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Be advised that all parties shall have fourteen (14) days after service hereof to serve and file

any written objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings

or recommendations to which the objections are being made. The District Court need not consider

frivolous, conclusive or general objections. A party's failure to file such written objections to

proposed findings and recommendations contained in this report may bar the party from a de novo

determination by the District Judge of the proposed findings and recommendations. United States

v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file

written objections to the proposed findings and recommendations within fourteen (14) days after

being served with a copy may bar the aggrieved party from appealing the factual findings of the

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

WENDY CABRERA,

Intervenor Plaintiff,

v.

THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC.,

Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion to Strike Catherine Vigil, Shannon Kennedy, Kelly

Teegarden and Lisa Jager as Allegedly Aggrieved Individuals [filed August 10, 2012; docket #142].

Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and to D.C. Colo. LCivR 72.1.C, the matter has been

referred to this Court for disposition or recommendation, as appropriate. For the following reasons,

the Court respectfully recommends that the District Court grant in part and deny in part the

Defendant’s motion.1

Case 1:11-cv-02560-MSK-MEH Document 223 Filed 10/18/12 USDC Colorado Page 1 of 6
Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140,

155 (1985); In re Garcia, 347 F. App’x 381, 382-83 (10th Cir. 2009).

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I. Background

The Court has previously outlined the nature of this case in several orders. Generally, the

EEOC alleges claims of sexual harassment/hostile environment and retaliation under Title VII of

the Civil Rights Act of 1964, as amended (“Title VII”). Its original claim at the administrative level

involved one complainant, Plaintiff-Intervenor Cabrera, who alleged a sexually hostile work

environment against one supervisor (James Jackman, the general manager of one of Defendant’s

stores in Highlands Ranch, Colorado) for a two-month period, March to May 2010, along with an

allegation of retaliation against the Defendant for her termination. Subsequent to the administrative

proceedings, the EEOC’s allegations have included additional aggrieved individuals (including the

original complainant, Wendy Cabrera) who claim to have suffered sex harassment. The EEOC seeks

compensatory and punitive damages in this case.

In the present motion, Defendant seeks to strike the four persons named in the motion’s

caption from participating in this case as aggrieved individuals, on the basis of discovery limitations

which I placed on this lawsuit. Because granting this motion would have an impact on the

individuals’ participation in this case, I am issuing a Recommendation.

II. Discussion

I have presided over proceedings brought by the EEOC in which the length of time in naming

allegedly aggrieved individuals until late in the lawsuit has caused significant delay and expense.

Armed with that background, at the December 20, 2011 scheduling conference in this case, I

discussed a deadline by which the EEOC would identify such individuals so that effective discovery

could take place. The EEOC informed me that Defendant was seeking a deadline of February 20,

2012 for identifying allegedly aggrieved individuals; however, the EEOC contended that this

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deadline would be too early, because the EEOC would need discovery from Defendant in order to

locate and contact persons who claim to have suffered sexual harassment. The parties proposed a

total discovery period of eight months, which is two months longer than the presumptive discovery

period in this District. I determined that permitting a period of four months of discovery for the

EEOC to identify potentially aggrieved individuals, and then four months of discovery for the

Defendant to get the individuals’ stories, was the proper solution. Therefore, I set April 30, 2012

as the deadline to identify potentially aggrieved individuals.

The context of the on-record discussion quoted by the Defendant in its reply brief, and my

own knowledge and understanding of those and subsequent proceedings, establishes that April 30,

2012 was the date by which the EEOC would identify and disclose to the Defendant those

individuals who the EEOC had targeted as aggrieved individuals. Paragraph 8(f) of the Scheduling

Order sets forth the parties’ discussion of this issue in their own words (which I did not alter prior

to docketing the Scheduling Order):

The EEOC and Defendant agree that there will be a date at which

time the EEOC agrees to have disclosed a finalized list of aggrieved

individuals for whom it seeks relief, and the parameters of any relief

it seeks for as yet unidentified aggrieved individuals, if any should

exist. The EEOC and Defendant are unable to agree on that date. The

EEOC contends that the date cannot be demarcated yet as it is

contingent on the EEOC receiving employee information from

Defendant through discovery and having the opportunity to canvass

it. The EEOC intends to ask in its first set of discovery requests for

a complete employee list with contact information . . . . Once

Defendant produces this list, as specified, to the EEOC, the EEOC

requests five (5) months from date of receipt to identify additional

aggrieved individuals and disclose them to Defendant, providing

Defendant with three and a half months to seek discovery of the

added individuals before the close of discovery if Defendant provides

the list to the EEOC in a timely manner.

