Case 4:11-cv-03425 Document 1 Filed in TXSD on 09/21/11 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

§

v.

BASS PRO OUTDOOR WORLD, LLC,

Defendant.

§ § §
§ § CIVIL ACTION NO. § § § § JURY TRIAL DEMANDED

ORIGINAL COMPLAINT OF THE
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NATURE OF THE ACTION

This is an action und er Title VII of the Civ il Rights Act of 1964 and Title I of th e Civil

Rights Act of 1991 to correct unlawful e mployment practices on the basis of race, national

origin, and retaliation, and to provi de appropriate relief to Black and Hispanic applicants and to

employees who were adversely affected by such pr actices. As alleged with greater particularity

in paragraphs 8 – 17 below, De fendant has engaged in, and cont inues to engage in, unlawful

discrimination by (1) engaging in a pattern or pr actice of unlawfully failing to hire Black and

Hispanic applicants for positions in its retail stores nationwide; and ( 2) unlawfully retaliating

against a class of e mployees who opposed actions by Defendant that those em ployees perceived

to constitute unlawful employment discrimination. Addition ally, Defendant unlawfully

destroyed records relevant to whether unlawful employment practices have been or are being

committed, in violation of the a pplicable record-keeping regulations set forth in Section 709(c)

of Title VII, 42 U.S.C. § 2000e-8(c).

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JURISDICTION AND VENUE 1. Jurisdiction of this C ourt is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is auth orized and instituted pursuant to Sections 706(f)(1) and (3) and 707 of Title VII of the Civil Rights Act of 1964, as am ended, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and -6 (“Title VII”), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The unlawful employment practices alleged in this com plaint were committed in numerous locations across the United State s, including within the ju risdiction of the United States District Court for the Southern District of Texas, Houston Division. Venue is appropriate in this court.
PARTIES 3. Plaintiff, the Equal Employment Opportunity 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 au thorized to bring this action by Sections 706(f)(1) and (3) and 707 of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3) and -6. 4. At all relevant tim es, Defendant Bass Pro O utdoor World, LLC, a Missouri limited liability company, has continuously been doing business in th e State of Texas and the City of Katy, and has continuous ly had at least 15 em ployees. Defendant may be served with process through its registered ag ent, CT Corporation System, 350 N. St. Paul St., Ste. 2900, Dallas, Texas 75201-4234. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) o f Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
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STATEMENT OF CLAIMS 6. More than thirty days p rior to the institu tion of this lawsuit, a charge was f iled with the Commission by Stuart J. Ishimaru, a member thereof, alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least Novem ber 2005, Defendant has engaged in unlawful employm ent practices at its retail stores and facilities nationwide, in violat ion of Sections 703(a) and 704 of Title VII, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). 8. Defendant has engaged in a pattern or practice of unlawfully failing to hire qualified Black applicants for hourly and salaried pos itions at its retail st ores nationwide. An illustrative example of this co rporate practice occurred around summer 2006, when a recently hired Bass Pro Human Resources Manager interviewed a qualified Black applicant for a position at a Bass Pro store in L ouisiana. An Assistant General Manager -- who had participated in that store’s hiring decisions for years -- told the Human Resources Manager that the candidate “really doesn’t fit our profile.” When the Hum an Resources Manager asked for an explanation why the qualified Black applicant would not be hired, th e Assistant General Ma nager replied “we don’t hire niggers.” Other exam ples of the pattern or practice of discrim ination include, but are not limited to:
a. In 2005, the Store General Manager of a Bass Pro store in the greater Houston area told the Human Resources Manager that “it was ge tting a little dark in here you need to hire some white people.”
b. Several times in late 2008, a departm ent “Lead” in a Bass Pro store in Indiana was seen discarding em ployment applications after he decided that the name on the application “sounded like a ‘nigger name.’” This Lead employee opined that “niggers steal and did not make good employees.”
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9. Defendant’s discriminatory failure or re fusal to hire qualif ied Black applic ants constitutes an unlawful pattern or practice of discrim ination, and/or unlawful discrim ination against a class of Black applicants, in violation of Sections 706 and 707 of Title VII.
10. Defendant has engaged in a pattern or practice of unlawfully failing to hire Hispanic applicants for hourly and salaried po sitions at its retail stores nationwide. As an example, in addition to direc ting a Human Resources Manager to “hire some white people,” the General Manager of a store in the greater Hous ton area would, on a daily basis, use the words “wetback,” “Pedro,” and “Mexican” to refer to people of Hispanic origin. At a store in Indiana, a Lead employee who screened applications stated that “Hispanics should be shot at the border by the border patrol.” Defendant’s discriminatory failure or refu sal to hire qualif ied Hispanic applicants constitutes an unlaw ful pattern or practice o f discrimination, and/or unlawfully discriminates against a class of Hispanic applicants, in violation of Sections 706 and 707 of Title VII.
11. The part-time and full-tim e retail store positions for which Defendant unlawfully failed to hire qualified Blacks and Hispanics include, but are not limited to, cash clerk, cashier, customer relations associate, customer service representative, greeter, loss prevention, receiving clerk, sales associate, stocking associate; and “lead,” “team lead,” and supervisory and managerial positions.
12. Defendant unlawfully retaliated agai nst employees who opposed unlawful employment discrimination by Defendant incl uding, but not lim ited to, the discrim ination described in the foregoing para graphs. Defendant retaliated against employees w ho opposed employment discrimination by altering the term s, conditions, or privileges of their employm ent; bringing false allegations against them; pressuring them to withdraw their complaints; subjecting them to heightened scrutiny; and firing them or inducing their resignations.
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13. Like the evidence of hiring discrim ination, evidence of unlawful retaliation permeates multiple stores in various states. For instance, a managerial employee at an Alabama store complained to a R egional Human Resources Manager that the store General Manager was discriminating against female employees. The store General Manager was inform ed about the complaint, and told his subordina te that she “better not complain about him again.” Later, the managerial employee met with the store General Manager to voice her concerns about retaliation by the store General Manager. Shortly after the meeting had concluded, the employee was fired by the store Human Resources Manager, who advised that the Ge neral Manager had ordered her termination.
14. The effect of the practices com plained of in paragraphs 8-13, above, has been to deprive Black and Hispanic applicants of equal employment opportunities and otherwise adversely affect their s tatus as applicants becau se of their race and/or national origin, and to deprive employees of equal employment opportunities and otherwise adversely affect their status as employees because of their complaints or other activity protected by Title VII.
15. Additionally, Defendant has failed, in viola tion of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to preserve records releva nt to the determ ination of whether unlawful employment practices have been or are being committed. Records whic h Defendant unlawfully failed to retain include, but are not limited to, relevant employment applications and personnel files, tests administered to applicants, lists of job candidates, electronic m essages and audio and documentary records of efforts to contact to the corpo rate complaint center (k nown as the “hotline”).
16. The unlawful em ployment practices com plained of in paragraphs 8-13 and 15 above were and are intentional.
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17. The unlawful em ployment practices com plained of in paragraphs 8-13 and 15 above were and are done with m alice or with reckless indifference to the federally protected rights of Black and Hispanic em ployees and applicants, and to the federall y protected rights of employees who engaged in activity protected by VII.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a pe rmanent injunction enjoining Defendant, its officers , agents, servants, employees, attorneys, successors, assigns, and all pe rsons in active concert or participation with it, from engaging in discrim ination based on race and national origin in its hiring and from retaliating against employees who oppose these and other discriminatory practices, or otherwise engage in activity protected by Title VII. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for Black and Hispanic applicants, and for em ployees who participate in activity pr otected by Title VII or who oppos e practices m ade unlawful by Title VII, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant to m ake whole aggrie ved Black and His panic applicants and employees, and victim s of unlawful retaliatio n as described above, by providing appropriate backpay with prejudgm ent interest, in am ounts to be determined at trial, and other affirm ative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful-place hiring of qualified Black and Hispanic applicants and, where appropriate, re-instatement. D. Order Defendant to m ake and preserve all records, in accordan ce with the provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(c),
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relevant to the dete rmination of whether unlawful em ployment practices have been or are being committed.
E. Order Defendant to m ake whole aggrie ved Black and His panic applicants and employees, and victims of unlawful retaliation as described above, by providing compensation for past and future pecuniary lo sses resulting from the unlawful employment practices described in paragraphs 8-13 and 15 above, including job search expenses, in am ounts to be determined at trial.
F. Order Defendant to m ake whole aggrie ved Black and His panic applicants and employees, and victims of unlawful retaliation as described above, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices com plained of in paragraphs 8-13 and 15 above, including em otional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
G. Order Defendant to pay aggrieved Black and Hispanic applicants and employees, and victims of unlawful retaliatio n as described above , punitive dam ages for its m alicious and reckless conduct described in paragraphs 8-13 and 15 above, in am ounts to be determ ined at trial.
H. Grant such further relief as the Cour t deems necessary and proper in the public interest.
I. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
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Case 4:11-cv-03425 Document 1 Filed in TXSD on 09/21/11 Page 8 of 9

Deputy Gwendolyn Associate
131 Washington,
_/s/_Tim
Texas Southern
1919 Houston, (713)
Rudy
1919 Houston, (713)

Respectfully submitted,
P. David Lopez General Counsel
James L. Lee General Counsel
Young Reams General Counsel Equal Employment Opportunity Commission M Street, N.E.
D.C. 20507
othy_M._Bowne____________ Timothy M. Bowne Senior Trial Attorney Attorney-in-Charge
Bar No. 00793371 Dist. of Texas No. 20023
U.S. Equal Employment Opportunity Commission
Smith Street, 7th Floor Texas 77002
(713) 209-3395 209-3402 [facsimile]
timothy.bowne@eeoc.gov
Sustaita Senior Trial Attorney Texas Bar No. 19523560 Southern Dist. of Texas No. 11850 U.S. Equal Employment Opportunity Commission
Smith Street, 7th Floor Texas 77002
(713) 209-3400 209-3402 [facsimile]
rudy.sustaita@eeoc.gov

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Case 4:11-cv-03425 Document 1 Filed in TXSD on 09/21/11 Page 9 of 9

Gregory
OF COUNSEL: Jim Sacher Regional Attorney Rose Adewale-Mendes Supervisory Trial Attorney Equal Employment Opportunity Commission 1919 Smith Street, 7th Floor Houston, Texas 77002

T. Juge Acting Supervisory Trial Attorney U.S. Equal Employment Opportunity Commission 1555 Poydras Avenue, Suite 1900 New Orleans, LA 70112
Robert D. Rose Supervisory Trial Attorney U.S. Equal Employment Opportunity Commission 33 Whitehall Street, 5th Floor New York, New York 10004

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 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

V.

§

§

BASS PRO OUTDOOR WORLD,

§

LLC, et al.

§

§

Defendants.

§

Case No. 4:11-cv-03425

MEMORANDUM AND ORDER

Before the Court is Defendants’ Motion

to Dism iss First Amended Complaint

(“Motion”). (Doc. No. 32.) After considering the Motion, all responses and replies thereto, and

the applicable law, the Court c oncludes that the Motion should be GRANTED in part and

DENIED in part.

I. FACTS

The Equal Em ployment Opportunity Comm ission (“EEOC”) brings this discrim ination

action against Bass Pro Outdoor World, LLC (“BPOW”), Tracker Marine, LLC (“Tracker”), and

Bass Pro, Inc. (“BPI”) (collectively, “Defendants”) pursuant to T itle VII of the Civil Rights Act

of 1964 as amended, and Title I of the Civil Rights Act of 1991 (“Title VII”). (Doc. No. 23, Am.

Compl. ¶¶ 3-4.) According to the EEOC, Defendants are an integrat ed enterprise, such that they

are jointly and seve rally liable for discriminatory acts. (Id. ¶ 4.) The EEOC claim s that all

conditions precedent to the institu tion of this lawsuit have been fulfilled. ( Id. ¶ 6.) The EEOC

invokes this Court’s jurisdiction pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. ( Id.

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¶ 1.) The Am ended Complaint accuses De fendants of denying em ployment to Black1 applicants for hourly and salaried position s at their retail stores based on their race. ( Id. ¶ 8.) According to the EEOC, Defendants have selected Black applicants at rates far below their availability in the relevant labor pools. ( Id.) For example, the EEOC avers, Defendants have produced data showing that out of 600 managers at their retail stores, only 10 to 15 were Black. (Id.)
The EEOC asserts th at Defendants also have a nationwide standard operating procedure of discouraging the hir ing of Black applic ants for several positions because of their race. (Id.) The EEOC offers four exam ples of alleged inci dents exemplifying Defendants’ discrim inatory practice. (Id.) First, in or around the summ er of 2006, a recen tly hired Human Resources Manager interviewed a qualified Black applicant for a position at a store in Louisiana. ( Id.) An Assistant General Manager, who ha d participated in that sto re’s hiring decisions for three years, told the Human Resources Manager that the candidate “really doesn’t fit our profile.” (Id.) When the Human Resources Manager asked for an explanation, the Assistant General Manager replied, “We don’t hire niggers 2.” (Id.) Second, in 2005, the General Mana ger of a store in Katy, Texas told the Hum an Resources Manager: “It is getting a little dark in here; you need to hire som e white people.” ( Id.) Third, several tim es in late 2008, a department “Lead” in a Clarksville, Indiana store was seen destroy ing an employment application after he decided the nam e on the application “sounded like a ‘nigger nam e.’” (Id.) The Lead employee opined that “niggers steal” and did not make good employees. (Id.) Fourth, management-level individuals held a job fair for the Pearl, Mississipp i store at a location far from the store, so as to discou rage Blacks from applying for jobs. ( Id.) The EEOC m aintains that Defendants’ denial of employment to Black applicants constitutes a pattern or practice of discrimination. (Id. ¶ 9.)
1 The EEOC uses the term “Black” in its pleading. 2 The Court takes extreme offense to the use of this word, and includes the full term only to convey the odiousness of the conduct alleged.
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Additionally, the EEOC avers, D efendants have denied em ployment to Hispanic applicants for hourly and salaried positions at their retail stores nation wide because of national origin. (Id. ¶ 11.) The EEOC claim s that Defendants hire Hispanic applicants at rates far below their availability in th e relevant labor pools. ( Id.) For example, Defendants have proffered data showing that of approxim ately 892 managers at their retail stores, only 33 were Hispanic. ( Id.) The EEOC asserts that Defendants’ practice is nation-wide, as shown through several exam ples of alleged discrim inatory actions. ( Id.) In 2005, in addition to directing a Hum an Resources Manager to “hire som e white people,” the Genera l Manager of the Katy, Texas store frequently used the words “wetback,” “Pedro,” and “Mexican” to refer to people of Hispanic origin. (Id.) In late 2008, a Lead em ployee at the Clarksville, Indiana store stated, “Hispanics should be shot at the border by the border patrol.” ( Id.) A Lead employee at the Des tin, Florida store stated in 2009 that Defendants have a practice of not hi ring Hispanics or Blacks at that store. ( Id.) The EEOC urges that Defendants’ denial of employment to Hispanic a pplicants constitutes a pattern or practice of discrim ination against a class of Hispanic ap plicants. (Id. ¶ 12.) According to the EEOC, Defendants have denied employment to Black and Hisp anic applicants for varied positions, including c ash clerk, cashier, customer relations associate, customer service representative, customer service representative cr edit, greeter, cashier/greeter, loss prevention, receiving clerk, sales associate, stocking associate, PACE employees, Santa’s Wonderland, Lead, Team Lead, and all supervisory and managerial positions. (Id. ¶ 14.)
The EEOC further claim s that Defendant s have, on a nationwide basis, unlawfully retaliated against em ployees who opposed practices that they r easonably perceived to violate Title VII. ( Id. ¶ 15.) According to the EEOC, Defenda nts’ retaliatory acts ag ainst such employees have includ ed: altering the te rms, conditions, or privileg es of their em ployment;
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bringing false allegations against them; pressuring them to withdraw their complaints; subjecting them to heightened scrutiny; and firing them or inducing their resignations. ( Id.) The EEOC offers two exam ples of alleged retaliatory acts by Defendants. ( Id.) First, in May 2008, a managerial employee at the Spanis h Fort, Alabam a store com plained to a Regional Hum an Resources Manager th at the sto re General Manager was discrim inating against fe male employees. (Id.) When the store General Manager hear d about the com plaint, he told his subordinate that she “better no t complain about him again.” ( Id.) Later, the store Human Resources Manager fired the em ployee, explaining that the store General Manager had ordered her termination. (Id.) A m anager in the Clarksville, Indi ana store stated th at Defendants’ corporate officer permitted a s tore manager and Human Resources manager to lis ten to Defendants’ anonymous discrimination hotline. (Id.) On one occasion, De fendants fired an employee in Clarksville, Indiana because she had a voice that sounded like one of the hotline callers. (Id.)
The consequence of these practices, the EEOC insists, h as been to deprive Black and Hispanic applicants of equal em ployment opportunities and to otherwise adversely affect their status as applicants because of their race or national orig in. (Id. ¶ 16.) Additionally, the EEOC avers, these practices have deprived employees of equal employment opportunities and otherwise adversely affected their status as em ployees because of their com plaints or oth er activity protected by Title VII. ( Id.) The EEOC also accuses Defendants of failing to preserve records relevant to the dete rmination of whether unlawful em ployment practices have been or are being committed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c). ( Id. ¶ 17.) Such records allegedly include: relevant em ployment applications and personnel files, tests administered to app licants, lists of job ca ndidates, and electronic messages and audio and
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documentary records of efforts to contact the corporate co mplaint center. (Id.) For example, the EEOC claims that, after receiving notice of the Commissioner Charge which underlies this action, Defendants allowed the destruction o f hotline recordings co ntaining discrimination complaints. (Id.) The EEOC contends that the Defendants’ unlawful employment practices were intentional and were done with malice or with reckless indiffere nce to the federally protected rights of Black and Hispanic employee and applicants, as well as the federally protected rights of employees who engaged in activities protected by Title VII. (Id. ¶ 19.)
Defendants filed this Motion (Doc. No. 32) , to which the EEOC filed a Response (Doc. No. 45). Defendants filed a Reply (Doc. No. 52).
II. LEGAL STANDARD A. Rule 12(b)(6)
“To survive a Rule 12( b)(6) motion to dism iss, a com plaint ‘does not need de tailed factual allegations,’ but must provid e the plaintiff’s grounds for entitlem ent to relief—including factual allegations that when assumed to be tr ue ‘raise a right to re lief above the speculative level.’” Cuvillier v. Ta ylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a co mplaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is li able for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Th e plausibility standard is not akin to a “probability requirem ent,” but asks for m ore than a sheer possibility that a def endant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic
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recitation of the elem ents of a cause of action w ill not do.” Twombly, 550 U.S. at 555 (citation omitted).
Ultimately, the question for the court to dec ide is whether the com plaint states a v alid claim when viewed in the light most favorab le to the p laintiff. The court m ust accept wellpleaded facts as tru e, but legal con clusions are not entitled to the sa me assumption of truth. Iqbal, 129 S. Ct. at 19 50 (citation omitted). The c ourt should not “‘strain to find inferences favorable to the plaintiffs’” or “accept ‘conclusory allegations, unw arranted deductions, or legal conclusions.’” R2 Investments LDC v. Phillip s, 401 F.3d 638, 642 (5th Cir. 2005) (quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir. 2004)).
B. Rule 12(b)(2) “Absent a rule or statute to the con trary, . . . a f ederal court [may] exercise jurisdiction over only those defendants who are s ubject to the jurisdiction of courts of the state in which the court sits.” Point Landing, Inc. v. Omni Capital International, Ltd., 795 F.2d 415, 419 (5th Cir. 1986), aff’d sub nom. Omni Capital Intern ational, Ltd. v. Rudolf Wolff & Co ., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). Because th e Texas long-arm statute, Tex. Civ. P rac. & Rem. Code Ann. §§ 17.041–17.045, is coterm inous with the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the Court’s constitutional due process inquiry into personal jurisdiction also serves as an inquiry into personal jurisdiction under the Texas longarm statute. Command–Aire Corp. v. Ontario Mechanical Sales and Service Inc ., 963 F.2d 90, 93-94 (5th Cir. 1992). To comport with constitution al due process, a plaintiff m ust show that: (1) defendants purposefully availed them selves of the benef its and protections of Texas law, thereby establishing “minimum contacts” with Texas such that defendants could reasonably have
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anticipated being haled into court there; and (2) under the circumstances, the exercise of personal jurisdiction “does not offend tr aditional notions of fair pl ay and substa ntial justice.” Id. at 94 (citing Asahi Metal Industry Co. v. Superior Court of Califor nia, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Burger King Corp. v. Rudzewicz , 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); and Asarco, Inc. v. Glenara, Ltd ., 912 F.2d 784 (5th Cir. 1990)). See also Stuart v. Spademan , 772 F.2d 1185, 1192 (5th Cir. 1985) (“W hen a nonresident defendant presents a motion to dism iss for lack of persona l jurisdiction, the plaintiff bears the burden of establishing the d istrict court’s jur isdiction over the nonresident.”). The m inimum contacts requirement can be met through contacts suffici ent to conf er either specific or genera l jurisdiction. Cent. Freight Lines, Inc. v. APA T ransp. Corp., 322 F.3d 376, 381 (5th Cir. 2003) (citation omitted).
Specific jurisdiction exists “[w]hen a nonresident defendant has purpos efully directed its activities at the forum state and th e litigation re sults from alleged injuries that arise out of or relate to th ose activities.” Id. (citation omitted). “The n on-resident’s purposefully directed activities in the forum must be such that he c ould reasonably anticipate being haled into court in the forum state.” Clemens v. McNamee, 615 F.3d 374, 378 (5th C ir. 2010) (citing Burger King, 471 U.S. at 474). See also Choice Healthcare, Inc. v. Kaiser Foundation Health Plan of Colo ., 615 F.3d 364, 369 (5th Cir. 2010) (“The ‘purposeful av ailment’ element ensures that a defendant will not be haled into court in a jurisdiction solely as a result of random, fortuitous, or attenuated contacts or the unilateral activity of another person or third party.”). Further, specific jurisdiction “requires a sufficient nexus between the non-resident’s contacts w ith the forum and the cause of action.” Clemens, 615 F.3d at 378-79. Indeed, the non-resi dent defendant m ust purposefully avail herself of the privilege of c onducting activities in the forum state. Id. at 379. For exam ple,
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in the case of a company, relevant factors in finding specific jurisdiction would be a “regular …

flow” or “regular course” of sales, or “som ething more,” such as “special state-related design,

advertising, advice, marketing,” or a “s pecific effort” to sell in the state. McIntyre Machinery,

Ltd. v. Nicastro, ––– U.S. ––––, ––––, 131 S.Ct. 2780, 2792, 180 L.Ed.2d 765 (2011) (Breyer, J.,

concurring) (quotations omitted).

Unlike specific jurisdiction, general jurisdic tion can be exercised when a defendant’s

contacts with the forum state are substantial, continuous, and systematic, though unrelated to the

litigation. Cent. Freight Lines, Inc ., 322 F.3d at 381. To determ ine general jurisdiction, a court

views all of the defendant’s cont acts “over a reasonable number of years, up to the date the suit

was filed.” Access Telecom, Inc. v. MCI Telecomms. Corp. , 197 F.3d 694, 717 (5th Cir. 1999).

The “continuous and system atic contacts test is a difficult one to m eet, requiring extensive

contacts between a defendant and a forum.” Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602,

609 (5th Cir. 2008).

While the party seeking to invoke the power of the court bears the burden of proving that

jurisdiction exists, a prima facie showing suffices, and the plaintiffs need not establish

jurisdiction by a preponderance of the evidence. Love N’ Care, Ltd. v. Insta–Mix, Inc. , 438 F.3d

465, 469 (5th Cir. 2006). Moreover, “the Court must resolv e all undisputed facts submitted by

the plaintiff, as well as all facts contested in the affidav its, in favor of jurisdiction.” Id. (citing

Wyatt v. Kaplan , 686 F.2d 276, 280 (5th Cir. 1982)). “‘The court m

ay determine the

jurisdictional issue by receiv ing affidavits, inte rrogatories, depositions, oral testim ony, or any

combination of the recognized m ethods of discovery.’” Allred v. Moore & Peter son, 117 F.3d

278, 281 (5th Cir. 1997) (quoting Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985)).

III. ANALYSIS

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The Court concludes that the EEOC has failed to state a claim for a pattern or practice of

discrimination. Likewise, the EEOC’s retaliation claim cannot survive the Motion to Dis miss.

The Court agrees with Defendants that the E EOC may not bring a pattern or practice claim

pursuant to § 706. A 300-day lim itations period applies to claims brought pursuant to § 706 or §

707; therefore, claim s for failure to hire fallin g outside of that tim e period m ust be dism issed.

The EEOC has adequately pleaded a record-keeping violation and that conditions precedent to

the lawsuit have been m et. The Court m ust defer its decision as to whether it has personal

jurisdiction over BPI until the EEOC submits supplemental briefing. Finally, the Court finds that

it should not dismiss BPI and Tracker on the grounds of failure to exhaust. The EEOC is granted

leave to file a Second Am ended Complaint within 21 days of the date of this Mem orandum and

Order.

A.

Parties’ Briefing

i.

Defendants’ Motion

In their Motion, Defendants urge the Court to dismiss all claim s against them . First, Defendants explain that that § 706 3, which permits the EEOC to sue on behalf of an aggrieved

person, allows for equitable relief and da mages. (Mot. Dism iss at 8.) Conversely, Defendants elaborate, § 7074 permits the EEOC alone to sue to restrain a pattern or pract ice of intentional

3 Pursuant to § 706, “[t]he Commission is empowered … to prevent any person from engaging in any unlawful employment practice as set forth in [§ 703 or § 704].” Under § 703, it is “an unlawful employment practice for an employer—(1) to fail or ref use to hire or discharge any individual, or ot herwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of s uch individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 4 Section 707 provides: “Whenever the Attorney General has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that pattern or practice is of s uch a nat ure and is intended to deny the full exercise of t he rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or
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discrimination, and only provi des equitable relief. ( Id. at 10.) Under both sections, the EEOC must engage in conciliation. ( Id. at 11.) Additionally, Defenda nts contend, § 707 does not provide for trial by jury or permit aggrieved individuals to intervene. (Id. at 12.)
According to Defendants, the Am ended Complaint fails to state a § 707 pattern or practice claim. ( Id. at 13.) Defendants insist that the EEOC—despite conducting a three-year investigation—does not id entify a specific, objectively veri fiable company-wide policy or practice of discrim ination. (Id.) Instead, Defendants aver, the EEO C merely states in a wholly conclusory manner that Defendants had a “sta ndard operating procedur e of discouraging the hiring of Black and Hispanics.” ( Id. at 13-14.) Indeed, Defendants urge, the anecdotes included in the Amended Complaint demonstrate the absence of a pattern or practice. ( Id. at 14.) Defendants insist that the EEOC’s retaliation claim is likewise deficient. (Id. at 15.) The EEOC’s examples, Defendants contend, are few in number, reflect subjective, de centralized decisions rather than any uniform ity across Defendants’ many stores and m anagers, and “are entirely consistent with the reality th at individual acts of m isconduct usually are isolated.” (Id. at 18.) Additionally, Defendants insist that the EEOC’s statistics are not meaningful. (Id.) For example, Defendants aver, the statistics: do not lay out the demographics of the relevant labor pool; concern managers rather than other em ployees; and fail to raise the inference that a companywide policy of discrim ination is implemented by discretionary decisi ons at the stor e and district level. (Id. at 19-20.)
Next, Defendants assert that the Amended Complaint fails to state a § 706 claim because it does not identify any alleged claim ants, state what claim s the individual claim ants are asserting, or provide the factual basis for those claim s. (Id. at 22.) Defendants accuse the EEOC
temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.”
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of attempting, impermissibly, to bring a pattern or practice claim pursuant to § 706 so that it can recover compensatory and punitive damages based on an Int’l Bhd. of Teamsters v. U.S. , 431 U.S. 324, 336 (1997), model. (Id. at 24.) Reading the EEOC’s draft Proposed Discovery Plan and Case Management Order (Ex. C to Mot. Dism iss), Defendants discern that the EEOC is attempting to present its § 707 pattern or practice claim to a jury, when only § 706 provides for a jury trial. (Id.) Additionally, Defendants believe that the EEOC plans to bifurcate the proceeding, such that one jury would determ ine the existence of a pattern or practice and class-wide punitive damages, and multiple other juries would decide individual liability and compensatory damages. (Id.) According to Defendants, such a bifurca tion would violate both the Seventh Am endment and the Due Process Clause. ( Id.) Defendants oppose the EEOC’s attempt to m erge § 706 and § 707 into a single, non-existent “hybrid” claim. (Id. at 27.)
Defendants also assert that th e EEOC’s conclusory statement that it has satisfied all conditions precedent to the lawsuit is insufficient under Iqbal. (Id. at 28.) Defendants submit that pre-Iqbal Fifth Circuit preceden t, holding that general averments such as the EEOC’s satisfy Rule 9(c), is no longe r controlling law. ( Id. at 29.) D efendants argue that the Am ended Complaint fails to state a record -keeping claim. (Id.) According to Def endants, the EEOC’s claims must further be dismissed to the exten t they concern actions that occurred outside of the limitations period. (Id. at 30.)
Defendants insist that B PI should be dism issed for lack of pe rsonal jurisdiction. ( Id. at 31.) Specifically, Defendants explain that the EEO C’s claims against BPI m ust be dism issed because the EEOC has failed to overcome the presumption that that a subsidiary’s employees are not the employees of the parent company for the purposes of specific jurisdiction. (Id. at 32.) Nor is there general jurisdiction over BPI, Defendants contend. (Id.) Finally, Defendants urge that the
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EEOC’s claims against BPI and Tracker are b arred because the EEO C failed to exhaust its administrative remedies—as their nam es were not included in the Original Charge (Ex. A t o Mot. Dismiss) or in th e Amended Charge (Ex. B to Mot. Dism iss). (Id. at 33.) Defendants recognize that a party may not need to be named in an EEOC charge if there is a clear identity of interest between the nam ed and unnam ed parties; however, Defendants believe this exception applies only to unschooled plaintiffs without representation, not to the EEOC. (Id. at 33-34.)
ii. The EEOC’s Response In its Response, the EEOC insists that it has met its burden of citing the specific adverse employment action challenged, the nature of the discrim ination, and the tim e period involved. (Resp. to Mot. Dismiss at 7.) Specifically, the EEOC states that it has met its burden by: alleging an adverse em ployment action, alleging a nationwide standard operating procedure, providing direct evidence that hiring was tainted by disc riminatory animus, specifying the job title s affected by discriminatory hiring practices, explaining the time period involved, and setting forth the nature of the hiring discrim ination. (Id. at 8-10.) The EEOC avers that, together, these facts are sufficient to state a claim . (Id. at 10.) Indeed, the EEOC e mphasizes, it is not required to provide summary-judgment-type evidence, such as statistical or other evidence needed to make a prima facie case, at the Motion to Dismiss stage. (Id. at 11.) The EEOC insists that it can invoke the Teamsters model of proof to establish a pattern or practice of hiring discrim ination under either § 706 or § 707. ( Id. at 12.) The EEOC points out that the language of § 706 does not circum scribe the EEOC’s enforcem ent authority to only individual disparate treatment claims. ( Id. at 13.) The EEOC avers that num erous cases have confirmed that it can bring pattern or practice claims under § 706. (Id.) In fact, the EEOC insists, every private class action case us ing the pattern-or-practice fram ework of proof is a § 706 case.
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(Id. at 13-14.) According to the EEOC, any doubt that it has the ability to pursue a class claim under § 706 was put to rest by General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980), and EEOC v. Monarch Machine Tool Co., 737 F.2d 1444, 1449 n.3 (6th Cir. 1980). ( Id. at 15-16.) T he EEOC emphasizes that, after remand, the EEOC, still proceed ing under § 706, went on to try the General Telephone case using the Teamsters model of proof. (Id.) The EEOC accuses Defendants of conflating p roof models with causes of action. ( Id. at 16.) Indeed, the EEOC observes, it does not allege a violation of § 706 or § 707—w hich constitute Title VII’s enforcement provisions—but rather a violation of § 703, 42 U.S.C. § 2000e-2. (Id.)
The EEOC urges that there is no language in § 707 that lim its its suit authority under § 706. (Id. at 17.) Sections 706 and 707 are not m utually exclusive, the EEOC avers, and furthermore Title VII sh ould be construed liber ally in the E EOC’s favor. (Id. at 18.) Likewise, the EEOC contends that it is empowered to seek compensatory and punitive damages in a pattern or practice case under § 706. ( Id. at 18-19.) The EEOC goes on to insi st: “It is consistent with principles of statutory interp retation to assum e that Congress understood when it added the enhanced damages provisions to actions brou ght under Section 706, th at Section 706(f)(1) provided the EEOC wi th the authority to pursu e a discrim ination claim under a ny method of proof, and that authorizing dam ages under Section 706 was sufficient to ensure that the EEOC could seek such dam ages when it sought to challenge a pattern or practice of discrimination.” (Id. at 19.) The EEOC contends th at Defendants’ view—that the EEO C cannot seek enhanced damages in cases involving a patt ern or practice of discrim ination—conflicts with one of the fundamental purposes of the Civil Rights Act, namely to provide appropriate, additional remedies for intentional discrimination and unlawful harassment in the workplace. (Id. at 20.)
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The EEOC asser ts that its Am ended Complaint pleads sufficient facts to state a class retaliation claim under Title VII. ( Id. at 21.) C iting to Sev enth Circuit authority, the EEOC claims that its alleg ations are sufficient because they state that Defendants retaliated by altering the terms, conditions, or privileges of the victims’ employment; bringing false allegations against them; pressuring them to withdraw their complaints; subjecting them to heightened scrutiny; and firing them or inducing their resignations, on a nationwide basis. (Id. (citing EEOC v. Concentra Health Servs., 496 F.3d 773, 781-82 (7th Cir. 2007)).) Furthermore, the EEOC argues that it does not need to name all c lass members in its Amended Complaint. ( Id. at 22.) The EEOC also believes that it has succeeded in stating a record-keeping violation claim . (Id. at 24.) The EEOC complains that it cannot identify, at this tim e, how and why the records were destroyed. ( Id.) Pursuant to Fifth Circuit authority, the EEOC a sserts that it is additi onally not required to specifically plead how all conditions precedent to filing the suit have been fulfilled. (Id. at 25.)
The EEOC urges that its pattern or practi ce claims are not lim ited to the 300-day period preceding the underlying charge of discrim ination, as Defendants allege. (Id. at 26.) Rather, the EEOC contends that the period does not apply because it has alleged that Defendants’ pattern or practice of hiring discrimination constitutes a continuing violation extending beyond the 300-day period. (Id.) Indeed, the EEOC suggests that this Court should not decide whether the continuing violation doctrine is applicable at the Motion to Dism iss stage. ( Id. at 27.) Additionally, the EEOC avers, § 707 does not contain a 300-day limitation. (Id. at 28-29.)
Lastly, the EEOC contends that BPI and Tracker should not be dismissed. ( Id. at 29.) According to the EEOC, it has sufficiently pleaded that Defendants are an integ rated enterprise, precluding dismissal of BPI for lack of personal jurisdiction. ( Id.) Likewise, the EEOC clai ms that it has exhausted its adm inistrative remedies with regard to all Defendants because of the
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integrated enterprise principle. (Id. at 33.) The EEOC believes that it has m et this burden by pleading that: BPI owns BPOW a nd Tracker, whic h is a subsidiary of BPI; De fendants are officers, directors, and/or m embers, and shar e the s ame business ad dress; Defendants hire employees through a common, s hared process, including a uniform application for some positions; and BPOW listed its elf, BPI, and Tracker as parties with a f inancial interest in th e outcome of this litig ation. (Id. at 30.) The EEOC also points out that the three Defendants are currently represented by the sam e counsel. ( Id.) As qu estions relating to jur isdiction are inextricably intertwined with th e merits, the E EOC asserts, ju risdictional questions should be deferred until after discovery. ( Id. at 30-31.) In closing, the EEOC requests that if its Am ended Complaint is found to be deficient in any respect, it be granted leave to amend. (Id. at 35.)
iii. Defendants’ Reply In their Reply, Defendants insi st that Plaintiffs have faile d to state s pecific facts that plausibly suggest “that Bass Pro had a cen tralized policy that caused every ch allenged hiring decision made by every m anager at every Bass Pro store over m ore than seven years to be presumptively infected with dis criminatory bias against Blacks and Hispanics.” (Reply to Resp. to Mot. Dismiss at 2.) Absent id entification of a centralized policy, Defendants submit, the Amended Complaint’s allegations of offensive remarks made by four employees in four stores suggest nothing at all about how other managers at other stores made hiring decisions. (Id. at 3.) Defendants point to Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), as standing for the principle that a common policy must be alleged that ties togeth er otherwise individualized employment decisions. ( Id. at 3-4.) Defendants accuse th e EEOC of failing to address the fac t that the Amended Complain t alleges subjective, individualized employment decisions m ade at the store level—decisions that are at odds with a pattern or practice of discrimination. (Id. at 4.)
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According to Defendants, the EEOC cannot bring its pattern or practice claims in a § 706 class action. (Id. at 5.) To so argue, Defendants cont end, is to render § 707 superfluous, in contravention of established principles of statutory construction. ( Id.) Indeed, Defendants assert, the legislative history of the Civil Rights Act of 1991 supports the logical conclusion that the distinction between § 706 and § 707 was intentional. ( Id. at 6.) Defendants insist that General Telephone does not stand for the proposition that the EEOC can bring a class action under § 706 using the Teamsters method of proof; in fact, Defendants e mphasize, General Telephone does not even mention Teamsters. (Id. at 7.) Consequently, Defenda nts aver that the EEOC’s retaliation claims under § 706 m ust fail because the EEOC has not satisfied the preco nditions to suit or alleged sufficient facts in the Am ended Complaint to plausibly suggest individual retaliation claims. (Id. at 10.)
Defendants contend that the EEOC’ s assertion that no charge-filing period applies to § 707 claims is contradicted by the statute. ( Id.) Additionally, Defendants point out, the EEOC has failed to explain why it should enjoy such a privilege when proceeding under § 706. ( Id. at 11.) According to Defendants, the continuing viol ation doctrine does no t change the lim itations period because the EEOC alleges discrete acts. ( Id. at 12.) Defendants go on to insist that the EEOC has f ailed to sh ow that this Court has jurisdiction over BPI. (Id. at 13-14.) Indeed, Defendants assert, the EEOC’s conclusory allegations in its Amended Complaint are insufficient to establish this Court’s jurisdiction. (Id. at 14.) In closing, Defenda nts contend that the EEOC has failed to exhaust adm inistrative remedies as to BPI and Tracker because th e identity of interest exception is designed to protect plaintiffs unfamiliar with Title VII law—not the EEOC. (Id. at 15.) Furtherm ore, Defendants aver, the EEOC has not esta blished facts to show an integrated enterprise. (Id.)
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B. Pattern or Practice Claim Brou ght Pursuant to the EEOC’s Enforcement Authority Under § 707 “Under § 707, the EEOC m ay investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claim ing to be aggrieved or by a member of the Commission.” EEOC v. Princeton Healthcare System, No. 10–4126 (PGS), 2012 WL 1623870, at *16 (D.N.J. May 9, 2012) (citing 42 U.S.C. § 2000e-6(a)-(e)). “In order to establish a pattern or practice of discriminatory treatment under § 707, a plaintiff must show ‘more than the m ere occurrence o f isolated o r accidental or sporadic discrim inatory acts.’” EEOC v. Global Horizons, Inc., No. 11–00257 DAE–RLP, 2012 WL 928160, at *16 (D. Hawai’i March 16, 2012) (quoting Obrey v. Johnson , 400 F.3d 691, 694 (9th Cir. 2005)). Rather, a “[p]laintiff must show tha t the discr imination was the defendant’s ‘standard operating procedure—the regular rather than the unusual practice.’” Id. (quoting Obrey, 400 F.3d at 694). “A pattern and practice cas e focuses on an ‘objectively verifiable policy or practice of discrimination’ by an employer.” EEOC v. O’Reilly Automotive, Inc., No. H-08-2429, 2010 WL 5391183, at *4 (S.D. Tex. Dec. 14, 2010) (quoting Teamsters, 431 U.S. 324). “‘Pattern-or-practice cases differ significantly from the far more common cases involving one or m ore claims of individualized discri mination,’ and proceed u nder a different burden shifting framework than the trad itional McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 9 3 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] fram ework applicable to individual claim s.” EEOC v. JBS USA, LLC, No. 10-cv-02103-PAB-KLM, 2011 W L 3471080, at *2 (D. Colo. Aug. 8, 2011) (quoting Thiessen v. Gen. Elec. Capital Corp. , 267 F.3d 1095, 1106 (10th Cir. 2001)). “In a pattern or practice claim, the EEOC must first es tablish a prima facie case of pattern or practice by ‘demonstrat[ing] that unlawful discrimination has been a regular procedure or policy followed by an em ployer or group of e mployers.’” Id. (quoting Teamsters, 431 U.S. at 360). “If the
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plaintiff carries this burden, the employer may defend against lia bility by challenging plaintiff’s proof or providing nondiscriminatory explanations for the procedure.” Id. (citing Teamsters, 431 U.S. at 360-61). “If the employer fails to carry this burden, ‘a trial court may then conclude that a violation has occurred and determ ine’ whether prospective relief is appropriate on a class wide basis.” Id. (quoting Teamsters, 431 U.S. at 361).
However, some district courts have expl ained that, a t the motion to dism iss stage, “[s]pecific facts are unn ecessary; the complaint need only provide a shor t and plain statem ent giving [the defendant] notice of the nature and basis of the claim .” EEOC v. Scrub, Inc., No. 09 C 4228, 2009 WL 3458530, at *1 (N.D. Ill. Oct. 26, 2009) (citing Fed. R. Civ. P. 8(a)(2); Twombly, 550 U.S. at 555). According to these courts, “even after Twombly, an em ployment discrimination plaintiff is not required to plead specific facts but may rely on notice pleading requirements.” EEOC v. Propak Logistics, Inc. , No. 1:09cv311, 2010 W L 3081339, at *5 (W.D.N.C. Aug. 6, 2010) (citing Boykin v. KeyCorp, 521 F.3d 202, 212-15 (2d Cir. 2008)). This line of cas es emphasizes that “‘[t]he Twombly Court made clear that its holding did not contradict the Swierkiewicz [v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)] rule that a complaint in an employment di scrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrim ination.’” Id. (quoting Reed v. Airtran Airways , 531 F.Supp.2d 660, 666 (D.Md. 2008)). See also Hewitt v. New York City Dept. of Health and Mental Hygiene, No. 09–CV–5705 (RRM)(RLM), 2012 WL 1106715, at *2 (E.D.N.Y. March 31, 2012) (“The Second Circuit has reiterated that Swierkiewicz continues to be the proper framework for analyzing whether a p lausible claim for discrimination has been stated.” (citing Arista Records LLC v. Doe 3 , 604 F.3d 110, 120-21 (2d Cir. 2010); Boykin, 521 F.3d at 213; Gillman v. Inner City Broad. Corp. , No. 08 Civ. 8909(LAP), 2009 WL 3003244, at *3 (S.D.N.Y. Sept. 18,
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2009))); Singleton v. Labor Finders, No. 11–0732, 2011 WL 6813204, at *2 n.1 (W .D. La. Nov. 29, 2011) (“ Twombly did not overrule Swierkiewicz.”); Gillman, 2009 W L 3003244, at *3 (“Iqbal was not m eant to displac e Swierkiewicz’s teachings about pleading standards for employment discrimination claims because in Twombly, which heavily inf ormed Iqbal, the Supreme Court explicitly affir med the vitality o f Swierkiewicz.”); Tamayo v. Blagojevich , 526 F.3d 1074, 1084 (7th Cir. 2008) (explaining that even af ter Twombly, “in order to prevent dismissal under Rule 12(b)(6), a complaint alleging sex discrim ination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the bas is of her sex”); EEOC v. McIntyre Group, Ltd. , No. 07 CV 5458, 2007 W L 4365367, at *1 (N.D. Ill. Dec. 11, 2007) (agreeing “that Bell Atlantic does not require the Court to apply a heightened pleading standard to complaints allegi ng employment discrimination” (citing Killingsworth v. HSBC Bank Nev., N.A., No. 06-1616, 2007 WL 3307084, at *3 (7th Cir. Nov. 9, 2007); Erickson v. Pardus, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Bell Atlantic, 127 S.Ct. at 1974; Concentra Health Servs., Inc., 496 F.3d at 782)).
For example, the Northern District of Illinois has asserted that although “[a] prima facie case of pattern or practice discrim ination may be established through a com bination of strong statistical evidence of disparate impact and anecdotal evidence of the employer’s intent to treat the protected class unequally,” Scrub, Inc., 2009 WL 3458530, at *2 (citing Teamsters, 431 U.S. 324; Mozee v. Am. Commercial Marine Serv., Co. , 940 F.2d 1036, 1051 (7th Cir. 1991)), “[t]he manner of proof is distinct from pleading requirements,” id. Thus, that court opined, “an employment discrimination plaintiff must satisfy notice-pleading requirements; specific facts establishing a prima facie case of employment discrimination are not required.” Id. (citing Twombly, 550 U.S. at 570; Swierkiewiez, 534 U.S. at 514-15). Likewise , the Northern District of
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Illinois rejected the defendant’s conclusion that the EEOC’s f our-year investigation “warrants a

more detailed complaint.” Id. Rather, the court emphasized, “[l]itigants are entitled to discovery

before ‘being put to their proof.’” Id. (quoting Vitug v. Multistate Tax Comm’n, 88 F.3d 506, 513

(7th Cir. 1996)). See also Propak L ogistics, Inc., 2010 WL 3081339, at *3 (“Even though after

so many years of investigation it would seem greater detail could have been provided, the Court

nonetheless concludes that the Complaint is suffi cient to comply with Rule 8.”). As the EEOC

had identified the nature of the discrimination and the relevant time period, the Northern District

of Illinois determined that the EEOC had succeeded in stating a pattern or practice claim. Id. See

also Propak Logistics, Inc. , 2010 WL 3081339, at *5 (“[T]he Com plaint contains the allegation

that between October 2002 and June 2004, the

Defendant had a pattern or practice of

discriminatory hiring b y predominantly hiring Hispanic applicants to fill vacant, available

positions to the exclusion of similarly or more qualified non-Hispanic applicants. The EEOC has

alleged that Defendant took a specific advers e employment action; that is, intentional

discrimination, against qualified applicants and poten tial applicants based on their national

origin…. This sufficiently identifi es the nature of the discrim ination—failure or refusal to hire

because of national origin. The time period involved is alleged.” (citations omitted)).

Despite the continuing vitality of Swierkiewicz, courts have ackno wledged that the

dictates of Twombly and Iqbal still apply to discrimination complaints. Courts reconcile these

three cases by explaining that plaintiffs need not establish every elem ent of their prima facie

case, but must nonetheless state a plausible cla im for relief under the pleading standard set forth

in Twombly and Iqbal. Moore v. Metropolitan Human Serv ice District, No. 09-6470, 2010 W L

1462224, at *3 (E.D. La. April 8 , 2010) (footnotes om itted). See also Hedges v. Town of

Madison, 456 Fed.Appx. 22, 22 (2d Cir. 2012) (unpublished) (“ Swierkiewicz’s reliance on

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Conley suggests that, at a m inimum, employment discrimination claims must meet the standard of pleading set forth in Twombly and Iqbal, even if pleading a prima facie case is not required.”); Henderson v. JP Morgan Chase Bank, N.A. , 436 Fed.Appx. 935, 937 (11th Cir. 2011) (unpublished) (“A complaint in an em ployment discrimination case need not contain specific facts establishing a prima facie case under the evidentiary framework for such cases to survive a motion to dismiss. But com plaints alleging discrimination still m ust meet the ‘plausibility standard’ of Twombly and Iqbal.” (citations omitted)); Barbosa v. Continuum Health Partners, Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y . 2010) (“Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prim a facie case of e mployment discrimination to survive a motion to dismiss; however, the claim must be facially plausible and must give fair notice to the defendants of the basis of their claim .” (quotations and footnote om itted)); EEOC v. SDI of Grapevine Texas, No. 3:08-CV-1606-L, 2009 WL 1469779, at *2 (N.D. Tex. May 27, 2009) (“The court interprets Swierkiewicz, Twombly, and Rule 8 to require that a complaint set forth the allegations in sufficient detail to provide fair notice of the nature of the claim and that the right to relief must be above the speculative level. Details beyond this threshold may be obtained through discovery and a motion for a more definite statement.” (citation omitted)).
Defendants urge this Court to exam ine the Amended Complaint in light of Twombly and Wal-Mart. (Reply to Resp. to Mot. Dismiss at 4.) According to Defen dants, the fact that WalMart concerned class certification is irrelevant; surely, Defendants press, Wal-Mart’s standard is useful in evaluating what facts m ust be alleged to state a claim . (Id.) Indeed, Defendants assert, Wal-Mart’s commonality f inding consisted in part of the question of whether a pattern or practice existed. (Id.) Defendants are correct that Wal-Mart explained that “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that
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examination of all the class m embers’ claims for relief will produce a common answer to th e crucial question why was I disfavored. ” 131 S.Ct. at 2552 (em phasis in original). Additionally , the Wal-Mart Court noted that “[t]he only corporate policy that the pla intiffs’ evidence convincingly establishes is Wal-Mart’s ‘policy’ of allowing discretion by local supervisors over employment matters.” Id. at 2554 (emphasi s in original). The Court opined that “that is just the opposite of a uniform employm ent practice th at would provide the com monality needed for a class action; it is a policy against having uniform employment practices.” Id. (emphasis in original). However, the Court declines Defendants’ invitation to fashion a new pleading standard for pattern or practice cases based on Wal-Mart. In fact, the Wal-Mart Court explicitly distinguished its Rule 23 class certification ho lding from a pleading standard: “Rule 23 does not set forth a m ere pleading standard.” Id. at 2551. In other words, unlike a p arty attempting to survive a 12(b)(6) m otion, “[a] party seeking cla ss certification must affirmatively demonstrate his compliance with th e Rule—that is, he m ust be prepared to prove that the re are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. Wal-Mart simply did not concern pleading standards, and the Court does not find it appropriate to evaluate the EEOC’s Amended Complaint in Wal-Mart’s shadow.
Nonetheless, the Court concludes that the EEOC’s Am ended Complaint cannot survive the Motion to Dism iss. The Court finds m ost convincing the case law that reconciles Twombly and Iqbal with Swierkiewicz. Specifically, the Court agrees that although Swierkiewicz’s finding that a plaintiff need not m ake a prima facie case of discrimination retains its vitality, Twombly and Iqbal demand that plain tiffs state a plau sible claim for relief. “Accordin gly, while a complaint need not co ntain specific facts es tablishing a prima facie case of em ployment discrimination to overcom e a Rule 12(b)(6) motion to dismiss, it m ust nevertheless give fair
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notice of the basis of Plaintiff's claims, and the claims must be facially plausible.” Gillman, 2009 WL 3003244, at *4.
Here, the EEOC has failed to state a facially plausible pattern or practice claim . The EEOC alleges that Defendants have denied empl oyment to Black applicants for hourly and salaried positions at their retail stores nationwide based on their race. The EEOC explains that of about 600 managers at Defendants’ retail stores, only about 10 to 15 were Black. (Am. Compl. ¶ 8.) This data may be sufficient to state a plausible claim that Defendants had a pattern or practice of failing to hire Black m anagers. However, the EEOC alleges that Defendants have denied employment to Black applicants for many salaried and hourly positions, not just managers. (Id.) Defendants go on to provide four exam ples of discrim inatory behavior. ( Id.) While these examples concern extremely troubling racist comments surrounding hiring decisions, the EEOC provides few facts showing that a ny applicants were actu ally denied position s based on their race. Nor does this handful of alleged incide nts render the EEOC’s allegations of a nationwide pattern or practice plausible. Sim ilarly, the EEOC explains that of the 892 m anagers at Defendants’ retail stores , only 33 were Hispanic. 5 (Id. ¶ 11.) Additionally, the EEOC provides two examples of racist comments by em ployees about Hispanics, with onl y one example of an employee actually stating that Defendants had a pr actice, at a particular store, of not hiring Hispanics or Blacks. ( Id.) Of course, the EE OC is not bur dened with the requirem ent of demonstrating that their claim s are probable. Yet this handful of racist incidents, however disturbing, fails even to rende r the EEOC’s allegations of a company-wide pattern or practice plausible. The EEOC’s Am ended Complaint merely offers conclusory allegations and unwarranted deductions. For these reasons, Defenda nts are entitled to d ismissal of the EEOC’s pattern or practice claims.
5 The EEOC provides two different counts for the total number of managers at Defendants’ stores.
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The EEOC requests, in the alte rnative, leave to am end its Am ended Complaint. The Court evaluates the EEOC’s request for leave to amend under Federal Rule of Civil Procedure 15, which provides that this Cour t “‘should freely give leave when justice so requires.’” Cole v. Sandel Med. Indus., LL C., 413 F.App’x 683, 688 (5th Cir. 2011) (quoting Fed. R. Civ. P. 15(a)(2)). “[T]he language of this rule evinces a bias in favor of granting leave to am end,” and the Court “must have a subs tantial reason to deny a request for leave to am end.” Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002) (quotations and citations omitted).
Leave to amend “‘is not automatic,’” however. Udoewa v. Plus4 Credit Union, No. H-083054, 2010 WL 1169963, at *1 (S.D. Tex. March 23, 2010) (quoting Matagorda Ventures, Inc. v. Travelers Lloyds Ins. Co., 203 F.Supp.2d 704, 718 (S.D. Tex. 2000) (citing Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981))). In cons idering whether to grant leave to amend, the Court m ay weigh m ultiple factors, including undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice, and futility. Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 ( 5th Cir. 1993). The Court may also consider whether the EEOC kne w “‘or should have known of the facts upon which the proposed amendment is based but fail[ed] to include them in the original com plaint.’” Udoewa, 2010 WL 1169963, at *2 (quoting Pallottino v. City of Rio Rancho , 31 F.3d 1023, 1027 (10th Cir. 1994)). See also Ross v. Houston Housing Authority, No. H-09-2361, 2010 WL 1726908, at *2 (S.D . Tex. April 28, 2010) (denying m otion to amend on the basis that plaintiff had prior knowledge and possession of supporting evidence); Pope v. MCI Telecommunications Corp., 937 F.2d 258, 263 (5th Cir. 1991) (denying m otion for leave to amend in part because plaintiff could have added her proposed amendment years earlier, as it “was not about som ething recently discov ered” but “based upon the sam e facts as her previous claims”).
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Balancing these factors, the Court determ ines that the EEOC should be granted leave to amend its Am ended Complaint. The Court h as no reason to be lieve that am endment will b e futile. Defendants will not be heav ily prejudiced by leave to am end, as discovery has not yet begun in this case and a Scheduling Order has not been entered. The EEOC has am ended its Complaint only once, and did so without the benefit of guidance from the Court as to its pleading requirements; thus, the EEOC is not guilty of repeated failure to amend. In sum, the EEOC is granted leave to file a Second Amended Complaint within 21 days of the date of this Memorandum and Order.
C. Claims Brought Pursuant to th e EEOC’s Enforcement Authority Under § 706 “Section 706 of Title VII autho rizes the EEO C to bring claim s involving the rights of aggrieved individuals challengi ng an unlawful employm ent practice on an individual or classwide basis.” Global Horizons, 2012 WL 928160, at *16 (citing 42 U.S.C. § 2000(e)-5 (f)(1); EEOC v. Scolari Warehouse Mkts., Inc. , 488 F.Supp.2d 1117, 1143 (D. Nev. 2007)). “The 1991 amendments to Title VII expanded the remedies available for § 706 claims from purely equitable remedies, including backpay, to include punitive and compensatory damages, without similarly expanding the dam ages available f or claims brought pursuant to § 707.” JBS USA, LLC , 2011 WL 3471080, at *4 (citing 42 U.S.C. § 1981 a(a)(1); EEOC v. Waffle House, Inc., 534 U.S. 279, 287 (2002)). Thus, under § 706, “[t]he EEOC is entitle d to equitable relief, and may also usually pursue compensatory and punitive damages.” EEOC v. CRST Van Expedited, Inc. , 611 F.Supp.2d 918, 929 (N.D. Iowa 2009) (citing 42 U.S. C. § 2000e-5(g); 42 U.S.C. § 1981a(a)). “A § 706 claim involves the rights of aggrieved individuals challenging unlawful em ployment practice on an indiv idual or class-wide basis, whereas a § 707 claim involves a pattern-orpractice of systemic discrimination challenging widespread discrimination through a company on
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a group basis.” Scolari Warehouse Mtks., Inc. , 488 F.Supp.2d at 1143 (citing EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1084 (C.D. Ill. 1998); General Telephone, 446 U.S. at 324) (em phasis in o riginal). Additionally, “th e Teamsters framework generally applies to pattern or practice clai ms brought under § 707, whereas the McDonnell Douglas framework applies to individua l claims brought under § 706.” JBS USA, LLC , 2011 W L 3471080, at *4 (citing Serrano v. Cintas Corp. , 711 F.Supp.2d 782, 794 (E.D. Mich. 2010)). Under McDonnell Douglas, a plaintiff bears the burden of pr oving a p rima facie case that the defendant made an em ployment decision that wa s motivated by a protected factor. 4 11 U.S. at 802-03. To state a prima facie case, the plaintiff mu st establish that (i) she is a mem ber of a protected class; (ii) she is qualified for the position; (iii) an adverse employment action occurred; and (iv) she was replaced by som eone outside the protected group or was treated less favorably than other sim ilarly situated em ployees outside the protected group. Id. If a plain tiff makes a prima facie case, the burden shif ts to the defendant “t o articulate a legitimate, nondiscriminatory or nonretaliatory reason for its employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (footnote omitted).
“Notwithstanding those differences, courts have blurred the line between class-wide claims brought pursuant to § 706 and pattern-o r-practice claims brought pursuant to § 707.” Scolari Warehouse Mkts., Inc. , 488 F.Supp.2d at 1143 (citing General Telephone, 446 U.S. at 328 n.12; EEOC v. Gen. Tel. Co. of the Northwest, Inc. , 885 F.2d 575, 577 (9th Cir. 1989); EEOC v. Foster Wheeler Constructors, Inc. , No. 98 C 1601, 1999 W L 528200, at *1 (N.D. Ill . 1999)). Some courts have determ ined that “t he EEOC may bring suit alleging a pattern or practice of unlawful discrimination under section 706 or section 707, but if the suit arises from a charge filed pursuant to section 706, then the EEOC must meet the prerequisites of section 706
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before filing suit.” EEOC v. Int’l Profit Associates, Inc., No. 01 C 4427, 2007 WL 844555, at *9 (N.D. Ill. March 16, 2007). For example, in Scolari, the District Court of Nevada determined that pattern-or-practice claims could be brought pursuant to § 706, even though doing so, “when Congress specifically created anot her avenue to bring such cl aims[,] creates an apparent redundancy in the law that troubles the Court.” Scolari Warehouse Mkts., Inc., 488 F.Supp.2d at 1144. The court based its decision on several factors. First, the c ourt observed that there were several intersections between § 706 and § 707, incl uding the fact that § 707( e) incorporates the procedural requirements of § 706. Id. Second, as the court noted, Title VII has long been construed liberally in favor of complainants. Id. at 1145. The court expressed concern that “allowing punitive and compensatory damages for class-wide claims and not f or pattern-orpractice claims, when both are equally severe in magnitude, would disrupt Title VII’s purpose t o eradicate widespread d iscrimination and to m ake persons whole again .” Id. (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). Third, the court found that § 706 and § 707 cla ims are similar in that “the interest in bringing a class action and/or a pattern-or-practice claim is the same: to prevent against unlawful employment practices affecting a group of individua ls with related claim s.” Id. (citing Harriss v. Pan Am. World Airways, Inc., 74 F.R.D. 24, 41-42 (N.D. Cal. 1977); Charosky v. H enderson, 330 F.3d 1243, 1247 (9th Cir. 2003)). The court conc luded that “[g]iven the sim ilar nature of such claim s and the remedial purpose of Title VII,” there was “li ttle legal or prudential reason to foreclose the EEOC from bringing a pattern-o r-practice claim pursuant to §§ 706 and 707 for the purpose of seeking punitive and compensatory damages.” Id.
Other courts have reached the con trary conclusion. Disagreeing with Scolari, the District Court for the Eastern D istrict of Michigan in sisted “that allowing puni tive and compensatory
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damages in § 706, but not § 707, actions m ay ‘disrupt Title VII’s purpose’ is … irrelevan t—

Congress apparently did not think so, as the 1992 am endments to 42 U.S.C. § 1981a only

extended punitive and compensatory damages to § 706 actions, not § 707 actions. ” Serrano, 711

F.Supp.2d at 793 (em phasis in original). That c ourt went on to find that the EEOC could not

proceed solely under § 706, but reserved its “judgment on the propriety of allowing the EEOC t o

‘blur the lines’ … between the two statutory sections” in case s where the EEOC pursued both §

706 and § 707 actions simultaneously. Id. at 794. Similarly, the Northern District of Iowa opined

that, “[l]ike § 706, § 707 grants the EEOC the right to seek equitable relief against em ployers

found to have intentionally engaged in a pa

ttern or practice of unlawful em ployment

discrimination.” CRST Van Expedited, Inc. , 611 F.Supp.2d at 930 (citing 42 U.S.C. § 2000e-

6(a)). “Unlike § 706, however, the EEOC is not authorized to seek co mpensatory or punitive

damages under § 707; the relevant portion of 42 U.S.C. § 1981a only authorized recovery of

compensatory and punitive dam ages ‘[i]n an action brought by a com plaining party under [§

706].’” Id. (citing 42 U.S.C. § 1981a(a)). The CRST Van Expedited court accused the EEOC of

“attempting to have its cake and eat it too” by trying “to avail itself of the Teamsters burden-

shifting framework yet still seek com pensatory and punitive dam ages under § 706.” Id. at 934.

“Complicating matters further,” that court observed, “it is im portant to rem ember that the

Supreme Court designed the Teamsters burden-shifting framework with only equitable relief in

mind.” Id. (citing Jenson v. Eveleth Taconite Co. , 130 F.3d 1287, 1290 n.4 (8th Cir. 1997)).

Fortunately, the CRST Van Expedited court did not need to “cut through this cloud of confusion”

because the defendant did not ar gue that the EEOC’s complaint fa iled to state a pattern or

practice claim. Id.

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Examining these precedents, the Court conc ludes that the E EOC cannot bring a hybrid pattern or practice claim that melds the respective fram eworks of § 706 and § 707. Rather, the Court interprets § 706 to not provide a vehicle for pattern or practice claims. Likewise, the Court believes § 707 only perm its equitable relief. The Court does not read General Telephone, 446 U.S. 318, or Monarch Machine Tool Co. , 737 F.2d 1444, to em power the Court to blend the § 706 and § 707 fram eworks; indeed, neither case squarely addresse d that issue. The Court finds no support in the case law, or in the statutes themselves, for the EEOC’s proposition that § 707’s pattern or practice language is merely a redundancy.
Similar to its patte rn or practice c laim, any allegations brought pursuant to the EEOC’s powers under § 706 m ust include sufficient facts to state a plausible clai m for relief. Currently, the EEOC appears to bring a claim for retali ation. Nonetheless, the EEOC fails to plead sufficient facts to s tate a retaliation claim. While the EEOC is not obliga ted to p rovide the identities of all § 706 class m embers, the Court cannot locate a case in which the EE OC brought a § 706 claim without iden tifying a single plaintiff. EEOC v. River View Coal, LLC , No. 4:11– CV–00117–JHM, 2012 W L 1593138, at *6 ( W.D. Ky. May 4, 2012) (“In its Am ended Complaint, the EEOC has stated th e claiming parties’ race, relevant dates, positions applied for, and that the applicants were qualif ied for the positions which were f illed with les s qualified white applicants. These facts apprise Defendant of the E EOC’s claim and the grounds upon which they rest.” (quota tion and citation om itted)); EEOC v. 5042 Holdings Ltd. , No. 3:09-CV61, 2010 WL 148085, at *2 (N.D. W.Va. Jan. 11, 2010) (rejecting defendant’s contention that the EEOC had to provide nam es of other aggrieved class members in complaint, and explaining that complaint was sufficient because the EE OC had identified: “1) the statutes defendant allegedly violated; 2) the tim e frames of the alle ged violations; 3) th e identity o f the allege d
29

perpetrators; 4) the name of one presently iden tified victim and a description of the class of aggrieved persons; 5) the specific claims alleged and their elements as to Charging P arty Bland and the class of aggrieved person s; 6) the types of defendant conduct to which [the Charging Party] and the class were subjected; and 7) the remedies being sought”); EEOC v. Man Mar, Inc., No. 09-60761-CIV, 2009 W L 3462217, at *2 (S.D. Fl a. Oct. 22, 2009) (finding pleading sufficient to meet 12(b)(6) when the EEOC alleged generally that it was seeking relief for a class of individuals sim ilarly situated to claim ant, and pleaded that the individuals were protected within the meaning of the ADA an d were subjected “to a hostile work environm ent because of age, including unwelco me ageist rem arks, disparate terms and cond itions of employm ent because of age, disparate discipline com pared to a sim ilarly situated younger em ployee, and termination and/or constructive discharge”); EEOC v. Family Dollar, Inc., No. 07 C 6996, 2008 WL 687284, at *2 (N.D. Ill. Ma rch 12, 2008) (“While the E EOC has not provided an extended factual narrative, the allegations and factual statements in the complaint clearly put [defendant] on notice that the instant action is b ased on [defendant]’s alleged discrimination on the basis of skin color against [the m ain plaintiff] and other em ployees starting in 2005, all in violation of Title VII.”); EEOC v. McIntyre Group, Ltd. , No. 07 CV 5458, 2007 WL 4365367, at *3 (N.D. Ill. Dec. 11, 2007) (“W ith respect to McIntyre’s argument that the EEOC’s failure to identify class members [besides the Charging Party] m andates dismissal under Rule 12(b)(6), the Court notes that McIntyre cites to no authority to support its position…. Moreover, paragraph 7 [of the Complaint] provides ( 1) the re levant time period during which the alleged unlawful acts occurred, (2) the specific facility at which they allegedly occurred, (3) the race of the employees against which the alleg ed unlawful acts were perp etrated, (4) s pecific unlawful a cts that we re allegedly perpetrated, and (5) specific protected activities under Title VII that McIntyre allegedly
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acted to thwart.”). Thus, any claims brought pursuant to the EEOC’s powers under § 706 must be dismissed. For the reas ons outlined in the prio r section, the Court grants the EE OC leave to amend.
D. Conditions Precedent to Lawsuit Defendants urge that th e EEOC has failed to s tate a claim that all con ditions precedent have been met, in compliance with Iqbal. (Mot. Dismiss at 28.) Rule 9(c) provides: “In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed.” Fed. R. Civ. P. 9(c). The Fi fth Circuit has explained that “there is no requirement, statutory or otherwise, that the E EOC specifically p lead that con ciliation efforts have failed.” EEOC v. Klinger Elec. Corp. 636 F.2d 104, 106 (5th Cir. 1981) (per curiam ). Rather, “[a] general averment that ‘all conditions precedent to the institution of this lawsuit have been fulfilled’ is quite adequate for pleading purposes.” Id. at 106-07 (citing Fed. R. Civ. P. 9(c); EEOC v. Standard Forge and Axle Co., Inc. , 496 F.2d 1392 (5th Cir. 1974)). A decision by a prior panel cannot be overruled except by anothe r panel or by the unequivocal direction of the Supreme Court. U.S. v. Uniga-Salinas, 945 F.2d 1302, 1306 (5th Cir. 1991) (citing Society of Separationists, Inc. v. Herman , 939 F.2d 1207, 1211 (5th Cir. 1991)). Iqbal did not concern the pleading standards for claim s under Rule 9(c). As Klinger has not been overruled by another panel or unequivocally discredite d by a decision of the Suprem e Court, it re tains precedential value. In light of Klinger, the EEOC’s general pleading that all condition s precedent have been met is sufficient to survive the Motion to Dism iss. See also EEOC v. Service Temps, Inc. , No. 3:08-CV-1552-D, 2010 WL 1644909, at *4 (N.D. Tex. April 22, 2010) (“The EEOC’s general allegation that all conditions precedent to filing suit have been fulfilled complies with Rule 9(c), which permits parties to ‘allege generally that all conditions precedent have occu rred or been
31

performed.’” (quoting Fed. R. Civ. P. 9(c); citing Klinger, 636 F.2d at 106)). But see Napster,

LLC v. Rounder Records Corp. , 761 F.Supp.2d 200, 206 ( S.D.N.Y. 2011) (“The cases Napster

cites holding Fed. R. Civ. P. 9(c) ‘requires no more than a general statement by a plaintiff that all

conditions precedent have been satisfied to successfully make out a claim ’ all predate Twombly

and Iqbal.” (citations omitted)); Restrepo v. Wells Fargo Bank, N.A. , No. 09-22436-CIV, 2010

WL 374771, at *3 (S.D. Fla. Feb. 3, 2010) (“Plainti ff argues that it has pled that all conditions

precedent to suit hav e been satisfied. However, under Twombly and Iqbal this is insufficient

because it is a conclusory allegation which is not supported by factual allegations.”).

E.

Record-Keeping Claim

Pursuant to 42 U.S.C. § 2000e-8 (c), “[e]very employer, em ployment agency, and labor

organization” must “make and keep such record s relevant to the de terminations of whether

unlawful employment practices have been or are being committed,” and “preserve such records

for such periods … as the [EEOC] shall pr escribe by regulation.” The EEOC alleges that

“[r]ecords which Defendants unlawfully failed to re tain include, but are not lim ited to, relevant

employment applications and personnel files, te sts administered to applicants, lists of job

candidates, electronic m essages and audio and docum entary records of efforts to contac t the

corporate complaint center.” (Am . Compl. ¶ 17.) For ex ample, the EEOC claims, Defendants

“allowed the destruction of hotline recordings containing discrimination complaints made by

employees” after receiving notice of the Commi ssioner Charge that unde rlies this action.

Importantly, “a record-keeping violation may occur whether the records are purposely destroyed

or merely lost.” EEOC v. T.R. Orr, Inc., No. CV 04-2003-PCT-JAT, 2007 WL 505293, at *4 (D.

Ariz. Feb. 14, 2007) (citing Lombard v. MCI Tel. Corp., 13 F.Supp.2d 621, 629 n.10 (N.D. Ohio

32

1998)). These facts, taken together , are sufficient to stat e a claim of a record-keeping violation.

Thus, the record-keeping claim will not be dismissed.

F.

Limitations Period

“The plain language of § 707(e) authorizes the EEOC to investigate and act on a charge

of a pattern or practice of discrimination, and mandates that such actions be taken in accordance

with the procedures of § 706.” EEOC v. Kaplan Higher Educ. Corp. , 790 F.Supp.2d 619, 623

(N.D. Ohio 2011). “Section 706 requires a charge to be filed, under the facts of this case, within

300 days after the allegedly unlawfu l employment practice occurred.” Id. Courts are split as to

whether the EEOC m ay seek relief under § 706 or § 707 for violations outside of the 300-day

time period. Some courts have stated that “[u]nlike private litigants, a statute of limitations does

not apply when the EEOC brings a pattern-or-practice suit.” Scolari Warehouse Mkts., Inc., 488

F.Supp.2d at 1136 (footnote omitted). Accordingly, this line of cases has asserted, “a § 706 claim

is subject to timeliness requirements because the individual nature of the claims may be isolated

even when brought on a class-wide basis; no such lim itation exists for § 707 claim s because

isolating instances of systematic discrimination would be im possible.” Id. at 1143 (citing

Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. at 1084-87). See also EEOC v. Bloomberg L.P.,

751 F.Supp.2d 628, 645 (S.D.N.Y. 2010) (“W hether section 707 incorporates the charge-filin g

period of section 706 is a question that has divide d district courts and ha s eluded the courts of

appeals.” (citing EEOC v. Freeman, No. 09 Civ. 2573, 2010 W L 1728847, at *2 (D. Md. Apr.

27, 2010))); EEOC v. Sterling Jewelers, Inc., No. 08-CV-706, 2010 WL 86376, at *2 (W.D.N.Y.

Jan. 6, 2010) (finding that the statute of limitations in § 706 does not apply to the EEOC); EEOC

v. LA Weight Loss , 509 F.Supp.2d 527, 535 (D. Md. 2007) (“Th e language of sections 2000e-

5(e) and 2000e-6(e) is not so plain as to warrant the appli cation of § 2000e-5(e)’s lim itations

33

period for individual charges to pattern-or-pr actice claims brought by the EEOC unde r § 2000e6.”).
This Court concludes that the EE OC is bound by the 300-day lim itations period whe n proceeding pursuant to either § 706 or § 707. “The Court need not look any farther than the plain language of Section 706(e )(1) to conclude that the class of in dividuals for whom the EEOC can seek relief is lim ited to those who could have filed an EEOC charge du ring the filing period.” Freeman, 2010 W L 1728847, at *4. “The plain language of section 707 incorporates this procedure into pattern or practice actions.” Bloomberg, 751 F.Supp.2d at 645 (citing 42 U.S.C. § 2000e-6(e); Freeman, 2010 WL 1728847, at *4; EEOC v. Custom Cos., Inc. , No. 02 Civ. 3768, 2004 WL 765891, at *8 (N.D. Ill. A pr. 7, 2004); EEOC v. Optical Cable Corp. , 169 F.Supp.2d 539, 546 (W.D. Va. 2001)). “Nothing in the text of Section 706 or 707 suggests that the EEOC can recover for individuals whose claims are otherwise tim e-barred.” Freeman, 2010 WL 1728847, at *4. “If Congress intended to make an exception for the EEOC to revive stale claim s under Section 706 and 707, it should have said so.” Id.
“The continuing violation doctrine creates an equitable exception to the statu te of limitations set forth in Section 706(e)(1).” Id. at *5. “To prove a contin uing violation, a plaintiff must demonstrate an ongoing pattern of discrimination and that at least one act of discrimination occurred during the charging period.” Id. (citing Gilliam v. S.C. Dep’t of Juven ile Justice, 474 F.3d 134, 139-42 (4th Cir. 2007)). “It is true that, ‘[p]rovided that an act contributing to the [hostile work environment] claim occurs with in the filing period,’ the court m ay consider acts outside the statutory tim e period as evid ence of the hostile work environm ent.” JBS USA, LLC, 794 F.Supp.2d at 1205 (quoting Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). “In [ Nat’l R.R. Passenger Corp. v. ] Morgan, the Supreme
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Court indicated close adherence to Title VII’s statutory text was p roper, and equitable tolling doctrines—such as the continuing violations doctrine—should be ‘a pplied sparingly.’” Moni v. University of Texas at Austin, No. A-10-CA-180-SS, 2011 WL 90472, at *7 (W.D. Tex. Jan. 10, 2011) (quoting Morgan, 536 U.S. at 113). Plaintiffs cannot bring claims based on discrete acts of discrimination falling outside of the statutory period. JBS USA, LLC , 794 F.Supp.2d at 1205 (“All of the intervenors allege discrim inatory practices that subs isted throughout their employment, thereby falling within the filing peri od. However, the intervenors also bring claim s based on discrete acts of discrim ination, including failure to accommodate religion; discriminatory discipline and discharge; and retaliation. The intervenors cannot base these claims on events outside the statutory period.”). “Refus ing to hire and term inating employment are discrete decisions.” Kaplan Higher Educ. Corp., 790 F.Supp.2d at 625 (citing Morgan, 536 U.S. at 114, 122 S.Ct. 2061; Ferguson v. Snow, 185 Fed.Appx. 456, 462-63 (6th Cir. 2006)).
Thus, “[e]ven in a pattern-or-practice case such as this, the discrete decisions to refuse to hire and to terminate employment cannot be linked together to create a continuing violation.” Id. “First, the continuing violation doctrine permits the inclusion of additional, but otherwise timebarred, claims—not the inclusion of otherwise tim e-barred parties.” Freeman, 2010 W L 1728847, at *6 (em phasis in original). Furthermore, “[a] pattern or practic e of refusing to hire job applicants does not consti tute a continuing violation.” Id. This is b ecause “[t]he refusal to hire an applicant … is undoubtedly a discrete act of discrim ination.” Id. (citing Morgan, 536 U.S. at 114, 122 S.Ct. 2061 (“Discrete acts such as term ination, failure to prom ote, denial of transfer, or refusal to hire are easy to id entify.” (emphasis added))). “It follows that Title VII precludes recovery in a pattern or practice claim for discrete acts of unlawfully denying a particular applicant a job … if the decision is m ade outside of the limitations period.” Id. See
35

also O’Reilly Automotive, Inc., 2010 WL 5391183, at *10 (“The EEOC also argues that the 300day limitation period does not apply to contin uing violations. But the continuing violation doctrine does not apply to discr ete acts of discrimination such as a f ailure to promote.” (citing Morgan, 536 U.S. at 113-14, 122 S.Ct. 2061; Celestine v. Petroleos De Venezuela SA , 108 Fed.Appx. 180, 182 n.3 (5th Cir. 2004) (“T his Court did not and still does not apply the continuing violation doctrine to discrete incidents such as training, hiring, and prom otion.”)). As the 300-day period applies to all of the EEOC’s claims, any claim s for discrete violations occurring outside of that peri od—including a pattern or practice of failure to hire—m ust be dismissed.
G. Personal Jurisdiction over BPI The EEOC does not argue that BPI, in it s capacity as a separa te corporation, has independent minimum contacts with Texas. (Res p. to Mot. Dism iss at 30.) Rather, the EEOC asserts, the minimum contacts a nd due process personal jurisdic tion tests are satisfied by the integrated enterprise theory. (Id. at 31.) In Trevino v. Celanese Corp., the Fifth Circuit Court of Appeals explained that in Title VII cases, “su perficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer.” 701 F.2d 397, 404 (5th Cir. 1983). To make such a fi nding, the Fifth Circuit cl arified, courts should consider: (1) interrelation of operations, (2) cen tralized control of labor rela tions, (3) common management, and (4) common owne rship and financial control. Id. The most critical question is, “‘What entity m ade the final decisions regard ing employment matters related to the p erson claiming discrimination?’” Maradiaga v. Intermodal Bridge Transport, Inc., No. 3:10-CV-1028L, 2011 WL 856872, at *6 (N.D. Tex. March 11, 2011) (quoting Trevino, 701 F.2d at 404). “That common management, officers and ownership exist between two entities, along with their
36

sharing a common headquarters building and a m ain telephone number, is insufficient to perm it the inference that th e entities operate as an integr ated enterprise, absent evidenc e that th ere is centralized control of labor operations.” Id. (citations omitted).
The integrated enterprise theory described by the EEOC is a liability standard, however, not a jurisdictional standard. “The purpose of th e single integrated-enterprise theory is to determine whether tw o entities c onstitute a si ngle employer for the purposes of Title VII liability; the minimum-contracts test makes certain that persons are not dr ug into the courts of far-away jurisdictions in which they did not e nvision being involved and in which the existence of jurisdiction would be funda mentally unfair.” Walker v. THI of New Mexico at H obbs Center, 801 F.Supp.2d 1128, 1153 (D.N.M. 2011) (quotations om itted). “‘[T]hat a defendant would be liable under a statute if personal jurisdiction over it could be obtained is irrelevant to the question of whether such ju risdiction can be exercised.’” EEOC v. AMX Communications, Ltd. , No. WDQ–09–2483, 2011 WL 3555831, at *6 (D. Md. Aug. 8, 2011) (quoting Cent. States Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 944 (7th Cir. 2000)).
Thus, this Court “does not be lieve that it sho uld confuse liability and jurisdiction by using the single-em ployer theory to determ ine whether it has personal ju risdiction” over BPI. Walker, 801 F.Supp.2d at 1153 (quotations omitted). Indeed, that BPI may “be liable under Title VII if the Court has personal juri sdiction over them is not relevant to the question whether the Court can exercise pers onal jurisdiction over them,” and conversely “if the Court does not have personal jurisdiction over [the m], it cannot render a valid judgm ent on the m erits of other issues”—including whether BPI and the other De fendants are part of a single, integrated enterprise. Id. at 1154 (citations o mitted). See also AMX Communications, Ltd., 2011 W L 3555831, at *6 (in a Title VII case, re jecting application of the inte grated enterprise test for
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jurisdictional purposes); Smit v. Isiklar Holding A.S., 354 F.Supp.2d 260, 267 (S.D.N.Y. 2005) (“[P]laintiff conflates ERISA subject matter jurisdiction and the due process analysis required for personal jurisdiction. Even if ERISA consider s all the def endants a ‘single employer’ and a ‘controlled group’ and ‘common control’ with Is iklar Holding—issues I need not reach here—it would not empower the Court to impute the ac tions of one entity to another f or the purposes of establishing personal jurisdiction.”). But see King v. Enterprise Leasing Co. of DFW , No. 3:05CV-0026-D, 2006 WL 784885, at *4 (N.D. Tex. Ma rch 28, 2006) (“Because King has m ade a prima facie showing that Enterprise Company was her employer and discriminated and retaliated against her in Texas, wh ere she was employed, she has likewise m ade a prima facie showing of specific jurisdiction, i.e., that Enterprise Company’s contacts with Texas arise f rom, or are directly related to, th e cause of action.”); Procaccino-Hague v. Boll Filter Corp. , No. 303CV1560(GLG), 2004 W L 78155, at *3 (D. Conn. Jan. 13, 2004) (finding personal jurisdiction based on an integrated enterprise theory).
As support, the EEOC cites to case law that is actuall y based on the single business enterprise theory of pe rsonal jurisdiction—not the single enterprise theo ry of Title V II liability. However, that theory is no longer valid under Te xas law. Relying on what it perceived to be Texas courts’ single business en terprise theory, the Northern District of Texas found personal jurisdiction over a foreign com pany based on the fact that, as a parent com pany, it had an excessive amount of control ove r its Texas-based subsidiary. Berry v. Lee, 428 F.Supp.2d 546, 554 (N.D. Tex. 2006). Since that decision, however, the Texas Supreme Court has clarified that it does not recognize a single business enterprise theory of personal jurisdiction. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 175 (Tex. 2007). See also Guzman v. Memoria l Hermann Hospital System, No. H-07-3973, 2008 WL 5273713, at *10 (S.D. Tex. Dec. 17, 2008)
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(observing that “the Texas Suprem e Court r ecently held th at the relevant factors fo r ‘jurisdictional veil-piercing’ in a case involving a parent and a subsidiary are not those factors associated with the single en terprise theory”). Rather, the Texas Suprem e Court held that plaintiffs seeking to fus e a p arent and its subsidiary for jurisd ictional purposes m ust prove the parent controls the internal business operations and affairs of the subsidiary to a degree greater than that n ormally associated with common ownership and directorship. Id. (citing BMC Software Belgium, N.V. v. Marchand , 83 S.W .3d 789, 799 (Tex. 2002)). The Texas Suprem e Court explained that the evidence m ust go so far as to “‘show that the tw o entities cease to be separate so that the co rporate fiction should be disregarded to prevent fraud or injustice.’” Id. (quoting BMC Software, 83 S.W .3d at 799). The Court found guidance in a leading treatise, which opined that “courts should determ ine whether the subsidiary is ‘separate and distinct from its parent corporation for personal jurisdiction purposes,’ taking into account the amount of the subsidiary’s stock owned by the parent corporati on, the existence of separate headquarters, the observance of corporate formalities, and the degree of the parent’ s control over the genera l policy and administration of the subsidiary.” Id. (quoting 4A Wright & Miller, Federal Practice & Procedure § 1069.4). Thus, the single business ente rprise theory of pe rsonal jurisdiction does not exist under Texas law.
Additionally, it is im portant to note that the EEOC bears the burden of m aking a prima facie case of personal jurisdiction. In the suppor ting precedents the EEOC cites, plaintiffs prevailed on personal jurisdic tion only after presenting supporti ng evidence. For exam ple, in Procaccino-Hague, cited by the EEOC, the plaintiff a lleged that the defendants were “an integrated enterprise and constitute a single en terprise in that the two e ntities have interrelated operations, a centralized control of labor rela tions, common m anagement and financial control
39

by the parent.” 2004 WL 78155, at *3. In addition, the plaintiff offered an affidavit showing that the companies used th e same presidents, set fo rth some of the sam e terms and conditions of employment, shared financial statements, had staff regularly travel between them , and generally did not operate as separate entities. Id. Similarly, in King, the court found pe rsonal jurisdiction over a com pany when the plaintiff provided proof that th e department she worked for was a component of the company; that she received di rection, supervision, and work policies from the company; that her benefits were governed by the company; and th at she participated in the company’s profit-sharing plan. 2006 WL 784885, at *4. The EEOC has provided no such support beyond its conclusory assertions, which do not merit deference in an evaluation of a Rule 12(b)(2) motion.
The Court concludes, however, that it will not dismiss BPI from the lawsuit at th is time. Rather, the Court def ers its ru ling on whether it has personal jurisdiction over BPI . Within 14 days of filing its Second Amended Complaint, the EEOC should file sup plemental briefing with accompanying affidavits or other evidence sup porting this Court’s personal juris diction over BPI. Defendants may file supplemental briefing in response. After examining an enriched record, the Court will rule on its persona l jurisdiction over BPI. The Court’s other ru lings in this Memorandum and Order do not apply as to BPI.
H. Failure to Exhaust Administrative Remedies as to BPI and Tracker “Before filing suit under Title V II, a plaintiff must exhaust his administrative remedies with the EEOC.” JBS USA, LLC , 794 F.Supp.2d at 1199 (citing Shikles v. Sprint/Un ited Management Co., 426 F .3d 1304, 1317 (10th Cir. 2005)). “‘A co rollary of this general rule is that a party must be nam ed in the EEOC charge before that party m ay be sued under Title V II unless there is a clear identity of interest between [t he unnamed party] and a party nam ed in the
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EEOC charge.’” Steward v. Aries F reight Systems, L.P., No. H-07-1651, 2007 W L 3001660, at *3 (S.D. Tex. Oct. 12, 2007) (quoting Romain v. Kurek, 836 F.2d 241, 245 (6th Cir. 1987); Way v. Mueller Brass Co., 840 F.2d 303, 307 (5th Cir. 1988)). One test finds an identity of interest if the unnamed party has been provided with adequa te notice of the charge and received the opportunity to engage in conciliation. See also Alexander v. Local 496 Laborers’ Int’l Union of North Am., 177 F.3d 394, 412 (6th Cir. 1999) (citing Romain, 836 F.2d at 245). Alternatively, to determine identity of interest for the purposes of an EEOC charge, courts m ay scrutinize “the ‘relationship between the nam ed and unnam ed parties at the tim e the charge is filed and conciliation efforts occur.’” Steward, 2007 WL 3001660, at *3 (quoting Romain, 836 F.2d at 245-46; Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir. 1977)). “I n looking at the relationship, the court examines four factors: whether the role of the unnam ed party could through reasonable effort by th e complainant be ascertained at th e time of the filing of the EEOC complaint; … whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliati on and com pliance it would be unnecessary to include the unnamed party in the EEOC procee dings; whether its absence fr om the EEOC proceed ings resulted in actual prejudi ce to the interests of the unnam ed party and whether the unnamed party has in som e way represented to the complainant that its relationship with the co mplainant is to be th rough the nam ed party.” Id. (citing Romain, 836 F.2d at 246). “This criterion has been further refi ned to the p oint that ‘[t]he critical question to be answered then is: W hat entity made the f inal decisions regarding em ployment matters related to the persons claiming discrimination?’” Jurek v. Williams WP C-I, Inc., No. H-08-01451, 2009 WL 1748732, at *5 (S.D. Tex. June 17, 2009) (quoting Johnson v. Crown Enters., Inc., 398 F.3d 339, 343 (5th Cir. 2005)).
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Courts have held that the record, at a 12(b)(6 ) stage, is insuf ficiently developed to allow the court to adequately apply the a pplicable test; as such, courts have deferred the identity of interest analysis until the summary judgment stage. Steward, 2007 WL 3001660, at *4; Szoke v. United Parcel Service of Am., Inc., No. 1:03CV1628, 2006 WL 2792170, at *2 (N.D. Ohio Sept. 26, 2006) (“In the context of this motion to dism iss, the Court lacks sufficient inf ormation to conclude as a m atter of law that an identity of interest is lacking.”); EEOC v. Jeff W yler Eastgate, Inc., No. 1:03CV662, 2006 WL 2785774, at *4 (S.D. Ohio Jan. 9, 2006) (“At the very least, this C ourt should not dism iss the case base d on a lack of identity of interest before the record is fully deve loped and all of the Glus factors can be equitably weighed.” (citing Fletcher v. Columbus Bd. of Education, 2003 WL 21799944 (S.D. Ohio 2003) (denying motion to dismiss based on a lack of identity of interest becaus e the record was not fully developed and the cour t could not adequately apply either of the two accepted tests))).
Defendants point the C ourt to case law that suggests courts developed this exception to the naming rule “to pr otect plaintiffs who ar e ‘unfamiliar with the technica lities of f ormal pleadings’ and the ‘vag aries’ of Title VII law.” Upshaw v. Bd. of S upervisors of Southern University and Agricultural College, No. 10-184-JJB-SCR, 2011 WL 2970950, at *5 (M.D. La. July 19, 2011) (quoting Fassbender v. Treasure Chest Casino, 2008 WL 170071, at *6 (E.D. La. 2008)). Pursuant to th is precedent, “‘[t]he le niency accorded a laym an in drafting the EEOC charge should not be ex tended to an attorney.’” Id. (quoting Fassbender, 2008 WL 170071, at *6). Accordingly, “courts have held that the excep tion does not apply—and an unnam ed party may not be sued—if the plaintiff is an attorney or is represented by counsel.” Id. (citing Fassbender, 2008 WL 170071, at *6). See also Wei Hong Zheng v. Wong , No. 07-CV-4768 (FB)(JO), 2009 WL 2601313, at *4 (E.D.N.Y. Aug. 24, 2009) (agreeing “with the m ajority of
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the district courts in the Second Circuit that the exception only applies where plaintiff was not represented by counsel at th e time of the EEO C filing” (q uotations, citation, and punctuation omitted)); McLaughlin v. Kvaerner ASA, No. 04-5559, 2007 W L 764290, at *2 (E.D. Pa. March 8, 2007) (“‘The applicability of the exception, how ever, is lim ited to plaintiffs who were not represented by counsel at the tim e the EEOC com plaint was filed.’” (quoting Fordham v. Augusta Westland, N.V. , 2007 U.S. Dist. LEXIS 2979, at *7-9 (E.D. Pa. Jan. 11, 2007))); Gagliardi v. Universal Outdoor Holdings, Inc. , 137 F.Supp.2d 374, 379 (S.D.N.Y. 2001) (“This identity of interest excepti on, however, is lim ited to situati ons where a plaintif f was not represented by counsel at the tim e the EEOC charge was filed.” (citing Harrington v. Hudson Sheraton Corp., 2 F.Supp.2d 475, 477 (S.D.N.Y. 1998); Sharkey v. Lasmo (Aul Ltd.) , 906 F.Supp. 949, 954 (S.D.N.Y. 1995))).
Not all courts agree that the identity of interest exception should be lim ited to pro se plaintiffs, however. Indee d, “[d]istrict courts have split ov er whether pro se status before the agency is a thresho ld issue pre cluding application of the ‘iden tity of interests’ test.” Consolmagno v. Hospital of St. Raphael , No. 3:11cv109 (P CD), 2011 WL 4804774, at *7 n.14 (D. Conn. Oct. 11, 2011) (citing Anderson v. Derby Bd. of Educ. , 718 F.Supp.2d 258, 275 (D.Conn. 2010) (holding that pro se status at the administrative stage is required before applying “identity of interests” exception); Olvera-Morales v. Sterling Onions, Inc. , 322 F.Supp.2d 211, 216 (N.D.N.Y. 2004) (applying “identity of intere sts” exception when experienced Title VII counsel failed to name respondent before EEOC)). See also Turk v. Salisbury Behavioral Health, Inc., No. 09-CV-6181, 2010 W L 1718268, at *3 (E.D . Pa. April 27, 2010) (“Although the Glus court notes that the exception helps those unrepresented by couns el avoid a technical stum bling block, the Third Circuit did not limit the identity of interest exception to pro se litigants. Nor will
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this Court. So long as the Glus factors are satisfied, a clai m under the ADEA m ay be brought against a party unnam ed in the EEOC com plaint.”); Jeff Wyler Eastgate, 2006 WL 2785774, at *4 (applying identity of interests analysis in an EEOC case).
The Court concludes that the iden tity of interests exception may still apply to case s brought by the EEOC. In Glus, the Sixth Circuit noted the im portance of “the availability of complete redress of legitim ate grievances without undue encumbrance by procedural requirements especially when dem anding full and technical compliance would have no relation to the purposes for requiring those pr ocedures in the first ins tance.” Glus, 562 F.2d a t 888. The Court of Appeals opined: “We cannot believ e Congress intended that a person filing charges should accurately ascertain, at th e risk of later facing dism issal of their suit, at the tim e the charges were made, every separate entity whic h in some way may have violated Title VII.” Id. These concerns, although perhaps more pressing when concerning pro se plaintiffs, id. (“‘To expect a complainant at the adm inistrative stage, usually without the aid of counsel, to foresee and handle intricate pro cedural problems … would place a burden … which Congress did not intend.” (quoting Evans v. Sheraton Park Hotel , 164 U.S. App. D.C. 86, 503 F.2d 177 (1974))), do not appear to be lim ited to them. At this st age in the litigation, ther e is insufficient evidence from which to evaluate whether an identity of interest existed between all Defendants. Therefore, the Court declines to dismiss Tracker on these grounds.
IV. CONCLUSION For the reasons explained a bove, Defendants’ Motion is GRANTED in part and DENIED in part. In closing, the Cour t notes that the EEOC’s burden is not great. Indeed, the EEOC need only state a plausible claim for relief—not a probable claim. Furthermore, the EEOC is not required to plead a prima facie case. The current Amended Complaint, however, does not
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manage to state a p lausible claim for a n ationwide pattern or practice of discrimination against Blacks and Hispanics across the num erous positions the E EOC cites. As the Cour t grants the EEOC the opportunity to replead, the EEOC m ay succeed in push ing its Seco nd Amended Complaint into the rea lm of plausibility by narro wing its claim s or sta ting additional facts to bolster its allegations.
The Court defers its decision as to its pers onal jurisdiction over BPI until the subm ission of supplemental briefing; the remaining portions of this Memorandum and Order do not apply as to BPI. The EEOC may file a Secon d Amended Complaint within 21 days of this Memorandum and Order. Discovery will be stayed until the Court rules on Defendants’ Motion to Dismiss the Second Amended Complaint, if su ch a Motion is filed. In the event Defendants do not file a Motion to Dismiss the Second Am ended Complaint, the stay on discovery will be lifted when Defendants file an Answer to the Second Amended Complaint.
IT IS SO ORDERED. SIGNED at Houston, Texas, on this the 31st day of May, 2012.

KEITH P. ELLISON

US

DISTRICT COURT JUDGE

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 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

BASS PRO OUTDOOR WORLD, LLC, §

BASS PRO, INC., and

§

TRACKER MARINE, LLC

§

§

Defendants.

§

Case No. 4:11-CV-3425

MEMORANDUM AND ORDER Before the Court is Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction over Bass Pro, Inc. (“BPI”). After reviewing the supplemental briefing ordered by this Court and the applicable law, the Court finds that Defendant’s Motion must be GRANTED, but without prejudice to the right of Plaintiff to conduct jurisdictional discovery regarding Tracker Marine Retail, LLC.
I. FACTS The Court reviewed the facts of this case in a prior Memorandum and Order (Doc.
No. 53) and will not do so again. The Equal Employment Opportunity Commission (“EEOC”) brings this discrimination action against Bass Pro Outdoor World, LLC (“BPOW”), Tracker Marine, LLC (“Tracker”), and BPI (collectively, “Defendants”), pursuant to Title VII of the Civil Rights Act of 1964 as amended, and Title I of the Civil
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Rights Act of 1991 (“Title VII”). (Doc. No. 23, Am. Compl. ¶¶ 3-4.) The EEOC alleges that Tracker and BPOW are both owned and controlled by BPI.
The EEOC asserts that Defendants have a nationwide standard operating procedure of discouraging the hiring of Black and Hispanic applicants for many hourly and salaried positions at their retail stores because of their race. (Id ¶ 8.) According to the EEOC, Defendants have selected Black applicants at rates far below their availability in the relevant labor pools. (Id.) For example, the EEOC avers, Defendants have produced data showing that out of 600 managers at their retail stores, only 10 to 15 were Black. (Id.) The EEOC further claims that Defendants have, on a nationwide basis, unlawfully retaliated against employees who opposed practices that they reasonably perceived to violate Title VII. (Id. ¶ 15.) The EEOC also accuses Defendants of failing to preserve records relevant to the determination of whether unlawful employment practices have been or are being committed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c). (Id. ¶ 17.)
Defendants assert in their Motion to Dismiss the First Amended Complaint (Doc. No. 32) that the EEOC does not have personal jurisdiction over BPI. Defendants allege that BPI is a non-resident holding company that has no appreciable contacts within Texas. BPI is incorporated and organized under the laws of the State of Delaware and maintains its principal place of business in Springfield, Missouri. (Doc. No. 32-1, ¶3-4.) The EEOC argued that the Court could assert personal jurisdiction over BPI because BPI and BPOW are an integrated enterprise. (Id. ¶ 4.) BPOW is a Missouri limited liability company, and has continuously been doing business in the State of Texas and the City of Katy. Because BPOW is integrated with BPI, Plaintiff attempted to use an integrated enterprise theory to establish jurisdiction over BPI.
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The Court held in its previous Order that the integrated enterprise theory described by the EEOC is a liability standard, not a jurisdictional standard. EEOC v. AMX Communications, Ltd., No.WDQ–09–2483, 2011 WL 3555831, at *6 (D. Md. Aug. 8, 2011) (finding that the liability of a defendant is irrelevant to the question of whether jurisdiction can be exercised). Thus, this Court did not believe that “it should confuse liability and jurisdiction by using the single-employer theory to determine whether it has personal jurisdiction” over BPI. Walker v. THI of New Mexico at Hobbs Center, 801 F.Supp.2d 1128, 1153 (D.N.M. 2011). Rather, the Texas Supreme Court has held that plaintiffs seeking to fuse a parent and its subsidiary for jurisdictional purposes must prove the parent controls the internal business operations and affairs of the subsidiary to a degree greater than that normally associated with common ownership and directorship. Id. (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 799 (Tex. 2002)). The Court deferred its ruling on whether it has personal jurisdiction over BPI until supplemental briefing was presented by both sides. The Court has received supplemental briefing and finds that it must dismiss BPI from the lawsuit.
The Court defers any ruling regarding Tracker because Defendants have stated that they incorrectly identified Tracker on Defendants’ Certificate of Interested Parties, when Tracker Marine Retail, LLC is the correct party. (Doc. No. 74, FN 2.) Tracker is a manufacturing company that has no involvement in the underlying EEOC investigation. Until August 24, 2012, the EEOC was under the impression that Tracker, rather than Tracker Marine Retail, LLC, was the party related to this case. (Id.) On August 24, Defendants filed an Amended Certification of Interested Parties to correct this error. (Doc. No. 75.) Therefore, the Court finds that the dismissal of BPI is without prejudice to the right of the EEOC to conduct discovery regarding the recently identified Tracker Marine Retail, LLC.
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II. LEGAL STANDARD “Absent a rule or statute to the contrary, a federal court [may] exercise jurisdiction
over only those defendants who are subject to the jurisdiction of courts of the state in which the court sits.” Point Landing, Inc. v. Omni Capital International, Ltd., 795 F.2d 415, 419 (5th Cir. 1986), aff’d sub nom. Omni Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). Because the Texas long-arm statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 17.041–17.045, is coterminous with the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the Court’s constitutional due process inquiry into personal jurisdiction also serves as an inquiry into personal jurisdiction under the Texas long-arm statute. Command–Aire Corp. v. Ontario Mechanical Sales and Service Inc., 963 F.2d 90, 93-94 (5th Cir. 1992). To comport with constitutional due process, a plaintiff must show that: (1) defendants purposefully availed themselves of the benefits and protections of Texas law, thereby establishing “minimum contacts” with Texas such that defendants could reasonably have anticipated being haled into court there; and (2) under the circumstances, the exercise of personal jurisdiction “does not offend traditional notions of fair play and substantial justice.” Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir. 1990).
Generally, a foreign parent corporation is not subject to the jurisdiction of a forum state merely because its subsidiary is present or doing business there; the existence of a parent-subsidiary relationship, by itself, is not sufficient to warrant the assertion of jurisdiction over the foreign parent. 2 J. Moore & J. Lucas, Moore's Federal Practice ¶
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4.25[6], at 4-272 (2d ed. 1982); Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir. 1983). It has long been recognized, however, that in some circumstances a close relationship between a parent and its subsidiary may justify a finding that the parent “does business” in a jurisdiction through the local activities of its subsidiaries. See, e.g., Walker v. Newgent, 583 F.2d 163, 167 (5th Cir. 1978); Prod. Promotions, Inc. v. Cousteau, 495 F.2d 483, 492 (5th Cir. 1974); Turner v. Jack Tar Grand Bahama, Ltd., 353 F.2d 954, 956 (5th Cir. 1965). If the parent corporation exerts such domination and control over its subsidiary, then “they do not in reality constitute separate and distinct corporate entities but are one and the same corporation for purposes of jurisdiction.” Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir. 1983).
The Fifth Circuit has relied on the “alter ego rule” that is generally used to pierce the corporate veil also to determine personal jurisdiction. Walker v. Newgent, 583 F.2d 163, 167 (5th Cir. 1978); Gutierrez v. Raymond Int'l, Inc., 484 F. Supp. 241, 253 (S.D. Tex. 1979). The presumption is that a subsidiary, even a wholly-owned subsidiary, is independent of its parent company for jurisdictional purposes. Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 338 (5th Cir. 1999). This presumption can be overcome by clear evidence. Id. Such clear evidence requires an additional or a ‘plus’ factor, “something beyond the subsidiary’s mere presence within the bosom of the corporate family.” Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 338 (5th Cir. 1999) (quoting Donatelli v. National Hockey League, 893 F.2d 459, 465 (1st Cir.1990)).
In Hargrave, the Court of Appeals set out factors to be considered in deciding whether a parent company can be held amenable to personal jurisdiction because of the acts of a subsidiary. The Hargrave factors consider (1) how much of the subsidiary’s stock is owned by the parent; (2) whether the two corporations have separate headquarters; (3) if they
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have common officers and directors; (4) whether the parent and subsidiary observe corporate formalities; (5) whether they maintain separate accounting systems; (6) whether the parent exercises complete authority over general policy; (7) and whether the subsidiary exercises complete authority over daily operations. Hargrave, 710 F. 2d at 1160, cited by Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 339 (5th Cir. 1999). A court should consider the totality of circumstances, rather than a single factor, to determine whether jurisdiction is proper. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 176 (Tex. 2007).
Although the burden is on the party seeking to invoke the power of the court to prove that jurisdiction exists, a prima facie showing suffices, and jurisdiction need not be established by a preponderance of the evidence. Walk Haydel & Associates, Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008). All uncontroverted allegations in the complaint must be taken as true, and all conflicts between the facts contained in the parties’ affidavits and other evidence must be resolved in favor of the party asserting jurisdiction. Cent. Freight Lines Inc. v. APA Transp. Corp., 322 F.3d 376, 380 (5th Cir. 2003). “The court may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.’” Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997) (quoting Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985)).
III. ANALYSIS The EEOC puts forward evidence of common ownership and officers, but not
sufficient evidence to establish personal jurisdiction over BPI. The EEOC contends that specific jurisdiction exists through a theory of alter egos. In other words, the EEOC argues that BPI is an alter ego of BPOW, and thus, the contacts of BPOW can be imputed to BPI to
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satisfy personal jurisdiction. The EEOC argues that all three Defendants are commonly owned, operate out of a shared corporate headquarters, and share officers and directors. The EEOC provides an affidavit from Connie K. Wilhite, a trial attorney for the EEOC, stating that all three corporations are owned by one individual, Johnny Morris, and share the same president, James Hagale. Additionally, the EEOC alleges that BPI and BPOW share board members. The EEOC claims that, through these individuals, BPI controls the internal business operations and affairs of BPOW and Tracker.
Even taking the EEOC’s allegations as true, the EEOC does not show that BPI controlled its subsidiary, BPOW, to such a degree that the activities of BPOW are fairly attributable to BPI. Even 100% stock ownership and commonality of officers and directors are insufficient to establish an alter ego relationship between two corporations. Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1160 (5th Cir. 1983); Gardemal v. Westin Hotel Co., 186 F.3d 588, 594 (5th Cir. 1999) (one hundred percent ownership and identity of directors and officers are, even together, an insufficient basis for applying the alter ego theory to pierce the corporate veil). Similarly, a common corporate headquarters is not sufficient to establish alter ego liability. Global 360, Inc. v. Spittin' Image Software, Inc., CIV.A3:04-CV-1857-L, 2005 WL 625493 (N.D. Tex. Mar. 17, 2005)
The EEOC alleges that BPOW and BPI owner Morris exercised control over the dayto-day operations, claiming that he was intimately involved in many of the daily decisions of BPOW stores. However, the evidence provided by the EEOC does not go that far. The EEOC presents one phone interview that includes the statement “whenever I called corporate it seemed to me that everyone was waiting for Johnny Morris to make the decision” and a declaration from an employee that, in 2007, she may have spoken to Johnny Morris to complain about another employee, though she was not sure if it was he.
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Some control over the subsidiary is part of the normal framework of a parentsubsidiary relationship, and the blending of corporate activities is insufficient to show that the subsidiary is an alter ego of the parent. N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 120 (Tex. App. 2001); Gardemal v. Westin Hotel Co., 186 F.3d 588, 594 (5th Cir. 1999) (plaintiff must show such domination of finances, policies and practices that the controlled corporation has no separate mind, will or existence of its own and is but a business conduit for its principal). Even taking the EEOC’s facts in the most favorable light, Morris’s control over BPOW is not sufficient to establish alter ego jurisdiction. In Global 360, a case with similar facts, the plaintiff had presented sufficient evidence to demonstrate that Ken Davies was the president of both the parent and subsidiary corporation, and exercised authority over all general policies and daily operations of the corporate defendants. Global 360, 2005 WL 625493, at 1. Still, the court did not find that the activities of the subsidiary could be fairly attributable to the parent, and thus did not find personal jurisdiction. Id. The Court finds that the EEOC falls short of the mark in producing sufficient evidence to demonstrate that Morris exercised “complete control” over BPOW, which is the level required by the Hargrave factors.
Although the EEOC insists that BPI and BPOW are fused, it offers as evidence nothing more than various printouts from third-party websites.1 In one of these documents, BPOW stores are referred to as “branches” of BPI. However, these printouts were prepared by unverified third-parties. If the information in such documents were to be accepted as true, it might arguably establish the existence of some corporate relationship between BPOW and BPI, which is not in dispute, but would not overcome the presumption of corporate
1 The third-party website printouts include Answers.com, Dun & Bradstreet, and LinkedIn.com. The information was not prepared or provided by Defendants. The Dun & Bradhseet document contains a disclaimer that it is an incomplete history.
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separateness. Freudensprung v. Offshore Technical Services, Inc., 379 F.3d 327, 346 (5th Cir. 2004) (court rejected plaintiff’s printouts from third-party websites attempting to establish that parent and subsidiary were indistinguishable).
The Court acknowledges that the EEOC put forward other pieces of evidence demonstrating the relationship between BPOW and BPI. The evidence included a shared website, recruitment forms, training, and staffing procedures. However, this evidence—even in its totality—is not sufficient to constitute the ‘plus’ factor and subject BPI to personal jurisdiction in Texas. In cases with comparable facts, courts have not found alter ego jurisdiction. Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 419 (Tex. App. 1997) (shared office headquarters, salaried employees on the same payroll system, shared bank account, shared officers, and fifty percent of revenue generated from subsidiary were not sufficient to assert jurisdiction over parent corporation); Global 360, Inc. v. Spittin' Image Software, Inc., CIV.A3:04-CV-1857-L, 2005 WL 625493 (N.D. Tex. Mar. 17, 2005) (shared stock ownership, office space, same president, managing director, bookkeeper, and sole employee, eighty percent of stock ownership by parent, closely related accounting systems were insufficient to establish alter ego jurisdiction); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 799 (Tex. 2002) (consolidated financial report, shared financial assistance, shared office space, shared recruitment process, same letterhead was not sufficient).
Additionally, the Court notes that the EEOC has not alleged that BPI and BPOW shared financial assets. The importance of this factor is encapsulated in two of the Hargrave factors—whether the corporations observed corporate formalities and whether they maintained separate accounting systems. Although the EEOC alleges that BPOW generated more than 75% of BPI’s total revenue, this does not mean that there was a breakdown of
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corporate formalities or that they had the same accounting system. The EEOC bears the burden of establishing that BPI’s control over BPOW’s budget is such that they “functionally became the same entity.” Administrators of Tulane Educ. Fund v. Ipsen, S.A., 450 F. App'x 326, 332 (5th Cir. 2011); Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 586 (5th Cir. 2010). Thus, the Court concludes that the exercise of jurisdiction over BPI would violate “traditional notions of fair play and substantial justice.” Asahi, 480 U.S. at 113.
That leaves the question of whether further discovery should be authorized. The Court previously granted leave for parties to supplement the record with affidavits and other evidence tending to show personal jurisdiction over BPI. The EEOC has not alleged with any specificity the additional facts regarding BPI it would hope to obtain through further discovery.
However, the Court does find that additional discovery regarding Tracker’s relationship to this case is warranted. In Defendants’ Supplemental Briefing, Defendants assert that Tracker should also be dismissed for lack of personal jurisdiction, but the EEOC has not had the opportunity to fully engage in discovery regarding Tracker’s relationship to the case. Defendants misidentified Tracker on Defendants’ Certificate of Interested Parties, rather than Tracker Marine Retail, LLC, the correct entity. Until August 24th, 2012, this error was not corrected and Plaintiff was unaware of the error. When the existing record is inadequate to support personal jurisdiction and a party demonstrates that it can supplement its jurisdictional allegations, more discovery is appropriate. Estate of Manook v. Research Triangle Institute, International and Unity Resources Group, L.L.C., 693 F. Supp. 2d 4 (D.D.C. 2010). FPP, § 2008.3 Relevancy to the Subject Matter—Discovery About Jurisdictional Issues, 8 Fed. Prac. & Proc. Civ. § 2008.3 (3d ed.). Thus, the Court will allow
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further jurisdictional discovery regarding the role and relationship of Tracker Marine Retail, LLC to BPOW and BPI.
IV. CONCLUSION For the foregoing reasons, the Court concludes that Defendants’ Motion to Dismiss
BPI for lack of personal jurisdiction should be GRANTED. The Court grants BPI’s Motion without prejudice to the right of the EEOC to conduct discovery regarding Tracker’s role in this case.
IT IS SO ORDERED. SIGNED at Houston, Texas on this the 19th day of October, 2012.

UNITE

KEITH P. ELLISON D STATES DISTRICT COURT JUDGE

11

 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

BASS PRO OUTDOOR WORLD, LLC, §

BASS PRO, INC., and

§

TRACKER MARINE, LLC

§

§

Defendants.

§

Case No. 4:11-CV-3425

MEMORANDUM AND ORDER Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint (“SAC”). (Doc. No. 76.) After considering the Motion, all responses and replies thereto, and the applicable law, the Court concludes that the Motion should be GRANTED in part and DENIED in part. I. FACTS The Court reviewed the facts of this case in a prior Memorandum and Order (Doc. No. 53) and will not do so again. The Equal Employment Opportunity Commission (“EEOC”) brings this discrimination action against Bass Pro Outdoor World, LLC (“BPOW”), and Tracker Marine, LLC (“Tracker”) (collectively, “Defendants”). The EEOC alleges that Tracker and BPOW are both owned and controlled by Bass Pro, Inc. The EEOC brings this suit pursuant to Title VII of the Civil Rights Act of 1964 as amended, and Title I of the Civil Rights Act of 1991 (“Title VII”). (Doc. No. 61, at 1-2.) Defendants assert in their Motion to Dismiss the Second Amended Complaint that the EEOC cannot allege a
1

plausible claim under § 7061 and § 7072. with regard to discriminatory hiring practices, retaliation, or record keeping. A. Discriminatory Hiring Claim
The EEOC alleges that Defendants have a nationwide standard operating procedure of denying employment to Black and Hispanic applicants for many hourly and salaried positions at their retail stores, because of their race. Id. According to the EEOC, Defendants have hired Black and Hispanic applicants at rates far below their availability in the relevant labor pools. Id. The EEOC alleges that Defendants’ operating procedure of discriminating against minorities emanates from Defendants’ top management—specifically, from owner and founder, Johnny Morris. Plaintiff alleges that, in a meeting of Store General Managers in 2004 or 2005, in response to a question concerning racial quotas, Morris said, “this company will never have a quota system because that’s not the kind of people I want working in my stores.” Id. at ¶ 42. The EEOC claims that Defendants’ hiring preference for Whites was followed by Store Managers nationwide, and that Managers nationwide were asked to hire applicants who fit “the Profile.” Id. at ¶ 43-44. Defendants allege that these policies were communicated by corporate Human Resource managers, such as Michael Rowland and Brent Day, to other managers who work for BPOW.
Next, the EEOC provides examples from ten states to establish that BPOW stores are engaging in discriminatory hiring practices nationwide. Id. at ¶ 78-125. The EEOC compares the percent of Black and Hispanic employees hired to the percent of Black employees in the respective counties that have BPOW stores. Id. at ¶ 126-176; 362-409. The EEOC identifies
1 42 U.S.C. § 2000e-5 (permitting suit on behalf of a “person or persons aggrieved”). 2 42 U.S.C. § 2000e-6 (authorizing EEOC to bring suit to remedy a “pattern or practice” of discrimination).
2

individual Black and Hispanic applicants by name whom Plaintiff claims were denied employment based on their race. Id. at ¶ 179 to 361; ¶ 412-429. B. Retaliation Claim
Second, the EEOC further claims that Defendants have, on a nationwide basis, unlawfully retaliated against employees who opposed practices that they reasonably perceived to violate Title VII. Id. Defendants’ retaliatory acts against such employees have included, but are not limited to, altering the terms, conditions, or privileges of their employment; bringing false allegations against them; subjecting them to heightened scrutiny; subjecting them to a retaliatory hostile work environment; and firing or constructively discharging them, or otherwise inducing their resignations. C. Record-keeping claim
The EEOC also accuses Defendants of failing to preserve records relevant to the determination of whether unlawful employment practices have been or are being committed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c). Id. II. LEGAL STANDARD
Rule 12(b)(6) provides for di smissal of a com plaint for “failure to state a cla im for which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When considering a Rule 1 2(b)(6) motion to dismiss, a court m ust “accept the complain t's well-pleaded facts as true an d view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). A claim “does not need detailed fact ual allegations” but m ust provide a party' s grounds for entitlement to relief, “including factual allegations that when assumed to be true raise a right to relief above the speculative level.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
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A district court will dism iss a claim unde r Fed. R. of Civ. P. 12(b)(6) only if “it
appears certain that the plaintiff cannot prove any set of f acts in support of his claim that
would entitle him to relief.” Leffall v. Dallas Indep. Sch. Dist. , 28 F.3d 521, 524 (5th Cir.
1994). However, “conclusory al legations or legal conclusions masquerading as factual
conclusions will not suf fice to pr event a m otion to dism iss.” Fernandez-Montes v. Allied
Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1992). A complain t will s urvive a motion for
dismissal only if the plaintiff pleads sufficient facts to state a claim for relief th at is facially
plausible. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Twombly, 550 U.S. at 570.
III. ANALYSIS
A. Discriminatory Hiring Claim Under § 706
Although Plaintiff’s Second Amended Complaint does not differentiate between the §
706 and § 707 claims, the Court will do so. Claims under § 706 and § 707 are distinct
pursuant to Title VII, and have differing statutory structures, including the availability of jury trial and equitable remedies.3
“A § 706 claim involves the rights of aggrieved individuals challenging unlawful
employment practices on an individual or class-wide basis, whereas a § 707 claim involves a
pattern-or-practice of systemic discrimination challenging widespread discrimination through
a company on a group basis.” Scolari Warehouse Mtks., Inc., 488 F.Supp.2d at 1143 (citing
EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1084 (C.D. Ill. 1998);
General Telephone, 446 U.S. at 324) (emphasis in original). Additionally, “the Teamsters
3 In its last Memorandum and Order, which was issued in response to Plaintiff’s Amended Complaint, the Court went into great depth as to the differences between § 706 and § 707. Some circuits have chosen to accept “hybrid” claims of 706 and 707 (for example, allowing individuals to bring pattern-and-practice claims.) Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1559 (11th Cir. 1986); Davis v. Califano, 613 F.2d 957, 961-62 (D.C. Cir. 1979). This Court finds that the two claims are separate, and no “hybrid” claim exists. “The 1991 amendments to Title VII expanded the remedies available for § 706 claims from purely equitable remedies, including backpay, to include punitive and compensatory damages, without similarly expanding the damages available for claims brought pursuant to § 707.” JBS USA, LLC, 2011 WL 3471080, at *4 (citing 42 U.S.C. § 1981 a(a)(1); EEOC v. Waffle House, Inc., 534 U.S. 279, 287 (2002)).
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framework generally applies to pattern or practice claims brought under § 707, whereas the McDonnell Douglas framework applies to individual claims brought under § 706.” JBS USA, LLC, 2011 WL 3471080, at *4 (citing Serrano v. Cintas Corp., 711 F.Supp.2d 782, 794 (E.D. Mich. 2010)).
The EEOC has worked diligently to list almost two hundred potential claimants who, according to Plaintiff, are Black and Hispanic applicants who have been denied employment by Defendants. The Court recognizes that the Complaint has evolved since Plaintiff filed its First Amended Complaint, which the Court considered in its last Motion to Dismiss. The Court finds that the Plaintiff has met the pleading standard articulated in Swierkiewicz, Twombly, and Iqbal.
The framework for evaluating a Title VII discrimination claim depends on the type of evidence presented in support of the claim. The first method a plaintiff may use to prove disparate treatment is direct evidence, defined as “evidence that, if believed, proves the fact of intentional discrimination without inference or presumption.” Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th Cir.1996). The clearest example of “direct evidence” of discrimination would be “evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents.” Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.1994); see also Mooney v. Aramco Services Co., 54 F.3d 1207, 121718 (5th Cir. 1995) (analyzing characteristics of direct evidence). Direct evidence in this context is not the converse of circumstantial evidence. Rather, direct evidence is evidence “showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated” the adverse employment action. See Moore v. U.S. Dep't of Agric., 55 F.3d 991, 995 (5th Cir.1995) (noting that because the plaintiffs presented direct
5

evidence of discriminatory animus, they “are entitled to bypass the McDonnell Douglas burden-shifting framework commonly applied in discrimination cases and proceed directly to the question of liability”). “In the rare situation in which the evidence establishes that an employer openly discriminates against an individual it is not necessary to apply the mechanical formula of McDonnell Douglas to establish an inference of discrimination.’ ” Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir.1987) (quoting Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir.1980)).
The Court considers whether the comment made by Morris could be considered direct evidence of discrimination. Plaintiff alleges that, in a meeting of Store General Managers in 2004 or 2005, Morris answered a question concerning racial quotas by stating “this company will never have a quota system because that’s not the kind of people I want working in my stores.” (Doc. No. 61, ¶ 42 [SAC].) Defendants’ hiring preference for Whites was known as “the Profile” and Plaintiff provides a few examples in which Human Resources Managers referred specifically to the Profile as a directive to hire White candidates. (Doc. No. 61, ¶ ¶ 48, 50 [SAC].)
Defendants argue that Morris’ comment was simply suggesting that quotas are illegal. In Togerson v. City of Rochester,643 F.3d 1031, 1044-45 (8th Cir.), the court held there was no discriminatory animus reflected in a city commissioner’s statement that he would not have recommended a grant had he known it included a requirement of hiring minorities and women. The Eighth Circuit observed that such a statement was entirely consistent with Title VII. Morris’ statement, however, is distinguishable from the city commissioner’s statement. In comparing this case to Togerson, Defendants ignore the latter part of Morris’ statement, in which Morris states he does not want those “kind of people working in [his] stores.”
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Plaintiff argues that the direct evidence would foreclose summary judgment, and certainly foreclose a 12(b)(6) dismissal. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309, 315 (5th Cir. 2004) (“Such comments [direct evidence] preclude summary judgment because a rational finder of fact could conclude that age played a role in Power’s decision to terminate Rachid.”) The Court agrees with Plaintiff that Morris’ statement reflects racial animus. However, the Court disagrees with Plaintiff that such direct evidence forecloses a 12(b)(6) motion. Unlike Rachid, Plaintiff has failed to link Morris’ comment to the decision to deny any individual claimant a job. If oral statements indicate the speaker’s animus, but were not delivered in the specific context of a disputed decision, the words are not considered “direct evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Workplace remarks may constitute direct evidence of discrimination if they are “1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment decision]; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996); Patel v. Midland Memorial Hospital & Medical Center, 298 F.3d 333, 343-44 (5th Cir.2002), quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222-23 (5th Cir.2001). See also Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir.2000), cert. denied, 532 U.S. 937 (2001). If the workplace remarks fail to meet these criteria, e.g., if they are vague and remote in time, or the speaker has no authority or influence over the employment decisions, they are merely “stray remarks.” See, e.g., Krystek v. University of Southern Miss., 164 F.3d 251, 256 (5th Cir.1999).
The link between the speaker’s comment and the disputed decision is most often established through temporal proximity, though if the direct evidence is egregious enough, it
7

may be able to stand on its own. See Brown v. East Mississippi Electric Power, Ass’n 989 F.2d 858 (5th Cir. 1993) (Plaintiff’s supervisor routinely called him nigger before he was constructively discharged); King v. Hardesty, 517 F.3d 1049 (8th Cir. 2008) (school administrator stated to Plaintiff, an African-American teacher, that “white people teach black kids ... better than someone from their own race.) While this Court finds that Morris’ statement displays a discriminatory attitude, it is insufficient to permit a factfinder to conclude that any particular employment decision made by BPOW was linked directly to Morris’ statement, without further information being provided—for example, information regarding the individual seeking employment, when the employment decision took place, and whether the actor who refused to hire the minority applicant had knowledge of Morris’ statement. In both Brown and King, racist comments had been directed at the plaintiffs, who were subsequently terminated or discharged. Here, there is no specific employment act that resulted from Morris’ comment. Thus, Morris’ comment does not prove “without inference or presumption” that any particular employment decision was motivated by discrimination, Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005), nor does it show on its face that an improper criterion served as a basis…for the adverse employment action.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003), cited by Gaalla v. Brown, 460 F. App'x 469, 480 (5th Cir. 2012).
Because the EEOC has not presented direct evidence of discrimination, the court will analyze its claims utilizing the McDonnell Douglas burden-shifting framework. This framework requires that the plaintiffs establish that they (1) belong to a protected class, (2) were qualified for the positions from which they were excluded, (3) were subject to an adverse employment action, and (4) were treated less favorably than similarly situated employees. Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir.2004). Plaintiff
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provides 199 potential claimants who were allegedly denied employment at BPOW.
Defendants argue that Plaintiff has still failed to allege a plausible claim with regard
to any individual. In 76 anecdotal accounts involving paper or electronic applications, the EEOC alleges no facts suggesting that BPOW knew the alleged applicant’s race.4 In only 19
of the anecdotes does the EEOC identify the alleged positions that the Black and Hispanic individuals purportedly applied for.5 For 102 of the individuals, it is not clear whether there
was an open position when they applied, and whether another individual was hired for that open position instead.6 Most significantly, the EEOC identifies the race of the person whom
Bass hired in only eight anecdotes, but fails to allege whether these individuals were similarly-situated to the Black or Hispanic applicant whom Plaintiff alleges applied.7
At the 12(b)(6) stage, the Court does not require that the Plaintiff plead a prima facie
case. Plaintiff must simply plead a plausible claim. In Swierkiewicz v. Sorema N.A., which
preceded Twombly and Iqbal, the Supreme Court rejected a heightened factual pleading requirement. Specifically, the Court held that an employment discrimination complaint need
not allege specific facts establishing a prima facie case of discrimination. This Court, in its
previous Order, reconciled Swierkiewicz, Twombly, and Iqbal, stating that a complaint need
not establish a prima facie case of employment discrimination to survive a motion to dismiss;
however, “the claim must be facially plausible and must give fair notice to the defendants of
the basis for the claim. E.E.O.C. v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d 499, 515
(S.D. Tex. 2012) (citing Moore v. Metropolitan Human Service District, No. 09-6470, 2010
4 SAC ¶¶ 184-85, 187-89, 191, 196-97, 199, 204, 206, 212, 215-18, 220-21, 225-26, 228, 230-32, 234, 236-37, 240, 243, 245-49, 251-54, 256, 259-63, 265, 267, 272-73, 276, 279-80, 284, 286, 288, 292-93, 301, 306, 31314, 318, 341, 360-361, 413, 415, 417-23, 426-27. In contrast, the EEOC specifically alleges in other anecdotes that the applicant applied “in person” or was interviewed. See, e.g., SAC ¶¶ 190, 210, 224. 5 SAC ¶¶ 188, 193, 195, 198, 202, 209, 227, 229, 259, 265, 270, 275, 293, 294, 327, 333, 361, 421, 429. 6 SAC ¶¶185, 189, 191-92, 194-97, 199-200, 206, 211-12, 215-26, 230-32, 234-37, 240-49, 251-53, 256, 25963, 267, 273, 279-80, 284, 286, 288, 296, 302, 304-06, 309, 311-14, 318-23, 328-31, 337-41, 343-48, 352, 355, 359-60, 413, 415-18, 420, 422-223, 425. 7 SAC ¶¶ 184, 238, 257, 270, 272, 274, 287, 427.
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WL 1462224, at *3 (E.D. La. April 8, 2010);Hedges v. Town of Madison, 456 Fed.Appx. 22, 22 (2d Cir. 2012); Barbosa v. Continuum Health Partners, Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y. 2010); EEOC v. SDI of Grapevine Texas, No. 3:08-CV-1606-L, 2009 WL 1469779, at *2 (N.D. Tex. May 27, 2009)).
The Court recognizes that the EEOC has not successfully pled a prima facie case for the named claimants. Plaintiff is missing vital information regarding whether Defendants were aware of a particular claimant’s race, whether a position was available when claimant applied, and whether a similarly situated individual was hired in lieu of the named claimant. However, this is precisely the type of information that Plaintiff is likely to obtain through discovery, and the Court finds that Plaintiff has adequately put Defendants on notice regarding the nature of the EEOC’s claims. Although Plaintiff has not met the requirements of a prima facie case under McDonnell Douglas, Plaintiff has provided names and details regarding the potential claimants, a description of the discriminatory comments by Morris, and information regarding discriminatory actions and comments by other top-level managers of BPOW. When considered in its totality, the EEOC’s § 706 claim is sufficiently pled to survive Defendants’ Motion to Dismiss. B. Retaliation Claim
To state a retaliation claim, the EEOC must plead facts showing, either directly or through reasonable inference, (1) protected activity; (2) an adverse employment action; and (3) a causal link between the protected activity and the adverse action. McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). The EEOC has identified five individuals on whose behalf it is bringing a retaliation claim: Eric Benitez, Laura Tarr, Denise Marstall,
10

Velecia Cruse, and Demar Watson.8 While the Court finds that Tarr and Marstall’s claims are
insufficient because the EEOC does not allege an adverse employment action, Benitez,
Cruse, and Watson have all alleged plausible claims.
Tarr and Marstell
The EEOC alleges that, after Tarr complained about sexual harassment, she was
denied a schedule change, was forced to work with the purported harasser, was denied
breaks, and was prevented from taking off Saturdays.9 Tarr eventually resigned. Similarly,
Marstall complained about a wage disparity between male and female leads to the Auburn,
New York general manager. The EEOC alleges that, after this meeting, Marstall was written
up for absenteeism, her workload increased, her actions were scrutinized, she was denied
days off, and her high quality customer service accolades were ignored.10 Plaintiff alleges
that Marstall resigned as a result. However, close scrutiny, denying days off, failing to alter a
schedule, or assigning a heavy workload are not considered adverse actions.11 While it is
appropriate to consider the cumulative effect of all the actions alleged, even aggregated,
BPOW’s responses are insufficient to allege a plausible claim of retaliation.
8 SAC ¶¶ 463-506. 9 SAC ¶¶ 486-488. 10 SAC ¶¶ 491-93. 11 Grice v. FMC Techs., Inc., 216 F. App’x 401, 404, 407 (5th Cir. 2007) (no adverse action in retaliation case where plaintiff alleged she was “watched more closely than others”); DeHart v. Baker Hughes Oilfield Operations, Inc., 214 F. App’x 437, 441 (5th Cir. 2007) (written warning for insubordination, for being argumentative, and for excessive absenteeism was not an adverse employment action because it would not “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”) (quotation and citation omitted); Soublet v. Louisiana Tax Comm'n, 766 F. Supp. 2d 723, 735 (E.D. La. 2011) (“plaintiff's complaints of increased or altered supervision, criticism and documentation, even when considered together, would not dissuade a reasonable worker from making or supporting a charge of discrimination”); Lara v. Kempthorne, 673 F. Supp. 2d 504, 518-19 (S.D. Tex. 2009) (failure to approve plaintiff's request for vacation leave was not materially adverse and would not dissuade a reasonable employee from making or sustaining a discrimination complaint). Griffin v. Citgo Petroleum Corp., 344 F. App’x 866, 868 (5th Cir. 2009) (purported denial of plaintiff’s transfer to a different unit after making a sexual harassment complaint against her supervisor did not constitute a materially adverse employment action for a retaliation claim because the transfer denial did not affect plaintiff’s employment status, benefits, or responsibilities); Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (no adverse action where plaintiff’s personal belongings were taken from her desk, she could not shut her door because locks were changed, she was chastised and ostracized by her co-workers and supervisors, and she was assigned a heavier workload);
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The Court evaluates the EEOC's request for leave to amend under Federal Rule of Civil Procedure 15, which provides that this Court “should freely give leave when justice so requires.” Cole v. Sandel Med. Indus., LLC., 413 Fed.Appx. 683, 688 (5th Cir.2011) (quoting Fed.R.Civ.P. 15(a)(2)). In considering whether to grant leave to amend, the Court may weigh multiple factors, including undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice, and futility. Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993). Although this is the EEOC’s third opportunity to submit an amended complaint, the Court finds that affording the EEOC one more opportunity to plead Tarr and Marstall’s claims is appropriate. Benitez
Benitez, who is Cuban-American, worked for Defendants as a Service Tech from 2007 until he was terminated in 2011. Benitez was terminated after he complained several times about a co-worker’s discriminatory remarks. The EEOC alleges that, although Benitez had more seniority, a White co-worker, William, was promoted to the Service Manager position. William also used racial slurs, like “Spic,” towards Benitez and the other CubanAmerican employees.12 Plaintiff alleges that Benitez complained several times about William’s behavior to the Store Manager, Scott Tarlow, and to other managers.13 Plaintiff has not provided the precise dates on which he made his complaints, except for his last complaint, regarding “other problems” he was having with William, which Benitez made in writing to Human Resources in early 2011. Within several weeks of Benitez’s last complaint, BPOW fired him.14 The EEOC alleges that his termination was based on a false accusation brought against him by William.
12 SAC ¶¶ 502-506 13 Id. 14 Id.
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BPOW argues that the timing of all of Benitez’s complaints is unspecified as to temporal proximity, and thus Plaintiff cannot prove that the protected activity was causally linked to Benitez’s termination. The Court, however, finds that Plaintiff has a plausible claim of retaliation regarding Benitez’s termination. Plaintiff presents evidence that Benitez filed a number of complaints, including a written complaint just weeks before being terminated. Plaintiff has alleged sufficient facts to survive the 12(b)(6) motion, and is entitled to discovery to develop further proof—including the dates and exact nature of Benitez’s complaints. Cruse
Cruse, a Black female, had many years of human resources experience when Defendants hired her. When Cruse started working at Defendants’ Katy, Texas store, she noticed discriminatory practices including Black applicants being rejected even when they were more experienced than the White applicants, Black employees being assigned to undesirable shifts, and Black applicants given a test that White applicants did not have to take.15 Cruse complained of the discriminatory practices to the Katy Store General Manager, Regional Human Resources Manager, and the Director of Human Resources. Once she started complaining, management retaliated against her by scrutinizing her work more intensely and assigning her undesirable work hours.16 In July 2009, Cruse complained about the retaliation. Shortly after, Regional Human Resources Manager visited the Katy Store and accused Cruse of payroll irregularities.17 Defendants fired Cruse within eight days of receiving notice of her retaliation complaint.
15 SAC ¶ 496. 16 SAC ¶ 498. 17 SAC ¶¶ 500-501.
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Defendants argue that being assigned undesirable work hours and having one’s work scrutinized are not adverse actions. However, Cruse’s complaints about the discrimination are protected acts, and her termination is an adverse action. Defendants also allege that Plaintiff has not identified the date of Cruse’s complaint. Although Plaintiff has not identified the specific date, it has provided sufficient evidence of temporal proximity—that there were eight days between Cruse’s last complaint and her termination. Plaintiff is entitled to use discovery to develop its facts further and supply the Court with more precise dates on Cruse’s termination. Plaintiff’s retaliation claim with regard to Cruse survives Defendants 12(b)(6) motion. Watson
Plaintiff alleges that Defendants retaliated against Demar Watson18, Store Human Resources Manager at the Bossier City, Louisiana store, for engaging in protected activity. After Watson opposed other managers’ unlawful discrimination, participated in EEOC’s investigation, and was involved in an internal investigation of the Bossier City store, Defendants wrote Watson up (June 2008) and gave him a negative performance evaluation (March 2009).19 The evaluation noted, “The EEOC investigation was a disaster.”20 After Watson terminated an employee in August 2011 for making derogatory comments and threats about race, sex, and age concerning another employee, BPOW terminated Watson in retaliation on September 7, 2011.21
Defendants argue 1) the write-up in 2008 is not an adverse action, 2) the performance evaluation in 2009 was over a year after the EEOC investigation and Watson’s initial
18 Although neither side discusses Watson’s race or ethnicity, the Court is willing to assume, solely for purposes of the pending motion, that he is within a protected class. 19 SAC ¶¶ 470-75, 484. 20 Id. 21 Id.
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complaints, 3) Watson was disciplined because he mishandled the EEOC investigation, not because he participated in it, and 4) BPOW accepted Watson’s recommendation and ordered termination of the employee making derogatory comments and threats.
Even if the write-up of Watson in 2008 is not an adverse action, it is logical and appropriate to consider the cumulative effect of all retaliatory actions rather than compartmentalizing them and evaluating them individually. See, e.g., Sandres v. State of La., 2010 WL 3782122, at *9 (M.D.La. Sept. 3, 2010) (“a reasonable jury could find that all of the acts alleged by the plaintiff collectively could dissuade a reasonable worker from making or supporting a charge of discrimination”); Moore v. Cricket Communications, Inc., 764 F. Supp. 2d 853, 862 (S.D. Tex. 2011); (“To hold otherwise would prevent remedies for retaliation in the form of “death by a thousand cuts,” and would ignore the context-specific nature of the standard articulated in Burlington Northern”); Devin v. Schwan's Home Serv., Inc., 491 F.3d 778, 787–88 (8th Cir.2007) (“Nothing in White precludes this court from considering an employer's actions cumulatively when determining whether a reasonable employee would be dissuaded from making a discrimination claim.”); Sanford v. Main Street Baptist Church Manor, Inc., 327 Fed.Appx. 587, 599 (6th Cir.2009) (“while some of the incidents alone may not rise to the level of an adverse employment action, the incidents taken together might dissuade a reasonable worker from making or supporting a discrimination charge”); Apodaca v. Chertoff, 161 Fed.Appx. 897, 900 (11th Cir.2006) (“In determining whether an adverse employment action occurred, the cumulative effect of several individual actions may be considered.”) Defendants concede that Watson’s performance evaluation that resulted in lower pay, participation in the EEOC investigation, and eventual termination would be considered adverse actions. Defendants argue that Watson’s poor performance evaluation was too long after his participation in the EEOC investigation to be causally
15

linked. However, this is a conclusion not supported by the facts. Watson’s performance evaluation specifically referenced the EEOC investigation.
Additionally, the Court must “accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). When the evaluation noted, “The EEOC investigation was a disaster,” it can be read as Defendants wish, but it can also be read to mean that Watson was chastised for his participation in the EEOC investigation. Thus, the Court finds that Plaintiff has alleged facts sufficient to proceed on Watson’s claim. C. Discriminatory Hiring Claim Under § 707
“Under § 707, the EEOC may investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission.” EEOC v. Princeton Healthcare System, No. 10–4126(PGS), 2012 WL 1623870, at *16 (D.N.J. May 9, 2012) (citing 42 U.S.C. § 2000e–6(a)–(e)). To prevail, plaintiffs must demonstrate more than “the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. [Rather they must show] by a preponderance of the evidence that discrimination was the [defendants'] standard operating procedure—the regular rather than the unusual practice.” International Brotherhood of Teamsters v. United States, 431 U.S. at 336, 97 S.Ct. at 1854.
In Plaintiff’s former complaint that was considered by this Court, Plaintiff fell short of the pleading requirement, arguing that, of the 600 managers at Defendants’ retail stores, only about 10 to 15 were Black. E.E.O.C. v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d 499 (S.D. Tex. 2012). This Court noted that, while such evidence might be enough to allege a plausible claim with regard to Black managers, it was insufficient to support a claim that Defendants had a nationwide standard operating procedure of discouraging the hiring of
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Black applicants. Id. Plaintiff has worked diligently to amend its complaint, and now provides statistical information reflecting the disparity in Black and Hispanic hires—beyond managerial positions—as well as anecdotal evidence of a pattern or practice of discrimination by Defendants.
Defendants argue in their Motion that the combination of Plaintiff’s individual, statistical, and anecdotal evidence in the SAC is still insufficient to withstand a 12(b)(6) motion. The Court disagrees. Even though the statistical analysis employed in the SAC may be insufficient to establish a 707 claim on its own, it should be considered in conjunction with the other evidence presented by Plaintiff. A prima facie case of disparate treatment may be established by the use of statistics if a “gross” disparity in the treatment of workers based on race is shown.5 See Hazelwood School District v. United States, 433 U.S. 299 (1977). Gross statistical disparities, standing alone, may justify an inference of discriminatory motive. See Payne v. Travenol Laboratories, Inc., 5 Cir.1982, 673 F.2d 798, 817; Williams v. New Orleans Steamship Association, 5 Cir.1982, 673 F.2d 742, 749. However, even if the statistical evidence does not demonstrate a “gross” disparity, it may still be probative. “The statistical showing of disparate result may also be buttressed with evidence of a history of discrimination practiced by the employer, individual instances of discrimination, and opportunities to discriminate in the employer's decision-making processes. If the statistical disparity is insufficient alone to establish a prima facie case, the plaintiff may get over his or her initial hurdle by combining statistics with historical, individual, or circumstantial evidence. See Payne, 673 F.2d at 817. Thus, the Court considers the EEOC’s statistics in conjunction with the other evidence they have presented.
The Court recognizes that statistical information must be analyzed with the particular context of the case in mind. For example, in Teamsters, plaintiffs compared the percentage of
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Black line drivers to the percentage of Blacks in the general population of various cities. 431 U.S. at 337. However, in Hazelwood, plaintiffs alleged racial discrimination in teacher hiring in a public school district. Their statistical evidence compared the percentage of Black teachers hired by the district with the percentage of Blacks in the geographical area. The Court held that the proper population encompassed only those Blacks qualified as teachers and that plaintiffs' suggested population had little probative value in the context of the claim asserted. In short, statistics must be meaningful—“their usefulness depends on all of the surrounding facts and circumstances.” Teamsters, 431 U.S. at 340.
Defendants argue here that the statistical evidence should be disregarded because it is not applicant flow data. If provided, flow data would measure the percentage of all applicants actually hired to establish the expected outcome. For example, if 1000 people applied and 100 were applied, then the overall hiring rate would be 10%. With neutral hiring, the expected hiring rates for all classes would be 10%. Applicant flow can sometimes be a more accurate measure of an employer's hiring practices than general population comparisons when, for example, a greater percentage of qualified Blacks apply for work than qualified whites. Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 824 (5th Cir. 1982). However, applicant data “is frequently unavailable, and, when available, it is often distorted by inadequate or excessive recruiting efforts, improper deterrence of applicants, unqualified applicants, multiple applications by the same applicant, or lack of specificity or improper groupings.” Wheeler v. City of Columbus, Miss., 686 F.2d 1144, 1152 (5th Cir. 1982). Furthermore, while applicant data might be relevant, “(t)he absence of such evidence, however, will not prevent plaintiffs from recovering.” Wilkins v. University of Houston, 654 F.2d 388, 396 (5th Cir. 1981). Taking Plaintiff’s facts as true, most positions at BPOW
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require no formal training.22 Thus, the percentage of minorities in the county can be compared to the percentage within the relevant store to provide reliable statistical data regarding Defendants’ hiring practices, at least at the 12(b)(6) stage. Defendants argue that the relevant labor market must be drawn from the area in which each specific store draws its applicants. However, in light of Plaintiff’s allegations that job fairs for specific stores are intentionally held in areas with fewer minorities,23 the county data—particularly at this stage of the proceedings—will suffice.
The EEOC was provided hiring data for the aforementioned 24 of 56 Defendants’ retail stores. According to that data, 23 (95.8%) of the 24 stores hired a percentage of Black employees lower than the percentage of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file. SAC ¶ 130. Also, according to that hiring data, 17 (70.8%) of the 24 stores hired a percentage of Hispanic employees lower than the percentage of Hispanic employees in the county in which the store is located. SAC ¶ 364. The year-by-year employment data from 2007 to 2010 for each store regarding total employment, sales positions and managerial positions show that there were 186 instances in which no Blacks were employed in sales or managerial positions at the store and 214 instances in which no Hispanics were employed in sales or managerial positions at the store. Thus, Defendants repeatedly achieved 400 “inexorable zeroes” in employing Blacks and Hispanics at certain stores, as decried by the Supreme Court in Teamsters, 431 U.S. at 342. Comparing the number of Black employees hired to the representation rate of Black employees in the county in which each store is located indicates that Defendants had an aggregate net shortfall of 1,097 Black employees and 187 Hispanic employees. SAC ¶¶ 131,
22 SAC ¶¶ 64, 66. 23 SAC ¶59.
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365. According to Defendants’ 2007 EEO-1 reports, out of a total employment of 8,186
employees in 43 retail stores, only 365 (4.5%) employees were Black. SAC ¶ 132. According
to the hiring data for 24 of Defendants’ retail stores that Defendants produced to the EEOC
during the administrative investigation, out of a total 14,374 employees hired during the
relevant time period, only 1,207 (8.4%) of the hires were Hispanic. SAC ¶ 363. Plaintiff is
not required to engage in a full statistical analysis in the Complaint, and the Court finds that
the SAC sets forth well-pleaded facts supporting the claim of systemic hiring discrimination
against Blacks and Hispanics.
Defendants also allege that Plaintiff has only alleged four instances in three stores
where “the Profile” was purportedly tied to race. While “the Profile” is not explicitly
mentioned in all of Plaintiff’s anecdotes, Plaintiff has listed ten stores across the nation,
where managers displayed conduct towards Blacks and Hispanics that adheres to the Profile
and tolerates discriminatory conduct in the store.24 These anecdotal accounts, considered
24 See Doc. No. 61, SAC ¶ 80-84 (describing how the Bossier City, Louisiana store aggressively enforced the Profile, the Store General Manager instructed the customer service manager not to hire any more Blacks, the customer service manager objected to a Black applicant because the “Bubba Clientele” would be prejudiced against her); SAC ¶ 85-86 (the Concord, Iowa store directed that all hiring had to be done by the Profile, regional manager explained that Black employee did not fit the Profile, restaurant manager who complained about directive was fired); SAC ¶ 87-92 (the Katy, Texas store General Manager called Black employees “lazy, pimps, and Monkeys” and Hispanics “wetback, vato, spic, Pedro, and Mexican,” and made comments to human resources stating that “it was getting a little dark…you need to hire some White people.” Black applicants had to take a specialized exam that White applicants did not.); SAC ¶ 93-104 (Job fairs located in predominantly white areas, though the store is located in a more integrated area, HR Manager stated “we just kick out the Black applicants at a much higher rate than we do the White applicants who have less outdoor experience,” Black employees were called racial slurs.); SAC ¶ 105-109 (Charlotte, North Carolina store screened out applicants if they didn’t fit the “demographics,” intentionally lost minority applications, Defendants took no action when lone Black manager’s store identification card was defaced with “nigger.”); SAC ¶ 93-104 (a White BPOW employee at Hampton, Virginia told a Black applicant “niggers aren’t allowed to work here.”); SAC ¶ 111-114 (General Manger in Broken Arrow, Oklahoma sarcastically criticized a Restaurant General Manager, stating “you got enough niggers hired yet?,” also criticized the Assistant General Manager for hiring Hispanics, stating that he was hiring the “Rio Grande Express.”); SAC ¶ 115-120 (Clarksville, Indiana Loss prevention agent discarded employment applications because applicant’s name “sounded like a ‘nigger’ name,” and applied the Profile to the sales floor, claiming that minorities “didn’t fit the profile of what we want in the store…they look like they are from the projects across the street.”); SAC ¶ 121-125 (Leeds, Alabama store recruited only white loss prevention agents, Spanish Fort Alabama store employee called two Black employees “worthless niggers,” the complaint regarding the slur was never investigated, HR manager at the same store instructed all department managers that “you can’t hire all blacks.”).
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with the 200 or so individual applicants who were denied employment at BPOW, combined with the statistical data, are sufficient to survive the Motion to Dismiss. D. Record Keeping Violation
Plaintiff alleges that Defendants have failed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to preserve records relevant to the determination of whether unlawful employment practices have been or are being committed. This Court found Plaintiff’s record-keeping claim well-pled in the last Order considering this matter. Bass Pro; 884 F. Supp. 2d at 522 (S.D. Tex. 2012). In Defendants’ Motion to Dismiss, Defendants presents no new arguments, rather Defendants simply incorporate previous arguments to preserve and not waive them. Thus, the record-keeping claim will not be dismissed. E. Statute of Limitations and Jury Trial
Defendants argue that any claims based on acts occurring outside the Title VII Statute of Limitations are time-barred. As this Court previously ruled, the 300 day period applies to all of the EEOC’s claims, whether they are brought under § 706 or § 707. Id.at 523. The Court excludes these claims, except where they provide background information. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (noting that a plaintiff may use the facts underlying a time-barred claim “as background evidence in support of a timely claim.”
Defendants also argue that allowing one jury to oversee individualized hearings for the 100+ class members spread throughout the country is impracticable. Furthermore, Defendants argue that bifurcation of the proceeding is constitutionally prohibited as it would violate the Due Process clause and the Seventh Amendment. The question of case manageability, while important, does not foreclose any of Plaintiff’s claims under 12(b)(6). The Court reserves judgment on the procedure—including possible bifurcation—that would
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be used in the event of a trial, and whether that would violate Defendants’ constitutional rights IV. CONCLUSION
The Court finds that the EEOC’s § 706 discriminatory hiring claim, § 707 pattern-orpractice, and record-keeping claim survive Defendants’ 12(b)(6) Motion. The Court finds that Plaintiff’s retaliation claims regarding Cruse, Benitez, and Watson survive the motion. However, the Court grants Defendants’ Motion with regard to Tarr and Marstall. Plaintiff is given leave to amend its Complaint with regard to Tarr and Marstall’s retaliation claims, and must do so within fourteen days of this order. Thus, Defendants’ Motion is GRANTED in part and DENIED in part.
IT IS SO ORDERED. SIGNED at Houston, Texas on this the 18th day of March, 2013.

