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

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EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

Plaintiff,

) )

CIV CN-01 732

)

v.

) )

cOMPLAWllUAM W. DEAL ~- .

STERLING BROTHERS

)

CONSTRUCTION, INC.,

)

JURY TRIAL DEMANDED

)

Defendant.

)

)

RICHARD L. PUGLISI

NATURE OF THE ACTION

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

Rights Act of 1991 to correct unlawful employment practices on the basis of sex, and to

provide appropriate relief to charging party Deena Kieinegger who was adversely affected by

such practices. Defendant, Sterling Brothers Construction, Inc. ("defendant") subjected Ms.

Kleinegger to pervasive and egregious sexual harassment. Defendant engaged in

discrimination which adversely affected the employment status of Ms. Kleinegger because of

her sex.

As alleged with greater particularity below, the sexual harassment was committed by

defendant's president and principal stockholder. As a result of this unlawful conduct, the

conditions of employment were made so intolerable that Ms. Kleinegger was forced to resign

her employment.

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(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et ~ ("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 committed within the jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. The plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706(f)(1) and (3) ofTitle VII, 42 U.S.C. § 2000e-5(f)(I) and (3). 4. At all relevant times to this action, Sterling Brothers Construction, Inc., (the "defendant") has continuously been a New Mexico corporation doing business in the State of New Mexico and the Town of Aztec, and has continuously had at least fifteen employees. 5. At all relevant times, the defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Deena Kleinegger filed a charge with the Commission alleging violations of Title VII by defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
2

7. Since at least April, 2000 defendant has engaged in unlawful employment practices at its Aztec, New Mexico, facility in violation of Sections 703(a) of Title VII, 42 U.S.C. §§ 2000e-2(a). These practices include the sexual harassment of Deena Kleinegger by Bruce Sterling, the alter ego of the company. Moreover, the defendant had no process or mechanism for employees to report harassment and there was no managing official with higher authority than the president, Bruce Sterling. As a result, Deena Kleinegger was forced to resign her employment with defendant. The resignation of Deena Kleinegger was a constructive discharge. In support of its claims, Plaintiff further states that:
A. Deena Kleinegger worked as a secretary for defendant from July, 1999 to April, 2000. She worked under the direct supervision of the owners of the company, Bruce Sterling and Cathy Sterling.
B. Not long after she began her employment with the defendant, Bruce Sterling began to subject Deena Kleinegger to sexually offensive conduct. This conduct, which included physical touching, created a hostile environment for Deena Kleinegger.
C. Even though Deena Kleinegger on many occasions complained to Bruce Sterling that his conduct offended her, he continued to harass her.
D. As a result of Bruce Sterling's continued harassment and lack of any process or mechanism for reporting and remedying the sexually hostile work environment, Deena Kleinegger's working conditions became intolerable and she felt that she had no choice but to resign her position.
8. The effect of the practices complained of above has been to deprive Deena Kleinegger of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex.
3

9.

<, The unlawful employment practices complained of in Paragraph Seven 7)

above were intentional.
<, 10. The unlawful employment practices complained of in Paragraph Seven 7)

above were done with malice and/or reckless indifference to the federally protected rights of

Deena Kleinegger.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining defendant, its officers, successors,

assigns and all persons in active concert or participation with it, from engaging in sexual

harassment and any other employment practice which discriminates on the basis of sex.

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

which provide equal employment opportunities for women and which eradicate the effects of

its past and present unlawful employment practices.

C. Grant a judgment requiring defendant to pay appropriate back wages in an

amount to be proved at trial to make Deena Kleinegger whole, together with prejudgment

interest.

D. Order defendant to make whole Deena Kleinegger, by providing affirmative

relief and compensation for past and future non-pecuniary losses resulting from the unlawful
practices complained of in Paragraph Seven <1 7) above, including, but not limited to, rightful

place reinstatement, front pay, and any past or future costs incurred for obtaining medical

treatment or counseling, in amounts to be proved at trial.

E. Order defendant to make whole Deena Kleinegger by providing compensation

for past and future non-pecuniary losses resulting from the unlawful practices complained of in

4

<, Paragraph Seven 7) above, including emotional pain, suffering, loss of enjoyment of life,
and humiliation in amounts to be determined at trial. F. Order defendant to pay Deena Kleinegger punitive damages for its malicious
<, and/or reckless conduct complained of in Paragraph Seven 7) above, in amounts to be
determined at trial. G. Grant such further relief as the Court deems necessary and proper in the public
interest. H. Award the Commission its costs in this action. JURy TRIAL DEMANDED The Commission requests a jury trial on all questions of fact raised by its Complaint.
DATED thisl_~d~aky of ~ ylA.C ,2001.
Respectfully submitted, GWENDOLYN YOUNG REAMS Acting Deputy General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507
La it-IlI(\tt. ~. ~/)lJ1At1.....
C. EMANUEL SMITH Acting Regional Attorney
SANDRA J. PADEGIMAS Acting Supervisory Trial Attorney
5

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Phoenix District Office 3300 N. Central Avenue Suite 690 Phoenix, Arizona 85012
L(t:BJ1J('riA. (/ hl!t~
VERONICA A. MOLINA Trial Attorney LORETTA MEDINA Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5031 Attorneys for Plaintiff
6

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.
STERLING BROTHERS CONSTRUCTION, INC.,
Defendant.

CIVIL NO. 01-732 WJ/RLP

ORDER GRANTING DEFENDANT’S MOTION TO COMPEL THIS MATTER having come before the court on Defendant’s Motion to Compel (Docket No. 32), the court having read the motion, the memoranda in support of and opposition to the motion and otherwise being fully advised, finds that the motion is well taken and will granted. Defendant’s Motion to Compel is made pursuant to Fed.R.Civ.P. 37 and is directed specifically to Defendant’s Request for Production of Documents Nos. 10 and 11. Defendant focuses on the production of tax returns for the years 1998, 1999 and 2000 in Request for Production No. 10. Plaintiff has already produced income tax returns for the years 1998 and 2000. Therefore, the motion is directed to secure the 1999 tax returns. In Request for Production No. 11, Defendant seeks an educational and employment records release directed at educational institutions attended by Plaintiff as well as Plaintiff’s former employers. Rule 26(b) requires disclosure of information that is “reasonably calculated to lead

to the discovery of admissible evidence.” Evidence does not need to be admissible to be relevant and thus discoverable. Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). The plaintiff’s 1999 tax return clearly falls within the parameters of evidence that is discoverable under Rule 26 given the fact that Plaintiff was employed by Defendant during that year and, therefore, disclosure of this tax return may lead to admissible evidence regarding damages and other sources of income or even other employers of Plaintiff. Clearly, disclosure of employment records of Plaintiff may lead to evidence relating to other claims of sexual harassment or may lead to evidence pertaining to the subjective proclivities of Plaintiff in the employment context. Therefore, both the tax returns and the employment records release clearly fall within the parameters of Rule 26.
A successful party to a motion to compel is entitled to recover expenses including a reasonable attorney fee from the losing party. See Equal Employment Opportunity Comm’n v. Klockner H & K Machines, Inc., 168 F.R.D. 233, 236 (E.D. Wis. 1996). The award of expenses and fees by the court is mandatory unless the losing party demonstrates that its conduct was “substantially justified”or if other circumstances render an award of expenses “unjust”. See Rickels v. City of South Bend, Ind., 33 F.3d 785 (7th Cir. 1994). The position of the plaintiff was not substantially justified. Disclosure of financial information as well as employment information in an employment discrimination case is routine. Therefore, the court awards Defendant $250.00 in attorney’s fees as a sanction pursuant to Rule 37(a). Should either party request a hearing on the reasonableness of this attorney fee award, a request for a hearing should be made in writing no later than February 28, 2002. A hearing on the attorney fee request will be set
2

thereafter by telephone and will only address the reasonableness of the attorney fee award. If there is no request for a hearing on the reasonableness of the attorney fee award by February 28, 2002, Plaintiff shall pay to Defendant the attorney’s fees in the amount of $250.00 no later than March 8, 2002.
IT IS SO ORDERED. RICHARD L. PUGLISI
United States Magistrate Judge
3

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.
STERLING BROTHERS CONSTRUCTION, INC.,
Defendant.

