1 WO

2

3

4

5

6

IN THE UNITED S TATES DIS TRICT COURT

7

FOR THE DIS TRICT OF ARIZONA

8

9 Equal Employment Opportunity Commission,
10 Plaintiff,
11 vs.
12

13 Lennar Homes of Arizona, Inc.,

14

Defendant.

15

) No. CV-03-1827-PHX-DGC ) ) ORDER ) ) ) ) ) ) ) ) ) )

16

17

Pending before the Court are motions for partial summary judgment, motions to

18 supplement, and motions to amend filed by Defendant and motions to strike filed by both

19 parties. Docs. ##48, 68, 70, 90, 92, 101, 104, 115, 131, 133, 145, 148, 152.1

20

Background

21

P laintiff Equal Employment Opportunity Commission commenced this action on

22 September 18, 2003 by filing a co mplaint agains t D efendant that purports to state violations

23 of the Age Discriminat ion in Employment Act (“ADEA”), 29 U .S.C. § 621 et seq. Doc. #1.

24

25 1The parties have requested oral argument on t he motions for p artial summary
26 judgment. T he Court will deny t he requests because the parties’ memoranda thoroughly
27 discuss the law and evidence and t he Court concludes that additional argument will not aid its decisional process. See Mahon v . Credit Bur. of Placer County, Inc., 171 F .3d 1197,
28 1200 (9th Cir. 1999).

1 Plaint iff alleges in the complaint that since at least M ay 1, 2000, D efendant has terminated

2 employees, including Jacque Judge, Carol N ikrant, and Gordon Cameron, because of their

3 ages. D oc. #1 ¶ 7. P ursuant to the Court’s case management order, Plaintiff filed a notice

4 on April 6, 2004 identifying Gregory Leach and Charlyne Sheehan as additional class

5 members on whose behalf Plaintiff will seek relief in this action. Docs. ##24, 33.

6

Discussion

7 I. S ummary Judgment S tandard.

8

Summary judgment is approp riate if the evidence, viewed in the light most favorable

9 to the nonmoving party, “show[s] that there is no genuine issue as to any material fact and

10 that the moving party is ent it led t o judgment as a matter of law.” F ed. R. Civ. P. 56(c); see

11 Celotex Corp. v. Catrett, 477 U .S. 317, 322-23 (1986). S ubstantive law determines w hich

12 facts are material and “[o]nly disputes over facts that might affect the outcome of t he s uit

13 . . . will properly preclude the ent ry of s ummary judgment.” Anderson v. Liberty Lobby,

14 Inc., 477 U .S. 242, 248 (1986). S imilarly, to preclude s ummary judgment the dispute must

15 be genuine, that is , t he evidence must be “such that a reasonable jury could return a

16 verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

17

The Ninth Circuit has “has set a high standard for t he grant ing of s ummary

18 judgment in employment discrimination cases.” Schnidrig v. Columbia Mach., Inc., 80

19 F.3d 1406, 1410 (9t h Cir. 1996). V ery little evidence is required to survive summary

20 judgment in such cases “‘because t he ult imate question is one that can only be resolved

21 through a ‘searching inquiry’ – one that is most appropriately conducted by the factfinder,

22 upon a full record.’” Id. (citations omitted); see Chuang v. U niv . of Cal. Davis, 225 F .3d

23 1115, 1124 (9th Cir. 2000) (quoting Schnidrig).

24 II. Defendant’s Motion for Partial S ummary Judgment Re: Gregory Leach.

25

A. Is Plaintiff’s Claim Regarding Leach Time Barred?

26

Defendant argues that Plaintiff’s claim regarding Leach is untimely under 29 U .S.C.

27 § 626(d)(2) b ecause Leach did not file a ch arge of discrimination with the EEOC within 300

28 days of his termination. D oc. #48 at 7-14. P laintiff argues that the claim is not t ime barred

- 2 -

1 because a p rivat e charge is not required for the EEOC to bring an action under the ADEA.

2 Doc. #105 at 5. The Court agrees with Plaintiff.

3

Section 626(d)(2) p rovides, in pertinent part: “ No civil action may be commenced

4 by an individual under this section until 60 days after a charge alleging unlawful

5 discrimination has been filed with the [EEOC]. S uch a charge shall be filed . . . w ithin 300

6 days after the alleged unlawful practice occurred[.]” 29 U .S.C. § 626(d)(2) (e mphasis

7 added). O n its face, § 626(d)(2) applies to actions brought by indiv iduals, not the EEOC.

8 M oreover, the United States Supreme Court has held that “the EEOC’s role in combating

9 age discrimination is not dependent on t he filing of a charge; the agency may receive

10 information concerning alleged violations of t he ADEA ‘from any source,’ and it has

11 independent authority to investigate age discrimination.” Gilmer v. Interstate/Johnson

12 Lane Corp., 500 U.S. 20, 28 (1991) (quot ing 29 C.F .R. §§ 1624.4, 1626.13 (1990)). T he Court

13 thus concludes t hat t he 300-day limit set forth in § 626(d)(2) does not apply to Plaintiff’s

14 claims. See Massachusetts v. Bull HN Info. Sys., Inc., 143 F . Supp. 2d 134, 144-45 (D . M ass.

15 2001) (holding that the 300-day limit in § 626(d)(2) does not ap p ly t o claims brought by the

16 EEOC); Glass v. IDS Fin. Servs., Inc., 778 F . Supp. 1029, 1051 (D . M inn. 1991) (“ [T]he

17 EEO C’s ability to assert a d irect action is not predicated on the filing of a t imely charge[.]”)

18 (citing Gilmer, 500 U .S. at 28); EEOC v. Sperry-Univac Corp., No. C 81-0276J , 1982 WL 649,

19 *4 (D. Utah Nov. 29, 1982) (“ Nothing in the express language of t he A D EA or the

20 incorporated provisions of t he [Fair Labor Standards Act] conditions EEOC enforcement

21 actions upon the timely filing of private charges of discrimination under § 626(d).”).

22

Defendant further argues that Plaintiff’s claim regarding Leach is barred by

23 the statute of limitations contained in the Portal-to Portal Act, 29 U.S.C. § 255(a). D oc. #129

24 at 10-13. T he Court dis agrees. F ormer § 626(e) of t he ADEA incorporated by reference the

25 statute of limitations contained in § 255(a). 29 U .S.C. § 626(e) (1988); see Miller v.

26 Maxwell’s Int’l, Inc., 991 F .2d 583, 586 (9t h Cir. 1993) ( holding that the plaintiff’s ADEA

27 claims were not barred by the three-year limitations period contained in § 255 and

28 incorporated into former § 626(e)). T he Civil Rights Act of 1991, ho w ever, amended §

- 3 -

1 626(e) in p art by deleting the reference to § 255(a). P ub. L. No. 102-166, 105 S tat. 1071

2 (1991) (codified at 29 U .S.C. § 626(e)); see Sperling v. Hoffmann-La Roche, Inc., 24 F .3d 463,

3 464 n.1 (3d Ci r. 1994) (“ The Civil Rights Act of 1991 . . . amended section 626(e)(1) of t he

4 ADEA. U nder the current version of s ection 626(e), . . . s ection [255(a)] of t he P ort al-to

5 Portal Act is no longer expressly incorporated[.]”); Anderson v. Unisys Corp., 47 F .3d 302,

6 307-08 n.14 (8t h Cir. 1995) (“ [T]he Civil Right s A ct of 1991 . . . c hanged the applicable

7 statute of limitations in ADEA actions.”).2

8

The Court finds unpersuasive Defendant’s argument that, despit e Congress’s

9 elimination of t he explicit reference to § 255 i n § 626(e), the limitations period contained in

10 § 255 s till applies to ADEA claims because § 626(b) adop t s t he “procedures” set forth in

11 § 216 of t he Fair Labor Standards Act (“FLSA”), which in turn adop t s t he limitations period

12 in § 255. See Littell v. Aid Ass’n for Lutherans, 62 F .3d 257, 258-59 (8th Cir. 1995) (rejecting

13 the argument that § 626(e)’s former explicit reference t o § 255 w as mere surplusage by

14 virtue of the indirect reference to § 255 in § 626(b)).

15

The cases Defendant relies on are also unpersuasive because they do not hold that

16 the limitations period cont ained in § 255 applies to ADEA actions. See Doc. #129 a t 12.

17 In McConnell v. Thomson Newspaper s , Inc., 802 F . Supp. 1484 (E.D. Tex. 1992), t he district

18 court concluded that the EEOC’s claims were untimely under § 626(e) because it did not

19 bring suit within 90 days of notifying the person aggrieved that the EEOC proceedings had

20 terminat ed. 802 F . Supp. at 1500. T he court reached this conclusion by broadly construing

21

22

2The current version of § 626(e) provides, in pertinent part:

23

If a charge filed with the Commission under t his chapter is dismissed or the

24

proceedings of the Commission are otherwise t erminated by the Commission,

25

the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in [§] 630(a) of t his title

26

agains t t he respondent named in the charge within 90 da ys after the date of

27

the receipt of such notice.

28

29 U.S.C. § 626(e).

- 4 -

1 the EEOC as a “pers on” under § 630(a) on t he ground that the EEOC constitutes a “legal

2 representative” when it files an A D EA act ion on be half of i ndividuals. Id. at 1499. T his

3 Court does not agree with the reasoning in McConnell that the EEOC constitutes a

4 “pers on” as defined in § 630(a). See Wilkerson v. Martin Marietta Corp., 875 F . Supp.

5 1456, 1460 (D . Colo. 1995) (rejecting McConnell’s broad construction of t he term “person”

6 based on the compelling legislative his t ory predating the Civil Rights Act of 1991 and “the

7 absurd results which application of . . . [a] statute of limitations w ould have” on ADEA

8 actions brought by the EEOC).

9

In EEOC v. North Gibson School Corp., 266 F .3d 607 (7t h Cir. 2001), t he Seventh

10 Circuit held that the EEOC’s action was untimely under § 626(d) becaus e t he aggrieved

11 individuals had not filed timely charges of discrimination with t he EEOC. 266 F.3d at 616.

12 The court concluded that t he filing requirement in § 626(d) applied to the EEOC on t he

13 ground that it was “in privity” with the aggrieved individuals and acted as t heir

14 “representative” with respect to their int erests in monetary relief. Id. U nder controlling

15 Ninth Circuit law , however, employment discrimination actions brought by the EEOC are

16 not subject to a f iling requirement or a limit ations period because “[t]he EEOC vindicates

17 public p olicy by s uing in federal court . . . regardless of the type of relief sought[.]” EEOC

18 v. Occidental Life Ins. Co. of Cal., 535 F .3d 533, 539 (9t h Cir. 1976) (emphasis added), aff’d,

19 432 U.S. 355 (1977). “ [T]he fact that private parties may benefit from [an EEOC] action does

20 not detract from the public nature of those proceedings.” Id.

21

The district court in EEOC v. Oil Gear Co., 250 F . Supp. 2d 1193 (D . Neb. 2003), also

22 relied on the filing requirement in § 626(d) in holding that one of t he EEO C’s claim was

23 unt imely because the aggrieved individual did not file a t imely charge of discrimination.

24 250 F. Supp. 2d a t 1196. T he court failed to explain, however, why the filing requirement

25 in § 626(d)(2) – w hich explicitly refers claims brought by “individuals” – a pplied to the

26 EEOC’s claim. Cf. Gilmer, 500 U .S. at 28 (holding that “the EEOC’s role in combat ing age

27 discrimination is not dependent on the filing of a charge”).

28

The Court concludes that Plaintiff’s claim regarding Leach is not time barred

- 5 -

1 because no statute of limit at ions applies to ADEA actions brought by the EEOC. See

2 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U .S. 355, 359-72 (1977) (hol ding that no

3 statute of limitations applies to Title VII claims brought by t he EEO C because the EEOC

4 has the duty of investigating and attempting to conciliate claims and, “[u]nlike the typical

5 litigant against whom a s tatute of limitations might appropriately run, the EEOC is required

6 by law to refrain from commencing a civil action until it has discharged its administrative

7 duties”); EEOC v. AT&T Co., 36 F . Supp. 2d 994, 995-97 (S .D. Ohio 1998) (a dopt ing t he

8 reas oning of the Supreme Court in Occidental Life Insurance and holding that “there is no

9 specific statute of limitations with respect t o claims brought by the EEOC under the

10 ADEA”); Wilkerson, 875 F . Supp. at 1459-60 (hol ding t hat “ t here is no a pplicable statute

11 of limitations in age discrimination claims brought by the EEO C”); cf. SEC v. Rind, 991 F .2d

12 1486, 1491-92 (9th Cir. 1993) (c iting Occidental Life Insurance and holding that no s tat ut e

13 of limitations applies to civil enforcement actions brought by the Securities and Exchange

14 Commission).

15

Defendant states in its reply that the notion that the EEOC “may file litigation at any

16 time for any person . . . i s ‘utterly repugnant to the genius of our laws.’” D oc. #129 at 10-11

17 (quoting Occidental Life Ins., 432 U .S. at 376 (Re hnquist, J., dissenting)). A s the majority

18 opinion in Occidental Life Insurance explains, however, district courts have the power to

19 provide relief to a defendant t hat has been “significantly handicapped in making his

20 defense because of an inordinate EEOC delay in filing the action after exhausting its

21 conciliat ion efforts.” 432 U.S. at 373. T his is essentially a laches issue, which is addres s ed

22 below.

23

B. Does the S ingle Fi l ing Rule or S imilarly S ituated Requirement Apply to

Plaintiff’s Claim Regarding Leach?

24

25

Defendant states that Plaintiff “is attempting to bootstrap relief for L each into t he

26 Charging Parties’ suit, even though Leach did not file a t imely administrative charge with

27 the EEOC.” D oc. #48 a t 8. D efendant contends that Leach “should not be allowed to

28 ‘piggyback’ onto the suit of t he Charging Parties under the ‘single filing rule.’” Id. (citing

- 6 -

1 Grays on v . K Mart Corp., 79 F .3d 1086, 1101 (11t h Cir. 1996) (holding that the single filing

2 or “piggybacking” rule applies to ADEA cases)). D efendant further contends that to

3 satisfy the single filing rule and the “similarly s it uat ed” requirement in 29 U.S.C. § 216(b),

4 Plaintiff “must establish that Leach’s claim co nsists of ‘similar discriminatory treatment’

5 and t hat it occurred ‘in the same time frame’ as the representative charge.” Id. at 9 (citing

6 Hipp v. Liberty Nat’l Life Ins. Co., 252 F .3d 1208, 1217 ( 11th Cir. 2001) (holding that

7 plaintiffs must show that they are “similarly situated” t o bring a representative suit under

8 § 216(b))).

9

Plaintiff argues that t hat the “single filing rule” line of cas es does not apply

10 because the EEOC has the authority to seek relief on Leach’s behalf regardless of the

11 timeliness of hi s claim and thus has no ne ed to “piggyback” his claim onto the timely

12 claims of t he charging parties. D oc. #105 a t 6-7. P laintiff further argues that it is not

13 subject to the “similarly s ituated” requirement in 29 U.S.C. § 216(b) because that section

14 governs act ions brought by “employees,” not actions brought by the EEOC, which are

15 governed by 29 U .S.C. §§ 216(c) and 217. Id. at 7 (citing Donovan v. Univ. of T ex. at El

16 Pas o, 643 F .2d 1201, 1204 (5t h Cir. 1981); Flavel v. Svedala Indus., Inc., 875 F . Supp. 550,

17 553 (E.D. Wis. 1994); Glass v. IDS Fin. Servs., Inc., 778 F. Supp. 1029, 1081 (D. M inn. 1991)).

18

The Court agrees with Plaintiff. T he ADEA enforcement section incorporates by

19 reference the enforcement provisions of t he FLSA, including §§ 216 a nd 217. 29 U .S.C.

20 § 626(b) (“ The p rovisions of t his chapter shall be enforced in accordance with the powers,

21 remedies, and procedures provided in sections . . . 216 . . . a nd 217 of t his t it le[.]”). Section

22 216(b) provides t hat an employer may be sued “by any one or m ore employees for a nd in

23 behalf of hi mself or t hemselves and other employees similarly situated.” 29 U .S.C.

24 § 216(b) (e mphasis added); see Flavel, 875 F . Supp. at 553 (“ T he A D EA incorporates by

25 reference the enforcement provisions of t he [FLSA], including 29 U .S.C. § 216(b), w hich

26 allows an employee to sue his or her employer ‘for and in behalf of himself or [herself] and

27 other employees similarly situated.’”) (alteration and emphasis in original). I n cont ras t,

28 ADEA suits brought by the EEOC are governed by §§ 216(c) and 217, ne ither of w hich

- 7 -

1 cont ain a “ similarly situated” requirement. 2 9 U.S.C. §§ 216(c), 217; see Glass, 778 F . Supp.

2 at 1081 (“ The EEOC’s power to bring a direct s uit res t s on t wo sections of t he ADEA, 29

3 U.S.C. §§ 216(c) & 217, w hich do not contain the ‘similarly situated’ standard applicable

4 to private suits brought [pursuant] to 29 U.S.C. § 216(b).”).3

5

The Court concludes that the “similarly situated” requirement in § 216(b) does not

6 apply to Plaintiff’s claims as a matter of l aw because Plaintiff properly brought this action

7 pursuant to §§ 216(c) and 217, not § 216(b). D oc. #1 ¶ 7; see Flav el, 875 F . Supp. at 553

8 (“Unlike a p rivate representative suit, the EEOC’s authority to bring such an action is not

9 limited t o circumstances where the plaintiffs are ‘similarly situated.’ . . . [ T]he EEOC may

10 proceed in this matter on behalf of the plaintiffs whether or not they are ‘similarly

11 situated[.]’”); Donovan, 643 F .2d at 1204 (s tating that the language of § 216(b) m akes clear

12 that suits under § 217 “ are to be brought by the Government, and that the Government has

13 the pow er t o seek class-wide relief for t he victims without resorting to Rule 23”). T he Court

14 further concludes that Plaintiff need not rely on the single filing rule with respect to

15 Leach’s claim b ecaus e A DEA suits brought by the EEOC are not subject to a s tatute of

16 limitations. See Occidental Life, 432 U.S. at 359-72.