UNITE

KEITH P. ELLISON D STATES DISTRICT COURT JUDGE

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 </s> Case 4:11-cv-03425 Document 104 Filed in TXSD on 04/15/13 Page 1 of 255

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

BASS PRO OUTDOOR WORLD, LLC

§

and TRACKER MARINE, LLC,

§

§

Defendants.

§

CIVIL ACTION NO. 11-CV-3425 HON. KEITH P. ELLISON
JURY TRIAL DEMANDED

THIRD AMENDED COMPLAINT OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

TO THE HONORABLE UNITED STATES DISTRICT COURT: By Memorandum and Order dated March 18, 2013 (ECF. No. 99) and Order dated March
28, 2013 (ECF. No. 103), the Court provided EEO C with leave to f ile a Third Am ended Complaint by April 15, 2013 to a mend EEOC’s retaliation allegations regarding Laura Tarr and Denise Marstall. In filing this Third Am ended Complaint, EEOC reserves a ll rights and does hereby not intend to waive any claim s. EEOC is aware that the Court has dism issed Bass Pro, Inc. from this action.
NATURE OF THE ACTION This is an action under Title VII of the Ci vil Rights Act of 1964 as am ended, and Title I of the Civil Rights Act of 1991 (“ Title VII”) to correct unlawful em ployment practices on th e basis of race, national origin, and retaliation, and to provide appropriate relief to Black and Hispanic applicants and to employees who were adversely affected by such practices. As alleged with greater particularity belo w, Defendants have engaged in, and continue to engage in,

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unlawful discrimination by (1) maintaining a standard operating procedure of denying employment to Black and Hispanic applicants for positions in their retail stores nationwide, and otherwise discriminating in hiring ag ainst Blacks on the basis of race, and against Hispanics on the basis of national origin; and (2) retaliating against empl oyees who opposed actions by Defendants that those em ployees reasonably perceived to c onstitute unlawful em ployment discrimination. Additionally, Defe ndants unlawfully destroyed, or otherwise failed to preserve, records relevant to whether unlawful employment practices have been or are being committed, in violation of the applicable record-keeping regulations issued pursuant to Section 709 (c) of Title VII, 42 U.S.C. § 2000e-8(c).
JURISDICTION AND VENUE 1. Jurisdiction of this C ourt is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is auth orized and instituted pursuant to Sections 706(f)(1) and (3) and 707(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and 2000e-6, and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The unlawful employment practices alleged in this Complaint were committed in numerous locations across the United State s, including within the ju risdiction of the United States District Court for the Southern District of Texas, Houston Division. Venue is appropriate in this Court.
PARTIES 3. Plaintiff, the Equal Employment Opportunity 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 au thorized to bring this action by Sections 706(f)(1) and (3) and 707 of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3) and 2000e-6.
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4. At all relevant tim es, Defendant Ba ss Pro O utdoor World, LLC (“BPOW ”), a Missouri limited liability company, has continuously been doing business in the State of Texas and the City of Katy, and has continuously had at least 15 employees. BPOW may be served with process through its registered agent, CT Corporation System, 350 N. St. Paul St., Ste. 2900, Dallas, Texas 75201.
5. At all relevant tim es, Defendant Track er Marine, LLC (“Tracker”), a Missou ri limited liability company, has continuously been doing business in th e State of Texas and the City of Katy, and has continuously had at leas t 15 em ployees. Tracker m ay be served with process through its registered agent, CT Corporation Syst em, 120 South Central Avenue, Clayton, Missouri 63105.
6. At all relevant tim es, Defendant Bass Pro, Inc. (“BPI”), a Delaware corporation, has continuously been doing busin ess in the State of Texas and the City of Katy, and has continuously had at least 15 em ployees. BPI m ay be served with process through its registered agent, The Corporation Trust Company, Cor poration Trust Center , 1209 Orange Street, Wilmington, Delaware 19801. BPOW, BPI, and Track er shall sometimes herein collectively be referred to as “Defendants” or “Bass Pro.”
7. At all relev ant times, the three Defenda nts have continuously been employers engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
8. BPOW is a chain of almost 60 sporting e quipment retail outlets or megastores with a special em phasis on fishing, hunting and cam ping. The BPOW stores also sell a variety of “Bass Pro” branded items. Tracker is one of the largest boat manufacturers and retailers in the country and operates showroom s located within BPOW megastores. BPI is the parent and holding company for various Bass Pro-related subsidiaries, with the largest being BPOW. BPI’s
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other subsidiaries also include Tracker and several other “Bass Pro” branded businesses including, but not lim ited to, restaurants opera ted out of the m egastores, on-line retail and discount outlet mail order businesses, and a resort. BPOW has historically generated more than 75% of the total revenues of BPI.
9. This Court has personal jurisdictio n over BPI because th e ostensibly separate nature of BPI, BPOW, and Tracker is a legal fiction. BPI has substantial control over the general policies and adm inistration of both BPOW and Tracker, and controls the internal business operations and affairs of BPOW and Tracker to a degree greater than th at normally associated with common ownership and directorship. The f act that all three Defendants are a s ingle entity has evidentiary support, or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
10. Examples of how BPI controls the inte rnal business operati ons and af fairs of BPOW and Tracker, and how it exercises su bstantial control over the general policies and administration of BPOW and Tracker, are set forth below.
a. BPI, BPOW, and Tra cker are priv ately held and commonly owned by founder Johnny Morris, who serves as the sole Director for BPI and General Partner or Board Member for many other Bass Pro entities including at least Tracker.
b. BPI, BPOW, and Tracker share a common corporate headquarters and business address: 2500 E. Kearney St., Springfie ld, Missouri. All three entities operate out of that headquarters. The ter m “corporate” as used herein refers to Defendants’ operations above the store level, such as headquarters or regional operations.
c. BPI has identified itself to the M issouri Secretary of State as a busin ess that has “multiple branches,” including all BPOW stores, as well as m ultiple executives including all General Managers for BPOW stores. The term s “General Manag er” or
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“Store General Manager” are synonym ous as used herein and refe r to the top-ranking official at a Bass Pro store. Additionally, BPI is identified as a company with about 12,000 employees, and is described as a reta iler of sporting goods, including hunting, fishing, camping and backpacking equipm ent (BPOW’s functions), as well as a boat dealer (Tracker’s function). BPI has also re ported annual sales in the m illions of dollars and has a s ales territory of U.S./Canada, whic h corresponds to the lo cations of BPOW stores. BPI’s busin ess profiles identify it as a com pany that “operates” m ore than 50 BPOW stores in the U.S. and Canada. Thus, BPI’s profile describes the business allegedly operated by B POW. Defendants’ own public statements constitute admissions that the three of them are a single entity, and that their purported separateness is a fiction.
d. BPI’s mission statement indicates that the company aspires: “[t]o be th e leading Merchant of Outdoor Recreational Pr oducts, Inspiring People to Love, Enjoy and Conserve the Great Outdoors.” This mission is carried out by both BPOW and Tracker.
e. BPI Owner and Director Morris ex ercises authority o ver corporate operations and decisions of the three Defendant s. Mor ris is invo lved in day- to-day operations and decision-m aking for BPOW stores and Tracker sho wrooms. W hen contacting the corporate headqua rters for all Def endants with questions about m arketing strategies and other issues, som e BPOW General Managers found th at corporate staff could or would not provide a response withou t Morris’s guidance. Further, m anagers at the stores sometimes contacted Morris directly to seek hi s input concerning com plaints and inquiries.
f. James Hagale has served as the Pr esident and COO of BPI during the relevant time period. H agale also performs or has performed the duties of President and COO of BPOW and Tracker, as well as for other “Bass Pro” branded entities such as BPS
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Catalogue, L.P. As a result, Hagale has res ponsibility for oversight of BPI, BPOW and Tracker.
g. In addition to Morris and Hagale, BPI and BPOW have at least the following officers in common: Tim Eisenhour is or has been Director of Tax and/or Vice President for both BPI and BPOW ; Stan Lippleman is the Vice Presid ent of Marketing for both BPI and BPOW; Larry Wilcher serves or has served as Secretary for BPOW and is also personally knowledgeable about BPI' s administration and management; and Mike Rowland serves as Vice Pres ident of Hum an Resources f or BPI and also supervises Human Resources personnel employed by BPOW.
h. Top managers of Tracker in the BP OW stores, as well as m anagement for the restaurants in the stores, report or reported during the re levant time period to th e top BPOW manager in each store and, in som e instances, also report or reported to a corporate manager in the relevant division of BPI.
i. Store Human Resources Manage rs for BPO W perform t he personnel/human resources functions for the in -store Tracker showrooms, and the hum an resources function of both BPOW and Tr acker is overseen by B PI. The hum an resources/labor relations functions of the three Defendants have been concentrated at th e Defendants’ shared headquarters.
j. Rowland, BPI’s Vice P resident of Hum an Resources, supervises Brent Day, Director of Human Resources (Retail) for BPOW. John Sargent and Jill Klimas are, or were, Regional Human Resources Managers for BPOW, who also have worked under Rowland, each handling 15 or m ore stores. Although Sargent oversaw a BPOW region, he worked from the Defendants’ shared hea dquarters. Managers at the various BP OW
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locations could bypass other Hum an Resources Managers, including Day, Klim as and Sargent, and take their complaints or concerns directly to Rowland.
k. Applicants for BPOW's General Ma nager and Store Hum an Resources Manager positions are recruited, interviewed, and selected by BPI off icers located at the corporate headquarters. The interviewers for such positions at least so metimes include BPI corporate management and the company president. In addition, in or about 2008, the same Human Resources Managers, who we re working under BPI’s Rowland, began supervising and formally evaluating BPOW Store Human Resources Managers.
l. A standard employment application is utilized for hiring at B POW stores, including for the BPOW departments, the Tr acker department and, in about half the stores, the restaurants owned by BPI. Furthe r, the personnel forms used for hiring, wage changes, job reassignments, term inations and other em ployment actions for all three entities are almost always generated on “Bass Pro” letterhead or bear the BPI name. For example, documents submitted by or on beh alf of the BPOW stores to th e Internal Revenue Service, including documentation of the Work Opportunity Tax Credit and IRS Form 8850, Pre-Screening Notic e and Certification Request for the Work Opportunity and Welfare-to-Work Credits, lis t the re levant employer as “Bass Pro, Inc. & Subsidiaries, Loc. #.”
m. Employment training for the BPOW stores and Store Hum an Resources Managers, in particular, is not lim ited to local or in-store training, but involves m anagers from other locations assigned by m anagement at the shared headquarters. For example, Amber Quarles served as the Store Hum an Resources Manager at the Ha mpton, Virginia BPOW store in the mid-2000’s. Quarles was trained, in part, by Store Human Resources Managers from the Nashville, Tennessee and Auburn, New York stores.
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n. BPOW and Tracker, as well as o ther “Bass Pro” entities and related companies owned by BPI, share an intern et website: www.basspro.com. It is the common retail/public relations website us ed by and identified with all of BPI’s subsidiaries, including BPOW and Tracker. The website lists, among many other things, all “store locations” as well as job postings and recruitment practices for both BPOW and Tracker. It provides an em ail address for the submission of applications which is common to all em ployment positions, including both hou rly and “sa laried/management opportunities” for BPI subsidiaries, encompassing not only BPOW and Tracker, but also separately incorporated Bass Pr o restaurants, retail outlets and recreation centers. Job opportunities for these BPI subsidiaries ar e identified not by com pany, but by BPO W “location.” A notice posted on the website encourages job applicants to apply for hourly job openings available at BPI subsidiaries, also identified as BPOW “locations, ” in person at Defendants’ shared headquarters on an on-going, daily basis. Further, the website informs individuals inte rested in s alaried positions “relevant to [ their] experience” in the various “departments” located at “our General Office Headquarters in Springfield, MO” to forward their resumes for consideration for fut ure salaried opportunities to: prostaffr@basspro.com.
o. All BPI-owned companies, including BPOW and Tracker, s hare common company practices and policies, including th ose related to cus tomer service and the handling of on-line purchases and returns, as set forth on the www.basspro.com website.
p. In its Certif icate of Interested Par ties filed with the Court (R. Doc. 20) , before BPI and Tracker were added as parties to this lawsuit, BPOW listed itself, BPI and Tracker as parties with a financial interest in the ou tcome of this lit igation, thereby further exposing the fiction that the three entities are separate ra ther than a sing le entity.
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BPI, BPOW and Tracker are no t separate s uch that d isregard of the legal fiction is necessary to prevent fraud or injustice, and the exercise of personal jurisdiction over all three Defendants is proper.
Defendants Constitute an Integrated Enterprise, or Single Employer, and Are Each Jointly and Severally Liable for the Violations of Title VII Alleged Herein 11. Defendants are jointly and severally liable for the discriminatory acts and claim s asserted herein becau se, as set fo rth more fully in p aragraphs 4 to 10 above, the facts demonstrate that BPOW, Tracker, and BPI constitute an integrated enterprise. In summary, at all relevant times, BPOW, Tracker, and BPI have ope rated out of the sam e corporate headquarters with shared personnel, policie s and m anagement, and have had interrelated operations, centralized control of labor relations, common m anagement and comm on ownership and financial control. By their own admission, BPI, BPOW and Tr acker are all parties with a financial interest in the outcome of this case. 12. All of the a cts and f ailures to act alle ged herein were duly perform ed by and attributable to each Defendant, each acting as a successor, agent, alter ego, e mployee, indirect employer, joint em ployer, integrated enterprise, and/or under the direction and control of the other Defendants. Said acts and fa ilures to act were within the scope of such agency and/o r employment, and each Defendant participated in, approved and/or ratified the unlawful acts and omissions by Defendants com plained of herein. Whenever and wherev er reference is m ade in this Complaint to any act by a Defendant, such allegations and reference shall also be deem ed to mean the acts and failures to act of all th ree of the Defendants acting individually, jointly, and/or severally.
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STATEMENT OF CLAIMS 13. More than thirty days p rior to the institu tion of this lawsuit, a charge was f iled with the Commission by Stuart J. Ishimaru, a member thereof, alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled.
COUNT ONE: DEFENDANTS HAVE DISCRIMINATED AGAINST BLACKS AND HISPANICS BY DENYING THEM EMPLOYMENT AT DEFENDANTS’ STORES NATIONWIDE 14. As described below, sin ce at least Nove mber 2005, Defendants have engaged in unlawful employment practices at their retail stores and f acilities nationwide, in violation of Sections 703(a) and 707(a) of Title VII, 42 U.S.C. §§ 2000e-2(a) and 2000e-6(a).
Scope and Nature of the Discrimination 15. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Blacks as a class on a company-wide basis.1 16. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics as a class on a company-wide basis. 17. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Blacks as a class at some or all of their retail stores. 18. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics as a class at some or all of their retail stores. 19. As alleged with m ore particularity elsewhere herein, Defendants’ hiring discrimination against Blacks is Defendants’ st andard operating procedure on a com pany-wide basis.

1

Consistent with Federal Rule of Civil Procedure 8(d), EEOC asserts that all of its allegations subsume any

related “lesser included offenses.” For example, EEOC’s allegations that Defendants discriminate on a c ompany-

wide basis subsumes its allegations concerning discrimination at individual stores. If the Court or a jury dismissed

EEOC’s allegations of company-wide discrimination, the “lesser included offense” of discrimination at individual

stores may still be considered by the fact-finder.

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20. As alleged with m ore particularity elsewhere herein, Defendants’ hiring discrimination against Hispanics is Defendants’ standard oper ating procedure on a com panywide basis.
21. As alleged with m ore particularity elsewhere herein, Defendants’ hiring discrimination against Blacks is Defendants’ standard operating procedure at some or all of their retail stores.
22. As alleged with m ore particularity elsewhere herein, Defendants’ hiring discrimination against Hispanics is Defendants’ standard operating procedure at some or all of their retail stores.
23. As alleged with m ore particularity elsewhere herein, irres pective of whether hiring discrimination is a com pany-wide practice, Defendants’ hiring discrimination against Blacks as a class, at any one or more of their retail stores, constitutes systemic discrimination in violation of Title VII.
24. As alleged with m ore particularity elsewhere herein, irres pective of whether hiring discrimination is a com pany-wide practice, Defendants’ hiring discrimination against Hispanics as a class, at any one or more of their retail stores, constitutes systemic discrimination in violation of Title VII.
25. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Blacks in regard to some or all non-managerial positions.
26. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Blacks in regard to some or all managerial positions.
27. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics in regard to some or all non-managerial positions.
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28. As alleged with m ore particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics in regard to some or all managerial positions.
29. The part-time and f ull-time retail store positions for which Defendants denied employment to Black and Hispanic applicants include, but are not limited to, cash clerk, cashier, customer relations asso ciate, customer service represen tative, customer service representativ e credit, greeter, cashier/greeter, loss prevention, receiving clerk, sales as sociate, stocking associate, “PACE” employees, Santa’s Wonderland, “lead,” “team lead,” and all supervisory and managerial positions.
30. As alleged with m ore particularity elsewhere herein, Defendants’ hiring discrimination against Blacks and Hispanics w ill be supported by d irect evidence, evidence of centralized, systemic practices and/or policies, num eric and/or statistical evidence, and/or anecdotal evidence.
31. Defendants’ hiring discrimination against Blacks as a class, as alleg ed with more particularity herein, co nstitutes an unlawful “pattern or practice o f resistance to the f ull enjoyment of any of the rights secured by” Title VII, in violation of Section 707(a).
32. Defendants’ hiring discrim ination against Hi spanics as a class, as alleged with more particularity herein, constitutes an unlawf ul “pattern or practice of resistance to the f ull enjoyment of any of the rights secured by” Title VII, in violation of Section 707(a).
33. Defendants’ hiring discrimination against Blacks as a class, as alleg ed with more particularity herein, constitutes an unlawful employment practice in violation of Section 703 of Title VII.
34. Defendants’ hiring discrim ination against Hi spanics as a class, as alleged with more particularity herein, constitutes an unlawful em ployment practice in violation of Section 703 of Title VII.
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Case 4:11-cv-03425 Document 104 Filed in TXSD on 04/15/13 Page 13 of 255 35. Defendants’ hiring discrim ination, as alleged with m ore particularity elsewhere
herein, against any one of the Black Identified Aggrieved Individuals named herein, or against any person in like or r elated circumstances, constitutes an unlawful employment practice in violation of Section 703 of Title VII.
36. Defendants’ hiring discrim ination, as alleged with m ore particularity elsewhere herein, against any one of the Hispanic Identified Aggrieved Individuals nam ed herein, or against any person in like or related circum stances, constitutes an unlawful employment practice in violation of Section 703 of Title VII.
37. For each and every violation of Section 703 alleged herein, and as to each victi m of such unlawful conduct, EEOC reserves the righ t to seek all rem edies deemed appropriate by the Court or a jury, including but not lim ited to damages pursuant to 42 U.S.C. § 1981a(a)(1), back pay, instatement, and/or other available relief.
38. For each an d every vio lation of Section 707(a) alleged herein, and as to each victim of such unlawful conduct, EEOC reserves the right to seek all remedies deemed appropriate by the Court or a ju ry, including, but not lim ited to, back pay dam ages, instatement, and/or other available relief.
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Defendants Have Maintained a Standard Operating Procedure of Denying Employment to Blacks Based on Race and Hispanics Based on National Origin at Stores Nationwide 39. Plaintiff re-alleges and incorporates by re ference paragraphs 1 to 38 above as if set forth fully herein. 40. As described in paragraphs 41 to 125 below, Defendants have m aintained a standard operating procedure of denying employment to Black applicants based on their race and Hispanic applicants based on their national origin at stores nationwide. 41. Defendants’ standard operating procedure of discriminating against minorities in hiring emanates from Defendants’ top m anagement, and, in particular, from BPOW owner and founder, John “Johnny” Morris, and has been comm unicated to, repeated by, and carried out by Store General Managers. 42. In a meeting of Store General Managers in 2004 or 2005, Morri s made clear he did not want Defendants to hire minority applicants, such as Blacks and Hispanics. Answering a question concerning racial quotas at that meeting, Morris said, “this company will never have a quota system because that’s no t the kind of people I wan t working in m y stores.” He made similar comments while attending one or more store openings. 43. Morris’s statement regarding not wanting minorities at h is stores constituted a directive to Store General Mana gers nationwide to f avor Whites in the hiring process and to discriminate against minorities. 44. Defendants’ hiring preference for Whites was known and followed by store managers throughout the company and was sometimes referred to simply as “the Profile.” Only White applicants fit the Profile. 45. The centralized and p ervasive nature of Defendants’ discri minatory hiring practices is shown by the evidence set forth in this s ection and elsewhere in this Com plaint,
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including in the numeric allegations set forth below in paragraphs 125 to 176 and paragraphs 362 to 409.
Defendants’ Top Corporate Managers Encourage and Assist Store Managers In Implementing Discriminatory Hiring Practices in Their Retail Stores 46. Plaintiff re-alleges and incorporates by re ference paragraphs 1 to 45 above as if set forth fully herein. 47. Defendants’ corporate Hu man Resources Managers and store m anagers communicated the corporate racial hiring directive — the Profile — to other managers. 48. For example, at the Bossier City, L ouisiana, store, in 2005, when a newly hired Store Human Resources Manager was asked to justify his inte rviewing a Black f emale job candidate, he informed the store Assistant Genera l Manager that he was going to offer a job to the Black applicant. In response, the Assi stant General Manager told the Store Hum an Resources Manager that he could not hire her as she did not fit the Profile. W hen this new Store Human Resources Manager asked wh at the Profile was, the Assi stant General Manager stated, “We don’t hire niggers.” The Assistant General Manager was hired before the Bossier City store opened in late 2003, and remained there enforcing the racial preference for Whites for about five years. 49. Defendants’ illegal use of the Profile to discriminate against minorities continues to the present. 50. At the August 2011 job fair in Harlinge n, Texas, Hum an Resources Managers from Bass Pro stores in three different states acknowledged Morris’s directive that applicants be hired based on their “physical ch aracteristics,” a coded refere nce to discrim ination against minorities on the basis of race, national origin, and other impermissible factors.
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51. To assure that store-level hiring is cons istent with the ir discriminatory Profile, Defendants’ management has used a num ber of practices to prioritize the hiring of W hites and undermine minorities’ hiring prospects.
52. Defendants’ human resources functions are highly centralized. Just two top corporate Human Resources Man agers have exceeding ly broad authority over all sto res. Michael Rowland has b een the top corporate Hu man Resources Manager since 1983 and is the Vice President of Human Resources. He was hire d when Defendants had just one retail store. He had no hum an resources experience in the re tail context at hire. Rowland is second in command at BPOW.
53. Rowland has stated that he hired onl y one Black em ployee in the corporate Human Resources department, a clerk, during his first 26 years of employment with Defendants.
54. In 1999, Michael Rowland hired Brent Day as Director of Hu man Resources for retail stores.
55. Shortly after hire, Day assumed a broad range of authority over the hiring of store managers. The few Regional Human Resources Managers are recruited by Rowla nd and Day and report directly to Day.
56. At present, there are ju st two Regiona l Human Resources Managers for all of Defendants’ stores, one of wh om was prom oted from a Store Hum an Resources Manager position.
57. Corporate Human Resources trains n ew managers and selects experienced W hite field managers to train and provide support for them.
58. Defendants heavily rely on loyal White stor e managers to staff job fairs at new stores, sometimes located far from the sto res where those m anagers work. Brent Day and hi s few Regional Hum an Resources Managers play a la rge role in sele cting the job fair re cruiting
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staff. Black and Hispanic employees are rarely utilized to staff job fairs. Minority job applicants have stated that they have rare ly observed or been interviewed by m inority managers at the job fairs.
59. To discourage Black applicants from applying, Brent Day, who selects job fair sites nationwide, or delegates th at to subordinates and certain store managers, instructed or otherwise encouraged Store Human Resources Managers to hold job fairs in locations designed to draw White applicants and deter minority applicants.
60. Defendants have excluded minority applicants by informing employment agencies that they are not interested in recruiting affirmative action candidates.
61. Defendants require some applicants to complete a pre-employment survey, called the Orion test. W hen a field m anager commented that Black applicants had done poorly on the Orion test, a high-ranking store m anager expressed enthusiasm at this opportunity to elim inate Black candidates.
62. Scores of minority applicants who were not hired by Defendants (“unsuccessful minority applicants”) insist that, although D efendants’ staff assured them they would be contacted about the status of their applications, Defendants never contacted them (see, generally, paragraphs 177 to361 and paragraphs 410 to 429. Ma ny of these m inority applicants state that, not having heard from Defendants, they contacted the Defendants to inquire about the status of their applications, but they were advised that the position or positions had been filled.
63. Day plays a m ajor role in sourcing, interviewing, and hiring Store Hum an Resources Managers on a nationwide basis and in approving the promotion of employees whom he trusts or expects to follow the discriminatory Profile to store management positions, including that of Store Human Resources Manager.
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64. Day has a dmitted that outdoor experience is no t essential to any job a t Defendants’ stores.
65. Outdoor experience, such as in campi ng, fishing, hunting and shooting, is — for almost all jobs at Bass Pro — not a job requirement.
66. Little formal education is r equired for almost all the jobs a t Defendants’ retail stores.
67. An applicant’s having r etail experience is a positiv e factor for hiring purposes, according to Brent Day.
68. Defendants’ ineffective system of responding to discrimination complaints shows malice, reckless disregard, or indifference to compliance with Title VII.
69. As discussed in m ore detail in para graphs 431 to 506 below, Store Hum an Resources Managers and other st ore managers who have challenge d Defendants’ orders not to hire qualified Black or Hispanic ap plicants have been term inated, forced to quit, or otherwise subjected to retaliation. Such managers have directly informed Brent Day of evidence regarding discriminatory hiring practices, but Day has not e ffectively or m eaningfully investigated their contentions.
70. Rowland and Day have acknowledged that neither they, nor Defendants, have ever considered or initiated any program to recruit qualified minority job applicants for any jobs at Defendants’ stores.
71. Defendants have not tasked anyone in Hum an Resources to engage in ef forts to recruit qualified minority job candidates.
72. Defendants have not utilized diversit y job f airs to r ecruit qualified minority candidates.
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73. Defendants are required by federal law to submit annual reports, called EEO-1’s, describing the companies’ work force demographics.
74. For many years, as Vice Presid ent of Human Resources, Michael Rowland has certified, under penalty of federal law, the accuracy of Defendants’ annual EEO-1 reports that set forth, by race and national origin, the num ber of employees on a stor e-by-store basis, for corporate headquarters and in the aggregate.
75. Up until the time that the Comm issioner Charge which gave rise to th is lawsuit was issued in 2007, Michael Rowland had never reviewed any of Defe ndants’ EEO-1’s to determine if Defendants’ dem ographics suggested discrimination against, or underutilization of minorities overall or in any specific job category.
76. As discussed with more particularity in paragraphs 126 to 176 and paragraphs 362 to 409, Defendants’ EE O-1’s have consistently shown clear underutilization, and strikingly low representation, of minorities in Defendants’ workforce. Defendant s’ lack of concern or action, despite the obvious underut ilization of m inorities revealed in their EEO-1’s, is indicative of Defendants’ standard operating procedure of hiring discrimination, their lack of good faith efforts to comply with Title VII, and their malice or reckless indifference for rights protected by Title VII.
77. Up until th e time that the Comm issioner Charge was is sued in 2007, Michael Rowland had never instructed anyone in the Human Resources departm ent or any other department to determ ine if Defendants’ E EO-1 reports suggested that Defendants were employing too few minorities overall or in any specific job category.
Across The Country, Defendants’ Hiring Officials Give Hiring Preference to Whites The following are examples of Defendants’ discriminatory hiring practices at sp ecific
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stores. These examples are illustrative and are not intended to be exhaustive. 78. Most Bass Pro retail stores are open to the public at least eighty hours a week.
Each retail store is m anaged by a Store Genera l Manager, who supervises the other store managers as well as the m anagers for Tracker M arine, the boat and m arine department, and the managers of restaurants owned by Defendants that are nearby or within the s tore. W ith rare exception, all salaried e mployees who supe rvise store departm ents are characterized as “managers,” not “supervisors.” Defendants’ st ores typically employ over a hundred em ployees, and sometimes as many as two hundred or more.
79. Defendants’ standard operating proce dure of discriminating against qualified Black and Hispanic ap plicants in hiring is carried out at the store level by m anagers and hiring officials who encourage staff to m istreat and otherwise discourage m inority job applicants, mistreat minority customers, and, at times, even the few minorities employed by Defendants.
Louisiana 80. The Bossier City sto re aggressively enforced the centralized directive to hire b y the “Profile,” per the stated guid ance of ow ner Morris, by discrim inating against Black and Hispanic applicants and favoring Whites. 81. Ed Billingsley, the Store General Manager in Bossier City, Louisiana, from about 2004 to 2008, instructed a customer service manager not to hire any more Black employees. 82. Billingsley admitted that he was f ollowing Morris’s hiring direc tive of favoring White applicants over minority applicants, in defending his discriminatory practices. 83. In a m eeting with Gen eral Manager Billingsley and Assistant General Manager Richard Wisher, the B ossier City store’s cu stomer service m anager recommended hiring a female applicant in the customer service department. Wisher objected because the applicant was Black, arguing that the store’s “Bubba Clientel e” — a stereotyped term reflecting W isher’s
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assumption that White customers would be prejudiced against Black employees — would have a difficult time accepting a “Black wom an” refusing them credit for retu rned items. Billings ley did not contradict or countermand Wisher’s directive at the meeting.
84. A former Bossier C ity Store Hum an Resources Manager attested that the store was run like a “Good Old Boy” system favoring White males, that personnel docum ents were routinely doctored to help those favored by management, and that White males were given better treatment than their non-W hite counterparts regarding pay, seve rance, leave, w orkload, and transfers.
Iowa 85. A restaurant m anager in Bass Pro’s Conc ord, Iowa, store stat ed that the hiring managers issued a directive that all hiring had to be done by th e Profile. After the m anager asked what the Profile m eant, the regional m anager explained by poin ting out that a Black employee did not fit the Profile, whereas a White employee did. 86. The restaurant m anager complained to Brent Day about the discrim ination resulting from use of the Profile, as Day had been involved in hiring the manager. The restaurant manager who complained was fired shortly after expressing his opposition to the Profile to Day.
Texas 87. In 2005, Dianne Raydon, the Store General Manager of Defendants’ store in Katy, Texas, told the Store Hum an Resources Manager that “it was getting a little dark in he re. You need to hire some White people.” 88. Dianne Raydon called Black employees “lazy.” 89. Raydon referred to Hispanic custom ers, employees (and Hispanics in general) as “wetback,” “vato” (Spanish slang for “dude”), “spic,” “Pedro,” and “Mexican,” and called Blacks “pimps” and “Monkeys.”
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90. Raydon directly addressed m inorities with racial slur s. R aydon did not want Blacks hired, she said, because “if we get too many of those, they’ll steal us blind.”
91. Between August 2008 and July 2009, a Lead, Danny Wentz, im posed hiring barriers on Black applicants, but not W hite applicants, by requiring only Black job seekers to take and pass specialized exams that were meant to be training exams for current employees.
92. The front end, hunting, and fishing and marine managers Danny W entz, Mark Davison, and W es Blanton disparaged m inority applicants, by admonishing that “if they [minorities] want to dres s like that, or act like that, they ne ed to go to W al-mart or Academy.” Wentz also made comments such as “this ain’t the street or the ghetto.”
Mississippi 93. To discourage Blacks from applying for jobs, Brent Day permitted Pat Renegar, the Store General Manager, to lo cate a job fair site in Rich land, Mississippi, a predom inantly White area which is farther from integrated residential neighborhoods than Jackson’s m ore accessible sites. Defendants’ intent was to reduce the number of minority applicants. 94. A former Pearl, Mississippi, Store H uman Resources Manager attested that store and corporate management were “on a mission to just hire Whites.” 95. The Store Human Resources Manager asked why the Pearl job fair was being held in Richland, a remote location. Brent Day, and Renegar, Store Ge neral Manager, who organized the event, told the Store Hum an Resources Manager that they needed to deter “bad a pplicants” from applying. 96. When the Store Hum an Resources Manage r pressed Day about having so few Black employees when so many Blacks lived near the Pearl store itself, Day responded, “ We get by because they don’t apply [at the fair].”
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97. The Store Hum an Resources Manager obs erved that, although store m anagers would say that outdoor experience was a job requirem ent, many Black applicants were rejected despite having m ore outdoor experience than Whites who were hired. The Store Hum an Resources Manager attested that “We just kick [] out the Black a pplicants at a much higher rate than we do the White applicants who have less outdoor experience.”
98. At the Pearl job fair and othe r job fairs, Black applicants had to be very persistent to obtain an interview, let alone a job offer.
99. As is the case at m any other Bass Pro stores, the Pearl store usually did not advertise job vacancies or prom otional opportunities either in the m edia or by posting signs o r notices in the stores.
100. Defendants have often filled vacancies quickly with pre-selected White applicants so that the few Black em ployees learned abou t possible v acancies only after those jobs had already been filled.
101. Ambitious Black employees were fired arbitrarily and stigmatized with slurs, one being called a “cocky nigger” when he sought a promotion.
102. It was well known among the staf f that Pat Renegar, the Pearl S tore General Manager, did not want to hire Blacks.
103. Some of the few Black em ployees were subjected to racial harassm ent, such as being called, by both managers and co-workers, “ghetto,” “nigger,” “lazy,” and “boy” by W hite supervisors and White co-workers.
104. White managers at the Pearl store would often complain that th e store had too many Black employees, even though there were very few.
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North Carolina 105. Michael Chopp, the long te nured Store Hum an Resources Manager in the Charlotte, North Carolina, store, screened out a pplicants if their physical appearance did not fit the desirable “demographics,” a code for race. 106. On several occasions, Chopp ostensibly “lost” the job applications of m inorities. As a consequence, the Store Hum an Resources Manager provided the White Loss Prevention Manager with job applications from Whites only. 107. Tim Bloodworth, Operations Manager, and Chopp instructed the W hite Loss Prevention Manager to watch “them,” referring to Black shoppers. 108. Bloodworth and Ron Kinney, m erchandising manager, often used the term “nigger” and “dam ned niggers” when referring to Black custom ers in Defendants’ Concord, North Carolina, store. 109. The lone Black m anager’s store identific ation card was defaced with the word “nigger.” The Black manager told the top store managers about this and he de manded that an investigation, but Defe ndants took no action. This same Black manager said W hite employees frequently used racial epithets such as “n igger” in the lun ch room, and dire cted this epith et toward then-presidential candidate Barack Obama in particular.
Virginia 110. Dominique Terry applied at the Hampton, Virginia, store in 2009 (and he also applied at the Gurnee, Illinois s tore in 2010). While waiting in the Ham pton store for the opportunity to interview , a W hite Bass Pro employee approached him and advised him that “niggers aren’t allowed to work here.” Bass Pro did not hire Terry.
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Oklahoma 111. In 2005, B rian Goforth, the General Ma nager in Bass Pro’s Broken Arrow, Oklahoma, store, criticized a restaurant Assistant General Manager, Gerard Lac hance. Hi s remarks included asking sarcastically, “You got enough niggers hired yet?” 112. Regarding a Black fem ale employee whose skin condition lightened her complexion, Goforth chastised the restaurant manager by saying, “So, what, we are hiring W hite niggers, too?” 113. Goforth also criticized the Assis tant General Manager for hiring Hispanics, by accusing him of hiring the “Rio Grande Express,” a derogatory comment concerning Hispanics. 114. A few days after Lachance inform ed management about the discriminatory hiring practices and comm ents, he was fired, based on the false contention that he was trying to undermine Goforth’s authority in order to get his job. When Lachance appealed his term ination to Brent Day, Day did nothing to investigate the retaliation claim, and Lachance’s term ination was sustained.
Indiana 115. Managers in Defendants’ Clarksville, Indiana, store did not disguise their hostility toward Black and Hispanic applicants and customers. 116. The store G eneral Manager, Mike B enningfield, the Operations Manager, Mike Caudill, and the Store Hum an Resources Man ager, Mary Vaughn, disparaged His panics who lived in housing units near th e Clarksville store by calling th eir neighborhood “Little Mexico” and a “whorehouse.” They insisted Mexicans we re “dangerous” and whenever som ething was missing in the store, they would rem ark that “the Mexicans stole it,” despite no evidence of who was responsible for the loss.
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117. Allen Bramer, Lead Lo ss Prevention agent, stated that “Niggers steal and do not make good employees,” and did what he could to assure that minorities would not be hired.
118. Several times in late 2008, Bramer was seen discarding employment applications just after declaring that the applicant’s name “sounded like a ‘nigger’ name.”
119. Of Hispanics, Bram er said “they shoul d be shot at the border by the border patrol.”
120. Bramer tried to ban Black and Hispanic shoppers by harassing them. Without any factual basis, he follow ed them around the store. Applying the Profile to the sales floor, he claimed minorities “didn’t fit the profile of what we want in the store, hunters and fisherm en. They look like they are from the projects across the street.”
Alabama 121. Before holding a job fair for their L eeds, Alabama, store around October 2008, Defendants had preselected m any employees, incl uding White loss prevention associates who had worked in a Bass Pro store fo r a contracted private security firm before the Leeds store opened. Though that private security firm e mployed qualified Black agents who were m ore experienced than their White counterparts, Defe ndants chose to recruit only the White agents, and later promoted a White loss prevention agen t who was less expe rienced than the two Black loss prevention staffers. 122. Despite the fact that many minority applicants applied and that the store was in an area with large Black and Hispanic populations, Defendants hired very few Blacks or Hispanics, and appointed younger, less experienced W hites to managerial and lead positions. More experienced minority applicants were either not hired or were hired into pos itions below their level of experience and competence.
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123. In Defendants’ Spanish Fort, Alabama store, in late 2010, a White Lead employee accused a recently hired W hite subordinate of calling two Black PACE e mployees “worthless niggers.” “PACE” is a term used by Defendant s to refer to em ployees who are availab le as needed to work, such as for special sales ev ents, holidays, and vacation periods. Without any documentation and without conducting any witne ss interviews, the Store Hum an Resources Manager baselessly concluded that there was merely a “pe rsonality conflict” between the lead employee and the newly hired worker. The St ore Human Resources Ma nager disregarded the allegation of the use of racial slu rs. Thereafter, one of the targ ets of the slu r accused another White co-worker of calling her a “nigger,” and, again, without interviewing any witnesses, the Store Human Resources Manager disregarded the complaint because the accused W hite worker denied making the slurs.
124. The Human Resources Manager in Defendant s’ Spanish Fort store, alarmed that more than a few Blacks had been h ired, instructed the other departm ent managers, “You can’t hire all Blacks.”
Georgia 125. Despite being located near a large Black population, and having a sizeable percentage of Black applicants, Defendants’ Savannah, Georgia, store has had only a sm all number of Black employees. Nearby comparable stores, such as Dillard’s, Home Depot, Target, and Wal-Mart (some of which are in the same mall as Bass Pro), have had a higher percentage of Black workers.
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REPORTS PREPARED BY DEFENDANTS CONTAINING THE RACIAL COMPOSITION OF THEIR WORKFORCE SHOW A PLAUSIBLE CLAIM OF HIRING DISCRIMINATION AGAINST BLACKS DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE BLACK EMPLOYEES 126. During EEOC’s administrative investigation, Defendants produced hiring data for 24 of their retail stores. 127. According to the hiring data for 24 of De fendants’ retail stores that Defendants produced to EEOC during EEOC’s adm inistrative investigation, out of 14,374 em ployees hired during the relevant tim e period, only 995 (6.9%) of the hires were Black. The tim e periods for the hiring data varied depending on the store. F or eight of the stores, the data was f rom January 2005 through May 2007. For one of the stores, the data was from January 2005 through March 2009. For the other 15 stores , the data was from January 2005 through July 2009. (Unless otherwise stated, general refere nce to “employees” encompasses total employment and includes managerial and non-managerial employees.) 128. According to Defendants, “For the tim e period from 2005 to the present [April 2012], Bass Pro has had over 60,000 successful applicants.” 129. The Census Bureau produces a Census 2000 Special EEO file for those Federal agencies responsible for m onitoring employment practices and enforcing civil rights laws in the workforce, and for all em ployers, so they can measure their compliance with the laws. The Census 2000 Special E EO Tabulation serves as the primary external benchmark for conducting comparisons between the racial, ethnic, and sex composition of each employer's workforce to its available labor market. 130. According to the hiring data for 24 of De fendants’ retail stores that Defendants produced to EEOC during EEOC’s administrative investigation, 23 (95.8 %) of the 24 stores hired a lower percentage of Black em ployees compared to the r epresentation rate of Black
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employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Bossier City, Louisiana, store, where out of 255 em ployees hired from January 2005 through Ma y 2007, only 26 (10.2%) were Black, compared to a representation rate of 26.7% Black employees in the county. b. Defendants’ Broken Arrow, Oklahom a, store, where out of 1,220 employees hired from January 2005 through July 2009, only 25 (2%) were Black, compared to a representation rate of 7.8% Black employees in the county. c. Defendants’ Cincinnati, Ohio, store, where out of 285 e mployees hired from January 2005 through May 2007, only 11 (3.9%) were Black, compared to a representation rate of 13.3% Black employees in the county. d. Defendants’ Clarksville, Indiana, store, where out of 1,395 em ployees hired from January 2005 through July 2009, only 23 (1.6%) were Black, compared to a representation rate of 5.5% Black employees in the county. e. Defendants’ Dania, Florida, store, where out of 1,251 e mployees hired from January 2005 through July 2009, only 150 (12%) were Black, compared to a representation rate of 18.5% Black employees in the county. f. Defendants’ Destin, Florida, store, where out of 430 employees hired from January 2005 through July 2009, only 3 (.7%) were Black, com pared to a representation rate of 7.6% Black employees in the county. g. Defendants’ Duluth, Georgia, store, where out of 640 em ployees hired from January 2005 through July 2009, only 37 (5.8%) were Black, compared to a representation rate of 15.7% Black employees in the county.
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h. Defendants’ Garland, Texas, store, where out of 216 e mployees hired from January 2005 through May 2007, only 7 (3.2%) were Black, com pared to a representation rate of 14.7% Black employees in the county. i. Defendants’ Grapevine, Texas, stor e, where out of 285 e mployees hired from January 2005 through May 2007, only 2 (.7%) were Black, compared to a representation rate of 10.1% Black employees in the county. j. Defendants’ Hampton, Virginia, store, where out of 786 e mployees hired from January 2005 through July 2009, only 136 (17.3%) were Black, compared to a representation rate of 37.2 % Black employees in the county. k. Defendants’ Hanover, Maryland, store, where out of 101employees hired from January 2005 through May 2007, only 4 (4%) were B lack, compared to a representation rate of 14.6% Black employees in the county. l. Defendants’ Katy, Texas, store, wh ere out of 306 em ployees hired from January 2005 through May 2007, only 8 ( 2.6%) were Black, com pared to a representation rate of 15% Black employees in the county. m. Defendants’ Las Vegas, Nevada, store, where out of 867 em ployees hired from January 2005 through July 2009, only 30 (3.5%) were Black, compared to a representation rate of 7.4% Black employees in the county. n. Defendants’ Macon, Georgia, store, where out of 250 em ployees hired from January 2005 through May 2007, only 48 (19.2%) were Black, compared to a representation rate of 33.2% Black employees in the county. o. Defendants’ Memphis, Tennessee, st ore, where out of 428 em ployees hired from January 2005 through July 2009, only 35 (8.2%) were Black, compared to a representation rate of 36.4% Black employees in the county.
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p. Defendants’ Miami, Florida, store, where out of 367 employees hired from January 2005 through July 2009, only 11 (3%) were Black, com pared to a representation rate of 15.2% Black employees in the county. q. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 783 employees hired from January 2005 through July 2009, only 83 (10.6%) were Black, compared to a representation rate of 15.6% Black employees in the county. r. Defendants’ Nashville, Tennessee, store, wher e out of 839 em ployees hired from January 2005 through July 2009, only 51 (6.1%) were Black, compared to a representation rate of 15.7% Black employees in the county. s. Defendants’ Oklahoma City, Okla homa, store, where out of 761 employees hired from January 2005 through July 2009, only 33 (4.3%) were Black, compared to a representation rate of 9.8% Black employees in the county. t. Defendants’ Orlando, Florida, store, where out of 946 e mployees hired from January 2005 through July 2009, only 53 (5.6%) were Black, compared to a representation rate of 12.1% Black employees in the county. u. Defendants’ Saint Charles, Missouri, store, where out of 643 em ployees hired from January 2005 through July 2009, only 15 (2.3%) were Black, compared to a representation rate of 4.5% Black employees in the county. v. Defendants’ San Antonio, Texas, stor e, where out of 273 e mployees hired from January 2005 through May 2007, only 4 (1.5%) were Black, com pared to a representation rate of 6% Black employees in the county. w. Defendants’ Savannah, Georgia, store, where out of 538 employees hired from January 2005 through March 2009, only 101 (18.8%) were Black, compared to a representation rate of 30.1% Black employees in the county.
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131. Comparing the number of Black employees hired (as specified in the hiring data for 24 of Defendants’ retail stores that Defendants produced to E EOC during EEOC’s administrative investigation) to the representation ra te of Black em ployees in the county in which each store is located (as p rovided for in the Census 2000 Special EEO file) in dicates that Defendants had a net shortfall of 1,097 Black employees.
Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2007 132. According to Defendants’ 2007 E EO-1 reports, out of a total em ployment of 8,186 employees in 43 retail stores, only 365 (4.5%) employees were Black. 133. According to Defendants’ 2007 EE O-1 reports, 41 (95.3%) of Defenda nts’ 43 retail stores had a lower percentage of Black employees compared to the representation rate of Black in the county in which the store is loca ted, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Auburn, New York, store, where out of 153 em ployees, not one was Black, com pared to a representati on rate of 1% Black e mployees in the county. b. Defendants’ Auburn Hills, Michigan, store, where out of 153 em ployees, only 3 (2%) were Black, com pared to a representation rate of 11.9% Black employees in the county. c. Defendants’ Bolingbrook, Illinois, st ore, where out of 195 em ployees, only 9 (4.6%) were Black, com pared to a representation rate of 8.7% Black employees in the county.
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d. Defendants’ Bossier City, Louisiana, store, where out of 195 em ployees, only 15 (7.7%) were Black, com pared to a representation rate of 26.7% Black employees in the county. e. Defendants’ Branson, Missouri, stor e, where out of 109 em ployees, not one was Black, com pared to a repres entation rate of .2% Black em ployees in the county. f. Defendants’ Broken Arrow, Oklahom a, store, where out of 177 employees, only 1 (.6%) was Black, com pared to a representation rate of 7.8% Black employees in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 229 employees, only 6 (2.6%) were Black, compared to a repres entation rate of 13.3% Black employees in the county. h. Defendants’ Clarksville, Indiana, store, where out of 272 e mployees, only 3 (1.1%) were Black, compared to a repr esentation rate of 5.5% Black employees in the county. i. Defendants’ Columbia, Missouri, store, where out of 125 employees, not one was Black, compared to a representation rate of 6.4% Black employees in the county. j. Defendants’ Concord, North Carolina, store, where out of 242 e mployees, only 11 (4.5%) were Black, com pared to a representation rate of 12.4% Black employees in the county. k. Defendants’ Council Bluffs, Iowa, stor e, where out of 177 employees, not one was Black, compared to a representation rate of 1.6% Black employees in the county.
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l. Defendants’ Dania, Florida, store, where out of 255 em ployees, only 12 (4.7%) were Black, compared to a repres entation rate of 18.5% Black employees in the county. m. Defendants’ Denver, Colorado, store, where out of 241 e mployees, only seven (2.9%) were Black, com pared to a representation rate of 6.4% Black employees in the county. n. Defendants’ Destin, Florida, store, where out of 108 e mployees, only one (.9%) was Black, compared to a representation rate of 7.6% Black employees in the county. o. Defendants’ Duluth Georgia, store, where out of 208 employees, only seven (3.4%) were Black, com pared to a representation rate of 15.7% Black employees in the county. p. Defendants’ Ft. Myers, Fl orida, store, where ou t of 190 em ployees, only five (2.6%) were Black, com pared to a representation rate of 5.9% Black employees in the county. q. Defendants’ Garland, Texas, store, where out of 139 e mployees, only one (.7%) was Black, compared to a representation rate of 14.7% Black employees in the county. r. Defendants’ Grapevine, Texas, stor e, where out of 300 employees, only seven (2.3%) were Black, com pared to a representation rate of 10.1% Black employees in the county. s. Defendants’ Gurnee, Illinois, store, where out of 211 employees, only nine (4.3%) were Black, compared to a represen tation rate of 6% Black employees in the county.
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t. Defendants’ Hampton, Virginia, store, where out of 164 employees, only 23 (14%) were Black, com pared to a representation rate of 37.2% Black employees in the county. u. Defendants’ Hanover, Maryland, store, where out of 172 employees, only 7 (4.1%) were Black, com pared to a representation rate of 14.6% Black employees in the county. v. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 e mployees, only 11 (4.6%) were Black, com pared to a representation ra te of 8.4% Black employees in the county. w. Defendants’ Islamorada, Florida, stor e, where out of 63 employees, only three (4.8%) were Black, com pared to a representation rate of 5.3% Black employees in the county. x. Defendants’ Katy, Texas, store, wh ere out of 143 em ployees, only three (2.1%) were Black, compared to a representation rate of 15% Black employees in the county. y. Defendants’ Las Vegas, Nevada, stor e, where out of 210 e mployees, only five (2.4%) were Black, com pared to a representation rate of 7.4% Black employees in the county. z. Defendants’ Macon, Georgia, store, where out of 156 e mployees, only thirty-four (21.8%) were Black, compared to a representation rate of 33.2% Black employees in the county. aa. Defendants’ Memphis, Tennessee, st ore, where out of 143 e mployees, only seven (4.9%) were Black, com pared to a representation rate of 36.4% Black employees in the county.
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bb. Defendants’ Mesa, Arizona, store, where out of 187 em ployees, only one (.5%) was Black, compared to a representa tion rate of 3.2% Black employees in the county. cc. Defendants’ Miami, Florida, store, where out of 220 em ployees, only ten (4.5%) were Black, compared to a repres entation rate of 15.2% Black employees in the county. dd. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 151 employees, only thirteen (8.6%) were Black, compared to a representation rate of 15.6% Black employees in the county. ee. Defendants’ Nashville, Tennessee, st ore, where out of 200 em ployees, only six (3%) were Black, com pared to a representation rate of 15.7% Black employees in the county. ff. Defendants’ Oklahoma City, Okla homa, store, where out of 155 employees, only four (2.6%) were Black, co mpared to a represen tation rate of 9.8% Black employees in the county. gg. Defendants’ Olathe, Kansas, store, where out of 174 employees, only three (1.7%) were Black, compared to a representation rate of 5.3% Black employees in the county. hh. Defendants’ Orlando, Florida, stor e, where out of 277 employees, only fifteen (5.4%) were Black, com pared to a representation ra te of 12.1% Black employees in the county. ii. Defendants’ Pearl, Mississippi, stor e, where out of 164 em ployees, only fourteen (18.5%) were Black, compared to a represen tation rate of 26.8% Black employees in the county.
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jj. Defendants’ Portage, Indiana, stor e, where out of 200 e mployees, only four (2%) were Black , compared to a representation rate of 3.7 % Black employees in the county. kk. Defendants’ Prattville, Alabama, store, where out of 193 employees, only 17 (8.8%) were Black, com pared to a representation rate of 14.2% Black employees in the county. ll. Defendants’ Rancho Cucam onga, California, store, where out of 305 employees, only 16 (5.2%) were Black, compared to a representation rate of 6.8% Black employees in the county. mm. Defendants’ Saint Charles, Missouri, store, where out of 224 em ployees, only nine (4%) were Black, compared to a representation ra te of 4.5% Black employees in the county. nn. Defendants’ San Antonio, Texas, store, where out of 197 employees, only one (.5%) was Black, compared to a representation rate of 6% Black employees in the county. oo. Defendants’ Savannah, Georgia, store, where out of 147 employees, only 21 (14.3%) were Black, com pared to a representation rate of 30.1% Black employees in the county. 134. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2007 E EO-1 reports for 43 retail st ores) to the represen tation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 589 Black employees in 2007.
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Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2008 135. According to Defendants’ 2008 E EO-1 reports, out of a total em ployment of 8,410 employees in 49 retail stores, only 379 (4.5%) employees were Black. 136. According to Defendants’ 2008 EE O-1 reports, 47 (95.9%) of Defenda nts’ 49 retail stores had a lower percentage of Black employees compared to the representation rate of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Ashland, Virginia, store, where out of 171 e mployees, only 13 (7.6%) were Black, com pared to a representation rate of 16.2% Black employees in the county. b. Defendants’ Auburn, New York, store, where out of 135 em ployees, not one was Black, com pared to a representati on rate of 1% Black e mployees in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 148 em ployees, only 2 (1.4%) were Black, com pared to a representation rate of 11.9% Black employees in the county. d. Defendants’ Bolingbrook, Illinois, st ore, where out of 177 em ployees, only 10 (5.6%) were Black, com pared to a representation ra te of 8.7% Black employees in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 171 em ployees, only 14 (8.2%) were Black, com pared to a representation rate of 26.7% Black employees in the county.
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f. Defendants’ Branson, Missouri, stor e, where out of 101 em ployees, not one was Black, com pared to a repres entation rate of .2% Black em ployees in the county. g. Defendants’ Broken Arrow, Oklahom a, store, where out of 212 employees, only 2 (.9%) were Black, com pared to a representation rate of 7.8% Black employees in the county. h. Defendants’ Cincinnati, Ohio, stor e, where out of 222 employees, only seven (3.2%) were Black, com pared to a representation rate of 13.3% Black employees in the county. i. Defendants’ Clarksville, Indiana, store, where out of 223 e mployees, only 2 (.09%) were Black, compared to a repr esentation rate of 5.5% Black employees in the county. j. Defendants’ Columbia, Missouri, stor e, where out of 98 employees, not one was Black, compared to a representation rate of 6.4% Black employees in the county. k. Defendants’ Concord, North Carolina, store, where out of 196 e mployees, only nine (4.6%) were Black, compared to a representation rate of 12.4% Black employees in the county. l. Defendants’ Council Bluffs, Iowa, st ore, where out of 165 em ployees, only one (.6%) was B lack, compared to a representation rate of 1.6% Black employees in the county. m. Defendants’ Dania, Florida, store, where out of 229 em ployees, only 14 (6.1%) were Black, compared to a repres entation rate of 18.5% Black employees in the county.
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n. Defendants’ Denham Springs, Louisi ana, store, where out of 166 employees, only 4 (2.4%) were Black, com pared to a representation rate of 9.5% Black employees in the county. o. Defendants’ Denver, Colorado, store, where out of 198 e mployees, only 5 (2.5%) were Black, compared to a representation rate of 6.4% Black employees in the county. p. Defendants’ Destin, Florida, store, where out of 99 e mployees, only 1 (1%) were Black, compared to a representa tion rate of 7.6% Black employees in the county. q. Defendants’ Duluth, Georgia, store, where out of 193 e mployees, only six (3.1%) were Black, compared to a repres entation rate of 15.7% Black employees in the county. r. Defendants’ Foxborough, Massachusetts , store, where out of 207 employees, only 3 (1.4%) were Black, com pared to a representation rate of 3.7% Black employees in the county. s. Defendants’ Ft. Myers, Florida, store, where out of 172 e mployees, only 2 (1.2%) were Black, compared to a representation rate of 5.9% Black employees in the county. t. Defendants’ Garland, Texas, store, where out of 123 e mployees, only one (.8%) was Black, compared to a representation rate of 14.7% Black employees in the county. u. Defendants’ Grapevine, Texas, stor e, where out of 291 employees, only eight (2.7%) were Black, com pared to a representation ra te of 10.1% Black employees in the county.
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v. Defendants’ Gurnee, Illinois, stor e, where out of 175 e mployees, only seven (4%) were Black, compared to a representation rate of 6% Black employees in the county. w. Defendants’ Hampton, Virginia, store, where out of 165 employees, only 34 (20.6%) were Black, com pared to a representation rate of 37.2% Black employees in the county. x. Defendants’ Hanover, Maryland, store, where out of 221 employees, only 17 (7.7%) were Black, com pared to a representation rate of 14.6% Black employees in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 e mployees, only 12 (5.1%) were Black, com pared to a representation ra te of 8.4% Black employees in the county. z. Defendants’ Independence, Missouri, store, where out of 166 e mployees, only one (.6%) was Black, com pared to a representation rate of 13% Black employees in the county. aa. Defendants’ Islamorada, Florida, store, where out of 61 employees, only 3 (4.9%) were Black, compared to a representation rate of 5.3% Black employees in the county. bb. Defendants’ Katy, Texas, store, where out of 129 e mployees, only six (4.7%) were Black, compared to a representation rate of 15% Black em ployees in the county. cc. Defendants’ Kodak, Tennessee, store, where out of 195 employees, only one (.5%) was Black, compared to a repr esentation rate of .9% Black employees in the county.
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dd. Defendants’ Las Vegas, Nevada, store, where out of 195 e mployees, only 3 (1.5%) were Black, compared to a repr esentation rate of 7.4% Black employees in the county. ee. Defendants’ Macon, Georgia, store, where out of 158 e mployees, only 21 (13.3%) were Black, compared to a representation rate of 33.2% Black employees in the county. ff. Defendants’ Memphis, Tennessee, st ore, where out of 125 e mployees, only ten (8%) were Black, com pared to a representation rate of 36.4% Black employees in the county. gg. Defendants’ Mesa, Arizona, store, where out of 154 e mployees, only 2 (1.3%) were Black, compared to a representation rate of 3.2% Black employees in the county. hh. Defendants’ Miami, Florida, store, where out of 119 e mployees, only one (.8%) was Black, compared to a representation rate of 15.2% Black employees in the county. ii. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 136 employees, only 13 (9.6%) were Black, com pared to a repres entation rate of 15.6% Black employees in the county. jj. Defendants’ Nashville, Tennessee, st ore, where out of 196 em ployees, only 5 (2.6%) were Black, com pared to a representation rate of 15.7% Black employees in the county. kk. Defendants’ Oklahoma City, Okla homa, store, where out of 130 employees, only 7 (5.4%) were Black, com pared to a representation rate of 9.8% Black employees in the county.
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ll. Defendants’ Olathe, Kansas, store, where out of 156 e mployees, only four (2.6%) were Black, compared to a representation rate of 5.3% Black employees in the county. mm. Defendants’ Orlando, Florida, store, where out of 224 e mployees, only 14 (6.3%) were Black, compared to a repres entation rate of 12.1% Black employees in the county. nn. Defendants’ Pearl, Mississippi, stor e, where out of 153 em ployees, only 12 (7.8%) were Black, com pared to a representation rate of 26.8% Black employees in the county. oo. Defendants’ Portage, Indiana, store, where out of 157 employees, only one (.6%) was Black, compared to a representa tion rate of 3.7% Black employees in the county. pp. Defendants’ Prattville, Alabama, store, where out of 187 employees, only nine (4.8%) were Black, com pared to a representation ra te of 14.2% Black employees in the county. qq. Defendants’ Rancho Cucam onga, California, store, where out of 260 employees, only 13 (5%) were Black, com pared to a representation rate of 6.8% Black employees in the county. rr. Defendants’ Rossford, Ohio, store, where out of 216 e mployees, only three (1.4%) were Black, com pared to a representation rate of 4.1% Black employees in the county. ss. Defendants’ San Antonio, Texas, store, where out of 179 employees, only one (.6%) was Black, compared to a representation rate of 6% Black employees in the county.
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tt. Defendants’ Savannah, Georgia, store, where out of 118 employees, only 24 (20.3%) were Black, com pared to a representation rate of 30.1% Black employees in the county. uu. Defendants’ Spanish Fort, Alabam a, store, where out of 197 e mployees, only 21 (10.7%) were Black, compared to a representation rate of 5.3% Black employees in the county. 137. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2008 E EO-1 reports for 49 retail st ores) to the represen tation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 586 Black employees in 2008.
Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2009 138. According to Defendants’ 2009 E EO-1 reports, out of a total em ployment of 8,561 employees in 52 retail stores, only 356 (4.2%) employees were Black. 139. According to Defendants’ 2009 EE O-1 reports, 48 (92.3%) of Defenda nts’ 52 retail stores had a lower percentage of Black employees compared to the representation rate of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, w here out of 208 em ployees, only one (.5%) was Black, compared to a representa tion rate of 2.9% Black employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 202 e mployees, only 15 (7.4%) were Black, com pared to a representation rate of 16.2% Black employees in the county.
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c. Defendants’ Auburn, New York, store, where out of 144 em ployees, not one was Black, com pared to a representati on rate of 1% Black e mployees in the county. d. Defendants’ Auburn Hills, Michigan, store, where out of 137 em ployees, only two (1.5%) were Black, com pared to a representation rate of 11.9% Black employees in the county. e. Defendants’ Bolingbrook, Illinois, st ore, where out of 168 em ployees, only six (3.6%) were Black, compared to a representation ra te of 8.7% Black employees in the county. f. Defendants’ Bossier City, Louisiana, store, where out of 166 em ployees, only 17 (10.2%) were Black, com pared to a representation rate of 26.7% Black employees in the county. g. Defendants’ Branson, Missouri, store, where out of 97 employees, not one was Black, com pared to a rep resentation rate of .2% Black em ployees in the county. h. Defendants’ Broken Arrow, Oklahom a, store, where out of 210 employees, only four (1.9%) were Black, co mpared to a represen tation rate of 7.8% Black employees in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 220 employees, only six (2.7%) were Black, compared to a repres entation rate of 13.3% Black employees in the county. j. Defendants’ Clarksville, Indiana, store, where out of 223 e mployees, only one (.4%) was Black, compared to a repr esentation rate of 5.5% Black employees in the county.
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k. Defendants’ Columbia, Missouri, stor e, where out of 74 employees, not one was Black, compared to a representation rate of 6.4% Black employees in the county. l. Defendants’ Concord, North Carolina, store, where out of 189 e mployees, only nine (4.8%) were Black, compared to a representation rate of 12.4% Black employees in the county. m. Defendants’ Council Bluffs, Iowa, stor e, where out of 172 employees, not one was Black, compared to a representation rate of 1.6% Black employees in the county. n. Defendants’ Dania, Florida, store, where out of 233 e mployees, only nine (3.9%) were Black, compared to a repres entation rate of 18.5% Black employees in the county. o. Defendants’ Denham Springs, Louisi ana, store, where out of 160 employees, only two (1.3%) were Black, com pared to a represen tation rate of 9.5% Black employees in the county. p. Defendants’ Denver, Colorado, store, where out of 216 e mployees, only eight (3.7%) were Black, com pared to a representation rate of 6.4% Black employees in the county. q. Defendants’ Destin, Florida, store, where out of 100 e mployees, only two (2%) were Black, compared to a representa tion rate of 7.6% Black employees in the county. r. Defendants’ Duluth, Georgia, stor e, where out of 182 e mployees, only four (2.2%) were Black, com pared to a representation ra te of 15.7% Black employees in the county.
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s. Defendants’ Foxborough, Massachusetts , store, where out of 188 employees, only one (.5%) was Black, com pared to a representation rate of 3.7% Black employees in the county. t. Defendants’ Ft. Myers, Fl orida, store, where ou t of 161 em ployees, only one (.6%) was Black, compared to a repr esentation rate of 5.9% Black employees in the county. u. Defendants’ Garland, Texas, store, where out of 115 em ployees, only two (1.7%) were Black, compared to a repres entation rate of 14.7% Black employees in the county. v. Defendants’ Grapevine, Texas, stor e, where out of 242 employees, only five (2.1%) were Black, com pared to a representation ra te of 10.1% Black employees in the county. w. Defendants’ Gurnee, Illinois, store, where out of 144 employees, only four (2.8%) were Black, compared to a represen tation rate of 6% Black employees in the county. x. Defendants’ Hampton, Virginia, store, where out of 145 employees, only 34 (23.4%) were Black, com pared to a representation rate of 37.2% Black employees in the county. y. Defendants’ Hanover, Maryland, store, where out of 214 employees, only nine (4.2%) were Black, com pared to a representation ra te of 14.6% Black employees in the county. z. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 e mployees, only seven (3.6%) were Black, compared to a representation rate of 8.4% Black employees in the county.
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aa. Defendants’ Independence, Missouri, store, where out of 149 e mployees, only one (.7%) was Black, com pared to a representation rate of 13% Black employees in the county. bb. Defendants’ Islamorada, Florida, stor e, where out of 55 employees, only two (3.6%) were Black, com pared to a representation rate of 5.3% Black employees in the county. cc. Defendants’ Katy, Texas, store, wh ere out of 125 em ployees, only eight (6.4%) were Black, compared to a representation rate of 15% Black employees in the county. dd. Defendants’ Las Vegas, Nevada, store, where out of 164 e mployees, only three (1.8%) were Black, com pared to a representation rate of 7.4% Black employees in the county. ee. Defendants’ Leeds, Alabam a, store, where out of 218 e mployees, only twelve (5.5%) were Black, com pared to a representation ra te of 26.9% Black employees in the county. ff. Defendants’ Macon, Georgia, store, where out of 137 e mployees, only 21 (15.3%) were Black, compared to a representation rate of 33.2% Black employees in the county. gg. Defendants’ Manteca, California, store, where out of 186 employees, only six (3.2%) were Black, com pared to a representation rate of 4.5% Black employees in the county. hh. Defendants’ Memphis, Tennessee, st ore, where out of 131 e mployees, only seven (5.3%) were Black, com pared to a representation rate of 36.4% Black employees in the county.
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ii. Defendants’ Miami, Florida, store, where out of 112 e mployees, only one (.9%) was Black, compared to a representation rate of 15.2% Black employees in the county. jj. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 131 employees, only nine (6.9%) were Black, co mpared to a represen tation rate of 15.6% Black employees in the county. kk. Defendants’ Nashville, Tennessee, st ore, where out of 181 em ployees, only one (.6%) was Black, com pared to a representation rate of 15.7% Black employees in the county. ll. Defendants’ Oklahoma City, Okla homa, store, where out of 146 employees, only four (2.7%) were Black, co mpared to a represen tation rate of 9.8% Black employees in the county. mm. Defendants’ Olathe, Kansas, store, where out of 128 employees, only three (2.3%) were Black, compared to a representation rate of 5.3% Black employees in the county. nn. Defendants’ Orlando, Florida, stor e, where out of 214 employees, only fourteen (6.5%) were B lack, compared to a representation rate of 12.1% Black employees in the county. oo. Defendants’ Pearl, Mississippi, stor e, where out of 159 em ployees, only twelve (7.5%) were Black, com pared to a representation ra te of 26.8% Black employees in the county. pp. Defendants’ Portage, Indiana, stor e, where out of 144 e mployees, only three (2.1%) were Black, com pared to a representation rate of 3.7% Black employees in the county.
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qq. Defendants’ Prattville, Alabama, store, where out of 148 employees, only seven (4.7%) were Black, com pared to a representation rate of 14.2% Black employees in the county rr. Defendants’ Rancho Cucam onga, California, store, where out of 260 employees, only 15 (5.8%) were Black, compared to a representation rate of 6.8% Black employees in the county. ss. Defendants’ Rossford, Ohio, store, where out of 167 e mployees, only one (.6%) was Black, compared to a representa tion rate of 4.1% Black employees in the county. tt. Defendants’ San Antonio, Texas, store, where out of 154 employees, only one (.6%) was Black, compared to a representation rate of 6% Black employees in the county. uu. Defendants’ Savannah, Georgia, store, where out of 117 employees, only 26 (22.2%) were Black, com pared to a representation rate of 30.1% Black employees in the county. vv. Defendants’ Spanish Fort, Alabam a, store, where out of 177 e mployees, only 14 (7.9%) were Black, com pared to a representation rate of 11.2% Black employees in the county. 140. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2009 E EO-1 reports for 52 retail st ores) to the represen tation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 634 Black employees in 2009.
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Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2010 141. According to Defendants’ 2010 E EO-1 reports, out of a total em ployment of 8,839 employees in 52 retail stores, only 381 (4.3%) employees were Black. 142. According to Defendants’ 2010 EE O-1 reports, 50 (96.2%) of Defenda nts’ 52 retail stores had a lower percentage of Black employees compared to the representation rate of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 189 em ployees, not one was Black, com pared to a representation rate of 2.9% Black employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 190 e mployees, only 19 (10%) were Black, com pared to a representation rate of 16.2% Black employees in the county. c. Defendants’ Auburn, New York, store, where out of 139 em ployees, not one was Black, com pared to a representati on rate of 1% Black e mployees in the county. d. Defendants’ Auburn Hills, Michigan, store, where out of 156 em ployees, only 2 (1.3%) were Black, com pared to a representation rate of 11.9% Black employees in the county. e. Defendants’ Bolingbrook, Illinois, st ore, where out of 170 em ployees, only 8 (4.7%) were Black, com pared to a representation rate of 8.7% Black employees in the county.
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f. Defendants’ Bossier City, Louisiana, store, where out of 173 em ployees, only 17 (9.8%) were Black, com pared to a representation rate of 26.7% Black employees in the county. g. Defendants’ Branson, Missouri, stor e, where out of 105 em ployees, not one was Black, com pared to a repres entation rate of .2% Black em ployees in the county. h. Defendants’ Broken Arrow, Oklahom a, store, where out of 215 employees, only three (1.4%) we re Black, compared to a represen tation rate of 7.8% Black employees in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 207 employees, only 7 (3.4%) were Black, compared to a repres entation rate of 13.3% Black employees in the county. j. Defendants’ Clarksville, Indiana, store, where out of 234 e mployees, only one (.4%) was Black, compared to a repr esentation rate of 5.5% Black employees in the county. k. Defendants’ Columbia, Missouri, store, where out of 98 employees, only two (2%) were Black, compared to a representation rate of 6.4% Black employees in the county. l. Defendants’ Concord, North Carolina, store, where out of 203 e mployees, only 10 (4.9%) were Black, com pared to a representation rate of 12.4% Black employees in the county. m. Defendants’ Council Bluffs, Iowa, stor e, where out of 190 employees, not one was Black, compared to a representation rate of 1.6% Black employees in the county.
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n. Defendants’ Dania, Florida, store, where out of 227 e mployees, only nine (4%) were Black, compared to a representation rate of 18.5% Black employees in the county. o. Defendants’ Denham Springs, Louisi ana, store, where out of 163 employees, only five (3.1%) were B lack, compared to a representation rate of 9.5 % Black employees in the county. p. Defendants’ Denver, Colorado, store, where out of 206 e mployees, only seven (3.4%) were Black, com pared to a representation rate of 6.4% Black employees in the county. q. Defendants’ Destin, Florida, store, where out of 106 e mployees, only two (1.9%) were Black, compared to a representation rate of 7.6% Black employees in the county. r. Defendants’ Duluth, Georgia, store, where out of 183 e mployees, only six (3.3%) were Black, compared to a repres entation rate of 15.7% Black employees in the county. s. Defendants’ Foxborough, Massachusetts , store, where out of 190 employees, only one (.5%) was Black, com pared to a representation rate of 3.7% Black employees in the county. t. Defendants’ Ft. Myers, Fl orida, store, where ou t of 157 em ployees, only two (1.3%) were Black, com pared to a representation rate of 5.9% Black employees in the county. u. Defendants’ Garland, T exas, store, where out of 134 e mployees, only three (2.2%) were Black, com pared to a representation ra te of 14.7% Black employees in the county.
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v. Defendants’ Grapevine, Texas, stor e, where out of 290 employees, only eight (2.8%) were Black, com pared to a representation ra te of 10.1% Black employees in the county. w. Defendants’ Gurnee, Illinois, stor e, where out of 159 e mployees, only three (1.9%) were Black, com pared to a representation rate of 6% Black employees in the county. x. Defendants’ Hampton, Virginia, store, where out of 155 employees, only 37 (23.9%) were Black, com pared to a representation rate of 37.2% Black employees in the county. y. Defendants’ Hanover, Maryland, store, where out of 225 employees, only 10 (4.4%) were Black, com pared to a representation rate of 14.6% Black employees in the county. z. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 e mployees, only ten (4.9%) were Black, compared to a representation rate of 8.4% Black employees in the county. aa. Defendants’ Independence, Missouri, store, where out of 153 e mployees, not one was Black, compared to a representation rate of 13% Black em ployees in the county. bb. Defendants’ Islamorada, Florida, stor e, where out of 57 employees, only one (1.8%) was Black, com pared to a representation rate of 5.3% Black employees in the county. cc. Defendants’ Katy, Texas, store, where out of 120 e mployees, only six (5%) were Black, compared to a represen tation rate of 15% Black employees in the county.
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dd. Defendants’ Las Vegas, Nevada, store, where out of 155 e mployees, only five (3.2%) were Black, com pared to a representation rate of 7.4% Black employees in the county. ee. Defendants’ Leeds, Alabama, store, where out of 182 e mployees, only 11 (6%) were Black, compared to a representation rate of 26.9% Black employees in the county. ff. Defendants’ Macon, Georgia, store, where out of 155 e mployees, only 31 (20%) were Black, compared to a repres entation rate of 33.2% Black employees in the county. gg. Defendants’ Manteca, California, store, where out of 225 employees, only 4 (1.8%) were Black, compared to a repr esentation rate of 4.5% Black employees in the county. hh. Defendants’ Memphis, Tennessee, st ore, where out of 136 e mployees, only 7 (5.1%) were Black, com pared to a representation rate of 36.4% Black employees in the county. ii. Defendants’ Mesa, Arizona, store, where out of 154 employees, only three (1.9%) were Black, compared to a representation rate of 3.2% Black employees in the county. jj. Defendants’ Miami, Florida, store, where out of 124 e mployees, only two (1.6%) were Black, compared to a repres entation rate of 15.2% Black employees in the county. kk. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 135 employees, only 13 (9.6%) were Black, com pared to a repres entation rate of 15.6% Black employees in the county.
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ll. Defendants’ Nashville, Tennessee, st ore, where out of 180 em ployees, only one (.6%) was Black, com pared to a representation rate of 15.7% Black employees in the county. mm. Defendants’ Oklahoma City, Okla homa, store, where out of 152 employees, only two (1.3%) were Black, com pared to a represen tation rate of 9.8% Black employees in the county. nn. Defendants’ Olathe, Kansas, store, where out of 134 employees, only three (2.2%) were Black, compared to a representation rate of 5.3% Black employees in the county. oo. Defendants’ Orlando, Florida, store, where out of 205 e mployees, only 14 (6.8%) were Black, compared to a repres entation rate of 12.1% Black employees in the county. pp. Defendants’ Pearl, Mississippi, stor e, where out of 149 em ployees, only nine (6%) were Black, com pared to a representation rate of 26.8% Black employees in the county. qq. Defendants’ Portage, Indiana, stor e, where out of 146 e mployees, only three (2.1%) were Black, com pared to a representation rate of 3.7% Black employees in the county. rr. Defendants’ Prattville, Alabama, store, where out of 130 employees, only seven (5.4%) were Black, com pared to a representation rate of 14.2% Black employees in the county. ss. Defendants’ Rancho Cucam onga, California, store, where out of 281 employees, only 14 (5%) were Black, com pared to a representation rate of 6.8% Black employees in the county.
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tt. Defendants’ Rossford, Ohio, store, where out of 167 e mployees, only two (1.2%) were Black, compared to a representation rate of 4.1% Black employees in the county. uu. Defendants’ Saint Charles, Missouri, store, where out of 190 em ployees, only eight (4.2%) were Black, compared to a representation rate of 4.5% Black employees in the county. vv. Defendants’ San Antonio, Texas, store, where out of 192 employees, only one (.5%) was Black, compared to a representation rate of 6% Black employees in the county. ww. Defendants’ Savannah, Georgia, store, where out of 113 employees, only 24 (21.2%) were Black, com pared to a representation rate of 30.1% Black employees in the county. xx. Defendants’ Spanish Fort, Alabam a, store, where out of 192 e mployees, only 14 (7.3%) were Black, com pared to a representation rate of 11.2% Black employees in the county. 143. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2010 E EO-1 reports for 52 retail st ores) to the represen tation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 629 Black employees in 2010.
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DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE BLACK MANAGERS Defendants’ Discriminatory Failure to Hire
Black Managers at Defendants’ Retail Stores in 2007 144. According to Defendants’ 2007 E EO-1 reports, out of a total em ployment of 8,186 employees in 43 retail stores, 606 (7.4%) employees were managers. 145. According to Defendants’ 2007 EEO-1 reports, out of 606 m anagers in Defendants’ 43 retail stores, only 14 (2.3%) were Black. 146. According to Defendants’ 2007 EE O-1 reports, 36 (83.7%) of Defenda nts’ 43 retail stores had a lowe r percentage of Black managers compared to the representation rate of Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Black, com pared to a representation rate of .6% Bl ack managers in the county. b. Defendants’ Auburn Hills, Michigan, store, where out of 13 managers, not one was Black, com pared to a representati on rate of 7.9% Black m anagers in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 15 managers, not one was Black, com pared to a representation rate of 5% Black m anagers in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 15 m anagers, not one was Black, com pared to a representati on rate of 12% Black m anagers in the county.
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e. Defendants’ Branson, Missouri, store, where out of ten m anagers, not one was Black, com pared to a representation rate of .2% Bl ack managers in the county. f. Defendants’ Broken Arrow, Oklahom a, store, where out of 15 m anagers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 14 m anagers, not one was Black, com pared to a representation rate of 7.5% Black m anagers in the county. h. Defendants’ Clarksville, Indiana, store, where out of 16 managers, not one was Black, com pared to a representation rate of 2.8% Black m anagers in the county. i. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Black, com pared to a representation rate of 4.9% Black m anagers in the county. j. Defendants’ Council Bluffs, Iowa, stor e, where out of 14 m anagers, not one was Black, com pared to a representati on rate of .4% Black m anagers in the county. k. Defendants’ Dania, Florida, store, where out of 15 m anagers, only one (6.7%) was Black, compared to a represen tation rate of 8.3% Black m anagers in the county. l. Defendants’ Denver, Colorado, store, where out of 17 m anagers, not one was Black, com pared to a representation rate of 4.6% Black m anagers in the county.
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m. Defendants’ Destin, Florida, store, where out of 10 managers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. n. Defendants’ Duluth, Georgia, store, where out of 16 m anagers, not one was Black, com pared to a representation rate of 10.3% Black m anagers in the county. o. Defendants’ Ft. Myers, Florida, stor e, where out of 14 managers, not one was Black, com pared to a representation rate of 1.3% Black m anagers in the county. p. Defendants’ Garland, T exas, store, where out of 14 m anagers, only one (7.1%) was Black, compared to a represen tation rate of 9.3% Black m anagers in the county. q. Defendants’ Grapevine, Texas, store, where out of 21 m anagers, not one was Black, com pared to a repres entation rate of 6% Black m anagers in the county. r. Defendants’ Hampton, Virginia, store, where out of 13 managers, only one (7.7%) was Black, com pared to a representation rate of 23% Black m anagers in the county. s. Defendants’ Hanover, Maryland, store, where out of 13 managers, not one was Black, com pared to a representation rate of 8.8% Black m anagers in the county. t. Defendants’ Harrisburg, Pennsylvania, store, w here out of 14 m anagers, not one was Black, compared to a represen tation rate of 5.8% Black m anagers in the county.
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u. Defendants’ Islamorada, Florida, store, where out of six managers, not one was Black, com pared to a representation rate of 1.9% Black m anagers in the county. v. Defendants’ Katy, Texas, store, wher e out of 13 m anagers, not one was Black, compared to a representation rate of 9.6% Black managers in the county. w. Defendants’ Kodak, Tennessee, store, where out of 14 m anagers, not one was Black, com pared to a repres entation rate of 1% Black m anagers in the county. x. Defendants’ Las Vegas, Nevada, store, where out of 13 m anagers, not one was Black, com pared to a representation rate of 5.1% Black m anagers in the county. y. Defendants’ Macon, Georgia, store, where out of 12 managers, only one (8.3%) was Black, compared to a representation rate of 20.5% Black m anagers in the county. z. Defendants’ Memphis, Tennessee, store, where out of 14 m anagers, only one (7.1%) was Black, com pared to a representation rate of 21.6% Black managers in the county. aa. Defendants’ Mesa, Arizona, store, wh ere out of 16 managers, not one was Black, compared to a representation rate of 2.5% Black managers in the county. bb. Defendants’ Miami, Florida, store, where out of 14 managers, not one was Black, compared to a representation rate of 8% Black managers in the county. cc. Defendants’ Nashville, Tennessee, st ore, where out of 14 m anagers, not one was Black, com pared to a representati on rate of 8.8% Black m anagers in the county.
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dd. Defendants’ Oklahoma City, Oklahoma, store, where out of 15 m anagers, not one was Black, compared to a represen tation rate of 6.1% Black m anagers in the county. ee. Defendants’ Orlando, F lorida, store, where out of 17 m anagers, not one was Black, com pared to a representation rate of 6.9% Black m anagers in the county. ff. Defendants’ Pearl, Mississippi, store, where out of 14 m anagers, only one (7.1%) was Black, compared to a representation rate of 10.5% Black m anagers in the county. gg. Defendants’ Portage, In diana, store, where out of 14 m anagers, not one was Black, com pared to a representation rate of 2.1% Black m anagers in the county. hh. Defendants’ Prattville, Alabama, store, where out of 16 m anagers, not one was Black, com pared to a representation rate of 4.2% Black m anagers in the county. ii. Defendants’ Rancho C ucamonga, California, store, wh ere out of 20 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. jj. Defendants’ San Antonio, Texas, store, where out of 16 managers, not one was Black, com pared to a representation rate of 5.5% Black m anagers in the county. 147. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2007 E EO-1 reports for 43 retail st ores) to the represen tation rate of Black
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managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 27 Black managers in 2007.
Defendants’ Discriminatory Failure to Hire Black Managers at Defendants’ Retail Stores in 2008 148. According to Defendants’ 2008 E EO-1 reports, out of a total em ployment of 8,410 employees in 49 retail stores, 630 (7.5%) employees were managers. 149. According to Defendants’ 2008 EEO-1 reports, out of 630 m anagers in Defendants’ 49 retail stores, only 17 (2.7%) were Black. 150. According to Defendants’ 2008 EE O-1 reports, 39 (79.6%) of Defenda nts’ 49 retail stores had a lowe r percentage of Black managers compared to the representation rate of Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Black, com pared to a representation rate of .6% Bl ack managers in the county. b. Defendants’ Auburn Hills, Michigan, store, where out of 13 managers, not one was Black, com pared to a representati on rate of 7.9% Black m anagers in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Black, com pared to a representation rate of 5% Black m anagers in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 12 m anagers, not one was Black, com pared to a representati on rate of 12% Black m anagers in the county.
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e. Defendants’ Branson, Missouri, store, where out of 9 m anagers, not one was Black, com pared to a repre sentation rate of .2% Bl ack managers in the county. f. Defendants’ Broken Arrow, Oklahom a, store, where out of 12 m anagers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 14 m anagers, not one was Black, com pared to a representation rate of 7.5% Black m anagers in the county. h. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Black, com pared to a representation rate of 4.9% Black m anagers in the county. i. Defendants’ Council Bluffs, Iowa, stor e, where out of 12 m anagers, not one was Black, com pared to a representa tion rate of .4% Black m anagers in the county. j. Defendants’ Dania, Florida, store, where out of 15 m anagers, only one (6.7%) was Black, compared to a represen tation rate of 8.3% Black m anagers in the county. k. Defendants’ Denham Springs, Louisiana, store, where out of 14 managers, not one was Black, compared to a represen tation rate of 3.7% Black m anagers in the county. l. Defendants’ Denver, Colorado, store, where out of 14 m anagers, not one was Black, com pared to a representation rate of 4.6% Black m anagers in the county.
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m. Defendants’ Destin, Florida, store, where out of 9 m anagers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. n. Defendants’ Duluth, Georgia, store, where out of 15 m anagers, not one was Black, com pared to a representation rate of 10.3% Black m anagers in the county. o. Defendants’ Ft. Myers, Florida, stor e, where out of 11 managers, not one was Black, com pared to a representation rate of 1.3% Black m anagers in the county. p. Defendants’ Garland, Texas, store, where out of 10 managers, not one was Black, compared to a representation rate of 9.3% Black managers in the county. q. Defendants’ Grapevine, Texas, store, where out of 19 m anagers, not one was Black, com pared to a repres entation rate of 6% Black m anagers in the county. r. Defendants’ Hanover, Maryland, store, where out of 14 managers, not one was Black, com pared to a representation rate of 8.8% Black m anagers in the county. s. Defendants’ Harrisburg, Pennsylvania, store, w here out of 12 m anagers, not one was Black, compared to a represen tation rate of 5.8% Black m anagers in the county. t. Defendants’ Independence, Missouri, store, where out of 14 managers, not one was Black, com pared to a representati on rate of 9.1% Black m anagers in the county.
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u. Defendants’ Islamorada, Florida, store, where out of 6 m anagers, not one was Black, com pared to a representation rate of 1.9% Black m anagers in the county. v. Defendants’ Katy, Texas, store, w here out of 11 m anagers, only one (9.1%) was Black, compared to a represen tation rate of 9.6% Black m anagers in the county. w. Defendants’ Kodak, Tennessee, store, where out of 15 m anagers, not one was Black, com pared to a repres entation rate of 1% Black m anagers in the county. x. Defendants’ Las Vegas, Nevada, store, where out of 14 m anagers, not one was Black, com pared to a representation rate of 5.1% Black m anagers in the county. y. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Black, com pared to a representation rate of 20.5% Black m anagers in the county. z. Defendants’ Memphis, Tennessee, store, where out of 13 m anagers, only one (7.7%) was Black, com pared to a representation rate of 21.6% Black managers in the county. aa. Defendants’ Mesa, Arizona, store, wh ere out of 14 managers, not one was Black, compared to a representation rate of 2.5% Black managers in the county. bb. Defendants’ Miami, Florida, store, where out of 12 managers, not one was Black, compared to a representation rate of 8% Black managers in the county.
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cc. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 13 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. dd. Defendants’ Nashville, Tennessee, st ore, where out of 15 m anagers, not one was Black, com pared to a representati on rate of 8.8% Black m anagers in the county. ee. Defendants’ Oklahoma City, Oklahoma, store, where out of 15 m anagers, not one was Black, compared to a represen tation rate of 6.1% Black m anagers in the county. ff. Defendants’ Orlando, F lorida, store, where out of 17 m anagers, not one was Black, com pared to a representation rate of 6.9% Black m anagers in the county. gg. Defendants’ Pearl, Mississippi, store, where out of 14 m anagers, only one (7.1%) was Black, compared to a representation rate of 10.5% Black m anagers in the county. hh. Defendants’ Portage, In diana, store, where out of 12 m anagers, not one was Black, com pared to a representation rate of 2.1% Black m anagers in the county. ii. Defendants’ Prattville, Alabama, store, where out of 14 m anagers, not one was Black, com pared to a representation rate of 4.2% Black m anagers in the county. jj. Defendants’ Rancho C ucamonga, California, store, wh ere out of 15 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county.
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kk. Defendants’ Rossford, Ohio, store, where out of 13 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. ll. Defendants’ San Antonio, Texas, store, where out of 15 managers, not one was Black, com pared to a representation rate of 5.5% Black m anagers in the county. mm. Defendants’ Savannah, Geor gia, store, where out of 13 managers, only one (7.7%) was Black, com pared to a representation rate of 14.9% Black managers in the county. 151. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2008 E EO-1 reports for 49 retail st ores) to the represen tation rate of Black managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 24 Black managers in 2008.
Defendants’ Discriminatory Failure to Hire Black Managers at Defendants’ Retail Stores in 2009 152. According to Defendants’ 2009 E EO-1 reports, out of a total em ployment of 8,561 employees in 52 retail stores, 588 (6.9%) employees were managers. 153. According to Defendants’ 2009 EEO-1 reports, out of 588 m anagers in Defendants’ 52 retail stores, only 11 (1.9%) were Black. 154. According to Defendants’ 2009 EE O-1 reports, 48 (92.3%) of Defenda nts’ 52 retail stores had a lowe r percentage of Black managers compared to the representation rate of Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 12 m anagers, not one was Black, compared to a representation rate of 1.3% Black managers in the county.
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b. Defendants’ Auburn, New York, store, where out of 11 managers, not one was Black, com pared to a representation rate of .6% Bl ack managers in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 11 managers, not one was Black, com pared to a representati on rate of 7.9% Black m anagers in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 10 managers, not one was Black, com pared to a representation rate of 5% Black m anagers in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 11 m anagers, not one was Black, com pared to a representati on rate of 12% Black m anagers in the county. f. Defendants’ Branson, Missouri, store, where out of 10 m anagers, not one was Black, com pared to a representation rate of .2% Bl ack managers in the county. g. Defendants’ Broken Arrow, Oklahom a, store, where out of 12 m anagers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county. h. Defendants’ Cincinnati, Ohio, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 7.5% Black m anagers in the county. i. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Black, com pared to a representation rate of 2.8% Black m anagers in the county.
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j. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Black, com pared to a representation rate of 4.9% Black m anagers in the county. k. Defendants’ Concord, North Carolina, store, where out of 12 m anagers, not one was Black, compared to a represen tation rate of 4.2% Black m anagers in the county. l. Defendants’ Council Bluffs, Iowa, stor e, where out of 12 m anagers, not one was Black, com pared to a representa tion rate of .4% Black m anagers in the county. m. Defendants’ Dania, Florida, store, where out of 13 m anagers, only one (7.7%) was Black, compared to a represen tation rate of 8.3% Black m anagers in the county. n. Defendants’ Denham Springs, Louisiana, store, where out of 11 managers, not one was Black, compared to a represen tation rate of 3.7% Black m anagers in the county. o. Defendants’ Denver, Colorado, store, where out of 13 m anagers, not one was Black, com pared to a representation rate of 4.6% Black m anagers in the county. p. Defendants’ Destin, Florida, store, where out of 9 m anagers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. q. Defendants’ Duluth, Georgia, store, where out of 12 m anagers, not one was Black, com pared to a representation rate of 10.3% Black m anagers in the county.
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r. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Black, compared to a represen tation rate of 2.2% Black m anagers in the county. s. Defendants’ Ft. Myers, Florida, stor e, where out of 12 managers, not one was Black, com pared to a representation rate of 1.3% Black m anagers in the county. t. Defendants’ Garland, Texas, store, where out of nine m anagers, not one was Black, com pared to a representation rate of 9.3% Black m anagers in the county. u. Defendants’ Grapevine, Texas, store, where out of 16 m anagers, not one was Black, com pared to a repres entation rate of 6% Black m anagers in the county. v. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Black, com pared to a representation rate of 4.1% Black m anagers in the county. w. Defendants’ Hampton, Virginia, stor e, where out of 11 m anagers, only two (19.2%) were Black, com pared to a representation rate of 23% Black managers in the county. x. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Black, com pared to a representation rate of 8.8% Black m anagers in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of nine m anagers, not one was Black, compared to a represen tation rate of 5.8% Black m anagers in the county.
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z. Defendants’ Independence, Missouri, store, where out of 12 m anagers, only one (8.3%) was Black, com pared to a representation rate of 9.1% Black managers in the county. aa. Defendants’ Islamorada, Florida, store, where out of six managers, not one was Black, com pared to a representation rate of 1.9% Black m anagers in the county. bb. Defendants’ Katy, Texas, store, wher e out of nine m anagers, not one was Black, compared to a representation rate of 9.6% Black managers in the county. cc. Defendants’ Kodak, Tennessee, store, where out of 12 m anagers, not one was Black, com pared to a repres entation rate of 1% Black m anagers in the county. dd. Defendants’ Las Vegas, Nevada, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 5.1% Black m anagers in the county. ee. Defendants’ Leeds, Alabam a, store, where out of 12 managers only one (8.3%) was Black, compared to a representation rate of 15.3% Black m anagers in the county. ff. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Black, com pared to a representation rate of 20.5% Black m anagers in the county. gg. Defendants’ Manteca, California, store, where out of 12 managers, not one was Black, com pared to a representation rate of 2.7% Black m anagers in the county.
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hh. Defendants’ Memphis, Tennessee, store, where out of 11 m anagers, only

one (7.7%) was Black, com pared to a representation rate of 21.6% Black

managers in the county.

ii. Defendants’ Mesa, Arizona, store, wh ere out of 12 managers, not one was

Black, compared to a representation rate of 2.5% Black managers in the county.

jj. Defendants’ Miami, Florida, store, where out of 11 managers, not one was

Black, compared to a representation rate of 8% Black managers in the county.

kk. Defendants’ Myrtle Beach, South Carolina, store, where out of t

en

managers, not one was Black, compared to a representation rate of 5% Black

managers in the county.

ll. Defendants’ Nashville, Tennessee, st ore, where out of 12 m anagers, not

one was Black, com pared to a representati on rate of 8.8% Black m anagers in the

county.

mm. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 m anagers,

not one was Black, compared to a represen tation rate of 6.1% Black m anagers in

the county.

nn. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was

Black, compared to a representation rate of 3.6% Black managers in the county.

oo. Defendants’ Orlando, F lorida, store, where out of 13 m anagers, not one

was Black, com pared to a representation rate of 6.9% Black m anagers in the

county.

pp. Defendants’ Pearl, Mississippi, store, where out of 12 m anagers, only one

(7.1%) was Black, compared to a representation rate of 10.5% Black m anagers in

the county.

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qq. Defendants’ Pearland, Texas, store, where out of ten m anagers, only one (7.1%) was Black, compared to a represen tation rate of 5.8% Black m anagers in the county. rr. Defendants’ Portage, In diana, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 2.1% Black m anagers in the county. ss. Defendants’ Prattville, Alabama, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 4.2% Black m anagers in the county. tt. Defendants’ Rancho C ucamonga, California, store, wh ere out of 12 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. uu. Defendants’ Rossford, Ohio, store, where out of 12 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. vv. Defendants’ San Antonio, Texas, store, where out of 13 managers, not one was Black, com pared to a representation rate of 5.5% Black m anagers in the county. 155. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2009 E EO-1 reports for 52 retail st ores) to the represen tation rate of Black managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 27 Black managers in 2009.
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Defendants’ Discriminatory Failure to Hire Black Managers at Defendants’ Retail Stores in 2010 156. According to Defendants’ 2010 E EO-1 reports, out of a total em ployment of 8,839 employees in 52 retail stores, 586 (6.6%) employees were managers. 157. According to Defendants’ 2010 EEO-1 reports, out of 586 m anagers in Defendants’ 52 retail stores, only 12 (2%) were Black. 158. According to Defendants’ 2010 EE O-1 reports, 45 (86.5%) of Defenda nts’ 52 retail stores had a lowe r percentage of Black managers compared to the representation rate of Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 12 m anagers, not one was Black, compared to a representation rate of 1.3% Black managers in the county. b. Defendants’ Auburn, New York, store, where out of 10 managers, not one was Black, com pared to a representation rate of .6% Bl ack managers in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 11 managers, not one was Black, com pared to a representati on rate of 7.9% Black m anagers in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Black, com pared to a representation rate of 5% Black m anagers in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 10 m anagers, not one was Black, com pared to a representati on rate of 12% Black m anagers in the county.
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f. Defendants’ Branson, Missouri, store, where out of 10 m anagers, not one was Black, com pared to a representation rate of .2% Bl ack managers in the county. g. Defendants’ Broken Arrow, Oklahom a, store, where out of 12 m anagers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county. h. Defendants’ Cincinnati, Ohio, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 7.5% Black m anagers in the county. i. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Black, com pared to a representation rate of 2.8% Black m anagers in the county. j. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Black, com pared to a representation rate of 4.9% Black m anagers in the county. k. Defendants’ Concord, North Carolina, store, where out of 12 m anagers, not one was Black, compared to a represen tation rate of 4.2% Black m anagers in the county. l. Defendants’ Council Bluffs, Iowa, stor e, where out of 12 m anagers, not one was Black, com pared to a representa tion rate of .4% Black m anagers in the county. m. Defendants’ Dania, Florida, store, where out of 13 m anagers, only one (7.7%) was Black, compared to a represen tation rate of 8.3% Black m anagers in the county.
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n. Defendants’ Denham Springs, Louisiana, store, where out of 12 managers, not one was Black, compared to a represen tation rate of 3.7% Black m anagers in the county. o. Defendants’ Destin, Florida, store, where out of 10 managers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. p. Defendants’ Duluth, Georgia, store, where out of 12 m anagers, not one was Black, com pared to a representation rate of 10.3% Black m anagers in the county. q. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Black, compared to a represen tation rate of 2.2% Black m anagers in the county. r. Defendants’ Ft. Myers, Florida, stor e, where out of 12 managers, not one was Black, com pared to a representation rate of 1.3% Black m anagers in the county. s. Defendants’ Garland, Texas, store, where out of nine m anagers, not one was Black, com pared to a representation rate of 9.3% Black m anagers in the county. t. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Black, com pared to a representation rate of 4.1% Black m anagers in the county. u. Defendants’ Hampton, Virginia, stor e, where out of 10 m anagers, only two (20%) were Black, compared to a representation rate of 23% Black managers in the county.
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v. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Black, com pared to a representation rate of 8.8% Black m anagers in the county. w. Defendants’ Harrisburg, Pennsylvania, store, w here out of 11 m anagers, not one was Black, compared to a represen tation rate of 5.8% Black m anagers in the county. x. Defendants’ Independence, Missouri, store, where out of 11 m anagers, only one (8.3%) was Black, com pared to a representation rate of 9.1% Black managers in the county. y. Defendants’ Islamorada, Florida, store, where out of six managers, not one was Black, com pared to a representation rate of 1.9% Black m anagers in the county. z. Defendants’ Katy, Texas, store, wher e out of ten m anagers, not one was Black, compared to a representation rate of 9.6% Black managers in the county. aa. Defendants’ Kodak, Tennessee, store, where out of 12 m anagers, not one was Black, com pared to a repres entation rate of 1% Black m anagers in the county. bb. Defendants’ Las Vegas, Nevada, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 5.1% Black m anagers in the county. cc. Defendants’ Leeds, Alabam a, store, where out of 12 managers only one (8.3%) was Black, compared to a representation rate of 15.3% Black m anagers in the county.
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dd. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Black, com pared to a representation rate of 20.5% Black m anagers in the county. ee. Defendants’ Manteca, California, store, where out of 12 managers, not one was Black, com pared to a representation rate of 2.7% Black m anagers in the county. ff. Defendants’ Memphis, Tennessee, store, where out of 11 m anagers, only one (7.7%) was Black, com pared to a representation rate of 21.6% Black managers in the county. gg. Defendants’ Mesa, Arizona, store, wh ere out of 11 managers, not one was Black, compared to a representation rate of 2.5% Black managers in the county. hh. Defendants’ Miami, Florida, store, where out of ten m anagers, not one was Black, com pared to a repres entation rate of 8% Black m anagers in the county. ii. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 11 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. jj. Defendants’ Nashville, Tennessee, st ore, where out of 12 m anagers, not one was Black, com pared to a representati on rate of 8.8% Black m anagers in the county. kk. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 m anagers, not one was Black, compared to a represen tation rate of 6.1% Black m anagers in the county.
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ll. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was Black, compared to a representation rate of 3.6% Black managers in the county. mm. Defendants’ Orlando, F lorida, store, where out of 13 m anagers, not one was Black, com pared to a representation rate of 6.9% Black m anagers in the county. nn. Defendants’ Pearl, Mississippi, store, where out of 11 m anagers, only one (7.1%) was Black, compared to a representation rate of 10.5% Black m anagers in the county. oo. Defendants’ Pearland, Texas, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 5.8% Black m anagers in the county. pp. Defendants’ Portage, In diana, store, where out of 11 m anagers, not one was Black, com pared to a representation rate of 2.1% Black m anagers in the county. qq. Defendants’ Prattville, Alabama, store, where out of ten managers, not one was Black, com pared to a representation rate of 4.2% Black m anagers in the county. rr. Defendants’ Rancho C ucamonga, California, store, wh ere out of 12 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. ss. Defendants’ San Antonio, Texas, store, where out of 13 managers, not one was Black, com pared to a representation rate of 5.5% Black m anagers in the county.
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159. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2010 E EO-1 reports for 52 retail st ores) to the represen tation rate of Black managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 25 Black managers in 2010.
DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE BLACK SALES EMPLOYEES Defendants’ Discriminatory Failure to Hire
Black Sales Employees at Defendants’ Retail Stores in 2007 160. According to Defendants’ 2007 E EO-1 reports, out of a total em ployment of 8,186 employees in 43 retail stores, 5,997 (73.3%) employees were sales employees. 161. According to the instr uctions for filing EEO-1 reports in the EEO-1 Job Classification Guide and the EEO-1 Instruction Booklet provided to employers, sales employees include such positions as retail salesperson, sale s representative, cashier, and other sales-related workers. 162. According to Defendants’ 2007 EE O-1 reports, out of 5,997 sales em ployees in Defendants’ 43 retail stores, only 252 (4.2%) were Black. 163. According to Defendants’ 2007 EE O-1 reports, 38 (88.8%) of Defenda nts’ 43 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales em ployees in the co unty in whic h the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Auburn, New York, store, where out of 153 employees, 126 (82.4%) were sales em ployees, and of those 126 sales employees, not one was Black, compared to a represen tation rate of .6% Black sales em ployees in the county.
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b. Defendants’ Auburn Hills, Michigan, store, where out of 153 em ployees, 110 (71.9%) were sales em ployees, and out of those 110 sale s employees, only two (1.8%) were Black, com pared to a re presentation rate of 11.5% Black sales employees in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 195 employees, 150 (76.9%) were sales em ployees, and out of those 150 sales employees, only eight (5.3%) were Black, compared to a repr esentation rate of 7.2% Black sales employees in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 195 em ployees, 147 (75.6%) were sales employees, and out of those 147 sales employees, only 13 (8.8%) were Black, compared to a repr esentation rate of 24.7% Black sales employees in the county. e. Defendants’ Branson, Missouri, stor e, where out of 109 em ployees, 83 (76.1%) were sales employees, and out of those 83 sales employees, not one was Black, compared to a represen tation rate of .1% Black sales em ployees in the county. f. Defendants’ Broken Arrow, Oklahom a, store, where out of 177 employees, 131 (74%) were sales e mployees, and out of those 131 sales employees, not one was Black, compared to a representation rate of 5.9% Black sales employees in the county. g. Defendants’ Cincinnati, Ohio, stor e, where out of 229 employees, 183 (79.9%) were sales employees, and out of those 183 sales e mployees, only six (3.3%) were Black, com pared to a repr esentation rate of 10% Bl ack sales employees in the county.
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h. Defendants’ Clarksville, Indiana, store, where out of 272 employees, 210 (77.2%) were sales employees, and out of those 210 sales employees in, only one (.5%) was Black, compared to a repr esentation rate of 4.7% Black sales employees in the county. i. Defendants’ Columbia, Missouri, stor e, where out of 125 em ployees, 90 (72%) were sales em ployees, and out of those 90 sales employees, not one was Black, compared to a represen tation rate of 4. 9% Black s ales employees in th e county. j. Defendants’ Concord, North Carolina, store, where out of 242 e mployees, 169 (69.8%) were sales em ployees, and out of those 169 sale s employees, only five (3%) were Black, com pared to a re presentation rate of 9.9% Black sales employees in the county. k. Defendants’ Council Bluffs, Iowa, store, where out of 177 employees, 130 (73.4%) were sales employees, and out of those 130 sales employees, not one was Black, compared to a represen tation rate of 1. 3% Black s ales employees in th e county. l. Defendants’ Dania, Florida, store, where out of 255 employees, 181 (71%) were sales employees, and out of thos e 181 sales em ployees, only eight (4.4%) were Black, compared to a representation rate of 13.8% Black sales em ployees in the county. m. Defendants’ Denver, C olorado, store, where out of 241 employees, 180 (74.7%) were sales employees, and out of those 180 sales e mployees, only six (3.3%) were Black, compared to a repr esentation rate of 5.4% Black sales employees in the county.
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n. Defendants’ Destin, Florida, stor e, where out of 108 employees, 79 (73.1%) were sales em ployees, and out of those 79 sales em ployees, only one (1.3%) was Black, compared to a repr esentation rate of 5.6% Black sales employees in the county. o. Defendants’ Duluth, Georgia, store, where out of 208 employees, 153 (77.2%) were sales em ployees, and out of those 153 sales employees, only two (1.3%) were Black, compared to a repr esentation rate of 12.5% Black sales employees in the county. p. Defendants’ Ft. Myers, Florida, st ore, where out of 190 e mployees, 136 (71.6%) were sales em ployees, and out of those 136 sales employees, only four (2.9%) were Black, compared to a repr esentation rate of 3.8% Black sales employees in the county. q. Defendants’ Garland, Texas, store, where out of 139 e mployees, 103 (74%) were sales em ployees, and out of those 103 sales employees, not one was Black, compared to a represen tation rate of 11.6% Black sale s employees in the county. r. Defendants’ Grapevine, Texas, stor e, where out of 300 e mployees, 148 (49.3%) were sales em ployees, and out of those 148 sales employees, only two (1.4%) were Black, compared to a repr esentation rate of 8.2% Black sales employees in the county. s. Defendants’ Hampton, Virginia, store, where out of 164 employees, 126 (76.8%) were sales employees, and out of those 125 sales em ployees, only 18 (14.3%) were Black, com pared to a repr esentation rate of 41.4% Black sales employees in the county.
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t. Defendants’ Hanover, Maryland, stor e, where out of 172 employees, 128 (74.4%) were sales em ployees, and out of those 128 sales employees, only four (3.1%) were Black, compared to a repr esentation rate of 10.6% Black sales employees in the county. u. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 e mployees, 171 (71.3%) were sales em ployees, and out of those 171 sales em ployees, store, only eight (4.7%) were Black, compared to a representation rate of 7.9% Black sales employees in the county. v. Defendants’ Katy, Texas, store, where out of 143 em ployees, 98 (68.5%) were sales employees, and out of those 98 sales em ployees, only one (1%) was Black, compared to a represen tation rate of 14.2% Black sale s employees in the county. w. Defendants’ Las Vegas, Nevada, stor e, where out of 210 employees, 149 (71%) were sales em ployees, and out of those 149 sales employees, only three (2%) were Black, compared to a repr esentation rate of 5.9% Black sales employees in the county. x. Defendants’ Macon, Georgia, store, where out of 156 employees, 120 (76.9%) were sales employees, and out of those 120 sales em ployees, only 24 (20%) were Black, compared to a repr esentation rate of 26.7% Black sales employees in the county. y. Defendants’ Memphis, Tennessee, store, where out of 143 employees, 106 (74.1%) were sales em ployees, and out of those 106 sales employees, only four (3.8%) were Black, compared to a repr esentation rate of 27.6% Black sales employees in the county.
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z. Defendants’ Mesa, Arizona, store, where out of 187 e mployees, 134 (71.7%) were sales employees, and out of those 134 sales employees in, only one (.7%) was Black, compared to a repr esentation rate of 2.6% Black sales employees in the county. aa. Defendants’ Miami, Florida, store, where out of 220 employees, 168 (76.4%) were sales em ployees, and out of those 168 sales employees, only seven (4.2%) were Black, compared to a repr esentation rate of 10.3% Black sales employees in the county. bb. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 151 employees, 109 (72.2%) were sales em ployees, and out of those 109 sales employees, only ten (9.2%) were Black, co mpared to a representation rate of 10.3% Black sales employees in the county. cc. Defendants’ Nashville, Tennessee, store, where out of 200 employees, 139 (69.5%) were sales em ployees, and out of those 139 sales employees, only three (2.2%) were Black, compared to a repr esentation rate of 12.1% Black sales employees in the county. dd. Defendants’ Oklahoma City, Okla homa, store, where out of 155 employees, 118 (76.1%) were sales em ployees, and out of those 118 sales employees, only four (3.4%) were Black, co mpared to a represen tation rate of 8.4% Black sales employees in the county. ee. Defendants’ Olathe, K ansa, store, where out of 174 employees, 122 (70.1%) were sales employees, and out of those 122 sales employees in, only one (.8%) was Black, compared to a repr esentation rate of 3.7% Black sales employees in the county.
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ff. Defendants’ Orlando, F lorida, store, where out of 277 employees, 204 (73.6%) were sales employees, and out of those 204 sales e mployees, only ten (4.9%) were Black, compared to a repr esentation rate of 9.6% Black sales employees in the county. gg. Defendants’ Pearl, Mississippi, st ore, where out of 164 employees, 108 (65.9%) were sales em ployees, and out of those 108 sales employees, only eight (7.4%) were Black, compared to a repr esentation rate of 15.4% Black sales employees in the county. hh. Defendants’ Portage, Indiana, stor e, where out of 200 e mployees, 150 (75%) were sales em ployees, and out of those 150 sales em ployees, only two (1.3%) were Black, compared to a repr esentation rate of 1.5% Black sales employees in the county. ii. Defendants’ Prattville, Alabama, store, where out of 193 employees, 137 (71%) were sales em ployees, and out of those 150 sales em ployees, only 13 (9.5%) were Black, compared to a repr esentation rate of 10.4% Black sales employees in the county. jj. Defendants’ Rancho Cucam onga, California, store, where out of 305 employees, 236 (77.4%) were sales em ployees, and out of those 236 sales employees, store, only ten (4.2%) were Bl ack, compared to a representation rate of 5.6% Black sales employees in the county. kk. Defendants’ San Antonio, Texas, stor e, where out of 197 employees, 145 (73.6%) were sales employees, and out of those 145 sales employees in, only one (.7%) was Black, compared to a repr esentation rate of 5.2% Black sales employees in the county.
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ll. Defendants’ Savannah, Geor gia, store, where out of 147 employees, 109 (74.1%) were sales employees, and out of those 145 sales em ployees, only 14 (12.8%) were Black, com pared to a repr esentation rate of 28.3% Black sales employees in the county. 164. Comparing the num ber of Black sales employees employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Black sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defenda nts had a net shortfall of 311 Black sales employees in 2007.
Defendants’ Discriminatory Failure to Hire Black Sales Employees at Defendants’ Retail Stores in 2008 165. According to Defendants’ 2008 E EO-1 reports, out of a total em ployment of 8,410 employees in 49 retail stores, 6,214 (73.9%) employees were sales employees. 166. According to Defendants’ 2008 EE O-1 reports, out of 6,214 sales em ployees in Defendants’ 49 retail stores, only 271 (4.4%) were Black. 167. According to Defendants’ 2008 EE O-1 reports, 43 (87.8%) of Defenda nts’ 49 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales em ployees in the co unty in whic h the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Ashland, Virginia, stor e, where out of 171 em ployees, 136 (79.5%) were sales employees, and out of those 136 sales e mployees, only ten (7.4%) were Black, compared to a repr esentation rate of 8.9% Black sales employees in the county.
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b. Defendants’ Auburn, New York, store, where out of 135 employees, 107 (79.3%) were sales employees, and out of those 107 sales employees, not one was Black, compared to a represen tation rate of .6% Black sales em ployees in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 148 em ployees, 108 (73%) were sales employees, and out of those 108 sales e mployees, only one (.9%) was Black, compared to a repr esentation rate of 11.5% Black sales employees in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 177 employees, 137 (77.4%) were sales em ployees, and out of those 137 sales employees, only nine (6.6%) was Black, compared to a repr esentation rate of 7.2% Black sales employees in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 171 em ployees, 132 (77.2%) were sales employees, and out of those 137 sales employees, only 11 (8.3%) were Black, compared to a repr esentation rate of 24.7% Black sales employees in the county. f. Defendants’ Branson, Missouri, stor e, where out of 101 em ployees, 79 (78.2%) were sales employees, and out of those 79 sales employees, not one was Black, compared to a represen tation rate of .1% Black sales em ployees in the county. g. Defendants’ Broken Arrow, Oklahom a, store, where out of 212 employees, 165 (77.8%) were sales em ployees, and out of those 165 sales employees, not one was Black, compared to a representation rate of 5.9% Black sales employees in the county.
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h. Defendants’ Cincinnati, Ohio, stor e, where out of 222 employees, 179 (80.6%) were sales em ployees, and out of those 179 sales employees, only seven (3.9%) were Black, com pared to a repr esentation rate of 10% Bl ack sales employees in the county. i. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 172 (68.4%) were sales employees, and out of those 172 sales employees, not one was Black, compared to a represen tation rate of 4. 7% Black s ales employees in th e county. j. Defendants’ Columbia, Missouri, st ore, where out of 98 e mployees, 67 (68.4%) were sales employees, and out of those 67 sales employees, not one was Black, compared to a represen tation rate of 4. 9% Black s ales employees in th e county. k. Defendants’ Concord, North Carolina, store, where out of 196 e mployees, 136 (69.4%) were sales em ployees, and out of those 136 sale s employees, only five (3.7%) were Black, com pared to a representation rate of 9.9% Black sales employees in the county. l. Defendants’ Council Bluffs, Iowa, store, where out of 165 employees, 123 (74.5%) were sales employees, and out of those 123 sales em ployees, only one (.8%) was Black, compared to a repr esentation rate of 1.3% Black sales employees in the county. m. Defendants’ Dania, F lorida, store, where out of 229 employees, 165 (72.1%) were sales em ployees, and out of those 165 sales employees, only eight (4.8%) were Black, compared to a repr esentation rate of 13.8% Black sales employees in the county.
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n. Defendants’ Denham Springs, Louisi ana, store, where out of 166 employees, 111 (66.9%) were sales em ployees, and out of those 111 sales employees, only four (3.6%) were Black, co mpared to a represen tation rate of 5.2% Black sales employees in the county. o. Defendants’ Denver, C olorado, store, where out of 198 employees, 145 (73.2%) were sales em ployees, and out of those 145 sales employees, only five (3.4%) were Black, compared to a repr esentation rate of 5.4% Black sales employees in the county. p. Defendants’ Destin, Florida, store, where out of 99 employees, 73 (73.7%) were sales employees, and out of thos e 73 sales e mployees, only one (1.4%) was Black, compared to a represen tation rate of 5. 6% Black s ales employees in th e county. q. Defendants’ Duluth, Georgia, store, where out of 193 employees, 144 (74.6%) were sales em ployees, and out of those 166 sales employees, only three (2.1%) were Black, compared to a repr esentation rate of 12.5% Black sales employees in the county. r. Defendants’ Foxborough, Massachusetts , store, where out of 207 employees, 142 (68.6%) were sales em ployees, and out of those 142 sales employees, not one was Black, compared to a representation rate of 2.8% Black sales employees in the county. s. Defendants’ Ft. Myers, Florida, st ore, where out of 172 e mployees, 131 (73.8%) were sales em ployees, and out of those 131 sales employees, only two (1.5%) were Black, compared to a repr esentation rate of 3.8% Black sales employees in the county.
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t. Defendants’ Garland, Texas, stor e, where out of 123 em ployees, 97 (78.9%) were sales em ployees, and out of those 97 sales em ployees, only one (1%) was Black, compared to a representation rate of 11.6% Black sales employees in the county. u. Defendants’ Grapevine, Texas, stor e, where out of 291 e mployees, 147 (50.5%) were sales employees, and out of those 147 sales em ployees, only one (.7%) was Black, compared to a repr esentation rate of 8.2% Black sales employees in the county. v. Defendants’ Gurnee, Illinois, store, where out of 175 e mployees, 139 (79.4%) were sales em ployees, and out of those 139 sales employees, only five (3.6%) were Black, compared to a repr esentation rate of 4.5% Black sales employees in the county. w. Defendants’ Hampton, Virginia, store, where out of 165 employees, 127 (77%) were sales em ployees, and out of those 139 sales em ployees, only 24 (18.9%) were Black, com pared to a repr esentation rate of 41.4% Black sales employees in the county. x. Defendants’ Hanover, Maryland, stor e, where out of 221 employees, 175 (79.2%) were sales employees, and out of those 139 sales em ployees, only 13 (7.4%) were Black, compared to a repr esentation rate of 10.6% Black sales employees in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 e mployees, 168 (71.8%) were sales em ployees, and out of those 168 sale s employees, only seven (4.2%) were Black, com pared to a representation rate of 7.9% Black sales employees in the county.
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z. Defendants’ Independence, Missouri, store, where out of 166 e mployees, 125 (75.3%) were sales em ployees, and out of those 125 sale s employees, only one (.8%) was Black, com pared to a re presentation rate of 10.7% Black sales employees in the county. aa. Defendants’ Katy, Texas, store, where out of 129 em ployees, 95 (73.6%) were sales em ployees, and out of thos e 95 sales em ployees, only three (3.2%) were Black, compared to a representation rate of 14.2% Black sales em ployees in the county. bb. Defendants’ Las Vegas, Nevada, stor e, where out of 195 employees, 144 (73.8%) were sales em ployees, and out of those 144 sales employees, only two (1.4%) were Black, compared to a repr esentation rate of 5.9% Black sales employees in the county. cc. Defendants’ Macon, Georgia, store, where out of 158 employees, 125 (79.1%) were sales employees, and out of those 144 sales em ployees, only 18 (14.4%) were Black, com pared to a repr esentation rate of 26.7% Black sales employees in the county. dd. Defendants’ Memphis, Tennessee, store, where out of 125 em ployees, 93 (74.4%) were sales em ployees, and out of those 144 sales employees, only seven (7.5%) were Black, compared to a repr esentation rate of 27.6% Black sales employees in the county. ee. Defendants’ Mesa, Arizona, store, where out of 154 e mployees, 115 (74.7%) were sales em ployees, and out of those 115 sales employees, only two (1.7%) were Black, compared to a repr esentation rate of 2.6% Black sales employees in the county.
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ff. Defendants’ Miami, Florida, store, where out of 119 e mployees, 81 (68.1%) were sales employees, and out of those 81 sales employees, not one was Black, compared to a represen tation rate of 10.3% Black sale s employees in the county. gg. Defendants’ Nashville, Tennessee, store, where out of 196 employees, 138 (70.4%) were sales em ployees, and out of those 138 sales employees, only two (1.4%) were Black, compared to a repr esentation rate of 12.1% Black sales employees in the county. hh. Defendants’ Oklahoma City, Okla homa, store, where out of 130 employees, 98 (75.4%) were sales em ployees, and out of those 98 sales employees, only six (6.1%) were Black, compared to a representation rate of 8.4% Black sales employees in the county. ii. Defendants’ Olathe, Kansas, store, where out of 156 employees, 114 (73.1%) were sales em ployees, and out of those 114 sales employees, only two (1.8%) were Black, compared to a repr esentation rate of 3.7% Black sales employees in the county. jj. Defendants’ Orlando, F lorida, store, where out of 224 employees, 166 (74.1%) were sales employees, and out of those 166 sales e mployees, only ten (6%) were Black, compared to a repr esentation rate of 9.6% Black sales employees in the county. kk. Defendants’ Pearl, Mississippi, st ore, where out of 153 employees, 108 (70.6%) were sales em ployees, and out of those 108 sales employees, only nine (8.3%) were Black, compared to a repr esentation rate of 15.4% Black sales employees in the county.
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ll. Defendants’ Portage, Indiana, stor e, where out of 157 e mployees, 117 (74.5%) were sales employees, and out of those 117 sales em ployees, only one (.9%) was Black, compared to a repr esentation rate of 1.5% Black sales employees in the county. mm. Defendants’ Prattville, Alabama, store, where out of 187 employees, 135 (72.2%) were sales em ployees, and out of those 135 sales employees, only eight (5.9%) were Black, compared to a repr esentation rate of 10.4% Black sales employees in the county. nn. Defendants’ Rancho Cucam onga, California, store, where out of 260 employees, 201 (77.3%) were sales em ployees, and out of those 201 sales employees, only eight (4%) were Black, co mpared to a repres entation rate of 5.6% Black sales employees in the county. oo. Defendants’ Rossford, Ohio, store, where out of 216 e mployees, 166 (76.7%) were sales em ployees, and out those 166 sales em ployees, only three (1.8%) were Black, compared to a repr esentation rate of 1.9% Black sales employees in the county. pp. Defendants’ San Antonio, Texas, stor e, where out of 179 employees, 134 (74.9%) were sales employees, and out of those 134 sales employees, not one was Black, compared to a represen tation rate of 5. 2% Black s ales employees in th e county. qq. Defendants’ Savannah, Geor gia, store, where out of 118 employees, 84 (71.2%) were sales em ployees, and out of those 84 sales e mployees, only 18 (21.4%) were Black, com pared to a repr esentation rate of 28.3% Black sales employees in the county.
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168. Comparing the num ber of Black sales employees employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Black sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defenda nts had a net shortfall of 294 Black sales employees in 2008.
Defendants’ Discriminatory Failure to Hire Black Sales Employees at Defendants’ Retail Stores in 2009 169. According to Defendants’ 2009 E EO-1 reports, out of a total em ployment of 8,561 employees in 52 retail stores, 6,496 (75.9%) employees were sales employees. 170. According to Defendants’ 2009 EE O-1 reports, out of 6,496 sales em ployees in Defendants’ 52 retail stores, only 266 (4.1%) were Black. 171. According to Defendants’ 2009 EE O-1 reports, 44 (84.6%) of Defenda nts’ 52 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales em ployees in the co unty in whic h the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 208 employees, 165 (79.3%) were sales employees, and out those 165 sales employees, only one (.6%) was Black, compared to a representation rate of 2.3% Black sales em ployees in the county. b. Defendants’ Ashland, Virginia, stor e, where out of 202 em ployees, 161 (79.7%) were sales employees, and out of those 136 sales employees in, only ten (6.2%) were Black, compared to a repr esentation rate of 8.9% Black sales employees in the county.
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c. Defendants’ Auburn, New York, store, where out of 144 employees, 116 (80.6%) were sales employees, and out of those 116 sales employees, not one was Black, compared to a represen tation rate of .6% Black sales em ployees in the county. d. Defendants’ Auburn Hills, Michigan, store, where out of 137 em ployees, 102 (74.5%) were sales em ployees, and out of those 102 sale s employees, only one (1%) w as Black, com pared to a repr esentation rate of 11.5% Black sales employees in the county. e. Defendants’ Bolingbrook, Illinois, st ore, where out of 168 employee, 137 (80.7%) were sales employees, and out of those 137 sales e mployees, only six (4.4%) were Black, compared to a repr esentation rate of 7.2% Black sales employees in the county. f. Defendants’ Bossier City, Louisiana, store, where out of 166 em ployees, 130 (78.3%) were sales employees, and out of those 130 sales employees, only 12 (9.2%) were Black, compared to a repr esentation rate of 24.7% Black sales employees in the county. g. Defendants’ Branson, Missouri, stor e, where out of 97 employees, 79 (81.4%) were sales employ ees, and of those 79 sale s employees, not one was Black, compared to a represen tation rate of .1% Black sales em ployees in the county. h. Defendants’ Broken Arrow, Oklahom a, store, where out of 210 employees, 152 (72.4%) were sales em ployees, and out of those 152 sales employees, only one (.7%) was Black, com pared to a representation rate of 5.9% Black sales employees in the county.
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i. Defendants’ Cincinnati, Ohio, stor e, where out of 220 employees, 186 (84.5%) were sales em ployees, and out of those 186 sales employees, only five (2.7%) were Black, com pared to a repr esentation rate of 10% Bl ack sales employees in the county. j. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 173 (77.6%) were sales employees, and out of those 173 sales employees, not one was Black, compared to a represen tation rate of 4. 7% Black s ales employees in th e county. k. Defendants’ Columbia, Missouri, st ore, where out of 74 e mployees, 50 (67.6%) were sales employees, and out of those 50 sales employees, not one was Black, compared to a represen tation rate of 4. 9% Black s ales employees in th e county. l. Defendants’ Concord, North Carolina, store, where out of 189 e mployees, 143 (75.7 %) were sales em ployees, and out of those 143 sales em ployees, only eight (5.6%) were Black, com pared to a representation rate of 9.9% Black sales employees in the county. m. Defendants’ Council Bluffs, Iowa, store, where out of 172 employees, 124 (72.1%) were sales em ployees, and of those 124 sales employees, not one was Black, compared to a represen tation rate of 1. 3% Black s ales employees in th e county. n. Defendants’ Dania, Florida, store, where out of 233 employees, 177 (76%) were sales employees, and out of those 177 sales employees, only six (3.4%) were Black, compared to a represen tation rate of 13.8% Black sale s employees in the county.
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o. Defendants’ Denham Springs, Louisi ana, store, where out of 160 employees, 118 (73.8%) were sales em ployees, and out of those 118 sales employees, only one (.8%) was Black, com pared to a representation rate of 5.2% Black sales employees in the county. p. Defendants’ Denver, C olorado, store, where out of 216 employees, 167 (77.3%) were sales employees, and out of those 167 sales e mployees, only six (3.6%) were Black, compared to a repr esentation rate of 5.4% Black sales employees in the county. q. Defendants’ Destin, Florida, store, where out of 100 employees, 75 (75%) were sales employees, and out of thos e 75 sales e mployees, only one (1.3%) was Black, compared to a represen tation rate of 5. 6% Black s ales employees in th e county. r. Defendants’ Duluth, Georgia, store, where out of 182 employees, 138 (75.8%) were sales employees, and out of those 138 sales em ployees, only one (.7%) was Black, compared to a repr esentation rate of 12.5% Black sales employees in the county. s. Defendants’ Foxborough, Massachusetts , store, where out of 188 employees, 129 (68.6%) were sales em ployees, and out of those 129 sales employees, only one (.8%) was Black, com pared to a representation rate of 2.8% Black sales employees in the county. t. Defendants’ Ft. Myers, Florida, st ore, where out of 161 e mployees, 123 (76.4%) were sales employees, and out of those 123 sales em ployees, only one (.8%) was Black, compared to a repr esentation rate of 3.8% Black sales employees in the county.
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u. Defendants’ Garland, Texas, stor e, where out of 115 em ployees, 93 (80.7%) were sales employees, and out of those 93 sales em ployees, only two (2.2%) were Black, compared to a repr esentation rate of 11.6% Black sales employees in the county. v. Defendants’ Grapevine, Texas, stor e, where out of 242 e mployees, 137 (56.6%) were sales em ployees, and out of those 137 sales employees, only two (1.5%) were Black, compared to a repr esentation rate of 8.2% Black sales employees in the county. w. Defendants’ Gurnee, Illinois, store, where out of 144 e mployees, 112 (77.8%) were sales em ployees, and out of those 112 sales employees, only three (2.7%) were Black, compared to a repr esentation rate of 4.5% Black sales employees in the county. x. Defendants’ Hampton, Virginia, store, where out of 145 employees, 118 (81.4%) were sales employees, and out of those 118 sales em ployees, only 26 (22%) were Black, compared to a repr esentation rate of 41.4% Black sales employees in the county. y. Defendants’ Hanover, Maryland, stor e, where out of 214 employees, 180 (84.1%) were sales em ployees, and out of those 180 sales employees, only seven (3.9%) were Black, compared to a repr esentation rate of 10.6% Black sales employees in the county. z. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 e mployees, 144 (73.5%) were sales em ployees, and out of those 144 sale s employees, only four (2.8%) were Black, com pared to a representation rate of 7.9% Black sales employees in the county.
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aa. Defendants’ Independence, Missouri, store, where out of 149 e mployees, 111 (74.5%) were sales employees, and out of those 111 sales employees, not one was Black, compared to a representation rate of 10.7% Black sales em ployees in the county. bb. Defendants’ Katy, Texas, store, where out of 125 em ployees, 98 (78.4%) were sales employees, and out of those 98 sales employees, only five (5.1%) were Black, compared to a represen tation rate of 14.2% Black sale s employees in the county. cc. Defendants’ Las Vegas, Nevada, stor e, where out of 164 employees, 122 (74.4%) were sales em ployees, and out of those 122 sales employees, only three (2.5%) were Black, compared to a repr esentation rate of 5.9% Black sales employees in the county. dd. Defendants’ Leeds, Alabam a, store, where out of 218 e mployees, 171 (78.4%) were sales em ployees, and out of those 171 sales employees, only eight (4.7%) were Black, compared to a repr esentation rate of 21.5% Black sales employees in the county. ee. Defendants’ Macon, Georgia, store, where out of 137 employees, 103 (75.2%) were sales employees, and out of those 103 sales em ployees, only 18 (17.5%) were Black, com pared to a repr esentation rate of 26.7% Black sales employees in the county. ff. Defendants’ Memphis, Tennessee, store, where out of 131 employees, 100 (76.3%) were sales employees, and out of those 100 sales e mployees, only six (6%) were Black, compared to a repr esentation rate of 27.6% Black sales employees in the county.
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gg. Defendants’ Miami, Florida, store, where out of 112 e mployees, 80 (71.4%) were sales em ployees, and out of those 80 sales em ployees, only one (1.3%) was Black, compared to a repr esentation rate of 10.3% Black sales employees in the county. hh. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 131 employees, 99 (75.6%) were sales em ployees, and out of those 99 sales employees, only seven (7.1%) were Black, co mpared to a represen tation rate of 10.3% Black sales employees in the county. ii. Defendants’ Nashville, Tennessee, store, where out of 181 employees, 135 (74.6%) were sales employees, and out of those 135 sales em ployees, only one (.7%) was Black, compared to a repr esentation rate of 12.1% Black sales employees in the county. jj. Defendants’ Oklahoma City, Okla homa, store, where out of 146 employees, 113 (77.4%) were sales em ployees, and out of those 113 sales employees, only four (3.5%) were Black, co mpared to a represen tation rate of 8.4% Black sales employees in the county. kk. Defendants’ Olathe, Kansas, store, where out of 128 employees, 97 (75.8%) were sales em ployees, and out of those 97 sales employees, only three (3.1%) were Black, compared to a repr esentation rate of 3.7% Black sales employees in the county. ll. Defendants’ Orlando, F lorida, store, where out of 214 employees, 161 (75.2%) were sales employees, and out of those 161 sales em ployees, only 12 (7.5%) were Black, compared to a repr esentation rate of 9.6% Black sales employees in the county.
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mm. Defendants’ Pearl, Mississippi, st ore, where out of 159 employees, 105 (66%) were sales em ployees, and out of those 105 sales em ployees, only ten (9.5%) were Black, compared to a repr esentation rate of 15.4% Black sales employees in the county. nn. Defendants’ Prattville, Alabama, store, where out of 148 employees, 106 (71.6%) were sales employees, and out of those 106 sales e mployees, only six (5.7%) were Black, compared to a repr esentation rate of 10.4% Black sales employees in the county. oo. Defendants’ Rossford, Ohio, store, where out of 167 e mployees, 126 (75.4%) were sales employees, and out of those 126 sales em ployees, only one (.8%) was Black, compared to a repr esentation rate of 1.9% Black sales employees in the county. pp. Defendants’ San Antonio, Texas, stor e, where out of 154 employees, 118 (76.6%) were sales employees, and out of those 118 sales em ployees, only one (.8%) was Black, compared to a repr esentation rate of 5.2% Black sales employees in the county. qq. Defendants’ Savannah, Geor gia, store, where out of 117 employees, 85 (72.6%) were sales em ployees, and out of those 85 sales e mployees, only 17 (20%) were Black, compared to a repr esentation rate of 28.3% Black sales employees in the county. rr. Defendants’ Spanish Fort, Alabam a, store, where out of 177 e mployees, 145 (81.9%) were sales em ployees, and out of those 145 sale s employees, only nine (6.2%) were Black, com pared to a representation rate of 7% Bl ack sales employees in the county.
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172. Comparing the num ber of Black sales employees employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Black sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defenda nts had a net shortfall of 329 Black sales employees in 2009.
Defendants’ Discriminatory Failure to Hire Black Sales Employees at Defendants’ Retail Stores in 2010 173. According to Defendants’ 2010 E EO-1 reports, out of a total em ployment of 8,839 employees in 52 retail stores, 6,820 (77.2%) employees were sales employees. 174. According to Defendants’ 2010 EE O-1 reports, out of 6,820 sales em ployees in Defendants’ 52 retail stores, only 298 (4.4%) were Black. 175. According to Defendants’ 2010 EE O-1 reports, 45 (86.5%) of Defenda nts’ 52 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales em ployees in the co unty in whic h the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 189 employees, 141 (74.6%) were sales employees and of t hose 141 sales em ployees, not one was Black, compared to a represen tation rate of 2. 3% Black s ales employees in th e county. b. Defendants’ Auburn, New York, store, where out of 139 employees, 115 (82.7%) were sales em ployees, and of those 115 sales employees, not one was Black, compared to a represen tation rate of .6% Black sales em ployees in the county.
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c. Defendants’ Auburn Hills, Michigan, store, where out of 156 em ployees, 118 (75.6%) were sales em ployees, and out those 118 sales em ployees, only one (.8%) was Black, compared to a repr esentation rate of 11.5 % Black sales employees in the county. d. Defendants’ Bolingbrook, Illinois, st ore, where out of 170 employee, 136 (80%) were sales em ployees, and out of those 136 sales employees, only eight (5.9%) were Black, compared to a repr esentation rate of 7.2% Black sales employees in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 173 em ployees, 140 (80.9%) were sales employees, and out of those 140 sales employees, only 12 (8.6%) were Black, compared to a repr esentation rate of 24.7% Black sales employees in the county. f. Defendants’ Branson, Missouri, stor e, where out of 105 em ployees, 86 (81.9%) were sales employ ees, and of those 86 sale s employees, not one was Black, compared to a represen tation rate of .1% Black sales em ployees in the county. g. Defendants’ Broken Arrow, Oklahom a, store, where out of 215 employees, 167 (77.7%) were sales em ployees, and out of those 167 sales employees, only two (1.2%) were Black, com pared to a represen tation rate of 5.9% Black sales employees in the county. h. Defendants’ Cincinnati, Ohio, stor e, where out of 208 employees, 175 (84.1%) were sales em ployees, and out of those 175 sales employees, only seven (4%) were Black, co mpared to a repr esentation rate of 10% Black sales employees in the county.
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i. Defendants’ Clarksville, Indiana, store, where out of 234 employees, 184 (78.6%) were sales em ployees, and of those 184 sales employees, not one was Black, compared to a represen tation rate of 4. 7% Black s ales employees in th e county. j. Defendants’ Columbia, Missouri, st ore, where out of 98 e mployees, 71 (72.4%) were sales employees, and out of those 71 sales em ployees, only two (2.8%) were Black, compared to a repr esentation rate of 4.9% Black sales employees in the county. k. Defendants’ Concord, North Carolina, store, where out of 203 e mployees, 158 (77.8 %) were sales em ployees, and out of those 158 sales em ployees, only nine (5.7%) were Black, com pared to a representation rate of 9.9% Black sales employees in the county. l. Defendants’ Council Bluffs, Iowa, store, where out of 190 employees, 143 (75.3%) were sales em ployees, and of those 143 sales employees, not one was Black, compared to a represen tation rate of 1. 3% Black s ales employees in th e county. m. Defendants’ Dania, F lorida, store, where out of 227 employees, 173 (76.2%) were sales employees, and out of those 173 sales e mployees, only six (3.5%) were Black, compared to a repr esentation rate of 13.8% Black sales employees in the county. n. Defendants’ Denham Springs, Louisi ana, store, where out of 163 employees, 118 (72.4%) were sales em ployees, and out of those 118 sales employees, only two (1.7%) were Black, com pared to a represen tation rate of 5.2% Black sales employees in the county.
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o. Defendants’ Denver, C olorado, store, where out of 206 employees, 159 (77.2%) were sales employees, and out of those 159 sales e mployees, only six (3.8%) were Black, compared to a repr esentation rate of 5.4% Black sales employees in the county. p. Defendants’ Destin, Florida, stor e, where out of 106 employees, 82 (77.4%) were sales em ployees, and out of those 82 sales em ployees, only one (1.2%) was Black, compared to a repr esentation rate of 5.6% Black sales employees in the county. q. Defendants’ Duluth, Georgia, store, where out of 183 employees, 141 (77%) were sales em ployees, and out of those 141 sales employees, only three (2.1%) were Black, compared to a repr esentation rate of 12.5% Black sales employees in the county. r. Defendants’ Foxborough, Massachusetts , store, where out of 190 employees, 130 (68.4%) were sales em ployees, and out those 130 sales employees, only one (.8%) was Black, com pared to a representation rate of 2.8% Black sales employees in the county. s. Defendants’ Ft. Myers, Florida, st ore, where out of 157 e mployees, 120 (76.4%) were sales em ployees, and out of those 120 sales employees, only two (1.7%) were Black, compared to a repr esentation rate of 3.8% Black sales employees in the county. t. Defendants’ Garland, Texas, store, where out of 134 e mployees, 106 (79.1%) were sales em ployees, and out of those 106 sales employees, only three (2.8%) were Black, compared to a repr esentation rate of 11.6% Black sales employees in the county.
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u. Defendants’ Grapevine, Texas, stor e, where out of 290 e mployees, 191 (65.9%) were sales em ployees, and out of those 191 sales employees, only four (2.1%) were Black, compared to a repr esentation rate of 8.2% Black sales employees in the county. v. Defendants’ Gurnee, Illinois, store, where out of 159 e mployees, 129 (81.1%) were sales em ployees, and out of those 129 sales employees, only three (2.3%) were Black, compared to a repr esentation rate of 4.5% Black sales employees in the county. w. Defendants’ Hampton, Virginia, store, where out of 155 employees, 123 (79.4%) were sales employees, and out of those 123 sales em ployees, only 27 (22%) were Black, compared to a repr esentation rate of 41.4% Black sales employees in the county. x. Defendants’ Hanover, Maryland, stor e, where out of 225 employees, 191 (84.9%) were sales em ployees, and out of those 191 sales employees, only eight (4.2%) were Black, compared to a repr esentation rate of 10.6% Black sales employees in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 e mployees, 147 (72.4%) were sales em ployees, and out of those 147 sale s employees, only five (3.4%) were Black, com pared to a representation rate of 7.9% Black sales employees in the county. z. Defendants’ Independence, Missouri, store, where out of 152 e mployees, 122 (79.7%) were sales e mployees, and of those 122 sales e mployees, not one was Black, compared to a representation rate of 10.7% Black sales em ployees in the county.
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aa. Defendants’ Islamorada, Florida, st ore, where out of 57 employees, 46 (80.7%) were sales employees, and of those 46 s ales employees, only one (2.2%) was Black, compared to a representation rate of 4.5% Black sales em ployees in the county. bb. Defendants’ Katy, Texas, store, where out of 120 em ployees, 92 (76.7%) were sales em ployees, and out of thos e 92 sales em ployees, only three (3.3%) were Black, compared to a representation rate of 14.2% Black sales em ployees in the county. cc. Defendants’ Las Vegas, Nevada, stor e, where out of 155 employees, 113 (72.9%) were sales em ployees, and out of those 113 sales employees, only three (2.7%) were Black, compared to a repr esentation rate of 5.9% Black sales employees in the county. dd. Defendants’ Leeds, Alabam a, store, where out of 182 e mployees, 145 (79.7%) were sales em ployees, and out of those 145 sales employees, only eight (5.5%) were Black, compared to a repr esentation rate of 21.5% Black sales employees in the county. ee. Defendants’ Macon, Georgia, store, where out of 155 employees, 127 (81.9%) were sales employees, and out of those 127 sales em ployees, only 28 (22%) were Black, compared to a repr esentation rate of 26.7% Black sales employees in the county. ff. Defendants’ Manteca, California, where out of 225 e mployees, 179 (79.6%) were sales em ployees, and out of those 179 sales employees, only four (2.2%) were Black, com pared to a repr esentation rate of 4% Black sales employees in the county.
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gg. Defendants’ Memphis, Tennessee, store, where out of 136 employees, 105 (77.2%) were sales employees, and out of those 105 sales e mployees, only six (5.7%) were Black, compared to a repr esentation rate of 27.6% Black sales employees in the county. hh. Defendants’ Mesa, Arizona, store, where out of 154 e mployees, 118 (76.6%) were sales em ployees, and out of those 118 sales employees, only two (1.7%) were Black, compared to a repr esentation rate of 2.6% Black sales employees in the county. ii. Defendants’ Miami, Florida, store, where out of 124 e mployees, 91 (73.4%) were sales em ployees, and out of those 91 sales em ployees, only one (1.1%) was Black, compared to a repr esentation rate of 10.3% Black sales employees in the county. jj. Defendants’ Nashville, Tennessee, store, where out of 180 employees, 138 (76.7%) were sales employees, and out those 138 sales employees, only one (.7%) was Black, compared to a representation rate of 12.1% Black sales em ployees in the county. kk. Defendants’ Oklahoma City, Okla homa, store, where out of 152 employees, 114 (75%) were sales e mployees, and out of those 114 sales employees, only two (1.8%) were Black, com pared to a represen tation rate of 8.4% Black sales employees in the county. ll. Defendants’ Olathe, Kansas, store, where out of 134 employees, 101 (75.4%) were sales em ployees, and out of those 101 sales employees, only three (3%) were Black, compared to a repr esentation rate of 3.7% Black sales employees in the county.
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mm. Defendants’ Orlando, F lorida, store, where out of 205 employees, 155 (75.6%) were sales employees, and out of those 155 sales em ployees, only 11 (7.1%) were Black, compared to a repr esentation rate of 9.6% Black sales employees in the county. nn. Defendants’ Pearl, Mississippi, st ore, where out of 149 employees, 96 (64.4%) were sales em ployees, and out of those 96 sales employees, only seven (7.3%) were Black, compared to a repr esentation rate of 15.4% Black sales employees in the county. oo. Defendants’ Prattville, Alabam a, store, where out of 130 em ployees, 95 (73.1%) were sales em ployees, and out of those 95 sales employees, only seven (7.4%) were Black, compared to a repr esentation rate of 10.4% Black sales employees in the county. pp. Defendants’ Rossford, Ohio, store, where out of 167 e mployees, 125 (74.9%) were sales employees, and out those 125 sales employees, only one (.8%) was Black, compared to a representation rate of 1.9% Black sales em ployees in the county. qq. Defendants’ San Antonio, Texas, stor e, where out of 192 employees, 149 (77.6%) were sales employees, and out those 149 sales employees, only one (.7%) was Black, compared to a representation rate of 5.2% Black sales em ployees in the county. rr. Defendants’ Savannah, Geor gia, store, where out of 113 employees, 84 (74.3%) were sales em ployees, and out of those 84 sales e mployees, only 18 (21.4%) were Black, com pared to a repr esentation rate of 28.3% Black sales employees in the county.
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ss. Defendants’ Spanish Fort, Alabam a, store, where out of 192 e mployees,

157 (81.8%) were sales em ployees, and out of those 157 sale s employees, only

nine (5.7%) were Black, com pared to a representation rate of 7% Bl ack sales

employees in the county.

176. Comparing the num ber of Black sale s employees employed by Defendants (as

specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of

Black sales employees in the county in which each store is located (as provided for in the Census

2000 Special EEO file) indicates that Defenda nts had a net shortfall of 321 Black sales

employees in 2010.

DEFENDANTS HAVE DENIED EMPLOYMENT TO BLACK APPLICANTS AT STORES NATIONWIDE

177. Plaintiff re-alleges and incorporates by re ference paragraphs 1 to176 above as if

set forth fully herein.

178. As discussed in paragraphs 179 to

361 below, Defe ndants have denied

employment to at least hundreds of individual Black applicants based on their race including, but

not limited to, the individuals listed below, and all persons in like or related circumstances. The

individuals were denied em ployment based on their race at num erous of Defendants’ stores and

from 2005 or earlier to the present.

179. Dominique Terry is Black. He had almost ten years of retail exp erience and

fishing experience when he applied in person at the Hampton, Virginia store in 2009. W hile at

the store waiting for an interview, an em ployee approached him and stated “niggers aren’t

allowed to work here.” Terry also applied at the Gurnee, Illinois, store in 2010 and was told by a

Human Resources employee that they would get back to him. Defendants never hired Terry.

