~

~ . , . . 171~0 Case 4:04-cv-00205-JEC Document 6 Filed 03/03/05 Page 1 of 6 IN

. !J

~~A P, ~ ~ 2005 ~(,!~ E~ ~

IN THE UNITED STATES DISTRI CT COURT

Work

NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

LEJEAN KOGER, Individually and on behalf of a class of similarly situated persons,

Plaint iffs,
V.
TEXAC O, INC ., SHELL OIL COMPANY, PROTIVA, INC ., MASHUD M. REZA, BABUL ISLAM, a nd all other p ersons and entities ac ting in concert with the named D efe nd ants,

Civil Action File No .:
4 : o4 c v 2-o5 - "

D efe nd a n ts .

AMENDED COMPLAINT 1 . Plaintiff resides in Ft . Oglethorpe, Georgia . The acts giving rise to Plaintiffs claims occurred in Catoosa County, Georgia, where all of the Defendants did or do business . This Honorable Court has jurisdiction over the parties and subject matter of this lawsuit . 2. The Plaintiff was employed for a number of years at a Shell convenience store located at 5511 Alabama Highway, Ringgold, Georgia 30736 . 3 . The convenience store at which the Plaintiff was employed was owned and operated for many years by the Defendants Texaco, Inc . and Shell Oil

\021090W001 13 50533 . v1

Case 4:04-cv-00205-JEC Document 6 Filed 03/03/05 Page 2 of 6

Company who, at all times material, acted pursuant to entities controlled by them as agents . These other entities included Motiva, Inc . and Star Staff, Inc .
4 . In 2003, the Defendants Shell Oil Company and Texaco, Inc . entered into a transaction with Defendant Mashud Reza . As part of that transaction, Reza caused a number of different corporations controlled by him either alone or by persons acting in concert with him to take over the operation of a number of Shell convenience stores in the State of Georgia . Reza caused the incorporation of the Defendant Protiva, Inc . which undertook to operate the store at 5511 Alabama Highway, Ringgold, Georgia 30736 .
5 . Defendant Reza, either alone, in concert with others, and in conjunction with a number of corporation controlled by him, including Defendant Protiva, Inc ., undertook to operate the Shell convenience stores in the State of Georgia on behalf of the Defendants Shell Oil Company and Texaco, Inc . As part of that transaction, the employees who worked inside the convenience stores sold Shell fuel products to the public for Shell and Texaco, Inc . Upon information and belief, at all times material, Shell Oil Company and/or Texaco, Inc ., or their subsidiaries or agents never relinquished ownership of the fuel until it was sold to the ultimate purchaser . At all times material, the Plaintiff was an employee of Shell Oil Company, Inc ., Texaco, Inc ., Protiva, Inc ., and Mashud M . Reza.

102 1 09 01000611350533 .v 1

2

Case 4:04-cv-00205-JEC Document 6 Filed 03/03/05 Page 3 of 6

6 . The Defendants Reza and Protiva, Inc, conferred regional authority for the operation of some or all of the Shell convenience stores upon Babul Islam .
7. The Defendants Reza and Islam undertook to replace Caucasian managers at many, if not all, of the stores that they had begun to operate for Shell and Texaco. As part of this plan, the Defendants caused the demotion of the Plaintiff from her former position as Manager of the store located at 5511 Alabama Highway, Ringgold, Georgia 30736 . She was replaced by a much younger, very inexperienced male by the name of Moni Mannaruzziman, who was of the same race as Defendants Reza and Islam .
8 . Plaintiff filed charges of employment discrimination with the Equal Employment Opportunity Commission . On or about November 9, 2004, the Equal Employment Opportunity Commission terminated its proceedings and issued a right-to-sue letter to Plaintiff.
9 . The conduct of the Defendants in demoting her from her position as store manager in favor of a person with a different race violated Plaintiff's rights under Title VII of the Civil Rights Act of 1964, as amended and 42 U .S.C. § 1981 .
10. The Defendants conducted a similar purge of Caucasian or American store managers at a large number of stores controlled by them within the State of Georgia for the purpose of replacing them with persons of the same race as the

102109010 000 1 1 350533 .vi

3

Case 4:04-cv-00205-JEC Document 6 Filed 03/03/05 Page 4 of 6

Defendants. Plaintiff accordingly sues upon behalf of all similarly situated persons
who were demoted from or removed from their positions as store managers by the
Defendants on account of their race .
11 . Plaintiff accordingly prays for leave to proceed as a representative of
a class of all similarly situated persons . On behalf of herself and all such similarly
situated persons, Plaintiff seek damages in the form of back pay, front pay,
compensatory damages, punitive damages, attorneys fees under all applicable
statutes, such equitable relief to which she may be found entitled, and all such
other relief to which the Plaintiff and members of the class she seeks to represent
are entitled.
12 . Plaintiff demands a jury to try all issues .
Respectfully submitted,
SAWYER & ASS OCIATES
` k !Kr( "all Ga~ H. Kimbrell Sawyer, III Georgia Bar No
. 62$ObO~ 7587 Nashville Street Ringgold, GA 30736 (706) 965-7580
SHUMACKER WITT GAITHER & WHITAKER, P .C.

\021090\0000 1 13 50533M

Frank P . Pinchak
4

Case 4:04-cv-00205-JEC Document 6 Filed 03/03/05 Page 5 of 6 Tennessee Bar No . 002094
Elizabeth Dickson Tennessee Bar No . 22763
1100 SunTrust Bank Building 736 Market Street Chattanooga, TN 37402-4856 (423) 425-7000 Attorneys for Plaintiffs,
\021 09o \oooa 1 \350533 .v i

Case 4:04-cv-00205-JEC Document 6 Filed 03/03/05 Page 6 of 6

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and exact copy of the foregoing

Amended Complaint has been served upon all parties and/or counsel listed below

by placing it in the United States Mail, addressed to said parties with suffi . ent

postage to carry the same to its destination, on this day of ,

2005 .

U

(-j

Matthew F . McGahren, Esq . Marlo R. Elchahal, Esq .
MCGAHREN & CHID, LLC 6171 Crooked Creek Road Norcross, GA 30092
Telephone: (770) 729-1779 Facsimile : (770) 729-1774

SAWYER & ASSOCIATES
"a S""' ~
H. Kimbrell Sawyer, III ~ Georgia Bar No. 628060
7587 Nashville Street Ringgold, GA 30736 (706) 965-7580

SHUMACKER WITT GAITHER & WHITAKER, P .C.

\02 1090\00001 \3505 33 .Y i

Frank P, mchak Tennessee Bar No . 002094
Elizabeth Dickson Tennessee Bar No . 22763
1100 SunTrust Bank Building 736 Market Street Chattanooga, TN 37402-4$56 (423) 425-7000
Attorneys for Plaintiffs
6

 
 Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 1 of 25

I N THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ~FORTHENDISRCTOFGEA
ATLANTA DIVISION

MAR 2 8 -,J7

LEJEAN KOGER, Individually and on behalf of a class of similarly situated persons,

By,

F

Plaintiff,

:CIVIL ACTION NO .

V.

:4 :04-CV-205-JEC

TEXACO, INC ., SHELL OIL COMPANY, PROTIVA, INC ., MASHUD M . REZA, BABUL ISLAM, and all other persons and entities acting in concert with the named DEFENDANTS,

Defendants .

ORDER & OPINION This case is presently before the Court on the Magistrate Judge's Final Report and Recommendation [72] granting defendants' Motion for Summary Judgment [38] . Plaintiff filed Objections to the Final Report and Recommendation an September 29, 2006 [73] . The Court has reviewed the record and concludes that the Magistrate Judge's Final Report and Recommendation [73] is adopted in part and rejected in part, for the reasons set out below .
BACKGROUND Plaintiff, Lejean Koger, filed a race discrimination case under 42 U .S .C . § 1981 ("Section 1981") and Title VII of the Civil Rights Act of 1964, 42 U .S .C . § 2000e et seq . ("Title VII") . ("Am . Compl ."

