain in effect for three (3)

17 years after the Effective Date.

18

VI.

19

MODIFICATION AND SEVERABILITY

20

A. This Decree constitutes the complete understanding of the Parties with respect to the

21 matters contained herein. No waiver, modification, or amendment of any provision of this Decree

22 will be effective unless made in writing and signed by an authorized representative of each of the

23 Parties.

24

B. If one or more provisions of the Decree are rendered unlawful or unenforceable, the

25 Parties shall make good faith efforts to agree upon appropriate amendments in order to effectuate the

26 purposes of the Decree. In any event, the remaining provisions will remain in full force and effect

27 unless the purposes of the Decree cannot, despite the Parties’ best efforts, be achieved.

28 4

1

C. By mutual agreement of the Parties, this Decree may be amended or modified in the

2 interests of justice and fairness in order to effectuate the provisions herein.

3

VII.

4

COMPLIANCE AND DISPUTE RESOLUTION

5

A. The Parties expressly agree that if the EEOC has good reason to believe that

6 Defendants have failed to comply with any provision of this Decree, the EEOC may bring an action

7 before this Court to enforce the Decree. Prior to initiating such action, the EEOC will notify

8 Defendants and/or their legal counsel of record, in writing, of the nature of the dispute (the

9 “Notice”). This Notice shall specify the particular provision(s) that the EEOC believes Defendants

10 have breached and identify the facts supporting the EEOC’s basis for that belief. Absent a showing

11 by either party that the delay will cause irreparable harm, Defendants shall have ninety (90) days to

12 attempt to resolve or cure any non-monetary breach unless the EEOC determines after sixty (60)

13 days that further attempts to resolve or cure would be futile. Defendants shall have ten (10) days to

14 attempt to resolve or cure any monetary breach.

15

B. The Parties agree to cooperate with each other and use their best efforts to resolve any

16 dispute referenced in the Notice.

17

C. After (90) days have passed with respect to any alleged non-monetary breach (sixty

18 (60) days if the EEOC determines that further attempts to resolve or cure would be futile), or ten

19 (10) days have passed with respect to any alleged monetary breach and if the Parties have reached no

20 resolution or agreement to extend the time further, the EEOC may petition this Court for resolution

21 of the dispute, seeking all available relief, including an extension of the term of the Decree and/or

22 any other relief the Court deems appropriate.

23

VIII.

24

MONETARY RELIEF

25

A. In full settlement of this lawsuit, Defendants shall pay a total gross amount of

26 $2,975,000 to Plaintiffs Lacy and LaRocca, counsel for Lacy and LaRocca, and the remaining

27 Claimants who are represented by the EEOC (known hereafter as “Identified Claimants”). Of this

28 amount, $1,800,000 shall be distributed to the Identified Claimants in individual amounts 5

1 determined at the sole discretion of the EEOC. The remainder shall be distributed to Lacy, LaRocca

2 and their counsel as set forth in their respective agreements.

3

B. Pursuant to the Minute Order issued by United States Magistrate Judge Lawrence R.

4 Leavitt (Docket No. 291), Defendants have made payment of settlement amounts designated for

5 Plaintiffs Lacy and LaRocca and their counsel.

6

C. The EEOC shall provide Defendants with a settlement distribution list and a W-9

7 form from each Identified Claimant identifying the mailing address of each Identified Claimant.

8 Within ten (10) days of the Effective Date, assuming the EEOC has provided Defendants the

9 settlement distribution list and W-9 forms prior to or on the Effective Date, Defendants shall forward

10 to each Identified Claimant, via certified mail, a check in the amount as designated by the EEOC.

11 All settlement monies shall be designated as backpay compensation under the ADEA. All monies

12 paid to the EEOC’s Identified Claimants shall be subject to the statutorily required deductions for

13 federal, state and local income tax withholding and social security/medicare tax withholdings.

14 Defendants shall pay the employer’s portion of all federal, state, and local taxes, including but not

15 limited to FICA and FUTA taxes, and such amounts shall not be deducted from the payments to the

16 Claimants’ monetary settlement amounts. Defendants shall prepare and distribute W-2 forms to

17 each Claimant at the same time and in the same manner that they issue W-2 forms to their current

18 employees for the applicable tax year.

19

D. Identified Claimant Eddie Williams (“Williams”) has entered into a separate

20 agreement (“Separate Agreement”) with Republic and the revocation period provided under the

21 Older Workers’ Benefit Protection Act has expired prior to the Parties signing this Decree. In

22 addition to the settlement amount he will receive as part of this Consent Decree, Defendants shall

23 also pay up to $400 to provide Williams with one hour of independent legal counsel to review the

24 Separate Agreement. The payment of up to $400 to provide Williams’ separate legal counsel to

25 review the Separate Agreement shall not be deemed income to Williams, but is designated as a legal

26 cost incurred by Defendants. The EEOC is not a party to any agreement between Republic and

27 Williams.

28 6

1

E. Within three (3) business days of the issuance of each settlement check, Defendants

2 shall mail a copy of the check and any cover letter or correspondence sent with the check to Anna Y.

3 Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, Los Angeles District

4 Office, 255 East Temple Street, 4th Floor, Los Angeles, CA, 90012.

5

IX.

6

SPECIFIC INJUNCTIVE RELIEF PERTAINING TO IDENTIFIED CLAIMANTS

7

A. Voluntary Resignation

8

Where necessary, Defendants shall change the central Lawson system termination code so

9 that the system reflects that all of the following individuals voluntarily terminated their employment:

10 Eddie Williams, Robert LaRocca, William Lacy, Jimmie Hilton, Jon Krieger, Jessie Williams, Elmo

11 Walker, Mid Jackson, Dock Hines, Clay Hickman, Sharon Derengowski , Timothy Gittus, Kevin

12 Stockton, Bernard Lucido, Laura Lucido, Jim Cornell, Michael Miller, Daron Barnes Reid, Eddie

13 Wilson, Michael Barnes, Louis Buster Thomas, Jeffrey Banks, Randy Johnson, Roderick Jones, Ron

14 Thompson, Curtis Howard, Keith Brown, Jesus Chanez, David Suazo, Nico Kelley, Carlos Rasool,

15 Billy Taylor, Lorance Wilder, Manual Encinas, Vincent Marrazzo, William Adams, and Albert Lee

16 Vassar.

17

B. Employment References

18

Defendants have designated The Work Number to provide standard references for each of the

19 Identified Claimants in this Action (“Reference Designee”). Within sixty (60) days of the Effective

20 Date, Defendants shall ensure The Work Number is available for use by the Identified Claimants.

21 The reference shall be limited to the Identified Claimants’ most recent dates of employment, last job

22 held, and ending rate of pay.

23

If any change will be made to the Reference Designee, Defendants shall notify the EEOC in

24 writing no later than ten (10) days before the proposed change goes into effect. Defendants shall not

25 be considered in automatic violation of this Consent Decree if the Identified Claimants do not refer

26 prospective employers to the Reference Designee.

27

28 7

1

X.

2

GENERAL RELIEF

3

A. Non-Discrimination

4

During the term of this Consent Decree, Defendants, their officers, directors, agents,

5 successors and assigns, and all managerial and non-managerial employees hereby agree to abide by

6 the ADEA and refrain from discriminating against persons on the basis of age (over 40) in hiring

7 decisions, termination decisions, performance evaluations, transfers, demotions, promotions, any and

8 all terms and conditions of employment, and harassment based on age, which is a form of age

9 discrimination under the ADEA.

10

B. Retaliation

11

During the term of this Consent Decree, Defendants, their officers, directors, agents,

12 successors and assigns, and all managerial and non-managerial employees hereby agree to abide by

13 the ADEA and refrain from implementing or permitting any action, policy or practice with the

14 purpose or effect of retaliating against any current or former employee or applicant, because he or

15 she has in the past or during the term of this Decree:

16

1. Opposed any practice made unlawful under the ADEA;

17

2. Filed a charge of discrimination alleging such practice;

18

3. Participated in any manner in an internal or external investigation or proceeding

19

relating to this case or any claim of a violation of the ADEA;

20

4. Was identified as a possible witness or claimant in this Action, any investigations,

21

and/or proceedings relating to this case or any claim of a violation of the ADEA;

22

5. Asserted any right under this Decree; or

23

6. Sought and/or received any relief in accordance with this Decree.

24

XI.

25

SPECIFIC INJUNCTIVE RELIEF

26

A. Equal Employment Opportunity Compliance Officer

27

Andy Martin, Defendants’ Vice President, Human Resources of the West Region has been

28 designated as the Equal Employment Opportunity Compliance Officer (“Compliance Officer”) to 8

1 monitor Defendants’ compliance with the ADEA and the provisions of this Decree. The

2 Compliance Officer is to oversee Defendants’ compliance with the ADEA and this Decree as

3 follows:

4

1. Conduct audits and provide reports to the EEOC as described in infra §XI(B)

5 of Defendants’ facilities identified in this Decree to ensure that all policies, procedures, and practices 6 are free of age discrimination;1

7

2. Ensure employees are provided equal employment opportunities based on age

8 by reviewing selected individual employment decisions at the facilities identified in this Decree;

9

3. Review, implement and/or develop (if necessary) procedures and practices to

10 ensure accurate document maintenance in personnel files, payroll data, attendance records and other

11 documents that affect hiring, involuntary termination, transfer, and promotion decisions;

12

4. Review, implement and/or develop (if necessary) procedures and practices to

13 ensure the complete, accurate, and timely documentation of hiring, involuntary termination, transfer,

14 and promotion decisions including documentation of the identity of those participating in the

15 decision making, the identity of the ultimate decision-maker, a description of the ultimate decision

16 made, and a description of the rationale for the ultimate decision made;

17

5. Review, implement and/or develop (if necessary) procedures and practices for

18 receiving, documenting, and responding to oral and written complaints of age discrimination;

19

6. Create, maintain, update, and distribute an updated list of Defendants’ Human

20 Resources personnel, the AWARE line, and other officials designated by Defendants to receive and

21 respond to complaints of age discrimination;

22

7. Monitor and ensure that all complaints of age discrimination are properly

23 investigated and that a proper response is adopted to effectively address the complaint in light of the

24 determination of the investigation and in keeping with the ADEA’s goal of preventing and correcting

25 behavior that is found to require such action;

26 1 By definition, any further reference in §XI and thereafter to “age discrimination” will be
27 understood to include harassment based on age and retaliation following a complaint of discrimination or harassment because of age.
28
9

1

8. Review, implement and/or develop (if necessary) procedures to ensure proper

2 communication with complainants regarding the complaint procedure, status of the

3 complaint/investigation, and the results of the investigation;

4

9. Review, implement and/or develop a centralized system of tracking

5 complaints of age discrimination;

6

10. Implement training for Defendants’ employees on their rights and

7 responsibilities under the ADEA including, but not limited to supervisors’ responsibilities toward

8 providing a workplace free of unlawful discrimination, Defendants’ policies and procedures, and any

9 relevant obligations under this Decree;

10

11. Ensure the application of appropriate and consistent counseling, training,

11 and/or discipline to hold employees and managers accountable for failing to take appropriate action

12 against and/or for engaging in conduct prohibited by the ADEA, Defendants’ internal policies and

13 procedures against age discrimination, and under this Decree;

14

12. Review, implement, and/or develop procedures and practices pertaining to

15 supervisor performance reviews and adopt a review category regarding supervisors’ compliance with

16 Defendants’ internal policies, procedures, and practices against age discrimination;

17

13. Ensure compliance with the terms of this Decree; and

18

14. Ensure that all reports required by this Decree are accurately compiled and

19 timely submitted.

20

B. Compliance Officer’s Audits

21

Within 120 days of the Effective Date, the Compliance Officer shall complete a baseline

22 audit of Defendants’ existing employment procedures and practices to identify any potential age

23 discrimination in hiring, involuntary terminations, promotions and transfers.

24

Within sixty (60) days of completing the baseline audit, the Compliance Officer shall prepare

25 and provide to the EEOC the baseline audit report referenced in §XI(H)1 below.

26

Throughout the term of this Decree, the Compliance Officer shall monitor the effectiveness

27 of Defendants’ policies, procedures, and practices for hiring, involuntary terminations, promotions

28 and transfers to ensure that Defendants’ employment actions do not result in age discrimination. 10

1

Specifically, the Compliance Officer’s baseline and annual audits shall include a review of

2 the following actions and he shall develop, modify, and/or implement, where necessary, standardized

3 procedures to prevent age discrimination in:

4

1. recruiting, interviewing, screening, and hiring applicants for employment,

5 including ensuring that openings are publicized to a wide pool of applicants and that all qualified

6 applicants are given an equal opportunity to be selected for the open positions;

7

2. assigning employees to work in a manner that provides equal opportunities for

8 advancement in employment;

9

3. internal promotions and/or transfers to vacant positions, including ensuring

10 that openings are publicized to a wide pool of internal applicants, that all qualified internal

11 applicants are given an equal opportunity to be selected for the open positions, and compiling a list

12 of qualified internal applicants and selectees by age;

13

4. involuntary terminations including reductions in force; and

14

5. workers’ compensation by sending a reminder notification to Defendants’

15 workers’ compensation administrators and doctors stating that workers’ compensation proceedings

16 cannot be used as a way to unlawfully eliminate older workers from the workforce and that they

17 need to make efforts to ensure that analysis of workers’ compensation claims and benefits are treated

18 in a manner that does not discriminate on the basis of age.

19

After the baseline audit, the Compliance Officer shall conduct annual audits consisting of site

20 visits to the various locations subject to the Decree to monitor and ensure that Defendants’ policies,

21 procedures, and practices are free from age discrimination.

22

If at any time the Compliance Officer’s recommendations to correct Defendants’ policies,

23 practices, and/or procedures are not followed, the Compliance Officer shall notify the EEOC in

24 writing within ten (10) days of notice that such recommendations will not be followed.

25

C. Defendants’ Policy Against Discrimination and Complaint Procedures

26

Within ninety (90) days of the Effective Date, Defendants shall ensure that the Non-

27 Discrimination and Equal Employment Opportunity Policy (“the Policy”) has been distributed to

28 each of Defendants’ managerial and non-managerial employees employed at Defendants’ facilities 11

1 identified in §II of this Decree. If Defendants implement any revised version(s) of this policy during

2 the term of this Consent Decree, Defendants shall provide a copy to the EEOC at least thirty (30)

3 days prior to the distribution of the revisions. The Policy is the same policy currently in effect

4 company-wide and any changed/revised Policy will be posted in Defendant’s work locations and on

5 Republic’s Intranet.

6

Within 180 days of the Effective Date, Defendants shall provide the EEOC as part of the

7 baseline audit report a statement confirming distribution of the Policy. During the Decree term, for

8 each new managerial or non-managerial employee of Defendants hired after the initial distribution of

9 the Policy described above, Defendants shall ensure that the new employee and/or manager receives

10 the Policy within thirty (30) days of their actual starting date of employment.

11

Throughout the Decree term, Defendants shall ensure that their policies and/or notices

12 continue to provide:

13

1. Assurance that Defendants will take prompt and appropriate corrective action

14 when it determines that discrimination, harassment, and/or retaliation has occurred;

15

2. Assurance that Defendants will investigate all complaints of discrimination,

16 harassment, and/or retaliation and inform complainants regarding the results of the investigation;

17

3. A notice identifying the name, job title, and telephone numbers of all avenues

18 of reporting complaints of discrimination and/or retaliation;

19

4. A clear statement of the procedures for making complaints pertaining to

20 discrimination and/or retaliation; and

21

5. A clear explanation whereby supervisory employees, managerial employees,

22 and employees in any Human Resources Department will be held accountable for Defendants’

23 efforts to prevent and/or correct discrimination, harassment, and/or retaliation.

24

D. Performance Evaluation For EEO Compliance

25

Within 120 days from the Effective Date, Defendants shall develop, incorporate, and/or

26 implement into its performance evaluation system a criteria for addressing EEO compliance by its

27 supervisors and managers at the facilities identified at §II.

28 12

1

E. Training

2

1. Training on Internal Non-Discrimination Policies and Procedures

3

As set forth in greater detail in §XI(E)3 below, within 180 days of the Effective Date,

4 Defendants shall complete live training for all of Defendants’ supervisors, managers, and human

5 resources managers regarding Defendants’ policy against age discrimination in hiring, job

6 assignments, discipline, terminations, promotions, transfers, and any other employment actions

7 under the ADEA. This training shall also include Defendants’ policy against retaliation. The

8 training shall include practical examples and specific instructions pertinent to each type of

9 employment action and be interactive.

10

During any subsequent year of the Decree, training regarding Defendants’ policies and

11 procedures against age discrimination and retaliation may be provided on-line or by video so long as

12 there is an interactive component. The Compliance Officer can require live training based on

13 particular areas and/or employees requiring additional training.

14

2. Training Materials

15

Within thirty (30) days of the Effective Date, Defendants shall provide the EEOC with a

16 copy of the training materials intended for the live supervisor, manager and human resources

17 manager training program described in supra §XI(E)1 and 3. The EEOC may provide comment on

18 the training within thirty (30) days from receipt of the training statement and materials. Defendants

19 may proceed with the proposed training if it does not receive any comment from the EEOC within

20 thirty (30) days of the EEOC’s receipt of the training statement and materials.

21

3. Supervisor, Manager and Human Resources Training

22

Within 180 days of the Effective Date of this Decree, Defendants shall provide live training

23 of at least two hour duration to each of Defendants’ employees at or above the level of supervisor,

24 including Defendants’ human resources managers. The live training shall cover Defendants’

25 policies, procedures and practices against discrimination and federal laws regarding employment

26 discrimination on the basis of age and the specific responsibilities of supervisory and human

27 resources employees in assuring compliance with Defendants’ policies, procedures and practices

28 against age discrimination and the ADEA. The training shall provide concrete examples of 13

1 potentially discriminatory conduct and shall include but not be limited to examples of prohibited

2 conduct pertaining to hiring, job assignment, attendance, discipline, promotions, transfers, and/or

3 terminations. All persons required to attend such training shall verify their attendance in writing.