CIVIL NO. 01-732 WJ/RLP

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S FIRST SET OF NON-UNIFORM INTERROGATORIES AND FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS
THIS MATTER having come before the court on Plaintiff’s Motion to Compel
Responses to Plaintiff Equal Employment Opportunity Commission’s First Set of Non-
Uniform Interrogatories and First Request for Production of Documents (Docket No. 26),
the court having read the motion, the memoranda in support of and opposition to the
motion and otherwise being fully advised, finds that the motion is well-taken in part and will
be granted in part.
This is a simple case wherein the plaintiff, Equal Employment Opportunity
Commission, (“EEOC”) has alleged that Defendant engaged in sexual harassment of one
of its employees during her nine months of employment and that this harassment resulted
in her resignation. The parties disagree regarding the appropriateness of 14

interrogatories and requests for production of documents. The court’s ruling is as follows: Interrogatory No. 8: Objection is sustained in part. Defendant shall provide
information requested from July 1999 to April 2000. Request for Production No. 22: Objection is sustained in part. Defendant shall
produce the documentation requested from July 1999 to April 2000. Request for Production No. 6: Objection is sustained on the grounds the request
is ambiguous and overly broad. Request for Production Nos. 9, 10, 11 and 12 requests financial information
related to Defendant. Plaintiff claims the information is relevant to her claim for punitive damages. The objections are sustained in part. Given the fact that there is a punitive damage claim, Plaintiff is entitled some net worth discovery. Therefore, Defendant shall produce a copy of its most current profit and loss statement.
Request for Production Nos. 13, 15 and 16 relate to various construction contracts and/or construction jobs. The various requests would potentially relate to hundreds of pages of documents that may or may not be relevant. Plaintiff did not specifically set forth in its memorandum why these various documents would be either relevant or lead to information that is relevant. Therefore, given the overly broad nature of each of the requests, the objections to these requests are sustained.
Request for Production No. 18: The objection is sustained. Request for Production No. 19: The objection is sustained. Request for Production No. 20: The objection is overruled. Mr. Sterling’s personnel file shall be disclosed upon the endorsement by all parties to an appropriate
2

confidentiality order. Request for Production No. 24: The objection is sustained as overly broad and
unduly burdensome. IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Responses to
Plaintiff Equal Employment Opportunity Commission’s First Set of Non-Uniform Interrogatories and First Request for Production of Documents is granted in part and denied in part as set forth hereinabove.
IT IS SO ORDERED. RICHARD L. PUGLISI
United States Magistrate Judge
3

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

vs.

No. CIV-01-0732 WJ/RLP

STERLING BROTHERS CONSTRUCTION, INC.,

Defendant.

ORDER OVERRULING PLAINTIFF EEOC’S OBJECTIONS TO MAGISTRATE’S ORDER
GRANTING DEFENDANT’S MOTION TO COMPEL

THIS MATTER comes before the Court pursuant to Plaintiff EEOC’s Objections to

Magistrate’s Order Granting Defendant’s Motion to Compel (Docket No. 45). According to

Rule 72(a) of the Federal Rules of Civil Procedure: “The district judge to whom the case is

assigned shall consider such objections and shall modify or set aside any portion of the magistrate

judge’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.Pro. 72(a). The

Seventh Circuit has stated that a magistrate’s decision, to be found erroneous “ . . . must strike us

as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a

five-week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866

F.2d 228, 233 (7th Cir. 1988). No such odor is detectable from Judge Puglisi’s Order Granting

Defendant’s Motion to Compel. While the Court seriously considered imposing additional

attorney’s fees for what the Court considers to be a frivolous appeal of a valid discovery order,

the Court notes that counsel for Defendant and counsel for Plaintiff were able to resolve some

discovery matters in another appeal of a different discovery order. Accordingly, Defense counsel

did not totally waste her time or her client’s money in attending the May 14, 2002 court hearing.

The Court will, however, leave the $250.00 Rule 37(a) sanction in place, as the Court notes that Judge Puglisi afforded Plaintiff the opportunity to request a hearing on the reasonableness of the Rule 37(a) sanction award and Plaintiff chose not to request such a hearing.
IT IS THEREFORE ORDERED that Plaintiff EEOC’s Objections to Magistrate’s Order Granting Defendant’s Motion to Compel (Docket No. 53) are hereby overruled.
IT IS FURTHER ORDERED that the Order Granting Defendant’s Motion to Compel (Docket No. 45) shall remain in full force and effect and Plaintiff shall produce those items ordered to be produced by Judge Puglisi.
UNITED STATES DISTRICT COURT JUDGE
Page 2

 
 F I L E D IN THE UNITED STATES DISTRICT COURT llNITED STATES DISTRICT COURT ALBUQUERQUE, NEW MEXICO FOR THE DISTRICT OF NEW MEXICO
MAY 212002

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

~~-'-~
CLERK

vs.

No. CIV-OJ-0732 WJ/RLP (ACE)

STERLING BROTHERS CONSTRUCTION, INC.,

Defendant.

ORDER GRANTING IN PART AND OVERRULING IN PART PLAINTIFF EEOC'S OBJECTIONS TO MAGISTRATE'S ORDER
DENYING PLAINTIFF'S MOTION TO COMPEL

This matter comes before the Court pursuant to Plaintiff EEOC's Objections (Docket

No. 56) to Magistrate's Order Denying Plaintiff's Motion to Compel (Docket No.46). The Court

having heard argument on Plaintiff's Objections and the parties having mutually resolved issues

related to Plaintiff's Objections, finds as follows:

•

The EEOC's Objections are overruled to the extent the underlying discovery was

overbroad and unduly burdensome.

•

The EEOC's Objections are granted, in part, as follows:

1. Regarding the EEOC's Request for Production Number 13, Defendant

previously provided documents showing errors made by Plaintiff while

employed for Defendant. Defendant will make available for inspection the

files from which the previously-provided documents were obtained;

provided, however, that such files shall be provided only for the time

period from July, 1999 through April, 2000.

2. Defendant will make available for inspection files related to the City of

Farmington sidewalk contract(s) for the period from July, 1999 through

April, 2000.

3. Defendant will make available for inspection files related to the Farmington

Airport improvements contract(s) for the period from July, 1999 through

April, 2000.

•

All files will be produced for inspection at the offices of Sterling Brothers

Construction in Aztec, New Mexico and will be available for inspection no later

than May 21,2002.

IT IS, THEREFORE, ORDERED that Plaintiff EEOC's Objections (Docket No. 56) to

Magistrate's Order Denying Plaintiffs Motion to Compel (Docket No. 46) is hereby denied in part

and granted in part, as described above.

