Case 5:04-cv-01078-M Document 1 Filed 08/31/2004 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION

}

}

Plaintiff,

}

}

v.

}

}

(1) WESTPHALEN INSURANCE

}

SERVICES, INC. d/b/a

}

WESTPHALEN INSURANCE,

}

}

Defendant.

}

}

CIVIL ACTION NO. JURY TRIAL DEMAND

COMPLAINT

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

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

provide appropriate relief to Charging Parties Susan Solis, Terry Fitzgerald and Alicia Williams.

The Equal Employment Opportunity Commission alleges that the Defendant, Westphalen Insurance

Services, Inc., d/b/a Westphalen Insurance, violated Title VII when it subjected Susan Solis, Terry

Fitzgerald and Alicia Williams to discrimination because of their sex, female, by subjecting them

to a sexually hostile work environment, retaliation, including discharge and constructive discharge.

JURISDICTION AND VENUE

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

and 1345. This action is authorized and instituted pursuant to Section 706(f) (3) of Title VII of the

Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. § 2000e-5 (f)(3), and Section 102 of

the Civil Rights Act of 1991, 42 U.S.C. § 1981A.

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Case 5:04-cv-01078-M Document 1 Filed 08/31/2004 Page 2 of 5
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Western District of Oklahoma.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (“the Commission”), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Westphalen Insurance Services, Inc., d/b/a Westphalen Insurance (hereinafter “Westphalen”) has continuously been and is now doing business in the State of Oklahoma and has continuously employed at least fifteen employees. Defendant operates Westphalen Insurance in the City of Oklahoma City where the Charging Parties were employed. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C.§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, the Charging Parties, Susan Solis, Terry Fitzgerald and Alicia Williams filed charges of discrimination with the Commission alleging violations of Title VII by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least early 1999, the Defendant has engaged in conduct in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1) at its Oklahoma City facility. Specifically,
2

Case 5:04-cv-01078-M Document 1 Filed 08/31/2004 Page 3 of 5
the Defendant discriminated against Charging Parties Susan Solis, Terry Fitzgerald and Alicia Williams based upon sex by subjecting them to a sexually hostile work environment. The behavior complained of herein also resulted in the constructive discharge of Charging Party Solis and in retaliation against Charging Parties Fitzgerald and Williams by terminating their employment.
Throughout their employment with Defendant, the Charging Parties were subjected to sexual harassment from the male supervisor, owner and/or /majority stockholder of Defendant corporation, including but not limited to suggestive, lewd and offensive comments as well as unwelcome touching. The Defendant failed to provide, and/or communicate to employees, a policy prohibiting such discriminatory treatment. Further, Defendant failed to take prompt, effective, remedial action to correct the conduct complained about by the Charging Parties.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Susan Solis, Terry Fitzgerald and Alicia Williams of equal employment opportunities because of their sex.
9. The unlawful employment practices complained of in paragraph 7 were intentional. 10. The unlawful employment practices complained of in paragraph 7 above were committed with malice or with reckless indifference to the federally protected rights of Susan Solis, Terry Fitzgerald and Alicia Williams.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Westphalen, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of sex.
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B. Order the Defendant to institute and carry out policies, practices and programs that provide equal employment opportunities for Susan Solis, Terry Fitzgerald and Alicia Williams and other employees and which eradicate the effects of the Defendant's past unlawful employment practices.
C. Order the Defendant to make whole Susan Solis, Terry Fitzgerald and Alicia Williams by providing appropriate back pay with prejudgment interest, in amounts to be proved at trial, pecuniary damages, out-of-pocket losses and other affirmative relief necessary to eradicate the effects of the Defendant's unlawful employment practices, including but not limited to rightful place reinstatement of Susan Solis, Terry Fitzgerald and Alicia Williams or front pay in lieu of reinstatement.
D. Order the Defendant to make whole Susan Solis, Terry Fitzgerald and Alicia Williams by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 7 through 10, above, including but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial.
E. Order the Defendant to make whole Susan Solis, TerryFitzgerald and Alicia Williams by providing compensation for past and future pecuniary losses resulting from the unlawful practices complained of in paragraphs 7 through 10, above, in amounts to be determined at trial.
F. Order the Defendant to pay Susan Solis, Terry Fitzgerald and Alicia Williams punitive damages for its malicious conduct or reckless indifference described in paragraphs 7 through 10 above, in an amount to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public
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interest.
H. Award the Commission its costs in this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted,
ERIC S. DREIBAND General Counsel
ROBERT CANINO, OBA No. 11782 Regional Attorney
SUZANNE ANDERSON Texas Bar No. 14009470 Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 S. Houston Street, 3rd Floor Dallas Texas 75202
S/Michelle M. Robertson MICHELLE M. ROBERTSON, OBA 14084 Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Oklahoma City Area Office 210 Park Avenue, Suite 1350 Oklahoma City, Oklahoma 73102 Tel No. (405) 231-4363 Fax No. (405) 231-4140 michelle.robertson@eeoc.gov
JURY TRIAL DEMANDED
5

 
 Case 5:04-cv-01078-M Document 15 Filed 10/12/2004 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) UNITED STATES EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

(2) TERRY FITZGERALD,

)

(3) SUSAN SOLIS, and

)

(4) ALISHA WILLIAMS,

)

)

Plaintiff Intervenors,

)

)

vs.

)

)

(1) WESTPHALEN INSURANCE SERVICES, INC., and )

(2) GARY WESTPHALEN, Individually,

)

)

Defendants.

)

No. CIV-04-1078

PLAINTIFF INTERVENORS’ COMPLAINT

COME NOW Terry FITZGERALD, Susan SOLIS, and Alisha WILLIAMS (hereafter

collectively “Plaintiff Intervenors”) for their causes of action in the above-styled and numbered

cause, and respectfully show the Court as follows:

GENERAL STATEMENT OF THE CASE

1. This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq., and Oklahoma law seeking redress for unlawful, discriminatory employment

practices on the basis of sex, including the creation of a sexually hostile work environment,

retaliation, and wrongful and constructive discharge, and, furthermore, to obtain relief for

intentionally tortious and discriminatory conduct as provided under 42 U.S.C. Section 1981a.

2. Plaintiff Intervenors were each previously employed by the named Defendants, and,

throughout their employment therewith, allege that Defendants engaged in conduct in violation of

Title VII, 42 U.S.C. § 2000e-2(a)(1), to wit, that Defendants, specifically Defendant Gary

Case 5:04-cv-01078-M Document 15 Filed 10/12/2004 Page 2 of 10
Westphalen, discriminated against Plaintiff Intervenors based upon sex by subjecting them to a sexually hostile work environment, including, but not limited to, suggestive, lewd and offensive comments, generally regarding Plaintiff Intervenors’ gender and/or breasts, and offensive and unwelcome touching, generally on or near Plaintiff Intervenors’ breasts, shoulders, necklines and legs. The discriminatory conduct continued over Plaintiff Intervenors’ objections until they were retaliatorily and/or constructively discharged.
3. Plaintiff Intervenors subsequently filed charges of discrimination with the United States Equal Employment Opportunity Commission (“EEOC” or “Commission”) alleging the foregoing violations of Title VII. Upon completion of its investigation, the Commission issued its determination finding reasonable cause to believe that said violations occurred. The Commission’s “Determination” letters are attached hereto for the Court’s reference.
JURISDICTION AND VENUE 4. Jurisdiction and venue before this Court are proper pursuant to 28 U.S.C. §§ 1331, 1337, 1343, 1345, 1367 and 1391. This action is authorized and instituted pursuant to Section 706 of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. Section 2000e-5. The unlawful employment practices complained of herein, including the negligent and intentionally tortious conduct associated therewith, at all times were and are now being committed within the jurisdiction of the United States District Court for the Western District of Oklahoma. All conditions precedent to the institution of this action have been met.
PARTIES 5. Plaintiff EEOC is an agency of the United States which is charged with the administration, interpretation and enforcement of Title VII. In that capacity, and pursuant to 42
2