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180. Tristan Moore is Black. Moore had expe rience as an ass istant manager at WalMart and at a portrait studio, in addition to hunting, fishing, a nd camping experience when he applied to the Katy, Texas stor e around November 2006 after seei ng a “help wanted” sign in the window. After subm itting his ap plication, Moore followed up in person at the sto re. An employee told him that his application would re main in De fendants’ system for a fe w months and that they would call him if they needed hi m. Despite the “help wanted” sign remaining in the store window after he applied, Defendants never contacted or hired Moore. He applied again at the Katy store around June 2007 by submitting his application to a manager who told h im he would review it and call him for an interview. Moore was never contacted or hired by Defendants. Moore had previously applied at the Katy store in 2002, also after seeing a “help wanted” sign in th e store window. When he submitted his application then, the Sto re Human Resources Manager told him that someone would call Moore if he wa s needed. Moore did not receive a call back from Defendants at that time either.
181. Byron Keels is Black. He has been a superviso r for 15 years at his current job , and had 20 years of boating experience and 50 years of fishing experience when he applied at the Manteca, California store around the time it opened in the fall of 2008. Keels was interviewed on the spot at a job fair, and was told that someone would be in to uch with him about his application. Keels was never contacted or hired by Defendants.
182. Norris Pete is Black. Pete had a business m anagement degree, and had worked in retail throughout co llege and high school. He is also an avid fisherm an. In early 2010, Pete applied for a job at the Pearland, Texas store after an employee told him that the store was hiring. He followed up on his application twice while shopping at the store a nd was told that all positions had been filled. However, another employee told him at the time that the store was still hiring. Defendants never hired Pete.
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183. Victor Harvey is Black. Harvey a pplied at the Macon, G eorgia store around December 2006. His job applicatio n with Defendants listed stocking experien ce at Kohl’s an d Piggly Wiggly, as well as hunting and fishing experience. He was called to take a “work-ready” test and he scored well. De fendants performed a background ch eck on Harvey, w hich he was informed came out clear. Despite his subsequent calls and in-person visits to follow up on his application, and despite his ha ving seemingly cleared all p re-employment hurdles, Harvey was not offered a job by Defendants.
184. Tekarra Jordan is Black. Jordan had cas hier experience with three different employers when she applied at the Savannah, Georgia store m ultiple times, including in November 2006. She applied at the same time as a White friend, Brittney Williams. Defendants offered a job to Williams, but never interviewed or hired Jordan.
185. Vanessa Burton is B lack. She had m any years experience working in custom er service. Additionally, she owned a boat, and did a lot of boating, fishin g, hunting, and golfing. In late 2009, Burton applied to the Pearland, Texas store. Defendants did not hire her.
186. Kenn Bradshaw is Black. Bradshaw app lied to the Concord, North Carolina store around 2008 after seeing a hiring sign in the st ore window. Bradshaw followed up on his application in person by asking to speak to a manager. An e mployee told him that all the positions at the store had been filled and they were not hiring anymore. When Bradshaw left the store that day, he noticed that the hiring sign was still in the window. Defendants never hired Bradshaw.
187. William Hudgins is Black. Hudgins had a college degree and many years of retail experience when he applied to the K aty, Texas store in late 2009 after seeing a hiring sign in the window of the store. He also has extensive knowledge about guns. De fendants did not hire Hudgins.
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188. Marty Blame is Black. Blam e had several years of human r esources experience with a major corporation when he applied tw ice in 2011 for a Store Hum an Resources Manager position at the Prattville, Alabama store. Defendants did interview or hire Blame.
189. John Kenneth Harris is Black. He applied twice at Defendants’ Katy, Texas store. He served four years in the United States Army. On an application submitted in March 2 005, Harris listed his over 20 years of experience in deer hunti ng, small game hunting, and bass fishing, as well as 12 years of salt water fishi ng experience. Harris frequently shopped at the Katy store and had never seen a Black employee there. Defendants never hired Harris.
190. Mary Barnett is Black. She applied to the Grapevine, Texas store in April 2005. On her job application, Barnett listed her previous cashier and sales associate experience with multiple retailers, as w ell as h er certification to operate a forklift. Def endants interviewed Barnett. When she followed up on her applica tion, she was told that she was not sufficiently qualified for a job with Defendants.
191. Talejah Arrington is Black. She applied for a position at the Savannah, Georgia, store in January 2005. Defendants did not hire Arrington.
192. Yolanda Allen is Black. She applied at the Bossier City, Louisian a store in December 2006. On her application, she listed fi ve years of experience at W al-Mart, which included customer service, sales, greeting, and stocking. She also listed her hunting, fishing, and boating experience. She attem pted to follow up on her application by going to the store, but no one would speak to her about her application. On later trips to the store, Allen saw that new, White employees had been hired. Defendants did not hire Allen.
193. Nikaye Donastorg is Black. She had experience working as an executive assistant, accounts receivable m anager, and a unit secretary when she applied for an Administrative Assistant positi on at the Orlando, Florida st ore in January 2008. She listed
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experience in several outdoor activities on her application. During her interview, the interviewer commented that she had thought Do nastorg was French and told Donastorg that she was sorry she had called her in because th ey typically hire from within the store. At the tim e, Donastorg saw that there were other people waiting to be interviewed. Dona storg saw only one Black employee at the store. Defendants did not hire Donastorg.
194. Audrieta Edwards is Black. She had re tail experience as a sales as sociate and stocker at Gym boree, Target, and Children’s Place when she app lied to the Orlando, Florid a store in July 2008. She also had fishing experience. Edwards h eard from an employee that the store was hiring for stocker positions, but she was told by a Human Resources employee that the store was not hiring when she turned in her app lication. The sam e employee also told her the store was “prejudiced” because Blacks were not hired to work on the sales floor where customers might see them , although som e were placed in st ocking positions at the back o f the store. Defendants did not hire Edwards.
195. Terry Donner is Black. He applied multiple times to both the Columbia, Missouri store and the Springfield, Misso uri store, around 2007 and 2008. He is the Hum an Resources Director for his current em ployer, and was s eeking either Hum an Resources or distribution positions with Defendants. Despite his approxim ately 30 years of hunting and fishing experience, he has never even received a call-back from Defendants after any of his applications. When he applied on-line, he listed his race as Black in response to the voluntary EEO information questions. Defendants never hired Donner.
196. Tamela Bellamy is Black. She applied to the Katy, Texas st ore in June 2005. Bellamy was not hired by Defendants.
197. Suran Banargent is Black. He applied to the Savannah, Geor gia in March 2006. Banargent was not hired by Defendants.
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198. Fletcher Batts is Bla ck. Batts h ad visual managerial experience and other supervisory experience in retail when he app lied online in December 2005 for a Visual Manager position at the Macon, Georgia location. In January 2006, Batts was interviewed by a Hum an Resources Manager and a department manager. He was not hired by Defendants.
199. Lige Brisby is Black. He applied twice at the Independence, Missouri store around 2007. He was not contacted or hired by Defendants. In 2010, af ter relocating to the Houston area, he spoke with a manager at the Pearland, Texas store concerning potential employment, but the m anager failed to follo w up and provide him with information about available jobs. Defendants did not hire Brisby.
200. LaTonya Anderson is Black. She applied to the Pearl, Mississippi store in late 2007. She com pleted a written app lication at the store, and submitted it to an employee. Sh e also completed a second application around the same time, which she gave to an employee at the store. Although Anderson had reta il experience and was able to work a flexible schedule, she was never contacted or hired by Defendants. Anderson noticed that the v ast majority of employees at the store were White.
201. Thomas Davis is Black. Around January 2006, he applied to the Savannah, Georgia store after being directed there by the local state unemployment office. While applying directly at the store, Davis perceived that he was treated in a dem eaning fashion. For exam ple, Davis was made to wait two hours before being provided with an application by an em ployee. During this tim e, Davis observed that unlike ot her nearby retail stores with which he was familiar, Defendants’ workforce was predominately White. After submitting his application to Defendants’ representative, Da vis was given an Orion test, which he com pleted on-site. Defendants’ never provided Davis with the resu lts of the test, nor was he contacted for an interview. Davis submitted a se cond application to the S avannah store between the spring of
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2006 and the fall of 2007. He received no response to that application as well. Defendants never

hired Davis.

202. Sandra Brown is Black. She applied for a job at the Savannah, Georgia store in

about the fall of 2005 and again around Februa ry 2006. Defendants never contacted Brown

regarding her 2005 application. Following her 2006 application, Brown was interviewed at the

Savannah store for a Custom er Service position by a Human Resources employee. She was not

asked about her outdoor experience, but was told that the store was currently hiring for all shifts.

Brown was given Orion tests following her interview. The test results were never discussed with

her and she did not receive a job offer. Defendants never hired Brown.

203. Nikia Lewis is Black. She applied to the Macon, Georgia store around March

2006 and was interviewed at a job fair. Lewis was never called for a second interview and was

never hired by Defendants.

204. Latasia Blige is Black. She applie d to the Savannah, Georgia store around

September 2006. Blige learned of the job opening by reviewing a list of av ailable jobs at the

customer service counter in the mall where the store is located. Despite the posted openings and

her two years of experience in cu stomer service, Blige was not contac ted for an interv iew or

hired. During multiple visits to the store, Blig e observed that the great majority of employees at

the store were White.

205. Kwabena Ababio is Black. He applie d to the Savannah, Georgia store around

September 2006, and again around October 2006.

When he first applied, Ababio told

Defendants that he had tent camping, freshwater fishing, and hiking experience. Abadio also had

completed some college and speaks five languages. In response to his first application, he was

informed that he d id not m eet Defendants’ hiring criteria. Upon subm itting his second

application in October 2006, Ababio was interviewed by a Hum an Resources employee and then

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a department manager. He also completed an Orion test and a drug screen. Again, Ababio was informed that he did not meet Defendants’ criteria for hire.
206. Porsha Savage is Black. Savage had experience in freshwater and salt water fishing when she applied to the Hampton, Virginia store in May 2006. Sh e was not interviewed or hired by Defendants.
207. Tiara Blackshear is Black. Black shear had retail experien ce at Toys R Us and was employed at W al-Mart when she applied at the Katy store in July 2006. Blackshear was called in to a room with about five to six other applicants to take a personality test. Among these applicants, Blackshear was the on ly Black and the only one not sent for a drug test. Blackshear observed that she was the only Black among all the em ployees and applicants she saw at the store that day. Defendants did not hire Blackshear.
208. Ikiya Celestine-Glover, also known as Ikiy a Harris, is Black. She applied at the Macon, Georgia store in about October 2006. She was interviewed a nd was given an Orion test. She was not contacted or hired by Defendants.
209. LaVita Childs is Black. She had cashier exp erience when she applied for a cashier position at the Macon, Georgia store at a job fair in August 2006. Childs was interviewed at the job fair, but was not contac ted by De fendants despite her m any attempts to determine the status of her application. She applied again in 2010 or 2011, but was not contacted by Defendants. Defendants did not hire Childs.
210. Sharon Clements is Black. She had experi ence as a cashier wh en she applied to the Macon, Georgia store in August 2006 at a job fa ir. She was interviewed at the job fair, but never heard back from Defendants. She applied again about six to 12 months later, but was not contacted by Defendants. Defendants did not hire Clements.
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211. Kecia Coleman is Black. She applied to the Macon, Georgia store in Nove mber

2006. W hile at the store, Coleman observed th at a m anager was more helpful to W hite

applicants than she had been to Colem an. Wh en Coleman called to c heck the sta tus of her

application, she was told they were not hiring at the time. She applied again about 4 to 6 m onths

later, but she was not contacted or hired by Defendants.

212. Adrian Dennis is Black. Dennis had expe rience as a cook and stocker when he

applied to the Macon, Georgia store in November 2006. He called to check the status of his

application and was to ld the store was still rev iewing applications. He was not interviewed or

hired by Defendants.

213. Leroy Heath is Black. He had extensive supervisory experience when he applied

to the Macon, Georgia store at a job fair

in August 2006. At the job fair, a com pany

representative told him he had good qualifications and experience. He was sent to the store to

complete and submit his application. Defendants did not hire Heath.

214. Valentina Holloway-Bailey is Black. Hollo way-Bailey had exper ience as a

cashier and stocker when she applied to the Macon, Georgia store in September 2006. When she

called to check the status of her application, she wa s told that the store had com pleted its hiring.

Around 2007, Bailey su bmitted an online app lication and was interviewed. Defendants did no t

hire Holloway-Bailey.

215. Dexter Strange is Black. He had fire arm, hunting, and fishing experience when

he applied to the Pearl, Mississippi store in September 2007. He spoke to a Hum an Resources

employee about how to get a job and called se veral times to check on the status of his

application. He was told that he would be contacte d if he was selected for an interview. Strange

was never contacted or hired by Defendants.

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216. Clarence White, Jr. is Black. He applied to the Bossier City, Louisiana store in October 2005. White was not interviewed or hired.
217. Renata Valadez is Black. She had cashier exp erience when she applied to the Bolingbrook, Illinois store in Marc h 2008 and again later that year . Valadez was not hired by Defendants.
218. Ciera Royston is Black. She applied to the Bolingbrook, Illinois store in September 2008. She called the store to check on the status of her application, but was never contacted or hired by Defendants.
219. O’Darrell Howard is Black. He applied to the Macon, Georgi a store in October 2006 by submitting an application at the store. He was not contacted by Defendants. He applied again and contacted Defendants about being inte rviewed, but received no response. De fendants did not hire Howard.
220. Sandra Howell is Black. She applied to the Macon, Georgia store in N ovember 2006. When she called about the st atus of her applica tion, she was told th at the store was not hiring. Defendants did not contact or hire Howell.
221. Mary Howell is Black. She applied to the Macon, Georgia store in Novem ber 2006. She was told sh e would be contacted wh en she sub mitted her application, but was not contacted or hired by Defendants.
222. Ramon Kizer is Black. In August 2006, Ki zer applied to the Savannah, Georgia store. He stopped by the store and called several tim es to check on the status of his application. He was not contacted or hired by Defendants.
223. Sabrina Gates is Black. She applied to the Savannah, Georgia store in August 2006. She had previously worked for Defendants, but left in 2005 after twice being passed over for promotion. When she reapplied, she was sent a rejection letter. Desp ite having satisfactory
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job performance during her first job with Defendants, Gates was not hired after her August 2006 application.
224. Gary Mincey is Black. He applied in person to the Savannah, Georgia store in May 2007. Mincey called a few tim es to chec k on the status of his application, but was not contacted back. He applied again and was not contacted or hired by Defendants.
225. Lucy Brown is Black. Brown had experien ce in saltwater fishing and freshwater fishing, as well as experience in backpacki ng, rock clim bing, hiking, rappelling, and tent camping when she applied to the Savannah, Georgia store in January 2006. She was not interviewed or hired by Defendants.
226. Keiwonda Tennerson is Black. She app lied to the Savannah, Georgia store around February 2006. Tennerson was not hired by Defendants.
227. Carlos Williams is Black. He applied at the Savannah, Georgia store around May 2007. He spoke to a manager about a boat detailer position, was interviewed and told he met the qualifications for the position. He called to follo w up regarding his application. Defendants did not hire Williams.
228. John Wilson is Black. He applied to the Savannah, Georgia store around January 2006 based on a job listing he saw at the security desk at the mall where the store is located. He called about the status of his application and was told it was being reviewed. Defendants did not hire Wilson.
229. LaRue Brown is Black. Brown had alm ost 10 years of experience with Wal-Mart when she applied to the Savannah, Georgia store in January 2007. Brown also had loss prevention experience at Dillard ’s and years of security experi ence at th e mall in which th e Savannah store is located. She was interviewed for a Loss Prevention position. The interviewer
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offered her a position, and told he r to call back on Friday. When she called back on Friday, she was advised that the position was no longer open. Defendants retracted her job offer.
230. Helen Marie Carter is Blac k. Carter had over 8 years of retail exp erience with Mervyn’s, Kohl’s, and Target wh en she applied at the Bossier City, Louisiana location in December 2005. She had previou sly applied w hen the store opened around November 2003. Carter was not hired by Defendants.
231. Nathaniel Carter is Bla ck. Carter had retail experience at Macy’s and loss prevention experience at Marshall’s and Lo we’s when he applied twice for em ployment, including to the Katy, Texas store in October 2005. Defendants did not hire Carter.
232. Kendall Dean is Black. He applied at the Springfield, Missouri location around September 2011 and again in January 2012. Dean followed up on his applications by telephone, but was not contacted by Defendants. Defendants did not hire Dean.
233. Cheryl Fields is Black. Fields h as an MBA. She applied at the Olathe, Kansas store around the tim e of its opening in Februa ry 2007 by dropping off a resum e in person. She also applied online for a manager position in 2007 or 2008 when she saw a “now hiring” sign at the store. She was not hired by Defendants.
234. Walter Hargrove, Jr. is Black. Hargrove listed experience in bass fishing, trout fishing, and salt water fishing when he applie d at the Katy, Texas store in March 2007. Hargrove was not hired by Defendants.
235. Wayne Henderson is Black. He had forklift experience. He applied tw ice to the Macon location, including in Octobe r 2006. H e inquired about the status of his application by phone and in person and was told that he would be called when a job becam e available. He was not hired by Defendants.
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236. Tishanna Hollins is Black. She applied at th e Katy, Tex as location in Ma rch 2005. She was not hired by Defendants.
237. Jakara Hood is Black. She had custom er service experience when she applied at the Macon, Georgia location in November 2006. Hood was not hired by Defendants.
238. Jerrell Howard, Jr. is Black. He had customer service experience when he applied at the Macon, Georgia store a bout three tim es: in June and Septem ber 2006 and in 2010. In 2006, Howard was interviewed but not hired. Around the sam e time, Defendants hired a W hite acquaintance of Howard who had similar skills as Howard.
239. Ebony Hemphill is Black. She had retail exp erience when she applied to th e Pearland, Texas store in September 2007. She was given a screening test and interviewed by an employee who advised her that she would not be offe red more than one shift per month if hired. Defendants did not hire Hemphill.
240. LaKenya Hutchings is Black. She applie d at the Macon, Georgia location in January 2007 and listed fishing as a hobby. She was not interviewed or hired by Defendants at that time. She applied again in 2012, m onths after this lawsuit was filed, and was hired in May 2012.
241. Rachel Guidry is Black. She had experience as a cash ier, stocker, and fligh t attendant when she sub mitted her application o nline and handed in a copy at the Bossier City , Louisiana store in the early 2011. She called to inquire about her application and was told that it would be pulled out for review but she received no further response. Defendants did not hire Guidry.
242. LaSedrich Horton is Black. Horton had e xperience as a Project Officer with the Mississippi Department of Wildlife and experience in archery, bow hunting, deer hunting, and
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small game hunting when she applied in person at the Pearl, Mississippi store in October 2007. Horton was not hired by Defendants.
243. Anthony Gloston is Black. Gloston listed his Peace Officer certification and work experience in construction and stor e management as well as his work as a po lice officer and a navy sailor when he applied to the Macon, Georgi a store in March 2007. He also listed water sports and fishing as so me of his hobbies in a ddition to h is experience in about nine other outdoor activities. He applied twice, and was told that his application was being reviewed when he inquired about the status of it, but he never heard back from Defendants. Defendants did not hire Gloston.
244. Sharon Gloston is Black. Gloston listed her secretarial educa tion, certificate in computer assisted training, and her work experi ence as a quality assurance clerk and auditor on her application when sh e applied to the Macon, Georgia st ore in March 2007. She also listed fishing, swimming, and camping as her hobbies in addition to her experi ence in four outdoor activities. She called to inquire about the status of her applic ation and was told it was being reviewed but never heard anything again. W hen she submitted her application at the store, she observed that all of the cashiers were White and she saw no minority employees. Defendants did not hire Gloston.
245. Afric Simon is Bla ck. He applied to th e Pearl, Mississippi store in November 2007. He called to check on the status of his application and was told to check back. Simon was not contacted or hired by Defendants.
246. Corvé Smith is Black. He had retail and rock-clim bing experience when he applied to the Bolingbrook, Illinoi s store twice in 2007. He follo wed up on his applications and was told someone would call him. He was not contacted or hired by Defendants.
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247. Martel Rudd is Black. He had sales and cashier experience as well as recreational fishing experience when he applied to the Bolingbrook, Illinois store in the spring of 2007 after a White friend of his suggested he apply and told him that it was easy to get a job at the store. He was not contacted or hired by Defendants.
248. Melinda Slaton is Black. She had 16 y ears of cashier experien ce when she applied to the Macon, Georgia store in early 2007. She followed up on he r application several times and each time was told the store was not hiring. Slaton was not hired by Defendants.
249. Nicole Griffith is Black. She h ad cashier and management experience when she applied to the Pearl, Mississippi store in May 2006. She was asked about her cashier experience and was told that she would be contacted. She never was contacted, including after she called to inquire about her application on multiple occasions. Griffith was not hired by Defendants.
250. Cheryl Andrews is Black. She had year s of retail experience and knowledge of fishing when she attended a job fair in August 2006 and submitted an application for the planned Macon, Georgia store. Andrews was interviewed, but she was not hired by Defendants.
251. Willie Andrews is Blac k. He had over ten years experience as a retail m anager and had extensive know ledge of boating, fishing , and hunting when he applied for a position at the planned Macon, Georgia store in August 2006. When he inquired about his application, he was told that there were no jobs available. Andrews was not hired by Defendants.
252. Joseph Brooks, Jr. is Black. He ha d significant knowledge about outdoor recreational activities when he applied to the Macon, Georgia st ore in November 2006. He was not hired by Defendants.
253. Reginald Celestine is Black. Ce lestine noted on his application that he had extensive managerial, retail, and custom er service experience as well as specialized knowledge
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of hunting, fishing, and camping when he applied to the Katy, Texas store in February 2005. He was not hired by Defendants.
254. David Fox, Jr., is Black. In 2009 and 2010, he applied at the Ham pton, Virginia store. An employee at the store told Fox’s unc le that the store was hiring, which led Fox to apply. Fox has fishing experience and has visited the store frequently. Defendants did not hire Fox.
255. Kareena Calhoun is Black. She applied at the Pearl, Mississi ppi store twice in September 2007. Her first application was a ha rd copy and around ten days later she applied online. Both tim es she was adm inistered the Orion test, and both ti mes Calhoun authorized Defendants to conduct a pre-em ployment background screening. She never heard back from Defendants and was not hired.
256. Tavasha Tonsil is Black. She had four y ears of experience in shipping, receiving, and stocking while serving in the U.S. Army when she sub mitted an online app lication for the Savannah, Georgia store in May 2007. Defendants did not hire Tonsil.
257. Antoine Harris-Singleton is Black. He app lied for a job at the Pearl, Mississ ippi store three tim es in May 2006. Although the store had a sign in the window advertising job openings, Harris-Singleton was told by Custom er Service staff that there were no job openings. When he called about the status of his application, he was told that they would call him when his application was pulled f or review. When Harris- Singleton made a trip to the store around that time, he was told by a W hite employee that the White employee had applied for a job the day before and had been hired on the spot. Harris -Singleton did not see any Black employees during his visits to the store. He was not contacted or hired by Defendants.
258. Nora McGill is Black. She had years of customer service experience, fishing experience, and had studied Busi ness Administration when she appl ied at the Pearl, Mississipp i
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location in May 2007 and at one other tim e between 2006 and 2008. She called to follow up on her application and followed up also with at least one visit to the store. She initially was told that her application was under review but was then to ld that the position had been filled. Defendants did not hire McGill.
259. Dandrick Cornelius is Black. I n January 2006, Cornelius applied for a cook/porter position at the Bossier City, Louisiana store. When Cornelius called to follow up on his application, he was told to reapp ly. In May 2006, he subm itted a second application for a cook/porter job at the B ossier City store. He called several times to follow up and again he was told that he needed to reapply. He was never hired by Defendants.
260. Ancetha Dudley is Black. She had about three years of stocking and cashier experience when she applied to the Macon, Ge orgia store in December 2006. Dudley inquired about her application several times and was told that it had not been reviewed. She was not hired by Defendants.
261. Shanada Patrick is Black. She had cashier and custom er service experience when she applied to the Pearl, Miss issippi store in September 2006. She called m ultiple times to inquire about her application and wa s told each time that her application had not been reviewed. Defendants did not hire Patrick.
262. Carlos Antonio Glover is Black. He had 4 years of experience in retail warehouse distribution when he applied for the first tim e at the Macon, Georgia store in September 2006. He was not hired by Defendants. In late 2010, Glover applied a second tim e for a job at the Macon store. Again, he was not hired by Defendants.
263. Lorenzo Partman is Black. He had deer hunting experience wh en he applied to the Bossier City, Louisiana store in late 2005 and again, online, in 2007. Defendants did not hire Partman.
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264. LaTroy West is Black. He applied at th e Springfield, Missouri store four tim es from 2010 to 2011. Each tim e he applied, W est took a skills test on the computer and scored 100%. He also was interviewed. He called to inquire about the status of his application after the interviews. During his visits to the store, West never saw a Black employee. West was not hired by Defendants.
265. Shamere James is Black. She applied several times in 2006 and 2007 to the Macon, Georgia store for a cashier job. At the ti me of her applications, she had relevant work experience. James was never hired by Defendants.
266. Anne Jenkins is Black. Som etime in 2006, before the opening of the Macon, Georgia store, she attended a job fa ir for the store and submitted an application. She was not hired. In October 2006, Jenkins applied again online for a job at the Macon store. She was interviewed, but she was not hired by Defendants.
267. Danyell Johnson is Black. Johnson had si gnificant retail warehouse/distribution experience as well as boating and camping experience when he applied for a job at the Macon, Georgia store in 2006 and 2007. He was not hired by Defendants.
268. Leslie Johnson is Black. In A ugust 2006, Johnson applied for and was interviewed for a position at the Macon, Georgia store. She had relevant work experience but was not hired by Defendants.
269. Adorn Jones is Black. Jones had signifi cant cashier experience when she applied to the Katy, Texas store in Septem ber 2005. She was interviewed by a m anager who concluded the interview by telling her that “we're not sure you fit in.” Jones was not hired by Defendants.
270. Orlando Franklin is Black. He worked at Defendants’ Denver, Colorado store from November 2010 to Decem ber 2010 as a PACE employee. Franklin was terminated right before New Year’s Day even though he request ed a permanent position and while White PACE
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employees were hired for per manent positions. His supervisor told him to apply for a boat detailing position, which he applied for, but he was never contacted about his application. He called to inquire about the position and was told they were not hiring. To Franklin’s observation, almost all of the staff at the store was W hite. Franklin was not hired as a perm anent employee with Defendants.
271. Cecil Jordan, Sr. is Black. He applie d to the Macon, Georgia store in August 2006. A few weeks later, an em ployee contacted him to say that his application had been denied but that he could return to the store to reapply. He then reapplied sometime later in 2006. He was interviewed by a m anager who appeared uninte rested in what Jordan had to say about his qualifications and who lef t the interview midway for a lengthy period of time without excusing himself. Jordan is highly skilled in hunting and fishing and had work experience selling sporting goods as well as taxidermy experien ce. During his interview, the interviewer had Jordan take a highly specialized archery skills tes t that requ ired him to nam e and explain specific archery equipment. The interviewer also q uizzed him about Defendants’ po licies even tho ugh he had never worked for Defendants. Jordan was not hired by Defendants.
272. Jshell King is Black. She had relevant work experience and experience in fishing, boating, and camping when she applied to the M acon, Georgia store in October 2006. King was not hired by Defendants. A White friend of hers, however, also applied for a job and was hired.
273. Christopher Lamar is Black. In February 2007, he applied to the Macon, Georgia store. At the time, he had experience working in retail and stocking. Shortly after submitting his application, he called the sto re to follow up a nd was told that the store did not have his application. He called again and once m ore he was told that they did not have his application. Lamar was never hired by Defendants.
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274. Oscar Pope is Black. He had about 20 years experience as a m anager and experience in hunting and fishing when he applied and was interview ed for a job at the Pearl, Mississippi store in May 2007. He knew that the store was hiring fr om a Sales Manager. Pope followed up on his application seve ral times but was never contacted or hired by Defendants. A White former co-worker who had applied for a job at the Pearl store a few days before Pope was hired.
275. Jesse Liggins is Black. Liggi ns first applied for a Sale s Associate position at the Macon, Georgia store at a hiring fair in July 20 06. He was interviewed and received an “A+” rating. He also took a personal ity test that scored him as “above average” on supervisory attitudes. At the time, he worked as a pastor and had relevant retail sa les experience. Despite these qualifications, one of the interviewers attempted to steer him into a lesser paying janitorial position even though he had no janitorial experience. After the fair, he visited the store to speak to a m anager and follow up on his applicati on and was told they were still reviewing applications. He reapplied for a job in Augus t 2006 and after filling out an application and waiting some tim e to speak to a m anager, an employee informed him that no positions were available. He was not hired by Defendants.
276. Charles Miles is Black. Around Novem ber 2005, he applied to the Bossier City, Louisiana store after he saw a he lp wanted sign in the store window. He later spoke to an employee about his application, w ho told him that they were not hiring at the time and that they had not reviewed his application. Miles was not hired by Defendants.
277. Luanda Archer is Black. She attended the job fair at th e Maple White church for the Macon store in summer 2006. After the screening intervie w at the job fair, she was interviewed at the s tore site. Althou gh Archer came away from her second interview believing that she would be hired, Defendants did not hire Archer.
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278. Omoniyi Awontumde is Black. He attended the job fair at the Maple W hite church for the Macon store in sum mer 2006, and he completed an application in August 2006. He took the Orion test, and scored “Average ,” “Above Average,” or “Low Risk” in all categories. After he was inte rviewed, he was to ld that he w ould be called back, but instead he received a letter s tating that he was not qu alified for the position. Defendants did not hire Awontumde.
279. Wayne Black is Black. He applied to the Hanover, Maryland store, around February 2008. Although he had work experien ce, Defendants never contacted him after he submitted his applicatio n. He f ollowed up by cal ling the store, but D efendants did not hire Black.
280. Glenoard Roberson is B lack. In Septem ber 2006, he applied to the Bossier City, Louisiana store. Roberson was not hired by Defendants.
281. Kenneth Robinson is Black. In November 2005, he attended a hiring event for the Katy, Texas store. He was not hired by Defendants.
282. Wanda Williams is Black. In February 2007, Williams applied to the Savannah, Georgia store because she had heard that the store was hiring. She submitted her application to a manager who told her that there were no jobs available. Williams was not hired by Defendants.
283. Rose Wimberly is Black. In mid to late 2006, she applied to the Macon, Georgia store through Defendants’ hiring fair. Wimberly was not hired by Defendants.
284. Fredrick Jones is Black. He applied to the Grapevine, Texas store in January 2007. He called twice to follow up on his applica tion but was never contacted by Defendants. Jones was not hired by Defendants.
285. Eric Kilpatrick is Bla ck. He had significant maintenance experience when he applied at the Katy, Texas store in 2011. He was in terviewed and told that he would also need to
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interview with the General Manager. After he waited, he was told that the General Manager had left for the day. Kilpatrick was not interviewed further and was not hired by Defendants.
286. Oscar Pope is Black. He had relevant work exp erience and significan t outdoor experience when he applied to the Pearl, Mi ssissippi store in 2006 and 2007. He followed up on his applications several times, but he was never contacted or hired by Defendants.
287. Franklyn Little is Black. Little applie d to the Macon, Georgia store in August 2006, October 2006, and again in 2008. On his applications, he listed his extensive experience in fishing, boating, and camping as well as his having a commercial driver’s license. He was given a simple math test on which he scored 100. W hen he called to inquire about his applications, he was told that som eone would call him back, but he was never called back. W hen he later shopped at the store, he saw that some Whites who had applied at the same time he did were now employed by Defendants.
288. Crystal Milburn is Black. She had retail experience when she applied at the Katy, Texas store in June 2005. Milburn was not hired by Defendants.
289. Evan Owens is Black. She applied to the Pearland, Texas store in 2007 and 2008. Owens was interviewed but not hired by Defendants.
290. Clyefer Bass, Jr. is Black. He had expe rience with outdoo r activities when he applied to the Bossier City, L ouisiana store around July 2006. Upon being interview ed, a Store Human Resources Manager told Bass that his application was impressive, and that he intended to place him in the archery section of the s tore. However, Bass never recei ved a call back for a second interview and was never hired by Defendants.
291. Karl Blair is Black. He applied to the Independence, Mi ssouri store around December 2010. A Hum an Resources representa tive called Blair and to ld him that his application was "perf ect" and "exactly what [he] was looking for." When he cam e in for his
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interview the next day, the Hum an Resources representative looked at him and told him the position had been filled. Blair was never hired by Defendants.
292. Johnaca Burnett is Black. She h ad retail exp erience when she app lied to the Macon, Georgia store around July 2005. When Burnett called to follow up about her application, a Human Resource representative told her that she did not meet the qualifications for the job and that the position had been filled. Burnett was never hired by Defendants.
293. Ron Clark is Black. He had loss prevention experience at a large retailer when he applied for a loss prevention position at the D ania, Florida store in 2 008 and again in 2009. Clark was not contacted or hired by Defendants.
294. Kim Dang is Black and also of Asian-Am erican descent. She had extens ive experience in human resources when she applied for a Store Human Resources Manager position in the Denver, Colorado store in March 2009. She was screened by telephone and interviewed in person. Dang was not contacted again or hired by Defendants.
295. Juverlin Douglas is Black. He had exte nsive outdoor experience when he applied to the Macon, Georgia store around July 2007. Douglas was interviewed. Initially, Douglas was told that there were several job openings, but he was never called back for a second interview . Douglas was not hired by Defendants.
296. Vincent London is Black. In Dec ember 2005, he applied to the Bossier City, Louisiana store by asking for an application at the store. H e informed the employee who took his application that he had re tail experience. The em ployee told London that someone would contact him, but he was not contacted or hired by Defendants.
297. Terry Hughes is Black. He applied to the Macon, Georgia store while attending a job fair around March 2006. He was interviewed tw ice at the job fair. Hughes was not hired by Defendants.
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298. Shar-Nell Jordan is Black. She attended a job fair in East P eoria, Illinois where Defendants were a f eatured recruiter. She app lied for a position at the East Peoria store, which was scheduled to open shortly after the job fair. Jordan was interviewed at the job f air and then again a second time a few weeks later. A Hum an Resources representative told Jordan that she would have a third interview, which was essent ially a background check. However, Jordan was never called back for a third interview and was never hired by Defendants.
299. Chiquetta McCraw is Black. She applied tw ice to the Bossier City, Louisiana store, including in April 2006. McCraw submitted an application to a clerk in the store. She was not interviewed and never heard back from Defendants. McCraw went to the store to check on her application and was told the position was fill ed. She saw only White employees while at the store. Defendants did not hire McCraw.
300. Charlene Sidener is B lack. Sidener had retail management and sales associate experience when she a pplied for managerial positions at the East Pe oria, Illinois store in July 2011. Sidener was interviewed an d her experience was deem ed "exceptional" by the Hum an Resources representative who interviewed her. Nevertheless, Sidener was never called back for a second interview and was not hired by Defendants.
301. Rose McClenden is Black. She had over four years of cas hier experience when she applied at the Pearl, Mississ ippi store in June 2007. After turning in her application, she called every day to follow up. Finally, she was to ld that the store was not hiring anym ore. Defendants did not hire McClenden.
302. Jamian Alexander is Black. He applied to th e Pearl, Mississ ippi store around November 2006. Alexander subm itted both a written application in person at the store and an application online. Alexander had retail experience and hunting a nd fishing experience. W hen Alexander submitted his applicatio n in person, he was br ushed off by store pers onnel who
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appeared disinterested in accepting his application. At this time an employee informed him that every position had been f illed. Ale xander attempted to f ollow up but every tim e he gave his name, the e mployees with whom he spoke told him all position s had been filled. Alexander never saw any Blacks working in the store. Defendants never hired him.
303. Carolyn Reynolds is Black. She had m any years of experience as a custom er service representative when she ap plied twice to the st ore in East Peoria, Illinois in May 2011. She submitted her first applica tion in person in May 2011, which wa s the first day applications were accepted. Reynolds also submitted a second application on-line. She was first in terviewed by two representatives who appeared interested in Reynolds’s resume. She returned for a second interview with a m anager who was curt, sp ent less than five m inutes with her, and appeared disinterested in what Reynolds had to say. The manager did not ask her about her work experience. Defendants did not hire Reynolds.
304. Roderick Alston is Black. He applied in person to the Han over, Maryland store around August 2005. Alston gave th e application to a store em ployee, who told Alston that someone would get back with him about the app lication. Defendants did not contact or hire Alston.
305. James Bullard is Black. He had fishing and hunting experience when he applied to the Bossier City, Lou isiana store in May 200 6. Bullard submitted an application in person. He was not interviewed or contacted by Defendants.
306. Earnest Wright is Black . He applie d to the Bossier City, Louisiana s tore first around September 2006, and several tim es again in 2007. He was never contacted by Defendants. When Wright called to inquire about the stat us of his applicati on, he was told that the position was filled. Defendants did not hire Wright.
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307. Michelle Younger is Black. Younger had 10 years of cashier experience when she applied for a position with Defendants’ new store in East Peoria, Illinois scheduled to open in September 2011. She subm itted her application at a job fair. After waiting a long tim e, she was given a quick interview by an employee. Younger was never ca lled her back for a second interview or offered a job by Defendants.
308. Chantelle Johns is Black. In June 2006, Johns applied to the Bossier City, Louisiana store in resp onse to ad s she saw in a newspap er and on line. She su bmitted her application in person at the st ore and spoke w ith the m anager in charge. She inform ed the manager about her experience as a cashier at a casino, Wal-Mart and Home Depot. Johns was not hired by Defendants.
309. Reginald Johnson is Black. He had retail work experience when he applied to the Macon, Georgia store in December 2006. Johnson submitted his app lication in person at the store, but was not contacted by Defendants. H e later subm itted another application, but again was not contacted by Defendants. Defendants did not hire Johnson.
310. Charles Allen is Black. In fall 2008, he attended a job f air in Bossier City, Louisiana, and learned that Defendants were hiring. Allen had pr eviously applied to Defendants in November 2006. Allen m ade several return trip s to the Bossier store to apply for a job, and was consistently told by e mployees to com e back. Af ter many trips to the store, Allen was finally given an application, which he submitted in 2008. He was never contacted by Defendants despite his attem pts to follow up on his applica tion. Allen was never interviewed or hired by Defendants.
311. Antonio Elzie is Black. Around Nove mber 2006, he applied to the Pearl, Mississippi store, along with his friend Jamian Alexander. Elzie applied both in person and on-
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line. He had retail experience. A manager hurriedly gave Elzie an application, and then tried to

brush him off when he submitted the completed application. Defendants did not hire Elzie.

312. Jeremy Jones is Black. Jones had 6 y ears of sales experience and fishing and

hunting experience when he applied to the San Antonio, Texas store around Septem ber or

October 2011. During his visit to the store

to submit his applica tion, he was treated

condescendingly by White staff, who told him he should apply online. He followed up on his

application by m aking inquiries at the store, but he was not contacted by Defendants for an

interview or otherwise. Jones was not hired by Defendants.

313. Darryl Anthony is Black. He applied to the Macon, Georgia store in Septem ber

2006. Anthony was not interviewed or hired by Defendants.

314. Daniel Winfield is Blac k. W infield had exper ience in r etail sales and r eceiving

when he applied to the Hanover, Maryland store in April 2006. He was never hired by

Defendants.

315. Cathy Pearson Hiley is Black. She applie d to the Macon, Georgia store at a job

fair in August 2006. She had a short interview, but received no further contact from Defendants.

Hiley observed that many Blacks applied at the job fair and believes that none were hired.

316. Darcy Jackson is Black. He had outdoor experience when he applied to the East

Peoria, Illinois store in September 2011 by submitting his application at a job fair. He waited a

long time for a rushed first interview. He was told that he would receive a second interview, but

he never was contacted again by Defendants. Defendants did not hire Jackson.

317. Shawn Gibbs is Black. In summ er 2007 and again in sum mer 2001, he tried to

obtain a position at the Bolingbrook, Illinois store. In 2007, Gibbs was hired as a dishwasher for

the restaurant in the store. He m ade attempts to transfer from the restaurant to a p osition in the

retail store, but his Defendants did not offer him such a job.

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318. Tosha McSweeny is Black. She applied tw ice to the Ham pton, Virginia store. She was not hired by Defendants.
319. Jacqueline Johnson is Black. She app lied in person at the Savannah, Georgia store in November 2006. Johnson later called the st ore to check on the status of her application, but received no response. She was not interviewed or hired by Defendants.
320. Jackquelin Gray is Black. Gray had freshwater fishing experience w hen she applied in person at the Pearl, Mississipp i store in Septem ber 2006. After subm itting her application, Gray called the store three times to check on its status. On the first two occas ions, she was told that Defendants were still going over her application. The third tim e, she was told that the store was not hiring. Defendants did not hire Gray.
321. Ellis Hays is Black. He indicated that he had experien ce in small game hunting and freshwater fishing when he applied in person at the Pearl, Mi ssissippi store in January 2008. Hays was never contacted or hired by Defendants.
322. Sasha Brown is Black. She applie d multiple times to the Savannah, Georgia store, including in May 2006 and late 2007 or early 20 08. Brown subm itted her written application in person, but no one ever contacted her despite her repeated efforts to follow up on the status of her application. The first tim e Brown called she was transferred multiple times and unable to speak to anyone. The next time Brown called she was placed on hold for an extend ed period until she finally hung up. The third tim e Brown called no one answered. Brown saw no Blacks working at the store when she visited it. Defendants did not hire Brown.
323. Latiché Bush-Lane is Black. She has a Bachelor’s Degree and a Master’s Degree. She applied to the Bolingbrook, Illinois store around June 2007. Bush-Lane subm itted a written application in person to a store em ployee. Bush-Lane was interviewed by a m anager, who told
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her that she would be c alled if a position became available as all positions a llegedly had bee n filled. Bush-Lane tried to follow up without success. Defendants did not hire Bush-Lane.
324. Rodrick Chaney applied at least twice to the Macon, Georgi a store including in August 2006 before the store op ened. In his August 2006 appl ication, he listed fishing and camping experience. He asked an employee at the front desk if the store was hiring and was told they were. Chaney the n submitted an applicati on to the e mployee. Chaney never heard f rom anyone so he submitted a second application online. Chaney then calle d the store a couple of times to follow up and was told tha t someone would call him back. He was never contacted or hired by Defendants.
325. Reginald Chisholm is Black. He had re tail experience and hunting and fishing experience when he applied twice to the Concord, North Carolina store. Chisholm worked at the Concord Mills mall where the Defendants’ store is located. The first time Chisholm applied was when an employee to ld him that the store was h iring while he was shoppi ng at the store. The employee gave Chisholm an application, which he filled out and gave back to her. The employee told Chisholm that som eone would call him about his application. After he did not hear from anyone, Chisholm called back to find out the status of his ap plication but was unable to get an an swer. He applied again but again was not contacted. Chisholm was concerned that the store was not calling him back as he never saw any Blacks working there when he shopped at the store. Defendants did not hire Chisholm.
326. Antwan Clark is Black. He observed a large hiring sign posted in the window at the Concord, North Carolina store around 2008 or 2009 and decided to apply. Clark submitted a written application in person at the store, but was told by a manager that the store was not hiring. Clark questioned the response due to the large “ now hiring” sign in the window and was told by the manager that, notwithstanding the sign, the store was not hiring at that tim e. Clark was told
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that he would be contacted when the store wa s hiring. Clark m ade several follow up calls to determine if the store w as hiring and to check th e status of his application. Each tim e Clark called and gave his nam e, he was told that the store was not hiring even though the hiring sign remained in the window. W hen Clark mentioned the sign, a manager told him that the sign was irrelevant and they were not hiring. During his second follow up call, an em ployee informed Clark that the Hum an Resources department was looking though th e applications, but they had not made any decisions. The third tim e Clark called the store he w as put on extended hold before an employee told him that the store ha d reviewed all applica tions and f illed all ope n positions. She also said that he did not qu alify for any position. C lark believed this was not accurate as he had retail expe rience and hunting and fishing experience. Clark was never h ired by Defendants.
327. Jaymie Hughes is Black. She had over 10 years experience as a human resources manager at Wal-Mart w hen she applied on-line for a hum an resources management position at the Katy, Texas store between July and Oct ober 2009. She saw the position posted online with Career Builders. Hughes was interviewed by Br ent Day (Director of Human Resources (Retail)) and Jill Klimas (Regional Human Resources Manager) in October 2009. Du ring this interview, Hughes was told that her qualifications were excelle nt. She also was told that there would be a second interview. Hughes m ade numerous efforts to follow-up about th e second interview, including by going to the store to inquire about the second in terview, but Defe ndants never contacted her about it. When she was at the stor e, Hughes observed that there appeared to be no minority employees. Defendants never hired Hughes, who later secured a Director of Hum an Resources position with another company in Katy, Texas.
328. Bryan Fleming is Black. He applied tw ice to the Savannah, Georgia store. Around 2005, Flem ing submitted a written app lication in person at th e store and attem pted to
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speak to a m anager about it. Fl eming was told that no m anager was available. He asked if the manager would call h im and was told his applic ation would be submitted and that the m anager would decide whether to call F leming. Flem ing made several follow up calls and asked for a manager, who was never available. Flem ing was never contacted. In May 2007, Flem ing applied again and encountered the sam e response. He was never able to speak to a m anager despite his attempts. Fleming was not interviewed or hired by Defendants.
329. Shanetta Gibson is Black. She submitted a written application to the Bossier City, Louisiana store in Septem ber 2006. She aske d to speak to a m anager but none was m ade available. Gibson called back to follow up on her application and was told that they were not hiring. Defendants never hired Gibson.
330. John Irvin is Black. H e had fishing and retail experience when he applied in person at the Macon, Georgia store in Decem ber 2007. Irvin was never called for an interv iew and was not otherwise contacted about his app lication. Irvin attem pted to follow up on his application, but did not succeed in obtaining an interview or a job with Defendants.
331. Geraldine Battle is Black. She subm itted an application in person to th e Macon, Georgia store in December 2006. Battle told the person w ho accepted her application th at she would be willing to accept any position that w as available in the s tore, or at the factory in Macon. She was given a test about plants and shown a film. Battle was never interv iewed or hired by Defendants.
332. Anthony Burts, Jr. is Black. He had hun ting, fishing and m ilitary experience when he applied at the Bossier City , Louisiana store on two occasions b etween 2005 and 2007. The first time he applied, Burts went to a job fair at a hotel. He was interviewed and never heard back from Defendants. He la ter went to the store and sub mitted another application. The who accepted Burts’ app lication informed him that someone would be in touch, but he was not
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contacted. Burts went to the st ore to inquire about the status of his application, but was unsuccessful. He was not hired by Defendants.
333. Ebony Brogdon is Black. She applied for a cashier or sales clerk position at the Bossier City, Louisiana store in June 2006. Her m other, Diane Beck, also Black, applied at the same time as Brogdon. Brogdon and Beck had cashier experience. Brogdon and Beck submitted their applications to a m anager, who did not ask them about their experience or training. Brogdon called weekly to check on the status of their app lications, and also we nt to the store to speak with the m anager. She was never able to speak to the m anager, but was told som eone would call her about their applications. Brogdon and Beck were never called, interviewed or hired by Defendants. Further, during her visi ts to the store, Brogdon never saw any Black employees.
334. Tasheita Brown is Black. She applie d to the Savannah, Georgia store in November 2010. Brown was interviewed by a m anager who told Brown that Defendants were hiring, but that the final deci sion had to be m ade by the Ge neral Manager. Although the manager had told Brown that she was a good candidate who would receive a secon d interview, she was not contacted about a second interview and not offered a job by Defendants.
335. Aggie Glawson is Black. She applied to the Macon, Georgia warehouse/Distribution Center at least twice, including February 2007. She was required to take a test, for which she understood the applicants were to be paid. Glaws on received a letter indicating she passed the test and that someone would call her about filling a position. She never received a call, was never paid for her time taking the test, and was never hired by Defendants.
336. Kareri Irungu is Black. He applied to the Concord, North Carolina store multiple times from 2005 through 2008. Irungu was walking through the mall when he noticed a “Now Hiring” sign so he entered the store and asked for an application. Irung u submitted the written
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application in person at the stor e but had som e difficulty in obt aining the application from an employee even though application forms were ri ght next to the em ployee’s work space. The employee was not cooperative when Irungu inquir ed about the available position. Irungu noted on his application that he had reta il and customer service experience. He re turned to the stor e twice to check on his application but was not offered any assistance, nor was he able to speak to a manager. Defendants never hired Irungu.
337. Carolyn Johnson is Black. She applied to the Bossier City, Louisiana around November 2005 when she went by the nam e Carolyn Thomas. She filled out an application and submitted it to an employee who told her they were not hiring. Defendants never hired Johnson.
338. Carolyn Williams is Black. Williams had cashier experience when she applied to the Pearl, Mississippi store in person in June 2006, and on- line around May 2012. After applying, Williams called the store several times a week to check on the status of her application. She was repeatedly told that the store was not hiring, and that she could apply again if she di d not receive a call within 60-90 days. Williams was never contacted or hired by Defendants.
339. Daphne Williams is Black. She attended a job fair in April 2006 for the Pearl, Mississippi store. She indicated on her applicati on that she had cashier and sales experience, as well as experience with freshwater fishing, tent camping and RV camping. Williams later called the store to check on th e status of her application. In response, she was told th at the store was not hiring, but if they felt she was qualified for a position, they would ca ll her. She was never contacted or hired by Defendants.
340. Keshun Wren is Black. She applied in pe rson to the Pearl, Mi ssissippi store in August 2006. She listed her cashier experien ce on her application. Ms. W ren was never contacted or hired by Bass Pro.
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341. Pansy Evans is Black. Around 2005 or 2006, she applied on-line for a position at the Memphis, Tennessee, store or the Pearl, M ississippi, store. Sh e had Human Resources and banking experience when she applied. Defendants never hired Evans.
342. Tamika Kyle is Black. She applied to the Pearl, Mississippi store around May 2006 after hearing on the news that the store was hiring. Kyle submitted her ap plication in person, listing her retail experience, and archery and fishing experience. She attempted to follow up with a manager and was placed on hold for a lengthy period and then told th e manager was out. She tried again within a fe w days and received the sam e lack of response. Defendants did not interview or hire Kyle.
343. Zabriel Mack is Black. He applied to the Bossier City, Louisiana store around March 2007. He submitted a written application in person at the store to a White employee who was unreceptive to his application. He was told that som eone would call him about his application, but he did not receiv e a call. Mack followed up twice. The first time he was told they had to find his application and then they would call him back. The second tim e they told him they found the application and would call hi m back. Defendants never called him back and did not hire him.
344. Corey Oliver is Black. He had retail e xperience when he applied to the Bossier City, Louisiana store around May 2006. He submitted a written application in person by handing it to a m anager who looked at it in an odd way a nd said that som eone would get back to him . Oliver made several follow up calls and despit e his m essages and the store’s prom ises to get back to him, no one ever called Oliver back ab out his application. Oliv er never saw any Black employees at the store. He was not hired by Defendants.
345. Garrett Page is Black. He applied to the Bossier City, L ouisiana store around April 2006 by submitting a written application to a manager at the store. During the entire tim e
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Page was in the store attempting to apply f or a position, he was not per mitted to sit down and was treated rudely. However, a White applicant who arrived while Page was waiting was treated well and was seated so he could complete the app lication. Page was never contacted or hired by Defendants.
346. Brian Parker is Black. He had stocking experience an d fishing experience when he applied to the East Peoria, Illinois store in A ugust 2011. He subm itted a written application online and attend ed a job fair where he was turn ed away allegedly because it was “too full.” Parker called back to check the status of his online application. First, Parker was told they needed to look for his application. The next tim e he called, Parker was told all of the positions had been filled. He was not interviewed or hired by Defendants.
347. Ashley Robinson is Black. She had cashi er experience when she applied to the Bossier City, Louisiana store around April 2006 by submitting her application to an employee at the store who inform ed her that som eone would call her to discuss her application. Defendants did contact, interview, or hire Robinson.
348. LeDamien Rounds is Black. He applied to the Bossier Cit y, Louisiana store multiple times, includin g in J anuary 2007. H e submitted a written application in person by giving it to a Custom er Service Representative , who stated it would be given to the General Manager. Rounds then spoke w ith an employee who informed him that he would be called for an interview. After he did not receive a call from the store, Rounds called back to inquire about his application and was told that he would be called back. Again, Rounds did not hear about the status of his application. Defendants never hired Rounds.
349. Alonzo Spann is Black. He had relevant e xperience when he applied to the Pearl, Mississippi store twice: at a job fair in 2005 before the store opened and again in April 2006. Spann was interviewed by two m anagers who indicated they would get back with him , but they
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never did. Spann tried to f ollow up and was told that the store was still waiting to f ill positions. Defendants never hired Spann.
350. Cartavian Shamp is Black. He applied at the Bossier City, Louisiana store around 2006 after being told that the store w as hiring. Shamp submitted a written application in person at the stor e. Each tim e Shamp called to f ollow up on his application, he was i nformed that someone would call to let him know about the status of his appl ication, yet no on e ever called him back. Defendants did not hire Shamp.
351. Pearl Tyler-Tate is Black. She h ad sales experience when she app lied to the Pearl, Mississippi store in 2006 and again in July 2007. Both tim es she subm itted a written application in person at the store. Both tim es she was told som eone from Human Resources would call her about her applicati on. Tyler-Tate called back severa l times and was told that the store was still interviewing and reviewing applications. She was never contacted, interviewed, or hired by Defendants.
352. Juan Taylor is Black. He had stocki ng experience and had som e fishing and hunting experience when he applied to the Pearl, Mississippi store around July 2006 by submitting an applica tion at the s tore. He asked to speak to a m anager but was n ot given a n opportunity to do so. The store employee he spoke to was not friendly and tried to brush him off by telling him that someone would get back with him about his application. W hen he did not receive a call back, Taylor attem pted to check on the status of his application by e-mail and was told to check back by phone. Taylor called and wa s told that someone would get back with him. When he was not contacted, Taylor tried ag ain by phone and was placed on extended hold. Taylor tried calling back a third time and was then told that th e store was not hiring. Defendants did not hire Taylor.
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353. Chrissy Wells is Black. She applied to the Pearl, Mississippi store around May 2007. W ells and her mother went to the store a nd were told that the store was hiring. She submitted a written application to an employee, who told Wells that they would give her a call as soon as som ething became available. W ells thought this was an odd comm ent as she was previously told the store were hiring. W ells attempted to f ollow up with her ap plication on several occasions. She was told by the White manager that they were still looking and hiring and that someone would call her back. Defendants never contacted or hired Wells.
354. Aleshia Williams is Black. She had sales and cashier experience when she applied to the Bossier City, Louisiana store around June 2006 by submitting a written application after seeing an online jo b advertisement. Williams was interviewed by a manager and was told they would get back with her. Williams followed up several times, and her calls were forwarded to several people who did not ha ve any answers about her applic ation. Defendants did not hire Williams.
355. Floyd Reed is Black. He worked at th e Bluegreen section inside the Garland, Texas store where he marketed tim e shares for Bl uegreen resorts. He a pplied for a position at the Garland store to w ork for Defendants. R eed spoke with the General Manager about his application, but the General Man ager was noncommittal. At the tim e, there was only one Black employed in the whole store. Reed was never called for an interview and was never hired by Defendants.
356. Gerard Guy is Black. In March 2005, Guy applied to the Katy, Texas store. He had a phone interview with the Katy Store Hu man Resources Manager. Guy had attended a leadership program at the Marin e Corps Institu te and had extensive f ishing and cam ping experience. During his in-person interview, Guy discussed his y ears of experience working in security, a state prison, and as a manager at Costco, where he handled loss prevention m atters.
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The interviewer seemed uninterested and irritated at him during the interview. She told Guy that someone would call h im back, but no one did. Guy f ollowed up by calling the s tore multiple times and asking for the interviewer, but he was alternately told that she was out or was too busy to take his calls. Defendants did not hire Guy.
357. Johnny Thomas is Black. In 2007 or 2008, Thom as attended a job fair for the Pearland, Texas store and was interviewed. Despite Thomas' retail experience, he was not hired. Around January 2011, Thom as applied online with the Pearland store after seeing a job posting on Defendants’ website. Thom as was in the pr ocess of obtaining a m asters’ degree in human resources management at the time. He left messages with the Store Hum an Resources Manager to check on the status of his application, but he was not called back. Defendants did not hire him.
358. Melanie Jackson is Black. She applied to the Macon, Georgia store in August 2006 after attending a job fair in July 2006. She was given the Or ion test and sh e scored very well. She called once a week to fol low up on her application, and was finally told that she “had to pay a fee to take a test to see if [she] qualified for any positi on.” The fee she was quoted was $85, which she initially did not have. She called back when she had the m oney to pay for the test, but was told that there were no jobs available. Defendants never hired Jackson.
359. Anthony Reid is Black. He had m anagement, hunting, cam ping, and fishing experience when he subm itted an application to the Grap evine, Texas store in J uly 2006 an d applied online in August 2006. He spoke to Hum an Resources and to store m anagement about his application and followed up by telephone and in-person visits to the store. He was always told that the store “d idn’t have any position s for [him] yet.” In all h is trips to the Grapevine store, he had never seen a Black employee. Defendants never hired Reid.
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360. Reggie Smith is Black. He had f ishing and cam ping experience and was a frequent customer when he applied at the Katy, Texas store in 2007 or 2008, after having previously applied in May 2005. He also had a bachelor’s degree when he applied. Defendants never hired Smith, but he later obtained a posit ion at a competitor – Gander Mountain. Sm ith never saw a Black em ployee in Defendants’ Fish ing Department during his m any visits to the Katy store.
361. Kouros Jackson is Black. At the tim e Jackson applied for a Cashier job at the Macon, Georgia store sometime in December 2006, he had worked for several years as a cashier and had outdoor experience. Jackson knew the store was hiri ng because his sister, who had worked as a cleaning contractor at the store, told him. He was never hired by Defendants. Sheena Bibbs is Black. She had outdoor experience as well as two years of cashier experience when she applied for a Cashier position at the Pear l, Mississippi store in June 2007. She was not hired by Defendants.
REPORTS PREPARED BY DEFENDANTS CONTAINING THE COMPOSITION OF THEIR WORKFORCE SHOW A PLAUSIBLE CLAIM OF HIRING DISCRIMINATION AGAINST HISPANICS
DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE HISPANIC EMPLOYEES 362. As stated above, during EEOC’s administrative investigation, Defendants produced hiring data for 24 of their retail stores. 363. According to the hiring data for 24 of De fendants’ retail stores that Defendants produced to EEOC during EEOC’s ad ministrative investigation, out of a total 14,374 em ployees hired during the relevant time period, only 1,207 (8.4%) of the hires were Hispanic. 364. According to the hiring data for 24 of De fendants’ retail stores that Defendants produced to EEOC during EEOC’s adm inistrative investigation, 17 ( 70.8%) of the 24 stores hired a lower percentage of Hisp anic employees compared to the representation rate of Hispanic
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employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Bossier City, Louisiana, store, where out of 255 em ployees hired from January 2005 through Ma y 2007, only 6 (2.4%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county. b. Defendants’ Cincinnati, Ohio, store, where out of 285 e mployees hired from January 2005 through May 2007, not one was Hispanic, com pared to a representation rate of 1% Hispanic employees in the county. c. Defendants’ Destin, Florida, store, where out of 430 employees hired from January 2005 through July 2009, only 11 ( 2.6%) were Hispanic, compared to a representation rate of 3.4% Hispanic employees in the county. d. Defendants’ Duluth, Georgia, store, where out of 640 em ployees hired from January 2005 through July 2009, only 7 (1.1%) were Hispanic, compared to a representation rate of 8.5% Hispanic employees in the county. e. Defendants’ Garland, Texas, store, where out of 216 e mployees hired from January 2005 through May 2007, only 12 (5.6%) were Hispanic, com pared to a representation rate of 19.1% Hispanic employees in the county. f. Defendants’ Grapevine, Texas, stor e, where out of 285 e mployees hired from January 2005 through May 2007, only 10 (3.5%) were Hispanic, com pared to a representation rate of 16.5% Hispanic employees in the county. g. Defendants’ Katy, Texas, store, wh ere out of 306 em ployees hired from January 2005 through May 2007, only 28 (9.2 %) were Hispanic, com pared to a representation rate of 23.3% Hispanic employees in the county.
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h. Defendants’ Las Vegas, Nevada, store, where out of 867 em ployees hired from January 2005 through July 2009, only 84 (9.7%) were Hispanic, com pared to a representation rate of 17.7% Hispanic employees in the county. i. Defendants’ Macon, Georgia, store, where out of 250 em ployees hired from January 2005 through May 2007, only 2 (.8%) were Hispanic, compared to a representation rate of 1.2% Hispanic employees in the county. j. Defendants’ Memphis, Tennessee, st ore, where out of 428 em ployees hired from January 2005 through July 2009, only 5 (1.2%) were Hispanic, compared to a representation rate of 2.4% Hispanic employees in the county. k. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 783 employees hired from January 2005 through July 2009, only 13 (1.7%) were Hispanic, compared to a representation ra te of 2.8% Hispanic em ployees in the county. l. Defendants’ Nashville, Tennessee, store, wher e out of 839 em ployees hired from January 2005 through July 2009, only 11 (1.3%) were Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. m. Defendants’ Oklahoma City, Okla homa, store, where out of 761 employees hired from January 2005 through July 2009, only 24 (3.2%) were Hispanic, compared to a representation ra te of 5.8% Hispanic em ployees in the county. n. Defendants’ Orlando, Florida, store, where out of 946 e mployees hired from January 2005 through July 2009, only 94 (9.9%) were Hispanic, com pared to a representation rate of 15.6% Hispanic employees in the county.
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o. Defendants’ Saint Charles, Missouri, store, where out of 643 em ployees hired from January 2005 through July 2009, only 2 (.3%) were Hispanic, compared to a representation rate of 1.1% Hispanic employees in the county. p. Defendants’ San Antonio, Texas, stor e, where out of 273 e mployees hired from January 2005 through May 2007, only 98 (35.9%) were Hispanic, com pared to a representation rate of 48% Hispanic employees in the county. q. Defendants’ Savannah, Georgia, store, where out of 538 employees hired from January 2005 through March 2009, only 8 (1.5%) were Hispanic, com pared to a representation rate of 2.1% Hispanic employees in the county. 365. Comparing the num ber of Hispanic em ployees hired (as sp ecified in the hiring data for 24 of Defendants’ retail stores that Defendant s produced to EEOC during EEOC’s administrative investigation) to the representation rate of Hispanic employees in the county in which each store is located (as p rovided for in the Census 2000 Special EEO file) in dicates that Defendants had a net shortfall of 187 Hispanic employees.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2007 366. According to Defendants’ 2007 E EO-1 reports, out of a total em ployment of 8,186 employees in 43 retail stores, only 656 (8%) employees were Hispanic. 367. According to Defendants’ 2007 EE O-1 reports, 36 (83.7%) of Defenda nts’ 43 retail stores had a lower percentage of Hispanic employees compared to the representation rate of Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
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a. Defendants’ Bolingbrook, Illinois, st ore, where out of 195 em ployees, only ten (5.1%) were Hispanic, com pared to a representa tion rate of 9.5% Hispanic employees in the county. b. Defendants’ Bossier City, Louisiana, store, where out of 195 em ployees, only five (2.6%) were Hispanic, com pared to a representation rate of 2.7% Hispanic employees in the county. c. Defendants’ Broken Arrow, Oklahom a, store, where out of 177 employees, only two (1.1%) were Hispanic, compared to a representation rate of 4.6% Hispanic employees in the county. d. Defendants’ Cincinnati, Ohio, store, where out of 229 e mployees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. e. Defendants’ Clarksville, Indiana, store, where out of 272 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. f. Defendants’ Concord, North Carolina, store, where out of 242 e mployees, only four (1.7%) were Hispanic, com pared to a representation rate of 3.9% Hispanic employees in the county. g. Defendants’ Council Bluffs, Iowa, stor e, where out of 177 employees, not one was Hispanic, compared to a representation rate of 4.5% Hispanic employees in the county. h. Defendants’ Dania, Florida, store, where out of 255 em ployees, only 45 (17.6%) were Hispanic, com pared to a representation rate of 17.7% Hispanic employees in the county.
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i. Defendants’ Denver, Colorado, store, where out of 241 e mployees, only 25 (10.4%) were Hispanic, com pared to a representation rate of 17.3% Hispanic employees in the county. j. Defendants’ Destin, Florida, store, where out of 108 e mployees, only two (1.9%) were Hispanic, com pared to a representation rate of 3.4% Hispanic employees in the county. k. Defendants’ Duluth, Georgia, stor e, where out of 208 e mployees, only four (1.9%) were Hispanic, com pared to a representation rate of 8.5% Hispanic employees in the county. l. Defendants’ Ft. Myers, Fl orida, store, where ou t of 190 em ployees, only four (2.1%) were Hispanic, com pared to a representation rate of 9.2% Hispanic employees in the county. m. Defendants’ Garland, Texas, store, where out of 139 em ployees, only ten (7.2%) were Hispanic, com pared to a representation rate of 19.1% Hispanic employees in the county. n. Defendants’ Grapevine, Texas, store, where out of 300 employees, only 33 (11%) were Hispanic, com pared to a representation rate of 16.5% Hispanic employees in the county. o. Defendants’ Gurnee, Illinois, stor e, where out of 211 e mployees, only seven (3.3%) were Hispanic, compared to a representation rate of 13.1% Hispanic employees in the county. p. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 e mployees, only four (1.7%) were Hispanic, com pared to a representation rate of 2.2% Hispanic employees in the county.
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q. Defendants’ Islamorada, Florida, stor e, where out of 63 employees, only four (6.3%) were Hispanic, com pared to a representation rate of 15.5% Hispanic employees in the county. r. Defendants’ Katy, Texas, store, where out of 143 em ployees, only 25 (16.8%) were Hispanic, com pared to a representation rate of 23.3% Hispanic employees in the county. s. Defendants’ Kodak, Tennessee, store, where out of 217 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. t. Defendants’ Las Vegas, Nevada, store, where out of 210 e mployees, only 15 (7.1%) were Hispanic, com pared to a representation rate of 17.7% Hispanic employees in the county. u. Defendants’ Macon, Georgia, store, where out of 156 employees, only one (.6%) was Hispanic, compared to a representation rate of 1.2 % Hispanic employees in the county. v. Defendants’ Memphis, Tennessee, store, where out of 143 e mployees, not one was Hispanic, compared to a representation rate of 2.4% Hispanic employees in the county. w. Defendants’ Mesa, Arizona, store, where out of 187 e mployees, only 14 (7.5%) were Hispanic, com pared to a representation rate of 19.6% Hispanic employees in the county. x. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 151 employees, not one was Hispanic, com pared to a representation rate of 2.8% Hispanic employees in the county.
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y. Defendants’ Nashville, Tennessee, st ore, where out of 200 em ployees, store, only three (1.5%) were Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. z. Defendants’ Oklahoma City, Okla homa, store, where out of 155 employees, only two (1.3%) were Hispanic, compared to a representation rate of 5.8% Hispanic employees in the county. aa. Defendants’ Olathe, Kansas, store, where out of 174 e mployees, only six (3.4%) were Hispanic, com pared to a representation rate of 4.8% Hispanic employees in the county. bb. Defendants’ Orlando, Florida, store, where out of 277 e mployees, only 24 (8.7%) were Hispanic, com pared to a representation rate of 15.6% Hispanic employees in the county. cc. Defendants’ Pearl, Mississippi, store, where out of 164 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. dd. Defendants’ Pearland, Texas, store, where out of 205 em ployees, only 24 (11.7%) were Hispanic, com pared to a representation rate of 20.6% Hispanic employees in the county. ee. Defendants’ Portage, Indiana, store, where out of 200 e mployees, only six (3%) were Hispanic, compared to a representation rate of 4% Hispanic employees in the county. ff. Defendants’ Prattville, Alabama, store, where out of 193 employees, only one (.5%) was Hispanic, com pared to a representation rate of .9% Hispanic employees in the county.
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gg. Defendants’ Rancho Cucam onga, California, store, where out of 305 employees, only 102 (33.4%) were Hispanic, co mpared to a representation rate of 33.9% Hispanic employees in the county. hh. Defendants’ Saint Charles, Missouri, store, where out of 224 em ployees, only one (.4%) was Hispanic, com pared to a representation rate of 1.1% Hispanic employees in the county. ii. Defendants’ San Antonio, Texas, store, where out of 197 employees, only 90 (45.7%) were Hispanic, com pared to a representation rate of 48% Hispanic employees in the county. jj. Defendants’ Savannah, Geor gia, store, where out of 147 employees, not one was Hispanic, compared to a representation rate of 2.1% Hispanic employees in the county. 368. Comparing the num ber of Hispanic em ployees employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Hispanic employees in the county in which each store is located (as pro vided for in the Census 2000 Special EEO file) indicates that Defendants had a net s hortfall of 224 Hispanic e mployees in 2007.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2008 369. According to Defendants’ 2008 E EO-1 reports, out of a total em ployment of 8,410 employees in 49 retail stores, only 504 (6%) employees were Hispanic. 370. According to Defendants’ 2008 EE O-1 reports, 43 (87.8%) of Defenda nts’ 49 retail stores had a lower percentage of Hispanic employees compared to the representation rate of
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Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Ashland, Virginia, store, where out of 171 e mployees, only three (1.8%) were Hispanic, com pared to a representation rate of 2.7% Hispanic employees in the county. b. Defendants’ Bolingbrook, Illinois, st ore, where out of 177 em ployees, only five (2.8%) were Hispanic, com pared to a representation rate of 9.5% Hispanic employees in the county. c. Defendants’ Bossier City, Louisiana, store, where out of 171 em ployees, only four (2.3%) were Hispanic, com pared to a representation rate of 2.7% Hispanic employees in the county. d. Defendants’ Branson, Missouri, store, where out of 101 employees, only one (1%) was Hispanic, com pared to a representation rate of 1.7% Hispanic employees in the county. e. Defendants’ Broken Arrow, Oklahom a, store, where out of 212 employees, only four (1.9%) were Hispanic, compared to a represen tation rate of 4.6% Hispanic employees in the county. f. Defendants’ Cincinnati, Ohio, store, where out of 222 e mployees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. g. Defendants’ Clarksville, Indiana, store, where out of 223 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county.
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h. Defendants’ Columbia, Missouri, store, where out of 98 employees, only one (1%) was Hispanic, com pared to a representation rate of 1.3% Hispanic employees in the county. i. Defendants’ Concord, North Carolina, store, where out of 196 e mployees, only two (1%) were Hispanic, compared to a representation rate of 3.9% Hispanic employees in the county. j. Defendants’ Council Bluffs, Iowa, st ore, where out of 165 em ployees, only one (.6%) was Hispanic, com pared to a representation rate of 4.5% Hispanic employees in the county. k. Defendants’ Dania, Florida, store, where out of 229 em ployees, only 39 (17%) were Hispanic, com pared to a representation rate of 17.7% Hispanic employees in the county. l. Defendants’ Denham Springs, Louisi ana, store, where out of 166 employees, only one (.6%) was Hispanic, co mpared to a represen tation rate of .8% Hispanic employees in the county. m. Defendants’ Denver, Colorado, store, where out of 198 e mployees, only 18 (9.1%) were Hispanic, com pared to a representation rate of 17.3% Hispanic employees in the county. n. Defendants’ Destin, Florida, store, where out of 99 e mployees, only two (2%) were Hispanic, com pared to a re presentation rate of 3.4% Hispanic employees in the county. o. Defendants’ Duluth, Georgia, store, where out of 193 employees, only two (1%) were Hispanic, com pared to a re presentation rate of 8.5% Hispanic employees in the county.
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p. Defendants’ Foxborough, Massachusetts , store, where out of 207 employees, only three (1.4%) were Hispanic, compared to a representation rate of 2.5% Hispanic employees in the county. q. Defendants’ Ft. Myers, Fl orida, store, where ou t of 172 em ployees, only four (2.3%) were Hispanic, com pared to a representation rate of 9.2% Hispanic employees in the county. r. Defendants’ Garland, Texas, store, where out of 123 em ployees, only ten (8.1%) were Hispanic, com pared to a representation rate of 19.1% Hispanic employees in the county. s. Defendants’ Grapevine, Texas, store, where out of 291 employees, only 32 (11%) were Hispanic, com pared to a representation rate of 16.5% Hispanic employees in the county. t. Defendants’ Gurnee, Illinois, stor e, where out of 175 e mployees, only three (1.7%) were Hispanic, com pared to a representation rate of 13.1% Hispanic employees in the county. u. Defendants’ Hanover, Maryland, store, where out of 221 employees, only four (1.8%) were Hispanic, com pared to a representation rate of 2.8% Hispanic employees in the county. v. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 e mployees, only three (1.3%) were Hispanic, com pared to a representation rate of 2.2% Hispanic employees in the county. w. Defendants’ Independence, Missouri, store, where out of 166 e mployees, only two (1.2%) were Hispanic, com pared to a representation rate of 3.8% Hispanic employees in the county.
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x. Defendants’ Islamorada, Florida, stor e, where out of 61 employees, only five (8.2%) were Hispanic, com pared to a representation rate of 15.5% Hispanic employees in the county. y. Defendants’ Katy, Texas, store, where out of 129 em ployees, only 13 (10.1%) were Hispanic, com pared to a representation rate of 23.3% Hispanic employees in the county. z. Defendants’ Las Vegas, Nevada, store, where out of 195 e mployees, only 19 (9.7%) were Hispanic, com pared to a representation rate of 17.7% Hispanic employees in the county. aa. Defendants’ Macon, Georgia, store, where out of 158 employees, only one (.6%) was Hispanic, compared to a representation rate of 1.2 % Hispanic employees in the county. bb. Defendants’ Memphis, Tennessee, st ore, where out of 125 e mployees, only one (.8%) was Hispanic, com pared to a representation rate of 2.4% Hispanic employees in the county. cc. Defendants’ Mesa, Arizona, store, where out of 154 e mployees, only 16 (10.4%) were Hispanic, com pared to a representation rate of 19.6% Hispanic employees in the county. dd. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 136 employees, not one was Hispanic, com pared to a representation rate of 2.8% Hispanic employees in the county. ee. Defendants’ Nashville, Tennessee, st ore, where out of 196 em ployees, only two (1%) were Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county.
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ff. Defendants’ Oklahoma City, Okla homa, store, where out of 130 employees, only three (2.3%) were Hispanic, compared to a representation rate of 5.8% Hispanic employees in the county. gg. Defendants’ Olathe, Kansas, store, where out of 156 e mployees, only four (2.6%) were Hispanic, com pared to a representation rate of 4.8% Hispanic employees in the county. hh. Defendants’ Orlando, Florida, store, where out of 224 e mployees, only 19 (8.5%) were Hispanic, com pared to a representation rate of 15.6% Hispanic employees in the county. ii. Defendants’ Pearl, Mississippi, store, where out of 153 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. jj. Defendants’ Pearland, Texas, store, where out of 123 em ployees, only 19 (15.4%) were Hispanic, com pared to a representation rate of 20.6% Hispanic employees in the county. kk. Defendants’ Portage, Indiana, stor e, where out of 157 e mployees, only five (3.2%) were Hispanic, com pared to a representation rate of 4% Hispanic employees in the county. ll. Defendants’ Prattville, Alabama, store, where out of 187 employees, only one (.5%) was Hispanic, com pared to a representation rate of .9% Hispanic employees in the county. mm. Defendants’ Rancho Cucam onga, California, store, where out of 260 employees, only 71 (27.3%) were Hispanic, compared to a representation rate of 33.9% Hispanic employees in the county.
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nn. Defendants’ Saint Charles, Missouri, store, where out of 184 em ployees, only one (.5%) was Hispanic, com pared to a representation rate of 1.1% Hispanic employees in the county. oo. Defendants’ San Antonio, Texas, store, where out of 179 employees, only 75 (41.9%) were Hispanic, com pared to a representation rate of 48% Hispanic employees in the county. pp. Defendants’ Savannah, Georgia, store, where out of 118 employees, only one (.8%) was Hispanic, com pared to a representation rate of 2.1% Hispanic employees in the county. qq. Defendants’ Spanish Fort, Alabam a, store, where out of 197 e mployees, only one (.5%) was Hispanic, com pared to a representation rate of 1.8% Hispanic employees in the county. 371. Comparing the num ber of Hispanic em ployees employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Hispanic employees in the county in which each store is located (as pro vided for in the Census 2000 Special EEO file) indicates that Defendants had a net s hortfall of 254 Hispanic e mployees in 2008.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2009 372. According to Defendants’ 2009 E EO-1 reports, out of a total em ployment of 8,561 employees in 52 retail stores, only 498 (5.8%) employees were Hispanic. 373. According to Defendants’ 2009 EE O-1 reports, 44 (84.6%) of Defenda nts’ 52 retail stores had a lower percentage of Hispanic employees compared to the representation rate of
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Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Altoona, Iowa, store, where out of 208 em ployees, only two (1%) were Hispanic, com pared to a re presentation rate of 2.9% Hispanic employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 202 e mployees, only two (1%) were Hispa nic, compared to a rep resentation rate of 2.7 % Hispanic employees in the county. c. Defendants’ Bolingbrook, Illinois, st ore, where out of 168 em ployees, only six (3.6%) were Hispanic, com pared to a representa tion rate of 9.5% Hispanic employees in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 166 em ployees, only four (2.4%) were Hispanic, com pared to a representation rate of 2.7% Hispanic employees in the county. e. Defendants’ Branson, Missouri, store, where out of 97 employees, not one was Hispanic, compared to a representati on rate of 1.7% Hispanic em ployees in the county. f. Defendants’ Broken Arrow, Oklahom a, store, where out of 210 employees, only eight (3.8%) were Hispanic, compared to a representation rate of 4.6% Hispanic employees in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 220 e mployees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county.
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h. Defendants’ Clarksville, Indiana, store, where out of 223 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. i. Defendants’ Columbia, Missouri, stor e, where out of 74 employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic employees in the county. j. Defendants’ Concord, North Carolina, store, where out of 189 e mployees, only three (1.6%) were Hispanic, com pared to a representation rate of 3.9% Hispanic employees in the county. k. Defendants’ Council Bluffs, Iowa, st ore, where out of 172 em ployees, only one (.6%) was Hispanic, com pared to a representation rate of 4.5% Hispanic employees in the county. l. Defendants’ Denham Springs, Louisi ana, store, where out of 160 employees, only one (.6%) was Hispanic, co mpared to a represen tation rate of .8% Hispanic employees in the county. m. Defendants’ Denver, Colorado, store, where out of 216 e mployees, only 21 (9.7%) were Hispanic, com pared to a representation rate of 17.3% Hispanic employees in the county. n. Defendants’ Destin, Florida, store, where out of 100 e mployees, only two (2%) were Hispanic, com pared to a re presentation rate of 3.4% Hispanic employees in the county. o. Defendants’ Duluth, Georgia, store, where out of 182 employees, only one (.5%) was Hispanic, compared to a representation rate of 8.5 % Hispanic employees in the county.
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p. Defendants’ Foxborough, Massachusetts , store, where out of 188 employees, only one (.5%) was Hispanic, co mpared to a represen tation rate of 2.5% Hispanic employees in the county. q. Defendants’ Ft. Myers, Fl orida, store, where ou t of 161 em ployees, only three (1.9%) were Hispanic, com pared to a representation rate of 9.2% Hispanic employees in the county. r. Defendants’ Garland, T exas, store, where out of 115 e mployees, only seven (6.1%) were Hispanic, compared to a representation rate of 19.1% Hispanic employees in the county. s. Defendants’ Grapevine, Texas, store, where out of 242 employees, only 30 (12.4%) were Hispanic, com pared to a representation rate of 16.5% Hispanic employees in the county. t. Defendants’ Gurnee, Illinois, store, where out of 144 e mployees, only one (.7%) was Hispanic, com pared to a re presentation rate of 13.1% Hispanic employees in the county. u. Defendants’ Hanover, Maryland, store, where out of 214 employees, only three (1.4%) were Hispanic, com pared to a representation rate of 2.8% Hispanic employees in the county. v. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 e mployees, only three (1.5%) were Hispanic, com pared to a representation rate of 2.2% Hispanic employees in the county. w. Defendants’ Independence, Missouri, store, where out of 149 e mployees, not one was Hispanic, com pared to a representation rate of 3.8% Hispanic employees in the county.
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x. Defendants’ Islamorada, Florida, stor e, where out of 55 employees, only four (7.3%) were Hispanic, com pared to a representation rate of 15.5% Hispanic employees in the county. y. Defendants’ Katy, Texas, store, where out of 125 em ployees, only 15 (12%) were Hispanic, com pared to a representation rate of 23.3% Hispanic employees in the county. z. Defendants’ Las Vegas, Nevada, store, where out of 164 e mployees, only 16 (9.8%) were Hispanic, com pared to a representation rate of 17.7% Hispanic employees in the county. aa. Defendants’ Leeds, Alabama, store, where out of 218 e mployees, not one was Hispanic, compared to a representati on rate of 1.6% Hispanic em ployees in the county. bb. Defendants’ Macon, Georgia, store, where out of 137 employees, only one (.7%) was Hispanic, compared to a representation rate of 1.2 % Hispanic employees in the county. cc. Defendants’ Manteca, California, store, where out of 186 employees, only 24 (12.9%) were Hispanic, com pared to a representation rate of 26.3% Hispanic employees in the county. dd. Defendants’ Memphis, Tennessee, st ore, where out of 131 e mployees, only 3 (2.3%) were Hispanic, com pared to a representation rate of 2.4% Hispanic employees in the county. ee. Defendants’ Mesa, Arizona, store, where out of 155 e mployees, only 14 (9%) were Hispanic, com pared to a re presentation rate of 19.6% Hispanic employees in the county.
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ff. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 131 employees, not one was Hispanic, com pared to a representation rate of 2.8% Hispanic employees in the county. gg. Defendants’ Nashville, Tennessee, store, where out of 181 employees, not one was Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. hh. Defendants’ Oklahoma City, Okla homa, store, where out of 146 employees, not one was Hispanic, com pared to a representation rate of 5.8% Hispanic employees in the county. ii. Defendants’ Olathe, Kansas, store, where out of 128 employees, only three (2.3%) were Hispanic, com pared to a representation rate of 4.8% Hispanic employees in the county. jj. Defendants’ Orlando, Florida, store, where out of 214 e mployees, only 16 (7.5%) were Hispanic, com pared to a representation rate of 15.6% Hispanic employees in the county. kk. Defendants’ Pearl, Mississippi, store, where out of 159 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. ll. Defendants’ Pearland, Texas, store, where out of 124 em ployees, only 21 (16.9%) were Hispanic, com pared to a representation rate of 20.6% Hispanic employees in the county. mm. Defendants’ Prattville, Alabama, store, where out of 148 employees, only one (.7%) was Hispanic, com pared to a representation rate of .9% Hispanic employees in the county.
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nn. Defendants’ Rancho Cucam onga, California, store, where out of 260 employees, only 61 (23.5%) were Hispanic, compared to a representation rate of 33.9% Hispanic employees in the county. oo. Defendants’ Saint Charles, Missouri, store, where out of 187 em ployees, only one (.5%) was Hispanic, com pared to a representation rate of 1.1% Hispanic employees in the county. pp. Defendants’ San Antonio, Texas, store, where out of 154 employees, only 68 (44.2%) were Hispanic, com pared to a representation rate of 48% Hispanic employees in the county. qq. Defendants’ Savannah, Georgia, store, where out of 117 employees, only one (.9%) was Hispanic, com pared to a representation rate of 2.1% Hispanic employees in the county. rr. Defendants’ Spanish Fort, Alabam a, store, where out of 177 e mployees, not one was Hispanic, com pared to a representation rate of 1.8% Hispanic employees in the county. 374. Comparing the num ber of Hispanic em ployees employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic employees in the county in which each store is located (as pro vided for in the Census 2000 Special EEO file) indicates that Defendants had a net s hortfall of 275 Hispanic e mployees in 2009.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2010 375. According to Defendants’ 2010 E EO-1 reports, out of a total em ployment of 8,839 employees in 52 retail stores, only 550 (6.2%) employees were Hispanic.
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376. According to Defendants’ 2010 EE O-1 reports, 44 (84.6%) of Defenda nts’ 52 retail stores had a lower percentage of Hispanic employees compared to the representation rate of Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Altoona, Iowa, store, where out of 189 em ployees, only two (1.1%) were Hispanic, com pared to a representation rate of 2.9% Hispanic employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 190 e mployees, only two (1.1%) were Hispanic, com pared to a representation rate of 2.7% Hispanic employees in the county. c. Defendants’ Auburn, New York, store, where out of 139 e mployees, only one (.7%) was Hispanic, com pared to a representation rate of 1.4% Hispanic employees in the county. d. Defendants’ Bolingbrook, Illinois, st ore, where out of 170 em ployees, only four (2.4%) were Hispanic, com pared to a representation rate of 9.5% Hispanic employees in the county. e. Defendants’ Branson, Missouri, stor e, where out of 105 em ployees, not one was Hispanic, compared to a representation rate of 1.7% Hispanic employees in the county. f. Defendants’ Broken Arrow, Oklahom a, store, where out of 215 employees, only six (2.8%) were Hispanic, compared to a represen tation rate of 4.6% Hispanic employees in the county.
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g. Defendants’ Cincinnati, Ohio, store, where out of 208 e mployees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. h. Defendants’ Clarksville, Indiana, store, where out of 234 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. i. Defendants’ Columbia, Missouri, stor e, where out of 98 employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic employees in the county. j. Defendants’ Concord, North Carolina, store, where out of 203 e mployees, only three (1.5%) were Hispanic, com pared to a representation rate of 3.9% Hispanic employees in the county. k. Defendants’ Council Bluffs, Iowa, st ore, where out of 190 em ployees, only four (2.1%) were Hispanic, com pared to a representation rate of 4.5% Hispanic employees in the county. l. Defendants’ Denham Springs, Louisi ana, store, where out of 163 employees, only one (.6%) was Hispanic, co mpared to a represen tation rate of .8% Hispanic employees in the county. m. Defendants’ Denver, Colorado, store, where out of 206 e mployees, only 19 (9.2%) were Hispanic, com pared to a representation rate of 17.3% Hispanic employees in the county. n. Defendants’ Destin, Florida, store, where out of 106 employees, only three (2.8%) were Hispanic, com pared to a representation rate of 3.4% Hispanic employees in the county.
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o. Defendants’ Duluth, Georgia, stor e, where out of 183 e mployees, only four (2.2%) were Hispanic, com pared to a representation rate of 8.5% Hispanic employees in the county. p. Defendants’ Foxborough, Massachusetts , store, where out of 190 employees, only one (.5%) was Hispanic, co mpared to a represen tation rate of 2.5% Hispanic employees in the county. q. Defendants’ Ft. Myers, Fl orida, store, where ou t of 157 em ployees, only seven (4.5%) were Hispanic, com pared to a representation rate of 9.2% Hispanic employees in the county. r. Defendants’ Garland, Texas, store, where out of 134 employees, only nine (6.7%) were Hispanic, com pared to a representation rate of 19.1% Hispanic employees in the county. s. Defendants’ Grapevine, Texas, store, where out of 290 employees, only 20 (10%) were Hispanic, com pared to a representation rate of 16.5% Hispanic employees in the county. t. Defendants’ Gurnee, Illinois, store, where out of 159 e mployees, not one was Hispanic, compared to a representation rate of 13.1% Hispanic em ployees in the county. u. Defendants’ Hampton, Virginia, store, where out of 155 employees, only three (1.9%) were Hispanic, com pared to a representation rate of 2% Hispanic employees in the county. v. Defendants’ Hanover, Maryland, store, where out of 225 employees, only two (.9%) were Hispanic, com pared to a representation rate of 2.8 % Hispanic employees in the county.
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w. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 e mployees, only three (1.5%) were Hispanic, com pared to a representation rate of 2.2% Hispanic employees in the county. x. Defendants’ Independence, Missouri, store, where out of 153 e mployees, not one was Hispanic, com pared to a representation rate of 3.8% Hispanic employees in the county. y. Defendants’ Islamorada, Florida, stor e, where out of 57 employees, only six (10.5%) were Hispanic, com pared to a representation rate of 15.5% Hispanic employees in the county. z. Defendants’ Katy, Texas, store, where out of 120 em ployees, only 12 (10%) were Hispanic, com pared to a representation rate of 23.3% Hispanic employees in the county. aa. Defendants’ Las Vegas, Nevada, stor e, where out of 155 e mployees, only 17 (11%) w ere Hispanic, com pared to a representation rate of 17.7% Hispanic employees in the county. bb. Defendants’ Leeds, Alabama, store, where out of 182 e mployees, not one was Hispanic, compared to a representati on rate of 1.6% Hispanic em ployees in the county. cc. Defendants’ Manteca, California, store, where out of 225 employees, only 31 (13.8%) were Hispanic, com pared to a representation rate of 26.3% Hispanic employees in the county. dd. Defendants’ Memphis, Tennessee, st ore, where out of 136 e mployees, only two (1.5%) were Hispanic, com pared to a representation rate of 2.4% Hispanic employees in the county.
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ee. Defendants’ Mesa, Arizona, store, where out of 154 e mployees, only 14 (9.1%) were Hispanic, com pared to a representation rate of 19.6% Hispanic employees in the county. ff. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 135 employees, only one (.7%) was Hispanic, co mpared to a represen tation rate of 2.8% Hispanic employees in the county. gg. Defendants’ Nashville, Tennessee, st ore, where out of 180 em ployees, only three (1.7%) were Hispanic, com pared to a representation rate of 3.3% Hispanic employees in the county. hh. Defendants’ Oklahoma City, Okla homa, store, where out of 152 employees, only one (.7%) was Hispanic, co mpared to a represen tation rate of 5.8% Hispanic employees in the county. ii. Defendants’ Olathe, Kansas, store, where out of 134 e mployees, only four (3%) were Hispanic, com pared to a re presentation rate of 4.8% Hispanic employees in the county. jj. Defendants’ Orlando, Florida, store, where out of 205 e mployees, only 12 (5.9%) were Hispanic, com pared to a representation rate of 15.6% Hispanic employees in the county. kk. Defendants’ Pearl, Mississippi, store, where out of 149 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. ll. Defendants’ Pearland, Texas, store, where out of 150 em ployees, only 27 (18%) were Hispanic, com pared to a representation rate of 20.6% Hispanic employees in the county.
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mm. Defendants’ Prattville, Alabam a, store, where out of 130 em ployees, not one was Hispanic, compared to a representation rate of .9% Hispanic employees in the county. nn. Defendants’ Rancho Cucam onga, California, store, where out of 281 employees, only 62 (22.1%) were Hispanic, compared to a representation rate of 33.9% Hispanic employees in the county. oo. Defendants’ Rossford, Ohio, store, where out of 167 e mployees, only 6 (3.6%) were Hispanic, com pared to a representation rate of 3.7% Hispanic employees in the county. pp. Defendants’ Saint Charles, Missouri, store, where out of 190 em ployees, only one (.5%) was Hispanic, com pared to a representation rate of 1.1% Hispanic employees in the county. qq. Defendants’ Savannah, Geor gia, store, where out of 113 employees, not one was Hispanic, compared to a representation rate of 2.1% Hispanic employees in the county. rr. Defendants’ Spanish Fort, Alabam a, store, where out of 192 e mployees, not one was Hispanic, com pared to a representation rate of 1.8% Hispanic employees in the county. 377. Comparing the num ber of Hispanic em ployees employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports) f or 52 retail stores to the representation rate of Hispanic employees in the county in which each store is located (as pro vided for in the Census 2000 Special EEO file) indicates that Defendants had a net s hortfall of 281 Hispanic e mployees in 2010.
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DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE HISPANIC MANAGERS Defendants’ Discriminatory Failure to Hire
Hispanic Managers at Defendants’ Retail Stores in 2007 378. According to Defendants’ 2007 E EO-1 reports, out of a total em ployment of 8,186 employees in 43 retail stores, 606 (7.4%) employees were managers. 379. According to Defendants’ 2007 EEO-1 reports, out of 606 m anagers in Defendants’ 43 retail stores, only 33 (5.4%) were Hispanic. 380. According to Defendants’ 2007 EE O-1 reports, 35 (81.4%) of Defenda nts’ 43 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county. b. Defendants’ Auburn Hills, Michigan store where out of 13 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.4% Hispanic m anagers in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 15 managers, not one was Hispanic, com pared to a represen tation rate of 3.6% Hispanic m anagers in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 15 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.6% Hispanic m anagers in the county.
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e. Defendants’ Branson, Missouri, store, where out of ten m anagers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. f. Defendants’ Broken Arrow, Oklahom a, store, where out of 15 m anagers, not one was Hispanic, com pared to a representation rate of 2.3 % Hispanic managers in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 14 m anagers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. h. Defendants’ Clarksville, Indiana, store, where out of 16 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. i. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county. j. Defendants’ Concord, North Carolina, store, where out of 15 m anagers, not one was Hispanic, com pared to a representation rate of 1.7% Hispanic managers in the county. k. Defendants’ Council Bluffs, Iowa, stor e, where out of 14 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.7% Hispanic m anagers in the county. l. Defendants’ Dania, Florida, store, where out of 15 m anagers, only two (13.3%) were Hispanic, com pared to a representation rate of 14.1% Hispanic managers in the county.
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m. Defendants’ Destin, Florida, store, where out of 10 managers, not one was Hispanic, compared to a representation ra te of 2.2% Hispanic m anagers in the county. n. Defendants’ Duluth, Georgia, store, where out of 16 m anagers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. o. Defendants’ Ft. Myers, Florida, stor e, where out of 14 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county. p. Defendants’ Garland, T exas, store, where out of 14 m anagers, only one (7.1%) was Hispanic, compared to a representation rate of 8% Hispanic managers in the county. q. Defendants’ Grapevine, Texas, store, where out of 21 m anagers, only one (4.8%) was Hispanic, com pared to a re presentation rate of 7.7% Hispanic managers in the county. r. Defendants’ Gurnee, Illinois, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. s. Defendants’ Hampton, Virginia, store, where out of 13 m anagers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county. t. Defendants’ Hanover, Maryland, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county.
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u. Defendants’ Harrisburg, Pennsylvania, store, w here out of 14 m anagers, not one was Hispanic, com pared to a representation rate of 1.1% Hispanic managers in the county. v. Defendants’ Kodak, Tennessee, store, where out of 14 m anagers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county. w. Defendants’ Las Vegas, Nevada, store, where out of 13 m anagers, not one was Hispanic, compared to a representation rate of 7.3% Hispanic managers in the county. x. Defendants’ Macon, Georgia, store, where out of 12 managers, not one was Hispanic, compared to a rep resentation rate of 1% Hispanic managers in the county. y. Defendants’ Memphis, Tennessee, stor e, where out of 14 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.3% Hispanic m anagers in the county. z. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 11 managers, not one was Hispanic, com pared to a representation rate of 1% Hispanic managers in the county. aa. Defendants’ Nashville, Tennessee, st ore, where out of 14 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.2% Hispanic m anagers in the county. bb. Defendants’ Oklahoma City, Oklahoma, store, where out of 15 m anagers, not one was Hispanic, com pared to a representation rate of 3.1% Hispanic managers in the county.
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cc. Defendants’ Olathe, Kansas, store, where out of 15 managers, not one was Hispanic, compared to a representation ra te of 2.2% Hispanic m anagers in the county. dd. Defendants’ Orlando, Florida, store, where out of 17 m anagers, only one (5.9%) was Hispanic, com pared to a re presentation rate of 8.6% Hispanic managers in the county. ee. Defendants’ Pearl, Mississippi, store, where out of 14 m anagers, not one was Hispanic, compared to a representation rate of .5% Hispanic managers in the county. ff. Defendants’ Portage, In diana, store, where out of 14 m anagers, not one was Hispanic, compared to a rep resentation rate of 3% Hispanic managers in the county. gg. Defendants’ Rancho C ucamonga, California, store, wh ere out of 20 managers, only three (15%) were H ispanic, compared to a representation rate of 19.3% Hispanic managers in the county. hh. Defendants’ Saint Charles, Missouri, store, where out of 16 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.1% Hispanic m anagers in the county. ii. Defendants’ Savannah, Georgia, store, where out of 15 m anagers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. 381. Comparing the num ber of Hispanic managers employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census
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2000 Special EEO file) indicates th at Defendants had a net shortfal l of 3 Hispanic m anagers in 2007.
Defendants’ Discriminatory Failure to Hire Hispanic Managers at Defendants’ Retail Stores in 2008 382. According to Defendants’ 2008 E EO-1 reports, out of a total em ployment of 8,410 employees in 49 retail stores, 630 (7.5%) employees were managers. 383. According to Defendants’ 2008 EEO-1 reports, out of 630 m anagers in Defendants’ 49 retail stores, only 28 (4.4%) were Hispanic. 384. According to Defendants’ 2008 EE O-1 reports, 41 (83.7%) of Defenda nts’ 49 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Ashland, Virginia, store, where out of 10 m anagers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. b. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county. c. Defendants’ Auburn Hills, Michigan store where out of 13 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.4% Hispanic m anagers in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Hispanic, com pared to a represen tation rate of 3.6% Hispanic m anagers in the county.
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e. Defendants’ Bossier City, Louisiana, store, where out of 12 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.6% Hispanic m anagers in the county. f. Defendants’ Branson, Missouri, store, where out of nine m anagers, not one was Hispanic, com pared to a represen tation rate of 1.1% Hispanic m anagers in the county. g. Defendants’ Broken Arrow, Oklahom a, store, where out of 12 m anagers, not one was Hispanic, com pared to a representation rate of 2.3% Hispanic managers in the county. h. Defendants’ Cincinnati, Ohio, store, where out of 14 m anagers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. i. Defendants’ Clarksville, Indiana, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. j. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county. k. Defendants’ Concord, North Carolina, store, where out of 15 m anagers, not one was Hispanic, com pared to a representation rate of 1.7% Hispanic managers in the county. l. Defendants’ Council Bluffs, Iowa, stor e, where out of 12 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.7% Hispanic m anagers in the county.
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m. Defendants’ Dania, Florida, store, where out of 15 m anagers, only two (13.3%) was Hispanic, com pared to a re presentation rate of 14.1% Hispanic managers in the county. n. Defendants’ Destin, Florida, store, where out of nine m anagers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. o. Defendants’ Duluth, Georgia, store, where out of 15 m anagers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. p. Defendants’ Foxborough, Massachusetts, store, where out of 16 managers, not one was Hispanic, com pared to a representation rate of 1.2% Hispanic managers in the county. q. Defendants’ Ft. Myers, Florida, stor e, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county. r. Defendants’ Grapevine, Texas, store, where out of 19 m anagers, only one (5.3%) was Hispanic, com pared to a re presentation rate of 7.7% Hispanic managers in the county. s. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. t. Defendants’ Hampton, Virginia, store, where out of 12 m anagers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county.
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u. Defendants’ Hanover, Maryland, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. v. Defendants’ Harrisburg, Pennsylvania, store, w here out of 12 m anagers, not one was Hispanic, com pared to a representation rate of 1.1% Hispanic managers in the county. w. Defendants’ Independence, Missouri, store, where out of 14 managers, not one was Hispanic, com pared to a represen tation rate of 2.2% Hispanic m anagers in the county. x. Defendants’ Katy, Texas, store, w here out of 11 m anagers, only one (9.1%) was Hispanic, com pared to a re presentation rate of 10.1% Hispanic managers in the county. y. Defendants’ Kodak, Tennessee, store, where out of 15 m anagers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county. z. Defendants’ Las Vegas, Nevada, stor e, where out of 14 managers, only one (7.1%) was Hispanic, com pared to a representation rate of 7.3% Hispanic managers in the county. aa. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Hispanic, compared to a rep resentation rate of 1% Hispanic managers in the county. bb. Defendants’ Memphis, Tennessee, stor e, where out of 13 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.3% Hispanic m anagers in the county.
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cc. Defendants’ Miami, Florida, store, where out of 12 m anagers, only five (41.7%) were Hispanic, com pared to a representation rate of 49.6% Hispanic managers in the county dd. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 13 managers, not one was Hispanic, com pared to a representation rate of 1% Hispanic managers in the county. ee. Defendants’ Nashville, Tennessee, st ore, where out of 15 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.2% Hispanic m anagers in the county. ff. Defendants’ Oklahoma City, Oklahoma, store, where out of 12 m anagers, not one was Hispanic, com pared to a representation rate of 3.1% Hispanic managers in the county. gg. Defendants’ Olathe, Kansas, store, where out of 14 managers, not one was Hispanic, compared to a representation ra te of 2.2% Hispanic m anagers in the county. hh. Defendants’ Orlando, F lorida, store, where out of 17 m anagers, not one was Hispanic, compared to a representation rate of 8.6% Hispanic managers in the county. ii. Defendants’ Pearl, Mississippi, store, where out of 12 m anagers, not one was Hispanic, compared to a representation rate of .5% Hispanic managers in the county. jj. Defendants’ Portage, In diana, store, where out of 12 m anagers, not one was Hispanic, compared to a rep resentation rate of 3% Hispanic managers in the county.
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kk. Defendants’ Rancho C ucamonga, California, store, wh ere out of 15 managers, only one (6.7%) was Hispanic, co mpared to a representation rate of 19.3% Hispanic managers in the county. ll. Defendants’ Rossford, Ohio, store, where out of 13 managers, not one was Hispanic, compared to a representation ra te of 1.8% Hispanic m anagers in the county. mm. Defendants’ Saint Charles, Missouri, store, where out of 13 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.1% Hispanic m anagers in the county. nn. Defendants’ Savannah, Georgia, store, where out of 13 m anagers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. oo. Defendants’ Spanish Fort, Alabam a, store, where out of 12 m anagers, not one was Hispanic, compared to a representation rate of .8 % Hispanic managers in the county. 385. Comparing the num ber of Hispanic managers employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates th at Defendants had a net shortfal l of 6 Hispanic m anagers in 2008.
Defendants’ Discriminatory Failure to Hire Hispanic Managers at Defendants’ Retail Stores in 2009 386. According to Defendants’ 2009 E EO-1 reports, out of a total em ployment of 8,561 employees in 52 retail stores, 588 (6.9%) employees were managers.
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387. According to Defendants’ 2009 EEO-1 reports, out of 588 m anagers in Defendants’ 52 retail stores, only 27 (4.6%) were Hispanic.
388. According to Defendants’ 2009 EE O-1 reports, 42 (80.8%) of Defenda nts’ 52 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Altoona, Iowa, store, where out of 12 m anagers, not one was Hispanic, compared to a representation ra te of 1.2% Hispanic m anagers in the county. b. Defendants’ Ashland, Virginia, store, where out of 11 m anagers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. c. Defendants’ Auburn, New York, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county. d. Defendants’ Auburn Hills, Michigan store where out of 11 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.4% Hispanic m anagers in the county. e. Defendants’ Bolingbrook, Illino is, store, where out of ten m anagers, not one was Hispanic, com pared to a represen tation rate of 3.6% Hispanic m anagers in the county. f. Defendants’ Bossier City, Louisiana, store, where out of 11 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.6% Hispanic m anagers in the county.
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g. Defendants’ Branson, Missouri, store, where out of ten m anagers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. h. Defendants’ Broken Arrow, Oklahom a, store, where out of 12 m anagers, not one was Hispanic, com pared to a representation rate of 2.3% Hispanic managers in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 11 m anagers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. j. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. k. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county. l. Defendants’ Concord, North Carolina, store, where out of 12 m anagers, not one was Hispanic, com pared to a representation rate of 1.7% Hispanic managers in the county. m. Defendants’ Council Bluffs, Iowa, stor e, where out of 12 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.7% Hispanic m anagers in the county. n. Defendants’ Dania, Florida, store, where out of 13 m anagers, only one (7.7%) was Hispanic, com pared to a re presentation rate of 14.1% Hispanic managers in the county.
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o. Defendants’ Denver, Colorado, store, where out of 13 m anagers, only one (7.7%) was Hispanic, com pared to a re presentation rate of 8.2% Hispanic managers in the county. p. Defendants’ Destin, Florida, store, where out of nine m anagers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. q. Defendants’ Duluth, Georgia, store, where out of 12 m anagers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Hispanic, com pared to a representation rate of 1.2% Hispanic managers in the county. s. Defendants’ Ft. Myers, Florida, stor e, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county. t. Defendants’ Grapevine, Texas, store, where out of 16 m anagers, only one (6.3%) was Hispanic, com pared to a re presentation rate of 7.7% Hispanic managers in the county. u. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. v. Defendants’ Hampton, Virginia, store, where out of 11 m anagers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county.
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w. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. x. Defendants’ Harrisburg, Pennsylvania, store, where out of nine m anagers, not one was Hispanic, com pared to a representation rate of 1.1% Hispanic managers in the county. y. Defendants’ Independence, Missouri, store, where out of 12 managers, not one was Hispanic, com pared to a represen tation rate of 2.2% Hispanic m anagers in the county. z. Defendants’ Kodak, Tennessee, store, where out of 12 m anagers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county. aa. Defendants’ Leeds, Alabam a, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .8% Hispanic managers in the county. bb. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Hispanic, compared to a rep resentation rate of 1% Hispanic managers in the county. cc. Defendants’ Manteca, California, stor e, where out of 12 managers, only one (8.3%) was Hispanic, com pared to a representation rate of 12.6% Hispanic managers in the county. dd. Defendants’ Miami, Florida, store, where out of 11 m anagers, only five (45.5%) were Hispanic, com pared to a representation rate of 49.6% Hispanic managers in the county.
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ee. Defendants’ Myrtle Beach, South Carolina, store, where out of t

en

managers, not one was Hispanic, com pared to a representation rate of 1%

Hispanic managers in the county.

ff. Defendants’ Nashville, Tennessee, st ore, where out of 12 m anagers, not

one was Hispanic, com pared to a represen tation rate of 1.2% Hispanic m anagers

in the county.

gg. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 m anagers,

not one was Hispanic, com pared to a representation rate of 3.1% Hispanic

managers in the county.

hh. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was

Hispanic, compared to a representation ra te of 2.2% Hispanic m anagers in the

county.

ii. Defendants’ Orlando, F lorida, store, where out of 13 m anagers, not one

was Hispanic, compared to a representation rate of 8.6% Hispanic managers in the

county.

jj. Defendants’ Pearl, Mississippi, store, where out of 12 m anagers, not one

was Hispanic, compared to a representation rate of .5% Hispanic managers in the

county.

kk. Defendants’ Portage, In diana, store, where out of 11 m anagers, not one

was Hispanic, compared to a rep resentation rate of 3% Hispanic managers in the

county.

ll. Defendants’ Rancho C ucamonga, California, store, wh ere out of 12

managers, only two (16.7%) was Hispanic, compared to a representation rate of

19.3% Hispanic managers in the county.

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mm. Defendants’ Rossford, Ohio, store, where out of 12 managers, not one was Hispanic, compared to a representation ra te of 1.8% Hispanic m anagers in the county. nn. Defendants’ Saint Charles, Missouri, store, where out of 11 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.1% Hispanic m anagers in the county. oo. Defendants’ Savannah, Georgia, store, where out of 11 m anagers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. pp. Defendants’ Spanish Fort, Alabama, store, where out of ten m anagers, not one was Hispanic, compared to a representation rate of .8 % Hispanic managers in the county. 389. Comparing the num ber of Hispanic managers employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates th at Defendants had a net shortfal l of 3 Hispanic m anagers in 2009.
Defendants’ Discriminatory Failure to Hire Hispanic Managers at Defendants’ Retail Stores in 2010 390. According to Defendants’ 2010 E EO-1 reports, out of a total em ployment of 8,839 employees in 52 retail stores, 586 (6.6%) employees were managers. 391. According to Defendants’ 2010 EEO-1 reports, out of 586 m anagers in Defendants’ 52 retail stores, only 24 (4.1%) were Hispanic.
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392. According to Defendants’ 2010 EE O-1 reports, 43 (82.7%) of Defenda nts’ 52 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Altoona, Iowa, store, where out of 12 m anagers, not one was Hispanic, compared to a representation ra te of 1.2% Hispanic m anagers in the county. b. Defendants’ Ashland, Virginia, store, where out of 11 m anagers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. c. Defendants’ Auburn, New York, store, where out of ten managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county. d. Defendants’ Auburn Hills, Michigan store where out of 11 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.4% Hispanic m anagers in the county. e. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Hispanic, com pared to a represen tation rate of 3.6% Hispanic m anagers in the county. f. Defendants’ Bossier City, Louisiana, store, where out of ten managers, not one was Hispanic, com pared to a represen tation rate of 1.6% Hispanic m anagers in the county.
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g. Defendants’ Branson, Missouri, store, where out of ten m anagers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. h. Defendants’ Broken Arrow, Oklahom a, store, where out of 12 m anagers, not one was Hispanic, com pared to a representation rate of 2.3 % Hispanic managers in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 11 m anagers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. j. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. k. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county. l. Defendants’ Concord, North Carolina, store, where out of 12 m anagers, not one was Hispanic, com pared to a representation rate of 1.7% Hispanic managers in the county. m. Defendants’ Council Bluffs, Iowa, stor e, where out of 12 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.7% Hispanic m anagers in the county. n. Defendants’ Dania, Florida, store, where out of 13 m anagers, only one (7.7%) was Hispanic, com pared to a re presentation rate of 14.1% Hispanic managers in the county.
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o. Defendants’ Denver, Colorado, store, where out of 14 m anagers, only one (7.1%) was Hispanic, com pared to a re presentation rate of 8.2% Hispanic managers in the county. p. Defendants’ Destin, Florida, store, where out of ten managers, not one was Hispanic, compared to a representation ra te of 2.2% Hispanic m anagers in the county. q. Defendants’ Duluth, Georgia, store, where out of 12 m anagers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Hispanic, com pared to a representation rate of 1.2% Hispanic managers in the county. s. Defendants’ Ft. Myers, Florida, stor e, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county. t. Defendants’ Grapevine, Texas, store, where out of 16 m anagers, not one was Hispanic, compared to a representation rate of 7.7% Hispanic managers in the county. u. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. v. Defendants’ Hampton, Virginia, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county.
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w. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. x. Defendants’ Harrisburg, Pennsylvania, store, w here out of 11 m anagers, not one was Hispanic, com pared to a representation rate of 1.1% Hispanic managers in the county. y. Defendants’ Independence, Missouri, store, where out of 11 managers, not one was Hispanic, com pared to a represen tation rate of 2.2% Hispanic m anagers in the county. z. Defendants’ Katy, Texas, store, w here out of ten m anagers, only one (10%) was Hispanic, com pared to a re presentation rate of 10.1% Hispanic managers in the county. aa. Defendants’ Kodak, Tennessee, store, where out of 12 m anagers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county. bb. Defendants’ Leeds, Alabam a, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .8% Hispanic managers in the county. cc. Defendants’ Macon, Georgia, store, where out of 12 managers, not one was Hispanic, compared to a rep resentation rate of 1% Hispanic managers in the county. dd. Defendants’ Manteca, California, stor e, where out of 12 managers, only one (8.3%) was Hispanic, com pared to a representation rate of 12.6% Hispanic managers in the county.
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ee. Defendants’ Miami, Florida, store, where out of ten m anagers, only four (40%) were Hispanic, com pared to a representation rate of 49.6% Hispanic managers in the county ff. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 11 managers, not one was Hispanic, com pared to a representation rate of 1% Hispanic managers in the county. gg. Defendants’ Nashville, Tennessee, st ore, where out of 12 m anagers, not one was Hispanic, com pared to a represen tation rate of 1.2% Hispanic m anagers in the county. hh. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 m anagers, not one was Hispanic, com pared to a representation rate of 3.1% Hispanic managers in the county. ii. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was Hispanic, compared to a representation ra te of 2.2% Hispanic m anagers in the county. jj. Defendants’ Orlando, F lorida, store, where out of 13 m anagers, not one was Hispanic, compared to a representation rate of 8.6% Hispanic managers in the county. kk. Defendants’ Pearl, Mississippi, store, where out of 11 m anagers, not one was Hispanic, compared to a representation rate of .5% Hispanic managers in the county. ll. Defendants’ Portage, In diana, store, where out of 11 m anagers, not one was Hispanic, compared to a rep resentation rate of 3% Hispanic managers in the county.
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mm. Defendants’ Rancho C ucamonga, California, store, wh ere out of 12 managers, only two (16.7%) were Hispanic, compared to a representation rate of 19.3% Hispanic managers in the county. nn. Defendants’ Rossford, Ohio, store, where out of 12 managers, not one was Hispanic, compared to a representation ra te of 1.8% Hispanic m anagers in the county. oo. Defendants’ Saint Charles, Missouri, store, where out of ten managers, not one was Hispanic, com pared to a represen tation rate of 1.1% Hispanic m anagers in the county. pp. Defendants’ Savannah, Georgia, store, where out of ten m anagers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. qq. Defendants’ Spanish Fort, Alabam a, where out of nine m anagers, not one was Hispanic, compared to a representation rate of .8 % Hispanic managers in the county. 393. Comparing the num ber of Hispanic managers employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates th at Defendants had a net shortfal l of 6 Hispanic m anagers in 2010.
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DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE HISPANIC SALES EMPLOYEES Defendants’ Discriminatory Failure to Hire
Hispanic Sales Employees at Defendants’ Retail Stores in 2007 394. According to Defendants’ 2007 E EO-1 reports, out of a total em ployment of 8,186 employees in 43 retail stores, 5,997 (73.3%) employees were sales employees. 395. According to Defendants’ 2007 EE O-1 reports, out of 5,997 sales em ployees in Defendants’ 43 retail stores, only 448 (7.5%) were Hispanic. 396. According to Defendants’ 2007 EE O-1 reports, 31 (72.1%) of Defenda nts’ 43 retail stores had a lower percen tage of Hispanic sales em ployees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Bolingbrook, Illinois, store, where out of 195 employees, 150 (76.9%) were sales em ployees, and out of those 150 sales employees, only eight (5.3%) were Hispanic, com pared to a repr esentation rate of 6.4% Hispanic sales employees in the county. b. Defendants’ Broken Arrow, Oklahom a, store, where out of 177 employees, 131 (74%) were sales e mployees, and out of those 131 sales employees, only one (.8%) was Hispanic, co mpared to a represen tation rate of 2.9% Hispanic sales employees in the county. c. Defendants’ Cincinnati, Ohio, stor e, where out of 229 employees, 183 (79.9%) were sales employees, and out of those 183 sales employees, not one was Hispanic, compared to a representation ra te of .8% Hispanic sales em ployees in the county.
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d. Defendants’ Clarksville, Indiana, store, where out of 272 employees, 210 (77.2%) were sales employees, and out of those 210 sales employees, not one was Hispanic, compared to a representation ra te of 1.8% Hispanic sales em ployees in the county. e. Defendants’ Columbia, Missouri, stor e, where out of 125 em ployees, 90 (72%) were sales em ployees, and out of those 90 sales em ployees, only one (1.1%) was Hispanic, com pared to a repr esentation rate of 1.3% Hispanic sales employees in the county. f. Defendants’ Council Bluffs, Iowa, store, where out of 177 employees, 130 (73.4%) were sales employees, and out of those 130 sales employees, not one was Hispanic, compared to a representation ra te of 2.2% Hispanic sales em ployees in the county. g. Defendants’ Dania, Florida, store, where out of 255 employees, 181 (71%) were sales em ployees, and out of t hose 181 sales em ployees, only 26 (14.4%) were Hispanic, com pared to a representation rate of 16.5% Hispanic sales employees in the county. h. Defendants’ Denver, C olorado, store, where out of 241 employees, 180 (74.7%) were sales employees, and out of those 180 sales em ployees, only 14 (7.8%) were Hispanic, com pared to a repr esentation rate of 12% Hispanic sales employees in the county. i. Defendants’ Destin, Florida, stor e, where out of 108 employees, 79 (73.1%) were sales employees, and out of those 79 sales em ployees, only two (2.5%) were Hispanic, com pared to a repr esentation rate of 3.9% Hispanic sales employees in the county.
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j. Defendants’ Duluth, Georgia, store, where out of 208 employees, 153 (77.2%) were sales em ployees, and out of those 153 sales employees, only two (1.3%) were Hispanic, com pared to a repr esentation rate of 4.3% Hispanic sales employees in the county. k. Defendants’ Ft. Myers, Florida, st ore, where out of 190 e mployees, 136 (71.6%) were sales em ployees, and out of those 136 sales employees, only three (2.2%) were Hispanic, com pared to a repr esentation rate of 6.4% Hispanic sales employees in the county. l. Defendants’ Garland, Texas, store, where out of 139 e mployees, 103 (74%) were sales em ployees, and out of those 103 sales em ployees, only five (4.9%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. m. Defendants’ Grapevine, Texas, stor e, where out of 300 e mployees, 148 (49.3%) were sales em ployees, and out of those 148 sales employees, only five (3.4%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. n. Defendants’ Gurnee, Illinois, store, where out of 211 e mployees, 170 (80.6%) were sales em ployees, and out of those 170 sales employees, only seven (4.1%) were Hispanic, com pared to a repr esentation rate of 7.6% Hispanic sales employees in the county. o. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 e mployees, 171 (71.3%) were sales em ployees, and out of those 171 sale s employees, only two (1.2%) were Hispanic, com pared to a representation rate of 2.1% Hispanic sales employees in the county.
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p. Defendants’ Islamorada, Florida, st ore, where out of 63 employees, 49 (77.8%) were sales em ployees, and out of those 49 sales employees, only three (6.1%) were Hispanic, compared to a representation rate of 12.4% Hispanic sales employees in the county. q. Defendants’ Katy, Texas, store, where out of 143 em ployees, 98 (68.5%) were sales employees, and out of those 98 sales employees, only 13 (13.3%) were Hispanic, compared to a representation rate of 18.3% Hispanic sales employees in the county. r. Defendants’ Kodak, Tennessee, store, where out of 217 employees, 162 (74.7%) were sales employees, and out of those 162 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales em ployees in the county. s. Defendants’ Las Vegas, Nevada, stor e, where out of 210 employees, 149 (71%) were sales em ployees, and out of those 149 sales em ployees, only ten (6.7%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county. t. Defendants’ Macon, Georgia, store, where out of 156 employees, 120 (76.9%) were sales employees, and out of those 120 sales employees, not one was Hispanic, compared to a representation rate of .5% Hispanic sales em ployees in the county. u. Defendants’ Memphis, Tennessee, store, where out of 143 employees, 106 (74.1%) were sales employees, and out of those 106 sales employees, not one was Hispanic, compared to a represen tation rate of 1% Hispanic sales em ployees in the county.
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v. Defendants’ Mesa, Arizona, store, where out of 187 e mployees, 134 (71.7%) were sales em ployees, and out of those 134 sales employees, only seven (5.2%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. w. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 151 employees, 109 (72.2%) were sales em ployees, and out of those 109 sales employees, not one was Hispanic, com pared to a representation rate of 1.3% Hispanic sales employees in the county. x. Defendants’ Oklahoma City, Okla homa, store, where out of 155 employees, 118 (76.1%) were sales em ployees, and out of those 118 sales employees, only two (1.7%) were Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county. y. Defendants’ Orlando, F lorida, store, where out of 277 employees, 204 (73.6%) were sales employees, and out of those 204 sales em ployees, only 13 (6.4%) were Hispanic, com pared to a repr esentation rate of 15% Hispanic sales employees in the county. z. Defendants’ Pearl, Mississippi, st ore, where out of 164 employees, 108 (65.9%) were sales employees, and out of those 108 sales employees, not one was Hispanic, compared to a representation ra te of 1.1% Hispanic sales em ployees in the county. aa. Defendants’ Pearland, Texas, store, where out of 205 e mployees, 152 (74.1%) were sales employees, and out of those 152 sales em ployees, only 18 (11.8%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county.
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bb. Defendants’ Prattville, Alabama, store, where out of 193 employees, 137 (71%) were sales em ployees, and out of those 150 sales em ployees, only one (.7%) was Hispanic, com pared to a representation rate of 1.2% Hispanic sales employees in the county. cc. Defendants’ Saint Charles, Missouri, store, where out of 224 em ployees, 178 (79.5%) were sales em ployees, and out of those 178 sale s employees, only one (.6%) was Hispanic, compared to a representation rate of .8 % Hispanic sales employees in the county. dd. Defendants’ San Antonio, Texas, stor e, where out of 197 employees, 145 (73.6%) were sales employees, and out of those 145 sales em ployees, only 61 (42.1%) were Hispanic, compared to a representation rate of 45.6% Hispanic sales employees in the county. ee. Defendants’ Savannah, Geor gia, store, where out of 147 employees, 109 (74.1%) were sales employees, and out of those 145 sales employees, not one was Hispanic, compared to a represen tation rate of 1% Hispanic sales em ployees in the county. 397. Comparing the number of Hispanic sales employees employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Hispanic sales employees in th e county in which each s tore is lo cated (as provid ed for in th e Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 82 Hispanic sales employees in 2007.
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Defendants’ Discriminatory Failure to Hire Hispanic Sales Employees at Defendants’ Retail Stores in 2008 398. According to Defendants’ 2008 E EO-1 reports, out of a total em ployment of 8,410 employees in 49 retail stores, 6,214 (73.9%) employees were sales employees. 399. According to Defendants’ 2008 EE O-1 reports, out of 6,214 sales em ployees in Defendants’ 49 retail stores, only 328 (5.3%) were Hispanic. 400. According to Defendants’ 2008 EE O-1 reports, 35 (71.4%) of Defenda nts’ 49 retail stores had a lower percen tage of Hispanic sales em ployees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Bolingbrook, Illinois, store, where out of 177 employees, 137 (77.4%) were sales em ployees, and out of those 137 sales employees, only two (1.5%) were Hispanic, com pared to a repr esentation rate of 6.4% Hispanic sales employees in the county. b. Defendants’ Broken Arrow, Oklahom a, store, where out of 212 employees, 165 (77.8%) were sales em ployees, and out of those 165 sales employees, only three (1.8%) were Hispanic, compared to a representation rate of 2.9% Hispanic sales employees in the county. c. Defendants’ Cincinnati, Ohio, stor e, where out of 222 employees, 179 (80.6%) were sales employees, and out of those 179 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales em ployees in the county. d. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 172 (68.4%) were sales employees, and out of those 172 sales employees, not one was
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Hispanic, compared to a representation ra te of 1.8% Hispanic sales em ployees in the county. e. Defendants’ Columbia, Missouri, st ore, where out of 98 e mployees, 67 (68.4%) were sales employees, and out of those 67 sales employees, not one was Hispanic, compared to a representation ra te of 1.3% Hispanic sales em ployees in the county. f. Defendants’ Concord, North Carolina, store, where out of 196 e mployees, 136 (69.4%) were sales em ployees, and out of those 136 sale s employees, only two (1.5%) was Hispanic, com pared to a representation rate of 1.8% Hispanic sales employees in the county. g. Defendants’ Council Bluffs, Iowa, store, where out of 165 employees, 123 (74.5%) were sales employees, and out of those 123 sales employees, not one was Hispanic, compared to a representation ra te of 2.2% Hispanic sales em ployees in the county. h. Defendants’ Dania, F lorida, store, where out of 229 employees, 165 (72.1%) were sales employees, and out of those 165 sales em ployees, only 21 (12.7%) were Hispanic, compared to a representation rate of 16.5% Hispanic sales employees in the county. i. Defendants’ Denver, C olorado, store, where out of 198 employees, 145 (73.2%) were sales employees, and out of those 145 sales em ployees, only 11 (7.6%) were Hispanic, com pared to a repr esentation rate of 12% Hispanic sales employees in the county. j. Defendants’ Destin, Florida, store, where out of 99 employees, 73 (73.7%) were sales employees, and out of those 73 sales employees, only two (2.7%) were
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Hispanic, compared to a representation ra te of 3.9% Hispanic sales em ployees in the county. k. Defendants’ Duluth, Georgia, store, where out of 193 employees, 144 (74.6%) were sales em ployees, and out of those 144 sales employees, only two (1.4%) were Hispanic, com pared to a repr esentation rate of 4.3% Hispanic sales employees in the county. l. Defendants’ Ft. Myers, Florida, st ore, where out of 172 e mployees, 131 (73.8%) were sales employees, and out of those 131 sales em ployees, only one (.8%) was Hispanic, com pared to a representation rate of 6.4% Hispanic sales employees in the county. m. Defendants’ Garland, Texas, stor e, where out of 123 em ployees, 97 (78.9%) were sales employees, and out of those 97 sales em ployees, only six (6.2%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. n. Defendants’ Grapevine, Texas, stor e, where out of 291 e mployees, 147 (50.5%) were sales employees, and out of those 147 sales e mployees, only six (4.1%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. o. Defendants’ Gurnee, Illinois, store, where out of 175 e mployees, 139 (79.4%) were sales em ployees, and out of those 139 sales employees, only two (1.4%) were Hispanic, com pared to a repr esentation rate of 7.6% Hispanic sales employees in the county. p. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 e mployees, 168 (71.8%) were sales em ployees, and out of those 168 sale s employees, only
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one (.6%) was Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county. q. Defendants’ Independence, Missouri, store, where out of 166 e mployees, 125 (75.3%) were sales em ployees, and out of those 125 sale s employees, only one (.8%) was Hispanic, compared to a representation rate of 3.2% Hispanic sales employees in the county. r. Defendants’ Islamorada, Florida, st ore, where out of 61 employees, 47 (77%) were sales em ployees, and out of those 47 sales em ployees, only four (8.5%) were Hispanic, compared to a representation rate of 12.4% Hispanic sales employees in the county. s. Defendants’ Katy, Texas, store, where out of 129 em ployees, 95 (73.6%) were sales em ployees, and out of thos e 95 sales em ployees, only eight (8.4%) were Hispanic, com pared to a representation rate of 18.3% Hispanic sales employees in the county. t. Defendants’ Las Vegas, Nevada, stor e, where out of 195 employees, 144 (73.8%) were sales employees, and out of those 144 sales em ployees, only 12 (8.3%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county. u. Defendants’ Macon, Georgia, store, where out of 158 employees, 125 (79.1%) were sales employees, and out of those 125 sales employees, not one was Hispanic, compared to a representation ra te of .5% Hispanic sales em ployees in the county. v. Defendants’ Mesa, Arizona, store, where out of 154 e mployees, 115 (74.7%) were sales employees, and out of those 115 sales em ployees, only 11
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(9.6%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. w. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 136 employees, 97 (71.3%) were sales em ployees, and out of those 97 sales employees, not one was Hispanic, com pared to a representation rate of 1.3% Hispanic sales employees in the county. x. Defendants’ Nashville, Tennessee, store, where out of 196 employees, 138 (70.4%) were sales em ployees, and out of those 109 sales employees, only two (1.4%) were Hispanic, com pared to a repr esentation rate of 1.9% Hispanic sales employees in the county. y. Defendants’ Oklahoma City, Okla homa, store, where out of 130 employees, 98 (75.4%) were sales em ployees, and out of those 98 sales employees, not one was Hispanic, com pared to a representation rate of 4% Hispanic sales employees in the county. z. Defendants’ Olathe, Kansas, store, where out of 156 employees, 114 (73.1%) were sales em ployees, and out of those 114 sales employees, only three (2.6%) were Hispanic, com pared to a repr esentation rate of 4% Hispanic sales employees in the county. aa. Defendants’ Orlando, F lorida, store, where out of 224 employees, 166 (74.1%) were sales employees, and out of those 166 sales em ployees, only 11 (7.2%) were Hispanic, com pared to a repr esentation rate of 15% Hispanic sales employees in the county. bb. Defendants’ Pearl, Mississippi, st ore, where out of 153 employees, 108 (70.6%) were sales employees, and out of those 108 sales employees, not one was
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Hispanic, compared to a representation ra te of 1.1% Hispanic sales em ployees in the county. cc. Defendants’ Pearland, Texas, store, where out of 123 em ployees, 89 (72.4%) were sales em ployees, and out of those 89 sales e mployees, only 14 (15.7%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county. dd. Defendants’ Prattville, Alabama, store, where out of 187 employees, 135 (77.3%) were sales employees, and out of those 135 sales em ployees, only one (.7%) was Hispanic, com pared to a representation rate of 1.2% Hispanic sales employees in the county. ee. Defendants’ Rancho Cucam onga, California, store, where out of 260 employees, 201 (77.3%) were sales em ployees, and out of those 201 sales employees, only 55 (27.4%) were Hispanic, compared to a representation rate of 29.7% Hispanic sales employees in the county. ff. Defendants’ Saint Charles, Missouri, store, where out of 184 em ployees, 142 (77.2%) were sales em ployees, and out of those 142 sale s employees, only one (.7%) was Hispanic, compared to a rep resentation rate of .8% Hispanic sales employees in the county. gg. Defendants’ San Antonio, Texas, stor e, where out of 179 employees, 134 (74.9%) were sales employees, and out of those 134 sales em ployees only 53 (39.6%) were Hispanic, compared to a representation rate of 45.6% Hispanic sales employees in the county. hh. Defendants’ Savannah, Geor gia, store, where out of 118 employees, 84 (71.2%) were sales employees, and out of those 84 sales employees, not one was
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Hispanic, compared to a represen tation rate of 1% Hispanic sales em ployees in the county. ii. Defendants’ Spanish Fort, Alabam a, store, where out of 197 e mployees, 151 (76.6%) were sales em ployees, and out of those 151 sale s employees, only one (.7%) was Hispanic, compared to a representation rate of 1.4% Hispanic sales employees in the county. 401. Comparing the number of Hispanic sales employees employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Hispanic sales employees in th e county in which each s tore is lo cated (as provid ed for in th e Census 2000 Special E EO file) indicates that De fendants had a net shortfall of 116 Hispanic sales employees in 2008.
Defendants’ Discriminatory Failure to Hire Hispanic Sales Employees at Defendants’ Retail Stores in 2009 402. According to Defendants’ 2009 E EO-1 reports, out of a total em ployment of 8,561 employees in 52 retail stores, 6,496 (75.9%) employees were sales employees. 403. According to Defendants’ 2009 EE O-1 reports, out of 6,496 sales em ployees in Defendants’ 52 retail stores, only 317 (4.9%) were Hispanic. 404. According to Defendants’ 2009 EE O-1 reports, 41 (78.8%) of Defenda nts’ 52 retail stores had a lower percen tage of Hispanic sales em ployees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 208 employees, 165 (79.3%) were sales employees, and out of those 165 sales em ployees, only one
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(.6%) was Hispanic, com pared to a representation rate of 1.5% Hispanic sales employees in the county. b. Defendants’ Ashland, Virginia, stor e, where out of 202 em ployees, 161 (79.7%) were sales em ployees, and out of those 161 sales employees, only two (1.2%) were Hispanic, com pared to a repr esentation rate of 1.3% Hispanic sales employees in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 168 employees, 137 (80.7%) were sales em ployees, and out of those 137 sales employees, only two (1.5%) were Hispanic, com pared to a repr esentation rate of 6.4% Hispanic sales employees in the county. d. Defendants’ Branson, Missouri, stor e, where out of 97 employees, 79 (81.4%) were sales employees, and out of those 79 sales employees, not one was Hispanic, compared to a representation rate of .7% Hispanic sales em ployees in the county. e. Defendants’ Cincinnati, Ohio, stor e, where out of 220 employees, 186 (84.5%) were sales employees, and out of those 186 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales em ployees in the county. f. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 173 (77.6%) were sales employees, and out of those 173 sales employees, not one was Hispanic, compared to a representation ra te of 1.8% Hispanic sales em ployees in the county. g. Defendants’ Columbia, Missouri, st ore, where out of 74 e mployees, 50 (67.6%) were sales employees, and out of those 50 sales employees, not one was
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Hispanic, compared to a representation ra te of 1.3% Hispanic sales em ployees in the county. h. Defendants’ Council Bluffs, Iowa, store, where out of 172 employees, 124 (72.1%) were sales employees, and out of those 124 sales em ployees, only one (.8%) was Hispanic, com pared to a representation rate of 2.2% Hispanic sales employees in the county. i. Defendants’ Dania, Florida, store, where out of 233 employees, 177 (76%) were sales em ployees, and out of t hose 177 sales em ployees, only 24 (13.6%) were Hispanic, com pared to a representation rate of 16.5% Hispanic sales employees in the county. j. Defendants’ Denver, C olorado, store, where out of 216 employees, 167 (77.3%) were sales employees, and out of those 167 sales em ployees, only 12 (7.2%) were Hispanic, com pared to a repr esentation rate of 12% Hispanic sales employees in the county. k. Defendants’ Destin, Florida, store, where out of 100 employees, 75 (75%) were sales employees, and out of thos e 75 sales e mployees, only one (1.3%) was Hispanic, compared to a representation ra te of 3.9% Hispanic sales em ployees in the county. l. Defendants’ Duluth, Georgia, store, where out of 182 employees, 138 (75.8%) were sales employees, and out of those 144 sales em ployees, only one (.7%) was Hispanic, com pared to a representation rate of 4.3% Hispanic sales employees in the county. m. Defendants’ Foxborough, Massachusetts , store, where out of 188 employees, 129 (68.6%) were sales em ployees, and out of those 129 sales
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employees, only one (.8%) was Hispanic, co mpared to a represen tation rate of 1.8% Hispanic sales employees in the county. n. Defendants’ Ft. Myers, Florida, st ore, where out of 161 e mployees, 123 (76.4%) were sales em ployees, and out of those 123 sales employees, only two (1.6%) were Hispanic, com pared to a repr esentation rate of 6.4% Hispanic sales employees in the county. o. Defendants’ Garland, Texas, stor e, where out of 115 em ployees, 93 (80.9%) were sales em ployees, and out of those 93 sales employees, only three (3.2%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. p. Defendants’ Grapevine, Texas, stor e, where out of 242 e mployees, 137 (56.6%) were sales employees, and out of those 137 sales e mployees, only six (4.4%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. q. Defendants’ Gurnee, Illinois, store, where out of 144 e mployees, 112 (77.8%) were sales employees, and out of those 112 sales em ployees, only one (.9%) was Hispanic, com pared to a representation rate of 7.6% Hispanic sales employees in the county. r. Defendants’ Hampton, Virginia, store, where out of 145 employees, 118 (81.4%) were sales em ployees, and out of those 118 sales employees, only two (1.7%) were Hispanic, com pared to a repr esentation rate of 2.4% Hispanic sales employees in the county. s. Defendants’ Hanover, Maryland, stor e, where out of 214 employees, 180 (84.1%) were sales em ployees, and out of those 180 sales employees, only three
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(1.7%) were Hispanic, com pared to a repr esentation rate of 2.1% Hispanic sales employees in the county. t. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 e mployees, 144 (73.5%) were sales em ployees, and out of those 144 sale s employees, only one (.7%) was Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county. u. Defendants’ Independence, Missouri, store, where out of 149 e mployees, 111 (74.5%) were sales employees, and out of those 149 sales employees, not one was Hispanic, com pared to a rep resentation rate of 3.2 % Hispanic sales employees in the county. v. Defendants’ Islamorada, Florida, st ore, where out of 55 employees, 43 (78.2%) were sales em ployees, and out of those 43 sales employees, only three (7%) were Hispanic, compared to a repres entation rate of 12.4% Hispanic sales employees in the county. w. Defendants’ Katy, Texas, store, where out of 125 em ployees, 98 (78.4%) were sales employees, and out of those 98 sales employees, only 13 (13.3%) were Hispanic, compared to a representation rate of 18.3% Hispanic sales employees in the county. x. Defendants’ Las Vegas, Nevada, stor e, where out of 164 employees, 122 (74.4%) were sales em ployees, and out of those 122 sales employees, only eight (6.6%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county. y. Defendants’ Leeds, Alabam a, store, where out of 218 e mployees, 171 (78.4%) were sales employees, and out of those 171 sales employees, not one was
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Hispanic, compared to a representation rate of .7% Hispanic sales em ployees in the county. z. Defendants’ Macon, Georgia, store, where out of 137 employees, 103 (75.2%) were sales employees, and out of those 103 sales employees, not one was Hispanic, compared to a representation rate of .5% Hispanic sales em ployees in the county. aa. Defendants’ Manteca, California, store, where out of 186 employees, 134 (72%) were sales em ployees, and out of those 134 sales em ployees, only 15 (11.2%) were Hispanic, compared to a representation rate of 18.4% Hispanic sales employees in the county. bb. Defendants’ Mesa, Arizona, store, where out of 155 e mployees, 120 (77.4%) were sales em ployees, and out of those 120 sales employees, only nine (7.5%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. cc. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 131 employees, 99 (75.6%) were sales em ployees, and out of those 99 sales employees, not one was Hispanic, com pared to a representation rate of 1.3% Hispanic sales employees in the county. dd. Defendants’ Nashville, Tennessee, store, where out of 181 employees, 135 (74.6%) were sales employees, and out of those 135 sales employees, not one was Hispanic, compared to a representation ra te of 1.9% Hispanic sales em ployees in the county. ee. Defendants’ Oklahoma City, Okla homa, store, where out of 146 employees, 113 (77.4%) were sales em ployees, and out of those 113 sales
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employees, not one was Hispanic, com pared to a representation rate of 4% Hispanic sales employees in the county. ff. Defendants’ Olathe, Kansas, store, where out of 128 employees, 97 (75.8%) were sales employees, and out of those 97 sales em ployees, only two (2.1%) were Hispanic, com pared to a repr esentation rate of 4% Hispanic sales employees in the county. gg. Defendants’ Orlando, F lorida, store, where out of 214 employees, 161 (75.2%) were sales em ployees, and out of those 161 sales employees, only nine (5.6%) were Hispanic, com pared to a repr esentation rate of 15% Hispanic sales employees in the county. hh. Defendants’ Pearl, Mississippi, st ore, where out of 159 employees, 105 (66%) were sales em ployees, and out of those 105 sales employees, not one was Hispanic, compared to a representation ra te of 1.1% Hispanic sales em ployees in the county. ii. Defendants’ Pearland, Texas, store, where out of 124 em ployees, 91 (73.4%) were sales em ployees, and out of those 91 sales e mployees, only 15 (16.5%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county. jj. Defendants’ Prattville, Alabama, store, where out of 148 employees, 106 (71.6%) were sales employees, and out of those 106 sales em ployees, only one (.9%) was Hispanic, com pared to a representation rate of 1.2% Hispanic sales employees in the county. kk. Defendants’ Rancho Cucam onga, California, store, where out of 260 employees, 204 (78.5%) were sales em ployees, and out of those 204 sales
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employees, only 42 (20.6%) were Hispanic, compared to a representation rate of 29.7% Hispanic sales employees in the county. ll. Defendants’ Saint Charles, Missouri, store, where out of 187 em ployees, 153 (81.8%) were sales em ployees, and out of those 153 sale s employees, only one (.7%) was Hispanic, compared to a representation rate of .8 % Hispanic sales employees in the county. mm. Defendants’ San Antonio, Texas, stor e, where out of 154 employees, 118 (76.6%) were sales employees, and out of those 118 sales em ployees only 44 (37.3%) were Hispanic, compared to a representation rate of 45.6% Hispanic sales employees in the county. nn. Defendants’ Savannah, Geor gia, store, where out of 117 employees, 85 (72.6%) were sales employees, and out of those 117 sales employees, not one was Hispanic, compared to a represen tation rate of 1% Hispanic sales em ployees in the county. oo. Defendants’ Spanish Fort, Alabam a, store, where out of 177 e mployees, 145 (81.9%) were sales employees, and out of those 145 sales employees, not one was Hispanic, com pared to a rep resentation rate of 1.4 % Hispanic sales employees in the county. 405. Comparing the number of Hispanic sales employees employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic sales employees in th e county in which each s tore is lo cated (as provid ed for in th e Census 2000 Special E EO file) indicates that De fendants had a net shortfall of 143 Hispanic sales employees in 2009.
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Defendants’ Discriminatory Failure to Hire Hispanic Sales Employees at Defendants’ Retail Stores in 2010 406. According to Defendants’ 2010 E EO-1 reports, out of a total em ployment of 8,839 employees in 52 retail stores, 6,820 (77.2%) employees were sales employees. 407. According to Defendants’ 2010 EE O-1 reports, out of 6,820 sales em ployees in Defendants’ 52 retail stores, only 381 (5.6%) were Hispanic. 408. According to Defendants’ 2010 EE O-1 reports, 37 (71.2%) of Defenda nts’ 52 retail stores had a lower percen tage of Hispanic sales em ployees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 189 employees, 141 (74.6%) were sales em ployees, and out of those 141 sales employees, only two (1.4%) were Hispanic, com pared to a repr esentation rate of 1.5% Hispanic sales employees in the county. b. Defendants’ Auburn, New York, store, where out of 139 employees, 115 (82.7%) were sales employees, and out of those 115 sales em ployees, only one (.9%) was Hispanic, com pared to a representation rate of 1.4% Hispanic sales employees in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 170 employees, 136 (80%) were sales em ployees, and out of those 136 sales employees, only three (2.2%) were Hispanic, com pared to a repr esentation rate of 6.4% Hispanic sales employees in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 173 em ployees, 140 (80.9%) were sales em ployees, and out of those 140 sale s employees, only
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three (2.1%) were Hispanic, com pared to a representation rate of 2.2% Hispanic sales employees in the county. e. Defendants’ Branson, Missouri, stor e, where out of 105 em ployees, 86 (81.9%) were sales employees, and out of those 86 sales employees, not one was Hispanic, compared to a representation ra te of .7% Hispanic sales em ployees in the county. f. Defendants’ Cincinnati, Ohio, stor e, where out of 208 employees, 175 (84.1%) were sales employees, and out of those 175 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales em ployees in the county. g. Defendants’ Clarksville, Indiana, store, where out of 234 employees, 184 (78.6%) were sales employees, and out of those 184 sales employees, not one was Hispanic, compared to a representation ra te of 1.8% Hispanic sales em ployees in the county. h. Defendants’ Columbia, Missouri, st ore, where out of 98 e mployees, 71 (72.4%) were sales employees, and out of those 71 sales employees, not one was Hispanic, compared to a representation ra te of 1.3% Hispanic sales em ployees in the county. i. Defendants’ Dania, F lorida, store, where out of 227 employees, 173 (76.2%) were sales employees, and out of those 173 sales em ployees, only 24 (13.9%) were Hispanic, compared to a representation rate of 16.5% Hispanic sales employees in the county. j. Defendants’ Denver, C olorado, store, where out of 206 employees, 159 (77.2%) were sales employees, and out of those 159 sales em ployees, only 11
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(6.9%) were Hispanic, com pared to a repr esentation rate of 12% Hispanic sales employees in the county. k. Defendants’ Destin, Florida, stor e, where out of 106 employees, 82 (77.4%) were sales em ployees, and out of those 82 sales em ployees, only one (1.1%) was Hispanic, com pared to a repr esentation rate of 3.9% Hispanic sales employees in the county. l. Defendants’ Duluth, Georgia, store, where out of 183 employees, 141 (77%) were sales em ployees, and out of those 141 sales employees, only three (2.1%) were Hispanic, com pared to a repr esentation rate of 4.3% Hispanic sales employees in the county. m. Defendants’ Foxborough, Massachusetts , store, where out of 190 employees, 130 (68.4%) were sales em ployees, and out of those 130 sales employees, only one (.8%) was Hispanic, co mpared to a represen tation rate of 1.8% Hispanic sales employees in the county. n. Defendants’ Ft. Myers, Florida, st ore, where out of 157 e mployees, 120 (76.4%) were sales em ployees, and out of those 120 sales employees, only five (4.2%) were Hispanic, com pared to a repr esentation rate of 6.4% Hispanic sales employees in the county. o. Defendants’ Garland, Texas, store, where out of 134 e mployees, 106 (79.1%) were sales em ployees, and out of those 106 sales employees, only four (3.8%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. p. Defendants’ Grapevine, Texas, stor e, where out of 290 e mployees, 191 (65.9%) were sales employees, and out of those 191 sales e mployees, only six
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(3.1%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. q. Defendants’ Gurnee, Illinois, store, where out of 159 e mployees, 129 (81.1%) were sales employees, and out of those 129 sales employees, not one was Hispanic, compared to a representation ra te of 7.6% Hispanic sales em ployees in the county. r. Defendants’ Hampton, Virginia, store, where out of 155 employees, 123 (79.4%) were sales em ployees, and out of those 123 sales employees, only two (1.6%) were Hispanic, com pared to a repr esentation rate of 2.4% Hispanic sales employees in the county. s. Defendants’ Hanover, Maryland, stor e, where out of 225 employees, 191 (84.9%) were sales em ployees, and out of those 191 sales employees, only two (1%) were Hispanic, com pared to a repr esentation rate of 2.1% Hispanic sales employees in the county. t. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 e mployees, 147 (72.4%) were sales em ployees, and out of those 147 sale s employees, only two (1.4%) were Hispanic, com pared to a representation rate of 2.1% Hispanic sales employees in the county. u. Defendants’ Independence, Missouri, store, where out of 153 e mployees, 122 (79.7%) were sales employees, and out of those 122 sales employees, not one was Hispanic, com pared to a rep resentation rate of 3.2 % Hispanic sales employees in the county. v. Defendants’ Islamorada, Florida, st ore, where out of 57 employees, 46 (80.7%) were sales employees out of those 46 sales employees, only five (10.9%)
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were Hispanic, com pared to a representation rate of 12.4% Hispanic sales employees in the county. w. Defendants’ Katy, Texas, store, where out of 120 em ployees, 92 (76.7%) were sales employees, and out of those 92 sales em ployees, only 11 (12%) were Hispanic, compared to a representation rate of 18.3% Hispanic sales employees in the county. x. Defendants’ Las Vegas, Nevada, stor e, where out of 155 employees, 113 (72.9%) were sales employees, and out of those 113 sales e mployees, only ten (8.8%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county. y. Defendants’ Leeds, Alabam a, store, where out of 182 e mployees, 145 (79.7%) were sales employees, and out of those 145 sales employees, not one was Hispanic, compared to a representation rate of .7% Hispanic sales em ployees in the county. z. Defendants’ Manteca, California, store, where out of 225 employees, 179 (79.6%) were sales employees, and out of those 179 sales em ployees, only 24 (13.4%) were Hispanic, compared to a representation rate of 18.4% Hispanic sales employees in the county. aa. Defendants’ Mesa, Arizona, store, where out of 154 e mployees, 118 (76.6%) were sales em ployees, and out of those 118 sales employees, only seven (5.9%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. bb. Defendants’ Myrtle Beach, South Ca rolina, store, where out of 135 employees, 105 (77.8%) were sales em ployees, and out of those 105 sales
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employees, only one (1%) was Hispanic, com pared to a representation rate of 1.3% Hispanic sales employees in the county. cc. Defendants’ Oklahoma City, Okla homa, store, where out of 152 employees, 114 (75%) were sales e mployees, and out of those 114 sales employees, only one (.9%) was Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county. dd. Defendants’ Orlando, F lorida, store, where out of 205 employees, 155 (75.6%) were sales employees, and out of those 155 sales e mployees, only ten (6.5%) were Hispanic, com pared to a repr esentation rate of 15% Hispanic sales employees in the county. ee. Defendants’ Pearl, Mississippi, st ore, where out of 149 employees, 96 (64.4%) were sales employees, and out of those 96 sales employees, not one was Hispanic, compared to a representation ra te of 1.1% Hispanic sales em ployees in the county. ff. Defendants’ Pearland, Texas, store, where out of 150 e mployees, 117 (78%) were sales em ployees, and out of those 117 sales em ployees, only 19 (16.2%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county. gg. Defendants’ Prattville, Alabam a, store, where out of 130 em ployees, 95 (73.1%) were sales employees, and out of those 95 sales employees, not one was Hispanic, compared to a representation ra te of 1.2% Hispanic sales em ployees in the county. hh. Defendants’ Rancho Cucam onga, California, store, where out of 281 employees, 232 (82.6%) were sales em ployees, and out of those 281 sales
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employees, only 46 (19.8%) were Hispanic, compared to a representation rate of

29.7% Hispanic sales employees in the county.

ii. Defendants’ Saint Charles, Missouri, store, where out of 190 em ployees,

156 (82.1%) were sales em ployees, and out of those 156 sale s employees, only

one (.6%) was Hispanic, compared to a representation rate of .8 % Hispanic sales

employees in the county.

jj. Defendants’ Savannah, Geor gia, store, where out of 113 employees, 84

(74.3%) were sales employees, and out of those 84 sales employees, not one was

Hispanic, compared to a represen tation rate of 1% Hispanic sales em ployees in

the county.

kk. Defendants’ Spanish Fort, Alabam a, store, where out of 192 e mployees,

157 (81.8%) were sales employees, and out of those 157 sales employees, not one

was Hispanic, com pared to a rep resentation rate of 1.4 % Hispanic sales

employees in the county.

