IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHE~ DIST~CT OF ILLINOIS

EASTE~ DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

~,~~ ~.~I~?~T7

COMMISSION,

CIVIL ACTION NO.

Plaintiff,

~/k¥ $ 8
) )

768

)

CUSTOM COMPANIES, INC. and

)

CUSTOM DISTRIBUTION NETWORK, INC., )

)

)

Defendants.

)

)

)

COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION

"-.-~ ~x~ "-’~

This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U~_S.C. § ~" 2000e et seq. ("Title VII"), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Catherine Copello ("Copello") and to a class of female employees who were adversely affected

by such practices and to provide appropriate relief to Copello for retaliation suffered for complaining of these unlawful practices. Plaintiff, the U.S. Equal Employment Opportunity Commission (the "Commission" or "EEOC"), contends Defendant, Custom Companies Inc. ("Custom Companies"), has engaged in a pattern or practice of discrimination against Copello and class of other female employees because of their sex, by subjecting them to a hostile and

abusive work environment, maintaining a hyper-sexualized work environment, and by failing to take prompt remedial action intended to eliminate the harassment after the Defendant became aware of such behavior, in violation of Title VII. EEOC further contends that when Copello

objected to such practices, Defendants Custom Companies, Inc. and Custom Distribution Network retaliated against her by demoting her, reducing her pay, terminating her, and failing to rehire her.
JURISDICTION AND VENUE 1. Jurisdiction of this court is invoked pursuant to 28 U.S.C. §§ 451,133t, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) and Section 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 (f)(1) and (3) and -6, and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. 2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Illinois, Eastern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(0(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Custom Companies, Inc. has continuously been and is now doing business in the State of Illinois and the city of Northlake and has continuously had at least fifteen (15) employees. Defendant Custom Distribution Network Inc. is an affiliate of Defendant Custom Companies which was doing business in the State of Illinois and the city of Northlake during the relevant period and had at least fifteen (t 5) employees. 5. At all relevant times, Defendants and each of them have continuously been
2

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).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Copello filed charges with the Commission alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least 1994, Defendant Custom Companies has engaged in a pattern or practice of unlawful employment practices, in violation of Section 703(a)(1) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a)(1) and -6. These practices include, but are not limited to, engaging in intentional discrimination against Copello and against a class of female employees by subjecting them to: a) pressure to "entertain" customers at so-called "gentlemen’ s" clubs or "strip"
clubs; b) company sponsored golf outings attended by female strippers; c) groping, sexual touching, requests for sex, graphic descriptions of sexual exploits; d) pornographic materials and videos displayed on computers; e) lewd sexual language, sexual propositions, and references to sex organs; f) and failing to take prompt remedial action intended to eliminate the harassment
after Custom Companies became aware of the illegal behavior, all in continuing violation of Section 703(a) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a) and -6. 8. Defendants have engaged in retaliation against Copello after she complained of sexual harassment, by reducing her pay, demoting her, terminating her, and failing to rehire her. 9. The effect of the practices complained of in paragraphs seven (7) and eight (8)

above has been to deprive Copello, and a class of female employees of equal employment opportunities and otherwise adversely affect their status as an employee because of their sex.
10. The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are intentional.
11. The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are done with malice or with reckless indifference to the federally protected rights of Copello, and a class of female employees.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Custom Companies, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of sex; B. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in retaliation for complaining about sex discrimination; C. Order Defendants to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices; D. Order Defendants to make whole Copello, and a class of female employees by providing compensation for past and future pecuniary losses, resulting from the unlawful employment practices described above and including backpay for Copello; E. Order Defendants to make whole CopelIo, and a class of female employees by
4

providing compensation for past and future non-pecuniary losses, including emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation;
F. Order Defendants to pay Copello, and a class of female employees punitive damages for its malicious and/or reckless conduct described, in amounts to be determined at trial;
G. Order Defendants and its successors to provide training to its officers, managers and employees regarding sexual harassment in the workplace;
Grant such further relief as the Court deems necessary and proper in the public interest; and
I. Award the Commission its costs in this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel
""~~N~llo Bre~an "" ’ Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
500 West Madison Street, Suite 2800 Chicago, Illinois 60661 (312) 353-7582

by law, except as provided by local rules of oourt. Thi?form, approtved by the Judircial ~onference of the United States in $¢plember 1 ~74, is requir%d ~;rirtl

use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

DEFENDANTS JUDGE

u.s. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

CUSTOM COMPANIES, INC. and

CUSTOM DISTRIBUTION NETWORK, INC.
t&GISTR?,TE JUDGE KEY

(b) County of Residence of First Listed Plaintiff (EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed

Cook

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(¢) Attorney’s (Firm Name, Address, and Telephone Numbe0 Noelle C. Brennan (312) 353-7582 Equal Employment Opportunity Commission 500 W. Madison, Suite 280t) Chicago, Illinois 60661
Ii. BASIS OF JURISDICTION (Piace an "x" in one Box Only)

X 1 U.S. Oovernment Plaintiff

[3 3 Federal Question (U.S. Government Not a Party)

|vl ~ I

Z ~ 7i~ 7 Attorneys(If Known)

Diane E, GlanDs (312) 558-4269

Foley & Lardner

Three First National Plaza

70 W. Madison St., 4P’ Floor

ChicaRo. Illinois 6_0_602

._

~

L"~ ,~:~ [’Z.’)

i:’)’L~

i,!~ ! ::-7. ..,:. :~i 3# ~ ~, ’:~ ¢:i

III. CITIZENSHIP OF PRINCIPAL PARTIES.(~Iace ~’" in-O.fi~’ox for Phi,

(For Diversity Cases Only)

7S:~ and .O,,n~e Box"~’~ L~ endant)

DEF

~ , ,:.z~, f,_’-~ DE

Citizen of This State [3 1 [] 1 Incorporated oFPrincilSal:Place ~:~ 4 [] of Business In This Slate

[] 2 U.S. Government Defendant

[] 4 Diversity (indicate Citizenship of Parties in Item IID

Citizen of Another State [] 2 [] 2 Incorporated and Principal Place [] 5 of Business In Another State

Citizen or Subject of a [3 3 [] 3 Foreign Nation Foreign Coun.try ...............

[] 6 []

IV. NATURE OF SUIT CONTRACT

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

FORFEITURE/PENALTY .... BANKRUPTCY

OTHER STAT.U. ~TES

[] Ii0 InSurance
[] 120Marine [] 130 Miller Act [] 140 Negotiable Inslrumenl
~ 150 Recovery of Overpayment & Enforcement of
[3 -]~9,.~eJeOJc~e Act ~ 152 Recove~ of Defaulted
Studem ~aas
(ExcL Voter, s) U 153 Recove~ of Overpayment
of Veter~’s Benefits ~ 160 Stockholder’ Suits ffi 190 Othergonlraet ~ 195 C~ntraet Product Liability

PERSONAL INJURY
[] 310 Airplane [] 315 Airplane Product
Liability 320 Assault, Libel &
Slander [] 330 FederalEmployers’
Liability [] 340 Marine
[] 345 Marine Product Liability
[] 350 Motor Vehicle [] 355 Motor Vehicle
Product Liability [] 360 Other Personal

REALPROPERTY

CIVIL RIGHTS

[] 210 Land Condemnation v1 220 Foreclosure
[] 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability
[] 290 All Other Real Property

X~ 444412VEomtpinlogyment
[] 443 Housing/ Accommodations
[] 444 Welfare [] 440 Other Civil Rights

PERSONAL INJURY [] 362 Personal Injury--
Med. Malpractice [] 365 Personal Injury --
Pmdu¢l Liability [] 368 AsbeslosPersonal
Injury Product Liability PERSONAL PROPERTY [] 370 Other Fraud [] 371 Truth in Lending [] 380 Other Personal Property Damage [] 385 Property Damage Product Liability
PRISONER PETITIONS
[] 510 Motions to Vacate
Sentence
Habeas Corpus: [] 530 General ~2 535 Death Penalty [] :540 Mandamus & Olher [] 550 Civil Rights [] 555 PrisonCondilion

[] 610 Agriculture [] 620 Other Food & Drug [] 625 Drug Related Seizure
of Property 21 USC [] 63(t Liquor Laws [] 640 R.R. &Truck [] 650 Airline Kegs. [] 660 Occupational
Safety:Health [] 690 Other
LABOR
[] 7 t 0 Fair Labor Standards Act
[] 720 Labor/Mgmt. Relations
[] 730 Labor/Mgmt.Reporting & Disclosure Act
[] 740 Railway Labor Act
[] 790 Other Labor Litigation
[] 791 Empl. Rot, ln¢. Security Act

[] 422 Appeal 28 USC 158 [] 400 State Reapportionment

[] 4 I0 Antitrust

[] 423 Withdrawal

~2 430 Banks and Banking

28 USC 157

[] 450 Commerce/[CC Rates/el

PkOPERTY RigHTS

[] ~60 Deportation [] 470 Racketeer Influenced an,

[] 820 Copyrights
[] 830 Patent [] 840 Trademark

Corrupt Organizalions [] 810 Selecgve Service
O 850 Securities/Commodities/ Exchange

~0OAi2

SECVRIT~[]

875

Customer Chatlenge 12 USC 3410

[] 861HIA(I395ff) [] 862 Black Lung (923) [] 863 DIWC/D1WW (405(g)) [] 864 SSID Title XV[ [] 865 RS[ (405(g))

[] 891 Agricultural Acts [] 892 Economic Stabilization [] 893 Environmental Matters [] 894 Energy Allocation Act [] 895 Freedom of
Information Act

FEDERAL TAX SUITS

[] 900 Appeal of F~ Determination

Under Equal Access to

[] 870 Taxes (U.S. Plaintiff

Justice

or Defendant)

[] 950 Constitutionality of

State Statutes

[] 871 lRS--Third Party

13 890 Other StatntoP2 Actions

26 USC 7609

V. ORIGIN
X 1 Original Proceeding

(PLACE AN "X" IN ONE BOX ONLY)

V1 2 Removed from State Court

[] 3 Remanded from Appellate Court

Transferred from [] 4 Reinstated or [3 5 (speacniofyth)er district
Reopened

Appeal to District

[3 6 Multidistrict [3 7 JudgMeafgriostmrate

Litigation

Judgment

VI. CAUSE OF ACTION (Cite the U.S. CDivoilnoSttcaittuetjeuruisnddicetironwahl sitcahtuyteosuunaleressfdiilvinergsitayn.)d write brief statement of cause.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Tille VIi"), and Title I of tbe Civil Rigbts Act of 1991, 42 U.S.C, § 198 t a, tu correct unlawful employment pracliees on the basis of sex.

VII. REQUESTED IN [] CHECK IF THIS IS A CLASS ACTION

COMPLAINT:

UNDER KR.C.P. 23

(See

VIII. RELATED CASE(S) instructions):

IF ANY

JUDO

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

X Yes [] No

DOCKET NUMBER

~[Gj~NATURE~F ATTORNEY OF RECORD

FOR OFFICE ~OSE ONLY

’

In the Matter of

UI,.rED STATES DISTRICT COUK. NORTHE~ DIST~CT OF ILLINOIS
Eastern Division

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
V.
CUSTOM COMPANIES & CUSTOM DISTRIBUTION NETWORK, INC.

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FOR:

U.S. EQUAL EMPLOYMENTQPPORTUNITY COMMISSION

Ill

I II

III Ill

r, ,, ^ ~ (A) ......

.._/

NNo£eMlleEC. Brennan

~

Equal Employment Opportunity Commission
STREET ADDRESS
500 W. Madison~,,S..uite 2800
CLTy/~TAT~ZIP
Chicago, IL 60661

NE

¯ He

(.v)
son

,..~ ..,

, "i ,, FE"~E4m1p..l.o. },ment Opportunity Cor/mli~on..-~_

50fl W. Madison~ Suite 2800

~hicago, IL 60661

L1EP2H)ON3E5NU3M-B7E5R82
IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDC No. 06228901
MEM.ERO’~LE~? ~ES ~ NO

I;~;]

(312) 353-8551.
IDENTIFICATION N~MBER (SEE ITEM 4 ON R6VERSE}
MAREDOC NEoR. 0O118,~75<89~’LO^R"E:S ..i...~. 0 L .......

TRIAL A~ORNEY?

YES

~ ’, NO

TRIALA~ORNEY?

YES

~

NO

(c)
SIGNA~RE
NAME

SIGNATU~ NAME

(D)

STREET ADD~S CI~Y/sT~T~ZIP TELEPHONE NUMBER iDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

S~RE~ ADDRESS CiTY/STAT~ZIP TELEPHONE NUMBER IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

DESIGNATED AS LOCAL COUNSEL?

DESIGNATED AS LOCAL CO~SEL7

 </s> FOR THE NORTHERN DISTRICT OF ILLINOISf.:

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff,
and
CATHERINE COPELLO and ALLISON KENNEDY,
Plaintiffs-Intervenors,

Civil Action No. 02 CV 3768 Judge Leinenweber

CUSTOM COMPANIES, INC. and CUSTOM DISTRIBUTOR NETWORK, INC.

Defendants,

PLAINTIFF S-INTERVENORS’ COMPLAINT

Plaintiffs-hatervenors Catherine Copello ("Mrs. Copello") and Allison Kennedy ("Mrs.

Kennedy"), through their attorneys, Barlow, Kobata & Denis, complain against Defendants The

Custom Companies, ]ilc. and Custom Distribution Network, Inc., as follows:

COUNT l VIOLATIONS OF TITLE VII JURISDICTION AND VENUE

1. This action is brought pursuant to Title VII of the Civil Rights Act of 1.964, 42

U.S.C. §2000e, et. seq., as mnended by the Civil Rights Act of 1991 ("Title VII").

2.

This Court has subject matter jurisdiction under 28 U.S.C. §§1331 and 1343, and

42 U.S.C, §2000e-5(t)(3). 3. Venue of this action properly lies in the Northern District of Illinois, Eastern

Division, pursuant to 42 U.S.C. §2000e-5(I)(3) and 28 U.S.C. §1391(b) insofar as Defendants have their principal place of business in this distriAct.substantial part of the alleged events giving rise to the claims occurred in this District.

PARTIES

Defendants were at all relevant times incorporated in Illinois with their principal

place of business located at 317 West Lake Street, Northlake, Illinois.

5.

At all relevant times, Defendants have continuously been and are employers in an

industry affecting commerce within the meaning of Section 701 (b) and (h) of Title VII, 42 U.S,C.

§ 2000e-(b) and (h) and employ more than 15 persons.

6.

Mrs. Copello is a female citizen of the United States and is domiciled and resides

in the Northern District of Illinois.

7.

Mrs, Copello was hired by Defendant Custom Companies, Inc. in October, 1994.

She worked as a sales representative for Defendant until she was discharged on November 16,

1999.

8.

Mrs, Kennedy is a female citizen of the United States and is domiciled and resides

in the Northern District of Illinois.

9. Mrs. Kennedy was hired by Defendant Custom Companies, Inc. in approximately

May 1998. She worked as a sales representative for Defendant until she was discharged in

approximately November 1998. EEOC ADMINISTRATIVE PROCEDURE

10. Mrs. Copello has fulfilled all conditions precedent to the institution of this lawsuit

under Title VII. She filed a Charge of Discrimination with the Equal Employment Opportunity 2

Commission ("EEOC") on January 14, 1999, Charge No. 210991142, alleging that she and a class of other females had been subjected to sex discrimination, sex harassment, discriminatory terms and conditions of employment, unequal pay, and retaliation.
11. Mrs. Copello filed a First Amended Charge of Discrimination with the EEOC on November 22, 1999, against The Custom Companies alleging retaliation for having opposed unlawful employment practices involving sex discrimination and sex harassment and because she participated in EEOC proceedings and protested to the EEOC about the defendant’s discriminatory practices.
1.2. Mrs. Copello filed a Second Amended Charge of Discrimination with the EEOC on April 26, 2000 against The Custom Companies and Custom Distribution Network on April 26, 2000, alleging sex discrimination and retaliation.
13. Mrs. Kennedy’s claims involving sex discrimination irtcluding sexual harassment, discharge, and retaliation, arise out of similar discriminatory treatment in the same time frame as alleged in Mrs. Copello’s charges of discrimination.
14. On May 28, 2002, the EEOC filed a Complaint against the defendants Custom Companies, Inc. and Custom Distribution Network, Inc, in Case NO. 02 CV 3768 based on the Charges of Discrimination Copello had previously filed with the EEOC.
STATEMENT OF CLAIMS 15. At all pertinent times Mrs, Copello and Mrs. Kennedy satisfactorily performed t~eir job duties with Defendants. 16. During her employment Mrs. Copello was personally subjected to sexual harassment in the form of unwanted sexual advances, propositions for sex, comments and inquiries
3

about her sex life, and a discriminatory hostile working enviromaaent. The sexual harassment was

sufficiently severe or pervasive as to affect her ability to perform her job.

17. Defendants’ custom and practice was to maintain a sexually hostile and abusive

work enviromnent for Mrs. Copello and other female employees because of their sex and in

violation of Title VII. Sexual harassment was systematic and part of Defendants’ regular operating

policy. Mrs. Copello, Mrs. Kennedy, and other females were subjected to sex-based insults,

threats, sexually demeaning remarks, verbal and physical intimidation, lewd suggestions, and

pornography including, but not limited to the following conduct, all of which was either reported

to Defendants’ management, done in the presence of Defendants’ management and officers, or

otherwise known to Defendants:

a. unwelcome groping and touching of a sexual nature;

b. verbal comments of a sexual nature by co-workers, managers, and officers;

c. sexually degrading jokes by co-workers, managers and officers;

d, sex objects left on the desk of female employees;

e. foul and vulgar language derogatory of females and the female anatomy;

f.

using strippers at company sponsored events, including company dilmers and golf

outings to "entertain" customers, employees, managers, and officers of

Defendants;

g. allowing co-workers to flaunt pornographic and obscene materials, for example,

brochures and literature about penis size, penis pumps, and sex toys;

h. encouraging co-workers and managers to entertain customers and employees at

strip clubs like the "Crazy Horse II";

4

i. encouraging employees to read pornography during training sessions; and j. managers and officers conducting staff meetings while using and/or tolerating
sexually derogatory and demeaning language about women, the female anatomy, and sexual practices. 18. During her employment, Mrs. Kennedy was personally subjected to multiple acts of sexual harassment and sex discrimination, including, ~br example, a. having her breasts and butt groped and grabbed by her supervisor and the VicePresident of sales Mike Malacr; b. having a male employee put his hand up her skirt; c. vulgar language, including constant inquiries from male officers and managers about "did you luck your boyfriend?," "how do you fuck your boy~riend?w, h..a..t positions did you use?," "were you on top?," "did you give him a blow job?," "who are you sleeping with?, .w...hich way are you doing it?," "are you using your mouth or your butt?," and "did you get any last night?"; d. vulgar language about females being "cunts"; e. vulgar language by the male officers, managers, and co-employees about the size of their "penis," "instruments," and "dicks" and how much "head" the males received, who they were screwing, how they were having sex, and what positions they were using; f. having Maher, the Vice-President of Sales, tell her she should entertain her customers at the Crazy Horse, a strip club or "gentlemen’s club;" that to get customers she should do whatever it took, including sleeping with customers, and
5

"giving head" to the customers, and that, if she let the customers grab her under the table, she might get more freight business, and that if the female sales representatives "put out" to the customers, the females would get more business. 19. Although Mrs. Kennedy told Maher, the Vice-President of Sales, not to grab or touch her and to keep his hands off of her, Maher laughed, ignored her requests, and continued to grab her. Although Mrs. Kennedy told Maher not to talk to her in a vulgar sexual way, two, or three times a week on the telephone he made vulgar sexual comments. During weekly sales meetings, the male sales representatives, Maher, and Perry Mandera, the Custom Companies President, made vulgar sexual comments and suggested how all the representatives should entertain their customers at the Crazy Horse "gentlemen’s club." During those sales meetings, the sales representatives were instructed not to put Crazy Horse expenses on their corporate credit cards, and told to instead use company supplied vouchers or "funny money." 20. Defendants have discriminated against Mrs, Copello and Mrs. Kennedy in their terms and conditions of employment and pay because of their female sex in violation of Title VII. They were subjected to severe or pervasive sexual harassment, which interfered with the terms and conditions of their employment. They were discriminatorily compensated less than their male coworkers, and deprived of job assignments and advancement due to their gender. 21. Because of their sex, male employees were given better compensation, pay, benefits, and "perks" than Plaintiffs. Because of their sex, male employees were given better benefits and assignments, including golf outings with customers, taking customers on trips to Las Vegas, and having house accounts assigned to them. 22. For example, Mrs. Copello was assigned a territory on account of her sex that was
6

less lucrative than her male co-workers. Also, Mrs. Copello’s bonus plan was changed during her employment on account of her sex, which resulted in her 1hale co-workers receiving substantial bonuses and her receiving none.
23. Mrs. Copello and Mrs. Kennedy complained to Defendant Custom Companies about being subjected to a sexually hostile and abusive work environment and alleged sex discrimination. Despite their complaints, Defendant failed to adequately investigate, remedy and correct the sex harassment and sex discrimination, and take prompt corrective action.
24. Plaintiffs opposed unlawful employment practices. Plaintiffs complained to Defendant Custom Companies about alleged sex discrimination. They complained to Defendant Custom Companies about alleged sexual harassment. In January 1999, The Custom Companies became aware flaat Mrs. Copello filed a charge of discrimination with the EEOC atleging sex discrimi~ation.
25. Because Mrs. Copello opposed unlawful employment practices, complaii~ed to Defendant Ct~stom Companies about alleged sex discrimination, complained to Custom Companies about alleged sexual harassment, and filed a Charge of Discrimination with the EEOC, Defendant Custom Companies retaliated against her in violation of Title VII and discharged her.
26. After Mrs. Copello filed a charge of discrimination with the EEOC regarding unlawful discrimination, opposed unlawful employment practices, and complained about unlawful sex discrimination, Defendant’s President Perry Mandera told Mrs, Copello that she should withdraw her charge of discrimination or "things would get ugly," and "you’ll never work in this business again."
27. The acts of retaliation by Defendant Custom Companies against Mrs. Copello 7

included discriminatory disciplirte, harassment, a reduction in her pay, discriminatory job assignments and discharge.
28. Mrs. Kennedy complained to the Custom Companies’ managers and officers about being sexually harassed. Shortly after complaining, Mrs. Kennedy was fired, Mrs, Kennedy was retaliated against and terminated for complaining about sexual harassment in violation of Title VII.
29. Because Mrs. Kennedy complained about unlawful employment practices, sex harassment, and sex discrimination, Defendant Custom Companies retaliated against her in violation of Title VII and discharged her.
30. The discriminatory acts of Defendants, their agents and managers were deliberate, intentional, wanton, and malicious, and were done with malice or with reckless indifference to the civil rights of Mrs. Copello and Mrs. Kennedy and entitle Mrs. Copello and Mrs. Kennedy to compensatory and punitive damages. The acts complained of herein were ratified, authorized or permitted by Defendants and their management were unlawful and violated Title VII.
31. Because of Defendants’ condt~ct, Mrs.Copello and Mrs. Kennedy suffered humiliation and tangible losses, including the deonfiajol b opportunities, promotions and ultimately termination.
32. Because of Defendants’ discriminatory customs and practices, Mrs. Copello and Mrs. Kennedy have suffered and continue to suffer substantial tosses in earnings, benefits, and other terms and conditions of employment.
PRAYER FOR RELIEF WHEREFORE, Mrs, Copello and Mrs. Kennedy, respectfully request that this Court enter judgment in their favor and request that:
8

The Court declare, decree, and adjudge that Defendants have violated Title VII; Grant an injunction against Defendants and their officers, agents, and managers from violating Title VII; Enjoin the Defendants and their officers, agents, and managers to comply with Title VII and refrain from discriminating because of sex and retaliating and interfering with their rights and protections under Title VII and awarding appropriate equitable relief; Enter appropriate injunctive relief awarding Plaintiffs the backpay, frontpay, wages, employment benefits, and other compensation that was denied or lost; Order the Defendants to pay Plaintiffs compensatory and punitive damages in an amount sufficient to punish Defendants for their past discrimination and to deter them from continuing with their discriminatory practices; Award Plaintiffs all pre-judgment interest to which they are entitled; Award Plaintiffs their reasonable attorney’s fees and costs; artd Award such other and further relief as is jt~st and appropriate, including nominal damages.

JURY TRIAL

A jury trial is demanded on all counts which are triable by a jury.

Dated: August 14, 2002

Respectfully submitted,

’ rty Deiais Daniel R. Madock Maureen K. Feldman BARLOW, KOBATA & DENIS 222 South Riverside Plaza, Suite 1410 Chicago, Illinois 60606 (312) 648-5570
Attorneys for Catherine Copello and Allison Kennedy

10

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
CATHERINE COPELLO, ALLISON KENNEDY,
Plaintiff-lntervenors,

NO. 02 C 3768 Hon. Judge Leinenweber

CUSTOM COMPANIES, INC. CUSTOM EXECUTIVE GROUP, INC., AND CUSTOM DISTRIBUTION NETWORK, INC
Defendants.

NOTICE OF FILING
TO: Bennett Epstein Diane E. Gianos Foley & Lardner 321 N. Clark, Suite 2100 Chicago, Illinois 60610
Martin K. Denis Daniel Madock Barlow, Kobata & Denis 222 S. Riverside Plaza, Suite 1410 Chicago, illinois 60606

Pursuant to the Court’s Order of Fcbruary 24, 2004, PlaintiffEEOC is filing that attached First Amended Complaint in the United. States District Court for thc Northern District of Illinois on March 10, 2004.
Trial Attorney United States Equal Employn~ent Opportuaaity Cm~mission 500 West Madison Street, Suite 2800 Chicago, IL 60661 (312) 886-9078
2

CERTIFICATE OF SERVICE
Richard J. Mrizek, an attorney, hereby certifies that she caused a copy of the foregoing Notice of Filing and Appearance to be mailed, postage pre-paid, on March 4, 2004, to counsel of record at the following address:
Bemlett Epstein Diane E. Gianos Foley & Lardner 321 N. Clark, Suite 2100 Chicago, Illinois 60610
Martin K. Denis Maureen K. Fcldman Barlow, Kobata & Denis

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff;
CATHERINE COPELLO, ALLISON KENNEDYs
Plaintifl:Intervenors,

NO. O2 C 3768 Hon. Judge Leinenweber

v.

CUSTOM COMPANIES, INC. CUSTOM EXECUTIVE GROUP, INC., AND CUSTOM DISTRIBUTION NETWORK, INC
Defendants.

FIRST AMENDED COMPLAINT NATURE OF THE ACTION
This is an action under Title VII of the Civil Rights Act of 1964, as amended., 42 U.S.C. § 2000 et seq, ("Title VII"), and Title [ of the Civil Rights Act of 1991,42 U.S.C. § 1981a, to correct url[awful employment practices on the basis of sex and to provide appropriate relief to Catherine Copello ("Copello") and to a class of female employees who were adversely affected by such practices and to provide appropriate relief to Copello for the retaliation suffered for complaining of these unlawful practices. Plaintiff, the U.S. Equal Employment Opportunity Commission (the "Commission" or "EEOC"), contends De£endants, Custom Companies Inc. ("Custom Companies") and Custom Executive Group, In~. ("Custom Executive Group"), have engaged ~n a pattern or practice ofdiscrimiuation against Copello and crass of other female employees because of their sex, by subjecting them to a hostile and abusive work envirom~ent,

maintaining a hyper-sexualized work environment, and by failing to take prompt renledial action intended to elilninate the harassment after the Defendant became aware of such behavior, in violation of Title VII. EEOC further contends that when Copello objected to practices, Defendants Custom Companies, Inc. and Custom Distribution Network retaliated against her by demoting her, reducing her pay, terminating her and failing to rehire her.
JURISDICI~ION AND VENUE 1. Jurisdiction of this conrt is invoked pursuant to 28 U.S.C. § § 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(0(I) and (3) and Section 707 of Title VII of the Civil Rights Act of 1991,42 U.S.C. § 2000e-5(f)(1) and (3) and 6, and. Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Illinois, Eastern Division.
PARTIES 3. Plaintiff; the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the adnainistration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(0(1) and (3). 4. At all relevant times, Defendant Custom Companies, Inc., has conlinuously been and is now doing business in State of illinois and the city of Northlake mad has continuously had at least fifteen (151) employees, Defendant Custom Executive Group, Inc., has continuously been and is now doing business in State of Illinois and the city o:f Northl’ake and has continuously had at ]east fifteen (15) employees. Defendant Custom Distribution Network, Inc., is an affiliate of

Defendant Custom Companies which was doing business in the State of Illino{s and the city of Noah.lake during the relevaat period and had at least fifteen (15) employees.
5. At all relevant times, Defendants have continuously been employers engaged in an industry affecting commence within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-(b), (g) and (h).
_S_TATEMENT OF CLAIMS 6. More than thirty days prior to the institutions of this lawsuit, Copello f~led charges with the Commission alleging violations of Title VI1 by Defendants. All conditions precedent to the institution of this lawsuit have been ful filled. 7. Since at least 1994, Delbndants Custom Companies and Custom Executive Group, as a single employer, have engaged in a pattern or practice of unlawful ~aployment practices, in violation of Section 703(a)(1) and, Sections 706 and 707 of Title VII, ,~2 U.S.C. § 2000e-(a)(1) and 4~2 U.S.C. §§2000e-5, 2000e-6. These practices include, but are ~mt limited to, engaging in intentional discrimination against Copello and against a class el~ female employees by subjecting them to: a) pressure to "entertain" the customers at so-called "gentlemen’s" clubs or "strip"
clubs; b) company sponsored golf outings attendcd by female strippers; c) groping, sexual touching, requcsts for sex, graphic descriptions of sexual exploits; d) ponaographic matcrials and videos displayed on con~tputers; e) lewd sexual langtiagc, sexual propositions, and referencc~ to sex organs;
0 and failing to take prompt remedial action intended to eliminate the harassment after Custom Companies became aware of the illegal behavior, all in continuing violation of Section 703(a)(1) and, Sections 706 and 707 of Title V1r, 42 U.S.C. §

2000e-(a)(1) and 42 U.S.C. §§2000e-5, 2000e-6. 8. Defendants have engaged in retaliation against Copello after she complained of sexual harassment, by reducing her pay, demoting her, terminating her, and failing to reh~re her. 9. The effect of the practices complained of in paragraphs seven (7) and eight (8) above has been to deprive Copello, and a class ol" female employees of equal employl~ent opportunities and otherwise adversely affect their status as an employee because of their sex, 10, The unlawful employment practices complained ofm paragraphs seven (7) and eight (8) above were and are intentional. 1 1, The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are done with malice or with reckless indifference to federally protected rights of Copello, and a class of female employees.
PRAYER FOR RELIEF WI~EREFORE, the Commission respectfully that this Court: A. Grant a perma~aent injunction enjoining Defendants Custom Companies and Custom Executive Group, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of sex; B. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in retaliation for complaining about sex discrimination; C. Order Defendants to institate and carry out policies, practices, and programs which provide equal employment opportunities for wonlen, and which eradicate the effects of its past and present unlawful employment practices;

D. Order Defendants to make whole Copello, and a class of female employees by providing compensation for past and future pecuniary losses, resulting from the unlawlhl
employment practices described above and including backpay for Copello;
Order Defendants to make whole Copello, and a class of female employees by
providing compensation for past and future non-pecuniary losses, including emotional pain, suffering, inconvenience, loss of Ii fe and humiliation;
F. Order Defendants to pay Copello, and a class of fem’,de employees punitive damages for its malicious and/or reckless conduct described, in amounts to be determined at trial;
G. Order Defendants and its successors to provide training to its officers, managers and employees regarding sexual harassment in the workplace;
Grant such further relief as the Court deems necessary and proper in the public interest; and
I. Award thc Commission its costs in this action.
Respectfully submitted, ERIC S. DREIBAND General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 "L" Street, N.W. Washington, D.C. 20507

Trial Attorney Deborah L. Hamilton Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West .Madison Street Suite 2800 Chicago, Illinois 60661 (312) 886-9078

 </s> Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 1

E.E.O.C. v. Custom Companies, Inc. N.D.Ill.,2004.
United States District Court,N.D. Illinois, Eastern Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
andCatherine COPELLO and Allison Kennedy, Plaintiffs-Intervenors, v.
CUSTOM COMPANIES, INC., and Custom Distributor Network, Inc. Defendants. No. 02 C 3768, 03 C 2293.
April 7, 2004.
John C. Hendrickson, Deborah Lois Hamilton, Richard John Mrizek, U.S. Equal Employment Opportunity, Beth A. Miller, Pontikes & Garcia, Chicago, IL, Noelle Christine Brennan, Brennan & Monte, Ltd., Chicago, IL, for Plaintiff. Martin K. Denis, Daniel R. Madock, Maureen Kay Feldman, Jessica E. Huebsch-Lynott, Barlow Kobata & Denis, Chicago, IL, for Intervenors. Jason Robert Bent, Bennett L. Epstein, Diane E. Gianos, Eric M. Phillips, Foley & Lardner, Chicago, IL, Daniel P. Colling, Walter B. Connolly, Jr., Jeffrey S. Kopp, Foley & Lardner, Detroit, MI, for Defendants.
MEMORANDUM OPINION AND ORDER LEINENWEBER, J. *1 Before the Court are Defendants' Motions to Limit the Class in Case Nos. 02-C-3768 and 03-C-2293. (These cases were consolidated on July 7, 2003.) For the following reasons, the Motions are granted in part and denied in part.
I. BACKGROUND
A. The Sexual Harassment Class Action (Case No. 02-C-3768)
Custom Companies, Inc. (“Custom”) employed Catherine Copello (“Copello”) as a sale representative from 1994 until her discharge in November 1999. On January 14, 1999, Copello filed a timely charge of

discrimination with the United States Equal Employment Opportunity Commission (the “EEOC”), alleging that throughout her employment she and other female employees at Custom were subjected to sexual discrimination, sexual harassment, and retaliation. In November 1999, Copello filed an amended charge of discrimination with the EEOC, alleging that Custom retaliated against her for filing the initial EEOC charge. In April 2000, Copello filed a second amended charge with the EEOC alleging retaliation and sexual discrimination.
The EEOC investigated Copello's charge of discrimination and issued a Determination letter on September 6, 2001, finding that the evidence gathered in the investigation established reasonable cause to believe that Custom had discriminated against a class of female employees “by subjecting them to a sexually hostile, offensive work environment, in violation of Title VII.” The EEOC's conciliation efforts failed, and it thereafter filed a civil action against Custom under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The amended complaint contains class-wide allegations of both discriminatory treatment under 42 U.S.C. § 2000e-5 (“Section 706”) and pattern and practice allegations under 42 U.S.C. § 2000e-6 (“Section 707”). The EEOC alleges that “[s]ince at least 1994,” Custom “engaged in a pattern or practice of unlawful employment practices.” Am.Compl.¶ 7. These purported practices include pressures to “entertain” customers at “strip clubs,” company outings attended by strippers, groping and sexual touching, pornographic materials on-display on work computers, and lewd sexual language. See id.
B. The Retaliation Class Action (Case No. 03-C-2293)
Corrine Miller (“Miller”) began her employment at Custom in 1995. In early 1999, and again in mid1999, she testified in support of a complainant in an internal sexual harassment investigation at Custom. On December 27, 1999, Custom discharged Miller. On June 26, 2000, Miller filed a charge of discrimin-

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 2

ation with the EEOC alleging that Custom had discriminated against her and terminated her in retaliation for her participation in the internal sexual harassment investigation. Following an investigation of Miller's charge, and failed conciliation efforts, the EEOC filed the present action against Custom on April 2, 2003. The EEOC alleges “retaliatory practices” on behalf of a class of female employees, claiming that since at least 1998, Custom has altered job duties, reduced compensation, disciplined, and discharged class members in retaliation for employees “opposing sex harassment.” See Compl. ¶ 8.
C. The Court's October 27, 2003 Ruling
*2 On October 27, 2003, this Court denied PlaintiffIntervenor Allison Kennedy's (“Kennedy”) motion to intervene under Federal Rule of Civil Procedure 24(a)(1). See Custom Companies, Inc. v. EEOC, 2003 WL 22455510 (N.D.Ill.2003). Custom employed Kennedy as a sales representative between August 17 and October 20, 1998. She claimed that she faced a sexually hostile environment during these two months of employment. Custom terminated Kennedy in October or November 1998. This Court held that Kennedy could not intervene in the retaliation class action because her claims were time-barred. Specifically, the Court found that the retaliation class action was bound by the 300-day time frame preceding Miller's June 26, 2000 EEOC charge. Therefore, any claims preceding August 31, 1999, including Kennedy's claims, were time-barred. The Court also held that Kennedy could not avail herself to the “single-filing” doctrine to piggyback onto Miller's claim because this doctrine is available only to those parties who could have filed a claim with the EEOC based on the same unlawful conduct within the required statutory period. See id.
II. DISCUSSION
A. Limits on the Class in the Sexual Harassment Action
1. Rearward time limits on the class
In Illinois, a plaintiff alleging Title VII violations must file charges with the EEOC within three hun-

dred days of the alleged discriminatory employment practice (the “filing period”). See 42 U.S.C. § 2000e-5(e)(1); Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir.1995). One of the issues raised in these Motions is whether a hostile work environment claim that includes continuing violation allegations can include claims of employees who did not work at Custom during the filing period (i.e., more than 300 days before Copello filed her EEOC charge or March 20, 1998). In other words, can the class of plaintiffs here include employees who were not exposed to any discriminatory acts during the filing period because Custom no longer employed them. (The Court recognizes that EEOC enforcement actions brought on behalf of a class of individuals are not “true” Federal Rule 23 class actions, see General Telephone Co. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), but for purpose of clarity, it will use such terms as “class action” and “class membership.”)
Custom argues that a continuing violation claim cannot revive otherwise state claims, and, accordingly, class membership must be limited to those individuals who were employed at some point during the filing period. Under Custom's view, employees who left Custom before March 20, 1998 “could not have been subjected to any allegedly hostile work environment during the 300-day limitations period, and therefore could not have timely filed an EEOC charge on January 14, 1999 [the date that Copello filed her charge].” Defs. Br. at 6. The EEOC, in turn, contends that under a continuing violation theory, Custom can be liable for acts that predate the 300-day filing period, and therefore class membership cannot be so limited. See Pls. Resp. Br. at 4-8.
*3 As a preliminary matter, Custom relies heavily on this Court's October 27, 2003 ruling (“prior ruling”) to support its argument. At issue in the prior ruling was whether a plaintiff-intervenor could rely on the “single filing” doctrine to revive her state claim. The Court held that it could not, based, in part, on the problems of notice to employers and “long-standing notions of finality and prompt resolution of claims.” Custom Companies, Inc., 2003 WL 22455510 at *4. At that point, however, the Court did not have the opportunity to consider the crucial issue here: whether

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 3

the continuing violation doctrine could allow claims of class members that occurred entirely outside of the filing period. Accordingly, the prior ruling informs the present opinion, but does not control the outcome here.
a. The case law supports Custom's position
Turning now to the case law, the Court must begin with a discussion of the fairly-recent United States Supreme Court decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), which the EEOC contends is controlling authority here. The EEOC relies heavily on Morgan to support its proposition that a hostile work environment claim that contains continuing violation allegations allows a court to “look beyond the 300-day charge filing period and impose liability based on the claims of class members employed outside 300 days.” Pls. Resp. Br. at 4. Custom argues vigorously that Morgan simply “clarified the continuing violation doctrine solely as it applies to an individual's hostile work environment claim” and “does not permit a plaintiff, simply by alleging a continuing violation, to resurrect the time-barred claims of former employees.” Defs. Reply Br. at 6.
Custom has the better view of Morgan. In Morgan, the plaintiff filed an individual complaint, alleging racial discrimination, consistent harassment, and retaliation from his former employer. See Morgan, 536 U.S. at 105-06. Plaintiff did not raise class allegations, and the EEOC did join in the suit. See id. The issue in Morgan was whether the employer could be liable for acts that occurred more than 300 days before plaintiff filed the EEOC charge. In deciding which acts could be considered, the Supreme Court distinguished between discrete retaliatory acts, such as termination, failure to promote, or denial of transfer, and the continuous acts of harassment that constitute a hostile work environment. See id. at 114-16. Specifically, hostile environment claims, unlike discrete acts of discrimination, depend by nature “on the cumulative effect of individual acts” across time, and a single act of harassment often is not actionable on its own. Id. at 115. In other words, “a hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful em-

ployment practice.” ’ Id. at 116. Relying upon the unique nature of hostile environment claims, the Morgan Court held that an employer may be liable for acts occurring outside of the 300-day filing period, provided that (1) at least one act contributing to the claim occurs within the filing period and (2) the acts falling outside of the 300-day filing period are part of the same actionable hostile environment claim. See id. at 117, 120-21. Discrete acts outside the filing period, however, are not actionable under a continuing violation theory, although they may be used as evidence of a hostile environment claim. See id.
*4 Thus, Morgan stands solely for the proposition that under an individual hostile work environment theory, an employer may be liable for acts of harassment against the same individual plaintiff that occurred before the filing period, provided that such acts are part of the same continuing pattern of harassment. Morgan is silent on whether a class can include class members who did not experience any acts of harassment during the filing period. (Further, Morgan did not alter the “single filing” doctrine, which, under this Court's reasoning in the October 27, 2003 ruling, would bar the inclusion of class members whose employment ended outside of the filing period.)
Having dispensed with the sole Supreme Court authority cited by the parties, the Court now addresses the parties' Seventh Circuit authority. Unfortunately, as shown below, there is competing Seventh Circuit authority on this issue, which provides ammunition for both parties. Custom initially points to Movement for Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1248, 1256 (7th Cir.1980) (hereinafter “Movement” ), which this Court relied upon in its prior ruling. In Movement, the Seventh Circuit held that the determination of class action claims depended on “which individual charges apply to which class claims in order to determine the earliest charge filed relative to each class.” See id. at 1248. The Movement court noted that “it is not necessary that each class member have filed a charge with the EEOC for support; however, only those who could have filed a charge at or after the time a charge was filed by the class representative can be included in the charge.” See id (citations omitted). Thus,

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 4

Movement provides controlling authority for the proposition that class membership must be tethered to the earliest underlying EEOC charge. Here, the only charge in the sexual harassment class action is Copello's January 14, 1999 charge, and therefore, under Movement, class membership should be limited to only those employees who could have filed a charge in the preceding 300 days. (As discussed below, the EEOC seeks to distinguish Movement on the basis that the lawsuit there sought to vindicate solely private, rather than public, rights.)
Custom also relies on In re Consolidated Pretrial Proceedings in the Airline Cases, 582 F.2d 1142 (7th Cir.1978) (hereinafter “Airlines”); rev'd in part on other grounds, sub nom by Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). In Airlines, a female flight cabin attendant brought a class action alleging Title VII sex discrimination because of an airline policy to ground all pregnant female employees. Siding with a defendant airline, the Seventh Circuit declined to extend the continuing violation theory and excluded from the class all employees who were terminated more than 90 days prior to the date that the EEOC charge was filed (90 days was the governing filing period at the time of this case). See id. at 1147. The court noted: “it is the continuity of the employment relationship that sustains the violation, and when that relationship is severed, the violation ceases.” Id. at 1149.
*5 EEOC seeks to distinguish Airlines on the basis that (1) the Supreme Court purportedly overturned the Seventh Circuit's ruling, and (2) Airlines did not address hostile environment claims brought by the EEOC, but rather involved solely private litigants. The EEOC's claim that the Supreme Court overturned the Seventh Circuit's ruling pertaining to the application of the continuing violation doctrine is incorrect. In Zipes, the Supreme Court overturned only the Seventh Circuit's determination that the timely filing requirement was jurisdictional, and hence not subject to a waiver analysis. See Zipes, 455 U.S. at 392-99. The Supreme Court did not review the Seventh Circuit's reasoning pertaining to the continuing violation doctrine, and, as a result, it remains viable Seventh Circuit law. (The Court will address below the EEOC's argument relating to the fact that Airlines involved

only private litigants.)
Custom also relies on several district court cases from this circuit (and other circuits) to support its argument that class membership is limited to only those employees who could have filed an EEOC charge during the filing period. See, e.g., EEOC v. Harvey L. Wainer & Assoc., 1995 WL 470233 (N.D.Ill.1995) (hereinafter “Walner I”), aff'd on other grounds, EEOC v. Harvey L. Walner, 91. F.3d 963 (7th Cir.1996) (hereinafter “Walner I”); Daniels v. Federal Reserve Bank of Chicago, 194 F.R.D. 609 (N.D.Ill.2000). Walner I is perhaps Custom's strongest case because of the similarities to the present case. In Walner I, the EEOC filed a complaint alleging that “a class of female employees” had been subjected to a hostile environment based on sexual harassment by an employer law firm. See Walner, 1995 WL 470233 at *1; Walner, 91 F.3d at 965. The EEOC also included allegations of a continuing violation. See Walner, 91 F.3d at 969-70. Defendants sought to exclude certain former employees from the class because they failed to file discrimination charges with the EEOC within the requisite 300 days, and were terminated well before the filing period. See id. at *1. The court agreed, holding that the while the EEOC has the authority to bring class claims arising out of an investigation of an individual EEOC charge, it cannot “resurrect untimely claims” because such “a result would improperly expand the substantive rights of the individuals which the EEOC represents and would render the 300-day filing period effectively meaningless.” See id. at *4. The court noted the “anomaly” that would result if the procedural device of class actions could expand substantive rights by reviving otherwise time-barred claims: Courts which have considered the question directly have uniformly held that only those employees who could have filed charges with the Commission individually when the class filing was made are properly members of the litigating class.
Id., quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 (C.A.D.C.1976). The Walner I court also noted that “the rule permitting a Title VII class action based on only a single EEOC filing to proceed is inapplicable to the claims of former employees” because the primary justification for such a rule-that

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 5

the employer has sufficient notice from a single charge-does not apply in the case of long-deserted employees. See id.
*6 Finally, the Walner I court held that the continuing violation theory did not permit time-barred claims from former employees: The EEOC is attempting to bootstrap [the former employees'] state claims onto [plaintiff's] timely charge by alleging these individuals' claims are merely part of a continuous and ongoing course of discriminatory conduct which extends, through [plaintiff's] allegations, well into the applicable 300-day limitations period.
Id. at *6. The court's refusal to entertain the continuing violation doctrine was based on its conclusion that the EEOC's pattern and practice allegations were merely “a conglomeration” of “recognizable and independently actionable occurrences” and “not the type of continuing violation which would permit this Court to consider the stale claims of parties who elect not to file charges with the EEOC within the requisite 300-day period.” Id.; see also id. at *8, n. 2. Thus, Walner I confusingly appears to leave the door open, albeit in dicta, for the argument that some types of continuing violations may resurrect stale claims. (The EEOC does not rely on this language, and, in any event, its persuasive value is extremely limited, given the discussion below.)
To limit Walner I, the EEOC argues that “the Seventh Circuit explicitly rejected” the district court's approach in Walner I. See Walner, 91. F.3d at 970. This is not accurate. The Seventh Circuit affirmed the district court's decision, but did so on the grounds that the EEOC lacked standing to bring the complaint because there was no viable charge to base its claims upon. See id. The EEOC focuses on the following dicta to support its contention: The district court examined the viability of the claims presented by these five women as potential bases for the EEOC's complaint. As we have noted above, this was not required under a continuing violation theory of discrimination under Title VII had the EEOC satisfied the administrative prerequisites with respect to [plaintiff's] charge.

