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PAGE 2/7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION

EQUAL EMPLOYMENT OPPORTUN1TY )

COMMISSION~

)

)

Plaintiff,

)

NQV30m

ERNEST GARCIA, Intervenor-Plain'tiff,

) )

t
\ ~RK.U.S.DlSl1UCTCOU~~ i

) )

tL _. -~·--·O,.'-.t~:,P-~- ~i-Y-'-~

)

v.

)

)

UNITED PARCEL SERVICE, INC.,

)

) Civil Action No.

Defendant

) 6:01-CV-I09-C

ORDER
On this day the Court considered Defendant United Parcel Service. Inc.'s Motions to
Dismiss or in the Alternative Motions for More Definite Statement,. :filed August: 31> 2001. Plaintiff, Equal Employment Opportunity Commission, filed a Response to Defendant's Motion
on September 28,2001. Intervenor, Ernest Garcia, filed a Response to Defendant's Motion on
September 24, 2001. Defendant filed a Reply to Intervenor's Response on September 28, 2001,
and filed a Reply to Plaintiff's Response on October 5.2001. Plaintiff filed a Surreply to Defendant's Motion on October 29, 2001. After considering all relevant arguments and evidence, the Court DENIES Defendant's Motions to Dismiss or in the Alternative Motions for More Definite Statement as to both the Plaintiff and the JnteIveno!_

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PAGE 3/7

L
BACKGROUND

On July 6; 2001, Plaintiff:. Equal Employment Opportunity Commissio~ filed tlUs suit

against Dofendant, United Parcel Service> Inc., in the United States District Coun for the

Western District ofTexas, San Antonio Division. Plaintiff brought this suit under Title VII of
the Civil Rights Act of 1964 alleging unlawful employment practices on the bases ofrace and

national origin. The suit arises out of a charge filed with the Plaintiffby Ernest Garcia alleging

numerous violations of Title VII. On August 27. 2001, Intervenor7 Ernest Garcia, filed his Comphrint against Dclmdant alleging violations of Title VII. Specifically both Plaintiffand Intervenor allege that since 1998, Defendant has engaged in unlawful employment practices.

namely, maintainjng a hostile work environment, disparate treatment, and retaliatory conduct.

On August 31, Defendant filed a Motion to Transfer Venue. On October 29, 2001, the suit was transferred to the United States District Court for the Northern District ofT~ San Angelo

Division.

n.
STANDARD

A. RULE 12(B)(6) STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), motions to dismiss raise the defense of

failure to state a claim upon whioh reliefmay be granted. 1bis motion is appropriate when the

defendant or counter-defendant attacks the complaint because it fails to state a legally cognizable claim. In other words, a motion to dismiss an action for failure to state a claim "admits the facts

alleged in the complaint, but challenges plaintiff's lights to reliefbased upon those facts.» Tel-
Phonic Servs., Inc. v. TBS In/'I, Inc., 975 F.2d 1134, 1137 (5th eir. 1992).

2

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The test for determining the sufficiency of a oomplaint under Rule 12(b)(6) was set out by the United States Supreme Court in Conley v. Gibson:
rA] complaint should not be dismissed. for faihu-e to state a claim unless it appears beyond doubt that the plaintiffcan prove no set of facts in support ofhis claim which would entitle him to relief. 355 U.S. 41, 45-46 (1959); see also Grisham v. United States. 103 F.3d 24~ 25-26 (5th eir.
1997).
The Conley test is a rigorous standard, but subsumed within it is the requirement that the plaintiff state its case 'With enough clarity to enable a court or an opposing party to deteJ:m.ine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877~ 880 (5th Cir. 1989).
In a Rule 12(bX6) motion to dismiss. the allegations ofthe complaint must be taken as true. Grisham. 103 F.3d at 25. Further, the allegations in the complaint should be cOD..S1l;ued favorably to the pleader. Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189. 194 (5th Cir. 1996).
This requirement is consistent with the well-established policy that the plaintiffbe given eVerJ
opportunity to state a claim. Hitt v. City ofPasadena, 561 F.2d 606, 608 (5th Cir. 1977).
B. RULE 12(e) STANDARD
Federal Rule of Civil Procedure 12(c) is the correct avenue for seeking a more definite
statement Federal Rule ofCivil Procedure 12(e) states: Ifa pleading to which a responsive pleading is pemri.tted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. Ifthe motion is granted and the order ofthe court is not obeyed within ten (10) days after notice ofthe order or within such other time as the court may fix, the court may strike the pleading to
3

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which the motion was directed and make such order as it deems
just.
FED. R.. CIv. P. 12(e).
"IfS oomplaint is ambiguous or does not contain. sufficient infomlation to allow a
responsive pleading to be frame~ the proper remedy is a motion for a more definite statement
under Rule 12(e)." Sisk..,. Texas Parks & Wildlife Deptt~ 644 F.2d 1056,1059 (5th eir. 19&1).
Infonnation a party wishes to obtain through a motion for more definite statement should not be granted ifit can be obtained through discoveIY. Mitchell v. E-Z Way Towers. Inc., 269 F.2d 126. 132-33 (5th eil". 1959); Cross Timbers Concerned Citizens v. Saginaw, 991 F. Supp. 563,572-73 (N.D. Tex. 1997); N.D. TEX. LR 12.1 ("except for motions complaining offailure to plead fraud or mistake with particularity pursuant to FED. R. CIV. P. 9(b), a motion for more definite statement may only be filed where the infonnation sought cannot be obtained by discovery). Orders made pursuant to a motion for more definite statement under Rule 12(e) are reviewed under the abusc-<lf-&.scretion stan.dard. Ola Time Enters. v. Int'l Coffee Corp.~ 862 F.2d 1213,
1217 (5th eir. 1989) (citations omitted).
m.
DISCUSSION
Both the Plaintiffand Intervenor claim in their individual Complaints that Defendant's
conduct of falsely accu.sin.g employees ofwrongdoing, issuing conflicting work orders in
repeated attempts to anger and encourage insubordination, closely and unnecessarily scrutinizing work.. and issuing groundless reprimands resulted jn a disparatei:rea1ment ofemployees, a hostile
work environment, and retaliatory conduct all in "Violation ofTitle VII ofthe Civil Rights Act of
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1964. Both complaints specifically state that the alleged violations were because ofrace and

national origin.

Defendant contends that both Plaintiff and Intervenor's claims under Title VII should fail

and be dismissed because the claims are conclusory. This Comt disagrees. Both Plaintiff' and

Intervenor have sufficiently alleged facts from whic~ ifproved to be true. one could find that

Defendant engaged in discriminatory pxactices based upon race and national origin. Accordingly,

Defendant's Motions to Dismiss are DENIED. Additionally. the Court does not find that either

the Plaint.i.:fPs Complaint Or the Intervenor's Complaint is "so vague and ambiguous" that

Defendant C2llllot frame a responsive pleading. Defendant's Alternative Motions for a More

Definite Statement are DENIED.

I SOORDBRED

30 Dated this·

day ofNovember~ 2001

5

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 Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 1 of 9
b

\. <>,:~i~:-~;;r-~;c;i-(o( 'r~"i-------:

,'\0RTH ER:\ HlSTRICfOFTEXAS i

IN THE UNITED STATES DISTRICT OURT FOR THE NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION

J FILED :

OCT - 3 alrl

/1

EQUAL EMPLOYMENT OPPORTUNITY §

CLERK, U.S. DISTRICT COURT I

COMMISSION, Plaintiff,

§

By

I

DtpUly

§

ERNEST GARCIA,

§

Intervenor,

§ Civil Action No. 6:01-CV-I09-C

v.

§

§

UNITED PARCEL SERVICE,

§

Defendant,

§

§

INT'L BROTHERHOOD OF TEAMSTERS §

LOCAL 657,

§

Defendant.

§

PLAINTIFF'S THIRD AMENDED COMPLAINT This is ap action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the bases of race, national origin, and retaliation, and to provide appropriate relief to Charging Parties Ernest Garcia ("Garcia"), Darrell Warrick ("Warrick"), Cherri Davis Romo ("Romo") and a class of other comparably aggrieved Hispanics, a class of Blacks, and a class of individuals who suffered retaliation, all of whom were adversely affected by such unlawful practices. This complaint alleges that Defendant United Parcel Service engaged in discriminatory employment practices by subjecting Garcia, Warrick, Romo, and other employees to a hostile work environment and disparate treatment by falsely accusing Garcia, Warrick, Romo and other employees of wrongdoing, issuing conflicting work orders in repeated attempts to anger and encourage insubordination, closely and unnecessarily scrutinizing work, and issuing groundless reprimands. This complaint further alleges that the harassment was carried out with the intent of forcing Hispanic and Black employees, and other
1

Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 2 of 9
employees who made complaints ofdiscrimination, opposed discriminatory treatment ofco-workers, and/or participated in reporting or serving as witnesses to grievances of discrimination, to resign their positions. Garcia and other comparably aggrieved individuals were compelled to resign because of the intolerable work environment created by UPS supervisors. Warrick was refused rehire while similarly situated, non-Black employees were not. Romo opposed discriminatory treatment of co-workers, participated in reporting or serving as a witness to grievances of discrimination, and, as a result, was forced to resign her position. Moreover, Defendant United Parcel Service failed to preserve personnel records as required by law.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to section 706(0(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §2000e-5(f)(I) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.c. § 1981a. 2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Texas, San Angelo Division and the United States District Court for the Western District ofTexas, San Antonio Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(0(1) and (3) of Title VII, 42 U.S.c. §2000e-5(0(1) and (3).
2

Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 3 of 9
4. At all relevant times, Defendant, United Parcel Service ("UPS"), has continuously been an Ohio corporation doing business in the State of Texas and has continuously had at least 15 employees.
5. At all relevant times, Defendant UPS has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VIT, 42 U.S.C. §§2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Garcia filed a charge with the Commission alleging violations of Title VIT. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. More than thirty days prior to the institution of this lawsuit, Warrick filed a charge with the Commission alleging violations of Title VIT. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. More than thirty days prior to the institution of this lawsuit, Romo filed a charge with the Commission alleging violations of Title VIT. All conditions precedent to the institution of this lawsuit have been fulfilled. 9. Since at least 1998, Defendant UPS has engaged in unlawful employment practices at its San Angelo, Texas, facility, and its San Antonio, Texas District Office, in violation of Section 703(a) of Title VIT, 42 U.S.c. §2000e-2(a) and Section 704(a) of Title VIT, 42 U.S.c. §2000e-3(a). These practices include the following: A. Defendant UPS maintained a hostile work environment in its San Angelo,
Texas facility wherein Hispanic employees were falsely accused of wrongdoing, issued conflicting work orders in repeated attempts to anger and
3

Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 4 of 9
encourage insubordination, subjected to unnecessary scrutiny of their work, and made the target of groundless reprimands with the intent of forcing the Hispanic employees to resign based on their national origin. Due to the harassment, several Hispanic employees were forced to resign;
B. Defendant UPS maintained a hostile work environment in its San Angelo, Texas facility wherein Black employees were falsely accused of wrongdoing, issued conflicting work orders in repeated attempts to anger and encourage insubordination, subjected to unnecessary scrutiny of their work, and made the target of groundless reprimands with the intent of forcing the Black employees to resign based on their race. Due to the harassment, several Black employees were forced to resign;
C. Defendant UPS subjected Hispanic employees to disparate treatment at its San Angelo, Texas facility by intentionally targeting the Hispanic employees for reprimands, extra job duties and false accusations of wrongdoing. Other similarly situated White employees, who were actually guilty of misconduct or infractions, were not disciplined, much less targeted for termination, or discharged, due to their poor work quality. The disparate treatment in the terms and conditions of their employment forced several Hispanic employees to resign;
D. Defendant UPS subjected Black employees to disparate treatment at its San Angelo, Texas facility by intentionally targeting the Black employees for reprimands, extra job duties and false accusations of wrongdoing. Other similarly situated White employees, who were actually guilty of misconduct or infractions, were not disciplined, much less targeted for termination, or discharged, due to their poor work quality. The disparate treatment in the terms and conditions of their employment forced the Black employees to resign or resulted in their discharge and failure to rehire;
E. Defendant UPS retaliated against several of its employees who brought allegations of discrimination, opposed discriminatory treatment of coworkers, and/or participated in reporting or serving as witnesses to grievances of discrimination by subjecting the employees to reprimands, extra job duties and false accusations of wrongdoing. Due to the harassment, these employees were forced to resign; and,
F. Members of Defendant UPS management, at both its San Angelo, Texas facility and San Antonio, Texas District Office, allowed the discrimination complained of in paragraph 9(a)-(e) to go unaddressed despite repeated complaints by Garcia, Warrick, Romo and other class members.
4

Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 5 of 9
10. The effect of the practices complained of in paragraph 9 above has been to deprive Garcia, a class of other comparably aggrieved Hispanic employees, Warrick, a class of other comparably aggrieved Black employees, and Romo and a class of other comparably aggrieved employees who were retaliated against after making allegations of discrimination, opposing discriminatory treatment of co-workers, and/or participating in reporting or serving as witnesses to grievances of discrimination, of equal employment opportunities and otherwise adversely affect their status as employees because of race, national origin, and/or in retaliation for opposition to discriminatory treatment.
11. Since at least 1998, Defendant UPS has failed, in violation of Section 709(c) of Title VII, 42 U.S.c. §2000e-8(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed and required by the Commission as necessary to the Commission's administration of Title VII.
12. The unlawful employment practices complained of in paragraph 9 above were and are intentional.
13. The unlawful employment practices complained of in paragraph 9 above were and are done with malice or with reckless indifference to the federally protected rights of Garcia, a class
,
of other comparably aggrieved Hispanic employees, Warrick, a class of Black employees, and Romo and a class of employees who were retaliated against after making allegations of discrimination, opposing discriminatory treatment of co-workers, and/or participating in reporting or serving as witnesses to grievances of discrimination.
PRA YER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:
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Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 6 of 9
A. Grant a permanent injunction enjoining Defendant UPS, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in discriminatory employment practices which discriminate on the bases of race, national origin, and retaliation;
B. Order Defendant UPS to institute and carry out policies, practices, and programs which provide equal employment opportunities for Hispanics, African-Americans and employees who oppose discriminatory employment practices, and which eradicate the effects of its past and present unlawful employment practices;
C. Order Defendant UPS to make whole all individuals adversely affected by the unlawful practices described above, including Garcia, Warrick, Romo, and any other past or present Hispanic employee, Black employee, or employee who opposed discriminatory employment practices, who was subjected to the hostile work environment and/or disparate treatment caused by Defendant UPS and was compelled to resign, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmati ve relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to reinstatement of Garcia, Warrick, Romo and other aggrieved individuals, or front pay in lieu thereof;
D. Order Defendant UPS to make whole Garcia, Warrick, Romo and any other past or present Hispanic employee, Black employee, or employee who opposed discriminatory employment practices who was subjected to the hostile work environment and/or disparate treatment because of Defendant UPS' discriminatory employment practices, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 9 above, including, but not limited to job search expenses, relocation expenses, and medical expenses, in amounts to be determined at trial;
6

Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 7 of 9

E. Order Defendant UPS to make whole Garcia, Warrick, Romo, and any other past or

present Hispanic employee, Black employee, or employee who opposed discriminatory employment

practices who was subjected to the hostile work environment and/or disparate treatment because of

Defendant UPS' discriminatory employment practices, by providing compensation for past and

future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 9

above, including, but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of

life, and humiliation, in amounts to be determined at trial;

F. Order Defendant UPS to pay punitive damages for its malicious and reckless conduct

described in paragraph 9 above, in amounts to be determined at trial;

G. Order Defendant UPS to make and preserve all records, in accordance with the

provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.c. §2000e-8(c),

relevant to the determination of whether unlawful employment practices have been or are being

committed;

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

interest; and,

1.

Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its complaint.

DATED: September 20, 2002

Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel ROBERT B. HARWIN
7

Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 8 of 9
Regional Attorney District of Columbia State Bar No. 076083
Trial Attorney Texas State Bar No. 00790420
EQUALENWLOYMENTOPPORTUNITY COMMISSION
San Antonio District Office 5410 Fredericksburg Road Suite 200 San Antonio, Texas 78229-3555 (210) 281-7619 (210) 281-7669 (Fax) ATTORNEYS FOR PLAINTIFF
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Case 6:01-cv-00109 Document 69 Filed 10/03/2002 Page 9 of 9

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Plaintiff's Third Amended Complaint has been sent via
u.s. mail on this the 20th day of September, 2002, to:

Counsel for Defendant UPS, Ms. Kris Bird AKIN, GUMP, STRAUSS, HAUER & FELD 300 Convent, Suite 1500 San Antonio, Texas 78205

Counsel for Intervenor, Mr. Thad Harkins HARKINS, LATIMER & DAHL 405 N. St. Mary's Street, Suite 242 San Antonio, Texas 78205

Counsel for Defendant Local 657,

James L. Hicks, Jr.

J 1 JAMES L. HICKS, JR. P.C.

2777 N. Stemmans Freeway, Suite ll~

Dallas, Texas 75207-2284

It~

~

CY HIA M. 1\.NO

9

 
 MAR-03-03 11,20 FROM,US DISTRICT CLERK

10,8064727639

PAGE 3/17

lJ.S- OfSTRICT COURT

IN THE UNITED STATES DISTRICT C

NORTHER:'\l DISTRICT OF TEXAS
FILED

FOR THE NORTHERN DISTRICT OF T~~

SAN ANGELO DMSION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION, ct al.,

)

CLER~ u.s. DISTRICT COURT

."';:, By

..

Deput~·

)

Plaintiffs,

)

}

Y.

)

)

UNITED PARCEL SERVICE, INC., et al., )

) Civil Action No.

Defendants.

) 6:01-CV-I09-C

ORDER
On this day the Court considered Defendant, United Parcel Service, Inc. 's Motion for
Summary Judg;men4 filed January 22,2003. PlaintU:I: Bqual Employment Opportunity
Commission, :filed a Response to Defendant's Motion on February 11,2003. Intervenor, Ernest Garcia, filed a Response to Defendant's Motion on February II, 2003. Defendant filed a Reply to Plaintiff's and Iiltervenor's Responses on February 26,2003. The Court also considered Plahltiff and Intervenor's Motion for Partial Summary Judgment filed on January 22, 2003_
Defendant filed a Response to the Plaintiff and Intervenor's Motion on Februaty 11, 2003.
Plaintiffand Intervenor did not file a Reply to Defendant's Response. After considering all relevant arguments and evidence~ the Court DENIES in part and
GRANTS in part Defendant~s Motion for Summary Judgment and DENIES Plaintiff and Intervenor's Motion for Partial Summary Judgment. In addition, in Defendant's Reply,
Defendant requests that the Court strike the declarations submitted by Plaintiff and Intervenor in
their Responses to Defendant's Motion for Summary Judgment. After reviewing the evidence,

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the COurt Deu:ies as Moot Defendant's request. This Comt did not consider any of the declarations submitted by Plafutiff and Intervenor, as conc1usory allegations and denials, speculation, improbable inferences. unsubstantiated assertions. and legalistic argumentation are not adequate substitutes for specific facts showing that therc is a genuine issue for trial
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v.
R«ile, 10 F.3d 1093, 1097 (5th CiT. 1993). L
BACKGROUND On July 6, 2001, Plaintift Equal Employment Opportunity Connnisslon, filed this suit against Defendant, United Parcel Services, Inc., in the U.S. Disoict Court, Western District of
vn Texas, San Antonio Division. PIaintiffbrought this suit under Title of the Civil Rights Act
of 1964 alleging unlawful emplo)lIIlmt p~ces on the bases ofr~ and national origin. The suit arises out of a charge filed with the PIamtiffby Ernest Garcia alleging numerous violations
ofTitle vn. On August 27, 20017 Intervenor, Ernest Garcia, filed his Complaint against
Defendant alleging violations ofTitle VII. Specifically, both Plaintiffand Intervenor allege that since 1998, Defenda:at has engaged in unlawful e.mployment practices, namely maintaining a hostile work environment, disparate treatment, and retaliatory conduct. On August 31, 2001, Defendant tiled a Motion to Transfer Venue. On October 29,2001, the suit was transferred to the U.S. District COUlt, Northern Distriet of Texas, San Angelo Division.
n.
STANDARD Summary judgment is appropriate only if"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affida'Vits, ifany"- when viewed in the
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light most favorable to the nOll-moving party, "show that there is: no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter oflaw/' Anderson v. Liberty Lobby. Inc.• '477 U.S. 242.247 (1986) (internal quotations omitted). A clispute about a
material fact is ,cgen.uinc" iftho evidence is such that a reasonable jury could retmn a verdict for
the non-moving party. Id. at 248. In making its detemrination, the court must draw all justifiable
inferences in favor of the non-moving party. Id. at 2SS. Once the moving party has:initially
shown "that there is'an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). the non-movant must come forward, after adequate
ti:rne for discovery, with Significant probativo evidence showing a triable issue of fact. FED. R.
av. P. 56(e); State Farm Life Ins. Co. v. Guttennan, 896 F.2d 116, 118 (5th Cir. 1990),
Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'll, 79 F.3d 1415, 1428
(5th err. 1996) (en banc)~ SEC v. Recife, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a
properly supported motion for summary judgment, the non-movant must present more than a
mere sci:ntilla of evidenoe. See Anderson. 477 U.s. at 2S1. Rather, the non-movant must present
sufficient evidence upon which a jury could reasonably find in the non-movant's favor. ld ill.
DISCUSSION As an initial matter, this Court must determine whether the Court should analyze: the allegations o( each individual claimant to detemrine the viability of each cause of action as to c~h. or whether this Court should analyze the environment as a. whole. This Court has not
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found any detemrin.ative guidance on the issue ofwhether this Court should take a conglomerate or independent view oftbe work environment in an enforcement action brought by the EEOC on behalf ofmultiple claimants. However. this Court does find instructive the Supreme Com's clear directive that :in BEOC enforcement actions, the EEOC may seek classwide relief without being certified as the class representative. See Gen. Tel. Co. ofthe N. W. v. EEOC, 446 U.S. 318, 323-24 (1980). The Supreme Court held in General Telephone Co. that an EEOC enforcement action is akin to a class action in that the EEOC can bring suit in its own name to secme relief for a group ofaggrieved mdividuals; howe-ver. the EEOC need not comply with the requirements of Federal Rule of Civil Proc;edure 23, which defines and specifies requirements for a private party plaintiffin bringing class action litigatioll. ld. at 323-36. Because an EEOC enforcement action is akin to a class action filed on behalf ofthe named claimants and those simiI.a:rly situated. in which the EEOC may seek classwide relief, this Coun concludes that it should ~I:W the work environment in this case similarly to its review of any class action, as it affects the aggrieved
panies as a whole, not as individuals.
National Orip DiscriminationIHarassmentIHostUe Work Enviropment
vn Title creates a priVate right of action against employers who engage 1n unlawful
employment practices and provides as follows: It shall be an unlawful employment practice for an employer-
(I) to fail or refuse to hire or to di.seharge any individ~ or otherwise to
discriminate against any individual with respect to his compensation,
temis, conditions, or privileges of employment, because ofsuch
individual's race. color. religion, sex. or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
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employment opportunities or ot:hen;;is.e adversely affect his status as an employee, because of such indiYidual's race, color, religion, sex, or
national origin.
42 U.S.C. § 2000e-2 (2000).
A plaintiffmay ostablish a. violation of Title vn by using either direct e'Vidence of
discrimination, statistical proof, or circumstantial evidence. Urbano v. Continental Airlines, Inc.,
138 F.3d 204,206 (5th err. 1998). Absent direct e-vidence of discrimin.ation based on national
origin, a plaintiff may establish unlawful :national origin discrimination under the basic
:framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Under the McDonnell Douglas framework, the order ofprogression for proving up a
Title VII cla:im of discrimination is controned by the following:
1. The plaintiffhas the burden ofproving by.a preponderance ofthe evidence a prima facie case of discrimination;
2. Ifthe plaintiffsucceeds in proving the prima facie case, the burden shifts to .the defendant to articulate some legitimate, nonruscriminatory reason for the employee's temrination;
3. Should the defendant carry this burden, the p1a:intiffnmst them have an opportunity to prove by a preponderance of tbe evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
See Smith v. Wal-Mart Stores (No. 471),891 F.2d 1177~ 1178 (5th Cir. 1990) (citing Texas Dep't
ofCmty. Affairs v. Burdine. 450 U.S. 248.252-53 (1981». See also Byers v. Dallas Morning
N~. Inc., 209 F.3d419) 425-26 (5th Cir. 2000).