AO T2A (Rev.8J82)

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[6} .) 1 On May 5, 2006, defendants filed a Motion for Summary Judgment (Def .'s Mot . for Summ . J ." [38] .) The Magistrate Judge issued a Final Report and Recommendation ("R&R" [72]) granting defendants' Motion for Summary Judgment on September 21, 2006 . Plaintiff filed objections to the R&R on September 29, 2006 . ("PI . Obj ." [73] .)
In accordance with 28 U .S .C . § 636(b) (1) and FED . R . CEV . P . 72, the Court has conducted a de novo review of the portions of the Magistrate Judge's R&R to which plaintiff has objected, and has reviewed the remainder of the R&R for plain error . U .S . v . Slay, 714 F .2d 1093, 1095 (11th Cir . 1983) . Plaintiff does not object to the findings of fact or procedural background in the R&R, and having reviewed them for plain error, the Court hereby adopts the facts and procedural background as set forth in the R&R .
1 At an earlier stage of the litigation, the Magistrate Judge held that even though plaintiff's case style asserted that she wass suing "[i]ndividually and on behalf of similarly situated persons" and that the Amended Complaint contained a prayer for leave to proceed as a representative of all similarly situated individuals (Am . Compl . [6] at 11), plaintiff failed to comply with the requirements for proceeding as a class action . (R&R [72] at 2-3 .)
The Magistrate Judge also denied plaintiff's Motion to Amend Complaint [46] seeking to add an F LSA claim and to add a new defendant . ("July 18, 2006 Magistrate Order" [67] .) Finally, the Magistrate Judge ruled that plaintiff's action did not contain an Age Discrimination in Employment Act ("ADEA") claim, because plaintiff failed to formally assert such a claim . (R&R [72] at 3 .)
2
AO 72A (Rev.8/82)

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DISCUSSION I . The Mag i strate Judge's Re port and Recommendation
Plaintiff has sued the defendants, alleging that she was demoted from her job position on account of her race . She has sued defendants Shell, Texaco, and Protiva under both Title VII and ~ 1981 . She has sued defendants Mashud Reza and Babul Islam under ~ 1981, oonly . 2
All defendants have filed a motion for summary judgment . In determining whether to grant summary judgment, the same legal analysis applies to both Title VII and § 1981 claims . Defendants Shell and Texaco (collectively hereafter "Shell") have moved for summary judgment on all of plaintiff's claims against them, arguing that neither entity acted as plaintiff's employer at the time of her demotion . (Def .'s Mot . for Summ J . [38] at 4-10 .) All defendants have moved for summary judgment on the race discr i mination cla i ms against them, contending that plain t if f has failed t o demons t rate that their stated non-discriminatory reasons for demoting her were a ~ pretext to hide racially discr i m i natory mot i ves .
The Mag i strate Judge recommended granting summary judgment for Shell and Texaco, concluding that neither had acted as p l aintiff's
2 Title VII allows suit only against an employer ; individual employees cannot be sued for discriminatory acts . Such employees can, however, be sued under § 1981 for certain racially discriminatory acts .
3
AO 72A (R ev.sls2)

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"joint" or "single" employer when Protiva demoted plaintiff . Accordingly, neither defendant could be found liable for any alleged violations of Title VII or Section 1981 . Specifically, the Magistrate Judge concluded that Shell had maintained an insufficient amount of control over employees at the Ringgold Station--the station that employed Koger-and that Shell and Protiva were not sufficientlyy interrelated so as to be considered joint or single employers .
As to defendant Protiva, who was clearly plaintiff's employer, and as to the individual defendants, Reza and Islam, the Magistrate Judge recommended that summary judgment be granted as to all three defendants . The magistrate judge concluded that . plaintiff had fulfilled her initial burden of establishing a prima facie case of discrimination (R & R [72] at 37), but had failed to present evidence sufficient to show that defendants' two legitimate, nondiscriminatory reasons for the decision to demote Koger were pretextual . (Id . at 40 .) The Magistrate Judge further concluded that plaintiff's statistical evidence could not support a "pattern and practices" claim of discrimination . The Magistrate Judge finally held that plaintiff could not assert a retaliation claim because plaintiff had formally asserted this claim for the first time in her Response to Motion for Summary Judgment . ("Opp'n to Mot . for Sumn . J ." [49] at 18 ; . 23-25 .)
4
Ad 72A (Rev.8182)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 5 of 25
XT . Plaintiff's Objections to the Magistrate Judge's Recommendation that Summary Judgment Be Granted to Defendants on the Merits of the §1981 Claim and Tithe VII Claim Plaintiff objects to the Magistrate Judge's determination that
the race discrimination claims under § 1981 and title VII be dismissed as to all remaining defendants .3 Plaintiff contends that the record contains both direct and circumstantial evidence of race discrimination .
A . Plaintiff's Objections Concerning Direct Evidence of Discrimination
In her opposition to the Magistrate Judge's R&R, plaintiff argues that she proffered direct evidence of race discrimination, and that the Magistrate Judge erred when he examined plaintiff's circumstantial evidence under the burden-shifting McDonnell Douglas framework, without considering this direct evidence . See McDonnell Douglas Corp . v . Green, 911 U .S . 792 (1973) .
As evidence of direct discrimination, plaintiff points specifically to two comments made by current and former employees of defendants . Yet, neither comment was related to the decision to demote plaintiff nor was either statement made by a decisionmaker . Under Eleventh Circuit law, statements by non-decisionmakers cannot
3 As noted by the Magistrate Judge, the individual defendants, Reza and Islam are only potentially liable under a §1 981 claim, not a Title VII claim . The analysis of the merits is the same as to both claims .
5
AO 72A (Rev 8182)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 6 of 25

be considered direct evidence of age discrimination . See Eskra v .

Provident Life & Accident-Ins . Co ., 125 F . 3d 1406, 1411 (11th Cir .

1997) (a statement by a person who did not play any part in the

adverse personnel decision is not direct evidence of discrimination

(internal citations omitted) ; Hutchinson v . AT&T Commc'n . Inc ., No .

1 :88-CV-2191, 1991 WL 330911 at *10 (N .D . Ga . Aug . 29, 1991)

(statements by non-decisionmakers cannot satisfy plaintiff's burden

of proving discrimination by direct evidence) .

Specifically, Earl Reeves, a manager of the Ringgold Station

until 2003, made one of the statements in issue . (Koger Dep . at

30 :8-10} According to Koger, Reeves said it was his belief that

Protiva had "no intention of keeping any of the managers or employees

that were currently there" and that they would be replaced by

"Pakistanis and people of their own dissent [sic] .

(Id . at 87 :3-

18 .) However, Koger contends that her employer demoted her in March

2004 (id . at 46 :17 - 20), at a time when Reeves was no longer employed .

Accordingly , Reeves necessarily could have had no role in the

decision to demote plaintiff, and, thus cannot be considered a

decisionmaker .

Second , plaintiff cites a comment made by Mashud Reza , an owner

of Protiva, to Israil at the time that Reza hired Israil . According

to Israil ' s testimony , Reza stated that "since we [Reza and Israil]

are from the same country, I was told at the beginning if he can make

6

c . y AO 72A
Rev &B2

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 7 of 25

little money, maybe I can get little as profit ."' (Israil Dep . at 6 :4--9 .) Though the record indicates that Reza was an owner of Protiva (Israil Dep, at 5 :25-6 :1), there is no evidence that he played any role in the decision to demote Koger . Koger states that both Mojib Rahman and Babul Islam "took me back to the office and

they told me that they thought that it would be better if Moni was the manager and I would be his assistant ." (Koger Dep . at 46 :1947 :3 .) Because plaintiff does not offer any evidence indicating that

either Reza or Reeves had any involvement in the decision to demote

plaintiff, these comments do not constitute direct evidence of discrimination . In addition, even if Reeza was a decisionmaker,

statements made by decisionmakers unrelated to the decisional process

are not direct evidence of discrimination . Stone v . Galaxy Carpet Mills, Inc ., 841 F . Supp . 1181, 1185 (N .D . Ga . 1993) (statements by

decisionmakers unrelated to the decisional process do not constitute direct evidence) (internal citation omitted) .

B.

Pl aintiff ' s Objections Regarding Evidence of Pre text

1 . Background

Plaintiff also objects to the Magistrate Judge's finding that plaintiff failed to demonstrate sufficient evidence of pretext under

4 The Court is not even clear what this statement means or whether it is' a recruiting pitch or a statement suggesting a discriminatory state of mind . The ambiguity of the statement also disfavors consideration of it as direct evidence of discrimination .
7

