UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintirf,
v,

Case: 2:06-cv-14319 Assigned To: Cox, Sean F Referral Judge: Morgan, Virginia M Filed: 09-29-2006 At 03.15 PM CMP EEOC V. ROCKET ENTERPRISE, INCa
RPORATED (JTC)

ROCKET ENTERPRlSE, INC.,

COMPLAlNT AND JURY TRIAL DEMAND

Defendant.
-------------------------!

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sexual harassment and retaliation, and to provide appropriate relief to fonner employee Mary BischotT ("Bischoff'), who was adversely affected by such practices, The Commission alleges that Defendant, Rocket Entcrprise, Inc" ("Defcndant") discriminated against Bischoff when it permitted her to be sexually harassed by a co·worker and retaliated against Bischofrby lemlinating her in response to her complaint about the sexual harassment.
JURISDICTION AND VENUE 1. Jurisdiction ofthis Court is invoked pursllant to 28 U,S,C, §§ 451,1331, 1337, 1343, and 1345, This action is ullthorized and instituted pursuant to Sections 706(f)(1) and (3) of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U,S,C, 2000e-S(I)( I) and (3) ("Title VII") , and Section 102 of the Civil Rights Act of 1991, 42 U,S,C. !:i 1981 a,

2. The employment practices alleged to he lmlawful were cOnll11itted within the jurisdiction of the United States District Court for the Eastern District of Michigan.

PARTIF,S

3. Plaintiff, the Eq,lal Employment OpPOltunity Commission (the "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(f)(1) and (3) ofTi!le VII, 42 U.S.c. §§ 20000-5(/)(1) and (3).

4. At all relevant times, Defendant has continuously conducted business in the State of Michigan, City of Warren, and has continuously had at least 15 employees.

5. At all relevant times, Defendant Employer has continuously been an employer

engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g), and (h) of Title Vll, 42 U.S.C. §§ 2000e(b), (g), and (h).

CONCILIATION 6. Prior to the institution of this lawsuit, (he Commission's reprcscntati ves attempted to eliminate the unlawful employment practices alleged and to effect voluntary compliance with

Title Vll through informal methods of conciliation, conference, and persuasion within the meaning of Section 706 (b) ofTitle VII, 42 U.S.c. 8ec(ioI12000c-5(b).

STATEMENT OF CLAIMS

7.

More than thirty days prior (0 the institution of tilis lawsuit, Bischoff filed a

charge with (he Commission alleging violations of Title VII by Defendant Employer. All

conditions precedent to the instit~Ltion of this lawsuit have been fulfilled.

8. Since at least May 21)06, DcJendant Employer has engaged in unlawful

2

employment practices at its Warren, Michigan 8ite in violation of Section 703(a) and 704(a) of
* Title vrr, 42 U.S.C. 2000e-2(a), 3(a), The Defendant's tmlawful cmplo}.ment practices include

pennitting Bischoff to b(l sexually harassed by a co-worker and subjected to a hostile work

envirolUllent, and temlinatillg Bischoff in retaliation for her complaint that she had been sllbjected to a hostile work environment because of sexual harassment.

9. pervasive.

The incidents of sexual harassment at the Defendant's facility were severe and

10. Defendant had notice that Bischoffwas being sexually-harassed by a co-worker

and otherwisc subjected to a hostile work environment. The harassment included, hut is not limited to, the following incidents:

a. Repeated comments about erecl penises;

b. A discussion ofmimed nccrophilia; and

c. Discllssion of a photograph of the co-worker's bare bllttocks and scrotum.

11. The effect of the conduct complained of in Paragraph 10 above was (0 create a hostile work environment.

12. The effect orthe unlawful conduct complained of in paragraphs 8-10, above, has

been to deprive Bischoff of equal employment opportunities and othelwisc adversely to atIect her status as an employee.

13. The unlawful employment practices complained of above were intentional.

14, As the reslllt of the llnlawful employment practices, Bischoffhas suffered

emotion.al distress, embarrassment, humiliati()n, and inconvenience.

15. The unlawful employment practices complained above were done with malice or

3

Witll reckless indifference to tlle federally protected rights of Bischoff. PRAYER FOR RELIEF
Wherefore, (he Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in
retaliation against those who take actions protected by Title VII.
B. Order Defendant Employer 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 unlawflll employment practices.
C. Order the Defendant Employer to make whole Bischoff, by providing appropriate aUomey fees resulting from the retaliatory complaint with prejudgment interest, in amounts to be determined at trial, and other alllnnative relief necessary to eradicate the e±Iects of its unlawful employment practices.
D. Order Defendant Employer to make whole Bischoft~ by providing compensation for past pecuniary losses resulting from the unlawful employment practices described in paragraph 8-10 above in amounts to be proven at trial.
E. Order Defendant Employer to make whole BischofTby providing compensation for past nonpecuniary losses resulting from tho lln lawful practices complained of in paragraph 8-10 ahove in amounts to he proven at trial.
F. Order Defendant Employer to pay Bischoffpunitivc damages for its malicious or reckless conduct descrihed in paragraph 8-10 above, in amounts to be proven at trial.
G. Order Defendant Employer to provide training to its owncrs and employees
4

regarding the duties and obligations of employers under Title VII, inci uding specific training on

Title VIT's prohibitions against sexual harassment and retaliation.

H. interest.

Grant such further relief as (he Court deems necessary and proper in the public

I.

Award the Commission its costs of this action.

JURY TRIAL DEMAND The Commission requests ajury tria! on all questions or fact raised by its complaint.

DATED:

Respectfully submitted,
}~L::",,:-::-=::-
DALE PRICE (P55578) Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
DETROIT FIELD OFFICE Patrick V. McNamara Building 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Telephone: (313)226-7808/6584(fax) E-Mail: da!c.pnce@eeoc.gov

5

JS 44 11/99

CIVIL COVER SHEET COUNTVtNWHICHTHtSACTIONARose:£ACOMB

The JS-44 civil cover sheet and the information contamed herein neither replace nor supplement the filing and sarviOO of pleadings or olher papers as required by law. except as provided by toe.,1 rules of court. This form. approved by the Jlldic;;i;;d Conference Of tM United States in September 1974, is required for USe of the Clerk of Court for the purpose of Initiating the civil docket sheet.

I. (a) PLAINTIFFS

DEFENDANTS

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ROCKET ENTERI'RISR, TNC.

(b) County of Residence of First Listed

Coonty of Residence of F'1(st Llsted

MACOMB

CaSe: 2:06-cv-14319

(C) Attorney's (Firm Name, Address, .and Telephone l'Jumbet)

Assigned To: Cox, Sean F

Dale Price (P55578), Equal Employment Opportunity

Referral Judge Morgan, Virginia M Filed 09·29-2006 At 03:15 PM

Commission, 477 Michigan Avenue, Room 865

CMP EEOC V. ROCKET ENTERPRISE, INCO

Detroit. Ml 4R2?,1i n Bl 22(i-7~OR
S". 0",,) II. BASIS OF .JURISDICTION (PI.", an "X" in On<

II

RPORATED (JTC)

III. CITIZE"'.t'loMIt"" VI"' r--I"U ..............AL r1\I\IILd {place IIIn 1\ 1" lJIlH DU~ lur I""ltlnllnl

, ~
fI!l1 , GO\l'9mmtlnt
Plaintiff

n 3 Federol Que.lion (U.S, Governmenl Not. Porty)

(For Oivens.ity Ci!l5elio Only)

PtA DEF

n n Citizen of This State

I I

<lind Ot'll!l Bo)l' tor Defendant)
n 04 PlA DEF
Incorporated or Principal Place 4
of BUsiness In This State

4

2 U,S. Government Defendant

r'l 4 Diver••y
(Indicate Citizenship of Parties
in I~m til)

IV. NATURE OF SUIT
CONTH1'>.CT

(Place an "X" in One Box OnlY) TORTS

02 Citiz:eh of Anothl.'!lr [J 2
Cijj~en or Subject of a r'~1 3 []3 Foreion COIlI1trv

l i I l Incorporated and Principal

5 5

of Business In Anotl1er Stale

Foreign Nation

0 6 I.. I 6

PORFETTIIRF./PF.NAJ.TY

BANKRUPTCy

OTHER. ST,ATtlTES

n i 1 OlnslJr'ilnc:e
0 120 Marine
u 1~MilierAr;t
0 140 NegrnJ~bje Instrument 0 150 ~ero\lery of
Overpayment .-.nd Enforcement af Jlld!}me("l1
0 151 Medicare Act
0 152 kecol/sry of Defauhed 5tudet't1 Loans (Exd Veterans}
LI 153 ~1I';;(I\I~j1 vf OVtll'p$~ml!lf1i of V",tcran's Benefits
0 160 $tockhOlder:l' Suits
n 190 otherClmtraci
CJ 195 COtilla..,i Produc~ Liability
REAL PROPERTY
I"J 210 land CQndemnlilltiQn 0 220 Foreclosure
0 no Aanllcoase & E.Jedmctnt
0 2040 Tort'! t() V\n.:.1 0 245 Tpl1 Produd t..iablllly 0 290 All Othaor RC!!lIIl Pti::lpc!!ri.y

PERSOf'lAL INJUff:Y
n 310 Alrpillorle
0 315 Airplane Product liability
U 320 A$ssult Libel
An~ Slij;lnd~r
0 330 F&t!l;Ir;:l1 Employers'

PERSONAL tNJURY U n U 362 Pergonallnjury~
Med, M~lpraetlCi! 0
. 0 36S ~"rn~.u"c'tl!.ISI"IIM~ 1.1