Dated:

2

Submitted by: GILKEY & STEPHENSON, P.A.
By: ~~ B~ arb~ ar~ a G~. - St- ep- he- ns- on----­ Carol L. Dominguez
Attorneys for Defendant P.O. Drawer 25566 Albuquerque, NM 87125 (505) 242-4466 (505) 242-3145 (fax)
Approved by: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
By: ________________________ Veronica Molina
Attorney for Plaintiff 505 Marquette, N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 (505) 248-5217 (fax)
3

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

Civil No. 01-0732 WJ/RLP ACE

STERLING BROTHERS CONSTRUCTION, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court upon Defendant’s Motion for Summary

Judgment, filed March 19, 2002 (Doc. 60). The complaint, filed by Plaintiff EEOC, alleges that

Deena Kleinegger was sexually harassed by Sterling’s owner and president, Bruce Sterling, and

was constructively discharged as a result.1 Having considered the parties’briefs and the

1 It is not clear whether Plaintiff is alleging harassment as a quid pro quo or hostile environment claim. Under the Ellerth/Faragher analysis setting out the standard for employer liability in Title VII actions, an affirmative defense is not available to employers in cases where a tangible employment action occurred, i.e., a quid pro quo claim. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, courts have disagreed on whether constructive discharge can be considered a tangible employment action for purposes of alleging a quid pro quo case. See, e.g., Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294 (2d Cir.1999) (concluding that constructive discharge does not constitute a “tangible employment action,” as that term is used in Ellerth); Morton v. Steven-Ford Mercury of Augusta, Inc., 162 F.Supp. 2d 1228, 1244 (D. Kan. 2001) (reasoning that “tangible employment actions” under Ellerth and Faragher are limited to those situations in which the alleged harasser directly fired, demoted or reassigned the victim of harassment); see also Rogers v. City County Health Department of Okla. County, 2002 WL 241296 n.2 (10th Cir. 2002 (Okla.)) (plaintiff unable to survive summary judgment on quid pro quo claim based on a constructive discharge theory); but see Bowman v. Shawnee State Univ., 220 F.3d 456, 462 n.6 (6th Cir. 2000) (assuming without discussion that constructive discharge was a tangible employment action); Cardenas v. Massey, 269 F.3d 251, 266 (3rd Cir. 2001)

applicable law, I find that Defendant’s motion will be granted in part and denied in part. Ms. Kleinegger started working as a secretary at Sterling Brothers Construction, Inc.
(“Sterling Brothers”), a small general contracting business located in Aztec, New Mexico, in July 1999. Plaintiff EEOC alleges that the harassing conduct started three months after Ms. Kleinegger started the job and continued up until a week prior to her leaving in May of 2000. Ms. Kleinegger allegedly was afraid to complain. The only other company officer or manager other than Bruce Sterling was his wife Cathy. According to Ms. Kleinegger, she had both witnessed and been on the receiving end of Cathy Sterling’s “violent outbursts,” and felt she was physically at risk reporting the harassing incidents to Ms. Sterling.
Summary judgment is proper if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying "a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994). Analysis
Plaintiff contends that Mr. Sterling “poked” and “pinched” Ms. Kleinegger in the rib cage
(same); Stricker et al. v. Cessford Construction Co. et al., 179 F.Supp. 2d 987, 1002 (N.D.Iowa 2001) (noting that the Eighth Circuit has intimated that constructive discharge may constitute a "tangible employment action" depriving a defendant of the Ellerth/Faragher defense) (emphasis added); see also Montero v. AGCO Corp., et al., 192 F.3d 856, 891 (9th Cir. 1999) (finding a determination on issue unnecessary).
2

area, beneath the line of her bra. This conduct started after she had worked at Sterling Brothers for three months, became more frequent in November 1999, and continued in January 1999. Plaintiff estimates that this conduct occurred twenty to thirty times. During the same period of time, Mr. Sterling would go out to Ms. Kleinegger’s work area, and if she was sitting, grab hold of her chair so that she could not get up, place his boot over the top of her boots and lean over her “with a sexual look,” as though he were aroused. Pltff’s Ex. 2, Ms. Kleinegger’s Aff, p. 2-3. This type of behavior occurred about five or six times. Ms. Kleinegger also claims that Mr. Sterling “grabbed and squeezed” her buttocks while she was going past him through a doorway. Deft’s Ex. D at 109. One week prior to her leaving the job, as she was straightening up papers on her desk, Ms. Kleinegger felt Mr. Sterling run his foot up the inside of her thigh to within two inches of her crotch. Mr. Sterling denies these incidents as having occurred.2
These incidents of harassment are set forth as “claims” in Defendant’s statement of undisputed facts. Plaintiff disputes those facts on the basis that the use of the word “claims” challenges Ms. Kleinegger’s credibility which is irrelevant at this stage in the litigation. At the same time, Plaintiff does not dispute that Ms. Kleinegger made such claims, which I find are sufficient to support an inference of sexual harassment. Defendant also peppers these statements of undisputed facts with statements that Ms. Kleinegger offers no witnesses or exact dates to the alleged incidents. However, Plaintiff’s inability to dispute those statements have no bearing on the sufficiency of the evidence presented through Ms. Kleinegger’s affidavit and deposition testimony as to the existence of a hostile working environment.
2 Ms. Kleinegger states that the harassing conduct set out in the EEOC complaint does not include all the incidents because the interviewer “did not ask me to tell him everything.” Pltff’s Ex. 2, ¶ 21.
3

Legal standard Title VII’s prohibition against sex discrimination includes a ban on sexual harassment.
Harris v. Forklift Systems, Inc, 510 U.S. 17 (1993) 114 S.Ct. 367, 370; Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). For a hostile environment claim to survive a summary judgment motion, a plaintiff must show that a rational jury could find that the workplace is “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1264 (10th Cir.1998) (quotations omitted). In order to determine whether conduct was sufficiently severe or pervasive enough to be actionable sexual harassment, a court must consider "the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Cadena v. The Pacesetter Corp., 18 F.Supp.2d 1220, 1226 (D.Kan.1998) (citing Faragher, 524 U.S. 775 (1998) (internal quotes omitted). In considering these factors, a court also must consider the context in which the conduct occurred. Id. (citing Smith v. Norwest Financial Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir.1997)).
The harassing conduct must be "both objectively and subjectively abusive." Turnbull v. Topeka State Hospital et al, 255 F.3d 1238, 1243 (10th Cir. 2001) (citation omitted). Thus, I must consider not only effect the discriminatory conduct actually had on Ms. Kleinegger, but also the impact it likely would have had on a reasonable employee in her position. See Saxton v. Amer. Telephone & Telegraph Co., 10 F.3d 526, 534 (7th Cir. 1993). Ms. Kleinegger states that she told Mr. Sterling that she didn’t want him touching her and that she knew his wife would be
4

very jealous if she caught him doing those things, and that she felt angry, powerless and humiliated. Ms. Kleinegger found it difficult to concentrate on her job duties while Mr. Sterling was at the shop. She states that she asked Sue Beck, co-worker, to keep an eye out and never leave her alone with Mr. Sterling because she felt uncomfortable being alone with him and was afraid he would make advances.
Ms. Kleinegger stated in her deposition that when Mr Sterling poked her under her breast she told him to stop because she was ticklish and that she shook her finger at him when he ran his foot up her leg. Defendant seems to take issue with the seriousness of these last responses in terms of Ms. Kleinegger making her discomfort clear to Mr. Sterling. However, in the context of all the circumstances, a reasonable juror could find that the alleged conduct had a sufficiently adverse effect on Ms. Kleinegger in that she found this physical contact to be humiliating and that the conduct interfered with her work environment. See Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (rejecting a mechanical approach to analyzing hostile work environment claims in favor of making the determination "in light of the record as a whole," including "the context in which the alleged incidents occurred").
The evidence suggests that a reasonable person could have found the environment to be hostile in its pervasiveness, if not its severity.3 The harassment was physical in nature, and the alleged harasser is the owner of the company. See, e.g., Davis v. UPS et al., 142 F.3d 1334 (10th Cir. 1998) (holding that incidents of unwelcome hugging and kissing and other physical contact
3 The harassing conduct must be sufficiently pervasive or sufficiently severe to alter the terms, conditions, or privileges of Plaintiff's employment. See Smith v. Norwest Financial Acceptance, Inc.,129 F.3d 1408, 1412 (10th Cir. 1997) (noting the disjunctive nature of the inquiry).
5