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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 8 of 25
the McDonnell Douglas framework . Under McDonnell Douglas, a plaintiff must make out a prima facie case of discrimination . McDonnell Douglas Corp ., 411 U .S, at 802 . Where the alleged adverse action is an unlawful demotion, plaintiff must demonstrate the following to make out his/her prima facie case : (1) she is a member of a protected class ; (2) she was qualified for the position she occupied ; (3) she was demoted ; and (4) she was replaced by someone who is not a member of her protected class . Chapman v . AT Transp ., 229 F .3d 1012, 1024 (11th Cir . 2000) (en banc) .
If a plaintiff establishes a prima facie case, the burden shifts to the defendant employer to articulate one or more legitimate, nondiscriminatory reasons for the adverse employment action . Id . If the employer meets this burden, the burden shifts back to plaintiff to present evidence, which may include evidence previously presented at the prima facie stage, "sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision ." Id . at 1024 . If a plaintiff cannot present evidence sufficient to raise a genuine issue of material fact concerning whether each of defendant employer's reasons is a pretext, defendant employer is entitled to summary judgment . Id .
The Magistrate Judge concluded that plaintiff had established a prima facie case, but he further determined that the plaintiff had
8
AO 72A ( R ev. 8(82)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 9 of 25
failed to show that the defendants' proffered nondiscriminatory reasons for the demotion were pretextual . Plaintiff argues that the evidence in the record is sufficient to create a material issue ofl fact as to whether the defendants' motivations were as claimed or, instead, were pretexts for a desire to demote plaintiff because of her race . She notes that the defendants have offered shifting) explanations for their demotion of her, as well as inconsistent testimony about whether she was even demoted . See Obj . to R&R [73] at 5 .) (the Key Management Person for defendants testified that the plaintiff had never been demoted, which was contradicted by the General Manager's testimony that the defendants had, in fact, demoted her . Citing Hurlbert v . St . Mary's Health Care Sys ., Inc ., 439 F .3d 1286 (11th Cir . 2006), plaintiff contends that "an employer's failure to articulate clearly and consistently the reason for any employee's discharge may serve as evidence of discrimination ."
With regard to defendants ' claim that they demoted plaintiff because she had an unacceptable level of cash shortages, plaintiff notes that the defendants admit that they did not document any such shortages in writing nor follow their own internal policies for disciplining an employee . That is, they did not give plaintiff any warning about the problem and plaintiff avers that they never even spoke to her about their purported concerns while she was a manager . Id . at 6 - 8 .
9
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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 10 of 25
Plaintiff also contends that other managers of the same ethnicity as the defendants--that is, of Bangladeshi or Southeastern Asian Indian descent--had more severe cash shortages than did plaintiff, yet the defendants never demoted these individuals . (Obj . to R&R [73] at 8-11) . This evidence of disparate treatment, according to plaintiff, is sufficient to defeat defendants' motion for summary judgment . For the reasons explained below, the Court agrees and, because it concludes that this evidence is sufficient to warrant the denial of summary judgment, it does not further address the other grounds advanced by plaintiff, supra, in support of her objections to the R&R's recommendation that summary judgment be granted .
2 . Evidence of Disparate Treatment of Plaintiff With Regard to Ov e rages and Shortages
Defendants have offered two primary reasons far their decision to demote the plaint i ff : (1) she had numerous cash shortages/overages for a few days while she was manager and (2) she had been unable to i ncrease i nside sales, as they would have liked for her t o do .' The Court addresses the f i rst explanat i on for demoting the plaintiff and
i i the evidence that she has offered which casts doubt on th i s I
5' The cash shortage claim has been the explanation discussed most throughout the litigation . Defendants' claim that plaintiff's sales were inadequate has not been advanced with enough precision for the Court to understand what standards the defendants were applying in assessing the appropriate level of sales or the extent of the plaintiff's deficiency in that regard .
10
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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 11 of 25

explanation .

In considering defendants' explanation that it had demoted the plaintiff because she had an unacceptably high number of cash

register overages and shortages for which she could not account,, the Magistrate Judge noted that "[a]lthough Koger managed several weeks

in which the overages and shortages were within the acceptable range, there were numerous days during her management tenure in which the

overages and shortages exceeded one hundred dollars per day

.

When confronted, Koger was unable to give her supervisors an

acceptable explanation for the discrepancies ." (R&R [72] at 39 .)

The Magistrate Judge correctly concluded that, taken by itself, the above constituted a neutral, non-discriminatory reason for

demoting plaintiff . The Magistrate Judge further concluded that the plaintiff had not proffered sufficient evidence to suggest that defendants' reasons were pretextual . Specifically, the Magistrate Judge noted that the plaintiff's evidence of overages/shortages by other managers was not systematically presented, as she had failed

"to present full and complete records of any of the Bangladeshi managers to support her claim" that her own overages/shortages were

minimal in comparison . Id . at 42-43 . Instead, plaintiff's records

seemed to be "random samplings of those managers' weekly totals," from which one cannot discern whether the records offered "are

representative of their performance over several months or,

11

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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 12 of 25
alternately, if those reports are from weeks in which the managers had the greatest cash register discrepancies ." Id . at 43 .
The Court agrees that plaintiff's evidence of the various managers' histories of overages/shortages ["hereinafter, "cash discrepancies"] is hardly a model of clarity, 6 but neither is the same sort of evidence presented by defendants to document the plaintiff's own alleged record of discrepancies . Without a forensic accountant, it is impossible for the uninitiated to make much sense of any of these records . To the extent that the Court must identify which one of the parties should be faulted for vagueness in extrapolating performance from these records, it is the defendants who must draw the negative inference , as it is the defendants who created the vague standard of performance that the plaintiff allegedly did not meet .
Specifically, in their motion for summary judgment, the defendants offered only a very sketchy assessment of plaintiff's alleged cash deficiencies, stating that there was "clear evidence of the abnormal cash overages and shortages that occurred on her watch ." (Mot . Summ . J . [38] at 13 .) The defendants supported this assertion
6 Plaintiff contends that defendants are in no position to criticize the clarity of plaintiff's presentation of this documentary evidence, as defendants had consistently violated their discovery obligations to produce the documents, which had been the subject of numerous requests and a motion to compel, and as defendants did not finally turn over these documents until the day that plaintiff's response to defendants' motion for summary judgment was due . (Pls .' Obj s . to R&R [731 at 9-10) .
12
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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 13 of 25

with the Affidavit of Mojib Rahman, who stated that management had

demoted plaintiff, in part, "because the cash over/shortage figures

during the times she served as manager contained abnormal discrepancies ." (Aft . of Rahman [39] at 9[ 3) Rahman goes on to

state that these discrepancies could be seen in the chart setting out

plaintiff's record on these matters and "particularly during the week

of February 16th . . . ."

Id . The Chart to which Rahman refers is a

daily chart, with a weekly tally, of 33 different pieces of financial

information concerning the store and covering the period of February

16-April 4 . (Dep . E x . 2 , Koger ' s Deposition) . At no point in this

litigation have defendants ever made clear how they determined when

a level of discrepancies was sufficiently "abnormal" to warrant

disciplinary action .

In her Supplemental Response [69] to the defendants' Motion for

summary judgment , plaintiff cites to the records of her Bangladeshi

successor and six other managers of Bangladeshi descent who were

employed by the defendants at the same time as the plaintiff .'

Plaintiff notes that , upon a comparison of the her record with these

7

Plaintiff explains that she was unable to present this

comparison in her original response to the motion for summary

judgment because the defendants had failed to present these records

during the discovery period, notwithstanding plaintiff's multiple

requests for them, and had instead only provided plaintiff with

records of comparators after her response to the motion for summary

judgment had been filed . (Pl .'s Supp . Resp . [69] at 4-5)