409. Comparing the number of Hispanic sales employees employed by Defendants (as

specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of

Hispanic sales employees in th e county in which each s tore is lo cated (as provid ed for in th e

Census 2000 Special E EO file) indicates that De fendants had a net shortfall of 128 Hispanic

sales employees in 2010.

DEFENDANTS HAVE DENIED EMPLOYMENT TO HISPANIC APPLICANTS AT STORES NATIONWIDE

410. Plaintiff re-alleges and incorporates by re ference paragraphs 1 to 409 above as if

set forth fully herein.

411. As discussed in paragraphs 412 to

429 below, Defe ndants have denied

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employment to at least hundreds of individual Hi spanic applicants based on their national origin including, but not lim ited to, the individuals list ed below, and all persons in like or related circumstances. The individuals w ere denied employment based on their national origin at numerous of Defendants’ stores and from 2005 or earlier to the present.
412. Maria Jimenez is Hispanic. In the su mmer of 2011, she attended a job fair that was being held in anticipation of the opening of the East P eoria, Illinois store. Jim enez had many years of experience as a cas hier and cu stomer service representative when she applied. Defendants did not hire Jimenez.
413. Elizabeth Solis is Hispanic. In 2005 or 2006, she applied to the Katy, Texas store. Defendants did not hire Solis.
414. Charles Diaz is Hispanic. He applied in person to the Savannah, Georgia store in the summer of 2006 a nd again during the su mmer of 2008. Diaz had hunting and fishing experience and was ab le to p rovide personal references from people already em ployed at the Savannah store. Current employees told Diaz that the store had openings around the second time he applied. Diaz also f ollowed up on his app lication by visiting or telephoning the store on several occasions. During his visi ts to the stor e, Diaz repeatedly observed that the m ajority of employees were White unlike other retail stores in the same geographic area such as Target and Home Depot. Diaz was never hired by Defendants.
415. Jorge Luis Berber is H ispanic. He applied to the Katy, Texas store around October 2005. Defendants did not hire Berber.
416. Luis Berber is Hispanic. He had stoc king, hunting, and fishing experience when he applied to the Katy, Texas st ore in October 2005. After he co mpleted the application, he had to wait a long tim e to speak to a m anager. An em ployee eventually looked at Berber’s application, chuckled, a nd told him that som eone would call him if a position w as available.
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When Berber called to follow up on his application and asked to speak to a manager, he was told that no manager was av ailable to sp eak to h im, or that that they were reviewing applications. Defendants did not hire Berber.
417. Gilma Delgado is Hispanic. She had stoc king experience when she applied to the Katy, Texas store around September 2006. She prev iously had applied in 2002 and did not hear back at that tim e. When Delgado followed up on her 2006 application a couple of weeks later, an employee told her that if no one had contacted her, they we re not going to hire her. Defendants did not hire Delgado.
418. Ricky Ruiz is Hispanic and Black. He applied to the Bolingbrook, Illinois store in late 2008. He contacted the store a few tim es regarding his application, but was never contacted or hired by Defendants.
419. Gregory Perez is Hispanic. He had sale s and customer service experience when he applied twice to the Bolingbrook, Illinois, store, including in August 2007. When he called to follow up on his application, he was told that the position had already been filled, and that he was “overqualified.” Defendants did not hire Perez.
420. Wayne Espinoza is Hispanic. He had ex tensive experience as a fish erman and had a captain' s license when he applied to work in the Fishing departm ent at the Hampton, Virginia store on three occasions. He app lied around November 2010, January 2011, and again around June 2011. Espinoza never r eceived a call back for an interv iew and was never hired by Defendants.
421. Veronica Jara is Hispanic. Jara had te n years of hum an resources experience when she responded to an ad she s aw online in June 2011 for a Human Resources position in the Bolingbrook, Illinois store. She was not hired by Defendants.
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422. Robert Flores is Hispanic. He app lied to the Savannah, Georgia store around March 2008. He had previously applied on-line in 2006. He was not hired by Defendants.
423. Esmeralda Lopez is Hispanic. She had stockin g experience when she subm itted an online application to work at the Savannah, Georgia store in March 2007. Defendants did not hire Ms. Lopez.
424. Antonio Nieto is Hispanic and has dark skin. He had extensive hunting and archery experience and had worked at another sports and outdoor goods store when he applied online in early 2011 for a position at the Harlinge n, Texas store. In la te August or Septem ber 2011, he attended a job fair and was interviewed twi ce. He was told that he would be called. Nieto followed up frequently by te lephone after the inte rviews, and an em ployee told him that the store had done all its hiring. Defendants did not hire Nieto.
425. Gabriel Ybarra is Hispanic. W hen he applied at the Bolingbrook, Illinois store in May 2008, he listed on his appl ication that his hobbi es and interests included fishing and outdoors and that he had experience as a cashier. He handed his application to a White employee at the store. He called to follow up on his app lication and also went to the store to speak to a manager about his pending application and both tim es was told that his application was “being processed.” Defendants did not interview or hire Ybarra.
426. Andraya Bennett is His panic. She applied to the Pearl, Mississ ippi store in May 2007. While shopping at the store, she was told th at the store was hiring. On her application, she listed six years of s ales/customer service experience, and listed her fishing, hunting, and camping experience. Defendants did not interview or hire Bennett.
427. Victor Mejias is His panic. M ejias had years of expe rience, including management experience, selling fishing supplie s when he applied to the Bolingbrook, Illinois store in April 2007. His applica tion also listed extensive experience in hunting, fishing, boating,
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and camping. He previously had applied onlin e in March 2007. W hen his previous sporting goods store e mployer announced that it would be closing, Mejias and two non-Hispanic employees from that store applied at the Boli ngbrook store. The non-Hispanics were both hired while Mejias was not hired or even given an inte rview. Mejias had been the m anager of the two employees hired by Defendants, and all three belonged to the Riverside Fi shing Club. Later, another non-Hispanic member of the Riverside Fishing Club was hi red at the store. Defendants never hired Mejias.
428. Watson Falzarano is Hispanic. Falzar ano had an associate’s d egree and experience as a driver and in f ood service when he applied to th e Orlando, Florida store in July 2007. He also indicated on his application that he had experience in about seven different outdoor activities. When he turned in his applic ation, he was told the st ore was not hiring, even though he had just been told elsewhere that De fendants were hiring. H e observed no Black or Hispanic employees at the store. Defendants did not hire Falzarano.
429. Cynthia Selent is Hispanic. Around th e summer of 2007, she applied for a Human Resources/Trainer position at the Prattville, Alabama, store, which had not yet opened. She had an initial job interview at a local hotel and a second intervie w with a Regional Hum an Resources Manager. She informed the second interviewer that she was bi-lingual in English and Spanish. The interviewer asked if she had learned Spanish in school , and she replied that she is Hispanic and that her mother was from Puerto Rico and her father from Argentina. She explained that she learned Spanish and English together as she was growing up. The interviewer folded his arms, sat back, and the interv iew was then cut short. After not hearing back, Selent returned to the hotel and asked the man with whom she had interviewed if the position was still vacant, and he told her they had hired someone else. Defendants did not hire Selent.
430. The effect of the practices com plained of in paragraphs 14 to 429 above has been
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to deprive Black and Hispanic applicants of equal em ployment opportunities and to otherwise adversely affect their status as applicants because of their race and/or national origin.
COUNT TWO: UNLAWFUL RETALIATION 431. Plaintiff re-alleges and incorporates by re ference paragraphs 1 to 430 above as if set forth fully herein. 432. Defendants have unlawfully retaliated against employees who opposed practices that they reasonably perceived to violate Title VII, in violation of Section 704 of Title VII, 42 U.S.C. § 2000e-3(a). Defendants’ retaliatory acts against such employees have included, but are not limited to, altering the term s, conditions, or privileges of their em ployment; bringing false allegations against them; subjecting them to heightened scrutiny; subjecting them to a retaliatory hostile work environment; and firing or construc tively discharging them, or otherwise inducing their resignations. 433. As described in detail in paragraphs 39 to 125, the culture of discrim ination is rooted in top corporate m anagement and im plemented in m any ways by Defendants’ heavily centralized Human Resources department. 434. Director of Human Resources for retail stores, Brent Day, plays a leading role in the hiring of Store General Managers and in th e sourcing, interviewin g, and hiring of Store Human Resources Managers nationwide. 435. Day is also responsible for the overall investigation of discrim ination claims arising in the stores. Many em ployees with employment discrimination complaints are told by Store Human Resources Managers to call “Cor porate HR,” to report their discrimination complaints.
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436. In the experience of many employees, Day frequently does not investigate or refer complaints to one of the Regional H uman Resources Managers unless the com plaining party is extremely persistent.
437. Day is aware of the retaliatory clim ate in Defendants’ stor es. A Maintenance Manager and a Loss Prevention Team Lead in Katy, Texas, reported to Day in October 2006 that the Store General Manager threatened to retaliat e against her employees if they complained to the “Corporate Office” about her. The Loss Prevention Team Lead further repo rted to Day that the Store General Manager told her employees that if they contacted the “Corporate Office,” she would find out and the employee would be terminated.
438. Defendants discourage complaints and retaliate against those who make them. Defendants’ Retaliation Against Managers
439. Several store m anagers, including S tore Human Resources Managers, who have challenged Defendants’ policy of not hiring Black or Hispanic applicants, have been unlawfully terminated, constructively discharg ed, or otherwise subjected to retaliation. At tim es, those managers have directly confronted Brent Day w ith evidence of discrim inatory hiring practices, but he has not investigated thei r contentions. At other tim es, those managers have directly confronted a Regional Hum an Resources Manager, such as Jill Kl imas or John S argent, with their evidence of discriminatory hiring practices, but these Regional Human Resources Managers have either urged the complaining party to desist or they have not investigated the contentions.
440. For example, the Assistant General Manager for the Islam orada Fish Com pany Restaurant in the Broke n Arrow, Oklahoma, store was ter minated in retaliation f or complaining about derogatory and racially offensive comm ents that the Restaurant General Manager, Brian Goforth, made about applicants during a job fair.
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441. Within days of reporting th e racist and otherwise discri minatory comments to the Store Human Resources Manager, as well as to other managers, Defendants fired the Assistant General Manager. He was told that based on his comm ents and com plaints, “we don’t think you’re a good fit for the com pany and we’re going to have to ask you to leave.” The Assistant General Manager informed Day about his termin ation and sent him an e-mail documenting the discrimination. Defendants did nothing.
442. Defendants also retaliated agains t the Human Resources Manager for the Pearl, Mississippi, store for engaging in protected activity.
443. Managers at the Pearl s tore asked the Human Resources Manager to fabricate employee write-ups, so the m anagers could later terminate the employees. On one occasion, a manager asked the Hum an Resources Manager to fabricate two write-ups for a Black cashier whom the m anager referred to as a “nigger. ” The Hum an Resources Manager refused and reported the incident to Brent Day.
444. On another occasion, th e Pearl Sto re General Manager, P at Renegar, prohibited the Human Resources Manager from hiring a Black, disab led applicant in a wheelchair. Once more, the Human Resources Manager reported this incident to Brent Day as well as other racial conduct, attitudes, and statem ents of m anagers in the store. Defendants took no action in response to these complaints.
445. The Human Resources Manager once recomm ended that they recruit a particular Black female he knew with hum an resources experience to work in the Hum an Resources department. Rather than considering the quali fied applicant, Store General Manager Renegar asked what the applicant’s race was, and instead hired a young, less experienced, White female.
446. When the Hum an Resources M anager continued to r efuse to pa rticipate in discrimination, Defendants elim inated some of hi s duties. He was no longer allowed to be
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involved in som e of the store hiring. In March 2005, Renegar warned the Hum an Resources Manager that “it’s 5 agai nst 1. And you’re the 1.” Renegar suggested that he work on his off days for free to assist other managers with their departments. Shortly after the Human Resources Manager refused, Renegar accused him of allegedly sexually harassing a fem ale employee and using racial slurs. Renegar o ffered no details or inform ation about the accusations or their source.
447. The Human Resources Manager w as offered the choice of resigning or being terminated. He resigned.
Retaliation Against Non-Managerial Employees 448. Similarly, when non-managerial employees complain of discriminatory practices and retaliation by store managers, Day has failed to take remedial action. Despite prom ising that he will advise the current or former employee of the outcome of the purported inv estigation, he rarely does so. 449. Additionally, when non-m anagerial employees complain of discrim inatory practices within their stores, they are terminated or otherwise subjected to adverse actions which would dissuade a reasonable employee from complaining. 450. For example, Defendants retaliated agai nst a “PACE” e mployee for engaging in protected activity at their Spanish Fort, Alabama, store. In late 2010, the PACE e mployee and a Black colleague were called “worthless niggers” by a White co-worker. A White Lead employee complained of this slur to the Store Hum an Resources Manager. The Hum an Resources Manager discredited th e complaint after the a ccused employee denied m aking the slur. The manager did not sustain the alle gation that a racial slur had been directed ag ainst Black employees, did not conduct a thor ough investigation of the complaint, and did not interview any other witnesses.
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451. The PACE employee was then called “nigger” by another co-worker. The Human Resources Manager again, without interviewing any other witne sses, failed to sustain that complaint because this second accused White worker also denied making the slur.
452. In the m onths after the PACE employ ee filed a discrim ination complaint, Defendants did not call her back to work under the PACE program or consider her for other open positions.
Retaliatory Climate 453. A retaliatory climate permeates many st ores and discourages em ployees from complaining about employm ent discrimination and from obtaining any relief from the discrimination. 454. Several employees in Defendants’ Clarksville , Indiana, s tore feared th at if they made a complaint, they would be terminated or othe rwise subjected to re taliation. They also learned that their com plaints were not kept conf idential by either sto re managers or Corporate Human Resources Managers. 455. Employees discovered that messages left on the nationwide “hotline” in corporate headquarters were not kept confidential, and in some instances, Corporate Hum an Resources would help store m anagers identify employees who had complained anonym ously, so that they could be disciplined or terminated. 456. For example, a former Visual Manager for the Clarksville s tore called Corporate anonymously several tim es to voice concerns of misconduct. Shor tly after making her complaints, the Cla rksville General Manager, Mike Benningfield, adm onished staff to not complain. 457. The Visual Manager nevertheless then complained to the Region al Human Resources Manager, John Sargent, about how Benningfield, another m anager, and the store
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Human Resources Manager were covering up em ployee complaints by sending out em ails to managers instructing them to support the offending m anagers and deny any wrongdoing. She also complained to Sargent about retaliation an d sex and race discrim ination in the Clarksville store. The Visual Manager was laid off in January 2009.
Complaints Discouraged 458. Those employees who did com plain to regional or corporate Hum an Resources were rebuffed and/or subjected to adverse employment actions. 459. An employee who co mplained to Jill Klimas, Regional Hum an Resources Manager, about race and sex discri mination in the Bossier City, Loui siana, store was told not to act like a “victim.” 460. Defendants discourage complaints at the stor e, regional, and corporate levels. In the fall of 2007, for example, an Operations Mana ger in Garland, Texas complained to her Store Human Resources Manager about a sexually hostile work environm ent created by her General Manager. The Store Human Resources Manager immediately informed the General Manager of the complaint against him, and the General Manager then retaliated against the em ployee. The aggrieved employee then complained to a regional manager, which resulted in no action by Defendants. The em ployee finally com plained directly to Day. He question ed if she really wanted to file a complaint, noting that it would take time and people away from their jobs. 461. Another employee was considered “trouble” for making complaints. During a job fair, the Ge neral Manager for the Pearl s tore told the Stor e Human Resources Manager not to talk with an employee from another store becau se that em ployee’s General Manag er had said that the employee was “stirring u p trouble” at his sto re. The Human Resources Manag er understood this to be because the employee was complaining about sexual harassm ent and the
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racial imbalance in the store. The em ployee who was “stirring up tr ouble” was subjected to adverse employment terms and later terminated.
462. Further illustrative examples of such retaliatio n include, b ut are no t limited to, retaliation against the following individuals:
Demar Watson 463. Defendants retaliated against Demar Watson, Store Human Resources Manager at the Bossier City, Louisiana, store, for engagi ng in protected activit y. After W atson opposed other managers’ unlawful discrimination, participated in EEO C’s investigation, and participated in an internal investigation of the Bossier City store, Defendants wrote Watson up and gave him a negative perform ance evaluation. The eval uation noted, “The EE OC investigation was a disaster.” Furthermore, after Watson terminated an employee for making derogatory comments in the store about race, sex, a nd age concerning another employ ee, as well as m aking threats, Defendants terminated Watson in retaliation. 464. When Watson became the Store Human Resources Manager in October 2006, he began investigating several pe nding complaints, including sexual harassm ent complaints. Watson reported on his investigations to Day. 465. Watson also became aware of racial comme nts that had been m ade by managers, including the Bossier City Store General Manager, Ed Billingsley. For example, Watson learned that Billingsley had told another m anager, “we don’t hire that type of individual here” in reference to a Black, pregnant Cashier. 466. In the summ er of 2007, W atson became aware that Assis tant General Manager Richard Wisher did not want him to hire Black applicants. Wisher made comments about the number of Black applicants W atson interviewed numerous times, including inform ing Watson that “we’re hiring too many niggers.”
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467. On one occasion, when Watson was interviewing a Black candidate for a position, Wisher made a throat slashing gesture while walking by Watson’s office. After the interview, Watson asked Wisher what he had meant by the gesture. Wisher responded, “that’s not the kind of individual we want” and said “they don’t fit our profile.”
468. Watson informed Wisher that his ra cially offensive behavior was inappropriate. Watson also informed Billingsley about Wisher’s behavior.
469. In 2008, Watson hired a Black applicant as a Cashier. W isher referred to the Cashier as an “EE-OCK,” apparently a phonetic ally pronounced acronym or nicknam e for EEOC, and informed Watson he considered her an EEOC “plant.”
470. In February 2008, EEOC conducted interviews in Bossier City, Louisiana. EEOC investigators interviewed Watson for several hours.
471. After EEOC’s investigation at the store, Defendants hired a third-party consulting firm to conduct interviews in the store. The co nsultant also interviewed W atson. Jami Roper, Regional Human Resources Manager, was there for part of the investigation. During his interview, Watson shared information about the allegations of racial comm ents made by managers.
472. In June 2008, Roper wrote up W atson for alleged “loss of c onfidence” and for purportedly failing to follow com pany procedures in disclosing in formation. The reasons given for the write-up were false and were a pretex t for unlawful retaliatio n. The write-up was an adverse action that would dissu ade a reasonable person from opposing practices illegal under Title VII o r from otherwise par ticipating in investigations concerning alleged Title VII violations.
473. Watson sent Day a letter refuting the write-up.
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474. In March 2009, Day sent W atson his evaluation for the 2008. He gave Watson a rating of “unacceptable.” Day inform ed Watson that “the EEOC investigation was a disaster.” Thus, Defendants clearly took acti on against Watson for participating in an investigation of alleged violations of Title VII. W atson’s previous annual reviews had al ways met or exceeded expectations. As a result of th is rating, Watson did not receive a raise that year. T he negative evaluation and lack of a raise were adverse actions that would dissuade a reasonable person from opposing practices illegal under Title VII or f rom otherwise participati ng in investigations concerning alleged Title VII violations.
475. Watson refuted the evaluation. 476. In 2008, Shawn Humpert transferred to th e Bossier City store from Oklahoma City to be the new Store General Manager. 477. On one occasion, W atson recommended a Black app licant for the p osition of Fishing Team Lead. Hum pert refused to interview him, saying he was not qualified. W atson disagreed and felt he w as fully qualified. Hump ert interviewed only W hite candidates for the position. 478. In August 2011, an employee in the Bossier City store complained to Watson that he was being harassed by another employee. The alleged harassm ent included comments about his age and sexual o rgans, as well as threats. Watson investigated the com plaint and took witness statements. He discovered that the a lleged harasser had also made a racially derogatory comment about another associate. 479. Watson provided all of the inform ation and witness statements to Day, found the allegations to have merit, and recommended that the harasser be terminated. On August 9, 2011, Day authorized the termination.
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480. Following the term ination, Humpert, the S tore General Manager, complained about the termination to Day.
481. Day approached W atson at a job fair in Harlingen, Texas to discuss the termination of the associate for discrim inatory behavior. Watson confirmed that he had spoken with Humpert about his investigat ion and reminded Day that he had authorized the term ination. Watson also agreed to speak with Humpert about it again.
482. When Watson returned to th e Bossier City store, he spok e with Hum pert again about the reasons for the termination.
483. Watson also sent an e-m ail to his assist ant indicating that he would not have someone in the store m aking threats and disc riminatory comments and could not support Humpert doing so.
484. A few weeks later, on September 7, 2011, Day terminated Watson purportedly for “poor judgment” and “loss of confidence.” Just the year before in W atson’s March 2010 performance evaluation, Day noted that W atson was “a good decision maker” and “uses sound judgment.” Defendants discharged W atson for participating in an EEOC and internal investigation, opposing practices made unlawful under Title VII, and/or for otherwise engaging in activity protected by the statute.
Laura Tarr 485. Starting in 2008, Defendants retaliated against Loss Prevention Agent Laura Tarr for engaging in protected activity at the Clarksville, Indiana, store. 486. Bass Pro hired Tarr to work as a Loss Prevention Agent in September 2008. 487. Tarr’s supervisors were Allen Bram er, Lead Loss Preve ntion Agent, and Rod Merten, Loss Prevention Manager.
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488. In approximately late October or early Novem ber 2008, Tarr com plained to the Store Human Resources Manager, Mary Vaughn, that another Loss Prevention Agent, John Comer, was sexually harassing her.
489. Tarr told Vaughn about Com er’s harassment, which included the following conduct: sending Tarr text messages of himself naked; suggesting that they have sex in m ultiple places, including in a storage closet within the store; tak ing a picture of Tarr’s behind while she was bent over; refusing to trad e days with T arr unless she w ould come to his hom e and “get naked”; and misleadingly telling other em ployees that Tarr had sent him a picture of her breast. Before complaining to Vaughn, Tarr informed Comer that she objected to his harassment.
490. Vaughn asked Tarr to provide her com plaint in writing. Tarr hand-wrote and signed her com plaint in Vaughn’s presence. Va ughn stated that she would tell the General Manager, Mike Benningfield.
491. Vaughn reported the complaint to the Loss Prevention Manager, Merten. 492. Within a week after making the complaint, Loss Prevention Manager M erten and Lead Loss Prevention Agent Bram er called Tarr in to Merten’s office, which also functioned as the store’s “interrogation room ,” where Loss P revention agents question people suspected of shoplifting. Vaughn was not present. Merten sat as his desk in front of Tarr, while Bramer stood behind her, between Tarr and the door. The su pervisors reproached he r for approxim ately 45 minutes, creating an environm ent which Tarr fo und hostile. They harshly adm onished her and said she should never have com plained about Comer to Hum an Resources. They discouraged her from going to Human Resources again. As a result o f and in response to Tarr’s hav ing complained, Merten and Bra mer accused Tarr of “trying to stir up trouble.” They called her a “drama queen” for m aking a complain t. Furthe rmore, they blam ed her for Com er’s actions, telling Tarr that any harassment was her own fault and suggesting that Tarr had invited Comer’s
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conduct. At one point, both Merten and Bram er stopped talking for about 10-15 m inutes. After this period of prolonged silence, T arr asked to l eave and return to work. Merten and Bra mer then resumed berating her.
493. Tarr felt intimidated by this experience. Bra mer’s and Merten’s conduct caused her to conclude that Bass Pro thought that she was the wrongdoer for com plaining about unlawful sexual harassm ent. She determined that she could not safely com plain to Hum an Resources, because her superviso rs had rebuked her for doing so. Tarr reasonab ly concluded that if she were to engage in additional protected activity, Bass Pro would subject her to further, and possibly more severe, retaliation.
494. After her com plaint to Human Resources, other Loss Prevention Agents also made comments to Tarr suggesting that she should not have complained to Human Resources.
495. Although she had com plained to the Hum an Resources Manager about Com er’s sexual harassment and provided a written statem ent, no Bass Pro officials followed-up with Tarr to ensure that her complaint had been resolved, or otherwise communicated with her concerning actions taken in response to her protected activity.
496. To Tarr’s knowledge, Bass Pro did not discipline Comer in any wa y for his harassing behavior, as reported in her complaint.
497. Shortly after complaining to Human Resources, Tarr requested a schedule change to avoid w orking with Com er. Bram er was responsible for creating the schedule for the approximately eight Loss Preven tion Agents. Loss Preve ntion Agents usually w orked two Agents to a shift.
498. Bramer scheduled Tarr to work with Comer on the very next schedule after Tarr’s complaint. In the conte xt of Tarr’s having b een harassed by Comer, having reported Comer for sexual harassment, and having specifically reques ted that she not be a ssigned to work with
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Comer, Tarr reasonably construe d that being scheduled to work with Com er was a f ailure of Bass Pro to address the sexual harassment and retaliation for her protected activity.
499. Bramer continually scheduled Tarr to wo rk with Comer more often than she had worked with him before her complaint. Previously, Tarr had worked with Comer approximately one day a w eek. Following her complaint, Bram er scheduled Tarr to work with Comer up to three days a week. Because Comer did not work as many days as Tarr, almost every time Comer was scheduled to work, Tarr was scheduled to work with him. Tarr felt that Bass Pro’s repeated scheduling of her to work with Comer, after she complained of sexual harassment, was to punish and retaliate against her for having complained.
500. Tarr was u ncomfortable working with Co mer because of his hara ssment and hostility towards her. Comer was aware that Tarr had reported him for sexual harassment. After Tarr rejected Com er’s propositions and com plained to Hum an Resources, Com er’s harassment changed and he became hostile towards her. Tarr and Com er had to work m any hours in the store’s “monitoring room,” a small office with surveillance monitors that had no windows. Each time they worked together, he called her names such as “trouble-maker” and “bitch.” Tarr tried to avoid confrontations with Comer and to avoid being alone in the monitoring room with him as much as possible.
501. When they worked together, Com er sometimes left the monitoring room to walk the floor, leaving Tarr alone in the room for several hours without relieving her so she could use the restroom or take a break. This violated Bass Pro’s procedures and materially altered the terms or conditions of Tarr’s employment.
502. In addition to scheduling them to work together, Bramer also scheduled Tarr and Comer to work closing shifts, which ended be tween 10:30 and 11:00 pm. W orking the closing shift required Tarr and Comer to stay after all other employees had left to do a final inspection of
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the store. They would then lock the doors and walk into the parking lot, either alone or with one manager. Tarr began parking in a different sec tion of the parking lot further aw ay, to avoid walking at night to her car with Comer. Bramer’s scheduling Tarr and Com er in this m anner, after Tarr’s report of se xual harassment, adversely affected the terms or conditions of Tarr’s employment.
503. Additionally, the increased night shifts which Bass Pro required Tarr to work after complaining adversely affected her and her fam ily. She had previously worked m ainly morning or day shifts, when she had child care for her three-year old daughter. W hile working mainly night shifts, on occasion Tarr had to drive an hour away and leave her daughter with fa mily for several days at a tim e. The resulta nt strain and emotional distress reasonably dissuaded Tarr from engaging in further protected activity.
504. In January 2009, Tarr gave Vaughn a note stating that she could no longer tolerate the work environment and management’s failure to correct the situation. Because of Bass Pro’s acts and omissions — including but not limited to the failure to take prompt remedial action in response to her sexual harassm ent complaints; verbally abusing Tarr for her protected activity; explicitly telling Tarr that she sho uld not h ave complained and sh ould not d o so aga in; unreasonably rejecting Tarr’s request not to work with Comer; forcing Tarr to work more closely with Comer than before her protected activity; forcing her to work alone, in close proximity with Comer at night; failing to discipline her harasser in any way; failing to advise Tarr of any actions taken in response to her com plaint; and imposing a schedule on Tarr w hich adversely affected her and her family — Tarr resigned.
505. Because Tarr engaged in protected activity, Bass Pro retaliated against her, including subjecting her to retaliatory harassment, in violation of Title VII.
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Denise Marstall 506. Starting in 2009, Defe ndants unlawfully reta liated against Denise Marstall, a “Camo/Hunting” Lead at Defendants’ Auburn, New York store, for engaging in activity protected by Title VII of the Civil Rights Act of 1964. 507. Defendants hired Marstall to work as a Hunting Apparel Associate in 2005. She became a Lead in the Camo/Hunting department in 2008. 508. Marstall’s direct supervisor was Hunti ng Manager, Perry P lanck. The General Manager of the store was Jeff Burdick. Plan ck was a su pervisory employee and Bass Pro’s agent, within the meaning of Title VII. 509. Beginning in 2006, Marstall complained to Assistant Human Resources Manager, Rob Barber, that Planck’s treatm ent of her was unprofessional and that he displayed favoritism towards the male Leads in h is department. S he made several m ore similar complaints about Planck to Barber through 2009. 510. To Marstall’s knowledge, Bass Pro took no co rrective actions in response to her complaints. By this inaction, Bass Pro knowi ngly subjected Marstall to further unlawful discrimination by allowing Planck’s conduct to continue, despite her complaints. 511. In 2009, Marstall learned from a fellow male Hunting L ead that he m ade approximately $14 an hour, whereas she earned onl y $10 an hour. This m ale Lead was hired approximately three years after Marstall, and had demonstrated absenteeism and perfor mance problems. Marstall reasonably inferred that Bass Pro’s paying the male Hunting Lead at a higher hourly rate than it paid her constituted unlawful sex discrimination. 512. In late 2009, Marstall com plained to th e Assistant Hum an Resources Manager, Rob Barber, that she believed she was not being paid the same as other m ale Leads in he r department. Barber responded th at there was nothing he could do about her com plaint and did
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nothing more. At the tim e, there were five m ale Leads and three fem ale Leads in the Hunting Department.
513. In late 2009, Marsta ll and her fellow fe male Leads complained to Burdick that Planck treated them less favorably than thei r male Lead counterpart s. Specifically, they complained that Planck assigned the female Leads more work and responsibilities than the male Leads and held the women to a higher performance standard. They stated that Planck fraternized with the male Leads and not with f emale Leads. Th ey also stated that Planck failed to treat the women professionally and underm ined their aut hority in front of s ubordinate employees. Marstall specifically com plained about the appa rent pay disparity between m ale and fe male Leads. Planck was present at the meeting.
514. Burdick and Planck became angry at Marstall and the other wo men for complaining. Burdick in particular dism issed the complaints and told Marstall she should be happy to have her job and if she was not, she could go to the Bass Pro competitor store across the street and see if she liked it bett er there. Marstall felt intimidated by Burdick and Planck a t the meeting, and she immediately regretted raising her complaints.
515. Following the com plaint, Burdick and Planc k treated Marstall with f urther hostility. Burdick began talking to Marstall abrasi vely, frequently using cu rse words to refer to her work product. This conduct was m arkedly harsher than before, and followed quickly upon Marstall’s complaint. Marstall reasonably inferred that Burdick was harassing her in retaliation for her protected activity. Burdick’s harsh crit icisms of Marstall’s performance were no t justified or based on the manner in which she was doing her job; rather, they were committed in retribution for her complaints of sex discrimination.
516. Planck also began to critici ze her job perform ance in ways dramatically different than before she complained. Both Planck and Burdick often made her tear down displays and set
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them up again with in unrealistic timeframes. Pl anck also chastised her on the storeroom floor and threatened her with termination if he le arned she was talking about em ployee pay. This verbal abuse constituted a direc t threat of additional retaliation if Marstall were to engage in further protected activity.
517. In addition, Planck added to her workload, assigned her more responsibilities than her male counterparts, and altere d her schedule in such a w ay that she no longer had consistent work dates and tim es and had to w ork most weekends. The schedule change — which was not based on business needs, and which was retaliatory — was particularly difficult on Marstall as it affected her ability to care for her daughter.
518. In a retaliatory effort to discourage and demoralize Marstall, and to alter the terms or conditions of her em ployment, Bass Pro al so stopped acknowledging wh en Marstall received customer “star cards,” which custo mers give employees for high quality custom er service. Employees are eligible for workplace promotions and prizes ba sed on the num ber of star cards they receive. Bass Pro purports to use this system of recognition to heighten employee morale and to extol merit. Prior to her co mplaint, Marstall often received thes e star card recognitions and as a co nsequence, monetary prizes and oth er rewards. For exam ple, she had received $50 and $100 store gift cards, preferred parking spots, an “Employee of the month” plaque, paid days off, frequent invitations to “star” employee luncheons, and “star point” store discounts. After the complaint, she stopped receiving any of these recognitions. By depriving Marstall of these terms or conditions of e mployment, which her perfor mance merited, Bass Pro adversely affected Marstall’s work environment. Marstall reasonably found this retaliatory conduct by Bass Pro to be discouraging and demoralizing.
519. Approximately three weeks after Marstall and other female Leads complained to the managers of sex discrim ination, Planck called Marstall to Burd ick’s office to issue her what
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Planck referred to as a “final write-up” prio r to termination. Bass Pr o had never previously given Marstall a write-up or any kind of disciplin e. A first write-up could not properly be considered a “final” write-up given Bass Pro’s st ated progressive discipline system. Marstall reasonably discerned that Bass Pro was improperly deviating from its own progressive discipline system, and threatening Marstall with discharge, in re taliation for her protec ted activities. A week earlier, Marstall had had a medical emergency and followed company procedure to excuse her absence for two days. Planck based the wr ite-up on the false accusation that Marstall was a “no-show” because she had not called in on the second day of her absence to notify them that she would not be at work.
520. Marstall reasonably concluded that there was no legitimate basis for the write-up because she had followed com pany procedure and given the store notice th at she would be out two days due to her em ergency. Marstall re asonably inferred that Planck wrote her up, and threatened to terminate her in retaliation for her protected activities. She reasonably concluded that Planck and Burdick issued the write up to r etaliate and intimidate her, to dissuade her from further protected activity, and to affect adversely the terms or conditions of her employment.
521. In late 2009 and again in ear ly 2010, Marstall com plained of Planck’s retaliatory treatment and the sex-based pay discrim ination to Barber and to Hum an Resources Manager Karen Roebuck. Roebuck told Marstall to “lighten up.” Both managers told her they would look into the situation.
522. In late spring/early summer 2010, Roebuc k informed Marstall that Bass Pro would give her a $0.40 per hour ra ise. Marstall believed that she was entitled to a greater increase, particularly given the fact that she l earned that a less experienced m ale Lead was paid approximately $4 m ore per hour. Roebuck admonished Marstall th at the increase was to stay between “her and the fencepost,” w hich Marstall understood to m ean that she was supposed to
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take the raise, remain quiet, and stop complaining about her pay. 523. Viewed in the aggregate, Burdick’s, Pl anck’s, Barber’s and Roebuck’s responses
to the com plaints of sex discrimination adversely affected Marstall an d constituted retaliatory harassment. As a result of the m anagers’ failure to rem edy the sex discrim ination and their subsequent retaliation against Marstall, Marstall was forced to resign in June 2010.
524. Bass Pro’s retaliatory actions in respons e to Marstall’s pr otected activities reasonably compelled Marstall to resign and/or be constructively discharged.
Velecia Cruse 525. Beginning in 2008, Defendants retaliated against Store Hum an Resources Manager Velecia Cruse for engaging in protected activity at the Katy, Texas, store. 526. Cruse, a Black fe male, had m any years of human resources experience when Defendants hired her. When Cruse started working at the Katy store in August 2008, she began to notice discrim inatory practices in cluding, among other things, that: Whites with little or no work experience were b eing interviewed and hired while Blacks with experience were being rejected; Black employees were assigned undesirable shifts; a White manager and other W hite employees were permitted to challenge the Stor e Human Resources Manager’s authority in their attempt to strip a Black co-worker’s “em ployee of the month” recognition; and one of the store Leads impeded the hiring prospects of Black applicants, but not of White applicants, by requiring Black applicants to take a test that was typically given to recently hired employees. 527. Cruse complained of the discriminatory practices to Katy Store General Manager Craig Herpin, Regional Hum an Resources Manager Jill Klimas, and the Direc tor of Human Resources, Brent Day. 528. Once Cruse started com plaining, management retaliated against her by scrutinizing her work more intensely than before and assigning her undesirable work hours.
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529. In July 2009, Cruse complained about the retaliation. 530. Shortly after Cruse’s retaliation complaint, Regional Human Resources Manager Klimas visited the Katy store and accused Cruse of payroll irregularities. 531. Defendants fired Cruse within eight days of receiving no tice of her retaliation complaint.
Eric Benitez 532. Defendants retaliated against Eric Benitez for engaging in activ ity protected by Title VII at their Miami, Florida, store. 533. Cuban-American Benitez worked for De fendants as a Service Tech from 2007 until he was term inated in 2011. Though Benite z had more seniority, a W hite co-worker, William, was promoted to the Service Manager position. William made derogatory comments to Benitez and other Cuban-American employees, including calling them “Spic.” 534. Benitez complained several times about William’s behavior to the Store General Manager, Scott Tarlow, and he also com plained about William’s conduct to other m anagers. In early 2011, Benitez co mplained, in writing, to Hu man Resources about other problems he was having with William. Defendants did not meaningfully investigate Benitez’s complaint. 535. Within several weeks o f Benitez’s last com plaint, Defendants fired him. His termination was based on a false allegation b rought against him by W illiam, the sam e White supervisor Benitez co mplained had directed an anti-Hispanic slu r against him and other Hispanics. 536. The effect of the practices complained of in paragraphs 432 to 535 above has been to deprive employees of equal em ployment opportunities and to otherwise adversely affect their status as employees because of their complaints or other activities protected under Title VII.
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COUNT THREE: RECORDKEEPING VIOLATIONS 537. Defendants have failed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to preserve records relevant to th e determination of whether unlawful employment practices have been or are being c ommitted. Records which Def endants unlawfully failed to retain include, but are not limited to, relevant employment applications and personnel files, tests administered to applicants, lists of job candidates, elect ronic messages and audio and documentary records of efforts to contact to the corporate complaint center (k nown as the “hotline”). For example, after receiving notice of the Commissioner Charge which underlies this action, Defendants allowed the destruction o f hotline recordings co ntaining discrimination complaints made by employees.
INTENT AND MALICE 538. The unlawful employment practices complained of in Count One and Count Two were and are intentional. 539. The unlawful employment practices complained of in Count One and Count Two were and continue to be done w ith malice or with reckless indiffe rence to the federally protected rights of Black and Hispanic applicants, and to the federally protected rights of e mployees who engaged in activity protected by Title VII.
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PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a perm anent injunction en joining Defendants, th eir officers, agents, servants, employees, atto rneys, successors, assigns, and all persons in active concert or participation with them , from engaging in discrimination based on race and national origin in their hiring and from retaliating against employees who oppose these and other discrim inatory practices, or otherwise engage in activity protected by Title VII. B. Order Defendants to institu te and carry ou t policies, practices, and programs which provide equal employm ent opportunities for Black and Hi spanic applicants, and for employees who participate in activity protec ted by Title VII or who oppose practices m ade unlawful by Title VII, and which eradicate the effects of Defenda nts’ past and present unlawful employment practices. C. Order Defendants to m ake whole aggrie ved Black and Hispanic applicants and employees, and victims of unlawful retaliation as described above, by providing appropriate back pay with prejudgment interest, in amounts to be de termined at trial, and other affirm ative relief necessary to eradicate the effects of Defendant s’ unlawful employment practices, including but not limited to rightful-place hiring of qualifie d Black and Hispanic applicants and, where appropriate, re-instatement. D. Order Defendants to make and preserv e all record s, in accordance with th e provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(c), relevant to the dete rmination of whether unlawful em ployment practices have been or are being committed. E. Order Defendants to m ake whole aggrie ved Black and Hispanic applicants and employees, and victims of unlawful retaliation as described above, by providing compensation
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for past and future pecuniary lo sses resulting from the unlawful employment practices described in Count One and Count Two, including job search expenses, in am ounts to be determ ined at trial.
F. Order Defendants to m ake whole aggrie ved Black and Hispanic applicants, and victims of unlawful retaliation as described above, by providing compensation for past and future nonpecuniary losses resulting from the un lawful practices complained of in Count One an d Count Two, including emotional pa in, suffering, inconvenience, loss of enjoym ent of life, and humiliation, in amounts to be determined at trial.
G. Order Defendants to pay a ggrieved Black and Hispanic applicants and victims of unlawful retaliation as desc ribed above, punitive dam ages for Defendants’ malicious and reckless conduct described in Count One and Count Two, in amounts to be determined at trial.
H. Grant such further relief as the Cour t deems necessary and proper in the public interest.
I. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all que stions of fact ra ised by this Complain t which may be decided by a jury.
Respectfully submitted,

Deputy Associate
131 Washington,

P. DAVID LOPEZ General Counsel JAMES L. LEE
General Counsel GWENDOLYN YOUNG REAMS
General Counsel Equal Employment Opportunity Commission
M Street, N.E. D.C. 20507

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Texas Southern
1201 Houston,
Fax: Em

/s/ Gregory T. Juge GREGORY T. JUGE Attorney-in-Charge Acting Supervisory Trial Attorney U.S. Equal Employment Opportunity Commission 1555 Poydras Avenue, Suite 1900 New Orleans, Louisiana 70112 Direct: (504) 595-2877 Fax: (504) 595-2886 Email: gregory.juge@eeoc.gov
/s/ Robert D. Rose ROBERT D. ROSE Supervisory Trial Attorney U.S. Equal Employment Opportunity Commission 33 Whitehall Street, 5th Floor New York, New York 10004 Direct: (212) 336-3708 Fax: (212) 336-3623 Email: robert.rose@eeoc.gov
/s/ Tanya L. Goldman TANYA L. GOLDMAN Trial Attorney U.S. Equal Employment Opportunity Commission 10 S. Howard St., 3rd Floor Baltimore, MD 21201 Direct: (410) 209-2728 Fax: (410) 209-2221 Email: tanya.goldman@eeoc.gov
TIMOTHY M. BOWNE Senior Trial Attorney
Bar No. 00793371 Dist. of Texas No. 20023
U.S. Equal Employment Opportunity Commission
Louisiana St., 6th floor Texas 77002
Direct: (713) 651-4914 (713) 651-7995
ail: timothy.bowne@eeoc.gov
- 254 -

Case 4:11-cv-03425 Document 104 Filed in TXSD on 04/15/13 Page 255 of 255

OF COUNSEL:
JIM SACHER Regional Attorney ROSE ADEWALE-MENDES Supervisory Trial Attorney Equal Employment Opportunity Commission 1201 Louisiana St., 6th floor Houston, Texas 77002
CERTIFICATE OF SERVICE
I certify that counsel for De fendants has been served with the foregoing pleading via the
Court’s ECF system.

April 15, 2013

/s/

Date

TANYA

Tanya L. Goldman L. GOLDMAN

- 255 -

 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

BASS PRO OUTDOOR WORLD, LLC, §

and TRACKER MARINE, LLC

§

§

Defendants.

§

Case No. 4:11-CV-3425

MEMORANDUM AND ORDER Plaintiff Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) has brought suit against Defendants Bass Pro Outdoor World, LLC, and Tracker Marine, LLC, for violations of Title VII of the Civil Rights Act of 1964. Before the Court is the Commission’s Motion for Partial Summary Judgment.1 (Doc. No. 137.) The EEOC asks this Court to grant it partial summary judgment on the grounds that it has satisfied its duty to engage in conciliation, not on the basis of how it conducted conciliation, but on the theory that “[w]hether the EEOC attempted conciliation is judicially reviewable, but how the EEOC conducted conciliation is not.” (Doc. No. 137 at 7.) Thus, while this motion comes before the Court in the form of a motion for summary judgment, the motion is less about the absence of a genuine dispute as to any material fact, but rather about an issue of law. For the reasons set forth below, this Court joins the others to consider the issue and holds that the mere fact of

1 The Court will resolve Defendants’ related Motion for Summary Judgment (Doc. No. 119), urging dismissal for failure to attempt conciliation in good faith, and the EEOC’s Motion to Amend the Complaint (Doc. No. 135) in a future Memorandum & Order. A hearing on those motions was scheduled for Oct. 8, 2013 but has been continued pending the resolution of the current government shutdown.
1

conciliation is fair game for judicial review. Consequently, the EEOC’s motion for partial summary judgment is DENIED. I. STANDARD OF REVIEW
To grant summary judgment, the Court must find that the pleadings and evidence show that no genuine issue of material fact exists, and therefore the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The party moving for summary judgment must demonstrate the absence of any genuine issue of material fact; however, the party need not negate the elements of the nonmovant’s case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1997). If the moving party meets this burden, the nonmoving party must then go beyond the pleadings to find specific facts showing there is a genuine issue for trial. Id. “A fact is material if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotations and footnote omitted). Where “the disputed issue in this case is purely legal, it [is] appropriately resolved through summary judgment.” Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995). II. STATUTORY FRAMEWORK
Title VII makes it unlawful for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Congress has empowered the EEOC to prevent employers from engaging in such practices. See 42 U.S.C. § 2000e-5. At first, Congress devised a scheme through which the EEOC would seek to “settle disputes through conference, conciliation, and persuasion,” and if the EEOC failed, then the individual(s) alleging
2

discrimination had the option to file a lawsuit in federal court. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974). Congress amended the Act in 1972, however, to afford the EEOC an additional tool: the ability to file suit on behalf of the aggrieved individual(s). Occidental Life Ins. Co. of California v. E.E.O.C., 432 U.S. 355, 368 (1977). Still, Congress’s intent in expanding the EEOC’s authority was not to discourage the more informal and more cooperative measures with which it had initially tasked the Commission. See id. The EEOC was to continue, “settling disputes, if possible, in an informal, noncoercive fashion.” Id.
Indeed, to this day, conciliation remains “‘the preferred means of achieving the objectives of Title VII.’” E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 468 (5th Cir. 2009) (quoting EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982)). Consequently, Title VII still provides that, after the EEOC has investigated a charge of discrimination and determined that “there is reasonable cause to believe that the charge is true,” the Commission “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). The EEOC can file suit only after it has engaged in this “most essential function[].” Equal Employment Opportunity Comm’n v. Pet, Inc., Funsten Nut Div., 612 F.2d 1001, 1002 (5th Cir. 1980).
This is not to suggest that the Act imposes rigid strictures upon the course and outcome of conciliation. Rather, a conciliation agreement need only be “acceptable to the Commission.” 42 U.S.C. § 2000e-5(f)(1). The Fifth Circuit has explained that “[i]n evaluating whether the EEOC has adequately fulfilled this statutory requirement, the fundamental question is the reasonableness and responsiveness of the EEOC’s conduct under all the circumstances.” Equal Employment Opportunity Comm’n v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981) (citing Marshall v. Sun Oil Company (Delaware), 605 F.2d 1331, 1335-36 (5th Cir. 1979)).
3

Even more specifically, the court of appeals has delineated a three-part test for whether the
EEOC has satisfactorily attempted conciliation. The EEOC must “(1) outline to the employer
the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for
voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer.” Agro, 555 F.3d at 468 (citing Klingler, 636 F.2d at 107).2
The Fifth Circuit has also explained that “the EEOC’s conciliation requirement is a
precondition to suit but not a jurisdictional prerequisite.” Agro, 555 F.3d at 469. In so
explaining, the court of appeals went out of its way to note that “[h]olding that conciliation is not
jurisdictional does not render this requirement meaningless. Courts remain free to impose a stay
for the EEOC to continue prematurely terminated negotiations, and where the EEOC fails to act
in good faith, dismissal remains an appropriate sanction.” Id. at 469 (citing Klingler, 636 F.2d at
107).
III. ANALYSIS
A.
With the aforementioned statutory backdrop in mind, it is simply not open to the Court to
hold unreviewable whether the Commission has satisfied its duty to attempt conciliation. Not
only do the EEOC’s arguments fail on their own terms, as explained briefly infra, Fifth Circuit
precedent squarely forecloses such a holding. The Fifth Circuit has expressly delineated a
standard for evaluating conciliation efforts. Klingler, 636 F.2d at 107. Further, it has explicitly
2 Other courts have characterized the Fifth Circuit’s three-part test, also employed by the Second and Eleventh Circuits, as “a more strenuous review of the conciliation process.” See E.E.O.C. v. Mach Min., LLC, 11-CV-879JPG-PMF, 2013 WL 319337, at *2 (S.D. Ill. Jan. 28, 2013) (citing EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003)), reconsideration denied, motion to certify appeal granted, 11-CV-879-JPG-PMF, 2013 WL 2177770 (S.D. Ill. May 20, 2013); see also EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d Cir. 1996); Klingler, 636 F.2d at 107. In contrast, the Fourth, Sixth, and Tenth Circuits have all adopted a more deferential standard that makes only a surface-level inquiry into whether the EEOC has attempted conciliation at all. See, e.g., EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984); EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir.1979); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978).
4

instructed lower courts that they “remain free” to scrutinize the EEOC’s conciliation attempts. Agro, 555 F.3d at 469. In Agro, neither party challenged whether the Fifth Circuit had subject matter jurisdiction over the appeal, but the court of appeals addressed it anyway, as is its duty. See id. at 467. The court’s precise inquiry there was whether the EEOC’s failure to attempt conciliation in good faith divested the court of jurisdiction, but if, as the EEOC now maintains, “subject matter jurisdiction to review the EEOC’s conciliation efforts d[id] not exist” in the first place, (Doc. No. 137 at 7), surely the court would have said so.3 As far as this Court is concerned, the Fifth Circuit has spoken on the matter; this Court is not free to adopt the EEOC’s understanding of Title VII.
B. Even if the Court were free to disregard Fifth Circuit precedent, the EEOC’s arguments in support of its motion are unavailing. The EEOC argues that defendants lack standing under the APA, that there is no final agency action for this Court to review, and that the conciliation process is committed to agency discretion by law. It also contends that separation of powers principles and sovereign immunity prevent the Court from reviewing the EEOC’s conciliation efforts. While the Circuit’s case law renders it unnecessary to analyze these arguments, the Court addresses them briefly. 1. Arguments Based on the APA The EEOC argues that Plaintiff lacks standing under the APA. But the APA does not govern this suit. The APA allows a private individual who believes that he has “suffer[ed] a
3 The EEOC dismisses this section of Agro as dicta, on the grounds that the district court granted defendant summary judgment on the merits and that the Fifth Circuit affirmed on that basis. (See Doc. No. 137 at 11.) Even if that were so, the Court’s reasoning remains persuasive and its statement that “dismissing the case and awarding attorneys’ fees for the failure to conciliate would not have constituted an abuse of discretion,” Agro, 555 F. 3d at 469, remains instructive. Surely, passing on an issue that is not judicially reviewable would have been an abuse of discretion.
5

legal wrong because of agency action” to bring “[a]n action in a court of the United States.” 5 U.S.C. § 702. This action, in contrast, was brought by the agency. The fact that a federal agency is involved does not automatically trigger APA requirements. Here, where the EEOC sued under Title VII, the APA is simply not relevant, as has recently been held by the other two district courts to consider this argument. See Equal Employment Opportunity Comm’n v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, 1036 (D. Ariz. 2013); Mach Min., 2013 WL 319337, at *4 n.1.
Nevertheless, the EEOC argues that this case is controlled by Newsome v. E.E.O.C., 301 F.3d 227 (5th Cir. 2002). In Newsome, a private plaintiff sued the EEOC, complaining that the Commission had improperly dismissed his complaint. Id. at 232. The Fifth Circuit thus held that there had been “no final agency action” and that “no review [was] available under the APA.” Id. Newsome would be relevant if Defendants — or one of the individuals allegedly discriminated against — had filed a lawsuit against the EEOC alleging improper conciliation. That suit would likely be barred by provisions of the APA. But where, as here, defendants were brought into court by the EEOC and now challenge one of the preconditions to the EEOC filing suit, Newsome in particular, and the APA in general, are simply irrelevant.
It is thus unnecessary to analyze whether EEOC has standing under Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 886 (1990), and related cases, to contest agency action. It is not even necessary to run through the basic elements of standing — injury-in-fact, causation, and redressability — as Defendants have not sought to “initiate or continue proceedings in federal court.” Bond v. United States, 131 S. Ct. 2355, 2361 (2011). Standing is not a relevant concept where, as here, Defendants simply seek to challenge a precondition to the EEOC’s authority to file suit.
6

It is also unnecessary to consider whether there exists a final agency action or whether conciliation is committed to agency discretion by law. Those concepts are only relevant to suits brought under the APA, see 5 U.S.C. § 704; id. § 701(a)(2), not suits brought by the agency under another Act. Likewise, the Court cannot credit the EEOC’s argument that “[b]ecause the requirements of the APA are not met here, the EEOC has sovereign immunity from the grant of any relief at the Defendants’ behest regarding conciliation.” (Doc. No. 137 at 18.) “Sovereign immunity is the privilege of the sovereign not to be sued without its consent.” Virginia Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637 (2011). The EEOC counters that, even where sovereign immunity from suit is not at issue, as it seems to concede is true here, the Government can nevertheless be immune from liability, citing for support Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 254-55 (5th Cir. 2005). As such, the EEOC contends that its sovereign immunity prevents this court from granting the relief — either dismissal or a stay as a consequence of insufficient conciliation attempts — that Defendants seek. That cannot be right. Not only does the EEOC misapprehend Meyers,4 it misunderstands “relief.” Asking the Court to decide whether a condition precedent to suit has been satisfied is not the sort of “relief,” like monetary relief or injunctive relief, from which sovereigns can ordinarily claim immunity. See, e.g., Black’s Law Dictionary 1404 (9th ed. 2009) (defining relief as “[t]he redress or benefit, esp. equitable in nature (such as an injunction or specific performance), that a party asks of a court”). It would make little sense for Congress to impose certain conditions precedent on the EEOC’s authority to bring suit if the EEOC could just turn around and claim sovereign immunity from judicial enforcement of that condition.
4 In Meyers, the Fifth Circuit left open the possibility — but did not even decide — that a state defendant who removes a suit to federal court can still claim immunity from certain types of liability, such as money damages. See Meyers, 410 F.3d at 256 (“We do not determine and the state is not precluded from pursuing a claim that it is immune from liability under principles of Texas sovereign immunity law, separate and apart from its waiver of its immunity from suit in federal court in this case.”).
7

2. Separation of Powers The EEOC makes the somewhat related argument that separation of powers principles bar the Court from considering whether the conciliation requirement has been met. Lest the Courts be given “tasks that are more properly accomplished by [other] branches,” Morrison v. Olson, 487 U.S. 654, 680-81 (1988), the EEOC argues that its conciliation-related decisions should not be second-guessed. Perhaps that is so, and why courts do not wade into whether the EEOC should accept or reject specific conciliation offers. But given that Congress wrote conciliation into the Act as a precondition to an EEOC suit, it is not a reason for the courts to get out of the business of enforcing the statute as written. See E.E.O.C. v. Bloomberg L.P., 07 CIV. 8383 LAP, 2013 WL 4799150, at *7 (S.D.N.Y. Sept. 9, 2013) (“Congress has afforded the EEOC a number of tools under Title VII to address different types of discrimination; it has also imposed limits on its enforcement authority. Just as Congress has charged the EEOC with helping ensure that employers do not single out employees on account of certain characteristics, this Court is charged with ensuring that any actions brought before it by the EEOC are within the parameters of the law as set forth by Congress, regardless of how well-intentioned the EEOC’s purpose.”). In support of its unusual argument, the EEOC has not cited any case in which a statutorily prescribed precondition to suit was found unreviewable. Instead, it relies on the legislative history to Title VII’s 1972 amendment. But the EEOC misapprehends that legislative history. The Equal Employment Opportunities Enforcement Act of 1971 originally would have written 42 U.S.C. Section 2000e-2(f) as stating that the Commission could bring suit if it was unable to “secure from the respondent a conciliation agreement acceptable to the Commission, which determination shall not be reviewable in any court.” 118 Cong. Rec. S3373 (daily ed.
8

Feb. 9, 1972) (emphasis added) (citing S. 2515. 92nd Cong. (1972)). The EEOC relies on statements made during the debate of an amendment which would have struck the italicized language above. In opposition to that amendment — in support of leaving the italicized language — Senator Javits opined that “a pendente lite decision on that score would simply hold up the works forever and espouse the proposition that people can be made to settle, which just is not a judicial proposition.” 118 Cong. Rec. S3807 (daily ed. Feb. 14, 1972). That passage does little to help the EEOC. As the EEOC rightly notes, Senator Javits’s statement concerned “whether the EEOC was able to secure an acceptable settlement.” (Doc. No. 137 at 19.) Senator Javits did not want a court second guessing whether the EEOC should have accepted, or rejected, a certain settlement offer.5 He was not contesting the proposition that Courts should be able to review, in at least some depth, whether the EEOC had even attempted to conciliate. Indeed, some of Senator Javits’s statements seem to confirm that he believed that whether the EEOC had engaged in the process at all would be reviewable. See, e.g., 118 Cong. Rec. S3806 (“If the Commission acts and the statute calls for a determination, the Commission runs the risk that its decision may be upset if the court determines, on review — and there is adequate judicial review — that the necessary procedures provided by law were not complied with . . .”) Finally, it bears mentioning that, as is plain for all to see, the language that Senator Javits wanted left in the bill was ultimately taken out. Though the amendment failed on the day Javits made the statements above, it ultimately succeeded. The EEOC thus essentially uses the minority opinion in Congress — on an issue not even identical to the one in dispute here — to support the argument it urges this Court to adopt. The Court is not convinced.
5 His other statements confirm this. See, e.g, 118 Cong. Rec. S3807 (“[I]t seems to me inconceivable that we would enter into a court proceeding [to] test, whether the Commission could or could not get a conciliation agreement, in terms of the fairness of such a conciliation agreement, which gets down to the point that we would substitute the court for the parties insofar as a settlement is concerned.”).
9

IV. CONCLUSION Whereas the reviewability of conciliation attempts led to few judicial opinions prior to
this year, it seems that the EEOC has recently begun to advance the argument with more regularity. See Swissport Fueling, Inc., 916 F. Supp. 2d at 1036; Mach Min., 2013 WL 319337. The Court cannot agree with it. Congress has determined that “‘voluntary compliance’ [should] be ‘the preferred means of achieving the objectives of Title VII.’” Ricci v. DeStefano, 557 U.S. 557, 581 (2009) (quoting Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 515 (1986)). And Congress has tasked the courts with ensuring that its directive is heeded. Thus, mindful of both the text and purpose of the statute, and in light of the relevant Fifth Circuit case law, this Court DENIES the EEOC’s Motion for Partial Summary Judgment.
IT IS SO ORDERED. SIGNED at Houston, Texas on this the 2nd day of October, 2013.
KEITH P. ELLISON UNITED STATES DISTRICT COURT JUDGE
10

 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

BASS PRO OUTDOOR WORLD, LLC, §

and TRACKER MARINE, LLC

§

§

Defendants.

§

Case No. 4:11-CV-3425

MEMORANDUM AND ORDER Plaintiff Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) has brought suit against Defendants Bass Pro Outdoor World, LLC, and Tracker Marine, LLC (“Defendants” or “Bass Pro”), for violations of Title VII of the Civil Rights Act of 1964. The Commission has alleged that Defendants are guilty of pervasive discrimination against minority applicants and employees. It seeks significant monetary damages and comprehensive prospective relief. Two Motions are currently before this Court: Defendants’ Motion for Summary Judgment (Doc. No. 119) and Plaintiff’s Motion to Amend the Complaint (Doc. No. 135.) Most pressing is Defendants’ Motion: Bass Pro asks the Court to dismiss the case on the grounds that the Commission has failed to engage in good-faith conciliation. (Doc. No. 119 at 1.) This is just the sort of motion that should make courts uneasy: armed with enormous discretion, the Court is asked, on what is now a cold record, to evaluate whether an independent agency undertook settlement talks in good faith. It is in these situations where we risk “aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976)

Nevertheless, as the Court explained in its October Memorandum & Order, there is no doubt that, in this circuit and most others, it is the province and the duty of the judiciary to pass on the Commission’s attempts to conciliate. (See Doc. No. 149.) For the reasons set forth below, Defendants’ Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. It is denied insofar as Defendants seek dismissal. However, because the Court believes the Commission prematurely terminated its efforts to conciliate the claims under § 706, the Court implements a thirty-day stay, and it dismisses any complainants who did not apply to work for Bass Pro until after the Commission issued its Letter of Determination. As for Plaintiff’s Motion to Amend, that motion is GRANTED. Tracker Marine, LLC is DISMISSED WITHOUT PREJUDICE. I. BACKGROUND
In deciding this Motion, it is necessary to take a close look at how the Commission and the Defendant interacted during the course of conciliation. As appears to be the norm, the parties “engaged in a vociferous letter-writing campaign” for more than six months. EEOC v. Bloomberg L.P. (Bloomberg II), 751 F. Supp. 2d 628, 640-41 (S.D.N.Y. 2010). They also met face-to-face. For reasons explained below, the Court looks separately at the Commission’s attempt to conciliate its § 707 claim and its § 706 claims and thus discusses the facts relevant to each, in the course of its analysis. Still, a brief overview here at the outset should help to set the scene.
A. Factual Background The EEOC issued a Commissioner’s Charge on February 20, 2007, indicating that the commissioner “ha[d] reason to think” that Bass Pro “ha[d] since at least November 2005[] discriminated against African American applicants and employees on the basis of their race at
2

Bass Pro Shops’ retail stores and facilities nationwide.” (Doc. No. 119-4 at 2.) The EEOC issued an Amended Commissioner’s Charge on May 5, 2008, adding that female, Asian, and Hispanic applicants and employees had also been subject to discriminatory hiring practices. (Doc. No. 119-5 at 2-4.) The Amended Charge outlined ten distinct allegations, including “failing to recruit and/or hire” African American, female, Asian, and Hispanic applicants, “[u]tilizing recruiting, hiring, and promoting policies and/or practices which adversely impact African American or black employee or applicants’ ability to obtain positions in its retail stores,” and “[h]arassing and retaliating against employees who have opposed discriminatory employment practices.” (Id. at 2-3.)
The EEOC’s investigation then commenced. Over the course of three years, the parties exchanged numerous letters, met at least three times, and Bass Pro responded to seven requests for production and produced over 230,000 pages of documents, (Doc. No. 119-6 at 3). The parties exchanged their first settlement proposals during the course of the investigation, but from the start, they were many million dollars apart. (Doc. No. 136-3 at 4-5.)
The Commission finally issued its Letter of Determination on April 29, 2010. (Doc. No. 119-11 at 2.) That letter meant in effect that the Commission believed it had unearthed good cause to believe the allegations made in the initial Charge (and Amended Charge) were true. In fact, that document listed more or less the same allegations as those contained in the Amended Commissioner’s Charge. (Id. at 2-4.)
The Commission contacted Bass Pro on May 5, 2010 to begin the conciliation process and set up an in-person meeting. (Doc. No. 119-14.) The Commission noted that it would “welcome [Bass Pro’s] submission of a conciliation proposal prior to our scheduled meeting.” (Id. at 2.) This is when the pace of the letter-writing campaign accelerated. The record reflects
3

that, over the course of the next eight months, the parties exchanged a total of nineteen letters. They also met in Dallas on August 4, 2010. After months of discussion marked by Bass Pro asking for more and more information, the Commission consistently refusing to provide all that the employer was seeking, and settlement offers, at least monetary ones, that reflected a fundamental disagreement, the Commission decided on November 19, 2010 that conciliation had failed.
Even then, the parties continued to exchange a handful of letters, ostensibly resuming conciliation talks, but neither side seriously changed its position. The Commission once again asserted in April 2011 that it did not appear as though conciliation or settlement talks would be fruitful and informed Bass Pro that it was considering filing suit. (Doc. No. 120-9 at 2.)
B. Procedural Background This suit was filed on September 21, 2011. (Doc. No. 1.) The original complaint, just nine pages long, alleged a “pattern or practice of unlawfully failing to hire Black and Hispanic applicants” and unlawful retaliation against individuals who opposed Bass Pro’s practices. Id. The Commission filed an Amended Complaint in January 2012, adding two related legal entities as defendants. (Doc. No. 23.) Defendants moved to dismiss and this Court granted in part and denied in part, explaining: The Court concludes that the EEOC has failed to state a claim for a pattern or practice of discrimination. Likewise, the EEOC’s retaliation claim cannot survive the Motion to Dismiss. The Court agrees with Defendants that the EEOC may not bring a pattern or practice claim pursuant to § 706. A 300-day limitations period applies to claims brought pursuant to § 706 or § 707; therefore, claims for failure to hire falling outside of that time period must be dismissed. The EEOC has adequately pleaded a record-keeping violation and that conditions precedent to the lawsuit have been met. (Doc. No. 53 at 9; see also EEOC v. Bass Pro Outdoor World, LLC (Bass Pro I), 884 F. Supp. 2d 499, 509 (S.D. Tex. 2012).)
4

The Commission once again filed an amended complaint, one that ballooned from twelve pages to 247. (See Doc. No. 61.) For the first time, it described its allegations in great detail, including descriptions of many of the individuals on whose behalf it was pressing claims. Defendants filed another motion to dismiss. One legal entity, Bass Pro, Inc., was dismissed in October 2012. (Doc. No. 95.) Then, in March 2013, the Court again granted in part and denied in part Defendants’ Motion to Dismiss, with all but two retaliation claims surviving. (Doc. No. 99; see also EEOC v. Bass Pro Outdoor World, LLC (Bass Pro II), No. 4:11-CV-3425, 2013 WL 1124063 (S.D. Tex. Mar. 18, 2013).) The Court granted leave to amend, which the Commission timely did, filing a Third Amended Complaint in April 2013. (Doc. No. 104.)
The parties then both filed motions for summary judgment: the Defendant filed the Motion now before the Court, asking for dismissal for failure to conciliate (Doc. No. 119), and Plaintiff filed a Motion for Partial Summary Judgment, urging that the sufficiency of its attempt to conciliate is not subject to judicial review (Doc. No. 137.) The Court has already denied that motion. (Doc. No. 149; see also EEOC v. Bass Pro Outdoor World, LLC (Bass Pro III), No. 4:11-CV-3425, 2013 WL 5515345 (S.D. Tex. Oct. 2, 2013).) The Commission has also filed a Motion to Amend the Third Amended Complaint on the grounds that Tracker Marine Retail, LLC, and not Tracker Marine, LLC, is a proper defendant. (Doc. No. 135.)
The Court heard argument on Defendants’ Motion for Summary Judgment and Plaintiff’s Motion to Amend in November. II. LEGAL FRAMEWORK
A. Summary Judgment Standard To grant summary judgment, the Court must find that the pleadings and evidence show that no genuine issue of material fact exists, and thus that the movant is entitled to judgment as a
5

matter of law. Fed. R. Civ. P. 56. The party moving for summary judgment must demonstrate the absence of any genuine issue of material fact; however, the party need not negate the elements of the nonmovant’s case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1997). If the moving party meets this burden, the nonmoving party must then go beyond the pleadings to find specific facts showing there is a genuine issue for trial. Id. “Facts and inferences reasonably drawn from those facts should be taken in the light most favorable to the non-moving party.” Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2007). Where “the disputed issue in [a] case is purely legal, it [is] appropriately resolved through summary judgment.” Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995).
B. Conciliation As the Court explained in Bass Pro III, Title VII makes it unlawful for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a). Congress has empowered the EEOC to prevent employers from engaging in such practices. See id. § 2000e-5. Conciliation is “the preferred means of achieving the objectives of Title VII.” EEOC v. Agro Distribution, LLC, 555 F.3d 462, 468 (5th Cir. 2009) (internal quotation marks omitted). The Act therefore mandates that, after the EEOC has investigated a charge of discrimination and determined that “there is reasonable cause to believe that the charge is true,” the Commission “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). The EEOC can file suit only after it has engaged in this “most essential function[].” EEOC v. Pet, Inc., Funsten Nut Div., 612 F.2d 1001, 1002 (5th Cir. 1980).
6

When courts are asked to determine whether the EEOC has fulfilled its obligation to conciliate, the heart of the inquiry is whether the EEOC made a “good-faith attempt at conciliation.” Agro, 555 F.3d at 468. To enforce that requirement, the Fifth Circuit has annunciated a three-part process in which it requires the Commission to engage: “(1) outline to the employer the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer.” Id. (citing EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981)). Still, “the fundamental question is the reasonableness and responsiveness of the EEOC’s conduct under all the circumstances. Klingler, 636 F.2d at 107 (citing Marshall v. Sun Oil Co. (Delaware), 605 F.2d 1331, 1335-36 (5th Cir. 1979)).
Indeed, the reasonableness of the Commission’s response depends in part on the degree to which the employer is willing to engage in the process. Courts “must evaluate one party’s efforts with an eye to the conduct of the other party.” Sun Oil, 605 F.2d at 1335. The EEOC is justified in dealing with “intransigent” employers differently than it would “repentant” wrongdoers. Id. Employers that do not appear willing to meaningfully interact with the EEOC are entitled to less flexibility from the Commission. See id. at 1336-37 (“Sun’s conduct precluded meaningful conciliation despite the Secretary’s efforts. Sun officials never attempted to rebut any of the Secretary’s charges except to plead a lack of discriminatory intent or to deny any wrongdoing. Sun could have countered the Secretary’s allegations in a number of ways.”).
It has been generally agreed that conciliation requires outlining the basis of the charge, but does not require a minitrial. The EEOC is obligated to “present a reasonable showing of discrimination,” but need not “produce as much evidence as [it] would need to prevail at trial, to satisfy the alleged wrongdoer or to meet some nonexistent burden of proof.” Id. at 1335; see
7

also EEOC v. McGee Bros. Co., Inc., No. 3:10-CV-142-FDW-DSC, 2011 WL 1542148, at *4 (W.D.N.C. Apr. 21, 2011) (explaining that, even under more exacting standard of review applied in the Fifth Circuit, there is no “requirement that the EEOC prove its case during the conciliation period”); Bloomberg II, 751 F. Supp. 2d at 639 (“‘[T]he EEOC is not required to disclose all of the underlying evidence . . . to the employer.’” (quoting EEOC v. Hibbing Taconite Co., 266 F.R.D. 260, 274 (D. Minn. 2009)). Still, the EEOC must share some of its proof. “The EEOC cannot expect employers to make substantial offers of settlement when they are provided with no information with which to evaluate their liability.” EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1045 (D. Haw. 2012).
If the Court determines that the EEOC “prematurely terminated negotiations,” it should impose a stay as provided for by the statute; if, on the other hand, it determines that the EEOC “fail[ed] to act in good faith, dismissal remains an appropriate sanction.” Agro, 555 F.3d at 469 (citing Klingler, 636 F.2d at 107). Courts are generally hesitant to resort to dismissal. In Klingler, the court of appeals determined that summary judgment-stage dismissal would be “too harsh a sanction,” in light of the fact that the EEOC had negotiated with defendant for two years. Klingler, 636 F.2d at 107. Without “grossly arbitrary and unreasonable conduct or substantial prejudice to the defendant, that [was] enough evidence of the EEOC’s good faith to make such a harsh remedy unnecessary.” Id. (citations omitted); see also Bloomberg II, 751 F. Supp. 2d at 643 (“Ordinarily, when the EEOC has failed to meet its duty to conciliate, the preferred remedy is not dismissal but instead a stay of the action to permit such conciliation. But when the EEOC fails to conciliate in good faith, courts have dismissed cases on that basis.” (internal quotation marks omitted)).
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III. DISCUSSION
A. Must the EEOC Separately Conciliate Claims Under Sections 706 and 707?
When the Court resolved Defendants’ most recent Motion to Dismiss, it explained that
Although Plaintiff’s Second Amended Complaint does not differentiate between the § 706 and § 707 claims, the Court will do so. Claims under § 706 and § 707 are distinct pursuant to Title VII, and have differing statutory structures, including the availability of jury trial and equitable remedies.
“A § 706 claim involves the rights of aggrieved individuals challenging unlawful employment practices on an individual or class-wide basis, whereas a § 707 claim involves a pattern-or-practice of systemic discrimination challenging widespread discrimination through a company on a group basis.” [Citations.] Additionally, “the Teamsters framework generally applies to pattern or practice claims brought under § 707, whereas the McDonnell Douglas framework applies to individual claims brought under § 706.” [Citations.]
Bass Pro II, 2013 WL 1124063, at *2. Thus, the first question that the Court must answer is this:
was the EEOC obligated to separately conciliate for its § 706 and § 707 claims? Or, at least,
must the Court undertake distinct analyses of whether the Commission properly conciliated the §
706 claim and the § 707 claim? Bass Pro insists that the answer to at least one of those questions
is yes.
First principles of EEOC conciliation suggest that Bass Pro is correct. As stated above,
the EEOC is obligated to share at least some information about how the EEOC would go about
proving its case. See, e.g., La Rana Hawaii, 888 F. Supp. 2d at 1045. And since the
Commission would prove a case under § 706 differently from a case under § 707, it follows
logically that the Court may need to separately analyze the EEOC’s conciliation attempts for
each type of claim.
Case law counsels in favor of the same result. Indeed, some courts have express;y
required the EEOC to tailor its conciliation attempts to the specific type of claims that it has
brought. In an exhaustive opinion issued last fall, Chief Judge Loretta Preska of the Southern
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District of New York explained that, because “Section 706 and 707 claims are based on distinct theories and are adjudicated under different standards,” “[a]llowing the EEOC to subvert its prelitigation obligations with respect to individual claims by yelling far and wide about class claims would undermine the statutory policy goal of encouraging conciliation.” EEOC v. Bloomberg L.P. (Bloomberg III), — F. Supp. 2d —, No. 07 CIV. 8383 LAP, 2013 WL 4799150, at *7 (S.D.N.Y. Sept. 9, 2013). Further, as discussed at greater length below, some courts have held that “individualized conciliation” is required. See, e.g., Arizona ex rel. Goddard v. GEO Grp., Inc., No. CV 10-1995-PHX-SRB, 2012 WL 8667598, at *14 (D. Ariz. Apr. 17, 2012) (“The Court considers this to be one reason why individualized conciliation may not be required for section 707 claims, but is required for section 706 claims. . . . Where retrospective relief is sought, including emotional distress damages as sought here, ‘then it follows that there must be some discussion of the merits of individual cases.’” (internal citation omitted)). That each § 706 claimant’s case must be subject to individualized conciliation necessarily implies that a § 707 claim would also require its own distinctive effort at conciliation.
The EEOC has failed to persuade the Court that it need not undertake distinct analyses of § 706 conciliation and § 707 conciliation. The Commission argues that “[t]here is no statutory requirement that the EEOC separately conciliate based on the legal theories that it would use to prove its case in court.” (Doc. No. 136 at 30.) This of course is true, but — for better or for worse — so much of what it means to adequately conciliate has been supplied by courts. That the statute does not expressly mandate claim-by-claim conciliation does not, by itself, indicate that no such duty exists. The EEOC also argues that its “conciliation efforts in this case pre-date, by several years, this Court’s orders regarding the separation of its hiring claim into a ‘706 claim’ and a ‘707 claim.’” (Id. at 30 n.82.) This too is a true statement, but not a particularly
10

persuasive argument. Courts have long understood there to be a difference between the two sorts of claims, as the EEOC should know better than anyone, and the Commissioner’s Charge in this case cited both code sections, indicating that the EEOC has long had some idea that it would be asserting both types of claims, (see Doc. No. 119-5 at 2).
Still, the Court wants to be clear that it is not suggesting that the EEOC must hold § 706 meetings and § 707 meetings, send § 706 letters and § 707 letters, and tell an employer during the course of negotiations whether each and every comment is a § 706 remark or § 707 remark. Conciliation is meant to be informal, and so the Court hesitates to impose rigid rules and regulations upon the Commission. The Court can imagine that, in some instances, the Commission may seek to settle one type of claim, without holding protracted talks on the other — the theory being that any sizeable settlement is good enough — and so may not put as much emphasis during conciliation on certain of its claims. In that vein, the Court does not believe it appropriate to force the Commission to request separate monetary settlements, one for § 706 and another for § 707. And, since it seems possible that voluntary compliance measures — fixing hiring practices and the like — could often ameliorate the root causes of both types of claims, the Court does not believe the EEOC should be forced — not by the judiciary, anyway — to treat voluntary compliance with § 706 differently from voluntary compliance with § 707.1 See, e.g., EEOC v. State of Ariz., Dep’t of Admin., 824 F. Supp. 898, 901 (D. Ariz. 1991) (“Generalized conciliation is acceptable for prospective relief.”). The bottom line is that, while the Commission cannot wholly ignore any of the claims it intends to eventually bring in court, and certainly must apprise the would-be defendant of some basis for any claim it will ultimately press in litigation,
1 To be sure, the foregoing analysis is tempered by the fact that the Commission cannot “attempt conciliation on one set of issues and having failed, litigate a different set.” EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 19 (2d Cir. 1981) (internal citation omitted).
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this Court does not believe the EEOC must undertake separate and distinct conciliation processes for each of its claims.
B. Did the EEOC Conciliate In Good Faith? As discussed above, the Fifth Circuit in Agro, 555 F.3d 462, suggested a three-part framework for what courts should expect the Commission to have done during conciliation: “(1) outline to the employer the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer.” Id. at 468 (citing Klingler, 636 F.2d at 107). In this case, however, many of Bass Pro’s arguments as to why conciliation was inadequate span multiple of those prongs. That is, with respect to whether the EEOC was justified in not sharing how it computed the statistical shortfall at issue under § 707, that could be said to influence both whether the Commission outlined reasonable cause for its belief that a violation had occurred, and whether it responded in a reasonable and flexible manner to the reasonable attitudes of the employer. Thus, rather than structuring its analysis around the threepart Agro test, the Court offers a more integrated analysis.2
1. § 707 Pattern-or-Practice Claim With respect to the § 707 claims, Bass Pro acknowledges that the EEOC did engage in conciliation, but argues that it failed to do so in good faith. (Doc. No. 119-1 at 8.) The EEOC “alleg[ed] a ‘shortfall’ of 1,000 Black and Hispanic hires at Bass Pro” and “made an enormous settlement demand — $30 million — but refused to provide Bass Pro with basic information
2 One allegation, discussed by Bass Pro at this Court’s hearing, but which the Court does not focus on herein, is the Commission’s use of “threats” during conciliation. Bass Pro complains that the Commission threatened lengthy litigation, significant public exposure, and the possibility of more than $300 million in liability. Not only do the first two seem as though they would go without saying, they also seem fairly innocuous. As for the latter, Bass Pro has cast some doubt upon whether the Commission could ever win such a large figure in Court, but that the Commission may have been wrong is not so indicative of bad faith that it alters the Court’s conclusion in any way.
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necessary to assess its potential liability or its damages exposure.” (Id.) Bass Pro further complains that “the EEOC steadfastly refused to describe the statistical methodology it used to determine the alleged ‘shortfall,’” — or to make available the expert that crunched the numbers — declined to alert Bass Pro to an allegation that the company founder had “directed” managers to discriminate, and failed to adequately explain its damages calculation. (Doc. No. 119-1 at 89). Bass Pro contends that these shortcoming demonstrate that the Commission failed to outline the basis for its charge and did not act in a reasonable and flexible manner, and thus that dismissal is appropriate.
A review of the relevant facts is necessary here. It was clear from just about the beginning of this case that the Commission would be bringing a § 707 pattern-or-practice claim. Not only did the Charge and the Amended Charge explicitly cite § 707 (Doc. No. 119-4; Doc. No. 119-5), the latter document referred to Bass Pro’s policies and practices, (Doc. No. 119-5 at 2-3). That there would be a statistical shortfall claim was laid out during the investigation, not later than June 2009. (Doc. No. 136-3 at 5.) And by April 2010, as the investigation wrapped up and the parties began to shift their focus to conciliation, Bass Pro had begun to request the statistical model used to arrive at the alleged shortfall and made clear that it would not respond to the substance of that allegation until it had more information. (Doc. No. 119-9 at 2.)
Bass Pro struck a similar note as soon as conciliation began, explaining in its May 14, 2010 letter that it would need the basis for the statistical shortfall claim before it would make a meaningful proposal. (Doc. No. 119-15 at 2-3.) The EEOC position was no less clear: it explained in its May 20 response that it had based the statistical shortfall claim on data provided by Bass Pro, comparing that information to “independently chosen comparators” (Doc. No. 119-
13

16 at 2), but that additional information would not be forthcoming. In that letter, Bass Pro demanded $35 million as part of any settlement. (Id.)
Unsurprisingly, Bass Pro’s June 3 reply balked at the EEOC’s unwillingness to share more information on the statistical shortfall. It offered just $1 million, not as a substantive response to the EEOC’s claims — Bass Pro did not believe it had the information necessary to do so — but just to make the case go away. (Doc. No. 119-7 at 3; Doc. No. 119-19 at 2.) In response, the Commission did not change its stance, but explained further that the likelihood of a statistical shortfall like the one it had documented was less than one-in-a-million and that Bass Pro would be potentially liable for $300,000 for each individual employee who would have been hired but for the alleged pattern or practice, for a grand total of $300 million. (Doc. No. 119-18 at 3.) With no change from the EEOC, Bass Pro likewise did not alter its tune in its reply. It again asked for more information on the statistical claim, noting that it “[knew] of no valid method whereby a statistical conclusion such as that claimed by the EEOC can be reached.” (Doc. No. 119-19 at 3.)
The parties offer conflicting takes of what exactly happened at the meeting in Dallas on August 4, 2010, but it seems as though the EEOC may have explained its statistical model in greater detail, though no one claims the Commission provided the model itself. (Doc. No. 142-2 at 3; Doc. No. 136-3 at 10-11.) The EEOC decreased its monetary demand to $30 million, but without more information on the statistics, Bass Pro increased its offer to only $1.7 million. (Doc. No. 136-3 at 10-11; Doc. No. 119-6 at 10.) Bass Pro reiterated its unwillingness to make a more substantial offer without additional information. (Doc. No. 136-7 at 3-4; Doc. No. 119-6 at 10.) During the August 4 meeting, Bass Pro suggested its expert meet with the Commission’s. (Doc. No. 119-6 at 10.)
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Following the meeting in Dallas, the parties continued to exchange letters, but little changed substantively. Bass Pro showed no willingness to budge from its request for the methodology and data underlying the § 707 claim (Doc. No. 119-22 at 3); the Commission expressed a general unwillingness to continue negotiating while the two parties were so far apart on monetary terms. (Doc. No. 119-23 at 2-3.) The EEOC rejected the idea of a meeting between the experts, asserting that to do so would be “unprecedented” (Doc. No. 120 at 3-4); Bass Pro asserted the Commission was guilty of “bad faith bullying,” (Doc. No. 119-24 at 3). By midOctober, with the parties at an impasse regarding what information would be shared, and $28 million dollars apart on a monetary settlement — and with little movement from either side — the Commission began to float the possibility that it was time to end conciliation. (Doc. No. 120 at 10.) Bass Pro’s response to that letter only reiterated what it had said all along: it would not increase its settlement offer without more information. (Doc. No. 120-1 at 12.) Finally, upon receiving that correspondence, the Commission asserted what should have long been clear to all: conciliation was going nowhere and the EEOC would be deeming it a failure. (Doc. No. 120-2 at 2.)
Even once conciliation had officially failed, the parties exchanged a few more letters that at least paid lip service to the possibility of settlement/conciliation. The result, however, was the same: the Commission wanted a better offer but would not give information; Bass Pro wanted more information or else it would not make a better offer. (Doc. No. 120-6; Doc. No. 120-7; Doc. No. 120-8; Doc. No. 120-9.)
Having reviewed that record, the Court cannot say that the Commission negotiated in bad faith.
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First, the Court is not quite willing to credit that Bass Pro was as helpless as it let on. It had a broad outline of how the EEOC computed the statistical shortfall and it knew what the EEOC considered that shortfall to be. The EEOC did not, as Bass Pro intimates, fail to disclose “the results of its investigation.” La Rana Hawaii, 888 F. Supp. 2d at 1045. Perhaps Bass Pro did not know which competitors its hiring data had been compared to or, with respect to comparisons to census data, which geographical areas the Commission had used. (Doc. No. 1363 at 10-11; Doc. No. 142-2 at 3.) But Bass Pro had its own expert; at some point along the way, it could have picked a competitor store, or picked a geographic region, and come up with its own statistics to counter the Commission’s assessment. Even without producing a statistical finding of its own, Bass Pro could have begun to make more modest requests of the Commission. It also could have made a monetary settlement offer more in line with those proposed by the Commission and made it contingent upon seeing sufficient statistical support for the Commission’s claims. And, it remains uncontroverted that it would be “unprecedented” for the EEOC to make its consulting expert available to Bass Pro, so for this Court to in effect hold that it was nevertheless required to do so would not be fair. Suffice it to say, the Commission may have been frustratingly obstinate, but so too, it appears, was Bass Pro.
Second, it is important to consider the context and what else was going on as these negotiations took place. Indeed, the Court cannot ignore that the parties met and exchanged letters over a period of several years — fruitlessly — before conciliation officially began. To be sure, conciliation should be considered as its own discrete process, distinct from the investigation, in view of the statutorily mandated sequential enforcement scheme, but it would be naïve to think that how the parties interacted prior to the onset of conciliation would not affect their interactions once it had begun. Thus, it is significant that, even before conciliation
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officially began, the Commission expressed its belief that it had found “evidence in several stores of record destruction, including that of minority applicants” and “evidence in several stores of [Bass Pro] not retaining applications.” (Doc. No. 119-8 at 4.)
More recently, the Commission in October 2010 expressed its belief that Bass Pro had, “at many turns, recanted on promises and ultimately deprived [the EEOC] of considerable evidence” and that it “ha[d] not fully cooperated with the investigation.” (Doc. No. 120 at 2.) The Commission alleged that Bass Pro did not provide a position statement or witness statement, refused to submit documents in response to some of the Commission’s requests and “belatedly admitted to destroying all the audiotapes containing then current employee[s’] urgent complaints regarding discrimination and harassment.” (Id. at 2-3.) The Commission also alleged that Bass Pro refused to provide a list of over fifty names of employees who complained of discrimination and/or harassment on a Bass Pro hotline. (Id. at 3.) Finally, the EEOC complained that, though Bass Pro made available for depositions some store managers and the four highest ranking corporate Human Resource managers, Bass Pro had “imposed unreasonable time limitations on most of those interviews as well as other constraints.” (Id. at 4.)
Perhaps some of these allegations were untrue, exaggerated, or misunderstood. Bass Pro certainly believes that to have been the case. (See Doc. No. 120-1.) The Court does not possibly have all the evidence it would need to decide who was right and who was wrong about Bass Pro’s willingness to cooperate, and in fact, it is not particularly inclined to parse every stray allegation these parties have made about how the other has behaved. The point is that, by late 2010, the Commission seems to have amassed numerous concerns with Bass Pro’s conduct, perhaps just as many as Bass Pro had regarding the Commission’s willingness to negotiate. It is the Court’s experience that this is fairly common when two parties engage in protracted, high-
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stakes negotiations; to hold that against the Commission would force it to meet an unfairly rigorous standard. There is a difference between bad faith and tried patience.
Third, and to that same point, the Court is unwilling to place too much weight upon the various monetary settlement offers exchanged. That both parties showed a general stubbornness with respect to expectations for a monetary settlement was almost entirely derivative of their disagreement on what information ought to be shared. That the EEOC’s monetary demands were far higher than what Bass Pro offered, and that neither party ever really budged on that front, does not alter the Court’s conclusion.
Fourth, with respect to the exchange of anecdotal information, Bass Pro points to the fact that the Determination made “absolutely no mention of the EEOC’s most prominent allegation in the Second and Third Amended Complaints: that Bass Pro’s founder and owner made statements that constituted a ‘directive’ to discriminate.” (Doc. No. 119-1 at 24-25.) That is true, but, based on the fairly exhaustive, if somewhat vague, allegations contained in the Determination, it should not have been surprising that the EEOC would seek to put on evidence of a top-down policy of discrimination. Moreover, Bass Pro knew, before that Determination was even issued, that the Commission boasted evidence that managers “instructed subordinates to avoid hiring qualified minorities.” (Doc. No. 119-8 at 3.) The Court understands why Bass Pro would want to know of every such instance, especially if the company’s founder was involved, but, given that the Commission need not “produce as much evidence as [it] would need to prevail at trial, to satisfy the alleged wrongdoer or to meet some nonexistent burden of proof,” Sun Oil, 605 F.2d at 1335, the Court is not inclined to find dispositive that the EEOC failed to disclose some of its anecdotal evidence. Further, that Bass Pro’s briefing in this case argues that it should have had an
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“opportunity to respond to this untrue allegation” suggests that sharing it would have led only to another rote denial.
None of this is to say that the Court is particularly impressed by the EEOC’s conciliation efforts. For instance, revealing earlier on that the company’s founder encouraged discrimination seems like it would have increased the odds of a settlement. What national retailer would like such information revealed in the course of a public trial? Based upon the record before the Court, it appears conciliation was never particularly likely to succeed. And now, not only has the EEOC come perilously close to having its claims thrown out for failure to conciliate, it has expended significant resources litigating this case, will likely have to expend significantly more, and could ultimately lose and get nothing for its efforts. Nonetheless, that it failed to make conciliation count is not necessarily indicative of bad faith.
Ultimately, the Court believes this to be a case where “the parties’ proposals and discussions [we]re so divergent as to seem irreconcilable,” and so it “will not require the EEOC to conduct Sisyphean negotiations to meet its statutory mandate to conciliate.” Bloomberg II, 751 F. Supp. 2d at 640 (analyzing conciliation of § 707 claims). As in Bloomberg II, “[g]ven the parties’ communications during conciliation, the EEOC likely had little hope of making significant progress.” Id. Thus, “[m]aking inferences in a light favorable to the EEOC, the Court cannot say that the EEOC failed to make a good faith effort to conciliate the discrimination claims.” Id.3
3 The Court is well aware that, with respect to other claims, the Bloomberg II court explained: Faced with a grand total of over $41 million in monetary demands, Bloomberg requested more information about the charges and the basis for the EEOC’s determination before proceeding to make monetary offers. Bloomberg's attitude was reasonable: it was faced with large monetary demands and wanted additional information to evaluate the claims and respond accordingly. Bloomberg, throughout the letter exchange, stated that it was amenable to further discussions, including discussions on classwide claims. Importantly, its posture here stands in marked contrast
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2. § 706 Failure-to-Hire Claim4
First, with respect to the Commission’s § 706 failure-to-hire claim, Bass Pro has argued
that, “[d]espite . . . repeated requests, the EEOC refused to identify a single allegedly aggrieved
individual in either the original or amended Commissioner’s charge, in its reasonable cause
determination, or during conciliation.” (Doc. No. 119-1 at 8.) Because it believes the EEOC
“simply skip[ped] the statutorily required conciliation process,” it urges the Court to dismiss the
§ 706 failure-to-hire claims. (Id.) An inquiry similar to the one above into just how conciliation
transpired is necessary to determine whether the Commission’s efforts were reasonable under the
circumstances.
Both the original Charge, issued in February 2007, and the Amended Charge, issued in
May 2008, explicitly refer to § 706. (Doc. No. 119-4 at 2; Doc. No. 119-5 at 2.) The Amended
Commissioner’s Charge explained that “persons aggrieved include all applicants, deterred
applicants, employees and former employees who have been, continues to be, or will in the
future be adversely affected by any of the unlawful employment practices set forth in the
foregoing charge.” (Doc. No. 119-5 at 3.) It was not more specific than that.
In the course of the EEOC investigation, Bass Pro asked for details of all specific
incidents referred to by the Commission (see, e.g., Doc. No. 119-9 at 3, 4), though it did not ask
to its approach to the EEOC’s conciliation efforts for the discrimination claims, where Bloomberg essentially refused to discuss class-type relief at all. Yet the EEOC refused to offer any additional information about its determinations. (Wong Decl. Ex. 45.) The most it offered was vague statements that it had interviewed a “fair number” of women and then extrapolated from those interviews an amount it determined was acceptable for the class claim pool. [Citation.] In the specific circumstances of this case, where the charges were varied and numerous, the basic information provided to outline the charges was insufficient for Bloomberg to be able to formulate a reasonable monetary counteroffer. Bloomberg II, 751 F. Supp. 2d at 641-42. Here, where the EEOC sought to bring a statistical hiring case, the Court believes that Bass Pro had enough information that its unflagging demands for more were not quite so reasonable. 4 The analysis that follows does not apply to the “at least twenty claimants named in the Third Amended Complaint . . . did not even apply for employment with Bass Pro until after the EEOC issued its Determination on April 26, 2010.” (Doc. No. 119-1 at 21.) The Court addresses these individuals separately.
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for the names of specific individuals on whose behalf the EEOC might be pressing failure-to-hire claims. When the Commission issued its Letter of Determination, it noted that one discriminatory practice it believed Bass Pro to be guilty of was “[f]ailing to recruit and/or hire” African Americans, Asians, and Hispanics. (Doc. No. 119-11 at 3.) The Determination added that “evidence obtained during the investigation establishes reasonable cause to believe that there is a violation of Title VII, in that the Respondent . . . deterred and chilled African American and/or Blacks and Hispanics from applying for employment.” (Id. at 5.) It also said that potential remedies for Bass Pro’s violations are designed “to make victims whole.” (Id.) But, the Determination did not offer an estimate of how many victims would make up a potential § 706 class or include any information about those individuals.
Once conciliation began in May 2010, Bass Pro again called for details regarding specific incidents of discrimination. (See, e.g., Doc. No. 119-15 at 3, Doc. No. 119-17 at 3.) Those requests, however, can be interpreted as asking for the specifics of particular discriminatory acts, like the use of racial slurs, by Bass Pro employees, and not the specifics of each minority candidate Bass Pro had failed to hire. For instance, in its May 14, 2010 letter, Bass Pro asked for “information necessary for Bass Pro to understand and evaluate specific instances of alleged discrimination described in the Predetermination Letter.” (Doc. No. 119-15 at 3 (emphasis added).) The Commission’s April 12, 2010 pre-Determination letter did not discuss specific instances of Bass Pro failing to hire minority applicants. Rather, the letter spoke more of specific occasions on which racial slurs were used or sexual harassment occurred; the closest it came to discussing specific failures to hire was an allegation that “your own managers . . . instructed subordinates to avoid hiring qualified minorities.” (Doc. No. 119-8 at 3.) Thus, the Court believes it would be fair to read that letter — and appropriate on summary judgment, where the
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Court draws inferences in favor of the non-moving party — as not having asked for a list of all minority applicants on whose behalf the Commission would be bringing a § 706 claim. A similar analysis of Bass Pro’s June 3 letter (Doc. No. 119-17) leads to the same conclusion.5
In its June 21, 2010 letter, the EEOC referred to compensatory and punitive damages, suggesting that it would likely bring claims on behalf of individuals, but offered little more on the specifics of class composure. (Doc. No. 119-18 at 3.) As for the August 4 meeting in Dallas, the EEOC’s attorney, Deputy Director Martin Ebel, has stated that Bass Pro did not indicate at that meeting that it wanted the names of individual claimants. (Doc. No. 136-7 at 3.) Somewhat to the contrary, Bass Pro’s former counsel, Ms. White, says that Mr. Ebel “asserted that the EEOC had identified approximately 100 specific individuals who were alleged victims of discrimination, but stated that the EEOC would not provide Bass Pro with the names of any alleged victims except in the form of a global settlement.” (Doc. No. 119-6 at 9.) Still, Ms. White did not state that she asked for information about individual victims.
The parties continued to exchange letters at a fairly rapid clip, with Bass Pro repeatedly asking for more information of all sorts and the Commission generally declining, often by telling Bass Pro that it already had the information it was asking for. In an October 14 communication, the EEOC reminded Bass Pro that “[w]e have also repeatedly advised Bass Pro Shops of extensive anecdotal evidence of a broad range of recruiting, hiring, terms and conditions, adverse discipline, and failure to promote protected class members at issue in this case, namely African American, Hispanic, Asian American and female applicants and employees.” (Doc. No. 120 at
5 The Court should note that Bass Pro attached to its June 3 letter a series of Requests For Information. (Doc. No. 119-7 at 5-44.) As the Commission has noted, that document contained seventy-seven requests with over 570 subparts. (Doc. No. 136 at 17.) Some of these requests did seek to ascertain the identity of classmembers. (See Doc. No. 119-17 at 30-31.) But that document, as a whole, was so wide-ranging, and sought such a herculean effort on the part of the Commission, that the Court is not willing to rely on it as evidence of exactly what Bass Pro needed before it would meaningfully engage in conciliation. Propounding such a document does not necessarily seem consistent with genuinely trying to reach a workable solution through informal means.
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4.) Still, nothing in the record suggests that Bass Pro had offered specific information about potential class members. In its response on November 1, Bass Pro, perhaps for the first time, asked explicitly for the Commission to “identify a description of the individuals from whom the EEOC seeks relief.” (Doc. No. 120-1 at 12.) The EEOC’s next letter, however, made clear that it planned to deem conciliation a failure. (Doc. No. 120-2 at 2.) It did not provide Bass Pro with the information it had sought. (Id.)
It is important to situate the back-and-forth on the § 706 claim within the context of the broader conciliation process. The letters focused mostly on the statistical shortfall claim and the specific instances on which Bass Pro employees said or did something egregious; whereas Bass Pro did repeatedly request the statistical undergirding for the § 707 claim, relatively little ink was spilled trying to home in on the specifics of the § 706 claim.6 And the parties disagreed so mightily on what was required with respect to the pattern-or-practice claim — again, as explained above — that, by the time Bass Pro expressly requested information on the § 706 class, conciliation had begun to look like an exercise in futility. Put another way, the Court understands why, when Bass Pro made an unambiguous request that the Commission identify members of the § 706 class in the final paragraph of its November 1, 2010 letter, the Commission no longer believed a settlement agreement was attainable. By then, the Commission had made up its mind.
That the Court can understand why the Commission did not respond to Bass Pro’s inquiry, however, does not excuse the same. The Court believes Bass Pro’s request for that information reflected a “reasonable attitude,” but the Commission’s nearly immediate decision to fail conciliation, at least with respect to the § 706 failure-to-hire claim, was not a “reasonable and
6 Indeed, Bass Pro appears to pay far greater attention to the § 706 claims in the course of this litigation than it did during conciliation itself.
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flexible” response. Klingler, 636 F.2d at 107. The Commission should have responded in kind
by providing at least some additional information about the § 706 claimants. Still, because the
Court has sanctioned the Commission’s decision to end conciliation of the § 707 claim when it
did, it would characterize the EEOC’s decision regarding the § 706 class as “prematurely
terminat[ing] negotiations,” not “fail[ing] to act in good faith.” Agro, 555 F.3d at 469 (citing
Klingler, 636 F.2d at 107). Consequently, it believes a stay is the appropriate remedy. Id.
Below, the Court first explains why the Commission ought to have provided the
information Bass Pro sought, and then turns to why it has chosen to implement a stay, and not
dismiss the claim outright, as a result.
a. Bass Pro Deserved Information Regarding Individual Victims, But Individualized Conciliation Was Not Required.
As a starting point, this Court rejects out of hand the notion that the EEOC must
undertake individualized conciliation efforts regarding each and every potential class member.
As the Fifth Circuit explained long ago
unnecessarily thorough investigations of individual cases would tend to transform the conciliation process into something contrary to congressional intent. . . . Not only would the process become too formalized and unduly prolonged, but its focus would be directed away from voluntary compliance with the law to endless and irreconcilable bickering about, for example, the meaning that should be ascribed to an inadvertent statement made by a supervisor to a terminated employee. Sun Oil Co., 605 F.2d at 1335;7 see also EEOC v. Bruno’s Rest., 13 F.3d 285, 289 (9th Cir.
1993) (“Moreover, ‘in a class action suit, [t]he EEOC is not required to provide documentation
of individual attempts to conciliate on behalf of each potential claimant.’” Id. (quoting EEOC v.
Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989))). The Sun Oil court speculated that requiring
7 Though an ADEA case, Sun Oil has long been applied in the Title VII context. See, e.g., Klingler, 636 F.2d at 107; Pet, Inc., Funsten Nut Div., 612 F.2d at 1002; EEOC v. Mach Min., LLC, 738 F.3d 171, 183 (7th Cir. 2013); Bloomberg III, 2013 WL 4799150; Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1244 (M.D. Ala. 2001).
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individualized conciliation on behalf of hundreds of class members could, by making the conciliation of such claims unreasonably expensive and time consuming, “reward the employer who discriminates on a large scale and undermine the legislative goal of obtaining voluntary compliance in these cases.” Id. at 1134.
Moreover, as another district court explained, requiring individualized conciliation would be “unworkable, for courts could articulate no standard by which to judge the adequacy of each conciliation effort, particularly in light of the law of diminishing marginal returns. ‘It would be wasteful, if not vain, to attempt to conciliate the claims of numerous employees, all with the same grievance. . . . If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume the next one would be successful[?]’” Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1246 (M.D. Ala. 2001) (quoting Sun Oil, 605 F.2d at 1338 n. 5).
The Court finds the concerns expressed in these cases to be well-placed. As Mr. Ebel explained in his declaration “[t]he EEOC, nationwide, attempts to conciliate about 4,000 to 6,000 charges per year.” (Doc. No. 136-7 at 6.) He said that, in 2012, for example, the Commission found cause to believe discrimination existed in 4,207 cases. (Id.) The EEOC was required to conciliate in each of them. (Id.) He opined that “[i]f many employers were to engage in conciliation in the unreasonable manner that Bass Pro did here, and if the EEOC were required to engage in efforts as extensive as those here in every conciliation, it would, in my judgment, adversely impact the EEOC’s ability to investigate charges, manage its caseload, and remedy discrimination.” (Id.) The Court can see why. The parties, in briefing and arguing it, and the Court, in deciding it, devoted considerable resources to this motion; it seems inconceivable to do so hundreds of times over whenever a large § 706 class claim is entertained.
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The Court also disagrees that EEOC must disclose the names of each and every member of the potential class. This Court held in Bass Pro II that “the EEOC is not obligated to provide the identities of all § 706 class members.” 884 F. Supp. 2d at 520. If the Commission did not have to plead the identities of all class members, it surely cannot be the case that the Commission was required to reveal that information during conciliation. Case law supports this conclusion. See, e.g., EEOC v. PBM Graphics Inc., 877 F. Supp. 2d 334, 361-62 (M.D.N.C. 2012) (“To the extent PBM complains that particular class members were not identified during the conciliation process, the EEOC is under no obligation to make such a disclosure.” (and collecting cases)); EEOC v. Paramount Staffing, Inc., 601 F. Supp. 2d 986, 990 (W.D. Tenn. 2009) (“Defendant argues that Plaintiff was obligated to disclose the identities of all two hundred class members, but this argument runs contrary to case law. ‘As long as the outline of the class is identified, each [person] within the ‘class' need not be specifically identified in the conciliation process.’” (quoting EEOC v. Cone Solvents, Inc., No. CIV.A. 3:04-0841, 2006 WL 1083406, at *9 (M.D. Tenn. Apr. 21, 2006))); EEOC v. Lockheed Martin Global Telecommunications, Inc., 514 F. Supp. 2d 797, 806 (D. Md. 2007) (“The EEOC is not required to identify . . . each potential claimant in order to satisfy its duty of good faith attempts at conciliation.”); EEOC v. Jillian’s of Indianapolis, IN, Inc., 279 F. Supp. 2d 974, 983 (S.D. Ind. 2003) (allowing EEOC to proceed on behalf of a local class even though it had not named each individual in the reasonable cause determination or conciliated individual class members).
To be sure, some recent decisions seem to indicate that the Commission must either conciliate on behalf of all potential classmembers or, as a slightly less extreme alternative, identify all potential class members by name. See EEOC v. CRST Van Expedited, Inc. (CRST II), 679 F.3d 657, 674 (8th Cir. 2012) (affirming district court’s dismissal on the grounds that the
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EEOC “did not attempt to conciliate the specific allegations of the 67 allegedly aggrieved persons prior to filing the Complaint”);8 Bloomberg III, 2013 WL 4799150, at *7, *9 (dismissing
§ 706 claims brought on behalf of twenty-nine claimants where the EEOC denied Defendant “a
meaningful opportunity to conciliate any individual claims”); EEOC v. Swissport Fueling, Inc.,
916 F. Supp. 2d 1005, 1038 (D. Ariz. 2013) (finding lack of good faith “[b]ecause [the
Commission] refused to provide Swissport with information on the individual claims for which it
sought compensatory damages”). This Court joins the growing ranks of those that disagree. See,
e.g., EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., 918 F. Supp. 2d 1171, 1179 (D.
Colo. 2013) (“Digging somewhat deeper, however, there can be a difference between the
significance of pre-litigation disclosure of the alleged unlawful conduct and pre-litigation
disclosure of the specific identities and number of aggrieved persons.”); EEOC v. Evans Fruit
Co., Inc., 872 F. Supp. 2d 1107, 1111 (E.D. Wash. 2012) (“The undersigned is not persuaded the
Ninth Circuit would adopt a rule that the EEOC must specifically identify, investigate and
conciliate each alleged victim of discrimination before filing suit.”). The Court believes that Sun
Oil and the cases relying on it were right in deciding that the EEOC would cease to be an
8 The panel’s opinion in CRST inspired a spirited dissent by Judge Murphy. 679 F.3d at 695 (Murphy, J., dissenting). She asserted that “[n]either Title VII nor our prior cases require that the EEOC conduct its presuit obligations for each complainant individually when litigating a class claim. Rather, we have required that the EEOC perform these duties for each type of Title VII violation alleged by the complainant.” Id. at 696. Judge Murphy further explained that:
The majority’s new requirement that the EEOC separately investigate and conciliate each alleged victim of discrimination is inconsistent with the purpose of Title VII. Under this standard employers can avoid disclosure to the EEOC of complaining workers while the Commission is conducting its investigation and conciliation, then reveal the names during court ordered discovery, and seek dismissal of the entire case on the ground of inadequate presuit efforts by the EEOC. This punishes the EEOC for employer recalcitrance and weakens its ability to enforce Title VII effectively. It also frustrates the underlying goal of the 1972 amendments intended to strengthen the EEOC’s enforcement powers. Id. at 696-97. As should be clear from its analysis, this Court believed Judge Murphy had the stronger arguments.
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efficient enforcer of Title VII if it were obligated to conciliate each and every individual classmember’s claim.
Rather, the EEOC must share with Defendant “the outline of the class and provide the employer with sufficient information to understand the basis of the allegations and fully engage in the conciliation process.” EEOC v. Rock-Tenn Servs. Co., Inc., 901 F. Supp. 2d 810, 819 (N.D. Tex. 2012) (citing Hibbing Taconite, 266 F.R.D. at 274; Paramount Staffing, 601 F. Supp. 2d at 990; Cone Solvents, 2006 WL 1083406 at *9). In breathing life into that standard, this Court is hesitant to impose any arbitrary requirements as to what the EEOC must always do. Must it always disclose the identities of some class members? On the surface, that seems reasonable. But who defines some and how do they do it? More fundamentally, what good would such a requirement do? Perhaps the employer could investigate those particular claimants and bring forth evidence that some do not belong in the class, but if those investigated claimants did not comprise the entire class, the Commission could just then assert that it would proceed to represent other, unnamed victims. What then? Another round of exchanging information about individual victims? The permutations abound, and so the Court shies from anything that begins to look like a per se rule. The Court feels strongly that “[t]he adequacy of the EEOC’s conciliation attempts should be viewed on a case-by-case basis.” Swissport Fueling, 916 F. Supp. 2d at 1037 (citing State of Ariz., Dep’t. of Admin., 824 F. Supp. at 901). As such, it “rejects a categorical interpretation of CRST to limit the EEOC’s remedy to aggrieved individuals who are specifically identified in the pre-litigation process.” Original Honeybaked Ham, 918 F. Supp. 2d at 1180.
Still, in this case, the EEOC ought to have provided more information. For instance, had Bass Pro had a better sense of how the class was comprised, it could have helped to weed out
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claimants who had in fact been hired or whose claims did not arise until after the Commission
issued its Letter of Determination. (Doc. No. 119-1 at 21.) As Bass Pro has argued, it could not
have done so without the Commission sharing more information: Bass Pro explained at this
Court’s hearing that it received more than a million applications between 2005 and 2010 and
that, with respect to greater than ninety percent of the applicants, it did not have information on
their race or national origin. Given a greater sense of the class composition, Bass Pro could have
“respond[ed] to [individual] claims and show[n] why discrimination did not occur in a given case.” Id.9 And, with respect to the damages sought, as another district court has noted,
“[c]ompensatory damages are calculated on an individualized basis, taking into account the
claimant’s future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish,
and more.” Swissport Fueling, 916 F. Supp. 2d at 1038. Without “information on the individual
claims for which it sought compensatory damages,” — or at least some of those claims — Bass
Pro “was not afforded enough notice to meaningfully participate in the conciliation process.” Id.10
There are alternatives to sending a list of every class member or a detailed summary of
his or her claim. Indeed, “there can be a difference between the significance of pre-litigation
disclosure of the alleged unlawful conduct and pre-litigation disclosure of the specific identities
and number of aggrieved persons.” Original Honeybaked Ham, 918 F. Supp. 2d at 1179.
9 Bass Pro has also asserted that, with information about class composition, it could “attempt to resolve through conciliation any claim the EEOC determined to have reasonable cause.” (Doc. No. 120-1 at 21.) To the extent it means that it could have conciliated each and every individual claim, the Court has already explained why the Commission need not do so. 10 Bass Pro has also argued that, by not disclosing the identity of its classmembers, the Commission contravened its own Compliance Manual, which calls, albeit in the context of a pattern-or-practice claim, for the EEOC to “[d]efine the protected classes, detailed enough to permit the identification of persons in the class.” EEOC Compliance Manual § 34.7, 2006 WL 4673160. The Court hesitates to place too much weight on this document, because it could, and perhaps should, be the case that the Commission requires of its staff more than the bare minimum of what the law will tolerate. Put another way, the Court believes that there could be efforts at conciliation that fall short of the EEOC’s guidelines but nevertheless pass muster in court. This Court does not sit to conduct performance reviews.
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Alternately, the Commission could have explained how it came to the conclusion that compensatory damages were appropriate, and perhaps that would have settled the issue somewhat. Or it could have disclosed more regarding “the nature, extent, location, time period, and persons involved in the” failure-to-hire class, which may have aided Bass Pro in “reasonably estimate[ing] the number and identities of persons who may have been impacted.” Honeybaked Ham, 918 F. Supp. 2d at 1180. The Court is not going to tell the EEOC exactly how to do it, but it does feel that, under the circumstances, it should have provided Bass Pro with more information.
b. The Proper Remedy Is A Stay. As introduced above, the Commission decided conciliation had failed barely two weeks after Bass Pro requested the identities of the § 706 victims and without offering a substantive response. The Court believes that to be indicative of premature termination, not bad faith. To dismiss the case would be “too harsh a sanction,” Klingler, 636 F.2d at 107,11 in light of the fact that the EEOC had negotiated with Defendant for quite some time — six months as part of the official conciliation, and far longer given that the parties seem to have spoken often during the investigation — and was justified, when it ended conciliation altogether, to do so with respect to the § 707 claim. Quite simply, the Court does not believe the Commission’s conduct to have been “grossly arbitrary and unreasonable.” Agro, 555 F.3d at 469. The facts of Agro are instructive. The Fifth Circuit there said that dismissal would not have been an abuse of discretion — importantly, it did not suggest that the District Court should have dismissed for failure to conciliate — in light of the fact that the Commission issued a Letter
11 In Klingler, the EEOC negotiated with defendant for more than two years before ultimately ending conciliation when defendant failed to satisfy the Commission’s request for certain data. Klingler, 636 F.2d at 106. Without more information about the nature and course of conciliation attempts in Klingler, the Court acknowledges that the case for dismissal is stronger here than it seems to have been there.
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of Determination and simultaneously made a settlement proposal and then, without ever having spoken to defendant, announced one month later that conciliation had failed. Id. at 467. Persuaded to reopen conciliation, the Commission failed to respond at all to a question posed by defendant and waited ten months to reject defendant’s settlement offer. Id. Bass Pro points to Agro’s references to an “insupportable demand for compensatory damages as a weapon to force settlement” and to a “take-it-or-leave-it demand,” id. at 468, and argues that the Commission behaved similarly here, but putting those quotations in context, the Commission was far more accommodating and responsive in this case than it was in Agro.
Bass Pro also relies upon EEOC v. First Midwest Bank, N.A., 14 F. Supp. 2d 1028 (N.D. Ill. 1998), in which Bass Pro believes “the EEOC’s conduct [wa]s remarkably similar to its conduct” here (Doc. No. 119-1 at 27), to support its argument that dismissal is appropriate. It is true that there, like here, the Commission failed to provide information about individual classmembers. Id. at 1032. And ultimately, the Court in First Midwest did find a lack of good faith. Id. at 1033. But there was a pervasive failure to communicate there. See, e.g., id. at 1033 (“First Midwest accepted the EEOC’s offer to meet, but could only schedule a meeting in the first few days of October. Within four days, the EEOC determined conciliation efforts had failed.”). The Court does not believe that to have been the case here. Likewise, there was an arbitrariness to the EEOC’s conduct in First Midwest, see, e.g., id. (“Additionally, the EEOC provides no explanation for why September was the cut-off date for conciliation negotiations. It appears to be an arbitrary date with no particular meaning and, under the circumstances, there is no reason conciliation negotiations could not have continued into October.”), far beyond what took place here. Finally, not only is First Midwestern a non-binding district court opinion that is factually distinguishable, but it also loses persuasive value in light of the fact that the court did
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not believe that dismissal was a permissible remedy, id. at 1031. There is no telling whether it would have levied such a drastic sanction had it been so empowered.
The Court acknowledges that at least two more recent decisions suggest that it has acted too leniently here. In CRST II, 679 F.3d 657, the Eighth Circuit affirmed by a 2-1 vote the district court’s decision to “bar[] the EEOC from pursuing claims as to 67 women based on its conclusion that ‘the EEOC did not investigate, issue a reasonable cause determination or conciliate the claims.’” Id. at 672 (quoting EEOC v. CRST Van Expedited, Inc. (CRST I), No. 07-CV-95-LRR, 2009 WL 2524402, at *19 (N.D. Iowa Aug. 13, 2009)).12 There, from “the date that the EEOC filed suit, until nearly two years thereafter, the EEOC did not identify the women comprising the putative class despite the district court’s and CRST’s repeated requests to do so.” Id. at 669. In fact, “[t]he district court concluded that the EEOC did not know how many allegedly aggrieved persons on whose behalf it was seeking relief, but [i]nstead . . . was using discovery to find them.” Id. (internal quotation marks omitted). The district court believed that this represented “the EEOC . . . wholly abdicat[ing] its role” and thus that a stay was more appropriate than dismissal. CRST I, 2009 WL 2524402, at *19 n.24. Affirming the district court’s use of its discretion to do so, the court of appeals explained that, where the EEOC fails to “appris[e] the employer of the charges lodged against it, the employer has no meaningful opportunity to conciliate.” CRST II, 679 F.3d at 676.13
CRST is distinguishable on several grounds. First, in CRST, the defendant had made “repeated requests” for the Commission to disclose the identities of putative class members, id.
12 The Eighth Circuit panel in CRST cited the district court’s opinion numerous times. This Court will omit further internal citations to the opinion below. 13 Dissenting, Judge Murphy asserted that “the EEOC made genuine efforts to resolve the dispute administratively and it was CRST that thwarted administrative resolution by providing the EEOC with incomplete information and rejecting its conciliation proposal. Given the EEOC’s substantial presuit efforts, the district court’s dismissal of trial worthy claims on the ground that the EEOC failed to complete its statutory duties should be reversed. At most, the case might have been stayed for further conciliation.” CRST, 679 F.3d at 697 (Murphy, J. dissenting).
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at 669, whereas here, Bass Pro only made one particularized request. Second, the CRST district court determined that the EEOC had not even identified class members for its own purposes before litigation began, and based its holding just as much, if not more, on a failure to investigate as on a failure to conciliate. See id. at 676-77. Here, the EEOC only, as Bass Pro puts it, “refused to identify those claimants it said it had discovered.” (Doc. No. 119-1 at 20.) While Bass Pro characterizes this behavior as more egregious, id., the Court believes the opposite is true: unlike in CRST, the allegations of abdication of duty are almost entirely confined here to conciliation.14 Third, well into the third year of litigation in CRST, “it was unclear whether the instant Section 706 lawsuit involved two, twenty or two thousand allegedly aggrieved persons.” CRST II, 679 F.3d at 669 (internal quotation marks omitted). Here, Bass Pro appears to have been given at least a rough estimate of the class size by August 2010, squarely in the middle of the conciliation period. Likewise, the Charge that initiated this case was a commissioner’s charge, and one that explicitly cited § 706, whereas in CRST, the charge was made only by an individual claimant, id. at 666, and thus was less likely to give the employer notice that classwide discrimination would likely be alleged. Finally, the § 706 claim at issue here is for failure to hire, which the Commission believes “do[es] not require a highly individualized assessment” (Doc. No. 136 at 36 n.92), while CRST dealt with a claim that the employer was responsible for sexual harassment of existing employees. Id. at 667. With respect to such claims, “there is less of a basis to presume that all members of the protected class are similarly aggrieved, the severity and pervasiveness necessarily varies for each aggrieved person, and unwelcomeness carries a subjective element.” (Doc. No. 136 at 36 n. 92.)
14 Bass Pro does complain that “at least twenty claimants named in the Third Amended Complaint . . . did not even apply for employment with Bass Pro until after the EEOC issued its Determination on April 26, 2010.” (Doc. No. 119-1 at 21.) The Court addresses these individuals separately.
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In Bloomberg III, at least partially because of the Commission’s failure to identify claimants, the court held that the EEOC had “completely abdicate[d] its role in the administrative process.” 2013 WL 4799150, at *10. Relying in part on CRST, It held that “the appropriate remedy [would be] to bar the EEOC from seeking relief on behalf of the Non-Intervenors at trial and dismiss the EEOC’s Complaint.” Id. at *10. Chief Judge Preska “recognize[d] that certain of the Non-Intervenor claims may be meritorious but now will never see the inside of a courtroom,” but explained nevertheless that, to allow the claims to move forward “would be sanctioning a course of action that promotes litigation in contravention of Title VII’s emphasis on voluntary proceedings and informal conciliation.” Id. at *11. Admittedly, the facts of Bloomberg III, where the Commission declared conciliation a failure just one day after defendant requested information on potential claimants, id. at *3, are similar to those at issue here. This Court likely would have reached a different result.
The Seventh Circuit’s recent decision in EEOC v. Mach Min., LLC, 738 F.3d 171 (7th Cir. 2013), while clearly somewhat at odds with binding Fifth Circuit precedent, nevertheless offers some valuable insight.15 First, Judge Hamilton made clear that, if dismissal for failure to conciliate becomes too readily available, employers will be incentivized “to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court.” Id. at 179. Employers will be tempted to do so, he posited, not “out of a desire to see their adversary across the negotiating table again, but rather with the “hope to win . . . dismissal of the case.” Id. at 179. Judge Hamilton explained that, “[i]f an employer engaged in conciliation knows it can avoid liability down the road, even if it has engaged in unlawful discrimination, by arguing that the EEOC did not negotiate properly — whatever that
15 In short, the court in Mach Min. “disagree[d] with [its] colleagues in other circuits [including this one] and h[e]ld that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.” EEOC v. Mach Min., LLC, 738 F.3d 171, 172-73 (7th Cir. 2013).
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might mean — the employer’s incentive to reach an agreement can be outweighed by the incentive to stockpile exhibits for the coming court battle.” Id. He further noted that “the cost to the employer of pursuing that defense rather than settling before suit is filed is likely to be relatively low” and “[t]he potential gains of escaping liability altogether will, in some cases, more than make up for the risks of not engaging in serious attempts at conciliation.” Id. The Court finds that reasoning sound. It is aware that the Fifth Circuit has said that dismissal should remain an arrow in the district court’s quiver, but believes nonetheless that dismissal is a remedy that should be resorted to only in truly extraordinary cases, or else, as Judge Hamilton noted, the incentives for employers will fall out of balance.
In contrast, the Court does not believe that imposing too high a hurdle for dismissal will incentivize the EEOC to “abandon conciliation altogether or misuse it by advancing unrealistic and even extortionate settlement demands.” Id. As the Seventh Circuit explained, it seems unlikely that “EEOC field offices are so eager to win publicity or to curry favor with Washington by filing more lawsuits that they will needlessly rush to court.” Id. at 179-80. Rather, “the agency has its own powerful incentives to conciliate, and the available data show that it does so. The EEOC currently processes and investigates nearly 100,000 charges of discrimination a year, but it ultimately files suit in only a few hundred cases. In fiscal year 2012, the agency attempted conciliation in 4207 cases, was unsuccessful in 2616, yet filed suit on the merits in just 122. That so few unsuccessful efforts at conciliation end up in court shows how constrained the agency is by practical limits of budget and personnel.” Id. at 180 (citing All Statutes: FY 1997 Through FY 2012, http://www. eeoc.gov/eeoc/statistics/enforcement/all.cfm; EEOC Litigation Statistics, FY 1997 Through FY 2012, http://www.eeoc. gov/eeoc/statistics/enforcement/litigation.cfm).16
16 There was a slight uptick in EEOC litigation in 2013. The EEOC attempted conciliation in 3,515 cases, was unsuccessful in 2,078, and filed suits on the merits in 131. See All Statutes: FY 1997 Through FY 2013,
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Judge Hamilton added that “[t]he agency’s practices and priorities are also checked . . . by the two other branches of government.” Id.
In short, the Court believes that it ought to keep the bar for dismissal high, perhaps above where it has been set by CRST and Bloomberg. By alerting “the next employer the EEOC investigates” that it will not “benefit” from “using the conciliation process as a strategic defense rather than a chance to settle,” id. at 184, an exacting standard may help to prevent employers from abusing the conciliation process. At the same time, keeping the bar high does not carry with it the attendant risk that the Commission will routinely abdicate its duty.
This Court also agrees with the Seventh Circuit that “the significant social costs of allowing employment discrimination to go unaddressed in these situations are likely to outweigh any marginal gain in deterrence.” Id. at 184. In referring to social costs, Judge Hamilton meant that dismissal inevitably means that “dozens of potentially meritorious . . . claims may now never see the inside of a courtroom.” CRST I, 2009 WL 2524402, at *19; Bloomberg III, 2013 WL 4799150, at *11 (same). Quite simply, the Court cannot agree that to allow cases like CRST, Bloomberg, or even this one to go forward “would work a greater evil insofar as it would permit the EEOC to perfect an end-run around Title VII’s ‘integrated, multistep enforcement procedure.’” CRST I, 2009 WL 2524402, at *19 (quoting Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 359 (1977)). To the contrary, “[a] paramount consideration” for this Court “is that individual claimants should not be prejudiced as the result of a failing on the part of the EEOC.” Evans Fruit, 872 F. Supp. 2d at 1116. Only where the Commission acts in blatant disregard of its duties, and where the showing of bad faith is manifest, is the Court inclined to
http://www. eeoc.gov/eeoc/statistics/enforcement/all.cfm; EEOC Litigation Statistics, FY 1997 Through FY 2013, http://www.eeoc. gov/eeoc/statistics/enforcement/ litigation.cfm (both sites last visited March 2, 2014). Thus, the agency litigated 6.3 percent of cases in which conciliation failed, up from 4.7 percent in 2012. That figure was 8.7 percent in 2011, however, so the Court is not prepared to say that 2013 saw some marked shift in the EEOC’s willingness to litigate.
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agree that the Government not “turn[ing] square corners” works greater harm than does the denial of a day in court for those who are subjected to employment discrimination. CRST I, 2009 WL 2524402, at *19
Finally, the Mach Mining court astutely pointed out that “the Supreme Court has made clear that, as a general rule, the remedy for a deficiency in a process is more process, not letting one party off the hook entirely.” Id. at 184 (citing, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004); Vitek v. Jones, 445 U.S. 480, 495-97 (1980); Fuentes v. Shevin, 407 U.S. 67, 96-97 (1972)). This Court believes that, by reserving dismissal for only the truly egregious case, it can remain faithful to binding Fifth Circuit law and also adhere to the spirit of these Supreme Court precedents.
* * * “Where the EEOC has at least made an attempt to conciliate the employment violations,” Swissport Fueling, 916 F. Supp. 2d at 1044 (citing EEOC v. Crye-Leike, Inc., 800 F. Supp. 2d 1009, 1019 (E.D. Ark. 2011)), but “conciliation was ended prematurely,” Bloomberg II, 751 F. Supp. 2d at 643, a stay is the appropriate remedy. It is true that we are no longer “early in the litigation process,” id., and the Court has no false hopes about the likelihood of a settlement being reached during the next thirty days, given that the parties have had numerous opportunities to reach an agreement over the last several years, (see Doc. No. 136 at 41 (asserting that Bass Pro “has twice rejected the EEOC’s offer of a stay of the litigation to discuss[] settlement”)). But, it has some hope that, with the threat of dismissal for failure to conciliate no longer looming, there may be a renewed willingness to negotiate. And though the stay is granted as a result of the premature end to conciliation of § 706 failure-to-hire claims, the Court certainly does not seek to limit the scope of what the parties discuss during the stay.
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3. § 706 Failure-to-Hire Claimants Discovered After Determination Less controversial is the proposition that “the EEOC can bring an enforcement action only with regard to unlawful conduct that was discovered and disclosed in the pre-litigation process.” Original Honeybaked Ham, 918 F. Supp. 2d at 1179; see also Swissport Fueling, 916 F. Supp. 2d at 1036 (“It may only bring suit ‘to remedy allegations of discrimination it investigates, finds reasonable cause to believe are true, and attempts in good-faith to conciliate.’” (quoting EEOC v. Carolls Corp., No. 5:98–CV–1772 FJS/GHL, 2011 WL 817516 at *3 (N.D.N.Y. Mar. 2, 2011)); EEOC v. Am. Samoa Gov’t, No. CIV. 11-00525 JMS, 2012 WL 4758115, at *9 (D. Haw. Oct. 5, 2012) (“The EEOC may not attempt to expand its claims through discovery — its investigation was limited to age discrimination claims within the DHR, and it may not use this lawsuit ‘as a fishing expedition to uncover more violations’”); CRST I, 2009 WL 2524402, at *16 (“[A]t the time the EEOC issued the Letter of Determination on July 12, 2007, 27 of the remaining 67 allegedly aggrieved persons had not yet been sexually harassed.”). “To conclude to the contrary would defeat the purpose of the pre-litigation notice and conciliation requirements” and sanction the use of “pre-trial discovery” as “a substitute for pre-litigation investigation, notice, and conciliation.” Original Honeybaked Ham, 918 F. Supp. 2d at 1179. And it would do violence to the Supreme Court’s, and Congress’s, insistence that Title VII’s “overall enforcement structure” should be “a sequential series of steps beginning with the filing of a charge with the EEOC.” Occidental Life, 432 U.S. at 372. Thus, the Court feels compelled to grant Defendant’s motion with respect to individuals who applied to work at Bass Pro after April 26, 2010, when the Letter of Determination was issued (see Doc. No. 119-1 at 21 & n.78) because the Commission could not possibly have learned about these individuals during its investigation and could not possibly have conciliated
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their claims.17 This decision may seem a bit formalistic; practically speaking, these individuals whose claims are now dismissed are barely distinguishable from others whose names the Commission did not share, or have to share, with Bass Pro. But, in fact, dismissal of these individuals is consistent with the Court’s broader holding: the Commission should have shared some information that would have helped Bass Pro to identify § 706 classmembers, and there is no piece of information it could have shared that would have alerted Defendant to the existence of classmembers who had not even yet applied for employment.
4. § 706 Retaliation Claims Though the parties spend only small sections of their briefs addressing § 706 retaliation claims, the Court finds this to be a rather tricky issue. On one hand, the Court believes that the above logic also compels dismissal of the § 706 retaliation claims that are still pending and on which the EEOC has not even issued a determination, let alone attempted to conciliate. (Doc. No. 119-1 at 22.) On the other hand, this case began with a Commissioner’s Charge, the amended version of which mentions retaliation (Doc. No. 119-5 at 2), as did the Letter of Determination (Doc. No. 119-11 at 4). Thus, if the members of the individuals on whose behalf the EEOC has brought § 706 retaliation claims did not need to file a Charge in the first place, what difference should it make that the Charges they did file are still pending? Because the Court believes the parties could be of additional assistance in deciding this issue, it will hold a brief hearing to address it following the conclusion of the thirty-day stay.
17 One possible gray area is claimants who applied during conciliation (between May and November 2010). It is possible, at least in theory, that the EEOC investigated those claims and was aware of them by the time it ended conciliation. If it believes this to have been the case with respect to any of the twenty claimants herein dismissed, it should file a motion explaining (and documenting) as much.
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IV. MOTION TO AMEND The Commission has moved to substitute Tracker Marine Retail, LLC for Tracker
Marine, LLC. (Doc. No. 135.) The EEOC explains that “[n]aming Tracker Marine, LLC was justified because Defendants listed that entity, and not Tracker Marine Retail, LLC, in its Certificate of Interested Parties.” (Id. at 2.) The EEOC further explains that “[t]here is no doubt that the company that employs the individuals who work in the ‘Tracker Marine’ boating centers and showrooms in Bass Pro’s retail stores was a Respondent in the EEOC Amended Commissioner’s Charge, was involved in the EEOC’s administrative investigation and conciliation, and was on notice of this lawsuit. The only issue here is that the EEOC incorrectly named the company as Tracker Marine, LLC rather than Tracker Marine Retail, LLC.” (Id. at 34.)
Bass Pro indicated at this Court’s hearing that it does not object to adding the correct Tracker Marine Retail, LLC, but that it would rather Tracker Marine, LLC, be dismissed with prejudice. The Court sees no reason to do so, given that, as the Commission has argued, it could in theory be revealed during discovery that the two Tracker Marines never should have been swapped in the first place. To the extent that Bass Pro is worried that dismissal without prejudice will allow the Commission freely to add defendants and claims down the road, it can rest assured that the Court would look skeptically upon any such motion.
The Court thus GRANTS the Commission’s Motion to Amend and dismiss Tracker Marine, LLC WITHOUT PREJUDICE. Following the conclusion of the thirty-day stay, the Commission should file a Fourth Amended Complaint.
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V. CONCLUSION The Court has reviewed an extensive amount of correspondence exchanged by these
parties, dating back to the investigation and early days of conciliation. It seems from the tone of that correspondence that conciliation in this case was perhaps always a long-shot. The Court cannot say why this was or where things went wrong; perhaps the EEOC was never as open with Defendants as it should have been. Maybe Defendants were always intent on trying to win this case through a conciliation-related dismissal. But in any event, there is no mistaking the marked acrimony between these parties that predated the start of conciliation. And once conciliation began, it now seems clear that both sides could have engaged more skillfully and respectfully.
But Defendants seek dismissal, and so the question is whether the EEOC acted “grossly arbitrary and unreasonabl[y].” The Court does not believe that it did. With respect to the § 707 claim, the Court believes that, by November 2010, the Commission was justified in declaring conciliation of that claim a failure. And with respect to the § 706 failure-to-hire claim, the Court believes the Commission should have continued to engage Defendant, but that its decision to do the opposite was not made in bad faith.
To review, the Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The § 707 claim can move forward. The Court orders a 30-day stay for further conciliation on the § 706 failure-to-hire claim, but dismisses those individuals who had not yet applied to work for Bass Pro when the Commission issued its Letter of Determination. Following the stay, The Court will hold a brief hearing to determine the proper outcome with regard to the § 706 retaliation claims. And the Motion to Amend is granted, with Tracker Marine, LLC dismissed without prejudice.
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IT IS SO ORDERED. SIGNED at Houston, Texas on this the 4th day of March, 2014.
KEITH P. ELLISON UNITED STATES DISTRICT COURT JUDGE
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 </s> Case 4:11-cv-03425 Document 171 Filed in TXSD on 06/13/14 Page 1 of 269

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

BASS PRO OUTDOOR WORLD, LLC

§

and TRACKER MARINE RETAIL, LLC,

§

§

Defendants.

§

CIVIL ACTION NO. 11-CV-3425 HON. KEITH P. ELLISON
JURY TRIAL DEMANDED

FOURTH AMENDED COMPLAINT OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

TO THE HONORABLE UNITED STATES DISTRICT COURT: By Order dated March 4, 2014 (ECF No. 151), the Court granted EEOC’s motion for
leave to file a Fourth Amended Complaint to substitute Tracker Marine Retail, LLC as a defendant for Tracker Marine, LLC. In filing this Fourth Amended Complaint, EEOC also makes changes related to the Court’s earlier dismissal of Bass Pro, Inc. from this action (ECF No. 95). In filing this Fourth Amended Complaint, EEOC reserves all rights and does hereby not intend to waive any claims.
NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 as amended, and Title I of the Civil Rights Act of 1991 (“Title VII”) to correct unlawful employment practices on the basis of race, national origin, and retaliation, and to provide appropriate relief to Black and Hispanic applicants and to employees who were adversely affected by such practices. As alleged

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with greater particularity below, Defendants have engaged in, and continue to engage in, unlawful discrimination by (1) maintaining a standard operating procedure of denying employment to Black and Hispanic applicants for positions in their retail stores nationwide, and otherwise discriminating in hiring against Blacks on the basis of race, and against Hispanics on the basis of national origin; and (2) retaliating against employees who opposed actions by Defendants that those employees reasonably perceived to constitute unlawful employment discrimination. Additionally, Defendants unlawfully destroyed, or otherwise failed to preserve, records relevant to whether unlawful employment practices have been or are being committed, in violation of the applicable record-keeping regulations issued pursuant to Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c).
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) and 707(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and 2000e-6, and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The unlawful employment practices alleged in this Complaint were committed in numerous locations across the United States, including within the jurisdiction of the United States District Court for the Southern District of Texas, Houston Division. Venue is appropriate in this Court.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission”), is the agency of the United States of America charged with the administration, interpretation and
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enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(f)(1) and (3) and 707 of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3) and 2000e-6.
4. At all relevant times, Defendant Bass Pro Outdoor World, LLC (“BPOW”), a Missouri limited liability company, has continuously been doing business in the State of Texas and the City of Katy, and has continuously had at least 15 employees. BPOW may be served with process through its registered agent, CT Corporation System, 350 N. St. Paul St., Ste. 2900, Dallas, Texas 75201.
5. At all relevant times, Defendant Tracker Marine Retail, LLC (“Tracker”), a Delaware limited liability company, has continuously been doing business in the State of Texas and the City of Katy, and has continuously had at least 15 employees. Tracker may be served with process through its registered agent, The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. BPOW and Tracker shall sometimes herein collectively be referred to as “Defendants” or “Bass Pro.”
6. At all relevant times, Defendants have continuously been employers engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
7. BPOW is a chain of almost 60 sporting equipment retail outlets or megastores with a special emphasis on fishing, hunting and camping. The BPOW stores also sell a variety of “Bass Pro” branded items. Tracker is one of the largest boat retailers in the country and operates showrooms located within BPOW megastores. BPOW and Tracker both are subsidiaries of parent Bass Pro, Inc. (“BPI”).
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8. BPOW and Tracker have interrelated operations, centralized control of labor

relations, common management and common ownership and financial control as demonstrated

by the illustrative facts below.

a. BPOW and Tracker are privately held and commonly owned by founder

Johnny Morris.

b. BPOW and Tracker share a common corporate headquarters and business

address: 2500 E. Kearney St., Springfield, Missouri. Both entities operate out of that

headquarters. The term “corporate” as used herein refers to Defendants’ operations

above the store level, such as headquarters or regional operations.

c.

Defendants’ Owner and Founder Morris exercises authority over

corporate operations and decisions of Defendants. Morris is involved in day-to-day

operations and decision-making for BPOW stores and the Tracker showrooms within.

When contacting the corporate headquarters for Defendants with questions about

marketing strategies and other issues, some BPOW General Managers found that

corporate staff could or would not provide a response without Morris’s guidance.

Further, managers at the stores sometimes contacted Morris directly to seek his input

concerning complaints and inquiries. The terms “General Manager” or “Store General

Manager” are synonymous as used herein and refer to the top-ranking official at a Bass

Pro store.

d. James Hagale has served as the President of BPOW and Tracker. As a

result, Hagale has responsibility for oversight of BPOW and Tracker.

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e. Top managers of Tracker in the BPOW stores, as well as management for the restaurants in the stores, report or reported during the relevant time period to the top BPOW manager in each store.
f. Store Human Resources Managers for BPOW perform the personnel/human resources functions for the in-store Tracker showrooms, and the human resources function of both BPOW and Tracker is overseen by BPI. The human resources/labor relations functions of Defendants have been concentrated at the Defendants’ shared headquarters.
g. A standard employment application is utilized for hiring at BPOW stores, including for the BPOW departments and the Tracker department. Further, the personnel forms used for hiring, wage changes, job reassignments, terminations and other employment actions for Defendants are almost always generated on “Bass Pro” letterhead or bear the BPI name.
h. Employment training for the BPOW stores and Store Human Resources Managers, in particular, is not limited to local or in-store training, but involves managers from other locations assigned by management at the shared headquarters. For example, Amber Quarles served as the Store Human Resources Manager at the Hampton, Virginia BPOW store in the mid-2000’s. Quarles was trained, in part, by Store Human Resources Managers from the Nashville, Tennessee and Auburn, New York stores.
i. BPOW and Tracker share an internet website: www.basspro.com. It is the common retail/public relations website used by and identified BPOW and Tracker. The website lists, among many other things, all “store locations” as well as job postings and recruitment practices for both BPOW and Tracker. It provides an email address for the
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submission of applications which is common to all employment positions, including both hourly and “salaried/management opportunities” at BPOW and Tracker. Job opportunities are identified not by company but by BPOW “location.” A notice posted on the website encourages job applicants to apply for hourly job openings available at BPOW “locations” in person at Defendants’ shared headquarters on an on-going, daily basis. Further, the website informs individuals interested in salaried positions “relevant to [their] experience” in the various “departments” located at “our General Office Headquarters in Springfield, MO” to forward their resumes for consideration for future salaried opportunities to: prostaffr@basspro.com.
j. BPOW and Tracker share common company practices and policies, including those related to customer service and the handling of on-line purchases and returns, as set forth on the www.basspro.com website.
k. In its Amended Certificate of Interested Parties filed with the Court (ECF No. 75), BPOW listed itself and Tracker as parties with a financial interest in the outcome of this litigation.
Defendants Constitute an Integrated Enterprise, or Single Employer, and Are Each Jointly and Severally Liable for the Violations of Title VII Alleged Herein 9. Defendants are jointly and severally liable for the discriminatory acts and claims asserted herein because, as set forth more fully in paragraphs 4 to 8 above, the facts demonstrate that BPOW and Tracker constitute an integrated enterprise. In summary, at all relevant times, BPOW and Tracker have operated out of the same corporate headquarters with shared personnel, policies and management, and have had interrelated operations, centralized control of labor
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relations, common management and common ownership and financial control. By their own admission, BPOW and Tracker are parties with a financial interest in the outcome of this case.
10. All of the acts and failures to act alleged herein were duly performed by and attributable to each Defendant, each acting as a successor, agent, alter ego, employee, indirect employer, joint employer, integrated enterprise, and/or under the direction and control of the other Defendants. Said acts and failures to act were within the scope of such agency and/or employment, and each Defendant participated in, approved and/or ratified the unlawful acts and omissions by Defendants complained of herein. Whenever and wherever reference is made in this Complaint to any act by a Defendant, such allegations and reference shall also be deemed to mean the acts and failures to act of all the Defendants acting individually, jointly, and/or severally.
STATEMENT OF CLAIMS 11. More than thirty days prior to the institution of this lawsuit, a charge was filed with the Commission by Stuart J. Ishimaru, a member thereof, alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled.
COUNT ONE: DEFENDANTS HAVE DISCRIMINATED AGAINST BLACKS AND HISPANICS BY DENYING THEM EMPLOYMENT AT DEFENDANTS’ STORES NATIONWIDE 12. As described below, since at least November 2005, Defendants have engaged in unlawful employment practices at their retail stores and facilities nationwide, in violation of Sections 703(a) and 707(a) of Title VII, 42 U.S.C. §§ 2000e-2(a) and 2000e-6(a).
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Scope and Nature of the Discrimination 13. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Blacks as a class on a company-wide basis.1 14. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics as a class on a company-wide basis. 15. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Blacks as a class at some or all of their retail stores. 16. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics as a class at some or all of their retail stores. 17. As alleged with more particularity elsewhere herein, Defendants’ hiring discrimination against Blacks is Defendants’ standard operating procedure on a company-wide basis. 18. As alleged with more particularity elsewhere herein, Defendants’ hiring discrimination against Hispanics is Defendants’ standard operating procedure on a companywide basis. 19. As alleged with more particularity elsewhere herein, Defendants’ hiring discrimination against Blacks is Defendants’ standard operating procedure at some or all of their retail stores. 20. As alleged with more particularity elsewhere herein, Defendants’ hiring discrimination against Hispanics is Defendants’ standard operating procedure at some or all of their retail stores.

1

Consistent with Federal Rule of Civil Procedure 8(d), EEOC asserts that all of its allegations subsume any

related “lesser included offenses.” For example, EEOC’s allegations that Defendants discriminate on a company-

wide basis subsumes its allegations concerning discrimination at individual stores. If the Court or a jury dismissed

EEOC’s allegations of company-wide discrimination, the “lesser included offense” of discrimination at individual

stores may still be considered by the fact-finder.

