Case 1:08-cv-00706-RJA-JJM Document 1 Filed 09/23/08 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

Civil Action No.

-against-
STERLING JEWELERS INC.,
Defendant. ---------------------------------------------------------------)(

COMPLAINT
-4-- JURY TRIAL DEMANDED 08 c V 0706/,
08 CV .. , ••

NATURE OF THE ACTION

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

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

appropriate relief to a class of employees who were adversely affected by such unlawful

practices. Plaintiff Equal Employment Opportunity Commission (the "Commission") alleges

that Defendant Sterling Jewelers Inc. ("Sterling") pays its female retail sales employees less than

male employees performing substantially equal work and denies female employees promotional

opportunities for which they are qualified. As alleged with greater particularity in paragraphs 6-

11 below, Sterling's promotion and compensation policies have had the effect and have been

undertaken with the purpose of denying promotional opportunities and equal compensation to

qualified female employees because of their sex.

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 Sections 706(f)( 1) and (3)

and 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §§ 2000e-5(f)(I)

Case 1:08-cv-00706-RJA-JJM Document 1 Filed 09/23/08 Page 2 of 5

and (3) and -6. ("Title VII"). This action is also authorized and instituted pursuant to

Section 102 of Title I of the Civil Rights Act of 1991,42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawful were and are now being

committed within the jurisdiction of the United States District Court for Western District of New

York.

PARTIES

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

United States of America charged with the administration, interpretation and enforcement of

Title VII, and is expressly authorized to bring this action by Sections 706(f)(1) and (3) and 707

of Title VII, 42 U.S.C. §§ 2000e-5(f)(I) and (3) and -6.

4. At all relevant times, Sterling has continuously been a Delaware corporation,

doing business in the State of New York and the City of Buffalo, and has continuously had at

least 15 employees.

5. At all relevant times, Sterling 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 TITLE VII CLAIMS

6. More than thirty days prior to the institution of this lawsuit, Laryssa Jock filed a

charge with the Commission alleging violations of Title VII by Sterling. Charges alleging

similar violations by Sterling were subsequently filed by Jacquelyn Boyle, Christy Davies, Lisa

Follett, Marie House, Carol King, Denise Maddox, Lisa McConnell, Carolyn Morse, Gloria

Pagan, Judy Reed, Linda Rhodes, Khristina Rodrigues, Sharon Scroggins, Nina Shahmirzadi,

Tana Shiver, Leighla Smith, Dawn Souto-Coons, and Marie Wolf (collectively "Charging

Parties"). All conditions precedent to the institution of this lawsuit have been fulfilled.

2

Case 1:08-cv-00706-RJA-JJM Document 1 Filed 09/23/08 Page 3 of 5
7. Since at least January I, 2003, Sterling has engaged in unlawful employment practices throughout its stores nationwide in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), as detailed below:
(a) Sterling has intentionally discriminated against female retail sales employees by maintaining a system for making promotion and compensation decisions that is excessively subjective and through which Sterling has permitted or encouraged managers to deny female employees equal access to promotion opportunities and the same compensation paid to similarly situated male employees.
8. Since at least January 1, 2003, Sterling has engaged in unlawful employment practices throughout its stores nationwide in violation of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k), as detailed below:
(a) Sterling has maintained a system for making promotion and compensation decisions that is excessively subjective and that has a disparate impact on female retail sales employees, and that is not consistent with business necessity, or if it could be so justified, less discriminatory alternatives exist that could equally serve that necessity.
9. The effect of the practices complained of in paragraphs 7-8 above has been to deprive Charging Parties and other similarly situated female retail sales employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their sex.
10. The unlawful employment practices complained of in paragraphs 7-8 above were and are intentional.
II. The unlawful employment practices complained of in paragraphs 7-8 above were and are done with malice or with reckless indifference to the federally protected rights of Charging Parties and Sterling's other female retail sales employees.
3

Case 1:08-cv-00706-RJA-JJM Document 1 Filed 09/23/08 Page 4 of 5
PRAYER FOR RELIEF Wherefore, the Commission requests that this Court: A. Grant a permanent injunction enjoining Sterling, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in sex discrimination as described herein. B. Order Sterling to institute and carry out policies, practices and programs that provide equal employment opportunities for women and that eradicate the effects of its past and present unlawful employment practices. C. Order Sterling to make whole Charging Parties and other female retail sales employees, by providing appropriate backpay with prejudgment interest, in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to pay increases and/or promotions of Charging Parties and other female retail sales employees. D. Order Sterling to make whole Charging Parties and other female retail sales employees by providing compensation for past and future pecuniary losses resulting from the unlawful practices described in paragraphs 7-8 above, including relocation expenses, job search expenses, and medical expenses not covered by the Employer's employee benefit plan, in amounts to be determined at trial. E. Order Sterling to make whole Charging Parties and other female retail sales employees by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 7-8 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
4

Case 1:08-cv-00706-RJA-JJM Document 1 Filed 09/23/08 Page 5 of 5
F. Order Sterling to pay Charging Parties and other female retail sales employees punitive damages for its malicious and/or reckless conduct described in paragraphs 7-8 above, in an amount to be determined at trial.
G. Grant such further relief as this Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint. Ronald S. Cooper General Counsel James 1. Lee Deputy General Counsel Gwendolyn Y. Reams Associate General Counsel Elizabeth Grossman Regional Attorney elizabeth.grossman@eeoc.gov Jacqueline McNair Regional Attorney jacqueline.mcnair@eeoc.gov Debra Lawrence Supervisory Trial Attorney de .lawrence@eeoc. ov
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, New York District Office 33 Whitehall St, 5th Floor New York NY 10004 (212) 336-3690 margaret.malloy@eeoc.gov
5

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.

STERLING JEWELERS INC.,

Defendant.

DECISION AND ORDER 08-CV-706A

Currently before the Court is a motion by plaintiff EEOC seeking to bifurcate discovery and trial of issues of liability and damages. For the reasons stated, the motion to bifurcate is granted in part and denied in part. Discovery and trial will be bifurcated as set forth below.
BACKGROUND The EEOC brought this action on September 23, 2008 on behalf of female employees currently or formerly employed by defendant Sterling Jewelers, Inc. (“Sterling”). Sterling is a retail jewelry company that operates approximately 1,400 stores nationwide, located in all 50 states. The EEOC asserts that since 2003, Sterling has engaged in a pattern or practice of discrimination by paying female employees less than male employees and denying them promotional opportunities. According to the complaint, Sterling has engaged in intentional discrimination by “maintaining a system

for making promotion and compensation decisions that is excessively subjective” which
“permitted or encouraged managers to deny female employees equal access to
promotion opportunities and the same compensation paid to similarly situated males.”
(See Compl. Dkt. 1, at ¶ 7(a)). The EEOC seeks class-wide injunctive relief as well as
compensatory and punitive damages. According to the EEOC, the class of employees
consists of approximately 20,000 women currently or formerly employed by Sterling-
owned retail stores throughout the country.
On February 12, 2010, the EEOC filed a motion seeking to bifurcate discovery
and trial into two stages as follows:
Stage I would concern the production of personnel data necessary for statistical analyses and Sterling’s policies and procedures, depositions of witnesses with knowledge relevant to the pattern or practice claims, such as managers familiar with Sterling’s practices and policies, current or former employees who have experienced or witnessed discrimination, and statistical or other experts. Should the trier of fact find liability regarding the pattern or practice claims, the Court will determine appropriate class-wide injunctive remedies and then Stage II discovery will commence, to be followed by a Stage II trial.
If EEOC prevails during Stage I, its proof of the existence of a pattern or practice of discrimination entitles each class member to an inference that any particular pay or promotion decision during the period in which the discriminatory policy was in force was made in pursuit of that policy. The burden therefore shifts to Sterling to demonstrate that its employment decisions were made for lawful reasons. Stage II discovery and trial will address issues concerning each class member’s claim for relief, including whether Sterling can meet its burden as to each class member and if not, the remedies to which that class member is entitled, including back pay, front pay, and compensatory damages, if any.
2

(See EEOC Memo. of Law in Support of Motion to Bifurcate (“EEOC Memo”), Dkt. 85, at 1-2).1
As part of the Stage I determination, the EEOC also seeks a determination as to punitive damages. The EEOC requests that the Stage I jury decide whether the standard for punitive damages has been met (i.e., whether Sterling acted with malice or with reckless indifference to plaintiffs’ federally-protected rights), and if so, the amount of punitive damages to be awarded to the entire class of plaintiffs.
In response, Sterling agrees that the matter should be bifurcated into two stages: a liability stage and a damages stage. However, Sterling strongly opposes the EEOC’s contention that punitive damages must be determined in Stage I. Sterling contends that to do so would violate due process, its Seventh Amendment right to a jury trial and the Rules Enabling Act, 28 U.S.C. § 2072(b).2
DISCUSSION The EEOC alleges a pattern or practice of discrimination in violation of Title VII. Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals. “To succeed on a pattern-or-practice claim, plaintiffs must prove more than sporadic acts of discrimination; rather, they must
1 As part of that motion, the EEOC also sought an order requiring the parties to coordinate discovery with a parallel classwide arbitration proceeding alleging “nearly identical sex discrimination allegations.” (See EEOC Memo, Dkt. 85, at 13). On March 24, 2010, Magistrate Judge McCarthy denied the request to coordinate discovery. (See Text Order, Dkt.
97).
2 The Rules Enabling Act prohibits the Federal Rules of Civil Procedure from “abridge[ing], enlarg[ing] or modify[ing] any substantive right.” See 28 U.S.C. § 2072(b).
3

establish that intentional discrimination was the defendant’s ‘standard operating
procedure.’” Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 158 (2d Cir.
2001). In this motion, the EEOC seeks to bifurcate issues of liability and damages into
two stages. Stage I would include discovery and trial of issues relating to pattern or
practice liability, injunctive relief and punitive damages. Stage II would encompass the
individual members’ claims for compensatory damages and defenses to those
individual claims.
As a general matter, Supreme Court and Second Circuit caselaw support the use
of bifurcation in Title VII actions asserting pattern-or-practice discrimination. In Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324 (1977), the Court explained the
procedure for bifurcating a Title VII pattern-or-practice class action:
[The plaintiff’s] initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. At the initial, “liability” stage of a pattern-or-practice suit the [plaintiff] is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the [plaintiff]'s proof is either inaccurate or insignificant. An employer might show, for example, that the claimed discriminatory pattern is a product of pre-Act hiring rather than unlawful post-Act discrimination, or that during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination.
If an employer fails to rebut the inference that arises from the [plaintiff]'s prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy. Without any further evidence from the [plaintiff], a court's finding of a pattern or practice justifies an award of prospective relief. Such relief might take the form of an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment decisions
4

and file periodic reports with the court, or any other order “necessary to ensure the full enjoyment of the rights” protected by Title VII.
Teamsters, 431 U.S. at 360-61(footnote omitted). The Court further explained that, if individual relief for the victims is also sought (in addition to the prospective injunctive relief), “a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.” Id. at 361. “[T]he question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination.” Id. The finding of pattern-or-practice discrimination during the initial liability stage creates an inference or presumption that any particular employment decision made during the time frame when the discriminatory policy was in effect was made pursuant to the discriminatory policy. The burden then shifts to the employer to demonstrate that the employment decision as to that particular employee was made for a different, lawful reason. Id. at 362.
The Second Circuit endorsed a similar bifurcation procedure in Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001). The Court explained:
Generally, a pattern-or-practice suit is divided into two phases: liability and remedial. At the liability stage, the plaintiffs must produce sufficient evidence to establish a prima facie case of a policy, pattern, or practice of intentional discrimination against the protected group. Plaintiffs have typically depended upon two kinds of circumstantial evidence to establish the existence of a policy, pattern, or practice of intentional discrimination: (1) statistical evidence aimed at establishing the defendant's past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination.
Robinson, 267 F.3d at 158 (citing Teamsters, 431 U.S. at 360-62)(internal footnote and quotations omitted).
5

If the plaintiffs are successful in demonstrating that the employer engaged in a
pattern or practice of unlawful discrimination, the Court can proceed to fashion
injunctive relief. Id. Thus, injunctive relief can be determined at the conclusion of
Stage I. However, if individual relief is sought in the form of back pay, front pay or
compensatory damages, the Court must proceed to Stage II. The Second Circuit
explained:
If individual relief such as back pay, front pay, or compensatory recovery is sought in addition to class-wide injunctive relief, the court must conduct the “remedial” phase. Class members enter this second phase with a presumption in their favor that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.
The effect of the presumption from the liability stage is to substantially lessen each class member's evidentiary burden relative to that which would be required if the employee were proceeding separately with an individual disparate treatment claim under the McDonnell Douglas framework. Rather than having to make out a prima facie case of discrimination and prove that the employer's asserted business justification is merely a pretext for discrimination, a class member at the remedial stage of a pattern-or-practice claim need only show that he or she suffered an adverse employment decision and therefore was a potential victim of the proved [class-wide] discrimination. The burden of persuasion then shifts to the employer to demonstrate that the individual [was subjected to the adverse employment decision] for lawful reasons.
If the employer is unable to establish a lawful reason for an adverse employment action, the employee is entitled to individualized equitable relief, which may include back pay and front pay. Class members who seek compensatory damages in addition to individualized equitable relief must then prove that the discrimination caused them emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other nonpecuniary losses.
Id. at 159-60 (internal quotations and citations omitted).
The parties are in accord that this matter should be bifurcated and that issues of
6

liability and injunctive relief should be addressed at Stage I. They also agree, in accordance with the foregoing caselaw, that issues of individual relief including compensatory damages and back pay must be addressed at Stage II. Where they diverge is on the issue of punitive damages. The EEOC maintains that punitive damages must be determined during Stage I, whereas Sterling argues that doing so would violate its due process and Seventh Amendment rights.
Both Teamsters and Robinson are silent on this issue. The EEOC argues that judicial economy favors a punitive damages determination at Stage I. According to the EEOC, the Stage I discovery and trial would focus on the EEOC’s “statistical, anecdotal and expert evidence of discrimination and Sterling’s affirmative defenses to the pattern or practice claims.” (See EEOC Motion to Bifurcate, Dkt. 85, at 8). The EEOC claims that “[t]he evidence EEOC will present in support of its claim for punitive damages will be virtually identical to the evidence EEOC will present to prove that Sterling engaged in a pattern or practice of intentional discrimination.” (Id. at 10). According to the EEOC, this “overlap of proof” mandates that punitive damages be determined at Stage I. Requiring punitive damages to be addressed at Stage II would, according to the EEOC, “result in a tremendous waste of time” and “risk . . . inconsistent verdicts.” (Id. at 12).
Sterling argues that the EEOC’s proposed “punitives first” scheme (whereby punitive damages are assessed in Stage I) violates due process because it allows the Stage I jury to determine the amount of punitive damages without regard to the amount of compensatory damages owed. Sterling cites State Farm Mutual Auto Ins. v. Campbell, 538 U.S. 408 (2003) in support of its position. In State Farm, the Supreme
7

Court held that a punitive damages award of $145 million violated due process where the compensatory damages were only $1 million. The Court explained that “there are procedural and substantive constitutional limitations” on the amount of punitive damages awarded. Id. at 416. When punitive damages are awarded, “courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and the general damages recovered.” Id. at 426. “To the extent that an award is grossly excessive [in relation to the amount of actual compensatory damages suffered], it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Id. at 417. In evaluating the reasonableness of a punitive damages award, “[i]t should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” Id. at 419 (emphasis added).
Five years later, in Phillip Morris USA v. Williams, 549 U.S. 346 (2007), the Supreme Court again reiterated its view that the Constitution imposes both substantive and procedural limits on punitive damage awards. In that case, the Court held that the Due Process Clause forbids the imposition of a punitive damages award to punish a defendant for injury that it inflicts upon victims who are not part of the litigation because it denies the defendant the “opportunity to present every available defense.” Id. at 35354. The Court explained that imposing punitive damages for harm caused to persons who are not parties to the litigation would
8

add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fundamental due process concerns to which our punitive damages cases refer—risks of arbitrariness, uncertainty, and lack of notice—will be magnified.
Id. The Supreme Court has made clear that any punitive damages determination
must be “reasonable and proportionate” to the amount of actual (i.e., compensatory) damages. State Farm, 538 U.S. at 426. A punitive damages award that is grossly disproportionate to the amount of harm suffered will not withstand constitutional scrutiny. Thus, to survive due process, punitive damages must be proportional to the amount of compensatory damages owed. Although the Supreme Court has refused to “identify concrete constitutional limits on the ratio between harm . . . to the plaintiffs and the punitive damages award,” State Farm, 538 U.S. at 424, it has suggested that “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Id. at 425.
The EEOC’s proposal to determine punitive damages at the conclusion of Stage I, before compensatory damages are determined, runs afoul of the principles articulated in State Farm and Phillip Morris USA. Under the EEOC’s proposed scheme, the Stage I jury will determine the amount of punitive damages to be awarded. Yet, at the time that the jury is being asked to make that finding, there will have been no determination as to the number of class members adversely affected by the discriminatory practice. A
9

finding of liability at the conclusion of Stage I does not necessarily entitle all (or even any) members to compensatory damages. Rather, it merely creates the presumption that any particular adverse employment decision made during the period of discrimination was made pursuant to the discriminatory policy. Robinson, 267 F.3d at 159. To obtain compensatory relief, however, that class member must show during the remedial stage (Stage II) that she suffered an adverse employment decision “‘and therefore was a potential victim of the proved discrimination.’” Id. (quoting Teamsters, 431 U.S. at 362)(emphasis added). It is only if the employer then fails to rebut that presumption by showing that the adverse action was taken for a lawful reason that that compensatory damages become owing. At that point, an individualized determination is made as to the amount of back pay, emotional pain, inconvenience, and mental anguish suffered as a result of that adverse action. In other words, even though the proposed class consists of approximately 20,000 members, whether all 20,000 class members were victims of the discriminatory policy, or whether the number is actually far less, is an issue that will not be determined until Stage II. Likewise, the actual harm suffered by those members remains unresolved at that juncture. At Stage I, the only issue being determined is whether there was a discriminatory policy or practice in the first place. However, the EEOC’s proposed scheme of assessing punitive damages on a class-wide basis before any determination is made as to the actual harm caused by that policy is inconsistent with the principles articulated in State Farm and Phillip Morris USA. Rather than ensuring a “proportional relationship” between compensatory and punitive damages, as State Farm instructs, the EEOC’s
10

plan seeks to completely divorce any relationship between those determinations.
The EEOC attempts to distinguish State Farm and Phillip Morris USA by
asserting that the statutory cap of $300,000 per plaintiff acts to “cabin” the jury’s
discretion to award excessive punitive damages. The Court is unpersuaded because,
under the EEOC’s scheme, the amount of punitive damages is decided before the
actual number of victims is determined. The Stage I jury will be asked to impose a
punitive damages award of up to $300,000 for each of the 20,000 potential victims, for
a total potential punitive damages award of $6 billion. Yet, whether 20,000 or merely
200 victims actually suffered harm because of the discriminatory policy will not be
determined until Stage II. Because the number of actual victims remains only
hypothetical at the conclusion of Stage I, the $300,000 cap per victim does not serve to
“cabin” the jury’s discretion at all.
For this reason, several courts and commentators have declined to adopt the
“punitives first” bifurcation procedure proposed by the EEOC. For example, in Allison v. Citgo Petroleum Corp., 151 F.3d 402, 418 (5th Cir. 1998), the Fifth Circuit rejected the
idea that punitive damages can be assessed on a class-wide basis at the conclusion of
the liability phase:
Punitive damages cannot be assessed merely upon a finding that the defendant engaged in a pattern or practice of discrimination. Such a finding establishes only that there has been general harm to the group and that injunctive relief is appropriate. See Price Waterhouse v. Hopkins, 490 U.S. 228, 266, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring in the judgment). Actual liability to individual class members, and their entitlement to monetary relief, are not determined until the second stage of the trial. See id.; Dillon v. Coles, 746 F.2d 998, 1004 (3d Cir. 1984). And because punitive damages must be reasonably related to the reprehensibility of the defendant's conduct and
11

to the compensatory damages awarded to the plaintiffs, see Patterson, 90 F.3d at 943-44 (citing BMW v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 1598-99, 134 L.Ed.2d 809 (1996)), recovery of punitive damages must necessarily turn on the recovery of compensatory damages. Thus, punitive damages must be determined after proof of liability to individual plaintiffs at the second stage of a pattern or practice case, not upon the mere finding of general liability to the class at the first stage.
Id. at 417-18; see also Lemon v. Int’l Union of Operating Engineers, Local 139, 216 F.3d 577, 581 (7th Cir. 2000)(“[T]o win punitive damages, an individual plaintiff must establish that the defendant possessed a reckless indifference to the plaintiff's federal rights- a fact-specific inquiry into that plaintiff's circumstances.”); EEOC v. Int’l Profit Assoc. Inc., 01-C-4427, 2007 WL 3120069 (N.D. Ill. 2007)(rejecting EEOC’s request to have punitive damages determined at the conclusion of the Stage I liability phase); see also Joseph M. McLaughlin, 2 McLaughlin on Class Actions, § 8:18(6th ed)(observing that “[t]he great majority of decisions are in accord” in rejecting trial plans seeking to decide punitive damages for an entire class without knowing the extent of compensatory damages due individual class members); Victor E. Schwartz and Christopher E. Appel, Putting the Cart Before the Horse: The Prejudicial Practice of a “Reverse Bifurcation” Approach to Punitive Damages, 2 Charleston L. Rev. 375, 405 (2008)(arguing that there exists “no constitutionally permissible justification for a court to allow a jury to determine punitive damages before they have made a legitimate finding of liability and can award compensatory damages.”); Sheila B. Scheuerman, Two Worlds Collide: How the Supreme Court’s Recent Punitive Damages Decision Affect Class Actions, 60 Baylor L. Rev. 880 (Fall 2008)(arguing that it violates due process to calculate punitive damages before compensatory damages are assessed).
12

The nature of the allegations in this case further illustrates the impropriety of determining punitive damages at the conclusion of Stage I. The pattern or practice of discrimination alleged in this case does not stem from an objective, uniform national policy. Rather, the EEOC claims Sterling fostered a policy of allowing “excessively subjective” promotion and compensation decisions. Without objective criteria governing pay and promotional decisions, the EEOC claims that store managers located throughout the nation were permitted to engage in subjective pay and promotional decisions that resulted in a pattern or practice of discrimination. The EEOC’s allegations of broad and overly subjective decisionmaking necessarily implies that not all 20,000 members were affected by the discriminatory policy in the same manner. Some of the women may have been subjected to overt discrimination, for longer periods of time, resulting in more substantial emotional consequences, while others may not have been affected by the subjective decisionmaking at all. In other words, the discrimination experienced by different women at different stores in different regions by different managers throughout the nation will vary. While the treatment by some managers might merit punitive damages, others will not. To determine punitive damages at the Stage I juncture, without regard to the individual experiences of each woman, is simply inappropriate given the highly individualized and subjective manner in which the discrimination is alleged to have occurred.
The Court recognizes that some courts have adopted the EEOC’s proposed procedure. See, e.g., EEOC v. Outback Steak House of Florida, Inc., 576 F.Supp. 2d 1202 (D. Colo. 2008); EEOC v. Dial Corp., 259 F.Supp. 2d 710 (N.D. Ill. 2003). However, in weighing the reasoning in those cases against the principles articulated in
13

State Farm, Phillip Morris USA, and Allison, the Court is unpersuaded by the EEOC’s arguments. In the absence of Second Circuit3 or Supreme Court4 authority directly addressing the “punitives first” bifurcation procedure proposed here, the Court declines to adopt the EEOC’s request to address punitive damages as part of the Stage I litigation. Punitive damages will be determined as part of the fact-specific individual determinations made in Stage II.
CONCLUSION For the reasons stated, the EEOC’s motion to bifurcate trial and discovery is granted in part, but denied to the extent that it seeks a punitive damages determination at Stage I. The matter will be bifurcated into two stages as follows:
Stage I will concern the production of personnel data necessary for statistical analyses of Sterling’s policies and procedures, depositions of witnesses with knowledge relevant to the pattern or practice claims, such as managers familiar with Sterling’s practices and policies, current or former employees who have experienced or witnessed discrimination, and statistical or other experts.
3 Although not directly on point, the Second Circuit has expressed disapproval of aggregate class-wide damages determinations because such a procedure was likely to “result in an astronomical damages figure that [did] not accurately reflect the number of plaintiffs actually injured by defendants” and bore “little or no relationship to the amount of economic harm actually caused by defendants.” See McLaughlin v. American Tobacco Company, 522 F.3d 215 231 (2d Cir. 2008).
4 It is possible that the Supreme Court’s highly-anticipated ruling in Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010), petition for cert. granted, 131 S.Ct. 795 (argued March 29, 2010), may provide some guidance on this issue. In the event that it does, the parties may request reconsideration of this ruling in light of that decision.
14

Should the trier of fact find liability regarding the pattern or practice claims, the Court will determine appropriate class-wide injunctive remedies. At that point, Stage II discovery will commence, to be followed by a Stage II trial.
Stage II discovery and trial will address issues concerning each class member’s claim for relief, including whether Sterling can meet its burden of rebuttal as to each class member, and if not, the remedies to which that class member is entitled, including back pay, front pay, and compensatory and punitive damages, if any.

SO ORDERED. DATED:April 25, 2011

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE

15

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v.
STERLING JEWELERS, INC., Defendant.

ORDER 08-CV-706

This case was referred to Magistrate Judge Jeremiah J. McCarthy, pursuant to 28 U.S.C. § 636(b)(1), on November 26, 2008. On November 25, 2008, defendant filed a motion to dismiss that portion of the claims of plaintiff which seek relief for discrimination occurring prior to July 22, 2004. On October 1, 2009, Magistrate Judge McCarthy filed an Amended Report and Recommendation, recommending that defendant's motion be denied. Plaintiff filed objections to the Amended Report and Recommendation on October 14, 2009. Oral argument on the objections was held on December 14, 2009.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Amended Report and Recommendation to which objections have been made. Upon a de novo review of the Amended Report and Recommendation, and after reviewing the submissions and hearing

argument from the parties, the Court adopts the proposed findings of the Amended Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge McCarthy's Amended Report and Recommendation, defendant's motion to dismiss is denied. The case is referred back to Magistrate Judge McCarthy for further proceedings.

SO ORDERED. DATED: January 6 , 2010

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE

2

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

DECISION AND ORDER

Plaintiff,

08-CV-00706(A)(M)

v.

STERLING JEWELERS INC.,

Defendant. ________________________________________

This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial proceedings, including preparation of a decision on non-dispositive motions [22].1 Before me are

the motion of plaintiff Equal Employment Opportunity Commission (“EEOC”) for a protective

order to prohibit a Fed. R. Civ. P. (“Rule”) 30(b)(6) deposition of its representative, to strike

certain discovery requests propounded by defendant Sterling Jewelers Inc. (“Sterling”) and to

permit it to participate in the depositions occurring in the parrallel arbitration of Jock, et al. v.

Sterling Jewelers Inc., AAA Case No. 1 160 00655 08 (the “arbitration”) [109], and the motion

of the arbitration claimants to intervene for the limited purpose of inclusion in the protective

order governing the confidentiality of the discovery to be exchanged in this case [125]. Oral

argument was held on June 8, 2010 and July 9, 2010.

For the following reasons, I order that the EEOC’s motion for a protective order

be granted in part and denied in part, and that the arbitration claimants’ motion to intervene be

granted.

1

Bracketed references are to the CM/ECF docket entries.

BACKGROUND The EEOC commenced this gender discrimination action pursuant to Sections 706 and 707 of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§2000e-5(f)(1) and (3) and 2000e-6). The complaint alleges that “since at least January 1, 2003, Sterling has engaged in unlawful employment practices throughout its stores nationwide . . . by maintaining a system for making promotion and compensation decisions that is excessively subjective and through which Sterling has permitted or encouraged managers to deny female employees equal access to promotion opportunities and the same compensation paid to similarly situated male employees” ([1], ¶7(a)), and by “maintain[ing] a system for making promotion and compensation decisions that is excessively subjective and that has a disparate impact on female retail sales employees”. Id., ¶8(a). Despite the age of this case, it is essentially at its infancy with respect to the exchange of discovery. To date, there remains a pending motion to bifurcate discovery [85] and no Case Management Order has been implemented. Following a series of informal conferences with the parties to resolve their preliminary discovery disputes, I directed the EEOC to file this motion addressing the issues which could not be resolved [101]. The EEOC’s motion seeks a protective order prohibiting Sterling from conducting a Rule 30(b)(6) deposition of the EEOC’s representative, striking certain of Sterling’s document requests and interrogatories, and permitting the EEOC to participate in the depositions occurring in the arbitration [109]. Thereafter, the arbitration
-2-

claimants moved to intervene for the limited purpose of being included in the protective order governing the confidentiality of the discovery to be exchanged in this case [125].2

ANALYSIS A. The EEOC’s Motion for a Protective Order
1. Sterling’s Right to a Rule 30(b)(6) deposition The EEOC seeks to “prohibit Sterling . . . from proceeding with its proposed
deposition of EEOC, which rather than being an effort to obtain any relevant or admissible evidence, is an effort to depose EEOC’s attorney’s and otherwise intrude on privileged matters”. EEOC’s Memorandum of Law [110], p. 1. In response, Sterling argues, inter alia, that the proper method for addressing the EEOC’s concerns is to allow the EEOC to assert its objections, as appropriate, at the deposition. Sterling’s Memorandum of Law [117] p. 9. I agree with Sterling.
I cannot address these issues in the abstract. “Unless and until Defendants actually ask a question at the deposition that intrudes upon the deliberative process privilege or any other alleged applicable privilege, the Court finds that the EEOC’s objections are premature”. Equal Employment Opportunity Commission v. LifeCare Management Services, LLC, 2009 WL 772834, *2 (W.D.Pa. 2009); Equal Employment Opportunity Commission v. California Psychiatric Transitions, 258 F.R.D. 391, 398 (E.D.Cal. 2009)(“To preclude the deposition at this junction is premature”); Equal Employment Opportunity Commission v.

2

The arbitration claimants’ motion arises from Sterling’s motion for entry of a protective

order [103]. I have directed the parties to meet and confer in an attempt to reach agreement on the terms

of a stipulated protective order. Thus, Sterling’s motion is not addressed in this decision.

-3-

Albertson’s LLC, 2007 WL 1299194, *2 (D.Colo. 2007) (same); Equal Employment Opportunity Commission v. Corrections Corporation of America, 2007 WL 4403528, *1 (D.Colo. 2007) (same).3
Although the EEOC is concerned about the Rule 30(b)(6) deposition being used to reveal privileged material, at this stage I cannot conclude that there are no permissible areas of questioning for Sterling to inquire at the Rule 30(b)(6) deposition. See Corrections Corp. of America, 2007 WL 4403528 at *1 (“EEOC is not exempt from a Rule 30(b)(6) deposition”); Equal Employment Opportunity Commission v. American International Group, Inc., 1994 WL 376052, *3 (S.D.N.Y. 1994)(“The disclosure of who was interviewed, what the deponent did to refresh his recollection of the facts in the case, and what facts EEOC considered concerning the defendants’ defenses] does not reveal the agency’s trial strategy or its analysis of the case. For example, knowing who was interviewed does not intrude upon the mental impressions of the attorney. Presumably, the interview process in an investigation includes people and information which will be discarded as the attorney begins the analysis and plans strategy. Similarly, what information a witness reviews in preparation for a deposition does not reveal the thought processes of the attorneys. Documents are reviewed by a deponent for many reasons. There is a distinct difference between asking what was reviewed as opposed to why it was reviewed”); LifeCare Management Services, LLC, 2009 WL 772834 at *2 (“The deliberative process

3

Compare with Equal Employment Opportunity Commission v. McCormick & Schmick’s

Seafood Restaurants, Inc., 2010 WL 2572809, *5 (D.Md. 2010) (In granting the EEOC’s motion for a

protective order precluding a Rule 30(b)(6) deposition of its representative, the court noted that “the

attendant objections as to individual questions during the deposition on attorney-client privilege and

work product grounds would likely involve recourse to this Court and a significant burden on this Court’s

time that would be lessened by other means of discovery”).

-4-

privilege only protects the opinions, recommendations, and deliberations of the EEOC, not the underlying factual information”).4 At this stage, it is also impossible for me to conclude that all of the categories of inquiry listed in the Rule 30(b)(6) deposition notice (Malloy Declaration [109-2], Ex. 5) pertain only to privileged matters.
Moreover, Sterling alleges that it seeks to depose the “EEOC on the parameters of its administrative investigation.” Sterling’s Memorandum of Law [117], p. 10. Such inquiry may be highly relevant to its potential defenses in this case because “it is well settled that the EEOC’s investigation must occur within the ‘scope of the charge’ - that is, it must reasonably grow out of the charge underlying it. It is also well settled that a lawsuit must be like or reasonably related to the underlying EOC [sic] charge”. Equal Employment Opportunity Commission v. Jillian’s of Indianapolis, 279 F. Supp. 2d 974, 979 (S.D.Ind. 2003). For example, in Jillian’s of Indianapolis, the EEOC sought to prosecute a nationwide class, but the court dismissed these claims and limited the suit to Jillian’s Indianapolis facility, which was the only facility investigated by the EEOC. 279 F. Supp. 2d at 980-81.
“The fact that the EEOC has turned over its complete administrative file does not relieve the Agency of its obligation under Fed.R.Civ.P. 30(b)(6) to provide a witness to answer questions about the documents for purposes of clarification and interpretation”. Little v. Auburn University, 2010 WL 582083, *2 (M.D.Ala. 2010). See California Psychiatric Transitions, 258

4

Compare with U.S. Equal Employment Opportunity Commission v. Pinal County, __

F. Supp. 2d __, 2010 WL 2194441, *4 (S.D.Cal. 2010) (“asking . . . any EEOC representative, to even set

forth the selected facts which constitute the factual basis of the probable cause finding would infringe on

the deliberative process privilege as it would reveal the EEOC’s evaluation and analysis of the extensive

factual information gathered by the agency”).

-5-

F.R.D. at 396 (same); LifeCare Management Services., LLC, 2009 WL 772834 at *2 (same).5 This is especially true here where, as the EEOC concedes, there is “little investigative material in the files beyond the charges”. EEOC’s Memorandum of Law [110], p. 15. See Albertson’s LLC, 2007 WL 1299194 at *1 (“Albertson’s may ask what documents were reviewed in the course of the EEOC investigation and what documents evidence that there is discrimination at the distribution center; or Albertson’s might ask the identity of persons the EEOC believes have knowledge about the claimed discrimination. The answers to these questions may or may not be in the investigation file, or the information in the investigation file may not be complete”).
Even some of the cases upon which the EEOC relies indicate that Sterling is entitled to a Rule 30(b)(6) deposition. For example, in American International Group, Inc., 1994 WL 376052 at *1-2, the defendant moved to compel responses to certain questions posed at a

5

Compare with American International Group, Inc., 1994 WL 376052 at *2 (With respect

to the allegations of the complaint, “the defendants contend that they merely seek facts. However, they

essentially have the investigative file. Under these circumstances, the defendants seek to discover how

the EEOC ‘intends to marshall the facts, documents and [statements] in its possession, and to discover

the inferences that [the EEOC] believes properly can be drawn from the evidence it as accumulated’”);

McCormick & Schmick’s Seafood Restaurants, Inc., 2010 WL 2572809 at *6 (“Defendants have already

received much of the factual information generated by EEOC’s investigation. . . . EEOC has produced its

investigative file exceeding six boxes of records, including all witness statements contained therein and

job advertisements. Defendants have complete access to their own payroll, personnel and applicant data

for purposes of statistical analysis of their employee selection patterns by their own expert. Defendants’

deposition subjects are not asking for clarification of this factual data, but rather for how EEOC’s

counsel has marshalled the facts learned during its investigation in support of its case. All of the subject

areas are likely to require testimony of EEOC counsel or a proxy prepared by counsel. Thus, an invasion

of attorney work product would be inevitable”); Pinal County, 2010 WL 2194441 at * 4 (“Respondents

have made no showing that Mr. Green possesses relevant, non-privileged information that is not

cumulative or duplicative to the information contained in the EEOC investigative file, which has already

been produced to Respondents and which, in the Court’s view, is likely the best source of the information

presently sought by Respondents”).

-6-

Rule 30(b)(6) deposition. Although the court denied the defendant’s motion to the extent it sought to compel responses to its inquiries concerning the allegations of the complaint and the EEOC’s damage claims, it granted the defendant’s motion to the extent it sought the deponent to answer questions concerning how it conducted its investigation. Id. at *2-3. See also Equal Employment Opportunity Commission v. Automall Imports, Ltd., No. CV-08-3986 (E.D.N.Y. April 13, 2009)(granting the EEOC’s motion to quash the defendants’ 30(b)(b) subpoena without prejudice to renewal upon completion of fact discovery noting that “maybe there is some relevance to taking . . . an investigators deposition. But it should be the last choice, rather than the first”).6
2. Responses to Sterling’s Document Requests and Interrogatories a. Document Requests The EEOC’s challenges to Sterling’s first set of document requests fall into three
categories: 1) documents used in preparing the complaint (Request no.3); 2) communications with or affidavits/statements of current/former employees (whether represented by the EEOC or not) or any person concerning the allegations of the complaint (request nos. 10-14, 29-30); and 3) documents related to the investigation undertaken by the EEOC in commencing this case (request no. 16). Maatman Declaration [117-2], Ex. E. The EEOC argues that these “requests . . . explicitly call for communications squarely protected by the attorney-client privilege, common interest privilege, work product doctrine, and the Mediation Agreement”, and that it “should not

6

Unreported transcript of oral ruling attached as Ex. 18 to Malloy declaration [109].

-7-

be required to respond to [these] improper discovery requests . . . even by providing a privilege log”. EEOC’s Memorandum of Law [110], pp. 17, 21.
“The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the discovery rules found in the Federal Rules of Civil Procedure.” Obiajulu v. City of Rochester, Department of Law, 166 F.R.D. 293, 295 (W.D.N.Y. 1996) (Feldman, M.J.). On their face, I do not find that the requests seek only privileged material. If the EEOC believes that responsive documents are privileged, it should - as it has done - produce a privilege log of these documents. 7

b. Interrogatories The EEOC also seeks a protective order with respect to the following interrogatories: 1) the identity of the person(s) who provided information or assisted in answering the interrogatories (interrogatory no. 1); 2) the efforts undertaken to determine the identity of any current or former employees of Sterling who allege that they were discriminated against because of their gender and identity of each person (interrogatory no. 3); and 3) identify each current or former employee of Sterling who the EEOC has taken a statement from or exchanged correspondence with, including the details and subject matter of such communications (interrogatory no. 4). Malloy Declaration [109-2], Ex. 4. The EEOC argues that “each of these

7

The EEOC has produced an amended privilege log responding to Sterling’s first set of

interrogatories and request for production. Maatman Declaration [177-2], Ex. D Because “the

governmental deliberative process privilege may only be asserted by the head of a governmental agency

or by a designated high-ranking subordinate”, the EEOC has also submitted the Declaration of Jacqueline

Berrien [122], Chair of the EEOC, in support of its withholding of certain documents under the

deliberative process privilege. Kaufman v. City of New York, 1999 WL 239698, *3 (S.D.N.Y. 1999).

-8-

interrogatories reflects a blatant effort to invade the boundaries of attorney work product”. EEOC’s Memorandum of Law [110], p. 20.
Addressing the interrogatories individually, I conclude that Sterling is entitled to the identity of the individuals that assisted in preparation of the interrogatory responses (interrogatory no. 1). See Omega Engineering, Inc. v. Omega, S.A., 2001 WL 173765, *3 (D.Conn. 2001) (finding interrogatory requesting to “identify each person who participated in the preparation of the answers to any interrogatory” to be proper). 8
With respect to interrogatory no. 3, I find that Sterling is not entitled to know how the EEOC identified the individuals that were allegedly discriminated against as protected work product, but that it is entitled to the identity of these individuals. The identities of the individual claimants is essential to Sterling’s ability to defend itself. See Serrano v. Cintas Corp., 2010 WL 746430, *1 (E.D.Mich. 2010) (“Cintas maintains that it has the right to know the identity of each individual who has agreed to participate in this action, and who the EEOC alleges is entitled to back pay and other damages. The relevance of that information is self evident, and not contested by the EEOC”).
There is conflicting authority as to whether Sterling is entitled to the identity of each current or former employee with whom the EEOC has received statements or exchanged correspondence, including the dates of such communications and the subject matter (interrogatory no. 4). Compare Serrano, 2010 WL 746430 at *9 (ordering the EEOC to provide

8

Compare with Weiss v. National Westminster Bank, PLC , 242 F.R.D. 33, 62 (E.D.N.Y.

2007) (“NatWest’s motion to compel a response to Interrogatory No. 5 is denied because it seeks

information regarding individuals who assisted plaintiffs’ counsel with the preparation of their

interrogatory responses, which is protected work product”).

-9-

the identity of the persons to whom the EEOC sent letters and questionnaires and copies of all completed questionnaires returned to the EEOC); Equal Employment Opportunity Commission v. Jewel Food Stores, Inc., 231 F.R.D. 343, 346-350 (N.D.Ill. 2005) (finding interrogatories seeking the “identify[ ] [of] the individuals whom [Jewel] has interviewed and . . . the facts it obtained from them” to be discoverable), with Equal Employment Opportunity Commission v. Collegeville/Imagineering Ent., 2007 WL 1089712, *1 (D.Ariz. 2007) (“Where a party does not seek to learn of witnesses with knowledge about the case, and instead seeks to learn who has been contacted by opposing counsel, work product concerns arise. Such discovery requests seek to track the steps of opposing counsel and their witness interview choices. Such requests focus on the actions of lawyers rather than the knowledge of witnesses”).
Faced with this conflicting case law, I agree with Magistrate Judge Payson that “the better reasoned decisions . . . are those that draw a distinction between discovery requests that seek the identification of persons with knowledge about the claims or defenses (or other relevant issues) - requests that are plainly permissible - and those that seek the identification of persons who have been contacted or interviewed by counsel concerning the case”. Tracy v. NVR, Inc., 250 F.R.D. 130, 132 (W.D.N.Y. 2008)(Payson, M.J.).9 I also find that any witness statements obtained by the EEOC are protected work product and need not be produced to

9

Compare with Wilson v. City of New York, 2008 WL 824284, *2 (E.D.N.Y.

2008)(“Given the large number of non-party witnesses to the events in question in this action . . . , it is

neither efficient nor practical for the defendant to attempt to locate and depose all of them. It is fair to

assume that the plaintiff will actually call at trial witnesses from whom statements were obtained. Thus,

in order to prevent unfair surprise at trial and to permit the defendants the opportunity to obtain the

substantial equivalent of any such statements, cf. Fed.R.Civ.P. 26(b)(3)(A)(ii), the plaintiff is directed to

disclose the identities and most recent addresses of the two witnesses from whom statements were

obtained, as well as the identities and most recent addresses of any other non-party witnesses from whom

statements have been obtained”).

-10-

Sterling absent a showing a substantial need. See Equal Employment Opportunity Commission v. Scrub, Inc., 2010 WL 2136807, *9 (N.D.Ill. 2010) (“completed questionnaires and any interview notes of communications between prospective class members and EEOC counsel are . . . protected from disclosure”); Equal Employment Opportunity Commission v. Carrols Corp., 215 F.R.D. 46, 51-52 (N.D.N.Y. 2003)(denying the defendant employer’s motion to compel production of completed questionnaires mailed to employees and prepared by the EEOC under the work product doctrine, but ordering the EEOC, at its suggestion, to provide the defendant with witness summaries); Equal Employment Opportunity Commission v. International Profit Associates, Inc., 206 F.R.D. 215, 221 (N.D.Ill. 2002) (“IPA does not have a substantial need for the post-suit interview notes, nor would it undergo an undue hardship in collecting similar information”).10

3. The EEOC’s Participation in the Depositions Occurring in the Arbitration The EEOC argues that “Sterling should not be permitted to oppose reasonable
efforts to coordinate discovery in this case with the parallel arbitration proceeding”. EEOC’s Memorandum of Law [110], p. 22. Thus, it seeks permission to participate in the depositions of the named plaintiffs in the arbitration, who are also the charging parties in this case. Id. at p. 23.
This motion seeks the same relief I previously denied, namely coordination of discovery between this case and the parallel arbitration [97]. For the same reasons the EEOC’s

10

Compare with Young v. California, 2007 WL 2900539, *1 (S.D.Cal. 2007)

(“Questionnaires completed by third persons are not work product. . . . The documents at issue are the

verbatim statements of witnesses. They are the factual observations of percipient witnesses, not the

thoughts or impressions of counsel”).