Id. In essence, the EEOC argues that this statement shows that the Seventh Circuit held that as long one timely charge exists, the viability of other timebarred claims is irrelevant under a continuing violation theory. The EEOC has this dicta passage perform too much work. All that the Seventh Circuit “noted above” was the general rule that a single viable charge is all that is normally required to support a class complaint containing continuing violations allegations. It is true that the fact pattern in Walner included time-barred claims, but the Seventh Circuit was focused here on solely whether there was any basis to support the EEOC's standing. It did not engage in any substantive review of whether the continuing violation doctrine could revive the timebarred claims of other potential plaintiffs - nor could it, as the EEOC had abandoned its continuing violation argument on appeal. See id. at 969. As a result, stretching this dicta language into a holding that a class action containing a continuing violation theory can revive time-barred claims is untenable.
*7 Custom also relies on Daniels, where plaintiffs sought to bring a class action employment discrimination case that would include all affected employees since 1964. The defendant argued that only those employees who could have filed a timely suit should be included in the class. See Daniels, 194 F.R.D. at 617. Plaintiffs, in turn, contended that the continuing violation doctrine applied, such that “all claims from 1964 to the present” were properly before the court. See id. Relying on Movement and Walner I, the court held that continuing violation doctrine permits only the inclusion of additional, but otherwise time-barred claims-not the inclusion of otherwise time-barred parties. See id. at 617-18.
The EEOC, in turn, points out that there are several district court cases within this circuit that hold that class membership can include employees employed outside the 300-day filing period. See, e.g., EEOC v. Chicago Miniature Lamp Works, 640 F.Supp. 1291 (N.D.Ill.1988) (hereinafter “Lamp Works” ); EEOC v. Mitsubishi Motor Manf. of America, Inc., 990 F.Supp. 1059 (C.D.Ill.1998) (hereinafter Mitsubishi ); EEOC v. Dial Corp., 156 F.Supp. 926 (N.D.Ill.2001). In Lamp Works, an employee and the EEOC raised class allegations of employment discrimination cov-

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 6

ering an eleven-year period. The defendant argued that only those employees who were discriminated against, during the filing period could become members of the class. See id. at 1293-94. The EEOC argued in response that the defendant had engaged in a “continuing violation” and therefore every victim throughout the eleven-year period could be a class member. See id. The court noted that “[c]ourts applying the ‘continuing violation’ notion to the longstanding-discriminatory-practice situation may effectively treat the EEOC filing as relating back to the onset of that period, bringing earlier acts of discrimination within the limitations period.” Id. at 1294. Relying on a Second Circuit decision, the court held that “[b]ecause [defendant] engaged in a continuing course of discrimination against black persons, even persons who suffered discrimination during the earlier part of that continuous period (and not just within the 300 days) can become class members entitled to relief.” Id. at 1296.
The EEOC also points to Mitsubishi and Dial for support. These cases provide the EEOC with an alternate theory to include otherwise time-barred claims. Specifically, the EEOC argues that Mitsubishi and Dial establish that the 300-day filing period in Section 706 cases does not apply to Section 707 “pattern or practice” cases. In Mitsubishi, a Commissioner's charge initiated a Section 707 “pattern or practice” discrimination action. The defendant argued, among other things, that employees who left the company more than 300 days before the Commissioner filed his charge should be time-barred. See Mitsubishi, 990 F.Supp. at 1083. The court held that the 300-day limitations period did not apply to pattern or practice cases, and thus claims before the 300-day filing period were not time-barred. See id. at 1085. The Mitsubishi court placed great emphasis on the fact that the case before it was initiated by a Commissioner's charge, rather than an individual charge: *8 By its nature, the Commissioner's charge alleging a pattern or practice of sexual harassment is not filed within 300 days of any particular incident of sexual harassment, because it is not based on an individual charge, but rather on the evidence gathered over a course of time showing a pattern of harassment against many individuals.... Without any single incid-

ent of discrimination, from which to start the 300-day clock running, a court cannot determine when a Commissioner's charge is timely filed.”
Id. at 1085. Thus, according to the court, a Section 707 pattern or practice case is “not amenable to a timeliness determination.” Id.
In Dial, the defendant claimed that the 300-day limitations period barred class members from obtaining individual relief for discrimination occurring before the period, despite the EEOC's allegations of a continuing violation. See Dial, 156 F.Supp.2d at 966. Relying exclusively on the Mitsubishi court's reasoning (even though the case before it was based on an individual charge and not a Commissioner's charge), the Dial court held that “in pattern-or-practice litigation, the 300-day requirement is arbitrary as to these individual claims since ‘the purpose of the limitations period is to prevent the filing of stale claims.” ’ See id. at 968, quoting Mitsubishi, 990 F.Supp. at 1085. Under the Dial court's reasoning, because of the continuous nature of the discriminatory policy, “an employer that maintains a continuing violation neither deserves nor obtains repose.” See id., quoting EEOC v. City of Chicago, No. 85 C 7281, 1989 WL 134788 at * 9 (N.D.Ill.1989).
Custom devotes a significant portion of its opening brief attempting to show that Mitsubishi, and its progeny, Dial, are inapposite and, in any event, wrongly decided. Custom relies primarily on a Virginia district court case that disagreed with the analysis in Mitsubishi. See EEOC v. Optical Cable Corp., 169 F.Supp.2d 539 (W.D.Va.2001). In Optical Cable, the EEOC brought a pattern or practice case under Section 707 against an employer. The employer argued that the EEOC complaint was untimely with respect to those individuals who did not suffer an adverse employment action within the governing 180-day filing period, even in the face of a continuing violation allegation. See id. at 544-45. The court first considered whether the 180-day period governing Section 706 claims applied to Section 707 pattern or practice claims. See id. at 546-47. Relying on the plain language of the statute, the court held that the same limitations period governs both Section 706 and Section 707 claims. See id. The court also suggested,

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 7

without reaching a final decision, that a continuing violation could not revive stale claims and to hold otherwise would allow “the court-made continuing violation doctrine” to nullify the statutory period of limitations. See id. at 549.
This Court is persuaded by the reasoning in Optical Cable. The plain language of the Title VII statute dictates that Section 706's 300-day filing period applies to Section 707 actions: “[a]ll such [Section 707] actions shall be conducted in accordance with the procedures set forth in section 2000e-5 [Section 706] of this title.” 42 U.S.C. § 2000e-6(e); see Optical Cable, 169 F.Supp.2d at 547. Mitsubishi can be distinguished by, among other reasons, its dependency on a Commissioner's charge. See Mitsubishi, 990 F.Supp. at 1083. This predicate fact caused great concern to the Mitsubishi court that any consideration of timeliness would be arbitrary. See id. In contrast, Copello's individual charge here clearly establishes the parameters of the 300-day filing period. Dial is unpersuasive because it wholesale adopts Mitsubishi's reasoning without considering that the Mitsubishi court relied heavily on the presence of a Commissioner's charge-a fact that did not exist in Dial, which was based on an individual charge. See Dial, 156 F.Supp.2d at 966.
*9 Thus, the Court is presented with somewhat contradictory district court opinions. Neither party convincingly distinguishes these cases on sound analytic grounds. (And the Court fares no better.) For instance, the EEOC seeks to distinguish Custom's authority on the basis that none of Custom's cases addresses the situation “where a Court has Limited the class when there is a continuing violation, or a pattern or practice, of hostile environment sexual harassment.” Defs. Surreply Br. at 6. (Walner I did, in fact, address such a situation, but the EEOC contends, incorrectly, that Walner II overruled the pertinent reasoning.) Setting aside the EEOC's erroneous view regarding Walner I, this distinction has little significance. The EEOC certainly provides no authority for the proposition that hostile environment sexual harassment allegations per se are afforded a unique application of the continuing violation doctrine, as opposed to other types of hostile environment or other discriminatory conduct. That is, the crucial issue here

is the ability of the continuing violation doctrine to revive stale claims involving any sort of continuing discriminatory conduct.
Custom's attempt to distinguish the EEOC's case law is similarly unavailing. For instance, Custom argues that the EEOC's cases address only “discrete acts,” which no longer constitute a continuing violation following the recent Morgan decision. This argument, however, misses the key analytic issue presented in these cases: whether the continuing violation doctrine itself can somehow revive stale claims of any sort. That Morgan limited the category of acts that can be subjected to a continuing violation analysis does not ipso facto undermine the reasoning contained in these opinions, as applied to non-discrete acts.
At the end of the road, the Court finds that Custom's authority is stronger and more-consistent with the policy underlying Title VII's procedural requirements. Custom at least cites some controlling authority from the Seventh Circuit that supports its argument. See Movement, 622 F.2d 1235; In re Airlines, 582 F.2d 1142. The EEOC does not cite any controlling authority for its position. In addition, the district court cases cited by Custom are analytically more-sound and in greater harmony with the policies underlying Title VII, as shown below.
b. Policy considerations favor Custom's position
Custom's argument is also more-consistent with Title VII policy (as well as this Court's prior ruling). The relatively short filing period in Title VII is not by accident: Congress intended a short limitations period to encourage prompt processing and resolution of employment discrimination claims. See Morgan, 536 U.S. at 108, citing Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Lower courts “are compelled by the text of statute” and should not alter the timely filing requirements of Title VII. Id. When taken to its logical conclusion, the EEOC's argument would eviscerate any limitations period in Title VII cases, so long as the plaintiff alleges a continuing violation. Any employer accused of a continuing violation or pattern or practice hostile environment allegations faces exposure to unlimited claims from long-departed employees. This Court

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 8

cannot nullify the statutory provisions of 42 U.S.C. § 2000e-5(e)(1) in this manner.
*10 The Court acknowledges that the very nature of hostile environment claims encompass acts that are sufficiently subtle to go undetected for long periods of time. See Morgan, 436 U.S. at 115-16. As the Morgan court noted: The unlawful employment practice therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.... Such claims are based on the cumulative effect of individual acts.
Id. at 115. As a result, there may be employees who experience some of the effects of a hostile work environment, but yet have no legal recourse because the conduct has not reached sufficient “cumulative effect” to be actionable until after the employee departs. Id. Ultimately, however, this reflects nothing more than a variation on the inherent tension behind any statute of limitations:Statutes of limitations ... represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.... [T]hey protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.
United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), quoting Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 88 L.Ed. 788 (1944) (internal citation omitted). Accordingly, the Court must uphold the limitations provisions outlined in Title VII.
The EEOC raises one final argument, essentially couched in policy terms, in which it argues that cases where “the EEOC is seeking enforcement of Title VII on behalf of the public good” are “different because the plaintiff is not merely a private litigant.” Pls. Resp. Brief at 10. For instance, the EEOC points out that EEOC enforcement actions containing class al-

legations are not subject to Rule 23 of the Federal Rules of Civil Procedure. See General Telephone Co. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980); In re Bemis Co., Inc., 279 F.3d 419, 421 (7th Cir.2002). Relying primarily on General Telephone, the EEOC claims that its ability to vindicate public rights entitle it to avoid procedural limitations that may otherwise encumber private litigants. To a certain degree, this is true, but the EEOC does not provide any controlling authority permitting it to expand substantive rights, such as reviving stale claims. See Walner 1, 1995 WL 470233 at *4; cf. EEOC v. Newspapers, Inc., 1985 WL 5252 (E.D.Wis.1985). And the Court finds no controlling authority for the proposition that the EEOC's laudable public mandate allows it to alter substantive individual rights. On the contrary, the EEOC's public enforcement actions have only a minimal focus on such individual rights: *11 The EEOC's primary role is that of a law enforcement agency and it is merely a detail that it pays over any monetary relief obtained to the victims of the defendant's violation.
In re Bemis Co., 279 F.3d at 421. Thus, barring the claims of those employees who were employed outside of the filing period here would do little to frustrate the primary public purpose of the EEOC's enforcement action because it would not impede the EEOC's ability to end Custom's purported hostile environment through injunctive remedies. See EEOC v. North Gibson School Corp., 266 F.3d 607, 616 (7th Cir.2001) (contrasting the “high level of public interest served when the EEOC seeks an injunction with the minimal public interest served by an individual monetary award”).
2. Forward time limits on the class
Custom also seeks to limit class membership in the forward-looking direction. According to Custom, the appropriate cut-off date here is the date the representative charge was filed. (Custom calculates this to be June 26, 2000.) Custom argues that the “piggyback” doctrine only allows the joinder of other claims if they arise out of similar discriminatory treatment in the same time frame. See Hipp, 252 F.3d at 1217. To hold otherwise would purportedly frustrate the requirements of notice to the employer (and the

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 9

EEOC). See id. at 1225. The EEOC, in turn, argues that there is no Seventh Circuit authority supporting Custom's position. Indeed, the EEOC notes that Seventh Circuit authority shows that it is not limited to the allegations in the filed charge, but rather may bring an action based on any claims that arise in the course of a reasonable investigation. See, e.g., EEOC v. Temple Steel Co., 723 F.Supp. 1250, 1252 (N.D.Ill.1989); Walner II, 91 F.3d at 968. By analogy, the EEOC argues that it may therefore include any additional claims of sex harassment from additional parties that it uncovers during its investigation. See id.
Ironically, the strongest support for the EEOC's position can be traced back to the principal opinion that Custom relies upon, Hipp, rather than the case law cited by the EEOC. In Hipp, the Eleventh Circuit limited the forward scope of an opt-in class to the date the representative charge was filed. See Hipp, 252 F.3d at 1225. The court noted that the primary purpose of the charge-filing requirement was to put the employer (and the EEOC) on notice of claims. See id. In holding that the representative charge at issue did not put the employer on notice of subsequent claims, the Hipp court specifically noted that the charge “did not explicitly allege that the violation was continuing.” See id. at 1225, n. 20. Thus, Hipp can be distinguished on the basis that the governing charge did not encompass continuing violation allegations. See id. More significantly, the Hipp plaintiffs argued that the after-the-charge claims they sought to include in the class “related to or grew out of the allegations” in the governing charge-an argument very similar to the one offered by the EEOC here. See id. at 1225-26. The Hipp court acknowledged that there was authority supporting this position-and specifically cited Seventh Circuit case law for this proposition-but declined to follow such authority. See id. at 1226, citing McDonald v. United Air Lines, Inc., 587 F.2d 357, 361 (7th Cir.1979); Levine v. Bryant, 700 F.Supp. 949, 957 (N.D.Ill.1988).
*12 Curiously, neither party cites to this Seventh Circuit authority, but it nonetheless guides the decision here. In McDonald, plaintiffs brought a class action challenging an airline's no-marriage rule for flight attendants. In determining the period of recovery for

the class, the Seventh Circuit held that the temporal limits of the class extended beyond the date of the filed charges and up to the date that the no-marriage policy ended. See McDonald, 587 F.2d at 361. The court reasoned that the “ruling is not unfair to United, for it was put on notice by [earlier plaintiffs'] filings that aggrieved stewardesses were challenging its nomarriage rule policy.” See id. Similarly, in Levine, the district court allowed a plaintiff to opt-in the class after the governing charge was filed because the initial plaintiff's “EEOC charge put [defendant] on notice that someone was challenging its alleged age discrimination.” See Levine, 700 F.Supp. at 957.
Custom cites no Seventh Circuit authority for its forward limit argument, and this Court sees no reason to contravene the authority provided in this circuit. Adopting McDonald and Levine' s reasoning is consistent with the policy underlying charge-filing requirements, which provide an employer and the EEOC with notice about claims and conciliation opportunities. See Horton v. Jackson County Bd. of Com'rs, 343 F.3d 897, 899 (7th Cir.2003). Especially in class actions, one charge typically suffices to alert the employer that other charges might follow. See id. Here, Custom cannot seriously argue that it lacks notice of potential subsequent claims arising from the EEOC's investigation. Nor can Custom argue that it is deprived of conciliation opportunities, given the two prior failed conciliation efforts. Moreover, the concerns about prejudice to the defendants that arise from stale claims, such as loss of evidence, memory, and witnesses, are not present here because of the relatively recent (and short) forward-looking time frame. Accordingly, the requirement that any additional claims go through the charge-filing procedure would not serve the purpose of this requirement and would merely lead to an increased burden for both the EEOC and the employer. See id.
B. Limits on the Class in the Retaliation Action
Custom also seeks rearward and forward limits on the class in the retaliation action. This requires little extended discussion as the Morgan decision effectively nullifies the EEOC's position here (and the above discussion limiting the continuing violation doctrine also applies to defeat the EEOC's argument). Spe-

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 765891 (N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 (Cite as: Not Reported in F.Supp.2d)

Page 10

cifically, Morgan forbids the application of the continuing violation doctrine to discrete acts of retaliation. See Morgan, 536 U.S. at 114-16. The EEOC “concedes that if the Court were to find its retaliation allegations constitute ‘discrete acts' under Morgan there could be no continuing violation.” EEOC Resp. Br. at 5, n.3. However, the EEOC contends that the Court cannot impose any limitations until after discovery. See id. Specifically, the EEOC “expects that discovery in the instant case will reveal a policy of retaliation constituting a continuing violation.” See id. (emphasis in original).
*13 Assuming arguendo that such a “policy” could render otherwise discrete acts subject to a continuing violation analysis after Morgan, the retaliation complaint does not contain any allegations of a particular retaliatory policy. The EEOC had opportunity to investigate these claims prior to filing the complaint and did not include such allegations. Instead, the complaint unmistakably alleges solely discrete retaliatory practices such as alteration of job duties, reduction in compensation, discipline, and discharge. See Compl. ¶ 8. These are precisely the sort of discrete acts that fall squarely under Morgan's purview. See Morgan, 536 U.S. at 113. As a result, the EEOC cannot rely on the continuing violation doctrine to extend the limitations period in the retaliation action. (And, as indicated above, the continuing violation theory does not revive stale claims in any event.) Accordingly, the rearward limits proposed by Custom are appropriate here.
For the reasons noted above, however, the forward limit proposed by Custom is not applicable in the retaliation action.
III. CONCLUSION
For the foregoing reasons, Custom's Motions to limit the Class in Cases Nos. 02-C-3768 and 03-C-2293 are GRANTED with regard to rearward time limits but DENIED with regard to forward time limits.
IT IS SO ORDERED.
N.D.Ill.,2004. E.E.O.C. v. Custom Companies, Inc. Not Reported in F.Supp.2d, 2004 WL 765891

(N.D.Ill.), 93 Fair Empl.Prac.Cas. (BNA) 1450 END OF DOCUMENT

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

 </s> Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 1638224 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d)

Page 1

E.E.O.C. v. Custom Companies, Inc. N.D.Ill.,2004. Only the Westlaw citation is currently available. United States District Court,N.D. Illinois, Eastern Di-
vision. EQUAL EMPLOYMENT OPPORTUNITY COM-
MISSION, Plaintiff, andCATHERINE COPELLO and Allison Kennedy,
Plaintiffs-Intervenors, v.
CUSTOM COMPANIES, INC., Custom Executive Group, Inc. and Custom Distribution Network, Inc.
Defendants. No. 02 C 3768.
July 21, 2004.
John C. Hendrickson, Deborah Lois Hamilton, Richard John Mrizek, U.S. Equal Employment Opportunity, Beth A. Miller, Pontikes & Garcia, Chicago, IL, Noelle Christine Brennan, Brennan & Monte, Ltd., Chicago, IL, for Plaintiff. Martin K. Denis, Daniel R. Madock, Maureen Kay Feldman, Jessica E. Huebsch-Lynott, Barlow Kobata & Denis, Chicago, IL, for Intervenors. Jason Robert Bent, Bennett L. Epstein, Diane E. Gianos, Eric M. Phillips, Foley & Lardner, Chicago, IL, Daniel P. Colling, Walter B. Connolly, Jr., Jeffrey S. Kopp, Foley & Lardner, Detroit, MI, for Defendants.
MEMORANDUM OPINION AND ORDER LEINENWEBER, J. *1 Before the Court is the EEOC's Motion for Entry of a Protective Order and Motion to Compel Defendant to Produce a Witness Pursuant to Rule 30(b)(6). Custom Companies has agreed to produce the Rule 30(b)(6) witness, and thus that Motion is denied as moot.
I. BACKGROUND
The EEOC moves for a protective order barring Defendants from proceeding with state court litigation against a class member, who will be identified as “Doe” in this opinion. The EEOC raises two arguments in support of its motion. First, the EEOC

claims that the state court litigation is retaliatory and will cause irreparable harm to Doe and the EEOC. Second, the EEOC contends that the state court litigation violates the protective order in this case.
The overall facts are undisputed. Doe performed services for Custom from approximately October 2000 to November 2001. On November 20, 2003, counsel for Custom sent a letter to the EEOC requesting that Doe be dropped from the class because she purportedly had been an independent contractor and not an employee. The next day, on November 21, 2003, corporate counsel for Custom sent a letter to Doe demanding return of approximately $19,000, which Custom claimed was the excess amount that Doe had drawn as an advance against commissions, but had failed to repay when her work ended in November 2001. Custom apparently did not request these funds at any point during the two years following Doe's departure. In December 2003, the EEOC sent a letter to counsel for Custom warning that it considered the threats of litigation against Doe to be retaliatory and in violation of the protective order. In May 2004, Custom filed suit against Doe in Illinois state court, seeking return of the excess funds.
II. DISCUSSION
The EEOC's request for a protective order here is effectively a demand for an injunction aimed at the state court proceedings. Basic concepts of federalism, coupled with the controlling case law, instruct that only in the rarest of circumstances will a federal court interfere with the right of a state court to adjudicate state interests. A federal court may enjoin a lawsuit if it is retaliatory and baseless. See, e.g., Bill Johnsons' Restaurant v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). If the lawsuit has any reasonable basis in fact or law, a federal court cannot intrude in the state court proceedings. See id. at 748-749. In addition to demonstrating that the challenged litigation is baseless, the party seeking an injunction must also show “equitable entitlement to an injunction,” including irreparable harm. Ramsden v. Agribank, FCB, 214 F.3d 865, 869 (7th Cir.2000).

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

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 1638224 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d)

Page 2

The EEOC argues that the state court action at issue here is retaliatory and groundless. The EEOC notes that Custom ignored Doe's purported obligation until after the EEOC filed suit. In addition, Custom filed suit only after it failed to convince the EEOC to drop Doe from the class. The EEOC also claims that Custom has never filed a similar suit against any of its previous sales representatives. Finally, the EEOC notes that although the state court action alleges a breach of contract, Custom fails to attach any contract to the complaint.
*2 This, alone, cannot justify the injunctive relief requested here. There is no argument that Doe indeed drew an excess against her commissions. Doe may have valid affirmative defenses, such as waiver, laches, or estoppel, but nonetheless Custom's complaint-on its face-is not so devoid of all merit to allow this Court to interfere with the state court proceedings.
This is not to say, however, that Doe or the EEOC are without potential recourse in the present lawsuit. Although the authority provided by the EEOC does not support the extreme act of enjoining state court litigation, it does establish that the EEOC may be able to use Custom's acts as evidence of impermissible retaliation. The nature and timing of Custom's actions appear to be, in charitable terms, somewhat curious. A jury may view these actions in even less charitable light. The Court, of course, expresses no opinion on the legal significance, if any, of Custom's acts, but rather notes only that Custom proceeds at its own peril in this litigation.
Finally, the EEOC also argues that the state court proceeding violates the governing protective order in this case. The parties disagree about the scope of the governing protective order. Unfortunately, neither party attaches transcripts of any of the court dates during which the parameters of the protective order were discussed. In any event, even when considering the EEOC's version of the protective order, the operative language there does not support the type of relief that the EEOC requests. It states, in pertinent part: “Defendant ... shall not have any contact with an identified class member regarding the allegations or defenses raised in this case.” EEOC Reply Br., Ex.

B, par. 11 (emphasis added). The plain terms of this provision indicate that Defendants are barred solely from any discussion with identified class members regarding the claims and defenses in this matter. This is not a wholesale prohibition against any and all communications-otherwise, it would operate as a de facto injunction prohibiting Custom from pursuing any potential legal action, irrespective of the merit of such action. As noted above, this Court does not have such plenary powers.
III. CONCLUSION
For the foregoing reasons, the EEOC's Motion for a Protective Order is DENIED. The Motion to Compel Defendant Custom Companies to Produce a Witness Pursuant to Rule 30(b)(6) is DENIED AS MOOT.
IT IS SO ORDERED.
N.D.Ill.,2004. E.E.O.C. v. Custom Companies, Inc. Not Reported in F.Supp.2d, 2004 WL 1638224 (N.D.Ill.)
END OF DOCUMENT

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

 </s> IN THE UNITED STATES DISTRICT COURT

IIOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

DOCA!(tUfPJ

COMMISSION,

)

JUL 2 (i 2004

)

Plaintiff,

)

)

03 C 2293

CATHERINE COPELLO, ALLISON KENNEDY,

) )

-_._----

Plaintiff-Intervenors,

)

Hon. Judge Leinenweber

)

v.

)

)

CUSTOM COMPANIES, INC.

)

CUSTOM EXECUTIVE GROUP, INC.

)

CUSTOM DISTRIBUTION NETWORK, INC., )

)

Defendants.

)

)

NOTICE OF FILING

TO: Diane E. Gianos Foley & Lardner 321 N. Clark, Suite 2100 Chicago, Illinois 60610

Martin K. Denis Barlow, Kobata & Denis 222 S. Riverside Plaza, Suite 1410 Chicago, Illinois 60606

The attached EEOC'S SECOND AMENDED COMPLAINT IN NO. 02 C 3768 AND

FIRST AMENDED COMPl"AlNT No. 03 C 2293 has been fil

States District

Court for the Northern District of Illinois on July 23,2004.

By: ~~~t.~M~n~·z;.ekt-~~----
Trial tomey United States Equal Employment Opportunity Commission 500 West Madison Street, Suite 2800 Chicago, IL 60661 (312) 886-9078

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

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

CATHERINE COPELLO,

)

ALLISON KENNEDY,

)

Plaintiff-Intervenors,

)

)

v.

)

)

" CUSTOM COMPANIES, INC.

)

CUSTOM EXECUTIVE GROUP, INC., AND )

CDN LOGISTICS, INC

)

)

Defendants.

)

)

NO. 02 C 3768

lift]C.«frf;fi
JUL 262004

Hon. Judge Leinenweber

JUL :; , ..
. "/ ~J /i:,i'4

c~,,~:1.'.l?'_~IIC~l,J,/'. 1,·~·,·~.t iPI J-~,,"

.. ",-, , ~.l '~:

• \,

,'" .'<.

SECOND AMENDED COMPLAINT

NATURE OF THE ACTION
This is an action under Title vn of the Civil Rights Act of 1964, as amended, 42 US.c. §

2000e e( seq. ("Title VII"), and Title I of the Civil Rights Act of 1991,42 U.S.C. § 1981 a, to

correct unlawful employment practices on the basis of sex and to provide appropriate relief to

Catherine Copello ("Copello") and to a class of female employees who were adversely affected

by such practices and to provide appropriate reliefto Copello for the retaliation suffered for

complaining of these unlawful practices. Plaintiff, the U.S. Equal Employment Opportunity

Commission (the "Commission" or "EEOC"), contends Defendants, Custom Companies Inc.

("Custom Companies"), Custom Executive Group, Inc. ("Custom Executive Group"), and CDN

Logistics, Inc., ("CDN") have engaged in a pattern or practice of discrimination against Copello

I

IZO

and class of other female employees because of their sex, by subjecting them to a hostile and abusive work environment, maintaining a hyper-sexualized work environment, and by failing to take prompt remedial action intended to eliminate the harassment after the Defendant became aware of such behavior, in violation of Title Vll. EEOC further contends that when Copello objected to practices, Defendants Custom Companies, Inc. and CDN Logistics, Inc. retaliated against her by demoting her, reducing her pay, terminating her and failing to rehire her.
JURISDICTION AND VENUE I. 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 Section 706(f)(1) and (3) and Section 707 ofTitle VII of the Civil Rights Act of 1991,42 U.S.c. § 2000e-5(f)(1) and (3) and6, and Section 102 of the Civil Rights Act of 1991,42 U.S.C . § 1981a. 2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction ofthe United States District Court for the Northern District of lllinois, Eastern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency ofthc United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) ofTitle VII, 42 U.S.c. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Custom Companies, Inc., has continuously been and is now doing business in State of Illinois and the city of Northlake and has continuously had at least fifteen (15) employees. Defendant Custom Executive Group, Inc., has continuously been
2

and is now doing business in State of Illinois and the city of Northlake and has continuously had at least fifteen (15) employees. Defendant CDN Logistics, Tnc., is an affiliate of Defendant Custom Companies wbicb was doing business in the State oflllinois and the city of Northlake during the relevant period and had at least fifteen (15) employees.
5. At all relevant times, Defendants have continuously been employers engaged in an industry affecting commence within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.c. § 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institutions of this lawsuit, Copello filed charges with the Commission alleging violations of Title VII by Defendants. All conditions precedent to the institution ofthis lawsuit have heen fulfilled. 7. Since at least 1994, Defendants Custom Companies and Custom Executive Group, and CDN Logistics, as a single employer, have engaged in a pattern or practice of unlawful employment practices, in violation of Section 703(a)(i) and, Sections 706 and 707 of Title VII, 42 U.S.c. § 2000c-(a)(I) and 42 U.S.C. §§2000e-5, 20000-6. These practices include, but arc not limited to, engaging in intentional discrimination against Copello and against a class of female employees hy suhjecting them to: a) pressure to "entertain" the customers at so-called "gentlemen's" clubs or "strip"
clubs; b) company sponsored golf outings attended by female strippers; c) groping, sexuultoucbing, requests for sex, graphic descriptions of sexual exploits; d) pornographic muterials and videos displayed on computers;
3

e) lewd sexual language, sexual propositions, and references to sex organs; f) and failing to take prompt remedial action intcnded to eliminate the harassment
after Custom Companies became aware ofthe illegal behavior, all in continuing violation of Section 703(a)(I) and, Sections 706 and 707 of Title Vll, 42 U.S.c. § 2000e-(a)(I) and 42 U.S.C. §§20000-5, 20000-6. 8. Defendants have engaged in retaliation against Copello after she complained of sexual harassment, by reducing her pay, demoting her, terminating her, and failing to rehire her. 9. The effect ofthe practices complained of in paragraphs seven (7) and eight (8) above has been to deprive Copello, and a class of female employees of equal employment opportunities and otherwise adversely affect their status as an employee because of their sex. 10. The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are intentional. II. 'The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and arc done with malice or with reckless indifference to federally protected rights of Copello, and a class offemale employees.
PRAYER FOR RELIEF WHEREFORE, the Commission respcctfully that this Court: A. Grant a permanent injunction enjoining Defendants Custom Companies, Custom Executive Group, and CDN Logistics, Inc., their officers, successors, assigns, and all persons in active concert or participation with thenl, from engaging in any employmcnt practice which discriminates on the basis of sex; B. Grant a penmanent injunction enjoining Defendants, their officers, successors,
4

assigns, and all persons in active concert or participation with them, from engaging in retaliation for complaining about sex discrimination;
C. Order Defendants to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices;
D. Order Defendants to make whole Copello, and a class of female employees by providing compensation for past and future pecuniary losses, resulting from the unlawful employment practices described above and including backpay for Copello;
E. Order Defendants to make whole Copello, and a class of female employees by providing compensation for past and future non-pecuniary losses, including emotional pain, suffering, inconvenience, loss oflife and humiliation;
F. Order Defendants to pay Copello, and a class of female employees punitive danlages for its malicious and/or reckless conduct described, in amounts to be determined a( (rial;
G. Order Defendants and its successors to provide training to its officers, managers and employees regarding sexual harassment in the workplace;
H. Grant such further relief as the Court deems necessary and proper in the public interest; and
1. Award the Commission its costs in this action.
5

Respectfully submitted, ERIC S. DRElBAND General Counsel JAMES LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY
COMMI 10
Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 500 West Madison Street Suite 2800 Chicago, lllinois 60661 (312) 886-9078
6

 </s> rtf

F, LED

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

OCT " 3 Z006
Oc.:[:l317-DD "

JUDGE NARHY 0 LdNENWEBER

UNITED STATES EQUAL EMPLOYMENT

U.S. DISTRICT COURT JUDGE

OPPORTUNITY COMMISSION,

Plaintiff,

and
CATHERINE COPELLO and ALLISON KENNEDY,

Case No.102 C 376[) 03 C 2293
Hon. Harry D. Leinenweber

PlaintiffsIntervenors,

v.

CUSTOM COMPANIES, INC., CUSTOM EXECUTIVE GROUP, INC. and CDN LOGISTICS,

Defendants.

MEMORANDUM OPINION AND ORDER

The Equal Employment Opportun i ty Commission (hereinafter,

"EEOC") and Plaintiff-Interveners Catherine Copello and Allison

Kennedy

(hereinafter,

"Intorvcn0rs I')

(collectively, the

"Plaintiffs") filed suit against Defendants Custom Companies Inc.

(hereinafter, "Custom") and Custom Executive Group (hereinafter,

"CEG") (collectively, the "Defendants") alleging sexual harassment

and retaliation in violation of Title VII of the Civil Rights Act,

as amended, 42 U.S.C. § 2000 et seq. Together, the EEOC and the

Interveners allege that Defendants subjected a class of women to a

hostile environment of sexual harassment. The EEOC alleges that

Defendants retaliated against Kimberly Fritkin and Corinne Miller in violation of Title VII. Individuals Catherine Copello and Allison Kennedy also allege retaliation and sex discrimination. Defendants move for summary judgment on the class and individual claims. For the reasons stated herein, Defendants' Motion for Summary Judgment is granted in part and denied in part.
I . BACKGROUND
The following facts represent a reading of the record that is favorable to Plaintiffs. Some of the factual matters that arc in dispute have been noted. As Defendants have moved for summary judgment, all reasonable inferonces must be resolved in favor of Plaintiffs. Valance v. Wisel, 110 F.3d 1269, 1276 (7th Cir. 1997).
Custom is located at 317 West Lake St. in Northlake, Illinois. Perry Mandera (~Manderaff) is Custom's sole shareholder and officer. CEG employs some of Custom's management team. Custom ~s a fullservice transportation company that brokers freight to var~ous outside shippers. It does not actually move freight. Through its vendors, it offers local cartage, airfreight, truckload and less than truckload transportation services.
Custom's sales department sells its products and services to manufacturers and distributors. 'l'he number of people employed by the sales department is in dispute, ranging from 10 to 19. The representatives' responsibilities include attending weekly meetings, prospecting new business, maintaining current accounts,
- 2-

and complying with company policies. In order to prospect new

business and maintain current accounts, the representatives were

expected to entertain customers. Such entertainment included

meals, concerts, theaters, sporting events, and for some

reprosentatives, taking clients to a "gentleman's club" today known

as VIP but formerly known as the Crazy Horse. Mandera owned the

Crazy Horse and made it available to his sales representatj,ves for

client entertainment purposes.

Custom employs an individual to be responsible for human

resources functions. From 1990 to 2000, Thomas Boyle ("Boyle")

served as either Assistant Vice President or Vice President of

Administration and had primary responsibility for human resources

issues. In 1998, Terry Klonowski ("Klonowski") became Human

Resources Manager and reported to Boyle until 2000 when he left his

position. In late 2002, Klonowski was promoted to Vice President

of Human Resources.

Custom distributes an Employee Handbook, which contained i.ts

anti-harassment and discrimination policies.

The policies

included; an explanation of prohibited conduct; assurance tha L

employees who complained against discrimination would not be

retaliated against; a complaint process including an investigati,on

process; aSSurance regarding the confidentiality of complaints; and

assurance that appropriate action would be taken when harassment

- 3-

occurred. Whether all employees received the handbook and the

actual complaint process with Custom are in dispute.

A. Catherine Copello

Copello was employed at Custom from October 10, 1994 until she

was terminated on November 16, 1999. She was given a copy of

Custom's Employee Handbook and acknowledged on subsequent occasions

that she received it. Copello was hired to bring her experience

and clieIlts in the air freight business to Custom and to expand on

those relationships by selling additional serVlces. Until 1996,

Copello was not assigned a specific territory but was allowed to

sell in different areas without restriction.

Copello's

compensation consisted of a base salary, commission, and a car

allowance. In 1996, Copello was assigned the Elgin territory and

allowed to continue to service her existing airfreight accounts.

Custom claims that Copello was consistently one of the lowest

performing sales representatives. In 1998, Copell.o met with John

Murphy, the Vice President of Sales, to discuss possible changes to

her compensation structure allegedly due to her performance. She

was told that she might be terminated. As a result of the meeting,

Copello's compensation was reduced by $5,000 and she was placed on

a conunission plan. Whether this new arrangement was agreed to or

voluntary is disputed. Her revenue numbers are also in dispute

because she alleges that accounts were either taken away from her

or not properly credited to her. Eventually, she was terminated.

- 4-

The allegations of sexual harassment in Copello's Response to Defendants' Motion for Summary Judgment are detailed and extensive. The court will not list every allegation here and notes that Defendants' dispute almost every allegation. Copello alleges that she experienced constant harassment during her employment at Custom. Copello alleges that she experienced unwanted sexual louching by three different men at the offices of Custom or at a business related events. Assistant Sales Manager Rich Rohde ("Rohde") rubbed his hands up and down her back while telling her he loved her and discussing his penis size. Vice-President of Sales Mike Fleming ("Fleming") rubbed her thighs, arms and backs. A workplace contractor, Marcelino grabbed Copello and touched her numerouS times. Copello was also subjected to unwelcome sexual propositions from her co-worker, George Wiszowaty ("Wiszowaty"). He told Copello he wanted her to "fuck him," "suck him" and lhat he was going to "fuck her brains out." Vice-President of Truckload Operations Tom Kolzow ("Kolzow") continually asked Copello if she had gotten "fucked" the night before and asked with whom she had had sex. Wiszowaty asked if she had "fucked" a guy she dated and ln which sexual positions she had engaged.
In addition to the above, Copello was subjected to constant sexually explicit comments by several managers and co-worker's including but not limited to, Tom KoJzow, George Wiszowaty, Chief financial Officer John Oster ("Oster"), and Mike Fleming. The
- 5-

comments including frequent use of the word "fuck" and often

described graphic sexual episodes in which the men had engaged.

Fleming and John Oster told Copello to have sex with customers

because it waS good for business. Fleming also told Copello how

often he went home and "fucked [his] wife in the bathtub." Other

sales representatives described their sexual episodes with their

girlfriends, spouses, and co-workers. At sales meetings, Copello

frequently heard obscene language used including:

"dick, IF

"dickhead,N "cock," "pussy," "fuck,N and "cunt." Wiszowaty also

unzipped his pants and exposed himself at a bar after a Custom

Event in front of Copello.

Copello also alleges that she was pressured to entertain at

the Crazy Horse and had to listen to repeated conversations about

other sales representatives' experiences at the strip club. In

addition, strippers from the Crazy Horse were hired to work an

annual Custom golf outing. During the golf outing, the strippers

were dressed in short shorts and bikini tops and acted In a

sexually suggestive manner with both Custom employees and

customers.

Copello contends that, beginning in 1995, she continually

compJained to her Division Vice President John Murphy ("Murphy").

She complained to Murphy about Kolzow's conduct, the presence of

the strippers at the golf outing, the comments made by Fleming, and

pornographic materials left on her desk. She also complained to

- 6-

Murphy about Wiszowaty's continual harassing behavier and OSLer's sexually explicit comments. She complained to Mandera and Fleming in 1998 about Kolzow's and WIszowaty's behavIor. Finally, she complained to managers Janene Sudis and Cindy Alan about Tom Fink's inappropriate comments. Copello also complained to Human Resources Manager Terry Klonowski about Vice-President of Sales Mike Maher harassing Allison Kennedy in 1998.
On January 8, 1999, Copello complained orally to Human Resources Manager Terry Klonowski about inappropriate and sexual comments she had heard in the office and at company events. On January 14, 1999, Copello submitted a memorandum stating that she was the victi.m of 17 categories of misconduct. The mi. sconduct included verbal comments of a sexual nature includi.ng being quest.ioned about her own personal sexual experiences and being subjected to the discussion of others' sexual experiences, profanity, sexual and racist jokes, inappropriate sexual materials left on her desk at work, pressure to entertain at the Crazy Horse, the presence of Crazy Horse strippers at Custom sponsored events, and unwanted physical contact. She also alleged that she was excluded from company events on basis of her sex, received unequal pay, and other inferior perks.
Following her written complaint, Klonowski and Boyle conducLed an investigation into Copello's allegations. The investigation included interviewing potential witnesses including Mandera. Most
- 7-

of the witnesses denied her allegations. As a result of the

investigation, written warnings were issued to several employees as

the result of inappropriate language. A disciplinary warning was

also issued to Wiszowaty for exposing himself at a bar.

In June 1999, Copello wrote a memorandum to Mandera regarding

the upcoming Custom golf outing. She stated that the presence of

Crazy Horse strippers at the outing created a sexually-hostile

environment. On June 23, 1999, Mandera responded that attendance

at the Event was not required and that nO one at the Event would be

unclothed. Also in June, Copello wrote to Mike Maher stating that

she wanted a separate golf outing, the same terms and conditions

regarding expense accounts and benefits that male representatives

had, and she wanted him to accompany her on weekly sales calls. On

October 14, 1999, Copello wrote to Klonowski stating that at a

sales meeting. Mandera repeatedly yelled "fuckH and Lold her Lhat

"fuck you, Catheri,ne Copello, I don't give a fucking damn about

your lawsuit.

. Boyle interviewed Copello regarding her

recent complaint on October 25, 1999. He also interviewed each

attendee of the sales meeting. Each individual stated that Mandera

had used profanity, had apologized, but had not mentioned the

lawsuit. Mandera admitted using profanity but denied making the

comment regarding the lawsuit. Boyle met with Copello again in

November to discuss her allegations relating to the golf outing.

- 8-

Copello alleges that following her oral and written complaints, Mandera made several comments telling her that i.f she did not drop the EEOC lawsuit things were going to get ugly, lives would be ruined and that she would never be able to work in the trucking industry again. In addition, Kolzow began to treat her differently, including not giving her clients sufficient attention and delaying giving her quotes.
B. Allison Kennedy Kennedy worked for Custom from August 17, 1998 until October 20, 1998. She was hired for her expertise in air freight business. Kennedy alleges that during her seven weeks at Custom she was subjected to unwanted touching and numerous inappropriate sexual comments. She alleges that when she began the Vice President of Sales John Murphy refused to train her and told her it was because she was female. She informed Mandera about Murphy's conduct and was told she would receive training without going through Murphy. She also alleges that her supervisor, Mike Maher, who replaced Murphy as Vice-President of Sales, repeatedly questioned her about her sex life, suggested that she exchange sexual favors for business with potential customers, frequently told her to let customers touch her in a sexual way to generate bus.i.ness, and constantly questioned her about her sexual experiences with her boyfriend. While Kennedy was climbing the stairs, Maher put his hand under her skirt and grabbed her butt. On a separate occasion,
- 9-

he again grabbed her butt when she walked by him in the Custom hallway. Finally, when driving on a trip to a sales call, Maher grabbed her leg, motioned his hand on her breast and down to her inner leg. He repeatedly asked her if she engaged in oral sex and also asked her if "she teek it in the butt.n
Kennedy alse alleges that George Wiszowaty made sexual comments at sales meetings including "slamming women in the butt,n Or grabbing their "boobs. n At sales meetings, the representatives would discuss sleeping with strippers from the Crazy Horse and their activities at the strip club. Kennedy heard truckload employees refer to women as "bitches" and "cunts."
After refusing Maher's advances, on October 20, 1998, Custom fired Kennedy with the stated reason that she failed to generate revenue. Following her termination, Konnedy attempted to contact Mandera to discuss her situation with Maher and her termination. Malldera allegedly told her that Maher could run his department as he saw fit. Prior to her termination, Kennedy complained about Maher's actions to Copello and Mike Fisher, the Customer Service Manager. Copello contacted Klonowski and informed her of the harassment Kennedy was experiencing one day prior to Kennedy's termination.
c. Kimberly Fritkin Kimberly F'ritkin was hired on October 12, 2000 as a sales representative and paid $1,000 weekly. The parties dispute whether
- 10 -

Frilkin was an employee or an independent contractor as well as

whether the weekly $1, 000 was a draw agai.nst commiss.i.on or a

salary. At the end of 2000, Fritkin was issued a Form 1099.

During her time at Custom, Fritkin reported solely to Bob Heinz

("Heinz"), the Vice-President of Sales. She contacted him for

leads and reported to him on her sales calls and any issues with

clients. On a few occasions, she accompanied Heinz on lunches to

entertain clients.

She attended sales calls with Heinz

approximately once a week.