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Plaintif['g Prima Facie Case To establish a prima facie case ofnational origin discriminationlhatassmentlhostile work environment, Plaintiffand Intervenor must show (1) that the claimants belong to a protected group; (2) that the c:tannants were subject to unwelcome harassment; (3) that the harassment complained ofwas based upon the claimants' national origin; and (4) that the alleged harassment affected a term, condition, or privilege of employment. See Watts v. Kroger. 170 F.3d 50S. 509 (5th Cir. 2000). To survive surmnazy judgment, Plaintiff and Intervenor must create a fact issue on each ofthe elements of a hostile work environment claim: (1) racially discriminatory intUnidation, ridicule, and insuhs that are (2) sufficiently severe or pervasive that they (3) alter the conditions
of employment and (4) create an abusive working environment. DeAngelis v. El Paso Mun.
Police Officers Ass 'n, .51 F.3d .591,594 (5th Cir. 1995). "A hostile work environment requires the presence of a work environment that a
reasonable person would find hostile or abusive." ld. 'Whether an environment is. hostile or abusive depends on the totality of circumstances, focusing on factors such as ('the frequency of the conduct, the severity of the conduct. the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's
work performance." ld. at 523-24. The Fifth Circuit bas established that Title VII was meant to
bar severe and pervasive conduct that destroys a protected dassmember's opportunity to succeed at work. Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). Conduct that sporadica1Jy wounds or offends someone but that does not hinder that person's performance is not actionable under Title VII. ld.
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4'[O]fthand comments ... (unless extremely serious) will not axoount to discriminatory changes in the terms 'and conditions ofemployment." Faragher v. City ofBoca Raton, 524 U.S.
vn 775. 788 (1998) (:internal quotations omitted). Title is not a "general civility code" and,
"properly applil;:d, ... will filter out compIalnts ... such as the sporadic use of ... gender-related
jokesO and occasional teasing." Id. The "conduct must be extreme." [d. A "mere utterance of an ... epithet which engenders offensive feelings" is insufficient, without more, to support Title VII liability. Weller. 84 F.3d 194.
As a predicate matter in the instant case, this Court notes that Plaintifrs Complaint alleges that Defendant engaged in a pattern and practice that harassed and discriminated against the claimants on account oftheir national origjn. Plamtiff's and Intervenor's Complaints also allege that Defendant created a hostile work enw-omne:nt for the cJ.aim.ants on account of their
national origin and race.'
The Court is satisfied that the claimants have met the first prong of their prima facie
case-all the claimants belong to a protected class. The Court will now turn'to the remain;ng
elements ofthe claimants' prima facie case. To satisty the second prong of their prima facie case, the clalmants must establish that they were subject to unwelcome harassment.
Plaintiffand Intervenor have presented evidence that the UPS center manager in San Angelo would use the word ')neskin" all the time when referring to Hispanic employees. In addition, there is ev"idcn.ce that the UPS center manager, as well as other supervisors, used racial slurs in conversations with other white employees. The evidence also establishes that the UPS center manager in San Angelo admitted that he had stated that there were already too many "meskins" working at the UPS San Angelo center in response to a Hispanic woman's application
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for employment. There is also evidence establishing that the UPS center manager in San Angelo used the term. "nigger" to describe African Americans and "wetback" and "pepper-bellies" to descnbe Hispanics. Plaintiff and Intervenor have also submitted evidence that there were numerous other incidents of conduct that affected the claimantsr this Court is unce:rta:in whether that behavior constituted sufficiently severe harassment to support Plaintiffand Intervenor's claim. Because this determination rests substantially on credibility assessments, this Court concludes that Plamtiff' and Intervenor have raised at least a question of fact on the issue of whether the alleged behavior created a hostile work environment for the clalmants.
This Court finds that a. fact question exists as to whether the above-mentioned comments and gestures, while not physically threatening to claimants, were frequent and extreme, were severe and pervasive, and were humiliating. Additionally, this Court finds that a fact question exists as to whether the comments and gestures interfered with the claima:nts' work performance and created an abusive working environment. Accordingly, this Court js of the opinion that SUll1IIlafY judgment is not warranted as to Plaintiff's and Intervenor's national origin/hostile work environment claims. Defendant's Motion for Summary Judgment as to this claim is DENIED. Title VB Retaliation Claim
The Court finds that the Defendant is not entitled to summary judgment as to Plaintiff's and Intervenor's Tffie VII retaliation claims. A three-step process is used to analyze Plaintiff's and Intervenor's claims of discriminatory retaliation. Mattern v. Eastman Kodak, 104 F.3d 702,
705 (5th eir. 1997); Shirley v. Chrysler First, 970 F.2d 39,42 (5th eir. 1992). In order for
Plaintiff and Intervenor to establish a prima facie case of retaliation. it nmst be shown that (I) the claimants engaged in an activity protected under Title Vll; (2) an adverse employment action
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occurred; and (3) there was a causal connection between the protected activity and the adverse employment action. Mattern, 104 F.3d at 705; Shirley, 970 F.2rl at 42.
An employee has engaged in a "protected activity" when ''he has opposed any practice
made an unlawful employment practice ... or beoause he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 28 U.S.C. § 2000e-3(a) (1994). "Activities protected under Title VII fall into two broad categories-opposition and participation." Douglas v. DynMcDermott Petroleum Operations Co.,
144 F.3d 364, 372 (5th Cir. 1998). Fifth Circuit"prc~cdcnt employs a "balancing test'~ to determine whether an employee's
activities are protected under Title VII. ld. at 373. U[TJhe employer's right to run his business must be balanced against the rights of the employee to express his grievances and promote his own welfare." ld. (internal quotations omitted). 'The yardstick used to xncMUre the employee's conduct is ''the fleXIble and protean doctrine of 'reasonableness in [the] light ofthe
c1rCUIIJStcmces. ,,, ld. at 374.
''Not all activities taken in opposition to an employer's perceived discriminatory practices, however~ remain insulated fromrepris.al under Title vn~s shield." ld. at 373. "[S]ome conduct, even though engaged in with the most sincere ofintentions, may be so inappropriate as to justify the curtailment ofstarutorily-afforded [sic] safeguards." ld. See also Jones v. Flagship Int'l, 793 F.2d 714, 727 (5th Cir. 1986) (finding that the employee's conduct in Fotest afan unlawful employment practice so interfered with the performance afthe employee·s job that it rendered the employee ineffective in the position for which he was employed; and, in such case, the employee's fOlm ofopposition was not covered under Title VII); Rosser v. Laborers' Int'Z
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Union olN. Am., Local No. 438,616 F.2d 221. 224 (5th eir. 1980) (agreeing that plaintiffwas fired in retaliation but finding that plaintiff's opposition activity, which consisted ofseeking her boss's job through the union elections, was unprotected under Title VII); Jeffries v. Harris County Cmty. Action Ass'n7 615 F.2d 1025, 1036 (5th CiA. 1980) (detemDning that plaintifPs dissemination ofconfidential employment records calling attention to plaintiff's beliefthat she was a victim ofdiscrimination was clearly unreasonable and that plaintiffwas legitimately discharged).
Here. the summary judgment evidence establishes that the claimants complained on
numerous occasions, to the union steward as wen as othel'" members of management. This Court
finds that the c1aimants engaged in a protected actiVity under Title VII and satisfied the first
prong ofthe Title vn retaliation claim See Green v. Administrators a/Tulane Ed. Fund. 284
F.3d 642, 6~7 (5th Cir. '2002)(tinding that plaint.ifP:s act ofmaking complaints to defendant's
pe.rsonne) department was legally sufficient for a claim ofretaliation and was protected by Title
VII). To establish the second prong of the Title VII retaliation claim, it must be shown that an
adverse entployment action occurred. Some of the claimants were indeed fired; however, some
ofthe claUnants resigned from their employment with UPS. Defendant argues that not all ofthe claimants can prove an adverse employment action occurred. The Plaintiff and Intervenor argue
that some ofthe cl2.rima:n.ts were constructively discharged.
Constructive discharge occurs when an employer makes working conditions so intolerable that a Teasonable employee would feel compelled to resign. Hunt v. Rapides Healthcare Sys., Inc., 277 F.3d 757,771 (5th Cir. 2001); Faruld v. Parsons, 123 F.3d 315,319
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(5th eir. 1997). For the claiwants to prove constructive discharge, the claimants "must
demonstrate a greater severity or pervasiveness of harassment» than the minimum required to prove a national originJhostile work. environment claim. Weller v. Citation Oil & Gas Corp., 84
F.3d 191, 195 (5th Cir. 1996).
Having reviewed the evidence in the light most favorable to Plaintiff and Intervenor and making all justifiable inferences in Plainti.f.rs and Intervenor's favor, this Court finds that Plaintiff and Intervenor have offered evidence raising a genuine question of material fact regarding intolerable working conditions to support their claims for consTlUctive discharge.
Plaintiff and Intervenor ha.ve pr.esented evidence ofracial slurs being used by the UPS center manager for San Angelo discussed supra. In addition, Plaintiff and Intervenor have presented e'Vidence from the claimants wherein they felt that they were subjected to reprimand and or threats of discharge on a daily basis. Some claimants also clann that they felt they bad no choice but to resign. The evidence also suggests that many ofthe claimants feh they were being set up to fail by being assigned too nmch work.
Accordingly, because there exists a fact question as to whether or not there existed intolerable conditions or a greater severity or pervasiveness of harassment than that which is required to prove a hostile work environment, this Court finds that summary judgment is not appropriate with respect to said claim.. Defendant's Motion for Summary Judgment on this :issue is DENIED.

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D'isJ)arate Treatment
Plaintiff and Intervenor contend that Defendant's treatment ofwhite employees is preferential and allege that claimants were discharged when white employees who ,did the same
thing were not discharged The Plaintiff and Intervenor also argue that the white employees were
not disciplined or set up to fail, but that Hispanic and African American employees were. To establish a prima facie claim ofdisc:cinrination. Plaintiff and Intervenor must establish
that (1) the claimants belong to a protected gTOup; (2) the claimants were qualified for the position held; (3) the claimants suffered an adverse employment action; and (4) others who were
similarly situated to the claimants and not within their protected class were treated more favorably. Ward v. Bechtel Corp., 102 F.3d 199,202 (5th eir. 1997). To raiSe an inference of disparate treatment, the claimants must provide evidence that they were treated less favorably than similarly situated white employees under circumstances that arc "essentially idetttical.·' Barnes v. Yellow Freight Sys.• Inc.• 778 F.2d 1096, 1101 (5th Cir. 1985). If the claimants establish a pri:roa facie case, the claim is evaluated under the fauuliar three-part McDon.nell Douglas burden-shifting framework discussed supra.
The parties do not dispute that the claimants, Hispanic and Afiican American employees, are members of a protected class, and that the claimants were qualified for the positions held.
Thus. the first two elements ofthe prima facie case have been met. As to the third clement, the Plaintiff'and Intervenor argue that an adverse employment
action occurred: some of the c1aimants were:fired and some ofthem were constructively discharged. On the other hand. the Defendant argues that none ofthe claimants was

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constructively discharged; and with regard to the claimants who were fire<l they were fired for non-pretextual reasons.
As discussed supra.. a fact question exists as to whether or not any ofthe claimants were
constructively discharged. Because a fact question exists, summary judgment on this issue is
inappropriate. Defendant's Motion for Summary Judgment on this issue is DENIED.
Record Retention Violation
In Plaintiff's Third Amended Complalnt, Plaintiff alleges that Defendant has failed in
violation of Section 709(c) ofTitle VII, ''to make and preserve records relevant to the
cktcrmination ofwhether unla:wful employment practices have been or are being cormnitted and
required by the Connnission as necessary to the Commission's adnri:nistration of Title VII." Defendant argues that this was a misunder$tanding and that the matter has been resolved.
After reviewing the relevant evidence, the Court is satisfied that Defendant is not in
violation ofSection 709(c) ofTitle vn and that the misunderstanding has been resolved. Thus,
summary judgment is appropriate on this issue. EDerthlFara&her Affirmative Defense
The P1a.intiff and Intervenor contend that the Defendant cannot assert the Ellerthl Faragher affirmative defense because it did not exercise reasonable care to prevent the harassment at issue or provide remedies so that its employees might otherwise avoid harm Specifically, the Plaintiff and Intervenor allege that an ineffective union grievance procedure was used by Defendant.
"An e:rnployer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee.?)
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Faragherv. City ofBoca Raton, 524 U.S. 775, 807 (1975). However, when no tangIble employment action has been shown, an employer is entitled to raise an affirmative defense to such a claim. The two elements ofthis affirmative defense are: (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the claimants unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher. 524 U.S. at 807. Prooftbat an employer promulgated a sufficient anti-harassment policy with an effective complaint procedure is not necessary in evezy instance to satisfy the first prong of the affirmative defense. Id. However) the
adequacy of any stated policy and its corresponding complaint procedure is a relevant
consideration for the trier of fact in its evaluation ofthe employer"s reasonable care to be exercised under this prong. Id- at 807-808.
The Supreme Court has promulga.ted a minimum rcqun-ement for an anti-harassment policy's complaint procedure to be considered effective. The Supreme Court has stated that
employers must "establish a complaint procedure 'designed to encourage victims ofharassment
to come forward [without requiring] a victim to complain first to the offending supervisor.'" Fart:lghu, 524 U.S. at 806.
This Court concludes that the detennination whether the Defendant's existing policy and complaint procedure are adequate is one offact for the jury to decide. Additionally, to be entitled to summary judgment on this affirmative defense~ Plaintiff and Intervenor must establish that Defendant cannot meet its burden ofproof under the second prong~ as well as under the first prong. Under the second prong of its affirmative defense, Defendant must show the claimants unreasonably failed to take advantage of any preventative or corrective opportunities provided by
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it or to avoid bann otherwise. Consequently, the Plaintiffand Intervenor must show that there is

no genuine issue ofmaterial fact under this prong and, as a matter oflaw, Defendant cannot

satisfY its burden. Plaintiffand Intervenor cannot meet this summaxy judgment burden ofproof

because the summary judgment evidence shows that some of the claimants failed to take any

steps to complain about or to report t.b.c discriminatory conduct. This creates a galUine issue of

material fact whether Defendant can satisfy its burden ofproofunder the second prong ofthis

affinnative defense. Accordingly, Plaintiff and Intervenor>s Motion for Partial Summary

Judgment on Defendant's affirmative defense is DENIED.

CONCLUSION

After considering all the relevant arguments and evidence, this Coun GRANTS

Defendant's Motion for Summary Judgment with respect to Plaintiff's and Intervenor's record

retention viola.tion claim and DENIES Defendant's Motion for Swmnary Judgment with respect

to (1) Title VII national origin discriminationiharassmentlhostIle work environment claims; (2)

Title VII retaliation claim; and (3) Title VII disparate treatment clahn. 'This Court also DENIES

Plaintiff and Intervenor>s Motion for Partial Slum~1'

5 4 SO ORDERED this

day of--+-J3OF-'-'------=-=----:-----7 2003.

,

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 ll.S. DISTRICT COLIRT NOHTHERN DISTRICfOFTEXAS
FILED

IN THE UNITED STATES DISTRICT C URT

I".i - 7 2003

FOR THE NORTHERN DISTRICT OF T XAS

SAN ANGELO DIVISION

CLERK. U.S. D1STRICTCOVRT
By ____ _ ~-- ______

Dtputy

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION, et al.,

)

)

Plaintiff,

)

)

v.

)

)

UNITED PARCEL SERVICE, INC., et al., )

) Civil Action No.

Defendants.

) 6:01-CV-109-C

COURT'S CHARGE TO THE JURY AND JURY VERDICT
MEMBERS OF THE JURY: Now that you have heard all of the evidence, it becomes my duty to give you the
instructions of the Court concerning the law applicable to this case. It is your duty as jurors to follow the law as I shall state it to you and to apply that law to
the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me.
Regardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base a verdict upon any view of the law other than that given in the instructions of the Court, just as it would also be a violation of your sworn duty, as judges of the facts, to base a verdict upon anything other than the evidence in the case.
In deciding the facts of this case, you must not be swayed by bias or prejudice or favor as to any party. Our system of law does not permit jurors to be governed by prejudice or sympathy

or public opinion. Both the parties and the public expect that you will carefully and impartially consider all of the evidence in the case, follow the law as stated by the Court, and reach a just verdict regardless ofthe consequences.
This case should be considered and decided by you as an action between persons of equal standing in the community, and holding the same or similar stations in life. A corporation is entitled to the same fair trial at your hands as is a private individual. The law is no respecter of persons, and all persons, including corporations, stand equal before the law and are to be dealt with as equals in a court ofjustice.
When a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the corporation by his acts and declarations made while acting within the scope of his authority delegated to him by the corporation, or within the scope of his duties as an employee of the corporation.
As stated earlier, it is your duty to determine the facts, and in so doing you must consider only the evidence I have admitted in the case. The term "evidence" includes the sworn testimony of the witnesses and the exhibits admitted in the record.
Remember that any statements, objections, or arguments made by the lawyers are not evidence in the case. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case and, in so doing, to call your attention to certain facts or inferences that might otherwise escape your notice.
In the final analysis, however, it is your own recollection and interpretation of the
evidence that controls in the case. What the lawyers say is not binding upon you.

