I

2

ORIGINAL

3

4

~FtLED ~ENTERED

5

LODGED__~RECEIVE.D

6

7

8

UNITED STATES DISTRICT COURT

FOR TIIE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

]0 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
12
13
UNION PACIFIC RAILROAD COMPANY°

C 0 4.86
CIVIL ACTION NO. COMPLA]2XTT JURY" TRIAL DEMAND

Defendant, I6

17

18

NATURE OF THE ACTION

This is ~ua action under Title VII oft.he Civil Rights Act of 1964 and Title I of the Civil

20 Rights Act of 1997 to correct unlawful employment practices on thv basis of sex und to provide 21 appropriate relief to Jill Harp, who w~ advvrzely affcctvd by such practices. The Equal

22 Employment Opportunily Commission (the "Commission") alleges that defeodant, Union Pacific

23 Railroad Company, subjected Ms, Harp to a sexually hostile work envirocmcnt. The Commission

2~ seeks monetary and qnjtu~ctive relief, including pecuniary ~d nonpecuniary compensatory damages

25 anti punitive damages, on behalf of Ms. Harp,

26 // 27 /I

I IIIIII |!111 IIIII IIII III!1 IIIii IIIII IIII IIII

11111111 III 111811 IIIIii IIIII II t81

04~(:~-II08b6-CMI~

EQUAL EMPLOYMENT OPI~OR’I1JNITY COMMISSION ~attle District

F~I Offi~ Building

COMPLAINr- PAGE 1

Tel~h~e (2~) FaX (2~) ~6at

1

JURISDICTION AND VENUE

2

1, Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343

3 and 1345. This actiot~ is authorized and instituted pursuant to Sections 706(0(1 ) and (3) of Title VII

4 of the Civil Rights Act of 1966, as mltended, 42 U.S.C. §§ 2000e-5(t)(1) and (3) ("Title VII"), and

Section 102 of the Civil Pdghts Act of 1991, 62 U.S.C. §1981a.

6

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

7 jurisdiction of the United States District Court for the Western District ol’Washington.

PARTIES

3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the

United Stat~s of America charged with *.he ~lministration, interpretation and enforcement of Title

11 VII, and is expressly authorized ~o brh3g this action by Section 706(0(I) of Title VII, 42 U.S.C. 12 §2000e-5(t3(l).

13

4. At all relevant times, defendant Union Pacific Railroad Company, has continuously

14 been a corporation doing business in the State of Washington and has continuously had at Ioast 15

15 employees.

16

5, At all relevant times, defendant Union Paci tic Railroad Company, incorporated h~.

17 Dclcware, has continuously b~en an ~mployer engaged in art industry affecting commerce within th

18 meard.ng of Sections 701(b), (g) and (h) of Title VII, 42 U.S,C, §§2000e-(b), (g) arid

19

STATEMENT OF CLAIMS

20

6. More than thirty days prior to the iltstitufion of this lawsuit, Jill Harp filcd a charge o

21 discrimination with the Equal Employment Opportunity Commission alleging violations of Title

22 by defendant, Union Pacific Railroad Company. All eonditlons precedent to the it~stit~ttion of this

23 lawstfit have been fulfilled.

24

7. Beg~uning approximately June 10, 2002, defendant engaged in unlawful employment

practices at its Seattle, Washinglon Facility, in violation of §§ 703(a) of Title VII, 42 U.S.C. §§

26 2000e-2(a). Defendant afl~eted the terms and conditions of Jill Harp’s employment by subjecting

27 her to ongoing sexua/harassment including lewd comments, inappropriate touching, pornography,

COM PLAINT - PAGE 2

EQUAL ~MPL~YMENT OPPORTUNITY CO~IMI~d~JO, N Se.a~le District Office
,~=~ltle, Washington g81O4-1r~l

1 and sexu~d graffiti because of her sex_

2

8. The effect of the practices complained o f in paragraph 7 above has been to deprive

Jill Harp of equal employment opportunities and otherwise adversely ~ffect her status as an

employee.

9. The unlawful employment practices complained of in paragraph 7 above were

6 intentional.

7

10. The unlawful employment practices complained of in paragraph 7 above were done

8 with malice or with reckless indi ff~n’encc to the federally protected rights of Jill Harp.

9

PRAYER .F.QR RELIEF

10

Wherefore, the Commission rcspcctfully requests that this Court:

11

A. Grant a permanent ~.njunelion enjoining defendant, its officers, successors, agents,

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

13 employment practices which discriminate on the basis of sex.

14

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

provide equal employment opporttmitics for all employees, and which er~ie~te the effects of its pa

16 and present m~lawful employment practices.

17

C. Order defendant to make whole ,lill Harp by providing appropriate back pay with

18 prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to

19 eradicate the effects of its unlawful employment practices.

20

D. Order defendnn! to make whole Jill Harp hy providing compensation for past and

21 future pecuniary losses resulting from the unlawful employm.em practices described in paragraph 7

22 above, including past and future out-ot’-pocket expenses, in amounts to be dezermincd at trial.

23

E. Order defendant ~o make whole Jill Harp by providing compensation for past and

24 future nonpecuniary losses resulting from fl~¢ un/~wful practi~es complained of in p**ragrapb 7

25 above, including without limitation emotional pain, suffering, and loss of enjoyment of life, in

26 amounts to be determined at trial.

27

F, Order defendant to pay Jill Harp punitive danxages for its malicious and reckless

EQUAL EMPLOYMENT OPPORTUNITY COMM~$1ON 5cattle Dlstrl©t

COMPLAINT- PAGE 3

1 conduct described in paragraph 7 abow, in amounts to be detet~mincd at trial, Grant such further relief as the Court deems necessary and pmpcr in the public
interest. H. Award the Commission its costs oflhis action,

JURY TRIAL DEMAND 6
The Commission requests a jury trial on all questions of fact raised by its complaint.
7

8

9

DATED lifts L~.~ day of ~

,2004.

10

11 A. LUIS LUCER.O, JR.
Rcgional Attorney I2
J OI-I-N STANLEY
13 Acting Supervisory Trial Attorncy

EKIC S. DREIBAND
General Counsel
Office of the General Co~msel 1801 "L" Street NW
Washington, D,C, 20507

14 LISA COX

Trial Attorney .

15

0

16 EQUAL EMlgLO~MEb~r

~ ’

OPPORTUNITY COMMISSION

17

Seattle District Office

909 First Avenue, Suite 400 Seattle, Washington 98104

19 Telephone (206) 220-6890

lisa.eo~;@eeoc.gov

20

21

Attorney~ for Plaintiff

22 23

24

25

26

27

COMPLAINT - PAGE 4

EQUAL EMPLOYMENT OPPOR’ilJ’NITY GOMMI$510N S#~tl~ Disbict Off’me
Seattle, W~shi~,’~lon 90104-1061
"1’~ 1~5) 220-~2

 
 I IIIIII IIiil Illll IIIII IIIII I!111 Illll iiii IIII I lllf!li III lilllli illlii iilli II
04-( ,V-00866-CMP 1
2

4

6

7

THE HONORABLE MARSH A J. PECHMAN

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

10 EQUAL EMPLOY.MENT

CASE NO,: C04-866 MJP

OPPORTUNITY COMMISSION, 11

INTERVENOR’S COMlrLAINT FOR

12
V,
13

Plaintiff,

DAMAGES SEX DISCRIMINATION AND

UNION PACIFIC RAILROAD 14 COMPANY,

SEXUAL HARASSMENT IN VIOLATION OF TITLE VII OF THE

15

CIVIL RIGHTS ACT OF 1964, G2

DefendantT

U.S.C. § 2000(e) ET SE_.~.

16

17 JILL HARP, Plaintiff in [mervcntion,
18

SEX DISCRIMINATION AMD SEXUAL HARASSMENT IN VIOLATION OF RCW 49.60

19 UNION FACIFIC RAILROAD

RETALIATION IN VIOLATION OF

20 COMPANY; R.A~ L TERMINAL SERV ICES; ,FLETCHER JAMISON,

= TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. § 2000(e) E___T

21 individually and the marital communLty SEO..

thereof with JANE DOE JAMISON; 22 ALAN MOENCH, individually and the 23 marital community thereof with JANE
DOE MOENCH; MARTIN HOWELL,

RETALIATION IN VIOLATION OF RCW 49.60

24 irtdivid~ally and the marital community NEGLIGENT SUPERVISION

thereof with JANE DOE HOWELL, and 25 DOES 1-10 inclusive,

AND/OR RETENTION

26

6, MALICIOUS HARASSMENT

Defendants in Intervention,

27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) - ~

K:\6000 FILES\6200 Jill I-f~rp v, Union Pacific

RR\ Complaint.doc

1

ASSAULT AND BATTERY

2 8. TORT OF OUTRAGE
3 DEMAND FOR JURY TRIAL
4

COMES NOW, Plaintiff in Intervention, JILL HARP, by and through her attorney 6
7 of record, and alleges the following:

8

I. NATURE OF THl~ CAS..E.

9

1. This case involves sex discrimination, sexual harassment, and retaliation by

10 Defendants, UNION I~ACIFIC RAILROAD COMPANY (herein~ter "UPRR"), and
11
12 RAIL TERMINAL SERVICES (hereinM-~er "RTS") and flaeir agent~. [~lain~ff in

13 Intervention (hereinafter "Plaintiff") alIegcs UPRR and RTS engage in a pattern and

14 practice of overt sex discrimination and of ignoring and even condoning sexuaI
15 harassment. 16
2. The nature of Plaintiff’s employment requires that she work with both 17 18 employees of UPRR and t_hose of RTS. RTS is a company that sl-mres employment

19 location and I~fldings with UPRR. UPRR and RTS employees use the same break room

2O as well. Plaintiff must interact with RTS employees and sul0e~’visors on a daffy basis
21 and is required to report to RTS supervisors if she will be ab~nt from work.

Additionally, RTS assigns lY/ainti~f her specific job duties for each work shift.

3. Plaintiff contends tl’tat she was gravely mistreated by male co-workers and

managers. Plaint4fff was (1) crudely and repeatedly touched and fondled irt a sexual

26 manner, (2) repeatedly subjected to vulgar and degrading comments, (3) repeatedly

27 INTERVENOR’S COMPLAINT FOR

,~,o The l.a~ D~me

DAMAGES (CO4-886MJP) - 2

K:\60O0 FILES\6200 Jill 1 larp v. Union Pacific

RR\Complaint.doc

1 sobjected to vulgar pornographic materials, (4) repeate.dly subjected to sexually 2 suggestive commen~s and acts, and (5) repeatedly subjected to the exposure of male

gerfitalia. 4
4_ Plaintiff as~erta claims .under federal and state ant-i-discrimination and civil

6 rights laws. Plaintiff seeks legai redress for injuries Lruflicted upon her by ~e Defertdo.nts

7 UPRR, its managerial employees, and DOES 1-10.
8 5. Plaintiff believes that as a result of the egregious and repetitive
9
10 discriminatory acts, a sizeable punitive damage award may be required to punish

11 individual Defendants for past discrimination m~d deter such behavior in the future.

12

II. |URISDICTION AND VENUE

13 6. Jurisdiction Ls proper pursuant to 28 U.S.C. § 1331 based upon a federal
14
15 question under the laws of the United States~ Specifically, this Court has j~arisd~ction

16 over Plaintiff’s claims under Title VII of the Civil Rights Act of 1964, as amended in

17 1991, 42 U.S.C. § 2000e et

18 7. Supplemental jurisdiction exists pursuant to 28 U.S.C~ § 1367(a) for state
19 statutory claims under RCW § 49.60.010 et seq~ and other torts.
20

21

8. Venue is proper under 28 U.S.C. § 1391 (b)(1) and (2); and 42 U.S.C. § 2000e-

22

23
//
24
//
25
26 //

27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) - 3
K:\6000 FILES\6200 Jill Harp v. Unkm P~¢ific
RR\Compl~int,doc

The Law VA~t~ of GRANT& The La~
T~ma, Wa~{n~m~

1

III. STATUTORY PREREQUISITES

2 9. Plaintiff in Intervention has an ~bsolu.te right, under 42 USC §2000e-5(f)(1), to
3 intervene in this action brought by the Equal Employment Opportunity Commission
4
(hereinafter "EEOC").

6

:10. On or about Auf~nast 5, 2003, Plaintiff filed an EEOC Charge based on sex

7 discrimination against Defendant UPRR, EEOC Charge No. 380-200502600.
8 :11. On February 27, 2003, the EEOC issued a reasonable cause determination in

the Charge of DLscrimination Number 380-2003-02600. The EEOC found flaat UPRR

11 violated Title VII by subjecting Plaintiff to a hostile work environment, which consisted

12 of a highly ae×ualized, offensive work environment that Defendant UPRR failed to

13 correct even after PIaintiff complained about the hostile work environment.
14

15

12. Since filing her EEOC Charge on Aubn~st 5, 2003, Defendant UPRR retaliated

16 against Plaintiff. Consequently, Plaintiff filed another EEOC charge based on

17 retaliation, EEOC Charge No. 380-2004-02182. The EEOC Issued a Notice of Right to 18
Sue for Plaintiff’s Retaliation Charge on April 28, 2004.

2O 21 A.

Plaintiff

IV. PARTIES

22

13. At all times material hereto, Plaintiff has been a citizen of the United States

23 and a resident of ~he State of Washington and has been entitled to protection under
24
Title VII of the Civil Rights Act of 1964, as amended in 1991, 42 U.S.C. § 2000e et seg., 42 25
26 U.S.C. § 13981, RCW chapter 49.60, and the common law of the State of Washington.

27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) -4 K:\6000 FILES\620fl Jill Harp v, Union Pacific
RR\Complaint.doc

1 B, 2

Named Defendant Corporations 14. Defendant UPRR and DOES 1-5 have at all relevant times been an

employer as defined by 42 U,S,C, § 2000e(b), in that they have employed fifteen (15) or 4
5 more persons in each of twenty (20) or more calendar weeks in the current or

6 preceding year.

7

15. Defendants UPRR and DOES 1-5 are employers under R.C.W. 49.60,040, in

8 that they employs eight (8) or more persons,

10

~16. Defendant RTS is a Delaware Corporation which conducts business in the

11 State o5 Washington.

12 C, Named Individual Defendants
13 17. It is believed and is herein alleged ~hat Defendant FLETCHER ]AMISON
14 15 (herein "Defendant JAMISON") is and has been a citizen of the United States and a
16 resident of the State of Washington at all times material hereto.