by plaintiff’s co-worker, one of which could be described as a physical assault, were sufficient to support a jury finding of a hostile work environment); Rogers v. City County Health Department of Okla. County, 2002 WL 241296 n.2, *3 (10th Cir.2002 Okla) (“troubling” scenario because alleged harasser was not “simply a co-worker . . . but instead the highest ranking official in the Health Department”). Given the period of time Ms. Kleinegger was employed at Sterling Construction, the incidents occurred frequently enough to support a finding that the conduct was pervasive and objectively unwelcome. See Ogden v. Wax Works, Inc., 214 F.3d 999, 1006 (8th Cir. 2000) (evidence supported jury’s conclusion that collection of physical advances, propositions, and mistreatment plaintiff endured for more than a year was both unwelcome and offensive, and sufficiently severe or pervasive to alter the conditions of employment).
On the other hand, instances of yelling and vulgarity by Bruce and Cathy Sterling do not figure into the creation of a hostile work environment. Ms. Kleinegger claims that both individuals were prone to outbursts around the office, and remembers one time Cathy Sterling threatened to break her “goddam fingers” when she placed the mail on Ms. Sterling’s calculator. She also claims that after she had worked at Sterling Construction a few months, Mr. Sterling came by her work area and screamed at her for “about an hour” using the word “goddam.” Deft’s Ex. D at 85. In the context of Plaintiff’s work environment and the relatively innocuous nature of the profanity, neither these example nor others presented by Plaintiff meet the standard for a hostile work environment, see Gross v. Burggraf Construction Co., 53 F.3d 1531, 1546 (10th Cir. 1996), nor can they be considered sexually explicit or offensive. See Winsor v.
6

Hinckley Dodge, Inc., 79 F.3d 996, 1001 (10th Cir. 1996).4
Defendant challenges the testimony of certain witnesses on the basis that this testimony
contradicts Plaintiff’s allegations. My review of the presented testimony indicates that these
inconsistencies do not erode the basic factual issues underlying the alleged incidents of
harassment. For example, whether or not Plaintiff discussed Mr. Sterling’s behavior with co-
worker Sue Beck while they were both working together and whether Ms. Beck actually
witnessed any of the incidents bears on Plaintiff’s credibility and is a matter more appropriately
addressed and resolved by a fact finder, and not by the Court on a summary judgment motion.
See Bisbee v. Bey, 39 F.3d 1096, 1101 (10th Cir. 1994) (questions of credibility should be
decided by the jury).5 I also do not find Ron Darnell’s testimony to be inadmissible hearsay, as it
would be admissible as a prior consistent statement of Ms. Kleinegger.6 See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (content or the substance of the evidence, if not the form, must
4 In her affidavit, Ms. Kleinegger stated that she believed that Mr. Sterling would yell and scream at her because he was angry that she was not receptive to his advances. Even so, Mr. Sterling’s actions could not be construed as a tangible employment action for purposes of characterizing the claim as quid pro quo because yelling and screaming at an employee does not result in economic injury. See Mallinson-Montague et al. v. Pocrnick et al, 224 F.3d 1224 (10th Cir. 2000) (tangible action is material, significant, or causes economic injury); see also Ellerth, 524 U.S. at 751-54 (distinction between hostile environment and quid pro quo cases remain relevant only to the extent they illustrate the evidentiary distinction between cases involving threats which are carried out and those featuring offensive conduct in general).
5 For example, Sue Beck stated that she saw Mr. Sterling push Ms. Kleinegger’s pant leg “up just a little ways. . . just a couple of inches. . . up her boot.” Deft’s Ex. G at 77. She also stated that Ms. Kleinegger told her that Mr. Sterling would grab at the area underneath her ribs. Ex. G at 68. However, Ms. Kleinegger does not remember talking with Ms. Beck at all before she quit her job. Deft’s Ex. D at 143. Also, in her EEOC statement, she stated that there were no witnesses to any of the incidents. Ex. D, attachment 13.
6 Mr. Darnell is an employee whom Ms. Kleinegger dated while she worked at Sterling Construction.
7

be admissible at trial). Further, because Mr. Darnell is listed as a witness, his testimony will be available and subject to cross-examination at trial. Id. (Fed.R.Civ.P.56(e) supporting materials need not themselves be admissible in evidence so long as they demonstrate availability of admissible evidence at trial). Constructive Discharge
The existence of a viable hostile environment claim alone does not support Plaintiff’s constructive discharge claim. See Spulak v. KMart Corp., 894 F.2d 1150, 1153 (10th Cir. 1990) (finding of constructive discharge based not only on discriminatory act but on aggravating factors that make staying on the job intolerable); accord, James v Sears, Roebuck and Co., Inc., 21 F.3d 989, 992 (10th Cir. 1994). Constructive discharge occurs when the employer by its illegal discriminatory acts has “made working conditions so difficult that a reasonable person in the employee’s position would feel compelled to resign.” Sanchez v. Denver Publ. Schools, 164 F.3d 527, 531, 534 (10th Cir. 1998). However, a plaintiff’s subjective views of the working conditions are irrelevant. Id. Rather, in determining whether a plaintiff voluntarily resigned or was constructively discharged, the Court must consider the totality of the circumstances under an objective standard. See Yearous v. Niobrara County Mem’l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997).
Ms. Kleinegger was not forced to leave Sterling Construction; she resigned. See Parker v. Bd. of Regents of Tulsa Junior College, 981 F.2d 1159 (10th Cir. 1992) (“If an employee resigns of her own free will, even as a result of the employer’s actions, that employee will not be held to have been constructively discharged”). Looking at the circumstances in this case through the lens of an objective standard, even when considering the evidence in Plaintiff’s favor, I find that the
8

evidence does not support an inference that Ms. Kleinegger was constructively discharged. Notwithstanding Ms. Kleinegger’s contentions that she had no other choice but to quit, Plaintiff presents no facts which would persuade a reasonable juror to find the same. See Derr v. Gulf Oil Corporation, 796 F.2d 340, 343 (10th Cir. 1986) (issue is whether a reasonable person in plaintiff’s position would have viewed the working conditions as intolerable).
THEREFORE, IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 60) is hereby DENIED IN PART and GRANTED IN PART as follows: the motion is DENIED on Plaintiff’s claim of hostile environment based on sexual harassment, and GRANTED on Plaintiff’s claim of constructive discharge, which claim is hereby DISMISSED WITH PREJUDICE.
UNITED STATES DISTRICT JUDGE
9

 
 FILED
UNlrED STATES DISTRICT COURT ALBUQUERQUE, NEW MEXICO

JAN 022003

~??7"-.t. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

CLERK

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

STERLING BROTHERS

)

CONSTRUCTION, INC.,

)

)

Defendant.

)

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

CIV 01-0732 WJ/RLP(ACE) CONSENT DECREE

The United States Equal Employment Opportunity Commission (the "Commission" or

"EEOC") filed this action against Sterling Brothers Construction, Inc.("Defendant") ofAztec, New

Mexico to enforce Title VII of the Civil Rights Act, as amended, 42 U.S.c. §2000e et seq. (Title

VII). The Commission alleges that the Defendant subj ected Deena M. Kleinegger to sexual

harassment in violation of Title VII. Defendant denied and continues to deny all allegations of

sexual harassment and all allegations set forth in the EEOC's Complaint.

This Decree does not constitute an admission of liability by the Defendant, nor an

adjudication on the merits of the allegations in the complaint. The parties do not object to the

jurisdiction of the Court over this action and waive their rights to a jury trial.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

I. This Decree resolves all claims of the Commission and Deena M. Kleinegger brought

against the Defendant, including the Commission's and Ms. Kleinegger's claims for monetary

damages and injunctive relief.