Fritkin alleges that Heinz, her direct supervlsor, constantly

subjected to her to inappropriate behavior. Heinz would arrange La

meet her to dj.scuss business and then begin talking to her about

beginning a personal relationship. When Fritkin called him to

discuss business, he would change the subject to discuss hIs

personal problems and how he wanted to sleep with her. He told her

ho missed her and was in love with her. He continually touched

her, including grabbing her arm or hand, trying to kiss her, and

touching her butt. Heinz also tried to put his foot up her skirt

at a meeting with a client. Fritkin kicked his leg in response and

later the client contacted her saying that "Bob was scum." He

repeatedly told her he wanted to have sex with her. He also drove

by her house on numerous occasions and called her throughout the

day and night attempting to meet in order to have sex. He

explicitly told her that he wanted to "fuck" her. After a sales

- 11 -

rneeting, he attempted to pull her into a hotel. He invited her to the Crazy Horse and reprimanded her for failing to take clients there.
When Fritkin was in the Custom office building, Steve Laue (RLaue-) put $100 on the table. Heinz told her the $100 was a bet on who could sleep with her first. Fritkin told Heinz to Rfuck off." Heinz rospondod that RIf you fuck with one person, you're just going to fuck yourself.- He also told Fritkin that if she said anything about him, he would make her life a living hell. After that incident with Steve Laue, Fritkin's compensation was lowered from $1,000 a week to $750. Custom alleges that the decrease In salary was a result of Fritkin not generating sufficient revenue. When Heinz stopped making the comments, he ceased in helping Fritkin with her sales and said Rwhy should I help you if you don't do anything for me?"
FriLkin never received a copy of Custom's Employeo Handbook or a copy of its anti-harassment policy. She had no information concerning the complaint procedure. She asked Heinz on several occasions to stop the behavior and that told him that he was making her job impossible. E:ventually, she asked to meet with Mandera wi thout Heinz. She waited to meet with Mandera for an hour and half but he left his office informing her that he did not have time t.o meet.. Following t.hat. incident., Frit.kin resigned from Cust.om.
- 12 -

D. Linda Dyson Linda Dyson worked at Custom from February 1998 to April 1998 as a night biller, entering computer information related to truck transportation. She filled out the standard employee paperwork on her first day and met Boyle. Dyson did not receive an employee handbook. Dyson claims that she heard inappropriate sexual and racist comments in the lunchroom. She also alleges that Marcelino repeatedly used profanity in front of her. In March, Marcelino began speaking directly with Dyson. He asked Dyson to "fuck U him. She told him no and that he had a filthy mouth. At one time, he also asked her to join him at the Crazy Horse. Dyson also heard Marcelino call women "bitches u and "cunts. u When Marcelino walked by Dyson, he would get too close and rub against her. Dyson told her supervisors that Marcelino was harassing her and that he had a filthy mouth sometime in March. They responded that Marcelino was Mandera's friend. Dyson quit Custom due to an altercation was another female employee.
E. Janene Sudis Sudis worked at Custom from 1995 to 2001, eventually becoming a manager. After attending a Custom event for managers at the United Center, Sudis joined coworkers, including Mandara, at tha Crazy Horse. She alleges that she felt pressured to attend in order to be a team player. While at the Crazy Horse, strippers
- 13 -

came off the stage and performed lap dances on each of the four female employees that were present. A female stripper sat on Sudis' lap with her breasts in front of Sudis' face. After the lap dance, Sudis left in the first available car. Sudis also alleges she was exposed to sexually suggestive behavi.or because the Crazy Horse strippers selling tickets at the golf outing dressed and acted in a sexually provocaLive manner. A fellow employee also asked her whether she got the "fire hose H referring to sex with her husband who was a firefighter. Finally, Sudis heard an array of sexually explicit comments made by various Custom employees including Wiszowaty and Marcelino. She also alleges that she saw a co-worker fondle another co-worker's breasts.
Sudl.s complained to Klonowski, Steve Laue, and Mandera about a female co-worker's dress code but was informed the outfit was permitted by the code. Aside from complaining about a co-worker' a d resa, Sudis did not complain about the lap dance or the other inappropriate comments. Sudis attended a seminar on sexual harassment held within Custom and she also received an employment packet detailing Custom's policy on sexual harassment multiple times.
II . ANALYSIS A. Summary Judgment Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file,
- 14 -

together with the affidavits, if any, show that there is no genuine lSSUG as to any material fact and that the moving party is entitled to a judgment as a matter of law. H FED. R. CIV. P. 56(c). The court must view all the evidence and any reasonable inferences therefrom in the light most favorable to the nonmoving party. See Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000).
The burden is initially upon the movant to demonstrate the absence of a geTIlJlne issue of material fact. Celotex Corp. Catrett, 477 U.S. 317, 323 (1986). In assessing the movant's claim, the Court must view all the evidence and any reasonable inferences that may be drawn from that evidence in the light most favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.2000). Once the moving party has met its burden, the nonmoving party "may not rest upon the mere allegations U contained in its pleading, but rather "must set forth specific facts showing that there is a genuine issue for trial. H Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 E'.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 ".2d 613, 620 (7th Cir. 1989).
B. Administrative Determination to Bring Case as a Class Defendants argue that the EEOC's investigation was insufficient to support its complaint. Contrary to Defendants' assertions, there is no judicial review of the adequacy and scope of the EEOC'S investigation. The Seventh Circuit recently ruled in
- 15 -

F:};OC v. Catepillar, Inc., 409 F.3d 831 (7th Cir. 2005) that the court had to accept the EEOC's administrative determination concerning alleged discrimination discovered during its investigation and could not itself review the scope of the investigation.
c. Sexua1 Harassment Pursuant to Title VII, it :is "an unlawful employment practice for an employer . . to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (1); see Whittaker v. Northenl Illinois University, 424 F.3d 640, 645 (7th Cir.2005). Defendants seek dismissal on the grounds that PlaintiffS failed to establish they were subject to a hostile working environment. To sustain a claim for hostile work environment, a plaintiff must establish that she was subject to harassment because of her sex, that the harassment was "so severe or pervasive as to alter the conditions of [her] employment and create an abusive working environment. E.E.O.C. v. Walsh Constructi,on Co .. No. 03 C 3601, 2006 WL 2524140, at *3 (N.D. Ill. Aug. 30, 2006, citing HiltDyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir. 2002). "Whether the harassment rises to this level turns on a constellation of factors that include 'the frequency of the discriminatory conduct; its severity; whether it is physically
- 16 -

threatening Or humiliating, Or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Hostetler v. Quality Dining, Inc. 218 F.3d 798 (7th Cir. 2000) (citations omitted). The impact of the harassment upon the plaintiff's work environment is assessed both objectively and
subjectively. ld. The work environment cannot be described as
"hostile" for purposes of Title VII unless a reasonable person would find it offensive and thc plaintiff actually perceived it as such. Id., (citation omitted).
1. Catherine Copello Defendants argue that Copello's allegations consist of falsehoods and exaggerations. They argue that while she complains about the presence of strippers at various Custom events, she admi ts that nO one actually took their clothes off. Similarly, although she complai.ns about the presence of pornography at a seminar, she never actually saw the pornography. Additionally, Defendants argue that many of Copello's complaints are time barred because the conduct occurred mOre than 300 days prior to the filing of her EEOC chargc and constituted discrete acts, not part of a pattern of activity. But see National R.R. Passenger Corp. v. Morgan, ,,36 U.S. 101, 117 (2002) (holding that the entire time period of harassing conduct may be considered). Defendants also argue that many of her claims are not actionable because they were directed at her co-workers, not her personally. They allege tllat
- 17 -

what remains of her allegations are a serles of isolated events involving inappropriate language that do not rise to the level of sexual harassment required by Title VII. Finally, Defendants argue that Copello cannot satisfy the subjective test for any harassment claim because, they claim, she did not complain about the behavior and willing participated in parts of it.
The Supreme Court has held that "the objective severity of the harassment should be judged from the perspective of a reasonable person in plaintiff's position." Oncale v. Sundowner Offshore Servs., Inc., 523 O.S. 75, 81 (1998) On one side of the spectrum lies sexual assaults, other physical contact, uninvited sexual solici tat ion, intimidating words Or acts, obscene language or gestures and pornographic pictures. Meritor Say. Bank, FSB v. Vinson, 477 O.S. 57, 67 (1986); Hostetler, 218 F'.3d at 807. On the other side lies occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. Id. The conduct that Copello alleges should be viewed cumulatively and not a series of isolated incidents, including incidents occurring prior to the 300day window. See Hostelter, 218 F.3d at 808 ("The continuing violations doctrine allows a court to consider as timely all discriminatory conduct relevant to a claim, so long as there is sufficient evidence of a 'pattern or policy of discrimination.'''); see also Silverman v. Johnson, NO. 01 C 359, 2004 WL 2044182, *12, fn.2.
- 18 -

The type of conduct Copello alleges lies on the actionable

side of the line dividing abusive conduct from offensive behavior.

First, Copello alleges unwanted physical contact, in part done by

her supervisors, Fleming and Rhode. See Doe v. Oberweis Dairy,

456 f.3d 704 (7th Cir. 2006) ("The sexual act need not be committed

in the workplace, however, to have consequences there."). She also

alleges numerous uninvited sexual solicitations directed at her

pe,,·sonally. See Qu,]ntock v. Shared Marketing Servs., 312 F.3d 899,

904 (7th Cir. 2002) (reversing grant of summary judgment where

plaintiff alleged outright sexual proposition by company

president)

Copello alleges the constant use of inappropriate

language, discussion of sexual exploits, both in her presence and

directed at her and pressure to attend company events where

inappropriate conduct occurred. Taken as a whole, the alleged

conduct is sufficient to permit a reasonable jury to find thilt

allegations altered Copello's conditions of employment ilnd

constituted sexual harassment. Further, when viewed in Copello's

faVor, the record supports the inference that she viewed her work

environment as hostile as a result of the harassment. Before her

written complaints, she complained orally on several occasions to

her supervisor that the conduct was offensive and that she was not

being treated equally. Those actions demonstrate concern over the

conduct and an unwillingness to tolerate further harassment.

- 19 -

2. ~lison Kennedy

Defendants argue that the lack of detail regarding

inappropriate comments made by her co-workers show that Kennedy

lacks competent evidence to support her charge of sexual

harassment. They also argue that the touching by Maher does not

rlse to the level of sexual harassment required by law.

The conduct that Kennedy was subjected to constituted sexual

harassment. Her direct supervisor inappropriately touched her,

questioned her abouL her personal sexual experiences and suggested

that she use sex to generate business. Perhaps most severe, Maher

reached under Kennedy's skirt to grab her butt. Hostetler, 218

F.3d at 808 ("forcible physical contact of a rather intimate

nature" falls on aCLionable side of line). She was also subject to

inappropriate comments by co-workers. Kennedy specifically alleges

that Wiszowat_y made ,;exual comments In front of her including

"slarruning women In the butt" or grabbing their "boobs." Smith v.

Sheahan, 189 F.3d 529 (7th Cir. 1999) ("Although they may be less

important in defining her work environment

incidents

'd.i.rected at others and not the plaintiffs

do have some

relevance in demonstrating the existence of a hostile work

environment.' ") (citation omitted)

A reasonable jury could

conclude that the conduct Kennedy suffered was severe enough to

al ter the terms oj' her employment. Further, Kennedy's repeated

- 20 -

requests to Maher to stop the behavior show that she deemed the

conduct to be harassment.

a. Mitigation of Damages

Custom argues that Kennedy's damages should be limited because

she failed to mitigate her damages. In order to show that Kennedy

did not mitigate her damages, Defendants must prove that (1) she

failed to exercise reasonable diligence to mitigate and (2) there

is a reasonabJ.e likelihood that she might have found comparable

work by exercising reasonable diligence. Meyer v. United Airlines,

950 F. Supp. 874, 876 (N.D. Ill. 1997). Contrary to Defendants'

assertions, Kennedy testified that she took steps to find a

comparable job including reviewing the classified ads, looking On-

line for a position and going on interviews. Thus, an issue of

fact exists with respect to Kennedy's mitigation of damages.

3. Kimberly Fritkin

a. Independent Contractor

Defendants allege that Fritkin was an independent contractor

and thus, not protected under· Title VII. Courts analyze five

factors to determine independent contractor status:

(1) an

employer's control and supervision of a worker; (2) the ktnd of

occupation and nature of skill, including if skills are obtained in

workplaces; (3) the responsibility for cost of operation; (4) the

method and form of payment and benefits; and (5) the length of

employment and/or expectations. Knight v. United Farm Bureau Mut.

- 21 -

Ins. Co., 950 F.2d 377, 378 (7th eir. 1991). Of the factors to be

considered, the employer's right to control is the most important

when determining whether an individual is an employee or an

independent contractor. Id.

Defendants allege that Custom had no control over Fritkin

because she did not have to "punch in,n had no set hours, worked

out of her home and did not complete expense reports. In addition,

Defendants argue that she did not have office keys or attend weekly

sales meetings. Finally, Defendants argue that the form of payment

evidence fritkin was an independent contractor. She received a

Form 1099 rather than a Form W-2, paid her own taxes, and did not

receive vacation or sick days.

Plaintiffs argue that Fritkin was an employee of Custom

because she had to regularly roport to Heinz and was under his

supervision. Custom limited the companies Fritkin could see and

she was trained on the job. Further, her phone and other bills

were paid for and her driving expense was factored into her salary.

She was provided with tickets for entertaining and paid lunches for

clients. She was also provided with Custom business cards to

distribute. Her commitment to Custom was also open-ended.

frilkin came to Custom with sales experience in the

transportation industry. "An individual's unique work skills may

indicate independent contractor status.

(Citation omitted).

However, if the indi vi.dual requires substantial training and

- 22 -

supervision, an employee/employer status is more likely." Worth v. Ty.ler, 276 F.3d 249, 263 (7th Cir. 2001) (citing Knight, 950 F.2d at 380). The fact that Fritkin received a Form 1099 and not a Form W2 also supports a finding that Fritkin was an independent contractor. These factors alone, however, do not end the inquiry. See Worth, 276 F.3d at 264.
The remaining factors support that FriLkin was an employee. Although Defondants argue that Fritkin did not receive benefits, she was offered health insurance but declined coverage because she recei ved insurance through her husband. Her employment was not for a set amount of time but was open-ended. This also indicates an employer/employee relationship. Although Fritkin was I'esponsible for paying her own taxes and was issued a Form 1099, the available evidence supports that Fritkin regarding her weekly pay as a salary. She requested to be responsible for her own taxes because at the Lime she became employed at Custom, she was a single mother of two children and was desperate for cash. Thus, she explained to Custom that she needed to earn a take home salary of $1, 000. Despite the contract language, Fritkin did not know what a udraw" was and understood that she was earning a salary.
For a portion of her employment with Custom, Fritkin had her own desk at Custom. She attended training and was required to fill out call reports for her supervisor detailing what she did each week. Heinz, her initial interviewer and direct supervisor,
- 23 -

contacted her regularly to discuss her contacts. Although she did

not attend weekly sales meetings due to her children's schedule,

she went to the office at alternative times so that Heinz could

review the content of such meetings. He frequently accompanied her

on sales calls and outings with clients. Although Fritkin did not

prepare expense reports, she testified that such reports were

unnecessary because any entertainment, such as tickets for her

clients, were provided by Custom. Additional entertainment, such

as meals with clients, were paid for by Heinz because he

accompanied her on those outings. Although Custom argues that

Fritkin did not sign a non-compete agreement and was free to work

for its comp'ltitors, the on J y ttme b"ritkin was interested In

engaging in other business, she was discouraged from doing so and

told by Heinz to stay with Custom.

Finally, the:re we:re

rostr'ictions on where Fritkin could attempt to sell, she had to

obtain Heinz's approval before entering different areas. A review

of the :relevant factors demonstrates that there i,s sufficient

evidence to support a finding that Fri.tkin was an employee. Knight

v. United Farm Bureau Mutual Ins. Co., 950 F.2d 377, 378 (7th Cir.

.1991 )

b. HostUe Work Environment

Defendants argue thClt because pritkin did not complain, she

fails to satisfy the subjective element for an individuCll

harassment claim. Additionally, they argue that the complained of

- 24 -

actions did not alter her work environment.

Contrary to

Defendants' assertions, the alleged conduct 1S sufficient to

consti tute sexual harassment. Fr i t kin was subj ect to constant

harassment by her direct supervisor, who was the Vice-President of

Sales. lie explicitly propositioned her for sex, including telling

her he wanted to "fuck" her. He physically touched her, including

on her butt and attempted to put his foot up her skirt. I-lis told

her that "[i]f you fuck with one person, you're just going to fuck

yourself." A reasonable jury could conclude that the frequency and

severity of these actions unreasonably interfered with Fritkin's

work environment. Although Fritkin did not complain to human

resources, she was not aware of the complaint procedure and was in

fear of losing her job. Also, she did not receive the employee

handbook. Further, there is an issue of fact with regard to

whether Fritkin attempted to complain to Mandera. Thus, there is

sufficient evidence to support a finding that Fritkin perceived her

work environment as hostile.

4 . Linda Dyson

Defendants argue that none of the COIllIllents Dyson alleges were

directed at her. While Defendants admit Marcelino may have used

foul language and touched her, Defendants argue this conduct does

not support a sexual harassment claim. Although Dyson claims to

have complained, she cannot recall the names of the individuals to

whom she complained.

- 25 -

The line between an unpleasant working environment consisting of vulgar and offensive conduct and a sexually harassing environment consisting of conduct that is deeply offensive is not a bright one. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995) Certainly, Marcelino's conduct was vulgar and offensive. His constant use of profanity, however, does not give rise to a sexual harassment claim. The "rubbingH against Dyson when ho walked by her does not constitute the type of forcible physical contact of an intimate nature that has been found sufficient to satisfy sexual harassment standards. His most offensivo action, the proposition that he wanted to "fuckH her was indeed offensivo but was an isolated incident. See Whittaker, 424 F.3d at 645-46 (holding that vulgar, coarse and boorish behavior spread over several months does not amount to actionable sexual harassment), citing Bakersville, 50 F.3d at 430. Thus, Defendants' Motion for Summary Judgment with regard to Dyson's sexuc\l harassment claim is granted.
5. Janana Sudis Sudis' allegations center around her going to the Crazy Horse strip club and receiving a lap dance. Sudis admits that it "was not dictated H that she go and that one of the women who had gone to the basketball game went home instead of going to the strip club. She went because she thought management would have looked di fferently at her if she had not attended. However, Sudis
- 26 -

admitted that she did not believe the woman who chose not to go to the Crazy Horse suffered any adverse consequences. Further, Sudis did not stop tho lap dance and never complained about it, despite knowing the proper procedure and having complained about other matters.
Sudis' other allegations do not involve any direct sexual propositions or sexually oxplicit language directed toward hor. Further, these events took place over the seven years that Sudis worked at Custom. The conduct Sudis alleges is more consistent with isolated events than a continuing practice and did not rise to the level of a sexual harassment claim. Summary judgment is granted with respect to Sudis' sexual harassment claim.
D. Ellerth Defense In Ellerth and Faragher, the Supreme Court established the standards that govern an employer's liability for sexually harassing behavior of a supervisor Loward a subordinate employee.
Burlington Industries, Inc. v. Ellerth, 524 u. S. 742 (1998); Faragher v. City of Boca Raton, 524 u.s. 775 (1998); Molnar v.
Booth, 229 F.3d 593, 599 (7th Cir. 2000). The Court created a distinction between "cases in which the supervisor takes a tangible employment action against the subordinate and those in wh,ich he does not." Id. at 600. The Court explained that an employer was vicariously liable "to a victimized employee for an actionable hosLile environment created by a supervisor with immediate (or
- 27 -

successively higher) authority over the employee" where "the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765. In cases where the supervisor took no tangible employment action, however, the Supreme Court permitted the defending employer to raise an affirmative defense to liabilIty or damages. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 76S. In order to assert the affirmative defense Defendants must prove two elements: they exercised reasonable care to prevent and correct promptly any harassi.ng behavior, and the victimized employee failed to take advantage of preventive or corrective opportunities provided by the employer. Id.
If the harassment was not done by a supervisor, Custom is only liable for an employee's conduct if it was negligent either in discovering or remedying the harassment. Hall v. Bodine Electric Co., 276 F.3d 345, 356 (7th Cir. 2002) (citations omitted); Cerros v. Steele Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005). An employer satisfies its legal duty in coworker harassment caSeS "if it takes reasonable steps to discover and rectify acts . . . of harassment of its employees." ld., citing Parkins v. Civil Constructors of Ill. Inc., 163 F.3d 102"1, 1032 (7th Cir. 1998).
Defendants argue that all. Plaintiffs' claims are barred under Ellerth. Defendants argue that no plaintiff can prove any tangible
- 28 -

action was taken against her by a harassing supervisor. See Hall v. Bodine Electric Co., 276 F.3d 340, 305 ("7th Cir 2002) ("An individual is not a supervisor unless he possesses the authority to directly affect the Lerms and conditions of victim's emp1oyment. ") (citation omitted). Th"y allege that any supervisor alleged to have engaged in harassment was not involved in the decision to terminate the individual. Further, Defendants argue that the first prong of Ellerth is satisfied because they took reasonable and preventive and corrective measures. They claim to satj.sfy the second prong of the affirmative defense because Plaintiffs failed to utilize the corrective opportunities available to them.
1. Catherine Copello First, Defendants argue that Copello cannot prove any tangible action was taken against her by a harassing supervlsor. They allege that any supervisor alleged to have engaged in harassment was net involved in the decision to lower her salary or offer her lessor perks than her male colleagues. Contrary to Defendants' assertions, Copello suffered a tangible action when her salars was lowered and again when she was terminated. Copello alleges harassment by a number of her supervisors, including Mike Fleming. She also alleges inappropriate comments and conduct by Marldera that contributed to the alleged hostile environment. It lS not clear from tile record who had input into the decision to lower
- 29 -

Copello's salary. Thus, there is an issue of fact as to whether a harassing superv1sor was involved 1n the decision to lower Copello's salary.
Defendants also argue that the decision to terminate Copello was separate and apart from the alleged harassment. Defendants claim that Copello was terminated because she was one of the three lowest performers who were fired when Custom took on a competitor's business. By contrast, Copello argues that her accounts were flot properly credited it to her, that she was assigned the lowest earning territory, Elgin, and she was informed that no one had ever been able to make Elgin profitable. Further, Copello submits revenue numbers showing that she was improving and that she was not one of the three lowest individuals. There is a genuine issue of material fact as to whether Copello was terminated for her performance or due to her complaints regarding sexual harassment. Thus, summary judgment is denied on the Ellerth defense with regard to Copello.
2. Allison Kennedy Kennedy had only been employed for seven weeks when she was terminated. During those seven weeks, Maher was her single and direct supervisor and undoubtedly had input into the decision to terminate her. Maher trained her and accompanied her on sales calls. For her entire tenure at Custom, Kennedy alleges that Maher constantly harassed her. Before she was fired, she was told that
- 30 -

she was doing a good job. After she refused Maher's advances, she was terminated. When she attempted to contact Mandera to discuss her termination, she was LaId that Maher could run his department as he saw fit. A jury could infer that the decision to terminate Kennedy was motivated by her refusal to engage in relations with Maher and that Maher made the decision to terminate her. Thus, summary judgment is denied on this i.ssue.
3. Kimberly Fritkin Fritkin's pay was decreased by 25% prior to her resignation. Fritkin only had contact with Heinz, her alleged harasser. He interviewed her, participated in the decision to hire her, oversaw her weekly activities, and accompanied on her on sales calls. Fritkin alleges that her pay was decreased only after she told her alleged harasser "to fuck off" and refused to glVe In to his advunces. Based on the record, Heinz would have participated in the decision to decrease her pay. Again, there is an issue of fact with regard to whether Heinz was involved in the decision to lower Fritkin's pay and whether her pay was lowered for reasons unrelated to the alleged harassment. For these reasons, summary judgment is denied On the Ellerth Defense with regard to Fritkin. 4. CUstom Undertook Reasonable and Corrective Maasures Defendants also argue that they took reasonable and corrective measures by including a sexual harassment policy in its employee handbook. See Shaw v. AutoZoIle, Inc., 180 F. 3d 806 (7th eir. 1999)
- 31 -

(Defendant exercised reasonable care by including a detailed policy prohibiting sexual harassment in its employee handbook.) Fritkin, however, never received the employee handbook. Thus, Defendants fail to satisfy the first prong of the Ellerth defense with regard to Fritkin.
Although implementation of a sexual harassment policy may be sufficient to prevent sexual harassment that does not establish that Custom acted reasonably in remedying the harassment after it occurred or in preventing future misconduct. Cerros v. Steel Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005). Before taking her complaints to the human resources department, Copello alleges that she complained several times to a Vice-President, John Murphy. As the Seventh Circuit held in Ceu:os, the employer's knowledge of the misconduct is what is critical, not how the employer came to that knowledge. Custom conducted an investigation into Copello's complaint only after she brought them in writing to the human resOurCeS manager. The investigation ended in written warnings and one disciplinary wa t:n lng, gl ven for an employee exposing his penis in front of his co-workers. Given the severity and extent of Copello's complaints, a reasonable jury could conclude that Custom did not act reasonably In remedying Lho harassment.
With regard to Kennedy, Copello complained to Klonowski about the Maher's alleged harassment of Kennedy. Kennedy was terminated
- 32 -

the next day and Klonowski failed to investigate any of the claims. Failing to investigate allegations of harassment does not consLitute reasonable action in remedying the harassment after it occurred or in preventing future misconduct. Carras, 398 F.3d at 952. Thus, Custom failed to satisfy the first prong of the Ellarth defense with regard to Kennedy as well.
5. P~aintiffs did not Fai~ to Uti~ize Corrective qpportunities Copello followed Custom's sexual harassment policy by complaining first Lo a Vice-President and later to human resources. Kennedy complained to a manager. Fritkin was not aware of Custom's policy becallse she never received the employee handbook. As such, Custom fails to establish there is no issue of fact as to the second prong of the Ellarth defense. 6. CUstom was not Neg~igent with
Respect to Co-Worker Harassment Even if no tangible action had been taken by a harassing supervisor, Custom also fails to establish that it was not negligent as to any co-worker harassment with regard to Copello. According to Copello's allegations, she repeatedly complained to John Murphy regarding the inappropriate language and touching and the sexual propositions. Before Copel.lo went to human resources, these complaints were never addressed.
- 33 -

E. Retaliation 47. U.S.C. § 2000 prevents an employer or labor organization from discriminating against someone because "he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated In any manne!: in an investigation, proceedi.ng, Or hearing under this subchapter. n 42 U.S.C. § 20UO(e). To overcome Defendants' sUITunary judgment motion in Lhoir Title VIr retaliation claims, Plaintiffs must show either di!:ect evidence of retaliation or indirect evidence of the employer's retaliatory intent using the burden-shifting framework set forth In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.?d 668 (1973). See Durkin v. City of Chicago, 341 F.3d 606, 611 (7th Cir. 2003). Under the direct method, Plaintiffs must show (1) protected acLivity, (2) adverse action and (3) a casual connection between the two. The adverse action requires plaintiff to show that "a reasonable employee would have found the challenged action m"terially adverse, which [] means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burl.ington Northern & Santa Fe Railway Co. v. Whi te, 126 S. Ct. 2405 (2006). Under McDonnell, Plaintiffs must first establish a prima facie c"se of d.iscrimination by showing that she (1) engaged in a protected activity under Title VII; (2) she met the employer's
- 34 -

legitimate expectations; (3) she suffered an adverse employment action; (4) a causal connection exists between the advBrse action and the protected activity and (5) slle was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Williams v. Ill. Dept. Of Corrections, No. 05 C 2151, 2006 WL 2495020, at *6 (N.D. Ill. Aug. 25, 2006); Hill v. Am. Gen. Ben. Fin., 218 F.3d 639, 645 (7th Cir.2000). The burden then shifts to the employer to articulate a non-discriminiltory reaSOn for its actions. If the employer succeeds, the plaintiff may still prevail by demonstrating that the employer's stated reasons for the challenged action are merely pretextual and the employer's actual reason was di.scriminatory. Rennie v. De,lton, 3 F.3d 1l00, 1108-09 (7th Cir.l993).
1. Catherine Copello Copello attempts to prove the retaliatory causation through the di.rect method, using direct and circumstantial evidence to show she engaged in protected activity and suffered resulting adverse employment action. See Sylvester v. SOS Children's Villages
Illinois, Inc., 453 F. 3d 900, 902 (7th Cir. 2006) ("if [the plaintiff] can prove by means of circumstantial evidence that he engaged in protected activity (filing a charge of discrimination) and as a result suffered Lhe adverse employment action of which he complains, that is fine" under the direct method.).
- 35 -

Copello argues that she engaged in protected context when she made internal complaints about the harassment. She lists several adverse actions that occurred as a result of her complaints including her decrease ln salary, which she argues was not voluntary, her difficulty obtaining service for her clients through Kolzow after she complained about him, and Mandera's repeated comments that lives would be ruined if she proceeded with the EEOC charge, things would get ugly and she would not be able to work in the industry. The alleged threats by the company's president are direct evidence of a retaljatory motive.
Custom argues that Copello did not engage ln protected contacts because many of her complaints were not through the formal complaint process. See Durkill v. City of Chicago, 241 F.3d 606 (7th Cir. 2003). Although the Seventh Circuit held in Durkill that an employee's informal complaints were not sufficient to constitute protected activity, it focused on the fact that the complaints were "vague and concerned subjects other than harassmentff and thus were insufficient to notify her employer of a Title VII violation. See clolles-Walsh v. TOWll of Cicero, No. 04 C 6029, 2005 WL 2293671 (N.D. 111. Sept. 14, 2005) ("a jury reasonably could find that [informal] complaints constitute protected activity.ff). Unlike the complaints in Durkill, Copello's complaints were specific and related to sexual harassment.
- 36 -

Custom also argues that Copello was a low performer arrd tllat was the reason for her decrease in pay and subsequent termination. Thus, there was no adverse action related to any protected activity. However, there are disputed facts regarding the level of Copello's sales and whether sales were properly credited to her. Copello was also told that her territory was a difficult one and that no one had been able to make it adequately productive. Fu rther, Copcllo alleges that after she complained, she was subj ect to increased criticism and threats by Mandera if she did not drop tire suit. Collins v. Village of Woodbr_idge, 96 F. Supp. 2d. 714 (N. D. Ill. 2000) ("a pattern of criticism by supervisors following tire making of complaint can establish the existence of causal link. ") .
S"sed on " number of disputed facts, Copello's subsequent decrease in pay and the alleged conduct by Kolzow and Mandera, there is sufficient evidence to create a question of fact for the Jury. As such, summary judgment is denied as to Copello's retaliation claim.
2. A~~iBon Kennedy Kennedy argues that she engaged in protected activity when she complained to Maher, fisher and Copello (and in turn to Klonowskt) about Maher's InappropriaLe beh"vior and complained to Mandera about Murphy's refusal to train her. Shortly following Kennedy's rejection of her direct supervisor, who was also the Vice-PresidenL
- 37 -

of Sales, and one day following report of such conduct to Lhe human resources manager, Kennedy was termi.nated. See Dey v. Col t Const.
& Developwent Co., 28 F.3d 1446 at 1457.
Defendants argue that Kennedy's complaints did not constitute protected activity. Kennedy, however, did complain through the formal channels established by Custom by complaining to Maher, a Vice-President, and asking him to stop his inappropriate behavior. She also followed the formal channels when she informed Mandera that Murphy had refused to train her. Finally, she informed Mike Fisher, a manager. See Jones-Walsh v. Town of Cicero, 2005 WI, 2293671, at *5 ("a jury reasonably could find that [informal] complaints constitute protected activity. "). Defendants also claim that Kennedy failed to generate revenue during her seven-week tenure at Custom and that just.i fi.ed her termination. However" ; Maher's conunenL that Kennedy was doing a good job one week prior to her termination raises an issue of fact. Kennedy was fired almost immedi.ately after rej ecting Maher's advances. The suspici.ous timing of these events supports Kennedy's claim for retaliation. Dey, 28 F.3d at 1458 ("plaintiff may establish a link through evidence that the discharge took place on the heels of protecLed activity. ") (citati.ons omi tted). Additionally, Kennedy attempted to discuss her termination with Mandera, who informed Kennedy that it wa s Maher's department and he could run it the way he wanted. Maher participated in the decision to terminate Kennedy, whether he
- 38 -

acted in retaliation in response La her cemplaints and refusal to

engage in certain conduct wi.th him is a question for the jury.

Dey, 28 1-'. 3d at 1459 ("Summary judgment is generally improper where

the plaintiff can show that an employee with discriminatory animus

provided factual information or other input that may have affected

the adverse employment action.") (citation omitted)

Summary

judgment is denied as to Kennedy's retaliation claim.

3. Kimber~y Fritkin

Plaintiffs allege that Defendants filed a lawsuit against

Fritkin in retaliation for her cooperation and participation in

this lawsuit. Defendants argue that Fritkin's participation in the

lawsuit does not constitute protected activity because she did not

file a charge with the EEOC. Defendants also argue that a

meritorious J.awsuit cannot form the basis for a retaliation claim.

Fritkin's participation In the lawsuit against Custom lS

protected activity under Title VII. See Bur.lington Northern &

Santa Fe Railway Co., 126 S.Ct. at 2414 ("Title VII depends ior iLs

enforcement upon the cooperation of employees who are willing La

file complai.nts and act as witnesses. ") (emphasis added). Undee the

Supreme Court's recent decision in Burl .ington Northe.t'n, Defendants

distinction that she did not file an EEOC charge but is

participating in the lawsuit is arbitrar:S and unpersuasive.

Fritkin also meets the second requirement of the McDonnell

Douglas test because she has suffered an adverse action by being

- 39 -

sued and being forced to incur the expenses of hiring attorneys. Finally, whether Defendants' lawsuit was motivated by retaliation is a question of fact for the jury. The EEOC notes that Custom igr.ored Fritkin's purported debt until after the EEOC filed suit. Custom only filed the lawsuit after it. failed to have Fritkin removed from the class. In addition, Custom has never filed a similar suit against any of its previous sales representatives. See Ajayi v. Ar2lm,lrk Business Servo No. 00 C 4403, 2004 WI, 763840, at *4 (N.D. Ill. March 3, 2004).
According to Fritkin, she understood her $1,000 weekly pay to be a salary and not a draw on conuuission. In fact, Fritkin did not understand what constituted a draw on comrnlSSlon. When she resignod from Custom, she attempted to meet with Mandera but was left waiting for an hour and half only to be told that he did not have time to meet with her. Following her resignation, Fritkin returned her CusLom provided cell phone. As noted above, she did not receive any notification of that she owed Custom money until after she joined this lawsuit and Custom attempted to have her wi thdrawn from the case. The fact that Custom never notified Fritkin that she owed any money until after she joined an employment discrimination lawsuit is sufficient to allow a reasonable jury to conclude that the Lrue motivation for Custom's suit was retaliation.
- 40 -

4. Corinne Miller Plaintiffs argue that llefendants unlawfully retaliated against Corinne Miller because she participated in the EEOC investigation surrounding Copello's complaint and told Mandera she did not want to monitor Copello. Plaintiffs argue that Miller meets the standards for unlawful retaliation under the direct method of proof because she was terminated some time after she informed Mandera she did not want to monitor Copello. Defendants argue that Miller never complained about harassment, and any complai nt was informal. They further argue that Miller had signed a five-year can tract, the contract was complete, Miller's performance was unsatisfactory, and Custom reorganized in a way that eliminated her position. Miller fails to present sufficient proof to survive summary judgment. In order to prove retaliation under the direct method, Miller must present "a convincing mosaic of circumstantial evi.donce. 1I Sylvester, 453 F.3d at 903. The Case can be made by assembling a number of pieces of evidence that, taken On a whole, provide strong support that all point in the same direction. [d. Miller alleges she made an informal complaint about sexual harassment but cannot remember the specifics. A vague complaint 1S not sufficient La satisfy this standard. Soe Durkin, 341 F.3d at 615 (holdiIlg that vague complaints concerning subject maLters other than harassment did not suffice to meet retaliation standard). She
- 41 -

does not remember' any specifics and :Ln fact testified that on numerous occasions, she told human reSOurces that she did not witness any sexual harassment. She testified that she felt she lost her job for three independent reasons; (1) she told Custom she was planning on retiring within a year; (2) her insurance costs wero high and (3) she told Mandera she did not want to monitor Copello. Al though she told Mandera that she did want to be a lattletale on Copello, she cannot remember the specifics of the conversation and believed she mentioned her dislike of the monitoring on one occasion. One such incident does not constitute "a convinci. ng mosaic of circumstantial evidence." In addition, Custom submits evidence that it did not replace Miller because it reorgani~ed its department. As such, summary judgment is granted with regard to Miller's retaliation claim.
F. Sexual Discrimination Claims Title VII prohibits employers from treating employees differently on Lhe basis of their sex. 42 U.S.C. § 2000e-2 (a) (1). To establish a claim of sex discrimination, or disparate treatment, a plaint if £ can proceed either directly, by presenting direct and/or ci..rcumstantial evidence of the employer's discriminatory intent, or indirectly through the burden shifting method set for in McDonnel.7 Doug.Las Corp., 411 U. S. 792. Plaintiff-Interveners Copello and Kennedy elect to proceed under the direct method. 1'he court must consider whether the purported difference in treatment
- 42 -

was due to the Plaintiffs' sex, and whether the different treatment affected Plaintiffs' compensation, terms, conditions, or privileges

of employment. Haugerud v. Amery School District, 259 F.3d 678,

692 (7th Ciro 2001) (citation omitted) . Plaintiffs must prove that

they suffered a materially adverse employment decision.

In

assessing this, the court may consider the quantitati.ve and qualitative changes in the plaintiffs' employment.

1. Catherine Copello

Copello alleges that she was discriminated against with regard

to her pay, training and access to job benefits. She argues that she was treated differently based on her sex when she attended the

Custom golt outing, was requested to entertain at the Crazy Horse,

assigned her territory, and assigned quotes. She alleges that her

car allowance was less than her male co-workers. As evidence of

discriminatory intent, Copello alleges Mandera's comment once she was married that she would not be able to do her job because she

would be "flat on her back." She also alleges it was sex

discrimination because Mandera wanted to meet with both her and her

husband to discuss her compensation. Defendants argue that Copello cannot show any change in

Copello's employment status which resulted from discriminatory

intent. Cont]:ary to Copello's assertion that she was given less of

a Car allowance because she was a woman, Defendants submit evidence

that several men had lesser car allowances than Copello. Copello

- 43 -

also failed to submit evidence showing that her salary and commission were lower than her male counterpart s. Similarly, although Copello waS not given a territory close to her home, only one sales representative resided in his territory. Copello points La one account that she believed was taken frem her on the basis of her:" Sex. Defendants, however, submitted unrefuted documentary evidence that the client requested Mandera.
Tn response to Copello's allegations that she was
discriminated against because of the presence of strippers at the golf event, Defendants point out that Copello was invited to attend the outing (as were her male co-workers) but Mandera explicitly told that her attendance was not required. Further, she had the same access to the Crazy Horse as her male co-workers for client entertainment purposes. Importantly, Copello also had the option Lo entertain clients at the other venues, such as sporting events, theaters, and restaurants. In fact, such entertainment was encouraged. While some of Defendants' comments may have been harassing and offensive, Copello fails to submit the requisite amount evidence that Custom discriminated against her in pay and job benefits in order to avoid summary judgment.
2. A~~ison Kennedy Kennedy alleges that she was discriminated on the basis of her
sex because John Murphy refused to train her. When Murphy refused to train her, Kennedy informed Mandera and was told she would be
- 44 -