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This six-month request presumed the EEOC would issue its initial discovery requests

quickly, thus giving one month for Defendant’s response and five months for discovery thereafter.

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I did not agree with either the EEOC (which sought approximately six months2

 in which to “identify

additional aggrieved individuals and disclose them to Defendant”), or Defendant (which argued for

only two months), but instead chose a middle ground of four months.

At the scheduling conference, the following discussion took place concerning this paragraph:

THE COURT: Do you have a list of people right now?

MS. HALPERN: Your Honor, if I may. Yes, we’ve identified all 17 people specifically

already. 

THE COURT: Okay.

MS. HALPERN: We may identify several more after we get certain information we need to

Candace (phonetic).

THE COURT: Well, what’s a fair time for you to stop identifying people in a lawsuit?

MS. HALPERN: Well, we attempted to suggest, and this is another point where the two --

the three parties are in difference with each other. We attempted to suggest that once they

got us the information that we needed, which is mostly employee data information with

contact information and names, that a certain number of months afterwards we would have

had the opportunity to canvas everyone and make known all of the aggrieved individuals that

we are attempting to seek relief for.

Transcript at 9-10 (Docket #41). It was clear to me then, and it is clear to me now, that “identify”

in this context meant “make known all of the aggrieved individuals that [the EEOC is] attempting

to seek relief for.” See id. In my prior experience, and as noted by Defendant in its reply, after

identifying the allegedly aggrieved individuals to the Defendant, some of those individuals might

decide not to participate in the lawsuit. Therefore, I set June 4, 2012 as the deadline by which the

EEOC would inform Defendant whether any of the identified individuals had decided not to

participate. Between April 30 and June 4, 2012, I presumed the EEOC would be speaking with

persons with whom it had already established a relationship in order to discuss and decide whether

those persons wished to go forward.

Ultimately, later in the scheduling conference, I confirmed this understanding of the order

of things in the following colloquy: 

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THE COURT: Well, I assume the EEOC has talked to every one of the 17 people they’ve

identified and they have a Rule 11 good faith basis for including them in a list of people.

MS. HALPERN: Yes, Your Honor, many times.

Id. at p. 18. As of the scheduling conference, the EEOC had identified and disclosed to Defendant

17 persons on whose behalf the EEOC was proceeding. This was the same quality of information

that I expected would be provided to the Defendant by April 30, 2012, memorialized by my use of

the term “identified.”

I disagree that the term “identify” means, as the EEOC suggests, that on or before April 30,

2012, the EEOC was only required to be aware of the existence of individuals such as Catherine

Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager (through employee lists or otherwise) as

employees of the Defendant, and that the disclosure requirement for such persons to the Defendant

was not until June 4, 2012. This would mean that Defendant’s discovery period concerning

allegedly aggrieved individuals would have been cut by more than a month relative to what was

intended in the Scheduling Order. Such an interpretation is wrong.

The deadline for identifying to the Defendant the potentially aggrieved individuals in this

case was April 30, 2012. I have not granted any extension of this deadline, which expired nearly

six months ago. Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager were not

identified in compliance with the Court’s Order. Certainly, these individuals are free to file their

own lawsuits, if they so choose. However, in this case, they should be stricken as allegedly

aggrieved individuals, and I recommend that the Defendant’s motion to strike be granted.

With respect to Defendant’s request for an award of fees pursuant to Fed. R. Civ. P.

37(b)(2)(C), the Court finds that an award would be unjust under the circumstances. Although I

strongly disagree with its position, the EEOC held a good faith belief that the deadline for disclosure

of allegedly aggrieved individuals should be June 4, 2012. Therefore, I recommend that Defendant’s

motion for attorney’s fees be denied.

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III. Conclusion

Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager were not identified on

or before April 30, 2012 pursuant to the Scheduling Order in this case, and the Court has not granted

an extension of this deadline; however, an award of fees in this matter would be unjust. Thus, the

Court respectfully RECOMMENDS that the District Court grant in part and deny in part the

Defendant’s Motion to Strike Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager

as Allegedly Aggrieved Individuals [filed August 10, 2012; docket #142] as set forth herein. 

Dated at Denver, Colorado this 18th day of October, 2012.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

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