1 MARY JO O'NEILL # 005924
SALLY C. SHANLEY #012251
2 KATHERINE J. KRUSE # 019127
EQUAL EMPLOYMENT OPPORTUNITY
3 COMMISSION
Phoenix District Office
4 3300 North Central Avenue, Suite 690
Phoenix, Arizona 85012
5 Telephone: (602) 640-5029
e-mail: katherine.kruse@eeoc.gov
6 Attorneys for Plaintiff

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF ARIZONA

10

Equal Employment Opportunity

)

11 Commission,

)

)

12

Plaintiff,

)

)

13

vs.

) )

14 AutoZone, Inc., a Nevada corporation,

) )

15

Defendant.

)

COMPLAINT AND JURY TRIAL DEMAND

16

NATURE OF THE ACTION

17

This is an action under Title VII of the Civil Rights Act of 1964, as amended, and

18 Title I of the Civil Rights Act of 1991, against the Defendant, AutoZone, Inc., to correct
19 unlawful employment practices on the basis of sex, and to provide appropriate relief to Stacy
20 Wing, who was adversely affected by such practices. The Equal Employment Opportunity Commission, (“EEOC” or “Commission”), alleges that Defendant subjected Ms. Wing to
21 sexual harassment that created a hostile work environment, and retaliated against her when
22 complaints were made about the harassment.
23 JURISDICTION AND VENUE
24 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,
25 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and
26 (3) of Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. §§
27 2000e-5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
28

1

2. The employment practices alleged to be unlawful were committed within the

2 jurisdiction of the United States District Court for the District of Arizona.

3

PARTIES

4

3. Plaintiff, the EEOC, is an agency of the United States of America charged with

5 the administration, interpretation, and enforcement of Title VII, and is expressly authorized

6 to bring this action by Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1).

7

4. At all relevant times, Defendant has continuously been doing business in the

8 State of Arizona and has continuously had at least fifteen employees.

9

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

10 in an industry affecting commerce under Sections 701(b), (g), and (h) of Title VII, 42 U.S.C.

§§ 2000e(b), (g), and (h). 11
STATEMENT OF CLAIMS 12
6. More than thirty days prior to the institution of this lawsuit, Stacy Wing filed 13
a charge with the Commission alleging violations of Title VII by the Defendant. All 14
conditions precedent to the institution of this lawsuit have been fulfilled.
15 First Claim: Sexual Harassment

16

7. Since at least April, 2003, Defendant has engaged in unlawful employment

17 practices in Phoenix, Arizona, in violation of Section 703(a) of Title VII, 42 U.S.C. §

18 2000e-2(a), by discriminating against Stacy Wing on the basis of her sex, female by

19 subjecting her to sexual harassment by a manager that created a hostile work environment.

20 The manager engaged in many offensive acts, including but not limited to, repeatedly forcing

21 Ms. Wing’s head down to his genitals and making crude sexual remarks to her, such as,

22 “Need some protein?”

23

8. Although Ms. Wing complained to AutoZone’s Human Resources Department

24 about the sexual harassment, AutoZone failed to exercise reasonable care to prevent and/or

25 promptly correct the sexual harassment. AutoZone did nothing to address the sexual

26 harassment after Ms. Wing’s initial complaints; it only began to investigate after another

27 employee complained about the continued harassment of Ms. Wing several months later.

28 \\

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Second Claim: Retaliation

2

9. Since at least the year 2003, Defendants have engaged in unlawful retaliatory

3 practices in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) by retaliating

4 against Ms. Wing because she opposed the unlawful sexual harassment by complaining to

5 Auto Zone’s Human Resources Department, and/or because she assisted or participated in

6 the investigation of the unlawful sexual harassment after another employee complained about

7 the continued harassment of Ms. Wing several months later.

8

10. Defendants’ unlawful retaliation includes but is not limited to withdrawing Ms.

9 Wing’s promotion to a Parts Service Manager or a Parts Sales Manager position.

10

Allegations Pertaining to Both Claims

11. The effect of the practices complained of in paragraphs 7 through 10 above has 11
been to deprive Stacy Wing of equal employment opportunities and otherwise adversely 12
affect her status as an employee because of her sex. 13
12. The unlawful employment practices complained of in paragraphs 7 through 14
10 above were intentional. 15
13. The unlawful employment practices complained of in paragraphs 7 through
16 10 above were done with malice or with reckless indifference to the federally protected rights

17 of Stacy Wing.

18

PRAYER FOR RELIEF

19

Wherefore, the Commission respectfully requests that this Court:

20

A. Grant a permanent injunction enjoining the Defendant, its officers, successors,

21 assigns, and all persons in active concert or participation with it from engaging in any

22 employment practice which discriminates on the basis of sex.

23

B. Order the Defendant to institute and carry out policies, practices, and programs

24 which provide equal employment opportunities for female applicants and employees, and

25 which eradicate the effects of their past unlawful employment practices.

26

C. Order the Defendant to make whole Stacy Wing by providing compensation

27 for past and future pecuniary losses resulting from the unlawful employment practices

28 described in paragraphs 7 through 13 above, in amounts to be determined at trial.

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E. Order the Defendant to make whole Stacy Wing by providing compensation

2 for past and future nonpecuniary losses resulting from the unlawful employment practices

3 described in paragraphs 7 through 13 above, including but not limited to, pain and suffering,

4 mental anguish, humiliation, embarrassment, emotional distress, anxiety, inconvenience, and

5 loss of enjoyment of life, in amounts to be determined at trial.

6

F. Order the Defendant to pay Stacy Wing punitive damages for its malicious

7 conduct or reckless indifference described and referenced in paragraphs 7 through 13 above,

8 in amounts to be determined at trial.

9

G. Grant such further relief as the Court deems necessary and proper in the public

10 interest.

H. Award the Commission its costs in this action. 11
JURY TRIAL DEMAND 12
The Commission requests a jury trial on all questions of fact raised by its Complaint. 13
RESPECTFULLY SUBMITTED this 30th day of March, 2006. 14

15

JAMES L. LEE

Deputy General Counsel

16

GWENDOLYN YOUNG REAMS

17

Associate General Counsel

18

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

19

1801 L Street, N.W. Washington, D.C. 20507

20

s/ Mary Jo O’Neill

21

MARY JO O’NEILL Regional Attorney

22

s/ Sally C. Shanley

SALLY C. SHANLEY

23

Acting Supervisory Trial Attorney

24

s/ Katherine J. Kruse

KATHERINE J. KRUSE

25

Trial Attorney

26

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

27

3300 North Central Ave., Suite 690

Phoenix, Arizona 85012-2504

28

Attorneys for Plaintiff

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3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Equal Employment Opportunity) No. CIV 06-926-PHX-SMM

9 Commission,

)

) ORDER

10 Plaintiff,

)

)

11 v.

)

)

12 AutoZone, Inc., a Nevada corporation, )

)

13 Defendant

)

_________________________________ )

14

Currently pending before this Court is the Partial Motion for Summary Judgment (Dkt.

15

81) filed by Plaintiff Equal Employment Opportunity Commission (EEOC) against AutoZone,

16

Inc. (AutoZone). The EEOC seeks summary judgment as to affirmative defenses numbered six

17

and eight in Defendant’s Second Amended Answer. (Dkt. 78.)

18

Background

19

Plaintiff filed this action pursuant to Title VII of the Civil Rights Act of 1964, as

20

amended, and the Civil Rights Act of 1991. In the Complaint, the EEOC alleges that Defendant

21

AutoZone subjected Plaintiff Stacy Wing (Wing) to sexual harassment by discriminating

22

against her on the basis of her sex, which ultimately created a hostile work environment for

23

Wing. The EEOC further alleges that AutoZone retaliated against Wing for making known her

24

opposition to the allegedly unlawful sexual harassment.

25

Standard of Review

26

A court must grant summary judgment if the pleadings and supporting documents,

27

viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue

28

1 as to any material fact and that the moving party is entitled to judgment as a matter of law."

2 Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v.

3 Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines

4 which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also

5 Jesinger, 24 F.3d at 1130. "Only disputes over facts that might affect the outcome of the suit

6 under the governing law will properly preclude the entry of summary judgment." Anderson,

7 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be "such that a

8 reasonable jury could return a verdict for the nonmoving party." Id.; see Jesinger, 24 F.3d at

9 1130.

10

A principal purpose of summary judgment is "to isolate and dispose of factually

11 unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against

12 a party who "fails to make a showing sufficient to establish the existence of an element essential

13 to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322;

14 see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party

15 need not disprove matters on which the opponent has the burden of proof at trial. See Celotex,

16 477 U.S. at 323-24. The nonmovant "may not rest upon the mere allegations or denials of [the

17 party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for

18 trial." Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

19 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.

20 1995). A trial court can only consider admissible evidence in ruling on a motion for summary

21 judgment. Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

22

Discussion

23 I. After-Acquired Evidence Doctrine

24

Defendant asserted the doctrine of after-acquired evidence as its sixth affirmative defense

25 in its Second Amended Answer. Plaintiff, however, contends that Defendant’s sixth affirmative

26 defense fails as a matter of law and fact and should therefore be dismissed.

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1

Pursuant to the doctrine of after-acquired evidence, an employer must establish an

2 employee’s “wrongdoing was of such severity that the employee in fact would have been

3 terminated on these grounds alone, if the employer had known at the time of the discharge.”

4 McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 886-889 (1995). It is well

5 established that the doctrine of after-acquired evidence has limited applicability, inter alia, an

6 employee’s remedies can be limited if the employer discovers evidence that the employee

7 engaged in wrongdoing that would have led to the employee’s discharge had the employer

8 known of the wrongdoing. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070 (9th Cir 2004) (citing

9 McKennon, at 879 (1995)). The employer has the burden of showing that, if it had such

10 evidence, it would have discharged the employee. Id. at 1072 (citing O’Day v. McDonnell

11 Douglas Helicopter Co., 79 F.3d 756, 758-759 (9th Cir. 1995)).

12

Defendant asserted in an answer to an interrogatory that the basis for the after-acquired

13 evidence defense in this case was that Wing had been convicted of disorderly conduct, and if

14 this conviction was not listed on Wing’s application, the affirmative defense at issue would

15 apply. Essentially, Defendant is merely asserting that it would have terminated Wing upon

16 learning of any such failure to disclose a conviction. However, contrary to the requisite

17 standard, Defendant has offered no evidence in support of this assertion or this defense. Mere

18 speculation on the part of AutoZone is not sufficient under the well established law. “When the

19 non-moving party has the burden of proving the . . . defense, the moving party can meet its

20 burden by pointing out the absence of evidence from the non-moving party.” Miller., 454 F.3d

21 at 987 (citing Celotex, 477 U.S. at 325). “When the moving party meets its burden, the ‘adverse

22 party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the

23 adverse party’s response, by affidavits or as otherwise provided in [Rule 56(e)], must set forth

24 specific facts showing that there is a genuine issue for trial.’” Id. (quoting Fed. R. Civ. P. 56(e));

25 see also Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Horphag

26 Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). “Summary judgment will be

27

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1 entered against the non-moving party if that party does not present such specific facts.” Miller,

2 454 F.3d at 987-988 (citing Fed. R. Civ. P. 56(e)).See Rivera, 364 F.3d at 1070.

3

Defendant AutoZone has offered no evidence that, had it found any failure on the part

4 of Wing to disclose any such conviction, such “wrongdoing was of such severity that the

5 employee, in fact, would have been terminated” or not hired. McKennon, 115 S. Ct. at 86.

6 Defendant bears the burden of proof on this issue. See Rivera, 364 F.3d at 1072. In fact,

7 AutoZone merely states the name of a witness it “may” present at trial, Scott Anderson

8 (Anderson), “to testify as to what the practices were in 2003 and other individuals terminated

9 for misrepresenting a conviction on their employment application.” However, Defendant does

10 not offer an affidavit or declaration regarding the actual testimony expected from Anderson.

11 Under well established Ninth Circuit authority, Defendant’s statement pertaining to what

12 testimony it might seek to elicit at trial does not constitute the evidence required to survive a

13 motion for summary judgment. See Miller v. Glen Miller Productions, Inc., 454 F.3d 975, 987

14 (9th Cir 2006) (citing Celotex, 477 U.S. at 325). Accordingly, Defendant has not created a

15 genuine issue of material fact to survive the EEOC’s Motion for Summary Judgment on another

16 necessary element of the defense, i.e., that any wrongdoing would have resulted in termination.

17

Significantly, Defendant has offered no evidence that Wing was actually convicted of

18 disorderly conduct (Dkt. 85.) Moreover, Defendant concedes that it is unable locate Wing’s

19 application. (Dkt. 85.) Thus, Defendant’s assertions are based on mere speculation.

20 Furthermore Defendant’s proposal that, despite its lack of supporting evidence, it should

21 nonetheless be given the opportunity to question, at trial, Wing and Jose Contreras, would be

22 contrary to the Rules. Fed.R.Civ.P. 56. Defendant has previously conceded: that (1) Wing has

23 explained that she was not convicted of any crime, and (2) Defendant does not know what Mr.

24 Contreras will actually testify to at trial regarding the matter. Furthermore, Defendant has failed

25 to proffer an affidavit or declaration detailing the testimony it would expect to elicit from Mr.

26 Contreras regarding the issue. Defendant’s speculation about what it might seek to evoke at trial

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1 unequivocally fails to constitute the evidence required to survive summary judgment. See

2 Miller, 454 F.3d at 987-988; Celotex Corp. 477 U.S. 317. Defendant has not created a genuine

3 issue of material fact to survive the EEOC’s Motion for Partial Summary Judgment with regard

4 to a necessary element of the defense, the existence of wrongdoing, and admissible evidence

5 supporting an assertion thereof. See Rivera, 364 F.3d at 1070.

6 II. Punitive Damages

7

In its eighth affirmative defense, Defendant contends, “[a]ny award of punitive damages

8 in this case would violate the constitutions of the State of Arizona and the United States of

9 America.” (Dkt. 78). Plaintiff argues, and the Court agrees, that Defendant cannot utilize the

10 Constitution of the State of Arizona to challenge federal law where the sole claims at issue are

11 federal claims. Pursuant to the Supremacy Clause in Article VI of the United States

12 Constitution, the punitive damages provision of Title VII, a federal statute, is not subject to any

13 limitations imposed by a State Constitution, here the State of Arizona’s Constitution. “The

14 Supremacy Clause unambiguously provides that if there is any conflict between federal and

15 state law, federal law shall prevail.” Gonzales v. Raich, 545 U.S. 1, 29, 125 S.Ct. 2195 (2005).

16 States may regulate, but only in a manner ‘“not inconsistent with federal law.’” Zila, Inc. v.

17 Tinnell, 502 F.3d. 1014, 1020 (9th Cir. 2007) (quoting Aronson v. Quick Point Pencil Co., 440

18 U.S. 257, 990 S.Ct. 1096 (1979)).

19

In the instant case, Defendant fails to set forth the provisions of the United States

20 Constitution it believes would be violated by a punitive damages award in this case. Plaintiff

21 is correct that the Ninth Circuit Court of Appeals has previously ruled that the punitive damages

22 provision of Title VII, 42 U.S.C. § 1981a(b), does not violate the constitutional doctrine of

23 separation of powers because it is it not an “impermissible intrusion by the legislature into the

24 province of the judiciary.” Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1200-1201 (9th Cir.

25 2002). The Ninth Circuit has further ruled that the punitive damages provision of Title VII does

26 not violate the Seventh Amendment by impermissibly infringing on the power of the jury. Id.

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1 at 1202. Furthermore, Defendant has not argued that a specific punitive award is too excessive,

2 thereby violating the Due Process Clause, instead, Defendant contends that any punitive

3 damages awarded in this case, under Title VII, would be unconstitutional. However, Defendant

4 has failed to set forth legal or factual evidence to support such an assertion. Accordingly,

5 summary judgment is appropriate as to Defendant’s eighth affirmative defense.

6

The Court recognizes that despite its inability to move forward with its eighth affirmative

7 defense, Defendant has preserved its right to argue against punitive damages in its fifth

8 affirmative defense.1 The significant distinction between affirmative defense eight and

9 affirmative defense Five is that affirmative defense Eight actually calls into question the

10 constitutionality of punitive damages in this case, whereas affirmative defense Five pertains

11 directly to whether Defendant is liable for punitive damages.2 Kolstad v. Am. Dental Ass’n, 527

12 U.S. 526 (1999). Defendant has failed to establish through necessary supporting authority or

13 evidence that punitive damages in this case, regardless of the amount, would be

14 unconstitutional. Moreover, because Defendant preserved its right to argue against its liability

15 for punitive damages in its Fifth affirmative defense, Plaintiff is correct in its assertion that an

16 award of summary judgment to the EEOC on Defendant’s Eighth affirmative defense will not

17 prevent Defendant from presenting at trial evidence regarding its alleged liability for punitive

18 damages.

19 ///

20 ///

21

22 1 Defendant preserved its punitive damages defense separately in its Fifth Affirmative
23 Defense, which states, “Defendant denies any and all liability for punitive damages for any
24 alleged acts of its employees which are contrary to AutoZone’s good faith efforts to comply with Arizona law and Title VII.” (Dkt. 78.)
25 2 Therefore, Defendant’s desire to present evidence at trial regarding the Kolstad defense
26 does not constitute evidence necessary to survive summary judgment on the defense of the
27 constitutionality of a punitive damages award. See Miller, 454 F.3d at 987-988.

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1

Conclusion

2

IT IS HEREBY ORDERED GRANTING Plaintiff’s Motion for Partial Summary

3 Judgment (Dkt. 81.) as to affirmative defenses numbered six and eight in Defendant’s Second

4 Amended Answer.

5

DATED this 5th day of June, 2008.

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 </s> 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Equal Employment Opportunity)

Commission,

)

10

)

Plaintiff,

)

11

)

vs.

)

12

)

)

13 AutoZone, Inc., a Nevada corporation, )

)

14

Defendant.

)

)

15

No. CV 06-926-PHX-SMM ORDER

16

17

Pending before the Court is Defendant AutoZone, Inc.’s (“AutoZone”) Motion for

18 Summary Judgement. (Dkt. 79.) Plaintiff Equal Employment Opportunity Commission

19 (“EEOC”) opposes Defendant’s motion on grounds that genuine questions of material fact

20 remain. Fed. R. Civ. P. 56. After careful consideration, the Court finds the following.

21

BACKGROUND

22

A. Statement of Facts

23

Stacy Wing (“Wing”) was hired to work at AutoZone Store 2737 (“2737") in the first

24 half of 2003. (Wing Dep. at 46-47.) At the time Wing was hired, Jose Contreras

25 (“Contreras”) was the store manager of 2737. (Def.’s Statement of Material Facts ¶ 2.)

26 Contreras resigned as store manager in December 2003. (Id. ¶ 69.) Within the first month

27 of being employed, Wing reported by phone to the Regional Human Resources Manager in

28 charge of 2737 that she had been sexually harassed by Contreras. (Anderson Dep. at 49.)

1 At the time, Scott Anderson (“Anderson”) was the Regional Human Resources Manager

2 responsible for 2737. (Def.’s Statement of Material Facts ¶ 17.) Several days thereafter,

3 Anderson went to 2737 to investigate the report. (Id. ¶ 31.) While there, Anderson spoke

4 with Wing, Contreras, and allegedly spoke with several other employees of 2737. (Id. ¶¶ 32,

5 36, 37.) AutoZone could not corroborate Wing’s reports of harassment based on this

6 investigation. (Id. ¶¶ 36, 37.) Anderson did remind Contreras of AutoZone’s policies

7 regarding harassment and retaliation. (Id. ¶ 36.) No other action was taken by Anderson at

8 this time. (Id.) Wing alleges that physical and verbal sexual harassment continued during

9 the remainder of the year. (Wing Dep. at 125-127.)

10

In December 2003, Joe Acuna (“Acuna”), who also worked at 2737, witnessed

11 Contreras sexually harassing Wing in a physical nature. (Def.’s Statement of Material Facts

12 ¶ 49.) Acuna reported his observations to Anderson. (Id.) Anderson confirmed Acuna’s

13 report by watching a surveillance video of the incident. (Id. ¶ 56.) Consequently, Anderson

14 was able to identify Contreras engaging in the sexual harassment. (Id.) Anderson met with

15 and informed Contreras that AutoZone possessed a video of him sexually harassing Wing.

16 (Id. ¶ 68.) Anderson told Contreras “he could either: (1) be suspended during the completion

17 of the investigation and then be fired; or (2) resign immediately.” (Id.) Contreras

18 immediately resigned. (Id. ¶ 69.)

19

Wing claims that after Contreras resigned, she was denied a requested day off and was

20 scheduled for four consecutive 12-hour shifts. (Def.’s Statement of Material Facts ¶ 74.)

21 The day off Wing requested was January 19, 2004; however, Wing does not recall why she

22 requested this day off. (Id. ¶ 75.) Further, Wing does not remember who allegedly denied

23 her request for time off nor what reason was given for the alleged denial. (Id.) The

24 consecutive shifts Wing complains of allegedly occurred between the day she was hired and

25 January 29, 2004. (Wing Dep. at 175-176.) Wing does not recall when the four shifts

26 actually occurred or who scheduled her for the specific shifts. (Id. at 178.)

27

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1

Wing further claims that she was denied a promotion for the position of Parts Service

2 Manager (“PSM”) in retaliation for reporting the sexual harassment. (Def.’s Statement of

3 Material Facts ¶ 74.) Wing was initially hired as a part-time customer service representative

4 at 2737. (Wing Declaration ¶ 3.) On February 23, 2004, Wing was promoted to “full-time

5 sales.” (Def.’s Statement of Material Facts ¶ 79.) Thereafter, in 2005, Wing was promoted

6 to the position of commercial specialist. (Id.) Wing did not hold the position of PSM. (Id.

7 ¶ 77.) She twice completed the training required by AutoZone for a promotion to a PSM

8 position. (Wing Declaration ¶ 44; “Pl.’s Local Rule of Practice 56.1(b) Resp. to Def.’s

9 Statement of Facts; Pl.’s Separate Statement of Facts” (“Pl. SoF”) ¶ 112.) The first time

10 Wing completed this training, Contreras was the store manager. (Wing Declaration ¶ 44.)

11 The training occurred sometime after Anderson responded to Wing’s first sexual harassment

12 complaint, but before Acuna lodged his complaint on Wing’s behalf. (See Wing Dep. at 72-

13 77.) Wing claims that Contreras told her the reason she was not promoted to PSM after

14 taking the training was because she had complained about him to Scott Anderson. (Wing

15 Declaration ¶ 46.) After Contreras resigned, a temporary store manager gave Wing the pass

16 code necessary to work as a PSM; however, Wing was not told that she was being promoted

17 to that position. (Id. ¶ 47.) Shortly thereafter the code was deactivated by a district

18 manager. (Id. ¶ 49.) Wing participated in the PSM training a second time under the new

19 store manager, Howard Brown (“Brown”). (Id. ¶ 50.) Wing claims that Brown told her that

20 AutoZone had “no intention of promoting [her] to PSM because [she] had gone to an outside

21 agency.” (Id. ¶ 51.) Wing claims a district manager, Scott Schmitt, told her that she was not

22 being promoted to PSM because she “did not keep [her] mouth shut and had gone to an

23 outside agency.” (Id. ¶ 52.)