Case 5:04-cv-01078-M Document 15 Filed 10/12/2004 Page 3 of 10
U.S.C. § 2000e-5(f)(1) and (3), the EEOC filed a Complaint on September 1, 2004 in the United States District Court for the Western District of Oklahoma against Defendant Westphalen Insurance Services, Inc d/b/a Westphalen Insurance.
6. Defendant Westphalen Insurance Services, Inc. d/b/a Westphalen Insurance is a wholesale insurance brokerage company which is and was at all times pertinent to the filing of this Complaint an employer engaged in an industry affecting commerce within the meaning of Title VII, 42 U.S.C. § 2000e(b), (g) and (h). At all times relevant, Westphalen has been and is now doing business in the City of Oklahoma City, State of Oklahoma, and has had at least fifteen employees.
7. Defendant Gary Westphalen is the owner and operator of the Defendant corporation Westphalen Insurance Services, and, in that capacity, supervises, manages, operates and controls said corporation. Defendant Gary Westphalen is responsible for creating and implementing the company’s internal policies and procedures, including, but not limited to, the company’s hiring and termination policies and the company’s workplace discrimination policies. At all times relevant, Defendant Gary Westphalen subjected the Plaintiff Intervenors to the sexually discriminatory employment practices alleged herein. Defendants Gary Westphalen and Westphalen Insurance Services, Inc. d/b/a Westphalen Insurance may hereafter be collectively referred to as “Westphalen” or “Defendants.”
8. Plaintiff Intervenors Terry Fitzgerald, Susan Solis and Alisha Williams are each former employees of Westphalen. As the persons on whose behalf the Commission filed suit against Defendants, Plaintiff Intervenors have an unconditional right to intervene in this case. 42 U.S.C. § 706(f)(1).
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First Cause of Action Discrimination in Employment 9. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 10. At all times relevant, Defendants have engaged in unlawful employment practices in violation of Title VII by subjecting Plaintiff Intervenors to sexually suggestive, lewd and offensive comments, and by further subjecting Plaintiff Intervenors to sexually offensive and unwelcome touching. 11. Said unlawful employment practices were intentional, and committed with malice and/or with reckless indifference to the rights of the Plaintiff Intervenors. 12. The effect of Defendants’ discriminatory conduct has been to deprive the Plaintiff Intervenors of equal employment opportunities because of their sex, entitling Plaintiff Intervenors to the relief set forth below.
Second Cause of Action Sexually Hostile Working Environment 13. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 14. At all times relevant, Defendants have engaged in unlawful employment practices in violation of Title VII by creating, permitting and condoning a severe and pervasive sexually hostile work environment in which Plaintiff Intervenors were subjected to and/or witnessed Defendants’ sexually suggestive, lewd and offensive comments, and/or Defendants’ sexually offensive and unwelcome touching. 15. Defendants failed to remedy the hostile work environment despite notice of same.
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16. The effect of Defendants’ discriminatory conduct has been to deprive the Plaintiff Intervenors of equal employment opportunities because of their sex, entitling Plaintiff Intervenors to the relief set forth below.
Third Cause of Action Retaliation and Discharge 17. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 18. Defendants retaliated against Plaintiff Intervenors for engaging in protected activity by harassing them, including but not limited to, eliminating workplace duties and responsibilities, and then terminating them in violation of Title VII. 19. The effect of Defendants’ discriminatory conduct has been to deprive the Plaintiff Intervenors of equal employment opportunities because of their sex, entitling Plaintiff Intervenors to the relief set forth below.
Fourth Cause of Action Failure to Post Discrimination Notice 20. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 21. At all times relevant, Defendants violated Title VII by failing to post the required notice of unlawful discrimination practices and notice of procedures by which to make claims thereon as set forth at 42 U.S.C. § 2000e-10. 22. The effect of Defendants’ failure to post the required notice has been to deprive the Plaintiff Intervenors of equal employment opportunities because of their sex, entitling Plaintiff Intervenors to the relief set forth below.
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Fifth Cause of Action Discrimination Based on Pregnancy 23. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 24. Title VII’s proscriptions of discrimination “on the basis of sex” include employment discrimination on the basis of pregnancy, childbirth, or related medical conditions, providing that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes....” 42 U.S.C. § 2000e(k). 25. Defendants subjected Plaintiff Intervenor Alisha Williams (“Williams”) to sexual discrimination on the basis of pregnancy, childbirth, or related medical conditions, to wit, after becoming pregnant and advising Defendants of same, Williams’ income was substantially reduced by changing her monthly salary to an hourly rate; she was initially denied insurance benefits under Westphalen’s group health and disability policy when she sought leave from work in accordance with the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; and she was subsequently terminated when complications from her pregnancy required periodic leave from work. 26. The effect of Defendants’ discriminatory conduct has been to deprive Plaintiff Intervenor Williams of equal employment opportunities because of her sex, entitling her to the relief set forth below.
Sixth Cause of Action Violation of Oklahoma Law: Hostile Work Environment and Sexual Discrimination 27. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint.
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28. By subjecting Plaintiff Intervenors to a sexually hostile and discriminatory working environment as set forth above, Defendants violated Oklahoma law and public policy.
29. The effect of Defendants’ discriminatory conduct has been to deprive the Plaintiff Intervenors of equal employment opportunities because of their sex, entitling Plaintiff Intervenors to the relief set forth below.
Seventh Cause of Action Violation of Oklahoma Law: Retaliatory and/or Constructive Discharge 30. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 31. By subjecting Plaintiff Intervenors to retaliation and terminating them for engaging in protected conduct as set forth above, Defendants violated Oklahoma law and public policy. 32. The effect of Defendants’ discriminatory and retaliatory conduct has been to deprive the Plaintiff Intervenors of equal employment opportunities because of their sex, entitling Plaintiff Intervenors to the relief set forth herein below.
Eighth Cause of Action Violation of Oklahoma Law: Assault and Battery 33. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 34. Defendant Gary Westphalen touched Plaintiff Intervenors on or about their breasts, shoulders, necklines, and/or legs without their consent to same, thereby committing an assault and battery. 35. As a result, Plaintiff Intervenors are entitled to the relief set forth below.
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Ninth Cause of Action Violation of Oklahoma Law: Intentional Infliction of Emotional Distress 36. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 37. The foregoing unlawful employment practices were intentional, and/or committed with malice and/or with reckless indifference to the rights of the Plaintiff Intervenors. 38. The foregoing unlawful employment practices, and Defendants’ knowledge of and failure to remedy same, constituted extreme and outrageous conduct which caused severe emotional distress to Plaintiff Intervenors. 39. As a result, Plaintiff Intervenors are entitled to the relief set forth below.
Tenth Cause of Action Violation of Oklahoma Law: Negligence 40. Plaintiff Intervenors restate and incorporate herein by reference the preceding and subsequent allegations of this Complaint. 41. The Defendant corporation was negligent in its hiring, training, supervision, and retention of Defendant Gary Westphalen. 42. The named Defendants were further negligent in their failure to provide their employees with appropriate notices of their rights regarding employment discrimination. 43. As a result, Plaintiff Intervenors are entitled to the relief set forth below. WHEREFORE, the Plaintiff Intervenors respectfully request the following relief: A. An Order granting a permanent injunction enjoining Defendants and their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of sex;
8

Case 5:04-cv-01078-M Document 15 Filed 10/12/2004 Page 9 of 10
B. An Order requiring Defendants to institute and carry out policies, practices and programs that provide equal employment opportunities for present and future employees, and which eradicate the effects of the Defendants’ past unlawful employment practices;
C. An Order requiring Defendants to make whole the Plaintiff Intervenors by providing the following remedies in amounts to be determined at trial: back pay, with prejudgment interest; out-of-pocket losses and other affirmative relief necessary to eradicate the effects of Defendants’ unlawful employment practices; past and future pecuniary compensatory damages; past and future non-pecuniary compensatory damages, including but not limited to damages for emotional pain and suffering, humiliation, stress, and anxiety; front pay in lieu of reinstatement; and punitive damages;
D. Plaintiff Intervenors further seek the costs of this action and reasonable attorneys fees thereby incurred; and
E. Such other legal and/or equitable relief as the Court deems appropriate. Respectfully Submitted, s/ Raphael T. Glapion Edward L. White, OBA #16549 Raphael T. Glapion, OBA #19466 ATTORNEYS FOR PLAINTIFFS EDWARD L. WHITE, P.C. 50 Penn Place, Suite 440 Oklahoma City, OK 73118-1803 Phone: 405/810-8188 Facsimile: 405/842-0336 Email: rtg@edwhitelaw.com
JURY TRIAL DEMANDED ATTORNEY’S LIEN CLAIMED
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Case 5:04-cv-01078-M Document 15 Filed 10/12/2004 Page 10 of 10
Certificate of Service I hereby certify that on October 12, 2004, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Eric S. Dreiband, General Counsel; Robert Canino, OBA No. 11782, Regional Attorney; Suzanne Anderson, TX Bar No. 14009470, Supervisory Trial Attorney, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, TX 75202 – And – Michelle M. Robertson, OBA No. 14084 Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Oklahoma City Office Area 210 Park Avenue, Suite 1350 Oklahoma City, OK 73102 – And – Curtis L. Smith, OBA No. 8323 CHUBBUCK SMITH RHODES STEWARD & ELDER, P.L.L.C. 119 North Robinson Avenue, Suite 820 Oklahoma City, OK 73102 Attorneys for Defendant Westphalen Insurance Services, Inc. d/b/a Westphalen Insurance
s/ Raphael T. Glapion
10

 
 U.S. Equal Employment Opportunity Com’n v. Westphalen..., Not Reported in...

2005 WL 1384616 Only the Westlaw citation is currently available.
United States District Court, W.D. Oklahoma.
(1) UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff,
(2) Terry FITZGERALD, (3) Susan Solis, and (4) Alisha Williams, Plaintiff Intervenors, v.
(1) WESTPHALEN INSURANCE SERVICES, INC., and (2) Gary Westphalen, Individually,
Defendants.
No. CIV-04-1078-M. | June 8, 2005.
Attorneys and Law Firms
Michelle M. Robertson, Equal Employment Opportunity Commission, Oklahoma City, OK, for Plaintiff.
Edward L. White, Raphael T. Glapion, Edward L. White PC, Oklahoma City, OK, for Plaintiff Intervenors.
Curtis L. Smith, Kelly L. Whitworth, Susan F. Kane, Chubbuck Smith Rhodes Stewart & Elder, Oklahoma City, OK, for Defendants.
Opinion
ORDER
LAGRANGE, J.
*1 Before the Court is defendants Westphalen Insurance Services, Inc.’s and Gary Westphalen’s Motion to Dismiss Claims of Plaintiff Intervenors for Failure to State a Claim Upon Which Relief Can Be Granted and Brief in Support. Defendants move this Court for an Order dismissing Plaintiff Intervenors’ claims based on Title VII violations and Oklahoma employment practices against defendant Gary Westphalen, individually, and claims against defendant Westphalen Insurance Services, Inc. (“Corporation”) under Oklahoma law based on intentional tort violations claimed to have been committed by Mr. Westphalen. Defendants assert such claims fail to state a claim upon which relief can be granted. Fed.R.Civ.P.

12(b)(6).
The standard of review for motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is well established. Courts must accept as true all well-pleaded facts and view those facts in the light most favorable to the non-moving party. Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Plaintiff Intervenors admit in their response that defendant Gary Westphalen, individually, is not a proper Title VII or state law discrimination defendant. (See Plaintiff Intervenors Response to Defendants’ Motion to Dismiss Under Rule 12(B)(6), pp. 2-3, 7.) As personal capacity suits against individual supervisors are not appropriate under Title VII, Defendants’ Motion to Dismiss regarding Gary Westphalen, individually, is granted as to claims 1-7 and claim 10 of the Plaintiff Intervenors’ Complaint. See Haynes v. Williams, 88 F.3d 898, 901 (10th Cir.1996).
Defendants next move for dismissal of Plaintiff Intervenors’ eighth and ninth causes of action-assault and battery and intentional infliction of emotional distress, respectively-against defendant Corporation on the grounds that under Oklahoma law it cannot be held vicariously liable for the intentional torts claimed to have been committed by its employee Mr. Westphalen, as the alleged conduct cannot be viewed to further the employer’s interest. The common-law doctrine of respondeat superior makes an employer vicariously liable for the acts or omissions of an employee acting within the scope of his employment. If the employee’s offending conduct may be viewed as willful, an employer cannot be held vicariously liable unless its employee’s act is found to have been “incidental to and in furtherance of” its business. Except in cases where only one reasonable conclusion can be drawn from the facts, the question whether an employee has acted within the scope of employment at any given time is generally one for the trier of fact.
Baker v. Saint Francis Hosp., 2005 WL 1244580, *2 (Okla.) (footnotes omitted).
1

U.S. Equal Employment Opportunity Com’n v. Westphalen..., Not Reported in...