trained without Murphy's involvement. Kennedy had experience in sales when she was hired at Custom and received training from individuals other than Murphy. Kennedy does not allege sufficient evidence that her conditions of employment were materially adversely affected by Murphy's refusal to train her. Defendants' summary judgment motion is granted with respect to Kennedy's sex discrimination claim.
III. CONCLUSION
For tone reasons stated herein, the Defendants' Motion for Summary Judgment is granted in part and denied in part.
Defendants' Motion for Summary Judgment i_s granted with rospect to;
1. The sexual harassment claims of Linda Dyson and Janene Sudis;
2. The retaliation claim of Corinne Miller; and 3. The sex discrimination claims of Allison Kennedy and Catherine Copello. The remainder of the Motion for Summary Judgment is denied. IT IS SO ORDERED.
)
Harry D. Leinenweber, Judge
~~~~~~~fiUnited States District Court
Dated;
- 45 -

 </s> Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)
U.S. E.E.O.C. v. Custom Companies, Inc. N.D.Ill.,2007. Only the Westlaw citation is currently available.
United States District Court,N.D. Illinois,Eastern Division.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
andCatherine Copello and Allison Kennedy, PlaintiffsIntervenors, v.
CUSTOM COMPANIES, INC., Custom Executive Group, Inc. and CDN Logistics, Defendants. Nos. 02 C 3768, 03 C 2293.
March 8, 2007.
Noelle Christine Brennan, Brennan & Monte, Ltd., Beth A. Miller, Pontikes & Garcia, Deborah Lois Hamilton, John C. Hendrickson, Richard John Mrizek, United States Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff. Martin K. Denis, Bethany A. Hilbert, Daniel R. Madock, Jessica E. Huebsch-Lynott, Maureen Kay Feldman, Barlow Kobata & Denis, Michael David Robbins, Michael D. Robbins & Associates, Chicago, IL, for Plaintiffs-Intervenors. Diane E. Gianos, Bennett L. Epstein, Eric M. Phillips, James Daniel Dasso, Jason Robert Bent, Karen Ann Kawashima, Foley & Lardner, David A. Epstein, Attorney at Law, Chicago, IL, Daniel P. Colling, Walter B. Connolly, Jr., Foley & Lardner, Detroit, MI, for Defendants.
MEMORANDUM OPINION AND ORDER HARRY D. LEINENWEBER, United States District Court Judge. *1 The Equal Employment Opportunity Commission (hereinafter, “EEOC”) and Plaintiff-Interveners Catherine Copello (hereinafter “Copello”) and Allison Kennedy (hereinafter “Kennedy”) (hereinafter, “Interveners”) (collectively, the “Plaintiffs”) filed suit against Defendants Custom Companies Inc. (hereinafter, “Custom”) and Custom Executive Group (hereinafter, “CEG”) (collectively, the “Defendants”) alleging sexual harassment and retaliation in violation of Title VII of the Civil

Page 1
Rights Act, as amended, 42 U.S.C. § 2000 et seq. A jury found for the Plaintiffs on all but one count (Kimberly Fritkin's sexual harassment claim). Both Plaintiffs and Defendants filed post-trial motions. Due to the sheer number of motions (and issues) to be decided, the facts pertinent to each issue will be recited within the Court's analysis of that issue, rather than presented here.
I. JUDGMENT AS A MATTER OF LAW
A. Custom Executive Group As a Proper Party
Defendants move for summary judgment and/or judgment as a matter of law as to CEG, arguing that Plaintiffs failed to fulfill a statutory prerequisite for suing CEG by failing to include CEG in the only EEOC charge. (Defendants move for summary judgment because this Court has reserved for itself the decision as to the status of CEG and Custom.) Copello's EEOC charge, the only EEOC charge filed by a plaintiff remaining in the case at trial, did not mention CEG.
A plaintiff may add an unnamed defendant if that party had adequate notice of the charge and had been given the opportunity to participate in conciliation proceedings. See Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir.1981). Plaintiffs meet the Eggleston requirements. First, CEG was aware of the EEOC charge. CEG and Custom share an owner, a President, Vice-Presidents of Operations and Sales, and human resources officers. See Eggleston, 657 F.2d at 906 (overlap of board members between named and unnamed parties indicate that unnamed party was aware of EEOC charge). CEG employees Terry Klonowski (hereinafter, “Klonowski”) and Tom Boyle (hereinafter, “Boyle”) testified that they were aware of the charge. The charge alleges that Copello complained about “degrading sexist comments” to Perry Mandera (hereinafter, “Mandera”), CEG's President and owner. Second, CEG had sufficient opportunity to participate in conciliation. “If a party has a close relationship with a named respondent ... and has actual notice of the EEOC charge ... to the extent that [the unnamed party] could have participated in conciliation efforts, the [unnamed party] should not be heard to cry ‘foul’ when later made a defendant in a suit.” Eggleston, 657 F.2d at 907 (quoting Stevenson v. International Paper

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 2

Co., 432 F.Supp. 390, 397-98 (W.D.La.1977)). As in Eggleston, CEG's and Custom's close relationship necessarily suggests that CEG had sufficient opportunity to conciliate. Thus, Defendants' motion is denied.
*2 Defendants have also argued that CEG is not a single employer with Custom. This argument will be addressed in a later section.
B. Kimberly Fritkin's Retaliation Claim
Defendants have moved for a directed verdict and/or judgment as a matter of law as to Kimberly Fritkin's (hereinafter, “Fritkin”) retaliation claim because that claim was brought only as a piggyback (to Corinne Miller's claim) in the 2003 case. Fritkin filed no timely EEOC charge of her own. The EEOC counters that it brought the claim upon meeting Title VII's prerequisites to filing suit based on an administrative determination that a class of individuals was subjected to retaliation by Defendants.
The EEOC may seek relief on behalf of individuals who have not filed charges if it finds “reasonable cause to believe a valid charge was filed in a timely manner.” E.E.O.C. v. Harvey L. Walner & Associates, 91 F.3d 963 (7th Cir.1996). No Seventh Circuit authority requires that the EEOC win on the merits of the timely filed charge. Indeed, “any violations that the EEOC ascertains in the course of a reasonable investigation ... are actionable.” E.E.O.C. v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir.2005). Defendants' only case, Bost v. Federal Express Corp., 372 F.3d 1233, 1241 (11th Cir.2004) is inapposite as it involves a suit filed by a plaintiff (on behalf of himself and a class) before filing the requisite EEOC charge rather than a suit filed by the EEOC on behalf of a class of individuals. See, generally, Caterpillar, 409 F.3d at 832 (distinguishing cases brought by the EEOC and those brought by private individuals). Thus, Fritkin's claim is not barred.
Next, Defendants move for judgment as a matter of law on Fritkin's retaliation claim, arguing that a legitimate lawsuit cannot be the basis for a retaliation claim. This Court has previously held that Fritkin met the second requirement of the McDonnell Douglas test because she suffered an adverse action by being sued and being forced to incur the expenses of hiring attorneys. U.S. E.E.O.C. v.

Custom Companies, Inc., 2006 WL 3087104 (N.D.Ill. Oct.26, 2006); E.E.O.C. v. Custom Companies, Inc., 2004 WL 1638224 (N.D.Ill. July 21, 2004). Based on the evidence at trial, a reasonable jury could have determined that Defendants' lawsuit was retaliatory; Defendants ignored Fritkin's purported debt until after the EEOC filed suit and filed the suit only after Defendants failed to have Fritkin removed from the class. Custom has never filed a similar suit against any of its previous sales representatives. See, Equal Employment Opportunity Commission v. Levi Strauss & Co., 515 F.Supp. 640, 644 (N.D.Ill.1981) (“those suits initiated in state court in good faith ... are not necessarily violations of the Act ... the Commission must demonstrate that the action was filed for improper, i.e., retaliatory, purposes”).
II. DAMAGES
A. Damages Awarded by the Jury
*3 The following damages were awarded by the jury:

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Catherine Copello
Allison Kennedy
Kimberly Fritkin

(harassmen t)
(retaliation)
(harassmen t)
(retaliation)
(harassmen t)
(retaliation)
(attorney fees)

Compensatory

Punitive

$ 100,000 $ 1,000,000

$ 60,000 $ 300,000 $ 50,000 $ 500,000

$ 35,000 $ 150,000

___

___

___ $ 100,000 $ 60,000

Page 3

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 4

B. Compensatory and Punitive Damages
1. § 1981a Statutory Caps
The parties agree that the compensatory and punitive damages are limited by the statutory caps set forth in § 1981a.
a. Caps Apply Per Plaintiff, Per Suit
The parties dispute whether the caps apply per plaintiff or per claim. In Smith v. Chicago School Reform Bd. of Trustees, 165 F.3d 1142 (7th Cir.1999), the Seventh Circuit considered whether a Plaintiff could apply the caps on a per-claim basis, thus recovering up to the cap maximum on each of three racial discrimination counts. The Seventh Circuit held that the caps applied on a perlawsuit, per-plaintiff basis: “the unit of accounting is the litigant, not the legal theory.” In response to the Plaintiff's argument that this result would lead creative lawyers to file multiple suits, the Court responded: “The same-transaction rule developed in the law of preclusion holds out more prospect of giving a practical answer to that question than does any other approach we can envisage. It permits persons who have been victimized multiple times (and separately injured by each discriminatory episode) to recover more than persons who have suffered only once, which is as it should be; but it also recognizes that a single discriminatory ‘transaction’ may include many nasty events.”
Plaintiffs argue that because the EEOC brought two separate class lawsuits, one for harassment (Case No. 02 C 3768) and one for retaliation (Case No. 03 C 2293), the caps should apply per plaintiff and per lawsuit. The cases were combined only for purposes of judicial efficiency. The Seventh Circuit specifically acknowledged that plaintiffs might split their claims into separate suits to take advantage of more than one cap in Smith; it responded that so long as the second suit did not run afoul of claim preclusion considerations, a single plaintiff could take advantage of two statutory caps in this manner. The two suits here arose out of different transactions, and thus, Plaintiffs have not run afoul of claim preclusion principles. As such, this Court will apply a per suit, per plaintiff cap.

b. Relevant Time Periods
The relevant time periods in a Title VII action are the time periods in which discriminatory conduct occurred. See 42 U.S.C. § 1981(b); Komorowski v. Townline MiniMart and Restaurant, 162 F.3d 962, 965 (7th Cir.1998). Plaintiffs suggest that the relevant years are 1994-1999 (Copello was harassed between 1994 and 1999), 1998-1999 (Copello was retaliatorily denied quotes in 1998 and terminated in 1999), 1998 (Kennedy was harassed and retaliatorily terminated in 1998), and 2004 until the present (Fritkin was retaliatorily sued in 2004 until the present). Defendants contend that the relevant time period for Fritkin is only 2004 because the suit was initiated in 2004, and that no retaliatory actions were taken thereafter. Although Defendants did not undertake any new retaliatory actions after 2004, their initial retaliatory action was ongoing. As such, this Court will consider 1994-1999, 1998-1999, 1998, and 2004 until the present as the relevant periods.
c. Number of Employees
*4 To determine the number of employees employed by a company for the purposes of the § 1981a caps, a court must determine the number of employees employed in each of twenty or more calendar weeks in the relevant period. 42 U.S.C. § 1981a(b)(3). Plaintiffs assert that Defendants employed more than 200, but fewer than 501 employees, in each of the relevant time periods, which places the applicable statutory caps at $200,000. 42 U.S.C. § 1981(b). Defendants assert that they employed fewer than 101 employees in 1999 (a $50,000 cap), slightly more than 101 employees in 1998 (a $100,000 cap), and less than 100 employees in 2004 (a $50,000 cap). Id. Plaintiffs' and Defendants' differing numbers are due to a dispute over which employees count: Plaintiffs assert that this Court should count (1) Custom employees, (2) CEG employees, and (3) Custom and CEG's leased employees, whereas Defendants argue that this Court should consider only Custom employees.
i. Custom Companies Employees
The parties agree that this Court should count the employees employed by Custom Companies. Custom Companies

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 5

employed 109 employees for a twenty-week period in 1998, 72 employees for a twenty-week period in 1999, and 91 employees for a twenty-week period between 2004 and 2006.
ii. CEG Employees
Defendants assert that this Court cannot consider employees of CEG when determining the caps because CEG is not a single employer with Custom under the test set forth in Papa v. Katy Industries, Inc., 166 F.3d 937 (7th Cir.1999). Papa considered whether a parent corporation's employees could be counted so that the aggregate number of employees for the plaintiff's employer and the parent corporation exceeded the minimum of fourteen required for recovery under Title VII. Id. The Seventh Circuit set out three specific situations in which a company may be considered a single employer with another: (1) where traditional “piercing the veil” conditions exist; (2) where an enterprise has split itself up for the express purpose of avoiding liability under the discrimination laws; or (3) where the second corporation has directed the complained of act, practice, or policy. Defendants assert that Plaintiffs cannot meet these tests, primarily because CEG is not Custom's parent corporation. Plaintiffs assert that the companies need not be in a parent-subsidiary relationship for Papa to apply, and that Custom and CEG meet the first and third Papa prongs.
While Papa clearly involved a parent-subsidiary relationship, the Seventh Circuit has applied its test to situations involving affiliated corporations. Worth v. Tyer, 276 F.3d 249, 259-260 (7th Cir.2001); see also, Shannon v. Hotel Employees and Restaurant Employees Intern' Union, 2003 WL 1338457 (N.D.Ill. Mar.18, 2003). In Worth, the plaintiff was employed by one corporation that was closely affiliated with four other corporations. Plaintiffs sought to aggregate the various corporations' employees, and the Seventh Circuit applied the Papa test to find that the corporations did not meet any of the prongs. Id. 276 F.3d at 259-260 (finding one affiliated corporation liable as a successor in interest). Clearly, the Papa test applies to this case, despite the fact that CEG is not Custom's parent corporation.
*5 Plaintiffs argue that it can meet the first and third situations identified in Papa. Because this Court finds that Plaintiff meets the third of the Papa requirements, it will

not consider the first. See Shannon, 2003 WL 1338457 at *5. Under this test, Plaintiffs must demonstrate that CEG directed the complained of act, policy, and procedure. Id. CEG employed all executives and management-level personnel and at Custom, including harassers Tom Kolzow (hereinafter, “Kolzow”) and Mike Maher (hereinafter, “Maher”). Klonowski, who is responsible for Custom's compliance with Title VII, is a CEG employee. Mandera, who was involved in the decisions to retaliatorily terminate Copello and Kennedy and to sue Fritkin, is an employee of CEG. Thus, this Court finds that CEG is properly a single employer with Custom.
As such, this Court must determine the number of employees employed by CEG during 1994-1999, 1998-1999, 1998, and 2004 to the present. The EEOC's and PlaintiffIntervenors' proposed numbers do not agree; the EEOC claims that CEG employed 19 in 1998, 18 in 1999, and 22 from 2004 to 2006 whereas Plaintiff-Intervenors claim that CEG employed 23 at all relevant times. The disagreement appears to stem from reliance on different sourcesthe EEOC cites to CEG's payroll records whereas Plaintiff-Intervenors cite to Steve Laue's Rule 30(b)(6) testimony. This Court recognizes that the discrepancies will not affect the outcome and thus employs the lower of the figures. (See table below).
iii. Leased Employees
Lastly, Defendants assert that this Court should not consider leased employees when determining the cap amounts. Between 1995 and 2006, Defendants leased employees from a series of companies, including LeaseCo, Innovative Benefits Concepts (hereinafter, “IBC”), and Transportation Personnel Services, Inc. (hereinafter, “TPS”). These employees were not paid by Custom or CEG, but Plaintiffs assert that they should be counted because Defendants exercised sufficient control over them.
As an initial matter, Defendants argue that employees of LeaseCo, IBC, and TPS should not be counted because these entities were not mentioned in Copello's EEOC charge, the complaints, or the joint pre-trial order, and because Plaintiffs seek to raise a new theory of liability against these entities. Plaintiffs are not seeking to assert liability against these companies. Instead, Plaintiffs merely argue that these entities' employees were sufficiently controlled by Defendants that they should count

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 6

for the statutory caps. As such, these entities need not have been mentioned in the EEOC charge, complaints, or pre-trial order. Defendants' reliance on Parrish v. Solecito, 280 F.Supp.2d 145 (S.D.N.Y.2003), for the proposition that Plaintiffs attempt to aggregate the leased employees too late, is inappropriate. Parrish involved a Plaintiff who belatedly attempted to aggregate employees of several separate entities merely because these entities were owned by the same individual, there was some overlap between employees of the various entities, and the entities shared certain support services. Here, rather, Plaintiffs seek to aggregate employees who, for all intents and purposes, worked for Custom.
*6 Next, Defendants argue that LeaseCo, IBC, and TPS are not joint employers with Custom, the Seventh Circuit no longer espouses the joint employer theory, and, even if Plaintiffs successfully asserted a joint employer theory, the employees of the companies cannot be aggregated. Defendants correctly point out that the Seventh Circuit cases cited by Plaintiffs concern joint employer theories where the plaintiff, usually a temporary employee, is officially employed by one employer, the temporary agency, and seeks to sue the employer where she was placed by the agency (the placement employer, not the temporary agency, engaged in discrimination). See, e.g., Piano v. Ameritech/SBC, 2003 WL 260337 (N.D.Ill. Feb.5, 2003); Kerr v. WGN Continental Broadcasting Co., 229 F.Supp.2d 880, 885-86 (N.D.Ill.2002). Plaintiffs here seek a joint employer theory not in order to sue the discriminator, but in order to arrive at a more accurate count of the employees who worked for the discriminator. Although the validity of a joint employer theory is in doubt, the Seventh Circuit has not held that aggregation is improper. See Piano, 2003 WL 260337; U.S. E.E.O.C. v. Foster Wheeler Const., Inc., 1999 WL 515524 (N.D.Ill. July 14, 1999).
Several other jurisdictions have allowed aggregation of the kind sought here (or suggested that it would be allowed in the proper circumstances). Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976 (10th Cir.2002) (considering whether temporary workers were sufficiently controlled as to be aggregated); Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1361 (11th Cir.1994) (hotel and contractor were properly considered joint employers and that aggregation of employees was appropriate); Burdett v. Abrasive Engineering & Technology, Inc.,

989 F.Supp. 1107 (D.Kan.1997) (plaintiff could aggregate employees of staffing agency, as long as those employees were staffed with the employer and employer exercised sufficient control over the employees); Stone v. Indiana Postal & Federal Employees Credit Union, 2005 WL 2347226 at *2-4 (N.D.Ind. Sept.25, 2005) (plaintiff attempts to aggregate committee members based on argument that they are like temporary employees, but fails because committee members are not employees at all); Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193 (N .Y.2005) (suggesting that a plaintiff may aggregate employees of a joint employer, but only if the “loaned” employees are jointly employed; plaintiff did not make this showing); EEOC Compliance Manual § 2-III(B)(1)(a)(iii)(b) (giving example where plaintiff sues corporation with thirteen regular employees and five temporary employees; corporation is covered by Title VII because it has eighteen employees).
This Court believes that aggregation of sufficiently controlled temporary or leased employees is the correct conclusion. Not permitting a plaintiff to aggregate sufficiently controlled temporary or leased workers would work an injustice. It would artificially deflate an employer's number of employees, thereby artificially limiting a Title VII plaintiff's recovery under the statutory caps, and in some cases, entirely precluding recovery under Title VII. If the caps exist to protect small employers from excessive liability, they necessarily equate number of employees with an employer's size and ability to pay. Whether an employer employs workers via its own payroll, or hires these employees through an employment agency or other joint employer, it seems that these workers should count in an assessment of the employer's size and ability to pay (assuming, of course, sufficient control has been exercised by the employer over these workers). After all, courts will look to “the conventional master-servant relationship as understood by common law agency doctrine” to determine who is an employee under Title VII because the definition of “employee” is unhelpful and circular. See Brown v. City of North Chicago, 2006 WL 1840802 at *5 (N.D.Ill. June 28, 2006) (considering whether plaintiff is employee or independent contractor). Allowing an employer to avoid increased liability simply by employing workers through a third party would distort the application of the caps.
*7 That is not to say, however, that any or all temporary

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 7

or leased employees should be aggregated. Instead, only those workers over whom the employer has a certain amount of control should be counted. See Piano, 2003 WL 260337; Burdett, 989 F.Supp. 1107. In Piano, where a temporary employee sought to sue his placement employer, the court used a five-part test to determine if the placement employer was a joint employer with the temporary agency. Piano, 2003 WL 260337 at *5 (importing the test from the independent contractor/employee context). Thus, this Court will consider the following five factors: “(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the work place; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations.” Id. The first factor is the most important. Id.
LeaseCo and IBC employees were sufficiently controlled by Custom to have their employees aggregated. LeaseCo and IBC provided dispatch, dock operations, drivers, and mechanics to Custom (but primarily drivers and dock operations workers). Custom maintained control of these workers; they interviewed employees before they were placed with Custom and provided all equipment with which they worked. Custom, furthermore, supervised the employees' supervisor and provided personnel files, performance reviews, discipline, and made these employees eligible for employee of the month rewards. These employees received a Custom handbook and Custom ran their training. Although the employees were paid by LeaseCo and IBC, the employees were eligible for Custom health benefits and Custom approved salary changes. The employees worked in Custom facilities and drove trucks provided by Custom. Additionally, Terry Klonowski arranged for some LeaseCo employees to remain with Custom through IBC.
Defendants argue that LeaseCo and IBC are separate companies and provide the same services now provided to Custom by CDN Logistics. This Court has held that CDN Logistics is not a single employer with Custom and therefore granted summary judgment in its favor. LeaseCo and IBC do not “play the same role” as Defendants claim; CDN Logistics now employs TPS to fill the role previ-

ously played by LeaseCo and IBC. LeaseCo and IBC are separate companies; they have their own phone and fax numbers, have separate business facilities from Custom, maintain their own financial and business records, and share no bank loans or credit lines with Custom. Essentially, Defendant argues that LeaseCo and IBC should be characterized as vendors, rather than joint employers (or temporary agencies), and that their employees therefore should not be aggregated. These arguments do not change the facts laid out above or that Custom asserted sufficient control over LeaseCo and IBC employees such that these employees should be aggregated. Instead, these arguments go to what Plaintiffs freely admit: that LeaseCo and IBC are separate and distinct companies from Custom.
*8 The number of employees employed by LeaseCo and IBC and controlled by Custom appears to be in dispute between the parties. Plaintiffs suggest that the number was 100 at all relevant times, drawn from a statement made during Klonowski's deposition. Defendants contest this number in their sur reply (but not in their response) but offer no suggestion as to the proper number. Prior to very recently, Defendants had steadfastly refused to turn over records from which the proper number could be extrapolated, arguing that the leased employees could not be aggregated and that the records were irrelevant. This Court believes that Defendants had an obligation to do more than merely assert that Plaintiffs got it wrong. As such, this Court will deem the number to be 100.
This Court, however, does not believe that Custom had sufficient control over TPS employees such that they may be aggregated. The facts regarding TPS' relationship with CDN Logistics and Custom are somewhat sketchier than those regarding IBC's and LeaseCo's, and many of the facts important for the control test are not clear. Additionally, TPS is on a different footing with Custom because TPS employees work directly for CDN Logistics and/or Custom Global Logistics, not Custom. TPS employees received Custom employee handbooks. After IBC stopped providing employees, many of these same employees remained under TPS because either CDN Logistics or Klonowski arranged for their transition. Before TPS placed employees with CGN Logistics and/or Custom Global Logistics, they were interviewed, but it is unclear which entity interviewed them. There has been no information regarding TPS employees' eligibility for health benefits or employee of the month awards put before this

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)
Court. Furthermore, there is no information regarding approval of salary changes, discipline, or the maintaining of personnel files for these workers. The leased TPS employees are relevant only to the cap in Fritkin's retaliation claim; even if they are not aggregated, the jury's punitive award does not exceed the statutory cap. As such, the status of the TPS employees is irrelevant.
iv. Number of Employees and Applicable Statutory Caps
Based on the foregoing, the number of employees in the relevant years of 1998, 1999, and 2004 to the present are:

Page 8

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Copello Retaliation (1998-99)
Copello Sex Harassment (1994-1999 )
Kennedy Retaliation (1998)
Kennedy Sex Harassment (1998)
Fritkin Retaliation (2004-2006 )

Custom CEG 109 19 109 19
109 19 109 19
91 22

Leased 100

Total 228

100

228

100

228

100

228

None

113

Cap $ 200,000 $ 200,000
$ 200,000 $ 200,000
$ 100,000

Page 9

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 10

See § 1981a.
2. Compensatory Damages
Compensatory and punitive damages together must comply with the § 1981a caps. The Seventh Circuit suggests that the preferred method for reducing awards is to leave compensatory damages intact and lower punitive damages as necessary to bring the total under the cap (rather than reducing the compensatory damages or reducing both pro rata). See Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir.2004). This Court need not reduce the compensatory damages awarded by the jury, as each award is less than the applicable § 1981a statutory caps.
*9 Defendants assert that compensatory damages should be reduced to nominal compensatory damages. Specifically, Defendants argue that compensatory damages of only $1.00 are appropriate because the Plaintiffs offered only their own self-serving testimony that they had been emotionally troubled by events at Custom, and this testimony did not reach the requisite level of detail.
A court must give substantial deference to a jury's calculation of compensatory damages, but must also “ensure that the award is supported by competent evidence.” Farfaras v. Citizens Bank & Trust Co. of Chicago, 2005 WL 670523 at *4 (N.D.Ill. Mar.21, 2005). When reviewing a compensatory award, a court makes three inquiries: “whether the award is ‘monstrously excessive’; whether there is no rational connection between the award and the evidence ...; and whether the award is roughly comparable to awards made in similar cases.” Id.
After reviewing the record, this Court concludes that the compensatory awards are not “monstrously excessive” and are rationally related to the evidence presented. There was evidence that Copello and Kennedy were subjected to repeated sexually explicit comments and jokes as well as (in Kennedy's case) inappropriate touching by Custom and CEG employees. This behavior did not stop, despite complaints. There was also evidence that Copello and Kennedy were fired shortly after either making complaints or having a complaint made for them, and that Mandera threatened Copello that she would not work again in the industry. Additionally, both Copello and

Kennedy testified to the emotional harm she suffered as a result of Defendants' actions.
Furthermore, this Court notes that the jury's awards appear internally consistent: more was understandably awarded to Copello than to Kennedy, as Copello was subjected to the Custom environment longer. While courts do not normally consider internal consistency in determining if a compensatory award is monstrously excessive, this Court believes that the internal consistency is further proof that the award was not the “product of the jury's fevered imaginings or personal vendetta.” See, U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1285 (7th Cir.1995).
Title VII plaintiffs are not required to present medical evidence of emotional injury. Farfaras v. Citizens Bank and Trust of Chicago, 433 F.3d 558 (7th Cir.2006) at 566. If, however, the plaintiff provides the sole evidence of mental distress, he must reasonably and sufficiently explain the circumstances of his injury, and not merely make conclusory statements. Biggs v. Village of Dupo, 892 F.2d 1298, 1304 (7th Cir.1990). The Seventh Circuit does not require that claims of emotional injury be supported by corroborating testimony. Niebur v. Town of Cicero, 212 F.Supp.2d 790, 822 (N.D.Ill.2002). Additionally, because “emotional damages are difficult to describe, it will often suffice to describe their causes, and appeal to the jury's understanding of what it would be like to have to endure such abuse.” Id. Defendants argue that Copello's and Kennedy's testimony was insufficiently detailed to support the jury's award. In Biggs, and in Nekolny v. Painter, 653 F.2d 1164, 1172-73 (7th Cir.1981), the Seventh Circuit reversed a jury's compensatory damages award because the plaintiff merely made “a single statement” that he was “depressed” or “a little despondent.” Biggs, 892 F.2d at 1305. Despite the fact that Plaintiffs did not present testimony from a medical expert or corroborating testimony, their testimony was sufficient to support the jury awards. Both Copello and Kennedy testified to emotional harm in greater detail than was the case in Biggs or Nekolny and to sufficient abuse and retaliation from which the jury could infer what it would be like to suffer such abuse (as Neibur suggests). Copello testified that she did not enjoy hearing sexually explicit conversations in sales meetings and felt ashamed

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 11

when hearing them; that she was humiliated, afraid, embarrassed, and felt like “two cents” by the ongoing betting that she would sleep with George Wiszowaty (hereinafter, “Wiszowaty”); that she felt ashamed and embarrassed when forced to go to the Crazy House (a place of adult entertainment); that she felt “pretty worthless” and was shocked and embarrassed at golf outings that included strippers; that she felt horrified when looking at pictures from these golf outings; that she felt terrified after Kennedy was fired; that she felt nervous and uncomfortable having to listen to Wiszowaty while sitting in her cubicle; etc. Kennedy testified that she felt that she didn't know what she was getting herself into when Kolzow referred to women as “bitches and cunts”; she was absolutely ill when going to work knowing she would have to see Maher; that she was upset and could not concentrate after Maher grabbed her on the Rockford sales call; that she did not want to go into work, but did not quit because she needed the job; that she was terrified and very scared, that she was thoroughly embarrassed when she observed Wiszowaty fondling his girlfriend's breasts at the United Center; that she felt shattered when fired and told to leave within 15 minutes; etc. The jury was able to observe both women while they testified and apparently found their testimony to be sincere and sufficient to convince them that they merited the amounts awarded. See Tullis v. Townley Engineering and Mfg. Co., Inc., 243 F.3d 1058, 1068 (7th Cir.2001).
*10 The awards in this case are roughly comparable to awards in other Title VII cases. See, Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 484 (7th Cir.2003) (upholding $75,000 award for retaliatory discharge); Tullis, 243 F.3d at 1068 (upholding $80,000 award for retaliatory discharge); Neal v. Honeywell, Inc., 191 F.3d 827 (7th Cir.1999) ($200,000 for emotional damages); Farfaras, 2005 WL 670523 (upholding $200,000 award for sexual harassment). As this Court stated in Farfaras, “[t]his is not a case of an isolated comment or action. Plaintiff testified that Defendants, who each held positions of power ... harassed her on repeated occasions.” 2005 WL 670523 at *4. Thus, this Court will not reduce the compensatory damages awards.
3. Punitive Damages
a. Appropriateness

As an initial matter, Defendants argue (but only in their reply brief) that Plaintiffs have not made the requisite showing for punitive damages to have been awarded. Punitive damages may be awarded in Title VII cases where the plaintiff demonstrates that his employer engaged in a discriminatory practice “with malice or reckless indifference to the [plaintiff's] federally protected rights.” Kolstad v. American Dental Ass'n., 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Kolstad established a three-part framework for determining whether punitive awards were appropriate: the plaintiff must establish that (1) the employer acted with knowledge that its actions may have violated federal law and (2) the employees who discriminated against him are managerial agents acting within the scope of their employment; and the employer can avoid liability for punitive damages if it can show (3) that it engaged in good faith efforts to implement an anti-discrimination policy. Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir.2001). This Court believes that the evidence was sufficient to enable a reasonable jury to determine that Custom was recklessly indifferent to the Plaintiffs' federally protected rights.
b. Copello and Kennedy
This Court must reduce the punitive damages awarded by the jury to fit within the § 1981a caps. As the Court has upheld the compensatory damages, the following reductions in the punitive damages must be made to comply with the caps:

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Copello Kennedy

Jury Award Cap Compliant Award
(harassmen $ 1,000,000 $ 100,000 t)
(retaliation) $ 300,000 $ 140,000
(harassmen $ 500,000 $ 150,000 t)
(retaliation) $ 150,000 $ 150,000

Page 12

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 13

Now, the court must determine whether the remaining punitive damage awards are excessive. See Lust, 383 F.3d at 589-590 (7th Cir.2004) (first reducing punitive damages to comply with cap and then considering whether they are excessive).
One of the purposes of punitive damages in the employment discrimination context is to “dissuade defendants who are unaffected by compensatory damages from the misapprehension that they are beyond the reach of civil penalties.” Farfaras, 433 F.3d at 567. To determine whether a punitive damage award is excessive, a court considers the following three guideposts: “(1) the degree of reprehensibility of defendant's conduct; (2) the disparity between the harm suffered by the plaintiff and his punitive damages award; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases.” Kapelanski v. Johnson, 390 F.3d 525, 534 (7th Cir.2004) (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). A punitive damages award must not “exceed what is necessary to serve the objectives of deterrence and punishment.” AIC Security, 55 F.3d at 1287.
*11 Defendants' actions were reprehensible. There was evidence of repeated touching (in Kennedy's case), sexually explicit comments and jokes, sexual advances, and a sexually-charged atmosphere. There was also evidence that Kennedy was fired immediately after Copello complained to Klonowski about her treatment and that Defendants extensively monitored, took accounts away from, and eventually fired Copello after she complained. The harassment came from employees in positions of power over Copello and Kennedy. See Farfaras, 2005 WL 670523 at *5; BMW, 517 U.S. at 576-77.
There is, however, some disparity between the harm suffered by the plaintiff and the punitive awards. After applying the caps, the awards are not internally consistent: Kennedy receives greater punitive awards than Copello (while the reverse is true of the jury's original awards), even though Copello endured the Custom environment for four years and received greater compensatory damages. However, this Court believes that such distortion will necessarily occur where the caps are applied to awards that

exceed the cap amounts. As the Seventh Circuit has stated, “[r]eflecting our general deference to jury verdicts, we have never required the district court to adjust a jury's punitive damages verdict so that it is proportional, in the court's view, to the defendant's wickedness.” Lampley, 340 F.3d at486 (citing Caudle v. Bristow Optical Co. Inc., 224 F.3d 1014, 1028 (9th Cir.2000)).
A court will “not normally” disturb an award of damages at or under the statutory cap, “as this decision is largely within the province of the jury.” Fine v. Ryan Intern. Airlines, 305 F.3d 746 (7th Cir.2002). As such, the statutory maximum permitted by the caps is not reserved for only the most egregious cases. Lampley, 340 F.3d at 486. The evidence in this case supported a finding that Defendants engaged in prolonged sexual harassment (both verbal and physical) and then retaliated against Copello and Kennedy when they dared to complain. It is also possible that the jury found large punitive damages awards necessary to ensure that Defendants “sat up and took notice.” Id. at 486.
Additionally, these awards are comparable to awards made in other cases. See id. at 486 (upholding $270,000 punitive damage award); and AIC Sec. Investigations, 55 F.3d 1276 ($150,000 punitive award upheld). The punitive damages (once reduced by the caps) range from $100,000 to $165,000. Thus, this Court will not disturb the jury's punitive awards.
c. Fritkin
Defendants also argue that Fritkin's punitive damage award was excessive. Fritkin's award need not be reduced in order to comply with the statutory cap, as it was initially only $100,000. As noted above, a court will “not normally” disturb an award of damages at or under the statutory cap, “as this decision is largely within the province of the jury.” Fine, 305 F.3d 746. Defendants' conduct was reprehensible; evidence was presented at trial that Defendants ignored Fritkin's alleged obligation until after Fritkin filed suit. A $100,000 award is in proportion to the harm the jury believed Fritkin suffered (the attorney's fees). A $100,000 award also is comparable to other sexual harassment cases. See Lampley, 340 F.3d at 486 (upholding $270,000 punitive damage award); AIC

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 14

Sec. Investigations, 55 F.3d 1276 ($150,000 punitive award upheld). Thus, this Court upholds the jury's punitive award.
C. Fritkin's Attorney Fees Award
*12 Defendants also seek a reduction of the jury award of $60,000 for Fritkin's attorney's fees incurred in the state action. A court may disturb a jury's damage award where there is no rational connection between the award and the evidence. See Trytko v. Hubbell, Inc., 28 F.3d 715, 727 (7th Cir.1994). At trial, Fritkin's attorney testified that he had accumulated $32,000 of fees in defending the state court suit. The jury, however, awarded Fritkin $60,000 for attorney's fees. There appears to this Court no rational connection between the award and the evidence, and thus, the award is hereby reduced to $32,000.
D. Back Pay and Front Pay
1. Back Pay
Under Section 706(g) of Title VII, back pay relief is an important part of Title VII's objective to deter unlawful employment practices. Albermarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Under Albermarle, back pay should be denied “only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making the person whole for injuries suffered through past discrimination.” Id. at 418.
Back pay is calculated by “measuring the difference between actual earnings for the period and those which she would have earned absent the discrimination by the defendant.” Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d 599, 606 (7th Cir.1985). Back pay awards include all fringe benefits. Hathaway v. New Dimension Center for Cosmetic Surgery, 2006 U.S. Dist. LEXIS 6789 (N.D.Ill.2002). This process is speculative, and therefore, the calculation need not be precise; exactness is not expected. Horn, 755 F.2d at 606-08. “Ambiguities in what an employee ... would have earned but for the discrimination should be resolved against the discriminating employer.” Steward v. General Motors Corp., 542 F.2d 445, 452 (7th Cir.1976).
Liability for back pay begins at the time that the harass-

ment causes economic injury, but may not accrue from a date more than two years prior to the filing of a charge with the Commission. When the plaintiff obtains comparable or higher paying employment, back pay terminates. Smith v. America Service Co. of Atlanta, Inc., 796 F.2d 1430 (11th Cir.1986).
In addition to their arguments regarding Copello and Kennedy's specific situations, Defendants argue that Copello and Kennedy failed to provide information regarding unemployment benefits and that their back pay awards, if any, should be reduced by any unemployment they received. It is within this Court's discretion to offset unemployment awards. See E.E.O.C. v. O'Grady, 857 F.2d 383, 390 (7th Cir.1988); Doherty v. Crow, 2001 WL 722090 (S.D.Ind. Apr.20, 2001). Deducting the unemployment benefits Plaintiff-Intervenors received from the amount of back pay owed to them by Defendants “provide[s] [Defendants] with a windfall in exchange for its discriminatory actions.” Hathaway v. New Dimension Center for Cosmetic Surgery, 2006 WL 1594060 (N.D.Ill., 2006) at *3. Not deducting the benefits, conversely, confers a windfall on plaintiffs. See Doherty, 2001 WL 722090. As the Doherty court reasoned, “because the employee is the victim of unlawful discrimination, he or she is ‘the logical choice’ “ to receive the windfall. Id. at *16; see also Hathaway, 2006 WL 1594060 at *3. Thus, neither award will be offset by unemployment benefits.
*13 Defendants also argue that in the time since they left Custom, both Copello and Kennedy have had children, and that to the extent that they were or would have been on maternity leave or other disability they should not be able to recover from Defendants. Defendants suggest that this Court reduce any award made to both Plaintiff-Intervenors by the equivalent of 12 weeks unpaid leave for these children. When determining the proper award of back pay, a court must take care not to put the plaintiff in a better position than she was before termination. Hathaway, 2006 WL 1594060 at *2. Plaintiff-Intervenors have not provided any information suggesting that they would not have taken twelve weeks of leave or that they had vacation time accumulated such that some of that time would have been paid. See id. However, Copello's submissions regarding unreimbursed medical expenses for a miscarriage on June 19, 2000 preclude the possibility that she would have needed maternity leave during her Febru-

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 15

ary 1, 2000 to June 31, 2000 back pay period. As such, this Court will deduct from Kennedy's back pay award the equivalent of twelve weeks of pay: $12,692.31 (based on a salary of $55,000 per year).
a. Copello
Copello requests back pay damages in the amount of $39,126.00, broken down as follows: (1) $3,000 in lost car allowance ($500 monthly between February 1, 2000 and July 30, 2000); (2) $1,957 in lost 401(k) contributions(between February 1, 2000 and November 17, 2006); (3) $256 in lost profit-sharing contributions (between February 1, 2000 and November 17, 2006); (4) $7,072 in lost pay due to the $5,000 reduction in her salary (between September 12, 1999 and January 31, 2000); (5) $18,066 in lost pay between February 1, 2000 and July 31, 2000; and (6) $8,775 in unreimbursed medical expenses incurred between February 1, 2000 and July 31, 2000. (This request reflects a revised request submitted by Plaintiff-Intervenors after this Court requested additional information regarding unemployment, 401(k) contributions, and severance pay). This request accounts for Copello's severance package and the fact that Copello earned more money in another job as of August 1, 2000. Defendants apparently do not object to the $3,000 in lost car allowance, the $7,072 in lost pay due to the $5,000 reduction in Copello's salary, or basing Copello's back pay award on her $45,000 salary. The lost car allowance constitutes a fringe benefit properly included in the back pay award. This Court believes that there was ample evidence at trial that the $5,000 salary reduction was retaliatory in motive; therefore, Copello should be repaid this amount for the time she was still employed by Custom and her back pay award should be calculated based on this amount. Additionally, Defendants do not object to the $18,066 figure in lost pay, and this Court believes that this is the proper amount.
Copello also requests a total of $2,213 in lost 401(k) contributions (calculated based on Custom's matching contribution for the period ending January 19, 2000) and lost profit sharing (calculated based on Custom's contribution for the period ending January 19, 2000) between February 1, 2000 and November 17, 2006. (This figures vary dramatically from Copello's initial request for lost 401(k) contributions-approximately $22,000 over the same time period.) Copello's subsequent employment did not

provide 401(k) contributions. Thus, this Court grants Copello's request for $1,638 in 401(k) contributions. This Court, however, denies Copello's request for $256 in lost profit sharing, as Copello fails to provide any indication of whether she received profit-sharing benefits in her subsequent employment.
*14 In a supplemental request for back pay, Copello seeks an additional $8,775 in unreimbursed medical expenses incurred between February 1, 2000 and July 31, 2000. Health insurance benefits are fringe benefits properly included in a back pay award. Hathaway, 2006 U.S. Dist. LEXIS 6789. In order to recover for lost insurance coverage, a plaintiff must show that she either incurred expenses in securing alternative insurance coverage or incurred medical expenses that would have been covered under the employer's insurance program. Kossman v. Calumet County, 800 F.2d 697, 703-04 (7th Cir.1986); see also Kolovitz v. Brokers Title Ins. Co., 2004 WL 1199775 at *4 (N.D.Ill. June 1, 2004) (test requires that plaintiff demonstrate both that she was unable to secure alternative coverage and incurred a medical expense). Copello has not even addressed whether she secured, attempted to secure, or attempted and failed to secure medical coverage on her own. Although Copello apparently incurred medical expenses that she paid out of pocket, she merely asserts in her brief that these would have been covered under the Custom insurance plan. Copello has made no attempt to substantiate that they would be covered by the insurance plan (even by asserting thus in her affidavit) and only now belatedly seeks reimbursement for these costs in response to the Court's request for further information regarding her unemployment, 401(k) plan, and severance package. This Court, in its discretion, denies her request for medical expenses.
Thus, this Court awards Copello $30,095.00 in back pay.
b. Kennedy
i. Mitigation of Damages