17

Defendant’s reliance on Grayson and Hipp is misplaced because both

18 cases involved private suits by employees under § 216(b), not actions by t he EEOC under

19 §§ 216(c) and 217. See Grayson, 79 F .3d at 1095-1102 (hol ding that the similarly s ituated

20 requirement in § 216(b) i s not stringent and that an individual may piggyback onto the

21

22

3Section 216(b) provides that an employee may obtain all appropriate relief,

23

including unpaid minimum wages and overtime compensation, lost wages , liquidated damages, employment , reinstatement, and promotion. 29 U .S.C. § 216(b). U nder § 216(c),

24 the EEOC may bring an action on be half of a n employ ee “to recover the amount of unp aid

25

minimum wages or overtime compensation and an equal amount as liquidated damages.” 29 U.S.C. § 216(c). O nce the EEOC files suit seeking s uch relief, the employee’s right to

26 bring an action under § 216(b) t o obtain the same relief terminates. 29 U .S.C. § 216(b)-(c).

27 Under § 217, the EEOC may bring an action to obtain injunctive relief with respect to the payment of minimum wages or overtime compensat ion due employees. 29 U .S.C. § 217; see
28 Donovan, 643 F.2d at 1203-04, nn.5-7.

- 8 -

1 timely charge filed by a named plaintiff in class suits brought under § 216(b)); Hipp, 252

2 F.3d at 1217 (di scussing the similarly situated requirement and the piggybacking rule in

3 class suits brought by employees under § 216(b)) (c iting Grays on). T he only ADEA case

4 D efendant cites where the EEOC was a p laintiff is EEOC v. MCI International, Inc., 829 F .

5 Supp. 1438 ( D .N .J. 1993). D oc. #48 at 10. In t hat case, however, it appears that the EEOC

6 sought to obtain damages under § 216(b). 829 F . Supp. at 1445 (d iscussing §§ 216(b),

7 216(c), and 217 a nd stating that the EEOC brought the action “pursuant to these

8 provis ions ”). T he district court concluded that the similarly situated requirement of §

9 216(b) was not met, but did so w ithout addressing whether the EEOC could properly bring

10 an ADEA action under § 216(b). Id. T he Court finds the holding in MCI International

11 inapposite because Plaintiff has not brought this action under § 216(b). See D oc. #1 ¶ 7.

12

C. Is Plaintiff’s Claim Regarding Leach Barred by the Doctrine of Laches?

13

Leach was terminated on July 16, 1999 a nd filed his charge of dis crimination nearly

14 four years later on J une 30, 2003. D oc. #49 ¶ ¶ 22, 59. P laintiff commenced this action on

15 September 18, 2003 and added Leach as a class member on April 6, 2004. Docs. ##1, 33.

16

Defendant argues that Plaintiff’s claim regarding Leach is barred by the equitable

17 doctrine of laches . Doc. #48 at 14-15 (citing EEOC v. Alioto Fish Co., 623 F .2d 86 (9t h Cir.

18 1980)). D efendant states that although most of t he delay was caused by Leach himself,

19 Plaintiff has perpetrated the delay for a t least another nine months by w ait ing unt il April

20 2004 t o add Leach as a class member Id. at 14. D efendant further states that Plaintiff was

21 aware of Leach’s claim b efore it filed suit and “acted in a w ay that was inherently

22 prejudicial to [Defendant] by telling [D efendant] that Leach’s charge would not be

23 considered because it was untimely.” Id. at 15. D efendant states in its reply t hat it has

24 been prejudiced by the d elay because Jon J affe, D efendant’s former Regional President,

25 could not specifically recall at his deposition in January 2005 w hether Leach’s sales were

26 low. Doc. #129 at 14 (citing Doc. #106 ¶ 21).

27

Plaintiff argues that Defendant has waived the defense of laches by not affirmatively

28 alleging it in a pleading and that the defense does not apply to suits brought by the EEOC

- 9 -

1 as a mat t er of law. D oc. #105 at 10-11. P laintiff further argues that Defendant has not met

2 its burden of establishing the elements of the defense. Id. at 11.

3

T he Court finds that Defendant has not waived the defense with respect to Leach

4 because Plaintiff identified Leach as a clas s member not in a p leading, but in a n otice to the

5 Court to which no res p ons ive pleading was required. See Docs. ##1, 33. T he Court further

6 finds that laches may properly be raised as a d efens e in this case because the defense

7 applies to employment discrimination actions brought by the EEOC when such act ions are

8 not governed by a s tatute of limitations. See Occidental Life Ins., 432 U .S. at 373 (stating

9 that district courts have the power to provide relief to a defendant that has been

10 “significantly handicapped in making his defense because of an inordinate EEOC delay in

11 filing the action”); Alioto Fish Co., 623 F .2d at 88 (“ Laches . . . m ay be used as a defense

12 t o a T itle VII action.”); Miller v. Maxwell’s Int’l, Inc., 991 F .2d 583, 586 (9t h Cir. 1993)

13 (stating in an ADEA action that “laches is inapplicable w hen Congress has provided a

14 statute of limitations to govern the action”).

15

“The defense of laches ‘requires proof of (1) lack of diligence by the party against

16 whom the defense is asserted, and (2) prejudice to the party asserting the defense.’”

17 Bratton v. Bethlehem Steel Corp., 649 F .2d 658, 666 ( 9th Cir. 1980) (citations omitted).

18 Prejudice should not lightly be assumed from delay in employment discriminat ion actions

19 because some delay in such actions “will be attributable to the EEOC’s time-consuming .

20 . . efforts at conciliation.” Id. at 667 (c iting Occidental Life Ins. Co. of Cal. v. EEOC, 432

21 U.S. 355, 3 68-72 (1977)). M oreover, “[l]aches questions are seldom susceptible of

22 resolution by summary judgment, because ‘where laches is raised as a d efens e t he factual

23 issues involved can rarely be resolved without some preliminary evidentiary inquiry .’” Id.

24 at 666 (citations and alterations omitted).

25

Because the parties did not brief the issue, it is unclear to the Court w het her Leach’s

26 delay in filing his charge of discrimination may be imputed to Plaintiff under t he laches

27 doctrine. M oreover, the Court cannot determine from the record before it whether the

28 EEOC’s delay in adding Leach as a clas s member was unreasonable. N or can the Court

- 10 -

1 determine at the summary judgment stage whether Defendant has suffered prejudice from

2 the delay sufficient to sup p ort a lach es defense. See Bratton, 649 F .2d at 666 (s tating that

3 p rejudice should not lightly be presumed and that laches can rarely be res olved on

4 summary judgment); cf. Alioto Fish Company, 623 F .2d at 87-89 (a ffirming summary

5 judgment on t he ground of l aches w here the undisputed facts showed that the defendant

6 was severely prejudiced when the EEOC brought s uit more than five years after the charge

7 was filed and many of the key witnesses and records were unavailable).

8

If Defendant intends to raise the laches defense at trial, the parties shall identify it

9 as a co ntested issue in their proposed pretrial order and address whether Leach’s delay

10 may be imputed to the EEOC for purposes of the defense. T he p arties shall also address

11 how they propose to try the defense given that it is an equitable issue for t he Court to

12 decide and that t he Court does not intend to have a separate bench trial or e videntiary

13 hearing on the issue.

14

D. Has Plaintiff S atisfied Its Conciliation Obligations?

15

Defendant argues that Plaintiff’s claim regarding Leach should be dismissed

16 because Plaintiff failed to conciliate the claim. D oc. #48 at 15-16.4 P laintiff argues that it

17 has no legal obligation to conciliat e the claims of each and every potential class member.

18 Doc. #105 a t 8-9. P laintiff further argues that its conciliation efforts in this matter were

19 sufficient because it notified Defendant that it may file a clas s age discrimination suit and

20 afforded Defendant t he opportunity to resolve the class claim. Id. at 9; see Doc. #113 a t

21 12-14.

22

The Court agrees with Plaintiff. T he Ninth Circuit has held that in class suits,

23 t he EEO C is not required to conciliate on behalf of each potential class member. See EEO C

24 v. Bruno’s Rest., 13 F .3d 285, 289 (9t h Cir. 1993) (citing EEOC v. Rhone-Poulenc, Inc.,

25 876 F.2d 16 (3d Ci r. 1989)); see also EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101-02 (6t h

26

27 4Defendant makes the same argument with respect to Plaintiff’s claim regarding
28 Charlyne Sheehan. See Doc. #68 at 12-13.

- 11 -

1 Cir. 1984) (hol ding t hat because the EEOC sufficiently conciliated a clas s claim t hat

2 reasonably grew out of the initial charge, no additional efforts at conciliation were

3 required); EEOC v. GM Corp., 826 F . Supp. 1122, 1127 (N .D. Ill. 1993) (holding that the

4 EEOC’s conciliation efforts were sufficient and permissibly premised on the class claim);

5 EEOC v. Equicredit Corp. of Am ., N o. 02-CV-844, 2002 WL 31371968, *4 (E .D. Pa. Oct. 8,

6 2002) (holding that the EEOC’s refusal t o identify a potential class member did not render

7 its conciliation efforts inadequate) (citing Keco Indus., 748 F .2d at 1102). In l ight of t hese

8 authorities, Plaintiff satisfied its conciliation obligation in this case by attempting to

9 conciliate the class claim. M oreover, case law teaches that substantial deference should

10 be given the EEOC in determining what level of conciliation effort is appropriate in a

11 particular case. See EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F . Supp. 1059, 1091

12 (C.D. Ill. 1998) (s tating that the conciliation requirement is an easy burden to satisfy and

13 that substantial discretion is vested in t he EEOC with respect to conciliation); EEOC v.

14 N. Cent. Airlines, 475 F . Supp . 667, 669 (D . M inn. 1979) (“ [I]f some conciliation efforts have

15 occurred, substantial deference should be given t o t he EEOC’s determination that

16 conciliation efforts have failed[.]”).

17

E. Is There a Genuine Issue of Material Fact Regarding Discrimination?

18

Defendant argues that Plaintiff has not made a p rima facie case of discrimination

19 becaus e Leach was not qualified for his position or meeting Defendant’s expectations and

20 Plaintiff cannot show that similarly situated non-p rotected persons were treated more

21 favorably. D oc. #48 a t 17 (c iting Doc. #49 ¶ 26). T o establish a prima facie case of age

22 discrimination, Plaintiff must show that Leach was (1) a memb er of the protected class

23 (at least age 40), (2) performing his job satisfact orily, (3) terminated, and (4) replaced by a

24 younger employee with equal or i nferior qualifications. See Messick v. Horizon Indus.,

25 Inc., 62 F .3d 1227, 1229 (9t h Cir. 1995); Coleman v . Q uaker Oats Co., 232 F .3d 1271, 1281

26 (9th Cir. 2000). “ The requisite degree of p roof t o es t ablish a prima facie case is minimal;

27 plaintiff need only offer evidence giving rise to an inference of unlawful discrimination.”

28 Messick, 62 F .3d at 1229; see Coleman, 232 F .3d at 1282 (s tating that the prima facie case

- 12 -

1 standard is a “low threshold”); Wallis v. J.R. Simplot Co., 26 F .3d 885, 889 (9t h Cir. 1994)

2 (“The amount of e vidence that must be p roduced in order to create a prima facie case is

3 ‘very little.’”) (citation and alterations omitted).

4

Plaintiff has presented evidence of the following: Leach was more than 40 years old

5 when he was terminated and had more t han 30 years experience in real estate sales and

6 general contracting, eight of t hos e years in supervisory duties. D oc. #106 ¶ 45. D efendant

7 hired Leach as a r eal estate sales manager in December 1996 and during his emp loy ment

8 Leach was a l icens ed real estate agent and associate broker. Id. ¶ 3. Leach received

9 “generally positive” performance evaluations and a bonus from Defendant shortly before

10 his termination in July 1999. Id. ¶¶ 32-35. Leach ’s former duties as a s ales manager were

11 ass igned t o M ichael Dowell, who was less than 40 y ears old when he assumed the duties

12 and had les s real es tate and supervisory experience than Leach. Id. ¶¶ 43, 45-46. T hese

13 facts constitute s ufficient prima facie evidence that Leach performed his job satisfactorily

14 and that his former duties were assigned to a younger employee with equal or inferior

15 qualifications. See Messick, 62 F .3d at 1229 (“ [T]here was s ufficient evidence for t he trier

16 of fact to infer that M essick was performing satisfactorily.”); Coleman, 232 F .3d at 1281

17 (holding that when a discharge res ults from a reduction in workforce the plaintiff need not

18 show that he was actually replaced, but may show that the employer had a continuing need

19 for his skills and services and that his duties were still being performed).

20

Once a p rima facie case has been established, the burden shifts to Defendant to

21 articulate a legitimate non-dis criminatory reason for the termination. See Wallis, 26 F .3d

22 at 889. T he EEOC must then produce evidence sufficient to create a genuine issue of

23 material fact as to whether Defendant’s stated reason is pretextual. Id.

24

Defendant states that Leach was terminated because his productivity was not

25 acceptable. D oc. #48 at 17 (citing D oc. #49 ¶ 26; see Doc. #89 ¶ 26). A lthough this would

26 be a legitimate, non-discriminatory basis for terminating an employee, the Court finds that

27 t he EEO C has presented sufficient evidence of discriminatory intent to raise a q uestion of

28 fact as to whether Defendant’s stated reason is pretextual. S pecifically, Leach has t estified

- 13 -

1 that David K itnick, one of D efendant’s Division Presidents, bragged during a meeting that

2 he needed to “get rid of t he st aff t hat he had” and “bring in younger people to fulfill his

3 mission.” D oc. #106 ¶ 7. U nder Ninth Circuit law, this direct evidence of di scriminatory

4 intent, standing alone, is sufficient to create a t riable issue with respect t o p retext. See

5 Schnidrig v. Columbia Mach., Inc., 80 F .3d 1406, 1409 (9t h Cir. 1996) (re versing summary

6 judgment for the defendant and stating that whet her discriminatory remarks affected the

7 decision-making process was “a question appropriately answered by a trier of fa ct ”);

8 Godwin v. Hunt Wesson, Inc., 150 F .3d 1217, 1221 (9th Cir. 1998) (“Godwin testified that the

9 president of t he company . . . m ade derogat ory comments about women at meetings. . . .

10 Godwin’s direct evidence of discriminatory animus satisfies the required showing at the

11 pretext stage.”); Coghlan v. Am. Seafoods Co., 413 F .3d 1090, 1095 (9t h Cir. 2005)

12 (“Because direct evidence is so probative, the plaintiff need offer ‘very little’ direct

13 evidence to raise a genuine issue of material fact.”) (citing Godwin).

14

Defendant argues that Plaintiff “has mischaracterized the facts” because Kitnick’s

15 alleged statement was vague and referred to past conduct since “[p]eople do not normally

16 brag about something that they have not done yet.” D oc. #129 a t 2. D efendant essentially

17 asks the Court to construe the evidence in its favor. A t the s ummary judgment stage,

18 however, the Court must construe all evidence in favor of t he nonmoving p arty – i n this

19 cas e, t he EEOC. See Anderson v. Liberty Lobby, Inc., 477 U .S. 242, 255 (1986); Raad v.

20 Fairbanks N. St ar Borough Sch. Dist., 323 F .3d 1185, 1 194 (9th Cir. 2003) (reversing

21 summary judgment for the defendant because “the district court . . . failed to draw all

22 reasonable inferences in favor of Ra ad, the nonmoving party, and imp ermissibly

23 substituted its judgment concerning the weight of the evidence for the jury’s”).

24

Plaintiff has also presented sufficient circumstant ial evidence of pretext. Leach has

25 tes t ified that at the time of his termination his productivity was increasing. D oc. #106 Ex. C

26 ¶ 6. Leach has further testified t hat he was never advised that his performance was

27 deficient or t hat improvement was necessary to retain his job even though Defendant had

28 a policy of advising employees of performance problems and attempting corrective action

- 14 -

1 before terminat ing t he employees. Id. ¶¶ 27-28. L each’s personnel forms do not indicate

2 that he was terminated for lack of productivity. Id. ¶ 17. Ra ther, the forms indicate that he

3 was simply laid off and that his termination was a “ cut back in staff.” Id. T he forms do not

4 mention a productivity problem even though Defendant’s policy required the terminating

5 official to set fort h a specific reason for the termination and the Employment Separation

6 Form completed for Leach provided space for such reas on coupled with the instruction to

7 “[b]e as specific as possible.” Id. ¶¶ 16-18. S uch indirect evidence creates a question of

8 fact on p retext that must be resolved by the jury at trial. See Godwin, 150 F .3d at 1222

9 (stating that documents prepared cont emp oraneously with the challenged action that are

10 inconsistent with the defendant’s stated reason for the action are probative of p retext);

11 Reeves v. Sanderson Plumbing Prods., 530 U .S. 133, 147 (2000) (“ Proof that the

12 defendant’s explanation is unwort hy of c redence is simply one form of c ircumstantial

13 evidence that is p robative of intentional discrimination, and it may be quite persuasive.”).

14

Defendant has presented no evidence contemporaneous with Leach’s termination

15 showing that Leach was not productive. Ra ther, Defendant relies on t he post-termination

16 t estimony of Leach’s supervisors. D oc. #48 at 17 (citing Doc. #49 ¶ 26; see Doc. #89 ¶ 26).

17 Whether s uch t es t imony is to be believed is a mat ter of credibility for the jury to determine.

18 “Although ‘shifting explanations are acceptable when viewed in the context of other

19 surrounding events, such weighing of t he evidence is for a jury, not the [Court].’”

20 Godwin, 150 F .3d at 1222 (citation and alteration omitted); see Anderson v. Liberty Lobby,

21 Inc., 477 U .S. 242, 255 (1986) (“ Credibility determinations, the weighing of evidence, and

22 the drawing of i nferences from the facts are jury functions, not those of a judge[.]”); Harris

23 v. Itzhaki, 183 F .3d 1043, 1051 (9t h Cir. 1999) (“ Is s ues of credibility, including questions of

24 int ent , s hould be left to the jury. When a plaintiff has provided direct and circumstantial

25 evidence of discriminatory intent, she . . . may be able to survive a mo tion for summary

26 judgment on that evidence alone.”) (citations omitted).

27

Defendant contends that Leach’s subjective beliefs regarding his qualifications and

28 performance are irrelevant and that the only issue is whether Defendant honestly believed

- 15 -

1 that Leach w as not qualified and lacked productivity. D oc. #129 a t 4-7 (c iting Palucki v.