24 ///

25 ///

26 ///

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1

B. Procedural History

2

Wing filed a complaint against AutoZone with the EEOC on January 29, 20041. On

3 March 30, 2006, the EEOC filed suit, on behalf of Stacy Wing, under Title VII of the Civil

4 Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991. (“Compl.”) The

5 EEOC alleged that AutoZone (1) engaged in unlawful employment practices by

6 discriminating against Stacy Wing on the basis of her sex by subjecting her to sexual

7 harassment by a manager thereby creating a hostile work environment, (2) failed to exercise

8 reasonable care to prevent and/or promptly correct the sexual harassment, and (3) engaged

9 in unlawful retaliatory practices by, inter alia, withdrawing a promotion, because she

10 complained of the harassment to the AutoZone Human Resources Department and/or because

11 she assisted or participated in the EEOC investigation of the unlawful sexual harassment.

12 (Id. ¶¶ 7-10.)

13

STANDARD OF REVIEW

14

A. Summary judgement

15

A court must grant summary judgment if the pleadings and supporting documents,

16 viewed in the light most favorable to the nonmoving party, “show that there is no genuine

17 issue as to any material fact and that the moving party is entitled to judgment as a matter of

18 law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

19 Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law

20 determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248

21 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the

22 outcome of the suit under the governing law will properly preclude the entry of summary

23 judgment.” Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the

24

25

1This complaint alleged gender discrimination, specifically sexual harassment, and

retaliation, “being scheduled for 12 hour shifts for 4 consecutive days, denied off on January 26 19, 2004, demoted from Parts Sales Manager position and denied full-time benefits even

27 though I work full-time hours.” (Wing Dep. Ex. 6 )

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1 evidence must be “such that a reasonable jury could return a verdict for the nonmoving

2 party.” Id.; see Jesinger, 24 F.3d at 1130.

3

A principal purpose of summary judgment is “to isolate and dispose of factually

4 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate

5 against a party who “fails to make a showing sufficient to establish the existence of an

6 element essential to that party's case, and on which that party will bear the burden of proof

7 at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.

8 1994). The moving party need not disprove matters on which the opponent has the burden

9 of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment

10 need not produce evidence "in a form that would be admissible at trial in order to avoid

11 summary judgment." Id. at 324. However, the nonmovant “may not rest upon the mere

12 allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing

13 that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co.,

14 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint

15 Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

16

DISCUSSION

17

A. Sexual Harassment

18

Title VII prohibits employers from “discriminat[ing] against any individual with

19 respect to his compensation, terms, conditions, or privileges of employment, because of an

20 individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). This anti-discrimination principle “is

21 violated when sexual harassment is sufficiently severe or pervasive so as to alter the

22 conditions of the victim’s employment and create an abusive working environment.”

23 Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2005) (quoting Meritor Sav.

24 Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Unwelcome sexual advances, requests for

25 sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual

26 harassment when . . . such conduct has the purpose or effect of unreasonably interfering with

27

28

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1 an individual's work performance or creating an intimidating, hostile, or offensive working

2 environment. 29 C.F.R. § 1604.11(a). To be actionable under Title VII, “a sexually

3 objectionable environment must be both objectively and subjectively offensive, one that a

4 reasonable person would find hostile or abusive, and one that the victim in fact did perceive

5 to be so.” Faragher v. Boca Raton, 524 U.S. 775, 786 (1998).

6

As AutoZone has “assumed” the EEOC can establish a claim for prima facie sexual

7 harassment, no further analysis of this issue is necessary for the purpose of this motion.

8 (Def.’s Mem. in Supp. of Mot. for Summ. J. at 10.)

9

B. Vicarious Liability for Sexual Harassment

10

“[A]n employer is subject to vicarious liability to a victimized employee for an

11 actionable hostile environment created by a supervisor with immediate (or successively

12 higher) authority over the employee.” Faragher, 542 U.S. at 807; Burlington Indus., Inc. v.

13 Ellerth, 524 U.S. 742, 765 (1998). “Notice of the sexually harassing conduct triggers an

14 employer's duty to take prompt corrective action that is reasonably calculated to end the

15 harassment.” Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir.2001) (internal quotations

16 omitted). However, the Supreme Court provides a defense against vicarious liability:

17

“[A] defending employer may raise an affirmative defense to liability or

damages, subject to proof by a preponderance of the evidence. . . The defense

18

comprises two necessary elements: (a) that the employer exercised reasonable

care to prevent and correct promptly any sexually harassing behavior, and (b)

19

that the plaintiff employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or to avoid

20

harm otherwise . . . No affirmative defense is available, however, when the

supervisor's harassment culminates in a tangible employment action.”

21

Faragher, 542 U.S. at 807-808; Ellerth, 542 U.S. at 765. The Court will analyze each

22

element individually.

23

1. Employer Exercised Reasonable Care

24

The Ninth Circuit has held that the first element of the Faragher/Ellerth affirmative

25

defense includes both preventive and remedial measures. Kohler v. Inter-Tel Tech., 244 F.3d

26

1167, 1180-1181 (9th Cir. 2001). “The legal standard for evaluating an employer’s efforts

27

28

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1 to prevent and correct harassment . . . is not whether any additional steps or measures would

2 have been reasonable if employed, but whether the employer’s actions as a whole established

3 a reasonable mechanism for prevention and correction.” Holly D. v. Cal. Inst. of Tech., 339

4 F.3d 1158, 1177 (9th Cir. 2003) (citation omitted).

5

a. Preventive Measures

6

An employer’s adoption and dissemination of an anti-harassment policy can establish

7 that the employer exercised reasonable care to prevent sexual harassment in the workplace.

8 Kohler, 244 F.3d at 1180 (employer had clearly defined definitions, consequences, and

9 reporting procedures for sexual harassment in its policy, ensured employees received and

10 understood the policy on their first day of work, and included a supplemental notice

11 specifically summarizing the policy).

12

The reasonableness of an employer’s efforts can depend on the extent of the

13 dissemination. Faragher, 524 U.S. at 808. In Faragher, the City of Boca Raton had a

14 policy, but failed to adequately disseminate it. Id. at 809. This resulted in the Court holding

15 “as a matter of law that the City could not be found to have exercised reasonable care to

16 prevent the supervisors' harassing conduct.” Id. at 808.

17

AutoZone contends that its efforts to adopt and disseminate a sexual harassment

18 policy are sufficient to meet the preventive element of the Faragher/Ellerth affirmative

19 defense. As support, AutoZone has submitted sections of its 2002 and 2004 Employee

20 Handbooks, each of which contain substantially identical language regarding sexual

21 harassment and reporting procedures therefor. (Def.’s Reply in Supp. of its Mot. for Summ.

22 J. Ex. A.; Statement of Material Facts in Supp. of Mot. for Summ. J. Ex. B.) According to

23 Wing, at some point during her employment, she received an Employee Handbook. (Wing

24 Dep. at 61-62). AutoZone cites Wing’s deposition, which shows evidence that when Wing

25 was hired, she was aware that AutoZone had a policy prohibiting sexual harassment. (Id. at

26

27

28

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1 66.) Wing knew that a procedure existed to report sexual harassment; however, she could

2 not recall exactly what that procedure entailed. (Id.)

3

The EEOC argues that there is no evidence Wing or Contreras received the handbook

4 prior to, or during the time Wing was being sexually harassed by Contreras. (Pl. SOF ¶ 181.)

5 The EEOC further contends there is no evidence Contreras himself ever received training on

6 AutoZone’s sexual harassment policy. (Id. ¶ 182.) Furthermore, the EEOC maintains that

7 there is no evidence that AutoZone trained anyone at the store manager level or below with

8 regard to sexual harassment beyond an initial issuance of the handbook containing the policy.

9 (Arias Dep. at 15-16.)

10

According to the record, the Court agrees that there is no evidence that Contreras

11 knew a sexual harassment policy existed at the time the initial harassment occurred. As to

12 Wing, there is evidence only as to her knowledge of “a policy” and that at some point during

13 her employment, she received the 2004 handbook. Therefore, although a sexual harassment

14 policy may have existed and may have been reasonable on its face, similar to the policy in

15 Kohler, there is no evidence in the instant case of adequate dissemination. As in Faragher,

16 a failure to disseminate can render a policy, reasonable on its face, insufficient to raise an

17 affirmative defense. Therefore, the Court finds that a legitimate question exists as to whether

18 AutoZone’s preventive measures were reasonable for the purpose of asserting a

19 Faragher/Ellerth affirmative defense, and consequently denies AutoZone’s motion for

20 summary judgment.

21

b. Remedial Measures

22

Assuming AutoZone established the first prong of the Faragher/Ellerth affirmative

23 defense, AutoZone must still establish that it took remedial measures to end the sexual

24 harassment.

25

The reasonableness of a remedy for sexual harassment depends on its ability to: (1)

26 stop harassment by the person who engaged therein and (2) persuade potential harassers to

27

28

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1 refrain from sexually harassing conduct. Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864,

2 875-876 (9th Cir. 2001) (citation omitted). The reasonableness of the remedial measure must

3 track the nature and/or severity of the alleged conduct. See Swenson v. Potter, 271 F.3d

4 1184, 1192-1193 (9th Cir. 2001). When the employer fails to undertake any remedial

5 measure, or where the remedial measure undertaken does not put an end to the current

6 harassment and deter future harassment, liability attaches for both the past harassment and

7 any future harassment. Nichols, 256 F.3d at 875-876.

8

AutoZone contends that, given the information presented, its efforts were reasonable

9 and sufficient to meet the remedial measure element of the Faragher/Ellerth affirmative

10 defense. The EEOC maintains that AutoZone’s efforts in both of the investigations fail to

11 meet its burden under Faragher/Ellerth. To evaluate the reasonableness of AutoZone’s

12 response to the first investigation, the Court must evaluate (1) what conduct AutoZone was

13 responding to and (2) what measures AutoZone took in response to the complaints of

14 harassment by the Plaintiff. See id. Three issues have been raised pertaining to the remedial

15 measures taken by AutoZone; the Court will address each individually.

16

I. Nature of the Harassment

17

Within weeks of being hired, Wing called Anderson, alleging she was being sexually

18 harassed by Contreras. (Wing Dep. at 105-106.) AutoZone claims she complained only of

19 verbal sexual harassment during this phone call. (Anderson Dep. at 49.) AutoZone further

20 contends that, during the subsequent interview at 2737 between the two, Wing complained

21 only of verbal sexual harassment. (Id. at 58.) Wing, however, contends that it was not

22 merely verbal harassment that she complained of. (Wing Dep. at 118.) She argues that her

23 complaint consisted of reports of physical harassment as well. Id. AutoZone claims Wing’s

24 testimony on the subject of what type of harassment is “clear,” and is limited to verbal

25 harassment. (Def.’s Reply in Supp. of its Mot. for Summ. J. at 5.) However, although

26 AutoZone argues Wing only reported verbal sexual harassment, it does acknowledge that

27

28

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1 Wing reported to Anderson the incident wherein Contreras “exposed himself” to her. (Id.

2 at 5 n.6.) The Court finds this act is not “clearly” verbal harassment. Id. Wing contends she

3 told Anderson that Contreras had “physically touched [her] in a sexual manner.” (Wing Dep.

4 at 118.) According to Wing, this interview was preserved in writing, where “[Anderson]

5 would write out a question and then [Wing] would answer it.” Id. at 117. AutoZone has

6 claimed this document has been lost, and therefore is unable to produce a record of the

7 interview. (Pl. SOF ¶ 137.)

8

AutoZone correctly notes that spoliation is a discovery offense. The EEOC’s request

9 for an adverse inference based on this and other lost documents came well after the discovery

10 deadline, therefore the Court will deny this request. However, without this document to

11 clarify a significant discrepancy in material factual recollections, the record consists of two

12 contradictory statements regarding what was said during the phone call and what was

13 reported and discussed at the subsequent interview. As the substance of these conversations

14 would be material in evaluating the reasonableness of the remedial measures taken by

15 AutoZone in response to Wing’s allegations, the discrepancy in material facts is sufficient

16 to establish a legitimate question of fact. The Court therefore denies AutoZone’s motion for

17 summary judgement on this issue.

18

ii. Method of Investigation

19

AutoZone argues the “pertinent legal issue is what Mr. Anderson did upon receiving

20 the [initial] report.” (Def.’s Reply in Supp. of its Mot. for Summ. J. at 5.) It is undisputed

21 that Anderson went to 2727 shortly after receiving the initial report and interviewed Wing.

22 (Def.’s Statement of Material Facts ¶ 31.) During the interview, Wing provided Anderson

23 with the names of five employees of 2737 who she claimed would corroborate her

24 allegations. (Anderson Dep. at 60-61.) The names included: Luz Hernandez (now Luz

25 Gomez), Steve Corbeil, Raiza Bracho, Hector Barajas, and Justin Pierce. Id. AutoZone

26 claims Anderson interviewed all five of these potential witnesses, as well as Contreras. (Id.

27

28

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1 at 65-66.) Each of these interviews were allegedly identical in form: “getting a verbal

2 statement and then following that up in writing with where [sic] [Anderson] would write

3 questions and [the employee] would write answers.” Id. at 67. According to AutoZone,

4 Anderson gathered all of these statements and sent them to AutoZoner Relations (part of

5 AutoZone’s corporate counsel). Id. at 76-77. Anderson claims the allegations could not be

6 corroborated. Id. at 70.

7

The EEOC, however, claims a legitimate issue exists as to whether AutoZone

8 conducted a reasonable investigation because AutoZone has no records pertaining to Wing’s

9 sexual harassment claim, thereby prohibiting the EEOC, as well as this Court, from

10 evaluating its reasonableness. (Pl.’s Resp. to Def.’s Mot. for Summ. J. at 8.) Further, the

11 EEOC alleges Anderson’s investigation cannot be as complete as he has claimed. Id. Both

12 Luz Hernandez and Hector Barajas have stated that the only time they spoke to anyone

13 regarding sexual harassment between Wing and Contreras was “around the time Contreras

14 was fired.” (Barajas Dep. at 30; Gomez Declaration ¶ 8.) Contreras left AutoZone as a result

15 of a separate investigation of sexual harassment approximately seven months after Anderson

16 claims his initial investigation occurred. (Def.’s Statement of Material Facts ¶¶ 63-69.)

17

In response, AutoZone claims that a legitimate issue of material fact cannot be created

18 by someone’s inability to recall information. (Def.’s Reply in Supp. of its Mot. for Summ.

19 J. at 5 n.7.) For example, AutoZone claims that because Gomez and Barajas cannot

20 remember speaking with Anderson does not mean it did not occur. In support of its

21 assertion, AutoZone cites two unpublished opinions: Flores v. First Penn Pac. Life Ins., 215

22 F.3d 1332 (9th Cir. 2000) (not reported in F.3d) and Mercon Coffee Corp. v. Beanbag

23 Storage Co., 1992 WL 1352743 (N.D. Cal. 1992))2. In both Flores and Mercon Coffee, the

24

25 2This Court is not bound by unpublished opinions. Further, AutoZone’s reliance on
26 the aforementioned cases is misplaced, as even a cursory reading of the facts of those cases
27 reveals they are inapposite to the case before the Court.

28

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1 courts found the plaintiffs’ inability to recall a discussion or terms of a document were

2 directly contradicted by documentation that they had made those statements and were aware

3 of what they were doing when they did so. Mercon, 1992 WL 1352743, *1; Flores, 215 F.3d

4 at 1332, *1. In the present case, AutoZone’s inability to retain or locate the documentation

5 of Anderson’s investigations necessarily cannot provide the type of support the courts relied

6 on in AutoZone’s cited cases. The Court therefore denies AutoZone’s motion for summary

7 judgment on this issue.

8

iii. Sufficiency of Remedial Measures

9

The sufficiency of the remedial measures undertaken by AutoZone is entirely

10 dependent on the nature of the allegations. Swenson, 271 F.3d at 1192-1193. It is impossible

11 to evaluate the reasonableness of this element when the nature of the allegations remains

12 disputed. As this Court has ruled above that material questions remain with regard to what

13 the initial complaints made by Wing to Anderson were, the Court will deny AutoZone’s

14 motion for summary judgment on this issue.

15

2. Employee Unreasonably Failed to Take Advantage

16

The second element of the Faragher/Ellerth defense is met when an employer has a

17 complaint or reporting procedure designed to handle sexual harassment claims, and the

18 employee unreasonably fails to take advantage of it. Faragher, 542 U.S. at 807-808.

19 AutoZone argues that Wing’s “conduct in waiting to make an initial report and then failing

20 to make any subsequent report is unreasonable as a matter of law.” (Def.’s Mem. in Supp.

21 for Mot. for Summ. J. at 13.)

22

To bolster its position, AutoZone cite three cases to provide examples of employee

23 conduct that courts have deemed unreasonable. Hardage, 427 F.3d at 1188; Molly D., 339

24 F.3d at 1178; Molina v. Phoenix High School Dist., 2007 WL 1412530, *8 (D. Ariz. 2007)

25 (J. McNamee). In Hardage, the employee waited six (6) months to report the harassment;

26 the plaintiff in Molly D. waited an entire year. Wing, on the other hand, reported being

27

28

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1 sexually harassed to Jim Monti, the district manager responsible for 2737, “shortly after

2 [she] started working [at AutoZone]”, and then received Anderson’s phone number. (Wing

3 Dep. at 43; Def.’s Statement of Material Facts ¶ 19.) At most, Wing waited “a couple of

4 weeks” to call Anderson to report Contreras’s sexual harassment. (Def.’s Statement of

5 Material Facts ¶¶ 23-24.) In Molina, the employee “acknowledged receiving the [Employee

6 Conduct/Discipline] Handbook, reading the portions regarding Defendant's harassment

7 policy and understanding the procedure for reporting sexual harassment” and “admitted to

8 being aware of the policies and procedure set forth in the Handbook” and yet “did not follow

9 the reporting procedures set forth in the Handbook.” Molina, 2007 WL 1412530, *7-8. In

10 the instant case, there remains an issue as to when Wing received AutoZone’s handbook

11 which contained the sexual harassment policy.3 See discussion supra at 7-8. Assuming

12 arguendo that Wing did receive the handbook at the time she was hired, the evidence remains

13 that Wing was aware that steps existed to report sexual harassment, but could not recall what

14 those steps were. (Wing Dep. at 66) (emphasis added). This distinguishes Wing’s

15 “understanding” of the procedure and “awareness” of the reporting policies from the plaintiff

16 in Molina.

17

AutoZone further contends that Wing’s failure to make subsequent reports of the

18 ongoing sexual harassment constitutes unreasonable failure. Wing alleges she left three

19 messages for Anderson following his initial investigation, however Anderson failed to return

20 her calls. (Wing Dep. at 144-150.) Anderson denies such messages existed. (Anderson Dep.

21 103-104.) Further, the Ninth Circuit has continuously held that “harassment is to be

22 remedied through actions targeted at the harasser, not at the victim.” Intlekofer v. Turnage,

23 973 F.2d 773, 780 (9th Cir. 1992) (emphasis in original); Nichols, 256 F.3d at 876

24 (employee’s failure to report further harassment was not a defense to liability). The Court

25

26

3Either the 2002 or 2004 handbook, as they are substantively identical regarding

27 sexual harassment policies.

28

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1 finds a genuine issue of material fact exists as to whether Wing acted reasonably in her

2 attempts to contact AutoZone, and consequently denies AutoZone’s motion for summary

3 judgment on this issue.

4

3. Presence of Tangible Employment Action

5

A tangible employment action constitutes a significant change in employment status,

6 such as hiring, firing, failing to promote, reassignment with significantly different

7 responsibilities, or a decision causing a significant change in benefits. Ellerth, 524 U.S. at

8 761. When bringing a suit against an employer in district court, “a plaintiff must have raised

9 that claim or a like and reasonably related claim in an administrative action.” Yamaguchi v.

10 U.S. Dept. of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997). This liberal reading of the

11 administrative charge has been recognized in the circuit for decades: “When an employee

12 seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial

13 complaint nevertheless may encompass any discrimination like or reasonably related to the

14 allegations of the EEOC charge . . .” Oubichon v. North Am. Rockwell Corp., 482 F.2d 569,

15 571 (9th Cir. 1973) (recognizing federal subject matter jurisdiction over claims of action not

16 explicit in the original EEOC charge). Title VII sets up a “remedial scheme in which

17 laypersons, rather than lawyers, are expected to initiate the process.” See Fed. Exp. Corp.

18 v. Holowecki, 552 U.S. ____, 128 S.Ct. 1147, 1158 (2008) (citations omitted).

19

The EEOC alleges AutoZone “withdr[ew] Ms.Wing’s promotion to a [PSM]

20 position.” (Compl. ¶ 10.) This claim is essentially identical to a failure to promote claim,

21 which is explicitly recognized in Ellerth as a tangible employment action. Ellerth, 524 U.S.

22 at 761. AutoZone challenges the EEOC’s assertion of a failure to promote claim as a

23 tangible employment action. (Def.’s Reply in Supp. of its Mot. for Summ. J. at 6.) It

24 correctly states that Wing originally alleged she was “demoted from [her] [PSM] position.”

25 (Wing Dep. Ex 6.) AutoZone is correct that a “demotion claim is completely distinct from

26 that of a failure to promote claim.” (Def.’s Reply in Supp. of its Mot. for Summ. J. at 7)

27

28

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1 (emphasis in original). However, given the liberal interpretation mandated by precedent, this

2 Court will not hold a lay-complainant to a practitioner’s standard when making allegations

3 in an EEOC complaint that may, unbeknownst to the claimant, have a specific meaning as

4 a legal term of art. Consequently, this Court finds a claim of retaliatory demotion to be “like

5 or reasonably related” to a claim of retaliatory failure to promote. Serpe v. Four-Phase Sys.,

6 Inc., 718 F.2d 935, 937 (9th Cir. 1983).

7

The only support AutoZone offers for its position is an unreported, district case:

8 EEOC v. Rest. Mktg. Assoc., Inc. 1983 WL 608 (D. Ariz. 1983). The Court finds

9 AutoZone’s reliance on this case misplaced. In Restaurant Marketing Associates, the court

10 erroneously mentioned the “Ninth Circuit has never been faced with a case which presents

11 the question of whether charges outside those asserted in the determination letter are

12 allowable in a subsequent action by the E.E.O.C.” Id., *1. The Circuit had, two months prior

13 to the decision in Restaurant Marketing Associates, held “[t]he EEOC charges must be

14 construed with utmost liberality since they are made by those unschooled in the technicalities

15 of formal pleading.” Serpe, 718 F.2d at 937. Within the case AutoZone has cited, the court

16 quoted a Sixth Circuit opinion, “[i]t is clear that the recitation of a claim in the determination

17 letter is not a prerequisite to the assertion of such claim by a private litigant. This Court has

18 not been presented with a sufficient justification for applying a different rule with regard to

19 claims made by the E.E.O.C. We therefore decline to hold that the recitation of each claim

20 of discrimination is a rigid prerequisite to the assertion of those claims by the E.E.O.C. at

21 trial.” Rest. Mktg. Assoc., Inc. 1983 WL 608, *1-2.

