""<
:: Minute O~cl1tr Form (06f97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Warren K. Urbom

Sitting Judge ifQthcr than Assigned Judge

CASE NUMBER

99 C 3356

DATE

4/28/2000

CASE TITLE
MOTION:

EEOC VS, Dial Corp,
[In the followmg box (a) indICate the party fihng the mOtion, e.g., plamtlff, defendant, 3rd party piamtlff, and (b) state bnefly the nature of the motion being presented.]

DOCKET ENTRY:

(I) o

Filed motion of [ use listing in "Motion" box above,]

(2) o

Brief in support of motion due ___'

(3) o

Answer brief to motion due___, Reply to answer brief due___,

(4)

o

RulinglHearing on ___ set for ___ at ___'

(5)

o

Status hearing[heldlcontinued to] [set for/re-set for] on ___ set for ___ at ___ '

(6) o

Pretrial conference[heldlcontinued to] [set forlre-set for] on ___ set for ___ at ___'

(7) o

Trial[set for/re-set for] on ___ at ___'

(8) o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___'

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(l) 0 FRCP41(a)(2),

(10) •

[Other docket entry] Enter Memorandum and Order: Plaintiffs motion to reopen discovery for

limited purpose of conducting deposition of Jane Doe (76-1) is granted,

(11) •

[For further detail see order attached to the original minute ordeL]

No notices required, advised in open court.

No notices required.

,/ Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AD 450 form.

Copy to judge/magistrate judge.

courtroom

GL

deputy's

initials

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4f2812(}()O
GL
mailing deputy initials

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

DIAL CORPORATION,

)

)

Defendant.

)

CIVIL ACTION NO. 99 C 3356

MEMORANDUM AND ORDER ON

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION'S

MOTION TO REOPEN DISCOVERY

FOR LIMITED PURPOSE OF

CONDUCTING JANE DOE

DEPOSITION\O\F~t. \(.\1t."\-~

In accordance with the status conference held today,

~\~ \)7.

IT IS ORDERED that Equal Employment Opportunity Commission's Motion to Reopen Discovery for Limited Purpose of Conducting Deposition of Jane Doe is granted; the deposition may be taken at a time agreeable to counsel between May 22 and May 26, 2000; and it is understood that there will be no request for further discovery arising from what information is learned at the taking of Jane Doe's deposition and if a request is made, it will not be granted.

Dated April 28, 2000.

BY THE COURT

,......

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fO

 
 Minute Order Fonn (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Warren K. Urbom

Sitting Judge if Other than Assigned Judge

CASE NUMBER

99 C 3356

DATE

6/28/2000

CASE TITLE
MOTION:

EEOC VS, Dial Corp,
[In the followmg box (a) mdlcate the party fihng the motIOn, e.g., plam, tl,ff, defendant, 3rd party plal,Dt!,ff, and (b) state briefly the nature of the motion being presented.]

DOCKET ENTRY:

(I) o

Filed motion of [use listing in "Motion" box above,]

(2) o

Brief in support of motion due ___'

(3) o

Answer brief to motion due___, Reply to answer brief due___,

(4) o

RulinglHearing on ___ set for ___ at ___'

(5) o

Status hearing[held/continued to] [set for/re-set for] on ___ set for ___ at _ __

(6) o

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at ___'

(7) o

Trial[set for/re-set for] on ___ at ___'

(8) o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___'

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2),

(10) •

[Other docket entry] Enter Memorandum and Order: Defendant's motion to compel production of

expert documents (104-1) is granted,

(11) •

[For further detail see order attached to the original minute ordeL]

No notices required, advised in open court.

No notices required .

./ Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 fonn,

Copy to judge/magistrate judge.

courtroom

GL

deputy's

initials

612S/2ooo
GL mailins deputy initials

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

DIAL CORPORATION,

)

)

Defendant.

)

CIVIL ACTION NO. 99 C 3356 Judge Warren K. Urbom

MEMORANDUM AND ORDER ON THE DEFENDANT'S MOTION TO COMPEL PRODUCTION OF EXPERT DOCUMENTS
In support of its case, the plaintiff seeks to introduce the opinion of a social psychologist, Dr. Louise Fitzgerald, based on a database that she and her assistant generated through a survey of women who have worked for the defendant for the past decade or so. To date, the defelldant has not received the survey responses. Instead, the defendant has been limited to a modified version of the database created by the expert that, among other things, excludes the results of certain surveys altogether as well as certain portions of others. The defendant now seeks those responses, each one, without exception, in this motion to compel, filing 104. For the following reasons, I find that the motion should be granted.
The fact of the matter is that the defendant is entitled to examine and test the reliability of the expert's opinion. To do so, the defendant must have access to the original surveys, including, among other things, the fourteen that were excluded by the plaintiff's expert in her analysis. I find that absent such disclosure, there is no possible way for the defendant (or me, for that matter) to insure that the expert considered all the data within the survey that should have been taken into account, or that she did not rely on data that should have been taken into account. In other words, without disclosure, it is impossible for the defendant to insure that the surveys and the expert's opinions based thereon contain sufficient indicia of trustworthiness, and the plaintiff may be in danger of not being able to use the results of the survey, that is, the database that was generated from the results, or its expert's opinions in this case.
I understand that the plaintiffhas concerns that the disclosure of the original surveys might disclose the identities of the respondents. Although I sympathize, I find that it is not a compelling reason for denying the defendant the opportunity to assess the reliability of the survey responses, the database, and the expert's opinions. This does not mean that the plaintiff cannot protect the identities of the respondents, but it must do so without altering the responses in a substantive manner.

}f0

IT IS THEREFORE ORDERED that the defendant's Motion to Compel Production of Expert Documents, filing 104, is granted.
Dated June 28, 2000. BY THE COURT
~~n&K.WUr~bo-m&27k
United States Senior District Judge
2

 
 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2000 WL 33912746 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d)

Page 1

E.E.O.C. v. Dial Corp. N.D.Ill.,2000. Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
DIAL CORPORATION, Defendant. No. 99 C 3356.
Nov. 29, 2000.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO UNSEAL BRIEFS, HEARING
TRANSCRIPT, COURT ORDER AND DEPOSITION OF JANE DOE, MOTION BY VIAD FOR PROTECTIVE ORDER, MOTION BY JOHN ROE FOR PROTECTIVE ORDER, AND MOTION BY
JOHN ROE TO FILE DECLARATION URBOM, Senior J. *1 The plaintiff has moved for an order unsealing the briefs filed in response to the plaintiff's subpoena of Jane Doe, the transcript of a July 10, 2000 hearing on various motions relating to this subpoena, the order entered in the Central District of California following this hearing, and the deposition of Jane Doe. (Filing 111).
I have granted the defendant's Motion in Limine to Exclude Testimony of Jane Doe and Related Evidence, filing 131, and I have determined that the deposition of Jane Doe and related evidence are not relevant to the present case, and that considerations of undue delay also support excluding these materials. In light of that order, the plaintiff may not use any of the materials associated with the Jane Doe deposition in this case. To paraphrase the plaintiff's own argument, it is entitled to rely on admissible evidence only. The public has no interest in gaining access to information that has failed to pass the threshold tests of relevance and admissibility. Oklahoma Hosp. Ass'n v. Oklahoma Pub. Co., 748 F.2d 1421, 1425 (10th Cir.1984). See also Joy v. North, 692 F.2d 880, 893 (2nd Cir.1992) (“Discovery involves the use of

compulsory process to facilitate orderly preparation for trial, not to educate or titillate the public.”). The confidentiality of the Doe-related materials, which will not be made public at trial, should be preserved. Kehm v. Proctor & Gamble Mfg. Co., 580 F.Supp. 913, 916 n. 4 (N.D.Iowa 1983); National Polymer Products, Inc. v. Borg-Warner Corp., 641 F.2d 418, 424 (6th Cir.1981).
Since the materials relating to the Doe incident have been found inadmissible and plaintiff's motion to unseal has been denied, Viad's Motion for Protective Order (filing 121), John Roe's Motion to Continue Protective Orders (filing 126), and John Roe's Motion for Leave to File Declaration of John Roe Under Seal (filing 127), which are all supportive of maintaining the Doe materials under seal, appear to be appropriate.
IT IS ORDERED that the Plaintiff's Motion to Unseal Briefs, Hearing Transcript, Court Order And Deposition of Jane Doe, filing 111, is denied. Viad's Motion for Protective Order (filing 121), John Roe's Motion to Continue Protective Orders (filing 126), and John Roe's Motion for Leave to File Declaration of John Roe Under Seal (filing 127) are granted.
N.D.Ill.,2000. E.E.O.C. v. Dial Corp. Not Reported in F.Supp.2d, 2000 WL 33912746 (N.D.Ill.)
END OF DOCUMENT

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

 
 JRN-21-2009 (WED) 09: 58

P 002/005

IN THE UNITED STATES DTSTRTCT COURT

FOR TI-JE NORTHERN DISTRICT OF lu1Nors ,.

EASTERN DTVISION

.. ,

J;

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.....

EQUAL EMPLOYMENT OPPORTUNITY COMM.ISSION,
Plaintiff,

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,

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CIVlL9'9t;" 3356

v. .orAL CORPORATTON,
Defendant.

COMPl..HT".!IW r]nl-l:tU'1'7~'T-r~'AC.THJ'"I..E; FH~ ,J.JU.'".".,D,,I,.lG..i,'E.ELAE~<V:r'TIt_pN./'1T
nm.y TRIAL I)EMA@

TI1is is an action under Tille VII of the Civil Rights Act 'of 1964, as amended, 42 U.S.C. §

2000e et seq. ("'Title VII"), and Title 1ofthe Civil Rights Act of 1991, 42 U.S.c. § 1981a, to

com:ct llnlawfl.ll employment practices on the basis of sex and to provide appropriate relief to

_ _ _ _--'B_cvcrly Allen, a former emplQyee of Dial COl]?Qr<.l.tion and to a class of female employees who
were adversely affected by such practices. Plaintift~ the U.S. Equal Employment Opportunity Conunission (the "Commission"), eoMonds Defendant, Dial Corporation, has ~ngaged in a

pattem and practice of discrimination against Beverly Allen and class of other female employees

because oCthcir sex, by subjecting them to a hostile and abusive work envirollment and by

failing to take prompt remedial action intended to elimi.nate the harassment after the Defendant

became aware of such behavior, in violation of Title VIr.

JURISDICTION AND VENUE

l.

Jurisdiction of tbiR C0l11i is invoked pursuantto 28 U.S.C. §§ 451, 1331, 1337,

l343 and 1345. This action is authorized and instituted pursuanl lo Section 70G( f)(l) and (3) and

---------------~-

JRfl-21-2009 (WED) 09: 58

P 003/005

Section 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. § 2000e-5(t)(l)
and C., and -6, and Section 102 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 the Northern District of

Illinois, Eastern Division.

E...ARTTES

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 Section 706(1)(1) and (3) of Title

VIr, 42 U.S.C. § 2000e-5(f)(l) and (3). 4. At all relevant times, Defendant has continuously been and is now doing business
in the State oflllinois and the City of Montgomery and has continuously had at least fifteen (15)

employees. 5.

At all relevant times. Defendant has continuously been an employer engaged in an

industry affecting commerce within the meaning of Sections 70l(h), (g) and (11) of Title VII, 42

U.S.c. § 2000e-(b), (g) and (h). STATEMENT OF C.LAIMS
6. More than thirty days prior to the institution ofthis lawsuit, Allen filed a charge with the Commission alleging violations of Title VII by Defendant. All conditions precedent to

the institution of this lawsuit have been fulfi lied. 7. Since at least July 1988, Defendant has engaged in a pattern and practice of
unlawful employment practices at its facilities. in violatlon of Section 703(a)(1) and Section 707 of'Jil1e VIl, 42 U.S.C. § 2000e-2(a)(l) and -6. These practices include, but are not limited to,
2

JRN-21-2009(WED) 09: 58

P,004/005

engaging in intentional discrimination against Allen and a class offemale employees by

subjecting them to sexual and sex-based harassment and failing to take prompt remedial action

intended to eliminate the harassment after the Defendant became aware of the illegal behavior,

all in continuing violation of Section 703(a) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a)

and -6. 8.

The effect ofthc practices complained orin paragraph seven (7) above has been to

deprive Allen and a class offemale employees of equal employment opportunities and otherwise

adversely affect their status 'as an employee because of their sex. 9. The unlawful employment practices complained of in paragraph seven (7) above

were and are intentional. 10. The unlawful employment practices complained of in paragraph seven (7) above

were and are done with malice or with reckless i.ndifference, to the federally protected rights of

Allen and a class offemale employees. PRAYER 'FQR RELlEF

WHEREFORE, the Commission respectfully requests that this Court:

A. Grant a pennanent injunction enjoining Defendant, Dial Corporation, its officers,

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

any employment practice which discriminates on the basis of sex;

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

provide equal employment opportunities for women, and which eradicate the effects ofits past

and present unlawful employment practices;

C. Order Defendant to make whole Beverly Allen and a class of female employees

by providing appropriate back pay with pre-judgment interest, in amounts to be determined at

3

JRt1-21-2oo9 (WED) 09: 59

P.005/oo5

trial, and other affirmative relicf necessary to eradicate the effects ofits unlawful employment

practices;

D. Order Defendant to make whole Allen and a class offemale employees by

provi ding compensation for past and future pecunia1Y losses resulting from the unlawful

employment practices described above; E. Order Defendant to make whole Allen and a class offemale employees by

providing compensation for past and future non-pecuniary losses, including emotional pain,

suffering, inconvenience. loss of enjoyment oflife and humiliation;

F. Order Defendant to pay Allen and a class of female employees punitive damages

for its malicious and/or reckless conduct described, ill amounts to be detennined at trial;

G. Order Defendant and its successors to provide training to its officers. managers

and employees regarding sexual harassment in the workplace;

H. Grant such further relief as the Court deems necessary and proper in the pUblic

interest; and

T.

Award the Commission its costs in this action.

.TIJRY TRIAl. DEMAND
The Commission reqlll~sts a jury trial on all questions of fact raised by its Complaint.

4

JAf~-21-2009 (WED) 09: 59

P 006/006

Respectfully submitted,
C.GREGORYSTEWART General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~Nlilloelle_B..I.c.mn.@'____

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Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
500 West Madison Street, Suite 2800
Chicago, Illinois 60661 (312) 353~7303

5

 
 Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
Plaintiff, vs. THE DIAL CORPORATION,
Defendant.

)

)

)

)

No. 99 C 3356

)

)

Judge Warren K. Urbom

)

)

)

)

NOTICE OF FILING

TO: Michael A. Warner Seyfarth Shaw 55 East Monroe Street Suite 4200 Chicago, IL 60603-5803

John C. Hendrickson U.S. Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661

PLEASE TAKE NOTICE that on May 24,2005, the undersigned filed with the Clerk of the United States District Court for the Northern District of Illinois, Eastern Division, SECONDYEAR REPORT OF THE CONSENT DECREE MONITORS TO THE PARTIES AND TO THE COURT, a true and correct copy of which is attached hereto.

George F. Galland, Jr. 14 West Erie Street Chicago, Illinois 60610 (312) 751-1170

Respectfully submitted,
S7eatP1~
George F. Galland, Jr., One of the Consent Decree Monitors

Reginald E. Jones, Esq. Coudert Brothers, LLP 1627 I Street, NW, 11th Floor Washington, D.C. 20006

Nancy Kreiter 380 Sheridan Rd. Winnetka, IL 60093

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 2 of 11

F I L E D SECOND-YEAR REPORT OF THE CONSENT DECREE MONITORS TO THE PARTIES AND THE COURT

George F. Galland, Jr. Reginald E. Jones Nancy B. Kreiter

MAY 2 4 2005 f 0
. .IbH" .A.e..I. Iw,;r",'.f.Ir'ti~Ulit

We were appointed as Decree Monitors pursuant to the Consent Decree agreed to

between the Equal Employment Opportunity Commission and Dial Corporation in case no. 99-C

3356 in the United States District Court for the Northern District of Illinois. This lawsuit alleged

a pattern and practice of sexual harassment of employees at Dial's plant in Montgomery, Illinois,

near Aurora.

Paragraph 44 of the Decree provides:

Within two (2) months after the appointment of the Decree Monitors, they will: (i) evaluate all existing employment policies, procedures, and practices that are related to the objectives contained in the Statement of Intolerance of Sexual Harassment and this Decree; and (ii) after consultation with EEOC and Dial, make recommendations for any changes to such existing policies, procedures and practices that the Decree Monitors believe is necessary or appropriate. The Decree Monitors shall report their findings and recommendations to EEOC and Dial.

On August 29, 2003, we issued to Dial and to the EEOC the Two Month Report required

by paragraph 44. The present report will refer to findings from that Two Month Report as

appropriate.

Paragraph 47 of the Decree provides:

Within one (1) year after appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices, and shall submit a written report to EEOC, Dial and the Court setting forth the following information:

(i) an assessment of whether Dial has successfully implemented each specific policy/practice agreed upon in paragraph 39 above;

(ii) for each specific policy/practice that has not been successfully implemented, a statement discussing the reason for Dial's failure to implement such change;

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 3 of 11
(iii) an evaluation of the impact of the specific changes made pursuant to this Decree; (iv) an assessment of the effectiveness of Dial's policies and practices for the
achievement of Dial's Statement of Intolerance of Sexual Harassment; (v) recommendations for any changes to existing practices, policies or programs or
any additional policies, practices or programs that the Decree Monitors deem necessary or appropriate for achieving Dial's Statement ofIntolerance of Sexual Harassment and the terms of this Decree; and (vi) timetables for implementation and completion of compliance with any of the recommendations, subject to the terms of this Decree. We issued the one-year report required by this paragraph on May 26, 2004. We found Dial in compliance with all significant obligations under the Consent Decree. We found that "All evidence available to us shows that sexual harassment and related retaliation are not significant problems at the plant at the present time, and that if incidents do occur and are brought to management's attention, they will be dealt with promptly and appropriately." We made certain recommendations for further improvements. Paragraph 47 of the Decree, after the provisions quoted above, provides that "At the end ofthe second year and then again at the end of the duration of this Consent Decree, the Decree Monitors shall submit a report to EEOC, Dial and the Court setting forth the same information described herein." The present report is that second-year report. This will be a much shorter report than our first two reports, because all available evidence shows that Dial is fully in compliance with the Decree, and there has been no evidence over the past year of any significant sexual harassment problem in the plant. Given the lack of any evidence of such a problem, and the continuing evidence that Dial has dealt swiftly and appropriately with the occasional incident involving conduct that might be deemed sexual
2

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 4 of 11
harassment, the Monitors elected not to conduct the full-scale interview process for this report that was conducted for the previous report. Our present intention is to conduct such interviews in connection with the final report we are required by the Decree to prepare.
I. DIAL'S COMPLIANCE WITH SPECIFIC OBLIGATIONS FROM
PARAGRAPH 39 OF THE DECREE
Almost all of the changes required by ~39 were previously made, as we described in our previous reports, and there is therefore no need to comment further on these matters. We will touch on a few matters that were the subject of comment in our First Year Report.
(I) ~39(b)(iii) imposes a best-efforts requirement ofthree weeks to complete investigations of complaints of sexual harassment and retaliation, with another seven days to prepare findings of the result of the investigation and remedial action proposed. Dial met this time limit in the two investigations it conducted since we issued our one-year report.
(2) ~39(b)(iv) requires Dial to allow complainants who are dissatisfied with the disposition of a complaint the opportunity to appeal to the "Complaint Monitor." In one of the two cases referred to above, Dial imposed a written warning on the accused employee, and advised the complainant of the right to appeal, which the complainant declined to do. (While Dial's investigation and response to this complaint was entirely in line with the Decree, there was a communications error that resulted in Dial not informing the Complaint Monitor about the matter until the Monitors found out about it through other means.) In the other case, Dial terminated the employee. Dial interpreted the Decree not to require advice to the complainant of the right to appeal, since the purpose of the Decree was clearly to give a complainant the right to argue that Dial's discipline was insufficient, not to argue that the discipline was excessive. We
3

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 5 of 11
concur with this interpretation.
(3) Decree ,39(clei) provides:
Dial agrees that it shall impose discipline - up to and including termination, suspension without pay, or demotion - upon any supervisor or manager who engages in sexual harassment or tolerates any such conduct in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding concerning any such conduct. Dial shall communicate this policy to all of its supervisors and managers.
No accusations of sexual harassment against supervisors or managers have been made
since the Decree took effect.
(4) Section 39(b)(ii) requires Dial to continue to advise all managers and supervisors
of their duty to monitor their work areas to ensure employees' compliance with the No
Harassment or Retaliation Policy, and to report any incidents and/or complaints of sexual
harassment and/or retaliation of which they become aware. In our one-year report, we
recommended
that Human Resources provide ongoing guidance to supervisors to conduct activities in team meetings, at least on a quarterly basis beginning no later than July 1,2004, that promote awareness of the No Harassment or Retaliation policy and to conduct proactive measures to prevent sexual harassment. To prevent such activities from turning into a rote or perfunctory exercise that never varies in content, Human Resources should become involved in planning the activities that supervisors will be asked to conduct and should take steps to assure that supervisors carry out the activities as planned on a reasonable uniform plantwide basis. We request that the Human Resources Director apprise us of each quarter's guidance to supervisors and provide verification of supervisor compliance.
Dial accepted this recommendation and has complied with it, designing a short refresher course
outline for supervisors' use in team meetings that were conducted in September and October
2004, December 2004, and March 2005. The Monitors received a copy of the training materials
4

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 6 of 11
and verification of supervisor compliance in each quarter. Dial plans to continue to implement this recommendation. In considering what material to use in forthcoming team meeting sessions, we again recommend that Dial vary the material. Dial wisely makes use of the "red, yellow, and green zones" theme from its on-line training. However, all of the examples used to date were obvious "red zone" violations of its anti-harassment policy. In upcoming repetitions of this team-meeting exercise, Dial should consider giving somewhat more challenging examples to provoke more in-depth discussion among attendees.
(5) In 'Il39(c)(iii), Dial agreed to "use in its supervisor appraisal process, an evaluation ofthe supervisor's handling of equal employment opportunity ("EEO") issues, and to link such evaluations directly to supervisor salarylbonus structure." In our one year report, we asked Dial to provide us, by the end of the next evaluation cycle, with copies of specific material that comments in any manner on specific supervisors' performance or nonperformance in the area of EEO (names of evaluated employees should be deleted). In response, Dial provided us with several such examples, all of which reflected favorable evaluations of EEO commitment.
(6) Under 'Il39(d)(i), Dial must continue to provide mandatory sexual harassment prevention training annually to all supervisors at the plant, to provide training to all new employees during employee orientation, to provide training to all "senior management officials," and to all Dial employees who are to be assigned to work at the plant, before their assignment begins.
In our one-year report, we recommended that the company immediately follow up to assure that on-line training is given to employees who for one reason or another, such as absence or technological barriers, missed the first round, since we became aware through interviews of
5

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 7 of 11
people who did miss the training for such reasons. Dial complied with this recommendation and notified us of the results.
Our one-year report also recommended that Dial design a refresher version of sexual harassment prevention training to be given every one to two years. We stated:
Providing refresher training was supported by the vast majority of the employees we interviewed and seems particularly appropriate given the difficulty many people have in remembering even the fact of prior training in this area. The length and format of such refresher training is left to the company in light of its other training programs and logistics. Strong consideration should be given to including live discussion in such refresher training, since the ability to ask questions is the main missing ingredient from anyon-line training format. We request that Dial advise us of plans for such refresher training, as well as the opportunity to review the content. Dial agreed with this recommendation and specifically has agreed to provide refresher training for nonsupervisory employees in the fall of2005. We again recommend that strong consideration be given to including live discussion in the next version of that training. Since our final report will be issued November I, 2005, we would renew this request to be advised prior to our departure of whether Dial plans to include oral training or whether it will rely only on on-line training, and to allow us to review the content ofthe proposed training. We would request to be notified of these matters by September I, 2005 if possible. Decree ~39(d)(i) expressly requires training for all new hires during employee orientation. In connection with this obligation, our one-year report noted that "Dial complies by having its Human Resources Manager review the No Harassment or Retaliation Policy with new hires during the orientation process," and recommended that "henceforth Dial give the appropriate online course to new hires and employees transferred to the Montgomery plant who have not taken that course before." Dial has complied with this recommendation.
6

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 8 of 11
Decree 'Il39(d)(i) expressly requires mandatory sexual harassment prevention training annually for all supervisors at the plant. In fall 2004 Dial complied with this requirement by repeating the on-line course for supervisors and has agreed to provide the content of the 2005 annual supervisory training course for our review prior to presentation. As in our prior discussion of the refresher training being designed for nonsupervisory employees in the fal of 2005, we recommend that strong consideration be given to including live discussion in the next version of supervisory training. Since our final report will be issued November I, 2005, we would renew this request to be advised prior to our departure of whether Dial plans to include oral training or whether it will rely only on on-line training, and to allow us to review the content of the proposed training. We would request to be notified of these matters by September I, 2005 if possible.
(7) We also made one recommendation in the one-year report not specifically covered by the Decree. We commented on Dial's internal policy discouraging romantic relationships between supervisors and subordinates and recommended that Dial take, within 30 days, whatever concrete steps it deemed necessary to disseminate and reinforce to its supervisors the existence and importance of this policy, and to inform us of the actions taken. Dial provided an acceptable response to this recommendation.
II. THE CURRENT CLIMATE IN THE PLANT WITH RESPECT TO CONTROL OF SEXUAL HARASSMENT The Decree requires our report to assess "the effectiveness of Dial 's policies and practices
for the achievement of Dial's Statement ofIntolerance of Sexual Harassment." In our one-year report, we stated that "All evidence available to us shows that sexual
harassment and related retaliation are not significant problems at the plant at the present time,
7

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 9 of 11
and that if incidents do occur and are brought to management's attention, they will be dealt with promptly and appropriately." There is every reason to believe that this remains the case.
First, there have been almost no formal complaints to management about sexual harassment over the past year, which is good evidence that matters are firmly under control. One case involved an inappropriate sexual comment; the other involved use of the company email to send inappropriate materials to a coworker.
Second, management in both cases reacted appropriately to the situations that were brought to its attention.
Third, while we did not conduct interviews in connection with this report, we did send a letter to all employees offering them the opportunity to be interviewed by us by phone in their homes if they wished. Only one employee took advantage of this offer, and the information provided by that employee was highly encouraging as to the present state of affairs in the plant.
The experience of the second year of the Decree is consistent with the experience of the first year. Cumulatively, in the two years thus far of the Decree, there have been only three incidents of violation of the anti-harassment policy brought to management's attention, and no complaints have been made to any outside agency during that period of sexual harassment. Of the incidents over the two year period, two resulted in discharge of the accused employee.
III. SUMMARY The specific affirmative steps required by the Decree have long since been taken or are
continuing to be taken in compliance with the Decree. Given the ongoing compliance of Dial with the Decree and the satisfactory situation in the plant from the point of view of control of
8

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 10 of 11
sexual harassment, nothing beyond these minimal recommendations and requests are needed in this report. We will review the situation in more detail in our final report.
<L<:l5lRfj GEORGE F. GALLAND, JR.

May 20, 2005

~~ ~ v:~t hAJ
NANCY B. KREITER

9

Case 1:99-cv-03356 Document 441 Filed 05/24/2005 Page 11 of 11
CERTIFICATE OF SERVICE The undersigned, under penalty of perjury, certifies that on May 23, 2005, a copy of the foregoing SECOND-YEAR REPORT OF THE CONSENT DECREE MONITORS TO THE PARTIES AND TO THE COURT was served on the above attorneys by messenger.

 
 E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

156 F.Supp.2d 926 United States District Court,
N.D. Illinois. Eastern Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
DIAL CORPORATION, Defendant.
No. CIV. A. 99 C 3356. | Aug. 14, 2001.
Equal Employment Opportunity Commission (EEOC) brought Title VII action on behalf of individual and class of female employees against employer alleging pattern or practice discrimination based on sexual harassment. Employer moved for summary judgment. The District Court, Urbom, Senior District Judge, held that: (1) administrative charge process was not circumvented; (2) EEOC satisfied its statutory obligation to conciliate; (3) 300-day limitations period did not bar action; (4) summary judgment was precluded as to whether class members were subject to hostile work environment and whether employer was liable for harassment by coworkers or supervisors; (5) bifurcation of action did not violate employer’s Seventh Amendment right to jury trial; and (6) EEOC could not expand its theory of recovery to include gender discrimination claims.
Granted in part and denied in part.
Attorneys and Law Firms
*929 Jean Powers Kamp, John C. Henderickson, John A. Knight, Noelle Christine Brennan, U.S. E.E.O.C., Chicago, IL, Ines M. Monte, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Chicago, IL, for U.S. E.E.O.C.
Alexis MacDowall, Winston & Strawn, Chicago, IL, Daniel V. Kinsella, Rooks, Pitts & Poust, Chicago, IL, for Jane Doe.
Kimball Richard Anderson, T. Alexis MacDowall, Winston & Strawn, Chicago, IL, James A. Burstein, *930 Ellen E. McLaughlin, Condon A. McGlothlen, Laura Anne Lindner, David Elliot Metz, Robert L. Jackson, III, Sheldon Leigh Jeter, Seyfarth Shaw, Chicago, IL, for Dial Corp.

Opinion
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
URBOM, Senior District Judge.
This case is now before me on a motion for summary judgment filed by the defendant, The Dial Corporation (hereinafter Dial). Filing 70. In its complaint, the plaintiff Equal Employment Opportunity Commission (hereinafter EEOC) alleges that Dial has engaged in a pattern or practice of tolerating sexual harassment and “sex-based” harassment at its Aurora, Illinois, manufacturing plant since at least July of 1988. Filing 1 ¶ 7. The EEOC seeks equitable relief, as well as compensatory and punitive damages for those women affected by Dial’s unlawful employment practices. Id. ¶¶ A-I. Dial has moved for summary judgment with respect to both the pattern-or-practice and individual claims. After carefully reviewing the materials submitted by both parties, I find that Dial’s motion will be granted in part and denied in part.

I. Background
Beverly J. Allen, a Dial employee at the Aurora manufacturing plant, filed a Charge of Discrimination with the EEOC on February 5, 1996. Charge of Discrimination, Allen Dep. at Ex. 12 (filing 98, tab A). In this charge, Allen alleged that from 1992 until December of 1995, she had been sexually harassed by a co-worker, Paul Jones, and that she had been retaliated against for complaining of such harassment to her supervisor.1 Id. In accordance with 42 U.S.C. § 2000e-5(b), the EEOC notified Dial of the charge and began investigating Allen’s allegations.

1

Allen had first sought the assistance of the EEOC a few

months earlier. On November 23, 1995, she completed

a Charge Questionnaire, alleging that she had been

sexually harassed by Paul Jones. Charge Questionnaire,

Allen Dep. at Ex. 13 (filing 98, tab A). According to

Allen, a supervisor was also harassing her, telling her

that “[she] deserve [d] all [she] got from Paul.” Id.

1

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
During her deposition, Allen explained that she did not administratively pursue her claim at that time because she was told by the EEOC that her allegations were insufficient to support a charge. Deposition of Beverly Allen at 183:13-184:11 (filing 176, tab 2).
On March 16, 1998, the EEOC issued a Letter of Determination finding that it had “reasonable cause to believe that [Dial] discriminated against females, as a class, including [Beverly Allen], in that they were subjected to sexual harassment and when they complained [Dial] failed to take prompt, effective action.” Letter of Determination, Banas Decl. at Ex. 1 (filing 98, tab Z). The parties then engaged in efforts to conciliate the claims. These efforts failed, and the EEOC subsequently filed suit on May 20, 1999.
In its complaint, the EEOC alleges that “[s]ince at least July 1988, [Dial] has engaged in a pattern and practice of unlawful employment practices at its facilities, in violation of Section 703(a)(1) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a)(1) and -6.” Complaint ¶ 7, filing 1. According to the EEOC:
These practices include, but are not limited to, engaging in intentional discrimination against Allen and a class of female employees by subjecting them to sexual and sex-based harassment and failing to take prompt remedial action intended to eliminate the harassment after [Dial] became aware of the illegal behavior, all in continuing violation of Section 703(a) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a) and -6.
*931 Id. In terms of equitable relief, the EEOC seeks (1) a permanent injunction barring Dial from engaging in discrimination on the basis of sex; (2) an order directing Dial “to institute and carry out policies, practices and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices”; (3) an order directing Dial to provide sexual harassment training to its officers, managers, and employees; and (4) backpay, with prejudgment interest, for the class of female employees affected by Dial’s unlawful practices, including Beverly Allen. Id. ¶¶ A, B, G, C. The EEOC also seeks

compensatory and punitive damages on behalf of Allen and the other class members, as well as its costs. Id. ¶¶ D, E, F, I.
II. Standard for Summary Judgment
A motion for summary judgment shall be granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). A “material” fact is one “that might affect the outcome of the suit under the governing law ....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine” issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial,” and “must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Anderson, 477 U.S. at 256, 257, 106 S.Ct. 2505 (citations omitted) (citing FED. R. CIV. P. 56(e)).
III. Analysis
In moving for summary judgment, Dial asserts that the “EEOC’s pattern and practice claim is deficient in numerous respects, any one of which entitles Dial to judgment as a matter of law.” Defendant’s Motion for Summary Judgment ¶ 9, filing 70; Defendant’s Memorandum of Law in Support of its Motion for Summary Judgment [hereinafter Defendant’s Memorandum] at 1, filing 94 (contending that “[the] EEOC’s case fails procedurally and substantively as a matter of law”). According to Dial, these “deficiencies”
2

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
include the following: (1) the EEOC’s attempt to base its pattern-or-practice claim on Beverly Allen’s individual charge circumvents Title VII’s administrative charge process; (2) Allen’s individual charge does not provide a sufficient basis for the EEOC’s pattern-or-practice claim because (a) the charge was untimely, and (b) her claim fails on the merits as a matter of law; (3) the pattern-or-practice theory of Title VII liability is not viable in sexual harassment cases generally or in this case specifically; (4) the litigation model proposed by the EEOC violates Dial’s rights under the Seventh Amendment; (5) even if the EEOC’s theory is cognizable under Title VII, the agency cannot show that Dial had a “standard operating procedure” of tolerating sexual harassment; (6) all or most of the individual claims for relief must fail because (a) the claims are untimely, (b) the conduct complained of does *932 not rise to the level of actionable sexual harassment, and/or (c) there is no basis for holding Dial liable for the conduct; (7) those class members who have executed valid Title VII releases cannot recover damages; and (8) even if there is some question as to the validity of these releases, the doctrine of ratification bars such class members from recovering damages. Defendant’s Motion for Summary Judgment ¶ 9(a)-(h), filing 70. After first reviewing the elements of a hostile environment sexual harassment claim, as well as Title VII’s general framework, I will discuss each of Dial’s arguments below.
A. Elements of a Hostile Environment Sexual Harassment Claim
Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin ....” 42 U.S.C. § 2000e-2(a)(1). It is well-settled that “sex discrimination” includes sexual harassment that is so “severe or pervasive” as “ ‘to alter the conditions of [the victim’s] employment’ ” and create a hostile working environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (citation omitted); EEOC v. Mitsubishi Motor Mfg. of America, Inc., 990 F.Supp. 1059, 1070-71 (C.D.Ill.1998). In order to establish a prima facie case of hostile environment sexual harassment, a plaintiff must demonstrate the following:

(1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff’s work performance in creating an intimidating, hostile or offensive working environment ...;2 and (4) there is a basis for employer liability.

2

In Parkins, the Seventh Circuit stated that the work

environment also had to “affect[ ] seriously the

psychological well-being of the plaintiff”. Parkins v.

Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032

(7th Cir.1998). The Supreme Court, however, has

determined that Title VII does not require “concrete

psychological harm.” Harris v. Forklift Sys., Inc., 510

U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)

(“So long as the environment would reasonably be

perceived, and is perceived, as hostile or abusive, ...

there is no need for it also to be psychologically

injurious.” (citing Meritor, 477 U.S. at 67, 106 S.Ct.

2399)). Thus, I have excluded the “serious

psychological injury” component from the prima facie

case. See, e.g., Lahey v. JM Mort. Servs., Inc., No. 99 C

4074, 2000 WL 420851, at *3 n. 6 (N.D.Ill. April 18,

2000).

Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir.1998) (citations omitted).
In determining whether the alleged sexual harassment is severe or pervasive enough to constitute a hostile work environment, courts must consider the “totality of the circumstances.” See Meritor, 477 U.S. at 69, 106 S.Ct. 2399; Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Factors that may be relevant in making this determination include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23, 114 S.Ct. 367. In addition, the conduct at issue must be tested against both an objective and subjective standard. See Meritor, 477 U.S. at 67-68, 106 S.Ct. 2399; Harris, 510 U.S. at 22, 114 S.Ct. 367. Thus,
3

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
“the trier of fact must find both that an objectively reasonable person *933 would find the environment hostile and that the victim, herself, subjectively perceived the environment as hostile.” Mitsubishi, 990 F.Supp. at 1071 (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367); see also Faragher v. Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (“[A] sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.”).
An employer’s liability for hostile environment sexual harassment depends upon whether the alleged harassers were supervisors or co-employees. Parkins, 163 F.3d at 1032. With respect to co-worker harassment, “employers are liable only when they have been negligent either in discovering or remedying the harassment.” See Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.1997) (citations omitted); see also Zimmerman v. Cook County Sheriff’s Dep’t, 96 F.3d 1017, 1018 (7th Cir.1996) (“The liability of an employer for sexual harassment by one nonsupervisory employee of another is not strict. The plaintiff must prove that the employer was negligent in having failed to discover and prevent it.” (citations omitted)). Where the harasser is a supervisor, an employer’s liability is automatic “when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (explaining that “[n]o affirmative defense” is available in such cases); Faragher, 524 U.S. at 807, 118 S.Ct. 2275 (same). However, in those cases where the employee has not suffered any tangible job consequences, the employer may avoid liability by demonstrating “(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Johnson v. West, 218 F.3d 725, 730 (7th Cir.2000).
B. Title VII’s General Framework
Title VII, as originally drafted, limited the EEOC’s role in eliminating unlawful employment practices to “ ‘informal

methods of conference, conciliation, and persuasion.’ ” General Tel. Co. v. EEOC, 446 U.S. 318, 325, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980); see also EEOC v. Harvey L. Walner & Associates, 91 F.3d 963, 968 (7th Cir.1996) (“The goal of Title VII, as originally drafted, was to encourage the private settlement of claims as an informal means toward the end of eliminating discrimination without overburdening the courts or EEOC.”). As a result, “[c]ivil actions for enforcement upon the EEOC’s inability to secure voluntary compliance could be filed only by the aggrieved person.” General Tel. Co., 446 U.S. at 325, 100 S.Ct. 1698 (citing § 706(e), 78 Stat. 260). Recognizing that “these informal mechanisms were proving unequal to the task,” Congress expanded the EEOC’s enforcement powers with its 1972 amendments, which authorized the EEOC to initiate civil actions in federal court against private employers reasonably suspected of violating Title VII. See Walner, 91 F.3d at 967-68; General Tel. Co., 446 U.S. at 325-26, 100 S.Ct. 1698; 42 U.S.C. §§ 2000e-5(f), -6(e). These amendments, however, “retained the previous emphasis on administrative resolution and conciliation of charges.” EEOC v. American Nat. Bank, 652 F.2d 1176, 1185 (4th Cir.1981); see 42 U.S.C. § 2000e-5(b). Thus, before the EEOC may bring suit in federal court against a private employer, there must be a charge *934 filed with the EEOC, notice of the charge served on the employer, an investigation by the EEOC, a determination of reasonable cause, and an effort at conciliation. American Nat. Bank, 652 F.2d at 1185; 42 U.S.C. § 2000e-5(b).
Section 706 of Title VII provides that a charge may be filed “by or on behalf of a person claiming to be aggrieved, or by a member of the Commission ....” 42 U.S.C. § 2000e-5(b). Such a charge must be filed within a certain time frame after the alleged discrimination has occurred. See id. § 2000e-5(e)(1). In deferral states, such as Illinois, the charge filing period is 300 days, or 30 days after the charging party receives notice that the state or local agency has terminated its proceedings, whichever is earlier. See id.; Walner, 91 F.3d at 968. The timely filing of an EEOC charge is not, however, “a jurisdictional prerequisite to filing a federal lawsuit, but rather, is more akin to a statute of limitations and subject to waiver, estoppel, and equitable tolling under appropriate circumstances.” Hentosh v. Herman M. Finch Univ., 167 F.3d 1170, 1174 (7th Cir.1999) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)); see also Mirza v. Department of Treasury, 875 F.Supp. 513, 517 (N.D.Ill.1995) (“These administrative filing requirements [of Title VII and the ADEA] are not jurisdictional prerequisites which pose an
4

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

absolute bar to suit, but rather ‘conditions precedent,’ similar to statutes of limitations, which are subject to equitable modification.” (citing Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir.1991))).
After a charge has been filed, the EEOC notifies the employer of the charge and begins an investigation. 42 U.S.C. § 2000e-5(b), (e)(1) (requiring notice to be served on the employer within ten days after the charge is filed). The purpose of this investigation is to ascertain whether “there is reasonable cause to believe that the charge is true ....” Id. § 2000e-5(b). If the EEOC determines that reasonable cause does, indeed, exist, it must then engage in efforts to eliminate the offending practice through “conference, conciliation, and persuasion.” Id. Should the EEOC’s efforts to conciliate fail, it may then file a civil action in federal court. Id. § 2000e-5(f).
Finally, § 707 of Title VII grants the EEOC authority “to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission.” Id. § 2000e-6(f).3 Thus, the EEOC may institute a “pattern-or-practice” case on its own initiative, i.e., by the filing of a Commissioner’s charge. Such cases must “be conducted in accordance with the procedures set forth in [42 U.S.C. § 2000e-5].” Id.

3

The authority to bring pattern-or-practice suits was

originally vested in the Attorney General. See Civil

Rights Act of 1964, § 707.

C. Pattern-or-Practice Liability
1. Compliance with Title VII’s Administrative Requirements
[1] In moving for summary judgment, Dial first argues that the EEOC’s attempt to base its pattern-or-practice claim on Beverly Allen’s charge circumvents Title VII’s administrative charge process. According to Dial, it was not properly notified of the class-based allegations against it until the EEOC issued its Letter of Determination. In addition, Dial asserts that with the exception of Beverly Allen, it was not informed of either the identity of the claimants or the facts underlying their claims at any stage

during the administrative process, and was therefore denied an opportunity to engage in “meaningful conciliation.” *935 See Defendant’s Memorandum at 7, 9, filing 94. Thus, Dial concludes, EEOC’s pattern-or-practice claim must fail.
In supporting its argument, Dial first directs me to the “scope-of-the-charge” doctrine, which prevents plaintiffs from basing a Title VII case on claims that are not “like or reasonably related to” the charge allegations. Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994); see EEOC v. United Parcel Serv., 94 F.3d 314, 318 (7th Cir.1996); EEOC v. World’s Finest Chocolate, Inc., 701 F.Supp. 637, 640 (N.D.Ill.1988). As a result of this doctrine, Dial asserts, “no lawsuit alleging a class-wide Title VII violation can proceed unless the employer was given notice of such a violation in the administrative charge.” Defendant’s Memorandum at 7, filing 94 (citing Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127-28 (7th Cir.1989); Maclin v. Northern Telecom, Inc., No. 95 C 7485, 1996 WL 495558, at *3 (N.D.Ill. Aug.28, 1996); White v. Mercy Hosp. & Med. Ctr., No. 93 C 7097, 1994 WL 249545, at *2 (N.D.Ill. June 7, 1994); Latuga v. Hooters, Inc., No. 93 C 7709, 1994 WL 113079, at *2 (N.D.Ill. April 1, 1994); Hoffman v. R.I. Enters., Inc., 50 F.Supp.2d 393, 401 (M.D.Pa.1999)). In this case, Beverly Allen’s charge does not allege that any other female employees at Dial were sexually harassed. Dial also notes that on the “Notice of Charge of Discrimination” form that the EEOC sent to Dial along with Allen’s charge, the box labeled “claims to be aggrieved” was marked, while the box labeled “is filing on behalf of another” was not marked. Finally, Dial also contends that the EEOC’s investigation was not “broad-based,” as it was limited to Allen’s “narrow charge allegations.” Defendant’s Memorandum at 8, filing 94. Thus, Dial concludes, “[b]ecause Allen’s charge and [the] EEOC’s investigation failed to put Dial on notice of any agency intention to bring a class-wide claim, EEOC’s pattern and practice claim must be dismissed.” Id. (citation omitted). I disagree.
[2] [3] As an initial matter, Dial has not persuaded me that “no lawsuit alleging a class-wide Title VII violation can proceed unless the employer was given notice of such a violation in the administrative charge.” See id. at 7; see also Defendant’s Reply Memorandum of Law in Support of its Motion for Summary Judgment [hereinafter Defendant’s Reply] at 3, filing 190 (“EEOC’s contention that Allen’s charge gave Dial sufficient notice of its class-based pattern and practice claim is disingenuous.”). As the EEOC correctly notes in its response, each of the
5

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
cases on which Dial relies to support this proposition involve scenarios where a private plaintiff attempts to expand an individual charge into a class lawsuit. See Plaintiff EEOC’s Memorandum in Opposition to Defendant Dial’s Motion for Summary Judgment [hereinafter Plaintiff’s Memorandum] at 41-42, 42 n. 20, filing 174.4 Furthermore, according to the Seventh Circuit, “[the] EEOC may allege in a complaint whatever unlawful conduct it has *936 uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint.” Walner, 91 F.3d at 968 (citing EEOC v. United Parcel Serv., 860 F.2d 372, 374 (10th Cir.1988); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 n. 10 (6th Cir.1975)). Thus, “[i]t may, to the extent warranted by an investigation reasonably related in scope to the allegations of the underlying charge, seek relief on behalf of individuals beyond the charging parties who are identified during the investigation.” United Parcel Serv., 94 F.3d at 318 (citing Cheek, 31 F.3d at 500);5 see U.S. EEOC v. General Motors Corp., 826 F.Supp. 1122, 1127 (N.D.Ill.1993) (stating that “the EEOC may properly bring a claim based on discrimination against a class of individuals where such a claim arises out of the investigation of an individual charge”); see also EEOC v. General Elec. Co., 532 F.2d 359, 366 (4th Cir.1976), cited with approval in General Tel. Co., 446 U.S. at 331, 100 S.Ct. 1698 (“In other words, the original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act.”).6 *937 Here, Allen alleged that she was the victim of a sexually hostile work environment. The EEOC then broadened the scope of Allen’s charge by alleging that Dial engaged in a pattern or practice of tolerating sexual harassment. It seems to me that there is, indeed, a “reasonable nexus” between Allen’s charge and the pattern-or-practice allegations in the EEOC’s complaint. See Walner, 91 F.3d at 968; General Motors Corp., 826 F.Supp. at 1127; see also EEOC v. Keco Indus. Inc., 748 F.2d 1097, 1101 (6th Cir.1984) (“[T]he EEOC has merely broadened the scope of the [individual’s] charge by alleging that [the defendant] has engaged in sexual discrimination against all of its female employees in its assembly division. Consequently, the only difference between the EEOC’s later charge and [the individual’s] initial charge is the number of persons victimized by [the defendant’s] allegedly discriminatory

practices.”). Likewise, it appears that the class-based claim could reasonably have been expected to grow out of Allen’s initial *938 complaint of sexual harassment. See, e.g., Keco Indus. Inc., 748 F.2d at 1101 (“[Since the] later class-based claim brought by the EEOC could have reasonably been expected to grow out of [the charging party’s] individual complaint of discrimination, no new additional proceedings were necessary.”). Thus, I am not persuaded that the scope-of-the-charge doctrine bars the EEOC’s pattern-or-practice claim.

4

In its brief, Dial asserts that when the EEOC, during the

course of investigating an individual charge that does

not include class-wide allegations, believes that it has

uncovered evidence of class-wide discrimination, “ ‘the

procedure to be followed is for the filing of a

[Commissioner’s charge] and for a full EEOC

investigation of that charge.’ ” Defendant’s

Memorandum at 8, filing 94. In support of its claim

Dial relies on EEOC v. Bailey Co., 563 F.2d 439 (6th

Cir.1977). Id. Bailey makes clear, however, that this

procedure is to be followed “when instances of

discrimination, of a kind other than that raised by a

charge filed by an individual party and unrelated to the

individual party, come to the EEOC’s attention during

the course of an investigation of the private party’s

charge ....” EEOC v. Bailey Co., 563 F.2d 439, 448 (6th

Cir.1977).

5

In its reply brief, the Dial challenges the EEOC’s

reliance on United Parcel Service to support its

“reasonable nexus” argument. Defendant’s Reply at 3

n. 3, filing 190. According to Dial:

In that case, the charging party challenged an

employer’s policy prohibiting employees from

wearing beards. The Seventh Circuit held that

because the employer could reasonably expect that

[the] EEOC’s investigation would identify other

employees adversely affected by the same policy,

[the] EEOC could seek relief on behalf of

individuals beyond the charging party. In contrast,

the charging party in this case, Beverly Allen,

complained solely about discrete conduct directed

toward her by one coworker, not about any

broad-based policy or practice.

Id. I do not find Dial’s argument persuasive.

Although Dial suggests otherwise, the court in

United Parcel Service did not appear to base its

decision on the fact that the underlying charge

included allegations relating to a particular policy, as

opposed to “discrete conduct” by a co-worker.

6

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

6

In General Electric Company, the EEOC sued the

General Electric Company, alleging that it had engaged

in discrimination on the basis of race and sex. General

Electric Co., 532 F.2d at 362. The suit was predicated

on two charges of racial discrimination filed with the

EEOC: the first complained of racial discrimination in

promotion and job transfer, and the second alleged

racial discrimination in employment. Id. After

investigating these charges, the EEOC found

“reasonable cause” to believe that the defendant had

engaged in racial discrimination in its promotion and

transfer practices with respect to the first complainant,

but had not engaged in racial discrimination in denying

employment to the second complainant. Id. The EEOC

also determined that there was “reasonable cause” to

believe the defendant had engaged in sex

discrimination against women. Id.

After efforts to conciliate failed, the EEOC filed suit

in federal court. Id. The defendant moved for

summary judgment with respect to the sex

discrimination claim, arguing that “ ‘no complaint

based upon sex (had been) filed against the defendant

....’ ” Id. The district court granted the defendant’s

motion. Id. While agreeing that “the civil suit is

related in its scope to the investigation and may

include other claims of discrimination than those

stated in the charge filed with the EEOC if they

reasonably ‘grow out’ of the investigation,” the

district court held that “this right to include an

additional claim of discrimination uncovered in the

investigation in the civil suit is limited to the claims

‘which might have been raised by the charging

party.’ ” Id. at 363. According to the district court, “a

claim of discrimination which the charging party had

no standing to assert was necessarily a claim ‘which

could not reasonably have been expected to grow out

of the charge of discrimination.’ ” Id. The court

therefore concluded that since both of the

complaining parties were males, neither the

complaining parties nor the EEOC had standing to

assert the sex discrimination claim. Id.