2 Sears, Roebuck & Co., 879 F .2d 1568, 1 571 (7t h Cir. 1989)). D efendant further contends

3 that Plaintiff cannot “show that the differences between D owell’s qualifications and those

4 of Leach are significant enough to ‘jump off t he page and slap you in the face.’” Id. at 6-7

5 (citing D eines v . Tex. Dep’t of Protective & Reg. Servs., 164 F .3d 277, 279 (5t h Cir. 1999)).

6 Under Ninth Circuit law, however, subjective evidence of an employees’s qualifications

7 and job performance may be relevant on t he question of p retext. See Odima v. Wes tin

8 T ucs on H otel Co., 991 F .2d 595, 602 (9t h Cir. 1993) (hol ding that the plaintiff’s superior

9 qualifications standing alone were enough to prove pretext). T he Ninth Circuit has “never

10 followed the Fifth Circuit in holding that the disparity in [employees’] qualifications ‘must

11 be so apparent as to jump off the page and slap [you] in the face to sup p ort a finding of

12 pretext.’” Raad, 323 F .3d at 1194 (brackets added; emphasis in original). M oreover,

13 whether Defendant honestly believed that Leach was not qualified and lacked productivity

14 is an issue of fact for t he jury . See Harris, 183 F .3d at 1051; Braxton-Secret v. Robins Co.,

15 769 F.2d 528, 531 (9t h Cir. 1985) (“ Questions involving a person’s state of mind . . . a re

16 generally factual issues inappropriate for resolution by summary judgment.”).

17

For these reasons, the Court will deny Defendant’s motion for p artial summary

18 judgment regarding Leach.5

19 II. Defendant’s Motion for Partial S ummary Judgment Re: Charlyne S heehan.

20

Defendant argues that Plaintiff cannot make a prima facie case of di scrimination

21 with respect to Sheehan because she voluntarily resigned when the new home community

22 to which she was assigned closed. D oc. #68 a t 6-7. P laintiff argues that it has made a

23 prima facie case because it has presented evidence that Defendant terminated Sheehan’s

24 employment. D oc. #113 a t 7-11. T he Court finds that questions of material fact preclude

25 summary judgment.

26 5The Court will grant Defendant’s motion to exceed p age limits and motion to
27 supplement its statements of fa cts. D ocs. ##101, 131. T he Court will deny as moot
28 Plaintiff’s motion to strike facts and evidence submitted by Defendant. See Doc. #104.

- 16 -

1

Plaintiff has presented evidence of t he following: D efendant hired Sheehan as a

2 new home sales consultant in February 1996. D oc. #114 ¶ 1. M ichael Dowell, Sheehan’s

3 supervisor, assigned her to the Park Rowe community in February 2000. Id. ¶ 5. P ark Rowe

4 w as scheduled to close in M arch 2000. Id. Wh en the advertising for Park Rowe had been

5 taken down, Sheehan discussed wit h D owell the possibility of transferring to another

6 community. Id. ¶¶ 9, 11. D owell repeatedly told Sheehan that there w ere no open

7 communities to which she could be transferred. Id. ¶ 11. S heehan t hus determined that her

8 services were no longer needed by Defendant. Id. ¶ 35.

9

Defendant’s notice to Sheehan regarding her change in employment shows both

10 that her departure was “voluntary” and “ involuntary.” Id. ¶ 36. T he notice indicates that

11 her “involunt ary” departure and “[l]ayoff” were effective M ay 8, 2000, t he same date

12 charging part ies Carol Nikrant and Gordon Cameron were laid off by Defendant. Id. ¶¶36-

13 39.6 T he notice further indicates that Sheehan w as laid off because there was “no new

14 community” available. Id. ¶ 36. S heehan wrote at the bot t om of t he notice that she “was

15 laid off because there was no new community for [her] to go to” and that she “would have

16 stayed on with [Defendant] otherwise.” Id. ¶ 37.

17

These circumstances, construed in P laintiff’s favor, constitute evidence that

18 Sheehan was terminated and satisfy the low prima facie case standard. See Messick v.

19 Horizon Indus., Inc., 62 F .3d 1227, 1229 (9t h Cir. 1995) (“ The requisite degree of p roof to

20 establish a p rima facie cas e is minimal[.]”); Coleman v. Quaker Oats Co., 232 F .3d 1271,

21 1281 (9th Cir. 2000) (s tating t hat t he p rima facie case standard is a “low threshold”); see

22 also Little v. Windermere Relocation, Inc., 301 F .3d 958, 971 (9t h Cir. 2002) (revers ing

23 summary judgment for t he defendant on T it le VII and wrongful discharge claims in part

24 because there were issues of fact as to whether the plaintiff resigned or was terminated).7

25

26

6Charging party Jacque Judge w as laid off one week earlier on M ay 1, 2000. Id. ¶ 39.

27 7Defendant does not addres s the notice in its reply, stating only that “there is
28 absolutely no evidence that [it] intended to or did terminate Sheehan.” Doc. #146 at 4.

- 17 -

1

Defendant argues that Plaintiff has p resented no evidence of discrimination even

2 if Sheehan is determined to have been terminat ed. D oc. #68 a t 7. A s discussed above,

3 however, Leach testified that Kitnick said he had to get rid of the staff and “bring in some

4 younger peop le.” D oc. #114 ¶ ¶ 52-53. N ikrant has testified that Dowell asked her,

5 “Just how old of a p erson is J acque Judge?” Id. ¶ 54. D owell made the same inquiry to

6 former sales consultant M arilyn Harris. Id. Ki t nick’s statement coupled with Dowell’s

7 inquiries constitute direct evidence of discrimination sufficient to survive summary

8 judgment. See Schnidrig v. Columbia Mach., Inc., 80 F .3d 1406, 1409 (9t h Cir. 1996)

9 (reversing summary judgment for t he defendant where the plaintiff was told that he would

10 not be considered for a p romotion because the defendant want ed s omeone younger for t he

11 job); Cordova v. State Farm Ins. Co., 124 F .3d 1145, 1149-50 , n.5 (9th Cir. 1997) (reversing

12 summary judgment for t he defendant and stating that the fact that a manager’s

13 discriminatory comments were recounted by the plaintiff’s coworkers did not lessen the

14 probative value of t he comments); EEOC v . Pape Lift, Inc., 115 F .3d 676, 684 (9t h Cir. 1997)

15 (“[Defendant] would have this court hold that discriminatory remarks are tied to the

16 decision proces s only if a decision maker said something to the effect of ‘I’m firing you

17 because you are too old.’ F ew employers who engage in illegal discrimination, however,

18 express their discriminatory tendencies in such a d irect fashion[.]”); Coghlan v. Am.

19 Seafoods Co., 413 F .3d 1090, 1095 n.6 (9t h Cir. 2005) (“ [W]hen evidence establishes the

20 emp loyer’s animus toward the class to which the plaintiff belongs, the inference to the fact

21 of dis crimination against the plaintiff is sufficiently small that we have treated the evidence

22 as direct.”) (citing Cordova).

23

Plaintiff has also p res ented sufficient circumstantial evidence of pretext. C onstrued

24 in it s favor, Plaintiff’s evidence shows the following: S heehan could have been transferred

25 to a new community when the Park Rowe communit y closed. D oc. #114 ¶ ¶ 12, 14-16.

26 Defendant transferred sales cons ultants younger than Sheehan from Park Rowe to other

27 communities. Id. ¶¶ 6-7, 30-31. D efendant was hiring sales consultants who were less than

28 40 y ears old and less experienced than Sheehan for new communities at the same time

- 18 -

1 Dowell was t elling her that no new communities were available. Id. ¶¶ 17-29. S heehan was

2 laid off on t he same date as Cameron and N ikrant , both of w hom were over 40 y ears old.

3 Id. ¶ 39. S heehan and the charging parties were the only Arizona sales consultants who

4 w ere laid off instead of being transferred when their respective communities clos ed. Id. ¶

5 34.

6

A jury could reasonably conclude from this evidence that Defendant’s stated

7 reason for Sheehan’s departure – that there were no new communities to which s he could

8 be transferred – i s unworthy of c redence. See Reeves, 530 U .S. at 147 (“ Proof that the

9 defendant’s explanation is unworthy of c redence is simply one form of c ircumstantial

10 evidence that is probative of intentional discrimination, and it may be quite persuasive.”).8

11 The Court will deny Defendant’s motion for partial summary judgment regarding Sheehan.

12 III. 13

Defendant’s Motion for Partial S ummary Judgment Re: Carol Nikrant, Jacque Judge, and Gordon Cameron.

14

Defendant states that the charging parties were laid off because of the closing

15 of their communities and p erformance issues. D oc. #70 a t 5 (c iting Doc. #49 ¶ 45).

16 Defendant argues that Plaintiff has no direct evidence of discrimination and cannot

17 otherwise show that Defendant’s stated reasons for terminating the charging parties were 18 pretextual. Id. at 7-10.9

19

20

8Defendant contends that any inference of discrimination is negated because

21 Sheehan had been promoted from a “rover” position to a full-time assignment shortly before her departure. D oc. #68 a t 7. T his evidence mus t be w eighed against the evidence
22 recounted above, a task for the jury.

23

9Defendant also argues that the charging parties were not qualified for t heir

24 p os itions or meeting Defendant’s expectations. Id. ¶ 9 (citing Doc. #49 ¶ 26). T he evidence

25

Defendant relies on i n support of i t s argument , however, refers to Leach, not the charging parties. See Doc. #49 ¶ 26 (“Leach was discharged because he was unable to achieve

26 adequate or c onsistent productivity[.]”). M oreover, the Court finds that Plaintiff has

27 presented sufficient evidence to make a p rima facie case with respect to the charging parties. See Docs. ##116 at 7-9; 117 ¶¶ 77, 79-81, 93, 96, 119, 121, 125-28, 146, 159, 182, 217-
28 18.

- 19 -

1

As noted above, Kitnick’s comment regarding his desire to “bring in some younger

2 people” coupled with Dowell’s inquiries regarding Judge’s age constitute direct evidence

3 of discrimination sufficient to survive summary judgment. D oc. #116 at 6-7 (c iting Doc.

4 #117 ¶¶ 25-29). P laintiff has also presented sufficient circumstantial evidence of p retext to

5 survive summary judgment . Id. at 9-21. T he Court finds that there are genuine issues of

6 material fact as to (1) whether Defendant falsely told the charging parties that there were

7 no communities to which they could be transferred,10 and (2) whether t he charging parties

8 were terminated because of p erformance problems.11 T he Court will deny Defendant’s 9 motion for partial summary judgment regarding Nikrant, Judge, and Cameron.12

10 IV. 11

Defendant’s Motion for Partial S ummary Ju dgme nt Re: Limitation of D amages for Gregory Leach.

12

Defendant argues that the potential damage p eriod for Leach is limited, as a mat ter

13 of law, to the time between his terminat ion on J uly 16, 1999 a nd Defendant’s sale of i ts

14 Vent ana Lakes community to Shea Homes on N ovember 1, 2000. D oc. #90 a t 1-2 (c iting

15 Sivell v. Conwed Corp., 666 F . Supp. 23, 25-26 (D . Conn. 1987)). P laint iff dis agrees based

16 on the following undisputed evidence: L each’s job duties as a s ales manager at Ventana

17 Lakes included new home sales and he was hired as a salesman by Roy ce Homes after his

18 t erminat ion. D oc. #110 ¶ ¶ 7-8. W hen Ventana Lakes was sold, Dowell and Barry Grant,

19 Defendant’s P res ident , told the employees that if they wanted to stay on w ith Defendant

20 positions would be found for t hem and that t hey were welcome to come back if they took

21 jobs with Shea and did not like them. Id. ¶ ¶ 2-3. O ne employee stayed on with Defendant

22

23

10See Docs. ##116 at 10; 117 ¶¶ 33-34, 39-41, 47-48, 68-77, 79-100.

24

11See Docs. ##116 at 10-13; 117 ¶¶ 35, 49, 51, 54-59, 65-66, 101-14, 117, 136-37, 147,

25 159-63, 168, 182, 185-86, 196, 210, 216-18.

26

12The Court will deny as moot Plaintiff’s motion to strike facts and evidence

27 submitted by D efendant. D oc. #115. T he Court will grant Defendant’s motion to supplement replies and deny its motion to strike evidence as moot because the Court did

28 not consider the challenged evidence. Docs. ##145, 148.

- 20 -

1 and two employees were hired by Shea. Id. ¶¶ 4-6.

2

Construing this evidence in Plaintiff’s favor, the Court finds that there are genuine

3 issues of material fact as to whether Leach would have remained w it h Defendant or been

4 hired by Shea if he had not been terminated prior to the sale of Ventana Lakes. See Bonur a

5 v. Chase Manhattan Bank, N.A., 629 F . Supp. 353, 356 (S .D.N.Y. 1986) (hol ding that the

6 defendant’s liability to ADEA plaint iffs did not end with the sale of the division in which

7 they worked prior to their termination because there was evidence that they w ould have

8 been retained by the defendant or i ts successor); Gibson v. Mohawk Rubber Co., 695 F .2d

9 1093, 1098 (8t h Cir. 1982) (“ [T]he jury reas onably could have found t hat M ohawk would

10 have retained Gibson after it closed its West Helena facility. T hus, the district court did

11 not err in refusing to limit Gibson’s recovery as a mat ter of law to the period prior to the

12 West Helena plant’s closure.”).1 3 The Court will deny Defendant’s motion for partial

13 summary judgment regarding limitation of damages for Leach.

14 V. 15

Defendant’s Motion for Partial S ummary Judgment Re: Limitation of D amages for Certain Claimants.

16

Defendant argues that Nikrant, Sheehan, Cameron, and Judge are entitled to no

17 backpay or limited backpay because they failed t o mitigate their damages. D oc. #92 at 1.

18 D efendant has the burden of p roof on t his issue. See Odima v. Westin Tucson Hotel, 53

19 F.3d 1484, 1497 (9t h Cir. 1995). D efendant must prove “‘that, based on t he undisputed

20 facts in the record, during the time in question there were substantially equivalent jobs

21 available, which [the claimant s ] could have obtained and that [the claimants] failed to use

22 reasonable diligence in seeking one.’” Id. (quoting EEOC v. Farmers Bros. Co., 31 F .3d

23 891, 906 (9t h Cir. 1994) (emphasis in Farmers)); see Cassino v. Reichhold Chem s ., Inc., 817

24 F.2d 1338, 1345 (9th Cir. 1987) (“The defendant bears the burden of s howing that there were

25 suitable positions available and t hat the plaintiff failed to use reasonable care in seeking

26 13D efendant’s reliance on Sivell is misplaced because the plaintiff in that case
27 presented no e vidence that he would have remained with t he defendant or be en hired by
28 its successor. 666 F. Supp. at 25-26.

- 21 -

1 them.”).

2

Plaintiff contends that Defendant has not proven t hat s uitable jobs were available

3 to the claimants as a matter of law. D oc. #119 at 4-6. D efendant cont ends that it has met

4 its burden on this element because Nikrant, Sheehan, and Cameron obtained jobs selling

5 real estate shortly aft er t hey left Defendant’s employment. D oc. #92 a t 2-3. T he Court

6 need not resolve this issue because it finds t hat D efendant has not satisfied the second

7 requirement of i ts failure-to-mitigate defense – s howing that the claimants failed to use

8 reasonable diligence in seeking new jobs.

9

A. Carol Nikrant.

10

Defendant acknowledges that Nikrant found a job at Jackson Properties within a

11 week of he r termination and worked there until July 18, 2001. D oc. #92 a t 5. D efendant

12 further acknowledges that Nikrant worked at Real Estate Temps from July 18, 2001 t o

13 January 29, 2002. Id. at 6. D efendant s t ates that Nikrant then retired to the Pinetop-

14 Lakeside area and cared for he r mot her-in-law on a full-time basis. Id. at 6 (citing Doc. #93

15 ¶¶ 25-26, Ex. E (Nikrant Dep. at 7, 19-26, 76)). D efendant contends in its motion that

16 Nikrant’s claim for da mages should end on J uly 18, 2001 becaus e Nikrant could have

17 obtained permanent employment with Real Estat e T emp s . Id. at 6, 12. D efendant contends

18 in its reply that damages should end no later than J anuary 29, 2002, when Nikrant left Real

19 Estate Temps and moved to Pinetop-Lakeside. Doc. #147 at 3-4.

20

Plaintiff has presented an affidavit from Nikrant in which she testified that after

21 January 29, 2002 s he sought “employment in the real estate field and applied to Torreon

22 Realty, Arizona Realty and M adico Realty” and “ also applied at White M ountain Country

23 Club and Home Depot (three times).” D oc. #120 Ex. C ¶ ¶ 8-9. N ikrant furt her testified that

24 she was able to care for her mother-in-law and still work until her husband became ill in

25 December 2004, but that he fully recovered by April 2005. Id. ¶ 9.

26

D efendant contends that Nikrant’s affidavit directly contradicts her deposit ion

27 testimony that “she had done essentially not hing to become employed in the real estate

28 community subsequent to retiring to Pinetop-Lakeside.” D oc. #147 a t 3 (c iting Doc. #93

- 22 -

1 ¶ 26). D efendant further contends that the affidavit is offered solely to avoid summary

2 judgment and that “Nikrant is bound by her deposition testimony.” Id. (citing Burrell v.

3 Star Nursery, Inc., 170 F .3d 951, 954 (9t h Cir. 1999) (holding that the plaintiff’s affidavit

4 sought to create “sham issues of fact” because her allegations of sexual harassment

5 appeared for t he first time in the affidavit and directly contradicted her prior deposition

6 testimony)).

7

The Court has review ed the portions of t he Nikrant deposition cited by Defendant

8 and cannot conclude that the affidavit is a sham.14 N ikrant explicitly testified at her

9 deposition that she sought employment at Torreon and M adico Realt y and that she

10 inquired with another realtor but could not recall the name. D oc. #93 E x. E, Nikrant Dep.

11 at 20, 23, 25-26. N ikrant did not testify these were her only efforts to obtain employment

12 in the Pinetop-Lakes ide area. N or did she unequivocally testify that she was unable to

13 work due to the care she provided her mother-in-law. See id. at 20-21.

14

The “sham affidavit” rule “does not automatically dispose of e very case in which

15 a contradictory affidavit is introduced to explain portions of e arlier deposition testimony.”