1', 366 A$1:l~lo$ Per-sonsl 0

Injury Product Liability

n

Liability
U 340 Marine
n 345 M;'lI'Ir,e' Product
UQI)lIlty
0 350 Motor V~t'ticloe! 0 355 Motor VehICle
product Liability
0 360 othel" Pet$¢l'l31 Injury

II

P~RSONALPROPE~lY

o 370 Other Fraud

U

U 371 Truth in Lending
o 380 Other Personal

Property Da.ma.ge U 385 Properly D<'Im~ge

0

Product liability 0

CIVIL RIGHTS PRISONER PETITIONS

0

0 441 vcul'Ig

I..t 51 0 Motions to Vacate

l>d 442 Employment

S~III~nc:~

0

0 443 Houo(ngl

Hlibeali CorpU.:i:

AIXOtT'l11O\.la1iuf11l

0 530GC:!t1C:!tl'll

0

0 444 weltere

11 5% Death p(ln~l)l

n 440 Oihe:r Civil Rigl\iS 0 540 Ml:lnliYnu5 &Other 0

0 550 Civil Rights

0 555 prlaoo COndition

G10 Agriculture
a20 Oltlei rood &. Orug
625 Drug Rt:ilzllild Seizure (It prq1I!~Y 11' M1
630 lIQYQr l~w$
6..0 RR. &. Truck
650 Airline Regs. 660 OQ;l.lp<IIiiQn<,'
Safety/Heatth 600 other
LABOR
710 I'AI(I.lIMr~tl;lntl;ml$
Ad
720 LsbOfIMgmt. Relations
730 Lal>orlfl.1gmt Reporting & OisdCl.5ul1l Ad
740 RailWay' labOr Act
790 other Labor
Liti!1~lion
79:1 Empl. Ret. Inc. Sec;l,nity A~

0 4n Appeal 26 uSC His
0 423 Wrthdraw,,' 26USG157
PRI)P~H1Y F!.I("..HTS
U 82.0 Copyrights. 0 630 Patent U 840 Trade-mark
SOCIAl.. SEC,\,JRllY
fJ 861 HIA (1 395m 0 862 8lad< Lung (923) U $B3 phiVl:;JlllwN (40~191) 0 864 $$10 Title XVI U ,65 RSI (.05(0))
FEDERAL TAX SUITS
n 870 Tall:es (U.S. Pl",inliff
DI Defendant)
o 8711f(S~Third Party
26 USC 7609

U 400 state RNpportlMni.nt n 41 O.Ai1ijtrl,nt
o 430 E!.ank!l and Banking
U 450 Common;::.eflCC
U 460 Dep~rt1AIIQI1

0

470 Ract\eteerlrrtl~Qljld& Cooupt OfganlUlUons

U 810 Selective SelViee
o 850 $etu ritiell.iCom n'IoIJ Il!t!e/
E1OC.hange
o 875 Cu$'tQmltl:t CMlIeflg8 12 USC 30410
u 891 Agricultural Act;
o 992 Economic SlQ~liz.ti(ln Act o 893 I:t'lvlrof'lll'lentet Mattef9 o 8~ Enel1lY Allocation Act o 895 Freedom 01
Infl)rmiltiQtl Ad
o !:IOO 1f~~[i:t~ UMtif Eqt)..1Ac.c:Il.$.$lo Ju~tice

U 9SO Constitutionali\y af State Statutes
t'l e90 OIt1~ StaMtry ArJj(lf'15

V. ORIGIN

(PLACE AN "X' IN ONE BOX ONLY)

~~- n ~roceedriiginna!l;l

2 Removed from $1.J!I\e Cc)urt

D 3 Remanded from
Appellate Court

U 4 R~celinJPsctanete(ld

Transferred from

I'J n • another di.:!itrict ~ «poo'fy)

Multi dl'.trict

Lltl'13t I)I'l

VI. CAUSE OF ACTION (cite the u.s. Civil Statute under which YOU am filing ~nd wrnl: brieh,t~l'Jn1 Q:f e;ltllll1ilt
Dl) n()t die Jurl!l;dtdlonal !ttatutes unless tllverslty.,

Appeal to
o DilrtriK;l 7 Judge from
Matgl$tr*tc

Thi. i. an action under Title VII of Iho Civil RighlS Act of 1'164 and Title I of the Civil Rights Act of 1991 to correct unlawful employment

n nr~,...ti(',r'<.: nn thr' h~<.:il,l "t" ~t'YIIf41 h~)rAc:.::m"'nt '!'Inri t'...t'!'lll~ti... n

VII. REQUESTED IN

CHECKtFTHISISACLASSACTION

$ DCMl'.N "

II

COMPLAINT:

,UNDER F.R.C.P. 23

No

VIII. RELATED eASElS) instructions): IF ANY

JUDGE

DOCKET NUMBER

DATE

SO~~C\l~LOb

/

\

PURSUANT TO LOCAL RULE 83.11

1. .

Is this a case that has been previously dismissed?

If yes, give the following infonnation:
Court: ____________________________________

Case No.: ______________________ Judge: ______________________________

DYes
I&l No

2.

Other than stated above, are there any pending or previously

discontinued or dismissed companion cases in this or any other

DYes

I&l court, including state court? (Companion cases are matters in which
it appears substantially similar evidence will be offered or the same

No

or related parties are present and the cases arise out of the same

transaction or occurrence.)

If yes, give the following information: Court: _________________________________

Case No.: ____________________----'__________'Judge: ~__________________

Notes:

 
 Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

Case No. 06-14319

Hon. Sean F. Cox

ROCKET ENTERPRISES, INC.,

Defendant. ______________________________________________________________________________

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for summary judgment. Both

parties have briefed the issues and a hearing was held November 15, 2007. For the following

reasons, the Court DENIES Defendant’s Motion for summary judgment.

I. BACKGROUND

This action arises out of the alleged wrongful termination of Mary Bischoff, by

Defendant, Rocket Enterprises, Inc. The Plaintiff in this action is the Equal Employment

Opportunity Commission (“EEOC”).

Defendant is a small company owned and managed by Charles Bowers. Charles Bowers’

brother, Jerald Bowers, runs the service department. Defendant installs, sells and maintains

flags. Bischoff was employed by Defendant as a flag sewer.

In 2006, Defendant opted to start doing flag repairs in-house, rather than sending the

work out. Defendant hired Janice Cleghorn and Bischoff in March 2006. Allegedly, based on

1

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 2 of 11
cost considerations, Charles Bowers decided to terminate one of the flag sewers. Jerald Bowers recommended that Bischoff be terminated allegedly based on several factors: (1) Cleghorn was the first flag sewer hired; (2) Cleghorn was the better employee; and (3) based on the trouble caused by Bischoff. Bischoff was terminated on May 5, 2006 and has not been replaced. Defendant has since gone back to out-sourcing flag repair.
During her employment, Bischoff contends she was subjected to sexually explicit conversations from a radio talk show listened to by a co-worker, Al. Bischoff also alleges that Al told sexually explicit jokes. On the morning of May 5, 2006, Bischoff claims she went to speak to Jerald Bowers about her concerns. While speaking with Jerald, Bischoff used the phrase “sexual harassment.” It is Bischoff’s contention that from that moment, Jerald’s demeanor changed. She says that approximately ten minutes later Jerald returned to her work area and asked her to follow him to a conference room. In the conference room, Bischoff and Jerald were joined by the office manager, Lisa Adams. Jerald informed Bischoff she was being terminated because business was slow. Bischoff expressed her belief that she was being fired for complaining about sexual harassment. Charles Bowers came out of his office and according to Bischoff, told her she was an antagonizer and she could call an attorney.
On September 29, 2006, the Equal Employment Opportunity Commission filed a Complaint on behalf of Bischoff. The Complaint stated a claim for both sexual harassment and retaliation. However, Plaintiff indicates in its Response to Defendant’s Motion that it only intends to proceed on the claim for retaliation. [Response, p.5, n.1]. Defendant filed the instant Motion on August 13, 2007.
II. STANDARD OF REVIEW
2

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 3 of 11
Under Fed. R. Civ. P 56(c), summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995). A fact is “material” and precludes a grant of summary judgment if “proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle[s] of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). The court must view the evidence in the light most favorable to the nonmoving party and it must also draw all reasonable inferences in the nonmoving party’s favor. Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
III. ANALYSIS In this case, Plaintiff alleges that Bischoff was terminated because she reported sexual harassment. “In an action under Title VII, the plaintiff may prove unlawful retaliation by presenting direct evidence of such retaliation or by establishing a prima facie case under the McDonnell Douglas framework.” Abbott v. Crown Motor Company, Inc., 348 F.3d 537, 542 (6th Cir. 2003). Here, the parties proceed under the McDonnell Douglas framework. To establish a prima facie case of unlawful retaliation under Title VII, the plaintiff must establish that: (1) she engaged in an activity that Title VII protects; (2) defendant knew that she engaged in this protected activity; (3) the defendant subsequently took an employment action adverse to the plaintiff; and (4) a causal connection between the protected activity and the adverse employment action exists. Id. “The burden of establishing a prima facie case in a
3