On appeal, however, the Fourth Circuit reversed. In

doing so, the court initially observed that both the

district court and the defendant “attach [ed] too much

importance to the charges as filed ....” Id. at 364. The

court explained as follows:

While it is true “the EEOC is without jurisdiction

to proceed (in any case) in the absence of a valid

charge, * * * (t)he purpose of the charge under

section 706 is only to initiate the EEOC

investigation,” to “trigger the investigatory and

conciliatory procedures of the EEOC.” The charge

is not to be treated as a common-law pleading that

strictly cabins the investigation that results

therefrom, or the reasonable cause determination

that may be rested on that investigation. The

charge merely provides the EEOC with “a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices;” and that investigation may well “disclose, as in this instance, illegal practices other than those listed in the charge” and provide a basis for a reasonable cause determination with respect to those practices.... If the EEOC uncovers during that investigation facts which support a charge of another discrimination than that in the filed charge, it is neither obliged to cast a blind eye over such discrimination nor to sever those facts and the discrimination so shown from the investigation in process and file a Commissioner’s charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation.... So long as the new discrimination arises out of the reasonable investigation of the charge filed, it can be the subject of a “reasonable cause” determination, to be followed by an offer by the Commission of conciliation, and, if conciliation fails, by a civil suit, without the filing of a new charge on such claim of discrimination. In other words, the original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act. Id. at 365-366 (notes omitted); see also General Tel. Co., 446 U.S. at 331, 100 S.Ct. 1698 (“Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.” (citing General Elec. Co., 532 F.2d at 366; McLean Trucking Co., 525 F.2d at 1010).) It seems to me that the Fourth Circuit’s rationale applies with equal force here, where an individual’s charge alleging that she was sexually harassed by a co-worker leads the EEOC to find reasonable cause that women, as a class, were subjected to sexual harassment. Thus, I would agree that requiring a new charge based on the EEOC’s investigation would “result in an inexcusable waste of valuable administrative resources and an intolerable delay in the enforcement of rights which require a ‘timely and effective remedy.’ ” Id. at 365 (notes omitted).
In its reply brief, however, Dial suggests that the EEOC’s
7

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
class-based action did not, in fact, grow out of its investigation of Allen’s charge. According to Dial, the EEOC made no effort to identify class members until several months after it filed the present action, when it sent a letter to approximately 400 current and former female employees who had worked at the Aurora plant at any time since 1988, notifying them of the lawsuit and seeking “to identify any female employees who were affected by sex harassment and who may be entitled to recover in this lawsuit.” See Defendant’s Reply 3-4, filing 190; Defendant’s Local Rule 56.1 Statement of Material Facts As To Which There Is No Genuine Issue [hereinafter Defendant’s Statement of Facts] ¶ 91, filing 96. Thus, Dial concludes, “[the] EEOC’s pattern and practice claim is based upon the individual claimants’ responses to its solicitation letter, not Allen’s charge.” Defendant’s Reply at 4, filing 190.
I do not find Dial’s argument persuasive. As an initial matter, Dial simply has not directed me to any relevant authority indicating that the EEOC violated its statutory “notice” obligation in failing to identify every class member during the administrative process.7 See, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 74, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984) (“[T]he principal objective *939 of the [notice] provision seems to have been to provide employers fair notice that accusations of discrimination have been leveled against them and that they can soon expect an investigation by the EEOC.”); World’s Finest Chocolate, 701 F.Supp. at 640 (“The notice requirement was ‘designed to ensure that the employer was given some idea of the nature of the charge; the requirement was not envisioned as a substantive constraint on the Commission’s investigative authority.’ ” (quoting Shell Oil Co., 466 U.S. at 75, 104 S.Ct. 1621)). In addition, to the extent Dial argues that the EEOC’s investigation did not actually reveal class-wide discrimination, Dial’s claim must fail. During its investigation of Allen’s complaint, the EEOC requested, inter alia, “[c]opies of all sexual harassment complaints, investigations and results of the investigations filed by employees since April 23, 1991.” Defendant’s Statement of Facts ¶ 85, filing 96. According to Dial, “[it] provided [the] EEOC with the requested information.” See id. ¶ 86.8 There is no reason for me to doubt that it was the EEOC’s review of these documents, as well as other evidence, which led it to find “reasonable cause” to believe that Dial had engaged in class-wide discrimination by subjecting women to sexual harassment and by failing to take “prompt, effective action” in response to sexual harassment complaints. Letter of Determination, Banas Decl. at Ex 1 (filing 98, tab Z). Furthermore, this reasonable cause determination is not

subject to judicial review. See Walner, 91 F.3d at 968 n. 3 (“This determination of reasonable cause is only an administrative prerequisite to a court action and has no legally binding significance in subsequent litigation.” (citation omitted)); EEOC v. St. Anne’s Hosp., 664 F.2d 128, 131 (7th Cir.1981) (rejecting defendant’s claim that the EEOC failed to investigate adequately a particular claim and noting that “[a] reasonable cause determination is not to adjudicate a claim but to notify an employer of the Commission’s findings”); EEOC v. Chicago Miniature Lamp Works, 526 F.Supp. 974, 975 (N.D.Ill.1981) (rejecting defendant’s request “to look behind [the] EEOC’s express finding of broad-scale discrimination to decide whether [the] EEOC had any reasonable basis for making that finding,” and noting that “Title VII’s statutory scheme clearly indicates that no such procedure was intended by Congress”); Keco Indus., Inc., 748 F.2d at 1100 (concluding that the district court erred in “inquir[ing] into the sufficiency of the Commission’s investigation” (citing St. Anne’s Hosp., 664 F.2d at 128; General Elec. Co., 532 F.2d at 359; Chicago Miniature Lamp Works, 526 F.Supp. at 974)); General Elec. Co., 532 F.2d at 370 (“[The EEOC’s] proceedings are not binding on the employer and they are not reviewable.”). Thus, despite Dial’s assertions to the contrary, I have no grounds for concluding that the EEOC’s class-based action did not, in fact, “gr[o]w out of its investigation of Allen’s charge.” See Defendant’s Reply at 4, filing 190.

7

In its briefs, Dial refers to 29 C.F.R. § 1601.12, which

provides that an EEOC charge should include, inter

alia, the name of the person making the charge and “[a]

clear and concise statement of the facts, including

pertinent dates, constituting the alleged unlawful

employment practices.” 29 C.F.R. § 1601.12(a). Based

on this provision, Dial seems to suggest that because

Allen’s charge did not include the names of the other

claimants, or the facts supporting their claims, the

allegations of these other claimants cannot support the

EEOC’s pattern-or-practice theory. See Defendant’s

Memorandum at 9, filing 94. As discussed above,

however, “[the] EEOC may allege in a complaint

whatever unlawful conduct it has uncovered during the

course of its investigation, provided that there is a

reasonable nexus between the initial charge and the

subsequent allegations of the complaint.” Walner, 91

F.3d at 968 (emphasis supplied) (citations omitted); see

United Parcel Serv., 94 F.3d at 318; General Motors

Corp., 826 F.Supp. at 1127. Thus, Dial’s reliance on §

1601.12 is misplaced.

Dial also seems to argue that the pattern-or-practice

claim should be dismissed because the EEOC used

8

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

the discovery process as a “fishing expedition” to identify potential class members. See Defendant’s Reply at 4-5, filing 190. In support of its claim, Dial refers me to the Walner decision, which provides as follows:
[T]he EEOC puts the cart before the horse by suggesting that it does not need an independently sufficient charge in order to file a lawsuit and obtain the discovery through which it may uncover these additional instances of discrimination. This argument recalls the aphorism that discovery is not to be used as a fishing expedition. Walner, 91 F.3d at 971-72. In Walner, however, the “problem [was] that [the] EEOC admitted in its response to [the defendant’s] motion that it had failed to make any determinations with regard to [the underlying] charge.” Harvey L. Walner, 91 F.3d at 970. As a result, the EEOC lacked “an independently sufficient charge” to support the class-based allegations in its complaint. See id. at 971; see also id. (“[T]he EEOC virtually conceded in its motion for reconsideration that it has no valid charge upon which to base a complaint. In that motion, [the] EEOC claims that ‘the Shepard charge is the jurisdictional basis of the suit,’ yet it admits that it has made no findings concerning Shepard’s charge.”). Here, by contrast, the EEOC’s Letter of Determination indicated that there was reasonable cause to believe that Dial discriminated against females as a class, including the charging party, Allen. See Letter of Determination, Banas Decl. at Ex. 1 (filing 98, tab Z). Thus, the Walner decision does little to advance Dial’s cause.

8

The EEOC disputes this assertion, claiming that Dial

did not produce complete responses to its investigation

requests. This dispute, however, is not relevant to the

present discussion.

[4] Next, Dial argues that because it was not informed of either the identity of the other claimants or the facts supporting their claims at any stage of the administrative process, it was denied the opportunity to conciliate these claims. See Defendant’s Memorandum at 9, filing 94; Defendant’s Reply at 5, filing 190. In response, the EEOC contends that Dial did, indeed, have an opportunity to conciliate all of the *940 claims, and that “[i]t was Dial’s refusal to even offer any reasonable relief for the charging party, much less the other members of the class, that impeded the conciliation process.” Plaintiff’s Memorandum at 43, filing 174. After reviewing the material submitted by both parties, I am persuaded that

the EEOC satisfied its statutory obligation to conciliate.
[5] [6] [7] The EEOC is charged with making a “good faith” effort to conciliate before filing suit. See EEOC v. First Midwest Bank, N.A., 14 F.Supp.2d 1028, 1031 (N.D.Ill.1998) (citing Keco Indus., Inc., 748 F.2d at 1102; EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir.1978)). Conciliation, however, is “ ‘a flexible and responsive process which necessarily differs from case to case.’ ” Id. (quoting EEOC v. Prudential Fed. Sav. & Loan Ass’n, 763 F.2d 1166, 1169 (10th Cir.1985), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985)). Thus, “ ‘[t]he EEOC may make a sufficient initial effort without undertaking exhaustive investigations or proving discrimination to the employer’s satisfaction ... so long as it makes a sincere and reasonable effort to negotiate by providing an “adequate opportunity to respond to all charges and negotiate possible settlements.” ’ ” Id. (quoting Prudential, 763 F.2d at 1169; Marshall v. Hartford Fire. Ins. Co., 78 F.R.D. 97, 107 (D.Conn.1978)). The judiciary’s role in reviewing the conciliation process is limited, as “the form and substance of the EEOC’s conciliation proposals” are within the agency’s discretion and, therefore, immune from judicial second-guessing. See id. (citing Keco Indus., Inc., 748 F.2d at 1102; EEOC v. Acorn Niles Corp., No. 93 C 5981, 1995 WL 519976, at *6 (N.D.Ill. Aug.30, 1995)).
Based on the evidence presented, it appears to me that the EEOC has satisfied its statutory duty to make “a sincere and reasonable effort to negotiate.” See id. (quoting Prudential, 763 F.2d at 1169). The record shows that on March 16, 1998, EEOC investigator Norma Hill contacted Dial’s in-house counsel, Margaret Banas, and advised Banas that (1) the EEOC was planning to issue its finding of reasonable cause that day, and (2) the EEOC was seeking relief on behalf of Allen and a class of females. See Defendant’s Statement of Facts ¶ 87, filing 96; Plaintiff’s Response to Defendant’s Local Rule 56.1 Statement of Material Facts [hereinafter Plaintiff’s Response to Defendant’s Statement of Facts] ¶ 87, filing 175. During this conversation, Banas apparently requested that Hill identify the class members. See Defendant’s Statement of Facts ¶ 87, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶ 87, filing 175. According to Dial, Hill responded that she did not know who the class members were, and that their identities would have to be determined during discovery. See Defendant’s Statement of Facts ¶ 87, filing 96. The EEOC, however, denies that Hill responded in this fashion. In her declaration, Hill states the following:
9

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

I told [Banas] that [the class members] were yet to be identified. I told her the class would include those mentioned in the investigation but might also include other women.... I did not tell her that the identities of the other class members would have to be determined in discovery.
Declaration of Norma Hill ¶ 9 (filing 176, tab 117).9

9

According to Dial, “Hill’s declaration testimony is

contrary to her notes of her March 16, 1998[,]

conversation with Banas ..., which show that Hill told

Banas nothing about the identity of particular class

members other than Allen.” See Defendant’s Reply to

the Additional Facts Alleged in Plaintiff’s Response to

Defendant’s Local Rule 56.1 Statement of Material

Facts As To Which There Is No Genuine Issue ¶ 87,

filing 192 (citing Memo to File-Allen v. Dial Corp,

McGlothlen Decl. at Ex. A (filing 98, tab DD)). Dial

contends that these notes are “undisputedly admissible”

under Federal Rule of Evidence 803(8) as a public

record, and, “[b]ecause [these] contemporaneous notes

have the effect of sworn testimony, [Hill’s] subsequent

declaration contradicting those notes is inadmissible

and should be disregarded.” Id. A review of these notes,

however, does not reveal a contradiction. See Memo to

File-Allen v. Dial Corp, McGlothlen Decl. at Ex. A

(filing 98, tab DD). The notes simply do not mention

whether anything was discussed regarding the identity

the other class members. See id.

*941 The EEOC’s Letter of Determination, issued on March 16, 1998, invited Dial to engage in conciliation efforts by submitting proposed terms. See Letter of Determination at 2, Banas Decl. at Ex. 1 (filing 98, tab Z). Dial accepted the invitation and, by letter dated March 26, 1998, proposed to “conduct sexual harassment training of all supervisory personnel as well as distribute and review the Company’s existing sexual harassment policy with all employees, both within an agreed upon time period.” Letter from M. Margaret Banas, Senior Attorney, to Daniel McGuire, EEOC (March 26, 1998), Hill Decl. at Ex. E (filing 176, tab 117). Dial also proposed to “continue [its] practice of posting the sexual harassment policy on Company bulletin boards.” Id. After discussing this offer with Banas, Hill advised her that the agency was seeking $300,000 on Beverly Allen’s behalf. Defendant’s Statement of Facts ¶ 89, filing 96; Declaration of Norma Hill ¶ 12 (filing 176, tab 117). Hill also indicated that “[the] EEOC would want a notice posted and changes

made in Dial’s sexual harassment policy.” Plaintiff’s Response to Defendant’s Statement of Facts ¶ 89, filing 175 (citing Declaration of Norma Hill ¶ 12 (filing 176, tab 117)); see also Defendant’s Reply to the Additional Facts Alleged in Plaintiff’s Response to Defendant’s Local Rule 56.1 Statement of Material Facts As To Which There Is No Genuine Issue [hereinafter Defendant’s Reply to Plaintiff’s Response] ¶ 89, filing 192 (admitting, for purposes of summary judgment, that Hill proposed such changes). The parties did not, however, discuss the matter of monetary compensation for class members other than Allen.10

10

In its statement of facts, Dial contends that “no one at

the agency specified what relief they [sic] were seeking

of behalf of the unidentified class members.”

Defendant’s Statement of Facts ¶ 89, filing 96 (citing

Declaration of M. Margaret Banas ¶ 5 (filing 98, tab

Z)). In response, the EEOC asserts, inter alia, that it

“made a monetary demand for Beverly Allen before

proceeding to make a monetary demand with respect to

class members other than Ms. Allen in an attempt to

reach an agreement on that issue first.” Plaintiff’s

Response to Defendant’s Statement of Facts ¶ 89, filing

175 (citing Declaration of Norma Hill ¶ 12 (filing 176,

tab 117) (“I did not specify a monetary demand for the

other class members, since Respondent had not asked

for one. I intended to see, first, if we could come to

some agreement over the monetary relief for [Allen],

before attempting to come to an agreement with respect

to the other class members.”)). One circuit has

recognized that “[t]o withdraw from discussions while

the other party is offering to negotiate the broad issues,

merely because an impasse has occurred as to the

charging party, smacks more of coercion than of

conciliation.” EEOC v. Pet, Inc., 612 F.2d 1001, 1002

(5th Cir.1980). Thus, the court concluded, “[s]uch an

all-or-nothing approach on the part of a commission,

one of whose most essential functions is to attempt

conciliation, will not do.” Id. (citation omitted). Dial,

however, does not mention this decision in its brief.

Furthermore, in its reply to the additional facts alleged

in the EEOC’s response, Dial asserts that “[the]

EEOC’s statement regarding why Hill made a monetary

demand for Allen before proceeding to make a

monetary demand for other class members is

immaterial because there is no evidence that Hill

communicated her reasons or intent to Banas during the

conciliation process.” Defendant’s Reply to Plaintiff’s

Response ¶ 89, filing 192. I therefore see no reason to

focus on the issue of whether the EEOC acted

inappropriately in seeking to first negotiate the

individual claim of the charging party.

10

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

*942 By letter dated May 26, 1998, Dial responded to the EEOC’s counterproposal by offering to pay Allen $5,000. Letter from M. Margaret Banas, Senior Attorney, to Norma Hill, EEOC (May 26, 1998), Hill Decl. at Ex. F (filing 176, tab 117). Dial also agreed to train supervisory personnel, distribute its sexual harassment policy to all employees, and continue posting the policy. Id. Allen rejected the $5,000 offer, and Hill then notified Banas that conciliation efforts had failed. Declaration of Norma Hill ¶ 14 (filing 176, tab 117).

After examining the facts outlined above, I am persuaded that the EEOC did, indeed, attempt to conciliate with Dial pursuant to its statutory obligation. Its conciliation efforts were permissibly premised upon individual as well as class-based claims. Both parties had the opportunity to put their respective proposals on the table before the EEOC determined that conciliation would be futile. Once Dial rejected the EEOC’s counterproposal, the “EEOC had no further duty at that point to conciliate any further.” See General Motors Corp., 826 F.Supp. at 1127; see EEOC v. Rymer Foods, Inc., No. 88 C 10680, 1989 WL 88243, at *1 (N.D.Ill. July 31, 1989) (“The EEOC is under no obligation to attempt further conciliation once the employer rejects the EEOC’s offer.” (citing Keco Indus., Inc., 748 F.2d at 1101-1102; EEOC v. Sears, Roebuck & Co., 504 F.Supp. 241, 262 (N.D.Ill.1980))). Despite Dial’s assertion to the contrary, I simply am not convinced that the EEOC failure to identify every class member during the conciliation process rendered to its efforts to conciliate inadequate. I recognize that there is a disputed question of fact as to whether Hill advised Banas that the class would include those women mentioned during the course of its investigation. Nevertheless, even if Hill did not offer such advice, Dial could reasonably surmise that the class would include, at a minimum, those women referred to in the materials it had supplied to the EEOC in response to the agency’s requests for information. Thus, this is not a case where the employer was forced to make a conciliation proposal “in an evidentiary vacuum.” See First Midwest Bank, 14 F.Supp.2d at 1032 (concluding that the EEOC did not engage in a good faith effort to conciliate where, inter alia, the EEOC expected the employer to submit a proposal without any information regarding the class of women against whom the employer allegedly discriminated). I therefore find that the EEOC satisfied its statutory duty to conciliate its claims before filing suit.11

11

Dial frames it’s conciliation argument as a ground for

summary judgment. Several courts, however, have

rejected dismissal as a sanction where the EEOC has at least attempted to conciliate. These courts have determined that the more appropriate remedy in such circumstances is to stay the proceedings for a period of time to enable the conciliation process to continue. See, e.g., Rymer Foods, Inc., 1989 WL 88243, at *1 (“If the court finds the EEOC failed to negotiate in good faith, the appropriate remedy is to stay the proceedings.” (citations omitted)); Sears, Roebuck & Co., 504 F.Supp. at 262 (“The sufficiency of the conciliation effort presents a question of whether the court should stay the proceeding for further conciliation, not whether it has jurisdiction over the cause.” (citation omitted)); Prudential, 763 F.2d at 1169 (“Accordingly, we have refused to dismiss cases where the EEOC failed to exhaust fully its duty to conciliate because to do so would severely hamper enforcement of the ADEA and would be ‘incompatible with the humanitarian nature of the Act.’ ... We have concluded instead that when the EEOC initially makes a sufficient albeit limited effort to conciliate, the minimal jurisdictional requirement of the Act is satisfied and the action is therefore properly before the court.... Once this initial effort is made, ‘if the district court finds that further conciliation efforts are required the proper course is to stay proceedings until such informal conciliation can be concluded.’ ” (citations omitted)); Pet, Inc., 612 F.2d at 1002-03 (concluding that dismissal was not appropriate where “conciliation has at least been attempted in good faith, though prematurely aborted” (citation omitted)); EEOC v. Hugin Sweda, Inc., 750 F.Supp. 165, 168 (D.N.J.1990) (“ ‘[S]ummary judgment is far too harsh a sanction to impose on the EEOC even if the court should ultimately find that conciliation efforts were prematurely aborted.’ ... Thus, rather than grant summary judgment in favor of the defendant, the Court will stay this action for a period of 45 days to provide the parties with the opportunity to engage in conciliation.” (citation omitted)).
*943 In summary, I find that the EEOC has fulfilled Title VII’s requirements with respect to notice and conciliation. In accordance with 42 U.S.C. § 2000e-5(b), the EEOC notified Dial of Allen’s sexual harassment charge and began an investigation. The EEOC permissibly broadened the scope of its investigation when it discovered evidence suggesting that Dial had engaged in class-wide discrimination by subjecting women to sexual harassment and by failing to take “prompt, effective action” in response to sexual harassment complaints. Letter of Determination, Banas Decl. at Ex. 1 (filing 98, tab Z); see Walner, 91 F.3d at 968; United Parcel Serv., 94 F.3d at 318; General Motors Corp., 826 F.Supp. at 1127. The EEOC then issued a Letter of Determination, advising
11

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
Dial that it intended to seek relief on behalf of Allen as well as other class members, and thereafter engaged in good faith, albeit unsuccessful, efforts to conciliate the claims. Thus, for the reasons outlined above, Dial’s motion for summary judgment is denied, to the extent it is based on the EEOC’s alleged failure to satisfy its statutory obligations with respect to notice and conciliation.
[8] Next, Dial argues that the EEOC’s case lacks the requisite timely underlying charge. Dial asserts that since Beverly Allen filed her charge on February 5, 1996, there must have been an actionable violation within 300 days of that date, i.e., April 5, 1995, for the charge to be timely. See Defendant’s Memorandum at 11, filing 94. According to Dial, “the only acts about which Allen complains which could give rise to a Title VII claim undisputedly occurred before February 1995,” and the EEOC is therefore forced to rely on a continuing violation theory “in an attempt to resurrect Allen’s time-barred allegations.” Id. at 11-12 (emphasis in original). However, Dial continues, this theory fails because (1) as noted above, there was no actionable occurrence within the 300-day period, and (2) Allen believed she had been the victim of harassment well before April of 1995, and, therefore, could not “reach back and base her suit also on conduct that occurred outside the [300-day limitations period]; for she had no excuse for waiting that long.” Id. at 12; Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir.1996) (citations omitted); see also Garrison v. Burke, 165 F.3d 565, 569-70 (7th Cir.1999) (“Acts that fall outside the statute of limitations may be joined to an act within the statute only if a reasonable person in the position of the plaintiff would not have known, at the time the untimely acts occurred, that she had a claim; rather, she could only tell by hindsight that the untimely acts represented the early stages of harassment.” (emphasis in original) (citing Galloway, 78 F.3d at 1166)). Thus, Dial concludes, Allen’s charge was untimely and cannot form the basis for the EEOC’s pattern-or-practice suit.
I do not find Dial’s argument persuasive. As an initial matter, I agree that when the EEOC chooses to proceed under § 2000e-5 to address an employer’s alleged discrimination against a class of employees, Title VII requires “that [the agency] have found reasonable cause to believe a valid charge filed in a timely manner.” See Walner, 91 F.3d at 969; see also id. at 968 (“The enforcement provisions of § 706 of Title *944 VII, which allow [the] EEOC to initiate civil actions, are therefore predicated upon a timely charge upon which [the] EEOC

has made a determination of reasonable cause.”). However, the Seventh Circuit has suggested that § 2000e-5(e)’s 300-day requirement will not bar individual claims when the EEOC is proceeding, as it is in this case, on a pattern-or-practice theory. See id. at 969; see also Complaint ¶¶ 1, 7, filing 1 (alleging a pattern or practice of discrimination); infra Parts III.C.4 & III.D.2.b (discussing the relevant limitations period in pattern-or-practice litigation).12 Furthermore, as discussed above, the Seventh Circuit has also recognized that “[t]he timely filing of an EEOC charge is not a jurisdictional prerequisite to filing a federal lawsuit ....” Hentosh, 167 F.3d at 1174 (emphasis supplied); see supra Part III.B. I therefore agree with the EEOC that even if Dial’s timeliness assertions are true, such assertions “would not create a jurisdictional barrier to an individual suit by [Allen] or by [the] EEOC.” Plaintiff’s Memorandum at 40, filing 174; see Walner, 91 F.3d at 971-72. Thus, Dial’s motion for summary judgment will be denied, to the extent it is based on a claim that the EEOC’s pattern-or-practice case lacks the requisite timely underlying charge.

12

According to the Seventh Circuit in Walner:

[The] EEOC’s choice to proceed under § 2000e-5

to address Walner’s alleged discrimination against

a class of employees required that it have found

reasonable cause to believe a valid charge filed in

a timely manner. [The] EEOC chose not to

proceed under § 2000e-5 upon a Commissioner’s

charge.... Nor did it choose to prosecute under a

“pattern or practice” theory pursuant to §

2000e-6. Its tactical decision required that it have

a valid charge supported by a finding of

reasonable cause upon which to base its complaint.

Walner, 91 F.3d at 969 (emphasis supplied)

(citations omitted); see also Mitsubishi, 990 F.Supp.

at 1086 (recognizing Walner’s suggestion that “a §

707 pattern or practice case does not require a valid

charge filed in a ‘timely’ manner”).

2. Merits of Allen’s Claim
Dial contends that even if Allen’s charge is timely, “[the] EEOC cannot base a pattern and practice case on Allen’s allegations because those allegations lack sufficient merit to proceed to trial under Title VII.” Defendant’s Memorandum at 13, filing 94. According to Dial, the conduct about which Allen complains, although
12

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
inappropriate, was not so “extreme and objectively humiliating as to rise to the level of actionable harassment under a long line of Seventh Circuit authority.” Id. at 16. In addition, Dial argues that even if the conduct alleged by Allen rose to the level of actionable harassment, the EEOC cannot establish a basis for holding Dial liable for the conduct. See id. at 17-18. Thus, Dial concludes, because Allen’s charge lacks merit, it cannot form the basis for the EEOC’s pattern-or-practice claim.
In response, the EEOC characterizes Dial’s challenge as an attempt to litigate the agency’s finding of reasonable cause. Plaintiff’s Memorandum at 40, filing 174. According to the EEOC, “[t]he argument that Allen’s individual claim fails as a matter of law is, of course, irrelevant to the use of her charge as the basis for the EEOC’s lawsuit.” Id. at 40 n. 19. I agree with the EEOC.
As discussed above, the EEOC has satisfied Title VII’s administrative prerequisites to filing suit in federal court. See supra Part III.C.1. It notified Dial of the charge filed by Allen, investigated the charge, issued a Letter of Determination finding reasonable cause to believe that Dial had discriminated against women, including Allen, as a class, and engaged in good faith efforts to conciliate the claims against Dial. See 42 U.S.C. § 2000e-5(b); supra Part III.C.1. Thus, in raising the *945 merits of Allen’s allegations as grounds for challenging the basis for the EEOC’s pattern-or-practice case, it seems that Dial is again inviting me to revisit the EEOC’s finding of reasonable cause. As stated above, however, such findings simply are not subject to judicial review. See supra Part III.C.1; Walner, 91 F.3d at 968 n. 3; St. Anne’s Hosp., 664 F.2d at 131; Chicago Miniature Lamp Works, 526 F.Supp. at 975-76; Keco Indus., Inc., 748 F.2d at 1100; General Elec. Co., 532 F.2d at 370. I therefore find that Dial’s motion for summary judgment is denied, to the extent it is based on a claim that because Allen’s allegations lack merit as a matter of law, the EEOC cannot base its pattern-or-practice claim on her charge.
3. Viability of Pattern-or-Practice Theory in Sexual Harassment Cases
[9] Dial also asserts that Title VII’s pattern-or-practice theory of liability is not viable in sexual harassment cases because sexual harassment claims, by nature, are not suited to class treatment. See Defendant’s Memorandum at 19-20, filing 94. According to Dial, “[n]o type of case

in the discrimination area is as inherently individualized as a sexual harassment case.” Id. at 20. Thus, Dial asserts, since “an employer’s liability turns on the particularized experience of the individual claimant,” sexual harassment cases simply “do not fit within the pattern and practice rubric.” Id. Instead, Dial concludes, the pattern-or-practice theory should be reserved for those types of cases that “Congress intended when it authorized the agency to bring [such] actions, e.g., where a hiring or pay policy of general application adversely impacts an identifiable class of employees and damages are easy to ascertain.” Id. at 19-20; see also id. at 20 (alleging that “[the] EEOC cannot point to a specific policy or practice responsible for the alleged sexual harassment”); id. at 21 (arguing that “because Dial has no identifiable policy in favor of harassment which has adversely affected a class of readily identifiable victims, this case cannot proceed on a pattern and practice theory” (citation omitted)); id. at 24 (contending that “the ultimate flaw in [the] EEOC’s theory is that it does not truly challenge a policy and practice of general application, but rather attempts to aggregate a large number of highly individualized claims which are not susceptible to class-type treatment” (citation omitted)); Defendant’s Reply at 11, filing 190 (“Claims can be effectively adjudicated under [the Teamsters ] model only where a plaintiff challenges an employer’s broad-based policy, such as a hiring or pay policy.”).
On a related note, Dial also argues that allowing this case to proceed as a class action would thwart the interests of efficiency and judicial economy. While recognizing that Rule 23 does not govern the EEOC’s pattern-or-practice claim, Dial maintains that “Congress had in mind Rule 23 principles when it authorized the agency to bring pattern and practice cases, and those principles provide guidance to trial court judges in exercising their discretion to determine whether a pattern and practice case should be allowed.” Defendant’s Memorandum at 19, filing 94 (citing General Tel. Co., 446 U.S. at 329 n. 13, 100 S.Ct. 1698; EEOC v. D.H. Holmes Co., Ltd., 556 F.2d 787, 795 n. 11 (5th Cir.1977)); see General Tele. Co., 446 U.S. at 324, 100 S.Ct. 1698 (“[T]he EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals. Its authority to bring such actions is in no way dependent upon Rule 23, and the Rule has no application to a § 706 suit.”); Mitsubishi, 990 F.Supp. at 1069-70 n. 4 (recognizing that “Federal Rule of Civil Procedure 23’s concerns, such as the adequacy of the class representative and/or whether individual *946 issues and defenses predominate, are simply not
13

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

considered in a pattern or practice action” (citation omitted)).13 Noting that one of the purposes of the class action device is to promote judicial economy, Dial contends that pattern-or-practice claims, like class actions, are appropriate “only where common questions predominate over individualized issues, i.e., where a policy or practice of general application applies to readily identifiable victims.” Id. at 21. Here, Dial reasons, where the claimants allege “different conduct, by different alleged perpetrators, which took place over the course of more than twelve years on different shifts,” individualized issues certainly predominate. See id. at 21-22. Thus, Dial concludes, “[g]iven the highly individualized nature of the putative class members’ claims, it would be impossible for [the] EEOC to establish liability and damages through common proof at trial.” Id. at 22.

13

Although pattern-or-practice claims are not subject to

Rule 23’s requirements, I agree with the Mitsubishi

court that “the use of the term ‘class’ for the group of

individuals on whose behalf the EEOC is bringing this

action is, for lack of a better term, an acceptable

nomenclature for the group.” See Mitsubishi, 990

F.Supp. at 1076 n. 10; see also Defendant’s

Memorandum at 19, filing 94 (suggesting that the

EEOC’s use of the term “class” constitutes an

admission that Rule 23’s procedures should guide this

litigation).

It appears to me that Dial has misinterpreted the nature of pattern-or-practice litigation. As the EEOC correctly notes in its brief, several courts have recognized the ability of plaintiffs, including the EEOC, to proceed on a pattern-or-practice theory in litigating claims of systemic employment discrimination, including sexual harassment. See, e.g., Mitsubishi, 990 F.Supp. at 1070-71; Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 875-76 (D.Minn.1993); Warnell v. Ford Motor Co., 189 F.R.D. 383, 386-88 (N.D.Ill.1999); Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 25-26 (N.D.Ohio 2000); see also U.S. Equal Emply. Com’n v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *1-2 (N.D.Ill. July 13, 1999) (allowing the EEOC to pursue its race discrimination/hostile work environment claim on a pattern-and-practice theory). These courts have addressed, and rejected, arguments similar to those now raised by Dial. See, e.g., Warnell, 189 F.R.D. at 386-87 (“Ford argues in effect that no sexual harassment case can be maintained as a class action. This is a bold and striking claim, but one quite without merit.”); Foster Wheeler, 1999 WL 528200, at *2 (“Defendants’ argument that

hostile work environment claims are inappropriate for class actions is similarly flawed.”); Mitsubishi, 990 F.Supp. at 1070 (“This Court does not need to make a great leap of faith to state the obvious: Title VII authorizes a pattern or practice action for sexual harassment.”). As these courts explain, pattern-or-practice liability does not turn upon “the particularized experience of the individual claimant.” See Defendant’s Memorandum at 20, filing 94. Instead, “the landscape of the total work environment, rather than the subjective experiences of each individual claimant, is the focus for establishing a pattern or practice of unwelcome sexual harassment which is severe and pervasive.” Mitsubishi, 990 F.Supp. at 1074 (notes omitted); see Warnell, 189 F.R.D. at 387 (quoting Mitsubishi, 990 F.Supp. at 1074); Bremiller, 195 F.R.D. at 25 (same); Foster Wheeler, 1999 WL 528200, at *2 (“To force the EEOC to prove each individual claim would be contrary to the way that pattern and practice claims operate.” (citation omitted)). Thus, it is “[t]he existence of a company’s policy of tolerating sexual harassment [that] is the basis for pattern or practice liability.” Mitsubishi, 990 F.Supp. at 1074; see also id. at 1077 (“The *947 purpose and effect of a successful pattern or practice case is to impose liability upon a private employer, not simply for individual wrongs, but for discriminatory policies created and maintained by an employer that result in a system-wide pattern or practice of disparate treatment against individuals who fall within a protected class.”); Warnell, 189 F.R.D. at 387 (quoting Mitsubishi, 990 F.Supp. at 1074); Bremiller, 195 F.R.D. at 25 (same). I see no reason to disagree with these decisions and therefore reject Dial’s contentions that Title VII’s pattern-or-practice theory of liability is not viable in sexual harassment cases generally or in this case specifically.
Borrowing again from Rule 23’s class action requirements, Dial also contends that the EEOC’s case should be dismissed on “manageability” grounds. See Defendant’s Memorandum at 23, filing 94 (“In addition to promoting judicial economy, a proposed action must be manageable in order to proceed on a class basis.”); see also FED. R. CIV. P. 23(b)(3)(D) (providing that “the difficulties likely to be encountered in the management of a class action” is a relevant factor in determining whether common questions of law or fact predominate). In support of its claim, Dial asserts that “[the] EEOC is proposing litigation of immense proportions,” as “[t]he Court and a jury will have to sit through as many as 101 trials to see which, if any, meet the legal requirements for actionable sexual harassment.” Defendant’s Memorandum at 23, filing 94. According to Dial, “no jury can be expected to
14

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
perform such a Herculean task, and no Court should be asked to do so either.” Id. at 23-24. I disagree.
As discussed below, this case will proceed according to the Mitsubishi model. See infra Part III.C.4. Thus, in the first phase of the proceedings, the EEOC will bear the burden of demonstrating a pattern or practice of sexual harassment. See Mitsubishi, 990 F.Supp. at 1070-77. The second phase will then focus on particular individuals’ entitlement to relief. Id. at 1077-1082. While recognizing that individual phase of the proceedings may take some time to complete, this action is not, by any means, unmanageable. See, e.g., Mitsubishi, 990 F.Supp. at 1088 (indicating that 289 plaintiffs were involved); see also Rohlfing v. Manor Care, Inc., 172 F.R.D. 330, 342 (N.D.Ill.1997) (“It is clear, however, that large class size alone is not an impediment to class certification.” (citation omitted)). To the contrary, it appears that the Mitsubishi model represents a reasonable and appropriate method of managing this case. In short, I am not willing to bar the EEOC’s pattern-or-practice action simply because a large number of women may have been affected by Dial’s alleged policy of tolerating harassment. Thus, to the extent Dial argues for dismissal on manageability grounds, its motion for summary judgment will be denied.
4. EEOC v. Mitsubishi Motor Mfg.
According to Dial, “[t]he only prior decision which squarely addresses the issue of [the] EEOC’s pattern and practice authority in a sexual harassment context is [EEOC v. Mitsubishi Motor Mfg. of America, Inc., 990 F.Supp. 1059 (C.D.Ill.1998) ].” Defendant’s Memorandum at 24, filing 94. Dial, however, attempts to distinguish Mitsubishi, noting the following: (1) Mitsubishi arose from a commissioner’s charge, rather than an individual’s charge, as in this case; (2) Mitsubishi arose before the United States Supreme Court articulated a new employer defense in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); and (3) the Mitsubishi decision was “issued at a different procedural stage than that presented here.” Id. *948 Thus, Dial concludes, “the Mitsubishi rationale for authorizing a pattern and practice sexual harassment suit is not justified in or applicable to this case.” Id. at 27. I disagree.

First, although the Mitsubishi action was predicated on a commissioner’s charge, I do not find this fact dispositive. As discussed above, an individual charge may also form the basis for a pattern-or-practice action, so long as that action arose from an investigation “reasonably related in scope to the allegations of the underlying charge ....” United Parcel Serv., 94 F.3d at 318 (citing Cheek, 31 F.3d at 500); see supra Part III.C.1. I therefore am not persuaded that the Mitsubishi model should be abandoned simply because the EEOC’s action is based on an individual’s charge, rather than a commissioner’s charge. See discussion infra Part III.D.2.b. Nor do I believe that the employer defense articulated in Ellerth and Faragher render the Mitsubishi model unworkable. As discussed below, these defenses can be incorporated into the Mitsubishi framework. See, e.g., Warnell, 189 F.R.D. at 388 (rejecting defendant employer’s assertion that availability of affirmative defense barred class certification in sexual harassment pattern-or-practice case); Bremiller, 195 F.R.D. at 28-31 (incorporating the Ellerth/Faragher affirmative defense into the pattern-or-practice analysis). Thus, Dial’s first two grounds for distinguishing Mitsubishi are without merit.
In attempting to distinguish Mitsubishi on factual grounds, Dial notes that “Mitsubishi did not argue, as Dial does here, that the depositions of the putative class members demonstrate that the pattern and practice sexual harassment claim, as well as the individual claims, also fail on the merits.” Defendant’s Memorandum at 24 n. 18, filing 94; see also Defendant’s Reply at 7, filing 190 (“[G]iven the more complete record in this case, Mitsubishi is distinguishable[.]”). The Mitsubishi court explained the EEOC’s burden in a pattern-or-practice case as follows:
[T]he EEOC will be permitted to establish a pattern or practice of sexual harassment by proving, by a preponderance of the evidence, that an objectively reasonable person would find the existence of: (1) a hostile environment of sexual harassment within the company (a hostile environment pattern or practice) or a situation where individuals within the workplace, as a whole, must accept a gender-hostile environment to enjoy the tangible benefits of their jobs (a quid pro quo pattern or
15

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

practice); and (2) a company policy of tolerating (and therefore condoning and/or fostering) a workforce permeated with severe and pervasive sexual harassment.

Mitsubishi, 990 F.Supp. at 1073;14 see also id. at 1069 (noting that “[t]he pattern or practice theory is that [the employer] created and maintained a sexually hostile and abusive work environment ... because it tolerated ... individual acts of sexual harassment by its employees by refusing to take notice of, investigate, and/or discipline the workers who sexually harassed other employees”); Jenson, 824 F.Supp. at 875 (explaining that a pattern or practice is present where “ ‘discrimination *949 was the company’s standard operating procedure-the regular rather than the unusual practice’ ” (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-62, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977))). According to Dial, the EEOC’s evidence fails with respect to both of the elements outlined above. First, Dial argues, the EEOC simply cannot demonstrate that a hostile environment of sexual harassment existed at the Aurora facility, as most of the individual class members’ allegations do not rise to the level of “actionable sexual harassment.”15 Thus, Dial asserts, “[b]ecause the class members’ claims are not actionable individually, they cannot support [the] EEOC’s pattern and practice theory in the aggregate.” Defendant’s Memorandum at 27, filing 94. Next, Dial points to the following mechanisms it has in place to combat sexual harassment, including (1) a written sexual harassment policy that includes multiple channels through which employees can report harassment; (2) an 800 “hotline” to its corporate offices through which Aurora employees can report harassment; (3) a practice of posting the policy on various bulletin boards throughout the plant, reviewing the policy with new employees as part of its new-hire orientation, and training both hourly and salaried employees in how to recognize, prevent, and report incidents of alleged harassment; and (4) a practice of investigating sexual harassment complaints and, where appropriate, taking corrective action reasonably calculated to end the harassment. Dial contends that the above evidence relating to its preventive and corrective action demonstrates that “no reasonable jury could conclude that Dial had in place a company-wide policy of condoning and fostering sexual harassment.” Id. at 26. Thus, Dial concludes, the EEOC’s pattern-or-practice claim fails as a matter of law. I disagree.

14

The United States Supreme Court has concluded that

the categories quid pro quo and hostile work environment are no longer controlling on the issue of vicarious liability. Ellerth, 524 U.S. at 754, 118 S.Ct. 2257. Nevertheless, the Court also recognized that these categories may still be useful in Title VII litigation. Id. at 753, 118 S.Ct. 2257. According to the Court: “To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII.” Id.

15

By “actionable sexual harassment,” Dial means

“conduct so severe or pervasive that it altered the

conditions of .. employment and created an abusive

working environment.” See Defendant’s Reply at 21,

filing 190 (citing Faragher, 524 U.S. at 786, 118 S.Ct.

2275); see also Meritor, 477 U.S. at 67, 106 S.Ct. 2399

(“For sexual harassment to be actionable, it must be

sufficiently severe or pervasive ‘to alter the conditions

of [the victim’s] employment and create an abusive

working environment.’ ” (citation omitted)).

[10] Before addressing the merits of the EEOC’s pattern-or-practice claim, however, I will first address Dial’s attempt to exclude all evidence relating to alleged incidents that occurred outside the 300-day time period defined by 42 U.S.C. § 2000e-5(e). According to Dial, many of the class members’ allegations are immaterial and irrelevant, as they relate to conduct or events that occurred before April 5, 1995, i.e., 300 days before Beverly Allen filed her EEOC charge. Such allegations, Dial asserts, are therefore time-barred and cannot support the EEOC’s pattern-or-practice claim. I disagree. For reasons discussed more fully below, I have determined that the timeliness of a particular class member’s claim will not depend upon the limitation found in § 2000e-5(e). See infra Part III.D.2.b. Instead, I will follow the Mitsubishi model and “let the evidence of a pattern or practice determine the relevant ‘limits’ for the lawsuit.” Mitsubishi, 990 F.Supp. at 1087. Thus, in determining whether genuine issues remain regarding the existence of a hostile environment at the Aurora plant, I will not restrict my analysis to allegations relating to post-April 5, 1995, events.
[11] Turning now to the merits of the EEOC’s pattern-or-practice claim, I have reviewed the allegations specifically relied on by the EEOC in its opposition brief, and I am not prepared to find, as a matter of law, that such
16

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

allegations fail to rise to *950 the level of “actionable sexual harassment.” See supra note 15; see also Defendant’s Reply at 20, 21, filing 190 (arguing that the EEOC cannot establish a plant-wide problem of “actionable sexual harassment” at the Aurora plant because “the vast majority of [class members] experienced, at most, sporadic and mildly offensive sexual conduct, none of which is sufficient to establish an individual hostile environment claim”). To the contrary, “[t]aking [the EEOC’s] version of the facts as true, it appears that the work environment at [Dial] was sexually charged in a way that was offensive and demeaning to women.” See Bremiller, 195 F.R.D. at 26.16 Several women testified that they were subjected to physically-invasive behavior by male employees. This alleged behavior ranged in severity from men touching women’s breasts and buttocks to an incident where a male co-worker grabbed a class member by the crotch and jerked upwards. In addition, male employees allegedly exposed themselves to their female co-workers or touched their genitals while making suggestive or threatening remarks. Dozens of women also indicated that they were the targets of repeated comments and conduct of a sexual nature. Finally, many women testified as to open displays of sexually offensive materials in the workplace, including pornographic magazines, pornographic calendars, pictures of nude women, pictures of scantily-clad women, and sexual cartoons. See Jenson, 824 F.Supp. at 880 (“The posting of sexually-oriented materials in common areas may serve as evidence of a hostile environment.” (citation omitted)).

16

In analyzing whether a hostile environment existed at

the Aurora plant, I am not limited to considering only

those incidents that were reported to management. See,

e.g., Bremiller, 195 F.R.D. at 26 n. 9 (“It is important to

note that the fact that incidents were or were not

reported is irrelevant to a determination of whether or

not a hostile environment existed.” (citing Distasio v.

Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir.1998)));

Distasio, 157 F.3d at 62 (“[A]t the summary judgment

stage the district court must assume that all of [the]

plaintiff’s allegations pertaining to the issue of a hostile

work environment are true and give [unreported

incidents] ... no less weight than reported incidents.”).

In order to be actionable, however, incidents of harassment must also be unwelcome and “based upon sex.” See, e.g., Mitsubishi, 990 F.Supp. at 1074, 1074 n. 5; Jenson, 824 F.Supp. at 883-84; Bremiller, 195 F.R.D. at 26-27. Generally, in the pattern-or-practice context, “a

finding of unwelcomeness will be justified where the plaintiff class shows by a preponderance of the evidence that women, by their conduct indicated that the acts of sexual harassment were unsolicited and regarded as undesirable or offensive.” Jenson, 824 F.Supp. at 883; see also Mitsubishi, 990 F.Supp. at 1074 n. 5 (agreeing with the district court in Jenson regarding its pattern-or-practice finding of unwelcomeness); Bremiller, 195 F.R.D. at 26 (same). Here, there is little, if any, evidence that “women invited acts of sexual harassment or found such acts to be acceptable.” Bremiller, 195 F.R.D. at 26. Nor does there appear to be any evidence indicating that the alleged acts of harassment were solicited by class members. To the contrary, several women testified that they warned their male co-workers regarding the inappropriateness of certain behavior and, on several occasions, complained to supervisors about the alleged harassment. See id. Finally, with respect to the “based upon sex” requirement, the majority of the conduct complained of was “explicitly sexual in nature,” raising the inference that the harassment was, indeed, based upon sex. See Bremiller, 195 F.R.D. at 27; Jenson, 824 F.Supp. at 884. Thus, for reasons outlined above, it appears that for the purposes of summary judgment, the EEOC has submitted sufficient evidence *951 demonstrating that class members were subjected to incidents of unwelcome sexual harassment at the Aurora plant.
In proving their pattern-or-practice claim, the EEOC must also demonstrate that a reasonable person would perceive the working environment as hostile. See Harris, 510 U.S. at 21-22, 114 S.Ct. 367 (providing that a sexually-objectionable environment, in order to be actionable under Title VII, must be both objectively and subjectively offensive, i.e., one that a reasonable person would find hostile or abusive, and one that the individual, in fact, did perceive to be so); Mitsubishi, 990 F.Supp. at 1076 (explaining that “[a] pattern or practice case can be established without the subjective showings required by ... Harris ”); Jenson, 824 F.Supp. at 885 (explaining that only the objective showing is necessary in class action pattern-or-practice litigation); Bremiller, 195 F.R.D. at 27, n. 11 (same); see also supra Part III.A (outlining the elements of a hostile environment sexual harassment claim). As discussed above, I must view the challenged conduct in light of “ ‘the record as a whole’ ” and “ ‘the totality of the circumstances’ ” in analyzing whether a reasonable person would find particular conduct “ ‘sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working environment.’ ” Meritor, 477 U.S. at 69, 67, 106 S.Ct.
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E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
2399 (citing 29 C.F.R. § 1604.11(b) (1985); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). According to the United States Supreme Court, Title VII protects women from having to spend their work days running “ ‘a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living ....’ ” Id. at 67, 106 S.Ct. 2399 (quoting Henson, 682 F.2d at 902). Thus, as one court has explained:
[W]here women are presented with constant and pervasive references to women, perhaps even themselves, as sexual objects and are subjected to acts in which their sexuality and sex role is elevated over their status as an employee,-that is, they are subject to pervasive sexual harassment on account of their sex-the reasonable woman would find the terms, conditions, and privileges of her employment affected by that sexual harassment.
Jenson, 824 F.Supp. at 886.
[12] After considering the totality of the circumstances in this case, I find that genuine issues of material fact remain as to whether a reasonable person would deem the working environment at Dial’s Aurora plant to be abusive or offensive in such a way as to alter the terms and conditions of employment. While some of the particularly disturbing physical attacks could be characterized as isolated, sporadic events, several class members testified that they experienced continuous comments, jokes, and stories of a sexual nature, as well as repeated instances of inappropriate touching or grabbing by male co-workers and supervisors. Generally, such comments and behavior were directed at class members, but some class members testified that they witnessed other women enduring similar hostility. Several class members also indicated that sexually-oriented materials were routinely displayed in various areas of the plant. In fact, one class member commented that prior to the early-to-mid 1990’s, pornographic magazines were “just as common as newspapers” at the Aurora plant. See Plaintiff’s Response to Defendant’s Statement of Facts ¶ 575, filing 175. Taking the class members’ allegations as a whole, “a reasonable jury could conclude that the sexualized environment that existed at [the plant] made it clear to women that they were perceived primarily as sexual

objects.” See Bremiller, 195 F.R.D. at 28. In short, there is sufficient evidence for a *952 jury to conclude that “the reasonable [person] would find the terms, conditions, and privileges of her employment affected” by such an environment. See Jenson, 824 F.Supp. at 886. I therefore find that genuine issues remain as to the existence of “a plant-wide atmosphere of conduct so severe or pervasive that it altered the conditions of ... employment [at Aurora] and created an abusive working environment.” See Defendant’s Reply at 21, filing 190 (citing Faragher, 524 U.S. at 786, 118 S.Ct. 2275).
[13] As noted above, the EEOC must also demonstrate that Dial had a company policy of tolerating sexual harassment. See Mitsubishi, 990 F.Supp. at 1073. According to the Mitsubishi court, “[t]he company’s pattern or practice of tolerating [sexual] harassment ... will require an additional showing of the company’s notice and negligence.” Id. at 1074. Since the Mitsubishi decision was issued, however, the United States Supreme Court has clarified that the standard for imposing liability differs when the conduct complained of was committed by a supervisor. See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275. Thus, as discussed above, Dial’s liability for hostile environment sexual harassment will depend upon whether the alleged harassers were supervisors or merely co-employees. See supra Part III.A; Parkins, 163 F.3d at 1032 (recognizing that harassment “ ‘by co-workers differs from harassment by supervisors ...’ ”) (citation omitted); Bremiller, 195 F.R.D. at 24.
[14] [15] With respect to sexual harassment by co-workers, the Seventh Circuit has recognized that an employer may be held liable where “it knew (or should have known) about the problem.” Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1009 (7th Cir.1998) (citing Zimmerman, 96 F.3d at 1018-19 (7th Cir.1996)); see also Parkins, 163 F.3d at 1035 (“[N]otice or knowledge of the harassment is a prerequisite for [employer] liability.” (citation omitted)). Under this “knew or should have known” standard, an employer’s actual knowledge is not required. See Bremiller, 195 F.R.D. at 28 (“[A] woman need not actually report an incident of sexual harassment, and an employer will not necessarily escape liability if she does not.”). Thus, “notice may be presumed where the work environment is permeated with pervasive harassment.” Wilson v. Chrysler Corp., 172 F.3d 500, 509 (7th Cir.1999) (citing Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir.1997); Zimmerman, 96 F.3d at 1018-19); see Zimmerman, 96 F.3d at 1018-19 (“The sheer pervasiveness of the harassment might support an
18

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
inference that the employer must have known of it ....” (citations omitted))); Mitsubishi, 990 F.Supp. at 1074 (“When harassing behavior occurs frequently enough and is both common and continuous, a company can reasonably be said to be on ‘notice’ of a severe and pervasive problem of sexual harassment that constitutes a hostile environment.” (citing Young, 123 F.3d at 674; Jenson, 824 F.Supp. at 886; Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1531 (M.D.Fla.1991)); Jenson, 824 F.Supp. at 886 (“An employer may be charged with knowledge when an employee or employees complain to management, or when the sexual harassment is pervasive, which gives rise to an inference of knowledge or constructive knowledge.” (citations omitted)). An employer may also be found to have notice where the evidence shows that “many of a company’s first-line supervisors had actual knowledge of the harassing behaviors (some of them may have participated in the harassment and others may have simply worked closely with those who did), ... if these supervisors had a duty or reasonably could be believed to have such a duty, under the *953 company’s sexual harassment policy, to ‘pass on the information to someone within the company who has power to do something about it.’ ” Mitsubishi, 990 F.Supp. at 1075 (citing Young, 123 F.3d at 674).
[16] [17] [18] Once an employer knows or should know of pervasive sexual harassment by co-workers, it may be found negligent if it fails to take steps to address the problem on a company-wide basis. See Mitsubishi, 990 F.Supp. at 1075; Bremiller, 195 F.R.D. at 29. An employer must do more than merely investigate individual cases to defend successfully a pattern-or-practice action, as “situation-specific” responses simply will not suffice. See Mitsubishi, 990 F.Supp. at 1075. A systemic remedy is needed to address large-scale harassment problems. See id. Thus, to avoid a finding of negligence, employers must take steps “to determine whether individual incidents, which occur frequently and continuously, are ‘indicative of a larger problem requiring a company wide response.’ ” Id. (quoting Jenson, 824 F.Supp. at 887). In addition, “[t]he ‘effectiveness’ of the remedial action ... is also relevant to the negligence analysis.” Id. An employer may demonstrate effectiveness by showing that (1) it promptly responded to the problem, and its response was reasonably likely to prevent the misconduct from recurring, or (2) after it took action, the conduct complained of did not recur. See id. (quoting Robinson, 760 F.Supp. at 1531). Thus, the Mitsubishi summarized the EEOC’s burden in demonstrating a company policy of tolerance as follows:

[T]o find that an employer was “negligent” in a pattern or practice case, the EEOC must show that the employer had notice, failed to take steps to remedy the company-wide problem of harassment that it knew or should have known about, and, if it took such steps, failed to take effective steps. Such a showing should be sufficient to establish a “policy” of tolerance by the company toward sexual harassment that would justify a finding of pattern or practice liability, so long as the other objective showings necessary to establish the existence of severe and pervasive harassment on a wide-scale basis are in place.
Id. at 1076.
After reviewing the evidence before me, I find that genuine issues of material fact remain as to whether Dial maintained a policy of tolerating co-worker harassment. First, with respect to notice, Dial suggests that because many of the class members failed to report the conduct about which they now complain, it had no way of knowing that a plant-wide problem existed. See Defendant’s Reply at 27, filing 190. I disagree. As discussed above, several class members indicated that they were subjected to harassment by co-workers on a regular basis. Several class members also testified that offensive materials, including sexual cartoons, magazines, and calendars, were openly displayed. See Jenson, 824 F.Supp. at 880 (“The posting of sexually-oriented materials in common areas may serve as evidence of a hostile environment.” (citation omitted)); Wilson, 172 F.3d at 509 (indicating that where the challenged conduct is “public and deliberately exhibitionist,” the employer may be found to have “constructive notice of the harassment”). Viewing these facts in a light most favorable to the EEOC, a reasonable jury could certainly conclude that “[t]he sexual harassment complained of occurred too routinely ‘to have escaped [Dial’s knowledge] had its management been reasonably alert.” ’ Bremiller, 195 F.R.D. at 29 (quoting Jenson, 824 F.Supp. at 886); see also Perry, 126 F.3d at 1014-15 (recognizing that the failure to complain is relevant where the harassment cannot be discerned in any other way). Thus, there is sufficient evidence demonstrating *954 that co-worker harassment at the Aurora facility was “so
19

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
pervasive that an inference of knowledge arises.” See Bremiller, 195 F.R.D. at 29.
As noted above, the EEOC may also demonstrate notice by showing that Dial’s “first-line supervisors had actual knowledge of the harassing behaviors ... if these supervisors had a duty ... under the company’s sexual harassment policy, ‘to pass on the information to someone within the company who has the power to do something about it.’ ” See Mitsubishi, 990 F.Supp. at 1075 (quoting Young, 123 F.3d at 674). According to Dial, its supervisors were advised to refer sexual harassment complaints to the Human Resources Department, which was responsible for documenting and filing the complaint. See Defendant’s Statement of Facts ¶ 33, ¶ 44, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶ 33, ¶ 44, filing 175; Defendant’s Reply to Plaintiff’s Response ¶ 33, ¶ 44, filing 192; see also Deposition of William Jensen (Dec. 2, 1999) at 55:17-56:1 (filing 98, tab G) (indicating that supervisors were “not supposed to handle [such complaints] on their own”). There is evidence, however, indicating that supervisors did not always follow this referral procedure after receiving what could reasonably be construed as sexual harassment complaints. See, e.g., Gentry v. Export Packaging Co., 238 F.3d 842, 849 (7th Cir.2001) (“[T]here is no legal mandate that an employee use the specific term ‘sexual harassment’ in order to inform his or her employer about a harasser in the workplace.... [The plaintiff’s] comments about touching and hugging in the workplace should have raised suspicions.”). In addition, several women testified that supervisors were present when harassment occurred. Based on such evidence, a reasonable fact finder could conclude that various supervisory personnel had actual knowledge of the harassing behaviors, yet failed to comply with Dial’s policy of referring such information on to the Human Resources Department. See Mitsubishi, 990 F.Supp. at 1075; see also Bremiller, 195 F.R.D. at 30 (concluding that where supervisors failed to refer sexual harassment complaints to the company’s EEO officer, as required by the employer’s harassment policy, the employer’s “complaint procedure was ineffective, [and it] could not legitimately rely on its employees to bring problems of sexual harassment to its attention for purposes of determining its knowledge”). Thus, for the reasons outlined above, I find that genuine issues of material fact remain as to whether Dial knew or should have known of a severe or pervasive problem of sexual harassment at the Aurora plant.
Next, Dial challenges the EEOC’s ability to demonstrate negligence. According to Dial, the EEOC simply cannot

show that Dial failed to “take steps to address the problem on a company-wide basis.” See Mitsubishi, 990 F.Supp. at 1075. In support of its claim, Dial notes that it since before 1988, it has had in place a sexual harassment policy that includes a complaint procedure and multiple reporting channels. According to Dial, it has posted this policy in various locations throughout the Aurora plant and has reviewed the policy with managers as well as new employees. Dial also reports that (1) since at least 1991, it has had an 800 “hotline” to its corporate office through which Aurora employees can report harassment, and (2) it periodically trains both its salaried and hourly employees in how to recognize, prevent, and report incidents of alleged harassment. Finally, Dial also asserts that its responses to reported incidents of sexual harassment demonstrate that it does not tolerate such conduct in its workplace.
After reviewing the evidence, I find that genuine issues of material fact remain as *955 to the issue of Dial’s negligence. First, Dial’s reliance on the remedial action it took in response to individual complaints of co-worker harassment is misplaced. As discussed above, an employer, once it has actual or constructive knowledge of a company-wide problem, must do more that simply address individual instances of alleged misconduct in order to avoid pattern-or-practice liability. See Mitsubishi, 990 F.Supp. at 1075 (“The assertion that [the employer] may have investigated individual cases of sexual harassment will not be a defense to pattern or practice liability.” (citing Jenson, 824 F.Supp. at 887)); Bremiller, 195 F.R.D. at 29; Jenson, 824 F.Supp. at 887. Here, there is little, if any, evidence indicating that Dial took steps “to determine whether individual incidents, which occur[red] frequently and continuously, [were] ‘indicative of a larger problem requiring a company wide response.’ ” See Mitsubishi, 990 F.Supp. at 1075 (citing Jenson, 824 F.Supp. at 887); see also Jenson, 824 F.Supp. at 888 (“[An employer] cannot close its eyes when confronted with incidents of sexual harassment; it has the obligation to determine the scope of the problem and takes [sic] steps to alleviate it.”). Although it appears that Dial has had a sexual harassment policy in place for several years and has trained its employees with respect to the policy, there is sufficient evidence for a fact finder to conclude that the harassment at Aurora was so severe or pervasive that additional steps were necessary to correct the problem. In short, genuine issues of material fact preclude me from finding that Dial’s efforts to eradicate the alleged plant-wide discrimination were effective as a matter of law. See Mitsubishi, 990 F.Supp. at 1075. Thus, for the reasons outlined above, Dial’s motion for summary
20

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
judgment will be denied, to the extent it is based on a claim that Dial cannot be found liable for the alleged incidents of co-worker harassment.
[19] As discussed above, an employer’s liability for harassment by supervisors depends upon whether the “harassment culminate[d] in tangible employment action, such as discharge, demotion or undesirable reassignment.” Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275; see supra Part III.A. In such cases, the employer’s liability is automatic. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257 (“No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action ....”); Faragher, 524 U.S. at 808, 118 S.Ct. 2275 (same). Where the alleged victim suffered no tangible employment consequences, however, “there is the possibility of an affirmative defense.” See Parkins, 163 F.3d at 1032. In order to avail itself of this defense, an employer must demonstrate, by a preponderance of the evidence, that “(a) [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) ... the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275.
In this case, several women testified that various supervisors and managers engaged in inappropriate behavior. See, e.g., Defendant’s Statement of Facts ¶ ¶ 170, 240, 288-289, 528, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶¶ 170, 240, 288-289, 528, filing 175; Plaintiff’s Statement of Additional Facts ¶ 208, filing 183; Defendant’s Response to Plaintiff’s Statement of Additional Facts ¶ 208, filing 191; Plaintiff’s Statement of Additional Facts ¶ 210, filing 183 (non-class member); Defendant’s Response to Plaintiff’s Statement of Additional Facts ¶ 210, filing 191 (non-class member). A review of the record reveals that the vast majority of *956 class members who allege harassment by supervisory personnel do not complain that such harassment culminated in a “tangible employment action.” Thus, Dial’s liability for misconduct on the part of supervisors appears to hinge on whether it can demonstrate both elements of the affirmative defense outlined above.
After reviewing the evidence, I find that genuine issues of material fact remain as to the issue of whether Dial is shielded from liability by the Ellerth/Faragher affirmative defense. As noted above, the first element of

this defense requires the employer to demonstrate that it has exercised reasonable care to prevent and correct promptly any sexually harassing behavior. See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275. Dial apparently contends that its sexual harassment policy, its dissemination of that policy, its 800 hotline number, and its sexual harassment training demonstrate, as a matter of law, that it exercised reasonable care in preventing harassment at the Aurora plant. I disagree. I have already concluded that the EEOC has provided sufficient evidence for a reasonable jury to find that Dial either knew or should have known of a plant-wide sexual harassment problem. I have also determined that there is little, if any, evidence demonstrating that Dial took steps “to determine whether individual incidents, which occur[red] frequently and continuously, [were] ‘indicative of a larger problem requiring a company wide response.’ ” See Mitsubishi, 990 F.Supp. at 1075. In light of these conclusions, I am not persuaded that Dial’s efforts to prevent harassment on a plant-wide basis were reasonable as a matter of law. See Bremiller, 195 F.R.D. at 31 (concluding that the employer was not immune from liability on class claims of sexual harassment by supervisors where, inter alia, (1) the employer’s sexual harassment policy was “clearly [in]effective in eradicating sexual harassment,” (2) many supervisors failed to follow the referral procedures outlined in the policy, and (3) the employer merely made situation-specific attempts to remedy claims of harassment). In short, the EEOC has provided sufficient evidence demonstrating that “reasonable care” may have required more. Thus, Dial cannot show, as a matter of law, that it is shielded from liability by the Ellerth/Faragher affirmative defense.17

17

Because I have determined that genuine issues of

material fact remain as to whether Dial can satisfy the

first element of the Ellerth/Faragher affirmative

defense, there is no reason for me to address the second

element. See Bremiller, 195 F.R.D. at 31.

For the reasons outlined above, the EEOC has established that genuine issues of material fact remain as to whether Dial engaged in a pattern or practice of maintaining an environment sexually hostile to women. Dial’s motion for summary judgment must therefore be denied, insofar as it is based on a claim that the EEOC’s pattern-or-practice allegations are without merit.

21

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

5. Bifurcation & the Seventh Amendment

[20] Citing to the International Brotherhood of Teamsters

v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d

396 (1977), the seminal case in establishing the

framework

for

pattern-or-practice

employment-discrimination actions, the Mitsubishi court

explained that the EEOC’s sexual harassment case would

be tried in phases. See Mitsubishi, 990 F.Supp. at

1073-82. If the EEOC could successfully demonstrate in

Phase I that the defendant engaged in a pattern or practice

of tolerating sexual harassment, the court indicated that it

would then turn to Phase II, in which the focus would

shift to individual class members’ entitlement to relief.

*957 See id. at 1077-82. Dial contends that the Mitsubishi

model of bifurcated proceedings runs afoul of the Seventh

Amendment, which provides that “no fact tried by a jury,

shall be otherwise reexamined in any Court of the United

States ....” U.S. CONST. AMEND. VII; see also In re

Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th

Cir.1995), cert. denied, 516 U.S. 867, 116 S.Ct. 184, 133

L.Ed.2d 122 (1985) (explaining that the Seventh

Amendment protects the “right to have juriable [sic]

issues determined by the first jury impaneled to hear them

(provided there are no errors warranting a new trial), and

not reexamined by another finder of fact”). According to

Dial, both it and the EEOC would offer much of same

evidence in Phase II of the proceedings as they would in

Phase I, and that, as a result, “issues and facts relating to

Dial’s liability would necessarily overlap between Phase I

and Phase II, making it highly probable that different

juries would reach different conclusions on the same

issues,” in violation of the Seventh Amendment. See

Defendant’s Memorandum at 28-29, filing 94. Thus, Dial

concludes, the EEOC’s pattern-or-practice case cannot

proceed based on the Mitsubishi bifurcation model. I

disagree.

The Seventh Circuit has recognized that district court judges “[have] considerable discretion to order the bifurcation of a trial.” Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir.2000). When exercising this discretion, courts must avoid permitting separate juries to examine the same factual issues, but may permit separate juries to examine “overlapping evidence.” See Houseman v. United States Aviation Underwriters, 171 F.3d 1117 (7th Cir.1999) (“While both juries can examine overlapping evidence, they may not decide factual issues that are common to both trials and essential to the outcome.” (citation omitted)); see also F.R. CIV. P. 42(b) (permitting the separate trial of any issue when separation would be “in furtherance of convenience or to avoid

prejudice, or when separate trials will be conducive to expedition and economy”); Krocka, 203 F.3d at 516 (“The district court may bifurcate a trial provided that this ruling 1) serves the interests of judicial economy or is done to prevent prejudice to a party; 2) does not unfairly prejudice the non-moving party; and 3) does not violate the Seventh Amendment.” (citations omitted)); Butler v. Home Depot, Inc., No. C-94-4335 SI, 1996 WL 421436, at *6 (N.D.Cal. Jan.25, 1996) (“As evidenced by the numerous cases across the country that have addressed this issue, the Seventh Amendment does not mandate that all phases of the litigation be heard by the same jury.”). In the context of hostile environment pattern-or-practice claims, “a well-constructed bifurcation scheme, used in tandem with clear instructions to the juries[,] can delineate the roles of the ... juries in order to avoid reexamination of any factual issues.” See Foster Wheeler, 1999 WL 528200, at *3.18 In Phase I, the jury will be instructed to find whether Dial engaged in a pattern or practice of maintaining an environment sexually hostile to women. See id. (citing Mitsubishi, 990 F.Supp. at 1073); see also EEOC v. McDonnell Douglas Corp., 960 F.Supp. 203, 205 (E.D.Mo.1996) (“At the liability trial, the question is whether the employer engaged in a pattern or practice of discrimination. The only fact issue for the jury to decide is whether unlawful discrimination *958 was the employer’s regular procedure or policy.” (citations omitted)). During this phase, the jury will consider (1) whether “an objectively reasonable person would find that, as a whole, the environment within the company [was] hostile,” and (2) whether the employer can be held liable for the plant-wide problem of sexual harassment. See Mitsubishi, 990 F.Supp. at 1078 (“All that the EEOC will have established in Phase I by a finding of pattern or practice is that an objectively reasonable person would find that, as a whole, the environment within the company is hostile and that the company was on notice of and was negligent regarding the systemic problem.”); supra Part III.C.4. In Phase II, however, the jury will be asked to determine (1) whether particular plaintiffs subjectively perceived the environment to be hostile or abusive, and (2) if so, whether such plaintiffs can establish a basis for individual liability. See Foster Wheeler, 1999 WL 528200, at *3; Mitsubishi, 990 F.Supp. at 1074 n. 7, 1080-81;19 see also McDonnell Douglas, 960 F.Supp. at 205 (“At the damages trial, the question is whether the individual class members are entitled to relief.”). Thus, it seems to me that the Mitsubishi bifurcation model “is reasonable in terms of the nature of the ‘pattern or practice’ case, is likely to produce efficiencies in case management by limiting the initial presentation to the objective case that each and every claimant must meet as
22

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

a general group, and avoids the constitutional problems of reexamination of factual issues.” See Foster Wheeler, 1999 WL 528200, at *3; see also McDonnell Douglas, 960 F.Supp. at 205 (observing that “ ‘pattern-or-practice’ employment discrimination cases are routinely bifurcated” (citation omitted)). I therefore conclude that bifurcation is both appropriate and permissible under the Seventh Amendment.

18

In Foster Wheeler, the court was apparently proceeding

under the assumption that only two separate juries

would be needed, one for Phase I and one for Phase II.

See Foster Wheeler, 1999 WL 528200, at *3. The

court’s rationale would appear to apply with equal force

here, where several juries will likely be needed for the

individual relief phase of the proceedings.

19

The Mitsubishi court recognized that liability “must be

established at both the pattern or practice and individual

relief phases.” Mitsubishi, 990 F.Supp. at 1074 n. 7.

According to the court:

A company’s notice of a pattern or practice and its

notice of individual harassment, although related,

involve slightly different inquiries. Similarly, a

company’s negligence in responding to a systemic

problem of sexual harassment requires different

findings than those required to hold a company

negligent for failing to remedy an individual act of

sexual harassment. The Court believes, however,

that the establishment of a pattern or practice of

unlawful sexual harassment by the company

entitles individual claimants to a presumption that

the company had notice and was negligent with

respect to the individual victims of the pattern or

practice.... Having proven that a company is a

“wrongdoer” at the pattern or practice phase,

because it had notice and was negligent of the

systemic problem, certainly justifies such a

presumption and places the burden, at least of

production, on the company to show that it was

not on notice and was not negligent with respect to

a particular claimant.

Id.; see id. at 1080-81 (recognizing that if the

employer does proffer such evidence, “it will be up

to the individual plaintiff to satisfy her burden of

proof on these elements”).

6. April 23, 1991, Settlement Agreement

[21] On April 23, 1991, the EEOC and Dial entered into a settlement agreement with respect to a charge of class-wide sexual harassment filed by one of the class members. See Defendant’s Statement of Facts ¶ 196, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶ 196, filing 175. Dial contends that the EEOC, in processing this charge, “had the opportunity to investigate and conciliate a class-based harassment allegation.” Defendant’s Memorandum at 35, filing 94. In addition, Dial notes that “the agency approved [the charging party’s] settlement and release of Title VII claims up to the date of that release.” Id. Thus, Dial concludes, “[the] EEOC is estopped from now seeking to hold Dial liable for conduct *959 which occurred before April 23, 1991.” Id. I disagree. As the EEOC correctly notes in its brief, this settlement agreement provided that “[the] EEOC [did] not waive or in any manner limit its right to process or seek relief in any other charge or investigation including, but not limited to, a charge filed by a member of the Commission against [Dial].” See Settlement Agreement at 2, Class Member 12 Dep. at Ex. 10 (filing 102, tab 12). Thus, I see no basis for concluding that the EEOC must limit its proof of a pattern or practice to conduct that occurred after April 23, 1991.

D. Individual Claims

1. Title VII Releases & Doctrine of Ratification
In its brief, Dial argued that twenty-two members were either fully or partially barred from recovering individual relief because they knowingly and voluntarily signed releases waiving their Title VII rights.20 Dial also argued that if there was any question as to the validity of these releases, the doctrine of ratification either fully or partially bars the individual claims of these class members. However, it seems to me that, based on the following language from its reply brief, Dial has abandoned these arguments for purposes of summary judgment:

20

In April of 1998, Dial apparently offered a voluntary

separation program (hereinafter VSP) to eligible hourly

and salaried employees at the Aurora facility. Dial

asserts that twelve class members waived their Title VII

rights by signing releases pursuant to this VSP, and

seven other class members waived their Title VII rights

23

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

under individual separation agreements. See Defendant’s Memorandum at 36-37, filing 94. Dial also asserts that three additional class members signed releases while still employed, thus barring them from recovering damages for incidents up to the dates of their respective releases. Id. at 37.
The Seventh Circuit has explained that “when an employee challenges his assent to a release as not being knowing and voluntary, a court must examine the ‘totality of circumstances’ surrounding the execution of the release.” Pierce v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 571 (7th Cir.1995) [hereinafter Pierce I ]; see also Pierce v. Atchison Topeka & Santa Fe Ry. Co., 110 F.3d 431, 438 (7th Cir.1997) [hereinafter Pierce II ] (“Knowing and voluntary consent is therefore a prerequisite to the effectiveness of waivers of federal antidiscrimination claims.”). In challenging her assent, an employee “must come forward with specific evidence sufficient to raise a question as to the validity of the release ....” Pierce II, 110 F.3d at 438; see Pierce I, 65 F.3d at 572 (“[A]fter the employer raises the existence of a release as a defense to a discrimination suit, the burden rests on the plaintiff to challenge specifically his voluntary and knowing consent to the release.”). “[B]ald assertion[s]” will not suffice. See Pierce I, 65 F.3d at 572. Once the employee has made the requisite showing, the employer then bears the burden of proving that the release was knowing and voluntary. See Pierce II, 110 F.3d at 437-38.

Because there are so many other reasons that the claims should be dismissed and given page limitations, Dial will not press at this stage its argument that summary judgment should be granted on the individual claims of those class members who signed releases.... In the event this case were to ever reach a Phase II individualized hearing stage, Dial reserves the right to again raise the issue of whether the 22 damage claims should be dismissed prior to any hearings because the releases are enforceable as a matter of law or, alternatively, because the 22 claimants failed to tender back the consideration they received for the releases before seeking damages in this action. See Defendant’s Reply at 30, 30-31 n. 29, filing 190. I therefore see no reason to address these issues at this stage of the litigation.21

21

In its response, the EEOC contends that genuine issues

of material fact preclude a finding that the releases

were “knowing and voluntary.” See Plaintiff’s

Memorandum at 48-52, filing 174. With respect to

those women who allegedly waived their rights

pursuant to the 1998 VSP, the EEOC alleges that these women (1) were pressured and misled into accepting the VSP; (2) did not understand that they were releasing their Title VII rights; (3) were inexperienced in business matters and were not well-educated; and (5) did not receive any consideration for the release of their Title VII rights. See id. at 50-52. The EEOC asserts that “[m]any of these same problems also surround the releases executed by the remaining class members Dial seeks to keep from recovering damages for the harassment they endured at Dial.” Id. at 52. In its reply brief, Dial argues that the EEOC’s “fact-intensive” contentions with respect to the releases “only serve to further emphasize that allowing individual class member claims to proceed as a pattern and practice case would be impossible to manage.” Defendant’s Reply at 30-31, filing 190. I disagree. Whether these waivers were knowingly and voluntarily executed will simply be another issue for the fact finder in Phase II of the proceedings, provided that these issues are not disposed of beforehand. See id. at 30-31 n. 29, filing 190 (asserting that it reserves the right to again raise these issues if this case should ever reach a Phase II individualized hearing stage).
*960 2. Merits of the Individual Class Members’ Claims
Dial also moves for summary judgment with respect to the class members’ individual claims for relief. According to Dial, most of the individual claims fail for one or more of the following reasons: (1) the individual acknowledged during her deposition that she had never been sexually harassed at Dial and/or that she was making no such claim in this case; (2) the individual’s allegations are time-barred; (3) the acts complained of do not rise to the level of severe or pervasive conduct; or (4) there is no basis to hold Dial liable for the alleged misconduct.22 In response, the EEOC asserts that “[w]hether particular class members are entitled to individual relief is not now the point.” Plaintiff’s Memorandum at 47, filing 174; see also id. (“[A] given individual’s right to monetary relief at the remedial phase of this lawsuit cannot properly be determined now, on Dial’s motion for summary judgment”); Teamsters, 431 U.S. at 361, 97 S.Ct. 1843 (“[A]s is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination.”). Alternatively, the EEOC contends that the timeliness of the individual claims cannot be determined at this stage of
24

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

the litigation. See Plaintiff’s Memorandum at 47, filing 174. After reviewing the evidence, I find that Dial’s motion for summary judgment with respect to the class members’ individual claims for relief will be granted in part and denied in part.

22

Dial summarizes its arguments with respect to the

individual claims in two charts, one included in its

memorandum and the other included as an exhibit to its

reply memorandum. See Defendant’s Memorandum at

31-35, filing 94; Defendant’s Reply at Ex. A, filing

190.

As an initial matter, I agree with the EEOC that certain issues need not be determined at this time. Dial’s arguments with respect to liability and the severity of the misconduct require an individual analysis of each class member’s allegations. Many of the individual claims, however, appear to hinge on a finding of pattern-or-practice liability. Without such a finding, 42 U.S.C. § 2000e-5(e)’s 300-day limitation period would likely eliminate the individual claims of several class members. Thus, in the interests of judicial economy and efficiency, I will not address these two arguments at this stage of the litigation. Instead, I will permit Dial to raise these issues again at the conclusion of the pattern-or-practice phase, should Dial elect to do so.

*961 a. Exposure to Sexual Harassment

[22] According to Dial, several of the class members

admitted during their respective depositions that they had

never been sexually harassed at Dial and/or that they were

making no such claim in this case. See Defendant’s

Memorandum at 31-35, filing 94. As an initial matter, I

find that Dial’s argument must fail with respect to Class

Members 2, 6, and 34.23 All three of these class members

testified that they were subjected to harassing conduct

and/or comments while working at the Aurora plant. See,

e.g., Deposition of Class Member 2 at 26:3-31:10 (filing

176, tab 3); Deposition of Class Member 6 at 48:2-49:9,

55:17-57:2, 58:17-59:23, 61:24-62:6, 88:22-92:7,

103:9-106:12,

106:21-117:5,

118:21-125:14,

140:16-143:6 (filing 176, tab 7); Deposition of Class

Member 34 at 82:20-83:4, 89:3-24, 94:14-95:8 (filing

176, tab 32). Thus, their claims for individual relief will

not be dismissed.

23

I have assigned the class members numbers based on

the numbering system established by Dial in the chart

included with its memorandum. See Defendant’s

Memorandum at 31-35, filing 94.

Dial also contends that additional class members should be dismissed because their claims are based solely on allegations of “sex-based harassment,” rather than “sexual harassment.”24 During their depositions, several women indicated that although they did not believe they had been sexually harassed, they had experienced sex-based harassment at the Aurora plant. See Deposition of Class Member 25 at 21:6-22 (filing 176, tab 24); Deposition of Class Member 37 at 4:6-13, 22:8-23:6 (filing 176, tab 35); Deposition of Class Member 60 at 27:6-28:8, 30:23-31:4 (filing 176, tab 57);25 Deposition of Class Member 70 at 27:3-13, 48:11-13 (filing 176, tab 66); Deposition of Class Member 84 at 35:16-42:19 (filing 176, tab 79);26 Deposition of *962 Class Member 99 at 51:2-6, 64:17-23, 75:6-11, 76:4-14 (filing 176, tab 92). According to these women, such sex-based harassment included the following: (1) a supervisor’s failure to share information regarding scheduling and company goals with a class member when this supervisor shared such information with the class member’s male counterparts (Deposition of Class Member 25 at 26:17-27:11, 28:16-29:2, 32:13-19, 33:11-37:1 (filing 176, tab 24)); (2) the “much more free flowing” relationship that male mechanics had with their male supervisors as compared to their relationship with a class member supervisor (Deposition of Class Member 25 at 22:3-23:1 (filing 176, tab 24)); (3) the segregated work environment in which men received more favorable assignments than women (Deposition of Class Member 37 at 23:16-28:10 (filing 176, tab 35)); (4) the pay differential between the predominantly male mechanics, known as line specialists, and the predominantly female line operators, and the division of responsibilities between these two positions (Deposition of Class Member 37 at 30:21-34:11, 35:19-37:17 (filing 176, tab 35); Deposition of Class Member 70 at 27:5-35:23 (filing 176, tab 66); Deposition of Class Member 84 at 42:16-44:11 (filing 176, tab 79); Deposition of Class Member 99 at 64:17-65:4 (filing 176, tab 92)); (5) pay differentials in other departments (Deposition of Class Member 60 at 30:23-38:10, 45:17-49:5 (filing 176, tab 57)); and (6) the Mens Social Club, which apparently existed at Dial until about 1986, when the name was changed and the club opened its membership to women (Deposition of Class Member 60 at 41:4-21 (filing 176, tab 57)).27 According to Dial, the above allegations “are not like or reasonably
25

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

related to Allen’s individual hostile environment allegations,” and should therefore be excluded from this litigation. See Defendant’s Memorandum at 10 n. 7, filing 94; see also id. at 30 n. 22 (characterizing the sex-based harassment allegations as disparate treatment claims and arguing that none of the class members suffered any “materially adverse employment action”). I agree with Dial in part.

24

Sexual harassment is generally defined as

“[u]nwelcome sexual advances, requests for sexual

favors, and other verbal or physical conduct of a sexual

nature ... [when] such conduct has the purpose or effect

of unreasonably interfering with an individual’s work

performance or creating an intimidating, hostile, or

offensive working environment.” See 29 C.F.R. §

1604.11(a); Meritor, 477 U.S. at 65, 106 S.Ct. 2399;

see also infra note 30 and accompanying text

(discussing the different forms of sex discrimination).

25

In its statement of facts, Dial asserts that Class Member

60 was not subjected to sexual harassment during her

employment. See Defendant’s Statement of Facts ¶ 594,

filing 96. The EEOC denies this, noting that this class

member testified as to seeing a picture of the chest of a

women in a blue sweater at some time during the mid

1980’s, when a Best Breast contest was held during a

union lockout. See Plaintiff’s Response to Defendant’s

Statement of Facts ¶ 594, filing 175. In its reply, Dial

urges me to disregard the above testimony relating to

the Best Breast contest since Class Member 60 did not

participate in this contest and has no personal

knowledge as to whether the contest took place, other

than seeing the one picture. See Defendant’s Reply to

Plaintiff’s Response ¶ 594, filing 192. I am inclined to

agree with Dial, since there is no indication that Class

Member 60 subjectively perceived this incident as

harassment. Furthermore, during the deposition, the

EEOC’s attorney began her cross-examination by

noting that Class Member 60 “testified that [she was

not] sexually harassed while [she was] at the Dial

Corporation.” See Deposition of Class Member 60 at

30:23-31:3 (filing 176, tab 57). It therefore appears to

me that Class Member 60’s individual claim is based

exclusively on allegations of sex-based harassment.

26

Class Member 84 testified about one incident involving

her female supervisor, but admitted that she did not feel

the conduct she complained of was directed at her

because of her sex. See Deposition of Class Member 84

at 28:24-32:11, 36:6-10 (filing 176, tab 79). This class

member also testified as to a temporary job

reassignment, when her supervisor transferred a younger female into her position for two days. See id. at 35:16-38:23. Although this class member characterized the reassignment as sex-based harassment, I agree with Dial that the incident does not support a claim of either sexual harassment or sex discrimination. See id. at 39:13-40:10; Defendant’s Reply to Plaintiff’s Response ¶ 822, filing 192.

27

There is some question as to whether this club was even

sponsored by Dial. See Plaintiff’s Response to

Defendant’s Statement of Facts ¶ 594, filing 175;

Defendant’s Reply to Plaintiff’s Response ¶ 594, filing

192 (arguing that the EEOC’s assertions regarding the

existence of this club are immaterial because “there is

no suggestion that Dial sponsored this Social Club”);

see also Cowan v. Prudential Ins. Co., 141 F.3d 751,

758 (7th Cir.1998) (“[T]he fact that some co-workers

decided to associate with others outside of work by

golfing or fishing does not constitute sex

discrimination, much less create a hostile work

environment (unless of course it was a

company-sponsored event from which the women were

excluded). That is true even if the men only want to

associate with other men in their free time.” (citing

Bedard v. Roger Williams Univ., 989 F.Supp. 94

(D.R.I.1997) (recognizing that “federal

anti-discrimination laws simply do not provide a

remedy for ... social isolation and exclusion from

outings which took place outside the scope of

employment”))).

As discussed above, the EEOC may seek relief for whatever unlawful conduct it uncovers during the course of investigating an individual’s charge, “provided that there is a reasonable nexus between the ... charge and the subsequent allegations in the complaint.” See Walner, 91 F.3d at 968 (citations omitted). The Fourth Circuit has explained that:

[T]he original charge is sufficient

to support action by the EEOC as

well as a civil suit under the Act for

any discrimination stated in the

charge itself or developed in the

course of a reasonable investigation

of that charge, provided such

discrimination was included in the

*963

reasonable

cause

determination of the EEOC and

was followed by compliance with

26

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
the conciliation procedures fixed in the Act.
General Elec. Co., 532 F.2d at 366 (emphasis supplied), cited with approval in General Tel. Co., 446 U.S. at 331, 100 S.Ct. 1698; see also Cheek, 31 F.3d at 501 (recognizing that “an employer may discriminate on the basis of sex in numerous ways”). In this case, the EEOC’s reasonable cause finding pertained only to sexual harassment. See Letter of Determination, Banas Decl. at Ex. 1 (filing 98, tab Z) (finding “reasonable cause to believe that [Dial] discriminated against females, as a class, including [Beverly Allen], in that they were subjected to sexual harassment and when they complained [Dial] failed to take prompt, effective action”). There is no mention of any other form of sex discrimination in the Letter of Determination. See, e.g., DeClue v. Central Illinois Light Co., 223 F.3d 434, 437 (7th Cir.2000) (explaining that sexual harassment “is remote ... from a simple refusal to hire women, from holding them to higher standards than their male coworkers, or from refusing to make accommodations for differences in upper-body strength or other characteristics that differ systematically between the sexes”); Cowan v. Prudential Ins. Co., 141 F.3d 751, 759 (7th Cir.1998) (concluding that allegations that male employees were treated better than female employees, such as alleged incident in which plaintiff’s supervisor worked more intensively with a new employee than he did with her, could not support hostile work environment sexual harassment claim, although such allegations could potentially support claim of disparate treatment discrimination); see also infra note 30 (discussing, inter alia, the DeClue and Cowan decisions). I therefore agree with Dial that the EEOC should be barred from expanding its theory of recovery to include the above instances of sex-based harassment. Thus, Dial’s motion for summary judgment will be granted, to the extent it seeks to dismiss the individual claims for relief of Class Members 25, 37, 60, 70, 84, and 99.
On a related note, two class members indicated that although they were not sexually harassed while at the Aurora plant, they were subject to sex-based harassment in connection with Dial’s 1998 voluntary separation program (hereinafter VSP).28 See Deposition of Class Member 9 at 17:24-18:14 (filing 176, tab 9); Deposition of Class Member 52 at 19:15-20:14 (filing 176, tab 50). According to Dial, it offered this program to all eligible hourly and salaried employees at the Aurora plant, both male and female. See Defendant’s Statement of Facts ¶ 92, filing 96. The EEOC disputes this assertion, claiming

that Dial’s management “targeted women to take the buyout.” See Plaintiff’s Response to Defendant’s Statement of Facts ¶ 93, filing 175; see also Deposition of Class Member 9 at 19:15-20, 27:11-28:7, 38:13-41:14, 44:22-46:6 (filing 176, tab 9) (testifying as to meetings in which employees were allegedly advised that if they remained at Dial, their jobs would include several additional, physically-demanding duties); Deposition of Class Member 52 at 38:6-39:11 (filing 176, tab 50) (testifying as to supervisor’s warning that after the buyout, the class member’s job hours would be changed and she may be required to report to work at 4:00 a.m. or 6:00 a.m.); id. at 63:12-65:6 (testifying as to incident where a Dial manager specifically asked class member if she was going to participate *964 in the VSP). The individual claim of Class Member 22 is also apparently based solely on Dial’s alleged efforts to target women in seeking VSP participants. See Defendant’s Statement of Facts ¶¶ 285-286, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶¶ 93, 285-286, filing 175.29 It seems to me, however, that the EEOC’s allegations relating to VSP are also outside the scope of its reasonable cause determination.30 Thus, for *965 the reasons outlined above, I shall also dismiss the individual claims of these three class members.

28

For a brief discussion of this program and Seventh

Circuit authority regarding the validity of releases, see

supra note 20.

29

This class member was not deposed, and the EEOC has

not provided a declaration from this individual See

Defendant’s Memorandum at 31 n.c, 32, filing 94;

Appendix to Plaintiff’s Response to Defendant’s Local

56.1 Statement of Material Facts and to Plaintiff’s

Statement of Additional Facts at Index, filing 176.

30

In its response, the EEOC asserts that in this case,

“there are ... disputed issues of fact regarding whether

Dial’s 1998 Buyout was itself part of the pattern or

practice of harassment against its female employees

that contributed to the hostile work environment at

issue here.” See Plaintiff’s Memorandum at 52, n. 26,

filing 174 (emphasis in original) (citation omitted). The

Seventh Circuit, however, has recognized the

following:

Sexual harassment is the form of sex

discrimination in the terms or conditions of

employment that consists of efforts either by

coworkers or supervisors to make the workplace

27

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

intolerable or at least severely and discriminatorily uncongenial to women (“hostile work environment” harassment), and also efforts (normally by supervisors) to extract sexual favors by threats or promises (“quid pro quo” harassment).... It is a form of, rather than a synonym for, sex discrimination. It is remote, for example, from a simple refusal to hire women, from holding them to higher standards than their male coworkers, or from refusing to make accommodations for differences in upper-body strength or other characteristics that differ systematically between the sexes.... The requirements for proving, and the defenses to, charges of sexual harassment have been configured in light of the distinct nature of that form of sex discrimination.... Of course, as a purely semantic matter, it might be possible to argue that an employer who fails to correct a work condition that he knows or should know has a disparate impact on some class of his employees is perpetuating a working environment that is hostile to that class. But if this argument were accepted it would make disparate impact synonymous with hostile work environment, erasing the important distinctions [between these two forms of sex discrimination]. DeClue, 223 F.3d at 437. Here, it seems to me that the EEOC is attempting to make “disparate [treatment] synonymous with hostile work environment,” a result that the Seventh Circuit simply does not permit. See id.; see also Plaintiff’s Response to Defendant’s Statement of Facts ¶ 93, filing 175 (asserting that “Dial targeted women to take the buyout in 1998, and encouraged male mechanics to make these women’s jobs more difficult in order to pressure them into accepting it”); Cowan, 141 F.3d at 759 (concluding that allegations that male employees were treated better than female employees, such as alleged incident in which plaintiff’s supervisor worked more intensively with a new employee than he did with her, could not support hostile-work-environment sexual harassment claim, although such allegations could potentially support claim of disparate treatment discrimination); Sweeney v. West, 149 F.3d 550, 555 (7th Cir.1998) (“Of course workplace abuse does not have to be sexually explicit or suggestive to violate Title VII. A Title VII violation could occur if the abuse altered the plaintiff’s working conditions and was directed at members of one sex but not the other. The statutes and case law clearly prohibit disparate treatment between sexes.” (emphasis in original)). But see Curde v. Xytel Corp., 912 F.Supp. 335, 340 (N.D.Ill.1995) (concluding that “the most recent statements by the Seventh Circuit dispel the notion

that hostile environment claims are limited solely to situations involving conduct of a sexual nature; rather, actionable harassment ‘encompasses all forms of conduct that unreasonably interfere with an individual’s work performance or create[ ] an intimidating, hostile, or offensive work environment.’ ” (emphasis in original) (citing Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994); Meritor, 477 U.S. at 64, 106 S.Ct. 2399; Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1009 (7th Cir.1994))).
In addition, Dial suggests that the individual claims of Class Members 27 and 57 must be dismissed. These class members participated in Dial’s VSP and were not deposed by Dial. See Declaration of William Jensen ¶¶ 11, 15 & Ex. 22, 25 (filing 98, tab BB). In responding to Dial’s motion, the EEOC included declarations from these two class members in its appendix. See Declaration of Class Member 27 (filing 176, tab 115); Declaration of Class Member 57 (filing 176, tab 120). These declarations include allegations of sexual harassment. See Declaration of Class Member 27 ¶ 2 (filing 176, tab 115); Declaration of Class Member 57 ¶ 2 (filing 176, tab 120). Dial, however, urges me to disregard these declarations, as both are unsigned and undated. See Defendant’s Response to Plaintiff’s Statement of Additional Facts ¶¶ 45-48, 114-116, filing 191; 28 U.S.C. § 1746 (requiring unsworn declarations to be signed and dated). While I acknowledge that Seventh Circuit authority certainly permits me to ignore unsigned declarations, I am inclined to afford the EEOC an opportunity to correct these procedural defects, particularly in light of the fact that Dial’s objections to the declarations are buried within its response to the Plaintiff’s Statement of Additional facts. See, e.g., Sellers v. Henman, 41 F.3d 1100, 1101 (7th Cir.1994); DeBruyne v. Equitable Life Assurance Soc’y, 920 F.2d 457, 471 (7th Cir.1990); Gilty v. Village of Oak Park, 919 F.2d 1247, 1255 n. 13 (7th Cir.1990); see also Contreras v. Suncast Corp., 237 F.3d 756, 766 (7th Cir.2001), cert. filed, No. 00-1877 (May 14, 2001) (concluding that the district court did not abuse its discretion in allowing the defendant “to resubmit four affidavits to cure the procedural defect that they had been originally notarized by ... a party to the lawsuit”). The immense amount of paperwork submitted in connection with this motion, while not an excuse for the EEOC’s errors, certainly renders such errors understandable. I will therefore grant the EEOC twenty days from the date of this order to cure the procedural defects with respect to the declarations of Class Members 27 and 57. If the
28

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

EEOC fails to cure these defects, Dial’s motion for summary judgment will be granted as to the individual claims of Class Members 27 and 57, as there is no admissible evidence in the record indicating that these two individuals were subject to sexual harassment while working at Dial.
Finally, two class members testified that they did not believe that they had been subjected to any sexual harassment or sex-based harassment at the Aurora plant. See Deposition of Class Member 20 at 21:13-24, 36:19-37:15 (filing 176, tab 20) (indicating that she did not intend to seek individual relief in the present lawsuit); Deposition of Class Member 63 at 29:6-9, 30:3-8 (filing 176, tab 59) (explaining that her complaint was with Dial’s management structure). These class members’ claims for individual relief will therefore be dismissed.31 One other individual, Class Member 98, worked at Dial less than a week and did not appear for her scheduled deposition. See Defendant’s Statement of *966 Facts ¶¶ 949-950, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶¶ 949-950, filing 175. Dial apparently attempted to reschedule the deposition, but the EEOC did not respond. See Defendant’s Statement of Facts ¶ 950, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶ 950, filing 175. There does not appear to be anything in the record regarding this class member’s alleged exposure to sexual harassment. Nor does there appear to be any evidence relating to Class Member 94’s experiences at the Aurora plant. See Defendant’s Statement of Facts ¶¶ 914-916, filing 96; Plaintiff’s Response to Defendant’s Statement of Facts ¶¶ 914-16, filing 175 (indicating that Class Member 94 left Dial in 1996 and accepted Dial’s voluntary separation package). Thus, the individual claims for relief of Class Members 94 and 98 will also be dismissed.

31

My ruling with respect to Class member 20’s individual

claim for relief does not affect the EEOC’s ability to

call her as a witness during the pattern-or-practice

phase of the proceedings. See Deposition of Class

Member 20 at 38:4-13, 39:8-12 (filing 176, tab 20)

(indicating that from about 1974 to 1985, she saw

pictures of women who wore “[v]ery little clothes,” and

women who were “well-stacked” and “skimpy [sic]

dressed”); Mitsubishi, 990 F.Supp. at 1087-88 (barring

certain plaintiffs from participating in the individual

relief phase, but noting that such individuals would

nevertheless be permitted to offer “anecdotal evidence”

as part of the pattern-or-practice case).

For the reasons outlined above, Dial’s motion for summary judgment will be granted, to the extent it seeks to dismiss the individual claims for relief of Class Members 9, 20, 22, 25, 37, 52, 60, 63, 70, 84, 94, 98, and 99, and denied, to the extent it seeks to dismiss the individual claims for relief of Class Members 2, 6, and 34.32 With respect to Class Members 27 and 57, the EEOC shall have 20 days from the date of this order to cure the procedural defects associated with their declarations. If the EEOC fails to cure such defects within this time frame, summary judgment will be granted as to the individual claims for relief of these two class members

32

In footnote to its initial chart, Dial requests “its

attorneys’ fees and other litigation costs pursuant to

Fed.R.Civ.P. 11 in connection with having to depose

[several individuals who do not allege that they were

sexually harassed] and to address their claims on

summary judgment.” See Defendant’s Memorandum at

31 n. b, filing 94. If and when Dial files a motion

seeking such relief, I shall address this issue.

b. Timeliness
Next, Dial moves to dismiss several of the class members’ individual claims as untimely. Noting that Beverly Allen filed her EEOC charge on February 5, 1996, Dial asserts that the 300-day limitations period of § 2000e-5(e) bars class members from obtaining individual relief for events that occurred before April 5, 1995. Dial also argues that the EEOC is precluded from relying on the “continuing violation” doctrine as a means of avoiding the 300-day filing requirement. Thus, Dial concludes, the individual claims based solely on pre-April 5, 1995, conduct must be dismissed as time-barred.
According to the EEOC, however, the timeliness of the class members’ individual claims cannot be evaluated at this stage of the litigation. In support of this assertion, the EEOC directs me to the Mitsubishi court, which found that a “a § 707 [§ 2000e-6] pattern or practice case is not subject to a limitations period.” See Mitsubishi, 990 F.Supp. at 1084; see also id. at 1085 (concluding that “the limitations period applicable to § 706 [§ 2000e-5] actions does not apply to § 707 [§ 2000e-6] cases, despite the language of § 707(e), which mandates adherence to the other procedural requirements of § 706” (citation omitted)). After rejecting arguments similar to those now
29

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

raised by Dial,33 the *967 Mitsubishi court elected to “let the evidence of a pattern or practice determine the relevant ‘limits’ for the lawsuit,” explaining as follows:

33

Mitsubishi argued that (1) § 2000e-5(e)’s timing

requirement cut off all individual claims that had not

been filed with the EEOC within 300 days before the

Commissioner’s charge was filed; (2) the

Commissioner’s charge was controlling for purposes of

analyzing the timeliness of the discrimination claims of

those class members who did not file their own charges

with the EEOC or IDHR; (3) this timing requirement

also barred the claims of those class members who (a)

left the company more than 300 days before the

Commissioner filed his charge, and (b) did not

complain to the company about harassment within the

300-day window; and (4) the complaints of harassment

it did receive and did address prior to the 300-day

window were not actionable. See Mitsubishi, 990

F.Supp. at 1083.

Once the EEOC establishes that a pattern or practice exists, in Phase I, this evidence will determine when the provable pattern or practice began. Any individual claims that fall within that period will be allowed to proceed to the individual relief stage. This method will honor the “continuing violation” nature of the pattern or practice case, without applying the exception as it is traditionally conceived. Id. at 1087. Thus, the EEOC urges me to adopt the rationale of the Mitsubishi court and reject Dial’s arguments as to the timeliness of certain claims. I am inclined to agree with the EEOC. In adopting the approach outlined above, however, I must also address what may initially appear to be an important procedural difference between this case and Mitsubishi. As Dial correctly notes in its brief, Mitsubishi arose from a commissioner’s charge. See Defendant’s Memorandum at 24, filing 94 (arguing that the premises of Mitsubishi do not apply to the present case). The Mitsubishi decision refers frequently to this fact in its discussion of the limitations question. See, e.g., Mitsubishi, 990 F.Supp. at 1083-84 (noting that it was unable to locate any authority “which definitively holds that there is any limitations period applicable to a § 707 [§ 2000e-6] pattern or practice case initiated by the filing of a Commissioner’s charge” (emphasis in original));34 id. at 1085 (recognizing that “[a] Commissioner’s charge alleging a pattern or practice ... involves a continuing violation that occurs over time”); id. at 1086 (observing that “[b]y its nature, the Commissioner’s charge alleging a pattern or practice

of sexual harassment is not filed within 300 days of any particular incident of sexual harassment, because it is not based on an individual charge, but rather on the evidence gathered over a course of time showing a pattern of harassment against many individuals” (citation omitted)); id. (noting that “in a § 707 case there is only the Commissioner’s charge, filed at a single point in time, but alleging discrimination which has a durational and ‘continuing’ aspect that precedes any particular ‘limitations period’ ”); id. (observing that “in a § 707 case, the Commissioner’s charge can allege a variety of discriminatory conduct experienced by a wide-range of individuals, based on its investigation; the Commissioner is not limited to the conduct which an individual charge alleges, as is the case in a § 706 case”).35 Nevertheless, *968 I am persuaded that the Mitsubishi court’s underlying rationale applies with equal force here, where there is a “reasonable nexus” between Allen’s individual charge of sexual harassment and the EEOC’s pattern-or-practice allegations. See supra Part III.C.1; Walner, 91 F.3d at 968 (“[The] EEOC may allege in a complaint whatever unlawful conduct it has uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint.” (citations omitted)). As the court observed, “the very nature of a pattern or practice case attacking systemic discrimination by a company seems to preclude the application of a limitations period.” See Mitsubishi, 990 F.Supp. at 1084. Thus, it seems to me that with respect to the individual claims, “the application of a limitations period in a § 707 [§ 2000e-6] action does not make intuitive or legal sense,” regardless of whether the action is predicated on a commissioner’s charge or an individual’s charge. See id. It also seems to me that in pattern-or-practice litigation, the 300-day requirement is arbitrary as to these individual claims since “the purpose of the limitations period is to prevent the filing of stale claims,” and, as the Mitsubishi court recognized:

34

The court also noted, however, that “[t]here is some

support in the case law for the proposition that the

limitations period of § 706 does not apply in a pattern

or practice case brought under § 707.” Mitsubishi, 990

F.Supp. at 1085 (citing Walner, 91 F.3d at 968; EEOC

v. Continental Oil Co., 393 F.Supp. 167, 170

(D.C.Colo.1975); United States v. Fresno Unified

School Dist., 592 F.2d 1088, 1096 (9th Cir.1979); 4

LEX K. LARSON & ARTHUR LARSON,

EMPLOYMENT DISCRIMINATION § 75.02[2] (2d

ed.1997)); see also supra note 12 and accompanying

text (discussing the Walner decision, which seems to

30

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)

suggest that a § 2000e-6 pattern-or-practice case does not require a valid charge filed in a “timely” manner).

35

The court also stated the following:

Although both a § 706 [§ 2000e-5] case and a §

707 [§ 2000e-6] case can be filed by the EEOC in

its own name and initiated by a “Commissioner’s

charge,” rather than an individual charge, the

converse is not true. A § 707 case cannot be

initiated by a individual charge, and it cannot be

filed as a civil suit by an individual.

Mitsubishi, 990 F.Supp. at 1084 (citing General Tel.

Co., 446 U.S. at 327, 100 S.Ct. 1698) (emphasis

supplied). I respectfully disagree with the italicized

language above. Section 2000e-6 provides, in

relevant part, that “the Commission shall have

authority to investigate and act on a charge of a

pattern or practice of discrimination, whether filed by

or on behalf of a person claiming to be aggrieved or

by a member of the Commission.” See 42 U.S.C. §

2000e-6(e) (emphasis supplied).

[W]here as here, a plaintiff attacks a rule or policy that continued to exist right up into the limitations period, concerns about prejudice to the defendant are absent or diminished ... the continued nature of the policy represents its affirmative perpetuation ... and is susceptible to characterization as a conscious waiver of limitations period protection ... “Simply put, an employer that maintains a continuing violation neither deserves nor obtains repose.” United States EEOC v. City of Chicago, No. 85 C 7281, 1989 WL 134788, at *9 (N.D.Ill. Oct.13, 1989) (emphasis supplied) (quoting EEOC v. Home Ins. Co., 553 F.Supp. 704, 712 (S.D.N.Y.1982), quoted in Mitsubishi, 990 F.Supp. at 1087; Mitsubishi, 990 F.Supp. at 1085).36 In short, the EEOC has persuaded me that the timeliness of the class members’ individual claims cannot be determined at this stage of the litigation; rather, “[o]nce the evidence establishes either the existence or the nonexistence of a pattern or practice, the trier of fact will be able to determine *969 when the pattern or practice actually began and, therefore, who the individuals who were victims of such a pattern or practice actually are for purposes of a statutory bar.” Mitsubishi, 990 F.Supp. at 1087. Thus, Dial’s assertions regarding the timeliness of several class members’ individual claims must fail.37

36

Based on the italicized language, it appears that the

timing requirement of § 2000e-5(e) is not wholly irrelevant in pattern-or-practice litigation. In order to “save the individual claims from a statute of limitations bar,” the pattern or practice of discrimination must have extended into the applicable limitations period. See Mitsubishi, 990 F.Supp. at 1087; see also Jenson, 824 F.Supp. at 878 (“If Plaintiffs establish that Eveleth Mines maintained a company-wide pattern or practice of sexual harassment both before and after December 30, 1983, Eveleth Mines will be liable for acts of sexual harassment reaching back to the commencement of that policy, which Plaintiffs allege to be 1975.” (emphasis supplied)); Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 666 (D.Minn.1991) (“[T]he class period shall be deemed to commence on December 30, 1983, 300 days prior to plaintiff Jenson’s EEOC charge.” (emphasis supplied)); Sears, Roebuck & Co., 490 F.Supp. at 1260-61 (concluding that § 2000e-5(e)’s 180-day limitations period applied to § 2000e-6(c) pattern and practice suit in that the pattern or practice of discrimination must have extended into the 180-day period); Rymer, 1989 WL 88243, at *2 (concluding that “[b]ecause the EEOC alleges a continuous pattern of discrimination against blacks that began in 1979 and extended through the 300 day filing period, all blacks who suffered discrimination during this period may become class members” (citations omitted)).