16 Kennedy v. Allied Mut. Ins. Co., 952 F .2d 262, 266-67 (9t h Cir. 1991). R at her, the trial court

17 mus t find that the affidavit “flatly contradicts” earlier testimony and is in fact a sham. Id.

18 at 266. The Court cannot make that finding in this case.

19

Ques t ions of fa ct preclude summary judgment on w hether Nikrant failed to seek

20 employment with reasonable diligence after July 18, 2001 or January 29, 2002.

21

B. Charlyne S heehan.

22

Defendant acknowledges that Sheehan found a new job within a week of he r

23 departure and has been employed as an act ivities director for Ca l-Am Properties since

24 N ovember 2001. D oc. #92 a t 6. D efendant nonetheless argues that Sheehan s hould be

25 denied damages from November 2001 b ecause she “voluntarily left the real estate market”

26 14The Court has not read the entire Nikrant deposition. T he Court is required to
27 review only those portions of t he evidence cited by the parties. See Carmen v. S.F.
28 Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001).

- 23 -

1 and “ allowed her license to sell real estate to expire[.]” D oc. #147 a t 4. T he Court agrees

2 with Plaintiff’s argument that Sheehan w as not required to stay in the same profession in

3 order to mitigate her damages. Doc. #119 (citing Odima, 53 F.3d at 1497).

4

C. Gordon Cameron.

5

Defendant acknowledges that Cameron began working for Ry land Homes on

6 January 1, 2001 a nd for Centex Homes in Oct ober 2003. Doc. #92 at 7. D efendant asserts,

7 without analysis, that “Cameron should be barred from back-pay aft er January 1, 2000, t he

8 date he was employed by Ryland, but not later than October 2003, w hen he was employed 9 by Centex.” Id. at 12.15

10

Defendant ap p ears to be taking the position that Cameron’s damages ceased after

11 he found e mployment with Ryland and Centex. A s Plaintiff points out, however, t his is a

12 ques t ion of t he amount of damages, not of mitigation. D oc. #119 at 12. Inde ed, Cameron’s

13 employment with Ryland and Centex is evidence that he used reasonable diligence in

14 seeking employment after his termination. T he amount of da mages to be recovered by

15 Cameron, if any, will be decided by the jury.

16

D. Jacque Judge.

17

Defendant contends that Judge is entitled t o no backpay because although she

18 worked in “resale real estate from June 2001 unt il December 2003, s he made only $6,000.00

19 during that period and did virtually nothing t o obt ain emp loy ment with a

20 homebuilder/develop er.” D oc. #92 a t 5. A s explained above, a claimant is not required to

21 stay in the exact same line of work in order t o mitigate her damages. See Odima, 53 F .3d

22 at 1497. M oreover, Judge has testified that she sought re-employment with D efendant and

23 sought employment with four ot her new home builders after her termination. D oc. #120 ¶ ¶

24 14-19. J udge has further testified that her termination was so shocking and traumatic that

25 it devastated her self-esteem and made it difficult for he r to seek other employment. Id. ¶

26 15 D efendant notes that Cameron w as fired from Centex for misconduct. Id. Plaintiff,
27 however, is not seeking damages for Ca meron after M arch 1, 2004, t he date he lost his job
28 with Centex. Doc. #119 at 12 (citing Doc. #120 ¶ 49).

- 24 -

1 7.

2

Construing the evidence in Plaintiff’s favor, t he Court finds that questions of fa ct

3 exist as to whether Nikrant failed to seek employment with reasonable diligence after her

4 termination. See EEOC v. Pape Lift, Inc., 115 F .3d 676, 684 (9t h Cir. 1997) (holding that the

5 claimant’s efforts to seek emp loyment by reviewing the want ads was not unreasonable as

6 a matter of law where there was evidence that his lack of aggressiveness in pursuing new

7 employment was common among older workers: “ [W]e think it . . . ap p ropriate to tailor the

8 reasonableness inquiry to the particular characteristics of t he injured plaintiff. . . .

9 Accordingly, the evidence about [the claimant’s] mental condition following his discharge

10 was s ufficient to support the jury’s conclusion that his mitigation efforts were

11 reasonable.”).

12

The Court will deny Defendant’s motion for partial summary judgment on damages

13 for certain claimants.

14 VI. 15

Defendant’s Motion to S trike Any Claims Asserted on Be h alf of Gregory Leach and Charlyne S heehan and Alternative Motion for Leave to Amend Answer.

16

A. The Motion to S trike Claims.

17

In its motion to strike claims, Defendant seeks to have Plaintiff’s claims regarding

18 Leach and Sheehan stricken on the ground that Plaintiff has not amended the complaint

19 to include the claims. D oc. #133 at 2-3. D efendant filed the mot ion on April 19, 2005. Id.

20 The deadline for filing dispositive motions, however, was April 1, 2005. D ocs. ##24 ¶ 7(a),

21 43 ¶ 1(F). D efendant does not mention the fact that the motion is untimely . Nor has

22 Defendant shown “good cause” under Rule 16(b) of t he Federal Rules of Ci vil P rocedure.16

23

The parties’ joint case management rep ort provides that, consistent with its

24 16Rule 16(b) p rovides that the district judge shall enter a scheduling order governing
25 the case and that the “s chedule shall not be modified except upon a showing of g ood 26 cause[.]” F ed. R. Civ. P. 16(b); see Wong v. Regents of the Univ. of Cal., 410 F .3d 1052, 1062
27 (9th Cir. 2005) (“ Courts set [pretrial] schedules to permit t he court and the parties to deal with cases in a thorough and orderly manner, and they must be allowed to enforce them,
28 unless there are good reasons not to.”).

- 25 -

1 complaint, Plaint iff “ may identify additional class members on whose behalf it will seek

2 relief.” D oc. #22 ¶ 6; see Doc. #1 a t 1 (“ T his is an action under the [ADEA] to correct

3 unlawful employment practices on t he basis of a ge and to provide relief to Jacque Judge,

4 Carol Nikrant, Gordon Cameron, and a class of protected age group persons whom

5 Defendant laid off because of their age.”) (emphasis added). In i ts case management

6 order, the Court set an April 6, 2004 de adline “for adding class members to this case[.]”

7 Doc. #24 ¶ 2. P laintiff timely filed a notice adding Leach and Sheehan as “additional class

8 members on whose behalf [Plaintiff] will seek relief in this case[.]” Doc. #33.

9

Defendant did not object to the notice. N or did Defendant argue in any one of i ts

10 five summary judgment motions that Plaintiff’s claims regarding Leach and Sheehan should

11 be barred because Plaintiff had not amended the complaint to include the claims. T he

12 Court finds that Defendant has not shown good cause for f iling its motion to strike after

13 the dispositive motion deadline. See Fed. R. Civ. P. 16 A dvisory Comm.’s Notes (1983 A m.)

14 (stating that good cause exists when a deadline “cannot reasonably be met des p it e the

15 diligence of the party seeking the extension”); Johnson, 975 F .2d at 609 (hol ding that the

16 plaintiff “failed to demons t rate good cause for hi s belated motion to amend” and stating

17 that “Rule 16(b)’s ‘good cause’ standard primarily cons iders the diligence of the party 18 seeking the amendment”). The Court will deny Defendant’s motion to strike.17

19

B. The Alternative Motion for Leave to Amend Answer.

20

In it s alt ernative motion, Defendant seeks leave of Court to amend its answer to

21 include the defense of l aches and other unspecified defenses purportedly applicable to

22 Leach and Sheehan. D oc. #33 at 3-5. P laintiff argues that, except with regard to the laches

23

24

17Defendant states in its reply that its motion to strike is not unt imely because it

25

“raises an issue of subject matter jurisdiction which cannot be waived by any party and can be considered by the Court at any time.” D oc. #153 a t 7. D efendant argues that the

26 Court lacks subject matter jurisdiction because Plaintiff failed to conciliat e t he claims

27 regarding Leach and Sheehan. Id. A s explained above, however, Plaintiff had no l egal obligation to conciliate each class member’s claim. See EEOC v. Bruno’s Rest., 13 F .3d 285,
28 289 (9th Cir. 1993).

- 26 -

1 defense against Leach, Defendant has offered no e xplanation as to why it seeks leave to

2 amend its answer more than a y ear after Leach and Sheehan were added as class members

3 and months after it filed summary judgment motions regarding t heir claims . D oc. #142 a t

4 3. P laintiff further argues that the proposed amended answer is inappropriate becaus e it

5 includes allegations learned during discovery regarding the charging parties and a new

6 allegation that the original complaint was untimely. Id. at 4 (c iting Doc. #133 E x. A).

7 P laintiff concludes that Defendant has no ne ed to supplement its answer with lengt hy

8 allegations already raised in its motions for summary judgment. Id. at 3.

9

As explained above, Defendant has not waived its laches defense w it h res p ect to

10 Leach by n ot having raised the defense in its answer. N or has Plaintiff argued, or the

11 Court concluded, that Defendant has waived any other defenses with respect to Leach or

12 Sheehan. T he Court thus finds that Defendant’s proposed amended answer is

13 unnecessary. The Court will deny Defendant’s motion for leave to amend answer.

14

IT IS ORDERED:

15

1. Defendant’s request for oral argument (Doc. #54) is denied.

16

2. Defendant’s motions for p artial summary judgment (Docs. ##48, 68, 70, 90, 92)

17 are denied.

18

3. Defendant’s motion for leave to exceed page limits (Doc. #101) is granted.

19

4. Plaintiff’s motions to strike facts and evidence submit t ed by Defendant

20 (Docs. ##104, 115) are denied as moot.

21

5. Defendant’s motions to supplement (Docs. ##131, 148) are granted.

22

6. Defendant’s motion to strike claims and alternative motion for l eave to amend

23 answer (Doc. #133) are denied.

24

7. Defendant’s motion to strike evidence (Doc. #145) is denied as moot.

25

8. Defendant’s motion to correct the record (Doc. #152) is granted.

26

The Court will set a p retrial conference by separate order.

27

28

- 27 -

1

DATED this 30th day of September, 2005.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 28 -

 </s> 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

9 Equal Employment Opportunity Commission,
10 Plaintiff,
11 vs.
12 Lennar Homes of Arizona, Inc.,
13 Defendant.
14

)

) CIV 03-1827 PHX DGC

)

)

)

CONSENT DECREE

)

)

)

)

)

)

15

16 The United States Equal Employment Opportunity Commission (the "Commission"
17 or "EEOC") filed this action against Lennar Hom es of Arizona, Inc. ("Lennar" or
18 "Defendant") to enforce the Age Discrimination in Employment Act of 1967 ("ADEA") and
19 the Civil Rights Act of 1991, 42 U.S.C. §1981a. In its Complaint, the Commission alleged
20 that Lennar terminated employees who are at least 40 years of age and older because of their
21 age, including Jacque Judge, Carol Nikrant and Gordon Cameron II, from their positions as
22 Sales Consultants because of their ages, 55, 60 and 56, respectively ("Charging Parties").
23 24 Subsequently, the EEOC identified Gregory Leach and Charlyne Sheehan as persons for 25 whom the EEOC sought relief (Charging Parties Leach and Sheehan shall hereafter be 26 designated collectively as "Complainants"). Lennar denied the foregoing allegations in their
27 entirety and alleged numerous defenses, including that the Charging Parties were terminated
28 due to the closing of the communities in which they worked, the fact that that Charging

1 Parties' customer service scores were lower than others at Lennar, Sheehan quit, Leach was

2 not qualified for his position, and other legitima te business reasons. It is expressly

3 understood that Defendant's agreement to enter into this Consent Decree is not and shall not

4 be construed as an admission of any violation of law or other wrongdoing.

5

The parties do not object to the jurisdiction of the Court over this Action and waive

6 their rights to a hearing and the entry of findings of fact and conclusions of law.

7

In the interest of resolving this m atter, and as a result of having e ngaged in

8 comprehensive settlement negotiations, the partie s have agreed that this action should be

9 resolved finally by entry of this Decree.

10

It is hereby ORDERED, ADJUDGED AND DECREED:

11

1. This Decree resolves all claims of the Commission, Complainants and all other

12 employees whose interests are represented by the Commission in this matter against Lennar,

13 including but not lim ited to allegations of back pay, front pay, reinstatem ent, interest,

14 injunctive relief, attorney's fees and costs arising out of the issues in this lawsuit.

15

2. For the duration of this Decree, Defendant at its Phoenix, Arizona area

16 facilities will not retaliate in violation of ADEA against any employee because the employee
17 assisted or participated in the investigation of the claims or in this litigation brought by the
18 Commission, including Jacque Judge, Carol Nikrant, Gordon Cameron II, Gregory Leach and 19 Charlyne Sheehan. 20
3. Within fourteen (14) business days of the entry of this Decree, Lennar shall 21
make a paym ent in the am ount of four hundred a nd twenty five thousand dollars 22
($425,000.00), half of which will be designated as backpay and half of which will be 23
designated as liquidated dam ages in resolution of all claim s asserted in this case. The 24
payments for liquidated damages will be reported on a Form 1099 by January 31, 2007. The 25
FICA and federal and state withholding taxes shall be deducted fromthe amount designated 26
as back wages. Lennar shall pay the employers share of FUTA and FICA on the backpay 27 28 amount.

- 2 -

1

4. The amount set forth in paragraph 4 of this Decree shall be paid byLennar in

2 the form of a payroll check, payable to Complainants in the amounts set forth in Attachment

3 A. Such check or money order shall be m ailed directly by Lennar to the addresses to be

4 provided by the Commission. Within three business days of the issuance of the check or

5 money order, Lennar shall subm it a copy of the check or m oney order, and related

6 correspondence, to the United States EqualEmployment Opportunity Commission, Regional

7 Attorney, 3300 North Central Avenue, Suite 690, Phoenix, Arizona, 85012.

8

5. Lennar shall post, for the duration of this Decree, in a prom inent place

9 frequented by its employees, including, both at the time that this Decree becomes effective

10 and for the duration of this Decree, the Notice attached hereto as Attachment B. The Notice

11 shall be the same type, style and size as set forth in Attachment B.

12

6. Lennar shall provide a one hour seminar/training regarding the ADEA to all

13 Phoenix, Arizona area resident employees in Lennar within six months of the entry of this

14 Decree.

15

7. The seminar shall include the subject of what constitutes age discrimination,

16 that age discrimination in the recruitment, hiring, firing, layoff, compensation, assignment

17 or other terms, conditions or privileges of employment violates the ADEA, how to prevent

18 age discrimination; how to provide a work environm ent free from age discrimination; to

19 whom and by what means employees may complain if they believe they have been subjected

20 to age discrimination in the workplace; Lennar's statutory obligations under the ADEA in

21 general, and in particular its obligation not todiscriminate on the basis of age in employment

22

decisions concerning the continuing em ployment of current staff; and objective,

23

non-discriminatory decision-making and proper procedures for evaluations, reductions in

24

force and layoffs.

25

8. Within 30 days of the entry of this decree, Lennar sha

ll mail to the

26

Complainants a letter of reference which lists their dates of em ployment, position(s) held, 27

28 and salary.

- 3 -

1

9. Lennar shall report in writing to the Regional Attorney of the Com mission's

2 Phoenix District Office at 3300 N. Central Ave., Suite 690, Phoenix, Arizona 85012,

3 beginning six (6) months from the date of the entry of this Decree, and thereafter every six

4 (6) months for the duration of the Decree the following information:

5

A. Confirmation that Lennar's equal employment opportunity training listed in

6 Paragraph 6 of this Decree occurred.

7

B. Lennar shall maintain all records concerning its implementation of this Consent

8 Decree during the term of the Decree.

9

C. Confirmation that the Notice required in Paragraph 5 of this Decree was posted

10 and the locations where it was posted.

11

10. The parties shall each bear their own costs, and the Commission and Lennar

12 shall each bear their own attorneys' fees incurred as a result of this action through the filing

13 of this Decree.

14

11. The duration of this Decree shall be twelve (12) months from its entry. This

15 Court shall retain jurisdiction over this action for the duration of the Decree, during which

16 the Commission may petition this Court for compliance with this Decree.

17

12. This Decree shall expire by its own terms a t the end of twelve (12) m onths

18 from the date of entry, without further action by the parties.

19

13. If any provision(s) of this Consent Decree are found to be unlawful, only the

20 specific provision(s) in question shall be affecetd and the other provisions shall remain in full

21 force and effect.

22 14. The parties agree to entry of this Decree, subject to final approval by the Court.
23 15. If a question of compliance with the non-monetary terms of the Decree arises,
24 the Commission shall give written notice to Defendant of its a lleged non-compliance and
25 Defendant shall have a m inimum of sixty (60) days to cure any non-com pliance. If the
26

Commission believes that the alleged non-compliance has not been cured, the parties shall 27

28 meet and confer to exhaust these attempts to resolve the issue of non-compliance.

- 4 -

1

16. No affirmative obligation of Lennar inthis Decree shall apply to related entities

2 and affiliates of Lennar (including, but not lim ited to, Lennar Corporation, Lennar

3 Communities Development, Inc., Lennar Construction, Inc., Lennarstone Marketing Group,

4 L.L.C., Greystone Communities Development, Inc., Greystone Construction, Inc., Greystone

5 homes, Inc., U.S. Home Corporation, U.S. Home of Arizona Construction Co., or other entity

6 created after May 30, 2000).

7

DATED this 17th day of July, 2006.