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21. As alleged with more particularity elsewhere herein, irrespective of whether hiring discrimination is a company-wide practice, Defendants’ hiring discrimination against Blacks as a class, at any one or more of their retail stores, constitutes systemic discrimination in violation of Title VII.
22. As alleged with more particularity elsewhere herein, irrespective of whether hiring discrimination is a company-wide practice, Defendants’ hiring discrimination against Hispanics as a class, at any one or more of their retail stores, constitutes systemic discrimination in violation of Title VII.
23. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Blacks in regard to some or all non-managerial positions.
24. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Blacks in regard to some or all managerial positions.
25. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics in regard to some or all non-managerial positions.
26. As alleged with more particularity elsewhere herein, Defendants have discriminated in hiring against Hispanics in regard to some or all managerial positions.
27. The part-time and full-time retail store positions for which Defendants denied employment to Black and Hispanic applicants include, but are not limited to, cash clerk, cashier, customer relations associate, customer service representative, customer service representative credit, greeter, cashier/greeter, loss prevention, receiving clerk, sales associate, stocking associate, “PACE” employees, Santa’s Wonderland, “lead,” “team lead,” and all supervisory and managerial positions.
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28. As alleged with more particularity elsewhere herein, Defendants’ hiring discrimination against Blacks and Hispanics will be supported by direct evidence, evidence of centralized, systemic practices and/or policies, numeric and/or statistical evidence, and/or anecdotal evidence.
29. Defendants’ hiring discrimination against Blacks as a class, as alleged with more particularity herein, constitutes an unlawful “pattern or practice of resistance to the full enjoyment of any of the rights secured by” Title VII, in violation of Section 707(a).
30. Defendants’ hiring discrimination against Hispanics as a class, as alleged with more particularity herein, constitutes an unlawful “pattern or practice of resistance to the full enjoyment of any of the rights secured by” Title VII, in violation of Section 707(a).
31. Defendants’ hiring discrimination against Blacks as a class, as alleged with more particularity herein, constitutes an unlawful employment practice in violation of Section 703 of Title VII.
32. Defendants’ hiring discrimination against Hispanics as a class, as alleged with more particularity herein, constitutes an unlawful employment practice in violation of Section 703 of Title VII.
33. Defendants’ hiring discrimination, as alleged with more particularity elsewhere herein, against any one of the Black Identified Aggrieved Individuals named herein, or against any person in like or related circumstances, constitutes an unlawful employment practice in violation of Section 703 of Title VII.
34. Defendants’ hiring discrimination, as alleged with more particularity elsewhere herein, against any one of the Hispanic Identified Aggrieved Individuals named herein, or
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against any person in like or related circumstances, constitutes an unlawful employment practice in violation of Section 703 of Title VII.
35. For each and every violation of Section 703 alleged herein, and as to each victim of such unlawful conduct, EEOC reserves the right to seek all remedies deemed appropriate by the Court or a jury, including but not limited to damages pursuant to 42 U.S.C. § 1981a(a)(1), back pay, instatement, and/or other available relief.
36. For each and every violation of Section 707(a) alleged herein, and as to each victim of such unlawful conduct, EEOC reserves the right to seek all remedies deemed appropriate by the Court or a jury, including, but not limited to, back pay damages, instatement, and/or other available relief.
Defendants Have Maintained a Standard Operating Procedure of Denying Employment to Blacks Based on Race and Hispanics Based on National Origin at Stores Nationwide 37. Plaintiff re-alleges and incorporates by reference paragraphs 1 to 36 above as if set forth fully herein. 38. As described in paragraphs 39 to 123 below, Defendants have maintained a standard operating procedure of denying employment to Black applicants based on their race and Hispanic applicants based on their national origin at stores nationwide. 39. Defendants’ standard operating procedure of discriminating against minorities in hiring emanates from Defendants’ top management, and, in particular, from Defendants’ owner and founder, John “Johnny” Morris, and has been communicated to, repeated by, and carried out by Store General Managers. 40. In a meeting of Store General Managers in 2004 or 2005, Morris made clear he did not want Defendants to hire minority applicants, such as Blacks and Hispanics. Answering a
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question concerning racial quotas at that meeting, Morris said, “this company will never have a quota system because that’s not the kind of people I want working in my stores.” He made similar comments while attending one or more store openings.
41. Morris’s statement regarding not wanting minorities at his stores constituted a directive to Store General Managers nationwide to favor Whites in the hiring process and to discriminate against minorities.
42. Defendants’ hiring preference for Whites was known and followed by store managers throughout the company and was sometimes referred to simply as “the Profile.” Only White applicants fit the Profile.
43. The centralized and pervasive nature of Defendants’ discriminatory hiring practices is shown by the evidence set forth in this section and elsewhere in this Complaint, including in the numeric allegations set forth below in paragraphs 123 to 174 and paragraphs 360 to 407.
Defendants’ Top Corporate Managers Encourage and Assist Store Managers In Implementing Discriminatory Hiring Practices in Their Retail Stores 44. Plaintiff re-alleges and incorporates by reference paragraphs 1 to 43 above as if set forth fully herein. 45. Defendants’ corporate Human Resources Managers and store managers communicated the corporate racial hiring directive — the Profile — to other managers. 46. For example, at the Bossier City, Louisiana, store, in 2005, when a newly hired Store Human Resources Manager was asked to justify his interviewing a Black female job candidate, he informed the store Assistant General Manager that he was going to offer a job to the Black applicant. In response, the Assistant General Manager told the Store Human
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Resources Manager that he could not hire her as she did not fit the Profile. When this new Store Human Resources Manager asked what the Profile was, the Assistant General Manager stated, “We don’t hire niggers.” The Assistant General Manager was hired before the Bossier City store opened in late 2003, and remained there enforcing the racial preference for Whites for about five years.
47. Defendants’ illegal use of the Profile to discriminate against minorities continues to the present.
48. At the August 2011 job fair in Harlingen, Texas, Human Resources Managers from Bass Pro stores in three different states acknowledged Morris’s directive that applicants be hired based on their “physical characteristics,” a coded reference to discrimination against minorities on the basis of race, national origin, and other impermissible factors.
49. To assure that store-level hiring is consistent with their discriminatory Profile, Defendants’ management has used a number of practices to prioritize the hiring of Whites and undermine minorities’ hiring prospects.
50. Defendants’ human resources functions are highly centralized. Just two top corporate Human Resources Managers have exceedingly broad authority over all stores. Michael Rowland has been the top corporate Human Resources Manager since 1983 and is the Vice President of Human Resources. He was hired when Defendants had just one retail store. He had no human resources experience in the retail context at hire. Rowland is second in command at BPOW.
51. Rowland has stated that he hired only one Black employee in the corporate Human Resources department, a clerk, during his first 26 years of employment with Defendants.
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52. In 1999, Michael Rowland hired Brent Day as Director of Human Resources for retail stores.
53. Shortly after hire, Day assumed a broad range of authority over the hiring of store managers. The few Regional Human Resources Managers are recruited by Rowland and Day and report directly to Day.
54. At present, there are just two Regional Human Resources Managers for all of Defendants’ stores, one of whom was promoted from a Store Human Resources Manager position.
55. Corporate Human Resources trains new managers and selects experienced White field managers to train and provide support for them.
56. Defendants heavily rely on loyal White store managers to staff job fairs at new stores, sometimes located far from the stores where those managers work. Brent Day and his few Regional Human Resources Managers play a large role in selecting the job fair recruiting staff. Black and Hispanic employees are rarely utilized to staff job fairs. Minority job applicants have stated that they have rarely observed or been interviewed by minority managers at the job fairs.
57. To discourage Black applicants from applying, Brent Day, who selects job fair sites nationwide, or delegates that to subordinates and certain store managers, instructed or otherwise encouraged Store Human Resources Managers to hold job fairs in locations designed to draw White applicants and deter minority applicants.
58. Defendants have excluded minority applicants by informing employment agencies that they are not interested in recruiting affirmative action candidates.
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59. Defendants require some applicants to complete a pre-employment survey, called the Orion test. When a field manager commented that Black applicants had done poorly on the Orion test, a high-ranking store manager expressed enthusiasm at this opportunity to eliminate Black candidates.
60. Scores of minority applicants who were not hired by Defendants (“unsuccessful minority applicants”) insist that, although Defendants’ staff assured them they would be contacted about the status of their applications, Defendants never contacted them (see, generally, paragraphs 175 to 359 and paragraphs 408 to 427. Many of these minority applicants state that, not having heard from Defendants, they contacted the Defendants to inquire about the status of their applications, but they were advised that the position or positions had been filled.
61. Day plays a major role in sourcing, interviewing, and hiring Store Human Resources Managers on a nationwide basis and in approving the promotion of employees whom he trusts or expects to follow the discriminatory Profile to store management positions, including that of Store Human Resources Manager.
62. Day has admitted that outdoor experience is not essential to any job at Defendants’ stores.
63. Outdoor experience, such as in camping, fishing, hunting and shooting, is — for almost all jobs at Bass Pro — not a job requirement.
64. Little formal education is required for almost all the jobs at Defendants’ retail stores.
65. An applicant’s having retail experience is a positive factor for hiring purposes, according to Brent Day.
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66. Defendants’ ineffective system of responding to discrimination complaints shows malice, reckless disregard, or indifference to compliance with Title VII.
67. As discussed in more detail in paragraphs 429 to 504 below, Store Human Resources Managers and other store managers who have challenged Defendants’ orders not to hire qualified Black or Hispanic applicants have been terminated, forced to quit, or otherwise subjected to retaliation. Such managers have directly informed Brent Day of evidence regarding discriminatory hiring practices, but Day has not effectively or meaningfully investigated their contentions.
68. Rowland and Day have acknowledged that neither they, nor Defendants, have ever considered or initiated any program to recruit qualified minority job applicants for any jobs at Defendants’ stores.
69. Defendants have not tasked anyone in Human Resources to engage in efforts to recruit qualified minority job candidates.
70. Defendants have not utilized diversity job fairs to recruit qualified minority candidates.
71. Defendants are required by federal law to submit annual reports, called EEO-1’s, describing the companies’ work force demographics.
72. For many years, as Vice President of Human Resources, Michael Rowland has certified, under penalty of federal law, the accuracy of Defendants’ annual EEO-1 reports that set forth, by race and national origin, the number of employees on a store-by-store basis, for corporate headquarters and in the aggregate.
73. Up until the time that the Commissioner Charge which gave rise to this lawsuit was issued in 2007, Michael Rowland had never reviewed any of Defendants’ EEO-1’s to
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determine if Defendants’ demographics suggested discrimination against, or underutilization of minorities overall or in any specific job category.
74. As discussed with more particularity in paragraphs 124 to 174 and paragraphs 360 to 407, Defendants’ EEO-1’s have consistently shown clear underutilization, and strikingly low representation, of minorities in Defendants’ workforce. Defendants’ lack of concern or action, despite the obvious underutilization of minorities revealed in their EEO-1’s, is indicative of Defendants’ standard operating procedure of hiring discrimination, their lack of good faith efforts to comply with Title VII, and their malice or reckless indifference for rights protected by Title VII.
75. Up until the time that the Commissioner Charge was issued in 2007, Michael Rowland had never instructed anyone in the Human Resources department or any other department to determine if Defendants’ EEO-1 reports suggested that Defendants were employing too few minorities overall or in any specific job category.
Across The Country, Defendants’ Hiring Officials Give Hiring Preference to Whites The following are examples of Defendants’ discriminatory hiring practices at specific stores. These examples are illustrative and are not intended to be exhaustive. 76. Most Bass Pro retail stores are open to the public at least eighty hours a week. Each retail store is managed by a Store General Manager, who supervises the other store managers as well as the managers for Tracker, the boat and marine department, and the managers of restaurants owned by Defendants that are nearby or within the store. With rare exception, all salaried employees who supervise store departments are characterized as “managers,” not “supervisors.” Defendants’ stores typically employ over a hundred employees, and sometimes as many as two hundred or more.
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77. Defendants’ standard operating procedure of discriminating against qualified Black and Hispanic applicants in hiring is carried out at the store level by managers and hiring officials who encourage staff to mistreat and otherwise discourage minority job applicants, mistreat minority customers, and, at times, even the few minorities employed by Defendants.
Louisiana 78. The Bossier City store aggressively enforced the centralized directive to hire by the “Profile,” per the stated guidance of owner Morris, by discriminating against Black and Hispanic applicants and favoring Whites. 79. Ed Billingsley, the Store General Manager in Bossier City, Louisiana, from about 2004 to 2008, instructed a customer service manager not to hire any more Black employees. 80. Billingsley admitted that he was following Morris’s hiring directive of favoring White applicants over minority applicants, in defending his discriminatory practices. 81. In a meeting with General Manager Billingsley and Assistant General Manager Richard Wisher, the Bossier City store’s customer service manager recommended hiring a female applicant in the customer service department. Wisher objected because the applicant was Black, arguing that the store’s “Bubba Clientele” — a stereotyped term reflecting Wisher’s assumption that White customers would be prejudiced against Black employees — would have a difficult time accepting a “Black woman” refusing them credit for returned items. Billingsley did not contradict or countermand Wisher’s directive at the meeting. 82. A former Bossier City Store Human Resources Manager attested that the store was run like a “Good Old Boy” system favoring White males, that personnel documents were routinely doctored to help those favored by management, and that White males were given better
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treatment than their non-White counterparts regarding pay, severance, leave, workload, and transfers.
Iowa 83. A restaurant manager in Bass Pro’s Concord, Iowa, store stated that the hiring managers issued a directive that all hiring had to be done by the Profile. After the manager asked what the Profile meant, the regional manager explained by pointing out that a Black employee did not fit the Profile, whereas a White employee did. 84. The restaurant manager complained to Brent Day about the discrimination resulting from use of the Profile, as Day had been involved in hiring the manager. The restaurant manager who complained was fired shortly after expressing his opposition to the Profile to Day.
Texas 85. In 2005, Dianne Raydon, the Store General Manager of Defendants’ store in Katy, Texas, told the Store Human Resources Manager that “it was getting a little dark in here. You need to hire some White people.” 86. Dianne Raydon called Black employees “lazy.” 87. Raydon referred to Hispanic customers, employees (and Hispanics in general) as “wetback,” “vato” (Spanish slang for “dude”), “spic,” “Pedro,” and “Mexican,” and called Blacks “pimps” and “Monkeys.” 88. Raydon directly addressed minorities with racial slurs. Raydon did not want Blacks hired, she said, because “if we get too many of those, they’ll steal us blind.” 89. Between August 2008 and July 2009, a Lead, Danny Wentz, imposed hiring barriers on Black applicants, but not White applicants, by requiring only Black job seekers to take and pass specialized exams that were meant to be training exams for current employees.
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90. The front end, hunting, and fishing and marine managers Danny Wentz, Mark Davison, and Wes Blanton disparaged minority applicants, by admonishing that “if they [minorities] want to dress like that, or act like that, they need to go to Wal-mart or Academy.” Wentz also made comments such as “this ain’t the street or the ghetto.”
Mississippi 91. To discourage Blacks from applying for jobs, Brent Day permitted Pat Renegar, the Store General Manager, to locate a job fair site in Richland, Mississippi, a predominantly White area which is farther from integrated residential neighborhoods than Jackson’s more accessible sites. Defendants’ intent was to reduce the number of minority applicants. 92. A former Pearl, Mississippi, Store Human Resources Manager attested that store and corporate management were “on a mission to just hire Whites.” 93. The Store Human Resources Manager asked why the Pearl job fair was being held in Richland, a remote location. Brent Day, and Renegar, Store General Manager, who organized the event, told the Store Human Resources Manager that they needed to deter “bad applicants” from applying. 94. When the Store Human Resources Manager pressed Day about having so few Black employees when so many Blacks lived near the Pearl store itself, Day responded, “We get by because they don’t apply [at the fair].” 95. The Store Human Resources Manager observed that, although store managers would say that outdoor experience was a job requirement, many Black applicants were rejected despite having more outdoor experience than Whites who were hired. The Store Human Resources Manager attested that “We just kick [] out the Black applicants at a much higher rate than we do the White applicants who have less outdoor experience.”
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96. At the Pearl job fair and other job fairs, Black applicants had to be very persistent to obtain an interview, let alone a job offer.
97. As is the case at many other Bass Pro stores, the Pearl store usually did not advertise job vacancies or promotional opportunities either in the media or by posting signs or notices in the stores.
98. Defendants have often filled vacancies quickly with pre-selected White applicants so that the few Black employees learned about possible vacancies only after those jobs had already been filled.
99. Ambitious Black employees were fired arbitrarily and stigmatized with slurs, one being called a “cocky nigger” when he sought a promotion.
100. It was well known among the staff that Pat Renegar, the Pearl Store General Manager, did not want to hire Blacks.
101. Some of the few Black employees were subjected to racial harassment, such as being called, by both managers and co-workers, “ghetto,” “nigger,” “lazy,” and “boy” by White supervisors and White co-workers.
102. White managers at the Pearl store would often complain that the store had too many Black employees, even though there were very few.
North Carolina 103. Michael Chopp, the long tenured Store Human Resources Manager in the Charlotte, North Carolina, store, screened out applicants if their physical appearance did not fit the desirable “demographics,” a code for race.
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104. On several occasions, Chopp ostensibly “lost” the job applications of minorities. As a consequence, the Store Human Resources Manager provided the White Loss Prevention Manager with job applications from Whites only.
105. Tim Bloodworth, Operations Manager, and Chopp instructed the White Loss Prevention Manager to watch “them,” referring to Black shoppers.
106. Bloodworth and Ron Kinney, merchandising manager, often used the term “nigger” and “damned niggers” when referring to Black customers in Defendants’ Concord, North Carolina, store.
107. The lone Black manager’s store identification card was defaced with the word “nigger.” The Black manager told the top store managers about this and he demanded that an investigation, but Defendants took no action. This same Black manager said White employees frequently used racial epithets such as “nigger” in the lunch room, and directed this epithet toward then-presidential candidate Barack Obama in particular.
Virginia 108. Dominique Terry applied at the Hampton, Virginia, store in 2009 (and he also applied at the Gurnee, Illinois store in 2010). While waiting in the Hampton store for the opportunity to interview, a White Bass Pro employee approached him and advised him that “niggers aren’t allowed to work here.” Bass Pro did not hire Terry.
Oklahoma 109. In 2005, Brian Goforth, the General Manager in Bass Pro’s Broken Arrow, Oklahoma, store, criticized a restaurant Assistant General Manager, Gerard Lachance. His remarks included asking sarcastically, “You got enough niggers hired yet?”
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110. Regarding a Black female employee whose skin condition lightened her complexion, Goforth chastised the restaurant manager by saying, “So, what, we are hiring White niggers, too?”
111. Goforth also criticized the Assistant General Manager for hiring Hispanics, by accusing him of hiring the “Rio Grande Express,” a derogatory comment concerning Hispanics.
112. A few days after Lachance informed management about the discriminatory hiring practices and comments, he was fired, based on the false contention that he was trying to undermine Goforth’s authority in order to get his job. When Lachance appealed his termination to Brent Day, Day did nothing to investigate the retaliation claim, and Lachance’s termination was sustained.
Indiana 113. Managers in Defendants’ Clarksville, Indiana, store did not disguise their hostility toward Black and Hispanic applicants and customers. 114. The store General Manager, Mike Benningfield, the Operations Manager, Mike Caudill, and the Store Human Resources Manager, Mary Vaughn, disparaged Hispanics who lived in housing units near the Clarksville store by calling their neighborhood “Little Mexico” and a “whorehouse.” They insisted Mexicans were “dangerous” and whenever something was missing in the store, they would remark that “the Mexicans stole it,” despite no evidence of who was responsible for the loss. 115. Allen Bramer, Lead Loss Prevention agent, stated that “Niggers steal and do not make good employees,” and did what he could to assure that minorities would not be hired. 116. Several times in late 2008, Bramer was seen discarding employment applications just after declaring that the applicant’s name “sounded like a ‘nigger’ name.”
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117. Of Hispanics, Bramer said “they should be shot at the border by the border patrol.”
118. Bramer tried to ban Black and Hispanic shoppers by harassing them. Without any factual basis, he followed them around the store. Applying the Profile to the sales floor, he claimed minorities “didn’t fit the profile of what we want in the store, hunters and fishermen. They look like they are from the projects across the street.”
Alabama 119. Before holding a job fair for their Leeds, Alabama, store around October 2008, Defendants had preselected many employees, including White loss prevention associates who had worked in a Bass Pro store for a contracted private security firm before the Leeds store opened. Though that private security firm employed qualified Black agents who were more experienced than their White counterparts, Defendants chose to recruit only the White agents, and later promoted a White loss prevention agent who was less experienced than the two Black loss prevention staffers. 120. Despite the fact that many minority applicants applied and that the store was in an area with large Black and Hispanic populations, Defendants hired very few Blacks or Hispanics, and appointed younger, less experienced Whites to managerial and lead positions. More experienced minority applicants were either not hired or were hired into positions below their level of experience and competence. 121. In Defendants’ Spanish Fort, Alabama store, in late 2010, a White Lead employee accused a recently hired White subordinate of calling two Black PACE employees “worthless niggers.” “PACE” is a term used by Defendants to refer to employees who are available as needed to work, such as for special sales events, holidays, and vacation periods. Without any
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documentation and without conducting any witness interviews, the Store Human Resources Manager baselessly concluded that there was merely a “personality conflict” between the lead employee and the newly hired worker. The Store Human Resources Manager disregarded the allegation of the use of racial slurs. Thereafter, one of the targets of the slur accused another White co-worker of calling her a “nigger,” and, again, without interviewing any witnesses, the Store Human Resources Manager disregarded the complaint because the accused White worker denied making the slurs.
122. The Human Resources Manager in Defendants’ Spanish Fort store, alarmed that more than a few Blacks had been hired, instructed the other department managers, “You can’t hire all Blacks.”
Georgia 123. Despite being located near a large Black population, and having a sizeable percentage of Black applicants, Defendants’ Savannah, Georgia, store has had only a small number of Black employees. Nearby comparable stores, such as Dillard’s, Home Depot, Target, and Wal-Mart (some of which are in the same mall as Bass Pro), have had a higher percentage of Black workers.
REPORTS PREPARED BY DEFENDANTS CONTAINING THE RACIAL COMPOSITION OF THEIR WORKFORCE SHOW A PLAUSIBLE CLAIM OF HIRING DISCRIMINATION AGAINST BLACKS DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE BLACK EMPLOYEES 124. During EEOC’s administrative investigation, Defendants produced hiring data for 24 of their retail stores. 125. According to the hiring data for 24 of Defendants’ retail stores that Defendants produced to EEOC during EEOC’s administrative investigation, out of 14,374 employees hired
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during the relevant time period, only 995 (6.9%) of the hires were Black. The time periods for the hiring data varied depending on the store. For eight of the stores, the data was from January 2005 through May 2007. For one of the stores, the data was from January 2005 through March 2009. For the other 15 stores, the data was from January 2005 through July 2009. (Unless otherwise stated, general reference to “employees” encompasses total employment and includes managerial and non-managerial employees.)
126. According to Defendants, “For the time period from 2005 to the present [April 2012], Bass Pro has had over 60,000 successful applicants.”
127. The Census Bureau produces a Census 2000 Special EEO file for those Federal agencies responsible for monitoring employment practices and enforcing civil rights laws in the workforce, and for all employers, so they can measure their compliance with the laws. The Census 2000 Special EEO Tabulation serves as the primary external benchmark for conducting comparisons between the racial, ethnic, and sex composition of each employer's workforce to its available labor market.
128. According to the hiring data for 24 of Defendants’ retail stores that Defendants produced to EEOC during EEOC’s administrative investigation, 23 (95.8%) of the 24 stores hired a lower percentage of Black employees compared to the representation rate of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Bossier City, Louisiana, store, where out of 255 employees hired from January 2005 through May 2007, only 26 (10.2%) were Black, compared to a representation rate of 26.7% Black employees in the county.
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b. Defendants’ Broken Arrow, Oklahoma, store, where out of 1,220 employees hired from January 2005 through July 2009, only 25 (2%) were Black, compared to a representation rate of 7.8% Black employees in the county. c. Defendants’ Cincinnati, Ohio, store, where out of 285 employees hired from January 2005 through May 2007, only 11 (3.9%) were Black, compared to a representation rate of 13.3% Black employees in the county. d. Defendants’ Clarksville, Indiana, store, where out of 1,395 employees hired from January 2005 through July 2009, only 23 (1.6%) were Black, compared to a representation rate of 5.5% Black employees in the county. e. Defendants’ Dania, Florida, store, where out of 1,251 employees hired from January 2005 through July 2009, only 150 (12%) were Black, compared to a representation rate of 18.5% Black employees in the county. f. Defendants’ Destin, Florida, store, where out of 430 employees hired from January 2005 through July 2009, only 3 (.7%) were Black, compared to a representation rate of 7.6% Black employees in the county. g. Defendants’ Duluth, Georgia, store, where out of 640 employees hired from January 2005 through July 2009, only 37 (5.8%) were Black, compared to a representation rate of 15.7% Black employees in the county. h. Defendants’ Garland, Texas, store, where out of 216 employees hired from January 2005 through May 2007, only 7 (3.2%) were Black, compared to a representation rate of 14.7% Black employees in the county.
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i. Defendants’ Grapevine, Texas, store, where out of 285 employees hired from January 2005 through May 2007, only 2 (.7%) were Black, compared to a representation rate of 10.1% Black employees in the county. j. Defendants’ Hampton, Virginia, store, where out of 786 employees hired from January 2005 through July 2009, only 136 (17.3%) were Black, compared to a representation rate of 37.2 % Black employees in the county. k. Defendants’ Hanover, Maryland, store, where out of 101employees hired from January 2005 through May 2007, only 4 (4%) were Black, compared to a representation rate of 14.6% Black employees in the county. l. Defendants’ Katy, Texas, store, where out of 306 employees hired from January 2005 through May 2007, only 8 (2.6%) were Black, compared to a representation rate of 15% Black employees in the county. m. Defendants’ Las Vegas, Nevada, store, where out of 867 employees hired from January 2005 through July 2009, only 30 (3.5%) were Black, compared to a representation rate of 7.4% Black employees in the county. n. Defendants’ Macon, Georgia, store, where out of 250 employees hired from January 2005 through May 2007, only 48 (19.2%) were Black, compared to a representation rate of 33.2% Black employees in the county. o. Defendants’ Memphis, Tennessee, store, where out of 428 employees hired from January 2005 through July 2009, only 35 (8.2%) were Black, compared to a representation rate of 36.4% Black employees in the county.
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p. Defendants’ Miami, Florida, store, where out of 367 employees hired from January 2005 through July 2009, only 11 (3%) were Black, compared to a representation rate of 15.2% Black employees in the county. q. Defendants’ Myrtle Beach, South Carolina, store, where out of 783 employees hired from January 2005 through July 2009, only 83 (10.6%) were Black, compared to a representation rate of 15.6% Black employees in the county. r. Defendants’ Nashville, Tennessee, store, where out of 839 employees hired from January 2005 through July 2009, only 51 (6.1%) were Black, compared to a representation rate of 15.7% Black employees in the county. s. Defendants’ Oklahoma City, Oklahoma, store, where out of 761 employees hired from January 2005 through July 2009, only 33 (4.3%) were Black, compared to a representation rate of 9.8% Black employees in the county. t. Defendants’ Orlando, Florida, store, where out of 946 employees hired from January 2005 through July 2009, only 53 (5.6%) were Black, compared to a representation rate of 12.1% Black employees in the county. u. Defendants’ Saint Charles, Missouri, store, where out of 643 employees hired from January 2005 through July 2009, only 15 (2.3%) were Black, compared to a representation rate of 4.5% Black employees in the county. v. Defendants’ San Antonio, Texas, store, where out of 273 employees hired from January 2005 through May 2007, only 4 (1.5%) were Black, compared to a representation rate of 6% Black employees in the county.
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w. Defendants’ Savannah, Georgia, store, where out of 538 employees hired from January 2005 through March 2009, only 101 (18.8%) were Black, compared to a representation rate of 30.1% Black employees in the county. 129. Comparing the number of Black employees hired (as specified in the hiring data for 24 of Defendants’ retail stores that Defendants produced to EEOC during EEOC’s administrative investigation) to the representation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 1,097 Black employees.
Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2007 130. According to Defendants’ 2007 EEO-1 reports, out of a total employment of 8,186 employees in 43 retail stores, only 365 (4.5%) employees were Black. 131. According to Defendants’ 2007 EEO-1 reports, 41 (95.3%) of Defendants’ 43 retail stores had a lower percentage of Black employees compared to the representation rate of Black in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Auburn, New York, store, where out of 153 employees, not one was Black, compared to a representation rate of 1% Black employees in the county. b. Defendants’ Auburn Hills, Michigan, store, where out of 153 employees, only 3 (2%) were Black, compared to a representation rate of 11.9% Black employees in the county.
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c. Defendants’ Bolingbrook, Illinois, store, where out of 195 employees, only 9 (4.6%) were Black, compared to a representation rate of 8.7% Black employees in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 195 employees, only 15 (7.7%) were Black, compared to a representation rate of 26.7% Black employees in the county. e. Defendants’ Branson, Missouri, store, where out of 109 employees, not one was Black, compared to a representation rate of .2% Black employees in the county. f. Defendants’ Broken Arrow, Oklahoma, store, where out of 177 employees, only 1 (.6%) was Black, compared to a representation rate of 7.8% Black employees in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 229 employees, only 6 (2.6%) were Black, compared to a representation rate of 13.3% Black employees in the county. h. Defendants’ Clarksville, Indiana, store, where out of 272 employees, only 3 (1.1%) were Black, compared to a representation rate of 5.5% Black employees in the county. i. Defendants’ Columbia, Missouri, store, where out of 125 employees, not one was Black, compared to a representation rate of 6.4% Black employees in the county.
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j. Defendants’ Concord, North Carolina, store, where out of 242 employees, only 11 (4.5%) were Black, compared to a representation rate of 12.4% Black employees in the county. k. Defendants’ Council Bluffs, Iowa, store, where out of 177 employees, not one was Black, compared to a representation rate of 1.6% Black employees in the county. l. Defendants’ Dania, Florida, store, where out of 255 employees, only 12 (4.7%) were Black, compared to a representation rate of 18.5% Black employees in the county. m. Defendants’ Denver, Colorado, store, where out of 241 employees, only seven (2.9%) were Black, compared to a representation rate of 6.4% Black employees in the county. n. Defendants’ Destin, Florida, store, where out of 108 employees, only one (.9%) was Black, compared to a representation rate of 7.6% Black employees in the county. o. Defendants’ Duluth Georgia, store, where out of 208 employees, only seven (3.4%) were Black, compared to a representation rate of 15.7% Black employees in the county. p. Defendants’ Ft. Myers, Florida, store, where out of 190 employees, only five (2.6%) were Black, compared to a representation rate of 5.9% Black employees in the county.
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q. Defendants’ Garland, Texas, store, where out of 139 employees, only one (.7%) was Black, compared to a representation rate of 14.7% Black employees in the county. r. Defendants’ Grapevine, Texas, store, where out of 300 employees, only seven (2.3%) were Black, compared to a representation rate of 10.1% Black employees in the county. s. Defendants’ Gurnee, Illinois, store, where out of 211 employees, only nine (4.3%) were Black, compared to a representation rate of 6% Black employees in the county. t. Defendants’ Hampton, Virginia, store, where out of 164 employees, only 23 (14%) were Black, compared to a representation rate of 37.2% Black employees in the county. u. Defendants’ Hanover, Maryland, store, where out of 172 employees, only 7 (4.1%) were Black, compared to a representation rate of 14.6% Black employees in the county. v. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 employees, only 11 (4.6%) were Black, compared to a representation rate of 8.4% Black employees in the county. w. Defendants’ Islamorada, Florida, store, where out of 63 employees, only three (4.8%) were Black, compared to a representation rate of 5.3% Black employees in the county.
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x. Defendants’ Katy, Texas, store, where out of 143 employees, only three (2.1%) were Black, compared to a representation rate of 15% Black employees in the county. y. Defendants’ Las Vegas, Nevada, store, where out of 210 employees, only five (2.4%) were Black, compared to a representation rate of 7.4% Black employees in the county. z. Defendants’ Macon, Georgia, store, where out of 156 employees, only thirty-four (21.8%) were Black, compared to a representation rate of 33.2% Black employees in the county. aa. Defendants’ Memphis, Tennessee, store, where out of 143 employees, only seven (4.9%) were Black, compared to a representation rate of 36.4% Black employees in the county. bb. Defendants’ Mesa, Arizona, store, where out of 187 employees, only one (.5%) was Black, compared to a representation rate of 3.2% Black employees in the county. cc. Defendants’ Miami, Florida, store, where out of 220 employees, only ten (4.5%) were Black, compared to a representation rate of 15.2% Black employees in the county. dd. Defendants’ Myrtle Beach, South Carolina, store, where out of 151 employees, only thirteen (8.6%) were Black, compared to a representation rate of 15.6% Black employees in the county.
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ee. Defendants’ Nashville, Tennessee, store, where out of 200 employees, only six (3%) were Black, compared to a representation rate of 15.7% Black employees in the county. ff. Defendants’ Oklahoma City, Oklahoma, store, where out of 155 employees, only four (2.6%) were Black, compared to a representation rate of 9.8% Black employees in the county. gg. Defendants’ Olathe, Kansas, store, where out of 174 employees, only three (1.7%) were Black, compared to a representation rate of 5.3% Black employees in the county. hh. Defendants’ Orlando, Florida, store, where out of 277 employees, only fifteen (5.4%) were Black, compared to a representation rate of 12.1% Black employees in the county. ii. Defendants’ Pearl, Mississippi, store, where out of 164 employees, only fourteen (18.5%) were Black, compared to a representation rate of 26.8% Black employees in the county. jj. Defendants’ Portage, Indiana, store, where out of 200 employees, only four (2%) were Black, compared to a representation rate of 3.7% Black employees in the county. kk. Defendants’ Prattville, Alabama, store, where out of 193 employees, only 17 (8.8%) were Black, compared to a representation rate of 14.2% Black employees in the county.
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ll. Defendants’ Rancho Cucamonga, California, store, where out of 305 employees, only 16 (5.2%) were Black, compared to a representation rate of 6.8% Black employees in the county. mm. Defendants’ Saint Charles, Missouri, store, where out of 224 employees, only nine (4%) were Black, compared to a representation rate of 4.5% Black employees in the county. nn. Defendants’ San Antonio, Texas, store, where out of 197 employees, only one (.5%) was Black, compared to a representation rate of 6% Black employees in the county. oo. Defendants’ Savannah, Georgia, store, where out of 147 employees, only 21 (14.3%) were Black, compared to a representation rate of 30.1% Black employees in the county. 132. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 589 Black employees in 2007.
Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2008 133. According to Defendants’ 2008 EEO-1 reports, out of a total employment of 8,410 employees in 49 retail stores, only 379 (4.5%) employees were Black. 134. According to Defendants’ 2008 EEO-1 reports, 47 (95.9%) of Defendants’ 49 retail stores had a lower percentage of Black employees compared to the representation rate of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
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a. Defendants’ Ashland, Virginia, store, where out of 171 employees, only 13 (7.6%) were Black, compared to a representation rate of 16.2% Black employees in the county. b. Defendants’ Auburn, New York, store, where out of 135 employees, not one was Black, compared to a representation rate of 1% Black employees in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 148 employees, only 2 (1.4%) were Black, compared to a representation rate of 11.9% Black employees in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 177 employees, only 10 (5.6%) were Black, compared to a representation rate of 8.7% Black employees in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 171 employees, only 14 (8.2%) were Black, compared to a representation rate of 26.7% Black employees in the county. f. Defendants’ Branson, Missouri, store, where out of 101 employees, not one was Black, compared to a representation rate of .2% Black employees in the county. g. Defendants’ Broken Arrow, Oklahoma, store, where out of 212 employees, only 2 (.9%) were Black, compared to a representation rate of 7.8% Black employees in the county.
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h. Defendants’ Cincinnati, Ohio, store, where out of 222 employees, only seven (3.2%) were Black, compared to a representation rate of 13.3% Black employees in the county. i. Defendants’ Clarksville, Indiana, store, where out of 223 employees, only 2 (.09%) were Black, compared to a representation rate of 5.5% Black employees in the county. j. Defendants’ Columbia, Missouri, store, where out of 98 employees, not one was Black, compared to a representation rate of 6.4% Black employees in the county. k. Defendants’ Concord, North Carolina, store, where out of 196 employees, only nine (4.6%) were Black, compared to a representation rate of 12.4% Black employees in the county. l. Defendants’ Council Bluffs, Iowa, store, where out of 165 employees, only one (.6%) was Black, compared to a representation rate of 1.6% Black employees in the county. m. Defendants’ Dania, Florida, store, where out of 229 employees, only 14 (6.1%) were Black, compared to a representation rate of 18.5% Black employees in the county. n. Defendants’ Denham Springs, Louisiana, store, where out of 166 employees, only 4 (2.4%) were Black, compared to a representation rate of 9.5% Black employees in the county.
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o. Defendants’ Denver, Colorado, store, where out of 198 employees, only 5 (2.5%) were Black, compared to a representation rate of 6.4% Black employees in the county. p. Defendants’ Destin, Florida, store, where out of 99 employees, only 1 (1%) were Black, compared to a representation rate of 7.6% Black employees in the county. q. Defendants’ Duluth, Georgia, store, where out of 193 employees, only six (3.1%) were Black, compared to a representation rate of 15.7% Black employees in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 207 employees, only 3 (1.4%) were Black, compared to a representation rate of 3.7% Black employees in the county. s. Defendants’ Ft. Myers, Florida, store, where out of 172 employees, only 2 (1.2%) were Black, compared to a representation rate of 5.9% Black employees in the county. t. Defendants’ Garland, Texas, store, where out of 123 employees, only one (.8%) was Black, compared to a representation rate of 14.7% Black employees in the county. u. Defendants’ Grapevine, Texas, store, where out of 291 employees, only eight (2.7%) were Black, compared to a representation rate of 10.1% Black employees in the county.
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v. Defendants’ Gurnee, Illinois, store, where out of 175 employees, only seven (4%) were Black, compared to a representation rate of 6% Black employees in the county. w. Defendants’ Hampton, Virginia, store, where out of 165 employees, only 34 (20.6%) were Black, compared to a representation rate of 37.2% Black employees in the county. x. Defendants’ Hanover, Maryland, store, where out of 221 employees, only 17 (7.7%) were Black, compared to a representation rate of 14.6% Black employees in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 employees, only 12 (5.1%) were Black, compared to a representation rate of 8.4% Black employees in the county. z. Defendants’ Independence, Missouri, store, where out of 166 employees, only one (.6%) was Black, compared to a representation rate of 13% Black employees in the county. aa. Defendants’ Islamorada, Florida, store, where out of 61 employees, only 3 (4.9%) were Black, compared to a representation rate of 5.3% Black employees in the county. bb. Defendants’ Katy, Texas, store, where out of 129 employees, only six (4.7%) were Black, compared to a representation rate of 15% Black employees in the county.
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cc. Defendants’ Kodak, Tennessee, store, where out of 195 employees, only one (.5%) was Black, compared to a representation rate of .9% Black employees in the county. dd. Defendants’ Las Vegas, Nevada, store, where out of 195 employees, only 3 (1.5%) were Black, compared to a representation rate of 7.4% Black employees in the county. ee. Defendants’ Macon, Georgia, store, where out of 158 employees, only 21 (13.3%) were Black, compared to a representation rate of 33.2% Black employees in the county. ff. Defendants’ Memphis, Tennessee, store, where out of 125 employees, only ten (8%) were Black, compared to a representation rate of 36.4% Black employees in the county. gg. Defendants’ Mesa, Arizona, store, where out of 154 employees, only 2 (1.3%) were Black, compared to a representation rate of 3.2% Black employees in the county. hh. Defendants’ Miami, Florida, store, where out of 119 employees, only one (.8%) was Black, compared to a representation rate of 15.2% Black employees in the county. ii. Defendants’ Myrtle Beach, South Carolina, store, where out of 136 employees, only 13 (9.6%) were Black, compared to a representation rate of 15.6% Black employees in the county.
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jj. Defendants’ Nashville, Tennessee, store, where out of 196 employees, only 5 (2.6%) were Black, compared to a representation rate of 15.7% Black employees in the county. kk. Defendants’ Oklahoma City, Oklahoma, store, where out of 130 employees, only 7 (5.4%) were Black, compared to a representation rate of 9.8% Black employees in the county. ll. Defendants’ Olathe, Kansas, store, where out of 156 employees, only four (2.6%) were Black, compared to a representation rate of 5.3% Black employees in the county. mm. Defendants’ Orlando, Florida, store, where out of 224 employees, only 14 (6.3%) were Black, compared to a representation rate of 12.1% Black employees in the county. nn. Defendants’ Pearl, Mississippi, store, where out of 153 employees, only 12 (7.8%) were Black, compared to a representation rate of 26.8% Black employees in the county. oo. Defendants’ Portage, Indiana, store, where out of 157 employees, only one (.6%) was Black, compared to a representation rate of 3.7% Black employees in the county. pp. Defendants’ Prattville, Alabama, store, where out of 187 employees, only nine (4.8%) were Black, compared to a representation rate of 14.2% Black employees in the county.
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qq. Defendants’ Rancho Cucamonga, California, store, where out of 260 employees, only 13 (5%) were Black, compared to a representation rate of 6.8% Black employees in the county. rr. Defendants’ Rossford, Ohio, store, where out of 216 employees, only three (1.4%) were Black, compared to a representation rate of 4.1% Black employees in the county. ss. Defendants’ San Antonio, Texas, store, where out of 179 employees, only one (.6%) was Black, compared to a representation rate of 6% Black employees in the county. tt. Defendants’ Savannah, Georgia, store, where out of 118 employees, only 24 (20.3%) were Black, compared to a representation rate of 30.1% Black employees in the county. uu. Defendants’ Spanish Fort, Alabama, store, where out of 197 employees, only 21 (10.7%) were Black, compared to a representation rate of 5.3% Black employees in the county. 135. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 586 Black employees in 2008.
Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2009 136. According to Defendants’ 2009 EEO-1 reports, out of a total employment of 8,561 employees in 52 retail stores, only 356 (4.2%) employees were Black.
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137. According to Defendants’ 2009 EEO-1 reports, 48 (92.3%) of Defendants’ 52 retail stores had a lower percentage of Black employees compared to the representation rate of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Altoona, Iowa, store, where out of 208 employees, only one (.5%) was Black, compared to a representation rate of 2.9% Black employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 202 employees, only 15 (7.4%) were Black, compared to a representation rate of 16.2% Black employees in the county. c. Defendants’ Auburn, New York, store, where out of 144 employees, not one was Black, compared to a representation rate of 1% Black employees in the county. d. Defendants’ Auburn Hills, Michigan, store, where out of 137 employees, only two (1.5%) were Black, compared to a representation rate of 11.9% Black employees in the county. e. Defendants’ Bolingbrook, Illinois, store, where out of 168 employees, only six (3.6%) were Black, compared to a representation rate of 8.7% Black employees in the county. f. Defendants’ Bossier City, Louisiana, store, where out of 166 employees, only 17 (10.2%) were Black, compared to a representation rate of 26.7% Black employees in the county.
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g. Defendants’ Branson, Missouri, store, where out of 97 employees, not one was Black, compared to a representation rate of .2% Black employees in the county. h. Defendants’ Broken Arrow, Oklahoma, store, where out of 210 employees, only four (1.9%) were Black, compared to a representation rate of 7.8% Black employees in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 220 employees, only six (2.7%) were Black, compared to a representation rate of 13.3% Black employees in the county. j. Defendants’ Clarksville, Indiana, store, where out of 223 employees, only one (.4%) was Black, compared to a representation rate of 5.5% Black employees in the county. k. Defendants’ Columbia, Missouri, store, where out of 74 employees, not one was Black, compared to a representation rate of 6.4% Black employees in the county. l. Defendants’ Concord, North Carolina, store, where out of 189 employees, only nine (4.8%) were Black, compared to a representation rate of 12.4% Black employees in the county. m. Defendants’ Council Bluffs, Iowa, store, where out of 172 employees, not one was Black, compared to a representation rate of 1.6% Black employees in the county.
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n. Defendants’ Dania, Florida, store, where out of 233 employees, only nine (3.9%) were Black, compared to a representation rate of 18.5% Black employees in the county. o. Defendants’ Denham Springs, Louisiana, store, where out of 160 employees, only two (1.3%) were Black, compared to a representation rate of 9.5% Black employees in the county. p. Defendants’ Denver, Colorado, store, where out of 216 employees, only eight (3.7%) were Black, compared to a representation rate of 6.4% Black employees in the county. q. Defendants’ Destin, Florida, store, where out of 100 employees, only two (2%) were Black, compared to a representation rate of 7.6% Black employees in the county. r. Defendants’ Duluth, Georgia, store, where out of 182 employees, only four (2.2%) were Black, compared to a representation rate of 15.7% Black employees in the county. s. Defendants’ Foxborough, Massachusetts, store, where out of 188 employees, only one (.5%) was Black, compared to a representation rate of 3.7% Black employees in the county. t. Defendants’ Ft. Myers, Florida, store, where out of 161 employees, only one (.6%) was Black, compared to a representation rate of 5.9% Black employees in the county.
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u. Defendants’ Garland, Texas, store, where out of 115 employees, only two (1.7%) were Black, compared to a representation rate of 14.7% Black employees in the county. v. Defendants’ Grapevine, Texas, store, where out of 242 employees, only five (2.1%) were Black, compared to a representation rate of 10.1% Black employees in the county. w. Defendants’ Gurnee, Illinois, store, where out of 144 employees, only four (2.8%) were Black, compared to a representation rate of 6% Black employees in the county. x. Defendants’ Hampton, Virginia, store, where out of 145 employees, only 34 (23.4%) were Black, compared to a representation rate of 37.2% Black employees in the county. y. Defendants’ Hanover, Maryland, store, where out of 214 employees, only nine (4.2%) were Black, compared to a representation rate of 14.6% Black employees in the county. z. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 employees, only seven (3.6%) were Black, compared to a representation rate of 8.4% Black employees in the county. aa. Defendants’ Independence, Missouri, store, where out of 149 employees, only one (.7%) was Black, compared to a representation rate of 13% Black employees in the county.
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bb. Defendants’ Islamorada, Florida, store, where out of 55 employees, only two (3.6%) were Black, compared to a representation rate of 5.3% Black employees in the county. cc. Defendants’ Katy, Texas, store, where out of 125 employees, only eight (6.4%) were Black, compared to a representation rate of 15% Black employees in the county. dd. Defendants’ Las Vegas, Nevada, store, where out of 164 employees, only three (1.8%) were Black, compared to a representation rate of 7.4% Black employees in the county. ee. Defendants’ Leeds, Alabama, store, where out of 218 employees, only twelve (5.5%) were Black, compared to a representation rate of 26.9% Black employees in the county. ff. Defendants’ Macon, Georgia, store, where out of 137 employees, only 21 (15.3%) were Black, compared to a representation rate of 33.2% Black employees in the county. gg. Defendants’ Manteca, California, store, where out of 186 employees, only six (3.2%) were Black, compared to a representation rate of 4.5% Black employees in the county. hh. Defendants’ Memphis, Tennessee, store, where out of 131 employees, only seven (5.3%) were Black, compared to a representation rate of 36.4% Black employees in the county.
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ii. Defendants’ Miami, Florida, store, where out of 112 employees, only one (.9%) was Black, compared to a representation rate of 15.2% Black employees in the county. jj. Defendants’ Myrtle Beach, South Carolina, store, where out of 131 employees, only nine (6.9%) were Black, compared to a representation rate of 15.6% Black employees in the county. kk. Defendants’ Nashville, Tennessee, store, where out of 181 employees, only one (.6%) was Black, compared to a representation rate of 15.7% Black employees in the county. ll. Defendants’ Oklahoma City, Oklahoma, store, where out of 146 employees, only four (2.7%) were Black, compared to a representation rate of 9.8% Black employees in the county. mm. Defendants’ Olathe, Kansas, store, where out of 128 employees, only three (2.3%) were Black, compared to a representation rate of 5.3% Black employees in the county. nn. Defendants’ Orlando, Florida, store, where out of 214 employees, only fourteen (6.5%) were Black, compared to a representation rate of 12.1% Black employees in the county. oo. Defendants’ Pearl, Mississippi, store, where out of 159 employees, only twelve (7.5%) were Black, compared to a representation rate of 26.8% Black employees in the county.
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pp. Defendants’ Portage, Indiana, store, where out of 144 employees, only three (2.1%) were Black, compared to a representation rate of 3.7% Black employees in the county. qq. Defendants’ Prattville, Alabama, store, where out of 148 employees, only seven (4.7%) were Black, compared to a representation rate of 14.2% Black employees in the county rr. Defendants’ Rancho Cucamonga, California, store, where out of 260 employees, only 15 (5.8%) were Black, compared to a representation rate of 6.8% Black employees in the county. ss. Defendants’ Rossford, Ohio, store, where out of 167 employees, only one (.6%) was Black, compared to a representation rate of 4.1% Black employees in the county. tt. Defendants’ San Antonio, Texas, store, where out of 154 employees, only one (.6%) was Black, compared to a representation rate of 6% Black employees in the county. uu. Defendants’ Savannah, Georgia, store, where out of 117 employees, only 26 (22.2%) were Black, compared to a representation rate of 30.1% Black employees in the county. vv. Defendants’ Spanish Fort, Alabama, store, where out of 177 employees, only 14 (7.9%) were Black, compared to a representation rate of 11.2% Black employees in the county. 138. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Black
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employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 634 Black employees in 2009.
Defendants’ Discriminatory Failure to Hire Black Employees at Defendants’ Retail Stores in 2010 139. According to Defendants’ 2010 EEO-1 reports, out of a total employment of 8,839 employees in 52 retail stores, only 381 (4.3%) employees were Black. 140. According to Defendants’ 2010 EEO-1 reports, 50 (96.2%) of Defendants’ 52 retail stores had a lower percentage of Black employees compared to the representation rate of Black employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 189 employees, not one was Black, compared to a representation rate of 2.9% Black employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 190 employees, only 19 (10%) were Black, compared to a representation rate of 16.2% Black employees in the county. c. Defendants’ Auburn, New York, store, where out of 139 employees, not one was Black, compared to a representation rate of 1% Black employees in the county. d. Defendants’ Auburn Hills, Michigan, store, where out of 156 employees, only 2 (1.3%) were Black, compared to a representation rate of 11.9% Black employees in the county.
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e. Defendants’ Bolingbrook, Illinois, store, where out of 170 employees, only 8 (4.7%) were Black, compared to a representation rate of 8.7% Black employees in the county. f. Defendants’ Bossier City, Louisiana, store, where out of 173 employees, only 17 (9.8%) were Black, compared to a representation rate of 26.7% Black employees in the county. g. Defendants’ Branson, Missouri, store, where out of 105 employees, not one was Black, compared to a representation rate of .2% Black employees in the county. h. Defendants’ Broken Arrow, Oklahoma, store, where out of 215 employees, only three (1.4%) were Black, compared to a representation rate of 7.8% Black employees in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 207 employees, only 7 (3.4%) were Black, compared to a representation rate of 13.3% Black employees in the county. j. Defendants’ Clarksville, Indiana, store, where out of 234 employees, only one (.4%) was Black, compared to a representation rate of 5.5% Black employees in the county. k. Defendants’ Columbia, Missouri, store, where out of 98 employees, only two (2%) were Black, compared to a representation rate of 6.4% Black employees in the county.
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l. Defendants’ Concord, North Carolina, store, where out of 203 employees, only 10 (4.9%) were Black, compared to a representation rate of 12.4% Black employees in the county. m. Defendants’ Council Bluffs, Iowa, store, where out of 190 employees, not one was Black, compared to a representation rate of 1.6% Black employees in the county. n. Defendants’ Dania, Florida, store, where out of 227 employees, only nine (4%) were Black, compared to a representation rate of 18.5% Black employees in the county. o. Defendants’ Denham Springs, Louisiana, store, where out of 163 employees, only five (3.1%) were Black, compared to a representation rate of 9.5 % Black employees in the county. p. Defendants’ Denver, Colorado, store, where out of 206 employees, only seven (3.4%) were Black, compared to a representation rate of 6.4% Black employees in the county. q. Defendants’ Destin, Florida, store, where out of 106 employees, only two (1.9%) were Black, compared to a representation rate of 7.6% Black employees in the county. r. Defendants’ Duluth, Georgia, store, where out of 183 employees, only six (3.3%) were Black, compared to a representation rate of 15.7% Black employees in the county.
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s. Defendants’ Foxborough, Massachusetts, store, where out of 190 employees, only one (.5%) was Black, compared to a representation rate of 3.7% Black employees in the county. t. Defendants’ Ft. Myers, Florida, store, where out of 157 employees, only two (1.3%) were Black, compared to a representation rate of 5.9% Black employees in the county. u. Defendants’ Garland, Texas, store, where out of 134 employees, only three (2.2%) were Black, compared to a representation rate of 14.7% Black employees in the county. v. Defendants’ Grapevine, Texas, store, where out of 290 employees, only eight (2.8%) were Black, compared to a representation rate of 10.1% Black employees in the county. w. Defendants’ Gurnee, Illinois, store, where out of 159 employees, only three (1.9%) were Black, compared to a representation rate of 6% Black employees in the county. x. Defendants’ Hampton, Virginia, store, where out of 155 employees, only 37 (23.9%) were Black, compared to a representation rate of 37.2% Black employees in the county. y. Defendants’ Hanover, Maryland, store, where out of 225 employees, only 10 (4.4%) were Black, compared to a representation rate of 14.6% Black employees in the county.
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z. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 employees, only ten (4.9%) were Black, compared to a representation rate of 8.4% Black employees in the county. aa. Defendants’ Independence, Missouri, store, where out of 153 employees, not one was Black, compared to a representation rate of 13% Black employees in the county. bb. Defendants’ Islamorada, Florida, store, where out of 57 employees, only one (1.8%) was Black, compared to a representation rate of 5.3% Black employees in the county. cc. Defendants’ Katy, Texas, store, where out of 120 employees, only six (5%) were Black, compared to a representation rate of 15% Black employees in the county. dd. Defendants’ Las Vegas, Nevada, store, where out of 155 employees, only five (3.2%) were Black, compared to a representation rate of 7.4% Black employees in the county. ee. Defendants’ Leeds, Alabama, store, where out of 182 employees, only 11 (6%) were Black, compared to a representation rate of 26.9% Black employees in the county. ff. Defendants’ Macon, Georgia, store, where out of 155 employees, only 31 (20%) were Black, compared to a representation rate of 33.2% Black employees in the county.
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gg. Defendants’ Manteca, California, store, where out of 225 employees, only 4 (1.8%) were Black, compared to a representation rate of 4.5% Black employees in the county. hh. Defendants’ Memphis, Tennessee, store, where out of 136 employees, only 7 (5.1%) were Black, compared to a representation rate of 36.4% Black employees in the county. ii. Defendants’ Mesa, Arizona, store, where out of 154 employees, only three (1.9%) were Black, compared to a representation rate of 3.2% Black employees in the county. jj. Defendants’ Miami, Florida, store, where out of 124 employees, only two (1.6%) were Black, compared to a representation rate of 15.2% Black employees in the county. kk. Defendants’ Myrtle Beach, South Carolina, store, where out of 135 employees, only 13 (9.6%) were Black, compared to a representation rate of 15.6% Black employees in the county. ll. Defendants’ Nashville, Tennessee, store, where out of 180 employees, only one (.6%) was Black, compared to a representation rate of 15.7% Black employees in the county. mm. Defendants’ Oklahoma City, Oklahoma, store, where out of 152 employees, only two (1.3%) were Black, compared to a representation rate of 9.8% Black employees in the county.
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nn. Defendants’ Olathe, Kansas, store, where out of 134 employees, only three (2.2%) were Black, compared to a representation rate of 5.3% Black employees in the county. oo. Defendants’ Orlando, Florida, store, where out of 205 employees, only 14 (6.8%) were Black, compared to a representation rate of 12.1% Black employees in the county. pp. Defendants’ Pearl, Mississippi, store, where out of 149 employees, only nine (6%) were Black, compared to a representation rate of 26.8% Black employees in the county. qq. Defendants’ Portage, Indiana, store, where out of 146 employees, only three (2.1%) were Black, compared to a representation rate of 3.7% Black employees in the county. rr. Defendants’ Prattville, Alabama, store, where out of 130 employees, only seven (5.4%) were Black, compared to a representation rate of 14.2% Black employees in the county. ss. Defendants’ Rancho Cucamonga, California, store, where out of 281 employees, only 14 (5%) were Black, compared to a representation rate of 6.8% Black employees in the county. tt. Defendants’ Rossford, Ohio, store, where out of 167 employees, only two (1.2%) were Black, compared to a representation rate of 4.1% Black employees in the county.
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uu. Defendants’ Saint Charles, Missouri, store, where out of 190 employees, only eight (4.2%) were Black, compared to a representation rate of 4.5% Black employees in the county. vv. Defendants’ San Antonio, Texas, store, where out of 192 employees, only one (.5%) was Black, compared to a representation rate of 6% Black employees in the county. ww. Defendants’ Savannah, Georgia, store, where out of 113 employees, only 24 (21.2%) were Black, compared to a representation rate of 30.1% Black employees in the county. xx. Defendants’ Spanish Fort, Alabama, store, where out of 192 employees, only 14 (7.3%) were Black, compared to a representation rate of 11.2% Black employees in the county. 141. Comparing the number of Black employees employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of Black employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 629 Black employees in 2010. DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE BLACK MANAGERS
Defendants’ Discriminatory Failure to Hire Black Managers at Defendants’ Retail Stores in 2007 142. According to Defendants’ 2007 EEO-1 reports, out of a total employment of 8,186 employees in 43 retail stores, 606 (7.4%) employees were managers. 143. According to Defendants’ 2007 EEO-1 reports, out of 606 managers in Defendants’ 43 retail stores, only 14 (2.3%) were Black.
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144. According to Defendants’ 2007 EEO-1 reports, 36 (83.7%) of Defendants’ 43 retail stores had a lower percentage of Black managers compared to the representation rate of Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Black, compared to a representation rate of .6% Black managers in the county. b. Defendants’ Auburn Hills, Michigan, store, where out of 13 managers, not one was Black, compared to a representation rate of 7.9% Black managers in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 15 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 15 managers, not one was Black, compared to a representation rate of 12% Black managers in the county. e. Defendants’ Branson, Missouri, store, where out of ten managers, not one was Black, compared to a representation rate of .2% Black managers in the county. f. Defendants’ Broken Arrow, Oklahoma, store, where out of 15 managers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county.
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g. Defendants’ Cincinnati, Ohio, store, where out of 14 managers, not one was Black, compared to a representation rate of 7.5% Black managers in the county. h. Defendants’ Clarksville, Indiana, store, where out of 16 managers, not one was Black, compared to a representation rate of 2.8% Black managers in the county. i. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Black, compared to a representation rate of 4.9% Black managers in the county. j. Defendants’ Council Bluffs, Iowa, store, where out of 14 managers, not one was Black, compared to a representation rate of .4% Black managers in the county. k. Defendants’ Dania, Florida, store, where out of 15 managers, only one (6.7%) was Black, compared to a representation rate of 8.3% Black managers in the county. l. Defendants’ Denver, Colorado, store, where out of 17 managers, not one was Black, compared to a representation rate of 4.6% Black managers in the county. m. Defendants’ Destin, Florida, store, where out of 10 managers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. n. Defendants’ Duluth, Georgia, store, where out of 16 managers, not one was Black, compared to a representation rate of 10.3% Black managers in the county.
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o. Defendants’ Ft. Myers, Florida, store, where out of 14 managers, not one was Black, compared to a representation rate of 1.3% Black managers in the county. p. Defendants’ Garland, Texas, store, where out of 14 managers, only one (7.1%) was Black, compared to a representation rate of 9.3% Black managers in the county. q. Defendants’ Grapevine, Texas, store, where out of 21 managers, not one was Black, compared to a representation rate of 6% Black managers in the county. r. Defendants’ Hampton, Virginia, store, where out of 13 managers, only one (7.7%) was Black, compared to a representation rate of 23% Black managers in the county. s. Defendants’ Hanover, Maryland, store, where out of 13 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county. t. Defendants’ Harrisburg, Pennsylvania, store, where out of 14 managers, not one was Black, compared to a representation rate of 5.8% Black managers in the county. u. Defendants’ Islamorada, Florida, store, where out of six managers, not one was Black, compared to a representation rate of 1.9% Black managers in the county. v. Defendants’ Katy, Texas, store, where out of 13 managers, not one was Black, compared to a representation rate of 9.6% Black managers in the county.
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w. Defendants’ Kodak, Tennessee, store, where out of 14 managers, not one was Black, compared to a representation rate of 1% Black managers in the county. x. Defendants’ Las Vegas, Nevada, store, where out of 13 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. y. Defendants’ Macon, Georgia, store, where out of 12 managers, only one (8.3%) was Black, compared to a representation rate of 20.5% Black managers in the county. z. Defendants’ Memphis, Tennessee, store, where out of 14 managers, only one (7.1%) was Black, compared to a representation rate of 21.6% Black managers in the county. aa. Defendants’ Mesa, Arizona, store, where out of 16 managers, not one was Black, compared to a representation rate of 2.5% Black managers in the county. bb. Defendants’ Miami, Florida, store, where out of 14 managers, not one was Black, compared to a representation rate of 8% Black managers in the county. cc. Defendants’ Nashville, Tennessee, store, where out of 14 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county. dd. Defendants’ Oklahoma City, Oklahoma, store, where out of 15 managers, not one was Black, compared to a representation rate of 6.1% Black managers in the county.
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ee. Defendants’ Orlando, Florida, store, where out of 17 managers, not one was Black, compared to a representation rate of 6.9% Black managers in the county. ff. Defendants’ Pearl, Mississippi, store, where out of 14 managers, only one (7.1%) was Black, compared to a representation rate of 10.5% Black managers in the county. gg. Defendants’ Portage, Indiana, store, where out of 14 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. hh. Defendants’ Prattville, Alabama, store, where out of 16 managers, not one was Black, compared to a representation rate of 4.2% Black managers in the county. ii. Defendants’ Rancho Cucamonga, California, store, where out of 20 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. jj. Defendants’ San Antonio, Texas, store, where out of 16 managers, not one was Black, compared to a representation rate of 5.5% Black managers in the county. 145. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Black managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 27 Black managers in 2007.
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Defendants’ Discriminatory Failure to Hire Black Managers at Defendants’ Retail Stores in 2008 146. According to Defendants’ 2008 EEO-1 reports, out of a total employment of 8,410 employees in 49 retail stores, 630 (7.5%) employees were managers. 147. According to Defendants’ 2008 EEO-1 reports, out of 630 managers in Defendants’ 49 retail stores, only 17 (2.7%) were Black. 148. According to Defendants’ 2008 EEO-1 reports, 39 (79.6%) of Defendants’ 49 retail stores had a lower percentage of Black managers compared to the representation rate of Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Black, compared to a representation rate of .6% Black managers in the county. b. Defendants’ Auburn Hills, Michigan, store, where out of 13 managers, not one was Black, compared to a representation rate of 7.9% Black managers in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 12 managers, not one was Black, compared to a representation rate of 12% Black managers in the county.
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e. Defendants’ Branson, Missouri, store, where out of 9 managers, not one was Black, compared to a representation rate of .2% Black managers in the county. f. Defendants’ Broken Arrow, Oklahoma, store, where out of 12 managers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 14 managers, not one was Black, compared to a representation rate of 7.5% Black managers in the county. h. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Black, compared to a representation rate of 4.9% Black managers in the county. i. Defendants’ Council Bluffs, Iowa, store, where out of 12 managers, not one was Black, compared to a representation rate of .4% Black managers in the county. j. Defendants’ Dania, Florida, store, where out of 15 managers, only one (6.7%) was Black, compared to a representation rate of 8.3% Black managers in the county. k. Defendants’ Denham Springs, Louisiana, store, where out of 14 managers, not one was Black, compared to a representation rate of 3.7% Black managers in the county.
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l. Defendants’ Denver, Colorado, store, where out of 14 managers, not one was Black, compared to a representation rate of 4.6% Black managers in the county. m. Defendants’ Destin, Florida, store, where out of 9 managers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. n. Defendants’ Duluth, Georgia, store, where out of 15 managers, not one was Black, compared to a representation rate of 10.3% Black managers in the county. o. Defendants’ Ft. Myers, Florida, store, where out of 11 managers, not one was Black, compared to a representation rate of 1.3% Black managers in the county. p. Defendants’ Garland, Texas, store, where out of 10 managers, not one was Black, compared to a representation rate of 9.3% Black managers in the county. q. Defendants’ Grapevine, Texas, store, where out of 19 managers, not one was Black, compared to a representation rate of 6% Black managers in the county. r. Defendants’ Hanover, Maryland, store, where out of 14 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county. s. Defendants’ Harrisburg, Pennsylvania, store, where out of 12 managers, not one was Black, compared to a representation rate of 5.8% Black managers in the county.
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t. Defendants’ Independence, Missouri, store, where out of 14 managers, not one was Black, compared to a representation rate of 9.1% Black managers in the county. u. Defendants’ Islamorada, Florida, store, where out of 6 managers, not one was Black, compared to a representation rate of 1.9% Black managers in the county. v. Defendants’ Katy, Texas, store, where out of 11 managers, only one (9.1%) was Black, compared to a representation rate of 9.6% Black managers in the county. w. Defendants’ Kodak, Tennessee, store, where out of 15 managers, not one was Black, compared to a representation rate of 1% Black managers in the county. x. Defendants’ Las Vegas, Nevada, store, where out of 14 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. y. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Black, compared to a representation rate of 20.5% Black managers in the county. z. Defendants’ Memphis, Tennessee, store, where out of 13 managers, only one (7.7%) was Black, compared to a representation rate of 21.6% Black managers in the county. aa. Defendants’ Mesa, Arizona, store, where out of 14 managers, not one was Black, compared to a representation rate of 2.5% Black managers in the county.
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bb. Defendants’ Miami, Florida, store, where out of 12 managers, not one was Black, compared to a representation rate of 8% Black managers in the county. cc. Defendants’ Myrtle Beach, South Carolina, store, where out of 13 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. dd. Defendants’ Nashville, Tennessee, store, where out of 15 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county. ee. Defendants’ Oklahoma City, Oklahoma, store, where out of 15 managers, not one was Black, compared to a representation rate of 6.1% Black managers in the county. ff. Defendants’ Orlando, Florida, store, where out of 17 managers, not one was Black, compared to a representation rate of 6.9% Black managers in the county. gg. Defendants’ Pearl, Mississippi, store, where out of 14 managers, only one (7.1%) was Black, compared to a representation rate of 10.5% Black managers in the county. hh. Defendants’ Portage, Indiana, store, where out of 12 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. ii. Defendants’ Prattville, Alabama, store, where out of 14 managers, not one was Black, compared to a representation rate of 4.2% Black managers in the county.
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jj. Defendants’ Rancho Cucamonga, California, store, where out of 15 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. kk. Defendants’ Rossford, Ohio, store, where out of 13 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. ll. Defendants’ San Antonio, Texas, store, where out of 15 managers, not one was Black, compared to a representation rate of 5.5% Black managers in the county. mm. Defendants’ Savannah, Georgia, store, where out of 13 managers, only one (7.7%) was Black, compared to a representation rate of 14.9% Black managers in the county. 149. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Black managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 24 Black managers in 2008.
Defendants’ Discriminatory Failure to Hire Black Managers at Defendants’ Retail Stores in 2009 150. According to Defendants’ 2009 EEO-1 reports, out of a total employment of 8,561 employees in 52 retail stores, 588 (6.9%) employees were managers. 151. According to Defendants’ 2009 EEO-1 reports, out of 588 managers in Defendants’ 52 retail stores, only 11 (1.9%) were Black. 152. According to Defendants’ 2009 EEO-1 reports, 48 (92.3%) of Defendants’ 52 retail stores had a lower percentage of Black managers compared to the representation rate of
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Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Altoona, Iowa, store, where out of 12 managers, not one was Black, compared to a representation rate of 1.3% Black managers in the county. b. Defendants’ Auburn, New York, store, where out of 11 managers, not one was Black, compared to a representation rate of .6% Black managers in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 11 managers, not one was Black, compared to a representation rate of 7.9% Black managers in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 10 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 11 managers, not one was Black, compared to a representation rate of 12% Black managers in the county. f. Defendants’ Branson, Missouri, store, where out of 10 managers, not one was Black, compared to a representation rate of .2% Black managers in the county. g. Defendants’ Broken Arrow, Oklahoma, store, where out of 12 managers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county.
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h. Defendants’ Cincinnati, Ohio, store, where out of 11 managers, not one was Black, compared to a representation rate of 7.5% Black managers in the county. i. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Black, compared to a representation rate of 2.8% Black managers in the county. j. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Black, compared to a representation rate of 4.9% Black managers in the county. k. Defendants’ Concord, North Carolina, store, where out of 12 managers, not one was Black, compared to a representation rate of 4.2% Black managers in the county. l. Defendants’ Council Bluffs, Iowa, store, where out of 12 managers, not one was Black, compared to a representation rate of .4% Black managers in the county. m. Defendants’ Dania, Florida, store, where out of 13 managers, only one (7.7%) was Black, compared to a representation rate of 8.3% Black managers in the county. n. Defendants’ Denham Springs, Louisiana, store, where out of 11 managers, not one was Black, compared to a representation rate of 3.7% Black managers in the county.
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o. Defendants’ Denver, Colorado, store, where out of 13 managers, not one was Black, compared to a representation rate of 4.6% Black managers in the county. p. Defendants’ Destin, Florida, store, where out of 9 managers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. q. Defendants’ Duluth, Georgia, store, where out of 12 managers, not one was Black, compared to a representation rate of 10.3% Black managers in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Black, compared to a representation rate of 2.2% Black managers in the county. s. Defendants’ Ft. Myers, Florida, store, where out of 12 managers, not one was Black, compared to a representation rate of 1.3% Black managers in the county. t. Defendants’ Garland, Texas, store, where out of nine managers, not one was Black, compared to a representation rate of 9.3% Black managers in the county. u. Defendants’ Grapevine, Texas, store, where out of 16 managers, not one was Black, compared to a representation rate of 6% Black managers in the county. v. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Black, compared to a representation rate of 4.1% Black managers in the county.
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w. Defendants’ Hampton, Virginia, store, where out of 11 managers, only two (19.2%) were Black, compared to a representation rate of 23% Black managers in the county. x. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of nine managers, not one was Black, compared to a representation rate of 5.8% Black managers in the county. z. Defendants’ Independence, Missouri, store, where out of 12 managers, only one (8.3%) was Black, compared to a representation rate of 9.1% Black managers in the county. aa. Defendants’ Islamorada, Florida, store, where out of six managers, not one was Black, compared to a representation rate of 1.9% Black managers in the county. bb. Defendants’ Katy, Texas, store, where out of nine managers, not one was Black, compared to a representation rate of 9.6% Black managers in the county. cc. Defendants’ Kodak, Tennessee, store, where out of 12 managers, not one was Black, compared to a representation rate of 1% Black managers in the county. dd. Defendants’ Las Vegas, Nevada, store, where out of 11 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county.
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ee. Defendants’ Leeds, Alabama, store, where out of 12 managers only one (8.3%) was Black, compared to a representation rate of 15.3% Black managers in the county. ff. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Black, compared to a representation rate of 20.5% Black managers in the county. gg. Defendants’ Manteca, California, store, where out of 12 managers, not one was Black, compared to a representation rate of 2.7% Black managers in the county. hh. Defendants’ Memphis, Tennessee, store, where out of 11 managers, only one (7.7%) was Black, compared to a representation rate of 21.6% Black managers in the county. ii. Defendants’ Mesa, Arizona, store, where out of 12 managers, not one was Black, compared to a representation rate of 2.5% Black managers in the county. jj. Defendants’ Miami, Florida, store, where out of 11 managers, not one was Black, compared to a representation rate of 8% Black managers in the county. kk. Defendants’ Myrtle Beach, South Carolina, store, where out of ten managers, not one was Black, compared to a representation rate of 5% Black managers in the county. ll. Defendants’ Nashville, Tennessee, store, where out of 12 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county.
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mm. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 managers, not one was Black, compared to a representation rate of 6.1% Black managers in the county. nn. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was Black, compared to a representation rate of 3.6% Black managers in the county. oo. Defendants’ Orlando, Florida, store, where out of 13 managers, not one was Black, compared to a representation rate of 6.9% Black managers in the county. pp. Defendants’ Pearl, Mississippi, store, where out of 12 managers, only one (7.1%) was Black, compared to a representation rate of 10.5% Black managers in the county. qq. Defendants’ Pearland, Texas, store, where out of ten managers, only one (7.1%) was Black, compared to a representation rate of 5.8% Black managers in the county. rr. Defendants’ Portage, Indiana, store, where out of 11 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. ss. Defendants’ Prattville, Alabama, store, where out of 11 managers, not one was Black, compared to a representation rate of 4.2% Black managers in the county. tt. Defendants’ Rancho Cucamonga, California, store, where out of 12 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county.
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uu. Defendants’ Rossford, Ohio, store, where out of 12 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. vv. Defendants’ San Antonio, Texas, store, where out of 13 managers, not one was Black, compared to a representation rate of 5.5% Black managers in the county. 153. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Black managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 27 Black managers in 2009.
Defendants’ Discriminatory Failure to Hire Black Managers at Defendants’ Retail Stores in 2010 154. According to Defendants’ 2010 EEO-1 reports, out of a total employment of 8,839 employees in 52 retail stores, 586 (6.6%) employees were managers. 155. According to Defendants’ 2010 EEO-1 reports, out of 586 managers in Defendants’ 52 retail stores, only 12 (2%) were Black. 156. According to Defendants’ 2010 EEO-1 reports, 45 (86.5%) of Defendants’ 52 retail stores had a lower percentage of Black managers compared to the representation rate of Black managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 12 managers, not one was Black, compared to a representation rate of 1.3% Black managers in the county. b. Defendants’ Auburn, New York, store, where out of 10 managers, not one was Black, compared to a representation rate of .6% Black managers in the county.
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c. Defendants’ Auburn Hills, Michigan, store, where out of 11 managers, not one was Black, compared to a representation rate of 7.9% Black managers in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 10 managers, not one was Black, compared to a representation rate of 12% Black managers in the county. f. Defendants’ Branson, Missouri, store, where out of 10 managers, not one was Black, compared to a representation rate of .2% Black managers in the county. g. Defendants’ Broken Arrow, Oklahoma, store, where out of 12 managers, not one was Black, compared to a representation rate of 4.5 % Black managers in the county. h. Defendants’ Cincinnati, Ohio, store, where out of 11 managers, not one was Black, compared to a representation rate of 7.5% Black managers in the county. i. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Black, compared to a representation rate of 2.8% Black managers in the county.
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j. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Black, compared to a representation rate of 4.9% Black managers in the county. k. Defendants’ Concord, North Carolina, store, where out of 12 managers, not one was Black, compared to a representation rate of 4.2% Black managers in the county. l. Defendants’ Council Bluffs, Iowa, store, where out of 12 managers, not one was Black, compared to a representation rate of .4% Black managers in the county. m. Defendants’ Dania, Florida, store, where out of 13 managers, only one (7.7%) was Black, compared to a representation rate of 8.3% Black managers in the county. n. Defendants’ Denham Springs, Louisiana, store, where out of 12 managers, not one was Black, compared to a representation rate of 3.7% Black managers in the county. o. Defendants’ Destin, Florida, store, where out of 10 managers, not one was Black, compared to a representation rate of 5.3% Black managers in the county. p. Defendants’ Duluth, Georgia, store, where out of 12 managers, not one was Black, compared to a representation rate of 10.3% Black managers in the county. q. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Black, compared to a representation rate of 2.2% Black managers in the county.
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r. Defendants’ Ft. Myers, Florida, store, where out of 12 managers, not one was Black, compared to a representation rate of 1.3% Black managers in the county. s. Defendants’ Garland, Texas, store, where out of nine managers, not one was Black, compared to a representation rate of 9.3% Black managers in the county. t. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Black, compared to a representation rate of 4.1% Black managers in the county. u. Defendants’ Hampton, Virginia, store, where out of 10 managers, only two (20%) were Black, compared to a representation rate of 23% Black managers in the county. v. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county. w. Defendants’ Harrisburg, Pennsylvania, store, where out of 11 managers, not one was Black, compared to a representation rate of 5.8% Black managers in the county. x. Defendants’ Independence, Missouri, store, where out of 11 managers, only one (8.3%) was Black, compared to a representation rate of 9.1% Black managers in the county.
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y. Defendants’ Islamorada, Florida, store, where out of six managers, not one was Black, compared to a representation rate of 1.9% Black managers in the county. z. Defendants’ Katy, Texas, store, where out of ten managers, not one was Black, compared to a representation rate of 9.6% Black managers in the county. aa. Defendants’ Kodak, Tennessee, store, where out of 12 managers, not one was Black, compared to a representation rate of 1% Black managers in the county. bb. Defendants’ Las Vegas, Nevada, store, where out of 11 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. cc. Defendants’ Leeds, Alabama, store, where out of 12 managers only one (8.3%) was Black, compared to a representation rate of 15.3% Black managers in the county. dd. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Black, compared to a representation rate of 20.5% Black managers in the county. ee. Defendants’ Manteca, California, store, where out of 12 managers, not one was Black, compared to a representation rate of 2.7% Black managers in the county. ff. Defendants’ Memphis, Tennessee, store, where out of 11 managers, only one (7.7%) was Black, compared to a representation rate of 21.6% Black managers in the county.
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gg. Defendants’ Mesa, Arizona, store, where out of 11 managers, not one was Black, compared to a representation rate of 2.5% Black managers in the county. hh. Defendants’ Miami, Florida, store, where out of ten managers, not one was Black, compared to a representation rate of 8% Black managers in the county. ii. Defendants’ Myrtle Beach, South Carolina, store, where out of 11 managers, not one was Black, compared to a representation rate of 5% Black managers in the county. jj. Defendants’ Nashville, Tennessee, store, where out of 12 managers, not one was Black, compared to a representation rate of 8.8% Black managers in the county. kk. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 managers, not one was Black, compared to a representation rate of 6.1% Black managers in the county. ll. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was Black, compared to a representation rate of 3.6% Black managers in the county. mm. Defendants’ Orlando, Florida, store, where out of 13 managers, not one was Black, compared to a representation rate of 6.9% Black managers in the county. nn. Defendants’ Pearl, Mississippi, store, where out of 11 managers, only one (7.1%) was Black, compared to a representation rate of 10.5% Black managers in the county.
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oo. Defendants’ Pearland, Texas, store, where out of 11 managers, not one was Black, compared to a representation rate of 5.8% Black managers in the county. pp. Defendants’ Portage, Indiana, store, where out of 11 managers, not one was Black, compared to a representation rate of 2.1% Black managers in the county. qq. Defendants’ Prattville, Alabama, store, where out of ten managers, not one was Black, compared to a representation rate of 4.2% Black managers in the county. rr. Defendants’ Rancho Cucamonga, California, store, where out of 12 managers, not one was Black, compared to a representation rate of 5.1% Black managers in the county. ss. Defendants’ San Antonio, Texas, store, where out of 13 managers, not one was Black, compared to a representation rate of 5.5% Black managers in the county. 157. Comparing the number of Black managers employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of Black managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 25 Black managers in 2010. DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE BLACK SALES EMPLOYEES
Defendants’ Discriminatory Failure to Hire Black Sales Employees at Defendants’ Retail Stores in 2007 158. According to Defendants’ 2007 EEO-1 reports, out of a total employment of 8,186 employees in 43 retail stores, 5,997 (73.3%) employees were sales employees.
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159. According to the instructions for filing EEO-1 reports in the EEO-1 Job Classification Guide and the EEO-1 Instruction Booklet provided to employers, sales employees include such positions as retail salesperson, sales representative, cashier, and other sales-related workers.
160. According to Defendants’ 2007 EEO-1 reports, out of 5,997 sales employees in Defendants’ 43 retail stores, only 252 (4.2%) were Black.
161. According to Defendants’ 2007 EEO-1 reports, 38 (88.8%) of Defendants’ 43 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Auburn, New York, store, where out of 153 employees, 126 (82.4%) were sales employees, and of those 126 sales employees, not one was Black, compared to a representation rate of .6% Black sales employees in the county. b. Defendants’ Auburn Hills, Michigan, store, where out of 153 employees, 110 (71.9%) were sales employees, and out of those 110 sales employees, only two (1.8%) were Black, compared to a representation rate of 11.5% Black sales employees in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 195 employees, 150 (76.9%) were sales employees, and out of those 150 sales employees, only eight (5.3%) were Black, compared to a representation rate of 7.2% Black sales employees in the county.
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d. Defendants’ Bossier City, Louisiana, store, where out of 195 employees, 147 (75.6%) were sales employees, and out of those 147 sales employees, only 13 (8.8%) were Black, compared to a representation rate of 24.7% Black sales employees in the county. e. Defendants’ Branson, Missouri, store, where out of 109 employees, 83 (76.1%) were sales employees, and out of those 83 sales employees, not one was Black, compared to a representation rate of .1% Black sales employees in the county. f. Defendants’ Broken Arrow, Oklahoma, store, where out of 177 employees, 131 (74%) were sales employees, and out of those 131 sales employees, not one was Black, compared to a representation rate of 5.9% Black sales employees in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 229 employees, 183 (79.9%) were sales employees, and out of those 183 sales employees, only six (3.3%) were Black, compared to a representation rate of 10% Black sales employees in the county. h. Defendants’ Clarksville, Indiana, store, where out of 272 employees, 210 (77.2%) were sales employees, and out of those 210 sales employees in, only one (.5%) was Black, compared to a representation rate of 4.7% Black sales employees in the county. i. Defendants’ Columbia, Missouri, store, where out of 125 employees, 90 (72%) were sales employees, and out of those 90 sales employees, not one was
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Black, compared to a representation rate of 4.9% Black sales employees in the county. j. Defendants’ Concord, North Carolina, store, where out of 242 employees, 169 (69.8%) were sales employees, and out of those 169 sales employees, only five (3%) were Black, compared to a representation rate of 9.9% Black sales employees in the county. k. Defendants’ Council Bluffs, Iowa, store, where out of 177 employees, 130 (73.4%) were sales employees, and out of those 130 sales employees, not one was Black, compared to a representation rate of 1.3% Black sales employees in the county. l. Defendants’ Dania, Florida, store, where out of 255 employees, 181 (71%) were sales employees, and out of those 181 sales employees, only eight (4.4%) were Black, compared to a representation rate of 13.8% Black sales employees in the county. m. Defendants’ Denver, Colorado, store, where out of 241 employees, 180 (74.7%) were sales employees, and out of those 180 sales employees, only six (3.3%) were Black, compared to a representation rate of 5.4% Black sales employees in the county. n. Defendants’ Destin, Florida, store, where out of 108 employees, 79 (73.1%) were sales employees, and out of those 79 sales employees, only one (1.3%) was Black, compared to a representation rate of 5.6% Black sales employees in the county.
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o. Defendants’ Duluth, Georgia, store, where out of 208 employees, 153 (77.2%) were sales employees, and out of those 153 sales employees, only two (1.3%) were Black, compared to a representation rate of 12.5% Black sales employees in the county. p. Defendants’ Ft. Myers, Florida, store, where out of 190 employees, 136 (71.6%) were sales employees, and out of those 136 sales employees, only four (2.9%) were Black, compared to a representation rate of 3.8% Black sales employees in the county. q. Defendants’ Garland, Texas, store, where out of 139 employees, 103 (74%) were sales employees, and out of those 103 sales employees, not one was Black, compared to a representation rate of 11.6% Black sales employees in the county. r. Defendants’ Grapevine, Texas, store, where out of 300 employees, 148 (49.3%) were sales employees, and out of those 148 sales employees, only two (1.4%) were Black, compared to a representation rate of 8.2% Black sales employees in the county. s. Defendants’ Hampton, Virginia, store, where out of 164 employees, 126 (76.8%) were sales employees, and out of those 125 sales employees, only 18 (14.3%) were Black, compared to a representation rate of 41.4% Black sales employees in the county. t. Defendants’ Hanover, Maryland, store, where out of 172 employees, 128 (74.4%) were sales employees, and out of those 128 sales employees, only four
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(3.1%) were Black, compared to a representation rate of 10.6% Black sales employees in the county. u. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 employees, 171 (71.3%) were sales employees, and out of those 171 sales employees, store, only eight (4.7%) were Black, compared to a representation rate of 7.9% Black sales employees in the county. v. Defendants’ Katy, Texas, store, where out of 143 employees, 98 (68.5%) were sales employees, and out of those 98 sales employees, only one (1%) was Black, compared to a representation rate of 14.2% Black sales employees in the county. w. Defendants’ Las Vegas, Nevada, store, where out of 210 employees, 149 (71%) were sales employees, and out of those 149 sales employees, only three (2%) were Black, compared to a representation rate of 5.9% Black sales employees in the county. x. Defendants’ Macon, Georgia, store, where out of 156 employees, 120 (76.9%) were sales employees, and out of those 120 sales employees, only 24 (20%) were Black, compared to a representation rate of 26.7% Black sales employees in the county. y. Defendants’ Memphis, Tennessee, store, where out of 143 employees, 106 (74.1%) were sales employees, and out of those 106 sales employees, only four (3.8%) were Black, compared to a representation rate of 27.6% Black sales employees in the county.
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z. Defendants’ Mesa, Arizona, store, where out of 187 employees, 134 (71.7%) were sales employees, and out of those 134 sales employees in, only one (.7%) was Black, compared to a representation rate of 2.6% Black sales employees in the county. aa. Defendants’ Miami, Florida, store, where out of 220 employees, 168 (76.4%) were sales employees, and out of those 168 sales employees, only seven (4.2%) were Black, compared to a representation rate of 10.3% Black sales employees in the county. bb. Defendants’ Myrtle Beach, South Carolina, store, where out of 151 employees, 109 (72.2%) were sales employees, and out of those 109 sales employees, only ten (9.2%) were Black, compared to a representation rate of 10.3% Black sales employees in the county. cc. Defendants’ Nashville, Tennessee, store, where out of 200 employees, 139 (69.5%) were sales employees, and out of those 139 sales employees, only three (2.2%) were Black, compared to a representation rate of 12.1% Black sales employees in the county. dd. Defendants’ Oklahoma City, Oklahoma, store, where out of 155 employees, 118 (76.1%) were sales employees, and out of those 118 sales employees, only four (3.4%) were Black, compared to a representation rate of 8.4% Black sales employees in the county. ee. Defendants’ Olathe, Kansa, store, where out of 174 employees, 122 (70.1%) were sales employees, and out of those 122 sales employees in, only one
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(.8%) was Black, compared to a representation rate of 3.7% Black sales employees in the county. ff. Defendants’ Orlando, Florida, store, where out of 277 employees, 204 (73.6%) were sales employees, and out of those 204 sales employees, only ten (4.9%) were Black, compared to a representation rate of 9.6% Black sales employees in the county. gg. Defendants’ Pearl, Mississippi, store, where out of 164 employees, 108 (65.9%) were sales employees, and out of those 108 sales employees, only eight (7.4%) were Black, compared to a representation rate of 15.4% Black sales employees in the county. hh. Defendants’ Portage, Indiana, store, where out of 200 employees, 150 (75%) were sales employees, and out of those 150 sales employees, only two (1.3%) were Black, compared to a representation rate of 1.5% Black sales employees in the county. ii. Defendants’ Prattville, Alabama, store, where out of 193 employees, 137 (71%) were sales employees, and out of those 150 sales employees, only 13 (9.5%) were Black, compared to a representation rate of 10.4% Black sales employees in the county. jj. Defendants’ Rancho Cucamonga, California, store, where out of 305 employees, 236 (77.4%) were sales employees, and out of those 236 sales employees, store, only ten (4.2%) were Black, compared to a representation rate of 5.6% Black sales employees in the county.
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kk. Defendants’ San Antonio, Texas, store, where out of 197 employees, 145 (73.6%) were sales employees, and out of those 145 sales employees in, only one (.7%) was Black, compared to a representation rate of 5.2% Black sales employees in the county. ll. Defendants’ Savannah, Georgia, store, where out of 147 employees, 109 (74.1%) were sales employees, and out of those 145 sales employees, only 14 (12.8%) were Black, compared to a representation rate of 28.3% Black sales employees in the county. 162. Comparing the number of Black sales employees employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Black sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 311 Black sales employees in 2007.
Defendants’ Discriminatory Failure to Hire Black Sales Employees at Defendants’ Retail Stores in 2008 163. According to Defendants’ 2008 EEO-1 reports, out of a total employment of 8,410 employees in 49 retail stores, 6,214 (73.9%) employees were sales employees. 164. According to Defendants’ 2008 EEO-1 reports, out of 6,214 sales employees in Defendants’ 49 retail stores, only 271 (4.4%) were Black. 165. According to Defendants’ 2008 EEO-1 reports, 43 (87.8%) of Defendants’ 49 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
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a. Defendants’ Ashland, Virginia, store, where out of 171 employees, 136 (79.5%) were sales employees, and out of those 136 sales employees, only ten (7.4%) were Black, compared to a representation rate of 8.9% Black sales employees in the county. b. Defendants’ Auburn, New York, store, where out of 135 employees, 107 (79.3%) were sales employees, and out of those 107 sales employees, not one was Black, compared to a representation rate of .6% Black sales employees in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 148 employees, 108 (73%) were sales employees, and out of those 108 sales employees, only one (.9%) was Black, compared to a representation rate of 11.5% Black sales employees in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 177 employees, 137 (77.4%) were sales employees, and out of those 137 sales employees, only nine (6.6%) was Black, compared to a representation rate of 7.2% Black sales employees in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 171 employees, 132 (77.2%) were sales employees, and out of those 137 sales employees, only 11 (8.3%) were Black, compared to a representation rate of 24.7% Black sales employees in the county. f. Defendants’ Branson, Missouri, store, where out of 101 employees, 79 (78.2%) were sales employees, and out of those 79 sales employees, not one was
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Black, compared to a representation rate of .1% Black sales employees in the county. g. Defendants’ Broken Arrow, Oklahoma, store, where out of 212 employees, 165 (77.8%) were sales employees, and out of those 165 sales employees, not one was Black, compared to a representation rate of 5.9% Black sales employees in the county. h. Defendants’ Cincinnati, Ohio, store, where out of 222 employees, 179 (80.6%) were sales employees, and out of those 179 sales employees, only seven (3.9%) were Black, compared to a representation rate of 10% Black sales employees in the county. i. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 172 (68.4%) were sales employees, and out of those 172 sales employees, not one was Black, compared to a representation rate of 4.7% Black sales employees in the county. j. Defendants’ Columbia, Missouri, store, where out of 98 employees, 67 (68.4%) were sales employees, and out of those 67 sales employees, not one was Black, compared to a representation rate of 4.9% Black sales employees in the county. k. Defendants’ Concord, North Carolina, store, where out of 196 employees, 136 (69.4%) were sales employees, and out of those 136 sales employees, only five (3.7%) were Black, compared to a representation rate of 9.9% Black sales employees in the county.
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l. Defendants’ Council Bluffs, Iowa, store, where out of 165 employees, 123 (74.5%) were sales employees, and out of those 123 sales employees, only one (.8%) was Black, compared to a representation rate of 1.3% Black sales employees in the county. m. Defendants’ Dania, Florida, store, where out of 229 employees, 165 (72.1%) were sales employees, and out of those 165 sales employees, only eight (4.8%) were Black, compared to a representation rate of 13.8% Black sales employees in the county. n. Defendants’ Denham Springs, Louisiana, store, where out of 166 employees, 111 (66.9%) were sales employees, and out of those 111 sales employees, only four (3.6%) were Black, compared to a representation rate of 5.2% Black sales employees in the county. o. Defendants’ Denver, Colorado, store, where out of 198 employees, 145 (73.2%) were sales employees, and out of those 145 sales employees, only five (3.4%) were Black, compared to a representation rate of 5.4% Black sales employees in the county. p. Defendants’ Destin, Florida, store, where out of 99 employees, 73 (73.7%) were sales employees, and out of those 73 sales employees, only one (1.4%) was Black, compared to a representation rate of 5.6% Black sales employees in the county. q. Defendants’ Duluth, Georgia, store, where out of 193 employees, 144 (74.6%) were sales employees, and out of those 166 sales employees, only three
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(2.1%) were Black, compared to a representation rate of 12.5% Black sales employees in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 207 employees, 142 (68.6%) were sales employees, and out of those 142 sales employees, not one was Black, compared to a representation rate of 2.8% Black sales employees in the county. s. Defendants’ Ft. Myers, Florida, store, where out of 172 employees, 131 (73.8%) were sales employees, and out of those 131 sales employees, only two (1.5%) were Black, compared to a representation rate of 3.8% Black sales employees in the county. t. Defendants’ Garland, Texas, store, where out of 123 employees, 97 (78.9%) were sales employees, and out of those 97 sales employees, only one (1%) was Black, compared to a representation rate of 11.6% Black sales employees in the county. u. Defendants’ Grapevine, Texas, store, where out of 291 employees, 147 (50.5%) were sales employees, and out of those 147 sales employees, only one (.7%) was Black, compared to a representation rate of 8.2% Black sales employees in the county. v. Defendants’ Gurnee, Illinois, store, where out of 175 employees, 139 (79.4%) were sales employees, and out of those 139 sales employees, only five (3.6%) were Black, compared to a representation rate of 4.5% Black sales employees in the county.
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w. Defendants’ Hampton, Virginia, store, where out of 165 employees, 127 (77%) were sales employees, and out of those 139 sales employees, only 24 (18.9%) were Black, compared to a representation rate of 41.4% Black sales employees in the county. x. Defendants’ Hanover, Maryland, store, where out of 221 employees, 175 (79.2%) were sales employees, and out of those 139 sales employees, only 13 (7.4%) were Black, compared to a representation rate of 10.6% Black sales employees in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 employees, 168 (71.8%) were sales employees, and out of those 168 sales employees, only seven (4.2%) were Black, compared to a representation rate of 7.9% Black sales employees in the county. z. Defendants’ Independence, Missouri, store, where out of 166 employees, 125 (75.3%) were sales employees, and out of those 125 sales employees, only one (.8%) was Black, compared to a representation rate of 10.7% Black sales employees in the county. aa. Defendants’ Katy, Texas, store, where out of 129 employees, 95 (73.6%) were sales employees, and out of those 95 sales employees, only three (3.2%) were Black, compared to a representation rate of 14.2% Black sales employees in the county. bb. Defendants’ Las Vegas, Nevada, store, where out of 195 employees, 144 (73.8%) were sales employees, and out of those 144 sales employees, only two
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(1.4%) were Black, compared to a representation rate of 5.9% Black sales employees in the county. cc. Defendants’ Macon, Georgia, store, where out of 158 employees, 125 (79.1%) were sales employees, and out of those 144 sales employees, only 18 (14.4%) were Black, compared to a representation rate of 26.7% Black sales employees in the county. dd. Defendants’ Memphis, Tennessee, store, where out of 125 employees, 93 (74.4%) were sales employees, and out of those 144 sales employees, only seven (7.5%) were Black, compared to a representation rate of 27.6% Black sales employees in the county. ee. Defendants’ Mesa, Arizona, store, where out of 154 employees, 115 (74.7%) were sales employees, and out of those 115 sales employees, only two (1.7%) were Black, compared to a representation rate of 2.6% Black sales employees in the county. ff. Defendants’ Miami, Florida, store, where out of 119 employees, 81 (68.1%) were sales employees, and out of those 81 sales employees, not one was Black, compared to a representation rate of 10.3% Black sales employees in the county. gg. Defendants’ Nashville, Tennessee, store, where out of 196 employees, 138 (70.4%) were sales employees, and out of those 138 sales employees, only two (1.4%) were Black, compared to a representation rate of 12.1% Black sales employees in the county.
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hh. Defendants’ Oklahoma City, Oklahoma, store, where out of 130 employees, 98 (75.4%) were sales employees, and out of those 98 sales employees, only six (6.1%) were Black, compared to a representation rate of 8.4% Black sales employees in the county. ii. Defendants’ Olathe, Kansas, store, where out of 156 employees, 114 (73.1%) were sales employees, and out of those 114 sales employees, only two (1.8%) were Black, compared to a representation rate of 3.7% Black sales employees in the county. jj. Defendants’ Orlando, Florida, store, where out of 224 employees, 166 (74.1%) were sales employees, and out of those 166 sales employees, only ten (6%) were Black, compared to a representation rate of 9.6% Black sales employees in the county. kk. Defendants’ Pearl, Mississippi, store, where out of 153 employees, 108 (70.6%) were sales employees, and out of those 108 sales employees, only nine (8.3%) were Black, compared to a representation rate of 15.4% Black sales employees in the county. ll. Defendants’ Portage, Indiana, store, where out of 157 employees, 117 (74.5%) were sales employees, and out of those 117 sales employees, only one (.9%) was Black, compared to a representation rate of 1.5% Black sales employees in the county. mm. Defendants’ Prattville, Alabama, store, where out of 187 employees, 135 (72.2%) were sales employees, and out of those 135 sales employees, only eight
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(5.9%) were Black, compared to a representation rate of 10.4% Black sales employees in the county. nn. Defendants’ Rancho Cucamonga, California, store, where out of 260 employees, 201 (77.3%) were sales employees, and out of those 201 sales employees, only eight (4%) were Black, compared to a representation rate of 5.6% Black sales employees in the county. oo. Defendants’ Rossford, Ohio, store, where out of 216 employees, 166 (76.7%) were sales employees, and out those 166 sales employees, only three (1.8%) were Black, compared to a representation rate of 1.9% Black sales employees in the county. pp. Defendants’ San Antonio, Texas, store, where out of 179 employees, 134 (74.9%) were sales employees, and out of those 134 sales employees, not one was Black, compared to a representation rate of 5.2% Black sales employees in the county. qq. Defendants’ Savannah, Georgia, store, where out of 118 employees, 84 (71.2%) were sales employees, and out of those 84 sales employees, only 18 (21.4%) were Black, compared to a representation rate of 28.3% Black sales employees in the county. 166. Comparing the number of Black sales employees employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Black sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 294 Black sales employees in 2008.
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Defendants’ Discriminatory Failure to Hire Black Sales Employees at Defendants’ Retail Stores in 2009 167. According to Defendants’ 2009 EEO-1 reports, out of a total employment of 8,561 employees in 52 retail stores, 6,496 (75.9%) employees were sales employees. 168. According to Defendants’ 2009 EEO-1 reports, out of 6,496 sales employees in Defendants’ 52 retail stores, only 266 (4.1%) were Black. 169. According to Defendants’ 2009 EEO-1 reports, 44 (84.6%) of Defendants’ 52 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 208 employees, 165 (79.3%) were sales employees, and out those 165 sales employees, only one (.6%) was Black, compared to a representation rate of 2.3% Black sales employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 202 employees, 161 (79.7%) were sales employees, and out of those 136 sales employees in, only ten (6.2%) were Black, compared to a representation rate of 8.9% Black sales employees in the county. c. Defendants’ Auburn, New York, store, where out of 144 employees, 116 (80.6%) were sales employees, and out of those 116 sales employees, not one was Black, compared to a representation rate of .6% Black sales employees in the county. d. Defendants’ Auburn Hills, Michigan, store, where out of 137 employees, 102 (74.5%) were sales employees, and out of those 102 sales employees, only
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one (1%) was Black, compared to a representation rate of 11.5% Black sales employees in the county. e. Defendants’ Bolingbrook, Illinois, store, where out of 168 employee, 137 (80.7%) were sales employees, and out of those 137 sales employees, only six (4.4%) were Black, compared to a representation rate of 7.2% Black sales employees in the county. f. Defendants’ Bossier City, Louisiana, store, where out of 166 employees, 130 (78.3%) were sales employees, and out of those 130 sales employees, only 12 (9.2%) were Black, compared to a representation rate of 24.7% Black sales employees in the county. g. Defendants’ Branson, Missouri, store, where out of 97 employees, 79 (81.4%) were sales employees, and of those 79 sales employees, not one was Black, compared to a representation rate of .1% Black sales employees in the county. h. Defendants’ Broken Arrow, Oklahoma, store, where out of 210 employees, 152 (72.4%) were sales employees, and out of those 152 sales employees, only one (.7%) was Black, compared to a representation rate of 5.9% Black sales employees in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 220 employees, 186 (84.5%) were sales employees, and out of those 186 sales employees, only five (2.7%) were Black, compared to a representation rate of 10% Black sales employees in the county.
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j. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 173 (77.6%) were sales employees, and out of those 173 sales employees, not one was Black, compared to a representation rate of 4.7% Black sales employees in the county. k. Defendants’ Columbia, Missouri, store, where out of 74 employees, 50 (67.6%) were sales employees, and out of those 50 sales employees, not one was Black, compared to a representation rate of 4.9% Black sales employees in the county. l. Defendants’ Concord, North Carolina, store, where out of 189 employees, 143 (75.7 %) were sales employees, and out of those 143 sales employees, only eight (5.6%) were Black, compared to a representation rate of 9.9% Black sales employees in the county. m. Defendants’ Council Bluffs, Iowa, store, where out of 172 employees, 124 (72.1%) were sales employees, and of those 124 sales employees, not one was Black, compared to a representation rate of 1.3% Black sales employees in the county. n. Defendants’ Dania, Florida, store, where out of 233 employees, 177 (76%) were sales employees, and out of those 177 sales employees, only six (3.4%) were Black, compared to a representation rate of 13.8% Black sales employees in the county. o. Defendants’ Denham Springs, Louisiana, store, where out of 160 employees, 118 (73.8%) were sales employees, and out of those 118 sales
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employees, only one (.8%) was Black, compared to a representation rate of 5.2% Black sales employees in the county. p. Defendants’ Denver, Colorado, store, where out of 216 employees, 167 (77.3%) were sales employees, and out of those 167 sales employees, only six (3.6%) were Black, compared to a representation rate of 5.4% Black sales employees in the county. q. Defendants’ Destin, Florida, store, where out of 100 employees, 75 (75%) were sales employees, and out of those 75 sales employees, only one (1.3%) was Black, compared to a representation rate of 5.6% Black sales employees in the county. r. Defendants’ Duluth, Georgia, store, where out of 182 employees, 138 (75.8%) were sales employees, and out of those 138 sales employees, only one (.7%) was Black, compared to a representation rate of 12.5% Black sales employees in the county. s. Defendants’ Foxborough, Massachusetts, store, where out of 188 employees, 129 (68.6%) were sales employees, and out of those 129 sales employees, only one (.8%) was Black, compared to a representation rate of 2.8% Black sales employees in the county. t. Defendants’ Ft. Myers, Florida, store, where out of 161 employees, 123 (76.4%) were sales employees, and out of those 123 sales employees, only one (.8%) was Black, compared to a representation rate of 3.8% Black sales employees in the county.
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u. Defendants’ Garland, Texas, store, where out of 115 employees, 93 (80.7%) were sales employees, and out of those 93 sales employees, only two (2.2%) were Black, compared to a representation rate of 11.6% Black sales employees in the county. v. Defendants’ Grapevine, Texas, store, where out of 242 employees, 137 (56.6%) were sales employees, and out of those 137 sales employees, only two (1.5%) were Black, compared to a representation rate of 8.2% Black sales employees in the county. w. Defendants’ Gurnee, Illinois, store, where out of 144 employees, 112 (77.8%) were sales employees, and out of those 112 sales employees, only three (2.7%) were Black, compared to a representation rate of 4.5% Black sales employees in the county. x. Defendants’ Hampton, Virginia, store, where out of 145 employees, 118 (81.4%) were sales employees, and out of those 118 sales employees, only 26 (22%) were Black, compared to a representation rate of 41.4% Black sales employees in the county. y. Defendants’ Hanover, Maryland, store, where out of 214 employees, 180 (84.1%) were sales employees, and out of those 180 sales employees, only seven (3.9%) were Black, compared to a representation rate of 10.6% Black sales employees in the county. z. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 employees, 144 (73.5%) were sales employees, and out of those 144 sales employees, only
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four (2.8%) were Black, compared to a representation rate of 7.9% Black sales employees in the county. aa. Defendants’ Independence, Missouri, store, where out of 149 employees, 111 (74.5%) were sales employees, and out of those 111 sales employees, not one was Black, compared to a representation rate of 10.7% Black sales employees in the county. bb. Defendants’ Katy, Texas, store, where out of 125 employees, 98 (78.4%) were sales employees, and out of those 98 sales employees, only five (5.1%) were Black, compared to a representation rate of 14.2% Black sales employees in the county. cc. Defendants’ Las Vegas, Nevada, store, where out of 164 employees, 122 (74.4%) were sales employees, and out of those 122 sales employees, only three (2.5%) were Black, compared to a representation rate of 5.9% Black sales employees in the county. dd. Defendants’ Leeds, Alabama, store, where out of 218 employees, 171 (78.4%) were sales employees, and out of those 171 sales employees, only eight (4.7%) were Black, compared to a representation rate of 21.5% Black sales employees in the county. ee. Defendants’ Macon, Georgia, store, where out of 137 employees, 103 (75.2%) were sales employees, and out of those 103 sales employees, only 18 (17.5%) were Black, compared to a representation rate of 26.7% Black sales employees in the county.
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ff. Defendants’ Memphis, Tennessee, store, where out of 131 employees, 100 (76.3%) were sales employees, and out of those 100 sales employees, only six (6%) were Black, compared to a representation rate of 27.6% Black sales employees in the county. gg. Defendants’ Miami, Florida, store, where out of 112 employees, 80 (71.4%) were sales employees, and out of those 80 sales employees, only one (1.3%) was Black, compared to a representation rate of 10.3% Black sales employees in the county. hh. Defendants’ Myrtle Beach, South Carolina, store, where out of 131 employees, 99 (75.6%) were sales employees, and out of those 99 sales employees, only seven (7.1%) were Black, compared to a representation rate of 10.3% Black sales employees in the county. ii. Defendants’ Nashville, Tennessee, store, where out of 181 employees, 135 (74.6%) were sales employees, and out of those 135 sales employees, only one (.7%) was Black, compared to a representation rate of 12.1% Black sales employees in the county. jj. Defendants’ Oklahoma City, Oklahoma, store, where out of 146 employees, 113 (77.4%) were sales employees, and out of those 113 sales employees, only four (3.5%) were Black, compared to a representation rate of 8.4% Black sales employees in the county. kk. Defendants’ Olathe, Kansas, store, where out of 128 employees, 97 (75.8%) were sales employees, and out of those 97 sales employees, only three
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(3.1%) were Black, compared to a representation rate of 3.7% Black sales employees in the county. ll. Defendants’ Orlando, Florida, store, where out of 214 employees, 161 (75.2%) were sales employees, and out of those 161 sales employees, only 12 (7.5%) were Black, compared to a representation rate of 9.6% Black sales employees in the county. mm. Defendants’ Pearl, Mississippi, store, where out of 159 employees, 105 (66%) were sales employees, and out of those 105 sales employees, only ten (9.5%) were Black, compared to a representation rate of 15.4% Black sales employees in the county. nn. Defendants’ Prattville, Alabama, store, where out of 148 employees, 106 (71.6%) were sales employees, and out of those 106 sales employees, only six (5.7%) were Black, compared to a representation rate of 10.4% Black sales employees in the county. oo. Defendants’ Rossford, Ohio, store, where out of 167 employees, 126 (75.4%) were sales employees, and out of those 126 sales employees, only one (.8%) was Black, compared to a representation rate of 1.9% Black sales employees in the county. pp. Defendants’ San Antonio, Texas, store, where out of 154 employees, 118 (76.6%) were sales employees, and out of those 118 sales employees, only one (.8%) was Black, compared to a representation rate of 5.2% Black sales employees in the county.
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qq. Defendants’ Savannah, Georgia, store, where out of 117 employees, 85 (72.6%) were sales employees, and out of those 85 sales employees, only 17 (20%) were Black, compared to a representation rate of 28.3% Black sales employees in the county. rr. Defendants’ Spanish Fort, Alabama, store, where out of 177 employees, 145 (81.9%) were sales employees, and out of those 145 sales employees, only nine (6.2%) were Black, compared to a representation rate of 7% Black sales employees in the county. 170. Comparing the number of Black sales employees employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Black sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 329 Black sales employees in 2009.
Defendants’ Discriminatory Failure to Hire Black Sales Employees at Defendants’ Retail Stores in 2010 171. According to Defendants’ 2010 EEO-1 reports, out of a total employment of 8,839 employees in 52 retail stores, 6,820 (77.2%) employees were sales employees. 172. According to Defendants’ 2010 EEO-1 reports, out of 6,820 sales employees in Defendants’ 52 retail stores, only 298 (4.4%) were Black. 173. According to Defendants’ 2010 EEO-1 reports, 45 (86.5%) of Defendants’ 52 retail stores had a lower percentage of Black sales employees compared to the representation rate of Black sales employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
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a. Defendants’ Altoona, Iowa, store, where out of 189 employees, 141 (74.6%) were sales employees and of those 141 sales employees, not one was Black, compared to a representation rate of 2.3% Black sales employees in the county. b. Defendants’ Auburn, New York, store, where out of 139 employees, 115 (82.7%) were sales employees, and of those 115 sales employees, not one was Black, compared to a representation rate of .6% Black sales employees in the county. c. Defendants’ Auburn Hills, Michigan, store, where out of 156 employees, 118 (75.6%) were sales employees, and out those 118 sales employees, only one (.8%) was Black, compared to a representation rate of 11.5 % Black sales employees in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 170 employee, 136 (80%) were sales employees, and out of those 136 sales employees, only eight (5.9%) were Black, compared to a representation rate of 7.2% Black sales employees in the county. e. Defendants’ Bossier City, Louisiana, store, where out of 173 employees, 140 (80.9%) were sales employees, and out of those 140 sales employees, only 12 (8.6%) were Black, compared to a representation rate of 24.7% Black sales employees in the county. f. Defendants’ Branson, Missouri, store, where out of 105 employees, 86 (81.9%) were sales employees, and of those 86 sales employees, not one was
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Black, compared to a representation rate of .1% Black sales employees in the county. g. Defendants’ Broken Arrow, Oklahoma, store, where out of 215 employees, 167 (77.7%) were sales employees, and out of those 167 sales employees, only two (1.2%) were Black, compared to a representation rate of 5.9% Black sales employees in the county. h. Defendants’ Cincinnati, Ohio, store, where out of 208 employees, 175 (84.1%) were sales employees, and out of those 175 sales employees, only seven (4%) were Black, compared to a representation rate of 10% Black sales employees in the county. i. Defendants’ Clarksville, Indiana, store, where out of 234 employees, 184 (78.6%) were sales employees, and of those 184 sales employees, not one was Black, compared to a representation rate of 4.7% Black sales employees in the county. j. Defendants’ Columbia, Missouri, store, where out of 98 employees, 71 (72.4%) were sales employees, and out of those 71 sales employees, only two (2.8%) were Black, compared to a representation rate of 4.9% Black sales employees in the county. k. Defendants’ Concord, North Carolina, store, where out of 203 employees, 158 (77.8 %) were sales employees, and out of those 158 sales employees, only nine (5.7%) were Black, compared to a representation rate of 9.9% Black sales employees in the county.
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l. Defendants’ Council Bluffs, Iowa, store, where out of 190 employees, 143 (75.3%) were sales employees, and of those 143 sales employees, not one was Black, compared to a representation rate of 1.3% Black sales employees in the county. m. Defendants’ Dania, Florida, store, where out of 227 employees, 173 (76.2%) were sales employees, and out of those 173 sales employees, only six (3.5%) were Black, compared to a representation rate of 13.8% Black sales employees in the county. n. Defendants’ Denham Springs, Louisiana, store, where out of 163 employees, 118 (72.4%) were sales employees, and out of those 118 sales employees, only two (1.7%) were Black, compared to a representation rate of 5.2% Black sales employees in the county. o. Defendants’ Denver, Colorado, store, where out of 206 employees, 159 (77.2%) were sales employees, and out of those 159 sales employees, only six (3.8%) were Black, compared to a representation rate of 5.4% Black sales employees in the county. p. Defendants’ Destin, Florida, store, where out of 106 employees, 82 (77.4%) were sales employees, and out of those 82 sales employees, only one (1.2%) was Black, compared to a representation rate of 5.6% Black sales employees in the county. q. Defendants’ Duluth, Georgia, store, where out of 183 employees, 141 (77%) were sales employees, and out of those 141 sales employees, only three
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(2.1%) were Black, compared to a representation rate of 12.5% Black sales employees in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 190 employees, 130 (68.4%) were sales employees, and out those 130 sales employees, only one (.8%) was Black, compared to a representation rate of 2.8% Black sales employees in the county. s. Defendants’ Ft. Myers, Florida, store, where out of 157 employees, 120 (76.4%) were sales employees, and out of those 120 sales employees, only two (1.7%) were Black, compared to a representation rate of 3.8% Black sales employees in the county. t. Defendants’ Garland, Texas, store, where out of 134 employees, 106 (79.1%) were sales employees, and out of those 106 sales employees, only three (2.8%) were Black, compared to a representation rate of 11.6% Black sales employees in the county. u. Defendants’ Grapevine, Texas, store, where out of 290 employees, 191 (65.9%) were sales employees, and out of those 191 sales employees, only four (2.1%) were Black, compared to a representation rate of 8.2% Black sales employees in the county. v. Defendants’ Gurnee, Illinois, store, where out of 159 employees, 129 (81.1%) were sales employees, and out of those 129 sales employees, only three (2.3%) were Black, compared to a representation rate of 4.5% Black sales employees in the county.
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w. Defendants’ Hampton, Virginia, store, where out of 155 employees, 123 (79.4%) were sales employees, and out of those 123 sales employees, only 27 (22%) were Black, compared to a representation rate of 41.4% Black sales employees in the county. x. Defendants’ Hanover, Maryland, store, where out of 225 employees, 191 (84.9%) were sales employees, and out of those 191 sales employees, only eight (4.2%) were Black, compared to a representation rate of 10.6% Black sales employees in the county. y. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 employees, 147 (72.4%) were sales employees, and out of those 147 sales employees, only five (3.4%) were Black, compared to a representation rate of 7.9% Black sales employees in the county. z. Defendants’ Independence, Missouri, store, where out of 152 employees, 122 (79.7%) were sales employees, and of those 122 sales employees, not one was Black, compared to a representation rate of 10.7% Black sales employees in the county. aa. Defendants’ Islamorada, Florida, store, where out of 57 employees, 46 (80.7%) were sales employees, and of those 46 sales employees, only one (2.2%) was Black, compared to a representation rate of 4.5% Black sales employees in the county. bb. Defendants’ Katy, Texas, store, where out of 120 employees, 92 (76.7%) were sales employees, and out of those 92 sales employees, only three (3.3%)
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were Black, compared to a representation rate of 14.2% Black sales employees in the county. cc. Defendants’ Las Vegas, Nevada, store, where out of 155 employees, 113 (72.9%) were sales employees, and out of those 113 sales employees, only three (2.7%) were Black, compared to a representation rate of 5.9% Black sales employees in the county. dd. Defendants’ Leeds, Alabama, store, where out of 182 employees, 145 (79.7%) were sales employees, and out of those 145 sales employees, only eight (5.5%) were Black, compared to a representation rate of 21.5% Black sales employees in the county. ee. Defendants’ Macon, Georgia, store, where out of 155 employees, 127 (81.9%) were sales employees, and out of those 127 sales employees, only 28 (22%) were Black, compared to a representation rate of 26.7% Black sales employees in the county. ff. Defendants’ Manteca, California, where out of 225 employees, 179 (79.6%) were sales employees, and out of those 179 sales employees, only four (2.2%) were Black, compared to a representation rate of 4% Black sales employees in the county. gg. Defendants’ Memphis, Tennessee, store, where out of 136 employees, 105 (77.2%) were sales employees, and out of those 105 sales employees, only six (5.7%) were Black, compared to a representation rate of 27.6% Black sales employees in the county.
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hh. Defendants’ Mesa, Arizona, store, where out of 154 employees, 118 (76.6%) were sales employees, and out of those 118 sales employees, only two (1.7%) were Black, compared to a representation rate of 2.6% Black sales employees in the county. ii. Defendants’ Miami, Florida, store, where out of 124 employees, 91 (73.4%) were sales employees, and out of those 91 sales employees, only one (1.1%) was Black, compared to a representation rate of 10.3% Black sales employees in the county. jj. Defendants’ Nashville, Tennessee, store, where out of 180 employees, 138 (76.7%) were sales employees, and out those 138 sales employees, only one (.7%) was Black, compared to a representation rate of 12.1% Black sales employees in the county. kk. Defendants’ Oklahoma City, Oklahoma, store, where out of 152 employees, 114 (75%) were sales employees, and out of those 114 sales employees, only two (1.8%) were Black, compared to a representation rate of 8.4% Black sales employees in the county. ll. Defendants’ Olathe, Kansas, store, where out of 134 employees, 101 (75.4%) were sales employees, and out of those 101 sales employees, only three (3%) were Black, compared to a representation rate of 3.7% Black sales employees in the county. mm. Defendants’ Orlando, Florida, store, where out of 205 employees, 155 (75.6%) were sales employees, and out of those 155 sales employees, only 11
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(7.1%) were Black, compared to a representation rate of 9.6% Black sales employees in the county. nn. Defendants’ Pearl, Mississippi, store, where out of 149 employees, 96 (64.4%) were sales employees, and out of those 96 sales employees, only seven (7.3%) were Black, compared to a representation rate of 15.4% Black sales employees in the county. oo. Defendants’ Prattville, Alabama, store, where out of 130 employees, 95 (73.1%) were sales employees, and out of those 95 sales employees, only seven (7.4%) were Black, compared to a representation rate of 10.4% Black sales employees in the county. pp. Defendants’ Rossford, Ohio, store, where out of 167 employees, 125 (74.9%) were sales employees, and out those 125 sales employees, only one (.8%) was Black, compared to a representation rate of 1.9% Black sales employees in the county. qq. Defendants’ San Antonio, Texas, store, where out of 192 employees, 149 (77.6%) were sales employees, and out those 149 sales employees, only one (.7%) was Black, compared to a representation rate of 5.2% Black sales employees in the county. rr. Defendants’ Savannah, Georgia, store, where out of 113 employees, 84 (74.3%) were sales employees, and out of those 84 sales employees, only 18 (21.4%) were Black, compared to a representation rate of 28.3% Black sales employees in the county.
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ss. Defendants’ Spanish Fort, Alabama, store, where out of 192 employees, 157 (81.8%) were sales employees, and out of those 157 sales employees, only nine (5.7%) were Black, compared to a representation rate of 7% Black sales employees in the county. 174. Comparing the number of Black sales employees employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of Black sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 321 Black sales employees in 2010.
DEFENDANTS HAVE DENIED EMPLOYMENT TO BLACK APPLICANTS AT STORES NATIONWIDE 175. Plaintiff re-alleges and incorporates by reference paragraphs 1 to174 above as if set forth fully herein. 176. As discussed in paragraphs 177 to 359 below, Defendants have denied employment to at least hundreds of individual Black applicants based on their race including, but not limited to, the individuals listed below, and all persons in like or related circumstances. The individuals were denied employment based on their race at numerous of Defendants’ stores and from 2005 or earlier to the present. 177. Dominique Terry is Black. He had almost ten years of retail experience and fishing experience when he applied in person at the Hampton, Virginia store in 2009. While at the store waiting for an interview, an employee approached him and stated “niggers aren’t allowed to work here.” Terry also applied at the Gurnee, Illinois, store in 2010 and was told by a Human Resources employee that they would get back to him. Defendants never hired Terry.
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178. Tristan Moore is Black. Moore had experience as an assistant manager at WalMart and at a portrait studio, in addition to hunting, fishing, and camping experience when he applied to the Katy, Texas store around November 2006 after seeing a “help wanted” sign in the window. After submitting his application, Moore followed up in person at the store. An employee told him that his application would remain in Defendants’ system for a few months and that they would call him if they needed him. Despite the “help wanted” sign remaining in the store window after he applied, Defendants never contacted or hired Moore. He applied again at the Katy store around June 2007 by submitting his application to a manager who told him he would review it and call him for an interview. Moore was never contacted or hired by Defendants. Moore had previously applied at the Katy store in 2002, also after seeing a “help wanted” sign in the store window. When he submitted his application then, the Store Human Resources Manager told him that someone would call Moore if he was needed. Moore did not receive a call back from Defendants at that time either.
179. Byron Keels is Black. He has been a supervisor for 15 years at his current job, and had 20 years of boating experience and 50 years of fishing experience when he applied at the Manteca, California store around the time it opened in the fall of 2008. Keels was interviewed on the spot at a job fair, and was told that someone would be in touch with him about his application. Keels was never contacted or hired by Defendants.
180. Norris Pete is Black. Pete had a business management degree, and had worked in retail throughout college and high school. He is also an avid fisherman. In early 2010, Pete applied for a job at the Pearland, Texas store after an employee told him that the store was hiring. He followed up on his application twice while shopping at the store and was told that all
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positions had been filled. However, another employee told him at the time that the store was still hiring. Defendants never hired Pete.
181. Victor Harvey is Black. Harvey applied at the Macon, Georgia store around December 2006. His job application with Defendants listed stocking experience at Kohl’s and Piggly Wiggly, as well as hunting and fishing experience. He was called to take a “work-ready” test and he scored well. Defendants performed a background check on Harvey, which he was informed came out clear. Despite his subsequent calls and in-person visits to follow up on his application, and despite his having seemingly cleared all pre-employment hurdles, Harvey was not offered a job by Defendants.
182. Tekarra Jordan is Black. Jordan had cashier experience with three different employers when she applied at the Savannah, Georgia store multiple times, including in November 2006. She applied at the same time as a White friend, Brittney Williams. Defendants offered a job to Williams, but never interviewed or hired Jordan.
183. Vanessa Burton is Black. She had many years experience working in customer service. Additionally, she owned a boat, and did a lot of boating, fishing, hunting, and golfing. In late 2009, Burton applied to the Pearland, Texas store. Defendants did not hire her.
184. Kenn Bradshaw is Black. Bradshaw applied to the Concord, North Carolina store around 2008 after seeing a hiring sign in the store window. Bradshaw followed up on his application in person by asking to speak to a manager. An employee told him that all the positions at the store had been filled and they were not hiring anymore. When Bradshaw left the store that day, he noticed that the hiring sign was still in the window. Defendants never hired Bradshaw.
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185. William Hudgins is Black. Hudgins had a college degree and many years of retail experience when he applied to the Katy, Texas store in late 2009 after seeing a hiring sign in the window of the store. He also has extensive knowledge about guns. Defendants did not hire Hudgins.
186. Marty Blame is Black. Blame had several years of human resources experience with a major corporation when he applied twice in 2011 for a Store Human Resources Manager position at the Prattville, Alabama store. Defendants did interview or hire Blame.
187. John Kenneth Harris is Black. He applied twice at Defendants’ Katy, Texas store. He served four years in the United States Army. On an application submitted in March 2005, Harris listed his over 20 years of experience in deer hunting, small game hunting, and bass fishing, as well as 12 years of salt water fishing experience. Harris frequently shopped at the Katy store and had never seen a Black employee there. Defendants never hired Harris.
188. Mary Barnett is Black. She applied to the Grapevine, Texas store in April 2005. On her job application, Barnett listed her previous cashier and sales associate experience with multiple retailers, as well as her certification to operate a forklift. Defendants interviewed Barnett. When she followed up on her application, she was told that she was not sufficiently qualified for a job with Defendants.
189. Talejah Arrington is Black. She applied for a position at the Savannah, Georgia, store in January 2005. Defendants did not hire Arrington.
190. Yolanda Allen is Black. She applied at the Bossier City, Louisiana store in December 2006. On her application, she listed five years of experience at Wal-Mart, which included customer service, sales, greeting, and stocking. She also listed her hunting, fishing, and boating experience. She attempted to follow up on her application by going to the store, but no
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one would speak to her about her application. On later trips to the store, Allen saw that new, White employees had been hired. Defendants did not hire Allen.
191. Nikaye Donastorg is Black. She had experience working as an executive assistant, accounts receivable manager, and a unit secretary when she applied for an Administrative Assistant position at the Orlando, Florida store in January 2008. She listed experience in several outdoor activities on her application. During her interview, the interviewer commented that she had thought Donastorg was French and told Donastorg that she was sorry she had called her in because they typically hire from within the store. At the time, Donastorg saw that there were other people waiting to be interviewed. Donastorg saw only one Black employee at the store. Defendants did not hire Donastorg.
192. Audrieta Edwards is Black. She had retail experience as a sales associate and stocker at Gymboree, Target, and Children’s Place when she applied to the Orlando, Florida store in July 2008. She also had fishing experience. Edwards heard from an employee that the store was hiring for stocker positions, but she was told by a Human Resources employee that the store was not hiring when she turned in her application. The same employee also told her the store was “prejudiced” because Blacks were not hired to work on the sales floor where customers might see them, although some were placed in stocking positions at the back of the store. Defendants did not hire Edwards.
193. Terry Donner is Black. He applied multiple times to both the Columbia, Missouri store and the Springfield, Missouri store, around 2007 and 2008. He is the Human Resources Director for his current employer, and was seeking either Human Resources or distribution positions with Defendants. Despite his approximately 30 years of hunting and fishing experience, he has never even received a call-back from Defendants after any of his applications.
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When he applied on-line, he listed his race as Black in response to the voluntary EEO information questions. Defendants never hired Donner.
194. Tamela Bellamy is Black. She applied to the Katy, Texas store in June 2005. Bellamy was not hired by Defendants.
195. Suran Banargent is Black. He applied to the Savannah, Georgia in March 2006. Banargent was not hired by Defendants.
196. Fletcher Batts is Black. Batts had visual managerial experience and other supervisory experience in retail when he applied online in December 2005 for a Visual Manager position at the Macon, Georgia location. In January 2006, Batts was interviewed by a Human Resources Manager and a department manager. He was not hired by Defendants.
197. Lige Brisby is Black. He applied twice at the Independence, Missouri store around 2007. He was not contacted or hired by Defendants. In 2010, after relocating to the Houston area, he spoke with a manager at the Pearland, Texas store concerning potential employment, but the manager failed to follow up and provide him with information about available jobs. Defendants did not hire Brisby.
198. LaTonya Anderson is Black. She applied to the Pearl, Mississippi store in late 2007. She completed a written application at the store, and submitted it to an employee. She also completed a second application around the same time, which she gave to an employee at the store. Although Anderson had retail experience and was able to work a flexible schedule, she was never contacted or hired by Defendants. Anderson noticed that the vast majority of employees at the store were White.
199. Thomas Davis is Black. Around January 2006, he applied to the Savannah, Georgia store after being directed there by the local state unemployment office. While applying
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directly at the store, Davis perceived that he was treated in a demeaning fashion. For example, Davis was made to wait two hours before being provided with an application by an employee. During this time, Davis observed that unlike other nearby retail stores with which he was familiar, Defendants’ workforce was predominately White. After submitting his application to Defendants’ representative, Davis was given an Orion test, which he completed on-site. Defendants’ never provided Davis with the results of the test, nor was he contacted for an interview. Davis submitted a second application to the Savannah store between the spring of 2006 and the fall of 2007. He received no response to that application as well. Defendants never hired Davis.
200. Sandra Brown is Black. She applied for a job at the Savannah, Georgia store in about the fall of 2005 and again around February 2006. Defendants never contacted Brown regarding her 2005 application. Following her 2006 application, Brown was interviewed at the Savannah store for a Customer Service position by a Human Resources employee. She was not asked about her outdoor experience, but was told that the store was currently hiring for all shifts. Brown was given Orion tests following her interview. The test results were never discussed with her and she did not receive a job offer. Defendants never hired Brown.
201. Nikia Lewis is Black. She applied to the Macon, Georgia store around March 2006 and was interviewed at a job fair. Lewis was never called for a second interview and was never hired by Defendants.
202. Latasia Blige is Black. She applied to the Savannah, Georgia store around September 2006. Blige learned of the job opening by reviewing a list of available jobs at the customer service counter in the mall where the store is located. Despite the posted openings and her two years of experience in customer service, Blige was not contacted for an interview or
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hired. During multiple visits to the store, Blige observed that the great majority of employees at the store were White.
203. Kwabena Ababio is Black. He applied to the Savannah, Georgia store around September 2006, and again around October 2006. When he first applied, Ababio told Defendants that he had tent camping, freshwater fishing, and hiking experience. Abadio also had completed some college and speaks five languages. In response to his first application, he was informed that he did not meet Defendants’ hiring criteria. Upon submitting his second application in October 2006, Ababio was interviewed by a Human Resources employee and then a department manager. He also completed an Orion test and a drug screen. Again, Ababio was informed that he did not meet Defendants’ criteria for hire.
204. Porsha Savage is Black. Savage had experience in freshwater and salt water fishing when she applied to the Hampton, Virginia store in May 2006. She was not interviewed or hired by Defendants.
205. Tiara Blackshear is Black. Blackshear had retail experience at Toys R Us and was employed at Wal-Mart when she applied at the Katy store in July 2006. Blackshear was called in to a room with about five to six other applicants to take a personality test. Among these applicants, Blackshear was the only Black and the only one not sent for a drug test. Blackshear observed that she was the only Black among all the employees and applicants she saw at the store that day. Defendants did not hire Blackshear.
206. Ikiya Celestine-Glover, also known as Ikiya Harris, is Black. She applied at the Macon, Georgia store in about October 2006. She was interviewed and was given an Orion test. She was not contacted or hired by Defendants.
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207. LaVita Childs is Black. She had cashier experience when she applied for a cashier position at the Macon, Georgia store at a job fair in August 2006. Childs was interviewed at the job fair, but was not contacted by Defendants despite her many attempts to determine the status of her application. She applied again in 2010 or 2011, but was not contacted by Defendants. Defendants did not hire Childs.
208. Sharon Clements is Black. She had experience as a cashier when she applied to the Macon, Georgia store in August 2006 at a job fair. She was interviewed at the job fair, but never heard back from Defendants. She applied again about six to 12 months later, but was not contacted by Defendants. Defendants did not hire Clements.
209. Kecia Coleman is Black. She applied to the Macon, Georgia store in November 2006. While at the store, Coleman observed that a manager was more helpful to White applicants than she had been to Coleman. When Coleman called to check the status of her application, she was told they were not hiring at the time. She applied again about 4 to 6 months later, but she was not contacted or hired by Defendants.
210. Adrian Dennis is Black. Dennis had experience as a cook and stocker when he applied to the Macon, Georgia store in November 2006. He called to check the status of his application and was told the store was still reviewing applications. He was not interviewed or hired by Defendants.
211. Leroy Heath is Black. He had extensive supervisory experience when he applied to the Macon, Georgia store at a job fair in August 2006. At the job fair, a company representative told him he had good qualifications and experience. He was sent to the store to complete and submit his application. Defendants did not hire Heath.
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212. Valentina Holloway-Bailey is Black. Holloway-Bailey had experience as a cashier and stocker when she applied to the Macon, Georgia store in September 2006. When she called to check the status of her application, she was told that the store had completed its hiring. Around 2007, Bailey submitted an online application and was interviewed. Defendants did not hire Holloway-Bailey.
213. Dexter Strange is Black. He had firearm, hunting, and fishing experience when he applied to the Pearl, Mississippi store in September 2007. He spoke to a Human Resources employee about how to get a job and called several times to check on the status of his application. He was told that he would be contacted if he was selected for an interview. Strange was never contacted or hired by Defendants.
214. Clarence White, Jr. is Black. He applied to the Bossier City, Louisiana store in October 2005. White was not interviewed or hired.
215. Renata Valadez is Black. She had cashier experience when she applied to the Bolingbrook, Illinois store in March 2008 and again later that year. Valadez was not hired by Defendants.
216. Ciera Royston is Black. She applied to the Bolingbrook, Illinois store in September 2008. She called the store to check on the status of her application, but was never contacted or hired by Defendants.
217. O’Darrell Howard is Black. He applied to the Macon, Georgia store in October 2006 by submitting an application at the store. He was not contacted by Defendants. He applied again and contacted Defendants about being interviewed, but received no response. Defendants did not hire Howard.
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218. Sandra Howell is Black. She applied to the Macon, Georgia store in November 2006. When she called about the status of her application, she was told that the store was not hiring. Defendants did not contact or hire Howell.
219. Mary Howell is Black. She applied to the Macon, Georgia store in November 2006. She was told she would be contacted when she submitted her application, but was not contacted or hired by Defendants.
220. Ramon Kizer is Black. In August 2006, Kizer applied to the Savannah, Georgia store. He stopped by the store and called several times to check on the status of his application. He was not contacted or hired by Defendants.
221. Sabrina Gates is Black. She applied to the Savannah, Georgia store in August 2006. She had previously worked for Defendants, but left in 2005 after twice being passed over for promotion. When she reapplied, she was sent a rejection letter. Despite having satisfactory job performance during her first job with Defendants, Gates was not hired after her August 2006 application.
222. Gary Mincey is Black. He applied in person to the Savannah, Georgia store in May 2007. Mincey called a few times to check on the status of his application, but was not contacted back. He applied again and was not contacted or hired by Defendants.
223. Lucy Brown is Black. Brown had experience in saltwater fishing and freshwater fishing, as well as experience in backpacking, rock climbing, hiking, rappelling, and tent camping when she applied to the Savannah, Georgia store in January 2006. She was not interviewed or hired by Defendants.
224. Keiwonda Tennerson is Black. She applied to the Savannah, Georgia store around February 2006. Tennerson was not hired by Defendants.
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225. Carlos Williams is Black. He applied at the Savannah, Georgia store around May 2007. He spoke to a manager about a boat detailer position, was interviewed and told he met the qualifications for the position. He called to follow up regarding his application. Defendants did not hire Williams.
226. John Wilson is Black. He applied to the Savannah, Georgia store around January 2006 based on a job listing he saw at the security desk at the mall where the store is located. He called about the status of his application and was told it was being reviewed. Defendants did not hire Wilson.
227. LaRue Brown is Black. Brown had almost 10 years of experience with Wal-Mart when she applied to the Savannah, Georgia store in January 2007. Brown also had loss prevention experience at Dillard’s and years of security experience at the mall in which the Savannah store is located. She was interviewed for a Loss Prevention position. The interviewer offered her a position, and told her to call back on Friday. When she called back on Friday, she was advised that the position was no longer open. Defendants retracted her job offer.
228. Helen Marie Carter is Black. Carter had over 8 years of retail experience with Mervyn’s, Kohl’s, and Target when she applied at the Bossier City, Louisiana location in December 2005. She had previously applied when the store opened around November 2003. Carter was not hired by Defendants.
229. Nathaniel Carter is Black. Carter had retail experience at Macy’s and loss prevention experience at Marshall’s and Lowe’s when he applied twice for employment, including to the Katy, Texas store in October 2005. Defendants did not hire Carter.
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230. Kendall Dean is Black. He applied at the Springfield, Missouri location around September 2011 and again in January 2012. Dean followed up on his applications by telephone, but was not contacted by Defendants. Defendants did not hire Dean.
231. Cheryl Fields is Black. Fields has an MBA. She applied at the Olathe, Kansas store around the time of its opening in February 2007 by dropping off a resume in person. She also applied online for a manager position in 2007 or 2008 when she saw a “now hiring” sign at the store. She was not hired by Defendants.
232. Walter Hargrove, Jr. is Black. Hargrove listed experience in bass fishing, trout fishing, and salt water fishing when he applied at the Katy, Texas store in March 2007. Hargrove was not hired by Defendants.
233. Wayne Henderson is Black. He had forklift experience. He applied twice to the Macon location, including in October 2006. He inquired about the status of his application by phone and in person and was told that he would be called when a job became available. He was not hired by Defendants.
234. Tishanna Hollins is Black. She applied at the Katy, Texas location in March 2005. She was not hired by Defendants.
235. Jakara Hood is Black. She had customer service experience when she applied at the Macon, Georgia location in November 2006. Hood was not hired by Defendants.
236. Jerrell Howard, Jr. is Black. He had customer service experience when he applied at the Macon, Georgia store about three times: in June and September 2006 and in 2010. In 2006, Howard was interviewed but not hired. Around the same time, Defendants hired a White acquaintance of Howard who had similar skills as Howard.
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237. Ebony Hemphill is Black. She had retail experience when she applied to the Pearland, Texas store in September 2007. She was given a screening test and interviewed by an employee who advised her that she would not be offered more than one shift per month if hired. Defendants did not hire Hemphill.
238. LaKenya Hutchings is Black. She applied at the Macon, Georgia location in January 2007 and listed fishing as a hobby. She was not interviewed or hired by Defendants at that time. She applied again in 2012, months after this lawsuit was filed, and was hired in May 2012.
239. Rachel Guidry is Black. She had experience as a cashier, stocker, and flight attendant when she submitted her application online and handed in a copy at the Bossier City, Louisiana store in the early 2011. She called to inquire about her application and was told that it would be pulled out for review but she received no further response. Defendants did not hire Guidry.
240. LaSedrich Horton is Black. Horton had experience as a Project Officer with the Mississippi Department of Wildlife and experience in archery, bow hunting, deer hunting, and small game hunting when she applied in person at the Pearl, Mississippi store in October 2007. Horton was not hired by Defendants.
241. Anthony Gloston is Black. Gloston listed his Peace Officer certification and work experience in construction and store management as well as his work as a police officer and a navy sailor when he applied to the Macon, Georgia store in March 2007. He also listed water sports and fishing as some of his hobbies in addition to his experience in about nine other outdoor activities. He applied twice, and was told that his application was being reviewed when
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he inquired about the status of it, but he never heard back from Defendants. Defendants did not hire Gloston.
242. Sharon Gloston is Black. Gloston listed her secretarial education, certificate in computer assisted training, and her work experience as a quality assurance clerk and auditor on her application when she applied to the Macon, Georgia store in March 2007. She also listed fishing, swimming, and camping as her hobbies in addition to her experience in four outdoor activities. She called to inquire about the status of her application and was told it was being reviewed but never heard anything again. When she submitted her application at the store, she observed that all of the cashiers were White and she saw no minority employees. Defendants did not hire Gloston.
243. Afric Simon is Black. He applied to the Pearl, Mississippi store in November 2007. He called to check on the status of his application and was told to check back. Simon was not contacted or hired by Defendants.
244. Corvé Smith is Black. He had retail and rock-climbing experience when he applied to the Bolingbrook, Illinois store twice in 2007. He followed up on his applications and was told someone would call him. He was not contacted or hired by Defendants.
245. Martel Rudd is Black. He had sales and cashier experience as well as recreational fishing experience when he applied to the Bolingbrook, Illinois store in the spring of 2007 after a White friend of his suggested he apply and told him that it was easy to get a job at the store. He was not contacted or hired by Defendants.
246. Melinda Slaton is Black. She had 16 years of cashier experience when she applied to the Macon, Georgia store in early 2007. She followed up on her application several times and each time was told the store was not hiring. Slaton was not hired by Defendants.
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247. Nicole Griffith is Black. She had cashier and management experience when she applied to the Pearl, Mississippi store in May 2006. She was asked about her cashier experience and was told that she would be contacted. She never was contacted, including after she called to inquire about her application on multiple occasions. Griffith was not hired by Defendants.
248. Cheryl Andrews is Black. She had years of retail experience and knowledge of fishing when she attended a job fair in August 2006 and submitted an application for the planned Macon, Georgia store. Andrews was interviewed, but she was not hired by Defendants.
249. Willie Andrews is Black. He had over ten years experience as a retail manager and had extensive knowledge of boating, fishing, and hunting when he applied for a position at the planned Macon, Georgia store in August 2006. When he inquired about his application, he was told that there were no jobs available. Andrews was not hired by Defendants.
250. Joseph Brooks, Jr. is Black. He had significant knowledge about outdoor recreational activities when he applied to the Macon, Georgia store in November 2006. He was not hired by Defendants.
251. Reginald Celestine is Black. Celestine noted on his application that he had extensive managerial, retail, and customer service experience as well as specialized knowledge of hunting, fishing, and camping when he applied to the Katy, Texas store in February 2005. He was not hired by Defendants.
252. David Fox, Jr., is Black. In 2009 and 2010, he applied at the Hampton, Virginia store. An employee at the store told Fox’s uncle that the store was hiring, which led Fox to apply. Fox has fishing experience and has visited the store frequently. Defendants did not hire Fox.
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253. Kareena Calhoun is Black. She applied at the Pearl, Mississippi store twice in September 2007. Her first application was a hard copy and around ten days later she applied online. Both times she was administered the Orion test, and both times Calhoun authorized Defendants to conduct a pre-employment background screening. She never heard back from Defendants and was not hired.
254. Tavasha Tonsil is Black. She had four years of experience in shipping, receiving, and stocking while serving in the U.S. Army when she submitted an online application for the Savannah, Georgia store in May 2007. Defendants did not hire Tonsil.
255. Antoine Harris-Singleton is Black. He applied for a job at the Pearl, Mississippi store three times in May 2006. Although the store had a sign in the window advertising job openings, Harris-Singleton was told by Customer Service staff that there were no job openings. When he called about the status of his application, he was told that they would call him when his application was pulled for review. When Harris-Singleton made a trip to the store around that time, he was told by a White employee that the White employee had applied for a job the day before and had been hired on the spot. Harris-Singleton did not see any Black employees during his visits to the store. He was not contacted or hired by Defendants.
256. Nora McGill is Black. She had years of customer service experience, fishing experience, and had studied Business Administration when she applied at the Pearl, Mississippi location in May 2007 and at one other time between 2006 and 2008. She called to follow up on her application and followed up also with at least one visit to the store. She initially was told that her application was under review but was then told that the position had been filled. Defendants did not hire McGill.
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257. Dandrick Cornelius is Black. In January 2006, Cornelius applied for a cook/porter position at the Bossier City, Louisiana store. When Cornelius called to follow up on his application, he was told to reapply. In May 2006, he submitted a second application for a cook/porter job at the Bossier City store. He called several times to follow up and again he was told that he needed to reapply. He was never hired by Defendants.
258. Ancetha Dudley is Black. She had about three years of stocking and cashier experience when she applied to the Macon, Georgia store in December 2006. Dudley inquired about her application several times and was told that it had not been reviewed. She was not hired by Defendants.
259. Shanada Patrick is Black. She had cashier and customer service experience when she applied to the Pearl, Mississippi store in September 2006. She called multiple times to inquire about her application and was told each time that her application had not been reviewed. Defendants did not hire Patrick.
260. Carlos Antonio Glover is Black. He had 4 years of experience in retail warehouse distribution when he applied for the first time at the Macon, Georgia store in September 2006. He was not hired by Defendants. In late 2010, Glover applied a second time for a job at the Macon store. Again, he was not hired by Defendants.
261. Lorenzo Partman is Black. He had deer hunting experience when he applied to the Bossier City, Louisiana store in late 2005 and again, online, in 2007. Defendants did not hire Partman.
262. LaTroy West is Black. He applied at the Springfield, Missouri store four times from 2010 to 2011. Each time he applied, West took a skills test on the computer and scored 100%. He also was interviewed. He called to inquire about the status of his application after the
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interviews. During his visits to the store, West never saw a Black employee. West was not hired by Defendants.
263. Shamere James is Black. She applied several times in 2006 and 2007 to the Macon, Georgia store for a cashier job. At the time of her applications, she had relevant work experience. James was never hired by Defendants.
264. Anne Jenkins is Black. Sometime in 2006, before the opening of the Macon, Georgia store, she attended a job fair for the store and submitted an application. She was not hired. In October 2006, Jenkins applied again online for a job at the Macon store. She was interviewed, but she was not hired by Defendants.
265. Danyell Johnson is Black. Johnson had significant retail warehouse/distribution experience as well as boating and camping experience when he applied for a job at the Macon, Georgia store in 2006 and 2007. He was not hired by Defendants.
266. Leslie Johnson is Black. In August 2006, Johnson applied for and was interviewed for a position at the Macon, Georgia store. She had relevant work experience but was not hired by Defendants.
267. Adorn Jones is Black. Jones had significant cashier experience when she applied to the Katy, Texas store in September 2005. She was interviewed by a manager who concluded the interview by telling her that “we're not sure you fit in.” Jones was not hired by Defendants.
268. Orlando Franklin is Black. He worked at Defendants’ Denver, Colorado store from November 2010 to December 2010 as a PACE employee. Franklin was terminated right before New Year’s Day even though he requested a permanent position and while White PACE employees were hired for permanent positions. His supervisor told him to apply for a boat detailing position, which he applied for, but he was never contacted about his application. He
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called to inquire about the position and was told they were not hiring. To Franklin’s observation, almost all of the staff at the store was White. Franklin was not hired as a permanent employee with Defendants.
269. Cecil Jordan, Sr. is Black. He applied to the Macon, Georgia store in August 2006. A few weeks later, an employee contacted him to say that his application had been denied but that he could return to the store to reapply. He then reapplied sometime later in 2006. He was interviewed by a manager who appeared uninterested in what Jordan had to say about his qualifications and who left the interview midway for a lengthy period of time without excusing himself. Jordan is highly skilled in hunting and fishing and had work experience selling sporting goods as well as taxidermy experience. During his interview, the interviewer had Jordan take a highly specialized archery skills test that required him to name and explain specific archery equipment. The interviewer also quizzed him about Defendants’ policies even though he had never worked for Defendants. Jordan was not hired by Defendants.
270. Jshell King is Black. She had relevant work experience and experience in fishing, boating, and camping when she applied to the Macon, Georgia store in October 2006. King was not hired by Defendants. A White friend of hers, however, also applied for a job and was hired.
271. Christopher Lamar is Black. In February 2007, he applied to the Macon, Georgia store. At the time, he had experience working in retail and stocking. Shortly after submitting his application, he called the store to follow up and was told that the store did not have his application. He called again and once more he was told that they did not have his application. Lamar was never hired by Defendants.
272. Oscar Pope is Black. He had about 20 years experience as a manager and experience in hunting and fishing when he applied and was interviewed for a job at the Pearl,
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Mississippi store in May 2007. He knew that the store was hiring from a Sales Manager. Pope followed up on his application several times but was never contacted or hired by Defendants. A White former co-worker who had applied for a job at the Pearl store a few days before Pope was hired.
273. Jesse Liggins is Black. Liggins first applied for a Sales Associate position at the Macon, Georgia store at a hiring fair in July 2006. He was interviewed and received an “A+” rating. He also took a personality test that scored him as “above average” on supervisory attitudes. At the time, he worked as a pastor and had relevant retail sales experience. Despite these qualifications, one of the interviewers attempted to steer him into a lesser paying janitorial position even though he had no janitorial experience. After the fair, he visited the store to speak to a manager and follow up on his application and was told they were still reviewing applications. He reapplied for a job in August 2006 and after filling out an application and waiting some time to speak to a manager, an employee informed him that no positions were available. He was not hired by Defendants.
274. Charles Miles is Black. Around November 2005, he applied to the Bossier City, Louisiana store after he saw a help wanted sign in the store window. He later spoke to an employee about his application, who told him that they were not hiring at the time and that they had not reviewed his application. Miles was not hired by Defendants.
275. Luanda Archer is Black. She attended the job fair at the Maple White church for the Macon store in summer 2006. After the screening interview at the job fair, she was interviewed at the store site. Although Archer came away from her second interview believing that she would be hired, Defendants did not hire Archer.
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276. Omoniyi Awontumde is Black. He attended the job fair at the Maple White church for the Macon store in summer 2006, and he completed an application in August 2006. He took the Orion test, and scored “Average,” “Above Average,” or “Low Risk” in all categories. After he was interviewed, he was told that he would be called back, but instead he received a letter stating that he was not qualified for the position. Defendants did not hire Awontumde.
277. Wayne Black is Black. He applied to the Hanover, Maryland store, around February 2008. Although he had work experience, Defendants never contacted him after he submitted his application. He followed up by calling the store, but Defendants did not hire Black.
278. Glenoard Roberson is Black. In September 2006, he applied to the Bossier City, Louisiana store. Roberson was not hired by Defendants.
279. Kenneth Robinson is Black. In November 2005, he attended a hiring event for the Katy, Texas store. He was not hired by Defendants.
280. Wanda Williams is Black. In February 2007, Williams applied to the Savannah, Georgia store because she had heard that the store was hiring. She submitted her application to a manager who told her that there were no jobs available. Williams was not hired by Defendants.