4

4. Training for Non-Supervisory Employees

5

Within 180 days of the Effective Date of this Decree, Defendants shall provide live training

6 of at least one hour duration to all of Defendants’ non-supervisory employees covering the

7 protections provided them against age discrimination as provided in Defendants’ policy and the

8 ADEA. The training shall include training on the policies, complaint procedures, and the avenues to

9 raise complaints or questions regarding potential discrimination and/or retaliation. The Compliance

10 Officer may require live training in particular areas and/or individuals as needed.

11

5. Notice of Training

12

Defendants shall notify the EEOC twenty (20) days prior to all live training so that it may be

13 attended by an EEOC representative. The EEOC shall notify Defendants within five (5) business

14 days of a training if an EEOC representative will be attending. Any EEOC representative that visits

15 Defendants’ Las Vegas facilities agrees to follow all of Defendants’ safety and security rules and

16 regulations while on Defendants’ premises to the extent such safety and security rules and

17 regulations are disclosed to the EEOC representative.

18

F. Record Keeping

19

Within sixty (60) days of the Effective Date, Defendants shall establish record-keeping

20 procedures that provide for the tracking of hiring, promotion, transfer and involuntary termination

21 decisions, complaints of age discrimination made to management, Human Resources or the AWARE

22 Line, and the monitoring of such decisions and complaints to prevent discrimination on the basis of

23 age.

24

Defendants shall continue and/or establish systems whereby the following documentation is

25 created and maintained pursuant to the afore-mentioned record-keeping procedures:

26

1. All documents generated in connection with any decision to hire, involuntarily

27 terminate, transfer, demote or promote any employee including documentation of the identity of

28 those participating in the decision making, the identity of the ultimate decision-maker, a description 14

1 of the ultimate decision made, and a description of the rationale for the ultimate decision made;

2

2. All documents generated in connection with any complaint of age

3 discrimination made to a member of management at or above the route supervisor level, or Human

4 Resources or to the AWARE Line, the investigation into such complaint and the resolution of the

5 complaint, including the identities of the parties involved;

6

3. All documents contained in the official personnel file for that employee;

7

4. All forms acknowledging any employee or manager’s receipt of the Policy

8 shall be maintained in the employee’s official personnel file (be that a paper or electronic file);

9

5. All documents verifying the occurrence of all training sessions and names of

10 all attendees for each session required under this Decree shall be maintained in the employee’s

11 official personnel file or tracked in a separate database or file that is accurately maintained; and

12

6. All Compliance Officer reports to the EEOC and any accompanying

13 documentation upon which the reports are based.

14

7. All non-privileged documents pertaining to the above record-keeping

15 requirements shall be provided to the EEOC within forty-five (45) days of receipt of a written

16 request from the EEOC for the particular category of documents, which request will identify the

17 potential problem or concern of the EEOC related to any particular category of documents so as to

18 assist Defendants in identifying the appropriate documents for production.

19

G. Posting

20

Within ten (10) business days of the Effective Date and throughout the term of the Decree,

21 Defendants shall post a notice of the terms of this Decree, in the form attached hereto as Exhibit A,

22 at each of Defendants’ facilities in a location where employees clock in/out or frequent for lunch or

23 breaks.

24

H. Reporting

25

1. Baseline Audit Report

26

Within one hundred eighty (180) days of the Effective Date, Defendants shall provide a

27 report from Defendants’ Compliance Officer confirming that:

28

a. Defendants have redistributed their Policy within ninety (90) days of

15

1 the Effective Date;

2

b. Going forward, Defendants’ performance evaluations for supervisors

3 and managers shall have a component that measures EEO compliance;

4

c. Defendants have completed or will complete all training required to be

5 completed within 180 days of the Effective Date;

6

d. Defendants have converted the termination codes of the Identified

7 Claimants described in §IX to voluntary terminations of employment;

8

e. Defendants have established and complied with the record keeping

9 procedure described in supra §XI(F);

10

f. Defendants have posted the notice described in supra §XI(G); and

11

g. Defendants have conducted a baseline audit. The description of the

12 baseline audit provided shall contain:

13

(1) the scope of the audit;

14

(2) any potential violations of Defendants’ internal policies,

15 procedures, and practices against age discrimination identified by the Compliance Officer as a result

16 of his review of the areas identified in §§ XI(A)(7) and XI(B)(1-5)and any remedial action taken,

17 including the names of the individuals alleging age discrimination, the nature of the age

18 discrimination alleged, the names of the alleged perpetrators, the dates of the allegations, a brief

19 summary of how each complaint was resolved, the identity of the person who investigated and/or

20 resolved each complaint, and an analysis of the investigation of complaints, including the monitoring

21 done for multiple complaints made against the same person. (If no results have been reached as of

22 the time of the report, the result shall be included in the next report.); and

23

(3) a summary of the results of the Compliance Officer’s reviews

24 of samples of randomly selected individual employment decisions and a description of any

25 corrective action taken where identified as necessary, including but not limited to a description of the

26 specific methodology utilized in the review of the samples.

27

2. Annual Report

28

At 12 months and 24 months after submission of the Baseline Report, Defendants’

16

1 Compliance Officer shall provide to the EEOC a follow-up report. The follow-up reports shall

2 contain:

3

a. A statement that all training sessions required under this Decree took

4 place;

5

b. A statement that the Compliance Officer has reviewed the summary of

6 age discrimination complaints and responses thereto described below;

7

c. A summary of all complaints of age discrimination against Defendants

8 received by a member of management at or above the route supervisor level, Human Resources, or

9 the AWARE Line and a description of Defendants’ response thereto including the names of the

10 individuals alleging age discrimination, the nature of the allegations, the names of the alleged

11 perpetrators, the dates of the allegations, a brief summary of how each complaint was resolved, the

12 identity of the person who investigated and/or resolved each complaint, and a review of the

13 complaints to determine if multiple complaints have been made against the same person. (If no

14 results have been reached as of the time of the report, the result shall be included in the next report.);

15

d. A summary of:

16

i) the status of document maintenance procedures regarding

17 personnel files, payroll data, attendance records and other documents that affect employment hiring,

18 involuntary termination, transfer, and promotion decisions such as hiring, involuntary termination,

19 transfers, and promotions;

20

ii) any changes to procedures and practices for receiving,

21 documenting, and responding to oral and written complaints of age discrimination;

22

iii) any changes to the list of Human Resources personnel, the

23 AWARE line, and other officials designated by Defendants to receive and respond to complaints of

24 age discrimination;

25

iv) any changes to the system of tracking complaints of age

26 discrimination;

27

v) any changes to training required under this Decree; and

28

e. Confirmation that the Compliance Officer conducted the review of

17

1 employment actions specified in §XI(B) and a description of any remedial action taken as a result of

2 the review.

3

XII.

4

COSTS OF ADMINISTRATION AND IMPLEMENTATION OF CONSENT DECREE

5

Defendants shall bear all costs associated with its administration and implementation of its

6 obligations under this Decree.

7

XIII.

8

COSTS AND ATTORNEYS’ FEES

9

Each party shall bear its own costs of suit and attorneys’ fees.

10

XIV.

11

MISCELLANEOUS PROVISIONS

12

A. During the term of this Decree, Defendants shall provide any successor-in-interest to

13 one or more of Defendants’ operations identified in Section II.A with a copy of this Decree

14 sufficiently prior to the closing of the sales transaction to provide reasonable notice of the Decree to

15 the successor-in-interest and shall simultaneously inform the EEOC of same.

16

B. During the term of this Decree, Defendants shall assure that each of its officers,

17 managers and supervisors is aware of any term(s) of this Decree which may be related to his/her job

18 duties.

19

C. Unless otherwise stated, all notices, reports and correspondence required under this

20 Decree shall be delivered to:

21

For the EEOC: Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity

22 Commission, 255 East Temple Street, 4th Floor, Los Angeles, CA, 90012; facsimile number (213)

23 894-1301. For Republic: Tim Benter, Vice President and Deputy General Counsel, Republic

24 Services, Inc., 18500 North Allied Way, Phoenix, AZ 85054.

25

D. The Parties agree to entry of this Decree and judgment subject to final approval by

26 the Court.

27

All parties, through the undersigned, respectfully apply for entry of this Consent Decree

28 Order. 18

September 21, 2010

1

NOTICE TO ALL EMPLOYEES

2 This Notice is being posted pursuant to a Consent Decree in U.S. Equal Employment Opportunity
Commission v. Republic Services, Inc., et al., Case No., CV-2:04-cv-1352-DAE-LRL settling a 3 lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”). The EEOC brought
4 suit in federal court alleging that Republic Services, Inc. and Republic Silver State Disposal, Inc. (collectively “Republic”) discriminated against certain employees on the basis of age by terminating
5 them and/or denying them transfers to other open positions. Republic denies these allegations. This lawsuit has been resolved by a Consent Decree mutually agreed to by Republic and the EEOC which
6 includes injunctive remedies and monitoring to ensure compliance with the Age Discrimination in
7 Employment Act.

8 Republic does not tolerate age discrimination or retaliation in the workplace. Both federal law and the Company’s policies prohibit discrimination based on race, color, religion, sex, national origin,
9 age, or disability. This means that a supervisor or manager cannot make decisions about hiring,
promotion, pay or other conditions of employment based on any of these protected categories. 10

11 If you are aware of any events, conduct or information you believe may indicate some improper discrimination, harassment, or retaliation, you may report improper conduct to any of the following:

12 (1) Your immediate supervisor;

13

(2) a management representative with whom you feel comfortable; (3) Your Area Human Resources Manager, Hank Vasquez (702-599-5504);

14

(4) Republic’s AWARE Line (1-866-3-AWARE-4 or 1-866-329-2734); or (5) the EEOC at 333 S. Las Vegas Blvd., Suite 8112, Las Vegas, NV 89101, (702)388-5099.

15 Retaliation is a serious violation of Company policy and federal law and should be reported
16 immediately to your Area Human Resources Manager (702-599-5504), your Regional Vice President of Human Resources Andy Martin (925-201-5813), a Corporate Human Resources
17 Manager (480-627-2700), the AWARE Line or to the EEOC.

18 The EEOC is the federal government agency that enforces the federal laws against discrimination in 19 employment on the basis of age, disability, race, color, religion, national origin, sex, and pregnancy.

20 THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

21 This Notice must remain posted for three (3) years from the date below and must not be

22

altered, defaced or covered by any other material. Any questions about this Notice or compliance with its terms may be directed to: EEOC, 255 East Temple Street, 4th Floor, Los

23 Angeles, CA 90012.

24 25 ___________________________, 2010

26

27

28 20

 
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CM/ECF - nvd - District Version 6.1
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:04-cv-01352-DAE-LRL

CLOSED,ENE

U.S. Equal Employment Opportunity Commission v. Republic Services, Inc. Assigned to: Judge David A. Ezra Referred to: Magistrate Judge Lawrence R. Leavitt
Magistrate Judge George Foley, Jr (Settlement) Cause: 29:621 Job Discrimination (Age)

Date Filed: 09/29/2004 Date Terminated: 09/21/2010 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
U.S. Equal Employment Opportunity Commission

represented by Anna Park U.S. Equal Employment Opportunity Commission 255 East Temple Street 4th Floor Los Angeles, CA 90012213-894-1083 Email: anna.park@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Connie Liem U.S. Equal Employment Opportunity Commission Legal Unit 555 West Beech, Ste 504 San Diego, CA 92101 619 557-7282 Fax: 619 557-7274 Email: connie.liem@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sue J. Noh United States Equal Employment Opportunity Commission Legal Unit 255 East Temple Street 4th Floor Los Angeles, CA 90012(213) 894-1082 Fax: 213-894-1118 Email: sue.noh@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nvd.uscourts.gov/cgi-bin/DktRpt.pl?112613799656245-L_1_1-1

Thomas S. Lepak U.S. Equal Employment Opportunity
1/36

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Plaintiff Robert LaRocca Plaintiff William Lacy

CM/ECF - nvd - District Version 6.1
Commission 255 E. Temple Street, 4th Floor Los Angeles, CA 90012 (213) 894-1032 Fax: (213) 894-1301 Email: Thomas.Lepak@EEOC.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela D Morrison Nevada Immigrant Resource Project William S Boyd School of Law, Thomas & Mack Legal Clinic 4505 Maryland Parkway Box 451082 Las Vegas, NV 89154-1082 702-895-2082 Fax: 702-895-2081 Email: angela.morrison@eeoc.gov ATTORNEY TO BE NOTICED
Karen E. Nutter U.S. Equal Employment Opportunity Commission 255 E. Temple Street Los Angeles, CA 90012 (213) 894-1716 Email: karen.nutter@eeoc.gov ATTORNEY TO BE NOTICED
represented by Scott B. Olifant Scott B Olifant, Law Ofﬁce Of 5520 Sharpsburg Avenue Las Vegas, NV 89141 (702) 804-4190 Email: solifant@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott B. Olifant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Defendant

Republic Services, Inc.

represented by Bruce C Young Littler Mendelson, PC 3960 Howard Hughes Parkway Suite 300

https://ecf.nvd.uscourts.gov/cgi-bin/DktRpt.pl?112613799656245-L_1_1-1

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6/8/2017

CM/ECF - nvd - District Version 6.1
Las Vegas, NV 89169-5937 702-862-8800 Fax: 702-862-8811 Email: byoung@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew G. Laﬂin Littler Mendelson, PC 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169-5937 702-862-8800 Fax: 702-862-8811 Email: mlaﬂin@littler.com ATTORNEY TO BE NOTICED

Roger L Grandgenett Littler Mendelson, PC 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169 Email: rgrandgenett@littler.com ATTORNEY TO BE NOTICED

Defendant Republic Silver State Disposal, Inc.

Wesley C Shelton Littler Mendelson 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169 702-862-8800 Fax: 702-862-8811 Email: wshelton@littler.com ATTORNEY TO BE NOTICED
represented by Bruce C Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick H. Hicks Littler Mendelson, PC 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89109 Email: phicks@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nvd.uscourts.gov/cgi-bin/DktRpt.pl?112613799656245-L_1_1-1

Roger L Grandgenett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
3/36

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Interested Party Emmanuel Washington

CM/ECF - nvd - District Version 6.1
Matthew G. Laﬂin (See above for address) ATTORNEY TO BE NOTICED
Wesley C Shelton (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Beasley Beasley Law Group 1872 Shy Albatross Avenue North Las Vegas, NV 89084 702-483-6800 Fax: 702-998-6534 Email: matthew@beasleylawgrouplv.com (Inactive) ATTORNEY TO BE NOTICED

Date Filed 09/30/2004 09/30/2004 11/22/2004 12/13/2004
12/13/2004 12/17/2004
01/21/2005 01/25/2005
01/25/2005
02/03/2005
02/14/2005 04/22/2005
08/30/2005 09/23/2005
09/27/2005

# Docket Text
1 COMPLAINT by Plf w/jy dmd. (Entered: 10/07/2004)
SUMMONS ISSUED (1) as to Dft. (Entered: 10/07/2004)
2 AMENDED COMPLAINT by Plf w/jy dmd. (Entered: 11/30/2004)
3 SUMMONS RETURNED EXECUTED upon Dft Republic Svcs on 11/22/04. (Entered: 12/21/2004)
4 ANSWER TO COMPLAINT by Dft Republic Silver State. (s) (Entered: 12/21/2004)
5 CERTIFICATE OF INTERESTED PARTIES by Dft Republic Silver State. (s) (Entered: 12/21/2004)
MISCELLANEOUS DOCUMENT Disc plan/sched order. (LRL) (Entered: 01/21/2005)
6 ORDER ON STIPULATION Disc cut-off 12/30/05; interim status report 10/31/05; dispo mtns 1/30/06; jnt pto 3/1/06. (cps dist) (Entered: 01/25/2005)
7 NOTICE (OTHER) Referral to ENE program. Mag Judge Johnston will be the evaluating Judge. (cps dist) (Entered: 01/25/2005)
8 SCHEDULING ORDER that ENE session is sched for 4/20/05 @ 8:30 am. (cps dist) (Entered: 02/03/2005)
9 ANSWER TO COMPLAINT Answr to amnd'd cmplt obo Ds. (m) (Entered: 02/15/2005)
10 ORDER ORD: The ptys met for an ENE session, however no sttlmnt was reached. cps dis (Entered: 04/22/2005)
11 MOTION TO COMPEL by Dfts. (s)DISPO: reply #12 (Entered: 09/06/2005)
12 REPLY TO RESPONSE TO MOTION by Dft to mtn to compel (#11). (s) (Entered: 09/27/2005)
13 ORDER that Dft's mtn to compel (#11) is granted. Plfs have until 10/31/05 to pay Dft

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$500 for fees/costs. (cps dist) (Entered: 09/28/2005)
14 ORDER that Dft's mtn to compel (#11) is granted. Pltfs resp to Dfts disc due nlt 10/14/05. Plfs have until 10/31/05 to pay Dft $500 for fees/costs. (cps dist) (Entered: 10/11/2005)
15 STATUS REPORT by Dfts. (s) (Entered: 11/02/2005)
18 INTERIM STATUS REPORT by Plaintiff U.S. Equal Employment Opportunity Commission. (MJZ ) (Entered: 12/02/2005)
16 STIPULATION to extend discovery by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc., Plaintiff U.S. Equal Employment Opportunity Commission. (GEW) (Entered: 11/17/2005)
17 ORDER ON STIPULATION re 16 Stipulation. IT IS HEREBY ORDERED the Stipulation To Extend Discovery Cutoff is approved. Discovery and other deadlines as described in the stipulation shall be extended for ninety (90) days. Signed by Judge Lawrence R. Leavitt on 11/29/05. (KXG, ) (Entered: 11/29/2005)
Set/Reset Deadlines: Discovery due by 3/31/2006. Motions due by 5/1/2006. Proposed Joint Pretrial Order due by 5/31/2006. (KXG, ) (Entered: 11/30/2005)
19 STATUS REPORT Interim by Plaintiff U.S. Equal Employment Opportunity Commission. (Viramontes, Victor) (Entered: 02/08/2006)
20 STIPULATION AND ORDER EXTENDING DISCOVERY DEADLINE [Second Request] by Plaintiffs Robert LaRocca, William Lacy, U.S. Equal Employment Opportunity Commission, Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 03/09/2006)
21 ORDER ON STIPULATION re 20 Stipulation,. Discovery due by 6/28/2006. Joint Interim Status Report due by 5/1/2006. Motions due by 7/28/2006. Signed by Judge Lawrence R. Leavitt on 3/14/06. (MAJ) (Entered: 03/15/2006)
22 NOTICE of Trial Setting: Jury Trial set for 12/5/2006 at 09:00 AM in LV Courtroom 4B before Judge Howard D. McKibben. Proposed Joint Pretrial Order due by 9/15/2006. This action is referred to the Honorable Lawrence R. Leavitt, U. S. Magistrate Judge, to conduct a Settlement Conference.(no image attached)(BS, ) (Entered: 03/30/2006)
23 ORDER Scheduling a Settlement Conference. Settlement Conference set for 6/21/2006 09:30 AM before Magistrate Judge Lawrence R. Leavitt. Signed by Judge Lawrence R. Leavitt on 3/31/06. (MJZ) (Entered: 03/31/2006)
24 First MOTION to Continue Discovery Deadline by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 5/6/2006. (Noh, Sue) (Entered: 04/18/2006)
25 STATUS REPORT Interim Status Report # 4 by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 05/01/2006)
26 STATUS REPORT by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 05/01/2006)
27 ERRATA to 24 First MOTION to Continue Discovery Deadline; Notice of Errata ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 05/03/2006)
28 MOTION to Compel Discovery Responses and Request for Sanctions by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 5/22/2006. (Attachments: # 1 Exhibit Ex. 1 - Meet & Confer Correspondence# 2 Exhibit Ex. 2 Termination Chart# 3 Exhibit Ex. 3 - Hines Deposition# 4 Exhibit Ex. 4 - Benford