13

AO 72A (R ev 8J82)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 14 of 25
Bangladeshi managers, "[p]laintiffs minimal cash overages and shortages do not even began (sic) to compare to the mufti-thousands of dollars in overages and shortages originating in stations managed by persons of Indian descent and from Bangladesh, and especially to the overages and shortages incurred by her Indian/Bangladesh replacement . . . . [Yet, plaintiff] was the only one demoted, or even disciplined, for the shortages ." (Supp . Resp . [69] at 4 .)
In reply to plaintiff's contention that Bangladeshi comparators had substantially worse records for averages and shortages than did the plaintiff, the defendants make no effort to dispute plaintiff's assessment . Thus, the record before the Court indicates that as to one of the defendants ' primary reasons for demoting the plaintiff-her unacceptable level of overage/shortages- - several other Bangladeshi mangers had substantially worse records, but were never demoted .
Unless an explanation exists for such a disparity, the latter is probative evidence that the employer's stated reason for demotion was a pretext for racial discrimination . Here, the defendants' effort to explain the disparity is quite unpersuasive and, indeed, almost non-existent . Specifically, defendants fault plaintiff for not presenting "the particular circumstances surrounding each instance of overage and/or . sh o rtage" and note that the fact that other managers
had a worse record "does not at all rule out that other managers may
14
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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 15 of 25
have been reprimanded for such mistakes or had a good explanation for their particular overages or shortages but were kept because of theirr ability to maintain higher inside sales (unlike the Plaintiff) . . . ." (Defs .' Reply [71] at 14) (emphasis added) .
Of course, in any human endeavor, anything is possible and all sorts of things may have happened . Defendants, however, have nott offered any evidence, or even claimed, that any of these hypothetical scenarios ever occurred . If a Bangladeshi manager had been reprimanded' or had an explanation for his own financial discrepancy or had better sales than the plaintiff, defendants would be the parties who should know that, not the plaintiff . As defendants failed to even turn over these comparator records until after discovery was over and the plaintiff had filed her first responsive pleading, defendants are hardly in a position to fault the plaintiff for not being conversant on all the ins and outs of the employment records of these other comparators . Moreover, to the extent that defendants throw out the possibility that other managers may have better explained their discrepancies than did the plaintiff, the plaintiff has averred that the defendants never spoke to her about any financial discrepancy prior to demoting her . Hence, assuming
8 Of course, if a comparator had been merely reprimanded, and not demoted, for a more egregious financial discrepancy, defendants would still be deemed to have engaged in disparate treatment .
15
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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 16 of 25
plaintiff ' s averment to be true , as the Court must, plaintiff cannot be faulted for an inadequate explanation if none was ever sought by the defendants . 9
In short, the Court concludes that plaintiff has presented adequate evidence of pretext to warrant denying the defendants' motion for summary judgment as to plaintiff's claim of discriminatory demotion that is premised on a disparate treatment theory . III . Plaintiff Failed t o Properly include A Claim for Retal i ation
Plaintiff also objects to the Magistrate Judge's dismissal of her retaliation claim . Plaintiff alleges that her retaliation claim survives because, under Eleventh Circuit precedent, the scope of a judicial complaint is defined by the scope of the E E OC investigation that "can reasonably be expected to grow out of the charge of discrimination ." Baker v . Buckeye Cellulose Corp ., 856 F .2d 167, 169 (11th Cir . X988) .
Though the contours of a complaint are guided by the scope of the EEOC investigation that "can reasonably be expected to grow out of the charge of discrimination," a plaintiff cannot avoid the procedural requirements of formally asserting her allegations in a
g' Defendants also noted in their Reply that "at least one manager from Bangladesh was let go due to cash shortage problems ." (Defs .'Reply [71] at 14) (emphasis in original) . That defendants may have treated plaint i ff . as harshly as one comparator does not ev i scerate the ex iste nce of pretext i f they a l so , without good reason, treated her more harshly than other comparators .
16
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Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 17 of 25
complaint, prior to a motion for opposition to summ ary judgment . S e e Gilmour v . Gates, McDona l d & Co ., 382 F .3d 1312, 1314 (11th Cir . 2004) (per curiam ) ( liber a l ple a ding st a nda r d does no t a ll o w plaintiff t o ra i se a new claim at the summary judgment stage) . The scope of a complaint is limited to the EEOC charge because the EEOC would have had no opportuni t y to investigate or attempt conc i liation of grievances that are not identified . Cabiness v . YKK (USA), Inc ., 859 F . Supp . 582, 586-87 (M .D . Ga . 1994) (internal citations omit te d) . Thus, the requirement that plaintiff first f i le an EEOC . charge serves to lim i t ' the scope of plaintiff's complaint, but does not relieve a plaintiff of her duty to ra i se any and all cla i ms in her complaint .
Moreover, the defendants would suffer great pre j ud i c e i f plaint i ff were perm i tted to raise a retaliation cla i m at this late date . A complaint pu t s a defendant on notice as to wha t a p l a i nti f f i s claiming and permits the defendant to focus its attention i n ',
I dis co very on th o se i ssu e s . I t w o ul d be a w aste o f t i me and reso ur c es to force defendants to take d i scovery on all conceivable i ssues raised in plaint i ff's EEOC charge, but not alleged in her compla i nt . Here, discovery would have to begin anew and defendants would have to file a new motion for summary j udgment, i f plaintiff were allowed t o r aise t his tardy cl aim .
Plain t iff also argues tha t she preserved h e r r e tal iat ion cla im 17
AO 7za,
( Rev- 8/82)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 18 of 25
by raising it for the first time in the parties' Joint Preliminary Report and Discovery Plan ("Joint Report" [73-2] at 14 .) Even if plaintiff had laid out facts in the faint Report that were sufficient to put defendants on notice that she was considering making a retaliation claim, plaintiff still was required to include such an claim in a properly-filed complaint . Just as her EEOC charge may not act as a substitute for a complaint, the filing of her Joint Report does not relieve plaintiff of the duty to file a complaint setting forth a short and plain statement of her allegations . See Conley v . Bbstic, 1993 WL 741854 (N .D . Ga . December 28, 1993) at *16 noting that "inclusion of claims in the pretrial stipulation, the mention of them in discovery and the filing of motions concerning those claims [are ] not a substitute for the factual allegations of a complaint . . ." (internal citation and quotation omitted) .
In short, plaintiff's complaint is limited by her EEOC charge, budt not expanded . Moreover, plaintiff may not use her EEOC charge as a substitute for a formal complaint . To allow plaintiff to do otherwise would circumvent the purpose and rationale of FED . R . Civ . P . 8(a) . Thus, the Magistrate Judge properly refused to consider plaintiff's late-mentioned retaliation claim . IV . Plaintiff's Objections Regarding Shell's Status as a Joint
Employer The Magistrate Judge concluded that Shell was neither a "single
18
AO 72A (Rev.sle2)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 19 of 25
employer" nor a "joint employer ." Further, the Magistrate Judge concluded that the question whether Shell and Protiva were involved in a "joint venture," which both parties, but particularly the
defendants, had focused on, was not the question to be asked in a Title VII case, as the latter looks to who is an "employer ." (R&R [72] at 31 n .22) The plaintiff does not appear to be objecting to the Magistrate Judge's observation about the inaptness of the concept of joint venture to the analysis here . The Magistrate Judge's discussion of the "single employer" theory was thorough and well-
reasoned, and the plaintiff likewise does not appear to object to the Magistrate Judge's conclusion that Shell was not a single employer ." Accordingly, the Court adopts the Magistrate Judge's conclusion that
Shell and Protiva are not a single employer and that their purported
10 The Eleventh Circuit applies a non-dispositive four-factor test to determine whether multiple entities should be treated as a single employer . McKenzie v . Davenport-Harris Funeral Home, 834 F .2d 930, 933 (11th Cir . 1987) . The four factors are : (1) interrelation of operations ; (2) centralized control over labor relations ; (3) common management ; and (4) common ownership and financial control . Id .
Here, plaintiff argues that defendant acted as her employer because "Shell retained almost totall control over the station's employees ." (Opp'n to R & R" at 2 .) Because plaintiff does not raise any argument regarding Shell's interrelation, common ownership or financial control, the Court concludes that plaintiff did not abject to the Magistrate Judge's ruling regarding Shell's status as a single employer . Furthermore, the Court has reviewed the record and agrees that Protiva and Shell do not appear to meet the requirements of interrelationship, as set forth in McKenzie v . Davenport-Harris Funeral Home, 834 F .2d at 933 .
19
AO 72A (Rav. 8182)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 20 of 25

status as joint ventures does not determine whether Shell is an

employer, for title VII purposes .

Plaintiff does object to the Magistrate Judge's conclusion that

Shell was not a joint employer, however . Plaintiff asserts that

Shell maintained a sufficient amount of control over the working

conditions of employees at the Ringgold Station to be considered a

joint employer . (Opp'n to R & R at 2 "Shell retained almost total

control over the station's employees .") Plaintiff cites the

following provisions from the CORO Agreement and Lease Agreement--the

two Agreements that governed the relationship between Shell and

Protiva- - as evidence that defendant maintained a sufficient amount of

control over the working conditions to be deemed her employer :

•

A requirement that Shell employees be able to communicate

in English . (CORD Agreement § 11(a) .)

•

A requirement that all employees pass a pre-employment drug

screening test . (Lease § 13 .)

•

A requirement that all Shell facilities receive proper

training with respect to the practices contained in the

Site Operations Manual . (Site Operations Manual "Shell

Brands & CVP" ; "Def .'s Resp . to PSAMF" [71] at :IH 36 .)

•

A requirement that Protiva "[k]eep the [Ringgold Station]

neat, clean, safe and orderly" and that employees "[w]ear

neat and clean uniforms and nametags of a type and style

designated by [Motiva]", and obtained from a vendor

approved by [Motiva] ." (CORO Agreement, § 5(c) (3) and

(4) .)

•

A prohibition on employees smoking in any area except those

designated by Motiva as a smoking area . (Id . § 11(g) .)

A requirement that Motiva inspect Protiva's locations on a

11 For purposes of this discussion, the Court uses "Shell" and "Motiva" interchangeably .
20

AO 72A (A ev. 81 B2 )

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 21 of 25

AO 72A ( Rev$l82)

regular basis to ensure compliance with the company's

standards as set forth in part in the "blue book"

Operations Manual . (Def .'s Resp . to PSAMF at 5[ 24 .)

•

Requirements that employees in the Ringgold Station

"[r]ender fair, courteous and efficient service to retail customers . . ." (CORO Agreement, § 5(c)(1)) ; that employees follow a three-step recovery process so that customers leave happy ; and that employees follow certain instructions

when the "power is down" or when fuel dispensers are "out of product ." (PSAMF at 9[ 38 ; Def .'s Resp . to PSAMF at 9[ 38 .)

•

A prohibition against installing signs on or visible from

the exterior without Mativa's prior approval . . (Lease §

7(a) .)

•

A requirement that Protiva provide the services specified

in the CORO Agreement 24 hours a day, seven days per week .

(CORO Agreement § 5(a) .)

•

A requirement that Protiva perform all maintenance required

by the Agreement, and that Motiva perform all maintenance

deemed necessary or desirable . (Id . at § 13(a) .)

•

A requirement that Motive pay all real estate taxes and

sales and excise taxes on the Motor Fuel products sold .

(Id .)

•

A provision in the Operations Manual providing for a

regular on-site "Evaluation Process", which monitors the

transaction between the customer and the store employees . (Site Operations Manual, "Shell Brand Standards & CVP," p . 1 . ; Deb .'s Resp, to PSAMF at 1 37 .) (Likewise, defendant concedes that it inspected the covered locations on a

quarterly basis .) (Def .'s Resp . to PSAMF at .9[ 43 .)

•

A requirement that Protiva employees and individuals on the

company's premises, be subject to reasonable searches .