281. Rose Wimberly is Black. In mid to late 2006, she applied to the Macon, Georgia store through Defendants’ hiring fair. Wimberly was not hired by Defendants.
282. Fredrick Jones is Black. He applied to the Grapevine, Texas store in January 2007. He called twice to follow up on his application but was never contacted by Defendants. Jones was not hired by Defendants.
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283. Eric Kilpatrick is Black. He had significant maintenance experience when he applied at the Katy, Texas store in 2011. He was interviewed and told that he would also need to interview with the General Manager. After he waited, he was told that the General Manager had left for the day. Kilpatrick was not interviewed further and was not hired by Defendants.
284. Oscar Pope is Black. He had relevant work experience and significant outdoor experience when he applied to the Pearl, Mississippi store in 2006 and 2007. He followed up on his applications several times, but he was never contacted or hired by Defendants.
285. Franklyn Little is Black. Little applied to the Macon, Georgia store in August 2006, October 2006, and again in 2008. On his applications, he listed his extensive experience in fishing, boating, and camping as well as his having a commercial driver’s license. He was given a simple math test on which he scored 100. When he called to inquire about his applications, he was told that someone would call him back, but he was never called back. When he later shopped at the store, he saw that some Whites who had applied at the same time he did were now employed by Defendants.
286. Crystal Milburn is Black. She had retail experience when she applied at the Katy, Texas store in June 2005. Milburn was not hired by Defendants.
287. Evan Owens is Black. She applied to the Pearland, Texas store in 2007 and 2008. Owens was interviewed but not hired by Defendants.
288. Clyefer Bass, Jr. is Black. He had experience with outdoor activities when he applied to the Bossier City, Louisiana store around July 2006. Upon being interviewed, a Store Human Resources Manager told Bass that his application was impressive, and that he intended to place him in the archery section of the store. However, Bass never received a call back for a second interview and was never hired by Defendants.
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289. Karl Blair is Black. He applied to the Independence, Missouri store around December 2010. A Human Resources representative called Blair and told him that his application was "perfect" and "exactly what [he] was looking for." When he came in for his interview the next day, the Human Resources representative looked at him and told him the position had been filled. Blair was never hired by Defendants.
290. Johnaca Burnett is Black. She had retail experience when she applied to the Macon, Georgia store around July 2005. When Burnett called to follow up about her application, a Human Resource representative told her that she did not meet the qualifications for the job and that the position had been filled. Burnett was never hired by Defendants.
291. Ron Clark is Black. He had loss prevention experience at a large retailer when he applied for a loss prevention position at the Dania, Florida store in 2008 and again in 2009. Clark was not contacted or hired by Defendants.
292. Kim Dang is Black and also of Asian-American descent. She had extensive experience in human resources when she applied for a Store Human Resources Manager position in the Denver, Colorado store in March 2009. She was screened by telephone and interviewed in person. Dang was not contacted again or hired by Defendants.
293. Juverlin Douglas is Black. He had extensive outdoor experience when he applied to the Macon, Georgia store around July 2007. Douglas was interviewed. Initially, Douglas was told that there were several job openings, but he was never called back for a second interview. Douglas was not hired by Defendants.
294. Vincent London is Black. In December 2005, he applied to the Bossier City, Louisiana store by asking for an application at the store. He informed the employee who took
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his application that he had retail experience. The employee told London that someone would contact him, but he was not contacted or hired by Defendants.
295. Terry Hughes is Black. He applied to the Macon, Georgia store while attending a job fair around March 2006. He was interviewed twice at the job fair. Hughes was not hired by Defendants.
296. Shar-Nell Jordan is Black. She attended a job fair in East Peoria, Illinois where Defendants were a featured recruiter. She applied for a position at the East Peoria store, which was scheduled to open shortly after the job fair. Jordan was interviewed at the job fair and then again a second time a few weeks later. A Human Resources representative told Jordan that she would have a third interview, which was essentially a background check. However, Jordan was never called back for a third interview and was never hired by Defendants.
297. Chiquetta McCraw is Black. She applied twice to the Bossier City, Louisiana store, including in April 2006. McCraw submitted an application to a clerk in the store. She was not interviewed and never heard back from Defendants. McCraw went to the store to check on her application and was told the position was filled. She saw only White employees while at the store. Defendants did not hire McCraw.
298. Charlene Sidener is Black. Sidener had retail management and sales associate experience when she applied for managerial positions at the East Peoria, Illinois store in July 2011. Sidener was interviewed and her experience was deemed "exceptional" by the Human Resources representative who interviewed her. Nevertheless, Sidener was never called back for a second interview and was not hired by Defendants.
299. Rose McClenden is Black. She had over four years of cashier experience when she applied at the Pearl, Mississippi store in June 2007. After turning in her application, she
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called every day to follow up. Finally, she was told that the store was not hiring anymore. Defendants did not hire McClenden.
300. Jamian Alexander is Black. He applied to the Pearl, Mississippi store around November 2006. Alexander submitted both a written application in person at the store and an application online. Alexander had retail experience and hunting and fishing experience. When Alexander submitted his application in person, he was brushed off by store personnel who appeared disinterested in accepting his application. At this time an employee informed him that every position had been filled. Alexander attempted to follow up but every time he gave his name, the employees with whom he spoke told him all positions had been filled. Alexander never saw any Blacks working in the store. Defendants never hired him.
301. Carolyn Reynolds is Black. She had many years of experience as a customer service representative when she applied twice to the store in East Peoria, Illinois in May 2011. She submitted her first application in person in May 2011, which was the first day applications were accepted. Reynolds also submitted a second application on-line. She was first interviewed by two representatives who appeared interested in Reynolds’s resume. She returned for a second interview with a manager who was curt, spent less than five minutes with her, and appeared disinterested in what Reynolds had to say. The manager did not ask her about her work experience. Defendants did not hire Reynolds.
302. Roderick Alston is Black. He applied in person to the Hanover, Maryland store around August 2005. Alston gave the application to a store employee, who told Alston that someone would get back with him about the application. Defendants did not contact or hire Alston.
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303. James Bullard is Black. He had fishing and hunting experience when he applied to the Bossier City, Louisiana store in May 2006. Bullard submitted an application in person. He was not interviewed or contacted by Defendants.
304. Earnest Wright is Black. He applied to the Bossier City, Louisiana store first around September 2006, and several times again in 2007. He was never contacted by Defendants. When Wright called to inquire about the status of his application, he was told that the position was filled. Defendants did not hire Wright.
305. Michelle Younger is Black. Younger had 10 years of cashier experience when she applied for a position with Defendants’ new store in East Peoria, Illinois scheduled to open in September 2011. She submitted her application at a job fair. After waiting a long time, she was given a quick interview by an employee. Younger was never called her back for a second interview or offered a job by Defendants.
306. Chantelle Johns is Black. In June 2006, Johns applied to the Bossier City, Louisiana store in response to ads she saw in a newspaper and online. She submitted her application in person at the store and spoke with the manager in charge. She informed the manager about her experience as a cashier at a casino, Wal-Mart and Home Depot. Johns was not hired by Defendants.
307. Reginald Johnson is Black. He had retail work experience when he applied to the Macon, Georgia store in December 2006. Johnson submitted his application in person at the store, but was not contacted by Defendants. He later submitted another application, but again was not contacted by Defendants. Defendants did not hire Johnson.
308. Charles Allen is Black. In fall 2008, he attended a job fair in Bossier City, Louisiana, and learned that Defendants were hiring. Allen had previously applied to Defendants
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in November 2006. Allen made several return trips to the Bossier store to apply for a job, and was consistently told by employees to come back. After many trips to the store, Allen was finally given an application, which he submitted in 2008. He was never contacted by Defendants despite his attempts to follow up on his application. Allen was never interviewed or hired by Defendants.
309. Antonio Elzie is Black. Around November 2006, he applied to the Pearl, Mississippi store, along with his friend Jamian Alexander. Elzie applied both in person and online. He had retail experience. A manager hurriedly gave Elzie an application, and then tried to brush him off when he submitted the completed application. Defendants did not hire Elzie.
310. Jeremy Jones is Black. Jones had 6 years of sales experience and fishing and hunting experience when he applied to the San Antonio, Texas store around September or October 2011. During his visit to the store to submit his application, he was treated condescendingly by White staff, who told him he should apply online. He followed up on his application by making inquiries at the store, but he was not contacted by Defendants for an interview or otherwise. Jones was not hired by Defendants.
311. Darryl Anthony is Black. He applied to the Macon, Georgia store in September 2006. Anthony was not interviewed or hired by Defendants.
312. Daniel Winfield is Black. Winfield had experience in retail sales and receiving when he applied to the Hanover, Maryland store in April 2006. He was never hired by Defendants.
313. Cathy Pearson Hiley is Black. She applied to the Macon, Georgia store at a job fair in August 2006. She had a short interview, but received no further contact from Defendants. Hiley observed that many Blacks applied at the job fair and believes that none were hired.
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314. Darcy Jackson is Black. He had outdoor experience when he applied to the East Peoria, Illinois store in September 2011 by submitting his application at a job fair. He waited a long time for a rushed first interview. He was told that he would receive a second interview, but he never was contacted again by Defendants. Defendants did not hire Jackson.
315. Shawn Gibbs is Black. In summer 2007 and again in summer 2001, he tried to obtain a position at the Bolingbrook, Illinois store. In 2007, Gibbs was hired as a dishwasher for the restaurant in the store. He made attempts to transfer from the restaurant to a position in the retail store, but his Defendants did not offer him such a job.
316. Tosha McSweeny is Black. She applied twice to the Hampton, Virginia store. She was not hired by Defendants.
317. Jacqueline Johnson is Black. She applied in person at the Savannah, Georgia store in November 2006. Johnson later called the store to check on the status of her application, but received no response. She was not interviewed or hired by Defendants.
318. Jackquelin Gray is Black. Gray had freshwater fishing experience when she applied in person at the Pearl, Mississippi store in September 2006. After submitting her application, Gray called the store three times to check on its status. On the first two occasions, she was told that Defendants were still going over her application. The third time, she was told that the store was not hiring. Defendants did not hire Gray.
319. Ellis Hays is Black. He indicated that he had experience in small game hunting and freshwater fishing when he applied in person at the Pearl, Mississippi store in January 2008. Hays was never contacted or hired by Defendants.
320. Sasha Brown is Black. She applied multiple times to the Savannah, Georgia store, including in May 2006 and late 2007 or early 2008. Brown submitted her written
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application in person, but no one ever contacted her despite her repeated efforts to follow up on the status of her application. The first time Brown called she was transferred multiple times and unable to speak to anyone. The next time Brown called she was placed on hold for an extended period until she finally hung up. The third time Brown called no one answered. Brown saw no Blacks working at the store when she visited it. Defendants did not hire Brown.
321. Latiché Bush-Lane is Black. She has a Bachelor’s Degree and a Master’s Degree. She applied to the Bolingbrook, Illinois store around June 2007. Bush-Lane submitted a written application in person to a store employee. Bush-Lane was interviewed by a manager, who told her that she would be called if a position became available as all positions allegedly had been filled. Bush-Lane tried to follow up without success. Defendants did not hire Bush-Lane.
322. Rodrick Chaney applied at least twice to the Macon, Georgia store including in August 2006 before the store opened. In his August 2006 application, he listed fishing and camping experience. He asked an employee at the front desk if the store was hiring and was told they were. Chaney then submitted an application to the employee. Chaney never heard from anyone so he submitted a second application online. Chaney then called the store a couple of times to follow up and was told that someone would call him back. He was never contacted or hired by Defendants.
323. Reginald Chisholm is Black. He had retail experience and hunting and fishing experience when he applied twice to the Concord, North Carolina store. Chisholm worked at the Concord Mills mall where the Defendants’ store is located. The first time Chisholm applied was when an employee told him that the store was hiring while he was shopping at the store. The employee gave Chisholm an application, which he filled out and gave back to her. The employee told Chisholm that someone would call him about his application. After he did not
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hear from anyone, Chisholm called back to find out the status of his application but was unable to get an answer. He applied again but again was not contacted. Chisholm was concerned that the store was not calling him back as he never saw any Blacks working there when he shopped at the store. Defendants did not hire Chisholm.
324. Antwan Clark is Black. He observed a large hiring sign posted in the window at the Concord, North Carolina store around 2008 or 2009 and decided to apply. Clark submitted a written application in person at the store, but was told by a manager that the store was not hiring. Clark questioned the response due to the large “now hiring” sign in the window and was told by the manager that, notwithstanding the sign, the store was not hiring at that time. Clark was told that he would be contacted when the store was hiring. Clark made several follow up calls to determine if the store was hiring and to check the status of his application. Each time Clark called and gave his name, he was told that the store was not hiring even though the hiring sign remained in the window. When Clark mentioned the sign, a manager told him that the sign was irrelevant and they were not hiring. During his second follow up call, an employee informed Clark that the Human Resources department was looking though the applications, but they had not made any decisions. The third time Clark called the store he was put on extended hold before an employee told him that the store had reviewed all applications and filled all open positions. She also said that he did not qualify for any position. Clark believed this was not accurate as he had retail experience and hunting and fishing experience. Clark was never hired by Defendants.
325. Jaymie Hughes is Black. She had over 10 years experience as a human resources manager at Wal-Mart when she applied on-line for a human resources management position at the Katy, Texas store between July and October 2009. She saw the position posted online with
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Career Builders. Hughes was interviewed by Brent Day (Director of Human Resources (Retail)) and Jill Klimas (Regional Human Resources Manager) in October 2009. During this interview, Hughes was told that her qualifications were excellent. She also was told that there would be a second interview. Hughes made numerous efforts to follow-up about the second interview, including by going to the store to inquire about the second interview, but Defendants never contacted her about it. When she was at the store, Hughes observed that there appeared to be no minority employees. Defendants never hired Hughes, who later secured a Director of Human Resources position with another company in Katy, Texas.
326. Bryan Fleming is Black. He applied twice to the Savannah, Georgia store. Around 2005, Fleming submitted a written application in person at the store and attempted to speak to a manager about it. Fleming was told that no manager was available. He asked if the manager would call him and was told his application would be submitted and that the manager would decide whether to call Fleming. Fleming made several follow up calls and asked for a manager, who was never available. Fleming was never contacted. In May 2007, Fleming applied again and encountered the same response. He was never able to speak to a manager despite his attempts. Fleming was not interviewed or hired by Defendants.
327. Shanetta Gibson is Black. She submitted a written application to the Bossier City, Louisiana store in September 2006. She asked to speak to a manager but none was made available. Gibson called back to follow up on her application and was told that they were not hiring. Defendants never hired Gibson.
328. John Irvin is Black. He had fishing and retail experience when he applied in person at the Macon, Georgia store in December 2007. Irvin was never called for an interview
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and was not otherwise contacted about his application. Irvin attempted to follow up on his application, but did not succeed in obtaining an interview or a job with Defendants.
329. Geraldine Battle is Black. She submitted an application in person to the Macon, Georgia store in December 2006. Battle told the person who accepted her application that she would be willing to accept any position that was available in the store, or at the factory in Macon. She was given a test about plants and shown a film. Battle was never interviewed or hired by Defendants.
330. Anthony Burts, Jr. is Black. He had hunting, fishing and military experience when he applied at the Bossier City, Louisiana store on two occasions between 2005 and 2007. The first time he applied, Burts went to a job fair at a hotel. He was interviewed and never heard back from Defendants. He later went to the store and submitted another application. The who accepted Burts’ application informed him that someone would be in touch, but he was not contacted. Burts went to the store to inquire about the status of his application, but was unsuccessful. He was not hired by Defendants.
331. Ebony Brogdon is Black. She applied for a cashier or sales clerk position at the Bossier City, Louisiana store in June 2006. Her mother, Diane Beck, also Black, applied at the same time as Brogdon. Brogdon and Beck had cashier experience. Brogdon and Beck submitted their applications to a manager, who did not ask them about their experience or training. Brogdon called weekly to check on the status of their applications, and also went to the store to speak with the manager. She was never able to speak to the manager, but was told someone would call her about their applications. Brogdon and Beck were never called, interviewed or hired by Defendants. Further, during her visits to the store, Brogdon never saw any Black employees.
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332. Tasheita Brown is Black. She applied to the Savannah, Georgia store in November 2010. Brown was interviewed by a manager who told Brown that Defendants were hiring, but that the final decision had to be made by the General Manager. Although the manager had told Brown that she was a good candidate who would receive a second interview, she was not contacted about a second interview and not offered a job by Defendants.
333. Aggie Glawson is Black. She applied to the Macon, Georgia warehouse/Distribution Center at least twice, including February 2007. She was required to take a test, for which she understood the applicants were to be paid. Glawson received a letter indicating she passed the test and that someone would call her about filling a position. She never received a call, was never paid for her time taking the test, and was never hired by Defendants.
334. Kareri Irungu is Black. He applied to the Concord, North Carolina store multiple times from 2005 through 2008. Irungu was walking through the mall when he noticed a “Now Hiring” sign so he entered the store and asked for an application. Irungu submitted the written application in person at the store but had some difficulty in obtaining the application from an employee even though application forms were right next to the employee’s work space. The employee was not cooperative when Irungu inquired about the available position. Irungu noted on his application that he had retail and customer service experience. He returned to the store twice to check on his application but was not offered any assistance, nor was he able to speak to a manager. Defendants never hired Irungu.
335. Carolyn Johnson is Black. She applied to the Bossier City, Louisiana around November 2005 when she went by the name Carolyn Thomas. She filled out an application and submitted it to an employee who told her they were not hiring. Defendants never hired Johnson.
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336. Carolyn Williams is Black. Williams had cashier experience when she applied to the Pearl, Mississippi store in person in June 2006, and on-line around May 2012. After applying, Williams called the store several times a week to check on the status of her application. She was repeatedly told that the store was not hiring, and that she could apply again if she did not receive a call within 60-90 days. Williams was never contacted or hired by Defendants.
337. Daphne Williams is Black. She attended a job fair in April 2006 for the Pearl, Mississippi store. She indicated on her application that she had cashier and sales experience, as well as experience with freshwater fishing, tent camping and RV camping. Williams later called the store to check on the status of her application. In response, she was told that the store was not hiring, but if they felt she was qualified for a position, they would call her. She was never contacted or hired by Defendants.
338. Keshun Wren is Black. She applied in person to the Pearl, Mississippi store in August 2006. She listed her cashier experience on her application. Ms. Wren was never contacted or hired by Bass Pro.
339. Pansy Evans is Black. Around 2005 or 2006, she applied on-line for a position at the Memphis, Tennessee, store or the Pearl, Mississippi, store. She had Human Resources and banking experience when she applied. Defendants never hired Evans.
340. Tamika Kyle is Black. She applied to the Pearl, Mississippi store around May 2006 after hearing on the news that the store was hiring. Kyle submitted her application in person, listing her retail experience, and archery and fishing experience. She attempted to follow up with a manager and was placed on hold for a lengthy period and then told the manager was out. She tried again within a few days and received the same lack of response. Defendants did not interview or hire Kyle.
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341. Zabriel Mack is Black. He applied to the Bossier City, Louisiana store around March 2007. He submitted a written application in person at the store to a White employee who was unreceptive to his application. He was told that someone would call him about his application, but he did not receive a call. Mack followed up twice. The first time he was told they had to find his application and then they would call him back. The second time they told him they found the application and would call him back. Defendants never called him back and did not hire him.
342. Corey Oliver is Black. He had retail experience when he applied to the Bossier City, Louisiana store around May 2006. He submitted a written application in person by handing it to a manager who looked at it in an odd way and said that someone would get back to him. Oliver made several follow up calls and despite his messages and the store’s promises to get back to him, no one ever called Oliver back about his application. Oliver never saw any Black employees at the store. He was not hired by Defendants.
343. Garrett Page is Black. He applied to the Bossier City, Louisiana store around April 2006 by submitting a written application to a manager at the store. During the entire time Page was in the store attempting to apply for a position, he was not permitted to sit down and was treated rudely. However, a White applicant who arrived while Page was waiting was treated well and was seated so he could complete the application. Page was never contacted or hired by Defendants.
344. Brian Parker is Black. He had stocking experience and fishing experience when he applied to the East Peoria, Illinois store in August 2011. He submitted a written application online and attended a job fair where he was turned away allegedly because it was “too full.” Parker called back to check the status of his online application. First, Parker was told they
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needed to look for his application. The next time he called, Parker was told all of the positions had been filled. He was not interviewed or hired by Defendants.
345. Ashley Robinson is Black. She had cashier experience when she applied to the Bossier City, Louisiana store around April 2006 by submitting her application to an employee at the store who informed her that someone would call her to discuss her application. Defendants did contact, interview, or hire Robinson.
346. LeDamien Rounds is Black. He applied to the Bossier City, Louisiana store multiple times, including in January 2007. He submitted a written application in person by giving it to a Customer Service Representative, who stated it would be given to the General Manager. Rounds then spoke with an employee who informed him that he would be called for an interview. After he did not receive a call from the store, Rounds called back to inquire about his application and was told that he would be called back. Again, Rounds did not hear about the status of his application. Defendants never hired Rounds.
347. Alonzo Spann is Black. He had relevant experience when he applied to the Pearl, Mississippi store twice: at a job fair in 2005 before the store opened and again in April 2006. Spann was interviewed by two managers who indicated they would get back with him, but they never did. Spann tried to follow up and was told that the store was still waiting to fill positions. Defendants never hired Spann.
348. Cartavian Shamp is Black. He applied at the Bossier City, Louisiana store around 2006 after being told that the store was hiring. Shamp submitted a written application in person at the store. Each time Shamp called to follow up on his application, he was informed that someone would call to let him know about the status of his application, yet no one ever called him back. Defendants did not hire Shamp.
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349. Pearl Tyler-Tate is Black. She had sales experience when she applied to the Pearl, Mississippi store in 2006 and again in July 2007. Both times she submitted a written application in person at the store. Both times she was told someone from Human Resources would call her about her application. Tyler-Tate called back several times and was told that the store was still interviewing and reviewing applications. She was never contacted, interviewed, or hired by Defendants.
350. Juan Taylor is Black. He had stocking experience and had some fishing and hunting experience when he applied to the Pearl, Mississippi store around July 2006 by submitting an application at the store. He asked to speak to a manager but was not given an opportunity to do so. The store employee he spoke to was not friendly and tried to brush him off by telling him that someone would get back with him about his application. When he did not receive a call back, Taylor attempted to check on the status of his application by e-mail and was told to check back by phone. Taylor called and was told that someone would get back with him. When he was not contacted, Taylor tried again by phone and was placed on extended hold. Taylor tried calling back a third time and was then told that the store was not hiring. Defendants did not hire Taylor.
351. Chrissy Wells is Black. She applied to the Pearl, Mississippi store around May 2007. Wells and her mother went to the store and were told that the store was hiring. She submitted a written application to an employee, who told Wells that they would give her a call as soon as something became available. Wells thought this was an odd comment as she was previously told the store were hiring. Wells attempted to follow up with her application on several occasions. She was told by the White manager that they were still looking and hiring and that someone would call her back. Defendants never contacted or hired Wells.
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352. Aleshia Williams is Black. She had sales and cashier experience when she applied to the Bossier City, Louisiana store around June 2006 by submitting a written application after seeing an online job advertisement. Williams was interviewed by a manager and was told they would get back with her. Williams followed up several times, and her calls were forwarded to several people who did not have any answers about her application. Defendants did not hire Williams.
353. Floyd Reed is Black. He worked at the Bluegreen section inside the Garland, Texas store where he marketed time shares for Bluegreen resorts. He applied for a position at the Garland store to work for Defendants. Reed spoke with the General Manager about his application, but the General Manager was noncommittal. At the time, there was only one Black employed in the whole store. Reed was never called for an interview and was never hired by Defendants.
354. Gerard Guy is Black. In March 2005, Guy applied to the Katy, Texas store. He had a phone interview with the Katy Store Human Resources Manager. Guy had attended a leadership program at the Marine Corps Institute and had extensive fishing and camping experience. During his in-person interview, Guy discussed his years of experience working in security, a state prison, and as a manager at Costco, where he handled loss prevention matters. The interviewer seemed uninterested and irritated at him during the interview. She told Guy that someone would call him back, but no one did. Guy followed up by calling the store multiple times and asking for the interviewer, but he was alternately told that she was out or was too busy to take his calls. Defendants did not hire Guy.
355. Johnny Thomas is Black. In 2007 or 2008, Thomas attended a job fair for the Pearland, Texas store and was interviewed. Despite Thomas' retail experience, he was not hired.
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Around January 2011, Thomas applied online with the Pearland store after seeing a job posting on Defendants’ website. Thomas was in the process of obtaining a masters’ degree in human resources management at the time. He left messages with the Store Human Resources Manager to check on the status of his application, but he was not called back. Defendants did not hire him.
356. Melanie Jackson is Black. She applied to the Macon, Georgia store in August 2006 after attending a job fair in July 2006. She was given the Orion test and she scored very well. She called once a week to follow up on her application, and was finally told that she “had to pay a fee to take a test to see if [she] qualified for any position.” The fee she was quoted was $85, which she initially did not have. She called back when she had the money to pay for the test, but was told that there were no jobs available. Defendants never hired Jackson.
357. Anthony Reid is Black. He had management, hunting, camping, and fishing experience when he submitted an application to the Grapevine, Texas store in July 2006 and applied online in August 2006. He spoke to Human Resources and to store management about his application and followed up by telephone and in-person visits to the store. He was always told that the store “didn’t have any positions for [him] yet.” In all his trips to the Grapevine store, he had never seen a Black employee. Defendants never hired Reid.
358. Reggie Smith is Black. He had fishing and camping experience and was a frequent customer when he applied at the Katy, Texas store in 2007 or 2008, after having previously applied in May 2005. He also had a bachelor’s degree when he applied. Defendants never hired Smith, but he later obtained a position at a competitor – Gander Mountain. Smith never saw a Black employee in Defendants’ Fishing Department during his many visits to the Katy store.
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359. Kouros Jackson is Black. At the time Jackson applied for a Cashier job at the Macon, Georgia store sometime in December 2006, he had worked for several years as a cashier and had outdoor experience. Jackson knew the store was hiring because his sister, who had worked as a cleaning contractor at the store, told him. He was never hired by Defendants. Sheena Bibbs is Black. She had outdoor experience as well as two years of cashier experience when she applied for a Cashier position at the Pearl, Mississippi store in June 2007. She was not hired by Defendants.
REPORTS PREPARED BY DEFENDANTS CONTAINING THE COMPOSITION OF THEIR WORKFORCE SHOW A PLAUSIBLE CLAIM OF HIRING DISCRIMINATION AGAINST HISPANICS
DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE HISPANIC EMPLOYEES 360. As stated above, during EEOC’s administrative investigation, Defendants produced hiring data for 24 of their retail stores. 361. According to the hiring data for 24 of Defendants’ retail stores that Defendants produced to EEOC during EEOC’s administrative investigation, out of a total 14,374 employees hired during the relevant time period, only 1,207 (8.4%) of the hires were Hispanic. 362. According to the hiring data for 24 of Defendants’ retail stores that Defendants produced to EEOC during EEOC’s administrative investigation, 17 (70.8%) of the 24 stores hired a lower percentage of Hispanic employees compared to the representation rate of Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Bossier City, Louisiana, store, where out of 255 employees hired from January 2005 through May 2007, only 6 (2.4%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county.
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b. Defendants’ Cincinnati, Ohio, store, where out of 285 employees hired from January 2005 through May 2007, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. c. Defendants’ Destin, Florida, store, where out of 430 employees hired from January 2005 through July 2009, only 11 (2.6%) were Hispanic, compared to a representation rate of 3.4% Hispanic employees in the county. d. Defendants’ Duluth, Georgia, store, where out of 640 employees hired from January 2005 through July 2009, only 7 (1.1%) were Hispanic, compared to a representation rate of 8.5% Hispanic employees in the county. e. Defendants’ Garland, Texas, store, where out of 216 employees hired from January 2005 through May 2007, only 12 (5.6%) were Hispanic, compared to a representation rate of 19.1% Hispanic employees in the county. f. Defendants’ Grapevine, Texas, store, where out of 285 employees hired from January 2005 through May 2007, only 10 (3.5%) were Hispanic, compared to a representation rate of 16.5% Hispanic employees in the county. g. Defendants’ Katy, Texas, store, where out of 306 employees hired from January 2005 through May 2007, only 28 (9.2%) were Hispanic, compared to a representation rate of 23.3% Hispanic employees in the county. h. Defendants’ Las Vegas, Nevada, store, where out of 867 employees hired from January 2005 through July 2009, only 84 (9.7%) were Hispanic, compared to a representation rate of 17.7% Hispanic employees in the county.
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i. Defendants’ Macon, Georgia, store, where out of 250 employees hired from January 2005 through May 2007, only 2 (.8%) were Hispanic, compared to a representation rate of 1.2% Hispanic employees in the county. j. Defendants’ Memphis, Tennessee, store, where out of 428 employees hired from January 2005 through July 2009, only 5 (1.2%) were Hispanic, compared to a representation rate of 2.4% Hispanic employees in the county. k. Defendants’ Myrtle Beach, South Carolina, store, where out of 783 employees hired from January 2005 through July 2009, only 13 (1.7%) were Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county. l. Defendants’ Nashville, Tennessee, store, where out of 839 employees hired from January 2005 through July 2009, only 11 (1.3%) were Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. m. Defendants’ Oklahoma City, Oklahoma, store, where out of 761 employees hired from January 2005 through July 2009, only 24 (3.2%) were Hispanic, compared to a representation rate of 5.8% Hispanic employees in the county. n. Defendants’ Orlando, Florida, store, where out of 946 employees hired from January 2005 through July 2009, only 94 (9.9%) were Hispanic, compared to a representation rate of 15.6% Hispanic employees in the county. o. Defendants’ Saint Charles, Missouri, store, where out of 643 employees hired from January 2005 through July 2009, only 2 (.3%) were Hispanic, compared to a representation rate of 1.1% Hispanic employees in the county.
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p. Defendants’ San Antonio, Texas, store, where out of 273 employees hired from January 2005 through May 2007, only 98 (35.9%) were Hispanic, compared to a representation rate of 48% Hispanic employees in the county. q. Defendants’ Savannah, Georgia, store, where out of 538 employees hired from January 2005 through March 2009, only 8 (1.5%) were Hispanic, compared to a representation rate of 2.1% Hispanic employees in the county. 363. Comparing the number of Hispanic employees hired (as specified in the hiring data for 24 of Defendants’ retail stores that Defendants produced to EEOC during EEOC’s administrative investigation) to the representation rate of Hispanic employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 187 Hispanic employees.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2007 364. According to Defendants’ 2007 EEO-1 reports, out of a total employment of 8,186 employees in 43 retail stores, only 656 (8%) employees were Hispanic. 365. According to Defendants’ 2007 EEO-1 reports, 36 (83.7%) of Defendants’ 43 retail stores had a lower percentage of Hispanic employees compared to the representation rate of Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Bolingbrook, Illinois, store, where out of 195 employees, only ten (5.1%) were Hispanic, compared to a representation rate of 9.5% Hispanic employees in the county.
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b. Defendants’ Bossier City, Louisiana, store, where out of 195 employees, only five (2.6%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county. c. Defendants’ Broken Arrow, Oklahoma, store, where out of 177 employees, only two (1.1%) were Hispanic, compared to a representation rate of 4.6% Hispanic employees in the county. d. Defendants’ Cincinnati, Ohio, store, where out of 229 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. e. Defendants’ Clarksville, Indiana, store, where out of 272 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. f. Defendants’ Concord, North Carolina, store, where out of 242 employees, only four (1.7%) were Hispanic, compared to a representation rate of 3.9% Hispanic employees in the county. g. Defendants’ Council Bluffs, Iowa, store, where out of 177 employees, not one was Hispanic, compared to a representation rate of 4.5% Hispanic employees in the county. h. Defendants’ Dania, Florida, store, where out of 255 employees, only 45 (17.6%) were Hispanic, compared to a representation rate of 17.7% Hispanic employees in the county.
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i. Defendants’ Denver, Colorado, store, where out of 241 employees, only 25 (10.4%) were Hispanic, compared to a representation rate of 17.3% Hispanic employees in the county. j. Defendants’ Destin, Florida, store, where out of 108 employees, only two (1.9%) were Hispanic, compared to a representation rate of 3.4% Hispanic employees in the county. k. Defendants’ Duluth, Georgia, store, where out of 208 employees, only four (1.9%) were Hispanic, compared to a representation rate of 8.5% Hispanic employees in the county. l. Defendants’ Ft. Myers, Florida, store, where out of 190 employees, only four (2.1%) were Hispanic, compared to a representation rate of 9.2% Hispanic employees in the county. m. Defendants’ Garland, Texas, store, where out of 139 employees, only ten (7.2%) were Hispanic, compared to a representation rate of 19.1% Hispanic employees in the county. n. Defendants’ Grapevine, Texas, store, where out of 300 employees, only 33 (11%) were Hispanic, compared to a representation rate of 16.5% Hispanic employees in the county. o. Defendants’ Gurnee, Illinois, store, where out of 211 employees, only seven (3.3%) were Hispanic, compared to a representation rate of 13.1% Hispanic employees in the county.
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p. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 employees, only four (1.7%) were Hispanic, compared to a representation rate of 2.2% Hispanic employees in the county. q. Defendants’ Islamorada, Florida, store, where out of 63 employees, only four (6.3%) were Hispanic, compared to a representation rate of 15.5% Hispanic employees in the county. r. Defendants’ Katy, Texas, store, where out of 143 employees, only 25 (16.8%) were Hispanic, compared to a representation rate of 23.3% Hispanic employees in the county. s. Defendants’ Kodak, Tennessee, store, where out of 217 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. t. Defendants’ Las Vegas, Nevada, store, where out of 210 employees, only 15 (7.1%) were Hispanic, compared to a representation rate of 17.7% Hispanic employees in the county. u. Defendants’ Macon, Georgia, store, where out of 156 employees, only one (.6%) was Hispanic, compared to a representation rate of 1.2% Hispanic employees in the county. v. Defendants’ Memphis, Tennessee, store, where out of 143 employees, not one was Hispanic, compared to a representation rate of 2.4% Hispanic employees in the county.
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w. Defendants’ Mesa, Arizona, store, where out of 187 employees, only 14 (7.5%) were Hispanic, compared to a representation rate of 19.6% Hispanic employees in the county. x. Defendants’ Myrtle Beach, South Carolina, store, where out of 151 employees, not one was Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county. y. Defendants’ Nashville, Tennessee, store, where out of 200 employees, store, only three (1.5%) were Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. z. Defendants’ Oklahoma City, Oklahoma, store, where out of 155 employees, only two (1.3%) were Hispanic, compared to a representation rate of 5.8% Hispanic employees in the county. aa. Defendants’ Olathe, Kansas, store, where out of 174 employees, only six (3.4%) were Hispanic, compared to a representation rate of 4.8% Hispanic employees in the county. bb. Defendants’ Orlando, Florida, store, where out of 277 employees, only 24 (8.7%) were Hispanic, compared to a representation rate of 15.6% Hispanic employees in the county. cc. Defendants’ Pearl, Mississippi, store, where out of 164 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county.
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dd. Defendants’ Pearland, Texas, store, where out of 205 employees, only 24 (11.7%) were Hispanic, compared to a representation rate of 20.6% Hispanic employees in the county. ee. Defendants’ Portage, Indiana, store, where out of 200 employees, only six (3%) were Hispanic, compared to a representation rate of 4% Hispanic employees in the county. ff. Defendants’ Prattville, Alabama, store, where out of 193 employees, only one (.5%) was Hispanic, compared to a representation rate of .9% Hispanic employees in the county. gg. Defendants’ Rancho Cucamonga, California, store, where out of 305 employees, only 102 (33.4%) were Hispanic, compared to a representation rate of 33.9% Hispanic employees in the county. hh. Defendants’ Saint Charles, Missouri, store, where out of 224 employees, only one (.4%) was Hispanic, compared to a representation rate of 1.1% Hispanic employees in the county. ii. Defendants’ San Antonio, Texas, store, where out of 197 employees, only 90 (45.7%) were Hispanic, compared to a representation rate of 48% Hispanic employees in the county. jj. Defendants’ Savannah, Georgia, store, where out of 147 employees, not one was Hispanic, compared to a representation rate of 2.1% Hispanic employees in the county. 366. Comparing the number of Hispanic employees employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of
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Hispanic employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 224 Hispanic employees in 2007.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2008 367. According to Defendants’ 2008 EEO-1 reports, out of a total employment of 8,410 employees in 49 retail stores, only 504 (6%) employees were Hispanic. 368. According to Defendants’ 2008 EEO-1 reports, 43 (87.8%) of Defendants’ 49 retail stores had a lower percentage of Hispanic employees compared to the representation rate of Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Ashland, Virginia, store, where out of 171 employees, only three (1.8%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county. b. Defendants’ Bolingbrook, Illinois, store, where out of 177 employees, only five (2.8%) were Hispanic, compared to a representation rate of 9.5% Hispanic employees in the county. c. Defendants’ Bossier City, Louisiana, store, where out of 171 employees, only four (2.3%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county. d. Defendants’ Branson, Missouri, store, where out of 101 employees, only one (1%) was Hispanic, compared to a representation rate of 1.7% Hispanic employees in the county.
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e. Defendants’ Broken Arrow, Oklahoma, store, where out of 212 employees, only four (1.9%) were Hispanic, compared to a representation rate of 4.6% Hispanic employees in the county. f. Defendants’ Cincinnati, Ohio, store, where out of 222 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. g. Defendants’ Clarksville, Indiana, store, where out of 223 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. h. Defendants’ Columbia, Missouri, store, where out of 98 employees, only one (1%) was Hispanic, compared to a representation rate of 1.3% Hispanic employees in the county. i. Defendants’ Concord, North Carolina, store, where out of 196 employees, only two (1%) were Hispanic, compared to a representation rate of 3.9% Hispanic employees in the county. j. Defendants’ Council Bluffs, Iowa, store, where out of 165 employees, only one (.6%) was Hispanic, compared to a representation rate of 4.5% Hispanic employees in the county. k. Defendants’ Dania, Florida, store, where out of 229 employees, only 39 (17%) were Hispanic, compared to a representation rate of 17.7% Hispanic employees in the county.
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l. Defendants’ Denham Springs, Louisiana, store, where out of 166 employees, only one (.6%) was Hispanic, compared to a representation rate of .8% Hispanic employees in the county. m. Defendants’ Denver, Colorado, store, where out of 198 employees, only 18 (9.1%) were Hispanic, compared to a representation rate of 17.3% Hispanic employees in the county. n. Defendants’ Destin, Florida, store, where out of 99 employees, only two (2%) were Hispanic, compared to a representation rate of 3.4% Hispanic employees in the county. o. Defendants’ Duluth, Georgia, store, where out of 193 employees, only two (1%) were Hispanic, compared to a representation rate of 8.5% Hispanic employees in the county. p. Defendants’ Foxborough, Massachusetts, store, where out of 207 employees, only three (1.4%) were Hispanic, compared to a representation rate of 2.5% Hispanic employees in the county. q. Defendants’ Ft. Myers, Florida, store, where out of 172 employees, only four (2.3%) were Hispanic, compared to a representation rate of 9.2% Hispanic employees in the county. r. Defendants’ Garland, Texas, store, where out of 123 employees, only ten (8.1%) were Hispanic, compared to a representation rate of 19.1% Hispanic employees in the county.
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s. Defendants’ Grapevine, Texas, store, where out of 291 employees, only 32 (11%) were Hispanic, compared to a representation rate of 16.5% Hispanic employees in the county. t. Defendants’ Gurnee, Illinois, store, where out of 175 employees, only three (1.7%) were Hispanic, compared to a representation rate of 13.1% Hispanic employees in the county. u. Defendants’ Hanover, Maryland, store, where out of 221 employees, only four (1.8%) were Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county. v. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 employees, only three (1.3%) were Hispanic, compared to a representation rate of 2.2% Hispanic employees in the county. w. Defendants’ Independence, Missouri, store, where out of 166 employees, only two (1.2%) were Hispanic, compared to a representation rate of 3.8% Hispanic employees in the county. x. Defendants’ Islamorada, Florida, store, where out of 61 employees, only five (8.2%) were Hispanic, compared to a representation rate of 15.5% Hispanic employees in the county. y. Defendants’ Katy, Texas, store, where out of 129 employees, only 13 (10.1%) were Hispanic, compared to a representation rate of 23.3% Hispanic employees in the county.
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z. Defendants’ Las Vegas, Nevada, store, where out of 195 employees, only 19 (9.7%) were Hispanic, compared to a representation rate of 17.7% Hispanic employees in the county. aa. Defendants’ Macon, Georgia, store, where out of 158 employees, only one (.6%) was Hispanic, compared to a representation rate of 1.2% Hispanic employees in the county. bb. Defendants’ Memphis, Tennessee, store, where out of 125 employees, only one (.8%) was Hispanic, compared to a representation rate of 2.4% Hispanic employees in the county. cc. Defendants’ Mesa, Arizona, store, where out of 154 employees, only 16 (10.4%) were Hispanic, compared to a representation rate of 19.6% Hispanic employees in the county. dd. Defendants’ Myrtle Beach, South Carolina, store, where out of 136 employees, not one was Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county. ee. Defendants’ Nashville, Tennessee, store, where out of 196 employees, only two (1%) were Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. ff. Defendants’ Oklahoma City, Oklahoma, store, where out of 130 employees, only three (2.3%) were Hispanic, compared to a representation rate of 5.8% Hispanic employees in the county.
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gg. Defendants’ Olathe, Kansas, store, where out of 156 employees, only four (2.6%) were Hispanic, compared to a representation rate of 4.8% Hispanic employees in the county. hh. Defendants’ Orlando, Florida, store, where out of 224 employees, only 19 (8.5%) were Hispanic, compared to a representation rate of 15.6% Hispanic employees in the county. ii. Defendants’ Pearl, Mississippi, store, where out of 153 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. jj. Defendants’ Pearland, Texas, store, where out of 123 employees, only 19 (15.4%) were Hispanic, compared to a representation rate of 20.6% Hispanic employees in the county. kk. Defendants’ Portage, Indiana, store, where out of 157 employees, only five (3.2%) were Hispanic, compared to a representation rate of 4% Hispanic employees in the county. ll. Defendants’ Prattville, Alabama, store, where out of 187 employees, only one (.5%) was Hispanic, compared to a representation rate of .9% Hispanic employees in the county. mm. Defendants’ Rancho Cucamonga, California, store, where out of 260 employees, only 71 (27.3%) were Hispanic, compared to a representation rate of 33.9% Hispanic employees in the county.
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nn. Defendants’ Saint Charles, Missouri, store, where out of 184 employees, only one (.5%) was Hispanic, compared to a representation rate of 1.1% Hispanic employees in the county. oo. Defendants’ San Antonio, Texas, store, where out of 179 employees, only 75 (41.9%) were Hispanic, compared to a representation rate of 48% Hispanic employees in the county. pp. Defendants’ Savannah, Georgia, store, where out of 118 employees, only one (.8%) was Hispanic, compared to a representation rate of 2.1% Hispanic employees in the county. qq. Defendants’ Spanish Fort, Alabama, store, where out of 197 employees, only one (.5%) was Hispanic, compared to a representation rate of 1.8% Hispanic employees in the county. 369. Comparing the number of Hispanic employees employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Hispanic employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 254 Hispanic employees in 2008.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2009 370. According to Defendants’ 2009 EEO-1 reports, out of a total employment of 8,561 employees in 52 retail stores, only 498 (5.8%) employees were Hispanic. 371. According to Defendants’ 2009 EEO-1 reports, 44 (84.6%) of Defendants’ 52 retail stores had a lower percentage of Hispanic employees compared to the representation rate of
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Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Altoona, Iowa, store, where out of 208 employees, only two (1%) were Hispanic, compared to a representation rate of 2.9% Hispanic employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 202 employees, only two (1%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 168 employees, only six (3.6%) were Hispanic, compared to a representation rate of 9.5% Hispanic employees in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 166 employees, only four (2.4%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county. e. Defendants’ Branson, Missouri, store, where out of 97 employees, not one was Hispanic, compared to a representation rate of 1.7% Hispanic employees in the county. f. Defendants’ Broken Arrow, Oklahoma, store, where out of 210 employees, only eight (3.8%) were Hispanic, compared to a representation rate of 4.6% Hispanic employees in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 220 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county.
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h. Defendants’ Clarksville, Indiana, store, where out of 223 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. i. Defendants’ Columbia, Missouri, store, where out of 74 employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic employees in the county. j. Defendants’ Concord, North Carolina, store, where out of 189 employees, only three (1.6%) were Hispanic, compared to a representation rate of 3.9% Hispanic employees in the county. k. Defendants’ Council Bluffs, Iowa, store, where out of 172 employees, only one (.6%) was Hispanic, compared to a representation rate of 4.5% Hispanic employees in the county. l. Defendants’ Denham Springs, Louisiana, store, where out of 160 employees, only one (.6%) was Hispanic, compared to a representation rate of .8% Hispanic employees in the county. m. Defendants’ Denver, Colorado, store, where out of 216 employees, only 21 (9.7%) were Hispanic, compared to a representation rate of 17.3% Hispanic employees in the county. n. Defendants’ Destin, Florida, store, where out of 100 employees, only two (2%) were Hispanic, compared to a representation rate of 3.4% Hispanic employees in the county.
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o. Defendants’ Duluth, Georgia, store, where out of 182 employees, only one (.5%) was Hispanic, compared to a representation rate of 8.5% Hispanic employees in the county. p. Defendants’ Foxborough, Massachusetts, store, where out of 188 employees, only one (.5%) was Hispanic, compared to a representation rate of 2.5% Hispanic employees in the county. q. Defendants’ Ft. Myers, Florida, store, where out of 161 employees, only three (1.9%) were Hispanic, compared to a representation rate of 9.2% Hispanic employees in the county. r. Defendants’ Garland, Texas, store, where out of 115 employees, only seven (6.1%) were Hispanic, compared to a representation rate of 19.1% Hispanic employees in the county. s. Defendants’ Grapevine, Texas, store, where out of 242 employees, only 30 (12.4%) were Hispanic, compared to a representation rate of 16.5% Hispanic employees in the county. t. Defendants’ Gurnee, Illinois, store, where out of 144 employees, only one (.7%) was Hispanic, compared to a representation rate of 13.1% Hispanic employees in the county. u. Defendants’ Hanover, Maryland, store, where out of 214 employees, only three (1.4%) were Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county.
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v. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 employees, only three (1.5%) were Hispanic, compared to a representation rate of 2.2% Hispanic employees in the county. w. Defendants’ Independence, Missouri, store, where out of 149 employees, not one was Hispanic, compared to a representation rate of 3.8% Hispanic employees in the county. x. Defendants’ Islamorada, Florida, store, where out of 55 employees, only four (7.3%) were Hispanic, compared to a representation rate of 15.5% Hispanic employees in the county. y. Defendants’ Katy, Texas, store, where out of 125 employees, only 15 (12%) were Hispanic, compared to a representation rate of 23.3% Hispanic employees in the county. z. Defendants’ Las Vegas, Nevada, store, where out of 164 employees, only 16 (9.8%) were Hispanic, compared to a representation rate of 17.7% Hispanic employees in the county. aa. Defendants’ Leeds, Alabama, store, where out of 218 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. bb. Defendants’ Macon, Georgia, store, where out of 137 employees, only one (.7%) was Hispanic, compared to a representation rate of 1.2% Hispanic employees in the county.
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cc. Defendants’ Manteca, California, store, where out of 186 employees, only 24 (12.9%) were Hispanic, compared to a representation rate of 26.3% Hispanic employees in the county. dd. Defendants’ Memphis, Tennessee, store, where out of 131 employees, only 3 (2.3%) were Hispanic, compared to a representation rate of 2.4% Hispanic employees in the county. ee. Defendants’ Mesa, Arizona, store, where out of 155 employees, only 14 (9%) were Hispanic, compared to a representation rate of 19.6% Hispanic employees in the county. ff. Defendants’ Myrtle Beach, South Carolina, store, where out of 131 employees, not one was Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county. gg. Defendants’ Nashville, Tennessee, store, where out of 181 employees, not one was Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. hh. Defendants’ Oklahoma City, Oklahoma, store, where out of 146 employees, not one was Hispanic, compared to a representation rate of 5.8% Hispanic employees in the county. ii. Defendants’ Olathe, Kansas, store, where out of 128 employees, only three (2.3%) were Hispanic, compared to a representation rate of 4.8% Hispanic employees in the county.
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jj. Defendants’ Orlando, Florida, store, where out of 214 employees, only 16 (7.5%) were Hispanic, compared to a representation rate of 15.6% Hispanic employees in the county. kk. Defendants’ Pearl, Mississippi, store, where out of 159 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. ll. Defendants’ Pearland, Texas, store, where out of 124 employees, only 21 (16.9%) were Hispanic, compared to a representation rate of 20.6% Hispanic employees in the county. mm. Defendants’ Prattville, Alabama, store, where out of 148 employees, only one (.7%) was Hispanic, compared to a representation rate of .9% Hispanic employees in the county. nn. Defendants’ Rancho Cucamonga, California, store, where out of 260 employees, only 61 (23.5%) were Hispanic, compared to a representation rate of 33.9% Hispanic employees in the county. oo. Defendants’ Saint Charles, Missouri, store, where out of 187 employees, only one (.5%) was Hispanic, compared to a representation rate of 1.1% Hispanic employees in the county. pp. Defendants’ San Antonio, Texas, store, where out of 154 employees, only 68 (44.2%) were Hispanic, compared to a representation rate of 48% Hispanic employees in the county.
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qq. Defendants’ Savannah, Georgia, store, where out of 117 employees, only one (.9%) was Hispanic, compared to a representation rate of 2.1% Hispanic employees in the county. rr. Defendants’ Spanish Fort, Alabama, store, where out of 177 employees, not one was Hispanic, compared to a representation rate of 1.8% Hispanic employees in the county. 372. Comparing the number of Hispanic employees employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 275 Hispanic employees in 2009.
Defendants’ Discriminatory Failure to Hire Hispanic Employees at Defendants’ Retail Stores in 2010 373. According to Defendants’ 2010 EEO-1 reports, out of a total employment of 8,839 employees in 52 retail stores, only 550 (6.2%) employees were Hispanic. 374. According to Defendants’ 2010 EEO-1 reports, 44 (84.6%) of Defendants’ 52 retail stores had a lower percentage of Hispanic employees compared to the representation rate of Hispanic employees in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 189 employees, only two (1.1%) were Hispanic, compared to a representation rate of 2.9% Hispanic employees in the county.
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b. Defendants’ Ashland, Virginia, store, where out of 190 employees, only two (1.1%) were Hispanic, compared to a representation rate of 2.7% Hispanic employees in the county. c. Defendants’ Auburn, New York, store, where out of 139 employees, only one (.7%) was Hispanic, compared to a representation rate of 1.4% Hispanic employees in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 170 employees, only four (2.4%) were Hispanic, compared to a representation rate of 9.5% Hispanic employees in the county. e. Defendants’ Branson, Missouri, store, where out of 105 employees, not one was Hispanic, compared to a representation rate of 1.7% Hispanic employees in the county. f. Defendants’ Broken Arrow, Oklahoma, store, where out of 215 employees, only six (2.8%) were Hispanic, compared to a representation rate of 4.6% Hispanic employees in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 208 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. h. Defendants’ Clarksville, Indiana, store, where out of 234 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county.
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i. Defendants’ Columbia, Missouri, store, where out of 98 employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic employees in the county. j. Defendants’ Concord, North Carolina, store, where out of 203 employees, only three (1.5%) were Hispanic, compared to a representation rate of 3.9% Hispanic employees in the county. k. Defendants’ Council Bluffs, Iowa, store, where out of 190 employees, only four (2.1%) were Hispanic, compared to a representation rate of 4.5% Hispanic employees in the county. l. Defendants’ Denham Springs, Louisiana, store, where out of 163 employees, only one (.6%) was Hispanic, compared to a representation rate of .8% Hispanic employees in the county. m. Defendants’ Denver, Colorado, store, where out of 206 employees, only 19 (9.2%) were Hispanic, compared to a representation rate of 17.3% Hispanic employees in the county. n. Defendants’ Destin, Florida, store, where out of 106 employees, only three (2.8%) were Hispanic, compared to a representation rate of 3.4% Hispanic employees in the county. o. Defendants’ Duluth, Georgia, store, where out of 183 employees, only four (2.2%) were Hispanic, compared to a representation rate of 8.5% Hispanic employees in the county.
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p. Defendants’ Foxborough, Massachusetts, store, where out of 190 employees, only one (.5%) was Hispanic, compared to a representation rate of 2.5% Hispanic employees in the county. q. Defendants’ Ft. Myers, Florida, store, where out of 157 employees, only seven (4.5%) were Hispanic, compared to a representation rate of 9.2% Hispanic employees in the county. r. Defendants’ Garland, Texas, store, where out of 134 employees, only nine (6.7%) were Hispanic, compared to a representation rate of 19.1% Hispanic employees in the county. s. Defendants’ Grapevine, Texas, store, where out of 290 employees, only 20 (10%) were Hispanic, compared to a representation rate of 16.5% Hispanic employees in the county. t. Defendants’ Gurnee, Illinois, store, where out of 159 employees, not one was Hispanic, compared to a representation rate of 13.1% Hispanic employees in the county. u. Defendants’ Hampton, Virginia, store, where out of 155 employees, only three (1.9%) were Hispanic, compared to a representation rate of 2% Hispanic employees in the county. v. Defendants’ Hanover, Maryland, store, where out of 225 employees, only two (.9%) were Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county.
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w. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 employees, only three (1.5%) were Hispanic, compared to a representation rate of 2.2% Hispanic employees in the county. x. Defendants’ Independence, Missouri, store, where out of 153 employees, not one was Hispanic, compared to a representation rate of 3.8% Hispanic employees in the county. y. Defendants’ Islamorada, Florida, store, where out of 57 employees, only six (10.5%) were Hispanic, compared to a representation rate of 15.5% Hispanic employees in the county. z. Defendants’ Katy, Texas, store, where out of 120 employees, only 12 (10%) were Hispanic, compared to a representation rate of 23.3% Hispanic employees in the county. aa. Defendants’ Las Vegas, Nevada, store, where out of 155 employees, only 17 (11%) were Hispanic, compared to a representation rate of 17.7% Hispanic employees in the county. bb. Defendants’ Leeds, Alabama, store, where out of 182 employees, not one was Hispanic, compared to a representation rate of 1.6% Hispanic employees in the county. cc. Defendants’ Manteca, California, store, where out of 225 employees, only 31 (13.8%) were Hispanic, compared to a representation rate of 26.3% Hispanic employees in the county.
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dd. Defendants’ Memphis, Tennessee, store, where out of 136 employees, only two (1.5%) were Hispanic, compared to a representation rate of 2.4% Hispanic employees in the county. ee. Defendants’ Mesa, Arizona, store, where out of 154 employees, only 14 (9.1%) were Hispanic, compared to a representation rate of 19.6% Hispanic employees in the county. ff. Defendants’ Myrtle Beach, South Carolina, store, where out of 135 employees, only one (.7%) was Hispanic, compared to a representation rate of 2.8% Hispanic employees in the county. gg. Defendants’ Nashville, Tennessee, store, where out of 180 employees, only three (1.7%) were Hispanic, compared to a representation rate of 3.3% Hispanic employees in the county. hh. Defendants’ Oklahoma City, Oklahoma, store, where out of 152 employees, only one (.7%) was Hispanic, compared to a representation rate of 5.8% Hispanic employees in the county. ii. Defendants’ Olathe, Kansas, store, where out of 134 employees, only four (3%) were Hispanic, compared to a representation rate of 4.8% Hispanic employees in the county. jj. Defendants’ Orlando, Florida, store, where out of 205 employees, only 12 (5.9%) were Hispanic, compared to a representation rate of 15.6% Hispanic employees in the county.
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kk. Defendants’ Pearl, Mississippi, store, where out of 149 employees, not one was Hispanic, compared to a representation rate of 1% Hispanic employees in the county. ll. Defendants’ Pearland, Texas, store, where out of 150 employees, only 27 (18%) were Hispanic, compared to a representation rate of 20.6% Hispanic employees in the county. mm. Defendants’ Prattville, Alabama, store, where out of 130 employees, not one was Hispanic, compared to a representation rate of .9% Hispanic employees in the county. nn. Defendants’ Rancho Cucamonga, California, store, where out of 281 employees, only 62 (22.1%) were Hispanic, compared to a representation rate of 33.9% Hispanic employees in the county. oo. Defendants’ Rossford, Ohio, store, where out of 167 employees, only 6 (3.6%) were Hispanic, compared to a representation rate of 3.7% Hispanic employees in the county. pp. Defendants’ Saint Charles, Missouri, store, where out of 190 employees, only one (.5%) was Hispanic, compared to a representation rate of 1.1% Hispanic employees in the county. qq. Defendants’ Savannah, Georgia, store, where out of 113 employees, not one was Hispanic, compared to a representation rate of 2.1% Hispanic employees in the county.
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rr. Defendants’ Spanish Fort, Alabama, store, where out of 192 employees, not one was Hispanic, compared to a representation rate of 1.8% Hispanic employees in the county. 375. Comparing the number of Hispanic employees employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports) for 52 retail stores to the representation rate of Hispanic employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 281 Hispanic employees in 2010. DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE HISPANIC MANAGERS
Defendants’ Discriminatory Failure to Hire Hispanic Managers at Defendants’ Retail Stores in 2007 376. According to Defendants’ 2007 EEO-1 reports, out of a total employment of 8,186 employees in 43 retail stores, 606 (7.4%) employees were managers. 377. According to Defendants’ 2007 EEO-1 reports, out of 606 managers in Defendants’ 43 retail stores, only 33 (5.4%) were Hispanic. 378. According to Defendants’ 2007 EEO-1 reports, 35 (81.4%) of Defendants’ 43 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located, as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county.
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b. Defendants’ Auburn Hills, Michigan store where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. e. Defendants’ Branson, Missouri, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. f. Defendants’ Broken Arrow, Oklahoma, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 2.3 % Hispanic managers in the county. g. Defendants’ Cincinnati, Ohio, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. h. Defendants’ Clarksville, Indiana, store, where out of 16 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county.
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i. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county. j. Defendants’ Concord, North Carolina, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. k. Defendants’ Council Bluffs, Iowa, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. l. Defendants’ Dania, Florida, store, where out of 15 managers, only two (13.3%) were Hispanic, compared to a representation rate of 14.1% Hispanic managers in the county. m. Defendants’ Destin, Florida, store, where out of 10 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. n. Defendants’ Duluth, Georgia, store, where out of 16 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. o. Defendants’ Ft. Myers, Florida, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county.
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p. Defendants’ Garland, Texas, store, where out of 14 managers, only one (7.1%) was Hispanic, compared to a representation rate of 8% Hispanic managers in the county. q. Defendants’ Grapevine, Texas, store, where out of 21 managers, only one (4.8%) was Hispanic, compared to a representation rate of 7.7% Hispanic managers in the county. r. Defendants’ Gurnee, Illinois, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. s. Defendants’ Hampton, Virginia, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county. t. Defendants’ Hanover, Maryland, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. u. Defendants’ Harrisburg, Pennsylvania, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. v. Defendants’ Kodak, Tennessee, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county.
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w. Defendants’ Las Vegas, Nevada, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 7.3% Hispanic managers in the county. x. Defendants’ Macon, Georgia, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county. y. Defendants’ Memphis, Tennessee, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.3% Hispanic managers in the county. z. Defendants’ Myrtle Beach, South Carolina, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county. aa. Defendants’ Nashville, Tennessee, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county. bb. Defendants’ Oklahoma City, Oklahoma, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 3.1% Hispanic managers in the county. cc. Defendants’ Olathe, Kansas, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county.
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dd. Defendants’ Orlando, Florida, store, where out of 17 managers, only one (5.9%) was Hispanic, compared to a representation rate of 8.6% Hispanic managers in the county. ee. Defendants’ Pearl, Mississippi, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of .5% Hispanic managers in the county. ff. Defendants’ Portage, Indiana, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 3% Hispanic managers in the county. gg. Defendants’ Rancho Cucamonga, California, store, where out of 20 managers, only three (15%) were Hispanic, compared to a representation rate of 19.3% Hispanic managers in the county. hh. Defendants’ Saint Charles, Missouri, store, where out of 16 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. ii. Defendants’ Savannah, Georgia, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. 379. Comparing the number of Hispanic managers employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 3 Hispanic managers in 2007.
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Defendants’ Discriminatory Failure to Hire Hispanic Managers at Defendants’ Retail Stores in 2008 380. According to Defendants’ 2008 EEO-1 reports, out of a total employment of 8,410 employees in 49 retail stores, 630 (7.5%) employees were managers. 381. According to Defendants’ 2008 EEO-1 reports, out of 630 managers in Defendants’ 49 retail stores, only 28 (4.4%) were Hispanic. 382. According to Defendants’ 2008 EEO-1 reports, 41 (83.7%) of Defendants’ 49 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Ashland, Virginia, store, where out of 10 managers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. b. Defendants’ Auburn, New York, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county. c. Defendants’ Auburn Hills, Michigan store where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. d. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county.
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e. Defendants’ Bossier City, Louisiana, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. f. Defendants’ Branson, Missouri, store, where out of nine managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. g. Defendants’ Broken Arrow, Oklahoma, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 2.3% Hispanic managers in the county. h. Defendants’ Cincinnati, Ohio, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. i. Defendants’ Clarksville, Indiana, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. j. Defendants’ Columbia, Missouri, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county. k. Defendants’ Concord, North Carolina, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county.
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l. Defendants’ Council Bluffs, Iowa, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. m. Defendants’ Dania, Florida, store, where out of 15 managers, only two (13.3%) was Hispanic, compared to a representation rate of 14.1% Hispanic managers in the county. n. Defendants’ Destin, Florida, store, where out of nine managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. o. Defendants’ Duluth, Georgia, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. p. Defendants’ Foxborough, Massachusetts, store, where out of 16 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county. q. Defendants’ Ft. Myers, Florida, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county. r. Defendants’ Grapevine, Texas, store, where out of 19 managers, only one (5.3%) was Hispanic, compared to a representation rate of 7.7% Hispanic managers in the county.
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s. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. t. Defendants’ Hampton, Virginia, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county. u. Defendants’ Hanover, Maryland, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. v. Defendants’ Harrisburg, Pennsylvania, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. w. Defendants’ Independence, Missouri, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. x. Defendants’ Katy, Texas, store, where out of 11 managers, only one (9.1%) was Hispanic, compared to a representation rate of 10.1% Hispanic managers in the county. y. Defendants’ Kodak, Tennessee, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county.
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z. Defendants’ Las Vegas, Nevada, store, where out of 14 managers, only one (7.1%) was Hispanic, compared to a representation rate of 7.3% Hispanic managers in the county. aa. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county. bb. Defendants’ Memphis, Tennessee, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.3% Hispanic managers in the county. cc. Defendants’ Miami, Florida, store, where out of 12 managers, only five (41.7%) were Hispanic, compared to a representation rate of 49.6% Hispanic managers in the county dd. Defendants’ Myrtle Beach, South Carolina, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county. ee. Defendants’ Nashville, Tennessee, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county. ff. Defendants’ Oklahoma City, Oklahoma, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.1% Hispanic managers in the county.
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gg. Defendants’ Olathe, Kansas, store, where out of 14 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. hh. Defendants’ Orlando, Florida, store, where out of 17 managers, not one was Hispanic, compared to a representation rate of 8.6% Hispanic managers in the county. ii. Defendants’ Pearl, Mississippi, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .5% Hispanic managers in the county. jj. Defendants’ Portage, Indiana, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3% Hispanic managers in the county. kk. Defendants’ Rancho Cucamonga, California, store, where out of 15 managers, only one (6.7%) was Hispanic, compared to a representation rate of 19.3% Hispanic managers in the county. ll. Defendants’ Rossford, Ohio, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.8% Hispanic managers in the county. mm. Defendants’ Saint Charles, Missouri, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county.
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nn. Defendants’ Savannah, Georgia, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. oo. Defendants’ Spanish Fort, Alabama, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .8 % Hispanic managers in the county. 383. Comparing the number of Hispanic managers employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 6 Hispanic managers in 2008.
Defendants’ Discriminatory Failure to Hire Hispanic Managers at Defendants’ Retail Stores in 2009 384. According to Defendants’ 2009 EEO-1 reports, out of a total employment of 8,561 employees in 52 retail stores, 588 (6.9%) employees were managers. 385. According to Defendants’ 2009 EEO-1 reports, out of 588 managers in Defendants’ 52 retail stores, only 27 (4.6%) were Hispanic. 386. According to Defendants’ 2009 EEO-1 reports, 42 (80.8%) of Defendants’ 52 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county.
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b. Defendants’ Ashland, Virginia, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. c. Defendants’ Auburn, New York, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county. d. Defendants’ Auburn Hills, Michigan store where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. e. Defendants’ Bolingbrook, Illinois, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. f. Defendants’ Bossier City, Louisiana, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. g. Defendants’ Branson, Missouri, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. h. Defendants’ Broken Arrow, Oklahoma, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 2.3% Hispanic managers in the county.
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i. Defendants’ Cincinnati, Ohio, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. j. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. k. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county. l. Defendants’ Concord, North Carolina, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. m. Defendants’ Council Bluffs, Iowa, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. n. Defendants’ Dania, Florida, store, where out of 13 managers, only one (7.7%) was Hispanic, compared to a representation rate of 14.1% Hispanic managers in the county. o. Defendants’ Denver, Colorado, store, where out of 13 managers, only one (7.7%) was Hispanic, compared to a representation rate of 8.2% Hispanic managers in the county.
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p. Defendants’ Destin, Florida, store, where out of nine managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. q. Defendants’ Duluth, Georgia, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county. s. Defendants’ Ft. Myers, Florida, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county. t. Defendants’ Grapevine, Texas, store, where out of 16 managers, only one (6.3%) was Hispanic, compared to a representation rate of 7.7% Hispanic managers in the county. u. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. v. Defendants’ Hampton, Virginia, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county.
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w. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. x. Defendants’ Harrisburg, Pennsylvania, store, where out of nine managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. y. Defendants’ Independence, Missouri, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. z. Defendants’ Kodak, Tennessee, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county. aa. Defendants’ Leeds, Alabama, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .8% Hispanic managers in the county. bb. Defendants’ Macon, Georgia, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county. cc. Defendants’ Manteca, California, store, where out of 12 managers, only one (8.3%) was Hispanic, compared to a representation rate of 12.6% Hispanic managers in the county.
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dd. Defendants’ Miami, Florida, store, where out of 11 managers, only five (45.5%) were Hispanic, compared to a representation rate of 49.6% Hispanic managers in the county. ee. Defendants’ Myrtle Beach, South Carolina, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county. ff. Defendants’ Nashville, Tennessee, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county. gg. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.1% Hispanic managers in the county. hh. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. ii. Defendants’ Orlando, Florida, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 8.6% Hispanic managers in the county. jj. Defendants’ Pearl, Mississippi, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .5% Hispanic managers in the county.
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kk. Defendants’ Portage, Indiana, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3% Hispanic managers in the county. ll. Defendants’ Rancho Cucamonga, California, store, where out of 12 managers, only two (16.7%) was Hispanic, compared to a representation rate of 19.3% Hispanic managers in the county. mm. Defendants’ Rossford, Ohio, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.8% Hispanic managers in the county. nn. Defendants’ Saint Charles, Missouri, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. oo. Defendants’ Savannah, Georgia, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. pp. Defendants’ Spanish Fort, Alabama, store, where out of ten managers, not one was Hispanic, compared to a representation rate of .8 % Hispanic managers in the county. 387. Comparing the number of Hispanic managers employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 3 Hispanic managers in 2009.
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Defendants’ Discriminatory Failure to Hire Hispanic Managers at Defendants’ Retail Stores in 2010 388. According to Defendants’ 2010 EEO-1 reports, out of a total employment of 8,839 employees in 52 retail stores, 586 (6.6%) employees were managers. 389. According to Defendants’ 2010 EEO-1 reports, out of 586 managers in Defendants’ 52 retail stores, only 24 (4.1%) were Hispanic. 390. According to Defendants’ 2010 EEO-1 reports, 43 (82.7%) of Defendants’ 52 retail stores had a lower percentage of Hispanic managers compared to the representation rate of Hispanic managers in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county. b. Defendants’ Ashland, Virginia, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county. c. Defendants’ Auburn, New York, store, where out of ten managers, not one was Hispanic, compared to a representation rate of .3% Hispanic managers in the county. d. Defendants’ Auburn Hills, Michigan store where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.4% Hispanic managers in the county.
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e. Defendants’ Bolingbrook, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. f. Defendants’ Bossier City, Louisiana, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. g. Defendants’ Branson, Missouri, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. h. Defendants’ Broken Arrow, Oklahoma, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 2.3 % Hispanic managers in the county. i. Defendants’ Cincinnati, Ohio, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of .7% Hispanic managers in the county. j. Defendants’ Clarksville, Indiana, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. k. Defendants’ Columbia, Missouri, store, where out of 10 managers, not one was Hispanic, compared to a representation rate of 1.5% Hispanic managers in the county.
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l. Defendants’ Concord, North Carolina, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. m. Defendants’ Council Bluffs, Iowa, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. n. Defendants’ Dania, Florida, store, where out of 13 managers, only one (7.7%) was Hispanic, compared to a representation rate of 14.1% Hispanic managers in the county. o. Defendants’ Denver, Colorado, store, where out of 14 managers, only one (7.1%) was Hispanic, compared to a representation rate of 8.2% Hispanic managers in the county. p. Defendants’ Destin, Florida, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. q. Defendants’ Duluth, Georgia, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. r. Defendants’ Foxborough, Massachusetts, store, where out of 15 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county.
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s. Defendants’ Ft. Myers, Florida, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 3.5% Hispanic managers in the county. t. Defendants’ Grapevine, Texas, store, where out of 16 managers, not one was Hispanic, compared to a representation rate of 7.7% Hispanic managers in the county. u. Defendants’ Gurnee, Illinois, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.6% Hispanic managers in the county. v. Defendants’ Hampton, Virginia, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.9% Hispanic managers in the county. w. Defendants’ Hanover, Maryland, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.7% Hispanic managers in the county. x. Defendants’ Harrisburg, Pennsylvania, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. y. Defendants’ Independence, Missouri, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county.
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z. Defendants’ Katy, Texas, store, where out of ten managers, only one (10%) was Hispanic, compared to a representation rate of 10.1% Hispanic managers in the county. aa. Defendants’ Kodak, Tennessee, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .6% Hispanic managers in the county. bb. Defendants’ Leeds, Alabama, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of .8% Hispanic managers in the county. cc. Defendants’ Macon, Georgia, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county. dd. Defendants’ Manteca, California, store, where out of 12 managers, only one (8.3%) was Hispanic, compared to a representation rate of 12.6% Hispanic managers in the county. ee. Defendants’ Miami, Florida, store, where out of ten managers, only four (40%) were Hispanic, compared to a representation rate of 49.6% Hispanic managers in the county ff. Defendants’ Myrtle Beach, South Carolina, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 1% Hispanic managers in the county.
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gg. Defendants’ Nashville, Tennessee, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.2% Hispanic managers in the county. hh. Defendants’ Oklahoma City, Oklahoma, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3.1% Hispanic managers in the county. ii. Defendants’ Olathe, Kansas, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 2.2% Hispanic managers in the county. jj. Defendants’ Orlando, Florida, store, where out of 13 managers, not one was Hispanic, compared to a representation rate of 8.6% Hispanic managers in the county. kk. Defendants’ Pearl, Mississippi, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of .5% Hispanic managers in the county. ll. Defendants’ Portage, Indiana, store, where out of 11 managers, not one was Hispanic, compared to a representation rate of 3% Hispanic managers in the county. mm. Defendants’ Rancho Cucamonga, California, store, where out of 12 managers, only two (16.7%) were Hispanic, compared to a representation rate of 19.3% Hispanic managers in the county.
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nn. Defendants’ Rossford, Ohio, store, where out of 12 managers, not one was Hispanic, compared to a representation rate of 1.8% Hispanic managers in the county. oo. Defendants’ Saint Charles, Missouri, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.1% Hispanic managers in the county. pp. Defendants’ Savannah, Georgia, store, where out of ten managers, not one was Hispanic, compared to a representation rate of 1.6% Hispanic managers in the county. qq. Defendants’ Spanish Fort, Alabama, where out of nine managers, not one was Hispanic, compared to a representation rate of .8 % Hispanic managers in the county. 391. Comparing the number of Hispanic managers employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic managers in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 6 Hispanic managers in 2010. DEFENDANTS’ DISCRIMINATORY FAILURE TO HIRE HISPANIC SALES EMPLOYEES
Defendants’ Discriminatory Failure to Hire Hispanic Sales Employees at Defendants’ Retail Stores in 2007 392. According to Defendants’ 2007 EEO-1 reports, out of a total employment of 8,186 employees in 43 retail stores, 5,997 (73.3%) employees were sales employees. 393. According to Defendants’ 2007 EEO-1 reports, out of 5,997 sales employees in Defendants’ 43 retail stores, only 448 (7.5%) were Hispanic.
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394. According to Defendants’ 2007 EEO-1 reports, 31 (72.1%) of Defendants’ 43 retail stores had a lower percentage of Hispanic sales employees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including:
a. Defendants’ Bolingbrook, Illinois, store, where out of 195 employees, 150 (76.9%) were sales employees, and out of those 150 sales employees, only eight (5.3%) were Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. b. Defendants’ Broken Arrow, Oklahoma, store, where out of 177 employees, 131 (74%) were sales employees, and out of those 131 sales employees, only one (.8%) was Hispanic, compared to a representation rate of 2.9% Hispanic sales employees in the county. c. Defendants’ Cincinnati, Ohio, store, where out of 229 employees, 183 (79.9%) were sales employees, and out of those 183 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales employees in the county. d. Defendants’ Clarksville, Indiana, store, where out of 272 employees, 210 (77.2%) were sales employees, and out of those 210 sales employees, not one was Hispanic, compared to a representation rate of 1.8% Hispanic sales employees in the county. e. Defendants’ Columbia, Missouri, store, where out of 125 employees, 90 (72%) were sales employees, and out of those 90 sales employees, only one
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(1.1%) was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. f. Defendants’ Council Bluffs, Iowa, store, where out of 177 employees, 130 (73.4%) were sales employees, and out of those 130 sales employees, not one was Hispanic, compared to a representation rate of 2.2% Hispanic sales employees in the county. g. Defendants’ Dania, Florida, store, where out of 255 employees, 181 (71%) were sales employees, and out of those 181 sales employees, only 26 (14.4%) were Hispanic, compared to a representation rate of 16.5% Hispanic sales employees in the county. h. Defendants’ Denver, Colorado, store, where out of 241 employees, 180 (74.7%) were sales employees, and out of those 180 sales employees, only 14 (7.8%) were Hispanic, compared to a representation rate of 12% Hispanic sales employees in the county. i. Defendants’ Destin, Florida, store, where out of 108 employees, 79 (73.1%) were sales employees, and out of those 79 sales employees, only two (2.5%) were Hispanic, compared to a representation rate of 3.9% Hispanic sales employees in the county. j. Defendants’ Duluth, Georgia, store, where out of 208 employees, 153 (77.2%) were sales employees, and out of those 153 sales employees, only two (1.3%) were Hispanic, compared to a representation rate of 4.3% Hispanic sales employees in the county.
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k. Defendants’ Ft. Myers, Florida, store, where out of 190 employees, 136 (71.6%) were sales employees, and out of those 136 sales employees, only three (2.2%) were Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. l. Defendants’ Garland, Texas, store, where out of 139 employees, 103 (74%) were sales employees, and out of those 103 sales employees, only five (4.9%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. m. Defendants’ Grapevine, Texas, store, where out of 300 employees, 148 (49.3%) were sales employees, and out of those 148 sales employees, only five (3.4%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. n. Defendants’ Gurnee, Illinois, store, where out of 211 employees, 170 (80.6%) were sales employees, and out of those 170 sales employees, only seven (4.1%) were Hispanic, compared to a representation rate of 7.6% Hispanic sales employees in the county. o. Defendants’ Harrisburg, Pennsylvania, store, where out of 240 employees, 171 (71.3%) were sales employees, and out of those 171 sales employees, only two (1.2%) were Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county. p. Defendants’ Islamorada, Florida, store, where out of 63 employees, 49 (77.8%) were sales employees, and out of those 49 sales employees, only three
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(6.1%) were Hispanic, compared to a representation rate of 12.4% Hispanic sales employees in the county. q. Defendants’ Katy, Texas, store, where out of 143 employees, 98 (68.5%) were sales employees, and out of those 98 sales employees, only 13 (13.3%) were Hispanic, compared to a representation rate of 18.3% Hispanic sales employees in the county. r. Defendants’ Kodak, Tennessee, store, where out of 217 employees, 162 (74.7%) were sales employees, and out of those 162 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales employees in the county. s. Defendants’ Las Vegas, Nevada, store, where out of 210 employees, 149 (71%) were sales employees, and out of those 149 sales employees, only ten (6.7%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county. t. Defendants’ Macon, Georgia, store, where out of 156 employees, 120 (76.9%) were sales employees, and out of those 120 sales employees, not one was Hispanic, compared to a representation rate of .5% Hispanic sales employees in the county. u. Defendants’ Memphis, Tennessee, store, where out of 143 employees, 106 (74.1%) were sales employees, and out of those 106 sales employees, not one was Hispanic, compared to a representation rate of 1% Hispanic sales employees in the county.
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v. Defendants’ Mesa, Arizona, store, where out of 187 employees, 134 (71.7%) were sales employees, and out of those 134 sales employees, only seven (5.2%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. w. Defendants’ Myrtle Beach, South Carolina, store, where out of 151 employees, 109 (72.2%) were sales employees, and out of those 109 sales employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. x. Defendants’ Oklahoma City, Oklahoma, store, where out of 155 employees, 118 (76.1%) were sales employees, and out of those 118 sales employees, only two (1.7%) were Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county. y. Defendants’ Orlando, Florida, store, where out of 277 employees, 204 (73.6%) were sales employees, and out of those 204 sales employees, only 13 (6.4%) were Hispanic, compared to a representation rate of 15% Hispanic sales employees in the county. z. Defendants’ Pearl, Mississippi, store, where out of 164 employees, 108 (65.9%) were sales employees, and out of those 108 sales employees, not one was Hispanic, compared to a representation rate of 1.1% Hispanic sales employees in the county. aa. Defendants’ Pearland, Texas, store, where out of 205 employees, 152 (74.1%) were sales employees, and out of those 152 sales employees, only 18
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(11.8%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county. bb. Defendants’ Prattville, Alabama, store, where out of 193 employees, 137 (71%) were sales employees, and out of those 150 sales employees, only one (.7%) was Hispanic, compared to a representation rate of 1.2% Hispanic sales employees in the county. cc. Defendants’ Saint Charles, Missouri, store, where out of 224 employees, 178 (79.5%) were sales employees, and out of those 178 sales employees, only one (.6%) was Hispanic, compared to a representation rate of .8 % Hispanic sales employees in the county. dd. Defendants’ San Antonio, Texas, store, where out of 197 employees, 145 (73.6%) were sales employees, and out of those 145 sales employees, only 61 (42.1%) were Hispanic, compared to a representation rate of 45.6% Hispanic sales employees in the county. ee. Defendants’ Savannah, Georgia, store, where out of 147 employees, 109 (74.1%) were sales employees, and out of those 145 sales employees, not one was Hispanic, compared to a representation rate of 1% Hispanic sales employees in the county. 395. Comparing the number of Hispanic sales employees employed by Defendants (as specified in Defendants’ 2007 EEO-1 reports for 43 retail stores) to the representation rate of Hispanic sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 82 Hispanic sales employees in 2007.
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Defendants’ Discriminatory Failure to Hire Hispanic Sales Employees at Defendants’ Retail Stores in 2008 396. According to Defendants’ 2008 EEO-1 reports, out of a total employment of 8,410 employees in 49 retail stores, 6,214 (73.9%) employees were sales employees. 397. According to Defendants’ 2008 EEO-1 reports, out of 6,214 sales employees in Defendants’ 49 retail stores, only 328 (5.3%) were Hispanic. 398. According to Defendants’ 2008 EEO-1 reports, 35 (71.4%) of Defendants’ 49 retail stores had a lower percentage of Hispanic sales employees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Bolingbrook, Illinois, store, where out of 177 employees, 137 (77.4%) were sales employees, and out of those 137 sales employees, only two (1.5%) were Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. b. Defendants’ Broken Arrow, Oklahoma, store, where out of 212 employees, 165 (77.8%) were sales employees, and out of those 165 sales employees, only three (1.8%) were Hispanic, compared to a representation rate of 2.9% Hispanic sales employees in the county. c. Defendants’ Cincinnati, Ohio, store, where out of 222 employees, 179 (80.6%) were sales employees, and out of those 179 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales employees in the county. d. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 172 (68.4%) were sales employees, and out of those 172 sales employees, not one was
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Hispanic, compared to a representation rate of 1.8% Hispanic sales employees in the county. e. Defendants’ Columbia, Missouri, store, where out of 98 employees, 67 (68.4%) were sales employees, and out of those 67 sales employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. f. Defendants’ Concord, North Carolina, store, where out of 196 employees, 136 (69.4%) were sales employees, and out of those 136 sales employees, only two (1.5%) was Hispanic, compared to a representation rate of 1.8% Hispanic sales employees in the county. g. Defendants’ Council Bluffs, Iowa, store, where out of 165 employees, 123 (74.5%) were sales employees, and out of those 123 sales employees, not one was Hispanic, compared to a representation rate of 2.2% Hispanic sales employees in the county. h. Defendants’ Dania, Florida, store, where out of 229 employees, 165 (72.1%) were sales employees, and out of those 165 sales employees, only 21 (12.7%) were Hispanic, compared to a representation rate of 16.5% Hispanic sales employees in the county. i. Defendants’ Denver, Colorado, store, where out of 198 employees, 145 (73.2%) were sales employees, and out of those 145 sales employees, only 11 (7.6%) were Hispanic, compared to a representation rate of 12% Hispanic sales employees in the county.
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j. Defendants’ Destin, Florida, store, where out of 99 employees, 73 (73.7%) were sales employees, and out of those 73 sales employees, only two (2.7%) were Hispanic, compared to a representation rate of 3.9% Hispanic sales employees in the county. k. Defendants’ Duluth, Georgia, store, where out of 193 employees, 144 (74.6%) were sales employees, and out of those 144 sales employees, only two (1.4%) were Hispanic, compared to a representation rate of 4.3% Hispanic sales employees in the county. l. Defendants’ Ft. Myers, Florida, store, where out of 172 employees, 131 (73.8%) were sales employees, and out of those 131 sales employees, only one (.8%) was Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. m. Defendants’ Garland, Texas, store, where out of 123 employees, 97 (78.9%) were sales employees, and out of those 97 sales employees, only six (6.2%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. n. Defendants’ Grapevine, Texas, store, where out of 291 employees, 147 (50.5%) were sales employees, and out of those 147 sales employees, only six (4.1%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. o. Defendants’ Gurnee, Illinois, store, where out of 175 employees, 139 (79.4%) were sales employees, and out of those 139 sales employees, only two
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(1.4%) were Hispanic, compared to a representation rate of 7.6% Hispanic sales employees in the county. p. Defendants’ Harrisburg, Pennsylvania, store, where out of 234 employees, 168 (71.8%) were sales employees, and out of those 168 sales employees, only one (.6%) was Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county. q. Defendants’ Independence, Missouri, store, where out of 166 employees, 125 (75.3%) were sales employees, and out of those 125 sales employees, only one (.8%) was Hispanic, compared to a representation rate of 3.2% Hispanic sales employees in the county. r. Defendants’ Islamorada, Florida, store, where out of 61 employees, 47 (77%) were sales employees, and out of those 47 sales employees, only four (8.5%) were Hispanic, compared to a representation rate of 12.4% Hispanic sales employees in the county. s. Defendants’ Katy, Texas, store, where out of 129 employees, 95 (73.6%) were sales employees, and out of those 95 sales employees, only eight (8.4%) were Hispanic, compared to a representation rate of 18.3% Hispanic sales employees in the county. t. Defendants’ Las Vegas, Nevada, store, where out of 195 employees, 144 (73.8%) were sales employees, and out of those 144 sales employees, only 12 (8.3%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county.
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u. Defendants’ Macon, Georgia, store, where out of 158 employees, 125 (79.1%) were sales employees, and out of those 125 sales employees, not one was Hispanic, compared to a representation rate of .5% Hispanic sales employees in the county. v. Defendants’ Mesa, Arizona, store, where out of 154 employees, 115 (74.7%) were sales employees, and out of those 115 sales employees, only 11 (9.6%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. w. Defendants’ Myrtle Beach, South Carolina, store, where out of 136 employees, 97 (71.3%) were sales employees, and out of those 97 sales employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. x. Defendants’ Nashville, Tennessee, store, where out of 196 employees, 138 (70.4%) were sales employees, and out of those 109 sales employees, only two (1.4%) were Hispanic, compared to a representation rate of 1.9% Hispanic sales employees in the county. y. Defendants’ Oklahoma City, Oklahoma, store, where out of 130 employees, 98 (75.4%) were sales employees, and out of those 98 sales employees, not one was Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county. z. Defendants’ Olathe, Kansas, store, where out of 156 employees, 114 (73.1%) were sales employees, and out of those 114 sales employees, only three
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(2.6%) were Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county. aa. Defendants’ Orlando, Florida, store, where out of 224 employees, 166 (74.1%) were sales employees, and out of those 166 sales employees, only 11 (7.2%) were Hispanic, compared to a representation rate of 15% Hispanic sales employees in the county. bb. Defendants’ Pearl, Mississippi, store, where out of 153 employees, 108 (70.6%) were sales employees, and out of those 108 sales employees, not one was Hispanic, compared to a representation rate of 1.1% Hispanic sales employees in the county. cc. Defendants’ Pearland, Texas, store, where out of 123 employees, 89 (72.4%) were sales employees, and out of those 89 sales employees, only 14 (15.7%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county. dd. Defendants’ Prattville, Alabama, store, where out of 187 employees, 135 (77.3%) were sales employees, and out of those 135 sales employees, only one (.7%) was Hispanic, compared to a representation rate of 1.2% Hispanic sales employees in the county. ee. Defendants’ Rancho Cucamonga, California, store, where out of 260 employees, 201 (77.3%) were sales employees, and out of those 201 sales employees, only 55 (27.4%) were Hispanic, compared to a representation rate of 29.7% Hispanic sales employees in the county.
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ff. Defendants’ Saint Charles, Missouri, store, where out of 184 employees, 142 (77.2%) were sales employees, and out of those 142 sales employees, only one (.7%) was Hispanic, compared to a representation rate of .8% Hispanic sales employees in the county. gg. Defendants’ San Antonio, Texas, store, where out of 179 employees, 134 (74.9%) were sales employees, and out of those 134 sales employees only 53 (39.6%) were Hispanic, compared to a representation rate of 45.6% Hispanic sales employees in the county. hh. Defendants’ Savannah, Georgia, store, where out of 118 employees, 84 (71.2%) were sales employees, and out of those 84 sales employees, not one was Hispanic, compared to a representation rate of 1% Hispanic sales employees in the county. ii. Defendants’ Spanish Fort, Alabama, store, where out of 197 employees, 151 (76.6%) were sales employees, and out of those 151 sales employees, only one (.7%) was Hispanic, compared to a representation rate of 1.4% Hispanic sales employees in the county. 399. Comparing the number of Hispanic sales employees employed by Defendants (as specified in Defendants’ 2008 EEO-1 reports for 49 retail stores) to the representation rate of Hispanic sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 116 Hispanic sales employees in 2008.
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Defendants’ Discriminatory Failure to Hire Hispanic Sales Employees at Defendants’ Retail Stores in 2009 400. According to Defendants’ 2009 EEO-1 reports, out of a total employment of 8,561 employees in 52 retail stores, 6,496 (75.9%) employees were sales employees. 401. According to Defendants’ 2009 EEO-1 reports, out of 6,496 sales employees in Defendants’ 52 retail stores, only 317 (4.9%) were Hispanic. 402. According to Defendants’ 2009 EEO-1 reports, 41 (78.8%) of Defendants’ 52 retail stores had a lower percentage of Hispanic sales employees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 208 employees, 165 (79.3%) were sales employees, and out of those 165 sales employees, only one (.6%) was Hispanic, compared to a representation rate of 1.5% Hispanic sales employees in the county. b. Defendants’ Ashland, Virginia, store, where out of 202 employees, 161 (79.7%) were sales employees, and out of those 161 sales employees, only two (1.2%) were Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 168 employees, 137 (80.7%) were sales employees, and out of those 137 sales employees, only two (1.5%) were Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. d. Defendants’ Branson, Missouri, store, where out of 97 employees, 79 (81.4%) were sales employees, and out of those 79 sales employees, not one was
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Hispanic, compared to a representation rate of .7% Hispanic sales employees in the county. e. Defendants’ Cincinnati, Ohio, store, where out of 220 employees, 186 (84.5%) were sales employees, and out of those 186 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales employees in the county. f. Defendants’ Clarksville, Indiana, store, where out of 223 employees, 173 (77.6%) were sales employees, and out of those 173 sales employees, not one was Hispanic, compared to a representation rate of 1.8% Hispanic sales employees in the county. g. Defendants’ Columbia, Missouri, store, where out of 74 employees, 50 (67.6%) were sales employees, and out of those 50 sales employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. h. Defendants’ Council Bluffs, Iowa, store, where out of 172 employees, 124 (72.1%) were sales employees, and out of those 124 sales employees, only one (.8%) was Hispanic, compared to a representation rate of 2.2% Hispanic sales employees in the county. i. Defendants’ Dania, Florida, store, where out of 233 employees, 177 (76%) were sales employees, and out of those 177 sales employees, only 24 (13.6%) were Hispanic, compared to a representation rate of 16.5% Hispanic sales employees in the county.
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j. Defendants’ Denver, Colorado, store, where out of 216 employees, 167 (77.3%) were sales employees, and out of those 167 sales employees, only 12 (7.2%) were Hispanic, compared to a representation rate of 12% Hispanic sales employees in the county. k. Defendants’ Destin, Florida, store, where out of 100 employees, 75 (75%) were sales employees, and out of those 75 sales employees, only one (1.3%) was Hispanic, compared to a representation rate of 3.9% Hispanic sales employees in the county. l. Defendants’ Duluth, Georgia, store, where out of 182 employees, 138 (75.8%) were sales employees, and out of those 144 sales employees, only one (.7%) was Hispanic, compared to a representation rate of 4.3% Hispanic sales employees in the county. m. Defendants’ Foxborough, Massachusetts, store, where out of 188 employees, 129 (68.6%) were sales employees, and out of those 129 sales employees, only one (.8%) was Hispanic, compared to a representation rate of 1.8% Hispanic sales employees in the county. n. Defendants’ Ft. Myers, Florida, store, where out of 161 employees, 123 (76.4%) were sales employees, and out of those 123 sales employees, only two (1.6%) were Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. o. Defendants’ Garland, Texas, store, where out of 115 employees, 93 (80.9%) were sales employees, and out of those 93 sales employees, only three
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(3.2%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. p. Defendants’ Grapevine, Texas, store, where out of 242 employees, 137 (56.6%) were sales employees, and out of those 137 sales employees, only six (4.4%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. q. Defendants’ Gurnee, Illinois, store, where out of 144 employees, 112 (77.8%) were sales employees, and out of those 112 sales employees, only one (.9%) was Hispanic, compared to a representation rate of 7.6% Hispanic sales employees in the county. r. Defendants’ Hampton, Virginia, store, where out of 145 employees, 118 (81.4%) were sales employees, and out of those 118 sales employees, only two (1.7%) were Hispanic, compared to a representation rate of 2.4% Hispanic sales employees in the county. s. Defendants’ Hanover, Maryland, store, where out of 214 employees, 180 (84.1%) were sales employees, and out of those 180 sales employees, only three (1.7%) were Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county. t. Defendants’ Harrisburg, Pennsylvania, store, where out of 196 employees, 144 (73.5%) were sales employees, and out of those 144 sales employees, only one (.7%) was Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county.
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u. Defendants’ Independence, Missouri, store, where out of 149 employees, 111 (74.5%) were sales employees, and out of those 149 sales employees, not one was Hispanic, compared to a representation rate of 3.2% Hispanic sales employees in the county. v. Defendants’ Islamorada, Florida, store, where out of 55 employees, 43 (78.2%) were sales employees, and out of those 43 sales employees, only three (7%) were Hispanic, compared to a representation rate of 12.4% Hispanic sales employees in the county. w. Defendants’ Katy, Texas, store, where out of 125 employees, 98 (78.4%) were sales employees, and out of those 98 sales employees, only 13 (13.3%) were Hispanic, compared to a representation rate of 18.3% Hispanic sales employees in the county. x. Defendants’ Las Vegas, Nevada, store, where out of 164 employees, 122 (74.4%) were sales employees, and out of those 122 sales employees, only eight (6.6%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county. y. Defendants’ Leeds, Alabama, store, where out of 218 employees, 171 (78.4%) were sales employees, and out of those 171 sales employees, not one was Hispanic, compared to a representation rate of .7% Hispanic sales employees in the county. z. Defendants’ Macon, Georgia, store, where out of 137 employees, 103 (75.2%) were sales employees, and out of those 103 sales employees, not one was
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Hispanic, compared to a representation rate of .5% Hispanic sales employees in the county. aa. Defendants’ Manteca, California, store, where out of 186 employees, 134 (72%) were sales employees, and out of those 134 sales employees, only 15 (11.2%) were Hispanic, compared to a representation rate of 18.4% Hispanic sales employees in the county. bb. Defendants’ Mesa, Arizona, store, where out of 155 employees, 120 (77.4%) were sales employees, and out of those 120 sales employees, only nine (7.5%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. cc. Defendants’ Myrtle Beach, South Carolina, store, where out of 131 employees, 99 (75.6%) were sales employees, and out of those 99 sales employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. dd. Defendants’ Nashville, Tennessee, store, where out of 181 employees, 135 (74.6%) were sales employees, and out of those 135 sales employees, not one was Hispanic, compared to a representation rate of 1.9% Hispanic sales employees in the county. ee. Defendants’ Oklahoma City, Oklahoma, store, where out of 146 employees, 113 (77.4%) were sales employees, and out of those 113 sales employees, not one was Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county.
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ff. Defendants’ Olathe, Kansas, store, where out of 128 employees, 97 (75.8%) were sales employees, and out of those 97 sales employees, only two (2.1%) were Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county. gg. Defendants’ Orlando, Florida, store, where out of 214 employees, 161 (75.2%) were sales employees, and out of those 161 sales employees, only nine (5.6%) were Hispanic, compared to a representation rate of 15% Hispanic sales employees in the county. hh. Defendants’ Pearl, Mississippi, store, where out of 159 employees, 105 (66%) were sales employees, and out of those 105 sales employees, not one was Hispanic, compared to a representation rate of 1.1% Hispanic sales employees in the county. ii. Defendants’ Pearland, Texas, store, where out of 124 employees, 91 (73.4%) were sales employees, and out of those 91 sales employees, only 15 (16.5%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county. jj. Defendants’ Prattville, Alabama, store, where out of 148 employees, 106 (71.6%) were sales employees, and out of those 106 sales employees, only one (.9%) was Hispanic, compared to a representation rate of 1.2% Hispanic sales employees in the county. kk. Defendants’ Rancho Cucamonga, California, store, where out of 260 employees, 204 (78.5%) were sales employees, and out of those 204 sales
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employees, only 42 (20.6%) were Hispanic, compared to a representation rate of 29.7% Hispanic sales employees in the county. ll. Defendants’ Saint Charles, Missouri, store, where out of 187 employees, 153 (81.8%) were sales employees, and out of those 153 sales employees, only one (.7%) was Hispanic, compared to a representation rate of .8 % Hispanic sales employees in the county. mm. Defendants’ San Antonio, Texas, store, where out of 154 employees, 118 (76.6%) were sales employees, and out of those 118 sales employees only 44 (37.3%) were Hispanic, compared to a representation rate of 45.6% Hispanic sales employees in the county. nn. Defendants’ Savannah, Georgia, store, where out of 117 employees, 85 (72.6%) were sales employees, and out of those 117 sales employees, not one was Hispanic, compared to a representation rate of 1% Hispanic sales employees in the county. oo. Defendants’ Spanish Fort, Alabama, store, where out of 177 employees, 145 (81.9%) were sales employees, and out of those 145 sales employees, not one was Hispanic, compared to a representation rate of 1.4% Hispanic sales employees in the county. 403. Comparing the number of Hispanic sales employees employed by Defendants (as specified in Defendants’ 2009 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 143 Hispanic sales employees in 2009.
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Defendants’ Discriminatory Failure to Hire Hispanic Sales Employees at Defendants’ Retail Stores in 2010 404. According to Defendants’ 2010 EEO-1 reports, out of a total employment of 8,839 employees in 52 retail stores, 6,820 (77.2%) employees were sales employees. 405. According to Defendants’ 2010 EEO-1 reports, out of 6,820 sales employees in Defendants’ 52 retail stores, only 381 (5.6%) were Hispanic. 406. According to Defendants’ 2010 EEO-1 reports, 37 (71.2%) of Defendants’ 52 retail stores had a lower percentage of Hispanic sales employees compared to the representation rate of Hispanic sales employees in the county in which the store is located as provided for in the Census 2000 Special EEO file, including: a. Defendants’ Altoona, Iowa, store, where out of 189 employees, 141 (74.6%) were sales employees, and out of those 141 sales employees, only two (1.4%) were Hispanic, compared to a representation rate of 1.5% Hispanic sales employees in the county. b. Defendants’ Auburn, New York, store, where out of 139 employees, 115 (82.7%) were sales employees, and out of those 115 sales employees, only one (.9%) was Hispanic, compared to a representation rate of 1.4% Hispanic sales employees in the county. c. Defendants’ Bolingbrook, Illinois, store, where out of 170 employees, 136 (80%) were sales employees, and out of those 136 sales employees, only three (2.2%) were Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. d. Defendants’ Bossier City, Louisiana, store, where out of 173 employees, 140 (80.9%) were sales employees, and out of those 140 sales employees, only
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three (2.1%) were Hispanic, compared to a representation rate of 2.2% Hispanic sales employees in the county. e. Defendants’ Branson, Missouri, store, where out of 105 employees, 86 (81.9%) were sales employees, and out of those 86 sales employees, not one was Hispanic, compared to a representation rate of .7% Hispanic sales employees in the county. f. Defendants’ Cincinnati, Ohio, store, where out of 208 employees, 175 (84.1%) were sales employees, and out of those 175 sales employees, not one was Hispanic, compared to a representation rate of .8% Hispanic sales employees in the county. g. Defendants’ Clarksville, Indiana, store, where out of 234 employees, 184 (78.6%) were sales employees, and out of those 184 sales employees, not one was Hispanic, compared to a representation rate of 1.8% Hispanic sales employees in the county. h. Defendants’ Columbia, Missouri, store, where out of 98 employees, 71 (72.4%) were sales employees, and out of those 71 sales employees, not one was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. i. Defendants’ Dania, Florida, store, where out of 227 employees, 173 (76.2%) were sales employees, and out of those 173 sales employees, only 24 (13.9%) were Hispanic, compared to a representation rate of 16.5% Hispanic sales employees in the county.
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j. Defendants’ Denver, Colorado, store, where out of 206 employees, 159 (77.2%) were sales employees, and out of those 159 sales employees, only 11 (6.9%) were Hispanic, compared to a representation rate of 12% Hispanic sales employees in the county. k. Defendants’ Destin, Florida, store, where out of 106 employees, 82 (77.4%) were sales employees, and out of those 82 sales employees, only one (1.1%) was Hispanic, compared to a representation rate of 3.9% Hispanic sales employees in the county. l. Defendants’ Duluth, Georgia, store, where out of 183 employees, 141 (77%) were sales employees, and out of those 141 sales employees, only three (2.1%) were Hispanic, compared to a representation rate of 4.3% Hispanic sales employees in the county. m. Defendants’ Foxborough, Massachusetts, store, where out of 190 employees, 130 (68.4%) were sales employees, and out of those 130 sales employees, only one (.8%) was Hispanic, compared to a representation rate of 1.8% Hispanic sales employees in the county. n. Defendants’ Ft. Myers, Florida, store, where out of 157 employees, 120 (76.4%) were sales employees, and out of those 120 sales employees, only five (4.2%) were Hispanic, compared to a representation rate of 6.4% Hispanic sales employees in the county. o. Defendants’ Garland, Texas, store, where out of 134 employees, 106 (79.1%) were sales employees, and out of those 106 sales employees, only four
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(3.8%) were Hispanic, compared to a representation rate of 12.9% Hispanic sales employees in the county. p. Defendants’ Grapevine, Texas, store, where out of 290 employees, 191 (65.9%) were sales employees, and out of those 191 sales employees, only six (3.1%) were Hispanic, compared to a representation rate of 10.6% Hispanic sales employees in the county. q. Defendants’ Gurnee, Illinois, store, where out of 159 employees, 129 (81.1%) were sales employees, and out of those 129 sales employees, not one was Hispanic, compared to a representation rate of 7.6% Hispanic sales employees in the county. r. Defendants’ Hampton, Virginia, store, where out of 155 employees, 123 (79.4%) were sales employees, and out of those 123 sales employees, only two (1.6%) were Hispanic, compared to a representation rate of 2.4% Hispanic sales employees in the county. s. Defendants’ Hanover, Maryland, store, where out of 225 employees, 191 (84.9%) were sales employees, and out of those 191 sales employees, only two (1%) were Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county. t. Defendants’ Harrisburg, Pennsylvania, store, where out of 203 employees, 147 (72.4%) were sales employees, and out of those 147 sales employees, only two (1.4%) were Hispanic, compared to a representation rate of 2.1% Hispanic sales employees in the county.
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u. Defendants’ Independence, Missouri, store, where out of 153 employees, 122 (79.7%) were sales employees, and out of those 122 sales employees, not one was Hispanic, compared to a representation rate of 3.2% Hispanic sales employees in the county. v. Defendants’ Islamorada, Florida, store, where out of 57 employees, 46 (80.7%) were sales employees out of those 46 sales employees, only five (10.9%) were Hispanic, compared to a representation rate of 12.4% Hispanic sales employees in the county. w. Defendants’ Katy, Texas, store, where out of 120 employees, 92 (76.7%) were sales employees, and out of those 92 sales employees, only 11 (12%) were Hispanic, compared to a representation rate of 18.3% Hispanic sales employees in the county. x. Defendants’ Las Vegas, Nevada, store, where out of 155 employees, 113 (72.9%) were sales employees, and out of those 113 sales employees, only ten (8.8%) were Hispanic, compared to a representation rate of 12.2% Hispanic sales employees in the county. y. Defendants’ Leeds, Alabama, store, where out of 182 employees, 145 (79.7%) were sales employees, and out of those 145 sales employees, not one was Hispanic, compared to a representation rate of .7% Hispanic sales employees in the county. z. Defendants’ Manteca, California, store, where out of 225 employees, 179 (79.6%) were sales employees, and out of those 179 sales employees, only 24
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(13.4%) were Hispanic, compared to a representation rate of 18.4% Hispanic sales employees in the county. aa. Defendants’ Mesa, Arizona, store, where out of 154 employees, 118 (76.6%) were sales employees, and out of those 118 sales employees, only seven (5.9%) were Hispanic, compared to a representation rate of 12.7% Hispanic sales employees in the county. bb. Defendants’ Myrtle Beach, South Carolina, store, where out of 135 employees, 105 (77.8%) were sales employees, and out of those 105 sales employees, only one (1%) was Hispanic, compared to a representation rate of 1.3% Hispanic sales employees in the county. cc. Defendants’ Oklahoma City, Oklahoma, store, where out of 152 employees, 114 (75%) were sales employees, and out of those 114 sales employees, only one (.9%) was Hispanic, compared to a representation rate of 4% Hispanic sales employees in the county. dd. Defendants’ Orlando, Florida, store, where out of 205 employees, 155 (75.6%) were sales employees, and out of those 155 sales employees, only ten (6.5%) were Hispanic, compared to a representation rate of 15% Hispanic sales employees in the county. ee. Defendants’ Pearl, Mississippi, store, where out of 149 employees, 96 (64.4%) were sales employees, and out of those 96 sales employees, not one was Hispanic, compared to a representation rate of 1.1% Hispanic sales employees in the county.
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ff. Defendants’ Pearland, Texas, store, where out of 150 employees, 117 (78%) were sales employees, and out of those 117 sales employees, only 19 (16.2%) were Hispanic, compared to a representation rate of 17.8% Hispanic sales employees in the county. gg. Defendants’ Prattville, Alabama, store, where out of 130 employees, 95 (73.1%) were sales employees, and out of those 95 sales employees, not one was Hispanic, compared to a representation rate of 1.2% Hispanic sales employees in the county. hh. Defendants’ Rancho Cucamonga, California, store, where out of 281 employees, 232 (82.6%) were sales employees, and out of those 281 sales employees, only 46 (19.8%) were Hispanic, compared to a representation rate of 29.7% Hispanic sales employees in the county. ii. Defendants’ Saint Charles, Missouri, store, where out of 190 employees, 156 (82.1%) were sales employees, and out of those 156 sales employees, only one (.6%) was Hispanic, compared to a representation rate of .8 % Hispanic sales employees in the county. jj. Defendants’ Savannah, Georgia, store, where out of 113 employees, 84 (74.3%) were sales employees, and out of those 84 sales employees, not one was Hispanic, compared to a representation rate of 1% Hispanic sales employees in the county. kk. Defendants’ Spanish Fort, Alabama, store, where out of 192 employees, 157 (81.8%) were sales employees, and out of those 157 sales employees, not one
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was Hispanic, compared to a representation rate of 1.4% Hispanic sales employees in the county. 407. Comparing the number of Hispanic sales employees employed by Defendants (as specified in Defendants’ 2010 EEO-1 reports for 52 retail stores) to the representation rate of Hispanic sales employees in the county in which each store is located (as provided for in the Census 2000 Special EEO file) indicates that Defendants had a net shortfall of 128 Hispanic sales employees in 2010.
DEFENDANTS HAVE DENIED EMPLOYMENT TO HISPANIC APPLICANTS AT STORES NATIONWIDE 408. Plaintiff re-alleges and incorporates by reference paragraphs 1 to 407 above as if set forth fully herein. 409. As discussed in paragraphs 410 to 427 below, Defendants have denied employment to at least hundreds of individual Hispanic applicants based on their national origin including, but not limited to, the individuals listed below, and all persons in like or related circumstances. The individuals were denied employment based on their national origin at numerous of Defendants’ stores and from 2005 or earlier to the present. 410. Maria Jimenez is Hispanic. In the summer of 2011, she attended a job fair that was being held in anticipation of the opening of the East Peoria, Illinois store. Jimenez had many years of experience as a cashier and customer service representative when she applied. Defendants did not hire Jimenez. 411. Elizabeth Solis is Hispanic. In 2005 or 2006, she applied to the Katy, Texas store. Defendants did not hire Solis. 412. Charles Diaz is Hispanic. He applied in person to the Savannah, Georgia store in the summer of 2006 and again during the summer of 2008. Diaz had hunting and fishing
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experience and was able to provide personal references from people already employed at the Savannah store. Current employees told Diaz that the store had openings around the second time he applied. Diaz also followed up on his application by visiting or telephoning the store on several occasions. During his visits to the store, Diaz repeatedly observed that the majority of employees were White unlike other retail stores in the same geographic area such as Target and Home Depot. Diaz was never hired by Defendants.
413. Jorge Luis Berber is Hispanic. He applied to the Katy, Texas store around October 2005. Defendants did not hire Berber.
414. Luis Berber is Hispanic. He had stocking, hunting, and fishing experience when he applied to the Katy, Texas store in October 2005. After he completed the application, he had to wait a long time to speak to a manager. An employee eventually looked at Berber’s application, chuckled, and told him that someone would call him if a position was available. When Berber called to follow up on his application and asked to speak to a manager, he was told that no manager was available to speak to him, or that that they were reviewing applications. Defendants did not hire Berber.
415. Gilma Delgado is Hispanic. She had stocking experience when she applied to the Katy, Texas store around September 2006. She previously had applied in 2002 and did not hear back at that time. When Delgado followed up on her 2006 application a couple of weeks later, an employee told her that if no one had contacted her, they were not going to hire her. Defendants did not hire Delgado.
416. Ricky Ruiz is Hispanic and Black. He applied to the Bolingbrook, Illinois store in late 2008. He contacted the store a few times regarding his application, but was never contacted or hired by Defendants.
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417. Gregory Perez is Hispanic. He had sales and customer service experience when he applied twice to the Bolingbrook, Illinois, store, including in August 2007. When he called to follow up on his application, he was told that the position had already been filled, and that he was “overqualified.” Defendants did not hire Perez.
418. Wayne Espinoza is Hispanic. He had extensive experience as a fisherman and had a captain's license when he applied to work in the Fishing department at the Hampton, Virginia store on three occasions. He applied around November 2010, January 2011, and again around June 2011. Espinoza never received a call back for an interview and was never hired by Defendants.
419. Veronica Jara is Hispanic. Jara had ten years of human resources experience when she responded to an ad she saw online in June 2011 for a Human Resources position in the Bolingbrook, Illinois store. She was not hired by Defendants.
420. Robert Flores is Hispanic. He applied to the Savannah, Georgia store around March 2008. He had previously applied on-line in 2006. He was not hired by Defendants.
421. Esmeralda Lopez is Hispanic. She had stocking experience when she submitted an online application to work at the Savannah, Georgia store in March 2007. Defendants did not hire Ms. Lopez.
422. Antonio Nieto is Hispanic and has dark skin. He had extensive hunting and archery experience and had worked at another sports and outdoor goods store when he applied online in early 2011 for a position at the Harlingen, Texas store. In late August or September 2011, he attended a job fair and was interviewed twice. He was told that he would be called. Nieto followed up frequently by telephone after the interviews, and an employee told him that the store had done all its hiring. Defendants did not hire Nieto.
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423. Gabriel Ybarra is Hispanic. When he applied at the Bolingbrook, Illinois store in May 2008, he listed on his application that his hobbies and interests included fishing and outdoors and that he had experience as a cashier. He handed his application to a White employee at the store. He called to follow up on his application and also went to the store to speak to a manager about his pending application and both times was told that his application was “being processed.” Defendants did not interview or hire Ybarra.
424. Andraya Bennett is Hispanic. She applied to the Pearl, Mississippi store in May 2007. While shopping at the store, she was told that the store was hiring. On her application, she listed six years of sales/customer service experience, and listed her fishing, hunting, and camping experience. Defendants did not interview or hire Bennett.
425. Victor Mejias is Hispanic. Mejias had years of experience, including management experience, selling fishing supplies when he applied to the Bolingbrook, Illinois store in April 2007. His application also listed extensive experience in hunting, fishing, boating, and camping. He previously had applied online in March 2007. When his previous sporting goods store employer announced that it would be closing, Mejias and two non-Hispanic employees from that store applied at the Bolingbrook store. The non-Hispanics were both hired while Mejias was not hired or even given an interview. Mejias had been the manager of the two employees hired by Defendants, and all three belonged to the Riverside Fishing Club. Later, another non-Hispanic member of the Riverside Fishing Club was hired at the store. Defendants never hired Mejias.
426. Watson Falzarano is Hispanic. Falzarano had an associate’s degree and experience as a driver and in food service when he applied to the Orlando, Florida store in July 2007. He also indicated on his application that he had experience in about seven different
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outdoor activities. When he turned in his application, he was told the store was not hiring, even though he had just been told elsewhere that Defendants were hiring. He observed no Black or Hispanic employees at the store. Defendants did not hire Falzarano.
427. Cynthia Selent is Hispanic. Around the summer of 2007, she applied for a Human Resources/Trainer position at the Prattville, Alabama, store, which had not yet opened. She had an initial job interview at a local hotel and a second interview with a Regional Human Resources Manager. She informed the second interviewer that she was bi-lingual in English and Spanish. The interviewer asked if she had learned Spanish in school, and she replied that she is Hispanic and that her mother was from Puerto Rico and her father from Argentina. She explained that she learned Spanish and English together as she was growing up. The interviewer folded his arms, sat back, and the interview was then cut short. After not hearing back, Selent returned to the hotel and asked the man with whom she had interviewed if the position was still vacant, and he told her they had hired someone else. Defendants did not hire Selent.
428. The effect of the practices complained of in paragraphs 12 to 427 above has been to deprive Black and Hispanic applicants of equal employment opportunities and to otherwise adversely affect their status as applicants because of their race and/or national origin.
COUNT TWO: UNLAWFUL RETALIATION 429. Plaintiff re-alleges and incorporates by reference paragraphs 1 to 428 above as if set forth fully herein. 430. Defendants have unlawfully retaliated against employees who opposed practices that they reasonably perceived to violate Title VII, in violation of Section 704 of Title VII, 42 U.S.C. § 2000e-3(a). Defendants’ retaliatory acts against such employees have included, but are not limited to, altering the terms, conditions, or privileges of their employment; bringing false
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allegations against them; subjecting them to heightened scrutiny; subjecting them to a retaliatory hostile work environment; and firing or constructively discharging them, or otherwise inducing their resignations.
431. As described in detail in paragraphs 37 to 123, the culture of discrimination is rooted in top corporate management and implemented in many ways by Defendants’ heavily centralized Human Resources department.
432. Director of Human Resources for retail stores, Brent Day, plays a leading role in the hiring of Store General Managers and in the sourcing, interviewing, and hiring of Store Human Resources Managers nationwide.
433. Day is also responsible for the overall investigation of discrimination claims arising in the stores. Many employees with employment discrimination complaints are told by Store Human Resources Managers to call “Corporate HR,” to report their discrimination complaints.
434. In the experience of many employees, Day frequently does not investigate or refer complaints to one of the Regional Human Resources Managers unless the complaining party is extremely persistent.
435. Day is aware of the retaliatory climate in Defendants’ stores. A Maintenance Manager and a Loss Prevention Team Lead in Katy, Texas, reported to Day in October 2006 that the Store General Manager threatened to retaliate against her employees if they complained to the “Corporate Office” about her. The Loss Prevention Team Lead further reported to Day that the Store General Manager told her employees that if they contacted the “Corporate Office,” she would find out and the employee would be terminated.
436. Defendants discourage complaints and retaliate against those who make them.
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Defendants’ Retaliation Against Managers 437. Several store managers, including Store Human Resources Managers, who have challenged Defendants’ policy of not hiring Black or Hispanic applicants, have been unlawfully terminated, constructively discharged, or otherwise subjected to retaliation. At times, those managers have directly confronted Brent Day with evidence of discriminatory hiring practices, but he has not investigated their contentions. At other times, those managers have directly confronted a Regional Human Resources Manager, such as Jill Klimas or John Sargent, with their evidence of discriminatory hiring practices, but these Regional Human Resources Managers have either urged the complaining party to desist or they have not investigated the contentions. 438. For example, the Assistant General Manager for the Islamorada Fish Company Restaurant in the Broken Arrow, Oklahoma, store was terminated in retaliation for complaining about derogatory and racially offensive comments that the Restaurant General Manager, Brian Goforth, made about applicants during a job fair. 439. Within days of reporting the racist and otherwise discriminatory comments to the Store Human Resources Manager, as well as to other managers, Defendants fired the Assistant General Manager. He was told that based on his comments and complaints, “we don’t think you’re a good fit for the company and we’re going to have to ask you to leave.” The Assistant General Manager informed Day about his termination and sent him an e-mail documenting the discrimination. Defendants did nothing. 440. Defendants also retaliated against the Human Resources Manager for the Pearl, Mississippi, store for engaging in protected activity. 441. Managers at the Pearl store asked the Human Resources Manager to fabricate employee write-ups, so the managers could later terminate the employees. On one occasion, a
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manager asked the Human Resources Manager to fabricate two write-ups for a Black cashier whom the manager referred to as a “nigger.” The Human Resources Manager refused and reported the incident to Brent Day.
442. On another occasion, the Pearl Store General Manager, Pat Renegar, prohibited the Human Resources Manager from hiring a Black, disabled applicant in a wheelchair. Once more, the Human Resources Manager reported this incident to Brent Day as well as other racial conduct, attitudes, and statements of managers in the store. Defendants took no action in response to these complaints.
443. The Human Resources Manager once recommended that they recruit a particular Black female he knew with human resources experience to work in the Human Resources department. Rather than considering the qualified applicant, Store General Manager Renegar asked what the applicant’s race was, and instead hired a young, less experienced, White female.
444. When the Human Resources Manager continued to refuse to participate in discrimination, Defendants eliminated some of his duties. He was no longer allowed to be involved in some of the store hiring. In March 2005, Renegar warned the Human Resources Manager that “it’s 5 against 1. And you’re the 1.” Renegar suggested that he work on his off days for free to assist other managers with their departments. Shortly after the Human Resources Manager refused, Renegar accused him of allegedly sexually harassing a female employee and using racial slurs. Renegar offered no details or information about the accusations or their source.
445. The Human Resources Manager was offered the choice of resigning or being terminated. He resigned.
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Retaliation Against Non-Managerial Employees 446. Similarly, when non-managerial employees complain of discriminatory practices and retaliation by store managers, Day has failed to take remedial action. Despite promising that he will advise the current or former employee of the outcome of the purported investigation, he rarely does so. 447. Additionally, when non-managerial employees complain of discriminatory practices within their stores, they are terminated or otherwise subjected to adverse actions which would dissuade a reasonable employee from complaining. 448. For example, Defendants retaliated against a “PACE” employee for engaging in protected activity at their Spanish Fort, Alabama, store. In late 2010, the PACE employee and a Black colleague were called “worthless niggers” by a White co-worker. A White Lead employee complained of this slur to the Store Human Resources Manager. The Human Resources Manager discredited the complaint after the accused employee denied making the slur. The manager did not sustain the allegation that a racial slur had been directed against Black employees, did not conduct a thorough investigation of the complaint, and did not interview any other witnesses. 449. The PACE employee was then called “nigger” by another co-worker. The Human Resources Manager again, without interviewing any other witnesses, failed to sustain that complaint because this second accused White worker also denied making the slur. 450. In the months after the PACE employee filed a discrimination complaint, Defendants did not call her back to work under the PACE program or consider her for other open positions.
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Retaliatory Climate 451. A retaliatory climate permeates many stores and discourages employees from complaining about employment discrimination and from obtaining any relief from the discrimination. 452. Several employees in Defendants’ Clarksville, Indiana, store feared that if they made a complaint, they would be terminated or otherwise subjected to retaliation. They also learned that their complaints were not kept confidential by either store managers or Corporate Human Resources Managers. 453. Employees discovered that messages left on the nationwide “hotline” in corporate headquarters were not kept confidential, and in some instances, Corporate Human Resources would help store managers identify employees who had complained anonymously, so that they could be disciplined or terminated. 454. For example, a former Visual Manager for the Clarksville store called Corporate anonymously several times to voice concerns of misconduct. Shortly after making her complaints, the Clarksville General Manager, Mike Benningfield, admonished staff to not complain. 455. The Visual Manager nevertheless then complained to the Regional Human Resources Manager, John Sargent, about how Benningfield, another manager, and the store Human Resources Manager were covering up employee complaints by sending out emails to managers instructing them to support the offending managers and deny any wrongdoing. She also complained to Sargent about retaliation and sex and race discrimination in the Clarksville store. The Visual Manager was laid off in January 2009.
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Complaints Discouraged 456. Those employees who did complain to regional or corporate Human Resources were rebuffed and/or subjected to adverse employment actions. 457. An employee who complained to Jill Klimas, Regional Human Resources Manager, about race and sex discrimination in the Bossier City, Louisiana, store was told not to act like a “victim.” 458. Defendants discourage complaints at the store, regional, and corporate levels. In the fall of 2007, for example, an Operations Manager in Garland, Texas complained to her Store Human Resources Manager about a sexually hostile work environment created by her General Manager. The Store Human Resources Manager immediately informed the General Manager of the complaint against him, and the General Manager then retaliated against the employee. The aggrieved employee then complained to a regional manager, which resulted in no action by Defendants. The employee finally complained directly to Day. He questioned if she really wanted to file a complaint, noting that it would take time and people away from their jobs. 459. Another employee was considered “trouble” for making complaints. During a job fair, the General Manager for the Pearl store told the Store Human Resources Manager not to talk with an employee from another store because that employee’s General Manager had said that the employee was “stirring up trouble” at his store. The Human Resources Manager understood this to be because the employee was complaining about sexual harassment and the racial imbalance in the store. The employee who was “stirring up trouble” was subjected to adverse employment terms and later terminated. 460. Further illustrative examples of such retaliation include, but are not limited to, retaliation against the following individuals:
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Demar Watson 461. Defendants retaliated against Demar Watson, Store Human Resources Manager at the Bossier City, Louisiana, store, for engaging in protected activity. After Watson opposed other managers’ unlawful discrimination, participated in EEOC’s investigation, and participated in an internal investigation of the Bossier City store, Defendants wrote Watson up and gave him a negative performance evaluation. The evaluation noted, “The EEOC investigation was a disaster.” Furthermore, after Watson terminated an employee for making derogatory comments in the store about race, sex, and age concerning another employee, as well as making threats, Defendants terminated Watson in retaliation. 462. When Watson became the Store Human Resources Manager in October 2006, he began investigating several pending complaints, including sexual harassment complaints. Watson reported on his investigations to Day. 463. Watson also became aware of racial comments that had been made by managers, including the Bossier City Store General Manager, Ed Billingsley. For example, Watson learned that Billingsley had told another manager, “we don’t hire that type of individual here” in reference to a Black, pregnant Cashier. 464. In the summer of 2007, Watson became aware that Assistant General Manager Richard Wisher did not want him to hire Black applicants. Wisher made comments about the number of Black applicants Watson interviewed numerous times, including informing Watson that “we’re hiring too many niggers.” 465. On one occasion, when Watson was interviewing a Black candidate for a position, Wisher made a throat slashing gesture while walking by Watson’s office. After the interview,
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Watson asked Wisher what he had meant by the gesture. Wisher responded, “that’s not the kind of individual we want” and said “they don’t fit our profile.”
466. Watson informed Wisher that his racially offensive behavior was inappropriate. Watson also informed Billingsley about Wisher’s behavior.
467. In 2008, Watson hired a Black applicant as a Cashier. Wisher referred to the Cashier as an “EE-OCK,” apparently a phonetically pronounced acronym or nickname for EEOC, and informed Watson he considered her an EEOC “plant.”
468. In February 2008, EEOC conducted interviews in Bossier City, Louisiana. EEOC investigators interviewed Watson for several hours.
469. After EEOC’s investigation at the store, Defendants hired a third-party consulting firm to conduct interviews in the store. The consultant also interviewed Watson. Jami Roper, Regional Human Resources Manager, was there for part of the investigation. During his interview, Watson shared information about the allegations of racial comments made by managers.
470. In June 2008, Roper wrote up Watson for alleged “loss of confidence” and for purportedly failing to follow company procedures in disclosing information. The reasons given for the write-up were false and were a pretext for unlawful retaliation. The write-up was an adverse action that would dissuade a reasonable person from opposing practices illegal under Title VII or from otherwise participating in investigations concerning alleged Title VII violations.
471. Watson sent Day a letter refuting the write-up. 472. In March 2009, Day sent Watson his evaluation for the 2008. He gave Watson a rating of “unacceptable.” Day informed Watson that “the EEOC investigation was a disaster.”
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Thus, Defendants clearly took action against Watson for participating in an investigation of alleged violations of Title VII. Watson’s previous annual reviews had always met or exceeded expectations. As a result of this rating, Watson did not receive a raise that year. The negative evaluation and lack of a raise were adverse actions that would dissuade a reasonable person from opposing practices illegal under Title VII or from otherwise participating in investigations concerning alleged Title VII violations.
473. Watson refuted the evaluation. 474. In 2008, Shawn Humpert transferred to the Bossier City store from Oklahoma City to be the new Store General Manager. 475. On one occasion, Watson recommended a Black applicant for the position of Fishing Team Lead. Humpert refused to interview him, saying he was not qualified. Watson disagreed and felt he was fully qualified. Humpert interviewed only White candidates for the position. 476. In August 2011, an employee in the Bossier City store complained to Watson that he was being harassed by another employee. The alleged harassment included comments about his age and sexual organs, as well as threats. Watson investigated the complaint and took witness statements. He discovered that the alleged harasser had also made a racially derogatory comment about another associate. 477. Watson provided all of the information and witness statements to Day, found the allegations to have merit, and recommended that the harasser be terminated. On August 9, 2011, Day authorized the termination. 478. Following the termination, Humpert, the Store General Manager, complained about the termination to Day.
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479. Day approached Watson at a job fair in Harlingen, Texas to discuss the termination of the associate for discriminatory behavior. Watson confirmed that he had spoken with Humpert about his investigation and reminded Day that he had authorized the termination. Watson also agreed to speak with Humpert about it again.
480. When Watson returned to the Bossier City store, he spoke with Humpert again about the reasons for the termination.
481. Watson also sent an e-mail to his assistant indicating that he would not have someone in the store making threats and discriminatory comments and could not support Humpert doing so.
482. A few weeks later, on September 7, 2011, Day terminated Watson purportedly for “poor judgment” and “loss of confidence.” Just the year before in Watson’s March 2010 performance evaluation, Day noted that Watson was “a good decision maker” and “uses sound judgment.” Defendants discharged Watson for participating in an EEOC and internal investigation, opposing practices made unlawful under Title VII, and/or for otherwise engaging in activity protected by the statute.
Laura Tarr 483. Starting in 2008, Defendants retaliated against Loss Prevention Agent Laura Tarr for engaging in protected activity at the Clarksville, Indiana, store. 484. Bass Pro hired Tarr to work as a Loss Prevention Agent in September 2008. 485. Tarr’s supervisors were Allen Bramer, Lead Loss Prevention Agent, and Rod Merten, Loss Prevention Manager.
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486. In approximately late October or early November 2008, Tarr complained to the Store Human Resources Manager, Mary Vaughn, that another Loss Prevention Agent, John Comer, was sexually harassing her.
487. Tarr told Vaughn about Comer’s harassment, which included the following conduct: sending Tarr text messages of himself naked; suggesting that they have sex in multiple places, including in a storage closet within the store; taking a picture of Tarr’s behind while she was bent over; refusing to trade days with Tarr unless she would come to his home and “get naked”; and misleadingly telling other employees that Tarr had sent him a picture of her breast. Before complaining to Vaughn, Tarr informed Comer that she objected to his harassment.
488. Vaughn asked Tarr to provide her complaint in writing. Tarr hand-wrote and signed her complaint in Vaughn’s presence. Vaughn stated that she would tell the General Manager, Mike Benningfield.
489. Vaughn reported the complaint to the Loss Prevention Manager, Merten. 490. Within a week after making the complaint, Loss Prevention Manager Merten and Lead Loss Prevention Agent Bramer called Tarr into Merten’s office, which also functioned as the store’s “interrogation room,” where Loss Prevention agents question people suspected of shoplifting. Vaughn was not present. Merten sat as his desk in front of Tarr, while Bramer stood behind her, between Tarr and the door. The supervisors reproached her for approximately 45 minutes, creating an environment which Tarr found hostile. They harshly admonished her and said she should never have complained about Comer to Human Resources. They discouraged her from going to Human Resources again. As a result of and in response to Tarr’s having complained, Merten and Bramer accused Tarr of “trying to stir up trouble.” They called her a “drama queen” for making a complaint. Furthermore, they blamed her for Comer’s actions,
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telling Tarr that any harassment was her own fault and suggesting that Tarr had invited Comer’s conduct. At one point, both Merten and Bramer stopped talking for about 10-15 minutes. After this period of prolonged silence, Tarr asked to leave and return to work. Merten and Bramer then resumed berating her.
491. Tarr felt intimidated by this experience. Bramer’s and Merten’s conduct caused her to conclude that Bass Pro thought that she was the wrongdoer for complaining about unlawful sexual harassment. She determined that she could not safely complain to Human Resources, because her supervisors had rebuked her for doing so. Tarr reasonably concluded that if she were to engage in additional protected activity, Bass Pro would subject her to further, and possibly more severe, retaliation.
492. After her complaint to Human Resources, other Loss Prevention Agents also made comments to Tarr suggesting that she should not have complained to Human Resources.
493. Although she had complained to the Human Resources Manager about Comer’s sexual harassment and provided a written statement, no Bass Pro officials followed-up with Tarr to ensure that her complaint had been resolved, or otherwise communicated with her concerning actions taken in response to her protected activity.
494. To Tarr’s knowledge, Bass Pro did not discipline Comer in any way for his harassing behavior, as reported in her complaint.
495. Shortly after complaining to Human Resources, Tarr requested a schedule change to avoid working with Comer. Bramer was responsible for creating the schedule for the approximately eight Loss Prevention Agents. Loss Prevention Agents usually worked two Agents to a shift.
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496. Bramer scheduled Tarr to work with Comer on the very next schedule after Tarr’s complaint. In the context of Tarr’s having been harassed by Comer, having reported Comer for sexual harassment, and having specifically requested that she not be assigned to work with Comer, Tarr reasonably construed that being scheduled to work with Comer was a failure of Bass Pro to address the sexual harassment and retaliation for her protected activity.
497. Bramer continually scheduled Tarr to work with Comer more often than she had worked with him before her complaint. Previously, Tarr had worked with Comer approximately one day a week. Following her complaint, Bramer scheduled Tarr to work with Comer up to three days a week. Because Comer did not work as many days as Tarr, almost every time Comer was scheduled to work, Tarr was scheduled to work with him. Tarr felt that Bass Pro’s repeated scheduling of her to work with Comer, after she complained of sexual harassment, was to punish and retaliate against her for having complained.
498. Tarr was uncomfortable working with Comer because of his harassment and hostility towards her. Comer was aware that Tarr had reported him for sexual harassment. After Tarr rejected Comer’s propositions and complained to Human Resources, Comer’s harassment changed and he became hostile towards her. Tarr and Comer had to work many hours in the store’s “monitoring room,” a small office with surveillance monitors that had no windows. Each time they worked together, he called her names such as “trouble-maker” and “bitch.” Tarr tried to avoid confrontations with Comer and to avoid being alone in the monitoring room with him as much as possible.
499. When they worked together, Comer sometimes left the monitoring room to walk the floor, leaving Tarr alone in the room for several hours without relieving her so she could use
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the restroom or take a break. This violated Bass Pro’s procedures and materially altered the terms or conditions of Tarr’s employment.
500. In addition to scheduling them to work together, Bramer also scheduled Tarr and Comer to work closing shifts, which ended between 10:30 and 11:00 pm. Working the closing shift required Tarr and Comer to stay after all other employees had left to do a final inspection of the store. They would then lock the doors and walk into the parking lot, either alone or with one manager. Tarr began parking in a different section of the parking lot further away, to avoid walking at night to her car with Comer. Bramer’s scheduling Tarr and Comer in this manner, after Tarr’s report of sexual harassment, adversely affected the terms or conditions of Tarr’s employment.
501. Additionally, the increased night shifts which Bass Pro required Tarr to work after complaining adversely affected her and her family. She had previously worked mainly morning or day shifts, when she had child care for her three-year old daughter. While working mainly night shifts, on occasion Tarr had to drive an hour away and leave her daughter with family for several days at a time. The resultant strain and emotional distress reasonably dissuaded Tarr from engaging in further protected activity.
502. In January 2009, Tarr gave Vaughn a note stating that she could no longer tolerate the work environment and management’s failure to correct the situation. Because of Bass Pro’s acts and omissions — including but not limited to the failure to take prompt remedial action in response to her sexual harassment complaints; verbally abusing Tarr for her protected activity; explicitly telling Tarr that she should not have complained and should not do so again; unreasonably rejecting Tarr’s request not to work with Comer; forcing Tarr to work more closely with Comer than before her protected activity; forcing her to work alone, in close proximity with
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Comer at night; failing to discipline her harasser in any way; failing to advise Tarr of any actions taken in response to her complaint; and imposing a schedule on Tarr which adversely affected her and her family — Tarr resigned.
503. Because Tarr engaged in protected activity, Bass Pro retaliated against her, including subjecting her to retaliatory harassment, in violation of Title VII.
Denise Marstall
504. Starting in 2009, Defendants unlawfully retaliated against Denise Marstall, a “Camo/Hunting” Lead at Defendants’ Auburn, New York store, for engaging in activity protected by Title VII of the Civil Rights Act of 1964.
505. Defendants hired Marstall to work as a Hunting Apparel Associate in 2005. She became a Lead in the Camo/Hunting department in 2008.
506. Marstall’s direct supervisor was Hunting Manager, Perry Planck. The General Manager of the store was Jeff Burdick. Planck was a supervisory employee and Bass Pro’s agent, within the meaning of Title VII.
507. Beginning in 2006, Marstall complained to Assistant Human Resources Manager, Rob Barber, that Planck’s treatment of her was unprofessional and that he displayed favoritism towards the male Leads in his department. She made several more similar complaints about Planck to Barber through 2009.
508. To Marstall’s knowledge, Bass Pro took no corrective actions in response to her complaints. By this inaction, Bass Pro knowingly subjected Marstall to further unlawful discrimination by allowing Planck’s conduct to continue, despite her complaints.
509. In 2009, Marstall learned from a fellow male Hunting Lead that he made approximately $14 an hour, whereas she earned only $10 an hour. This male Lead was hired approximately three years after Marstall, and had demonstrated absenteeism and performance
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problems. Marstall reasonably inferred that Bass Pro’s paying the male Hunting Lead at a higher hourly rate than it paid her constituted unlawful sex discrimination.
510. In late 2009, Marstall complained to the Assistant Human Resources Manager, Rob Barber, that she believed she was not being paid the same as other male Leads in her department. Barber responded that there was nothing he could do about her complaint and did nothing more. At the time, there were five male Leads and three female Leads in the Hunting Department.
511. In late 2009, Marstall and her fellow female Leads complained to Burdick that Planck treated them less favorably than their male Lead counterparts. Specifically, they complained that Planck assigned the female Leads more work and responsibilities than the male Leads and held the women to a higher performance standard. They stated that Planck fraternized with the male Leads and not with female Leads. They also stated that Planck failed to treat the women professionally and undermined their authority in front of subordinate employees. Marstall specifically complained about the apparent pay disparity between male and female Leads. Planck was present at the meeting.
512. Burdick and Planck became angry at Marstall and the other women for complaining. Burdick in particular dismissed the complaints and told Marstall she should be happy to have her job and if she was not, she could go to the Bass Pro competitor store across the street and see if she liked it better there. Marstall felt intimidated by Burdick and Planck at the meeting, and she immediately regretted raising her complaints.
513. Following the complaint, Burdick and Planck treated Marstall with further hostility. Burdick began talking to Marstall abrasively, frequently using curse words to refer to her work product. This conduct was markedly harsher than before, and followed quickly upon
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Marstall’s complaint. Marstall reasonably inferred that Burdick was harassing her in retaliation for her protected activity. Burdick’s harsh criticisms of Marstall’s performance were not justified or based on the manner in which she was doing her job; rather, they were committed in retribution for her complaints of sex discrimination.
514. Planck also began to criticize her job performance in ways dramatically different than before she complained. Both Planck and Burdick often made her tear down displays and set them up again within unrealistic timeframes. Planck also chastised her on the storeroom floor and threatened her with termination if he learned she was talking about employee pay. This verbal abuse constituted a direct threat of additional retaliation if Marstall were to engage in further protected activity.
515. In addition, Planck added to her workload, assigned her more responsibilities than her male counterparts, and altered her schedule in such a way that she no longer had consistent work dates and times and had to work most weekends. The schedule change — which was not based on business needs, and which was retaliatory — was particularly difficult on Marstall as it affected her ability to care for her daughter.
516. In a retaliatory effort to discourage and demoralize Marstall, and to alter the terms or conditions of her employment, Bass Pro also stopped acknowledging when Marstall received customer “star cards,” which customers give employees for high quality customer service. Employees are eligible for workplace promotions and prizes based on the number of star cards they receive. Bass Pro purports to use this system of recognition to heighten employee morale and to extol merit. Prior to her complaint, Marstall often received these star card recognitions and as a consequence, monetary prizes and other rewards. For example, she had received $50 and $100 store gift cards, preferred parking spots, an “Employee of the month” plaque, paid days
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off, frequent invitations to “star” employee luncheons, and “star point” store discounts. After the complaint, she stopped receiving any of these recognitions. By depriving Marstall of these terms or conditions of employment, which her performance merited, Bass Pro adversely affected Marstall’s work environment. Marstall reasonably found this retaliatory conduct by Bass Pro to be discouraging and demoralizing.
517. Approximately three weeks after Marstall and other female Leads complained to the managers of sex discrimination, Planck called Marstall to Burdick’s office to issue her what Planck referred to as a “final write-up” prior to termination. Bass Pro had never previously given Marstall a write-up or any kind of discipline. A first write-up could not properly be considered a “final” write-up given Bass Pro’s stated progressive discipline system. Marstall reasonably discerned that Bass Pro was improperly deviating from its own progressive discipline system, and threatening Marstall with discharge, in retaliation for her protected activities. A week earlier, Marstall had had a medical emergency and followed company procedure to excuse her absence for two days. Planck based the write-up on the false accusation that Marstall was a “no-show” because she had not called in on the second day of her absence to notify them that she would not be at work.
518. Marstall reasonably concluded that there was no legitimate basis for the write-up because she had followed company procedure and given the store notice that she would be out two days due to her emergency. Marstall reasonably inferred that Planck wrote her up, and threatened to terminate her in retaliation for her protected activities. She reasonably concluded that Planck and Burdick issued the write up to retaliate and intimidate her, to dissuade her from further protected activity, and to affect adversely the terms or conditions of her employment.
519. In late 2009 and again in early 2010, Marstall complained of Planck’s retaliatory
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treatment and the sex-based pay discrimination to Barber and to Human Resources Manager Karen Roebuck. Roebuck told Marstall to “lighten up.” Both managers told her they would look into the situation.
520. In late spring/early summer 2010, Roebuck informed Marstall that Bass Pro would give her a $0.40 per hour raise. Marstall believed that she was entitled to a greater increase, particularly given the fact that she learned that a less experienced male Lead was paid approximately $4 more per hour. Roebuck admonished Marstall that the increase was to stay between “her and the fencepost,” which Marstall understood to mean that she was supposed to take the raise, remain quiet, and stop complaining about her pay.
521. Viewed in the aggregate, Burdick’s, Planck’s, Barber’s and Roebuck’s responses to the complaints of sex discrimination adversely affected Marstall and constituted retaliatory harassment. As a result of the managers’ failure to remedy the sex discrimination and their subsequent retaliation against Marstall, Marstall was forced to resign in June 2010.
522. Bass Pro’s retaliatory actions in response to Marstall’s protected activities reasonably compelled Marstall to resign and/or be constructively discharged.
Velecia Cruse 523. Beginning in 2008, Defendants retaliated against Store Human Resources Manager Velecia Cruse for engaging in protected activity at the Katy, Texas, store. 524. Cruse, a Black female, had many years of human resources experience when Defendants hired her. When Cruse started working at the Katy store in August 2008, she began to notice discriminatory practices including, among other things, that: Whites with little or no work experience were being interviewed and hired while Blacks with experience were being rejected; Black employees were assigned undesirable shifts; a White manager and other White
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employees were permitted to challenge the Store Human Resources Manager’s authority in their attempt to strip a Black co-worker’s “employee of the month” recognition; and one of the store Leads impeded the hiring prospects of Black applicants, but not of White applicants, by requiring Black applicants to take a test that was typically given to recently hired employees.
525. Cruse complained of the discriminatory practices to Katy Store General Manager Craig Herpin, Regional Human Resources Manager Jill Klimas, and the Director of Human Resources, Brent Day.
526. Once Cruse started complaining, management retaliated against her by scrutinizing her work more intensely than before and assigning her undesirable work hours.
527. In July 2009, Cruse complained about the retaliation. 528. Shortly after Cruse’s retaliation complaint, Regional Human Resources Manager Klimas visited the Katy store and accused Cruse of payroll irregularities. 529. Defendants fired Cruse within eight days of receiving notice of her retaliation complaint.
Eric Benitez 530. Defendants retaliated against Eric Benitez for engaging in activity protected by Title VII at their Miami, Florida, store. 531. Cuban-American Benitez worked for Defendants as a Service Tech from 2007 until he was terminated in 2011. Though Benitez had more seniority, a White co-worker, William, was promoted to the Service Manager position. William made derogatory comments to Benitez and other Cuban-American employees, including calling them “Spic.” 532. Benitez complained several times about William’s behavior to the Store General Manager, Scott Tarlow, and he also complained about William’s conduct to other managers. In
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early 2011, Benitez complained, in writing, to Human Resources about other problems he was having with William. Defendants did not meaningfully investigate Benitez’s complaint.
533. Within several weeks of Benitez’s last complaint, Defendants fired him. His termination was based on a false allegation brought against him by William, the same White supervisor Benitez complained had directed an anti-Hispanic slur against him and other Hispanics.
534. The effect of the practices complained of in paragraphs 430 to 533 above has been to deprive employees of equal employment opportunities and to otherwise adversely affect their status as employees because of their complaints or other activities protected under Title VII.
COUNT THREE: RECORDKEEPING VIOLATIONS 535. Defendants have failed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to preserve records relevant to the determination of whether unlawful employment practices have been or are being committed. Records which Defendants unlawfully failed to retain include, but are not limited to, relevant employment applications and personnel files, tests administered to applicants, lists of job candidates, electronic messages and audio and documentary records of efforts to contact to the corporate complaint center (known as the “hotline”). For example, after receiving notice of the Commissioner Charge which underlies this action, Defendants allowed the destruction of hotline recordings containing discrimination complaints made by employees.
INTENT AND MALICE 536. The unlawful employment practices complained of in Count One and Count Two were and are intentional.
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537. The unlawful employment practices complained of in Count One and Count Two were and continue to be done with malice or with reckless indifference to the federally protected rights of Black and Hispanic applicants, and to the federally protected rights of employees who engaged in activity protected by Title VII.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, their officers, agents, servants, employees, attorneys, successors, assigns, and all persons in active concert or participation with them, from engaging in discrimination based on race and national origin in their hiring and from retaliating against employees who oppose these and other discriminatory practices, or otherwise engage in activity protected by Title VII. B. Order Defendants to institute and carry out policies, practices, and programs which provide equal employment opportunities for Black and Hispanic applicants, and for employees who participate in activity protected by Title VII or who oppose practices made unlawful by Title VII, and which eradicate the effects of Defendants’ past and present unlawful employment practices. C. Order Defendants to make whole aggrieved Black and Hispanic applicants and employees, and victims of unlawful retaliation as described above, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of Defendants’ unlawful employment practices, including but not limited to rightful-place hiring of qualified Black and Hispanic applicants and, where appropriate, re-instatement.
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D. Order Defendants to make and preserve all records, in accordance with the provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(c), relevant to the determination of whether unlawful employment practices have been or are being committed.
E. Order Defendants to make whole aggrieved Black and Hispanic applicants and employees, and victims of unlawful retaliation as described above, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in Count One and Count Two, including job search expenses, in amounts to be determined at trial.
F. Order Defendants to make whole aggrieved Black and Hispanic applicants, and victims of unlawful retaliation as described above, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in Count One and Count Two, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
G. Order Defendants to pay aggrieved Black and Hispanic applicants and victims of unlawful retaliation as described above, punitive damages for Defendants’ malicious and reckless conduct described in Count One and Count Two, in amounts to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
I. Award the Commission its costs of this action.
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JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by this Complaint
which may be decided by a jury.
Respectfully submitted,
P. DAVID LOPEZ General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel Equal Employment Opportunity Commission 131 M Street, N.E. Washington, D.C. 20507
/s/ Konrad Batog KONRAD BATOG Admitted Pro Hac Vice NY Bar: 4420873; NJ Bar: 004312006 Trial Attorney U.S. Equal Employment Opportunity Commission 33 Whitehall Street, 5th floor New York, New York 10004 (212) 336-3700 Facsimile: (212) 336-3623 konrad.batog@eeoc.gov
/s/ Gregory T. Juge GREGORY T. JUGE Attorney-in-Charge Acting Supervisory Trial Attorney La. State Bar # 20890 U.S. Equal Employment Opportunity Commission 1555 Poydras Avenue, Suite 1900 New Orleans, Louisiana 70112 Direct: (504) 595-2877 Fax: (504) 595-2886 Email: gregory.juge@eeoc.gov
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/s/ Robert D. Rose ROBERT D. ROSE Admitted Pro Hac Vice NY Bar: RR-9174 Regional Attorney U.S. Equal Employment Opportunity Commission 33 Whitehall Street, 5th Floor New York, New York 10004 Direct: (212) 336-3708 Fax: (212) 336-3623 Email: robert.rose@eeoc.gov
OF COUNSEL: JIM SACHER Regional Attorney ROSE ADEWALE-MENDES Supervisory Trial Attorney Equal Employment Opportunity Commission 1201 Louisiana St., 6th floor Houston, Texas 77002
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CERTIFICATE OF SERVICE I certify that counsel for Defendants have been served with the EEOC’s FOURTH AMENDED COMPLAINT via the Court’s CM/ECF system. Dated: June 13, 2014