-11-

initial motion was denied, this motion is also denied. Although the EEOC questions how Sterling will be able to use these depositions in this case without allowing the EEOC to participate (EEOC’s memorandum of law [110], p. 22), this issue is for Sterling to resolve and does not bear on the EEOC’s right to attend the depositions.
B. The Arbitration Claimants’ Motion to Intervene The arbitration claimants seek to intervene in Sterling’s motion for the entry of a
protective order in order to argue that the protective order should “permit access to information designated as Confidential Information to: ‘private arbitration plaintiffs and their attorneys (a) to the extent that the same material have been produced or will be produced in the Arbitration; (b) as the EEOC finds necessary to effectively prepare its case and permit the private arbitration plaintiffs to represent their interests in this action; or (c) to the extent that deposition transcripts are relevant to the Arbitration.’” Arbitration claimants’ Memorandum of Law [126], Ex. 2.
As a threshold issue, I must determine whether the arbitration claimants should be permitted to intervene for purposes of addressing Sterling’s motion for a protective order. See In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litigation, 255 F.R.D. 308, 317 (D.Conn. 2009)(“modification [of the protective order] is a separate inquiry from the threshold decision to grant intervention”). Permissive intervention is permitted when the movant “has a claim or defense that shares with the main action a common question of law or fact”. Rule 24(b)(1)(B). In exercising my discretion I “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights”. Rule 24(b)(3).
-12-

Sterling does not dispute that the arbitration claimants timely moved to intervene and that the arbitration involves questions of law and fact common to this action. Instead, Sterling argues that it will be prejudiced if the arbitration claimant’s motion to intervene is granted because “the Arbitration Claimants seek to have this Court rewrite the protective order entered in the arbitration prohibiting confidential documents and information from being discussed outside the arbitration”. Sterling’s Response [130], pp. 1-2.
This argument misses the mark. First, the EEOC and the arbitration claimants are not seeking to share discovery exchanged in the arbitration, but rather are seeking permission for the EEOC to share discovery disclosed in this case with the arbitration claimants. Second, the EEOC has already requested the inclusion of the arbitration claimants in the protective order and thus, this issue is before me whether or not the motion to intervene is granted. Arbitration claimants’ Reply [133], p. 2. Under these circumstances, I grant the claimant’s motion to intervene for the limited purpose of addressing Sterling’s motion for entry of a protective order. “Whether [they] will be permitted to modify the protective order, and to what extent, is a separate issue”. In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litigation, 255 F.R.D. at 317.
CONCLUSION For these reasons, the EEOC’s motion for a protective order is granted in part and denied in part [109] as set forth herein, and the arbitration claimants’ motion to intervene [125] is granted. The parties, including the arbitration claimants, shall confer in an attempt to reach a stipulated protective order. If the parties are unable to reach an agreement, they shall identify the
-13-

areas that remain in dispute by July 30, 2010, and a conference to discuss the disputed areas is set for August 5, 2010 at 11:00 a.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Dated: July 15, 2010
/s/ Jeremiah J. McCarthy JEREMIAH J. MCCARTHY United States Magistrate Judge
-14-

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

DECISION AND ORDER

Plaintiff,

08-CV-00706(A)(M)

v.

STERLING JEWELERS INC.,

Defendant. ________________________________________

This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial

proceedings, including preparation of a decision on non-dispositive motions [22].1 Before me are

the parties’ cross-motions to compel [215, 218]. For the following reasons, the cross-motions are

granted in part and denied in part.

BACKGROUND The Equal Employment Opportunity Commission (“EEOC”) commenced this gender discrimination action pursuant to Sections 706 and 707 of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§2000e-5(f)(1) and (3) and 2000e-6). The Complaint alleges that “since at least January 1, 2003, Sterling [Jewelers Inc. (“Sterling”)] has engaged in unlawful employment practices throughout its stores nationwide . . . by maintaining a system for making promotion and compensation decisions that is excessively subjective and through which Sterling has permitted or encouraged managers to deny female employees equal access to promotion opportunities and the same compensation paid to similarly situated male employees”

1

Bracketed references are to the CM/ECF docket entries.

([1], ¶7(a)), and by “maintain[ing] a system for making promotion and compensation decisions that is excessively subjective and that has a disparate impact on female retail sales employees”. Id., ¶8(a).
The parties agreed that this case, including discovery, should be bifurcated, but were unable to agree whether punitive damages would be addressed during Stage I or Stage II. In his April 25, 2011 Decision and Order [169], Judge Arcara agreed with Sterling that punitive damages should be addressed during Stage II, and bifurcated this case as follows:
“Stage I will concern the production of personnel data necessary for statistical analyses of Sterling’s policies and procedures, depositions of witnesses with knowledge relevant to the pattern or practice claims, such as managers familiar with Sterling’s practices and policies, current or former employees who have experienced or witnessed discrimination, and statistical or other experts. Should the trier of fact find liability regarding the pattern or practice claims, the Court will determine appropriate class-wide injunctive remedies. At that point, Stage II discovery will commence, to be followed by a Stage II trial. Stage II discovery and trial will address issues concerning each class member’s claim for relief, including whether Sterling can meet its burden of rebuttal as to each class member, and if not, the remedies to which that class member is entitled, including back pay, front pay, and compensatory and punitive damages, if any.” [169], pp. 14-15. After Judge Arcara’s decision, a dispute arose as to whether Stage I discovery would include discovery into the EEOC’s claim under §706 of Title VII of the Civil Rights
-2-

Act of 1964, as amended (42 U.S.C. §2000e-5).2 I concluded that conducting Section 706 discovery during Stage I was inconsistent with Judge Arcara’s bifurcation order. October 7, 2011 Decision and Order [199], p. 8.
Following these decisions and implementation of the Stage I Discovery Plan and Case Management Order [209], the parties continued to have discovery disputes. After an informal conference with the parties to resolve those disputes, I directed the parties to file motions addressing the issues which could not be resolved [212]. These cross-motions ensued.

ANALYSIS A. Sterling’s Motion to Compel
1. Document Requests In response to Sterling’s motion to compel, the EEOC states that it “has produced
all nonprotected portions of the investigative files for the nineteen charges underlying this action and all other nonprivileged documents relating to Stage I issues”. EEOC’s Brief [224], p. 7. According to the EEOC, it has also “repeatedly . . . told Sterling that all nonprivileged materials currently in its possession have been produced and that [it] will continue to produce additional responsive and nonprivileged materials as they become available”. Id., p. 8.3 I find these representations sufficient to render moot all aspects of Sterling’s motion to compel directed at the

2

“A §706 case is based on one or more individual charges or complaints of unlawful

discrimination by an employer, and a §707 is based on a pattern or practice of systemic discrimination by

an employer. . . . [B]oth a §706 case and a §707 case can be filed by the EEOC in its own name ”. EEOC

v. Mitsubishi MotorManufacturing of America, Inc., 990 F. Supp. 1059, 1084 (C.D. Ill. 1998).

3

The EEOC also has a continuing obligation to supplement its discovery responses

pursuant to Fed. R. Civ. P. (“Rule”) 26(e).

-3-

EEOC’s responses to its document requests, other than those challenging privilege designations or documents withheld on the basis that they relate to Stage II issues.
While Sterling argues that only a small number of the documents produced by the EEOC are responsive to its document requests (Sterling’s Memorandum of Law [216], p. 5) “the discovery provisions of the Federal Rules are meant to function without the need for constant judicial intervention, and that those Rules rely on the honesty and good faith of counsel in dealing with adversaries”. Hopei Garments (Hong Kong), Ltd. v. Oslo Trading Co., Inc., 1988 WL 25139, *3 (S.D.N.Y. 1988) (citing Penthouse International, Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 390 (2d Cir.1981)). I have “no independent ability to determine whether or not [a party’s] response was comprehensive and [it] cannot be required to ‘prove a negative’ by demonstrating that non-existent documents do not exist”. Smith v. Life Investors Insurance Co. of America, 2009 WL 2045197, *5 (W.D.Pa. 2009).
Therefore, at this time I will rely on the EEOC’s representations concerning its discovery production.4 However, if Sterling “is able to develop evidence that this representation is incorrect, the Court will entertain an appropriate motion at that time”. Id.

2. Privilege Log In April 2010, the EEOC moved for a protective order to strike Document
Requests Nos. 3, 10-14, 16, 29-30 [109]. In support of its motion, the EEOC argued that these “requests . . . explicitly call for communications squarely protected by the attorney-client privilege, common interest privilege, work product doctrine, and the Mediation Agreement”, and

4

The EEOC also has a continuing obligation to supplement its discovery responses

pursuant to Rule 26(e).

-4-

that it “should not be required to respond to [these] improper discovery requests . . . even by providing a privilege log”. EEOC’s Memorandum of Law [110], pp. 17, 21. In denying this aspect of the EEOC’s motion, I concluded that “[o]n their face, I do not find that the requests seek only privileged material. If the EEOC believes that responsive documents are privileged, it should - as it has done - produce a privilege log of these documents”. July 15, 2010 Decision and Order [139], p. 8.
The parties disagree as to the scope of this ruling, prompting Sterling to argue that the EEOC has improperly “lodged blanket objections of various types of privilege” as to these requests. Sterling’s Memorandum of Law [216], p. 10. Although I believe that my Order was clear, to avoid any future confusion, my decision was not intended to overrule the EEOC’s privilege objections in their entirety. I was simply unwilling to conclude that on their face these requests sought only privileged materials. Rather than striking the requests in their entirety, I believed that it would be more prudent for the EEOC to identify responsive documents on its privilege log and to address any disputes on a document-by-document basis. According to Ms. Malloy’s June 15, 2011 letter ([216-5]), this is what the EEOC has done, and as yet, Sterling has not challenged any specific documents on the EEOC’s privilege log as being improperly withheld.
Sterling’s only specific objection is that “[s]everal documents listed on the EEOC’s amended privilege log relate to . . . ‘Charging Party Information,”’ and that it “is entitled to production of this ‘Charging Party Information’ to the extent that the identities of the persons referenced in those documents, along with relevant factual information therein, have not yet been disclosed.” Sterling’s Memorandum of Law [216], pp. 10-11. The EEOC responds that
-5-

“it has amended its privilege log to clarify those entries” (EEOC’s Brief [224], p. 7) and attaches its January 4, 2012 updated privilege log. Malloy Declaration [225], Ex. 11.5 Therefore, I deny this aspect of Sterling’s motion at this time, without prejudice.6 To the extent that the EEOC’s updated privilege log does not satisfy Sterling’s concerns, including its argument that the EEOC should produce redacted documents in lieu of withholding them in their entirety, Sterling may renew its motion with identification of specific documents at issue. The EEOC’s privilege log appears to also identify documents withheld on the grounds that they apply to Stage II discovery. Malloy Declaration [225], Ex. 11. If Sterling wishes to make specific challenges to any of these designations, it may do so in a renewed motion.
Sterling also argues that the EEOC should be compelled to identify information redacted from document Nos. E000002736-2787 and 2853-2858 produced as part of its December 2011 document production. Sterling’s Memorandum of Law [216], Point V. However, I am unable to address the propriety of these redactions without reviewing the documents. Therefore, by May 25, 2012 the EEOC shall provide me with these unredacted documents for my in camera review, along with an explanation (copied to Sterling) of why its redactions are proper. Sterling may respond by June 1, 2012, and I will then decide that issue.

5

Sterling reserves its right to object to the content of this privilege log. Sterling’s

Memorandum of Law [216], p. 11.

6

The EEOC alleges that this aspect of Sterling’s motion seeks to compel “information it

knows has not been withheld”. EEOC’s Brief in Opposition [224], p. 7. This is of particular concern to

me. If either party seeks to compel discovery or opposes such a motion without substantial justification

for doing so, I will consider to imposing appropriate sanctions. See Rule 37(a)(5).

-6-

3. Electronically Stored Information Sterling argues that while its requests encompass electronically stored information (“ESI”), the EEOC “has not produced a single email, and it has produced only a handful of documents that appear to be print-outs from databases”. Sterling’s Memorandum of Law [216], p. 14. In response, the EEOC represents that it “has produced all nonprivileged emails from the investigation (there were approximately 20)”. Malloy Declaration [225], ¶93. It explains that the “EEOC’s 30(b)(6) witness testified, EEOC investigators maintain their files in paper; consequently, they print all emails and place them in the file. EEOC’s witness also confirmed that that is what the investigators did in investigating these 19 charges and that the charge files are complete. The witness also testified that at the time of these investigations, most investigators communicated by mail. That correspondence - like the emails - has been produced.” Id. Sterling also argues that it “has asked the EEOC to confirm that it has searched the hard drives, network drives, e-mail accounts, personal digital assistants, and the like of relevant document custodians and preserved all electronic information contained therein”, but that “the EEOC has not provided this confirmation”. Sterling’s Memorandum of Law [216], p. 14. The EEOC responds that it “has produced relevant ESI - in the form of spreadsheets, emails, and other electronic documents”. Malloy Declaration [225], ¶94. Nowhere does the EEOC represent that it has searched its ESI for responsive documents. Nevertheless, it appears from its representations that all ESI would be included in its paper files. I conclude that these representations are sufficient at the present time, and will not require the EEOC to undertake the substantial burden of confirming these representations by a search of its ESI. However, if during the course of discovery, Sterling learns that the EEOC’s
-7-

paper files may not contain the full extent of its ESI, it may renew this aspect of its motion. In the interim, the EEOC shall preserve any responsive ESI.
4. Coordination of Discovery The EEOC objects to at least one Sterling document request “on the grounds that
it is overbroad, duplicative, and unduly burdensome in that it seeks documents that Sterling already has sought through its discovery in the private arbitration proceeding”. EEOC’s Responses to Sterling’s First Set of Requests for Production of Documents [216-1], Request No. 20. Sterling responds that “the fact that similar information may be produced in private arbitration proceedings does not in any way relieve the EEOC of its discovery obligations in this action”. Sterling’s Memorandum of Law [216], pp. 12-13.
I agree with Sterling. I previously denied the EEOC’s motion to coordinate discovery between this case and the arbitration. Thus, to the extent that responsive discovery is in the “possession, custody, or control” (consistent with the meaning of this phrase under Rule 34(a)(1)) of the EEOC, it must either be produced or identified on its privilege log, irrespective of whether it was produced to Sterling by the arbitration claimants in the arbitration. To avoid any confusion as to the scope of the EEOC’s production, the EEOC shall confirm in writing whether its production thus far has included all documents in its possession, custody or control and if not, it shall produce these documents or identify them on its privilege log.
-8-

5. Interrogatory 1 Sterling’s Interrogatory 1 requests the EEOC to “[i]dentify each person who
provided information used to answer these interrogatories and/or each and every person who assisted in developing answers to these interrogatories”, and to “identify the specific interrogatory number or numbers for which that person provided information or assistance and describe the information or assistance provided”. EEOC’s Supplemental Responses to Sterling’s Interrogatories [216-2], p. 2. The EEOC responded that “EEOC attorneys and attorneys for the arbitration claimants assisted in preparation of EEOC’s interrogatory responses.” Id.
Sterling argues that this response is insufficient because it “does not identify the particular attorneys, the specific Interrogatory number or numbers for which that person provided information or assistance, and it does not describe the information or assistance provided, as Sterling requested.” Sterling’s Memorandum of Law [216], pp. 13-14, n.7. Since the EEOC does not specifically respond to this aspect of Sterling’s motion, I will grant this aspect of Sterling’s motion.
6. Interrogatory 16 Sterling’s Interrogatory 16 asks the EEOC to identify the expert witnesses it
intends to call at trial. EEOC’s Responses to Sterling’s Interrogatories Numbered 13-19 [216-2], p. 5. The EEOC responds that “expert disclosures are not yet due” under the Case Management Order, and that since “Sterling has not produced workforce data to EEOC [, it] therefore has no admissible statistical compilations or data analyses to produce”. EEOC’s Brief in Opposition
-9-

[224], p. 5. It adds that “once Sterling produces workforce data for EEOC to provide to an expert, EEOC will be able to identify any testifying expert and serve its expert-related discovery by the deadline”. Id.
Sterling cites Rule 26(a)(2)(B)(ii) in arguing that it is entitled to the disclosure of the information underlying the EEOC’s testifying experts’ opinions (Sterling’s Memorandum of Law [216], p. 5). However, Rule 26(a)(2)(B)(ii) requires that this information be included in the EEOC’s expert report. Pursuant to the Stage I Discovery Plan and Case Management Order ([209]), which the parties jointly proposed, the EEOC is not required to identify its expert witnesses and provide expert reports until December 14, 2012. Id., ¶15. The EEOC states that it “will disclose all information required by Rule 26(a)(2) by the Court-ordered deadline for expert discovery, including all facts or data considered by its testifying expert in forming his or her opinions.” EEOC’s Brief in Opposition [224], p. 12. Therefore, this aspect of Sterling’s motion to compel is denied, without prejudice to renewal at a later date.
7. Interrogatories 2-9, 11-15 and 18 This aspect of Sterling’s motion to compel can be divided into three parts: 1)
challenging the sufficiency of the EEOC’s identification of witnesses (Sterling’s Memorandum of Law [216], pp. 5-6); 2) challenging the EEOC’s objections that Sterling is seeking information beyond the scope of Stage I discovery (id., pp. 5-6); and 3) challenging the sufficiency of the responses and objections to those requesting the factual basis for the EEOC’s pattern or practice claims (id., pp. 6-9).
-10-

a. Identification of Witnesses Sterling’s Interrogatory 2 asks the EEOC to “identify each and every person [it] believes has knowledge of any facts in anyway relating to any issue raised by the Complaint . . . providing [their contact information]; a detailed description of the knowledge believed to be possessed by each such person; all relevant issues or facts which each such person is believed to possess; and all documents, if any, which each such person is believed to have examined, has in his or her possession or has knowledge.” EEOC’s Responses to Sterling’s First Set of Interrogatories [216-2], pp. 2-3. In response, the EEOC asserts a litany of objections, including that the interrogatory “seeks information and documents that are beyond the scope of issues relevant to Stage I discovery”. Id., p. 3. Notwithstanding these objections, the EEOC notes that “potentially any and all current and former employees and managers of Sterling” may be responsive to the Interrogatory, but specifically identifies 131 individuals in addition to the 25 individuals named in its initial disclosure. Id., pp. 3-7. Of these individuals, the EEOC alleges that 114 have provided declarations detailing their knowledge of the claims in this case. Id. For the balance of the individuals identified, including the 19 charging parties, it has produced the nonpriviledged portions of its investigative files. Id., p. 3; EEOC’s Brief in Opposition [224], p. 6. Sterling argues that the EEOC has “cherry-picked” those witnesses it intends to call as Stage I witnesses. Sterling’s Memorandum of Law [216], p. 5. However, the EEOC has represented that it “is not withholding the identity of any witnesses with discoverable information about Stage I issues”, and will continue to identify Stage I witness and relevant documents from Stage I witnesses as discovery progresses (EEOC’s Brief in Opposition [224], p. 6). At this time,
-11-

that representation is sufficient to moot this aspect of Sterling’s motion. See Smith, 2009 WL 2045197 at *5.
b. Stage I Discovery Sterling argues that the EEOC’s objections that the information it seeks is beyond the scope of Stage I discovery “should be overruled”, and that it “should be ordered to supplement its responses to Interrogatories Nos. 2-9, 11-15 and 18”. Sterling’s Memorandum of Law [216], p. 6.7 It also seeks “an Order compelling the EEOC . . . to identify all persons whom the EEOC believes have knowledge of any facts relating to any issue raised by the Complaint and to state the substance of their knowledge”. Id. (citing Interrogatory 2). Notwithstanding my ruling that conducting Section 706 discovery during Stage I was inconsistent with Judge Arcara’s bifurcation order ([199], p. 8), Sterling continues to seek discovery regarding “any issued raised by the Complaint” (see, e.g., Interrogatories 2, 5) and asks the EEOC to identify witnesses with knowledge of “any facts relating to any issue raised by the Complaint”. Sterling’s Memorandum of Law [216], p. 6. On their face, these requests would appear to include discovery into the Section 706 allegations of the Complaint [199]. By contrast to the bifurcated framework here, Sterling relies on Serrano v. Cintas Corp., 2010 WL 3789690 (E.D. Mich 2010) (Sterling’s Memorandum of Law [216], p.6), which was not bifurcated into Stage I and Stage II discovery and did not include a Section 707 pattern

7

The EEOC’s responses to Interrogatories 4, 9, 12-14, and 18 do not raise the objection

that they seek discovery beyond the scope of Stage I.

-12-

or practice claim. See Serrano v. Cintas Corp., 711 F.Supp.2d 782, 784 (E.D.Mich. 2010), motion to certify appeal denied, 2010 WL 940164. 8
I recognize that Stage I and Stage II discovery may not readily be compartmentalized, since “[i]n proving pattern and practice liability . . . the EEOC, usually rel[ies] on individual testimony concerning specific instances of discrimination (so-called ‘anecdotal evidence’), statistical data and expert opinions concerning statistical data”. EEOC v. Carrols Corp., 215 F.R.D. 46, 50 (N.D.N.Y. 2003). However, as noted by the EEOC, a number of Sterling’s interrogatories clearly seek Stage II discovery by requesting information concerning damages. See e.g., Interrogatory 6 (“For each allegedly injured individual for whom the EEOC seeks back pay damages, identify . . . the amount of back pay sought, and the computations leading to such an amount”); Interrogatory 7 (“For each current or former employee of Defendant who you contend Defendants [sic] failed to promote because of gender . . . state the amount of back pay and other damages the EEOC seeks on behalf of each such individual”); Interrogatory 8 (“For each current or former employee of Defendant who you contend was deterred from applying for a promotion with Defendant . . . state the amount of back pay and other damages the EEOC seeks on behalf of each such individual”); and Interrogatory 11 (“If the EEOC knows of any statements made by any individuals concerning Plaintiff’s claims of discrimination . . . or the

8

In my July 15, 2010 Decision and Order ([139]) I relied on Serrano v. Cintas, 2010 WL

746430 (E.D. Mich. 2010) in concluding that, with respect to Interrogatory 3, “Sterling is not entitled to

know how the EEOC identified the individuals that were allegedly discriminated against as protected

work product, but that it is entitled to the identity of these individuals”. Id., p. 9. To the extent this aspect

of that Decision and Order is inconsistent with to Judge Arcara’s April 25, 2011 Decision and Order

bifurcating the case [169] and with my October 7, 2011 Decision and Order [199] addressing

bifurcation, the later decisions control.

-13-

damages caused therefrom”). Therefore, I see no reason to overrule the EEOC’s objections that Sterling is requesting information beyond Stage I discovery with respect to these interrogatories.
However, I reach a different conclusion with respect Interrogatories 3 and 15. Interrogatory 3 asks the EEOC to “[d]escribe in detail [its] efforts . . .to determine the identities of any current or former employee of Defendant who was paid less than male counterparts . . . and who purportedly were denied and/or did not receive a promotion or pay increase due to their gender.” EEOC’s Responses to Sterling’s First Set of Interrogatories [216-2], Ex. B, p. 7. I fail to see how the identification of efforts used to locate current or former employees has anything to do with Stage II discovery.
Interrogatory 15 asks the EEOC to “[i]dentify all legal or administrative proceedings (including, but not limited to, civil actions, criminal actions, and charges of discrimination) to which [31 current and former female employees of Sterling] ha[ve] been a party”. EEOC’s Responses to Sterling’s Interrogatories Numbered 13-19 [216-2], p. 4. As discussed above, anecdotal evidence of discrimination may be used in proving pattern or practice liability. See EEOC v. Carrols Corp., 215 F.R.D. at 50. These proceeding may include anecdotal evidence of discrimination that could be used in proving pattern or practice liability. Thus, unless the EEOC confirms that it will not rely on such evidence in establishing its pattern or practice claim, I am unable to sustain the EEOC’s objection.
c. Basis of the EEOC’s Claims Sterling argues that “[p]resumably, the EEOC had a factual basis for bringing [its] specific allegations before filing its Complaint”, and that Interrogatories 9 and 18, “merely ask[]
-14-

the EEOC to take a stand and identify that information”. Sterling’s Memorandum of Law [216],
pp. 6-7.
• Interrogatory 9 asks the EEOC to “[i]dentify all ‘system[s] for making promotions and compensation decisions’ the EEOC claims are ‘excessively subjective’ and which EEOC claims Defendant utilized to permit or encourage gender discrimination.” EEOC’s Responses to Sterling’s First Set of Interrogatories [216-2], p. 12.
• Interrogatory 18 asks the EEOC to “explain in detail [its] basis for claiming [in paragraph 10 of the Complaint] that any alleged ‘unlawful employment practices complained of in paragraphs 7-8 [ ] were and are intentional’”. EEOC’s Responses to Sterling’s Interrogatories Numbered 13-19 [216-2], p. 6.
With respect to Interrogatories 5, 9, 13, and 14, Sterling also argues that “[t]o test
the EEOC’s allegation that Sterling had a systematic practice of discriminating on the basis of
sex . . . the EEOC must provide information in the EEOC’s possession regarding Sterling’s pay
practices for its male employees, as the time has come for the EEOC to explain how in intends to
prove its case and what facts support its lawsuit”. Sterling’s Memorandum of Law [216], p. 8.
• Interrogatory 5 asks the EEOC to “describe in detail the discriminatory treatment [each allegedly injured individual identified in response to Interrogatory 4] experienced, identifying each incident of alleged discrimination, the agent of Defendant who you contend made the discriminatory decisions”. EEOC’s Responses to Sterling’s First Set of Interrogatories [216-2], pp. 8-9.
• Interrogatory 13 asks the EEOC to produce a variety of information for Sterling’s male employees who were allegedly paid higher wages than their similarly situated female counterparts. Id., pp. 14-15.
• Interrogatory 14 asks the EEOC to “[i]dentify any current and/or former female employees whom Plaintiff is aware received a pay raise and/or promotion during her employment with Defendant and identify any circumstances surrounding that pay raise and/or promotion of which Plaintiff is aware”. Id., p. 15.
-15-

Without identifying which interrogatories it is referencing, the EEOC argues that “Sterling has served contention interrogatories on EEOC that would require EEOC to set forth every fact and piece of evidence that EEOC’s attorney’s believe is relevant”, and that “[n]umerous courts have held that interrogatories such as these ‘. . . are inherently improper’”. EEOC’s Brief in Opposition [224], p. 12 (quoting Clean Earth Remediation & Construction Services, Inc. v. American International Group, Inc., 245 F.R.D. 137 (S.D.N.Y. 2007)). “Contention interrogatories ask a party: to state what it contends; to state whether it makes a specified contention; to state all the facts upon which it bases a contention; to take a position, and explain or defend that position, with respect to how the law applies to facts; or to state the legal or theoretical basis for a contention. . . . However, questions seeking the identification of witnesses or documents are not contention interrogatories.” B. Braun Medical Inc. v. Abbott Laboratories, 155 F.R.D. 525, 527 (E.D.Pa. 1994).
It appears that at least some of Sterling’s interrogatories may be considered contention interrogatories seeking identification of facts upon which the EEOC bases its claims. The EEOC argues that this type of “contention interrogatory, if appropriate at all, should be answered at the end of discovery”. EEOC’s Brief in Opposition [224], p. 15. “Courts will . . . often defer ordering answers to contention interrogatories until the end of discovery and a requesting party will be required to show how an earlier response assists the goals of discovery such as exposing a substantial basis for a motion under Fed.R.Civ.P. 11 and 56.” Brown v. United States, 179 F.R.D. 101, 105 (W.D.N.Y. 1998)(Foschio, M.J.). See Rule 33(a)(2) (“An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be
-16-

answered until designated discovery is complete, or until a pretrial conference or some other time”); Roth v. Bank of Commonwealth, 1988 WL 43963, *5 (W.D.N.Y. 1988) (Elfvin, J.) (“This Court finds that twenty-four of the forty-eight interrogatories are contention interrogatories and need not be answered until the substantial completion of pretrial discovery”).
Considering that the exchange of discovery is at a relatively early stage and remains ongoing, at this time, I will sustain the EEOC’s objections to these interrogatories as being premature or seeking information currently in Sterling’s own control. However, I will not attempt to guess which interrogatories the EEOC believes are contention interrogatories, and since Sterling did not have the opportunity to reply to the EEOC’s argument that these constitute improper contention interrogatories, I am reluctant to address whether Sterling has asked any improper contention interrogatories. If the EEOC does not supplement its response to these interrogatories as discovery progresses, including those allegedly directed at the EEOC’s investigation before filing the Complaint, Sterling may renew its motion to compel, and at that time I will address whether Sterling’s contention interrogatories are permissible.
Therefore, this aspect of Sterling’s motion is denied, without prejudice to renewal.
B. The EEOC’s Motion to Compel 1. Interrogatories 2 and 3 There are two interrogatories in dispute. The EEOC’s Interrogatory 2 asks
Sterling to “[i]dentify each employee who worked for Sterling in retail operations at any time during the relevant time period” and to provide their contact information, social security number,
-17-

employee number, position, store number(s) where the employee worked, sex, date of hire and termination/resignation and reason for termination/resignation. Malloy Declaration [219], Ex. 4, p. 5. The EEOC has indicated that this request is intended “to cover all positions in retail operations . . . includ[ing] sales associates, store managers and assistant managers, district managers, and regional managers”. Sterling’s Opposing Brief [223], Ex. 1, pp. 1-2. Sterling objected to this interrogatory as being overly broad, unduly broad, and seeking information not reasonably calculated to lead to the discovery of admissible evidence. Malloy Declaration [219], Ex. 9, p. 4. It also objected that the production of complete addresses, telephone numbers, social security numbers, and reasons for termination/resignation are of a “highly personal and confidential nature” and “legally protected from disclosure”. Id, pp. 4-5. The EEOC has since clarified that it is not asking Sterling to identify current managers (id., p. 2) and that it is requesting this information from January 1, 2000 to the present. EEOC’s Brief in Support [220], p. 2.
Interrogatory 3 asks Sterling to “[i]dentify each person who has relevant knowledge concerning any claim, defense, allegation, denial, or contention in this action, and for each person identified, describe the substance of that person’s knowledge.” Malloy Declaration [219], Ex. 4, p. 6. Sterling objected to his request, but nevertheless identified 107 “complaining parties”, including their city and state of residence. Id., Ex. 9, pp. 5-10. It has also identified Sterling personnel by name and title and has more generally identified categories of Sterling employees, including “district , general and/or store managers”, “regional vice presidents” , and “certain employees of the EEOC (including its investigators)”. Id., pp. 10-11. Sterling’s
-18-

interrogatory response to Interrogatory 3 also states that the its “personnel may be contacted through . . . counsel” Id.
“‘It is plain that the scope of discovery through interrogatories and requests for production of documents is limited only by relevance and burdensomeness, and in an EEOC case the discovery scope is extensive.’” EEOC v. University of Phoenix, Inc., 2007 WL 1302578, *3 (D.N.M. 2007) (quoting Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir.1975)). As a threshold issue, the parties dispute which party bears the burden of proof of establishing relevance. The EEOC cites cases holding that “[a] party resisting discovery has the burden of showing ‘specifically how, despite the broad and liberal construction afforded the federal discovery rules, each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive, . . . by submitting affidavits or offering evidence revealing the nature of the burden’” (Arias-Zeballos v. Tan, 2007 WL 1599150, *2 (S.D.N.Y. 2007), quoted in EEOC’s Brief in Support [220], p. 3), whereas Sterling cites authority that as the proponent of the request, the EEOC bears the burden of showing relevance (Sterling’s Brief in Opposition [223], pp. 4-5, citing EEOC v. Supervalu, Inc., 2010 WL 5071196, *2 (N.D.Ill. 2010)).
Although I acknowledge the authority cited by the EEOC, I believe that the prevailing view is that “[t]he burden of demonstrating relevance is on the party seeking discovery.” Lent v. Signature Truck Systems, Inc., 2010 WL 1707998, *2 (W.D.N.Y. 2010) (Scott, M.J.). It is only “[w]here . . . the documents are relevant, [that] the burden is upon the party seeking non-disclosure”. Penthouse International, Ltd., 663 F.2d at 391.
The scope of discovery is broad, and the information sought by the EEOC is considered relevant so long as it “appears reasonably calculated to lead to the discovery of
-19-

admissible evidence”. Rule 26(b)(1). The EEOC argues that this information is relevant since it “needs to interview current and former employees to discover anecdotal evidence necessary to prove its claims that Sterling has engaged in widespread discrimination”. EEOC’s Brief in Support [220], pp. 8-9. I agree with the EEOC.
“The EEOC is charged with investigating pattern and practice claims and, in order to do so, needs access to relevant employees.” EEOC v. Morgan Stanley & Co., Inc., 2002 WL 31108179, *1 (S.D.N.Y. 2002); EEOC v. Lexus Serramonte, 2006 WL 2329510, *2 (N.D.Cal. 2006), objections overruled, 2006 WL 2567878 (“A court may reasonably order a defendant to provide contact information, including telephone numbers and addresses for its employees from the relevant class period”). “Defendant has access to this information, and plaintiff should have the same access.” Babbitt v. Albertson’s, Inc., 1992 WL 605652, *6 (N.D.Cal. 1992) (permitting class certification discovery to include the production of the names, addresses, telephone numbers and social security numbers of current and past employees since 1985).
Sterling argues that “the EEOC’s request is based on the theoretical possibility that some employees might have relevant information” and thereby “amounts to an improper fishing expedition.” Sterling’s Opposing Brief [223], p. 5. I disagree. “The EEOC is not fishing. Rather, the EEOC is pursuing its congressional mandate to enforce Title VII through the pursuit of litigation, including, relevant discovery that would support its litigation. Without basic identifying information such as addresses, the EEOC cannot locate potential witnesses. . . . Further, there may be additional employees, whom [the claimant] does know or has not identified, who either experienced or witnessed . . . discrimination . . . and the EEOC is entitled
-20-

to discovery regarding those individuals.” EEOC v. University of Phoenix, Inc., 2007 WL 1302578 at *6.9
I also agree with the EEOC that its ability “to contact potential witnesses is meaningless if [it] does not have contact information for employees and former employees”. EEOC’s Brief in Support [220], p. 9. See EEOC v. University of Phoenix, Inc., 2007 WL 1302578 at *6 (“if any of the witnesses have moved since being employed . . . , finding them without identifiers such as social security numbers and dates of birth may be significantly more difficult and expensive”). To the extent Sterling has “privacy concerns” about the production of social security numbers, the EEOC has agreed that this information would be protected under the Confidentiality Order. EEOC’s Brief [220], p. 9 n. 2.
Since the EEOC has demonstrated that the information sought is relevant, the burden shifts to Sterling to show why disclosure is not warranted. It argues that “the burden . . . to provide this broad universe of information for so many individuals over such a long period of time outweighs the potential relevance it has to the litigation. The EEOC’s request encompasses approximately 75,000 employees, and workforce data for some of those individuals was purged prior to the institution of the EEOC’s proceedings and recovering and producing that data would add additional burdens to Sterling.” Sterling’s Brief in Opposition [223], p. 6. Despite its claims

9

Compare with US EEOC v. ABM Industries Inc., 2008 WL 5385618, *8 (E.D.Cal.

2008) (“It appears to the Court that the only purpose of statewide discovery at this point, would be to

allow Plaintiffs to search for other employees with colorable claims, with no factual nexus other than the

fact that they do or did work for Defendants. In the Court’s view, this would constitute a ‘fishing

expedition’ and an inappropriate use of discovery”).

-21-

of burden, according to Michael D. Lynch, Sterling’s Vice President of Employee Relations, Sterling “has compiled and prepared for production workforce data dating back to January 1, 2001”, but that producing records back to January 1, 2000 would be additionally burdensome “as the information was purged and may not be recoverable”. [223-3], ¶10.10
Sterling’s claims of undue burden are also difficult to reconcile with the fact that it has already compiled the information responsive to EEOC’s interrogatories to January 1, 2001. To the extent it has done so, this information shall be produced. It is not clear to me whether the workforce data compiled by Sterling covers the full extent of data requested by the EEOC (e.g., the reason for termination/resignation and contact information). Should this production not satisfy the full breadth of information sought by the EEOC, it may renew its motion.
While the information compiled by Sterling does not cover the full time frame requested by the EEOC, if the EEOC “cannot establish a pattern or practice . . . during that time frame, it is doubtful that an additional [period] of information will get the job done.” EEOC v. CRST Van Expedited, Inc., 2009 WL 395211, *3 (N.D.Iowa 2009) (requiring production of sexual harassment complaints for a period of 45 1/2 months, but denying an additional three months of information).
Therefore, at this time I will not require Sterling to undertake the additional burden of attempting to compile responsive information from January 1, 2000 to January 1, 2001.

10

While Mr. Lynch’s declaration does not address why this data was compiled, Arbitrator

Roberts has ordered Sterling to produced the data. Malloy Declaration [219], ¶40. While the effect of

producing the work force data in the AAA arbitration of Jock, et al. v. Sterling Jewelers, Inc. may have

may have been to moot Sterling’s arguments of undue burden, this should not be construed as

reconsideration of my decision ([97]) denying coordination of discovery between this case and the

arbitration. Sterling’s Opposing Brief [223], p. 16.

-22-

However, if the EEOC can demonstrate a particularized need for obtaining information dating back to 2000, it may renew its motion for this production.
2. Ex Parte Interviews with Former Employees and Current Nonmanagerial Employees While the EEOC disputes Sterling’s ability to require it to contact its employees
through Sterling’s counsel (EEOC’s Brief in Support [220], p. 13), Sterling argues that the EEOC has never conferred with it about this issue before raising it in its motion, and “requests an opportunity to be heard after conferring with the EEOC on this issue”. Sterling’s Brief [223], p. 9. Without the benefit of Sterling’s substantive response to EEOC’s argument, it does seem that ex parte interviews with certain classes of Sterling’s employees may be justified. See Judd v. Take-Two Interactive Software, Inc., 2008 WL 906076, *1 (S.D.N.Y. 2008) (“As a general rule, a party cannot prevent an adverse party from conducting ex parte interviews with its former employees”); Chambers v. Capital Cities/ABC, 159 F.R.D. 441, 443 (S.D.N.Y. 1995)(“Where ex parte interviews with current employees are permitted, only non-managerial personnel are usually allowed to be so interviewed”).
Nevertheless, I agree with Sterling that the EEOC’s motion is premature, and deny this aspect of the EEOC’s motion on this basis, without prejudice to renewal following further discussion between the parties.
3. Redactions The EEOC argues that Sterling has “redacted relevant information from numerous
documents”, and seeks an order requiring “Sterling to produce unredacted versions of all documents”. EEOC’s Supporting Brief [220], pp. 15, 17. However, it expressly identifies only
-23-

one redacted document (Malloy Declaration [219], Ex. 22) which it has submitted to me under seal pursuant to the Confidentiality Order. Id., p. 16.
Given the limited nature of what is before me, I am in no position to address the propriety of all of Sterling’s redactions. With respect to Exhibit 22, Sterling argues that by submitting it “in camera”,11 the EEOC has “deprived Sterling of the opportunity to analyze them and explain to the Court the basis for the redactions”. Sterling’s Brief in Opposition [223], p. 14. Sterling asks that if I am “inclined to consider the documents improperly submitted by the EEOC”, that it be afforded the “opportunity to address the issue”. Id.
Although I am not certain what Sterling will argue that it has not already argued or could have argued,12 out of an abundance of caution I will provide Sterling with a brief opportunity to provide me with an unredacted copy of Exhibit 22 for my in camera review and to respond to this aspect of the EEOC’s motion to compel. This shall be accomplished by May 25, 2012. In the interim, this may also provide the EEOC with the opportunity to identify with particularity any additional redactions it is challenging.

11

I question why Sterling would not have had an opportunity to review the exhibit when it

produced it to the EEOC. Thus, Sterling’s argument that the EEOC had an obligation to put it on notice

of the submission appears misplaced. See Sterling’s Opposing Brief [223], p. 13, citing Parisi v.

Rochester Cardiothoractic Associates, 159 F.R.D. 406, 407 (W.D.N.Y. 1995)(Fisher, M.J.) (addressing

an in camera ex parte review)).

12

It appears that the EEOC has not complied with the Confidentiality Order which requires

that any party seeking to use Confidential Information in a court filing “must give the Producing Party at

least ten . . . business days advance notice of its intent” to permit them to move for a protective order or

to seal ([206], ¶16). See Maatman Declaration [223-4], ¶6. Nevertheless, this is a nullity because by

filing the exhibit under seal, the EEOC has preserved its confidentiality, and Sterling has since filed a

motion seeking to maintain this document under seal [229].

-24-

4. Self-Critical Analysis The EEOC argues that “[i]n response to a number of document requests and in its
privilege log, Sterling has asserted a ‘self-critical analysis privilege’”, which has not been recognized in the Second Circuit as a matter of federal law. EEOC’s Brief [220], p. 22. Alternatively, it argues that at best, this has been recognized as a qualified privilege, but that “Sterling has made no effort to show that it would even apply”. Id. at p. 23.
“The self-critical analysis privilege is ‘a qualified privilege that protects from disclosure documents reflecting a party’s own forthright evaluation of its compliance with regulatory, legal or professional standards.’ . . . ‘Where a party has conducted a confidential analysis of its own performance in a matter implicating a substantial public interest, with a view towards correction of errors, a recognized self-critical analysis privilege may relieve the party of its obligation to provide the purely analytical material, absent a showing of need by the other side, in order to encourage continued candid self-evaluations.’” Robinson v. Troyan, 2011 WL 5416324, *4 (E.D.N.Y. 2011) (quoting In re Winstar Communications, Securities Litigation, 2007 WL 4115812, *1 (S.D.N.Y. 2007)). However, this privilege is “not universally recognized”. In re Winstar Communications, Securities Litigation, 2007 WL 4115812 at *1. “Although some federal courts have recognized a self-critical analysis privilege, its continuing viability is an open question.” Ovesen v. Mitsubishi Heavy Industries of America Inc., 2009 WL 195853, *2 (S.D.N.Y. 2009).
Interpreting the Supreme Court’s decision in University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990) (which rejected a ‘peer-review’ privilege) as “implicitly reject[ing] the rationale for a self-evaluation privilege”, and relying on the fact that no Circuit Courts, including
-25-

the Second Circuit, have accepted the privilege, this court has rejected the self-evaluation privilege. See Roberts v. Hunt, 187 F.R.D. 71, 75-76 (W.D.N.Y. 1999) (Foschio, M.J.); Robbins & Myers, Inc. v. J.M. Huber Corp., 2003 WL 21384304, *4 (W.D.N.Y. 2003)(Elfvin, J.)(“This Court declines to recognize the privilege of self-critical analysis at this time”, citing Robinson v. United States, 205 F.R.D. 104, 108–109 (W.D.N.Y. 2001) (Curtin, J.) (noting that the self-critical analysis privilege has not been adopted by the Second Circuit Court of Appeals and has been rejected in this district)).13
As Magistrate Judge Foschio explained in Roberts (187 F.R.D. at 76), “it is not reasonable to believe that organizations will not comply with employment discrimination laws unless independent surveys revealing potential violations are deemed privileged. As noted, organizations have a self-interest in achieving compliance with the law and social expectations. Managers need only to scrutinize their workforce to determine if there are indications of potential discrimination. Governmental agencies have no less an incentive to promote equal opportunity in the workplace.”
I recognize that a number of decisions from the Southern District of New York have recognized the existence of this privilege. See e.g., Robinson, 2011 WL 5416324 at *4; In re Winstar Communications, Securities Litigation, 2007 WL 4115812 at *1. However, even those courts “have found that it is a qualified, not absolute, privilege”. Francis v. United States, 2011 WL 2224509, *7 (S.D.N.Y. 2011). “At a minimum, the party invoking the privilege must demonstrate that ‘the information . . . result[ed] from a critical self-analysis undertaken by the

13

In Robinson, a tort case, Judge Curtin ultimately treated it as a qualified privilege and

analyzed the documents in camera. 205 F.R.D. at 110.