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Deposition# 5 Exhibit Ex. 5# 6 Exhibit Ex. 6# 7 Exhibit Ex. 7# 8 Exhibit Ex. 8# 9 Exhibit Ex. 9 Part 1# 10 Exhibit Ex. 9 Part 2# 11 Exhibit Ex. 9 Part 3# 12 Exhibit Ex. 10# 13 Exhibit Ex. 11# 14 Exhibit Ex. 12# 15 Exhibit Ex. 13# 16 Exhibit Ex. 14# 17 Exhibit Ex. 15# 18 Exhibit Ex. 16# 19 Exhibit Ex. 17# 20 Exhibit Ex. 18# 21 Exhibit Ex. 19# 22 Exhibit Ex. 20)(Noh, Sue) (Entered: 05/04/2006)

05/05/2006

29 NON-OPPOSITION to 24 First MOTION to Continue Discovery Deadline; ﬁled by Plaintiff Robert LaRocca. and Wm. Lacy (Olifant, Scott) (Entered: 05/05/2006)

05/05/2006

30 NOTICE by Plaintiff U.S. Equal Employment Opportunity Commission re 28 MOTION to Compel Discovery Responses and Request for Sanctions. Proof of Service Via CM/ECF (Noh, Sue) (Entered: 05/05/2006)

05/05/2006

31 SCHEDULING ORDER. Discovery due by 9/26/2006. Motions due by 10/25/2006. Proposed Joint Pretrial Order due by 11/28/2006. Experts due by 7/28/06. Rebuttal Experts due by 8/28/06. Status Report due by 7/28/06. Signed by Judge Lawrence R. Leavitt on 5/5/06. (AAB) (Entered: 05/05/2006)

05/08/2006

32 RESPONSE to 24 First MOTION to Continue Discovery Deadline; ﬁled by Defendant Republic Silver State Disposal, Inc.. OPPOSITION TO PLAINTIFF EEOC'S MOTION TO EXTEND DISCOVERY DEADLINE (Laﬂin, Matthew) (Entered: 05/08/2006)

05/08/2006

33 DECLARATION of MATTHEW G. LAFLIN re 32 Response to Motion for Extension of Time; IN SUPPORT OF DEFENDANTS' OPPOSITION TO EEOC'S MOTION TO EXTEND DISCOVERY DEADLINE [Third Request] by Defendant Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2 - Part 1 of 2# 3 Exhibit 2 - part 2 of 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8)(Laﬂin, Matthew) (Entered: 05/08/2006)

05/11/2006

34 REPLY to Response to 24 First MOTION to Continue Discovery Deadline; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Declaration of Sue J. Noh (Attachments: # 1 Exhibit 1)(Noh, Sue) (Entered: 05/11/2006)

05/12/2006

35 MINUTE ORDER IN CHAMBERS of the Honorable Lawrence R. Leavitt, U.S. Magistrate Judge on 5/12/2006. RE: 31 Scheduling Order, dated May 5, 2006 is VACATED. (no image attached) (MBS, ) (Entered: 05/12/2006)

05/22/2006

36 RESPONSE to 28 MOTION to Compel Discovery Responses and Request for Sanctions; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. OPPOSITION TO PLAINTIFF EEOC'S MOTION TO COMPEL AND REQUEST FOR SANCTIONS Replies due by 6/5/2006. (Laﬂin, Matthew) (Entered: 05/22/2006)

05/22/2006

37 DECLARATION of MATTHEW G. LAFLIN re 36 Response to Motion to Compel, ; in SUPPORT OF DEFENDANT'S OPPOSITION TO EEOC'S MOTION TO COMPEL AND REQUEST FOR SANCTIONS by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Laﬂin, Matthew) (Entered: 05/22/2006)

05/24/2006

38 MOTION for Summary Judgment by Defendant Republic Services, Inc.. Responses due by 6/11/2006. (Attachments: # 1 Exhibit 1 - 3# 2 Exhibit 4-5# 3 Exhibit 6-7# 4 Declaration Declaration and exh 8# 5 Exhibit exh 9-10)(Laﬂin, Matthew) (Entered: 05/24/2006)

05/25/2006

39 ERRATA to 38 MOTION for Summary Judgment; ﬁled by Defendant Republic Services, Inc.. (Attachments: # 1 Exhibit 1 - Redacted# 2 Exhibit 2 - Redacted)(Laﬂin, Matthew) (Entered: 05/25/2006)

05/25/2006

NOTICE of Docket Correction to 38 MOTION for Summary Judgment: Attachment #1 (Exhibits 1-3) placed under seal per 39 Errata. Counsel to re-ﬁle unsealed exhibit 3. (no image attached)(AF) (Entered: 05/25/2006)

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40 ERRATA to 38 MOTION for Summary Judgment; SECOND ERRATA AS TO EXHIBIT 3 ONLY ﬁled by Defendant Republic Services, Inc.. (Laﬂin, Matthew) (Entered: 05/25/2006)

05/30/2006

41 ERRATA to 28 MOTION to Compel Discovery Responses and Request for Sanctions; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1) (Noh, Sue) (Entered: 05/30/2006)

05/31/2006

42 ORDER re 24 First MOTION to Continue Discovery Deadline ﬁled by U.S. Equal Employment Opportunity Commission. SCHEDULING ORDER. Discovery due by 9/26/2006. Motions due by 10/25/2006. Proposed Joint Pretrial Order due by 11/28/2006. Signed by Judge Lawrence R. Leavitt on 5/30/06. (AXM) (Entered: 05/31/2006)

06/02/2006

43 ERROR: Wrong event selected. Redocketed by Court. Modiﬁed on 6/5/2006 (GEW). (Entered: 06/02/2006)

06/02/2006

NOTICE of Docket Correction to 43 Notice (Other): Wrong event selected. Redocketed by Court. Email sent to attorney. (no image attached)(GEW) (Entered: 06/05/2006)

06/05/2006

44 STIPULATION re brieﬁng schedulre for defendants' motion for Summary Judgment by Plaintiff U.S. Equal Employment Opportunity Commission. (GEW) (Entered: 06/05/2006)

06/05/2006

45 ORDER ON STIPULATION re 44 Stipulation for Extension of Time. Responses due by 7/31/2006. Signed by Judge Howard D. McKibben on 6/5/06. (AAB) (Entered: 06/05/2006)

06/05/2006

46 REPLY to Response to 28 MOTION to Compel Discovery Responses and Request for Sanctions; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 22# 2 Exhibit 23# 3 Exhibit 24)(Noh, Sue) (Entered: 06/05/2006)

06/13/2006

47 STIPULATION AND ORDER RESCHEDULING SETTLEMENT CONFERENCE by Plaintiffs Robert LaRocca, William Lacy, U.S. Equal Employment Opportunity Commission, Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Laﬂin, Matthew) (Entered: 06/13/2006)

06/15/2006

48 ORDER ON STIPULATION re 47 Stipulation Rescheduling Settlement Conference. Settlement Conference set for 10/25/2006 09:30 AM before Magistrate Judge Lawrence R. Leavitt. Signed by Judge Lawrence R. Leavitt on 6/15/06. (MJZ) (Entered: 06/16/2006)

07/12/2006

49 Submission of PROPOSED ORDER ﬁled by Plaintiff Robert LaRocca. Stipulation of Counsel re: expert designation date (Olifant, Scott) (Entered: 07/12/2006)

07/18/2006

50 STIPULATION re 38 MOTION for Summary Judgment; SECOND STIPULUATION AND [PROPOSED] ORDER RE: BRIEFING SCHEDULE FOR DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 07/18/2006)

07/18/2006

51 ORDER for time to ﬁle expert disclosure. Signed by Judge Lawrence R. Leavitt on 7/18/06. (AXM) (Entered: 07/18/2006)

07/20/2006

52 ORDER ON STIPULATION re 50 Stipulation for time. Responses due by 8/31/2006. Signed by Judge Howard D. McKibben on 7/19/06. (AXM) (Entered: 07/20/2006)

07/25/2006

53 STATUS REPORT DEFENDANT'S INTERIM STATUS REPORT [FOURTH] by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 07/25/2006)

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54 STATUS REPORT Interim Status Report (Fifth) by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 07/27/2006)
55 EX PARTE MOTION TO COMPEL DEFENDANTS' RESPONSES TO DOCUMENT REQUEST SET 4 AND INTERROGATORY 13 AND FOR AN EXTENSION OF TIME FOR PLAINTIFFS TO DISCLOSE AN EXPERT UPON ANALYSIS OF THE COMPELLED DISCOVERY AND FOR SANCTIONS; DECLARATION OF SUE J. NOH; AND EXHIBITS by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 - 10)(Noh, Sue) (Entered: 08/01/2006)
56 MINUTE ORDER IN CHAMBERS of the Honorable Lawrence R. Leavitt, U.S. Magistrate Judge on 8/4/2006. RE: 55 EX PARTE MOTION TO COMPEL DEFENDANTS' RESPONSES TO DOCUMENT REQUEST SET 4 AND INTERROGATORY 13 AND FOR AN EXTENSION OF TIME FOR PLAINTIFFS TO DISCLOSE AN EXPERT UPON ANALYSIS OF THE COMPELLED DISCOVERY AND FOR SANCTIONS; DECLARATION OF SUE J. ﬁled by U.S. Equal Employment Opportunity Commission, ORDERED: Responses due by 8/17/2006, Replies due by 8/25/2006 for Emergency Motion 55 . FURTHER ORDERED: Deadline for Plaintiff's disclosure of an expert is STAYED pending resolution of the Emergency Motion. FURTHER ORDERED: A Telephonic hearing on Motion to Compel and Request for Sanctions 28 and Emergency Motion 55 set for 8/31/2006 02:00 PM before Judge Lawrence R. Leavitt. (RFJ) (Entered: 08/08/2006)
57 RESPONSE to 55 EX PARTE MOTION TO COMPEL DEFENDANTS' RESPONSES TO DOCUMENT REQUEST SET 4 AND INTERROGATORY 13 AND FOR AN EXTENSION OF TIME FOR PLAINTIFFS TO DISCLOSE AN EXPERT UPON ANALYSIS OF THE COMPELLED DISCOVERY AND FOR SANCTIONS; DECLARATION OF SUE J.; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Replies due by 8/31/2006. (Attachments: # 1 Declaration Matthew G. Laﬂin, Esq.# 2 Exhibit A-J) (Laﬂin, Matthew) (Entered: 08/17/2006)
58 REPLY to Response to 55 EX PARTE MOTION TO COMPEL DEFENDANTS' RESPONSES TO DOCUMENT REQUEST SET 4 AND INTERROGATORY 13 AND FOR AN EXTENSION OF TIME FOR PLAINTIFFS TO DISCLOSE AN EXPERT UPON ANALYSIS OF THE COMPELLED DISCOVERY AND FOR SANCTIONS; DECLARATION OF SUE J.; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 - 11)(Noh, Sue) (Entered: 08/25/2006)
59 MINUTE ORDER IN CHAMBERS of the Honorable Lawrence R. Leavitt, U.S. Magistrate Judge on 8/28/2006. PLEASE TAKE NOTICE that the hearing presently scheduled for 2:00 p.m. on Thursday, August 31, 2006 is hereby vacated and rescheduled for 10:00 A.M. on MONDAY, SEPTEMBER 18, 2006. (no image attached) (CAP, ) (Entered: 08/28/2006)
60 RESPONSE to 38 MOTION for Summary Judgment; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 9/14/2006. (Noh, Sue) (Entered: 08/31/2006)
61 DECLARATION of Angela D. Morrison re 38 MOTION for Summary Judgment; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1-4# 2 Exhibit 5# 3 Exhibit 6-9# 4 Exhibit 10# 5 Exhibit 11-16# 6 Exhibit 17-18# 7 Exhibit 19-24)(Noh, Sue) (Entered: 08/31/2006)
62 RESPONSE to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. Replies due by 9/14/2006. (Attachments: # 1 Exhibit exhibit #1)(Olifant, Scott) (Entered: 08/31/2006)

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63 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #2# 2 Exhibit eshibit 2 (continued))(Olifant, Scott) Modiﬁed on 9/1/2006 to correct entry (GEW). (Entered: 08/31/2006)
64 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #3)(Olifant, Scott) Modiﬁed on 9/1/2006 to correct entry (GEW). (Entered: 08/31/2006)
65 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. Attachments: # 1 Exhibit exhibit #4)(Olifant, Scott) Modiﬁed on 9/1/2006 to correct entry (GEW). (Entered: 09/01/2006)
66 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #4 continued)(Olifant, Scott) Modiﬁed on 9/1/2006 to correct entry (GEW). (Entered: 09/01/2006)
67 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #4 continued)(Olifant, Scott) Modiﬁed on 9/1/2006 to correct entry (GEW). (Entered: 09/01/2006)
68 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #4 (end))(Olifant, Scott) Modiﬁed on 9/1/2006 to correct entry (GEW). (Entered: 09/01/2006)
69 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #5)(Olifant, Scott) Modiﬁed on 9/1/2006 to correct entry (GEW). (Entered: 09/01/2006)
70 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #6)(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)
71 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #6 continued)(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)
72 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #6 (end))(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)
73 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #7)(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)
74 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit7 (Continued))(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)
75 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit 7 (end))(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)
76 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #8)(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)
77 EXHIBITS to 38 MOTION for Summary Judgment; ﬁled by Plaintiff Robert LaRocca. (Attachments: # 1 Exhibit exhibit #* (end))(Olifant, Scott) Modiﬁed on 9/5/2006 to correct entry (GEW). (Entered: 09/01/2006)

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NOTICE of Docket Correction to 69 Response to Motion for Summary Judgment, 68 Response to Motion for Summary Judgment, 77 Response to Motion for Summary Judgment, 63 Response to Motion for Summary Judgment, 76 Response to Motion for Summary Judgment, 72 Response to Motion for Summary Judgment, 64 Response to Motion for Summary Judgment, 74 Response to Motion for Summary Judgment, 75 Response to Motion for Summary Judgment, 65 Response to Motion for Summary Judgment, 67 Response to Motion for Summary Judgment, 70 Response to Motion for Summary Judgment, 71 Response to Motion to Substitute Party, 73 Response to Motion for Summary Judgment, 66 Response to Motion for Summary Judgment: Documents were ﬁled using the wrong event. Entries were changed to reﬂect the correct event. Reply dates were terminated. (no image attached)(GEW) (Entered: 09/05/2006)
78 MOTION to Extend Time regarding discovery/non dispositive matter Extend Discovery by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Declaration Matthew G. Laﬂin, Esq.# 2 Exhibit "A" to "D")(Laﬂin, Matthew) (Entered: 09/06/2006)
79 MOTION for Leave to File Excess Pages to Republic Services, Inc.'s Reply in Support of its Motion for Summary Judgment by Defendant Republic Services, Inc.. (Attachments: # 1 Def's Reply in Support of its Motion for Summary Judgment# 2 Declaration of Matthew Laﬂin in Support of Def's Reply with Exhs A & B# 3 Exhibit C part 1 of 2# 4 Exhibit C part 2 of 2# 5 Exhibit D)(Laﬂin, Matthew) (Entered: 09/15/2006)
80 MINUTES OF PROCEEDINGS - Motion Hearing held on 9/18/2006 before Judge Lawrence R. Leavitt. Crtrm Administrator: Alana Kamaka; Pla Counsel: Sue J. Noh and Angela Morrison (for U.S.EEOC) and Scott B. Olifant (for Robert LaRocca and William Lacy); Def Counsel: Bruce C. Young and Matthew G. Laﬂin; Court Reporter/FTR #: 10:14-11:45; Time of Hearing: 10:00 a.m.. RE: 55 EX PARTE MOTION TO COMPEL DEFENDANTS' RESPONSES TO DOCUMENT REQUEST SET 4 AND INTERROGATORY 13 AND FOR AN EXTENSION OF TIME FOR PLAINTIFFS TO DISCLOSE AN EXPERT UPON ANALYSIS OF THE COMPELLED DISCOVERY AND FOR SANCTIONS; DECLARATION OF SUE J. NOH ﬁled by U.S. Equal Employment Opportunity Commission. 28 MOTION to Compel Discovery Responses and Request for Sanctions ﬁled by U.S. Equal Employment Opportunity Commission. Bruce C. Young and Matthew G. Laﬂin, counsel for defendant, are present via telephonic conference call. Court discusses the matter of counsel being present in court and not telephonically. Court confers with and hears representations of counsel regarding matters before the Court. COURT TAKES THE MATTER UNDER ADVISEMENT AND WILL ISSUE A SEPARATE WRITTEN ORDER.(no image attached) (AKK ) (Entered: 09/18/2006)
81 NOTICE by Plaintiff U.S. Equal Employment Opportunity Commission re 80 Motion Hearing,,,,. Request for Judicial Notice Regarding September 18, 2006 Hearing on EEOC's Motions to Compel (Docket Nos. 28, 55 & 80) (Attachments: # 1 Exhibit 1)(Noh, Sue) (Entered: 09/19/2006)
82 RESPONSE to 78 MOTION to Extend Time regarding discovery/non dispositive matter Extend Discovery; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 09/20/2006)
83 RESPONSE to 78 MOTION to Extend Time regarding discovery/non dispositive matter Extend Discovery; ﬁled by Plaintiff William Lacy. (and R. LaRocca incl. Declaration of Scott Olifant (Olifant, Scott) (Entered: 09/21/2006)
84 ORDER granting 79 Motion for Leave to File Excess Pages. Signed by Judge Howard D. McKibben on 9/20/06. (AXM) (Entered: 09/21/2006)
85 REPLY to Response to 38 MOTION for Summary Judgment; ﬁled by Defendants