*2 The Court is cognizant from the identity of names and from the Plaintiff Intervenor’s assertions of the various potential relationships between the defendants, and, therefore, the existence of factual questions not only regarding that relationship, but also as to scope of employment and the nature of the alleged improper acts. The existence of these factual questions, therefore, precludes dismissing the state law claims against defendant Corporation.
THEREFORE, Defendants’ Motion to Dismiss Claims of Plaintiff Intervenors for Failure to State a Claim Upon Which Relief Can Be Granted and Brief in Support (Dkt. No. 21) is GRANTED in part and DENIED in part.

Defendants’ Motion as to Gary Westphalen, individually, is GRANTED as to Causes of Action numbered One through Seven (1-7) and Ten (10) of the Plaintiff Intervenor’s Complaint. Defendants’ Motion is DENIED as to Plaintiff Intervenors’ claims against Westphalen Insurance Services, Inc. contained in Causes of Action numbered Eight (8) and Nine (9) of Plaintiff Intervenor’s Complaint.
IT IS SO ORDERED.
	  

2

 
 Case 5:04-cv-01078-M Document 52 Filed 10/24/2005 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) UNITED STATES EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

(2) TERRY FITZGERALD,

)

(3) SUSAN SOLIS, and

)

(4) ALISHA WILLIAMS,

)

Plaintiff Intervenors,

)

)

vs.

)

)

(1) WESTPHALEN INSURANCE SERVICES, INC., and )

(2) GARY WESTPHALEN, Individually,

)

)

Defendants.

)

Case No. CIV-04-1078 M

ORDER Before the Court is defendants’ Application for Leave to File Reply Brief to Plaintiff Intervenors’ Response to Defendants’ Motion for Summary Judgment, filed October 21, 2005. Upon review of defendants’ application, and for good cause shown, the Court GRANTS defendants’ Application for Leave to File Reply Brief to Plaintiff Intervenors’ Response to Defendants’ Motion for Summary Judgment [docket no. 51]; defendants shall file their reply brief on or before October 28, 2005. IT IS SO ORDERED this 24th day of October, 2005.

 
 Case 5:04-cv-01078-M Document 69 Filed 01/31/2006 Page 1 of 1
04-1078-M
Steven L. Barghols X
January 30, 2006
X
X X
X
5.6 hours
January 31, 2006
Steven L. Barghols
OBA #000511

 
 Case 5:04-cv-01078-M Document 70 Filed 01/31/2006 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,
Plaintiff(s),
v.
WESTPHALEN INSURANCE SERVICES INC., et al.,
Defendant(s).

)

)

)

)

)

)

Case No. CIV-04-1078-M

)

)

)

)

)

ADMINISTRATIVE CLOSING ORDER

On the representation from counsel for the parties, that the parties have reached a

settlement and compromise, it is ordered that the Clerk administratively terminate this action in

his records without prejudice to the rights of the parties to reopen the proceeding for good cause

shown, for the entry of any stipulation or order, or for any other purpose required to obtain a

final determination of the litigation.

If the parties have not reopened this case within 30 days of this date for the purpose of

dismissal pursuant to the settlement compromise, Plaintiff's action shall be deemed to be

dismissed with prejudice.

IT IS SO ORDERED this 31st day of January, 2006.

 
 Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

(2) TERRY FITZGERALD,

)

(3) SUSAN SOLIS,

)

(4) ALISHA WILLIAMS,

)

)

Plaintiff Intervenors,

)

v.

)

)

(1) WESTPHALEN INSURANCE

)

SERVICES, INC. d/b/a

)

WESTPHALEN INSURANCE, and

)

GARY WESTPHALEN, individually,

)

)

Defendants.

)

)

CASE NO. CIV-04-1078-M

CONSENT DECREE

THIS CONSENT DECREE is made and entered into by and between the Equal Employment

Opportunity Commission (“EEOC”), Terry Fitzgerald, Susan Solis Glapion and Alisha Williams and

Westphalen Insurances Services, Inc., (“Westphalen Insurance”) in the United States District Court

for the Western District of Oklahoma, with regard to the EEOC’s Complaint filed on September 1,

2004 (Complaint), in Civil Action No. CIV-04-1078-M. The Complaint is based upon Charges of

Discrimination filed by Terry Fitzgerald, Susan Solis Glapion and Alisha Williams, against the

Defendant employer.

The above-referenced Complaint alleges that the Defendant Westphalen Insurance violated

Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, by subjecting

the Charging Parties to sexual harassment, retaliation and constructive discharge. The Defendant

employer denies all of the allegations made in the Complaint filed by EEOC and all the allegations

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 2 of 11

contained in the complaint filed by Plaintiff Intervenors. The Charging Parties intervened in this action, as permitted by law.
The EEOC, Plaintiff Intervenors and Defendant Westphalen Insurance agree to compromise and settle the differences embodied in the Complaint and intend that the terms and conditions of the compromise and settlement be set forth in this Consent Decree ("Consent Decree").
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the sufficiency of which is hereby acknowledged, the parties agree as follows, the Court finds appropriate and therefore, it is ORDERED, ADJUDGED AND DECREED that:
1. This Consent Decree resolves all issues raised in EEOC Charge Nos. 311 2003 02020, 311 2003 02029 and 311 2003 01658. This Decree further resolves all issues raised in the Complaint filed by the EEOC in this civil action and the Complaints filed by the Charging Parties. The EEOC, Charging Parties waive further claims and/or litigation on all issues raised in the abovereferenced Charges and Complaint. The EEOC does not waive processing or litigating charges other than the above-referenced Charge.
2. The parties agree that this Consent Decree does not constitute an admission by Westphalen Insurance of any violation of Title VII or any state law claims alleged by Plaintiff Intervenors. The Defendant Westphalen Insurance denies any violation of local, state or federal law, common or statutory, including but not limited to, Title VII of the Civil Rights Act of 1964, as amended or Title I of the Civil Rights Act of 1991.
3. Defendant agrees that it shall conduct all employment practices in a manner which does not subject any employee to discrimination as prohibited by Title VII of the Civil Rights Act of 1964. Defendant further agrees that there shall be no retaliation against any employee because

CONSENT DECREE

2

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 3 of 11

that person has opposed any practice made unlawful under Title VII, or has filed a charge of discrimination, or has given testimony, assistance, or has participated in any manner in any investigation, proceeding or hearing under Title VII.
4. Defendant agrees to post the Notice appended hereto as Attachment "A" on the employee bulletin board at all of Defendant’s work sites within ten (l0) days after the entry of the Consent Decree. Defendant will report to the EEOC that it has complied with this requirement within 14 days after posting the notice. The notice shall remain posted during the term of the Consent Decree.
5. The Defendant agrees to immediately implement policies regarding sexual harassment and retaliation as prohibited by Title VII including, if not now existing, the implementation and notice of a complaint procedure for employees to notify Defendant of any alleged complaints of discrimination.
6. For each year that the Consent Decree is in effect, Defendant agrees to conduct training for all employees, including management employees, advising them of the requirements and prohibitions of the federal anti discrimination laws with a special emphasis on sexual harassment and retaliation. The training will inform the employees of the complaint procedure for individuals who believe they have experienced discrimination. The training will also advise the employees of the consequences of violating the federal anti-discrimination laws. The training shall be at least two (2) hours in duration. No less than 10 days before the training is conducted, Defendant agrees to give written notice to the EEOC as to the date and location of the training, the name and qualifications of the person providing the training and the substance of the training. All materials used in conjunction with the training shall be forwarded to the EEOC. Within 20 days following the

CONSENT DECREE

3

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 4 of 11

training, Defendant shall submit to the EEOC confirmation that the training was conducted, and a list of attendees, and a copy of all materials used in conjunction with the training.
7. No less than 30 days after the training is conducted, Defendant agrees to give written notice to the EEOC as to the date and location of the training, the name of the person providing the training and the substance of the training.
8. During the effective period of this Decree, Defendant shall, every six (6) months, provide written notification to the EEOC’s Regional Attorney in its St. Louis District Office of any internal complaint of sexual harassment, made by any employee, including the name(s) of the employee(s), a description of the investigation of the complaint(s), the finding of the investigation and a description of action taken, or resolution of the complaint(s). In the event there are no complaints of sexual harassment, made by any employees during any six (6) month reporting period, Defendant shall provide written notification to the EEOC’s Regional Attorney in its St. Louis District Office that no such complaints have been made.
9. Defendant agrees to remove from all personnel files of the Charging Parties, all documents, entries and references relating to: the facts and circumstances which led to the filing of the charges of discrimination; the charge itself; and the complaint filed by the EEOC in federal court based upon the charges. Defendant shall, within ten (10) days of the entry of this Decree, provide each Charging Party with a letter of reference containing name, positions held and dates of employment, and which states that each Charging Party voluntarily resigned her position with Defendant. Defendant agrees that the same information and only that information will be provided in response to any employment inquiry regarding Charging Parties.
10. Defendant agrees to paycompensatory relief to the Charging Parties for all claims the

CONSENT DECREE

4

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 5 of 11

total sum of $65,000.00, inclusive of attorneys fees and costs. 11. The payment referenced in paragraph 10, above, shall be made l0 days after the date
of entry of the Consent Decree, by cashier's check made payable to the Charging Parties and their counsel. The check shall be sent by certified mail, return receipt requested or by hand delivery to Charging Parties attorney.
12. Defendant agrees to report to the EEOC within l4 days of entry of this Consent Decree, regarding its compliance with the agreements set forth in paragraphs 2 through 10 above.
13. All reports to the EEOC required by the Consent Decree shall be sent to Michelle M. Robertson, Sr. Trial Attorney, EEOC, 210 Park Avenue, Suite 1350, Oklahoma City, Oklahoma 73102.
14. If Defendant, Westphalen Insurance, fails to tender payment or otherwise fails to timely comply with the terms of paragraphs 10-11 above, Defendant Westphalen Insurance, shall:
a. Pay interest at the rate calculated pursuant to 26 U.S.C. Section 6621(b) on any untimely or unpaid amounts; and
b. Bear any additional costs incurred by the EEOC caused by the noncompliance or delay of the Defendant.
15. Neither the EEOC, Charging Parties, nor Defendant Westphalen Insurance, shall contest the validity of this Consent Decree nor the jurisdiction of the federal district court to enforce this Consent Decree and its terms or the right of either party to the Consent Decree to bring an enforcement action upon breach of any term of this Consent Decree by either such party. Nothing in this Decree shall be construed to preclude the EEOC from enforcing this Decree in the event that Defendant Westphalen Insurance, fails to perform the promises and representations contained herein.