(Id . at § 11(f) .)

•

A requirement that Protiva provide access to Motiva to

examine and copy employee records "that may in [Motiva's]

opinion be relevant to determining [Protiva's] compliance

with the [Fair Labor Standards Act] and/or [the Employer

Compliance Program] at any time . (Def .'s Resp . to PSAMF at

9[ 30 .)

•

A provision allowing Shell to delete or add covered

locations in its sole discretion, on thirty days' notice

and subject to certain conditions . (CORO Agreement §

1 (b) . .)

Although plaintiff acknowledges that Protiva has the most direct

21

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 22 of 25
day-to-day supervisory influence over its employees, plaintiff c o ntends th a t Shell's p o wer t o c on tr o l th e terms a nd c ond i ti o ns o f these employees is not insignificant . Plaintiff notes that Shell has certain training requirements and d i rectives regard i ng an employee's ) i n t eraction with customers, including scripted responses to certa i n customer questions . Plaintiff fur t her notes that Shell has reserved to itself the right to conduct a regular, on-site evaluation process in wh i ch it mon it ors performance by store employees and that, in fact, Shell does regularly inspect the store . In addit i on, Shell requ i res that Protiva make its employee records ava i lable to Shell so that the latter can gauge compl i ance w i th the FLSA and the Employer C o mpliance Pr o gram at a n y time . F inally, alth ough P ro tiv a has the sole right to hire and a right t o terminate employees, - Shell has t he right to insist that Protiva terminate promptly any employee t hat . Shell des i gnates and for which cause exists to support the termination .
As th i s Court noted in its Order of March 28, 2007 in the related case, Taylor v . Texaco, Inc ., 4 : 04-CV-212-JEC, it may well turn out that this Court ultimately concludes that Shell exerted insufficient control over Protiva employees to warrant a conclusion that it was a joint employer . Taylor Order, Id . at 12-15 . Yet, as noted in the Taylor order, Shell has not even attempted to respond to the plaintiff's argument that, based on the above factors,
22
AO 72A (Rev. 8182)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 23 of 25
Shell exerted sufficient control to be deemed a joint employer . Instead, in reply to these above-cited arguments made by plaintiff in her response brief, Shell ignored these arguments and just keeps talking about whether Shell was a joint venturer with Protiva .
The Magistrate Judge did a commendable job of researching and analyzing a ground for summary judgment with scant assistance from the party that had advanced the ground as a basis for summary judgment . As noted, this Court may well ultimately agree with the Magistrate Judge's conclusion . Yet, as this Court has decided to deny summary judgment on the merits of the Title VII claim, there will be a trial, unless settlement first occurs . Given the weakness of Shell's briefed position on this point and its failure to dispute plaintiff's arguments that Shell was a joint employer, it would be imprudent to allow Shell to be removed as a defendant from the action at this point, as a contrary decision by an appellate court that Shell was a joint employer would then require a second trial . Accordingly, the Court DENIES WITHOUT PREJUDICE Shell's motion for summary judgment on the ground that it was not an employer of the plaintiff's ."
1 ~ Another problem arises, however, that is totally the creation of plaintiff . That is, although this Court and the Magistrate Judge have referred to "Shell" as the party that contracted with Protiva, in reality, the contracting entity was Motiva, which is a limited liability company that Shell utilizes to engage in contracts with station operators . (Motiva is, itself, a refining and marketing
23
AO 72A (Rev. sls2)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 24 of 25
CONCLUSION For the foregoing reasons, the Court ADOPTS in part and DECLINES in part the Magistrate Judge's Final Report and Recommendation [72] . Instead, the Court GRANTS in part and DENIES in part the defendant's Motion for Summary Judgment [38] . Specifically, the Court DENIES Defendants Shell Oil and Texaco's Motion for Summary Judgment [38] as to their status as an employer . The Court DENIES all defendants' Motion for Summary Judgment as to plaintiff's § 1981 and Title VII claims alleging disparate treatment as a result of plaintiff's demotion ." The Court GRANT S all defendants' Motion for Summary Judgment as to plaintiff's retaliation "claim ." The Court will issue a separate Order concerning a trial date, the date by which the pretrial order must be filed, and a date, and process, by which the parties determine if the case can be resolved
joint venture between Shell and affiliates of an entity called Saudi Aramco} .
The plaintiff did not name Motiva as a defendant in• the action, however, and the Magistrate Judge denied an untimely motion by plaintiff to add Motiva as a defendant . Accordingly, even if Shel l -remains in the action through verdict, there is uncertainty about the plaintiff's ability to obtain a viable judgment against Shell, given that it was not the entity that contracted with Protiva .
1 3 As noted, the individual defendants may remain as defendants only as to the § 1981 claim .
24
AO 72A (ReY.ars2)

Case 4:04-cv-00205-JEC Document 76 Filed 03/28/07 Page 25 of 25
through a settlement . SO ORDERED, this L3 ~ day of March, 2007 .
a, 4,"~
J IE E . GAR N ES ITED STATES DISTRICT JUDGE
25
AO 72A

 
 Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 1 of 10
4months, CLOSED
U.S. District Court Northern District of Georgia (Rome) CIVIL DOCKET FOR CASE #: 4:04−cv−00205−JEC

Koger v. Texaco, Inc. et al Assigned to: Judge Julie E. Carnes Case: 1:04−cv−02060−TWT
Case in other court: Superior Court of Catoosa County, 04cv00797
Cause: 28:1441 Petition for Removal− Civil Rights Act
Plaintiff

Date Filed: 08/30/2004 Date Terminated: 08/09/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Lejean Koger Individually and on behalf of a class of similarly situated persons

represented by Bonny Elizabeth Dickson Shumacker Witt Gaither &Whitaker 736 Market Street Suite 1100 Chattanooga, TN 37402 423−425−7000 Email: edickson@swgwlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia D. Hall Franklin, Cooper &Marcus 837 Fort Wood Street Chattanooga, TN 37403 423−756−3596 Email: chall@fcmlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank P. Pinchak Shumacker Witt Gaither &Whitaker 736 Market Street Suite 1100 Chattanooga, TN 37402 423−425−7000 Email: fpinchak@bdhlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Horace Kimbrell Sawyer , III Sawyer &Sawyer 7587 Nashville Street Ringgold, GA 30763 706−965−7580 Email: hksawyer@catt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Texaco, Inc.

represented by Eric John Marlett McGahren, Gaskill &York, LLC 6171 Crooked Creek Road Suite A Peachtree Corners, GA 30092 770−729−1779 Email: emarlett@mgylaw.com TERMINATED: 06/13/2008

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 2 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Francis McGahren McGahren, Gaskill &York, LLC Suite A 6171 Crooked Creek Road Peachtree Corners, GA 30092 770−729−1779 Email: mmcgahren@mgylaw.com TERMINATED: 10/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Shell Oil Company

represented by Eric John Marlett (See above for address) TERMINATED: 06/13/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Francis McGahren (See above for address) TERMINATED: 10/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Protiva, Inc.

represented by Eric John Marlett (See above for address) TERMINATED: 06/13/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Francis McGahren (See above for address) TERMINATED: 10/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Mashud M. Reza

represented by Eric John Marlett (See above for address) TERMINATED: 06/13/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Francis McGahren (See above for address) TERMINATED: 10/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Babul Islam and all other persons and entities acting in concert with the named Defendants,

represented by Eric John Marlett (See above for address) TERMINATED: 06/13/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Francis McGahren (See above for address)

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 3 of 10
TERMINATED: 10/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/30/2004
08/30/2004
02/02/2005 02/04/2005
02/25/2005 03/03/2005 03/03/2005 03/17/2005 03/17/2005 03/17/2005 03/17/2005 03/17/2005 04/29/2005
05/13/2005 05/13/2005 05/18/2005 06/06/2005 06/08/2005 06/24/2005