37

In rejecting Dial’s attempt to exclude those individual

claims based solely on pre-April 5, 1995, events, I do

recognize that “[a]nother significant date is November

21, 1991, when the Civil Rights Act of 1991 took

effect.” EEOC. v. Indiana Bell Tel. Co., 256 F.3d 516,

520 (7th Cir.2001). This act authorizes compensatory

and punitive damages for sex discrimination. See 42

U.S.C. § 1981a. Because it is not retroactive, “only ...

conduct (and injuries female workers sustained) after

that date can lead to compensatory or punitive

damages.” Indiana Bell Tel. Co., at 520 (citing

Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct.

1483, 128 L.Ed.2d 229 (1994)).

IV. Conclusion
In resolving Dial’s motion for summary judgment, I have reached the following conclusions: (1) the EEOC fulfilled Title VII’s requirements with respect to notice and conciliation; (2) Beverly Allen’s charge provides a sufficient basis for the EEOC’s pattern-or-practice suit; (3) a pattern-or-practice action can be brought, both as a
31

E.E.O.C. v. Dial Corp., 156 F.Supp.2d 926 (2001)
general matter and in this case, for sexual harassment claims under §§ 706 and 707 of Title VII; (4) genuine issues of material fact remain as to whether Dial engaged in a pattern or practice of maintaining an environment sexually hostile to women; (5) the Mitsubishi bifurcation model does not violate the Seventh Amendment; (6) Dial’s April 23, 1991, settlement agreement with the EEOC does not limit the EEOC’s proof to post-April 23, 1991, conduct; (7) for purposes of this motion, Dial has abandoned its arguments relating to Title VII releases and the doctrine of ratification; (8) with respect to the individual claims for relief, Dial’s arguments relating to liability and the severity of the alleged misconduct are premature; (9) the timeliness of the class members’ individual claims cannot be determined at this stage of the litigation; and (10) the individual claims for relief of Class Members 9, 20, 22, 25, 37, 52, 60, 63, 70, 84, 94, 98, and 99 will be dismissed, as these individuals were not subjected to actionable sexual harassment while working at the Aurora plant.

IT IS ORDERED that the Defendant’s Motion for Summary Judgment, filing 70, is granted in part and denied in part.
IT IS FURTHER ORDERED that:
(1) the individual claims for relief of Class Members 9, 20, 22, 25, 37, 52, 60, 63, 70, 84, 94, 98, and 99 are dismissed; and
(2) the EEOC shall have 20 days from the date of this order to cure the procedural defects with respect to the declarations of Class Member 27 and 57; if the EEOC fails to cure such defects within this time frame, summary judgment will be granted as to the individual claims for relief of these two class members.
	  

32

 
 E.E.O.C. v. Dial Corp., Not Reported in F.Supp.2d (2000)

2000 WL 684195 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern
Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
DIAL CORPORATION, Defendant.
No. Civ.A. 99 C 3356. | May 16, 2000.
Opinion
MEMORANDUM AND ORDER ON PLAINTIFF EEOC’S MOTION FOR RECONSIDERATION
URBOM, Senior J.
*1 The motion is to reconsider that portion of Judge Aspen’s order of April 18, filing 71, which permits the defendant to file under seal its brief and supporting documents relating to its proposed motion for summary judgment and instructs EEOC to file its response under seal. In the conference by telephone that I had with counsel of both parties on April 28, 2000, it was reported without opposition that the parties did not appear before Judge Aspen and that the plaintiff did not have opportunity to respond to a motion, filing 69. This lack of opportunity probably was because it appeared that the parties had agreed to the disposition of filing 69. The motion resulting in Judge Aspen’s order had with it a document titled “Stipulated Protective Order,” which, indeed, had been stipulated to on December 1, 1999, but there was no stipulation for granting of filing 69, which was Defendant’s Motion for Leave to File Summary Judgment Brief Exceeding 15 Pages and Summary Judgment Submissions Under Seal Pursuant to Existing Protective Order.
It therefore appears to me appropriate for a review of Judge Aspen’s order and a change in it, if necessary.
Dial’s motion submitted to Judge Aspen asserts: Dial’s motion and supporting materials (and presumably EEOC’s responsive submissions) reference to the

identities of 101 current and former employees alleging sexual harassment, and dozens of current and former employees accused of harassment. The current stipulated protective order provides in part:
To the extent that Confidential Information is referred to in any pleading, motion or other paper or document filed with the Court, the parties shall redact any information (such as name and/or date or location) which would serve to identify the individual being discussed. In such event, the redacted version of the paper or document shall be filed with the Clerk and an unredacted version of the submission shall be submitted to the Court under seal. In the event that the redaction of identifying information would not be sufficient to conceal the identify (sic) of the person about whom Confidential Information refers, then the entire portion of the paper or document containing Confidential Information shall be filed under seal.
(Emphasis added). Dial’s brief and supporting materials of necessity refer to alleged harassers and alleged victims of harassment not only by name, but also by when they worked at Dial, their department, their shift, job title, salaried/hourly (supervisory or non-supervisory) status, etc. Consequently, under the existing protective order, because “The redaction of identifying information would not be sufficient to conceal the identity of the person about whom Confidential Information refers, then the entire portion of the paper or document containing Confidential Information shall be filed under seal.”
I am persuaded that redacting the name, when the person worked at Dial, the person’s department, shift, job title and status would assure inability to identify the person but that redacting less than that would not assure inability to identify the person. It has not been shown that redaction would be unnecessarily difficult. The Stipulated Protective Order dated December 1, 1999, anticipates such treatment. It says at paragraph 9:
*2 9. Pleadings and Other Court Submissions. All exhibits containing Confidential Information that are attached to pleadings, motions or other documents shall be redacted so as not to disclose the identity of any alleged victim of sexual harassment, sex-based harassment or other sex-based discrimination, or the identity of any alleged perpetrator of
1

E.E.O.C. v. Dial Corp., Not Reported in F.Supp.2d (2000)

sexual harassment, sex-based harassment or other sex-based discrimination. To the extent that Confidential Information is referred to in any pleading, motion or other paper or document filed with the Court, the parties shall redact any information (such as name and/or date or location) which would serve to identify the individual being discussed. In any event, the redacted version of the paper or document shall be filed with the Clerk and an unredacted version of the submission shall be submitted to the Court under seal. In the event that the redaction of identifying information would not be sufficient to conceal the identity of the person about whom Confidential Information refers, then the entire portion of the paper or document containing Confidential Information shall be filed under seal. (Emphasis added.)
The foregoing is in accordance with In Re Associated Press, 162 F.3d 503 (7 th Cir.1998), wherein it is said that:
Although the Press has no right of access to discovery materials not yet admitted into the record, the district court must provide an explanation for its decision to seal material in its possession, and that explanation must be crafted in such a manner as to make meaningful appellate review possible. Furthermore, the district judge must find good cause for sealing any part of matters submitted to it, must find that the parties are acting in good faith and know the nature of the material that is problematic, and make it explicit that either party and any interested member of the public can challenge the sealing of particular documents. Citizens First National Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943 (7 th Cir.1999).

I cannot on the record before me make a finding that there is good cause for sealing any part of the materials in support of or opposition to the Defendant’s Motion for Summary Judgment, except that material specifically identifying the persons about which information is given, whether by deposition or otherwise. It is true that the name, when he or she worked at Dial, the department, shift, job title, and supervisory or non-supervisory status of the person should be deleted and not made public, so that no identification can be made of persons whose reputation might be unfairly discredited if identification were made.
IT IS ORDERED that: 1. Plaintiff EEOC’s Motion for Reconsideration, filing 73, is granted to the extent stated herein;
2. the Minute Order of April 18, 2000, filing 71, is reconsidered and now is amended insofar as it relates to summary judgment submissions under seal to read as follows:
*3 The parties’ summary judgment submissions shall not be filed or retained under seal, except that each document made a part of such a submission, whether in a brief, deposition, or otherwise, shall have redacted from it any information that would serve to identify the individual being discussed, including only that person’s name, the dates when that person worked at Dial, his or her department, shift, job title, and supervisory or non-supervisory status;
3. if either of the parties has reason to believe that some feature of a particular document would be sufficient upon which to build an identification of the person, other than those features specified herein, it may be brought to my attention so that I can examine the document and determine whether some additional feature should be redacted or otherwise dealt with;
4. the persons about whom information is being provided may be identified by a code, whereby the court and the parties will be informed of the designation for a specific person, whereby only the court and parties become aware of that code; and
5. any interested member of the public may challenge the secreting of any particular document not revealed in full.

2

 
 .~

Case: 1:99-cv-03356 Document #: 313 Filed: 02/14/03 Page 1 of 4 PageID #:690

- Minute Oro:lcr Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

Warren K Urbom
99 c 3356

Sitting Judge if Other than Assigned Judge
DATE

2/14/2003

CASE TITLE
MOTION:

EEOC vs. Dial Corp.
[In the following box(a) indicate the party fihng the mohon, e.g., pla1ntlff, defendant, 3rd partyplamtJff, and (b) stale bncfly the nature of the motion being presented.]

DOCKET ENTRY:

(I) D

Filed motion of [use listing in "Motion" box above.]

(2) D

Brief in support of motion due ___.

(3)

D

Answer brief to motion due_ _ _. Reply to answer brief due_ _ _.

(4)

D

Ruling/Hearing on ___ set for ___ at ___.

(5) D

Status hearing[held/continued to] [set for/re-set for] on ___ set for ___ at ___.

(6)

D

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at ___.

(7) D

Trial[set for/re-set for] on ___ at ___.

(8) D

[Bench/Jury trial] [Hearing] held/continued to _ _ at ___.

(9)

D

This case is dismissed [with/without] prejudice and without costs[by/agreementipursuant to] D FRCP4(m) D Local Rule 4l.l D FRCP4l(a)(l) D FRCP4l(a)(2).

(10) • [Other docket entry] ENTER MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR CLARIFICATION OF THE COURT'S ORDER OF A BIFURCATED TRIAL.

(11) •

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

courtroom deputy's initials

initials
\

Case: 1:99-cv-03356 Document #: 313 Filed: 02/14/03 Page 2 of 4 PageID #:691
·- ·-

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY)

CIVIL ACTION NO. 99 C 3356

COMMISSION,

)

)

Plaintiff,

)

MEMORANDUM AND ORDER ON

)

DEFENDANT'S MOTION FOR

vs.

)

CLARIFICATION OF THE COURT'S

)

ORDER OF A BIFURCATED TRIAL

DIAL CORPORATION,

)

)

Defendant.

)

In my order of August 9, 2001, I said at page 21:

~(>,.

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In the first phase of the proceedings, EEOC will bear the burden of demonstrating a pattern or practice. See Mitsubishi, 990 F. Supp. at 1070-77. The second phase will then focus on individuals' entitlement to relief. !d. at 1077-1082.

Dial seeks clarification "that punitive damages cannot be considered, if at all, until Phase II of the trial."

I shall proceed to attempt to clarify. It will perhaps assuage some of the defendant's concerns, but will not accord with its wants.

My primary guidance in this description of how I see the trial in the interpreting of 42
U.S.C. § 198la (b)(l) comes from General Telephone Company ofthe Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 100 S. Ct. 1698 (1980); BMW ofNorth America Inc., v. Gore, 517 U.S. 559, 116 S. Ct. 1589 (1996),/nternational Brotherhood of Teamsters v. United States, 431 U.S. 324,97 S.Ct. 1843 (1977); International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct.. 2121 (1979); Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118 (1999); Jefferson v. Ingersoll International Inc., 195 F.3d 894 (7'h Cir. 1999); Hennessy v. Penril Datacomm Networks, 69 F.3d 1344 (7'h Cir. 1995);
Shea v. Galaxie Lumber & Construction Co., Ltd., 152 F.3d 729 (7'h Cir. 1998); Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008 (7'h Cir. 1998); Segar v. Smith, 738 F.2d 1249 (D.C. 1984); Equal Employment Opportunity Commission v. Indiana Bell Telephone Company, 256 F.3d 516 (7'h Cir. 2002); United States Equal Employment Commission v. Foster Wheeler Constructors, Inc., 1999 WL 528200 (N.D. Ill.); and the dissenting opinion of Judge Reavley in
Smith v. Texaco, Inc., 263 F.3d 394 (2001).

I conclude that in this case the overall scheme should be that the trial should proceed in this order: ..

Case: 1:99-cv-03356 Document #: 313 Filed: 02/14/03 Page 3 of 4 PageID #:692
First, whether a pattern or practice existed and, if so, when; second, whether any such pattern or practice was done with malice or reckless indifference, and, if so, an amount, if any, of punitive damages to the class; third, compensatory damages; and fourth, an apportionment of any punitive damages. If that be understood as being in four phases, so be it.
Phrased in terms of four phases, Phase I should result by a finding by the jury of whether and when a pattern or practice of tolerating sexual harassment existed. Because evidence to support the claim of such a pattern or practice necessarily will include some episodes that may tend to show whether the pattern or practice was engaged in "with malice or reckless indifference to the federally protected rights" of aggrieved persons of the class, such state-of-the-mind evidence may be received in Phase I and the malice-or-reckless-indifference issue should be decided by the same jury as decides the pattern-or-practice issue. There may be some evidence that is applicable only to the issue of pattern or practice and not at all to the issue of malice or _ reckle_~)ndiffere~~u_c.h._e:vic!_ence, Q[course, should be presenjed_inP\l.a~~-Lihe.remay be__ _ some evidence that pertains solely to the malice-or-reckless-indifference issue and that evidence should be retained until Phase II. Phase II, if Phase I ends in the plaintiffs favor, would end with a verdict of whether the pattern or practice was done with malice or reckless indifference to the federally protected rights of the class members, including an amount to be awarded to the aggrieved persons of the class. That will allow the jury to take into account in Phase II the evidence that pertains to the issue of pattern or practice, as well as other evidence that pertains only to the malice-or-reckless-indifference issue.
Phase III should resolve the issue of compensatory damages, including the subjective feature of the individual claimant, probably requiring the service of more than one jury, if numerous members of the class remain to claim compensatory damages. Phase IV would consist of an apportionment by the punitive damages by the judge to individuals of the class shown to have had some damage, compensable or not, as a result of the pattern or practice engaged in with the requisite malice or reckless indifference.
I am persuaded that awarding a single punitive sum to the class is the best way to go. Expecting several separate juries to determine with reason separate and individual amounts for the purposes of punishment of the defendant and deterrence of the defendant and others from similar unlawful patterns and practices in the future is unrealistic at best. I realize that the matter of allotment of punitive damages may have to be done by the judge, but I think any rigid plan of separate division by the several juries, where no jury would have the benefit of a prior jury's award, or knowledge of the statutory cap or awareness of constitutional strictures, would.result in a series of guesswork decisions beyond reason. The equitable powers of the judge would allow the judge to make a division of punitive damages in light of the compensatory damages, if any, the statutory cap, and the constitutional considerations of BMW ofNorth America Inc. v. Gore, supra. As stated in Segar v. Smith, supra:
Though Teamsters certainly raises a presumption in favor of individualized hearings, the case should not be read as an unyielding limit on a court's equitable power to
-2-

Case: 1:99-cv-03356 Document #: 313 Filed: 02/14/03 Page 4 of 4 PageID #:693

fashion effective relief for proven discrimination. The language of Teamsters ... is not so inflexible; after stating that individual hearings are "usually" required, Teamsters ... , 431 U.S. at 361,97 S.Ct. at 1867, the court went on to note that "[i]n determining the specific remedies to be afforded, a district court is 'to fashion such relief as the particular circumstances of a case may require to effect restitution."' !d. at 364, 97 S.Ct. at 1869, quoting Franks, supra, 424 U.S. at 764, 96 S.Ct. at 1264. Later courts have often faced situations in which the Teamsters hearing preference had to bend to accommodate Title VII's remedial purposes....

!d. at 738 F.2d 1289-90. Division of punitive damages awarded by a jury has the same demand on need as does acquirement of restitution. Multiple trials to determine compensatory damages for many individual plaintiffs are feasible. Not so with punitive damages.

_ __

I am hopefi!Hhatthis m~m_OGJ.n.d)lllJ [mdorder wilLclarify my earliecone_of August 9,

2001. Issues within the issues here addressed remain. They can be resolved hereafter at any

appropriate stage.

IT IS ORDERED that trial shall be conducted essentially in the manner set out in the foregoing memorandum, subject to alterations that may come to be needed.

Dated February 14, 2003.

BY THE COURT

Warren K. Urbom United States Senior District Judge

-3-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---~~-----

 
 Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 1 of 31
LEVIN, PROTO, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 3.2.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:99−cv−03356

EEOC v. Dial Corp Assigned to: Hon. Warren K. Urbom Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 05/20/1999 Date Terminated: 04/29/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Noelle Christine Brennan Noelle Brennan &Associates, Ltd. 20 South Clark Street Suite 1530 Chicago , IL 60603 (312) 422−0001 Email: nbrennan@brennan−monte.com TERMINATED: 09/10/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ines M. Monte The Monte Law Firm, Ltd. 300 South Wacker Dr. Suite 2300 Chicago , IL 60606 (312) 422−0004 Fax: 312−276−5420 Email: imonte@monte−law.com ATTORNEY TO BE NOTICED

Jean Powers Kamp United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago , IL 60661 (312) 353−7568 Email: jean.kamp@eeoc.gov ATTORNEY TO BE NOTICED

John C. Hendrickson United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago , IL 60661 (312) 353−8551 Fax: (312) 353−8555 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

John A. Knight United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago , IL 60661 (312) 353−7568 TERMINATED: 09/10/2004

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 2 of 31

V. Defendant Dial Corporation

represented by Condon A. McGlothlen Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago , IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: cmcglothlen@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimball Richard Anderson Winston &Strawn LLP 35 West Wacker Drive Chicago , IL 60601−9703 (312) 558−5600 Email: kanderson@winston.com TERMINATED: 03/03/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis MacDowall Winston &Strawn LLP 35 West Wacker Drive Chicago , IL 60601−9703 (312) 558−5600 Email: amacdowall@winston.com TERMINATED: 03/03/2003
Camille Annette Olson Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago , IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: colson@seyfarth.com ATTORNEY TO BE NOTICED
David Elliot Metz Seyfarth Shaw LLP 55 Easet Monroe Street Suite 4200 Chicago , IL 60603 (312) 460−5000 Email: david.metz@walgreens.com ATTORNEY TO BE NOTICED
Ellen E. McLaughlin Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago , IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: emclaughlin@seyfarth.com ATTORNEY TO BE NOTICED
James A. Burstein Seyfarth Shaw LLP 55 Easet Monroe Street

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 3 of 31

Suite 4200 Chicago , IL 60603 (312) 460−5000

Laura Anne Lindner Lindner &Marsack, S.C. 225 W. Washington Suite 2200 Chicago , IL 60606 (312) 924−0265 Email: llindner@lindner−marsack.com ATTORNEY TO BE NOTICED

Robert L. Jackson , III Seyfarth Shaw LLP 55 Easet Monroe Street Suite 4200 Chicago , IL 60603 (312) 460−5000

Sheldon Leigh Jeter Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago , IL 60603 312−460−5000 Fax: 847 491 2506 Email: LJeter@Seyfarth.com ATTORNEY TO BE NOTICED

Movant Viad Corp., The

represented by Daniel V. Kinsella Schuyler, Roche &Zwirner P.C. 130 East Randolph Street Suite 3800 Chicago , IL 60601 (312) 565−2400 Fax: 312−565−8300 Email: dkinsella@srzlaw.com ATTORNEY TO BE NOTICED

David T. Maddox Schmitt, Schneck, Smyth &Herrod PC 1221 East Osborn Road Suite 105 Phoenix , AZ 85014−5540 (602) 277−8663 ATTORNEY TO BE NOTICED

V. Intervenor Jane Doe TERMINATED: 12/26/2001
Intervenor John Roe

represented by Daniel V. Kinsella (See above for address) TERMINATED: 12/26/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dale A. Danneman Lewis &Roca 40 North Central Street

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 4 of 31
Suite 1900 Phoenix , AZ 85004 (602) 262−5311 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shayle P. Fox Holland &Knight LLC 131 South Dearborn Street 30th Floor Chicago , IL 60603 (312) 263−3600 Email: shayle.fox@hklaw.com ATTORNEY TO BE NOTICED

Date Filed 05/20/1999
05/26/1999 06/22/1999 06/22/1999 07/20/1999 07/20/1999 07/20/1999 07/23/1999
07/26/1999
08/04/1999
08/04/1999 08/09/1999 08/20/1999
08/27/1999

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of John C. Hendrickson, Jean Powers Kamp, Noelle Christine Brennan as attorney(s) for plaintiff ( no summons(es) issued.) ( Documents: 1−1 through 1−3) (dmkf) (Entered: 05/21/1999)
SCHEDULE set on 5/26/99 by Hon. Marvin E. Aspen : Status hearing is set for 10:00 7/9/99. Plaintiff is to advise defendant of status. Mailed notice (gl) (Entered: 05/26/1999)
SCHEDULE set on 6/22/99 by Hon. Marvin E. Aspen : Status hearing set for 7/9/99 is stricken and is reset to 10:00 7/23/99. Mailed notice (gl) (Entered: 06/22/1999)
2 WAIVER of service of summons as to defendant Dial Corp sent on 5/20/99 (dmkf) (Entered: 06/23/1999)
3 ATTORNEY APPEARANCE for defendant by Condon A. McGlothlen, Ellen E. McLaughlin, James A. Burstein, Robert L. Jackson III (dmkf) (Entered: 07/22/1999)
4 ATTORNEY APPEARANCE for defendant by Sheldon Leigh Jeter (dmkf) (Entered: 07/22/1999)
5 ANSWER to complaint by defendant [1−1] (dmkf) (Entered: 07/22/1999)
SCHEDULE set on 7/23/99 by Hon. Marvin E. Aspen : Status hearing held and continued to 10:00 8/27/99. Parties are to come in with a joint discovery plan. Mailed notice (gl) (Entered: 07/23/1999)
6 REFERRAL ORDER of 07/23/99: The case is referred to the Honorable Ian H. Levin from Honorable Marvin Aspen pursuant to local general rule 2.41(b): Settlement conference. (For further detail see order.) Mailed notice (dmkf) (Entered: 07/26/1999)
SCHEDULE set on 8/4/99 by Hon. Ian H. Levin : Status hearing held; continued to 8:45 8/20/99 . Settlement conference set for 1:30 8/24/99 in courtroom 2494 . Mailed notice (smm) (Entered: 08/04/1999)
7 JOINT STATUS REPORT by plaintiff and defendant in referral case (yap) (Entered: 08/05/1999)
8 AMENDED ANSWER to complaint [5−1] by defendant (dmkf) (Entered: 08/11/1999)
SCHEDULE set on 8/20/99 by Hon. Ian H. Levin : Status hearing held; continued to 9:30 10/8/99 . Settlement conference set for 8/24/99 is vacated. Mailed notice (smm) (Entered: 08/20/1999)
SCHEDULE set on 8/27/99 by Hon. Marvin E. Aspen : Status hearing held and continued to 10:00 2/11/2000. Discovery ordered closed on 2/1/2000. Joint Pretrial order is to be submitted in open court on 10:00 2/11/2000. Real dates. No extensions of time will be granted. Filing of motions of any kind does not stay discovery or filing of pretrial order. Defendant is given to 11/1/99 any counterclaim. Plaintiff's expert(s) should be identified by 12/1/99. Defendant's expert(s) should be identified by 1/1/2000. Mailed notice (gl) (Entered: 08/27/1999)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 5 of 31

09/09/1999 10/08/1999
10/28/1999
11/01/1999 11/01/1999 11/01/1999 11/02/1999 11/03/1999 11/03/1999 11/03/1999
11/05/1999
11/15/1999 11/19/1999 11/22/1999 11/23/1999 11/23/1999
11/24/1999 12/01/1999

9 ATTORNEY APPEARANCE for plaintiff by Ines M. Monte; Notice of filing. (dmkf) (Entered: 09/16/1999)
10 MINUTE ORDER of 10/8/99 by Hon. Ian H. Levin : Status hearing held. Settlement conference set for 12/1/99 at 1:15p.m. The settlement conference will be conducted in accordance with the court's standing order settlement conferneces, which is enclosed. Parties with ultimate settlement authority must be personally present. Mailed notice (dmkf) (Entered: 10/12/1999)
13 MOTION by defendant to compel plaintiff EEOC to produce all questionnaires and related information received from alleged victims of sexual of sex−based harassment, and/or women who allege they have information concerning sexual or sex−based harassment (Attachments); Notice of motion. (dmkf) (Entered: 11/02/1999)
11 RESPONSE by plaintiff to defendant's motion to compel discovery. (dmkf) (Entered: 11/02/1999)
12 EMERGENCY MOTION by plaintiff for protective order (Attachments); Notice of motion. (dmkf) (Entered: 11/02/1999)
18 MOTION by defendant for leave to file second amended complaint (Attachments); Notice of motion. (dmkf) (Entered: 11/08/1999)
14 MINUTE ORDER of 11/2/99 by Hon. Marvin E. Aspen: The referral to Magistrate Judge Levin is enhanced to include defendant's motion to compel and motion for protective order re [12−1], re [13−1]. Telephoned notice (dmkf) (Entered: 11/02/1999)
15 RESPONSE by defendant to EEOC's emergency motion for protective order [12−1] (Attachments). (dmkf) (Entered: 11/04/1999)
16 MINUTE ORDER of 11/3/99 by Hon. Ian H. Levin: Defendant's motion to compel is denied for the reasons stated of record [13−1]. No notice (dmkf) (Entered: 11/04/1999)
17 MINUTE ORDER of 11/3/99 by Hon. Ian H. Levin: Motion hearing held. EEOC's emergency motion for protective order is granted [12−1] for the reasons stated and on the terms stated of record. Defendant and any of its officers, directors, managers, agents, or attorneys are prohibited from engaging in ex parte communication with any of subject 96 identified class members in EEOC's litigation in this matter. Plaintiff shall produce by 11/19/99 an attorney's affidavit on the terms stated of record. Mailed notice (dmkf) (Entered: 11/04/1999)
19 MINUTE ORDER of 11/5/99 by Hon. Marvin E. Aspen: Defendant counsel appears for motion. Defendant's motion for leave to file second amended answer is allowed [18−1], with the understanding that it is not goring to alter discovery timetable. Mailed notice (dmkf) (Entered: 11/08/1999)
20 MOTION by plaintiff to vacate the order entered by this court on 11/05/99 (Attachment); Notice of motion. (dmkf) (Entered: 11/19/1999)
21 MINUTE ORDER of 11/19/99 by Hon. Marvin E. Aspen: Filed plaintiff's motion to vacate this court's order of 11/05/99. Answer brief to motion due 12/01/99. Reply to answer brief due 12/6/99. Mailed notice (dmkf) (Entered: 11/19/1999)
SCHEDULE set on 11/22/99 by Hon. Marvin E. Aspen : Noticed motion set for 9:30 11/23/99. No notice (gl) (Entered: 11/22/1999)
22 MOTION by plaintiff to extend the time for disclosure of experts (Attachments); Notice of motion. (dmkf) (Entered: 11/24/1999)
23 MINUTE ORDER of 11/23/99 by Hon. Marvin E. Aspen: Plaintiff's motion to extend for disclosure of experts until 03/15/00 is granted [22−1]. The status hearing and for filing of the joint pretrial order set for 02/11/00 is reset to 3/31/00 at 10:00a.m. No further extensions. Mailed notice (dmkf) (Entered: 11/24/1999)
24 TRANSCRIPT of proceedings for the following date(s): held on 11/03/99 before Honorable Ian H. Levin (dmkf) (Entered: 11/24/1999)
26 JOINT MOTION by plaintiff, defendant for entry of a stipulated protective order (Attachment); Notice of motion. (dmkf) (Entered: 12/03/1999)

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12/01/1999 12/02/1999 12/03/1999 12/06/1999 12/09/1999 12/10/1999
12/10/1999
12/30/1999 01/04/2000 01/10/2000 01/13/2000 01/18/2000 01/21/2000 01/21/2000 01/24/2000 01/25/2000
02/03/2000 02/04/2000 02/08/2000 02/09/2000

SCHEDULE set on 12/1/99 by Hon. Ian H. Levin : Settlement conference held. Status hearing on settlement set to 9:00 1/10/00 . Mailed notice (smm) (Entered: 12/07/1999)
25 RESPONSE by defendant to motion to vacate the order entered by this court on 11/05/99 [20−1]; Notice of filing. (dmkf) (Entered: 12/03/1999)
27 MINUTE ORDER of 12/3/99 by Hon. Marvin E. Aspen: Joint motion for entry of a stipulated protective order is granted. (Enter stipulated protective order.) Telephoned notice (dmkf) Modified on 12/03/1999 (Entered: 12/03/1999)
28 REPLY by plaintiff to defendant's response in opposition to plaintiff's motion to vacate [25−1] (Attachments). (dmkf) (Entered: 12/08/1999)
SCHEDULE set on 12/9/99 by Hon. Marvin E. Aspen : Status hearing is set for 10:00 12/10/99. Telephoned notice (gl) (Entered: 12/09/1999)
SCHEDULE set on 12/10/99 by Hon. Marvin E. Aspen : Status hearing held and continued to 10:00 4/7/2000. Discovery is extended to 3/15/2000. Pretrial order is to be filed in open court on 4/7/2000 at 10:00 a.m. The status hearing and for filing of the pretrial order set for 3/31/2000 is stricken. Mailed notice (gl) (Entered: 12/13/1999)
29 MINUTE ORDER of 12/10/99 by Hon. Marvin E. Aspen: The court stands by its order of 11/05/99, and allows defendant's leave to file second amended answer with affirmative defenses conditional on the defendant answering outstanding disovery. Defendant is to produce documents as to the five previously identified plaintiffs within one week. Plaintiff's motion to vacate is denied at moot [20−1]. Mailed notice (dmkf) (Entered: 12/14/1999)
30 MOTION by plaintiff to compel defendant to fully respond to certain interrogatories and document requests (Attachments); Notice of motion. (dmkf) (Entered: 01/04/2000)
31 MINUTE ORDER of 1/4/00 by Hon. Marvin E. Aspen: The referral to Magistrate Judge Levin is enhanced to include plaintiff's motion to compel re [30−1]. No notice (dmkf) (Entered: 01/04/2000)
32 MINUTE ORDER of 1/10/00 by Hon. Ian H. Levin: Plaintiff's motion to compel is granted in part and denied in part on the terms stated of record [30−1]. Status hearing held and continued to 1/24/00 at 11:00a.m. Mailed notice (dmkf) (Entered: 01/12/2000)
33 ATTORNEY APPEARANCE for defendant by Laura Anne Lindner, David Elliot Metz (dmkf) (Entered: 01/13/2000)
35 NOTICE of filing by defendant of hearing transcript; (Attachment). (mbw) (Entered: 01/25/2000)
34 ATTORNEY APPEARANCE for plaintiff by John A. Knight (yap) (Entered: 01/25/2000)
36 MOTION by plaintiff to strike Dial's eighth affirmative defense for failure to comply with this court's order (Attachments); Notice of motion. (dmkf) (Entered: 01/27/2000)
SCHEDULE set on 1/24/00 by Hon. Ian H. Levin : Status hearing held; continued to 9:30 3/13/00 . Mailed notice (smm) (Entered: 01/26/2000)
37 MINUTE ORDER of 1/25/00 by Hon. Marvin E. Aspen: Filed EEOC's motion to strike Dial's eighth affirmative defense for failure to comply with this court's order [36−1]. Answer brief to motion due 02/03/00. Reply to answer brief due 2/8/00. Mailed notice (dmkf) (Entered: 01/27/2000)
38 TRANSCRIPT of proceedings for the following date(s): held on 01/10/00 before Honorable Ian H. Levin (dmkf) (Entered: 02/03/2000)
39 RESPONSE by defendant in opposition to plaintiff's motion to strike Dial's eighth affirmative defense [36−1] (Attachment). (dmkf) (Entered: 02/08/2000)
40 REPLY by plaintiff to defendant's response in opposition to plaintiff's motion to strike Dial's eighth affirmative defense [36−1] (Attachments). (dmkf) (Entered: 02/11/2000)
41 MOTION by plaintiff to compel discovery: For inspection of premises at which sexually hostile and abusive work environment maintained by Dial Corporation (Attachments); Notice (ar) (Entered: 02/11/2000)

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02/10/2000 02/14/2000 02/15/2000 02/17/2000 02/17/2000 02/18/2000 02/22/2000 02/25/2000
02/25/2000 02/28/2000 02/28/2000 02/29/2000
02/29/2000 02/29/2000 02/29/2000 02/29/2000 03/02/2000 03/13/2000 03/15/2000

42 MINUTE ORDER of 2/10/00 by Hon. Marvin E. Aspen : The referral to Magistrate Judge Levin is enhanced to include plaintiff's motion to compel [41−1]. No notice (ar) (Entered: 02/11/2000)
47 MINUTE ORDER of 2/14/00 by Hon. Marvin E. Aspen: The referral to Magistrate Judge Levin is enhanced to include plaintiff's motion to strike Dial's eighth affirmative defense for failure to comply with this court's order. Mailed notice (dmkf) (Entered: 02/25/2000)
48 MOTION by plaintiff for an order to show cause why Paul Jones should not be held in contempt for failure to comply with deposition subpoena (Attachments); Notice of motion. (dmkf) (Entered: 02/28/2000)
43 MOTION by plaintiff for clarification of expert disclosure discovery schedule (Attachments); Notice of motion. (dmkf) (Entered: 02/22/2000)
46 AMENDED RESPONSE by defendant to plaintiff's motion to compel inspection of premises [41−1] (Attachment); Notice. (srb) (Entered: 02/22/2000)
44 REPLY by plaintiff to defendant's response in opposition to plaintiff's motion to compel inspection of premises [41−1] (Attachment); Notice of filing. (dmkf) (Entered: 02/22/2000)
45 MINUTE ORDER of 2/22/00 by Hon. Marvin E. Aspen: Filed plaintiff's motion for clarification of expert disclosure discovery schedule [43−1]. Answer brief to motion due 02/29/00. Reply to answer brief due 3/2/00. Mailed notice (dmkf) (Entered: 02/22/2000)
49 MINUTE ORDER of 2/25/00 by Hon. Marvin E. Aspen: The referral to Magistrate Judge Levin is enhanced to include plaintiff's motion for an order to show cause why Paul Jones should not be held in contempt for failure to comply with deposition subpoena. No notice (dmkf) (Entered: 02/28/2000)
50 NOTICE by plaintiff of motion to strike Dial's eighth affirmative defense for failure to comply with this court's order [36−1] and motion to compel discovery: For inspection of premises . [41−1] (tlm) (Entered: 03/02/2000)
54 MOTION by defendant to compel class member depositions plus related documents and testimony (Attachment); Notice. (tlm) (Entered: 03/02/2000)
57 SURREPLY by defendant in opposition to plaintiff's motion to compel inspection of premises [41−1] and plaintiff's motion to strike Dial's eighth affirmative defense [36−1] (Attachments). (srb) (Entered: 03/03/2000)
51 MINUTE ORDER of 2/29/00 by Hon. Ian H. Levin : Plaintiff EEEOC's motion to strike affirmative defense [36−1] and to compel discovery and inspection of premises is granted [41−1] in part and denied in part on the terms as stated. No notice (tlm) (Entered: 03/02/2000)
52 MINUTE ORDER of 2/29/00 by Hon. Ian H. Levin : Plaintiff's motion to strike [36−1] is denied. Defendant to submit supplemental responses by 03/07/00. Plaintiff to produce records by 03/08/00. No notice (tlm) (Entered: 03/02/2000)
53 MINUTE ORDER of 2/29/00 by Hon. Ian H. Levin : Plaintiff's motion for an order to show cause is withdrawn without prejudice. [48−1] No notice (tlm) (Entered: 03/02/2000)
55 RESPONSE by defendant to EEOC's motion for clarification of expert disclosure discovery schedule; Notice. [43−1] (tlm) (Entered: 03/02/2000)
56 MINUTE ORDER of 2/29/00 by Hon. Ian H. Levin : Defendant's motion to compel class member depositions plus related documents and testimony is granted in part and denied in part on the terms stated of record. [54−1] No notice (tlm) (Entered: 03/02/2000)
58 REPLY by plaintiff to defendant's response to plaintiff's motion for clarification of expert disclosure schedule [43−1] (Attachment); Notice of filing. (dmkf) (Entered: 03/15/2000)
SCHEDULE set on 3/13/00 by Hon. Ian H. Levin : Status hearing held and continued to 10:15 a.m. 4/5/00 . Mailed notice (ldg) (Entered: 03/13/2000)
59 MINUTE ORDER of 3/15/00 by Hon. Marvin E. Aspen: The referral to magistrate Judge Levin is enhanced to include expeditious ruling on plaintiff's fully−briefed motion for clarification of expert disclosure schedule. Mailed notice (dmkf) (Entered: 03/16/2000)

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03/16/2000
03/23/2000 03/24/2000 03/28/2000 03/29/2000 03/30/2000 03/30/2000 04/04/2000
04/04/2000
04/05/2000 04/05/2000 04/13/2000 04/13/2000 04/18/2000
04/18/2000
04/19/2000 04/21/2000 04/25/2000

60 MINUTE ORDER of 3/16/00 by Hon. Ian H. Levin : Plaintiff EEOC's motion for clarification of expert disclosure discovery schedule [43−1] to extend for disclosure of experts is granted to and including 04/30/00. (See reverse of minute order.) Notice mailed by Magistrate Judge's staff (ar) Modified on 03/21/2000 (Entered: 03/21/2000)
62 MOTION by defendant to clarify/confirm expert disclosure schedule (Attachments); Notice (ar) (Entered: 03/30/2000)
61 TRANSCRIPT of proceedings for the following date(s): 02/29/00 before the Honorable Ian H. Levin (1 vol.) (ar) (Entered: 03/27/2000)
63 MINUTE ORDER of 3/28/00 by Hon. Ian H. Levin : Defendant's motion to clarify/confirm expert disclosure schedule is hereby withdrawn without prejudice [62−1]. No notice (ar) (Entered: 03/30/2000)
SCHEDULE set on 3/29/00 by Hon. Marvin E. Aspen : Status hearing and for filing of the joint pretrial order set or 4/7/00 is stricken and reset to 10:00 4/18/00. Mailed notice (gl) (Entered: 03/29/2000)
64 MOTION by plaintiff to reset due date for pretrial order (Attachments); Notice (rmm) (Entered: 04/06/2000)
65 MOTION by plaintiff to continue pretrial order date ; Notice (rmm) (Entered: 04/06/2000)
66 MINUTE ORDER of 4/4/00 by Hon. Marvin E. Aspen : Motion to reset due date for pretrial order is granted [64−1]. As stated in open court, fact discvoery is closed. All expert discovery is closed 8/31/00. The status hearing and for filing of the joint pretrial order set 4/18/00 is reset to 10:00 a.m. on 9/15/00. No further extensions. Mailed notice (rmm) (Entered: 04/06/2000)
67 MINUTE ORDER of 4/4/00 by Hon. Marvin E. Aspen : Motion to continue pretrial order date is granted [65−1]. As stated in open court, fact discvoery is closed. All expert discovery is closed 8/31/00. The status hearing and for filing of the joint pretrial order set 4/18/00 is reset to 10:00 a.m. on 9/15/00. No further extensions. Mailed notice Mailed notice (rmm) (Entered: 04/06/2000)
SCHEDULE set on 4/5/00 by Hon. Ian H. Levin : Status hearing held; continued to 10:15 5/18/00 . Mailed notice (smm) (Entered: 04/06/2000)
68 REASSIGNMENT ORDER of 4/5/00 Case reassigned to Hon. Warren K. Urbom from the Hon. Marvin Aspen pursuant to Rule 13 of the Internal Operating Procedures. (For further detail see order.) Mailed notice (ar) (Entered: 04/07/2000)
69 MOTION by defendant for leave to file summary judgment brief exceeding 15 pages and summary judgment submissions under seal pursuant to existing protective order (Attachment); Notice (ar) (Entered: 04/18/2000)
70 MOTION by defendant for summary judgment ; Notice (ar) (Entered: 04/18/2000)
71 MINUTE ORDER of 4/18/00 by Hon. Marvin E. Aspen : Defendant's motion for leave to file summary judgment brief exceeding 15 pages and summary judgment submissions under seal pursuant to existing protective order is allowed [69−1] [69−2]. Memo is to be 30 pages in length. Mailed notice (ar) (Entered: 04/18/2000)
72 MINUTE ORDER of 4/18/00 by Hon. Marvin E. Aspen : Brief in support of defendant's motion for summary judgment due 05/02/00 [70−1]. Answer brief to defendant's motion for summary judgment due 05/17/00. Reply to answer brief due 05/24/00. Mailed notice (ar) (Entered: 04/18/2000)
73 MOTION by plaintiff for reconsideration of order entered 04/17/00 (Attachment); Notice (ar) (Entered: 04/24/2000)
74 MOTION by defendant to compel expert deposition per court−ordered briefing schedule (Attachments); Notice (ar) (Entered: 04/26/2000)
75 MINUTE ORDER of 4/25/00 by Hon. Marvin E. Aspen : The referral to Magistrate Judge Levin is enhanced to include defendant's motion to compel expert deposition [74−1]. Telephoned notice (ar) (Entered: 04/26/2000)

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04/27/2000 04/27/2000 04/27/2000 04/28/2000
04/28/2000
04/28/2000
04/28/2000 05/01/2000 05/02/2000
05/02/2000 05/08/2000 05/16/2000
05/16/2000
05/18/2000 05/18/2000

77 RESPONSE by plaintiff to Dial's motion to compel expert deposition [74−1] (Attachments); Notice (ar) Modified on 04/28/2000 (Entered: 04/28/2000)
78 MOTION by plaintiff for leave to file summary judgment brief and for extension of time to file response (Attachment) (ar) (Entered: 04/28/2000)
76 DOCUMENT stricken pursuant to order of 04/28/00 [81−1] (ar) Modified on 05/02/2000 (Entered: 05/02/2000)
79 MINUTE ORDER of 4/28/00 by Hon. Warren K. Urbom : Plaintiff's motion for reconsideration, Dial's moton to compel expert deposition and plaintiff's motion for leave to file summary judgment brief exceeding fifteen pages and for extension, will be resolved after further conversation with counsel [73−1] [74−1] [78−1] [78−2]. (Entered Memorandum and Order on Three Pending Motions) Notice mailed by Judge's staff (ar) Modified on 05/02/2000 (Entered: 05/02/2000)
80 MINUTE ORDER of 4/28/00 by Hon. Warren K. Urbom : Plaintiff's motion to reopen discovery for limited purpose of conducting deposition of Jane Doe is granted [76−1]. (Entered Memorandum and Order on Equal Employment Opportunity Commission's Motion to Reopen Discovery for Limited Purpose of Conducting Deposition of Jane Doe) Notice mailed by Judge's staff (ar) (Entered: 05/02/2000)
81 MINUTE ORDER of 4/28/00 by Hon. Warren K. Urbom : The Clerk of the Court is directed to substitute the EEOC's corrected motion to reopen discovery for limited purpose of conducting deposition of Jane Doe for EEC's motion to reopen discovery for limited purpose of conducting deposition of Jane Doe [76−1] and return the time−stamped original of the motion and copies of the exhibits accompanying the time−stamped original to the EEOC for destruction or to destroy the original motion and exhibits. (Entered Order to Substitute Motion in Court File) Notice mailed by Judge's staff (ar) (Entered: 05/02/2000)
82 CORRECTED MOTION by plaintiff to reopen discovery for limited purpose of conducting deposition of Jane Doe (Attachments); Notice (ar) Modified on 05/24/2000 (Entered: 05/02/2000)
83 REPLY by plaintiff to defendant's response in opposition to plaintiff's motion to reconsider [73−1]; Notice (ar) Modified on 05/02/2000 (Entered: 05/02/2000)
MAILED to Noelle Christine Brennan, counsel for plaintiff, the original document entitled Notice of Filing; Equal Employment Opportunity Commission's Motion to Reopen Discovery for Limited Purpose of Conducting Deposition of Jane Doe with Exhibits A,B,C,D and E attached [76−1], via certified mail no. Z−332−066−032 (ar) (Entered: 05/02/2000)
89 NOTICE of removal of material from the the custody of the Clerk's office: EEOC's motion to reopen discovery for limited purpose of conducting deposition of Jane Doe; Notice (Exhibits A−E) [76−1]. Mailed to Noelle C. Brennan, counsel for EEOC. (ar) (Entered: 06/01/2000)
84 RETURN of certified receipt no. Z−332−066−032 (ar) (Entered: 05/11/2000)
85 MINUTE ORDER of 5/16/00 by Hon. Warren K. Urbom : The defendant shall, on or before 05/31/00, file and serve its response to the plaintiff's motion to reopen discovery for limited purpose of conducting deposition of Jane Doe [82−1]. The plaintiff shall, on or before 06/09/00, file and serve its reply. (Entered briefing schedule on corrected motion to reopen discovery for the limited purpose of conducting deposition of Jan Doe) Notice mailed by Judge's staff (ar) Modified on 05/24/2000 (Entered: 05/24/2000)
86 MINUTE ORDER of 5/16/00 by Hon. Warren K. Urbom : Plaintiff's motion for reconsideration [73−1] is granted to the extent stated in this order. The minute order of 04/18/00 [71−1] is reconsidered and is amended. Entered Memorandum and Order on Plaintiff EEOC's Motion for Reconsideration. Notice mailed by Judge's staff (ar) Modified on 05/24/2000 (Entered: 05/24/2000)
SCHEDULE set on 5/18/00 by Hon. Ian H. Levin : Status hearing held; continued to 10:15 8/9/00 . Mailed notice (smm) (Entered: 05/22/2000)
87 MINUTE ORDER of 5/18/00 by Hon. Warren K. Urbom : Telephone conference held on 05/17/00. The briefing schedule on plaintiff's corrected motion to reopen discovery is vacated [82−1]. Dial's motion to compel is deemed moot [74−1]. Plaintiff's motion for leave

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to file summary judgment brief exceeding fifteen pages and for extension of time is granted [78−1] [78−2]. (Entered Scheduling Order and Ruling on Pending Motions) Notice mailed by Judge's staff (ar) Modified on 05/24/2000 (Entered: 05/24/2000)

05/26/2000 90 MOTION by plaintiff EEOC for clarification of prior permitting deposition of Jane Doe (Attachments); Notice. (vmj) (Entered: 06/02/2000)

05/30/2000 88 Document stricken pursuant to order dated 5/31/00 (eav) (Entered: 06/09/2000)

05/31/2000 92 MINUTE ORDER of 5/31/00 by Hon. Warren K. Urbom : EEOC's motion for clarification of prior order permitting deposition of Jane Doe [90−1] is denied. (Entered Memorandum and Order) Mailed notice (eav) (Entered: 06/09/2000)

05/31/2000

93 MINUTE ORDER of 5/31/00 by Hon. Warren K. Urbom : The Clerk of the U.S. District Court for the Northern District of Illinois is to substitute Dial's corrected response to EEOC's motion for clarification of prior order permitting deposition of Jane Doe, for Dial's response to EEOC's motion for clarification of prior order permitting deposition of jane Doe (which was filed on 5/30/00), and to return the file−stamped original of the motion and copies of the exhibits accompanying the file stamped original to the Dial Corporation for destruction, or to destroy, the original motion and exhibit. (Entered Order) Mailed notice (eav) (Entered: 06/09/2000)

06/01/2000 91 AMENDED RESPONSE [88−1] by defendant to EEOC's motion for clarification of prior order permitting deposition of Jane Doe [82−1] (Attachments) (ar) (Entered: 06/06/2000)

06/08/2000 94 MEMORANDUM of law by defendant in support of its motion for summary judgment [70−1] (ar) (Entered: 06/12/2000)

06/08/2000 96 LOCAL RULE 56.1 Statement of material facts as to which there is no genuine issue by defendant (1 vol.) (ar) (Entered: 06/12/2000)

06/08/2000 99 MOTION by defendant for leave to file its narrative appendix in support of its motion for summary judgment (ar) (Entered: 06/13/2000)

06/09/2000

FORWARDED by mailing on 6/9/00 Original of the Dial's response to EEOC's motion for clarification of prior order permitting deposition of Jane Doe (which was filed on 5/30/00) and exhibits accompanying the file stamped original to the Dial Corporation's Attorney Condon A. McGlothlen for destruction, or to destroy, the original motion and exhibit and copy of Judge Urbom's order dated 5/31/00 via certified mail no. Z 341 947 214 (eav) (Entered: 06/09/2000)

06/09/2000 95 NARRATIVE APPENDIX filed by defendant in support of its motion for summary judgment [70−1] (ar) (Entered: 06/12/2000)

06/09/2000 97 MOTION by defendant instanter for extension of time to file its supporting summary judgment papers (ar) (Entered: 06/12/2000)

06/09/2000 98 APPENDICES filed by defendant in support of its Local 56.1 statement of material facts as to which there is no genuine issue [96−1] (4 vols. V, VI, VII and VIII; Doc. Nos. 98−1 through 98−4) (ar) Modified on 06/22/2000 (Entered: 06/12/2000)

06/09/2000 101 MINUTE ORDER of 6/9/00 by Hon. Warren K. Urbom : Defendant's motion for leave to file its narrative appendix in support of its motion for summary judgment is granted [99−1]. Defendant's motion instanter for extension of time to file its supporting summary judgment papers is granted [97−1]. (Entered Order) Notices mailed by Judge's staff (ar) Modified on 06/21/2000 (Entered: 06/21/2000)

06/15/2000 100 RETURN of certified receipt no. Z−341−947−214 (ar) (Entered: 06/15/2000)

06/21/2000 102 FOUR VOLUMES OF APPENDICES filed by defendant to its Local 56.1 statement of material facts as to which there is no genuine issue [96−1] (Vols. I,II,III and IV, #102−1 through #102−4) (ar) Modified on 06/22/2000 (Entered: 06/22/2000)

06/21/2000 103 MOTION instanter by defendant for extension of time to file redacted Volumes I−IV of its summary judgment appendix (ar) (Entered: 06/22/2000)

06/21/2000 104 MOTION by defendant to compel production of expert documents (Attachments) (ar) (Entered: 06/22/2000)