Generally speaking, there are two types of evidence which a jury may consider in properly finding the truth as to the facts in this case. One is direct evidence-such as testimony of an eyewitness. The other is indirect or circumstantial evidence-the proof of a chain of circumstances which points to the existence or nonexistence of certain facts. As a general rule, the law makes no distinction between direct and circumstantial evidence but simply requires that the jury find the facts from a preponderance of all the evidence, both direct and circumstantial.
So, while you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of connnon experience. In other words, you may make deductions and reach conclusions which reason and connnon sense lead you to draw from the facts which have been established by the testimony and evidence in the case.
Now, I have said that you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate.
You are the sole judges of the credibility or "believability" of each witness and the weight to be given to his testimony. In weighing the testimony of a witness, you should consider his relationship to the plaintiff or to the defendant; his interest, if any, in the outcome of the case; his manner oftestitying; his opportunity to observe or acquire knowledge concerning the facts about which he testified; his candor, fairness, and intelligence; and the extent to which he has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part.
Also, the weight of the evidence is not necessarily determined by the number ofwitnesses testifying as to the existence or non-existence of any fact. You may find that the testimony of a

smaller number ofwitnesses as to any fact is more credible than the testimony of a larger number ofwitnesses to the contrary.

During the trial of this case, certain testimony has been presented to you by way of sunnnaries of depositions, consisting of sworn answers to questions asked of the witness in advance of trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason, cannot be present to testify from the witness stand, is usually presented in the form of a deposition. Such testimony is entitled to the same consideration and is to be judged as to credibility, and weighed, and otherwise considered by the jury in the same way, insofar as possible, as if the witness had been present and had given from the witness stand the same testimony as given in the deposition.

The burden is on a party in a civil action such as this to prove every essential element of his claim by a "preponderance of the evidence." A preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in your minds a belief that what is sought to be proved is more likely true than not true. In other words, to establish a claim by a "preponderance of the evidence" merely means to prove that the claim is more likely so than not so.
In determining whether any fact in issue has been proved by a preponderance of the evidence, the jury may consider the testimony of all the witnesses, regardless of who may have called them, and all the exhibits received in evidence, regardless of who may have introduced them If the proof should fail to establish any essential element ofa party's claim by a preponderance of the evidence, the jury should find for the opposing party as to that claim.
A witness may be "impeached" or discredited by contradictory evidence, by a showing that he testified falsely concerning a material matter, or by evidence that at some other time he said or did something, or failed to say or do something, which is inconsistent with the witness's present testimony.
If you believe that any witness has been so impeached, it is in your exclusive province to give the testimony of that witness such credibility or weight, if any, as you think it deserves.
In answering the questions which I will submit to you, answer ''yes'' or "no" unless otherwise instructed. A ''yes'' answer must be based on a preponderance of the evidence. If you do not find that a preponderance of the evidence supports a ''yes'' answer, then answer "no."
After I have completed reading this Charge to you and have reviewed the verdict form, instructions, and jury questions, counsel will have the opportunity to make their closing arguments.

Your verdict must represent a considered judgment of each juror. In order to return a verdict, it is necessary that all members of the jury agree thereto. You may not therefore enter into an agreement to be bound by a majority or any vote other than a unanimous one.
Remember at all times you are not partisans. You are judges-judges ofthe facts. Your sole interest is to seek the truth from the evidence in the case.
Upon retiring to the jury room, you should first select one of your number to act as your presiding officer who will preside over your deliberations and will be your spokesman here in Court. A verdict form has been prepared for your convenience. Your presiding officer will sign in the space provided below after you have reached your verdict.
If, during your deliberations, you wish to communicate with the Court, you should do so only in writing by a note handed to the Deputy Marshal and signed by the presiding officer.
After you have reached your verdict, you will return this charge together with your written answers to the questions that I will submit to yo~~o not reveal your answers until such time as you are discharged, unless otherwise directe
Date/1ft 7t tCC:L
7

This is an employment discrimination case brought by the Equal Employment Opportunity Commission ("EEOC") under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991. The EEOC has brought this lawsuit on behalf of a class of aggrieved individuals, including Ernest Garcia, Johnny Trevino, Jose Alvarado, Michael Sanchez, Michael Rojas, Darrell Warrick, and Christopher Phillips, who were employed by United Parcel Service at its San Angelo Center. Ernest Garcia has joined this lawsuit as Plaintiff Intervenor.

For purposes of the following questions and instructions, the EEOC and Intervenor Garcia will be referred to as "Plaintiff" Ernest Garcia, Johnny Trevino, Jose Alvarado, Michael Sanchez, Michael Rojas, Darrell Warrick, and Christopher Phillips will collectively be referred to as "Claimants." United Parcel Service will be referred to as "Defendant."

The Plaintiff contends that Defendant discriminated against Hispanic employees, including Ernest Garcia, Johnny Trevino, Jose Alvarado, Michael Sanchez, and Michael Rojas, because of their national origin and subjected the Hispanic employees to a hostile work environment and to disparate treatment because of their national origin. The Plaintiff contends that the Defendant discriminated against an African-American employee, Darrell Warrick, because of his race, by subjecting him to disparate treatment and terminating him. Defendant denies these claims.
/0

Federal law prohibits an employer from intentionally discriminating against any person with respect to compensation, terms, conditions, or privileges of employment because of such person's national origin or race. Disparate treatment occurs when a protected group or class member is treated less favorably in terms and conditions of their employment than other similarly situated employees belonging to another race or ethnicity.
/1

In order for Plaintiff to establish a claim of disparate treatment against the Defendant, Plaintiff must prove that Defendant intentionally discriminated against the Claimants; that is, the Claimants' national origin or race must be proved to have been a motivating factor in Defendant's conduct.
The mere fact that the Claimants are Hispanic or African-American is not sufficient, in and of itself, to establish Plaintiff s claim under the law.
In showing that the Claimants' national origin or race was a motivating factor, Plaintiff is not required to prove that the Claimants' national origin or race was the sole motivation or even the primary motivation for Defendant's actions. Plaintiff need only prove that national origin or race played a motivating part in Defendant's actions even though other factors may also have motivated Defendant.
The term "motivating factor" means a consideration that moved Defendant toward Defendant's decision.
/'/J

In order to prevail on the claim of hostile work environment, Plaintiff must prove: (1) that Hispanic employees, including Garcia, Alvarado, Sanchez, and Rojas, were
members of a protected class; (2) that Garcia, Alvarado, Sanchez, and Rojas were subjected to unwelcome
harassment; (3) that the harassment was based on the national origin of Hispanic employees,
including Garcia, Alvarado, Sanchez, and Rojas; (4) that the harassment affected a term, condition, or privilege of employment of the
Hispanic employees, including Garcia, Alvarado, Sanchez, and Rojas; and (5) that Defendant knew or should have known ofthe harassment and failed to take
prompt remedial action.
13

With regard to the first element, you are instructed that Claimants Garcia, Alvarado, Sanchez, and Rojas were members of a protected class.
14

With regard to the second element, you are instructed that when determining whether the alleged harassment was "unwelcome," you must consider the totality of the circumstances in which the harassment occurred.

With regard to the third element, you are instructed that harassment based upon national origin means that because of the fact of the Claimants' national origin, the Claimants would not have been the object of harassment.

Under the fourth element, the harassment must be sufficiently severe or pervasive so as to alter the conditions of employment for Hispanics and or/African Americans and create an abusive working environment. Stated differently, the conduct must be so severe or pervasive that a reasonable person would find the environment hostile or abusive.
/7

You are instructed that not only must the Claimants subjectively perceive that their work environment was hostile and abusive, but a hostile work environment claim requires the presence of a work environment that a reasonable person would fmd hostile or abusive. Whether an environment was hostile or abusive depends on the totality of the circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct was physically threatening or humiliating, and the degree to which the conduct unreasonably interfered with the Claimants' work performance. Therefore, you must evaluate the totality of the circumstances and determine whether the allegedly discriminatory behavior could objectively be classified as the kind of behavior that would be offensive to a reasonable person.
IS

With regard to the fifth element, you are instructed that Defendant is subject to liability for an actionable hostile environment created by Defendant's manager(s) with innnediate (or successively higher) authority over the Claimants irrespective of Defendant's actual knowledge of the conduct of the manager(s). But, if you find that Defendant took no adverse "tangible employment action" against a Claimant, Defendant may avoid liability by proving
(1) that Defendant exercised reasonable care to prevent and promptly correct the supervisor's harassing behavior; and
(2) that Claimant unreasonably failed to take advantage of any preventive or corrective opportunities provided by Defendant or to avoid harm otherwise.

"Tangible employment action" includes any significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Plaintiff alleges that Ernest Garcia, Jose Alvarado, Michael Rojas, and Michael Sanchez were constructively discharged from their positions. Defendant denies this claim.
21

To prove "constructive discharge," Plaintiff must show that Defendant made the work environment of Emest Garcia, Jose Alvarado, Michael Rojas, and Michael Sanchez so intolerable that a reasonable person in their shoes would have felt compelled to resign. To be actionable, Plaintiffmust demonstrate a greater severity or pervasiveness of harassment than that required to prove a hostile work environment claim.

Title 42, United States Code, Section 2000e-2, makes it an unlawful employment practice for an employer to discharge any individual because of such individual's race.
In order to prevail on this claim, Plaintiff must prove each of the following by a preponderance of the evidence:
First: that Darrell Warrick was an employee of the Defendant; Second: that Darrell Warrick was discharged by the Defendant; and Third: that Defendant intentionally discriminated against Darrell Warrick; that is, Darrell Warrick's race was a motivating factor in the Defendant's decision to discharge him. The mere fact that Darrell Warrick is black and was terminated is not sufficient, in and of itself, to establish Plaintiffs claim

Federal law provides that an unlawful employment practice is established when the complaining party demonstrates that national origin or race was a motivating factor for any employment practice, even though other factors also motivated the practice.

The employment relationship between the Claimants and Defendant could be lawfully terminated by either the Claimants or Defendant, provided that the reason is not unlawful. In other words, employers are permitted to make their own subjective business judgments, however misguided, mistaken, harsh, or unfair they may appear to some persons, so long as they do not make those decisions because of illegal discrimination. It is not your role to decide this case based upon your agreement or disagreement with Defendant's business decisions. The law does not entitle courts or juries simply to second-guess the business decisions of an employer like Defendant.

Plaintiff must prove either directly or indirectly that Defendant intended to discriminate against the Claimants.
Direct evidence is evidence of remarks or actions that, if believed, directly prove that the Claimants' national origin or race was a motivating factor in Defendant's employment decisions. Plaintiff, however, are not required to produce direct evidence of discrimination. Intentional discrimination may be inferred from the existence of other facts. Intent may be proved by direct or circumstantial evidence.
Stray remarks in the workplace do not constitute direct evidence of discrimination. This means that statements made by persons not involved in the decision to terminate Claimants' employment, or statements made by decisionmakers that are unrelated to those decisions, do not constitute direct evidence that Claimants' membership in a protected class was a factor in the decision to terminate Claimants from their employment.

For comments in the workplace to provide sufficient evidence of discrimination on the issue of discharge, they must be:
(1) related to the protected class of persons of which the Claimants are members; (2) proximate in time to the discharge; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue. Comments that are vague and remote in time are insufficient to establish discrimination, but specific comments made over a lengthy period of time are sufficient.

If you find that the Plaintiff presented credible evidence that discriminatory intent was a motivating factor in the contested employment decisions, the burden then shifts to the employer to establish a legitimate, non-discriminatory reason for its decisions.
If you find the Defendant has stated a legitimate, non-discriminatory reason for its decisions, then for Plaintiff ultimately to prevail on its discrimination claims, it must prove, by a preponderance of the evidence, that the reasons stated by Defendant for making the employment decisions were not the true reasons and that the Claimants' national origin or race was the true reason. That is, the Plaintiff must prove, by a preponderance of the evidence, that Defendant intentionally discriminated against the Claimants because oftheir national origin or race. In other words, the Plaintiff must prove that the legitimate, non-discriminatory reasons offered by the Defendant were a pretext for discrimination.
Defendant's reasons would be a pretext for discrimination if those reasons were not the true reasons for the Defendant's conduct. In order for you to conclude the reasons given by the Defendant were a pretext for national origin or race discrimination, you must find the reasons given by Defendant were not true, and the real reason for Defendant's conduct was the Claimants' national origin or race.
In a case such as this, the Plaintiff must prove an intention by the Defendant to engage in national origin or race discrimination. Plaintiff, however, is not required to produce direct evidence of discrimination. Intentional discrimination may be inferred from the existence of other facts. Intent may be proved by direct or circumstantial evidence.

The Plaintiff alleges that Defendant retaliated against Ernest Garcia, Darrell Warrick, and Christopher Phillips because they complained of harassment and/or discrimination on the basis of race or national origin. Defendant denies this claim.

In order for the Plaintiff to prove its retaliation claim under Title VII, it must prove each of the following elements by a preponderance of the evidence:
(a) that Garcia, Warrick, and Phillips each engaged in an activity protected by Title VII;
(b) that the Defendant took an adverse employment action against Garcia, Warrick, and Phillips; and
(c) that a causal connection exists between that protected activity and the adverse employment action.
If you find that the Plaintiff has presented credible evidence proving each of these elements, the burden then shifts to the Defendant to state a legitimate, nondiscriminatory reason for its decision.
If you then find that the Defendant has stated a legitimate, nondiscriminatory reason for its decision, then, for Plaintiff to ultimately prevail on its claim, it must prove by a preponderance of the evidence that Garcia, Warrick, and Phillips would not have been retaliated against "but for" engaging in the protected activity.
An adverse employment decision is defined as acts such as hiring, granting leave, discharging, promotion, and compensating. The laws prohibiting retaliation are designed to address only these ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon these ultimate employment decisions.
30

In order to prove a causal connection, the Plaintiff need not prove that protected activity was the sole factor motivating the Defendant's challenged decision in order to establish the causal link element of a prima facie case; however, Plaintiff does need to show that there was some relationship between the protected activity and the adverse action. In determining whether there is a causal relationship, you are not to consider the merits of Garcia'S, Warrick's, and Phillips' prior complaints of discrimination but must simply be aware that the prior filing was made.
31

Title VII does not interfere with the Defendant's right to make any business decision that it chooses to make, so long as it does not make a decision for a retaliatory purpose.
The Defendant has the right to determine which factor or factors it will use to decide what discipline should be imposed for violations of the Defendant's orders, rules, regulations, and policies, so long as the factors it uses are not based on an employee's prior participation in a protected activity. It is not your role as jurors to second-guess the Defendant's business judgment, so long as the judgment is not based on Garcia's, Warrick's, and Phillips' prior participation in a protected activity. The fact that an employer's decision may seem harsh or could have been more lenient or was simply a bad decision is not sufficient for the Plaintiff to prevail in a Title VII case. The question before you is not whether the Defendant made wise decisions with respect to its treatment of Garcia, Warrick, and Phillips, nor is the question whether the Defendant treated Garcia, Warrick, and Phillips fairly. The question before you is whether the Defendant retaliated against Garcia, Warrick, and Phillips because of their prior participation in a protected activity.