A harmed party has a duty to mitigate damages by using reasonable and diligent efforts to secure other employment. 42 U.S.C. § 2000e-5(g); Doe v. Oberweis Dairy, 456 F.3d 704, 714 (7th Cir.2006). Defendants have asserted an affirmative defense that Kennedy failed to mitigate her damages; therefore, Defendants bear the burden of

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 16

persuasion to establish that Kennedy (1) lacked diligence in mitigating her damages and (2) with reasonable diligence, there was a reasonable chance that Kennedy might have found a comparable job. U.S. E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir.1990). PlaintiffIntervenors admit that Kennedy was not seeking a job between 2002 and 2004, and request no back pay for this period.
Defendants argue that Kennedy lacked diligence in mitigating her damages. They assert that Kennedy was voluntarily a housewife from 1999 to 2003, that she could not recall any place she interviewed between 1999-2002, that she has no documents or notes reflecting any interviews for that time period, and that her trial testimony does not reference sending out resumes, signing up with a headhunter, or registering for unemployment. Defendants also point out that Kennedy claimed to be working with a headhunter named Mark Fischer at her deposition, but could not provide any details about him. However, Kennedy testified at trial that she looked through newspapers, talked to friends and family, and looked on the Internet in order to find a job. Kennedy's deposition provided more thorough testimony regarding her search, and included testimony that she had posted her resume online, sent out resumes online, and had interviews in 1999 and 2001. Additionally, Defendants offered the transcript of a voice mail message with Kennedy's voice at trial, in which Kennedy asked Mandera for a job.
*15 The cases cited by Defendants either do not stand for the propositions asserted or do not necessitate that this Court find that Kennedy failed to undertake a reasonably diligent search for an equivalent job. Unlike the plaintiffs in Chisholm v. Foothill Capital Corp., 3 F.Supp.2d 925 (N.D.Ill.1998), Meyer v. United Air Lines, Inc., 950 F.Supp. 874, 876 (N.D.Ill.1997), and Williams v. Imperial Eastman Acquisition Corp., 994 F.Supp. 926, 931-32 (N.D.Ill.1998), Kennedy did not engage in an activity inconsistent with looking for full-time work. Instead, she looked on the Internet, in newspapers, and talked to family and friends. See Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th Cir.1986) (“a diligent Title VII plaintiff ... would at least check the want ads, register with employment agencies, and discuss job opportunities with friends and acquaintances”). Defendants make much of Kennedy's lack of success in finding a job, arguing that her failure to find a job indicates that she was not reason-

ably diligent in seeking one. Defendants also argue that Mandera's threat to Copello that she would never work in the industry again is not relevant to a consideration of Kennedy's diligence. To this Court, however, it appears to be relevant and to excuse, to at least some extent, Kennedy's lack of success. Mandera's threat shows that he is willing, and perceives himself to be able, to blackball a person opposing him. See Wheeler, 794 F.2d 1228. While this Court agrees with Defendants that Kennedy could have been more diligent in seeking work, she was reasonably so.
Defendants have also failed to meet their burden of persuasion regarding the availability of a comparable job. Defendants assert that this Court should adopt a presumption of availability where the plaintiff did little to no job searching. However, this Court has already determined that Kennedy's job search, excluding the period between 2002 and 2004, was reasonably diligent. Otherwise, Defendants offer no evidence whatsoever that comparable jobs existed, except to point out that Copello obtained one and that Chicago is a large job market. Such evidence is insufficient.
ii. Kennedy's Later Discovered Bad Acts
Defendants argue that Kennedy should not be awarded back pay because she lied on her employment application. If an employer discovers evidence of a plaintiff's misconduct during litigation, it may limit damages to the period before the discovery, if the employer can show (by a preponderance of the evidence) that the misconduct would have resulted in termination had the employer learned of it during employment. Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir.1999). Kennedy admitted at trial that she lied on her job application by claiming to have six, rather than three, years of air freight experience. Defendants, however, do nothing more than assert that Kennedy would have been fired had it discovered this falsehood, as “Custom's application made clear that misrepresentation such as those made by Kennedy would have been cause for termination.” In order to carry their burden, Defendants must do more than merely reiterate their policy. See Sheehan, 173 F.3d at 1048 (“the inquiry focuses on the employer's actual employment practices, not just the standards established in its employee manuals, and reflects a recognition that employers often say they will discharge employees for certain misconduct while in practice

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)
they do not”). Defendants have shown merely that a decision to fire Kennedy based on this falsehood would have been justified, but not that they would have made it. See id.
iii. Kennedy's Back Pay Calculation
*16 Kennedy seeks a total of $296,143.00 in back pay, as follows:

Page 17

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

10/20/1998 1/1/2004-1

-

1/17/2006

12/31/2001

Lost Salary $

$

174,166.54 151,239.00

Commis- $ 79,166.54 $ 68,739.00 sion Loss

Car Allow- $ 26,000.00 $ 23,100.00 ance

Phone and $ 1,518.10 $ 1,316.00 Pager

401(k)

$ 13,177.00 $ 10,587.00

Unpaid Salary

$ 2,115.38 (last two weeks of work)

Page 18

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 19

Having already found that Kennedy is entitled to back pay and denied Defendants' two defenses, this Court grants Kennedy the lost salary and unpaid car allowance (as a fringe benefit). See Section regarding Copello above.
Defendants argue that Kennedy's sought commission loss is unduly speculative and should therefore be denied. Kennedy seeks a $25,000 commission per year. Kennedy's contract shows that she was to be paid at a rate of $55,000 per year, and that she was eligible for a monthly commission, dependent upon her performance. While with Custom, Kennedy made no sales, generated no revenue, and therefore, received no commission. While Kennedy correctly asserts that exactness in back pay awards is neither expected nor required, and that “ambiguities ... should be resolved against the employer,” Steward, 542 F.2d at 452; see also, Horn, 755 F.2d at 606, she appears to have drawn this $25,000 figure out of whole cloth. Based on the commission program outlined in her contract (or rather this Court's best interpretation of that program, as it is not clear), Kennedy was eligible for a maximum of $1,937.50 in commission monthly, or $23,250 per year (assuming she sold $250,000 of LTL and Air Freight combined monthly and $160,000 TL and Local Cartage combined monthly). Although this Court is uncomfortable giving Defendants a windfall, any commission award would be unduly speculative. Kennedy provides no information as to sales figures of other Custom salesmen or even her own sales at her prior employment. See Ungar v. Consoli Foods Corp., 657 F.2d 909, 918-19 (7th Cir.1981) (vacated on other grounds) (plaintiff provided court with her successor's sales record and her own previous record); see also Felts v. Radio Distributing Co., 637 F.Supp. 234, 236 (N.D.Ind.1985) (court must look to plaintiff's prior sales record to determine commission). Although this Court must resolve any ambiguity in Kennedy's favor, any estimate of a commission figure based on the information provided by Kennedy would be unduly speculative, especially given the “highly speculative and personal nature of sales.” See id. As such, this Court will award Kennedy no commission.
As with the commission, this Court believes that a 401(k) contribution award would be unduly speculative. Kennedy indicates in her affidavit that she was eligible

for 401(k) contributions up to 7% of her salary; this Court assumes that she means that Custom had agreed to match her contributions up to that amount. Kennedy has provided no evidence that she made any contributions to a 401(k) while employed at Custom, or that she had done so in her previous position. See Inks v. Healthcare Distributors of Indiana, Inc., 901 F.Supp. 1403 (N.D.Ind.1995); see Webber v. International Paper Co., 307 F.Supp.2d 119, 128 n. 6 (D.Me.2004) (court refused to award 401(k) contributions as back pay because plaintiff was not contributing to 401(k) account at time of termination). As such, this Court will not order 401(k) contributions as back pay.
*17 This Court also will not award Kennedy back pay for the loss of the Nextel phone and pager. The phone and pager were for business use and were not fringe benefits. As such, such amounts are not recoverable as back pay.
Lastly, this Court will not award Kennedy $2,115.38 in unpaid salary. Kennedy provides no evidence that this amount was not paid (except for a letter requesting those amounts), and Custom has provided its payroll records, indicating that it was, in fact, paid.
This Court awards Kennedy $205,073.23 ($217,755.54 in lost pay and car allowance less $12,682.31 in maternity leave).
2. Front Pay
Title VII permits a court to “order such affirmative action as may be appropriate, which may include ... reinstatement or hiring of employees ... or any other equitable relief as the court deems appropriate. 42 U.S.C. § 2000e-5(g)(1). Front pay is “a monetary award equal to the gain [the plaintiff] would have obtained if reinstated” and is designed to monetize the value of the lost opportunity to be reinstated. Williams v. Pharmacia, Inc. ., 137 F.3d 944 (7th Cir.1998); Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir.1993). Front pay is measured by the difference between what the plaintiff would have earned in the future had they been reinstated at the time of trial and what they would have earned in the future in their next best employment, and is calculated in a manner similar to back pay. Avita v. Metropolitan Club of Chica-

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 20

go, Inc., 49 F.3d 1219, 1231 (7th Cir.1995); Wattleton v. International Brotherhood of Boiler Makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 1509, 686 F.2d 586 (7th Cir.1982). Front pay is “not intended to assure a plaintiff's future financial success” and should extend only to the date upon which “the sting” of discriminatory conduct has ended. McKnight v. General Motors Corp., 973 F.2d 1366, 1371-72 (7th Cir.1992). Thus, when calculating front pay, a court should terminate its inquiry at the point at which the plaintiff “can reasonably be expected to have moved on to similar or superior employment.” Williams, 137 F.3d at 954. A decision to award front pay is within the discretion of the district court. McNeil v. Economics Laboratory, Inc., 800 F.2d 111 (7th Cir.1986) at 118.
a. Reinstatement
Because front pay is available only as an alternative remedy to reinstatement, this Court must consider whether reinstatement is appropriate in this case. “The equitable remedy of reinstatement requires the court to strike a delicate balance.” Bruso, 239 F.3d 848, 861. While reinstatement is the “preferred remedy for victims of discrimination,” and should be awarded when feasible, a court need not reinstate a plaintiff where the result would be “a working relationship fraught with hostility and friction.” Id. Where the working relationship would be fraught with hostility, reinstatement could “potentially cause the court to become embroiled in each and every employment dispute that arose between the plaintiff and the employer.” Id. at 861-62. A court must not, however, base its decision not to order reinstatement on the employer's anger or hostility toward the plaintiff merely for having filed the suit. Id. at 862. Thus, a court must identify the source of the friction-a straightforward task when there was no evidence of friction before the plaintiff filed suit. Id. However, reinstatement is “particularly infeasible” if the plaintiff would no longer enjoy the confidence and respect of his superiors once reinstated. Id. Reinstatement is also problematic when the plaintiff would be supervised by the same individuals who discriminated against him in the first place. Id. Plaintiff-Intervenors argue that reinstatement would be inappropriate in this case because the relationship between Defendants and Plaintiff-Intervenors is fraught with hostility. Defendants, however, argue that there is no hostility, and that Plaintiff-Intervenors should be reinstated.

*18 Reinstatement is infeasible. There is copious evidence in the record that hostility between Custom and Plaintiff-Intervenors began before they had filed suit. Before Copello sued, she was subjected to consistent sexual banter, prying questions of a sexual nature, and events featuring scantily-clad adult entertainers. When Copello complained of sexual harassment on Kennedy's behalf, Kennedy was fired. Defendants took accounts away from Copello because she refused to entertain “in the Custom way” and refused to give her timely quotes for her customers after she complained about Defendants' sexual questions. Before Kennedy sued, she was fired the day after Copello complained of sexual harassment on her behalf. Kennedy was subjected to the same sexually-charged environment as Copello. Many of the employees who harassed Plaintiff-Intervenors or who allowed the harassment to continue are still employed by Defendants; in fact, Wiszowaty has since been promoted to Sales Manager and would therefore have direct authority over the Plaintiff-Intervenors were they to be reinstated. After the Plaintiff-Intervenors brought suit, Mandera threatened that they would never work in the industry again; Defendants refused to rehire Copello when she asked for a job in 2000. Additionally, Defendants testified at trial that neither woman's performance on the job was satisfactory. Although the jury found the Plaintiff-Intervenors' testimony to be more credible, the Defendants' testimony indicates that the Plaintiff-Intervenors would not have the respect and confidence of the Defendants if they were reinstated.
b. Copello
Copello seeks $1,740 in front pay, representing six years of lost 401(k) contributions by Custom. (Copello initially sought a front pay award of $18,900, which she claimed accounted for lost 401(k) contributions over six years. When Copello corrected her 401(k) contribution back pay claim in response to this Court's request for more information, she failed to correct her front pay claim. This Court assumes that the resulting inconsistency was an oversight, and assumes that she means to claim front pay in the amount of $1,740 based on Custom's $290 contribution in 2000 for six years.) Copello contends that she receives no 401(k) contributions from her current employer. As an initial matter, lost 401(k) contributions are recoverable as front pay. See Mattenson v. Baxter Healthcare Corp., 2004 WL 1244016 (N.D.Ill. June 4, 2004). Copello's peri-

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 21

od extends well beyond the point where the “sting” of discrimination had ceased-the point where she was in fact making more money in a different, but comparable job. While this job does not provide 401(k) benefits, her increased salary arguably makes up for this loss. The parties agree that Copello made more money in a new job as early as 2001. Additionally, this Court notes that Copello has already been compensated for the loss of her 401(k) contributions, as she was awarded such losses in her back pay award. As such, this Court, in its discretion, denies Copello front pay.
c. Kennedy
*19 Kennedy seeks a front pay award of $320,000, or the equivalent of four years at a salary of $80,000. Defendants contend that Kennedy should receive no front pay because she failed to search for a job. Although this Court held that Kennedy was reasonably diligent in her job search for purposes of the back pay determination, this Court is reluctant to also award Kennedy front pay for four years where she has conducted only the barest minimum search as required to recover. It concerns this Court greatly that Kennedy still has been unable to find a job; Kennedy does not appear to be unemployable and Copello was able to find a job despite Mandera's threats. Kennedy, furthermore, has already been compensated for the loss of her job at Custom. See, Bennett v. Smith, 2001 WL 717490 at *2 (N.D.Ill. June 26, 2001) (denying front pay in court's discretion in part because the back pay award fully compensated plaintiff). As such, this Court denies Kennedy front pay in its discretion.
III. INJUNCTIVE RELIEF
The EEOC and Plaintiff-Intervenors request various forms of injunctive relief. Defendants, predictably, argue that injunctive relief is not warranted.
A. Injunctive Relief is Warranted
Title VII specifically provides for injunctive relief 42 U.S.C. § 2000e-5 (g)(1). Such relief is authorized “once the court has found that the defendant intentionally engaged in an unlawful employment practice.” E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir.1996). A prevailing plaintiff need not make a special showing to obtain injunctive relief, and specifically need not demonstrate that the employer engages in a pattern or

practice of discrimination. Bruso, 239 F.3d 848, 864. Instead, the proper inquiry is whether the defendant's “discriminatory conduct could possibly persist in the future.” Id. This Court believes that injunctive relief is appropriate here. Copello and Kennedy persuaded the jury that they were the victims of sexual harassment and retaliatory termination. Fritkin persuaded the jury that she was likewise a victim of retaliation. Additionally, circumstances indicate that Defendants might engage in sexual harassment in the future. The sexual harassment was carried out by several individuals still employed by Defendants, including Wiszowaty and Kolzow. Mandera, Klonowski, and Boyle, all still in upper management positions, failed to stop the harassment. The President and owner of the company, Mandera, was even involved in the retaliation. The mere fact that Defendants have, and at all times had, written policies addressing sex harassment and retaliation does not demonstrate that injunctive relief is inappropriate, as these policies have been ignored. See Bruso, 239 F.3d at 864 (“if United's upper echelon of management felt free to ignore United's policies in the past, there is no reason to believe that those same members of management will abide by them in the future”). Lastly, Defendants have not accepted responsibility for the violations that occurred, but have bitterly contested every issue in this suit.
B. Specific Injunctive Relief Ordered
*20 Plaintiffs request various injunctive relief measures to prevent future sexual harassment and retaliation. This Court grants the bulk of these measures by enjoining Defendants for a period of four years: (1) from violating Title VII with respect to sexual harassment and retaliation; (2) to post a notice informing its employees of the verdict and injunction in this suit and of the employees' right to contact the EEOC without fear of retaliation; (3) to provide the EEOC notice (including a description of the complaint, the investigation conducted, and the result) of any complaint of sexual harassment or retaliation within thirty days from the date the complaint was made; (4) to provide a report to the EEOC every six months detailing all complaints made and listing all individuals terminated by Defendants; (5) to provide written confirmation to every employee that any complaint of harassment or retaliation received by any manager will be taken seriously and investigated; (6) to require each of Defendants' officers, managers, supervisors, and employees to attend a

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 22

Title VII training seminar on sex harassment, Title VII principles, and retaliation on a yearly basis (sponsored by a group unrelated to any of the law firms that have represented the Defendants); (7) from threatening and participating directly or indirectly in precluding Plaintiff-Intervenors from obtaining work in the freight industry; (8) to expunge from the Plaintiff=Intervenors' personnel files all references to this lawsuit or the investigations of any complaints or charges of sexual harassment or retaliation; and (9) to provide a notice to all Defendants' customers advising them of the jury verdict, the Court's judgment, and reaffirming the Defendants' commitment to equal employment opportunity in the workplace. The Court believes that by granting these injunctions, the Defendants will be prevented from continuing to violate Title VII.
Additional relief not granted includes enjoining the Defendants to (1) submit periodic monitoring reports to the Plaintiff-Intervenors; and (2) reimburse Plaintiff-Intervenors and their attorneys for their fees and costs associated with monitoring the Defendants' reports and compliance with this Court's injunction. The Court believes that this relief will not measurably contribute to preventing the Defendants from engaging in further Title VII violations, especially considering that the EEOC will already be closely monitoring the situation.
1. Adult Entertainment and the Crazy Horse
Plaintiffs request that this Court grant an injunction preventing Defendants from (1) sponsoring any company event at a place of adult entertainment or which includes adult entertainers; (2) providing for or reimbursing customer entertainment at adult entertainment establishments; and requiring (3) that the Defendants distribute to their customers a notice advising them that Defendants will no longer provide adult entertainment for clients. Plaintiffs argue that this injunction is necessary to prevent Defendants from retaliating against sales personnel who refuse to entertain clients at such establishments. This Court believes that enjoining Defendants from entertaining clients at places of adult entertainment is too broad. Instead, this Court enjoins Defendants from sponsoring company events at a place of adult entertainment. Defendants are further enjoined from reimbursing sales personnel for costs incurred while entertaining clients at adult entertainment establishments which are owned or operated by Defendants and Defendants' owners, officers, and direct-

ors. This measure is intended to decrease the current financial incentive for entertaining clients at the Crazy Horse. The Court does not grant an injunction requiring Defendants to inform clients that they will no longer provide entertainment at adult entertainment establishments.
2. The State Court Lawsuit
*21 Lastly, the EEOC seeks an injunction requiring Custom to withdraw its retaliatory lawsuit against Fritkin. The EEOC argues that such an injunction is necessary to prevent further retaliation against Fritkin, and that the jury found that the suit was retaliatory. This Court has already upheld the jury's verdict and refused to grant judgment as a matter of law as to Fritkin's retaliation claim.
Defendants, however, argue that such an injunction would run afoul of the Anti-Injunction Act, 28 U.S.C. § 2283. The Act provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court, except as expressly authorized by an Act of Congress or where necessary in and of its jurisdiction or to protect or effectuate its judgments.” There is, however, an exemption where the “plaintiff in the federal court is the United States itself, or a federal agency asserting ‘superior federal interest.’ “ See, Levi Strauss, 515 F.Supp. at 642 (citing Mitchum v. Foster, 407 U.S. 225, 235-236, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1971)). As such, the Act does not bar the injunction sought by the EEOC as “the interests represented by the Commission are, in effect, defeated if a retaliatory state court ... action is allowed to proceed.” See id. at 642-43. Even if this exception did not apply, this Court agrees with Levi Strauss that an exception to the reach of the Act, analogous to that articulated in Mitchum would apply. See id. at 642-43.
Defendants argue, however, that Levi Strauss is inapposite because the state court suit does not allege defamation and is not otherwise related to Fritkin's allegations of sexual harassment. While Defendants are correct that the Levi Strauss suit alleged defamation based on the very allegations made by the plaintiff in the Title VII action, this difference is unimportant. Regardless of the nature of the state court suit against Fritkin, the jury determined that it was retaliatory in purpose and thus, an injunction is necessary to prevent further retaliation in the form of finally obtaining a state court judgment against Fritkin. The cases

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

Slip Copy Slip Copy, 2007 WL 734395 (N.D.Ill.) (Cite as: Slip Copy)

Page 23

Defendants cite in favor of caution in enjoining the state court action are inapposite. This Court, furthermore, is being cautious; it merely believes that injunctive relief is warranted in this case.
IV. DEFENDANT'S MOTION FOR ATTORNEY'S FEES
Without reaching the merits of the motion, this Court strikes Defendant's Motion for Attorney's Fees as a Prevailing Party. Although a prevailing defendant may be awarded attorneys' fees (upon a finding that the plaintiff's action was “frivolous, unreasonable, or without foundation”), Local Rule 54.3 sets for a procedure for a fee motion seeking “any award of attorneys' fees.” That Rule provides that a motion for attorney's fees must be filed within 90 days after entry of judgment or settlement; judgment has not yet been entered in this case. Additionally, before a motion for fees may be filed, the movant must provide the opposing party with information regarding hourly rates and time sheets reflecting the fees to be requested, the parties must confer and attempt to agree on an amount of fees to be awarded, and the parties must file a joint statement outlining any remaining disputes. Local Rule 54.3. Defendants have made no attempt to comply with the procedure set out by Local Rule 54.3, and thus, its motion for attorney's fees as a prevailing party is stricken as premature.
*22 Defendants' motion in opposition to attorneys' fees being granted to Plaintiff-Intervenors is likewise premature. Plaintiff-Intervenors have, as of yet, filed no motion for attorneys' fees; if (or when) they do, Defendant may raise its objections to such an award when it confers with Plaintiff-Intervenors and in the subsequent joint statement.
V. CONCLUSION
For the reasons stated herein, the following motions are granted:
1. Plaintiffs' Motion for a Finding that Defendants Employed Two Hundred Employees (in part);
2. Defendants' Motion Concerning the Number of Defendants' Employees (in part);
3. Plaintiff-Intervenors' Motion for Back and Front Pay

(in part);
4. EEOC's Motion for Injunctive Relief (in part);
5. Plaintiff-Intervenors' Motion for Injunctive Relief (in part); and
6. Defendants' Motion to Reduce Fritkin's Attorney's Fees Award.
The following motions are denied:
1. Defendants' Motion for Directed Verdict in Favor of CEG;
2. Defendants' Motion to Reduce Compensatory Damages to Nominal Damages;
3. Defendants' Motion to Reduce Punitive Damages as Excessive;
4. Defendants' Motion to Deny Back and Front Pay;
5. Defendants' Motion Against Granting an Injunction;
6. Defendants' Motion for Attorney's Fees; and
7. Defendants' Motion Against Awarding Fees to Plaintiff-Intervenors.
The Court enters Judgment against Defendants Custom Companies Inc. and Custom Executive Group in the amount of $1,135,168.23, broken down as specified above.
IT IS SO ORDERED.
N.D.Ill.,2007. U.S. E.E.O.C. v. Custom Companies, Inc. Slip Copy, 2007 WL 734395 (N.D.Ill.)
END OF DOCUMENT

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

 </s> Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 1 of 19

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

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

and

CATHERINE COPELLO and ALLISON KENNEDY,

Case Nos. 02 C 3768 03 C 2293

Plaintiffs-Intervenors,

Hon. Harry D. Leinenweber

v.

CUSTOM COMPANIES, INC., CUSTOM EXECUTIVE GROUP, INC. and CDN LOGISTICS,

Defendants.

MEMORANDUM OPINION AND ORDER The Equal Employment Opportunity Commission (hereinafter, the “EEOC”) and Plaintiff-Interveners Catherine Copello (hereinafter, “Copello”) and Allison Kennedy (hereinafter, “Kennedy”) (collectively, the “Plaintiff-Interveners”) filed suit against Defendants Custom Companies Inc. (hereinafter, “Custom”) and Custom Executive Group (hereinafter, “CEG”) (collectively, the “Defendants”) alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000 et seq. A jury found for the Plaintiffs on all but one count (Kimberly Fritkin’s sexual harassment claim).

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 2 of 19

The jury awarded the following damages to Plaintiff-

Intervenors:

Catherine Copello

Compensatory (harassment) $100,000 (retaliation) $60,000

Punitive $1,000,000 $300,000

Allison Kennedy

(harassment) $50,000 (retaliation) $35,000

$500,000 $150,000

This Court has already decided several post-trial motions, the

briefing of which appeared to have consumed small forests. Now

before the Court is Defendants’ Motion for Reconsideration,

Remittitur, and to Alter and Amend Judgment and Plaintiff-

Intervenors’ Motion for Pre- and Post-Judgment Interest.

I. DEFENDANTS’ MOTION TO RECONSIDER

Defendants argue that this Court has committed manifest errors

of law and fact which must be corrected pursuant to Federal Rules

of Civil Procedure 59(e), 52(b), and 60.

A. Standard

Rule 59(e) and 52(b) give a court the power to reconsider and

“rectify its own mistakes in the period immediately following the

entry of judgment,” thereby avoiding appeal. White v. New

Hampshire Dept. of Employment Sec., 455 U.S. 445, 450 (1982). A

court may grant a Rule 52(b) or 59(e) motion to alter or amend the

judgment if the movant presents newly discovered evidence that was

not available at the time of trial or points to evidence in the

record that clearly establishes a manifest error of law or fact.”

Sunrise Opportunities, Inc. v. Regier, 2006 WL 581150 at *4 (N.D.

- 2 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 3 of 19
Ill. Mar. 7, 2006). Neither motion may be used to advance arguments that could and should have been made before the court rendered a judgment nor to present evidence that was available earlier. LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263 (7th Cir. 1995); see also, Anderson v. Flexel, Inc., 47 F.3d 243, 247-48 (7th Cir. 1994); King v. Cooke, 26 F.3d 720, 726 (7th Cir. 1994). It is within the district court’s discretion to grant a Rule 59(e) motion. LB Credit, 49 F.3d at 1267.
Under Rule 60(b), a Court may modify an injunction when the principles of equity require it to do so. V&V Food Products, Inc. v. Cacique Cheese Co., Inc., 2003 WL 255235 (N.D. Ill. Feb. 4, 2003).
B. Defendants’ Motion Generally In general, Defendants’ motion restates arguments that this Court has duly considered on at least one occasion (sometimes several). Although the Court considered these arguments, it will not again articulate its reasoning. Except as addressed below, this Court finds that Defendants have identified no newly discovered evidence or manifest error of law or fact. This Court believes that it is important to note that Defendants object that this Court has unfairly penalized Defendants for vigorously defending this case while at the same time being too quick to conclude that Defendants’ silence on particular issues has waived certain arguments. It is true that this Court has
- 3 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 4 of 19
considered the fact that this case was contested “bitterly” by Defendants and held that Defendants have waived some arguments by failing to raise them at the proper times. This is not improper. This does not place Defendants in a Catch-22; it is possible to make and preserve all arguments without “bitterly contesting” a case (especially when this Court has been more than generous in permitting both parties to file oversized and additional briefs).
C. Compensatory and Punitive Damages 1. Application of Statutory Caps
In its previous ruling, this Court awarded Copello and Kennedy $400,000 in damages, the equivalent of two $200,000 § 1981a statutory caps. The basis for this holding was dicta in Smith v. Chicago School Reform Bd. of Trustees, 165 F.3d 1142 (7th Cir. 1999), which this Court interpreted to permit a plaintiff to benefit from two statutory caps if she brought two separate (and not claim-precluded) lawsuits alleging different discrimination and different injuries. This Court has now become aware that although the EEOC did indeed file two separate cases, Copello and Kennedy are party only to the ‘02 case. Copello and Kennedy brought two discrimination claims within the context of a single Title VII suit and are therefore entitled to only one statutory cap apiece. See Smith, 165 F.3d 1142 (plaintiff who brought three racial discrimination counts in the context of one suit was entitled to only one statutory cap). This Court will not reconsider its
- 4 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 5 of 19

decision regarding the applicable caps (based on the number of

employees) as Defendants has brought forth no new information or

argument on the subject. As such, Plaintiff-Intervenors are each

entitled to one $200,000 statutory cap.

2. Compensatory and Punitive Damages

Compensatory and punitive damages must comply with the § 1981a

caps. The Seventh Circuit suggests that the preferred method for

reducing awards is to leave compensatory damages intact and lower

punitive damages to bring the total under the cap. See Lust v.

Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004). This Court need

not reduce the compensatory damages, as each award is less than the

applicable § 1981a statutory caps. However, punitive damages

awards must be reduced:

Copello (Harassment) (Retaliation) (Total)

Compensatory
$100,000 $ 60,000 $160,000

Punitive
$25,000 $15,000 $40,000

Cap $200,000

Kennedy (Harassment) (Retaliation) (Total)

$50,000 $35,000 $85,000

$ 67,647 $ 47,353 $115,000

$200,000

(The Court has allocated the punitive damages proportionately

between each Plaintiff-Intervenor’s two claims, based on the jury-

awarded compensatory damages.)

The Court evaluated the originally granted compensatory and

punitive damage awards for excessiveness and deemed them to be

rationally related to the evidence presented. As such, this Court

- 5 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 6 of 19
will not revisit this inquiry when awarding identical compensatory damages and smaller punitive damages.
D. Back Pay 1. Kennedy - Proof of Comparable Jobs Defendants argue that this Court erred in concluding that Kennedy sufficiently mitigated her damages by using reasonable and diligent efforts to secure other employment. The affirmative defense of failure to mitigate requires that the Defendants prove that (1) Kennedy lacked diligence in mitigating her damages and (2) that with reasonable diligence, there was a reasonable chance that Kennedy might have found a comparable job. U.S. E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir. 1990). This Court concluded that Kennedy was reasonably diligent in seeking a job, and this Court will not revisit that decision. As such, Defendants cannot satisfy the two-prong failure to mitigate test. As noted in the earlier opinion, this Court cannot presume the availability of jobs after having found that Kennedy’s job search was reasonably diligent. However, Defendants have pointed out that this Court incorrectly stated that “Defendants offer no evidence whatsoever that comparable jobs existed.” Defendants provided this court with copies of 1998 and 1999 Chicago Tribune want ads. These ads were unaccompanied by any affidavit or argument. No attempt was made to identify the relevant ads. The copies included ads for a “regional sales manager,” “seamstress,” “national field service
- 6 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 7 of 19
manager,” “house parents,” and “word processing.” There were also relevant sales positions advertised. Considering the sheer volume of the briefing and exhibits before the Court, some direction would have been helpful.
2. Copello - Base Salary Defendants argue that this Court erred by basing Copello’s back pay calculations on a $45,000 salary. This Court awarded Copello $18,066.00 in lost pay, which reflects the six-month period between February 1, 2000 and July 31, 2000. This value is based on the following formula: 1/2 Copello’s 1999 salary of $36,362.33 less Copello’s interim earnings of $2,760. Because this Court did not base its lost pay calculation on a base salary of $45,000, the Court’s reference to “basing Copello’s back pay award on her $45,000 salary” was in error. Defendants did not object to the calculation method used by Copello and thus may not do so now. Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (Rule 59(e) “does not allow a party to . . . advance arguments that could . . . have been presented to the district court prior to the judgment”). Additionally, Defendants now argue that Copello’s lost pay award ought to have been calculated with reference to a base salary of $30,000. This argument was likewise not previously articulated, and cannot therefore be raised now. Id. Defendants point to Copello’s 1999 W-2 as proof of a base salary of $30,000 when it
- 7 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 8 of 19
shows that Copello earned $36,362.33 in 1998, and fail to articulate from whence the $30,000 value comes. As such, this Court will not disturb the back pay award granted to Copello. After all, the back pay process is necessarily speculative, and calculations need not be precise. Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d 599, 606 (7th Cir. 1985). “Ambiguities in what an employee . . . would have earned but for the discrimination should be resolved against the discriminating employer.” Stewart v. General Motors Corp., 542 F.2d 445, 452 (7th Cir. 1976).
E. Injunctive Relief This Court ordered Defendants to give notice to their customers advising them of the jury verdict and the Court’s judgment and reaffirming Defendants’ commitment to equal employment opportunity in the workplace. Although Defendants did not question this potential provision during the briefing of the post trial motions, they now claim that it is unprecedented, unjustified, and punitive. Rules 52 and 59 are not an opportunity for a party to raise arguments that they have hitherto neglected to raise. Moro, 91 F.3d at 876. If Defendants believed that the potential injunction was inappropriate, they should have objected. While Defendants made general objections to the imposition of injunctive relief, they were not prohibited from objecting to the specific provisions in case injunctive relief was imposed. As such, this
- 8 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 9 of 19
Court will not revisit this injunction. Furthermore, this Court believes that Plaintiffs are correct that the injunction will serve as a deterrent and is relevant as Defendants have spent years dangling adult entertainment as a carrot before customers.
Defendants also argue, in a footnote, that the injunction regarding annual sexual harassment training is improper because it requires that the harassment training not be given by Defendants’ law firms. Again, Defendants did not object to this potential injunctive relief when briefing the post-trial motions and have thus waived this argument. Id. Additionally, arguments in footnotes are waived. Moriarty ex rel. Local Union No. 727, I.B.T. Pension Trust, and the Teamsters Local No. 727 Health and Welfare Trust v. Svec, 429 F.3d 710, 722 (7th Cir. 2005).
F. Fair Trial Lastly, Defendants argue that this Court should grant a new trial under Rule 59(b). A new trial should not be granted unless the jury verdict is against the manifest weight of the evidence or the trial involved clearly prejudicial error. Romero v. Cincinnati Inc., 171 F.3d 1091, 1096 (7th Cir. 1999). The claimed prejudice must impact a litigant’s substantial rights; the errors must have been sufficiently substantial to have amounted to the denial of a fair trial. Wilson v. Groaning, 25 F.3d 581, 584 (7th Cir. 1994); Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993). As is explained below, none of the purported errors are in fact error,
- 9 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 10 of 19
and even if they were, none amount to substantial error so as to require a new trial.
1. Failure to Sever Each Plaintiff’s Trial Defendants argue that this Court committed reversible error by refusing to sever each plaintiff’s trial. According to Defendants, trying the three cases together created an “echo-chamber effect” where the jury gave each plaintiff the benefit of the others’ testimony. Defendants’ motion to sever was properly denied. Federal policy favors joinder. United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966). Unlike the cases cited by Defendants, the Plaintiffs’ alleged sexual harassment and retaliation involved many of the same employee-wrongdoers and there was substantial overlap of both legal and factual issues. Furthermore, Defendants’ contention that an “echo-chamber effect” existed is belied by the jury’s finding that Fritkin did not suffer sexual harassment, as well as by the fact that jury instructions informed the jury that it must consider each plaintiff’s claims separately. O’Sullivan v. City of Chicago, 2007 WL 671040 at *8 (N.D. Ill. Mar. 1, 2007) (jury is presumed to abide by given instructions).
2. The EEOC Investigator Defendants argue that this Court committed reversible error by limiting Defendants’ right to call the EEOC investigator as a witness to impeachment purposes only. Although administrative
- 10 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 11 of 19
findings of discrimination are generally admissible, a court has “significant discretion” as to whether EEOC investigatory findings ought to be admitted. Halloway v. Milwaukee County, 180 F.3d 820, 827 n. 9 (7th Cir. 1999); Tulloss v. Near North Montessori School, Inc., 776 F.2d 150, 153 (7th Cir. 1985). In deciding to limit the Defendant’s ability to call the EEOC investigator as a witness, this Court considered the fact that the EEOC has no adjudicatory power, that statements made to the investigator were not under oath, and that evidence on matters investigated by the EEOC was available from other sources. Disallowing the EEOC investigator to testify except for the purposes of impeachment was not error.
3. Wilki and Anguiano’s Deposition Testimony Defendants argue that a new trial should be granted because the deposition testimony of two former Custom employees, Ms. Wilki and Mr. Anguiano, was read into the record. First, Defendants argue that the use of deposition testimony was improper because the EEOC claimed that they could not be served even though Ms. Wilki and Mr. Anguiano reside in Chicago. This argument was posed solely in a footnote and is therefore waived. Moriarty, 429 F.3d at 722. Second, Defendants argue that Ms. Wilki’s testimony was improperly admitted because it concerned her own complaints of sexual harassment rather than the harassment of Copello. This Court had ruled that the only evidence of harassment not in the presence of Copello, Kennedy, or Fritkin that was admissible was
- 11 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 12 of 19
harassment that had been reported to Defendants. Ms. Wilki’s testimony of her harassment and reports of harassment was thus relevant to Custom’s notice of harassment.
Lastly, Defendants argue that Mr. Anguiano’s testimony was improper for several reasons. Mr. Anguiano’s testimony was properly admitted because it involved sexual harassment committed in Copello’s presence. The fact that Mr. Anguiano was less than specific as to the content of certain jokes seems to this Court a matter of the proper weight to be given to testimony rather than a reason to exclude it. This Court finds that the testimony of Ms. Wilki and Mr. Anguiano was properly admitted.
4. Testimony Regarding Non-Sponsored Events Defendants also argue that this Court should not have admitted testimony regarding non-sponsored events. This Court carefully considered Defendants’ motions in limine on these points and denied them. District courts have broad discretion when ruling on motions in limine. Gage v. Metropolitan Water Reclamation Dist. of Greater Chi., 365 F.Supp. 2d 919, 926 (N.D. Ill. 2004). Wiszowaty’s indecent exposure was relevant to Defendants’ Ellerth defense and to the general atmosphere at Custom. Likewise, Mandera’s ownership interest in the Crazy Horse gentleman’s club was relevant, at minimum, because Defendants’ salespersons were encouraged to entertain at the Crazy Horse.
- 12 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 13 of 19
5. Defendants’ Human Resources Expert Defendants contend that this Court erred by excluding Defendants’ human resources expert’s testimony. A court has broad discretion regarding expert testimony. Olympia Exp., Inc. v. Linee Aeree Italiane S.P.A., 2007 WL 641557 (N.D. Ill. 2007). The expert in question offered legal conclusions based on Defendants’ version of the facts. Courts have properly excluded expert testimony where it offers legal conclusions. See, e.g., Good Shepard Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003). This Court instructed the jury as to the appropriate EEOC guidelines on harassment policies; the jury could evaluate Defendants’ compliance without expert testimony. In short, this Court does not believe that the jury would have been aided by the expert’s testimony, and therefore will not grant a new trial.
6. Jury Instructions In order for a Court to order a new trial on the basis of faulty jury instructions, it must find that the given instructions did not adequately state the law and that the error was prejudicial because the jury was likely to be confused and misled. Jackson v. Lake County, 2005 U.S. Dist. LEXIS 16697 (N.D. Ill. Aug. 11, 2005). This Court gave the Seventh Circuit’s Pattern Jury Instructions for use in Title VII cases, and included an instruction that simple teasings, offhand comments, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the
- 13 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 14 of 19
terms and conditions of employment. Defendants’ motion fails to explain how this Court erred by denying Defendants’ requested retaliation and undue delay instructions, but merely lists the instructions. As such, this Court will not address this issue.
7. Plaintiffs’ Closing Lastly, Defendants argue that the Court erred by allowing Plaintiffs’ Counsel to make falsehoods during closing arguments. It appears that Defendants have waived this argument by failing to make a timely objection during the closing argument. Even if they had, however, a new trial is not necessitated. “Improper comments during closing arguments rarely rise to the level of reversible error.” Littlefield v. McGuffey, 954 F.2d 1337, 1346 (7th Cir. 1992). Counsel for Plaintiff-Intervenors correctly stated that Ms. Wilke and Mr. Anguiano had “no interest in this litigation.” Ms. Wilke and Mr. Anguiano were not party to the suit at time of trial and thus stood to gain nothing from the jury’s verdict. If Defendants believed that this statement implied that Ms. Wilke and Mr. Anguiano were not biased, they could have pointed out their interpretation during their own closing arguments. PlaintiffIntervenors appear to admit that they mischaracterized the Wiszowaty incident as having happened at a company-sponsored event; however, this does not rise to the level of a prejudicial error.
- 14 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 15 of 19
II. PLAINTIFF-INTERVENOR’S MOTION FOR PRE- AND POST-JUDGMENT INTEREST
A. Pre-Judgment Interest Pre-judgment interest is a normal incident of relief in Title VII suits and is considered an “element of complete compensation.” Loeffler v. Frank, 486 U.S. 549, 557 (1988); U.S. E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815, 820 (7th Cir. 1990).
1. Is Pre-Judgment Interest Appropriate? Plaintiff-Intervenors request pre-judgment interest on their back pay awards. Defendants argue that pre-judgment interest is inappropriate where significant punitive damages are awarded. In Fortino v. Quasar Co., a Div. of Matsushita Elec. Corp. of America, 950 F.2d 389, 398 (7th Cir. 1991), an age discrimination case, the Seventh Circuit held that pre-judgment interest was inappropriate where the compensatory damages had already been doubled due to willful conduct. The Court based this decision on several rationales: (1) the Seventh Circuit (and other circuits) had held that “if double damages are awarded pre-judgment interest may not be awarded”; (2) these doubled damages were effectively punitive, and thus, the addition of pre-judgment interest on the total award “becomes an unauthorized form of punitive damages”; and (3) because significant “punitive” damages had already been awarded, there is no real danger that the judgment “inadvertently undercompensate[s] the plaintiff.” In Emmel v. Coca-Cola Bottling
- 15 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 16 of 19
Co. of Chicago, Inc., 904 F.Supp. 723, 736 (N.D. Ill. 1995), a district court declined to enter pre-judgment interest on a back pay award in a Title VII case, relying on Fortino.