CONSENT DECREE

5

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 6 of 11

The EEOC shall be authorized to seek compliance with the Consent Decree through civil action in

the United States District Court.

16. The parties to this Consent Decree agree to bear their own costs and attorney’s fees

associated with the above-referenced Complaint.

17. The term of this Decree shall be for three (3) years from the effective date. The

Court shall retain jurisdiction to enforce the terms of this Decree until the expiration of the term of

the Consent Decree.

SO ORDERED, ADJUDGED AND DECREED this

day of

, 2006.

JUDGE VICKI MILES-LAGRANGE U.S. DISTRICT COURT JUDGE

APPROVED FOR ENTRY:

FOR PLAINTIFF U.S. E.E.O.C.:

ROBERT JOHNSON Regional Attorney St. Louis District Office

BARBARA A. SEELY Supervisory Trial Attorney St. Louis District Office

s/Michelle M. Robertson MICHELLE M. ROBERTSON, OBA #14084 Sr. Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

CONSENT DECREE

6

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 7 of 11
Area Office for the State of Oklahoma 210 Park Avenue, Suite 1350 Oklahoma City, Oklahoma 73102 Tel No. 405-231-4363 Fax No. 405-231-4340
FOR PLAINTIFF INTERVENOR:
s/Raphael T. Glapion *I certify that I have the signed original of this document,
which is available for inspection at any time by the Court or a party to this action.
Edward L. White Raphael T. Glapion Attorneys at Law 13924B Quail Pointe Dr. Oklahoma City, OK 73134 Tel. No. 405-810-8188 Fax. No. 405-842-0336 ed@edwhitelaw.com rtg@edwhitelaw.com
FOR DEFENDANT Westphalen Insurance:
s/Kelly Whitworth *I certify that I have the signed original of this document,
which is available for inspection at any time by the Court or a party to this action.
Curtis Smith Kelly Whitworth Susan Kane Smith, Rhodes, Stewart, & Elder 119 N. Robinson, Suite 820 Oklahoma City, OK 73102 Tel. No. (405) 236-8282 Fax No. (405) 236-2828

CONSENT DECREE

7

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 8 of 11
ATTACHMENT “A”

CONSENT DECREE

8

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 9 of 11

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Oklahoma Area Office

210 Park Avenue, Suite 1350 Oklahoma City, OK 73102 (405) 231-4911 TDD (405) 231-5745 FAX (405) 231-4340

NOTICE TO ALL EMPLOYEES
This NOTICE is being posted pursuant to a Consent Decree entered in Federal Court between Westphalen Insurance Services, Inc. and the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC). This NOTICE will be conspicuously posted for a period of three (3) years at this facility and in all places where employment notices are posted. It must not be altered, defaced, or covered by any other material.
POLICY: Discrimination of any kind can and often will detract from employees’ job performance, discourage employees from remaining on the job, keep employees from advancing in their careers and lowers overall employee morale and productivity. It is the policy of Westphalen Insurance Services, Inc. that sexual harassment and retaliation of any kind as prohibited by federal anti discrimination law is unacceptable conduct and will not be condoned.
PURPOSE: It is the purpose of this policy to reaffirm and amplify the position of Title VII of the Civil Rights Act of 1964, as amended, and the Equal Employment Opportunity Commission’s guidelines on sexual harassment and retaliation and to reiterate Westphalen Insurance Services, Inc.’s policy on discrimination.
SCOPE: This policy extends to all employees of Westphalen Insurance Services, Inc. both management, non-management, and temporary/probationary.
DEFINITIONS: Sexual harassment has been defined as follows: Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. Sexual harassment is a form of misconduct that undermines the integrity of the employment relationship. No employee, either male or female, should be subjected to unsolicited and unwelcome sexual conduct, either verbal or physical.
Examples of behavior that may constitute sexual harassment include but are not limited to the following:
C Hugging, grabbing or any type of unnecessary touching of another person. C Making unwelcome sexual advances. C Foul or obscene language of a sexual nature, including jokes. C Requests for sexual favors whether in exchange for benefits or otherwise.

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 10 of 11

Title VII prohibits retaliation because allowing such conduct would have a chilling effect upon the willingness of individuals to speak out against employment discrimination, to participate in an internal investigation or to participate in the EEOC process. Retaliation has been defined as taking adverse action against a person who has:

C Opposed any practice made unlawful under Title VII C Has filed a charge of discrimination C Has given testimony, assistance, or has participated in any manner in any
investigation, proceeding or hearing under Title VII.

Examples of adverse action include but are not limited to the following: Firing a person, denial of a promotion, refusal to hire, denial of job benefits, demotion, suspension, discharge, reprimands, negative evaluations, harassment, negative job references and limiting access to other privileges allowed all employees.

RESPONSIBILITY: Each manager and supervisor has a responsibility to maintain a workplace free of retaliation. Each level of management is responsible for ensuring that all personnel policies, procedure, and activities are in full compliance with applicable federal, state, and local equal employment laws, statutes, rules, and regulations regarding discrimination and retaliation. Employees are expected to read, understand, and follow Westphalen Insurance Services, Inc.’s policies against discrimination.

REPORTING PROCEDURES: Any employee who believes that he or she has been subjected to

sexual harassment or retaliation is expected to report the alleged act as soon as possible to either that

person’s immediate supervisor, any supervisor or manager with Westphalen Insurance Services, Inc.

or to the Human Resources Department. The Human Resources Department may be contacted at

(address)

or by telephone at

. Supervisors and mangers who are informed of an alleged incident of discrimination

must immediately notify the Human Resources Department.

A person either alternatively, or in addition to reporting such an allegation to company officials, may contact the U.S. Equal Employment Opportunity Commission for the purposes of filing a charge of employment discrimination. The address and telephone number of the U.S. EEOC office is 210 Park Avenue, Suite 1350, Oklahoma City, OK 73102; (405) 231-4911. Information about your rights and how to file a charge is available on the Internet at www.eeoc.gov.

INVESTIGATION OF COMPLAINTS: A complete investigation of each complaint will be undertaken immediately by the Human Resources Department. The investigation may include interview of all employees and supervisors at the facility, the inspection of documents, including personnel records, and full inspection of the premises.

PUNISHMENT FOR VIOLATION: Employees engaged in sexual harassment and/or retaliation as prohibited by Title VII can expect serious disciplinary action. After appropriate investigation, any employee, whether management or non-management, who has been found to have discriminated

Case 5:04-cv-01078-M Document 71-2 Filed 02/13/2006 Page 11 of 11

against another employee will be subject to appropriate sanctions, depending on the circumstances, from a written warning in his or her personnel file up to and including termination of employment.

RETALIATION: There shall be no retaliation against any employee because that person has opposed what they believe to be unlawful employment practices; or has filed a charge of discrimination, or has given testimony, assistance, or has participated in any manner in any investigation, proceeding or hearing under Title VII of the Civil Rights Act of 1964. Westphalen Insurance Services, Inc. will not punish you for reporting discrimination simply because you have made a complaint under the above guidelines.

PROTECTION OF PRIVACY: The question of whether a particular action or incident constitutes gender discrimination requires a determination based on all available facts. Westphalen Insurance Services, Inc. will therefore make a concerted effort to protect the privacy of all personnel. Confidential information will be shared on a need-to-know basis to complete the investigation and to deal appropriately with the situation.

EXCEPTIONS: There are no exceptions to this policy.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE REMOVED OR DEFACED BY ANYONE. THIS NOTICE WILL BE POSTED FOR A PERIOD OF THREE YEARS.

Signed this

day of

,

.

__________ Date

_______________________________________ Westphalen Insurance Services, Inc. Representative

__________ Date

_______________________________________ Don Stevens, Area Director Equal Employment Opportunity Commission

 
 Case 5:04-cv-01078-M Document 72 Filed 02/13/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) UNITED STATES EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

(2) TERRY FITZGERALD,

)

(3) SUSAN SOLIS, and

)

(4) ALISHA WILLIAMS,

)

Plaintiff Intervenors,

)

)

vs.

)

)

(1) WESTPHALEN INSURANCE SERVICES, INC., and )

(2) GARY WESTPHALEN, Individually,

)

)

Defendants.

)

Case No. CIV-04-1078 M

JOINT STIPULATION OF DISMISSAL WITH PREJUDICE
COME NOW Plaintiff Intervenors, Terry Fitzgerald, Susan Solis Glapion, and Alisha
Williams, and Defendants Gary Westphalen and Westphalen Insurance Services, Inc., pursuant to
Rule 41(a)(1), and represent that the parties have reached a full settlement and final compromise of
the claims of this action and represent, and hereby stipulate to the dismissal with prejudice of any
and all claims Plaintiff Intervenors may have against Defendants, with each party to bear their own
attorneys’ fees and costs.
s/Raphael T. Glapion
(Signed copy of document bearing signature of Plaintiff Intervenors’ Attorney is being maintained in the office of Filing Attorney)
Edward L. White Raphael T. Glapion EDWARD L. WHITE, P.C. 13924B Quail Pointe Dr. Oklahoma City, Oklahoma 73134 ATTORNEYS FOR PLAINTIFF INTERVENORS

Case 5:04-cv-01078-M Document 72 Filed 02/13/2006 Page 2 of 3 and s/Kelly L. Whitworth Curtis L. Smith, OBA #8323 Kelly L. Whitworth, OBA #19971 Susan F. Kane, OBA #19455 SMITH RHODES STEWART & ELDER, P.L.L.C. 119 N. Robinson Avenue, Suite 820 Oklahoma City, Oklahoma 73102 Telephone: 405/236-8282 Facsimile: 405/236-2828 ATTORNEYS FOR DEFENDANTS
-2-

Case 5:04-cv-01078-M Document 72 Filed 02/13/2006 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on February 13, 2006, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:
Michelle M. Robertson, Sr. Trial Attorney, Equal Employment Opportunity Commission 210 Park Avenue, Suite 1350 Oklahoma City, Oklahoma, 73102 and Suzanne M. Anderson Supervisory Trial Attorney Equal Employment Opportunity Commission Dallas District Office 207 South Houston, 3rd Floor Dallas, Texas 75202 ATTORNEYS FOR PLAINTIFF
Edward L. White Raphael T. Glapion EDWARD L. WHITE, P.C. 13924B Quail Pointe Dr. Oklahoma City, Oklahoma 73134 ATTORNEYS FOR PLAINTIFF INTERVENORS
s/Kelly L. Whitworth
-3-

 
 Case 5:04-cv-01078-M Document 73 Filed 02/15/2006 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) UNITED STATES EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

(2) TERRY FITZGERALD,

)

(3) SUSAN SOLIS, and

)

(4) ALISHA WILLIAMS,

)

)

Plaintiff Intervenors,

)

)

vs.