/s/ Konrad Batog

\

KONRAD BATOG

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 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

BASS PRO OUTDOOR WORLD, LLC, §

and TRACKER MARINE, LLC

§

§

Defendants.

§

Case No. 4:11-CV-3425

MEMORANDUM AND ORDER

Now pending before the Court are the Equal Employment Opportunity Commission’s

(“EEOC’s” or “the Commission’s”) Motion for Reconsideration and a Renewed Motion for

Summary Judgment on behalf of Defendants Bass Pro Outdoor World, LLC and Tracker Marine, LLC (“Defendants” or “Bass Pro”). The Motion for Reconsideration1 presents the question

whether the EEOC may, in a lawsuit initiated by a Commissioner’s Charge and brought pursuant

to 42 U.S.C. § 2000e-5 (§ 706 of Title VII), rely on the standard of proof set forth by the

Supreme Court in Franks v. Bowman Transportation Company, Inc., 424 U.S. 747 (1976), and

International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Though it did not

consider the issue in quite these terms, the Court essentially answered in the negative in an

earlier Memorandum and Order. (Doc. No. 53.) The EEOC has several times asked the Court to

revisit that determination. Having reviewed all new submissions and the relevant case law, the

Court concludes that its earlier ruling was in error and that, subject to constraints imposed by the

1 The Federal Rules of Civil Procedure do not formally recognize Motions for Reconsideration and, indeed, here the EEOC has termed its submission a Motion for Application of the Franks / Teamsters Model to the Section 706 Class Hiring Claim. For all intents and purposes, however, the Commission’s submission is, in the colloquial sense, a Motion for Reconsideration.

Seventh Amendment and basic manageability factors, the Commission can employ the Teamsters framework to prove its § 706 claims.
In the second part of this Order, the Court considers Bass Pro’s Renewed Motion for Summary Judgment, in which Defendant reiterates its request that the Court dismiss the lawsuit on account of the EEOC’s purported failure to satisfy its pre-suit obligations. Bass Pro advances three principal arguments: that the Court was mistaken in concluding that the EEOC had not acted in bad faith in the course of conciliating its § 706 claims; that, regardless of how the Commission conducted itself in the first conciliation period, it exhibited bad faith during the recent stay; and that the EEOC failed adequately to investigate its claims before filing suit. After careful consideration of all three — the third in particular — the Court DENIES Bass Pro’s Motion.
The disputes presented by these two motions reflect a fundamental disagreement as to the role that the Commission is to play in the vindication of rights guaranteed by Title VII and the scope of its authority to represent those who may have been aggrieved by unlawful employment practices. This clash appears to present itself in a great number of Title VII suits in which the EEOC is involved. Yet, despite the frequency with which these questions arise, the lower courts have been riven by disagreement — as to the ultimate answers, yes, but more vexingly, as to the proper way of thinking about the issues. Indeed, this is an area of law ripe for further illumination from the appellate courts. All of this is to say that, while the Court ultimately sides with the EEOC on both Motions, it is fully sensitive to the strength of the antithesis. I. PROCEDURAL BACKGROUND
A more exhaustive account of the relevant procedural background was set forth in this Court’s most recent Memorandum and Order. (Doc. No. 151.) To summarize, the EEOC first
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filed suit in September 2011, alleging a “pattern or practice of unlawfully failing to hire Black and Hispanic applicants” and unlawful retaliation against individuals who opposed Bass Pro’s practices. (Doc. No. 1.) The Commission filed an Amended Complaint in January 2012 (Doc. No. 23) and Defendants moved to dismiss soon thereafter (Doc. No. 32). In the Order that is the subject of this Motion to Reconsider — and discussed in more detail below — this Court granted in part and denied in part the Motion to Dismiss. (Doc. No. 53 at 9.)
The Commission again amended its complaint. (See Doc. No. 61.) The Second Amended Complaint described the EEOC’s allegations in far greater detail than ever before, including descriptions of many of the individuals on whose behalf the Commission was pressing claims. Defendants filed another motion to dismiss, which the Court again granted in part and denied in part. EEOC v. Bass Pro Outdoor World, LLC, No. 4:11-CV-3425, 2013 WL 1124063 (S.D. Tex. Mar. 18, 2013) (Doc. No. 99). The Court granted leave to amend, which the Commission timely did in April 2013. (Doc. No. 104.)
The parties then both filed motions for summary judgment. Arguing that the EEOC had abdicated its responsibility to conciliate in good faith, Defendants asked the Court to dismiss the lawsuit (Doc. No. 119); contending that the sufficiency of its endeavors to conciliate is not subject to judicial review, the EEOC essentially asked that the Court not consider Bass Pro’s Motion (Doc. No. 137.) The Court ultimately denied both requests, though it ordered a thirtyday stay for additional conciliation of the EEOC’s § 706 claims. See EEOC v. Bass Pro Outdoor World, LLC, 4:11-CV-3425, 2013 WL 5515345 (S.D. Tex. Oct. 2, 2013) (Doc. No. 149); EEOC v. Bass Pro Outdoor World, LLC, — F. Supp. 2d. —, 4:11-CV-3425, 2014 WL 838477 (S.D. Tex. Mar. 4, 2014) (Doc. No. 151).
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Further attempts at conciliation were unsuccessful, prompting Defendants to file a
Renewed Motion for Summary Judgment (Doc. No. 160). The Commission, for its part, filed a
Fourth Amended Complaint and filed the instant Motion for Application of the Franks /
Teamsters Model to the Section 706 Class Hiring Claim (Doc. No. 172).
II. MOTION FOR RECONSIDERATION2
A.
In its March 2012 Motion to Dismiss, in the course of arguing for dismissal of the
EEOC’s claims brought pursuant to § 706, Defendants “accuse[d] the EEOC of attempting,
impermissibly, to bring a pattern or practice claim pursuant to § 706 so that it can recover
compensatory and punitive damages based on an Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 336 (1977), model.” (Doc. No. 53 at 10-11.) Defendants explained that they
“oppose[d] the EEOC’s attempt to merge § 706 and § 707 into a single, non-existent ‘hybrid’
claim.” (Id. at 11.)
In response, “[t]he EEOC insist[ed] that it c[ould] invoke the Teamsters model of proof
to establish a pattern or practice of hiring discrimination under either § 706 or § 707,” noting that
2 Both parties allude to the law-of-the-case doctrine, but it is no impediment to the Court reconsidering its own prior ruling. That doctrine “preclude[s] a reexamination of issues of law decided on appeal, explicitly or by necessary implication, either by the district court on remand or by the appellate court in a subsequent appeal.” Chapman v. Nat’l Aeronautics & Space Admin., 736 F.2d 238, 241 (5th Cir. 1984); see also 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478.6 (2d ed. 2013). Here, the Court intends only to reexamine its own ruling; Federal Rule of Civil Procedure 54(b) grants the district court the authority to do so for “for any reason it deems sufficient.” United States v. Renda, 709 F.3d 472, 479 (5th Cir. 2013) (internal quotation marks omitted). Indeed, the Fifth Circuit has stated unambiguously that “the law-of-the-case doctrine does not operate to prevent a district court from reconsidering prior rulings.” Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir. 2010). As the Court has said before, when it at first rules in error, it will, whenever practicable, attempt to set things right. To borrow from Justice Frankfurter, “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).
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“the language of § 706 does not circumscribe the EEOC’s enforcement authority to only individual disparate treatment claims.” (Id. at 12.) The EEOC “accuse[d] Defendants of conflating proof models with causes of action,” adding that “it does not allege a violation of § 706 or § 707—which constitute Title VII’s enforcement provisions — but rather a violation of § 703, 42 U.S.C. § 2000e–2.” (Id. at 13.)
After considering those arguments and surveying relevant case law, the Court decided that “the EEOC cannot bring a hybrid pattern or practice claim that melds the respective frameworks of § 706 and § 707.” (Id. at 29.) To that end, the Court “interpret[ed] § 706 to not provide a vehicle for pattern or practice claims.” (Id.) It did not agree with Plaintiff that the Supreme Court’s decision in General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980), or the Sixth Circuit’s decision in EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir. 1980), counseled in favor of a holding to the contrary. (Id.) And with that decided, the Court determined that Federal Rule of Civil Procedure 12(b)(6) required dismissal of the EEOC’s § 706 claims. (Id. at 31.)
The EEOC has since repleaded its § 706 claims and they are no longer the subject of a Motion to Dismiss for Failure to State a Claim. Nevertheless, the Commission has asked the Court to reconsider its determination that § 706 claims cannot be proved using the Teamsters model of proof.
B. 1. Statutory Backdrop Section 703 of Title VII of the Civil Rights Act of 1964 makes it unlawful for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,
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because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). To enforce § 703, 42 U.S.C. § 2000e-4 (§ 705) creates the EEOC and “charge[s it] with the enforcement of Title VII.” Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998).
As the EEOC was originally only granted the ability to employ “informal methods of conference, conciliation, and persuasion,” the 1972 Amendments to the Civil Rights Act gave rise to the modern version of § 706, the purpose of which, “plainly enough, was to secure more effective enforcement of Title VII.” General Telephone, 446 U.S. at 325. As amended, § 706 now requires that, upon the receipt of a charge “filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission,” the EEOC is to serve the employer with notice of that charge and undertake an investigation. § 706(b). Where the Commission uncovers “reasonable cause” to believe the charge, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Id. Section 706(f)(1) then authorizes the Commission to bring suit in the event that conciliation fails to secure a settlement. Section 707, meanwhile, authorizes suits alleging “a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter.” 42 U.S.C. § 2000e-6. Section 707 allows the Commission to request a three-judge district court in cases of “general public importance” and permits appeals from such courts directly to the Supreme Court. § 707(b).
2. Precedential Background As a general proposition, violations of § 703 can be proven using direct or circumstantial evidence. Unsurprisingly, employment discrimination plaintiffs are nearly always forced to rely on the latter, as “smoking gun” style direct evidence is exceedingly difficult to unearth. When an individual brings suit, or where the EEOC brings suit on behalf of a single individual, the most
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common method of adducing circumstantial evidence of discrimination is the framework set forth by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). There, the Court crafted a three-step process for proving discrimination through circumstantial evidence. First, the plaintiff “must carry the initial burden under the statute of establishing a prima facie case of [prohibited] discrimination.” Id. at 802. The Court explained that he or she could do so “by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. Where the plaintiff can state a prima facie case, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. This burden is one of production, not of persuasion. If it is met, the burden shifts once more to the plaintiff, who must show that the employer’s stated reason for taking an adverse employment action against the employee “was in fact pretext.” Id. at 804. The McDonnell Douglas framework has been fine-tuned over the years, and modified, as necessary, for different sorts of claims, but its essence endures as herein described. See, e.g., Haire v. Bd. of Sup’rs of Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).
McDonnell Douglas does not, however, offer the only way to prove discrimination through circumstantial evidence. In Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (1976), the Supreme Court addressed “whether identifiable applicants who were denied employment because of race after the effective date and in violation of Title VII . . . may be awarded seniority status retroactive to the dates of their employment applications.” Id. at 750. There, petitioner brought a putative class action, pursuant to § 706, against his former employer, respondent
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Bowman Transportation, as well as his unions, alleging race discrimination. Id. The district court found that Bowman had engaged in a pattern of race discrimination that permeated its hiring, transferring, and discharging of employees, and that those practices also affected Bowman’s collective-bargaining agreement. Id. at 751. The district court granted class certification and created two sub-classes, one comprised of black non-employees who applied for over-the-road truck driver positions and another made up of black employees who applied to transfer into those positions. Id. The court ordered that Bowman notify members of both subclasses of their right to priority consideration for the driving positions, but it declined “to grant to the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay and seniority status retroactive to the date of individual application for an [over-the-road] position.” Id.
The district court offered two bases for its denial of seniority relief to unnamed class members. Id. at 771. First, the district court reasoned that unnamed class members had not filed administrative charges with the EEOC. Id. The Supreme Court rejected that rationale as directly contravened by precedent. Id. Second, the district court premised its ruling on the fact that, as to the unnamed class members, no evidence probative of “vacancy, qualification, and performance” had been presented. Id. at 772. That justification for denying relief was likewise repudiated. The Supreme Court explained that “[g]eneralizations concerning such individually applicable evidence cannot serve as a justification for the denial of relief to the entire class.” Id. Instead, it reasoned that, when a class member eventually sought the equitable relief ordered by the district court, the employer would have occasion to prove that the class member in question had not in fact been the victim of race discrimination. Id. In short, in the language most important for present purposes, the Court concluded that “petitioners here have carried their burden of
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demonstrating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be upon respondents to prove that individuals who reapply were not in fact victims of previous hiring discrimination.” Id. at 772 (citing McDonnell Douglas, 411 U.S. 792; Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 443-44 (5th Cir.), cert. denied, 419 U.S. 1033 (1974)); see also id. at 773 n.32 (explaining that “Bowman may attempt to prove that a given individual [class member] was not in fact discriminatorily refused employment as an OTR driver in order to defeat the individual’s claim to seniority relief as well as any other remedy ordered for the class generally”).
That standard of proof received more exhaustive explication one term later in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). There, the federal government brought a § 707 suit against T.I.M.E.-D.C., Inc., a common carrier, and the International Brotherhood of Teamsters, the union that represented most of the carrier’s employees. Both courts below concluded “that the employer had violated Title VII by engaging in a pattern and practice of employment discrimination against Negroes and Spanish-surnamed Americans, and that the union had violated the Act by agreeing with the employer to create and maintain a seniority system that perpetuated the effects of past racial and ethnic discrimination.” Id. at 328.
In reviewing those decisions, the Supreme Court was asked to address petitioner’s contention that “no employee should be entitled to relief until the Government demonstrates that he was an actual victim of the company’s discriminatory practices.” Id. at 357. The Court began by explaining that petitioners had “seize[d] upon the McDonnell Douglas pattern as the only means of establishing a prima facie case of individual discrimination.” Id. at 358. Not so, said the Court. To the contrary, the Court noted that its “decision in [McDonnell Douglas] . . . did not
9

purport to create an inflexible formulation.” Id. at 358. Rather, the Court reiterated that “‘the facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from (a plaintiff) is not necessarily applicable in every respect to differing factual situations.’” Id. at 358 (alterations omitted) (quoting McDonnell Douglas, 411 U.S. at 802 n.13). As such, the Court was able to clarify that that “[t]he importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Id.
That provided a natural segue to Franks. The Teamsters Court explained Franks’ posture and holding and then summarized that “[t]he Franks case thus illustrates another means by which a Title VII plaintiff’s initial burden of proof can be met.” Id. at 359. In a footnote that followed, the Court further elucidated that “[t]he holding in Franks that proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief is consistent with the manner in which presumptions are created generally.” Id. at 359 n.45. It explained that “[p]resumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party’s superior access to the proof.” Id. (citations omitted). The Franks presumption adhered to both of those principles:
Although the prima facie case did not conclusively demonstrate that all of the employer’s decisions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer's evaluation of the applicant’s qualifications, the company’s records were the most relevant items of proof. If the refusal to hire was based on other
10

factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decision-making process. Id. The court then explained why pattern-or-practice suits fit “squarely within our holding in Franks” and how the framework set forth in Franks would apply in the case at bar. Id. at 360. It is against this backdrop that the EEOC argues that it should be permitted to prove its § 706 claims using the Franks/Teamsters model of proof.
C. At the centerpiece of the Commission’s argument is Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012), cert. denied, 134 S. Ct. 92 (2013). Plaintiff Mirna Serrano had several times applied unsuccessfully to work for defendant Cintas in Michigan and thus filed an EEOC charge alleging sex discrimination. Id. at 889. The EEOC investigated Serrano’s case, as well as Cintas’s hiring practices throughout Michigan, and issued a determination stating that it had reasonable cause to believe that Cintas had discriminated against Serrano and “females as a class.” Id. The EEOC immediately began to conciliate on behalf of “Serrano, one-hundred and eleven other specified women, and an unspecified number of ‘other similarly situated females.’” Id. (record citations omitted). In May 2004, while conciliation was still ongoing, Serrano filed a Title VII class-action complaint in the Eastern District of Michigan. Id. at 890. Once conciliation concluded in 2005 without an agreement, the Commission intervened in Serrano’s suit. Id. The individual claims wended their way through the court over the next several years, with all private plaintiffs ultimately out of the case by September 2010. Id. The EEOC continued to litigate on behalf of “a class of women in the State of Michigan.” Id. (citation to the record omitted). The district court proceeded to enter several orders adverse to the EEOC. First, defendant successfully moved for judgment on the pleadings on the grounds that the
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Commission could not pursue a pattern-or-practice claim under § 706. Id. Next, the court denied several discovery motions aimed at fleshing out the Commission’s individual § 706 claims. Then, the court denied the Commission’s motion to amend its complaint to add a § 707 claim. Finally, the court granted summary judgment in defendant’s favor on each of the individual claimants’ claims and granted defendant’s motion alleging administrative default. Id.
On appeal, the Sixth Circuit deemed the “most salient” issue to be “the disagreement among the parties as to whether the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas . . . burden-shifting framework, or whether it may employ the pattern-or-practice framework announced by the Supreme Court in International Brotherhood of Teamsters v. United States.” Id. at 891-92. In short, it addressed the exact question posed here.
The Court began its analysis by “reviewing the legal landscape for Title VII discrimination claims and situating the McDonnell Douglas and Teamsters frameworks within that context.” Id. at 892. As this Court has, it noted that “[t]he Title VII jurisprudence has developed to allow plaintiffs to make their showing of discriminatory intent for disparatetreatment claims either through direct or circumstantial evidence.” Id. at 892 (citations omitted). It then reviewed the McDonnell Douglas and Teamsters frameworks. The court concluded that “[t]he two structures are similar insofar as they impose the initial burden on the plaintiff to present facts sufficient to create an inference of discrimination” but that “the substance of what the plaintiff must prove to prevail in establishing a prima facie case varies under each framework.” Id. at 893.
With the stage set, the court moved to address “whether the EEOC may employ the Teamsters framework only when it acts pursuant to § 707.” Id. at 894. It answered that question
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in the negative. Id. First, the court acknowledged that “Cintas is correct that § 706 does not contain the same explicit authorization as does § 707 for suits under a pattern-or-practice theory.” Id. (comparing the text of § 706 and § 707 and highlighting the explicit reference to “pattern or practice” in the latter section). Nevertheless, it explained, “relevant Supreme Court precedent suggests that the exclusion of pattern-or-practice language from § 706 does not mean that the EEOC may utilize a pattern-or-practice theory only when bringing suit under § 707. Instead, it suggests that the inclusion of the language in § 707 simply means that the scope of the EEOC’s authority to bring suit is more limited when it acts pursuant to § 707.” Id. at 894.
To support that proposition, the court noted that “[t]he premise for the Supreme Court’s decision in Teamsters was that McDonnell Douglas did not create ‘an inflexible formulation’ for burden shifting, but rather embodied the ‘general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.’” Id. (quoting Teamsters, 431 U.S. at 358). The court observed, as this one has, that Teamsters taught that a plaintiff has flexibility in how she meets that initial burden, and variance based on the facts of the case is expected. Id. In that vein, the Serrano court concluded that “[t]he Teamsters opinion, while ostensibly specific to suits that the EEOC brings pursuant to § 707, in no way indicated an intent to tie the pattern-or-practice framework exclusively to the EEOC’s enforcement authority under § 707.” Id. Rather, the court emphasized, Teamsters’s “reliance on Franks, a class-action case invoking § 706, suggests that the holding of Teamsters is not to be so narrowly circumscribed.” Id. at 895. And, the Serrano court asserted that “[s]ubsequent Supreme Court decisions affirming the viability of EEOC class claims under § 706 and Congress’s ‘general intent to accord parallel or overlapping remedies against discrimination’ further support this reading of
13

Teamsters,” citing in support of that conclusion (and quoting) General Telephone, 446 U.S. at 333. Id.
The strongest argument against the Commission’s position, the Serrano court concluded, was that “allowing the EEOC to pursue Title VII claims pursuant to the Teamsters framework under § 706 would render § 707 superfluous — a result that Congress could not have intended.” Id. at 895. Serrano further explained that Cintas’s argument was “buttressed by [its] contention that Congress’s 1991 amendments to § 706 adding compensatory and punitive damages — remedies not added to § 707 — evidence a desire to prevent the availability of these remedies when the EEOC seeks to vindicate pattern-or-practice discrimination.” Id. The court acknowledged that “Cintas has a point that reading § 706 to permit Teamsters-style claims creates some overlap with § 707” and that “Congress may have wanted to provide the EEOC with two different vehicles for initiating two different types of Title VII suits, each with its own advantages and disadvantages in terms of scope, burden of proof, and available remedies.” Id. at 895-96. The court, however, found “an important distinction [that] prevents § 707 from becoming superfluous even if Teamsters applies in the § 706 context: § 707 permits the EEOC to initiate suit without first receiving a charge filed by an aggrieved individual, as it must when initiating suit under § 706.” Id. at 896 (citing EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427, 2007 WL 844555, at *9 (N.D. Ill. Mar. 16, 2007)). That is, the court determined that “[i]t [wa]s reasonable to conclude that the presence of a previously filed charge by an aggrieved person was the distinction upon which Congress wished the availability of particular remedies to rise and fall.” Id.
Finally, the court also cast aside Cintas’s argument that “allowing the EEOC to pursue the pattern-or-practice method for § 706 claims will allow the EEOC to have its cake and eat it
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too’ because the Teamsters framework provides a more generous standard of proof and § 706 affords greater remedies.” Id. The fatal flaw to that argument, the court explained, was the assumption that the Teamsters framework embodies a more lenient standard. Rather, “it is simply a different standard of proof.” Id. In fact, the initial burden in Teamsters — proving “that discrimination ‘was the company’s standard operating procedure’” — is more demanding than what McDonnell Douglas requires. Id. (quoting Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012)). Consequently, “[i]t is only because this initial requirement is more arduous that after the showing is made it is assumed ‘that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.’” Id. (quoting Teamsters, 431 U.S. at 362). In short, the court summed up, “the EEOC must always weigh the risks — as well as the benefits — of proceeding under the Teamsters framework, for doing so involves a greater chance of losing at the prima facie stage.” Id.
In the end, the court of appeals concluded that “the district court erred in concluding that the EEOC may not pursue a claim under the Teamsters pattern-or-practice framework, pursuant to its authority vested in § 706 of Title VII.” Id.
D. This Court finds Serrano persuasive. This Court, like the Serrano court, takes from McDonnell Douglas, Franks, and Teamsters that the Supreme Court has sanctioned a flexible approach to proving Title VII violations that can be adapted to the case at hand. The Court does not take from those cases that the framework to be used in proving a claim flows from the code section under which the suit is initiated. Indeed, the Court finds it significant that Franks itself was a case brought pursuant to § 706. The result in Serrano is consistent with the statutory text
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and purpose, and it is supported by precedent from the Supreme Court, several courts of appeals, and other district courts. Defendant’s arguments to the contrary are unavailing.
1. Statutory Text The text of § 706 does not preclude use of the Teamsters model of proof. Section 706(a) states that the EEOC is “empowered . . . to prevent any person from engaging in any unlawful employment practice as set forth in” §§ 703 or 704.3 Section 706(f) authorizes “the Commission [to] bring a civil action against any respondent . . . named in the charge.” And, of course, the purpose of § 706 is to authorize a suit alleging a violation of § 703, which itself makes it unlawful to refuse to hire, discharge, or otherwise discriminate on the basis of a protected characteristic. See § 703(a)(1). There simply is no indication in the statute that Congress had a particular vision as to how violations would be proven — no signals that it favored McDonnell Douglas, Teamster, or some other framework. But it does warrant mentioning here that the Supreme Court has recognized that § 706(f)(1) “imposes no limitation upon the power of the EEOC to file suit in a federal court.” Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 366 (1977).
2. Supreme Court Precedent This Court also agrees with Serrano that the Supreme Court’s General Telephone decision lends support to the EEOC’s position. There, the Court addressed whether § 706 entitles the EEOC to seek class-wide relief without abiding by the processes outlined in Federal Rule of Civil Procedure 23. General Telephone, 446 U.S. at 320. A majority of the Court said that it could. Writing for four other Justices, Justice White explained that “[g]iven the clear purpose of Title VII, the EEOC’s jurisdiction over enforcement, and the remedies available, the
3 Section 704, 42 U.S.C. § 2000e-3, prohibits retaliation and the printing or publication of notices or advertisements indicated a preference for or against members of a class protected by Title VII.
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EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals.” Id. at 324; see also EEOC v. Waffle House, Inc., 534 U.S. 279, 288 (2002) (same). It rejected the availability of backpay — i.e. individualized relief — as a reason to require adherence to Rule 23. General Telephone, 446 U.S. at 324.
It strains credulity to suggest that, in the course of granting the EEOC permission to sidestep Rule 23 in suits brought on behalf of a class and pursuant to § 706, the Court intended to require that the Commission prove each class member’s claim in the manner set forth in McDonnell Douglas. To so require would be entirely inconsistent with the Court’s reminder that “the EEOC is not merely a proxy for the victims of discrimination and that the EEOC’s enforcement suits should not be considered representative actions.” Id. at 326.4 It would also contravene what the Court recognized as a “strong congressional intent to provide ‘make whole’ relief to Title VII claimants,” id. at 332 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 (1975)), as the larger the class of aggrieved individuals, the less likely it would be that the EEOC could go about proving a case in which it has to run each individual through the McDonnell Douglas structure.
The subsequent history of the General Telephone litigation also supports the application of Teamsters to § 706 claims. On remand, the Commission tried its § 706 claim using the Teamsters model. The district court rejected the EEOC’s statistical and anecdotal evidence and found that the Commission had failed to prove a pattern-or-practice of sex discrimination. EEOC v. Gen. Tel. Co. of the Nw., Inc., No. C77-247C, 1985 WL 56622 (W.D. Wash. Oct. 18,
4 This conclusion was not altered by the fact that the “EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay or benefits denied, on behalf of discrimination victims.” General Telephone, 446 U.S. at 326.
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1985). But, after initially affirming, a panel of the Ninth Circuit reversed and remanded for a new trial. EEOC v. Gen. Tel. Co. of Nw., Inc., 885 F.2d 575, 577 (9th Cir. 1989), cert. denied, 498 U.S. 950 (1990).5 Neither the district court nor the court of appeals questioned the Commission’s reliance on the Teamsters framework — just whether it had been satisfied.
3. Decisions From the Courts of Appeals As the Sixth Circuit in Serrano is the only court of appeals to address head on the question presented here, a review of other circuit precedent is far from dispositive. Though the Fifth Circuit has not expressly ruled that Teamsters can be employed by the EEOC in a § 706 suit, it also has not ruled it out, and, on balance, reported decisions from this circuit and the others are more easily reconciled with Serrano than with Defendants’ position. In Scarlett v. Seaboard Coast Line R.R. Co., 676 F.2d 1043 (5th Cir. Unit B 1982), three individual plaintiffs sought to employ the Teamsters framework. In explaining that they could not do so, the court of appeals indicated that “[a]n individual proceeding as an individual under Title VII” must apply McDonnell Douglas, and, to draw a contrast, signaled its unqualified approval of using Teamsters in EEOC actions brought pursuant to § 707 as well as in private Rule 23 class action suits. Id. at 1053. The Fifth Circuit did not address EEOC suits brought pursuant to § 706 and this court is not willing to extrapolate that its holding as to three individuals would apply with equal force to the EEOC. While Bass Pro would like the Court to read Scarlett as cataloguing the entire universe of cases in which the Teamsters framework can be used, this Court prefers a more nuanced reading. The Scarlett court left open the question presented here.
5 Interestingly, Justice White, the author of the Court’s earlier opinion in General Telephone, dissented from denial of certiorari, though without explanation.
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In Celestine v. Petroleos de Venezuella SA, 266 F.3d 343 (5th Cir. 2001), the Fifth Circuit again declined to apply Teamsters in a private, non-class suit. The court noted that “[a] pattern or practice case is not a separate and free-standing cause of action (as the appellants assert), but is really ‘merely another method by which disparate treatment can be shown,’” id. at 355 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1219 (5th Cir. 1995)), thus leaving open the possibility that it can be used in suits other than those brought pursuant to § 707, which does represent a free-standing cause of action. The Celestine court’s next statement — “The typical pattern or practice discrimination case is brought either by the government or as a class action to establish ‘that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers,’” id. (quoting Teamsters, 431 U.S. at 360) — does little more to help Defendants. Read in context, the Fifth Circuit there was likely contemplating suits brought under § 707 when it referred to cases “brought . . . by the government,” but the Court still does not believe that the court of appeals intended to rule out the use of Teamsters in cases such as this one. Indeed, the existence of a “typical” pattern or practice case presupposes the existence of an atypical one, and that is likely what this court now confronts.
The Fifth Circuit has applied the Teamsters model in a class action brought pursuant to Title VII and 42 U.S.C. § 1981. In Boykin v. Georgia-Pac. Corp., 706 F.2d 1384 (5th Cir. 1983), the court observed that “the standards for judging claims of pattern or practice employment discrimination under Title VII and Section 1981 are identical.” Id. at 1393 (citing Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n.4 (5th Cir. Unit B 1982). Then, noting that “[t]he validity of statistical proof as a means of proving a prima facie Title VII case has long met with acceptance in the courts,” id. at 1387 (citations omitted), the court proceeded to analyze
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plaintiffs’ statistical proof and then both certify a class and grant judgment in its favor. Id. at 1394.
Boykin is instructive for two related reasons. First, because § 707 only authorizes suit by the Government, to the extent Boykin was brought as a Title VII suit, it was brought pursuant to § 706. Bass Pro has offered no principled reason why a private class action may employ Teamsters and an EEOC class action may not. Second, insofar as the Boykin class brought suit pursuant to 42 U.S.C. § 1981, that statute contains no textual reference to “pattern-or-practice,” undercutting, at least somewhat, that the Teamsters framework can be used only where the statute under which suit is brought contains the words “pattern-or-practice.” See Payne v. Travenol Labs., Inc., 673 F.2d 798, 818 (5th Cir. 1982) (“Discriminatory treatment claims under § 1981 are measured by the same standards that apply to discriminatory treatment claims under Title VII. . . . Thus, we apply the Teamsters pattern of proof to the § 1981 claims as well as the Title VII claims in this case.” (citations omitted)); Marshall v. Sun Oil Co. (Delaware), 605 F.2d 1331, 1336 n.2 (5th Cir. 1979) (applying Teamsters framework in suit brought pursuant to ADEA).
Other courts of appeals have more clearly acknowledged that the EEOC can use the Teamsters framework in a suit brought pursuant to § 706. See Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 899 (7th Cir. 1999) (“General Telephone Co. . . . holds that, as the plaintiff in a pattern-or-practice suit under § 706(f)(1) . . . the EEOC may seek classwide relief.”); EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1188 (4th Cir. 1981) (applying Teamsters to suit brought pursuant to § 7066); EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444, 1449 n.3 (6th Cir. 1980)
6 Though the Fourth Circuit in its 1981 American National Bank decision discusses the EEOC’s “broad enforcement powers,” it does not make plain that the suit at issue in the case had been filed under § 706. It did do so, however, the previous time that case was up on appeal. See
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(“Although we realize the Supreme Court in Teamsters was discussing the proper procedure for the district court to follow in a section 707 pattern-and-practice suit, it adopted this procedural framework from Franks which dealt with class actions under section 706.”).
The Court would prefer that relevant precedents spoke more particularly to the issue at hand. However, a disinterested review of the case law does provide at least partial validation of the Commission’s position.
4. District Court Cases Recent district court opinions confirm that Serrano was rightly decided. For instance, a district court within this circuit recently adopted Serrano’s reasoning and result. See David v. Signal Int’l, LLC, — F. Supp. 2d. —, No. CIV.A. 08-1220, 2013 WL 8600729 (E.D. La. Dec. 4, 2013). The EEOC there brought claims pursuant to both §§ 706 and 707. Id. at *1. In crafting a discovery and case management plan, defendant argued that the Commission could not use the Teamsters model to prove its § 706 claims. Signal relied for that proposition upon this Court’s previous order that is under reconsideration here. Id. at *2. After reviewing this Court’s reasoning, the Signal court pointed out that this Court had ruled before the Sixth Circuit had decided Serrano — and thus, not only did this Court lack the benefit of Serrano, so too did all the other decisions upon which this Court relied — and it determined that Serrano, as the only court of appeals decision to squarely consider the issue, was “persuasive.” Id. at *3-4. Finally, the Signal court observed that at least one other district court had adopted Serrano’s holding. Id. (citing EEOC v. Pitre, Inc., 908 F. Supp. 2d 1165, 1174 (D.N.M. 2012)). With respect to district court decisions pre-dating Serrano, this Court noted several that support the Commission’s position in the Memorandum and Order currently up for
EEOC v. Am. Nat’l Bank, 574 F.2d 1173, 1175 (4th Cir. 1978) (“[T]he commission brought this action pursuant to 42 U.S.C. s 2000e-5(f)(1).”).
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reconsideration. See, e.g., EEOC v. Scolari Warehouse Markets, Inc., 488 F. Supp. 2d 1117, 1145 (D. Nev. 2007) (“Given the similar nature of such claims and the remedial purpose of Title VII, the Court sees little legal or prudential reason to foreclose the EEOC from bringing a pattern-or-practice claim pursuant to §§ 706 and 707 for the purpose of seeking punitive and compensatory damages.”); Int’l Profit Associates, 2007 WL 844555, at *9 (“The primary distinction between a suit brought under section 706 and a suit brought under section 707 does not pertain to the legal theory under which the EEOC may proceed . . . [T]he EEOC may still rely on the pattern or practice theory when it sues under section 706.”); EEOC v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *1 (N.D. Ill. July 13, 1999) (rejecting the argument that class-wide relief was “inappropriate” in a case brought by the EEOC in which compensatory and punitive damages were sought). And in fact, the district court decisions the Court cited in support of Bass Pro in its earlier Memorandum and Order do not help Defendants much. First, the Court relied upon the Serrano district court. That opinion has since been vacated. Second, the Court relied upon EEOC v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918 (N.D. Iowa 2009). Because CRST again features prominently in Bass Pro’s argument, the Court addresses it at length below, but suffice it to say, the Court does not believe that it has much to offer about the precise question now at issue.
E. Bass Pro is left with four primary arguments against the EEOC’s position. First, Bass Pro contends that application of Teamsters in a § 706 suit would render § 707 superfluous. Second, Defendant urges that the Civil Rights Act of 1991 evinces Congress’s desire to keep § 706 and § 707 utterly distinct. Third, Bass Pro argues that siding with the Commission would likely cause grave Seventh Amendment complications. And finally, Bass Pro asserts that
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granting the EEOC’s motion would amount to breaking ranks with the welter of district courts around the country. Though tactfully made, these arguments can ultimately be rejected in turn.
1. Application of Teamsters Here Would Not Render § 707 Superfluous Bass Pro’s most forceful argument against application of Teamsters in a § 706 suit is that doing so “would render § 707 superfluous,” a result which would “contravene the ‘longstanding canon of statutory construction that terms in a statute should not be considered so as to render any provision of that statute meaningless or superfluous.’” (Doc. No. 174 at 16 (quoting Beck v. Prupis, 529 U.S. 494, 506 (2000).) To be fair, this Court previously embraced a version of this argument. (See Doc. No. 53 at 29 (“The Court finds no support in the case law, or in the statutes themselves, for the EEOC’s proposition that § 707’s pattern or practice language is merely a redundancy.”).) And, this is an argument, addressed supra, that the Serrano court felt compelled to discuss. There, the Court determined that “an important distinction prevents § 707 from becoming superfluous even if Teamsters applies in the § 706 context: § 707 permits the EEOC to initiate suit without first receiving a charge filed by an aggrieved individual, as it must when initiating suit under § 706.” Serrano, 699 F.3d at 896 (citing Int’l Profit Associates, 2007 WL 844555, at *9). This Court agrees with Serrano that the outcome sought here by the EEOC does not in fact render § 707 superfluous, though the Court parts ways, at least to an extent, with the Sixth Circuit’s reasoning. Contrary to what Serrano seems to suggest,7 a § 706 suit need not be initiated by an aggrieved individual’s EEOC charge. Rather, the text of the statute makes plain
7 The EEOC argues that Serrano “merely notes that suit under § 707 does not depend on the filing of any charge at all, whereas suit under § 706 requires a charge by one of the three kinds of filers.” (Doc. No. 180 at 5.) That may well be what the Sixth Circuit meant to say, but because the text of the opinion is susceptible to another reading, the Court addresses that alternate interpretation out of an abundance of caution.
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that a § 706 suit can be initiated by any of three sources: “a person claiming to be aggrieved,”
someone filing on behalf of an aggrieved individual, or a member of the Commission. See
§ 706(b). Thus, to the extent that Serrano suggested that only an individual’s charge can kick
start a § 706 suit, it was mistaken.8 See also EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984)
(“[W]hen a victim of discrimination is reluctant to file a charge himself because of fear of
retaliation, a Commissioner may file a charge on behalf of the victim.”). Shell Oil makes clear
that an individual’s charge and a Commissioner’s charge are treated, in all relevant respects, the
same. See id. at 76.
That said, the Court fully agrees with Serrano that, even if Teamsters can be used in suits
brought pursuant to § 706, there remain important distinctions between § 706 and § 707. For
instance, as the Fifth Circuit has acknowledged, “[u]nder § 707, the EEOC (formerly the
Attorney General) may institute a ‘pattern or practice’ suit anytime that it has ‘reasonable cause’
to believe such a suit necessary.” United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826,
843 (5th Cir. 1975) (citing United States v. Jacksonville Terminal Co., 451 F.2d 418, 438, (5th
Cir. 1971), cert. denied, 406 U.S. 906 (1972)). That is, unlike § 706, “Section 707 does not
8 Further undercutting Serrano is that International Profit Associates, the only case on which it relied for the proposition that § 706 suits must be initiated by an aggrieved individual’s charge, does not appear ultimately to support that position. At first it does. The court notes that “the difference [between §§ 706 and 707] is that under section 707 the EEOC proceeds on its own motion while under section 706 the EEOC acts on a charge filed by aggrieved individuals.” 2007 WL 844555, at *9. That seems to be the passage that inspired Serrano’s conclusion. But later, taking a rather unique view of the statutory text, the court points out that a “charge of a pattern or practice” can be filed by a Commissioner and then explains that “section 707 itself contemplates that when a charge is filed with the EEOC, and the charge (or the EEOC’s subsequent investigation of it) gives the EEOC reasonable cause to believe that the employer is engaging in an unlawful pattern or practice of discrimination, the EEOC will bring the pattern or practice suit on behalf of the group of persons affected pursuant to section 706.” Id. That explanation appears to suggest that a Commissioner can bring a charge pursuant to § 707 and then, upon a reasonable cause determination, the EEOC can bring suit pursuant to § 706. So International Profit Associates does not support the position that a § 706 suit cannot be initiated by a Commissioner’s charge.
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make it mandatory that anyone file a charge against the employer or follow administrative
timetables before the suit may be brought.” Id.; see also id. at 844 (noting that, in amending §
707, Congress “apparently intended that the EEOC have investigative and conciliatory authority”
not that it intended that the EEOC be forced to engage in investigation and conciliation).9
Additionally, § 706 suits, but not § 707 suits, are subject to intervention as of right by parties
aggrieved. See id. at 843. And, whereas § 707(b) allows the EEOC to request a three-judge
district court in cases of “general public importance,” and to appeal a ruling by such a court
directly to the Supreme Court, § 706 contains no comparable provision.
All this is to say that, though application of Teamsters in § 706 suits unmistakably
renders such actions more similar to § 707 actions, doing so does not make the latter so
superfluous that it must be contrary to Congress’s intent. This Court is convinced that the most
sensible interpretation of the structure of Title VII is that the “inclusion of [pattern-or-practice]
language in § 707 simply limited the scope of the EEOC’s authority to act under § 707.” EEOC
v. Pitre, Inc., 908 F. Supp. 2d 1165, 1174 (D.N.M. 2012) (citing Serrano, 699 F.3d at 894). In
other words, “pattern or practice” was included in § 707 in order to curtail the availability of
9 Bass Pro argues in a footnote that this Court has already held that a § 707 action must be predicated upon a charge. (See Doc. No. 179 at 7 n.24 (citing Doc. No. 53 at 33-34).) To the extent the Court so indicated in its earlier Memorandum and Order, it hereby reverses course. The Court does not agree with Bass Pro that the text of the statute requires that any suit filed pursuant to § 707 be preceded by a charge. Section 707(e) states that, following the 1974 transfer of litigation authority from the Attorney General to the EEOC, “the Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission” and that “[a]ll such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title.” In short, § 707(e) dictates what must happen when a pattern-or-practice charge is filed, but does not mandate that such a charge be filed in the first instance. There is language in General Telephone much to the same effect, see 446 U.S. at 329 (explaining that, prior to 1972, the Attorney General could bring pattern-or-practice suits without a charge having been previously filed and suggesting that, following the 1972 amendments, “Congress intended the EEOC to proceed in the same manner”).
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suits brought without charges, tried before three-judge district courts, and appealed directly to the Supreme Court, not to dictate a particular framework of proof that could apply only to suits brought under that section. “Sections 706 and 707 clearly overlap,” id. at 1173, but “legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974).
2. The Civil Rights Act of 1991 Does Not Compel a Particular Result Here These distinctions notwithstanding, Bass Pro comes back to the Civil Rights Act of 1991 and Congress’s decision to permit jury trials and compensatory and punitive damages for suits brought pursuant § 706 but not under § 707. (See Doc. No. 174 at 9; see also 42 U.S.C. § 1981a(a)(1).) Bass Pro argues that “[t]he EEOC would have this Court judicially eliminate that distinction.” (Doc. No. 174 at 9.) That is, Bass Pro contends that “it is impossible to believe that Congress intended in [the Civil Rights Act of 1991] to authorize the EEOC to seek legal damages for victims of a discriminatory pattern or practice but failed to” add anything to that effect to § 1981a. (Id. at 17-18.) This argument misses the mark. Congress did intend to make compensatory and punitive damages available to victims of a discriminatory pattern or practice, it just required that they — or the EEOC — seek them in a § 706 suit. Simple logic bears this out. Wherever there is a pattern or practice of discrimination, it is axiomatic that there are individual victims who have been discriminated against. These are the same individuals that could bring their own § 706 suit or whose rights the EEOC could seek to vindicate in its own § 706 action.10 Consequently, to hold, as Bass Pro urges, that the EEOC cannot “seek legal damages for victims of a
10 Further proof of this fact is that, whether a suit is filed pursuant to § 706 or § 707, it seeks to enforce rights guaranteed by § 703. Put another way, there is technically no such thing as a “pattern or practice violation” or a § 707 violation; there are just patterns or practices of violating § 703.
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discriminatory pattern or practice” would be to place these individuals in a worse position than those who are discriminated against in a series of isolated incidents. That is what it is “impossible to believe” Congress intended. To the contrary, the effect of the 1991 amendments is to require that, even where an individual was discriminated against as a part of a pattern or practice, and even where the EEOC intends to bring suit pursuant to § 707 to address that pattern or practice, a suit that asks for compensatory and/or punitive damages, whether filed by the individual or by the EEOC, must still be brought pursuant to § 706 and thus adhere to its pre-suit prerequisites.
Taking another approach, Bass Pro instead argues that the purpose of the Civil Rights Act of 1991, as evinced by a House Report, dictates that Congress could not have meant to allow Teamster to be used in § 706 suits. Not so. In a supplemental filing invited by the Court, Bass Pro explains that, in passing the 1991 amendments, Congress expanded the availability of legal damages in order to “conform the remedies for intentional gender and religious discrimination to those currently available to victims of intentional race discrimination” through 42 U.S.C. § 1981. H.R. Rep. 102-40(I), at 70 (1991); see also See Doc. No. 179 at 5. Bass Pro further notes that the availability of compensatory and punitive damages was also designed “to encourage citizens to act as private attorneys general to enforce the statute.” H.R. Rep. 102-40(I), at 65. Those two observations, Bass Pro contends, show the Act “was not designed to increase EEOC enforcement powers, much less broaden the EEOC’s authority in pattern or practice cases.” (Doc. No. 179 at 5 (emphasis in original).)
That argument leaves the Court unmoved. First, Bass Pro does not, because it cannot, argue that the 1991 amendments made compensatory and punitive damages available only in suits brought by private individuals and not in those brought by the EEOC, and so it is of little
27

moment that Congress’s primary purpose was something other than placing another arrow in the Commission’s enforcement quiver. If it did, it did.11 Consequently, because no one questions that the Civil Rights Act of 1991 made legal damages obtainable in all § 706 suits, the question is whether Congress intended to simultaneously circumscribe the manner in which the EEOC could prove the facts sufficient to warrant such damages. The Court does not believe that it did. Rather, the Court believes that by the time General Telephone was decided — and certainly by 1991 — it was established that the framework set forth in Franks and Teamsters could be used in cases brought pursuant to § 706. Congress was presumptively aware of the Franks, Teamsters, and General Telephone decisions, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” (quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978)), and nevertheless chose not to clarify that §706 suits had to be proven using McDonnell Douglas when it passed the 1991 amendments, see United States v. O’Brien, 560 U.S. 218, 231 (2010) (“Congress does not enact substantive changes sub silentio.”); see also Waffle House, 534 U.S. at 288 (“Against the backdrop of our decision[] in . . . General Telephone, Congress expanded the remedies available in EEOC enforcement actions in 1991 to include compensatory and punitive damages.”). Bottom line: it is Bass Pro, not the EEOC, that needs the 1991 amendments to have produced meaningful change to the statute in order for it to prevail here, and the Court is unconvinced.
11 It also warrants mentioning that a sentence of the House Report that Bass Pro has not quoted points out that “[m]onetary damages simply raise the cost of an employer’s engaging in intentional discrimination, thereby providing employers with additional incentives to prevent intentional discrimination in the workplace before it happens.” H.R. Rep. 102-40(I), at 65. It would be inconsistent with that rationale to constrain the manner in which the EEOC can prove up its § 706 actions.
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3. The Seventh Amendment Is Not Necessarily Offended By Application of Teamsters to a § 706 Claim
Both parties complain that adopting the rule advocated for by the other will “lead[] to insurmountable Seventh Amendment problems.” (Doc. No. 172 at 5; see also Doc. No. 174 at 11 (“The EEOC’s admissions establish that there is no Constitutionally permissible way to try this case.”).) The Seventh Amendment’s Reexamination Clause dictates that “no fact tried by a jury shall be otherwise re-examined.” U.S. Const. amend. VII. Bass Pro identifies two main (if related) Reexamination Clause issues that it believes would arise in the event that Teamsters is employed for the EEOC’s § 706 claims. First, Stage II of Teamsters will require individualized inquiries regarding punitive damages, which “will necessarily involve overlapping factual issues with an earlier jury’s determination of whether intentional discrimination was Bass Pro’s standard operating procedure, leading to ‘potentially inconsistent results.’” (Doc. No. 174 at 2930 (quoting Doc. No. 41 at 17-18).) Second, “there would be obvious overlapping issues with respect to anecdotal witnesses who testified in Stage I to support a pattern or practice finding and the resolution of those same witnesses’ claims in later proceedings.” (Id. at 30.) That is, the fact-finder at Stage I will have to determine whether the anecdotes of discrimination did in fact occur; Bass Pro argues that “[p]ermitting subsequent juries to revisit those determinations in Stage II individual proceedings would clearly violate the Seventh Amendment, as the second jury may conclude none of the anecdotal witnesses were discriminated against, which would be inconsistent with the earlier pattern or practice liability finding.” (Id.)
In Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), the court of appeals considered the Seventh Amendment in the context of a putative Title VII class action. The Fifth Circuit observed that, by making available compensatory and punitive damages and introducing a right to a jury, the Civil Rights Act of 1991 wrought significant changes with respect to the
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viability of class actions in Title VII suits. Id. at 410. Determining that the district court had not abused its discretion when it refused to certify a Rule 23(b)(3) class action, the court noted that “[i]n order to manage the case, the district court faced the likelihood of bifurcated proceedings before multiple juries. This result in turn increased the probability that successive juries would pass on issues decided by prior ones, introducing potential Seventh Amendment problems and further decreasing the superiority of the class action device.” Id. at 419-20 (citing Castano v. Am. Tobacco Co., 84 F.3d 734, 750-51 (5th Cir. 1996); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1302-03 (7th Cir. 1995)). While this Court need not concern itself with superiority and the other strictures of Rule 23, the tension between ensuring manageability and respecting the Seventh Amendment is no less significant here. The court does not blink those issues, but it also does not believe that either manageability or the Seventh Amendment make it categorically impossible to apply the Teamsters framework to a § 706 action. After all, other courts have concluded that it is possible. See EEOC v. JBS USA, LLC (“JBS Colorado”), No. 10-CV-02103PAB-KLM, 2011 WL 3471080, at *4 (D. Colo. Aug. 8, 2011) (“[M]ultiple juries in bifurcated pattern or practice cases may hear overlapping evidence, so long as they decide distinct factual issues.” (citing Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43, 51 (D.D.C. 2002)); see also id. (noting that a “Phase II jury can be specifically instructed not to re-examine the factual findings of the Phase I jury”). As such, when the Court revisits a case management plan here, it will carefully consider the Seventh Amendment implications of any such proposal. But the Court does not believe it need do so until then.
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4. Additional Cases Cited by Bass Pro Are Unavailing Bass Pro cites an array of district court cases from around the country that it asserts “agree that Teamsters is available to the EEOC under § 707 but not under § 706.” (Doc. No. 174 at 19.) The cases lack the power that Bass Pro ascribes to them. Perhaps most prominently, Bass Pro relies on a series of decisions asserting that, in § 706 cases, “it is axiomatic that the EEOC stands in the shoes of those aggrieved persons in the sense that it must prove all of the elements of their sexual harassment claims to obtain individual relief for them.” EEOC v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 929 (N.D. Iowa 2009); see also EEOC v. O’Reilly Auto. Inc., No. CIV.A. H-08-2429, 2010 WL 5391183, at *4 (S.D. Tex. Dec. 14, 2010) (same), report and recommendation adopted sub nom. EEOC v. O’Reilly Auto. Inc., No. CIV.A. H-08-2429, 2010 WL 5387634 (S.D. Tex. Dec. 16, 2010); EEOC v. IPS Indus., Inc., 899 F. Supp. 2d 507, 517 (N.D. Miss. 2012) (relying on O’Reilly Auto and CRST for the same proposition); Arizona ex rel. Goddard v. GEO Grp., Inc., No. CV 10-1995-PHX-SRB, 2012 WL 8667598, at *7 (D. Ariz. Apr. 17, 2012) (relying on O’Reilly Auto and CRST for the same proposition).12 Bass Pro argues, in effect that, in making such statements, these courts implied that the Teamsters framework would not suffice. There is superficial appeal to Bass Pro’s argument, but after carefully reviewing the cases, this Court concludes that decisions such as these, concerning sexual harassment and hostile work environment claims, are inapposite. A review of McDonnell Douglas’s and Teamster’s origins helps to show why. McDonnell Douglas grappled with the reality that direct evidence of class-based discrimination is often hard to come by. It is seldom the case that an
12 Bass Pro also cites Goddard for the proposition that “different legal frameworks apply to actions under sections 706 and 707,” 2012 WL 8667598, at *8, but because its only support for that proposition was the Serrano district court, this Court finds Goddard unpersuasive.
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employer tells an employee that he is being terminated on account of his race, or that she is being terminated on account of her gender. McDonnell Douglas embraces that fact and offers a burden-shifting scheme through which a plaintiff can prove class-based discrimination using only circumstantial evidence. Franks simply adapted McDonnell Douglas to fit the unique circumstances presented by a § 706 class action in which individual victims have alleged that they were discriminated against as part of a pattern-or-practice of discrimination. Teamsters further clarified that its approach is not an alternative to McDonnell Douglas, but a modification. The Teamsters Court elucidated that “[t]he importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Teamsters, 431 U.S. at 358. The Franks/Teamsters framework likewise conforms to that understanding.
Thus, acknowledging that Teamsters and Franks spring from the same root as McDonnell Douglas, and that the Teamsters framework is designed for cases in which discrimination is proved through circumstantial evidence, it becomes clear why sexual harassment and hostile work environment claims have no relevance here. The Fifth Circuit has explained that there are generally four elements to a hostile work environment claim:
(1) that the employee belongs to a protected class; (2) that the employee was subject to unwelcome . . . harassment; (3) that the harassment was based on [a protected characteristic]; and (4) that the harassment affected a ‘term, condition, or privilege’ of employment.
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EEOC v. Boh Bros. Const. Co., LLC, 731 F.3d 444, 453 (5th Cir. 2013) (en banc) (alteration in
original) (quoting Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 162-63 (5th Cir. 2007)).13
What should by now arrest the reader is that hostile work environment claims are not
proven using McDonnell Douglas or any other burden-shifting scheme. They rely, for the most
part, on direct evidence. As the Supreme Court has explained, the McDonnell Douglas
framework operates “progressively to sharpen the inquiry into the elusive factual question of
intentional discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n.8
(1981). “In contrast . . . ‘the case of . . . harassment that creates an offensive environment does
not present a factual question of intentional discrimination which is at all elusive.’” Jones v.
Flagship Int’l, 793 F.2d 714, 720 n.5 (5th Cir. 1986) (quoting Henson v. City of Dundee, 682
F.2d 897, 905 n.11 (11th Cir. 1982)). As such — and as the Henson court concluded — nothing
like McDonnell Douglas is needed.
The upshot is this: if hostile work environment/harassment cases do not ordinarily rely on
McDonnell Douglas when an individual brings suit (or when the EEOC bring suit on behalf of an
individual), it is no surprise that courts resist the application of Teamsters to cases involving multiple individuals.14 If there is no need for the original — McDonnell Douglas — there is not
13 Depending on the identity of the party allegedly responsible for the harassment, there may be a fifth element not relevant here. See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012), cert. denied, 133 S. Ct. 136 (2012). 14 Not all courts construing hostile work environment claims have resisted the application of Teamsters. In EEOC v. Pitre, Inc., 908 F. Supp. 2d 1165 (D.N.M. 2012), the Commission brought suit alleging hostile working environment pursuant to §§ 706 and 707. Id. at 1169-70. Pitre argued that the EEOC could not apply Teamsters to § 706 claims. The court rejected defendant’s contention that “the EEOC’s authority to bring suit under Title VII is clearly delineated and well-defined,” finding instead that the EEOC has “broad and overlapping authority.” Id. at 1173. The Court reviewed the Serrano decision and adopted its reasoning.
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likely to be any need for its adaptation — Teamsters. And for good reason. The core inquiry is
simply different in harassment and hostile work environment cases. As the International Profit
Associates court explained:
[I]n a race discrimination case it is clear why a pattern or practice finding should have an effect on an employer’s liability to individual claimants. If an employer has an established policy of making employment decisions with racial animus in violation of Title VII, it is likely that any specific employment decision also violates Title VII, and if a particular decision was not discriminatory, the employer is in the best position to show why. . . . However, the impact of a pattern or practice finding in a hostile work environment sexual harassment case is not so clear. In contrast with a race discrimination case — where the focus is on the employer’s basis for making an employment decision that adversely affected the claimant — a sexual harassment case centers on the gravity of the conduct to which a claimant was exposed. . . . The sexual harassment suffered by the claimant must have been severe or pervasive enough (measured both objectively and subjectively) to constructively alter the terms or conditions of the claimant's employment by creating a hostile work environment. . . . Otherwise, no Title VII violation has occurred. . . . Therefore, a finding that an employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual claimant suffered violates Title VII. It is thus unclear what effect a pattern or practice finding should have on an individual claimant's suit for damages.
2007 WL 3120069, at *3; see also CRST, 611 F. Supp. at 934 (“As several district courts have
recognized over the last two decades, the Teamsters pattern or practice model ‘breaks down’
when the unlawful employment practice at issue is sexual harassment based on a hostile work
environment.” (citing EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1071
(C.D. Ill. 1998); Int’l Profit Associates, 2007 WL 3120069, at *3; Jenson v. Eveleth Taconite
Co., 824 F. Supp. 847, 875-76 (D. Minn. 1993))).
The Pitre court found especially relevant the Supreme Court’s “reluctance, ‘absent clear congressional guidance, to subject § 706(f)(1) actions to requirements that might disable the enforcement agency from advancing the public interest in the manner and to the extent contemplated by the statute.’” Id. at 1174 (quoting General Telephone, 446 U.S. at 331)).
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In short, cases like CRST, O’Reilly Auto, IPS Industries, and Goddard have little-to-no
bearing on the issue this Court is presently considering.15
Bass Pro additionally seeks to rely upon JBS Colorado, 2011 WL 3471080, which
undoubtedly helps Defendants’ cause, but not enough to alter the Court’s conclusion. There, the
court held that, for certain of the EEOC’s § 707 claims, it could proceed in the bifurcated fashion
contemplated by Teamsters. Id. at *8. But, for individual claims for compensatory and punitive
damages, the Court explained that the Commission would have to proceed under § 706, and as
such, would have to stick to the McDonnell Douglas framework. Id. This Court believes that
the JBS (Colorado) court was incorrect, for all the reasons set forth above, in drawing this final
conclusion. Indeed, its primary support for the proposition that “the McDonnell Douglas
framework applies to individual claims brought under § 706” was the Serrano district court
opinion, which was later reversed. Id. at *4 (citing Serrano v. Cintas Corp., 711 F. Supp. 2d
782, 794 (E.D. Mich. 2010)).
A related case, EEOC v. JBS USA, LLC (“JBS Nebraska”), No. 8:10CV318, 2012 WL
5906537 (D. Neb. Nov. 26, 2012), upon which Bass Pro also depends, is in fact no help at all.
Contrary to Bass Pro’s assertion, the JBS Nebraska court did not “expressly adopt[]” the
15 EEOC v. Global Horizons, Inc., — F. Supp. 2d. —, No. CV-11-3045-EFS, 2014 WL 2207866 (E.D. Wash. May 28, 2014), is similarly unavailing. Addressing a motion for summary judgment, the Global Horizons court rejected the EEOC’s argument, grounded in Teamsters, that “an individualized assessment as to each Thai Claimant need not be used by the Court,” reasoning that Teamsters was a § 707 pattern-or-practice case and that based on § 706’s “language and purpose,” “an individualized assessment must be used for a hostile-workenvironment § [706] claim brought by the EEOC on behalf of a Claimant.” Id. at *6. Given the court’s repeated inclusion of “hostile work environment” as a qualifier for § 706 claim, and the fact that both cases cited for the aforementioned proposition were hostile work environment/harassment cases, it seems quite likely that the Global Horizon court’s holding was cabined to such claims. For the reasons just set forth, this Court agrees that hostile work environment claims should be treated uniquely. More generally, because the Global Horizons court did not explain its analysis of § 706’s “language and purpose,” this Court has a hard time finding that decision persuasive.
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Colorado court’s reasoning and hold that “‘the Teamsters method of proof is applicable only when Section 707 claims are presented, and not when Section 706 claims are at issue.’” (Doc. No. 174 at 20 (quoting JBS Nebraska, 2012 WL 5906537, at *2).) Rather, the district court there was explaining that the magistrate judge had adopted the JBS Colorado court’s reasoning. JBS Nebraska, 2012 WL 5906537, at *2. The district judge noted that JBS Colorado had relied on the later-vacated Serrano decision and thus appears to have taken no position on whether “the EEOC may pursue claims under the Teamsters pattern-or-practice framework pursuant to its Section 706 authority.” Id. at *3. The question before the JBS Nebraska court was whether private interveners, not proceeding as a Rule 23 class, could employ the Teamsters framework. Id. Based on binding Eighth Circuit precedent, the JBS Nebraska court said that they could not. Id. This court has no reason to cast doubt upon that conclusion, but it also has no reason to treat it as persuasive.16
* * * Upon exhaustive review of Title VII’s statutory scheme and the cases interpreting it, the Court concludes that it was wrong to summarily conclude in its earlier Memorandum and Order that § 706 claims cannot be proven using the Teamsters framework. But all of the foregoing presupposes the existence of a properly filed § 706 claim, for which the EEOC has met all of its pre-suit obligations. Whether it has done so is a close question that the Court next addresses.
16 The court is similarly unmoved by Bass Pro’s citation to a later decision by the JBS Nebraska court in which it said that “[t]he Court has previously found that the EEOC’s pattern-or-practice claims arise under [§ 707], not [§706].” 940 F. Supp. 2d 949, 962-63 (D. Neb. 2013). That statement was made in the context of determining whether the Nebraska Equal Opportunity Commission’s investigation could satisfy the EEOC’s pre-suit obligations; it thus offers no indication one way or the other how a § 706 claim is to be proven.
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III. RENEWED MOTION FOR SUMMARY JUDGMENT This Court has twice already explained the administrative prerequisites with which
Congress has asked the EEOC to comply. (See Doc. Nos. 149, 151.) The “integrated, multistep enforcement procedure” which Congress has devised begins with a charge of discrimination, proceeds to an investigation, leads, potentially, to a determination of reasonable cause, and then requires conciliation. Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 359-60 (1977). These obligations are important: even as the Commission has amassed wider latitude to file civil actions, less formal, administrative processes have remained “the preferred means of achieving the objectives of Title VII.” EEOC v. Agro Distribution, LLC, 555 F.3d 462, 468 (5th Cir. 2009) (internal quotation marks omitted). This Court has acknowledged that, in considering whether the EEOC has fulfilled its conciliation obligation, the ultimate issue is whether the EEOC made a “good-faith attempt at conciliation.” Agro, 555 F.3d at 468. In its March 2014 Memorandum and Order, the Court concluded that, “[w]ith respect to the § 707 claim, the Court believes that, by November 2010, the Commission was justified in declaring conciliation of that claim a failure. And with respect to the § 706 failure-to-hire claim, the Court believes the Commission should have continued to engage Defendant, but that its decision to do the opposite was not made in bad faith.” (Doc. No. 151 at 41.) The Court therefore ordered a stay for additional conciliation.
Bass Pro’s renewed Motion for Summary Judgment seeks dismissal of the § 706 claims for a number of reasons. To the extent it seeks to relitigate the same issues addressed in the last Memorandum and Order, as well as to persuade the Court that the § 706 claims should be dismissed for failure to conciliate during the Court’s recently ordered stay, based on the law
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outlined in its last Order, the Motion is DENIED.17 The remaining issue, also brought to the
fore by Bass Pro’s Renewed Motion for Summary Judgment, is whether the EEOC can bring a §
706 claim on behalf of individuals whose identities were not determined (or will not be
determined) until after the EEOC completed its investigation. The EEOC does not dispute that
some individuals on whose behalf it seeks to bring a § 706 claim still have not been identified,18
and in fact, there is some discrepancy in the record as to whether any individual whose rights the
EEOC seeks to vindicate using § 706 had been specifically identified (i.e. by name) during the
Commission’s investigation.19 Whether the Commission is permitted to proceed in this fashion
is a difficult question.
17 This is so even taking account of Bass Pro’s attempt to clarify the state of the record as to the number of times it had asked for information about specific individual victims. (See Doc. No. 161 at 27.)
18 See, e.g., Doc. No. 164 at 11-12 (explaining in an e-mail to Defendants’ counsel that it still needed more information in order “to further define the class, in terms of scope, identity of class members, and damages”); Doc. No. 164 at 39 (explaining in a letter to Bass Pro that “[s]ince the suit was filed, Bass Pro has opened more stores and hired more employees, implicating the strong likelihood of many additional shortfalls and victims of discrimination”); Doc. No. 177 at 16 (concluding in recent submission to the Court that, “even if every applicant or would-be applicant were identified and their race and national origin were known, in a large class discrimination case such as this where minimal qualifications are required for the position at issue, identification of each individual who would have been hired but for Defendants’ discriminatory practices is extremely difficult and such uncertainties should be resolved against Bass Pro”).
19 Compare Doc. No. 157 at 40-41 (statement to the Court by EEOC attorney that the Commission’s “analysis is not driven by names, it’s not driven by the individual circumstances of those people. And our primary proof did not rely on names or individuals. It’s a statistical hiring case”); id. at 55-56 (statement by same attorney explaining that ascertaining the identities of individual victims is “a very lengthy and expensive process, which is why we don’t do it beforehand”); and Doc. No. 177 at 26 (statement in recent brief that “[t]he investigation of the Commissioner’s Charge was conducted under the principle that a finding that Bass Pro had engaged in class-wide discrimination established liability as to the allegations brought pursuant to § 706 and § 707” (internal citations omitted)), with Doc. No. 120-6 at 5 (letter from Commission to Bass Pro during the course of conciliation referring to “100 identified unsuccessful minority applicants and employees at the Bass Pro store in Bossier City”).
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A. The Court believes that the proper starting point is § 706 and whether it is a vehicle for the Commission to bring claims on behalf of unidentified victims. The statute contemplates that the Commission will use § 706 to respond to charges “filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission,” § 706(b) — language which, for present purposes, is inconclusive. The reference to “a person claiming to be aggrieved” supports Bass Pro’s position that § 706 actions must be brought on behalf of identifiable individuals, but that “person claiming to be aggrieved” is set off from “a member of the Commission” suggests that Commissioner charges perhaps do not need to be filed “on behalf of” identifiable victims. And, when read keeping in mind that all courts seem to agree that victims on whose behalf the Commission seeks to bring a § 706 action need not be identified until (at least) during the investigation, Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985), it becomes clear that § 706(b) says little about the question the Court now considers. Section 706(f), the statutory provision that expressly authorizes civil actions, is of little more use. That section sets forth that “[t]he person or persons aggrieved shall have the right to intervene in a civil action,” but of course, the identities of those “persons aggrieved” need not necessarily be determined during the investigation to breathe life into the Act. In short, the text of § 706 does not help determine whether the Commission can do what it is attempting to do here. General Telephone, at first blush, appears to support the position that even “class” § 706 claims must be brought on behalf of identifiable victims. There, the Court stated that “the EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals.” 446 U.S. at 324. The Court’s reference to “a group of individuals” may support Defendants’ view. So too the Court’s
39

statement that “[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.” The reference to “specific individuals” at whose “behest” the Commission acts certainly seems to indicate that § 706 suits must be brought on behalf of named victims. Id. at 326. And, the Court’s articulation of its holding, again referencing “a group of aggrieved individuals,” id. at 333, could be read as consistent with Bass Pro’s proposed rule.
But digging a little deeper, it is not clear whether General Telephone actually supports Defendants’ view of § 706. In introducing the facts of the case, the Supreme Court stated only that “[t]he complaint alleged discrimination against female employees in General Telephone’s facilities in the States of California, Idaho, Montana, and Oregon.” Id. at 321. That statement does not necessarily help; it can be read either as indicating that the Commission sought relief on behalf of all such women, or on behalf of a group of specific female employees who hailed from the aforementioned states. Sifting through the litigation before it reached the Supreme Court, though, it appears that the Commission there sought relief for a class of victims, some of whom were unquestionably identifiable, see EEOC v. Gen. Tel. Co. of Nw., Inc., No. C77-247M, 1979 WL 148, at *1 (W.D. Wash. Feb. 2, 1979), but others of whom appear to have been unnamed, see id. at *4 (“[T]he determinations indicate that the allegations were not limited to the individual facilities in which the charging parties worked.”); id. at *6 (“I recommend that the Court deny defendant’s Motion to Dismiss the complaint to the extent that it alleges companywide exclusion of women.”); EEOC v. Gen. Tel. Co. of Nw., Inc., 599 F.2d 322, 325 n.1 (9th Cir. 1979) (“After investigation the Commission found reasonable cause to believe that General Telephone and the other defendants were discriminating against female employees. The EEOC identified as presumptively aggrieved by General Telephone’s failure to consider women equally
40

‘all female employees, female applicants for employment and women who would have applied but for the alleged unlawful discrimination.’”). Had the Supreme Court wished to reverse the lower courts insofar as they allowed a § 706 action on behalf of unidentified victims to proceed without utilizing Rule 23, it likely would have said so in far more unambiguous terms.20
Moreover, allowing the Commission to bring suit on behalf of individuals not identified during the investigation is consistent with the notion, seemingly implicit in General Telephone, that Congress wanted the Commission to have all the same rights as private litigants when it brings suit pursuant to § 706. In that vein, if private litigants can bring a Rule 23 class action to vindicate the rights of unnamed class members, see Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), it follows that the EEOC should be able to do likewise, uninhibited by § 706’s investigation requirement.
And, Serrano, which the Court, as stated above, believes had a healthy understanding of § 706 and the Title VII remedial scheme, allowed the Commission to proceed with a § 706 claim on behalf of individuals not identified during the EEOC’s investigation. See 699 F.3d at 890 (“[T]he EEOC filed an amended complaint on August 20, 2009, which limited its allegations to ‘a class of women in the State of Michigan’ as opposed to females nationwide.”); id. at 904 (“[I]t is clear that the EEOC provided notice to Cintas that it was investigating class-wide instances of discrimination. . . . [T]he [proposed conciliation] agreement indicated that the EEOC sought class-based remedies by requesting relief for ‘other similarly situated qualified female applicants who sought employment.’”). A collection of other courts from around the country have done
20 The Court believes that saying so would have been within the bounds of the question presented, which the Supreme Court phrased as “whether the Equal Employment Opportunity Commission (EEOC) may seek classwide relief under § 706(f)(1) of Title VII of the Civil Rights Act of 1964 (Title VII) without being certified as the class representative under Rule 23 of the Federal Rules of Civil Procedure.” General Telephone, 446 U.S. at 320.
41

likewise. EEOC v. Harvey L. Walner & Associates, 91 F.3d 963, 968 (7th Cir. 1996) (indicating that, in suits brought pursuant to § 706, the EEOC may allege in its Complaint “unlawful conduct it has uncovered during the course of its investigation” even where that means “‘challeng[ing] discrimination affecting unidentified members of a known class” (citing EEOC v. United Parcel Serv., 860 F.2d 372, 374 (10th Cir. 1988)); EEOC v. Bruno’s Rest., 13 F.3d 285, 289 (9th Cir. 1993) (finding, in a § 706 suit brought on behalf of a named individual “as well as other employees” that “[t]he EEOC conducted the statutorily mandated investigation” and that “‘in a class action suit, [t]he EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant’” (quoting EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989));21 EEOC v. U.S. Steel Corp., No. CIV.A. 10-1284, 2012 WL 3017869, at *10 (W.D. Pa. July 23, 2012) (deeming it proper for EEOC to bring suit on behalf of individuals not yet identified when complaint was filed); EEOC v. PBM Graphics Inc., 877 F. Supp. 2d 334, 361 (M.D.N.C. 2012) (“To the extent PBM complains that particular class members were not identified during the conciliation process, the EEOC is under no obligation to make such a disclosure.”).
Some courts have drawn an important distinction “between the significance of prelitigation disclosure of the alleged unlawful conduct and pre-litigation disclosure of the specific identities and number of aggrieved persons.” EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., 918 F. Supp. 2d 1171, 1179 (D. Colo. 2013). In Original Honeybaked Ham, the court explained that “[d]isclosure of the alleged unlawful conduct is essential. Only with knowledge of the alleged unlawful conduct can the employer meaningfully engage in pre-
21 No published opinion, by the Ninth Circuit or the lower court, makes perfectly clear whether the “other employees” at issue in Bruno’s Restaurant had been specifically named during the investigation, but the Court believes that the use of “potential” before “claimants” indicates that some had not.
42

litigation conciliation, by determining its exposure and what changes in procedures or policies may be warranted.” Id. But, it explained, “[t]he greater the specificity in describing the alleged unlawful conduct, the less important it becomes to specifically identify aggrieved persons.” Id. at 1180. To be sure, the discussion of what must be disclosed during conciliation is not a perfect analog for what must become known to the Commission during its investigation, but it does lend some support to the EEOC’s position that it can conduct an adequate investigation even where it does not know the specific identities of all those who were aggrieved. The Commission’s investigation of “unlawful conduct” can satisfy its pre-suit obligations in such cases.
B. This is not to say that there is no support for Bass Pro’s position. Far from it. First, starting with the text and structure of Title VII, § 706(b)’s right of intervention is not as meaningful if the identities of victims need not be ascertained until stage II of Teamsters, which is likely when the Commission would prefer to identify victims. Of course, the individuals would still be able to intervene at the stage of litigation when their individual damages are to be determined, but they would have no opportunity to offer any input earlier in litigation, which is presumably their prerequisite. Second, Bass Pro is correct that courts “will not review the sufficiency of the EEOC’s pre-suit investigation” but that “‘[c]ourts will review whether an investigation occurred.’” EEOC v. JBS USA, LLC, 940 F. Supp. 2d 949, 964 (D. Neb. 2013) (quoting EEOC v. Hibbing Taconite Co., 266 F.R.D. 260, 272 (D. Minn. 2009)); see also EEOC v. Grane Healthcare Co., No. CIV.A. 3:10-250, 2013 WL 1102880, at *5 (W.D. Pa. Mar. 15, 2013); EEOC v. California Psychiatric Transitions, Inc., 725 F. Supp. 2d 1100, 1113 (E.D. Cal. 2010). This principle was reaffirmed most recently in EEOC v. Sterling Jewelers, Inc., — F. Supp. 2d. —, No. 08-CV-
43

00706-A, 2014 WL 916450, at *4 (W.D.N.Y. Mar. 10, 2014). The Sterling Jewelers court determined that courts “may also examine the scope of that investigation, for while ‘[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable,’” id. (quoting General Telephone, 446 U.S. at 331), the Commission “‘must discover such individuals and wrongdoing during the course of its investigation.’” Id. (quoting CRST, 679 F.3d at 674). Because it found that the EEOC had not investigated nationwide discrimination, the court determined that “the EEOC’s claim of a nationwide pattern or practice of employment discrimination by Sterling be dismissed, with prejudice.” Id. at *9. The Sterling Jewelers court acknowledged that, even if the EEOC could investigate class charges, the investigation of a regional class could not substitute for the investigation of a nationwide class. Id. at *6. In another recent decision, the Fourth Circuit, affirmed the district court’s decision to award attorney’s fees to defendant in part because “the EEOC had failed to identify potential victims in its target class before filing its complaint.” EEOC v. Propak Logistics, Inc., 746 F.3d 145, 153 (4th Cir. 2014).22
These decisions help Bass Pro in at least two ways. First, needless to say, Bass Pro’s argument that the § 706 claims should be thrown out for failure to investigate relies on the reviewability of the Commission’s investigation. These cases establish as much. Second, they confirm that there must be congruence between the scope of the Commission’s investigation and
22 The Commission rightfully points out that what appears to have really driven the Propak court is the fact that, not only had the Commission not yet identified the alleged victims, it knew that it would not be able to, and combined with defendant’s decision to close certain plants, when the EEOC filed suit, “it was abundantly clear that a lawsuit would be moot and thus it was unreasonable to have filed it.” Propak Logistics, 746 F.3d at 157 (internal quotation marks omitted).
44

its lawsuit. To be sure, though, neither of these points makes pellucid that the investigation must turn up the names of the § 706 claimants.23
Third, a growing number of district courts — many of which the Court discussed in its
last Memorandum and Order — have come fairly close to making explicit that individuals on
whose behalf the EEOC intends to bring § 706 suits must have the merits of their individual
claims investigated. See, e.g., EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR, 2009
WL 2524402, at *16 (N.D. Iowa Aug. 13, 2009) (“[T]he case at bar is one of those exceptionally
rare § 706 cases in which the record shows that the EEOC did not conduct any investigation of
the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before
filing the Complaint — let alone issue a reasonable cause determination as to those allegations or
conciliate them. The record shows that the EEOC wholly abandoned its statutory duties as to the remaining 67 allegedly aggrieved persons in this case.”);24 EEOC v. Bloomberg L.P., 967 F.
Supp. 2d 802, 814 (S.D.N.Y. 2013) (relying in large part on CRST and explaining that “[t]he
Court is not aware of any binding legal authority, and the EEOC has provided none, that allows
the EEOC to do what it is attempting to do here — namely level broad accusations of class-wide
discrimination to present Bloomberg with a moving target of prospective plaintiffs and, after
23 And, indeed, the distinction offered by Original Honeybaked Ham between an investigation of pre-litigation conduct and an investigation of the victims of that conduct undercuts the idea that, where specific victims are not identified, there is no congruence between investigation and lawsuit. For instance, the Sterling Jewelers decision can be read as consistent with that principle and indicative only of the fact that, where the EEOC wishes to file suit alleging a nationwide pattern of unlawful conduct, it must investigate the defendant’s conduct across the nation. It has relatively little to say about how exacting that investigation must be. 24 In its last Memorandum and Order, this Court distinguished CRST on the grounds that “the CRST district court determined that the EEOC had not even identified class members for its own purposes before litigation began, and based its holding just as much, if not more, on a failure to investigate as on a failure to conciliate,” whereas in this case, the EEOC simply “refused to identify those claimants it said it had discovered.” (Doc. No. 151 at 33 (citations omitted).) It now appears that the Court may have been working off a false premise.
45

unsuccessfully pursuing pattern-or-practice claims, substitute its own investigation with the fruits of discovery to identify which members of the class, none of whom were discussed specifically during conciliation, might have legitimate individual claims under Section 706”). It is no surprise that Bass Pro seeks to hang its hat on this line of cases.
* * * In consideration of these competing concerns — and this is a very close question — the Court is not persuaded to dismiss the § 706 claims for failure to investigate, because the Court is not fully persuaded that the Commission is barred from bringing § 706 claims on behalf of unidentified victims. Defendants’ Motion is thus DENIED. IV. MOTION FOR SUMMARY JUDGMENT ON RETALIATION CLAIMS The Court did not resolve in its last Memorandum and Order Defendants’ Motion for Summary Judgment on the Commission’s § 706 retaliation claims. (Doc. No. 151 at 39.) As the Court posited in that Memorandum and Order, and as was discussed briefly the last time the parties were in Court, because the suit was initiated by a Commissioner’s charge, the fate of the individual charges is immaterial. Summary Judgment on those claims is therefore DENIED. V. CONCLUSION The Motion for Reconsideration and Renewed Motion for Summary Judgment were hotly contested; the questions presented by both were close. Bass Pro has ably presented its disagreements with the conclusions that the Court reaches in this Memorandum and Order, and the Court readily acknowledges that there is ample support for Defendants’ positions. As such, while the Court believes discovery should proceed on the § 707 claims, the Court would look favorably upon a motion for certification of an interlocutory appeal as to the § 706 claims, both with respect to how the EEOC may attempt to prove them and as to whether the individuals on
46

whose behalf the claims are brought must be identified (by name) during the course of the EEOC’s investigation. These are important questions that will not only shape, if not resolve, the case at hand, but also help determine the Commission’s actions in future cases.
IT IS SO ORDERED. SIGNED at Houston, Texas on this the 30th day of July, 2014.
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
47

 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

Plaintiff,

§

VS.

§

§

BASS PRO OUTDOOR WORLD, LLC, et §

al.,

§

§

Defendants.

§

CIVIL ACTION NO. 4:11-CV-3425

MEMORANDUM AND ORDER

Defendants in this case have filed a Motion to Certify Interlocutory Appeal Under 28

U.S.C. § 1292(b). (Doc. No. 185.) In its July 30, 2014 order (Doc. No. 183), the Court granted

the Equal Employment Opportunity Commission’s Motion for Application of the Franks /

Teamsters Model to the Section 706 Class Hiring Claim (Doc. No. 172) and denied Bass Pro’s

Renewed Motion for Summary Judgment (Doc. No. 160). Recognizing that both motions

presented close questions of law, the Court also invited Defendants — who lost on both issues —

to seek interlocutory appeal. The instant motion followed. After considering the parties’ written

submissions, the arguments presented at the October 27 hearing, and the applicable law, the

Court concludes that interlocutory appeal is appropriate. Defendants’ motion is therefore

GRANTED as to both questions.

I. BACKGROUND

More detailed accounts of the relevant background to this procedurally complex

employment discrimination case were set forth in the Court’s most recent orders. (Doc. Nos. 151,

184.) To re-summarize, the Equal Employment Opportunity Commission (EEOC) issued a

Commissioner’s Charge on February 20, 2007, alleging that Bass Pro discriminated against

1

African American applicants and employees on the basis of their race in retail stores and facilities nationwide. (Doc. No. 119-4 at 2.) EEOC investigated the charge from 2007 to 2010, including three meetings with Bass Pro and the production of over 230,000 pages of documents. (Doc. No. 119-6 at 3).
The Commission issued its Letter of Determination on April 29, 2010, indicating that the EEOC believed that the evidence supported the allegations made in the initial Charge and a later Amended Charge. (Doc. No. 119-11 at 2). The EEOC contacted Bass Pro on May 5, 2010 to begin the conciliation process. (Doc. No. 119-14.) During the months of conciliation, Bass Pro repeatedly asked for more and more information about the Commission’s allegations, and the Commission consistently refused to provide all that the employer was seeking.
After the EEOC declared that conciliation had failed, this suit was filed on September 21, 2011, pursuant to the EEOC’s authority to bring discrimination claims under § 706 and § 707 of Title VII. (Doc. No. 1). The Commission filed an Amended Complaint in January 2012, adding two related legal entities as defendants. (Doc. No. 23.) Defendants moved to dismiss, and this Court granted in part and denied in part the Motion to Dismiss. (Doc. No. 53 at 9.) It is that order that is the subject of the Commission’s Motion to Reconsider, Doc. No. 172, discussed in more detail below.
After two more amendments to the complaint and another motion to dismiss, both parties filed motions for summary judgment. Arguing that the EEOC had abdicated its responsibility to conciliate in good faith, Defendants asked the Court to dismiss the lawsuit (Doc. No. 119). Contending that the sufficiency of its endeavors to conciliate is not subject to judicial review, the EEOC essentially asked that the Court not consider Bass Pro’s Motion. (Doc. No. 137.) The Court ultimately denied both requests, though it ordered a thirty-day stay for additional
2

conciliation of the EEOC’s § 706 claims. See EEOC v. Bass Pro Outdoor World, LLC, No. 4:11CV-3425, 2013 WL 5515345 (S.D. Tex. Oct. 2, 2013) (Doc. No. 149); EEOC v. Bass Pro Outdoor World, LLC, — F. Supp. 2d. —, No. 4:11-CV-3425, 2014 WL 838477 (S.D. Tex. Mar. 4, 2014) (Doc. No. 151).
Further attempts at conciliation were unsuccessful, prompting Defendants to file a Renewed Motion for Summary Judgment (Doc. No. 160). The Commission, for its part, filed a Fourth Amended Complaint and filed the instant Motion for Application of the Franks / Teamsters Model to the Section 706 Class Hiring Claim (Doc. No. 172) (the “Motion for Reconsideration”). The Commission’s motion asked the Court to reconsider its earlier holding that the EEOC could not pursue its § 706 claims using the model of proof described in Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977).
In a July 30, 2014, order, this Court denied Defendants’ Renewed Motion for Summary Judgment and granted the Commission’s Motion for Reconsideration. However, recognizing that the questions were “close,” the Court indicated that it would look favorably upon a motion for interlocutory appeal on both orders. Bass Pro then filed the instant Motion for Interlocutory Appeal. (Doc. No. 183). II. LEGAL STANDARD
As a general rule, “a party is entitled to a single appeal, to be deferred until final judgment has been entered.” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994); see also Henry v. Lake Charles American Press, LLC, 566 F.3d 164, 171 (5th Cir. 2009) (noting that “as a general rule, parties must litigate all issues in the trial court before appealing any one issue”). However, 28 U.S.C. § 1292(b) allows a district court judge to certify an order for interlocutory appeal if three conditions are met: the order 1) “involves a controlling question
3

of law” 2) “as to which there is substantial ground for difference of opinion,” and 3) “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” A district court judge certifying an order for interlocutory appeal must articulate, in writing, why the order satisfies each of these criteria. See Linton v. Shell Oil Co., 563 F.3d 556 (5th Cir. 2009). III. ANALYSIS
A. Motion for Reconsideration Bass Pro first asks for interlocutory appeal of this Court’s order that the EEOC may
proceed on its § 706 claims using the Teamsters model of representative proof. As outlined in greater detail in the order, the Teamsters model is typically used in both § 706 claims brought in class actions certified under Rule 23, see Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (1976), and in pattern-or-practice claims brought by the EEOC under § 707, see Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). Initially, this Court ruled that EEOC could not use Teamsters framework to prove § 706 claims on behalf of individuals not certified as part of a class action. See E.E.O.C. v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d 499, 520 (S.D. Tex. 2012). The EEOC’s motion for reconsideration asked this Court to revisit this decision. And in its July 30 order, the Court changed its position and agreed with the EEOC that the Teamsters model was appropriate in a case in which the EEOC was litigating § 706 claims on behalf of a large number of individual employees. See E.E.O.C. v. Bass Pro Outdoor World, LLC, — F. Supp. 2d —, No. 4:11-cv-3425, 2014 WL 3795579, at *20 (S.D. Tex. July 30, 2014).
At the time of the July 30 order, as now, the Court believed that the question was a close one. While the only court of appeals to rule on the issue is in accord with the Court’s ruling, see Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012), the decision implicates important
4

concerns about the Seventh Amendment and the interplay of various sections of Title VII. Reacting to those concerns, at least one district court outside the Sixth Circuit has ruled the other way in an analogous case. See E.E.O.C. v. JBS USA, LLC, No. 10-cv-02103-PAB-KLM, 2011 WL 3471080 (D. Colo. Aug. 8, 2011). The Fifth Circuit has yet to address the legal question answered in this order.1 And in general, opportunities for courts of appeals to address this question are rare. Settlement pressures typically end large-scale employment discrimination cases before the entry of an appealable final judgment. Whether there is a substantial grounds for a difference of opinion depends on the context of the specific question and the specific case. 16 Wright, Miller & Cooper, Fed. Practice & Proc. Juris. 3d § 3930. Under all of the circumstances here, including the scarcity of opportunities for courts of appeals to consider this question, this Court believes that there is “substantial ground for difference of opinion” regarding its order on the Motion for Reconsideration.
Furthermore, the order raises a “controlling question of law” suitable for interlocutory appeal. It is clearly a pure question of law: deciding whether the EEOC may use a Teamsters model of proof will not require the appellate court to review the factual record or to make factual findings. It is also sufficiently important to the case to be “controlling.” A controlling question of law need not necessarily terminate an action. Klinghoffer v. S.N.C. Achille Lauro Ed Altri– Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990). In practice, courts have found questions to be controlling if they impact “the future course of the litigation.” See Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991). In that respect, this requirement shades into the final requirement that the appeal “materially advance the
1 However, another district court within the circuit has considered the question and reached the same result as this court. See David v. Signal Int’l, LLC, — F. Supp. 2d. —, No. Civ. A. 081220, 2013 WL 8600729 (E.D. La. Dec. 4, 2013)
5

ultimate termination of the litigation.” Here, an immediate appeal would certainly advance the termination of the litigation if
this Court’s original ruling is reversed on appeal. Without an interlocutory appeal, if the Fifth Circuit holds after trial that this Court was incorrect in its ruling, the parties will be forced to go back to square one and retry each individual case in accordance with the McDonnell Douglas manner of proof. See Mot. for Interlocutory App. Tr. 36, Oct. 27, 2014. By allowing an appeal on the model of proof question now, the Fifth Circuit can spare the parties the possibility of a second round of trials on the question of Bass Pro’s liability for individual acts of discrimination, many more years after the employment decisions at issue actually transpired.
The EEOC is confident that a second round of individual trials is unlikely because, since 1991, pattern-or-practice cases typically settle after motions practice. See Mot. for Interlocutory App. Tr. 37. That very settlement pressure is likely one of the reasons that only one court of appeals has been confronted with this exact question. But the Court will not refuse to certify an appeal simply because the agency believes the present favorable ruling will bring Bass Pro to the negotiating table. The Fifth Circuit has recognized that decisions allowing plaintiffs to use representative proof to obtain relief on behalf of large numbers of individuals can bring about settlement pressures amounting to “judicial blackmail.” Castano v. American Tobacco Company, 84 F.3d 734, 746 (5th Cir. 1996). While representative proof is appropriate in some situations — and this Court believes it is appropriate here — relying on the possibility of settlement to deny access to an interlocutory appeal would be deeply unfair to Defendants.
Because the question is close and because an immediate appeal will give the Court and the parties needed certainty as to how the case should proceed to trial, the Court will grant Defendants’ motion for interlocutory appeal of the Motion to Reconsider order.
6

B. Motion for Partial Summary Judgment Bass Pro next asks for interlocutory appeal of this Court’s denial of summary judgment to
Defendants on the EEOC’s § 706 claims. A prerequisite to filing a § 706 claim is that EEOC must conduct an “investigation” and “conciliation” of the claims. See 42 U.S.C. § 2000e-5(b) (§ 706(b) of Title VII). In its motion for partial summary judgment, Bass Pro contended that no investigation occurred because the EEOC never identified the names of the alleged victims of discrimination and did not provide Bass Pro with enough information to allow the company to identify those individuals. In the July 30 order, the Court held that the EEOC met the statutory requirements of investigation even if it never identified any alleged victims by name during the investigation phase, and denied summary judgment to Bass Pro.
The Court’s July 30 ruling assumed, based on the evidence in the record at that time, that no individual names were identified by the EEOC during the investigation and that no individual names were disclosed to Bass Pro. At a hearing on this motion for interlocutory appeal, an EEOC lawyer stated that the EEOC during its pre-suit investigation and conciliation did have the names of approximately 100 alleged victims of discrimination. Mot. for Interlocutory App. Tr. 46:1147:4 (stating that “the EEOC had specific people … who were not identified to Bass Pro by name but whose name [sic] the EEOC did know”). This directly contradicts prior statements by another EEOC lawyer at an earlier hearing. See Nov. 19, 2013 Hr’g Tr. 40:13-19, 56:16-18 (stating that “What we identified was a thousand shortfalls… They’re not specific people … So it’s not that we were trying to hid information from the defendants. We don’t have [the names of individuals] either.”).
This Court believes that the summary judgment declaration submitted by EEOC’s own employee supports the earlier lawyer’s statement that no individuals were identified or
7

investigated in the investigation period. Deputy District Director Martin Ebel stated in his declaration that EEOC investigated “the existence of class-wide discrimination” for the purposes of § 706 and § 707 claims, and the investigation focused on “the factual issue of whether hiring discrimination was occurring on a class-wide basis.” Ebel Decl., Doc. 177-1 at 2 (emphasis added). Mr. Ebel nowhere testifies that the EEOC investigated any individuals who were allegedly affected by this policy.2 Therefore, this Court believes there is no factual dispute to impede an interlocutory appeal on the question of whether the EEOC had to identify by name one or more aggrieved individuals in order to satisfy the statutory requirements of investigation and conciliation.
The July 30 summary judgment order was inarguably “controlling”: if the Court had held otherwise, the Commission’s failure to investigate or conciliate the claims would be the basis for summary judgment for Bass Pro on the § 706 claims. An interlocutory appeal would also materially advance the termination of the litigation. If this Court’s order is reversed on appeal, the § 706 claims will be dismissed. Accordingly, there will be no need for expensive and timeconsuming discovery and trial on individuals’ compensatory and punitive damages, which are only available for § 706 claims, not § 707 claims.
There is also a “substantial ground for disagreement” on this issue. District courts have divided on whether to allow the EEOC to proceed on § 706 claims on behalf of a large and dispersed group when no individual applicants or employees have been specifically identified during the investigation. Compare EEOC v. PMT Corp., Civ. No. 14-599 DSD/TNL, — F. Supp. 2d —, 2014 WL 4231401, at *3 (D. Minn. Aug. 27, 2014) with E.E.O.C. v. Bloomberg L.P., 967
2 The declaration of Stephen Damiani, the EEOC investigator, adds nothing to the record of what the EEOC knew in the investigation phase, as it only addresses what happened in the conciliation phase. See Damiani Decl., Doc. 136-3.
8

F. Supp. 2d 802, 814 (S.D.N.Y. 2013) and EEOC v. CRST Van Expedited, Inc., No. 07-CV-95LRR, 2009 WL 2524402, at *16 (N.D. Iowa Aug. 13, 2009), aff’d E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012). No court of appeals has yet squarely confronted the question, making it a “novel … question of first impression” ripe for interlocutory appeal. See Tesco Corp. v. Weatherford Intern., Inc., 722 F. Supp. 2d 755, 767 (S.D. Tex. 2010). Again, the Court is mindful that the settlement pressures involved in large-scale employment discrimination cases make it relatively unlikely that this question will reach a court of appeals absent an interlocutory appeal.
In an effort to persuade the Court that there is no ground for disagreement on this issue, the EEOC filed a chart describing 50 cases that it claims supports the Court’s original ruling that the Commission need not identify some or all individual victims during the investigation phase. (Doc. No. 193.) Many of the cases identified by the EEOC as supporting its position predate the Civil Rights Act of 1991, which added compensatory and punitive damages to the remedies already available under § 706. Other cases were brought under the Age Discrimination in Employment Act (ADEA), which does not provide for legal remedies. Bass Pro contends that the addition of compensatory and punitive damages makes the identities of individual victims of the alleged discrimination more important. Most significantly, the magnitude of Defendants’ potential liability now turns on individuals’ emotional distress and other compensable harms. Even though the EEOC need not identify all potential § 706 victims in the initial stages of the case, Bass Pro argues that identifying at least some potential victims — or defining the class narrowly enough that the employer could identify specific individuals in the class — is necessary to put the employer on notice of its potential liability. While the Court ultimately concludes that individualized investigations are not necessary for the EEOC to satisfy its statutory obligation
9

under § 706, it is persuaded that it is appropriate to discount the pre-1991 and ADEA cases cited by the Commission for purposes of determining whether there is “substantial ground for disagreement.”
As all of the statutory criteria are met and an interlocutory appeal will avoid costly discovery and potentially unnecessary trial proceedings, the Court will also allow interlocutory appeal of the summary judgment order. Defendants’ Motion to Certify Interlocutory Appeal is GRANTED.
IT IS SO ORDERED. SIGNED at Houston, Texas on the 17th day of November, 2014.
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
10

 </s> Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 1 of 31
United States District Court Southern District of Texas
ENTERED
July 25, 2017
David J. Bradley, Clerk

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plain tift',
v.
BASS PRO OUTDOOR WORLD, LLC aad TRACKER MARINE RETAIL, LLC
Defendants.

§ § § § § § CIVIL ACTION NO. 4:11-cv-3425 § § § § §

CQNSENT DECREE 1. The parties to this Consent Decree ("Decree") are Plaintiff Equal Employment Opportunity Commission ("Commission" or "Plaintiff" or "EEOC"), an agency of the United States Government, and Defendants Bass Pro Outdoor World, LLC and Tracker Marine Retail, LLC (collectively, Defendants or "Bass Pro" or "Company''). This Decree is the product of collaboration between the EEOC and Bass Pro to strengthen Bass Pro's diversity efforts and reach a negotiated resolution ofoutstanding claims. 2. On September 21, 2011, the EEOC filed a lawsuit against Defendant Bass Pro Outdoor World, LLC. Tracker Marine Retail, LLC, was named as a defendant in the Fourth Amended Complaint, which is the operative petition. The Fourth Amended Complaint, filed on July 13, 2014, alleges that Defendants (collectively, "Defendants" or "Bass Pro'') discriminated in hiring at its retail stores against a class of African-Americans and Hispanics because of their race and/or national origin, in violation ofSection 703(a)(I) ofTitle VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000·2(a)(l ), alleges that Defendants failed to preserve certain records, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), and alleges certain retaliatory conduct in violation ofSection 704 ofTitle VII, 42 U.S.C. § 2000e-3(a).
1

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 2 of 31
3. Bass Pro has denied the EEOC's allegations in their entirety and maintains that it did not engage in any unlawful action based on race or national origin, denies that it failed to preserve any records required under Title VII, and otherwise denies engaging in any retaliatory conduct.
4. As part of this compromise of disputed claims, Plaintiff EEOC also has filed a motion to amend the Fourth Amended Complaint, by a separate motion filed concurrently with this Decree.
5. This Decree is a compromise of disputed claims, entered into to avoid further disruption, costs, delay, and expense of protracted litigation, and any payments or undertakings made hereunder are not and should not be construed as an admission of liability on the part of Defendants, which is denied.
6. Prior to approving and entering into this Decree, the Court has made no findings of fact or conclusions of law as to the merits of any of the matters at issue in this case or any defenses.
7. The EEOC will not use the Charge relating to this lawsuit as the jurisdictional basis for filing any other lawsuit or lawsuits against Bass Pro, and this Decree is intended to be the·complete resolution ofsuch Charge and ofthis lawsuit.
8. This Decree fully and fmally resolves any and all issues and claims arising out of the Complaint filed by the EEOC in this action.
DEFJNITIQNS
9. Good Faith Efforts: Oood Faith Efforts means reasonably and in good faith implementing and adequately funding a plan reasonably designed to comply with all of the specific objectives ofthis Decree.
10. Covered Store: Covered Store means a retail store operated and fully owned by 2

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Bass Pro at any time prior to the execution of this Decree, except that it does not apply to any Cabela's store in the event that Bass Pro's acquisition of Cabela's Incorporated is completed prior to the Effective Date ofthis Decree.
11. Eligible Claimauts: For purposes of this Decree, an Eligible Claimant (1) is Black or African-American (hereinafter collectively referred to as "Black"), or Hispanic (which may include Individuals who identify as more than one race, one of which is Black or Hispanic); (2) applied (or a position with Bass Pro at one of its retail stores, and either a) was named in EEOC's Fourth Amended Complaint as a potential hiring claimant, and/or b) applied between February 20, 2007 and April 30, 2010 and was not hired by Bass Pro within one (1) year; (3) submitted a timely Claim Fonn as required below; and (4) is viewed as an eligible claimant by EEOC; and (S) complied with all requirements, as set forth in this Decree, to be eligible for receipt of a settlement payment from the settlement fund. An Eligible Claimant also shall include select and known Blacks or Hispanics (which may include individuals who identify as more than one race, as referred above) who applied with Defendants prior to February 20, 2007 and after April 30, 201 0, a list of whom the EEOC identifies to Defendants within 1S days of entry ofthis Decree. Items (3), (4) and (S) above shall apply to this group. An Eligible Claimant also shall be a person who tiled a retaliation claim against Defendants in the relevant time frame and whose claim was considered as part of this lawsuit, and EEOC identifies to Defendants within IS days of the entry of this Decree. Items (3), (4) and (S) above also shall apply to this group. Finally, an Eligible Claimant shall include individuals with pending charges of discrimination outside the relevant time frame covering similar types of claims, who Defendant has identified to EEOC within thirty (30) days of entry of the Decree, and items (3),(4) and (5) above also shall apply to this group
12. Applicant: refers to a Black or Hispanic individual as to whom the following two 3

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criteria are satisfied: (i) the individual submitted a completed written or electronic application for employment at one of Bass Pro's retail stores during the relevant time period for "Eligible Claimants;" and (ii) the individual's application indicates the individual possesses the necessary qualifications for the position(s) applied for. Applicant shall also refer to persons identified as having applied at the Covered Stores during the relevant time ftame by the Claims Administrator as part of its duties but for whom no physical application exists.
FINDINGS 13. Having carefully examined the terms and provisions of this Decree, and based on the pleadings, record, and stipulations ofthe parties, the Court finds the following:
a. This Court has jurisdiction of the subject matter of this action and of the parties.
b. The terms of this Decree arc adequate, fair, reasonable, equitable, and just. The rights of EEOC, Bass Pro, the potential Eligible Claimants, and the public interest are adequately protected by this Decree.
c. This Decree conforms to the Federal Rules of Civil Procedure and Title VII and is not in derogation of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII and will be in the best interest ofthe parties, the claimants, and the public.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT: SCOP£ OF THE DECREE ·
14. The terms of this Consent Decree shall be binding upon the present and future directors, officers, managers, agents, successors and assigns of Bass Pro. The terms of this Decree apply to all retail stores operated and fully owned by Bass Pro as of the approval of this
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Decree, except that it shall exclude any stores previously operated by Cabela's Incorporated. 15. This Decree will apply to all of Bass Pro's retail stores located within the United
States. 16. This Decree wiJI become effective on the date of its preliminary approval by the
Court (hereafter "the Effective Date") and will remain in effect until its expiration date, which will be forty-two months after the Effective Date.
17. Bass Pro, their officers, agents, employees, successors, assigns and all persons acting in concert or participation with them are hereby enjoined from engaging in any employment practice in violation ofTitle VII that discriminates against applicants on the basis of race (i.e., Black) or national origin (I.e., Hispanic). This Paragraph docs not prohibit Bass Pro from complying with the terms of this Decree. Nothing in this Consent Decree shall prevent Bass Pro from using the Decree as a defense to claims brought by individuals who are covered by this Decree.
18. Bass Pro, its officers, agents, employees, successors, assigns and all persons acting in concert with them are enjoined from engaging in any form of retaliation against any person because such person has opposed any practice made unlawful under Title VII, filed a Charge of Discrimination under Title VII, testified or participated in any manner in any investigation, proceeding, or hearing under Title VII, asserted any rights under this Decree, or benefited from the relief provided by this Decree.
I 9. Defendants, their officers, agents, employees, successors, assigns and all persons acting in concert with them are enjoined from failing to make, keep, preserve, and retain all applications and related documents, as provided to Defendants, as required by Title VII and its implementing regulations.
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MONETARY BELIEF

20. Within forty-five (45) days ofthe Effective Date, and provided Defendants receive a completed W-9 for the Qualified Settlement Fund and wiring instruction, Defendants will deposit a total of Ten Million, Five Hundred Thousand Dollars (SlO,SOO,OOO.OO) in monetary relief Into an interest-bearing Qualifled Settlement Fund ("QSF'' account to be established and administered by a third-party claims administrator ("Claims Administrator'') for purposes of

disbursing monetary relief form the QSF to Eligible Claimants. The Claims Administrator shall be mutually agreed upon by the parties. Defendants will notifY EEOC in writing after they have completed payment Into the QSF.

21. Distributions from the QSF to Eligible Claimants will be made by the Claims Administrator in accordance with instructions from EEOC and the claims process outlined in this Decree. Defendants will not participate or have a role in determining eligibility for monetary

payments or the amounts ofthose awards, except as otherwise provided herein, to the extent that Defendant waives any untimely receipt of a release and/or completed tax reporting form(s), as completed by a potential Eligible Claimant.

22. Bass Pro.

Defendants' share of all applicable payroll taxes (e.g., FICA) shall be paid for by

23. Payment of the Claims Administrator, including any fees and costs, will be made from interest earned on the settlement funds in the QSF. In the event this interest is insufficient to cover these funds and costs, and in the event there are any unallocated funds from the QSF, any unallocated funds will first be paid to the Claims Administrator to cover such funds and costs or used to reimburse Defendants for any amounts advanced to the Claims Administrator.

24. If there are any additional unallocated funds remaining in the QSF after

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distribution to all Eligible Claimants, followed by payment of any remaining balance or reimbursement to Defendants for amounts advanced to the Administrator for its costs and fees, the Claims Administrator shall distribute the remainder as a donation by Defendants, as determined by Defendants, to one or more public or not-for-profit organizations that are primarily devoted to education and/or training of minorities, including but not limited to educational institutions, and/or educational scholarships and/or internships for minority students, and/or promoting minorities engaging in the outdoors and/or outdoor activities. Defendants shall propose to EEOC the minority individuals and/or organization(s) to whom the proposed amount(s) in which the remaining balance of the QSF wiJJ be paid, the list of potential organizations which is which will be provided to EEOC within six (6) months of the Effective Date of the Decree, and the EEOC shall not unreasonably withhold approval of such recommended amounts paid to minority applicants and/or organizations, as applicable. In no event shall there be any reversion ofany part ofthe settlement funds to Bass Pro or to the EEOC.
CLAIMS APMJNISTRATOR
25. As referenced above, Defendants and EEOC will mutually agree upon a elalms administrator to perform the duties under this Decree.
26. No later than forty-five (45) days of the Effective Date, Defendants shall engage the Claims Administrator to commence its duties in accordance with this Decree and instructions described herein. If the Claims Administrator cannot perform its duties in a proficient manner or at reasonable cost, Defendants will recommend an alternative Claims Administrator, and approval by the EEOC will not unreasonably be withheld.
27. The Claims Administrator shall: (I) mall notices and forms related to identification of potential eligible claimants, settlement, claims forms and claims notices; (2) receive claim forms; (3) transmit notification of monetary awards; (4) issue checks to Eligible
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Claimants from the Settlement Fund; (S) issue related tax documents; and (6) perfonn such other administrative tasks as it may deem necessary to facilitate the claims process, which may include:
a) Assisting in locating potential Eligible Claimants, as described herein; b) Corresponding with potential and actual Eligible Claimants; c) Receiving and processing telephone and written inquiries from potential
and actual Eligible Claimants; d) Detennining, calculating, maintaining and making payments from the QSF; e) Creating, tracking and maintaining data regarding potential and actual
Eligible Claimants and payments made from the QSF; f) Reviewing and evaluating information received from potential and actual
Eligible Claimants; g) Engaging in outreach to potential Eligible Claimants by advertising in local
publications and/or social media; and h) Performing other duties set forth in this Decree and as the EEOC and
Defendants reasonably detennine are necessary to administer the Decree. 28. The Claims Administrator shall prepare and file all appropriate tax filings and reports, including but not limited to tax returns required to be filed by the QSF and W-2 and 1099 forms for all payments from the QSF. The Claims Administrator shall pay any taxes owed by the QSF from funds held by the QSF.
(:LAIMS PRQCESS
29. Development of Applicant Database and Mailing to Assllt in ldeatifying Potential Ellglble Claimants. Within sixty (60) calendar days of entry of the Decree: (1) EEOC shall provide the Claims Administrator with the names and addresses of all potential Eligible
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Claimants and any applications in its possession covering potential Eligible Claimants; and (2) Bass Pro counsel shall forward any applications in its possession covering potential Eligible Claimants. During a six (6) month period following entry of the Decree, Bass Pro also shall engage in good faith efforts to locate and produce applications completed by applicants during the applicable time period for potential Eligible Claimants, and such applications also shall be forwarded to the Claims Administrator and EEOC.
Based on the infonnation received from EEOC and Bass Pro, the Claims Administrator shall prepare an excel list of all known applicants during the applicable time period, which shall include the name, address, telephone number, date of application, as well as any EEO status or available email address included as part of any application form. To provide the best notice practicable, before any mailing to such individuals, the Claims Administrator will run the list of all potential Eligible Claimants through the United States Postal Service's National Change of Address database ("NCOA''). The Claims Administrator shall engage in good faith efforts to complete the database within nine (9) months after entry of the Decree, which shall then be forwarded to EEOC for review and approval. Assuming approval by EEOC, within ninety (90) days of approval by EEOC, the Claims Administrator shall send out a Notice, attached hereto as Exblbit A, to all such fonner applicants, except as otherwise limited by the EEOC, which shall request all Black and Hispanic applicants to self-identifY and confirm that they applied for employment at Bass Pro during the applicable time period Such self-identification shall be made by such individuals completing and returning a self-addressed return postcard (included as part of Exhibit A) to the Claims Administrator, which includes such self-identification and the potential Eligible Claimant's name, address, telephone number and e-mail address (ifavailable).
In the limited circumstances where applications cannot be located andJor where only a limited number of applications are retrieved for the applicable time period for a Covered Store,
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additional appropriate outreach will be engaged in by the EEOC and/or the Claims Administrator to identifY applicants who may be potential Eligible Claimants, which may include advertisements in local newspapers and/or social media. Any proposed advertisements to assist in such outreach will be reviewed with Bass Pro prior to being finalized. Any individuals who selfidentifY as applicants for the relevant time period based on such outreach will be required to complete and return a questionnaire, which is included herein as part of Exblblt B, and such questionnaire will be required to be completed and returned no later than sixty (60) days after being sent to each such individuals by the Claims Administrator in order for such individual to be considered as a potential Eligible Claimant. A copy of all completed questionnaires shall be forwarded to EEOC, which shall make a final detennination whether such individuals shall be included on the list of Eligible Claimants. Such questionnaires received by the Claims Administrator shall be treated as confidential by EEOC, except that such Claim Fonns may be submitted confidentially to the Court, if requested by the Court.
Based on responses to the self-identification notice (Exhibit A) and the independent outreach based Exhibit B, and input from EEOC, the Claims Administrator shall update the Excel list in order to develop a final proposed list of potential Eligible Claimants, which shall include the applicable contact infonnation and shall be limited to Black or Hispanic applicants (including applicants of two or more races, one of which is Black or Hispanic). Thereafter, within ninety (90) days of receipt of such list of potential Eligible Claimants, EEOC shall detennine the final list of potential Eligible Claimants, and notifY the Claims Administrator and Bass Pro's legal counsel ofall potential Eligible Claimants.
30. Determination of Claims. Within ninety (90) days of receipt ofthe updated list of potential Eligible Claimants, EEOC shall make a final detennination of potential Eligible Claimants and the amount to be paid to each Eligible Claimant ("Detennination of Claims·~. and
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Bass Pro shall be notified of the amount to be paid to each Eligible Claimant. The Determination as to the amount received by any Eligible Claimant is within the sole discretion ofthe EEOC.
31. Notification of Award. Within sixty (60) days after receiving the final approved list of potential Eligible Claimants from EEOC, the Claims Administrator shall notify each Eligible Claimant via U.S. First Class Mail of the amount of his/her potential monetary payment, as determined by EEOC, based on a letter attached hereto as Exhibit C.
32. Release of Claims. Along with the Notification of Award, the Claims Administrator shall mail to each Eligible Claimant a Release (a copy of which is attached hereto as Exhibit D), and all applicable tax reporting forms. Each Eligible Claimant will be notified that in order to receive monetary payments under this Decree, he or she must complete, sign and deliver to the Claims Administrator a Release and the applicable tax reporting form(s). The letter will inform each Eligible Claimant that such Release must be signed, not altered in any manner, and mailed to the Claims Administrator so that it is received by the Claims Administrator within sixty (60) days of the mailing of the Notification of Award and obligate the Eligible Claimant to notify the Claims Administrator of any future changes of address for payment. Any potential Eligible Claimant whose executed Release and completed tax reporting fonn(s) are not received by the Claims Administrator within sixty (60) days of the mailing of the Notification of Award shall be ineligible for and forever barred from receiving any relief under this Decree. except that the Claims Administrator shall engage in outreach with any potential Eligible Claimant who timely responded, but returned a deficient release and/or tax reporting form(s) and provide an additional thirty (30) days to properly complete and return such forms. Any further exception to the untimely receipt of the release and/or any required tax reporting fonn(s) must be mutually agreed upon by EEOC and Defendants, through legal counsel. Within thirty (30) days after the deadline for returning the completed release and tax reporting fonns, the Claims Administrator
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shall provide EEOC and Defendants' legal counsel with the list of all Individuals who timely responded.
33. Returned Notification of Award. If envelopes from the mailing of the Notification of Award are returned with forwarding addresses, the Claims Administrator will re· mail the Notification of Award to the new address within three (3) business days. If no forwarding address has been provided, the Claims Administrator will promptly notifY the EEOC, and the EEOC may attempt to obtain updated address information. If the EEOC provides new addresses to the Claims Administrator, the Claims Administrator will re-mail Claim Packages with ftve (!) business days of receipt of the new address. If a postal address is not available but an email address is available, the Claims Administrator may use email as a substitute.
34. Late Claims. For claims received after the filing deadline, the Claims Administrator shaiJ notify the late-filing individuals that their claims are untimely and that they are not eligible for any monetary award. The checks will be valid for one-hundred and twenty (120) days from the date ofthe check and thereafter will be viewed as stale and void.
35. Distribution of Settlement Fuad. The Claims Administrator shall issue checks to each Eligible Claimant within thirty (30) days of the date of receipt of a properly completed and signed release and properly completed and signed required tax reporting form(s), as determined by the Claims Administrator. The Claims Administrator will consult with EEOC and Defendants' counsel prior to making any final determination that the documents received by a potential Eligible Claimant arc deficient.
36. Returned or Uncasbed Checks. The Claims Administrator shall promptly notify EEOC and Bass Pro in writing of any checks that are returned or are not cashed after a period of ninety (90) days has elapsed from the date on which the settlement checks were mailed. In the event that any Eligible Claimant's check is undeliverable or uncashed, and the EEOC determines
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that the Eligible Claimant cannot be located (hereafter referred to as a "missing Eligible Claimant''· the missing Eligible Claimant shall receive no payments under the Decree. In the event that any portion of the Settlement Fund has been allocated to a missing Eligible Claimant, and therefore cannot be distributed to the claimant, one hundred fifty (ISO) days after the checks were originally mailed, in the discretion of the EEOC, the balance of the Settlement Fund shall become part of the unallocated balance and the funds shall be distributed per the terms of paragraph 24 ofthis decree.
37. Claims of Deceased Persons. Monetary payments will be made on behalf of deceased claimants through representatives of their estate or next of kin if the EEOC determines that appropriate documentation (e.g., letters testamentary or the equivalent) has been provided. Any sums paid to a deceased claimant shall be made payable to the estate of the deceased claimant, or ifno estate exists, to the decedent's next of kin, assuming all legal requirements are met prior to such payment.
38. Tax treatment. Seventy-five percent (75%) of the amounts distributed from the settlement funds to Eligible Claimants constitute "compensatory damages," under the Civil Rights Act of 1991, 42 U.S.C. § 198la. Twenty-five percent (25%) shall constitute back pay from which the employee's share of payroll taxes shall be withheld. All payroll taxes shall be paid from the QSF. The Claims Administrator will issue applicable forms W-2 and 1099 based on the year in which such funds are paid to an applicable Eligible Claimant, reflecting the payments made to each claimant from the Settlement Fund.
RECRWTING. HlftJNG ANP OUTREACH EFFORIS 39. Bass Pro shall engage in good faith efforts to increase diversity in its workforce by conducting recruitment activities toward qualified Black and Hispanic applicants.. In pursuit of this endeavor, Bass Pro shall engage in the following activities:
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a. Reaching out to colleges, universities, community colleges, and/or technical schools with a significant minority population to post job openings for applicable positions. Bass Pro will make good faith efforts to identify such educational institutions, and the EEOC also will assist in identifying such educational institutions.
b. Participating in select job fairs held at communities with large populations ofcolor within 25 miles of a store.
c. Posting job openings in publications historically popular among Black and Hispanic communities.
d. Posting job openings in publications popular among Hispanic or immigrant communities.
e. Posting job openings in publications that circulate in Spanish and/or websites directed toward the Hispanic community, but doing so does not in any way require Bass Pro to hire applicants who do not have native proficiency in the English language.
f. Developing a diversity and inclusion section in Bass Pro's website discussing job opportunities and inclusion efforts.
40. Bass Pro will engage in good faith outreach activities to recruit and hire qualified non-White (which includes Black and Hispanic) applicants for its retail stores consistent with their availability in the qualified work force and will make a good faith effort to achieve parity in the hiring rates of qualified White and qualified non-White applicants in the applicant pool for available positions at its stores during the term ofthis Decree.
41. Bass Pro shall include a description of its outreach and hiring efforts in its semi14

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annual report to the EEOC, as referred to in paragraph S1 of the Decree, and shall provide such documents to the EEOC, upon request.
BJRING PROCEDUBES
42. Within one-hundred and eighty (J 80) days of entry of this decree, Bass Pro shall have in place a written, systematic, predetermined hiring procedure that Is disclosed to all applicants to ensure that applicants are evaluated based upon their qualifications and interest in open positions and not on race or national origin.
43. Within one-hundred and eighty (180) days of entry of this decree, Bass Pro shall have in place written job-related hiring criteria which expressly prohibit hiring decisions based on race or national origin.
44. Within one-hundred and eighty (180) days of entry of this decree, Bass Pro shall develop and implement a clearly described complaint process to be incorporated into Bass Pro's employment application that informs applicants of an internal complaint procedure to address any failure to hire claim.
45. Bass Pro shall include a description of such changes in its semi-annual report to the EEOC, as referred to in paragraph S1 of the Decree, and shall provide such documents to the EEOC upon request.
POSTING OF NOTICES
46. Within thirty (30) days following entry of this Decree, Bass Pro shall post a samesized copy of the Notice attached as Exblbit E to this Decree in a conspicuous location easily accessible to and commonly frequented by applicants for employment, and also for employees at each Covered Store or in such other manner reasonably designed to be seen or received by such individuals.
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47. The Notices shall remain posted for the duration of the Decree. Bass Pro shall ensure that the postings are not altered, defaced or covered by any other material.
48. Bass Pro shall certify to EEOC in writing within forty-five (4S) days after entry of this Decree that the copies of the Notices have been properly posted and identify the locations of the postings.
BECOBD J{EEPING
49. For the duration of the Decree. Bass Pro shall maintain and shall make available for review, inspection and copying by the EEOC documents that show Bass Pro's compliance with the terms ofthis Decree.
50. Bass Pro shall make all documents or records that show Bass Pro's compliance with the terms ofthis Decree available for inspection and copying within thirty (30) calendar days after the EEOC so requests.
REPORTING 51. Six (6) months after entry of this Decree, and at six (6) month intervals thereafter for the duration of the Decree, Bass Pro shaU provide Semi-Annual Reports to the EEOC. Bass Pro's final Semi-Annual Report shall be due thirty (30) days before the expiration of the Decree. Bass Pro's Semi-Annual Reports shall summarize Bass Pro's good faith efforts to comply with the terms of this Decree. The reporting shall cover all aspects of this Decree, with specific emphasis on Defendant's hiring rates on a store-by-store basis for the Covered Stores as noted in paragraph 40 and distribution of monies, training, and EEO policies. Bass Pro shall maintain the documents relied on to prepare any reports on hiring data, which will be made available to the EEOC within thirty (30) days of such request following receipt of a semi-annual report. This Decree shall not be viewed as modifying in any manner Bass Pro's legal obligations independent
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of this decree, including Its requirement to file EEO·l Reports in accordance with Federal law and any applicable rules or regulations.
POLJCIES AGAINST DISCRIMINATION
52. Within one-hundred eighty (180) days ofthe date ofthe entry ofthis Decree, Bass Pro shall review their policies against discrimination and retaliation and revise them, if necessary, so that such policies include, at minimum, the following:
a. A prohibition against race discrimination, including examples of actions that arc prohibited;
b. A prohibition against national origin discrimination, including examples of actions that are prohibited;
c. A prohibition against retaliation for complaining about race discrimination or harassment;
d. A provision that employees can complain of race discrimination, harassment, or retaliation to multiple sources within Bass Pro, including human resources; and that any supervisory or management employee who receives a complaint ofrace and national origin discrimination, harassment, or retaliation must report the complaint to human resources;
e. A provision that employees are not required to complain of race or national origin discrimination, harassment, or retaliation to a person against whom they allege discrimination, harassment, or retaliation;
f. A provision tbat managers who receive a complaint of race or national origin discrimination, racial harassment or retaliation, or who witness or otherwise become aware of race discrimination, racial harassment or
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retaliation, must report the conduct to Human Resources; g. A provision that an employee found to have engaged in race or national
origin discrimination or harassment, will be subject to discipline, up to and including tennination; h. A provision that Bass Pro will protect the confidentiality of discrimination, harassment, and retaliation complaints to the extent possible; i. A provision that employees who complain of race discrimination, race or national origin harassment or retaliation or provide information related to such complaints will not be retaliated against and that employees engaging in retaliation will be subject to discipline, up to and including termination; j. A provision that, promptly upon the conclusion of its Investigation of a complaint, Bass Pro will communicate to the complaining party that the investigation has been concluded and that corrective action has been taken, where appropriate; k. Bass Pro shall notify all employees of such policies within one-hundred eighty (1 80) of this Decree, and such policies shall be distributed to and/or made available for review by all employees; I. Bass Pro shall make its anti-discrimination and anti-retaliation policies available to new hires upon hire; and m. Bass Pro shall consider the establishment of an 800 number to report complaints ofdiscrimination and/or harassment. 53. Bass Pro shall describe its compliance with paragraph S1 in its semi-annual report to the EEOC, and upon request shall provide the EEOC with copies of such documents.
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TRAINING
54. During the term of this Decree, Bass Pro shall provide annual training for all nonmanagement employees regarding Title VII's prohibition on discrimination based on race and national origin, (including. without limitation, discrimination in hiring. racial harassment, and other tenns and condition ofemployment) and retaliation.
55. All managers, human resources professionals, or employees who work at any of the Bass Pro Covered Stores and/or who have any responsibility for hiring at any ofthe Covered Stores (including by having input into or deciding which applicants to interview or hire, interviewing applicants, or making hiring decisions) or for enforcing Bass Pro's policy against discrimination and retaliation will participate in a separate session for such employees designed to cover their responsibilities under Title VII (hereafter, "management training session").
56. All training required by this Section shall be conducted by an outside trainer paid for by Bass Pro and approved by EEOC. The first annual training shall take place within ninety (90) days after Bass Pro has issued its employment policies as required in this Decree.
57. Bass Pro shall obtain approval from the EEOC oftheir proposed trainer prior such individual conducting a training session, but the EEOC shall not unreasonably withhold its approval of such sessions. Bass Pro shall submit the name, address, telephone number, resume and training proposal of the proposed trainer to the EEOC at least (30) calendar days prior to the proposed commencement date(s) ofthe training(s). The EEOC shall have seven (7) days from the date of receipt of the information described above to accept or reject the proposed trainer and/or proposal. In the event the EEOC does not approve Bass Pro's designated trainer or proposal, Bass Pro shall have twenty-one (21) days to identifY an alternate trainer and/or provide a new training proposal. The EEOC shall have fourteen (14) business days from the date of receipt of the information described above to accept or reject the alternate trainer and/or proposal. If the
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parties cannot through this process agree on a trainer or training proposal, then they may seek the Court's assistance to resolve any impasse. OtheJWise, based on any trainer selected and approved by EEOC, Bass Pro shall ensure that EEOC is provided a copy of the training materials at least ten (10) days in advance ofthe applicable training session.
58. The EEOC shall not unreasonably refuse approval of the trainer chosen by Bass Pro.
59. Bass Pro shall certify to the EEOC, in writing, in its semi-annual reports regarding each management training sessions that has taken place, including the date, location (i.e. applicable retail store), duration of such management training session, and the number of participants in such training. Bass Pro also shall maintain records of such training, which includes a copy of the registry of attendance, which shall made available to the EEOC, upon request, within sixty (60) days of providing a semi-annual report
60. Bass Pro also shall certify to the EEOC, In writing, in its semi-annual reports any training sessions for non-management employees that has taken place, including the date, location (i.e., applicable retail store), duration of such non-management training sessions, and the number of participants in such training. Bass Pro also shall maintain records of such training, which includes a copy of the registry of attendance, which shall made available to the EEOC, upon request, within sixty (60) days of providing a semi-annual report
NEWLY CREAIED OmCE OF DIVERSITY AND INCLUSION AND ArPOINTMENI
OF DJYERSITY DIRECTQR 6J. Bass Pro will create an Office of Diversity and Inclusion that will be tasked with implementing and executing this Decree. 62. Bass Pro will create a position for a "Director of Diversity and Inclusion," hereafter the "Diversity Director," who will be tasked with leading the Office of Diversity and
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Inclusion and with overseeing the company's compliance with this agreement, as well as with ensuring accuracy ofthe company's reporting.
63. The Diversity Director will be appointed within four (4) months ofthe effective date of this Decree, will be elevated to the role of Human Resources Director, and will report to the Human Resources Vice President.
64. The Diversity Director can be either selected from Bass Pro's current employees or hired from outside the company.
65. The Diversity Director will be a qualified EEO professional. A "qualified EEO professional'' is a person with at least five (5) years of professional work experience in the areas of Human Resources and/or Equal Employment Opportunity, and a four-year college degree and/or at least 120 hours of course work and/or training in the areas of Human Resources and/or Equal Employment Opportunity.
DISPUTE BESOLVTION 66. Any party may raise concerns arising from this decree and the parties agree to meet and /or confer regarding such disputes and/or concerns. Further, in the event that either party to this Decree believes that the other party has failed to comply with any provision(s) of the Decree, the complaining party shall notify the other party of the alleged non-compliance in writing (either via letter or e-mail) and shall afford the alleged non-complying party thirty (30) business days to remedy the non-compliance or to satisfy the complaining party that the alleged non-complying party has complied. If the alleged non- complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within thirty (30) business days, the complaining party may apply to the Court for appropriate relief, which may include modification of this Decree. This Decree is only enforceable by the EEOC.
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DJJBATIDN OF DECREE ANP BETENTION OF .DJRJSI)ICDON 67. All provisions of this Decree shall be in effect (and the Court will retain jurisdiction of this matter to enforce this Decree) for a period of forty-two (42) months immediately following entry ofthe Decree.
MISCELLANEOUS PRQyJSIONS 68. The terms of this Decree shall be binding upon the present and future directors, officers, managers, agents, successors and assigns of Bass Pro. It Is hereby established that Bass Pro and any successor(s) of Bass Pro, shall provide a copy of this Decree to any organization or person who proposes (in writing) to acquire or merge with Bass Pro, or any successor ofBass Pro, prior to the effectiveness of any such acquisition or merger. This Paragraph shall not be deemed to limit any remedies available in the event of any finding by the Court regarding a violation of this Decree. 69. Each party to this Decree shall bear its own expenses, attorney's fees, and costs. 70. If any provislon(s) of the Decree are found to be unlawful, only such provision(s) shall be severed, and the remainder of the Decree shall remain in full force and effect. When this Decree requires notifications, reports, and communications to the Parties, they shall be made in writing and hand-delivered, mailed, e-mailed, or faxed to the following persons:
For EEOC: Bass Pro Settlement Attn: Timothy M. Bowne Equal Employment Opportunity Commission 1919 Smith Street, 6th Floor Houston, TX 77002 Facsimile: (713} 651-7995 timothy.bowne@eeoc.goy
22

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 23 of 31

For the Bass Pro Defendants: Any party may change such persons or addresses by written notice to the other party, setting forth a different individual or address for this purpose.
BASS PRO OUTDOOR WORLD, LLC

GWENDOLYN YOUNG REAMS Associate General Counsel
RUDY L. SUSTAITA Regional Attorney
TIMOTHY M. BOWNE Senior Trial Attorney

DANDSI7thi.2!..._-!-of--9-'14..._. ~

f-

1
_

_,.2017.

23

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 24 of 31
EXHJBITA CLAIMS ADMINISTRATOR LETTERHEAD [Insert Name and Address] Dear We have been retained by the Equal Employment Opportunity Commission (EEOC) and Bass Pro Outdoor World, LLC to engage in outreach to identify certain applicants who applied for employment at Bass Pro between February 20, 2007 and April 30, 2010 It is our understanding that you applied for employment at one of Bass Pro's retail operations between February 20,2007 and April30, 2010. Assuming that you did apply at Bass Pro during this time period, the EEOC may determine that you are to be included as a part of a class to receive a monetary award. Please complete and return the attached response card If you are African-American or Hispanic and applied for employment at Bass Pro during the abovereferenced time period. There has not been any finding that Bass Pro engaged in discrimination, but as part of Bass Pro's equal employment opportunity efforts, the EEOC and Bass Pro agreed to resolve a matter as part of collaborative efforts to further strengthen Bass Pro's hiring practices. If you have any questions regarding this matter, please direct your questions to [insert applicable telephone number] or via email at [insert applicable email address]. Please allow five business days for us to respond to your inquiry.
Sincerely,
[insert applicable contact person

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 25 of 31
Bass Pro Outdoor World, Inc. Name:_ _ _ _ _ _ _ _ __ Email Address:_ _ _ _ _ __ Address:,_ _ _ _ _ _ _ _ _ _Telephone Number:._ _ _ _ __ Please complete and return this notice, If applicable: _ I am African American/Black and I applied for employment at a Bass Pro retail store between February 20,2007 and April30, 2010 _ I am Hispanic, and I applied for employment at a Bass Pro retail store between February 20, 2007 and April30, 2010.
Place Stamp Here Address of CLAIMS ADMINISTRATOR Administration

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 26 of 31

EXB1BITB CLAIMS ADMINISTRATOR LETTERHEAD

[DATEJ

Dear Mr./Ms. (Last Name):

We have been retained by the Equal Employment Opportunity Commission (EEOC) and Bass Pro Outdoor World, LLC to engage in outreach to identify certain applicants who applied for employment at Bass Pro between February 20, 2007 and April30, 2010

It is our understanding that you said you applied for employment at one of Bass Pro's retail operations between February 20,2007 and April 30, 2010. Assuming that you did apply at Bass Pro during this time period, the EEOC may determine that you are to be included as a part ofa class of African American/Black and Hispanic applicants to receive money obtained by the EEOC through a Settlement Agreement negotiated with Bass Pro. There has not been any
finding that Bass Pro engaged in discrimination, but as part of Bass Pro's equal employment opportunity efforts, the EEOC and Bass Pro agreed to resolve a matter as part of collaborative
efforts further strengthen Bass Pro's hiring practices.

In order to be considered for potential Inclusion in this settlement, please complete and return the

attached questionnaire in the self-addressed envelope by

2017. Upon receipt of your

completed form, the EEOC may be in touch with you requesting additional Information.

If you have any questions regarding this matter, please direct your questions to [insert applicable telephone number] or via email at [insert applicable email address]. Please allow five business days for us to respond to your inquiry.

Sincerely, {Insert applicable contact person

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 27 of 31

CLAIMS ADMINISTRATOR LETTERHEAD
EEOC v. BASS PRO OUTDOOR WORLD, LLC QUESTIONNAIRE FOR POTENTIAL ELIGIBLE CLAIMANT

Name and Address:

Telephone contact numbers:
Home: • ...............- -...............~Ho~·--------------Work:
-----------------~Hours:__________..............
Cell:
-----------------~Hours:__________________

Please respond to the following:

Email Address:

1. Did you apply for work at a Bass Pro Retail Store?

2. If yes, please indicate:

• At what Bass Pro location(s) did you a p p l y ? - - - - - - - - • Did you apply for employment between February 20p 2007 and April 30., 201 0?
_ Yes_No If you responded "yes," on approximately what date(s) did you apply?

• •

WWheraet

you personally interviewed for a p o s i t i o n ? - - - - - - - position(s)? ______________________

• Do you recall the person(s) you interviewed with? • Any additional details?____________________________

3. Have you ever been employed by Bass Pro?-----· If so, please include your dates of employment._______________________________________
4. Please identify your EEO status: (check as applicable)
_White (Non-Hispanic) Black
_Hispanic _Two or More Races, Including African American or Hispanic
Other

I hereby declare, under penalty of perjury, that the foregoing infonnation is true and correct.

(Signature)

Date:----------

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 28 of 31

[Date]

EXHIBIT C- Letter from Claims Admlalatcator

Dear Mr./Ms. (Last Name):

We have been retained by the Equal Employment Opportunity Commission (EEOC) and Bass Pro Outdoor World, LLC to process claims based on a settlement of a lawsuit.

Based on a court settlement with Bass Pro Outdoor World, LLC, the EEOC has determined that

you are eligible to participate in a settlement based on your application for employment at Bass

Pro Outdoor World, LLC between February 20, 2007 and April 30, 2010.' Based on the

settlement, you are eligible to receive a total gross payment $

. There will be deductions

for state and federal withholding for a portion of the payment, and the remaining portion will be

in a lump sum. As a condition for receipt of this payment, you are required to comply with the

following: (1) sign and return a copy of the enclosed tax reporting forms and, (2) sign and return

the enclosed Release of Claims. The tax reporting forms and Release of Claims must be

delivered to [INSERT CLAIMS ADMINISTRATOR] _at

no later than

-::---:-:-- [insert date _ days from tbe date of tbls letter]. For your convenience,

enclosed is a self-addressed return envelope.

The payment does not constitute an admission by Bass Pro of any violation of any federal discrimination law or any other laws, and Bass Pro affirmatively denies that it any time violated any federal discrimination law or any other laws. The EEOC and Bass Pro have agreed to resolve a recent matter as part of collaborative efforts between the EEOC and Bass Pro to further
strengthen Bass Pro's hiring practices. This settlement only applies to African American/Black or
Hispanic applicants who applied for employment at one of Bass Pro's retail stores during the above-referenced time period. If you do not meet the requirements for eligibility, please disregard this letter.

If you have any questions regarding this matter. please direct your questions to {insert applicable telephone numberJ or via email at [insert applicable email address]. Please allow five business days to respond to your inquiry
Sincerely,

[insert applicable contact person]

1 This sentence will be modified based on a specific list of individuals outside this time period who will be Included in this settlement.

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 29 of 31

EXHIBIT D- RELEASE OF CLAIMS FQRM

In consideration of the sum of S

which I agree is acceptable, based on a Consent

Decree entered into between Bass Pro Outdoor World LLC (''Bass Pro" or "Company'') and the

Equal Employment Opportunity Commission ("EEOC"), I,

{print full name),

agree to the following tenns, as set forth in this Release of Claims Form (herein referred to as

"Release"):

I. I understand that based on an agreement between the EEOC and Bass Pro, assuming I

comply with the conditions below, I am be eligible to receive the total payment of

- - - - - DOLLARS ($

) ("Settlement Payment''), less deductions required

by law for twenty-five percent (25%) of the payment and a lump sum payment for the

remaining seventy-five percent (75%) for such payment. I understand that such payments

will be reflected on an Internal Revenue Service Fonn W-2 and an IRS Form 1099 at the

end of the calendar year in which payment is made. Monies reported on an IRS Form 1099

wiU not be reduced for taxes or other payroll deductions, and I understand that I may owe

income taxes on the amounts reported to me on the IRS Form 1099. I understand that the

amount received in a lump sum (i.e. the 75% lump sum payment) is attributable to non-

economic damages and interest. I further understand that the above referenced Settlement

Payment will be forwarded to me by a third party retained by Bass Pro and receipt of the

Settlement Payment shall have the same effect as if paid directly by Bass Pro.

2. In exchange for the monetary amount set forth above, I hereby waive, release and forever discharge Bass Pro, and any related entities, and their directors, officers, employees, agents, successors and assigns (collectively referred to as "Company''), of and from any and all actions, causes of action, damages, liabilities, and claims (collectively referred to as "Claims"), arising out of or actionable under Title VII of the 1964 Civil Rights Act, as amended by the Civil Rights Act of 1991, based on any claim involving race and/or national origin and/or retaliation as related to employment hiring practices regarding such Claims, which I or my representatives, heirs, executors, administrators or assigns, have or may have which relates in any way to my non-selection for employment at Bass Pro's at any time between February 20,2007 up through the date ofthis Release2•

3. I understand that the payment ofthe Settlement Payment is not an admission of wrongdoing of any kind by the Company.

4. I affirm that the only consideration for signing this Release are the terms set forth above and that no other promises or assurances of any kind have been made to me by the Company, the EEOC and/or any other entity or person as an inducement for me to sign the Release. I acknowledge that I fully understand the terms of this Release as it has been written, as well as the legal and binding effect ofthis Release, as described above, and that if I am concerned about how the process described in this Release or the waiver of claims

2 This sentence shall be modltled for any individuals expressly Included in this settlement, who did not apply for employment and/or worked at Bass Pro during this time period.

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 30 of 31

provision described above applies to me, I may contact my own advisors for appropriate legal advice.

S. I acknowledge and agree that Bass Pro has made no representations or warranties or promises of any kind or nature regarding the tax consequences of any amounts received by me pursuant to the Agreement or this Release. I agree to pay federal or state taxes, if any,
which are required by law to be paid by me with respect to the Settlement Payment, except as to those deductions withheld by Bass Pro from the wage portion of the Settlement Payment.

6. I declare that I have carefully read this Release and that I fully understand the extent and importance ofits provisions. I affirm that I am fully competent to execute this Release, that I have had a full opportunity to consider and understand its terms and to consult with my own advisors, and that I have decided to voluntarily, and of my own free will, to sign this Release.

7. I understand in order to be eligible for receipt of the above referenced payment, the

Company must receive this signed Release and completed tax reporting forms, attached to

the letter accompanying this Release of Claims Form, no later than

[Insert

applicable date per Coaseat Decree} and the failure to return the signed Release and

accompanying completed tax reporting forms, on a timely basis will result in not being

entitled to receipt ofthe payment described above.

Signature

Date

Case 4:11-cv-03425 Document 378 Filed in TXSD on 07/25/17 Page 31 of 31
EXHIBIT E -NOTICE TO EMPLOYEES
On July _, 2017, Bass Pro Outdoor World, LLC and the Equal Employment Opportunity Commission entered into an agreement to strengthen Bass Pro's diversity efforts. This Notice is to remind all Bass Pro employees oftheir rights and responsibilities.
Unlawful Dfserfmtaatlon or Harassment. Under federal law, it is unlawful for an employer to discriminate or engage in harassment based on race, color, religion, sex, national origin, disability or age (40 or over). This means that a supervisor or manager cannot make decisions about hiring, promotion. pay or other conditions of employment, based on race, color, religion, sex, national origin, disability or age (40 or over).
Unlawful Retaliation. It also is unlawful to discriminate, harass or retaliate against any individual who reports or complains about what he or she believes to be unlawful discrimination based on race, color, religion, sex, national origin, disability or age (40 or over).
Reporting Improper Conduct. If you are aware of any events, conduct, or infonnation, which you believe may indicate some improper discrimination, harassment or retaliation, it is very important that you report the information so the necessary steps may be taken to investigate, identify, and promptly remedy any problems. You may report such improper conduct to any of the following:
• Reporting to Bass Pro: Within the Bass Pro organization, you make may such a report to the store's Human Resources representative, the store's General Manager or to the corporate Human Resources Department. By reporting a problem to Bass Pro, you do not waive any rights to file a charge of discrimination with the EEOC, or your state agency.
• Reporting to the U.S. Equal Employment Opportunity Commission: The EEOC is responsible for enforcing federal laws prohibiting discrimination in the workplace. You may contact directly contact the local EEOC office or toll free at 1-800-669-4000 and the EEOC will forward basic information about a charge to the EEOC field office in your area. For more information about discrimination and how to file a charge with the EEOC, go to www·eeoc.goy
THIS IS AN OFFICIAL NOTICE AND MAY NOT BE DEFAMED BY ANYONE
This Notice must remain posted and may not be altered, defaced and/or covered by any other material. Any questions concerning this notice and/or compliance with its terms may be directed to the EEOC's Houston District Office at the address and telephone number listed above.