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06/21/2000 105 MINUTE ORDER of 6/21/00 by Hon. Ian H. Levin : Defendant's motion to compel expert deposition is moot [74−1]. All matters relating to the referal of this action having been resolved, the case is returned to the assigned judge. Terminating the case referral to Hon. Ian H. Levin and referral of motions [70−1] [82−1] [103−1] [104−1]. Mailed notice (ar) (Entered: 06/22/2000)
06/22/2000 106 MINUTE ORDER of 6/22/00 by Hon. Warren K. Urbom : Plaintiff shall have until 06/26/00 to respond to the defendant's motion to compel production of expert documents [104−1]. The defendant may reply on or before 06/27/00. (Entered Scheduling Order on Defendant's Motion to Compel Production of Expert Documents) Notice mailed by Judge's staff (ar) Modified on 06/27/2000 (Entered: 06/27/2000)
06/22/2000 107 MINUTE ORDER of 6/22/00 by Hon. Warren K. Urbom : Defendant's motion for extension of time to file redacted Volumes I−IV of its summary judgment appendix is granted [103−1]. (Entered Order on Defendant's Motion Instanter for Extension of Time to File Redacted Volumes I−IV of Its Summary Judgment Appendix) Notice mailed by Judge's staff (ar) (Entered: 06/27/2000)
06/27/2000 108 RESPONSE by plaintiff to defendant's motion to compel production of expert documents [104−1] (Attachments); Notice (ar) (Entered: 06/28/2000)
06/27/2000 109 REPLY memorandum by defendant in support of its motion to compel production of expert documents [104−1] (Attachments) (ar) (Entered: 06/28/2000)
06/28/2000 110 MINUTE ORDER of 6/28/00 by Hon. Warren K. Urbom : Defendant's motion to compel production of expert documents is granted [104−1]. (Entered Memorandum and Order on the Defendant's Motion to Compel Production of Expert Documents) Notice mailed by Judge's staff (ar) (Entered: 07/10/2000)
07/24/2000 112 MOTION by defendant to extend its expert disclosure deadline and summary judgment briefing schedule (yap) (Entered: 07/27/2000)
07/25/2000 114 MINUTE ORDER of 7/25/00 by Hon. Warren K. Urbom : Defendant shall, on or before 08/09/00, file and serve its response to EEOC's motion to unseal briefs, hearing transcript, court order and deposition of Jane Doe [111−1]. The plaintiff may, on or before 08/16/00, file and serve its reply. (Entered Briefing Schedule) Notice mailed by Judge's staff (ar) (Entered: 08/01/2000)
07/25/2000 115 MINUTE ORDER of 7/25/00 by Hon. Warren K. Urbom : Dial Corp. shall comply with FRCP 26(a)(2) by 08/25/00. EEOC shall take the deposition of Dial's expert, Dr. Barbara Guteck, on 09/21/00 and 09/22/00. EEOC shall response to Dial Corp.'s motion for summary judgment [70−1] on or before 11/17/00. Dial Corp. shall reply on or before 01/19/01. Pretrial order shall be filed on or before thirty (30) days after the court's decision on Dial's motion for summary judgment. (Entered Order on Defendant's Motion to Extend Its Disclosure Deadline and Summary Judgment Briefing Schedule) Notice mailed by Judge's staff (ar) (Entered: 08/01/2000)
07/26/2000 111 MOTION by plaintiff to unseal briefs, hearing transcript, court order and deposition of Jane Doe (Attachment); Notice (ar) (Entered: 07/26/2000)
07/28/2000 113 RESPONSE by plaintiff to Dial's motion to extend its expert disclosure deadline and summary judgment briefing schedule [112−1] [112−2]; Notice (ar) (Entered: 08/01/2000)
08/01/2000 117 MINUTE ORDER of 8/1/00 by Hon. Warren K. Urbom : Plaintiff may deliver to its expert, Dr. Fitzgerald, a copy of the transcript of the deposition of Jane Doe. Dr. Fitzgerald shall maintain complete confidentiality of the contents of that transcript, revealing them to no person, except counsel in this case, and using them only for the purposes of this case. (Entered Order on Disclosure of Deposition to Expert) Notices mailed by Judge's staff (ar) (Entered: 08/12/2000)
08/07/2000 116 TRANSCRIPTS of proceedings for the following date(s): 07/23/99 and 12/10/99 before Honorable Marvin E. Aspen (2 vols.) (ar) (Entered: 08/09/2000)
08/07/2000 118 MINUTE ORDER of 8/7/00 by Hon. Warren K. Urbom : Defendant's unopposed motion for extension to respond to EEOC's motion to unseal Jane Doe materials is granted. Defendant shall, on or before 08/21/00, file and serve its response to EEOC's motion to unseal Jan Doe materials. Plaintiff may, on or before 08/28/00, file and serve its reply to said motion [111−1]. (Entered Order on Defendant's Unopposed Motion for Extension to Respond to

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 12 of 31

EEOC's Motion to Unseal Jane Doe Materials) Notice mailed by Judge's staff (ar) (Entered: 08/16/2000)

08/08/2000

SCHEDULE set on 8/8/00 by Hon. Ian H. Levin : Status hearing of 8/9/00 is stricken. Telephone notice (smm) (Entered: 08/08/2000)

08/21/2000 119 MOTION by Viad Corp to intervene pursuant to Rule 24 FRCP (RESTRICTED) (emd) (Entered: 08/22/2000)

08/21/2000 120 DESIGNATION of local counsel by Viad Corp (RESTRICTED). (emd) (Entered: 08/22/2000)

08/21/2000 121 RESPONSE by Viad Corp in opposition to EEOC's motion to unseal and motion for protective order pending decision of court on motion for summary judgment and determinationa of admissibility. (RESTRICTED) (emd) (Entered: 08/22/2000)

08/21/2000 122 RESPONSE in opposition by defendant to plaintiff's motion to unseal Jane Doe record and deposition transcript [111−1] (RESTRICTED). (emd) (Entered: 08/22/2000)

08/21/2000 123 MOTION by petitioner Jane Doe for leave to appearances instanter . (maf) (Entered: 08/23/2000)

08/21/2000 124 ATTORNEY APPEARANCE for Jane Doe by Kimball Richard Anderson, T. Alexis MacDowall. (maf) (Entered: 08/23/2000)

08/21/2000 125 MOTION by John Roe to intervene pursuant to Rule 24(b) Fed. R. Civ. P. (RESTRICTED). (maf) (Entered: 08/23/2000)

08/21/2000 126 MOTION by John Roe to continue protective order (RESTRICTED). (maf) Modified on 08/23/2000 (Entered: 08/23/2000)

08/21/2000 127 MOTION by John Roe for leave to file declaration under seal (RESTRICTED). (maf) (Entered: 08/23/2000)

08/21/2000 128 PETITION by Jane Doe for leave to intervene (Attachments) (RESTRICTED). (maf) Modified on 08/23/2000 (Entered: 08/23/2000)

08/21/2000 130 ATTORNEY APPEARANCE for Viad Corp by Daniel V. Kinsella. (kef) (Entered: 08/24/2000)

08/21/2000 157 APPLICATION for leave to appear pro hac vice by David T. Maddox for Viad Corp ; Order entered granting leave by Hon. Warren K. Urbom (yap) (Entered: 10/11/2000)

08/22/2000 129 DESIGNATION by intervenor John Roe of local counsel for service. (mbw) (Entered: 08/24/2000)

08/23/2000 131 MOTION by defendant in limine to exclude testimony of Jane Doe and related evidence ; Memorandum in support (Attachments); Notice. (maf) (Entered: 08/24/2000)

08/23/2000 132 EXHIBIT 2 by defendant in support of its memorandum in support of its motion in limine to exclude testimony of Jane Doe and related evidence [131−1] (RESTRICTED). (maf) (Entered: 08/24/2000)

08/23/2000 134 MINUTE ORDER of 8/23/00 by Hon. Warren K. Urbom : It is ordered that the parties shall have until 09/01/00 to respond to the motion to intervene [119−1], petition for leave to intervene [128−1], and motion for leave to appearance instanter [123−1]. Viad Corp. may reply to any such response on or before 09/08/00. (Entered Briefing Schedule) Notice mailed by Judge's staff (ar) (Entered: 08/29/2000)

08/24/2000 133 UNOPPOSED MOTION by plaintiff EEOC to amend briefing schedule ; Notice. (maf) (Entered: 08/25/2000)

08/24/2000 135 MINUTE ORDER of 8/24/00 by Hon. Warren K. Urbom : The parties shall have until 09/01/00 to respond to the motion to intervene filed by Viad Corp. [119−1], the petition for leave to intervene filed by Jane Doe [128−1] and the motion for leave to appearance [123−1]. Replies may be filed ten days after the service of any such response. EEOC may file and serve a consolidated reply to any pleadings in opposition to EEOC's motion to unseal Jan Doe materials [111−1] within ten days after the court has ruled on Viad's and Doe's motion to intervene. (Entered Revised Briefing Scheuled) Notice mailed by Judge's staff (ar) (Entered: 08/29/2000)

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08/28/2000 140 APPLICATION for leave to appear pro hac vice by Dle A. Danneman for John Roe; Order entered granting leave by Hon. Warren K. Urbom (ar) (Entered: 09/07/2000)

09/01/2000 136 RESPONSE by Dial Corp to motion to intervene filed by Viad Corp [119−1] (ar) Modified on 09/06/2000 (Entered: 09/06/2000)

09/01/2000 137 RESPONSE by Dial Corp to motion to intervene filed by John Roe [125−1] (ar) (Entered: 09/06/2000)

09/01/2000 138 RESPONSE by Dial Corp to motion for leave to intervene file by Jane Doe [128−1] (ar) (Entered: 09/06/2000)

09/01/2000 139 RESPONSE IN OPPOSITION by EEOC to Jane Doe's, John Roe's and Viad Corp.'s motions to intervene [128−1] [125−1] [119−1]; Notice (ar) (Entered: 09/06/2000)

09/05/2000 141 MINUTE ORDER of 9/5/00 by Hon. Warren K. Urbom : It is ordered that, on or before 09/13/00, the parties and Viad Corp. may file and serve responses to John Roe's motion to continue protective order [126−1] and motion for leave to file declaration of John Roe under seal [127−1]. John Roe may reply to such responses on or before 09/20/00. (Entered Briefing Schedule re John Roe's Motion) Notice mailed by Judge's staff (ar) Modified on 09/07/2000 (Entered: 09/07/2000)

09/11/2000 149 REPLY by Viad Corp to plaintiff EEOC's response in opposition to Viad Corp.'s motion to intervene [119−1]; Notice (RESTRICTED) (ar) (Entered: 09/29/2000)

09/12/2000 142 RESPONSE by Viad Corp to John Roe's motion to continue protective orders [126−1] and motion for leave to file declaration under seal [127−1] (RESTRICTED) (ar) (Entered: 09/13/2000)

09/13/2000 143 RESPONSE by petitioner/intervenor Jane Doe to John Roe's motion to continue protective orders [126−1] and motion for leave to file declaration of John Roe under seal [127−1] (RESTRICTED) (ar) (Entered: 09/14/2000)

09/14/2000

SCHEDULE set on 9/14/00 by Hon. Marvin E. Aspen : Status hearing and for filing of the joint pretrial order set for 9/15/00 before Judge Aspen is stricken. Mailed notice (gl) (Entered: 09/14/2000)

09/14/2000 144 RESPONSE by EEOC in opposition to John Roe's intervention [125−1] and motion to file declaration under seal [127−1]; Notice (ar) (Entered: 09/16/2000)

09/14/2000 145 RESPONSE by Dial Corp to John Roe's motions to continue protective order [126−1] and for leave to file declaration under seal [127−1] (ar) (Entered: 09/16/2000)

09/15/2000 146 REPLY by John Roe in support of motion to intervene [125−1] (RESTRICTED) (ar) (Entered: 09/18/2000)

09/15/2000 147 REPLY by Jane Doe in support of petition for leave to intervene [128−1] (Attachments) (RESTRICTED) (ar) (Entered: 09/18/2000)

09/20/2000 148 REPLY by John Roe in support of his motion to continue protective orders [126−1] and motion for leave to file declaration under seal [127−1] (RESTRICTED) (ar) (Entered: 09/21/2000)

09/21/2000 151 MINUTE ORDER of 9/21/00 by Hon. Warren K. Urbom : Viad Corp.'s motion to intervene pursuant to Rule 24 FRCP is granted [119−1]. (Entered Order on Motion to Intervene pursuant to Rule 24 Fed.R.Civ.P.) Notice mailed by Judge's staff (ar) (Entered: 10/04/2000)

09/21/2000 152 MINUTE ORDER of 9/21/00 by Hon. Warren K. Urbom : John Roe's motion to intervene pursuant to Rule 24(b) Fed. R. Civ. P. is granted [125−1]. (Entered Order on Mtoion to Intervene pursuant to Rule 24(b), Fed.R.Civ.P.) Notice mailed by Judge's staff (ar) (Entered: 10/04/2000)

09/21/2000 153 MINUTE ORDER of 9/21/00 by Hon. Warren K. Urbom : Jane Doe's motion for leave to intervene pursuant to Rule 24(b) FRCP is granted [128−1]. (Entered Order on Jane Doe's Petition for Leave to Intervene) Notice mailed by Judge's staff (ar) (Entered: 10/04/2000)

09/28/2000 154 MINUTE ORDER of 9/28/00 by Hon. Warren K. Urbom : It is ordered that the parties shall have until 10/12/00 to respond to the motion for protective order filed by Viad Corp. and the reply may be filed and served or before 10/19/00. (Entered Briefing Schedule) Notice mailed by Judge's staff (ar) (Entered: 10/04/2000)

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10/03/2000 150 RESPONSE by Viad Corp to defendant's motion in limine to exclude testimony of Jane Doe and related evidence [131−1] (RESTRICTED) (ar) (Entered: 10/04/2000)
10/05/2000 158 MOTION by intervenor Jane Doe for extension of time to file response to motion in limine (yap) (Entered: 10/11/2000)
10/06/2000 155 REPLY brief by plaintiff in support of motion to unseal briefs [111−1] (RESTRICTED) (ar) (Entered: 10/10/2000)
10/06/2000 156 RESPONSE in opposition by plaintiff to Dial's motion in limine [131−1]; Notice. (RESTRICTED) (ar) (Entered: 10/10/2000)
10/10/2000 166 MINUTE ORDER of 10/10/00 by Hon. Warren K. Urbom : It is ordered that the plaintiff's motion for leave to file, instanter, an oversized reply brief in support of its motion to unseal briefs, hearing transcript, court order and deposition of Jane Doe, dated 10/05/00, is granted. (Entered Order) Notice mailed by Judge's staff (ar) Modified on 10/20/2000 (Entered: 10/20/2000)
10/13/2000 159 RESPONSE by plaintiff to Jane Doe's proposed filing; Notice (ar) (Entered: 10/16/2000)
10/13/2000 160 MOTION by EEOC to strike Viad's response to Dial's motion in limine (RESTRICTED) (ar) (Entered: 10/17/2000)
10/13/2000 161 RESPONSE by EEOC in opposition to Viad's motion for protective order (RESTRICTED) (ar) (Entered: 10/17/2000)
10/13/2000 162 RESPONSE by Jane Doe to defendant's motion in limine to exclude testimony of Jane Doe and related evidence [131−1]; Memorandum in support (Attachments) (RESTRICTED) (ar) (Entered: 10/17/2000)
10/17/2000 163 MOTION by defendant for extension of time to file its reply brief in support of its motion in limine ; Notice (ar) (Entered: 10/18/2000)
10/18/2000 164 SUPPLEMENTAL RESPONSE by EEOC to strike Jane Doe's response to Dial's motion in limine [131−1] (RESTRICTED) (ar) (Entered: 10/20/2000)
10/18/2000 167 MINUTE ORDER of 10/18/00 by Hon. Warren K. Urbom : Defendant's motion for extension of time [163−1] to file its reply brief in support of its motion in limine is granted. The defendant shall, on or before 10/26/00, file and serve its reply in support of its motion in limine [131−1]. (Entered Order on Defendant's Motion for Extension of TIme to File Its Reply Brief in Support of Its Motion in Limine) Notice mailed by Judge's staff (ar) (Entered: 10/25/2000)
10/19/2000 165 REPLY by Viad Corp to in support of its motion for protection with response (RESTRICTED) (ar) (Entered: 10/20/2000)
10/19/2000 165 RESPONSE by Viad Corp in opposition to EEOC's motion to strike [160−1] with reply (RESTRICTED) (ar) (Entered: 10/20/2000)
10/26/2000 168 REPLY memorandum by Dial Corp in support of its motion in limine to exclude testimony of Jane Doe and related evidence [131−1] (RESTRICTED) (ar) (Entered: 10/27/2000)
10/27/2000 169 REPLY by Jane Doe EEOC's response in opposition [159−1] to Jane Doe's proposed filing and to EEOC's supplemental response [164−1] to strike Jane Doe's response to Dial's motion in limine (RESTRICTED) (ar) (Entered: 10/30/2000)
11/03/2000 170 MOTION by EEOC for extension of time in which to file its response in opposition to Dial's motion for summary judgment ; Notice (ar) (Entered: 11/06/2000)
11/03/2000 171 MINUTE ORDER of 11/3/00 by Hon. Warren K. Urbom : EEOC's motion for extension of time [170−1] in which to file its response in opposition to Dial's motion for summary judgment with certificate of service is granted. The plaintiff shall have on or before 12/05/00 in which to file and serve its response in opposition to Dial's motion for summary judgment [70−1]. (Entered Order on Equal Employment Opportunity Commission's Motion for Extension of Time in which to File Its Response in Opposition to Dial's Motion for Summary Judgment) Notice mailed by Judge's staff (ar) (Entered: 11/08/2000)
11/28/2000 172 MINUTE ORDER of 11/28/00 by Hon. Warren K. Urbom : Enter memorandum and order: Plaintiff's motion to unseal briefs, hearing transcript, court order and deposition of Jane Doe [111−1] is denied. Viad's motion for protective order [121−1] is granted. John Roe's motion

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to continue protective order [126−1] is granted. John Roe's motion for leave to file declaration of John Roe under seal [127−1] is granted. (Entered Memorandum and Order on Plaintiff's Motion to Unseal Briefs, Hearing Transcript, Court Order and Deposition of Jane Doe, Motion by Viad for Protective Order, Motion by John Roe for Protective Order, and Motion by John Roe to File Declaration) Notice mailed by Judge's staff (ar) Modified on 11/29/2000 (Entered: 11/29/2000)
11/28/2000 173 MINUTE ORDER of 11/28/00 by Hon. Warren K. Urbom : Entered memorandum and order: Defendant's motion in limine to exclude testimony of Jane Doe and related evidence [131−1] is granted. (Entered Memorandum and Order on Defendant's Motion in limine to Exclude Testimony of Jane Doe and Related Evidence) Notice mailed by Judge's staff (ar) (Entered: 11/29/2000)
12/05/2000 174 MEMORANDUM by EEOC in opposition to defendant's motion for summary judgment [70−1] (RESTRICTED) (ar) (Entered: 12/06/2000)
12/05/2000 175 RESPONSE by EEOC to defendant's statement of material facts [96−1] (RESTRICTED) (ar) (Entered: 12/06/2000)
12/05/2000 176 EXHIBITS numbered volumes 1 through 17 by EEOC in support of its response [175−1] to defendant's statement of material facts [2 boxes #176−1 and #176−2)(Document Not Scanned.) (RESTRICTED) (ar) (Entered: 12/06/2000)
12/12/2000 177 MOTION by defendant for extension of time to file its summary judgment reply papers (Attachment) (yap) (Entered: 12/15/2000)
12/14/2000 178 MINUTE ORDER of 12/14/00 by Hon. Warren K. Urbom : EEOC's motion for leave to file brief in opposition to Dial's motion for summary judgment in excess of 38 pages instanter, is granted. Defendant's motion for extension of time [177−1] in which to file its summary judgment reply papers is granted. Defendant shall, on or before 02/28/01, file and serve its reply to its motion for summary judgment [70−1]. (Entered Order) Notice mailed by Judge's staff notice (ar) Modified on 12/27/2000 (Entered: 12/27/2000)
12/21/2000 179 MOTION by plaintiff for leave to file its redacted summary judgment papers instanter ; Notice (ar) (Entered: 12/27/2000)
12/21/2000 180 MEMORANDUM by plaintiff in opposition to Defendant Dial's motion for summary judgment [70−1] (ar) (Entered: 12/27/2000)
12/29/2000 181 MINUTE ORDER of 12/29/00 by Hon. Warren K. Urbom : Plaintiff's motion for leave to file its redacted summary judgment papers instanter is granted [179−1]. (Entered Order) Notice mailed by Judge's staff (ar) (Entered: 01/04/2001)
01/19/2001 182 MOTION by plaintiff for leave to file its redacted summary judgment papers instanter ; Notice (ar) (Entered: 01/22/2001)
01/19/2001 183 STATEMENT by plaintiff of additional facts (1 vol.) (ar) (Entered: 01/22/2001)
01/19/2001 184 RESPONSE by plaintiff to defendant's Local Rule 56.1 statement of material facts [96−1] (1 vol.) (ar) (Entered: 01/22/2001)
01/19/2001 185 CORRECTIONS by plaintiff to its response to defendant's Local Rule 56.1 statement of material facts and its statement of additional facts [175−1] [184−1] (ar) (Entered: 01/22/2001)
01/24/2001 186 MINUTE ORDER of 1/24/01 by Hon. Warren K. Urbom : Plaintiff's motion for leave to file its redacted summary judgment papers instanter is granted [182−1]. (Entered Order) Notice mailed by Judge's staff (ar) (Entered: 01/29/2001)
02/06/2001 187 MOTION by plaintiff for leave to fileits redacted summary judgment papers instanter ; Notice (ar) (Entered: 02/15/2001)
02/06/2001 189 APPENDICES filed by plaintiff to its response [184−1] to defendant's Local 56.1 statement of material facts [96−1] and to plaintiff's statement of additional facts [183−1] (17 vols. #189−1 through #189−17) (ar) (Entered: 02/15/2001)
02/15/2001 188 MINUTE ORDER of 2/15/01 by Hon. Warren K. Urbom : The Clerk of the Court is directed to file and docket side−bound documents filed on 02/06/01 by plaintiff [187−1]. No notice (ar) (Entered: 02/15/2001)

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02/27/2001 193 MINUTE ORDER of 2/27/01 by Hon. Warren K. Urbom : Plaintiff's motion for leave to file redacted summary judgment papers instanter is granted. (Entered Order) Notice mailed by Judge's staff (ar) (Entered: 03/06/2001)
02/28/2001 190 REPLY memorandum by defendant of law in support of its motion for summary judgment; Notice (RESTRICTED). (yp) (Entered: 03/01/2001)
02/28/2001 191 UNREDACTED RESPONSE by defendant to plaintiff's statement of additional facts [183−1] (RESTRICTED). (ac) Modified on 03/01/2001 (Entered: 03/01/2001)
02/28/2001 192 UNREDACTED REPLY by defendant to the additional facts alleged in plaintiff's response to defendant's Local Rule 56.1 Statement [184−1], [185−1] (RESTRICTED). (ac) Modified on 03/01/2001 (Entered: 03/01/2001)
03/09/2001 194 JOINT MOTION by plaintiff and deffendant for substitution of corrected redacted filings . (yp) (Entered: 03/15/2001)
03/12/2001 196 MINUTE ORDER of 3/12/01 by Hon. Warren K. Urbom : The Clerk of the Court is directed to remove immediately from the public (Clerk's) file and destroy, defendant's statement of undisputed material facts in support of summary judgment [98−1]; plaintiff EEOC's response to defendant's statement of undisputed facts [175−1]; and plaintiff EEOC's statement of additional facts in opposition to summary judgment [183−1] and contemporaneously to replace those pleadings with substitute versions of same which the parties have revised and have marked "corrected redacted filing (Substitute)." (Entered Order on Joint Motion for Substitution of Corrected Redacted Filings.) Mailed notice by judge's staff (mw) (Entered: 03/23/2001)
03/19/2001 195 RESPONSE by plaintiff to Dial's motion to strike portions of EEOC's evidence pursuant to Federal Rule of Civil Procedure 56; Notice. (fce) (Entered: 03/20/2001)
03/21/2001 197 RESPONSE by plaintiff to defendant's Local Rule 56.1 statement of material facts [96−1]. (mw) (Entered: 03/23/2001)
03/21/2001 198 STATEMENT by plaintiff of additional facts; Notice. (mw) (Entered: 03/23/2001)
03/29/2001 199 REPLY by defendant Dial Corp to EEOC's response to Dial's motion to strike portions of EEOC's evidence [195−1]. (vmj) (Entered: 04/02/2001)
03/29/2001 200 REDACTED REPLY memorandum of law in support of its motion for summary judgment [70−1] by defendant The Dial Corporation (Attachments). (vmj) (Entered: 04/02/2001)
03/29/2001 201 REDACTED REPLY by defendant Dial Corp to the additional facts alleged in plaintiff's response to defendant's Local Rule 56.1 statement of material facts as to which there is no genuine issue [197−1] (2 vols: 201−1, 201−2). (vmj) (Entered: 04/02/2001)
03/29/2001 202 RESPONSE by defendant Dial Corp to plaintiff's statement of of additional facts [198−1]. (vmj) (Entered: 04/02/2001)
03/29/2001 203 NOTICE of filing by defendant Dial Corp of response [202−1], reply [201−1], reply [200−1], reply [199−1]. (vmj) (Entered: 04/02/2001)
05/03/2001 211 MINUTE ORDER of 5/3/01 by Hon. Warren K. Urbom : The order of 03/12/01 [196−1] is vacated. The Clerk of the Court is directed to remove immediately from the public (Clerk's) file, to destroy the documents that appear on the docket sheet as documents [96−1], [183−1], and [184−1] and to replace those documents with substitute versions of the same which the parties have revised in accordance with the governing protective orders and have marked "Corrected Redacted Filing (Substitute)," which substitute documents have previously been tendered to the Clerk. (Entered Revised Order on Joint Motion for Substitution of Corrected Redacted Filings) Notice mailed by Judge's staff (ar) Modified on 09/19/2001 (Entered: 09/19/2001)
08/09/2001 204 MINUTE ORDER of 8/9/01 by Hon. Warren K. Urbom : Enter memorandum and order: Defendant's motion for summary judgment is granted [70−1] in part and denied in part. (Entered memorandum and order on defendant's motion for summary judgment.) Mailed notice by judge's staff. (yp) (Entered: 08/14/2001)
08/29/2001 205 REDACTED SUPPLEMENTAL by plaintiff filing pursuant to the 8/9/01 court order [204−1]. (yp) (Entered: 09/04/2001)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 17 of 31
09/05/2001 206 MOTION by defendant for an order holding EEOC of contempt for violating the court's confidentiality orders ; Memorandum in support. (RESTRICTED) (yp) Modified on 10/03/2001 (Entered: 09/07/2001)
09/05/2001 207 MEMORANDUM by defendant in support of its motion for an order holding EEOC om contempt for violating the court's confidentiality orders [206−1] (Attachments); Notice. (yp) (Entered: 09/13/2001)
09/06/2001 208 MINUTE ORDER of 9/6/01 by Hon. Warren K. Urbom : The plaintiff shall have until 9/20/01 to respond to the defendant's motion for an order holding EEOC om contempt for violating the court's confidentiality orders [206−1], filed 9/5/01; and the defendant shall have until 10/2/01 to reply. (Entered Briefing Schedule.) Mailed notices by judge's staff. (las) (Entered: 09/17/2001)
09/13/2001 209 MOTION by defendant for certification of issues for appeal ; Memorandum in support. (tlm) (Entered: 09/18/2001)
09/14/2001 210 MINUTE ORDER of 9/14/01 by Hon. Warren K. Urbom : Plaintiff shall have until 09/27/01 to respond to the defendant's motion for certification of issues for appeal [209−1], with a certificate of service dated 09/13/01; and the defendant shall have until 10/04/01 to reply. (Entered Briefing Schedule.) Mailed notice by judge's staff (mw) (Entered: 09/19/2001)
09/20/2001 212 RESPONSE by plaintiff to defendant Dial's motion for contempt [206−1] (Attachments). (yp) (Entered: 09/24/2001)
09/27/2001 213 RESPONSE by plaintiff to Dial's motion for certification [209−1] (Attachment). (yp) (Entered: 09/28/2001)
10/02/2001 214 REPLY MEMORANDUM by defendant in support of its motion for civil contempt sanctions [206−1] (Attachments). (yp) (Entered: 10/03/2001)
10/04/2001 215 REPLY MEMORANDUM by defendant in support of its motion for certification of issues for appeal [209−1]. (yp) (Entered: 10/05/2001)
11/29/2001 216 MINUTE ORDER of 11/29/01 by Hon. Warren K. Urbom : It is ordered that EEOC is adjudged to be in civil contempt for failure to comply with the stipulated protective order. Dial is awarded its costs and attorney's fees incurred in preparing and prosecuting the contempt motion; and Dial will have until 12/12/01 to file its application for costs and attorney's fees and documentation; the EEOC will then have until 12/27/01 to respond. (Entered Memorandum and Order on Defendant's Motion for Contempt Order.) Mailed notice by judge's staff. (yp) Modified on 12/12/2001 (Entered: 12/06/2001)
12/11/2001 217 REQUEST by plaintiff EEOC for extension of time to comply with 11/29/01 order. (yp) (Entered: 12/12/2001)
12/12/2001 218 PETITION by defendant Dial Corp for attorneys' fees and costs incurred to prepare and prosecute its motion for an order holding EEOC in contempt (Attachments). (yp) (Entered: 12/13/2001)
12/12/2001 219 MINUTE ORDER of 12/12/01 by Hon. Warren K. Urbom : EEOC's request for extension of time to comply with 11/29/01 order is granted and the plaintiff's deadline for compliance with the court's 11/29/01 order is extended to 1/2/02, (Attachment). Mailed notices by judge's staff (cem) (Entered: 12/20/2001)
12/20/2001 220 MINUTE ORDER of 12/20/01 by Hon. Warren K. Urbom : Defendant's motion for certification of issues for appeal is granted [209−1], because the issue "Whether the time limitations which apply to privately prosecuted class−based Title VII claims apply to an EEOC prosecuted pattern and practive Title ViI claim" meets the requirements of 28 USC 1292 and this court's order of 8/9/01 (filing 204−1) is therefore certified to the Seventh Circuit of Appeals for interlocutory review. (Entered Memorandum and Order on Defendant's Motion for Certification of Issues for Appeal.) Mailed notice by judge's staff. (yp) (Entered: 12/27/2001)
12/26/2001 223 MOTION by intervenor Jane Doe to remove from mailing list . (yp) (Entered: 01/03/2002)
12/26/2001 224 MINUTE ORDER of 12/26/01 by Hon. Warren K. Urbom : It is ordered that Jane's motion to remove from mailing list is granted [223−1] and their names removed from any future pleadings or minute entries. terminating party Jane Doe (Entered Order.) Mailed notice by

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judge's staff. (yp) Modified on 01/03/2002 (Entered: 01/03/2002)
12/27/2001 221 RESPONSE by plaintiff to Dial's petition for attorney's fees and costs [218−1]. (yp) (Entered: 12/28/2001)
12/28/2001 222 RESPONSE by plaintiff to the Court's 11/29/01 contempt order [216−1] (Attachments). (mw) (Entered: 01/02/2002)
01/18/2002 226 MINUTE ORDER of 1/18/02 by Hon. Warren K. Urbom : Enter second memorandum and order: It is ordered that when the plaintiff has fully complied with my memorandum and order on defendant's petition for attorneys' fees and costs incurred to prepare and prosecute its motion for an order holding EEOC in contempt, the memorandum and order on defendant's motion for contempt order, dated 11/29/01, will have been fully complied with and the subject of that order concluded. (Entered Second Memorandum and Order on Defendant's Motion for Contempt Order.) Mailed notice by judge's staff. (yp) Modified on 01/25/2002 (Entered: 01/25/2002)
01/18/2002 225 MINUTE ORDER of 1/18/02 by Hon. Warren K. Urbom : Enter memorandum and order: Defendant's petition for attorneys' fees and costs incurred to prepare and prosecute its motion for an order holding EEOC in contempt, is granted to the extent that the Dial Corporation shall have from EEOC an attorney's fee and costs in the amount of $7,151.75, together with interest until paid in full. (Entered Memorandum and Order on Defendant's Petition for Attorneys' Fees and Costs Incurred to Prepare and Prosecute its Motion for an Order Holding EEOC in Contempt. Mailed notice by judge's staff. (yp) Modified on 01/25/2002 (Entered: 01/25/2002)
02/15/2002 227 CERTIFIED copy of Order dated 2/12/02 from the 7th Circuit: The Dial Corporation's petition for permission to appeal under 28 U.S.C. 1292(b), filed on 1/7/02 by counsel. Opposition of the Equal Opportunity Commission to petition for permission to appeal under U.S.C. 1292(b), filed on 1/25/02 by counsel. It is ordered that #1 is denied. (02−8002) (yp) (Entered: 02/21/2002)
03/27/2002 228 MINUTE ORDER of 3/27/02 by Hon. Warren K. Urbom : Defendant's motion for an order holding EEOC of contempt for violating the court's confidentiality orders is granted [206−1]. No notice (yp) (Entered: 03/28/2002)
03/27/2002 229 MINUTE ORDER of 3/27/02 by Hon. Warren K. Urbom : Defendant's motion for substitution of corrected redacted filings is granted [194−1] pursuant to this court's order of 3/12/01. No notice (yp) (Entered: 03/28/2002)
04/26/2002 230 MINUTE ORDER of 4/26/02 by Hon. Warren K. Urbom : Telephone conference held. Defendant shall have until 6/13/02 to file motions in limine, to which the plaintiff may respond by 7/9/02, and a reply may be filed by 7/19/02. Mailed notice by judge's staff. (yp) (Entered: 05/02/2002)
06/13/2002 231 MOTION by defendant for leave to file its memorandum in support of its motion in limine to exclude evidence of alleged harassment before 1994 or, alternatively, before 1991, in excss of fifteen pages, instanter . (srb) (Entered: 06/14/2002)
06/13/2002 232 MOTION by defendant in limine to exclude evidence of sex−based harassment, retaliation, or other forms of discrimination ; Notice. (yp) (Entered: 06/25/2002)
06/13/2002 233 MOTION by defendant Dial Corp in limine to exclude evidence relating to the allegations of Class Member 80 (RESTRICTED). (yp) (Entered: 06/25/2002)
06/13/2002 234 MOTION by defendant Dial Corp for reconsideration of the court's "Scope of the Charge" and timeliness rulings and its memorandum in support thereof (RESTRICTED). (yp) (Entered: 06/25/2002)
06/13/2002 235 MOTION by defendant Dial Corp in limine to exclude plaintiff's expert's testimony and its memorandum in support thereof (RESTRICTED). (yp) (Entered: 06/25/2002)
06/13/2002 236 MOTION by defendant Dial Corp in limine to exclude evidence of alleged harassment before 1994 or, alternatively, before 1991 and its memorandum in support thereof (RESTRICTED). (yp) (Entered: 06/25/2002)
06/20/2002 244 MINUTE ORDER of 6/20/02 by Hon. Warren K. Urbom : Defendant's motion for leave to file its memorandum in support of its motion limine to exclude evidence of alleged harassment before is granted [231−1], in excss of pages, instanter is granted [231−2].

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(Entered Order on Defendant's Motion for Leave to File its Memorandum in Support of its Motion in Limine to Exclude Evidence of Alleged Harassment Before 1994 or, Alternatively, Before 1991, in Excess of Fifteen Pages, Instanter.) Mailed notice by judge's staff. (yp) Modified on 06/28/2002 (Entered: 06/28/2002)
06/26/2002 237 REDACTED MOTION by defendant Dial Corp in limine to exclude evidence relating to the allegations of class member 80 ; Notice. (yp) (Entered: 06/27/2002)
06/26/2002 238 MOTION by defendant Dial Corp in limine to exclude plaintiff's expert's testimony ; Notice. (yp) (Entered: 06/27/2002)
06/26/2002 239 MOTION by defendant Dial Corp for reconsideration of the court's notice and timeliness rulings ; Notice. (yp) (Entered: 06/27/2002)
06/26/2002 240 MOTION by defendant Dial Corp in limine to exclude evidence of alleged harassment before 1994 or, alternatively before 1991 ; Notice. (yp) (Entered: 06/27/2002)
06/26/2002 241 REDACTED MEMORANDUM OF LAW by defendant Dial Corp in support of its motion in limine to exclude evidence of alleged harassment before or, alternatively before 1991 [240−1] (Attachments). (yp) Modified on 06/27/2002 (Entered: 06/27/2002)
06/26/2002 242 REDACTED MEMORANDUM OF LAW by defendant Dial Corp in support of its motion for reconsideration of the court's notice and timeliness rulings [239−1] (Attachments). (yp) Modified on 06/27/2002 (Entered: 06/27/2002)
06/26/2002 243 REDACTED MEMORANDUM of law by defendant Dial Corp in support of its motion in limine to exclude plaintiff's expert's testimony [238−1] (Attachments). (yp) (Entered: 06/27/2002)
06/26/2002 254 ORIGINAL declaration of Phyllis Fletcher by defendant (RESTRICTED) (ar) (Entered: 07/10/2002)
06/26/2002 255 ORIGINAL declaration of William Jensen by defendant (RESTRICTED) (ar) (Entered: 07/10/2002)
06/26/2002 256 ORIGINAL declaration of Bernhard J. Welle by defendant (RESTRICTED) (ar) (Entered: 07/10/2002)
06/27/2002 245 CORRECTED TAB C by defendant Dial Corp to its memorandum in support of its motion in limine to exclude plaintiff's expert's testimony (RESTRICTED). (yp) (Entered: 07/01/2002)
06/28/2002 247 MINUTE ORDER of 6/28/02 by Hon. Warren K. Urbom : It is ordered that the Memorandum and Order on defendant's petition for attorneys' fees and costs incurred to prepare and prosecute its motion for an order holding EEOC in contempt, the interest rate for the amount of attorneys' fees and costs as of 01/18/02 is 2.03 per cent per annum. (Entered Order Amending Memorandum and Order on Defendant's Petition for Attorney's Fees and Costs Incurred to Prepare and Prosecute Its Motion for an Order Holding EEOC in Contemt). Notice mailed by Judge's staff (ar) (Entered: 07/03/2002)
07/01/2002 246 NOTICE of filing by plaintiff regarding its motion for extension of time to file its response to defendant's motion in limine to exclude plaintiff's expert testimony (ar) (Entered: 07/03/2002)
07/01/2002 248 MOTION by plaintiff for extension of time to file its response to defendant's motion in limine to exclude plaintiff's expert testimony . (fce) (Entered: 07/03/2002)
07/01/2002 250 MINUTE ORDER of 7/1/02 by Hon. Warren K. Urbom : The plaintiff shall on or before 07/08/02, file and serve its response to defendant's motion for reconsideration; and the defendant may on or before 07/12/02, file and serve its reply to the defendant's motion for reconsideration. [239−1] (Entered Briefing Schedule) Mailed notice (hp) (Entered: 07/09/2002)
07/01/2002 251 MINUTE ORDER of 7/1/02 by Hon. Warren K. Urbom : It is ordered that the plaintiff's motion for extension of time to file its response to defendant's motion in limine to exclude plaintiff's expert testimony, with a notice of filing dated 07/01/02, is granted and the plaintiff shall have until 07/30/02 to file and serve its response. [248−1] (Entered Order) Mailed notice (hp) (Entered: 07/09/2002)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 20 of 31
07/02/2002 249 NOTICE by David T. Maddox, counsel for Viad Corp of change of address. (fce) (Entered: 07/03/2002)
07/08/2002 252 MOTION by defendant for attorney fees, costs, and expenses incurred in defending against frivolous class member claims (hp) (Entered: 07/09/2002)
07/08/2002 257 MEMORANDUM of law by Dial Corp in support of its motion for attorney fees, costs, and expenses incurred in defending against frivolous class member claims [252−1]; Notice (RESTRICTED) (ar) (Entered: 07/10/2002)
07/08/2002 264 MEMORANDUM by plaintiff in opposition to Defendant Dial's motion for reconsideration [239−1]; Notice. (tlm) (Entered: 07/17/2002)
07/09/2002 259 RESPONSE by EEOC to defendant's motion in limine to exclude evidence of sex−based harassment, retaliation, or other forms of discrimination [232−1] (fce) (Entered: 07/11/2002)
07/09/2002 260 RESPONSE by EEOC to defendant's motion in limine to exclude evidence of alleged harassment before 1994 or, alternatively before 1991 [240−1] (Attachments). (fce) (Entered: 07/11/2002)
07/09/2002 261 RESPONSE by plaintiff to defendant's motion in limine to exclude evidence relating to the allegations of class member 80 [237−1] (Attachment); Notice. (fce) (Entered: 07/11/2002)
07/09/2002 263 MINUTE ORDER of 7/9/02 by Hon. Warren K. Urbom : It is ordered that plaintiff shall have until 07/23/02 to respond to the defendant's motion for attorney fees, costs, and expenses incurred in defending against frivolous class member claims [252−1]; and the defendant may have until 07/30/02 to reply. (Entered Briefing Schedule on Defendant's Motion for Attorneys' Fees, Costs, and Expenses Incurred In Defending Against Frivolous Class Member Claims.) Mailed notice by judge's staff (lc) (Entered: 07/17/2002)
07/10/2002 253 NOTICE of filing by defendant of motion for attorney fees, costs, and expenses incurred in defending against frivolous class member claims [252−1]. (vmj) (Entered: 07/10/2002)
07/10/2002 258 Redacted MEMORANDUM of law by defendant in support of its motion for attorney fees, costs, and expenses incurred in defending against frivolous class member claims [252−1] (Attachments). (fce) (Entered: 07/11/2002)
07/12/2002 262 REPLY memorandum by defendant in support of its motion for reconsideration of the court's "Scope of the Charge" and timeliness rulings [239−1] (gcy) (Entered: 07/15/2002)
07/19/2002 265 REPLY MEMORANDUM IN SUPPORT by defendant of its motion in limine to exclude evidence relating to the allegations of class member 80 [237−1], [233−1]. (yp) (Entered: 07/22/2002)
07/19/2002 266 REPLY MEMORANDUM IN SUPPORT by defendant of its motion in limine to exclude evidence of alleged harassment before 1994 or, alternatively before 1991 [240−1]. (yp) (Entered: 07/22/2002)
07/19/2002 267 REPLY MEMORANDUM IN SUPPORT by defendant of its motion in limine to exclude evidence of sex−based harassment, retaliation, or other forms of discrimination [232−1]. (yp) (Entered: 07/22/2002)
07/19/2002 268 MOTION by defendant for leave to file third amended answer (Attachment). (yp) (Entered: 07/22/2002)
07/19/2002 269 REQUEST by plaintiff for extension of time to respond to defendant's motion for attorneys' fees, costs, and expenses incurred in defending against privolous class member claims; Notice. (yp) (Entered: 07/22/2002)
07/19/2002 270 MINUTE ORDER of 7/19/02 by Hon. Marvin E. Aspen : Enter memorandum and order: defendant's motion for reconsideration of the court's notice and timeliness rulings is denied [239−1]. (Entered Memorandum and Order on Defendant's Motion for Reconsideration of the court's Notice and Timeliness Rulings.) Mailed notice by judge's staff. (yp) (Entered: 07/23/2002)
07/19/2002 271 MINUTE ORDER of 7/19/02 by Hon. Marvin E. Aspen : EEOC's request for extension of time to respond to defendant's motion for attorney fees, costs, and expenses incurred in defendant against frivolous class member claims, is granted; the plaintiff shall on or before 8/23/02 file and serve its reponse and the defendant may on or before 8/20/02, file and serve

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 21 of 31
a copy [252−1]. (Entered Order on Equal Employment Opportunity Commission's Request for Extension of Time to Respond to Defendant's Motion for Attorneys' Fees, Costs, and Expenses incurred in Defending against Frivolous Class Member Claims.) Mailed notice by judge's staff. (yp) (Entered: 07/23/2002)
07/23/2002 272 MINUTE ORDER of 7/23/02 by Hon. Warren K. Urbom : It is ordered that the plaintiff shall have until 07/31/02 to respond to the defendant's motion for leave to file third amended answer [268−1] and the defendant shall have until 08/07/02 to reply. (Entered Order). Mailed notice by judge's staff. (jmp) Modified on 07/30/2002 (Entered: 07/30/2002)
07/30/2002 277 RESPONSE by plaintiff to defendant's motion in limine to exclude plaintiff's expert's testimony [238−1] (RESTRICTED). (yp) (Entered: 08/08/2002)
07/31/2002 273 OBJECTIONS by plaintiff EEOC to defendant Dial's motion for leave to file third amended answer [268−1]; Notice. (gcy) (Entered: 08/01/2002)
08/06/2002 274 SUPPLEMENTAL RESPONSE by plaintiff to defendnt's motion in limine to exclude plaintiff's expert's testimony [238−1] (RESTRICTED). (yp) (Entered: 08/07/2002)
08/06/2002 275 MOTION by defendant for extension of time to file its reply memorandum in support of its motion in limine to exclude plaintiff's expert's testimony . (yp) (Entered: 08/07/2002)
08/06/2002 276 REPLY MEMORANDUM by defendant in support of its motion for leave to file third amended answer [268−1]. (yp) (Entered: 08/07/2002)
08/09/2002 278 MINUTE ORDER of 8/9/02 by Hon. Marvin E. Aspen : Defendant's motion for extension of time to file its reply memorandum in support of its motion in limine to exclude plaintiff's expert's testimony is granted [275−1]. Defendant may on or before 8/13/02 file its reply memo. (Entered Order on Defendant's Motion for an Extension of Tiem to file its Reply Memorandum in Support of its Motion in Limine to Exclude Plaintiff's Expert's Testimony.) Mailed notice by judge's staff. (yp) Modified on 08/14/2002 (Entered: 08/14/2002)
08/13/2002 279 REPLY MEMORANDUM OF LAW by defendant Dial Corp in support of its motion in limine to exclude plaintiff's expert's testimony [238−1]. (yp) (Entered: 08/14/2002)
08/22/2002 280 MOTION by plaintiff for leave to file instanter its sur−reply in response to defendant's reply memorandum of law in support of its motion in limine to exclude plaintiff's expert testimony (Attachments); Notice. (yp) (Entered: 08/23/2002)
08/22/2002 282 MINUTE ORDER of 8/22/02 by Hon. Warren K. Urbom : Plaintiff's motion for leave to file instanter its sur−reply in response to defendant's reply memorandum of law in support of its in limine to exclude plaintiff's expert testimony is granted [280−1]. (Entered Order on Plaintiff's Motion for Leave to File Instanter its Sur−Reply in Response to Defendant's Reply Memorandum of Law In Support of its Motion in Limine to Exclude Plaintiff's Expert Testimony.) Mailed notice by judge's staff. (yp) (Entered: 08/28/2002)
08/23/2002 281 RESPONSE by plaintiff to defendant's motion for attorney fees, costs, and expenses incurred in defending against frivolous class member claims [252−1]; Notice. (yp) (Entered: 08/26/2002)
08/30/2002 283 REPLY MEMORANDUM by defendant Dial Corp in support of its motion for attorney fees, costs, and expenses incurred in defending against frivolous class member claims [252−1]. (yp) (Entered: 09/03/2002)
08/30/2002 284 MINUTE ORDER of 8/30/02 by Hon. Warren K. Urbom : It is ordered that a status conference shall commence at 12:15 p.m., on Wednesday, 10/9/02, in room no. 1764. (Entered Order Setting Status Conference.) Mailed notice by judge's staff. (yp) (Entered: 09/05/2002)
09/17/2002 285 MINUTE ORDER of 9/17/02 by Hon. Warren K. Urbom : (Entered Memorandum and Order: Defendant's Motion in Limine to Exclude Evidence of Sex−Based Harassment, Retaliation, or Other Forms of Discrimination is denied [232−1].) Mailed notice by judge's staff. (yp) Modified on 09/30/2002 (Entered: 09/30/2002)
09/17/2002 286 MINUTE ORDER of 9/17/02 by Hon. Warren K. Urbom : (Entered Memorandum and Order: Defendant's Motion in Limine to Exclude Evidence Relating to the Allegations of Class Member 80 [233−1] and [237−1] is denied.) Mailed notice by judge's staff. (yp) (Entered: 09/30/2002)

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09/17/2002 287 MINUTE ORDER of 9/17/02 by Hon. Warren K. Urbom : (Entered Memorandum and Order: Defendant's Motion in Limine to Exclude Evidence of Alleged Harassment Before or, Alternatively, Before 1991 [236−1] &[240−1] is denied.) Mailed notice by judge's staff. (yp) (Entered: 09/30/2002)
09/17/2002 288 MINUTE ORDER of 9/17/02 by Hon. Warren K. Urbom : (Entered Memorandum and Order: Defendant's Motion in Limine to Exlude Plaintiff's Expert Testimony and its Memorandum in Support Thereof is granted in part and denied in part [235−1], [238−1].) Mailed notice by judge's staff. (yp) (Entered: 09/30/2002)
09/18/2002 289 MINUTE ORDER of 9/18/02 by Hon. Warren K. Urbom : (Entered Meomorandum and Order: Defendant's Motion for Attorney Fees, Costs, and Expenses Incurred in Against Frivolous Class Member Claims [252−1] is granted in part and denied in part.) Mailed notice by judge's staff. (yp) Modified on 09/30/2002 (Entered: 09/30/2002)
10/01/2002 291 MINUTE ORDER of 10/1/02 by Hon. Warren K. Urbom : Enter memorandum and order: It is ordered that the motion (Doc 268−1) for leave to file third amended answer is granted; the Third Amended Answer to Complaint, a copy of which was attached to the motion for leave to file Third Amended Answer, shall be filed immediately. (Entered Memorandum and Order) Mailed notice by judge's staff. (yp) (Entered: 10/07/2002)
10/02/2002 292 PETITION by defendant Dial Corp for attorney fees , and for costs incurred as a direct result of EEOC's Inaccurate responses to defendant's interrogatories relating to the claims of class members 9, 20, 37, 52, 63, 70, 84, and 99 ; Notice (RESTRICTED). (yp) (Entered: 10/07/2002)
10/03/2002 290 PETITION by defendant Dial Corp for attorney fees and costs incurred as a direct result of EEOC's inaccurate responses to defendant's interrogatories relating to the claims of class members 9, 20, 37, 52, 63, 70, 84, and 99 (Attachments). (yp) (Entered: 10/04/2002)
10/07/2002 293 THIRD AMENDED ANSWER to complaint [8−1], [5−1] by defendant; Notice. (yp) (Entered: 10/08/2002)
10/09/2002 295 MINUTE ORDER of 10/9/02 by Hon. Warren K. Urbom : Pretrial conference held and continued to 2/28/03 at 1:00 p.m. Trial set for 4/28/03 at 9:00 a.m. Enter memorandum and order on pretrial conference: Plaintiff may file by 10/15/02 a motion for reconsideration of the ruling on the attorney's fees. Dial shall have 10 days to respond, and the pliantiff 5 days to reply. By 1/13/03, counsel shall sumit their proposed questions to be included on a questionnaire to prospective jurors prior to their reporting for possible service. Final pretrial order shall be submitted by 2/21/03. (Entered Memorandum and Order on Pretrial Conference.) Mailed notice by judge's staff. (yp) (Entered: 10/18/2002)
10/15/2002 294 MOTION by plaintiff for reconsideration of its 9/18/02 ruling (Attachments); (hmb) (Entered: 10/17/2002)
10/29/2002 296 RESPONSE by defendant Dial Corp to EEOC's motion for reconsideration of the court's order granting Dial's motion for attorneys' fees [294−1]. (yp) (Entered: 10/30/2002)
11/05/2002 297 REPLY by plaintiff in support of its motion for reconsideration [294−1]; Notice. (cem) (Entered: 11/06/2002)
12/09/2002 298 MOTION by defendant for clarification of the court's order of a bifurcated trial ; Memorandum in support (Attachment). (lc) (Entered: 12/11/2002)
12/10/2002 299 MINUTE ORDER of 12/10/02 by Hon. Warren K. Urbom: Plaintiff shall on or before 12/24/02, file and serve its response to defendant's motion for clarification of the court's order of a bifurcated trial [298−1]. The defendant may on or before 1/2/03, file and serve its reply to its motion for clarification. (Entered Briefing Schedule.) Notice mailed by judge's staff (air) Modified on 12/16/2002 (Entered: 12/16/2002)
12/13/2002 300 SUPPLEMENTAL MOTION by defendant in limine to exclude plaintiff's expert's testimony concerning matters raised in section II of her report (Attachments); Memorandum in support. (air) (Entered: 12/16/2002)
12/16/2002 301 MINUTE ORDER of 12/16/02 by Hon. Warren K. Urbom : It is ordered that the plaintiff shall respond to defendnat's supplemental motion in limine to exclude plaintiff's expert's testimony concerning matters raised in section II of her report [300−1] on or before 12/30/02. The defendant may file and serve its reply on its suplemental motion in limine on or before 1/13/03. (Entered Order). Notices mailed by Judge's staff (hmb) (Entered:

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12/19/2002)
12/20/2002 302 JOINT MOTION by plaintiff, defendant to stay current briefing schedule . (ntf) (Entered: 12/23/2002)
12/20/2002 303 MINUTE ORDER of 12/20/02 by Hon. Warren K. Urbom : Joint motion to stay current briefing schedule, dated 12/20/02 is granted [302−1]; briefing schedules entered on 12/10/02 and 12/16/02 are stayed until furter order of the court. (Entered Order). Notice mailed by judge's staff (ntf) (Entered: 12/24/2002)
12/20/2002 304 MINUTE ORDER of 12/20/02 by Hon. Warren K. Urbom : The motion for reconsideration of its 9/18/02 ruling [294−1], dated 10/15/02 is granted. The order contained within the Memorandum and Order on Defendant's motion for attorney fees and expenses incurred in defending against frivolous class member claims, dated 09/18/02, is vacated. The defendant's motion [290−1], [292−1], [292−2] for attorneys' fees, costs and expenses incurred in defendant against frivolous class Member Claims, filing 52, is denied. (Entered Memorandum and Order on Motion for Reconsideration of 09/18/02, Ruling on Dial's Motion for Attorneys' Fees). Notice mailed by judge's staff (ntf) (Entered: 12/24/2002)
01/07/2003 305 MOTION by plaintiff EEOC, and defendant Dial Corp to stay the 01/13/03 deadline for providing the court with proposed questions to be included on a prospective jury questionnaire ; Notice (ntf) (Entered: 01/09/2003)
01/21/2003 306 MINUTE ORDER of 1/21/03 by Hon. Warren K. Urbom: (Entered Order Extending Dates Regarding Defendant's Motion For Clarification of The Court's Order of Bifurcated Trial, The Defendant's Supplemental Motion In Limine To Exlude Plaintiff's Expert's Testimony Concerning Matters Raised In Section II of Her Report and Proposed Questions To Be Included On A Questionnaire To Prospective Jurors Prior To Their Reporting For Possible Service.) Notice mailed by judge's staff (air) (Entered: 01/27/2003)
01/21/2003 308 MINUTE ORDER of 1/21/03 by Hon. Warren K. Urbom: The parties' joint motion to stay the 01/13/03 deadline for providing the court with proposed questions to be included on a prospective jury questionnaire [305−1] with a notice of filing dated 1/7/03 is granted. The 1/13/03 deadline is stayed until further order of the court. (Entered Order On The Parties' Joint Motion To Stay the 1/13/03, Deadline For Providing The Court With Proposed Questions To Be Included On A Prospective Jury Questionnaire.) Notice mailed by judge's staff (air) (Entered: 01/27/2003)
01/24/2003 307 BRIEF by plaintiff in support of punitive damages award and instruction in phase I of the trial; Notice. (air) (Entered: 01/27/2003)
01/30/2003 309 UNOPPOSED MOTION by Dial Corp for an extension of time to file its reply memorandum in support of its motion for clairification of the Court's order of a bifurcated trial (ar) (Entered: 02/03/2003)
01/31/2003 310 RESPONSE by plaintiff to defendant's supplemental motion in limine to exclude plaintiff's expert's testimony [300−1] (Attachments); Notice. (gcy) (Entered: 02/03/2003)
02/03/2003 311 REPLY memorandum by defendant in support of its motion for clarification of the court's order of a bifurcated trial [298−1]. (vmj) (Entered: 02/04/2003)
02/12/2003 312 REPLY MEMORANDUM by defendant in support of its supplemental motion in limine to exclude plaintiff's expert's testimony concerning section II of her report [300−1]; Notice. (air) (Entered: 02/14/2003)
02/14/2003 313 MINUTE ORDER of 2/14/03 by Hon. Warren K. Urbom : (Entered Memorandum and Order on defendant's motion for clarification on the Court's order of a bifurcated trial) [298−1]. Notice mailed by Judge's staff (ar) (Entered: 02/20/2003)
02/18/2003 314 MINUTE ORDER of 2/18/03 by Hon. Warren K. Urbom: Enter order that Viad Corp. and its counsel be removed from any future minute entries or pleadings in this matter. (Entered Order.) Notices mailed by judge's staff (cdy) (Entered: 02/26/2003)
02/18/2003 315 MINUTE ORDER of 2/18/03 by Hon. Warren K. Urbom: Defendant's motion for an extension of time to file its reply memorandum in support of its motion for clairification of the Court's order of a bifurcated trial, with certificate of service dated 01/30/03, is granted. The defendant shall have until 02/03/03 to file its reply memorandum in support of its motion for clarification of the order of a bifurcated trial. (Entered Order on Defendant's

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 24 of 31
Unopposed Motion for an Extension of Time to File its Reply Memorandum in Support of its Motion for Clarification of the Court's Order of a Bifurcated Trial.) Notices mailed by judge's staff (cdy) Modified on 02/26/2003 (Entered: 02/26/2003)
02/26/2003 316 JOINT MOTION by plaintiff and defendant to modify pretrial order schedule ; Notice. (jmp) (Entered: 03/03/2003)
02/26/2003 317 MOTION by defendant to withdraw Kimball R. Anderson and T. Alexis MacDowall . (ntf) (Entered: 03/03/2003)
02/26/2003 318 ATTORNEY APPEARANCE for defendant by Camille Annette Olson (ntf) (Entered: 03/03/2003)
02/27/2003 320 MINUTE ORDER of 2/27/03 by Hon. Warren K. Urbom: Joint motion [316−1] to modify pretrial order scheduled is granted. The Joint Pretrial Conference of 04/04/03 shall commence at 9:30 a.m. in Room 1764 of the Everett Dirksen Building, 219 S. Dearborn St., Chicago, Illinois. (Entered Order on Joint Motion to Modify Pretrial Order Schedule.) Mailed notice by judge's staff (gcy) (Entered: 03/04/2003)
02/28/2003 319 FINAL PRE−TRIAL ORDER; Notice. (gcy) (Entered: 03/04/2003)
02/28/2003 321 MINUTE ORDER of 2/28/03 by Hon. Warren K. Urbom: It is ordered that the order on joint motion to modify pretrial order schedule is amended in that date set for the joint pretrial conference has been changed and the Joint Pretrial Conference shall commence on 04/03/03 at 12:30 p.m.; otherwise, the order on joint motion to modify pretrial order schedule shall remain the same. (Entered Amended Order on Joint Motion to Modify Pretrial Order Schedule). Mailed notice by judge's staff (gcy) (Entered: 03/04/2003)
03/03/2003 332 MINUTE ORDER of 3/3/03 by Hon. Warren K. Urbom : motion to The motion for leave to withdraw, filed on 2/26/03 is granted and Kimball R. Anderson and T. Alexis MacDowall are granted leave to withdraw their appearance and shall be removed from the case service list [317−1]. (Entered Order on Motion for Leave to Withdraw). Notices mailed by judge's staff. (las) (Entered: 03/13/2003)
03/04/2003 322 OBJECTIONS by plaintiff to defendant's proposed jury instructions; Notice (rmm) (Entered: 03/06/2003)
03/10/2003 333 MINUTE ORDER of 3/10/03 by Hon. Warren K. Urbom : It is ordered that the defendant's supplementalmotion in limine to exclude plaintiff's expert's testimony concerning matters raised in section II of her report is denied [300−1]. (Entered Memorandum and Order). Notices mailed by judge's staff. (las) (Entered: 03/13/2003)
03/11/2003 343 MINUTE ORDER of 3/11/03 by Hon. Warren K. Urbom : Defendant's motion Doc. [234−1] for reconsideration of the Court's "Scope of the Charge" and timeliness rulings is denied as being a repetition of filing 239, which was denied by my order of 7/19/02, filing 270. (Entered Memorandum and Order) Mailed notice by judge's staff (eav) (Entered: 03/18/2003)
03/12/2003 323 MOTION by defendant in limine to bar EEOC's newly identified expert witness ; Notice (las) (Entered: 03/13/2003)
03/12/2003 324 MOTION by defendant in limine to exclude evidence of newspaper article regarding Aurora Moose Lodge incident ; Notice (las) (Entered: 03/13/2003)
03/12/2003 325 MOTION by defendant in limine to exclude EEOC's determination letter ; Notice (las) (Entered: 03/13/2003)
03/12/2003 326 MOTION by plaintiff to exclude in limine policies and training materials not limited to sexual harrassment and/or distributed by Dial Corp (Attachments); Notice (las) (Entered: 03/13/2003)
03/12/2003 327 MOTION by plaintiff in limine to bar evidence of any human resource−related actions or efforts of Dial Corp (las) (Entered: 03/13/2003)
03/12/2003 328 MOTION by plaintiff in limine to exclude class members releases (Attachments) (las) (Entered: 03/13/2003)
03/12/2003 329 MOTION by plaintiff in limine to exclude evidence pursuant to Rule 412 (las) (Entered: 03/13/2003)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 25 of 31
03/12/2003 330 MOTION by plaintiff in limine to bar evidence or argument regarding the charge of discrimination underlying this litigation (las) (Entered: 03/13/2003)
03/12/2003 331 MOTION by plaintiff in limine to bar testimony of Dial's expert Barbara Gutek (Attachments) (las) (Entered: 03/13/2003)
03/12/2003 334 MOTION by defendant to admit evidence pursuant to Rule 412 of the Federal Rules of Evidence ; Memorandum in support (RESTRICTED). (yp) (Entered: 03/13/2003)
03/12/2003 335 MOTION by defendant in limine to exclude evidence regarding the claims of a former manager at Dial's Omaha Plant (RESTRICTED). (yp) (Entered: 03/13/2003)
03/12/2003 336 MOTION by defendant in limine to exclude witnesses form testifying about allegations for which they have no personal knowledge (RESTRICTED). (yp) (Entered: 03/13/2003)
03/12/2003 337 MOTION by defendant in limine to exclude evidence regarding unreported acts of coworker sexual harassment (RESTRICTED). (yp) (Entered: 03/13/2003)
03/12/2003 338 MOTION by defendant in limine to exclude evidence of sexually explicit materials never seen by class members during their employment (RESTRICTED). (yp) (Entered: 03/13/2003)
03/12/2003 339 MOTION by defendant in limine to exclude EEOC form informing the Jury about the identity or number of class members (RESTRICTED). (yp) (Entered: 03/13/2003)
03/12/2003 340 MOTION by defendant in limine to exclude evidence of disciplinary records unrelated to allegations of sexual harassment .(RESTRICTED) (yp) (Entered: 03/13/2003)
03/12/2003 341 MOTION by defendant for reconsideration of the court's denial of its motion in limine to exclude evidence of alleged harassment before 1991 and, alternatively, to exclude evidence that is not relevant background evidence (RESTRICTED). (yp) (Entered: 03/13/2003)
03/14/2003 342 OBJECTIONS by defendant Dial Corp to plaintiff's proposed jury instructions; Notice. (vmj) (Entered: 03/17/2003)
03/18/2003 344 MOTION by defendant for reconsideration of the court's denial of its motion in limine to exclude evidence of alleged harassment before 1991 , and, alternatively, to exclude evidence that is not relevant backround evidence (Attachments); Notice (cdy) (Entered: 03/19/2003)
03/18/2003 345 MOTION by defendant The Dial Corporation in limine to exclude EEOC from informing the jury about the identity or number of class members (cdy) (Entered: 03/19/2003)
03/18/2003 346 MOTION by defendant in limine to exclude evidence of disciplinary records unrelated to allegations of sexual harassment (cdy) (Entered: 03/19/2003)
03/18/2003 347 MOTION by defendant in limine to exclude evidence regarding unreported acts of coworker sexual harassment (cdy) (Entered: 03/19/2003)
03/18/2003 348 MOTION by defendant in limine to exclude evidence regarding the claims of a former manager at Dail's Omaha Plant (cdy) (Entered: 03/19/2003)
03/18/2003 349 MOTION by defendant in limine to exclude witnesses from testifying about allegations for which they have no personal knowledge (cdy) (Entered: 03/19/2003)
03/18/2003 350 MOTION by defendant Dial Corp in limine to exclude evidence of sexually explicit materials never seen by class members during their employment (Attachments). (ntf) (Entered: 03/20/2003)
03/21/2003 351 MEMORANDUM by defendant in opposition to EEOC's motion in limine to exclude class members releases [328−1]; Notice. (fce) (Entered: 03/24/2003)
03/21/2003 352 MEMORANDUM by defendant in opposition to EEOC's motion in limine to bar evidence or argument regarding the charge of discrimination underlying this litigation [330−1]. (fce) (Entered: 03/24/2003)
03/21/2003 353 MEMORANDUM by defendant in opposition to EEOC's motion in limine to exclude evidence pursuant to Rule 412 [329−1]. (fce) (Entered: 03/24/2003)
03/21/2003 354 MEMORANDUM by defendant in opposition to EEOC's motion in limine to bar testimony of Dial's expert Barbara Gutek [331−1] (Attachments). (fce) Modified on 03/24/2003 (Entered: 03/24/2003)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 26 of 31
03/21/2003 355 MEMORANDUM by defendant in opposition to EEOC's motion in limine to bar evidence of any human resource−related actions or efforts of Dial Corp [327−1] (Attachments); Notice. (fce) (Entered: 03/24/2003)
03/21/2003 356 MEMORANDUM by defendant Dial Corp in opposition to EEOC's motion to exclude policies and training materials not limited to sexual harrassment and/or distributed by Dial Corp [326−1] (Attachments) (eav) (Entered: 03/25/2003)
03/24/2003 357 RESPONSE by plaintiff to defendant's motion in limine to exclude EEOC from asking witnesses to offer opinion testimony on the ultimate issue for the jury; Notice of filing (eav) (Entered: 03/25/2003)
03/24/2003 358 RESPONSE by plaintiff EEOC to defendant's motion in limine to exclude evidence of disciplinary records unrelated to allegations of sexual harassment [347−1] (eav) (Entered: 03/25/2003)
03/24/2003 359 MEMORANDUM by plaintiff in opposition to Dial's motion in limine to exclude newly identified certified Public Accountant (eav) (Entered: 03/25/2003)
03/24/2003 360 RESPONSE by plaintiff EEOC to Dial's motion in limine to exclude EEOC's determination letter (eav) (Entered: 03/25/2003)
03/24/2003 361 MEMORANDUM by plaintiff EEOC in opposition to Dial's motion in limine to exclude sexually explicit materials [350−1] (eav) (Entered: 03/25/2003)
03/24/2003 362 RESPONSE by plaintiff EEOC to Dial's motion in limine to exclude evidence of newspaper article regarding Aurora Moose Lodge incident [324−1] (Attachments) (eav) (Entered: 03/25/2003)
03/24/2003 363 RESPONSE by plaintiff EEOC to defendant's motion for reconsideration of the court's denial of Dials motion in limine to exclude evidence of alleged harassment before 1991 or [344−1], alternatively to exclude evidence that is not relevant backround evidence [344−2] (eav) (Entered: 03/25/2003)
03/24/2003 364 RESPONSE by plaintiff to defendant's motion in limine to exclude evidence regarding unreported acts of coworker sexual harassment [347−1] (RESTRICTED). (ntf) (Entered: 03/25/2003)
03/24/2003 365 RESPONSE by plaintiff to defendant's motion in limine to exclude witnesses from testifying about allegations for which they have no personal knowledge [349−1] (RESTRICTED). (ntf) (Entered: 03/25/2003)
03/24/2003 366 RESPONSE by plaintiff to defendant's motion in limine to admit evidence pursuant to Rule 412 [329−1] (RESTRICTED). (ntf) (Entered: 03/25/2003)
03/24/2003 367 RESPONSE by plaintiff to defendant's motion in limine to exclude EEOC form informing the Jury about the identity or number of class members [339−1] (RESTRICTED). (ntf) (Entered: 03/25/2003)
03/24/2003 368 RESPONSE by plaintiff to defendant's motion in limine to exclude evidence regarding the claims of a former manager at Dail's Omaha Plant [348−1]; Notice (RESTRICTED). (ntf) (Entered: 03/25/2003)
03/25/2003 369 JOINT MOTION by parties to modify filing date for deposition designation submissions ; Notice. (cem) (Entered: 03/27/2003)
03/26/2003 370 MINUTE ORDER of 3/26/03 by Hon. Warren K. Urbom : Joint motion to modify filing date for deposition designation is granted [369−1]. (Entered Order on Joint Motion to Modify Filing Date for Deposition Designation Submission) Notice mailed by judge's staff (ntf) Modified on 03/31/2003 (Entered: 03/31/2003)
03/27/2003 383 REPLY by defendant in support of its motion in limine to bar EEOC's newly identified expert witness [323−1]; Notice. (fce) (Entered: 03/31/2003)
03/27/2003 384 REPLY by defendant in support of its motion in limine to exclude EEOC's determination letter [325−1]. (fce) (Entered: 03/31/2003)
03/27/2003 385 REPLY by defendant in support of its motion in limine to exclude EEOC from asking witnesses to offer opinion testimony on the ultimate issue for the jury. (fce) (Entered: 03/31/2003)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 27 of 31
03/27/2003 386 REPLY brief by defendant in support of its motion for reconsideration of the court's denial of its motion in limine to exclude evidence of alleged harassment before 1991 [344−1], and, alternatively, to exclude evidence that is not relevant backround evidence [344−2]. (fce) (Entered: 03/31/2003)
03/27/2003 387 REPLY by defendant in support of its motion in limine to exclude evidence regarding the claims of a former manager at Dial's Omaha Plant [348−1] (RESTRICTED). (fce) (Entered: 03/31/2003)
03/27/2003 388 REPLY by defendant in support of its motion in limine to exclude EEOC from informing the jury about the identity or number of class members [345−1] (RESTRICTED). (fce) (Entered: 03/31/2003)
03/28/2003 371 REPLY by plaintiff in support of its to motion in limine to bar evidence or argument regarding the charge of discrimination underlying this litigation [330−1]. (ntf) Modified on 03/31/2003 (Entered: 03/31/2003)
03/28/2003 372 REPLY by plaintiff in support of its motion in limine to exclude evidence pursuant to Rule 412 [329−1]. (ntf) Modified on 03/31/2003 (Entered: 03/31/2003)
03/28/2003 373 REPLY by plaintiff in support of its motion in limine to bar testimony of Dial's expert Barbara Gutek [331−1]. (ntf) (Entered: 03/31/2003)
03/28/2003 374 REPLY by plaintiff in support of its motion in limine to exclude class members releases [328−1]. (ntf) (Entered: 03/31/2003)
03/28/2003 375 REPLY by plaintiff in support of its motion in limine to bar evidence of any human resource−related actions or efforts of Dial Corp [327−1] (Attachments). (ntf) Modified on 03/31/2003 (Entered: 03/31/2003)
03/28/2003 376 REPLY by plaintiff in support of its motion to exclude in limine policies and training materials not limited to sexual harrassment and/or distributed by Dial Corp [326−1]; Notice. (ntf) (Entered: 03/31/2003)
03/28/2003 377 REPLY by defendant The Dial Corp. in support of its motion in limine to exclude evidence of disciplinary records unrelated to allegations of sexual harassment [346−1]; Notice (cdy) (Entered: 03/31/2003)
03/28/2003 378 REPLY by defendant in support of its motion in limine to exclude evidence of newspaper article regarding Aurora Moose Lodge incident [324−1] (cdy) (Entered: 03/31/2003)
03/28/2003 379 REPLY by defendant in support if its motion in limine to exclude evidence regarding unreported acts of coworker sexual harassment [347−1] (cdy) (Entered: 03/31/2003)
03/28/2003 380 REPLY by defendant in support of its motion in limine to exclude witnesses from testifying about allegations for which they have no personal knowledge [349−1] (cdy) (Entered: 03/31/2003)
03/28/2003 381 REPLY by defendant in support of its motion to admit evidence pursuant to Federal Rule of Evidence 412 (RESTRICTED) (cdy) (Entered: 03/31/2003)
03/28/2003 382 REPLY by defendant in support of its motion in limine to exclude evidence of sexually explicit materials never seen by class members during their employment [350−1] (RESTRICTED) (cdy) (Entered: 03/31/2003)
03/31/2003 391 MINUTE ORDER of 3/31/03 by Hon. Warren K. Urbom : Defendant's motion in limine to bar EEOC's newly identified expert witness is granted [323−1], to the extend that EEOC may not present Jerome Lipman as a witness in the plaintiff's case in chief. Entered Memorandum and Order on Defendant's Motion in Limine to Bar EEOC's Newly Identified Expert Witness. Mailed notice by judge's staff (emd) (Entered: 04/04/2003)
04/01/2003 389 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom : Defendant's motion in limine to exclude evidence regarding unreported acts of coworker sexual harassment is denied [337−1], [347−1]. Entered Memorandum and Order on Defendant's Motion in Limine to Exclude Evidence Regarding Unreported Acts of CoWorker Sexual Harassment. Mailed notice by judge's staff (emd) (Entered: 04/04/2003)
04/01/2003 390 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom : Defendant's motion in limine to exclude evidence of disciplinary records to allegations of sexual harassment is denied [340−1], [346−1]. Entered Memorandum and Order on Defendant's Motion in Limine to

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Exclude Evidence of Disciplinary Records Unrelated to Allegations of Sexual Harassment. Mailed notice by judge's staff (emd) (Entered: 04/04/2003)

04/01/2003 392 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom : Defendant's motion in limine to exclude evidence of sexually explicit materials never seen by class members during their employment is denied [338−1], [350−1]. Entered Memorandum and Order on Defendant's Motion in Limine to Exclude Evidence of Sexually Explicit Materials Never Seen by Class Members During Their Employment. Mailed notice by judge's staff (emd) (Entered: 04/04/2003)

04/01/2003 393 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom : Defendant's motion in limine to exclude EEOC form informing the Jury about the identity or number of class members is granted with respect to Phase I of the trial [339−1], [345−1]. Entered Memorandum and Order on Defendant's Motions in Limine to Exclude EEOC from Informing the Jury about the Identity or Number of Class Members. Mailed notice by judge's staff (emd) (Entered: 04/04/2003)

04/01/2003 394 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom : Defendant's motion in limine to exclude evidence regarding the claims of a former manager at Dial's Omaha Plant is granted [335−1], [348−1]. Entered Memorandum and Order on Defendant's Motion in Limine to Exclude Evidence Regarding the Claims of a Former Manager at Dial's Omaha Plant. Mailed notice by judge's staff (emd) (Entered: 04/04/2003)

04/01/2003 395 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom : Defendant's motion in limine to exclude witnesses form testifying about allegations for which they have no personal knowledge is denied [336−1], [349−1]. Entered Memorandum Opinion Order on Defendant's Motion in Limine To Exclude Witnesses From Testifying About Allegations For Which They Have No Personal Knowledge. Mailed notice by judge's staff (emd) Modified on 04/04/2003 (Entered: 04/04/2003)

04/01/2003 397 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom: Defendant's motion in limine to exclude EEOC's determination letter is denied [325−1]. (Entered Memorandum and Order on defendant's motion in limine to exclude EEOC's determination letter.) Notices mailed by judge's staff (rmm) (Entered: 04/08/2003)

04/01/2003 398 MINUTE ORDER of 4/1/03 by Hon. Warren K. Urbom : Defendant's motion to exclude evidence of newspaper article regarding Aurora Moose Lodge incident is granted [324−1]. (Entered Memorandum and Order on defendant's motion in limine to exclude evidence of newspaper article regarding Aurora Moose Lodge incident.) Notices mailed by judge's staff (rmm) (Entered: 04/08/2003)

04/02/2003 396 MINUTE ORDER of 4/2/03 by Hon. Warren K. Urbom : Defendant's motion for reconsideration of the court's denial of its motion in limine to exclude evidence of alleged harassment before 1991 and, alternatively, to exclude evidence that is not relevant background evidence is granted in part and denied in part [341−1], [344−1], [344−2]. Entered Memorandum and Order on Defendant's Motion for Reconsideration of the Court's denial of its Motion in Limine to exclude evidence of alleged harassment before 1991 and, alternatively, to exclude evidence that is not relevant background evidence. Mailed notice (emd) Modified on 04/04/2003 (Entered: 04/04/2003)

04/07/2003

SCHEDULE set on 4/3/03 by Hon. Warren K. Urbom : Pretrial conference held. No notice (sct) (Entered: 04/07/2003)

04/10/2003 399 MOTION by defendant for reconsideration of this court's 2/14/03 ruling regarding bifurcated trial procedures ; Memorandum in support (Attachments); Notice (rmm) (Entered: 04/11/2003)

04/10/2003 400 OBJECTIONS by EEOC to Dial's deposition designations with counter−designations (Attachments); Notice (rmm) (Entered: 04/11/2003)

04/10/2003 400 COUNTER−DESIGNATIONS by EEOC with objections (Attachments); Notice (rmm) (Entered: 04/11/2003)

04/10/2003 401 MINUTE ORDER of 4/10/03 by Hon. Warren K. Urbom : EEOC's motion to exclude in limine policies and training materials not limited to sexual harrassment and/or distributed by Dial Corp is denied [326−1]. (Entered Memorandum and Order on EEOC's Motion To Exclude In Limine Policies And Training Materials Not Limited To Sexual Harassment And/Or Distributed By Dial Corp.) Mailed notice by judge's staff (lc) (Entered: 04/15/2003)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 29 of 31
04/11/2003 402 MINUTE ORDER of 4/11/03 by Hon. Warren K. Urbom : Plaintiff is given to 04/18/03 to respond to defendant's motion for reconsideration of this Court's 2/14/03 ruling regarding bifurcated trial procedures [399−1]/ and the defendant may reply on or before 4/23/03. (Entered Briefing Schedule.) Mailed notice by judge's staff (lc) (Entered: 04/15/2003)
04/14/2003 403 DEPOSITION of Kimberly Branch−Woolfolk taken on the following date(s): 03/01/00; Notice. (lc) (Entered: 04/15/2003)
04/14/2003 404 OBJECTIONS by defendant to plaintiff's deposition counterdesignation (RESTRICTED) (lc) (Entered: 04/15/2003)
04/14/2003 405 OBJECTIONS by defendant to plaintiff's deposition designations with Counterdesignations (RESTRICTED) (lc) (Entered: 04/15/2003)
04/14/2003 405 COUNTERDESIGNATIONS by defendant to plaintiff's deposition designation with Objections (RESTRICTED). (lc) (Entered: 04/15/2003)
04/15/2003 407 MINUTE ORDER of 4/15/03 by Hon. Warren K. Urbom : The defendant's motion in limine to exclude EEOC from asking Witnesses to offer opinion testimony on the ultimate issue for the jury, is granted, to the extend that law witnesses shall not be permitted to express opinions of whether particular conduct met the witness' definition of sexual harassment, or to define sexual harassment, but to the extent that the motion seeks to prevent managers of the Dial Corp. from testifying to their understanding of sexual harassment for the purpose of showing what they understood to be their responsibilities under Dial's policies, the motion is denied. (Entered Memornadum and Order) Mailed notice by judge's staff (eav) (Entered: 04/18/2003)
04/16/2003 408 MINUTE ORDER of 4/16/03 by Hon. Warren K. Urbom : The opinions expressed in Dr. Gutek's report concerning the Sexual Experiences questionnaire may be received into evidence to rebut the testimony of Dr. Fitzgerald to the extent that Dr. Fitzgerald's testimony based upon research that employed the Sexual Experiences Questionnaire. The EEOC's motion in limine to bar testimony of Dial's expert Barbara Gutek is otherwise granted [331−1]. Entered Memorandum and Order. Mailed notice by judge's staff (jmp) (Entered: 04/21/2003)
04/16/2003 410 MINUTE ORDER of 4/16/03 by Hon. Warren K. Urbom: EEOC's motion in limine to bar evidence of any human resource−related actions or efforts of Dial Corp is denied [327−1]. (Entered Order) Notices mailed by judge's staff (vmj) (Entered: 04/22/2003)
04/17/2003 406 MOTION by defendant Dial Corp to amend the parties' final pretrial order ; Notice of filing (eav) (Entered: 04/18/2003)
04/17/2003 411 MINUTE ORDER of 4/17/03 by Hon. Warren K. Urbom: The order on defendant's objections to the court's First Version of preliminary jury instruction reflects, I belief, the effect of the plaintiff's objections to defendant's proposed jury instructions. Insofar as changes have been made in the Second Revised Version of preliminary instructions−Phase I, the plaintiff's objections are denied. (Entered Order on Plaintiff's Objections to Defendant's Porposed Jury Instructions) Notices mailed by judge's staff (vmj) (Entered: 04/22/2003)
04/18/2003 409 MEMORANDUM by plaintiff in opposition to Dial's motion for reconsideration of Court's 02/14/03 order regarding trial procedures for punitive damages; Notice. (jmp) (Entered: 04/21/2003)
04/18/2003 412 RESPONSE by plaintiff to defendant's objections and plaintiff's objections to the court's first revised version of preliminary jury instructions; Notice. (vmj) (Entered: 04/22/2003)
04/18/2003 413 MINUTE ORDER of 4/18/03 by Hon. Warren K. Urbom: EEOC's motion in limine to exclude class members releases, asking that Phase I and II not be permitted to reveal testimony or exhibits which relate to releases by EEOC's class members, is granted [328−1]. (Entered Order) Notices mailed by judge's staff (vmj) (Entered: 04/22/2003)
04/18/2003 414 MINUTE ORDER of 4/18/03 by Hon. Warren K. Urbom: Defendant's motion in limine to exclude EEOC from informing the jury about the identity or number of class members, filing 339 and 345, is granted with respect to Phase II of the trial. (Entered Order). Notices mailed by judge's staff (vmj) (Entered: 04/22/2003)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 30 of 31
04/18/2003 417 MOTION by plaintiff for modification of the court's 4/2/03 order excluding pre−1986 evidence of harassment and the court's 9/17/02 order on defendant's motion in limine to exclude evidence of alleged harassment before 1994, or alternatively, before 1991 . (RESTRICTED) (cem) (Entered: 04/22/2003)
04/18/2003 418 MINUTE ORDER of 4/18/03 by Hon. Warren K. Urbom : (Entered Order on Defendant's Proposed Jury Instructions). Notice mailed by judge's staff (ntf) (Entered: 04/25/2003)
04/21/2003 415 REPLY brief by defendant in support of its motion for reconsideration of this court's 2/13/03 ruling regarding bifurcated trial procedures [399−1]. (vmj) (Entered: 04/22/2003)
04/21/2003 416 FIRST revised verion of preliminary instructions. (vmj) (Entered: 04/22/2003)
04/21/2003 419 MINUTE ORDER of 4/21/03 by Hon. Warren K. Urbom : Plaintiff's motion in limine to bar evidence or argument regarding the charge of discrimination underlying this litigation [330−1] is granted. (Entered Memorandum and Order on Plaintiff's Motion in Limine to Bar Evidence or Argument Regarding the Change of Discrimination Underlying this Litigation). Notice mailed by judge's staff (ntf) (Entered: 04/25/2003)
04/21/2003 420 MINUTE ORDER of 4/21/03 by Hon. Warren K. Urbom: (Entered Order on Defendant's and Plaintiff's Objections to the Court's First Revised Version of Preliminary Jury Instructions). Notice mailed by judge's staff (ntf) (Entered: 04/25/2003)
04/22/2003 421 MINUTE ORDER of 4/22/03 by Hon. Warren K. Urbom : Defendant's motion for reconsideration of this court's 2/14/03 ruling bifurcated trial procedures [399−1] is denied. The trial shall be conducted essentially in the manner set out in the foregoing memorandum, subject to alterations that may come to be needed. (Memorandum and Order on Defendant's Motion for Reconsideration of this Court's 02/14/03 Ruling Regarding Bifurcated Trial Procedures) Notice mailed by judge's staff (ntf) (Entered: 04/25/2003)
04/22/2003 422 MINUTE ORDER of 4/22/03 by Hon. Warren K. Urbom : Defendant's motion to admit evidence pursuant to Rule 412 of the Federal Rules of Evidence [334−1], and EEOC's motion to exclude evidence pursuant to Rule 412 [329−1] are denied in part and held in abeyance until a hearing can be held as required by Rule 412(c)(2). (Entered Memorandum and Order on Defendant's Motion to Admit Evidence Pursuant to Rule 412 of Federal Rules of Evidence) Notice mailed by judge's staff (ntf) (Entered: 04/25/2003)
04/22/2003 423 MINUTE ORDER of 4/22/03 by Hon. Warren K. Urbom : EEOC's motion in limine to exclude evidence pursuant to Rule 412 is denied [329−1]. (Memorandum and Order on EEOC'S Motion in Limine to Exclude Evidence Pursuant to Rule 412) Notice mailed by judge's staff (ntf) (Entered: 04/25/2003)
04/22/2003 432 SECOND REVISED version of preliminary instructions−Phase I. (yp) (Entered: 06/25/2003)
04/23/2003 424 FINAL PRE−TRIAL ORDER (Attachments). (ntf) (Entered: 04/25/2003)
04/24/2003 425 ADDITIONAL deposition designations for unavailable witnesses by plaintiff EEOC; Notice, (vmj) (Entered: 04/29/2003)
04/25/2003 427 MINUTE ORDER of 4/25/03 by Hon. Warren K. Urbom: Enter Memorandum and Order on defendant's objections to plaintiff's deposition designations: The defendant's objections to the plaintiff's deposition designations are sustained in part as set forth in the memorandum accompanying this order. (Entered Memorandum and Order On Defendant's Objections to Plaintiff's Deposition Designations.) Notice mailed by judge's staff (air) (Entered: 05/07/2003)
04/28/2003 426 MINUTE ORDER of 4/28/03 by Hon. Warren K. Urbom: Trial reset for 04/29/03 at 9:00 a.m. Parties are assessed jury costs in the total amount of $1,550.00 for 31 unused jurors on 04/28/03. Parties to make said payment to the Clerk, U.S. District Court. Telephoned notice (cdy) (Entered: 04/29/2003)
04/29/2003 428 MINUTE ORDER of 4/29/03 by Hon. Warren K. Urbom : Joint motion for entry of consent decree is granted. Enter Consent Decree. All pending motions are moot. [406−1] [417−1] Are scheduled events are also moot. (Entered Consent Decree) terminating case Mailed notice (hp) (Entered: 05/09/2003)
04/29/2003 429 JOINT MOTION by parties for entry of consent decree (hp) (Entered: 05/09/2003)

Case: 1:99-cv-3356 As of: 10/30/2009 03:35 PM CDT 31 of 31

05/22/2003 430 NOTIFICATION by defendant of Dial's consent decree monitor appointee; Notice. (air) (Entered: 05/23/2003)

05/28/2003 431 NOTIFICATION of the parties' appointment of the consent decree monitor chairperson; Notice. (gcy) (Entered: 05/29/2003)

09/18/2003 433 NOMINATION by plaintiff for appointment of Special Master Robin Potter pursuant to consent decree; Notice. (hp) (Entered: 09/19/2003)

09/22/2003 434 MINUTE ORDER of 9/22/03 by Hon. Warren K. Urbom : Robin Potter is appointed Special Master pursuant to the Consent Decree entered on 04/09/03. (Entered Approval of Nomination for Appointment of Special Master.) Mailed notice (hp) (Entered: 09/25/2003)

12/03/2003 435 WITHDRAWAL by plaintiff of appearance of attorney Noelle C. Brennan ; Notice (hp) (Entered: 12/05/2003)

01/08/2004 436 FINAL settlement distribution list and copies of signed release by plaintiff; Notice. (RESTRICTED) (emd) (Entered: 01/09/2004)

01/26/2004 437 MINUTE ORDER of 1/26/04 by Hon. Warren K. Urbom : Enter order that the allocation of the settlement fund as set forth in the Final Settlement Distribution List, filed 01/08/04, is approved. (Entered Order on Plaintiff EEOC's Motion for the Court's Approval of the Allocation of Settlement Fund Among Eligible Claimants.) Notices mailed by judge's staff (hp) (Entered: 01/30/2004)

02/13/2004 438 MOTION by plaintiff withdrawal of appearance of John A. Knight ; Notice (hp) (Entered: 02/17/2004)

05/26/2004 439 ONE−YEAR REPORT by the consent decree monitors to the parties and the Court by attorneys George F. Galland, Jr. Reginald E. Jones, Nancy B. Kreiter; Notice. (hp) (Entered: 05/27/2004)

09/10/2004 440 MINUTE ORDER of 9/10/04 by Hon. Warren K. Urbom: Plaintiffs' motions to withdraw the appearances of Noelle C. Brennan and John A. Knight are granted [435−1] and [438−1]. (Entered Order) Notices mailed by judge's staff (vmj) (Entered: 09/14/2004)

05/24/2005 441 SECOND−YEAR REPORT by George F. Galland, Jr., Reginald E. Jones, Nancy B. Kreiter as to Equal Employment Opportunity Commission, Dial Corporation; Notice of filing. (hp, ) (Entered: 05/31/2005)

10/27/2005 442 Final Report of the Consent Decree Monitors to the parties and the Court (Galland, George) Modified on 10/28/2005 (rbf, ). (Entered: 10/27/2005)

07/29/2008 443 MINUTE entry before the Honorable James F. Holderman:The parties in this case are given to August 12, 2008 to remove all documents filed under seal with the Clerk of Court. Parties are to contact the Clerk of Court with respect to instructions on how to retrieve said documents. The Clerk of Court is given authority to destroy all under seal documents in his possession if they are not retrieved by the close of business August 12, 2008.Mailed notice (sct, ) (Entered: 07/29/2008)

08/01/2008 444 ACKNOWLEDGMENT by Dial Corporation of Receipt of Sealed Documents:122,128,132,143,147,162,168,169,190,191,192,206,233,234,235,236,254,255, 256, 245,257,292,334,335,336,337,338,339,340,341,387,388,381,382,404,405. (ep, ) (Entered: 08/04/2008)

08/27/2008

SEALED/RESTRICTED documents 149,125,126,127,121,120,119,150,148,146,142,165,417,364,365,366,367,368,161,160,156, 155,164,436 176(2Vols)destroyed per court order dated 7/29/08. (dlc, ) Modified on 6/19/2009 (dlc, ). (Entered: 05/26/2009)

 
 Minute Order Fonn (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Warren K. Urbom

Sitting Judge if Other than Assigned Judge

CASE NUMBER

99 C 3356

DATE

9/1712002

CASE TITLE
MOTION:

EEOC vs. Dial Corp.
..
[In the followmgbox (a) mdlcate the party fihng the matton, e.g., plamtlff, defendant, 3rd partyplamtlff, and (b) state bnefly the nature of the motion being presented,]

DOCKET ENTRY:

(I) o

Filed motion of [use listing in "Motion" box above.]

(2) o

Brief in support of motion due ___.

(3)

o

Answer brief to motion due___. Reply to answer brief due___.

(4) o

Ruling/Hearing on ___ set for ___ at ___.

(5) o

Status hearing[held!continued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _.

(6) o

Pretrial conference[held!continued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _.

(7) o

Trial[set for/re-set for] on _ _ _ at _ _ _.

(8) o

[Bench/Jury trial] [Hearing] held!continued to ___ at ___.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(I) 0 FRCP41(a)(2).

(10).

[Other docket entry] Enter Memorandum and Order: Defendant's motion in limine to exclude

evidence of sex-based harassment, retaliation, or other forms of discrimination (232-1) is denied.

• (11)

[For further detail see order attached to the original minute order.]

-

No notices required, advised in open court.

No notices required.

7 -

Notices mailed by judge's staff.

-

Notified counsel by telephone.

-

Docketing to mail notices.

-

Mail AO 450 form,

Copy to judge/magistrate judge.

courtroom

GL

deputy's

initials

Date/time received 11\ \
central Clerk's Office .

numberofnotiees
&p 30 2002
date docketed
GL mailing deputy initials

nQe",nent
J\b!m~¢r

~.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

DIAL CORPORATION,

)

)

Defendant.

)

CIVIL ACTION NO. 99 C 3356
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SEX-BASED HARASSMENT, RETALIATION, OR OTHER FORMS OF DISCRIMINATION

Before me are four motions by the defendant in limine. They are:
1. Defendant's Motion In Limine to Exclude Evidence of Sex-Based Harassment, Retaliation, or Other Forms of Discrimination, filing 232;
2. Defendant's Motion In Limine to Exclude Evidence Relating to Allegations of Class Member 80, filing 233 and 237;
3. Defendant's Motion In Limine to Exclude Plaintiffs Expert's Testimony, filing 235 and 243; and
4. Defendant's Motion In Limine to Exclude Evidence of Alleged Harassment Before 1994, or Alternatively, before 1991, filing 236 and 240.
These motions are extensive and I have decided to choose between writing a full explanation over a fairly substantial period of time or writing briefly in a much shorter period of time. I have elected the second in the spirit of expediency, although the thought process has not and will not be restricted.
The defendant's first motion in limine asks simply that the court exclude from evidence at trial any testimony or documentary exhibits relating to sex-based harassment, retaliation, or other forms of discrimination. This memorandum and order will deal only with that motion. The motion will be denied.
Motions in limine are not explicitly authorized by the Federal Rules of Evidence, but, according to the Supreme Court:
[T]he practice has developed pursuant to the district court's inherent authority to manage the course of trials. See generally Fed. Rule Evid. 103(c); cj Fed. Rule
~£

Crim. Proc. 12(e).
Luce v. United States, 469 U.S. 38,41, n. 4 (1984).
Understandably, the defendant prefers that I rule now on what may be substantial blocks of evidence that describe incidents that Judge Posner has referred to as being "remote" from sexual harassment, such as:
a simple refusal to hire women, from holding them to higher standards than their male coworkers, or from refusing to make accommodations for differences in upper-body strength or other characteristics that differ systematically between the sexes ...
DeClue v. Central Illinois Light Co., 223 F.3d 434 (7th Cir. 2000). Judge Posner was not deciding what evidence could be received and a common requirement for granting a motion in limine to exclude evidence is that the evidence sought to be excluded is clearly inadmissible for any purpose. See, for example, Jonasson v. Lutheran Child and Family Services, 1995 WL 579510 (N.D. Ill.).
Some evidence may be admissible as background evidence that provides context for other evidence of discrimination. McCleland v. Montgomery Ward & Co., Inc. 1995 WL 571324 (N.D. Ill.) ("It is well-established that evidence relating to acts that are not the subject of a viable claim may be admissible as background evidence that provides context for the discrimination alleged. (Citations omitted)."
Because I do not specifically know what evidence the plaintiff proposes to put forward and I do not know what specific evidence the defendant is concerned about, I cannot say that any identifiable evidence is clearly inadmissible for any purpose. Hence, I must await until the trial and make a ruling in light ofthe developments at the trial.
The defendant argues that in my opinion of August 9, found now at 156 F. SUpp. 2nd 926, 963, 964, and n. 30, I dismissed the individual claims of twelve class members and in doing so gave rationale for excluding testimony regarding sex discrimination, retaliation, or other forms of discrimination. However, I was not making evidentiary rulings in that opinion and I cannot make the sweeping request that the defendant asks. To be sure, awaiting proffers at the trial will mean some occasions of delay, but I shall be alert to moving with reasonable dispatch in dealing with the evidentiary issues.
I am mindful that Rule 403 ofthe Federal Rules of Evidence is a guard against "unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, and cumulative evidence." I hope to employ appropriately that rule, as well as Rule 402 which insists upon the proffered evidence being relevant. For reasons explained in my Memorandum and Order on Defendant's Motion for Summary Judgment, dated August 9, 2001, filing 204,
-2-

· --.,-
pages 35 ff., resulting in dismissal of some class members' claims based upon allegations of "sex-based harassment," rather than "sexual harassment," the distinction between "sex-based harassment" and "sexual harassment," is real and appropriate. While I cannot rule that all evidence ofwitnesses who may have been victims of sex-based harassment can at this point be ruled inadmissible, because their testimony may be admissible for some purpose, I do expect to exclude evidence of sex-based harassment under Rule 403 or 402 or both, in the absence of some persuasive showing that the testimony is admissible for some purpose directly relating to a pattern or practice of tolerating sexual harassment as distinguished from sex-based harassment.
IT IS ORDERED that the defendant's Motion In Limine to Exclude Evidence of Sex-
Based Harassment, Retaliation, or Other Forms ofDiscrimination, filing 232, is denied. Dated SeptemberL,l, 2002. BY THE COURT
/ / .' CZ----q ~7flF9itn/~J?t(?11'V
Warren K. Urbom United States Senior District Judge
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 ~-----

~

Minute Order Form (06/97)

~

United States District Court, Northern District of Illinois

J

Name of Assigned Judge

or Magistrate Judge

Warren K. Urbom

Sitting Judge if Other than Assigned Judge

CASE NUMBER

99 C 3356

DATE

412912003

CASE TITLE
MOTION:

EEOC vs. Dial Corp.
[In the following box (a) indicate the party filmg the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly lhe nature of the motion being presented.]

DOCKET ENTRY:

(1) o

Filed motion of [use listing in "Motion" box above.]

(2) o

Brief in support of motion due ___.

(3) o

Answer brief to motion due___. Reply to answer brief due___.

(4) o

RulinglHearing on ___ set for ___ at ___.

(5) o

Status hearing[heldlcontinued to] [set for/re-set for] on ___ set for ___ at ___.

(6) o

Pretrial conference[heldlcontinued to] [set for/re-set for] on ___ set for ___ at ___.

(7) o

Trial[set for/re-set for] on ___ at ___.

(8) o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(l) 0 FRCP41(a)(2).

(10) •

[Other docket entry] Joint motion for entry of consent decree is granted. Enter Consent Decree.

All pending motions are moot. Are scheduled events are also moot.

•

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
.I Notices mailed by judge's staff.

Notified counsel by telcphone.

Docketing to mail notices. Mail AO 450 form.

Copy

SCT

mailing deputy initials

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

Case No. 99-C-3356

v.
THE DIAL CORPORATION, Defendant.

Judge Warren K. Urbom
POCKETED
il1.Lj y 09 ZOO]

CONSENT DECREE

I. This Consent Decree (the "Decree") is made and entered into by and between Plaintiff United States Equal Employment Opportunity Commission (hereinafter referred to as the "Commission" or "EEOC") and Defendant The Dial Corporation (hereinafter referred to as "Dial") (EEOC and Dial are collectively referred to herein as "the Parties").

2. On May 20, 1999, EEOC initiated this action by filing its Complaint against Dial. EEOC's Complaint alleged that Dial violated Title VII of the Civil Rights Act of 1964, as amended, including, but not limited to, amendments authorized by the Civil Rights Act of 1991, 42 U.S.c. §2000e et seq. ("Title VII"), by engaging in a pattern or practice of sexual harassment and sex-based harassment against a class of current and former female employees since at least July, 1988.

3. On July 20, 1999, Dial filed its Answer to EEOC's Complaint, denying the allegations contained in the Complaint.

4. In the interest of resolving this matter and as a result of having engaged in comprehensive settlement negotiations, the Parties have agreed that this action should be finally resolved by entry of this Decree. This Decree shall not constitute an adjudication and/or finding on the merits of the case, and shall not be used as evidence of liability, res judicata, or collateral estoppel in any other legal proceeding against Dial.