INJUNCTION 2. While there is no factual finding in this case on the violations alleged and Defendant has contested liability, the Defendant, its officers, agents, employees, successors, assigns and all persons in active concert or participation with it, are enjoined for the duration of the Decree from discriminating against any employee based on his or her sex, including sexual harassment, and from retaliating against any employee who: (a) opposes practices made unlawful by Title VII or a state equal employment statute, (b) makes a charge of discrimination or assists or participates in an investigation or proceeding under Title VII or a state equal employment statute, or (c) files an internal complaint of discrimination. This injunction will remain in effect for the duration of the Decree at any facility operated by the Defendant and any of its successors.
CONSIDERATION TO DEENA M. KLEINEGGER 3. In accordance with this Decree and with her signed Settlement Agreement and Release, DeenaM. Kleinegger shall receive twenty thousand dollars ($20,000.00) consideration from Sterling Brothers Construction, Inc. in exchange for a full and complete settlement of all claims against the Defendant arising out of the facts and issues included in this lawsuit. Additionally, Defendant agrees to forgive the sum of two thousand four hundred fifty two dollars ($2,452.00) owed by Ms. Kleinegger to Defendant. 4. The Defendant shall pay the $20,000.00 consideration amount via business check within five (5) days of entry of this Decree. 5. The check provided for in paragraph 4 ofthis decree shall be made payable to Deena M. Kleinegger and shall be mailed directly via certified mail to Ms. Kleinegger at the address provided by the EEOC. Within five days of issuance of the check, the Defendant shall submit a copy of the check and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque District Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102.
2

6. The Defendant shall expunge from the personnel files of Deena M. Kleinegger all

references, if any, to the charge of discrimination filed against Defendant by Ms. Kleinegger.

7. In response to any employment inquiries or reference checks concerning Deena M.

Kleinegger, the Defendant shall provide only Ms. Kleinegger's dates of employment, position held,

job duties and starting and ending salary. This provision shall remain in force for so long as Ms.

Kleinegger uses the Defendant as a reference and is not limited to the two years of this Decree.

8.

The Defendant shall not take any action against Deena M. Kleinegger or retaliate

against any witness in this case for filing a charge of employment discrimination or for participating,

assisting or testifying in this action.

DEFENDANT'S POLICIES AND PRACTICES

9. The Defendant shall carry out policies and practices that promote a work environment

free from sex discrimination, including sexual harassment of its employees, and that allow

employees to raise concerns or complaints without retaliation about matters made unlawful by Title

VII, whether alleged, perceived or actual. Defendant shall designate in its policy the option for

employees who have complaints of discrimination of making their complaints to a third party not

affiliated with the Defendant. For the duration of this Decree, Defendant shall distribute a copy of

its sexual harassment policy to each of its current full and part-time employees, and to each new

employee hired with an expectation of working ninety (90) or more days.

TRAINING AND COUNSELING

10. The Defendant shall provide training on sex discrimination and harassment

according to the following terms:

A. The Defendant shall retain and pay for a consultant/lecturer to provide consultation

and training for one seminar-training session each year this Decree is in effect.

Defendant intends to solicit the New Mexico Human Rights Commission to provide

this training. All owners, supervisors and employees of the Defendant shall attend

3

the seminar-training sessions. Duplicative sessions may be held to accommodate staffing needs. The Defendant shall be responsible for any additional costs to provide such duplicative sessions which may be provided by videotape. B. The first seminar-training session shall be conducted within three (3) months of the entry ofthis Decree. The second training session shall take place on or about the first anniversary of the initial training session. C. The consultant/lecturer shall be a person(s) acceptable to the Commission. The Commission has indicated that training through the New Mexico Human Rights Commission is acceptable. The Defendant shall submit the name(s), addressees), telephone number(s), and resume(s) of the proposed consultantllecturer(s) together with the dates of the proposed seminar-training sessions and the details of the contents of the training to the Regional Attorney ofthe Albuquerque District Office ofthe Equal Employment Opportunity Commission within sixty days ofthe entry of this Decree. The Commission shall have twenty days from the date of receipt ofthe information described above to accept or rej ect the proposed consultant/lecturer and/or the contents of the training. D. The seminar-training sessions shall be the standard (in length and content) training session offered by the New Mexico Human Rights Commission regarding harassment and sexual harassment issues. All personnel, designated in Paragraph A shall both register and attend the seminar-training session. The registry of attendance shall be retained by the Defendant for the duration of the Decree. E. The training shall include the subject of what constitutes sex discrimination, including sexual harassment, harassment based on gender, and retaliation; that sex discrimination in the hiring, firing, compensation, assignment or other terms, conditions or privileges of employment and retaliation violates Title VII; how to
4

prevent sex discrimination and retaliation, how to provide a work environment free from sex discrimination, sexual harassment and retaliation, and to whom and by what means employees may complain if they feel they have been subjected to sex discrimination, sexual harassment and retaliation in the workplace. F. For the duration of this Decree, at or around the time of their hire, new employees hired with an expectation of working ninety (90) or more days shaH attend any seminar-training sessions; employees hired after the seminar-training sessions are presented shall view a video tape of the training and/or a professional training tape which covers the topics set forth in 10.E. and shaH be given any written material disseminated at the seminar-training sessions. 11. The Commission, at its discretion, may designate Commission representatives to attend and fully participate in the seminar-training sessions described above. 12. The Defendant shall post within thirty (30) days ofthe entry of this Decree, for a period oftwenty-four (24) months in a prominent place frequented by its employees, the Notice attached to this Decree as Exhibit A. This Notice shaH be the same type, style and size as in Exhibit A.
REPORTING BY DEFENDANT AND ACCESS BY EEOC 13. The Defendant shall report in writing and in affidavit form to the Regional Attorney of the Commission's Albuquerque District Office at 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102, beginning six months from the date of the entry of this Decree, and thereafter every six months for the duration of the Decree the foHowing information: A. Any changes, modifications, revocations, or revisions to its policies and procedures
which concern or affect the subject of sex discrimination. B. The registries of persons attending each ofthe seminar-training sessions required in
paragraph 10 ofthis Decree and a list ofcurrent employees on the day ofthe seminarS

training session.

C. An affidavit stating that the Notice required in paragraph 12 of this Decree was

posted and the locations where it was posted.

14. The Commission, upon reasonable notice, shall have the right to enter and inspect the

Defendant's facilities to ensure compliance with this Decree and federal anti-discrimination laws.

COSTS AND DURATION

15. Each party shall bear its costs and attorney's fees incurred as a result of this action

through the filing of this Decree.

16. The duration of this Decree shall be two (2) years from its entry. This Court shall

retain jurisdiction of this action for the duration of the Decree, during which the Commission may

petition this Court for compliance with this Decree. Should the Court determine that Defendant

has not complied with this Decree, appropriate relief, including extension of this Decree for such

period as may be necessary to remedy its non-compliance, may be ordered.

17. This Decree shall expire by its own terms at the end of two (2) years after entry,

without further action by the parties.

18. The parties agree to entry of this Decree and judgment subject to final approval by

IRe thiS~~Of the Court. ENTERED AND ORDERED

(~,.,.... ~ ,2002.

THE HONORABLE WILL UNITED STATES DISTRICT

6

APPROVED AND CONSENTED TO:
GILKEY & STEPHENSON, P.A.
Carol L. Dominguez 500 Marquette N.W., Suite 505 Albuquerque, NM 87102 (505) 242-4466 (505) 242-3145 (fax) Attorneys for Defendant

GWENDOLYN y. REAMS Acting Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

1801 L Street, N.W.

Washington, D.C. 20507
k~Q :%/)I1Q e1 N'¥/P>l.