8

9

10

11

12 APPROVED AND CONSENTED TO THIS 12th DAY OF JULY, 2006:

13

14 LENNAR HOMES OF ARIZONA, INC.

15

s/ L. Christian Marlin L. Christian Marlin

16 Vice President

JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel

17 s/ Ted D. Meyer 18 Ted D. Meyer
JONES DAY 19 717 Texas Avenue
Suite 3300 20 Houston, Texas 77002

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 s/ Mary Jo O'Neill

21 Attorneys for Defendant
22 23 24 25 26 27 28

MARY JO O’ NEILL Regional Attorney
s/ Sally Shanley SALLY SHANLEY Supervisory Trial Attorney
s/ P. David Lopez P. DAVID LOPEZ Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012 Attorneys for Plaintiff

- 5 -

Attachment A

Gordon Cameron Jacque Judge Carol Nikrant Charlyne Sheehan Greg Leach Total

Back Pay

Liquidated Total Damages

$ 67, 500

$ 67, 500 $ 135,000

$ 60,000

$ 60,000 $ 120,000

$ 60,000

$ 60,000 $ 120,000

$12, 500

$12, 500 $ 25,000

$12, 500

$12, 500 $ 25,000

$ 212, 500 $ 212, 500 $ 425,000

ATTACHMENT B

NOTICE TO ALL EMPLOYEES OF Lennar Homes of Arizona

It is unlawful under federal law Title VII of the Civil Rights Act and state law to discriminate against an employee on the basis of age. It is also unlawful to retaliate against any person because the person protested discriminatory practices or contacted the EEOC.
Lennar Homes will not discriminate against any employee on the basis of age and will not retaliate against any employee.
If you believe you have been discriminated against by Lennar Homes, you have the right to seek assistance from:
(1) EEOC, 3300 North Central Avenue, Suite 690, Phoenix, Arizona 85012, (602) 640-5000; or
(2) Arizona Civil Rights Division (ACRD) of the Attorney General's Office, 1275 W. Washington, Phoenix, Arizona, 85007, (602) 255-5263.
or have the right to file a charge with the EEOC or ACRD if you believe you are being discriminated against.
No Retaliation Clause. No action may be taken against you by any supervisory or management official of Lennar Homes for (1) opposing discriminatory practices made unlawful by federal law, (2) filing a charge or assisting or participating in the filing of a charge of discrimination, or (3) assisting or participating in an investigation or proceeding brought under Title VII. Should any such retaliatory actions be taken against you, you should immediately contact the EEOC or the ACRD and the address or telephone numbers listed above.

Dated:

___________________________________ Senior Vice President of Human Resources Lennar Homes

 </s> II
1 MARY JO O'NEILL # 005924
C. EMANUEL SMITH
2 P. DAVID LOPEZ
EQUAL EMPLOYMENT OPPORTUNITY
3 COMMISSION
Phoenix District Office
4 3300 North Central Avenue, Suite 690
Phoenix, Arizona 85012
5 Telephone: (602) 640-5016
6 Attorneys for Plaintiff
7

(}JnL"D-~=:-_·WDGED )

1I ·_

RECEiVED

-~'-r "'r >

p

V I

I

f

SEP 1 8 Z003

I

CLCR'~ I i
'.::'..u .1
;:

~

..~.

.-_':!:_.,JI_ ,-. J I<'110.":~,.;1~.~ ...)oSrT- RA..!~CFT·7-fCr..)~O·l";:"U'rRI.'T..'

.

.

-:-----~ .._.--.- r·... C:-,~)C ~

fI' I

8 IN THE UNITED STATES DISTRICT COURT

9

10

FOR THE DISTRICT OF ARIZONA

11 Equal Employment Opportunity

)

Commission,

)

12

)

13

Plaintiff,

)

)

14

vs.

)

)

15 Lennar Homes of Arizona, Inc.,

)

16

)

Defendant.

)

17 - - - - - - - - - - - )

COMPLAINT (Jury Trial Demanded)

18

19

NATURE OF THE ACTION

20

This is an action under the Age Discrimination in Employment Act to

21 correct unlawful employment practices on the basis of age and to provide

22 appropriate relief to Jacque Judge, Carol Nikrant, Gordon Cameron, and a class

23 of protected age group persons whom Defendant laid off because of their age.

24 The Equal Employment Opportunity Commission ("EEOC" or IlCommission")

25 alleges that Defendant, Lennar Homes of Arizona, Inc. CLennar Homes"),

26 terminated employees who are at least 40 years of age and older because of

27 their age, including Ms. Judge, Ms. Nikrant, and Mr. Cameron, from their

28 positions as Sales Consultants because of their ages, 55, 60, and 56,

1 respectively

2

JURISDICTION AND VENUE

3

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451,

4 1331,1337,1343 and 1345. This action is authorized and instituted pursuant to

5 Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended,

6 29 U.S.C. § 626(b) (the "ADEAU), which incorporates by reference Section 16(c)

7 and 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29

8 U.S.C. §§216(c) and 217.

9

2. The employment practices alleged to be unlawful were and are now

10 being committed within the jurisdiction of the United States District Court for the 11 District of Arizona.

12

PARTIES

13

3. Plaintiff, the Equal Employment Opportunity Commission (the

14 "Commission"), is the agency of the United States of America charged with the

15 administration, interpretation and enforcement of the ADEA and is expressly

16 authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b),

17 as amended by Section 2 of Reorganization Plan No.1 of 1978, 92 Stat. 3781,

18 and by Public Law 98-532 (1984), 98 Stat. 2705.

19

4. At all relevant times, Defendant, Lennar Homes of Arizona, Inc. (the

20 "Employer" or "Lennar Homes"), has continuously been a domestic corporation

21 doing business in the State of Arizona and the City of Phoenix, and has

22 continuously had at least 20 employees.

23

5. At all relevant times, Defendant Lennar Homes has continuously

24 been employers engaged in an industry affecting commerce within the meaning

25 of Sections 11 (b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).

26

CONCILIATION

27

6. Prior to institution of this lawsuit, the Commission's representatives

28 attempted to eliminate the unlawful employment practices alleged below and to

2

1 effect voluntary compliance with the ADEA through informal methods of

2 conciliation, conference and persuasion within the meaning of Section 7(b) of the

3 ADEA, 29 U.S.C. § 626(b).

4

STATEMENT OF CLAIMS

5

7. Since at least May 1,2000, Lennar Homes engaged in unlawful

6 employment practices in violation of Section 623(a)(1) of the ADEA, 29 U.S.C. §

7 623 (a)(1). The practices include terminating protected age group employees,

8 including Jacque Judge, Carol Nikrant, and Gordon Cameron, from their positions

9 as Sales Consultants because of their ages, 55,60, and 56 respectively.

10

8. At the time of termination, Ms. Nikrant had been employed for

11 approximately five years, Ms. Judge for approximately eight years, and Mr.

12 Cameron for approximately three years.

13

9. During their employment tenure, Ms. Judge, Ms. Nikrant, and Mr.

14 Cameron were productive employees. For instance, in 1999, Ms. Judge and Ms.

15 Nikrant received "MAME" Awards for $8,000,000 in sales. Likewise, Ms. Nikrant's

16 final evaluation, prior to her termination, referred to her as an "outstanding

17 salesperson." Finally, according to Lennar's Monthly Sales Recap for September

18 1998, the last month in which the reports were disseminated to Sales

19 Consultants, Mr. Cameron sold 73 homes for a dollar value of $11,407,120 for

20 the first ten months of the fiscal year of 1998. This ranked Mr. Cameron first

21 among the 14 Sales Consultants listed on the report, exceeding by 34 homes the

22 second ranked Sales Consultant.

23

10. During their employment, Ms. Judge, Ms. Nikrant, and Mr. Cameron

24 were never disciplined for insufficient sales. or any other performance problems.

25

11. In early 2000, Ms. Judge, Ms. Nikrant and Mr. Cameron were told

26 that Lennar Homes was contracting due to economic reasons. Following the

27 termination, however, Lennar Homes advertised for Sales Consultants in a new

28 community. Instead of recalling the laid off workers to work in the new

3

1 community, Lennar Homes opted for younger, less experienced employees.

2

12. Lennar never offered to rehire· Ms. JUdge, Ms. Nikrant or Mr.

3 Cameron.

4

13. The effect of the practices complained of in paragraphs 7-12 above

5 has been to deprive employees 40 years of age or older, including Jacque Judge,

6 Carol Nikrant, and Gordon Cameron, of equal employment opportunities and

7 otherwise adversely affect their status as employees because of their age.

8

14. The unlawful employment practices complained of in paragraph 7

9 above is and are willful within the meaning of Section 7(b) of the ADEA, 29 10 U.S.C. § 626(b).

11

PRAYER FOR RELIEF

12

Wherefore, the Commission respectfully requests that this Court:

13

A. Grant a permanent injunction enjoining Defendant Lennar Homes, its

14 officers, successors, assigns and all persons in active concert or participation

15 with it, from engaging in discipline, retaliation, and any other employment practice

16 which discriminates on the basis of age against individuals 40 years of age and 17 older.

18

B. Order Defendant Lennar Homes to institute and carry out policies,

19 practices and programs which provide equal employment opportunities for

20 individuals 40 years of age and older, and which eradicate the effects of its past

21 and present unlawful employment practices.

22

C. Grant a judgment requiring Defendant Lennar Homes to pay

23 appropriate back wages in an amount to be determined at trial, an equal sum as

24 liquidated damages, and prejudgment interest to individuals whose wages are

25 being unlawfully withheld as a result of the acts complained of above to Jacque

26 JUdge, Carol Nikrant, Gordon Cameron and other individuals 40 years and older

27 who were adversely affected by the unlawful practices described above.

28

D. Order the Defendant Lennar Homes to make whole a class of

4

1 protected age group employees who were adversely affected by the unlawful

2 practices described above, by providing the affirmative relief necessary to

3 eradicate the ·effects of its unlawful practices, including but not limited to rightful -

4 place hiring of the class of protected age group employees and/or front pay.

5

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

6 the public interest.

7

F. Award the Commission its costs of this action.

8

JURY TRIAL DEMAND

9

The Commission requests a jury trial on all questions of fact raised by its

thist~ 10 complaint. 11
DATED

.~
day of September. 2003.

12

13

Respectfully submitted,

14

ERIC S. DREIBAND

15

General Counsel

16

JAMES L. LEE

17

Deputy General Counsel

18

GWENDOLYN YOUNG REAMS'

19

Associate General Counsel

20

EQUAL EMPLOYMENT

21

OPPORTUNITY COMMISSION

1801 L Street, N.W.

22 23 24

/\11u.& Washington, D.C. 20507
:wJr1I/f,t/JfcLVfj-+-~;;""=~-

25

Regional Attorney

26 27

(~. ~~~~""'''--
C. EMANUEL SMITH

28

Supervisory Trial Attorney

5

1

2

P. DAVID LOPEZ

3

Trial Attorney

4

EQUAL EMPLOYMENT

5

OPPORTUNITY COMMISSION

6

Phoenix District Office

3300 N. Central Ave., Suite 690

7

Phoenix, Arizona 85012

8

(602) 640-5020

Attorneys for Plaintiff

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

 </s> Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 1 of 20
CLOSED,PROTO,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:03−cv−01827−DGC

EEOC v. Lennar Homes of AZ Assigned to: Judge David G Campbell Demand: $0 Cause: 29:626 Job Discrimination (Age)
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 09/18/2003 Date Terminated: 07/18/2006 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by C Emanuel Smith EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5033 Fax: 602−640−5009 Email: emanuel.smith@eeoc.gov TERMINATED: 03/03/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen E Nutter EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−4773 Email: karen.nutter@eeoc.gov LEAD ATTORNEY 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 LEAD ATTORNEY 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 Email: patrick.lopez@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rita Byrnes Kittle Equal Opportunity Employment Commission − Denver, CO 303 E 17th Ave., Ste. 410 Denver, CO 80203 303−866−1347 Fax: 303−866−1375

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 2 of 20
Email: rita.kittle@eeoc.gov LEAD ATTORNEY 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle G Marshall EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5020 Fax: 602−640−5009 Email: michelle.marshall@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
Lennar Homes of Arizona Incorporated

represented by Arthur W Pederson Sherman & Howard LLC − Phoenix, AZ 201 E Washington St., Ste. 800 Phoenix, AZ 85004−2327 602−240−3000 Fax: 602−240−6600 Email: apederson@shermanhoward.com TERMINATED: 11/21/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deanie June Reh Sherman & Howard LLC 2800 N Central Ave Ste 1100 Phoenix, AZ 85004−1043 602−240−3000 Fax: 602−240−6600 Email: dreh@godaddy.com TERMINATED: 11/21/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter D Baird Lewis & Roca LLP 40 N Central Ave Phoenix, AZ 85004 602−262−5364 Fax: 602−734−3861 Email: pbaird@lrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Seth Cohen Jackson Lewis LLP − Phoenix, AZ 2111 E Highland Ave., Ste. B250

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 3 of 20
Phoenix, AZ 85016 602−714−7044 Fax: 602−714−7045 Email: richard.cohen@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Gerald Schaffer Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−0271 Fax: 602−734−3777 Email: Rschaffer@lrrc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ted D Meyer Jones Day 717 Texas Ste 3300 Houston, TX 77002 832−239−3939 Fax: 832−239−3600 Email: tdmeyer@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/18/2003 09/25/2003 10/07/2003
10/08/2003 10/15/2003

# Docket Text
1 COMPLAINT FILED (MRB) (Entered: 09/19/2003)
2 RETURN OF SERVICE EXECUTED summons/complaint upon Molly Chapman for dft Lennar Homes of AZ on 9/19/03 (SAT) (Entered: 09/26/2003)
3 ORDER by Judge David G. Campbell that a complaint having been filed in this civil action, it is hereby ordered: 1. As required by Rule 4(m) of the Federal Rules of Civil Procedure, Plaintiff(s) shall effect service of the Complaint and Summons on all Defendants within 120 days after the filing of the Complaint. This Initial Order shall serve as notice to the Plaintiff(s) under Rule 4(m) that the Court may dismiss this action without further notice with respect to any Defendant(s) named in the Complaint that are not served within this time period; 2. Plaintiff(s) shall notify the Court in writing when service has been accomplished on the Defendant(s) in accordance with Rule 4 and shall request that the Court set a Case Management Conference in accordance with Rule 16(b) of the Federal Rules of Civil Procedure. Plaintiff(s) shall provide such notification to the Court within ten days after service of the Complaint on all Defendant(s); 3. Upon receipt of such notice, the Court will issue an Order Setting Rule 16 Case Management Conference that directs the parties to comply with Rule 26(f) of the Federal Rules of Civil Procedure and describes the Case Management Report that must be filed by the parties before the Case Management Conference (the Court requires a report that is broader than the proposed in Form 35 of the Appendix of Forms to the Federal Rules of Civil Procedure). A copy of the Court's Order Setting Rule 16 Case Management Conference can be found on the Court's website at www.azd.uscourts.gov under Judicial Officer Information and Judge Campbell; 4. As stated in Rule 26(d), the parties shall not seek discovery from any source until they have conferred as required by Rule 26(f); 5. Plaintiff(s) shall ensure that all Defendant(s) promptly receive a copy of this Order (cc: all counsel) re: order filed [3−1] (SAT) (ADI−ICMS, ). (Entered: 10/07/2003)
4 STIPULATION to Extend Time until 10/16/03 Within Which to File Answer to Complaint [1−1] by pla, dft [4−1] (SAT) (Entered: 10/09/2003)
5 ORDER by Judge David G. Campbell granting stipulation to Extend Time until 10/16/03 Within Which to File Answer to Complaint [1−1] by pla, dft [4−1] (cc: all

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 4 of 20

10/16/2003 10/16/2003 10/23/2003
10/23/2003 10/23/2003 10/28/2003 11/05/2003
11/14/2003 11/14/2003 11/14/2003 11/14/2003 11/14/2003 11/14/2003 11/14/2003 11/14/2003 11/14/2003

counsel) (LAD) (ADI−ICMS, ). (Entered: 10/15/2003)
6 ANSWER to complaint [1−1] by dft Lennar Homes of AZ (MAP) (Entered: 10/20/2003)
7 DEMAND for jury trial by dft Lennar Homes of AZ (LAD) (Entered: 10/20/2003)
8 ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE by Judge David G. Campbell that pursuant to Rule 16 of the Federal Rules of Civil Procedure, a Case Management Conference is set for 11/14/03 at 1:30 PM ; prel scheduling conf set for 1:30 11/14/03 ; Clerk of the Court shall send copies of this Order to all counsel of record and to any parties appearing in propria persona (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 10/23/2003)
9 NOTICE of Service that the dft, Lennar Homes of Arizona Inc , through their Statutory Agent, was served with the Summons and Complaint on 9/19/03 by pla (SAT) (Entered: 10/24/2003)
9 MOTION (Request) that the Court set a Case Management Conference by pla [9−1] (SAT) (Entered: 10/24/2003)
10 Joint MOTION/Stipulation to Continue Case Management Conference (set for 11/14/03) by pla, dft [10−1] (SAT) (Entered: 10/30/2003)
11 ORDER by Judge David G. Campbell that the Joint Motion and Stipulation to Continue Case Management Conference [10−1] is granted; FURTHER ORDERED that the Rule 16 Case Management Conference set for 11/14/03 at 1:30 pm is reset to 12/5/03 at 11:30 am ; prel scheduling conf re−set for 11:30 12/5/03 ; FURTHER ORDERED that Plaintiff's Motion for the Court to Set a Case Management Conference [9−1], dated 10/23/03, is denied as moot. (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 11/05/2003)
12 NOTICE by dft OF TAKING DEPO OF Custodian of Records for Tytan Homes on the following date(s): 12/3/03 for productions of documents (SAT) (Entered: 11/18/2003)
13 NOTICE by dft OF TAKING DEPO OF Custodian of Records for Ryland Homes of Arizona Inc on the following date(s): 12/3/03 for production of documents (SAT) (Entered: 11/18/2003)
14 NOTICE by dft OF TAKING DEPO OF Custodian of Records for New Home Experts LLC on the following date(s): 12/3/03 for production of documents (SAT) (Entered: 11/18/2003)
15 NOTICE by dft OF TAKING DEPO OF Custodian of Records for Centex Homes on the following date(s): 12/3/03 for production of documents (SAT) (Entered: 11/18/2003)
16 NOTICE by dft OF TAKING DEPO OF Custodian of Records for JAD Realty Inc/Nu−Way Realty on the following date(s): 12/3/03 for production of documents (SAT) (Entered: 11/18/2003)
17 NOTICE by dft OF TAKING DEPO OF Custodian of Records of SHRS Holdings Inc on the following date(s): 12/3/03 for production of documents (SAT) (Entered: 11/18/2003)
18 NOTICE by dft OF TAKING DEPO OF Custodian of Records for Kenyon Realty Company on the following date(s): 12/3/03 for production ot documents (SAT) (Entered: 11/18/2003)
19 NOTICE by dft OF TAKING DEPO OF Custodian of Records for Springfield Realty Corporation on the following date(s): 12/3/03 for production of documents (SAT) (Entered: 11/18/2003)
20 NOTICE by dft OF TAKING DEPO OF Custodian of Records for Jackson Properties Inc on the following date(s): 12/3/03 for production of documents (SAT) (Entered: 11/18/2003)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 5 of 20