22

The Court finds the alleged reasons for AutoZone’s failure to promote Wing, if

23 proven, would constitute a tangible employment action, thereby preventing AutoZone from

24 raising the defense set forth in Faragher/Ellerth. Questions of material fact remain regarding

25 why Wing was not promoted to a PSM position. Therefore, the Court will deny AutoZone’s

26 motion for summary judgment on this issue.

27

28

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1

C. Retaliation

2

Employers are prohibited from discriminating or retaliating against an employee if

3 that employee has “opposed any . . . unlawful employment practice . . . [or] because he has

4 made a charge, testified, assisted, or participated in any manner in an investigation . . .” 42

5 U.S.C.A. § 2000e-3(a). To succeed on a retaliation claim, “a plaintiff must show that a

6 reasonable employee would have found the challenged action materially adverse, which . .

7 .means it well might have dissuaded a reasonable worker from making or supporting a charge

8 of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

9

To establish a prima facie case of retaliation, a plaintiff must show (1) the plaintiff

10 engaged in a protected action, such as filing a charge with the EEOC, (2) the defendant

11 subjected the plaintiff to an adverse employment action, and (3) a causal link exists between

12 the protected action and the adverse action. See Hardage, 427 F.3d at 1188 (citations

13 omitted). If the plaintiff can make a prima facie claim, the burden shifts to the defendant to

14 articulate a legitimate, nondiscriminatory reason for the adverse action. Manatt v. Bank of

15 Am., NA, 339 F.3d 792, 800 (9th Cir. 2003) (citation omitted). When the defendant

16 articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the

17 given reason was merely a pretext for defendant’s discriminatory motive. Id. “[O]nly

18 non-trivial employment actions that would deter reasonable employees from complaining

19 about Title VII violations will constitute actionable retaliation.” Hardage, 427 F.3d at 1188.

20

Wing’s reporting to her superiors of the alleged harassment and the subsequent

21 reporting to the EEOC, as recognized in Hardage, meets the criteria of a protected action.

22 Wing believes she was denied a promotion. If she subjectively believed the denial was a

23 punitive measure resulting from her complaints, it “might have dissuaded a reasonable

24 worker from making or supporting a charge of discrimination” and constitute an adverse

25 employment action. Wing alleges that she was told by superiors at AutoZone on three

26 separate occasions that the reason she was not being promoted was due to her reporting of

27

28

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1 sexual harassment. (Pl’s SOF ¶¶ 113, 118, 119.) In response, AutoZone requests dismissal,

2 claiming, without further proof or argument, “the EEOC has no evidence of any causal

3 connection between any alleged adverse employment action and protected activity.” (Def.’s

4 Reply in Supp. of its Mot. for Summ. J. at 8.) It has articulated no legitimate,

5 nondiscriminatory reason for the action. Assuming all facts in favor of the nonmovant, as

6 the Court is required to do, this would constitute a causal link between the protected

7 complaint and the adverse employment action. Because AutoZone failed to articulate a

8 legitimate, nondiscriminatory reason, AutoZone’s motion for summary judgment will be

9 denied.

10

CONCLUSION

11

In light of the reasons set forth above,

12

IT IS HEREBY ORDERED DENYING Defendants’s Motion for Summary

13 Judgment. (Dkt. 79.)

14

IT IS FURTHER ORDERED DENYING the EEOC’s request for an adverse

15 inference. (Dkt. 103.)

16

IT IS FURTHER ORDERED DENYING as MOOT EEOC’s Motions to Strike

17 (Doc. 108 and 112).4

18

DATED this 10th day of September, 2008.

19

20

21

22

23

24

4 The Court finds that based on the supplementary briefs provided to the court,

25 Handbook 2002 and Handbook 2004 are substantively identical, and therefore the failure of

AutoZone to initially provide Handbook 2002 amounts to harmless error. Furthermore, the 26 Court finds that a surreply is not necessary as the Court has addressed and resolved the issues

27 within the summary judgment discussion, supra.

28

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 </s> 1 WO

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
9

10

Plaintiff,

11 v.

12 AUTOZONE, INC., a Nevada corporation,
13 Defendant.
14

) No. CV 06-926-PHX-SMM ) ) ORDER ) ) ) ) ) ) ) ) ) )

15 Before the Court is Defendant Autozone Inc.’s Motion for Clarification and
16 Incorporated Memorandum in Support (Doc. 144). Defendant requests clarification
17 regarding the Court’s recent Memorandum of Decision and Order addressing one of
18 Defendant’s Motions in Limine (Doc. 143).
19 Defendant’s Motion in Limine sought to exclude evidence of Defendant’s net
20 worth, financial condition, size, and/or market share “during the liability phase of the
21 trial” and “unless and until the EEOC first produces sufficient evidence that warrants an
22 instruction on punitive damages.” (Doc. 127) In the Memorandum of Decision and
23 Order, the Court found evidence of Defendant’s net worth was relevant to the issue of
24 punitive damages and thus, admissible at trial. However, evidence of Defendant’s market
25 share and size was deemed inadmissible. Defendant now seeks clarification regarding the
26 timing of the introduction of such net worth evidence and whether the EEOC can use this
27 evidence in its opening statement or before it produces evidence warranting a punitive
28 damages instruction.

1

After reviewing the motion filed by Defendant, and good cause appearing,

2

IT IS HEREBY ORDERED GRANTING Defendant Autozone Inc.’s Motion

3 for Clarification and Incorporated Memorandum in Support (Doc. 144). In an effort to

4 clarify its prior ruling, the Court finds that evidence of Defendant’s net worth is

5 potentially relevant to the amount of punitive damages in this case and as a result, such

6 evidence is admissible. Once the Court determines there is sufficient evidence to submit

7 the issue of punitive damages to the jury, such evidence will be admitted subject to a

8 limiting instruction.

9

DATED this 15th day of January, 2009.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 </s> Case 2:06-cv-00926-SMM Document 199 Filed 06/01/09 Page 1 of 3

1 WO

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
9

10

Plaintiff,

11 v.

12 AUTOZONE, INC., a Nevada corporation,
13 Defendant.
14

) No. CV 06-926-PHX-SMM ) ) ORDER ) ) ) ) ) ) ) ) ) )

15

At the Final Pre-Trial Conference held on May 26, 2009, the Court provided the

16 attorneys for both sides with a draft of the preliminary jury instructions for the case.

17 Defendant objected to the instruction concerning an employer’s vicarious liability for a

18 hostile work environment caused by a supervisor. Defendant claims that a tangible

19 employment action was never pled by Plaintiff, and thus, the portion of the instruction

20 asking the jury to determine whether Plaintiff has proved that Wing suffered a tangible

21 employment action is incorrect. Defendant subsequently filed a Trial Brief regarding this

22 issue (Doc. 178), and Plaintiff filed a responsive Trial Brief (Doc. 196).

23

After reviewing the Ninth Circuit model instruction, the parties’ briefing, and

24 applicable case law, the Court finds that its instruction is proper as it relates to the

25 employer’s liability and tangible employment actions. In Burlington Industries Inc. v.

26 Ellerth, 524 U.S. 742 (1988) and also in Faragher v. City of Boca Raton 524 U.S. 775

27 (1998), the U.S. Supreme Court articulated when an employer is subject to vicarious

28

Case 2:06-cv-00926-SMM Document 199 Filed 06/01/09 Page 2 of 3

1 liability for a supervisor’s sexually harassing conduct. The Supreme Court in those cases

2 held that—

3

[a]n employer is subject to vicarious liability to a victimized employee for

an actionable hostile environment created by a supervisor with immediate

4

(or successively higher) authority over the employee. When no tangible

employment action is taken, a defending employer may raise an affirmative

5

defense to liability or damages, subject to proof by a preponderance of the

evidence. The defense comprises two necessary elements: (a) that the

6

employer exercised reasonable care to prevent and correct promptly any

sexually harassing behavior, and (b) that the plaintiff employee

7

unreasonably failed to take advantage of any preventive or corrective

opportunities provided by the employer or to avoid harm otherwise.

8

Burlington, 524 U.S. at 765; Faragher, 524 U.S. at 807. A tangible employment action is

9

defined as a “significant change in employment status, such as hiring, firing, failing to

10

promote, reassignment with significantly different responsibilities, or a decision causing a

11

significant change in benefits.” Burlington, 524 U.S. at 761.

12

The new rule announced in Burlington and Faragher overturned prior Ninth Circuit

13

precedent as to employer liability for Title VII sexual harassment by a supervisor. See

14

Burrell v. Star Nursery, Inc., 170 F.3d 951, 955-56 (9th Cir. 1999). If the harassment is

15

actionable and the harasser possesses supervisory authority over the alleged victim, an

16

employer is vicariously liable for the harassment. Id. at 956. The presumption of

17

vicarious liability can be overcome only upon a finding that the alleged harassment has

18

not resulted in a tangible employment action and then only if the two-prong affirmative

19

defense is proven by the employer. Id.

20

The Ninth Circuit model instruction guides the jury through this analysis (Model

21

Instruction 10.2B). The model instruction first asks the jury to determine whether

22

Plaintiff has proved that Ms. Wing suffered a tangible employment action. If such proof

23

is found, then Defendant is vicariously liable for the conduct of supervisor Jose

24

Contreras, and Defendant’s affirmative defense is not considered. However, if the jury

25

determines that Plaintiff has not proved that Wing suffered a tangible employment action,

26

it can consider whether Defendant has proved its affirmative defense.

27

28

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Case 2:06-cv-00926-SMM Document 199 Filed 06/01/09 Page 3 of 3

1

Indeed, in its ruling on Defendant’s summary judgment motion, the Court

2 explicitly found that “the alleged reasons for AutoZone’s failure to promote Wing, if

3 proven, would constitute a tangible employment action, thereby preventing AutoZone

4 from raising the defense set forth in Faragher/Ellerth.” (Doc. 115, p.15). The Court also

5 found that questions of material fact existed as to why Wing was not promoted to a Parts

6 Service Manager position. In light of the Court’s finding, the Court will leave to the jury

7 the question of fact whether Defendant’s alleged failure to promote is a tangible

8 employment action, and if it is not, whether Defendant has proved its affirmative defense.

9

IT IS HEREBY ORDERED that the Court will give the preliminary jury

10 instruction concerning an employer’s vicarious liability for a hostile work environment

11 caused by a supervisor.

12

DATED this 1st day of June, 2009.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 </s> Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 1 of 9

1 WO

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
9

10

Plaintiff,

11 v.

12 AUTOZONE, INC., a Nevada corporation,
13 Defendant.
14

) No. CV 06-926-PHX-SMM ) ) ORDER ) ) ) ) ) ) ) ) ) )

15

The Court held a jury trial in this case from June 2, 2009 to June 10, 2009. On June

16 10, 2009, the jury found in favor of Plaintiff Equal Employment Opportunity Commission

17 (“Plaintiff”) on its hostile work environment claim against Defendant Autozone, Inc.

18 (“Defendant”). However, the jury found against Plaintiff and in favor of Defendant on the

19 retaliation claim. The jury awarded Plaintiff $15,000 in compensatory damages and $50,000

20 in punitive damages, for a total award of $65,000. In awarding damages to Plaintiff, the jury

21 found that Defendant had failed to prove its affirmative defense to the hostile work

22 environment claim as well as to punitive damages.

23

Before the Court is Defendant’s Renewed Motion for Judgment as a Matter of Law,

24 or Alternatively, Motion for New Trial, filed on June 22, 2009 (Doc. 230). Plaintiff

25 responded 1 on July 9, 2009 (Doc. 235), and Defendant replied on July 15,2009 (Doc. 237).

26

27

1Defendant claims that Plaintiff’s response was untimely, and thus, its motion is

28 uncontested. Plaintiff had ten (10) days from the date of service of Defendant’s motion

within which to file its response. The date that the motion was served is excluded from this

Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 2 of 9

1 The matter is now fully briefed and ready for decision. For the reasons set forth below, the

2 Court will deny Defendant’s motion.

3

BACKGROUND

4

Plaintiff represented Stacy Wing, an employee at Autozone Store 2737 in Mesa,

5 Arizona. At the time that Ms. Wing was hired in 2003, Jose Contreras was the manager of

6 store 2737. Plaintiff claimed that shortly after Ms. Wing began working, she was subjected

7 to continual verbal and physical sexual harassment by Mr. Contreras. Plaintiff brought this

8 Title VII discrimination case against Defendant alleging hostile work environment and

9 retaliation. Plaintiff claimed that Defendant subjected Ms. Wing to unlawful sexual

10 harassment that created a hostile work environment. Additionally, Plaintiff claimed that

11 Defendant retaliated against Ms. Wing for reporting the sexual harassment, or for

12 participating in the investigation of the harassment after another employee complained about

13 it. This retaliation consisted of withdrawing Ms. Wing’s promotion to the position of Parts

14 Sales Manager. Pursuant to Title VII, Plaintiff sought the following remedies: (1) back pay;

15 (2) pecuniary and nonpecuniary compensatory damages; (3) punitive damages; and (4) non-

16 monetary relief, including injunction, posting of notice, training, and revision of policies.2

17

Defendant denied both of these claims. Defendant affirmatively alleged that it

18 exercised reasonable care to prevent and promptly correct the sexually harassing behavior,

19 and that Ms. Wing unreasonably failed to take advantage of any preventive or corrective

20

21 period. See Fed. R. Civ. P. 6(a)(1). When a period is less than eleven (11) days,

22 intermediate Saturdays, Sundays, and legal holidays are excluded from this period. Fed. R. Civ. P. 6(a)(2). Furthermore, an additional three (3) days are added after the period would

23 otherwise expire. Fed. R. Civ. P. 6(d). Defendant’s motion was served on June 22, 2009.

24

Therefore, Plaintiff’s response was due on July 10, 2009. As it was filed on July 9, 2009, the Court finds that the response was timely filed, and it will consider the arguments presented

25 therein.

26

27

2As the jury found against Plaintiff on its retaliation claim, back pay was not available.

Plaintiff has filed a separate motion for equitable relief, which will be addressed by the Court

28 in a subsequent Order.

- 2 -

Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 3 of 9

1 opportunities provided by Defendant or otherwise failed to avoid harm. Defendant also

2 affirmatively alleged that the actions of Mr. Contreras were contrary to Defendant’s good

3 faith efforts to comply with Title VII, and thus, no punitive damages should be awarded.

4

DISCUSSION

5

Defendant renews its motion for judgment as a matter of law on the hostile work

6 environment claim and punitive damages (Doc. 230). Defendant argues that Plaintiff failed

7 to prove that Defendant did not exercise reasonable care to prevent and promptly correct the

8 sexually harassing behavior and that Ms. Wing took advantage of these preventive or

9 corrective opportunities or otherwise failed to avoid harm. (Id. at 2-13.) Defendant also

10 argues that Plaintiff failed to prove that Defendant did not make good faith efforts to comply

11 with Title VII, and thus, it should not be liable for punitive damages. (Id. at 13-16.)

12 I. Renewed Motion for Judgment as a Matter of Law

13

“Judgment as a matter of law is appropriate when the evidence, construed in the light

14 most favorable to the nonmoving party, permits only one reasonable conclusion, which is

15 contrary to the jury’s verdict.” Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1161

16 (9th Cir. 1997); see also White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002). Thus,

17 judgment as a matter of law may be granted “[i]f a party has been fully heard on an issue

18 during a jury trial and the court finds that a reasonable jury would not have a legally

19 sufficient evidentiary basis to find for the party on that issue . . .” Fed. R. Civ. P. 50(a)(1);

20 Juhnke v. EIG Corp., 444 F.2d 1323, 1325 (9th Cir. 1971) (noting that directed verdict and

21 motion for judgment notwithstanding the verdict “are measured by the same standards as the

22 latter is merely a renewal of the former”).

23

In considering a Rule 50(b) motion, “the court must draw all reasonable inferences

24 in favor of the nonmoving party, and it may not make credibility determinations or weigh the

25 evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However,

26 because the Court reviews the Record as a whole, the Court “should give credence to the

27 evidence favoring the nonmovant as well as that evidence supporting the moving party that

28 is uncontested and unimpeached, at least to the extent that that evidence comes from

- 3 -

Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 4 of 9

1 disinterested witnesses.” Id. at 151 (citation and internal quotation marks omitted).

2 Therefore, the Court’s role is not to substitute its view of the evidence for that of the jury.

3 Winarto v. Toshiba Am. Elecs. Components, 274 F.3d 1276, 1283 (9th Cir. 2001). When

4 two possible sets of inferences are supported by the record, “the inferences that support the

5 jury’s verdict of course win the day.” Id. at 1287.

6

A. Affirmative Defense to Hostile Work Environment

7

1. Employer Exercised Reasonable Care to Prevent and Correct Promptly

Sexually Harassing Behavior

8

“[A]n employer is subject to vicarious liability to a victimized employee for an

9

actionable hostile environment created by a supervisor with immediate (or successively

10

higher) authority over the employee.” Faragher v. City of Baca Raton, 524 U.S. 775, 807

11

(1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). However, the U.S.

12

Supreme Court provides a defense against vicarious liability:

13

“[A] defending employer may raise an affirmative defense to liability or

14

damages, subject to proof by a preponderance of the evidence. . . The defense

comprises two necessary elements: (a) that the employer exercised reasonable

15

care to prevent and correct promptly any sexually harassing behavior, and

(b)that the plaintiff employee unreasonably failed to take advantage of any

16

preventive or corrective opportunities provided by the employer or to avoid

harm otherwise . . . No affirmative defense is available, however, when the

17

supervisor's harassment culminates in a tangible employment action.”

18 Faragher, 542 U.S. at 807-808; Ellerth, 542 U.S. at 765.

19

The affirmative defense to Plaintiff’s hostile work environment claim relied heavily

20 on the facts. While Defendant had an anti-harassment policy in effect, Plaintiff presented

21 evidence that the policy was not always effectively implemented. For example, Conteras’

22 personnel file did not contain a handbook acknowledgment form or evidence that he was

23 trained on sexual harassment. Ms. Wing’s personnel file had a handbook acknowledgment

24 signed in March 2004, approximately a year after she started working for Defendant.

25

Additionally, as to corrective action, the evidence presented by the parties as to the

26 investigation undertaken by Defendant in response to Ms. Wing’s harassment complaints was

27 highly contested. Ms. Wing and Defendant’s Regional Human Resources Manager, Scott

28 Anderson, testified to very different accounts of the June 2003 and December 2003

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Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 5 of 9

1 investigations. This case ultimately came down to a classic “he said-she said” scenario.

2 While the credibility of Ms. Wing and Mr. Anderson lay at the heart of the case, the Court

3 does not take credibility into account. When considering Defendant’s Rule 50 motion, the

4 Court must view the evidence in the light most favorable to Plaintiff and draw all reasonable

5 inferences in its favor.

6

First, the evidence was disputed as to how many employees other than Ms. Wing, if

7 any, Mr. Anderson interviewed during his June 2003 investigation. Two of the alleged

8 witnesses, Luz Hernandez and Hector Barajas, testified that they did not remember being

9 interviewed by Mr. Anderson. Another witness, Steve Corbeil, testified that he never worked

10 with Mr. Contreras and never met Mr. Anderson. Second, Ms. Wing disputed Mr.

11 Anderson’s claim that she was given the option to transfer to another store following her

12 harassment complaint in June 2003. Third, Ms. Wing testified that Mr. Anderson failed to

13 return her phone calls when she tried to report continuing harassment after the June 2003

14 investigation. Finally, the parties stipulated that certain evidence was lost by Defendant,

15 including investigative files, witness statements, and the videotape of the December 2003

16 incident of harassment.

17

Based on the evidence and testimony presented at trial, the Court cannot conclude

18 “that a reasonable jury would not have a legally sufficient evidentiary basis” for finding that

19 Defendant had not proved this first prong of its affirmative defense. See Fed. R. Civ. P.

20 50(a)(1).

21

2. Employee Unreasonably Failed to Take Advantage of Any Preventive

22

or Corrective Opportunities or Avoid Harm

23

The second prong of the affirmative defense also was heavily fact-driven. It was

24 undisputed at trial that Ms. Wing complained about sexual harassment to three individuals:

25 store manager Mr. Contreras, District Manager Jim Monti, and Regional Human Resources

26 Manager, Mr. Anderson. These three individuals were identified in Defendant’s policy as

27 appropriate contacts for a sexual harassment complaint. Also, Ms. Wing testified that she

28 attempted to contact Mr. Anderson on three occasions after her initial June 2003 complaint

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Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 6 of 9

1 regarding continuing harassment. However, Ms. Wing contended that Mr. Anderson never

2 returned her phone calls. Mr. Anderson, for his part, disputed that he received any phone

3 calls or messages from Ms. Wing after his June 2003 investigation. The jury could have

4 credited Ms. Wing’s testimony over Mr. Anderson’s and found that Ms. Wing tried to take

5 advantage of Defendant’s sexual harassment complaint procedures.

6

The Court cannot find “that a reasonable jury would not have a legally sufficient

7 evidentiary basis” for finding that Defendant had not proved its affirmative defense to the

8 hostile work environment claim. See Fed. R. Civ. P. 50(a)(1); Juhnke, 444 F.2d at 1325.

9 Because conflicting inferences could have been drawn from the facts, the affirmative defense

10 properly went to the jury.

11

B. Affirmative Defense to Punitive Damages

12

Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, Defendant asks the

13 Court to grant judgment in its favor as to punitive damages. To award punitive damages,

14 Plaintiff must prove two elements: (1) Defendant acted with knowledge that its actions may

15 have violated federal law and (2) employee who discriminated against Ms. Wing were

16 managerial agents acting within the scope of their employment. Kolstad v. Am. Dental

17 Assoc., 527 U.S. 526, 535-36 (1999). However, “an employer may not be vicariously liable

18 for the discriminatory employment decisions of managerial agents where these decisions are

19 contrary to the employer’s good faith efforts to comply with Title VII.” Id. at 545.

