1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Honorable Marcia S. Krieger 

Civil Action No. 11-cv-02560-MSK-MEH 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 

 Plaintiff, 

v. 

THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC., 

 

 Defendant. 

Consolidated with: 

Civil Action No. 12-cv-02137-MSK-MEH 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 

 Plaintiff, 

WENDY J. CABREARA, 

 Intervenor-Plaintiff, 

v. 

THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC., 

 Defendant. 

ORDER DENYING DEFENDANT’S 

MOTION TO STRIKE 

 THIS MATTER comes before the Court on Defendant HoneyBaked Ham’s (HBH) 

Motion to Strike Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager as 

Allegedly Aggrieved Individuals (#142). The EEOC filed its Response (#185), and HBH 

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Replied (#204). The matter was referred to the Magistrate Judge, who Recommends (#223) that 

the Motion be granted in part and denied in part. The EEOC Objects (#238) to the 

Recommendation. HBH filed a Response (#249) to the EEOC’s Objections, and the EEOC 

Replied (#258). 

I. Jurisdiction 

 The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 

II. Background 

 The Court recites only those facts that are pertinent to the instant motion. 

 In 2011, the EEOC initiated this action, asserting claims of sex discrimination and 

retaliation. As filed, the Amended Complaint (#6) alleges that sexual harassment and retaliation 

permeated throughout HBH District 8 and was committed by several managers and supervisors. 

 At an initial scheduling conference, the Magistrate Judge set April 30, 2012 as the 

deadline by which the EEOC was to identify each aggrieved individual for whom it seeks relief. 

By separate order, the Magistrate Judge instructed that by June 4, 2012, the EEOC must disclose 

to HBH the names of all aggrieved individuals who wished to participate in the lawsuit. 

 On June 4th, the EEOC notified HBH that it “now represents Messes. Catherine Vigil, 

Shannon Kennedy, Kelly Teegarden and Lisa Jager’s legal interests in this lawsuit.” (These four 

individuals were in addition to 18 previously-identified individuals.) 

 HBH now seeks to “strike” these four women from the group of allegedly aggrieved 

individuals on the basis that they were untimely identified by the EEOC. It further requests an 

award of attorney feeds pursuant to Fed. R. Civ. P. 37(b)(2)(C). The EEOC responds that it was 

aware of the existence of these individuals (and thus, identified them) by April 30th, but it 

simply was unable to communicate with them until after the deadline. 

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 The Magistrate Judge recommends that the Motion be granted as to HBH’s request to 

strike, reasoning that the four individuals were not timely identified. The Magistrate Judge 

further recommends that that HBH’s request for attorney fees denied as unjust under the 

circumstances. 

III. Standard of Review 

When a magistrate judge issues a recommendation on a dispositive motion, the parties 

may file specific, written objections within fourteen days after being served with a copy of the 

recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Here, the EEOC filed timely 

Objections to the Recommendation. The Court therefore reviews the Recommendation de novo. 

U.S. v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 

1996). 

IV. Analysis

First, the Court observes that the instant Motion was filed, and the Recommendation was 

issued, before the Court ruled (#289) on HBH’s Motion to Dismiss. In that Order, the Court 

ruled that the EEOC’s claims in this suit are limited to (1) sex discrimination resulting from a 

hostile work environment created by the sexual harassment of James Jackman, while a manager 

of stores in District 8, and (2) retaliation against employees who engaged in protected activity in 

complaining of Mr. Jackman’s harassment. In its Order, the Court limited the scope of the 

litigation to Mr. Jackman’s conduct while managing stores in District 8. Thus, the instant 

Motion has become moot to the extent that it concerns individuals allegedly harassed by 

someone other than Mr. Jackman. 

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 To whatever extent the Motion remains at issue, it appears to be an attempt to limit any 

award of damages to the EEOC for the benefit of aggrieved individuals.1

 In that respect, it is 

premature.2 The Motion presents an evidentiary issue — HBH essentially seeks to prevent the 

EEOC from presenting evidence about certain aggrieved individuals. But whether such evidence 

should be precluded cannot be determined until it is clear what evidence will be presented at 

trial. 

V. Conclusion 

 For the forgoing reasons, the Court DECLINES to adopt the Recommendation (#223)

and OVERRULES the EEOC’s Objections (#238). The Motion to Strike (#142) is DENIED, 

with leave to renew as a motion in limine with regard to the evidence to be presented at trial. 

 Dated this 13th day of February, 2013. 

BY THE COURT:

 

 Marcia S. Krieger 

 Chief United States District Judge

 

1

 As noted in previous orders, the EEOC brings its own claim and does not stand in the shoes of 

the aggrieved individuals. Thus, the group of aggrieved individuals is relevant only as to the 

amount of damages that the EEOC could potentially recover. 

2

 The Motion also appears to be mislabeled as a “Motion to Strike.” The Federal Rules of Civil 

Procedure do not provide for relief in the form of “striking” individuals. 

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