MARY 10 O'NEILL

(

Regional Attorney
~~~Q~

Supervisory Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 3300 N. Central Ave. Suite 690 Phoenix, Arizona 85012
Lf7h~ )
VERONICA A. MOLINA Trial Attorney

LORETTA MEDINA Senior Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque District Office 505 Marquette N.W., Suite 900 Albuquerque, New Mexico 87102 Telephone: (505) 248-5231

Attorneys for Plaintiff

7

NOTICE TO ALL EMPLOYEES
It is unlawful under the federal law (Title VII of the Civil Rights Act) and state law to discriminate against an employee on the basis of sex in hiring, firing, compensation or other terms, and conditions or privileges of employment, including sexual harassment.
An employer shall not discriminate on the basis of sex and shall not retaliate against any employee who opposes a practice made unlawful under federal law, files, assists or participates in the filing of a charge of discrimination or participates in any investigation under Title VII, or who files a grievance alleging discrimination.
The term "sexual harassment" includes: A) any unwelcome sexual advance; B) requests for sexual favors; C) conduct that demeans or intimates an employee or group of employees because of their gender, including jokes, name calling, labels, or stories; and D) other verbal or physical conduct of a sexual nature if either:
(1) Submission to such conduct is made explicitly or implicitly a term or condition of employment-i.e., your employment depends on "going along" with harassing conduct, or "giving in" to sexual demands;
OR,
(2) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive work environment.
If you believe you have been discriminated against by an employer, you have the right to seek assistance from and file a charge of discrimination with the:
U.S. Equal Employment Opportunity Commission (EEOC), 505 Marquette, Suite 900, Albuquerque, New Mexico 87102, (505) 248-5201 or 1-800-669-4000; or
The New Mexico Department of Labor, Human Rights Division (NMHRD), 1596 Pacheco St., Suite 103, Santa Fe, New Mexico 87505, (505) 827-6838.
YOU HAVE THE RIGHT TO FILE A CHARGE WITH THE EEOC OR THE NMHRD IF YOU BELIEVE YOU ARE BEING DISCRIMINATED AGAINST.
Federal law requires that no action may be taken against you by an employer for (1) opposing discriminatory practices made unlawful by federal law; (2) filing a charge or assisting or participating in the filing of a charge of discrimination; or (3) assisting or participating in an investigation or proceeding brought under Title VII. Should any such retaliatory actions be taken against you, you should immediately contact the EEOC or the NMHRD listed above.
EXHIBIT A

 
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MTNDDL, TERMED, TRANSF
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:01-cv-00732-WJ-RLP

EEOC v. Sterling Brothers Assigned to: District Judge William P. Johnson Referred to: Magistrate Judge Richard L. Puglisi Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 06/26/2001 Date Terminated: 01/02/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

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

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

Loretta F Medina EEOC 505 Marquette, NW #900 Albuquerque, NM 87102 (505) 248-5230 Fax: 248-5217 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Padegimas EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-1848

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V. Defendant Sterling Brothers Construction, Inc.,
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(602) 640-5000 Fax: 640-5009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica A Molina Equal Employment Opportunity Commission Legal Unit 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 Fax: (505) 248-5217 Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara G. Stephenson 500 Marquette NW Ste. 505 PO Drawer 25566 Albuquerque, NM 87125 505-242-4466 Fax: 505-243-3145 Email: barbara@gilkeylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Dominguez Shay 500 Marquette NW Ste. 505 Albuquerque, NM 87125 505-242-4466 Fax: 505-243-3145 Email: carol@gilkeylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra J. Moulton Kennedy, Moulton & Wells PC 2201 San Pedro NE Building 2, Suite 105 Albuquerque, NM 87110 505-884-7887 Fax: 505-884-7123 Email: dmoulton@kmwpc.com TERMINATED: 01/30/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Date Filed 06/26/2001 06/26/2001 06/28/2001 06/29/2001
07/31/2001 08/13/2001
08/31/2001 09/05/2001 09/05/2001 09/06/2001
09/07/2001 11/07/2001 11/07/2001 11/07/2001 12/04/2001 12/14/2001 12/14/2001

#

Docket Text

1 COMPLAINT-civil rights, jury demand (1 Summons(es) issued) (referred to Magistrate Judge Richard L. Puglisi) (vv) (Entered: 06/26/2001)
LETTER to counsel re consent to proceed before a US Magistrate Judge (vv) (Entered: 06/26/2001)
2 NOTICE by pltf of refusal to consent to proceed before a US Magistrate Judge (vv) (Entered: 06/29/2001)
3 MINUTE ORDER: transferring case to the Santa Fe Division and reassigning case to District Judge Martha Vazquez (cc: all counsel*) (jrm) (Entered: 06/29/2001)
4 ANSWER by defendant [1-1] (vv) (Entered: 07/31/2001)
5 INITIAL SCHEDULING ORDER by Magistrate Judge Richard L. Puglisi Rule 16 scheduling conference set for 9/5/01 @ 10:00 am; provisional discovery plan and IPTR due 8/31/01 (cc: all counsel*) (jrm) (Entered: 08/13/2001)
6 ATTORNEYS' PROVISIONAL DISCOVERY PLAN (jrm) (Entered: 09/04/2001)
7 CLERK'S MINUTES: before Magistrate Judge Richard L. Puglisi Rule 16 scheduling conference HELD (jrm) (Entered: 09/05/2001)
8 CERTIFICATE of service of initial disclosures by defendant to counsel on 9/4/01 (jrm) (Entered: 09/05/2001)
9 ORDER by Magistrate Judge Richard L. Puglisi setting a settlement conference for 2/19/02 @ 9:00 am in Albuquerque (cc: all counsel*) (jrm) (Entered: 09/06/2001)
10 CERTIFICATE of service of initial disclosures by plaintiff to counsel on 9/6/01 (jrm) (Entered: 09/07/2001)
11 CERTIFICATE by plaintiff of 1st request for admissions to counsel on 11/06/01 (eg) (Entered: 11/07/2001)
12 CERTIFICATE by plaintiff of service of 1st request for production to counsel on 11/06/01 (eg) (Entered: 11/07/2001)
13 CERTIFICATE by plaintiff of service of 1st set of non-uniform interrogs to counsel on 11/06/01 (eg) (Entered: 11/07/2001)
14 CERTIFICATE of service of 1st set of interrog(s) and request for production by defendant to counsel on 12/4/01 (jrm) (Entered: 12/04/2001)
15 ENTRY OF APPEARANCE for deft by Barbara G. Stephenson and Carol L Dominguez (kd) (Entered: 12/17/2001)
16 MOTION by deft for order to initiate electronic filing (kd) (Entered: 12/17/2001)

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12/18/2001 12/20/2001 12/20/2001 12/20/2001
01/02/2002
01/07/2002 01/08/2002 01/09/2002
01/11/2002 01/14/2002
01/15/2002 01/15/2002
01/17/2002 01/18/2002 01/24/2002 01/30/2002 01/30/2002

17 UNOPPOSED MOTION by defendant to substitute attorney Gilkey & Stephenson (sl) (Entered: 12/19/2001)
18 ORDER by Magistrate Judge Richard L. Puglisi granting motion for order to initiate electronic filing [16-1] (cc: all counsel*) (jrm) (Entered: 12/20/2001)
19 CERTIFICATE of service of responses to 1st requests for admissions by defendant to counsel on 12/17/01 (jrm) (Entered: 12/21/2001)
20 CERTIFICATE of service of answers to 1st set of interrog(s) and responses to 1st request for production by defendant to counsel on 12/19/01 (jrm) (Entered: 12/21/2001)
21 MINUTE ORDER: transferring case to the Albuquerque Division and reassigning case from District Judge Martha Vazquez to District Judge William P. Johnson (cc: all counsel*) (jrm) (Entered: 01/02/2002)