17

18. Defendant JAMISON at all ~imes material herein acted as an agent for

18 Defendant UPRR in that he is a manager o~ De~endant UPRR. Defendant JAMISON
19

was at all relevant times a managerial agent of Defendant UPRR. 20

21

19. On information and beIief, Defendants JAMISON and JANE DOE

22 JAMISON reside in the State of Washington, which is within this iudicial district,

20. Defendant JAMISON is married to J AN E DOE JAMISON and all acts done 24
25 by him were done on behalf of or in furtherance of the interests of the marital

26 corn.infinity.

27 INTERVENOR’S COMPLAINT FOR
DAMAGES (CC~886MJP) - ~
K:\6000 I:YI_ES\6200 Jill Harp v, Union Pacific RR\Complaint.do¢

,~,~, t~,, o~fl:t~ ofCRAhTT &
v.~o=~.~S~o.,,4~7,t~5o ~
’~,i~pho~

1

21. It is believed and is herein alleged that Defendant ALAN MOENCH

2 (herein "Defendant MOENCbI") is and has been a citizen of fl~e United States and a

resider~t of the State of" Washingtor~ at all times material hereto. 4
22. Defender MOENCH at all times mat~iaI herein acted as an agent for

6 i~ that he is an employee of RTS.

7 ~. On i~ormafion ~d belief, Defendan~ MOENCH and JANE DOE
8 MOEN~ reside in the State of Was~gton, which is wit~n this judicial dist~ct.
9

10

24. Defendant MOENCH is married to JANE DOE MOENCH and ~1 acts done

11 by him were done on ~hal.f of or ~ furtherance of the ~terests of the mari~I
12 co--unity. 13
25. It is believed a~d is herein alIeged t~t Defendant MAR~N HOWELL 14
(herein "D~endant HOW~L") is and has been a citizen of the U~ted States and a

16 resident o~ the State of Wash~gton at all ~mes materi~ hereto.

17

26. Defendant HOWELL at ~1 t~es material herein acted as an agent for

18

Defend~t ~RR in that he is an employee of Defendant UPS. 19

27. ~ information and ~lief, Defenders HOWELL and JANE DOE

21 HOWELL reside in the State of Washington, which is within this judicial district.

~ Defendant HO~LL is ma~ied ~ JANE DOE HOWELL a~d all acts done

24 by him were done on ~lf of or in funher~ce of the interests of ~e ~ital 2~ communi~.

26 //
27 I~ERVENOR’S COMPLAINT FOR
28 DAMAGES (C~486MJP) - 6 K:~6~00 HL~X6200 Jffi Harp v, ~nion P~cif~ RR~ Comp~int,do¢

v~e~’ ~)~a)’~

1 D. Doe Defendants

2

29. The true names and capacities, whether individual, corporate, associate,

3
governmental or o~herwise, of Defendants sued herein as DOES 1-5, inclusive, are 4

5 currently unknown to Plaintiff, who therefore sue said Defendants by such fictitious

6 n~rnes.

7

30. The true names and ¢apadties of individual Defendants sued herein as

8 DOES 6q0, h~clusive are currently unknown to Plaintiff, who therefore sue said
9

10 Defendants by such fictitious names.

11

31. Plaintiff is informed and believes, and based thereon alleges, that each of

12 the Defendants designated as a DOES 1-10 are legally responsible in some manner for
13 the events, incidents, and happeninb-s described herein, and. caused injuries and
14 15 damages to PIaintifL Plaintiff will seek leave of court to amend this Complaint to
16 substitute the true names and capacities for the Defendants designated herein as DOES

17 1-10 when the true names have been ascertained or in the alternative dismiss said

18 DOES 1-10 if their identities cannot be ascertained. 19
32. Plaintiff is informed and believes, and based thereon alleges, that at all 2O
21 times mentioned herein, Defendants DOES 1-10 allowed, aided, encouraged and

22 incited others, including agents and employees of Defendant UPRR to engage in the 23 acts o~ d~crimination and retaliation alleged herein. 24

26
27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-S86MJP) - 7
K:\60O0 FILES\ 5200~’ill H~p v. Union Pacific RR\Complain t.doc

Ta~am~, M,’ash~nKt~n ’9~O~’

1

33. Plaintiff L~ informed and believes, and based thereon alleges that at all

2 relevant ~imes the individual DOE Defendants viz, Does 6-10, arc and have ~en
3 residents ~f the UnReal States and the State of W~sh~ton.
4

5

~. Defendants UPRR, JAMI~N, and DO~ 1~10 are he~einMtev collectively

6 referred to as "DE~NDAN~." U~ess specified o~herwise, whenever this Complaint

7 refers to "De~endant" or "Defendants/’ such aHegafio~ shall be deemed to me~ the
8 acts of De[endants acting individually, jo~tly and/or severally as so desi~ed.
9

10

35. Plaintiff is i~o~ed ~d befieves, and based thereon ~leges, ~at at all

11 times mentioned herein, each of the Defendan~ were &e agent, se~an~ and

12 ~employ~s, co-ven~rers ~r c~o~pivators o~ each of ~e remai~ng Defendants, and
13 were act~g within the course, scope, m~d purpose of their employmem, joint venture
14
15 or co,piracy, ~ ~he consent, knowledge, ratification and authorization of such

16 agency, employment, joint venture or co,piracy.

17

V. GENERAL ALLEGATIONS

I8

Plaintff~ alleges ~he following:

19

36. On or about June 10, 2002, Plaintiff beg~ working for Defendant ~RR as 2O

21 a Tie Down ~ader. Her i~ediate supervisor at ~t time was Defendant JAMJ~N,

22 Inte~odal M~ger.

23 37..Haint~f first complained about ~he hostile work environment in or about
24 Septem~r 2002 to M~ger of Intermodel Opperafions, Art Kiel~. She complained
25
26 about the offensive lan~age used by other ma~e employees.

27 IN~R~NOR’5 CO~LAINT FOR
28 D~AG~ (CO4-886~P) -8
K:~6~0 F~ES~f20fl Jill Harp v. U~on P~cific RR~Comp]~i~L ~oc

~ ~ ~ .... ¢~T ~ ~,~ "r~.,~ ~,,,,,~,o~ ~
v~.~o~ (a~)~

1

38. Plaintiff was also subjected to unwanted touching by other male RTS

2 employee, Defendant MOENCH. He would hug Plair~tiff, rub her legs or arms, and
3 g~abs her. Plaintiff objected to the etsnregioL~s behavior and immediately compIained to
4
5 Art Kielty, Defendant JAMISON, and Defendant RTS Supervisors, Donny Ross, and

6 Jeremy Ross. Plaintiff alleges Defendants UPRR, RTS, JAMISON and DOES 1-10 ~afled

7 to take prompt corrective action.

.39. Defendant RTS Supervisors Jeremy Ross and Donny Ross made jokes about 9 10 Plaintiff’s complaints about Defendant MOENCH and when Plaintiff complained
11 about RTS employees garbage unloading procedures, Defendant RTS Supervisors told
12 Ptaintiff that she had better stop complaining or they would "get Alan [Defendant 13
MOENCH] to grope" Plaintiff again.

15

40. Plaintiff continued to work in a hostile work environment. She found

16 pornographic materials at the workpIace. Male employees constantly t~sed sex-based

17 profanity. Offensive graffiti was plastered all over the workplace. She was subjected

18 to offensive comments from male employees, includbinugt not lirnited to the
19 following:
2O

21

¯ "I am going to go home and let my dog lick my nuts.";

22

* "I have a huge penis." ;

23 "’Do you want Lo touch my bald mouse?";
24

25

¯ "Look how huge my monster is.";

26

¯ "Are you on your period? Can I sniff your seat?" ;

27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) - 9
K:\6000 FILES\6200 Jill Harp v. Urdon P~cific
RR\Complairtt.doc

1

"Was Jill [Harp] driving that truck? Can I sniff the seat?";

2 "I am fucking his [Art Kielty’s] wife and her hole is tighter than his sisters";

4

41. Plaintiff was also referred to as a "Bitch", "Whore", and "Cunt", on

5 multiple occasions.Plaintiff was offended by tahe egregious sex-baxed comments and

6 behavior.
7 42. De~endant HOWELL also participated in the sexual bantetrn. or about
8
9 September 2003, Defendant ]?-lOWELL exposed his genitals to PlaintifDf.efendant

10 HOWELL placed a flashlight down his pants and. yelled comments about the size of his

11 penis and genitals. Defendant HOWELL repeatedly thrust h2s hips into the barrier in a

sexual manner. Plaintiff objected to Defendant HOWELL’S offensive behavior and ~3
even felt threatened with Defendant HOWELL’S sexually aggressive behavior. 14

15

43. Plaintiff complained to Art Kielty and Defendant J AMISON on raumerous

16 occasions regarding the hostile work environment. In response to Plaintiff’s

17 complaints, Art Kielty told Plaintiff that she worked with males and needed to 18
"toughen up." Art Kielty also told Plaintiff that he was the "ultimate power," and

2~ stated, "who are they gonna believe, you or me." Plaint~ff alleges Defendants UPRR,

21 JAMISON, and DOES 1-10 foiled to take prompt corrective action as she continued to

~2 work in a hostile work environment.
23 44. After Plaintiff’s constant complaints of the hostile work environment,
24
2~ Defendants UPRR, JAMISON, and DOES 1-10 retalkated against Plaintiff.

26

45. S~ce Plaintiff filed her EEOC Charge based on sex discrimination on

27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) - 10
K:\6f~00 FILES\6200 Jill Harp v. Union Pacifk
lLR\CompIaint.doc

1 August 5, 2003, Defendants retaliated against Plaintiff by removing her from her
2 permanent position and placing her in a temporary position. 3
46. Plaintiff further aIleges Defendants retaliated against her by removing her

5 from her permanent position, placing her on temporary jobs, and repeatedly changing her si~fft, often without prior notice. On one occasion, Plaintiff was removed from her
7 shift so her position on that shift could be given to a male employee returning from 8
suspension for sexual harassment. Plaintiff’s union advised her that UPRR couId not

place her in temporary shifts as they had been do~ng and PlairttLff’s alternative was to 10 11 go on unpaid FURLO leave and demand a permanent position. On at least two

12 occasior~, for a rnir~imum of two weeks each time, Plaintiff was forced to take unpaid

13 FURLO leave until UPRR provided her with a position~ 14
47. Plaindff further alleges she was under closer scrutiny because of her gender 15
16 and for filing a EEOC Charge based on sex discrimination against Defendant UPRR.

17

48. As a direct and proximate result of the above mentioned discriminatory

18 acts and omissions, Plaintiff’s emotional well-being has been substantially injured.
19 Flaiatiff has s~ffered, and will continue to suffer pain and suffering, extreme mental
2O

21 ang-~ish and emotional distress because of the above-described acts and omissions of

22 Defendants.

23

49. Plaintiff has also suffered, and will continu e to suffer, loss of earnings, and

24
nonpecuniary losses as a result of the ~¢tions and omissions of Defendants. 25

26 //

27 INTERVENOR’S COMPLA1NT FOR
28 DAMAGES (C04-886MJP) - 11
K: \60~0 FIL~.q\6200 Jill H~rp v. Union Pacific
~Complaint.doc

1

VI. FIRST CAUSE OF ACTION

SEX DISCRIMINATION AND/OR HOSTILE WORK ENVIRONMENT

2

VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,

3

42 U.S.C. § 2000(e) ET SEQ. (AGAINST DEFENDANTS UPRR AND DOES

4

Plaintif~ realleges each and every aIlegatio~ as set forth in the preceding 5

6 paragraphs with the same force and effect as though fully set forth herein.

7

50. Plaintiff was subjected to severe and pereasive sexual harassment, including

8 but not limited to sex-based conmmnts and unwanted toucl-dng. 9
51. Plaintiff repeatedly compIained about the harassment to Defendants. Despite 10
11 Defendants UPRR and DOES 1-5"s knowledge of the sexual harassment, Defendanfs

12 failed to take prompt corrective action.

13 52. The sex-uaI harassment was so severe and pervasive, it adversely impacted
14 Plaintiff’s abilities to perform her work.
15

16

53. As a direct and proximate result of the above mentioned harassment and

17 discriminatory acts and omissions by Defendants UPRR and Does 1-5, Plaintiff’s
18 emotional well-being has been substantially injured. Plaintiff has experienced, and
19 continues to suffer, from sleepless nights, anxiety, trauma, headaches, and loss of
2O 21 enjoyment of life, and other emotional and stress-rela~ed problems, including distrust
7.2 around men and loss of personal esteem.

23

54. Plaintiff has suffered, and wilI continue to suffer pain and sutfering, extreme

24 mental anguish and ennotional distress because of the above-described acts and omissions

26 of Defea~dants. Plaintiff has also suffered, and will continue to suffer, loss of earning.~,

27 INTERVENOR’S COMPLAINT FOR
DAMAGES (CO4-886MJP) k 12
K:\6000 IZILES\6200 Jill 11ar[0 v. Ur~on Pacific RIR\ComplainLdoc

1.’~ Law Oft’lce~ ofCRANT ~ The l,aw Dome

1 nonpecuniary losses and job opportunities as a result of the actions and omissions of 2 De/eadants.

VII. SECOND CAUSE OF ACTION

4

SEX DISCRIMINATION AND SEXUAL HARASSMENT

5

IN VIOLATION OF RCW 49.60

(AGAINST DEFENDANTS UPRR, JAMISON and DOES 1-10)

6

7

Plaintiff ~ealleges each ond every allegation herein set forth above in the preceding

8 paragraphs with the same force and effect as though ha ~]y ~t forth here,.

9 55. Plaintiff alleges that a substantial factor in the above-referenced hostile
10 working environment was because of Plaintiff’s sex, female.
11

12

56, In taking the actions alleged herein, rite individual Defe~ldants DOES 6-10

13 aided, abetted, encouraged, and incited the above-referenced violations of RCW Chapter

14 49.60 and/or obstructed or attempted to obstruct o~ers from complying with the
15 provisions of Waskington’s Law Against Discrimination in violation of RCW 49.60.220.