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 4 of 11
retaliation action is not onerous, but one easily met.” Id. If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse action. Id. If the defendant meets this burden, the plaintiff must then establish that the proffered reason was a mere pretext for discrimination by establishing that the proffered reason: (1) has no basis in fact; (2) did not actually motivate the adverse action; or (3) was insufficient to motivate the adverse action. Id. “If the plaintiff demonstrates that the defendant’s proffered, non-discriminatory reason is a pretext, then the fact finder may infer unlawful retaliation.” Id. (emphasis original). “Throughout the entire McDonnell Douglas framework, the plaintiff bears the burden of persuasion.” Id.
A. Prima Facie Case Defendant argues that Plaintiff fails to establish a prima facie case because Plaintiff cannot establish a causal connection between Bischoff’s complaint of sexual harassment and her termination. Defendant contends that temporal proximity alone is insufficient. The law is murky in the Sixth Circuit with respect to the impact of temporal proximity alone on satisfying the fourth prong of the prima facie case. In general, temporal proximity alone is insufficient to establish a causal connection. The Sixth Circuit has stated “[a]lthough temporal proximity itself is insufficient to find a causal connection, a temporal connection coupled with other indicia of retaliatory conduct may be sufficient to support a finding of a causal connection.” Randolph v. Ohio Dept. of Youth Services, 453 F.3d 724, 737 (6th Cir. 2006). One of the cases relied on in Randolph is Nguyen v. City of Cleveland, 229 F.3d 559 (6th Cir. 2000). In Nguyen, the court cited with approval its holding in an unpublished case, that “temporal proximity in the absence of other evidence of causation is not sufficient to raise an
4

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 5 of 11
inference of a causal link.” Id. at 566 (citing Parnell v. West, 1997 WL 271751, *2-3 (6th Cir. 1997)). Yet, the Nguyen court went on to note that in Parnell it also stated that “cases that have permitted a prima facie case to be made based on the proximity of time have all been short periods of time, usually less than six months.” Id. at 566-567. Finally, the Nguyen court conceded “there may be circumstances where evidence of temporal proximity alone would be sufficient to support that inference.” Id. at 567.
The Sixth Circuit came closer to identifying what “circumstances” it was referring to in DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004). In DiCarlo, the court held “[w]ith regard to ... establishment of a ‘causal connection’ between the protected activity and the adverse employment action ... that the adverse action was taken shortly after the plaintiff’s exercise of protected rights is relevant to causation.” The DiCarlo court further noted “this Circuit has embraced the premise that in certain distinct cases where the temporal proximity between the protected activity and the adverse employment action is acutely near in time, that close proximity is deemed indirect evidence such as to permit an inference of retaliation to arise.” Id. More recently, in Denhof v. City of Grand Rapids, 494 F.3d 534, 544 n.9 (6th Cir. 2007), the Sixth Circuit held “the temporal proximity between a plaintiff’s protected activity and the adverse employment action can satisfy the causal connection requirement.”
For purposes of this case, it is not necessary to parse out exactly what circumstances, or amount of time, are sufficient without more to establish a causal connection. This is clearly one of the “distinct cases” described in DiCarlo, because the adverse action was allegedly within ten minutes of the protected activity. This is “acutely near” enough that Plaintiff establishes a causal connection.
5

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 6 of 11
B. Legitimate Nondiscriminatory Reason Because Plaintiff establishes a prima facie case, the burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for terminating Bischoff’s employment. Defendant satisfies its burden by asserting that it terminated Bischoff for economic reasons. Defendant alleges that it was too costly to retain two flag sewers, and Defendant did not replace Bischoff after her termination. C. Pretext Plaintiff has the burden of establishing that Defendant’s proffered reason is pretext by establishing: (1) it has no basis in fact; (2) it did not actually motivate the adverse action; or (3) it was insufficient to motivate the adverse action. Abbott, 348 F.3d at 542. Defendant argues that Plaintiff’s only evidence of pretext is temporal proximity between Bischoff’s complaint to Jerald Bowers, and her termination. Defendant contends this is insufficient to withstand summary judgment. Plaintiff argues that in this case, the temporal proximity is sufficient. Further, Plaintiff argues that in addition to the temporal proximity, there is also evidence that Bischoff was not terminated for economic reasons. Plaintiff directs the Court to Bischoff’s testimony where she claims Jerald Bowers’ entire demeanor changed after she mentioned sexual harassment. [Response, Exhibit L, p.23]. Further, Bischoff testified that she was rushed out as soon as she was informed she was being terminated. According to her testimony, both Charles and Jerald Bowers immediately shouted for someone to bring a box to pack Bischoff’s things. [Response, Exhibit L, pp. 27, 33]. Bischoff contends that upon being fired she began to suffer a panic attack and an ambulance was called. While she was on the stretcher, she claims Charles Bowers asked her for her keys so he could get her car off the
6

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 7 of 11
company lot. [Response, Exhibit L, p.33]. Further, although Defendants allege Bischoff was
terminated because business was slow, she testified that Jerald Bowers planned to hire her daughters to work during the summer. [Response, Exhibit L, pp.100-101].1
Plaintiff’s argument that the temporal proximity alone is sufficient to establish pretext is
unpersuasive. To support its argument, Plaintiff directs the court to Singfield v. Akron Metropolitan Housing Authority, 389 F.3d 555 (6th Cir. 2004).2 In Singfield, the plaintiff worked
for a housing commission. He was suspended after an altercation with his supervisor. Along
with the suspension, the plaintiff was required to complete anger management counseling, and
could not return to work until released by the counselor. When the counselor was ready to
release the plaintiff, the defendant informed the counselor of additional allegations of violence
against plaintiff it learned from co-workers. The counselor referred the plaintiff to a
psychologist who did not release the plaintiff for work. The plaintiff filed a discrimination claim
with the EEOC. Three months after filing the discrimination charge, the plaintiff’s employment
was terminated. The plaintiff alleged his termination was in retaliation for filing the
1In the brief, Plaintiff also argues that Charles Bowers told Bischoff she was “an antagonizer” and that she could call an attorney. [Response, p.8]. However, Plaintiff failed to cite to any evidence, and this exchange was not included in the deposition excerpt provided. Thus, the Court did not consider this remark in the analysis.
2Plaintiff also directs the Court to DiCarlo, supra, where the court states that in certain cases temporal proximity alone is deemed indirect evidence “such as to permit an inference of retaliation to arise.” DiCarlo, 358 F.3d at 421. However, the court clearly was not holding that temporal proximity alone was sufficient to establish pretext. The court was dealing only with the causal connection prong of the prima facie case, the cases cited by the DiCarlo court, in this circuit and others, confirms the point the court was making with that statement. Further, the court stated “[b]ecause the district court did not address issues of whether a non-discriminatory reason existed to justify DiCarlo’s termination, and whether DiCarlo could prove that the given reason was a pretext for retaliation, we need not engage in that analysis here.” Id. at 422. Thus, even if the statement was meant as Plaintiff argues, it would clearly be dicta.
7

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 8 of 11
discrimination charge. The district court granted summary judgment on the retaliation claim, but the Sixth Circuit reversed. The court found the plaintiff had established a prima facie case, and thus the court should exercise caution before granting summary judgment. The court held “[i]n light of Singfield’s argument that the temporal proximity of the discrimination charge and his termination gives rise to an inference of retaliation, we conclude that he has satisfied the sufficiency standard at the summary judgment phase.” Id. at 565.
In contrast, the Sixth Circuit explicitly held that temporal proximity, standing alone, is not enough to withstand summary judgment in Skrjanc v. Great Lakes Power Service Company, 272 F.3d 309 (6th Cir. 2001). In Skrjanc, the plaintiff was terminated approximately one month after informing his employer that he needed to take a leave of absence under the Family and Medical Leave Act (“FMLA”). With respect to the prima facie case, the court noted that “the proximity in time between Skrjanc’s request for leave and his discharge constitutes indirect evidence of a causal connection between his exercise of a right under the FMLA and the adverse employment decision.” Skrjanc, 272 F.3d at 314. The only admissible evidence the plaintiff had on the issue of pretext, was the temporal proximity. The Skrjanc court held “such temporal proximity is insufficient in and of itself to establish that the employer’s nondiscriminatory reason for discharging an employee was in fact pretextual.” Id. at 317 (citing Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1397-1398 (10th Cir. 1997) and White v. Simpson Industries, Inc., 2001 WL 45240 (6th Cir. 2001)). See also Holley v. Giles County, 165 Fed.Appx. 447, 451-452 (6th Cir. 2006)(“even a strong temporal connection, without more, is insufficient to withstand summary judgment”); Heady v. United States Enrichment Corporation, 146 Fed.Appx. 766, 770-771 (6th Cir. 2005)(“While temporal proximity is sufficient to meet the low burden required to establish a
8

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 9 of 11
prima facie case of retaliation in violation of the FMLA, it is not alone sufficient to establish that an employer’s legitimate, non-discriminatory reason for discharge was a pretext.”); and Thompson v. Ameritech Advertising Services, 40 Fed.Appx. 90, 93 (6th Cir. 2002)(“temporal proximity, standing alone, is not sufficient evidence of pretext”).
Although there is an apparent conflict between the holdings of Singfield and Skrjanc, this court is bound to follow Skrjanc. When a later filed decision of the Sixth Circuit conflicts with a prior published decision, the district court is bound to follow the earlier case. Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). As the Darrah court noted “a panel of this Court cannot overrule the decision of another panel...[t]he prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Id. at 309. Skrjanc is a published opinion that was decided prior to Singfield. Thus, to the extent that Singfield is in conflict with Skrjanc, this court applies the holding of Skrjanc. Accordingly, Plaintiff must present evidence of pretext in addition to temporal proximity, in order to withstand summary judgment.
In addition to the temporal proximity, Plaintiff submits Bischoff’s testimony regarding Jerald Bowers’ demeanor change after she mentioned sexual harassment; the way she was rushed out; and that despite any cost concerns, her daughters were supposed to work during the summer. This evidence, coupled with the extremely short temporal proximity between her complaint of sexual harassment and her termination are sufficient to establish pretext.
The Sixth Circuit addressed evidence of a similar nature in Asmo v. Keane, Inc., 471 F.3d 588 (6th Cir. 2006). In Asmo, the plaintiff alleged her employment was terminated in violation of
9

Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 10 of 11
the Pregnancy Discrimination Act. 42 U.S.C. § 2000e(k). Approximately two months after informing her employers that she was pregnant with twins, the plaintiff was terminated. After finding the plaintiff established a prima facie case, based in part on the temporal proximity, the court turned to the issue of pretext. The court found that the most significant evidence showing pretext was plaintiff’s supervisor’s conduct after the plaintiff announced her pregnancy. “The news was met with congratulations from all her colleagues except Santoro, who did not comment and then ‘simply moved on to the next business topic in the conference call.’” Asmo, 471 F.3d at 594. “Santoro’s initial silence is suspect...[p]regnancies are usually met with congratulatory words, even in professional settings.” Id. In addition, the court noted that the plaintiff’s supervisor did not mention her pregnancy again until her termination. Ultimately, the court found “Santoro’s silence could be interpreted as discriminatory animus.” Id. at 595. The court did recognize that there are other possible explanations for Santoro’s silence, but “where we examine evidence in the light most favorable to the non-moving party, we believe that [plaintiff’s] argument is sufficient to call into question Santoro’s motives.” Id.
Similarly, in this case, although there are other explanations for Defendant’s conduct, it is suspect that as soon as Bischoff mentioned sexual harassment, Jerald Bowers’ demeanor changed. The expected response would be to investigate the situation, or talk to the accused coworker. Instead, Defendant abruptly terminated Bischoff’s employment and made extreme attempts to get her off the premises, including asking her for her keys while she was being taken to an ambulance on a stretcher. This, coupled with the ten minutes between Bischoff’s complaint and her termination, is enough to establish pretext.
IV. CONCLUSION
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Case 2:06-cv-14319-SFC-VMM Document 23 Filed 11/19/2007 Page 11 of 11 For the foregoing reasons, the Court DENIES Defendant’s Motion for summary
judgment. IT IS SO ORDERED. S/Sean F. Cox Sean F. Cox United States District Judge
Dated: November 19, 2007 I hereby certify that a copy of the foregoing document was served upon counsel of record on November 19, 2007, by electronic and/or ordinary mail.
S/Jennifer Hernandez Case Manager
11

 
 Case 2:06-cv-14319-SFC-VMM Document 28 Filed 01/18/2008 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.

Case No. 2:06-cv-14319 Hon. Sean F. Cox Judge Virginia M. Morgan

ROCKET ENTERPRISES, INC., Defendant.

___________________________________/ LAURIE A. YOUNG DEBORAH M. BARNO (P44525) NEDRA D. CAMPBELL (P58768) DALE R. PRICE, JR. (P EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Counsel for Plaintiff 477 Michigan Ave., Room 865 Detroit, Michigan 48226 (313) 226-3410/6584 (fax) ___________________________________/

RALPH J. SIRLIN (P24635) REOSTI, JAMES & SIRLIN, P.C. Counsel for Defendant
23880 Woodward Avenue Pleasant Ridge, Michigan 48069 (248) 691-4200/4207 (fax)

STIPULATED ORDER TO DISMISS PLAINTIFF’S SEXUAL HARASSMENT AND HOSTILE WORK ENVIRONMENT CLAIM WHEREAS on September 29, 2006, Plaintiff filed its Complaint against Defendant wherein it alleged Defendant engaged in unlawful employment practices, including permitting the Charging Party, Mary Bischoff (hereinafter “Bischoff”), “to be sexually harassed by a coworker and subjected to a sexually hostile work environment, and terminating Bischoff in retaliation for her complaint that she had been subjected to a sexually hostile work environment because of sexual harassment”; WHEREAS the parties are hereby agreed that Plaintiff’s sexual harassment and hostile work environment claim shall be dismissed;

Case 2:06-cv-14319-SFC-VMM Document 28 Filed 01/18/2008 Page 2 of 2

WHEREAS the parties are hereby agreed that the only remaining cause of action is Plaintiff’s Title VII retaliation claim;

THEREFORE IT IS HEREBY STIPULATED AND AGREED, by and between the above-named parties through their respective counsel, that Plaintiff’s sexual harassment and hostile work environment cause of action is hereby dismissed with prejudice.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ROCKET ENTERPRISES, INC.

s/ Nedra Campbell NEDRA CAMPBELL (P58768) Trial Attorney DETROIT DISTRICT OFFICE Patrick V. McNamara Federal Building 477 Michigan Ave, Room 865 Detroit, Michigan 48226 (313) 226-3407

s/ Ralph Sirlin (w/ permission) RALPH J. SIRLIN (P24635)
Reosti, James & Sirlin PC Attorneys for Defendant 23880 Woodward Avenue Pleasant Ridge, Michigan 48069 (248) 691-4200

Dated: 01/10/2008

Dated:

ORDER

Based on the forgoing stipulation of the parties, IT IS SO ORDERED.

January 18, 2008 Date

s/ Sean F. Cox Hon. Sean F. Cox United States District Judge

2

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

Case No. 06-14319

Hon. Sean F. Cox

ROCKET ENTERPRISES, INC.,

Defendant. ______________________________________________________________________________

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL

This matter is before the Court on Plaintiff’s Motion for New Trial. Plaintiff argues the

Court erred by giving Jury Instructions 25A and 27 because the instructions give the definition

of a sexually hostile environment. Plaintiff objected to these two instructions at trial, but agreed

to the remaining jury instructions. Plaintiff also challenges the verdict form in this Motion,

arguing that it does not address the ultimate issue. However, Plaintiff did not object to the

verdict form at trial. For the following reasons, the Court DENIES Plaintiff’s Motion for New

Trial.

I. BACKGROUND

This action arises out of the alleged wrongful termination of Mary Bischoff, following

her alleged report of sexual harassment. The underlying facts are sufficiently set forth in the

parties’ Joint Final Pre-trial Order [Doc. 27], and the parties’ Trial Briefs [Docs. 29 and 40].

Trial commenced in this action on January 29, 2008. During the course of the trial, the

1

parties agreed on all jury instructions except instructions 25A and 27. The issue was whether the legal definition of a sexually hostile environment should be given. On February 5, 2008, this Court issued a ruling on the disputed jury instructions and gave the jury an instruction defining what constitutes a sexually hostile environment. The instruction was accompanied with the admonition that Plaintiff was not required to prove that a hostile environment actually existed, only that Bischoff’s report was reasonable under that standard. Plaintiff objected to the instruction.
The jury returned a verdict in favor of Defendant. On February 22, 2008, Plaintiff filed the instant Motion for New Trial, arguing that the Court erred by giving jury instructions 25A and 27 and because the verdict form did not address the “ultimate issue.” Defendant filed a Response on March 11, 2008.
II. STANDARD OF REVIEW Following a jury trial, FRCP 59(a) provides that the court may grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” “The Supreme Court has noted that ‘the authority of trial judges to grant new trials’ pursuant to Rule 59(a) ‘is large.’” Bell v. Johnson, 404 F.3d 997, 1002 (6th Cir. 2005)(citing Gasperini v. Center for the Humanities, Inc., 518 U.S. 415, 433 (1996)). “The district court, in considering a motion for a new trial, must weigh the evidence, compare the opposing proofs, and set aside the verdict if it is of the opinion that the verdict is against the clear weight of the evidence.” Woodbridge v. Dahlberg, 954 F.2d 1231, 1234 (6th Cir. 1992). The court should deny the motion “if the verdict is one which could reasonably have been reached.” Id. “The verdict is not unreasonable simply because different inferences and conclusions could have been drawn or
2