11/19/2003
11/26/2003 12/05/2003
12/11/2003
12/22/2003 12/23/2003 01/28/2004 03/01/2004 03/18/2004 03/18/2004 03/18/2004 03/18/2004 04/06/2004 05/21/2004 05/21/2004 05/21/2004 05/27/2004 06/04/2004 06/16/2004 06/28/2004 07/29/2004
07/30/2004 08/05/2004

21 STIPULATION to permit the scheduling and taking of 3rd party depositions prior to the case management conference by pla EEOC, dft Lennar Homes of AZ (LAD) (Entered: 11/21/2003)
22 CASE MGT REPORT by pla, dft (SAT) (Entered: 12/03/2003)
23 MINUTE ENTRY before Judge David G. Campbell. Crt Rptr: Patricia Lyons. Appearances: Sally Shanley for pla; Arthur Pederson for dft. Preliminary scheduling conference held. Dispositive motions due 2/25/05. Order to follow. [cc: DGC] [23−2] (LMR) (Entered: 12/05/2003)
24 SCHEDULING ORDER (Case Management Order) by Judge David G. Campbell ; discovery due 10/29/04 ; dispositive motions due 2/25/05 (cc: all counsel) re: order (scheduling) [24−1] (SAT) (ADI−ICMS, ). (Entered: 12/11/2003)
25 NOTICE of service of initial disclosure statement pursuant to FRCivP 26(a) by pla EEOC (LSP) (Entered: 12/30/2003)
26 NOTICE of service of initial disclosure statement pursuant to FRCivP 26(a) by dft Lennar Homes of AZ (LSP) (Entered: 12/31/2003)
27 NOTICE of service of discovery by pla. (SAT) (Entered: 01/29/2004)
28 NOTICE of service of discovery by pla. (SAT) (Entered: 03/02/2004)
29 NOTICE by dft Lennar Homes of AZ OF TAKING DEPO OF Catherine ("Chris") Stoutenburgh on the following date(s): 3/30/04 at 9 am (LAD) (Entered: 03/19/2004)
30 NOTICE by dft Lennar Homes of AZ OF TAKING DEPO OF Joanne Rexrode on the following date(s): 3/30/04 at 1:30 pm (LAD) (Entered: 03/19/2004)
31 NOTICE by dft Lennar Homes of AZ OF TAKING DEPO OF Joel ("Corky") Hendrick on the following date(s): 3/31/04 at 9 am (LAD) (Entered: 03/19/2004)
32 NOTICE by dft Lennar Homes of AZ OF TAKING DEPO OF LeeAnn Hungate on the following date(s): 3/31/04 at 1:30 pm (LAD) (Entered: 03/19/2004)
33 NOTICE to the Court of Additional Class Members (Greg Leach, Charlene Sheehan) by pla (SAT) (Entered: 04/07/2004)
34 NOTICE by pla OF TAKING DEPO OF David Kitnick on the following date(s): 6/3/04 (SAT) (Entered: 05/24/2004)
35 NOTICE by pla OF TAKING DEPO OF Linda Fitzpatrick on the following date(s): 6/3/04 (SAT) (Entered: 05/24/2004)
36 NOTICE by pla OF TAKING Video DEPO OF James Stokey on the following date(s): 6/1/04 (SAT) (Entered: 05/24/2004)
37 NOTICE of Service of First Supplemental Rule 26(a)(1) Disclosure Statement by dft (SAT) (Entered: 05/28/2004)
38 Consolidated NOTICE of Service of Discovery and Discovery Responses by dft. (SAT) (Entered: 06/07/2004)
39 NOTICE by pla OF TAKING DEPO OF David M Hennessy on the following date(s): 6/23/04 (SAT) (Entered: 06/17/2004)
40 NOTICE of Service of First Supplemental Rule 26(A)(1) Disclosure Statement by pla (SAT) (Entered: 06/28/2004)
41 JOINT MOTION and Stipulation to Continue Deadline (60 days) for Good Faith Settlement Talks and Other Scheduled Deadlines by pla, dft [41−1] (SAT) (Entered: 07/29/2004)
42 NOTICE of Service of Second Supplemental Rule 26(A)(1) Disclosure Statement by pla (SAT) Modified on 08/02/2004 (Entered: 08/02/2004)
43 ORDER by Judge David G. Campbell that the Court has received a Joint Motion and Stipulation to Continue Deadline (60 days) for Good Faith Settlement Talks and Other Scheduled Deadlines by pla, dft [41−1]; IT IS HEREBY ORDERED the discovery

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 6 of 20

08/06/2004 09/02/2004 10/07/2004 11/10/2004 11/12/2004 11/15/2004 11/18/2004 11/19/2004 11/22/2004 11/22/2004 11/23/2004 11/26/2004 11/29/2004
12/02/2004
12/03/2004 12/03/2004

deadlines in this case shall be adjusted as follows: ; discovery ddl re−set for 12/17/04 ; dispositive motions now due 4/1/05 (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 08/05/2004)
44 JOINT STATUS REPORT by pla, dft (SAT) (Entered: 08/06/2004)
45 NOTICE of Service of Second Supplemental Rule 26(a)(1) Disclosure Statement by dft Lennar Homes of AZ (SAT) (Entered: 09/03/2004)
46 NOTICE of service of third supplemental disclosure statement pursuant to FRCivP 26(a) by dft Lennar Homes of AZ (KCS) (Entered: 10/08/2004)
47 MOTION (Joint and Stipulation) to Continue Deadline for Good Faith Settlement Talks (45 days) (set for 12/17/04) and Other Scheduled Deadlines by pla, dft [47−1] (second request) (SAT) (Entered: 11/12/2004)
48 MOTION for Partial Summary Judgment re Gregory Leach by dft [48−1] (SAT) (Entered: 11/15/2004)
49 Separate STATEMENT OF FACTS by dft in Support of Defendant's Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] (SAT) (Entered: 11/15/2004)
50 NOTICE of Service of Discovery Requests to Defendant by pla. (SAT) (Entered: 11/19/2004)
51 NOTICE by dft OF TAKING DEPO OF Custodian of Records of Centex Homes on the following date(s): 12/3/04 (SAT) (Entered: 11/19/2004)
52 NOTICE by pla OF TAKING Video DEPO OF Michael Dowell on the following date(s): 12/8/04 (SAT) Modified on 11/29/2004 (Entered: 11/29/2004)
53 First Amended NOTICE by pla OF TAKING DEPO OF David Kitnick on the following date(s): 12/16/04 (SAT) Modified on 11/29/2004 (Entered: 11/29/2004)
54 MOTION (titled "Notice of Request") for Oral Argument on Defendant's Motion for Partial Summary Judgment re Gregory Leach by dft [54−1] (SAT) (Entered: 11/29/2004)
56 NOTICE of Service of Third Supplemental Rule 26(A)(1) Disclosure Statement by pla (SAT) (Entered: 12/02/2004)
55 ORDER by Judge David G. Campbell that the parties have filed a Joint Motion and Stipulation to Continue Deadline for Good Faith Settlement Talks and Other Scheduled Deadlines by pla, dft [47−1], IT IS HEREBY ORDERED: 1. The deadline for completing fact discovery shall remain 12/17/04; 2. The deadline for Plaintiff's disclosure of full and complete expert reports as required by Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure shall be 2/11/05; 3. Defendant shall provide full and complete expert disclosure as required by Rule 26(a)(2)(C) no later than 3/4/05; 4. Expert depositions shall be completed no later than 3/25/05; 5. The dispositive motion deadline shall remain 4/1/05; 6. The deadline for engaging in good faith settlement talks shall be extended to 1/28/05. (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 11/29/2004)
57 ORDER by Judge David G. Campbell that the parties placed a conference call to the Court on 11/24/04 and explained some of the difficulties they are having in completing the depositions of fact witnesses by the 12/17/04 deadline. Given the difficulties scheduling depositions during the holiday season and the desire of the parties to not impose unnecessarily on third−party witnesses, the Court agreed that the deadline for completing fact discovery will be extended to 1/14/05. ; discovery ddl re−set for 1/14/05 ; The Court does not anticipate further extensions to this deadline. (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 12/02/2004)
58 NOTICE by pla OF TAKING DEPO OF Alan Violette on the following date(s): 12/16/04 (SAT) (Entered: 12/08/2004)
59 First Amended NOTICE by pla OF TAKING Video DEPO OF Michael Dowell on the following date(s): 12/8/04 (SAT) (Entered: 12/08/2004)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 7 of 20

12/03/2004 12/03/2004 12/03/2004 12/03/2004 12/03/2004 12/08/2004 12/09/2004 12/15/2004
12/15/2004 12/15/2004 12/17/2004 12/17/2004 12/27/2004 01/03/2005 01/03/2005 01/10/2005
01/12/2005 01/12/2005 01/12/2005

60 NOTICE by pla OF TAKING DEPO OF Carl Garoffo on the following date(s): 12/17/04 (SAT) (Entered: 12/08/2004)
61 NOTICE by pla OF TAKING DEPO OF Jon Jaffe on the following date(s): 12/16/04 (SAT) (Entered: 12/08/2004)
62 NOTICE by pla OF TAKING DEPO OF Dawn Bruchhauser on the following date(s): 12/14/04 (SAT) (Entered: 12/08/2004)
63 NOTICE by pla OF TAKING DEPO OF Lori Gallardo on the following date(s): 12/14/04 (SAT) (Entered: 12/08/2004)
64 Second Amended NOTICE by pla OF TAKING DEPO OF David Kitnick on the following date(s): 12/15/04 (SAT) (Entered: 12/08/2004)
65 STIPULATION (Joint) to Extend Plaintiff's Time until 1/7/05 to Respond to Defendant's Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] by pla, dft (SAT) (Entered: 12/10/2004)
66 NOTICE of Service of Fourth Supplemental Rule 26(A)(1) Disclosure Statement by pla (SAT) (Entered: 12/10/2004)
67 ORDER by Judge David G. Campbell that having considered the Stipulation [65−1] of the parties, IT IS HEREBY ORDERED that Plaintiff United States Equal Employment Opportunity Commission is granted an extension of time until 1/7/05 to serve its response to Defendant Lennar Homes of Arizona Inc's Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 12/15/2004)
68 MOTION for Partial Summary Judgment re Charlyne Sheehan by dft [68−1] (SAT) (Entered: 12/16/2004)
69 Separate STATEMENT OF FACTS by dft in Support of Motion for Partial Summary Judgment re Charlyne Sheehan by dft [68−1] (SAT) (Entered: 12/16/2004)
70 MOTION for partial summary judgment on claims of Carol Nikrant, Jacque Judge, Gordon Cameron II by dft [70−1] (DMT) (Entered: 12/21/2004)
71 STATEMENT OF FACTS by dft re motion for partial summary judgment on claims of Carol Nikrant, Jacque Judge, Gordon Cameron II by dft [70−1] (DMT) (Entered: 12/21/2004)
72 NOTICE of Service of Fifth Supplemental Rule 26 (A)(1) Disclosure Statement by pla (SAT) Modified on 12/29/2004 (Entered: 12/28/2004)
73 First Amended NOTICE by pla OF TAKING DEPO OF Jon Jaffe on the following date(s): 1/4/05 (SAT) (Entered: 01/03/2005)
74 NOTICE by pla OF TAKING CONTINUING DEPO OF David Kitnick on the following date(s): 1/5/05 (SAT) (Entered: 01/03/2005)
75 ORDER by Judge David G. Campbell that Plaintiffs may have until 2/11/05 to file its response to Defendant's Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] ; With respect to the remaining motions for summary judgment, Motion for Partial Summary Judgment re Charlyne Sheehan by dft [68−1] and Motion for Partial Summary Judgment on claims of Carol Nikrant, Jacque Judge, Gordon Cameron II by dft [70−1], Plaintiff shall have until 4/1/05 to file responses. Reply briefs shall be filed within the time allowed under the applicable rules; See order for various discovery/case management deadlines (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 01/10/2005)
76 MEMORANDUM by dft re "Late" Disclosure by Defendant of Fact Witnesses (SAT) (Entered: 01/13/2005)
77 MEMORANDUM by pla re Defendant's Late Disclosure of Witnesses (SAT) (Entered: 01/13/2005)
78 STIPULATION for Entry of Protective Order Regarding Protected Tax Information by pla, dft (SAT) (Entered: 01/13/2005)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 8 of 20

01/19/2005
01/19/2005 01/28/2005 01/31/2005 02/04/2005 02/10/2005 02/11/2005 02/11/2005 02/14/2005
02/15/2005
02/17/2005 02/28/2005

79 ORDER by Judge David G. Campbell that the Court has reviewed the parties' memoranda regarding ten witnesses disclosed by Defendant on 12/21/04 (memorandum [76−1], memorandum [77−1]). The Court concludes that this was untimely disclosure, particularly given the fact that Defendant has known about these witnesses for months and that the twice−extended discovery deadline was 1/14/05. Disclosure on the eve of the Holidays clearly did not provide Plaintiff with a reasonable opportunity to depose these witnesses before the discovery cut−off date. Plaintiff asks the Court to exclude these witnesses from participating in this litigation. Although such a sanction might be warranted if the case was ready for trial or dispositive motions were imminent, the Court concludes that a preferable remedy is available. Plaintiff will be permitted to depose the ten witnesses after the discovery cut−off date of 1/14/05. These depositions shall be completed on or before 2/8/05. This Order shall not extend the discovery deadline for any other purpose. (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 01/19/2005)
80 PROTECTIVE ORDER REGARDING PROTECTED TAX INFORMATION by Judge David G. Campbell pursuant to Stipulation for Entry of Protective Order Regarding Protected Tax Information by pla, dft [78−1] (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 01/19/2005)
81 NOTICE by pla OF TAKING DEPO OF Cindy Fatolotis on the following date(s): 2/4/05 (SAT) (Entered: 01/31/2005)
82 NOTICE of Service of Sixth Supplemental Rule 26(A)(1) Disclosure Statement by pla (SAT) (Entered: 01/31/2005)
83 NOTICE of Service of Seventh Supplemental Rule 26(A)(1) Disclosure Statement by pla (SAT) (Entered: 02/07/2005)
84 NOTICE by pla OF TAKING DEPO OF Stuart Hanson on the following date(s): 2/2/05 (SAT) (Entered: 02/11/2005)
85 STIPULATION to Permit dft to Supplement its Statement of facts [49−1] in Support of its Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] by pla EEOC, and dft Lennar Homes of AZ (NOTE: No Lodged Document Submitted) (KMG) Modified on 02/14/2005 (Entered: 02/14/2005)
87 NOTICE of service of discovery by pla. (SAT) (Entered: 02/15/2005)
86 ORDER by Judge David G. Campbell that on 3/8/05, the Court held a telephone conference with the parties. On the basis of that conference, the Court agreed that the depositions of a witness from Centex Homes may occur on 2/16/05, and that Dft may file a supplemental statement of facts in support of its previously−filed Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] on or before 2/21/05. Pla does not object to either of these dates. (cc: all counsel) re: order filed [86−1] (SAT) Modified on 02/15/2005 (ADI−ICMS, ). (Entered: 02/15/2005)
88 ORDER by Judge David G. Campbell having considered the Stipulation to Permit dft to Supplement its Statement of facts [49−1] in Support of its Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] by pla EEOC, and dft Lennar Homes of AZ, IT IS HEREBY ORDERED that on or before 2/21/05, dft Lennar Homes of Arizona Inc may supplement its Statement of Facts in support of Defendant's Motion for Partial Summary Judgment Re Gregory Leach; FURTHER ORDERED that pla Equal Employment Opportunity Commission shall have 30 days from delivery of the supplementation to the Leach MPSAJ by Lennar within which to file its response to the Leach MPSJ (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 02/15/2005)
89 Supplement ans Supplemental STATEMENT OF FACTS by dft to supplement the Statement of facts [49−1] in support of Defendant's Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] and supplement the Separate Statement of Facts [71−1] in support of the Motion for summary judgment on claims of Carol Nikrant, Jacque Judge, Gordon Cameron II by dft [70−1] (SAT) (Entered: 02/18/2005)
90 MOTION for Partial Summary Judgment re Limitation of Damages for Gregory Leach by dft [90−1] (SAT) (Entered: 02/28/2005)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 9 of 20

02/28/2005 02/28/2005 02/28/2005 03/07/2005 03/14/2005 03/15/2005
03/17/2005 03/17/2005 03/17/2005 03/17/2005 03/18/2005 03/18/2005 03/21/2005
03/21/2005 03/21/2005 03/21/2005 03/21/2005 03/29/2005 03/30/2005

91 STATEMENT OF FACTS by dft in Support of Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Gregory Leach by dft [90−1] (SAT) (Entered: 02/28/2005)
92 MOTION for Partial Summary Judgment re Limitation of Damages for Certain Claimants by dft [92−1] (SAT) (Entered: 03/01/2005)
93 STATEMENT OF FACTS by dft in Support of Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Certain Claimants by dft [92−1] (SAT) (Entered: 03/01/2005)
94 NOTICE of Service of Defendant's Expert Reports by dft (SAT) (Entered: 03/08/2005)
95 NOTICE by pla OF TAKING DEPO OF James Ward on the following date(s): 3/16/05 (SAT) (Entered: 03/15/2005)
96 NOTICE of Request for Oral Argument on Defendant's Motion for Partial Summary Judgment re: Limitation of Damages for Certain Claimants and on Defendant's Motion for Partial Summary Judgment re: Limitation of Damages for Gregory Leach by dft (SAT) (Entered: 03/16/2005)
97 NOTICE by pla OF TAKING DEPO OF Brooke H Warrick on the following date(s): 3/21/05 (SAT) (Entered: 03/18/2005)
98 NOTICE by pla OF TAKING DEPO OF Robert H Taylor on the following date(s): 3/23/05 (SAT) (Entered: 03/18/2005)
99 NOTICE by pla OF TAKING DEPO OF Lawrence S Mayer, MD, PhD on the following date(s): 3/22/05 (SAT) (Entered: 03/18/2005)
100 MOTION to Exceed Page Limits for doc(s) Response in Opposition to Defendant's Motion for Summary Judgment re Gregory Leach by pla [100−1] (Response not submitted) (SAT) Modified on 03/18/2005 (Entered: 03/18/2005)
101 RESPONSE by dft to Plaintiff's Motion to Exceed Page Limits for doc(s) Response in Opposition to Defendant's Motion for Summary Judgment re Gregory Leach by pla [100−1] (Response not submitted) (SAT) (Entered: 03/18/2005)
101 MOTION to Exceed Page Limitations in its Reply by dft [101−1] (reply not submitted) (SAT) Modified on 03/18/2005 (Entered: 03/18/2005)
102 ORDER by Judge David G. Campbell on the Motion to Exceed Page Limits for doc(s) Response in Opposition to Defendant's Motion for Summary Judgment re Gregory Leach by pla [100−1], IT IS HEREBY ORDERED that the page limit for the supporting brief to EEOC's Response in Opposition to Defendant's Motion for Summary Judgment re Gregory Leach be extended by four (4) pages for a total of 21 pages (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 03/21/2005)
103 NOTICE of Service of Supplement to Plaintiff's Expert Reports by pla (SAT) (Entered: 03/24/2005)
104 MOTION to Strike Facts and Evidence Submitted by Defendant in Statement of Facts [91−1] in Support of Motion for Partial Summary Judgment re Limitation of Damages for Gregory Leach by dft [90−1] by pla [104−1] (SAT) (Entered: 03/24/2005)
105 RESPONSE by pla in Opposition to Defendant's Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] (SAT) (Entered: 03/30/2005)
106 STATEMENT OF CONTROVERTING FACTS by pla in Support of its Opposition in Response to [105−1] Motion for Partial Summary Judgment re Gregory Leach by dft [48−1] (SAT) (Entered: 03/30/2005)
107 STIPULATION (Joint) to Extend Plaintiff's Time until 4/6/05 to Respond to Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Certain Claimants by dft [92−1] by pla, dft (SAT) (Entered: 03/30/2005)
108 MOTION to Exceed Page Limits for doc(s) Response in Opposition to Defendant's Motion for Partial Summary Judgment Re: Carol Nikrant, Jacque Judge, and Gordon Cameron by pla [108−1] (SAT) Modified on 03/30/2005 (Entered: 03/30/2005)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 10 of 20