17

57, The above-referenced acts caused hljury to Plaintiff.

18

58. The act~ of Defendants and DOES 1-10 as de~ribed herein violate R.C.W. §

19 49.60 ~. as ~ey violate Plaintiffs’ right to be free from sexual harassmenf and sex

20 discrimination in employment.

21

VIII. THIRD CAUSE OF ACTION

22

RETALIATION IN VIOLATION OF TITLE VII OF THE

23

CIVIL RIGHTS ACT OF 1964, 42 U.S.C. ~ 2000(e) ET SEQ.

(Against Defendants UPRR, JAMISON and DOES 1-i0)

24 Plaintiff realleges the preceding paragraphs with the same force and effect, and

26 incorporates the same as thovgh fully set forth herein,
27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) - 13
K:\6000 FILES\6200 Jill Harp v. Unio. Pacific I~R\ Complaiat. doc

1

59. Plaintiff alleges she engaged ~n Wotected actMty when she compla~ed about

2 the ~ harassment to A~ ~el~ and Defendan~ ~R, J ~N and ~ 1-10.

60~ Plaintiff fur~ alleges she engaged in pr~ct~ activi~ when she filed her 4
C~rge of Discri~on alle~ng sexual ~a~ment ~d discri~on with the E~.

6

61. ~ a result of comp~ng a~ut the s~ual har~sment and filing an EE~

7 ~ge of D~ri~nation, Plainer experienc~ advise emplo~ent action. Defendants
8 removed h~ from a p~~t position and placed h~ in tempor~y position.
9

10 Defend~ then repea~dly c~ed Plaintiffs ~m~r~y shi~s. In accord~ce with her

11 ’union ~ideIin~ Pin,tiff t~k ~paid FURLO leave on at least ~o eKcasio~ for a

~imum of ~o wee~ at each ~e.
13 62. Pla~tfff fuah~ ~Ieges she has been plac~ on clo~r screwy. Since Plaintiff
14
filed h~ EE~ C~ge of Di~mination, Def~mdaat JAMI~N ~ repeatedly followed

16 Pla~tfff while ~e was wor~g and diKiplia~ ~ain~ff f~ activities o~r ~e

17 ~ployees were ~t di~iplined f~r. Additionally, on at ]east o~ occasion, she has
18 obs~ved a co-worker ~king photogaphs of her while she was working. Plaintiff is
19 2O not aware of t~s co-worker taking photo~ap~ of ~y other employees.

21

~. Plaintiff a~eges that her opposition to ~e di~rimi~fioa and/or hostile

work environhi was a subst~tiaI fac~r ~ the adverse employment actions
23 64, Ks a direr and .proximate result of the ret~iafion refe~ed to a~ve, Plaintiff
24 has suffered and will continue to suffer da~ges including, but not 1i~ted to, ea~ngs

26 and employment bcn~its, as well as physical, emofio~l, and ment~ disffess

27 INTERVENOR’S COMPLA INT I~OR
DAMAGES (CO4-886MJ P) - 14
K:\6000 FILES\620~ Jill Harp v, Union Pacific
RR \ CompIatnt.doc

’li"~ Law Offic~ ~ GRANT &/K~-4X~IATI~ Teleph~ I~) ,1724~

1 IX. FOURTH CAUSE OF ACTION
RETALIATION IN VIOLATION OF RCW 49,60 (Against Defendant UPRR, JAMISON and DOES 1-10)

Plaintiff realleges the preceding paragraphs with the same force and effect, and incorporates the same as though fully set forth herein.

7

65. Because of the above-referenced opposition activity, Defendants and their

employees subjected Plaintiff to adverse employment actions.

66. Plaintiff alIeges that in violation of RCW Chapter 49~60, her opposition 10
~ctivity was a substantial factor in the above-referenced adverse employment action. 11

12

67. As a direct and proximate result of the retaEation referred to above,

13 Plaintiff has suffered and will continue to suffer damages including, but not limited to,

earnings and employment benefits, as well as physical, emotionaI, and mental distress.

~5

X. FIFrH CAUSE OF ACTION

~6

NEGLIGENT SUPERVISION and/or RETENTION

17

(Against Defendants UPRR, RTS, and DOES 1-5)

18

Plaintiff realleges the preceding paragraph~ with tlae same force and effect, and

19 incorporate the same as though fully set forth herein.
20 68. As Plaintiff’s employer, Defendar~ts UPRR and DOES 1-5 owed and
21
22 breached duties to Plaintiff including, but not lirrfited to: 1) the duty not to employ or

~3 retain employees whom it k~ows or should know to be unfit or dangerous, 2) the duty

~4 to exercise care appropriate to the circumstances in supervising arid/or retaining
25 empIoyees, 3) the duty to exercise due diligence to deferrable whether an employee is
26 or has become unfit or dangerous.
INTERVENOR’S COMPLAINT FOR DAMAGES (CO4-886MJP) - 15 K:\6000 FILES\6200 Jill I..larp v. Union Pacific RR\ComplainKdoc

69. Because Plaintiff was required to report to and work with Defendant RTS,
2 it’s employees and agents while at work, Defendant RTS owed and breached duties to
3 Plaintiff including, but not limited to: 1) the duty not to employ or retain employees
4
5 whom it knows or should know to be unfit or dangerous, 2) the duty to exercise care

6 appropriate to ~e circumstances in supervising and/or retain~g employees, 3) the

7 duty to exercise due diligence to determine whether an empIoyee is or has become unfit

8 or dangerous.
9

10

70. Defendant~ UPRR, RTS and DOES 1-5 failed to exercise care appropriate to

11 the circumstances in retaining its employees who subjected Plaintiff to sexual

12 harassment.
13 71. Defendants UPRR, RTS and DOES 1~5 had actual, constructive and/or
14
imputed notice and knowledge of the unfimess of employees and Defendants DOES 6-

16 10, who 1-~ave subjected Plaintiff to repeated sexual harassment, incIuding but not

17 limited to, sex-based cormnents and unwanted touching.
18 72. Such notice and knowledge made foreseeable the injuries these employees
19
2O inflicted upon the Plaintiff.

21

73. Despite such notice and knowledge, Defendants UPRR, RTS and DOF~ 1-5

22 failed to exercise ordinary care to discipline its employees and/or Defendants DOES 6-

10. 24

74. At all times material herein, Defendan[s UPR.R, RTS and DOES 1-5 had the

26 power, ability, authority, and duty to so intervene, monitor, review, evaluate, control,
27 INTERVENOR’S COMPLAINT FOR DAMAGES (CO4-886MJP) - 16 K:\6000 FILES\6200 Jill Harp v. Union Pacific RR\Complaint.doc

1 regulate, discipline, restrict, and/or penalize the conduct of therr~selves, their agents,
2 and employee~. 3
75. Despite said knowledge, power, and duty, Defendants UPRR, RTS and 4 5 DOES 1-5 negliget~tly failed to act so as to prevent, supervise, monitor, review, evaluate,
6 control, regulate, discipline, and/or penalize such conduct, acts, and failures to act or to
7 otherwise protect Plaintiff, 8
76. Plaintiff is informed and believes, and based thereon alleges, that each of the 9 10 Defendants UPRR, RTS and DOES 1-5 designated as a DOE is legally responsible in
11 some manner for the events, incidents, and happenings described herein, and caused
12 injury and damage to Plaintiff. 13
77. As a direct and proximate result of the failure of Defendants UPRR, RTS and 14
DOES 1~5 to protect Plaintiff and to adequately monitor, review, evaktate, control,

16 regulate, discipline, and/or otherwise penalize the conduct, acts, and failures to act by

17 Defendant themselves, their agents, and employees, a~ alleged herein, saSd conduct,
18 acts, ,and failures to act were perceived by said Defendants, it~ agents, and emp~.oyees
19 as, and in fact had the effect of, ratifying, encouraging, condoning, exacerbating,
2O
21 increasing, and/or wor~rting said conduct, acts, and failures to act, thereby causing

22 reasonably foreseeable injury,

23

78. Defendants UPRRj RTS and DOES 1-5 are responsible for the acts of their

24
employees alleged herein. 25

26

79. Defendants UPRK RTS and DOES 1-5 failure to exercise ordinary care

27 INTERVENOR’S COMPLAINT FOR
DAMAGES (CO4-886MJP) - 17
K:\6000 FILES\6200 JiII I Iarp v. Union p~cafic RR\Complalnt,doc

breached the above-referenced duties of care, proximately caus~g the injury and 2 damages to Plaintiff referenced herein.

80. As a direct and proximate result of Defendants UPRR, RTS and DOES 1-5 4 5 breach of the duties owed to Plaintiff, Plaintiff suffered substantial emotional injuries in
6 an amount to be proven at trial.

7

81. As a further direct andproximate result of Defendants UPRR, RTS and

8
DOES 1-5 actions and omissions, PIaintiff has suffered and will continue to suffer 9

10 mental angui.~h and severe emotional distress.

82. Therefore, Plaintiff is entitled to general and compensatory damages for her 12 emotional injuries in an amount to be proven at trial.

XI. SIXTH CAUSE OF ACTION MALICIOUS HARASSMENT
(Against Defeadants HOWELL and DOES 6-10) 15
Plair~tiff realleges the preceding paragraphs with the same force and effect, and

17 incorporate the same as though fully set forth herein.

83. Defendants HOWELL, and DOES 6-10 exhibited sexually aggressive 19
behavior towards Plaintiff. 2O

21

84. Defendant HOWELL constantly talked about his penis size and even

22 wanted to sniff Plaintiff’s seat when he thought she was mer~,;truating. Defendant also

23 flashed his penis to Plaintiff. P;aintiff was in reasonable fear of her safety, as she was
24 afraid of being raped by Defendant HOWELL.
25

26

85. AdditionaIly, the above-referenced acts caused injtary to Plaintiff, including

27
INTERVENOR’S COMPLAINT FOR 28 DAMAGES (CO4-886MJP) - ~ s
K:\6000 FILES\6200 Jill,Harp v, Union Pacific RR\Cornplaint.doc

but is not limited to those injuries described herein.

XII. SEVENTH CAUSE OF ACTION ASSAULT AND BATTERY
(Against Defendants MOENCH and DOES 6-10)

Flaintiff realleges the preceding paragraphs with the same force and effect, and

6 incorporate the same as though fully set forth hereit~,

7

B6r Defendant MOENCH knowingly and intentionally touched Plaintiff in a

8 harmful manner, causing serious injury. Defendant MOENCH rubbed Pl,aintiff’s legs
9 and arms. He has groped her two to tl~ree times a week from the star~ of Plaintiff’s
10

11 employment with UPRR ~hrough the present. Plaintiff was afraid of Defendant

12 MOENCH’S sexually agh~ressiee behavior.

13 87, Defendant MOENCH knowingly and intentionally placed Flaintiff in

14
reasonable fear of hnminent harm, 15

16

XIII, EIGTH CAUSE OF ACTION

TORT OF OUTRAGE

17

(Against Defendants MOENCH, HOWELL, and DOES 6-10)

18

PLaintiff reai]eges the preceding paragraph~ with the same force and effect, and

19 incorporate the same as though fully set forth herein.
20 88. Plaintiff alleges Defendants MOENCH, HOWELL, and DOES 6 -10 engaged
21

22 in extreme and outrageous conduct, including but not limited to unw~mted torching and

23 egregious sex-based comments.

24

89. Defendant MOENCH groped Ptaini/ff two to three times a week. He hugged

25 Plaintiff without her permission. He rubbed her legs and arras without her permission.
26

27 INTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) - 19
K:\ 6000 FILES\6200 Jill I-Iarlo v. Union Pacific
RR\Complaint.doc

The [aw C~e~ ~ (~l~N[ ~z A~0~IATFS

1 As a result of Defendant MOENCH’S actions, Plaintiff has suffered severe emotional
2 distress.
3 90. Defendant HOWELL made repeated comments about his penis size to
4 Plaintiff and asked I~aintiff to touch his "bald mouse." He asked Plaintiff if she was

6 mensVroafing and if he could "sniff" her seat. He constantly subjected Plaintiff to his

7 sexually aggressive behavior. As a result of Defendant HOWELL’S actions, Plaintiff has
8 suffered severe emotional distress.
9 91. Defendants MOENCH, HOWELL, and DOES 6 - 10 intentionally or recklessly
10
11 caus~Kt Plaintiff to suffer severe emotional distress.

12 XlV. PRAYER FOR RELIEF
13

14

WHEREFORE, Plaintiff pray Chat j~;dgment be entered in her favor and against

15 Defendants as specified in all causes of action as follows:

16
That all Defendants be ordered to pay Plaintiff all actual, compensatory, 17

18

general and punitive damages according to proof at trial and as allowabIe

19

by law;

20

r That Plaintiff be awarded her costs of suit h~cluding reasonable attorr~eys’

21
fees;
22

23

That Plaintiff be awarded prejudgment interest; and

24 fl

tl
26
ti
27 [NTERVENOR’S COMPLAINT FOR
28 DAMAGES (CO4-886MJP) - 20
K:\6000 FILES\6200 Jill Harlo v. Union Pacific RR\Complaint.cIoc

1

4. TEat this Court award such further relief as the Court deems just and

2 proper.
3

4 DATED this 29t~ day of April, 2004

Law Offices of GRANT & ASSOCIATES 6

7

8

Artis C.~, Jr.,~~A No. 26204

Heather L. Hardyns, WSBA No, 32979

9

Attorneys for Jill Harp

11 12 13 14 15 16 17 18 19 20 21 22 25

25
26
27 INTERVENOR’S COMPLAINT FOR DAMAGES (C04-886MJP) - 21 K:\6000 FILES\62(}O JiII Harp v. Union Pacific RR\ Comp~aint.doc

 
 1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 EQUAL EMPLOYMENT OPPORTUNITY 8 COMMISSION,

9

Plaintiff,

10 v.

11 UNION PACIFIC RAILROAD COMPANY

12

Defendant.

No. C04-866 MJP
ORDER DENYING DEFENDANTS RAIL TERMINAL SERVICES AND MOENCHS’ MOTION TO DISMISS INTERVENTION PLAINTIFF’S CLAIMS.

13

14 JILL HARP,

15

Plaintiff in Intervention,

16 v.