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Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 # 2 # 3 # 4)(AXM) (Entered: 09/21/2006)
86 ORDER OF RECUSAL. This action is referred to Chief Judge Philip M. Pro for reassignment. Signed by Judge Robert J. Johnston on 9/26/2006. (MXS ) (Entered: 09/26/2006)
87 MOTION to Strike 85 Reply to Response to Motion for Summary Judgment Exhibits B & C Only by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 10/14/2006. (Attachments: # 1 Exhibit 1)(Morrison, Angela) (Entered: 09/26/2006)
88 ORDER granting 55 Ex Parte Motion for Sanctions, granting 28 Motion to Compel. Defendants shall pay the EEOC $2,280.00 in attorney's fees/costs. Signed by Judge Lawrence R. Leavitt on 9/26/06. (MJZ) (Entered: 09/27/2006)
89 ORDER granting 78 Motion to Extend Discovery. Discovery due by 1/26/2007. Motions due by 2/26/2007. Status Report due by 12/1/2006. Signed by Judge Lawrence R. Leavitt on 9/26/06. (MJZ) (Entered: 09/27/2006)
90 MINUTE ORDER IN CHAMBERS of the Honorable Philip M. Pro, Chief U.S. District Judge on 9/27/2006. By Deputy Clerk: V. Hayes. IT IS ORDERED that this case is reassigned to Magistrate Judge George W Foley, Jr for the purpose of ENE. Magistrate Judge Robert J. Johnston no longer assigned to case. Case number remains the same.(no image attached) (VHM, ) (Entered: 09/27/2006)
91 NOTICE re 22 Notice of Trial Setting. Pursuant to Order extending discovery and motion schedules 89 , the trial set for December 5, 2006 is vacated and will be reset upon submission of the proposed joint pretrial order by no later than March 28, 2007 or within ﬁfteen (15) days of ruling on any pending dispositive motions, whichever is later. (BS, ) (Entered: 10/02/2006)
92 ORDER denying as moot 87 Motion to Strike. Denying 38 Motion for Summary Judgment. Signed by Judge Howard D. McKibben on 10/2/06. (AXM) (Entered: 10/03/2006)
93 STIPULATION re 88 Order on Ex Parte Motion, Order on Motion to Compel; Protective Order re: Defendants' Responses to Document Request No. 1 of Set 4 Pursuant to Order Granting EEOC's Motions to Compel by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 10/04/2006)
94 MOTION to Compel PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO RESPOND TO DEFENDANT'S FIRST SET OF REQUESTS FOR ADMISSIONS AND SECOND SET OF INTERROGATORIES AND REQUEST FOR SANCTIONS by Defendant Republic Silver State Disposal, Inc.. Responses due by 10/27/2006. (Attachments: # 1 Declaration Matthew G. Laﬂin with Exhibits 1 & 2# 2 Exhibit 3 - 6# 3 Exhibit 7 - 10)(Laﬂin, Matthew) (Entered: 10/09/2006)
95 ORDER ON STIPULATION re 93 Stipulation, re 88 Order on Ex Parte Motion, Order on Motion to Compel; Protective Order re: Defendants' Responses to Document Request No. 1 of Set 4 Pursuant to Order Granting EEOC's Motions to Compel. Signed by Judge Lawrence R. Leavitt on 10/5/06. (AXM) (Entered: 10/10/2006)
96 TRANSCRIPT of Proceedings: 80 Motion Hearing held on 9/18/06 before Judge Lawrence R. Leavitt. Court Reporter: FTR. (no image attached) (EDS) (Entered: 10/16/2006)
97 ERROR: Document ﬁled incorrectly. Attorney reﬁled corrected document (see #98). Modiﬁed on 10/18/2006 (GEW). (Entered: 10/17/2006)

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NOTICE of Docket Correction to 97 Emergency EX PARTE MOTION FOR CONTINUANCE OF CONFIDENTIAL SETTLEMENT CONFERENCE [SECOND REQUEST] AND FOR SANCTIONS AND EMERGENCY MOTION FOR EXPEDITED BRIEFING SCHEDULE: Incorrect document ﬁled. Attorney reﬁled corrected document (see #98). Motion terminated by Court. (no image attached)(GEW) (Entered: 10/18/2006)
98 EX PARTE MOTION CORRECTED E-FILING of DEFENDANTS' EX PARTE MOTION FOR CONTINUANCE OF CONFIDENTIAL SETTLEMENT CONFERENCE [SECOND REQUEST] AND FOR SANCTIONS AND EMERGENCY MOTION FOR EXPEDITED BRIEFING SCHEDULE by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Laﬂin, Matthew) (Entered: 10/18/2006)
99 RESPONSE to 98 EX PARTE MOTION CORRECTED E-FILING of DEFENDANTS' EX PARTE MOTION FOR CONTINUANCE OF CONFIDENTIAL SETTLEMENT CONFERENCE [SECOND REQUEST] AND FOR SANCTIONS AND EMERGENCY MOTION FOR EXPEDITED BRIEFING SCHEDULE; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 10/18/2006)
100 RESPONSE to 98 EX PARTE MOTION CORRECTED E-FILING of DEFENDANTS' EX PARTE MOTION FOR CONTINUANCE OF CONFIDENTIAL SETTLEMENT CONFERENCE [SECOND REQUEST] AND FOR SANCTIONS AND EMERGENCY MOTION FOR EXPEDITED BRIEFING SCHEDULE; ﬁled by Plaintiff William Lacy. (Olifant, Scott) (Entered: 10/19/2006)
101 ORDER granting in part and denying in part 98 Ex Parte Motion for Continuance of Conﬁdential Settlement Conference and for Sanceions and Emergency Motion for expedited brieﬁng schedule. Granted to the extent the Settlement conference on 10/25/06 is VACATED and rescheduled to 2/21/07 at 9:30am. Denied on all other respects. Signed by Judge Lawrence R. Leavitt on 10/19/06. (AXM) (Entered: 10/19/2006)
102 RESPONSE to 94 MOTION to Compel PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO RESPOND TO DEFENDANT'S FIRST SET OF REQUESTS FOR ADMISSIONS AND SECOND SET OF INTERROGATORIES AND REQUEST FOR SANCTIONS; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Declaration of Angela D. Morrison Replies due by 11/6/2006. (Attachments: # 1 Exhibit 1-8)(Noh, Sue) (Entered: 10/23/2006)
103 NOTICE of Trial Setting: Jury Trial set for 6/19/2007 at 09:00 AM before Judge Howard D. McKibben. (no image attached)(BS, ) (Entered: 10/24/2006)
104 MINUTE ORDER IN CHAMBERS of the Honorable Philip M. Pro, Chief U.S. District Judge on 10/25/2006. By Deputy Clerk: V. Hayes. IT IS ORDERED that this case is reassigned to Chief Judge David A. Ezra from the District of Hawaii for all further proceedings. Judge Howard D. McKibben no longer assigned to case. All further documents must bear the correct case number 2:04-cv-01352-DAE-LRL (base ﬁle) consolidated with 2:04-cv-01479-DAE-LRL. (no image attached) (VHM, ) (Entered: 10/25/2006)
105 REPLY to Response to 94 MOTION to Compel PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO RESPOND TO DEFENDANT'S FIRST SET OF REQUESTS FOR ADMISSIONS AND SECOND SET OF INTERROGATORIES AND REQUEST FOR SANCTIONS; ﬁled by Defendant Republic Silver State Disposal, Inc.. (Laﬂin, Matthew) (Entered: 11/06/2006)
106 STIPULATION STIPULATED PROTECTIVE ORDER PURSUANT TO HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 REGULATION 45

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C.F.R. 164.512 by Plaintiffs Robert LaRocca, William Lacy, U.S. Equal Employment Opportunity Commission, Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 11/07/2006)
107 ORDER. Status Conference set for 12/13/2006 09:00 AM before David A. Ezra. Signed by Judge David A. Ezra on 11/6/06. (AXM) (Entered: 11/08/2006)
108 ORDER ON STIPULATION re 106 Stipulation, for protective order. PROTECTIVE ORDER. Signed by Judge Lawrence R. Leavitt on 11/8/06. (AXM) (Entered: 11/09/2006)
109 STATUS REPORT DEFENDANTS' INTERIM STATUS REPORT (Fifth) by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Laﬂin, Matthew) (Entered: 11/30/2006)
110 STATUS REPORT Plaintiff EEOC's Sixth Interim Status Report by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 12/01/2006)
111 MINUTES OF PROCEEDINGS - Status Conference held on 12/13/2006 before Judge David A. Ezra. Crtrm Administrator: Theresa Lam; Pla Counsel: Sue J. Noh, Scott B. Olifant; Def Counsel: Matthew G. Laﬂin; Court Reporter/FTR #: Aaron Blazevich; Time of Hearing: 9:00am-9:20am. (Lam, Theresa) (Entered: 12/13/2006)
112 STIPULATION and Order Extending Discovery Deadline [Fifth Request] by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Laﬂin, Matthew) (Entered: 01/05/2007)
113 ORDER ON STIPULATION GRANTING 112 Stipulation to extend discovery deadlines. SCHEDULING ORDER. Discovery due by 3/28/2007. Motions due by 4/27/2007. Proposed Joint Pretrial Order due by 5/27/2007. Signed by Judge Lawrence R. Leavitt on 1/8/07. (AXM) (Entered: 01/11/2007)
114 ORDER GRANTING 94 Motion to Compel. EEOC will answer Interrogatory No. 21 by 2/16/07. EEOC to pay Republic Silver State Disposal, Inc. $150 for incurred Motion fees. Signed by Judge Lawrence R. Leavitt on 2/5/07. (AXM) (Entered: 02/08/2007)
115 MOTION for Leave to Appear Government Attorney. Attorney: Thomas S. Lepak. by Plaintiff U.S. Equal Employment Opportunity Commission. (Park, Anna) (Entered: 02/15/2007)
116 MOTION for Sanctions re Discovery by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc., Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 3/10/2007. (Attachments: # 1 Declaration of Wesley Shelton# 2 Exhibit 1-4)(Shelton, Wesley) (Entered: 02/20/2007)
117 MINUTES OF PROCEEDINGS - Settlement Conference held on 2/21/2007 before Judge Lawrence R. Leavitt.Pla Counsel: Anna Y. Park, Sue J. Noh and Angela Morrison for EEOC; Scott B. Olifant for plaintiffs Robert LaRocca and William Lacy, who are present; claimants Eddie Williams and Jimmy Hilton also present; Def Counsel: Bruce C. Young; Andy Barton and Hank Vasquez also present; Time of Hearing: 9:30 a.m.. Counsel and the court met and conferred, however, no settlement was reached. (CAP, ) (Entered: 02/21/2007)
118 ORDER GRANTING 115 Motion for Leave to Appear for Attorney Thomas S. Lepak for U.S. Equal Employment Opportunity Commission. Signed by Judge Lawrence R. Leavitt on 2/20/07. (AXM) (Entered: 02/22/2007)
119 RESPONSE to 116 MOTION for Sanctions re Discovery; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 3/21/2007. (Attachments: # 1

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Declaration of Thomas Lepak# 2 Exhibit to Declaration of Thomas Lepak)(Noh, Sue) (Entered: 03/07/2007)

03/08/2007

120 Sixth MOTION to Extend Time regarding discovery/non dispositive matter by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit and Declaration of Sue J. Noh)(Noh, Sue) (Entered: 03/08/2007)

03/12/2007

121 REPLY to Response to 116 MOTION for Sanctions re Discovery; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Declaration of Wesley Shelton In Support of Reply)(Shelton, Wesley) (Entered: 03/12/2007)

03/12/2007

122 MINUTE ORDER IN CHAMBERS of the Honorable Lawrence R. Leavitt, U.S. Magistrate Judge on 3/12/2007 re 120 Motion to Extend Discovery Deadline. By Judicial Assistant: Carol DePino. Responses due by 3/20/2007. (MJZ) (Entered: 03/13/2007)

03/16/2007

123 SUPPLEMENT to 120 AL Declaration of Karen E. Nutter in support of plaintiff EEOC's motion to extend discovery deadline by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Li, Derek). Modiﬁed on 3/19/2007 to create relationship to motion (GEW). (Entered: 03/16/2007)

03/20/2007

124 SUPPLEMENT to 120 Sixth MOTION to Extend Time regarding discovery/non dispositive matter; Declaration of Sue J. Noh by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Noh, Sue) (Entered: 03/20/2007)

03/20/2007

125 RESPONSE to 120 Sixth MOTION to Extend Time regarding discovery/non dispositive matter; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. OPPOSITION TO EEOC'S MOTION TO EXTEND DISCOVERY DEADLINE [SIXTH REQUEST] (Attachments: # 1 Declaration of Bruce Young# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7)(Young, Bruce) (Entered: 03/20/2007)

03/30/2007

126 ORDER granting 120 Motion to Extend Discovery Deadline. Discovery due by 5/1/2007. Plaintiff will be allowed to take a maximum of ten depositions during the extended discovery period. Signed by Judge Lawrence R. Leavitt on 3/30/07. (AAB) (Entered: 04/02/2007)

04/02/2007

Set/Reset Deadlines: Motions due by 5/31/2007. Proposed Joint Pretrial Order due by 6/30/2007. (GEW) (Entered: 04/03/2007)

04/05/2007

127 STIPULATION AND ORDER EXTENDING DISCOVERY DEADLINE (6th Request) by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Shelton, Wesley) (Entered: 04/05/2007)

04/17/2007

128 ORDER ON STIPULATION granting 127 Stipulation for time regarding Discovery. SCHEDULING ORDER. Discovery due by 6/11/2007. Motions due by 8/10/2007. Proposed Joint Pretrial Order due by 9/10/2007. Signed by Judge Lawrence R. Leavitt on 4/16/07. (AXM) (Entered: 04/17/2007)

04/17/2007

129 MINUTE ORDER IN CHAMBERS of the Honorable Lawrence R. Leavitt, U.S. Magistrate Judge on 4/17/2007. By Deputy Clerk: V. Hayes. On October 25, 2006 at document #104, this case 2:04-cv-01352 and 2:04-cv-1479 were reassigned to the Honorable David A. Ezra and case 2:04-cv-01352 was designated as the base ﬁle. Counsel are advised that all future ﬁlings should be made in case 2:04-cv-01352DAE-LRL only, but all future documents must reﬂect the correct case number 2:04cv-01352-DAE-LRL (BASE FILE) consolidated with 2:04-cv-01479-DAE-LRL.(no image attached) (VHM, ) (Entered: 04/17/2007)

05/09/2007 130 ORDER granting 116 Motion for Sanctions re Discovery. The EEOC shall, not later than

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05/25/2007

131 ORDER Setting Status Conference. Status Conference set for 7/11/2007 10:00 AM before David A. Ezra (courtroom to be assigned). Signed by Judge David A. Ezra on 5/25/07. (AAB) (Entered: 05/29/2007)

06/08/2007

132 STIPULATION and Order Re: Extension of Time for Supplementation of Written Disocvery and Timely Discovery Motion by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 06/08/2007)

06/13/2007

133 ORDER ON STIPULATION granting 132 Stipulation for Extension of Time for Supplementation of Written Discovery and Timely Discovery Motion. Signed by Judge Lawrence R. Leavitt on 6/13/07. (AXM) (Entered: 06/14/2007)

06/19/2007

134 ORDER Requiring Submission of Status Conference Statement. Status Conference Statement due by 7/3/2007. Signed by Judge David A. Ezra on 6/19/07. (Copies have been distributed pursuant to the NEF - AAB) (Entered: 06/19/2007)

06/28/2007 135 STATUS REPORT Interim 7 by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 06/28/2007)

06/29/2007

136 Third MOTION to Compel and for Contempt; Request for Sanctions; Declaration of Sue J. Noh by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 7/17/2007. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Certiﬁcate of Service POS for Motion to Compel)(Noh, Sue) (Entered: 06/29/2007)

07/02/2007

137 STATEMENT of STATUS CONFERENCE STATEMENT TO UNITED STATES DISTRICT COURT JUDGE DAVID ALAN EZRA by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 07/02/2007)

07/03/2007 138 STATUS REPORT of Plaintiffs Robt. LaRocca and Wm. Lacy for July, 2007 by Plaintiff Robert LaRocca. (Olifant, Scott) (Entered: 07/03/2007)

07/11/2007

139 MINUTES OF PROCEEDINGS - Status Conference held on 7/11/2007 before Judge David A. Ezra. Crtrm Administrator: K. Goetsch; Pla Counsel: Sue Noh, and Angela Morrison for US EEOC; and Scott Olifant for Robert LaRocca and William Lacy; Def Counsel: Bruce Young; Court Reporter/FTR #: E. Smith; Time of Hearing: 10:00am. Court hears representations of counsel with respect to the status of the case. Ms. Noh makes representations with respect to the current status of discovery and EEOC's pending motion to compel. Discussion is held with respect to bifurcating the case. The Court provides contact information for his staff in Hawaii and invites the parties to contact them for assistance as necessary. The Court directs the parties to provide his chambers with courtesy copies of documents that are ﬁled electronically, particularly dispositive motions, responses, replies and any voluminous documents. Mr. Young requests permission to exceed the page limit for brieﬁng with respect to dispositive motions and the Court directs the parties to address that issue by way of a stipulation if/when the need arises. Mr. Olifant makes representations and requests leave of the Court to proceed with one outstanding deposition with respect to an economist. Leave of the Court is granted. Upon inquiry by Mr. LaRocca, discussion is held with respect to the anticipated timing of trial in this case. Court adjourns.(no image attached) (Copies have been distributed pursuant to the NEF - KXG, ) (Entered: 07/11/2007)