because other results are more reasonable.” Id.
With respect to allegedly erroneous jury instructions, “[o]bvious and prejudicial error in
instructing the jury constitutes grounds for a new trial even if the party assigning the instructions
as error failed to object before the trial court.” Fryman v. Federal Crop Ins. Corp., 936 F.2d
244, 248 (6th Cir. 1991). “The critical inquiry with regard to jury instructions is ‘whether the
instructions as a whole provide the jury with sufficient guidance concerning the issues to be
tried.’” Id. (citation omitted).
III. ANALYSIS
The jury instructions at issue stated:
Statutorily protected activity includes, among other things, opposing sexual harassment in the workplace, and can range from filing formal charges to voicing informal complaints to superiors.
To constitute protected activity, Mary Bischoff must have had a reasonable, good faith belief that the conduct she complained of was unlawful, i.e., for the purposes of this case, constituted a sexually-hostile work environment.
[Jury Instruction 25A, “Protected Activity”].
A hostile work environment occurs when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive enough to alter the conditions of the victim’s employment and create an abusive working environment.
The determination of whether a work environment is sexually hostile includes consideration of the frequency of discriminatory conduct, its severity, whether it was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee’s performance. Simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.
For the purposes of this case, Plaintiff does not need to prove that a sexually hostile work environment actually existed, only that Mary Bischoff reasonably and in good faith believed that it did.
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[Jury Instruction 27 “Definition of a Sexually Hostile Work Environment”]. Plaintiff contends these instructions were erroneous because they require that “an
employee who has made a sexual harassment complaint engages in protected activity only if the employee reasonably believes that the conduct she has complained of constitutes legally actionable sexual harassment.” [Motion, ¶2]. Plaintiff further asserts that the allegedly erroneous jury instructions caused the jury to reach a “seriously erroneous result.” [Motion, ¶4]. According to Plaintiff, “the jury instructions are fundamentally flawed because they improperly framed the issue of whether Mary Bischoff engaged in protected activity in terms of whether she was complaining about conduct that had actually ripened into legally actionable conduct.” [Motion, pp.13-14].
As an initial matter, the Court was careful to point out that Plaintiff was not required to prove that a sexually hostile environment actually existed. The jury was read this instruction and given individual written copies including this admonition.
A. What Claim did Plaintiff Assert? First, it is important to clarify what claim went to trial. The claim that proceeded to trial was Plaintiff’s claim that Defendant violated Title VII by “terminating Bischoff in retaliation for her complaint that she had been subjected to a hostile work environment because of sexual harassment.” [Complaint, ¶8]. In this Motion, Plaintiff appears to argue that Bischoff’s complaint alleged “sexual harassment” independent from a claim for a sexually hostile environment. Such a claim does not exist. There are two types of “sexual harassment” prohibited by Title VII, quid pro quo harassment and harassment which creates a sexually hostile environment. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751 (1998)(“Cases based
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on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.”); Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 872 (6th Cir. 1997)(rev’d on other grounds)(“Courts have recognized two types of workplace sexual harassment as constituting discrimination on the basis of sex: quid pro quo harassment, in which a supervisor requests sexual favors in exchange for job benefits, and ‘hostile work environment’ harassment, in which a pervasive atmosphere of sexual harassment creates an objectively hostile work environment.”); and Kauffman v. Allied Signal, Inc., 970 F.2d 178, 182 (6th Cir. 1992)(“Case law recognizes two types of sexual harassment: 1) harassment that creates an offensive or hostile environment; and 2) quid pro quo harassment, in which a supervisor demands sexual favors as a condition of job benefits.).
Plaintiff directs the Court to 29 C.F.R. § 1604.11,1 in an apparent effort to establish a distinction between a “sexually hostile work environment” claim and an undefined “sexual harassment” claim. This regulation identifies three situations in which sexual harassment may be found, the second one being when the proscribed conduct is submitted to or rejected, and that submission or rejection is the basis for an employment decision. This definition would include quid pro quo cases where a sexual advance or demand for a sexual favor is requested in
1The language the Plaintiff appears to rely on is contained in 29 C.F.R. § 1604.11(a), in pertinent part: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individuals’ employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
5

exchange for a promotion or other favorable treatment. Presumably, Plaintiff’s argument is that 29 C.F.R. § 1604.11(a)(2) creates a sexual harassment claim where an employee’s rejection of any of the proscribed conduct is used as the basis for termination, independent of whether the conduct creates a hostile environment. However, Plaintiff does not identify any authority to support this interpretation, which would create a third form of sexual harassment conduct prohibited by Title VII. This interpretation is contrary to the case law cited above, which recognizes two types of claims - one for cases involving request or threats for sexual favors, etc., i.e. quid pro quo cases; and one for cases involving sexual remarks that are severe and pervasive enough to constitute a sexually hostile environment.
Notably, Plaintiff did not offer this regulation at trial and did not present the Court with any legal definition of sexual harassment it would have preferred the Court give over the definition of a sexually hostile environment.
“As an administrative interpretation of [Title VII] by the enforcing agency, [EEOC] Guidelines, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Savings Bank, v. Vinson, 477 U.S. 57, 65 (1986)(citations omitted). Assuming that Plaintiff’s presumed interpretation of § 1604.11(a)(2) is correct, the Court does not find it persuasive in light of the relevant case law defining the types of claims cognizable under Title VII.
Consequently, the conduct complained of had to fall into either the category of quid pro quo or hostile environment in order to be actionable, otherwise, it would not constitute “sexual harassment.” The conduct complained of by Bischoff was meant to allege a sexually hostile
6

environment as opposed to a quid pro quo situation. B. What is Protected Activity? Title VII protects two types of retaliation actions, participation and opposition. 42 U.S.C.
§ 2000e-3(a). Plaintiff’s claim for retaliation for reporting a sexually hostile environment is brought under the opposition clause of Title VII. A claim falls under the participation clause of Title VII when the protected activity involves making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding or hearing under Title VII. Booker v. Brown & Wiliamson Tobacco Co., Inc., 879 F.2d 1304, 1312 (6th Cir. 1989)(citation omitted). A claim is brought under the opposition clause when it involves opposing a violation of Title VII. Id. “The distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.” Id. Plaintiff admits this claim is an opposition claim, but argues that “an employee is protected under § 704(a) when she opposes conduct that could amount to unlawful discrimination under Title VII.” [Motion, p.13](emphasis original). Further, Plaintiff asserts it was error for the Court to instruct the jury that “in order to prevail, Bischoff must have believed that she was complaining about a legally actionable sexually hostile work environment.”2 [Motion, p.13].
Plaintiff is correct that the employee does not “bear the entire risk that [the conduct complained of] is in fact lawful,” and the jury instructions reflected as much. Booker, 879 F.2d at 1312. However, Plaintiff seems to go further and assert that any complaint made by an
2Again, it must be noted that the Court did not instruct the jury that Bischoff’s complaints had to be about conduct that actually created a sexually hostile environment, as Plaintiff suggests here. The jury instructions required only that Bischoff reasonably believed that it did.
7

employee to a supervisor is protected activity. This is incorrect. It is well-settled that “the opposition clause does not protect all ‘opposition’ activity.” Id. “Courts are required ‘to balance the purpose of the Act to protect persons engaging reasonably in activities opposing discrimination, against Congress’ equally manifest desire not to tie the hands of employers in the objective selection and control of personnel.” Id. As the Supreme Court noted, Title VII does not prohibit all workplace harassment, even harassment between men and women is not automatically a violation of Title VII “merely because the words used have sexual content or connotations.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).
In Clark County School District v. Breeden, 532 U.S. 268 (2001), the Supreme Court found that a plaintiff asserting a claim of retaliation did not engage in protected activity because a reasonable person could not believe the conduct she complained of violated Title VII. In Clark, the plaintiff was a school district employee who during the course of reviewing applications witnessed a co-worker read aloud a sexually explicit comment from one of the applications. The co-worker, and the plaintiff’s supervisor, made a nondescript remark and chuckled about the comment from the application. The plaintiff complained of the incident and was allegedly terminated as a result. The plaintiff filed a retaliation claim under Title VII. The Court began by noting “sexual harassment is actionable under Title VII only if it is ‘so severe or pervasive’ as to ‘alter the conditions of the victim’s employment and create an abusive working environment.’” Id. at 270. The Court also reiterated that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Id. at 271. The Court held that “[n]o reasonable person could have believed that the single incident...violated Title VII’s standard.” Id.
8

The holding in Clark makes clear that in order for a retaliation claim to be actionable under Title VII, the person complaining must have reasonably believed the conduct complained of violated Title VII. In the event that reported conduct is not serious enough that a reasonable person could believe it violated Title VII, a claim for retaliation will not lie. Clark, 532 U.S. at 271. Plaintiff appears to misunderstand this proposition. Plaintiff asserts in its Motion, as support of this Court’s error, that “pursuant to Jury Instructions Nos. 25A and 27, opposing sexual harassment under an employer’s sexual harassment policy would not constitute ‘protected activity.’” [Motion, p.8]. However, depending on the circumstances and the scope of the employer’s sexual harassment policy, it is true that complaining of “sexual harassment” prohibited by an employer’s policy may not rise to the level of “protected activity” for purposes of Title VII. In the example given by Plaintiff, Plaintiff notes that an employer may broadly define sexual harassment. Where an employer’s policy broadly defines sexual harassment to prohibit conduct that could not reasonably be considered sexual harassment under Title VII, complaining of that conduct is not protected activity. Of course, if the employer has made a policy proscribing particular conduct, there likely would be consequences from the employer for engaging in the prohibited action. But, this is not relevant for purposes of this case, the focus for deciding whether particular conduct is “sexual harassment” under Title VII does not depend on whether it is offensive, or prohibited by an employer’s private policy, but whether it is prohibited by Title VII.
This is consistent with the Court’s definition of what is required to assert a sexually hostile environment claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Court held that Title VII is violated when the workplace is permeated with discriminatory intimidation,
9

ridicule, and insult, sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The Court noted that the reason for this standard is to forge a middle ground between “making actionable any conduct that is merely offensive” and requiring actual psychological injury in order to sustain a claim. Id. The Court stated that a “mere utterance of an epithet which engenders offensive feelings in a [sic] employee does not sufficiently affect the conditions of employment to implicate Title VII.” Id. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive working environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII’s purview.” Id. The purpose of this requirement is to protect employers from malicious accusations and frivolous claims by requiring the complaining employee to demonstrate a good faith, reasonable belief that the challenged practice violates Title VII. Parker v. Baltimore And Ohio Railroad Company, 652 F.2d 1012, 1020 (D.C. Cir. 1981). Without this objective component, an employee would be free to continually complain about benign comments that only offend their subjective sensitivities and an employer would be prevented from reproaching the employee for the nuisance complaints for fear of litigation.
C. Is Plaintiff Entitled to a New Trial? To establish a prima facie case of unlawful retaliation under Title VII, the plaintiff must establish that: (1) she engaged in an activity that Title VII protects; (2) defendant knew that she engaged in this protected activity; (3) the defendant subsequently took an employment action adverse to the plaintiff; and (4) a causal connection between the protected activity and the adverse employment action exists. Abbott v. Crown Motor Company, Inc., 348 F.3d 537, 542 (6th Cir. 2003). As Plaintiff asserts, “a violation of Title VII’s retaliation provision can be found
10