20

Defendant first argues that the evidence presented at trial was insufficient that a

21 “managerial agent” acted within the scope of his employment while committing the alleged

22 discriminatory acts. (Doc. 230, 14:9-13.)

23

Defendant made a Rule 50(a) motion at the close of the evidence. Although

24 Defendant asked the Court to enter judgment as a matter of law on punitive damages,

25 Defendant did not argue that Plaintiff failed to present legally sufficient evidence that Mr.

26 Contreras and Mr. Anderson were managerial agents acting within the scope of their

27 employment. (Tr. 602-604, 743.) The bases for Defendant’s motion were that Plaintiff had

28 failed to present legally sufficient evidence that Mr. Contreras and Mr. Anderson acted with

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Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 7 of 9

1 malice or reckless indifference and that their decisions were not contrary to Defendant’s good

2 faith efforts to comply with Title VII. (Id.) “A party cannot raise arguments in its post-trial

3 motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict

4 Rule 50(a) motion.” Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003).

5 Because Defendant failed to argue that Plaintiff had presented insufficient evidence that a

6 managerial agent acted within the scope of his employment when committing the

7 discriminatory acts, Defendant may not make that argument now. Id.

8

Defendant next argues that it cannot be liable if it can prove it engaged in good faith

9 efforts to comply with Title VII and the individual who discriminated against Ms. Wing acted

10 in a manner contrary to Defendant’s good-faith efforts. (Doc. 230, 14:14-16:2.) However,

11 there was a legally sufficient evidentiary basis for a jury to find against Defendant on its

12 punitive damages affirmative defense. A jury could have concluded that Defendant’s failure

13 to maintain critical evidence, including the investigative files and surveillance video, did not

14 demonstrate a good faith effort to comply with Title VII. Similarly, the jury could have

15 concluded that Mr. Anderson’s failure to properly investigate Ms. Wing’s complaint and

16 return her phone calls also demonstrated a lack of good faith by Defendant.

17 II. Motion for New Trial

18

Alternatively, Defendant asks the Court to grant a new trial under Rule 59(a) on

19 Plaintiff’s hostile work environment claim and punitive damages. (Id. at 2 n.1.)

20

Under Rule 59(a) of the Federal Rules of Civil Procedure, the court may grant a new

21 trial “after a jury trial, for any reason for which a new trial has heretofore been granted . . .”

22 Fed. R. Civ. P. 59(a)(1)(A). As “Rule 59 does not specify the grounds on which a motion

23 for a new trial may be granted,” the court is bound by historically recognized grounds.

24 Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). These grounds

25 include “that the verdict is against the weight of the evidence, that the damages are excessive,

26 or that, for other reasons, the trial was not fair to the party moving.” Molski v. M.J. Cable,

27 Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Montgomery Ward & Co. v. Duncan, 311

28 U.S. 243, 251 (1940)); Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493,

- 7 -

Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 8 of 9

1 510 n.15 (9th Cir. 2000) (“The trial court may grant a new trial only if the verdict is contrary

2 to the clear weight of the evidence, is based upon false or prejurious evidence, or to prevent

3 a miscarriage of justice.”); see also Union Oil Co. v. Terrible Herbst, Inc., 331 F.3d 735, 742

4 (9th Cir. 2003).

5

While the court may weigh the evidence and assess the credibility of witnesses, it may

6 not grant a new trial “merely because it might have come to a different result from that

7 reached by a jury.” Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176 (9th Cir.

8 1990) (citation omitted); see also Union Oil Co., 331 F.3d at 743 (“It is not the courts’ place

9 to substitute our evaluations for those of the jurors.”). Although the court does not approve

10 of miscarriages of justice, “a decent respect for the collective wisdom of the jury, and for the

11 function entrusted to it in our system, certainly suggests that it most cases the judge should

12 accept the findings of the jury, regardless of his own doubts in the matter.” Landes Const.

13 Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987) (citations omitted).

14

Having considered all the evidence presented at trial, the Court does not conclude

15 that a new trial is warranted. As to the hostile work environment claim, the undisputed

16 evidence presented at trial showed that Ms. Wing was subjected to sexual harassment by Mr.

17 Contreras when he grabbed Ms. Wing’s head and forced it towards his crotch. The evidence

18 also suggested that while Defendant had a sexual harassment policy, it was not effectively

19 implemented in every instance. Witnesses’ testimony also suggested that Mr. Anderson’s

20 investigations of Ms. Wing’s sexual harassment complaints lacked thoroughness. Mr.

21 Anderson testified that he interviewed five employees in an attempt to corroborate Ms.

22 Wing’s complaint. However, several of the employees supposedly interviewed by Mr.

23 Anderson testified that they had not spoken with him. Furthermore, the parties stipulated that

24 certain evidence was lost by Defendant, including investigative files, witness statements, and

25 the videotape of the December 2003 incident of harassment. From this and other evidence,

26 the jury could have concluded that Defendant created a hostile work environment and that

27 Defendant did not prove its affirmative defense.

28

Likewise, as to punitive damages, the Court concludes that a new trial is not warranted.

- 8 -

Case 2:06-cv-00926-SMM Document 239 Filed 07/24/09 Page 9 of 9

1 Testimony at trial indicated that Mr. Contreras sexually harassed Ms. Wing on at least one

2 occasion after which he gazed into the security camera and laughed. For his part, Mr.

3 Anderson failed to throughly investigate Ms. Wing’s allegations and to return her phone

4 calls. Furthermore, Defendant stipulated that it failed to maintain important evidence in the

5 case, further negating its argument that it engaged in good-faith efforts to comply with Title

6 VII.

7

The issue is not whether the Court would have reached the same conclusion as the

8 jury, but whether the Court is left with a definite and firm conviction that a mistake has been

9 committed. Mindful of the respect that must be afforded the collective wisdom of the jury,

10 the Court does not conclude that such a mistake occurred in this case.

11

Accordingly,

12

IT IS HEREBY ORDERED DENYING Defendant’s Renewed Motion for

13 Judgment as a Matter of Law, or Alternatively, Motion for New Trial (Doc. 230).

14

DATED this 24th day of July, 2009.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 </s> Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 1 of 9

1 WO

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
9

10

Plaintiff,

11 v.

12 AUTOZONE, INC., a Nevada corporation,
13 Defendant.
14

) No. CV 06-926-PHX-SMM ) ) ORDER ) ) ) ) ) ) ) ) ) )

15

Before the Court is Plaintiff’s Motion to Amend Judgment to Add Equitable Relief,

16 filed on June 25, 2009 (Doc. 232). Defendant responded on July 8, 2009 (Doc. 234), and

17 Plaintiff replied on July 20, 2009 (Doc. 238). The motion is now fully briefed and ready for

18 decision.

19

On June 10, 2009, the jury returned a verdict in Plaintiff’s favor on the hostile work

20 environment claim but found against Plaintiff on the retaliation claim. The jury awarded

21 Plaintiff $15,000 in compensatory damages and $50,000 in punitive damages (Doc. 216).

22 On June 11, 2009, judgment was entered (Doc. 217). On June 25, 2009, Plaintiff filed the

23 instant motion seeking to amend the judgment to include various forms of equitable relief

24 (Doc. 232).

25

Preliminarily, Defendant objects to Plaintiff’s motion based upon Plaintiff’s alleged

26 failure to include the requested relief in either the Complaint or Final Pretrial Order (Doc.

27 234, 4:16-5:17). In the Complaint, Plaintiff asked the Court for the following relief:

28

(1) Grant a permanent injunction enjoining the Defendant . . . from engaging

in any employment practice which discriminates on the basis of sex.

Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 2 of 9

1

(2) Order the Defendant to institute and carry out policies, practices, and

programs which provide equal employment opportunities for female applicants

2

and employees, and which eradicate the effects of their past unlawful

employment practices.

3

(Doc. 1, p.3). While the request for relief in the Complaint is broad in its scope, the Final

4

Pretrial Order asked for the specific relief requested by Plaintiff here, including

5

(1) training on sexual harassment and retaliation; (2) posting of a notice

6

regarding the company’s policies against discrimination and indicating to

whom reports can be made; (3) updating of policies proscribing harassment

7

and retaliation and policies pertaining to investigation; (4) providing letter of

apology to Ms. Wing; (5) providing letter of reference to Ms. Wing; (6)

8

creating and disseminating Zero Tolerance Policy regarding sexual harassment

and retaliation; [and] (7) reporting requirements to ensure non-monetary relief

9

is implemented.

10 (Doc. 179, 17:8-17) The Ninth Circuit has held that “[a] pretrial order generally supersedes

11 the pleadings, and the parties are bound by its contents.” Patterson v. Hughes Aircraft Co.,

12 11 F.3d 948, 950 (9th Cir. 1993) (citations omitted); DP Aviation v. Smiths Indus. Aerospace

13 & Def. Sys., Ltd., 268 F.3d 829, 842 n.8 (9th Cir. 2001) (quoting Patterson). The Final

14 Pretrial Order was the document governing the scope of the trial, and the Court finds that

15 Plaintiff’s requested relief falls within the scope of that requested in the Final Pretrial Order.

16 Thus, the Court will not deny Plaintiff’s motion for this reason.

17

Plaintiff requests several types of non-monetary equitable relief. When an employer

18 engages in an unlawful employment practice, a court may “enjoin [the employer] from

19 engaging in such unlawful employment practice, and order such affirmative action as may

20 be appropriate, which may include . . . any . . . equitable relief as the court deems

21 appropriate.” 42 U.S.C. § 2000e-5(g)(1). “[T]he district court has not merely the power but

22 the duty to render a decree which will so far as possible eliminate the discriminatory effects

23 of the past as well as bar like discrimination in the future.” Albemarle Paper Co. v. Moody,

24 422 U.S. 405, 418 (1975) (citation omitted). “Generally, a person subjected to employment

25 discrimination is entitled to an injunction against future discrimination, unless the employer

26 proves it is unlikely to repeat the practice.” EEOC v. Goodyear Aerospace Corp., 813 F.2d

27 1539, 1544 (9th Cir. 1987) (citations omitted). The employer must demonstrate that there

28 is no reasonable expectation that the wrong will be repeated; a failure to make such a

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Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 3 of 9

1 showing renders an injunction mandatory. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1519

2 (9th Cir. 1989), overruled on other grounds, Burrell v. Star Nursery, Inc., 170, F.3d 951 (9th

3 Cir. 1999).

4

Plaintiff first requests that the Court permanently enjoin Defendant from

5 “discriminating against any employee based on sex, including sexual harassment” (Doc. 232,

6 3:1-3). Such an injunction would “(1) instruct [Defendant] that it must comply with federal

7 law, [and] (2) subject it to the contempt power of the federal courts if it commits future

8 violations[.]” (Id. 3:3-5 (quoting Goodyear, 813 F.2d at 1544)). The Court will deny this

9 request, as Defendant has satisfied its burden to demonstrate that a violation is unlikely to

10 recur. There is no evidence of any other individual besides Stacy Wing at store 2737 who

11 was subjected to sexual harassment. Furthermore, neither the harrasser Jose Contreras nor

12 the Regional Human Resources Manager who investigated Stacy Wing’s complaints, Scott

13 Anderson, is currently employed with Defendant.

14

Second, Plaintiff asks that Defendant be required to implement injunctive relief,

15 including “employee training on Title VII’s prohibitions against injunctive relief for all

16 officials with responsibilities for ensuring compliance with Title VII in its Arizona Region”

17 (Id. 3:6-9). Defendant responds that it is already conducting employee training (Doc. 234,

18 11:25-27). Employees of store 2737 where Stacy Wing worked testified that they received

19 the employee handbook upon their hire and knew that it contained the company’s policies

20 prohibiting harassment and methods for reporting any alleged harassment (Id. 11:27-12:3).1

21 While Defendant makes a conclusory statement that it trains employees, it does not present

22 any evidence as to the type of training provided. While Anderson testified at trial that all

23 employees were required to participate in sexual harassment training (Tr. 96-97)2, Stacy

24

25 1 Defendant points to the testimony of several trial witnesses, including Johnny
26 Millan, Luz Hernandez-Gomez, Joe Acuna, and Derrick Edwards (Trial Transcript (“Tr”) 68,
27 120, 386-87, 391, 647-48).

28

2Citations to “Tr” refer to the trial transcript.

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Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 4 of 9

1 Wing testified that she never attended any such training sessions (Tr. 452-53). The alleged

2 harrasser Jose Contreras did not have a record of any training in his personnel file either (Tr.

3 185-91, 234-35).

4

The Court will grant this request because it finds that a formal training program within

5 the Phoenix Region3 is needed for Defendant’s employees, including supervisors and

6 managers as well as Human Resource officials. The training session should include (1) an

7 overview of Title VII and its purposes, (2) what constitutes sexual harassment under Title

8 VII; (3) types of prohibited activities; (4) Defendant’s policies on sexual harassment,

9 including to whom to report complaints of sexual harassment; (5) promise of confidentiality

10 for persons complaining of sexual harassment; and (6) a description of the consequences for

11 harassment, including termination. This training should be conducted on a yearly basis as

12 a means of educating those in management positions about sexual harassment under Title

13 VII, and particularly, how to deal with harassment complaints.

14

Third, Plaintiff requests that Defendant be required to post a notice at all stores in the

15 Arizona Region that states “its intent to comply with Title VII; advising its employees of

16 their right to complain about or oppose sexual harassment free from retaliation; and advising

17 its employees of their right to contact federal and state antidiscrimination agencies” (Doc.

18 232, 3:13-17). Plaintiff believes that “[s]uch notice will serve the dual purpose of educating

19 Defendant’s current and future employees regarding their rights and remedies under Title VII

20 and reminding Defendant of its obligation to uphold those rights” (Id. 3:19-21).

21

In its Response, Defendant argues that the evidence at trial established that it already

22 has notices regarding the company’s policies prohibiting harassment and designating to

23 whom reports of harassment should be made (Doc. 234, 5:22-23). Indeed, at trial, Stacy

24 Wing testified regarding a “problem solving” poster that she saw hanging on the wall in store

25 2737 that told her whom to contact to make a complaint (Tr. 436:21-437:4; 520:20-521:2).

26

27

3Defendant points out that it does not have an “Arizona Region.” Rather, Defendant

28 has a Phoenix Region comprised of 85 stores.

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Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 5 of 9

1 This poster was the means by which Stacy Wing learned District Manager Jim Monti’s phone

2 number whom she later contacted. Based upon this evidence, the Court ordered Defendant

3 to provide a copy of the “problem solving” poster displayed in its Phoenix Region stores

4 (Doc 241).

5

On September 1, 2009, Defendant provided a copy of two posters to the Court: (1)

6 Autozone Problem Solving Procedures and (2) Autozone Who to Call (Doc. 246). The

7 problem solving poster generally describes the process by which an employee of Defendant

8 can report “treatment that negatively affects your job performance or your work

9 environment” (Doc. 246, Ex. A). Examples given include improper conduct or harassment.

10 alleged discrimination, and improper administration of company policies and procedures

11 (Id.). Employee complaints are to be routed to the employee’s immediate supervisor/store

12 manager, followed by the Regional Human Resources Manager, and then the Divisional

13 Human Resources Manager (Id.). Any concerns that the employee does not feel comfortable

14 discussing with his or her supervisor can be discussed with AutoZoner Relations (Id.). The

15 Who to Call poster contains the contact information of the individuals referenced in the

16 Problem Solving Poster (Doc. 246, Ex. B).

17

After comparing the poster currently posted in Defendant’s stores with the notice

18 proposed by the EEOC (Doc. 232, Attachment A), the Court finds that Defendant’s poster

19 is a general one directed at all types of employee complaints. While the poster does provide

20 helpful information about whom to contact internally about a complaint, it fails to address

21 Title VII’s prohibition against discrimination based on sex, including sexual harassment.

22 Moreover, the poster fails to describe employees’ rights under Title VII or provide

23 appropriate contact information for the Equal Employment Opportunity Commission or

24 Arizona Civil Rights Division. The Court will grant this type of equitable relief and require

25 updated posters with more specific information to be placed in Defendant’s Phoenix Region

26 stores. These posters are minimally intrusive, provide clear expectations regarding

27 Defendant’s conduct, and identify remedies available to employees who are the victims of

28 discrimination. The information contained on the posters should be kept current, including

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Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 6 of 9

1 the addresses and phone numbers for the Equal Employment Opportunity Commission and

2 Arizona Civil Rights Division, respectively.

3

Fourth, Plaintiff asks the Court to require Defendant’s Arizona Region to “investigate

4 every employee’s complaint of sexual harassment during the three-year period following

5 entry of final judgment” (Doc. 232, 3:26-28). Such investigations shall include “an interview

6 with all relevant witnesses, a recording of all facts used to assess credibility, and the retention

7 all materials related to the investigation” (Id. 3:28-4:3). The Court will deny this request by

8 Plaintiff. Defendant has policies in place that give Human Resources the authority to

9 investigate harassment complaints, and the evidence at trial indicated Scott Anderson

10 conducted two investigations in June and December of 2003 (Tr. 174-76, 181-82, 441-42,

11 444, 534, 682-84). The second investigation resulted in Jose Contreras’ resignation (Tr. 181-

12 82, 682-84). While the parties entered a stipulation regarding Defendant’s lost records, the

13 evidence at trial demonstrated to the Court’s satisfaction that the loss of documents in this

14 case was not intentional, and the existing law outlines Defendant’s obligations as it pertains

15 to investigations.

16

Fifth, Plaintiff requests that Defendant “shall ensure that all officials identified by

17 [Defendant] as a person to whom an . . . employee may complain about sexual harassment,

18 will communicate the complaint to the official with authority to investigate the complaint and

19 not require the employee to make additional contacts with other officials” (Doc. 232, 4:18-

20 5:2). The Court will deny this relief. The evidence at trial showed that store managers and

21 district managers have no authority to investigate sexual harassment complaints (Tr. 213-14,

22 676). Rather, Defendant’s policies required the human resources department to investigate

23 such complaints (Tr. 77, 83, 91, 134-35, 165-67). This department in fact did receive reports

24 of harassment complaints, including those of Stacy Wing. To the extent that Plaintiff is

25 asking that Defendant “ensure that the managers designated in [Defendant]’s Employee

26 Handbook as managers to which employees may complain will address the employees’

27 complaints on their own,” this request amounts to a revision of Defendant’s policies to

28 empower store managers to conduct investigations, and is seemingly inconsistent with having

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Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 7 of 9

1 them forward complaints to human resources (Doc. 232, 5:10-12). Moreover, the new

2 informational posters required by this Order will guide Defendant’s supervisors and

3 managers as to their responsibilities under Title VII, while affording employees an avenue

4 of redress should they feel they are the victim of harassment.

5

Sixth, Plaintiff asks the Court to impose monitoring and reporting requirements for

6 three years. These include the requirement that Defendant retain and pay for a consultant

7 “who shall evaluate [Defendant’s] sexual harassment policies, including efforts to

8 disseminate the policy, and training programs, and make a written report, including

9 recommendations, and provide training during the three-year period commencing from the

10 date of entry of final judgment in this matter.” (Id. 5:14-18) Additionally, Plaintiff asks that

11 Defendant report to the EEOC in an affidavit form every six months any changes to its

12 policies which affect sexual harassment; the names, addresses, position, social security

13 number, and telephone number of any employee who has brought allegations of sexual

14 harassment against Defendant’s personnel; and the registry of persons attending each training

15 seminar and a list of current personnel employed by Defendant on the day(s) of the seminar

16 training session(s) within thirty (30) days after each training seminar (Id. 6:7-20).

17

The Court will deny this relief. Although the jury found that Defendant engaged in

18 unlawful discrimination, one instance of such conduct in a company with 2,500 employees

19 in Arizona does not warrant the imposition of monitoring and reporting requirements. The

20 monetary judgment imposed in this case, as well as the Court’s Order that Defendant conduct

21 employee training and post notices concerning Title VII compliance constitute sufficient

22 sanctions for the single instance of a hostile work environment established at trial.

23

Finally, Plaintiff requests that Defendant provide “training on Title VII” by a

24 consultant approved by the EEOC (Doc. 232, 6:21-8:6). The Court has discussed above the

25 training that it feels is appropriate.

26

The Court is not insensitive to the challenges confronting Defendant from a fluid and

27 ever-changing workforce. Employees, however, should be protected through consistent,

28 well-monitored, and adequately enforced workplace policies.

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Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 8 of 9

1

Accordingly,

2

IT IS HEREBY ORDERED granting in part and denying in part Plaintiff’s Motion

3 to Amend Judgment to Add Equitable Relief (Doc. 232).

4

IT IS FURTHER ORDERED that a training program shall be established for

5 Defendant’s employees in the Phoenix Region, including supervisors and managers as well

6 as Human Resource officials. The training session should include (1) an overview of Title

7 VII and its purposes, (2) what constitutes sexual harassment under Title VII; (3) types of

8 prohibited activities; (4) Defendant’s policies on sexual harassment, including to whom to

9 report complaints of sexual harassment; (5) promise of confidentiality for persons

10 complaining of sexual harassment; and (6) a description of the consequences for harassment,

11 including termination. Employees shall be trained on a yearly basis as a means of educating

12 those in management positions about sexual harassment under Title VII, and particularly,

13 how to deal with harassment complaints.

14

IT IS FURTHER ORDERED that Defendant shall post a poster at all stores in the

15 Phoenix Region. The poster shall be displayed in a prominent location in the store

16 frequented by Defendant’s employees. Additionally, the poster shall explain Defendant’s

17 responsibilities and the employees’ rights under Title VII, including the employees’ right to

18 complain about or oppose sexual harassment, and shall provide contact information for the

19 Phoenix office of the Equal Employment Opportunity Commission and the Arizona Civil

20 Rights Division. The contact information on the poster shall be kept updated, including the

21 addresses and phone numbers for the Equal Employment Opportunity Commission and

22 Arizona Civil Rights Division.

23

IT IS FURTHER ORDERED that the Court shall retain jurisdiction over equitable

24 relief should this Order have to be modified in the future due to changed circumstances.

25

IT IS FURTHER ORDERED that the Clerk shall enter an amended judgment in this

26 case that includes the Court’s ruling on equitable relief.

27

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Case 2:06-cv-00926-SMM Document 258 Filed 11/09/09 Page 9 of 9

1

DATED this 9th day of November, 2009.

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 </s> Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 1 of 8

1 WO

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6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
10

11

Plaintiff,

12 v.