07/13/2007 140 STIPULATION re 136 Third MOTION to Compel and for Contempt; Request for

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Sanctions; Declaration of Sue J. Noh; STIPULATION AND ORDER EXTENDING TIME FOR DEFENDANTS' OPPOSITION AND EEOC'S REPLY RE: PLAINTIFF EEOC'S MOTION FOR CONTEMPT AND TO COMPEL RESPONSES TO DISCOVERY AND REQUEST FOR SANCTIONS by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 07/13/2007)
141 ORDER ON STIPULATION granting 140 Stipulation extending time to oppose 136 Motion for contempt. Responses due by 7/20/2007. Replies due by 8/6/2007. Signed by Judge Lawrence R. Leavitt on 7/13/07. (Copies have been distributed pursuant to the NEF - MAJ) (Entered: 07/18/2007)
142 RESPONSE to 136 Third MOTION to Compel and for Contempt; Request for Sanctions; Declaration of Sue J. Noh ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. OPPOSITION TO PLAINTIFF EEOC'S MOTION FOR CONTEMPT AND TO COMPEL RESPONSES TO DISCOVERY AND REQUEST FOR SANCTIONS Replies due by 8/3/2007. (Attachments: # 1 Continuation of Opposition# 2 Declaration of Romeo Vellutini# 3 Declaration of Bruce C. Young# 4 Exhibit 1# 5 Exhibit 2# 6 Exhibit 3# 7 Exhibit 4# 8 Exhibit 5# 9 Exhibit 6# 10 Exhibit 7# 11 Exhibit 8# 12 Exhibit 9) (Young, Bruce) (Entered: 07/20/2007)
143 REPLY to Response to 137 Opposition to Motion for Contempt and to Compel Responses to Discovery and Request for Sanctions ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission; Declaration of Karen E.Nutter; And Exhibits (Attachments: # 1 Exhibit Exhibits 1-5b# 2 Certiﬁcate of Service Proof of Service)(Nutter, Karen) Modiﬁed to add docket relationship on 8/7/2007. (Jaime, Melissa) (Entered: 08/06/2007)
144 STIPULATION AND ORDER EXTENDING BRIEFING SCHEDULE FOR DISPOSITIVE MOTIONS AND REQUESTING ENLARGED PAGE LIMIT [SECOND REQUEST] by Plaintiffs Robert LaRocca, William Lacy, U.S. Equal Employment Opportunity Commission, Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 08/09/2007)
145 ORDER ON STIPULATION granting 144 Stipulation for Extension of Brieﬁng Schedule for Dispositive Motions and Requesting Enlarged Page Limit. Motions due by 9/10/2007. Page limit for motions is 60 pages and reply briefs is 30. Signed by Judge David A. Ezra on 8/10/07. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 08/13/2007)
146 MOTION for Summary Judgment Defendant Republic Silver State, Inc., and Republic Services, Inc's Motion for Summary Judgment or Summary Adjudication of Issues by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Responses due by 9/28/2007. (Attachments: # 1 Continuation of the Motion)(Young, Bruce) (Entered: 09/10/2007)
148 STATEMENT of UNCONTROVERTED AND CONTROVERTED FACTS re 146 MOTION for Summary Judgment DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. and REPUBLIC SERVICES, INC.'s MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES ; by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Continuation to Defendants' Statement 2 of 3# 2 Continuation of Defendants' Statement 3 of 3)(Young, Bruce) (Entered: 09/10/2007)
149 DECLARATION of BRUCE YOUNG re 146 MOTION for Summary Judgment DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. and REPUBLIC SERVICES, INC.'s MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 1 - 3# 2 Exhibit 4 - 5# 3 Exhibit 6 - 7# 4 Exhibit 8# 5

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Exhibit 9 - 10# 6 Exhibit 11 - 12# 7 Exhibit 13 - 14# 8 Exhibit 15 - 16# 9 Exhibit 17# 10 Exhibit 18 - 19# 11 Exhibit 20# 12 Exhibit 21# 13 Exhibit 22 - 23# 14 Exhibit 24 - 25# 15 Exhibit 26# 16 Exhibit 27 - 29# 17 Exhibit 30 - 31# 18 Exhibit 32 - 33# 19 Exhibit 34# 20 Exhibit 35# 21 Exhibit 36# 22 Exhibit 37# 23 Exhibit 38# 24 Exhibit 39# 25 Exhibit 40# 26 Exhibit 41# 27 Exhibit 42a# 28 Exhibit 42b# 29 Exhibit 43# 30 Exhibit 44# 31 Exhibit 45# 32 Exhibit 46# 33 Exhibit 46a# 34 Exhibit 47# 35 Exhibit 48# 36 Exhibit 49# 37 Exhibit 50# 38 Exhibit 51# 39 Exhibit 52# 40 Exhibit 53# 41 Exhibit 54# 42 Exhibit 55# 43 Exhibit 56# 44 Exhibit 57# 45 Exhibit 58# 46 Exhibit 59# 47 Exhibit 60# 48 Exhibit 61# 49 Exhibit 62# 50 Exhibit 63# 51 Exhibit 64# 52 Exhibit 65)(Young, Bruce) (Entered: 09/10/2007)

09/10/2007

150 DECLARATION of JULI ODELL re 146 MOTION for Summary Judgment DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. and REPUBLIC SERVICES, INC.'s MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. WITH EXHIBITS 2 - 16 ONLY (EXHIBIT 1 FILED SEPARATELY DUE TO SIZE) (Attachments: # 1 Exhibit 2# 2 Exhibit 3# 3 Exhibit 3a# 4 Exhibit 3b# 5 Exhibit 3c# 6 Exhibit 4# 7 Exhibit 4a# 8 Exhibit 4b# 9 Exhibit 4c# 10 Exhibit 4d# 11 Exhibit 5 to 7# 12 Exhibit 8 to 10# 13 Exhibit 11 to 13# 14 Exhibit 14 to 16)(Young, Bruce) (Entered: 09/10/2007)

09/10/2007

151 DECLARATION of JULI ODELL (Exhibit 1 Only) re 146 MOTION for Summary Judgment DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. and REPUBLIC SERVICES, INC.'s MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (EXHIBITS 2 - 16 FILED SEPARATELY) (Attachments: # 1 Exhibit 1a# 2 Exhibit 1b# 3 Exhibit 1c# 4 Exhibit 1d# 5 Exhibit 1e# 6 Exhibit 1f# 7 Exhibit 1g# 8 Errata 1k# 9 Exhibit 1l# 10 Exhibit 1m# 11 Errata 1n# 12 Exhibit 1o# 13 Civil Cover Sheet 1p# 14 Errata 1q# 15 Exhibit 1r# 16 Exhibit 1s# 17 Exhibit 1t# 18 Errata 1u)(Young, Bruce) (Entered: 09/10/2007)

09/10/2007

152 DECLARATION of JULI ODELL (Pages Missing from Exhibit 1) re 146 MOTION for Summary Judgment DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. and REPUBLIC SERVICES, INC.'s MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Errata Pages missing from Exhibit 1 (Bates: REP/EEOC 2430 - 2449))(Young, Bruce) (Entered: 09/10/2007)

09/11/2007

NOTICE of Docket Correction to 147 Declaration: ERROR: document ﬁled in error, wrong images ﬁled; CORRECTION: Attorney Bruce Young advised to reﬁle document with correct images. (no image attached)(RFJ) (Entered: 09/11/2007)

09/11/2007

153 DECLARATION of HENRY VASQUEZ re 146 MOTION for Summary Judgment DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. and REPUBLIC SERVICES, INC.'s MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 1-2# 2 Exhibit 3-4# 3 Exhibit 5-7# 4 Exhibit 8-10# 5 Exhibit 11-14# 6 Exhibit 15# 7 Exhibit 16# 8 Exhibit 17# 9 Exhibit 18-20)(Young, Bruce) (Entered: 09/11/2007)

09/13/2007

154 ORDER granting in part and denying in part 136 Motion for Contempt and to Compel Responses to Discovery and Request for Sanctions. Signed by Judge Lawrence R. Leavitt on 9/13/07. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 09/15/2007)

09/21/2007 155 MOTION for District Judge to Reconsider Order re 154 Order on Motion to Compel Defendant's Objections and Motion for Reconsideration by District Judge of Order

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Granting Plaintiff's Motion to Compel Responses to Discovery [LOCAL RULE IB 3-1] [ORAL ARGUMENT REQUESTED] by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Responses due by 10/9/2007. (Young, Bruce) (Entered: 09/21/2007)
156 DECLARATION of SUE NOH RE: Plaintiff EEOC'S Attorneys' Fees and Costs submitted pursuant to order 154 GRANTING/DENYING in part EEOC'S Motion to Compel by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) Modiﬁed docket relationship on 9/25/2007.(MAJ) (Entered: 09/24/2007)
157 MINUTE ORDER IN CHAMBERS of the Honorable Lawrence R. Leavitt, U.S. Magistrate Judge, on 9/28/2007. Responses due by 10/9/2007 to Declaration of Sue Noh; Re: Motion to Compel. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 09/28/2007)
158 RESPONSE to 156 Declaration, ; Defendants' response to declaration of Sue Noh re: Plaintiff EEOC'S Attorney's Fees and Costs submitted pursuant to order 154 ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 10/02/2007)
159 RESPONSE to 155 MOTION for District Judge to Reconsider Order; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 10/18/2007. (Attachments: # 1 Exhibit Exhibits A-B)(Noh, Sue) (Entered: 10/04/2007)
160 REPLY to Response to 155 Motion for Reconsideration ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Declaration of Bruce Young in reply to Plaintiff EEOC'S opposition to Motion for Reconsideration and in support of Defendants' Motion for Reconsideration (Attachments: # 1 Exhibit 1-5# 2 Exhibit 6-10) (Young, Bruce) (Entered: 10/09/2007)
161 STIPULATION re 146 MOTION for Summary Judgment Defendant Republics Silver State Disposal, Inc. and Republic Services, Inc.'s Motion for Summary Judgment or Summary Adjudication of Issues ; Stipulation and [proposed] Order (1) Extending Brieﬁng Schedule for Opposition and Reply Briefs RE: Defendants' Motion for Summary Judgment and (2) Extending Safe-Harbor Provision for Defendants' proposed Motion Pursuant to FED. R. CIV. P. 11 by Plaintiffs Robert LaRocca, William Lacy, U.S. Equal Employment Opportunity Commission, Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 10/16/2007)
162 ORDER ON STIPULATION granting 161 Stipulation for Extension of Motion Deadlines. 146 Motion for Summary Judgment Deadlines: Responses due by 12/21/2007. Replies due by 1/31/2008. Safe harbor provision for Defendant's proposed motion due by 1/7/2008. Signed by Judge David A. Ezra on 10/23/07. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 10/24/2007)
163 STIPULATION and proposed order extending brieﬁng on Oppositions and Replies re: Defendants' Motion for Summary Judgment and re: Safe Harbor Provision by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 12/12/2007)
164 ORDER ON STIPULATION granting 163 Stipulation for time. Responses due by 2/15/2008. Replies due 3/17/08. Supplemental discovery due 3/17/07. Signed by Judge David A. Ezra on 12/13/07. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 12/14/2007)
165 ORDER - Afﬁrming Magistrate Order 154 Granting Plaintiff's Motion to Compel Production of Documents. Signed by Judge David A. Ezra. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 12/17/2007)

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166 ORDER Further Granting 136 Third MOTION to Compel. Defendant to pay not later than 1/31/08 $10,000 as reasonable fees. Signed by Judge Lawrence R. Leavitt on 12/17/07. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 12/20/2007)
167 STIPULATION re 164 Order on Stipulation ; re Motion for Summary Judgment by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 02/12/2008)
168 ORDER ON STIPULATION granting 167 Stipulation re: 146 MOTION for Summary Judgment Defendant Republics Silver State Disposal, Inc. and Republic Services, Inc.'s Motion for Summary Judgment or Summary Adjudication of Issues. (Responses due by 4/11/2008. Replies due 30 days after Responses. Sur-Reply due 30 days from Replies.) Signed by David A. Ezra on 2/25/08. (Copies have been distributed pursuant to the NEF ASB) (Entered: 02/25/2008)
169 ORDER Setting Hearing on 146 MOTION for Summary Judgment Defendant Republics Silver State Disposal, Inc. and Republic Services, Inc.'s Motion for Summary Judgment or Summary Adjudication of Issues : Motion Hearing set for 5/19/2008 09:00 AM in a courtroom to be assigned before David A. Ezra. Signed by David A. Ezra on 4/7/08. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 04/07/2008)
170 RESPONSE to 146 MOTION for Summary Judgment Defendant Republics Silver State Disposal, Inc. and Republic Services, Inc.'s Motion for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff's Opposition to Defendant's Motion for Summary Judgment or Summary Adjudication of Issues Replies due by 4/24/2008. (Noh, Sue) (Entered: 04/10/2008)
171 DECLARATION of Sue J. Noh In Support of Plaintiff's Opposition to Defendants' Motion For Summary Judgment or Summary Adjudication of Issues re 170 Response to Motion, ; by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 04/10/2008)
172 APPENDIX to 171 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, volume 1, # 2 Exhibit 2, volume 1, # 3 Exhibit 3, volume 1, # 4 Exhibit 4, volume 1, # 5 Exhibit 5, volume 1, # 6 Exhibit 6, volume 1, # 7 Exhibit 7, volume 1, # 8 Exhibit 8, volume 1, # 9 Exhibit 9, volume 1, # 10 Exhibit 10, volume 1, # 11 Exhibit 11, volume 1, # 12 Exhibit 12, volume 1, # 13 Exhibit 13, volume 1, # 14 Exhibit 14, volume 1, # 15 Exhibit 15, volume 1, # 16 Exhibit 16, volume 1, # 17 Exhibit 17, volume 1, # 18 Exhibit 18, volume 1, # 19 Exhibit 19, volume 1, # 20 Proof of Service)(Noh, Sue) (Entered: 04/10/2008)
173 APPENDIX to 171 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 20, volume 2, # 2 Exhibit 21, volume 2, # 3 Exhibit 22, volume 2, # 4 Exhibit 23, volume 2, # 5 Exhibit 24, volume 2, # 6 Exhibit 25, volume 2, # 7 Exhibit 26, volume 2, # 8 Exhibit 27, volume 2, # 9 Exhibit 28, volume 2, # 10 Exhibit 29, volume 2, # 11 Exhibit 30, volume 2, # 12 Exhibit 31, volume 2, # 13 Exhibit 32, volume 2, # 14 Exhibit 33, volume 2, # 15 Exhibit 34, volume 2, # 16 Exhibit 35, volume 2, # 17 Exhibit 36, volume 2, # 18 Exhibit 37, volume 2, # 19 Exhibit 38, volume 2, # 20 Exhibit 39, volume 2, # 21 Exhibit 40, volume 2, # 22 Proof of Service) (Noh, Sue) (Entered: 04/10/2008)
174 APPENDIX OF EXHIBITS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES to 171 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 41, Volume 3, # 2

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Exhibit 42, Volume 3, # 3 Exhibit 43, Volume 3, # 4 Exhibit 44, Volume 3, # 5 Exhibit 45, Volume 3, # 6 Exhibit 46, Volume 3, # 7 Exhibit 47, Volume 3, # 8 Exhibit 48, Volume 3, # 9 Exhibit 49, Volume 3, # 10 Exhibit 50, Volume 3, # 11 Exhibit 51, Volume 3, # 12 Exhibit 52, Volume 3, # 13 Exhibit 53, Volume 3, # 14 Exhibit 54, Volume 3, # 15 Exhibit 55, Volume 3, # 16 Exhibit 56, Volume 3, # 17 Exhibit 57, Volume 3, # 18 Exhibit 58, Volume 3)(Noh, Sue) (Entered: 04/10/2008)
175 APPENDIX Certiﬁcate of Service to 174 Appendix,,, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 04/10/2008)
176 APPENDIX OF EXHIBITS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES (Volume 4 of 7 Exhibits 59 67 (Pt. 1)) to 171 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 59, Volume 4, # 2 Exhibit 60, Volume 4, # 3 Exhibit 61, Volume 4, # 4 Exhibit 62, Volume 4, # 5 Exhibit 63, Volume 4, # 6 Exhibit 64, Volume 4, # 7 Exhibit 65, Volume 4, # 8 Exhibit 63, Volume 4, # 9 Exhibit 67, Volume 4, Part 1, # 10 Exhibit 67, Volume 4, Part 2, # 11 Exhibit 67, Volume 4, Part 3, # 12 Exhibit 67, Volume 4, Part 4, # 13 Exhibit 67, Volume 4, Part 5, # 14 Exhibit 67, Volume 4, Part 6, # 15 Exhibit 67, Volume 4, Part 7, # 16 Exhibit 67, Volume 4, Part 8)(Noh, Sue) (Entered: 04/10/2008)
177 RESPONSE to 146 MOTION for Summary Judgment Defendant Republics Silver State Disposal, Inc. and Republic Services, Inc.'s Motion for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff Robert LaRocca. and Wm. Lacy Replies due by 4/24/2008. (Olifant, Scott) Correct image attached # 3 New, # 4 Supplement, # 5 Declaration, # 6 Declaration) (AXM). Modiﬁed on 4/11/2008 (AXM). (Entered: 04/10/2008)
178 APPENDIX to 171 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 67 (Pt. 2), volume 5, # 2 Exhibit 68 (Pt. 2), volume 5, # 3 Exhibit 69 (Pt. 2), volume 5, # 4 Exhibit 70 (Pt. 2), volume 5, # 5 Exhibit 71(Pt. 2), volume 5, # 6 Exhibit 72 (Pt.2), volume 5, # 7 Exhibit 73 (Pt. 2), volume 5, # 8 Proof of Service)(Noh, Sue) (Entered: 04/11/2008)
180 APPENDIX to 171 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 73-vol6-part1, # 2 Exhibit 74-vol6, # 3 Exhibit 75-vol6, # 4 Exhibit 76-vol6, # 5 Exhibit 77-vol6, # 6 Exhibit 78-vol6, # 7 Exhibit 79vol6, # 8 Exhibit 80-vol6, # 9 Exhibit 81-vol6, # 10 Exhibit 82-vol6, # 11 Exhibit 83vol6, # 12 Exhibit 84-vol6, # 13 Exhibit 85-vol6, # 14 Exhibit 86-vol6, # 15 Exhibit 87vol6, # 16 Exhibit 88-vol6, # 17 Exhibit 89-vol6, # 18 Exhibit 90-vol6, # 19 Proof of Service)(Noh, Sue) (Entered: 04/11/2008)
181 APPENDIX to 171 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 91, volume 7, # 2 Exhibit 92, volume 7, # 3 Exhibit 93, volume 7, # 4 Exhibit 94, volume 7, # 5 Exhibit 95, volume 7, # 6 Exhibit 96, volume 7, # 7 Exhibit 96 (Pt. 2), vol. 7, # 8 Exhibit 97, volume 7, # 9 Proof of Service) (Noh, Sue) (Entered: 04/11/2008)
182 SUPPLEMENT to 178 Appendix, ; by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 67-Volume 5-part 1, # 2 Exhibit 67-Volume 5Part 2, # 3 Exhibit 73- Volume 5 - Part 1, # 4 Exhibit 73-Volume 5 - Part 2, # 5 Exhibit 73 - Volume 5 - Part 3, # 6 Proof of Service of Supplement)(Noh, Sue) (Entered: 04/11/2008)
183 STATEMENT of Genuine Issues of Material Fact in Support of Plaintiff's Opposition to Def.'s Motion for Summary Judgment or Summary Adjudication of Issues re 170 Response to Motion, ; by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Proof of Service)(Noh, Sue) (Entered: 04/11/2008)