whether or not the challenged practice ultimately is found to be unlawful.” Johnson v. University of Cincinnati, 215 F.3d 561, 579-580 (6th Cir. 2000). However, the opposition voiced by the plaintiff must “be based on ‘a reasonable and good faith belief that the opposed practices were unlawful.’” Id. at 579 (citation omitted).
1. Were the jury instructions erroneous? The Jury Instructions given in this case, including Instructions 25A and 27, were an accurate description of the law. In order for the jury to determine whether Bischoff was reasonable in believing that the conduct she complained of violated Title VII, the jury had to be told what it is that violates Title VII. To do otherwise would be to allow the jury to decide for itself what constitutes sexual harassment under Title VII. Accordingly, the jury was instructed on what conduct may constitute a sexually hostile environment - and was also told that Plaintiff did not have to prove that such an environment actually existed, only that Bischoff had to be reasonable in believing that the conduct she complained of met this standard. Moreover, it was proper to limit the potential “unlawful conduct” for the jury’s consideration to only sexually hostile environment because that was the only unlawful conduct possible based on Plaintiff’s allegations and the evidence presented. Plaintiff is not entitled to a new trial on the basis of erroneous jury instructions.
2. Was the jury’s verdict erroneous? Because the jury was required to follow the allegedly erroneous jury instructions, Plaintiff claims the verdict was “seriously erroneous.” [Motion, p.10]. Plaintiff does not allege any other basis for attacking the verdict. The sufficiency of the evidence is not in question. The jury’s verdict was not erroneous because the jury instructions were an accurate
11

description of the law. Accordingly, Plaintiff is not entitled to a new trial on the basis that the verdict was “seriously erroneous.”
3. Was the verdict form erroneous? The verdict form contained the following question on the issue of liability: Do you find from a preponderance of the evidence that Mary Bischoff engaged in protected activity known to Defendant and that the protected activity was the determining factor in her termination from employment? [Doc. 60]. Plaintiff contends the verdict form is erroneous because it allowed the jury to avoid answering the ultimate question “whether Defendant terminated Bischoff in retaliation for her sexual harassment complaint.” [Motion, p.10]. According to Plaintiff, “the ultimate question of whether the Defendant engaged in ‘discrimination vel non’ went unanswered.” [Motion, p.12].3 Plaintiff’s argument is unavailing. There is no authority that a jury verdict form tracking the prima facie elements is erroneous. Plaintiff misunderstands the concept of “vel non.” The purpose of “vel non” is that “once there has been a trial on the merits, an appellate court can not revisit whether the plaintiff established a prima facie case.” Kovacevich v. Kent State University, 224 F.3d 806, 822 (6th Cir. 2000). In Imwalle v. Reliance Medical Products, Inc., --- F.3d ----, 2008 WL 340450, *9 (6th Cir. 2008)(citing U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)), the court held “a party framing its argument on appeal in prima facie terms, after a jury trial on the merits, has ‘unnecessarily evaded the ultimate question of discrimination vel non.’” The point of this is to prevent the “rigid, mechanized, or ritualistic” use of the McDonnell-Douglas burden shifting framework in discrimination cases. Aikens, 460 U.S.
3Notably, Plaintiff did not object to the verdict form and submitted the language at issue in its Proposed Jury Instructions filed February 3, 2008. [Doc. 55].
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at 715. However, a jury is not prevented from ruling on the prima facie elements of a retaliation
claim. In Kovacevich, the court held it was not error for the district court to submit to the jury the question of whether the plaintiff established a prima facie case. Kovacevich, 224 F.3d at 824. The court noted that “the elements of a prima facie case can indeed go before a jury” but, “in reviewing a trial that proceeds beyond the prima facie stage, neither the district court nor appellate court should refocus on the question of whether a plaintiff established her prima facie case.” Id. Also, in Brown v. Packaging Corporation of America, 338 F.3d 586, 593 (6th Cir. 2003), the court held that it is not reversible error for the trial court to instruct the jury on the McDonnell-Douglas analysis, which includes the determination of whether the plaintiff established a prima facie case.
In this case, whether the evidence supports a finding that Plaintiff was retaliated against in violation of Title VII is not before the Court. Additionally, whether the evidence presented by Plaintiff established a prima facie case is not before the Court. Plaintiff filed the instant Motion for New Trial arguing only that the jury instructions and verdict form were not accurate interpretations of the law, and thus the resulting verdict was “seriously erroneous.” The Court is not asked to rule on whether the evidence supported a verdict for either party. Thus, the cases cited by Plaintiff regarding discrimination vel non are inapplicable to this Motion because this Motion does not request review of the verdict on the merits. In addition, the verdict form submitted to the jury is not erroneous merely because it includes the prima facie elements of retaliation.
Violation of 42 U.S.C. § 2000e-3(a) for retaliation explicitly requires that an employee be
13

discriminated against for opposing “any practice made an unlawful employment practice.” The jury instructions as a whole and the verdict form accurately explain the relevant law to enable the jury to determine whether there has been a violation. Therefore, Plaintiff is not entitled to a new trial.
IV. CONCLUSION For the foregoing reasons, the Court DENIES Plaintiff’s Motion for a New Trial. IT IS SO ORDERED.
S/Sean F. Cox Sean F. Cox United States District Judge Dated: March 18, 2008 I hereby certify that a copy of the foregoing document was served upon counsel of record on March 18, 2008, by electronic and/or ordinary mail. S/Jennifer Hernandez Case Manager
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 Case: 2:06-cv-14319 As of: 11/18/2019 04:53 PM EST 1 of 7
CLOSED,APPEAL,JURY_TRIAL,MEDIATION,REOPENED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:06−cv−14319−SFC−VMM

Equal Employment Opportunity Commission v. Rocket Enterprise, Incorporated Assigned to: District Judge Sean F. Cox Referred to: Magistrate Judge Virginia M. Morgan
Case in other court: U.S. Court of Appeals − Sixth Circuit, 08−01799
Cause: No cause code entered
Plaintiff

Date Filed: 09/29/2006 Date Terminated: 02/07/2008 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Nedra D. Campbell Equal Employment Opportunity Commission 477 Michigan Avenue Room 865 Detroit, MI 48226 313−226−3410 Email: nedra.campbell@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale R. Price , Jr. Equal Employment Opportunities Commission 477 Michigan Avenue Suite 865 Detroit, MI 48226 313−226−7808 Email: dale.price@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Rocket Enterprise, Incorporated

represented by Ralph J. Sirlin Reosti & Sirlin, P.C. 322 W. Lincoln Ave. Suite 200 Royal Oak, MI 48067 248−691−4200 Fax: 877−588−6652 Email: rjsirlin@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2006 11/02/2006
11/29/2006

# Docket Text
1 COMPLAINT filed by Equal Employment Opportunity Commission against Rocket Enterprise, Incorporated.(THal, ) (Entered: 10/02/2006)
2 CERTIFICATE of Service/Summons Returned Executed. Rocket Enterprise, Incorporated served on 10/10/2006, answer due 10/30/2006. (Campbell, Nedra) (Entered: 11/02/2006)
3 ATTORNEY APPEARANCE: Ralph J. Sirlin appearing on behalf of Rocket Enterprise, Incorporated.(Sirlin, Ralph) (Entered: 11/29/2006)

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11/29/2006 11/29/2006 11/30/2006 12/05/2006 01/10/2007 01/12/2007 02/12/2007 02/12/2007
03/07/2007 03/12/2007 03/19/2007
04/09/2007 05/03/2007 05/03/2007 07/18/2007 08/13/2007
08/13/2007 08/23/2007 09/04/2007 10/04/2007