03/30/2005 03/30/2005 03/30/2005
04/01/2005
04/01/2005 04/01/2005 04/01/2005 04/01/2005 04/01/2005 04/06/2005 04/06/2005 04/06/2005 04/07/2005
04/08/2005

109 RESPONSE by pla to Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Gregory Leach by dft [90−1] (SAT) (Entered: 03/30/2005)
110 STATEMENT OF CONTROVERTING FACTS by pla in Support of its Opposition in Response to [109−1] Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Gregory Leach by dft [90−1] (SAT) (Entered: 03/30/2005)
111 CROSS−MOTION to Exceed Page Limitations in its Reply for doc(s) Defendant's Reply to Plaintiff's Response in Opposition to Defendant's Motion for Partial Summary Judgment Re: Carol Nikrant, Jacque Judge, and Gordon Cameron by dft [111−1] and RESPONSE to Motion to Exceed Page Limits for doc(s) Response in Opposition to Defendant's Motion for Partial Summary Judgment Re: Carol Nikrant, Jacque Judge, and Gordon Cameron by pla [108−1] by dft (SAT) (Entered: 03/30/2005)
112 ORDER by Judge David G. Campbell on the Motion to Exceed Page Limits for doc(s) Response in Opposition to Defendant's Motion for Partial Summary Judgment Re: Carol Nikrant, Jacque Judge, and Gordon Cameron by pla [108−1], IT IS HEREBY ORDERED that the page limit for the supporting brief to EEOC's Response in Opposition to Defendant's Motion for Partial Summary Judgment re: Carol Nikrant, Jacque Judge and Gordon Cameron be extended by four (4) pages for a total of 21 pages; Defendant's reply may exceed the limit by 3 pages (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 04/01/2005)
113 RESPONSE by pla to motion for Partial Summary Judgment re Charlyne Sheehan by dft w/ requ for oral argument [68−1] (DDL) (Entered: 04/05/2005)
114 STATEMENT OF CONTROVERTING FACTS by pla in support of its opposition in response to dfts motion for partial summary jdgmnt re: Charlyne Sheehan (DDL) (Entered: 04/05/2005)
115 MOTION to strike statement of facts and evidence submitted by dft in mtn for partial s/j [71−1] by pla [115−1] (DDL) (Entered: 04/05/2005)
116 RESPONSE in opposition by pla to dfts motion for partial summary judgment on claims of Carol Nikrant, Jacque Judge, Gordon Cameron II by dft [70−1] (DDL) (Entered: 04/05/2005)
117 STATEMENT OF CONTROVERTING FACTS by pla in response to dfts motion for partial summary jdgmt re: Carol Nikrant, Jacque Judge, and Gordon Cameron[116−1] (DDL) (Entered: 04/05/2005)
119 RESPONSE by pla to Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Certain Claimants by dft [92−1] (SAT) (Entered: 04/07/2005)
120 STATEMENT OF FACTS by pla in Response to Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Certain Claimants by dft [92−1] (SAT) (Entered: 04/07/2005)
121 STIPULATION to Enlarge Time for Defendant to File (1) Replies in Support of Certain Motions for Partial Summary Judgment, and (2) Response to Plaintiff EEOC's Motion to Strike Facts and Evidence by Defendant in Motion for Partial Summary Judgment Re: Gregory Leach by pla, dft (SAT) (Entered: 04/07/2005)
118 ORDER by Judge David G. Campbell that the Court has received a Joint Stipulation to Extend Plaintiff's Time to Respond to Defendant's Motion for Partial Summary Judgment re Limitation of Damages for Certain Claimants by dft [92−1] pla, dft [107−1], IT IS HEREBY ORDERED Plaintiff may have until 4/6/05 to file a response to Defendant's Motion for Partial Summary Judgment re: Limitation of Damages for Certain Claimants (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 04/07/2005)
122 ORDER by Judge David G. Campbell that having considered the Stipulation [121−1] of the parties, IT IS HEREBY ORDERED that on or before 4/18/05, dft LEnnar Homes of Arizona Inc may file replies in support of the following pleadings: 1. Motion for Partial Summary Judgment Re: Gregory Leach; and 2. Motion for Partial Summary Judgment Re: Limitation of Damages for Gregory Leach; FURTHER ORDERED that on or before 4/18/05, Lennar may file its response to Plaintiff EEOC's Motion to Strike

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 11 of 20

04/08/2005 04/14/2005 04/14/2005 04/15/2005 04/18/2005 04/18/2005
04/18/2005 04/18/2005 04/18/2005
04/18/2005 04/19/2005 04/20/2005

Facts and Evidence Submitted by Defendant in Defendant's Motion for Partial Summary Judgment Re: Gregory Leach (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 04/08/2005)
123 Notice of Filing of Original Signed DECLARATION of Gregory Leach by pla (SAT) (Entered: 04/11/2005)
124 MOTION to Exceed Page Limitations for doc(s) Defendant's Reply in Support of its Motion for Partial Summary Judgment re: Gregory Leach by dft Lennar Homes of AZ [124−1] (SAT) (Entered: 04/15/2005)
125 STIPULATION to Enlarge Time for Defendant to File (1) Replies in Support of Certain Motions for Partial Summary Judgment, and (2) Response to Plaintiff EEOC's Motion to Strike Facts and Evidence Submitted by Defendant in Motion for Partial Summary Judgment re: Carol Nikrant, Jacque Judge, and Gordon Cameron by pla, dft (SAT) (Entered: 04/15/2005)
126 ORDER by Judge David G. Campbell that pending before the Court is Defendant's Motion to Exceed Page Limitations in its Reply by Lennar Homes of AZ [124−1], IT IS ORDERED that Defendants may exceed the page limit by 3 pages in their reply in support of its Motion for Partial Summary Judgment re: Gregory Leach (cc: all counsel) (SAT) (ADI−ICMS, ). (Entered: 04/15/2005)
127 ORDER by Judge David G. Campbell that dft may exceed the page limitation in its Reply in Support of its Motion for Partial Summary Judgment re: Gregory Leach [124−1] by four pages for a total of 15 pages. al Summary Judgment re: Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II. (cc: all counsel) (KMG) (ADI−ICMS, ). (Entered: 04/18/2005)
128 ORDER by Judge David G. Campbell that on or before 4/26/05 dft Lennar Homes of Arizona, Inc. may file replies in support of the following: 1) Motion for Partial Summary Judgment re: Charlyne Sheehan; 2) Motion for Partial Summary Judgment re: Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II; and 3) Motion for Partial Summary Judgment re: Limitation of Damages for Certain Claimants. FURTHER ORDERED that on or before 4/26/05, Lennar may file its response to pla EEOC's Motion to Strike Facts and Evidence Submitted by Defendant in Motion for Partial Summary Judgment re: Carol Nikrant, Jacque Judge, and Gordon J. Cameron II. (cc: all counsel) (KMG) (ADI−ICMS, ). (Entered: 04/18/2005)
129 REPLY by dft Lennar Homes of AZ to response to motion for Partial Summary Judgment re Gregory Leach by dft [48−1] (LSP) (Entered: 04/19/2005)
130 STATEMENT OF FACTS by dft Lennar Homes of AZ re reply to Pla's response to motion for partial summary judgment re: Gregory Leach [129−1] (LSP) (Entered: 04/19/2005)
131 CROSS−MOTION to supplement statement of facts [91−1], statement of facts [93−1], statement of facts [89−1], statement of facts [71−1], statement of facts [69−1], statement of facts [49−1] in support of the Motions for Partial Summary Judgment by dft Lennar Homes of AZ [131−1] and RESPONSE to motion to Strike Facts and Evidence Submitted by Defendant in Statement of Facts [91−1] in Support of Motion for Partial Summary Judgment re Limitation of Damages for Gregory Leach by dft [90−1] by pla [104−1] by dft Lennar Homes of AZ (LSP) (Entered: 04/19/2005)
132 REPLY by dft Lennar Homes of AZ to response to motion for Partial Summary Judgment re Limitation of Damages for Gregory Leach by dft [90−1] (SRB) (Entered: 04/19/2005)
133 MOTION to strike any claims asserted on behalf of Gregory Leach and Charlyne Sheehan by dft Lennar Homes of AZ [133−1] , or alternatively to amend answer to complaint [6−1] re: claims asserted on behalf of Gregory Leach and Charlyne Sheehan by dft Lennar Homes of AZ [133−2] No Lodged Document, Unsigned Amended Answer atttached as Exhibit A (LSP) (Entered: 04/20/2005)
134 STIPULATION to Hold All Matters in Connection with the Litigation in Abeyance until 5/16/05 Pending Mediation by pla, dft (SAT) (Entered: 04/21/2005)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 12 of 20

04/25/2005 04/26/2005 04/28/2005 05/05/2005 05/10/2005
06/03/2005 06/08/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005 07/15/2005

135 ORDER by Judge David G. Campbell granting stipulation to Hold All Matters in Connection with the Litigation in Abeyance until 5/16/05 Pending Mediation by pla, dft ; stay deadline set for 5/16/05 , case stayed as to all matters, except mediation (cc: all counsel) (KCS) (ADI−ICMS, ). (Entered: 04/25/2005)
136 NOTICE by pla EEOC of filing of Original signed Affidavit of Carol Nikrant, which was an attachment (as Exhibit C) to Pla's Statement of Facts in Response to Dft's Motion for Partial Sum Jgm. (LSP) (Entered: 04/27/2005)
137 NOTICE by pla EEOC of Filing of Original Signed Affidavit of Carol Nikrant which was an attachment (as Exhibit S) to Pla's Statement of Facts in support of its Response to Dft's Motion for Partial Sum Jgm (LSP) (Entered: 04/29/2005)
138 STIPULATION to hold all matters in connection with the litigation in abeyance until 6/17/05 pending continued negotiations by pla EEOC, dft Lennar Homes of AZ (SRB) (Entered: 05/06/2005)
139 ORDER by Judge David G. Campbell granting stipulation that all matters in connection with this litigation (except mediation and continued negotiations), including motions, responses, replies, or other matters presently required, which may be due before 6/17/05, or that may be filed with the Court, shall be held in abeyance and shall not be filed until 6/17/05, pending attempted resolution of this matter. (cc: all counsel) (KMG) (ADI−ICMS, ). (Entered: 05/10/2005)
140 STIPULATION to (Stay) Hold All Matters in Connectionwith the Litigation in Abeyance until 7/15/05 Pending Continued Negotiations by pla EEOC, and dft Lennar Homes of AZ (KMG) (Entered: 06/06/2005)
141 ORDER by Judge David G. Campbell granting stipulation to (Stay) Hold All Matters in Connectionwith the Litigation in Abeyance until 7/15/05 Pending Continued Negotiations by pla EEOC, and dft Lennar Homes of AZ (cc: all counsel) (SRB) (ADI−ICMS, ). (Entered: 06/08/2005)
142 RESPONSE re 133 Defendant's Motion to strike any claims asserted on behalf of Gregory Leach and Charlyne Sheehan by dft Lennar Homes of AZ [133−1], or alternatively to amend answer to complaint. Filed by Equal Employment Opportunity Commission. (RDS) (Entered: 07/18/2005)
143 REPLY re 91 92 Motion to Strike Facts and Evidence Submitted by Defendant, and statement of facts; and Reply re 131 Defendant's Cross−Motion to Supplement Statement of Facts. Filed by Equal Employment Opportunity Commission, Equal Employment Opportunity Commission. (RDS) (Entered: 07/18/2005)
144 NOTICE of Appearance by Karen E. Nutter, Sally Clifford Shanley, P David Lopez, Mary Joleen O'Neill, C Emanuel Smith on behalf of Equal Employment Opportunity Commission (KCS) (Entered: 07/19/2005)
145 MOTION to Strike 137 136 exhibit and affidavit to pla's response to motion for partial summary judgment re Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II by Lennar Homes of Arizona Inc.. (CMM, ) (Entered: 07/20/2005)
146 REPLY to Response to Motion re 68 Motion for Partial Summary Judgment re Charlyne Sheehan filed by Lennar Homes of Arizona Inc.. (CMM, ) (Entered: 07/20/2005)
147 REPLY to Response to Motion re 92 Motion for Partial Summary Judgment re limitation of damages for certain claimants filed by Lennar Homes of Arizona Inc. (CMM, ) (Entered: 07/20/2005)
148 MOTION to Supplement in replies filed in support of dft's motion for partial summary judgment: re Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II by Lennar Homes of Arizona Inc (no documents submitted). (CMM, ) (Entered: 07/20/2005)
149 REPLY to Response to Motion re 70 Motion for Partial Summary Judgment re Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II filed by Lennar Homes of Arizona Inc.. (CMM, ) (Entered: 07/20/2005)
150 RESPONSE to Motion re 145 MOTION to Strike facts and evidence submitted by dft in motion for partial summary judgment re Carol Nikrant, Jaque [sic] Judge and

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 13 of 20

07/15/2005 07/18/2005 07/25/2005 07/27/2005 07/27/2005 08/01/2005 08/01/2005 08/08/2005 08/08/2005 08/12/2005 10/03/2005
10/26/2005
10/31/2005 11/01/2005

Gordon Cameron re 137 136 filed by Lennar Homes of Arizona Inc.. (CMM, ) (Entered: 07/20/2005)
151 SEPARATE STATEMENT OF FACTS in support of dft's reply in support of motion for partial summary judgment re Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II re 70 Motion for Partial Summary Judgment by Defendant Lennar Homes of Arizona Inc. (includes 2 volumes exhibits, A − B) (CMM, ) (Entered: 07/20/2005)
152 MOTION to Correct the record at 89 ; Supplemental Statement of Facts in support of Dft's Motion for Partial Sum Jgm, (NOTE: Corrected Document not attached) by Lennar Homes of Arizona Inc. (LSP, ) (Entered: 07/20/2005)
153 REPLY to Response to Motion re 133 Motion to Strike any claims asserted on behalf of Gregory Leach and Charlyne Sheehan and, alternatively Motion to Amend answer re calims asserted on behalf of Gregory Leach and Charlyne Sheehan filed by Lennar Homes of Arizona Inc.. (LSP, ) (Entered: 07/26/2005)
154 MOTION for Extension of Time within which to file reply in support of cross−motion to supplement dft's statements of facts in support of motion for partial summary judgment (to 7/27/05) by Lennar Homes of Arizona Inc.. (LAD) (Entered: 07/29/2005)
155 REPLY to Response to 152 MOTION to Supplement 89 Statement filed by Lennar Homes of Arizona Inc (LAD) (Entered: 07/29/2005)
156 RESPONSE in Opposition re 148 MOTION to Supplement filed by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 08/01/2005)
157 RESPONSE in Opposition re 145 MOTION to Strike 137 Other Notice, 136 Other Notice Exhibit filed by Equal Employment Opportunity Commission. (Attachments: # 1)(Lopez, P) (Entered: 08/01/2005)
158 REPLY to Response to Motion re 148 MOTION to Supplement Reply Statement of Facts in Support of Lennar's Motion for Partial Summary Judgment: Re: Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II filed by Lennar Homes of Arizona Inc.. (Reh, Deanie) (Entered: 08/08/2005)
159 REPLY to Response to Motion re 145 MOTION to Strike 137 Other Notice, 136 Other Notice Exhibit and Affidavit to Plaintiff's "Response to Motion for Partial Summary Judgment Re: Carol A. Nikrant, Jacque R. Judge, and Gordon J. Cameron II" filed by Lennar Homes of Arizona Inc.. (Reh, Deanie) (Entered: 08/08/2005)
160 ORDER granting 154 Motion for Extension of Time to 7/27/05 to file Reply in Support of Motion for Partial Sum Jgm . Signed by Judge David G. Campbell on 8/8/05. (LSP) (Entered: 08/12/2005)
161 ORDER denying 48 Motion for Partial Summary Judgment, denying 54 Motion for Hearing, denying 68 Motion for Partial Summary Judgment, denying 70 Motion for Partial Summary Judgment, denying 90 Motion for Partial Summary Judgment, denying 92 Motion for Partial Summary Judgment, granting 101 Motion for Leave to File Excess Pages, finding as moot 104 Motion to Strike, finding as moot 115 Motion to Strike, granting 131 Motion to Supplement, denying 133 Motion to Amend/Correct, finding as moot 145 Motion to Strike, granting 148 Motion to Supplement, granting 152 Motion to Amend/Correct. Signed by Judge David G Campbell on 9/30/05. (DGC, ) (Entered: 10/03/2005)
162 ORDER re Motions in Limine due by 12/30/2005; responses to motions in limine due 1/6/06; no replies allowed. Proposed Pretrial Order due by 12/30/2005. Pretrial Conference set for 1/13/2006 04:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 10/26/05. (DGC, ) (Entered: 10/26/2005)
163 MOTION for Admission Pro Hac Vice for Ted D Meyer on behalf of Lennar Homes of Arizona Inc.. (BAS, ) (Entered: 11/01/2005)
164 ORDER pursuant to General Order 05−25 granting 163 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.