17 UNION PACIFIC RAILROAD COMPANY, et al.
18 Defendants in Intervention.
19

20

21

This matter comes before the Court on Defendants Rail Terminal Services (“RTS”) and Alan

22 and Jane Doe Moench’s (“Moench”) Motion to Dismiss Intervention Plaintiff Jill Harp’s (“Harp”)

23 claims against them. (Dkt. No. 20). In considering the motion, the Court has reviewed all materials

24 submitted in support of and in response to the motion, as well as the remaining record. Having

25 considered all relevant materials, the Court DENIES Defendants RTS and Moench’s motion. The

26

Order - 1

1 Court finds that it has supplemental jurisdiction over Harp’s state law claims against Defendants RTS

2 and Moench.

3

BACKGROUND

4

Harp was hired by Union Pacific Railroad Company (“UPRR”) in June of 2002 to work as a

5 tie down loader during the “graveyard” shift (from midnight to eight in the morning). One of her

6 main duties included unlocking containers that arrived on trains. Once the containers were unlocked,

7 RTS employees would load and unload the containers and other shipments from the railroad cars.

8 Thus, due to the nature of their jobs, UPRR and RTS employees interacted with one another quite

9 often.

10

For the purpose of determining whether the Court has jurisdiction over Harp’s claims against

11 RTS and Moench, the following facts, when viewed most favorable to Harp, briefly describe the

12 degree of interaction between RTS and UPRR employees.1 RTS and UPRR share a main office in

13 which managerial and administrative staff conduct business, and RTS and UPRR employees are

14 required to attend daily joint pre-shift meetings conducted by RTS supervisors. Employee policies

15 and procedures are sometimes applied to both RTS and UPRR employees. RTS supervisors

16 authorize overtime for UPRR employees. RTS and UPRR employees sometimes share one break

17 room, share the same work area, and share a locker. RTS supervisors assigned Harp her daily duties,

18 Harp was required to report to RTS supervisors, and Harp had to report any safety issues or

19 immediate concerns to RTS supervisors. Despite these interactions, employees are “hired” only by

20 their respective companies, they do not share standard company policies and procedures, and they

21 have different collective bargaining agreements.

22

23
1 For purposes of determining jurisdiction, the Court is free to hear evidence and to resolve factual 24 disputes in determining whether it has jurisdiction over a claim. Steen v. John Hancock Mutual Life Ins.
Co., 106 F.3d 904, 910 (9th Cir. 1997). However, where jurisdiction is so intertwined with the merits 25 that its resolution depends on the resolution of the merits, the trial court should employ the standard
applicable to a motion for summary judgment. Id. Thus, in such cases, the Court will view the disputed 26 facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).

Order - 2

1

During Spring of 2003, Harp filed a complaint with the EEOC alleging that she was being

2 sexually harassed by both UPRR and RTS employees, and that neither company’s management had

3 addressed her complaints. After conducting an investigation, the EEOC decided to sue UPRR in the

4 U.S. District Court alleging violations of Title VII of the Civil Rights Act of 1964. The EEOC did

5 not sue RTS or any RTS employees. Once the complaint by the EEOC was filed, Harp intervened

6 and filed Title VII claims against UPRR. In addition, Harp filed several state law claims against

7 UPRR, RTS, Moench (an RTS employee), and Martin Howell and Fletcher Jamison (both UPRR

8 employees). Defendants RTS and Moench now ask the Court to dismiss Harp’s state law claims

9 against them because they argue the Court has neither diversity jurisdiction nor supplemental

10 jurisdiction over those state law claims.

11

ANALYSIS

12

The parties raise two issues. The first issue is whether the Court has subject matter

13 jurisdiction through diversity over Harp’s state law claims against RTS and Moench. If the Court

14 does not have subject matter jurisdiction, the second issue is whether the Court has supplemental

15 jurisdiction over those claims.

16 A. Subject Matter Jurisdiction Based on Diversity of Citizenship

17

To bring a diversity case in federal court against multiple defendants, each plaintiff’s

18 citizenship must be diverse from each defendant’s. Lee v. American Nat. Ins. Co., 260 F.3d 997,

19 1004 (9th Cir. 2001). A corporation is “deemed to be a citizen of any State by which it is

20 incorporated and of the State where it has its principal place of business.” 28 U.S.C. §1332(c)(1). In

21 this case, Harp is a citizen of Washington. Defendants Moench are also citizens of Washington.

22 Defendant RTS was incorporated in Delaware and has its principal place of business in Washington.

23 As such, it is a citizen of both Delaware and Washington.

24

25

Because the parties are not diverse, the Court does not have diversity jurisdiction over Harp’s

26 state claims against RTS and Moench. Harp’s argument that venue somehow overrides the diversity

Order - 3

1 requirement is without merit. In addition, Harp argues that the doctrine of necessary and

2 indispensable parties under Fed. R. Civ. P. 19 requires the Court to declare that it has jurisdiction

3 over the claims against RTS and Moench. However, Rule 19 deals with the question of whether the

4 Court must dismiss an action when it cannot add an indispensable party, not whether it should add

5 parties or claims when it does not have subject matter jurisdiction. Even Rule 19(a) makes clear that

6 subject matter jurisdiction must always be present. Thus, the Court does not have subject matter

7 jurisdiction over Harp’s state law claims against Defendants Moench and RTS.

8 B. Supplemental Jurisdiction Over State Claims against RTS and Moench

9

The supplemental jurisdiction statute provides that, where a district court has original

10 jurisdiction, it shall have supplemental jurisdiction over all other claims that are so related to claims in

11 the action within such original jurisdiction that they form part of the same case or controversy. 28

12 U.S.C. § 1367(a). Supplemental jurisdiction includes claims that involve the joinder or intervention

13 of additional parties. Id. However, under § 1367(c), a district court may decline to exercise

14 supplemental jurisdiction for any of four enumerated reasons: (1) if the claim raises a novel or

15 complex issue of State law, (2) the claim substantially predominates, (3) the district court has

16 dismissed the claims over which it has original jurisdiction, or (4) in exceptional circumstances, there

17 are compelling reasons to do so.

18

Defendants RTS and Moench argue that the state law claims against them are not part of the

19 same case or controversy. They further argue that, even if the claims do form part of the same case

20 or controversy, the first and fourth exceptions under § 1367(c) apply to prevent the Court from

21 exercising supplemental jurisdiction. The Court will analyze these arguments separately.

22

1. Same Case or Controversy

23

24

For the related claims to form part of the same case or controversy under § 1367(a), they

25 must form one constitutional case and derive from a common nucleus of operative facts, Mendoza v.

26 Zirkle Fruit Co., 301 F.3d 1163, 1173 (9th Cir. 2002), such that they would normally be tried

Order - 4

1 together. Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004). This determination is fact

2 specific. See generally, Executive Software N. Am., Inc. v. U.S. Dist. Ct., 24 F.3d 1545 (9th Cir.

3 1994). The supplemental claims need only revolve around a central fact pattern. White v. County of

4 Newberry, South Carolina et al, 985 F.2d 168, 172 (4th Cir. 1993). However, where the

5 supplemental claims are wholly separate from the claims upon which the Court has original

6 jurisdiction, supplemental jurisdiction does not exist. Ray v. Tennessee Valley Authority, 677 F.2d

7 818, 826 (11th Cir. 1982). In the end, supplemental jurisdiction boils down to whether the facts will

8 be the same or very similar, and whether the witnesses and evidence will be the same. Mendoza, 301

9 F.3d at 1173 (citing Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1563-1564

10 (11th Cir. 1994)).

11

In the case at bar, the relevant question is whether Harp’s claims against RTS and Moench

12 arise out of the same case or controversy as Harp’s Title VII claims against UPRR. Harp is alleging

13 negligent hiring and supervision against RTS, and assault and battery and outrage against Moench.

14 The Court finds that the evidence, when viewed in favor of Harp, suggests all three of these state law

15 claims form part of the same case or controversy with Harp’s Title VII claims against UPRR.

16

a. Negligent Hiring/Supervision Claim Against RTS

17

RTS argues that, in order to succeed in her claim, Harp must show that RTS knew Moench

18 was unfit and that retaining him caused her injuries. RTS reasons that the facts supporting this claim

19 will only involve RTS’ knowledge of Moench’s acts. However, the Court does not read Harp as

20 making such a narrow allegation against RTS. To the contrary, the Court reads Harp’s complaint as

21 alleging that, in addition to the Moench incident, RTS was also negligent in supervising other

22 employees of its own who played a role in creating a sexually hostile work environment (by

23 distributing the pornographic materials in the shared workplace and by using sex-based profanities in

24 the workplace). (Intervenor’s Compl. at 15-16). This reading is confirmed by Harp’s claim that she

25 “complained and provided notice to RTS’ supervisors of the unwanted behavior by Moench and

26 other RTS employees.” (Pl. in Intervention’s Opp’n to Defs.’ RTS and Moenchs’ Mot. to Dismiss

Order - 5

1 Intervention Pl.’s Claims at 19, ¶¶ 24-25) (emphasis added). The hostile work environment

2 allegation, which is based on the totality of circumstances and is not against specific individuals of

3 either company, is one of the bases upon which Harp is suing UPRR under Title VII. There is no

4 question that the facts, evidence, and witnesses for the sexually hostile work environment allegation

5 under Title VII against UPRR will overlap with Harp’s negligent hiring and supervision claim against

6 RTS because the hostile work environment claim will include the alleged conduct of both Moench

7 and other RTS employees.

8

Even if one reads Harp’s negligent supervision claim against RTS to involve only the alleged

9 conduct of Moench, the claim still forms part of the same case or controversy as the Title VII claim

10 against UPRR because the facts, evidence, and witnesses regarding Moench’s actions will still be

11 used in the hostile work environment claim. Lastly, Harp is alleging that UPRR also negligently hired

12 and supervised employees. Again, the facts, evidence, and witnesses will overlap because the

13 negligent hiring and supervision claim against UPRR is likely to include the hostile work environment

14 claim under Title VII, which in turn will involve RTS employees’ actions. Therefore, the negligent

15 hiring and supervision claim against RTS does form part of the same case or controversy under §

16 1367.

17

b. Assault and Battery and Outrage Claims Against Moench

18

The assault and battery and outrage claims against Moench both arise from the same set of

19 underlying facts. Thus, if these underlying facts form part of the same case or controversy with the

20 Title VII claims, then the Court can exercise supplemental jurisdiction over both causes of action.

21 Both causes of action allege that Defendant Moench physically touched Harp. The complaint alleges

22 that Moench would hug Harp, rub her legs or arms, and grab her. (Intervenor’s Compl. ¶ 38). These

23 allegations, viewed alone, could lead the Court to conclude that they do not form part of the same

24 case or controversy because the facts, testimony, and witnesses in this specific incident would not

25 likely be related to the other incidents.

26

However, Harp’s allegations do not end there. After being allegedly harmed, Harp claims that

Order - 6

1 she complained to both RTS and UPRR management about Moench, neither of which allegedly

2 addressed the situation. (Intervenor’s Compl. ¶ 38). Thus, in order to prove these claims against

3 Moench, the management of RTS and UPRR, the same individuals who will likely testify in the Title

4 VII claims, will likely testify in the claims against Moench. Further, the facts regarding Harp’s hostile

5 work environment allegation will likely overlap with the specific actions of Moench. Thus, the claims

6 form part of the same case or controversy with the Title VII claim. In sum, all three causes of action

7 against RTS and Moench form part of the same claim or controversy.

8

2. Exceptions to Exercising Supplemental Jurisdiction

9

Even if supplemental jurisdiction is present under § 1367(a), a district court may decline to

10 exercise supplemental jurisdiction if: (1) the claim raises a novel or complex issue of State law, (2) the

11 claim substantially predominates over the claim or claims over which the district court has original

12 jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4)

13 in exceptional circumstances, there are other compelling reasons for declining jurisdiction. § 1367(c).

14 A court can decline to assert supplemental jurisdiction only if one of the four categories specifically

15 enumerated in § 1367(c) applies. Executive Software of North America v. U.S. Dist. Ct., 24 F.3d

16 1545, 1555-1556 (9th Cir. 1994). In the event that none of the four categories apply, the court must

17 assert supplemental jurisdiction. Id.

18

First, RTS argues that Harp’s negligent supervision claim against RTS is a novel issue, and

19 thus under subsection (1) of § 1367(c) the Court should decline to exercise supplemental jurisdiction.

20 RTS reasons that while Washington law recognizes negligent supervision liability, it does not

21 recognize this liability to a third party for negligent failure of a company to discipline a worker for

22 discriminatory conduct.

23

The negligent hiring, retention, and supervision doctrine imposes on employers a limited duty

24 to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others.

25 Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997). However, an employer is

26 not liable for negligent supervision of an employee unless the employer knew, or in the exercise of

Order - 7

1 reasonable care should have known, that the employee presented a risk of danger to others. Id.

2 RTS’s argument is not persuasive for three reasons. First, while the parties’ factual scenarios may be

3 different from previous Washington cases, RTS has not shown how this raises a novel legal issue.

4 Harp is still required to prove the elements of negligent supervision to the fact finder. Second,

5 Washington courts do allow the use of the negligent hiring, retention, and supervision claim in

6 circumstances where the wrongdoer’s job enabled and was closely connected to the wrongdoing; that

7 is, where the alleged wrongdoing occurred at the workplace, the nature of the employee’s job

8 required him to associate with the victim, and the job duties enabled the wrongdoer to commit the

9 alleged harm. Betty v. Al-Hellou, 98 Wn. App. 146, 149 988 P.2d 1031 (1999). This is the exact

10 situation in this case.

11

Third, the negligent hiring, retention, and supervision doctrine has been used in related

12 circumstances such as in assault cases, Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 868 P.2d 882

13 (1994), and in inappropriate sexual contact cases, Peck v. Siau, 65 Wn. App. 285, 827 P.2d 1108

14 (1992), Thompson v. Everett Clinic, 71 Wn. App. 548, 555 860 P.2d 1054 (1993). Thus, there is no

15 reason to conclude that the state court would not allow a negligent hiring, supervision, and retention

16 claim based on the facts of this case.