4 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Rocket Enterprise, Incorporated.(Sirlin, Ralph) (Entered: 11/29/2006)
5 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Rocket Enterprise, Incorporated.(Sirlin, Ralph) (Entered: 11/29/2006)
6 [DOCUMENT FILED IS TITLED "SUBSTITUTION OF COUNSEL"]. NOTICE of Withdrawal of Attorney Dale R. Price, Jr by Equal Employment Opportunity Commission. (Price, Dale) Modified on 11/30/2006 (THal, ). (Entered: 11/30/2006)
7 NOTICE TO APPEAR: Scheduling Conference set for 1/16/2007 02:00 PM before Honorable Sean F Cox. (JHer, ) (Entered: 12/05/2006)
8 AMENDED NOTICE TO APPEAR: Scheduling Conference set for Tuesday, 1/16/2007, 02:00 PM before Honorable Sean F Cox. (JHer, ) (Entered: 01/10/2007)
9 NOTICE TO APPEAR: Rescheduled Scheduling Conference set for 2/12/2007 02:00 PM before Honorable Sean F Cox. (JHer, ) (Entered: 01/12/2007)
Minute Entry −Scheduling Conference held on 2/12/2007 before Honorable Sean F Cox. (JHer, ) (Entered: 02/12/2007)
10 SCHEDULING ORDER: Final Pretrial Conference set for 1/15/2008 03:00 PM before Honorable Sean F Cox. Motion Cut−off set for 8/13/2007 Trailing Trial Docket set for January/February 2008. Discovery due by 7/12/2007. Signed by Honorable Sean F Cox. (Refer to image for additional dates)(JHer, ) (Entered: 02/12/2007)
11 MOTION to Compel Discovery by Equal Employment Opportunity Commission. (Campbell, Nedra) (Entered: 03/07/2007)
12 ORDER REFERRING MOTION to Magistrate Judge Virginia M Morgan: 11 MOTION to Compel Discovery filed by Equal Employment Opportunity Commission. Signed by Honorable Sean F Cox. (JHer) (Entered: 03/12/2007)
13 NOTICE of hearing on 11 MOTION to Compel Discovery : Responses due by 3/28/2007; Resolved/Unresolved Issues due by 4/4/2007; and Motion Hearing set for 4/9/2007 01:30 PM before Honorable Virginia M Morgan. (JJoh) (Entered: 03/19/2007)
14 STIPULATION AND ORDER on 11 Plaintiff's Motion to Compel − Signed by Honorable Virginia M Morgan. (JJoh) (Entered: 04/09/2007)
15 WITNESS LIST by Equal Employment Opportunity Commission (Campbell, Nedra) (Entered: 05/03/2007)
16 WITNESS LIST by Rocket Enterprise, Incorporated (Sirlin, Ralph) (Entered: 05/03/2007)
17 ORDER REFERRING CASE to Mediation. Signed by Honorable Sean F Cox. (THal) (Entered: 07/19/2007)
18 MOTION for Summary Judgment by Rocket Enterprise, Incorporated. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 Jerald Bowers Dep Tr.# 3 Exhibit 2 Charles Bowers Dep Tr.# 4 Exhibit 3 Rocket Enterprises 1099s# 5 Exhibit 4 Bischoff Wage Detail# 6 Exhibit 5 Bischoff Hour Detail) (Sirlin, Ralph) (Entered: 08/13/2007)
19 STATEMENT of of Material Facts Not in Dispute by Rocket Enterprise, Incorporated (Sirlin, Ralph) (Entered: 08/13/2007)
20 NOTICE of hearing on 18 MOTION for Summary Judgment. Motion Hearing set for 11/15/2007 02:00 PM before Honorable Sean F Cox. (JHer) (Entered: 08/23/2007)
21 STIPULATION AND ORDER Extending Time to File Response as to 18 MOTION for Summary Judgment : Responses due by 10/4/2007 Signed by Honorable Sean F Cox. (JHer) (Entered: 09/04/2007)
22 RESPONSE to 18 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Counter−Statement of Disputed Facts# 2

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11/15/2007
11/19/2007 12/03/2007 01/07/2008 01/15/2008
01/16/2008 01/16/2008
01/16/2008 01/18/2008
01/21/2008 01/21/2008
01/21/2008 01/21/2008 01/21/2008 01/21/2008
01/21/2008 01/21/2008 01/22/2008

Index of Exhibits List of Exhibits# 3 Exhibit A− Rocket Advertisement for two part−time seamstresses# 4 Exhibit B − Application for Employment, Janice Cleghorn# 5 Exhibit C − Application for Employment, Mary Bischoff# 6 Exhibit D − Notes from Interview# 7 Exhibit E − Time Card Reports of Janice Cleghorn# 8 Exhibit F − Time Card Reports of Mary Bischoff# 9 Exhibit G − Invoice for Sewing Machine# 10 Exhibit H − Abbott v. Crown Motor Co.# 11 Exhibit DiCarlo v. Potter# 12 Exhibit J − Singfield v. Akron Metro. Hous. Auth.# 13 Exhibit K − Excel Spreadsheet# 14 Exhibit Excerpts of Deposition Transcripts) (Campbell, Nedra) (Entered: 10/04/2007)
Minute Entry −Motion Hearing held on 11/15/2007 re 18 MOTION for Summary Judgment filed by Rocket Enterprise, Incorporated before Honorable Sean F Cox. Disposition: Taken Under Advisement(Court Reporter Marie Metcalf) (JHer) (Entered: 11/15/2007)
23 ORDER denying 18 Motion for Summary Judgment. Signed by Honorable Sean F Cox. (JHer) (Entered: 11/19/2007)
24 ORDER Establishing Trial Docket. Signed by Honorable Sean F Cox. (JHer) (Entered: 12/03/2007)
25 ATTORNEY APPEARANCE: Dale R. Price, Jr appearing on behalf of Equal Employment Opportunity Commission (Price, Dale) (Entered: 01/07/2008)
Minute Entry −Final Pretrial Conference held on 1/15/2008 before Honorable Sean F Cox. Disposition: Held and continued to 1/16/08 at 2:00 p.m. (JHer) (Entered: 01/16/2008)
Minute Entry −Final Pretrial Conference held on 1/16/2008 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 01/16/2008)
26 ORDER REGARDING TRIAL. Jury Trial set for 1/24/2008 08:30 AM before Honorable Sean F Cox Signed by Honorable Sean F Cox. (JHer) (Entered: 01/16/2008)
27 JOINT FINAL PRETRIAL ORDER − Signed by Honorable Sean F Cox. (DWor) (Entered: 01/17/2008)
28 STIPULATED ORDER DISMISSING Plaintiff's Sexual Harassment and Hostile Work Environment Claim. Signed by Honorable Sean F Cox. (ATee) Modified on 1/22/2008 (Schoenherr, S.). (Entered: 01/20/2008)
29 TRIAL BRIEF by Equal Employment Opportunity Commission (Campbell, Nedra) (Entered: 01/21/2008)
30 MOTION in Limine to Strike Defendant's Defense that Plaintiff Does Not Have Prima Facie Case by Equal Employment Opportunity Commission. (Campbell, Nedra) (Entered: 01/21/2008)
31 MOTION in Limine to Exclude Wilson Industries Records Post Termination by Equal Employment Opportunity Commission. (Campbell, Nedra) (Entered: 01/21/2008)
32 Proposed Voir Dire by Equal Employment Opportunity Commission (Price, Dale) (Entered: 01/21/2008)
33 Proposed Jury Instructions by Equal Employment Opportunity Commission (Price, Dale) (Entered: 01/21/2008)
34 MOTION in Limine To Exclude Defendant from Offering Inadmissible Testimony at Trial by Equal Employment Opportunity Commission. (Price, Dale) (Entered: 01/21/2008)
35 Proposed Jury Instructions by Rocket Enterprise, Incorporated (Sirlin, Ralph) (Entered: 01/21/2008)
36 Proposed Voir Dire by Rocket Enterprise, Incorporated (Sirlin, Ralph) (Entered: 01/21/2008)
37 ORDER Resetting Trial Date and Hearing re 30 MOTION in Limine to Strike Defendant's Defense that Plaintiff Does Not Have Prima Facie Case filed by Equal

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01/22/2008 01/22/2008 01/25/2008 01/25/2008 01/27/2008
01/27/2008 01/27/2008 01/28/2008
01/28/2008 01/28/2008 01/28/2008 01/28/2008 01/29/2008 01/29/2008 01/29/2008 01/30/2008

Employment Opportunity Commission, 34 MOTION in Limine To Exclude Defendant from Offering Inadmissible Testimony at Trial filed by Equal Employment Opportunity Commission, 31 MOTION in Limine to Exclude Wilson Industries Records Post Termination filed by Equal Employment Opportunity Commission. Voir Dire reset for 1/29/2008 08:30AM. Motion Hearing reset for 1/28/08 at 8:30AM before Honorable Sean F Cox Signed by Honorable Sean F Cox. (JHer) (Entered: 01/22/2008)
38 Exhibit List by Equal Employment Opportunity Commission. (Campbell, Nedra) (Entered: 01/22/2008)
39 Trial Exhibit List by Rocket Enterprise, Incorporated. (Sirlin, Ralph) (Entered: 01/22/2008)
40 TRIAL BRIEF by Rocket Enterprise, Incorporated (Sirlin, Ralph) (Entered: 01/25/2008)
41 RESPONSE to 31 MOTION in Limine to Exclude Wilson Industries Records Post Termination filed by Rocket Enterprise, Incorporated. (Sirlin, Ralph) (Entered: 01/25/2008)
42 [FILING ERROR: DOCUMENT FILED IS TITLED "RESPONSE TO 30 MOTION IN LIMINE TO EXCLUDE DEFENDANT FROM OFFERING INADMISSIBLE TESTIMONY AT TRIAL]. RESPONSE to 30 MOTION in Limine to Strike Defendant's Defense that Plaintiff Does Not Have Prima Facie Case filed by Rocket Enterprise, Incorporated. (Sirlin, Ralph) Modified on 1/28/2008 (Hallwood, T.). (Entered: 01/27/2008)
43 RESPONSE to 30 MOTION in Limine to Strike Defendant's Defense that Plaintiff Does Not Have Prima Facie Case filed by Rocket Enterprise, Incorporated. (Sirlin, Ralph) (Entered: 01/27/2008)
44 RESPONSE to 34 MOTION in Limine To Exclude Defendant from Offering Inadmissible Testimony at Trial filed by Rocket Enterprise, Incorporated. (Sirlin, Ralph) (Entered: 01/27/2008)
Minute Entry −Motion Hearing held on 1/28/2008 re 30 MOTION in Limine to Strike Defendant's Defense that Plaintiff Does Not Have Prima Facie Case filed by Equal Employment Opportunity Commission, 31 MOTION in Limine to Exclude Wilson Industries Records Post Termination filed by Equal Employment Opportunity Commission, 34 MOTION in Limine To Exclude Defendant from Offering Inadmissible Testimony at Trial filed by Equal Employment Opportunity Commission before Honorable Sean F Cox. Disposition: Denied, Denied, Denied(Court Reporter Marie Metcalf) (JHer) (Entered: 01/28/2008)
45 EXHIBIT Revised Statement of Case re 33 Proposed Jury Instructions by Equal Employment Opportunity Commission (Price, Dale) (Entered: 01/28/2008)
46 ORDER denying 34 Motion in Limine to exclude Defendant from offering inadmissible testimony at trial. Signed by Honorable Sean F Cox. (JHer) (Entered: 01/28/2008)
47 ORDER denying 31 Motion in Limine to limit admission of Wilson Industries invoices. Signed by Honorable Sean F Cox. (JHer) (Entered: 01/28/2008)
48 ORDER denying 30 Motion in Limine to stike Defendant's defense. Signed by Honorable Sean F Cox. (JHer) (Entered: 01/28/2008)
Minute Entry −Voir Dire begun and concluded on 1/29/2008 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 01/29/2008)
Minute Entry −Jury Impaneled before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 01/29/2008)
Minute Entry −Jury Trial begun on 1/29/2008 and continued to 1/30/2008 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 01/29/2008)
Minute Entry −Jury Trial held on 1/30/2008 and continued to 1/31/2008 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 01/30/2008)