-26-

party seeking protection; [that] the public [has] a strong interest in preserving the free flow of the type of information sought; [and that] the information [is] of the type whose flow would be curtailed if the discovery were allowed.’ Note, ‘The Privilege of Self–Critical Analysis,’ 96 Harv. L.Rev. 1083, 1086 (1983). Furthermore, the documents at issue must be purely evaluative, . . . and must have been prepared and retained on a confidential basis.” Wimer v. Sealand Service, Inc., 1997 WL 375661, *1 (S.D.N.Y. 1997).
Even if I were to recognize the critical self-analysis privilege, Sterling has not established that it should apply here. It merely argues that “[i]f efforts made to investigate and remediate alleged employment discrimination are subject to discovery in subsequent litigation, it will have a chilling effect on such investigations and remedial efforts.” Sterling’s Brief in Opposition [223], p. 15. This plainly is insufficient to meet Sterling’s burden of establishing the applicability of this privilege. Therefore, this aspect of the EEOC’s motion is granted.
CONCLUSION Sterling’s Motion to Compel For these reasons, Sterling’s motion to compel ([215]) is granted to the extent it seeks 1) to overrule the EEOC’s objection to Sterling document requests as seeking documents Sterling has already sought through its discovery in the arbitration proceeding, 2) to overrule the EEOC’s objections to interrogatories 3 and 15 as being beyond the scope of Stage I discovery, and 3) to compel a complete response to Interrogatory 1; but it is denied to the extent it seeks 1) to compel further responses to its document requests, including the production of ESI, 2) to compel an amended privilege log, and 3) to compel supplemental responses to Interrogatories 2,
-27-

4-9, 11-14, and 18, without prejudice to renewal. I reserve decision on that aspect of the motion challenging the EEOC’s redactions ([216], Point V) pending my in camera review of the unredacted documents and the parties’ supplemental submissions.
Based upon these rulings, by May 25, 2012: 1) the EEOC shall supplement its response to Interrogatory 1; 2) the EEOC shall supplement its responses to Interrogatories 3 and 15, if necessary, to the extent its objections have been overruled; 3) the EEOC shall confirm in writing whether its production thus far has included all documents in its possession, custody or control and if not, the EEOC shall produce these documents or identify them on its privilege log; and 4) the EEOC shall produce to me for my in camera review unredacted copies of document Nos. E000002736-2787 and 2853-2858, and may accompany this production with a written explanation (with a copy to Sterling) as to why its redactions are proper, and Sterling may respond in writing by June 1, 2012.
EEOC’s Motion to Compel The EEOC’s motion to compel ([218]) is granted to the extent that it seeks 1) Sterling to produce the workforce data it has compiled dating back to January 1, 2001, and 2) to overrule Sterling’s reliance on the self-critical analysis privilege; but it is denied to the extent that it seeks to conduct ex parte interviews with Sterling’s former employees, without prejudice to renewal. I reserve decision on that aspect of the motion challenging Sterling’s redactions ([218], pp. 15-16) pending my in camera review of the unredacted documents and the parties’ supplemental submissions.
-28-

Based upon these rulings, by May 25, 2012 Sterling shall 1) produce the workforce data it has compiled to the EEOC; and 2) produce for my in camera review an unredacted version of Exhibit 22 and may accompany this production with a written explanation (with a copy to the EEOC) as to why its redactions are proper, and the EEOC may respond in writing by June 1, 2012. SO ORDERED. Dated: May 14, 2012
/s/ Jeremiah J. McCarthy JEREMIAH J. MCCARTHY United States Magistrate Judge
-29-

 
 Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ______________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

REPORT, RECOMMENDATION AND ORDER

v.

08-CV-00706(A)(M)

STERLING JEWELERS INC.,

Defendant. ______________________________________

Before me are two motions by defendant Sterling Jewelers, Inc. (“Sterling”): a motion for partial summary judgment [336],1 and a motion to strike portions of the Statement of

Facts of plaintiff Equal Employment Opportunity Commission (“EEOC”) [370]. Oral argument

was held on December 9, 2013 [376]. For the following reasons, Sterling’s motion to strike is

denied as moot, and I recommend that its motion for partial summary judgment be granted in part

and denied in part.

BACKGROUND Between May 2005 and November 2006, 19 female employees (the “Charging Parties”) at Sterling’s stores in New York, Florida, California, Massachusetts, Missouri, Nevada, Indiana and Texas filed charges with the EEOC against Sterling on behalf of themselves and similarly situated employees, alleging sex discrimination in pay and/or promotions. EEOC’s Brief [362], p. 1. The charges were investigated by five EEOC investigators. [376], p. 12. By

1

Bracketed references are to CM/ECF docket entries.

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 2 of 20
June 2007, the charges were transferred to the EEOC’s Buffalo office, and were assigned to a single investigator, David Ging. EEOC’s Brief [362], p. 1.
On January 25, 2007 the EEOC, Sterling and the Charging Parties entered into a “Mediation and Confidentiality Agreement” calling for the EEOC’s participation in a mediation between Sterling and the Charging Parties. [365-13], pp. 2 of 22 et seq. That Agreement provided that “the Parties shall not rely on, or introduce as evidence in any court, arbitration, judicial, or other proceeding any information disclosed by any other party, their experts, or by the Mediator regarding such other party in the course of or pursuant to the mediation”. Id., ¶10.
During the mediation, counsel for the Charging Parties submitted a statistical analysis of Sterling’s pay and promotion data prepared by their expert, Dr. Louis Lanier, dated September 4, 2007 and bearing the legend “For Settlement Purposes Only” [339-32]. The parties subsequently modified the Mediation and Confidentiality Agreement to provide that the “EEOC may place Dr. Lanier’s tables and explanatory notes in its investigatory file. However, such tables shall not lose their mediation privilege”. [365-13], p. 10 of 22, ¶4.
In November 2007, Mr. Ging wrote to counsel for the Charging Parties and Sterling, stating:
“I have been informed by [EEOC] Regional Attorney Elizabeth Grossman that the outside mediation process regarding the abovereferenced charges has been on unsuccessful. I understand that Ms. Grossman has [Sterling’s] permission to provide me its documents exchanged in conjunction with the mediation which are numbered 0001-3348. I further understand that Ms. Grossman has Charging Parties’ and [Sterling’s] permission to provide me with Dr. Lanier’s tables and explanatory notes prepared in conjunction with the mediation.
-2-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 3 of 20

Ms. Grossman has agreed that Dr. Lanier’s analysis in the underlying data shall not lose its mediation privilege and will not be disclosed to any non-Charging Party.
While the Commission will not be making additional requests for information, both parties are encouraged to provide any further information you wish to be considered by the Commission to me by November 21, 2007.”
[363-1], pp. 36-37 of 189.
Although Sterling did not provide any additional information in response to that
invitation,2 on November 30, 2007 counsel for the Charging Parties wrote to Mr. Ging, stating
that “[o]ur clients and other women similarly situated to them claim they have been subjected to
a pattern and practice of sex discrimination in compensation and promotion decisions at Sterling
Jewelers stores. This letter and accompanying exhibits set forth the factual, legal and statistical
support of the Charging Parties’ claims. We hope this information is helpful to your
investigation”. [363-1], p. 71 of 189. However, Mr. Ging did not recall having received this
letter ([339-24], pp. 187-88), and when asked whether he reviewed it as part of his investigation
into the charges against Sterling, he replied “I can’t be sure that I did”. Id., p. 188.
On January 3, 2008 the EEOC issued a Letter of Determination, stating:
“The investigation determined that Respondent subjected Charging Parties and a class of female employees with retail sales responsibilities nationwide to a pattern or practice of sex discrimination in regard to promotion and compensation. Statistical analysis of pay and promotion data provided by Respondent reveals that Respondent promoted male employees at a statistically significant, higher rate than similarly situated female employees and that Respondent compensated male employees at a

2

The parties had agreed that “Sterling shall be under no obligation to provide additional

information or documentation relating to the Charges” in connection with the EEOC administrative

investigation. [365-13], ¶8.

-3-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 4 of 20
statistically significant, higher rate than similarly situated female employees. Witness testimony further corroborates the allegations.” [339-34], p. 4. The EEOC commenced this action on September 23, 2008, alleging that “[s]ince at least January 1, 2003, Sterling has engaged in unlawful employment practices throughout its stores nationwide” by discriminating against female employees in promotion and compensation, in violation of Title VII, 42 U.S.C. §§2000e-2(a) and 2000e-2(k). Complaint [1], ¶¶7, 8. It seeks relief for 19 individual employees (the “Charging Parties”) as well as for “other female retail sales employees”. Id., ¶6; “Prayer for Relief”, ¶¶C-F. In moving for partial summary judgment, Sterling argues that since there is no evidence that the EEOC conducted a nationwide investigation of its employment practices prior to commencing this action, its claims of nationwide discrimination must be dismissed. Sterling’s Memorandum of Law [337], Points I and II. The EEOC responds that “the Courts should not inquire into the sufficiency of [its] investigation”. EEOC’s Brief [362], p. 5.
ANALYSIS A. May the Court Inquire as to the Scope of the EEOC’s Pre-Suit Investigation?
“[T]he EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion. Unlike the typical litigant . . . the EEOC is required by law to
-4-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 5 of 20
refrain from commencing a civil action until it has discharged its administrative duties.” Occidental Life Insurance Co. of California v. E.E.O.C., 432 U.S. 355, 368 (1977).
“Before the EEOC is able to file a lawsuit in its name, it must establish that it has met four conditions precedent, namely: the existence of a timely charge of discrimination, the fact that EEOC conducted an investigation, issued a reasonable cause determination, and attempted conciliation prior to filing suit.” E.E.O.C. v. Grane Healthcare Co., 2013 WL 1102880, *3 (W.D.Pa. 2013); Occidental, 432 U.S. at 359-60; 42 U.S.C. §2000e-5(b).
While the EEOC alleges that “[a]ll conditions precedent to the institution of this lawsuit have been satisfied” (Complaint [1], ¶6), Sterling replies that the claims are “beyond the scope of any administrative charge or the EEOC’s investigation thereof, were not subject to administrative investigation . . . processes, and/or were not included in any investigation . . . by the EEOC”. Answer [8], Sixth Affirmative Defense. Sterling’s denial of EEOC’s performance of a condition precedent (namely, a pre-suit investigation) as an affirmative defense does not shift the burden of proof on that issue to Sterling - instead, it remains the EEOC’s burden to prove performance of that condition. See Dynasty Apparel Industries Inc. v. Rentz, 206 F.R.D. 603, 607 (S.D.Ohio 2002); 2 Moore’s Federal Practice, §9.04[4] (Matthew Bender 3d ed.).
The fact that “a district court should not examine the adequacy of an EEOC[ ] investigation” does not mean that it “should not examine whether the investigation occurred at all”. Grane Healthcare, *5. “Whether the EEOC fulfilled its statutory duties as a precondition to suit is a proper issue for the district court to decide . . . . To rule to the contrary would severely undermine if not completely eviscerate Title VII’s integrated, multistep enforcement procedure.”
-5-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 6 of 20
Equal Employment Opportunity Commission v. Swissport Fueling, Inc., 916 F.Supp.2d 1005, 1036 (D.Ariz. 2013).
Therefore, while courts “will not review the sufficiency of the EEOC’s pre-suit investigation . . . . courts will review whether an investigation occurred”. EEOC v. JBS USA, LLC, 940 F. Supp.2d 949, 964 (D.Neb. 2013); EEOC v. Hibbing Taconite Co., 266 F.R.D. 260, 272 (D.Minn. 2009). They may also examine the scope of that investigation, for while “[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable”, General Telephone Co. of the Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 331 (1980), “it must discover such individuals and wrongdoing during the course of its investigation”. E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 674 (8th Cir. 2012) (emphasis in original). “Where the scope of its pre-litigation efforts [is] limited - in terms of geography, number of claimants, or nature of claims - the EEOC may not use discovery in the resulting lawsuit as a fishing expedition to uncover more violations.” Id. at 675.
Accordingly, in determining whether a particular claim may be asserted in an EEOC complaint, “the relationship between the complaint and the scope of the investigation is central”. E.E.O.C. v. Jillian’s of Indianapolis, IN, Inc., 279 F. Supp.2d 974, 980 (S.D.Ind. 2003). “Courts have limited the EEOC’s complaint where it exceeds the scope of the investigation.” E.E.O.C. v. Dots, LLC, 2010 WL 5057168, *2 (N.D.Ind. 2010).
For example, in E.E.O.C. v. Bloomberg L.P., ___F. Supp.2d___, 2013 WL 4799150 **7, 9 (S.D.N.Y. 2013) the court granted summary judgment dismissing the EEOC’s claims for individual relief, finding that its pre-suit investigation was class-wide only: “the Court
-6-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 7 of 20
holds that its prior finding that the EEOC satisfied its pre-litigation obligations with respect to a class-wide claim applies to that class-wide claim only and that it must look independently at whether the EEOC fulfilled its statutory pre-litigation requirements with respect to the individual claims upon which it purports to continue this litigation . . . . Thus, the Court holds that no genuine issue of fact remains as to whether the EEOC investigated any of the Section 706 individual claims prior to commencing litigation.”
Similarly, in Jillian’s the court granted summary judgment dismissing the EEOC’s claims of nationwide discrimination, finding that the EEOC had failed to conduct a nationwide investigation: “[t]he nationwide class named in the EEOC’s Amended Complaint is not reasonably anticipated in its investigation into the four charges filed against Jillian’s Indianapolis. The EEOC’s investigation of the four charges was conducted entirely with respect to Jillian’s Indianapolis. Its Amended Complaint, alleging a nationwide class, has insufficient basis in its actual investigation . . . . For these reasons, we GRANT Jillian’s motion for summary judgment with respect to the EEOC’s nationwide pattern or practice claim.” 279 F.Supp.2d at 980, 983 (emphasis in original).
Therefore, I must decide whether there is a triable issue of fact as to whether the EEOC conducted a nationwide investigation of Sterling’s employment practices prior to commencing this action.
-7-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 8 of 20
B. Can the EEOC Prove that it Conducted a Nationwide Investigation of Sterling’s Employment Practices? Because the EEOC bears the burden of proving that it satisfied all conditions
precedent to maintaining this action, Sterling need not prove that the EEOC did not conduct a nationwide investigation - rather, in order to avoid summary judgment, the EEOC must point to evidence showing that it did. “A defendant need not prove a negative when it moves for summary judgment on an issue that the plaintiff must prove at trial. It need only point to an absence of proof on plaintiff’s part, and, at that point, plaintiff must designate specific facts showing that there is a genuine issue for trial.” Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100, 111 (2d Cir. 2001). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The EEOC admits that there is “little investigative material in the files beyond the charges, Sterling’s responses, and other correspondence.” EEOC’s Memorandum of Law [110], p. 15. It also admits that Mr. Ging, its sole investigator after June 2007, “has very little memory of what actions he undertook in this investigation conducted over seven years ago”. EEOC’s Brief [362], p. 13.
Sterling alleges that “[t]here is no evidence produced by EEOC in this litigation suggesting that Investigators Carlo, Melendez, Rawlins, or Thompson [EEOC’s four other investigators] conducted any sort of nationwide investigation of Sterling, based on their involvement prior to the transfer of all Charges to Ging”. Sterling’s Statement of Facts [338], ¶52. In response, the EEOC “objects to the lack of evidentiary support for this ‘fact,’ and denies
-8-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 9 of 20
in the form and manner alleged. Nearly all the charges filed stated that they were filed on behalf of the charging party and all women similarly-situated at Sterling Jewelers stores”. EEOC’s Second Amended Statement of Facts [378], ¶52 (citing 12 of the charges asserted by the Charging Parties).
That response is insufficient to controvert Sterling’s assertion, because the fact that charges were asserted does not by itself prove that they were then investigated, nor does it prove the scope of any investigation which may have occurred. In opposing the motion, the EEOC “may not rely on conclusory allegations . . . . At the summary judgment stage, a nonmoving party must offer some hard evidence”. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005).
Sterling further alleges that Mr. Ging did not recall investigating any stores besides those in Massena, New York and Tampa, Florida. Sterling’s Statement of Facts [338], ¶54 (citing Mr. Ging’s deposition testimony). Responding to that assertion, the EEOC “denies in the form and manner alleged. Whatever Mr. Ging recalled or did not recall on the date of his deposition, he conducted a nationwide investigation of the charges against Sterling, which nearly universally stated that they were filed on behalf of all women similarly-situated to the Charging Parties, and he received information from Charging Parties’ attorneys to support the nationwide scope of the allegations against Sterling.” EEOC’s Second Amended Statement of Facts [378], ¶54.
In support of its position, the EEOC cites Mr. Ging’s deposition testimony that he “investigated all of these charges as class charges” ([358-7], p. 171). However, the EEOC may not “trade on the inherent ambiguity in the term ‘class’ to [its] own advantage”. CRST, 2009 WL
-9-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 10 of 20
2524402 *18 (N.D.Iowa 2009), aff’d, 679 F.3d 657 (8th Cir. 2012). Mr. Ging did not specify which type of class he investigated - i.e., local, regional, or nationwide. See E.E.O.C. v. Outback Steak House of Fla., Inc. 520 F.Supp.2d 1250, 1267 (D.Colo. 2007) (noting that “class” can also mean a local or regional class instead of a nationwide class). Therefore, his statement that he investigated “class” charges constitutes no evidence that he investigated a nationwide class.
The EEOC also cites the November 30, 2007 letter from counsel for the Charging Parties, but, as previously noted, Mr. Ging could not recall whether he reviewed that letter. Finally, the EEOC cites the charges asserted by the Charging Parties, which does not prove that those charges were investigated. For these reasons, I adopt Sterling’s assertions (Sterling’s Statement of Facts [338], ¶¶52, 54) that none of the EEOC investigators conducted a nationwide investigation.
Although the EEOC claims that “Sterling stonewalled the EEOC at every turn” in its attempt to obtain Sterling’s nationwide pay and promotion data ([376], p. 10), as previously noted (footnote 2, supra) the parties had agreed that Sterling was under no obligation to provide additional information in connection with the EEOC administrative investigation. [365-13], ¶8. But for that agreement, the EEOC could have subpoenaed the information from Sterling,3 but did not do so because it “subsequently received the detailed analysis and tables from Dr. Lanier. So EEOC did not follow through on this”. [376], p. 42.

3

“The EEOC has express statutory authority to issue subpoenas requiring the attendance

and testimony of witnesses or the production of any evidence during its investigations.” E.E.O.C. v.

Deer Valley Unified School District, 968 F.2d 904, 906 (9th Cir. 1992) (citing 42 U.S.C. §2000e–9, 29

U.S.C. §161(1)).

-10-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 11 of 20
The EEOC now points to Dr. Lanier’s analysis as “the key document” proving that it conducted a nationwide investigation ([376], p. 36), stating that:
# “EEOC obtained statistical analysis finding company-wide sex-based disparities in compensation and promotions from the Charging Parties’ expert” (EEOC’s Letter Brief [382], p. 2);
# “[M]ost assuredly the analyses were reviewed and, obviously, that’s what’s being referenced in the [letter of] determination” ([376], p. 7);
# “It absolutely was part of the EEOC investigation and it was expressly referenced in the EEOC Letter of Determination . . . . We will fully admit that EEOC did not conduct its own separate statistical analyses. So that what was being referred to, obviously, is the statistical analyses . . . the Lanier table” (id., pp. 14-15);
# “Obviously, it was in the file for a reason. Obviously, it was referenced in the Letter of Determination. So it was not just a piece of paper or a series of analyses that were just sitting in EEOC’s file with no one ever looking at it” (id., p. 26);
# “the fact that EEOC credited the evidence presented by charging parties in its Letter of Determination is totally legitimate, it’s something that happens all the time” (id., p. 36);
# “there was nothing improper whatsoever about EEOC obtaining and then relying on information and analyses from an ‘interested’ third party such as Dr. Lanier” (EEOC’s Brief [362], p. 10).
-11-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 12 of 20
I find it more than a little ironic for the EEOC to accuse Sterling of stonewalling, for when Sterling inquired into these very same areas during discovery, the EEOC blocked its inquiries:
# when Sterling asked EEOC’s Rule 30(b)(6) witness (Jennifer Carlo) “what is the statistical analysis of pay and promotion data that’s referenced” in the Letter of Determination, the EEOC directed her not to answer ([339-25], p. 228);
# when Sterling asked Ms. Carlo whether the reference was to Dr. Lanier, the EEOC directed her not to answer (id., pp. 228-29);
# when Sterling asked Mr. Ging “what statistical analysis is being referenced” in the Letter of Determination, the EEOC directed him not to answer, asserting deliberative privilege ([339-24], p. 230);4
# when Sterling asked Ms. Carlo “who reviewed the statistical tables from Dr. Lanier”, the EEOC again directed her not to answer, claiming that question “calls for deliberative information” ([339-25], p. 190);
# when Sterling asked Ms. Carlo whether the EEOC “under[took] any validation of Dr. Lanier’s work”, and whether it “accepted Dr. Lanier’s tables or . . . independently verified” them, the EEOC directed her not to answer, claiming that question “calls for deliberations” (id., pp. 184-85);

4

Moreover, Ging did not recall reviewing Dr. Lanier’s tables or the November 30, 2007

submission from the claimants’ attorneys ([339-24], pp. 186, 188).

-12-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 13 of 20

# when Sterling asked Mr. Ging whether he performed “any fact investigation at all concerning Dr. Lanier’s tables”, or took “any steps to verify the accuracy of the information in Dr. Lanier’s table”, the EEOC directed him not to answer, asserting deliberative privilege ([339-24], pp. 197, 200); and
# when Sterling asked Mr. Ging if he knew which witness testimony allegedly corroborated the allegations of nationwide sex discrimination contained in the Letter of Determination, the EEOC directed him not to answer, asserting deliberative privilege (id., p. 231).5
Once Sterling filed its Answer [8] denying that the EEOC had conducted a nationwide investigation of its employment practices, the EEOC knew that it would bear the burden of proving compliance with this condition precedent. It also knew that an assertion of privilege (whether properly or not)6 during discovery might affect its ability to satisfy that burden, since “the claim of privilege is not a substitute for relevant evidence”. United States v. Rylander, 460 U.S. 752, 761 (1983). “[A] litigant claiming . . . privilege is not freed from adducing proof in support of a burden which would otherwise have been his.” United States v.

5

While the EEOC subsequently offered to allow Mr. Ging to answer certain questions in

writing in lieu of an oral deposition, this proposal was unacceptable to Sterling ([327], p. 4), and with

good reason. See Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 549 (S.D.N.Y. 1989) (“there are

several reasons why oral depositions should not be routinely replaced by written questions . . . . First, the

interrogatory format does not permit the probing follow-up questions necessary in all but the simplest

litigation. Second, without oral deposition, counsel are unable to observe the demeanor of the witness

and evaluate his credibility in anticipation of trial . . . . Finally, written questions provide an opportunity

for counsel to assist the witness in providing answers so carefully tailored that they are likely to generate

additional discovery disputes”).

6

Without deciding the issue, I noted that “some of the objections . . . I don’t think should

have been asserted”. [327], p. 21. However, the propriety of the objections is not the issue here - rather,

the question is whether the EEOC can now rely upon information which it previously withheld as

privileged.

-13-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 14 of 20

Certain Real Property and Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 83 (2d Cir. 1995). “In other words, a party who asserts the privilege . . . must bear the consequence of lack of evidence . . . and the claim of privilege will not prevent an adverse finding or even summary judgment if the litigant does not present sufficient evidence to satisfy the usual evidentiary burdens in the litigation.” Id.7
None of this should come as a surprise to the EEOC. On August 15, 2012, I cautioned that the EEOC “can’t assert the privilege and then waive the privilege when the charges are attacked” ([295], p. 13). On June 26, 2013, I again warned that the EEOC “can’t use a privilege as both a sword and a shield . So if they’re saying they’re not going to disclose this information to [Sterling], then they’re also not going to be allowed to disclose it to the Court to argue that the scope was broader than what [Sterling is] saying it is” ([327], p. 16).8 Therefore, the EEOC may not now oppose Sterling’s motion for summary judgment by relying upon the information which it withheld from Sterling in discovery.
Accordingly, I must decide whether the information which the EEOC has not withheld from Sterling in discovery is sufficient to prove that it conducted a nationwide

7

See also S.E.C. v. Pittsford Capital Income Partners, L.L.C. 2007 WL 2455124, *14

(W.D.N.Y. 2007) (Telesca, J.), aff’d in part, app. dismissed in part, 2008 WL 5435580 (2d Cir. 2008)

(Summary Order) (“when a party invokes [a] privilege . . . courts may then preclude that party from

introducing evidence that was not previously available to his or her adversary due to the party’s

invocation of the privilege”); Hammond v. Hendrickson, 1990 WL 179893, *2 (N.D.Ill. 1990) (“Such

evidence was never obtained by virtue of Kidder’s invocation of the privilege during discovery.

Accordingly such evidence shall now be barred”).

8

“It is well established in this Circuit that a party may not use . . . privilege as both a

sword and a shield.” Favors v. Cuomo, 285 F.R.D. 187, 198 (E.D.N.Y. 2012). “In other words, a party

cannot . . . affirmatively rely on privileged communications to support its claim . . . and then shield the

underlying communications from scrutiny by the opposing party.” In re Grand Jury Proceedings, 219

F.3d 175, 182 (2d Cir. 2000).

-14-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 15 of 20

investigation prior to commencing this action. In arguing that this question is not judicially reviewable, the EEOC notes that “42 U.S.C. §2000e-5(b) . . . simply provides that EEOC ‘shall make an investigation’ of a discrimination charge, without . . . any statutory guide on the substance of such investigation, which is committed to the agency’s discretion. Like the subsection’s conciliation provision, such an open-ended provision looks nothing like a judicially reviewable prerequisite to suit.” EEOC’s Letter Brief [382], pp. 1-2.9
I disagree. Although the statute does not define “investigation”, “[w]hen a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning . . . . [T]he word ‘investigation’ connotes a ‘thorough’ or ‘searching inquiry’”. In re WorldCom, Inc. Securities Litigation, 346 F.Supp.2d 628, 678 (S.D.N.Y. 2004). “Dictionary definitions of the word investigate include: ‘[t]o inquire into (a matter) systematically’ . . .‘to observe or study by close examination and systematic inquiry’ . . . ‘to examine a crime, problem, statement, etc. carefully, especially to discover the truth’.” MCI LLC v. Rutgers Casualty Insurance Co., 2007 WL 4258190, *6 (S.D.N.Y. 2007).
The EEOC’s “duty to investigate is both mandatory and unqualified”. Martini v. Federal National Mortgage Association, 178 F.3d 1336, 1346 (D.C. Cir.1999), cert. dismissed, 528 U.S. 1147 (2000). The investigation must be “genuine”, Equal Employment Opportunity Commission v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982), meaning that the EEOC

9

In support of this argument, the EEOC cites E.E.O.C. v. Mach Mining, LLC,

___F.3d___, 2013 WL 6698515 (7th Cir. 2013), holding that “an alleged failure to conciliate is not an

affirmative defense to the merits of a discrimination suit.” Id., *1. However, the issue here is failure to

investigate, not failure to conciliate - and in any event, Mach Mining recognizes that unlike the Seventh

Circuit, the Second Circuit does recognize the defense of failure to conciliate. Id., *11 (citing EEOC v.

Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d Cir.1996)).

-15-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 16 of 20
“cannot defer to the opinions of [the parties]; it has the statutory duty to make an independent investigation, reasonable in scope, to determine for itself” whether the charge has a factual basis. E.E.O.C. v. Michael Construction Co., 706 F.2d 244, 252-53 (8th Cir. 1983), cert. denied, 464 U.S. 1038 (1984) (emphasis added). The mere gathering of information from others does not constitute an “investigation”, Groves v. Department of Corrections, 811 N.W.2d 563, 570 (Mich. App. 2011); nor does the parroting of that information without independent analysis. See MCI, 2007 WL 4258190, *7 (“the February 16, 2005 letter . . . does not evidence any independent inquiry of the claim. Instead, the Letter simply restates some of the allegations in the Pelcrete Complaint and Plaintiffs’ demand letter . . . . This does not constitute an ‘investigation’ of the claim”).
The EEOC alleges that its determination of nationwide discrimination “was based on the documents and information in the investigation files, including the statistical analysis of Sterling’s nationwide personnel and payroll data submitted by Charging Parties”. EEOC’s Second Amended Statement of Facts [378], ¶109. However, “[s]tatements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment”. Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008).
The only nationwide data specifically identified by the EEOC is Dr. Lanier’s September 4, 2007 statistical analysis [339-32], and, having invoked privilege in response to Sterling’s inquiries in discovery, the EEOC cannot now be allowed to argue that this was the
-16-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 17 of 20

analysis referred to in its Letter of Determination, or that it took any steps to verify the reliability of that analysis. Absent such proof, there is no evidence that its investigation was nationwide.10
While the EEOC accuses Sterling of “gamesmanship, diverting the Court’s attention from the merits of EEOC’s allegations and Sterling’s defenses thereto” (EEOC’s Letter Brief [382], p. 2), it ignores the fact that the absence of a nationwide pre-suit investigation is a defense to the EEOC’s nationwide pattern-or-practice claim. “Just as Congress has charged the EEOC with helping ensure that employers do not single out employees on account of certain characteristics, this Court is charged with ensuring that any actions brought before it by the EEOC are within the parameters of the law as set forth by Congress, regardless of how well-intentioned the EEOC’s purpose.” Bloomberg,*7. “Even the most recalcitrant employer who flouts Title VII’s prohibitions against unlawful employment discrimination . . . is due the process that Title VII mandates.” Id.,*10.
The EEOC has already had one opportunity to conduct a pre-suit investigation and to provide discovery as to the scope of that investigation. Once is enough. “In the litigation process, when certain moments have passed, district courts are not required to give parties a ‘do over’.” Harleysville Lake States Insurance Co. v. Granite Ridge Builders, Inc., 2009 WL 4843558, *2 (N.D.Ind. 2009). “[W]here, as here, the EEOC completely abdicates its role in the

10

Moreover, I question whether the EEOC could rely upon the Lanier analysis even if it

had not invoked privilege during discovery. While the parties agreed that the analysis could be placed in

the EEOC’s investigative file, they also agreed that it would not lose its mediation privilege - meaning

that it could not be relied upon in litigation. As the EEOC’s attorney admitted during oral argument,

“the mediation agreement may impact the EEOC’s ability . . . of using the Lanier analyses for the

purposes of this litigation . . . .What is not permitted is for us to say, Your Honor, for example, the

Lanier analyses . . . are going to be what EEOC relies on in this court to prove pattern or practice of

discrimination. That would be problematic under this agreement” ([376], p. 16). Given that admission,

why is it not equally problematic for the EEOC to refer to the Lanier analysis as evidence that it

conducted a nationwide investigation, which is a condition precedent to this litigation?

-17-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 18 of 20
administrative process, the appropriate remedy is to bar the EEOC from seeking relief . . . and dismiss the EEOC’s Complaint.” Bloomberg, *10. Therefore, I recommend that the EEOC’s claim of a nationwide pattern or practice of employment discrimination by Sterling be dismissed, with prejudice.
C. Should the EEOC’s Statement of Facts be Stricken? Sterling also moves to strike portions of the EEOC’s Statement of Facts [362-1]
submitted in opposition to its motion for summary judgment, arguing that it “it contains statement[s] that rely on an admissible evidence not in the record, as well as legal argument and generalized conclusory statements” [370]. In response to that motion, the EEOC has submitted an Amended- and Second Amended Statement of Facts [373, 378].
Having already addressed several deficiencies of in the EEOC’s factual response to Sterling’s summary judgment motion, I do not see the need to address the motion to strike in greater detail at this time. Therefore, in light of my recommendation to dismiss the EEOC’s claim of nationwide discrimination by Sterling, the motion to strike is denied, without prejudice to renewal in the event that my recommendation is not adopted by District Judge Arcara.
D. Should I Reconsider the Applicability of the Statute of Limitations? Sterling also asks me to reconsider my Amended Report and Recommendation
[60], subsequently adopted by Judge Arcara [67], dealing with the applicable Statute of Limitations on the EEOC’s pattern or practice claim. Sterling’s Memorandum of Law [337], Point III. Sterling argues that “since this ruling, there has emerged a uniform body of case law
-18-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 19 of 20

holding that the 300-day limitations period set forth in §706 limits claims under §707. Indeed, since this Court’s January 2010 ruling, every court to have considered the matter has held that the 300-day charge-filing period applies to cases brought under §707 (id., p. 20). While that may be true, none of those decisions are from the Supreme Court or circuit courts of appeal.
“Under the law of the case doctrine, [a] court adheres to its own decision at an earlier stage of the litigation unless there are cogent or compelling reasons not to, such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Sanders v. Sullivan, 900 F.2d 601, 605 (2d Cir. 1990). In my view, none of those reasons are present here. Therefore, to the extent necessary,11 I recommend that Sterling’s request for reconsideration be denied.

CONCLUSION For these reasons, Sterling’s motion to strike [370] is denied, without prejudice, and I recommend that its motion for partial summary judgment [336] be granted in part and denied in part. Unless otherwise ordered by Judge Arcara, any objections to this Report, Recommendation and Order must be filed with the clerk of this court by January 21, 2014 (applying the time frames set forth in Fed. R. Civ. P. (“Rules”) 6(a)(1)(C), 6(d), and 72(b)(2)). Any requests for extension of this deadline must be made to Judge Arcara. A party who “fails to object timely . . . waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).

11

Since the only pattern or practice claim alleged by the EEOC is a nationwide pattern or

practice claim, this request may be moot if my recommendation to dismiss that claim is adopted.

-19-

Case 1:08-cv-00706-RJA-JJM Document 383 Filed 01/02/14 Page 20 of 20
Moreover, the district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local Rules of Civil Procedure, written objections shall “specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection . . . supported by legal authority”, and must include “a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply with these provisions may result in the district judge’s refusal to consider the objections. Dated: January 2, 2014
/s/ Jeremiah J. McCarthy JEREMIAH J. MCCARTHY United States Magistrate Judge
-20-

 
 Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 1 of 35

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
-against-
STERLING JEWELERS INC.,
Defendant.
---------------------------------------------------------------)(

No. 08-CV-0706-RJA-MJR

CONSENT DECREE I. INTRODUCTION
This action was filed on September 23, 2008 by Plaintiff United States Equal Employment Opportunity Commission ("EEOC"), an agency of the United States Government, alleging that Defendant Sterling Jewelers Inc. ("Sterling" or "Defendant") violated Title VII of the Civil Rights Act of 1964 ("Title VII") by engaging in a pattern or practice of discriminating against female retail sales employees with respect to pay and promotions (the "Litigation").
EEOC and Sterling (collectively, the "Parties") have agreed that this action should now be resolved by entry of this Consent Decree ("Decree"), and therefore do hereby stipulate and consent to the entry ofthis Decree as final and binding on the parties, including Sterling's successors, assigns, subsidiaries, and any other entity with which Sterling may merge or consolidate after the date of this Decree. As a result, the Parties have agreed to enter into this Decree to avoid the costs and uncertainties offurther litigation.

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 2 of 35
II. PURPOSES OF THE CONSENT DECREE The Parties have entered into this Decree for the following purposes: A. To resolve all disputes in the Litigation in such a way as to avoid further
expensive and protracted litigation; B. To ensure equal employment opportunity for women working within stores
operated by Sterling; C. To provide for compensation, promotion and personnel systems designed to
ensure that women continue to be compensated fairly and considered for promotions, job assignments, and transfers for which they are interested and qualified;
D. To facilitate an expedited and efficient procedure for implementing equitable relief pursuant to the terms of this Decree; and
E. To provide finality to the resolution of all claims and defenses asserted in the Litigation. III. LITIGATION BACKGROUND
On September 23, 2008, the EEOC filed a lawsuit captioned Equal Employment Opportunity Commission v. Sterling Jewelers Inc., Case No. 08-CV-0706, in the United States District Court for the Western District of New York, alleging that since at least January I, 2003, Sterling has been paying certain of its female retail sales employees less than male employees performing substantially equal work and denying certain female employees promotional opportunities for which they are qualified (the "Litigation"). In the Litigation, the EEOC alleges that Sterling's pay and promotion policies violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
2

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 3 of 35

Sterling has denied all allegations of discrimination and wrongdoing of any kind against

it in the Litigation. Sterling contends, among other things, that it has complied at all times with

the law, and Sterling admits no liability in the Litigation. Nothing in this Decree, nor the fact of

the Decree itself, shall be construed or deemed to be an admission by any party about the merits,

validity, or accuracy of any of the allegations, claims, or defenses of any party. No findings of liability or wrongdoing as to Sterling have been found in the Litigation. The Parties have agreed

to resolve all claims associated with the Litigation pursuant to the terms and conditions of this

Decree in order to avoid the cost and expense of continued litigation.

IV. JURISDICTION AND VENUE

A. This Court has jurisdiction over the Parties and subject matter of this Litigation.

Venue is proper in this District. This Court has jurisdiction to implement and enforce this

Decree.

B. The Court will retain jurisdiction over this Litigation for the duration ofthe

Decree for the purposes of entering of all orders, judgments and decrees that may be necessary to

implement the relief provided in this Decree.

C. A material breach of any term of this Decree by Sterling or the EEOC will be

subject to Section XVII of the Decree, Dispute Resolution And Procedures For Enforcement Or

Relief. D.

The Parties will not contest the validity of this Decree or the jurisdiction of the

Court to enforce this Decree and its terms.

V. TERM OF THE DECREE A. All provisions of this Decree are effective immediately upon the date of entry of

the Decree by the Court ("Effective Date"), and all provisions ofthis Decree will remain in

3

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 4 of 35
effect from the Effective Date for a period of three (3) years and three (3) months following that date (the "Term").
B. If, at the end of the Term, any material dispute about implementation of or compliance with the Decree remains unresolved, the term of the Decree may be extended by Court order upon an appropriate showing of the need to extend the Decree to resolve any material dispute (and the Court will retain jurisdiction of this matter solely for the purpose to enforce the Decree) until such time as all such disputes have been resolved.
C. During the Term, this Litigation will be administratively closed but will not be dismissed.
D. The Decree will expire by its own terms at the end of the Term, without further action by the Parties or the Court, unless the term of this Decree has been extended pursuant to this Section or by other order of the Court. VI. RESOLUTION OF CLAIMS
A. The Decree shall resolve all claims of any kind that have been brought by the EEOC regarding any alleged discrimination relative to Sterling's pay and promotion policies and practices with respect to female employees of Sterling who worked in Sterling retail store operations, including the positions of Sales Associate, Jared Jewelry Consultant, Mall Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Manager, or Jared General Manager, or their equivalent ("Female Retail Sales Employees") from January 1, 2003 through the Effective Date of this Decree.
B. This Decree is final and binding on the Parties and resolves all claims brought by the EEOC on behalf of all Female Retail Sales Employees in the Litigation.
4

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 5 of 35
C. This Decree does not resolve any unrelated charge of discrimination pending before the EEOC or any charge that may be filed in the future.
D. This Decree does not resolve any claims pending in the arbitration Jock et al. v. Sterling Jewelers, Inc., AAA Case No. 11-116000655-08 before the American Arbitration Association.
E. Nothing in this Decree precludes Sterling from offering this Decree as evidence in any forum.
VII. MODIFICATION AND SEVERABILITY OF THE DECREE
A. The Parties may jointly agree to propose any modification to this Decree to the Court. Any such modification must be in writing, agreed to by the Parties, and ordered by the Court.
B. Whenever possible, each provision of this Decree will be interpreted in such a manner as to be valid and enforceable; provided, however, that in the event that, subsequent to the Court's entry of the Decree, any provision of this Decree should be determined to be or rendered unenforceable on collateral review, all other provisions and terms ofthis Decree and the application thereof to all persons and circumstances subject thereto will remain unaffected to the extent permitted by law.
C. If any application of any provisions or term of this Decree to any specific person or circumstance should be determined to be invalid or unenforceable, the application of such provision or term to other persons or circumstances will remain unaffected to the extent permitted by law.
5

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 6 of 35
VIII. GENERAL INJUNCTIVE PROVISIONS A. Sterling is hereby enjoined from enacting, maintaining or implementing any
policy or procedure or engaging in any compensation or promotion practice or conduct that violates Title VII of the Civil Rights Act of 1964 and similar federal laws prohibiting unlawful discrimination against women on the basis of sex.
B. Sterling is hereby enjoined from enacting, maintaining or implementing any policy or procedure or engaging in any practice or conduct that retaliates or has the purpose of retaliating against any future, current or former Female Retail Sales Employees because she opposed alleged discrimination on the basis of sex; filed a charge of discrimination on the basis of sex; testified, furnished information or participated in any manner in any investigation, proceeding, or hearing in connection with any charge or complaint of discrimination on the basis of sex; testified, furnished information or participated in any manner in connection with the monitoring or implementation of this Decree; or sought and/or received any nonmonetary relief pursuant to this Decree. IX. RETENTION OF MANAGEMENT DISCRETION
The EEOC specifically acknowledges and agrees that unless otherwise provided by the Decree and/or applicable law, Sterling retains its management discretion to modify, change and enhance any of its existing human resource functions, terms and conditions of employment, programs, procedures, practices or policies or otherwise adopting new human resources functions, terms and conditions of employment, programs, procedures, practices or policies as Sterling may deem appropriate. Further, Sterling shall maintain compensation and promotion systems as required by this Decree and in accordance with applicable law, and retains its management discretion to promote and compensate any of its employees or applicants consistent
6

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 7 of 35

with this Decree and applicable law. Subject to the requirements of this Decree and applicable

law, Sterling retains all management rights necessary to operate its business and to select,

supervise, and compensate its workforce. X. APPOINTMENT OF AN EMPLOYMENT PRACTICES EXPERT
Within thirty (30) days ofthe Effective Date ofthe Decree, Sterling will retain Dr. Nancy

Tippins, an expert in Industrial-Organizational Psychology to function as an independent Employment Practices Expert who will perform the functions set forth in this Section.

A. Duties Of The Employment Practices Expert Within one hundred twenty days ( 120) days of her retention, but in no event later than

one hundred eighty (180) days of her retention, the Employment Practices Expert will:

1.

Work with Sterling to conduct job analyses to evaluate and recommend

changes, if any, regarding the knowledge, skills, abilities, and other competencies needed for the following retail sales position at Sterling: Sales Associate, Jared Jewelry Consultant, Mall Assistant Store Manager, Mall Store Manager, Jared

Assistant General Manager, Jared Department Manager, and Jared General

Manager;

2.

Work with Sterling to evaluate and recommend changes, if any, regarding

the essential valid criteria for promotion to the following retail sales position at

Sterling: Mall Assistant Store Manager, Mall Store Manager, Jared Assistant

General Manager, Jared Department Manager, and Jared General Manager.

3. Work with Sterling to evaluate and recommend changes, if any, to the

factors, procedures and systems used to set starting pay and merit pay for the

positions of Sales Associate, Jared Jewelry Consultant, Mall Assistant Store

7

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 8 of 35

Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Manager, or Jared General Manager, or their equivalent, with the goal

of ensuring that such factors and procedures reflect the knowledge, skills,

abilities, and other competencies that Sterling determines are needed for each position and that are otherwise job-related and non-discriminatory under Title

VII;

4.

Work with Sterling to evaluate and recommend changes, if any, to

Sterling's policies, practices, procedures or tools, including the Wage Rate

Generator in its current or future form ("Starting Wage Tool"), for setting starting

wages, with the goal of ensuring that the factors used in connection with setting

starting pay are non-discriminatory, job-related and consistent with business

necessity, that managers use Sterling's policies, practices, procedures and Starting

Wage Tool for setting starting pay consistently across the retail sales workforce,

and that managers are held accountable for correctly and properly following

Sterling's policies, practices, procedures and Starting Wage Tool for setting

starting pay;

5. Work with Sterling to evaluate and recommend changes, if any, to procedures that will enable Sterling to monitor the compensation of Sales

Associates and Jared Jewelry Consultants, or their equivalent. 6. Work with Sterling to identify any disparities in the compensation of female and male Retail Sales employees, and work with Sterling to remedy such disparities that are caused by a practice or procedure that is not job-related or

8

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 9 of 35

consistent with business necessity, as determined by recognized standards for

scientific statistical analysis;

7.

Work with Sterling to evaluate and recommend changes, if any, to

Sterling's employee Field promotion programs covering the positions ofMall

Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager,

Jared Department Managers, and Jared General Manager, or their equivalent,

including any management training, with the goals of: (a) increasing the

participation of eligible, qualified women in such programs; (b) further

developing appropriate and job-related criteria for admission into such programs;

(c) providing participants in such programs with additional information regarding

what is required in order to obtain a management position; (d) enhancing the

effectiveness of such programs in training participants in the competencies needed

for management positions; (e) implementing an enhanced mentoring program to

encourage management and other advancement opportunities for eligible,

qualified women; (f) increasing and/or maintaining the number of qualified

women holding management positions in the Field (for the positions of Mall

Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager,

Jared Department Managers, and Jared General Manager, or their equivalent); and

(g) removing artificial barriers, if any, that may prevent eligible, qualified women

from applying to or accepting managerial positions.

8.

Work with Sterling to evaluate and recommend changes, if any, to

Sterling's promotion selection procedures that will ensure that categories of Field

management positions (for the positions of Mall Assistant Store Manager, Mall

9

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 10 of 35

Store Manager, Jared Assistant General Manager, Jared Department Managers, and Jared General Manager, or their equivalent) are made known to all store

employees, along with the minimum qualifications for such positions and the procedure by which interested employees may register their interest with Sterling

for consideration when Sterling fills vacancies in these positions; and

9.