)

)

(1) WESTPHALEN INSURANCE SERVICES, INC., and )

(2) GARY WESTPHALEN, Individually,

)

)

Defendants.

)

Case No. CIV-04-1078 M

ORDER

Before the Court is plaintiff EEOC’s Motion to Vacate the Administrative Closing Order and

for Entry of Consent Decree. Upon review of the motion, the Court hereby GRANTS plaintiff

EEOC’s Motion to Vacate the Administrative Closing Order and for Entry of Consent Decree

[docket no. 71].

IT IS SO ORDERED this 15th day of February, 2006.

 
 Case 5:04-cv-01078-M Document 74 Filed 02/15/2006 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) UNITED STATES EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

(2) TERRY FITZGERALD,

)

(3) SUSAN SOLIS, and

)

(4) ALISHA WILLIAMS,

)

)

Plaintiff Intervenors,

)

)

vs.

)

)

(1) WESTPHALEN INSURANCE SERVICES, INC., and )

(2) GARY WESTPHALEN, Individually,

)

)

Defendants.

)

Case No. CIV-04-1078 M

ORDER GRANTING DISMISSAL WITH PREJUDICE

On the representation of counsel for Plaintiff Intervenors and Defendants, pursuant to Rule

41(a)(1) of the Federal Rules of Civil Procedure, that all parties have reached a full settlement and

final compromise of the claims of this action, and stipulate to the dismissal with prejudice of any

and all claims Plaintiff Intervenors may have against Defendants, with each party to bear their own

attorneys’ fees and costs, it is ordered that all claims in this action be dismissed with prejudice to

any further action, with each party to bear their own attorneys’ fees.

IT IS SO ORDERED this 15th day of February, 2006.

 
 Case 5:04-cv-01078-M Document 42 Filed 09/29/2005 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES EQUAL

)

EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

TERRY FITZGERALD,

)

SUSAN SOLIS, and

)

ALISHA WILLIAMS,

)

)

Plaintiff Intervenors,

)

)

vs.

)

Case No. CIV-04-1078-M

)

WESTPHALEN INSURANCE

)

SERVICES, INC., and

)

GARY WESTPHALEN, Individually, )

)

Defendants.

)

ORDER

Before the Court is defendants’ Motion for Protective Order, filed August 1, 2005. On

August 16, 2005, plaintiff United States Equal Employment Opportunity Commission (“EEOC”)

filed its response, and on August 18, 2005, plaintiff intervenors filed their response. On August 26,

2005, defendants filed their reply. Based upon the parties’ submissions, the Court makes its

determination.

On August 31, 2004, the EEOC filed the instant action against defendant Westphalen

Insurance Services, Inc. (“Westphalen Insurance”), alleging that Westphalen Insurance violated Title

VII of the Civil Rights Act of 1964 by subjecting Terry Fitzgerald, Susan Solis, and Alisha Williams

to discrimination on the basis of their sex, by subjecting them to a sexually hostile work

environment, and by retaliating against them. On October 12, 2004, the Court granted plaintiff

intervenors leave to intervene in this action, and on October 12, 2004, plaintiff intervenors filed their

Case 5:04-cv-01078-M Document 42 Filed 09/29/2005 Page 2 of 4
complaint against Westphalen Insurance and defendant Gary Westphalen (“Westphalen”), individually, alleging both federal and state law causes of action for sex discrimination, sexually hostile work environment, retaliation, assault and battery, intentional infliction of emotional distress, and negligence.
Defendants now move this Court to issue a protective order restricting the questioning of Westphalen or any other deponent to one attorney for the EEOC and plaintiff intervenors, collectively. Defendants assert that the interests of the EEOC and plaintiff intervenors are identical and that if both the EEOC and plaintiff intervenors are allowed to examine deponents, the depositions will be duplicative and oppressive and will place undue burden and expense on Westphalen and the other deponents. The EEOC and plaintiff intervenors object to defendants’ motion and assert that their interests are not identical and that they will be unfairly prejudiced if they are denied an opportunity to individually question deponents.
Protective orders are governed by Rule 26(c). That rule provides, in pertinent part: Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (2) that the disclosure or discovery may be had only on specified terms and conditions, . . . .
Fed. R. Civ. P. 26(c)(2). The party seeking a protective order must show “good cause” for its request. Id.; Am. Benefit
Life Ins. Co. v. Ille, 87 F.R.D. 540, 543 (W.D. Okla. 1978). “‘Good cause’ within the meaning of
2

Case 5:04-cv-01078-M Document 42 Filed 09/29/2005 Page 3 of 4
Rule 26(c) contemplates a ‘particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.’” Am. Benefit, 87 F.R.D. at 543 (quoting Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)).
Having carefully reviewed the parties’ submissions, the Court finds that defendants have not shown good cause for their request for a protective order. Specifically, the Court finds that the interests of the EEOC and plaintiff intervenors are not identical. While the EEOC and plaintiff intervenors’ claims are based on the same set of facts, the parties have not asserted identical causes of action – the EEOC has asserted claims under Title VII; plaintiff intervenors have asserted both Title VII claims and state law causes of action. Further, the EEOC has sued only Westphalen Insurance, and plaintiff intervenors have sued both Westphalen Insurance and Westphalen. Additionally, the EEOC brings the instant action on behalf of the general public, including plaintiff intervenors, to enforce the law and to eliminate discrimination in the workplace; plaintiff intervenors bring this action to redress alleged violations of their private and personal rights.
The Court further finds that defendants have not provided a particular and specific demonstration of fact justifying the need for a protective order. While defendants have presented examples of objections and statements counsel for the EEOC made during the depositions of plaintiff intervenors, the Court finds that these examples do not provide the requisite good cause justifying a protective order in this case. Finally, the Court finds that any duplication of questions in the depositions does not rise to the level of oppression or undue burden or expense warranting a protective order.1
1The Court is confident that counsel for the EEOC and plaintiff intervenors, as experienced attorneys, will not ask the same questions and will limit any questioning to information that was not discovered through the other counsel’s questioning.
3

Case 5:04-cv-01078-M Document 42 Filed 09/29/2005 Page 4 of 4 Accordingly, the Court DENIES defendants’ Motion for Protective Order [docket no. 29]. IT IS SO ORDERED this 29th day of September, 2005.
4

 
 Case 5:04-cv-01078-M Document 65 Filed 01/18/2006 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES EQUAL

)

EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

TERRY FITZGERALD,

)

SUSAN SOLIS, and

)

ALISHA WILLIAMS,

)

)

Plaintiff Intervenors,

)

)

vs.

)

Case No. CIV-04-1078-M

)

WESTPHALEN INSURANCE

)

SERVICES, INC., and

)

GARY WESTPHALEN, Individually,

)

)

Defendants.

)

ORDER

Before the Court is defendants’ Motion to Enter Proposed Protective Order, filed October

31, 2005. On November 8, 2005, plaintiff United States Equal Employment Opportunity

Commission (“EEOC”) filed its response, and on December 2, 2005, defendants filed their reply.

Based upon the parties’ submissions, the Court makes its determination.

I. Introduction

On August 31, 2004, the EEOC filed the instant action against defendant Westphalen

Insurance Services, Inc. (“Westphalen”) alleging that Westphalen violated Title VII when it

subjected Terry Fitzgerald, Susan Solis, and Alisha Williams to sexual harassment, retaliation, and

constructive discharge. Ms. Fitzgerald, Ms. Solis, and Ms. Williams intervened as plaintiffs and

added Gary Westphalen as a defendant.

The EEOC issued written discovery to Westphalen. Included in this discovery was request

Case 5:04-cv-01078-M Document 65 Filed 01/18/2006 Page 2 of 4
for production no. 2, which sought the production of the complete personnel and payroll files of numerous employees and former employees of Westphalen. Additionally, in request for production no. 25, the EEOC sought production of “all annual reports, profit and loss statements, federal income tax returns and other financial statements for [Westphalen] showing the company’s income, revenues, net worth or assets and liabilities during the year 1999 to present.” Defendants’ counsel advised counsel for the EEOC and plaintiff intervenors that it would be willing to produce the documents requested in request for production nos. 2 and 25 if the EEOC and plaintiff intervenors agreed to maintain the confidentiality of those documents through the provisions of a protective order. The EEOC and defendants, however, could not agree on the provisions of the protective order, and defendants now move this Court to enter their proposed protective order.1 II. Discussion
Having carefully reviewed the parties’ submissions, it appears there are four issues on which the parties cannot reach an agreement: (1) whether all witnesses or only expert witnesses can view the produced materials; (2) whether persons who have access to the produced materials should sign an affidavit regarding said access; (3) whether the EEOC should be required to return to defendants all of the produced materials, including any copies made; and (4) what the scope of the Court’s oversight of the protective order should be.
First, in its proposed protective order, the EEOC allows the documents at issue to be
1In its response, the EEOC asserts that defendants cannot meet their burden of proof to show entitlement to a protective order. Having carefully reviewed the parties’ correspondence attached to defendants’ motion, the Court finds that the parties had previously agreed to the entry of a protective order; they simply could not agree on the terms. Because the parties had previously agreed to a protective order, the Court will not address the EEOC’s belated argument that defendants are not entitled to a protective order. The Court would further note that based upon the types of documents which are the subject of the requests for production, a protective order is warranted.
2