13 AUTOZONE, INC., a Nevada corporation,
14 Defendant.
15

) No. CV 06-926-PHX-SMM ) ) ORDER ) ) ) ) ) ) ) ) ) )

16

Before the Court is Defendant Autozone Inc. (“Defendant”)’s Motion for Partial

17 Reconsideration, filed December 2, 2009 (Doc. 261). Defendant asks the Court to reconsider

18 a portion of its November 9, 2009 Order granting in part Plaintiff Equal Employment

19 Opportunity Commission (“Plaintiff”)’s Motion to Amend Judgment to Add Equitable Relief

20 (Doc. 258). Pursuant to Local Rule 7.2(g)(2),1 the Court allowed Plaintiff the opportunity

21 to file a response (Doc. 262). Plaintiff responded on December 18, 2009 (Doc. 263), and

22 Defendant did not file a reply. After consideration of the parties’ briefing, the Court finds

23 as follows.

24

25

26

27

1Under LRCiv 7.2(g)(2), “no response to a motion for reconsideration and no reply

28 to the response may be filed unless ordered by the Court . . .”

Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 2 of 8

1

BACKGROUND

2

On June 10, 2009, the jury returned a verdict in Plaintiff’s favor on the hostile work

3 environment claim but found against Plaintiff on the retaliation claim. The jury awarded

4 Plaintiff $15,000 in compensatory damages and $50,000 in punitive damages (Doc. 216).

5 On June 11, 2009, judgment was entered (Doc. 217). On June 25, 2009, Plaintiff filed a

6 motion to amend the judgment to include various forms of equitable relief (Doc. 232).

7

On November 9, 2009, the Court granted that motion in part, as it related to Plaintiff’s

8 request for training of employees and displaying of posters (Doc. 258). The Court ordered

9 that a training program be established for Defendant’s Phoenix Region employees, including

10 supervisors, managers, and Human Resource officials (Id. 8:4-6). Through trial testimony

11 and briefing, it was readily apparent that Defendants’ work force, including supervisors, turn

12 over frequently. As such, employees need to be trained on a yearly basis as a means of

13 educating those in management positions about sexual harassment under Title VII, and

14 particularly, how to deal with harassment complaints (Id. 8:11-13). Additionally, the Court

15 ordered Defendants to post at all its Phoenix Region stores a poster that “shall explain

16 Defendant’s responsibilities and the employees’ rights under Title VII, including the

17 employees’ right to complain about or oppose sexual harassment, and shall provide contact

18 information for the Phoenix office of the Equal Employment Opportunity Commission and

19 the Arizona Civil Rights Division.” (Id. 8:16-20). The Court’s Order also required the

20 posters to be displayed in a prominent location in the store frequented by employees (Id.

21 8:15-16). An Amended Judgment was entered on November 10, 2009, reflecting the

22 equitable relief granted by the Court (Doc. 259). Defendant seeks reconsideration of the

23 portion of the Court’s Order addressing the displaying of posters (Doc. 261).

24

STANDARD OF REVIEW

25

A district court can “reconsider” final judgments pursuant to Federal Rules of Civil

26 Procedure 59(e) (governing motions to alter or amend judgments) and 60(b) (governing

27 motions for relief from a final judgment). See Balla v. Idaho State Bd. of Corr., 869 F.2d

28 461, 466-67 (9th Cir. 1989). However, “[m]otions to reconsider are appropriate only in rare

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Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 3 of 8

1 circumstances.” Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995).

2 Mere disagreement with an order is an insufficient basis for reconsideration. Leong v. Hilton

3 Hotels Corp., 689 F.Supp. 1572, 1573 (D. Haw. 1988). Nor should reconsideration be used

4 to make new arguments or to ask the Court to rethink its analysis. United States v.

5 Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998); see also Marlyn Nutraceuticals, Inc.

6 v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).

7

As a general principle, motions to reconsider are appropriate only if the Court “(1) is

8 presented with newly discovered evidence, (2) committed clear error or the initial decision

9 was manifestly unjust, or (3) if there is an intervening change in controlling law.” School

10 Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). If a

11 party seeks to base a motion for reconsideration on newly discovered evidence, the party

12 must also show that “at the time of the Court’s decision, the party moving for reconsideration

13 could not have known of the factual or legal differences through reasonable diligence[.]”

14 Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 586 (D. Ariz. 2003).

15 “There may also be other, highly unusual, circumstances warranting reconsideration.”

16 ACandS Inc., 5 F.3d at 1263.

17

Under the specific rules of this District, “[t]he Court will ordinarily deny a motion for

18 reconsideration of an Order absent a showing of manifest error or a showing of new facts or

19 legal authority that could not have been brought to its attention earlier with reasonable

20 diligence.” LRCiv 7.2(g)(1). “Any such motion shall point out with specificity the matters

21 that the movant believes were overlooked or misapprehended by the Court, any new matters

22 being brought to the Court’s attention for the first time and the reasons they were not

23 presented earlier, and any specific modifications being sought in the Court’s Order.” Id.

24 “Failure to comply with this subsection may be grounds for denial of the motion.” Id.

25 Additionally, “[a]bsent good cause shown, any motion for reconsideration shall be filed no

26 later than ten (10) days after the date of the filing of the Order that is the subject of the

27 motion.” LRCiv 7.2(g)(2).

28

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Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 4 of 8

1

DISCUSSION

2 A. Timeliness of Motion for Reconsideration

3

As Defendant acknowledges, the reconsideration motion was untimely filed under the

4 Local Rules of this District (Doc. 261, p.2, n.1). Under Local Rule 7.2(g)(2) and Federal

5 Rule of Civil Procedure 59(e), motions for reconsideration must be filed within 10 days of

6 the order. Defendant filed the Motion for Reconsideration on December 2, 2009, fifteen (15)

7 days after the Court’s Order was filed on November 9, 2009. Consequently, Defendant filed

8 the motion after the deadline specified by the Local Rules and Federal Rule 59.

9

Federal Rule of Civil Procedure 60(b) also provides parties with the opportunity to

10 file a motion seeking relief from a final judgment, order, or proceeding. Rule 60(b) permits

11 reconsideration of a district court order based on: (1) mistake, inadvertence, surprise, or

12 excusable neglect; (2) newly-discovered evidence which by due diligence could not have

13 been discovered in time to move for a new trial under Rule 59; (3) fraud, misrepresentation,

14 or misconduct by an adverse party; (4) the judgment is void; (5) the judgment has been

15 satisfied, released, or discharged, or a prior judgment upon which it is based has been

16 reversed or otherwise vacated, or it is no longer equitable that the judgment should have

17 prospective application; or (6) any other reason justifying relief from the operation of the

18 judgment. Fed. R. Civ. P. 60(b)(1)-(b)(6). A Rule 60(b) motion must be brought within a

19 “reasonable” time, which cannot be more than one year if the motion is based on mistake,

20 newly-discovered evidence, or fraud. See Fed. R. Civ. P. 60(b). Defendant’s reconsideration

21 motion can be construed as a Rule 60 motion for relief from a final judgment. So considered,

22 the motion falls within the final ground in Rule 60, “any other reason justifying relief from

23 the operation of the judgment.” Fed. R. Civ. P. 60(b)(6).

24 B. Defendant’s Motion for Reconsideration

25

Defendant seeks reconsideration because it already has posters in its Phoenix Region

26 stores that comply with nearly all of the Court’s mandates. Defendant states that two posters

27 are displayed on its bulletin board in the manager’s office, a prominent store location:

28

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Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 5 of 8

1 (1) Equal Employment Opportunity Is The Law; and (2) Arizona Law Prohibits

2 Discrimination in Employment. Federal and Arizona law require these posters to be

3 displayed. Specifically, the Equal Employment Opportunity is the Law poster contains the

4 following information: (1) that it is prohibited to engage in discrimination based on sex (as

5 well as other protected classifications outlined in Title VII); (2) that employees have a right

6 to complain about any employment discrimination; (3) that employees can report

7 discrimination to the EEOC; and (4) retaliation against employees who report or participate

8 in discrimination investigations is prohibited (Doc. 261, Ex. A). The poster also provides the

9 contact information for the EEOC’s headquarters in Washington, D.C., as well as the

10 telephone number and website to obtain contact information for any of the EEOC’s field

11 offices (Id.). Additionally, the Arizona Law Prohibits Discrimination in Employment poster

12 states that discrimination is prohibited based on sex as well as other protected classes, and

13 provides contact information for all offices of the Arizona Civil Rights Division, including

14 the Phoenix office (Doc. 261, Ex. B).

15

Defendant states that the only information required by the Court’s November 9, 2009

16 Order that is not given is the address and telephone number for the Phoenix EEOC field

17 office. However, the poster provides both a telephone number and website where this

18 information can be obtained.

19 C. Plaintiff’s Response

20

Plaintiff responds that the posters do not comply with the Court’s November 9, 2009

21 Order for several reasons. First, Plaintiff objects to the content of the two posters.

22 According to Plaintiff, the “Equal Employment Opportunity is the Law” poster is general in

23 nature and directed at all types of discrimination complaints, rather than only sexual

24 harassment. It does not “explain ...the employees’ right to complaint about or oppose sexual

25 harassment” as required by the Court, and does not contain the current address and telephone

26 number for the EEOC’s field office in Phoenix. Plaintiff also points out that the version

27 currently posted by Defendant is from 2002, and thus, is outdated. A revised version of the

28

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Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 6 of 8

1 poster was made available in November 2009.2 As to the other poster, “Arizona Law

2 Prohibits Discrimination in Employment”, Plaintiff argues that it is deficient too because it

3 does not “explain Defendant’s responsibilities and the employees’ rights under Title VII,

4 including the employees’ right to complain about or oppose sexual harassment.”

5

Second, Plaintiff objects to the placement of the posters. The Court’s November 9,

6 2009 Order required that the posters be “displayed in a prominent location in the store

7 frequented by Defendant’s employees.” Defendant has provided the affidavit of current

8 Regional Human Resources Manager, Randy Walton, which states that the posters are

9 displayed on a bulletin board in the managers’ offices, “a location . . . frequented by store

10 employees.” (Doc. 261, Ex. 1). Plaintiff objects that there is no indication whether this is

11 a prominent location. Also, Plaintiff raises its concern that the posters’ location in

12 management offices is “likely to discourage employees from consulting the posters for fear

13 of being observed doing so by their managers and subsequently suffering retaliation.” (Doc.

14 263, 4:12-14). Plaintiff argues that this location could have a “chilling effect” on employees’

15 right to complain about sexual harassment (Id. 4:14-16). Finally, Plaintiff argues that

16 Defendant’s motion is untimely under Local Rule 7.2(g)(2) because it was not filed within

17 ten (10) days after the date of the filing of the Order subject to the reconsideration motion.

18 D. Analysis

19

After examining the posters provided by Defendant, the Court finds that while the

20 posters address the Court’s underlying concerns, deficiencies remain. The two posters in

21 Defendant’s Phoenix Region Stores — Equal Employment Opportunity is the Law and

22 Arizona Law Prohibits Discrimination in Employment — provide substantially the same

23 information outlined in the Court’s November 9, 2009 Order regarding the right to complain

24 about harassment and the means to report harassment complaints. Thus, the Court will grant

25

26

27

2Plaintiff states that the updated “Equal Employment Opportunity is the Law” poster

28 can be found at www1.eeoc.gov/employers/poster.cfm

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Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 7 of 8

1 Defendant’s motion to the extent that Defendant requests the use of the two posters as a

2 foundation, rather than creating entirely new posters from scratch.3

3

However, there are several deficiencies with the posters that prevent the Court from

4 granting Defendant’s motion in full. First, the Court finds that the Equal Employment

5 Opportunity is the Law poster submitted by Defendant is outdated. A revised version of the

6 poster was made available in November 2009. The Court will order that Defendant display

7 the most recent version of the Equal Employment Opportunity is the Law poster as found on

8 the EEOC’s website, www1.eeoc.gov/employers/poster.cfm.

9

Additionally, the Court finds that the Equal Employment Opportunity is the Law

10 poster fails to contain the contact information for the EEOC’s Phoenix field office. The

11 Court will order that the Equal Employment Opportunity is the Law poster be modified to

12 include the address and telephone number of the EEOC’s Phoenix field office. Employees

13 seeking to report harassment should not have the additional hurdle of contacting the EEOC

14 headquarters in order to obtain the local field office’s address and telephone number.

15

Finally, the Court finds that the placement of the Equal Employment Opportunity is

16 the Law and Arizona Law Prohibits Discrimination in Employment posters is inadequate.

17 While the manager’s offices may be a location frequented by employees, this location may

18 discourage employees from consulting the posters for fear of being observed by their

19 supervisor, and thus, have a chilling effect on harassment complaints. Therefore, the Court

20 will order both posters to be displayed in a prominent location frequented by employees other

21 than the manager’s office.

22

As to Plaintiff’s arguments regarding the timeliness of Defendant’s motion, the Court

23 has addressed the timeliness issue above and rules on the merits of the motion.

24

25

3Defendant arguably could have produced the two posters earlier, and thus, conserved

judicial resources. Defendant states that it did not produce the posters earlier because the

26 Court only asked Defendant to provide a copy of the current “problem solving” poster

27 displayed in its Phoenix Region stores (Doc. 241). While technically correct, the Court’s prior Order was aimed at determining what posters already existed in the Phoenix Region

28 stores in response to Plaintiff’s request for the displaying of posters.

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Case 2:06-cv-00926-SMM Document 264 Filed 01/06/10 Page 8 of 8

1

Accordingly,

2

IT IS HEREBY ORDERED that Defendant Autozone Inc.’s Motion for Partial

3 Reconsideration is granted in part and denied in part (Doc. 261).

4

IT IS FURTHER ORDERED that Defendant display the most recent version of the

5 Equal Employment Opportunity is the Law poster as found on the EEOC’s website in its

6 Phoenix Region stores. Additionally, the Equal Employment Opportunity is the Law poster

7 shall be modified to include the contact information for the EEOC’s Phoenix field office,

8 including its address and telephone number. The Equal Employment Opportunity is the Law

9 and Arizona Law Prohibits Discrimination in Employment posters shall be displayed in a

10 prominent location frequented by employees other than the manager’s office.

11

DATED this 6th day of January, 2010.

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 </s> Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 1 of 21

U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:06−cv−00926−SMM

CLOSED,STD

Equal Employment Opportunity Commission v. Autozone, Inc. Assigned to: Judge Stephen M McNamee Case in other court: Ninth Circuit, 09−16860
Ninth Circuit, 09−17149
Ninth Circuit, 10−15059 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 03/30/2006 Date Terminated: 06/11/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Katherine J Kruse EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5029 Fax: 602−640−5009 Email: katherine.kruse@eeoc.gov TERMINATED: 03/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

D Andrew Winston EEOC 303 E 17th Ave Ste 410 Denver, CO 80203 303−866−1361 Fax: 303866−1375 Email: Andrew.Winston@eeoc.gov ATTORNEY TO BE NOTICED

Guy David Knoller EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012 602−640−5067 Fax: 602−640−5009 Email: guy.knoller@eeoc.gov ATTORNEY TO BE NOTICED

Mary Joleen O'Neill Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5044 Fax: 602−640−5009 Email: mary.oneill@eeoc.gov ATTORNEY TO BE NOTICED

P David Lopez EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5016 Fax: 602−640−5009

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 2 of 21
Email: patrick.lopez@eeoc.gov ATTORNEY TO BE NOTICED
Sally Clifford Shanley Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5007 Fax: 602−640−5009 Email: sally.shanley@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
AutoZone Incorporated a Nevada Corporation

represented by Donald Peder Johnsen Gallagher & Kennedy PA 2575 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016−9225 602−530−8000 Fax: 602−530−8500 Email: DPJ@gknet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie M Chess , Jones Walker Waechter Poitevent Carrere & Denegre LLP 601 Brickell Key Dr Ste 500 Miami, FL 33131 305−679−5728 Fax: 305−679−5710 Email: lchess@joneswalker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanne M Risey Frilot Partridge LC 1100 Poydras St Ste 3600 New Orleans, LA 70163 504−599−8000 Fax: 504−599−8264 Email: srisey@frilotpartridge.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracy E Kern Jones Walker LLP 201 St Charles Ave., Fl. 50 New Orleans, LA 70170−5100 504−582−8134 Fax: 504−589−8134 Email: tkern@joneswalker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 3 of 21

03/30/2006 03/30/2006 04/03/2006 04/10/2006 04/17/2006 04/25/2006 04/25/2006 05/16/2006 05/16/2006
05/16/2006 05/16/2006
06/27/2006 07/03/2006 08/10/2006 08/16/2006 08/17/2006 08/17/2006
08/22/2006

1 COMPLAINT, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Kruse, Katherine) (Entered: 03/30/2006)
This case has been assigned to the Honorable Stephen M. McNamee. All future pleadings or documents should bear the correct case number: CV06−926−PHX−SMM. (entered by JIR ) (Entered: 04/03/2006)
2 Summons Issued as to Autozone, Inc.. (JIR ) (Entered: 04/03/2006)
3 Standard Civil Track Initial ORDER . Signed by Judge Stephen M McNamee on 4/10/2006. (TCA, ) (Entered: 04/12/2006)
4 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Autozone, Inc. served on 4/6/2006, answer due 4/26/2006. (Kruse, Katherine) (Entered: 04/17/2006)
5 ANSWER to Complaint by Autozone, Inc..(Johnsen, Donald) (Entered: 04/25/2006)
6 Corporate Disclosure Statement by Autozone, Inc.. (Johnsen, Donald) (Entered: 04/25/2006)
7 MOTION for Admission Pro Hac Vice by Tracy E Kern on behalf of Autozone, Inc.. (BAS, ) (Entered: 05/16/2006)
8 ORDER pursuant to General Order 05−25 granting 7 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 05/16/2006)
9 MOTION for Admission Pro Hac Vice by Suzanne M Risey on behalf of Autozone, Inc.. (BAS, ) (Entered: 05/16/2006)
10 ORDER pursuant to General Order 05−25 granting 9 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 05/16/2006)
11 Notice re Preparedness for Scheduling Conference by Equal Employment Opportunity Commission re 3 Order (Kruse, Katherine) (Entered: 06/27/2006)
12 ORDER Scheduling Conference set for 8/17/2006 04:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 7/3/2006. (TCA, ) (Entered: 07/03/2006)
13 REPORT re: Rule 26(f) Planning Meeting by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/10/2006)
14 Notice re Service of Intitial Disclosure Statement by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 08/16/2006)
15 Notice re Service of Defendant's Rule 26 Initial Disclosures by Autozone, Inc. (Johnsen, Donald) (Entered: 08/17/2006)
16 Minute Entry (text only entry) for proceedings held before Judge Stephen M McNamee : Apr. Katherine Kruse for pla, pla present, Donald Johnsen/Tracy Kern for dft, client Rep Robert Gomez presentScheduling Conference held on 8/17/2006. Pretrial Conference set for 10/3/2007 04:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. Court order to follow.(Court Reporter Gary Moll.) (TCA, ) (Entered: 08/18/2006)
17 RULE 16 SCHEDULING ORDER: Discovery due by 7/27/2007. Dispositive motions due by 9/14/2007. Final Pretrial Conference set for 10/3/2007 04:00 PM before Judge Stephen M McNamee. Signed by Judge Stephen M McNamee on 8/17/06. (LCF) (Entered: 08/22/2006)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 4 of 21

08/28/2006 09/27/2006 10/11/2006 10/20/2006 12/22/2006 04/10/2007 04/12/2007
04/18/2007 04/24/2007 04/29/2007
04/30/2007
05/22/2007 06/05/2007 06/11/2007 06/11/2007 06/11/2007 06/11/2007 06/14/2007 06/14/2007
06/14/2007
06/19/2007

18 Notice re Service of First Request for Production of Documents by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 08/28/2006)
19 Notice re Service of Defendant's Responses to EEOC's First Request for Production of Documents by Autozone, Inc. (Risey, Suzanne) (Entered: 09/27/2006)
20 Notice re Service of Defendant's Supplemental Responses to EEOC's First Request for Production of Documents by Autozone, Inc. (Risey, Suzanne) (Entered: 10/11/2006)
21 Notice re Service of Defendant's First Interrogatories and First Request for Production of Documents to Plaintiff by Autozone, Inc. (Risey, Suzanne) (Entered: 10/20/2006)
22 Notice re Service of Responses to Defendant's First Discovery Requests by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 12/22/2006)
23 NOTICE of Change of Address by Tracy E Kern (Kern, Tracy) (Entered: 04/10/2007)
24 NOTICE of Deposition of AutoZone, Inc. pursuant to Fed. R. Civ. P. 30(b)(6), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 04/12/2007)
25 Notice re Service of First Set of Interrogatories by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 04/18/2007)
26 Notice re of Service of Defendant's Notice of Deposition by Autozone, Inc. (Kern, Tracy) (Entered: 04/24/2007)
27 First MOTION for Extension of Time for Deadlines on Discovery, Dispositive Motions, and Pretrial Conference by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 04/29/2007)
28 ORDER granting 27 Motion for Extension of Time;Discovery due by 9/14/2007, Dispositive motions due by 11/2/2007, Final Pretrial Conference is re−set to 11/20/07 at 4:00, 10/3/07 Final Pretrial Conference is vacated. Signed by Judge Stephen M McNamee on 4/30/07.(LSP) (Entered: 04/30/2007)
29 NOTICE of Appearance by P David Lopez on behalf of Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/22/2007)
30 Notice re Service of Defendant's Answers to Plaintiff's First Set of Interrogatories by Autozone, Inc. (Kern, Tracy) (Entered: 06/05/2007)
31 NOTICE of Deposition of Scott Anderson, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 06/11/2007)
32 NOTICE of Deposition of Kirk Carter, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 06/11/2007)
33 NOTICE of Deposition of Brian Slaughter, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 06/11/2007)
34 NOTICE of Deposition of Donna Porter, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 06/11/2007)
35 Notice re of Service of Notice of Deposition by Autozone, Inc. (Kern, Tracy) (Entered: 06/14/2007)
36 Notice re of Service of Defendant's Third Supplemental Responses to Plaintiff's First Request for Production of Documents by Autozone, Inc. (Kern, Tracy) Modified on 6/15/2007, INCORRECT PDF DOCUMENT ATTACHED. ATTORNEY REFILED AT 37 , (LSP). (Entered: 06/14/2007)
37 Notice re of Service of Defendant's Third Supplemenal Responses to Plaintiff's First Request for Production of Documents [CORRECTED] by Autozone, Inc. re 36 Other Notice (Kern, Tracy) (Entered: 06/14/2007)
38 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 32 Notice of Deposition of Kirk Carter. (Kruse, Katherine) (Entered: 06/19/2007)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 5 of 21

06/19/2007
06/25/2007 07/06/2007 07/09/2007 07/09/2007
07/09/2007 07/30/2007
08/08/2007 08/10/2007 08/16/2007
08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/20/2007 08/20/2007 08/21/2007