There are significant distinctions between this case and Fortino. First, Fortino involved the mandatory doubling of compensatory damages according to statute; this case does not. Due to the statutory caps in this case, the punitive damages are significantly less than double the compensatory awards. Second, the Fortino plaintiff apparently sought pre-judgment interest on the entire judgment, whereas plaintiff-intervenors here seek prejudgment interest only in regards to their back pay awards. See Fine v. Ryan Intern. Airlines, 305 F.3d 746, 757 (7th Cir. 2002).
This Court is not persuaded by Fortino and Emmel. Title VII authorizes pre-judgment interest as part of a back pay remedy. Loeffler, 486 U.S. 549, 557 (1988); U.S. E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815, 820 (7th Cir. 1990). Courts have awarded prejudgment interest in cases involving significant punitive damages. See, e.g., Fine, 305 F.3d at 757; Hathaway v. New Dimension Center for Cosmetic Surgery, 2006 WL 1594060 at *5 (N.D. Ill. June 6, 2006). As the Hathaway court noted, “the Seventh Circuit has . . . stated . . . that ‘if a district court does have discretion in whether to grant or deny prejudgment interest, that discretion is very limited and . . . prejudgment interest should be presumptively available to victims of federal law violation.’”
- 16 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 17 of 19
Hathaway, 2006 WL 1594060 at *5. Although Emmel has made the leap of applying Fortino to Title VII cases, this Court will follow Hathaway and will not do so. Thus, this Court finds that prejudgment interest on Plaintiff-Intervenors’ back pay awards is proper.
Defendants also argue that a request for pre-judgment interest is premature at this time because Defendants have filed a motion to reconsider. A motion for pre-judgment interest became timely upon the Court entering a back pay award. This Court evaluated Defendants’ motion to reconsider; no alterations were made to Plaintiff-Intervenors’ back pay awards.
2. Amount of Pre-Judgment Interest Copello requests $16,489.60 in pre-judgment interest and Kennedy requests $72,024.82 in pre-judgment interest. Defendants have not challenged the methods used to calculate pre-judgment interest, and as nothing is apparently wrong with the calculations (compounding annually and using the prime rate of interest), this Court will award the requested amounts.
B. Post-Judgment Interest Plaintiff-Intervenors also request post-judgment interest. Post-judgment interest is allowed on any money judgment in a civil case. 28 U.S.C. § 1961(a). Defendants contend that a motion for post-judgment interest is premature because Defendants have filed a motion for reconsideration. This Court has granted in part
- 17 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 18 of 19
Defendants’ motion for reconsideration, and this request is therefore timely (assuming that the proper adjustments to the calculations are made). As this Court has corrected its error regarding the statutory caps, Plaintiff-Intervenors’ post-judgment interest calculations have been reworked according to the proper awards. Although neither party has addressed the date from which post-judgment interest ought to accrue in the event that this Court made any changes to the original judgment (which it did), the Court will calculate it from March 8, 2007, when the original entry of judgment occurred. See, generally, Black Grievance Committee v. Philadelphia Elec. Co., 690 F.Supp. 1393 (E.D.Pa. 1988) (where appellate court remanded to district court for recalculation of attorneys’ fees award, post-judgment interest properly accrued from date of original judgment); Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897 (3d Cir. 1985).
Interest pursuant to §1961(a) is calculated “at a rate equal to the weekly average one-year constant maturity Treasury yield for the calendar week preceding the date of the judgment, as published by the Board of Governors of the Federal Reserve System.” Chemetall GmbH v. ZR Energy, Inc., 2001 WL 1104604 at *21 (N.D. Ill. Sept. 18, 2001); 28 U.S.C. § 1961(a). The interest should be computed daily until the date of payment, and should be compounded annually. Id.
- 18 -

Case 1:03-cv-02293 Document 163 Filed 06/21/2007 Page 19 of 19
The weekly average one-year constant maturity Treasury yield for the calendar week ending March 2, 2007 was 4.96 percent. Accordingly, the daily rate of post-judgment interest on fees and expenses incurred before judgment amounts to 0.0496/365. Copello’s daily post-judgment interest is thus $246,584.60 *(0.0496/365), or $33.49. Kennedy’s daily post-judgment interest is $462,098.55 *(0.0496/365), or $62.79. As of June 20, 2007, 104 days have accrued. Thus, Copello has accrued $3,483.56 in post-judgment interest and Kennedy has accrued $6,526.31 in post-judgment interest (calculated based on the formula P(r/365*d), P being the principal, r being the interest rate, and d being the number of days). See Chemetall, 2001 WL 1104604 at *21 (noting that using the formula gives a slightly different answer than if the per diem rate were used to calculate the total interest).
III. CONCLUSION For the reasons stated herein, the Court Grants in Part and Denies in Part Defendants’ Motion for Reconsideration. The Court also Grants in Part and Denies in Part Plaintiff-Intervenors’ Motion for Pre- and Post-Judgment Interest. IT IS SO ORDERED.

Dated:

June 21, 2007

Harry D. Leinenweber, Judge United States District Court
- 19 -

 </s> Case 1:03-cv-02293 Document 189 Filed 01/03/2008 Page 1 of 1
CERTIFIED COpy

Wntttb statt1) (!Court of ~ppta(1)

For the Seventh Circuit Chicago. JIlinois 60604
Decemher 27,2007

F I LED /- 3-2(J)~ JAN 0 3 200~

Before

MICHAo;L. W. DOBBINS
CI,;ERK,. U.S. DISTRIct CQURT.

Han. DANIELA. MANION, Circuit Judge

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-~ppellee,
Cross-Appellant,

and

CATJlERINE COPELLO and ALLISON
KENNEDY, PIa i. nti ffs-AppelleesIntervenors l

Nos. 07-2740, 07-27~6 and

07-2965

v.

CUSTOM COMPANIES, INC. and CUSTOM EXECUTIVE GROUP, INC.,
Defendants-Appellants, Cross-Appellees.

J Appeals from the United
1 States District Court for

1 the Northern District of

1 Illinois, Eastern Division.

1

C 1 Nos. 02 C 3768

J

03 C 229Y

1

1 Harry P. Leinenweber,

1

Judge,

1

1

J

J
1 1

1 1 1

Upon consideration of the JOINT MOTION PURSUANT TO CIRCUIT RULE 57 TO REMAND FOR MODIFICATION OF JUDGMENT AND TO EXPEDITE ISSUANCE OF THE MANDATE, flIed on December 21,2007, hy counsel for the parties,

IT IS ORDERED that the motion is GRANTED. In light of the district

court's indication of its willingness to grant a motion pursuant to Fed. R. Civ. P.

60(b). this appeal is REMANDED to the district court for further proceedings. The

parties are reminded that a new notice of appeal must be filed by any party

dissatisfied with the judgment as modified. See Cir. R. 57. The m~ljtiiehi:t!ri>;,

appeal shall issue forthwith.
•

;'-1 -," '- )

~.-".:....';'
~, ... r~~rr

:

:

, •

. :

.

:

~

'-.
__

-~'':.'_"~,

.~~

,u... ""I'l'.!':::

~

hI'MIf, ;::: ' _."

~"'5: -

 </s> Case 1:03-cv-02293 Document 211 Filed 03/06/2008 Page 1 of 4

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

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION

)

)

Plaintiff,

)

)

And

)

)

CATHERINE COPELLO and

)

ALLlSlON KENNEDY,

)

)

Plain tifts-Intervenors,

)

)

v.

)

)

CUSTOM COMPANIES, INC., and CUSTOM )

EXECUTIVE GROUP, INC.

)

)

)

Defendants.

)

Hon. Harry D. Leinenweber

MODIFIED IN.TUCTION ORDER

This matter coming on to be heard on Intervenors' Motion for Relief from Judgment

Under Rule 1i0(b)(Ii), this matter being heard at a hearing on January 24, 200!!, and february 19,

2008, and the Court having granted Intervenors' Motion, the Court orders the following:

1.

The finding that Ms. Fritkin was an employee of Custom is vacated.

11. The award of monetary relief is vacated, and the following agreed monetary relief

is ordered:

Agreed Monetary Relief

\. Within seven days of the entry of the modified judgment, Custom will pay

$200,000 to Ms. CopelJo, and $200,000 to Ms. Kennedy, to settle their claims of sexual

harassment and retaliation. The above-referenced payments shall be made as follows;

1

..

......

Case 1:03-cv-02293 Document 211 Filed 03/06/2008 Page 2 of 4

(a) The withholding should be for the year 2008; (b) The Defendant should withhold for federal and state income taxes on the entire
settlement amount; (e) Kennedy's tax status should be "married;" (d) Kennedy and Copello should be allowed to claim all proper exemptions; and (e) fICA and Medicare deductions should be taken on an amount computed by multiplying
the total settlement by a fraction in which the numerator is the $200,000 less the amount awarded as punitive damages and the denominator is the total modified judgment of damages including compensatory and punitive. 2. Custom will pay to the law flnns of Barlow Kobata and Denis, and Michael Robbins and Associates, private counsel representing Ms. Copello and Ms. Kennedy, the total sum of $900,000 in settlement of their claim for attomey's fees and costs, with a payment of $450,000 to be made within seven days of entry of the modified judgment, and a second payment of S450,000 to be made on or before March 1,2008. 3. Within seven days of the entry of the modified judgment, Custom will pay $52,800 to Ms. Fritkin, to settle her claim of retaliation. TTL The injunction is vacated, and the following agreed modified injunction is
entered: Agreed Modified Injunction
Defendants are enjoined for a period of two years from March 8, 2007: (a) From violating Title VII with respect to sexual harassment and retaliation; (b) To post a notice informing its employees of the employees' right to contact
the EEOC without fear of retaliation;
2

'.

Case 1:03-cv-02293 Document 211 Filed 03/06/2008 Page 3 of 4

(c) To maintain and keep available for inspection and copying by the EEOC any complaints by employees of sexual harassment or retaliation and make such records available to the EEOC on a semi-annual basis within a reasonable time after the EEOC requests, and to provide to the EEOC, every six months, a written summary of any complaints by employees of sexual harassment or retaliation (including a brief description of the complaint, the investigation ~onducted, and the result); the EEOC will inform Custom of any concerns raised in connection with internal complaints of harassment or retaliation disclosed in the semi-annual reports;
(d) To provide written confirmation to every employee that any complaint of harassment or retaliation received by any luanager will be taken seriously and investigated;
(e) To require each of Defendants' officers, managers, supervisors and employees to attend a Title VII training seminar on sex harassment, Title VII principles, and retaliation on a yearly basis provided by the law firm of Laner, Muchin, Dombrow, Becker, Levin and Tominberg, Ltd., or by such other law firm mutually agreed upon between Defendants and the EEOC;
(f) From threatening and participating directly or indirectly in precluding Plaintiffs-Intervenors from obtaining work in the freight industry;
(g) To expunge from Plaintiff-Intervenors' personnel mes all references to this lawsuit or the investigation of any complaints or charges of sexual harassment or retaliation;
(h) From sponsoring company sponsored events at a place of adult entertainment;

3

.. , '

Case 1:03-cv-02293 Document 211 Filed 03/06/2008 Page 4 of 4

(i) From reimbursing sales personnel for costs incurred while entertaining clients at adult entertainment establishments which are owned or operated by Defendants and Defendants' owners, officers, and directors; and
(j) To dismiss with prejudice Custom's lawsuit against Ms. Fritkin, currently pending in the Circuit Coul1 of Cook County, Illinois, and designated Custom Companies v. Kim Fritkin, No. 04 Ml-121233.

SO ORDERED:
S)p¢/ DATED:

l:;U~~EFI(QW
United State~ District Judge

4

 </s> U.S. E.E.O.C. v. Custom Companies, Inc., Not Reported in F.Supp.2d (2006)
2006 WL 3087104 United States District Court, N.D. Illinois, Eastern Division. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
and Catherine COPELLO and Allison Kennedy, Plaintiffs-Intervenors,
v. CUSTOM COMPANIES, INC., Custom Executive Group, Inc. and CDN Logistics, Defendants.
No. 02 C 3768, 03 C 2293. | Oct. 26, 2006.
Opinion
MEMORANDUM OPINION AND ORDER
LEINENWEBER, J. *1 The Equal Employment Opportunity Commission (hereinafter, the “EEOC”) and Plaintiff-Interveners Catherine Copello and Allison Kennedy (hereinafter, the “Interveners”) (collectively, the “Plaintiffs”) filed suit against Defendants Custom Companies, Inc. (hereinafter, “Custom”), Custom Executive Group (hereinafter, “CEG”), and CDN Logistics (hereinafter, “CDNL”) (collectively, the “Defendants”) alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000 et seq. Together, the EEOC and the Interveners allege that Defendants subjected a class of women to a hostile environment of sexual harassment. The EEOC alleges that Defendants retaliated against Kimberly Fritkin and Corinne Miller in violation of Title VII. Individuals Catherine Copello and Allison Kennedy also allege retaliation and sex discrimination.
CDNL was added as a defendant by the EEOC in a second amended complaint because the EEOC alleges that it is the “same corporation” as Custom. CDNL moves for summary judgment on the basis that it is not the same corporation as Custom. For the reasons stated herein, CDNL’s Motion for Summary Judgment is granted.
I. BACKGROUND The extensive factual background of this case is set forth in this Court’s previous summary judgment opinion. The Court assumes the reader’s familiarity with the earlier decision and attempts to recite only those facts relevant to the current Motion for Summary Judgment, and those needed for context.
A. Procedural Background On May 28, 2002, the EEOC initiated the above-captioned case, No. 02 C 3768, on behalf of Copello and a class of former Custom employees. On April 2, 2003, the EEOC initiated the above-captioned case, No. 03 C 2293, on half of Corinne Miller and Kimberly Fritkin. On July 23, 2004, the EEOC filed its Second Amended Complaint in both of the above cases, removing Custom Distribution Network, Inc. as a defendant and adding CDNL. The EEOC gave two reasons for adding CDNL: (1) that CDNL and Custom are a “single employer” under Title VII; and that (2) CDNL was mistakenly named as Custom Distribution Network in the original complaint.
1

U.S. E.E.O.C. v. Custom Companies, Inc., Not Reported in F.Supp.2d (2006)
B. Factual Background
1. The Companies Custom is located at 317 West Lake St. in Northlake, Illinois. Perry Mandera (“Mandera”) is Custom’s sole shareholder and officer. Custom is a full-service transportation company that brokers freight to various outside shippers. It does not actually move freight. Through its vendors, it offers local cartage, airfreight, truckload and less than truckload transportation services.
CDNL is an Illinois corporation incorporated on May 15, 1998. CDNL is a transportation company licensed as a motor carrier by the Department of Transportation and engaged in the business of providing local and long distance transportation services to its customers. Robert Durkin (“Durkin”) is the sole director, president and secretary of CDNL. Durkin and Thomas Kolzow (“Kolzow”) are CDNL’s sole shareholders. Kolzow is also CDNL’s Chief Operating Officer.
*2 CDNL is also located at 317 West Lake St. in Northlake, Illinois. CDNL has its own office space and a separate entrance from Custom. Both companies lease their office space through The Center Point Properties. Both companies conduct separate, regular annual and interim meetings of their shareholders. The minutes are kept and maintained at the companies’ respective offices.
2. The Relationship between Custom and CDNL CDNL is one of Custom’s vendors. It provides local cartage and truckload services to Custom. The Custom sales representatives sell truckload services on behalf of Custom. The services are then brokered to various vendors, including CDNL. CDNL has additional customers aside from Custom. The percentage of Custom’s revenues generated from CDNL services is less than 25%. The percentage of CDNL revenues generated from providing services to Custom is less than 50%. In May 2001, CDNL took over local cartage, providing service for local freight traffic, services for Custom. Prior to May 2001, Custom did its local cartage business itself. Plaintiffs allege that CDNL employs the same individuals for its local cartage as Custom did.
Plaintiffs argue that Mandera provided all of the start up capital to Durkin in order to form CDNL. Further, Kolzow and Marc Inman, former Custom employees, were involved in the formation of CDNL.
3. Management of the Companies CDNL leases its driver and dock employees from Transportation Personnel Services. Prior to using Transportation Personnel Services, it leased its employees from Innovative Benefits Concepts. Transportation Personnel Services is responsible for payment and discipline of its employees, as well as performing human resources functions.
Custom employs Terry Klonowski as its Vice President of Human Resources. Custom pays its own employees, and offers its own benefits and 401(k) package.
II. ANALYSIS
A. Summary Judgment Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The court must view all the evidence and any reasonable inferences
2

U.S. E.E.O.C. v. Custom Companies, Inc., Not Reported in F.Supp.2d (2006)
therefrom in the light most favorable to the nonmoving party. See Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.2000).
B. Piercing the Corporate Veil
In Papa v. Katy Industries, 166 F.3d 937 (7th Cir.1999) the Seventh Circuit outlined the proper test for determining whether companies are sufficiently affiliated to warrant treating them as a single employer under Title VII. The Court noted that the purpose of the standard is to spare very small firms from the potentially crushing expense of mastering the intricacies of the anti-discrimination laws, establishing procedures to ensure compliance, and defending against suits when efforts at compliance fail. Id. at 940. The standard does not allow for treating any affiliated group as a single employer. Id. Although the Court established three situations in which the policy behind the exemption of a small employer is vitiated by the presence of an affiliated corporation, by agreement of the parties, only one exemption potentially applies in this case.
*3 A court will treat affiliated companies as one for purposes of the anti-discrimination laws where the conditions are present for “piercing the [corporate] veil,” traditionally used to allow a creditor to sue a parent or other affiliate and hold the affiliate liable for the employer’s debt. Id. at 940-41. If the affiliated companies neglect corporate formalities, hold out the parent as the real party with whom one is dealing, the parent may be held liable for torts created by the anti-discrimination laws. The basic principle is that the affiliate forfeits its limited liability only if it acts to forfeit it by failing to comply with statutory conditions of corporate status, or misleading creditors of an affiliate. Id. at 941.
A corporate entity will be disregarded and the veil of limited liability pierced when two requirements are met: (1) there must be such a unity of interest and ownership such that the separate personalities of each corporation no longer exist; and, (2) the circumstances must be such that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice.
In determining whether a corporation is so controlled by another to justify disregarding their separate identities, courts focus on four factors: (1) the failure to maintain adequate corporate records or to comply with corporate formalities; (2) the commingling of funds or assets; (3) undercapitalization; and (4) one corporation treating the assets of another corporation as its own. Jackowski v.. Seoco, Inc. Northern, No. 98 C. 50337, 2001 WL 709485 (N.D. Ill. June 22, 2001).
1. Corporate Formalities
Plaintiffs argue that Custom and CDNL failed to observe corporate formalities because Custom executives played a role in the formation of CDNL. Specifically, Plaintiffs allege that CDNL used an attorney that has appeared on behalf of Custom in this case. The attorney is also a part-owner with Durkin in an employment company that leases employees to CDNL. Further, Plaintiffs allege that when CDNL took over the local cartage business from Custom, it adopted Mandera’s work and leasing practices without engaging in competitive bidding. Finally, Plaintiffs point to a Custom e-mail listing Kolzow as an “Executive Board Member” and years later another email informing him of an Executive Board meeting.
Plaintiffs present no evidence that Custom and CDNL neglected corporate formalities or that adhering to the separateness of Custom and CDNL would work an injustice on Plaintiffs. LaBouve v. The Boeing Co., 387 F.Supp.2d 845, 853 (N.D.Ill.2005). Rather, CDNL presented uncontroverted evidence that it remained a separate and distinct legal entity from Custom. Custom and CDNL do not have common stockholders, officers or directors. Hystro Products, Inc. v. MNP Corp., 18 F.3d 1384, 1389 (N.D.Ill.1994) (“Stock control and the existence of common officers and directors are generally prerequisites to the piercing of the corporate veil although factors alone will not suffice.”). Although they may have employed the same outside attorney, that does not suffice to show neglect of corporate formalities. See Papa, 166 F.3d at 942.
2. Commingling of Funds or Assets and Undercapitalization
3

U.S. E.E.O.C. v. Custom Companies, Inc., Not Reported in F.Supp.2d (2006) *4 Plaintiffs argue that piercing the corporate veil is appropriate because Custom and CDNL have shared personnel and assets and Custom has provided working capital to CDNL. Plaintiffs point to statements in the financial statements discussing that Custom provided “management services and working capital” to CDNL. The management services relate to the non-enforcement of Custom’s non-competition agreements with employees that left to work for CDNL. Additionally, Plaintiffs allege that while Mark Inman was responsible for the truck operations at CDNL, he also received payments from CEG. The working capital consists of a loan made by Mandera to Durkin. Additionally, Custom assisted CDNL in entering a banking agreement to establish a $500,000 line of credit to operate its business. The line was secured by Custom, as a result of an agreement based on a time-lag concerning accounts receivables. Plaintiffs also allege that a common operation relationship is evidenced by Custom and CDNL’s shared use of personnel. Plaintiffs allege that Klonowski assisted CDNL with requesting job postings on internet sires and complying with workman’s compensation regulations. Plaintiffs’ allegations, taken as true, do not establish the commingling of assets and personnel or undercapitalization required to pierce the corporate veil. Papa, 166 F.3d at 943 (“The corporate veil is pierced, when it is pierced, not because the corporate group is integrated ... but (in the most common case) because it has neglected forms intended to protect creditors from being confused about whom they can look to for payments of their claims.”). The loan and line of credit constitute two business transactions between affiliated companies. Id. at 942 (holding that forms of contractual integration are not sufficient to pierce corporate veil). The companies maintain their own bank accounts, and are each responsible for the payment of their separate employees. See Hystro Products, Inc., 18 F.3d at 1389. Further, the alleged sharing of personnel consists of a few menial tasks and employees that left one company to work at another without enforcement of a non-competition agreement. As already stated, Custom has its own human resources department, made its own hiring decisions and created its own personnel policies separate from CDNL. See LaBouve, 387 F.Supp.2d at 852.
III. CONCLUSION As discussed above, the conditions for piercing the corporate veil do not exist in this case. Thus, CDNL’s Motion for Summary Judgment is granted.
IT IS SO ORDERED.
Parallel Citations 99 Fair Empl.Prac.Cas. (BNA) 519
4

 </s> Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 1 of 35
KEYS,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:02−cv−03768

US EEOC v. Custom Co Inc, et al Assigned to: Honorable Harry D. Leinenweber Demand: $0 Case in other court: 07−02740
07−02965 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 05/28/2002 Date Terminated: 03/08/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

U.S. Equal Employment Opportunity Commission

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

Beth A. Miller Pontikes & Associates 111 West Washington Street Suite 1221 Chicago, IL 60602 (312) 464−1440 Email: bmiller@pontikeslaw.com ATTORNEY TO BE NOTICED

Deborah Lois Hamilton Equal Employment Opportunity Commission 500 W. Madison Street 2000 Chicago, IL 60661 (312) 869−8110 Email: deborah.hamilton@eeoc.gov ATTORNEY TO BE NOTICED

John C. Hendrickson Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8099 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

Richard John Mrizek U.S. Equal Employment Opportunity Commission 500 W. Madison Suite 2000 Chicago, IL 60661 (312) 869−8117 Email: richard.mrizek@eeoc.gov ATTORNEY TO BE NOTICED

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 2 of 35

V. Defendant Custom Companies, Inc.

represented by Diane E. Gianos Walker Walker Morton LLP Two Prudential Plaza 180 North Stetson Avenue Suite 4700 Chicago, IL 60601 312−471−2901 Email: dgianos@gianoslaw.com TERMINATED: 07/23/2004 LEAD ATTORNEY
Keith L. Hunt Keith L. Hunt & Associates, P.C. Three First National Plaza Suite 2100 Chicago, IL 60602 (312) 558−1300 Email: khunt@huntassoclaw.com TERMINATED: 07/24/2002 LEAD ATTORNEY
Bennett L. Epstein Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610−4714 (312)832−4500 Email: bepstein@foley.com ATTORNEY TO BE NOTICED
Dana Elizabeth MacDonald Hunt & Associates, P.C. Three First National Plaza Suite 2100 Chicago, IL 60602 (312) 558−1300 TERMINATED: 07/24/2002
Daniel P Colling Foley & Lardner 150 West Jefferson Suite 1000 Detroit, MI 48226 (313)963−9517 TERMINATED: 07/23/2004
Eric M Phillips Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610−4714 (312)832−4500
James Daniel Dasso Foley & Lardner 321 North Clark Street Suite 2800 Chicago, IL 60654 (312)832−4500 Email: jdasso@foley.com ATTORNEY TO BE NOTICED

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 3 of 35

Defendant
Custom Distribution Network, Inc. TERMINATED: 07/23/2004

Jason Robert Bent Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610−4714 (312)832−4500 Email: jbent@smithandbent.com ATTORNEY TO BE NOTICED
Jeffrey S. Kopp Foley & Lardner 500 Woodward Avenue Suite 2700 Detroit, MI 48226 313−234−7100 Email: jkopp@foley.com TERMINATED: 03/16/2006
Karen Ann Kawashima Grady Pilgrim Christakis Bell LLP 53 W. Jackson Blvd. Suite 1515 Chicago, IL 60604 312 939 6580 Email: kkawashima@gradypilgrim.com ATTORNEY TO BE NOTICED
Michael T. Trucco Stamos & Trucco 30 West Monroe Street Suite 1600 Chicago, IL 60603 (312) 630−7979 Email: mtrucco@stamostrucco.com ATTORNEY TO BE NOTICED
Stephen Matthew Libman Burnes & Libman 2 North LaSalle Street 600 Chicago, IL 60602 (312)726−6500 Email: slibman@burnesandlibman.com ATTORNEY TO BE NOTICED
Walter B Connolly , Jr Foley & Lardner 150 West Jefferson Suite 1000 Detroit, MI 48226 (313)963−9517
represented by Diane E. Gianos Walker (See above for address) TERMINATED: 07/23/2004 LEAD ATTORNEY
Keith L. Hunt (See above for address) TERMINATED: 07/24/2002 LEAD ATTORNEY

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 4 of 35

Bennett L. Epstein Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610−4714 (312)832−4500 TERMINATED: 07/23/2004

Dana Elizabeth MacDonald (See above for address) TERMINATED: 07/24/2002

Daniel P Colling (See above for address) TERMINATED: 07/23/2004

Eric M Phillips (See above for address) TERMINATED: 07/23/2004

Jeffrey S. Kopp (See above for address) TERMINATED: 03/16/2006

Walter B Connolly , Jr (See above for address) TERMINATED: 07/23/2004

Defendant Custom Executive Group, Inc.

represented by David A. Epstein Attorney at Law 30 North LaSalle Street Suite 3400 Chicago, IL 60602 (312)553−1479 Email: depstein@bupdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane E. Gianos Walker (See above for address) TERMINATED: 07/23/2004 LEAD ATTORNEY

Bennett L. Epstein (See above for address) ATTORNEY TO BE NOTICED

James Daniel Dasso (See above for address) ATTORNEY TO BE NOTICED

Michael T. Trucco (See above for address) ATTORNEY TO BE NOTICED

Stephen Matthew Libman (See above for address) ATTORNEY TO BE NOTICED

Defendant Custom Executive Group, Inc.

represented by Diane E. Gianos Walker (See above for address) TERMINATED: 07/23/2004

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 5 of 35

LEAD ATTORNEY

Michael T. Trucco (See above for address) ATTORNEY TO BE NOTICED

Stephen Matthew Libman (See above for address) ATTORNEY TO BE NOTICED

Defendant CDN Logistics, Inc.

represented by David A. Epstein (See above for address) ATTORNEY TO BE NOTICED

Intervenor Catherine Copello

represented by Martin K. Denis Barlow Kobata & Denis 525 W. Monroe St., #2360 Chicago, IL 60661 (312) 648−5570 Email: mdenis@bkd−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bethany A Hilbert Barlow Kobata & Denis 525 W. Monroe St., #2360 Chicago, IL 60661 (312) 648−5570 Email: bhilbert@bkd−law.com ATTORNEY TO BE NOTICED

Daniel R. Madock Klein, Dub & Holleb 525 West Monroe Street #2360 Chicago, IL 60661 (312) 628−8852 Email: drm@labor−law.com ATTORNEY TO BE NOTICED

Jessica E Huebsch−Lynott Barlow Kobata & Denis 222 South Riverside Plaza Suite 1410 Chicago, IL 60606 (312) 648−5570

Maureen Kay Feldman Barlow Kobata & Denis 222 South Riverside Plaza Suite 1410 Chicago, IL 60606 (312) 648−5570

Michael David Robbins Michael D. Robbins & Associates 20 North Wacker Drive Suite 3710 Chicago, IL 60606 (312) 899−8000

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 6 of 35

Email: mdrobbins@lawmdr.com ATTORNEY TO BE NOTICED

Intervenor Allison Kennedy

represented by Martin K. Denis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bethany A Hilbert (See above for address) ATTORNEY TO BE NOTICED

Daniel R. Madock (See above for address) ATTORNEY TO BE NOTICED

Jessica E Huebsch−Lynott (See above for address)

Maureen Kay Feldman (See above for address)

Michael David Robbins (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/28/2002 07/03/2002 07/03/2002 07/09/2002 07/09/2002 07/09/2002 07/19/2002 07/19/2002 07/24/2002
07/29/2002

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of John C. Hendrickson, Noelle Christine Brennan as attorney(s) for plaintiff ( no summons(es) issued.) () (gcy) (Entered: 05/28/2002)
3 MOTION by plaintiff for a protective order (Attachments); Notice. (cem) (Entered: 07/11/2002)
4 MOTION by plaintiff for leave to file appearance of Beth A. Miller instanter (Attachment); Notice. (cem) (Entered: 07/11/2002)
2 ATTORNEY APPEARANCE for defendants Custom Co Inc. and Custom Dist by Keith L. Hunt and Dana E. MacDonald. (cem) (Entered: 07/10/2002)
5 MINUTE ORDER of 7/9/02 by Hon. Harry D. Leinenweber : Beth A. Miller's motion for leave to appear is granted [4−1]. Defendant to provide contact information by 7/23/02. No notice (cem) (Entered: 07/11/2002)
6 ATTORNEY APPEARANCE for plaintiff US Equal Employment Opportunity Commission by Beth A. Miller. (cem) (Entered: 07/11/2002)
7 MOTION by defendants for substitution of counsel for Foley & Lardner ; Notice. (cem) (Entered: 07/26/2002)
8 ATTORNEY APPEARANCE for defendants Custom Companies, Inc.and Custom Distribution Network, Inc. by Diane E. Gianos and Bennett L. Epstein. (cem) (Entered: 07/26/2002)
9 MINUTE ORDER of 7/24/02 by Hon. Harry D. Leinenweber : Defendants motion [7−1] for an order granting Foley & Lardner leave to file its appearance on behalf of Custom, and Kenneth L. Hunt and Dana E. MacDonald of the law firm of Keith Hunt & Associates granted leave to withdraw as counsel. Mailed notice (cem) (Entered: 07/26/2002)
10 WAIVER of service of summons as to defendants sent on 7/29/02. (cem) (Entered: 07/30/2002)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 7 of 35

07/29/2002 07/29/2002 07/31/2002 08/01/2002 08/14/2002 08/14/2002 08/20/2002 08/20/2002 08/20/2002
08/30/2002 09/04/2002
09/10/2002 09/17/2002
09/17/2002 09/19/2002 09/19/2002 09/20/2002
09/26/2002
10/15/2002
10/15/2002
10/16/2002

11 ANSWER by defendant Custom Distribution Network, Inc. to complaint of Equal Employment Opportunity Commission [1−1]. (cem) (Entered: 07/30/2002)
12 ANSWER by defendant Custom Companies, Inc. to complaint of Equal Employment Opportunity Commission [1−1]. (cem) (Entered: 07/30/2002)
SCHEDULE set on 7/31/02 by Hon. Harry D. Leinenweber : Status hearing set for September 26, 2002 at 9:00 a.m. Mailed notice (wp) (Entered: 07/31/2002)
13 WAIVER of service of summons as to defendants sent on 7/29/02. (cem) (Entered: 08/05/2002)
14 ATTORNEY APPEARANCE for Catherine Copello and Allison Kennedy by Martin K. Denis, Maureen K. Feldman and Daniel R. Madock. (cem) (Entered: 08/15/2002)
15 MOTION by plaintiffs−intervenors' Catherine Copello and Allison Kennedy to intervene ; notice. (cem) (Entered: 08/21/2002)
16 ATTORNEY APPEARANCE for defendants Custom Companies, Inc. and Custom Distribution Network, Inc. by Eric M. Phillips. (cem) (Entered: 08/21/2002)
17 INTERVENOR'S COMPLAINT by intervenors Catherine Copello and Allison Kennedy. (cem) (Entered: 08/21/2002)
18 MINUTE ORDER of 8/20/02 by Hon. Harry D. Leinenweber : Plaintiffs−intervenors' motion to intervene is granted [15−1]. Defendants' to answer by 9/3/02. No notice (cem) (Entered: 08/21/2002)
19 AGREED MOTION by defendants for 14−day extension of time to respond to plaintiffs−intervenors' complaint ; Notice. (cem) (Entered: 09/05/2002)
20 MINUTE ORDER of 9/4/02 by Hon. Harry D. Leinenweber : Defendants' agreed motion for 14−day extension of time to 9/17/02 to respond to plaintiffs−intervenors' complaint is granted [19−1]. Mailed notice (cem) (Entered: 09/05/2002)
21 MOTION by plaintiff for leave to file appearance of Richard J. Mrizek, instanter ; Notice. (cem) (Entered: 09/20/2002)
22 MINUTE ORDER of 9/17/02 by Hon. Harry D. Leinenweber : Plaintiff's motion for leave to file appearance instanter is granted [21−1]. Mailed notice (cem) (Entered: 09/20/2002)
23 ATTORNEY APPEARANCE for plaintiff US EEOC by Richard J. Mrizek. (cem) (Entered: 09/20/2002)
24 ANSWER by defendant Custom Distribution Network's to plaintiffs−intervenors' complaint [17−1]; Notice. (cem) (Entered: 09/23/2002)
25 ANSWER by defendant Custom Compaines Inc. to plaintiffs−intervnors' complaint [17−1]; Notice. (cem) (Entered: 09/23/2002)
26 RULE 15(a) MOTION by defendant Custom Distribution Network, Inc. for leave to amend its answer and affirmative defenses to the EEOC's complaint to include an additional affirmative defense (Attachment); Notice. (cem) (Entered: 09/30/2002)
27 MINUTE ORDER of 9/26/02 by Hon. Harry D. Leinenweber : Defendant's Rule 15(a) motion for leave to amend its answer and affirmative defenses is granted [26−1]. Status hearing held and continued to 2/26/03 at 9:00 a.m. No notice (cem) (Entered: 09/30/2002)
28 APPLICATION for leave to appear pro hac vice for defendants Custom Companies, Inc. and Custom Distribution Network, Inc. by Daniel P. Colling; Order entered granting leave by Hon. Harry D. Leinenweber. (cem) (Entered: 10/16/2002)
29 APPLICATION for leave to appear pro hac vice for defendants Custom Companies, Inc. and Custom Distribution Network, Inc. by Walter B. Connolly, Jr.; Order entered granting leave by Hon. Harry D. Leinenweber. (cem) (Entered: 10/16/2002)
30 APPLICATION for leave to appear pro hac vice for defendant Custom Companies, Inc. and Custom Distribution Netword, Inc. by Jeffrey S. Kopp; Order entered granting

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 8 of 35

10/29/2002 12/02/2002 12/05/2002
12/17/2002 12/17/2002 12/19/2002
01/07/2003 01/07/2003 01/10/2003 01/13/2003 01/14/2003 01/14/2003
01/14/2003
01/29/2003 01/30/2003 02/03/2003 02/03/2003 02/26/2003
03/24/2003 03/27/2003
04/03/2003

leave by Hon. Harry D. Leinenweber. (cem) (Entered: 10/17/2002)
31 TRANSCRIPT of proceedings for the following date(s): Held on 07/09/02 before Honorable Harry D. Leinenweber. (cem) (Entered: 10/30/2002)
32 MOTION by plaintiff for entry of protective order (Attachments); Notice. (cem) (Entered: 12/06/2002)
33 MINUTE ORDER of 12/5/02 by Hon. Harry D. Leinenweber : EEOC's motion for entry of protective order [32−1] is entered and continued to 12/19/02 at 9:00 a.m. Mailed notice (cem) (Entered: 12/06/2002)
34 RESPONSE by defendant Custom Distribution Network, Inc. to EEOC's motion for protective order [32−1]. (cem) (Entered: 12/18/2002)
35 RESPONSE by defendant Custom Companies, Inc. to EEOC's motion for protective order [32−1] (Attachments). (cem) (Entered: 12/18/2002)
36 MINUTE ORDER of 12/19/02 by Hon. Harry D. Leinenweber : EEOC's motion for entry of protective order is granted in part and denied in part [32−1]. No notice (cem) (Entered: 12/23/2002)
37 LETTER dated 1/7/03 from Marty Denis to Judge Leinenweber. (cem) (Entered: 01/15/2003)
38 LETTER dated 1/7/03 from Diane E. Gianos to Judge Leinenweber (Attachments). (cem) (Entered: 01/15/2003)
41 MOTION by plaintiff for enty of protective order (Attachments); Notice. (cem) (Entered: 01/21/2003)
42 RESPONSE by plaintiffs−intervenors Catherine Copello and Allison Kennedy regarding protective order (Attachments). (cem) (Entered: 01/21/2003)
39 LETTER dated 1/13/03 from Diane E. Gianos to Judge Leinenweber (Attachments). (cem) (Entered: 01/15/2003)
40 MINUTE ORDER of 1/14/03 by Hon. Harry D. Leinenweber : The contact restriction contained in the Court's 1/9/02, protective order is hereby rescinded. (See reverse of minute order.) Mailed notice (cem) (Entered: 01/15/2003)
43 MINUTE ORDER of 1/14/03 by Hon. Harry D. Leinenweber : The court will rule by mail on EEOC's motin for entry of protective order. No notice (cem) (Entered: 01/21/2003)
54 LETTER dated 1/29/03 from Diane E. Gianos to Judge Leinenweber. (cem) (Entered: 09/19/2003)
44 MINUTE ORDER of 1/30/03 by Hon. Harry D. Leinenweber : (Entered protective order). Mailed notice (cem) (Entered: 02/05/2003)
47 LETTER dated 2/3/03 from Daniel R. Madock to Judge Leinenweber. (cem) (Entered: 04/04/2003)
55 LETTER dated 2/3/03 from Richard J. Mrizek to Diane Gianos (Attachment). (cem) (Entered: 09/19/2003)
SCHEDULE set on 2/26/03 by Hon. Harry D. Leinenweber : Status hearing held and continued to April 3, 2003 at 9:00 a.m. Written Discovery to be completed by March 26, 2003. Mailed notice (wp) (Entered: 02/27/2003)
45 NOTICE of change of address by Foley & Lardner attorneys for defendants Custom Companies, Inc. and Custom Distribution Network, Inc. (cem) (Entered: 03/25/2003)
46 MINUTE ORDER of 3/27/03 by Hon. Harry D. Leinenweber : Plaintiff's motion for protective order [3−1] is granted nunc pro tunc effective as of 7/9/02. No notice (cem) (Entered: 03/28/2003)
SCHEDULE set on 4/3/03 by Hon. Harry D. Leinenweber : Status hearing held and continued to January 7, 2004 at 9:00 a.m. No notice (wp) (Entered: 04/03/2003)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 9 of 35

06/10/2003 06/11/2003 06/18/2003
06/26/2003 06/27/2003 07/01/2003
09/16/2003
09/18/2003 09/30/2003 10/06/2003 10/06/2003 10/06/2003 10/10/2003 10/21/2003 10/27/2003 11/13/2003 12/02/2003 12/02/2003

48 MOTION by plaintiffs−intervenors Catherine Copello and Allison Kennedy to compel defendants to fully answer plaintiffs−intervenors interrogatories and document requests and motion for sanctions (Attachments). (cem) (Entered: 06/19/2003)
49 AMENDED NOTICE by plaintiff−intervenors of motion regarding motion to compel [48−1] and motion for sanctions [48−2]. (cem) (Entered: 06/19/2003)
50 MINUTE ORDER of 6/18/03 by Hon. Harry D. Leinenweber : Under the conditions set forth in open court, plaintiffs−intervenors' motion to compel [48−1] and motion for sanctions [48−2] is granted. Defendant to respond by 7/2/03. No notice (cem) (Entered: 06/19/2003)
51 AGREED MOTION by plaintiff for reassignment of EEOC v. Custom Companies 03 C 2293, to Judge Leinenweber and to consolidate 03 C 2293, pending before Judge Lindberg, with 02 C 3768 (Attachment); Notice. (cem) (Entered: 07/02/2003)
52 MOTION by defendant Custom Companies, Inc. to extend the deposition time limit of Catherine Copello ; Notice. (cem) (Entered: 07/02/2003)
53 MINUTE ORDER of 7/1/03 by Hon. Harry D. Leinenweber : The agreed motion for reassignment [51−1] and consolidation for all purposes of case 03 C 2293 now pending before Judge Lindberg is granted [51−2]. Custom's motion to extend the deposition time limit of Catherine Copello [52−1] is granted, under the conditions set forth in open court. No notice (cem) (Entered: 07/02/2003)
56 MOTION by plaintiff to compel defendant Custom Companies to comply with the Court's 6/18/03, order , to compel production of documents responsive to plaintiff's first and second requests for production or documents , and to award sanctions (Attachments); Notice. (cem) (Entered: 09/19/2003)
57 MINUTE ORDER of 9/18/03 by Hon. Harry D. Leinenweber : Plaintiff's motion to compel [56−1] [56−2] [56−3] is entered and continued to 9/30/03 at 9:00 a.m. Defendants to produce by 9/29/03. No notice (cem) (Entered: 09/19/2003)
58 MINUTE ORDER of 9/30/03 by Hon. Harry D. Leinenweber : Plaintiff's motion to compel [56−1], [56−2], [56−3] is entered and continued to 10/7/03 at 9:00 a.m. No notice (cem) (Entered: 10/03/2003)
59 ATTORNEY APPEARANCE for defendant Custom Companies Inc. by Jason Robert Bent. (cem) (Entered: 10/07/2003)
60 MOTION by defendants to bar evidence of treatment, symptoms, or conditions of emotional distress (Attachmentsd); Notice. (air) (Entered: 10/14/2003)
61 MEMORANDUM by defendants in support of their motion to bar evidence of treatment, symptoms, or conditions of emotional distress [60−1]. (air) (Entered: 10/14/2003)
62 MINUTE ORDER of 10/10/03 by Hon. Harry D. Leinenweber: Status hearing held. Defendants' motion to bar evidence [60−1] is entered and continued to 9:00 a.m. on 10/21/03. No notice (air) (Entered: 10/14/2003)
63 MINUTE ORDER of 10/21/03 by Hon. Harry D. Leinenweber: Defendant's motion to bar is withdrawn [60−1]. Mailed notice (air) (Entered: 10/23/2003)
64 MINUTE ORDER of 10/27/03 by Hon. Harry D. Leinenweber : Kennedy's motion to intervene is denied. Entered Memorandum Opinion and Order. Mailed notice (cem) (Entered: 10/28/2003)
65 ATTORNEY APPEARANCE for plaintiff by Deborah Lois Hamilton; Notice. (jmp) (Entered: 11/25/2003)
67 RULE 12(C) MOTION by defendants for partial judgment on the pleadings ; Memorandum of law in support (Attachments); Notice. (cem) Modified on 12/05/2003 (Entered: 12/05/2003)
68 MOTION by defendants to limit the class in case no. 02 C 3768 ; Memorandum of law in support (Attachments); Notice. (cem) (Entered: 12/05/2003)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 10 of 35

12/03/2003 12/04/2003
01/20/2004 01/20/2004 01/20/2004 02/03/2004 02/04/2004 02/11/2004 02/13/2004 02/18/2004 02/18/2004 02/20/2004 02/23/2004
02/24/2004 02/24/2004 02/24/2004 02/25/2004 02/26/2004 03/09/2004

66 WITHDRAWAL by Noelle C. Brennan of appearance for plaintiff US EEOC; Notice. (cem) (Entered: 12/04/2003)
69 MINUTE ORDER of 12/4/03 by Hon. Harry D. Leinenweber : Status hearing re−set for 3/9/04 at 9:00 a.m. Briefing schedule set on defendants' motion to limit the class [68−1] and defendants' motion for partial judgment on the pleadings [67−1]. Plaintiff's response to the filed by 1/20/04. Defendants' reply brief due 1/27/04. The court will rule orally on 2/26/04 at 9:00 a.m. Mailed notice (cem) (Entered: 12/05/2003)
70 ATTORNEY APPEARANCE for intervenor Catherine Copello, intervenor Allison Kennedy by Jessica E.H. Lynott. (cem) (Entered: 01/21/2004)
71 RESPONSE by plaintiff in opposition to defendant Custom Companies' and Custom Distribution Network's motions to limit the class in case no. 02 C 3768 [68−1]. (cem) Modified on 01/27/2004 (Entered: 01/22/2004)
72 RESPONSE by intervenor Allison Kennedy in opposition to motion for partial judgment on the pleadings [67−1] (Attachment); Notice. (lc) (Entered: 01/27/2004)
73 REPLY memorandum of law by defendant Custom Companies, Inc. in support of its motion to limit the class in case no. 02 C 3768 [68−1]. (cem) (Entered: 02/05/2004)
74 CORRECTED REPLY memorandum of law by defendant Custom Co Inc. in support of its Rule 12(C) motion for partial judgment on the pleadings [67−1] (Attachments); Notice. (cem) (Entered: 02/05/2004)
76 MOTION by plaintiff for leave to file surreply ; Notice. (cem) (Entered: 02/19/2004)
75 OPPOSITION by defendants to plaintiff's EEOC's motion for leave to file surreply. (cem) (Entered: 02/17/2004)
77 MINUTE ORDER of 2/18/04 by Hon. Harry D. Leinenweber : Under the condition set forth in open court, plaintiff's motion for leave to file surreply is granted [76−1]. No notice (cem) (Entered: 02/19/2004)
78 SURREPLY by plaintiff in opposition to defendant Custom Companies' and Custom Distribution Network's motions to limit the class in case no. 02 C 3768 and 03 C 2298 [68−1]. (cem) (Entered: 02/19/2004)
81 MOTION by plaintiff for leave to file first amended complaint (Attachments); Notice. (cem) (Entered: 03/01/2004)
79 MINUTE ORDER of 2/23/04 by Hon. Harry D. Leinenweber: The oral ruling date of February 26, 2004 for defendants' motion for partial judgment on the pleadings and motions to limit class is stricken. The Court will rule by mail. Mailed notice (gma) (Entered: 02/24/2004)
82 MOTION by plaintiff for leave to file supplemental authority (Attachments); Notice. (cem) (Entered: 03/01/2004)
83 MINUTE ORDER of 2/24/04 by Hon. Harry D. Leinenweber : Defendants' motion for partial judgment on the pleadings [67−1] is denied for the reasons set forth in this order. (See reverse of minute order.) Mailed notice (cem) (Entered: 03/01/2004)
84 MINUTE ORDER of 2/24/04 by Hon. Harry D. Leinenweber : Plaintiff's motion for leave to file first amended complaint is granted in part and denied in part [81−1]. No notice (cem) (Entered: 03/01/2004)
80 RESPONSE by defendant to plaintiff EEOC's motion for leave to file supplemental authority. (cem) (Entered: 02/26/2004)
85 MINUTE ORDER of 2/26/04 by Hon. Harry D. Leinenweber : Plaintiff's motion for leave to file supplemental authority is granted [82−1]. No notice (cem) (Entered: 03/01/2004)
SCHEDULE set on 3/9/04 by Hon. Harry D. Leinenweber : Status hearing held and continued to June 9, 2004 at 9:00 a.m. Fact discovery to be completed by June 9, 2004. No notice (wp) (Entered: 03/09/2004)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 11 of 35

03/10/2004 03/23/2004 03/23/2004 03/23/2004 03/23/2004 04/07/2004
05/14/2004 05/14/2004 05/21/2004 05/21/2004 05/25/2004 05/25/2004
06/01/2004 06/08/2004 06/08/2004 06/09/2004

86 FIRST AMENDED COMPLAINT [1−1] by plaintiff; adding Custom Executive Group Inc.; Notice. (cem) (Entered: 03/11/2004)
87 ATTORNEY APPEARANCE for defendant Custom Executive Group Inc by Diane E. Gianos, Bennett L. Epstein; Notice. (cem) (Entered: 03/24/2004)
88 ANSWER by defendant Custom Distribution Network, Inc. to first amended complaint of Equal Employment Opportunity Commission [86−1]; Notice. (cem) (Entered: 03/24/2004)
89 ANSWER by defendant Custom Executive Group Inc. to first amended complaint of Equal Employment Opportunity Commission [86−1]; Notice. (cem) (Entered: 03/24/2004)
90 ANSWER by defendant Custom Companies to first amended complaint of Equal Employment Opportunity Commission [86−1]; Notice. (cem) (Entered: 03/24/2004)
91 MINUTE ORDER of 4/7/04 by Hon. Harry D. Leinenweber : Enter memorandum opinion and order: Custom's motions to limit the class in case no. 02 C 3768 and 03 C 2293 [68−1] are granted with regard to rearward time but denied with regard to forward time limits. Entered Memorandum Opinion and Order. Mailed notice (cem) (Entered: 04/08/2004)
93 MOTION by plaintiff US EEOC for leave to file amended complaints adding CDN Logistics where Custom Companies is named or substituting CDN Logistics, Inc. for Custom Distribution Network (Attachments); Notice of motion (eav) (Entered: 05/28/2004)
97 MOTION by plaintiff for leave to file amended complaints adding CDN Logistics where Custom Companies is named , or substituting CDN Logistics, Inc. for Custom Distribution Network . (RESTRICTED) (air) (Entered: 05/28/2004)
92 MOTION by defendants The Custom Companies, Inc., Custom Distribution Network, and Custom Executive Group, Inc. to compel deposition of a class claimant and to compel production of documents . (RESTRICTED) (gma) (Entered: 05/25/2004)
94 MOTION by defendants Custom Companies, Inc., Custom Distribution Network, and Custom Executive Group, Inc to compel the deposition of a class claimant and production of documents (Attachments); Notice of motion (eav) (Entered: 05/28/2004)
95 EMERGENCY MOTION by defendants Custom Custom Companies, Inc., Custom Distribution Network, Inc., and Custom Executive Group, Inc to quash subpoenas and for protective order (Attachment); Notice of emergency motion (eav) (Entered: 05/28/2004)
96 MINUTE ORDER of 5/25/04 by Hon. Harry D. Leinenweber : Plaintiff's motion for leave to file amended complaint. Answer brief to motion due 6/8/04. [93−1] Reply to answer brief due 6/15/04. Ruling on plaintiff's motion for leave to file amended complaint set for 7/14/04 at 9:00 a.m. Status hearing re−set for 7/29/04 at 9:00 a.m. Defendants' motion to compel is granted. [94−1] Plaintiff to produce by 6/8/04. Under the conditions stated in open court, defendants emergency motion to quash subpoenas [95−1] and for a protective order [95−2] is granted in part. Discovery cut−off date 7/31/04. No notice (eav) (Entered: 05/28/2004)