17

Lastly, RTS and Moench argue that, under subsection (4) of § 1367(c), the Court should

18 decline to exercise jurisdiction because the jury will likely be confused by the different claims that

19 Harp alleges against UPRR, UPRR employees, RTS and Moench. Under subsection (4) of §

20 1367(c), the Court must identify the predicate that triggers the applicability of the category (the

21 exceptional circumstance), and then determine whether, in its judgment, judicial economy,

22 convenience, fairness, and comity are best served by declining jurisdiction in the particular case.

23 Executive Software, 24 F.3d at 1558. RTS and Moench’s argument is not persuasive. While the

24 evidence and testimony relating to Harp’s claim against UPRR and its employees will overlap with

25 the claims against RTS and Moench, the jury instructions will likely resolve any possibility of jury

26 confusion. Since the instructions will instruct the jury exactly what law each party is alleged to have

Order - 8

1 violated and what the elements of each alleged violation are, the jury will not fault one party for

2 violating a law that the same party is not alleged to have violated.

3

In sum, the Court has supplemental jurisdiction over Harp’s three claims against RTS and

4 Moench under § 1367(a), and none of the exceptions under § 1367(c) apply for the Court to refuse

5 exercising jurisdiction over such claims.

6

CONCLUSION

7

RTS and Moench’s motion to dismiss Harp’s state law claims against them is DENIED

8 because, while the Court does not have subject matter jurisdiction over such claims, the Court has

9 supplemental jurisdiction over such claims, and none of the supplemental jurisdiction exceptions

10 apply.

11

The Clerk is directed to send copies of this Order to all counsel of record.

12 Dated: November 22, 2004
13 14 15

/s/ Marsha J. Pechman Marsha J. Pechman United States District Judge

16

17

18

19

20

21

22

23

24

25

26

Order - 9

 
 1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7

8

9

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

10

Plaintiff,

11 v.

12 UNION PACIFIC RAILROAD COMPANY,

13

Defendant.

14

No. C04-866P
ORDER DENYING DEFENDANTS MARTIN HOWELL AND CAROL CATES’ MOTION TO DISMISS PLAINTIFF IN INTERVENTION’S CLAIMS.

15

16 JILL HARP,

17

Plaintiff in Intervention,

18 v.

19 UNION PACIFIC RAILROAD COMPANY, et al.,
20 Defendants in Intervention.
21

22

23

This matter comes before the Court on Defendants Martin Howell (“Howell”) and Carol

24 Cates’ (“Cates”) Motion to Dismiss Intervention Plaintiff Jill Harp’s (“Harp”) claims against them.

25 (Dkt. No. 34). Having considered all relevant materials, the Court DENIES the motion. The Court

26 finds that it has supplemental jurisdiction over Harp’s state law claims against Howell and Cates.

Order - 1

1

BACKGROUND1

2

The Equal Employment Opportunity Commission (“EEOC”) filed a complaint on behalf of

3 Harp against Union Pacific Railroad Company (“UPRR”) alleging sexual harassment in violation of

4 Title VII of the Civil Rights Act of 1964. Harp intervened as a Plaintiff and filed federal and state

5 claims against UPRR. She also added, among other Defendants, Howell and Cates against whom she

6 alleges malicious harassment and outrage.

7

The facts, when viewed in the light most favorable to Harp, describe the extent of Howell’s

8 treatment of Harp as follows. Howell was employed by UPRR as a tie down loader, he was Harp’s

9 coworker, and he worked during hours when Harp was at work. Howell engaged in a variety of

10 sexually offensive language with Harp, and he engaged in physical sexual demonstrations. When

11 speaking to Harp, Howell used derogatory terms to refer to women. Howell told Harp he had done

12 “horrible unthinkable things” to his ex-wife. Howell told Harp he had a dream about unbuttoning her

13 blouse. Howell told Harp, “I feel you and I have a connection,” and “I knew the day I met you that I

14 was destined to meet you.” Howell told Harp the first two women he ever loved were named Jill

15 (Harp’s first name is also Jill). Lastly, Howell would often appear in an alley when Harp was alone

16 and he would sneak up on her.

17

In this motion, Howell and Cates argue that the Court does not have supplemental jurisdiction

18 over Harp’s malicious harassment and outrage claims against them. In addition, Howell and Cates

19 move in their reply to strike multiple allegations in Harp’s declaration filed with her response.

20

21

ANALYSIS

22

23

1 For purposes of determining jurisdiction, the Court is free to review evidence and to resolve

factual disputes in determining whether it has jurisdiction over a claim. Steen v. John Hancock Mutual 24 Life Ins. Co., 106 F.3d 904, 910 (9th Cir. 1997). However, where jurisdiction is so intertwined with the

merits that its resolution depends on the resolution of the merits, the trial court should employ the 25 standard applicable to a motion for summary judgment. Id. Thus, in such cases, the Court will view the

disputed facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith 26 Radio Corp., 475 U.S. 574, 587 (1986). Howell and Cates argue that the summary judgment standard

is not applicable to this motion, but they fail to provide any supporting legal authority.

Order - 2

1 A. Howell and Cates’ Motion to Strike Allegations in Harp’s Declaration

2

Howell and Cates move to strike over 30 paragraphs of allegations made by Harp in her

3 declaration filed with her response. In looking at the allegations, it is not necessary for the Court, at

4 this time, to make evidentiary rulings on all of these paragraphs. Rather, the Court will only make

5 rulings on the paragraphs or allegations which it intends to use in order to rule on the motion.

6 Those paragraphs are as follows: 7, 23, 24, 32-36, and 40.

7

Howell and Cates argue that Harp’s statements in paragraphs 7, 23, 24, 32-36, and 40 are not

8 admissible because they are hearsay. Since all of the statements used from those paragraphs in ruling

9 on this motion are alleged statements made by Howell to Harp, the hearsay rule does not apply. Fed.

10 R. Evid. 801(d)(2)(A) (a statement is not hearsay if it offered against a party and is the party’s own

11 statement in either an individual or a representative capacity). In addition, Howell and Cates argue

12 that Harp’s statement in paragraph 24 is inadmissible because it is based on lack of personal

13 knowledge of the witness. As Harp correctly points out however, a witness who merely testifies to

14 the fact that the declarant made the statement need only have firsthand knowledge that the statement

15 was made, not of the events described in the statement. Bemis v. Edwards, 45 F.3d 1369, 1373 n.2

16 (9th Cir. 1995). Thus, the statements in paragraphs 7, 23, 24, 32-36, and 40 which are used to rule

17 on this motion are admissible.

18 B. Subject Matter Jurisdiction Based on Diversity of Citizenship

19

To bring a diversity case in federal court against multiple defendants, each plaintiff’s

20 citizenship must be diverse from each defendant’s. Lee v. American Nat. Ins. Co., 260 F.3d 997,

21 1004 (9th Cir. 2001). In this case, Harp is a citizen of Washington. Defendants Howell and Cates are

22 also citizens of Washington. Thus, the Court does not have diversity jurisdiction over Harp’s claims

23 against Howell and Cates. Harp argues that the doctrine of necessary and indispensable parties under

24 Fed. R. Civ. P. 19 requires the Court to declare that it has jurisdiction over the claims against Howell

25 and Cates. However, Rule 19 deals with the question of whether the Court must dismiss an action

26 when it cannot add an indispensable party, not whether it should add parties or claims when it does

Order - 3

1 not have subject matter jurisdiction. Even Rule 19(a) makes clear that subject matter jurisdiction

2 must always be present.

3 C. Supplemental Jurisdiction Over State Claims against Howell and Cates

4

The supplemental jurisdiction statute provides that, where a district court has original

5 jurisdiction, it shall have supplemental jurisdiction over all other claims that are so related to claims in

6 the action within such original jurisdiction that they form part of the same case or controversy. 28

7 U.S.C. § 1367(a). Supplemental jurisdiction includes claims that involve the joinder or intervention

8 of additional parties. Id. However, under § 1367(c), a district court may decline to exercise

9 supplemental jurisdiction when, among other reasons, the plaintiff’s claim raises a novel or complex

10 issue of State law, or where, in exceptional circumstances, there are other compelling reasons for

11 declining jurisdiction. The Court can decline to assert supplemental jurisdiction only if one of the

12 categories specifically enumerated in § 1367(c) applies. Executive Software of North America v.

13 U.S. Dist. Ct., 24 F.3d 1545, 1555-1556 (9th Cir. 1994). In the event that none of the categories

14 apply, the court must assert supplemental jurisdiction. Id.

15

Howell and Cates’ primary argument is that the malicious harassment law has not been used in

16 the sexual harassment context, and thus, a novel issue of state law exists. This argument is very

17 similar to Defendants Rail Terminal Services and Alan Moench’s argument regarding the novelty of

18 the negligent hiring, retention, and supervision claim, which this Court rejected. Similarly here, while

19 the factual scenario in the present case may be different from prior Washington cases, Howell and

20 Cates have not shown how this raises a novel legal issue. Harp is still required to prove the elements

21 of malicious harassment, which have been laid out by the statute and by Washington cases. The

22 legislature specifically created a private cause of action to provide redress for victims of malicious

23 harassment regardless of their factual circumstances. See RCW 9A.36.083.

24

In addition, Howell and Cates argue that the Court should dismiss the claims because

25 retaining all claims and parties will probably lead to jury confusion and prejudice, since the jury will

26 have difficulty differentiating among the Defendants and the different claims alleged against each

Order - 4

1 Defendant. This argument was already addressed and rejected in this Court’s Order Denying

2 Defendant Moench and RTS’ Motion to Dismiss Intervention Plaintiff’s Claims.

3

Lastly, Howell and Cates make two other arguments. First they argue that Harp cannot show

4 that Howell’s alleged actions were because of his hatred towards Harp’s gender. Second, they argue

5 that Harp does not and cannot allege that Howell caused her physical injury, caused her to suffer

6 property damage, or threatened her with specific physical harm. Both of these arguments are more

7 appropriately failure-to-state-a-claim arguments; they are not applicable in Howell and Cates’ motion

8 to dismiss for lack of subject matter and supplemental jurisdiction.

9

CONCLUSION

10

The Court DENIES Howell and Cates’ motion to dismiss because the Court has supplemental

11 jurisdiction over Harp’s malicious harassment and outrage claims against Howell and Cates. The

12 application of the malicious harassment statute in this context does not raise a novel legal issue, and

13 there are no other compelling reasons precluding the Court from exercising supplemental jurisdiction.

14

15

The Clerk is directed to send copies of this Order to all counsel of record.

16

Dated: December 17, 2004.

17 /s/ Marsha J. Pechman

18

Marsha J. Pechman

United States District Judge

19

20

21

22

23

24

25

26

Order - 5

 
 Case 2:04-cv-00866-MJP Document 64 Filed 04/06/2005 Page 1 of 7

1 A. LUIS LUCERO, JR., REGIONAL ATTORNEY JOHN F. STANLEY, ACTING SUPERVISORY TRIAL ATTORNEY
2 LISA COX, TRIAL ATTORNEY EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3 909 FIRST AVENUE, SUITE 400 SEATTLE, WA 98104
4 TEL: (206) 220-6890 FAX: (206) 220-6911
5

APR I 22005

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

9

18

Defendant.

} Case No. C04-866 MJP

}

}

l PROPOSED CONSENT DECREE AND ORDER DISMISSING ACTION

}

I

} }

111111111111111111111111111111111111111111111

l

11111111111111111111111111111111111

}

04-CV-OOH6(>.ORD

}

}

)

19 I. INTRODUCTION
20
1. This action originated with a charge of employment discrimination filed 21
with the EEOC by Jill Harp rCharge"}. The Charge alleged that Union Pacific Railroad 22
('~he Company" or "UPRR") subjecled Harp to sexual harassment because of her
23
gender in violation ofTitie VII of the Civil Rights Act of 1964, 42 U.S.C. § 21)00e ("Title
24

25
Consent Decree - Page 1

1i"~III.. maillel 01110.. Fado",,( Off.... lf.lildin~
~l!l Rl'l't /I,V""-'II, S~lt,400 SootU~, W...hlngoon tI!Il0-4-101il
TfIM~~ (200)2:.<D-66!13 F.., (200) 220-6911 TOO (~OO) Z20o!I1I82

Case 2:04-cv-00866-MJP Document 64 Filed 04106/2005 Page 2 of 7

1 VII"). EEOC found reasonable cause to believe the Charge to be true. The Ccmpany

2 denies that it discriminated against Ms. Harp.

3

2. Following the issuance of a Letter of Determination and the failure of

4 conciliation efforts, the Commission filed a lawsuit under Title VII against Ule Company

5 on April 15, 21.104.

6

3. The parties want to conclude the claims arising out of the charge, the

7 Commission's determination with regard to the charge, and the lawsuit arifling from the

g charge, without expending further resources in contested litigation.

9

II, NONADMISSION OF LIABILITY AND

10

NONDETERMINATION BY THE COURT

11

4. This Consent Decree is not an adjudication or finding on the merits of this

12 case and shall not be construed as an admission by the Company of a violation of any

13 law.

14

lll, SETTLEMENT SCOPE

15

5. This Consent Decree is the final and complete resolution of !!II allegations

16 of unlawful employment practices included in the Charge, in the Commission's Letter of

17 Determination and in the Commission's complaint filed in the case, as well as claims by

18 the parties andlor class members for attorney fees and costs. The injunctive relief

19 provisions of this Consent Decree apply to all of the Company's intenmodal facilities in

20 the State of Washington and is final and binding as to all such issues and claims.

21

tV. MONETARY RELIEF

22

6. In settlement of this suit, the Company agrees to pay $260,00 to Ms. Harp

23 in settlement and satisfaction of all claims for monetary relief which were or could have

24 25
Consent Decree - Page 2

EQUAL EMPLOYMENT (lppOR rUMlt'!' eOAIIMl&II;lOM
o••tlit ~1'lrI~l OWl;.
F&deral orne.. ElJlIIJn~ 00Ii first AVarue, SuitE! ~QQ sm.IU~, w...hlrlglClo 98104-1061
n,I&!'I>cn" (20!l) 2:20·6118~ F",,(21l1l)23l.S911 TOO (206) 220.;;~~

Case 2:04-cv-00866-MJP Document 64 Filed 0410612005 Page 3 of 7

1 been asserted in the case by her. Ms. Harp and UPRR have executed a separate

2 settlement agreement and release of claims to which the EEOC is not a party.