Case 5:04-cv-01078-M Document 65 Filed 01/18/2006 Page 3 of 4
disseminated to all witnesses in connection with preparation for their testimony or for use during the taking of their deposition or testimony at trial. Defendants object to the documents being disseminated to all witnesses and contend that there are no grounds for the dissemination of these documents to lay witnesses and that the dissemination of the documents should be limited to expert witnesses. Having reviewed the parties’ submissions, the Court finds that the dissemination of the documents should be limited to expert witnesses.
Second, in their proposed protective order, defendants require all persons who have access to the documents at issue to execute an affidavit. The EEOC objects to this requirement and contends that it is overly broad and that it does not have the authority to sign an affidavit on behalf of its employees regarding the disposition of the documents. Upon review of the parties’ submissions, the Court finds that all persons who have access to the documents at issue, with the exception of the parties’ attorneys and their staff, should be required to execute an affidavit that the individual is aware of the protective order and has complied with its provisions.
Third, in their proposed protective order, defendants require the return of the original and all copies of the documents at issue at the conclusion of the litigation. The EEOC asserts that once it obtains the documents, they become a part of the official EEOC litigation file, and it is bound by federal regulations to retain said documents. Having carefully reviewed the parties’ submissions, the Court finds that all originals and copies of the documents at issue should be returned to defendants at the conclusion of the litigation, with the exception of those documents that have become a part of the official EEOC litigation file, and those documents shall be retained in accordance with applicable federal regulations.
Finally, the last provision of defendants’ proposed protective order provides:
3

Case 5:04-cv-01078-M Document 65 Filed 01/18/2006 Page 4 of 4
The terms of this Stipulation and Protective Order shall remain fully active until released by written consent of Defendants. The Court shall retain jurisdiction over the parties, this Stipulation and Protective Order, and recipients of confidential documents and materials, for the sole purpose of enforcing this Stipulation and Protective Order and adjudicating claims of breaches thereof and administering damages and other remedies related thereto. The provisions of this Stipulation and Protective Order shall continue to be binding as to the confidential information and/or documents produced pursuant to it. Stipulation and Protective Order Re Confidentiality of Information and Documents at ¶ 12, attached as Exhibit A to defendants’ Motion to Enter Proposed Protective Order. The EEOC objects to this language as overly broad and proposes the following language: “The Court shall retain jurisdiction over this order and may enforce same in accordance with applicable federal law.” Upon review of the parties’ submissions, the Court finds that the EEOC’s proposed language should be used. III. Conclusion Accordingly, the Court GRANTS defendants’ Motion to Enter Proposed Protective Order [docket no. 57], modified as set forth above. IT IS SO ORDERED this 18th day of January, 2006.
4

 
 Case 5:04-cv-01078-M Document 66 Filed 01/18/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES EQUAL

)

EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

TERRY FITZGERALD,

)

SUSAN SOLIS, and

)

ALISHA WILLIAMS,

)

)

Plaintiff Intervenors,

)

)

vs.

)

Case No. CIV-04-1078-M

)

WESTPHALEN INSURANCE

)

SERVICES, INC., and

)

GARY WESTPHALEN, Individually,

)

)

Defendants.

)

PROTECTIVE ORDER

The documents designated as confidential for the purposes of this Protective Order shall be

the personnel files and financial information produced in response to plaintiff EEOC’s requests for

production numbers two and twenty-five (“Protected Materials”).

The Protected Materials shall only be used by plaintiff, plaintiff intervenors, and defendants

in connection with the instant lawsuit and for no other purpose. The Protected Materials or any

copies, prints, negatives, or summaries thereof shall not be given, shown, or otherwise directly or

indirectly disclosed to any entity or person except the parties herein, the parties’ attorneys and their

staff, and any agents, experts, or consultants employed by plaintiff, plaintiff’s attorneys, plaintiff

intervenors, or plaintiff intervenors’ attorneys. The Protected Materials may also be disseminated

to expert witnesses in connection with preparation for their testimony or for use during the taking

of their depositions or testimony at trial and to court reporters in connection with depositions or trial.

Case 5:04-cv-01078-M Document 66 Filed 01/18/2006 Page 2 of 3
All individuals receiving the Protected Materials are bound by this Protective Order. At the conclusion of the work of any experts, consultants, or other persons as described
above, the Protected Materials and all copies, prints, negatives, and summaries thereof shall be returned to the attorneys who retained the expert or consultant or otherwise provided access to the Protected Materials. At the time of such re-delivery, an Affidavit in the form of Exhibit A attached hereto shall be executed by such experts, consultants, or other persons who have had access to the Protected Materials, with the exception of counsel and their staff, stating that they are aware of and agree to be bound by all of the provisions of this Protective Order. Such Affidavit shall be returned to the attorneys who provided access to the Protected Materials and be maintained by them.
At the conclusion of this litigation, whether by settlement or trial, and after the termination of all appeals and the expiration of time for further appeal, plaintiff intervenors’ attorneys shall provide to defendants’ counsel the Protected Materials and all copies, prints, negatives, and summaries thereof and plaintiff EEOC shall provide to defendants’ counsel any Protected Materials that are not a part of the official EEOC litigation file and shall retain and destroy any Protected Materials that are a part of the official EEOC litigation file as required by applicable federal regulations. Plaintiff’s attorneys and plaintiff intervenors’ attorneys shall further provide to defendants’ counsel at such time of re-delivery all affidavits received pursuant to the above paragraph.
No party shall be bound by this Protective Order as to any information that it possessed prior to this action.
Any Protected Materials made a part of or attached as an exhibit to any deposition taken in this action, any deposition testimony containing information from the Protected Materials, and any
2

Case 5:04-cv-01078-M Document 66 Filed 01/18/2006 Page 3 of 3 papers filed with this Court in this action, which include or summarize any deposition transcripts, testimony, or exhibits containing Protected Materials, shall be sealed and protected from disclosure by this Protective Order.
The Court shall retain jurisdiction over this Protective Order and shall enforce same in accordance with applicable federal law.
IT IS SO ORDERED this 18th day of January, 2006.
3

 
 Case: 5:04-cv-1078 As of: 05/27/2017 02:54 PM CDT 1 of 7
CLOSED,ROBERTS,_LDF
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:04−cv−01078−M

Equal Employment Opportunity Commission v. Westphalen Insurance Services Inc Assigned to: Honorable Vicki Miles−LaGrange Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 08/31/2004 Date Terminated: 02/15/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Michelle M Robertson EEOC−OKC Equal Employment Opportunity Commission 215 Dean A McGee Suite 524 Oklahoma City, OK 73102 405−231−4363 Fax: 405−231−45816 Email: michelle.robertson@eeoc.gov ATTORNEY TO BE NOTICED

Suzanne M Anderson EEOC−DALLAS 207 S Houston Ave 3rd Fl Dallas, TX 75202 214−655−3332 Fax: 214−655−3331 Email: suzanne.anderson@eeoc.gov ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Alisha Williams TERMINATED: 02/13/2006
Intervenor Plaintiff Susan Solis TERMINATED: 02/13/2006
Intervenor Plaintiff Terry Fitzgerald TERMINATED: 02/13/2006

represented by Edward L White Edward L White PC 829 E 33rd St Edmond, OK 73013 405−810−8188 Fax: 405−608−0971 Email: ed@edwhitelaw.com ATTORNEY TO BE NOTICED
represented by Edward L White (See above for address) ATTORNEY TO BE NOTICED
represented by Edward L White (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 5:04-cv-1078 As of: 05/27/2017 02:54 PM CDT 2 of 7

Westphalen Insurance Services Inc doing business as Westphalen Insurance

Curtis L Smith Curtis L Smith P.O. Box 20881 Oklahoma City, OK 73156 405−517−0521 Email: curtis.uismith@gmail.com ATTORNEY TO BE NOTICED

Kelly L Whitworth Smith Rhodes Stewart & Elder PLLC 119 N Robinson Ave Suite 820 Oklahoma City, OK 73102 405−236−8282 Fax: 405−236−2828 Email: kwhitworth@srselaw.com TERMINATED: 05/10/2007 ATTORNEY TO BE NOTICED

Susan F Kane Smith Rhodes Stewart & Elder PLLC 119 N Robinson Ave Suite 820 Oklahoma City, OK 73102 405−236−8282 Fax: 405−236−2828 Email: skane@srselaw.com ATTORNEY TO BE NOTICED

Defendant
Gary Westphalen individually

represented by Curtis L Smith (See above for address) ATTORNEY TO BE NOTICED

Kelly L Whitworth (See above for address) TERMINATED: 05/10/2007 ATTORNEY TO BE NOTICED

Susan F Kane (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/31/2004
08/31/2004 08/31/2004 09/10/2004 09/10/2004 09/23/2004

# Docket Text
1 COMPLAINT against Westphalen Insurance Services Inc (Filing fee $ 150.) , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(cjs, ) (Entered: 09/01/2004)
2 PRAECIPE for and issued 1 Summons by Equal Employment Opportunity Commission. (cjs, ) (Entered: 09/01/2004)
3 ENTRY of Appearance by Michelle M Robertson on behalf of Equal Employment Opportunity Commission (cjs, ) (Entered: 09/01/2004)
4 Summons Returned Unexecuted by Equal Employment Opportunity Commission as to Westphalen Insurance Services Inc. (Robertson, Michelle) (Entered: 09/10/2004)
5 PRAECIPE for and issued 1 summons by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 09/10/2004)
6 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Westphalen Insurance Services Inc served on 9/14/2004, answer due 10/4/2004. (Robertson, Michelle) (Entered: 09/23/2004)

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10/04/2004 10/04/2004 10/04/2004 10/07/2004
10/08/2004 10/08/2004 10/08/2004 10/12/2004
10/12/2004
10/12/2004 10/13/2004 10/22/2004 10/22/2004 10/25/2004 11/02/2004 11/02/2004 11/22/2004
11/23/2004 11/24/2004