98 MOTION by plaintiff US EEOC for an order requiring defendant to show cause why it should not be held in contempt the court's May 25, 2004 order and to compel production of documents (Attachments); Notice. (gma) (Entered: 06/07/2004)
101 MOTION by plaintiff for entry protective order and to compel defendant Custom Companies to produce a witness pursuant to 30(B)(6) Notice (Attachments); Notice. (lc) (Entered: 06/16/2004)
102 MOTION by plaintiff for entry of protective order and to compel defendant Custom Companies to produce a witness pursuant to 30(B)(6) Notice (Attachments); Notice. (lc) (Entered: 06/16/2004)
100 EMERGENCY MOTION by defendants to bar testimony (RESTRICTED). (ntf) Modified on 06/14/2004 (Entered: 06/14/2004)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 12 of 35

06/09/2004 06/10/2004
06/15/2004 06/17/2004 06/22/2004 06/22/2004 06/24/2004 06/24/2004 07/01/2004 07/01/2004 07/02/2004 07/13/2004 07/14/2004 07/20/2004 07/20/2004
07/20/2004

103 MOTION by defendants to bar testimony (Attachment); Notice. (lc) (Entered: 06/16/2004)
99 MINUTE ORDER of 6/10/04 by Hon. Harry D. Leinenweber: Defendant's emergency motion to bar testimony is entered Defendant's emergency motion to bar testimony is entered and continued to 07/07/04 at 9:00 a.m. Defendants' response to plaintiff's motion for entry of protective order and motion to compel [92−1] by 06/17/04. Plaintiff's reply brief due 06/24/04. The court will rule orally on 07/07/04 at 9:00 a.m. No notices (cdy) (Entered: 06/14/2004)
104 RESPONSE by defendants to plaintiff EEOC's motion for leave to file amended complaints adding CDN Logisitics where custom companies is named or substituting CDN Logistics, Inc. for Custom Distribution Network. Notice. (RESTRICTED). (gcy) (Entered: 06/17/2004)
105 STIPULATION by the parties (cdy) (Entered: 06/18/2004)
106 REPLY by plaintiff in support of its motion for leave to file amended complaints adding CDN Logistics where Custom Companies is named [97−1] or substituting CDN Logistics, Inc. for Custom Distribution Network (Attachments); Notice (cdy) (Entered: 06/23/2004)
107 REPLY by plaintiff in support of its motion for leave to file amended complaints adding CDN Logistics where Custom Companies is named [97−1], or substituting CDN Logistics, Inc. for Custom Distribution Network [97−2] (RESTRICTED) (cdy) (Entered: 06/23/2004)
108 RESPONSE by defendants to plaintiff's motion for entry of protective order [102−1] and motion to compel defendant Custom Companies to produce a witness pursuant to 30(B)(6) Notice [102−2] (lc) (Entered: 06/25/2004)
109 RESPONSE by defendants to plaintiff's motion for entry protective order [101−1] and motion to compel defendant Custom Companies to produce a witness pursuant to 30(B)(6) Notice [101−2] (RESTRICTED) (lc) Modified on 06/25/2004 (Entered: 06/25/2004)
110 REPLY by EEOC in support of its motion for entry of protective order and motion to compel defendant custom companies to produce a witness pursuant to 30 (B)(6) Notice (Attachments); Notice. (gcy) (Entered: 07/06/2004)
111 Document Sealed (pursuant to Court Order). (gcy) (Entered: 07/06/2004)
112 MINUTE ORDER of 7/2/04 by Hon. Harry D. Leinenweber : The rule date on defendant's motion for leave to file amended complaints adding CDN Logistics and defendants' motion for entry of a protective order is reset to 7/20/04 at 9:00 a.m. All other ruling dates are stricken. Mailed notice (gcy) (Entered: 07/06/2004)
113 SURREPLY by defendants to motion for entry of protective order [102−1] and to compel defendant Custom Companies to produce a witness pursuant to 30(B)(6) Notice [102−2] (Attachment). (lc) (Entered: 07/14/2004)
114 MOTION by defendants for leave to file instanter surreply in opposition to EEOC's motion for entry of a protective order and motion to compel defendant ustom Companies to produce a witness pursuant to 30(B)(6) notice ; Notice (ar) (Entered: 07/21/2004)
115 MINUTE ORDER of 7/20/04 by Hon. Harry D. Leinenweber : Defendants' motion for leave to file instanter surreply is denied as moot [114−1]. Defendants' motion to bar testimony is entered and continued to 9:00 a.m. on 08/31/04 [100−1] [103−1]. Status hearing set for 9:00 a.m. on 08/31/04. No notice (ar) (Entered: 07/21/2004)
116 MINUTE ORDER of 7/20/04 by Hon. Harry D. Leinenweber : EEOC's motion for a protective order is denied [101−1] [102−1]. The motion to compel defendant Custom Companies to produce a witness pursuant to 30(B)(6) is denied as moot [102−2]. Entered Memorandum Opinion and Order. No notice (ar) Modified on 07/21/2004 (Entered: 07/21/2004)
117 MINUTE ORDER of 7/20/04 by Hon. Harry D. Leinenweber : EEOC's motion for leave to file amended complaints in Cases 02−C−3768 and 03−C−2293 is granted

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 13 of 35

07/20/2004 07/22/2004 07/22/2004 07/23/2004 08/10/2004 08/11/2004 08/24/2004
08/31/2004 09/08/2004 09/08/2004 09/17/2004
11/23/2004 12/07/2004 12/09/2004 12/09/2004 12/09/2004 12/23/2004 01/10/2005 01/11/2005

[97−1]. Entered Memorandum Opinion and Order. No notice (ar) (Entered: 07/21/2004)
118 MOTION by defendants for a protective order ; Memorandum of law (Attachments); Notice (ar) (Entered: 07/23/2004)
SCHEDULE set on 7/22/04 by Hon. Harry D. Leinenweber : Status hearing set for July 29, 2004 is is stricken. No notice (wp) (Entered: 07/22/2004)
119 MINUTE ORDER of 7/22/04 by Hon. Harry D. Leinenweber : Defendant Custom Companies, Inc.'s motion for protective order is denied [118−1]. No notice (ar) (Entered: 07/23/2004)
120 SECOND AMENDED COMPLAINT [86−1] by plaintiff terminating defendant Custom Dist; adding Custom Exec Grp Inc; Notice. (lc) (Entered: 07/26/2004)
122 MOTION by plaintiff US EEOC for leave to file second amended complaint in case no. 03c2293 (Attachments); Notice of filing. (rbf) (Entered: 08/27/2004)
121 ATTORNEY APPEARANCE for CDN Logistics Inc by David A. Epstein (lc) (Entered: 08/13/2004)
123 MINUTE ORDER of 8/24/04 by Hon. Harry D. Leinenweber : Plaintiff's motion for leave to file second amended complaint in case no. 03c2293 is granted [122−1]. Defendant's to answer by 09/10/04. Defendant's motion to bar testimony is reset to 11/30/04 at 9:00 a.m. Status hearing of 08/31/04 to stand. Discovery extended to 11/22/04. No notice. (rbf) (Entered: 08/27/2004)
SCHEDULE set on 8/31/04 by Hon. Harry D. Leinenweber : Status hearing held and continued to September 30, 2004 at 9:00 a.m. No notice (wp) (Entered: 08/31/2004)
124 ANSWER by defendant Custom Co Inc second amended complaint of equal employment opportunity commission [120−1]. (rbf) (Entered: 09/09/2004)
125 ANSWER by defendant Custom Exec Grp Inc to second amended complaint of equal employment opportunity commission [120−1]; Notice of filing. (rbf) (Entered: 09/09/2004)
126 MINUTE ORDER of 9/17/04 by Hon. Harry D. Leinenweber : Plaintiff's motion to compel defendant Custom Companies to comply with the Court's 6/18/03, order [56−1], to compel production of documents responsive to plaintiff's first and second requests for production or documents [56−2], and to award sanctions [56−3] are denied as moot, nunc pro tunc. No notice. (rbf) (Entered: 09/20/2004)
SCHEDULE set on 11/23/04 by Hon. Harry D. Leinenweber : Status hearing reset to February 10, 2005 at 9:00 a.m. Mailed notice (wp) (Entered: 11/23/2004)
129 MOTION by plaintiff for entry of protective order limiting number of company representatives at class member deposition (Attachments); Notice (cdy) (Entered: 12/13/2004)
127 ATTORNEY APPEARANCE for Catherine Copello, Allison Kennedy by Bethany A Hilbert (rbf) (Entered: 12/10/2004)
128 MINUTE ORDER of 12/9/04 by Hon. Harry D. Leinenweber : EEOC's motion for entry of protective order is granted. No notice (rbf) (Entered: 12/13/2004)
130 ANSWER by defendant CDN Logistics Inc to the EEOC's second amended complaint [120−1]. (rbf) (Entered: 12/13/2004)
132 MOTION by Pooh Bah Enterprises, Inc. to quash subpoena and for other relief (Attachments); Notice of motion (rbf) (Entered: 01/12/2005)
131 RESPONSE by plaintiff US EEOC to Pooh Bah Enterprises, Inc.'s motion to quash subpoena and other relief (Attachments) (rmm) (Entered: 01/11/2005)
133 MINUTE ORDER of 1/11/05 by Hon. Harry D. Leinenweber : Pooh Bah Enterprises Inc's motion to quash subpoena [132−1] and for other relief [132−2] is granted in part and denied in part. No notice (rbf) (Entered: 01/12/2005)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 14 of 35

02/04/2005 03/02/2005 03/21/2005
04/28/2005 04/28/2005 05/03/2005 05/03/2005 05/03/2005 05/03/2005 05/04/2005 05/05/2005
06/09/2005
06/23/2005 07/14/2005 07/18/2005 07/18/2005
07/20/2005

134 MINUTE entry before Judge Harry D. Leinenweber : Status hearing reset for 3/2/2005 at 09:00 AM. (rbf, ) (Entered: 02/07/2005)
135 MINUTE entry before Judge Harry D. Leinenweber : Status hearing held and continued to June 9, 2005 at 9:00 a.m. Discovery ordered closed by 6/2/2005. No notice (wp, ) (Entered: 03/03/2005)
136 MINUTE entry before Judge Harry D. Leinenweber : Motion for order 98 is denied as moot. Motion to compel 98 is denied as moot. Motion to bar 100 is denied as moot. Motion to bar 103 is denied as moot. Motions terminated: motion to bar 103 , motion to bar 100 , motion for order 98 No notice (wp, ) (Entered: 03/21/2005)
137 RULE 30(a)(2) MOTION by CDN Logistics, Inc. for leave to take additional depositions of class claimants.(rbf, ) (Entered: 04/29/2005)
138 NOTICE of Motion by David A. Epstein for presentment of motion by CDN Logistics, Inc for leave to take additional depositions of class claimants 137 before Honorable Harry D. Leinenweber on 5/5/2005 at 09:30 AM. (rbf, ) (Entered: 04/29/2005)
139 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to compel production of original e−mails (gma, ) (Entered: 05/04/2005)
140 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to compel production of documents responsive to plaintiff's second requests for production of documents (gma, ) (Entered: 05/04/2005)
141 NOTICE of Motion by Richard John Mrizek for presentment of motion to compel 140 , motion to compel 139 before Honorable Harry D. Leinenweber on 5/5/2005 at 09:30 AM. (gma, ) (Entered: 05/04/2005)
142 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission for entry of protective order limiting CDN Logistics from redeposing class members on areas previously covered in deponent's prior depositions (gma, ) (Entered: 05/04/2005)
144 OBJECTION by plaintiff−intervenors' to CDN Logistics, Inc.'s Rule 30(a)(2) motion for leave to take additional depositions of class claimants; Notice of filing. (rbf, ) (Entered: 05/06/2005)
143 MINUTE entry before Judge Harry D. Leinenweber : Plaintiff's motion to compel production of original emails is entered and continued to June 9, 2005 at 9:00 a.m. Subject to the limits imposed, EEOC's motion for protective order limiting CDN is denied. Subject to redactions, EEOC's Motion to Compel production is granted. CDN's Motion for leave to take additional depositions is granted. No notice (wp, ) (Entered: 05/06/2005)
145 MINUTE entry before Judge Harry D. Leinenweber : Plaintiff's motion to compel production of original e−mails is continued to June 23, 2005 at 9:00 a.m. Status hearing set for August 2, 2005 at 9:00 a.m. Depositions to be completed by August 2, 2005. No notice (wp, ) (Entered: 06/15/2005)
146 MINUTE entry before Judge Harry D. Leinenweber : Defendant's Motion to Compel is continued to July 14, 2005 at 9:00 a.m. Mailed notice (wp, ) (Entered: 06/30/2005)
147 MINUTE entry before Judge Harry D. Leinenweber : Plaintiff's Motion to compel 139 , motion to compel 140 is continued to August 30, 2005 at 9:00 a.m. Status hearing reset to August 30, 2005 at 9:00 a.m. No notice (wp, ) (Entered: 07/14/2005)
148 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission for entry of protective order (gma, ) (Entered: 07/18/2005)
149 NOTICE of Motion by U.S. Equal Employment Opportunity Commission for presentment of MOTION by Plaintiff U.S. Equal Employment Opportunity Commission for entry of protective order 148 before Honorable Harry D. Leinenweber on 7/20/2005 at 09:30 AM. (gma, ) (Entered: 07/18/2005)
150 MINUTE entry before Judge Harry D. Leinenweber :For the reasons set forth in open court, EEOC's Motion for protective order 148 is denied. CDN Logistics, Inc. granted leave to depose investigator. No notice(wp, ) (Entered: 07/21/2005)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 15 of 35

08/30/2005 09/30/2005 11/02/2005 11/15/2005 11/30/2005 12/13/2005 12/23/2005 12/23/2005 12/23/2005 12/27/2005 12/27/2005 01/03/2006 01/04/2006
02/01/2006 02/16/2006 03/14/2006
03/14/2006 03/15/2006
03/16/2006

151 MINUTE entry before Judge Harry D. Leinenweber : Status hearing held and continued to October 19, 2005 at 9:00 a.m. No notice (wp, ) (Entered: 09/06/2005)
152 MINUTE entry before Judge Harry D. Leinenweber : Status hearing reset for November 16, 2005 at 09:00 AM. Mailed notice (wp, ) (Entered: 09/30/2005)
153 ATTORNEY Appearance by Nathan Diamond Falk for Unknown Transportation Personnel Services (rmm, ) (Entered: 11/07/2005)
154 MINUTE entry before Judge Harry D. Leinenweber : Status hearing reset for December 13, 2005 at 09:00 AM. (wp, ) (Entered: 11/15/2005)
155 TRANSCRIPT of proceedings for the following dates: 7/20/2004, 7/20/2005; Before the Honorable Harry D. Leinenweber (2 vols: 155−1, 155−2) (rmm, ) (Entered: 12/01/2005)
156 MINUTE entry before Judge Harry D. Leinenweber : Status hearing held and continued to March 16, 2006 at 9:00 a.m. All discovery extended to March 16, 2006. (wp, ) (Entered: 12/19/2005)
157 MOTION by Defendant Custom Companies, Inc. to expedite Motion to Rule 35 Mental Examination (Attachments: # 1 Exhibit Exhibits A−F)(Gianos, Diane) (Entered: 12/23/2005)
158 NOTICE of Motion by Diane E. Gianos for presentment of motion to expedite 157 before Honorable Harry D. Leinenweber on 12/28/2005 at 09:30 AM. (Gianos, Diane) (Entered: 12/23/2005)
159 SEALED DOCUMENTS filed by defendants (vmj, ) (Entered: 12/27/2005)
160 NOTICE of Motion by Diane E. Gianos for presentment of motion to expedite 157 before Honorable Harry D. Leinenweber on 1/4/2006 at 09:30 AM. (Gianos, Diane) (Entered: 12/27/2005)
161 SEALED DOCUMENT pursuant to Local Rule 26.2 (rmm, ) (Entered: 12/28/2005)
163 OPPOSITION by plaintiffs−intervenors to defendants' expedited motion to take Rule 35 mental examination (vmj, ) (Entered: 01/09/2006)
162 MINUTE entry before Judge Harry D. Leinenweber : Defendants' Motion to to Take Rule 35 Mental Examination 157 is granted, for the reasons stated in open court. Reports due two weeks after exam. Plaintiff to designate expert two weeks thereafter. (wp, ) (Entered: 01/06/2006)
164 TRANSCRIPT of Proceedings before Judge Harry D. Leinenweber held on 1/4/06 (Volumes I). (gcy, ) (Entered: 02/02/2006)
165 LETTER from Jeffrey S. Kopp dated 2/13/2006. (rmm, ) (Entered: 02/21/2006)
166 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to strike Defendants' Designation of a Human Resources Expert (Attachments: # 1 Memorandum in Support# 2 Exhibit Exhibit A# 3 Exhibit Exhibit B)(Mrizek, Richard) (Entered: 03/14/2006)
167 NOTICE of Motion by Richard John Mrizek for presentment of motion to strike 166 before Honorable Harry D. Leinenweber on 3/16/2006 at 09:30 AM. (Mrizek, Richard) (Entered: 03/14/2006)
168 RESPONSE by Custom Companies, Inc., Custom Executive Group, Inc. in Opposition to MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to strike Defendants' Designation of a Human Resources Expert 166 /Defendants The Custom Companies, Inc. And Custom Executive Groups, Inc.'s Response In Opposition To Plaintiff EEOC's Motion To Strike Defendants' Designation Of A Human Resources Expert (Goroff, David) (Entered: 03/15/2006)
169 MINUTE entry before Judge Harry D. Leinenweber : Pursuant to the letter dated February 13, 2006 from Jeffrey S. Kopp, the clerk of the court is directed to remove attorney Jeffrey S. Kopp as counsel of record for Custom Companies, Inc. Diane Gianos of Foley & Lardner LLP shall remain as counsel for Custom. Mailed notice (jmm, ) (Entered: 03/17/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 16 of 35

03/16/2006
03/20/2006 03/27/2006 06/19/2006
06/19/2006 06/22/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006 07/24/2006 07/24/2006 07/26/2006

170 MINUTE entry before Judge Harry D. Leinenweber : Status hearing held. Trial set for November 6, 2006 at 10:00 a.m. Pretrial order to be submitted October 30, 2006. The court will rule by mail on EEOC's motion to strike. Defendant ot file its motion for summary judgment with supporting brief to be filed by June 30, 2006. Responses due by August 30, 2006. Reply brief due September 30, 2006. Parties granted leave to file briefs in excess of fifteen pages but not to exceed thirty pages. (wp, ) (Entered: 03/20/2006)
171 MINUTE entry before Judge Harry D. Leinenweber: The EEOC's Motion to Strike is denied. The Court extends the discovery deadline solely for the EEOC to depose Michael A. Robbins. The Court also denies the Motion insofar as it is barred on lateness. Mailed notice (jmm, ) (Entered: 03/21/2006)
172 MINUTE entry before Judge Harry D. Leinenweber : Motion to compel 139 is denied as moot. Motions terminated: (wp, ) (Entered: 03/27/2006)
173 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for leave to file excess pages /Motion of Defendants The Custom Companies, Inc. and Custom Executive Group, Inc. for Leave to File a Memorandum in Support of Their Joint Motion for Summary Judgment of Additional Page Length (Goroff, David) (Entered: 06/19/2006)
174 NOTICE of Motion by David Barry Goroff for presentment of motion for leave to file excess pages, 173 before Honorable Harry D. Leinenweber on 6/22/2006 at 09:30 AM. (Goroff, David) (Entered: 06/19/2006)
175 MINUTE entry before Judge Harry D. Leinenweber : Defendants' Motion for leave to file excess pages not to exceed 75 pages 173 is granted. Mailed notice (wp, ) (Entered: 06/22/2006)
176 MOTION by defendants Custom Companies, Inc., Custom Executive Group, Inc., for summary judgment; Notice (RESTRICTED). (cdy, ) (Entered: 07/06/2006)
177 MEMORANDUM by Custom Companies, Inc., Custom Executive Group, Inc. in Support of motion for summary judgment 176 (RESTRICTED). (cdy, ) (Entered: 07/06/2006)
178 LOCAL RULE 56.1 Statement of undisputed material facts by Custom Companies, Inc., Custom Executive Group, Inc. entitling them to motion for summary judgment 176 (RESTRICTED). (cdy, ) (Entered: 07/06/2006)
179 MOTION by Defendant CDN Logistics, Inc. for summary judgment (RESTRICTED). (cdy, ) (Entered: 07/06/2006)
180 BRIEF by CDN Logistics, Inc. in Support of motion for summary judgment 179 (RESTRICTED). (cdy, ) (Entered: 07/06/2006)
181 LOCAL RULE 56.1 Statement by CDN Logistics, Inc. regarding motion for summary judgment 179 (RESTRICTED). (cdy, ) (Entered: 07/06/2006)
182 EXHIBITS 1−22 (Box 1of 2) and EXHIBITS 23−57 (Box 2 of 2) by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in support of Rule 56.1 statement of undisputed facts entitling them to summary judgment 178 (RESTRICTED).(cdy, ) (Entered: 07/06/2006)
183 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission, Intervenor Parties Catherine Copello, Allison Kennedy to strike Defendants' Local Rule 56.1 Statements of Fact and to Deny Defendants' Motion for Summary Judgment (Hilbert, Bethany) (Entered: 07/24/2006)
184 NOTICE of Motion by Bethany A Hilbert for presentment of motion to strike, 183 before Honorable Harry D. Leinenweber on 7/27/2006 at 09:30 AM. (Hilbert, Bethany) (Entered: 07/24/2006)
185 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for leave to file A Statement Of Material Facts In Support Of Their Joint Motion For Summary Judgment Of Additional Page Length Nunc Pro Tunc And In Opposition To Plaintiff EEOC And Plaintiff−Intervenors' Motion To Strike (Goroff, David) (Entered: 07/26/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 17 of 35

07/26/2006 07/27/2006 09/13/2006 09/13/2006 09/13/2006 09/13/2006 09/13/2006 09/15/2006
09/15/2006 09/15/2006 09/19/2006
10/06/2006 10/06/2006 10/06/2006 10/06/2006 10/06/2006
10/06/2006

186 NOTICE of Motion by David Barry Goroff for presentment of motion for leave to file, 185 before Honorable Harry D. Leinenweber on 7/27/2006 at 09:30 AM. (Goroff, David) (Entered: 07/26/2006)
187 MINUTE entry before Judge Harry D. Leinenweber : Plaintiff EEOC and Plaintiff−Intervenors' Motion to strike 183 is denied. Briefing schedule extended as indicated in open court. Mailed notice (wp, ) (Entered: 07/28/2006)
188 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission, Intervenor Parties Catherine Copello, Allison Kennedy for leave to file Memorandum in Excess of Page Limit (Hilbert, Bethany) (Entered: 09/13/2006)
189 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission, Intervenor Parties Catherine Copello, Allison Kennedy for leave to file Local Rule 56.1(b)(3)(B) Statement in Excess of 40 Paragraphs (Hilbert, Bethany) (Entered: 09/13/2006)
190 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to strike Parts of Custom Companies' Motion for Summary Judgment (Hilbert, Bethany) (Entered: 09/13/2006)
191 NOTICE of Motion by Bethany A Hilbert for presentment of motion for leave to file 188 , motion for leave to file 189 , motion to strike 190 before Honorable Harry D. Leinenweber on 9/19/2006 at 09:30 AM. (Hilbert, Bethany) (Entered: 09/13/2006)
194 SEALED DOCUMENTS by Plaintiff (RESTRICTED) (mb, ) (Entered: 09/18/2006)
192 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for leave to file Substitute Revised Declarations Nunc Pro Tunc In Support Of Custom's Motion for Summary Judgment and Opposition Of Defendants The Custom Companies, Inc. And Custom Executive Group, Inc. To The Motion Of Plaintiffs−Intervenors To Strike Parts Of Custom Companies' Motion For Summary Judgment (Goroff, David) (Entered: 09/15/2006)
193 NOTICE of Motion by David Barry Goroff for presentment of motion for leave to file, 192 before Honorable Harry D. Leinenweber on 9/19/2006 at 09:30 AM. (Goroff, David) (Entered: 09/15/2006)
195 SEALED DOCUMENT by Defendant (RESTRICTED) (mb, ) (Entered: 09/18/2006)
196 MINUTE entry before Judge Harry D. Leinenweber : Intervenor's Motion for leave to file in excess 188 is granted. Intervenor's Motion for leave to file 189 is granted. Motion to strike 190 is taken under advisement. Defendants' Motion for leave to substitute 192 is granted. Defendant's reply brief to the motion for summary judgment is now due by October 6, 2006. Mailed notice (wp, ) (Entered: 09/19/2006)
197 ATTORNEY Appearance for Defendants Custom Companies, Inc., Custom Executive Group, Inc. by James Daniel Dasso (Dasso, James) (Entered: 10/06/2006)
198 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to sever CUSTOM'S MOTION TO SEVER OR TO ORDER SEPARATE TRIALS (Dasso, James) (Entered: 10/06/2006)
199 NOTICE of Motion by James Daniel Dasso for presentment of motion to sever 198 before Honorable Harry D. Leinenweber on 10/12/2006 at 09:30 AM. (Dasso, James) (Entered: 10/06/2006)
200 SEALED DOCUMENT. Reply Memorandum in support of motion for summary judgment of defendants the Custom Companies, Inc. and Custom Executive Group, Inc. (RESTRICTED) (mb, ) (Entered: 10/11/2006)
201 SEALED DOCUMENT. The Custom Companies, Inc. and Custom Executive Group, Inc.'s Reply to the EEOC's and Intervenors Catherine Copello's and Allison Kennedy's Joint Rule 56.1(B)(3) Statement of Additional Material Facts that Preclude Summary Judgment. (RESTRICTED) (mb, ) (Entered: 10/11/2006)
202 SEALED DOCUMENT. Volume One of the Exhibits to The Custom Companies, Inc. and Custom Executive Grouip, Inc.'s Reply to the EEOC's and Intervenors Catherine Copello's and Allison Kennedy's Joint Rule 56.1(B)(3) Statment of Additional Material Facts that Preclude Summary Judgment. (RESTRICTED) (mb, ) (Entered:

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 18 of 35

10/06/2006 10/06/2006 10/11/2006 10/12/2006 10/20/2006 10/23/2006 10/23/2006 10/23/2006 10/23/2006
10/23/2006 10/24/2006 10/24/2006
10/25/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006

10/11/2006)
203 REPLY Brief in support of Motion for Summary Judgment by Defendant CDN Logistics, Inc. (mb, ) (Entered: 10/12/2006)
204 RULE 56.1 Statement of Additional Undisputed Materials Facts Entitling it to Summary Judgment by CDN Logistics, Inc.(Exhibits) (mb, ) (Entered: 10/12/2006)
206 SEALED DOCUMENT. Plaintiffs−Intervenors' Opposition to Custom's Motion to Sever or to Order Separate Trials (RESTRICTED) (mb, ) (Entered: 10/13/2006)
205 MINUTE entry before Judge Harry D. Leinenweber :Custom's Motion to sever or to order separate trials 198 is denied. Mailed notice(wp, ) (Entered: 10/12/2006)
207 ATTORNEY Appearance for Defendant Custom Companies, Inc. by Karen Ann Kawashima Appearance of (Kawashima, Karen) (Entered: 10/20/2006)
208 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to strike To exclude Defendants' Human Resources Expert (Attachments: # 1 Exhibit Expert's report# 2 Exhibit Expert's deposition)(Mrizek, Richard) (Entered: 10/23/2006)
209 NOTICE of Motion by Richard John Mrizek for presentment of motion to strike 208 (Mrizek, Richard) (Entered: 10/23/2006)
210 ATTORNEY Appearance for Intervenor Parties Catherine Copello, Allison Kennedy by Bethany A Hilbert for Lawrence M. Cohen (Hilbert, Bethany) (Entered: 10/23/2006)
212 MINUTE entry before Judge Harry D. Leinenweber : Enter Memorandum Opinion and Order: Defendants' Motion for Summary is granted in part and denied in part. Defendants' Motion for Summary Judgment is granted with respect to: 1. The sexual harassment claims of Linda Dyson and Janene Sudis; 2. The retaliation claim of Corinne Miller; and 3. The sex discrimination claims of Allison Kennedy and Catherine Copello. The remainder of the Motion for Summary Judgment is denied. Mailed notice (mb, ) (Entered: 10/24/2006)
213 MEMORANDUM Opinion and Order Signed by Judge Harry D. Leinenweber on 10/23/2006.(mb, ) (Entered: 10/24/2006)
211 NOTICE of Motion by Richard John Mrizek for presentment of motion to strike 208 before Honorable Harry D. Leinenweber on 10/25/2006 at 09:30 AM. (Mrizek, Richard) (Entered: 10/24/2006)
214 RESPONSE by Custom Companies, Inc., Custom Executive Group, Inc. in Opposition to MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to strike To exclude Defendants' Human Resources Expert 208 (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Goroff, David) (Entered: 10/24/2006)
239 MINUTE entry before Judge Harry D. Leinenweber : All Motions in Limine to be filed by October 26, 2006. Responses to be filed by October 30, 2006. Settlement Conference set for 11/1/2006 at 02:00 PM. Mailed notice (wp, ) (Entered: 10/30/2006)
215 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for leave to file Appearance as Additional Counsel (Attachments: # 1 Exhibit Appearance)(Robbins, Michael) (Entered: 10/26/2006)
216 NOTICE of Motion by Michael David Robbins for presentment of motion for leave to file 215 before Honorable Harry D. Leinenweber on 10/31/2006 at 09:30 AM. (Robbins, Michael) (Entered: 10/26/2006)
217 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission in limine Fed. R. Evid. 412 (Mrizek, Richard) (Entered: 10/26/2006)
218 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission in limine to bar evidence of EEOC investigation (Mrizek, Richard) (Entered: 10/26/2006)
219 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission in limine to exclude evidence of non−victims (Mrizek, Richard) (Entered: 10/26/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 19 of 35

10/26/2006
10/26/2006 10/26/2006 10/26/2006
10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/26/2006 10/27/2006 10/27/2006 10/27/2006 10/27/2006 10/27/2006

220 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for reconsideration regarding memorandum opinion and order 213 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Goroff, David) (Entered: 10/26/2006)
221 NOTICE of Motion by David Barry Goroff for presentment of motion for reconsideration, motion for relief,, 220 before Honorable Harry D. Leinenweber on 11/1/2006 at 02:00 PM. (Goroff, David) (Entered: 10/26/2006)
222 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to Exclude Evidence Outside the Relevant Time Period (Goroff, David) (Entered: 10/26/2006)
223 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence Of Ownership Of The Crazy Horse Gentleman's Club (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Goroff, David) (Entered: 10/26/2006)
224 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to Exclude Evidence Outside the Relevant Time Period (Gianos, Diane) (Entered: 10/26/2006)
225 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence of Political Contributions (Goroff, David) (Entered: 10/26/2006)
226 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Allegations of Purported Kickbacks (Goroff, David) (Entered: 10/26/2006)
227 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Alleged Efforts to Gain Employment Through Head Hunter Mark Fischer (Goroff, David) (Entered: 10/26/2006)
228 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude any reference to non−company sponsored events including the Crazy Horse (Goroff, David) (Entered: 10/26/2006)
229 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine Motion to Exclude Emails (Gianos, Diane) (Entered: 10/26/2006)
240 MINUTE entry before Judge Harry D. Leinenweber : Enter Memorandum opinion and order: CDN Logistics motion for summary judgment 179 is granted. Mailed notice (gej, ) (Entered: 10/30/2006)
241 MEMORANDUM Opinion and Order Signed by Judge Harry D. Leinenweber on 10/26/2006.(gej, ) (Entered: 10/30/2006)
230 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude evidence of Perry Mandera's personal financial status (Goroff, David) (Entered: 10/27/2006)
231 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine Outside the Relevent Time Period (Gianos, Diane) (Entered: 10/27/2006)
232 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine Exclude Evidence of Damages (Goroff, David) (Entered: 10/27/2006)
233 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence of Customs Financial Status (Gianos, Diane) (Entered: 10/27/2006)
234 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude any reference to events concerning Nordic Hills Training (Goroff, David) (Entered: 10/27/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 20 of 35

10/27/2006 10/27/2006 10/27/2006 10/27/2006 10/30/2006 10/30/2006 10/30/2006 10/30/2006 10/30/2006 10/30/2006 10/30/2006 10/30/2006 10/30/2006
10/30/2006 10/30/2006

235 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude Michelle Cabrera Wilke as a witness (Goroff, David) (Entered: 10/27/2006)
236 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude any reference to pattern or practice and like terms (Goroff, David) (Entered: 10/27/2006)
237 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine Custom's Motion In Limine to Exclude Michelle Cabrera Wilke as a Witness (Gianos, Diane) (Entered: 10/27/2006)
238 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude evidence of other complaint of harassment and retaliation by non−class claimants (Goroff, David) (Entered: 10/27/2006)
242 RESPONSE to Custom's Motion in Limine to Exclude Evidence Relating to Damages (Hilbert, Bethany) (Entered: 10/30/2006)
243 RESPONSE to Custom's Motion in Limine to Exclude Evidence of Other Complaints of Harassment and Retaliation by Non−Class Claimants (Hilbert, Bethany) (Entered: 10/30/2006)
244 RESPONSE to Custom's Motion in Limine to Exclude Evidence of Custom's Financial Status (Hilbert, Bethany) (Entered: 10/30/2006)
245 RESPONSE to Custom's Motion in Limine to Exclude Allegations of Purported "Kickbacks" (Attachments: # 1 Affidavit Affidavit Attaching Exhibits# 2 Exhibit Exhibits A−B)(Hilbert, Bethany) (Entered: 10/30/2006)
246 RESPONSE to Custom's Motion in Limine to Exclude Evidence of Perry Mandera's Personal Financial Status (Attachments: # 1 Affidavit Attaching Exhibits# 2 Exhibit Exhibit A)(Hilbert, Bethany) (Entered: 10/30/2006)
247 RESPONSE to Custom's Motion in Limine to Exclude Alleged Attempts to Gain Employment Through Headhunter Mark Fischer (Attachments: # 1 Affidavit Attaching Exhibits# 2 Exhibit Exhibit A)(Hilbert, Bethany) (Entered: 10/30/2006)
248 RESPONSE to Custom's Motion in Limine to Exclude Evidence of Ownership of the Crazy Horse Gentleman's Club (Attachments: # 1 Affidavit Attaching Exhibits# 2 Exhibit Exhibits A−C)(Hilbert, Bethany) (Entered: 10/30/2006)
249 RESPONSE to Custom's Motion in Limine to Exclude Evidence of Political Contributions (Attachments: # 1 Affidavit Attaching Exhibits# 2 Exhibit Exhibit A# 3 Exhibit Exhibit B)(Hilbert, Bethany) (Entered: 10/30/2006)
250 RESPONSE to Custom's Motion in Limine to Exclude any Reference to Non−Company Sponsored Events, Including the Crazy Horse (Attachments: # 1 Affidavit Attaching Exhibits# 2 Exhibit Exhibits A−D)(Hilbert, Bethany) (Entered: 10/30/2006)
251 NOTICE by Catherine Copello, Allison Kennedy of Filing Responses in Opposition to Custom's Motions in Limine (Hilbert, Bethany) (Entered: 10/30/2006)
252 RESPONSE by U.S. Equal Employment Opportunity Commission in Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude any reference to events concerning Nordic Hills Training 234 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine Custom's Motion In Limine to Exclude Michelle Cabrera Wilke as a Witness 237 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude any reference to pattern or practice and like terms 236 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine Outside the Relevent Time Period 231 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude any reference to non−company sponsored events including the Crazy Horse 228 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence of Customs Financial Status 233 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 21 of 35

10/30/2006 10/30/2006 10/30/2006
10/31/2006 10/31/2006
10/31/2006 10/31/2006 11/01/2006 11/03/2006 11/03/2006 11/03/2006 11/03/2006

Exclude Evidence of Political Contributions 225 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Allegations of Purported Kickbacks 226 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence Of Ownership Of The Crazy Horse Gentleman's Club 223 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to Exclude Evidence Outside the Relevant Time Period 224 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. in limine Motion to Exclude Emails 229 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude Michelle Cabrera Wilke as a witness 235 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude evidence of other complaint of harassment and retaliation by non−class claimants 238 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine Exclude Evidence of Damages 232 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to Exclude Evidence Outside the Relevant Time Period 222 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine to exclude evidence of Perry Mandera's personal financial status 230 , MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Alleged Efforts to Gain Employment Through Head Hunter Mark Fischer 227 (Mrizek, Richard) (Entered: 10/30/2006)
253 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence Pursuant To Federal Rule Of Evidence 412 (Attachments: # 1 Exhibit A)(Goroff, David) (Entered: 10/30/2006)
254 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence Regarding The Existence Of Non−Victims (Goroff, David) (Entered: 10/30/2006)
255 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in limine To Exclude Evidence Regarding The EEOC's Investigation (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Goroff, David) (Entered: 10/30/2006)
256 CERTIFICATE of Service of Various Motions in Limine filed on October 26 and 27, 2006 by Diane E. Gianos on behalf of Custom Companies, Inc., Custom Executive Group, Inc. (Gianos, Diane) (Entered: 10/31/2006)
257 RESPONSE by U.S. Equal Employment Opportunity Commission in Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for reconsideration regarding memorandum opinion and order 213 220 (Mrizek, Richard) (Entered: 10/31/2006)
258 MINUTE entry before Judge Harry D. Leinenweber : Michael D. Robbins Motion for leave to file his appearance as additional counsel for plaintiff−intervenors, Catherine Copello and Allison Kennedy is granted. Mailed notice (mb, ) (Entered: 11/01/2006)
259 ATTORNEY Appearance for Intervenor Parties Catherine Copello, Allison Kennedy by Michael David Robbins (mb, ) (Entered: 11/01/2006)
271 SUBMITTED Pretrial Order by the parties (mb, ) (Entered: 11/14/2006)
260 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to strike the Personnel File of Catherine Copello from Defendants' Exhibit List (Attachments: # 1 Affidavit Copello Affidavit)(Hilbert, Bethany) (Entered: 11/03/2006)
261 NOTICE of Motion by Bethany A Hilbert for presentment of motion to strike 260 before Honorable Harry D. Leinenweber on 11/6/2006 at 10:00 AM. (Hilbert, Bethany) (Entered: 11/03/2006)
262 Custom's Proposed Voir Dire Questions by Custom Companies, Inc., Custom Executive Group, Inc. (Goroff, David) (Entered: 11/03/2006)
263 Custom's Objections to EEOC's Witness List by Custom Companies, Inc., Custom Executive Group, Inc. (Goroff, David) (Entered: 11/03/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 22 of 35

11/03/2006 11/03/2006 11/03/2006 11/06/2006
11/06/2006
11/07/2006 11/08/2006
11/08/2006 11/09/2006 11/09/2006 11/13/2006 11/14/2006 11/15/2006 11/16/2006 11/17/2006
11/17/2006 11/17/2006 11/17/2006 11/17/2006 11/17/2006 11/17/2006 12/01/2006

264 PROPOSED Voir Dire by Catherine Copello, Allison Kennedy (Hilbert, Bethany) (Entered: 11/03/2006)
265 Notice To Produce At Trial by Custom Companies, Inc., Custom Executive Group, Inc. (Goroff, David) (Entered: 11/03/2006)
266 Exhibit List Custom's Objections to EEOC's Exhibit List by Custom Companies, Inc., Custom Executive Group, Inc.. (Goroff, David) (Entered: 11/03/2006)
267 MINUTE entry before Judge Harry D. Leinenweber : Plaintiffs' Motions in Limine are granted in part and denied in part. Defendants' Motions in Limine are granted in part and denied in part. Defendants' Motion for reconsideration 220 is denied. Trial begins−Jury. Jury trial held and continued to 11/7/2006 at 10:00 AM. Mailed notice (wp, ) (Entered: 11/07/2006)
270 MINUTE entry before Judge Harry D. Leinenweber : Defendants Custom Companies, Inc. and Custom Executive Group, Inc.'s Motion for Reconsideration [220−1] is denied. Mailed notice (gej, ) (Entered: 11/09/2006)
268 MINUTE entry before Judge Harry D. Leinenweber : Jury trial held and continued to 11/8/2006 at 10:00 AM. Mailed notice (wp, ) (Entered: 11/07/2006)
269 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission in limine In Opposition to Defendants' Oral Motion to Bar Evidence of Offers of Settlement (Mrizek, Richard) (Entered: 11/08/2006)
273 MINUTE entry before Judge Harry D. Leinenweber : Jury trial held and continued to for 11/9/2006 at 09:00 AM. Mailed notice (wp, ) (Entered: 11/21/2006)
272 SEALED DOCUMENT (RESTRICTED) (mb, ) (Entered: 11/14/2006)
274 MINUTE entry before Judge Harry D. Leinenweber : Jury trial held and continued for 11/13/2006 at 10:00 AM. Mailed notice (wp, ) (Entered: 11/21/2006)
275 MINUTE entry before Judge Harry D. Leinenweber : Jury trial held and continued for 11/14/2006 at 10:00 AM. Mailed notice (wp, ) (Entered: 11/21/2006)
276 MINUTE entry before Judge Harry D. Leinenweber : Jury trial held for 11/15/2006 at 10:00 AM. Mailed notice (wp, ) (Entered: 11/21/2006)
277 MINUTE entry before Judge Harry D. Leinenweber : Jury trial held and continued for 11/16/2006 at 10:00 AM. Mailed notice (wp, ) (Entered: 11/21/2006)
278 MINUTE entry before Judge Harry D. Leinenweber : Jury trial held. Jury Deliberations begins. Mailed notice (wp, ) (Entered: 11/21/2006)
279 MINUTE entry before Judge Harry D. Leinenweber : Filed Verdict Form. Trial ends−jury. Plaintiff to submit motions as indicated in open court by December 1, 2006. Defendants' response to be filed by December 15, 2006. Plaintiff's reply to be filed by December 22, 2006. Mailed notice (mb, ) (Entered: 11/27/2006)
280 PROPOSED Jury Instructions (mb, ) (Entered: 11/27/2006)
281 OFFER of Proof of Testimony of Marie Holland by Defendants (mb, ) (Entered: 11/27/2006)
282 NOTICE of Filing by Custom Companies, Inc., Custom Executive Group, Inc. re offer of proof of testimony of Marie Holland 281 (mb, ) (Entered: 11/27/2006)
283 NOTICE of Filing by Custom Companies, Inc., Custom Executive Group, Inc. re Proposed Jury Instruction 280 (mb, ) (Entered: 11/27/2006)
284 JURY Instructions. (mb, ) (Entered: 11/30/2006)
285 JURY Verdict entered in favor of Catherine Copello and Allison Kennedy and against Defendants. (mb, ) (Entered: 11/30/2006)
286 MEMORANDUM by Custom Companies, Inc. Post−Trial Memorandum Concerning The Number Of Its Employees In The Relevant Time Periods And The Mandatory Caps on Each Plaintiff's Damages That Follow From This (Gianos, Diane) (Entered: 12/01/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 23 of 35

12/01/2006
12/01/2006 12/01/2006
12/01/2006
12/01/2006 12/01/2006 12/01/2006 12/01/2006
12/01/2006 12/01/2006 12/01/2006
12/01/2006 12/01/2006 12/01/2006

287 MOTION by Defendant Custom Companies, Inc. for summary judgment MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for summary judgment Or, In The Alternative, For Directed Verdict And/Or For Judgment As A Matter Of Law As To All Claims Directed At Custom Executive Group ("CEG") For Failure To Satisfy A Statutory Prerequisite (Attachments: # 1)(Gianos, Diane) (Entered: 12/01/2006)
288 MEMORANDUM by Custom Companies, Inc., Custom Executive Group, Inc. as to Why No Injunctive Relief Should Be Issued (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Goroff, David) (Entered: 12/01/2006)
289 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for summary judgment or, in the Alternative, for Directed Verdict and for Judgment as a Matter of Law to Deny Back and Front Pay to Kennedy, to Limit Back Pay to Copello and to Deny Front Pay to Copello (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Goroff, David) (Entered: 12/01/2006)
290 MOTION by Defendant Custom Companies, Inc. for directed verdict The Custom Companies Inc. and Custom Executive Group, Inc.'s Renewed Motion For Directed Verdict And/Or Judgment As A Matter Of Law To Limit Allison Kennedy And Catherine Copello To Nominal Compensatory Damages (Attachments: # 1 # 2 # 3)(Gianos, Diane) (Entered: 12/01/2006)
291 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for directed verdict (Renewed) and/or Judgment as a Matter of Law as to Fritkin's Retaliation Claim and/or to Limit Award of Attorney's Fees (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Goroff, David) (Entered: 12/01/2006)
292 MOTION by Plaintiff U.S. Equal Employment Opportunity CommissionFinding the Defendant's Employed More than Two−hundred Employees During Relevant Time Periods (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit F)(Mrizek, Richard) (Entered: 12/01/2006)
293 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission for permanent injunction (Attachments: # 1 Exhibit A − Proposed Order)(Mrizek, Richard) (Entered: 12/01/2006)
294 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for directed verdict and/or Judgment as a Matter of Law to Limit the Jury's Award of Punitive Damages as Excessive (Renewed) (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Goroff, David) (Entered: 12/01/2006)
295 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for attorney fees As Prevailing Party (Goroff, David) (Entered: 12/01/2006)
296 MEMORANDUM by Custom Companies, Inc., Custom Executive Group, Inc. in Opposition to Any Attorneys' Fees Being Granted to Counsel for Plaintiff's Intervenors (Goroff, David) (Entered: 12/01/2006)
297 MEMORANDUM by Catherine Copello, Allison Kennedy Plaintiffs−Intervenors Post−Trial Brief Regarding Back Pay and Front Pay Calculations (Attachments: # 1 Affidavit Trapp Affidavit# 2 Exhibit Exhibit A# 3 Exhibit Exhibit B# 4 Exhibit Exhibit C# 5 Exhibit Exhibit D# 6 Exhibit Exhibit E# 7 Exhibit Exhibit F# 8 Exhibit Exhibit G# 9 Exhibit Exhibit H# 10 Exhibit Exhibit H(1)# 11 Exhibit Exhibit I# 12 Exhibit Exhibit J# 13 Exhibit Exhibit K# 14 Affidavit Kennedy Affidavit)(Hilbert, Bethany) (Entered: 12/01/2006)
298 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for permanent injunction for Injunctive Relief (Attachments: # 1 Affidavit Trapp Affidavit# 2 Exhibit Exhibit A# 3 Exhibit Exhibit B)(Hilbert, Bethany) (Entered: 12/01/2006)
299 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for leave to file Brief in Excess of 15 Pages (Hilbert, Bethany) (Entered: 12/01/2006)
300 NOTICE by Catherine Copello, Allison Kennedy re MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for permanent injunction for Injunctive Relief 298 , memorandum,, 297 , MOTION by Intervenor Parties Catherine Copello, Allison

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 24 of 35

12/01/2006 12/05/2006 12/05/2006 12/07/2006 12/11/2006 12/15/2006
12/15/2006 12/15/2006
12/15/2006 12/15/2006
12/15/2006 12/15/2006 12/15/2006

Kennedy for leave to file Brief in Excess of 15 Pages 299 (Hilbert, Bethany) (Entered: 12/01/2006)
301 EXHIBITS 1, 2 and 3 to Post−Trial Memorandum by Defendants Custom Companies, Inc., Custom Executive Group, Inc.; Notice (mb, ) (Entered: 12/04/2006)
302 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to compel documentation regarding leased employees (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit)(Mrizek, Richard) (Entered: 12/05/2006)
303 NOTICE of Motion by Richard John Mrizek for presentment of motion to compel 302 before Honorable Harry D. Leinenweber on 12/7/2006 at 09:30 AM. (Mrizek, Richard) (Entered: 12/05/2006)
304 MINUTE entry before Judge Harry D. Leinenweber : Plaintiff EEOC's motion to compel 302 is granted. Mailed notice (wp, ) (Entered: 12/08/2006)
305 SEALED DOCUMENT. The Custom Companies, Inc. and Custom Executive Group, Inc.'s renewed motion for directed verdict and/or judgment as a matter of law to limit Allison Kennedy and Catherine Copello to nominal compensatory damages. (RESTRICTED) (mb, ) (Entered: 12/12/2006)
306 MEMORANDUM by Custom Companies, Inc., Custom Executive Group, Inc. in Opposition to for a Finding that Defendants Employed More Than 200 Employees During the Relevant Time Periods (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13)(Goroff, David) (Entered: 12/15/2006)
307 MEMORANDUM by Custom Companies, Inc., Custom Executive Group, Inc. in Opposition to EEOC's Plaintiffs−Intervenors' Motions for Injunctive Relief (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Goroff, David) (Entered: 12/15/2006)
308 RESPONSE by U.S. Equal Employment Opportunity Commissionin Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for directed verdict (Renewed) and/or Judgment as a Matter of Law as to Fritkin's Retaliation Claim and/or to Limit Award of Attorney's FeesMOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for directed verdict (Renewed) and/or Judgment as a Matter of Law as to Fritkin's Retaliation Claim and/or to Limit Award of Attorney's Fees 291 (Attachments: # 1 Exhibit Exhibit A)(Mrizek, Richard) (Entered: 12/15/2006)
309 RESPONSE by U.S. Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant Custom Companies, Inc. for summary judgment MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for summary judgment Or, In The Alternative, For Directed Verdict And/Or For Judgment As A Matter Of Law As To A 287 (Mrizek, Richard) (Entered: 12/15/2006)
310 RESPONSE by U.S. Equal Employment Opportunity Commissionin Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for directed verdict and/or Judgment as a Matter of Law to Limit the Jury's Award of Punitive Damages as Excessive (Renewed)MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for directed verdict and/or Judgment as a Matter of Law to Limit the Jury's Award of Punitive Damages as Excessive (Renewed) 294 (Mrizek, Richard) (Entered: 12/15/2006)
311 RESPONSE by U.S. Equal Employment Opportunity Commissionin Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for attorney fees As Prevailing Party 295 (Mrizek, Richard) (Entered: 12/15/2006)
312 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for leave to file An Oversized Memorandum (Goroff, David) (Entered: 12/15/2006)
313 Custom's NOTICE of Motion by David Barry Goroff for presentment of motion for leave to file 312 (Goroff, David) (Entered: 12/15/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 25 of 35

12/15/2006 12/15/2006 12/15/2006 12/15/2006 12/15/2006 12/15/2006 12/15/2006 12/15/2006 12/15/2006 12/15/2006
12/16/2006 12/16/2006
12/18/2006

314 MEMORANDUM by Custom Companies, Inc., Custom Executive Group, Inc. Opposition To Plaintiffs−Intervenors' Post−Trial Request For Back Pay And Front Pay (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Goroff, David) (Entered: 12/15/2006)
315 MEMORANDUM by Catherine Copello, Allison Kennedy in Response to Memorandum of Custom Companies, Inc. and Custom Executive Group, Inc. as to Why No Injunctive Relief Should be Issued (Hilbert, Bethany) (Entered: 12/15/2006)
316 MEMORANDUM by Catherine Copello, Allison Kennedy in Opposition to Motion by Custom Companies, Inc. and Custom Executive Group, Inc. For Attorney's Fees as Prevailing Party (Hilbert, Bethany) (Entered: 12/15/2006)
317 MEMORANDUM by Catherine Copello, Allison Kennedy in Opposition to Memorandum of Custom Companies, Inc. and Custom Executive Group, Inc. in Opposition to Any Attorneys' Fees Being Granted to Counsel for Plaintiffs−Intervenors (Hilbert, Bethany) (Entered: 12/15/2006)
318 MEMORANDUM by Catherine Copello, Allison Kennedy in Opposition to Custom's Post−Trial Motion for Summary Judgment or, In the Alternative, for Directed Verdict and for Judgment as a Matter of Law to Deny Back and Front Pay to Kennedy, to Limit Back Pay to Copello, and to Deny Front Pay to Copello (Hilbert, Bethany) (Entered: 12/15/2006)