3

V. INJUNCTIVE RELIEF

4

A. General Provisions

5

7. The Company reaffirms its commitment to continue to comply wnh the

6 requirements of Title VII and all other lederallaws against discrimination in its

7 employment decisions. To further this commitment, it shall monITor its affirmative

8 obligations under this Consent Decree.

9

8. The Company shall not retaliate against any current or former employee

10 for opposing any practice made unlawful by Title VII. Nor shall the Company retaliate

11 against any current or former employee for making a charge or for testifying, aSSisting,

12 or participating in any investigation, proceeding, or hearing associated with the case.

13

9. The Company will expunge from Jill Harp's records.1I referenoes to her

14 charge of discrimination or to its outcome. The Company will confirm dates 01

15 employment lor Ms. Harp if requested by a potential employer and will not refer to Ms.

16 Harp's charge of discrimination.

17

B, Establishment of Policy and Procedures to Prevent Discrimination

18

10. Within thirty (3~) days after entry of this Decree by the Court, the

19 Company shall reissue to all intermodal employees in the slate of Washin~,ton, its anti-

20 discrimination policy prohibiting discrimination on the basis of race, sex, national origin,

21 color, relgion, pregnancy, age, and disability, including a policy prohibiting sexual

22 harassment, and shall post a copy of the policy on a centrally located bulletin board to

23 which all staff at a particular location have access.

24
25
Consent Decree - Page 3

IOQVAL EMPLDYMEIH apPORTUNITTCOMMI3SION $.'1!1o DI,.rto. Ojflc~ Fedoral 0fIl00 ElUldl"!l
&Qlj FInn A _ . eUI1!I4QO S""Ulo wa8hln!)lon 98104-101il
T"'"fIh<ln~ ~20012:2()-~1!(I3
FIOX 12013)220-5911 TOO 1200) z.iW-6BIl2

Case 2:04-cv-00866-MJP Document 64 Filed 04/06/2005 Page 4 of 7

1

C. Training

2

11. The Company will ensure at least three (3) hours of employment

3 discrimination training, including training on sexual harassment, is provided annually

4 each year of the decree for managers and employees in the Company's locations

5 covered by Ihis Consenl Decree. As part of Ihis provision, individuals responsible for

6 enforcing UPRR's antidiscrimination policy shall receive instruction on appropriate

7 procedures for responding to employee complaints of discrimination.

8

D. Reporting

9

12. Six (6) months after entry of this Consent Decree and every "ix (6) months

10 forthe lerm oflhis Consent Decree, the Company shall provide a report to the

11 Commission on the Company's compliance with the Consent Decree. The Compliance

12 Report shall include the following:

13

(a) a summary of complaints of sexual harassment and retaliation, if any,

14 in any facility covered by this Decree and any resulting internal investigations conducted

15 pursuant to the Company's anti-discrimination policies during the preceding six-month

16 period. The report will describe the resolution of each complaint.

17

(b) copies of the attendee lists, evaluations, and materials for all training

18 required by this Decree.

19

If the Company has not complied with any tenn olthe Consent Decree, the

20 Company shall provide a statement specifying the areas of noncompliance, the

21 reason(s) for the noncompliance, and the step. taken to bring the Company into

22 compliance.

23 II I

24 25
Consent Decree - Page 4

EQUAL EMPLOYMEIH OPPORr~NITY COMMISSION S . .ltl~ District CfllGG Feda ... IOfftogBu,ldr.g
~09 Flral A~eru'il, SlJlle ~OO S""UI. w...hin~tcn !lB11U-1DeI
Telephone (2Q61 ~8863 F~. (200) 2»S9'I 100 (~051 ~i(I.t>!l~~

Case 2:04-cv-00866-MJP Document 64 Filed 04/06/2005 Page 5 of 7

1

VI. ENFORCEMENT

2

13. The United States District Court for the Westem District of Washington

3 shall retain jurisdiction over this matter for the duration of the Consent Decree. If the

4 Commission concludes that the Company has breached any of the above provisions, it

5 shall promptly notify the Company providing a written statement of the alleged breach.

6 The parties shall attempt to resolve the dispute for a period not to exceed thirty (30)

7 days after the Commission's notification of the alleged breach. If the Commission is

8 unable to resolve the dispute to its satisfaction, the Commission may bring an action to

9 enforce this Decree.

10

VII. TERMINATION OF DECREE

11

14. This Consent Decree shall be in effect for three (3) years commencing

12 with the date the Consent Decree is entered by the Court. If the Ccmmisslon petitions

13 the Court and the Court finds the Company to have violated the terms of the Consent

14 Decree, the Ccurt may extend the period of the Consent Decree and award the

15 Commission its costs in bringing all enforcement action.

16 III

17 III

18 111

19 III

20 III

21 III

22 III

23 III

24
25
Consent Decree - Page 5

EC.UAL EMPLOYM5NT OPPORTUNITY COMMIUION S. .II~ 011111;1 Ofll;, FfI~9fil IJ~ ElJlllIIng
909 fWIA~"""', Sultll400 S-Hla, W••hlnglDn 9810.1.1061
r,lept.,one (~OO~~:<!l·~~ Fax (2Qt)22Q~911
TDD(Z06~220-6B.!1Z

Case 2:04-cv-00866-MJP Document 64 Filed 04/06/2005 Page 6 of 7

I

2

DATED this 6~ dayol April ,2005.

3 A. LUIS LUCERO, JR. Regional Attorney
4 JOHN F. STANLEY
5 Acting Supervisory Trial Attomey

ERIC S. DRIEBAND General Counsel
JAMES L. LEE Deputy General Counsel

6 LISA COX

GWENDOLYN YOUNG REAMS

Trial Attorney

Associate General Counsel

7

BY: lsi A. Luis Lucero, Jr.

8 EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

9 Seattle District Office

909 First Avenue, Suite 400

Office of the General Counsel

10 Seattle, WaShington 98104

1801 "L" Street NW

Telephone (206) 220-6890

Washington, D.C. 20507

II

Attorneys lor Plaintiff EEOC

12

16 Lane Powell 1420 Fifth Avenue
17 Suite4100 18 Seattle, WA 98101
19
20
21
22 23
24
25
Consent Decree - Page 6

EQUAL EMPLOYMENT O,",,"OR ruN lTV COMMIUIOM 'nliia Dlstrid Ciflo.
~e<:IIo.... OffICA Aollln,"9
gOIl FI~ AV8'1U9. $~"e ~OQ Stlil116 Wll8lllngoc.n 88104·1C161
'~9p/1(1fle (20~) 2ZHe.1t3 F&M (206) 2:ill-6~11 TOO (206) 220.e~

Case 2:04-cv-00866-MJP Document 64 Filed 04/06/2005 Page 7 of 7

1

ORDER

2

The Court having considered the foregoing stipulated agreement of the parties,

3 IT IS HEREBY ORDERED THAT the foregoing consent decree be, and the same
4 hereby is, approved as the final decree of this Court in full settlement of this action.

S This lawsuit is hereby dismissed with prejudice and without costs or attorneys' fees to

6 any party. The Court retains jurisdiction of this matter for purposes of enforcing the

r a,.;o 7 consent decree approved herein.

8

DATED this

day of

,2005.

9

~~

10

HON.MARS AJ.PECHMAN

UNITED STATES DISTRICT JUDGE

11

12

13

14

15

16 PRESENTED BY:

17

lsi Lisa Cox

LISA COX

18 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

19
20

21

22

23

24 25
Consenl Decree - Page 7

E/:tUAL "-Ml'lO"'''~Nl OPPORTUNITY COMUIISSION
Fo&deral Qm.:i E'JI~ng g,)!! Fil'8tAvllI'U8, 8ulOO 400 :k&IUI!. m.h1r1ill!>" 1IIl104-'OO1 T""'l'honB (2!l812211-66B3
F;ox(20012:i1l-6911
roo (20012:20&B2

 
 Case 2:04-cv-00666-MJP Documenl68 Filed 04/19/2005 Page 1 of 8

1 A. LUIS LUCERO, JR., REGIONAL ATTORNEY

JOHN F. STANLEY, ACTING SUPERVISORY TRIAL ATTORNEY

2 LISA COX, TRIAL ATTORNEY

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 3 909 FIRST AVENUE, SUITE 400
SEATTLE, WA 98104 4 TEL: (206) 220-6890
FAX: (206) 220-6911

-Fr(fD -WDOED -tNT ED
-RfCfl
APR 202005

5

Cl,E/'lK At SJ:A nt..E

WESTSR"' W!. D{S,(A'lC1 CO '

6

Ell'

"Ol$TRICTOF"IilUH'1"o,IG10~

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

18

Defendant.

) Case No. C04-866 MJP

)

)

) PROPOSED CONSENT DECREE

) AND ORDER DISMISSING ACTION

)

)

)

)

) )

111111111111111111111111111111111111111111111

)
l

11111111111111111111111111111111111
04-CV-IMIHU6-0RI)

I

)

19 I. INTRODUCTION
20
1. This action originated with a charge of employment discrimination filed
21 with the EEOC by Jill Harp ("Charge"). The Charge alleged that Union Pacific Railroad
22
("the Company" or "UPRR") subjected Harp to sexual harassment because of her
23 gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000. ("Title
24

",QUAL EM~LOYMI!MT o"'POk'rUNIfY COMMISSION

25

~Ieatt.. DI.I...,! Oftln

FDdlll"1 OIfIc~ P.lIHllna

909 FlrstA"'''''o, :Sulle ~oo

s..aUh., I'\IR~~l1!Iton ii!J1Q~-10S1

T~lapl1ono (206) 220-Il8!13

Consent Decree - Page 1

FIOl< (zoJ61 ~2IH,911 TOO (2D1l) 22oa82

Case 2:04~cv-00856-MJP Document 58 Filed 04/19/2005 Page 2 of 8

1 VII"). EEOC found reasonable cause to believe the Charge to be true. The Company

2 denies that it discriminated against Ms. Harp.

3

2. Following the issuance of a letter of Dete/TTlination and the failure of

4 conciliation efforts, the Commission filed a lawsuit under Title VII against the Company

5 on April 15, 2004.

6

3. The parties want to conclude the ciaims arising out of the charge, the

7 Commission's determination with regard to the charge, and the lawsuit arising from the

8 charge, without expending further resources in contested litigation.

9

II. NONA-OMISSION OF .bIABILlTY AND

10

NONDETERMINA-TION BYTHE CQURT

II

4. This Consent Decree is not an adjudication or finding on the merits of this

12 case and shall not be construed as an admission by the Company of a violation of any

13 law.

14

III. SETTLEMENT SCOPE

IS

5. This Consent Decree is the final and complete resolution of all allegations

j 6 of unlawful employment practices included in the Charge. in the Commission·s letter of

17 Determination and in the Commission's complaint filed in the case, as wen as claims by

18 the parties and/or class members for attorney fees and costs. The injunctive relief

19 provisions of this Consent Decree apply to all of the Company's intermodal facilities in

20 the State afWashington and is final and binding as to all such issues and claims.

21

IV. MONETARY RELIEF

22

6, In settlement of this suit, the Company agrees to pay $260,000 to Ms.

23 Harp in settlement and satisfaction of all claims for monetary relief which were or could

24 25
Consenl Decree - Page 2

S;:QUAL EMP~OYM!N" OPPORTUNITY CM,UIIISS10N \jUtl" CI.trl~t OUiCI ~aeral Olliool !kJ1dI~~
1109 Fll'llt AVIIRM, S"I(~ o!OO s.al~". WB'llll'I(jlO~ \!II;IloI..;061
hlephcne (2[16) ~l!l_IS8IIJ FG(206)ZID-W'!j TOO (208) 221l-8M2

Case 2:04-cv-00866-MJP Document 68 Filed 0411912005 Page 3 of 8

1 have been asserted in the ca•• by her. Ms. Harp and UPRR have executed a separate

2 settlement agreement and release of claims to which the EEOC is not a party.

3

V. INJUNCTIVE RELIEF

4

A. General Provisions

5

7. The Company reaffirms its commitment to continue to comply with the

6 requirements of Title VII and all other federal laws against discrimination in its

7 employment decisions. To further this commitment, it shall monitor its affirmative

8 obligations under this Consent Decree.

9

8. The Company shall not retaliate against any current or former employee

10 for opposing any practice made unlawful by Title VII. Nor shall the Company retaliate

II against any current or former employee for making a charge or for testifying, aSSisting,

12 or participating in any investigation, proceeding, or hearing associated with the case.

13

9. The Company will expunge from Jill Harp's records all referen"es to her

14 charge of discrimination or to its outcome. The Company will confirm dates of

15 employment for Ms. Harp if requested by a potential employer and will not refer to Ms.

16 Harp's charge of discrimination.

17

B. Establishment of Policy and Procedures to Prevent Discrimination

18

10. Within thirty (30) days after entry of this Decree by the Court, the

19 Company shall reissue to all intermodal employees in the state of Washington, its anti-

20 discrimination policy prohibiting discrimination on the basis of race, sex, national origin,

21 color, religion, pregnancy, age, and disability, including a policy prohibiting sexual

22 harassment, and shall post a copy of the policy on a centrally located bulletin board to

23 which all staff at a particular location have access.

24 25
Consent Decree - Page 3

I!QUAL EMPLOYMENT ~~POR'fl.INITV COMMISSION 8 ...,.. Pltl!1.,tOftka
FlIt5o!rai omo:e OOIiOlng
S09 FlrsIA""IlJ5, Stile 400 $9!11\1111 W.....,gl<>n 9'1104-1061
telepnallO (l!<l8) 2:m.-eS83 Fax (206I2:.l1l.&.il1 TClD (:!Il61220-61182

Case 2:04-cv~00866-MJP Document 68 Filed 04/19/2005 Page 4 of 8

C. Training

2

11. The Company will ensure at least three (3) hours of employment

3 discrimination training, induding training on sexual harassment, is provided annually

4 each year of the decree for managers and employees in the Company's locations

S covered by this Consent Decree. As part of this provision. individuals responsible for

6 enforcing UPRR's antidiscrimination policy shall receiVe instruction on appropriate

7 procedures for responding to employee complaints of discrimination.