5. This Decree is final and binding upon the Parties, their agents, successors and assigns.

6. The Parties agree that this Decree resolves all claims arising out of the underlying complaint, as well as the allegations that were raised during this case. This Decree also finally resolves all claims arising out of the following EEOC Charge Numbers: 210961173, 210A202427, 210A203242, 32E960213, 210910630, 210910511, 21B89-0816, 210900222, 210880791, and 210891245, as well as any amendments to those charges or the charges of any other individuals who receive monetary relief under this Consent Decree, and constitutes a

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CH220138478.1

complete resolution of all claims of sexual harassment, sex-based harassment, sex discrimination, retaliation and/or constructive discharge that were made or could have been made by the EEOC in this action, under Title VII, 42 U.S. C., §2000e et seq., the Pregnancy Discrimination Act, 42 U.S.c. §2000e(k) and the Equal Pay Act of 1963,29 .S.c. §201, all as amended. The Parties further agree that this Decree does not, however, resolve any Charges that may be pending with EEOC other than the Charges specifically referred to in this paragraph or those that may be released by "Eligible Claimants" (as that term is defined herein) pursuant to this Decree. The EEOC further agrees to not pursue any merits litigation with respect to EEOC Charge Number 2IBA23592.
7. This Decree constitutes the complete agreement between EEOC and Dial with respect to the matters referred to herein. No waiver, modification or amendment of any provision of this Decree shall be effective unless made in writing, approved by all parties to this Decree and approved by the Court or ordered by the Court.
NOW, THEREFORE, the Court having carefully examined the terms and provisions of this Consent Decree, and based on the pleadings, record and stipulations of the Parties, it is ORDERED, ADJUDGED AND DECREED THAT:
8. This Court has jurisdiction over the subject matter of this action and over the parties for purposes of entering and enforcing this Decree.
9. The terms of this Decree are adequate, fair, reasonable, equitable and just.
10. This Decree conforms with the Federal Rules of Civil Procedure and is not in derogation of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII and will be in the best interests of the Parties, those for whom EEOC seeks relief, and the public.
II. This Decree comprises the full and exclusive agreement ofthe parties with respect to the matters discussed herein. No representations or inducements to compromise this action have been made, other than those recited or referenced in this Decree (including the Exhibits attached hereto).
Scope of Consent Decree
12. The duration ofthis Decree shall be two and a half (2.5) years from the date of entry of the Decree. During that time, this Court shall retain jurisdiction over this matter and the Parties for purposes of enforcing compliance with the Decree, including issuing such orders as may be required to effectuate its purposes. Accordingly, this Decree shall expire and shall be without force and effect two and a half(2.S) years from the date of entry of this Decree.
General Injunctive Provisions
13. Sexual Harassment. Dial and its officers, agents, management (including supervisory employees), successors and assigns, and all those in active concert or participation with them, or any of them, agree to continue to comply with the provisions of Title VII of the Civil Rights Act of 1964, as amended, and agree in this Consent Decree to be enjoined, and are enjoined, from: (i)
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discriminating against women on the basis of sex; (ii) engaging in or being a party to any action, policy or practice that is intended to or is known to them to have the effect of sexually harassing or intimidating any female employee on the basis of her gender; and/or (iii) creating, facilitating or tolerating the existence of a work environment that is sexually hostile to female employees (hereinafter referred to as "sexual harassment").
14. Retaliation. Dial and its officers, agents, management (including supervisory employees), successors and assigns, and all those in active concert or participation with them, or any of them, agree to continue to comply with the provisions of Title VII ofthe Civil Rights Act of 1964, and agree in this Consent Decree to be enjoined, and are enjoined, from: engaging in, implementing or tolerating any action, policy or practice with the purpose of retaliating against any current or former employee of Dial because he or she opposed any practice of sexual harassment made unlawful under Title VII, filed a Charge of Discrimination alleging any such practice, testified or participated in any manner in any investigation (including, without limitation, any internal investigation undertaken by Dial), proceeding, or hearing in connection with this case and/or relating to any claim of sexual harassment, was identified as a possible witness in this action, asserted any rights under this Decree, or sought and/or received any monetary and/or non-monetary relief in accordance with this Decree (hereinafter referred to as "retaliation") .
Monetary Relief
Establishment of Settlement Fund
15. Dial shall pay the gross sum ofTen Million Dollars ($10,000,000.00) (hereinafter referred to as the "Settlement Fund") to be distributed among all "Eligible Claimants" (as that term is defined in paragraph 18 herein), all in accordance with the provisions ofthis Decree. None of the amounts paid to Eligible Claimants shall be for back pay.
16. Within thirty (30) days after entry ofthis Decree, Dial shall establish and maintain a segregated account on its books, as a liability, for the Settlement Fund in accordance with generally accepted accounting principles. The Settlement Fund shall accrue interest, compounded daily, at a rate equal to the thirty (30) day Treasury Bill Rate (or the closest comparable rate thereto) as published in the Wall Street Journal on the date of entry of this Decree. The Settlement Fund shall accrue interest beginning thirty (30) days after entry of this Decree and continuing until the date oftransfer, as provided for by paragraph 17 of this Decree, and the interest will be credited to the account at least once per month.
17. Dial shall appoint a Payment Agent for the administration of payments from the Settlement Fund. No later than seven (7) days before such payments are to be made to Eligible Claimants, Dial shall transfer to the Payment Agent for deposit into an account at a commercial bank both the principal of and the interest accrued to the Settlement Fund as of the date of such transfer. Such account shall accrue interest at the customary rate for such commercial bank beginning seven (7) days after transfer and continuing until all moneys have been paid out of that account. Only withdrawals authorized by this Decree may be made from the account.
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Claims Process and Distribution of Settlement Fund
18. Eligible Claimants. The Settlement Fund shall be used solely to make payments to women who have previously been identified by EEOC in this action as class members ("Class Members") and women who timely submit claim forms (such persons are hereinafter collectively referred to as "claimants"), and further whom EEOC determines, subject to Court approval, to be eligible to receive monetary relief in this lawsuit (such persons are hereinafter referred to as "Eligible Claimants"). A non-Class Member is ineligible for consideration of a payment from the Settlement Fund unless her claim is timely received by the EEOC. No persons other than Eligible Claimants shall receive any payments from the Settlement Fund.
19. Subject only to the approval of the Special Master and/or the Court (as provided for by this Decree), EEOC shall be the sole determiner of eligibility for relief under this Decree and the amount of monetary relief to be received by any Eligible Claimant under this Decree. Dial will not participate in or object to EEOC's determinations.
20. Eligible Claimants shall include only those individuals who satisfy Paragraph 18 above, and who also satisfy each and all of the following criteria:
(i) the individual was employed by Dial at its Montgomery, Illinois facility, at any time between January 1, 1988 and the date of entry ofthis Decree; and
(ii) EEOC receives evidence credible to EEOC that the individual was subjected to sexual harassment or retaliation; and
(iii) the individual submits an executed Release in the form of Exhibit A.
21. Acting in its discretion and subject only to final approval by the Court (or the Special Master as provided for in paragraphs 30 and 31 this Decree), EEOC shall exclusively determine the eligibility of claimants for reliefunder this Decree. In making such determinations, EEOC may consider whatever evidence EEOC deems appropriate, including, but not limited to, evidence received by EEOC in its investigation of the charge of discrimination underlying this action, in connection with its litigation of this action, and in connection with the claims process provided by this Decree.
22. Acting in its discretion and subject only to final approval by the Court (or the Special Master), EEOC shall assign each Class Member and each individual whose Claim Form is timely received by EEOC and whom EEOC determines to be an Eligible Claimant to one of five "claimant tiers." In assigning Eligible Claimants among these five "claimant tiers," EEOC will consider the following factors: (i) severity of sexual harassment/retaliation, (ii) duration of sexual harassment/retaliation, (iii) extent of harm, (iv) whether the Eligible Claimant was constructively discharged, (v) whether the Eligible Claimant previously signed a release of claims relating to allegations covered by this Consent Decree, (vi) whether the Eligible Claimant complained to any supervisor, manager, human resource representative, or the 1-800 hotline at Dial regarding her allegations of sexual harassment/retaliation, and (vii) whether, and if so, the extent to which, the Eligible Claimant complained to EEOC and cooperated or participated in this litigation prior to April 28, 2003. Individuals who previously advised EEOC not to seek any
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relieffor them in this action shall not be eligible claimants unless they in good faith provide clear and convincing reasons to the EEOC for inclusion as Eligible Claimants.
23. Acting in its discretion and subject only to final approval by the Court, EEOC shall determine the portion ofthe Settlement Fund that will be allocated to each of the five "claimant tiers" provided for by the immediately preceding paragraph. The amounts allocated to each of the "claimant tiers" will vary both in gross amount and on a per capita basis. Within each "claimant tier," the amount of monetary relief to be received by each Eligible Claimant shall be equal and shall reflect the factors enumerated in paragraph 22, above. This Decree contemplates that there will be significant differences in amounts individually received by Eligible Claimants assigned to each of the five claimant tiers as compared to those in other tiers. No Eligible Claimant shall receive more than $300,000.00 in gross monetary relief.
24. This Decree further contemplates that there will be a substantially greater difference in the amounts individually received by Eligible Claimants assigned to the lowest tier, with Eligible Claimants in that lowest tier receiving much lower or nominal amounts. In assigning Eligible Claimants to that lowest tier, substantial weight shall be accorded to factor (vii) in paragraph 22, above.
Procedures To Determine Eligibility
25. Notification of Settlement/Claims Process. Within fourteen (14) days after entry of this Consent Decree, EEOC shall mail a Notice of Settlement to all women who are not Class Members and were employed by Dial at its Montgomery, Illinois facility at any time between January 1, 1988 and the date of entry ofthis Decree. Dial shall cooperate in the notification process, including, among other things, providing to EEOC last known addresses and telephone numbers of current and former female employees who are not class members, to the extent that information has not been previously provided to EEOC. All persons who are not Class Members and who wish to participate in distribution of the Settlement Fund must complete and return a Claim Form to EEOC so that it is actually received by EEOC by the close of business forty-five (45) days after the Notices of Settlement are mailed by EEOC.
26. ANY PERSON WHO IS NOT A CLASS MEMBER, AND FROM WHOM EEOC HAS NOT ACTUALLY RECEIVED A COMPLETED CLAIM FORM BY THE CLOSE OF BUSINESS FORTY-FIVE (45) DAYS AFTER THE NOTICES OF SETTLEMENT ARE MAILED SHALL NOT BE ENTITLED TO RECEIVE ANY MONETARY RELIEF UNDER THE CONSENT DECREE, AND SHALL BE DEEMED, WITHOUT FURTHER ACT OR DEED BY ANY PERSON OR THE COURT, TO BE INELIGIBLE FOR AND FOREVER BARRED FROM RECEIVING ANY PAYMENTS UNDER THIS CONSENT DECREE.
27. EEOC Determination of Eligibility and Computation of Claims. Within seventy-five (75) days after the deadline for receipt by EEOC of returned Claim Forms, EEOC shall make its determinations as to: (i) the eligibility of each claimant who has timely submitted a Claim Form to EEOC, or is a Class Member and (ii) the "claimant tier" assignment of each Eligible Claimant. EEOC shall also make at this time preliminary determinations as to the amount of monetary relief from the Settlement Fund that will be awarded to Eligible Claimants in each tier. Such
7 cm 20138478.1

preliminary determinations may be subject to change based on (i) whether and the extent to which EEOC's determinations as to eligibility and tier placement are modified pursuant to the objection process provided for in this Decree, and/or (ii) the amount of additional interest that has accrued to the Settlement Fund between the date on which EEOC renders its determinations pursuant to this paragraph and the date on which the Settlement Fund is actually distributed to Eligible Claimants.
28. Notification of Eligibility and Tier Assignment. Within seventy-five (75) days after the deadline for receipt by EEOC of returned Claim Forms, EEOC shall mail to each person from whom it has received a Claim Form, or is a Class Member, a letter containing the following information: (i) whether she has been designated an Eligible Claimant; (ii) if so designated, the "claimant tier" to which EEOC has assigned her and the preliminary determination as to the amount of monetary relief to which such person will be entitled as a member of such tier; and (iii) her opportunity to object to EEOC's determinations in accordance with the provisions ofthis Decree. The letter will also inform each Eligible Claimant that any monetary payments she may receive from the Settlement Fund may be subject to mandatory federal, state and local income tax withholding.
29. Confidentiality. Claim Forms received by EEOC shall be treated as confidential and not disclosed to Dial or any other person or entity, except that such Claim Forms may be submitted confidentially to the Special Master or the Court in accordance with the claims process set forth in this Decree.
30. Objection Procedure. Any claimant whose Claim Form is timely received by EEOC and who desires to object to an EEOC determination concerning eligibility or "claimant tier" assignment may do so by submitting to EEOC, within thirty (30) days after the date of mailing of EEOC's determination, a written objection. Any such written objection must state the basis for the objection, the tier into which the claimant believes she should have been assigned, and the specific reasons for such assignment. Within two (2) weeks after receipt of such written objection, EEOC shall review its determination as to eligibility and/or "claimant tier" assignment for the objecting claimant and either modify its determination or deny the objection and submit the objection to a Special Master, who will be nominated within 45 days by EEOC, and, if acceptable, approved by the Court.
31. The Special Master shall promptly consider each written objection he or she receives. Within twenty-one (21) days after receiving from EEOC any objections made by a claimant, or as soon thereafter as is practicable, the Special Master shall render a final determination as to whether the objecting claimant is an Eligible Claimant and/or the appropriate "claimant tier" into which such objecting claimant should be assigned. The Special Master shall notify, in writing, both EEOC and such objecting claimant of that final determination, which shall be binding upon EEOC and the objecting claimant. The Special Master shall change the "claimant tier" assignment for an objecting claimant only upon finding that EEOC's initial tier assignment for such person constituted a gross deviation from EEOC's application of the provisions contained in paragraphs 20 - 24, above.
32. Notification of Final Distribution Amount and Release of Claims. Within twenty-one (21) days after receiving notification of the Special Master's final determinations for all
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claimants who submitted objections, the EEOC shall mail to each Eligible Claimant a letter notifying her ofthe amount of the payment to which such Eligible Claimant was finally determined to be entitled (hereinafter, the "Final Settlement Amount"), and further notifying each Eligible Claimant that in order to receive any monetary payments under this Decree, she must execute and deliver to EEOC a Release (a copy of which is attached hereto as Exhibit A). The letter will inform each Eligible Claimant that such Release must be signed and returned to EEOC so that it is actually received by EEOC no later than thirty (30) days after the date on which EEOC mailed the Releases to such individuals.
33. ANY ELIGIBLE CLAIMANT WHOSE EXECUTED RELEASE IS NOT ACTUALLY RECEIVED BY EEOC WITHIN THIRTY (30) DAYS AFTER THE DATE EEOC MAILED SUCH RELEASE TO SUCH ELIGIBLE CLAIMANT WILL BE INELIGIBLE FOR AND FOREVER BARRED FROM RECEIVING ANY MONETARY RELIEF UNDER THIS DECREE.
34. Court Approval of Final Distribution Amounts. Within fourteen (14) days after the time provided for returning Releases to EEOC has expired, EEOC shall file with the Court a motion for the Court's approval of the allocation of the Settlement Fund among Eligible Claimants as determined by EEOC (or, where applicable, the Special Master). In connection with this motion, EEOC shall file, under seal, a final settlement distribution list which shall contain the name, address and Final Settlement Amount for each Eligible Claimant, as well as a copy of the Release signed by each Eligible Claimant.
35. Within fourteen (14) days after the Court's approval of the allocation of the Settlement Fund among Eligible Claimants: (a) EEOC shall provide the original signed releases to Dial's counsel and (b) the Payment Agent shall draw on the Settlement Fund checks in the amounts approved by the Court, and shall mail such checks to the addresses provided by EEOC for the Eligible Claimants. Simultaneously, the Payment Agent shall send to the EEOC a listing of each payee's name and the check amount. The Payment Agent shall promptly notify EEOC in writing of any checks that are returned or are not cashed after a period ofthirty (30) days has elapsed from the date on which the settlement checks were mailed by the Payment Agent. EEOC may take, at EEOC's expense, further steps to reach those Eligible Claimants who did not receive and/or deposit their settlement checks. In the event that any portion of the Settlement Fund, including accrued interest, has not been distributed as required by this Decree after a period of three hundred (300) days has elapsed from the date on which the settlement checks were mailed by the Payment Agent, then such remaining amounts from the Settlement Fund shall be paid, at the direction of the EEOC, subject to such further orders as the Court may deem appropriate, for the benefit of women's workplace interests at the Montgomery, Illinois plant, provided, however, that in no event shall there be any reversion of any part of the Settlement Fund to Dial. In the event Dial objects to an EEOC proposal with respect to the proposed distribution for the benefit of women's workplace interests at the Montgomery, Illinois plant, then Dial may file an objection to the distribution with the Court.
36. All costs associated with the distribution of the Settlement Fund to Eligible Claimants shall be paid by Dial, including without limitation, all costs associated with the creation of the Settlement Fund, all costs related to the issuance and mailing of checks from the Settlement Fund, and all costs relating to the Special Master; except, however, that in the event that the total
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costs relating to the Special Master exceed $25,000.00, such excess amount shall be paid out of the interest from the Settlement Fund. If the total excess amount of the Special Master's costs exceeds the total amount of interest from the Settlement Fund, Dial shall be responsible for any remainder amount of costs owed to the Special Master. Under no circumstances is Dial to use the principal or interest from the Settlement Fund to pay any costs associated with the distribution of the Settlement Fund other than costs relating to the Special Master as is specified in this paragraph.
37. All amounts distributed from the Settlement Fund constitute compensatory damages, under the Civil Rights Act of 1991,42 U.S.C. § 1981a and related state law causes of action. No payment made pursuant to this Decree shall constitute or be considered to be back-pay.
Non-Monetary Relief
38. Dial affirms the following "Statement oflntolerance of Sexual Harassment":
The Dial Corporation is firmly committed to, and reaffirms its commitment to maintain a policy of intolerance of sexual harassment and retaliation against individuals who report sexual harassment or retaliation in the company's workplace; to swiftly and firmly respond to any acts of sexual harassment or retaliation of which the company becomes aware; to maintain a disciplinary system that is designed to strongly deter future acts of sexual harassment or retaliation; to eradicate any vestiges of a work environment that is sexually hostile to women; and to monitor its workplace in order to ensure tolerance, respect and dignity for all employees.
This paragraph does not create any contractual causes of action or other rights that would not otherwise exist.
Specific Non-Monetary Relief
39. In order to effectuate the objectives embodied in Dial's Statement oflntolerance of Sexual Harassment and this Decree, Dial shall make whatever specific modifications are necessary to its existing policies, procedures and practices in order to ensure that the following policies, procedures and practices are in effect:
(a) No Harassment Policy. Dial agrees that it shall revise its No Harassment Policy, as necessary, in order to: (i) provide examples to supplement the definitions of sexual harassment; (ii) include strong non-retaliation language with examples to supplement the definition of retaliation, and provide for substantial and progressive discipline for incidents of retaliation; (iii) provide that complaints of sexual harassment andlor retaliation will be accepted by Dial in writing and orally; (iv) provide a timetable for reporting sexual harassment and retaliation, for commencing an investigation after a complaint has been made or received and for remedial action, if any, to be taken upon conclusion of an investigation; and (v) indicate that, promptly upon the conclusion of its investigation of a complaint, Dial will communicate to the complaining party the results ofthe investigation and the remedial actions taken or proposed, if any, so long as the complainant agrees to keep any disciplinary action taken confidential.
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(b) Complaint Procedures. (i) Dial agrees that it shall revise its complaint procedure, as necessary, in order to ensure that it is designed to encourage employees to come forward with complaints about violations of its No Harassment Policy. As part of this policy, Dial agrees that it shall provide its employees with convenient, confidential and reliable mechanisms for reporting incidents of sexual harassment and retaliation. Dial agrees that it shall designate at least two employees from the Human Resources Department as persons who may be contacted, and their names, responsibilities, work locations and telephone numbers shall be routinely and continuously posted. Also as part of its procedure, Dial agrees that it shall keep its 24-hour Complaint hotline in place, and shall take seriously anonymous complaints received on the hotline. Additionally, as part of its complaint procedure, Dial agrees that it shall maintain in the plant the presence of personnel charged with handling complaints of sexual harassment and retaliation.
(ii) Dial agrees that it shall revise its policies as necessary to enable complaining parties to be interviewed by Dial about their complaints in such a manner that permits the complaining party, at such party's election, to provide information in a confidential manner, including providing the complainant with the ability to provide the information outside of the employee's work area. Dial agrees that its complaint procedure shall not impose upon individuals seeking to make a complaint alleging sexual harassment and/or retaliation any requirements that are more burdensome than are imposed upon individuals who make other complaints of comparable gravity.
(iii) Dial agrees that it shall revise its complaint handling and disciplinary procedures as necessary to ensure that all complaints of sexual harassment and/or retaliation are investigated and addressed promptly. Specifically, Dial agrees that it shall make best efforts to investigate all complaints of sexual harassment and/or retaliation promptly and to complete investigations within three (3) weeks. Dial will further make best efforts to prepare its written findings of the results of each investigation and the remedial actions proposed, if any, within seven (7) days after completion of the investigation, and shall thereupon promptly communicate to the complaining party the results of the investigation and the remedial actions taken or proposed, if any, so long as the complainant agrees to keep any disciplinary action confidential.
(iv) Dial agrees that it shall, for the duration ofthe Decree, permit individual complainants to appeal Dial's findings and remedial actions proposed or taken to the "Complaint Monitor" (as that term is defined herein), in accordance with the procedures set forth in paragraphs 50 - 55 herein.
(c) Policies Designed To Promote Supervisor Accountability.
(i) Dial agrees that it shall impose discipline -- up to and including termination, suspension without pay, or demotion -- upon any supervisor or manager who engages in sexual harassment or tolerates any such conduct in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding concerning any such conduct. Dial shall communicate this policy to all of its supervisors and managers.
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.'
(ii) Dial agrees that it shall continue to advise all managers and supervisors of their duty to monitor their work areas to ensure employees' compliance with the Company's No Harassment Policy, and to report any incidents and/or complaints of sexual harassment and/or retaliation of which they become aware to the department charged with handling such complaints.
(iii) Dial agrees to use in its supervisor appraisal process, an evaluation ofthe supervisor's handling of equal employment opportunity ("EEO") issues, and to link such evaluations directly to supervisor salary/bonus structure.
(iv) Dial agrees to include "commitment to equal employment opportunity" as a criterion for qualification for supervisory positions.
(d) Sexual Harassment Training.
(i) Dial agrees that it shall continue to provide mandatory annual sexual harassment training at its Montgomery, Illinois facility to all supervisors; to provide mandatory sexual harassment training to all new employees at its Montgomery, Illinois facility during employee orientation; to provide mandatory sexual harassment training to all senior management officials at its Montgomery, Illinois facility; to provide mandatory sexual harassment training for all employees of The Dial Corporation who are assigned to work at Dial's facility in Montgomery, Illinois, prior to their commencing employment at Dial's facility in Montgomery, Illinois; and to provide training to all persons at its Montgomery, Illinois facility charged with the handling of complaints of sexual harassment and/or retaliation related thereto conducted by experienced sexual harassment educators and/or investigators to educate them about the problems of sexual harassment in the workplace and the techniques for investigating and responding to the complaints. The sexual harassment training programs described in this paragraph will include training regarding Dial's policy against retaliation.
(ii) Dial agrees that it shall have a senior management official introduce all sexual harassment training to communicate Dial's commitment to its Statement ofIntolerance of Sexual Harassment.
(e) Consent Decree Monitors. In accordance with paragraphs 40 and 42 of this Decree, Dial and EEOC shall appoint Consent Decree Monitors who will have broad powers to effectuate the purposes of this Decree.
(I) Complaint Monitor. In accordance with paragraph 50 of this Decree, Dial shall modify its complaint procedures to provide for the appointment of one Complaint Monitor who will, for the duration ofthis Decree, have the responsibility for periodically reviewing complaints of sexual harassment/retaliation and investigations of same, and for resolving any appeals filed by an employee relating to Dial's investigation and resolution of complaints involving allegations of violations of Dial's No Harassment Policy.
12
eH2 20138478.1

Creation and Function of Consent Decree Monitors
40. Immediately upon entry of this Decree, Dial and EEOC will establish a panel of Independent Consent Decree Monitors (the "Decree Monitors") to oversee the implementation by Dial of the terms ofthis Decree.
41. The Decree Monitors will have authority, for the entire term of the Decree, under Court supervision, to review, assess, and provide recommended changes to policies, procedures and practices that should be maintained, developed, modified or implemented to meet the nonmonetary relief objectives of this Decree.
42. The panel of Decree Monitors will consist of three persons: one Dial appointee, one EEOC appointee, and one appointee agreed to by the parties who will serve as chairperson. Within twenty one (21) days ofthe entry of this Consent Decree, Dial shall appoint one appointee and provide that person's name to the EEOC and the Court. EEOC's appointee shall be Nancy B. Kreiter. Within thirty (30) days of the entry of this Consent Decree, the parties shall agree upon a Chairperson, whose name shall be provided to the Court. In the event a Decree Monitor is unable or unwilling to continue to serve throughout the term of this Consent Decree, the appropriate designating party or the parties jointly, as applicable, shall have the authority to replace that member, subject to Court approval. If the Chairperson is unwilling or unable to continue as Chairperson, the parties shall jointly select a new Chairperson subject to court approval.
43. The panel of Decree Monitors will operate as a team and will work together in their oversight of the implementation of this Decree. The Decree Monitors will attempt to reach consensus on all recommendations; provided, however, that if they are unable to reach unanimity as to a specific recommendation, a majority shall prevail.
44. Within two (2) months after the appointment of the Decree Monitors, they will: (i) evaluate all existing employment policies, procedures and practices that are related to the objectives contained in the Statement of Intolerance of Sexual Harassment and this Decree; and (ii) after consultation with EEOC and Dial, make recommendations for any changes to such existing policies, procedures and practices that the Decree Monitors believe is necessary or appropriate. The Decree Monitors shall report their findings and recommendations to EEOC and Dial.
45. Dial shall implement each recommendation of the Decree Monitors unless, within twenty-one (21) business days after receiving a recommendation, Dial files an objection with EEOC that the Decree Monitors' recommendation, in whole or in part, involves the application of unsound business judgment or is technically not feasible. The parties will then have thirty (30) business days within which to try to resolve the objection. If they are unable to do so, Dial shall then have seven (7) business days within which to file an objection with the Court.
46. In the event that Dial files with the Court an objection to any of the Decree Monitors' recommendations, EEOC will participate in the proceedings with the Court.
13
CH2 20 138478.1

47. Within one (I) year after appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices, and shall submit a written report to EEOC, Dial and the Court setting forth the following information:
(i) an assessment of whether Dial has successfully implemented each specific policy/practice agreed upon in paragraph 39 above;
(ii) for each specific policy/practice that has not been successfully implemented, a statement discussing the reason for Dial's failure to implement such change;
(iii) an evaluation ofthe impact ofthe specific changes made pursuant to this Decree;
(iv) an assessment of the effectiveness of Dial's policies and practices for achievement of Dial's Statement ofIntolerance of Sexual Harassment;
(v) recommendations for any changes to existing practices, policies or programs or any additional policies, practices or programs that the Decree Monitors deem necessary or appropriate for achieving Dial's Statement of Intolerance of Sexual Harassment and the terms of this Decree; and
(vi) timetables for implementation and completion of compliance with any of the recommendations, subject to the terms of this Decree.
At the end of the second year and then again at the end of the duration of this Consent Decree, the Decree Monitors shall submit a report to EEOC, Dial and the Court setting forth the same information described herein.
48. Dial shall implement each recommendation of the Decree Monitors except as in accordance with the provisions for making objections set forth in paragraphs 45 - 46 of this Decree.
49. Dial shall cooperate with the Decree Monitors in connection with their efforts to oversee and monitor the implementation ofthe non-monetary relief objectives of the Decree, including providing reasonable access to all relevant documents and other sources of information, in whatever form they are maintained in the ordinary course of business, necessary or appropriate to the exercise of his/her authority. The Decree Monitors shall make best efforts to minimize the disruption to the workplace during the course of their oversight. Nothing in this Decree shall confer on the Decree Monitors the power to require the disbandment or reorganization of any Department at Dial. Given the need of the Decree Monitors to review confidential business information of Dial, the Decree Monitors will sign a confidentiality agreement.
50. Dial shall be responsible for the implementation of all non-monetary relief under the terms of this Decree, except as otherwise provided herein. Dial shall not be precluded from developing and implementing its own programs as it may find appropriate. In formulating their determinations and recommendations, the Decree Monitors will take such programs into account.
14
CH220138478.1

51. Dial shall compensate the Decree Monitors, at their customary rate or upon other terms acceptable to Dial, the Decree Monitors and EEOC. Dial shall pay any and all reasonable costs necessary to fulfill the work of the Decree Monitors.
Monitoring of Complaints
52. In addition to the functions and purposes described above, the Chairperson of the Decree Monitors shall be designated as the Complaint Monitor ("Complaint Monitor"). The Complaint Monitor shall have the responsibility for periodically reviewing complaints of sexual harassment/retaliation and investigations of same, and for resolving any appeals filed by an employee relating to Dial's investigation and resolution of complaints involving allegations of violations of Dial's No Harassment Policy.
53. Upon completion of an investigation and completion of a report, Dial shall inform the complaining party ofhis/her right to appeal Dial's finding to the Complaint Monitor. Dial shall inform the complaining employee, in writing, of the appointment and function ofthe Complaint Monitor, including the name, telephone number and address at which the Complaint Monitor may be reached, and shall inform the complainant of his/her right to contact the Complaint Monitor and to appeal Dial's findings to the Complaint Monitor.
54. If an appeal is filed, Dial shall promptly prepare and provide the Complaint Monitor with a copy of a written report summarizing the investigation undertaken and any remedial actions taken or proposed by Dial.
55. If, upon receiving and reviewing an appeal from an individual complainant, the Complaint Monitor believes that the remedial action proposed by Dial is inconsistent with the terms of this Decree, the Complaint Monitor shall first attempt to resolve the disagreement with Dial. If Dial and the Complaint Monitor are unable to reach a resolution of their disagreement to the satisfaction of the Complaint Monitor, the Complaint Monitor shall report to EEOC any such inconsistency.
56. Nothing in this Decree vitiates the right of employees or their union to file grievances under the collective bargaining agreement, including but not limited to matters related to alleged sexual harassmentlretaliation or alleged improper disciplinary actions. In the event any disciplinary action taken by Dial is overturned by an arbitrator as the result of a union grievance, the decision of the arbitrator shall, to the extent required by law, be final and binding. The parties to this Decree recognize that Dial and the union representing Dial's employees have certain obligations under the National Labor Relations Act; this Decree will be administered consistent with federal labor and employment discrimination laws.
57. Except for communicating as may be necessary with Dial and EEOC, the Complaint Monitor shall retain all information supplied by Dial relating to each complaint in strict confidence.
58. Dial shall compensate the Complaint Monitor as set forth in Paragraph 49.
15
CH220138478.1

Posting of Notice
59. Within three (3) weeks after entry of this Decree, Dial shall post notices in prominent and conspicuous locations throughout the plant, in the form of Exhibit B. The notice shall remain posted for the duration of this Decree. The notice shall include the appointment and function of the Complaint Monitor. In the event there is a change with the persons andlor departments to whom individuals should make complaints during the term of the Decree, Dial shall immediately notify EEOC, who shall then prepare and deliver to Dial a new notice that contains the correct information. Dial shall thereupon promptly replace the old notices with the revised notices.
60. Dial shall provide a copy of the Decree to any employee who requests one.
Dispute Resolution
61. In the event that either party to this Decree believes that the other party has failed to comply with any provision(s) of the Decree, the complaining party shall notify the alleged noncomplying party in writing of such non-compliance and afford the alleged non-complying party ten (10) business days to remedy the non-compliance or satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance or satisfIed the complaining party that it has complied within ten (10) business days, the complaining party may apply to the Court for appropriate relief. In the event that, upon the expiration date of this Decree, a dispute is pending pursuant to this paragraph, then the term of this Decree shall be extended, with respect to the issue in dispute only, until such time as such dispute is resolved by the Parties or the Court.
Enforcement of Decree
62. EEOC and Dial will make best efforts to effectuate the terms of this Decree.
63. EEOC, Dial and the Chairperson of the Decree Monitors shall each have independent authority to seek the judicial enforcement of any aspect, term or provision of this Decree and may take appropriate measures to effectuate enforcement of this Settlement Agreement and any of its terms or provisions.
64. Eligible Claimants shall not have an independent right to enforce any of the terms of this Decree.
65. In the event of a party seeking judicial enforcement of the Decree, the Court shall have the authority to resolve that dispute consistent with the terms of this Decree.
66. Nothing in this Decree is intended to confer upon any person other than EEOC, Dial and the Chairperson of the Decree Monitors the right to seek enforcement of this Consent Decree or of any ofthe terms contained herein.
Confidentiality
67. The Parties shall keep confidential the names of all Eligible Claimants and the Distribution Amounts that each received.
16
CH220138478.1

68. Dial agrees to pay all costs associated with the administration ofthis Decree, except as is specifically provided otherwise in this Decree.
69. Each Party shall bear its own costs and attorneys' fees associated with this litigation, including an equal sharing of the jury costs pursuant to LR 54.2, which total $1550.00, and neither Party shall seek reimbursement for any outstanding litigation costs.
Other General Provisions
70. Computation of Time Periods. In computing any period of time prescribed or allowed by this Decree, unless otherwise stated, such computation shall be made consistent with the Federal Rules of Civil Procedure.
71. Counterparts. This Decree may be executed in one or more counterparts, and each executed copy shall be deemed an original which shall be binding upon all parties hereto.
72. Persons Bound By Decree. The terms ofthis Consent Decree are and shall be binding upon the Parties.
73. Dial Not Required to Violate Existing Law. Dial is not required by this Consent Decree to violate any applicable law, order, ordinance, or regulation as interpreted by controlling judicial authority. This paragraph applies to final decisions of all Federal and State courts and agencies with jurisdiction over Dial and to all court orders naming Dial. In the event of any conflict between federal law and state law, federal law shall govern.
74. Notices. Except as is otherwise provided for in this Decree, all notifications, reports and communications to the Parties required under this Decree shall be made in writing and shall be sufficient as faxed, e-mailed, hand-delivered or sent by first class mail to the following persons:
For EEOC:
John C. Hendrickson, Esq. Regional Attorney EEOC 500 W. Madison S1., Suite 2800 Chicago, Illinois 60661
For Dial:
M. Margaret Banas, Esq. Vice President, Senior LaborlEmployment Counsel The Dial Corporation 15501 North Dial Boulevard Scottsdale, Arizona 85260
17
CH220138478.1

: 04/29/2003 12:32

US DIST. ~

JUDGE WARREN URBOM

II :53.. From-Soyfarth . ,

+3123418000

NO. 56? Gl02 T-491 P.019/021 F-9S3

Any party m~y change sllch addresses by written nol.ice to the other parties, setting folth a new address for this purpose. NotwithstillldiDg the provisions fbT notification contained in ~bis
paragraph., the Parties may send eauh other such notifications, reports and communications by
facsilcile trl\l1smission.
75. ConSD'uctiolJ, The terms ofthi~ Decree ar~ (he product ofjoiDt n6gotiatiotls and shllli not be construed as baving been authored by one party ralber than another.
76. lnteg1'ation. This Decree constitutes the ~tirt agreement between Dilll and EEOC bereto with respect to the matters herein and it supersedes all nldgotiations, representations, commen~,
cOIlU'llctS, and writmgs priona \he date oftbis Con~ent Decree. '. DECREED this 29th day of Apri~ 2003.
United SIa.tcS Pistrict Co n Iud e Warrell K. Urbom

18

Apr-IS-OS OS: lZpm From-LEGAL /',
~~Na-o 1\ :20am from-S6yfarth sh.

3113538555
T"I'Q'tuU .....w

r-S84 P.OOI/002 F-Sl1

19
CllllO\3S47S.l

Agreed to in form and content: FOR THE DEFENDANT, THE DIAL CORPORATION:
Trial Attorney
SEYFARTH SHAW 55 East Monroe Suite 4400 Chicago, Illinois 60603 (312) 346-8000 Dated: 4/29/03
20 em 20 138478.1

RELEASE OF CLAIMS
EEOC v. Dial, 99 C 3356 (N.D. III.)
I. RELEASE. In consideration for the sum (the "Final Settlement Amount") paid to me by The Dial Corporation, ("Dial"), pursuant to the terms of the consent decree (the "Consent Decree") entered by the Court in Equal Employment Opportunity Commission v. The Dial Corporation", Civil Action No. 99 C 3356 (N.D. I11.), I hereby release and forever discharge Dial, its successors, assigns, directors, officers, agents, representatives, and employees from all claims, demands, causes of action or liabilities which I now have or have had against Dial arising under or related to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §2000e et seq. ("Title VII"), Pregnancy Discrimination Act, 42 U.S.c. ,§2000e(k), Equal Pay Act of 1963,29 U.S.C. §201 et seq. and related state law claims, including any Title VII claims asserted in any pending Charge of Discrimination, provided, however, that this Release shall not operate to release, waive, or otherwise inhibit the right of EEOC to enforce the terms and conditions ofthe Consent Decree, including, without limitation, the obligation of Dial to make payments to me pursuant to the terms of the Consent Decree; and, further provided, that nothing in this Release shall be construed as a waiver of any rights or claims I may have arising after the date of the entry of the Consent Decree or for any claims, demands, causes of action or liabilities that I now have or have had against Dial that are not described above.
2. COVENANT NOT TO SUE. In exchange for the promises made by Dial in the Consent Decree, I agree never to institute or be voluntarily joined as a party to any suit against Dial on any grounds covered by the release set forth in paragraph I.
3. TAXES ON FINAL SETTLEMENT AMOUNT. I understand that the Final Settlement Amount is for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and non-pecuniary losses rather than for back pay. I further understand that Dial will report the Final Settlement Amount to the Internal Revenue Service on a Form 1099.
I acknowledge that the Final Settlement Amount may be subject, in whole or in part, to federal and state income taxation. I understand that I am solely responsible for any tax payments which may be required under the law in connection with the payment.
4. NO WAIVER OF FUTURE CLAIMS. I do not waive any rights or claims that may accrue after the date that I sign this Release.

CHll0518055.1/99999-000510

EXHIBIT A

Release o/Claims EEOC v. Dial, 99 C 3356
Page 2 THIS IS A RELEASE; READ BEFORE SIGNING

I,

, expressly warrant and represent that:

(a) I have carefully read the terms of this Release and am fully aware of its contents and legal effects; and

(b) I execute this Release voluntarily, knowingly and willingly.

Executed on this _ _ _ _ day of _ _ _ _ _ _ _---', 2003.

Name of Claimant

Printed Name of Claimant

CHI 10518055.1/99999-000510

EXHIBIT A

The Dial Corporation
NOTICE TO ALL EMPLOYEES POSTED PURSUANT TO A VOLUNTARY CONSENT DECREE
This notice has been posted pursuant to the voluntary agreement of the parties and an Order of the Court, approving the Consent Decree entered in resolution ofa lawsuit brought by the U.S. Equal Employment Opportunity Commission ("EEOC") against The Dial Corporation ("Dial") on May 20, 1999 in the Federal District Court for the Northern District of Illinois. The Consent Decree resolves EEOC's claims of sexual harassment against Dial and enjoins Dial from certain conduct prohibited by law.
F ederallaw and the Consent Decree prohibit sexual harassment and sex-based harassment or other discrimination against any individual because of his or her sex.
Federal law also prohibits retaliation against any individual by an employer because the individual complains of discrimination, cooperates with any Dial or government investigation of a charge of discrimination, participates as a witness or potential witness in any investigation or legal proceeding, or otherwise exercises his or her rights under law.
Any employee who is found to have retaliated against any other employee because such employee participated in this lawsuit will be subject to progressive discipline, up to and including discharge.
Should you have any complaints of discrimination, you should contact [TO BE INSERTED CONSISTENT WITH DIAL'S POLICY]. You may call Dial's Employee Hotline 24 hours per day, seven days per week at the following toll-free telephone number: 1-888-662-7878. If covered by a collective bargaining agreement, you may also file a grievance.
Pursuant to the Consent Decree, and for the duration of the Consent Decree, Dial will permit individuals who complain about sexual harassment to appeal Dial's findings and remedial actions to a "Complaint Monitor."
Copies of the Consent Decree may be obtained through the Human Resources Department.
Employees have the right to bring complaints of discrimination, including sexual harassment, to the United States Equal Employment Opportunity Commission, Chicago District Office at 500 West Madison Street, Suite 2800, Chicago, Illinois 60661, (312) 353-2713, or the Illinois Department of Human Rights, 100 W. Randolph, 10th Floor, Chicago, IL 60601, (312) 814-6245

This is an official notice and shall not be defaced by anyone. This notice shall remain

prominently posted in the front lobby and other prominent locations throughout the plant

until

• This Official Notice shall not be altered, defaced, covered or

obstructed by any other material.

CHlIOS17987.1/99999-000S10

EXHffiITB

 
 JUDGE DECIDES MAJOR PUNITIVE DAMAGES ISSUE IN FAVOR OF EEOC IN D... Page 1 of 2

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE FEBRUARY 13, 2003

CONTACT: NOELLE BRENNAN Supervisory Trial Attorney (312) 353-7582 JOHN C. HENDRICKSON Regional Attorney (312) 353-8551
TTY: (312) 353-2421

JUDGE DECIDES MAJOR PUNITIVE DAMAGES ISSUE IN FAVOR OF EEOC IN
DIAL SEXUAL HARASSMENT SUIT

Trial Set for April 28 in Biggest Sex Harassment Suit Since Landmark Mitsubishi Case
CHICAGO - Federal District Judge Warren K. Urbom has dealt The Dial Corporation another defeat in its continuing effort to fragment and limit relief to a large class of sexual harassment victims at its Aurora, Illinois, plant, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. The Judge this afternoon issued a critical decision in the EEOC's sexual harassment class case against The Dial Corporation, the federal agency's biggest sexual harassment litigation since its landmark $34 million settlement with Mitsubishi Motor Manufacturing of America in 1998.
The judge's ruling provides for a single jury to decide in the first phases of the upcoming trial whether Dial shall be required to pay punitive damages to the class of victims as a whole (EEOC v. The Dial Corporation, N.D. Illinois No. 99 C 3356). In so doing, the Court adopted the approach urged by the EEOC and rejected a Dial motion which sought to have awards of punitive damagesdecided on an individualized basis in separate proceedings by jurors who would not have heard all of the evidence as to Dial's pattern or practice of tolerating sexual harassment.
In his opinion, Judge Urbom wrote: "I am persuaded that awarding one punitive award to the class is the best way to go. Expecting several separate juries to determine with reason separate and individual amounts with the purpose of punishment of the defendant and deterrence of the defendant and others from such pattern and practice in the future is unrealistic at best."
John C. Hendrickson, EEOC Regional Attorney in Chicago, said: "This decision is of enormous importance not only in our Dial case but in all sexual harassment cases in which there are numerous victims of an employer's sexually hostile and abusive work environment."
Hendrickson continued: "It means that the jury which hears the most egregious evidence of the worst harassment occurring ona repeated basis will be the one making the decision on awarding punitive damages and that the jury will be making an award to the class as a whole.
"The approach sought by Dial was to divorce punitive damages from evidence of broad patterns of harassment and to fragment the issue into dozens and dozens of individualized assessments. That has been flatly rejected by the Court. It can only be described as a huge victory for the EEOC and for the victims of harassment."
EEOC Supervisory Trial Attorney Noelle Brennan said that if there were an award of punitive damages

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JUDGE DECIDES MAJOR PUNITIVE DAMAGES ISSUE IN FAVOR OF EEOC IN D... Page 2 of 2
to the class, the court would apportion that award among individual victims at a later stage of the proceedings. "Punitive damages are supposed to focus on the misconduct of the employer and to educate other employers about avoiding discrimination. The process by which they are awarded should be appropriate to the case. That has been our position from the start and we are happy to see it vindicated," she said.
Brennan continued, "EEOC is looking forward to the trial of this case against Dial beginning on April 28. The pieces are all in place to assure, finally, that the victims of the long- term pattern of harassment at the company's Aurora facility have a fair opportunity to receive appropriate relief, including punitive damages."
EEOC is the federal agency charged with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, as amended, which prohibits employment discrimination based on race, color, religion, sex, pregnancy or national origin. The EEOC is also responsible for enforcing the Age Discrimination in Employment Act of 1967, as amended; the Equal Pay Act of 1963; and the Americans with Disabilities Act of 1990, which prohibits discrimination based on disability. More information about the EEOC and the laws it enforces can also be found at http://www.eeoc.gov.
This page was last modified on February 13, 2003.
Return to Home Page

http://www.eeoc.gov/press/2-13-03.html

5/17/2007

 
 JUDGE IN DIAL SEXUAL HARASSMENT CASE DENIES SOAP MAKER'S 'EVE O... Page 1 of 3

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE APRIL 24, 2003

CONTACT: John C. Hendrickson EEOC Regional Attorney (312) 353-8551 Noelle Brennan EEOC Supervisory Trial Attorney (312) 353-7582 John Knight EEOC Trial Attorney (312) 353-7726
TTY: (312) 353-2421

JUDGE IN DIAL SEXUAL HARASSMENT CASE DENIES SOAP MAKER'S 'EVE OF TRIAL' BID ON PUNITIVE DAMAGES ISSUE

Trial Begins Monday; Jury To Determine Punitive Damages On Class Basis As Sought By EEOC
CHICAGO - The U.S. Equal Employment Opportunity Commission (EEOC) has received an Order from Senior District Judge Warren K. Urbom denying The Dial Corporation's request that the Court reconsider and reverse a February 14, 2003, Order providing for the jury in the EEOC's sexual harassment case against Dial to determine punitive damages on a class-wide basis at the end of the opening "pattern or practice" phase of the trial (4/22/03 Memorandum and Order, EEOC v. The Dial Corporation, N.D. Illinois No. 99 C 3356).
The federal court jury trial in the EEOC class case challenging a pattern or practice of sexual harassment of female employees at Dial's facility in suburban Aurora, Illinois, begins Monday in Chicago. Dial is the internationally known soap manufacturer associated for years with the slogan "Aren't you glad you use Dial? Don't you wish everybody did?" The Aurora plant is the United States facility for manufacturing bar soaps bearing the company's flagship "Dial" brand, and other brands including "Coast," "Tone," and "Pure & Natural."
Punitive damages, according to EEOC, are money damages awarded to victims of misconduct not to compensate the victim for the harm suffered but, rather, to punish the wrong-doer for reprehensible conduct and to deter the wrong-doer and others from engaging in such conduct in the future.
In its motion, Dial had relied upon the recent decision of the United States Supreme Court in State Farm Mutual Automobile Insurance Co. v. Campbell to argue that punitive damages could only be awarded on an individualized basis in a later stage of the case and not in an aggregate amount to the entire class of victims of the claimed pattern of harassment.
In denying Dial's contention, Judge Urbom wrote that the original jury empaneled in the case will render its decisions in two phases:
"Phase I should result in a finding by the jury of whether and when a pattern or practice of tolerating sexual harassment existed. * * * Phase II, if Phase I ends in [EEOC's] favor, would end with a verdict of whether the pattern or practice was done with malice or reckless indifference to the federally protected rights of class members, including an amount to be awarded to the aggrieved persons of the

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class. * * * In Phase II . . . the remaining question for this jury is to determine what amount, if any, is needed for purposes of punishment and deterrence of [Dial] and others."
Judge Urbom said that additional juries in later separate "Phase III" proceedings may also make individualized findings as to both compensatory and punitive damages and "this means there may be jury findings of amounts of punitive damages in both Phase II and Phase III [and that] Phase IV may consist of the judge's deciding what distribution should be made of punitive damages guided by both the verdicts in Phase II and Phase III."
In an August 9, 2001, decision denying Dial's Motion for Summary Judgement - that is, denying Dial's effort to have the case decided in its favor without a trial - Judge Urbom wrote:
"Taking the EEOC's version of the facts as true, it appears that the work environment at Dial was sexually charged in a way that was offensive and demeaning to women. Several women testified that they were subjected to physically-invasive behavior by male employees. This alleged behavior ranged in severity from men touching women's breasts and buttocks to an incident where a male co-worker grabbed a class member by the crotch and jerked upward. In addition, male employees allegedly exposed themselves to their female co-workers or touched their genitals while making suggestive or threatening remarks. Dozens of women also indicated that they were the targets of repeated comments and conduct of a sexual nature. Finally, many women testified as to open displays of sexually offensive materials in the workplace, including pornographic magazines, pornographic calendars, pictures of nude women, pictures of scantily-clad women, and sexual cartoons."
"I have already concluded that the EEOC has presented sufficient evidence for a reasonable jury to find that Dial either knew or should have known of a plant-wide sexual harassment problem. I have also determined that there is little, if any, evidence demonstrating that Dial took steps to determine whether individual incidents, which occurred frequently and continuously, were indicative of a larger problem requiring a company-wide response. In light of these conclusions, I am not persuaded that Dial's efforts to prevent harassment on a plant-wide basis were reasonable as a matter of law." 8/9/2001 Memorandum & Order, EEOC v. The Dial Corporation, N.D. Illinois No. 99 C 3356, at pages 23-24, 30 (internal punctuation, citations omitted).
With respect to this week's Order, EEOC's Regional Attorney in Chicago, John Hendrickson, said, "EEOC has always sought two things in this case: An open and visible jury trial of the issues - sunlight continues to be the best disinfectant - and a trial process assuring that the determination of punitive damages is inextricably tied to the broadest possible record of evidence."
Hendrickson continued, "For EEOC, that has meant that the same jury which hears the full body of evidence regarding Dial's pattern and practice of sexual harassment - if it finds that Dial is liable should also render a verdict on the issue of punitive damages due the victim class as a whole. That was the process the Court adopted in its February 14 decision Accordingly, EEOC welcomes Judge Urbom's decision not to reverse himself on this issue, as well as his further refinement of the punitive damages procedures for trial."
Noelle Brennan, the EEOC Supervisory Trial Attorney leading the government litigation effort at trial, added, "This important decision clears away the last significant procedural hurdle before trial. EEOC is ready to go. The women who work and have worked at Dial and who have waited for their day in court are ready to go. Judge Urbom's decision sets the stage for what we believe will be a complete and fair public airing of the issue of sexual harassment at Dial in the most appropriate place of all, a court of law, in which all sides, including Dial, will have the chance to present their case directly to the jury."
The trial of the case will begin with jury selection and, possibly, opening statements this Monday, April 28, 2003, at 9:00 a.m., in Courtroom 1725 of the Dirksen Federal Court Building at 219 South Dearborn Street in Chicago's Loop. The litigation is the largest class sexual harassment case brought by EEOC since the Mitsubishi case which was ultimately resolved by a Consent Decree

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providing for the distribution of $34 million to 486 female employees and former employees of Mitsubishi's automobile assembly plant in "downstate" Bloomington-Normal, Illinois.
John Hendrickson, Noelle Brennan, and EEOC Chicago District Office Trial Attorney John Knight will conduct the trial of the Dial case before Judge Urbom. The litigation follows an administrative investigation of a 1996 charge of discrimination filed against Dial with the EEOC in Chicago, and an administrative finding by the agency's District Director in Chicago, John P. Rowe, that there was "reasonable cause" to believe that Dial had violated Title VII of the Civil Rights Act of 1964 by sexual harassment of its female employees. After EEOC's efforts to voluntarily conciliate the matter with the company proved futile, the lawsuit was filed May 20, 1999. The agency's investigation and conciliation efforts were overseen by District Director Rowe. Hendrickson, Brennan and Rowe are all veterans of the Mitsubishi case.
Dial's corporate headquarters are located in Scottsdale, Arizona. On its internet web-site (www.dialcorp.com), the company describes itself as a $1.3 billion corporation with 2,300 employees worldwide. The web-site has also stated that "over 1 million Dial bars are sold in the U.S. every day."
In an April 8, 2003 presentation to the Bank of America Securities 4th Annual Consumer Conference, Herb Baum, the President, Chairman, and Chief Executive Officer of Dial, said that "Dial is sitting with a lot of cash." Baum stated that Dial ended the year 2002 with $220,000,000 in cash and expected to add another $100,000,000 in cash during the year 2003.
Dial is represented by the Seyfarth Shaw law firm in Chicago.
EEOC is the federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964, as amended, which prohibits employment discrimination based on sex (including sexual harassment), race, religion, color or national origin. The EEOC is also responsible for enforcing the Age Discrimination in Employment Act of 1967, as amended; the Equal Pay Act of 1963, and Title I of the Americans with Disabilities Act. Further information about the Commission is available on the agency's web site at www.eeoc.gov.
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The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE APRIL 29, 2003

Contact for EEOC: John C. Hendrickson EEOC Regional Attorney (312) 353-8551

Noelle Brennan Supervisory Trial Attorney (312) 353-7582

John Knight Trial Attorney (312) 353-7726 TTY: (312) 353-2421

Contact for Dial:

Cindy Demers V-P Corporate Affairs & Government Relations The Dial Corporation (480) 754-4090

Camille A. Olson Partner, Seyfarth Shaw Dial Trial Attorney (312) 269-8831

Judge Grants EEOC's and Dial's Request to Enter Joint Consent Decree in Harassment
Case
Federal Agency and Dial Announce Settlement
CHICAGO - The U.S. Equal Employment Opportunity Commission (EEOC) and The Dial Corporation (Dial) announce that they have agreed to resolve the claims brought by the EEOC alleging sexual harassment at Dial's Montgomery, Illinois, facility. The parties have reached a settlement that involves payment by Dial of $10 million pursuant to a Consent Decree entered today by the Court to resolve the case (EEOC v. The Dial Corporation, N.D. Illinois No. 99 C 3356).
EEOC's Regional Attorney in Chicago, John Hendrickson, said, "EEOC believes that the agreement reached in this case is in the best interests of both the Dial family employer and employees and the public. We are heartened by Dial's determination to resolve the litigation and to move ahead in providing a work environment that is safe and free of harassment. We are pleased to have worked with Dial to put together a Consent Decree which will meet the needs and aspirations of the parties and the Court."
Christopher J. Littlefield, Dial's Senior Vice President and General Counsel, said, "Today's announcement closes the door on this lawsuit, and we have agreed with the EEOC to put the past

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behind us. Instead of looking backward, we have made a business decision to move forward with our commitment to the moral and business importance of providing equal opportunity and a positive work environment for all of our employees. Simply put, Dial does not tolerate harassment of any kind. It is directly contrary to our No Harassment Policy, as well as our Cultural Contract and Code of Ethics and Business Responsibilities that guide our decisions and actions every day."
In addition to monetary relief, the parties have mutually agreed upon revisions to be made to Dial's existing policies and procedures that prohibit sexual harassment at the Montgomery, Illinois, manufacturing facility. Further, an independent third party will be mutually agreed upon to help resolve any future disagreements over the resolution of complaints at the Montgomery, Illinois, manufacturing facility.
Dial is represented by Michael Warner, Camille Olson, and Leigh Jeter of the law firm of Seyfarth Shaw in Chicago. EEOC is represented by Regional Attorney John Hendrickson, Supervisory Trial Attorney Noelle Brennan, and Trial Attorney John Knight.
EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment), or national origin, and protects employees who complain about such offenses from retaliation; the Age Discrimination in Employment Act, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector; Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on it's web site at www.eeoc.gov.
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 Monitors Report Consent Decree in Sexual Harassment Case Is Working at Dial

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The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE May 26, 2004

CONTACT: TTY:

JOHN C. HENDRICKSON EEOC Regional Attorney Chicago District Office (312) 353-8551 (312) 353-2421

MONITORS REPORT CONSENT DECREE IN SEXUAL HARASSMENT CASE IS WORKING
AT DIAL

Employees Say Sexual Harassment No Longer Significant Problem at Soap Maker
CHICAGO - The U.S. Equal Employment Opportunity Commission (EEOC) said today that the first annual report of the court-appointed Consent Decree Monitors in The Dial Corporation sexual harassment case has been received by the agency and filed in federal court (EEOC v. The Dial Corporation, N.D. Illinois No. 99 C 3356). According to the EEOC, the Monitors have reported that: "All evidence available to us shows that sexual harassment and related retaliation are not significant problems in the plant at the present time, and that if incidents do occur and are brought to management's attention, they will be dealt with promptly and appropriately."
The Consent Decree, which was entered by Senior District Judge Warren K. Urbom approximately a year ago, on April 29, 2003, resolved the EEOC's "pattern or practice" sexual harassment case against the soap and consumer products manufacturer's facility in far west-suburban Montgomery, Illinois, near Aurora. The Decree awarded $10 million in damages to approximately 100 women, included injunctions against future discrimination, mandated changes in Dial's handling of sexual harassment issues, and provided for the designation of three outside Consent Decree Monitors to make certain that the company complied with the Decree for a three-year period.
The EEOC Regional Attorney in Chicago, John C. Hendrickson, said that the agency was pleased with the findings of the Monitors reflected in their report. "What we are learning from these cases," Hendrickson said, "is that, after the litigation phase of a big sexual harassment case, a strong Consent Decree combined with expert on-the-ground monitoring can make all the difference in the world for women at work."
"Of course," Hendrickson continued, "to make it work, the management of any company must be dedicated to making the necessary changes and to continuously signaling in ways large and small that employees engage in sexual harassment at their peril. What the Dial Monitors' report tells us is that the necessary changes are being made at Dial and that the employees are understanding the signals. That is good news for everybody."
"What the Monitors' report also tells us," Hendrickson added, "is that sexual harassment was a serious problem at Dial which required attention and correction and that the EEOC's litigation effort was clearly necessary."
The Monitors' report states that: "Although some employees, including women, denied that sexual harassment has ever been a significant problem, a majority, both women and men, told us they did believe that sexual harassment has been a significant problem in the plant in the past," and that "over half the women interviewed claimed to have experienced sexual harassment at some point prior to the