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184 OBJECTION to 170 Response to Motion, ; Plaintiff EEOC's Objections and Response to Def. Statement of Uncontroverted and Controverted Facts In Supp. of Def. Mot. for Summary Judgment or Summary Adjud. of Issues (Docket # 148) ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Proof of Service)(Noh, Sue) (Entered: 04/11/2008)
185 DECLARATION of Plaintiff's Counsel Sue Noh in Supp. of Plaintiff's 184 Objections and Response to Def. Statement of Uncontroverted Facts in Supp. of Def. Mot. for Summary Judgment or Summary Adjud. of Issues by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 98, # 2 Exhibit 99, # 3 Exhibit 100, # 4 Proof of Service)(Noh, Sue) Docket entry relationship added on 4/14/08. (MJZ) (Entered: 04/11/2008)
186 DECLARATION of Plaintiff re: Proof of Service via Case Management / Electronic Filing and Service System (CM / ECF) re: Filings Submitted in Supp. of Pl. Opp. to Def. Mot. for Summary Judgment or Summary Adjud. of Issues re 172 Appendix,, 173 Appendix,, 175 Appendix, 171 Declaration, 176 Appendix,,, 174 Appendix,,, 170 Response to Motion, ; by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Proof of Service)(Noh, Sue) (Entered: 04/11/2008)
187 MEMORANDUM ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission re 146 MOTION for Summary Judgment Defendant Republics Silver State Disposal, Inc. and Republic Services, Inc.'s Motion for Summary Judgment or Summary Adjudication of Issues. Plaintiff EEOC's Memorandum of Points and Authorities in Opposition to Def. Mot. for Summary Judgment or Summary Adjud. of Issues (Attachments: # 1 Proof of Service)(Noh, Sue) (Entered: 04/11/2008)
188 NOTICE by Plaintiff U.S. Equal Employment Opportunity Commission re 178 Appendix,. PLAINTIFFS NOTICE OF ERRATA RE: EXHIBITS 70 AND 71 CONTAINED IN APPENDIX OF EXHIBITS VOL. 5 (Noh, Sue) (Entered: 04/15/2008)
189 ORDER - The Court hereby amends its Order Regarding Brieﬁng Schedule (Doc. # 168) ﬁled on February 25, 2008, by deleting paragraph 3 in its entirety and replacing it with the following: 3. Plaintiffs may ﬁle a Sur Reply on or before May 29, 2008, which is limited to 30 pages. Signed by David A. Ezra on 4/16/08. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 04/17/2008)
190 MOTION for Leave to File Excess Pages MOTION FOR LEAVE TO FILE REPLY BRIEF IN EXCESS OF 40 PAGES; [PROPOSED] ORDER by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Motion ripe 5/12/2008. (Young, Bruce) (Entered: 05/12/2008)
191 REPLY to Response to 146 MOTION for Summary Judgment Defendant Republics Silver State Disposal, Inc. and Republic Services, Inc.'s Motion for Summary Judgment or Summary Adjudication of Issues ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Reply part two of two, # 2 Declaration Of Henry Vasquez in Support of Reply, # 3 Exhibit 21 - 23 to Vasquez Declaration, # 4 Exhibit 24 to Vasquez Declaration, # 5 Exhibit 25 to Vasquez Declaration, # 6 Exhibit 26 part 1 of 2 to Vasquez Declaration, # 7 Exhibit 26 part 2 of 2 to Vasquez Declaration, # 8 Exhibit 27 to Vasquez Declaration)(Young, Bruce) (Entered: 05/12/2008)
192 SUPPLEMENT to 191 Reply to Response to Motion,, ; DEFENDANTS' SUPPLEMENTAL STATEMENT OF UNCONTROVERTED FACTS by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 05/12/2008)
193 DECLARATION of Bruce C. Young re 191 Reply to Response to Motion,, ;

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DECLARATION OF BRUCE YOUNG IN SUPPORT OF DEFENDANTS REPUBLIC SILVER STATE DISPOSAL, INC. AND REPUBLIC SERVICES, INC.'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 66-68 of Bruce Young Declaration in Support of Reply to MSJ, # 2 Exhibit 69-72 to Bruce Young Declaration, # 3 Exhibit 7377 to Bruce Young Declaration, # 4 Exhibit 78-81 to Bruce Young Declaration, # 5 Exhibit 82-84 to Bruce Young Declaration, # 6 Exhibit 85-87 to Bruce Young Declaration, # 7 Exhibit 88-90 to Bruce Young Declaration)(Young, Bruce) (Entered: 05/12/2008)
194 MOTION for Sanctions PURSUANT TO RULE 11 OF THE FEDERAL RULES OF CIVIL PROCEDURE by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Responses due by 5/31/2008. (Young, Bruce) (Entered: 05/13/2008)
195 DECLARATION of BRUCE YOUNG re 194 MOTION for Sanctions PURSUANT TO RULE 11 OF THE FEDERAL RULES OF CIVIL PROCEDURE ; by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 05/13/2008)
196 RESPONSE to 190 MOTION for Leave to File Excess Pages MOTION FOR LEAVE TO FILE REPLY BRIEF IN EXCESS OF 40 PAGES; [PROPOSED] ORDER, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff EEOC's Opposition to Defendants' Motion for Leave to File Reply in Excess of Forty Pages Replies due by 5/27/2008. (Attachments: # 1 Declaration Declaration Sue J. Noh in Support of Plaintiff EEOC's Opposition ot Defendants' Motion for Leave to File Reply in Excess of Forty Pages, # 2 Exhibit Exhibits 1-4 in Support of Plaintiff EEOC's Opposition to Defendants' Motion for Leave to File Reply in Excess of Forty Pages)(Noh, Sue) (Entered: 05/13/2008)
197 JOINDER in Plaintiff EEOC's RESPONSE to 190 MOTION for Leave to File Excess Pages; [PROPOSED] ORDER, ﬁled by Plaintiff William Lacy. (Notice of Joinder in plaintiff EEOC's opposition to page length excess and objection to post opposition supplemental evidence by defendants) Replies due by 5/28/2008. (Olifant, Scott) Modiﬁed docket text on 5/15/2008 (MAJ). (Entered: 05/14/2008)
198 REPLY to Response to 190 MOTION for Leave to File Excess Pages MOTION FOR LEAVE TO FILE REPLY BRIEF IN EXCESS OF 40 PAGES; [PROPOSED] ORDER ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 05/15/2008)
199 ORDER Granting 190 Motion for Leave to File Excess Pages. ORDER regarding ﬁling of Sur Reply. Signed by David A. Ezra on 5/16/08. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 05/16/2008)
200 RESPONSE to 184 Objection to Document, ; DEFENDANTS' RESPONSE TO PLAINTIFF EEOC'S OBJECTIONS TO DEFENDANT'S SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND DEFENDANTS' SUPPORTING EVIDENCE ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Continuation Pages 31-60, # 2 Continuation Pages 61-90, # 3 Continuation Pages 91130)(Young, Bruce) (Entered: 05/16/2008)
201 DECLARATION of BRUCE YOUNG re 200 Response - Other, ; DECLARATION OF BRUCE YOUNG IN SUPPORT OF DEFENDANTS' RESPONSE TO PLAINTIFF EEOC'S OBJECTIONS TO DEFENDANT'S SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND DEFENDANTS' SUPPORTING EVIDENCE by

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05/30/2008

202 MINUTES OF PROCEEDINGS - Motion Hearing held on 5/30/2008 before David A. Ezra. Crtrm Administrator: Theresa Lam; Pla Counsel: Sue Noh, Scott B. Olifant; Def Counsel: Bruce C. Young, Roger L. Grandgenett; Court Reporter/FTR #: Felicia Zabin; Time of Hearing: 9:00am-10:10am; Courtroom: 4B; denying 146 Motion for Summary Judgment. (Copies have been distributed pursuant to the NEF - Lam, Theresa) (Entered: 05/30/2008)

06/03/2008

203 ORDER Denying 194 Motion for Sanctions Without Prejudice and Denying 146 Motion for Summary Judgment Without Prejudice. Signed by David A. Ezra on 6/2/08. (Copies have been distributed pursuant to the NEF - AXM) Modiﬁed clerical error on 11/24/2008. (ASB) (Entered: 06/03/2008)

06/26/2008 204 MOTION to Expedite preferential and immediate trial setting by Plaintiff William Lacy. Motion ripe 6/26/2008. (Olifant, Scott) (Entered: 06/26/2008)

06/26/2008

205 DECLARATION of Scott Olifant re 204 MOTION to Expedite preferential and immediate trial setting ; ﬁled by Plaintiff William Lacy. (Olifant, Scott) (Entered: 06/26/2008)

06/30/2008

206 RESPONSE to 204 MOTION to Expedite preferential and immediate trial setting, ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. DEFENDANTS' RESPONSE TO PLAINTIFF LACY'S MOTION FOR PREFERENTIAL AND IMMEDIATE TRIAL SETTING Replies due by 7/14/2008. (Young, Bruce) (Entered: 06/30/2008)

07/02/2008

207 ORDER re 204 Motion to Expedite. The Court Disposes of the motion and will endeavor to set trial at the earliest possible opportunity. Signed by David A. Ezra on 7/2/08. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 07/03/2008)

07/18/2008

208 MOTION for Summary Judgment or Summary Adjudication of Issues by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Responses due by 8/5/2008. (Young, Bruce) (Entered: 07/18/2008)

07/18/2008

209 DECLARATION of Bruce C. Young re 208 MOTION for Summary Judgment or Summary Adjudication of Issues ; by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 1-3, # 2 Exhibit 4-6, # 3 Exhibit 7-9, # 4 Exhibit 10-13, # 5 Exhibit 14-17, # 6 Exhibit 18-21, # 7 Exhibit 22-25, # 8 Exhibit 26-29, # 9 Exhibit 30-34, # 10 Exhibit 35-38, # 11 Exhibit 39-43, # 12 Exhibit 44-48, # 13 Exhibit 49-53, # 14 Exhibit 54-58, # 15 Exhibit 59-62, # 16 Exhibit 63-65)(Young, Bruce) (Entered: 07/18/2008)

07/18/2008

210 DECLARATION of JULI ODELL re 208 MOTION for Summary Judgment or Summary Adjudication of Issues ; by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1a, # 3 Exhibit 1b, # 4 Exhibit 1c, # 5 Exhibit 1d, # 6 Exhibit 1e, # 7 Exhibit 1f, # 8 Exhibit 1g, # 9 Exhibit 1h, # 10 Exhibit 1i, # 11 Exhibit 1j, # 12 Exhibit 1k, # 13 Exhibit 1l, # 14 Exhibit 1m, # 15 Exhibit 1n, # 16 Exhibit 1o, # 17 Exhibit 1p, # 18 Exhibit 2-3, # 19 Exhibit 3a, # 20 Exhibit 3b, # 21 Exhibit 4, # 22 Exhibit 4a, # 23 Exhibit 4b, # 24 Exhibit 4c, # 25 Exhibit 5-11, # 26 Exhibit 12-16)(Young, Bruce) (Entered: 07/18/2008)

07/18/2008

211 DECLARATION of HENRY VASQUEZ re 208 MOTION for Summary Judgment or Summary Adjudication of Issues ; by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 1-2, # 2 Exhibit 3-4, # 3 Exhibit 5-7, # 4 Exhibit 8-10, # 5 Exhibit 11-14, # 6 Exhibit 15, # 7 Exhibit 16, # 8 Exhibit 17, # 9 Exhibit 18-20)(Young, Bruce) (Entered: 07/18/2008)

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212 STATEMENT of UNCONTROVERTED AND CONTROVERTED FACTS re 208 MOTION for Summary Judgment or Summary Adjudication of Issues ; by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 07/18/2008)
213 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues; ﬁled by Plaintiffs Robert LaRocca and William Lacy. Replies due by 8/12/2008. (Attachments: # 1 Separate Statement of Undisputed Facts, # 2 Declaration of Gerald Benford, # 3 Declaration of Robert LaRocca, # 4 Declaration of William Lacy)(SRK) (Entered: 07/30/2008)
214 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff's Opposition to Defendants' Motion for Summary Judgment or Summary Adjudiction of Issues Replies due by 8/19/2008. (Noh, Sue) (Entered: 08/05/2008)
215 DECLARATION in support of 214 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Declaration of Plaintiff's Attorney Sue J. Noh in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment or Summary Adjudication of Issues (Noh, Sue) Modiﬁed to add docket relationship on 8/6/2008 (MAJ). (Entered: 08/05/2008)
216 EXHIBITS in support of 214 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff's Appendix of Exhibits in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment or Summary Adjudication of Issues Replies due by 8/19/2008. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 38A, # 40 Exhibit 38B, # 41 Exhibit 39, # 42 Exhibit 40)(Noh, Sue) Modiﬁed to add docket relationship on 8/6/2008 (MAJ). (Entered: 08/05/2008)
217 APPENDIX of Exhibits in Support of 214 Plaintiff's Opposition to Defendants' 208 Motion for Summary Judgment or Summary Adjudication of Issues (Volume 2 of 4Exhibits 41-67) to 215 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 41-46, # 2 Exhibit 47, # 3 Exhibit 48, # 4 Exhibit 49, # 5 Exhibit 50, # 6 Exhibit 51, # 7 Exhibit 52, # 8 Exhibit 53, # 9 Exhibit 54, # 10 Exhibit 55, # 11 Exhibit 56, # 12 Exhibit 57, # 13 Exhibit 58, # 14 Exhibit 59, # 15 Exhibit 60, # 16 Exhibit 61, # 17 Exhibit 62, # 18 Exhibit 63, # 19 Exhibit 64, # 20 Exhibit 65, # 21 Exhibit 66, # 22 Exhibit 67 part 1, # 23 Exhibit 67 part 2, # 24 Exhibit 67 part 3, # 25 Exhibit 67 part 4, # 26 Exhibit 67 part 5, # 27 Exhibit 67 part 6, # 28 Exhibit 67 part 7, # 29 Exhibit 67 part 8, # 30 Exhibit 67 part 9, # 31 Exhibit 67 part 10)(Noh, Sue) Modiﬁed to add docket relationship on 8/6/2008 (MAJ). (Entered: 08/05/2008)
218 APPENDIX of Exhibits in Support of 214 Plaintiff's Opposition to 208 Defendants' Motion for Summary Judgment or Summary Adjudication of Issues (Volume 3 of 4Exhibits 68-97) to 215 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 68, # 2 Exhibit 69, # 3 Exhibit 70, # 4 Exhibit 71, # 5 Exhibit 72, # 6 Exhibit 73 part 1, # 7 Errata 73 part 2, # 8 Exhibit 73