22 UNOPPOSED MOTION by plaintiff to extend time to serve mtn to compel (no date specified) (jrm) (Entered: 01/07/2002)
23 CERTIFICATE by plaintiff of service of first supplemental initial disclosures to counsel on 01/04/02 (mlk) (Entered: 01/08/2002)
24 ORDER by Magistrate Judge Richard L. Puglisi granting pltf's unopposed motion to extend time until 1/14/02 to serve mtn to compel [22-1] (cc: all counsel) (jrm) (Entered: 01/09/2002)
28 CERTIFICATE by plaintiff of service of 2nd supplemental initial disclosures to counsel on 01/10/02 (mlk) (Entered: 01/15/2002)
25 ORDER by Magistrate Judge Richard L. Puglisi compelling production of documents and for sanctions as further described herein (cc: all counsel*) (jrm) (Entered: 01/14/2002)
26 MOTION by plaintiff to compel responses to 1st set of non-uniform interrog(s) and 1st request for production (jrm) (Entered: 01/15/2002)
27 MEMORANDUM by plaintiff in support of motion to compel responses to 1st set of non-uniform interrog(s) and 1st request for production [26-1] (jrm) (Entered: 01/15/2002)
29 CERTIFICATE of service of 1st supplemental Rule 26(a)(1) initial disclosures by defendant to counsel on 1/17/02 (jrm) (Entered: 01/17/2002)
30 CERTIFICATE of service of amended first supplemental Rule 26(a)(1) initial disclosures by defendant to counsel on 1/18/02 (jrm) (Entered: 01/22/2002)
31 CERTIFICATE by plaintiff of service of 3rd supplemental initial disclosures to counsel on 01/18/02 (mlk) (Entered: 01/28/2002)
32 MOTION by defendant to compel production of documents (jrm) (Entered: 01/30/2002)
33 MEMORANDUM by defendant in support of motion to compel production of documents [32-1] (jrm) (Entered: 01/30/2002)

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01/30/2002
01/30/2002 01/30/2002 01/31/2002 02/04/2002 02/04/2002 02/08/2002 02/13/2002 02/14/2002 02/14/2002 02/19/2002 02/20/2002 02/25/2002 02/26/2002 02/28/2002 03/01/2002

34 ORDER by District Judge William P. Johnson granting unopposed mtn to withdraw and for substitution of counsel withdrawing attorney firm of Kennedy, Moulton & Wells for Sterling Brothers (cc: all counsel) (jrm) (Entered: 01/30/2002)
35 JOINT MOTION for a limited extension of the discovery deadline until 2/15/02 (jrm) (Entered: 01/30/2002)
36 ORDER by Magistrate Judge Richard L. Puglisi granting the joint motion for a limited extension of the discovery deadline until 2/15/02 [35-1] Discovery cutoff 2/15/02 (cc: all counsel) (jrm) (Entered: 01/30/2002)
37 RESPONSE by defendant to motion to compel responses to 1st set of non-uniform interrog(s) and 1st request for production [26-1] (jrm) (Entered: 02/01/2002)
38 MOTION by defendant for order to conduct a Rule 35 independent psychological examination of charging party (jrm) (Entered: 02/05/2002)
39 MEMORANDUM by defendant in support of motion for order to conduct a Rule 35 independent psychological examination of charging party [38-1] (jrm) (Entered: 02/05/2002)
40 CERTIFICATE of service of objections and responses to 1st set of interrog(s) and request for production by plaintiff to counsel on 2/7/02 (jrm) (Entered: 02/08/2002)
41 RESPONSE by plaintiff to motion to compel production of documents [32-1] (jrm) (Entered: 02/13/2002)
42 REPLY by plaintiff to response to motion to compel responses to 1st set of non-uniform interrog(s) and 1st request for production [26-1] (jrm) (Entered: 02/15/2002)
43 NOTICE of completion by plaintiff of mtn to compel (jrm) (Entered: 02/15/2002)
SETTLEMENT CONFERENCE held before Magistrate Judge Puglisi; case did not settle (pr) (Entered: 02/20/2002)
44 RESPONSE by pltf in opposition to deft's motion for order to conduct a Rule 35 independent psychological examination of charging party [38-1] (bap) Modified on 02/28/2002 (Entered: 02/21/2002)
45 ORDER by Magistrate Judge Richard L. Puglisi granting deft's motion to compel production of documents [32-1] (cc: all counsel*) (jrm) (Entered: 02/25/2002)
46 ORDER by Magistrate Judge Richard L. Puglisi granting/denying in part pltf's motion to compel responses to 1st set of non-uniform interrog(s) and 1st request for production [26-1] (cc: all counsel*) (jrm) (Entered: 02/26/2002)
47 MOTION by plaintiff to stay Magistrate's Order of 2/25/02 (jrm) (Entered: 02/28/2002)
48 RESPONSE by defendant to motion to stay Magistrate's Order of 2/25/02 [47-1] (jrm) (Entered: 03/01/2002)

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03/04/2002 03/05/2002 03/05/2002 03/06/2002 03/07/2002 03/07/2002 03/08/2002 03/08/2002
03/08/2002
03/08/2002
03/14/2002
03/19/2002 03/19/2002 03/21/2002 03/25/2002

49 ORDER by District Judge William P. Johnson denying motion to stay Magistrate's Order of 2/25/02 [47-1] by EEOC (cc: all counsel*) (jrm) (Entered: 03/04/2002)
51 REPLY brief by defendant to response to motion for order to conduct a Rule 35 independent psychological examination of charging party [38-1] (jrm) (Entered: 03/06/2002)
50 NOTICE by deft of mtn packet completion re to conduct Rule 35 independent psycholocial examination of charging party [38-1] (pr) (Entered: 03/06/2002)
52 CERTIFICATE of service of 1st supplemental responses to 1st interrog(s) and 1st request for production by defendant to counsel on 3/06/02 (jrm) (Entered: 03/06/2002)
53 MOTION by plaintiff for order re: objections to Magistrate's Order granting deft's mtn to compel (jrm) (Entered: 03/08/2002)
54 MEMORANDUM by plaintiff in support of motion for order re: objections to Magistrate's Order granting deft's mtn to compel [53-1] (jrm) (Entered: 03/08/2002)
55 RESPONSE by defendant to motion for order re: objections to Magistrate's Order granting deft's mtn to compel [53-1] (jrm) (Entered: 03/13/2002)
56 MOTION by plaintiff for order re: objections to Magistrate Order granting/denying in part pltfs' mtn to compel responses to pltfs 1st set of non-uniform interrog(s) and 1st requests for production (jrm) (Entered: 03/26/2002)
57 MEMORANDUM by plaintiff in support of motion for order re: objections to Magistrate Order granting/denying in part pltfs' mtn to compel responses to pltfs 1st set of non-uniform interrog(s) and 1st requests for production [56-1] (jrm) (Entered: 03/26/2002)
58 RESPONSE by defendant to motion for order re: objections to Magistrate Order granting/denying in part pltfs' mtn to compel responses to pltfs 1st set of non-uniform interrog(s) and 1st requests for production [56-1] (jrm) (Entered: 03/26/2002)
59 ORDER by Magistrate Judge Richard L. Puglisi granting defts' motion for order to conduct a Rule 35 independent psychological examination of charging party and as further described herein [38-1] (cc: all counsel*) (jrm) (Entered: 03/14/2002)
60 MOTION by defendant for summary judgment (jrm) (Entered: 03/20/2002)
61 MEMORANDUM of law by defendant in support of motion for summary judgment [60-1] (jrm) (Entered: 03/20/2002)
62 REPLY by plaintiff to response to motion for order re: objections to Magistrate's Order granting deft's mtn to compel [53-1] (jrm) (Entered: 03/22/2002)
63 NOTICE of hearing before District Judge William P Johnson Jury selection/trial set for 12/9/02 @ 9:00 am (cc: all counsel*) (jrm) (Entered: 03/26/2002)

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03/26/2002
03/26/2002 03/27/2002 03/28/2002 04/02/2002 04/02/2002 04/04/2002
04/05/2002 04/11/2002 04/15/2002
04/16/2002 04/18/2002 04/22/2002 04/22/2002

64 REPLY by plaintiff to response to motion for order re: objections to Magistrate Order granting/denying in part pltfs' mtn to compel responses to pltfs 1st set of non-uniform interrog(s) and 1st requests for production [56-1] (jrm) (Entered: 03/26/2002)