# Docket Text
1 NOTICE OF REMOVAL with COMPLAINT, SUMMONS, ENTRY of SERVICE(Pretrial instructions attached to service copies and returned to attorney for service.) (Filing fee $ 150 receipt number 364555), filed by dfts Babul Islam, Protiva, Inc., Mashud M. Reza, Shell Oil Company, Texaco, Inc..(jta) (Entered: 08/31/2004)
2 ANSWER to Complaint by dfts Babul Islam, Protiva, Inc., Mashud M. Reza, Shell Oil Company, and Texaco, Inc. Discovery ends on 1/27/2005.(jta) (Entered: 08/31/2004)
3 MOTION for Leave to File Amended Complaint with Brief In Support by Lejean Koger. (Attachments: # 1 proposed amended cmp)(jta) (Entered: 02/04/2005)
4 ORDER OF RECUSAL. Judge Harold L. Murphy recused. Case reassigned to Judge Thomas W. Thrash, Jr for all further proceedings. Signed by Judge Harold L. Murphy on 02/04/05. (jta) (Entered: 02/07/2005)
Submission of Pla's 3 MOTION for Leave to File Amended Complaint, to District Judge Thomas W. Thrash. (bjj) (Entered: 02/25/2005)
5 ORDER granting 3 Motion for Leave to File amended complaint. Signed by Judge Thomas W. Thrash Jr. on 3/2/05. (ss) (Entered: 03/03/2005)
6 AMENDED COMPLAINT against all defendants filed by pla Lejean Koger.(jta) (Entered: 03/07/2005)
7 Defendants' ANSWER to Amended Complaint by Protiva, Inc..(McGahren, Matthew) (Entered: 03/17/2005)
8 Defendants' ANSWER to Amended Complaint by Babul Islam.(McGahren, Matthew) (Entered: 03/17/2005)
9 Defendants' ANSWER to Amended Complaint by Mashud M. Reza.(McGahren, Matthew) (Entered: 03/17/2005)
10 Defendants' ANSWER to Amended Complaint by Shell Oil Company.(McGahren, Matthew) (Entered: 03/17/2005)
11 Defendants' ANSWER to Amended Complaint by Texaco, Inc..(McGahren, Matthew) (Entered: 03/17/2005)
12 CERTIFICATE OF SERVICE as to RESPONSES TO PLA'S FIRST INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS by dfts Protiva, Inc., Mashud M. Reza,and Babul Islam. (jta) (Entered: 05/02/2005)
13 Joint Certificate of Interested Persons by parties. (jta) (Entered: 05/16/2005)
14 JOINT PRELIMINARY REPORT AND DISCOVERY SCHEDULE filed by parties. (jta) (Entered: 05/16/2005)
Remark re 13 Certificate of Interested Persons, OK as to TWT. (ss) (Entered: 05/18/2005)
15 Initial Disclosures by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc..(Elchahal, Marlo) (Entered: 06/06/2005)
16 Initial Disclosures by pla Lejean Koger.(jta) (Entered: 06/13/2005)
17 CERTIFICATE OF SERVICE by Protiva, Inc. for Defendant Protiva Inc.'s First Interrogatories and First Request for Production of Documents to Plaintiff Koger (Elchahal, Marlo) (Entered: 06/24/2005)

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 4 of 10

08/03/2005
08/10/2005 08/10/2005 08/25/2005 08/25/2005 08/30/2005 09/08/2005
09/22/2005
09/30/2005 10/05/2005
10/11/2005 10/19/2005 11/30/2005 12/22/2005 01/11/2006 03/03/2006
03/06/2006

18 CERTIFICATE OF SERVICE as to PLA'S RESPONSES TO DFT PROVITA INC'S FIRST REQUEST FOR PRODUCTION and PLA'S ANSWERS TO DFT PROVITA, INC'S FIRST INTERROGATORIES filed by pla Lejean Koger. (jta) (Entered: 08/03/2005)
19 APPLICATION for Admission Pro Hac Vice for Frank P. Pinchak to appear o/b/o Lejean Koger.Filing Fee received $150.00,; Receipt #365085. (jta) (Entered: 08/11/2005)
20 APPLICATION for Admission Pro Hac Vice of Bonny Elizabeth Dickson to appear o/b/o Lejean Koger.Filing Fee received $150.00, Receipt #365086. (jta) Modified on 8/12/2005 to edit text(jta). (Entered: 08/11/2005)
21 ORDER granting 20 Application for Admission Pro Hac Vice of Bonny Elizabeth Dickson to appear o/b/o pla. Signed by Judge Thomas W. Thrash Jr. on 08/22/05. (jta) (Entered: 08/25/2005)
22 ORDER granting 19 Application for Admission Pro Hac Vice of Frank P. Pinchak to appear o/b/o pla. Signed by Judge Thomas W. Thrash Jr. on 08/22/05. (jta) (Entered: 08/25/2005)
23 NOTICE of TELECONFERENCE Hearing: In Chambers Conference set for 9/8/2005 10:00 AM before Judge Thomas W. Thrash Jr., counsel for plaintiff to originate call. (ss) (Entered: 08/30/2005)
29 Minute Entry for proceedings held before Judge Thomas W. Thrash Jr.: Status Conference held on 9/8/2005 regarding Court's possible need to recuse. Counsel unsure of party relationship that Court had concerns about. Counsel to advise Court of their position. (Court Reporter Darla Coulter.)(ddm) (Entered: 10/31/2005)
24 ORDER OF RECUSAL. Judge Thomas W. Thrash, Jr. recused pursuant to 28 U.S.C. 455(b)(4). Case reassigned to Judge Julie E. Carnes for all further proceedings. Signed by Judge Thomas W. Thrash Jr. on 9/22/05. (jta) (Entered: 09/28/2005)
25 NOTICE directing the parties to submit the proposed consolidated pretrial order by FRIDAY, 10/14/05. (Attachments: # 1 Civil Trial Instructions)(kb) (Entered: 09/30/2005)
26 Joint MOTION for Extension of Time to Complete Discovery with Brief In Support by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Memorandum# 2)(Elchahal, Marlo) (Entered: 10/05/2005)
27 ORDER granting 26 Motion for Extension of Time to Complete Discovery Discovery ends on MONDAY, 1/9/2006. Signed by Judge Julie E. Carnes on 10/07/05. (kb) (Entered: 10/11/2005)
28 NOTICE to Take Deposition of Protiva, Inc. filed by Lejean Koger (Dickson, Bonny) (Entered: 10/19/2005)
30 Joint MOTION for Extension of Time to Complete Discovery by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Elchahal, Marlo) (Entered: 11/30/2005)
Submission of Defts' 30 Joint MOTION for Extension of Time to Complete Discovery, to District Judge Julie E. Carnes. (bjj) (Entered: 12/22/2005)
31 ORDER granting 30 Motion for Extension of Time to Complete Discovery Discovery ends on FRIDAY, 3/10/2006. FINAL EXTENSION. Signed by Judge Julie E. Carnes on 1/10/06. (kb) (Entered: 01/11/2006)
32 Final MOTION for Extension of Time to Complete Discovery by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Certificate of Service)(McGahren, Matthew) (Entered: 03/03/2006)
Submission of 32 Final MOTION for Extension of Time to Complete Discovery, submitted to District Judge Julie E. Carnes. (jta) (Entered: 03/06/2006)

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 5 of 10

03/09/2006
03/10/2006 03/20/2006 04/19/2006 05/03/2006 05/04/2006 05/05/2006
05/05/2006 05/05/2006 05/06/2006 05/06/2006
05/07/2006 05/19/2006 05/25/2006 06/01/2006

33 ORDER denying 32 Motion for Extension of Time to Complete Discovery. The parties may pursue voluntary discovery if they wish. The time for filing summary judgment motions is extended to FRIDAY, 5/5/06 . Signed by Judge Julie E. Carnes on 03/09/06. (Attachments: # 1 Civil Trial Instructions) (kb) (Entered: 03/09/2006)
34 MOTION to Compel Discovery with Brief In Support by Lejean Koger. (Attachments: # 1 Exhibit A − E to Motion to Compel# 2 Brief In Support of Motion to Compel# 3 Supplement Rule 37 Certification)(Dickson, Bonny) (Entered: 03/10/2006)
35 RESPONSE re 34 MOTION to Compel Discovery filed by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (McGahren, Matthew) (Entered: 03/20/2006)
Submission of Pla's 34 MOTION to Compel Discovery, to District Judge Julie E. Carnes. (bjj) (Entered: 04/19/2006)
36 NOTICE Of Filing Original Deposition Transcript of Plaintiff Koger by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc. (Manually Filed) (McGahren, Matthew) (Entered: 05/03/2006)
37 DEPOSITION (Telephone) of LEJEAN KOGER ROGERS taken on 3/9/06 by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc..(jta) (Entered: 05/04/2006)
38 MOTION for Summary Judgment by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Brief # 2 Statement of Material Facts)(McGahren, Matthew) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 05/05/2006)
39 AFFIDAVIT re 38 MOTION for Summary Judgment by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Affidavit)(McGahren, Matthew) (Entered: 05/05/2006)
40 REDACTION to 38 MOTION for Summary Judgment Lease Agreement by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (McGahren, Matthew) (Entered: 05/06/2006)
41 REDACTION to 38 MOTION for Summary Judgment CORO Agreement by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (McGahren, Matthew) (Entered: 05/06/2006)
42 DEPOSITION of Lejean Koger Rogers taken on 3/9/06 by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Exhibit Depo Part 2# 2 Exhibit Depo Part 3# 3 Exhibit Depo Part 4# 4 Exhibit Depo Part 5# 5 Exhibit Depo Exhibit 2)(McGahren, Matthew) (Entered: 05/06/2006)
43 MOTION for Order Determining Timely Filing or Granting Leave to Supplement by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Affidavit Declaration of Eric Marlett)(McGahren, Matthew) (Entered: 05/07/2006)
44 Joint MOTION for Extension of Time and Determination of Timeliness by Lejean Koger. (Attachments: # 1)(Dickson, Bonny) (Entered: 05/19/2006)
45 ORDER granting re 44 Joint MOTION for Extension of Time through FRIDAY, 6/16/06 to respond to 38 MOTION for Summary Judgment . Signed by Judge Julie E. Carnes on 05/25/06. (kb) (Entered: 05/25/2006)
46 MOTION to Amend 6 Amended Complaint with Brief In Support by Lejean Koger. (Attachments: # 1 Exhibit A to Motion to Amend# 2 Brief Memorandum of Law in Support of Motion to Amend# 3 Exhibit A to Brief in Support of Motion to Amend# 4 Exhibit B to Brief in Support of Motion to Amend# 5 Exhibit C to Brief in Support of Motion to Amend# 6 Exhibit D to Brief in Support of Motion to Amend# 7 Exhibit E to Brief in Support of Motion to Amend# 8 Exhibit F to Brief in Support of Motion to Amend# 9 Exhibit G to Brief in Support of Motion to