Work with Sterling to evaluate and recommend changes, if any, to the

procedures used by Sterling's Human Resources department to investigate and

resolve complaints and reports from employees working in the Field (covering the

positions of Sales Associate, Jared Jewelry Consultant, Mall Assistant Store

Manager, Mall Store Manager, Jared Assistant General Manager, Jared

Department Managers, and Jared General Manager) of alleged discrimination or

retaliation.

B. Access To Information Consistent with the procedures set forth in Section XIII of the Decree, Sterling shall

provide the Employment Practices Expert with reasonable access to information, data, proprietary system data and reports, and Sterling personnel necessary to conduct job analyses and make recommendations through the Compliance Officer appointed by Sterling pursuant to

Section XIII ofthe Decree, and by no other means.

C. Written Reports By Employment Practices Expert

Within two hundred ten (21 0) days of her retention, and thereafter within two hundred forty (240) days of each anniversary of the Effective Date of this Decree (including once following the conclusion of the Decree Term), the Employment Practices Expert will prepare a written report summarizing the evaluations, recommendations, and new processes or process

10

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 11 of 35

enhancements that she has made or conducted pursuant to this Decree. The Employment Practices Expert will review the implementation of Sterling's programs, policies, and initiatives established by or impacted by this Decree and will include in her reports the results of this

review. D.

Distribution And Treatment Of Evaluations, Recommendations. And Reports

Whenever the Employment Practices Expert provides a written evaluation,

recommendation, or report to Sterling, Sterling will provide a copy thereof to the EEOC, with each page clearly labeled Confidential Information. All such evaluations, recommendations, and reports are Confidential Information pursuant to the Confidentiality Order entered in the Litigation, Docket No. 206. The EEOC shall strictly maintain the confidentiality of all such evaluations, recommendations, and reports to which it obtains access. Sterling will ensure that such evaluations, recommendations, or reports shall be communicated promptly to Sterling senior management officials with responsibility and authority over the matters that are the subject ofthe evaluations, recommendations, or reports. All recommendations ofthe Employment Practices Expert will be designed to advance the purposes of this Decree, consistent with Sterling's management rights and legitimate business needs and objectives.
Within sixty (60) days of receipt of the Employment Practices Expert's Report (the "Report"), Sterling will accept or reject each recommendation in the Report. If Sterling declines to accept any specific recommendation from the Employment Practices Expert, Sterling must demonstrate a legitimate business justification for declining the specific recommendation, and work with the Employment Practices Expert to provide a less burdensome alternative that would have no greater adverse impact on its Female Retail Sales Employees. Sterling shall confer with the Employment Practices Expert regarding each such recommendation and any less burdensome

11

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 12 of 35
alternative that will have no greater adverse impact on its Female Retail Sales Employees, and shall provide the Employment Practices Expert with access to documentation, information and data necessary for that purpose.
No later than sixty (60) days after Sterling's receipt of the Report, Sterling and the Employment Practices Expert shall report to the EEOC which recommendations have been accepted, which recommendations Sterling is rejecting in favor of alternatives approved by the Employment Practices Expert, and which recommendations Sterling is rejecting despite the lack of an alternative approved by the Employment Practices Expert. At the same time, Sterling shall report to the EEOC how it will implement specific recommendations of the Employment Practices Expert. If Sterling rejects any recommendation from the Employment Practices Expert, it must demonstrate a legitimate business justification for rejecting the recommendation and provide a less burdensome alternative that would have no greater adverse impact on its Female Retail Sales Employees. Ifthe parties are in dispute regarding a specific recommendation of the Employment Practices Expert, the Parties will confer in an effort to resolve the dispute, and Sterling shall provide the EEOC with access to documentation, information, and data necessary for that purpose. If the Parties are unable to reach resolution after meeting and conferring, either party may appeal to Hunter Hughes (or his replacement), who shall determine whether Sterling has satisfied its obligations under this paragraph. Any party that disagrees with Hunter Hughes' (or his replacement's) decision may appeal it to the District Court which shall review such determination under an abuse of discretion standard.
E. Compensation Of Employment Practices Expert Sterling will compensate the Employment Practices Expert and bear any costs reasonably necessary to the performance ofthe Employment Practices Expert's duties under this Decree,
12

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 13 of 35
including any necessary investments in technology that facilitate accurate recordkeeping of Sterling's employment practices. Subject to signing an appropriate confidentiality agreement, and upon reasonable advance request of the Compliance Officer provided for under the Decree, the Employment Practices Expert will be provided reasonable access to all relevant documents, systems, data, and Sterling employees necessary to complete the work described under this Decree.
If it becomes necessary to replace the Employment Practices Expert during the Term of this Decree due to death or disability, or other reasons, the parties will select a replacement by mutual agreement. If the parties cannot agree on a replacement, Hunter Hughes (or his replacement) will facilitate the selection of a replacement from submissions presented by the parties. XI. EQUAL EMPLOYMENT PROCEDURES FOR COMPENSATION
A. Job Descriptions For Retail Sales Positions Working with Sterling the Employment Practices Expert will evaluate and recommend changes, if any, to Sterling's written job description for the following retail sales position: Sales Associate, Jared Jewelry Consultant, Mall Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Managers, and Jared General Manager, based upon the Expert's job analyses. The Employment Practices Expert will identify the knowledge, skills, abilities, and other competencies and recommendation of selection criteria for the position in question, and specifically evaluate and recommend changes, if any, to Sterling's job descriptions for each ofthe following:
1. The knowledge, skills, abilities, and other competencies required to perform the position's duties successfully;
13

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 14 of 35

2.

The minimum qualifications for the position, which will be job-related and

consistent with business necessity; and 3. The selection criteria for promotions to the positions of Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Manager, or Jared General Manager or their equivalent, which will be

job-related and consistent with business necessity.

B. Analyses Regarding Compensation As part of her reports, the Employment Practices Expert will evaluate and recommend changes, if any, to Sterling's criteria for setting and adjusting starting rate of pay and merit pay for the positions of Sales Associate, Jared Jewelry Consultant, Mall Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Manager, or Jared General Manager, or their equivalent. The Employment Practices Expert will conduct a statistical analysis using scientifically recognized statistical techniques of the starting rate of pay and merit pay paid to employees in the positions of Sales Associate, Jared Jewelry Consultant, Mall Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Manager, or Jared General Manager, or their equivalent, within each district, or a subset thereof, of Sterling's Field operations in the United States during the six months preceding the analysis to identify disparities in the compensation of female and male Retail Sales Employees caused by a practice or procedure that is not job-related or consistent with business

necessity.

14

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 15 of 35
XII. EQUAL EMPLOYMENT PROCEDURES FOR PROMOTIONS A. Registry Of Interest Sterling will maintain through its newly implemented human capital management system,
Workday, a registry of interest in promotions in Field retail sales management positions ("Registry"), in its current or future format, as an online portal for retail sales employees to express interest in promotion to various retail sales management positions subject to this Decree.
B. Registry Positions The Registry may be used by all retail sales employees to express interest in the following retail sales management positions subject to this Decree: Mall Assistant Store Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Manager, or Jared General Manager, or their equivalent (collectively, "Registry Positions"). Employees who have not expressed an interest in these positions through the Registry will not be considered for promotion to Registry Positions. C. Regionality The Registry will be configured to provide all retail sales employees a mechanism for registering interest in Registry Positions for which Sterling has or in the future may have vacancies within a limited geographic area, to be determined by Sterling in its sole discretion. D. Registry Website The Registry will be available to all Sterling retail sales employees through a website that is accessible through any internet connection, so that employees may access the Registry by using a private computer and internet connection not owned or controlled by Sterling, such as an employee's home computer or mobile device.
15

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 16 of 35

E. In-Store Website Accessibility

Each retail sales employee, with the permission of the employee's supervisor or store

manager, may use an in-store computer to access to the Registry, and such permission will not be

withheld unreasonably.

F. Employee Application

The Registry will include a statement of the procedure for applying for vacancies in

Registry Positions.

G. E-mail Communication From The Registry

The Registry will provide an e-mail confirmation to each retail sales employee who

registers his or her interest through the Registry.

H. Registry Statement

Within thirty (30) days of the entry of this Decree, the following content will appear on

the Registry website: "Sterling maintains this online registry system to encourage all interested

employees to apply for careers in the management positions listed in this registry, and to ensure

equal opportunities for advancement to all Sterling employees. We pa1iicularly encourage

women and minorities who are interested in management opportunities at Sterling to participate

in this program and use this online registry system to express your interest in a management

position. Registration in this online system does not guarantee a promotion, but is necessary for

consideration for any promotional opportunity to a management position listed in this registry."

I.

Technological Advancements And Retention Of Management Discretion

Sterling at all times shall retain managerial discretion to consider, evaluate, and

implement emerging technological advances to increase efficiencies in maintaining the registry

of interest called for under this Decree. Nothing in this Decree shall be construed to limit

16

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 17 of 35

Sterling's exercise of management discretion to implement new technologies that fulfill the same

functions identified in this Decree.

J.

Exclusive Source Of Applicants For Promotions

Sterling will not C()nsider or select any current Sterling employee for a retail sales

management vacancy unless the employee has submitted a timely application for the vacancy

using its online Registry.

K. Structured Interviews

The Employment Practices Expert will evaluate and recommend any changes to

Sterling's field behavioral interviews and materials to enhance their structure and scoring.

L. Employee Career Services

Sterling will establish and maintain a function addressing career services for retail sales

employees, administered by Sterling's Human Resources function. This function will provide, at

a minimum, a means for all current field employees to obtain career development advice. Such advice will be designed to assist all field employees in identifying positions for which they are or

could eventually be qualified, necessary or helpful steps such employees may take to enhance

their chances of selection for such positions, and information about Sterling's Registry.

XIII. COMPLIANCE OFFICER

Within thirty (30) days of the entry of this Decree, Sterling will appoint a Compliance

Officer at the level of Vice President or above in Sterling's Compliance function, who will be

charged with overseeing Sterling's implementation of and compliance with this Decree, and who

will have demonstrable experience in areas relating to human resources, compliance with

employment laws, or other fields related to the subject matters of this Decree. Sterling will

provide the EEOC with the identity and qualifications of its proposed candidate, to the extent

17

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 18 of 35
practicable, prior to the appointment of the Compliance Officer. The EEOC shall confirm its consent to the appointment of the candidate, which consent will not unreasonably be withheld. In the event the EEOC objects to the candidate, the Parties shall meet and confer in an effort to resolve the EEOC's objection. Should the objection not be resolved, the Parties will follow the Dispute Resolution Procedure set forth in Section XVII. The Compliance Officer's duties will include, but not be limited to, the following:
A. Reviewing on a monthly basis all complaints and reports by Female Retail Sales Employees of sex discrimination or retaliation and the steps taken by Sterling to investigate and resolve such complaints and reports;
B. Reviewing female participation in Sterling's management training programs, including information from Sterling on the number and gender of candidates selected for such programs;
C. Reviewing all employee participation in Sterling's Registry, including the number and gender of participants; data about the positions filled through the program; information about any manager positions that Sterling failed to fill utilizing the Registry and any candidates selected for a management position who were not registered in the Registry, including the reason such positions were filled or such candidates were selected outside the Registry;
D. Reviewing the use of the Starting Wage Tool, including whether managers are properly following protocol for the use the Tool and whether they are properly categorizing applicants' prior experience;
E. Reviewing Sterling's compliance with the recommendations of the Employment Practices Expert;
18

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 19 of 35

F. Compiling a report six months after the effective date of this Decree and every six

months thereafter as well as forty-five (45) days after the end of the Decree term summarizing

the complaints and reports by Female Retail Sales Employees of sex discrimination and

retaliation, and the resolutions ofthose complaints and reports, which will be provided to

Sterling and the EEOC. Sterling will clearly label each page of the report Confidential

Information. All such reports are Confidential Information pursuant to the Confidentiality Order

entered in the Litigation, Docket No. 206. The EEOC shall strictly maintain the confidentiality

of all such reports;

G. Reviewing annual training of management on EEO policies against discrimination

and retaliation to ensure that the training described in the Decree was implemented;

H. Providing a report to Sterling and the EEOC six months after the effective date of

this Decree and every six months thereafter as well as forty-five (45) days after the end of the

Decree Term regarding all items evaluated and recommendations made. Sterling will clearly

label each page of the report Confidential Information. All such reports are Confidential

Information pursuant to the Confidentiality Order entered in the Litigation, Docket No. 206. The

EEOC shall strictly maintain the confidentiality of all such reports;

I.

Maintaining records for the Decree Term; and

J.

Providing the EEOC timely access to relevant data, proprietary database reports,

documents and any other sources of information-such as data from the Starting Wage Tool, the

Registry, and any computerized records relevant to performance like sales and training data or

performance evaluations-that the EEOC in good faith deems necessary to ensure compliance

with the provisions ofthe Decree, including but not limited to ensuring that Sterling adopts the

19

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 20 of 35

recommendations of the Employment Practices Expert as set forth in Section X above; provided that counsel of Record for Sterling shall receive contemporaneous notification of such requests.

XIV. TRAINING

A. Training For the Compliance Officer

Within forty-five (45) days of the entry ofthis Decree, Sterling will provide the

Compliance Officer appointed pursuant to the Decree with no fewer than ten (1 0) hours of

training addressing, at a minimum, the following topics:

1. this Decree, its contents, requirements, and implementation;

2. federal laws prohibiting discrimination in employment, with a special emphasis on laws prohibiting discrimination on the basis of sex, including sexual

harassment and equal pay, and retaliation;

3.

statistical analysis concerning disparities in compensation and promotion;

4. EEO complaint investigations best practices and the Internal Complaint

Procedure required by the Decree;

5.

Sterling's starting pay, merit pay and promotion policies and procedures;

and

6.

generally accepted methods of monitoring and auditing compliance of an

EEO program.

At least four (4) hours ofthe training concerning topics 1 to 3 will be provided by Sterling's counsel of Record in this case, or other counsel approved by the EEOC, and any necessary adjuncts. Upon completion ofthe eight (8) hours oftraining, all non-privileged training

materials will be submitted to the EEOC.

20

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 21 of 35

In the event a new Compliance Officer is appointed during the Decree Term, Sterling will

provide the above-training to her or him in full within sixty (60) days of her or his appointment.

B. Training For Human Resources Staff And Employees In Management Positions

Within ninety (90) days of the entry of this Decree, and annually thereafter, Sterling will

provide all Human Resources staff and management employees (including Mall Assistant Store

Manager, Mall Store Manager, Jared Assistant General Manager, Jared Department Managers,

Jared General Manager, District Manager, and Vice President of Regional Operations, or their

equivalent) with no fewer than three (3) hours of in-person, online, video-conference, or

recorded video-conference training addressing, at a minimum, the following topics:

I.

Federal laws prohibiting discrimination in employment, with a special

emphasis on laws prohibiting discrimination on the basis of sex, including sexual

harassment and equal pay, and retaliation;

2.

Sterling's obligations under this Decree with respect to nondiscrimination

in compensation and promotions;

3.

Sterling's career services for retail sales employees, and how employees

may make use of them;

4.

Sterling's internal EEO policies and procedures, including the Internal

Complaint Procedure required by the Decree; 5. their obligation to use all good-faith efforts to implement this Decree;

6. the record-retention requirements of this Decree; and

7.

the role of Sterling, the Employment Practices Expert, the Compliance

Officer, the EEOC and the Court in monitoring Decree compliance.

21

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 22 of 35

Newly hired or promoted human resources staff and management employees will be given the training within forty- five (45) business days after commencing such a position with Sterling.
Forty-five (45) days prior to commencing this training, Sterling will give the EEOC the

training outline and materials for review and comment. Sterling is under no obligation to adopt the EEOC's comments with respect to Sterling's training outline and materials but will consider any reasonable recommendations made by the EEOC regarding the training, provided they are

made twenty-five (25) business days prior to the commencement of the training.

C. Training For Retail Sales Employees Within ninety (90) days of the entry of this Decree, Sterling will provide all retail sales employees no fewer than sixty (60) minutes ofin-person, online, video-conference, recorded video-conference, computer-based, or internet-based training addressing, at a minimum, the

following topics: 1. Federal laws prohibiting discrimination in employment, with a special emphasis on laws prohibiting discrimination on the basis of sex, including sexual

harassment and equal pay;

2.

Sterling's obligations under this Decree with respect to nondiscrimination

in compensation and promotions, including the function of Sterling's Registry;

3. Sterling's career services for retail sales employees and how employees

may make use of them; and 4. Sterling's internal EEO policies and procedures, including the procedure

for making internal complaints and inquiries.

Newly hired employees will be given the training within forty-five (45) business days after

commencing employment with Sterling.

22

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 23 of 35
Within forty-five (45) days of any material changes subsequently made to either Sterling's Registry and/or Sterling's internal EEO policies and procedures addressed by this Decree, Sterling will update its training, notify employees of the change(s), and provide all employees with the opportunity to receive the updated training. Sterling must make training materials that explain the programmatic relief implemented by this Decree available to employees upon request.
Forty-five (45) days prior to commencing the first training, Sterling will give the EEOC the training outline and materials for review and comment. Sterling is under no obligation to adopt the EEOC's comments with respect to Sterling's training outline and materials but will consider any reasonable recommendations made by the EEOC regarding the training, provided they are made twenty-five (25) business days prior to the commencement of the training.
D. Additional Training For Certain Human Resources Staff And Employees In Management Positions
Sterling will provide its Human Resources staff and management employees whose duties include investigating complaints of discrimination, harassment, or retaliation with the equivalent of no fewer than two (2) hours of additional in-person, online, video-conference, recorded video-conference, computer-based, or internet-based training concerning equal employment opportunity and EEO investigations, and the equivalent of not fewer than two (2) hours annually thereafter.
Forty-five (45) days prior to commencing the first training, Sterling will give the EEOC the training outline and materials for review and comment. Sterling is under no obligation to adopt the EEOC's comments with respect to Sterling's training outline and materials but will consider any reasonable recommendations made by the EEOC regarding the training, provided they are made twenty-five (25) business days prior to the commencement of the training.
23

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 24 of 35
E. Training Provider All of the training required by this Section will be initially developed by Seyfarth Shaw At Work or other EEOC-approved provider. F. Training Records Sterling will maintain attendance records identifYing in electronic form the name and job title of the attendees at each session and also a class roster containing the signature (or certified digital signature) of each attendee, as well as copies of all training materials presented. Upon request, Sterling will provide the EEOC a copy of the attendance records and the non-privileged training materials from any or all training sessions. XV. INTERNAL PROCEDURES FOR IMPLEMENTING EQUAL EMPLOYMENT PRACTICES A. Non-Discrimination Policy Within thirty (30) business days of the entry of this Decree, Sterling will provide to EEOC for its review and approval an updated antidiscrimination policy that prohibits discrimination on the basis of sex, and outlines Sterling's internal procedure for filing complaints and inquiries about discrimination and retaliation (the "Policy"). The Policy will expressly provide that employees are free to discuss their compensation with anyone, including other Sterling employees, and doing so will not subject them to discipline or any other adverse consequences. EEOC will have I 0 days to notify Sterling whether or not it approves such Policy. lfEEOC disapproves, Sterling will provide EEOC with a revised Policy within 10 days of notice of EEOC's disapproval. Within forty-five (45) business days of EEOC's notice of approval ofthe Policy, Sterling will post this Policy on its Intranet. Sterling will provide a copy of the Policy to all field retail sales employees hired after the entry of this Decree within forty-five (45) business days of the
24

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 25 of 35

start of their employment. Employees must provide written or electronic acknowledgement that

they have received a copy of this policy.

Within forty-five (45) business days of EEOC's notice of approval of the Policy, Sterling

will post a copy of the Policy in each store in a location that is commonly frequented by Sterling employees and typically used by Sterling for posting notices directed to employees. Sterling will

ensure that the Policy remains posted for the entire Term of this Decree.

B. Internal Complaint Procedure

I.

Within one hundred twenty (120) days ofthe entry ofthis Decree, the

Employment Practices Expert will evaluate and recommend any changes

regarding Sterling's internal complaint procedures that provide means for

employees to make complaints and reports of discrimination and retaliation, as

well as mechanisms for the prompt investigation thereof and provision of relief

where warranted (collectively, the "Internal Complaint Procedure").

2. The Internal Complaint Procedure will provide employees a means of

lodging complaints or reports in person, on paper, by email, or by telephone using

a toll-free number.

3.

The Internal Complaint Procedure may be implemented as a revision of

Sterling's existing RESOLVE Program, but it must expressly allow or continue to

allow an employee making an internal discrimination complaint:

a.

to file a charge of discrimination with the EEOC or with a state or

local fair employment practice regardless of whether or not she or he has

complained regarding the same conduct via the Internal Complaint

Procedure; and to participate in an investigation conducted by or suit

25

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 26 of 35

commenced by the EEOC or by a state or local fair employment practice

agency and to obtain injunctive and/or monetary relief in connection

therewith, regardless of whether or not she or he has complained via the

Internal Complaint Procedure regarding the same conduct; and

b. to complain of discrimination or to obtain relief in connection

therewith without imposing deadlines shorter than those allowable by law

that limit an employee's right to complain of discrimination or obtain

relief.

4.

In each region in which Sterling operates retail stores, Human Resources

staff should be available whether by telephone or in person for consultation and, if

necessary, receipt and investigation of sex discrimination complaints and reports.

Human Resources staff will implement controls designed to ensure that only

employees or managers with a need to know will be advised of such a complaint or investigation. If Human Resources determines it is necessary to inform any

employee or manager of the identity of the complainant, Human Resources will

notify the complainant in advance that her/his identity will be released and to whom it will be released. In all instances, upon being notified of a complaint or

investigation, the employees and managers involved will be reminded of

Sterling's policy against retaliation and a copy thereof will be made available to

them.

5. Sterling will provide copies of all complaints of sex discrimination, sex

bias, sex harassment, unequal pay and/or retaliation made by Female Retail Sales

Employees to the Compliance Officer, on a monthly basis.

26

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 27 of 35

6. The Compliance Officer will have oversight of Human Resources'

handling of sex discrimination complaints or reports from Female Retail Sales

Employees, and the Internal Complaint Procedure will expressly advise Female

Retail Sales Employees that if they are dissatisfied with the outcome of a

complaint or report, they may report their concerns to the Compliance Officer.

XVI. RECORD-KEEPING, REPORTING, AND MONITORING OF COMPLIANCE

A. Records To Be Retained For Entire Term Of Decree

Sterling will retain the following categories of records for no less than the entire Term of

this Decree:

1. All reports or other written communications to or from the Employment

Practices Expert;

2. Job descriptions for all retail sales positions subject to this Decree;

3. Materials created in connection with the evaluation and selection of

candidates for any retail sales manager position, including applications, interview

notes, and the like;

4.

Starting Wage Tool data for Sales Associate and Jared Jewelry Consultant

. positions, or their equivalent, including but not limited to all pay-setting inputs

and outputs for applicants and new hires;

5. Career registry data for the positions of Sales Associate, Jared Jewelry

Consultant, Mall Assistant Store Manager, Mall Store Manager, Jared Assistant

General Manager, Jared Department Manager, and Jared General Manager;

27

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 28 of 35

6. Applicant information for the positions of Sales Associate and Jared Jewelry Consultant, or their equivalent, including but not limited to electronic

records of such applications;

7.

Written statements of criteria for the determination or adjustment of

compensation for all Sales Associates and Jared Jewelry Consultants;

8. Training plans, materials, and attendance records called for under the

Decree; 9. Internal complaints, reports, or inquiries from Female Retail Sales Employees concerning sex discrimination or retaliation; 10. All performance appraisals of Store Managers, General Managers, District Managers and Vice Presidents for Regional Operations; 11. All user's guides, data dictionaries, and metadata related to all information technology systems used to administer any portion ofthis Decree; and 12. Any other document or record referenced in or created pursuant to this

Decree. B. Materials And Data To Be Provided To The EEOC Upon Request The EEOC may have access, upon reasonable request to Sterling's Compliance Officer, to any document or database that is created and/or retained pursuant to a provision of this Decree, including online access to Sterling's Registry and the data stored therein. All such information, documentation, and data are Confidential Information pursuant to the Confidentiality Order entered in the Litigation, Docket No. 206. The EEOC will strictly maintain the confidentiality of all information, documentation, and data to which it obtains

access.

28

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 29 of 35

C. Materials And Data To Be Provided To The EEOC Automatically

Sterling will provide the following to the EEOC without any request:

1. all written evaluations, recommendations, or reports from the Employment

Practices Expert, within thirty (30) business days of Sterling's receipt thereof;

2.

all job descriptions, job analyses, and validation reports prepared pursuant

to the Decree, within thirty (30) business days before they are finalized; and

3. all written criteria for setting and adjusting compensation prepared

pursuant to the Decree, within thirty (30) business days before they are finalized.

All such information, documentation, and data are Confidential Information pursuant to the

Confidentiality Order entered in the Litigation, Docket No. 206. The EEOC will strictly

maintain the confidentiality of all such information, documentation, and data .

D. Reporting

1. Initial Certifications

Within forty-five (45) days ofthe entry of this Decree, Sterling will send

the EEOC written certification that Sterling posted and distributed the Policy and

posted the Notice, as required by Sections XVI(A) and XIX.

2. Annual Report

Within forty-five (45) days of the anniversary of the effective date of this

Decree and within forty- five (45) days of the end of the Decree term, Sterling will

provide the EEOC with a report containing:

a.

A list of all complaints and reports of sex discrimination (including

sex harassment, unequal pay and retaliation) from (or on behalf of) any

Female Retail Sales Employee, whether formal or informal, written or

29

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 30 of 35

oral, made through the Internal Complaint Procedure, The RESOLVE program or any other mechanism. Such reports will identify with respect to each complaint or report: (i) the name of the individual who made the complaint or report; (ii) the date of the complaint or report; (iii) a written description of what was alleged or reported; (iv) the names of any individuals referenced by the complaint or report, as well as the names of any witnesses; (v) a written description of the resolution ofthe complaint or report, including a description ofwhat actions, if any, Sterling took; (vi) the names and titles of all parties involved in determining the nature of resolution; and (vii) if the complaint or report was made in written form, a copy thereof. If during a six-month reporting period, no such complaints or reports were received by Sterling, Sterling will provide the EEOC a

certification to that effect;

b.

A certification that the Policy and Notice have remained posted as

required by Sections XV(A) and XIII; and

c.

A certification that Sterling has distributed the Policy, as required

by Section XV(A). All such information, documentation, and data are Confidential Information pursuant to the Confidentiality Order entered in the Litigation, Docket No. 206. The EEOC will strictly maintain the confidentiality of all information, documentation, and data to which it obtains

access.

30

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 31 of 35
E. Access To Employment Practices Expert By The EEOC On a reasonable basis, the EEOC may confer with the Employment Practices Expert, about any matter within the scope of her duties under this Decree; whether written, oral, or in person, so long as such contact is made in good faith and for a legitimate purpose under this Decree, and further provided that counsel of Record for Sterling shall be notified in advance of such contact. Sterling will bear the reasonable cost for the time of the Employment Practices Expert for such conferences. XVII. DISPUTE RESOLUTION AND PROCEDURES FOR ENFORCEMENT OR RELIEF A. The Parties will work diligently and in good faith to resolve all disputes that may arise during the term of this Decree concerning the rights, obligations, and duties ofthe Parties to the Decree. B. Except where otherwise provided in this Decree, prior to initiating any formal action to enforce or seek relief from this Decree, the initiating Party will provide written notice to the other Party regarding the nature ofthe dispute. This notice shall specify: (1) the particular provision(s) believed to be in dispute; (2) a statement of the issues in dispute; (3) a statement of the remedial action sought by the initiating Party; and (4) a statement ofthe specific facts, circumstances, and any other arguments supporting the position of the initiating Party. The notice may also include a reasonable request for documents or information relevant to the dispute, and a statement regarding why the documents or information already provided to the initiating Party pursuant to this Decree is insufficient to resolve the dispute. C. Within forty-five (45) days after receiving the Notice ofDispute, the recipient Party will provide a written response and provide the requested documents or information, so
31

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 32 of 35

long as the documents and/or information sought are necessary and consistent with the authority

of the moving Party under the Decree and not unduly burdensome to produce.

D. The Parties shall attempt to resolve the dispute(s) informally and in good faith.

E.

In the event the Parties cannot informally resolve such a dispute, within forty-five

days (45), the Parties submit the dispute to Hunter Hughes who shall adjudicate the dispute. If

Hunter Hughes is unavailable or unwilling to hear the dispute, the Parties will select a mutually

agreed upon replacement. If the Parties cannot agree on a replacement, the Honorable Richard J.

Arcara ofthe United States District Court for the Western District ofNew York, or any other

Judge to whom the above-captioned case may subsequently be assigned, will facilitate the

selection of a replacement from proposed submissions presented by the parties.

F.

Sterling shall be solely responsible for bearing the fees ofHunter Hughes or any

replacement for Hunter Hughes.

F.

Any party that disagrees with Hunter Hughes' (or his replacement's) decision

may appeal it to the District Court, which shall review such determination under an abuse of

discretion standard.

G.

Any judicial proceedings related to or arising out of this Decree will be resolved

and adjudicated by the Honorable Richard J. Arcara of the United States District Court for the

Western District ofNew York, or by any other judge to whom the above-captioned case may

subsequently be assigned, unless otherwise provided in this Decree.

XVIII. POSTING OF NOTICE

Within thirty (30) days of the date of entry of this Decree, Sterling will post in conspicuous places where employee notices are posted in each of its retail stores, the Notice attached hereto as Exhibit "A". The Notice will remain posted in each such location (and in any

32

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 33 of 35

new stores) for the entire Term of this Decree. In addition, the Notice will be made available on

the Registry website for the entire Term of this Decree, and a link to the Notice entitled "Notice

to All Retail Sales Employees Re: Resolution of Discrimination Lawsuit" will appear on the

Registry interface.

XIX. ATTORNEY FEES. COSTS, EXPENSES AND NOTICES A. Both parties shall bear their own fees and expenses of the litigation. However,

Sterling will bear ali expenses incurred in order to implement the provisions of this Decree. B. Notices shall be served on the EEOC to EEOC Trial Attorney Amos Blackman.

Notices to Sterling shall be served on Gerald L. Maatman, Jr., Seyfarth Shaw.

Dated: April21, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ELERS, INC.

James Lee Deputy General Counsel
Jeffrey Burstein Regional Attorney jeffrey.burstein@eeoc.gov Amos Blackman amos. blackman@eeoc.gov Sebastian Riccardi sebastian.riccardi@eeoc.gov Trial Attorneys U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street, 5th Floor New York, NY 10004-2112

J. Lynn Dennison, Chief Legal, Risk & Corporate Affairs Officer Lynn.Dennison@signetjewelers.com Sterling Jewelers, Inc. 375 Ghent Road Akron, Ohio 44333
SEYFARTH SHAW LLP Gerald L. Maatman, Jr. gmaatman@seyfarth.com David Bennet Ross dross@seyfarth .com William F. Dugan wdugan@seyfarth .com 620 Eighth A venue, 32nd Floor New York, New York I 0018-1405 Telephone: (212) 218-5500 Facsimile; (212) 218-5526
33

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 34 of 35

!f_ tJzi , SO ORDERED, AD.ffiDGED, AND DECREED this

day of

~- 2017.

I

t.-~~-

Ufiited States Di t 1ct Ju.dge Richard J. Arcara

34

Case 1:08-cv-00706-RJA-MJR Document 435 Filed 05/04/17 Page 35 of 35

EXHIBIT A

NOTICE TO EMPLOYEES OF STERLING JEWELERS

1.

This NOTICE is being posted and provided as part of a mutually agreed upon Consent

Decree between Sterling Jewelers Inc. ("Sterling") and the Equal Employment Opportunity

Commission ("EEOC") in Civil Action No. 08-CV-0706 (W.D.N.Y.), which alleged that

Sterling discriminated against female retail sales employees on the basis of sex in pay and

promotions. The parties voluntarily entered into this Decree to resolve these allegations. As part

of this Decree, Sterling is posting this Notice to reflect its commitment to pay and promote

employees regardless oftheir sex.

2.

Sterling policy and Federal Law prohibit discrimination in any phase of employment

based upon an individual's sex (including sexual harassment, pay discrimination and

discrimination in promotion), race, color, religion, national origin, age (40 years and over),

genetic information and disability with respect to pay, promotion, recruitment, hiring, admission,

assignment, training, dismissal, or any other terms, conditions, or privileges of employment.

Sterling will comply with such Federal law in all aspects, and it will not retaliate against

employees because they have exercised their rights under the law by filing any complaint of

discrimination or cooperating with the EEOC or by otherwise opposing employment practices

made unlawful under federal law.

3.

Sterling employees may discuss their pay with anyone, including other Sterling

employees, and will not be subjected to discipline or other adverse consequences.

4.

As part of this decree, Sterling will retain an Employment Practices Expert who shall

study and recommend changes in Sterling's pay and promotion practices to ensure equal

opportunity for all employees. Sterling will implement the Employment Practices Expert's

recommended changes to Sterling's pay and promotion practices or an alternative practice that

has no greater adverse impact on Sterling's female retail sales employees.

5.

As part of this decree, Sterling will appoint a Compliance Officer to ensure Sterling's

compliance with the Consent Decree, to oversee investigation and resolution of all reports of

discrimination, and to ensure equal opportunity for all employees.

6.

The EEOC is the federal agency responsible for enforcing the federal laws described

above and receiving complaints regarding their violation. EEOC maintains offices throughout the

United States. Its toll-free telephone number is 1-800-669-4000 and website is www.eeoc.gov.

Any questions concerning the Decree or compliance with its terms may be directed to the EEOC.

Dated:- - - - - - THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
This Notice must remain posted for three (3) years and three (3) months from the date shown above and must not be altered, defaced, or covered by any other materiaL

 
 14‐1782 EEOC v. Sterling Jewelers, Inc.
In the United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2014
ARGUED: MAY 5, 2015 DECIDED: SEPTEMBER 9, 2015
No. 14‐1782
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff‐Appellant,
v.
STERLING JEWELERS INC., Defendant‐Appellee. ________
Appeal from the United States District Court for the Western District of New York.
No. 08 Civ. 706– Richard J. Arcara Judge. ________
Before: WALKER, LYNCH, and LOHIER, Circuit Judges. ________
This case arises from an Equal Employment Opportunity
Commission (“EEOC”) enforcement action under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), alleging that
CERTIFIED COPY ISSUED ON 09/09/2015

2

No. 14‐1782

Defendant‐Appellee Sterling Jewelers Inc. (“Sterling”) engaged in a

nationwide practice of sex‐based pay and promotion discrimination. After

discovery, the magistrate judge (Jeremiah J. McCarthy, J.) issued a Report

and Recommendation finding that the EEOC failed to prove that it satisfied

its statutory obligation to conduct a pre‐suit investigation and

recommended summary judgment on that basis. On March 10, 2014, the

district court (Richard J. Arcara, J.) adopted the magistrate judge’s Report

and Recommendation, and granted summary judgment to Sterling.

On appeal, the EEOC argues that the district court erred in granting

summary judgment because the magistrate judge improperly reviewed the

sufficiency of the EEOC investigation rather than whether there was an

investigation. We agree. Under Title VII, courts may review whether the

EEOC conducted an investigation, but not the sufficiency of an

investigation. The EEOC conducted an investigation in this case.

Accordingly, we VACATE the district court’s summary judgment order and

REMAND the case for further proceedings.

________

BARBARA L. SLOAN, (P. David Lopez, Carolyn L. Wheeler, Jennifer S. Goldstein, on the brief), Equal Employment

3

No. 14‐1782

Commission, Office of General Counsel, Washington, D.C. for Plaintiff‐Appellant.
GERALD L. MAATMAN, JR., (Jeffrey S. Klein, Weil, Gotshal & Manges, LLP, New York, N.Y., David Bennet Ross, William F. Dugan, Daniel B. Klein, Lorie E. Almon, Seyfarth Shaw LLP, New York, N.Y., on the brief), Seyfarth Shaw LLP, New York, N.Y., for Defendant‐Appellee.
________

JOHN M. WALKER, JR., Circuit Judge:

This case arises from an Equal Employment Opportunity

Commission (“EEOC”) enforcement action under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), alleging that

Defendant‐Appellee Sterling Jewelers Inc. (“Sterling”) engaged in a

nationwide practice of sex‐based pay and promotion discrimination. After

discovery, the magistrate judge (Jeremiah J. McCarthy, J.) issued a Report

and Recommendation finding that the EEOC failed to prove that it satisfied

its statutory obligation to conduct a pre‐suit investigation and

recommended summary judgment on that basis. On March 10, 2014, the

district court (Richard J. Arcara, J.) adopted the magistrate judge’s Report

and Recommendation, and granted summary judgment to Sterling.

4

No. 14‐1782

On appeal, the EEOC argues that the district court erred in granting

summary judgment because the magistrate judge improperly reviewed the

sufficiency of the EEOC investigation rather than whether there was an

investigation. We agree. Under Title VII, courts may review whether the

EEOC conducted an investigation, but not the sufficiency of an

investigation. The EEOC conducted an investigation in this case.

Accordingly, we VACATE the district court’s summary judgment order and

REMAND the case for further proceedings.

BACKGROUND

Sterling is the largest fine jewelry company in the United States,

operating chains including Kay Jewelers and Jared–the Galleria of Jewelry.

Between 2005 and 2007, the EEOC received 19 individual charges of

discrimination from women employed by Sterling in stores located in nine

states: California, Colorado, Florida, Indiana, Massachusetts, Missouri,

Nevada, New York, and Texas (the “Charging Parties”). Sixteen of the

charges alleged that Sterling engaged in a “continuing policy or pattern and

practice” of sex discrimination. See, e.g., App’x 1390. Five investigators

initially investigated the charges, but the EEOC later transferred all 19

5

No. 14‐1782

charges to one investigator, David Ging. Around that time, the EEOC also

requested copies of Sterling’s company‐wide protocols, including policies

governing pay, promotion, and anti‐discrimination; job descriptions for

sales associates and management positions; and computerized personnel

files listing employees’ hiring dates, responsibilities, and pay and

promotion histories.

In 2006, Sterling and the Charging Parties entered mediation and

invited the EEOC to participate. Then‐EEOC Regional Attorney Elizabeth

Grossman, who participated on behalf of the EEOC, and the parties signed a

Mediation and Confidentiality Agreement (the “Agreement”), as well as

several addenda. Under the Agreement, the EEOC agreed to suspend its

investigation during the mediation, and the parties agreed to identify the

data relevant to the charges against Sterling and produce all of the

documents on which their respective experts would rely in preparing their

reports. App’x 3666‐68. Based on the data provided by Sterling, labor

economist Dr. Louis Lanier, hired by the Charging Parties, conducted a

statistical analysis of Sterling’s pay and promotion practices. This analysis

6

No. 14‐1782

led Dr. Lanier to find that Sterling paid female employees less and

promoted them at slower rates than similarly situated male employees.

Under a confidentiality provision in the Agreement, the EEOC agreed

that it would “not rely on, or introduce as evidence in any court, arbitration,

judicial, or other proceeding” information disclosed during the mediation.

App’x 3656. However, the parties subsequently signed addenda, stating

that the documents exchanged at the mediation could be given to

Investigator Ging and permitting certain documents, including Dr. Lanier’s

analysis, to be placed in the EEOC investigative file if the mediation was

unsuccessful.

In November 2007, the mediation failed. Thereupon, Ging sent letters

to the parties stating: “I understand that Ms. Grossman has [Sterling’s]

permission to provide me with its documents exchanged in conjunction

with that mediation . . . . [and] that Ms. Grossman has Charging Parties’ and

[Sterling’s] permission to provide me with Dr. Lanier’s tables and

explanatory notes . . . . ” App’x 959‐62. Ging also encouraged the parties to

provide any additional information they wanted the EEOC to consider

during its investigation. The Charging Parties sent Ging a letter

7

No. 14‐1782

summarizing the evidence of “company‐wide” discrimination as well as

supporting documents, including declarations from the Charging Parties; a

declaration from a male employee attesting to his belief that Sterling

discriminated against female employees with regard to pay and promotion;

and Dr. Lanier’s analysis. Sterling did not provide any additional

information.

On January 30, 2008, the EEOC issued a Letter of Determination

(“LOD”) finding that Sterling “subjected Charging Parties and a class of

female employees with retail sales responsibilities nationwide to a pattern

or practice of sex discrimination in regard to promotion and compensation.”

App’x 1000. The LOD further stated:

Statistical analysis of pay and promotion data provided by [Sterling] reveals that [Sterling] promoted male employees at a statistically significant, higher rate than similarly situated female employees and that [Sterling] compensated male employees at a statistically significant, higher rate than similarly situated female employees. Witness testimony further corroborates the allegations.
App’x 1000. Then, on September 23, 2008, the EEOC filed suit in the

Western District of New York alleging that Sterling engaged in sex‐based

pay and promotion discrimination in violation of Title VII.

8

No. 14‐1782

During discovery, approximately seven years after the close of the

investigation, the parties deposed two EEOC investigators: Ging and

Jennifer Carlo, the investigator assigned to the first of the 19 charges. Ging

stated that he “d[id]n’t really recall much about [the] investigation,” App’x

32, and both investigators invoked the deliberative privilege and declined to

answer several of the questions about the investigation.

Following discovery, Sterling moved for summary judgment on

grounds that the EEOC had not satisfied its statutory obligation to conduct

a pre‐suit investigation. The magistrate judge issued a Report and

Recommendation, in which he determined that there was “no evidence that

[the EEOC] investigated a nationwide class” and recommended that the

district court grant summary judgment. App’x 83. On March 10, 2014, the

district court adopted the Report and Recommendation, granted summary

judgment to Sterling, and dismissed the EEOC’s action with prejudice. The

EEOC timely appealed.

DISCUSSION

“We review an award of summary judgment de novo, construing the

evidence in the light most favorable to the nonmoving party and drawing

9

No. 14‐1782

all reasonable inferences in his favor.” McElwee v. Cnty. of Orange, 700 F.3d

635, 640 (2d Cir. 2012). Summary judgment is only appropriate where there

is “no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a)).

I. Judicial Review of Title VII Enforcement Actions

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as

amended, prohibits employers from discriminating on the basis of race,

color, religion, sex, or national origin. Ricci v. DeStefano, 557 U.S. 557, 577

(2009). Before the EEOC may bring an enforcement action under Title VII, it

must discharge certain administrative obligations. The EEOC must: (1)

receive a formal charge of discrimination against the employer; (2) provide

notice of the charge to the employer; (3) investigate the charge; (4) make and

give notice of its determination that there was reasonable cause to believe

that a violation of Title VII occurred; and (5) make a good faith effort to

conciliate the charges. See 42 U.S.C. § 2000e–5(b); see also Mach Mining, LLC

v. EEOC, 135 S. Ct. 1645, 1649‐50 (2015). Title VII does not define

“investigation” or prescribe the steps that the EEOC must take in

10

No. 14‐1782

conducting an investigation. Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.

2002).

To ensure agency compliance with Title VII, Congress empowered

federal courts to review whether the EEOC has fulfilled its pre‐suit

administrative obligations. See Mach Mining, 135 S. Ct. at 1653 (holding that

courts may review whether the EEOC has satisfied its obligation to

conciliate). The proper scope of that review, however, is an issue of first

impression in this Circuit.

In the recently decided case of Mach Mining, the Supreme Court

provided guidance regarding the scope of judicial review of the EEOC’s

administrative obligations. Id. In the context of the EEOC’s obligation to

conciliate, the Court explained that judicial review is “narrow” and serves

to “enforce[] the statute’s requirements . . . that the EEOC afford the

employer a chance to discuss and rectify a specified discriminatory

practice―but goes no further.” Id. The Court further explained that a

sworn affidavit from the EEOC stating that it satisfied its conciliation

obligations but failed to reach an agreement “will usually suffice to show

that it has met the conciliation requirement.” Id. at 1656.

11

No. 14‐1782

Mach Mining did not address the EEOC’s obligation to investigate,

but we conclude that judicial review of an EEOC investigation is similarly

limited: The sole question for judicial review is whether the EEOC

conducted an investigation. As the district and magistrate judges in this

case recognized, courts may not review the sufficiency of an

investigation―only whether an investigation occurred. EEOC v. Keco Indus.,

Inc., 748 F.2d 1097, 1100 (6th Cir. 1984); see also EEOC v. CRST Van Expedited,

Inc., 679 F.3d 657, 674 (8th Cir. 2012) (“[T]he nature and extent of an EEOC

investigation into a discrimination claim is a matter within the discretion of

that agency.” (quoting Keco, 748 F.2d at 1100)); Newsome, 301 F.3d at 231

(same).