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part 3, # 9 Exhibit 73 part 4, # 10 Exhibit 74, # 11 Errata 75, # 12 Exhibit 76, # 13 Exhibit 77, # 14 Exhibit 78, # 15 Exhibit 79, # 16 Exhibit 80, # 17 Exhibit 81, # 18 Exhibit 82, # 19 Exhibit 83, # 20 Exhibit 84, # 21 Exhibit 85, # 22 Exhibit 86, # 23 Exhibit 87, # 24 Exhibit 88, # 25 Exhibit 89, # 26 Exhibit 90, # 27 Exhibit 91, # 28 Exhibit 92, # 29 Errata 93, # 30 Exhibit 94, # 31 Exhibit 95, # 32 Exhibit 96 part 1, # 33 Exhibit 96 part 2, # 34 Exhibit 97)(Noh, Sue) Modiﬁed to add docket relationship on 8/6/2008 (MAJ). (Entered: 08/05/2008)
219 APPENDIX of Exhibits in Support of 214 Plaintiff's Opposition to 208 Defendants' Motion for Summary Judgment or Summary Adjudication of Issues (Vol. 4 of 4 - Exhibits 98 - 101) to 215 Declaration, ; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 98, # 2 Exhibit 99, # 3 Exhibit 100, # 4 Exhibit 101 Part 1, # 5 Exhibit 101 Part 2, # 6 Exhibit 101 Part 3, # 7 Exhibit 101 Part 4)(Noh, Sue) Modiﬁed to add docket relationship on 8/6/2008 (MAJ). (Entered: 08/05/2008)
220 STATEMENT in support of 214 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff EEOC's Statement of Genuine Issues of Material Fact in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment or Summary Adjudication of Issues; Proof of Service Replies due by 8/19/2008. (Noh, Sue) Modiﬁed to add docket relationship/type on 8/6/2008 (MAJ). (Entered: 08/05/2008)
221 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff's Objections and Response to Defendants' Statement of Uncontroverted and Controverted Facts in Support of Defendants' Motion for Summary Judgment or Summary Adjudication of Issues; Proof of Service Replies due by 8/19/2008. (Noh, Sue) (Entered: 08/05/2008)
222 MEMORANDUM in support of 214 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff EEOC's Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment or for Summary Adjudication of Issues; Proof of Service Replies due by 8/19/2008. (Noh, Sue) Modiﬁed to add docket relationship on 8/6/2008 (MAJ). (Entered: 08/05/2008)
223 REQUEST for Judicial Notice in support of 214 RESPONSE to 208 MOTION for Summary Judgment or Summary Adjudication of Issues, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Plaintiff EEOCs Request for Judicial Notice Re: 2000 Census Data and Fishers Exact Test Referenced at Appendix of Exhibits Ex. 101 in Support of EEOCs Oppositions to Defendants Motion for Summary Judgment or Summary Adjudication of Issues; Proof of Service Replies due by 8/21/2008. (Noh, Sue) Modiﬁed docket type on 8/11/2008 (MAJ). (Entered: 08/07/2008)
224 REPLY to Response to 208 MOTION for Summary Judgment or Summary Adjudication of Issues ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. REPLY TO PLAINTIFF LACY AND LAROCCA'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Attachments: # 1 Declaration of Bruce Young in Support of Reply)(Young, Bruce) (Entered: 08/12/2008)
225 MOTION to Strike 214 Response to Motion, 213 Response to Motion, DEFENDANTS' MOTION TO STRIKE NEW PORTIONS OF PLAINTIFFS LACY'S AND LAROCCA'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF GERALD BENFORD by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Responses due by 8/30/2008. (Young, Bruce) (Entered: 08/12/2008)
226 Emergency MOTION for Leave to File Excess Pages Reply Brief with a 65 page

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limitation; and extend time to ﬁle reply brief; and [PROPOSED] ORDER by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Motion ripe 8/12/2008. (Attachments: # 1 Declaration of ROGER GRANDGENETT II)(Young, Bruce) Modiﬁed docket text on 8/15/2008 (MAJ). (Entered: 08/12/2008)
227 RESPONSE to 226 Emergency MOTION for Leave to File Excess Pages, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 8/27/2008. (Noh, Sue) Modiﬁed docket text on 8/15/2008 (MAJ). (Entered: 08/13/2008)
228 ORDER: Defendants' 226 Motion for Leave to File Excess Pages is Granted. Reply to the 208 Motion for Summary Judgment is Extended to 09/04/08. ( Replies due by 9/4/2008.) Signed by David A. Ezra on 08/13/08. (Copies have been distributed pursuant to the NEF - SRK) (Entered: 08/13/2008)
229 RESPONSE to 225 MOTION to Strike 214 Response to Motion, 213 Response to Motion, DEFENDANTS' MOTION TO STRIKE NEW PORTIONS OF PLAINTIFFS LACY'S AND LAROCCA'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF GERALD BE MOTION to Strike 214 Response to Motion, 213 Response to Motion, DEFENDANTS' MOTION TO STRIKE NEW PORTIONS OF PLAINTIFFS LACY'S AND LAROCCA'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF GERALD BE, ﬁled by Plaintiff Robert LaRocca. Replies due by 8/29/2008. (Olifant, Scott) (Entered: 08/15/2008)
230 TRANSCRIPT of Proceedings, 202 Order on Motion for Summary Judgment, Motion Hearing, held on 5/19/2008, before David A. Ezra. Court Reporter: Felicia Zabin, 702676-1087. Transcript may be viewed at the court public terminal or purchased through the Court Reporter using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/12/2008. Redacted Transcript Deadline set for 9/22/2008. Release of Transcript Restriction set for 11/20/2008. (FRZ) (Entered: 08/22/2008)
231 MOTION to Strike 214 Response to Motion, 219 Appendix,, 223 MOTION DEFENDANTS' MOTION TO STRIKE DECLARATION OF MARLA STERN AND PORTIONS OF THE EEOC'S OPPOSITION AND EXHIBITS RELATING TO MARLA STERN'S DECLARATION AND PURPORTED STATISTICAL ANALYSIS; OPPOSITION TO JUDICIAL NOTICE REQUEST RE: U.S. CENSUS 2000 EEO DATE TOOL; AND REQUEST FOR SANCTIONS by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Responses due by 9/14/2008. (Attachments: # 1 Declaration of Roger L. Grandgenett, II, # 2 Declaration of Romeo Vellutini)(Young, Bruce) (Entered: 08/27/2008)
232 REPLY to Response to 225 MOTION to Strike 214 Response to Motion, 213 Response to Motion, Defendants' Motion to Strike New Portions of Plaintiffs Lacy's and Larocca's opposition to Defendants' Motion for Summary Judgment and Declaration of Gerald be Motion to Strike 214 Response to Motion, 213 Response to Motion; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Grandgenett, Roger) Modiﬁed text on 9/2/2008 (MAJ). (Entered: 08/29/2008)
233 REPLY to Response to 208 MOTION for Summary Judgment or Summary Adjudication of Issues ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. DEFENDANTS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES (Attachments: # 1 Continuation of Reply) (Young, Bruce) (Entered: 09/04/2008)
234 DECLARATION of BRUCE C. YOUNG re 233 Reply to Response to Motion, ; IN

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SUPPORT OF DEFENDANTS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 66-68, # 2 Exhibit 69-72, # 3 Exhibit 73-77, # 4 Exhibit 78-81, # 5 Exhibit 82-84, # 6 Exhibit 85-88, # 7 Exhibit 89-92, # 8 Exhibit 93-95, # 9 Exhibit 96-98)(Young, Bruce) (Entered: 09/04/2008)

09/04/2008

235 DECLARATION of HENRY VASQUEZ re 233 Reply to Response to Motion, ; IN SUPPORT OF REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 21-24, # 2 Exhibit 25, # 3 Exhibit 26 (part 1 of 2), # 4 Exhibit 26 (part 2 of 2), # 5 Exhibit 27-28)(Young, Bruce) (Entered: 09/04/2008)

09/04/2008

236 DECLARATION of JULI ODELL re 233 Reply to Response to Motion, ; by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Exhibit 4a (part 1 of 3), # 2 Exhibit 4a (part 2 of 3), # 3 Exhibit 4a (part 3 of 3), # 4 Exhibit 6a - 16a) (Young, Bruce) (Entered: 09/04/2008)

09/04/2008

237 STATEMENT of UNCONTROVERTED FACTS re 233 Reply to Response to Motion, ; DEFENDANTS' SUPPLEMENTAL STATEMENT OF UNCONTROVERTED FACTS by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Young, Bruce) (Entered: 09/04/2008)

09/04/2008

238 OBJECTION to 221 Response to Motion, ; DEFENDANTS' RESPONSE TO PLAINTIFF EEOC'S OBJECTIONS TO DEFENDANTS' SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND DEFENDANTS' SUPPORTING EVIDENCE ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Attachments: # 1 Continuation 2 of 5, # 2 Continuation 3 of 5, # 3 Continuation 4 of 5, # 4 Continuation 5 of 5)(Young, Bruce) (Entered: 09/04/2008)

09/10/2008

239 RESPONSE to 231 MOTION to Strike 214 Response to Motion, 219 Appendix, 223 MOTION DEFENDANTS' MOTION TO STRIKE DECLARATION OF MARLA STERN AND PORTIONS OF THE EEOC'S OPPOSITION AND EXHIBITS RELATING TO MARLA STERN'S DECLARATION AND PURPORTED MOTION to Strike 214 Response to Motion, 219 Appendix, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 9/24/2008. (Attachments: # 1 Exhibit Ex. 1-6)(Noh, Sue) Modiﬁed on 9/15/2008 (MAJ). (Entered: 09/10/2008)

09/11/2008

240 NOTICE by Plaintiff U.S. Equal Employment Opportunity Commission re 239 Response to Motion,,,,,. PLAINTIFF EEOCS NOTICE OF ERRATA RE: EXHIBITS TO EEOCS OPPOSITION TO DEFENDANTS MOTION TO STRIKE PORTIONS OF THE EEOCS OPPOSITION AND EXHIBITS RELATING TO MARLA STERNS DECLARATION AND PURPORTED STATISTICAL ANALYSIS; OPPOSITION TO JUDICIAL NOTICE REQUEST RE: U.S. CENSUS 2000 EEO DATA TOOL; AND REQUEST FOR SANCTIONS; AND PROOF OF SERVICE (Noh, Sue) (Entered: 09/11/2008)

09/22/2008

241 REPLY to Response to 231 MOTION to Strike 214 Response to Motion, 219 Appendix, 223 MOTION Defendants' Motion to Strike Declaration of Marla Stern and Portions of the EEOC's Opposition and Exhibits Relating to Marla Stern's Declaration and Purported MOTION to Strike 214 Response to Motion, 219 Appendix, 223 MOTION DEFENDANTS' MOTION TO STRIKE DECLARATION OF MARLA STERN AND PORTIONS OF THE EEOC'S OPPOSITION AND EXHIBITS RELATING TO MARLA STERN'S DECLARATION AND PURPORTED MOTION to Strike 214 Response to Motion, 219 Appendix, 223 MOTION DEFENDANTS' MOTION TO STRIKE DECLARATION OF MARLA STERN AND PORTIONS OF THE EEOC'S OPPOSITION AND EXHIBITS RELATING TO MARLA STERN'S DECLARATION AND PURPORTED ;

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ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc. DEFENDANTS' REPLY IS SUPPORT OF MOTION TO STRIKE DECLARATION OF MARLA STERN AND PORTIONS OF THE EEOC'S OPPOSITION AND EXHIBITS RELATING TO MARLA STERN'S DECLARATION AND PURPORTED STATISTICAL ANALYSIS; AND REQUEST FOR SANCTIONS (Young, Bruce) Modiﬁed duplicate text on 9/23/2008 (MAJ). (Entered: 09/22/2008)
242 ORDER that a Motion Hearing is set for 12/5/2008 at 09:00 AM before David A. Ezra re 208 Motion for Summary Judgment or Summary Adjudication Issues, 225 Motion to Strike New Portions of Opposition, and 231 Motion to Strike Declaration of Marla Stern. Signed by David A. Ezra on 10/10/08. (Copies have been distributed pursuant to the NEF - ES) (Entered: 10/10/2008)
243 ORDER Granting 231 Motion to Strike Declaration of Marla Stern and Portions of the EEOC's Opposition and Exhibits Relating to Marla Stern's Declaration and Purported Statistical Analysis; Granting Request to Strike EEOC's Request for Judicial Notice of US Census 2000 Data; and Granting Request for Sanctions. Signed by Judge David A. Ezra on 11/26/08. (Copies have been distributed pursuant to the NEF - SRK) (Entered: 11/26/2008)
244 Emergency MOTION for District Judge to Reconsider Order re 243 Order on Motion to Strike, PLAINTIFF EEOCS EMERGENCY MOTION FOR CLARIFICATION / RECONSIDERATION RE: NOVEMBER 26, 2008 ORDER GRANTING DEFENDANTS MOTION TO STRIKE DECL. OF MARLA STERN AND PORTIONS OF THE EEOCS OPPOSITION AND EXHIBITS RELATING TO MARLA STERNS DECL. AND PURPORTED STATISTICAL ANALYSIS; GRANTING DEFENDANTS REQUEST TO STRIKE EEOD REQUEST FOR JUDICIAL NOTICE OF U.S. CENSUS 2000 DATA; AND GRANTING DEFENDANTS REQUEST FOR SANCTIONS (COURT DOCKET NO. 243); DECLARATION OF SUE J. NOH; PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 12/21/2008. (Noh, Sue) (Entered: 12/03/2008)
245 DECLARATION of Roger L. Grandgenett II In Support of Sanctions Award by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Grandgenett, Roger) (Entered: 12/03/2008)
246 MINUTES OF PROCEEDINGS - Motion Hearing held on 12/5/2008 before David A. Ezra. Defendants Republic Silver State Disposal, Inc., and Republic Services, Inc.s Motion for Summary Judgment or Summary Adjudication of Issues (Doc. # 208)-TAKEN UNDER ADVISEMENT. Defendants Motion to Strike New Portions of Plaintiffs Lacys and LaRoccas Opposition to Defendants Motion for Summary Judgment and Declaration of Gerald Benford (Doc. # 225)-TAKEN UNDER ADVISEMENT.Response to Motion for Reconsideration due by 12/10/09, limited to 10 pages.Court to issue order. Crtrm Administrator: Theresa Lam; Pla Counsel: Sue Noh, Scott B. Olifant; Def Counsel: Bruce C. Young, Roger L. Grandgenett; Court Reporter/FTR #: Araceli Bareng; Time of Hearing: 9:00am-10:10am; Courtroom: 4B; (Copies have been distributed pursuant to the NEF - Lam, Theresa) (Entered: 12/05/2008)
247 RESPONSE to 244 Emergency MOTION for District Judge to Reconsider Order re 243 Order on Motion to Strike, PLAINTIFF EEOCS EMERGENCY MOTION FOR CLARIFICATION / RECONSIDERATION RE: NOVEMBER 26, 2008 ORDER GRANTING DEFENDANTS MOTION TO STRIKE DECL. OF MARLA STERN ANDEmergency MOTION for District Judge to Reconsider Order re 243 Order on Motion to Strike, PLAINTIFF EEOCS EMERGENCY MOTION FOR CLARIFICATION / RECONSIDERATION RE: NOVEMBER 26, 2008 ORDER GRANTING DEFENDANTS MOTION TO STRIKE DECL. OF MARLA STERN ANDEmergency MOTION for District

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Judge to Reconsider Order re 243 Order on Motion to Strike, PLAINTIFF EEOCS EMERGENCY MOTION FOR CLARIFICATION / RECONSIDERATION RE: NOVEMBER 26, 2008 ORDER GRANTING DEFENDANTS MOTION TO STRIKE DECL. OF MARLA STERN AND, ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Replies due by 12/24/2008. (Grandgenett, Roger) (Entered: 12/10/2008)
248 OBJECTION to 245 Declaration ; PLAINTIFF EEOCS OBJECTIONS TO DEFENDANTS SUBMISSION OF DECLARATION OF ROGER L. GRANDGENETT IN SUPPORT OF SANCTIONS AWARD (COURT DOCKET No. 245) AND REQUEST FOR REDUCTION OF AWARD; PROOF OF SERVICE ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 12/11/2008)
250 REQUEST for Reduction of Award by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 1/2/2009. (RFJ) (MJZ). Filer modiﬁed on 12/17/08. (MJZ) (Entered: 12/17/2008)
249 REPLY to 248 Objections to Declaration or Roger L. Grandgenett in Support of Sanctions Award; and RESPONSE to 250 Request for Reduction of Award ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc. (Grandgenett, Roger) Docket entry relationship added on 12/17/08. (MJZ) Event type added on 12/17/2008. (RFJ) (Entered: 12/15/2008)
Reply Deadline as to 250 Request for Reduction of Award: Replies due by 12/29/2008. (RFJ) (Entered: 12/17/2008)
NOTICE of Docket Correction to 249 Reply - Other: ERROR: Document should have been ﬁled as two separate entries by Attorney Roger L Grandgenett ; CORRECTION: Reﬁled by Court as 250 Motion for Reduction of Award. (RFJ) (no image attached) (RFJ) (Entered: 12/17/2008)
251 TRANSCRIPT of Proceedings, 246 Motion Hearing held on December 5, 2008, before David A. Ezra. Transcriber: NW Transcripts, LLC, 208-466-4148. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 1/8/2009. Redacted Transcript Deadline set for 1/18/2009. Release of Transcript Restriction set for 3/18/2009. (EDS) (Entered: 12/18/2008)
252 ORDER: The 244 Motion for Reconsideration of 243 Order is Denied. Signed by Judge David A. Ezra on 02/12/09. (Copies have been distributed pursuant to the NEF - SRK) (Entered: 02/13/2009)
253 ORDER: The 208 Motion for Summary Judgment is Granted in part and Denied in part. The 225 Motion to Strike is Denied. Signed by Judge David A. Ezra on 02/16/09. (Copies have been distributed pursuant to the NEF - SRK) (Entered: 02/17/2009)
254 Second MOTION to Expedite (set trial et.al.) by Plaintiff William Lacy. Motion ripe 2/23/2009. (Olifant, Scott) (Entered: 02/23/2009)
255 ORDER on 254 Motion to Expedite Trial. Signed by Judge David A. Ezra on 3/5/09. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 03/06/2009)
256 First MOTION in Limine to preclude contrary evidence to the representations of Gerald Benford, PMK by Plaintiff Robert LaRocca. Responses due by 6/5/2009. (Attachments: # 1 Exhibit 1 (cover sheet), # 2 Exhibit 1, # 3 Exhibit 2 (cover sheer), # 4 Exhibit 2, # 5

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Exhibit 3 (cover sheet), # 6 Exhibit 3, # 7 Exhibit 4 (cover sheet), # 8 Exhibit 4)(Olifant, Scott) . (Entered: 05/18/2009)

05/21/2009

257 ORDER that the EEOC pay defendants the sum of $4,026 as the fees incurred in making their Motion to Strike 321 and Reply 241 . Orderdenying as moot 250 Motion for Reduction of Award. Signed by Magistrate Judge Lawrence R. Leavitt. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 05/21/2009)

05/22/2009

258 ORDER Scheduling Settlement Conference: Settlement Conference set for 7/30/2009 at 09:30 AM in Chambers before Magistrate Judge Lawrence R. Leavitt. Supplemental settlement conference statements due in Chambers by 4:00 PM on 7/23/09. Signed by Magistrate Judge Lawrence R. Leavitt on 5/22/09. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 05/22/2009)

06/05/2009

259 RESPONSE to 256 First MOTION in Limine to preclude contrary evidence to the representations of Gerald Benford, PMK, ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Replies due by 6/19/2009. (Attachments: # 1 Exhibit A)(Grandgenett, Roger) (Entered: 06/05/2009)

06/05/2009

260 RESPONSE to 256 First MOTION in Limine to preclude contrary evidence to the representations of Gerald Benford, PMK, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. and proof of service (Noh, Sue) (Entered: 06/05/2009)