8

D. Reporting

9

12. Six (6) months after entry of this Consent Decree and every six (6) months

10 for the term of this Consent Decree, the Company shall provide a report to the

II Commission on the Company's compliance with the Consent Decree. The Compliance

12 Report shall include the following:

13

(al a summary of complaints of sexual harassment and retaliation, if any,

14 in any facility covered by this Decree and any resulting intemal investigations conducted

15 pursuant to the Company's anti-discrimination policies during the preceding six-month

16 period. The report will describe the resolution of each complaint.

17

(b) copies of the attendee lists, evaluations, and materials fOI' all treining

18 required by this Decree.

19

If the Company has not complied with any term of the Consent Decree, the

20 Company shall provide a statement specifying the areas of noncomplianCE>, the

21 reason(s) for the noncompliance, and the steps taken to bring the Company into

22 compliance.

23 II/

24 25
Consent Decree - Page 4

IOQLlAL I:;MPI,OYUENr OPPOf:TUNITY COMMISSION
f&dl!rnl otIlo<! adldrn~ 9CI9 Fl""AIMI1II~. ~u"" 400 s ...I1.... WaahinDtoo !Il1~4·1D61 T"~hMe ll!Pt,) ~~883
fa.. (:205) 2ZJ-(;9,1 TDD (:z<Xl) ~2CJ.'.;IJ82

Case 2:04·cv·00866·MJP Document 68 Filed 04/19/2005 Page 5 of 8

VI. ENFORCEMENT

2

13. The United States District Court for the Western District of Washington

3 shall retain jurisdiction over this matter for the duration of the Consent Decree. If the

4 Commission concludes that the Company has breached any of the above provisions. it

5 shall promptly notify the Company providing a written statement of the alleged breach.

6 The parties shall attempt to resolve the dispute for a period not \0 exceed Ihirty (30)

7 days after the Commlsslon's notification of the alleged breach. If the Commission is

8 unable to resolve the dispute to its satisfaction. the Commission may bring an aelion to

9 enforce this Decree.

10

VII. TERMINATION OF DECREE

11

14. This Consent Decree shall be in effect for three (3) years commencing

12 with the date the Consent Decree Is entered by the Court. If the Commission petitions

13 the Court and the Court finds the Company to have violated the tenms of the Consent

14 Decree. the Court may extend the period of the Consent Decree and award the

IS Commission its costs in bringing an enforcement action.

16 11/

17 III

18 III

19 III

20 III

21 1/1

22 III

23 1/ I

24 25
Consent Decree - Page 5

II!.QUAL EIIPLOYM~OIT OPPOIHUHIT'I' ~QMIIISSION InW" 1)1.ln~1 Qlflo" FIOd.....1Orrlce BlIIldl"ll
11091'1.,., .4,"""'''' SuM 4QQ
SW(~, Waahl"~n 9Il104.1081 TeI..phooe (206) 22O-11!l12 F..~ (206) i2:ilH~' 1 TOO (2<IIl)220-68Sl

Case 2:04-cv-00866-MJP Document 68 Filed 0411912005 Page 6 of 8

2 3 4 5 6
7
8
9 10 II 12 13
14
15 16 17 18 19
20
21 22 23 24
25
Consent Decree - Page 6

EQU .... L IiiMf'LOYMIONT OPI'O~TlJNIT'I' COMMISSION 11...1.1. DI&tnu oilH;. "~Om""Buij<fi'l1l
901/ Fn' A...""". SlIM ~IJIJ Seatlla, Wa""lngtcn 9Bl~4-11l61
T"'loI1IlQna (2DB) 2~1I!I~ Fax (7.06) 22IHi911 TOO (206) ~lO<l!aB2

Case 2:04-cv-00866-MJP Document 68 Filed 04/19/2005 Page 7 of 8

day of April ,2005.

ERIC S. DRIEBAND General Counsel

JAMES L. LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

BY: lsi A. Luis Lucero. Jr.

7 EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

8 Seattle District Office

909 First Avenue, Suite 400

Office of the General Couns,,1

9 Seattle, Washington 98104

1801 "L" Street NW

Telephone (206) 220-6890

Washington, D.C. 20507

10

Attorneys for Plaintiff EEOC

11

15 Lane Powell 1420 Fifth Avenue
16 Suite 4100
Seattle, WA 98101 17 18 19
20 21 22 23
24
25
Consent Decree· Page 7

o;QI,IAL EMPLOYMEliIT OPPQF',TI,IIUTY COMMIS:l'IQN SUI'" bl.III~. Offk:;~ fEderal 0lIl09 e..lldln~
9Cl~ FI",IAv~I"lJ/I. SUM ~OO sarltD'I, W9snlngtan !l6.104-1~&1
Teleplln"" (lOa) 221HIIlII:J Fax (t(l6p20"Ml1 TOO l2(lli) 220.f!BII2

Case 2:04-cv-00866-MJP Document 68 Filed 04/19/2005 Page 8 of 8

1

ORD~R

2

The Court having considered the foregoing stipulated agreement of the parties,

3 IT IS HEREBY ORDERED THAT the foregoing consent decree be, and the same

4 hereby is, approved as the final decree of this Court in fuli settlement of this aclion.

5 This lawsuit is hereby dismissed with prejudios and without costs or attorneys' fees to

6 any party. The Court relains jurisdiclion of this matter for purposes of enforcing the

7 consent decree approved herein.

8

~ ~ DATED this

day of

,2005.

9
10

~~

UNITED STATES DISTRICT JUDGE

11

12

13

14

15

16 PRESENTED BY:

17

Is! Lisa Cox

LISA COX

18 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

19

20

21

22

23

24
25
Consent Decree - Page 8

EQUAL EMPLOYMENT O""O~TUNITY COMMIUION SaaUh! DIUnC! om~.
!'edtinll om"., EUICllng 1ID!! F1nll AVl!IriJt. '3U~9 ..00
Seat~", W..nl"lllon 118104-1061 T_~" (2Wj 221-8883 n~ (2M) ~2D-6911 TOO (21)6] WJ-Il~2

 
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CLOSED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:04-cv-00866-MJP

Equal Employment Opportunity Commission v. Union Pacific Railroad Company Assigned to: Hon. Marsha J. Pechman Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 04/15/2004 Date Terminated: 04/12/2005 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by A Luis Lucero, Jr EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SEATTLE DISTRICT OFFICE 909 FIRST AVE STE 400 SEATTLE, WA 98104-1061 206-220-6883 Email: LUIS.LUCERO@EEOC.GOV LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Freeman Stanley EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SEATTLE DISTRICT OFFICE 909 FIRST AVE STE 400 SEATTLE, WA 98104-1061 206-220-6883 Fax: 206-220-6892 Email: JOHN.STANLEY@EEOC.GOV LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Ann Cox U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 909 - 1st AVE SUITE 400 SEATTLE, WA 98104 206-220-6890 Fax: 206-220-6911 Email: lisa.cox@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Intervenor Plaintiff Jill Harp
V. Defendant Union Pacific Railroad Company
Defendant 1-10 Does inclusive Defendant
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represented by Heather L Hardyns GRANT & ASSOCIATES 3002 S 47TH ST TACOMA, WA 98409 253-472-6213 Email: hhardyns@lawdome.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Artis C Grant, Jr. GRANT & ASSOCIATES 3002 S 47TH ST TACOMA, WA 98409 253-472-6213 Fax: FAX 1-253-473-9695 Email: agrant@lawdome.com ATTORNEY TO BE NOTICED
represented by Ralph Crockett Pond BENEDICT GARRATT 1000 SECOND AVE 30TH FLOOR SEATTLE, WA 98104-1062 206-447-4345 Email: pond@benedictgarratt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy David Wackerbarth LANE POWELL PC (SEA) 1420 FIFTH AVE STE 4100 SEATTLE, WA 98101-2338 206-223-7000 Fax: FAX 223-7107 Email: wackerbartht@lanepowell.com ATTORNEY TO BE NOTICED
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Jane Doe Howell
Defendant Martin Howell individually and the marital community therof
Defendant Jane Doe Moench
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represented by Michael Alexander Patterson LEE SMART COOK MARTIN & PATTERSON PS INC 701 PIKE ST STE 1800 ONE CONVENTION PL SEATTLE, WA 98101-3929 206-624-7990 Fax: FAX 624-5944 Email: MAP@Leesmart.com TERMINATED: 01/06/2005
William R Kiendl LEE SMART COOK MARTIN & PATTERSON (SEA) 701 PIKE ST STE 1800 ONE CONVENTION PL SEATTLE, WA 98101-3929 206-624-7990 Fax: FAX 624-5944 Email: wrk@leesmart.com TERMINATED: 01/06/2005
represented by Martin Howell 10509 VERNON ROAD LAKE STEVENS, WA 98258 PRO SE
Michael Alexander Patterson (See above for address) TERMINATED: 01/06/2005
William R Kiendl (See above for address) TERMINATED: 01/06/2005
represented by David L Shorett SHORETT LOVEKIN & YOUNG 200 MAYNARD BLDG 119 FIRST AVE SO SEATTLE, WA 98104 206-447-1560 Email: dshorett@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristin Nealey Meier RYAN SWANSON & CLEVELAND 1201 3RD AVE
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Defendant Alan Moench individually and the marital community thereof with
Defendant Jane Doe Jamison
Defendant Fletcher Jamison individually and the marital community thereof
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STE 3400 SEATTLE, WA 98101-3034 206-654-2293 Email: nealey@ryanlaw.com TERMINATED: 11/24/2004
Thao A. Tiedt RYAN SWANSON & CLEVELAND 1201 3RD AVE STE 3400 SEATTLE, WA 98101-3034 206-464-4224 Fax: FAX 652-2930 Email: tiedt@ryanlaw.com TERMINATED: 11/30/2004
represented by David L Shorett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristin Nealey Meier (See above for address) TERMINATED: 11/24/2004
Thao A. Tiedt (See above for address) TERMINATED: 11/30/2004
represented by Ralph Crockett Pond (See above for address) TERMINATED: 12/29/2004
Timothy David Wackerbarth (See above for address) ATTORNEY TO BE NOTICED
represented by Joyce L Thomas FRANK FREED SUBIT & THOMAS 705 2ND AVE STE 1200 SEATTLE, WA 98104-1729 206-682-6711 Fax: FAX 682-0401 Email: jthomas@frankfreed.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Defendant Rail Terminal Services
Defendant Carol Cates

Ralph Crockett Pond (See above for address) TERMINATED: 12/29/2004
Timothy David Wackerbarth (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Nealey Meier (See above for address) ATTORNEY TO BE NOTICED
Thao A. Tiedt (See above for address) ATTORNEY TO BE NOTICED
represented by Carol Cates 10509 VERNON ROAD LAKE STEVENS, WA 98258 PRO SE

Date Filed 04/15/2004
04/27/2004 04/29/2004
04/29/2004 04/29/2004 04/30/2004

#

Docket Text

1 COMPLAINT and JURY TRIAL DEMANDED against defendant Union Pacific Railroad Company (Summons(es) issued) (Receipt # fee waived) , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(PM, ) (Entered: 04/17/2004)
3 SERVICE OF SUMMONS and Complaint returned executed upon defendant Union Pacific Railroad Company on 4/22/2004. (LT, ) (Entered: 05/04/2004)
5 MOTION to Intervene and to file intervenor's complaint for damages by Intervenor Plaintiff Jill Harp. Noting Date 5/14/2004. (Attachments: # 1 Proposed Order # 2 Proposed intervenor's complaint for damages)(MD, ) (Entered: 05/07/2004)
6 DECLARATION of Artis C Grant Jr re 5 MOTION to Intervene (MD, ) (Entered: 05/07/2004)
7 CERTIFICATE OF SERVICE by Intervenor Plaintiff Jill Harp re 5 MOTION to Intervene, 6 Declaration. (MD, ) (Entered: 05/07/2004)
2 NOTICE of Appearance by attorney Timothy David Wackerbarth on behalf of Defendant Union Pacific Railroad Company (Wackerbarth, Timothy) (Entered: 04/30/2004)

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05/05/2004 05/19/2004 06/10/2004 06/10/2004 06/15/2004
06/18/2004 06/18/2004 06/23/2004 06/28/2004 07/13/2004 07/13/2004 07/26/2004 07/29/2004 08/12/2004
08/12/2004

4 NOTICE of Appearance (Attachments: # 1 Certificate of Service)(Grant, Artis) (Entered: 05/05/2004)
8 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT Joint Status Report due by 6/30/2004; by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 05/19/2004)
9 ORDER Granting re 5 MOTION to Intervene and to file intervenor's complaint for damages filed by Jill Harp by Judge Marsha J. Pechman. (MD, ) (Entered: 06/10/2004)
10 INTERVENOR COMPLAINT , filed by Jill Harp.(MD, ) (Entered: 06/10/2004)
11 PRAECIPE TO ISSUE SUMMONS re 10 Intervenor Complaint by Intervenor Plaintiff Jill Harp. (Attachments: # 1 Summons to Alan Moench# 2 Summons Fletcher Jamison# 3 Summons to Martin Howell# 4 Summons to Rail Terminal Services# 5 Summons to Union Pacific Railroad# 6 Summons to Jane Doe Moench# 7 Summons to Jane Doe Jamison# 8 Summons to Jane Doe Howell)(Hardyns, Heather) Modified on 6/16/2004-issued s/c and mailed to cnsl of record for service(MD, ). (Entered: 06/15/2004)
12 NOTICE of Appearance by attorney Timothy David Wackerbarth on behalf of Defendants Fletcher Jamison, Jane Doe Jamison, Union Pacific Railroad Company (Wackerbarth, Timothy) (Entered: 06/18/2004)
13 MINUTE ORDER extending deadline; Joint Status Report due by 7/30/2004; by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 06/18/2004)
14 ANSWER to Complaint and Affirmative Defenses with Jury Demand by Union Pacific Railroad Company.(Wackerbarth, Timothy) (Entered: 06/23/2004)
15 NOTICE of Appearance by attorney Thao A. Tiedt on behalf of Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services (Tiedt, Thao) (Entered: 06/28/2004)
16 NOTICE of Appearance by attorney William R Kiendl on behalf of Defendant Martin Howell (Kiendl, William) (Entered: 07/13/2004)
17 ANSWER to Intervenor Complaint and Affirmative Defenses by Alan Moench, Jane Doe Moench, Rail Terminal Services.(Tiedt, Thao) (Entered: 07/13/2004)
18 INITIAL DISCLOSURES by Defendant Union Pacific Railroad Company.(Pond, Ralph) (Entered: 07/26/2004)
19 JOINT STATUS REPORT AND DISCOVERY PLAN filed by all parties. Est. Trial Days: 10. (Hardyns, Heather) (Entered: 07/29/2004)
20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS by Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services. Noting Date 9/10/2004 and Proposed Order (Tiedt, Thao) Modified text on 8/17/2004 (MD, ). (Entered: 08/12/2004)
21 DECLARATION of R. Michael List filed by Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Tiedt, Thao) (Entered: 08/12/2004)