In order to prove that it has fulfilled its pre‐suit investigative

obligation, the EEOC must show that it took steps to determine whether

there was reasonable cause to believe that the allegations in the charge are

true. Cf. 42 U.S.C. § 2000e‐5(b) (noting that the purpose of an EEOC

investigation is to determine whether “there is reasonable cause to believe

that the charge is true”); EEOC v. Shell Oil Co., 466 U.S. 54, 71 (1984) (“[T]he

purpose of [an EEOC investigation] is to determine whether there is reason

12

No. 14‐1782

to believe those allegations are true.”). Here, the EEOC’s complaint against

Sterling alleged nationwide discrimination; accordingly, the agency must

show that it undertook to investigate whether there was a basis for alleging

such widespread discrimination. The EEOC need not, however, describe in

detail every step it took or the evidence it uncovered. As with the

conciliation process, an affidavit from the EEOC, stating that it performed

its investigative obligations and outlining the steps taken to investigate the

charges, will usually suffice. See Mach Mining, 135 S. Ct. at 1656

(concluding that a sworn affidavit from the EEOC stating that it attempted

to conciliate will usually establish that the EEOC has met its obligation to

conciliate).

There are several reasons for this approach. First, this “limited

review respects the expansive discretion that Title VII gives to the EEOC” in

investigating discrimination claims, “while still ensuring that the

Commission follows the law.” Id. at 1653. Second, it reflects the fact that

“Title VII ultimately cares about substantive results.” Id. at 1654. Allowing

courts to review the sufficiency of an EEOC investigation would “effectively

make every Title VII suit a two‐step action: First, the parties would litigate

13

No. 14‐1782

the question of whether EEOC had a reasonable basis for its initial finding,

and only then would the parties proceed to litigate the merits of the action.”

Keco, 748 F.2d at 1100 (internal quotation marks omitted). Extensive judicial

review of this sort would expend scarce resources and would delay and

divert EEOC enforcement actions from furthering the purpose behind Title

VII―eliminating discrimination in the workplace. See id; see also Ricci, 557

U.S. at 577.

II. Application

The EEOC argues that the magistrate judge, while purporting to

examine the existence of the EEOC’s investigation, actually considered its

sufficiency. We agree.

A. The EEOC Investigated the Claims Against Sterling

Testimony from EEOC investigators Ging and Carlo and the

investigative file show that the EEOC took multiple steps to investigate the

claims against Sterling.1 As the magistrate judge found, the EEOC received

19 charges, which were “investigated by five EEOC investigators.” App’x

1 The only statutory pre‐suit obligation at issue in this case is the investigation. The parties agreed that the EEOC’s participation in the mediation would satisfy its obligation to conciliate in the event that it brought an enforcement action, and there is no dispute concerning the other pre‐suit requirements.

14

No. 14‐1782

74. After receiving a letter from a Charging Party that identified six

additional women alleging sex‐based discrimination, the EEOC transferred

all of the charges to one investigator. That investigator, Ging, testified that

he reviewed all of the individual investigative files and investigated “all of

the[ ] charges as class charges.”App’x 569.

Additionally, the 2,600‐page investigative file shows that the EEOC

requested and obtained numerous documents related to the charges,

including Sterling’s company‐wide policies governing pay, promotion, and

anti‐discrimination; witness statements; Sterling’s responses to individual

allegations; the Charging Parties’ personnel documents; company‐wide job

descriptions; EEO‐1 reports; and Dr. Lanier’s statistical analysis, which

found that Sterling paid and promoted women at statistically significant

lower rates than men. Notes from the investigative file also show that the

EEOC interviewed at least one Charging Party, Jacquelyn Boyle, in January

2006 and again in February 2006.

In contrast to the cases in which some of our sister circuits concluded

that the EEOC did not satisfy Title VII’s investigation requirement, it cannot

be said here that the EEOC failed to conduct any pre‐suit investigation at

15

No. 14‐1782

all. For example, in EEOC v. Pierce Packing Co., the Ninth Circuit held that

the EEOC did not conduct a pre‐suit investigation where it “obtain[ed] the

results of [a two‐week Department of Labor] investigation,” and “did not

conduct an independent investigation.” 669 F.2d 605, 606 (9th Cir. 1982).

Similarly, in CRST, the Eighth Circuit held that the EEOC did not fulfill its

investigative obligation because “the EEOC did not investigate the specific

allegations of any of the 67 allegedly aggrieved persons . . . until after the

Complaint was filed.” CRST, 679 F.3d at 675‐76. In both Pierce Packing and

CRST, the courts determined that the EEOC failed to take any steps to

investigate. That is plainly not the case here. Although Ging acknowledged

in discovery that he did not remember much about the investigation, that

testimony―given some seven years after the investigation concluded―is

not tantamount to an admission that he failed to conduct an investigation.2

Sterling identifies a laundry list of steps the EEOC failed to take in

investigating the claims against it. But “the nature and extent of an EEOC

investigation into a discrimination claim is a matter within the discretion of

2 The lengthy and costly depositions taken in this case might have been easily avoided by an affidavit from an EEOC investigator outlining the steps taken to investigate the claims. It is especially important for the court and the parties to understand the contours of an EEOC investigation given that, as explained below, the EEOC investigation must be pertinent to the allegations that it ultimately includes in the complaint.

16

No. 14‐1782

that agency.” Keco, 748 F.2d at 1100; see also CRST, 679 F.3d at 674; EEOC v.

Caterpillar, 409 F.3d 831, 832‐33 (7th Cir. 2005); Newsome, 301 F.3d at 231. For

a court to second guess the choices made by the EEOC in conducting an

investigation “is not to enforce the law Congress wrote, but to impose extra

procedural requirements. Such judicial review extends too far.” Mach

Mining, 135 S. Ct. at 1654‐55.

B. The EEOC Investigation Was Nationwide

Ging’s testimony coupled with the documents in the investigative file

suffice to demonstrate that the EEOC investigation was nationwide. The

investigative file contains 19 charges, 16 of which alleged company‐wide

class and/or pattern‐or‐practice discrimination, from nine states across the

country (California, Colorado, Florida, Indiana, Massachusetts, Missouri,

Nevada, New York, and Texas), and Ging testified that he investigated all of

those charges as “class charges.” App’x 569. Additionally, the EEOC

obtained Dr. Lanier’s statistical analysis, based on company‐wide

computerized data, which found that Sterling paid and promoted male

employees at statistically significant higher rates than similarly‐situated

17

No. 14‐1782

female employees nationwide.3 The EEOC also obtained Sterling’s policies

governing pay and promotion, which, Sterling concedes, have nationwide

application. This testimony together with these documents is sufficient to

establish that the investigation was nationwide.

In concluding that the investigation was not nationwide, the

magistrate judge found the word “class” to be ambiguous because it could

refer to a local, regional, or nationwide class. We are, however, at a loss to

think of a locality or region that would include California, New York, and

Texas, and the cases relied on by the magistrate judge are inapposite. The

magistrate judge cited EEOC v. Outback Steak House of Florida, Inc., for the

proposition that a “class can also mean a local or regional class instead of a

nationwide class”). But, as the district court in that case explained, “both the

charges and the investigation centered around [a] three‐state region

[Colorado, Montana, and Wyoming], [so] Defendants had every reason to

3 The magistrate judge concluded that the EEOC could not rely on Dr. Lanier’s analysis in showing that the investigation was nationwide because Ging and Carlo invoked the deliberative privilege in response to questions regarding whether Dr. Lanier’s analysis was the analysis referred to in the LOD and whether the EEOC independently verified the analysis. But nothing in Title VII suggests that the EEOC must identify the documents referenced in the LOD or, as explained above, independently validate expert analysis. Therefore, the fact that Ging and Carlo declined to answer these questions about Dr. Lanier’s analysis creates no bar to the EEOC’s reliance on that analysis in establishing the scope of its investigation.

18

No. 14‐1782

believe that the ‘class’ the EEOC was referring to in its determination was a

regional class.” 520 F.Supp.2d 1250, 1267 (D. Colo. 2007). Similarly, in EEOC

v. Jillian’s of Indianapolis, IN, Inc., the EEOC’s investigation was confined to a

single state. See 279 F. Supp. 2d 974, 980 (S.D. Ind. 2003) (“The nationwide

class named in the EEOC’s Amended Complaint is not reasonably

anticipated in its investigation into the four charges filed against Jillian’s

Indianapolis.” (emphasis in original)). Because of the limited geographic

scope of the investigations in Outback Steak House and Jillian’s, there was

reason to believe the employers did not have notice that the EEOC would

bring suit on behalf of a nationwide class. By contrast, here the EEOC

investigated charges alleging class‐wide discrimination from women in nine

states across the country. We therefore conclude that the class Ging referred

to was nationwide.

Sterling contends that the EEOC cannot rely on Dr. Lanier’s analysis

to satisfy its burden of proof because the parties and the EEOC agreed that

the materials would not “lose their mediation privilege.” Def. Br. at 55.

However, the Agreement stated that the EEOC could “not rely on, or

introduce as evidence” documents exchanged during mediation “in any

19

No. 14‐1782

court, arbitration, judicial, or other proceeding.” App’x 3656. We interpret

that Agreement in light of the Fourth Addendum, in which Sterling agreed

to have Dr. Lanier’s analysis given to Ging and put in the investigative file

in the event that the mediation failed.4 To be sure, there is some tension

between various parts of the Agreement and its addenda. We read the

whole of the documents, however, to mean that the EEOC was not

precluded from relying on the analysis in reaching its own internal

determination as to whether there was reasonable cause to believe Sterling

violated Title VII. Indeed, what other purpose could the parties have for

allowing the EEOC to include Dr. Lanier’s analysis in its investigative file if

the EEOC could not review the analysis as part of its investigation? Because

the EEOC was permitted to rely on Dr. Lanier’s analysis in making its

reasonable‐cause determination, the EEOC properly referenced that analysis

as part of the proof that its investigation was nationwide.

4 There is no dispute that Sterling consented to giving Dr. Lanier’s analysis to Ging. Ging informed the parties at the close of mediation that he anticipated receiving the mediation documents and that he had the parties’ permission to do so. At no time did Sterling raise an objection.

20

No. 14‐1782

CONCLUSION

For the reasons stated above, we VACATE the district court’s order

granting summary judgment and REMAND the case for further

proceedings consistent with this opinion.

 
 Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 1 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 2 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 3 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 4 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 5 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 6 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 7 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 8 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 9 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 10 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 11 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 12 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 13 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 14 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 15 of 16

Case 1:08-cv-00706-RJA-MJR Document 437 Filed 03/11/20 Page 16 of 16

 
 Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 1 of 48
CASREF,CLOSED_2017,MEDIATION
U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo) CIVIL DOCKET FOR CASE #: 1:08−cv−00706−RJA−MJR

Equal Employment Opportunity Commission v. Sterling Jewelers, Inc. Assigned to: Hon. Richard J. Arcara Referred to: Hon. Michael J. Roemer Cause: 42:2000 Job Discrimination (Sex)
Plaintiff

Date Filed: 09/23/2008 Date Terminated: 05/04/2017 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Amos Ben Blackman EEOC 33 Whitehall Street 5th Floor New York, NY 10004 212−336−3706 Fax: 212−336−3623 Email: amos.blackman@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora E. Curtin U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street 5th Floor New York, NY 10004−2112 212−336−3693 Fax: 212−336−3623 Email: nora.curtin@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ami T. Sanghvi U.S. Equal Employment Opportunity Commission 33 Whitehall Street 5th Floor New York, NY 10004−2112 212−336−3672 Fax: 212−336−3623 Email: ami.sanghvi@eeoc.gov TERMINATED: 08/02/2012

Anna Marie Pohl U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street 5th Floor New York, NY 10004−2112 212−336−3693 Fax: 212−336−3623 Email: anna.pohl@eeoc.gov TERMINATED: 05/16/2014

Elizabeth Grossman U.S. Equal Employment Opportunity Commission 33 Whitehall Street

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 2 of 48
5th Floor New York, NY 10004−2112 (212) 336−3696 Fax: (212) 336−3623 Email: elizabeth.grossman@eeoc.gov TERMINATED: 05/12/2014
Jeffrey C. Burstein Equal Employment Opportunity Commission One Newark Center 21st Floor Newark, NJ 07102 973−645−2267 Fax: 973−645−4524 Email: jeffrey.burstein@eeoc.gov ATTORNEY TO BE NOTICED
Jeffrey A. Stern U.S. Equal Employment Opportunity Commission AJC Federal Building 1240 East Ninth Street Suite 3001 Cleveland, OH 44199 216−522−7458 Fax: 216−522−7430 Email: jeffrey.stern@eeoc.gov ATTORNEY TO BE NOTICED
Jennifer Lynn Hope Equal Employment Opportunity Commission 801 Market Street Suite 1300 Philadelphia, PA 19107 215−440−2841 Fax: 215−440−2848 Email: jennifer.hope@eeoc.gov ATTORNEY TO BE NOTICED
Judith Ann Biltekoff Equal Employment Opportunity Commission 6 Fountain Plaza, Suite 350 Buffalo, NY 14202 716−551−3356 Fax: 716−551−4378 Email: judith.biltekoff@eeoc.gov TERMINATED: 10/31/2016
Justin Mulaire EEOC 33 Whitehall Street 5th Floor New York, NY 10004 212−336−3744 Email: justin.mulaire@eeoc.gov ATTORNEY TO BE NOTICED
Konrad Batog U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 3 of 48
5th Floor New York, NY 10004−2112 212−336−3700 Fax: 212−336−3623 Email: konrad.batog@eeoc.gov TERMINATED: 09/25/2015
Lawrence Mays U.S. Equal Employment Opportunity Commission AJC Federal Building 1240 East Ninth Street Suite 3001 Cleveland, OH 44199 216−522−4796 Fax: 216−522−7430 Email: lawrence.mays@eeoc.gov TERMINATED: 05/12/2014
Liane Tai Rice EEOC 33 Whitehall Street 5th Floor New York, NY 10004 212−336−3690 Fax: 212−336−3623 Email: liane.rice@eeoc.gov ATTORNEY TO BE NOTICED
Lisa H. Hernandez Equal Employment Opportunity Commission 1000 Liberty Avenue Suite 1112 Pittsburgh, PA 15222 412−395−5852 Fax: 412−395−5749 Email: lisa.hernandez@eeoc.gov ATTORNEY TO BE NOTICED
Margaret Ann Malloy U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street 5th Floor New York, NY 10004−2112 212−336−3690 Fax: 212−336−3636 Email: margaret.malloy@eeoc.gov TERMINATED: 08/24/2012
Natasha L. Abel Equal Employment Opportunity Commission 801 Market Street Suite 1300 Philadelphia, PA 19107 215−440−2686 Fax: 215−440−2848 Email: natasha.abel@eeoc.gov TERMINATED: 08/02/2012
Sebastian Riccardi EEOC

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 4 of 48
33 Whitehall Street 5th Floor New York, NY 10004 212−336−3698 Fax: 212−336−3623 Email: sebastian.riccardi@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Sterling Jewelers, Inc.

represented by Brian Daniel Murphy Seyfarth Shaw LLP 620 Eighth Avenue Floor 32 New York, NY 10018−1405 212−218−3351 Fax: 212−218−5526 Email: bmurphy@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Bennet Ross Seyfarth Shaw LLP 620 Eighth Avenue Floor 32 New York, NY 10018−1405 (212) 218−5500 Fax: (212) 218−5526 Email: dross@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gloria Galant Seyfarth Shaw LLP 620 Eighth Avenue Floor 32 New York, NY 10018−1405 212−218−5531 Fax: 212−218−5526 Email: ggalant@seyfarth.com LEAD ATTORNEY
Jeffrey S. Klein Weil, Gotschal & Manges, LLP 767 Fifth Avenue New York, NY 10153−0119 212−310−8790 Fax: 212−310−8007 Email: jeffrey.klein@weil.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lorie E. Almon Seyfarth Shaw LLP 620 Eighth Avenue Suite 3300 New York, NY 10018 (212) 218−5500 Fax: (212) 218−5526 Email: lalmon@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 5 of 48
Scott Patrick Horton Bond, Schoeneck & King, PLLC Avant Building 200 Delaware Avenue Suite 900 Buffalo, NY 14202 716−416−7000 Fax: 716−416−7001 Email: shorton@bsk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Dugan Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, Il 60606 312−460−5000 Fax: 312−460−7000 Email: wdugan@seyfarth.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Britt J. Rossiter Zashin & Rich Co., L.P.A. 950 Main Avenue 4th Floor Cleveland, OH 44113 216−696−4441 Fax: 216−696−1618 Email: bjr@zrlaw.com TERMINATED: 12/03/2012 PRO HAC VICE
Christina M. Janice Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 312−460−5224 Fax: 312−460−7279 Email: cjanice@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel B. Klein Seyfarth Shaw LLP World Trade Center East Two Seaport Lane, Suite 300 Boston, MA 02210 617−946−4800 Fax: 617−946−4801 Email: dklein@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED
Francis Patrick Kinson Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 312−460−5000 Fax: 312−460−7000 Email: fkinson@seyfarth.com

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 6 of 48

Intervenor Arbitration Claimants

TERMINATED: 02/03/2010 PRO HAC VICE
Gerald L. Maatman , Jr. Seyfarth Shaw LLP 620 Eighth Avenue Floor 32 New York, NY 10018−1405 212−218−3360 Fax: 212−218−5526 Email: gmaatman@seyfarth.com ATTORNEY TO BE NOTICED
John M. Monahan Jaeckle Fleischmann & Mugel, LLP (Bflo) Avant Building, Suite 900 200 Delaware Avenue Buffalo, NY 14202−2107 716−843−3870 Fax: 716−856−0432 Email: jmonahan@jaeckle.com TERMINATED: 04/19/2010
Marcia Henry Seyfarth Shaw LLP 620 Eighth Avenue Floor 32 New York, NY 10018−1405 212−218−3336 Email: mhenry@seyfarth.com TERMINATED: 05/20/2009
Richard Ira Scharlat Seyfarth Shaw LLP 620 Eighth Avenue Floor 32 New York, NY 10018−1405 212−218−5529 Fax: 917−344−1281 Email: rscharlat@seyfarth.com TERMINATED: 10/18/2010
Stephen S. Zashin Zashin & Rich Co., L.P.A. 950 Main Avenue 4th Floor Cleveland, OH 44113 216−696−4441 Fax: 216−696−1618 Email: ssz@zrlaw.com TERMINATED: 12/03/2012
represented by Donald Eppers Brown & Kelly, LLP 1500 Liberty Building Buffalo, NY 14202 (716) 854−2620 Fax: (716) 854−0082 Email: deppers@brownkelly.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jenny R. Yang

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 7 of 48
Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 202−408−4600 Fax: 202−408−4699 Email: jyang@cohenmilstein.com TERMINATED: 05/03/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Sellers Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 202−408−4600 Fax: 202−408−4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lisa M Mezzetti Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Suite 500 West Tower Washington, DC 20005 202−408−4606 Email: lmezzetti@cohenmilstein.com TERMINATED: 09/23/2013
Lisa T. Sofferin Brown & Kelly, LLP 1500 Liberty Building Buffalo, NY 14202 (716) 854−2620 Fax: 716−854−0082 Email: lsofferin@brownkelly.com TERMINATED: 03/20/2012

Date Filed 09/23/2008 09/23/2008 09/23/2008 10/14/2008
11/25/2008 11/25/2008 11/25/2008

# Docket Text
1 COMPLAINT against Sterling Jewelers, Inc., filed by Equal Employment Opportunity Commission; jury demand.(DZ) (Entered: 09/24/2008)
Remark − summonses not issued at this time. (DZ) (Entered: 09/24/2008)
AUTOMATIC REFERRAL to Mediation (DZ) (Entered: 09/24/2008)
2 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Sterling Jewelers, Inc. waiver sent on 9/26/2008, answer due 11/26/2008. (Malloy, Margaret) (Entered: 10/14/2008)
3 Corporate Disclosure Statement by Sterling Jewelers, Inc. identifying Corporate Parent Signet Group plc for Sterling Jewelers, Inc... (Scharlat, Richard) (Entered: 11/25/2008)
4 NOTICE of Appearance by Richard Ira Scharlat on behalf of Sterling Jewelers, Inc. (Scharlat, Richard) (Entered: 11/25/2008)
5 NOTICE of Appearance by Richard Ira Scharlat on behalf of Sterling Jewelers, Inc. (Scharlat, Richard) (Entered: 11/25/2008)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 8 of 48

11/25/2008 11/25/2008 11/25/2008 11/25/2008
11/25/2008 11/25/2008
11/25/2008 11/25/2008 11/25/2008 11/25/2008
11/25/2008 11/25/2008 11/25/2008 11/25/2008 11/26/2008 11/26/2008 11/26/2008
11/26/2008

6 MOTION for Leave to Appear Pro Hac Vice of William F. Dugan by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of William Dugan, # 2 Declaration of Richard I. Scharlat)(Scharlat, Richard) (Entered: 11/25/2008)
7 MOTION for Leave to Appear Pro Hac Vice of Britt J. Rossiter by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of Britt J. Rossiter, # 2 Declaration of Stephen Zashin)(Scharlat, Richard) (Entered: 11/25/2008)
8 ANSWER to 1 Complaint with Affirmative Defenses by Sterling Jewelers, Inc..(Scharlat, Richard) (Entered: 11/25/2008)
9 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of Richard I. Scharlat in Support, # 2 Exhibit A, # 3 Exhibit B)(Scharlat, Richard) (Entered: 11/25/2008)
10 MEMORANDUM in Support re 9 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 filed by Sterling Jewelers, Inc.. (Scharlat, Richard) (Entered: 11/25/2008)
11 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 10 Memorandum in Support of Motion (Compendium of UnReported Cases Cited in Defendant Sterling Jewelers Inc.'s Memorandum of Law in Support of Its Motion to Dismiss with Tab A through L) filed by Sterling Jewelers, Inc.. (Scharlat, Richard) (Entered: 11/25/2008)
12 Corporate Disclosure Statement by Sterling Jewelers, Inc. identifying Corporate Parent Signet Group, plc for Sterling Jewelers, Inc... (Maatman, Gerald) (Entered: 11/25/2008)
13 NOTICE of Appearance by Gerald L. Maatman, Jr on behalf of Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 11/25/2008)
14 ANSWER to 1 Complaint with Affirmative Defenses by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 11/25/2008)
15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of Richard I. Scharlat, # 2 Exhibit A, # 3 Exhibit B)(Maatman, Gerald) (Entered: 11/25/2008)
16 MEMORANDUM in Support re 15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 11/25/2008)
17 CONTINUATION OF EXHIBITS to 16 Memorandum in Support of Motion. (Maatman, Gerald) (Entered: 11/25/2008)
18 MOTION An Order permitting Defendant to proceed in this action without retaining local counsel by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of Richard I. Scharlat)(Scharlat, Richard) (Entered: 11/25/2008)
E−Filing Notification: 16 Memorandum in Support of Motion and 17 CONTINUATION OF EXHIBITS to (Maatman, Gerald), **Certificate of service required** (DZ) (Entered: 11/26/2008)
19 ADR Notice and Plan forwarded to attorneys.(DZ) (Entered: 11/26/2008)
20 CERTIFICATE OF SERVICE by Sterling Jewelers, Inc. re 16 Memorandum in Support of Motion to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 (Scharlat, Richard) (Entered: 11/26/2008)
21 CERTIFICATE OF SERVICE by Sterling Jewelers, Inc. re 17 Continuation of Exhibits : Compendium of Unreported Cases Cited in Defendant's Memorandum of Law in Support of its Motion to Dismiss Any Aspects of the Complaint Seeking Relief for Alledged Discrimination Prior to July 22, 2004 with Tabs A to L (Scharlat, Richard) (Entered: 11/26/2008)
22 ORDER REFERRING CASE to Magistrate Judge Hon. Jeremiah J. McCarthy. Signed by Hon. Richard J. Arcara on 11/26/2008. (JMB) (Entered: 11/26/2008)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 9 of 48

11/28/2008
11/28/2008 11/28/2008 12/01/2008
12/04/2008 12/08/2008 12/19/2008 12/19/2008 12/22/2008 12/23/2008
12/29/2008 12/31/2008
12/31/2008 01/06/2009 01/14/2009 01/14/2009
01/15/2009
01/15/2009

23 TEXT ORDER: Plaintiff's response to defendant's motion to dismiss 15 shall be served and filed on or before December 31, 2008; a reply, if any shall be served and filed on or before January 14, 2009, after which time the motion will be taken under advisement without oral argument unless requested by the parties or deemed necessary by the court. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 11−28−09. (DAZ) (Entered: 11/28/2008)
24 ORDER granting 6 Motion for Leave to Appear pro hac vice (William F. Dugan, Esq.). Signed by Hon. Jeremiah J. McCarthy on 11−28−08. (DAZ) (Entered: 11/28/2008)
25 ORDER granting 7 Motion for Leave to Appear pro hac vice (Britt J. Rossiter, Esq.). Signed by Hon. Jeremiah J. McCarthy on 11−28−08. (DAZ) (Entered: 11/28/2008)
26 TEXT ORDER: Defendant's motion for leave to proceed without local counsel 18 is DENIED, without prejudice. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 12/1/08. (The Court has mailed copies of this Order to William F. Dugan, David Bennet Ross, Britt J. Rossiter). (Entered: 12/01/2008)
Pro Hac Vice Filing fee: $ 75, receipt number 10440 received from William F. Dugan, Esq. (JDK) (Entered: 12/04/2008)
27 NOTICE of Appearance by Stephen S. Zashin on behalf of Sterling Jewelers, Inc. (Zashin, Stephen) (Entered: 12/08/2008)
28 NOTICE of Appearance by Marcia Henry on behalf of Sterling Jewelers, Inc. (Henry, Marcia) (Entered: 12/19/2008)
29 MOTION for Leave to Appear Pro Hac Vice of Francis Patrick Kinson by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of Francis Patrick Kinson, # 2 Declaration of Richard I. Scharlat)(Scharlat, Richard) (Entered: 12/19/2008)
Remark − confirmed admission of Francis Patrick Kinson to the Illinois State Bar. (DZ) (Entered: 12/22/2008)
30 ORDER granting 29 Motion for Leave to Appear Pro Hac Vice. Signed by Hon. Jeremiah J. McCarthy on 12/23/08. (DAZ) (The Court has mailed a copy of this Order to Britt J. Rossiter, David Bennet Ross and Francis Patrick Kinson). (Entered: 12/24/2008)
Pro Hac Vice Filing fee paid for Britt J. Rossiter: $ 75.00, receipt number 10721 (DZ) (Entered: 01/05/2009)
31 MEMORANDUM in Opposition re 15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 12/31/2008)
32 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 31 Memorandum in Opposition to Motion (Malloy, Margaret) (Entered: 12/31/2008)
Pro Hac Vice Filing fee paid for Francis Kinson: $ 75.00, receipt number 10795 (DZ) (Entered: 01/07/2009)
33 NOTICE of Appearance by John M. Monahan on behalf of Sterling Jewelers, Inc. (Monahan, John) (Entered: 01/14/2009)
34 MEMORANDUM in Support re 15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 filed by Sterling Jewelers, Inc.. (Attachments: # 1 Certificate of Service)(Maatman, Gerald) (Entered: 01/14/2009)
35 CONTINUATION OF EXHIBITS to 34 Memorandum in Support of Motion (Compendium of Unreported Cases to Defendant's Reply Memorandum in Support of its Motion to Dismiss Any Aspects of The Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004). (Maatman, Gerald) (Entered: 01/15/2009)
36 NOTICE of Appearance by Elizabeth Grossman on behalf of Equal Employment Opportunity Commission (Attachments: # 1 Notice of Appearance)(Grossman, Elizabeth) (Entered: 01/15/2009)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 10 of 48

02/02/2009 02/03/2009
02/03/2009 02/13/2009
02/18/2009 02/19/2009 02/20/2009 02/23/2009 02/25/2009 02/27/2009 03/06/2009 03/11/2009 03/12/2009 03/16/2009 04/20/2009 04/20/2009
06/26/2009
06/26/2009

37 MOTION for Leave to File Document Addressing Lilly Ledbetter Fair Pay Act by Equal Employment Opportunity Commission.(Malloy, Margaret) (Entered: 02/02/2009)
38 TEXT ORDER : Plaintiff's motion for leave to file a document addressing the Lilly Ledbetter Fair Pay Act 37 is GRANTED. Plaintiff may file and serve this document on or before February 13, 2009, and defendant may file and serve a response on or before February 23, 2009. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 2/3/09. (DAZ) (Entered: 02/03/2009)
Set/Reset Deadlines: To be filed by 2/13/2009 and response due by 2/23/2009. (DAZ) (Entered: 02/03/2009)
39 MEMORANDUM in Opposition re 15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 Supplemental Brief filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 02/13/2009)
40 MOTION for Leave to File Excess Pages to Responsive Brief by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 02/18/2009)
41 NOTICE by Sterling Jewelers, Inc. to the Court of Constitutional Challenge Pursuant to Rule 24 of the Local Rules for the Western District of New York (Maatman, Gerald) (Entered: 02/19/2009)
42 ORDER granting 40 Motion for Leave to File Excess Pages. Signed by Hon. Jeremiah J. McCarthy on 2/19/09. (DAZ) (Entered: 02/20/2009)
43 REPLY/RESPONSE to re 39 Memorandum in Opposition to Motion, Defendant's Memorandum of Law in Response to the EEOC's Supplemental Briefing filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 02/23/2009)
44 MOTION for Leave to File Response by Equal Employment Opportunity Commission.(Malloy, Margaret) (Entered: 02/25/2009)
45 ORDER granting 44 Motion for Leave to File. Signed by Hon. Jeremiah J. McCarthy on 2/27/09. (DAZ) (Entered: 02/27/2009)
46 REPLY/RESPONSE to re 43 Reply/Response filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 03/06/2009)
47 MOTION for Leave to File Excess Pages of its sur−reply brief to EEOC's reply brief by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 03/11/2009)
48 ORDER granting 47 Motion for Leave to File Excess Pages. Signed by Hon. Jeremiah J. McCarthy on 3/12/09. (DAZ) (Entered: 03/12/2009)
49 MEMORANDUM/BRIEF re 46 Reply/Response : Defendant's Reply Memorandum in Response to the EEOC's Supplemental Briefing by Sterling Jewelers, Inc.. (Attachments: # 1 Certificate of Service)(Maatman, Gerald) (Entered: 03/16/2009)
50 TEXT ORDER : Oral argument of defendant's motion for partial dismissal 15 is set for June 19, 2009 at 2:00 p.m. before Hon. Jeremiah J. McCarthy. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/20/09. (DAZ) (Entered: 04/20/2009)
51 TEXT ORDER : At the parties' request, oral argument of defendant's motion for partial dismissal 15 is rescheduled to June 26, 2009 at 2:00 p.m. before Hon. Jeremiah J. McCarthy. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/20/09. (DAZ) (Entered: 04/20/2009)
52 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument held on 6/26/2009. Parties argued their various positions, cited case law. Participants: Margaret Ann Malloy for Plaintiff and John M. Monahan and Gerald L. Maatman, Jr. for Defendant. (DAZ) (Entered: 06/26/2009)
53 TEXT ORDER : As agreed during oral argument today, the parties' post−argument submissions (not to exceed 5 pages in length) shall be filed by July 17, 2009, whereupon the motion 15 will be deemed submitted. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/26/09. (DAZ) (Entered: 06/26/2009)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 11 of 48

07/08/2009
07/17/2009 07/17/2009 07/17/2009 07/20/2009 07/20/2009 07/20/2009 09/30/2009 10/01/2009 10/14/2009 10/14/2009 10/14/2009 10/14/2009 10/15/2009

54 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/26/09, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Michelle L. McLaughlin, Telephone number (716) 332−3560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/29/2009. Redacted Transcript Deadline set for 8/10/2009. Release of Transcript Restriction set for 10/6/2009. (DZ) (Entered: 07/08/2009)
55 REPLY/RESPONSE to re 53 Order, 15 Motion, Set Deadlines/Hearings, /Letter Response filed by Sterling Jewelers, Inc.. (Maatman, Gerald) Text Modified on 7/20/2009 (DZ). (Entered: 07/17/2009)
56 RESPONSE in Opposition re 15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 supplemental letter brief filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 07/17/2009)
E−Filing Notification: 55 REPLY/RESPONSE Text modified to indicate also related to 15 Motion (DZ) (Entered: 07/20/2009)
E−Filing Notification: 56 RESPONSE in Opposition (Malloy, Margaret), 55 REPLY/RESPONSE to re 53 Order, 15 Motion, (Maatman, Gerald) ***Proof of Service required pursuant to Chambers** (DZ) (Entered: 07/20/2009)
57 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 56 Response in Opposition to Motion, (Malloy, Margaret) (Entered: 07/20/2009)
58 CERTIFICATE OF SERVICE by Sterling Jewelers, Inc. re 55 Reply/Response in further support of Defendants Motion to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 (Maatman, Gerald) (Entered: 07/20/2009)
59 REPORT AND RECOMMENDATION re 15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 filed by Sterling Jewelers, Inc. Objections due ten days from receipt. Signed by Hon. Jeremiah J. McCarthy on 9/30/09. (DAZ) (Entered: 09/30/2009)
60 AMENDED REPORT AND RECOMMENDATION re 15 MOTION to Dismiss Any Aspects of the Complaint Seeking Relief for Alleged Discrimination Prior to July 22, 2004 filed by Sterling Jewelers, Inc. Objections due ten days from receipt. Signed by Hon. Jeremiah J. McCarthy on 10/1/09. (DAZ) (Entered: 10/01/2009)
61 OBJECTION to 60 Report and Recommendations /Objections Pursuant to Rule 72 to Magistrate Judge McCarthy's Amended Report and Recommendation by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 10/14/2009)
62 CONTINUATION OF EXHIBITS to 61 Objection to Report and Recommendations /Compendium of Unreported Cases Cited in Defendant's Objections Pursuant to Rule 72 to Magistrate Judge McCarthy's Amended Report and Recommendation (Part 1). (Maatman, Gerald) (Entered: 10/14/2009)
63 CONTINUATION OF EXHIBITS /Compendium of Unreported Cases Cited in Defendant's Objections Pursuant to Rule 72 to Magistrate Judge McCarthy's Amended Report and Recommendation (Part 2). (Maatman, Gerald) (Entered: 10/14/2009)
E−Filing Notification: 63 CONTINUATION OF EXHIBITS **document to be refiled with cover page containing case caption and case number and the title of document is it related to; also, proof of service required on items #62 and #63** (Maatman, Gerald) (DZ) (Entered: 10/15/2009)
64 CONTINUATION OF EXHIBITS to 61 Objection to Report and Recommendations, 62 Continuation of Exhibits, /Re−File of Part 2 of Compendium. (Attachments: # 1 Certificate of Service for Compendium of Unreported Cases Cited in Defendant Sterling Jewelers Inc.'s Objections Pursuant to Rule 72 to Magistrate Judge McCarthy's Amended Reported and Recommendation)(Maatman, Gerald) (Entered: 10/15/2009)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 12 of 48

10/30/2009
11/03/2009 11/13/2009 12/14/2009
01/06/2010 01/06/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/20/2010
01/20/2010
01/22/2010 01/25/2010 01/25/2010 01/26/2010 01/26/2010

NOTICE OF ORAL ARGUMENT AND BRIEFING SCHEDULE. Oral Argument as to 61 Objections filed by defendant to 60 AMENDED REPORT AND RECOMMENDATION of Magistrate Judge Jeremiah J. McCarthy is scheduled for 12/14/2009 at 03:00 PM before Hon. Richard J. Arcara. Response papers are to be filed by 11/16/2009. No reply papers will be accepted. (DJD) (Entered: 10/30/2009)
65 REPLY/RESPONSE to re 61 Objection to Report and Recommendations filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 11/03/2009)
66 NOTICE of Appearance by Ami T. Sanghvi on behalf of Equal Employment Opportunity Commission (Sanghvi, Ami) (Entered: 11/13/2009)
Minute Entry for proceedings held 12/14/2009 before Hon. Richard J. Arcara. Oral Argument is held as to 61 Objections filed by defendant to 60 AMENDED REPORT AND RECOMMENDATION of Magistrate Judge Jeremiah J. McCarthy. Decision is reserved. Appearances: Pltf − Margaret Ann Malloy; Deft − Gerald Maatman and Scott Horton (Court Reporter Yvonne Garrison.) (DJD) (Entered: 01/05/2010)
67 ORDER adopting AMENDED Report and Recommendation re 60 denying 15 Motion to Dismiss. Case is referred back to Magistrate Jude McCarthy for further proceedings. Signed by Hon. Richard J. Arcara on 1/6/2010. (JMB) (Entered: 01/06/2010)
68 ORDER OF PRELIMINARY PRETRIAL CONFERENCE set for 2/5/2010 AT 02:00 PM before Hon. Jeremiah J. McCarthy. Signed by Hon. Jeremiah J. McCarthy on 1/6/10. (DAZ) (Entered: 01/07/2010)
69 MOTION for Leave to Appeal Certification of Issues for Interlocutory Appeal by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 01/19/2010)
70 DECLARATION signed by Gerald L. Maatman, Jr. re 69 MOTION for Leave to Appeal Certification of Issues for Interlocutory Appeal filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 01/19/2010)
71 MEMORANDUM IN SUPPORT re 69 MOTION for Leave to Appeal Certification of Issues for Interlocutory Appeal bySterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 01/19/2010)
72 CONTINUATION OF EXHIBITS re 71 Memorandum In Support re 69 Motion for Leave to Appeal, "Compendium of Unreported Cases Cited"/I> bySterling Jewelers, Inc.. (Maatman, Gerald) Modified title on 1/20/2010 (SG). (Entered: 01/19/2010)
E−Filing Notification: Modified title on 1/20/2010 72 CONTINUATION OF EXHIBITS re 71 Memorandum In Support re 69 Motion for Leave to Appeal, "Compendium of Unreported Cases Cited"/I> bySterling Jewelers, Inc.. (Maatman, Gerald) (SG) (Entered: 01/20/2010)
73 TEXT ORDER Plaintiff to file a response to defendant's motion for certificateon of issues and for interlocutory appeal by 2/5/2010. Defendant's reply due by 2/12/2010, after which time the matte will be deemed submitted. Signed by Hon. Richard J. Arcara on 1/20/2010. (JMB) (Entered: 01/20/2010)
74 MOTION for Extension of Time to File Proposed Scheduling/Case Management Order by Equal Employment Opportunity Commission.(Malloy, Margaret) (Entered: 01/22/2010)
75 DISCOVERY PLAN by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 01/25/2010)
E−Filing Notification: 75 DISCOVERY PLAN by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) **Document missing attorney signature**(DZ) (Entered: 01/26/2010)
76 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 75 Discovery Plan. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 01/26/2010)
77 ORDER granting 74 Motion for Extension of Time to File. Signed by Hon. Jeremiah J. McCarthy on 1/26/10. (DAZ) (Entered: 01/26/2010)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 13 of 48

01/28/2010 02/02/2010 02/03/2010 02/05/2010 02/05/2010
02/05/2010 02/05/2010 02/12/2010 02/12/2010 02/19/2010
02/22/2010

78 TEXT ORDER : At plaintiff's request and with defendant's consent, the February 5, 2010 conference is adjourned from 2:00 p.m. to 3:00 p.m. SO ORDERED.Issued by Hon. Jeremiah J. McCarthy on 1/28/10. (DAZ) (Entered: 01/28/2010)
79 MOTION for Discovery Coordination by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 02/02/2010)
80 MOTION Sterling's response to the EEOC's letter request of February 2, 2010, regarding discovery coordination re 79 MOTION for Discovery Coordination by Sterling Jewelers, Inc.. (Attachments: # 1 Certificate of Service)(Maatman, Gerald) (Entered: 02/03/2010)
81 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status/Scheduling Conference held on 2/5/2010. Participants: Margaret Ann Malloy for Plaintiff (via telephone), Scott Patrick Horton (local) and Gerald L. Maatman, Jr. (via telephone) for Defendant. (DAZ) (Entered: 02/05/2010)
82 TEXT ORDER : In accordance with today's proceeding, plaintiff's motion to bifurcate and to consolidate discovery shall be served and filed on or before February 12, 2010; a response shall be served and filed on or before February 19, 2010; a reply, if any, shall be served and filed on or before February 26, 2010, and oral argument is set for March 1, 2010 at 10:00 a.m. before Hon. Jeremiah J. McCarthy. The parties may participate via telephone by providing the court with a telephone number where they can be contacted. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 2/5/10. (DAZ) (Entered: 02/05/2010)
CALENDAR EVENT: Oral Argument set for 3/1/2010 AT 10:00 AM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 02/05/2010)
83 MEMORANDUM in Opposition re 69 MOTION for Leave to Appeal Certification of Issues for Interlocutory Appeal filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 02/05/2010)
84 REPLY/RESPONSE to re 83 Memorandum in Opposition to Motion, 69 MOTION for Leave to Appeal Certification of Issues for Interlocutory Appeal /Defendant's Reply to the EEOC's Response To Defendant's Motion for Certification of Issues for Interlocutory Appeal filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 02/12/2010)
85 MOTION to Bifurcate and Coordinate by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Certificate of Service)(Malloy, Margaret) (Entered: 02/12/2010)
86 RESPONSE to Motion re 85 MOTION to Bifurcate and Coordinate /Defendant's Response To The EEOC's Motion For Bifurcation Of Discovery And Trial And For Coordination Of Discovery filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1 − Order In EEOC v. LA Weight Loss, # 2 Exhibit 2 − Memorandum & Order In EEOC v. McCormick & Schmick's Seafood Restaurants, Inc., # 3 Exhibit 3 − Declaration Of Gerald L. Maatman, Jr., Counsel For Sterling Jewelers Inc., Including Exhibits A−E, # 4 Exhibit A To Maatman Declaration − Sterling's Notice Of Depositions To Claimant's Counsel In The AAA Proceeding, # 5 Exhibit B To Maatman Declaration − Sterling's Rule 33 Interrogatories And Rule 34 Requests To Produce Documents Served On The EEOC On 2/5/10, # 6 Exhibit C To Maatman Declaration − Sterling's Notice Of Deposition To The EEOC In EEOC v. Sterling Jewelers Inc., # 7 Exhibit D To Maatman Declaration − Sterling's Correspondence To The EEOC Dated 2/17/10, # 8 Exhibit E To Maatman Declaration − Mediation And Confidentiality Agreement And Addendum Between The EEOC And Sterling, # 9 Exhibit 4 − Case Management Order Re Class Certification In Jock, et al. v. Sterling Jewelers Inc. (AAA Oct. 29, 2009), # 10 Exhibit 5 − Protective Order Regarding Exchange Of Confidential Information In Jock, et al. v. Sterling Jewelers Inc. (AAA Jan. 8, 2010), # 11 Exhibit 6 − EEOC Letter Of Determination (Dated Jan. 3, 2008))(Maatman, Gerald) (Entered: 02/19/2010)
87 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 86 Response to Motion,,,,,, /Defendant's Compendium of Unreported Cases Cited in Defendant Sterling Jeweler Inc.'s Response to the EEOC's Motion for Bifurcation of Discovery