65 INITIAL PRE-TRIAL REPORT by District Judge William P. Johnson and Magistrate Judge Richard L. Puglisi ; Discovery set for 2/4/02 ; mtn filing ddl set for 4/22/02 ; proposed pretrial order due 5/9/02 ; pretrial conference set for 9:30 am on 10/29/92 ; jury trial set for 9:00 am on 12/9/02 ; Estimated # of Trial Days: 2-3; Chances of Settlement: UNKNOWN (cc: all counsel) (jrm) (Entered: 03/26/2002)
66 NOTICE by plaintiff of completion of briefing on objections to Magistrate's Order granting deft's mtn to compel (jrm) (Entered: 03/26/2002)
67 NOTICE by plaintiff of completion of briefing of objections to Magistrate's Order granting/denying in part pltf's mtn to compel (jrm) (Entered: 03/27/2002)
68 UNOPPOSED MOTION by plaintiff to extend time until 4/5/02 in which to file response to mtn for sum/jgm (jrm) (Entered: 03/28/2002)
69 MOTION by plaintiff to exceed page limitation for response to mtn for sum/jgm (jrm) (Entered: 04/02/2002)
70 ORDER by Magistrate Judge Richard L. Puglisi granting pltf's unopposed motion to extend time until 4/5/02 in which to file to mtn for sum/jgm [68-1] (cc: all counsel) (jrm) (Entered: 04/02/2002)
71 ORDER by Magistrate Judge Richard L. Puglisi granting pltf's unopposed motion to exceed page limitation for response to mtn for sum/jgm [69-1]; response to be 29 pages, not including signature pages and certificate of service (cc: all counsel) (jrm) (Entered: 04/04/2002)
72 RESPONSE in opposition by plaintiff to motion for summary judgment [60-1] (jrm) (Entered: 04/08/2002)
73 NOTICE OF ERRATA by plaintiff to response in opposition to mtn for sum/jgm [60-1] (jrm) (Entered: 04/11/2002)
74 NOTICE of hearing before District Judge William P Johnson on pltf's mtns for order re: objections to Magistrate Order re: mtns to compel [56-1], [53-1] on 5/10/02 @ 8:30 am in Albuquerque (cc: all counsel*) (jrm) Modified on 04/22/2002 (Entered: 04/16/2002)
75 UNOPPOSED MOTION by defendant to extend time until 4/22/02 in which to file its reply brief in support of mtn for sum/jgm (jrm) (Entered: 04/16/2002)
76 ORDER by Magistrate Judge Richard L. Puglisi granting deft's unopposed motion to extend time until 4/22/02 in which to file its reply brief in support of mtn for sum/jgm [75-1] (cc: all counsel) (jrm) (Entered: 04/18/2002)
77 REPLY brief by defendant to response to motion for summary judgment [60-1] (jrm) (Entered: 04/22/2002)
78 NOTICE by defendant of completion regarding its mtn for sum/jgm (jrm) (Entered: 04/22/2002)

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05/14/2002
05/14/2002 05/21/2002
05/21/2002 07/29/2002 08/05/2002
08/12/2002
10/25/2002
11/12/2002
11/19/2002 11/19/2002 11/19/2002 11/19/2002 11/22/2002 11/22/2002 11/25/2002

79 NOTICE of hearing before Judge William Johnson on motions [56-1] [53-1] at 9:30 am on 5/14/02 in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 05/09/2002)
80 ORDER by District Judge William P. Johnson overruling pltf's motion for order re: objections to Magistrate's Order granting deft's mtn to compel [53-1]; the Order granting deft's mtn to compel shall remain in full force and effect and pltf shall produce those items ordered to be produced by Judge Puglisi [45-1] (cc: all counsel*) (jrm) (Entered: 05/14/2002)
81 CLERK'S MINUTES: before District Judge William P. Johnson mtns hrg held [56-1]; [53-1]; C/R: T.Garrett (jrm) (Entered: 05/15/2002)
82 ORDER by District Judge William P. Johnson granting in part and overruling in part pltf's objection to Magistrate's Order denying pltf's mtn to compel as further described herein [56-1] (cc: all counsel) (jrm) (Entered: 05/21/2002)
83 PRE-TRIAL ORDER by District Judge William P. Johnson : (cc: all counsel) (jrm) (Entered: 05/21/2002)
84 AMENDED RESPONSE w/corrections in the ntc of errata in opposition by plaintiff to motion for summary judgment [60-1] (jrm) (Entered: 07/30/2002)
85 CERTIFICATE by plaintiff of service of amended response with corrections in notice of errata in opposition to motion for summary judgment to counsel on 7/29/02 (ed) (Entered: 08/06/2002)
86 MEMORANDUM, OPINION, AND ORDER: by District Judge William P. Johnson granting/denying in part deft's motion for summary judgment as described herein [60-1] (cc: all counsel*) (jrm) (Entered: 08/12/2002)
87 MINUTE ORDER: by direction of the Honorable William P Johnson vacating & resetting Pretrial conference Pretrial conference reset for 11/22/02 @ 9:30 am in Albuquerque (cc: all counsel*) (jrm) (Entered: 10/25/2002)
88 NOTICE of hearing before District Judge William P Johnson Jury selection & trial set for 12/9/02 @ 9:00 am in Albuquerque (cc: all counsel*) (jrm) (Entered: 11/13/2002)
91 PROPOSED EXHIBIT list by plaintiff (jrm) (Entered: 11/19/2002)
92 WITNESS list submitted by plaintiff (jrm) (Entered: 11/19/2002)
89 PROPOSED EXHIBIT list by defendant * (jrm) (Entered: 11/20/2002)
90 WITNESS list submitted by defendant * (jrm) (Entered: 11/20/2002)
93 ORDER by Magistrate Judge Lorenzo F. Garcia setting Rule 16 settlement conference for 11/26/02 at 10:00 am (cc: all counsel*) (vv) (Entered: 11/25/2002)
94 CLERK'S MINUTES: before District Judge William P. Johnson Pretrial conference held C/R: T Garrett (dmw) (Entered: 11/25/2002)
95 MOTION by pltf in limine to exclude testimony or documentary evidence re contentions that it had a sexual harassment policy & charging party never complained (dmw) (Entered: 11/26/2002)

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96 MEMORANDUM by pltf in support of motion in limine to exclude testimony or documentary evidence re contentions that it had a sexual harassment policy & charging party never complained [95-1] (dmw) (Entered: 11/26/2002)
98 (ORDER) CONSENT DECREE by District Judge William P. Johnson as described herein dismissing case (cc: all counsel) (jrm) (Entered: 01/02/2003)

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.
STERLING BROTHERS CONSTRUCTION, INC.,
Defendant.

CIVIL NO. 01-732 MV/RLP

ORDER COMPELLING PRODUCTION OF DOCUMENTS AND FOR SANCTIONS THIS MATTER having come before the court on Defendant’s Motion to Compel Production of Documents and for Sanctions (motion not filed with the court), the court having reviewed the letter of January 11, 2002 outlining the difficulties in producing documents at the deposition of Deena Kleinegger on January 10, 2002. The court having held a telephonic conference regarding said difficulties, finds that Defendant’s motion is well taken and will be granted. On January 10, 2002 the deposition of Deena Kleinegger was held pursuant to a Notice to Take Deposition Duces Tecum. The notice required that the deponent bring with her “. . . all documents in your possession which relate to your claims in this matter.” The deponent complied with this request and produced documents. However, counsel for Ms. Kleinegger, belatedly asserted an attorney/client privilege to a number of the documents. This belated objection delayed the deposition and resulted in the telephonic hearing on

Monday, January 14, 2002. IT IS THEREFORE ORDERED that Plaintiff immediately produce the documents
that were placed under seal subject to any attorney/client privilege objection. These documents will be produced no later than January 15, 2002. Contemporaneous with the production of these documents, Plaintiff shall produce a privilege log for any documents withheld pursuant to the assertion of a privilege. Further, the deposition of the charging party, Deena Kleinegger, shall be rescheduled as soon as possible.
IT IS FURTHER ORDERED that Plaintiff shall be responsible for any additional costs related to the retaking of the deposition of Deena Kleinegger. This cost does not include attorney’s fees, but includes any additional appearance fee or other additional cost incurred by the defendant as a result of having to retake the deposition of Ms. Kleinegger.
IT IS SO ORDERED.
RICHARD L. PUGLISI United States Magistrate Judge
2