 </s> Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 1 of 36
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:11−cv−03425

CLOSED

Equal Employment Opportunity Commission v. Bass Pro Outdoor World, LLC Assigned to: Judge Keith P Ellison Lead case: 4:11−mc−00190 Member case: (View Member Case) Related Case: 4:11−mc−00190
Case in other court: U.S. District Court Southern District of Texas, 4
Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/21/2011 Date Terminated: 07/25/2017 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Equal Employment Opportunity Commission

represented by Alexandra Navarre−Davis Equal Employment Opportunity Commission 1555 Poydras Street Ste 1900 New Orleans, LA 70112 504−595−2914 Email: alexandra.navarre−davis@eeoc.gov ATTORNEY TO BE NOTICED

Andrew Burke Kingsley Equal Employment Oportunity Commission 500 Poydras St Suite 809 New Orleans, LA 70130 504−595−2826 Email: andrew.kingsley@eeoc.gov ATTORNEY TO BE NOTICED

Connie Wilhite Gatlin EEOC 1919 Smith St. 6th Floor Houston, TX 77002 713−651−4976 Fax: 713−651−7995 Email: connie.gatlin@eeoc.gov ATTORNEY TO BE NOTICED

Gregory T. Juge U.S. EEOC Hale Boggs Building, 500 Poydras Street Suite 809 New Orleans, LA 70130 504−676−8239 Fax: 504.595.2886 Email: gregory.juge@eeoc.gov TERMINATED: 01/24/2017 ATTORNEY TO BE NOTICED

Konrad Batog U S EEOC 33 Whitehall St 5th Floor New York, NY 10004 212−336−3700

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 2 of 36
Email: konrad.batog@eeoc.gov TERMINATED: 09/25/2015 ATTORNEY TO BE NOTICED
Robert D Rose US EEOC 33 Whitehall Street 5th Floor New York, NY 10004 212−336−3708 Email: robert.rose@eeoc.gov TERMINATED: 02/08/2016 PRO HAC VICE
Rodolfo Lucio Sustaita EEOC Senior Trial Attorney 1201 Louisiana 6th Floor Houston, TX 77002 713−651−4970 Fax: 713−651−7995 Email: rudy.sustaita@eeoc.gov ATTORNEY TO BE NOTICED
Tanya L. Goldman U.S. EEOC 10 S. Howard St 3rd Floor Baltimore, MD 21201 410−209−2728 Email: tanya.goldman@eeoc.gov ATTORNEY TO BE NOTICED
Timothy M Bowne EEOC 1201 Louisiana Street 6th Fl Houston, TX 77002 713−651−4914 Fax: 713−651−7995 Email: timothy.bowne@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Bass Pro Outdoor World, LLC

represented by Michael W Johnston King & Spalding LLP 1180 Peachtree St Atlanta, GA 30309 404−572−4600 Email: mjohnston@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry A Hartstein Littler Mendelson, P.C. 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 Email: bhartstein@littler.com ATTORNEY TO BE NOTICED

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 3 of 36

Defendant
Bass Pro, Inc. TERMINATED: 10/25/2012

Carolyn Cain Burch King Spalding LLP 1180 Peachtree Street NE Atlanta, GA 30309−3521 404−572−3533 Email: cburch@kslaw.com TERMINATED: 05/27/2015 ATTORNEY TO BE NOTICED
Jona J McCormick King & Spalding LLP 1180 Peachtree Street Atlanta, GA 30309 404−572−4600 Email: jmccormick@kslaw.com ATTORNEY TO BE NOTICED
Lovita T. Tandy King & Spalding LLP 1180 Peachtree St Atlanta, GA 30309−3521 404−572−4600 Email: ltandy@kslaw.com TERMINATED: 08/31/2016
Rebecca Cole Moore King and Spalding LLP 191 Peachtree St Atlanta, GA 30303 404−572−4600 Email: rmoore@kslaw.com ATTORNEY TO BE NOTICED
Samuel M Matchett King Spalding LLP 1180 Peachtree St Atlanta, GA 30309 404−572−4600 Email: smatchett@kslaw.com TERMINATED: 09/19/2016
William Robert Burns King And Spalding LLP 1100 Louisiana Ste 4000 Houston, TX 77002 713−276−7333 Email: bburns@kslaw.com ATTORNEY TO BE NOTICED
represented by Michael W Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn Cain Burch (See above for address) TERMINATED: 05/27/2015 ATTORNEY TO BE NOTICED
Samuel M Matchett (See above for address)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 4 of 36

TERMINATED: 09/19/2016

Defendant Tracker Marine Retail, LLC

represented by Carolyn Cain Burch (See above for address) TERMINATED: 05/27/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barry A Hartstein Littler Mendelson, P.C. 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 ATTORNEY TO BE NOTICED

Jona J McCormick (See above for address) ATTORNEY TO BE NOTICED

Lovita T. Tandy (See above for address) TERMINATED: 08/31/2016

Michael W Johnston (See above for address) ATTORNEY TO BE NOTICED

Rebecca Cole Moore (See above for address) ATTORNEY TO BE NOTICED

Samuel M Matchett (See above for address) TERMINATED: 09/19/2016

Date Filed 09/21/2011 09/22/2011
09/22/2011 09/26/2011
09/28/2011 09/28/2011 10/14/2011

# Docket Text
1 COMPLAINT against Bass Pro Outdoor World, LLC filed by Equal Employment Opportunity Commission.(Bowne, Timothy) (Entered: 09/21/2011)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 12/30/2011 at 02:30 PM in Room 3716 before Judge Keith P Ellison.(Signed by Judge Keith P Ellison) Parties notified.(mfoley) (Entered: 09/22/2011)
3 Notice Regarding Initial Conference.(Signed by Judge Keith P Ellison) Parties notified.(mfoley) (Entered: 09/22/2011)
4 MOTION for Gregory T. Juge to Appear Pro Hac Vice by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/17/2011. (Bowne, Timothy) (Entered: 09/26/2011)
5 ORDER granting 4 Motion to Appear Pro Hac Vice for Gregory T. Juge.(Signed by Judge Keith P Ellison) Parties notified.(bthomas, ) (Entered: 09/28/2011)
6 CERTIFICATE OF INTERESTED PARTIES by Equal Employment Opportunity Commission, filed.(Bowne, Timothy) (Entered: 09/28/2011)
7 MOTION for Robert D. Rose to Appear Pro Hac Vice by Equal Employment Opportunity Commission, filed. Motion Docket Date 11/4/2011. (Bowne, Timothy) (Entered: 10/14/2011)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 5 of 36

10/18/2011 11/21/2011 11/22/2011 11/28/2011 11/28/2011 11/29/2011 12/01/2011 12/05/2011 12/21/2011 12/22/2011 12/22/2011 01/05/2012
01/05/2012
01/06/2012

8 ORDER granting 7 Motion to Appear Pro Hac Vice as to Robert D. Rose.(Signed by Judge Keith P Ellison) Parties notified.(chorace) (Entered: 10/18/2011)
9 Joint MOTION for Extension of Time to Answer or Otherwise Respond to Complaint( Motion Docket Date 12/12/2011.), Joint MOTION Set Briefing Schedule by Bass Pro Outdoor World, LLC, Equal Employment Opportunity Commission, filed. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 11/21/2011)
10 MOTION for Konrad Batog to Appear Pro Hac Vice by Equal Employment Opportunity Commission, filed. Motion Docket Date 12/13/2011. (Bowne, Timothy) (Entered: 11/22/2011)
11 NOTICE of Resetting. Parties notified. Initial Conference set for 1/18/2012 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe) (Entered: 11/28/2011)
12 ORDER granting 9 Motion for Extension of Time; granting 9 Motion.(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 11/29/2011)
13 ORDER granting 10 Motion to Appear Pro Hac Vice.(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 11/29/2011)
14 NOTICE of Appearance by William R. Burns on behalf of Bass Pro Outdoor World, LLC, filed. (Burns, William) (Entered: 12/01/2011)
15 NOTICE of Appearance by Samuel M. Matchett on behalf of Bass Pro Outdoor World, LLC, filed. (Matchett, Samuel) (Entered: 12/05/2011)
16 Unopposed MOTION to Reschedule Initial Case Management Conference and Deadline for Discovery Plan and Case Management Order by Bass Pro Outdoor World, LLC, filed. Motion Docket Date 1/11/2012. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 12/21/2011)
17 ORDER granting 16 Motion.(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 12/22/2011)
***Set/Reset Deadlines/Hearings: Initial Conference set for 2/13/2012 at 11:30 AM in Courtroom 3A Houston before Judge Keith P Ellison (sloewe) (Entered: 12/22/2011)
18 MOTION to Dismiss 1 Complaint by Bass Pro Outdoor World, LLC, filed. Motion Docket Date 1/26/2012. (Attachments: # 1 Brief, # 2 Proposed Order, # 3 Appendix, # 4 Exhibit A − Commissioner's Charge, # 5 Exhibit B − EEOC's Draft Discovery Plan, # 6 Exhibit C − EEOC v. Carolls, # 7 Exhibit D − EEOC v. Carolls, # 8 Exhibit E − EEOC v. Custom Cos., # 9 Exhibit F − EEOC v. Freeman, # 10 Exhibit G − EEOC v. JBS, # 11 Exhibit H − EEOC v. JBS, # 12 Exhibit I − EEOC v. O'Reilly Auto, # 13 Exhibit J − EEOC v. SDI, # 14 Exhibit K − EEOC v. Service Temps, # 15 Exhibit L − EEOC v. UPS, # 16 Exhibit M − Jackson v. FedEx, # 17 Exhibit N − Jenkins v. County of Hennepin, # 18 Exhibit O − Landovazo v. The Toro Co., # 19 Exhibit P − Probado Techs. v. Smartnet, # 20 Exhibit Q − Puente v. Ridge, # 21 Exhibit R − Restrepo v. Wells Fargo, # 22 Exhibit S − Richards v. JRK Prop., # 23 Exhibit T − Richards v. JRK Prop., # 24 Exhibit U − Rubinow v. Boehringer, # 25 Exhibit V − Turner v. Pavlicek)(Johnston, Michael) (Entered: 01/05/2012)
19 MOTION to Stay Discovery by Bass Pro Outdoor World, LLC, filed. Motion Docket Date 1/26/2012. (Attachments: # 1 Proposed Order, # 2 Appendix, # 3 Exhibit A −EEOC's Proposed Discovery Plan, # 4 Exhibit B − EEOC's Memo re: Admin. Subpoenas, # 5 Exhibit C − EEOC Investigations Pamphlet, # 6 Exhibit D − Letter from Juge, # 7 Exhibit E − Brown v. DFS, # 8 Exhibit F − EEOC v. Cintas, # 9 Exhibit G − EEOC v. UPS, # 10 Exhibit H − Fujita v. United States, # 11 Exhibit I − Jackson v. Louisiana Tech., # 12 Exhibit J. − Lowe v. Wellcare Health Plans, # 13 Exhibit K − Rio Grande v. Energy Transfer, # 14 Exhibit L − Sapp v. Mem'l Herman, # 15 Exhibit M − Smith v. Potter, # 16 Exhibit N − Tostado v. Citibank, # 17 Exhibit O − United States v. Columbia/HCA, # 18 Exhibit P − Von Drake v. NBC)(Johnston, Michael) (Entered: 01/05/2012)
20 CERTIFICATE OF INTERESTED PARTIES by Bass Pro Outdoor World, LLC, filed.(Johnston, Michael) (Entered: 01/06/2012)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 6 of 36

01/13/2012 01/13/2012 01/26/2012 01/26/2012 01/27/2012
01/30/2012 02/01/2012 02/06/2012 02/08/2012
02/09/2012 02/10/2012 03/05/2012
03/05/2012

21 Supplemental MOTION to Stay Discovery by Bass Pro Outdoor World, LLC, filed. Motion Docket Date 2/3/2012. (Attachments: # 1 Exhibit A − Letter from Batog to Johnston)(Johnston, Michael) (Entered: 01/13/2012)
22 NOTICE of Designation of Gregory T. Juge as Attorney−in−Charge by Equal Employment Opportunity Commission, filed. (Juge, Gregory) (Entered: 01/13/2012)
23 First AMENDED COMPLAINT with JURY DEMAND against Barr Pro, Inc., Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C. filed by Equal Employment Opportunity Commission.(Juge, Gregory) (Entered: 01/26/2012)
24 RESPONSE in Opposition to 19 MOTION to Stay Discovery, 21 Supplemental MOTION to Stay Discovery, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Sustaita, Rodolfo) (Entered: 01/26/2012)
25 MOTION for Entry of Order re: Defendant's Discovery Plan and Case Management Order by Bass Pro Outdoor World, LLC, filed. Motion Docket Date 2/17/2012. (Attachments: # 1 Proposed Order, # 2 Appendix, # 3 Exhibit A − Bass Pro's Plan, # 4 Exhibit B − EEOC's Plan, # 5 Exhibit C − Letter from Batog, # 6 D − Law Review Article, # 7 E − Aspen Tech v. Kunt, # 8 F − Roussell v. Brinker (2008), # 9 G − Roussell v. Brinker (2009), # 10 H − Serrano v. Cintas)(Johnston, Michael) (Entered: 01/27/2012)
26 ORDER denying as moot without prejudice 18 Motion to Dismiss.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, ) (Entered: 01/30/2012)
27 NOTICE of Setting. Parties notified. Initial Conference set for 3/1/2012 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe) (Entered: 02/01/2012)
28 ORDER dismissing without prejudice as moot 19 Motion to Stay.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, ) (Entered: 02/06/2012)
29 Unopposed MOTION for Extension of Time to Answer or Otherwise Respond to First Amended Complaint, Unopposed MOTION for Leave to File Excess Pages( Motion Docket Date 2/29/2012.), Unopposed MOTION to Set Briefing Schedule by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 02/08/2012)
30 NOTICE of Resetting. Parties notified. Initial Conference set for 4/17/2012 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe ) (Entered: 02/09/2012)
31 ORDER.(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 02/10/2012)
32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. Motion Docket Date 3/26/2012. (Attachments: # 1 Brief, # 2 Proposed Order, # 3 Appendix, # 4 Exhibit A − Commissioner's Charge, # 5 Exhibit B − Am. Commissioner's Charge, # 6 Exhibit C − EEOC Discovery Plan, # 7 Exhibit D − Eisenhour Declaration, # 8 Exhibit E − EEOC Budget)(Johnston, Michael) (Entered: 03/05/2012)
33 EXHIBITS re: 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Exhibit F − Akerblom v. Ezra, # 2 Exhibit G − Coleman v. Sentinel, # 3 Exhibit H − EEOC v. Am. Laser, # 4 Exhibit I − EEOC v. Carolls (2005), # 5 Exhibit J − EEOC v. Carolls (2011), # 6 Exhibit K − EEOC v. Cintas, # 7 Exhibit L − EEOC v. CRST, # 8 Exhibit M − EEOC v. Custom Cos., # 9 Exhibit N − EEOC v. Dover, # 10 Exhibit O − EEOC v. Evans Fruit, # 11 Exhibit P − EEOC V. Freeman, # 12 Exhibit Q − EEOC v. Global, # 13 Exhibit R − EEOC v. Hotspur, # 14 Exhibit S − EEOC v. JBS (8/11), # 15 Exhibit T − EEOC v. JBS (12/11), # 16 Exhibit U − EEOC v. O'Reilly, # 17 Exhibit V − EEOC v. Peoplemark, # 18 Exhibit W − EEOC V. Phil Vinas, # 19 Exhibit X − EEOC v. SDI, # 20 Exhibit Y − EEOC v. Service Temps, # 21 Exhibit Z − EEOC v. Tricore)(Johnston, Michael) (Entered: 03/05/2012)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 7 of 36

03/05/2012
03/05/2012 03/05/2012 03/05/2012 03/05/2012
03/06/2012 03/06/2012 03/19/2012 03/19/2012 03/19/2012

34 EXHIBITS re: 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Exhibit AA − EEOC V. Turtle Creek, # 2 Exhibit BB − EEOC v. Tuscarora, # 3 Exhibit CC − EEOC v. UPS, # 4 Exhibit DD− EEOC v. Wells Fargo, # 5 Exhibit EE − Franklin v. Burlington, # 6 Exhibit FF − Hartz v. Tulane, # 7 Exhibit GG − Hodczak v. Latrobe, # 8 Exhibit HH − Jenkins v. Hennepin, # 9 Exhibit II − Johnson v. Verizon, # 10 Exhibit JJ − Jurek v. Williams, # 11 Exhibit KK − Landavazo v. Toro, # 12 Exhibit LL − MacGregor v. Farmers, # 13 Exhibit MM − Oinonen v. TRX, # 14 Exhibit NN − Probado v. Smartnet, # 15 Exhibit OO − Puente v. Ridge, # 16 Exhibit PP − Reedy v. CITGO, # 17 Exhibit QQ − Restrepo v. Wells Fargo, # 18 Exhibit RR − Richards v. JRK Prop., # 19 Exhibit SS − Rubinow v. Boehringer, # 20 Exhibit TT − Scott v. Family Dollar, # 21 Exhibit UU − Shelton v. Bd. of Suprvs., # 22 Exhibit VV − Upshaw v. Bd. of Supvrs., # 23 Exhibit WW − Wilkens v. Toyotetsu)(Johnston, Michael) (Entered: 03/05/2012)
35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. Motion Docket Date 3/26/2012. (Attachments: # 1 Proposed Order, # 2 Exhibit A − Defs.' Mot. to Dismiss, # 3 Exhibit B − EEOC Discovery Plan, # 4 Exhibit C − Letter from Juge, # 5 Exhibit D − Letter from Batog, # 6 Exhibit E − Excerpt from Appl. to Enforce Subpoena, # 7 Exhibit F − EEOC Investigations)(Johnston, Michael) (Entered: 03/05/2012)
36 EXHIBITS re: 35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss by Bass Pro, Inc., Tracker Marine, L.L.C., filed.(Johnston, Michael) (Entered: 03/05/2012)
37 EXHIBITS re: 35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed.(Johnston, Michael) (Entered: 03/05/2012)
38 EXHIBITS re: 35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Exhibit H − Aspen v. Kunt, # 2 Exhibit I − Bodnar v. John Hancock, # 3 Exhibit J − Brown v. DFS, # 4 Exhibit K − EEOC v. Cintas, # 5 Exhibit L − EEOC v. UPS, # 6 Exhibit M − Fujita v. U.S., # 7 Exhibit N − Jackson v. Louisiana Tech, # 8 Exhibit O − Lowe v. Wellcare, # 9 Exhibit P − Rio Grande v. Energy Transfer, # 10 Exhibit Q − Roussell v. Brinker, # 11 Exhibit R − Sapp v. Mem'l Hermann, # 12 Exhibit S − Smith v. Potter, # 13 Exhibit T − Tostado v. Citibank, # 14 Exhibit U − Thompson v. Columbia, # 15 Exhibit V − Two Worlds Collide)(Johnston, Michael) (Entered: 03/05/2012)
39 Clerks Notice regarding CMECF notice returned undeliverable from ella.rivers@eeoc.gov on the account of Gregory T. Juge. The referenced email address has been deleted from your CM/ECF account, filed. (tferguson, ) (Entered: 03/06/2012)
40 NOTICE of Setting as to 35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss. Parties notified. Motion Hearing set for 4/5/2012 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. Parties may appear by telephone by calling in on the Court's Dia−In number at 713−250−5238. (sloewe) (Entered: 03/06/2012)
41 RESPONSE in Opposition to 35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order Proposed Order)(Sustaita, Rodolfo) (Entered: 03/19/2012)
42 EXHIBITS re: 41 Response in Opposition to Motion, by Equal Employment Opportunity Commission, filed.(Sustaita, Rodolfo) (Entered: 03/19/2012)
43 EXHIBITS re: 41 Response in Opposition to Motion, by Equal Employment Opportunity Commission, filed.(Sustaita, Rodolfo) (Entered: 03/19/2012)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 8 of 36

03/29/2012
04/03/2012 04/05/2012
04/05/2012
04/09/2012 04/10/2012 04/16/2012 04/16/2012 04/18/2012 04/19/2012 04/20/2012

44 REPLY in Support of 35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss, filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − Rowland Decl., # 3 Exhibit B − Tucker Decl., # 4 Exhibit C − Adams v. Brookshire, # 5 Exhibit D − Castrillon v. St. Vincent Hosp., # 6 Exhibit E − Gannon v. U.S., # 7 Exhibit F − Rio Grande Royalty v. Energy Transfer)(Johnston, Michael) (Entered: 03/29/2012)
45 RESPONSE in Opposition to 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc., filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix, # 2 Exhibit (A−T), # 3 Proposed Order)(Juge, Gregory) (Entered: 04/03/2012)
Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 4/5/2012 GRANTING IN PART 35 Renewed MOTION to Stay Discovery Pending Final Disposition of Defendants' Motion to Dismiss, The Discovery is STAYED temporarily until the Motion to Dismiss Hearing is held. The Hearing is set for 5/24/2012 at 11:00 a.m. The Court will determine at that hearing whether discovery will be stayed pending the ruling on the Motion to Dismiss. Appearances:(Law Clerk: Butler). Samuel M Matchett, Michael W Johnston, William Robert Burns, Robert D Rose, Gregory T. Juge.(Court Reporter: Butler), filed.(sloewe) (Entered: 04/05/2012)
46 NOTICE of Setting as to 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc.. Parties notified. Motion Hearing set for 5/24/2012 at 11:00 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. Parties may appear by telephone by calling in on the Court's Dial−In number at 713−250−5238. (sloewe) (Entered: 04/05/2012)
47 AO 435 TRANSCRIPT ORDER FORM by Lenora M Shealy. This is to order a transcript of Hearing on Motion to Stay held on 4/5/2012 before Judge Keith P Ellison (Original). Court Reporter/Transcriber: Kathy Metzger, filed. (dclark, ) (Entered: 04/09/2012)
48 AO 435 TRANSCRIPT ORDER FORM by James Sacher. This is to order a transcript of Hearing held on 4/5/2012 before Judge Keith P Ellison (Original), filed. (mmapps, ) (Entered: 04/10/2012)
49 Notice Regarding Initial Conference.(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 04/16/2012)
***Deadlines terminated. Initial Conference set for 4/17/2012 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison is VACATED. (sloewe) (Entered: 04/16/2012)
50 TRANSCRIPT re: Hearing held on 4/5/2012 before Judge Keith P Ellison. Court Reporter/Transcriber K. Metzger. Release of Transcript Restriction set for 7/17/2012, filed. (kmetzger) (Entered: 04/18/2012)
51 Notice of Filing of Official Transcript as to 50 Transcript. Party notified, filed. (dclark, ) (Entered: 04/19/2012)
52 REPLY in Support of 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc., filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − H.R. Rep. No. 102−40(I), # 3 Exhibit B − Excerpt from Systemic Task Force Rpt., # 4 Exhibit C − Excerpt from EEOC Guidelines, # 5 Exhibit D − Celestine v. Petroleos, # 6 Exhibit E − EEOC v. Custom Cos., # 7 Exhibit F − EEOC v. Freeman, # 8 Exhibit G − EEOC v. Propak, # 9 Exhibit H − EEOC v. Scrub, # 10 Exhibit I − EEOC v. Sterling, # 11 Exhibit J − Hagler v. True Mfg., # 12 Exhibit K − King v. Enterprise Leasing, # 13 Exhibit L − Maradiaga v. Intermodal, # 14 Exhibit M − Scott v. Family Dollar, # 15 Exhibit N − Southern Bleacher v. Husco, # 16 Exhibit O − United Galvanizing v. Imperial, # 17 Exhibit P − Upshaw v. Bd. of Supervisors)(Johnston, Michael) (Entered: 04/20/2012)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 9 of 36

05/22/2012 05/31/2012 06/08/2012 06/08/2012
06/11/2012 06/12/2012 06/21/2012 06/22/2012 06/27/2012 07/20/2012 07/25/2012
07/26/2012

***Deadlines terminated. Motion Hearing set for 5/24/2012 at 11:00 AM in Courtroom 3A Houston before Judge Keith P Ellison is CANCELLED. (sloewe) (Entered: 05/22/2012)
53 MEMORANDUM AND ORDER granting in part denying in part 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. (Signed by Judge Keith P Ellison) Parties notified.(arrivera, ) (Entered: 05/31/2012)
54 Ex Parte MOTION for Extension of Time to File Second Amended Complaint by Equal Employment Opportunity Commission, filed. Motion Docket Date 6/29/2012. (Attachments: # 1 Proposed Order)(Juge, Gregory) (Entered: 06/08/2012)
55 RESPONSE in Opposition to 54 Ex Parte MOTION for Extension of Time to File Second Amended Complaint, filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Attachments: # 1 Proposed Order, # 2 Exhibit A − E−mail from Juge, # 3 Exhibit B − EEOC v. Cintas, # 4 Exhibit C − EEOC v. Peoplemark, # 5 Exhibit D − EEOC v. Tricore, # 6 Exhibit E − EEOC v. Tuscarora, # 7 Exhibit F − EEOC v. Wells Fargo, # 8 Exhibit G − Scott v. Family Dollar)(Johnston, Michael) (Entered: 06/08/2012)
56 REPLY in Support of 54 Ex Parte MOTION for Extension of Time to File Second Amended Complaint, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A − Garcia v. Navasota)(Juge, Gregory) (Entered: 06/11/2012)
57 ORDER granting 54 Motion for Extension of Time to File Second Amended Complaint. Amended Pleadings due by 7/20/2012. Supplemental Briefing due by 8/3/2012. (Signed by Judge Keith P Ellison) Parties notified.(bthomas, ) (Entered: 06/13/2012)
58 Unopposed MOTION for Leave to File Excess Pages by Equal Employment Opportunity Commission, filed. Motion Docket Date 7/12/2012. (Attachments: # 1 Proposed Order)(Juge, Gregory) (Entered: 06/21/2012)
59 ORDER (Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 06/22/2012)
60 MOTION for Reconsideration of 53 Memorandum and Order by Equal Employment Opportunity Commission, filed. Motion Docket Date 7/18/2012. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2)(Juge, Gregory) (Entered: 06/27/2012)
61 Second AMENDED Complaint with Jury Demand against Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C. filed by Equal Employment Opportunity Commission.(Juge, Gregory) (Entered: 07/20/2012)
62 RESPONSE in Opposition to 60 MOTION for Reconsideration of 53 Memorandum and Order MOTION for Reconsideration of 53 Memorandum and Order, filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − EEOC Guidelines, # 3 Exhibit B − Excerpts from Systemic Task Force, # 4 Exhibit C − Systemic Harassment L. Rev., # 5 Exhibit D − Adams v. Brookshire, # 6 Exhibit E − Aspen Tech. v. Kunt, # 7 Exhibit F − Baldwin v. Layton, # 8 Exhibit G − Bender Square v. Factory Mut., # 9 Exhibit H − Chin v. Port Authority, # 10 Exhibit I − EEOC v. Freeman, # 11 Exhibit J − EEOC v. O'Reilly, # 12 Exhibit K − Brown v. Cypress Fairbanks, # 13 Exhibit L − Murthy v. Abbott Labs., # 14 Exhibit M − Reeb v. Ohio, # 15 Exhibit N − Roussell v. Brinker, # 16 Exhibit O − Smith v. U.S. Dep't of Navy, # 17 Exhibit P − United States v. Bratcher, # 18 Exhibit Q − United States v. Pasadena ISD, # 19 Exhibit R − Westerngeco v. ION, # 20 Exhibit S − White v. Am. Dental)(Johnston, Michael) (Entered: 07/25/2012)
63 MOTION for Extension of Time to File Response to EEOC's Second Amended Complaint( Motion Docket Date 8/16/2012.), MOTION for Leave to File Excess Pages by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Exhibit A − Email dated June 18, 2012 from G. Juge to M. Johnston, # 2 Exhibit B − Email dated July 25, 2012 from M. Johnston to G. Juge, # 3 Proposed Order)(Johnston, Michael) (Entered: 07/26/2012)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 10 of 36

07/27/2012 07/30/2012 07/31/2012 08/02/2012 08/02/2012 08/03/2012
08/07/2012 08/08/2012 08/08/2012 08/09/2012 08/24/2012

64 RESPONSE in Opposition to 63 MOTION for Extension of Time to File Response to EEOC's Second Amended Complaint MOTION for Leave to File Excess Pages, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 07/27/2012)
65 REPLY in Support of 63 MOTION for Extension of Time to File Response to EEOC's Second Amended Complaint MOTION for Leave to File Excess Pages, filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Johnston, Michael) (Entered: 07/30/2012)
66 ORDER DENYING 63 MOTION for Extension of Time to File Response to EEOC's Second Amended Complaint MOTION for Leave to File Excess Pages (Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 08/02/2012)
67 Unopposed MOTION for Extension of Time for Defendants to Answer or Otherwise Respond to Second Amended Complaint and Set Briefing Schedule( Motion Docket Date 8/23/2012.), Unopposed MOTION for Leave to File Excess Pages by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 08/02/2012)
69 ORDER granting 67 Motion for Extension of Time; granting 67 Motion for Leave to File Excess Pages( Answer due by 8/24/2012, Responses due by 9/28/2012.).(Signed by Judge Keith P Ellison) Parties notified.(sbyrum, ) (Entered: 08/06/2012)
68 Supplemental RESPONSE in Opposition to 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc., filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A: Custodian of Records Affidavit, # 2 Exhibit B: Attorney Declaration, # 3 Exhibit B1: BPI Company Records Report, # 4 Exhibit B2: Wilcher Declaration, # 5 Exhibit B3(a): Butzow Declaration, # 6 Exhibit B3(b): Quarles Declaration, # 7 Exhibit B3(c): Bloom Statement, # 8 Exhibit B3(d): Burton Statement, # 9 Exhibit B4: Business Report, # 10 Exhibit B5(a)−B5(c) Company Profiles, # 11 Exhibit B6: Business Report, # 12 Exhibit B7: Business Info. Report, # 13 Exhibit B8: Assumed Name Certificate, # 14 Exhibit B9: Ltd. Partnership Certificate, # 15 Exhibit B10: Change of Registered Agent Form, # 16 Exhibit B11: Franchise Tax Report, # 17 Exhibit B12: Certificate of Merger, # 18 Exhibit B13: Service of Process Transmittal, # 19 Exhibit B14: Jones Day Letter, # 20 Exhibit B15: Employment Forms, # 21 Exhibit B16: Website Printouts)(Wilhite, Connie) (Entered: 08/03/2012)
70 Corrected EXHIBITS re: 68 Response in Opposition to Motion,,,, by Equal Employment Opportunity Commission, filed.(Wilhite, Connie) (Entered: 08/07/2012)
71 Corrected EXHIBITS re: 68 Response in Opposition to Motion,,,, by Equal Employment Opportunity Commission, filed.(Wilhite, Connie) (Entered: 08/08/2012)
72 REPLY in Support of 60 MOTION for Reconsideration of 53 Memorandum and Order MOTION for Reconsideration of 53 Memorandum and Order, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Colindres v. Quietflex Mfg. (unpublished case))(Rose, Robert) (Entered: 08/08/2012)
73 Corrected EXHIBITS re: 68 Response in Opposition to Motion,,,, by Equal Employment Opportunity Commission, filed. (Attachments: # 1 Supplement Explanation Letter)(Wilhite, Connie) (Entered: 08/09/2012)
74 RESPONSE to 68 Response in Opposition to Motion,,,,, filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − Decl. of Tim Eisenhour (08/24/2012), # 3 Exhibit B − 21st Century Fin. Servs. v. Mandelbaum, # 4 Exhibit C − Adm'rs of Tulane Educ. Fund v. IPSEN, # 5 Exhibit D − Akerblom v. Ezra Holdings, # 6 Exhibit E − Driving Force Techs. v. Panda Distrib., # 7 Exhibit F − Duvall v. Lowe's Cos., # 8 Exhibit E − EEOC v. Cintas Corp., # 9 Exhibit H − EsNtion Records v. JonesTM, # 10 Exhibit I − Franklin v. Burlington N. & Santa Fe R.R., # 11 Exhibit J − Gartin v. Par Pharm. Cos., # 12 Exhibit K − Global 360 v. Spittin' Image Software, # 13 Exhibit L − Johnson v. Verizon Commc'ns, # 14 Exhibit M − Marine Geotechnics v. Williams, # 15 Exhibit N − Mikuni Corp. v. Foster, # 16 Exhibit O− Mohamed v. Erinys Int'l, # 17 Exhibit P − Op Art, Inc. v. B.I.G. Wholesalers, # 18 Exhibit Q − S.L.A. Studio Land v. SRC Constr., # 19 Exhibit R − Signtronix v. Gen. Sign, # 20 Exhibit S − Southern−Owners

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 11 of 36

08/24/2012 08/24/2012 08/24/2012
08/24/2012
09/04/2012 09/13/2012 09/13/2012 09/24/2012 09/28/2012

Ins. v. Tomac of Fla., # 21 Exhibit T − Thomas v. Trico Prods., # 22 Exhibit U − Torres v. Liberto Mfg., # 23 Exhibit V − U.S. LED, Ltd. v. Nu Power Assocs.)(Matchett, Samuel) (Entered: 08/24/2012)
75 Amended CERTIFICATE OF INTERESTED PARTIES by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed.(Matchett, Samuel) (Entered: 08/24/2012)
76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. Motion Docket Date 9/14/2012. (Attachments: # 1 Brief, # 2 Proposed Order, # 3 Exhibit A − MacKenzie Charge, # 4 Exhibit B − Blair Charge, # 5 Exhibit C − Harlingen 2012 EEO−1)(Johnston, Michael) (Entered: 08/24/2012)
77 APPENDIX re: 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Exhibit D − Barnes v. Fed. Express, # 2 Exhibit E − Barrientos v. City of Eagle Pass, # 3 Exhibit F − Bolden v. Walsh Constr., # 4 Exhibit G − Brown v. Bd. of Trs., # 5 Exhibit H − Bui v. Horseshoe Entm't, # 6 Exhibit I − Dark v. Potter, # 7 Exhibit J − DeHart v. Baker Hughes, # 8 Exhibit K − Earle v. Aramark, # 9 Exhibit L − EEOC v. Andrew Corp., # 10 Exhibit M − EEOC v. Cintas, # 11 Exhibit N − EEOC v. Hobson Air, # 12 Exhibit O − EEOC v. Hotspur, # 13 Exhibit P − EEOC v. JBS, # 14 Exhibit Q − EEOC v. O'Reilly Auto, # 15 Exhibit R − EEOC v. P.A.M. Transp., # 16 Exhibit S − EEOC v. Peoplemark, # 17 Exhibit T − EEOC v. Port Auth., # 18 Exhibit U − EEOC v. River View, # 19 Exhibit V − EEOC v. Texas Roadhouse, # 20 Exhibit W − EEOC v. Tricore, # 21 Exhibit X − EEOC v. Turtle Creek, # 22 Exhibit Y − EEOC v. Tuscarora Yarns, # 23 Exhibit Z − EEOC v. UPS)(Johnston, Michael) (Entered: 08/24/2012)
78 APPENDIX re: 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. (Attachments: # 1 Exhibit AA − EEOC v. UPS, # 2 Exhibit BB − EEOC v. Wells Fargo, # 3 Exhibit CC − Gaalla v. Brown, # 4 Exhibit DD − Gauthier v. Horace Mann, # 5 Exhibit EE − Grice v. FMC Techs., # 6 Exhibit FF − Griffin v. Citgo, # 7 Exhibit GG − Hall v. Kone, # 8 Exhibit HH − Jefferson v. MillerCoors, # 9 Exhibit II − Kelley v. KIMC, # 10 Exhibit JJ − Knatt v. Hosp. Serv., # 11 Exhibit KK − Mercer v. Arbor E&T, # 12 Exhibit LL − Mitchell v. Cresent River, # 13 Exhibit MM − Montgomer v. Sears, # 14 Exhibit NN − Muse v. Jazz Casino, # 15 Exhibit OO − Puente v. Ridge, # 16 Exhibit PP − Rice v. Spinx Co., # 17 Exhibit QQ − Sabzevari v. Reliable Ins., # 18 Exhibit RR − Scott v. Family Dollar, # 19 Exhibit SS − Sherman v. Dallas ISD, # 20 Exhibit TT − Shollenbarger v. Planes Moving, # 21 Exhibit UU − State of Ariz. v. Geo, # 22 Exhibit VV − Wallace v. Neiman Marcus)(Johnston, Michael) (Entered: 08/24/2012)
79 Supplemental RESPONSE in Opposition to 32 MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 23 Amended Complaint/Counterclaim/Crossclaim etc., filed by Equal Employment Opportunity Commission. (Wilhite, Connie) (Entered: 09/04/2012)
80 Opposed MOTION for Leave to File Surreply by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C., filed. Motion Docket Date 10/4/2012. (Attachments: # 1 Proposed Order, # 2 Exhibit A − Surreply, # 3 Exhibit 1 − E−mails, # 4 Unreported Cases)(Johnston, Michael) (Entered: 09/13/2012)
81 ORDER granting 80 Motion for Leave to File.(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 09/13/2012)
82 SURREPLY to 79 and 80 Opposed MOTION for Leave to File Surreply, filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Attachments: # 1 Exhibit 1 − E−mails, # 2 Unreported Cases)(Johnston, Michael) Modified on 9/24/2012 (sloewe). (Entered: 09/24/2012)
83 RESPONSE in Opposition to 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc., filed by Equal Employment Opportunity

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 12 of 36

10/02/2012
10/03/2012 10/03/2012
10/04/2012 10/09/2012
10/15/2012 10/16/2012 10/17/2012 10/19/2012 10/19/2012 10/22/2012
10/23/2012

Commission. (Attachments: # 1 Appendix Table of Exhibits, # 2 Exhibit A, # 3 Exhibit B−Z (unpublished cases), # 4 Proposed Order)(Juge, Gregory) (Entered: 09/28/2012)
84 NOTICE of Setting as to 77 Appendix,,,, 79 Response in Opposition to Motion, 83 Response in Opposition to Motion, 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc., 82 Surreply to Motion, 78 Appendix,,,,. Parties notified. Motion Hearing set for 10/15/2012 at 10:30 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe) (Entered: 10/02/2012)
85 Unopposed MOTION for Continuance of Hearing Set for October 15, 2012 by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/24/2012. (Attachments: # 1 Proposed Order)(Juge, Gregory) (Entered: 10/03/2012)
86 NOTICE of Setting as to 77 Appendix,,,, 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc., 82 Surreply to Motion, 79 Response in Opposition to Motion, 83 Response in Opposition to Motion, 78 Appendix, 60 Motion for Reconsideration,,,. Parties notified. Motion Hearing set for 10/22/2012 at 10:30 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe) Modified on 10/4/2012 (bthomas, ). (Entered: 10/03/2012)
87 ORDER SETTING HEARING. Motion−related deadline set re: 60 MOTION for Reconsideration of 53 Memorandum and Order. Motion Hearing set for 10/22/2012 at 10:30 AM in Courtroom 3A before Judge Keith P Ellison. (Signed by Judge Keith P Ellison). The parties may appear by telephone by calling the Court's dial−in number at 713−250−5238. Parties notified.(bthomas) (Entered: 10/04/2012)
88 REPLY in Support of 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc., filed by Bass Pro Outdoor World, LLC, Bass Pro, Inc., Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 A − Apsley v. Boeing Co., # 3 B − Barrientos v. City of Eagle Pass, # 4 C − Bolden v. Walsh Constr., # 5 D − EEOC v. Carolls Corp., # 6 E − EEOC v. Hotspur Resorts, # 7 F − EEOC v. O'Reilly Auto., # 8 G − EEOC v. Texas Roadhouse, # 9 H − EEOC v. Turtle Creek, # 10 I − EEOC v. UPS, # 11 J − Gaalla v. Brown, # 12 K − Knatt v. Hosp. Serv., # 13 L − Mercer v. Arbor E&T)(Johnston, Michael) (Entered: 10/09/2012)
89 MOTION for Tanya L. Goldman to Appear Pro Hac Vice by Equal Employment Opportunity Commission, filed. Motion Docket Date 11/5/2012. (Bowne, Timothy) (Entered: 10/15/2012)
91 ORDER granting 89 Motion to Appear Pro Hac Vice Tanya Goldman.(Signed by Judge Keith P Ellison) Parties notified.(bthomas) (Entered: 10/18/2012)
90 Agreed MOTION for Leave to File Sur−reply in Opposition to Defendants' Motion to Dismiss Second Amended Complaint by Equal Employment Opportunity Commission, filed. Motion Docket Date 11/7/2012. (Attachments: # 1 Proposed Order, # 2 Sur−reply)(Juge, Gregory) (Entered: 10/17/2012)
92 ORDER granting 90 Motion for Leave to File a Sur−Reply.(Signed by Judge Keith P Ellison) Parties notified.(bthomas) (Entered: 10/19/2012)
93 SURREPLY to 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc., filed by Equal Employment Opportunity Commission. (bthomas) (Entered: 10/19/2012)
94 Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 10/22/2012. Motion to Reconsider 60 is denied. Matter taken under advisement. Exhibits admitted. Appearances:Jona McCormick. Samuel M Matchett, Michael W Johnston, Konrad Batog, Gregory T. Juge.(Court Reporter: J. Sanchez), filed.(bthomas). (Additional attachment(s) added on 10/22/2012: # 1 Defendant's Exh. 1) (bthomas, ). (Entered: 10/22/2012)
95 MEMORANDUM AND ORDER (Signed by Judge Keith P Ellison) Parties notified.(sloewe) Modified on 10/29/2012 (sloewe). (Entered: 10/23/2012)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 13 of 36

10/25/2012 12/20/2012 12/21/2012 03/18/2013 03/25/2013 03/25/2013 03/27/2013 03/28/2013
04/15/2013 04/17/2013 04/19/2013
04/22/2013 04/22/2013

96 SURREPLY to 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc., filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Appleberry v. Fort Worth ISD)(Johnston, Michael) (Entered: 10/25/2012)
97 APPEAL TRANSCRIPT re Motion to Reconsider held on October 22, 2012 before Judge Keith P Ellison. Court Reporter J. Sanchez. Release of Transcript Restriction set for 3/20/2013., filed. (jsanchez, ) (Entered: 12/20/2012)
98 Notice of Filing of Official Transcript as to 97 Transcript − Appeal. Party notified, filed. (ltien, ) (Entered: 12/21/2012)
99 MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART 76 MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Dismiss 61 Amended Complaint/Counterclaim/Crossclaim etc. (Signed by Judge Keith P Ellison) Parties notified.(sloewe ) (Entered: 03/18/2013)
100 NOTICE of Appearance by Carolyn Cain Burch on behalf of Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed. (Burch, Carolyn) (Entered: 03/25/2013)
101 Joint MOTION for Extension of Time to Amend Complaint and File Answer by Bass Pro Outdoor World, LLC, Equal Employment Opportunity Commission, Tracker Marine, L.L.C., filed. Motion Docket Date 4/15/2013. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 03/25/2013)
102 NOTICE of Setting. Parties notified. Initial Conference set for 5/2/2013 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe) (Entered: 03/27/2013)
103 ORDER Extending Time to Answer granting 101 Motion for Extension of Time. The deadline by which Plaintiff may amend its Complaint with regard to the retaliation claims of Laura Tarr and Denise Marstall is extended to and includes April 15, 2013. The deadline by which Defendants must answer Plaintiff's Second Amended Complaint is extended to and includes May 1, 2013. Further, should Plaintiff file a Third Amended Complaint on or before April 15, 2013, Defendants are relieved from answering Plaintiff's Second Amended Complaint and must answer or otherwise respond to Plaintiff's Third Amended Complaint on or before May 15, 2013. (Signed by Judge Keith P Ellison) Parties notified.(gkelner, ) (Entered: 03/29/2013)
104 Third AMENDED COMPLAINT with Jury Demand against Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C. filed by Equal Employment Opportunity Commission.(Goldman, Tanya) (Entered: 04/15/2013)
105 MOTION for Protective Order by Equal Employment Opportunity Commission, filed. Motion Docket Date 5/8/2013. (Attachments: # 1 Proposed Order)(Juge, Gregory) (Entered: 04/17/2013)
106 RESPONSE in Opposition to 105 MOTION for Protective Order, filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − E−mail chain between Johnston and Juge, # 3 Exhibit B − July 15, 2011 Hrg. Tr. (11−MC−190), # 4 Exhibit C − Doc. 32 − Response (11−MC−190, # 5 Exhibit 1 − Ariz. ex. rel. Goddard v. GEO, # 6 Exhibit 2 − EEOC v. Carolls, # 7 Exhibit 3 − EEOC v. Dillard's, # 8 Exhibit 4 − EEOC v. High Speed Enter., # 9 Exhibit 5 − EEOC v. Lifecare Mgmt., # 10 Exhibit 6 − EEOC v. Mach Mining, # 11 Exhibit 7 − EEOC v. Nordstrom, # 12 Exhibit 8 − EEOC v. O'Reilly Automotive, # 13 Exhibit 9 − EEOC v. Philip Servs., # 14 Exhibit 10 − EEOC v. Swissport)(Johnston, Michael) (Entered: 04/19/2013)
107 Letter Concerning May 2, 2013, Initial Conference by Equal Employment Opportunity Commission, filed.(Juge, Gregory) (Entered: 04/22/2013)
108 MOTION to Stay Discovery Pending Ruling on Motion for Summary Judgment, MOTION for Continuance of May 2, 2013 Scheduling Conference( Motion Docket Date 5/13/2013.) by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed. (Attachments: # 1 Proposed Order, # 2 Appendix, # 3 Exhibit A − Proposed MSJ Filed Under Seal, # 4 Exhibit B − 01/19/12 Letter from EEOC, # 5 Exhibit C − Excerpt from EEOC Congressional Budget, # 6 Exhibit D − Rowland Declaration, # 7 Exhibit E −

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 14 of 36

04/22/2013 04/24/2013 04/24/2013 04/25/2013 04/25/2013 04/29/2013 05/01/2013
05/02/2013 05/07/2013
05/07/2013 05/14/2013

EEOC's Proposed Discovery Plan, # 8 Exhibit F − E−mail chain between Juge and Johnston, # 9 Exhibit G − Excerpt from 10/22/12 Hearing Tr., # 10 Exhibit H − Excerpt from 7/15/11 Hearing Tr., # 11 Exhibit I − Tucker Declaration, # 12 Case Law)(Johnston, Michael) (Entered: 04/22/2013)
109 Sealed Event, filed. (Entered: 04/22/2013)
110 NOTICE of Setting as to 108 MOTION to Stay Discovery Pending Ruling on Motion for Summary Judgment MOTION for Continuance of May 2, 2013 Scheduling Conference, 105 MOTION for Protective Order. Parties notified. Motion Hearing set for 4/29/2013 at 11:00 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe) (Entered: 04/24/2013)
111 MOTION to Cancel or Postpone April 29, 2013, Hearing, and Initial Response in Opposition to ECF No. 108 by Equal Employment Opportunity Commission, filed. Motion Docket Date 5/15/2013. (Juge, Gregory) (Entered: 04/24/2013)
112 RESPONSE to 111 MOTION to Cancel or Postpone April 29, 2013, Hearing, and Initial Response in Opposition to ECF No. 108, filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Johnston, Michael) (Entered: 04/25/2013)
113 ORDER on 111 MOTION to Cancel or Postpone April 29, 2013. Hearing on Doc. # 108 and # 111 set for 5/14/2013 at 10:30 AM in Courtroom 3A Houston before Judge Keith P Ellison. Initial Conference set for 5/2/2013 at 02:30 PM is cancelled. Motion Hearing set for 4/29/2013 at 11:00 AM is cancelled.(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 04/25/2013)
114 REPLY to Response to 105 MOTION for Protective Order, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 04/29/2013)
115 Cross MOTION to Strike 109 Sealed Event, 108 MOTION to Stay Discovery Pending Ruling on Motion for Summary Judgment MOTION for Continuance of May 2, 2013 Scheduling Conference and RESPONSE in OPPOSITION to MOTION to Stay Discovery [ECF No. 108] by Equal Employment Opportunity Commission, filed. Motion Docket Date 5/22/2013. (Attachments: # 1 Appendix of Cited Cases)(Batog, Konrad) (Entered: 05/01/2013)
116 MOTION FOR ORDER REGARDING SEQUENCE OF FUTURE MOTIONS CONCERNING INVESTIGATION AND CONCILIATION (with Proposed Order) by Equal Employment Opportunity Commission, filed. Motion Docket Date 5/23/2013. (Juge, Gregory) (Entered: 05/02/2013)
117 REPLY in Support of 108 MOTION to Stay Discovery Pending Ruling on Motion for Summary Judgment MOTION for Continuance of May 2, 2013 Scheduling Conference, filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − Letter from Batog, # 3 Exhibit 1 − Bracey v. Harlow, # 4 Exhibit 2 − EEOC v. Dillards, # 5 Exhibit 3 − Gandler v. Nazarov, # 6 Exhibit 4 − Hartnett v. Papa John's Pizza, # 7 Exhibit 5 − Paluch v. Dawson)(Johnston, Michael) (Entered: 05/07/2013)
118 RESPONSE in Opposition, filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − Letter from Batog, # 3 Exhibit 1 − Bracey v. Harlow, # 4 Exhibit 2 − EEOC v. Dillards, # 5 Exhibit 3 − Gandler v. Nazarov, # 6 Exhibit 4 − Hartnett v. Papa John's Pizza, # 7 Exhibit 5 − Paluch v. Dawson)(Johnston, Michael) (Entered: 05/07/2013)
Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 5/14/2013. DENYING 105 MOTION for Protective Order by Equal Employment Opportunity Commission, filed. Motion Docket Date 5/8/2013, 108 GRANTING IN PART AND DENYING IN PART MOTION to Stay Discovery Pending Ruling on Motion for Summary Judgment, MOTION for Continuance of May 2, 2013 Scheduling Conference, Parties should conduct discovery on concilation. DENYING 115 Cross MOTION to Strike 109 Sealed EventTERMINATING AS MOOT 116 MOTION FOR ORDER REGARDING SEQUENCE OF FUTURE MOTIONS CONCERNING INVESTIGATION AND CONCILIATION. With Regard to Doc. 108 Plaintiffs should prepare a proposed case management plan and submit to Defendants. Appearances:(Law Clerk: Nila Bala) Jim Sacher. Michael W Johnston,

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 15 of 36

05/15/2013
05/15/2013
05/15/2013 05/16/2013 05/17/2013 05/24/2013 05/24/2013 05/28/2013 05/29/2013 05/30/2013 05/31/2013 06/04/2013

Robert D Rose, Gregory T. Juge.(Court Reporter: Slavin), filed.(sloewe) (Entered: 05/14/2013)
119 MOTION for Summary Judgment by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed. Motion Docket Date 6/5/2013. (Attachments: # 1 Brief, # 2 Statement of Undisputed Material Facts, # 3 Appendix, # 4 Exhibit 1 − Commissioner's Charge, # 5 Exhibit 2 − Am. Commissioner's Charge, # 6 Exhibit 3 − White Decl., # 7 Exhibit 3 − Appendix to White Decl., # 8 Exhibit 3A − 04−02−10 Letter, # 9 Exhibit 3B − 04−23−10 Letter, # 10 Exhibit 3C − 04−26−10 Letter, # 11 Exhibit 3D − 04−29−10 Letter, # 12 Exhibit 3E − 04−30−10 Letter, # 13 Exhibit 3F − 05−03−10 Letter, # 14 Exhibit 3G − 05−05−10 Letter, # 15 Exhibit 3H − 05−14−10 Letter, # 16 Exhibit 3I − 05−20−10 Letter, # 17 Exhibit 3J − 06−03−10 Letter, # 18 Exhibit 3K − 06−21−10 Letter, # 19 Exhibit 3L − 07−08−10 Letter, # 20 Exhibit 3M − 08−19−10 Letter, # 21 Exhibit 3N − 08−20−10 Letter, # 22 Exhibit 3O − 08−26−10 Letter, # 23 Exhibit 3P − 08−31−10 Letter, # 24 Exhibit 3Q − 09−02−10 Letter)(Johnston, Michael) (Entered: 05/15/2013)
120 EXHIBITS re: 119 MOTION for Summary Judgment by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed. (Attachments: # 1 Exhibit 3S − 11−01−10 Letter, # 2 Exhibit 3T − 11−16−10 Letter, # 3 Exhibit 3U − 11−19−10 Letter, # 4 Exhibit 3V − 12−02−10 Letter, # 5 Exhibit 3W − 12−09−10 Letter, # 6 Exhibit 3X − 12−14−10 Letter, # 7 Exhibit 3Y − 01−14−11 Letter, # 8 Exhibit 3Z − 04−06−11 Letter, # 9 Exhibit 3AA − 04−27−11 Letter, # 10 Exhibit 4 − 03−02−11 Letter, # 11 Exhibit 5 − 03−25−11 Letter, # 12 Exhibit 6 − 04−25−11 Letter, # 13 Exhibit 7 − 06−07−11 Letter, # 14 Exhibit 8 − Case Decl., # 15 Exhibit 9 − Rowland Decl., # 16 Exhibit 10 − Johnson Decl., # 17 Exhibit 11 − 11−18−09 Letter, # 18 Appendix to Case Law, # 19 Case Law)(Johnston, Michael) (Entered: 05/15/2013)
121 ANSWER to 104 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed.(Johnston, Michael) (Entered: 05/15/2013)
122 MOTION to Seal Specific Exhibits to Defs.' Motion for Summary Judgment (Doc. Nos. 120−14 and 120−16) by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed. Motion Docket Date 6/6/2013. (Attachments: # 1 Proposed Order, # 2 Exhibit 8 − Case Decl. (replacement), # 3 Exhibit 10 − Johnson Decl. (replacement))(Johnston, Michael) (Entered: 05/16/2013)
123 ORDER granting 122 Motion to Seal.(Signed by Judge Keith P Ellison) Parties notified.(kpicota, ) (Entered: 05/17/2013)
124 AO 435 TRANSCRIPT ORDER FORM by Timothy Bowne for Pltf. This is to order a transcript of Motion Hearing held on 5/14/2013 before Judge Keith P Ellison (original). Court Reporter/Transcriber: B. Slavin, filed. (pyebernetsky, ) (Entered: 05/24/2013)
125 DKT−13 TRANSCRIPT ORDER FORM by Lenora Shealy. This is to order a transcript of the Motion Hearing held on May 14, 2013 before Judge Keith Ellison (original). Court Reporter/Transcriber: Bruce Slavin. This order form relates to the following:, filed.(sroque, ) (Entered: 05/24/2013)
126 TRANSCRIPT re: Motions Hearing held on 5−14−13 before Judge Keith P Ellison. Court Reporter/Transcriber B. Slavin. Release of Transcript Restriction set for 8/26/2013., filed. (bslavin, ) (Entered: 05/28/2013)
127 Notice of Filing of Official Transcript as to 126 Transcript. Party notified, filed. (dhansen, ) (Entered: 05/29/2013)
128 MOTION for Extension of Time to Oppose Defendants' Motion for Summary Judgment by Equal Employment Opportunity Commission, filed. Motion Docket Date 6/20/2013. (Juge, Gregory) (Entered: 05/30/2013)
129 ORDER for Expedited Responses and Order setting Telephone Conference set for 6/5/2013 at 10:30 AM Courtroom 3A Houston before Judge Keith P Ellison(Signed by Judge Keith P Ellison) Parties notified.(sloewe) (Entered: 05/31/2013)
130 RESPONSE in Opposition to 128 MOTION for Extension of Time to Oppose Defendants' Motion for Summary Judgment, filed by Bass Pro Outdoor World, LLC,

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 16 of 36

06/05/2013
06/17/2013 06/18/2013 07/12/2013 07/12/2013 07/16/2013 07/17/2013
07/17/2013 07/19/2013
07/24/2013

Tracker Marine, L.L.C.. (Attachments: # 1 Exhibit Ex. A − Timeline, # 2 Exhibit Ex. B − Excerpts from 05/14/13 Hr'g Tr., # 3 Exhibit Ex. C − E−mails between Juge and Johnston, # 4 Exhibit Ex. D − 05/30/13 Notice of Electronic Filing)(Johnston, Michael) (Entered: 06/04/2013)
Minute Entry for proceedings held before Judge Keith P Ellison. TELEPHONE CONFERENCE held on 6/5/2013 granting 128 MOTION for Extension of Time to Oppose Defendants' Motion for Summary Judgment. Arguments made on the record. EEOC will have 4 weeks to determine if additional discovery is necessary. If it is needed, plaintiff will receive an additional 6 weeks to complete discovery and to file summary judgment. If the EEOC determines no discovery is necessary, 2 additional weeks after the inital 4 weeks will be provided to file the summary judgment. Appearances:(Law Clerk: Nila Bala)Benjamin Berman, Rebecca Moore, Scott Mario. Michael W Johnston, Samuel M Matchett, Gregory T. Juge, Robert D Rose.(Court Reporter: M. Malone)(glyons) (Entered: 06/05/2013)
131 TRANSCRIPT re: Status Conference held on June 5, 2013 before Judge Keith P Ellison. Court Reporter/Transcriber Mayra Malone. Release of Transcript Restriction set for 9/16/2013., filed. (mmalone, ) (Entered: 06/17/2013)
132 Notice of Filing of Official Transcript as to 131 Transcript. Party notified, filed. (dhansen, ) (Entered: 06/18/2013)
133 Agreed MOTION For Leave to File a 35 Page Opposition Brief in Response to Defendants' Summary Judgment Motion by Equal Employment Opportunity Commission, filed. Motion Docket Date 8/2/2013. (Attachments: # 1 Proposed Order)(Rose, Robert) (Entered: 07/12/2013)
134 ORDER granting 133 Motion for Leave to File Additional Pages.(Signed by Judge Keith P Ellison) Parties notified.(kpicota) (Entered: 07/12/2013)
135 MOTION to Amend 104 Amended Complaint/Counterclaim/Crossclaim etc. by Equal Employment Opportunity Commission, filed. Motion Docket Date 8/6/2013. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Appendix of Cases, # 8 Proposed Order)(Batog, Konrad) (Entered: 07/16/2013)
136 RESPONSE in Opposition to 119 MOTION for Summary Judgment, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Response to Defendants' Statement of Undisputed Facts, # 2 Appendix, # 3 Exhibit 1 (Damiani Declaration), # 4 Exhibit 1−A (Attachment to Damiani Declaration), # 5 Exhibit 1−B (Attachment to Damiani Declaration), # 6 Exhibit 1−C (Attachment to Damiani Declaration), # 7 Exhibit 2 (Ebel Declaration), # 8 Exhibit 3 (Hrg Transcript), # 9 Exhibit 4 (Slip Opinion), # 10 Exhibit 5 (EEOC Conciliation data), # 11 Exhibit 6 (EEOC Litigation data), # 12 Exhibit 7 (Unpublished Cases))(Goldman, Tanya) (Entered: 07/17/2013)
137 MOTION for Partial Summary Judgment That Condition Precedent of Conciliation Is Satisfied by Equal Employment Opportunity Commission, filed. Motion Docket Date 8/7/2013. (Attachments: # 1 Appendix of Authorities, # 2 Proposed Order)(Juge, Gregory) (Entered: 07/17/2013)
138 RESPONSE in Opposition to 135 MOTION to Amend 104 Amended Complaint/Counterclaim/Crossclaim etc., filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Exhibit A − 2012 Emails between Johnston and Juge, # 2 Exhibit B − Eisenhour Declaration, # 3 Exhibit C − June 2013 E−mails between Johnston and Juge, # 4 Exhibit D − White Declaration, # 5 Exhibit E − Excerpt from 5/14/13 Hr'g Tr., # 6 Exhibit F − 7/02/13 Letter from Juge)(Johnston, Michael) (Entered: 07/19/2013)
139 Unopposed MOTION for Extension of Time for Defendants to file Defendants' Reply in Support of Defendants' Motion for Summary Judgment and Defendants' Response to Plaintiff's Motion for Partial Summary Judgment, and for Plaintiff to file its Reply in Support of its Motion for Partial Summary Judgment( Motion Docket Date 8/14/2013.), Unopposed MOTION for Leave to File Excess Pages by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 07/24/2013)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 17 of 36

07/25/2013
07/29/2013 08/09/2013
08/14/2013 08/26/2013 08/28/2013 09/19/2013
10/01/2013 10/01/2013 10/02/2013 10/21/2013 11/19/2013 03/04/2014

140 ORDER granting 139 Motion for Extension of Time and Motion for Leave to File Excess Pages( Defendants' replies in support of Defendants' Motion for Summry Judgment is due by 8/9/2013. Defendants' responses to Motion for Partial Summary Judgment is due by 8/14/2013., Plaintiff's reply in support of its Motion for Partial Summary Judgment is due by 8/26/2013.).(Signed by Judge Keith P Ellison) Parties notified.(glyons) (Entered: 07/25/2013)
141 REPLY in Support of 135 MOTION to Amend 104 Amended Complaint/Counterclaim/Crossclaim etc., filed by Equal Employment Opportunity Commission. (Batog, Konrad) (Entered: 07/29/2013)
142 REPLY in Support of 119 MOTION for Summary Judgment, filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − White Supp'l Decl., # 3 Exhibit B − EEOC Compliance Manual Excerpts, # 4 Exhibit C − Select Docs. re Gates, # 5 Exhibit D − Select Applications, # 6 Exhibit E − Blair Dismissal and Notice of Rights, # 7 Exhibit F − May 14, 2013 Hearing Excerpt, # 8 Exhibit G − Case law and Codes)(Johnston, Michael) (Entered: 08/09/2013)
143 RESPONSE in Opposition to 137 MOTION for Partial Summary Judgment That Condition Precedent of Conciliation Is Satisfied, filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Appendix, # 2 Exhibit A − EEOC v. Mach Mining, # 3 Exhibit B − Dictionary Pages)(Johnston, Michael) (Entered: 08/14/2013)
144 REPLY to Response to 137 MOTION for Partial Summary Judgment That Condition Precedent of Conciliation Is Satisfied, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 08/26/2013)
145 Request for Oral Argument on Defendants' Motion for Summary Judgment by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed.(Johnston, Michael) (Entered: 08/28/2013)
146 NOTICE of Setting as to 137 MOTION for Partial Summary Judgment That Condition Precedent of Conciliation Is Satisfied, 145 Document, 135 MOTION to Amend 104 Amended Complaint/Counterclaim/Crossclaim etc., 119 MOTION for Summary Judgment. Parties notified. Motion Hearing set for 10/8/2013 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 09/19/2013)
147 Agreed MOTION to Stay Litigation and Continue October 8, 2013, Hearing in Light of Government Shutdown, With Request for Expedited Consideration by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/22/2013. (Juge, Gregory) (Entered: 10/01/2013)
148 ORDER granting 147 Agreed MOTION to Stay Litigation and Continue October 8, 2013, Hearing in Light of Government Shutdown.(Signed by Judge Keith P Ellison) Parties notified.(gkelner, 4) (Entered: 10/01/2013)
149 MEMORANDUM AND ORDER DENYING 137 MOTION for Partial Summary Judgment That Condition Precedent of Conciliation Is Satisfied (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) (Entered: 10/02/2013)
150 NOTICE of Setting as to 119 MOTION for Summary Judgment. Parties notified. Motion Hearing set for 11/19/2013 at 01:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 10/21/2013)
Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 11/19/2013. This matter has been taken under advisement. Appearances:(Law Clerk: Bailey Heaps).(Court Reporter: Sanchez), filed.(sloewe, 4) (Entered: 12/03/2013)
151 MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART 119 MOTION for Summary Judgment, GRANTING 135 MOTION to Amend 104 Amended Complaint/Counterclaim/Crossclaim etc. The case is STAYED for 30 days.(Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) (Entered: 03/04/2014)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 18 of 36

03/04/2014 03/17/2014 03/18/2014 04/08/2014
04/08/2014
05/08/2014 05/09/2014 05/30/2014 06/02/2014 06/02/2014 06/02/2014 06/02/2014 06/02/2014 06/04/2014
06/05/2014
06/05/2014
06/05/2014

152 NOTICE of Setting. Parties notified. Status Conference set for 4/16/2014 at 02:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 03/04/2014)
153 Unopposed MOTION to Reset Status Conference by Equal Employment Opportunity Commission, filed. Motion Docket Date 4/7/2014. (Juge, Gregory) (Entered: 03/17/2014)
154 NOTICE of Resetting as to 152 Notice of Setting (FORM, noticing) − Judge Ellison. Parties notified. Status Conference set for 4/29/2014 at 11:30 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 03/18/2014)
155 Unopposed MOTION for Extension of Time of Stay for Conciliation by 30 Days, Unopposed MOTION to Reset Status Conference( Motion Docket Date 4/29/2014.) by Equal Employment Opportunity Commission, filed. (Juge, Gregory) (Entered: 04/08/2014)
156 ORDER granting 155 Unopposed Motion for Extension of Time of Stay, Unopposed Motion to Reset Status Conference. The Status Conference previously set for April 29, 2014 is Postponed and Reset for 6/4/2014 at 11:00 AM in Courtroom 3A Houston before Judge Keith P Ellison).(Signed by Judge Keith P Ellison) Parties notified.(rsmith, 4) (Entered: 04/08/2014)
157 TRANSCRIPT re: Hearing held on November 19, 2013 before Judge Keith P Ellison. Court Reporter J. Sanchez. Ordering Party Gregory Juge Release of Transcript Restriction set for 8/6/2014., filed. (jsanchez, ) (Entered: 05/08/2014)
158 Notice of Filing of Official Transcript as to 157 Transcript. Party notified, filed. (hcarr, 4) (Entered: 05/09/2014)
159 MOTION to Seal Renewed Motion for Summary Judgment by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 6/20/2014. (Johnston, Michael) (Entered: 05/30/2014)
160 Defendants' Renewed Motion for Summary Judgment, filed. Modified on 6/20/2014 (sloewe, 4). (Entered: 06/03/2014)
161 Defendants' Memorandum of Law in Support of Renewed Motion for Summary Judgment, filed. Modified on 6/20/2014 (sloewe, 4). (Entered: 06/03/2014)
162 Appendix to Defendants' Memorandum of Law in Support of Renewed Motion for Summary Judgment, filed. Modified on 6/20/2014 (sloewe, 4). (Entered: 06/03/2014)
163 Table of Unreported Cases, filed. Modified on 6/20/2014 (sloewe, 4). (Entered: 06/03/2014)
164 Declaration of Michael W. Johnston, filed. Modified on 6/20/2014 (sloewe, 4). (Entered: 06/03/2014)
Minute Entry for proceedings held before Judge Keith P Ellison. STATUS CONFERENCE held on 6/4/2014. This matter is under advisement. Appearances:(Law Clerk: Bailey Heaps). Michael W Johnston, William Robert Burns, Samuel M Matchett, Gregory T. Juge, Connie Kay Wilhite, Robert D Rose.(Court Reporter: Bruce Slavin), filed.(sloewe, 4) (Entered: 06/04/2014)
165 AO 435 TRANSCRIPT ORDER FORM by Gregory T. Juge. This is to order a transcript of Status Conference held on 06/04/2014 before Judge Keith P Ellison (original). Court Reporter/Transcriber: Bruce Slavin, filed. (sroque, 4) (Entered: 06/05/2014)
166 AO 435 TRANSCRIPT ORDER FORM by King & Spalding. This is to order a transcript of Status Conference held on 06/04/2014 before Judge Keith P Ellison (copy). Court Reporter/Transcriber: Bruce Slavin, filed. (sroque, 4) (Entered: 06/05/2014)
167 TRANSCRIPT re: Status Conference held on 6−4−14 before Judge Keith P Ellison. Court Reporter/Transcriber B. Slavin. Ordering Party Plaintiff/Defendants Release of Transcript Restriction set for 9/3/2014., filed. (bslavin, ) (Entered: 06/05/2014)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 19 of 36

06/06/2014 06/11/2014 06/12/2014 06/13/2014 06/18/2014 06/30/2014 06/30/2014
06/30/2014
07/08/2014 07/11/2014 07/18/2014

168 Notice of Filing of Official Transcript as to 167 Transcript. Party notified, filed. (dhansen, 4) (Entered: 06/06/2014)
169 CORRECTED TRANSCRIPT re: Status Conference held on 6−4−14 before Judge Keith P Ellison. Court Reporter/Transcriber B. Slavin. Ordering Party All. (Speaker identification corrected at Page 62, Line 12). Release of Transcript Restriction set for 9/9/2014., filed. (bslavin, ) (Entered: 06/11/2014)
170 Notice of Filing of Official Transcript as to 169 Transcript,. Party notified, filed. (mmapps, 4) (Entered: 06/12/2014)
171 Fourth AMENDED COMPLAINT with Jury Demand against Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC filed by Equal Employment Opportunity Commission.(Batog, Konrad) (Entered: 06/13/2014)
172 Supplemental BRIEF in Support , Seeking Application of the Franks / Teamsters Model to the Section 706 Class Hiring Claim, re: 60 MOTION for Reconsideration of 53 Memorandum and Order by Equal Employment Opportunity Commission, filed. (Attachments: # 1 Exhibit 1, # 2 Appendix of Cases)(Juge, Gregory) (Entered: 06/18/2014)
173 ANSWER to 171 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand on all matters so triable by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed.(Johnston, Michael) (Entered: 06/30/2014)
174 RESPONSE to 172 Brief, , filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − List of Cases Supporting Court's Holding, # 3 Exhibit B − Response to Cases Cited in EEOC's Ex. 1, # 4 Exhibit C − Excerpts from 10/22/12 Hr'g, # 5 Exhibit D − Excerpts from 05/14/13 Hr'g, # 6 Exhibit E − Excerpts from 11/19/13 Hr'g, # 7 Exhibit F − Excerpts from 06/04/14 Hr'g, # 8 Exhibit G − Letters to Hon. Keith P. Ellison)(Johnston, Michael) (Entered: 06/30/2014)
175 APPENDIX re: 174 Response,, by Bass Pro, Inc., Tracker Marine Retail, LLC, filed. (Attachments: # 1 Exhibit 1 − Adams v. Brookshire, # 2 Exhibit 2 − Ariz ex. rel Goddard v. GEO, # 3 Exhibit 3 − Baldwin v. Layton, # 4 Exhibit 4 − Bender Square v. Factory Mut. Ins., # 5 Exhibit 5 − David v. Signal (01/12), # 6 Exhibit 6 − David v. Signal (12/13), # 7 Exhibit 7 − EEOC v. Am. Samoa Gov't, # 8 Exhibit 8 − EEOC v. CRST Van Expedited, # 9 Exhibit 9 − EEOC v. Farmers Ins., # 10 Exhibit 10 − EEOC v. Global Horizons, # 11 Exhibit 11 − EEOC v. Int'l Profit (3/07), # 12 Exhibit 12 − EEOC v. Int'l Profit (3/10), # 13 Exhibit 13 − EEOC v. JBS (8/11), # 14 Exhibit 14 − EEOC v. JBS (12/11), # 15 Exhibit 15 − EEOC v. JBS (11/12), # 16 Exhibit 16 − EEOC v. O'Reilly Auto., # 17 Exhibit 17 − EEOC v. Performance Food Grp., # 18 Exhibit 18 − EEOC v. Performance Food Grp., # 19 Exhibit 19 − EEOC v. Sterling Jewelers, # 20 Exhibit 20 − Roussell v. Brinker, # 21 Exhibit 21 − White v. Am. Dental, # 22 Exhibit 22 − EEOC Guidelines (3/22/78), # 23 Exhibit 23 − Systemic Task Force Report (3/06), # 24 Exhibit 24 − EEOC v. JBS 09−28−12 Order, # 25 Exhibit 25 − EEOC v. Performance Food − Am. Compl., # 26 Exhibit 26 − 63 Am. U.L. Rev. 87 (10/13))(Johnston, Michael) (Entered: 06/30/2014)
176 ORDER FOR SUPPLEMENTAL BRIEFING (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) (Entered: 07/08/2014)
177 RESPONSE in Opposition to 160 MOTION for Summary Judgment, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration, # 2 Appendix of Cases)(Batog, Konrad) (Entered: 07/11/2014)
178 REPLY in Support of 160 MOTION for Summary Judgment, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Non−Exhaustive List of Cases Criticizing EEOC Conduct, # 3 Exhibit B − Excerpts from 11/19/13 Hr'g, # 4 Exhibit C − Excerpts from 06/04/14 Hr'g, # 5 Appendix Table of Unreported Material, # 6 1 − Ariz. ex. rel. Goddard v. GEO Group, # 7 2 − Dillon v. Wal−Mart, # 8 3 − EEOC v. Am. Samoa Gov't, # 9 4 − EEOC v. BOK Fin., # 10 5 − EEOC v. CRST Van Expedited, # 11 6 − EEOC v. Dillard's, # 12 7 − EEOC v. Global Horizons, # 13 8 − EEOC v. High Speed Enter., # 14 9 − EEOC v. HomeNurse, # 15 10 − EEOC v. Original HoneyBaked Ham, # 16 11 − EEOC v. Peoplemark, # 17 12 − EEOC v. Sterling Jewelers (01/02/14), # 18 13 − EEOC v. Sterling Jewelers (03/10/14), # 19 14 − EEOC v. Target Corp., # 20 15 − EEOC v.

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 20 of 36

07/20/2014
07/20/2014 07/22/2014 07/22/2014 07/23/2014 07/30/2014 08/12/2014
08/29/2014 09/08/2014
09/18/2014 09/18/2014 09/22/2014 09/22/2014 10/15/2014

Tricore Reference Labs., # 21 16 − EEOC v. Wal−Mart, # 22 17 − Kluttz v. Worldpac, # 23 18 − H.R. Rep. No. 113−448)(Johnston, Michael) (Entered: 07/18/2014)
179 RESPONSE to 176 Order for Supplemental Brief, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Excerpts from 11/19/13 Hr'g, # 3 Exhibit B − Excepts from 6/4/14 Hr'g, # 4 Appendix List of Unreported Material, # 5 1 − EEOC v, Am. Samoa Gov't, # 6 2 − EEOC v. Freeman, # 7 3 − EEOC v. Hearst Corp., # 8 4 − EEOC v. JBS USA, # 9 5 − EEOC v. O'Reilly Auto., # 10 6 − EEOC v. Wal−Mart Stores, # 11 7 − H.R. No. 102−40(I))(Johnston, Michael) (Entered: 07/20/2014)
180 BRIEF IN RESPONSE TO COURT ORDER AND IN SUPPORT OF ECF NO. 172 RE APPLICATION OF FRANKS / TEAMSTERS MODEL OF PROOF TO SEC. 706 CLAIMS re: 176 Order by Equal Employment Opportunity Commission, filed.(Juge, Gregory) (Entered: 07/20/2014)
181 Letter to Judge Ellison re: EEOC v. Shell Oil by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed.(Johnston, Michael) (Entered: 07/22/2014)
182 RESPONSE to 181 Document Letter of EEOC to the Court in response to Bass Pro's letter regarding Shell Oil, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 07/22/2014)
183 NOTICE of Withdrawal (of Carolyn Cain Burch) by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Burch, Carolyn) (Entered: 07/23/2014)
184 MEMORANDUM AND ORDER denying 160 MOTION for Summary Judgment; granting 172 Motion for Application of the Franks / Teamsters Model to the Section 706 Class Hiring Claim(Signed by Judge Keith P Ellison) Parties notified.(rsmith, 4) (Entered: 07/30/2014)
185 MOTION for Interlocutory Appeal as to 184 Memorandum and Order by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 9/2/2014. (Attachments: # 1 Appendix − Unreported Cases, # 2 1 − EEOC v. JBS USA, LLC, # 3 2 − EEOC v. Performance Food Group, # 4 3 − EEOC v. Sterling Jewelers, # 5 4 − EEOC v. Wal−Mart Stores)(Johnston, Michael) (Entered: 08/12/2014)
186 RESPONSE in Opposition to 185 MOTION for Interlocutory Appeal as to 184 Memorandum and Order, filed by Equal Employment Opportunity Commission. (Attachments: # 1 APPENDIX OF CASES)(Juge, Gregory) (Entered: 08/29/2014)
187 REPLY in Support of 185 MOTION for Interlocutory Appeal as to 184 Memorandum and Order, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 A − Excerpts from 11/19/13 Hearing Tr., # 3 B − Excerpts from 06/04/14 Hearing Tr., # 4 1 − DuPree v. Kaye, # 5 2 − In Re: Delta Produce v. I. Kunik Co., # 6 3 − Luera v. The M/V Alberta, # 7 4 − Rogers v. City of San Antonio)(Johnston, Michael) (Entered: 09/08/2014)
188 MOTION for Rebecca Cole Moore to Appear Pro Hac Vice by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 10/9/2014. (Johnston, Michael) (Entered: 09/18/2014)
189 MOTION for Jona J. McCormick to Appear Pro Hac Vice by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 10/9/2014. (Johnston, Michael) (Entered: 09/18/2014)
190 ORDER granting 189 Motion for Jona J. McCormick to Appear Pro Hac Vice. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4) (Entered: 09/22/2014)
191 ORDER granting 188 Motion for Rebecca Cole Moore to Appear Pro Hac Vice. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4) (Entered: 09/22/2014)
192 NOTICE of Setting as to 185 MOTION for Interlocutory Appeal as to 184 Memorandum and Order. Parties notified. Motion Hearing set for 10/27/2014 at 10:30 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 10/15/2014)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 21 of 36

10/27/2014
10/27/2014 10/29/2014
11/03/2014 11/05/2014 11/06/2014 11/17/2014 02/02/2015 02/03/2015 02/09/2015 02/10/2015 02/10/2015 02/10/2015 02/13/2015
02/18/2015 02/19/2015

Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 10/27/2014. Arguments heard. The matter is taken under advisement. Appearances:(Law Clerk: Jessica Marsden). Michael W Johnston, Rebecca Cole Moore, Gregory T. Juge, Robert D Rose, Tanya L. Goldman.(Court Reporter: Heather Hall), filed.(sloewe, 4) (Entered: 10/27/2014)
193 EXHIBITS by Equal Employment Opportunity Commission, filed.(Juge, Gregory). (Entered: 10/27/2014)
194 AO 435 TRANSCRIPT ORDER FORM by Leonora M. Shealy. This is to order a transcript of Motion Hearing held on 10/27/2014 before Judge Keith P Ellison (original). Court Reporter/Transcriber: Heather Hall. Transcript order Form was electronically forwarded to Court Reporter H. Hall on 10/29/2014., filed. (sroque, 4) (Entered: 10/29/2014)
195 RESPONSE to 193 Exhibits , filed by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C.. (Attachments: # 1 Exhibit A − Chart Responding to EEOC's list of 50 cases)(Johnston, Michael) (Entered: 11/03/2014)
196 TRANSCRIPT re: Motion Hearing held on 10/27/14 before Judge Keith P Ellison. Court Reporter/Transcriber Heather Hall. Ordering Party Lenora M. Shealy Release of Transcript Restriction set for 2/3/2015., filed. (hhall, ) (Entered: 11/05/2014)
197 Notice of Filing of Official Transcript as to 196 Transcript. Party notified, filed. (dhansen, 4) (Entered: 11/06/2014)
198 MEMORANDUM AND ORDER GRANTING 185 MOTION for Interlocutory Appeal as to 184 Memorandum and Order (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) (Entered: 11/17/2014)
199 MOTION to Set Schedule for Parties to Negotiate Case Management Order (with Proposed Order) by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/23/2015. (Attachments: # 1 Exhibit)(Juge, Gregory) (Entered: 02/02/2015)
200 ORDER for EXPEDITED RESPONSE 199 MOTION to Set Schedule for Parties to Negotiate Case Management Order. Defendant's Response due by NOON 2/13/2015. Plaintiff's Reply due by NOON 2/18/2015. (Signed by Judge Keith P Ellison) Parties notified. (cfelchak, 4) (Entered: 02/04/2015)
201 NOTICE of Withdrawal of Counsel by Equal Employment Opportunity Commission, filed. (Goldman, Tanya) (Entered: 02/09/2015)
202 Order of USCA − PER CURIAM; USCA No. 14−90044. It is ORDERED that leave to appeal from the interlocutory order of the USDC of the SDTX, Houston, entered on July 30, 2014 is GRANTED, filed. (rnieto, 1) (Entered: 02/10/2015)
203 (** This entry was created for reference purposes. Pursuant to USCA order Dkt. #202). US Court of Appeals Per Curiam re: 184 Memorandum and Order filed. (bcampos, 1) Modified on 2/11/2015 (bcampos, 1). (Entered: 02/10/2015)
Notice of Assignment of USCA No. 15−20078 re: 203 Notice of Appeal,, filed.(bcampos, 1) (Entered: 02/10/2015)
204 RESPONSE in Opposition to 199 MOTION to Set Schedule for Parties to Negotiate Case Management Order (with Proposed Order), filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A− Chronology of Case Management Order Issue, # 3 Exhibit B − Excerpts from the 05/14/13 Hr'g Tr., # 4 Exhibit C − Excerpt from the 10/27/14 Hr'g Tr., # 5 Exhibit D − Excerpt from the 06/04/14 Hr'g Tr., # 6 1 − Roussell v. Brinker, 2008 wl 2714079, # 7 2 − Roussell v. Brinker, 2008 WL 7835721, # 8 3 − Roussell v. Brinker, 2009 WL 6496504)(Johnston, Michael) (Entered: 02/13/2015)
205 REPLY in Support of 199 MOTION to Set Schedule for Parties to Negotiate Case Management Order (with Proposed Order), filed by Equal Employment Opportunity Commission. (Batog, Konrad) (Entered: 02/18/2015)
Appeal Filing fee: $505 re: 202 USCA Order, receipt number HOU051692, filed. (thanniable, 4) (Entered: 02/19/2015)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 22 of 36

02/19/2015 03/11/2015 03/11/2015 03/26/2015 03/26/2015
03/27/2015 04/30/2015 05/14/2015 05/15/2015 05/21/2015
05/22/2015 05/22/2015 05/26/2015

206 DKT−13 TRANSCRIPT ORDER FORM by Michael W. Johnston. Transcript is already on file in Clerks office.. This order form relates to the following: 203 Notice of Appeal, filed.(thanniable, 4) (Entered: 02/19/2015)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: USCA Case Number USCA No. 15−20078, filed.(sbejarano, 1) (Entered: 03/11/2015)
207 Transmittal Letter on Appeal re: 203 Notice of Appeal. The electronic record on CD is being sent to Gregory T. Juge, and Michael Wayne Johnston via regular mail. (USCA No. 15−20078), filed. (sbejarano, 1) (Entered: 03/11/2015)
208 ORDER for EXPEDITED RESPONSE Plaintiff to submit a Case Management Order and Brief due by 4/30/2015. Defenant's Responses to Proposed CMO due by 5/21/2015. Plaintiffs' Replies due by 5/31/2015. (Signed by Judge Keith P Ellison) Parties notified.(cfelchak, 4) (Entered: 03/26/2015)
209 Unopposed MOTION to Supplement Record by Bass Pro Outdoor World, LLC, Tracker Marine, L.L.C., filed. Motion Docket Date 4/16/2015. (Attachments: # 1 Proposed Order, # 2 Exhibit A − 10/04/12 Letter to Judge Ellison, # 3 Exhibit B − 09/10/13 Letter to Judge Ellison, # 4 Exhibit C − 09/12/13 Letter to Judge Ellison, # 5 Exhibit D − 01/10/14 Letter to Judge Ellison, # 6 Exhibit E − 01/16/14 Letter to Judge Ellison, # 7 Exhibit F − 10/31/14 Letter to Judge Ellison)(Johnston, Michael) (Entered: 03/26/2015)
210 ORDER granting 209 Motion to Supplement.(Signed by Judge Keith P Ellison) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) Parties notified.(sloewe, 4) (Entered: 03/27/2015)
211 MEMORANDUM IN SUPPORT OF ENTRY OF CASE MANAGEMENT ORDER by Equal Employment Opportunity Commission, filed. (Attachments: # 1 PROPOSED CASE MANAGEMENT ORDER, # 2 APPENDIX OF CASES)(Juge, Gregory) (Entered: 04/30/2015)
212 MOTION for Lovita T Tandy to Appear Pro Hac Vice by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 6/4/2015. (Matchett, Samuel) (Entered: 05/14/2015)
213 ORDER granting 212 Motion for Lovita Tandy to Appear Pro Hac Vice.(Signed by Judge Keith P Ellison) Parties notified.(amwilliams, 4) (Entered: 05/15/2015)
214 RESPONSE to 211 Memorandum in Support of Entry of Case Management Order, filed by Bass Pro, Inc., Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Responses to Stage I Discovery Parameters in the EEOC's PCMO and Case Management Order, # 3 Exhibit 1−2 − Signal Pleadings, # 4 Exhibit 3−4 − Cintas Pleadings, # 5 Exhibit 5 − Dollar General Pleading, # 6 Exhibit 6−7 − Freeman Pleadings, # 7 Exhibit 8 − Guardsmark Pleading, # 8 Exhibit 9−10 − Honeybaked Ham Pleadings, # 9 Exhibit 11 − JBS Pleading, # 10 Exhibit 12−14 Kaplan Pleadings, # 11 Exhibit 15 − Kaplan Opinion, # 12 Exhibit 16 − LA Weight Loss Pleading, # 13 Exhibit 17 − McCormick & Schmick Pleading, # 14 Exhibit 18 − PMT Pleading, # 15 Exhibit 19−20 − Princeton Health Pleadings, # 16 Exhibit 21 − Scrub Pleading, # 17 Exhibit 22 − Sterling Jewelers Pleading, # 18 Exhibit 23−24 − Tex. Roadhouse Pleadings, # 19 Exhibit 25−39 − Caselaw)(Johnston, Michael) (Entered: 05/21/2015)
Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: USCA Case Number USCA No. 15−20078, filed.(dahumada, 1) (Entered: 05/22/2015)
215 Transmittal Letter on Appeal re: 203 Notice of Appeal. The electronic supplemental record on CD is being sent to Michael Johnston, Samuel Matchett, Jona Jne McCormick, Rebecaa Moore, James Patrick Sullivan. (USCA No. 15−20078), filed. (dahumada, 1) (Entered: 05/22/2015)
216 Unopposed MOTION for Entry of Order re: Permitting the Withdrawal of Carolyn Cain Burch by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 6/16/2015. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 05/26/2015)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 23 of 36

05/27/2015 06/01/2015 06/03/2015 06/10/2015 06/11/2015 06/24/2015 07/02/2015 07/21/2015 07/21/2015
08/03/2015 08/10/2015 08/11/2015 09/11/2015 09/22/2015
09/24/2015
09/24/2015

217 ORDER granting 216 Unopposed MOTION for Entry of Order re: Permitting the Withdrawal of Carolyn Cain Burch, Attorney Carolyn Cain Burch withdrawn from the docket.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 05/27/2015)
218 REPLY in Support of Entry of Case Management Order, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 06/01/2015)
219 RESPONSE to 218 Reply , filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Johnston, Michael) (Entered: 06/03/2015)
220 MOTION Leave of Absence by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 7/1/2015. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 06/10/2015)
221 ORDER granted 220 MOTION Leave of Absence. Michael W. Johnson granted leave of absence for the period of July 31, 2015 through August 14, 2015. (Signed by Judge Keith P Ellison) Parties notified. (cfelchak, 4) (Entered: 06/11/2015)
222 NOTICE of Setting. Parties notified. Status Conference set for 7/21/2015 at 11:00 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 06/24/2015)
223 ORDER Status Conference set for 7/21/2015 at 11:00 AM in Courtroom 3A before Judge Keith P Ellison (Signed by Judge Keith P Ellison) Parties notified. (cfelchak, 4) (Entered: 07/07/2015)
224 MEMORANDUM AND ORDER (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 07/22/2015)
Minute Entry for proceedings held before Judge Keith P Ellison. STATUS CONFERENCE held on 7/21/2015. The parties make oral arguments regarding appropriate case management plan during the pendency of interlocutory appeal filed by the Defts. The Court to issue an opinion on the matter. Appearances: Michael W Johnston, Samuel M Matchett, Rebecca Cole Moore, Gregory T. Juge, Connie Kay Wilhite.(Court Reporter: H. Alcaraz)(LC: J. Marsden), filed.(arrivera, 4) (Entered: 07/22/2015)
225 AO 435 TRANSCRIPT ORDER FORM by Lenora Shealy. This is to order a transcript of Motion Hearing held on July 21, 2015 before Judge Keith P Ellison (original). Court Reporter/Transcriber: Heather Alcaraz, filed. (sroque, 4) (Entered: 08/03/2015)
226 TRANSCRIPT re: Motion Hearing held on 7/21/15 before Judge Keith P Ellison. Court Reporter Heather Alcaraz. Ordering Party Lenora Shealy. Release of Transcript Restriction set for 11/9/2015., filed. (halcaraz, ) (Entered: 08/10/2015)
227 Notice of Filing of Official Transcript as to 226 Transcript. Party notified, filed. (jdav, 4) (Entered: 08/11/2015)
228 MOTION for Protective Order by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/2/2015. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Bowne, Timothy) (Entered: 09/11/2015)
229 Agreed MOTION for Extension of Time to File Response to Plaintiff's Motion for Protective Order to Quash Defendants' Noticed Rule 30(b)(6) Deposition by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 10/13/2015. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 09/22/2015)
230 ORDER granting 229 Agreed MOTION for Extension of Time to File Response to Plaintiff's Motion for Protective Order to Quash Defendants' Noticed Rule 30(b)(6) Deposition. Defendants' Response due on October 16, 2015. EEOC shall have ten days from the date Defendants' Response is filed to file a reply in support of its Motion for Protective Order, as provided in Item 7(A) of the Court Procedures. (Signed by Judge Keith P Ellison) Parties notified.(olindor, 4) (Entered: 09/24/2015)
231 MOTION for Konrad Batog to Withdraw as Attorney by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/15/2015. (Batog, Konrad) (Entered: 09/24/2015)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 24 of 36

09/25/2015 10/16/2015
10/16/2015
10/23/2015 10/23/2015 10/26/2015 10/28/2015 10/28/2015 10/30/2015 10/30/2015
11/06/2015 11/06/2015

232 ORDER granting 231 Motion to Withdraw as Attorney. Attorney Konrad Batog terminated. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4) (Entered: 09/25/2015)
233 RESPONSE in Opposition to 228 MOTION for Protective Order, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Email from G. Juge to M. Johnston, # 3 Exhibit B − EEOC Resps. to First Interrogs., # 4 Exhibit C − EEOC Resps. to First Req. for Prod., # 5 Exhibit D − Decl. of J. Sargent, # 6 Exhibit E − Decl. of J. Morris, # 7 Exhibit F − Decl. of J. Hagale, # 8 Exhibit G − Decl. of M. Rowland, # 9 Exhibit H − Email from M. Johnston to T. Bowne, # 10 Exhibit 1 − Court Pleadings re EEOC v. Pioneer Hotel, Inc., # 11 Exhibit 2 − Court Pleadings re EEOC v. Texas Roadhouse, Inc., # 12 Exhibit 3−32 − Case Law, # 13 Exhibit 33 − Reg'l Attorney's Manual, Part 3: Conducting Litigation)(Johnston, Michael) (Entered: 10/16/2015)
234 MOTION for Reconsideration of 224 Memorandum and Order, MOTION to Stay Discovery Pending Resolution of Fifth Circuit Appeal and Entry of Viable Case Management Order ( Motion Docket Date 11/6/2015.) by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Appendix, # 2 Exhibit A − Sargent Declaration, # 3 Exhibit B − Pl.'s First Interrogatories, # 4 Exhibit C − Second Tucker Declaration, # 5 Exhibit D − Pl.'s First RFP, # 6 Exhibit E − Pl.'s Resp. to Defs.' First Interrogs., # 7 Exhibit F − Pl.'s Resp. to Defs.' First RFP, # 8 Exhibit Case Law)(Johnston, Michael) (Entered: 10/16/2015)
235 Ex Parte MOTION for Extension of Time TO FILE REPLY CONCERNING MOTION FOR PROTECTIVE ORDER TO QUASH NOTICE OF 30(b)(6) DEPOSITION by Equal Employment Opportunity Commission, filed. Motion Docket Date 11/13/2015. (Juge, Gregory) (Entered: 10/23/2015)
236 RESPONSE in Opposition to 235 Ex Parte MOTION for Extension of Time TO FILE REPLY CONCERNING MOTION FOR PROTECTIVE ORDER TO QUASH NOTICE OF 30(b)(6) DEPOSITION, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Exhibit A − E−mail from G. Juge, # 2 Exhibit B − E−mail from R. Moore)(Johnston, Michael) (Entered: 10/23/2015)
237 REPLY to Response to 228 MOTION for Protective Order, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 case −− 2015 WL 4610284)(Juge, Gregory) (Entered: 10/26/2015)
238 Unopposed MOTION for Leave to File Additional Briefing Regarding EEOC's Motion for Protective Order to Quash Defendants' Notice of Rule 30(b)(6) Deposition by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 11/18/2015. (Johnston, Michael) (Entered: 10/28/2015)
239 ORDER granting 238 Motion for Leave to File Additional Briefing Regarding EEOC's Motion for Protective Order to Quash Defendants' Notice of Rule 30(b)(6) Deposition. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4) (Entered: 10/29/2015)
240 ORDER denying as moot 235 Motion for Extension of Time. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4) (Entered: 10/30/2015)
241 SURREPLY to 228 MOTION for Protective Order, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit 1 − Blanks v. Lockheed, # 3 Exhibit 2 − Brody v. Zix, # 4 Exhibit 3 − EEOC v. Anchor Hocking, # 5 Exhibit 4 − EEOC v. Consolidated Edison, # 6 Exhibit 5 − EEOC v. FAPS, # 7 Exhibit 6 − EEOC v. Peoplemark, # 8 Exhibit 7 − Giezie v. Valley Health, # 9 Exhibit 8 − In re: Kleberg Cnty, Tex)(Johnston, Michael) (Entered: 10/30/2015)
242 RESPONSE in Opposition to 234 MOTION for Reconsideration of 224 Memorandum and Order MOTION to Stay Discovery Pending Resolution of Fifth Circuit Appeal and Entry of Viable Case Management Order, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Case − Estate of Rubenstein, # 2 Case − Wilson v. Liberty)(Juge, Gregory) (Entered: 11/06/2015)
243 MEMORANDUM In Response TO DEFENDANTS SUR−REPLY IN OPPOSITION TO THE EEOCS MOTION FOR PROTECTIVE ORDER TO QUASH DEFENDANTS NOTICE OF RULE 30(b)(6) DEPOSITION by Equal Employment Opportunity Commission, filed. (Attachments: # 1 Case − EEOC v. Autozone)(Juge, Gregory)

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 25 of 36

11/16/2015 12/11/2015 12/18/2015 12/21/2015 12/21/2015 01/19/2016 01/19/2016
01/20/2016 01/23/2016 01/25/2016

(Entered: 11/06/2015)
244 REPLY in Support of 234 MOTION for Reconsideration of 224 Memorandum and Order MOTION to Stay Discovery Pending Resolution of Fifth Circuit Appeal and Entry of Viable Case Management Order, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 EEOC v. Faps, Doc. 192)(Johnston, Michael) (Entered: 11/16/2015)
245 MOTION for Protective Order by Equal Employment Opportunity Commission, filed. Motion Docket Date 1/1/2016. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 − appendix of cases)(Juge, Gregory) (Entered: 12/11/2015)
246 First MOTION to Compel Discovery in Response to Request for Production Number 14 by Equal Employment Opportunity Commission, filed. Motion Docket Date 1/8/2016. (Attachments: # 1 Excerpts from Def. Discovery Responses, # 2 Proposed Order, # 3 Unreported cases)(Juge, Gregory) (Entered: 12/18/2015)
247 Unopposed MOTION for Extension of Time to Respond to EEOC's Motion for Protective Order and EEOC's Motion to Compel by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 1/11/2016. (Attachments: # 1 Proposed Order)(McCormick, Jona) (Entered: 12/21/2015)
248 ORDER granting 247 Unopposed MOTION for Extension of Time to Respond to EEOC's Motion for Protective Order and EEOC's Motion to Compel. Defendant's Response in Opposition to EEOC's Motion for Protective Order is due on January 19, 2016. Defendant's Response in Opposition to EEOC's First Motion to Compel Discovery is due on January 25,2016.(Signed by Judge Keith P Ellison) Parties notified.(olindor, 4) (Entered: 12/22/2015)
249 RESPONSE in Opposition to 245 MOTION for Protective Order, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − 10/12/15 − 12/17/15 Emails, # 3 Exhibit B − 03/23/12 − 05/22/12 Emails, # 4 Exhibit C − 12/17/15 − 01/04/16 Emails, # 5 Exhibit D − Defendants' Protective Order, # 6 Exhibit E − Redlined Protective Order, # 7 Exhibit F − Redlined copy for Dispute, # 8 Exhibit G 12/01/15 − 01/13/16 Emails)(Johnston, Michael) (Entered: 01/19/2016)
250 APPENDIX re: 249 Response in Opposition to Motion,, by Bass Pro, Inc., Tracker Marine Retail, LLC, filed. (Attachments: # 1 Exhibit H−1 − EEOC v. United Health, # 2 Exhibit H−2 − EEOC v. BNV, # 3 Exhibit H−3 − EEOC v. PMT, # 4 Exhibit H−4 − EEOC v. Waste, # 5 Exhibit H−5 − EEOC v. Texas Roadhouse, # 6 Exhibit H−6 − EEOC v. Performance Food, # 7 Exhibit H−7 − EEOC v. Dollar General, # 8 Exhibit H−8 − EEOC v. Fred Fuller, # 9 Exhibit H−9 − EEOC v. UOM, # 10 Exhibit H−10 − EEOC v. Port Auth., # 11 Exhibit H−11 − EEOC v. Kohl, # 12 Exhibit H−12 − EEOC v. DynMerDermott, # 13 Exhibit H−13 − EEOC v. Kaplan, # 14 Exhibit H−14 − EEOC v. Res. for Human Dev., # 15 Exhibit H−15 − EEOC v. BoH Bros., # 16 Exhibit H−16 − EEEOC v. Guardsmark LLC, # 17 Exhibit H−17 − EEOC v. Finsh, # 18 Exhibit H−18 − EEOC v. ISEI, # 19 Exhibit H−19 − EEOC v. Saks, # 20 Exhibit H−20 − EEOC v. Air Liquide, # 21 Exhibit 21−27 Unreported Decisions)(Johnston, Michael) (Entered: 01/20/2016)
251 APPENDIX re: 249 Response in Opposition to Motion,, by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 21 − Bridge v. Credit One, # 2 22 − Dahdal v. Thorn Ams., # 3 23 − FDIC v. Flamingo, # 4 24 − Loritz v. Pfingst, # 5 25 − Mike v. Dymon, # 6 26 − United Surgical v. Stitt, # 7 27 − Excerpt from Manual for Complex Litigation)(Johnston, Michael) (Entered: 01/20/2016)
252 Unopposed MOTION for Extension of Time to Respond to EEOC's Motion to Compel by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 2/16/2016. (Attachments: # 1 Exhibit A − Emails, # 2 Proposed Order)(Johnston, Michael) (Entered: 01/23/2016)
253 ORDER granting 252 Motion for Extension of Time Responses due by 2/22/2016..(Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) (Entered: 01/25/2016)

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01/25/2016 01/26/2016 02/04/2016 02/05/2016 02/08/2016 02/11/2016
02/12/2016 02/19/2016
02/22/2016 02/22/2016
02/22/2016 02/22/2016 02/25/2016 02/26/2016

254 Unopposed MOTION for Extension of Time DEADLINE TO FILE REPLY CONCERNING MOTION FOR PROTECTIVE ORDER TO PROTECT CONFIDENTIAL INFORMATION by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/16/2016. (Juge, Gregory) (Entered: 01/25/2016)
255 ORDER granting 254 Motion for Extension of Time. Reply Brief due by 2/5/2016..(Signed by Judge Keith P Ellison) Parties notified.(jdav, 4) (Entered: 01/26/2016)
256 MOTION for Robert D. Rose to Withdraw as Attorney by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/25/2016. (Rose, Robert) (Entered: 02/04/2016)
257 REPLY to Response to 245 MOTION for Protective Order, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1)(Juge, Gregory) (Entered: 02/05/2016)
258 ORDER granting 256 MOTION for Robert D. Rose to Withdraw as Attorney. (Signed by Judge Keith P Ellison) Parties notified.(olindor, 4) (Entered: 02/08/2016)
259 NOTICE of Setting as to 228 MOTION for Protective Order, 234 MOTION for Reconsideration of 224 Memorandum and Order MOTION to Stay Discovery Pending Resolution of Fifth Circuit Appeal and Entry of Viable Case Management Order. Parties notified. Motion Hearing set for 2/19/2016 at 11:00 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 02/11/2016)
260 NOTICE of Filing Corrected Page re: 249 Response in Opposition to Motion,, by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Corrected Page 2)(Tandy, Lovita) (Entered: 02/12/2016)
Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 2/19/2016 DENYING 234 MOTION for Reconsideration of 224 Memorandum and Order MOTION to Stay Discovery Pending Resolution of Fifth Circuit Appeal and Entry of Viable Case Management Order, TERMINATED AS STAYED 228 MOTION for Protective Order. Discovery is stayed pending the Court's ruling on the Motion for Protection Order and Plaintiff's Motion to Compel. Appearances:(Law Clerk: J. Levin).(Court Reporter: Kathy Miller), filed.(sloewe, 4) (Entered: 02/19/2016)
261 AO 435 TRANSCRIPT REQUEST by Bass Pro/Michael W. Johnston for Transcript of Motion Hearing on 02/19/16 before Judge Ellison. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Johnston, Michael) (Entered: 02/22/2016)
262 Unopposed MOTION for Extension of Time For the Parties' Briefing on the EEOC's First Motion to Compel (Doc. 246)( Motion Docket Date 3/14/2016.), Unopposed MOTION for Leave to File Additional Briefing Relating to EEOC's Motion for Protective Order (Doc. 245) by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 02/22/2016)
263 AO 435 TRANSCRIPT REQUEST by EEOC/Gregory T. Juge for Transcript of Motion Hearing on 2/19/16 before Judge Ellison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Bowne, Timothy) (Entered: 02/22/2016)
264 ORDER granting 262 Motion for Extension of Time for Parties' Briefing on the Motion to Compel and Leave to file additional briefing.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 02/23/2016)
265 TRANSCRIPT re: Hearing held on February 19, 2016 before Judge Keith P Ellison. Court Reporter/Transcriber Kathleen Miller. Ordering Party Michael Johnston Release of Transcript Restriction set for 5/25/2016., filed. (kmiller, ) (Entered: 02/25/2016)
266 Notice of Filing of Official Transcript as to 265 Transcript. Party notified, filed. (hcarr, 4) (Entered: 02/26/2016)

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03/01/2016 03/01/2016 03/01/2016
03/04/2016
03/16/2016 03/18/2016 03/22/2016 03/30/2016
04/07/2016

267 Unopposed MOTION for Extension of Time to File Sur−Reply to Plaintiff's Motion for Protective Order to Protect Confidential Information by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 3/22/2016. (Attachments: # 1 Proposed Order)(Tandy, Lovita) (Entered: 03/01/2016)
268 ORDER granting 267 Motion for Extension of Time; Motion−related deadline set re: 245 MOTION for Protective Order. Sur−Reply due by 3/4/2016.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 03/01/2016)
269 RESPONSE in Opposition to 246 First MOTION to Compel Discovery in Response to Request for Production Number 14, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit 1, # 24 Exhibit 2, # 25 Exhibit 3, # 26 Exhibit 4, # 27 Exhibit 5, # 28 Exhibit 6, # 29 Exhibit 7)(Johnston, Michael) (Entered: 03/01/2016)
270 SURREPLY to 245 MOTION for Protective Order, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Excerpts from Hr'g Tr., # 3 Exhibit B − E−mails between Tandy and Juge, # 4 Exhibit C − E−mails between Tandy and Juge, # 5 Exhibit D − EEOC v. Bok Fin. Doc. 71, # 6 Exhibit E − Shealy Decl., # 7 Exhibit F − Letter from Damiani, # 8 Exhibit G − In re Ceridian, # 9 Exhibit H − Cal. Civ. Code, # 10 Exhibit I − EEOC v. Texas Roadhouse − Doc. 309, # 11 Exhibit J − Email from Tandy to Juge, # 12 Exhibit K − EEOC v. Texas Roadhouse − Doc. 382, # 13 Exhibit L − EEOC v. Texas Roadhouse − Doc. 365)(Tandy, Lovita) (Entered: 03/04/2016)
271 Corrected RESPONSE in Opposition to 246 First MOTION to Compel Discovery in Response to Request for Production Number 14, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Johnston, Michael) (Entered: 03/16/2016)
272 REPLY in Support of 245 MOTION for Protective Order, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1: EEOC v. Guardsmark, # 2 Exhibit 2: Unreported Case)(Wilhite, Connie) (Entered: 03/18/2016)
273 REPLY to Response to 246 First MOTION to Compel Discovery in Response to Request for Production Number 14, filed by Equal Employment Opportunity Commission. (Attachments: # 1 TYSON FOODS, INC., PETITIONER v. PEG BOUAPHAKEO, et..., −−− S.Ct. −−−− (2016))(Juge, Gregory) (Entered: 03/22/2016)
274 Opposed MOTION for Leave to File Motion to Compel by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 4/20/2016. (Attachments: # 1 Appendix, # 2 Proposed Order, # 3 Exhibit A − Motion to Compel, # 4 Exhibit A − Motion to Compel Exs. A−V, # 5 Exhibit A − Motion to Compel Exs. 1−24, # 6 Exhibit B − Pl.'s Interrog. Responses, # 7 Exhibit C − Pl.'s RFP Responses, # 8 Exhibit D − 08/12/15 E−mail, # 9 Exhibit E − 08/28/15 E−mail, # 10 Exhibit F − 02/12/16 Letter, # 11 Exhibit G − Excerpts from Appellee's Br, # 12 Exhibit 1 − 10/30/15 Letter, # 13 Exhibit 2 − 11/17/15 Letter, # 14 Exhibit 3 − 12/09/15 Letter, # 15 Exhibit 4 − 12/23/15 Letter, # 16 Exhibit 5 − 01/20/16 Letter, # 17 Exhibit 6 − 02/22/16 E−mail, # 18 Exhibit 7 − 03/28/16 Email, # 19 Exhibit 8 − EEOC v. Peoplemark, # 20 Exhibit 9 − Hall v. GE Plastic)(Johnston, Michael) (Entered: 03/30/2016)
275 Unopposed MOTION for Leave to File Additional Briefing Regarding EEOC's First Motion to Compel Discovery in Response to Request for Production Number 14 by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 4/28/2016. (Attachments: # 1 Proposed Order, # 2 Exhibit A − Defs.' Sur−reply in Opp. to EEOC's 1st MTC Discovery in Resp. to RFP No. 14, # 3 Appendix to Defs.' Sur−reply, # 4 Exhibit A − Appellee's Brief Excerpts, # 5 Exhibit B − May 25, 2007 RFI, # 6 Exhibit C − 2007 New Hire Reports, # 7 Exhibit D − Pearl New Hire Report, # 8 Exhibit E − June 9, 2009 RFI, # 9 Exhibit 1 − An Art of War Lesson Applied to Mass Torts, # 10 Exhibit 2 − In re Vioxx Prods. Liability Litig., # 11 Exhibit 3 − Solorzano v. Shell Chem. Co., # 12 Exhibit 4 − Tyson Foods Inc v. Bouaphakeo)(Johnston, Michael) (Entered: 04/07/2016)

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04/08/2016 04/08/2016 04/20/2016 04/25/2016 04/29/2016 06/20/2016 07/08/2016 07/08/2016
07/22/2016
07/22/2016
07/26/2016 07/27/2016 07/28/2016 08/05/2016

276 ORDER granting 275 Motion for Leave to File Additional Briefing.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 04/08/2016)
277 SURREPLY to 246 First MOTION to Compel Discovery in Response to Request for Production Number 14, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (arrivera, 4) (Entered: 04/08/2016)
278 RESPONSE in Opposition to 274 Opposed MOTION for Leave to File Motion to Compel, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 04/20/2016)
279 Second REPLY in Support of 246 First MOTION to Compel Discovery in Response to Request for Production Number 14, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 04/25/2016)
280 REPLY to Response to 274 Opposed MOTION for Leave to File Motion to Compel, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Johnston, Michael) (Entered: 04/29/2016)
281 ORDER (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) (Entered: 06/20/2016)
282 STATUS REPORT by Equal Employment Opportunity Commission, filed.(Juge, Gregory) (Entered: 07/08/2016)
283 MOTION FOR RULING THAT POST−LOD APPLICANTS ARE ELIGIBLE AS § 706 CLASS MEMBERS by Equal Employment Opportunity Commission, filed. Motion Docket Date 7/29/2016. (Attachments: # 1 Proposed Order)(Juge, Gregory) (Entered: 07/08/2016)
284 Unopposed MOTION for Extension of Time for Defendants to respond to EEOC's Motion for Ruling that Post−LOD Applicants are Eligible as Sec. 706 Class Members by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 8/12/2016. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 07/22/2016)
285 ORDER Granting 284 Unopposed MOTION for Extension of Time for Defendants to respond to EEOC's Motion for Ruling that Post−LOD Applicants are Eligible as Sec. 706 Class Members by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC Bass Pro Responses due by 8/15/2016. EEOC Replies due by 9/2/2016.(Signed by Judge Keith P Ellison) Parties notified.(jguajardo, 4) (Entered: 07/22/2016)
286 NOTICE of Setting. Parties notified. Status Conference set for 8/5/2016 at 11:00 AM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (sloewe, 4) (Entered: 07/26/2016)
287 NOTICE of Resetting as to 286 Notice of Setting. Parties notified. Status Conference set for 8/5/2016 at 01:30 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. TIME CHANGE ONLY. (arrivera, 4) (Entered: 07/27/2016)
288 ORDER ; Motion Hearing set for all pending motions on 8/5/2016 at 01:30 PM in Courtroom 3A Houston before Judge Keith P Ellison).(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 07/28/2016)
Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 8/5/2016. EEOCs Mot. Quash Defendants 30(b)(6) Deposition (Doc. No. 228 ) is DENIED. The 30(b)(6) deposition of the EEOC will proceed; the parties can inform the Court if they wish the deposition to be court−supervised. EEOCs Mot. Compel Response to RFP No. 14 (Doc. No. 246 ) is STAYED pending the Courts consideration of Bass Pros briefing regarding the impact of Tyson Foods, Inc. v. Bouaphakeo et al on this case. The parties should confer and inform the Court of a proposed briefing schedule. EEOCs Mot. Protective Order to Protect Confidential Information (Doc. No. 245 ) is GRANTED IN PART AND DENIED IN PART as stated at the hearing. Bass Pros Motion for Leave to File Motion to Compel (Doc. No. 274 ) is GRANTED. Appearances: Michael W Johnston, Rebecca Cole Moore, Lovita T. Tandy, Gregory T. Juge, Connie Wilhite Gatlin.(Court Reporter: K. Metzger), filed.(arrivera, 4) (Entered: 08/10/2016)

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08/09/2016 08/09/2016 08/10/2016
08/11/2016 08/12/2016 08/14/2016 08/15/2016 08/15/2016 08/19/2016 08/19/2016 08/19/2016 08/21/2016

289 AO 435 TRANSCRIPT REQUEST by Michael W. Johnston for Transcript of Status Conference on 08/05/16 before Judge Ellison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (Johnston, Michael) (Entered: 08/09/2016)
290 AO 435 TRANSCRIPT REQUEST by EEOC / Gregory T. Juge for Transcript of Status conference, 8/5/2016, Judge Ellison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (Juge, Gregory) (Entered: 08/09/2016)
291 AO 435 TRANSCRIPT REQUEST by Michael W. Johnston for Transcript of 08/05/2016, Judge Keith P.Ellison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, (ERROR ) THIS REQUEST WAS DOCKETED TWICE, SAME REQUEST AS DKT.# 289. filed. (sroque, 4) Modified on 8/12/2016 (sroque, 4). (Entered: 08/10/2016)
292 Unopposed MOTION for Extension of Time to File Motion to Compel by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 9/1/2016. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 08/11/2016)
293 ORDER granting 292 Motion for Extension of Time to File Motion to Compel. (Signed by Judge Keith P Ellison) Parties notified.(gclair, 4) (Entered: 08/12/2016)
294 TRANSCRIPT re: Motion Hearing held on 8/5/2016 before Judge Keith P Ellison. Court Reporter/Transcriber K. Metzger. Release of Transcript Restriction set for 11/14/2016, filed. (kmetzger) (Entered: 08/14/2016)
295 Notice of Filing of Official Transcript as to 294 Transcript. Party notified, filed. (hcarr, 4) (Entered: 08/15/2016)
296 RESPONSE in Opposition to 283 MOTION FOR RULING THAT POST−LOD APPLICANTS ARE ELIGIBLE AS § 706 CLASS MEMBERS, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Johnston, Michael) (Entered: 08/15/2016)
297 MOTION to Set Schedule for Briefing on Tyson Argument by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 9/9/2016. (Attachments: # 1 Proposed Order, # 2 Exhibit A − E−mails)(Johnston, Michael) (Entered: 08/19/2016)
298 MOTION for Entry of Order re: Briefing Schedule Concerning Tyson by Equal Employment Opportunity Commission, filed. Motion Docket Date 9/9/2016. (Juge, Gregory) (Entered: 08/19/2016)
299 MOTION to Stay 30(b)(6) DEPOSITION OF EEOC PENDING COURT DECISION ON BRIEFING CONCERNING TYSON by Equal Employment Opportunity Commission, filed. Motion Docket Date 9/9/2016. (Juge, Gregory) (Entered: 08/19/2016)
300 First MOTION to Compel Discovery Responses by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 9/12/2016. (Attachments: # 1 Appendix, # 2 Exhibit A − 02/12/16 Letter from T. Bowne, # 3 Exhibit B − Pl.'s 2nd Am. Resp. to 1st RFP, # 4 Exhibit C − Pl.'s Resp. to 1st Interrogs., # 5 Exhibit D − Pl.'s Resp. to 2nd Disc. Requests and 1st RFA, # 6 Exhibit E − Defs.' 1st Interrogs, # 7 Exhibit F − Defs.' 1st RFP, # 8 Exhibit G − 10/30/15 Letter from L. Tandy, # 9 Exhibit H − 11/17/15 Letter from T. Bowne, # 10 Exhibit I − 12/09/15 Letter from L. Tandy, # 11 Exhibit J − 12/23/15 Letter from T. Bowne, # 12 Exhibit K − 01/20/16 Letter from L. Tandy, # 13 Exhibit L − 02/09/16 Letter from L. Tandy, # 14 Exhibit M − 02/09/16 Letter from L. Tandy, # 15 Exhibit N − 10/27/15 E−mail from G. Juge, # 16 Exhibit O − 10/20/15 E−mail from M. Johnston, # 17 Exhibit P − Excerpts from Pl.'s Initial Disclosures, # 18 Exhibit Q − Excerpts from Pl.'s 1st Interrogs., # 19 Exhibit R − Excerpts from Pl.'s 1st RFP, # 20 Exhibit S − Pl.'s Questionnaire, # 21 Exhibit T − Chart, # 22 Exhibit U − Excerpts from EEOC Compliance Manual, # 23 Exhibit V − Exceprts from Appellee's Resp. Br., # 24 Exhibit 1 − Letter from L. Tandy, # 25 Exhibit 2 − Letter from T. Bowne, # 26 Exhibit 3 − Letter from L. Tandy, # 27 Exhibit 4 − Letter from T. Bowne, # 28 Exhibit 5 − Letter from L. Tandy, # 29 Exhibit a − Butler v. State of La., # 30 Exhibit b − EEOC v. Albertson, # 31 Exhibit c − EEOC v.

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08/26/2016 08/26/2016 08/26/2016 08/29/2016 08/30/2016 08/31/2016 08/31/2016 09/02/2016 09/15/2016 09/15/2016
09/19/2016

BOK Fin., # 32 Exhibit d − EEOC v. Cintas, # 33 Exhibit e − EEOC v. Hotspur, # 34 Exhibit f − EEOC v. Kaplan, # 35 Exhibit g − EEOC v. Kroger, # 36 Exhibit h − EEOC v. Midwest Div. RMC, # 37 Exhibit i − EEOC v. Org. HBH, # 38 Exhibit j − EEOC v. Peoplemark, # 39 Exhibit k − EEOC v. Princeton, # 40 Exhibit l − EEOC v. Swissport, # 41 Exhibit m − Janko v. Fresh Mkt., # 42 Exhibit n − Robinson v. Cty. of San Joaquin, # 43 Exhibit o − Schiller v. City of New York, # 44 Exhibit p − Serrano v. Cintas, # 45 Exhibit q − Smartphone v. Apple, # 46 Exhibit r − Transverse v. Iowa Wireless, # 47 Exhibit s − U.S. v. Campos)(Johnston, Michael) (Entered: 08/21/2016)
301 ORDER denying 297 Motion; granting 298 Motion for Entry of Order.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 08/26/2016)
302 MOTION to Strike Conciliation Evidence from the Record by Equal Employment Opportunity Commission, filed. Motion Docket Date 9/16/2016. (Juge, Gregory) (Entered: 08/26/2016)
303 MOTION Order that Opposition to Defendant's First Motion to Compel is Not Due Pending Decison by the Court on EEOC's Motion to Strike Conciliation Evidence by Equal Employment Opportunity Commission, filed. Motion Docket Date 9/16/2016. (Juge, Gregory) (Entered: 08/26/2016)
304 ORDER granting 303 Motion for order that opposition to Defendant's first motion to compel is not due pending decision of the EEOC's motion to strike conciliation evidence.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 08/30/2016)
305 ORDER staying all discovery pending ruling on Tyson briefing; dismissing as moot 299 MOTION to Stay 30(b)(6) DEPOSITION OF EEOC PENDING COURT DECISION ON BRIEFING CONCERNING TYSON (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 08/30/2016)
306 MOTION for Lovita T Tandy to Withdraw as Attorney by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 9/21/2016. (Attachments: # 1 Proposed Order)(Tandy, Lovita) (Entered: 08/31/2016)
307 ORDER granting 306 Motion to Withdraw as Attorney. Attorney Lovita T. Tandy terminated.(Signed by Judge Keith P Ellison) Parties notified.(gkelner, 4) (Entered: 09/01/2016)
308 REPLY in Support of 283 MOTION FOR RULING THAT POST−LOD APPLICANTS ARE ELIGIBLE AS § 706 CLASS MEMBERS, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 09/02/2016)
309 MOTION for Samuel M. Matchett to Withdraw as Attorney by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 10/6/2016. (Attachments: # 1 Proposed Order)(Matchett, Samuel) (Entered: 09/15/2016)
310 RESPONSE in Opposition to 302 MOTION to Strike Conciliation Evidence from the Record, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − EEOC Compliance Manual 34.7(e)(2), # 3 Exhibit B − Excerpts from EEOC's Reply to Mot. to Quash Subpoenas, # 4 Exhibit C − 05−25−16 E−mail from G. Juge, # 5 Exhibit D − EEOC Compliance Manual 83.4, # 6 Exhibit E − Excerpts from Appellee's Br, # 7 Exhibit F − Excerpts from BPOW's Mot. to Quash Subpoenas, # 8 Exhibit G − Excerpts from 07/15/11 Hr'g Tr., # 9 Exhibit H − Excerpts from Appellee's Resp. to Pet. for Rehr'g, # 10 Exhibit I − Excerpts from EEOC's Ans. to Pet. for Permission to Appeal, # 11 Exhibit J − Excerpts from EEOC's Resp. to Mot. to File Tr. Under Seal, # 12 Exhibit K − Excerpts from EEOC's Mot. to Deem Conf. of Conciliation Process to Have Been Waived (Mach Mining), # 13 1 − EEOC v. Albertson's, # 14 2 − EEOC v. Amsted, # 15 3 − EEOC v. Dimensions, # 16 4 − EEOC v. Greater Metroplex, # 17 5 − EEOC v. Hearst, # 18 6 − EEOC v. Mach Mining (2012), # 19 7 − EEOC v. Mach Mining (2016), # 20 8 − EEOC v. Parker Drilling, # 21 9 − EEOC v. Presrite, # 22 10 − Hill v. Shoe Show)(Johnston, Michael) (Entered: 09/15/2016)
311 ORDER granting 309 Motion to Withdraw as Attorney. Attorney Samuel M Matchett terminated.(Signed by Judge Keith P Ellison) Parties notified.(gkelner, 4) (Entered: 09/19/2016)

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09/21/2016 09/21/2016 09/23/2016
09/26/2016 09/28/2016 09/29/2016 09/30/2016
09/30/2016 10/03/2016
10/04/2016 10/12/2016
10/13/2016

312 MOTION for Alexandra Navarre−Davis to Appear Pro Hac Vice by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/12/2016. (Navarre−Davis, Alexandra) (Entered: 09/21/2016)
313 ORDER granting 312 Motion to Appear Pro Hac Vice for Alexandra Navarre−Davis.(Signed by Judge Keith P Ellison) Parties notified.(gkelner, 4) (Entered: 09/22/2016)
314 MOTION Judgment on the Pleadings or Alternatively, Motion to Limit Discovery by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 10/14/2016. (Attachments: # 1 Appendix, # 2 Exhibit A − Excerpts from the 5th Cir. Op., # 3 Exhibit B − Map of Stores, # 4 Exhibit C − Excerpts from 08−05−16 Hr'g Tr., # 5 Exhibit D − Bass Pro's Rule 28(j) Letter, # 6 Exhibit E − EEOC's Rule 28(j) Letter, # 7 Exhibit F − Richardson − EEOC's Mot. in Limine, # 8 Exhibit G − Excerpts from 07−21−15 Hr'g Tr., # 9 Exhibit H − EEOC's Resp. to Pet. for Reh'g, # 10 Exhibit I − Cintas − EEOC's Resp. to Proposed Scheduling Plan, # 11 Exhibit J − Determination Letter, # 12 Exhibit K − Am. Comm'rs Charge, # 13 Exhibit L − Excerpt from 11−19−13 Hr'g Tr., # 14 Exhibit 1 − Roussell v Brinker, # 15 Exhibit 2 − Shaver v. Barrett)(Johnston, Michael) (Entered: 09/23/2016)
315 REPLY in Support of 302 MOTION to Strike Conciliation Evidence from the Record, filed by Equal Employment Opportunity Commission. (Navarre−Davis, Alexandra) (Entered: 09/26/2016)
316 MOTION FOR ORDER CLARIFYING THAT DEFENDANTS FILING IN ECF No. 314 IS NOT A MOTION AND, THEREFORE, NO OPPOSITION IS DUE PENDING DECISION BY THE COURT ON THE TYSON BRIEFING by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/19/2016. (Juge, Gregory) (Entered: 09/28/2016)
317 ORDER granting in part 316 Motion for Order of clarification.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 09/29/2016)
318 MOTION to Vacate 317 Order on Motion for Miscellaneous Relief,, MOTION for Clarification as to 317 Order on Motion for Miscellaneous Relief, ( Motion Docket Date 10/21/2016.) by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Proposed Order, # 2 Exhibit A − E−mails between M. Johnston and G. Juge, # 3 Exhibit B − 05/18/16 Letter from M. Johnston, # 4 Exhibit C − Excerpts from 08/05/16 Hr'g Tr., # 5 Exhibit D − E−mails between G. Juge and M. Johnston)(Johnston, Michael) (Entered: 09/30/2016)
319 Unopposed MOTION for Leave to File A Surreply In Opposition to EEOC's Motion to Strike Conciliation Evidence by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 10/21/2016. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 09/30/2016)
320 ORDER granting 319 Motion for Leave to File Surreply In Opposition to EEOC'S Motion to Strike Conciliation Evidence. Defendants shall have ten days from the date of this order to file a surreply not exceeding eight pages. The EEOC shall have 10 days from the filing of Defendants' sureply to file a sur−surreply not exceeding eight pages..(Signed by Judge Keith P Ellison) Parties notified.(jdav, 4) (Entered: 10/04/2016)
321 ORDER denying 318 Motion to Vacate September 29, 2016 Order and for Clarification. (Signed by Judge Keith P Ellison) Parties notified.(gclair, 4) (Entered: 10/04/2016)
322 ORDER. It has come to the Court's attention that the Southern District of Texas District Court EM/ECF and PACER systems will be unavailable due to system maintenance from 6:00 PM CDT on October 21, 2016 until 6:00 PM CDT on October 22, 2016. It is therefore ORDERED that the EEOC has until 10/22/2016 to file its response of no more than 25 pages. (Signed by Judge Keith P Ellison) Parties notified.(olindor, 4) (Entered: 10/12/2016)
323 SURREPLY to 302 MOTION to Strike Conciliation Evidence from the Record, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − 10/05/2016 Letter from M. Johnston to G. Juge, # 3 Exhibit B − EEOC v. Mach Mining, Doc. 22, # 4 Exhibit C − EEOC v. Bass Pro, Doc. 32, # 5

Case: 4:11-cv-3425 As of: 10/27/2017 02:09 AM CDT 32 of 36

10/13/2016
10/21/2016 10/24/2016 10/31/2016
11/01/2016 11/02/2016 11/10/2016 12/28/2016 01/03/2017 01/05/2017 01/06/2017 01/19/2017

Exhibit D − EEOCs Reply to BPOWs MTQ. Doc. 20 & Doc. 20−17), # 6 Exhibit E − Doc. 38 EEOCs Unopposed Mot. to Unseal Pleading (April 3, 2012), # 7 Exhibit F − Doc. 39 − Order Granting Motion to Unseal All Documents (April 5, 2012), # 8 Exhibit G − Decl. of Loretta Corprew dated October 11, 2016, # 9 Exhibit 1 − EEOC v. Parker Drilling Co., # 10 Exhibit 2 − Tesco Corp. v. Weatherford Intl, Inc.)(Johnston, Michael) (Entered: 10/13/2016)
324 Amended BRIEF in Opposition (Amended Surreply 323 ) re: 302 MOTION to Strike Conciliation Evidence from the Record by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Appendix, # 2 Exhibit A 10/05/2016 Letter from M. Johnston to G. Juge, # 3 Exhibit B − EEOC v. Mach Mining, Doc. 22, # 4 Exhibit C − EEOC v. Bass Pro, Doc. 32, # 5 Exhibit D − EEOCs Reply to BPOWs MTQ, Doc. 20 & Doc. 20−17, # 6 Exhibit E − Doc. 38 EEOCs Unopposed Mot. to Unseal Pleading (04/03/2012), # 7 Exhibit F − Doc. 39 − Order Granting Mot. to Unseal All Docs. (04/05/2012), # 8 Exhibit G Decl. of Loretta Corprew dated 10/11/2016, # 9 Exhibit 1 − EEOC v. Parker Drilling Co., # 10 Exhibit 2 − Tesco Corp. v. Weatherford Intl)(Johnston, Michael) (Entered: 10/13/2016)
325 BRIEF CONCERNING THE IMPACT OF TYSON FOODS by Equal Employment Opportunity Commission, filed. (Attachments: # 1 Exhibit 1)(Juge, Gregory) (Entered: 10/21/2016)
326 Supplemental REPLY in Support of 302 MOTION to Strike Conciliation Evidence from the Record, filed by Equal Employment Opportunity Commission. (Juge, Gregory) (Entered: 10/24/2016)
327 REPLY in Support of 314 MOTION Judgment on the Pleadings or Alternatively, Motion to Limit Discovery, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − EEOC Amicus Curiae Br. (Dukes v. Wal−Mart), # 3 Exhibit B − Br. of Respondents (Wal−Mart v. Dukes), # 4 Exhibit C − In re: Autozone)(Johnston, Michael) (Entered: 10/31/2016)
328 MOTION for Andrew B. Kingsley to Appear Pro Hac Vice by Equal Employment Opportunity Commission, filed. Motion Docket Date 11/22/2016. (Navarre−Davis, Alexandra) (Entered: 11/01/2016)
329 ORDER granting 328 Motion for Andrew Burke Kingsley to Appear Pro Hac Vice.(Signed by Judge Keith P Ellison) Parties notified.(jdav, 4) (Entered: 11/02/2016)
330 Second BRIEF CONCERNING THE IMPACT OF TYSON FOODS by Equal Employment Opportunity Commission, filed.(Juge, Gregory) (Entered: 11/10/2016)
331 MEMORANDUM AND ORDER (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) (Entered: 12/28/2016)
332 MEMORANDUM AND ORDER denying 283 MOTION FOR RULING THAT POST−LOD APPLICANTS ARE ELIGIBLE AS § 706 CLASS MEMBERS (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 01/03/2017)
333 STATUS REPORT by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Roussell v. Brinker)(Johnston, Michael) (Entered: 01/05/2017)
334 NOTICE of Proposed Protective Order Regarding Confidentiality re: Motion Hearing,,, by Equal Employment Opportunity Commission, filed. (Attachments: # 1 Proposed Protective Order Regarding Confidentiality)(Kingsley, Andrew) (Entered: 01/06/2017)
335 MOTION for Reconsideration of 331 Memorandum and Order ( Motion Docket Date 2/9/2017.), MOTION for Oral Arguments Hearing by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Appendix, # 2 Exhibit A − Excerpts from Appellee's Br., # 3 Exhibit B − Chart of Alleged "Inexorable Zeros", # 4 Exhibit C − EEOC v. Cintas − EEOC's Resp., # 5 Exhibit D − Wal−mart v. Dukes − Brief, # 6 Exhibit E − The Hazards of Dukes Law Rev. Art., # 7 Exhibit F − Robbing A Barren Vault Art., # 8 Exhibit G − Tyson Foods Law 360 Article, # 9 Exhibit H − EEOC MD 715 Excerpt, # 10 Exhibit I − EEOC MD 715 Instructions Excerpt, # 11 Exhibit J − Fish & Wildlife Census Excerpt, # 12 Exhibit 1 − WesternGeco v. ION Geohysical)(Johnston, Michael) (Entered: 01/19/2017)

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01/20/2017
01/23/2017 01/23/2017 01/24/2017 01/27/2017 01/30/2017
02/01/2017 02/09/2017 02/13/2017 02/21/2017
02/21/2017 02/27/2017

336 OBJECTIONS to 334 Notice (Other) , filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Defs.' Proposed Protective Order, # 3 Exhibit B − Redline comparing D's Proposed PO to P.'s Proposed PO, # 4 Exhibit C − Redline comparing P's Proposed PO Doc. 334−1 to Doc. 245−1, # 5 Exhibit D − 12/19/16 Letter from M. Johnston, # 6 Exhibit E − 01/04/16 E−mail from G. Juge, # 7 Exhibit F − Kaplan Confidentiality Stipulation, # 8 Exhibit G − Texas Roadhouse Confidentiality Order)(Johnston, Michael) (Entered: 01/20/2017)
337 NOTICE of Setting as to 302 MOTION to Strike Conciliation Evidence from the Record. Parties notified. Motion Hearing set for 1/30/2017 at 03:00 PM in Courtroom 3A Houston before Judge Keith P Ellison, filed. (arrivera, 4) (Entered: 01/23/2017)
338 Ex Parte MOTION for GREGORY T. JUGE to Withdraw as Attorney by Equal Employment Opportunity Commission, filed. Motion Docket Date 2/13/2017. (Juge, Gregory) (Entered: 01/23/2017)
339 ORDER granting 338 Ex Parte MOTION for GREGORY T. JUGE to Withdraw as Attorney (Signed by Judge Keith P Ellison) Parties notified.(olindor, 4) (Entered: 01/24/2017)
340 DESIGNATION of Timothy M. Bowne as attorney in charge of Equal Employment Opportunity Commission, filed.(Bowne, Timothy) (Entered: 01/27/2017)
Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 1/30/2017. EEOC's Motion to Strike Conciliation Evidence from the Record (Doc. No. 302 ) is GRANTED IN PART AND DENIED IN PART for the reasons stated on the record. The Motion is granted as to Doc. No. 119−16 (5/20/2010 letter), Doc. No. 120−6 (12/14/10 letter), and Doc. No. 164 at 37−45 (4/25/14 letter). The Motion is otherwise denied. EEOC's opposition to Defendant's First Motion to Compel Discovery Responses (Doc. No. 300 ) is due by 2/13/2017. Defendant's reply is due by 2/20/2017. Appearances: Michael W Johnston, Rebecca Cole Moore, Timothy M Bowne, Alexandra Navarre−Davis, Andrew Burke Kingsley.(Court Reporter: K. Miller)(Law Clerk: J. Solorzano), filed.(arrivera, 4) (Entered: 01/31/2017)
341 AO 435 TRANSCRIPT REQUEST by Michael W. Johnston for Transcript of Motion to Strike Conciliation Evidence Hearing on 01/30/17 before Judge Keith Ellison. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Johnston, Michael) (Entered: 02/01/2017)
342 RESPONSE in Opposition to 335 MOTION for Reconsideration of 331 Memorandum and Order MOTION for Oral Arguments Hearing, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Westlaw case, # 2 Exhibit Westlaw case, # 3 Proposed Order)(Bowne, Timothy) (Entered: 02/09/2017)
343 RESPONSE in Opposition to 300 First MOTION to Compel Discovery Responses, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Exhibit, # 6 Affidavit, # 7 Affidavit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Proposed Order)(Bowne, Timothy) (Entered: 02/13/2017)
344 REPLY in Support of 300 First MOTION to Compel Discovery Responses, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Watson − Plea Agreement, # 3 Exhibit B − Watson − Judgment, # 4 Exhibit C − Watson − Victim Impact Statement, # 5 Exhibit D − Watson − Hearing Tr., # 6 Exhibit 1 − EEOC v. Celadon, # 7 Exhibit 2 − EEOC v. Kaplan, # 8 Exhibit 3 − EEOC v. Peoplemark, # 9 Exhibit 4 − Janko v. Fresh Mkt., # 10 Exhibit 5 − Rutter v. Conseco, # 11 Exhibit 6 − Serrano v. Cintas)(Johnston, Michael) (Entered: 02/21/2017)
345 REPLY in Support of 335 MOTION for Reconsideration of 331 Memorandum and Order MOTION for Oral Arguments Hearing, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit A − Eagle v. EEOC Order, # 3 Exhibit B − Eagle v. EEOC Hearing Tr., # 4 Exhibit 1 − WesternGeco v. ION, # 5 Exhibit 2 − The Way Forward After Wal−Mart)(Johnston, Michael) (Entered: 02/21/2017)
346 SURREPLY to 300 First MOTION to Compel Discovery Responses, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3

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02/27/2017 02/28/2017 03/01/2017 03/09/2017
03/10/2017 03/13/2017 03/23/2017
03/27/2017 03/27/2017 03/28/2017 03/31/2017 03/31/2017

Exhibit)(Bowne, Timothy) (Entered: 02/27/2017)
347 NOTICE of Setting as to 246 First MOTION to Compel Discovery in Response to Request for Production Number 14, 300 First MOTION to Compel Discovery Responses. Parties notified. Motion Hearing set for 3/6/2017 at 03:00 PM in Courtroom 3A before Judge Keith P Ellison, filed. (rosaldana, 4) (Entered: 02/27/2017)
348 Unopposed MOTION to Reset March 6, 2017 Hearing (Doc. 347) by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 3/21/2017. (Attachments: # 1 Proposed Order)(Johnston, Michael) (Entered: 02/28/2017)
349 ORDER granting 348 Motion to Reset. Motion Hearing set for 3/23/2017 at 10:30 AM in Courtroom 3A before Judge Keith P Ellison.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 03/01/2017)
350 SURREPLY to 300 First MOTION to Compel Discovery Responses, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Appendix, # 2 Exhibit 1 − Crosby v. Blue Cross, # 3 Exhibit 2 − EEOC v. Dolgencorp, # 4 Exhibit 3 − EEOC v. FAPS, # 5 Exhibit 4 − EEOC v. Kroger, # 6 Exhibit 5 − EEOC v. Midwest Div. RMC, # 7 Exhibit 6 − EEOC v. Peoplemark, # 8 Exhibit 7 − EEOC v. Reed Pierce, # 9 Exhibit 8 − Schiller v. City of NY, # 10 Exhibit 9 − U.S. v. Holy Land Foundation, # 11 Exhibit 10 − U.S. v. State of LA)(Johnston, Michael) (Entered: 03/09/2017)
351 TRANSCRIPT re: Motion Hearing held on January 30, 2017 before Judge Keith P Ellison. Court Reporter/Transcriber Katleen Miller. Ordering Party Michael Johnston Release of Transcript Restriction set for 6/8/2017., filed. (kmiller, ) (Entered: 03/10/2017)
352 Notice of Filing of Official Transcript as to 351 Transcript. Party notified, filed. (hcarr, 4) (Entered: 03/13/2017)
Minute Entry for proceedings held before Judge Keith P Ellison. MOTION HEARING held on 3/23/2017. Bass Pro must provide a list of Ceridian data fields to the EEOC. The EEOC must make a reasonable effort to identify the Ceridian data fields that are relevant to the case. The EEOC must provide its statistical analysis to the Court for in camera review. The EEOC must provide census data to Bass Pro. The EEOC has 15 days to submit a revised protective order to Bass Pro. Once Bass Pro receives the EEOC's proposed protective order, Bass Pro has 15 days to respond. Appearances: Michael W Johnston, Rebecca Cole Moore, Larry Wilcher, Timothy M Bowne, Claudia Molina.(Court Reporter: Alcaraz), filed.(rosaldana, 4) (Entered: 03/23/2017)
353 AO 435 TRANSCRIPT REQUEST by Defendants/Michael W. Johnston for Transcript of Motion to Compel Hearing on 03/23/17 before Judge Ellison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Heather Alcaraz, filed. (Johnston, Michael) (Entered: 03/27/2017)
354 AO 435 TRANSCRIPT REQUEST by Michael W. Johnston for Transcript of Civil Hearing before Judge Keith Ellison on 3/23/2017. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Heather Alcaraz, filed. (sgonzalez, 5) Modified on 3/28/2017 (sroque, 4). (Entered: 03/27/2017)
355 AO 435 TRANSCRIPT REQUEST by TIM BOWNE for Transcript copy of Motion Hearing03/23/2017, Judge Keith Ellison. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Heather Alcaraz, filed. (sroque, 4) (Entered: 03/28/2017)
356 MOTION for Clarification as to Motion Hearing,, ( Motion Docket Date 4/21/2017.), MOTION to Expedite Consideration by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Exhibit A − E−mails between M. Johnston and T. Bowne, # 2 Exhibit B − Order in EEOC v. Kroger, # 3 Proposed Order)(Johnston, Michael) (Entered: 03/31/2017)
357 TRANSCRIPT re: Motion Hearing held on 3/23/17 before Judge Keith P Ellison. Court Reporter Heather Alcaraz. Ordering Party Michael Johnston. Release of Transcript Restriction set for 6/29/2017, filed. (halcaraz, ) (Entered: 03/31/2017)

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04/03/2017 04/05/2017 04/10/2017 04/14/2017 04/21/2017
04/25/2017 04/25/2017 04/26/2017
04/28/2017 05/02/2017 05/02/2017
05/08/2017 05/08/2017

358 Notice of Filing of Official Transcript as to 357 Transcript. Party notified, filed. (dhansen, 4) (Entered: 04/03/2017)
359 ORDER FOR EXPEDITED BRIEFING ; Motion−related deadline set re: 356 MOTION for Clarification as to Motion Hearing,, MOTION to Expedite Consideration Responses due by 4/14/2017. Replies due by 4/21/2017(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4) (Entered: 04/05/2017)
360 ORDER granting in part and denying in part 335 Motion for Reconsideration. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4) (Entered: 04/11/2017)
361 RESPONSE in Opposition to 356 MOTION for Clarification as to Motion Hearing,, MOTION to Expedite Consideration, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Bowne, Timothy) (Entered: 04/14/2017)
362 REPLY in Support of 356 MOTION for Clarification as to Motion Hearing,, MOTION to Expedite Consideration, filed by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC. (Attachments: # 1 Exhibit A − April 5, 2017 Letter from T. Bowne to Court, # 2 Exhibit B − April 2017 Email string between T. Bowne and M. Johnston, # 3 Exhibit C − Chart listing docs. not submitted in camera, # 4 Exhibit D − April 14, 2017 Letter from T. Bowne to Court, # 5 Exhibit 1 − EEOC v. Hotspur Resorts Nev., Ltd., # 6 Exhibit 2 − SmartPhone Techs. v. Apple, Inc.)(Johnston, Michael) (Entered: 04/21/2017)
363 NOTICE of Filing of Declarations re: 246 First MOTION to Compel Discovery in Response to Request for Production Number 14 by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Declaration of Ed Billingsley, # 2 Declaration of Chris Forrester, # 3 Declaration of James Laster, # 4 Declaration of Carol Thompson (f/k/a Carol Ferrara))(Johnston, Michael) (Entered: 04/25/2017)
364 Letter to Judge Ellison regarding important factual developments by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Ex. A − E−mails between M. Johnston and T. Bowne)(Johnston, Michael) (Entered: 04/25/2017)
365 ORDER granting 356 Motion for Clarification. The EEOC is required to submit to the Court for in camera review all documents responsive to Defendants' RFPs 4, 7, 8 that it is withholding on the basis of privilege. Such documents include, but are not limited to, the 79 documents identified in the Declaration of EEOC Acting Chair Victoria Lipnic. The EEOC has ten (10) days from the date of this Order to Comply. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4) (Entered: 04/26/2017)
366 Order of USCA − Per Curiam re: 203 Notice of Appeal ; USCA No. 15−20078, filed.(bcampos, 1) (Entered: 04/28/2017)
367 NOTICE of Filing Corrected Letter to Judge Ellison regarding important factual developments re: 364 Document by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Redlined version, # 2 Corrected version)(Johnston, Michael) (Entered: 05/02/2017)
368 MOTION for Interlocutory Appeal as to 331 Memorandum and Order by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. Motion Docket Date 5/23/2017. (Attachments: # 1 Appendix, # 2 Exhibit 1 − The Hazards of Dukes, # 3 Exhibit 2 − The Implications of Dukes, # 4 A − In re Autozone, # 5 B − Chicago Teachers Union v. Bd. of Educ., # 6 C − Davenport v. Charter Commc'ns, # 7 D − DuPree v. Kaye, # 8 E − EEOC v. Cintas, # 9 F − Rogers v. City of San Antonio)(Johnston, Michael) (Entered: 05/02/2017)
369 Order of USCA − Judgment re: 203 Notice of Appeal ; USCA No. 15−20078. It is ordered and adjudged that the judgment of the District Court is affirmed, filed.(mperez, 1) (Entered: 05/08/2017)
370 Order of USCA − Per Curiam re: 203 Notice of Appeal ; USCA No. 15−20078. We decline to undo the structure erected by Congress in the guise of interception seduced by judicially preferred policy choices. AFFIRMED, filed.(mperez, 1) (Entered: 05/08/2017)

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05/15/2017
05/16/2017 05/23/2017
07/13/2017 07/24/2017
07/24/2017
07/24/2017 07/25/2017 09/05/2017 09/05/2017

371 Letter to Judge Ellison containing information responsive to one of the Court's questions at the 03/23/17 hearing by Bass Pro Outdoor World, LLC, Tracker Marine Retail, LLC, filed. (Attachments: # 1 Table − List of Charges)(Johnston, Michael) (Entered: 05/15/2017)
372 RESPONSE to 364 Document , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Affidavit, # 3 Exhibit)(Bowne, Timothy) (Entered: 05/16/2017)
373 RESPONSE in Opposition to 368 MOTION for Interlocutory Appeal as to 331 Memorandum and Order, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order)(Bowne, Timothy) (Entered: 05/23/2017)
374 ORDER for Barry A. Hartstein to Appear Pro Hac Vice(Signed by Judge Keith P Ellison) Parties notified.(olindor, 4) (Entered: 07/13/2017)
375 Unopposed MOTION to Amend 171 Amended Complaint/Counterclaim/Crossclaim etc. by Equal Employment Opportunity Commission, filed. Motion Docket Date 8/14/2017. (Attachments: # 1 Proposed Order)(Bowne, Timothy) (Entered: 07/24/2017)
376 Agreed MOTION for Entry of Order re: proposed Consent Decree by Equal Employment Opportunity Commission, filed. Motion Docket Date 8/14/2017. (Attachments: # 1 Proposed Order proposed Consent Decree)(Bowne, Timothy) (Entered: 07/24/2017)
377 ORDER granting 375 Plaintiff EEOC'S Unopposed Motion to Amend. (Signed by Judge Keith P Ellison) Parties notified. (rosaldana, 4) (Entered: 07/24/2017)
378 CONSENT DECREE granting 376 Agreed MOTION for Entry of Order re: proposed Consent Decree. Case terminated on July 25th, 2017. (Signed by Judge Keith P Ellison) Parties notified. (rosaldana, 4) (Entered: 07/25/2017)
379 Joint MOTION for Extension of Time Selected Dates in Consent Decree by Equal Employment Opportunity Commission, filed. Motion Docket Date 9/26/2017. (Attachments: # 1 Proposed Order)(Bowne, Timothy) (Entered: 09/05/2017)
380 ORDER Extending Selected Dates in Consent Decree. Re: 379 Motion for Extension of Time.(Signed by Judge Keith P Ellison) Parties notified.(jguajardo, 4) (Entered: 09/06/2017)


[CONTENT] September 21, 2011 | the Equal Employment Opportunity Commission | EEOC | Bass Pro Outdoor World | the United States | District Court | the Southern District | Texas ||| Title VII of the Civil Rights Act | 1964 ||| EEOC | November of 2005 | Bass Pro | Hispanic | hourly ||| EEOC | Bass Pro | Title VII | 42 | U.S.C. | § ||| EEOC ||| the Civil Rights Act ||| EEOC ||| Keith Ellison ||| Bass Pro | EEOC | 9 | January 5, 2012 | the Federal Rules of Procedure ||| January 26, 2012 | EEOC | 12 | Black | Hispanic ||| EEOC | Bass Pro, Inc. ( | BPI | Tracker Marine | LLC | Tracker ||| EEOC | Ellison | Bass Pro's ||| March 5, 2012 | Bass Pro | Tracker | Bass Pro ||| May 31, 2012 | Bass Pro's | EEOC ||| 884 | S.D. Tex. | 2012 ||| EEOC ||| EEOC | one ||| 300-day | more than 300 days | EEOC | 706 | 707 ||| EEOC | 706 | 707 | 706 | EEOC ||| EEOC | February 2007 | April 2010 | EEOC | hourly ||| EEOC | 247 | second | July 20, 2012 |||  ||| Store General Managers | 201 | 184 | 18 | Hispanic | 5 | 24 | Hispanic | Black | Hispanic | Black | Hispanic ||| 706 | § | 707 |||  ||| Bass Pro | August 24, 2012 ||| October 25, 2012 | BPI | Tracker | Bass Pro | Tracker Marine Retail | LLC | Tracker Marine | EEOC ||| 2012 | 13040407 ||| March 18, 2013 | Bass Pro's ||| 706 ||| 707 ||| 2 | 5 |||  ||| 2013 | 1124063 ||| EEOC | third | April 15, 2013 ||| May 15, 2013 | Bass Pro ||| EEOC ||| October 2, 2013 ||| 2013 | 5515345 ||| June 13, 2014 | EEOC | fourth | one ||| fourth | Bass Pro’s ||| July 30, 2014 | EEOC | EEOC ||| 35 | 836 ||| November 17, 2014 | Bass Pro ||| 2014 WL | 6453606 ||| Bass Pro | July 30 | the U.S. Appellate Court | the Fifth Circuit | February 10, 2015 |||  ||| May 8, 2017 | the Fifth Circuit | Bass Pro’s ||| 826 ||| 791 ||| Patrick Higginbotham | Stephen Higginson | Leslie Southwick ||| July 24, 2017 | the next day ||| Bass Pro | an Office of Diversity and Inclusion | 10,500,000.00 | Hispanic ||| Pro Bass | EEOC ||| forty-two months | three and a half years ||| September 2017 | Bass Pro ||| April 20, 2020 ||| January 2021 [SUMMARY] On September 21, 2011, the Equal Employment Opportunity Commission (EEOC) filed this  lawsuit against Bass Pro Outdoor World in the United States District Court for the Southern District of Texas. The plaintiff brought the lawsuit for alleged violations of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC alleged that since November of 2005 Bass Pro engaged in a nationwide pattern or practice of denying employment to qualified Black and Hispanic applicants for hourly and salaried positions and that it retaliated against employees who opposed actions they perceived as unlawful or who otherwise complained or reported such incidents (including but not limited to sexual harassment and gender discrimination). The EEOC also alleged that Bass Pro destroyed or failed to preserve relevant records in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), such as employment applications, personnel files, tests, lists of job candidates, and efforts to contact the corporate complaint center. The EEOC sought back pay, economic compensation, compensation for emotional suffering, punitive damages, and reinstatement of behalf of those affected. It also sought injunctions to end the allegedly discriminatory and retaliatory practices and to create and preserve records in compliance with the Civil Rights Act. Unusually, for the EEOC, the lawsuit was based on a "Commissioner's Charge" rather than a complaint by an employee. The case was assigned to Judge Keith Ellison.

Bass Pro responded to the EEOC's 9-page complaint on January 5, 2012 with a motion to dismiss complaint under Rule 12(b)(6) of the Federal Rules of Procedure for failure to state a claim upon which relief can be granted. On January 26, 2012, the EEOC filed a 12-page amended complaint giving more factual detail for its allegations, such as statistics on the number of Black and Hispanic managers and another instance of retaliation. In this complaint the EEOC also added Bass Pro, Inc. (BPI), and Tracker Marine, LLC (Tracker), as defendants. Because the EEOC had filed a new complaint, Judge Ellison denied Bass Pro's motion to dismiss the original complaint as moot. On March 5, 2012, Bass Pro filed a new motion to dismiss seeking, among other things, not only dismissal of all claims based on a failure to state a claim on which relief could be granted, but also to have the claims against Tracker and Bass Pro, Inc. dismissed on jurisdictional and procedural grounds.

On May 31, 2012, the court granted Bass Pro's motion in part, giving the EEOC leave to amend the complaint. 884 F.Supp.2d 499 (S.D. Tex. 2012). The court found that the EEOC had made sufficient allegations to state the recordkeeping claim.  Because the EEOC had not identified even one particular individual for its retaliation claim, that claim was dismissed with leave to amend. The court ruled that the 300-day limitation (barring suits for conduct that occurred more than 300 days before a charge is filed with the EEOC) applied to both claims under § 706 and claims under § 707 (pattern or practice). The court also ruled that the EEOC could not proceed on a hybrid § 706 and § 707 claim--pattern or practice claims could not be brought under § 706, and the EEOC had to provide sufficient allegations for each type of claim. For those reasons the court restricted the EEOC's claims to those that fell within February 2007 and April 2010 and dismissed the EEOC's discriminatory hiring claims because the statistics on managers did not plausibly suggest a pattern or practice of hiring discrimination for the wider category of salaried and hourly positions, as opposed to just manager positions.

The EEOC filed a 247-page second amended complaint on July 20, 2012. The complaint greatly elaborated the factual details of the claims. The most notable additions were as follows: connecting the behavior of store lower-level management to a profile allegedly established by the owner of the companies at a meeting of Store General Managers, listing a total of 201 individuals (184 Black and 18 Hispanic) covering a range of states who were denied employment with details of their application efforts, identifying 5 targets of retaliation and narrating their attempts to complain about or correct unlawful activity, and providing statistic data from 24 stores across the country on the number of total Black and Hispanic employees as well as store-specific comparisons of percentages of Black and Hispanic Bass Pro employees to the percentage of Black and Hispanic employees in the county respectively (the comparisons involved manager and non-manager positions). The complaint did not explicitly differentiate §706 claims from §707 claims. The complaint also addressed jurisdictional issues.

Bass Pro filed another motion to dismiss for failure to state a claim on August 24, 2012. On October 25, 2012, the court dismissed the claims against BPI for lack of jurisdiction but deferred deciding jurisdiction over Tracker because Bass Pro had misidentified Tracker Marine Retail, LLC, as Tracker Marine and the EEOC hadn't had a full opportunity for discovery to establish jurisdiction. 2012 WL 13040407.

On March 18, 2013, the court granted Bass Pro's motion to dismiss in part, with leave to amend. Noting that the allegations did not constitute a prima facie case of discriminatory hiring under § 706, the court found them sufficient to state the claim. The court held the combination of statistics and anecdotes to be sufficient to state a §707 pattern or practice claim. The court dismissed retaliation claims for 2 of the 5 individuals. The record-keeping claim was still valid. 2013 WL 1124063.

The EEOC filed a third amended complaint on April 15, 2013 adding details for the retaliation claims that had been dismissed. On May 15, 2013, Bass Pro filed its response and a motion for summary judgment. The EEOC subsequently filed a motion for partial summary in its own favor, arguing that it had satisfied its duty to engage in conciliation before bringing a suit and that the court should not rule on that issue. On October 2, 2013, the court denied the plaintiff’s motion for partial summary judgment, holding that the issue was reviewable. 2013 WL 5515345.

On June 13, 2014, the EEOC filed its fourth amended complaint, correcting the name of one of the defendants. Because this was the only change, the parties agreed that the fourth amended complaint did not render Bass Pro’s motion for summary judgment moot. On July 30, 2014, the court denied this motion, reconsidering its denial of the EEOC’s motion for summary judgment and finding that the EEOC did meet the statutory requirements of conciliation. 35 F.Supp.3d 836. On November 17, 2014, the court allowed Bass Pro to file an interlocutory appeal. 2014 WL 6453606. Bass Pro appealed the July 30 order to the U.S. Appellate Court for the Fifth Circuit on February 10, 2015. The district court chose not to stay discovery pending the appeal.

On May 8, 2017, the Fifth Circuit affirmed the lower court’s decision to deny Bass Pro’s motion for summary judgment. 826 F.3d 791. The panel was made up of Judge Patrick Higginbotham, Judge Stephen Higginson, and Judge Leslie Southwick.

On July 24, 2017, the parties reached a settlement agreement, and the court entered a consent decree the next day. The consent decree required Bass Pro to reform its recruitment and hiring practices, provide anti-discrimination training, create an Office of Diversity and Inclusion, and pay a total of $10,500,000.00 to be distributed among the qualified Black and Hispanic applicants who had been denied employment at any of its stores nationwide. Pro Bass also had to report back to the EEOC. The consent decree was to be in effect for forty-two months (or three and a half years) after its date of entry, during which the court would retain jurisdiction.

In September 2017, the court granted a motion to extend the deadlines for Bass Pro having to complete certain tasks. As of April 20, 2020, there are no further entries in the docket since then, which suggests that the parties have been compliant with the consent decree so far. The court will presumably continue to retain jurisdiction until January 2021, when the consent decree expires.