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 14 of 48

02/26/2010 02/26/2010 02/26/2010
03/01/2010
03/01/2010
03/05/2010 03/05/2010 03/17/2010
03/24/2010 03/24/2010 03/24/2010

and Trial and for Coordination of Discovery filed by Sterling Jewelers, Inc.. (Attachments: # 1 Tab A − Balalovski v. Lucent Techs., Inc., # 2 Tab B − Barefield v. Chevron, # 3 Tab C − Butler v. Home Depot, # 4 Tab D − Chapman v. Carmike Cinemas, Inc., # 5 Tab E − County of Suffolk v. Amerada Hess Corp. (In Re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.), # 6 Tab F − EEOC v. ABM Indus., # 7 Tab G − EEOC v. CRST Van Expedited, Inc., # 8 Tab H − EEOC v. Intl Profit Assocs., Inc., # 9 Tab I − EEOC v. McCormick & Schmicks, # 10 Tab J − EEOC v. United Parcel Serv., Inc., # 11 Tab K − In Re Cmty. Bank of N. Va., # 12 Tab L − Medical Diagnostic Imaging, PLLC v. Carecore Natl, LLC, # 13 Tab M − Serrano v. Cintas Corp., # 14 Tab N − Simonetti v. Runyon, # 15 Tab O − Williams v. United Parcel Serv., Inc., # 16 Tab P − Zenith Radio Corp. v. Matsushita Elec. Industrial Co.)(Maatman, Gerald) (Entered: 02/22/2010)
88 ORDER denying 69 Motion for Leave to Appeal. Case is referred back to Magistrate Judge McCarthy for further proceedings. Signed by Hon. Richard J. Arcara on 2/26/2010. (JMB) (Entered: 02/26/2010)
89 NOTICE by Equal Employment Opportunity Commission of Appearance of Nora E. Curtin for EEOC (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 02/26/2010)
90 REPLY/RESPONSE to re 85 MOTION to Bifurcate and Coordinate filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Letter from Sterling to Arbitrator, # 2 Exhibit Letter from plaintiffs to Arbitrator, # 3 Exhibit Plaintiffs' Brief to Arbitrator, # 4 Exhibit Sterling's Document Requests to EEOC, # 5 Exhibit Sterling's Document Requests in Arbitration, # 6 Certificate of Service)(Malloy, Margaret) (Entered: 02/26/2010)
91 STATUS REPORT /Letter To Magistrate Judge McCarthy Pursuant To His Request At The Motion Hearing On March 1, 2010 by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − Examples Of Sterlings Workplace Arbitration Agreements (From Laryssa Jock, et al. v. Sterling Jewelers Inc., Case No. 08−Civ−2875 (JSR) (S.D.N.Y.) (Document No. 45, dated June 2, 2008)))(Maatman, Gerald) (Entered: 03/01/2010)
92 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument re plaintiff's motion to bifurcate and to consolidate discovery 85 held on 3/1/10. Decision to follow. Participants: Margaret Ann Malloy (via telephone) and Nora Curtin for Plaintiff; Gerald L. Maatman, Jr. (via telephone) and Scott Patrick Horton for Defendant. (DAZ) (Entered: 03/01/2010)
93 NOTICE of Appearance by Judith Ann Biltekoff on behalf of Equal Employment Opportunity Commission (Biltekoff, Judith) (Entered: 03/05/2010)
94 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: In Chambers Telephonic Status Conference re discovery issues held on 3/5/2010. Participants: Margaret Ann Malloy for Plaintiff and Gerald L. Maatman, Jr. for Defendant. (DAZ) (Entered: 03/05/2010)
95 TEXT ORDER : A telephonic status conference concerning plaintiff's March 17, 2010 discovery letter is set for March 24, 2010 at 10:00 a.m. before Hon. Jeremiah J. McCarthy. Defendant shall submit a letter response by March 19, 2010. The parties shall provide the court with a telephone number where they can be contacted. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 3/17/10. (DAZ) (Entered: 03/17/2010)
96 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference re discovery issues held on 3/24/2010. A further conference is scheduled for April 14, 2010 at 2:00 p.m. Participants: Margaret Ann Malloy for Plaintiff and Gerald L. Maatman for Defendant. (DAZ) (Entered: 03/24/2010)
CALENDAR EVENT: Status Conference set for 4/14/2010 at 02:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 03/24/2010)
97 TEXT ORDER : In accordance with today's proceeding, the parties shall confer and advise me in writing by April 7, 2010 what issues, if any, remain regarding the sufficiency of the investigative files produced by the EEOC. A status conference concerning this issue is set for April 14, 2010 at 2:00 p.m. The parties may participate

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 15 of 48

04/06/2010 04/07/2010 04/15/2010 04/15/2010
04/19/2010 04/20/2010
04/21/2010

via telephone by providing the court with a telephone number where they can be contacted. The court will initiate the call. Additionally, for the reasons placed on the record at today's proceeding, that aspect of the EEOC's motion 85 seeking coordinated discovery with the AAA arbitration in Jock, et al. v. Sterling Jewelers, Inc. is DENIED. The remaining aspect of the motion 85 seeking bifurcation will be addressed by Judge Arcara. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 3/24/10. (DAZ) (Entered: 03/24/2010)
NOTICE OF ORAL ARGUMENT. Oral Argument as to 85 Motion to Bifurcate (bifurcation issue only) filed by plaintiff is scheduled for 4/15/2010 at 3:00 PM before Hon. Richard J. Arcara. (DJD) (Entered: 04/06/2010)
98 TEXT ORDER : At the parties' request, the April 14, 2010 conference is rescheduled to April 15, 2010 at 12:30 p.m. before Hon. Jeremiah J. McCarthy. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/7/10. (DAZ) (Entered: 04/07/2010)
99 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held re investigative files issue on 4/15/2010. Participants: Nora E. Curtin, Margaret Ann Malloy, Judith Ann Biltekoff for Plaintiff; Gerald L. Maatman Jr. and Scott Patrick Horton for Defendant. (DAZ) (Entered: 04/15/2010)
102 Minute Entry for proceedings held 4/15/2010 before Hon. Richard J. Arcara. Oral Argument is held as to 85 Motion to Bifurcate filed by plaintiff. The Court is advised that all parties are in agreement that this matter needs to be bifurcated, however, at issue is whether punitive damages need to be addressed at stage I.. The Court reserves decision on the bifurcation issues. The Court questions the parties as to whether this matter should be stayed pending resolution of the arbitration. Appearances: Pltf − Margaret Molloy, Nora Curtin and Judith Biltekoff; Deft − Gerald Maatman and Scott Horton. (Court Reporter Yvonne Garrison.) (EAK) Modified on 4/30/2010 (EAK). (Entered: 04/21/2010)
100 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference re disagreement on number and parties to be deposed held on 4/19/2010. Participants: Margaret Ann Malloy for Plaintiff and Gerald Maatman Jr. for Defendant. (DAZ) (Entered: 04/19/2010)
101 TEXT ORDER : As agreed at the April 16 and 19, 2010 proceedings: 1) the parties may serve up to 40 interrogatories and 50 document requests, subject to the right to seek upward modification of these limitations as the case progresses; 2) by April 20, 2010 the EEOC will provide Sterling with the names and addresses of those employees whom it currently intends to call as stage 1 witnesses, and Sterling may thereafter conduct the depositions of these witnesses and any additional stage 1 witnesses to be subsequently identified by the EEOC; 3) the EEOC shall file and serve its motions for a protective order concerning Sterling's Rule 30(b)(6)deposition notice, for leave to participate in the depositions of class members noticed in the pending arbitration, and seeking any related relief on or before April 30, 2010; 4) Sterling's response shall be filed and served on or before May 14, 2010; 5) the EEOC's reply, if any, shall be filed and served on or before May 21, 2010; and 6) oral argument is set for May 26, 2010 at 3:00 p.m. EDT before Hon. Jeremiah J. McCarthy. The parties may participate via telephone by contacting the court with a telephone number where they can be contacted. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/20/10. (DAZ) (Entered: 04/20/2010)
103 MOTION for Protective Order /Motion For Entry Of A Protective Order by Sterling Jewelers, Inc.. (Attachments: # 1 Text of Proposed Order Order, # 2 Exhibit A − Sterling's Proposed Stipulation and Agreed Protective Order, # 3 Exhibit B − EEOCs First Set Of Requests For Production In The WDNY Dated March 23, 2010, # 4 Exhibit C − Correspondence From The EEOC To Sterlings Defense Counsel Dated March 23, 2010 Regarding The EEOCs First Set Of Requests For Production, # 5 Exhibit D − Correspondence From Sterlings Defense Counsel To The EEOC Dated April 6, 2010 In Response To The EEOCs Letter Of March 23, 2010, # 6 Exhibit E − Ruling In Duling, et al. v. Gristedes Operating Corp., et al., 2010 U.S. Dist. LEXIS 31690 (S.D.N.Y. Mar. 30, 2010), # 7 Exhibit F − Declaration Of Gerald L. Maatman, Jr.)(Maatman, Gerald) (Entered: 04/21/2010)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 16 of 48

04/23/2010
04/27/2010 04/28/2010
04/28/2010
04/28/2010
04/30/2010 04/30/2010
04/30/2010 04/30/2010 05/10/2010 05/10/2010

104 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/15/10, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Karen J. Bush, Telephone number (585) 613−4312. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/14/2010. Redacted Transcript Deadline set for 5/24/2010. Release of Transcript Restriction set for 7/22/2010. (DZ) (Entered: 04/23/2010)
105 TEXT ORDER : The EEOC's response to Sterling's motion for entry of a protective order 103 shall be served and filed on or before May 10, 2010; a reply, if any, shall be served and filed on or before May 17, 2010, after which time the motion 103 will be taken under advisement without oral argument. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/27/10. (DAZ) (Entered: 04/27/2010)
106 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2/5/10, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number (843) 723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/19/2010. Redacted Transcript Deadline set for 5/31/2010. Release of Transcript Restriction set for 7/27/2010. (DZ) (Entered: 04/28/2010)
107 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/1/10, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number (843) 723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/19/2010. Redacted Transcript Deadline set for 5/31/2010. Release of Transcript Restriction set for 7/27/2010. (DZ) (Entered: 04/28/2010)
108 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/24/10, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number (843) 723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/19/2010. Redacted Transcript Deadline set for 5/31/2010. Release of Transcript Restriction set for 7/27/2010. (DZ) (Entered: 04/28/2010)
E−Filing Notification: 102 Minute Entry filing date corrected. (EAK) (Entered: 04/30/2010)
109 MOTION for Protective Order Prohibiting Certain Discovery and Allowing EEOC to Attend Depositions of Its Witnesses by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19)(Malloy, Margaret) (Entered: 04/30/2010)
110 MEMORANDUM in Support re 109 MOTION for Protective Order Prohibiting Certain Discovery and Allowing EEOC to Attend Depositions of Its Witnesses filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 04/30/2010)
111 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 109 MOTION for Protective Order Prohibiting Certain Discovery and Allowing EEOC to Attend Depositions of Its Witnesses, 110 Memorandum in Support of Motion (Malloy, Margaret) (Entered: 04/30/2010)
112 RESPONSE to Motion re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 05/10/2010)
113 DECLARATION re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 EEOC's Proposal, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Malloy, Margaret) (Entered: 05/10/2010)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 17 of 48

05/10/2010 05/11/2010 05/11/2010 05/14/2010
05/14/2010 05/17/2010
05/17/2010 05/21/2010 05/25/2010

114 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 113 Declaration, 112 Response to Motion for a Protective Order (Malloy, Margaret) (Entered: 05/10/2010)
115 NOTICE of Appearance by Lawrence Mays on behalf of Equal Employment Opportunity Commission (Mays, Lawrence) (Entered: 05/11/2010)
116 CERTIFICATE of Counsel re 115 Notice of Appearance Certificate of Service by Lawrence Mays on behalf of Equal Employment Opportunity Commission (Mays, Lawrence) (Entered: 05/11/2010)
117 RESPONSE to Motion re 109 MOTION for Protective Order Prohibiting Certain Discovery and Allowing EEOC to Attend Depositions of Its Witnesses / Defendant's Response To The EEOCS Motion For Protection filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1 − Declaration Of Gerald L. Maatman, Jr., # 2 Exhibit A − Letter To Magistrate Judge McCarthy Dated March 19, 2010, # 3 Exhibit B − Letter To Magistrate Judge McCarthy Dated April 7, 2010, # 4 Exhibit C − AAA Order Of March 31, 2010, # 5 Exhibit D − EEOCs Amended Privilege Log Produced On April 30, 2010, # 6 Exhibit E − Defendants First Set Of Requests For Production Of Documents To Plaintiffs, # 7 Exhibit F − AAA Protective Order Dated January 8, 2010)(Maatman, Gerald) (Entered: 05/14/2010)
118 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 117 Response to Motion,,, /Compendium Of Unreported Cases Cited In Defendant Sterling Jeweler Inc.'s Response To The EEOC's Motion For Protection (Tabs A Through H) filed by Sterling Jewelers, Inc.. (Attachments: # 1 Compendium Of Unreported Cases Cited In Defendant Sterling Jeweler Inc.'s Response To The EEOC's Motion For Protection (Tabs I Through O), # 2 Compendium Of Unreported Cases Cited In Defendant Sterling Jeweler Inc.'s Response To The EEOC's Motion For Protection (Tabs P Through W))(Maatman, Gerald) (Entered: 05/14/2010)
119 REPLY/RESPONSE to re 112 Response to Motion, 103 MOTION for Protective Order /Motion For Entry Of A Protective Order / Defendant's Reply Brief in Support of its Motion for Entry of a Protective Order filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1 − Declaration Of Gerald L. Maatman, Jr. & Exhibit A To Maatman Declaration − Letter From Maatman To Malloy, Counsel For The EEOC, Dated 5/13/10, With A Redline And A Clean Version Of A Proposed Protective Order, # 2 Exhibit 2 − Sterlings Compromise Proposed Confidentiality Stipulation And Order, # 3 Exhibit 3 − Sterlings Compromise Proposed Confidentiality Stipulation And Order, # 4 Exhibit 4 − Protective Order Signed By Magistrate Judge Jeremiah J. McCarthy In Bistis v. Am. Precision Indus. Inc., Civil Case No. 1:09−CV−247 (W.D.N.Y.), # 5 Exhibit 5 − Protective Order Signed By Magistrate Judge Jeremiah J. McCarthy In N. Forest Development v. Walden Avenue Realty Assocs., LLC, Civil Case No. 06−CV−00378 A(JJM) (W.D.N.Y.), # 6 Exhibit 6 − Protective Order Signed By United States Judge Richard J. Arcara Jeremiah J. McCarthy in Field v. Tonawanda City Sch. Dist., Civ. No. 07−CV−0241 A(F) (W.D.N.Y.), # 7 Exhibit 7 − Sample Discovery Confidentiality Order Adopted By The United States District Court For The District Of New Jersey)(Maatman, Gerald) (Entered: 05/17/2010)
120 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 119 Reply/Response,,,,, DEFENDANTS COMPENDIUM OF UNREPORTED CASES CITED IN DEFENDANT STERLING JEWELERS INC.S REPLY IN SUPPORT OF ITS MOTION FOR ENTRY OF A PROTECTIVE ORDER − TABS A THROUGH E filed by Sterling Jewelers, Inc.. (Attachments: # 1 DEFENDANTS COMPENDIUM OF UNREPORTED CASES − TABS F THROUGH J, # 2 DEFENDANTS COMPENDIUM OF UNREPORTED CASES − TABS K THROUGH O)(Maatman, Gerald) (Entered: 05/17/2010)
121 REPLY/RESPONSE to re 109 MOTION for Protective Order Prohibiting Certain Discovery and Allowing EEOC to Attend Depositions of Its Witnesses filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 05/21/2010)
122 DECLARATION signed by Jacqueline A. Berrien re 109 MOTION for Protective Order Prohibiting Certain Discovery and Allowing EEOC to Attend Depositions of Its Witnesses filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 18 of 48

05/26/2010 05/26/2010 06/08/2010 06/08/2010 06/08/2010 06/08/2010
06/16/2010 06/18/2010
06/18/2010

Service)(Malloy, Margaret) (Entered: 05/25/2010)
123 TEXT ORDER : At defendant's request, today's oral argument is adjourned to June 8, 2010 at 11:00 a.m. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/26/10. (DAZ) (Entered: 05/26/2010)
124 NOTICE of Appearance by Jeffrey A. Stern on behalf of Equal Employment Opportunity Commission (Stern, Jeffrey) (Entered: 05/26/2010)
125 MOTION Motion to Intervene for Limited Purpose of Inclusion in Confidentiality Order to be Entered re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order by Arbitration Claimants.(Mezzetti, Lisa) (Entered: 06/08/2010)
126 MEMORANDUM IN SUPPORT re 125 MOTION Motion to Intervene for Limited Purpose of Inclusion in Confidentiality Order to be Entered re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order byArbitration Claimants. (Attachments: # 1 Exhibit Exhibit1: EEOC Complaint, # 2 Exhibit Exhibit 2: Proposed Order, # 3 Exhibit Exhibit 3: First Amended Arbitration Complaint, # 4 Exhibit Exhibit 4: Order Accepting Amended Case Management Plan, # 5 Exhibit Exhibit 5: Protective Order, # 6 Certificate of Service)(Mezzetti, Lisa) (Entered: 06/08/2010)
127 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument held on 6/8/2010. Participants: Margaret Ann Malloy (via telephone) and Judith Ann Biltekoff for plaintiff; Gerald L. Maatman, Jr. (via telephone) for defendant. (DAZ) (Entered: 06/08/2010)
128 TEXT ORDER : In accordance with today's oral argument, the EEOC may submit a sur−reply, not to exceed 10 pages, to Sterling's motion for a protective order 103 on or before June 18, 2010. Sterling's and the EEOC's responses to the arbitration claimants' motion to intervene 125 shall be served and filed on or before June 18, 2010; the arbitration claimants' reply, if any, shall be served and filed on or before June 28, 2010; and oral argument of the motion to intervene 125 and Sterling's motion for a protective order 103 is set for July 9, 2010 at 10:00 a.m. before Hon. Jeremiah J. McCarthy. Counsel for the parties and the arbitration claimants may participate via telephone by providing the court with telephone numbers where they can be contacted. The court will initiate the call. If the motion to intervene 125 is granted, counsel for the arbitration claimants will be required to obtain local counsel and to become admitted (pro hac vice or otherwise) in this District, if necessary. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/8/10. (A copy of this order has been e−mailed to lmezzetti@cohenmilstein.com, jsellers@cohenmilstein.com, jyang@cohenmilstein.com).(DAZ) (Entered: 06/08/2010)
129 TEXT ORDER : At the arbitration claimants' request and with the consent of the parties, the July 9, 2010 oral argument is rescheduled to 11:00 a.m. SO ORDERED.Issued by Hon. Jeremiah J. McCarthy on 6/16/10. (DAZ) (Entered: 06/16/2010)
130 RESPONSE to Motion re 125 MOTION Motion to Intervene for Limited Purpose of Inclusion in Confidentiality Order to be Entered re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A Case Management Order Re Class Certification In Jock, et al. v. Sterling Jewelers Inc., Claim No. 11 160 00655 08 (American Arbitration Association Oct. 29, 2009), # 2 Exhibit B Order Re Protective Order Regarding Exchange Of Confidential Information In Jock, et al. v. Sterling Jewelers Inc., Claim No. 11 160 0644 09 (American Arbitration Association November 24, 2009), # 3 Exhibit C Protective Order Regarding Exchange Of Confidential Information In Jock, et al. v. Sterling Jewelers Inc., Claim No. 11 160 0644 09 (American Arbitration Association January 8, 2010), # 4 Exhibit D Claimants First Requests For Production Of Documents To Respondent (Dated November 10, 2009), # 5 Exhibit E Declaration Of Gerald L. Maatman, Jr., # 6 Exhibit F EEOCs First Set Of Requests For Production Of Documents To Respondent (Dated March 23, 2010), # 7 Exhibit G EEOCs Second Set Of Requests For Production Of Documents To Respondent (Dated April 30, 2010))(Maatman, Gerald) (Entered: 06/18/2010)
131 DECLARATION signed by Margaret A. Malloy re 125 MOTION Motion to Intervene for Limited Purpose of Inclusion in Confidentiality Order to be Entered re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order, 119

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 19 of 48

06/28/2010 06/28/2010
07/06/2010 07/06/2010 07/07/2010 07/07/2010 07/08/2010 07/09/2010
07/15/2010 07/15/2010 07/27/2010 07/28/2010

Reply/Response,,,,, filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1: EEOC's 1st Doc Requests, # 2 Exhibit 2−Arb Clmts' 1st Doc Requests, # 3 Exhibit 3−Sterling Resp EEOC's 1st Doc Requests, # 4 Exhibit 4 − EEOC Letter to Sterling, 5/25/10, # 5 Exhibit 5 − EEOC Rev Prop Confid Order, # 6 Exhibit 6 − EEOC's 2nd Doc Requests, # 7 Exhibit 7 − Sterling's Resp EEOC's 2nd Doc Requests, # 8 Exhibit 8 − Sterling Email to EEOC, May 18, 2010, # 9 Exhibit 9 − Order in Duling v. Gristede's, # 10 Exhibit 10 − Order in EEOC v. Grace Church, # 11 Exhibit 11 − Order in EEOC v. Bloomberg, # 12 Exhibit 12 − Order in EEOC v. Eden Park, # 13 Exhibit 13 − Order in White Cap Constr., # 14 Certificate of Service)(Malloy, Margaret) (Entered: 06/18/2010)
132 REPLY/RESPONSE to re 109 MOTION for Protective Order Prohibiting Certain Discovery and Allowing EEOC to Attend Depositions of Its Witnesses Letter re. Recent Court Decision filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 06/28/2010)
133 REPLY to Response to Motion re 125 MOTION Motion to Intervene for Limited Purpose of Inclusion in Confidentiality Order to be Entered re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order filed by Arbitration Claimants. (Attachments: # 1 Exhibit 1 − RESOLVE Arbitration Agreement, # 2 Exhibit 2 − Jean v. The Stanley Works (N.D. Ohio 2007), # 3 Exhibit 3 − EEOC Guidance on Non−Waivable Employee Rights, # 4 Exhibit 4 − Order Re: Protective Order Regarding Exchange of Confidential Info. (Nov. 24, 2009), # 5 Exhibit 5 − Bell v. Lockheed Martin Corp. (D.N.J. 2010))(Mezzetti, Lisa) (Entered: 06/28/2010)
134 STATUS REPORT /Letter Submission To The Honorable Judge Jeremiah J. McCarthy Regarding Developments In The AAA Proceeding by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 07/06/2010)
E−Filing Notification: 134 STATUS REPORT /Letter Submission To The Judge McCarthy Regarding Developments In The AAA Proceeding by Sterling Jewelers, Inc.. (Maatman, Gerald) **Item filed without proof of service** (DZ) (Entered: 07/07/2010)
135 CERTIFICATE OF SERVICE by Sterling Jewelers, Inc. re 134 Status Report, E−Filing Notification /Letter Submission To The Honorable Judge Jeremiah J. McCarthy Regarding Developments In The AAA Proceeding (Maatman, Gerald) (Entered: 07/07/2010)
136 STATUS REPORT by Arbitration Claimants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Service)(Mezzetti, Lisa) (Entered: 07/07/2010)
137 REPLY/RESPONSE to re 134 Status Report filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 07/08/2010)
138 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument re: MOTION Motion to Intervene for Limited Purpose of Inclusion in Confidentiality Order to be Entered re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order by Arbitration Claimants held on 7/9/2010. ORDER TO FOLLOW. Joseph Sellers for Arbitration Claimants (local counsel as observer, Don Eppes) −− both in person. Margaret Malloy for Pltf (in person). Gerald Maatman, Jr. for Deft (via phone). (LL) (Entered: 07/09/2010)
139 DECISION AND ORDER granting in part and denying in part 109 Motion for Protective Order; granting 125 arbitration claimants' motion to intervene. Signed by Hon. Jeremiah J. McCarthy on 7/15/10. (DAZ) (Entered: 07/15/2010)
CALENDAR EVENT: Status Conference set for 8/5/2010 at 11:00 AM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 07/15/2010)
140 NOTICE of Appearance by Lisa T. Sofferin on behalf of Arbitration Claimants (Sofferin, Lisa) (Entered: 07/27/2010)
141 MOTION for Leave to Appear Pro Hac Vice by Arbitration Claimants.(Sofferin, Lisa) (Entered: 07/28/2010)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 20 of 48

07/28/2010 07/29/2010 07/29/2010 07/29/2010
07/30/2010
08/02/2010 08/02/2010
08/02/2010 08/03/2010
08/03/2010 08/04/2010 08/04/2010 08/05/2010 08/05/2010

142 MOTION for Leave to Appear Pro Hac Vice by Arbitration Claimants.(Sofferin, Lisa) (Entered: 07/28/2010)
Remark − Confirmed admission to the District of Columbia State Bar for attorneys Joseph M. Sellers and Jenny R. Yang. (DZ) (Entered: 07/29/2010)
143 ORDER granting [141, 142] Motions for Leave to Appear (Jenny R. Yang, Esq. and Joseph M. Sellers, Esq.) pro hac vice . Signed by Hon. Jeremiah J. McCarthy on 7/29/10. (DAZ) (Entered: 07/29/2010)
144 OBJECTIONS to Order on Motion for Protective Order, Order on Motion for Miscellaneous Relief 139 /Defendant's Limited Objections Pursuant To Rule 72 To Magistrate Judge McCarthy's Decision And Order filed by Defendant Sterling Jewelers, Inc... (Attachments: # 1 Exhibit A − July 26, 2010 Memorandum And Order In Jock, et al. v. Sterling Jewelers Inc., No. 08−Civ−2875 (JSR), 2010 U.S. Dist. LEXIS 75064 (S.D.N.Y. July 26, 2010), # 2 Compendium Of Unreported Cases Cited In Defendant's Limited Objections Pursuant To Rule 72 To Magistrate Judge McCarthy's Decision And Order)(Maatman, Gerald) (Entered: 07/29/2010)
145 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 7/9/10, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Michelle L. McLaughlin, Telephone number (716) 332−3560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/20/2010. Redacted Transcript Deadline set for 8/30/2010. Release of Transcript Restriction set for 10/28/2010. (DZ) (Entered: 08/02/2010)
146 OBJECTIONS to Order on Motion for Protective Order, Order on Motion for Miscellaneous Relief 139 filed by Plaintiff Equal Employment Opportunity Commission.. (Attachments: # 1 Certificate of Service)(Sanghvi, Ami) (Entered: 08/02/2010)
E−Filing Notification: Username and signature do not match (refer to Administrative Procedures Guide Section 1−3c). Action required: re−file document using same signature and password and file updated proof of service. 146 OBJECTIONS to Order on Motion for Protective Order, Order on Motion for Miscellaneous Relief 139 filed by Plaintiff Equal Employment Opportunity Commission.. (Attachments: # 1 Certificate of Service)(Sanghvi, Ami) (DZ) (Entered: 08/03/2010)
Pro Hac Vice fee paid for Josseph M. Sellers, Jenny R. Yang: $ 150.00, receipt number 19383 (DZ) (Entered: 08/03/2010)
147 TEXT ORDER re 144 Objections filed by defendants and 146 Objections filed by plaintiff to 139 Decision and Order dated 7/15/2010 of Magistrate Judge Jeremiah J. McCarthy. Response papers shall be filed on or before 8/17/2010. Any reply papers shall be filed on or before 8/24/2010. Oral Argument is scheduled for 9/2/2010 at 09:00 AM before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon. Richard J. Arcara on August 3, 2010. (DJD) (Entered: 08/03/2010)
148 OBJECTIONS to Order on Motion for Protective Order, Order on Motion for Miscellaneous Relief 139 filed by Plaintiff Equal Employment Opportunity Commission.. (Attachments: # 1 Certificate of Service)(Sanghvi, Ami) (Entered: 08/03/2010)
149 REPLY/RESPONSE to re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order re: EEOC's 8/4/10 letter filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 08/04/2010)
E−Filing Notification: 149 REPLY/RESPONSE (Maatman, Gerald) **item filed without proof of service** (DZ) (Entered: 08/05/2010)
150 CERTIFICATE OF SERVICE by Sterling Jewelers, Inc. re 149 Reply/Response /Letter Submission to the Honorable Judge Jeremiah J. McCarthy Regarding Sterling's Motion filed on April 21, 2010 (Maatman, Gerald) (Entered: 08/05/2010)
151 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 8/5/2010. Text Order to follow. Participants: Margaret Ann

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 21 of 48

08/05/2010
08/06/2010 08/13/2010 08/16/2010
08/17/2010 08/17/2010
08/17/2010 08/17/2010 08/17/2010 08/17/2010
08/17/2010 08/18/2010

Malloy for Plaintiff; Gerald L. Maatman, Jr. for Defendant; Joseph M. Sellers, Jenny R. Yang and Lisa T. Sofferin for Arbitration Claimants. (DAZ) (Entered: 08/05/2010)
152 TEXT ORDER : In accordance with today's conference, on or before August 17, 2010, the parties, including the arbitration claimants, shall file the most current version of the proposed protective order, along with letter briefs (not to exceed 5 pages, single spaced) addressing the areas that remain in dispute concerning Sterling's motion for a protective order 103 . As to each disputed provision, the parties and arbitration claimants shall indicate the language which they wish to include. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/5/10. (DAZ) (Entered: 08/05/2010)
153 NOTICE of Appearance by Natasha L. Abel on behalf of Equal Employment Opportunity Commission (Abel, Natasha) (Entered: 08/06/2010)
154 NOTICE of Appearance by Jennifer Lynn Hope on behalf of Equal Employment Opportunity Commission (Hope, Jennifer) (Entered: 08/13/2010)
155 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/15/10, before Judge Richard J. Arcara. Court Reporter/Transcriber Yvonne M. Garrison, Telephone number (716) 847−2477. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/6/2010. Redacted Transcript Deadline set for 9/16/2010. Release of Transcript Restriction set for 11/15/2010. (DZ) (Entered: 08/16/2010)
156 RESPONSE to Motion re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order Supplemental Letter Brief filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 08/17/2010)
157 REPLY/RESPONSE to re 148 Objections −− non−motion /Defendant's Response To Plaintiff EEOCs Objections In Part To The July 15, 2010 Order Of Magistrate Judge McCarthy filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − July 26, 2010 Memorandum And Order In Jock, et al. v. Sterling, # 2 Exhibit B − August 9, 2010 Memorandum And Order In Jock, et al. v. Sterling Jewelers, # 3 Compendium Of Unreported Cases Cited In Defendants Response To Plaintiff EEOCs Objection In Part To The 7/15/10 Order Of Magistrate Judge McCarthy)(Maatman, Gerald) (Entered: 08/17/2010)
158 RESPONSE to Motion re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order Supplemental Letter Brief filed by Sterling Jewelers, Inc.. (Attachments: # 1 Sterling's Compromise Proposed Confidentiality Stipulation And Order)(Maatman, Gerald) (Entered: 08/17/2010)
159 REPLY/RESPONSE to re 144 Objections −− non−motion,, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 08/17/2010)
160 RESPONSE to Motion re 103 MOTION for Protective Order /Motion For Entry Of A Protective Order (Supplemental Letter Brief) filed by Arbitration Claimants. (Attachments: # 1 Certificate of Service)(Sellers, Joseph) (Entered: 08/17/2010)
161 REPLY/RESPONSE to re 144 Objections −− non−motion,, filed by Arbitration Claimants. (Attachments: # 1 Exhibit 1 − First Amended Class Action Arbitration Complaint, # 2 Exhibit 2 − Order re: Protective Order Regarding Exchange of Confidential Information, # 3 Exhibit 3 − Jean v. The Stanley Works (Order), # 4 Exhibit 4 − Guidance, # 5 Certificate of Service)(Sellers, Joseph) (Entered: 08/17/2010)
E−Filing Notification: 158 RESPONSE to Motion re 103 MOTION for Protective Order (Maatman, Gerald) **Item filed without proof of service** (DZ) (Entered: 08/18/2010)
162 CERTIFICATE OF SERVICE by Sterling Jewelers, Inc. re 158 Response to Motion, /Supplemental Letter Submission To The Honorable Judge Jeremiah J. McCarthy (Maatman, Gerald) (Entered: 08/18/2010)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 22 of 48

08/24/2010 08/24/2010
09/01/2010 09/03/2010 09/09/2010 10/15/2010 10/19/2010 04/25/2011 04/25/2011 05/06/2011 05/09/2011
05/17/2011

163 REPLY/RESPONSE to re 146 Objections −− non−motion Reply Memorandum of Law in Further Support of EEOCs Objection in Part to the July 15, 2010 Order of Magistrate Judge McCarthy filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Sanghvi, Ami) (Entered: 08/24/2010)
164 REPLY/RESPONSE to re 159 Reply/Response, 161 Reply/Response, /Defendant's Reply To The EEOC And Arbitration Claimants' Responses To Defendant's Limited Objections Pursuant To Rule 72 To The Magistrate Judge's Decision And Order filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − July 26, 2010 Memorandum And Order In Jock, et al. v. Sterling Jewelers Inc., # 2 Exhibit B − August 9, 2010 Memorandum And Order In Jock, et al. v. Sterling Jewelers Inc., # 3 Certificate of Service, # 4 Compendium of Unreported Cases Cited in Defendant's Reply)(Maatman, Gerald) (Entered: 08/24/2010)
165 TEXT ORDER. The 9/2/2010 oral argument is adjourned by the Court as to 144 Objections filed by defendants and 146 Objections filed by plaintiff to 139 Decision and Order dated 7/15/2010 of Magistrate Judge Jeremiah J. McCarthy. The oral argument is adjourned to 10/15/2010 at 02:00 PM before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon. Richard J. Arcara on September 1, 2010. (DJD) (Entered: 09/01/2010)
166 MOTION for Hearing re 165 Order, Terminate Hearings, Set/Reset Motion and R&R Deadlines/Hearings,,, / Unopposed Motion For Setting Of A New Hearing Date On The Parties Rule 72 Objections by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration Of Gerald L. Maatman, Jr., # 2 Certificate of Service)(Maatman, Gerald) (Entered: 09/03/2010)
167 TEXT ORDER. Defendant filed 166 Motion for adjournment of the 10/15/2010 oral argument date as to 144 Objections filed by defendants and 146 Objections filed by plaintiff to 139 Decision and Order dated 7/15/2010 of Magistrate Judge Jeremiah J. McCarthy. The motion is granted. Oral Argument is adjourned to 10/19/2010 at 02:00 PM before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon. Richard J. Arcara on September 9, 2010. (DJD) (Entered: 09/09/2010)
168 DECLARATION signed by Margaret A. Malloy re 148 Objections −− non−motion, 159 Reply/Response filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 10/15/2010)
Minute Entry for proceedings held 10/19/2010 before Hon. Richard J. Arcara. Oral Argument is held as to 144 Objections (Appeal) filed by defendants and 146 Objections (Appeal) filed by plaintiff to 139 Decision and Order dated 7/15/2010 of Magistrate Judge Jeremiah J. McCarthy. Appearances: Pltf − Margaret Malloy; Deft − Gerald Maatman, Scott Horton; Arbitration Claimants − Jenny Yang, Donald Eppers (Court Recorder ECRO Elizabeth Knipe.) (DJD) (Entered: 11/29/2010)
169 DECISION AND ORDER granting in part and denying in part 85 Motion to Bifurcate. Signed by Hon. Richard J. Arcara on 4/25/2011. (JMB) (Entered: 04/25/2011)
170 ORDER affirming Magistrate Judge McCarthy;s Decision and Order and denying the parties' objections thereto. Signed by Hon. Richard J. Arcara on 4/25/2011. (JMB) (Entered: 04/25/2011)
171 TEXT ORDER : A status conference is set for May 20, 2011 at 10:00 a.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/6/11. (DAZ) (Entered: 05/06/2011)
172 TEXT ORDER : The status conference set for May 20, 2011 at 10:00 a.m. in Equal Employment Opportunity Commission v. Sterling Jewelers, Inc., (8−cv−706) is rescheduled to May 17, 2011 at 11:30 a.m. Oral argument in Equal Employment Opportunity Commission v. Sterling Jewelers Inc. (11−mc−28) is also set for this time. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/9/11. (DAZ) (Entered: 05/09/2011)
173 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 5/17/2011 to discuss discovery issues/ motion for confidentiality

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 23 of 48

05/17/2011
05/17/2011 05/23/2011 05/23/2011 05/23/2011 05/23/2011 05/26/2011 06/03/2011
06/03/2011
06/16/2011 06/23/2011 06/23/2011
06/24/2011

order. Written decision to follow. A further status conference is set for 6/23/11 at 3:00 p.m. Apearances: Pltfs − Margaret Ann Malloy, Judith Ann Biltekoff, Ami T. Sanghvi; Defts − Scott Patrick Horton, Gerald L. Maatman, Jr., Stephen S. Zashin (via telephone); Intervenors − Joseph M. Sellers. (DAZ) (Entered: 05/17/2011)
174 TEXT ORDER: In accordance with today's proceeding, a conference is set for June 23, 2011 at 3:00 p.m. On or before June 16, 2011, the parties shall confer and submit (joint or individual) proposed case management orders and letters addressing the issues, if any, they wish to address at the conference. The parties may participate in the June 23 conference via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 5/17/11. (DAZ) (Entered: 05/17/2011)
Set/Reset Hearings: Status Conference set for 6/23/2011 03:00 PM before Hon. Jeremiah J. McCarthy. (DZ) (Entered: 05/18/2011)
175 MOTION for Reconsideration re 169 Order on Motion to Bifurcate by Equal Employment Opportunity Commission.(Malloy, Margaret) (Entered: 05/23/2011)
176 MEMORANDUM in Support re 175 MOTION for Reconsideration re 169 Order on Motion to Bifurcate filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 05/23/2011)
177 AFFIDAVIT in Support re 175 MOTION for Reconsideration re 169 Order on Motion to Bifurcate filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 05/23/2011)
178 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 175 MOTION for Reconsideration re 169 Order on Motion to Bifurcate, 176 Memorandum in Support of Motion, 177 Affidavit in Support of Motion (Malloy, Margaret) (Entered: 05/23/2011)
179 TEXT ORDER re 175 MOTION for Reconsideration filed by Equal Employment Opportunity Commission. Defendant to file a response by 6/3/2011. Signed by Hon. Richard J. Arcara on 5/26/2011. (JMB) (Entered: 05/26/2011)
180 RESPONSE to Motion re 175 MOTION for Reconsideration re 169 Order on Motion to Bifurcate (Response to EEOC's Motion for Clarification or Reconsideration of the Court's April 25, 2011 Order Concerning Bifurcation) filed by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration Of Gerald L. Maatman, Jr., # 2 Exhibit A To Maatman Declaration − Plaintiff EEOCs Initial Disclosures Pursuant To Rule 26(a)(1), # 3 Exhibit B To Maatman Declaration − EEOCs Responses To Sterlings First Set Of Interrogatories)(Maatman, Gerald) (Entered: 06/03/2011)
181 CONTINUATION OF EXHIBITS to 180 Response to Motion,, (Compendium Of Unreported Cases Cited In Defendant's Response To The EEOC's Motion For Clarification (Tabs A − D)). (Attachments: # 1 Compendium Of Unreported Cases Cited In Defendant's Response To The EEOC's Motion For Clarification (Tabs E − H))(Maatman, Gerald) (Entered: 06/03/2011)
182 TEXT ORDER denying 175 Motion for Reconsideration. Signed by Hon. Richard J. Arcara on 6/16/2011. (JMB) (Entered: 06/16/2011)
183 DECISION AND ORDER granting in part and denying in part 103 Motion for Protective Order. Signed by Hon. Jeremiah J. McCarthy on 6/23/11. (DAZ) (Entered: 06/23/2011)
184 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 6/23/2011 to set Case Management Order deadlines. Due to unresolved issues, deadlines not set. Further submissions to be made addressing these issues to the court. Appearances: Margaret Ann Malloy − Plaintiff; Gerald L. Maatman, Jr. − Defendant; Joseph M. Sellers − Arbitration Claimants. (DAZ) (Entered: 06/24/2011)
185 TEXT ORDER : In accordance with yesterday's proceeding, on or before July 15, 2011 the parties shall file and serve briefs addressing whether the EEOC's individual claims of unlawful discrimination under Section 706 of Title VII of the Civil Rights Act of 1964 should also be bifurcated. The parties' briefs may also address any

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 24 of 48

06/30/2011
07/06/2011 07/07/2011 07/07/2011 07/15/2011 07/15/2011 07/15/2011 07/15/2011 07/19/2011 07/20/2011 07/20/2011 07/27/2011 07/27/2011

discovery issues bearing directly on bifurcation. Entry of a Case Management Order will be deferred until this issue is resolved. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/24/11. (DAZ) (Entered: 06/24/2011)
186 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/23/11, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, Telephone number (585) 613−4310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2011. Redacted Transcript Deadline set for 8/1/2011. Release of Transcript Restriction set for 9/28/2011. (DZ) (Entered: 07/01/2011)
187 Proposed MOTION for Protective Order Pursuant to the Court's June 23, 2011 Order by Sterling Jewelers, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Confidentiality Stipulation And Order)(Maatman, Gerald) (Entered: 07/06/2011)
188 RESPONSE to Motion re 187 Proposed MOTION for Protective Order Pursuant to the Court's June 23, 2011 Order filed by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order EEOC's Version, # 2 Text of Proposed Order Redlined Comparison, # 3 Certificate of Service)(Malloy, Margaret) (Entered: 07/07/2011)
189 RESPONSE to Motion re 187 Proposed MOTION for Protective Order Pursuant to the Court's June 23, 2011 Order filed by Arbitration Claimants. (Sellers, Joseph) (Entered: 07/07/2011)
190 TEXT ORDER : Defendant's response to the objections [188, 189] to the proposed protective order [187−1] shall be served and filed by July 22, 2011, after which time the proposed protective order will be taken under advisement without further oral argument unless deemed necessary by the court. SO ORDERED.Issued by Hon. Jeremiah J. McCarthy on 7/15/11. (DAZ) (Entered: 07/15/2011)
191 MEMORANDUM/BRIEF re 184 Terminate Hearings, Status Conference,, 185 Order,, [Letter Brief to Magistrate Judge McCarthy] by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1 − June 23, 2011 Transcript of Proceedings Before The Honorable Jeremiah J. McCarthy, U.S. Magistrate Judge)(Maatman, Gerald) (Entered: 07/15/2011)
192 MEMORANDUM in Support re 85 MOTION to Bifurcate and Coordinate to further clarify filed by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of Margaret A. Malloy)(Malloy, Margaret) (Entered: 07/15/2011)
193 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 192 Memorandum in Support of Motion (Malloy, Margaret) (Entered: 07/15/2011)
194 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 192 Memorandum in Support of Motion corrected declaration with exhibits. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 07/19/2011)
195 REPLY/RESPONSE to re 188 Response to Motion, 189 Response to Motion, 190 Order, Set Deadlines/Hearings,, Pursuant to the Court's July 15, 2011 Text Order filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 07/20/2011)
196 TEXT ORDER: At defendant's request, it may submit a letter response, not to exceed 7 pages, to plaintiff's submission concerning the bifurcation of plaintiff's individual claims of unlawful discrimination under Section 706 of Title VII of the Civil Rights Act of 1964 194 by July 27, 2011. Issued by Hon. Jeremiah J. McCarthy on 7/20/11. (LL) (Entered: 07/20/2011)
197 REPLY/RESPONSE to re 194 Amended Document, 196 Text Order, Set Deadlines/Hearings,, 192 Memorandum in Support of Motion [Sterling's Letter Brief in Response to the EEOC's July 15 and 19 Pleadings] filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 07/27/2011)
E−Filing Notification: 197 REPLY/RESPONSE to re 194 Amended Document, 196 Text Order, (Maatman, Gerald) **Item filed without proof of service** (DZ) (Entered: 07/28/2011)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 25 of 48

07/28/2011 10/07/2011 10/07/2011 11/03/2011 11/03/2011
11/07/2011
11/07/2011
11/08/2011 11/08/2011 11/08/2011 11/09/2011

198 CERTIFICATE OF SERVICE by Sterling Jewelers, Inc. re 197 Reply/Response, (Maatman, Gerald) (Entered: 07/28/2011)
199 DECISION AND ORDER: Stage I will not include discovery into the EEOC's Section 706 claims. A status conference with the parties to finalize the deadlines of the Stage I Case Management Order will be held on November 3, 2011 at 11:00 a.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. Signed by Hon. Jeremiah J. McCarthy on 10/7/11. (DAZ) (Entered: 10/07/2011)
200 SUPPLEMENTAL DECISION AND ORDER : Proposed Confidentiality Order 187 is amended as set forth herein. Sterling shall submit a confidentiality order for Judge McCarthy's signature with the modifications set forth herein by October 17, 2011. Signed by Hon. Jeremiah J. McCarthy on 10/7/11. (DAZ) (Entered: 10/07/2011)
201 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Status Conference held on 11/3/2011. Text order to follow. Appearances: Margaret Ann Malloy and Elizabeth Grossman (both via telephone) for Plaintiff; Scott Patrick Horton and Gerald L. Maatman, Jr. for Defendant. (DAZ) (Entered: 11/03/2011)
202 TEXT ORDER : In accordance with today's proceeding, the parties shall confer and submit a mutually agreeable Case Management Order based on the terms agreed to at today's proceeding. If the parties are unable to submit a mutually agreeable Case Management Order, they shall identify the areas of disagreement and their respective positions. On or before November 15, 2011, the parties shall submit letters (not to exceed 10 pages) identifying any pending discovery disputes. A telephonic conference to discuss these discovery issues is set for November 18, 2011 at 2:00 p.m. The parties shall provide the court with telephone numbers where they can be contacted. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 11/3/11. (DAZ) (Entered: 11/03/2011)
203 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11/3/11, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Michelle L. McLaughlin, Telephone number (716) 332−3560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/28/2011. Redacted Transcript Deadline set for 12/8/2011. Release of Transcript Restriction set for 2/6/2012. (DZ) (Entered: 11/07/2011)
204 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5/17/11, before Magistrate Judge McCarthy. Court Reporter/Transcriber Michelle L. McLaughlin, RPR, Telephone number 716−332−3560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/28/2011. Redacted Transcript Deadline set for 12/8/2011. Release of Transcript Restriction set for 2/6/2012. (SG) (Entered: 11/07/2011)
205 MOTION to appear pro hac vice (Daniel B. Klein) ( Filing fee $ 75 receipt number 0209−1484070.) by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of Gerald L. Maatman, Jr. in Support of Pro Hac Vice Motion, # 2 Declaration of Daniel B. Klein)(Maatman, Gerald) (Entered: 11/08/2011)
206 CONFIDENTIALITY ORDER. Signed by Hon. Jeremiah J. McCarthy on 11/8/11. (DAZ) (Entered: 11/09/2011)
E−Filing Notification: 205 MOTION to appear pro hac vice (Daniel B. Klein) ( Filing fee $ 75 receipt number 0209−1484070.) ***Motion papers missing Attorney Oath, civility principles oath, attorney database information form and CM/ECF registration form. When you re−file complete motion, please select motion category but use "APPEAR" event so that you do not pay a second fee.** (DZ) (Entered: 11/09/2011)
207 MOTION for Leave to Appear Pro Hac Vice (Daniel B. Klein) by Sterling Jewelers, Inc.. (Attachments: # 1 Affidavit of Gerald L. Maatman, Jr., # 2 Affidavit of Daniel B. Klein, # 3 Attorney's Oath, # 4 Civility Principles Oath of Office, # 5 Attorney Database Form, # 6 ECF Registration Form)(Maatman, Gerald) (Entered: 11/09/2011)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 26 of 48