319 MEMORANDUM by Catherine Copello, Allison Kennedy in Opposition to Defendants' Motion for Summary Judgment or In the Alternative for Directed Verdict And/Or Judgment As a matter of Law as to All Claims Directed to Custom Executive Group for Failure to Satisfy a Statutory Prerequisite (Hilbert, Bethany) (Entered: 12/15/2006)
320 MEMORANDUM by Catherine Copello, Allison Kennedy in Opposition to Defendants' Renewed Motion for Directed Verdict And/Or Judgment As a Matter of Law to Limit the Jury's Award of Punitive Damages as Excessive (Hilbert, Bethany) (Entered: 12/15/2006)
321 MEMORANDUM by Catherine Copello, Allison Kennedy in Opposition to Custom's Renewed Motion for Directed Verdict And/Or Judgment as a Matter of Law to Limit Allison Kennedy and Catherine Copello to Nominal Compensatory Damages (Hilbert, Bethany) (Entered: 12/15/2006)
322 MEMORANDUM by Catherine Copello, Allison Kennedy in Response to Custom's Post−Trial Memorandum Concerning the Number of Its Employees in the Relevant Time Periods and the Mandatory Caps on Each Plaintiff's Damages that Follow From This (Hilbert, Bethany) (Entered: 12/15/2006)
323 AFFIDAVIT of Clinton Trapp by Catherine Copello, Allison Kennedy regarding memorandum 316 , memorandum, 318 , memorandum, 321 , memorandum 320 , memorandum, 319 , memorandum 315 , memorandum, 317 , memorandum, 322 (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit M# 5 Exhibit Exhibit N# 6 Exhibit Exhibit O# 7 Errata Exhibit P# 8 Exhibit Exhibit Q# 9 Exhibit Exhibit R# 10 Exhibit Exhibit E(1)# 11 Exhibit Exhibit E(2))(Hilbert, Bethany) (Entered: 12/15/2006)
324 NOTICE by Catherine Copello, Allison Kennedy (Hilbert, Bethany) (Entered: 12/16/2006)
325 AFFIDAVIT of Clinton Trapp by Catherine Copello, Allison Kennedy regarding memorandum 316 , memorandum, 318 , memorandum, 321 , memorandum 320 , memorandum, 319 , memorandum 315 , memorandum, 317 , memorandum, 322 (Attachments: # 1 Exhibit F# 2 Exhibit G# 3 Exhibit H(1)# 4 Exhibit H(2)# 5 Exhibit I(1)# 6 Exhibit I(2)# 7 Exhibit J# 8 Exhibit K# 9 Exhibit L# 10 Exhibit D(1)# 11 Exhibit D(2))(Hilbert, Bethany) (Entered: 12/16/2006)
326 NOTICE of Motion by David Barry Goroff for presentment of motion for leave to file 312 before Honorable Harry D. Leinenweber on 12/21/2006 at 09:30 AM. (Goroff, David) (Entered: 12/18/2006)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 26 of 35

12/19/2006 12/19/2006 12/20/2006 12/22/2006 12/22/2006
12/22/2006 12/22/2006 12/22/2006 12/29/2006 12/29/2006 12/29/2006 12/29/2006
12/29/2006 01/03/2007 01/03/2007 01/03/2007

327 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission for sanctions Under Fed. R. Civ. P. 37 (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C)Associated Cases: 1:02−cv−03768, 1:03−cv−02293(Mrizek, Richard) (Entered: 12/19/2006)
328 NOTICE of Motion by Richard John Mrizek for presentment of motion for sanctions,,, 327 before Honorable Harry D. Leinenweber on 12/21/2006 at 09:30 AM. (Mrizek, Richard) (Entered: 12/19/2006)
329 MINUTE entry before Judge Harry D. Leinenweber :Plaintiff EEOC's Motion for Sanctions now noticed for 12/21/2006 is reset by the court for 1/4/2007 at 09:30 AM.Mailed notice (wp, ) (Entered: 12/20/2006)
330 REPLY by Intervenor Parties Catherine Copello, Allison Kennedy to motion for permanent injunction 298 Reply in Support of Motion for Injunctive Relief (Attachments: # 1 Affidavit Trapp Affidavit# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C)(Hilbert, Bethany) (Entered: 12/22/2006)
331 REPLY by Intervenor Parties Catherine Copello, Allison Kennedy to motion for miscellaneous relief, 292 Reply in Support of Plaintiffs−Intervenors Motion for a Finding that Defendants Employed More than 200 Employees During the Relevant Time Periods (Attachments: # 1 Affidavit Trapp Affidavit# 2 Exhibit A# 3 Exhibit B)(Hilbert, Bethany) (Entered: 12/22/2006)
332 NOTICE by Catherine Copello, Allison Kennedy re reply, 330 , reply, 331 (Hilbert, Bethany) (Entered: 12/22/2006)
333 REPLY by Plaintiff U.S. Equal Employment Opportunity Commission in Support of Its Motion that Defendants Employed over 200 Employees (Attachments: # 1 Exhibit Exhibit A)(Mrizek, Richard) (Entered: 12/22/2006)
334 REPLY by Plaintiff U.S. Equal Employment Opportunity Commission to motion for permanent injunction 293 (Mrizek, Richard) (Entered: 12/22/2006)
335 MEMORANDMUM by Custom Companies, Inc., Custom Executive Group, Inc. in Opposition to motion for sanctions,,, 327 Under Fed. R. Civ. P. 37(b)(2) (Attachments: # 1 Exhibit 1)(Goroff, David) (Entered: 12/29/2006)
336 NOTICE of Motion by David Barry Goroff for presentment of before Honorable Harry D. Leinenweber on 1/4/2007 at 09:30 AM. (Goroff, David) (Entered: 12/29/2006)
337 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for leave to file Surreplies As To Plaintiffs' Newly−Raised Arguments (Goroff, David) (Entered: 12/29/2006)
338 SUR−REPLY by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to motion for leave to file 337 In Opposition To Plaintiff EEOC and Plaintiffs−Intervenors' Motion For A Finding That Defendants Employed More Than 200 Employees During The Relevant Time Periods (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Goroff, David) (Entered: 12/29/2006)
339 SUR−REPLY by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to motion for leave to file 337 To EEOC's Plaintiffs−Intervenors' Motions For Injunctive Relief (Attachments: # 1 Exhibit 1)(Goroff, David) (Entered: 12/29/2006)
340 REPLY by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in Support of Their Renewed Motion for Directed Verdict and/or Judgment as a Matter of Law as to Fritkin's Retaliation Claim and/or to Limit Award of Attorney's Fees (Goroff, David) (Entered: 01/03/2007)
341 REPLY by Defendants Custom Companies, Inc., Custom Executive Group, Inc. In Support of Custom and CEG's Renewed Motion for Directed Verdict and/or Judgment as a Matter of Law to Limit Allison Kennedy and Catherine Copello to Nominal Compensatory Damages (Goroff, David) (Entered: 01/03/2007)
342 REPLY by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in Support of Custom and CEG's Renewed Motion for Directed Verdict and/or Judgment as a Matter of Law to Limit the Jury's Award of Punitive Damages as Excessive (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Goroff, David) (Entered:

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 27 of 35

01/04/2007 01/26/2007 01/26/2007 01/26/2007 01/29/2007 03/05/2007
03/08/2007
03/08/2007 03/08/2007 03/13/2007 03/13/2007 03/16/2007 03/20/2007

01/03/2007)
343 MINUTE entry before Judge Harry D. Leinenweber :Plaintiffs' Motion for sanctions 327 is taken under advisement. Defendants' Motion for leave to file surreplies 337 is granted. Mailed notice (wp, ) (Entered: 01/09/2007)
344 RESPONSE by Intervenor Parties Catherine Copello, Allison Kennedy Plaintiffs'−Intervenors' First Supplemental Response in Support of Request for Award of Back Pay and Front Pay (Attachments: # 1 Affidavit Affidavit of Clinton K. Trapp# 2 Affidavit A# 3 Affidavit B# 4 Affidavit C# 5 Affidavit D# 6 Affidavit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H)(Hilbert, Bethany) (Entered: 01/26/2007)
345 NOTICE by Catherine Copello, Allison Kennedy re Response, 344 Notice of Filing and Certificate of Service (Hilbert, Bethany) (Entered: 01/26/2007)
346 TRANSCRIPT of proceedings for the following dates: 11/6/2006 (two volumes), 11/7/2006 (two volumes), 11/8/2006 (two volumes), 11/9/2006 (one volume), 11/13/2006 (two volumes), 11/14/2006 (two volumes), 11/15/2006 (two volumes), 11/16/2006 (two volumes, 11/17/2006 (one volume); Before the Honorable Harry D. Leinenweber. (Volumes 1−16) (mb, ) (Entered: 01/29/2007)
347 CERTIFICATE of Service by Defendant Custom Companies, Inc. (Gianos, Diane) (Entered: 01/29/2007)
353 MINUTE entry before Judge Rebecca R. Pallmeyer : Emergency motion of Defendants, The Custom Companies, Inc. and Custom Executive Group, Inc., tocontinue deadline for filing post−judgment motions 351 denied, but the court will extend the date for filing any memorandum in support of Defendants' post trial motions; such memorandum may be filed 14days after the motion itself is filed. Mailed notice (ar, ) (Entered: 03/16/2007)
348 MINUTE entry before Judge Harry D. Leinenweber : The following motions are granted: Plaintiffs' Motion for a Finding that Defendants Employed Two Hundred Employees (in part); Defendants' Motion Concerning the Number of Defendants' Employees (in part); Plaintiff−Intervenors' Motion for Back and Front Pay (in part); EEOC's Motion for Injunctive Relief (in part); Plaintiff−Intervenors' Motion for Injunctive Relief (in part); Defendants' Motion to Reduce Fritkin's Attorney's Fees Award. The following motions are denied: Defendants' Motion for Directed Verdict in Favor of CEG; Defendants' Motion to Reduce Compensatory Damages to Nominal Damages; Defendants' Motion to Reduce Punitive Damages as Excessive; Defendants' Motion to Deny Back and Front Pay; Defendants' Motion Against Granting an Injunction; Defendants' Motion for Attorney's Fees; and Defendants' Motion Against Awarding Fees to Plaintiff−Intervenors. The Court enters Judgment against Defendants Custom Companies Inc. and Custom Executive Group in the amount of $1,135,168.23. Civil case terminated. Mailed notice (wp, ) (Entered: 03/08/2007)
349 MEMORANDUM Opinion and Order Signed by Judge Harry D. Leinenweber on 3/8/2007:Mailed notice(wp, ) (Entered: 03/08/2007)
350 ENTERED JUDGMENT on 3/8/2007:Mailed notice(wp, ) (Entered: 03/08/2007)
351 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to continue / Emergency Motion of Defendants the Custom Companies, Inc. and Custom Executive Group, Inc. to Continue Deadline for Filing Post−Judgment Motions (Goroff, David) (Entered: 03/13/2007)
352 NOTICE of Motion by David Barry Goroff for presentment of motion to continue, 351 before Honorable Rebecca R. Pallmeyer on 3/15/2007 at 08:45 AM. (Goroff, David) (Entered: 03/13/2007)
354 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for new trial And To Modify And/Or Dissolve Injunction, Post Judgment Motions Of Custom Companies, Inc. and Custom Executive Group, Inc. For Reconsideration, Remittitur, To Alter And Amend Judgment, Judgment As A Matter Of Law, Judgment Notwithstanding The Verdict (Goroff, David) (Entered: 03/16/2007)
355 ATTORNEY Appearance for Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. by Diane E. Gianos (David B. Goroff)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 28 of 35

03/22/2007 03/22/2007 03/27/2007
03/27/2007 03/29/2007
04/05/2007 04/19/2007 04/19/2007
04/19/2007 04/19/2007 04/19/2007
04/25/2007

(Attachments: # 1)(Gianos, Diane) (Entered: 03/20/2007)
356 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment Prejudgment and Postjudgment Interest (Attachments: # 1 Exhibit Copello's Prejudgment Interest# 2 Exhibit Kennedy's Prejudgment Interst Calcualtion# 3 Exhibit Copello's Postjudgment Interest Calculation# 4 Exhibit Kennedy's Postjudgment Interest Calculation)(Hilbert, Bethany) (Entered: 03/22/2007)
357 Plaintiffs'−Intervenors' NOTICE of Motion by Bethany A Hilbert for presentment of motion to alter judgment, 356 before Honorable Harry D. Leinenweber on 3/27/2007 at 09:30 AM. (Hilbert, Bethany) (Entered: 03/22/2007)
359 MINUTE entry before Judge Harry D. Leinenweber :Enter Agreed Order Setting Briefing Schedule. As to Defendants' Post−Judgment Motions: Defendants' memorandum in support to be filed on 3/29/2007. Plaintiffs response to be filed by 4/19/2007. Defendants' reply brief to be filed by 5/3/2007. As to Plaintiffs−Intervenors' Rule 59(e) Motion to Alter or Amend Judgment to include Pre−Judgment and Post−Judgment Interest: Defendants' reponse to be filed by 4/19/2007. Plaintiffs−Intervenors reply brief to be filed by 5/3/2007.Mailed notice (gej, ) (Entered: 03/30/2007)
360 AGREED ORDER Signed by Judge Harry D. Leinenweber on 3/27/2007.(gej, ) (Entered: 03/30/2007)
358 MEMORANDUM by Defendants Custom Companies, Inc., Custom Executive Group, Inc. in support of motion for reconsideration regarding motion for new trial, 354 And To Modify and/or Dissolve Injunction (Attachments: # 1 Exhibit 1 through Exhibit 8# 2 Exhibit 9 through Exhibit 15# 3 Exhibit 16# 4 Exhibit 17 through Exhibit 22# 5 Exhibit 23# 6 Exhibit 24 Part 1# 7 Exhibit 24 Part 2# 8 Exhibit 24 Part 3# 9 Exhibit 25 through Exhibit 35# 10 Exhibit 36 through Exhibit 40)(Goroff, David) (Entered: 03/29/2007)
361 BILL of Costs by U.S. Equal Employment Opportunity Commission (Attachments: # 1 Exhibit Itemization in support of Bill of Costs)(Mrizek, Richard) (Entered: 04/05/2007)
362 RESPONSE by Defendants Custom Companies, Inc., Custom Executive Group, Inc. To Plaintiffs−Intervenors' Motion For Prejudgment And Postjudgment Interest (Goroff, David) (Entered: 04/19/2007)
363 RESPONSE by Catherine Copello, Allison Kennedyin Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for new trial And To Modify And/Or Dissolve Injunction, Post Judgment Motions Of Custom Companies, Inc. and Custom Executive Group, Inc. For Reconsideration, Remittitur, To Alt 354 (Attachments: # 1 Affidavit # 2 Exhibit A(1)# 3 Exhibit A(2)# 4 Exhibit A(3)# 5 Exhibit A(4)# 6 Exhibit A(5)# 7 Exhibit A(6)# 8 Exhibit A(7)# 9 Exhibit A(8)# 10 Exhibit A(9)# 11 Exhibit A(10)# 12 Exhibit A(11)# 13 Exhibit A(12)# 14 Exhibit A(13)# 15 Exhibit A(14)# 16 Exhibit A(15)# 17 Exhibit B# 18 Exhibit C# 19 Exhibit D# 20 Exhibit E)(Hilbert, Bethany) (Entered: 04/19/2007)
364 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for leave to file Brief in Excess of 15 Pages (Hilbert, Bethany) (Entered: 04/19/2007)
365 NOTICE by Catherine Copello, Allison Kennedy re MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for leave to file Brief in Excess of 15 Pages 364 , response in opposition to motion,, 363 (Hilbert, Bethany) (Entered: 04/19/2007)
366 RESPONSE by U.S. Equal Employment Opportunity Commissionin Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for new trial And To Modify And/Or Dissolve Injunction, Post Judgment Motions Of Custom Companies, Inc. and Custom Executive Group, Inc. For Reconsideration, Remittitur, To Alt 354 (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Mrizek, Richard) (Entered: 04/19/2007)
367 Custom's Emergency NOTICE of Motion by David Barry Goroff for presentment of before Honorable Harry D. Leinenweber on 4/26/2007 at 09:30 AM. (Goroff, David) (Entered: 04/25/2007)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 29 of 35

04/25/2007
04/25/2007
04/25/2007 04/25/2007 04/26/2007
04/26/2007 04/26/2007 05/03/2007
05/24/2007
05/24/2007 05/24/2007 05/24/2007 05/31/2007 05/31/2007 06/05/2007 06/21/2007

368 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to quash Plaintiffs' Citation To Discover Assets, Attempts To Enforce Turn−Over Order, And Other Efforts To Execute On Non−Final Judgment And To Postpone Motions For Attorney's Fees (Attachments: # 1 Exhibit A)(Goroff, David) (Entered: 04/25/2007)
369 RESPONSE by Catherine Copello, Allison Kennedyin Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to quash Plaintiffs' Citation To Discover Assets, Attempts To Enforce Turn−Over Order, And Other Efforts To Execute On Non−Final Judgment And To Postpone Motions For Attor 368 (Attachments: # 1 Affidavit # 2 Exhibit A# 3 Exhibit B)(Hilbert, Bethany) (Entered: 04/25/2007)
370 NOTICE by Catherine Copello, Allison Kennedy re response in opposition to motion, 369 (Hilbert, Bethany) (Entered: 04/25/2007)
373 CITATION to Discover Assets one original and one copy issued as to Perry Mandera. (hp, ) (Entered: 04/26/2007)
371 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to quash Plaintiffs' Citation to Discover Assets, Attempts to Enforce Turn−Over Order, and Other Efforts to Execute On Non−Final Judgment and to Postpone Motions for Attorney's Fees (Attachments: # 1 Exhibit A)(Goroff, David) (Entered: 04/26/2007)
372 Custom's Emergency NOTICE of Motion by David Barry Goroff for presentment of motion to quash, 371 before Honorable Harry D. Leinenweber on 4/26/2007 at 09:30 AM. (Goroff, David) (Entered: 04/26/2007)
375 MINUTE entry before Judge Harry D. Leinenweber :Customs Motion to quash 368 371 is denied. The oral motion to stay is denied. The issue of attorney fees is stayed.Mailed notice (wp, ) (Entered: 05/04/2007)
374 REPLY by Defendants Custom Companies, Inc., Custom Executive Group, Inc. Memorandum in Support Of Their Motion For Reconsideration, Remittitur, To Alter And Amend Judgment, Judgment As A Matter Of Law, Judgment Notwithstanding The Verdict, New Trial And To Modify And/Or Dissolve Injunction (Attachments: # 1 Exhibit A# 2 Exhibit B throught Exhibit F# 3 Exhibit G)(Goroff, David) (Entered: 05/03/2007)
376 MINUTE entry before Judge Harry D. Leinenweber :Before the Court is Plaintiff−Intervenors' motion for pre− and post−judgment interest (356). The Plaintiff−Intervenors are ordered to file their reply, if any, by 6/5/2007.Mailed notice (wp, ) (Entered: 05/24/2007)
377 REPLY by Intervenor Parties Catherine Copello, Allison Kennedy in Support of Motion for Pre and Post−Judgment Interest (Hilbert, Bethany) (Entered: 05/24/2007)
378 NOTICE by Catherine Copello, Allison Kennedy re reply 377 in Support of Motion for Pre and Post−Judgment Interest (Hilbert, Bethany) (Entered: 05/24/2007)
379 TRANSCRIPT of proceedings for the following dates: 4/26/2007; Before the Honorable Harry D. Leinenweber. (Document not scanned) (td, ) (Entered: 05/29/2007)
380 PETITION by Catherine Copello, Allison Kennedy To Show Cause (Attachments: # 1 Exhibit)(Hilbert, Bethany) (Entered: 05/31/2007)
381 NOTICE of Motion by Bethany A Hilbert for presentment of before Honorable Harry D. Leinenweber on 6/5/2007 at 09:30 AM. (Hilbert, Bethany) (Entered: 05/31/2007)
382 Appearance of Thomas Mikrut by Custom Companies, Inc., Custom Executive Group, Inc. (Gianos, Diane) (Entered: 06/05/2007)
383 MINUTE entry before Judge Harry D. Leinenweber :ENTER MEMORANDUM OPINION AND ORDER: The Court Grants in Part and Denies in Part Defendants' Motion for Reconsideration (354]. The Court also Grants in Part and Denies in Part Plaintiff−Intervenors' Motion for Pre− and Post−Judgment Interest 356 . Mailed notice (wp, ) (Entered: 06/21/2007)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 30 of 35

06/21/2007 06/21/2007 06/21/2007 06/21/2007 06/26/2007
07/03/2007 07/03/2007 07/20/2007 07/23/2007 07/24/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 08/01/2007 08/01/2007 08/01/2007 08/02/2007 08/02/2007

384 MEMORANDUM Opinion and Order Signed by Judge Harry D. Leinenweber on 6/21/2007:Mailed notice(wp, ) (Entered: 06/21/2007)
385 PETITION by Catherine Copello, Allison Kennedy to Show Cause (Attachments: # 1 Exhibit A−E)(Hilbert, Bethany) (Entered: 06/21/2007)
386 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for attorney fees to Lift Stay on Issue of Attorneys' Fees (Hilbert, Bethany) (Entered: 06/21/2007)
387 NOTICE of Motion by Bethany A Hilbert for presentment of motion for attorney fees 386 before Honorable Harry D. Leinenweber on 6/26/2007 at 09:30 AM. (Hilbert, Bethany) (Entered: 06/21/2007)
388 MINUTE entry before Judge Harry D. Leinenweber :Plaintiffs−Intervenors' Motion to lift stay on issue of attorneys' fees 386 is granted. Plaintiffs−Intervenors Petition to Show Cause is withdrawn. Defendants to respond in accordance with the local rules. Defendant granted leave to file additional appearance. Mailed notice (wp, ) (Entered: 06/28/2007)
389 ATTORNEY Appearance for Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. by Michael T. Trucco (Trucco, Michael) (Entered: 07/03/2007)
390 ATTORNEY Appearance for Defendants Custom Companies, Inc., Custom Executive Group, Inc., Custom Executive Group, Inc. by Stephen Matthew Libman (Libman, Stephen) (Entered: 07/03/2007)
391 NOTICE of appeal by Custom Companies, Inc., Custom Executive Group, Inc. regarding orders 213 , 348 , 384 , 349 , 350 , 212 , 383 ; Filing fee $455.00 paid; Receipt number 1114722 (cdh, ) (Entered: 07/23/2007)
392 TRANSMITTED to the 7th Circuit the short record on notice of appeal 391 . Notified counsel (cdh, ) (Entered: 07/23/2007)
393 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 391 ; USCA Case No. 07−2740. (smm) (Entered: 07/26/2007)
394 TRANSCRIPT of Proceedings − Jury Trial before Judge Harry D. Leinenweber dated 11/6/06 thru 11/17/06 (Volumes 17). (gcy, ) (Entered: 07/31/2007)
395 SEVENTH CIRCUIT transcript information sheet, (Document not scanned). (gcy, ) (Entered: 07/31/2007)
396 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to stay Injunctive Relief Pending Appeal (Goroff, David) (Entered: 07/31/2007)
397 NOTICE of Motion by David Barry Goroff for presentment of motion to stay 396 before Honorable Harry D. Leinenweber on 8/22/2007 at 09:30 AM. (Goroff, David) (Entered: 07/31/2007)
398 MEMORANDUM by Custom Companies, Inc., Custom Executive Group, Inc. in support of motion to stay 396 All Forms of Injunctive Relief Pending Appeal (Goroff, David) (Entered: 07/31/2007)
399 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for extension of time Agreed Motion to Extend Due Dates for Attorneys' Fees Petition (Denis, Martin) (Entered: 08/01/2007)
400 NOTICE of Motion by Martin K. Denis for presentment of extension of time 399 before Honorable Charles R. Norgle Sr. on 8/3/2007 at 09:30 AM. (Denis, Martin) (Entered: 08/01/2007)
401 MINUTE entry before Judge Charles R. Norgle Sr.:Agreed Motion to Extend Due Date for Attorneys' Fees Petition 399 is granted.Telephoned/mailed notice (ewf, ) (Entered: 08/01/2007)
402 LETTER from Diane E. Gianos dated 8/2/2007. (gej, ) (Entered: 08/03/2007)
403 JOINT TRIAL EXHIBITS by Plaintiff and Defendants (1 Box containing 4 Binders). (Document not scanned)(gej, ) (Entered: 08/03/2007)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 31 of 35

08/13/2007 08/13/2007 08/14/2007 08/17/2007 08/21/2007 08/21/2007 08/22/2007
08/22/2007 08/28/2007 09/05/2007 09/05/2007
09/05/2007 09/05/2007 09/05/2007 09/10/2007 09/10/2007 09/18/2007
10/05/2007 10/05/2007

404 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 391 (USCA no. 07−2740) consisting of 16 volumes of pleadings, 17 vault envelopes, 2 loose documents, 7 exhibits and 22 transcripts. (cdh, ) (Entered: 08/13/2007)
406 USCA RECEIVED the record regarding notice of appeal 391 (hp, ) (Entered: 08/15/2007)
405 MINUTE entry before Judge Harry D. Leinenweber : Custom's Motion to Stay Injunctive Relief of Pending Appeal now noticed for 8/22/2007 is reset for 8/28/2007 at 09:30 AM.Mailed notice (wp, ) (Entered: 08/14/2007)
407 NOTICE of appeal by U.S. Equal Employment Opportunity Commission regarding orders 213 , 348 , 384 , 349 , 350 , 212 , 383 ; (USA) (dj, ) (Entered: 08/21/2007)
408 TRANSMITTED to the 7th Circuit the short record on notice of appeal 407 . Notified counsel (dj, ) (Entered: 08/21/2007)
411 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 407 ; USCA Case No. 07−2965. (vcf, ) (Entered: 08/23/2007)
409 RESPONSE by Catherine Copello, Allison Kennedyin Opposition to MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to stay Injunctive Relief Pending Appeal 396 (Attachments: # 1 Affidavit Affidavit of Clinton Kenneth Trapp)(Denis, Martin) (Entered: 08/22/2007)
410 NOTICE by Catherine Copello, Allison Kennedy re response in opposition to motion, 409 to stay injunction pending appeal (Denis, Martin) (Entered: 08/22/2007)
412 MINUTE entry before Judge Harry D. Leinenweber :Custom's Motion to stay 396 is granted in part and denied in part. Mailed notice (wp, ) (Entered: 09/04/2007)
413 PETITION by Catherine Copello, Allison Kennedy Plaintiffs'−Intervenors' Petition for Attorneys' Fees (Attachments: # 1 Affidavit Affidavit of Clinton Trapp# 2 Exhibit Ex. A# 3 Exhibit Ex. B# 4 Exhibit Ex. C)(Denis, Martin) (Entered: 09/05/2007)
414 Plaintiffs'−Intervenors' Memorandum In Support of Their Petition for Attorneys' Fees by Catherine Copello, Allison Kennedy (Attachments: # 1 Affidavit Affidavit of Clinton Trapp# 2 Exhibit Ex. A# 3 Exhibit Ex. A(2)# 4 Exhibit Ex. A(3)# 5 Exhibit Ex. B# 6 Exhibit Ex. C# 7 Exhibit Ex. D# 8 Exhibit Ex. E# 9 Exhibit Ex. F# 10 Exhibit Ex. G# 11 Exhibit Ex. H# 12 Exhibit Ex. I# 13 Exhibit Ex. K# 14 Exhibit Ex. J# 15 Exhibit Ex. L# 16 Exhibit Ex. M# 17 Exhibit Ex. N)(Denis, Martin) (Entered: 09/05/2007)
415 NOTICE by Catherine Copello, Allison Kennedy re other,, 414 , petition, 413 (Denis, Martin) (Entered: 09/05/2007)
416 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy for leave to file (Denis, Martin) (Entered: 09/05/2007)
417 NOTICE of Motion by Martin K. Denis for presentment of motion for leave to file 416 before Honorable Harry D. Leinenweber on 9/18/2007 at 09:30 AM. (Denis, Martin) (Entered: 09/05/2007)
418 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 407 , 391 (USCA no. 07−2965 & 07−2740) consisting of one volume of pleadings. (cdh, ) (Entered: 09/10/2007)
419 USCA RECEIVED on 9/10/07 the long record regarding notice of appeal 407 , notice of appeal 391 (cdh, ) (Entered: 09/11/2007)
420 MINUTE entry before Judge Harry D. Leinenweber :The Agreed Motion for leave to file memorandum to attorney's fee petition in excess of fifteen pages 364 is granted. Defendants' response to be filed by 10/1/2007. Plaintiff's reply brief to be filed by 10/8/2007.Mailed notice (wp, ) (Entered: 09/19/2007)
421 JOINT MOTION by respondents The Custom Companies, Inc. and The Custom Executive Group, Inc. to extend time to respond(cdy, ) (Entered: 10/09/2007)
422 NOTICE of Motion by Stephen Matthew Libman for presentment of joint motion to extend time 421 before Honorable Harry D. Leinenweber on 10/11/2007 at 09:30 a.m.

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 32 of 35

10/11/2007
10/12/2007 10/15/2007 11/02/2007 11/02/2007 11/02/2007 11/06/2007 12/17/2007 12/17/2007 12/18/2007 12/20/2007
12/20/2007 01/03/2008
01/03/2008

(cdy, ) (Entered: 10/09/2007)
423 MINUTE entry before Judge Harry D. Leinenweber :The Joint Motion for extension of time until 10/15/2007 for The Custom Companies, Inc. and The Custom Executive Group, Inc. to respond to Petitioner's Petition for Attorney Fees 421 is granted.Mailed notice (wp, ) (Entered: 10/15/2007)
424 TRANSCRIPT of proceedings for the following dates: 8/28/2007, 9/18/2007; Before the Honorable Harry D. Leinenweber.(424−1 through 424−2)( Document not imaged) (vcf, ) (Entered: 10/15/2007)
425 TRANSMITTED to the USCA for the 7th Circuit supplemental record on appeal 407 (USCA no. 07−2740, 07−2965) consisting of two volumes of transcripts. (vcf, ) (Entered: 10/15/2007)
426 JOINT MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. to extend time to respond. (kw, ) (Entered: 11/02/2007)
427 NOTICE of Motion by Stephen Matthew Libman to extend time 426 before Honorable Harry D. Leinenweber on 11/6/2007 at 09:30 AM. (kw, ) (Entered: 11/02/2007)
428 CERTIFICATE OF SERVICE by Custom Companies, Inc., Custom Executive Group, Inc. regarding notice of motion 427 , and motion 426 . (kw, ) (Entered: 11/02/2007)
429 MINUTE entry before Judge Harry D. Leinenweber :The Joint Motion to extend the time for Respondents to respond to Petitioner's Petition for Attorney Fees until 11/12/2007 426 is granted. Mailed notice (wp, ) (Entered: 11/08/2007)
430 MOTION by Plaintiff U.S. Equal Employment Opportunity Commission to alter judgment JOINT MOTION OF ALL PARTIES FOR RELIEF FROM JUDGMENT (Mrizek, Richard) (Entered: 12/17/2007)
431 NOTICE of Motion by Richard John Mrizek for presentment of motion to alter judgment 430 before Honorable Harry D. Leinenweber on 12/19/2007 at 09:30 AM. (Mrizek, Richard) (Entered: 12/17/2007)
432 MINUTE entry before Judge Harry D. Leinenweber :The Joint Motion scheduled for 12/19/2007 is stricken.Mailed notice (wp, ) (Entered: 12/18/2007)
433 MINUTE entry before Judge Harry D. Leinenweber : The Court grants the joint motion for relief from judgment under Fed.R.Civ.P 60(b)(6) and enters the order of certification pursuant to 7th Circuit Rule 57 and request the United States Court of Appeals for the Seventh Circuit to remand the case for the purpose of entering a revised judgment order vacating the judgment entered on March 8, 2007, as modified by the order of 6/21/2007, and entering a modified judgment in accord with the terms of the parties' proposed settlement agreement. Mailed notice (lcw, ) (Entered: 12/27/2007)
434 ORDER of Certification Pursuant to 7th Cir.R.57. Signed by Judge Harry D. Leinenweber on 12/20/2007.(lcw, ) (Entered: 12/27/2007)
435 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 07−2740, 07−2965 consisting of 17 vols of pleadings, 2 vols of loose pleadings, 24 vols of transcripts, 7 vols of exhibits. 17 in camera material to be returned at a later date. (vmj, ) (Entered: 01/07/2008)
436 CERTIFIED copy of order dated 12−27−07 from the USCA − 7th Circuit regarding notice of appeal 407 , notice of appeal 391 ; Appellate case no. : 07−2740, 07−2756 and 07−2965: Upon consideration of the joint motion pursuant to Circuit Rule 57 to remand for modification of judgment and to expedite issuance of the mandate, filed on 12/21/07, by counsel for the parties. It is ordered that the motion is granted. In light of the district court's indication of its willingness to grant a motion pursuant to FRCP 60(b), this appeal is remanded to the district court for further proceedings. The parties are reminded that a new notice of appeal must be filed by any party dissatisfied with the judgment as modified. See Cir. R. 57. The mandate in this appeal shall issue forthwith. (vmj, ) (Entered: 01/07/2008)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 33 of 35

01/18/2008 01/18/2008 01/24/2008 02/01/2008 02/01/2008 02/04/2008
02/04/2008 02/12/2008 02/12/2008 02/12/2008 02/12/2008 02/13/2008 02/13/2008 02/28/2008
03/04/2008

437 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment Relief from Judgment (Attachments: # 1 Exhibit A)(Denis, Martin) (Entered: 01/18/2008)
438 NOTICE of Motion by Martin K. Denis for presentment of motion to alter judgment 437 before Honorable Harry D. Leinenweber on 1/24/2008 at 09:30 AM. (Denis, Martin) (Entered: 01/18/2008)
441 MINUTE entry before Judge Harry D. Leinenweber :Intervenors' Motion for Relief from Judgment Under Rule 60(b)(6) 437 is granted. Modified judgment order to be submitted. Mailed notice (rp, ) (Entered: 02/04/2008)
439 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment to enter attached order modifying injunction (Attachments: # 1 Exhibit)(Denis, Martin) (Entered: 02/01/2008)
440 NOTICE of Motion by Martin K. Denis for presentment of motion to alter judgment 439 before Honorable Harry D. Leinenweber on 2/5/2008 at 09:30 AM. (Denis, Martin) (Entered: 02/01/2008)
442 RESPONSE by Custom Companies, Inc., Custom Executive Group, Inc.in Opposition to MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment to enter attached order modifying injunction 439 Motion to Enter Order Modifying Injunction or, in the Alternative, for Immediate Enforcement of Settlement Agreement, Sanctions and Forfeiture of Defendants' Bond (Goroff, David) (Entered: 02/04/2008)
443 NOTICE by Custom Companies, Inc., Custom Executive Group, Inc. re response in opposition to motion, 442 To Enter Order Modifying Injunction Or, In The Alternative, For Immediate Enforcement Of Settlement Agreement, Sanctions And Forfeiture Of Defendants' Bond (Goroff, David) (Entered: 02/04/2008)
444 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment Modifying Injunction (Attachments: # 1 Exhibit)(Denis, Martin) (Entered: 02/12/2008)
445 NOTICE of Motion by Martin K. Denis for presentment of motion to alter judgment 444 before Honorable Harry D. Leinenweber on 2/14/2008 at 09:30 AM. (Denis, Martin) (Entered: 02/12/2008)
446 MOTION by Defendants Custom Companies, Inc., Custom Executive Group, Inc. for order Entry Of Final Settlement Order (Attachments: # 1 Exhibit A# 2 Exhibit B)(Goroff, David) (Entered: 02/12/2008)
447 NOTICE of Motion by David Barry Goroff for presentment of motion for order 446 before Honorable Harry D. Leinenweber on 2/14/2008 at 09:30 AM. (Goroff, David) (Entered: 02/12/2008)
448 MINUTE entry before Judge Harry D. Leinenweber : Defendants Motion for Entry of Final Settlement Order 446 and Intervenors' Motion to Alter Judgment 444 now noticed for 2/14/2008 is reset for 2/19/2008 at 9:30 a.m.Mailed notice (wp, ) (Entered: 02/13/2008)
449 EXHIBIT by Intervenor Parties Catherine Copello, Allison Kennedy D regarding MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment Modifying Injunction 444 (Attachments: # 1 Exhibit D)(Denis, Martin) (Entered: 02/13/2008)
450 MINUTE entry before Judge Harry D. Leinenweber :After receiving verdicts from the jury, Copello and Kennedy settled their claims for the sum of $200,000 each. A dispute has arisen as to whether taxes for federal and state income taxes, as well as Social Security and Medicare should be withheld and Copello and Kennedy receive the balance. Copello and Kennedy contend that they should receive lump sums of $200,000 without any withholding and Defendant contends that it should withhold on the entire amount. Defendant cites Rivera v. Baker West, 430 F.3d 1253 (9th Cir.2005).Mailed notice (ef, ) (Entered: 02/29/2008)
451 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment Modifying Injunction (Attachments: # 1 Exhibit A and B)(Denis, Martin) (Entered: 03/04/2008)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 34 of 35

03/04/2008 03/05/2008 03/05/2008 03/06/2008 03/06/2008 03/06/2008 03/25/2008
03/31/2008 03/31/2008 03/31/2008 06/19/2008
06/19/2008 09/23/2008
03/25/2009 09/04/2009 09/04/2009

452 NOTICE of Motion by Martin K. Denis for presentment of motion to alter judgment 451 before Honorable Harry D. Leinenweber on 3/6/2008 at 09:30 AM. (Denis, Martin) (Entered: 03/04/2008)
453 MOTION by Intervenor Parties Catherine Copello, Allison Kennedy to alter judgment Revised (Attachments: # 1 Exhibit A and B)(Denis, Martin) (Entered: 03/05/2008)
454 NOTICE of Motion by Martin K. Denis for presentment of motion to alter judgment 453 before Honorable Harry D. Leinenweber on 3/6/2008 at 09:30 AM. (Denis, Martin) (Entered: 03/05/2008)
455 MINUTE entry before Judge Harry D. Leinenweber : Enter Modified Injunction Order. Mailed notice (ar, ) (Entered: 03/10/2008)
456 MODIFIED Inunction Order, signed by Judge Joan H. Lefkow on 3/6/2008 455 . Mailed notice (ar, ) (Entered: 03/10/2008)
457 MINUTE entry before Judge Harry D. Leinenweber :Intervenors' revised motion to enter order modifying injunction is granted 453 . Mailed notice (smm) (Entered: 03/10/2008)
458 MINUTE entry before Judge Honorable Harry D. Leinenweber:Motion by Intervenor Parties Copello and Kennedy to strike Parts of Custom Companies Motion for Summary Judgment 190 is denied as moot. Motion by Plaintiff EEOC to Exclude Defendants' Human Resources Expert 208 is denied as moot. Motion by Plaintiff EEOC in limine in opposition to Defendants' Oral Motion to Bar Evidence of Offers of Settlement 269 is denied as moot. Motion by Plaintiff EEOC for sanctions under Rule 37 327 is denied as moot. Mailed notice (wp, ) (Entered: 03/25/2008)
459 FULL SATISFACTION of Judgment as to Custom Companies, Inc., Custom Executive Group, Inc. in the amount of 52,800.00 to Kimberly Fritkin (Gianos, Diane) (Entered: 03/31/2008)
460 FULL SATISFACTION of Judgment as to Custom Companies, Inc., Custom Executive Group, Inc. in the amount of Catherine Copello $200,000 Before Taxes / Allison Kennedy $200,000 Before Taxes (Gianos, Diane) (Entered: 03/31/2008)
461 Full SATISFACTION of Judgment as to Custom Companies, Inc., Custom Executive Group, Inc. in the amount of $900,000 to the law firm of Barlow, Kobata & Denis (Gianos, Diane) (Entered: 03/31/2008)
462 MINUTE entry before the Honorable Harry D. Leinenweber:By agreement, it is hereby ordered that in consideration of the previously filed satisfactions of judgment on case nos. 02 CV 3768 and 03 CV 2293 and settlement of such award, the court hereby fully and unconditionally releases Platte River Insurance Company form any and all past, present and future liability under Bond No. 40434524, formerly 918777.Mailed notice (ca, ) (Entered: 06/24/2008)
463 AGREED ORDER Signed by the Honorable Harry D. Leinenweber on 6/19/2008:(ca, ) (Entered: 06/24/2008)
464 MINUTE entry before the Honorable Harry D. Leinenweber:Motion by Intervenor Parties for leave to file attorney's fee petition in excess of fifteen pages 416 is granted, nunc pro tunc to September 18, 2007. Motions by Intervenor Parties to enter order modifying injunction 439 , alter judgment modifying injunction 444 , and Defendant's motion to enter final settlement order 446 are granted in part and denied in part, nunc pro tunc to March 6, 2008. Mailed notice (wp, ) (Entered: 09/23/2008)
465 MINUTE entry before the Honorable Harry D. Leinenweber:Pursuant to the Court's order on 3/6/2008, granting Intervenors' revised motion to enter order modifying injunction, the motion by intervenor parties 451 to alter judgment modifying injunction is terminated as moot. Mailed notice (wp, ) (Entered: 03/25/2009)
466 NOTICE of withdrawal of exhibit 301 , exhibit 403 by David Anderson of Foley & Lardner. (aac, ) (Entered: 09/09/2009)
467 LETTER from Bennett L. Epstein dated 8/31/2009. (aac, ) (Entered: 09/11/2009)

Case: 1:02-cv-3768 As of: 05/22/2017 01:13 PM CDT 35 of 35
02/17/2011 468 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 07−2740, 07−2756 consisting of 19 volumes of sealed envelopes. (ma, ) (Entered: 02/22/2011)

 </s> Multi-Million Dollar Jury Verdict for EEOC in Sexual Harassment Case...

http://www.eeoc.gov/press/11-17-06.html

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE NOVEMBER 17, 2006

CONTACT: TTY:

John Hendrickson EEOC Regional Attorney (312) 353-8551 (312) 353-2421
Richard Mrizek EEOC Trial Attorney (312) 886-9078
Deborah Hamilton EEOC Trial Attorney (312) 353-7649

MULTI-MILLION DOLLAR JURY VERDICT FOR EEOC IN SEXUAL HARASSMENT CASE AGAINST CUSTOM
COMPANIES
$2,355,000 Awarded to Three Saleswomen for Sexual Harassment and Retaliation By Northlake, Ill. Trucking Company
CHICAGO - A federal court jury this afternoon returned a $2.355 million verdict in favor of the U.S. Equal Employment Opportunity Commission (EEOC) and three saleswomen who experienced sexual harassment and retaliation while employed by The Custom Companies, a Northlake, Ill. trucking company. The verdicts included punitive damages in the amount of $2.05 million and compensatory damages in the amount of $245,000. One woman was awarded, in addition, $60,000 to compensate her for her expenses in defending a retaliatory lawsuit filed against her by Custom Companies.
EEOC had charged that the three female sales representatives were subjected to unwelcome groping, lewd sexual language, sexual propositions, and pornography, and that one was sued by Custom Companies in the Illinois state court because she complained to the EEOC. In addition, EEOC maintained that female sales representatives were expected to entertain Custom Companies customers and potential clients at the "Thee Doll House" and its successor "Crazy Horse Too," so- called "gentlemen's" or "strip" clubs on Kingsbury Street in Chicago now known as the "VIP's: A Gentlemen's Club." EEOC's evidence at trial indicated that the chief executive of Custom Companies also had an ownership interest in and was the chief executive of "Thee Doll House" and "Crazy Horse Too."
The EEOC's case at trial, supported by photographs, included evidence that strippers in revealing attire were positioned around the course at Custom Companies-sponsored golf outings for customers.
EEOC was represented by Trial Attorneys Richard Mrizek and Deborah Hamilton of the agency's Chicago District Office. Mrizek said, "Custom Companies' principal defense in the case appeared to be as it is in so many sexual harassment cases that nothing ever happened. This afternoon's verdict demonstrates the folly of that defense in the face of credible evidence to the contrary."
"The jury sent a big message this afternoon," Hamilton added, "not only to Custom Companies but to all employers. The message is that sexual harassment is just not acceptable period. Employers who don't get that are courting trouble the kind of trouble that can strike hard at the bottom line."
Mrizek and Hamilton noted that under the Civil Rights Act of 1991, the maximum amount which may be recovered on any particular claim in such cases is $300,000 and that, therefore, certain of the awards made by the jury may be reduced in subsequent proceedings before the judge.
John Hendrickson, the EEOC"s Regional Attorney in Chicago, said, "From time to time we hear it said that the big results EEOC achieves in harassment cases are suspect because so many of our resolutions take the form of consent decrees that is, without trials. Today, after an extended trial, a jury returned a verdict of almost $2.4 million for three women. That ought to be a stake to the heart of any notion that we do not or cannot successfully try harassment cases. We can and will."
The EEOC's lawsuit was filed May 28, 2002 in the U.S. District Court for the Northern District of Illinois in Chicago and was captioned EEOC v. Custom Companies, Inc. and Custom Distribution Network, Inc., Civil Action No. 02 C 3768. The case was assigned to District Judge Harry D. Leinenweber who oversaw pretrial proceedings and presided over the trial which concluded today. Chicago attorneys Marty Denis and Michael D. Robbins, who represented two of the women who had intervened in the case, also participated in the trial.

1 of 2

5/22/2007 4:30 PM

Multi-Million Dollar Jury Verdict for EEOC in Sexual Harassment Case...

http://www.eeoc.gov/press/11-17-06.html

EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site at www.eeoc.gov.
This page was last modified on November 17, 2006.

Return to Home Page

2 of 2

5/22/2007 4:30 PM

 </s> Final Judgment In EEOC Sexual Harassment Case Against Custom Co...

http://www.eeoc.gov/press/3-8-07.html

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE March 8, 2007

CONTACT: John Hendrickson EEOC Regional Attorney (314) 539-7910
TTY: (312) 353-2421
Richard Mrizek EEOC Trial Attorney (312) 886-9078
Deborah Hamilton EEOC Trial Attorney (312) 353-7649

FINAL JUDGMENT IN EEOC SEXUAL HARASSMENT CASE AGAINST CUSTOM COMPANIES TOPS $1.1 MILLION
Federal Judge Cites Involvement of Top Management in Permitting Harassment and in Retaliating Against Victims
CHICAGO – A federal district judge this morning entered final judgment in an amount exceeding $1.1 million in favor of the U.S. Equal Employment Opportunity Commission (EEOC) and against Custom Companies, a Northlake, Ill., trucking company in a sexual harassment case brought by the agency under Title VII of the Civil Rights Act of 1964.
In a 50-page Memorandum Opinion and Order explaining the judgment, U.S. District Judge Harry D. Leinenweber was sharply critical of the founder and chief executive of the company and other top managers and granted broad injunctive relief affecting the companies’ business practices, including its use of “adult entertainment” (EEOC v. Custom Companies, Inc., et al, N.D. Ill. Nos. 02-C-3768 and 03-C2293, Mem. Op. & Order 3/8/2007).
“Defendants’ actions were reprehensible,” Judge Leinenweber wrote. “There was evidence of repeated touching . . . sexually explicit comments and jokes, sexual advances, and a sexually charged atmosphere. . . The harassment came from employees in positions of power.”
In determining that it was necessary for the court to enjoin the future conduct of Custom Companies, the judge wrote, “Circumstances indicate that Defendants might engage in sexual harassment in the future. The sexual harassment was carried out by several individuals still employed by Defendants . . . The president and owner of the company, [Perry] Mandera, was even involved in the retaliation.”
Today’s final judgment follows a Nov. 17, 2006, jury verdict in the case in favor of the EEOC in which $2.36 million in the aggregate was awarded to the three former Custom Companies employees upon whose behalf the EEOC had sought relief. EEOC Trial Attorney Richard Mrizek, who led the government litigation team with Trial Attorney Deborah Hamilton, said that the judge was required to lower the amounts originally awarded by the jury because of dollar amount limitations imposed by the Civil Rights Act of 1991. That act amended Title VII of the Civil Rights Act of 1964, under which the EEOC’s lawsuit was brought.
EEOC had charged that the three female sales representatives were subjected to unwelcome groping, lewd sexual language, sexual propositions, and pornography, and that one was sued by Custom Companies in Illinois state court because she complained to the EEOC. In addition, EEOC maintained that female sales representatives were expected to entertain Custom Companies customers and potential clients at the “Thee Doll House” and its successor “Crazy Horse Too,”so-called “gentlemen’s” or “strip” clubs on Kingsbury Street in Chicago, now known as “VIP’s: A Gentlemen’s Club.” EEOC’s evidence at trial indicated that the chief executive of Custom Companies also had an ownership interest in and was the chief executive of “Thee Doll House” and “Crazy Horse Too.”
The EEOC’s case at trial, supported by photographs, included evidence that strippers in revealing attire were positioned around the course at Custom Companies-sponsored golf outings for customers.
Judge Leinenweber’s injunction, described at length in his order, will last for a period of four years. It

1 of 2

5/22/2007 4:31 PM

Final Judgment In EEOC Sexual Harassment Case Against Custom Co...

http://www.eeoc.gov/press/3-8-07.html

requires, among other things, that Custom Companies not sponsor company events at “a place of adult entertainment or which includes adult entertainers” and that Custom Companies distribute a notice to its customers “advising them of the jury verdict [and] the court’s judgment.” The company is required to post a notice advising all employees of the outcome of the EEOC lawsuit and their “right to contact the EEOC without fear of retaliation,” and to provide sexual harassment training for all employees, including top executives and supervisors.
EEOC Regional Attorney John Hendrickson said, “Judge Leinenweber’s final judgment will surely be a milestone in Title VII law, especially on sexual harassment. It addresses and resolves in a thoughtful and scholarly way a host of important issues, including the calculation of employer size for purposes of the statutory damage caps, the nature of the caps themselves, the availability of all types compensatory and punitive damages and other forms of monetary relief, and the utilization of counter-strike lawsuits as a form of retaliation. Make no mistake about it, this is a big decision--it’s really important.”
“But beyond all that,” Hendrickson added, “we think it is especially significant that the court was willing to follow the evidence heard by the jury right into the executive suite and to the desk of the chief executive in assessing the need for injunctive relief and designing that relief to fit the way this company has done business. That is critically important, and it is what is going to make a practical difference to women who work at Custom Companies now and who will work there in the future.”
The EEOC’s lawsuit was filed May 28, 2002, in the U.S. District Court for the Northern District of Illinois in Chicago. The case was assigned to District Judge Leinenweber throughout the litigation. Chicago attorneys Marty Denis and Michael D. Robbins represented two of the women who intervened in the case.
Sexual harassment violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation. The EEOC is responsible for enforcing the nation’s laws prohibiting discrimination in employment based on race, color, sex (including sexual harassment and pregnancy), religion, national origin, age, disability, and retaliation. Further information about the Commission is available on its web site at www.eeoc.gov.
This page was last modified on March 8, 2007.

Return to Home Page

2 of 2

5/22/2007 4:31 PM


[CONTENT] May of 2002 | EEOC | Chicago District Office | U.S. | District Court | Northern District | Illinois | Custom Companies Inc. ||| Title VII |||  ||| July of 2003 | EEOC | 1:03-cv-02293 |||  ||| November of 2006 ||| November 17, 2006 | over $2 million | over $300,000 ||| March of 2007 |||  ||| June of 2007 ||| December of 2007 | the Court of Appeals ||| March of 2008 | 452,800 | 900,000 ||| annual | EEOC ||| June 19, 2008 | Harry Leinenweber [SUMMARY] In May of 2002, the EEOC's Chicago District Office filed suit in U.S. District Court, Northern District of Illinois, against Custom Companies Inc., a trucking company, and related corporate entities. The suit alleged sexual harassment and retaliation in violation of Title VII.  

The charging parties intervened as plaintiffs. In July of 2003, the case was consolidated with a separate action brought by the EEOC against Custom Companies (1:03-cv-02293). The defendants made multiple motions for summary judgment; one was granted in part, the others were denied. After a prologued series of discovery disputes, the case went to trial in November of 2006. On November 17, 2006, the jury returned a verdict in favor of the plaintiffs, awarding over $2 million in punitive damages and over $300,000 in compensatory damages. In March of 2007, the award was halved pursuant to statutory caps, and the court entered the judgment against the defendants. 

Both parties moved to amend the judgment. In June of 2007, the defendants appealed the judgment. In December of 2007, the parties came to terms, and the Court of Appeals remanded the case so that the district court could amend the judgment to reflect the settlement. After some disputes regarding withholding, a final order was entered in March of 2008 granting $452,800 in compensatory and punitive damages and $900,000 in attorney fees. Custom Companies was also ordered to conduct annual anti-discrimination training for its employees, and to report any future complaints of sexual harassment to the EEOC.

On June 19, 2008, Judge Harry Leinenweber signed an order indicating that the plaintiffs, plaintiff-intervenors, and counsel had all been paid in full, and the matter appears to have been resolved. 