39 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 34 Notice of Deposition of Donna Porter. (Kruse, Katherine) (Entered: 06/19/2007)
40 NOTICE of Deposition of Staci Saucier, filed by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 06/25/2007)
41 MOTION for Admission Pro Hac Vice as to attorney Laurie M Chess on behalf of Autozone, Inc. (BAS, ) (Entered: 07/09/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX059752 as to Laurie M Chess. (BAS, ) (Entered: 07/09/2007)
42 ORDER pursuant to General Order 05−25 granting 41 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/09/2007)
43 NOTICE of Deposition of AutoZone, Inc., filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 07/09/2007)
44 Notice re of Service of Defendant's Second Set of Interrogatories, Second Request for Production of Documents, and Request for Admissions by Autozone, Inc. (Kern, Tracy) (Entered: 07/30/2007)
45 STIPULATION to Extend Deadlines by Autozone, Inc.. (Attachments: # 1 Text of Proposed Order)(Johnsen, Donald) (Entered: 08/08/2007)
46 ORDER denying 45 STIPULATION to Extend Deadlines. Signed by Judge Stephen M McNamee on 8/9/07. (LSP) (Entered: 08/10/2007)
47 Notice re Service of Discovery by Equal Employment Opportunity Commission 1st Request for Admission, 2nd Set of Request for Production and 2nd Set of Interrogatories (Kruse, Katherine) (Entered: 08/16/2007)
48 NOTICE of Deposition of Joe Acuna, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/16/2007)
49 NOTICE of Deposition of Josh Arias, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/16/2007)
50 NOTICE of Deposition of Hector Barajas, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/16/2007)
51 NOTICE of Deposition of Ibis Miranda, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/16/2007)
52 NOTICE of Deposition of Johnnie Millan, filed by Autozone, Inc.. (Chess, Laurie) (Entered: 08/16/2007)
53 NOTICE of Deposition of Mariano Chaffino, filed by Autozone, Inc.. (Chess, Laurie) (Entered: 08/16/2007)
54 NOTICE of Deposition of Howard Brown, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/16/2007)
55 NOTICE of Deposition of Staci Saucier, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/16/2007)
56 NOTICE of Deposition of Brian Goddard, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/20/2007)
57 Notice re First Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 08/20/2007)
58 NOTICE of Deposition of Janine Wing, filed by Autozone, Inc.. (Chess, Laurie) (Entered: 08/21/2007)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 6 of 21

08/21/2007 08/31/2007 09/05/2007 09/06/2007 09/07/2007 09/10/2007 09/10/2007 09/10/2007 09/10/2007 09/11/2007
09/12/2007 09/14/2007 09/14/2007 09/17/2007 09/18/2007 09/27/2007 09/28/2007
10/01/2007 10/19/2007 10/25/2007

59 NOTICE of Deposition of Stacy Wing, filed by Autozone, Inc.. (Chess, Laurie) (Entered: 08/21/2007)
60 Third MOTION for Extension of Time discovery, dispositive motions, pretrial conference by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 08/31/2007)
61 ORDER denying 60 Motion to Extend Discovery. Signed by Judge Stephen M McNamee on 9/4/07.(MAP) (Entered: 09/05/2007)
62 Notice re of Service of Defendant's Responses to Plaintiff's First Request for Admissions by Autozone, Inc. (Kern, Tracy) (Entered: 09/06/2007)
63 Notice by Equal Employment Opportunity Commission Service of Responses to Defendant's 1st Set of Admissions, 2nd Request for Production of Documents and 2nd Set of Interrogatories (Kruse, Katherine) (Entered: 09/07/2007)
64 Notice re Notice of Cancellation by Autozone, Inc. re 59 Notice of Deposition of Stacy Wing (Chess, Laurie) (Entered: 09/10/2007)
65 Notice re Re−Notice of Telephone Deposition by Autozone, Inc. re 58 Notice of Deposition of Janine Wing (Chess, Laurie) (Entered: 09/10/2007)
66 Notice by Equal Employment Opportunity Commission Second Supplemental Disclosure Statement (Kruse, Katherine) (Entered: 09/10/2007)
67 Notice re Amended Deposition by Equal Employment Opportunity Commission re 50 Notice of Deposition Hector Barajas (Lopez, P) (Entered: 09/10/2007)
68 ORDER Final Pretrial Conference set for 11/20/2007 04:00 PM before Judge Stephen M McNamee FURTHER ORDERED if this case shall be tried to a jury, counsel shall prepare and sign a Proposed Pretrial Order and submit it to the Court no later than 10/19/2007. Signed by Judge Stephen M McNamee on 9/10/07. (MAP) (Entered: 09/11/2007)
69 Notice re of Service of Defendant's Answers to Plaintiff's Second Set of Interrogatories and Responses to Plaintiff's Second Request for Production of Documents by Autozone, Inc. (Kern, Tracy) (Entered: 09/12/2007)
70 Notice re Notice of Service of Defendant's First Supplemental Rule 26 Initial Disclosures by Autozone, Inc. (Chess, Laurie) (Entered: 09/14/2007)
71 Notice re Third Supplement Disclosure by Equal Employment Opportunity Commission (Lopez, P) (Entered: 09/14/2007)
72 Notice re Notice of Service of Defendant's Supplemental Answers to Plaintiff's First Set of Interrogatories by Autozone, Inc. (Chess, Laurie) (Entered: 09/17/2007)
73 Notice re Notice of Service of Defendant's Revised Supplemental Answers to Plaintiff's First Set of Interrogatories by Autozone, Inc. (Chess, Laurie) (Entered: 09/18/2007)
74 Joint MOTION for Extension of Time to Extend Pre−Trial Order Deadlines by Autozone, Inc.. (Attachments: # 1 Text of Proposed Order)(Chess, Laurie) (Entered: 09/27/2007)
75 ORDER granting 74 Motion for Extension of Time. Proposed Pretrial Order due by 11/5/2007. Signed by Judge Stephen M McNamee on 9/28/2007.(TCA)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/28/2007)
76 Notice by Equal Employment Opportunity Commission Fourth Supplemental Disclosure Statement (Lopez, P) (Entered: 10/01/2007)
77 AMENDED ANSWER to Plaintiff's Complaint by Autozone, Inc.. (Kern, Tracy) (Entered: 10/19/2007)
78 AMENDED DOCUMENT by Autozone, Inc.. Second Amended Answer to Plaintiff's Complaint. (Kern, Tracy) (Entered: 10/25/2007)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 7 of 21

11/01/2007
11/01/2007 11/02/2007 11/02/2007 11/05/2007 11/15/2007
11/15/2007 11/20/2007 11/21/2007 11/29/2007 12/13/2007 12/13/2007 12/13/2007

79 MOTION for Summary Judgment by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A part 1# 2 Exhibit Exhibit A part 2# 3 Exhibit Exhibit A part 3# 4 Exhibit Exhibit A part 4# 5 Exhibit Exhibit A part 5# 6 Exhibit Exhibit A part 6# 7 Exhibit Exhibit A part 7# 8 Exhibit Exhibit B# 9 Exhibit Exhibit C part 1# 10 Exhibit Exhibit C part 2# 11 Exhibit Exhibit C part 3# 12 Exhibit Exhibit D# 13 Statement of Material Facts in Support of Motion for Summary Judgment# 14 Memorandum in Support of Motion for Summary Judgment# 15 Appendix Anderson vs. Arizona# 16 Appendix Molina vs. Phoenix Union# 17 Appendix Penrod vs. Mohave Community College# 18 Appendix Sykes vs. Pennsylvania State Police)(Chess, Laurie) (Entered: 11/01/2007)
80 Joint MOTION for Extension of Time to Extend Pre−Trial Order Deadlines by Autozone, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order)(Chess, Laurie) (Entered: 11/01/2007)
81 MOTION for Partial Summary Judgment Affirmative Defenses six and eight in Second Amended Answer by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 11/02/2007)
82 STATEMENT of Facts in Support of Motion for Partial Summary Judgment re 81 MOTION for Partial Summary Judgment Affirmative Defenses six and eight in Second Amended Answer by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1)(Lopez, P) (Entered: 11/02/2007)
83 ORDER granting 80 Motion for Extension of Time. Final Pre−Trial Conference scheduled for 11/20/07 is vacated. Signed by Judge Stephen M McNamee on 11/5/07.(LSP) (Entered: 11/05/2007)
84 RESPONSE in Opposition re 81 MOTION for Partial Summary Judgment Affirmative Defenses six and eight in Second Amended Answer Defendant's Response to Plaintiff's Statement of Facts in Support of it's[sic] Motion for Partial Summary Judgment filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6)(Chess, Laurie) (Entered: 11/15/2007)
85 RESPONSE in Opposition re 81 MOTION for Partial Summary Judgment Affirmative Defenses six and eight in Second Amended Answer Defendant's Opposition to Plaintiff's Motion for Partial Summary Judgment filed by Autozone, Inc.. (Chess, Laurie) (Entered: 11/15/2007)
86 First MOTION for Extension of Time To Respond to Defendant's Motion For Summary Judgment; Motion For Expedited Ruling by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 11/20/2007)
87 ORDER granting 86 Motion for Extension of Time to 12/13/07 to file response to Dft's Motion for Summary Judgment. Signed by Judge Stephen M McNamee on 11/21/07.(LSP) (Entered: 11/21/2007)
88 REPLY in Support re 81 MOTION for Partial Summary Judgment Affirmative Defenses six and eight in Second Amended Answer filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/29/2007)
89 DOCUMENT #89 STRICKEN PURSUANT TO ORDER #102 FILED ON 6/19/08. RESPONSE re 79 MOTION for Summary Judgment Local Rule 56.1Response to Defendant's Separate Statement of Facts by Plaintiff Equal Employment Opportunity Commission. (Kruse, Katherine) Modified on 6/19/2008 (LSP). (Entered: 12/13/2007)
90 DOCUMENT #90 STRICKEN PURSUANT TO ORDER #102 FILED ON 6/19/08. RESPONSE in Opposition re 79 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Kruse, Katherine) Modified on 6/19/2008 (LSP). (Entered: 12/13/2007)
91 DOCUMENT #91 STRICKEN PURSUANT TO ORDER #102 FILED ON 6/19/08. STATEMENT of Facts in Support of EEOC's Response to Defendant's Motion for Summary Judgment re 90 Response in Opposition to Motion by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−5, # 2 Exhibit 6−11, # 3 Exhibit 12−19)(Kruse, Katherine) Modified on 6/19/2008 (LSP). (Entered: 12/13/2007)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 8 of 21

12/18/2007 12/21/2007 12/21/2007 01/07/2008 02/07/2008
02/11/2008
02/20/2008 03/07/2008
03/17/2008
06/05/2008 06/19/2008

92 Notice re of Service of Defendant's Fourth Supplemental Responses to Plaintiff's First Request for Production of Documents by Autozone, Inc. (Kern, Tracy) (Entered: 12/18/2007)
93 DOCUMENT #93 STRICKEN PURSUANT TO ORDER #102 FILED ON 6/19/08. REPLY in Support re 79 MOTION for Summary Judgment filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Chess, Laurie) Modified on 6/19/2008 (LSP). (Entered: 12/21/2007)
94 DOCUMENT #94 STRICKEN PURSUANT TO ORDER #102 FILED ON 6/19/08. OBJECTION re 91 Statement, Objections to Certain of Plaintiff's Statement of Fact filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Chess, Laurie) Modified on 6/19/2008 (LSP). (Entered: 12/21/2007)
95 Notice re of Filing of Plaintiff's Exhibit 19: Signed Declaration of Luz Gomez a/k/a Luz Hernandez by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit Exhibit 19: Signed Declaration of Luz Gomez a/k/a Luz Hernandez)(Lopez, P) (Entered: 01/07/2008)
96 MOTION to Strike re (1) Motion To Strike Exhibits Attached to Defendants Reply, (2) Motion To Strike Defendants Objections to Certain of Plaintiffs Statement of Facts, or, In the Alternative (3) Motion For Leave To File Surreply; and (4) Motion To Exclude Defendants 2002 Employee Handbook From Evidence And To Strike An Exhibit Containing An Excerpt From That Handbook. by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 02/07/2008)
97 First MOTION for Extension of Time to extend time to respond to Plaintiff's Motion to Strike Exhibits attached to Defendant's Reply, (2) Motion to Strike "Defendant's Objections to Certain of Plaintiff's Statement of Facts", or, in the alternative, (3) Motion for Leave to File Surreply; and (4) Motion to Exclude Defendant's 2002 Employee Handbook from Evidence and to Strike an Exhibit Containing an Excerpt from that Handbook by Autozone, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order)(Chess, Laurie) (Entered: 02/11/2008)
98 ORDER granting 97 Motion for Extension of Time to 3/7/08 for Defendant's to file Response to Plaintiff's Motion. Signed by Judge Stephen M McNamee on 2/12/08.(LSP) (Entered: 02/20/2008)
99 RESPONSE in Opposition re 96 MOTION to Strike re (1) Motion To Strike Exhibits Attached to Defendants Reply, (2) Motion To Strike Defendants Objections to Certain of Plaintiffs Statement of Facts, or, In the Alternative (3) Motion For Leave To File Surreply; and (4) Motion To Exc MOTION to Strike re (1) Motion To Strike Exhibits Attached to Defendants Reply, (2) Motion To Strike Defendants Objections to Certain of Plaintiffs Statement of Facts, or, In the Alternative (3) Motion For Leave To File Surreply; and (4) Motion To Exc filed by Autozone, Inc.. (Kern, Tracy) (Entered: 03/07/2008)
100 REPLY in Support re 96 MOTION to Strike re (1) Motion To Strike Exhibits Attached to Defendants Reply, (2) Motion To Strike Defendants Objections to Certain of Plaintiffs Statement of Facts, or, In the Alternative (3) Motion For Leave To File Surreply; and (4) Motion To Exc MOTION to Strike re (1) Motion To Strike Exhibits Attached to Defendants Reply, (2) Motion To Strike Defendants Objections to Certain of Plaintiffs Statement of Facts, or, In the Alternative (3) Motion For Leave To File Surreply; and (4) Motion To Exc filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 03/17/2008)
101 ORDER granting 81 Plaintff's Motion for Partial Summary Judgment as to affirmative defenses numbered six and eight in Defendant's Second Amended Answer. Signed by Judge Stephen M McNamee on 6/5/08.(LSP) (Entered: 06/05/2008)
102 ORDER granting in part and denying in part 96 EEOC's Motion to Strike. IT IS FURTHER ORDERED striking 89 EEOC's Response, 90 Response in Opposition to Motion, and 91 Statement and striking 93 Autozone's Reply in Support of Motion, and 94 Objection. IT IS FURTHER ORDERED denying 96 EEOC's Motion for Leave to file a Surreply and EEOC's Motion to Exclude Defendant's 2002 Employee Handbook from Evidence. Signed by Judge Stephen M McNamee on 6/18/08.(LSP) (Entered:

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 9 of 21

07/01/2008 07/01/2008 07/08/2008 07/10/2008 07/15/2008
07/31/2008 08/05/2008 08/08/2008
08/13/2008 08/22/2008 08/22/2008 08/29/2008
09/11/2008

06/19/2008)
103 RESPONSE in Opposition re 79 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 07/01/2008)
104 STATEMENT of of Fact in Support of the EEOC's Response to Defendant's Motion for Summary Judgment and Local Rule 56.1 Response to Defendant's Statement of Facts re 103 Response in Opposition to Motion by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−5, # 2 Exhibit 6−11, # 3 Exhibit 12−19)(Kruse, Katherine) (Entered: 07/01/2008)
105 MOTION for Leave To Exceed Page Limit Under LRCiv 7.2(E) by Autozone, Inc.. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Johnsen, Donald) (Entered: 07/08/2008)
106 ORDER granting 105 Motion for leave to exceed the page limit for its Reply memorandum in support of its Motion for Summary Judgment. Signed by Judge Stephen M McNamee on 7/10/08.(LSP) (Entered: 07/10/2008)
107 REPLY in Support re 79 MOTION for Summary Judgment filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B − Excerpts from Mr. Millan's deposition transcript, # 3 Exhibit Exhibit C − Excerpts from Mr. Anderson's deposition transcript, # 4 Exhibit Exhibit D − Excerpts from Ms. Wing's deposition transcript, # 5 Appendix EEOC v. Restaurant Marketing, # 6 Appendix Fowler v. Honeywell, # 7 Appendix Mercon Coffee v. Beanbag Storage)(Chess, Laurie) (Entered: 07/15/2008)
108 MOTION to Strike re Reply to Defendant's Motion for Summary Judgment by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 07/31/2008)
109 Minute Order: A Telephonic Discovery Dispute Conference is set for 8/8/2008 09:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. Counsel for plaintiff will initiate the call to the Court at 602−322−7555. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 08/05/2008)
110 Minute Entry. Proceedings held before Judge Stephen M McNamee: Telephonic Apr. Katherine Kruse for pla;Laurie Chess and Tracy Kern for dftTelephonic Discovery Dispute Conference re: motion to strike exhibits attached to defendant reply to motion for summary judgment held on 8/8/2008. Plaintiff to file a written response by 8/22/2008 on the issue of the 2002 and 2004 employee handbooks. Defendant response is due 9/8/2008. (Court Reporter David German.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 08/08/2008)
111 RESPONSE in Opposition re 108 MOTION to Strike re Reply to Defendant's Motion for Summary Judgment Opposition to Plaintiff's Motion to Strike Exhibits Attached to Defendant's Reply and New Argument Contained in the Reply, or, in the Alternative, Motion for Leave to File Surreply filed by Autozone, Inc.. (Chess, Laurie) (Entered: 08/13/2008)
112 MOTION to Strike re Exhibit Attached to Reply in Support of Defendant's Motion for Summary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 08/22/2008)
113 REPLY in Support re 108 MOTION to Strike re Reply to Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/22/2008)
114 RESPONSE in Opposition re 112 MOTION to Strike re Exhibit Attached to Reply in Support of Defendant's Motion for Summary Judgment Opposition to Plaintiff's Motion to Exclude Defendant's 2002 Store Handbook from Evidence and to Strike an Exhibit Containing an Excerpt from that Handbook filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Appendix Smith vs. United Healthcare)(Chess, Laurie) (Entered: 08/29/2008)
115 ORDER denying Dft's 79 Motion for Summary Judgment; denying EEOC's 103 Response in Opposition to Motion/Request for an adverse inference; denying as moot

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 10 of 21

10/28/2008 10/29/2008
12/04/2008 12/04/2008 12/09/2008
12/10/2008 12/10/2008 12/11/2008 12/12/2008
12/12/2008 12/12/2008
12/12/2008 12/12/2008

EEOC's 108 Motion to Strike; denying as moot EEOC's 112 Motion to Strike. Signed by Judge Stephen M McNamee on 09/10/08.(DNH) (Entered: 09/11/2008)
116 ORDER, re: FINAL PRETRIAL CONFERENCE, Final Pretrial Conference set for 1/8/2009 04:00 PM before Judge Stephen M McNamee. Proposed Pretrial Order due by 12/12/2008 (see order for full details). Signed by Judge Stephen M McNamee on 10/28/08. (REW, ) (Entered: 10/28/2008)
117 AMENDED ORDER re: FINAL PRETRIAL CONFERENCE, Final Pretrial Conference set for 1/8/2009 04:00 PM before Judge Stephen M McNamee. Proposed Pretrial Order due by 12/12/2008, re 116 Order (see order for full details). Signed by Judge Stephen M McNamee on 10/29/08. (Attachments: # 1 Exhibit)(REW, ) (Entered: 10/29/2008)
118 MOTION for Extension of Time Defendant to Submit Objections to Plaintiff's Deposition Designations by Autozone, Inc.. (Attachments: # 1 Text of Proposed Order)(Chess, Laurie) (Entered: 12/04/2008)
119 RESPONSE to Motion re 118 MOTION for Extension of Time Defendant to Submit Objections to Plaintiff's Deposition Designations filed by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 12/04/2008)
120 ORDER granting in part Dft's 118 Motion to Extend Deadline for Dft to Submit Objections to Pla's Deposition Designations. FURTHER ORDERED the deadline for filing the proposed pretrial order is extended to Wednesday, 12/17/08. The proposed pretrial order shall include objections to deposition testimony as well as the bases for the objections. (See document for further details). Signed by Judge Stephen M McNamee on 12/8/2008.(LAD) (Entered: 12/09/2008)
121 Proposed Voir Dire by Autozone, Inc.. (Chess, Laurie) (Entered: 12/10/2008)
122 TRIAL BRIEF Joint Description of the Case by Autozone, Inc.. (Chess, Laurie) (Entered: 12/10/2008)
123 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 12/11/2008)
124 MOTION in Limine re: Testimony/Evidence Regarding Scott Anderson's Performance, Termination and Discipline by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Appendix Creswell vs. HCAL Corp., # 3 Appendix Morris vs. Lampher, # 4 Text of Proposed Order Proposed Order)(Chess, Laurie) (Entered: 12/12/2008)
125 MOTION in Limine re: Testimony Related to the Mental or Physical Condition of Ms. Wing's Mother by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Appendix Walker vs. Contra Costa, # 4 Text of Proposed Order Proposed Order)(Chess, Laurie) (Entered: 12/12/2008)
126 MOTION in Limine re: Testimony of Harassment or Retaliation of Ms. Bracho, Ms. Hernandez, and Mr. Acuna by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Appendix Allen−Cuffee vs. Franklin County, # 4 Appendix Sarantis vs. ADP Inc., # 5 Text of Proposed Order Proposed Order)(Chess, Laurie) (Entered: 12/12/2008)
127 MOTION in Limine re: Evidence Regarding Net Worth, Financial Condition, Size, and/or Market Share by Autozone, Inc.. (Attachments: # 1 Appendix Barton vs. Cascade Regional Blood Services, # 2 Appendix Sarantis vs. ADP Inc., # 3 Text of Proposed Order Proposed Order)(Chess, Laurie) (Entered: 12/12/2008)
128 Second MOTION in Limine re: Investigative Materials not Preserved by Autozone by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit List, # 3 Exh 1 Part 1 Scott Anderson Dep., # 4 Exh 1 Part 2 Anderson Deposition, # 5 Exh 2 Part 1 Rose 30(b)(6) Deposition, # 6 Exh 2 Part 2 Rose Deposition Excerpts, # 7 Exh 3 Carter Deposition Excerpts, # 8 Exhibit 4 Bryant Deposition Excertps, # 9 Exhibits 5−6 Barajas and Gomez, # 10 Exh 7 Reltherford 30(b)(6) Deposition)(Kruse, Katherine) (Entered: 12/12/2008)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 11 of 21