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 6 of 10

06/08/2006 06/08/2006 06/08/2006
06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006
06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/16/2006 06/19/2006 06/20/2006 06/26/2006
06/26/2006

Amend# 10 Exhibit H to Brief in Support of Motion to Amend)(Dickson, Bonny) (Entered: 06/01/2006)
Submission of 43 MOTION for Order Determining Timely Filing or Granting Leave to Supplement, submitted to District Judge Julie E. Carnes. (dob) (Entered: 06/08/2006)
47 MOTION to Strike Affidavit of Henry R. Miller by Lejean Koger. (Dickson, Bonny) (Entered: 06/08/2006)
48 RESPONSE in Support re 47 MOTION to Strike Affidavit of Henry R. Miller filed by Lejean Koger. (Attachments: # 1 Exhibit A# 2 Exhibit B # 3 Exhibit C)(Dickson, Bonny) Modified on 6/9/2006 to name attachment(jta). (Entered: 06/08/2006)
49 RESPONSE re 38 MOTION for Summary Judgment filed by Lejean Koger. (Dickson, Bonny) (Entered: 06/16/2006)
50 NOTICE Of Filing by Lejean Koger Notice of Manual Filing (transcript of Babul Islam) (Dickson, Bonny) (Entered: 06/16/2006)
51 NOTICE Of Filing by Lejean Koger re 49 Response to Motion Notice of Manual Filing (transcript of Mojib Rahman) (Dickson, Bonny) (Entered: 06/16/2006)
52 NOTICE Of Filing by Lejean Koger re 49 Response to Motion Notice of Manual Filing (transcript of Robin Israil) (Dickson, Bonny) (Entered: 06/16/2006)
53 Statement of Material Facts re 38 MOTION for Summary Judgment Statement of Additional Material Facts that Make Summary Judgment Inappropriate filed by Lejean Koger. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E−1# 6 Exhibit E−2# 7 Exhibit E−3# 8 Exhibit E−4# 9 Exhibit E−5# 10 Exhibit E−6# 11 Exhibit E−7# 12 Exhibit E−8# 13 Exhibit E−9# 14 Exhibit E−10# 15 Exhibit F−1# 16 Exhibit F−2# 17 Exhibit F−3# 18 Exhibit G# 19 Exhibit H# 20 Exhibit I# 21 Exhibit J# 22 Exhibit K# 23 Exhibit L# 24 Exhibit M)(Dickson, Bonny) (Entered: 06/16/2006)
54 Response to Statement of Material Facts re 38 MOTION for Summary Judgment filed by Lejean Koger. (Dickson, Bonny) (Entered: 06/16/2006)
55 MOTION for Leave to File Supplement to Plaintiff's Response to Motion for Summary Judgmentby Lejean Koger. (Dickson, Bonny) (Entered: 06/16/2006)
56 DEPOSITION of Babul Islam taken on 03/14/2006 by Lejean Koger.(dob) (Entered: 06/19/2006)
57 DEPOSITION of Robin Israil taken on 03/09/2006 by Lejean Koger.(dob) (Entered: 06/19/2006)
58 DEPOSITION of Mojib Rahman taken on 11/14/2005 by Lejean Koger.(dob) (Entered: 06/19/2006)
59 RESPONSE in Opposition re 46 MOTION to Amend 6 Amended Complaint filed by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Brief)(McGahren, Matthew) (Entered: 06/19/2006)
Submission of pla's 46 MOTION to Amend 6 Amended Complaint, with dft's 59 response in opposition,submitted to District Judge Julie E. Carnes. (jta) (Entered: 06/20/2006)
60 RESPONSE re 55 MOTION for Leave to File Supplement to Plaintiff's Response to Motion for Summary Judgment filed by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (McGahren, Matthew) (Entered: 06/26/2006)
61 RESPONSE in Opposition re 47 MOTION to Strike Affidavit of Henry R. Miller filed by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Brief # 2 Affidavit Allen R. Girndt# 3 Exhibit Unpublished Opinion in Support #1# 4 Exhibit Unpublished Opinion in Support #2)(McGahren, Matthew) (Entered: 06/26/2006)

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 7 of 10

06/27/2006 06/27/2006 06/28/2006 06/29/2006 06/29/2006
06/29/2006 07/05/2006 07/06/2006
07/17/2006
07/18/2006 07/18/2006 07/20/2006 07/27/2006 07/28/2006

Submission of pla's 55 MOTION for Leave to File Supplement to Plaintiff's Response to Motion for Summary Judgment, with dfts' 60 Response to Motionsubmitted to District Judge Julie E. Carnes. (jta) (Entered: 06/27/2006)
Submission of pla's 47 MOTION to Strike Affidavit of Henry R. Miller, with pla's 48 Response in Support of Motion, and dfts' 61 Response in Opposition to Motion submitted to District Judge Julie E. Carnes. (jta) (Entered: 06/27/2006)
62 Remaining File and Depos mailed to Atlanta Per Judge Carnes chambers. (jta) (Entered: 06/28/2006)
CASE REFERRED to Magistrate Judge Walter E. Johnson. (jta) (Entered: 06/29/2006)
Submission of pla's 47 MOTION to Strike Affidavit of Henry R. Miller, with pla's 48 Response in Support of Motion, and dfts' 61 Resp in Opp; pla's 55 MOTION for Leave to File Supplement to Plaintiff's Response to Motion for Summary Judgment, with dfts' 60 Response; pla's 34 MOTION to Compel Discovery, and pla's 46 MOTION to Amend 6 Amended Complaint, with dft's 59 response in oppositionsubmitted to Magistrate Judge Walter E. Johnson. (jta) (Entered: 06/29/2006)
63 Joint MOTION for Extension of Time to Reply to Plaintiff's Response to Motion for Summary Judgment re: 49 Response to Motion for Summary Judgment by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Text of Proposed Order)(McGahren, Matthew) (Entered: 06/29/2006)
64 ORDER granting 63 Joint Motion for Extension of Time for dfts to Reply to pla's 49 Response to dfts' 38 Motion for Summary Jgm until 7/17/06. Signed by Judge Walter E. Johnson on 7/5/06. (jta) (Entered: 07/05/2006)
65 ORDER GRANTING dfts' 43 Motion for Determination of Timely Filing, and GRANTING pla's 55 Motion for Leave to File Supplement to pla's Response to dft's 38 Motion for Summary Judgment. Plaintiff has up through and including 7/17/06, to file no more than a five (5) page Supplemental Response. Dfts shall have ten (10) days thereafter to file a Reply to pla's initial and supplemental responses. If necessary, dfts may exceed the Local Rule's limitation by three pages. Signed by Judge Walter E. Johnson on 7/6/06. (jta) Modified on 7/6/2006 to edit text(jta). (Entered: 07/06/2006)
66 ORDER granting 34 Plaintiff's Motion to Compel with respect to the remaining employee files for defendants' Georgia stores from July 2003 to present and ORDERS production of those files within 5 days of the entry of this order. Upon receipt of those files, plaintiff shall have 5 days to file a supplement to her response to defendants' Motion for Summary Judgment. Defendants shall have ten days thereafter to file their consolidated reply brief. The parties shall comply with the page limitations set forth in the Court's order 65 of July 6, 2006 . Signed by Magistrate Judge Walter E. Johnson on 7/17/06. (klb) (Entered: 07/17/2006)
67 ORDER denying 46 plaintiff's Motion to Amend complaint. Signed by Magistrate Judge Walter E. Johnson on 7/18/06. (klb) (Entered: 07/18/2006)
68 ORDER denying as moot 47 plaintiff's Motion to Strike affidavit of Henry R. Miller . Signed by Magistrate Judge Walter E. Johnson on 7/18/06. (klb) (Entered: 07/18/2006)
Submission of 65 Order re ddl for pla's supplemental resp and dft's reply to dft's 38 MOTION for Summary Judgment submitted to Magistrate Judge Walter E. Johnson. (jta) (Entered: 07/20/2006)
69 SUPPLEMENTAL RESPONSE to 38 MOTION for Summary Judgment, filed by Lejean Koger. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Dickson, Bonny) Modified on 7/28/2006 to edit text (bjj). (Entered: 07/27/2006)
70 NOTICE of Appearance by Matthew Francis McGahren on behalf of Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc. (McGahren,