7 Answer by Westphalen Insurance Services Inc.(Smith, Curtis) (Entered: 10/04/2004)
8 ENTRY of Appearance by Curtis L Smith on behalf of Westphalen Insurance Services Inc (Smith, Curtis) (Entered: 10/04/2004)
9 ENTRY of Appearance by Kelly L Whitworth on behalf of Westphalen Insurance Services Inc (Whitworth, Kelly) (Entered: 10/04/2004)
10 MOTION to Intervene by Alisha Williams, Susan Solis, Terry Fitzgerald. (Attachments: # 1 Attachment 1 − Intervenor Complaint# 2 Attachment 2 − Determination Letter, Fitzgerald# 3 Attachment 3 − Determination Letter, Solis# 4 Attachment Determination Letter, Williams)(Glapion, Raphael) (Entered: 10/07/2004)
11 ENTRY of Appearance by Raphael T Glapion on behalf of Terry Fitzgerald, Susan Solis, Alisha Williams (Glapion, Raphael) (Entered: 10/08/2004)
12 ENTRY of Appearance by Edward L White on behalf of Terry Fitzgerald, Susan Solis (White, Edward) (Entered: 10/08/2004)
13 ENTRY of Appearance by Edward L White on behalf of Alisha Williams (White, Edward) (Entered: 10/08/2004)
14 ORDER granting 10 Terry Fitzgerald, Susan Solis and Alicia Williams' Motion to Intervene. Terry Fitzgerald, Susan Solis and Alicia Williams' shall file their Intervenors' Complaint within 10 days of the date of this Order . Signed by Judge Vicki Miles−LaGrange on 10/12/2004. (ks) (Entered: 10/12/2004)
15 INTERVENOR COMPLAINT, filed by Terry Fitzgerald, Susan Solis, Alisha Williams. (Attachments: # 1 Attachment 1 − Determination letter (Fitzgerald)# 2 Attachment 2 − Determination letter (Solis)# 3 Attachment Determination letter (Williams))(Glapion, Raphael) (Entered: 10/12/2004)
Docket Annotation: Party Gary Westphalen added to the case upon the filing of the Intervenor Complaint on 10/12/2004. (ar, ) (Entered: 10/13/2004)
16 PRAECIPE for and issued 2 summonses by Terry Fitzgerald, Susan Solis, Alisha Williams. (Glapion, Raphael) (Entered: 10/13/2004)
17 SUMMONS Returned Executed by Terry Fitzgerald, Susan Solis, Alisha Williams. Gary Westphalen served on 10/18/2004, answer due 11/8/2004. (Glapion, Raphael) (Entered: 10/22/2004)
18 SUMMONS Returned Executed by Terry Fitzgerald, Susan Solis, Alisha Williams. Westphalen Insurance Services Inc served on 10/18/2004, answer due 11/8/2004. (Glapion, Raphael) (Entered: 10/22/2004)
19 AMENDED ANSWER to Complaint by Westphalen Insurance Services Inc. (Smith, Curtis) (Entered: 10/25/2004)
20 ANSWER to Intervenor Complaint by Gary Westphalen, Westphalen Insurance Services Inc.(Smith, Curtis) (Entered: 11/02/2004)
21 MOTION to Dismiss Claims of Plaintiff Intervenors for Failure to State a Claim Upon Which Relief Can Be Granted and Brief in Support by Gary Westphalen, Westphalen Insurance Services Inc. (Smith, Curtis) (Entered: 11/02/2004)
22 RESPONSE to Motion re 21 MOTION to Dismiss Claims of Plaintiff Intervenors for Failure to State a Claim Upon Which Relief Can Be Granted and Brief in Support filed by Terry Fitzgerald, Susan Solis, Alisha Williams. (Attachments: # 1 Exhibit 1 − letter from Edward White to Curtis Smith# 2 Exhibit 2 − An v. Regents (vic liab case))(Glapion, Raphael) (Entered: 11/22/2004)
23 MOTION for Leave to File Reply to Plaintiff Intervenors' Response to Motion to Dismiss by Gary Westphalen, Westphalen Insurance Services Inc. (Smith, Curtis) (Entered: 11/23/2004)
24 ORDER granting 23 defendants' Application for Leave to File Reply to Plaintiff Intervenors' Response to Motion to Dismiss. Defendants shall file their reply on or before December 3, 2004. Signed by Judge Vicki Miles−LaGrange on 11/24/2004. (ks) (Entered: 11/24/2004)

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12/03/2004
12/17/2004 06/08/2005
07/12/2005 08/01/2005
08/04/2005 08/16/2005 08/16/2005 08/18/2005 08/19/2005 08/19/2005 08/22/2005 08/22/2005 08/24/2005 08/26/2005 09/26/2005 09/26/2005

25 REPLY to Response to Motion re 21 MOTION to Dismiss Claims of Plaintiff Intervenors for Failure to State a Claim Upon Which Relief Can Be Granted and Brief in Support filed by Gary Westphalen, Westphalen Insurance Services Inc. (Smith, Curtis) (Entered: 12/03/2004)
26 ENTRY of Appearance by Susan F Kane on behalf of Westphalen Insurance Services Inc, Gary Westphalen (Kane, Susan) (Entered: 12/17/2004)
27 ORDER granting in part and denying in part 21 defendants' Motion to Dismiss Claims of Plaintiff Intervenors for Failure to State a Claim Upon Which Relief Can be Granted. Defendants' Motion as to Gary Westphalen, individually, is Granted as to Causes of Action numbered 1−7 and 10 of the Plaintiff Intervenor's Complaint. Defendants' Motion is Denied as to Plaintiff Intervenors' claims against Westphalen Insurance Services, Inc. contained in Causes of Action numbered 8 and 9 of Plaintiff Intervenor's Complaint. Signed by Judge Vicki Miles−LaGrange on 6/8/2005. (ks) (Entered: 06/08/2005)
28 CERTIFICATE. (Smith, Curtis) (Entered: 07/12/2005)
29 MOTION for Protective Order and Brief in Support Thereof by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 1 − Pltf Intervenors Response to Dfdts' RFP No. 8# 2 Exhibit 2 − Deposition of Susan Solis Glapion)(Smith, Curtis) (Entered: 08/01/2005)
30 CERTIFICATE of Counsel by Curtis L Smith on behalf of Westphalen Insurance Services Inc, Gary Westphalen (Smith, Curtis) (Entered: 08/04/2005)
31 ENTRY of Appearance by Suzanne M Anderson on behalf of Equal Employment Opportunity Commission (Anderson, Suzanne) (Entered: 08/16/2005)
32 RESPONSE in Opposition re 29 MOTION for Protective Order and Brief in Support Thereof filed by Equal Employment Opportunity Commission. (Anderson, Suzanne) (Entered: 08/16/2005)
33 RESPONSE to Motion re 29 MOTION for Protective Order and Brief in Support Thereof filed by Alisha Williams, Susan Solis, Terry Fitzgerald. (Glapion, Raphael) (Entered: 08/18/2005)
34 MOTION for Leave to File Reply to Plaintiff Intervenors Motion in Opposition to Defendants' Motion for Protective Order by Westphalen Insurance Services Inc, Gary Westphalen. (Whitworth, Kelly) (Entered: 08/19/2005)
35 MOTION for Leave to File Reply Brief to Plaintiff EEOC's Response In Opposition to Defendants' Motion for Protective Order and Brief in Support Thereof by Westphalen Insurance Services Inc, Gary Westphalen. (Kane, Susan) (Entered: 08/19/2005)
36 ORDER granting 35 Motion for Leave to File Reply; defendants shall file their reply on or before August 26, 2005 (as more fully set out). Signed by Judge Vicki Miles−LaGrange on 8/22/05. (fp, ) (Entered: 08/22/2005)
37 ORDER granting 34 Motion for Leave to File Reply; defendants shall file their reply on or before August 26, 2005. . Signed by Judge Vicki Miles−LaGrange on 8/22/05. (fp, ) (Entered: 08/22/2005)
38 DOCKET: Scheduling Conference set for 10/4/2005 09:40 AM in Chambers before Honorable Vicki Miles−LaGrange. (fp, ) (Entered: 08/24/2005)
39 REPLY to Response to Motion re 29 MOTION for Protective Order and Brief in Support Thereof filed by Westphalen Insurance Services Inc, Gary Westphalen. (Kane, Susan) (Entered: 08/26/2005)
40 MOTION in Limine and Brief in Support by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 1 − Jeff Westphalen Deposition)(Kane, Susan) (Entered: 09/26/2005)
41 STATUS REPORT and Discovery Plan by Plaintiff Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 09/26/2005)

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09/29/2005 09/30/2005
10/04/2005
10/13/2005 10/14/2005 10/18/2005 10/18/2005 10/18/2005 10/19/2005 10/21/2005 10/24/2005 10/25/2005