12/12/2008 12/12/2008 12/15/2008 12/17/2008
12/19/2008
12/19/2008
12/19/2008 12/19/2008 12/19/2008 12/19/2008 01/06/2009 01/06/2009
01/07/2009 01/08/2009

129 First MOTION in Limine re: to Exclude AutoZone's 2002 Handbook by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 12/12/2008)
130 Proposed Verdict Form by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 12/12/2008)
131 Proposed Verdict Form by Autozone, Inc.. (Chess, Laurie) (Entered: 12/15/2008)
132 NOTICE OF FILING Proposed Pretrial Order by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−5, # 2 Exhibit 6− part 1, # 3 Exhibit 6− part 2, # 4 Exhibit 7−8)(Kruse, Katherine) Modified on 12/18/2008 (DNH). INCORRECT EVENT SELECTED. THIS DOCKET ENTRY HAS BEEN MODIFIED FROM REPORT TO NOTICE OF FILING PROPOSED PRETRIAL ORDER. (Entered: 12/17/2008)
133 RESPONSE in Opposition re 129 First MOTION in Limine re: to Exclude AutoZone's 2002 Handbook filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A − Excerpts from deposition of Ms. Wing, # 2 Exhibit Exhibit B − excerpts from handbooks, # 3 Exhibit Exhibit C − excerpt from deposition of Mr. Brown, # 4 Exhibit Exhbit D − excerpt from deposition of Mr. Millan, # 5 Appendix Smith vs. United Healthcare Services, Inc.)(Chess, Laurie) (Entered: 12/19/2008)
134 RESPONSE in Opposition re 128 Second MOTION in Limine re: Investigative Materials not Preserved by Autozone filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibit A − excerpt from deposition of Mr. Anderson, # 2 Exhibit Exhibit B − July 27, 2004 letter, # 3 Exhibit Exhibit C − excerpt from deposition of Ms. Rose, # 4 Appendix EEOC vs. AutoZone, # 5 Appendix EEOC vs. Recruit USA Inc., # 6 Appendix Murphy vs. The McGraw−Hill Corp)(Chess, Laurie) (Entered: 12/19/2008)
135 RESPONSE in Opposition re 124 MOTION in Limine re: Testimony/Evidence Regarding Scott Anderson's Performance, Termination and Discipline filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−2)(Kruse, Katherine) (Entered: 12/19/2008)
136 RESPONSE in Opposition re 126 MOTION in Limine re: Testimony of Harassment or Retaliation of Ms. Bracho, Ms. Hernandez, and Mr. Acuna filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1)(Kruse, Katherine) (Entered: 12/19/2008)
137 RESPONSE in Opposition re 127 MOTION in Limine re: Evidence Regarding Net Worth, Financial Condition, Size, and/or Market Share filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Kruse, Katherine) (Entered: 12/19/2008)
138 RESPONSE in Opposition re 125 MOTION in Limine re: Testimony Related to the Mental or Physical Condition of Ms. Wing's Mother filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 12/19/2008)
139 Minute Order: TIME CHANGE ONLY Final Pretrial Conference re−set for 1/8/2009 01:30 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 01/06/2009)
140 MOTION to Excuse David Lopez from Attendance at the Pretrial Conference by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) INCORRECT EVENT SELECTED, THIS ENTRY HAS BEEN MODIFIED FROM MOTION FOR RULING TO MISCELLANEOUS RELIEF, ATTORNEY NOTICED, NO FOLLOW UP REQUIRED. Modified on 1/7/2009 (ESL, ). (Entered: 01/06/2009)
141 ORDER denying as moot Plaintiff's 140 Unopposed Motion to Excuse David Lopez from Attendance at the Pretrial Conference. Signed by Judge Stephen M McNamee on 1/7/09.(REW, ) (Entered: 01/07/2009)
142 Minute Entry. Proceedings held before Judge Stephen M McNamee: Apr. Katherine Kruse/David Lopez for pla; Laurie Chess/Tracy Kern for dft, Client Rep Mike RyleyFinal Pretrial Conference held on 1/8/2009. ORDERED granting 124 Motion in

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 12 of 21

01/13/2009 01/15/2009 01/15/2009
01/30/2009 02/05/2009 03/03/2009 03/05/2009 03/05/2009 03/09/2009 03/27/2009 04/02/2009 04/07/2009 04/08/2009

Limine; granting 125 Motion in Limine; granting 126 Motion in Limine; taking under advisement 127 , Court will issue and order, Motion in Limine; denying 128 Motion in Limine; denying 129 Motion in Limine. Objections to video depositions to be filed along with the video nlt January 30, 2009. Length of Trial 4−6 days. Parties agree to pre−screen jury for length. Witnesses and exhibits discussed. Jury Trial 4−6 days set for 6/2/2009 09:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. (Court Reporter Linda Schroeder.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 01/09/2009)
143 MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 127 Motion in Limine. FURTHER ORDERED that a jury trial is set for 6/2/09 at 9:00 a.m. before the Honorable Stephen M. McNamee. (See document for full details). Signed by Judge Stephen M McNamee on 1/12/2009. (LAD) (Entered: 01/13/2009)
144 MOTION for Motion for Clarification and Incorporated Memorandum in Support by Autozone, Inc.. (Attachments: # 1 Text of Proposed Order)(Chess, Laurie) (Entered: 01/15/2009)
145 ORDER granting 144 Motion for Clarification and Incorporated Memorandum. In an effort to clarify its prior ruling, the Court finds that evidence of dft's net worth is potentially relevant to the amount of punitive damages in this case and as a result, such evidence is admissible. Once the Court determines there is sufficient evidence to submit the issue of punitive damages to the jury, such evidence will be admitted subject to a limiting instruction. Signed by Judge Stephen M McNamee on 1/15/2009. (LAD) (Entered: 01/15/2009)
146 Joint MOTION for Ruling re Deposition Designation Objections Without Video by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 01/30/2009)
147 ORDER granting 146 Joint Motion (1) for Ruling on Deposition Designation Objections without Video; or (2) For Leave To Submit Videos In Unedited Form. Signed by Judge Stephen M McNamee on 2/4/09.(REW, ) (Entered: 02/05/2009)
148 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 03/03/2009)
149 ORDER DENYING the Motion for Withdrawal of Co−Counsel Katherine K. Kruse 148 without prejudice with leave to refile. Signed by Judge Stephen M McNamee on 3/4/09.(KMG) (Entered: 03/05/2009)
150 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Shanley, Sally) (Entered: 03/05/2009)
151 ORDER − IT IS ORDERED GRANTING the 150 Motion to Withdraw Counsel for Plaintiff EEOC. FURTHER ORDERED that attorney Katherine K. Kruse is withdrawn as counsel in the present case. Signed by Judge Stephen M McNamee on 3/9/09.(SAT) (Entered: 03/09/2009)
152 NOTICE of Appearance by D Andrew Winston on behalf of Equal Employment Opportunity Commission (Winston, D) (Entered: 03/27/2009)
153 TRANSCRIPT DESIGNATION AND ORDER FORM by Equal Employment Opportunity Commission for proceedings held on 01−08−2009 before Judge Stephen McNamee. (Lopez, P) (Entered: 04/02/2009)
154 Minute Order: ORDERED A Final Pretrial Conference is set for 5/26/2009 04:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 04/07/2009)
155 ORDER − IT IS HEREBY ORDERED that by Friday, 5/1/09, the parties shall submit a stipulation regarding the lost records to the Court, or alternatively, designate one witness to testify regarding Dft's record keeping and retention policies. FURTHER ORDERED that should Pla wish to use additional witnesses' testimony in objection, Pla must provide the Court with the reasons why such testimony is necessary and how it differs from the testimony of the witness designated by the parties by Friday, 5/1/09.

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 13 of 21

04/16/2009
04/16/2009 04/17/2009 05/01/2009 05/11/2009 05/11/2009 05/20/2009 05/20/2009 05/20/2009 05/20/2009 05/20/2009 05/20/2009 05/20/2009 05/22/2009
05/22/2009
05/26/2009 05/26/2009

Signed by Judge Stephen M McNamee on 4/8/09. (SAT) (Entered: 04/08/2009)
156 TRANSCRIPT of Proceedings re: Final Pretrial Conference held on 1/8/09 before Judge Stephen M McNamee. Court Reporter: Linda Schroeder. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/7/2009. Redacted Transcript Deadline set for 5/18/2009. Release of Transcript Restriction set for 7/15/2009. (BAS, ) (Entered: 04/16/2009)
157 NOTICE OF FILING OF OFFICIAL TRANSCRIPT 156 (BAS, ) (Entered: 04/16/2009)
158 TRANSCRIPT DESIGNATION AND ORDER FORM by Autozone, Inc. for proceedings held on 01/08/2009 before Judge Stephen McNamee. (Chess, Laurie) (Entered: 04/17/2009)
159 STIPULATION by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 05/01/2009)
160 Notice re Notice of Filing Proof of Service Regarding Subpoena for Trial served upon Brian Goddard by Autozone, Inc. (Attachments: # 1 Exhibit)(Chess, Laurie) (Entered: 05/11/2009)
161 Notice re Notice of Filing Proof of Service Regarding Subpoena for Trail served upon Scott Anderson by Autozone, Inc. (Attachments: # 1 Exhibit)(Chess, Laurie) (Entered: 05/11/2009)
162 Notice re of Filing Proof of Service re Trial Subpoena served on Joe Acuna by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/20/2009)
163 Notice re Proof of Service of Trial Subpoena served on Scott Anderson by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/20/2009)
164 Notice re Proof of Service of Trial Subpoena on Hector Barajas by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/20/2009)
165 Notice re Proof of Service of Trial Subpoena on Kirk Carter by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/20/2009)
166 Notice re Proof of Service of Trial Subpoena on Brian Goddard by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/20/2009)
167 Notice re Proof of Service of Trial Subpoena on Luz Hernandez by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/20/2009)
168 Notice re Proof of Service of Trial Subpoena on Johnnie Millan by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/20/2009)
169 LODGED Proposed Amended Pretrial Order. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Autozone, Inc.. (Attachments: # 1 Exhibit Exhibits 1 through 5, # 2 Exhibit Exhibit 6 part 1, # 3 Exhibit Exhibit 6 part 2, # 4 Exhibit Exhibits 7 and 8)(Chess, Laurie) (Entered: 05/22/2009)
170 MOTION for Leave to File Amend pretrial Order to Add One Exhibit by Autozone, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Appendix EEOC vs. Kim and Ted, Inc., # 4 Appendix U.S. vs. Chamberlain, # 5 Text of Proposed Order)(Chess, Laurie) (Entered: 05/22/2009)
171 Notice re Filing Proof of Service re Robert Gomez by Equal Employment Opportunity Commission (Lopez, P) (Entered: 05/26/2009)
172 MOTION for Leave to File re Filing Proposed Pretrial Order filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A Second Amended Pretrial Order, # 2 Text of Proposed Order)(Lopez, P) Modified on 5/27/2009 INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM OTHER NOTICE TO MOTION FOR LEAVE TO FILE (ESL, ). Modified on 5/27/2009 (TLJ) LODGED PROPOSED DOCUMENT EVENT NOT ENTERED. ATTORNEY NOTICED. (Entered: 05/26/2009)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 14 of 21

05/26/2009
05/27/2009 05/27/2009 05/27/2009 05/27/2009 05/27/2009 05/28/2009 05/28/2009 05/28/2009 05/28/2009 05/28/2009 05/28/2009 05/28/2009

173 Minute Entry. Proceedings held before Judge Stephen M McNamee: Apr. David Lopez/Andrew Winston for pla;Laurie Chess/Tracy Kern for dftsFinal Pretrial Conference held on 5/26/2009.Court will allow pla a chance to respond to defendant's motion re: Johnnie Millan (doc.#170).Court will accept the parties stipulation (doc. #159) after some editing as discussed on the record.Court will issue a brief order on the tangible defenses issue. Court will review the new jt proposed pretrial statement. Witnesses, deposition testimony, exhibits discussed. Copy of draft preliminary jury instructions given to counsel. (Court Reporter Candy Potter.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 05/26/2009)
174 NOTICE TO FILER OF DEFICIENCY re 172 MOTION for Leave to File filed by Equal Employment Opportunity Commission. Description of deficiency: Original proposed pleading not electronically lodged. (TLJ) (Entered: 05/27/2009)
175 LODGED Proposed Proposed Second Amended Pretrial Order re: 172 MOTION for Leave to File. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 05/27/2009)
176 Notice re Notice of Filing Deposition Designations and Plaintiff's Objections to Same by Autozone, Inc. (Attachments: # 1 Exhibit AutoZone's Deposition Designations and EEOC's Objections to Howard Brown's deposition testimony)(Chess, Laurie) (Entered: 05/27/2009)
177 ORDER granting 172 Motion for Leave to File Second Amended Pretrial order. Clerk of Court shall file the Second Amended Pretrial Order, currently lodged as Doc. 175.. Signed by Judge Stephen M McNamee on 5/27/2009.(TCA, ) (Entered: 05/27/2009)
179 Notice of Filing Proposed Second Amended Pretrial Order, filed by Equal Employment Opportunity Commission and AutoZone, Inc..(ESL) (Entered: 05/28/2009)
178 TRIAL BRIEF Regarding What Constitutes a "Tangible Employment Action" for Purposes of a Sexual Harassment Claim by Autozone, Inc.. (Attachments: # 1 Exhibit 1 − EEOC Charge, # 2 Exhibit 2 − Excerpts from deposition of Ms. Wing)(Chess, Laurie) (Entered: 05/28/2009)
180 Notice re Filing Deposition Designations and Defendant's Objections to Same by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit EEOC's Deposition Designations and Defendant's Objections to Howard Brown's deposition testimony)(Lopez, P) (Entered: 05/28/2009)
181 Notice re Notice of Filing Deposition Designations and Plaintiff's Objections to Same by Autozone, Inc. (Attachments: # 1 Exhibit AutoZone's Deposition Designations and EEOC's Objections to Charles Bryant's deposition testimony)(Chess, Laurie) (Entered: 05/28/2009)
182 Notice re Notice of Filing Deposition Designation and Plaintiff's Objections to Same by Autozone, Inc. (Attachments: # 1 Exhibit AutoZone's Deposition Designations and EEOC's Objections to Debbie Young's deposition testimony)(Chess, Laurie) (Entered: 05/28/2009)
183 Notice re Notice of Filing Deposition Designations and Plaintiff's Objections to Same by Autozone, Inc. (Attachments: # 1 Exhibit AutoZone's Deposition Designations and EEOC's Objections to Johnnie Millan's deposition testimony)(Chess, Laurie) (Entered: 05/28/2009)
184 Notice of Filing Proposed Second Amended Pretrial Order Proposed Second Amended Pretrial Order by Autozone, Inc.. (Chess, Laurie) Modified on 5/28/2009 INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM A MOTION to NOTICE OF FILING PROPOSED PRETRIAL ORDER (ESL, ). (Entered: 05/28/2009)
185 Notice re Filing Deposition Designations and Defendant's Objections to Same by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit EEOC's Deposition Designations and Defendant's Objections to Charles Lee Bryant's deposition testimony)(Lopez, P) (Entered: 05/28/2009)

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05/28/2009 05/28/2009 05/28/2009 05/28/2009 05/28/2009 05/29/2009
05/29/2009 05/29/2009 05/29/2009 05/29/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/01/2009 06/02/2009

186 Notice re Filing Deposition Designations and Defendant's Objections to Same by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit EEOC's Deposition Designations and Defendant's Objections to Johnnie Millan's deposition testimony)(Lopez, P) (Entered: 05/28/2009)
187 Notice re Filing Deposition Designations and Defendant's Objections to Same by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit EEOC's Deposition Designations and Defendant's Objections to Darren Reltherford's deposition testimony)(Lopez, P) (Entered: 05/28/2009)
188 Notice re Filing Deposition Designations and Defendant's Objections to Same by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit EEOC's Deposition Designations and Defendant's Objections to Lejeune Rose's deposition testimony)(Lopez, P) (Entered: 05/28/2009)
189 Notice re Deposition Designations and Defendant's Objections to Same by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit EEOC's Deposition Designations and Defendant's Objections to Staci L. Saucier's deposition testimony)(Lopez, P) (Entered: 05/28/2009)
190 Notice re Deposition Designations and Defendant's Objections to Same by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit EEOC's Deposition Designations and Defendant's Objections to Debbie Diane Young's deposition testimony)(Lopez, P) (Entered: 05/28/2009)
191 ORDER re 173 At the Final Pre−Trial Conference held on May 26, 2009, the Court agreed to address and rule on the parties' objections to the designated testimony of Howard Brown prior to trial. Mr. Brown will appear via videotape deposition and the advance ruling will allow the parties to edit the videotape of the deposition. Signed by Judge Stephen M McNamee on 5/28/09. (Note: See Order for full details)(KMG) (Entered: 05/29/2009)
192 Notice re Proof of Service of Subpoena for Trial by Autozone, Inc. (Attachments: # 1 Exhibit Proof of Service regarding Donna Porter)(Chess, Laurie) (Entered: 05/29/2009)
193 Notice re Proof of Service regarding Subpoena for trial by Autozone, Inc. (Attachments: # 1 Exhibit Proof of Service regarding Josh Arias)(Chess, Laurie) (Entered: 05/29/2009)
194 Notice re Proof of Service regarding trial subpoena by Autozone, Inc. (Attachments: # 1 Exhibit Proof of Service regarding trial subpoena for Hector Barajas)(Chess, Laurie) (Entered: 05/29/2009)
195 RESPONSE in Opposition re 170 MOTION for Leave to File Amend pretrial Order to Add One Exhibit Opposition To Defendant's Motion for Leave to Admit Conviction filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1)(Lopez, P) (Entered: 05/29/2009)
196 TRIAL BRIEF re Tangible Employment Action by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 06/01/2009)
197 TRANSCRIPT DESIGNATION AND ORDER FORM by Equal Employment Opportunity Commission for proceedings held on 06/02/2009 − 06/05/2009 before Judge Stephen M. McNamee. (Lopez, P) (Entered: 06/01/2009)
198 Notice re Proof of Service of Trial Subpoena to Josh Arias by Equal Employment Opportunity Commission (Attachments: # 1 Proof of Service re Josh Arias)(Lopez, P) (Entered: 06/01/2009)
199 ORDER that the Court will give the preliminary jury instruction concerning an employer's vicarious liability for a hostile work environment caused by a supervisor. Signed by Judge Stephen M McNamee on 6/1/2009. (TCA, ) (Entered: 06/01/2009)
200 Notice re of Service of 4th Supplemental Disclosure by Equal Employment Opportunity Commission (Lopez, P) (Entered: 06/01/2009)
201 Minute Entry. Proceedings held before Judge Stephen M McNamee: Jury Trial DAY 1 begun on 6/2/2009.granting 170 Motion for Leave to File. (Court Reporter Candy

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06/02/2009 06/03/2009 06/04/2009
06/04/2009 06/04/2009
06/05/2009
06/08/2009 06/09/2009 06/09/2009 06/10/2009
06/10/2009 06/10/2009 06/10/2009 06/10/2009 06/10/2009 06/11/2009
06/12/2009

Potter.)(TCA, ) (Entered: 06/02/2009)
202 Preliminary Jury Instructions. (TCA, ) (Entered: 06/02/2009)
203 Minute Entry. Proceedings held before Judge Stephen M McNamee: Jury Trial DAY 2 held on 6/3/2009. (Court Reporter Elaine Cropper/Candy Potter.)(TCA, ) (Entered: 06/03/2009)
204 Minute Entry. Proceedings held before Judge Stephen M McNamee: Jury Trial DAY 3 held on 6/4/2009.Defendant's oral motion for judgment as a matter of law is taken under advisement. (Court Reporter Candy Potter/Elaine Cropper.)(TCA, ) (Entered: 06/04/2009)
205 Notice re Filing of Supplement to Motion for Judgment as a Matter of Law Authorities by Equal Employment Opportunity Commission (Lopez, P) Modified on 6/5/2009 TO REFLECT CORRECT DOCUMENT DESCRIPTION (REW, ). (Entered: 06/04/2009)
206 Notice re: Filing Amended Supplement to Motion for judgment as a Matter of Law by Equal Employment Opportunity Commission (Attachments: # 1 Appendix EEOC Guidance)(Lopez, P) Modified on 6/5/2009 TO REFLECT CORRECT DOCUMENT DESCRIPTION (REW, ). (Entered: 06/04/2009)
207 Minute Entry. Proceedings held before Judge Stephen M McNamee: Jury Trial DAY 4 held on 6/5/2009. Defendant's motion for judgment as a matter granted in part and denied in part;Plaintiff's motion for judgment as a matter of law is denied. (Court Reporter Candy Potter/Elaine Cropper.)(TCA, ) (Entered: 06/05/2009)
208 Notice re Supplemental Brief by Equal Employment Opportunity Commission (Lopez, P) (Entered: 06/08/2009)
209 Minute Entry. Proceedings held before Judge Stephen M McNamee: Jury Trial DAY 5 held on 6/9/2009. (Court Reporter Elaine Cropper/Candy Potter.)(TCA, ) (Entered: 06/09/2009)
210 Final Jury Instructions. (TCA, ) (Entered: 06/10/2009)
211 Minute Entry. Proceedings held before Judge Stephen M McNamee: Jury Trial DAY 6 completed on 6/10/2009. Verdict reached. Defendant's motion for judgment as a matter of law on retaliation claim is denied. (Court Reporter Elaine Cropper.)(TCA, ) (Entered: 06/10/2009)
212 Witness List by Equal Employment Opportunity Commission. (DMT, ) (Entered: 06/11/2009)
213 Witness List by Autozone, Inc.. (DMT, ) (Entered: 06/11/2009)
214 Exhibit List by Equal Employment Opportunity Commission.. (DMT, ) (Entered: 06/11/2009)
215 Exhibit List by Autozone, Inc. (DMT, ) (Entered: 06/11/2009)
216 JURY VERDICT for plaintiff for punitive damages of $50,000 and compensatory damages of $15,000. (DMT, ) (Entered: 06/11/2009)
217 CLERK'S JUDGMENT entered: that defendants motion for judgment as a matter of law as to the hostile work environment claim is denied; retaliation claim is denied; tangible employment action claim is granted; punitive damages claim is denied. Plaintiff's motion for judgment as a matter of law as to affirmative defense hostile work environment is denied; affirmative defenses punitive damages is denied. That the jury empaneled and sworn unanimously find for plaintiff against defendant on the hostile work environment claim and award damages in the amount of $15,000; find for defendant against plaintiff on retaliation claim; plaintiff is awarded punitive damages in the amount of $50,000. (DMT, ) (Entered: 06/11/2009)
218 TRANSCRIPT DESIGNATION AND ORDER FORM by Autozone, Inc. for trial proceedings excluding jury voir dire held on 6/2/09 through 6/10/09 before Judge Stephen M McNamee. (BAS, ) (Entered: 06/12/2009)