11/10/2011 11/14/2011 11/17/2011 11/17/2011 11/28/2011 11/29/2011
12/01/2011 12/20/2011 12/28/2011 12/28/2011
12/28/2011
12/28/2011 12/28/2011

Confirmed admission to the Massachusetts State Bar for attorney Daniel B. Klein (DZ) (Entered: 11/10/2011)
208 TEXT ORDER: The November 18, 2011 conference is adjourned to November 28, 2011 at 2:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. The deadline for the parties' letter submissions 202 is extended November 22, 2011. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 11/14/11. (DAZ) (Entered: 11/14/2011)
209 Stage I Discovery Plan and Case Management Order. Signed by Hon. Jeremiah J. McCarthy on 11/17/11. (DAZ) (Entered: 11/18/2011)
210 ORDER granting 207 Motion for Leave to Appear Pro Hac Vice (Daniel B. Klein, Esq.). Signed by Hon. Jeremiah J. McCarthy on 11/17/11. (DAZ) (Entered: 11/18/2011)
211 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 11/28/2011 re discovery issues. Appearances: Margaret Ann Malloy and Ami T. Sanghvi for Plaintiff; Gerald L. Maatman Jr. for Defendant. (DAZ) (Entered: 11/28/2011)
212 TEXT ORDER : In accordance with yesterday's telephonic conference, the parties shall file and serve motions concerning the pending discovery disputes by December 28, 2011; responses shall be filed and served by January 11, 2012; after which time the motions will be taken under advisement without oral argument unless deemed necessary by the court. In the interim, the parties shall continue to confer in an attempt to narrow the pending discovery disputes. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 11/29/11. (DAZ) (Entered: 11/29/2011)
213 MOTION to Opt Out of ADR by Sterling Jewelers, Inc.. (Attachments: # 1 Declaration of Gerald L. Maatman, Jr. in Support of Motion to Opt Out of ADR)(Maatman, Gerald) (Entered: 12/01/2011)
214 ORDER denying 213 Motion to Opt Out of ADR and setting schedule for selection of mediator and mediation session. Signed by Hon. Richard J. Arcara on 12/20/2011. (JMB) (Entered: 12/20/2011)
215 MOTION to Compel Discovery by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 12/28/2011)
216 MEMORANDUM/BRIEF re 215 MOTION to Compel Discovery by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − EEOCs Responses To Sterlings First Set Of Requests For Production, # 2 Exhibit B − EEOCs Responses To Sterlings First Set Of Interrogatories, # 3 Exhibit C − Transcript From November 3, 2011 Hearing Before Magistrate Judge McCarthy, # 4 Exhibit D − Correspondence To Margaret Malloy Of The EEOC From Gerald L. Maatman, Jr. Dated April 12, 2011, # 5 Exhibit E − Correspondence To Gerald L. Maatman, Jr. From Margaret Malloy Dated June 15, 2011)(Maatman, Gerald) (Entered: 12/28/2011)
217 AFFIDAVIT in Support re 216 Memorandum/Brief,, 215 MOTION to Compel Discovery (Affidavit and Certification of Compliance of Gerald L. Maatman, Jr.) by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1 To Maatman Affidavit Correspondence To Margaret Malloy Of The EEOC From Gerald L. Maatman, Jr. Dated April 6, 2010, # 2 Exhibit 2 To Maatman Affidavit Correspondence To Margaret Malloy Of The EEOC From Gerald L. Maatman, Jr. Dated July 28, 2010, # 3 Exhibit 3 To Maatman Affidavit Correspondence To Margaret Malloy Of The EEOC From Gerald L. Maatman, Jr. Dated April 12, 2011, # 4 Exhibit 4 To Maatman Affidavit Correspondence To Gerald L. Maatman, Jr. From Margaret Malloy Dated June 15, 2011)(Maatman, Gerald) (Entered: 12/28/2011)
218 First MOTION to Compel Sterling Jewelers to provide discovery responses by Equal Employment Opportunity Commission.(Malloy, Margaret) (Entered: 12/28/2011)
219 DECLARATION signed by Margaret A. Malloy re 218 First MOTION to Compel Sterling Jewelers to provide discovery responses filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Sterling 26(a) disclosures, # 2 Exhibit EEOC 1st Requests for Production, # 3 Exhibit EEOC 2d RFPs, # 4 Exhibit EEOC 1st Interrogatories, # 5

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 27 of 48

12/28/2011 12/28/2011 12/28/2011 12/29/2011 01/11/2012
01/11/2012 01/11/2012

Exhibit Sterling Response 1st RFPs, # 6 Exhibit EEOC email to Sterling, # 7 Exhibit Sterling to EEOC correspondence, # 8 Exhibit Sterling Response EEOC 2d RFPs, # 9 Exhibit Sterling Response EEOC 1st Interrogatories, # 10 Exhibit EEOC to Sterling correspondence, # 11 Exhibit Sterling to EEOC correspondence, # 12 Exhibit EEOC to Sterling Correspondence, # 13 Exhibit EEOC to Sterling correspondence, # 14 Exhibit EEOC to Sterling correspondence, # 15 Exhibit EEOC to Judge McCarthy, # 16 Exhibit Sterling to Judge McCarthy, # 17 Exhibit EEOC to Judge McCarthy, # 18 Exhibit EEOC to Sterling correspondence, # 19 Exhibit Sterling to EEOC correspondenc, # 20 Exhibit EEOC to Sterling correspondence, # 21 Exhibit EEOC to Sterling correspondence, # 22 Exhibit redacted documents (submitted in camera), # 23 Exhibit Duling court order)(Malloy, Margaret) (Entered: 12/28/2011)
220 MEMORANDUM in Support re 218 First MOTION to Compel Sterling Jewelers to provide discovery responses filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 12/28/2011)
221 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 220 Memorandum in Support of Motion, 219 Declaration,,,,, 218 First MOTION to Compel Sterling Jewelers to provide discovery responses (Malloy, Margaret) (Entered: 12/28/2011)
E−Filing Notification: 217 AFFIDAVIT in Support re 216 Memorandum/Brief,, 215 MOTION to Compel Discovery (Affidavit and Certification of Compliance of Gerald L. Maatman, Jr.) by Sterling Jewelers, Inc.. **AFFIDAVIT to be re−filed as notary signature and commission information missing; updated proof of service required.(DZ) (Entered: 12/29/2011)
222 AFFIDAVIT in Support re 217 Affidavit in Support,, 216 Memorandum/Brief,, 215 MOTION to Compel Discovery, E−Filing Notification, (Affidavit and Certification of Compliance of Gerald L. Maatman, Jr. notarized) by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Maatman, Gerald) (Entered: 12/29/2011)
223 MEMORANDUM IN OPPOSITION re 218 First MOTION to Compel Sterling Jewelers to provide discovery responses by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1 − Correspondence To Gerald L. Maatman, Jr. From Margaret Malloy Dated May 12, 2011, # 2 Exhibit 2 − Correspondence To Margaret Malloy Of The EEOC From Gerald L. Maatman, Jr. Dated June 21, 2011, # 3 Exhibit 3 − Declaration Of Michael D. Lynch, # 4 Exhibit 4 − Declaration Of Gerald L. Maatman, Jr.)(Maatman, Gerald) (Entered: 01/11/2012)
224 MEMORANDUM in Opposition re 215 MOTION to Compel Discovery filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 01/11/2012)
225 DECLARATION re 215 MOTION to Compel Discovery filed by Equal Employment Opportunity Commission in Opposition to Sterling's Motion filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Mediation Agreements, # 2 Exhibit EEOC 26(a) disclosures, # 3 Exhibit Sterling's RFPs, # 4 Exhibit Sterling's Interrogatories, # 5 Exhibit 2/11/10 corresp. from EEOC to Sterling, # 6 Exhibit 2/24/10 corresp. from Sterling to EEOC, # 7 Exhibit 3/3/10 corresp. from EEOC to MJ McCarthy, # 8 Exhibit 3/5/10 corresp. from Sterling to MJ McCarthy, # 9 Exhibit 3/4/10 corresp. from EEOC to Sterling, # 10 Exhibit 3/9/10 corresp. from Sterling to EEOC, # 11 Exhibit EEOC priv. log, # 12 Exhibit 3/23/10 corresp. from EEOC to Sterling, # 13 Exhibit 3/17/10 corresp. from EEOC to MJ McCarthy, # 14 Exhibit 3/19/10 corresp. from Sterling to McCarthy, # 15 Exhibit 4/6/10 corresp. from Sterling to EEOC, # 16 Exhibit 4/7/10 corresp. from EEOC to Sterling, # 17 Exhibit 4/7/10 corresp. from EEOC to MJ McCarthy, # 18 Exhibit 4/7/10 corresp. from Sterling to MJ McCarthy, # 19 Exhibit 4/9/10 corresp. from EEOC to MJ McCarthy, # 20 Exhibit 4/14/10 corresp. from Sterling to MJ McCarthy, # 21 Exhibit 7/30/10 corresp. from EEOC to Sterling, # 22 Exhibit 6/15/11 corresp. from EEOC to Sterling, # 23 Exhibit 11/18/11 corresp. from EEOC to Sterling, # 24 Exhibit 11/22/11 corresp. from EEOC to MJ McCarthy, # 25 Exhibit 11/22/11 corresp. from Sterling to MJ McCarthy, # 26 Exhibit 12/6/11 corresp. from EEOC to Sterling)(Malloy, Margaret) (Entered: 01/11/2012)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 28 of 48

01/11/2012 01/31/2012 01/31/2012 03/06/2012 03/08/2012 03/13/2012
03/16/2012 03/20/2012 03/26/2012 04/16/2012
04/16/2012
04/19/2012

226 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 224 Memorandum in Opposition to Motion, 225 Declaration,,,,,, (Malloy, Margaret) (Entered: 01/11/2012)
227 Stipulation−Selection of Mediator by Equal Employment Opportunity Commission, Sterling Jewelers, Inc.(Malloy, Margaret) (Entered: 01/31/2012)
228 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 227 Stipulation−Selection of Mediator (Malloy, Margaret) (Entered: 01/31/2012)
*** MOTION TERMINATED *** 187 Motion for Protective Order. (DAZ) (Entered: 03/06/2012)
229 MOTION for Protective Order Sealing Exhibit 22 to EEOC's Motion to Compel by Sterling Jewelers, Inc.. (Attachments: # 1 Memorandum in Support of Defendant's Motion for Protective Order Sealing Exhibit 22 to EEOC's Motion to Compel)(Maatman, Gerald) (Entered: 03/08/2012)
230 TEXT ORDER : Responses to defendant's motion for a protective order 229 shall be served and filed by March 26, 2012; defendant's reply, if any, shall be served and filed by April 2, 2012, after which time the motion 229 will be taken under advisement without oral argument unless requested by one of the parties or deemed necessary by the court. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 3/13/12. (DAZ) (Entered: 03/13/2012)
231 Mediation Certification by Mediator Hunter Hughes. (JEC) (Entered: 03/16/2012)
232 NOTICE of Appearance by Donald Eppers on behalf of Arbitration Claimants (Eppers, Donald) (Entered: 03/20/2012)
233 DECLARATION signed by Margaret A. Malloy re 229 MOTION for Protective Order Sealing Exhibit 22 to EEOC's Motion to Compel filed by Equal Employment Opportunity Commission Response filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 03/26/2012)
234 MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel Further Rule 30(b)(6) Deposition Testimony from the EEOC) by Sterling Jewelers, Inc.. (Attachments: # 1 Affidavit Declaration Of Gerald L. Maatman, Jr. (and Index of Exhibits to Declaration), # 2 Exhibit 1 − Notice of Rule 30(b)(6) Deposition of the EEOC, # 3 Exhibit 2 − February 9, 2012 letter from Sterling to EEOC, # 4 Exhibit 3 − February 17, 2012 letter from EEOC to Sterling, # 5 Exhibit 4 − February 27, 2012 letter from Sterling to EEOC, # 6 Exhibit 5 − April 8, 2012 letter from EEOC to Sterling, # 7 Exhibit 6 − Deposition transcript of Jennifer Carlo)(Maatman, Gerald) (Entered: 04/16/2012)
235 MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests) by Sterling Jewelers, Inc.. (Attachments: # 1 Affidavit Declaration of Gerald L. Maatman, Jr. (and Index of Exhibits to Declaration), # 2 Exhibit 1 − EEOC Compliance Manual, Vol. 1, Sec. 22.2, # 3 Exhibit 2 − Defendants First Set of Requests for Production of Documents, # 4 Exhibit 3 − EEOCs Amended Privilege Log, dated November 18, 2011, # 5 Exhibit 4 − Deposition transcript of Jennifer Carlo, # 6 Exhibit 5 − February 9, 2012 letter from Sterling to EEOC, # 7 Exhibit 6 − February 17, 2012 letter from EEOC to Sterling, # 8 Exhibit 7 − February 27, 2012 letter from Sterling to EEOC, # 9 Exhibit 8 − March 13, 2012 letter from EEOC to Sterling)(Maatman, Gerald) (Entered: 04/16/2012)
236 RESPONSE to Motion re 235 MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests), 234 MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel Further Rule 30(b)(6)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 29 of 48

04/19/2012 04/25/2012 04/26/2012
04/27/2012 04/27/2012
04/27/2012 05/03/2012 05/03/2012

Deposition Testimony from the EEOC) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel Further Rule 30(b)(6) Deposition Testimony from the EEOC) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel Further Rule 30(b)(6) Deposition Testimony from the EEOC) and Request for Court Conference filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 04/19/2012)
237 TEXT ORDER : A conference concerning the pending discovery disputes ([234, 235]) is set for April 27, 2012 at 2:30 p.m. In advance of the conference, plaintiff may make written submissions addressing the current discovery disputes. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/19/12. (DAZ) (Entered: 04/19/2012)
238 REPLY/RESPONSE to re 236 Response to Motion,,,,, (Letter to Magistrate Judge McCarthy in response to the EEOC's letter to the Court of April 19, 2012) filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − Declaration of Gerald L. Maatman, Jr., # 2 Certificate of Service)(Maatman, Gerald) (Entered: 04/25/2012)
239 RESPONSE to Motion re 235 MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel the EEOC to Fully Respond to Pending Discovery Requests), 234 MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel Further Rule 30(b)(6) Deposition Testimony from the EEOC) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel Further Rule 30(b)(6) Deposition Testimony from the EEOC) MOTION to Compel (Pre−Motion Letter To Magistrate Judge McCarthy Requesting the Court to Compel Further Rule 30(b)(6) Deposition Testimony from the EEOC) filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Malloy, Margaret) (Entered: 04/26/2012)
240 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 4/27/2012. Discussed motions 229, 234 and 235. Decision to follow. Appearances: Margaret Ann Malloy for Plaintiff and Gerald L. Maatman Jr. for Defendant. (DAZ) (Entered: 04/27/2012)
241 TEXT ORDER : In accordance with today's telephonic conference, defendant's unopposed motion for a protective order 229 is granted and defendant's motions to compel [234, 235] are denied, without prejudice to its right to file a formal motion by May 3, 2012. If such a motion is filed, plaintiff's response shall be filed by May 18, 2012, and the motion will be deemed submitted on the papers. A further status conference is set for June 12, 2012 at 4:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 4/27/12. (DAZ) (Entered: 04/27/2012)
CALENDAR EVENT: Status Conference set for 6/12/2012 at 04:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 04/27/2012)
242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 05/03/2012)
243 MEMORANDUM in Support re 242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC filed by Sterling Jewelers, Inc.. (Attachments: # 1 Affidavit Declaration of Gerald L. Maatman, Jr., # 2 Exhibit 1 to Declaration of Gerald L. Maatman, Jr. − Notice of Rule 30(b)(6) Deposition of the EEOC, # 3 Exhibit 2 to Declaration of Gerald L. Maatman, Jr. − Deposition Transcript of Jennifer Carlo, # 4 Exhibit 3 to Declaration of Gerald L. Maatman, Jr. − EEOC Compliance Manual, # 5 Exhibit 4 to to Declaration of Gerald L. Maatman, Jr. −

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 30 of 48

05/03/2012 05/07/2012 05/14/2012 05/18/2012 05/18/2012 06/01/2012
06/01/2012 06/01/2012 06/04/2012
06/04/2012 06/05/2012

Defendant's First Set of Requests for Production of Documents)(Maatman, Gerald) (Entered: 05/03/2012)
244 CONTINUATION OF EXHIBITS to 243 Memorandum in Support of Motion,, (Compendium of Unreported Case Cited in Defendant's Memorandum of Law in Support of Its Motion to Compel). (Maatman, Gerald) (Entered: 05/03/2012)
245 ORDER approving Stipulation for Discovery of Electronically Stored Information. Signed by Hon. Jeremiah J. McCarthy on 5/2/12. (DAZ) (Entered: 05/07/2012)
246 DECISION AND ORDER granting in part and denying in part [215, 218] cross−motions to compel. Signed by Hon. Jeremiah J. McCarthy on 5/14/12. (DAZ) (Entered: 05/14/2012)
247 Plaintiff's Motion for an Extension of Time to File Response/Reply (Margaret A. Malloy, Esq.) (Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 05/18/2012)
248 TEXT ORDER granting 247 Motion for Extension of Time to File Response/Reply. Response/Reply due by 6/1/2012. Issued by Hon. Jeremiah J. McCarthy on 5/18/12. (DAZ) (Entered: 05/18/2012)
249 DECLARATION signed by Margaret A. Malloy re 242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC filed by Equal Employment Opportunity Commission in Opposition To Sterling's Motion to Compel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Charges of Discrimination, # 2 Exhibit Letter from Investigator, # 3 Exhibit Letter from Sterling to EEOC re. Mediation, # 4 Exhibit Mediation Agreement, # 5 Exhibit Letter from Sterling to EEOC, # 6 Exhibit Tolling Agreement, # 7 Exhibit Letter from EEOC to Sterling Requesting Information, # 8 Exhibit EEOC Determination, # 9 Exhibit Deposition Notice, # 10 Exhibit Letter from EEOC to Sterling Re Invest. Memos, # 11 Exhibit Letter from EEOC to Sterling Re. Deposition, # 12 Exhibit Email correspondence, # 13 Exhibit Email correspondence, # 14 Exhibit Deposition Exhibit: Incomplet Fax, # 15 Exhibit Complete Fax, # 16 Exhibit Questions Invading Delibarative Process, # 17 Exhibit Carlo Declaration)(Malloy, Margaret) (Entered: 06/01/2012)
250 MEMORANDUM in Opposition re 242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 06/01/2012)
251 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 250 Memorandum in Opposition to Motion, 249 Declaration,,,, (Malloy, Margaret) (Entered: 06/01/2012)
252 DECLARATION signed by Margaret A. Malloy re 242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC filed by Equal Employment Opportunity Commission in Opposition to Sterling's Motion to Compel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Charges of Discrimination, # 2 Exhibit EEOC Letter to Sterling requesting information, # 3 Exhibit Sterling Letter to EEOC inviting mediation, # 4 Exhibit Mediation Agreement, # 5 Exhibit Sterling letter to EEOC re Determination, # 6 Exhibit Tolling Agreement, # 7 Exhibit EEOC letter to Sterling re mediation unsuccessful, # 8 Exhibit EEOC Determination, # 9 Exhibit Notice of Rule 30(b)(6) deposition, # 10 Exhibit EEOC letter to Sterling re. internal documents, # 11 Exhibit EEOC to Sterling re. 30(b)(6) deposition, # 12 Exhibit EEOC and Sterling email correspondence, # 13 Exhibit EEOC and Sterling email correspondence, # 14 Exhibit deposition exhibit − fax attachment, # 15 Exhibit fax with cover sheet, # 16 Exhibit Questions invading GDP, # 17 Exhibit Declaration of Jennifer Carlo)(Malloy, Margaret) (Entered: 06/04/2012)
253 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 252 Declaration,,,, (Malloy, Margaret) (Entered: 06/04/2012)
254 Sterling's Motion for Leave to Serve a Reply (Gerald L. Maatman, Jr., Esq.) (Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 06/05/2012)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 31 of 48

06/05/2012 06/06/2012
06/07/2012 06/08/2012
06/12/2012 06/15/2012
06/15/2012 06/15/2012 06/25/2012
06/26/2012 07/30/2012 07/30/2012 07/31/2012 08/13/2012 08/15/2012

255 ORDER granting 254 Sterling's Motion for Leave to Serve A Reply. Signed by Hon. Jeremiah J. McCarthy on 6/5/11. (DAZ) (Entered: 06/05/2012)
256 TEXT ORDER. Sterling's reply, if any, in further support of its motion to compel 242 shall be served and filed by June 8, 2012 and the EEOC's sur−reply, if any, shall be served and filed by June 15, 2012, after which time the motion 242 will be deemed submitted on the papers. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/5/2012. (CMD) (Entered: 06/06/2012)
CALENDAR EVENT: The June 12, 2012 conference is rescheduled from 4:00 p.m. to 3:30 p.m. before Hon. Jeremiah J. McCarthy. (CMD) (Entered: 06/07/2012)
257 REPLY/RESPONSE to re 242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC, 243 Memorandum in Support of Motion,, Defendant's Reply In Support Of Its Motion To Compel Further Rule 30(b)(6) Deposition Testimony And Other Discovery From The EEOC filed by Sterling Jewelers, Inc.. (Attachments: # 1 Compendium Of Unreported Cases Cited In Defendant's Reply In Support Of Its Motion To Compel Further Rule 30(b)(6) Deposition Testimony And Other Discovery From The EEOC)(Maatman, Gerald) (Entered: 06/08/2012)
258 CALENDAR EVENT: Status Conference reset from 6/12/2012 to 6/25/2012 at 04:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 06/12/2012)
259 DECLARATION signed by Jacqueline A. Berrien re 242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC filed by Equal Employment Opportunity Commission In Opposition to Sterling's Motion to Compel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit exhibit 1, # 2 Exhibit exhibit 2)(Malloy, Margaret) (Entered: 06/15/2012)
260 RESPONSE in Opposition re 242 MOTION to Compel Further Rule 30(b)(6) Deposition Testimony and Other Discovery from the EEOC filed by Equal Employment Opportunity Commission. (Malloy, Margaret) (Entered: 06/15/2012)
261 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 259 Declaration, 260 Response in Opposition to Motion (Malloy, Margaret) (Entered: 06/15/2012)
262 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 6/25/2012. Discussed letters recently submitted to the court. A further status conference is set for July 31, 2012 at 2:00 p.m. Appearances: Margaret Ann Malloy for Plaintiff and Gerald L. Maatman Jr. for Defendant. (DAZ) Modified on 10/24/2012 to correct date of proceeding (DAZ). (Entered: 06/26/2012)
CALENDAR EVENT: Status Conference set for 7/31/2012 at 02:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 06/26/2012)
263 TEXT ORDER : The July 31, 2012 status conference is adjourned to August 15, 2012 at 2:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 7/30/12. (DAZ) (Entered: 07/30/2012)
264 NOTICE of Appearance by Anna Marie Pohl on behalf of Equal Employment Opportunity Commission (Pohl, Anna) (Entered: 07/30/2012)
265 NOTICE of Appearance by Jeffrey C. Burstein on behalf of Equal Employment Opportunity Commission (Burstein, Jeffrey) (Entered: 07/31/2012)
*** MOTION TERMINATED*** 215 Motion to Compel granted in part and denied in part per 246 . (DAZ) (Entered: 08/13/2012)
266 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument held on 8/15/2012. Parties discussed their positions as presented in various letters to the Court. Suggestions taken as to the best way to proceed with discovery issues/disputes. Parties to file formal motions on their positions, briefing schedule set. Oral argument scheduled for October 10, 2012 at 2:00 p.m. An in camera document review set for August 21, 2012 at 2:00 p.m. APPEARANCES: Nora E. Curtin, Anna Marie Pohl, Jeffrey C. Burstein for Plaintiff (all via telephone) and Gerald L.

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 32 of 48

08/15/2012 08/16/2012 08/16/2012
08/21/2012 09/18/2012 09/19/2012 09/20/2012 09/21/2012 10/01/2012 10/01/2012

Maatman, Jr. (via telephone) for Defendant. (FTR GOLD) (DAZ) Modified on 8/16/2012 to correct date (DAZ). (Entered: 08/16/2012)
CALENDAR EVENT : Status Conference set for 8/21/2012 at 02:00 PM before Hon. Jeremiah J. McCarthy. Oral Argument set for 10/10/2012 at 02:00 PM before Hon. Jeremiah J. McCarthy. Modified on 8/16/2012 to correct date from 9/21/12 to 8/21/12 (DAZ). (Entered: 08/16/2012)
CALENDAR EVENT: Status Conference set for 8/21/2012 at 02:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 08/16/2012)
267 TEXT ORDER : For the reasons stated on the record at yesterday's proceeding, defendant's motion to compel 242 is denied to the extent that it seeks a further Fed. R. Civ. P. 30(b)(6) deposition, without prejudice to renewal if defendant is unable to obtain the information it seeks though the other available discovery mechanisms. The parties agree that the court may conduct an ex parte sealed proceeding with plaintiff to discuss its redactions based on the government deliberative process privilege to the documents (Berrien Declaration 259 , Exhibit 1) that have been produced for my in camera review. This telephonic conference is scheduled for August 21, 2012 at 2:00 p.m. The court will initiate the call. Since the parties have been unable to resolve their disputes concerning plaintiff's proposed Fed. R. Evid. 502(d) stipulation and the propriety of defendant's assertion of the "Resolve privilege", plaintiff shall file its motions concerning these issues by September 19, 2012, defendant's responses shall be filed by October 1, 2012, plaintiff's replies, if any, shall be filed by October 5, 2012, and oral argument is scheduled for October 10, 2012 at 2:00 p.m. In the interim, the parties shall meet and confer concerning the defendant's document redactions and response to Interrogatory No. 2. If these issues remain in dispute or there are other discovery issues that the parties seek to raise, they shall make written submissions, which will be addressed at the October 10, 2012 proceeding. The parties may participate in the October 10, 2012 proceeding by telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 8/16/12. (DAZ) (Entered: 08/16/2012)
268 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: In Camera Review held on 8/21/2012. Sealed proceedings. APPEARANCES: Nora E. Curtin for Plaintiff. (FTR GOLD) (DAZ) (Entered: 08/22/2012)
269 MOTION to Compel by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support EEOC brief in support of motion to compel, # 2 Affidavit Declaration of Jeffrey Burstein in support of motion, # 3 Certificate of Service)(Burstein, Jeffrey) (Entered: 09/18/2012)
270 MOTION Entry of Rule 502d Order by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support, # 2 Affidavit, # 3 Text of Proposed Order, # 4 Certificate of Service)(Pohl, Anna) (Entered: 09/19/2012)
271 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 9/20/2012 re depositions and possible protective order. APPEARANCES: Jeffrey Burstein for Plaintiff; Daniel B. Klein for Defendant; Sam Smith for Arbitrators/Interventor Plaintiffs. (FTR GOLD) (DAZ) (Entered: 09/20/2012)
272 TEXT ORDER : Yesterday, defendant orally moved for a protective order under Fed. R. Civ. P. 26(c)(1)(E) to bar Dawn Souto−Coons from attending a deposition that was occurring in this case. After considering the case authority cited by both parties, defendant's oral motion is denied for the reasons set forth on the record at yesterday's proceeding. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 9/21/12. (DAZ) (Entered: 09/21/2012)
273 MEMORANDUM in Opposition re 270 MOTION Entry of Rule 502d Order Defendant's Opposition To The EEOC's Motion For An Order Pursuant To Rule 502(d) Of The Federal Rules Of Evidence filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 10/01/2012)
274 MEMORANDUM in Opposition re 270 MOTION Entry of Rule 502d Order Compendium Of Unreported Cases Cited In Defendant's Opposition To The EEOC's Motion For An Order Pursuant To Rule 502(d) Of The Federal Rules Of Evidence

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 33 of 48

10/01/2012 10/01/2012 10/01/2012 10/04/2012 10/05/2012 10/10/2012 10/10/2012 10/11/2012
10/18/2012

filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit Tab 1, # 2 Exhibit Tab 2, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Maatman, Gerald) (Entered: 10/01/2012)
275 MEMORANDUM IN OPPOSITION re 269 MOTION to Compel EEOC's Second Motion For An Order Compelling Sterling To Provide Discovery Responses by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 10/01/2012)
276 DECLARATION re 275 Memorandum in Opposition filed by Sterling Jewelers, Inc. of Gerald L. Maatman, Jr.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Maatman, Gerald) (Entered: 10/01/2012)
277 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 275 Memorandum in Opposition Compendium Of Unrelated Cases Cited In Defendant's Memorandum In Opposition To EEOC's Second Motion For An Order Compelling Sterling To Provide Discovery Responses filed by Sterling Jewelers, Inc.. (Attachments: # 1 TAB 1, # 2 TAB 2)(Maatman, Gerald) (Entered: 10/01/2012)
278 REPLY to Response to Motion re 269 MOTION to Compel Reply Brief of EEOC in Support of Second Motion to Compel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Burstein, Jeffrey) (Entered: 10/04/2012)
279 REPLY to Response to Motion re 270 MOTION Entry of Rule 502d Order EEOC's Reply Memorandum in Support of its Motion for Order Pursuant to Rule 502(d) of the Federal Rules of Evidence filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Pohl, Anna) (Entered: 10/05/2012)
280 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument on motions [269, 270] held on 10/10/2012. Arguments presented. Court grants 269 and denies 270 for reasons stated on the record. Parties also discussed issues raised in several letters to the court. Parties wish to extend CMO deadlines but cannot agree on length of extension. Oral argument on this issue set for 11/13/12 at 4:00 p.m. Text order to follow. APPEARANCES: Anna Marie Pohl and Jeffrey C. Burstein (both parties via telephone) for Plaintiff; Gerald L. Maatman, Jr. (via telephone) for Defendant. (DAZ) (Entered: 10/10/2012)
CALENDAR EVENT: Oral Argument set for 11/13/2012 at 04:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 10/10/2012)
281 TEXT ORDER : For the reasons set forth on the record at yesterday's proceeding, the EEOC's motion to compel 269 documents withheld by Sterling under the purported RESOLVE privilege is granted, and its motion 270 for the entry of a Fed. R. Evid. 502(d) order is denied, without prejudice. At yesterday's proceeding the parties also agreed that I could determine, without the benefit of a formal motion, the EEOC's request for unredacted copies of the documents identified in the attachment to its September 18, 2012 letter to the court. For the reasons stated on the record, this request is granted, and Sterling shall produce these documents in unredacted form. As noted in my May 14, 2012 Decision and Order ( 246 , p. 23), the parties shall meet and confer about the EEOC's ability to contact the Sterling employees identified in these documents, and if the parties are unable to reach an agreement on this issue, an appropriate motion may be filed. The parties having agreed that I could conduct an ex parte sealed proceeding with plaintiff to discuss its redactions based on the government deliberative process privilege 267 , and this ex parte proceeding having been conducted on August 21, 2012 268 , I conclude that the EEOC's redactions are proper under this privilege. The remaining deadlines of the Stage I Discovery Plan and Case Management Order 209 will be extended, but the duration of this extension will not be determined until this issue is briefed. By October 26, 2012 the EEOC shall file its motion to extend the Case Management Order deadlines, Sterling shall respond by November 7, 2012, and oral argument is scheduled for November 13, 2012 at 4:00 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 10/11/12. (DAZ) (Entered: 10/11/2012)
282 STIPULATION Regarding Treatment of Depositions in the Above−Captioned Matter by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 10/18/2012)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 34 of 48

10/25/2012
10/26/2012 11/07/2012 11/07/2012 11/07/2012
11/15/2012 11/19/2012
11/19/2012 11/29/2012 11/30/2012 12/03/2012 12/11/2012

283 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/25/12, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number (843) 723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/15/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/23/2013. (DZ) (Entered: 10/25/2012)
284 MOTION for Extension of Time to Complete Discovery by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support Brief of EEOC in support of motion to extend Case Management Order deadlines, # 2 Affidavit Declaration of Jeffrey Burstein in support of motion for extension, # 3 Certificate of Service)(Burstein, Jeffrey) (Entered: 10/26/2012)
285 TEXT ORDER : At the parties' request, oral argument of the EEOC's motion to extend the Case Management Order deadlines 284 is rescheduled from November 13, 2012 to November 15, 2012 at 10:00 a.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 11/7/12. (DAZ) (Entered: 11/07/2012)
286 MEMORANDUM in Opposition re 284 MOTION for Extension of Time to Complete Discovery (of the Deadlines in the Case Management Order) filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 11/07/2012)
287 DECLARATION signed by Gerald L. Maatman, Jr. re 286 Memorandum in Opposition to Motion filed by Sterling Jewelers, Inc. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − E−mail (w/o attachments) From Sterling To The EEOC Dated May 9, 2012, # 2 Exhibit B − E−mail From The EEOC Sterling To Sterling Dated May 15, 2012, # 3 Exhibit C − Letter From The EEOC To The Court Dated September 12, 2012, # 4 Exhibit D − Letter From Sterling To The Court Dated September 19, 2012, # 5 Exhibit E − Letter (w/o attachments) From The EEOC To Sterling Dated September 29, 2012, # 6 Exhibit F − Letter From Sterling To The EEOC Dated October 9, 2012)(Maatman, Gerald) (Entered: 11/07/2012)
288 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument held on 11/15/2012. Court grants motion 284 to extend the deadlines of the Case Management Order for four months. An Amended CMO to follow. APPEARANCES: Jeffrey C. Burstein (via telephone) for Plaintiff and Gerald L. Maatman Jr. (via telephone) for Defendant. (DAZ) (Entered: 11/15/2012)
289 AMENDED STAGE I CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Dispositive Motions due by 10/14/2013. In the event that no dispositive mtoions are filed, the parties will contact Judge Arcara's chambers no later than 10/17/2013 to schedule a trial date as to Stage I. Signed by Hon. Jeremiah J. McCarthy on 11/16/12. (DAZ) (Entered: 11/19/2012)
*** MOTION TERMINATED *** 284 Motion for Extension of Time to Complete Discovery resolved per 289 . (DAZ) (Entered: 11/19/2012)
290 MOTION to Withdraw as Attorney by Sterling Jewelers, Inc..(Zashin, Stephen) (Entered: 11/29/2012)
291 STIPULATION re 290 MOTION to Withdraw as Attorney Consent to Motion to Withdraw as Counsel by Sterling Jewelers, Inc.. (Zashin, Stephen) (Entered: 11/30/2012)
292 ORDER granting 290 Motion to Withdraw as Attorney (Zashin & Rich Co.). Signed by Hon. Jeremiah J. McCarthy on 12/3/12. (DAZ) (Entered: 12/06/2012)
293 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Status Conference Proceedings held on October 10, 2012, before Judge Jeremiah McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number 843−723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 1/1/2013. Redacted Transcript Deadline set for 1/11/2013. Release of Transcript Restriction set

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 35 of 48

12/28/2012 01/02/2013 01/09/2013

for 3/11/2013. (DLC) (Entered: 12/11/2012)
294 TEXT ORDER : Defendant's letter response to plaintiff's December 27, 2012 correspondence to the court shall be served by January 7, 2013, and a conference concerning these submissions is scheduled for January 9, 2013 at 3:30 p.m. The parties may participate via telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 12/28/12. (DAZ) (Entered: 12/28/2012)
295 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 8/15/12, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, Telephone number christimacri50@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/23/2013. Redacted Transcript Deadline set for 2/4/2013. Release of Transcript Restriction set for 4/2/2013. (DZ) (Entered: 01/02/2013)
296 MINUTE ENTRY AND ORDER : Proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 1/9/2013. APPEARANCES: Jeffrey Burstein for Plaintiff and Gerald L. Maatman, Jr. for Defendant.

As indicated at today's conference, based upon my review of the parties' letter submissions, I am inclined to extend the deadlines of the Amended Stage I Case Management Order 289 by 60 days, but will reserve my determination until after defendant completes its document production, which it has indicated will occur by the end of January. A further telephonic conference is set for February 6, 2013 at 1:15 p.m. to address this issue. The parties shall provide my chambers with telephone numbers where they can be reached. The court will initiate the call.

01/09/2013 01/22/2013 02/06/2013 02/06/2013 02/06/2013
02/07/2013

SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/9/13. (FTR GOLD) (DAZ) (Entered: 01/09/2013)
CALENDAR EVENT: Status Conference set for 2/6/2013 at 01:15 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 01/09/2013)
297 TEXT ORDER : By January 24, 2013, defendant shall submit a letter response to plaintiff's January 18, 2013 correspondence to the court, and a conference concerning these submissions is set for January 29, 2013 at 3:00 p.m. The parties may participate by telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/22/13. (DAZ) (Entered: 01/22/2013)
298 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 2/6/2013. Court addresses various discovery issues and grants 90 day extension of Case Management Order deadlines. Deadlines discussed and set. Schedule to follow. A further status conference is set for 2/22/13 at 4:00 p.m. APPEARANCES: Judith Ann Biltekoff, Jeffrey C. Burstein for Plaintiff; Gerald L. Maatman, Jr. for Defendant. (FTR GOLD) (DAZ) (Entered: 02/06/2013)
CALENDAR EVENT: Status Conference set for 2/22/2013 at 04:00 PM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 02/06/2013)
299 TEXT ORDER : In accordance with today's telephonic conference, the fact discovery deadline of the Amended Stage I Case Management Order 289 is extended to May 13, 2013, and the subsequent deadlines will be proportionally extended in a Second Amended Stage I Case Management Order. By February 11, 2013 the EEOC shall submit a letter responding to the discovery dispute identified in Sterling's January 28, 2013 letter; by February 14, 2013 Sterling may reply; and a conference concerning these submissions, as well as the right of Sterling to depose EEOC investigator David Ging, is set for February 22, 2013 at 4:00 p.m. The parties may participate by telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 2/6/13. (DAZ) (Entered: 02/06/2013)
300 SECOND AMENDED STAGE I CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 36 of 48

02/07/2013 02/07/2013 02/07/2013 02/08/2013
02/22/2013 02/25/2013 02/26/2013
02/26/2013
03/01/2013 03/04/2013

responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Dispositive Motions due by 1/14/2014. In the event that no dispositive motions are filed, a status conference is set for 1/17/2014 at 09:00 AM before Hon. Jeremiah J. McCarthy. Signed by Hon. Jeremiah J. McCarthy on 2/7/13. (DAZ) (Entered: 02/07/2013)
301 Emergency MOTION to Strike Certain Deposition Testimony And Questioning by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 02/07/2013)
302 MEMORANDUM in Support re 301 Emergency MOTION to Strike Certain Deposition Testimony And Questioning filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 02/07/2013)
303 DECLARATION re 302 Memorandum in Support of Motion filed by Sterling Jewelers, Inc. . (Attachments: # 1 Exhibit A − May 14, 2002 Decision And Order, # 2 Exhibit B − Transcript Excerpts From February 6, 2013 Deposition Of Barry Fernholz)(Maatman, Gerald) (Entered: 02/07/2013)
304 TEXT ORDER : The EEOC's response to Sterling's motion to strike 301 shall be served and filed by March 1, 2013; Sterling's reply, if any, shall be served and filed by March 8, 2013, after which time the motion 301 will be taken under advisement without oral argument unless requested by one of the parties or deemed necessary by the court. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 2/8/13. (DAZ) (Entered: 02/08/2013)
CALENDAR EVENT : The February 22, 2013 Status Conference is reset for February 26, 2013 at 10:00 AM before Hon. Jeremiah J. McCarthy. (DAZ) (Entered: 02/22/2013)
*** MOTION TERMINATED *** 242 Motion to Compel granted in part and denied in part per 267 . (DAZ) (Entered: 02/25/2013)
305 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 2/26/2013. Court addresses issues raised in the letters dated 1/18, 1/24, 1/28, 2/11 and 2/14. Court advises that letters discussed today will be put on the docket. Parties to file motions outlining the issues raised in these letters and/or any additional issues that need to be brought before the court. Court sets briefing schedule. Plaintiff has concerns about upcoming deposition and requests that the court be available during that deposition if a problem arises. Court agrees. Parties should contact the court with possible dates. APPEARANCES: Anna Marie Pohl, Jeffrey Burstein for Plaintiff; Gerald Maatman, Jr. for Defendant. (FTR GOLD) (DAZ) (Entered: 02/26/2013)
306 TEXT ORDER : As agreed to by the parties at today's telephonic conference, Sterling shall file its motion concerning the EEOC's assertion of the common interest doctrine and sufficiency of the EEOC's privilege log entry nos. 95, 96 and 97 by March 8, 2013; the EEOC shall file its response by March 22, 2013; and Sterling's reply, if any, shall be filed by March 29, 2013, after which time the motion will be taken under advisement without oral argument unless deemed necessary by the court. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 2/26/13. (DAZ) (Entered: 02/26/2013)
307 MEMORANDUM in Opposition re 301 Emergency MOTION to Strike Certain Deposition Testimony And Questioning filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Declaration of Jeffrey Burstein, # 2 Certificate of Service)(Burstein, Jeffrey) (Entered: 03/01/2013)
308 TEXT ORDER : The parties having advised me that Sterling has no objection to the request of the arbitration claimants in Jock, et al. v. Sterling Jewelers Inc. (AAA Case No. 1 160 00655 08) to intervene in this case for the limited purpose of opposing Sterling's motion challenging the EEOC's assertion of the common interest doctrine 306 , this request is granted. The arbitration claimants may file and serve a response to Sterling's motion by March 22, 2013, and participate in the oral argument (if any) of this motion. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 3/4/13. (DAZ) (Entered: 03/04/2013)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 37 of 48

03/04/2013
03/08/2013 03/08/2013 03/08/2013 03/08/2013 03/08/2013 03/08/2013
03/08/2013 03/22/2013 03/22/2013 03/29/2013

309 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2/26/13, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Debra L. Potocki, Telephone number (843) 723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/25/2013. Redacted Transcript Deadline set for 4/4/2013. Release of Transcript Restriction set for 6/3/2013. (DZ) (Entered: 03/04/2013)
310 DEFENDANT'S REPLY re: 307 Plaintiff's Memorandum in Opposition re: 301 Defendant's Motion to Strike Certain Deposition Testimony and Questioning (Maatman, Gerald) Text Modified on 3/8/2013 (DZ). (Entered: 03/08/2013)
311 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 310 Reply/Response Compendium Of Unreported Cases Cited In Defendant's Reply In Support Of Its Emergency Motion To Strike Certain Deposition Testimony And Questioning filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 03/08/2013)
E−Filing Notification: 310 DEFENDANT'S REPLY ** Text Modified on 3/8/2013 to link entry to correct documents (DZ). (Entered: 03/08/2013)
312 MOTION to Compel Production Of Information Withheld Pursuant To EEOC Privilege Log Entry Nos. 95−97 by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 03/08/2013)
313 MEMORANDUM in Support re 312 MOTION to Compel Production Of Information Withheld Pursuant To EEOC Privilege Log Entry Nos. 95−97 filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 03/08/2013)
314 DECLARATION re 313 Memorandum in Support of Motion filed by Sterling Jewelers, Inc. (Gerald L. Maatman, Jr.). (Attachments: # 1 Exhibit 1 − EEOC's Response To Sterling's First Set Of Requests For Production Of Documents, # 2 Exhibit 2 − Plaintiff's Current Privilege Log Dated June 27, 2012, # 3 Exhibit 3 − Letter From Gerald L. Maatman, Jr. To Margaret Malloy Of The EEOC Dated June 12, 2012, # 4 Exhibit 4 − Letter From Margaret Malloy Of The EEOC To Gerald L. Maatman, Jr. Dated July 10, 2012, # 5 Exhibit 5 − Letter From Gerald L. Maatman, Jr. To Jeffrey Burstein Of The EEOC Dated November 8, 2012, # 6 Exhibit 6 − Letter From Anna Pohl Of The EEOC To Gerald L. Maatman, Jr. Dated November 13, 2012, # 7 Exhibit 7 − E−Mail (Without Attachments) From Kalpana Kotagal To Gerald L. Maatman, Jr. Dated October 19, 2012, # 8 Exhibit 8 − E−mail (Without Attachments) From Timothy Wojtuski Of The EEOC To Gerald L. Maatman, Jr. Dated November 1, 2012, # 9 Exhibit 9 − E−mail Corresopondence Exchanged Between Counsel For The EEOC And Claimant's Counsel Produced To Sterling On October 19, 2012, # 10 Exhibit 10 − Corresopondence Exchanged Between Counsel For The EEOC And Claimant's Counsel Produced To Sterling On November 1, 2012, # 11 Exhibit 11 − The EEOC's Letter Submission To The Court Dated February 11, 2013, # 12 Exhibit 12 − Sterling's Letter Submission To The Court Dated August 13, 2012)(Maatman, Gerald) (Entered: 03/08/2013)
315 CONTINUATION OF EXHIBITS to 313 Memorandum in Support of Motion To Compel Production Of Information Withheld Pursuant To EEOC Privilege Log Entry Nos. 95−97. (Maatman, Gerald) (Entered: 03/08/2013)
316 RESPONSE in Opposition re 312 MOTION to Compel Production Of Information Withheld Pursuant To EEOC Privilege Log Entry Nos. 95−97 filed by Arbitration Claimants. (Attachments: # 1 Certificate of Service, # 2 Affidavit, # 3 Exhibit 1 to Declaration, # 4 Exhibit 2 to Declaration, # 5 Exhibit 3 to Declaration, # 6 Exhibit 4 to Declaration, # 7 Exhibit 5 to Declaration, # 8 Exhibit 6 to Declaration)(Sellers, Joseph) (Entered: 03/22/2013)
317 MEMORANDUM in Opposition re 312 MOTION to Compel Production Of Information Withheld Pursuant To EEOC Privilege Log Entry Nos. 95−97 filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Declaration of Anna M. Pohl, # 2 Certificate of Service)(Burstein, Jeffrey) (Entered: 03/22/2013)
318 REPLY/RESPONSE to re 317 Memorandum in Opposition to Motion, 316 Response in Opposition to Motion, [Defendant's Reply In Support Of Its Motion To Compel 312 Production Of Information Withheld Pursuant To EEOC Privilege Log Entry Nos. 95−97] filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 03/29/2013)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 38 of 48

03/29/2013 04/12/2013
04/30/2013 05/03/2013 05/20/2013 05/20/2013
05/20/2013 06/11/2013
06/20/2013 06/26/2013 07/08/2013
07/29/2013 07/29/2013

319 CONTINUATION OF EXHIBITS to 318 Reply/Response, Defendant's Reply In Support Of Its Motion To Compel Production Of Information Withheld Pursuant To EEOC Privilege Log Entry Nos. 95−97. (Maatman, Gerald) (Entered: 03/29/2013)
320 THIRD AMENDED STAGE I CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Dispositive Motions due by 1/14/2014. In the event that no dispositive motions are filed, a trial date status conference is set for 1/17/2014 at 09:00AM before Hon. Jeremiah J. McCarthy. Signed by Hon. Jeremiah J. McCarthy on 4/12/13. (DAZ) (Entered: 04/12/2013)
321 MOTION to Withdraw as Attorney Jenny R. Yang by Arbitration Claimants.(Sellers, Joseph) (Entered: 04/30/2013)
322 ORDER granting 321 Motion to Withdraw as Attorney. Attorney Jenny R. Yang terminated. Signed by Hon. Jeremiah J. McCarthy on 5/2/13. (DAZ) (Entered: 05/03/2013)
323 Joint Motion to Extend Case Management Order Deadlines (Jeffrey Burstein, Esq.) (Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 05/20/2013)
324 FOURTH AMENDED STAGE I CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Dispositive Motions due by 2/4/2014. In the event that no dispositive motions are filed, a trial date status conference is set for 2/7/2014 at 09:00AM before Hon. Jeremiah J. McCarthy. Signed by Hon. Jeremiah J. McCarthy on 5/20/13. (DAZ) (Entered: 05/20/2013)
*** MOTION TERMINATED *** 323 Joint Motion for Extension of Case Management Order Deadlines granted per 324 . (DAZ) (Entered: 05/20/2013)
325 TEXT ORDER : The EEOC's letter response to Sterling's June 11, 2013 letter concerning the Fed. R. Civ. P. 30(b)(6) deposition of David Ging shall be submitted by June 18, 2013, and a conference concerning these submissions is set for June 20, 2013 at 1:00 p.m. The parties may participate by telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 6/11/13. (DAZ) (Entered: 06/11/2013)
CALENDAR EVENT : The June 20, 2013 conference is rescheduled for June 26, 2013 at 3:00 p.m. (DAZ) (Entered: 06/20/2013)
326 Minute Entry for proceedings held before Hon. Jeremiah J. McCarthy: Telephonic Status Conference held on 6/26/2013 to address issues raised in recently received correspondence. APPEARANCES: Nora E. Curtin and Judith Ann Biltekoff for Plaintiff; Gerald L. Maatman Jr. for Defendant. (FTR GOLD) (DAZ) (Entered: 06/27/2013)
327 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/26/13, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, Telephone number christimacri50@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/29/2013. Redacted Transcript Deadline set for 8/8/2013. Release of Transcript Restriction set for 10/7/2013. (DZ) (Entered: 07/08/2013)
328 The parties' joint motion to extend the Stage I Case Management Order Deadlines (Gerald L. Maatman, Jr.) (Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 07/29/2013)
329 FIFTH AMENDED STAGE I CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Signed by Hon.