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 8 of 10

07/28/2006 08/03/2006 08/10/2006 08/11/2006 08/11/2006 09/21/2006
09/29/2006 10/02/2006 01/03/2007 01/11/2007 01/12/2007 03/28/2007
05/21/2007
06/15/2007

Matthew) (Entered: 07/28/2006)
Notification of Docket Correction re 70 Notice of Appearance. This atty appearance is actually on behalf of Eric Marlett. Mr. Marlett has been added as atty for defts. (bjj) (Entered: 07/31/2006)
MOTIONS 38 MOTION for Summary Judgment REFERRED to Judge Magistrate Judge Johnson. (jta) (Entered: 08/03/2006)
71 REPLY to pla's 49 Response to dft's 38 Motion for Summary Jgm filed by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Statement of Material Facts Response# 2 Exhibit A)(McGahren, Matthew) Modified on 8/11/2006 to edit text(jta). (Entered: 08/10/2006)
Submission of dfts' 38 MOTION for Summary Judgment, with plas 49 Response to Motion, 53 Statement of Material Facts, 54 Response to Statement of Material Facts and dfts' 71 Reply to Response to Motionsubmitted to Magistrate Judge Walter E. Johnson. (jta) (Entered: 08/11/2006)
Notification of Docket Correction re 71 Reply to Response to Motion. Edited text to accurately reflect e−filed document. (jta) (Entered: 08/11/2006)
72 FINAL REPORT AND RECOMMENDATION −RECOMMENDING that Defendants' 38 MOTION for Summary Judgment be GRANTED. The clerk is directed to terminate the reference to the Magistrate Judge. With order for service. Signed by Magistrate Judge Walter E. Johnson on 9/21/06. (klb) (Entered: 09/21/2006)
73 OBJECTIONS to 72 Report and Recommendation filed by Lejean Koger. (Attachments: # 1 Memorandum of Law in Support of Objection)(Dickson, Bonny) (Entered: 09/29/2006)
Submission of 72 FINAL REPORT AND RECOMMENDATION re 38 MOTION for Summary Judgment with pla's 73 objections submitted to District Judge Julie E. Carnes. (jta) (Entered: 10/02/2006)
74 Mail Returned as Undeliverable. Mail sent to Eric John Marlett re 72 FINAL REPORT AND RECOMMENDATION re 38 MOTION for Summary Judgment filed by Texaco, Inc.,, Shell Oil Company,, Protiva, Inc.,, Mashud M. Reza,, Babul Islam, (klb) (Entered: 01/03/2007)
75 DOCUMENT FILED INCORRECTLYNOTICE by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc. Regarding Correct Contact Information for Defendants' Counsel (McGahren, Matthew) Modified on 1/12/2007 to restrict document access(jta). (Entered: 01/11/2007)
Notification of Docket Correction re 75 Notice (Other). Wrong event used. Attorney to re−file. (jta) (Entered: 01/12/2007)
76 ORDER and OPINION ADOPTING IN PART and DECLINING IN PART the 72 Magistrate Judge's Final Report and Recommendation. Instead, the Court GRANTS IN PART and DENIES IN PART 38 Defendants' Motion for Summary Judgment. The Court will issue a separate Order concerning a trial date, the date by which the pretrial order must be filed, and a date, and process, by which the parties determine if the case can be resolved through settlement. Signed by Judge Julie E. Carnes on 3/28/07. (ddm) (Entered: 03/28/2007)
77 ORDER directing the parties to confer, in an effort to settle this action, within THIRTY (30) days. If the case is not settled, the parties are directed to submit, within THIRTY (30) days the Proposed Consolidated Pretrial Order, which requires JOINT voir dire questions. The parties are directed to consider consenting to a trial before a magistrate judge. Signed by Judge Julie E. Carnes on 05/21/07. (Attachments: # 1 CIVIL TRIAL INSTRUCTIONS)(kb) (Entered: 05/21/2007)
78 Joint MOTION for Extension of Time to Confer re: 77 Order, by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Text of Proposed Order)(McGahren, Matthew) (Entered: 06/15/2007)

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 9 of 10

06/26/2007
06/26/2007
06/26/2007 06/29/2007 07/20/2007 07/20/2007 08/01/2007 08/03/2007 08/03/2007 08/09/2007
08/09/2007 08/10/2007 08/24/2007 10/22/2007

79 ORDER granting 78 Motion for Extension of Time through MONDAY, 8/13/07 to submit the Proposed Consolidated Pretrial Order, which requires JOINT voir dire questions and through FRIDAY, 7/20/07 to confer regarding settlement of this matter. Signed by Judge Julie E. Carnes on 06/25/07. (Attachments: # 1 CIVIL TRIAL INSTRUCTIONS) (kb) (Entered: 06/26/2007)
80 NOTICE setting Trial:Jury Trial set for MONDAY, 8/27/2007 09:30 AM in Courtroom 311 before Judge Julie E. Carnes. The proposed Consolidated Pretrial Order, which requires JOINT voir dire questions, the four courtesy copies of the 15 requests to charge and any motions in limine are due MONDAY, 8/13/07. The pretrial/settlement conference is scheduled for THURSDAY, 8/23/07 2:00 PM, in Chambers 2167 (Atlanta). The written obbjections to each other's requests to charge are due THURSDAY, 8/23/07. (Attachments: # 1 CIVIL TRIAL INSTRUCTIONS)(kb) (Entered: 06/26/2007)
81 Letter to counsel attaching the Court's Pattern Charges used in most civil cases re 80 Notice setting Trial. (Attachments: # 1 Pattern Charges)(kb) (Entered: 06/26/2007)
82 Mail Returned as Undeliverable. Mail sent to Eric John Marlett regarding 77 Order returned via USPS marked "Forwarding Time Expired". (ddm) (Entered: 07/05/2007)
83 NOTICE of Change of Address for Matthew Francis McGahren, counsel for Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc. (McGahren, Matthew) (Entered: 07/20/2007)
84 NOTICE by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc. Notice of Intent to File Motion to Withdraw (McGahren, Matthew) (Entered: 07/20/2007)
85 ORDER scheduling the settlement/pretrial conference for FRIDAY, 8/10/07, 10:30 A.M., CHAMBERS 2167. The pretrial conference date of 8/23/07 is CANCELLED. Signed by Judge Julie E. Carnes on 08/01/07. (kb)R (Entered: 08/01/2007)
86 MOTION to Withdraw Matthew Francis McGahren as Attorneyby Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Exhibit A)(McGahren, Matthew) (Entered: 08/03/2007)
87 Amended MOTION to Withdraw Matthew Francis McGahren as Attorneyby Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (Attachments: # 1 Exhibit A)(McGahren, Matthew) (Entered: 08/03/2007)
88 ORDER ADMINISTRATIVELY TERMINATING this action to the right of either party, within thirty (30) days to reopen the action if settlement is not consummated.The settlement conference scheduled for August 10, 2007 and the trial date of August 27, 2007 are CANCELLED. The Court will rule on attorney Matthew F. McGahren and Eric J. Marlett's 86 Motion and 87 Amended Motion to Withdraw as counsel for the defendants upon receipt of the settlement documentation.The Clerk is directed to ADMINISTRATIVELY TERMINATE this action Signed by Judge Julie E. Carnes on 8/9/07. (ddm) (Entered: 08/09/2007)
Civil Case Terminated. (ddm) (Entered: 08/09/2007)
89 Letter from plaintiff and defendant's attorneys re settlement and cancellation of pretrial conference set for Friday, August 10, 2007 (ryc) (Entered: 08/13/2007)
Submission of 86 Motion to Withdraw Matthew Francis McGahren and 87 Amended MOTION to Withdraw Matthew Francis McGahren as Attorney with 89 Settlement Letter submitted to District Judge Julie E. Carnes. (jta) (Entered: 08/24/2007)
90 ORDER GRANTING 87 AMENDED Motion to Withdraw as Attorney. Attorney Matthew Francis McGahren terminated for defendants. Signed by Judge Julie E. Carnes on 10/22/07. (ryc) (Entered: 10/22/2007)

Case: 4:04-cv-205 As of: 07/29/2010 10:32 AM EDT 10 of 10

11/05/2007 12/27/2007 06/13/2008

91 MOTION for Reconsideration re 90 Order on Motion to Withdraw as Attorney to Modify and Withdraw Eric J. Marlett by Shell Oil Company, Protiva, Inc., Mashud M. Reza, Babul Islam, Texaco, Inc.. (McGahren, Matthew) (Entered: 11/05/2007)
Submission of 91 MOTION for Reconsideration re 90 Order on Motion to Withdraw as Attorney to Modify and Withdraw Eric J. Marlett, submitted to District Judge Julie E. Carnes. (jta) (Entered: 12/27/2007)
92 ORDER GRANTING 91 Motion for Reconsideration. IT IS HEREBY ORDERED that defendants' Motion for Reconsideration and Modification of Order Granting Amended Motion to Withdraw 91 is GRANTED. Attorney Eric J. Marlett shall be allowed to withdraw as defendants' counsel. The case is closed. Signed by Judge Julie E. Carnes on 06/13/08. (fap) (Entered: 06/13/2008)