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settlement." According to the Monitors, a "substantial majority of both men and women" said that "there had been [a] change in the environment for women in the plant in recent years." Significant numbers of employees "attributed the improvement to the [EEOC] litigation" and to the current awareness that now "persons who are found to have engaged in sexual harassment can expect to be fired."
The Monitors reported that during the first year under the Decree, Dial had successfully rewritten its previous policy regarding harassment, revised its complaint procedures, and had taken steps to improve supervisory accountability. The Monitors found that, in certain respects, Dial's sexual harassment training program has "gone well beyond" the requirements of the Decree and that the training courses were "well done." Recommendations were made for additional improvements, including "providing refresher training [which] was supported by the vast majority of the employees we interviewed," and the Monitors cautioned that "the generally favorable views employees expressed about the current control of sexual harassment at the plant should not be cause for complacency" because there are men in the plant "who still 'push the envelope' . . . even after the litigation and even after the sexual harassment prevention training."
John P. Rowe, the EEOC District Director in Chicago who oversaw the administrative investigation which led to the agency's lawsuit, said that the EEOC was not surprised that the Monitors found certain areas in which room for improvement remains. "After all," he said, "no one ever expected the Consent Decree would create a perfect world. What we wanted was change, real change."
"The Monitors tell us," Rowe continued, "that sexual harassment and retaliation are not significant problems at the plant at the present time, and that incidents which do occur are dealt with promptly. That means the process is working, that changes are being made, and that Dial's managers and employees are supporting the Consent Decree. We think things are now moving in the right direction."
The Consent Decree Monitors are George F. Galland, Jr., a partner in the Chicago law firm of Miner Barnhill & Galland, P.C.; Nancy B. Kreiter, "of counsel" to Women Employed, the Chicago-based women's rights organization; and Reginald E. Jones, a former Commissioner of the EEOC and now counsel in the Washington, D.C. office of Coudert Brothers, LLP. Galland and Kreiter previously served as court-appointed Consent Decree Monitors in the EEOC v. Mitsubishi sexual harassment case.
The Dial Corporation is the internationally known soap manufacturer associated for years with the slogan, "Aren't you glad you use Dial? Don't you wish everybody did?" The company has thousands of employees worldwide and has reported that over one million bars of Dial soap are sold daily in the United States. Dial's Montgomery, Illinois, plant is the United States facility for manufacturing bar soaps bearing the company's flagship "Dial" brand, and other brands including "Coast," "Tone," and "Pure & Natural."
EEOC is the federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964, as amended, which prohibits employment discrimination based on sex (including sexual harassment), race, religion, color or national origin. The EEOC is also responsible for enforcing the Age Discrimination in Employment Act of 1967, as amended; the Equal Pay Act of 1963; Title I of the Americans with Disabilities Act; and section of the Civil Rights Act of 1991. Further information about the EEOC is available on the agency's website www.eeoc.gov.
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The U.S. Equal Employment Opportunity Commission
ONE-YEAR REPORT OF THE CONSENT DECREE MONITORS TO THE PARTIES AND THE COURT
George F. Galland, Jr. Reginald E. Jones Nancy B. Kreiter
We were appointed as Decree Monitors pursuant to the Consent Decree agreed to between the Equal Employment Opportunity Commission and Dial Corporation in case no. 99-C 3356 in the United States District Court for the Northern District of Illinois. This lawsuit alleged a pattern and practice of sexual harassment of employees at Dial's plant in Montgomery, Illinois, near Aurora.
Paragraph 44 of the Decree provides:
Within two (2) months after the appointment of the Decree Monitors, they will: (i) evaluate all existing employment policies, procedures, and practices that are related to the objectives contained in the Statement of Intolerance of Sexual Harassment and this Decree; and (ii) after consultation with EEOC and Dial, make recommendations for any changes to such existing policies, procedures and practices that the Decree Monitors believe is necessary or appropriate. The Decree Monitors shall report their findings and recommendations to EEOC and Dial.
On August 29, 2003, we issued to Dial and to the EEOC the Two Month Report required by paragraph 44. The present report will refer to findings from that Two Month Report as appropriate.
Paragraph 47 of the Decree provides:
Within one (1) year after appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices, and shall submit a written report to EEOC, Dial and the Court setting forth the following information:
i. an assessment of whether Dial has successfully implemented each specific policy/practice agreed upon in paragraph 39 above;
ii. for each specific policy/practice that has not been successfully implemented, a statement discussing the reason for Dial's failure to implement such change;
iii. an evaluation of the impact of the specific changes made pursuant to this Decree;
iv. an assessment of the effectiveness of Dial's policies and practices for the achievement of Dial's Statement of Intolerance of Sexual Harassment;
v. recommendations for any changes to existing practices, policies or programs or any additional policies, practices or programs that the Decree Monitors deem necessary or appropriate for achieving Dial's Statement of Intolerance of Sexual Harassment and the terms of this Decree; and
vi. timetables for implementation and completion of compliance with any of the recommendations, subject to the terms of this Decree.
To prepare for this One Year Report, we maintained contact with Dial throughout the year. We asked for and received material on a number of subjects. On March 24, 29, and 30, 2004, we interviewed 75 employees at the Montgomery plant. We randomly selected employees for interview. Those chosen included both hourly and salaried employees; employees on all three shifts; employees from all areas

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of the plant; both men and women (although, since the lawsuit was brought on behalf of women, we interviewed many more women than men); and supervisors and nonsupervisors. In addition to our random selection of employees, we offered all employees the opportunity to request an interview and we took steps to assure that those who requested it were not identified to Dial management. Five employees requested interviews. We assured all employees that the interviews were confidential. In general, we believe employees spoke candidly and freely to us.
As a result of these activities, we feel confident that we can make valid judgments about the state of Dial's compliance with the Decree and the current situation in the plant.
I. DIAL'S COMPLIANCE WITH SPECIFIC OBLIGATIONS FROM PARAGRAPH 39 OF THE DECREE
A. Required changes to the formal policy on harassment
The No Harassment or Retaliation Policy that existed as of the date of the Consent Decree was a brief document (attached as Exhibit A) that applied to not only sexual harassment but all forms of EEO-related harassment covered by federal, state, or local law. Paragraph 39(a) of the Consent Decree required Dial to:
revise its No Harassment Policy, as necessary, in order to: (i) provide examples to supplement the definitions of sexual harassment; (ii) include strong non-retaliation language with examples to supplement the definition of retaliation, and provide for substantial and progressive discipline for incidents of retaliation; (iii) provide that complaints of sexual harassment and/or retaliation will be accepted by Dial in writing and orally; (iv) provide a timetable for reporting sexual harassment and retaliation, for commencing an investigation after a complaint has been made or received and for remedial action, if any, to be taken upon conclusion of an investigation; and (v) indicate that, promptly upon the conclusion of its investigation of a complaint, Dial will communicate to the complaining party the results of the investigation and the remedial actions taken or proposed, if any, so long as the complainant agrees to keep any disciplinary action taken confidential.
These provisions in practice required a rewriting of Dial's previous policy. Pursuant to this provision, Dial submitted to the Monitors a proposed revision. The Monitors suggested certain changes and additions. Agreement was reached, prior to our Two Month Report, on a final version attached as Exhibit B. As can be seen from that Exhibit, the new Policy includes all the specific requirements of paragraph 39(a).
In our Two Month Report, we recommended that Dial immediately distribute the revised policy to all employees in the plant, with a written request to read it and return, within a short number of days to be determined by Dial, a written acknowledgment that they received and read it, and that Dial post the policy in the plant in place of the superseded policy. Dial carried out this recommendation.
B. Required Changes To Complaint Procedures
Paragraph 39(b) of the Decree required Dial to revise its complaint procedure, as necessary, to ensure that it is designed to encourage employees to come forward with complaints about violations of its No Harassment or Retaliation Policy.
The revised No Harassment or Retaliation Policy has carried out Dial's responsibility under 39(b). Specifically:
(1) As required by .39(b)(i), the revised Policy designates two Human Resources

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Department officials and their telephone numbers as persons who can be contacted. When the plant's Human Resources Director recently retired and was replaced, Dial, without prompting from us, corrected the Policy to change the contact-person names, and redistributed the Policy throughout the plant.
As also required by .39(b)(i), Dial has kept its 24 Hour Complaint Hotline in place. We reviewed the written and on-line materials which are available to employees and the manner in which employees can use the system to make a complaint. We also interviewed the responsible individuals within Dial Corporation charged with oversight of the 24-hour hot line system, including the assistant corporate secretary.
The Hotline is a system for receiving complaints from employees throughout the Dial organization. The system is not limited to complaints of sexual harassment. Complaints can be made by the toll free telephone number (the number is prominently posted on a banner in the plant, and in the printed No Harassment or Retaliation Policy), or by filing a complaint online.
Dial uses an outside contractor (EthicsPoint) to receive such complaints and transmit them to Dial. In practice, this Hotline has been used by employees across the corporation but has rarely, if ever, been used to report a complaint of sexual harassment.
In the course of reviewing the on-line method of reporting a complaint, the Monitors noticed that employees were required to sign a waiver and disclaimer before filing an online complaint. This led us to examine whether such a practice could act as a disincentive to an employee actually making a complaint, and in turn to evaluate Dial's methods to assure confidentiality of complaints made to the Hotline. We are satisfied that safeguards are in place to protect confidentiality of any employee who chooses to use the Hotline, whether by phone or on-line. We asked a number of employees about the Hotline in our interviews and found no evidence of any distrust of this mechanism.
(2) .39(b)(ii) requires Dial to assure that complainants will be interviewed about their complaints in such a manner that permits the complaining party, at her or his election, to provide information in a confidential manner. To this end, the revised Policy explicitly guarantees complainants and witnesses "the opportunity to provide information in a confidential manner, such as providing the information outside of their work area."
There has been only one complaint since the Decree took effect that alleged sexual harassment. The investigation was appropriately conducted away from the factory floor, in the office of the investigating Human Resource official, as the Decree requires.
Dial was not required by the Decree to consult with the Complaint Monitor in the course of conducting this investigation, but it elected to do so. Dial found merit to the complaint in question and discharged the accused employee. We reviewed the documentation assembled in the course of the investigation and found that documentation to be thorough and well done. As we will discuss in Section II below, our interviews with employees amply confirmed that nothing compares with termination of an offender for making clear an employer's refusal to tolerate sexual harassment in the workplace.
(3)39(b)(iii) imposes a best-efforts requirement of three weeks to complete investigations of complaints of sexual harassment and retaliation, with another seven days to prepare findings of the result of the investigation and remedial action proposed. Dial easily met this time limit in the one investigation conducted since the Decree (discussed above), completing the investigation and taking action in less than two weeks.
(4)39(b)(iv) requires Dial to allow complainants who are dissatisfied with the disposition of

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a complaint the opportunity to appeal to the "Complaint Monitor." Dial advised the complainant in the case referred to above of her right to appeal. No appeal was taken, unsurprisingly, since the complaint resulted in a discharge.
(5) During our employee interviews, we looked for any evidence that the present complaint procedure for sexual harassment at the plant deters employees from making complaints if they are experiencing sexual harassment. We found no substantial evidence of such deterrence. We asked employees whether, if they were experiencing sexual harassment, they would report it. Of the women asked this question, 58.8% flatly answered yes; another 35.3% said they would report harassment if they couldn't take care of it themselves or if it were severe enough; only 5.9% said they would not report it, and only two such persons gave distrust of management as their reason.
C. Policies To Promote Supervisor Accountability
(1) Section 39(c)(i) provides:
Dial agrees that it shall impose discipline up to and including termination, suspension without pay, or demotion upon any supervisor or manager who engages in sexual harassment or tolerates any such conduct in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding concerning any such conduct. Dial shall communicate this policy to all of its supervisors and managers.
No accusations of sexual harassment against supervisors or managers have been made since the Decree took effect. The one formal accusation against a nonsupervisory employee raised no issue of a supervisor "tolerating" that employee's activity within the meaning of this paragraph. The policy referred to in this paragraph is clearly included in Dial's revised No Harassment or Retaliation Policy, which, as stated above, has been communicated to all supervisors and managers. Likewise, the on-line training for supervisors (see below) emphasizes that discipline can result from harassment or retaliation by supervisors or managers.
(2) Section 39(b)(ii) requires Dial to continue to advise all managers and supervisors of their duty to monitor their work areas to ensure employees' compliance with the No Harassment or Retaliation Policy, and to report any incidents and/or complaints of sexual harassment and/or retaliation of which they become aware. The revised No Harassment or Retaliation Policy to which Dial has agreed includes language to this effect, as do the online training programs that Dial has given (see below). In March 2004, the Director of Human Resources at the plant, in connection with the annual distribution of the No Harassment or Retaliation policy, instructed all managers to conduct training on this policy during a team meeting, with a completion date of April 16, 2004, and required documentation to assure that everybody completed this training and review.
In our interviews with employees, we asked about the activities of their supervisors in bringing up sexual harassment issues during team meetings, which take place every week. We received varying responses about the frequency and length of time that was devoted to these issues by supervisors. It is clear that some supervisors are more careful and thorough than others in making sure that this subject matter gets brought up from time to time during team meetings. We therefore recommend that Human Resources provide ongoing guidance to supervisors to conduct activities in these meetings, at least on a quarterly basis beginning no later than July 1, 2004, that promote awareness of the No Harassment or Retaliation policy and to conduct proactive measures to prevent sexual harassment. To prevent such activities from turning into a rote or perfunctory exercise that never varies in content, Human Resources should become involved in planning the

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activities that supervisors will be asked to conduct and should take steps to assure that supervisors carry out the activities as planned on a reasonable uniform plantwide basis. We request that the Human Resources Director apprise us of each quarter's guidance to supervisors and provide verification of supervisor compliance.
(3) In .39(c)(iii), Dial agreed to "use in its supervisor appraisal process, an evaluation of the supervisor's handling of equal employment opportunity ("EEO") issues, and to link such evaluations directly to supervisor salary/bonus structure." In our Two Month Report, we recommended that Dial revise its current performance evaluation form and related materials in order to assure that the supervisor's handling of equal employment opportunity issues is specifically addressed during the appraisal process. Dial revised the form as requested.
Dial has provided us evidence that in the recent round of evaluations, evaluators are paying attention to the support that supervisors are giving to the Equal Opportunity Policy. There was no evidence during the year under review of inappropriate failure by supervisors to handle complaints or address episodes of sexual harassment. We request that Dial similarly provide us, by the end of the next evaluation cycle, with copies of specific material that comments in any manner on specific supervisors' performance or nonperformance in the area of EEO (names of evaluated employees should be deleted).
(4) In .39(c)(iv), Dial agreed to use "commitment to equal employment opportunity" as a criterion for qualification for supervisory positions. The Decree does not elaborate on this requirement, which raises two issues. The first is: how is this "criterion" applied when Dial promotes someone from a nonsupervisory position into a supervisory position. The second issue is: how is this "criterion" applied when Dial promotes management or supervisory people to higher-level management or supervisory positions? In both situations, the wording of .39(c)(iv) seems to assume a formalized promotion process in which formal "criteria" are applied to candidates for promotion, whereas, like many employers, Dial has not formalized to that extent its promotion process for supervisory or higher-level management positions.
Whatever Dial's techniques for such promotions, .39(c)(iv) clearly is intended to require steps to be taken to assure that persons known or suspected to have engaged in sexual harassment or related retaliation do not get promoted into these positions. (This is mainly an issue for promotion of supervisors to higher-level supervisory positions, because in recent years, it has been extremely rare to promote hourly workers into a supervisory salaried position. Dial has affirmed that it fills most entry-level supervisory positions by hiring persons with engineering backgrounds from outside.) 39(c)(iv) also clearly requires Dial, in making promotion decisions involving supervisory vacancies, to consider more generally any known history of the candidate relating to EEO matters.
The Human Resources Director participates in all promotions or hirings to management positions. She assures us that her participation is sufficient to guarantee that any persons who are known or suspected to have engaged in sexual harassment, or otherwise have negative experience in the area of EEO, will be flagged in the process and will not be granted the promotion. Given that the plant is not large and such promotions are rare, we see no reason to suggest any more formal process for applying the "criterion" of .39(c)(iv).
D. Sexual harassment prevention training
(1) Under .39(d)(i), Dial must continue to provide mandatory sexual harassment prevention training annually to all supervisors at the plant, to provide training to all new employees during employee orientation, to provide training to all "senior management officials," and to all Dial employees who are to be assigned to work at the plant, before their assignment begins. Dial has gone well beyond the requirements of this paragraph. In

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particular, the Decree does not specifically require sexual harassment prevention training of all workers at the plant, but in the past year Dial conducted two on-line sexual harassment prevention training courses developed by Seyfarth Shaw At Work, one for nonsupervisory and the other for supervisory and managerial employees. We reviewed both these courses and found them well done. We recommended certain modifications which Dial implemented by dealing with its vendor.
The course, which is marketed to many employers and is adapted for the particular employer's specific policies, uses a theme of classifying behavior in the "red, yellow, or green" zones. This theme registered with employees who took the course. Many employees acknowledged to us that using the phrase "You're in the red" or "You're in the yellow" provides a relatively nonconfrontational way to tell someone that his or her behavior is objectionable and will get him or her in trouble if he continues.
In our interviews, employees' reactions to the on-line format of the training varied. Other things being equal, live training does seem more desirable to us than on-line training (in which the course-taker can't ask questions), and some employees, both supervisory and nonsupervisory, expressed a preference for the live format. However, under present circumstances at Dial, the on-line courses have been more than adequate.
We recommend that the company immediately follow up to assure that on-line training is given to employees who for one reason or another, such as absence or technological barriers, missed the first round, since we came across a handful of people in interviews that did miss the training for such reasons. We request that Dial notify us when all training has been completed.
Dial provided evidence that most employees had previously had some sort of sexual harassment prevention training as part of more general training topics. It was therefore noteworthy that over half the employees we interviewed, including many who had been at Dial for many years, told us that they had never had sexual harassment prevention training at Dial before taking the on-line course. It seems clear that employees participate in a lot of training and that they tend to forget over time about the specific subject matter involved particularly if (as with sexual harassment prevention training in years past) the subject in question is included with other subjects.
We recommend that Dial design a refresher version of sexual harassment prevention training to be given every one to two years. Providing refresher training was supported by the vast majority of the employees we interviewed and seems particularly appropriate given the difficulty many people have in remembering even the fact of prior training in this area. The length and format of such refresher training is left to the company in light of its other training programs and logistics. Strong consideration should be given to including live discussion in such refresher training, since the ability to ask questions is the main missing ingredient from any on-line training format. We request that Dial advise us of plans for such refresher training, as well as the opportunity to review the content. We also request notification of, and the prior opportunity to review, the annual supervisory training in 2004 mandated by 39(d)(i).
39(d)(i) expressly requires training for all new hires during employee orientation. Dial complies by having its Human Resources Manager review the No Harassment or Retaliation Policy with new hires during the orientation process. The same section also requires that when Dial reassigns employees from another facility to the Montgomery plant, it provide sexual harassment prevention training to those employees before moving them to the plant. Dial has now given its on-line training courses at all its facilities, so employees henceforth transferred to the Montgomery plant will have almost certainly had this training, as the Decree requires. There have been no transfers during the life of the Decree of employees from other plants to the Montgomery plant. We recommend that henceforth

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Dial give the appropriate on-line course to new hires and employees transferred to the Montgomery plant who have not taken that course before.
The Decree requires that Dial provide training to all persons at the plant charged with the handling of sexual harassment and retaliation, to be given by "experienced sexual harassment educators and/or investigators." Seyfarth Shaw At Work provided such training on October 29, 2003 for Dial's Human Resources and Employee Relations managers. The training incorporated the EEOC's 1999 Guidance On Workplace Investigations and focused on enhancing, as well as further developing, successful investigation skills.
II. THE CURRENT CLIMATE IN THE PLANT WITH RESPECT TO CONTROL OF SEXUAL HARASSMENT
The Decree requires our report to assess "the effectiveness of Dial's policies and practices for the achievement of Dial's Statement of Intolerance of Sexual Harassment."
All evidence available to us shows that sexual harassment and related retaliation are not significant problems at the plant at the present time, and that if incidents do occur and are brought to management's attention, they will be dealt with promptly and appropriately.
There has been only a single complaint of sexual harassment made by an employee in the past year through Dial's internal procedure, and no complaints have been made to any outside agency during that period. The single complaint, discussed earlier in this report, resulted in an immediate and prompt investigation and the discharge of the accused employee.
The very low incidence of complaints would be meaningless if employees were refusing to report misconduct, but we are confident that this is not the case. Our employee interviews confirmed in various independent ways that the incidence of sexual harassment in the plant is very low.
1. We asked employees whether they believed sexual harassment was a serious problem in the plant at the present time. Only a single employee out of the 75 we interviewed answered this question "yes," and that employee's responses to other questions suggests a belief that the situation in the plant has significantly improved over the years for women.
To test the candor of responses to this question, we asked employees if they thought sexual harassment had been a problem in the plant in the past. Although some employees, including women, denied that sexual harassment had ever been a significant problem, a majority, both women and men, told us they did believe that sexual harassment had been a significant problem in the plant in the past. We do not wish these responses to be misconstrued. We did not specify what time period we meant by "the past." Some of the employees who answered this question have worked at Dial upwards of thirty years, others have worked there only a few years, and still others for various periods in between. Thus, the fact that some employees believe that at some past time sexual harassment was a problem in the plant does not mean, to us as monitors, that it was or was not a problem as of the time the EEOC filed its lawsuit or thereafter, and does not reflect on the adequacy or inadequacy of measures Dial took prior to the entry of the Decree to control sexual harassment. It is not our function to make findings on whether there was in fact sexual harassment in the plant in the past or its extent; one reason the litigation was settled was to avoid having a judicial determination of that question. To us, the significance of these responses from employees is for the present. If employees tell us they believe sexual harassment to have been a significant problem in the plant in the past, but that it is not a significant problem today, we have considerable reason to have confidence in the sincerity of their responses. The fact that employees do not presently perceive a significant problem should therefore be a source of satisfaction to both Dial and the EEOC.
2. We asked employees whether they had personally experienced sexual harassment since

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the settlement of the litigation. Not a single employee answered this question yes. By contrast, slightly over half the women interviewed claimed to have experienced sexual harassment at some point prior to the settlement. (Their employment often goes back several decades, so no implication can be drawn from this statistic about the overall situation at any given time in the past.)
3. We asked employees not only about their own experience but also whether they had seen any other employees being sexually harassed since the settlement took effect. No women answered this question "yes."
4. We asked if there had been any change in the environment for women in the plant in recent years. A substantial majority of both men and women answered yes. Two factors were frequently mentioned by employees who cited improvement in the working environment for women at the plant. First, a significant number attributed the improvement to the litigation, even though employees had varying opinions about the validity of the claims made in the litigation. Second, many employees made clear their view that persons who are found to have engaged in sexual harassment can expect to be fired. When responding to our questions about their knowledge of and opinions about Dial's anti-harassment policy, employees repeatedly brought up the case referred to earlier in this report, in which an employee accused of sexual harassment was terminated after an investigation found merit to the charges. Such discharges are often unpopular (some of the employees we interviewed were critical of this discharge even though they admitted to having no knowledge of what had happened), but they underscore the fact that management is serious about preventing sexual harassment.
The generally favorable views employees expressed about the current control of sexual harassment at the plant should not be cause for complacency. A number of women commented to us that there are men who still "push the envelope" in terms of objectionable comments and sexual innuendo, even after the litigation and even after the sexual harassment prevention training. Many women said that they would be reluctant to report such low-level misconduct and would do so only if they could not take care of the matter themselves or if the misconduct was severe. They know there is a likelihood of a strong response from management toward the offending employee, and some of them believe they could experience retaliation in the form of hostility from coworkers if the fact of their making a complaint were to become known. In our experience, such attitudes are a byproduct of any successful management program for the control of sexual harassment, particularly in a factory environment, because the more severely management punishes sexual harassers, the more reluctant some employees are to report it.
The best way to deal with this inevitable dilemma is to assure that first-line supervisors are alert to the way men and women deal with each other on the factory floor, and to detect and put a stop to problems involving disrespectful speech or other conduct that may violate Dial's policy before those problems develop into possible claims of sexual harassment. In this respect, it is encouraging that most employees we interviewed told us that they believed their own supervisors were effective in administering Dial's No Harassment or Retaliation policy.
One issue companies must face is what policy to adopt toward dating or romantic relationships between supervisors and persons within their line of supervision. We received reports in employee interviews asserting that such relationships do occur in the plant. Different companies have different policies on this issue, and some have no policy at all, or keep their policies informal. Dial informed us that it does not permit these relationships and that it takes corrective steps when it learns that supervisors are dating subordinates or are romantically involved with subordinates. Since that is Dial's express policy, we recommend to Dial that it take, within 30 days, whatever concrete steps it deems necessary to disseminate and reinforce to its supervisors the existence and importance of this policy, and that it inform us of the actions taken.

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Page 9 of 9
GEORGE F. GALLAND, JR. REGINALD E. JONES NANCY B. KREITER

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5/17/2007

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
Plaintiff, vs.
THE DIAL CORPORATION, Defendant.

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No. 99 C 3356

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Judge Warren K. Urbom

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FINAL REPORT OF THE CONSENT DECREE MONITORS TO THE PARTIES AND THE COURT

FINAL REPORT OF THE CONSENT DECREE MONITORS TO THE PARTIES AND THE COURT
George F. Galland, Jr. Reginald E. Jones Nancy B. Kreiter
We were appointed as Decree Monitors pursuant to the Consent Decree agreed to between the Equal Employment Opportunity Commission and Dial Corporation in case no. 99-C 3356 in the United States District Court for the Northern District of Illinois. This lawsuit alleged a pattern and practice of sexual harassment of employees at Dial’s plant in Montgomery, Illinois, near Aurora.
Paragraph 44 of the Decree provides:
Within two (2) months after the appointment of the Decree Monitors, they will: (i) evaluate all existing employment policies, procedures, and practices that are related to the objectives contained in the Statement of Intolerance of Sexual Harassment and this Decree; and (ii) after consultation with EEOC and Dial, make recommendations for any changes to such existing policies, procedures and practices that the Decree Monitors believe is necessary or appropriate. The Decree Monitors shall report their findings and recommendations to EEOC and Dial. On August 29, 2003, after obtaining a one-month extension, we issued to Dial and to the EEOC the Two Month Report required by paragraph 44. Paragraph 47 of the Decree provides:
Within one (1) year after appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices, and shall submit a written report to EEOC, Dial and the Court setting forth the following information:
(i) an assessment of whether Dial has successfully implemented each specific policy/practice agreed upon in paragraph 39 above;
(ii) for each specific policy/practice that has not been successfully implemented, a statement discussing the reason for Dial’s failure to implement such change;
(iii) an evaluation of the impact of the specific changes made pursuant to this Decree;
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(iv) an assessment of the effectiveness of Dial’s policies and practices for the achievement of Dial’s Statement of Intolerance of Sexual Harassment;
(v) recommendations for any changes to existing practices, policies or programs or any additional policies, practices or programs that the Decree Monitors deem necessary or appropriate for achieving Dial’s Statement of Intolerance of Sexual Harassment and the terms of this Decree; and
(vi) timetables for implementation and completion of compliance with any of the recommendations, subject to the terms of this Decree.
We issued the One Year Report required by this paragraph on May 26, 2004. We found Dial in compliance with all significant obligations under the Consent Decree. We found that “All evidence available to us shows that sexual harassment and related retaliation are not significant problems at the plant at the present time, and that if incidents do occur and are brought to management’s attention, they will be dealt with promptly and appropriately.”We made certain recommendations for further improvements.
Paragraph 47 of the Decree, after the provisions quoted above, provides that “At the end of the second year and then again at the end of the duration of this Consent Decree, the Decree Monitors shall submit a report to EEOC, Dial and the Court setting forth the same information described herein.”We issued the Second Year Report on May 20, 2005. We again found that Dial was in compliance with all aspects of the Decree and that “there has been no evidence over the past year of any significant sexual harassment problem in the plant.”
The present report will be our final report before the Decree expires by its terms at the end of October 2005. To prepare this report, we reviewed the entire record of Dial’s actions under the Decree from its inception; visited the plant again on August 30, 2005, where we interviewed over 40 employees chosen by random selection; reviewed new training materials prepared by an outside vendor for purposes of conducting “refresher”training on Dial’s No Harassment or Retaliation Policy and annual supervisory training; and sought and obtained from Dial certain supplemental information. As a result of our activities, we believe we have a detailed and accurate perception of how Dial’s written policies actually function in practice, what the situation
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is on the plant floor with respect to control of sexual harassment, and how employees themselves perceive Dial’s policies in this area.
As discussed in this report, we conclude that Dial has complied throughout the two and a half years of this Decree with the specific obligations imposed on it, and that episodes of sexual harassment continue to be rare in the plant and are dealt with appropriately when brought to management’s attention. The recommendations we have made during the duration of this Decree have been small both in number and in scope, and Dial has adopted them. Continuation of its present policies once the Decree expires should keep Dial in a good position to avoid problems of sexual harassment in the future.
I. CUMULATIVE REVIEW OF DIAL’S ACTIONS TO COMPLY WITH OBLIGATIONS FROM PARAGRAPH 39 OF THE DECREE
A. Distribution of the Settlement Fund The Decree assigned the Monitors no role in the processing of claims against the Settlement Fund. However, our experience suggested to us that claims processes of this nature have the potential of creating problems on the plant floor arising from resentment of those who received settlement payments. Our interviews of employees led us to conclude that at Dial the process went smoothly and that there was no evidence that participants in the claims process suffered any form of retaliation for doing so.
B. Revision to Sexual Harassment Policy The No Harassment Policy that existed as of the date of the Consent Decree was a brief document that applied to not only sexual harassment but all forms of EEO-related harassment covered by federal, state, or local law. Paragraph 39(a) of the Consent Decree required Dial to: revise its No Harassment Policy, as necessary, in order to: (i) provide examples to supplement the definitions of sexual harassment; (ii) include strong non-retaliation language with examples to supplement the definition of retaliation, and provide for
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substantial and progressive discipline for incidents of retaliation; (iii) provide that complaints of sexual harassment and/or retaliation will be accepted by Dial in writing and orally; (iv) provide a timetable for reporting sexual harassment and retaliation, for commencing an investigation after a complaint has been made or received and for remedial action, if any, to be taken upon conclusion of an investigation; and (v) indicate that, promptly upon the conclusion of its investigation of a complaint, Dial will communicate to the complaining party the results of the investigation and the remedial actions taken or proposed, if any, so long as the complainant agrees to keep any disciplinary action taken confidential. Pursuant to this provision, Dial submitted to the Monitors a proposed revision of its policy. The Monitors suggested certain changes and additions, and agreement was reached on a final version which complies fully with ¶39. In our initial report we recommended that Dial immediately distribute the revised policy to all employees in the plant, with a written request to read it and return, within a short number of days to be determined by Dial, a written acknowledgment that they have received and read it, and post the policy in the plant in place of the superseded policy. Dial implemented this recommendation.
C. Complaint Procedures As required by ¶39(b)(i), the revised Policy designated two Human Resources Department officials and their telephone numbers as persons who can be contacted. Dial has kept this section of the Policy updated when the relevant officials changed. As also required by ¶39(b)(i), Dial has kept its 24 Hour Complaint Hotline in place. We reviewed the written and on-line materials which are available to employees and the manner in which employees could use the system to make a complaint. We also interviewed the responsible individuals within Dial Corporation charged with oversight of the 24-hour hot line system, including the assistant corporate secretary. The Hotline is a system for receiving complaints from employees throughout the Dial organization. The system is not limited to complaints of sexual harassment. Complaints can be made by the toll free telephone number (the number is prominently posted on a banner in the plant, and in the printed No Harassment/ Retaliation Policy), or by filing a complaint online. Dial uses an outside contractor (Ethics Point) to receive
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such complaints and transmit them to Dial. In practice, this Hotline has been used by employees across the corporation but has rarely, if ever, been used to report a complaint of sexual harassment. Of the five internal complaints of sexual harassment or related retaliation that were received by Dial from the Montgomery plant while the Decree has been in effect, only one was received through the Hotline.
In the course of reviewing the on-line method of reporting a complaint, the Monitors noticed that employees were required to sign a waiver and disclaimer before filing an on-line complaint. This led us to ask whether such a practice could act as a disincentive to an employee actually making a complaint, and in turn to ask about Dial’s methods to assure confidentiality of complaints made to the Hotline. Dial officials satisfied us that safeguards are in place to protect confidentiality of any employee who chooses to complain through the Hotline, whether by phone or on-line. We asked a number of employees about the Hotline in our interviews and found no evidence of any distrust of this mechanism.
¶39(b)(ii) required Dial to assure that complainants will be interviewed about their complaints in such a manner that permits the complaining party, at her or his election, to provide information in a confidential manner. To this end, the revised Policy explicitly guarantees complainants and witnesses “the opportunity to provide information in a confidential manner, such as providing the information outside of their work area.”
¶39(b)(iii) imposed a best-efforts requirement of three weeks to complete investigations of complaints of sexual harassment and retaliation, with another seven days to prepare findings of the result of the investigation and remedial action proposed. During the two and a half years of this Decree, there have been five such investigations. Dial met this three-week time limit for all of them.
¶39(b)(iv) required Dial to allow complainants who are dissatisfied with the disposition of a complaint the opportunity to appeal to the “Complaint Monitor.”On two of the five complaints filed during the life of the Decree, Dial failed to inform the complainants of this opportunity. The Complaint Monitor found out through other means of these failures, investigated them, and
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concluded they were inadvertent mistakes. They represent the only occasions during the course of this Decree in which Dial overlooked the requirements of any specific provision of the Decree.
Aside from verifying compliance with these specific obligations, during our employee interviews, we looked for any evidence that the present complaint procedure for sexual harassment at the plant deters employees from making complaints if they are experiencing sexual harassment, and found no substantial evidence of such deterrence. We asked employees whether, if they were experiencing sexual harassment, they would report it. In the first set of interviews conducted in early 2004, 58.8% flatly answered yes; another 35.3% said they would report harassment if they couldn’t take care of it themselves or if it was severe enough; only 5.9% said they would not report it, and only two such persons gave distrust of management as their reason. In the interviews of August 2005, the responses were essentially the same. As we said in our One Year Report, in a unionized factory which has been the scene of recent sexual harassment litigation, this seems to us to represent an encouragingly low incidence of negative responses to this question. Employees tended to say that they would report problems in the first instance to their immediate supervisor rather than to Human Resources.
D. Policies to Promote Supervisor Accountability Decree ¶39(c)(i) provided: Dial agrees that it shall impose discipline –up to and including termination, suspension without pay, or demotion –upon any supervisor or manager who engages in sexual harassment or tolerates any such conduct in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding concerning any such conduct. Dial shall communicate this policy to all of its supervisors and managers. During the life of the Decree, one accusation of retaliation related to an earlier sexual harassment complaint was made by a nonsupervisory employee against a supervisor. Dial investigated and found the charge without merit, a conclusion with which the Complaint Monitor concurred.
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Section 39(c)(ii) required Dial to continue to advise all managers and supervisors of their duty to monitor their work areas to ensure employees’compliance with the No Harassment or
Retaliation Policy, and to report any incidents and/or complaints of sexual harassment and/or
retaliation of which they become aware. In our First Year Report, we recommended
that Human Resources provide ongoing guidance to supervisors to conduct activities in team meetings, at least on a quarterly basis beginning no later than July 1, 2004, that promote awareness of the No Harassment or Retaliation policy and to conduct proactive measures to prevent sexual harassment. To prevent such activities from turning into a rote or perfunctory exercise that never varies in content, Human Resources should become involved in planning the activities that supervisors will be asked to conduct and should take steps to assure that supervisors carry out the activities as planned on a reasonable uniform plantwide basis. We request that the Human Resources Director apprise us of each quarter’s guidance to supervisors and provide verification of supervisor compliance. Dial accepted this recommendation and has complied with it, designing material (referred to as “12-3 Refresher”) for supervisors’use in quarterly team meetings that were conducted in September
and October 2004, December 2004, March 2005, and June 2005. In our Two Year Report, we
again recommended that Dial vary the material used in these quarterly meetings, and Dial did so. We received favorable feedback from employees in interviews about the use of supervisors’team
meetings to revisit the No Harassment or Retaliation Policy. We recommend that this process
continue once the Decree ends. In ¶39(c)(iii), Dial agreed to “use in its supervisor appraisal process, an evaluation of the
supervisor’s handling of equal employment opportunity (“EEO”) issues, and to link such evaluations directly to supervisor salary/bonus structure.” In our initial report, we recommended
that Dial revise its current performance evaluation form and related materials to incorporate appropriate language to assure that the supervisor’s handling of equal employment opportunity
issues is specifically addressed during the appraisal process. Dial revised the form as requested.
Thereafter, Dial periodically provided us with copies of specific material (with names of evaluated employees deleted) that commented in any manner on specific supervisors’performance or
nonperformance in the area of EEO. Dial has seen no occasion to conduct criticism of
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supervisors on this score in these evaluations and we have seen no episodes that we thought merited such formal criticism.
In ¶39(c)(iv), Dial agreed to use “commitment to equal employment opportunity”as a criterion for qualification for supervisory positions. The Decree does not elaborate on this requirement, which raises two issues. The first is: how is this “criterion”applied when Dial promotes someone from a nonsupervisory position into a supervisory position? The second issue is: how is this “criterion”applied when Dial promotes management or supervisory people to higher-level management or supervisory positions? In both situations, the wording of ¶39(c)(iv) seems to assume a formalized promotion process in which formal “criteria”are applied to candidates for promotion, whereas, like many employers, Dial has not formalized to that extent its promotion process for supervisory or higher-level management positions.
Whatever Dial’s techniques for such promotions, ¶39(c)(iv) clearly requires taking steps to assure that persons known or suspected to have been sexual harassers do not get promoted into these positions. (This is mainly an issue for promotion of supervisors to higher-level supervisory positions, because in recent years, it has been extremely rare to promote hourly workers into a supervisory salaried position. Dial now fills most such entry-level supervisory positions by hiring persons with engineering backgrounds from outside.) The Human Resources Director participates in all promotions or hirings to management positions. She assures us that her participation is sufficient to assure that any persons who are known or suspected to have engaged in sexual harassment, or otherwise have negative experience in the area of EEO, will be flagged in the process and will not be granted the promotion. Given that the plant is not large and such promotions are rare, we see no reason to suggest any more formal process for applying the “criterion”of ¶39(c)(iv).
E. Sexual Harassment Training
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Under ¶39(d)(i), Dial must continue to provide mandatory sexual harassment prevention training annually to all supervisors at the plant, to provide training to all new employees during employee orientation, to provide training to all “senior management officials,”and to all Dial employees who are to be assigned to work at the plant, before their assignment begins.
As we noted in our First Year Report, Dial went beyond the requirements of this paragraph. In particular, the Decree does not specifically require sexual harassment prevention training of all nonsupervisory workers at the plant, but in the first year of the Decree Dial conducted such training through an on-line sexual harassment prevention training course developed by Seyfarth Shaw At Work. We reviewed this course, as well as another on-line course developed to satisfy the Decree’s requirement of annual sexual harassment prevention training for supervisors. We found both on-line courses well done. We suggested certain minor changes which Dial made wherever they could be adapted within the particular training product.
In our One Year Report, we recommended that the company immediately follow up to assure that on-line training is given to employees who for one reason or another, such as absence or technological barriers, missed the first round, since we became aware through interviews of people who did miss the training for such reasons. Dial complied with this recommendation and notified us of the results.
Our One Year Report also recommended that Dial design a refresher version of sexual harassment prevention training to be given every one to two years. Dial agreed with this recommendation and specifically has agreed to provide refresher training for nonsupervisory employees in the fall of 2005. In both the One Year Report and Second Year Report, we recommended that strong consideration be given to including live discussion in the next version of that training. Dial did give consideration to this request but ultimately decided to purchase a “refresher”on-line course designed by the same vendor who designed the on-line basic course. Given the extremely low incidence of any allegations of sexual harassment at the plant at the present time, we accepted this decision. On-line training is now part of Dial’s “culture.”Although
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our employee interviews produced much support for a “refresher”course, there was no clear consensus that live training would be more valuable than on-line training.
We reviewed an early “draft”version of the refresher on-line training course. It had not yet been customized for Dial Corporation but will be customized. In general we found the product adequate but not as well designed as the “complete”version of the on-line courses. We made suggestions to improve it. Dial passed on these suggestions to the vendor. Some proved technically feasible at an acceptable cost and will be made, while others did not. Dial informs us that the refresher on-line course will be given shortly after the Decree expires.
Decree ¶39(d)(i) expressly requires training for all new hires during employee orientation. In connection with this obligation, our One Year Report noted that “Dial complies by having its Human Resources Manager review the No Harassment or Retaliation Policy with new hires during the orientation process,”and recommended that “henceforth Dial give the appropriate online course to new hires and employees transferred to the Montgomery plant who have not taken that course before.”Dial complied with this recommendation.
The same section also required that where Dial reassigns employees from another facility to the Montgomery plant, it provide sexual harassment training to those employees before moving them to the plant. Dial can comply with the letter of this obligation merely by following its existing practice of including training in sexual harassment during new employee orientation for all employees at all facilities. But in any case, there has been training for employees transferred into the plant from elsewhere during the period of the Decree.
Decree ¶39(d)(i) expressly requires mandatory sexual harassment prevention training annually for all supervisors at the plant. In fall 2004 Dial complied with this requirement by repeating the on-line course for supervisors, and as discussed above it is developing a new on-line course for this purpose in 2005. In the Second Year Report we recommended that strong consideration be given to including live discussion in the next version of supervisory training, but Dial decided to stay with the on-line format, for reasons similar to those discussed above in connection with “refresher”training.
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The Decree also required that Dial provide training to all persons at the plant charged with the handling of sexual harassment and retaliation, to be given by “experienced sexual harassment educators and/or investigators.”Seyfarth Shaw At Work provided such training on October 29, 2003 for Dial’s Human Resources and Employee Relations managers, including from the Montgomery Plant.
F. Miscellaneous In our First Year Report we commented on Dial’s internal policy discouraging romantic relationships between supervisors and subordinates and recommended that Dial take, within 30 days, whatever concrete steps it deemed necessary to disseminate and reinforce to its supervisors the existence and importance of this policy, and to inform us of the actions taken. In response, Dial told supervisors at a July 2004 supervisor meeting that it had a policy against dating among supervisors and subordinates when there is a direct reporting relationship between the two individuals. It instructed supervisors that if they find themselves in this situation, s/he must advise Human Resources, and that Dial would then manage the situation on a case by case basis in a way that minimizes the effect on employee morale and productivity from both the standpoint of coworkers and the two employees involved in the relationship. Despite stating this policy orally to supervisors, however, Dial did not put this policy into writing. In our employee interviews in August 2005, we encountered employees who said that that dating between supervisors and subordinates continued to occur in the plant and who were not aware of Dial’s anti-dating policy. We discussed this matter with Dial. Dial then formulated a simple and clear written statement of its policy and informed us that it intends to distribute that policy to its supervisors. We concur with this plan and also recommend that the policy be distributed to all employees in the plant and covered in training and “1-2-3 Refresher”materials.
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II. THE CURRENT CLIMATE IN THE PLANT WITH RESPECT TO CONTROL OF SEXUAL HARASSMENT The Decree requires this Final Report, like earlier reports, to assess “the effectiveness of
Dial’s policies and practices for the achievement of Dial’s Statement of Intolerance of Sexual Harassment.”
As with earlier reports, all evidence available to us shows that sexual harassment and related retaliation are not significant problems at the plant at the present time, and that if incidents do occur and are brought to management’s attention, they will be dealt with promptly and appropriately.
First, the incidence even of complaints about sexual harassment or related retaliation has been remarkably low throughout the Decree. In thirty months there have been only five such complaints to management by employees –an average of one every six months. Of these five complaints, management concluded in three cases that there had been a violation of the No Harassment or Retaliation Policy and imposed discipline, including discharge in two cases. In the remaining two, management did not impose discipline, finding the complaint without merit in one case and in another case finding that witnesses identified by the complainant did not support the complainant’s account. In all cases, in our view, management reacted appropriately to the situations that were brought to its attention.
Second, there have been no complaints of sexual harassment or related retaliation to agencies outside of Dial throughout the life of the Decree.
Third, both sets of employee interviews (February 2004 and August 2005) confirmed that employees do not believe that sexual harassment is common at the plant. The results of the latest interviews include the following:
1. We asked employees whether they believed sexual harassment was a serious problem in the plant at the present time. The overwhelming majority of employees expressed strong opinions to the effect that the plant today is free of sexual harassment and that it is now punished severely by management when it comes to management’s attention.
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2. We asked employees if they had experienced sexual harassment themselves since the settlement. Three out of the 42 employees who answered this question answered “yes.”Two of those employees brought the matter to management’s attention, and in our view, management reacted quickly and appropriately to the matter. The third did not report the matter in question.
3. We asked employees not only about their own experience but also whether they had seen any other employees being sexually harassed since the settlement took effect. Three out of the 43 employees who answered this question said “yes.”One of these, however, reported an incident that took place several years before the settlement. In the other two cases, the matter was reported to management, with resulting action referred to above.
4. We asked if there had been any change in the environment for women in the plant over the last two or three years. A majority of both genders answered yes, and every such respondent said the change had been for the better. As with the answers to this question in our 2004 interviews, persons who perceived an improvement in the plant in recent years tended to attribute the improvement to the litigation (even though employees continued to have varying opinions about how valid the claims made in the litigation were) and to a clear policy with strict consequences for its violation. Employees in these latest interviews commented extensively on their belief that persons who are found to have engaged in sexual harassment can expect to be fired.
As we commented in earlier reports, the generally favorable views employees expressed about the current control of sexual harassment at the plant should not be cause for complacency. The latest interviews continued to produce occasional comments about men who make objectionable comments and sexual innuendo, even after the litigation and even after the sexual harassment prevention training. Many women said that they would be reluctant to report such low-level misconduct and would do so only if they could not take care of the matter themselves or if the misconduct was severe.
We therefore repeat our earlier comment that the best way to deal with this inevitable dilemma is to assure that first-line supervisors are alert to the way men and women deal with each
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other on the factory floor, and to detect and put a stop to problems involving disrespectful speech or other conduct that may violate Dial’s policy before those problems develop into possible claims of sexual harassment. There is a certain degree of violation of Dial’s No Harassment and Retaliation policy at which it is unrealistic to expect that employees will report the matter to Human Resources or anywhere else and thereby put the offender at risk of being fired. Such conduct can be seriously offensive to employees at whom it is directed even though they are reluctant to report it, and if it becomes habitual it can lead to more serious problems for employees and the company. Our experience is that in the absence of appropriate vigilance by first line supervisors, and in the absence of appropriate punishment of sexual harassment when reported, there is always a significant danger in any factory environment for sexually harassing behavior to become unacceptably common. It is therefore important for supervisors to be vigilant.
As with earlier interviews, most employees we interviewed told us that they believed their own supervisors were effective in administering Dial’s No Harassment/Retaliation policy. If this continues to be the case, and if Dial continues to deal with appropriate severity with those episodes that are reported and where violations are found, the current satisfactory state of affairs with respect to the control of sexual harassment can be expected to continue.

October 26, 2005

/s/ George F. Galland, Jr. GEORGE F. GALLAND, JR.
/s/ Reginald E. Jones REGINALD E. JONES
/s/ Nancy B. Kreiter NANCY B. KREITER

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CERTIFICATE OF SERVICE The undersigned, under penalty of perjury, certifies that on October 26, 2005, a copy of the foregoing FINAL REPORT OF THE CONSENT DECREE MONITORS TO THE PARTIES AND TO THE COURT was served on all attorneys of record electronically pursuant to ECFS.
/s/ George F. Galland, Jr. __________
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 Page 1 of 2

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE AUGUST 16, 2001

CONTACT:

John C. Hendrickson EEOC Regional Attorney (312) 353-8551 (312) 886-5972

Noelle Brennan Supervisory Trial Attorney (312) 353- 7303 TTY: (312) 353-2421

Federal Judge Rules EEOC Suit Against Dial Soap Can Proceed As Class "Pattern or Practice" Case

Major Victory for Commission in Biggest Sexual Harassment Suit Since Mitsubishi
CHICAGO - The U.S. Equal Employment Opportunity Commission (EEOC) has released the decision of the federal court here holding that the agency's major class sexual harassment lawsuit against the maker of Dial soap will go ahead toward trial. In a 46-page written decision dated August 9, 2001, District Judge Warren K. Urbom denied virtually every argument advanced by The Dial Corporation in support of its Motion for Summary Judgment against EEOC. In the case, EEOC v. The Dial Corporation, N.D. Illinois No. 99 C 3356, EEOC alleges a wide-spread pattern or practice of sexual harassment of women at Dial's Aurora, Illinois, facility stretching back to 1988. According to EEOC, one of the most significant aspects of the decision was the determination that the case against Dial would go forward as a class "pattern or practice" case, similar to its class sexual harassment case against Mitsubishi Motors Manufacturing of America which was resolved three years ago for $34 million.
In holding that EEOC had produced enough evidence to thwart Dial's effort to avoid a trial on the merits in the case, Judge Urbom wrote:
"Taking the EEOC's version of the facts as true, it appears that the work environment at Dial was sexually charged in a way that was offensive and demeaning to women. Several women testified that they were subjected to physically-invasive behavior by male employees. This alleged behavior ranged in severity from men touching women's breasts and buttocks to an incident where a male co-worker grabbed a class member by the crotch and jerked upward. In addition, male employees allegedly exposed themselves to their female co-workers or touched their genitals while making suggestive or threatening remarks. Dozens of women also indicated that they were the targets of repeated comments and conduct of a sexual nature. Finally, many women testified as to open displays of sexually offensive materials in the workplace, including pornographic magazines, pornographic calendars, pictures of nude women, pictures of scantily-clad women, and sexual cartoons."
"I have already concluded that the EEOC has presented sufficient evidence for a reasonable jury to find that Dial either knew or should have known of a plant-wide sexual harassment problem. I have also determined that there is little, if any, evidence demonstrating that Dial took steps to determine whether individual incidents, which occurred frequently and continuously, were indicative of a larger problem requiring a company wide response. In light of these conclusions, I am not persuaded that Dial's efforts to prevent harassment on a plant-wide basis were reasonable as a matter of law." EEOC v. The Dial Corporation, N.D. Ill. No. 99 C 3356, 8/9/2001 Mem. & Order, pp. 23-24, 30 (internal punctuation, citations omitted).
John C. Hendrickson, EEOC Regional Attorney in Chicago said, "A generation came of age with Dial's advertising jingles and its assurances that Dial stands for cleanliness and wholesomeness. EEOC's contention is that the reality at Dial was altogether different. Judge Urbom's decision means that our contention will be presented in open court. We expect to show that the maker of Dial soap, the sponsor of those messages, was subjecting its own female employees the very women who make the soap to a pattern or practice of sexual harassment which continued for years."
Hendrickson added, "At enormous cost, Dial pulled out all of the stops to prevent this case from going forward and to prevent EEOC's claims on behalf of Dial's female employees from being aired in court. It is clear from the

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Court's decision, and Dial should have known from the beginning, that strategy was doomed. Sunlight is the best disinfectant. We are optimistic that sexual harassment at Dial is going to be cleaned up and that its victims are going to be made whole."
Noelle Brennan, EEOC Supervisory Trial Attorney, said "This is the largest sexual harassment case EEOC's Chicago District Office has litigated since Mitsubishi. We believe Judge Urbom's decision is extraordinarily important because it nails down many of the legal principles which we pursued and realized in Mitsubishi. These principles include that EEOC can litigate large sexual harassment cases by proceeding on behalf of the women victims as a group and by challenging the policies and practices of employers such as Dial which permit sexual harassment to continue as a routine way of doing business."
EEOC Trial Attorney John Knight said, "If you want to attack sexual harassment effectively, you have to be able to litigate what employers are doing and not doing in permitting it to continue. Prosecuting purely individual claims on a purely individual basis would take forever and preclude any real solution. That is why in cases such as this one against Dial the ability to proceed on behalf of all victims at the same time is important. Cases like this, and the multi-million dollar exposures they generate for recalcitrant employers are, in our judgment, the best way to do something serious about the problem."
EEOC noted that the Court did dismiss the claims of approximately one dozen women who the EEOC alleged had suffered "gender discrimination" rather than sexual harassment. Excluding those individuals, EEOC will proceed on behalf of approximately 90 remaining victims. EEOC said that if a jury were to award each of those women the $300,000 compensatory and punitive damages maximum permitted under the Civil Rights Act of 1991, Dial's aggregate liability in the case could exceed $25 million.
EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964, as amended, which prohibits employment discrimination based on sex (including sex harassment), race, religion, and national origin, or on retaliation for asserting rights under Title VII; the Age Discrimination in Employment Act of 1967, as amended; the Equal Pay Act of 1963, and Title I of the Americans with Disabilities Act . Further information about the Commission is available on the agency's web site at www.eeoc.gov.
This page was last modified on August 16, 2001.
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