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08/12/2004 08/12/2004 08/17/2004 08/26/2004 08/31/2004 08/31/2004 09/13/2004
09/13/2004 09/13/2004 09/13/2004 09/13/2004 09/13/2004

22 DECLARATION of Alan Moench filed by Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Tiedt, Thao) (Entered: 08/12/2004)
23 DECLARATION of Glenn Strieker filed by Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Tiedt, Thao) (Entered: 08/12/2004)
24 ANSWER to Intervenor Complaint by Union Pacific Railroad Company and Fletcher Jamison.(Pond, Ralph) Modified on 8/23/2004; removed duplicative text added by counsel (AF, ). (Entered: 08/17/2004)
25 NOTICE by Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services that the following is RE-NOTED: 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS Noting Date 9/17/2004. (Tiedt, Thao) (Entered: 08/26/2004)
26 SUPPLEMENT re 18 Initial Disclosures First Supplemental FRCP 26(a)(1) Disclosure by Defendant Union Pacific Railroad Company. (Pond, Ralph) (Entered: 08/31/2004)
27 SUPPLEMENT re 18 Initial Disclosures First Supplemental FRCP 26(a)(1) Disclosure by Defendant Union Pacific Railroad Company. (Pond, Ralph) (Entered: 08/31/2004)
28 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 10 days. Jury Trial set for 9/19/2005 at 9:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 10/12/2004; Amended Pleadings due by 10/21/2004; Expert Witness Disclosure due by 3/23/2005; Motions due by 4/22/2005; Discovery due by 5/22/2005; Dispositive motions due by 6/21/2005; Settlement conference to be held by 7/21/2005; 39.1 Settlement Report due by 8/20/2005; Motions in Limine due by 8/22/2005; Pretrial Order due by 9/7/2005; Pretrial Conference set for 9/9/2005 at 1:30 PM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 9/14/2005; Voir dire/jury instructions due by 9/14/2005; by Judge Marsha J. Pechman. (ES) (Entered: 09/13/2004)
29 RESPONSE, by Intervenor Plaintiff Jill Harp, to 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Attachments: # 1 Supplement Response to motion, pp 12-24# 2 Proposed Order # 3 Certificate of Service)(Hardyns, Heather) (Entered: 09/13/2004)
30 DECLARATION of Artis C. Grant, Jr. filed by Intervenor Plaintiff Jill Harp re 29 Response to Motion (Hardyns, Heather) (Entered: 09/13/2004)
31 DECLARATION of Jill Harp filed by Intervenor Plaintiff Jill Harp re 29 Response to Motion (Hardyns, Heather) (Entered: 09/13/2004)
32 RESPONSE, by Defendants Fletcher Jamison, Union Pacific Railroad Company, to 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Pond, Ralph) (Entered: 09/13/2004)
33 EXHIBIT 1 to Declaration of Artis C. Grant, Jr. re 30 Declaration by Intervenor Plaintiff Jill Harp. (Attachments: # 1 Ex 2# 2 Ex 3# 3 Ex 4# 4 Ex 5# 5 Ex 6# 6 Ex 7# 7 Ex 8# 8 Ex 9# 9 Ex 10# 10 Ex 11# 11 Ex 12)(Hardyns, Heather) Modified on 9/14/2004 to edit docket text (ECS, ). (Entered: 09/13/2004)

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09/13/2004 09/13/2004 09/13/2004 09/14/2004 09/16/2004 09/16/2004 09/16/2004 10/07/2004 10/08/2004
10/25/2004
10/25/2004
10/25/2004 10/25/2004 10/28/2004

34 RESPONSE, by Defendant Martin Howell, to 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Attachments: # 1 Proposed Order Granting Motion to Dismiss)(Kiendl, William) (Entered: 09/13/2004)
35 DECLARATION of Martin Howell filed by Defendant Martin Howell re 34 Response to Motion (Kiendl, William) (Entered: 09/13/2004)
36 DECLARATION of Michael A. Patterson filed by Defendant Martin Howell re 34 Response to Motion (Kiendl, William) (Entered: 09/13/2004)
37 NOTICE of Appearance by attorney Kristin Rose Nealey on behalf of Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services (Nealey, Kristin) (Entered: 09/14/2004)
38 REPLY, filed by Defendants Alan Moench, Jane Doe Moench, Rail Terminal Services, TO RESPONSE to 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Nealey, Kristin) (Entered: 09/16/2004)
39 RESPONSE, by Defendant Union Pacific Railroad Company, to 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Pond, Ralph) (Entered: 09/16/2004)
40 REPLY, filed by Defendants Fletcher Jamison, Union Pacific Railroad Company, TO RESPONSE to 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS (Pond, Ralph) (Entered: 09/16/2004)
41 ORDER regarding Defendants Howel and Gates' Joinder, by Judge Marsha J. Pechman. (RG, ) (Entered: 10/07/2004)
Defts Howell and Gates motion to dismiss 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS, 34 Response/joinder in the underlying motion to dismiss 41 Order; NOTED on motion calendar; Noting Date 10/29/2004. (MD, ) (Entered: 10/08/2004)
42 RESPONSE, by Intervenor Plaintiff Jill Harp, to Defts Howell and Gates motion to dismiss 34 re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS, 34 Response to Motion, 41 Order NOTED on motion calendar;. (Hardyns, Heather) (Entered: 10/25/2004)
43 DECLARATION of Jill Harp filed by Intervenor Plaintiff Jill Harp re Defts Howell and Gates motion to dismiss 34 re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS, 34 Response to Motion, 41 Order NOTED on motion calendar; (Attachments: # 1 Pages 11-19 of Harp Declaration)(Hardyns, Heather) (Entered: 10/25/2004)
44 PRAECIPE to attach document (Proposed Order) re 42 Response to Motion by Intervenor Plaintiff Jill Harp. (Hardyns, Heather) (Entered: 10/25/2004)
45 CERTIFICATE OF SERVICE by Intervenor Plaintiff Jill Harp re 42 Response to Motion, 43 Declaration,, 44 Praecipe to attach Document. (Hardyns, Heather) (Entered: 10/25/2004)
46 REPLY, filed by Defendants Jane Doe Howell, Martin Howell, IN SUPPORT of Defts Howell and Gates motion to dismiss 34 re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS, 34 Response to Motion, 41 Order

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10/28/2004
11/03/2004
11/03/2004 11/22/2004 11/24/2004 11/30/2004 12/03/2004 12/17/2004 12/17/2004 12/17/2004 12/23/2004 12/23/2004

NOTED on motion calendar; (Kiendl, William) (Entered: 10/28/2004)
47 DECLARATION of Martin Howell (Supplemental) filed by Defendants Jane Doe Howell, Martin Howell re Defts Howell and Gates motion to dismiss 34 re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS, 34 Response to Motion, 41 Order NOTED on motion calendar; (Kiendl, William) (Entered: 10/28/2004)
48 SURREPLY filed by Intervenor Plaintiff Jill Harp re Defts Howell and Gates motion to dismiss 34 re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS, 34 Response to Motion, 41 Order NOTED on motion calendar; (Attachments: # 1 Certificate of Service)(Hardyns, Heather) (Entered: 11/03/2004)
49 DECLARATION of Heather Hardyns filed by Intervenor Plaintiff Jill Harp re Defts Howell and Gates motion to dismiss 34 re 20 MOTION to Dismiss INTERVENTION PLAINTIFF'S CLAIMS, 34 Response to Motion, 41 Order NOTED on motion calendar; (Hardyns, Heather) (Entered: 11/03/2004)
50 ORDER denying 20 Motion to Dismiss by Judge Marsha J. Pechman.(RG, ) (Entered: 11/22/2004)
51 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Kristin Rose Nealey for Defendants Jane Doe Moench, Alan Moench, Rail Terminal Services. (Nealey, Kristin) (Entered: 11/24/2004)
52 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Thao A. Tiedt for Defendants Jane Doe Moench, Alan Moench. (Tiedt, Thao) (Entered: 11/30/2004)
53 NOTICE by Defendants Jane Doe Moench, Alan Moench of Substitution of Counsel for Alan Moench and Jane Doe Moench, Substituting in David L. Shorett (Nealey, Kristin) (Entered: 12/03/2004)
54 ORDER denying 20 Motion to Dismiss by Judge Marsha J. Pechman.(RG, ) (Entered: 12/17/2004)
55 MOTION to Withdraw as Attorney by Michael A. Patterson and William R. Kiendl by Defendants Jane Doe Howell, Martin Howell. Noting Date 12/30/2004. (Attachments: # 1 Proposed Order)(Kiendl, William) (Entered: 12/17/2004)
56 DECLARATION of Michael A. Patterson filed by Defendants Jane Doe Howell, Martin Howell re 55 MOTION to Withdraw as Attorney by Michael A. Patterson and William R. Kiendl (Kiendl, William) (Entered: 12/17/2004)
57 RESPONSE, by Intervenor Plaintiff Jill Harp, to 55 MOTION to Withdraw as Attorney by Michael A. Patterson and William R. Kiendl. (Attachments: # 1 Proposed Order # 2 Proposed Order Alternative)(Hardyns, Heather) (Entered: 12/23/2004)
58 DECLARATION of Heather Hardyns filed by Intervenor Plaintiff Jill Harp re 55 MOTION to Withdraw as Attorney by Michael A. Patterson and William R. Kiendl (Hardyns, Heather) (Entered: 12/23/2004)

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12/29/2004 12/29/2004 12/29/2004
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01/07/2005 04/06/2005 04/07/2005 04/12/2005
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59 ANSWER to Intervenor Complaint and Affirmative Defenses by Jane Doe Howell, Martin Howell.(Kiendl, William) (Entered: 12/29/2004)
60 REPLY, filed by Defendants Jane Doe Howell, Martin Howell, TO RESPONSE to 55 MOTION to Withdraw as Attorney by Michael A. Patterson and William R. Kiendl (Kiendl, William) (Entered: 12/29/2004)
61 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendant Fletcher Jamison. Ralph Crockett Pond is substituted as counsel for Defendant. Attorney Ralph Crockett Pond terminated. Ralph Crocket Pond is Terminated, NOT substituted; Joyce L. Thomas is Substituted (Pond, Ralph) (Entered: 12/29/2004)
62 ORDER GRANTING re 55 MOTION to Withdraw as Attorney for deft Martin Howell and Carol Catesby Michael A. Patterson and William R. Kiendl, Attorney William R Kiendl and Michael Alexander Patterson terminated., Motions terminated: by Judge Marsha J. Pechman. (MD,copy to Pro Se Howell and Cates ) (Entered: 01/06/2005)
63 NOTICE by Defendant Union Pacific Railroad Company of Name Change of Attorneys of Record (Pond, Ralph) (Entered: 01/07/2005)
64 STIPULATION AND PROPOSED ORDER Dismissing Action by parties. (Cox, Lisa) (Entered: 04/06/2005)
65 NOTICE from Mediator Michele M Sales, that on 3/24/05, the parties participated in a mediation. This matter is now resolved. (MD, ) (Entered: 04/08/2005)
66 CONSENT DECREE AND ORDER DISMISSING ACTION WITH PREJUDICE AND WITHOUT COSTS OR ATTORNEYS' FEES TO ANY PARTY. The Court retains jurisdiction of this matter for purposes of enforcing the consent decree approved herein by Judge Marsha J. Pechman. (MD ) (Entered: 04/13/2005)
67 STIPULATION AND PROPOSED ORDER of Dismissal of Complaint In Intervention by parties. (Pond, Ralph) (Entered: 04/18/2005)
68 AMENDMENT to 64 PROPOSED Stipulation CONSENT DECREE by Plaintiff Equal Employment Opportunity Commission. (Cox, Lisa) Modified text on 4/20/2005 (MD, ). (Entered: 04/19/2005)
69 STIPULATION AND ORDER of dismissal of complaint in intervention re 67 Stipulation filed by Union Pacific Railroad Company, by Judge Marsha J. Pechman. (MD, ) (Entered: 04/20/2005)
70 AMENDED CONSENT DECREE AND ORDER DISMISSING ACTION by Judge Marsha J. Pechman. (MD, ) (Entered: 04/20/2005)

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 EEOC LITIGATION SETTLEMENT REPORT - April 2005

http://www.eeoc.gov/litigation/settlements/settlement04-05.html

EEOC v. Union Pacific Railroad Co. No. C04-866MJP (W.D. Wash. April 15, 2005)
In this Title VII case, the Seattle District Office alleged that defendant, a railroad, subjected a woman who worked as an intermodal operator (loader) at its ARGO yard in Seattle, Washington to a sexually hostile work environment. The charging party was the only female loader at the facility. She complained about the harassment which included pornographic materials throughout the facility, a drawing of male genitalia posted in a common area, ads for escort services, foul language, sexual comments, and a male coworker exposing himself to her to management and to the Union Pacific Police. The defendant took some ameliorative action, but did not correct the hostile environment or discipline the man who exposed himself to charging party.
Under the 3-year consent decree resolving this case, charging party will receive $260,000 in monetary relief. Defendant will not retaliate against current or former employees for opposing practices made unlawful under Title VII. The following decree requirements apply to all of defendant's Intermodal facilities in Washington State: (1) reissuing defendant's antidiscrimination policy to all employees and posting a copy of it on a centrally located bulletin board at each location; (2) providing all employees with 3 hours of employment discrimination training, including training on sexual harassment, annually throughout the term of the consent decree; and (3) reporting to the EEOC every 6 months on complaints of sexual harassment and retaliation, internal investigations of the complaints, and resolutions thereof.

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