06/07/2009

261 REPLY to Response to 256 First MOTION in Limine to preclude contrary evidence to the representations of Gerald Benford, PMK ; ﬁled by Plaintiff William Lacy. (Olifant, Scott) (Entered: 06/07/2009)

07/01/2009

262 NOTICE of Hearing on 256 First MOTION in Limine to preclude contrary evidence to the representations of Gerald Benford, PMK : Motion Hearing and status conference set for 7/9/2009 08:00 AM before Judge David A. Ezra. (no image attached). (Lam, Theresa) (Entered: 07/01/2009)

07/06/2009

263 STIPULATION and Proposed Order Re: Request to Change Time of the 07/09/09 Hearing by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) . (Entered: 07/06/2009)

07/09/2009

264 MINUTES OF PROCEEDINGS - 256 Motion in Limine, Status Conference held on 7/9/2009 before Judge David A. Ezra. Crtrm Administrator: T. Lam; Pla Counsel: Sue Noh, Scott Olifant; Def Counsel: Bruce Young, Roger Grandgenett; Court Reporter/FTR #: Gayle Pichierri; Time of Hearing: 8:00am-8:45am; Courtroom: 7C; denying 256 Motion in Limine. Oral arguments heard.[#256]Motion in Limine-DENIED.Status Conference held.Court to issue order (Copies have been distributed pursuant to the NEF Lam, Theresa) (Entered: 07/09/2009)

07/09/2009

265 ORDER Denying 256 First MOTION in Limine to preclude contrary evidence to the representations of Gerald Benford, PMK ﬁled by Robert LaRocca. Signed by Judge David A. Ezra on 7/9/09. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 07/09/2009)

07/31/2009

266 MINUTES OF PROCEEDINGS - Settlement Conference held on 7/31/2009 before Magistrate Judge Lawrence R. Leavitt. Pla Counsel: Anna Y. Park, Sue J. Noh and Derek W. Li for EEOC; Scott B. Olifant for plaintiffs Robert LaRocca and William Lacy, who are present; claimants Eddie Williams, Mid Jackson and Clayton Hickman are also present; Def Counsel: Bruce C. Young; in-house counsel Myndi Kort and Tim Benter also present; Time of Hearing: 9:45 a.m.; in chambers. A follow-up Settlement Conference is set for THURSDAY, 8/20/2009 09:30 AM to be completed by 1:00 p.m. in Chambers before Magistrate Judge Lawrence R. Leavitt. (Copies have been distributed pursuant to the NEF - CAP) (Entered: 07/31/2009)

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267 MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, Order on Motion to Strike; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. Responses due by 9/6/2009. (Attachments: # 1 Exhibit A-B, # 2 Exhibit C-E, # 3 Exhibit F-G)(Young, Bruce) (Entered: 08/19/2009)

08/20/2009

268 MINUTES OF PROCEEDINGS - Settlement Conference held on 8/20/2009 before Magistrate Judge Lawrence R. Leavitt. Pla Counsel: Anna Y. Park, Sue J. Noh, Derek W. Li and Elizabeth Naccarato for EEOC; Scott B. Olifant for plaintiffs Robert LaRocca and William Lacy; Def Counsel: Bruce C. Young; in-house counsel Tim Benter also present; Time of Hearing: 9:30 a.m.; in chambers; Counsel and the court met and conferred. A follow-up telephonic Status Conference set for THURSDAY 9/10/2009 10:30 AM. Counsel for plaintiff EEOC shall initiate the telephone conference call. (Copies have been distributed pursuant to the NEF - CAP) (Entered: 08/21/2009)

09/03/2009

269 STIPULATION AND [PROPOSED] ORDER EXTENDING DUE DATE FOR PLAINTIFFS OPPOSITIONS TO DEFENDANTS MOTION FOR RECONSIDERATION/REVIEW OF THE COURTS ORDER DATED FEBRUARY 17, 2009 PURSUANT TO FED. R. CIV. P. 60(b)(6) (COURT DOC. NO. 267) by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 09/03/2009)

09/03/2009

270 ORDER ON STIPULATION Granting 269 Stipulation, for time to ﬁle opposition to 267 MOTION for District Judge to Reconsider Order. Responses due by 9/22/2009. Signed by Judge David A. Ezra on 9/3/09. (Copies have been distributed pursuant to the NEF AXM) (Entered: 09/04/2009)

09/10/2009

271 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Lawrence R. Leavitt, on 9/10/2009. Settlement in Phoenix on 9/18/09. Telephonic Status Conference set for 9/23/2009 11:00 AM before Magistrate Judge Lawrence R. Leavitt. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 09/10/2009)

09/21/2009

272 Submission of PROPOSED ORDER ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc. STIPULATION AND [PROPOSED] ORDER EXTENDING DUE DATE FOR PLAINTIFFS' OPPOSITIONS TO "DEFENDANTS' MOTION FOR RECONSIDERATION/REVIEW OF THE COURT'S ORDER DATED FEBRUARY 17, 2009 PURSUANT TO FED.R.CIV.P.60(b)(6)" (COURT DOC. NO. 276) [2ND STIPULATION]. (Grandgenett, Roger) (Entered: 09/21/2009)

09/21/2009

273 ORDER ON STIPULATION Granting 272 Stipulation for time to respond to 267 MOTION for District Judge to Reconsider Order. Responses due by 9/29/2009. Signed by Judge David A. Ezra on 9/21/09. (Copies have been distributed pursuant to the NEF AXM) (Entered: 09/22/2009)

09/29/2009

274 RESPONSE to 267 MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, ﬁled by Plaintiff William Lacy. Replies due by 10/13/2009. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1 (continued), # 3 Exhibit 1 (continued and end))(Olifant, Scott) . (Entered: 09/29/2009)

09/29/2009

275 RESPONSE to 267 MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, Order on Motion to Strike , ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 10/13/2009. (Noh, Sue) . (Entered: 09/29/2009)

09/30/2009

276 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Lawrence R. Leavitt, on 9/30/2009. By Deputy Clerk: Carol DePino. Follow-up Settlement Conference is set for 11/20/2009 09:30 AM in Chambers before Magistrate Judge Lawrence R. Leavitt. (Copies have been distributed pursuant to the NEF - EDS) (Entered: 09/30/2009)

10/08/2009 277 STIPULATION re 267 MOTION for District Judge to Reconsider Order re 253 Order on

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Motion for Summary Judgment, Order on Motion to Strike MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, Order on Motion to Strike ; Extending Due Date for Defendant's Reply by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. (Grandgenett, Roger) (Entered: 10/08/2009)

10/20/2009

278 ORDER ON STIPULATION granting 277 Stipulation, for time to reply to 267 MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, Order on Motion to Strike MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, Order on Motion to Strike. Replies due by 10/20/2009. Signed by Judge David A. Ezra on 10/20/09. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 10/20/2009)

10/20/2009

279 REPLY to Response to 267 MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, Order on Motion to Strike MOTION for District Judge to Reconsider Order re 253 Order on Motion for Summary Judgment, Order on Motion to Strike ; ﬁled by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc.. DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION OR REVIEW OF THE COURT'S ORDER DATED FEBRUARY 17, 2009 PURSUANT TO FED. R. CIV. P. 60(B)(6) (Young, Bruce) (Entered: 10/20/2009)

11/20/2009

280 MINUTES OF PROCEEDINGS - Settlement Conference held on 11/20/2009 before Magistrate Judge Lawrence R. Leavitt. Pla Counsel: Anna Y. Park, Sue J. Noh and Elizabeth Naccarato for EEOC; Scott B. Olifant for plaintiffs Robert LaRocca and William Lacy; Def Counsel: Bruce C. Young; in-house counsel Tim Benter also present; Time of Hearing: 9:30 a.m.; in chambers. Counsel and the court met and conferred and a settlement agreement was reached concerning damages. Telephonic Status Conference set for FRIDAY, 1/22/2010 AT 11:00 AM before Magistrate Judge Lawrence R. Leavitt. Counsel for the EEOC will initiate the telephone conference call. (Copies have been distributed pursuant to the NEF - CAP) (Entered: 11/23/2009)

12/28/2009

281 NOTICE by Interested Party Emmanuel Washington OF FILING STATE COURT ORDER FOR JUDGMENT (Attachments: # 1 Exhibit A)(Beasley, Matthew) (Entered: 12/28/2009)

01/06/2010

282 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Lawrence R. Leavitt, on 1/6/2010. Due to a conﬂict in the court's calendar, the time for the Telephonic Status Conference presently scheduled for Friday, 1/22/10 at 11:00 a.m. is hereby rescheduled for 01:30 PM in Chambers before Magistrate Judge Lawrence R. Leavitt. Counsel for the EEOC will initiate the telephone conference call.(no image attached) (Copies have been distributed pursuant to the NEF - CAP) (Entered: 01/06/2010)

01/22/2010

283 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Lawrence R. Leavitt, on 1/22/2010. Counsel advised that drafts of the proposed consent decree have been exchanged. The EEOC requires some additional information before a consent decree can be ﬁnalized. A follow-up telephonic status conference will be held on MONDAY, FEBRUARY 22, 2010, at 10:00 A.M. Counsel for the EEOC will initiate the telephone conference call. A separate telephonic status conference concerning the ﬁnalization of the settlement with plaintiffs Lacy and LaRocca will be held on MONDAY, JANUARY 25, 2010, at 11:00 A.M. Counsel for the EEOC will initiate the telephone conference call. Mr. Tim Benter will participate in the conference. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 01/22/2010)

01/22/2010

284 MINUTES OF PROCEEDINGS - Telephonic Status Conference held on FRIDAY, 1/22/2010 before Magistrate Judge Lawrence R. Leavitt. Pla Counsel: Sue J. Noh and Scott B. Olifant; Def Counsel: Bruce C. Young; Time of Hearing: 1:30 p.m.; in chambers. See Minute Order (Doc.#283) for details. (no image attached) (Copies have been distributed pursuant to the NEF - CAP) (Entered: 01/22/2010)

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285 MINUTES OF PROCEEDINGS - Telephonic Status Conference held on 1/25/2010 before Magistrate Judge Lawrence R. Leavitt. Pla Counsel: Sue J. Noh and Scott B. Olifant; Def Counsel: Bruce C. Young with Tim Benter; Time of Hearing: 11:00 a.m.; in chambers. The court instructs counsel to complete a ﬁnal draft of the consent decree by February 9, 2010. Another follow-up Telephonic Status Conference set for TUESDAY, 2/9/2010 01:30 PM in Chambers before Magistrate Judge Lawrence R. Leavitt. Counsel for the EEOC will initiate the telephone conference call. (Copies have been distributed pursuant to the NEF - CAP) (Entered: 01/26/2010)
286 STIPULATION STIPULUATION AND [PROPOSED] ORDER RE: REQUEST FOR ONE WEEK EXTENSION RE: FEBRUARY 9, 2010 STATUS CONFERENCE AND DEADLINE TO COMPLETE FINAL DRAFT OF PROPOSED CONSENT DECREE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 01/28/2010)
287 ORDER ON STIPULATION Granting 286 Stipulation for Extension of Time to Complete the Proposed Consent Decree and for a One Week Extension of the Status Conference set for 2/9/1010. Signed by Magistrate Judge Lawrence R. Leavitt on 1/28/10. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 01/29/2010)
288 STATUS REPORT STATUS REPORT RE: MEETING OF COUNSEL FOR EEOC AND DEFENDANTS REPUBLIC SERVICES, INC. AND REPUBLIC SILVER STATE DISPOSAL, INC. RE: CONSENT DECREE NEGOTIATIONS AND REQUEST FOR 10DAY EXTENSION OF TIME TO FILE PROPOSED CONSENT DECREE; [PROPOSED] ORDER; AND PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 02/11/2010)
289 ORDER on 288 Status Report. Final consent decree is extended 10 days to 3/3/10 at 1:30pm. Signed by Magistrate Judge Lawrence R. Leavitt on 2/12/10. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 02/16/2010)
290 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Lawrence R. Leavitt, on 2/16/2010. PLEASE TAKE NOTICE that the follow-up telephonic status conference presently set for 10:00 a.m. on 2/22/10 is hereby vacated and rescheduled for WEDNESDAY, 3/3/2010 at 01:30 PM in Chambers before Magistrate Judge Lawrence R. Leavitt.(no image attached) Counsel for the EEOC will initiate the telephone conference call. (Copies have been distributed pursuant to the NEF - CAP) (Entered: 02/16/2010)
291 MINUTES OF PROCEEDINGS - Telephonic Status Conference held on Wednesday, 3/3/2010 before Magistrate Judge Lawrence R. Leavitt. Pla Counsel: Sue J. Noh and Scott Olifant; Def Counsel: Bruce C. Young; Time of Hearing: 1:30 p.m.;in chambers. Counsel advised that they are very close to an agreement on a proposed consent decree. Please see Minute Order for details and deadlines. (Copies have been distributed pursuant to the NEF - CAP) (Entered: 03/04/2010)
292 STATUS REPORT STATUS REPORT RE: CONSENT DECREE; [PROPOSED] ORDER; AND PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 03/17/2010)
293 ORDER that the deadline for EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended to 3/24/10. Signed by Magistrate Judge Lawrence R. Leavitt on 3/18/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 03/18/2010)
294 STATUS REPORT STATUS REPORT RE: CONSENT DECREE; [PROPOSED] ORDER; AND PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 03/23/2010)

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295 ORDER Denying 267 Motion for District Judge to Reconsider Order without Prejudice. Signed by Judge David A. Ezra on 3/25/10. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 03/26/2010)

03/25/2010

296 ORDER on 294 Status Report. Final Proposed Consent Decree due 3/31/10. Signed by Magistrate Judge Lawrence R. Leavitt on 3/25/10. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 03/26/2010)

03/31/2010

297 STATUS REPORT STATUS REPORT RE: CONSENT DECREE; [PROPOSED] ORDER; AND PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 03/31/2010)

04/02/2010

298 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended to 4/16/10. Signed by Magistrate Judge Lawrence R. Leavitt on 4/1/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 04/02/2010)

04/16/2010

299 STATUS REPORT RE: Consent Decree AND [Proposed] Order; by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) Modiﬁed text on 4/19/2010 (SRK). (Entered: 04/16/2010)

04/20/2010

300 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended from 4/16/10 to 4/29/10. Signed by Magistrate Judge Lawrence R. Leavitt on 4/20/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 04/20/2010)

04/28/2010

301 STATUS REPORT STATUS REPORT RE: CONSENT DECREE; [PROPOSED] ORDER; AND PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 04/28/2010)

04/30/2010

302 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended from April 29, 2010 to May 13, 2010. Signed by Magistrate Judge Lawrence R. Leavitt on 4/29/10. (Copies have been distributed pursuant to the NEF ECS) (Entered: 04/30/2010)

05/13/2010

303 STATUS REPORT STATUS REPORT RE: CONSENT DECREE; [PROPOSED] ORDER; AND PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 05/13/2010)

05/14/2010

304 ORDER Granting 303 Status Report Requesting Extension of Time to File Proposed Consent Decree. Submission of Proposed Decree due by 5/26/2010. Signed by Magistrate Judge Lawrence R. Leavitt on 5/14/10. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 05/14/2010)

05/26/2010

305 STATUS REPORT STATUS REPORT RE: CONSENT DECREE; [PROPOSED] ORDER; AND PROOF OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 05/26/2010)

05/27/2010

306 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended from 5/26/10 to 6/11/10. Signed by Magistrate Judge Lawrence R. Leavitt on 5/27/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 05/27/2010)

06/11/2010

307 STATUS REPORT re: Consent Decree; [Proposed] Order; and Proof of Service by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc., Plaintiff U.S. Equal Employment Opportunity Commission. (Young, Bruce) (Entered: 06/11/2010)

06/15/2010

308 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended to 6/23/10. Signed by Magistrate Judge Lawrence R. Leavitt on 6/15/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 06/15/2010)

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309 STATUS REPORT re: Consent Decree [Proposed] Order by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc., Plaintiff U.S. Equal Employment Opportunity Commission. (Young, Bruce) (Entered: 06/23/2010)
310 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended to 7/9/10. Signed by Magistrate Judge Lawrence R. Leavitt on 6/24/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 06/24/2010)
311 STATUS REPORT re: Consent Decree; [Proposed] Order by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc., Plaintiff U.S. Equal Employment Opportunity Commission. (Young, Bruce) (Entered: 07/09/2010)
312 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended to 8/25/2010. Signed by Magistrate Judge Lawrence R. Leavitt on 7/12/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 07/12/2010)
313 STATUS REPORT re: Consent Decree by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 08/25/2010)
314 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended to 9/9/10. Signed by Magistrate Judge Lawrence R. Leavitt on 8/26/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 08/26/2010)
315 STATUS REPORT RE: CONSENT DECREE; [PROPOSED] ORDER by Plaintiff U.S. Equal Employment Opportunity Commission. (Noh, Sue) (Entered: 09/09/2010)
316 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended from September 9, 2010 to September 16, 2010. Signed by Magistrate Judge Lawrence R. Leavitt on 9/10/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 09/10/2010)
317 STATUS REPORT re: Consent Decree; [Proposed] Order by Defendants Republic Services, Inc., Republic Silver State Disposal, Inc., Plaintiff U.S. Equal Employment Opportunity Commission. (Young, Bruce) (Entered: 09/16/2010)
318 ORDER that the deadline for the EEOC and Defendants to ﬁle the ﬁnal proposed consent decree is extended from September 16, 2010 to September 21, 2010. Signed by Magistrate Judge Lawrence R. Leavitt on 9/17/10. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 09/17/2010)
319 Submission of PROPOSED ORDER ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission [PROPOSED] CONSENT DECREE. (Noh, Sue) (Entered: 09/21/2010)
320 CONSENT DECREE in favor of U.S. Equal Employment Opportunity Commission, Robert LaRocca, and William Lacy and against Republic Services, Inc., and Republic Silver State Disposal, Inc. Signed by Judge David A. Ezra on 9/21/10. (Copies have been distributed pursuant to the NEF - ASB) (Entered: 09/22/2010)
321 LETTER from Billy Taylor. (ASB) (Entered: 02/25/2011)

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