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 39 of 48

07/29/2013 08/01/2013 08/02/2013
08/02/2013 08/07/2013 09/03/2013 09/20/2013 09/25/2013 09/25/2013 09/25/2013
09/25/2013

Jeremiah J. McCarthy on 7/29/13. (DAZ) (Entered: 07/29/2013)
*** MOTION TERMINATED *** 328 Motion to Extend Stage I Case Management Order granted per 329 . (DAZ) (Entered: 07/29/2013)
330 The parties' joint motion to extend the Stage I Case Management Order Deadlines (Gerald L. Maatman, Jr.) (Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 08/02/2013)
331 SIXTH AMENDED STAGE I CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Signed by Hon. Jeremiah J. McCarthy on 8/2/13. (DAZ) (Entered: 08/02/2013)
332 ORDER granting 330 Motion for Extension of Case Management Order Deadlines. See 331 . Signed by Hon. Jeremiah J. McCarthy on 8/2/13. (DAZ) (Entered: 08/02/2013)
333 NOTICE of Appearance by Jeffrey S. Klein on behalf of Sterling Jewelers, Inc. (Klein, Jeffrey) (Entered: 08/07/2013)
334 DECISION AND ORDER denying 301 Motion to Strike. Signed by Hon. Jeremiah J. McCarthy on 9/3/13. (DAZ) (Entered: 09/03/2013)
335 MOTION to Withdraw as Attorney Lisa M. Mezzetti by Arbitration Claimants.(Sellers, Joseph) (Entered: 09/20/2013)
336 MOTION for Partial Summary Judgment by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 09/25/2013)
337 MEMORANDUM in Support re 336 MOTION for Partial Summary Judgment filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 09/25/2013)
338 STATEMENT OF FACTS In Support Of Its Motion For Partial Summary Judgment by Sterling Jewelers, Inc. Related document: 336 Motion for Partial Summary Judgment, 337 Memorandum in Support of Motion. (Maatman, Gerald) (Entered: 09/25/2013)
339 DECLARATION re 336 MOTION for Partial Summary Judgment , 337 Memorandum in Support of Motion, 338 Statement of Facts filed by Sterling Jewelers, Inc. of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − Laryssa Jock Charge, # 2 Exhibit B B − Jacquelyn Boyle Charge, # 3 Exhibit C − Marie Wolf Charge, # 4 Exhibit D − Carol King Charge, # 5 Exhibit E − Dawn Souto−Coons Charge, # 6 Exhibit F − Judy Reed Charge, # 7 Exhibit G − Assignment of Maria Melendez, # 8 Exhibit H − January 19, 2006 Letter from Melendez to Sterling, # 9 Exhibit I − April 21, 2006 Letter from Melendez to Sterling, # 10 Exhibit J − Letter from The EEOC Confirming Transfer of Files, # 11 Exhibit K − Lisa Follett Charge, # 12 Exhibit L − Carolyn Morse Charge, # 13 Exhibit M − Christy Davies Charge, # 14 Exhibit N − Linda Rhodes Charge, # 15 Exhibit O − Tana Shiver Charge, # 16 Exhibit P − Leighla Smith Charge, # 17 Exhibit Q − Khristina Rodrigues Charge, # 18 Exhibit R − Gloria Pagan Charge, # 19 Exhibit S − Maria House Charge, # 20 Exhibit T − Sharon Scroggins Charge, # 21 Exhibit U − Denise Maddox Charg, # 22 Exhibit V − ina Shahmirzadi Charge, # 23 Exhibit W − Lisa McConnell Charge, # 24 Exhibit X − Deposition of David Ging, # 25 Exhibit Y − Deposition of Jennifer Carlo, # 26 Exhibit Z − Correspondence from Ging to Sterling dated October 2, 2006, # 27 Exhibit AA − Correspondence from Sterling to Ging dated October 19, 2006, # 28 Exhibit BB − Correspondence from Ging to Sterling dated December 5, 2006, # 29 Exhibit CC − Correspondence from Sterling to Ging dated December 27, 2006, # 30 Exhibit DD − Transcript of the June 23, 2011 Hearing, # 31 Exhibit EE − Undated Correspondence from Ging to Sterling, # 32 Exhibit FF − Exhibit N to Claimants Correspondence to Ging dated November 30, 2007, # 33 Exhibit GG − Deposition of Dr. Louis Lanier, # 34 Exhibit HH − EEOCs Letter of Determination dated January 3, 2008, # 35 Exhibit II − Transcript of the June 26, 2013 Hearing, # 36 Exhibit JJ − June 11, 2013 Letter from Sterling to the Court, # 37 Exhibit KK − EEOC−Promulgated Management Directive 110 Chapter 6: Development of Impartial and Appropriate Factual Records, # 38 Exhibit LL − January 10, 2013 Letter from the EEOC to

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 40 of 48

09/25/2013 09/27/2013
09/27/2013 09/27/2013 09/27/2013

Sterling)(Maatman, Gerald) (Entered: 09/25/2013)
340 CONTINUATION OF EXHIBITS to 339 Declaration,,,,,,,,, 336 MOTION for Partial Summary Judgment , 337 Memorandum in Support of Motion, 338 Statement of Facts . (Maatman, Gerald) (Entered: 09/25/2013)
341 TEXT ORDER : Plaintiff's response to defendant's motion for partial summary judgment 336 shall be filed by October 23, 2013; defendant's reply, if any, shall be filed by November 6, 2013; and oral argument is scheduled for November 20, 2013 at 2:00 p.m. The parties may participate by telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 9/27/13. (DAZ) (Entered: 09/27/2013)
342 Plaintiff's Motion To Adjust Briefing Schedule (Jeffrey Burstein) (Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 09/27/2013)
343 ORDER granting 342 Plaintiff's Motion to Adjust Briefing Schedule. Signed by Hon. Jeremiah J. McCarthy on 9/27/13. (DAZ) (Entered: 09/27/2013)
344 −CLERK TO FOLLOW UP−

09/27/2013 09/27/2013 10/01/2013 10/01/2013
10/03/2013 10/09/2013 10/09/2013

ORDER granting 335 Motion to Withdraw as Attorney (Lisa M. Mezzetti). Signed by Hon. Jeremiah J. McCarthy on 9/27/13. (DAZ) (Entered: 09/30/2013)
345 Parties' Motion to Extend the Case Management Order deadlines (Gerald L. Maatman, Jr.)(Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 09/30/2013)
346 ORDER granting 345 Parties' Motion to Extend the Case Management Order Deadlines. Signed by Hon. Jeremiah J. McCarthy on 9/27/13. (DAZ) (Entered: 09/30/2013)
347 MOTION to Continue by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support)(Burstein, Jeffrey) (Entered: 10/01/2013)
348 SEVENTH AMENDED STAGE I CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Dispositive Motions due by 2/4/2014. Signed by Hon. Jeremiah J. McCarthy on 10/1/13. (DAZ) (Entered: 10/02/2013)
349 TEXT ORDER : Defendant's response to plaintiff's motion for a continuance 347 shall be filed by October 9, 2013, after which time the motion will be taken under advisement. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 10/3/13. (DAZ) (Entered: 10/03/2013)
350 RESPONSE in Opposition re 347 MOTION to Continue By EEOC Due To Government Shutdown filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 10/09/2013)
351 DECLARATION re 350 Response in Opposition to Motion filed by Sterling Jewelers, Inc. Of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − EEOCs Shutdown Contingency Plan In The Event Of Lapsed Appropriations, # 2 Exhibit B − ECF Docket Of EEOC v. Wal−Mart Stores East, LP, # 3 Exhibit C − October 4, 2013 Court Order In EEOC v. Olympia Constr., Inc., # 4 Exhibit D − October 2, 2013 Court Order In EEOC v. Wells Fargo Bank, N.A., # 5 Exhibit E − October 2, 2013 Court Order In EEOC v. Midway Neurological and Rehab. Ctr., LLC, # 6 Exhibit F − October 4, 2013 Court Order In EEOC v. Signal Intl, LLC, # 7 Exhibit G − October 2, 2013 Court Order In United States v. US Airways Grp., Inc., # 8 Exhibit H − October 2, 2013 Court Order In Priests For Life v. U.S. Dept Of Health & Human Servs., # 9 Exhibit I − October 2, 2013 Minute Entry For Proceedings In Saint Alphonsus Med. Ctr. v. St Lukes Health Sys. Ltd., # 10 Exhibit J − October 3, 2013 Court Order In Little River Band Of Ottawa v. NLRB, # 11 Exhibit K − October 2, 2013 Court Order In United States v. Bazaarvoice, Inc., # 12 Exhibit L − U.S. Department Of Justices Motion For A Stay Of Litigation In Light Of Lapse Of Appropriations)(Maatman, Gerald) . (Entered: 10/09/2013)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 41 of 48

10/11/2013 10/17/2013 11/07/2013 11/08/2013 11/12/2013
11/12/2013 11/12/2013
11/12/2013
11/12/2013

352 TEXT ORDER : Before me is plaintiff's motion for a continuance until appropriations for funding Federal Government operations are restored 347 . Having considered the parties' submissions [347, 350, 351], the motion 347 is granted in part and denied in part. This action is hereby stayed until November 12, 2013, without prejudice to plaintiff's right to apply for a further stay. However, the parties are cautioned that if any additional stay is granted (and I make no promises), it will not be lengthy or of indefinite duration. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 10/11/13. (DAZ) (Entered: 10/11/2013)
353 TEXT ORDER : The parties have contacted my chambers and agree to the following revised briefing schedule: Plaintiff's response to defendant's motion for partial summary judgment 336 shall be filed by November 15, 2013; defendant's reply, if any, shall be filed by December 2, 2013; and oral argument is scheduled for December 9, 2013 at 2:00 p.m. The parties may participate by telephone upon advance notice to chambers. The court will initiate the call. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 10/17/13. (DAZ) (Entered: 10/17/2013)
354 Sterling's Motion to Seal Docket 339 (Gerald L. Maatman, Jr.) (Letter motion filed with permission of Hon. Jeremiah J. McCarthy).(DAZ) (Entered: 11/08/2013)
355 ORDER granting 354 Motion to Seal Dkt. 339 . Signed by Hon. Jeremiah J. McCarthy on 11/8/13. (DAZ) (Entered: 11/08/2013)
356 DECLARATION re 336 MOTION for Partial Summary Judgment , 338 Statement of Facts filed by Sterling Jewelers, Inc. of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit A − Laryssa Jock Charge, # 2 Exhibit B − Jacquelyn Boyle Charge, # 3 Exhibit C − Marie Wolf Charge, # 4 Exhibit D − Carol King Charge, # 5 Exhibit E − Dawn Souto−Coons Charge, # 6 Exhibit F − Judy Reed Charge, # 7 Exhibit G − Assignment of Maria Melendez, # 8 Exhibit H − January 19, 2006 Letter from Melendez to Sterling, # 9 Exhibit I − April 21, 2006 Letter from Melendez to Sterling, # 10 Exhibit J − Letter from The EEOC Confirming Transfer of Files)(Maatman, Gerald) (Entered: 11/12/2013)
357 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 337 Memorandum in Support of Motion, 356 Declaration,, 336 MOTION for Partial Summary Judgment , 338 Statement of Facts of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit K − Lisa Follett Charge, # 2 Exhibit L − Carolyn Morse Charge, # 3 Exhibit M − Christy Davies Charge, # 4 Exhibit N − Linda Rhodes Charge, # 5 Exhibit O − Tana Shiver Charge, # 6 Exhibit P − Leighla Smith Charge, # 7 Exhibit Q − Khristina Rodrigues Charge)(Maatman, Gerald) (Entered: 11/12/2013)
358 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 337 Memorandum in Support of Motion, 356 Declaration,, 336 MOTION for Partial Summary Judgment , 357 Continuation of Exhibits,, 338 Statement of Facts of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit R − Gloria Pagan Charge, # 2 Exhibit S − Maria House Charge, # 3 Exhibit T − Sharon Scroggins Charge, # 4 Exhibit U − Denise Maddox Charge, # 5 Exhibit V − ina Shahmirzadi Charge, # 6 Exhibit W − Lisa McConnell Charge, # 7 Exhibit X − Deposition of David Ging, # 8 Exhibit Y − Deposition of Jennifer Carlo, # 9 Exhibit Z − Correspondence from Ging to Sterling dated October 2, 2006)(Maatman, Gerald) (Entered: 11/12/2013)
359 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 358 Continuation of Exhibits,, 337 Memorandum in Support of Motion, 356 Declaration,, 336 MOTION for Partial Summary Judgment , 357 Continuation of Exhibits,, 338 Statement of Facts of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit AA − Correspondence from Sterling to Ging dated October 19, 2006, # 2 Exhibit BB − Correspondence from Ging to Sterling dated December 5, 2006, # 3 Exhibit CC − Correspondence from Sterling to Ging dated December 27, 2006, # 4 Exhibit DD − Transcript of the June 23, 2011 Hearing, # 5 Exhibit EE − Undated Correspondence from Ging to Sterling)(Maatman, Gerald) (Entered: 11/12/2013)
360 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 359 Continuation of Exhibits,, 358 Continuation of Exhibits,, 337 Memorandum in Support of Motion, 356 Declaration,, 336 MOTION for Partial Summary Judgment , 357 Continuation of Exhibits,, 338 Statement of Facts of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit FF − Exhibit N to Claimants Correspondence to Ging dated November 30, 2007, # 2 Exhibit GG − Deposition of Dr. Louis Lanier, # 3

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 42 of 48

11/12/2013
11/15/2013 11/15/2013 11/15/2013
11/15/2013
11/15/2013 12/02/2013 12/02/2013 12/02/2013 12/02/2013 12/02/2013 12/02/2013

Exhibit HH − EEOCs Letter of Determination dated January 3, 2008, # 4 Exhibit II − Transcript of the June 26, 2013 Hearing, # 5 Exhibit JJ − June 11, 2013 Letter from Sterling to the Court)(Maatman, Gerald) (Entered: 11/12/2013)
361 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 359 Continuation of Exhibits,, 356 Declaration,, 336 MOTION for Partial Summary Judgment , 358 Continuation of Exhibits,, 357 Continuation of Exhibits,, 360 Continuation of Exhibits,, 337 Memorandum in Support of Motion, 338 Statement of Facts of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit KK − EEOC−Promulgated Management Directive 110 Chapter 6: Development of Impartial and Appropriate Factual Records, # 2 Exhibit LL − January 10, 2013 Letter from the EEOC to Sterling)(Maatman, Gerald) (Entered: 11/12/2013)
362 MEMORANDUM in Opposition re 336 MOTION for Partial Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Statement of Undisputed Facts, # 2 Certificate of Service)(Pohl, Anna) (Entered: 11/15/2013)
363 DECLARATION re 362 Memorandum in Opposition to Motion, 336 MOTION for Partial Summary Judgment filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Pohl, Anna) (Entered: 11/15/2013)
364 CONTINUATION OF EXHIBITS RE: 363 DECLARATION re 336 MOTION for Partial Summary Judgment , 363 Declaration, filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Errata, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Pohl, Anna) Modified on 11/18/2013 (DZ). (Entered: 11/15/2013)
365 CONTINUATION OF EXHIBITS RE: 363 DECLARATION re 336 MOTION for Partial Summary Judgment , 363 Declaration, filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit)(Pohl, Anna) Modified on 11/18/2013 (DZ). (Entered: 11/15/2013)
E−Filing Notification: 364 , 365 text modified to indicate entries are CONTINUATION OF EXHIBITS RE: 363 DECLARATION (DZ) (Entered: 11/18/2013)
366 REPLY/RESPONSE to re 362 Memorandum in Opposition to Motion (Defendant's Reply To Plaintiff's Opposition To Defendant's Motion For Partial Summary Judgment) filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 12/02/2013)
367 DECLARATION re 366 Reply/Response filed by Sterling Jewelers, Inc. (Supplemental Declaration of Gerald L. Maatman, Jr.) filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1)(Maatman, Gerald) (Entered: 12/02/2013)
368 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 367 Declaration, 366 Reply/Response (Compendium of Unreported Cases Cited In Defendant's Reply To Plaintiff's Opposition To Defendant's Motion For Partial Summary Judgment) filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 12/02/2013)
369 REPLY/RESPONSE to re 362 Memorandum in Opposition to Motion (Defendant's Response to Plaintiff's Additional Material Facts Contained In The EEOC's Statement of Facts In Opposition to Defendant's Motion For Partial Summary Judgment) filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 12/02/2013)
370 MOTION to Strike 362 Memorandum in Opposition to Motion (Notice Of Motion To Strike Portions Of Plaintiff's Statement Of Facts) by Sterling Jewelers, Inc..(Maatman, Gerald) (Entered: 12/02/2013)
371 MEMORANDUM in Support re 370 MOTION to Strike 362 Memorandum in Opposition to Motion (Notice Of Motion To Strike Portions Of Plaintiff's Statement Of Facts) (Defendant's Memorandum Of Law In Support Of Its Motion To Strike Portions Of Plaintiff's Statement Of Facts) filed by Sterling Jewelers, Inc.. (Maatman, Gerald)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 43 of 48

12/02/2013
12/06/2013 12/09/2013

(Entered: 12/02/2013)
372 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 370 MOTION to Strike 362 Memorandum in Opposition to Motion (Notice Of Motion To Strike Portions Of Plaintiff's Statement Of Facts), 371 Memorandum in Support of Motion, (Compendium Of Unreported Cases Cited In Defendant's Memorandum of Law In Support Of Its Motion To Strike Portions Of Plaintiff's Statement Of Facts) filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 12/02/2013)
373 STATEMENT OF FACTS Amended by Equal Employment Opportunity Commission Related document: 362 Memorandum in Opposition to Motion, 370 Motion to Strike, 336 Motion for Partial Summary Judgment. (Pohl, Anna) (Entered: 12/06/2013)
374 MINUTE ENTRY AND ORDER − Proceedings held before Hon. Jeremiah J. McCarthy: Oral Argument on Motion 336 for Partial Summary Judgment. Court also set a briefing schedule on Motion 370 to Strike. Report, Recommendation and Order to be filed shortly. APPEARANCES: Anna Marie Pohl and Jeffrey C. Burstein for Plaintiff; Scott Patrick Horton and Gerald L. Maatman, Jr. for Defendant.

As agreed to by the parties, plaintiff's response to defendant's motion to strike 370 shall be filed by December 16, 2013, defendant's reply, if any, shall be filed by December 23, 2013, after which time the motion 370 will be taken under advisement without oral argument unless deemed necessary by the court.

12/10/2013 12/11/2013
12/16/2013 12/16/2013 12/20/2013 12/23/2013 12/23/2013 01/02/2014 01/02/2014

SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 12/9/13. (DAZ) (Entered: 12/10/2013)
375 CONTINUATION OF EXHIBITS by Sterling Jewelers, Inc.. to 371 Memorandum in Support of Motion, Exhibit A to Defendant's Memorandum of Law In Support of Motion To Strike filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 12/10/2013)
376 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 12/9/13, before Judge Jeremiah J. McCarthy. Court Reporter/Transcriber Christi A. Macri, email christimacri50@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/2/2014. Redacted Transcript Deadline set for 1/13/2014. Release of Transcript Restriction set for 3/11/2014. (DZ) (Entered: 12/11/2013)
377 MEMORANDUM in Opposition re 370 MOTION to Strike 362 Memorandum in Opposition to Motion (Notice Of Motion To Strike Portions Of Plaintiff's Statement Of Facts) filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Pohl, Anna) (Entered: 12/16/2013)
378 STATEMENT OF FACTS Second Amended by Equal Employment Opportunity Commission Related document: 362 Memorandum in Opposition to Motion, 370 Motion to Strike, 377 Memorandum in Opposition to Motion, 336 Motion for Partial Summary Judgment. (Pohl, Anna) (Entered: 12/16/2013)
379 NOTICE of Appearance by Konrad Batog on behalf of Equal Employment Opportunity Commission (Batog, Konrad) (Entered: 12/20/2013)
380 REPLY/RESPONSE to re 377 Memorandum in Opposition to Motion, 378 Statement of Facts, Defendant's Reply to EEOC's Opposition To Defendant's Motion To Strike Portions of EEOC's Statement of Facts filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 12/23/2013)
381 DECLARATION re 380 Reply/Response, filed by Sterling Jewelers, Inc. Second Supplemental Declaration Of Gerald L. Maatman, Jr. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1)(Maatman, Gerald) (Entered: 12/23/2013)
382 Letter Brief in Response to 336 Motion for Partial Summary Judgment filed by Equal Employment Opportunity Commission (Konrad Batog, Esq.) (Filed with permission of Hon. Jeremiah J. McCarthy). (DAZ) (Entered: 01/02/2014)
383 REPORT, RECOMMENDATION AND ORDER re 336 MOTION for Partial Summary Judgment filed by Sterling Jewelers, Inc. and 370 MOTION to Strike filed

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 44 of 48

01/02/2014 01/02/2014 01/21/2014 01/24/2014 01/24/2014
02/07/2014 02/14/2014 02/24/2014 02/28/2014 03/07/2014
03/10/2014
03/11/2014

by Sterling Jewelers, Inc. Objections to R&R due by 1/21/2014. Signed by Hon. Jeremiah J. McCarthy on 1/2/14. (DAZ) (Entered: 01/02/2014)
*** MOTION TERMINATED*** 370 Motion to Strike denied as moot per 383 . (DAZ) (Entered: 01/02/2014)
384 TEXT ORDER : Defendant's motion to compel 312 is denied as moot, without prejudice to reinstatement in the event that my Report, Recommendation and Order 383 is not adopted. SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/2/14. (DAZ) (Entered: 01/02/2014)
385 OBJECTION to 383 Report and Recommendations by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service, # 2 Certificate Pursuant to Local Rule 72(c))(Batog, Konrad) (Entered: 01/21/2014)
386 TEXT ORDER: As agreed to by the parties in communications with my chambers, the remaining deadlines of the Seventh Amended Case Management Order 348 will be held in abeyance pending the resolution of the objections to my January 2, 2014 Report, Recommendation and Order 383 . SO ORDERED. Issued by Hon. Jeremiah J. McCarthy on 1/24/14. (DAZ) (Entered: 01/24/2014)
387 TEXT ORDER. Oral Argument is scheduled for 3/7/2014 at 9:00 AM before Hon. Richard J. Arcara as to 385 Objections filed by plaintiff Equal Employment Opportunity Commission to 383 Report, Recommendation and Order of Magistrate Judge Jeremiah J. McCarthy. Response papers are to be filed by 2/7/2014. Reply papers are to be filed by 2/18/2014. SO ORDERED. Issued by Hon. Richard J. Arcara on January 24, 2014. (DJD) (Entered: 01/24/2014)
388 MEMORANDUM/BRIEF re 385 Objection to Report and Recommendations Defendant's Response To Plaintiff's Objections To Magistrate Judge McCarthy's January 2, 2014 Report, Recommendation And Order by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 02/07/2014)
389 REPLY/RESPONSE to re 388 Memorandum/Brief, 385 Objection to Report and Recommendations filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Batog, Konrad) (Entered: 02/14/2014)
390 NOTICE by Sterling Jewelers, Inc. re 387 Order, Set/Reset Motion and R&R Deadlines/Hearings,, Notice Of Defendant's Assented−To Motion To Reschedule March 7, 2014 Hearing From 9:00 a.m. to 2:00 p.m. (Maatman, Gerald) (Entered: 02/24/2014)
391 TEXT ORDER. Counsel for defendant Sterling Jewelers Inc. filed 390 Motion to Reschedule time of the 3/7/2014 Oral Argument. The motion is granted. The time of the Oral Argument is changed to 2:00 PM on 3/7/2014 before Hon. Richard J. Arcara. SO ORDERED. Issued by Hon. Richard J. Arcara on February 28, 2014. (DJD) (Entered: 02/28/2014)
394 Minute Entry for proceedings held 3/7/2014 before Hon. Richard J. Arcara. Oral Argument is held as to 385 Objections filed by plaintiff Equal Employment Opportunity Commission to 383 Report, Recommendation and Order of Magistrate Judge Jeremiah J. McCarthy. Matters submitted. Decision is reserved. Appearances: Pltf − Konrad Batog and Anna Pohl; Deft − Gerald Maatman, Scott Horton and Jeffrey Klein (Court Reporter − Megan Pelka) (CSS − SS) (Entered: 03/11/2014)
392 ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 383 as filed on January 2, 2014 granting defendant Sterling's Motion for Partial Summary Judgment 336 in part, so that the claim of plaintiff EEOC of a nationwide pattern or practice of employment discrimination by defendant Sterling is dismissed, with prejudice, and further, that defendant Sterlings motion for partial summary judgment 336 , and defendants motion to strike 370 , are otherwise denied as moot. The Clerk of Court shall enter Judgment dismissing the action, with prejudice. −CLERK TO FOLLOW UP−. Signed by Hon. Richard J. Arcara on 3/10/2014. (LAS) (Entered: 03/10/2014)
393 JUDGMENT that Defendant Sterling Jewelers, Inc. motion for partial summary judgment is granted in part and the claim of Plaintiff EEOC of a nationwide pattern or practice of employment discrimination by defendant Sterling is dismissed with

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 45 of 48

03/14/2014
05/12/2014 05/12/2014 05/15/2014 05/16/2014 03/24/2015 09/24/2015 09/25/2015 12/23/2015 10/06/2016 10/06/2016 10/07/2016
10/07/2016 10/07/2016

prejudice. Further, Defendant Sterlings motion for partial summary judgment and Defendants motion to strike are otherwise denied as moot and this action is dismissed with prejudice. Signed by Clerk of Court, Michael J. Roemer on 3/11/14. (DZ) (Entered: 03/11/2014)
395 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/7/14, before Judge Richard J. Arcara. Court Reporter/Transcriber Megan E. Pelka, Telephone number (716) 364−6449. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/4/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/12/2014. (DZ) (Entered: 03/14/2014)
396 NOTICE OF APPEAL by Equal Employment Opportunity Commission re 393 Judgment, EEOC Notice of Appeal (Burstein, Jeffrey) Event modified to indicate entry is a "Notice of Appeal" Modified on 5/15/2014 (DZ). (Entered: 05/12/2014)
E−Filing Notification: 396 NOTICE OF APPEAL by Equal Employment Opportunity Commission (Burstein, Jeffrey) **Event modified to indicate entry is a "Notice of Appeal" Copy of Notice of Appeal and docket entry forwarded to the Court of Appeals (DZ). (DZ) (Entered: 05/15/2014)
Pursuant to Local Rule 12.1 of the US Court of Appeals for the Second Circuit, Forms C and D must be completed within 14 days after the filing of a notice of appeal. Forms C and D can be obtained at www.ca2.uscourts.gov. (DZ) (Entered: 05/15/2014)
397 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission.(Pohl, Anna) (Entered: 05/16/2014)
398 TEXT ORDER granting MOTION to Withdraw as Attorney 397 . The motion shall be terminated. SO ORDERED. Issued by Hon. Richard J. Arcara on 3/24/15. (LAS) (Entered: 03/24/2015)
399 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission.(Batog, Konrad) (Entered: 09/24/2015)
400 −CLERK TO FOLLOW UP−TEXT ORDER granting Motion to Withdraw as Attorney 399 by Konrad Batog. Attorney Konrad Batog is hereby removed as counsel from this matter. SO ORDERED. Issued by Hon. Richard J. Arcara on 9/25/15. (LAS) (Entered: 09/25/2015)
401 TEXT ORDER REFERRING CASE to Magistrate Judge Hon. Michael J. Roemer for full pretrial matters and to hear and report upon dispositive motions for consideration by the district judge. Signed by Hon. Richard J. Arcara on December 23, 2015. (JMM) (Entered: 12/23/2015)
402 MANDATE of USCA as to 396 Notice of Appeal filed by EEOC is HEREBY ORDERED, ADJUDGED and DECREED that the district court's order granting summary judgment is VACATED and the case is remanded for further proceedings. (KM) (Entered: 10/06/2016)
403 NOTICE of Appearance by Amos Ben Blackman on behalf of Equal Employment Opportunity Commission (Blackman, Amos) (Entered: 10/06/2016)
404 TEXT ORDER: This case is recommitted to Magistrate Judge Michael J. Roemer for full pretrial matters and to hear and report upon dispositive motions for consideration by the district judge, consistent with the original order of referral entered on December 23, 2015. SO ORDERED. Issued by Hon. Richard J. Arcara on 10/7/16. (LAS) (Entered: 10/07/2016)
405 NOTICE of Appearance by Sebastian Riccardi on behalf of Equal Employment Opportunity Commission (Riccardi, Sebastian) (Entered: 10/07/2016)
406 TEXT ORDER. Status Conference set for 11/2/2016 11:00 AM before Hon. Michael J. Roemer.

On or before 10/26/2016, plaintiff and defendant shall each submit a brief status update in light of the Second Circuit's Mandate on 10/6/2016. The update should

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 46 of 48

10/17/2016 10/18/2016
10/19/2016 10/20/2016 10/26/2016 10/26/2016 10/28/2016 10/31/2016 10/31/2016 11/02/2016
11/02/2016

include, but is not limited to, an explanation as to the status of discovery, any anticipated dispositive or non−dispositive motions to be filed and the party's position as to the benefit of any renewed mediation efforts. The status update should also include a proposed case management order. SO ORDERED. Issued by Hon. Michael J. Roemer on 10/7/2016. (RAZ) (Entered: 10/07/2016)
407 NOTICE of Appearance by Lisa H. Hernandez on behalf of Equal Employment Opportunity Commission (Hernandez, Lisa) (Entered: 10/17/2016)
408 MOTION to appear pro hac vice for Christina M. Janice ( Filing fee $ 150 receipt number 0209−2639263.) by Sterling Jewelers, Inc.. (Attachments: # 1 Admission Petition Form, # 2 Admission Sponsor Affidavit, # 3 Attorney's Oath, # 4 Civility Principles Oath, # 5 Attorney Data Base Information Form, # 6 CM/ECF Registration Form)(Maatman, Gerald) (Entered: 10/18/2016)
Verified admission to the Ohio State Bar for Attorney Christina M. Janice. (NRE) (Entered: 10/19/2016)
409 −CLERK TO FOLLOW UP−TEXT ORDER granting 408 Motion for Pro Hac Vice Admission by Christina M. Janice. Issued by Hon. Richard J. Arcara on 10/20/16. (LAS) (Entered: 10/20/2016)
410 STATUS REPORT Case Status Update by Sterling Jewelers, Inc.. (Attachments: # 1 Text of Proposed Order Eighth Amended State I Case Management Order)(Maatman, Gerald) (Entered: 10/26/2016)
411 STATUS REPORT by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order Proposed Case Management Order)(Blackman, Amos) (Entered: 10/26/2016)
412 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission.(Biltekoff, Judith) (Entered: 10/28/2016)
413 TEXT ORDER granting 412 Motion to Withdraw as Attorney. Attorney Judith Ann Biltekoff terminated. SO ORDERED. Issued by Hon. Michael J. Roemer on 10/31/2016. (RAZ) (Entered: 10/31/2016)
414 NOTICE of Appearance by Justin Mulaire on behalf of Equal Employment Opportunity Commission (Mulaire, Justin) (Entered: 10/31/2016)
415 Minute Entry for proceedings held before Hon. Michael J. Roemer. Status Conference held on 11/2/2016. Discussions held regarding discovery and motions and case management deadlines. Case Management Order to be issued. Appearances: Amos Ben Blackman, Esq., Jeffrey C. Burstein, Esq. and Justin Mulaire, Esq. appearing on behalf of plaintiff. Christina M. Janice, Esq. and Scott P. Horton, Esq. appearing on behalf of defendant. (Court Reporter FTR Gold.) (RAZ) (Entered: 11/02/2016)
416 EIGHTH AND FINAL CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)

11/03/2016 11/14/2016
11/16/2016

Motions to Compel Discovery due by 11/16/2016. Plaintiff Expert Witness ID due by 2/14/2017. Defendant Expert Witness ID due by 4/14/2017. Dispositive Motions and Daubert Motions due by 8/8/2017. Signed by Hon. Michael J. Roemer on 11/2/2016. (RAZ) (Entered: 11/02/2016)
417 NOTICE of Appearance by Liane Tai Rice on behalf of Equal Employment Opportunity Commission (Rice, Liane) (Entered: 11/03/2016)
418 TEXT ORDER. The Court will not have a pre−motion conference. Plaintiff is instructed to file the motion to compel in accordance with the Eighth and Final Case Management Order. SO ORDERED. Issued by Hon. Michael J. Roemer on 11/14/2016. (RAZ) (Entered: 11/14/2016)
419 MOTION to Compel Production of Documents Withheld by Defendant on Assertion of Privilege by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Blackman, Amos) (Entered: 11/16/2016)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 47 of 48

11/16/2016 11/16/2016
11/17/2016 11/17/2016 11/30/2016 11/30/2016
12/05/2016 12/07/2016 12/14/2016
01/03/2017 01/26/2017 01/27/2017 01/27/2017

420 MEMORANDUM in Support re 419 MOTION to Compel Production of Documents Withheld by Defendant on Assertion of Privilege filed by Equal Employment Opportunity Commission. (Blackman, Amos) (Entered: 11/16/2016)
421 DECLARATION re 419 MOTION to Compel Production of Documents Withheld by Defendant on Assertion of Privilege filed by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 11/9/2016 Maatman email, # 2 Exhibit 3/27/2013 Burstein email, # 3 Exhibit 5/30/2013 Maatman letter, # 4 Exhibit Lynch Decl., # 5 Exhibit 8/2/2013 Burstein letter, # 6 Exhibit Katz Order, # 7 Exhibit Class Award Excerpt)(Blackman, Amos) (Entered: 11/16/2016)
SCHEDULING NOTICE as to 419 Motion to Compel Production of Documents Withheld by Defendant on Assertion of Privilege. Responses due by 11/30/2016. Replies due by 12/7/2016. Oral Argument set for 12/9/2016 11:00 AM before Hon. Michael J. Roemer. (RAZ) (Entered: 11/17/2016)
SCHEDULING NOTICE as to 419 MOTION to Compel Production of Documents Withheld by Defendant on Assertion of Privilege. Oral Argument set for 12/9/2014 at 11:00 AM is RESCHEDULED to 12/14/2016 11:30 AM before Hon. Michael J. Roemer. (RAZ) (Entered: 11/17/2016)
422 RESPONSE in Opposition re 419 MOTION to Compel Production of Documents Withheld by Defendant on Assertion of Privilege filed by Sterling Jewelers, Inc.. (Maatman, Gerald) (Entered: 11/30/2016)
423 DECLARATION signed by Gerald L. Maatman, Jr. re 422 Response in Opposition to Motion filed by Sterling Jewelers, Inc. filed by Sterling Jewelers, Inc.. (Attachments: # 1 Exhibit 1 − July 9, 2013 Letter From Sterlings Counsel To EEOCs Counsel, # 2 Exhibit 2 − July 26, 2013 Letter From Sterlings Counsel To EEOCs Counsel, # 3 Exhibit 3 − August 2, 2013 Letter From EEOCs Counsel To Sterlings Counsel, # 4 Exhibit 4 − Declaration of Robert Berger)(Maatman, Gerald) (Entered: 11/30/2016)
424 TEXT ORDER: On or before December 8, 2016, defendant shall submit to chambers, for purposes of an in camera review, all documents at issue in plaintiff's motion to compel (419). Issued by Hon. Michael J. Roemer on December 5, 2016. (MLM) (Entered: 12/05/2016)
425 REPLY to Response to Motion re 419 MOTION to Compel Production of Documents Withheld by Defendant on Assertion of Privilege filed by Equal Employment Opportunity Commission. (Blackman, Amos) (Entered: 12/07/2016)
426 Minute Entry for proceedings held before Hon. Michael J. Roemer. Oral Argument held on 12/14/2016 re 419 Motion to Compel Production of Documents Withheld by Defendant on Assertion of Privilege. Motion submitted for decision. Appearances: Amos B. Blackman, Esq. and Jeffrey C. Burstein, Esq. on behalf of pltf; Gerald L. Maatman, Jr., Esq. on behalf of deft. (Court Reporter FTR Gold.) (RAZ) (Entered: 12/29/2016)
427 DECISION AND ORDER granting in part and denying in part 419 Motion to Compel. Signed by Hon. Michael J. Roemer on 1/3/2017. (RAZ) (Entered: 01/03/2017)
428 Joint MOTION for Extension of Time to Complete Discovery by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Riccardi, Sebastian) (Entered: 01/26/2017)
429 TEXT ORDER granting 428 Motion for Extension of Time to Complete Discovery. SO ORDERED. Issued by Hon. Michael J. Roemer on 1/27/2017. (RAZ) (Entered: 01/27/2017)
430 NINTH AMENDED CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)

Plaintiff Expert Witness ID due by 4/14/2017. Defendant Expert Witness ID due by 6/16/2017. Dispositive Motions due by 10/3/2017. Signed by Hon. Michael J. Roemer on 1/27/2017. (RAZ) (Entered: 01/27/2017)

Case: 1:08-cv-706 As of: 05/20/2020 06:49 PM EDT 48 of 48

03/31/2017 04/05/2017

431 MOTION for Extension of Time to File Expert report deadlines in Case Management Order by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Burstein, Jeffrey) (Entered: 03/31/2017)
432 TEXT ORDER granting 431 motion for extension of expert discovery deadlines.

The parties shall identify any expert witnesses and produce their reports pursuant to Fed.R.Civ.P. 26(a)(2) as follows: (a) plaintiff shall identify any expert witnesses and produce their report by 4/24/2017; (b) defendant shall identify any expert witnesses and produce their reports by 6/26/2017; and (c) plaintiff shall identify any rebuttal expert witnesses and produce their report by 8/18/2017.

04/06/2017 04/21/2017 05/04/2017 03/06/2020
03/09/2020
03/11/2020

All expert depositions shall be completed no later than 9/11/2017. SO ORDERED. Issued by Hon. Michael J. Roemer on 4/5/2017. (RAZ) (Entered: 04/05/2017)
433 NOTICE of Change of Address by Christina M. Janice (Janice, Christina) (Entered: 04/06/2017)
434 Joint MOTION to Approve Consent Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order Proposed Consent Decree)(Blackman, Amos) (Entered: 04/21/2017)
435 CONSENT DECREE (KM) (Entered: 05/05/2017)
436 Joint MOTION to Amend/Correct 435 Remark Amendment To And Extension Of The Term Of The Consent Decree by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order Amendment To And Extension Of The Term Of The Consent Decree)(Blackman, Amos) (Entered: 03/06/2020)
E−Filing Notification: Document contains so ordered line and should be submitted via e−mail to the assigned judge. Refer to the Administrative Guide for e−mail addresses. No action required 436 Joint MOTION to Amend/Correct 435 Remark Amendment To And Extension Of The Term Of The Consent Decree (BK) (Entered: 03/09/2020)
437 ORDER granting 436 Motion for Amendment to and Extension of the Term of the Consent Decree. Signed by Hon. Richard J. Arcara on 3/10/20. (SG) (Entered: 03/11/2020)