Ifyou find that Defendant is liable to the Claimants, then you must determine an amount that is fair compensation for Claimants' damages. These damages are called compensatory damages. The purpose of compensatory damages is to make the Claimants whole; that is, to compensate Claimants for damages suffered.

You may award compensatory damages only for Claimants' injuries that Plaintiff proves were proximately caused by Defendant's allegedly wrongful conduct. "Proximate cause" means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom There may be more than one proximate cause of an event.
3'-1

Claimants are seeking lost wages and employment benefits. If you find for the Claimants, they are entitled to recover back pay in an amount equal to the difference, if any, between what the Claimants have actually earned or could have earned since leaving the employment with Defendant and what they would have been paid to this date had the Claimants remained employed by Defendant. In determining this number, do not include lost wages for any period of time in which a claimant was unable to work or voluntarily removed himself from the workplace.

A person who claims damages resulting from the wrongful act of another has a duty under the law to use reasonable diligence to mitigate; that is, to avoid or minimize those damages.
If you find that Defendant is liable and a Claimant has suffered damages, that Claimant may not recover for any item of damage which Claimant could have avoided through reasonable effort. If you find by a preponderance of the evidence that a Claimant unreasonably failed to take advantage of an opportunity to lessen his damages, you should deny that Claimant recovery for those damages which Claimant would have avoided had Claimant taken advantage of the opportunity.
You are the sole judge of whether a Claimant acted reasonably in avoiding or minimizing his damages. A Claimant may not sit idly by when presented with an opportunity to reduce his damages. However, a Claimant is not required to exercise unreasonable efforts or incur unreasonable expenses in mitigating damages. Defendant has the burden of proving those damages which the Claimant could have mitigated. In deciding whether to reduce a Claimant's damages because of a failure to mitigate, you must weigh all the evidence in light of the particular circumstances of the case, using sound discretion in deciding whether Defendant has satisfied its burden of proving that the Claimant's conduct was not reasonable.

"Mental anguish" implies a relatively high degree of mental pain and distress. Mental anguish is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these. Mental anguish includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, and public humiliation.
31

Plaintiff also seeks to recover punitive damages based on its claims against Defendant. "Punitive damages" are damages which are assessed against a party in an amount that you may, in your discretion, award as a penalty or by way of punishment.
The purpose of an award of punitive damages is to punish Defendant for misconduct and to warn others against doing the same. If you determine that Defendant's conduct justifies an award of punitive damages, you may award an amount of punitive damages which all jurors agree is proper.
To recover punitive damages against Defendant, Plaintiff must prove that Defendant engaged in discriminatory conduct with malice or reckless indifference to Claimants' federally protected rights. The terms "malice" or "reckless indifference" pertain to Defendant's knowledge that its actions were likely to violate Claimants' federally protected rights, not Defendant's awareness that it was engaging in discrimination. To be liable for punitive damages, Defendant must at least have discriminated in the face of a perceived risk that its actions violated federal law.
An employer cannot be held liable for punitive damages for the discriminatory decisions of its managerial agents where these decisions are contrary to the employer's good-faith efforts to comply with federal anti-discrimination laws. In other words, an employer will not be liable for a manager's discriminatory employment decisions when those decisions are contrary to the employer's good-faith efforts to comply with federal laws.
A "managerial agent" or "manager" is one who has the authority to hire employees, terminate employees, discipline employees, promote employees, or otherwise exercise independent judgment and discretion over a certain area of business, including the authority to take adequate steps to deal effectively with the actions or conduct of employees.

You should not interpret the fact that I have given instructions about damages as an indication in any way that I believe that a party should, or should not, win this case. I am instructing you on damages only so that you will have guidance in the event that you decide one party is entitled to recover money from the other party.

I QUESTION NO.

Did Defendant intentionally subject any of the following Claimants to disparate treatment

with respect to compensation, conditions, terms, or privileges of employment because of race or

national origin?

Answer "Yes" or "No" as to each Claimant named below:

Ernest Garcia

~

Johnny Trevino

~

Jose Alvarado

NO

Michael Sanchez

i/Jl

Michael Rojas

liD

Darrell Warrick

~

QUESTION NO. 1,;

Were any of the following Claimants subjected by Defendant to a hostile work

environment because of their national origin?

Answer "Yes" or "No" as to each Claimant named below:

Ernest Garcia

No

Jose Alvarado

No

Michael Sanchez

lVo

Michael Rojas

No

If you have answered "Yes" to any of the Claimants Garcia, Alvarado, Sanchez, or Rojas
in Question No. ~, then answer the following question as to those same Claimants.
Otherwise, do not answer the following question
L QUESTION NO.
Were any ofthe following Claimants constructively discharged by Defendant? Answer "Yes" or ''No'' as to each Claimant named below: Ernest Garcia Jose Alvarado Michael Sanchez Michael Rojas

If QUESTION NO. - -
Were any of the following Claimants retaliated against by Defendant because they engaged in activity protected under federal law?
Answer "Yes" or ''No'' as to each Claimant named below: Ernest Garcia Darrell Warrick Christopher Phillips

Iv i f If you answered "Yes" to any subpart of Question

~ rJo/

----~,--~/----~---------------

then answer the following question as to the same claimants. Otherwise, do not answer the

following question.

L QUESTION NO.

What sum of money, if any, if paid now in cash, would be the reasonable damages

suffered by the Claimants?

In answering this question you may consider only the elements of damages listed below.

You are to consider each element of damages separately; do not include damages for one

element in any other element.

Answer in dollars and cents, if any, or "None" for each of the following elements for each

of the listed Claimants:

Ernest Garcia

Lost wages in the past

Answer: ------------------
Lost employment benefits in the past

Answer: --------------------
Mental anguish

Answer: ------------------
Johnny Trevino

Mental anguish

Answer: ------------------

Jose Alvarado Lost wages in the past Answer: __________________ Lost employment benefits in the past Answer: ____________________ Mental anguish Answer: ------------------
Michael Sanchez Lost wages in the past Answer: __________________ Lost employment benefits in the past Answer: ___________________ Mental anguish Answer:
Michael Rojas Lost wages in the past up through December 31, 1999 Answer: __________________ Lost employment benefits in the past up through December 31, 1999 Answer: -------------------Mental anguish Answer: ------------------

Darrell Warrick Lost wages in the past Answer: Lost employment benefits in the past Answer: -----------------Mental anguish Answer: _________
Christopher Phillips Lost wages in the past up through April 30, 2000 Answer: - - - - - - - - - Lost employment benefits in the past up through April 30, 2000 Answer: __________________ Mental anguish Answer:

If you answered "Yes" to any subpart of Question ___-'--~~3'-J7--=-tJt=---JfL-------

then answer the following question as to the same claimants. Otherwise, do not answer the

following question.

-1- QUESTION NO.

Did Defendant act against Claimants with malice or reckless indifference in violation of

Claimants' federally protected rights?

Answer "Yes" or "No"as to each Claimant listed below:

Ernest Garcia

Johnny Trevino

Jose Alvarado

Michael Sanchez

Michael Rojas

Darrell Warrick

Christopher Phillips

If you answered "Yes" to any subpart of Question __---'-_J _________

then answer the following question as to the same claimants. Otherwise, do not answer the

following question.

---1..- QUESTION NO.

What sum of money, if any, if paid now in cash, should be assessed against Defendant

and awarded to Plaintiff as punitive damages?

Punitive damages means an amount that you may in your discretion award as a penalty or

by way of punishment. Factors to consider in awarding punitive damages, if any, are:

(1) the nature of the wrong

(2) the character of the conduct involved

(3) the degree of culpability of Defendant

(4) the situation and sensibility of the parties concerned

(5) the extent to which such conduct offends the public's sense ofjustice and

propriety

(6) the net worth of Defendant

Answer in dollars and cents, ifany, or "None" as to each Claimant

Ernest Garcia

Johnny Trevino

Jose Alvarado

Michael Sanchez

Michael Rojas

Darrell Warrick

Christopher Phillips

Certificate We, the jury, have answered the above and foregoing questions as herein indicated, and herewith return same into court as our verdict.
{if\ eJ 1?DA {\Jilt "e~J&
Presiding Officer of the Jury

 
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CLOSED, JURY, TDIS
U.S. District Court Northern District of Texas (San Angelo) CIVIL DOCKET FOR CASE #: 6:01-cv-00109

EEOC v. United Parcel Servic Assigned to: Judge Sam R Cummings Demand: $0 Cause: 42:2000 Job Discrimination (Race) Plaintiff Equal Employment Opportunity Commission
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Date Filed: 11/20/2001 Date Terminated: 05/08/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Linda Gutierrez Equal Employment Opportunity Commission San Antonio District Office 5410 Fredricksburg Rd Suite 200 San Antonio, TX 78240 210/281-7629 TERMINATED: 02/20/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronetta J Francis Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2746 Fax: 214/253-2749 FAX Email: Ronetta.Francis@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Martha Cano Law Office of Jeffrey A Goldberg 9901 IH-10 W Suite 690 San Antonio, TX 78230 210/690-2200 Email: cmc_goldberglaw@sbcglobal.net TERMINATED: 02/20/2003
Eduardo Juarez Equal Employment Opportunity
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Intervenor Plaintiff Ernest Garcia
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Commission San Antonio District Office 5410 Fredricksburg Rd Suite 200 San Antonio, TX 78229 210/281-7613 Email: eduardo.juarez@eeoc.gov
Keri L Mallon Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2743 Fax: 214/253-2749 FAX Email: Keri.Mallon@eeoc.gov
Suzanne M Anderson Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2740 Fax: 214/253-2749 FAX Email: suzanne.anderson@eeoc.gov
William C Backhaus Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2742 Fax: 214/253-2749 FAX Email: william.backhaus@eeoc.gov
represented by Thad Harkins Harkins Latimer & Dahl Travis Bldg 405 N St Mary's St Suite 242 San Antonio, TX 78205-1722 210/527-0900 Fax: 210/527-0901 FAX
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V. Defendant United Parcel Service, Inc
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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael R Latimer Harkins Latimer & Dahl Travis Bldg 405 N St Mary's St Suite 242 San Antonio, TX 78205-1722 210/527-0900
represented by Shelton Edward Padgett Akin Gump Strauss Hauer & Feld Nations Bank Plaza 300 Convent St Suite 1500 San Antonio, TX 78205 210/281-7000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine E Reinhard Akin Gump Strauss Hauer & Feld Nations Bank Plaza 300 Convent St Suite 1500 San Antonio, TX 78205 210/281-7000 Fax: 210/224-2035 FAX Email: creinhard@akingump.com
Donald W Griffis Jackson Walker 301 W Beauregard Ave Suite 200 San Angelo, TX 76903 325/481-2566 Fax: 325/481-2552 FAX Email: dgriffis@jw.com ATTORNEY TO BE NOTICED
Glenn D Shook Akin Gump Strauss Hauer & Feld LLP 300 Convent Suite 1500 San Antonio, TX 78205 210/281-7021
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ThirdParty Defendant International Brotherhood of Teamsters ThirdParty Defendant Local 657 of the International Brotherhood of Teamsters
Intervenor Defendant United Parcel Service, Inc
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Fax: 210/224-2035 Email: gshook@akingump.com
Kris J Bird Ray Valdez McChristian & Jeans - San Antonio Nowlin Bldg 9311 San Pedro Suite 700 San Antonio, TX 78216 210/341-3554 Fax: 210/341-3557 FAX Email: kbird@rvmjfirm.com
Robert A Junell Jackson Walker 301 W Beauregard Ave Suite 200 San Angelo, TX 76903 325/481-2550 Fax: 325/481-2552 FAX TERMINATED: 02/25/2003 ATTORNEY TO BE NOTICED
represented by James L Hicks, Jr Hicks & Associates 2777 N Stemmons Fwy Suite 1100 Dallas, TX 75207 214/630-8621 Fax: 214/630-9286 FAX Email: hicks1989@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Shelton Edward Padgett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine E Reinhard (See above for address)
Glenn D Shook (See above for address)
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Intervenor Plaintiff Cherri Romo TERMINATED: 01/02/2003
V. Intervenor Defendant United Parcel Service, Inc

Kris J Bird (See above for address)
represented by Jeffrey A Goldberg Law Office of Jeffrey A Goldberg Colonnade I Nations Bank Building 9901 IH-10 W Suite 690 San Antonio, TX 78230 210/690-2200 Fax: 210/690-0438 FAX Email: txlaborlaw@sbcglobal.net TERMINATED: 01/02/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Shelton Edward Padgett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine E Reinhard (See above for address)
Glenn D Shook (See above for address)
Kris J Bird (See above for address)
Robert A Junell (See above for address) TERMINATED: 02/25/2003 ATTORNEY TO BE NOTICED

Date Filed
07/06/2001 07/06/2001 08/27/2001

#

Docket Text

1 COMPLAINT filed; (7) (mrr) (Entered: 11/21/2001)
1 DEMAND for jury trial by plaintiff EEOC (mrr) (Entered: 11/21/2001)
5 Intervenor's COMPLAINT by against defendant United Parcel Servic (5) (mrr) (Entered: 11/21/2001)

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08/27/2001 08/31/2001 08/31/2001 08/31/2001
08/31/2001 09/24/2001 09/28/2001 09/28/2001 10/05/2001 10/05/2001 10/29/2001
10/29/2001
11/20/2001 11/20/2001
11/20/2001
11/21/2001