42 ORDER denying 29 defendants' Motion for Protective Order. Signed by Judge Vicki Miles−LaGrange on 9/29/2005. (ks) (Entered: 09/29/2005)
43 MOTION for Summary Judgment and Brief in Support by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit A − Plaintiff Intervenors' Complaint# 2 Exhibit B − Answer to Plaintiff Intervenors' Complaint# 3 Exhibit C − Charge of Discrimination − Susan Solis# 4 Exhibit D − Statement of Susan Solis# 5 Exhibit E − Charge of Discrimination − Terry Fitzgerald# 6 Exhibit F − Statement of Terry Fitzgerald# 7 Exhibit G − Charge of Discrimination − Alisha Williams# 8 Exhibit H − Statement of Alisha Williams)(Kane, Susan) (Entered: 09/30/2005)
44 SCHEDULING ORDER: Motions to join due 30 days from the date of this order; Motions to amend due 30 days from the date of this order; Pla witness list due 4/1/2006; Pla exhibit list due 4/1/2006; Dft witness list due 4/11/2006; Dft exhibit list due 4/11/2006; Motions in limine due 5/25/2006; Jury instructions due 5/25/2006; Voir dire requests due 5/25/2006; Trial briefs due 5/25/2006; Proposed Findings of Fact and Conclusions due 5/25/2006; ADR Completion Date due by 1/31/2006. Discovery due by 5/1/2006. Jury Trial set for June 2006 trial docket before Honorable Vicki Miles−LaGrange. Daubert Motions due by 5/1/2006; Dispositive Motions due by 4/1/2006. Pretrial Report due by 5/25/2006. Signed by Judge Vicki Miles−LaGrange on 10/4/2005. Status Scheduling conference was held by Magistrate Judge Bana Roberts on 10/4/2005.(bc, ) (Entered: 10/04/2005)
45 RESPONSE to Motion re 40 MOTION in Limine and Brief in Support filed by Alisha Williams, Susan Solis, Terry Fitzgerald. (Attachments: # 1 Exhibit 1 − Deposition of Jeff Westphalen# 2 Exhibit 2 − Deposition of Tery Fitzgerald)(Glapion, Raphael) (Entered: 10/13/2005)
46 RESPONSE in Opposition re 40 MOTION in Limine and Brief in Support filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit #1, Deposition of G. Westphalen# 2 Exhibit #2, Deposition of J. Westphalen# 3 Exhibit #3, Deposition of T. Fitzgerald# 4 Exhibit #4, Statement of T. Fitzgerald)(Robertson, Michelle) (Entered: 10/14/2005)
47 MOTION for Leave to File Reply Brief to Plaintiff EEOC's Response to Motion in Limine by Westphalen Insurance Services Inc, Gary Westphalen. (Kane, Susan) (Entered: 10/18/2005)
48 MOTION for Leave to File Reply Brief to Plaintiff Intervenors' Response to Motion in Limine by Westphalen Insurance Services Inc, Gary Westphalen. (Kane, Susan) (Entered: 10/18/2005)
49 RESPONSE to Motion re 43 MOTION for Summary Judgment and Brief in Support filed by Alisha Williams, Susan Solis, Terry Fitzgerald. (Attachments: # 1 Exhibit 1 − Statements of Discrimination# 2 Exhibit 2 − Charges of Discrimination# 3 Exhibit 3 − Notices of Charges of Discrimination# 4 Exhibit 4 − Determination Letters# 5 Exhibit 5 − Deposition of Gary Westphalen)(Glapion, Raphael) (Entered: 10/18/2005)
50 ORDER granting 47 defendants' Application for Leave to File Reply Brief to Plaintiff EEOC's Response to Motion in Limine, and granting 48 defendants' Application for Leave to File Reply Brief to Plaintiff Intervenors' Response to Motion in Limine. Defendants shall file their reply briefs within 7 days of the date of this order. Signed by Judge Vicki Miles−LaGrange on 10/19/2005. (ks) (Entered: 10/19/2005)
51 MOTION for Leave to File Reply Brief to Plaintiff Intervenors' Response to Defendants' Motion for Summary Judgment by Westphalen Insurance Services Inc, Gary Westphalen. (Kane, Susan) (Entered: 10/21/2005)
52 ORDER granting 51 defendants' Application for Leave to File Reply Brief to Plaintiff Intervenors' Response to Defendants' Motion for Summary Judgment. Defendants shall file their reply brief on or before 10/28/2005. Signed by Judge Vicki Miles−LaGrange on 10/24/2005. (ks) (Entered: 10/24/2005)
53 REPLY to Response to Motion re 40 MOTION in Limine and Brief in Support, 48 MOTION for Leave to File Reply Brief to Plaintiff Intervenors' Response to Motion in Limine filed by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 1 − Deposition of Terry Fitzgerald# 2 Exhibit 2 − Statement of Terry Fitzgerald)(Kane, Susan) (Entered: 10/25/2005)

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10/25/2005
10/28/2005
10/28/2005 10/31/2005 10/31/2005 11/08/2005 11/10/2005 11/29/2005 12/02/2005 12/06/2005
12/21/2005
12/22/2005 01/18/2006 01/18/2006

54 REPLY to Response to Motion re 40 MOTION in Limine and Brief in Support, 47 MOTION for Leave to File Reply Brief to Plaintiff EEOC's Response to Motion in Limine filed by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 1 − Deposition of Terry Fitzgerald# 2 Exhibit 2 − Statement of Terry Fitzgerald)(Kane, Susan) (Entered: 10/25/2005)
55 REPLY to Response to Motion re 51 MOTION for Leave to File Reply Brief to Plaintiff Intervenors' Response to Defendants' Motion for Summary Judgment, 43 MOTION for Summary Judgment and Brief in Support filed by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 1 − Deposition of Susan Solis Glapion# 2 Exhibit 2 − Deposition of Alicia Williams# 3 Exhibit 3 − Deposition of Terry Fitzgerald)(Kane, Susan) (Entered: 10/28/2005)
56 MOTION for Protective Order by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit A − Proposed Stipulation and Protective Order# 2 Exhibit B − Letters of Correspondence)(Whitworth, Kelly) (Entered: 10/28/2005)
Docket Annotation: Please disregard [doc.no.56] filed incorrectly. Attorney to refile. (fp, ) (Entered: 10/31/2005)
57 MOTION for Protective Order by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 1 − proposed Protective Order# 2 Exhibit 2− letters of correspondence)(Whitworth, Kelly) (Entered: 10/31/2005)
58 RESPONSE in Opposition re 57 MOTION for Protective Order and brief in support filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−EEOC's Proposed PO# 2 Exhibit 2−Gov't Regulations)(Robertson, Michelle) (Entered: 11/08/2005)
59 MOTION for Leave to File Reply Brief to Plaintiff EEOC's Response in Opposition to Defendant's Second Motion for Protective Order and Brief in Support Thereof by Westphalen Insurance Services Inc, Gary Westphalen. (Kane, Susan) (Entered: 11/10/2005)
60 ORDER granting 59 defendants' Application for Leave to File Reply Brief to Plaintiff EEOC's Response in Opposition to Defendant's Second Motion for Protective Order. Defendants shall file their reply within 7 days of the date of this order. Signed by Judge Vicki Miles−LaGrange on 11/29/2005. (ks) (Entered: 11/29/2005)
61 REPLY to Response to Motion re 57 MOTION for Protective Order filed by Westphalen Insurance Services Inc, Gary Westphalen. (Kane, Susan) (Entered: 12/02/2005)
62 MOTION to Compel Discovery and Brief in Support by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−EEOC Discovery# 2 Exhibit 2−Def's Responses to Discovery# 3 Exhibit 3−Letter from Defendant# 4 Exhibit 4− G. Westphalen Deposition# 5 Exhibit 5−Charges of Discimination# 6 Exhibit 6−−J.Westphalen Deposition)(Robertson, Michelle) (Entered: 12/06/2005)
63 RESPONSE in Opposition re 62 MOTION to Compel Discovery and Brief in Support filed by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 1 − EEOCs Supplemental Set of Requests for Production to Defendant# 2 Exhibit 2 − Defendants Response to EEOCs Supplemental Requests for Production# 3 Exhibit 3 − Deposition of Susan Solis Glapion)(Kane, Susan) (Entered: 12/21/2005)
64 RESPONSE in Opposition re 62 MOTION to Compel Discovery and Brief in Support (Supplemental) filed by Westphalen Insurance Services Inc, Gary Westphalen. (Attachments: # 1 Exhibit 3 − Westphalen's Supplemental Answers to EEOC's 1st Interrogatories and Requests for Production)(Kane, Susan) (Entered: 12/22/2005)
65 PROTECTIVE ORDER granting defendants' Motion to Enter Protective Order, as more fully set out in the order. Signed by Judge Vicki Miles−LaGrange on 1/18/2006. (ks) (Entered: 01/18/2006)
66 PROTECTIVE ORDER, more fully set out in the order. Signed by Judge Vicki Miles−LaGrange on 1/18/2006. (Attachments: # 1 Exhibit A)(ks) (Entered: 01/18/2006)

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01/26/2006 01/26/2006 01/27/2006 01/31/2006 01/31/2006
02/13/2006 02/13/2006 02/15/2006 02/15/2006
02/15/2006
02/15/2006 02/15/2006
05/09/2007 05/10/2007

67 NOTICE of Change of Address by Edward L White (White, Edward) (Entered: 01/26/2006)
Docket Annotation: Disregard [Doc.#67] Change of Address. Attorney filing document is not the signature on the document. Attorney to refile. (pw, ) (Entered: 01/27/2006)
68 NOTICE of Change of Address by Raphael T Glapion (Glapion, Raphael) (Entered: 01/27/2006)
69 ADR REPORT BY MEDIATOR / EVALUATOR (Barghols, Steven) (Entered: 01/31/2006)
70 ADMINISTRATIVE CLOSING ORDER: This action is administratively terminated without prejudice to the rights of the parties to reopen for entry of any stipulation or order. If not reopened within 30 days to obtain final determination, action is deemed dismissed with prejudice. Signed by Judge Vicki Miles−LaGrange on 1/31/2006. (ks) (Entered: 01/31/2006)
71 UNOPPOSED MOTION to Vacate Administrative Closing Order and Enter Consent Decree by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−Consent Decree & Notice)(Robertson, Michelle) (Entered: 02/13/2006)
72 STIPULATION of Dismissal With Prejudice by Alisha Williams, Susan Solis, Terry Fitzgerald, Westphalen Insurance Services Inc, Gary Westphalen. (Whitworth, Kelly) (Entered: 02/13/2006)
73 ORDER granting 71 EEOC's Motion to Vacate the Administrative Closing Order and for Entry of Consent Decree. . Signed by Judge Vicki Miles−LaGrange on 2/15/06. (fp, ) (Entered: 02/15/2006)
74 ORDER: On the representation of cnsl for Plf Intervenors and Defendants, purs to Rule 41(a)(1) FRCP hereby stipulate to the dismissal w/prejudice of any and all clms Plf Intervenors may hv agnst Dfts, w/each party to bear their own attys' fees and costs, it is ordered that all clms in this action be dismissed w/prejudice to any further action.. Signed by Judge Vicki Miles−LaGrange on 2/15/06. (fp, ) (Entered: 02/15/2006)
75 ORDER: The parties to this Consent Decree agree to bear their own costs and atty's fees associated with the above−referenced Complaint. The term of this Decree shall be for (3) years from the effective date. The Ct shall retain jurisdiction to enforce the terms of this Decree until the expiration of the term of the Consent Decree. (more fully set out) . Signed by Judge Vicki Miles−LaGrange on 2/15/06. (fp, ) (Entered: 02/15/2006)
Docket Annotation: Disregard [doc.no.75] attachment left off in error. will reenter. (fp, ) (Entered: 02/15/2006)
76 ORDER: The parties to this Consent decree agree to bear their own costs and atty's fees associated with the above−referenced Complaint. The term of this Decree shall be for (3) years from the effective date. The Ct shall retain jurisdiction to enforce the terms of this Decree until the expiration of the term of the Consent Decree. (more fully set out). Signed by Judge Vicki Miles−LaGrange on 2/15/06. (Attachments: # 1)(fp, ) (Entered: 02/15/2006)
77 MOTION to Withdraw as Attorney by Westphalen Insurance Services Inc, Gary Westphalen. (Whitworth, Kelly) (Entered: 05/09/2007)
78 ORDER granting 77 Motion to Withdraw as Attorney. Attorney Kelly L Whitworth terminated. Signed by Judge Vicki Miles−LaGrange on 5/10/2007. (ks) (Entered: 05/10/2007)