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06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/12/2009

219 TRANSCRIPT of Proceedings re: Jury Trial Day 2 A.M. held on 6/3/09 before Judge Stephen M McNamee. Court Reporter: Elaine Cropper. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
220 TRANSCRIPT of Proceedings re: Jury Trial Day 1 held on 6/2/09 before Judge Stephen M McNamee. Court Reporter: Candy L Potter. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
221 TRANSCRIPT of Proceedings re: Jury Trial Day 2 P.M. held on 6/3/09 before Judge Stephen M McNamee. Court Reporter: Candy L Potter. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
222 TRANSCRIPT of Proceedings re: Jury Trial Day 3 A.M. held on 6/4/09 before Judge Stephen M McNamee. Court Reporter: Candy L Potter. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
223 TRANSCRIPT of Proceedings re: Jury Trial Day 3 P.M. held on 6/4/09 before Judge Stephen M McNamee. Court Reporter: Elaine Cropper. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
224 TRANSCRIPT of Proceedings re: Jury Trial Day 4 A.M. held on 6/5/09 before Judge Stephen M McNamee. Court Reporter: Candy L Potter. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
225 TRANSCRIPT of Proceedings re: Jury Trial Day 4 P.M. held on 6/5/09 before Judge Stephen M McNamee. Court Reporter: Elaine M Cropper. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
226 TRANSCRIPT of Proceedings re: Jury Trial Day 5 A.M. held on 6/9/09 before Judge Stephen M McNamee. Court Reporter: Elaine Cropper. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
227 TRANSCRIPT of Proceedings re: Jury Trial Day 5 P.M. held on 6/9/09 before Judge Stephen M McNamee. Court Reporter: Candy L Potter. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before

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06/12/2009
06/12/2009 06/22/2009 06/25/2009 06/25/2009 07/07/2009
07/08/2009
07/09/2009 07/14/2009 07/15/2009
07/20/2009 07/24/2009 08/06/2009 08/19/2009

the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
228 TRANSCRIPT of Proceedings re: Jury Trial Day 6 held on 6/10/09 before Judge Stephen M McNamee. Court Reporter: Elaine M Cropper. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (BAS, ) (Entered: 06/12/2009)
229 NOTICE OF FILING OF OFFICIAL TRANSCRIPT 219 220 221 222 223 224 225 226 227 and 228 (BAS, ) (Entered: 06/12/2009)
230 MOTION for Judgment as a Matter of Law by Autozone, Inc.. (Attachments: # 1 Appendix Molina vs. Phoenix Union High School, # 2 Text of Proposed Order)(Chess, Laurie) (Entered: 06/22/2009)
231 BILL OF COSTS by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Lopez, P) (Entered: 06/25/2009)
232 MOTION for Permanent Injunction to Amend Judgment for Equitable Relief by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Lopez, P) (Entered: 06/25/2009)
233 OBJECTION re 231 Bill of Costs filed by Autozone, Inc.. (Attachments: # 1 Exhibit A, # 2 Appendix Affymetrix, Inc. vs. Multilyte Ltd, # 3 Appendix Blaine Larsen vs. Hapco Farms, # 4 Appendix Corridean vs. Restore Financial Services, # 5 Appendix Fonseca vs. Secor International, # 6 Appendix Gouveia vs. Sears, # 7 Appendix Leal vs. Chapman Chevrolet, # 8 Appendix Pixion Inc vs. Placeware Inc.)(Chess, Laurie) (Entered: 07/07/2009)
234 RESPONSE in Opposition re 232 MOTION for Permanent Injunction to Amend Judgment for Equitable Relief filed by Autozone, Inc.. (Attachments: # 1 Exhibit A − part 1, # 2 Exhibit A − part 2, # 3 Exhibit A − part 3, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Appendix Denny vs. Union Pacific, # 9 Appendix EEOC v. Go Daddy Software, # 10 Appendix Reiter vs. Metropolitan Transportation)(Chess, Laurie) (Entered: 07/08/2009)
235 RESPONSE to Motion re 230 MOTION for Judgment as a Matter of Law filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Lopez, P) (Entered: 07/09/2009)
236 NOTICE of Appearance by Guy David Knoller on behalf of Equal Employment Opportunity Commission (Knoller, Guy) (Entered: 07/14/2009)
237 REPLY in Support re 230 MOTION for Judgment as a Matter of Law filed by Autozone, Inc.. (Attachments: # 1 Exhibit Transcript pp. 135−136, # 2 Exhibit Transcript pp. 313−315, # 3 Exhibit Transcript p. 438, # 4 Exhibit Transcript pp. 602−603, # 5 Exhibit Transcript p. 624, # 6 Exhibit Transcript p. 659, # 7 Exhibit Transcript pp. 664−665, # 8 Exhibit Transcript p. 668)(Chess, Laurie) (Entered: 07/15/2009)
238 REPLY to Response to Motion re 232 MOTION for Permanent Injunction to Amend Judgment for Equitable Relief filed by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 07/20/2009)
239 ORDER denying 230 Renewed Motion for Judgment as a Matter of Law, or Alternatively, Motion for New Trial.. Signed by Judge Stephen M McNamee on 7/24/2009.(TCA, ) (Entered: 07/24/2009)
240 Taxation of Costs in amount of $ 6,767.28 against Defendant. Signed by Chief Deputy Clerk Michael O'Brien on 08/06/09. (BJW, ) (Entered: 08/06/2009)
241 ORDER that Defendant submit a copy of the problem solvingposter posted in its Phoenix Region stores to the Court by Friday, September 4, 2009.. Signed by Judge

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 19 of 21

08/21/2009 08/21/2009
08/27/2009 08/28/2009 09/01/2009 09/02/2009 09/02/2009 09/03/2009
09/03/2009 09/22/2009 09/22/2009 09/22/2009
09/29/2009 09/29/2009 09/30/2009 10/02/2009
11/09/2009

Stephen M McNamee on 8/18/2009. (TCA, ) (Entered: 08/19/2009)
242 Notice re of Appeal by Autozone, Inc. (Chess, Laurie) (Entered: 08/21/2009)
243 NOTICE OF APPEAL to 9th Circuit, as to 239 Order on Motion for Judgment by Autozone, Inc. (NOTE: pdf document attached to docket entry # 242 using incorrect docket event; redocketed to utilize correct "Notice of Appeal" event)(DMT, ) Modified on 8/25/2009 to add linkage only (DMT, ). (Entered: 08/25/2009)
244 TRANSCRIPT DESIGNATION AND ORDER FORM by Equal Employment Opportunity Commission for proceedings held on 06−02−09 before Judge Stephen M. McNamee. (Lopez, P) (Entered: 08/27/2009)
245 Ninth Circuit Case Number 09−16860 for 243 Notice of Appeal. (DMT, ) (Entered: 08/28/2009)
246 Notice re Notice of Filing Problem Solving Poster by Autozone, Inc. re 241 Order (Attachments: # 1 Exhibit A − problem solving poster, # 2 Exhibit B − poster containing contact information)(Chess, Laurie) (Entered: 09/01/2009)
247 MOTION for Approval of Supersedeas Bond by Autozone, Inc.. (Attachments: # 1 Exhibit Supersedeas Bond, # 2 Appendix Gordon v. Prudential, # 3 Appendix Schugg v. Gila River, # 4 Text of Proposed Order)(Chess, Laurie) (Entered: 09/02/2009)
248 MOTION to Stay re Stay of Judgment Pending Appeal by Autozone, Inc.. (Attachments: # 1 Text of Proposed Order)(Chess, Laurie) (Entered: 09/02/2009)
249 TRANSCRIPT of Proceedings re: Jury Voir Dire held on 06/02/09 before Judge Stephen M. McNamee. Court Reporter: Candy L. Potter. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/24/2009. Redacted Transcript Deadline set for 10/5/2009. Release of Transcript Restriction set for 12/2/2009. (Cady, Elizabeth) (Entered: 09/03/2009)
250 NOTICE OF FILING OF OFFICIAL TRANSCRIPT 249 . (Cady, Elizabeth) (Entered: 09/03/2009)
251 Notice re Cross−Appeal by Equal Employment Opportunity Commission (Lopez, P) (Entered: 09/22/2009)
252 Representation Statement by Equal Employment Opportunity Commission re 243 Notice of Appeal, (Lopez, P) (Entered: 09/22/2009)
253 NOTICE OF CROSS APPEAL to 9th Circuit as to 239 Order on Motion for Judgment, 217 Clerk's Judgment, by Equal Employment Opportunity Commission. (NOTE: pdf document attached to docket entry #251 using incorrect docket event; redocketed to utilize correct "Notice of Cross Appeal" event) (KMG) . (Entered: 09/29/2009)
254 RESPONSE to Motion re 248 MOTION to Stay re Stay of Judgment Pending Appeal, 247 MOTION for Approval of Supersedeas Bond filed by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 09/29/2009)
256 USCA Appeal Fees received $455 receipt number PHX088964 re 243 Notice of Appeal, filed by Autozone, Inc. (KMG) (Entered: 10/01/2009)
255 Ninth Circuit Case Number 09−17149 for 253 Notice of Cross Appeal. (KMG) (Entered: 09/30/2009)
257 ORDER GRANTING Defendants Motion for Approval ofSupersedeas Bond (Doc. 247). The supersedeas bond filed by Defendant is approved.IT IS FURTHER ORDERED GRANTING Defendants Motion for Stay ofJudgment (Doc. 248). The judgment is stayed pending appeal. Signed by Judge Stephen M McNamee on 10/2/2009.(TCA, ) (Entered: 10/02/2009)
258 ORDER granting in part and denying in part 232 Motion to Amend Judgment to Add Equitable Relief. (See Order for Details). Signed by Judge Stephen M McNamee on 11/9/2009.(TCA, ) (Entered: 11/09/2009)

Case: 2:06-cv-00926-SMM As of: 11/14/2016 03:49 PM MST 20 of 21

11/10/2009
12/02/2009 12/02/2009 12/07/2009 12/18/2009 01/06/2010 01/08/2010

259 AMENDED JUDGMENT entered that defendant's motion for judgment as a matter of law as to the hostile work environment claim is denied; retaliation claim is denied; tangible employment action claim is granted; punitive damages claim is denied. Plaintiff's motion for judgment as a matter of law as to affirmative defense hostile work environment is denied; affirmative defenses punitive damages is denied. IT IS FURTHER ORDERED that the jury empaneled and sworn unanimously find for plaintiff against defendant on the hostile work environment claim and award damages in the amount of $15,000; find for defendant against plaintiff on retaliation claim; plaintiff is awarded punitive damages in the amount of $50,000. IT IS FURTHER ORDERED that a training program shall be established for Defendant's employees in the Phoenix Region, including supervisors and managers as well as Human Resource officials. The training session should include (1) an overview of Title VII and its purposes, (2) what constitutes sexual harassment under Title VII; (3) types of prohibited activities; (4) Defendant's policies on sexual harassment, including to whom to report complaints of sexual harassment; (5) promise of confidentiality for persons complaining of sexual harassment; and (6) a description of the consequences for harassment, including termination. Employees shall be trained on a yearly basis as a means of educating those in management positions about sexual harassment under Title VII, and particularly, how to deal with harassment complaints. IT IS FURTHER ORDERED that Defendant shall post a poster at all stores in the Phoenix Region. The poster shall be displayed in a prominent location in the store frequented by Defendant's employees. Additionally, the poster shall explain Defendant's responsibilities and the employees' rights under Title VII, including the employees' right to complain about or oppose sexual harassment, and shall provide contact information for the Phoenix office of the Equal Employment Opportunity Commission and the Arizona Civil Rights Division. The contact information on the poster shall be kept updated, including the addresses and phone numbers for the Equal Employment Opportunity Commission and Arizona Civil Rights Division. ORDERED that the Court shall retain jurisdiction over equitable relief should this Order have to be modified in the future due to changed circumstances. (DMT, ) (Entered: 11/10/2009)
260 MANDATE of 9th Circuit (Certified Copy), EEOC' s motion to dismiss cross−appeal 09−17149 only is granted. The parties shall bear their own costs on appeal. This order served on the district court shall act as and for the mandate of this court, case number 09−17149, as to 253 Notice of Cross Appeal, filed by Equal Employment Opportunity Commission (Attachments: #(1) NDA)(KMG) (Entered: 12/02/2009)
261 MOTION for Reconsideration re Motion for Partial Reconsideration of Order on Plaintiff's Motion to Amend Judgment to Add Equitable Relief by Autozone, Inc.. (Attachments: # 1 Exhibit 1 − Declaration of Mr. Walton, # 2 Text of Proposed Order)(Chess, Laurie) (Entered: 12/02/2009)
262 ORDER that Plaintiff Equal Employment Opportunity Commission may file a response to Defendants motion for reconsideration by December 18,2009. IT IS FURTHER ORDERED that Defendant has until December 31, 2009 to file a reply to Plaintiffs response, if it so desires. Signed by Judge Stephen M McNamee on 12/4/2009. (TCA, ) (Entered: 12/07/2009)
263 RESPONSE in Opposition re 261 MOTION for Reconsideration re Motion for Partial Reconsideration of Order on Plaintiff's Motion to Amend Judgment to Add Equitable Relief 258 filed by Equal Employment Opportunity Commission. (Winston, D) (Entered: 12/18/2009)
264 ORDER granting in part and denying in part 261 Motion for Partial Reconsideration ;that Defendant display the most recent version of theEqual Employment Opportunity is the Law poster as found on the EEOCs website in itsPhoenix Region stores. Additionally, the Equal Employment Opportunity is the Law postershall be modified to include the contact information for the EEOCs Phoenix field office,including its address and telephone number. The Equal Employment Opportunity is the Lawand Arizona Law Prohibits Discrimination in Employment posters shall be displayed in aprominent location frequented by employees other than the managers office.. Signed by Judge Stephen M McNamee on 1/6/2010.(TCA, ) (Entered: 01/06/2010)
265 NOTICE OF APPEAL to 9th Circuit, as to 259 Judgment,,,,,,,,, by Equal Employment Opportunity Commission. (Winston, D) (Entered: 01/08/2010)

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01/11/2010 04/08/2011
05/11/2011 07/25/2012

266 Ninth Circuit Case Number 10−15059 for 265 Notice of Appeal. (LSP) (Entered: 01/11/2010)
267 SATISFACTION OF JUDGMENT re: 259 Judgment,,,,,,,,, 217 Clerk's Judgment,, entered In favor of Equal Employment Opportunity Commission Against AutoZone Incorporated Satisfaction of Monetary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order Proposed Order)(Winston, D) (Entered: 04/08/2011)
268 MANDATE of USCA, affirming the decision of the District Court, re: 09−16860, 10−15059 243 Notice of Appeal, 265 Notice of Appeal. (Attachments: # 1 Memorandum, # 2 NDA)(REW) (Entered: 05/11/2011)
269 ORDER re 267 Satisfaction of Judgment: IT IS HEREBY ORDERED that Defendant, having satisfied the monetary amount of the judgment entered in this case, the bond securing the judgment may be released. Signed by Senior Judge Stephen M McNamee on 7/23/12. (LAD) (Entered: 07/25/2012)

 </s> The U.S. Equal Employment Opportunity Commission
PRESS RELEASE 6-11-09
AUTOZONE, INC. TO PAY $65,000 FOR SEXUAL HARASSMENT; EEOC
SECURES UNANIMOUS JURY VERDICT
PHOENIX – An eight person federal jury has returned a unanimous verdict in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a sexual harassment lawsuit against AutoZone, Inc., the Memphis, Tenn.-based national auto parts retail giant, the EEOC announced today.
The jury ruled that AutoZone violated Title VII of the Civil Rights Act of 1964 by subjecting employee Stacy Wing to a sexually hostile work environment. Wing complained about the sex harassment, but AutoZone failed to take immediate and appropriate action to stop it, the EEOC said. The jury verdict in favor of the EEOC provides Wing with $65,000 in compensatory and punitive damages.
The evidence presented at trial by the EEOC showed that Wing was subjected to egregious sexual harassment when she worked at the Mesa, Ariz.-based AutoZone in 2003. The EEOC presented evidence that the store manager repeatedly forced Wing’s head down to his genitals and made crude sexual remarks to her. At least one incident was caught on the store’s video camera, but AutoZone maintained it lost the video prior to trial, along with all records of Wing’s complaints and the “investigation” AutoZone claims it conducted.
“I am grateful to the EEOC for believing in this case and seeking justice on my behalf,” Wing said after the trial. “Without the EEOC, this type of behavior would go unchecked by those employers who do not care or do not understand how devastating sexual harassment can be to someone’s life.”
The jury found that the sexual harassment of Wing violated Title VII, the federal statute that prohibits employment discrimination based on race, color, religion, sex (including sexual harassment) and national origin, and protects employees who complain about such offenses, or participate in investigations of such offenses, from retaliation.
EEOC Phoenix District Director Chester V. Bailey said, “The jury sent a strong message that AutoZone failed to remedy the sexual harassment of Ms. Wing. The lawyers from our office did outstanding work in litigating this case.”
In Fiscal Year 2008, 32,535 total harassment charges were filed with the EEOC and state or local agencies nationwide. Of that total 13,867 charges alleged sexual harassment, an increase of 11 percent from the prior year and the highest level since FY 2002.

EEOC Regional Attorney Mary Jo O’Neill remarked, “No employee should ever be the target of this kind of illegal behavior. AutoZone had the opportunity to stop the sexual harassment when Ms. Wing reported it, but the company did nothing. As a result of AutoZone’s inaction, Ms. Wing was physically assaulted by the store manager, which was ultimately caught on video tape. Even then, AutoZone just let the store manager resign; AutoZone failed Stacy Wing.”
David Lopez, the EEOC’s lead attorney who tried the case, added, “It is the bravery of women like Stacy Wing who step forward that causes positive changes in the workplace. We are pleased that Ms. Wing obtained justice in this case.”
According to the company’s web site, “AutoZone is the nation's leading retailer and a leading distributor of automotive replacement parts and accessories with more than 4,200 stores in the US, Puerto Rico, and Mexico.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.
The EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming, and part of New Mexico (including Albuquerque).
	
  


[CONTENT] March 30, 2006 | the Phoenix District Office | EEOC | the U.S. District Court | Arizona ||| Title VII of the Civil Rights Act | 1964 ||| AutoZone Inc. ||| AutoZone Inc. ||| June 5, 2008 | Stephen M McNamee ||| AutoZone Inc. ||| Court ||| AutoZone Inc. ||| McNamee ||| September 11, 2008 | Stephen M McNamee ||| McNamee |||  |||  ||| December 11, 2008 | EEOC |||  ||| June 1, 2009 | McNamee |||  |||  ||| June 10, 2009 ||| AutoZone Inc. ||| AutoZone Inc. | 15,000 | 50,000 ||| June 22, 2009 ||| July 24, 2009 | McNamee |||  ||| June 25, 2009 | EEOC ||| November 9, 2009 | McNamee | EEOC ||| Title VII ||| AutoZone ||| the last three years ||| Title VII ||| One January 6, 2010 | McNamee | three ||| EEOC | the Phoenix Field Office ||| July 23, 2012 | McNamee [SUMMARY] On March 30, 2006, the Phoenix District Office of the EEOC filed this lawsuit in the U.S. District Court for the District of Arizona. The plaintiff sued the automobile repairer AutoZone, Inc. under Title VII of the Civil Rights Act of 1964. The plaintiff, representing a female employee of AutoZone Inc., asked the court for monetary relief for the complainant and injunctive relief enjoining the defendant from future discrimination on the basis of sex. Specifically, the plaintiff claimed that her manager at AutoZone Inc. had sexually harassed her, and that her employer had retaliated against her when she complained of the sexual harassment. 

On June 5, 2008 Judge Stephen M McNamee granted the plaintiff's motion for partial summary judgment with regard to the defendant's affirmative defense. AutoZone Inc. had argued as an affirmative defense that the complainant's previous conviction of disorderly conduct would have constituted termination regardless of her sexual harassment complaints. The Court found this defense lacked sufficient evidence and was merely speculation. AutoZone Inc. further argued an affirmative defense that punitive damages in this case were a violation of the state and federal constitution. Judge McNamee found this affirmative defense erroneous. 

On September 11, 2008 Judge Stephen M McNamee denied the defendant's motion for summary judgment. Judge McNamee ruled that material questions remained with regard to the sexual harassment, the plaintiff's actions following the sexual harassment, and whether the complainant was retaliated against after she filed complaints of sexual harassment. Given these remaining questions, summary judgement was inappropriate. 

The parties then disputed jury instruction. On December 11, 2008, the EEOC provided proposed jury instructions. The defendant claimed that the instructions were incorrect because the plaintiff had not pled that tangible employment action occurred in retaliation to her complaint. On June 1, 2009, Judge McNamee found the instructions proper. The model instructions direct the jury to find whether or not the complainant proved she had suffered a tangible employment action. If found, the defendant was vicariously liable for the manager's conduct, and the defendant's affirmative defense would not be considered. 

On June 10, 2009, a jury found for the plaintiff. The jury found that the plaintiff did experience a hostile work environment, but also found that AutoZone Inc. did not retaliate against the complainant. The jury found AutoZone Inc. liable to the complainant for $15,000 in compensatory damages and $50,000 in punitive damages. 

On June 22, 2009 the defendant moved for a judgment as a matter of law, or alliteratively, a new trial.  On July 24, 2009 Judge McNamee found that there was legally sufficient evidence for the jury finding, and there was not mistake in the case. He denied both motions. 

On June 25, 2009, the EEOC moved to amend the judgment to include equitable relief. On November 9, 2009, Judge McNamee partially granted the EEOC's motion. He granted requests to require training programs, and he granted the request to require updated posters with specific information about Title VII and a complaint process. He denied the motion for a permanent injunction enjoining the defendant from discriminating against employees based on sex because the complainant in this case was the only to come forward with a complaint, and because AutoZone had sufficiently shown that sexual harassment was unlikely to reoccur. He also denied relief requiring the defendant to investigate all employee complaints of sexual harassment from the last three years, relief requiring the defendant to change its complaint process, and relief requiring monitoring and reporting. 

The Defendant then moved for partial reconsideration with regard to new postings on Title VII. One January 6, 2010, Judge McNamee ordered that the original posters may be used as a foundation, but he found three problems that must be corrected. The posters must be updated, they must include EEOC contact information for the Phoenix Field Office, and they must be moved further from the manager's offices. 

On July 23, 2012, Judge McNamee found that the defendant had paid the ordered monetary damages, so he ordered that the bond securing judgment could be released. 