5 DEMAND for jury trial by intervenor-plaintiff Ernest Garcia (mrr) Modified on 11/21/2001 (Entered: 11/21/2001)
6 ANSWER to Complaint by defendant United Parcel Servic (mrr) (Entered: 11/21/2001)
8 MOTION by defendant United Parcel Servic to dismiss or in the alternative for more definite statement (mrr) (Entered: 11/21/2001)
9 MOTION by defendant United Parcel Servic to dismiss Garcia's Complaint in Intervention or, in the alternative for more definite statement (mrr) (Entered: 11/21/2001)
7 ANSWER by defendant United Parcel Servic to [5-1] intervenor complaint (mrr) (Entered: 11/21/2001)
20 RESPONSE by intervenor-plaintiff Ernest Garcia to [8-1] motion to dismiss or in the alternative for more definite statement (mrr) (Entered: 11/21/2001)
22 REPLY by defendant United Parcel Servic to response to [8-1] motion to dismiss or in the alternative for more definite statement (mrr) (Entered: 11/21/2001)
23 RESPONSE by plaintiff EEOC to [8-1] motion to dismiss or in the alternative for more definite statement (mrr) (Entered: 11/21/2001)
27 REPLY by defendant United Parcel Servic to response to [8-1] motion to dismiss or in the alternative for more definite statement (mrr) (Entered: 11/21/2001)
28 REPLY by defendant United Parcel Servic to response to defendant's motion to transfer venue [10-1] (mrr) (Entered: 11/21/2001)
35 SUR-REPLY by plaintiff EEOC to reply to response to [9-1] motion to dismiss Garcia's Complaint in Intervention or, in the alternative for more definite statement (mrr) (Entered: 11/21/2001)
36 ORDER granting defendant's motion to transfer venue [10-1]. this cause is TRANSFERRED to the Northern District of Texas San Angelo Division (mrr) (Entered: 11/21/2001)
37 Original file, certified copy of transfer order and docket sheet received from District of WD/TX San Antonio Division (mrr) (Entered: 11/21/2001)
38 UNFILED PER ORDER OF 11/27/01 ERNEST GARCIA'S FIRST AMENDED intervenor's COMPLAINT & JURY DEMAND by intervenor-plaintiff Ernest Garcia amending [5-1] intervenor complaint (5) (mrr) Modified on 11/27/2001 (Entered: 11/21/2001)
38 UNFILED PER ORDER OF 11/27/01 DEMAND for jury trial by intervenor-plaintiff Ernest Garcia (mrr) Modified on 11/27/2001 (Entered: 11/21/2001)
39 SCHEDULING ORDER setting Joining of Parties on 3:00 2/15/02 ; Amending of Pleadings on 3:00 2/15/02 ; Experts disclosed by 3:00 5/15/02; Deadline for filing of dispositive motions (including motions for summary judgment) 3:00 7/15/02 ; Discovery cutoff 3:00 9/16/02 ; Deadlines will not be extended except upon good cause & by order of Court; Unless further ordered by Court parties are

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11/27/2001 11/27/2001
11/30/2001
12/28/2001 01/08/2002 01/08/2002 01/09/2002 01/09/2002 01/09/2002 01/18/2002 02/15/2002 02/15/2002 02/19/2002

not required to make initial disclosures under Rule 26(a)(1) Fed R Civ P; Counsel must comply with mandates set forth in Dondi; Counsel referred to Local Rules ND/TX, Civil Justice Cost & Delay Reduction Plan ND/TX & Local Rules of this Court; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 11/21/01 Page(s): 2 (mrr) (Entered: 11/21/2001)
40 ADVISORY TO THE COURT REGARDING PENDING MOTIONS by defendant United Parcel Servic (3) (mrr) (Entered: 11/27/2001)
41 ORDER unfiling [38-1] intervenor complaint, unfiling [38-1] demand jury by intervenor-plaintiff Ernest Garcia due to the following deficiency: Leave of Court required Copies to counsel: 11/27/01 (signed by Judge Sam R Cummings ) Page(s) 2 (blr) (Entered: 11/27/2001)
42 ORDER denying [8-1] motion to dismiss or in the alternative for more definite statement, denying [9-1] motion to dismiss Garcia's Complaint in Intervention or, in the alternative for more definite statement; Deft's Motions to Dismiss are DENIED; Court does not find that either Pltf's Complaint or Intervenor's Complaint is "so vague & ambiguous" that Deft cannot frame responsive pleading; Deft's Alternative Motions for More Definite Statement are DENIED; **See order for specifics** ( Signed by Judge Sam R. Cummings ) Copies to counsel: 11/30/01 Page(s) 5 (mrr) (Entered: 11/30/2001)
43 CERTIFICATE OF INTERESTED PERSONS by plaintiff EEOC (4) (blr) (Entered: 12/28/2001)
44 (Disclosure of Interested Parties) CERTIFICATE OF INTERESTED PERSONS by defendant United Parcel Servic (3) (mrr) (Entered: 01/08/2002)
45 UNOPPOSED MOTION by plaintiff EEOC (for leave to file 1st amended complaint) to amend [1-1] complaint (4+) (mrr) (Entered: 01/08/2002)
46 ORDER granting [45-1] motion (for leave to file 1st amended complaint) to amend [1-1] complaint ( Signed by Judge Sam R. Cummings ) Copies to counsel: 1/9/02 Page(s) 1 (mrr) (Entered: 01/09/2002)
47 PLTF'S FIRST AMENDED COMPLAINT by plaintiff EEOC , amending [1-1] complaint (8) (mrr) (Entered: 01/09/2002)
47 DEMAND for jury trial by plaintiff EEOC **contained in 1st Amended Complaint** (mrr) (Entered: 01/09/2002)
48 (Disclosure of Interested Parties) CERTIFICATE OF INTERESTED PERSONS by intervenor-plaintiff Ernest Garcia (2) (mrr) (Entered: 01/18/2002)
49 MOTION by intervenor-plaintiff Ernest Garcia to amend [5-1] intervenor complaint, [5-1] demand jury , to add 3rd party defts (blr) (Entered: 02/15/2002)
50 MOTION by plaintiff EEOC to amend [47-1] amended complaint (for leave to file second amended complaint) (blr) (Entered: 02/15/2002)
51 ORDER granting [50-1] motion to amend [47-1] amended complaint ( Signed by Judge Sam R. Cummings ) Copies to counsel: 2/19/02 Page(s) 1 (blr) (Entered: 02/19/2002)

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02/19/2002 02/19/2002 02/19/2002 04/02/2002 04/05/2002 04/09/2002
04/18/2002 04/22/2002
05/10/2002 05/10/2002 05/15/2002 05/20/2002 09/09/2002

52 ORDER granting [49-1] motion to amend [5-1] intervenor complaint, [5-1] demand jury, granting [49-2] motion to add 3rd party defts ( Signed by Judge Sam R. Cummings ) Copies to counsel: 2/19/02 Page(s) 3 (blr) (Entered: 02/19/2002)
53 AMENDED intervenor's COMPLAINT by intervenor-plaintiff Ernest Garcia amending [5-1] intervenor complaint (6) (blr) (Entered: 02/19/2002)
54 Second AMENDED COMPLAINT by plaintiff EEOC , amending [47-1] amended complaint (blr) (Entered: 02/19/2002)
55 ANSWER by third-party defendant Local 657 (Attorney James Lowery Hicks Jr) to amended third-party complaint: [53-1] intervenor complaint (2) (blr) (Entered: 04/02/2002)
56 JOINT MOTION to Extend Discovery & Summary Judgment Deadlines by plaintiff EEOC, intervenor-plaintiff Ernest Garcia, defendant United Parcel Servic, third-party defendant Intl Brotherhood, third-party defendant Local 657 (7) (mrr) (Entered: 04/05/2002)
57 ORDER granting [56-1] joint motion to Extend Discovery & Summary Judgment Deadlines Reset scheduling order deadlines: Discovery deadline by 12/20/02 Deadline for filing of dispositive motions (summary judgment motions) by 1/22/03 ( Signed by Judge Sam R. Cummings ) Copies to counsel: 4/9/02 Page(s) 4 (mrr) (Entered: 04/09/2002)
58 NOTICE of attorney appearance as co-counsel for defendant United Parcel Servic by Robert A Junell (blr) (Entered: 04/19/2002)
59 STIPULATION of dismissal of All claims Against Deft International Brotherhood of Teamsters; Hereby stipulated by Equal Employment Opportunity Commissions, Pltf, Ernest Garcia,Intervenor, United Parcel Service, Deft & Teamsters Local 657, Deftt that action action of Ernest Garcia, Intervenor against Deft International Brotherhood of Teamsters be dismissed; (4) (mrr) (Entered: 04/22/2002)
60 ANSWER by defendant United Parcel Servic (Attorney ) to second amended complaint (14) (blr) (Entered: 05/10/2002)
61 ANSWER by defendant United Parcel Servic to [53-1] amended intervenor complaint (11) (blr) (Entered: 05/10/2002)
62 JOINT MOTION to extend deadline for disclosure of expert witnesses by plaintiff EEOC, intervenor-plaintiff Ernest Garcia, defendant United Parcel Servic, third-party defendant Intl Brotherhood, third-party defendant Local 657 (4) (mrr) (Entered: 05/15/2002)
63 ORDER granting [62-1] joint motion to extend deadline for disclosure of expert witnesses; expert witness disclosure due 9/16/02; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 5/20/02 Page(s) 3 (blr) (Entered: 05/20/2002)
64 JOINT MOTION to extend time by plaintiff EEOC, intervenor-plaintiff Ernest Garcia, defendant United Parcel Servic, intervenor-defendant United Parcel Servic, third-party defendant Intl Brotherhood, third-party defendant Local 657 (blr) (Entered: 09/09/2002)

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09/10/2002
09/16/2002
09/30/2002 10/03/2002
10/03/2002 10/04/2002 11/04/2002 11/05/2002
11/05/2002 11/05/2002 11/08/2002 11/12/2002

65 ORDER denying [64-1] joint motion to extend time; Further parties state that "this case is a multi-party class action"; This case has not been certified as class action & parties are warned that sanctions will be imposed if further misrepresentations are made to Court; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 9/10/02 Page(s) 1 (mrr) (Entered: 09/10/2002)
66 NOTICE of Advisory to the Court by plaintiff EEOC regarding its failure to move for class certification; Pltf does not allege facts addressed to usual class representation requirements of FedRCivP 23 nor does it move for certification of classes of individuals upon whose claims the EEOC's complaints are based (3) (mrr) (Entered: 09/16/2002)
67 UNOPPOSED MOTION FOR LEAVE TO FILE 3D AMENDED COMPLAINT by plaintiff EEOC to amend [54-1] amended complaint, [47-1] amended complaint, [1-1] complaint (15) (mrr) Modified on 10/01/2002 (Entered: 10/01/2002)
68 ORDER granting [67-1] motion to amend [54-1] amended complaint, [47-1] amended complaint, [1-1] complaint Parties are advised that no further extension of pretrial deadlines will be granted & case will be set for trial on Court's 4/21/03 trial docket ; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 10/3/02 Page(s) 1 (mrr) (Entered: 10/03/2002)
69 THIRD AMENDED COMPLAINT by plaintiff EEOC , amending [1-1] complaint, [47-1] amended complaint, [54-1] amended complaint (9) (mrr) (Entered: 10/03/2002)
70 SCHEDULING ORDER setting Jury trial set for 9:00 4/21/03 ; Pretrial materials due at least 30 days before trial date; Proposed pretrial order due at least 30 days before trial date ; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 10/4/02 Page(s): 3 (blr) (Entered: 10/04/2002)
71 (Unopposed) MOTION to intervene by movant Cherri Romo (blr) (Entered: 11/04/2002)
72 ORDER granting [71-1] motion to intervene by intervenor plaintiff Cherri Romo; Parties are advised that no further extensions of pretrial deadlines will be granted & this case remains set for trial on the Court's 4/21/03 trial docket; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 11/5/02 Page(s) 1 (mrr) (Entered: 11/05/2002)
73 (Cherri Romo's Complaint in Intervention) Intervenor's COMPLAINT by against defendant United Parcel Service (7) (mrr) (Entered: 11/05/2002)
73 DEMAND for jury trial by intervenor-plaintiff Cherri Romo (mrr) (Entered: 11/05/2002)
74 UNFILED per Order of 11/12/02: Signature pages for unopposed Motion by intervenor-plaintiff Cherri Romo (blr) Modified on 11/12/2002 (Entered: 11/08/2002)
75 ORDER unfiling [74-1] remark by intervenor-plaintiff Cherri Romo due to the following deficiency: Document must be in proper form; See LR 10.1; Copies to counsel: 11/12/02 (signed by Judge Sam R Cummings ) Page(s) 1 (mrr) (Entered: 11/12/2002)

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12/02/2002 12/04/2002
12/05/2002 12/06/2002 12/06/2002 12/09/2002 12/12/2002 12/13/2002 12/17/2002
12/17/2002