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01/31/2008
01/31/2008 01/31/2008 02/01/2008 02/01/2008 02/01/2008 02/01/2008 02/03/2008 02/04/2008 02/04/2008 02/04/2008
02/05/2008 02/05/2008 02/05/2008 02/05/2008 02/05/2008 02/05/2008 02/05/2008 02/07/2008 02/22/2008
03/07/2008 03/11/2008

49 ORDER Regarding Rebuttal Witness Motion due 1/31/08, Responses due by 2/1/2008, Motion Hearing set for 2/4/2008 08:30 PM before Honorable Sean F Cox Signed by Honorable Sean F Cox. (JHer) (Entered: 01/31/2008)
Minute Entry −Jury Trial held on 1/31/2008 and continued to 2/4/08 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 01/31/2008)
50 MOTION Offer Rebuttal Evidence by Equal Employment Opportunity Commission. (Attachments: # 1 Case law) (Campbell, Nedra) (Entered: 01/31/2008)
51 Proposed Jury Instructions by Equal Employment Opportunity Commission (Price, Dale) (Entered: 02/01/2008)
52 Proposed Jury Instructions by Rocket Enterprise, Incorporated (Sirlin, Ralph) (Entered: 02/01/2008)
53 RESPONSE to 50 MOTION Offer Rebuttal Evidence filed by Rocket Enterprise, Incorporated. (Sirlin, Ralph) (Entered: 02/01/2008)
54 Proposed Jury Instructions by Rocket Enterprise, Incorporated (Sirlin, Ralph) (Entered: 02/01/2008)
55 Proposed Jury Instructions by Equal Employment Opportunity Commission (Price, Dale) (Entered: 02/03/2008)
Minute Entry −Jury Trial held on 2/4/2008 and continued to 2/5/2008 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 02/04/2008)
56 Proposed Jury Instructions by Equal Employment Opportunity Commission (Price, Dale) (Entered: 02/04/2008)
58 Joint Revised Proposed Post−Trial Jury Instructions and Special Verdict Form by Equal Employment Opportunity Commission, Rocket Enterprise, Incorporated. (DWor) (Entered: 02/06/2008)
57 ORDER Regarding Jury Instructions 25A and 27. Signed by Honorable Sean F Cox. (JHer) (Entered: 02/05/2008)
Minute Entry −Jury Trial held on 2/5/2008 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 02/05/2008)
Minute Entry −Jury Deliberation Begun and Concluded before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 02/05/2008)
Minute Entry −JURY VERDICT before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 02/05/2008)
Minute Entry −Jury Trial completed on 2/5/2008 before Honorable Sean F Cox. (Court Reporter Marie Metcalf) (JHer) (Entered: 02/05/2008)
59 Sealed Matter (DTyl) (Entered: 02/07/2008)
60 JURY VERDICT FORM (DTyl) (Entered: 02/07/2008)
61 JUDGMENT in favor of Defendant against Plaintiff Signed by Honorable Sean F Cox. (JHer) (Entered: 02/07/2008)
62 MOTION for New Trial by Equal Employment Opportunity Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 −− Jury Instruction No. 25A, # 3 Exhibit 2 −− Jury Instruction No. 27, # 4 Exhibit 3 −− Verdict Form, # 5 Exhibit 4 −− 29 CFR 1604.11, # 6 Exhibit 5 −− EEOC v. Crown Zellerbach, # 7 Exhibit 6 −− Lewis v. City of Irvine, # 8 Exhibit 7 −− Reynolds v. Green) (Campbell, Nedra) (Entered: 02/22/2008)
63 ORDER Requiring Response to 62 Motion for New Trial. Response due: 3/11/2008. Signed by Honorable Sean F Cox. (JHer) (Entered: 03/07/2008)
64 RESPONSE to 62 MOTION for New Trial filed by Rocket Enterprise, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 JI No. 23, # 3 Exhibit 2 EEOC Compliance Manual Section 8b) (Sirlin, Ralph) (Entered: 03/11/2008)

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03/18/2008 03/27/2008 03/28/2008 04/02/2008 05/01/2008 05/06/2008 05/15/2008 05/15/2008 05/15/2008 05/27/2008 07/02/2008
08/18/2008
08/18/2008
08/18/2008
08/18/2008
08/18/2008

65 ORDER denying 62 Motion for New Trial. Signed by Honorable Sean F Cox. (JHer) (Entered: 03/18/2008)
66 BILL OF COSTS by Rocket Enterprise, Incorporated (Attachments: # 1 Exhibit Invoices to Bill of Costs) (Sirlin, Ralph) (Entered: 03/27/2008)
67 COSTS TAXED in amount of $ 264.00 against plaintiff. (DPer) (Entered: 03/28/2008)
68 OBJECTION to 67 Costs Taxed by Rocket Enterprise, Incorporated. (Sirlin, Ralph) (Entered: 04/02/2008)
69 PETITION for Attorney Fees by Rocket Enterprise, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A Fee Attorney Time Sheet) (Sirlin, Ralph) (Entered: 05/01/2008)
70 ORDER re 68 Objection filed by Rocket Enterprise, Incorporated to the Court's Bill of Costs. Signed by District Judge Sean F Cox. (DWor) (Entered: 05/07/2008)
71 RESPONSE to Defendant's Petition for Attorney Fees filed by Equal Employment Opportunity Commission. (Campbell, Nedra) (Entered: 05/15/2008)
72 NOTICE OF APPEAL by Equal Employment Opportunity Commission. Fee Status: No Fee Paid. (Campbell, Nedra) (Entered: 05/15/2008)
73 Certificate of Service re 72 Notice of Appeal. (DHam) (Entered: 05/15/2008)
74 ORDER Denying 69 Petition for Attorney Fees filed by Rocket Enterprise, Incorporated Signed by District Judge Sean F Cox. (JHer) (Entered: 05/27/2008)
Court Reporter Acknowledgment of Transcript Order Form received on 07/01/08. Transcript for court proceeding held on: 01/29/08, 01/30/08, 01/31/08, 02/04/08, 02/05/08. Estimated transcript completion date: 08/14/08. Estimated number of pages: 700. Payment arrangements were made on 07/01/08. (Metcalf, M) (Entered: 07/02/2008)
75 TRANSCRIPT of Voir Dire held on 01/29/08. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 87) Redaction Request due 9/8/2008. Redacted Transcript Deadline set for 9/18/2008. Release of Transcript Restriction set for 11/17/2008. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 08/18/2008)
76 TRANSCRIPT of Jury Trial − Volume One of Five held on 01/29/08. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 44) Redaction Request due 9/8/2008. Redacted Transcript Deadline set for 9/18/2008. Release of Transcript Restriction set for 11/17/2008. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 08/18/2008)
77 TRANSCRIPT of Jury Trial − Volume Two of Five held on 01/30/08. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 157) Redaction Request due 9/8/2008. Redacted Transcript Deadline set for 9/18/2008. Release of Transcript Restriction set for 11/17/2008. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 08/18/2008)
78 TRANSCRIPT of Jury Trial − Volume Three of Five held on 01/31/08. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 148) Redaction Request due 9/8/2008. Redacted Transcript Deadline set for 9/18/2008. Release of Transcript Restriction set for 11/17/2008. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 08/18/2008)
79 TRANSCRIPT of Jury Trial − Volume Three of Five (Addendum) held on 01/31/08. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 8) Redaction Request due 9/8/2008. Redacted Transcript Deadline set for 9/18/2008. Release of Transcript

Case: 2:06-cv-14319 As of: 11/18/2019 04:53 PM EST 7 of 7

08/18/2008
08/18/2008
08/18/2008 02/03/2009

Restriction set for 11/17/2008. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 08/18/2008)
80 TRANSCRIPT of Jury Trial − Volume Four of Five held on 02/04/08. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 48) Redaction Request due 9/8/2008. Redacted Transcript Deadline set for 9/18/2008. Release of Transcript Restriction set for 11/17/2008. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 08/18/2008)
81 TRANSCRIPT of Jury Trial − Volume Five of Five held on 02/05/08. (Court Reporter/Transcriber: Marie Metcalf) (Number of Pages: 95) Redaction Request due 9/8/2008. Redacted Transcript Deadline set for 9/18/2008. Release of Transcript Restriction set for 11/17/2008. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Metcalf, M) (Entered: 08/18/2008)
82 Notice of Filing APPEAL Transcript. (Metcalf, M) (Entered: 08/18/2008)
83 ORDER from U.S. Court of Appeals − Sixth Circuit re 72 Notice of Appeal filed by Equal Employment Opportunity Commission − Disposition: dismissed [Appeal Case Number 08−1799] (DHam) (Entered: 02/04/2009)