76 UNFILED PER ORDER OF 11/26/02 - MOTION by third-party defendant Local 657 of Rule 19 Deft Temasters Local 657 to be Relieved from Further Pretrial & Trial Participation (4)(mrr) Modified on 11/26/2002 (Entered: 11/25/2002)
77 ORDER unfiling [76-1] motion of Rule 19 Deft Temasters Local 657 to be Relieved from Further Pretrial & Trial Participation by third-party defendant Local 657 due to the following deficiency: Brief in Support required per LR 7.1(d) Copies to counsel: 11/26/02 (signed by Judge Sam R Cummings ) Page(s) 1 (blr) (Entered: 11/26/2002)
78 MEMORANDUM by third-party defendant Local 657 in support of (Unfiled Motion to be Relieved from further Pretrial & Trial Participation) (blr) (Entered: 12/03/2002)
79 ORDER unfiling [78-1] support memorandum by third-party defendant Local 657 due to the following deficiency: Motion unfiled 11/26/02 not resubmitted with Brief therefore Memorandum in Support does not have document to support; Copies to counsel: 12/4/02 (signed by Judge Sam R Cummings ) Page(s) 1 (mrr) (Entered: 12/04/2002)
80 NOTICE of Joint Advisory to Court Regarding Deft Local 657's Motion to be Relieved from Further Pretrial & Trial Participation by plaintiff EEOC, intervenor-plaintiff Ernest Garcia (5) (mrr) (Entered: 12/06/2002)
81 Unopposed MOTION of Rule 19 Deft by third-party defendant Local 657 to be Relieved from Further Pretrial & Trial Participation (3) (mrr) (Entered: 12/06/2002)
82 MEMORANDUM by third-party defendant Local 657 in support of [81-1] motion to be Relieved from Further Pretrial & Trial Participation (3) (mrr) (Entered: 12/06/2002)
83 ORDER granting [81-1] motion to be Relieved from Further Pretrial & Trial Participation; ORDERED that Rule 19 Deft Teamsters Local 657 is Relieved from further participation in this litigation; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 12/9/02 Page(s) 1 (mrr) (Entered: 12/09/2002)
84 MOTION with memorandum in support by defendant United Parcel Servic for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs (blr) (Entered: 12/12/2002)
85 Amended MOTION for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs by defendant United Parcel Servic referring to [84-1] motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs (blr) (Entered: 12/13/2002)
86 Second Amended MOTION for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs by defendant United Parcel Servic referring to [84-1] motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, [85-1] amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs (blr) (Entered: 12/17/2002)
87 MEMORANDUM by defendant United Parcel Servic in support of [86-1] amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs (blr) (Entered: 12/17/2002)

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01/03/2003 01/03/2003 01/10/2003
01/13/2003
01/13/2003 01/14/2003 01/14/2003 01/22/2003

88 APPENDIX by defendant United Parcel Servic in support of [87-1] support memorandum (blr) (Entered: 12/17/2002)
89 MOTION by intervenor-plaintiff Cherri Romo (for) Stipulation of Dismissal of Intervention (6) (mrr) (Entered: 12/26/2002)
90 ORDER granting [89-1] motion (for) Stipulation of Dismissal of Intervention ; Intervention is dismissed w/out prejudice & Romo shall remain as a class member ( Signed by Judge Sam R. Cummings ) Copies to counsel: 1/2/03 Page(s) 2 (blr) (Entered: 01/02/2003)
91 CROSS MOTION for extension of page length of Summary Judgment Motions by plaintiff EEOC (blr) (Entered: 01/03/2003)
91 RESPONSE by plaintiff EEOC to [84-1] motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, [85-1] amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, [86-1] second amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs (blr) (Entered: 01/03/2003)
92 MEMORANDUM by plaintiff EEOC in support of [91-1] cross motion for extension of page length of Summary Judgment Motions, [91-1] motion response (blr) (Entered: 01/03/2003)
93 APPENDIX by plaintiff EEOC in support of [92-1] support memorandum (blr) (Entered: 01/03/2003)
94 ORDER denying [84-1] motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, denying [85-1] amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, denying [86-1] amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, denying [91-1] cross motion for extension of page length of Summary Judgment Motions ( Signed by Judge Sam R. Cummings ) Copies to counsel: 1/10/03 Page(s) 2 (mrr) (Entered: 01/10/2003)
95 RESPONSE by intervenor-plaintiff Ernest Garcia in opposition to [84-1] motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, [85-1] amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs, [86-1] amended motion for leave to file Separate Motions for Summary Judgment for each of 3 named Pltfs (blr) (Entered: 01/13/2003)
96 MEMORANDUM by intervenor-plaintiff Ernest Garcia in support of [95-1] motion response (blr) (Entered: 01/13/2003)
97 Unopposed Expedited MOTION by plaintiff EEOC to extend Scheduling Order & Pretrial Order Deadlines (5) (mrr) (Entered: 01/14/2003)
98 ORDER denying [97-1] motion to extend Scheduling Order & Pretrial Order Deadlines ( Signed by Judge Sam R. Cummings ) Copies to counsel: 1/14/03 Page(s) 1 (mrr) (Entered: 01/14/2003)
99 MOTION by plaintiff EEOC to strike Al Yonovitz's Testimony or in alternative motion to exclude purported expert witness testimony of Al Yonovitz (blr) (Entered: 01/22/2003)

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01/22/2003
01/22/2003 01/22/2003 01/22/2003 01/22/2003 01/22/2003 01/22/2003
01/22/2003 01/22/2003 01/22/2003 01/22/2003
01/22/2003
01/22/2003 01/22/2003 01/22/2003 01/22/2003 01/22/2003 01/22/2003

100 MEMORANDUM by plaintiff EEOC in support of [99-1] motion to strike Al Yonovitz's Testimony or in alternative motion to exclude purported expert witness testimony of Al Yonovitz (blr) (Entered: 01/22/2003)
101 APPENDIX by plaintiff EEOC in support of [100-1] support memorandum (blr) (Entered: 01/22/2003)
102 MOTION by plaintiff EEOC in limine (blr) (Entered: 01/22/2003)
103 MEMORANDUM by plaintiff EEOC in support of [102-1] motion in limine (blr) (Entered: 01/22/2003)
104 APPENDIX by plaintiff EEOC in support of [103-1] support memorandum (blr) (Entered: 01/22/2003)
105 MOTION by plaintiff EEOC, intervenor-plaintiff Ernest Garcia for partial summary judgment (blr) (Entered: 01/22/2003)
106 MEMORANDUM by plaintiff EEOC, intervenor-plaintiff Ernest Garcia in support of [105-1] motion for partial summary judgment (blr) (Entered: 01/22/2003)
107 APPENDIX by plaintiff EEOC, intervenor-plaintiff Ernest Garcia in support of [106-1] support memorandum (blr) (Entered: 01/22/2003)
108 MOTION by intervenor-plaintiff Ernest Garcia in limine (blr) (Entered: 01/22/2003)
109 MEMORANDUM by intervenor-plaintiff Ernest Garcia in support of [108-1] motion in limine (blr) (Entered: 01/22/2003)
110 MOTION by intervenor-plaintiff Ernest Garcia to strike Al Yanovitz's Testimony or in alternative to exclude purported expert testimony of Al Yanovitz (blr) (Entered: 01/22/2003)
111 MEMORANDUM by intervenor-plaintiff Ernest Garcia in support of [110-1] motion to strike Al Yanovitz's Testimony or in alternative to exclude purported expert testimony of Al Yanovitz (blr) (Entered: 01/22/2003)
112 MOTION by defendant United Parcel Servic for summary judgment (blr) (Entered: 01/22/2003)
113 MEMORANDUM by defendant United Parcel Servic in support of [112-1] motion for summary judgment (blr) (Entered: 01/22/2003)
114 APPENDIX - Volume 1 of 3 by defendant United Parcel Servic in support of [113-1] support memorandum (blr) (Entered: 01/22/2003)
115 APPENDIX - Volume 2 of 3 by defendant United Parcel Servic in support of [113-1] support memorandum (blr) (Entered: 01/22/2003)
116 APPENDIX - Volue 3 of 3 by defendant United Parcel Servic in support of [113-1] support memorandum (blr) (Entered: 01/22/2003)
117 MOTION by defendant United Parcel Servic in limine (blr) (Entered: 01/22/2003)

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01/22/2003 01/27/2003
02/05/2003
02/05/2003 02/05/2003 02/05/2003 02/07/2003
02/11/2003 02/11/2003 02/11/2003 02/11/2003 02/11/2003

118 MEMORANDUM by defendant United Parcel Servic in support of [117-1] motion in limine (blr) (Entered: 01/22/2003)
119 ORDER denying [102-1] motion in limine as untimely, denying [108-1] motion in limine as untimely, denying [117-1] motion in limine as untimely ; Response to motion reset to 2/5/03 for [99-1] motion to strike Al Yonovitz's Testimony or in alternative motion to exclude purported expert witness testimony of Al Yonovitz, reset to 2/5/03 for [110-1] motion to strike Al Yanovitz's Testimony or in alternative to exclude purported expert testimony of Al Yanovitz, reset to 2/11/03 for [105-1] motion for partial summary judgment, reset to 2/11/03 for [112-1] motion for summary judgment ; any reply to a response must be filed w/in 15 days from date the response is filed; no extensions will be granted ; ( Signed by Judge Sam R. Cummings ) Copies to counsel: 1/28/03 Page(s) 2 (blr) (Entered: 01/28/2003)
120 RESPONSE by defendant United Parcel Servic to [99-1] motion to strike Al Yonovitz's Testimony or in alternative motion to exclude purported expert witness testimony of Al Yonovitz, [110-1] motion to strike Al Yanovitz's Testimony or in alternative to exclude purported expert testimony of Al Yanovitz (3) (mrr) (Entered: 02/05/2003)
120 (Alternative) MOTION by defendant United Parcel Servic for attorney's fees & costs (3) (mrr) (Entered: 02/05/2003)
121 MEMORANDUM by defendant United Parcel Servic in support of [120-1] motion response, [120-1] motion for attorney's fees & costs (18) (mrr) (Entered: 02/05/2003)
122 APPENDIX by defendant United Parcel Servic in support of [120-1] motion response, [120-1] motion for attorney's fees & costs (3+) (mrr) (Entered: 02/05/2003)
123 ORDER denying [110-1] motion to strike Al Yanovitz's Testimony or in alternative to exclude purported expert testimony of Al Yanovitz, denying [99-1] motion to strike Al Yonovitz's Testimony or in alternative motion to exclude purported expert witness testimony of Al Yonovitz ; Dr Yonovitz may testify as an expert witness on behalf of Deft ( Signed by Judge Sam R. Cummings ) Copies to counsel: 2/7/03 Page(s) 2 (blr) (Entered: 02/07/2003)
124 RESPONSE by plaintiff EEOC, intervenor-plaintiff Ernest Garcia in opposition to [112-1] motion for summary judgment (3) (mrr) (Entered: 02/11/2003)
125 MEMORANDUM by plaintiff EEOC, intervenor-plaintiff Ernest Garcia in support of [124-1] opposition response (59) (mrr) (Entered: 02/11/2003)
126 APPENDIX by plaintiff EEOC, intervenor-plaintiff Ernest Garcia in support of [124-1] opposition response (4+) (mrr) (Entered: 02/11/2003)
127 RESPONSE by defendant United Parcel Servic to [105-1] motion for partial summary judgment (3) (mrr) (Entered: 02/11/2003)
128 MEMORANDUM by defendant United Parcel Servic in support of [127-1] motion response (16) (mrr) (Entered: 02/11/2003)

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02/18/2003
02/20/2003 02/21/2003 02/25/2003 02/26/2003 02/26/2003 02/26/2003 03/04/2003
03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003

129 MOTION to Substitute Attorney. Added attorney Ronetta J Francis for Equal Employment Opportunity Commission, William C Backhaus for Equal Employment Opportunity Commission, Keri L Mallon for Equal Employment Opportunity Commission, Suzanne M Anderson for Equal Employment Opportunity Commission. Motion Filed by Equal Employment Opportunity Commission (blr, ) (Entered: 02/19/2003)
130 ORDER granting 129 Motion to Substitute Attorney. (Signed by Judge Sam R Cummings on 2/20/03) (blr, ) (Entered: 02/21/2003)
131 Unoppose MOTION to Substitute Attorney (Co-Counsel) Added attorney Donald W Griffis for United Parcel Service, Inc. Motion Filed by United Parcel Service, Inc (blr, ) (Entered: 02/24/2003)
132 ORDER granting 131 Motion to Substitute Attorney. ORDERED that Don Griffis be substituted for Rob Junell. (Signed by Judge Sam R Cummings on February 25, 2003) (mrr, ) (Entered: 02/26/2003)
133 (Deft's Reply in Support of Motion for Summary Judgment) REPLY to Response to Motion re [112] Motion for Summary Judgment filed by United Parcel Service, Inc. (mrr, ) (Entered: 02/26/2003)
134 Brief in Support re 133 Reply to Response to Motion filed by United Parcel Service, Inc. (mrr, ) (Entered: 02/27/2003)
135 Appendix in Support re 133 Reply Brief to Response to Motion for Summary Judgment filed by United Parcel Service, Inc. (mrr, ) (Entered: 02/27/2003)
136 ORDER denying [105] Motion for Partial Summary Judgment, granting in part and denying in part [112] Motion for Summary Judgment - Court GRANTS Deft's Motion for Summary Judgment with respect to Pltf's & Intervenor's record retention violation claim & DENIES Deft's Motion for Summary Judgement with respect to (1) Title VII national origin discrimination/harassment/hostile work environment claims; (2) Title VII retaliation claims; & (3) Title VII disparate treatment claim. Court also DENIES Pltf & Intervenor's Motion for Partial Summary Judgment. **See Order for specifics.** (Signed by Judge Sam R Cummings on March 3, 2003) (mrr, ) (Entered: 03/04/2003)
137 Deposition Summary of Daniel Minesinger filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
138 Deposition Summary of Samantha Van Pelt filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
139 Deposition Summary of Donna Gallicchio filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
140 Deposition Summary of Rick Glasebrook filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
141 Deposition Summary of Gary Naylor filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
142 Deposition Summary Nick M. Dattomo filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)

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03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003
03/21/2003 03/21/2003
03/21/2003 03/21/2003 03/24/2003
03/24/2003

143 Deposition Summary of Nancy Crittenden filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
144 Deposition Summary of Phil Collins filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
145 Deposition Summary of Mike Bryan filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
146 Deposition Summary of Jose Alvarado filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
147 Deposition Summary of Cipriano Salinaz filed by Equal Employment Opportunity Commission (mrr, ) Modified on 4/7/2003 (mrr, ). (Entered: 03/21/2003)
148 Deposition Summary of Terry Kiner filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/21/2003)
149 Proposed Jury Instructions by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) (Entered: 03/21/2003)
150 Proposed Jury Instructions by United Parcel Service, Inc. (mrr, ) (Entered: 03/21/2003)
151 Proposed Jury Questions by United Parcel Service, Inc. (mrr, ) (Entered: 03/21/2003)
152 Deposition Summary of Daniel Minesinger filed by United Parcel Service, Inc (mrr, ) (Entered: 03/21/2003)
153 TRIAL BRIEF SUPPORTING ITS POSITION THAT A "CONSTRUCTIVE DISCHARGE IS NOT A "TANGIBLE EMPLOYMENT ACTION" FOR PURPOSES OF THE FARAGHER/ELLERTH AFFIRMATIVE DEFENSE by United Parcel Service, Inc. (mrr, ) (Entered: 03/24/2003)
154 TRIAL BRIEF REGARDING THE ADMISSIBILITY OF COMPARATIVE EVIDENCE by United Parcel Service, Inc. (mrr, ) (Entered: 03/24/2003)
155 TRIAL BRIEF IN SUPPORT OF THE ADMISSIBILITY OF EVIDENCE THAT CERTAIN "AGGRIEVED PARTIES" WERE INVOLUNTARILY DISCHARGED FROM PREVIOUS & SUBSEQUENT JOBS by United Parcel Service, Inc. (mrr, ) (Entered: 03/24/2003)
156 DEPOSITION SUMMARY OF RICK GLASEBROOK filed by United Parcel Service, Inc (mrr, ) (Entered: 03/24/2003)
157 DEPOSITION SUMMARY OF TERRY KINER filed by United Parcel Service, Inc (mrr, ) (Entered: 03/24/2003)
158 DEPOSITION SUMMARY OF MICHAEL A. SANCHEZ filed by Equal Employment Opportunity Commission (mrr, ) Modified on 3/24/2003 (mrr, ). (Entered: 03/24/2003)
159 DEPOSITION SUMMARY OF MICHAEL ROJAS filed by Equal Employment Opportunity Commission (mrr, ) (Entered: 03/24/2003)

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03/24/2003 03/24/2003 03/31/2003 04/04/2003 04/04/2003
04/04/2003 04/04/2003 04/04/2003 04/04/2003 04/04/2003 04/04/2003 04/04/2003 04/04/2003

160 AMENDED DOCUMENT by United Parcel Service, Inc. Amendment to 151 Proposed Jury Questions. (mrr, ) (Entered: 03/25/2003)
161 AMENDED DOCUMENT by United Parcel Service, Inc. Amendment to 150 Proposed Jury Instructions.. (mrr, ) (Entered: 03/25/2003)
162 JOINT PRETRIAL ORDER filed by Pltf EEOC, Intervenor-Pltf Ernest Garcia & Deft UPS (Signed by Judge Sam R Cummings on March 31, 2003) (mrr, ) (Entered: 03/31/2003)
163 (RESPONSE in Opposition) OBJECTION TO DEFT'S WITNESSES AS IDENTIFIED IN DEFT'S PRE-TRIAL DISCLOSURES filed by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) (Entered: 04/07/2003)
164 (RESPONSE in Opposition re 156157 152) OBJECTIONS TO DEFT'S DEPOSITION SUMMARIES - Pltfs object to all Deposition Summaries in that they contain no designations as required per Court's Order issued 10/3/02. Pltfs object to Mr. Glasebrook's entire deposition summary. Pltfs object to Mr. Minesinger's entire deposition summary. Plts object to Mr. Kier's entire deposition summary. filed by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) (Entered: 04/07/2003)
165 (RESPONSE in Opposition re 154 Trial Brief) RESPONSE TO DEFT'S TRIAL BRIEF REGARDING ADMISSIBILITY OF COMPARATIVE EVIDENCE filed by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) (Entered: 04/07/2003)
166 RESPONSE in Opposition to Deft's Trial Brief on Faragher/Ellerth Affirmative Defense re 153 Trial Brief filed by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) (Entered: 04/07/2003)
167 RESPONSE in Opposition to Deft's Trial Brief on Admissibility of Evidence Releating to Prevous & Subsequent Jobs re 155 Trial Brief filed by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) (Entered: 04/07/2003)
168 Objections to Deft's 1st Amended Proposed Jury Instructions & Jury Questions (re Documents 160 & 161) filed by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) (Entered: 04/07/2003)
169 Objections to Deft's Exhibits & Brief in Support Thereof filed by Equal Employment Opportunity Commission, Ernest Garcia. (mrr, ) Modified on 4/7/2003 (mrr, ). (Entered: 04/07/2003)
170 Objections to Pltf's & Intervenor's Proposed Exhibits filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
171 Objections to Deposition Summary of Samantha Van Pelt re 138 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
172 Objections to Deposition Summary of Jose Alvarado re 146 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)

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173 Objections to Deposition Summary of Michael Rojas re 159 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
174 Ojbections to Deposition Summary of Michael Sanchez re 158 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
175 Objections to Deposition Summary of Phil Collins re 144 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
176 Objections to Witnesses Identified in Pltf's & Intervenor's Pretrial Disclosures & Witness List filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
177 Objections to Deposition Summary of Cipriano Salinaz re 147 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
178 Objections to Deposition Summary of Gary Naylor re 141 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
179 Objections to Deposition Summary of Donna Gallicchio re 139 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
180 Objections to Deposition Summary of Nancy Crittenden re 143 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
181 Objections to Deposition Summary of Mike Bryan re 145 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
182 Objections to Deposition Summary of Rick Glasebrook re 140 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
183 Objections to Deposition Summary of Terry Kiner re 148 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
184 Objections to Deposition Summary of Nick Dattomo re 142 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
185 Objections to Deposition Summary of Daniel Minesinger re 137 filed by United Parcel Service, Inc. (mrr, ) (Entered: 04/07/2003)
186 AMENDED Objections by United Parcel Service, Inc. Amendment to 175 Objections to Deposition Summary of Phil Collins. (mrr, ) (Entered: 04/07/2003)
187 AMENDED Objections by United Parcel Service, Inc. Amendment to 171 Objections to Deposition Summary of Samantha Van Pelt. (mrr, ) (Entered: 04/07/2003)
188 AMENDED Objections by United Parcel Service, Inc. Amendment to 178 Objections to Deposition Summary of Gary Naylor. (mrr, ) (Entered: 04/07/2003)
189 ORDER: Parties advised that Objections filed pursuant to Rule 26, FRCP, will be determined by Court at time of trial. (Signed by Judge Sam R Cummings on April 9, 2003) (mrr, ) Modified on 4/16/2003 (mrr, ). (Entered: 04/10/2003)
190 Jury Roll. (w/strike lists attached)(blr, ) (Entered: 04/29/2003)
191 Minute Entry for proceedings held before Judge Sam R Cummings : Jury Trial begun on 4/28/2003; Jury pool qualified; Voir Dire; Jury selected & sworn;

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Opening statements; Testimony heard & exhibits admitted (Court Reporter Mechelle Daniel.) (blr, ) (Entered: 04/29/2003)
192 Minute Entry for proceedings held before Judge Sam R Cummings : 2nd Day Jury Trial held on 4/29/2003. (Court Reporter Mechelle Daniel.) (blr, ) (Entered: 05/01/2003)
193 Minute Entry for proceedings held before Judge Sam R Cummings : 3rd Day Jury Trial held on 4/30/2003. (Court Reporter Mechelle Daniel.) (blr, ) (Entered: 05/01/2003)
194 MOTION to Recall Nancy Crittenden or in the Alternative to Use Her Deposition Testimony by Equal Employment Opportunity Commission, Ernest Garcia (blr, ) (Entered: 05/01/2003)
195 ORDER granting 194 Motion To Recall Nancy Crittenden (Signed by Judge Sam R Cummings on 5/1/2003) (blr, ) (Entered: 05/02/2003)
196 ORDER: the Order granting EEOC & Intervenor's Motion to Recall Nancy Crittenden signed 5/1/2003 is VACATED (Signed by Judge Sam R Cummings on 5/1/2003) (blr, ) (Entered: 05/02/2003)
197 RESPONSE in Opposition to Deft's Motion for Judgment as a Matter of Law (Oral Motion) filed by Equal Employment Opportunity Commission, Ernest Garcia. (blr, ) (Entered: 05/02/2003)
198 Minute Entry for proceedings held before Judge Sam R Cummings : 4th Day Jury Trial held on 5/1/2003 ; Court adjourned until Monday, May 5, 2003, at 8:30 am (Court Reporter Mechelle Daniel.) (blr, ) (Entered: 05/02/2003)
199 AMENDED RESPONSE by Equal Employment Opportunity Commission, Ernest Garcia. Amendment to 197 Response in Opposition to Deft's (oral) Motion for Judgement as Matter of Law & Brief in Support Thereof. (mrr, ) (Entered: 05/06/2003)
200 Minute Entry for proceedings held before Judge Sam R Cummings : Day 5 ofJury Trial held on May 5, 2003. Pltf's witnesses called & sworn. Testimony continued. Pltf rested. Oral Rule 50 motion presented. Motion denied. Deft's evidence began. Trial adjourned until 8:30 am 5/6/2003. (Court Reporter Mechelle Daniel.) (mrr, ) (Entered: 05/06/2003)
201 Minute Entry for proceedings held before Judge Sam R Cummings : Day 6 ofJury Trial held on May 6, 2003. Deft's witnesses called & sworn. Testimony given. Testimony continued. Defense rested. Charge conference. Trial adjourned until 8:30 am 5/7/2003. (Court Reporter Mechelle Daniel.) (mrr, ) (Entered: 05/07/2003)
202 Receipt for Exhibits signed by United Parcel Service, Inc (mrr, ) (Entered: 05/08/2003)
203 Receipt for Exhibits received by Ernest Garcia (mrr, ) (Entered: 05/08/2003)
204 Receipt for Exhibits received by Equal Employment Opportunity Commission (mrr, ) (Entered: 05/08/2003)

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205 Certification of Trial Exhibits for Jury Deliberations filed by Equal Employment Opportunity Commission, Ernest Garcia, United Parcel Service, Inc (mrr, ) (Entered: 05/08/2003)
Court's Charge to the Jury. (mrr, ) (Entered: 05/08/2003)
206 JURY VERDICT. Verdict for Defendant against Plaintiff, Intervenor Plaintiff.(mrr, ) (Entered: 05/08/2003)
207 Minute Entry for proceedings held before Judge Sam R Cummings : Jury Trial completed on May 7, 2003, Day 7 of Jury Trial held on May 7, 2003. Charge conference continued. Rule 50 motion reurged. Denied. Closing arguments. Jury in deliberation. Jury verdict. Pltf take nothing. (Court Reporter Mechelle Daniel.) (mrr, ) (Entered: 05/08/2003)
208 JUDGMENT in favor of Defendant against Plaintiff and Intervenor. Plaintiff and Intervenor take nothing as against the Defendant; all costs of court are taxed against Plaintiff and Intervenor (Signed by Judge Sam R Cummings on 5/8/2003) (blr, ) (Entered: 05/09/2003)
209 BILL OF COSTS by United Parcel Service, Inc. (mrr, ) (Entered: 05/23/2003)
210 MOTION for Partial Award of Attorney's Fees by United Parcel Service, Inc (mrr, ) (Entered: 05/23/2003)
211 Brief in Support re 210 MOTION for Partial Award of Attorney's Fees filed by United Parcel Service, Inc. (mrr, ) (Entered: 05/23/2003)
Costs Taxed in amount of $ 33,304.74 against Plaintiff EEOC & Intervenor Plaintiff Ernest Garcia (mrr, ) (Entered: 05/23/2003)
212 Appendix to Brief in Support of 210 MOTION for Partial Award of Attorney's Fees filed by United Parcel Service, Inc. (mrr, ) (Entered: 05/23/2003)
213 (PLTF'S OBJECTIONS TO) RESPONSE in Opposition re 209 Bill of Costs filed by Equal Employment Opportunity Commission. (blr, ) (Entered: 06/02/2003)
214 RESPONSE in Opposition re 210 MOTION for Attorney Fees filed by Equal Employment Opportunity Commission. (blr, ) (Entered: 06/11/2003)
215 RESPONSE in Opposition re 213 Response in Opposition to Deft's Bill of Costs filed by United Parcel Service, Inc. (blr, ) (Entered: 06/13/2003)
216 REPLY BRIEF to Response to Motion re 210 MOTION for Partial Award of Attorney's Fees filed by United Parcel Service, Inc. (mrr, ) (Entered: 06/25/2003)
217 UNFILED PER ORDER OF 7/7/03: **Sur-reply** Supplemental Response to 210 MOTION for Attorney Fees Following Reverse & Remand of Reeves Case filed by Equal Employment Opportunity Commission. (mrr, ) Modified on 7/8/2003 (mrr, ). (Entered: 07/03/2003)
218 Order Unfiling 217 (Supplemental Response to Deft's Motion for Attorney's Fees) Sur-reply to Response filed by Equal Employment Opportunity Commission due to the following deficiency: Leave of court required. (Signed by Judge Sam R Cummings on July 7, 2003) (mrr, ) (Entered: 07/08/2003)

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219 ORDER: Court GRANTS in part and DENIES in part Pltf's Objections to Deft's Bill of Costs as follows: fees for witness taxed against Pltf in amount of $4,556.94; fees for certified copies taxed against Pltf in amount of $407.32; fees for transcription of audiotapes taxed against Pltf in amount of $3,688.00; fees for copies of other pleadings & other papers in amount of $6,759.20 shall be disallowed. Fees of court reporter for transcript obtained for use in case taxed against Pltf in amount of $17,391.64. (Signed by Judge Sam R Cummings on July 16, 2003) (mrr, ) (Entered: 07/17/2003)
220 ORDER denying 210 Motion for Attorney Fees - Deft failed to satify its burden to show Pltf's claims were unreasonable, w/out some basis, frivolous, vexatious or made in bad faith (See Order for specifics) (Signed by Judge Sam R Cummings on 7/17/2003) (blr, ) (Entered: 07/18/2003)
221 MOTION for Leave to File Surreply to Deft's Motion for Attorney's Fees by Equal Employment Opportunity Commission with Brief in Support. (blr, ) (Entered: 07/18/2003)
222 ORDER denying as moot221 Motion for Leave to File. (Signed by Judge Sam R Cummings on 7/21/2003) (blr, ) (Entered: 07/21/2003)

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