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 14 of 20

11/14/2005 11/14/2005 11/21/2005
11/21/2005
02/24/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006

(BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 11/01/2005)
165 APPLICATION re: for Substitution of Counsel by Defendant Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 11/14/2005)
166 First MOTION to Continue Pretrial Conference and Related Pretrial Deadlines by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 11/14/2005)
167 ORDER granting re 165 APPLICATION re: for Substitution of Counsel by Defendant Lennar Homes of Arizona Inc.. (Schaffer, Robert) filed by Lennar Homes of Arizona Inc.,, Attorney Peter D Baird for Lennar Homes of Arizona Inc., Richard Seth Cohen for Lennar Homes of Arizona Inc., Robert Gerald Schaffer for Lennar Homes of Arizona Inc., Ted D Meyer for Lennar Homes of Arizona Inc. added. Attorney Arthur W Pederson and Deanie June Reh terminated.. Signed by Judge David G Campbell on 11/18/05. (MAP, ) (Entered: 11/21/2005)
168 ORDER granting 166 Motion to Continue. Motions in limine due by 3/3/2006, responses to motions in limine due by 3/10/2006, no replies permitted. Proposed Pretrial Order due by 3/3/2006. Pretrial Conference set for 3/17/2006 04:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 11/21/05. (DGC, ) (Entered: 11/21/2005)
169 Notice re Service of Eighth Supplemental Disclosure by Equal Employment Opportunity Commission (Lopez, P) (Entered: 02/24/2006)
170 TRIAL BRIEF re Wilfulness by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
171 TRIAL BRIEF re Post Hoc Rationalization by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
172 TRIAL BRIEF re Equitable Relief by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
173 TRIAL BRIEF re Similarly Situated by Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 03/03/2006)
174 Notice of Filing Proposed Pretrial Order filed by Equal Employment Opportunity Commission (Attachments: # 1)(Lopez, P) (Entered: 03/03/2006)
175 Proposed Voir Dire by Equal Employment Opportunity Commission. (Attachments: # 1)(Lopez, P) (Entered: 03/03/2006)
176 STATEMENT of Statement of the Case by Plaintiff Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
177 Notice re of Filing Form of Verdict by Equal Employment Opportunity Commission (Lopez, P) (Entered: 03/03/2006)
178 MOTION to Strike Testimony of Defense Expert James Ward by Equal Employment Opportunity Commission. (Attachments: # 1)(Lopez, P) (Entered: 03/03/2006)
179 MOTION in Limine re: Greg Leach by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
180 MOTION in Limine re: Deanie Reh by Equal Employment Opportunity Commission. (Attachments: # 1)(Lopez, P) (Entered: 03/03/2006)
181 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
182 MOTION in Limine re: Tax Records by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
183 MOTION in Limine re: Gordon Cameron by Equal Employment Opportunity Commission. (Attachments: # 1)(Lopez, P) (Entered: 03/03/2006)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 15 of 20

03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006
03/03/2006
03/03/2006 03/03/2006 03/03/2006
03/03/2006 03/03/2006
03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006
03/03/2006
03/03/2006

184 TRIAL BRIEF re Equitable Relief by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
185 MOTION in Limine re: Defendant's Motion In Limine No. 1 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
186 TRIAL BRIEF re Back Pay by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
187 TRIAL BRIEF re Discriminatory Discharge by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
188 MOTION in Limine re: Defendant's Motion in Limine No. 2 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
189 MOTION in Limine re: Defendant's Motion in Limine No. 3 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
190 NOTICE of Attorney Substitution by Sally Clifford Shanley (Shanley, Sally) Modified on 4/17/2006 (LAD). MODIFIED TO REFLECT RITA BYRNES KITTLE IS SUBSTITUTED IN PLACE OF C. EMANUEL SMITH. (Entered: 03/03/2006)
191 MOTION to Strike Testimony of Robert Taylor by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A − D# 2 Exhibit E − G)(Lopez, P) (Entered: 03/03/2006)
192 MOTION in Limine re: Defendant's Motion in Limine No. 5 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
193 MOTION in Limine re: Defendant's Motion in Limine No. 4 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
194 MOTION to Strike Report and Testimony of Brooke Warrick, Ph.D. or, Alternatively, Request for Hearing by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Marshall, Michelle) (Entered: 03/03/2006)
195 MOTION in Limine re: Defendant's Motion in Limine No. 6 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
196 Eighth MOTION in Limine re: Exclusion of Testimony that Dowell and Lennar Would Not Discriminate Based on Age by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/03/2006)
197 MOTION in Limine re: Defendant's Motion in Limine No. 7 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
198 MOTION in Limine re: Defendant's Motion in Limine No. 8 by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/03/2006)
199 MOTION in Limine re: Dr. Lawrence Mayer (11) by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Marshall, Michelle) (Entered: 03/03/2006)
200 Tenth MOTION in Limine re: Unnamed Witnesses by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 03/03/2006)
201 Ninth MOTION in Limine re: Centex Homes by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 03/03/2006)
202 MOTION in Limine re: Age Profile (12) by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Marshall, Michelle) (Entered: 03/03/2006)
203 MOTION for Sanctions against Defendant Lennar Homes of Arizona by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum of Points and Authorities# 2 Exhibit)(Marshall, Michelle) (Entered: 03/03/2006)
204 Sixth MOTION in Limine re: American Lives Survey by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Marshall, Michelle) (Entered: 03/03/2006)
205 Fourth MOTION in Limine re: 4th Quarter Survey Summaries by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Marshall, Michelle) (Entered:

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 16 of 20

03/06/2006 03/07/2006 03/07/2006 03/08/2006 03/10/2006 03/10/2006
03/10/2006 03/10/2006 03/10/2006
03/10/2006 03/10/2006
03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/10/2006

03/03/2006)
206 Notice re Defendant's Verdict Forms by Lennar Homes of Arizona Inc. (Schaffer, Robert) (Entered: 03/06/2006)
207 MOTION to Withdraw 203 MOTION for Sanctions against Defendant Lennar Homes of Arizona by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/07/2006)
208 ERRATA re 187 Trial Brief, 176 Statement of the Case by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Trial Brief on Discriminatory Discharge# 2 Statement of the Case)(Lopez, P) (Entered: 03/07/2006)
209 ERRATA re 174 Notice of Filing Proposed Pretrial Order by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Amended Joint Pretrial# 2 Exhibit List)(Lopez, P) (Entered: 03/08/2006)
210 RESPONSE to Motion re 188 MOTION in Limine re: Defendant's Motion in Limine No. 2 QUALIFICATIONS OF EMPLOYEES filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Lopez, P) (Entered: 03/10/2006)
211 RESPONSE to Motion re 192 MOTION in Limine re: Defendant's Motion in Limine No. 5 re EXCLUDE EVIDENCE OF SETTLEMENT AND SEPARATION AGREEMENTS filed by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/10/2006)
212 RESPONSE to Motion re 179 MOTION in Limine re: Greg Leach filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
213 RESPONSE to Motion re 180 MOTION in Limine re: Deanie Reh filed by Lennar Homes of Arizona Inc.. (Attachments: # 1 Exhibit 1)(Schaffer, Robert) (Entered: 03/10/2006)
214 RESPONSE to Motion re 198 MOTION in Limine re: Defendant's Motion in Limine No. 8 CONCERNING TERMINATION OF DAN LEDWIDGE filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibits A−F)(Lopez, P) (Entered: 03/10/2006)
215 RESPONSE to Motion re 183 MOTION in Limine re: Gordon Cameron filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
216 RESPONSE to Motion re 204 Sixth MOTION in Limine re: American Lives Survey, 205 Fourth MOTION in Limine re: 4th Quarter Survey Summaries filed by Lennar Homes of Arizona Inc.. (Attachments: # 1 Exhibit)(Schaffer, Robert) (Entered: 03/10/2006)
217 RESPONSE to Motion re 182 MOTION in Limine re: Tax Records filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
218 RESPONSE to Motion re 196 Eighth MOTION in Limine re: Exclusion of Testimony that Dowell and Lennar Would Not Discriminate Based on Age filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
219 RESPONSE to Motion re 201 Ninth MOTION in Limine re: Centex Homes filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
220 RESPONSE to Motion re 200 Tenth MOTION in Limine re: Unnamed Witnesses filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
221 RESPONSE to Motion re 199 MOTION in Limine re: Dr. Lawrence Mayer (11) filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
222 RESPONSE to Motion re 202 MOTION in Limine re: Age Profile (12) filed by Lennar Homes of Arizona Inc.. (Schaffer, Robert) (Entered: 03/10/2006)
223 MOTION to Strike 192 MOTION in Limine re: Defendant's Motion in Limine No. 5, 198 MOTION in Limine re: Defendant's Motion in Limine No. 8, 185 MOTION in Limine re: Defendant's Motion In Limine No. 1, 197 MOTION in Limine re: Defendant's Motion in Limine No. 7, 188 MOTION in Limine re: Defendant's Motion

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 17 of 20

03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/14/2006 03/14/2006 03/17/2006 03/17/2006 03/17/2006
03/20/2006

in Limine No. 2, 189 MOTION in Limine re: Defendant's Motion in Limine No. 3, 193 MOTION in Limine re: Defendant's Motion in Limine No. 4, 195 MOTION in Limine re: Defendant's Motion in Limine No. 6 by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/10/2006)
224 RESPONSE to Motion re 185 MOTION in Limine re: Defendant's Motion In Limine No. 1 CONCERNING THE FAIRNESS OR SOUNDNESS OF LENNAR?S BUSINESS PRACTICES filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1)(Lopez, P) (Entered: 03/10/2006)
225 RESPONSE to Motion re 193 MOTION in Limine re: Defendant's Motion in Limine No. 4 Directed at testimony by former customers filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Lopez, P) (Entered: 03/10/2006)
226 RESPONSE to Motion re 197 MOTION in Limine re: Defendant's Motion in Limine No. 7 CONCERNING SALES EMPLOYEES WHO WERE NOT TERMINATED PRIOR TO A COMMUNITY CLOSING filed by Equal Employment Opportunity Commission. (Lopez, P) (Entered: 03/10/2006)
227 RESPONSE to Motion re 195 MOTION in Limine re: Defendant's Motion in Limine No. 6 Re: HOW NON−SALES PERSONNEL WERE TREATED BASED ON THE CUSTOMER SATISFACTION SURVEYS filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Lopez, P) (Entered: 03/10/2006)
228 RESPONSE to Motion re 189 MOTION in Limine re: Defendant's Motion in Limine No. 3 Re: REQUEST TO EXCLUDE STATEMENTS ALLEGEDLY MADE BY A FORMER LENNAR EMPLOYEE filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibits 1−4)(Lopez, P) (Entered: 03/10/2006)
229 RESPONSE to Motion re 223 MOTION to Strike 192 MOTION in Limine re: Defendant's Motion in Limine No. 5, 198 MOTION in Limine re: Defendant's Motion in Limine No. 8, 185 MOTION in Limine re: Defendant's Motion In Limine No. 1, 197 MOTION in Limine re: Def filed by Lennar Homes of Arizona Inc.. (Attachments: # 1 Exhibit)(Schaffer, Robert) (Entered: 03/14/2006)
230 ORDER granting 207 Motion to Withdraw 203 MOTION for Sanctions against Defendant Lennar Homes of Arizona ; Minute Entry 203 Ruled On Motion. Signed by Judge David G Campbell on 3/14/06. (DGC,nvj) (Entered: 03/14/2006)
231 Notice re Service of Ninth Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Lopez, P) (Entered: 03/17/2006)
232 Court's Proposed Preliminary Jury Instructions and Voir Dire. (DGC,nvj) (Entered: 03/17/2006)
237 Minute Entry for proceedings held before Judge David G Campbell. Appearances: P. David Lopez, Karen Nutter, Mary O'Neill and Rita Kittle for pla; Richard Cohen, Ted Meyer, Robert Schaffer and Ruthie White for dft. Pretrial Conference held on 3/17/2006. IT IS ORDERED setting Jury Trial for 7/14/2006 09:00 AM before Judge David G Campbell; counsel to appear at 8:30 AM. Estimated length: 9 days. Counsel agree to a jury of ten. Final Pretrial Conference set for 6/22/2006 04:30 PM before Judge David G Campbell; out of state counsel may appear by telephone. Pending motions discussed and ruled on as stated on the record. Pursuant to agreement of the parties, Magistrate Judge Lawrence O. Anderson having been randomly drawn, IT IS ORDERED referring this matter to Magistrate Judge Anderson for settlement conference. Counsel are directed to contact said chambers to schedule a hearing date and time. This is a text only entry. There is no pdf document attached.(Court Reporter Patricia Lyons.) (LMR, ) (Entered: 03/22/2006)
233 ORDER. The Court held a discovery conference call with the parties on March 20, 2006. The parties' dispute concerned the extent of permissible discovery into mitigation of damages information arising since the close of discovery in December of 2004. The Court ruled that Defendant will be permitted to obtain updated employment records from the claimants, as agreed to by the EEOC, but will not be permitted to subpoena spouse employment records, accountant records, or loan application information related to the claimants. Defendant shall review the court file for the

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 18 of 20

03/20/2006 03/22/2006
03/22/2006
04/13/2006 04/17/2006 05/24/2006 05/25/2006 05/26/2006 05/30/2006 05/30/2006 05/31/2006
06/05/2006 06/15/2006

bankruptcy filed by a claimant and confer with the EEOC on whether additional discovery is needed. Signed by Judge David G Campbell on 3−20−06. (DGC)This is a text−only order; there is no corresponding pdf document. (Entered: 03/20/2006)
234 RESPONSE to Motion re 178 MOTION to Strike Testimony of Defense Expert James Ward Response to Plaintiff's Motion to Exclude Testimony of Defense Expert James Ward, Ph.D. filed by Lennar Homes of Arizona Inc.. (Cohen, Richard) (Entered: 03/20/2006)
235 ORDER denying 179 Motion in Limine, granting 180 Motion in Limine, denying 182 Motion in Limine, denying 183 Motion in Limine, denying 185 Motion in Limine, denying 188 Motion in Limine, denying 189 Motion in Limine, granting 192 Motion in Limine, denying 193 Motion in Limine, denying 195 Motion in Limine, denying 196 Motion in Limine, denying 197 Motion in Limine, granting 198 Motion in Limine, denying 199 Motion in Limine, denying 200 Motion in Limine, granting 201 Motion in Limine, granting 202 Motion in Limine, denying 204 Motion in Limine, denying 205 Motion in Limine. Signed by Judge David G Campbell on 3/22/06. (DGC,nvj) (Entered: 03/22/2006)
236 ORDER re Jury Trial set for 7/14/2006 09:00 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Pretrial Conference set for 6/22/2006 04:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 3/22/06. (DGC,nvj) (Entered: 03/22/2006)
238 SETTLEMENT CONFERENCE ORDER: Settlement Conference set for 5/31/2006 at 1:30 PM before Magistrate Judge Lawrence O Anderson.. Signed by Judge Lawrence O Anderson on 4/12/06. (TLJ) (Entered: 04/13/2006)
239 NOTICE TO FILER OF DEFICIENCY re 190 Notice of Attorney Substitution filed by Equal Employment Opportunity Commission. Description of deficiency: Attorney substitution not completed pursuant to Notice. (LAD) (Entered: 04/17/2006)
240 TRANSCRIPT DESIGNATION AND ORDER FORM by Lennar Homes of Arizona Inc. for proceedings held on 03/17/2006 before Judge David G. Campbell. (Cohen, Richard) (Entered: 05/24/2006)
241 TRANSCRIPT DESIGNATION AND ORDER FORM by Equal Employment Opportunity Commission for proceedings held on 3/17/2006 before Judge David G. Campbell. (Shanley, Sally) (Entered: 05/25/2006)
242 MOTION for Sanctions Defendant's Rule 37 Motion to Exclude Damages Claims by Lennar Homes of Arizona Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Schaffer, Robert) (Entered: 05/26/2006)
243 Notice re Service of Discovery by Equal Employment Opportunity Commission 10th Supplemental Disclosure Statement (Lopez, P) (Entered: 05/30/2006)
245 TRANSCRIPT of Pretrial Conference Proceedings held on 3/17/06 before Judge David G Campbell. Court Reporter: Patricia Lyons. (BAS, ) (Entered: 06/02/2006)
244 Minute Order: This is the time set for settlement conference. Present are counsel for the EEOC, Mary Joleen O'Neil; Karen E. Nutter and P. David Lopez; Sales persons Charlyne Sheehan and Gordon J. Cameron, II; Sales Manager Gregory E. Leach; Jacque Judge, Carol Nikrant and Dolores M. Nelson with the EEOC. Also present are Ted D. Meyer and Robert Schaffer, counsel for Lennar Homes of Arizona and Linda Fitzpatrick with Human Resources of Lennar Homes. A court reporter is not present nor are the proceedings tape recorded. A settlement is not reached. (vlg) (This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 05/31/2006)
246 Notice re Service of 11th Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Lopez, P) (Entered: 06/05/2006)
247 RESPONSE in Opposition re 242 MOTION for Sanctions Defendant's Rule 37 Motion to Exclude Damages Claims filed by Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Nutter, Karen) (Entered: 06/15/2006)

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 19 of 20

06/21/2006 06/22/2006 06/22/2006
06/22/2006
06/23/2006 06/23/2006 06/23/2006 06/23/2006 06/23/2006 06/23/2006 06/28/2006
06/28/2006 07/05/2006
07/05/2006 07/06/2006 07/07/2006 07/10/2006

248 Notice re Disclosure Statement by Equal Employment Opportunity Commission (Twelfth Supplemental) (Lopez, P) (Entered: 06/21/2006)
249 Notice by Lennar Homes of Arizona Inc. of Additional Voir Dire Questions (Schaffer, Robert) (Entered: 06/22/2006)
250 ORDER denying 223 Motion to Strike Defendants' Motions in Limine. The Court considered and ruled on the motions in limine at the Final Pretrial Conference on March 17, 2006. This motion is denied as moot. Signed by Judge David G Campbell on 6−22−06. (DGC)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/22/2006)
257 Minute Entry for proceedings held before Judge David G Campbell. Appearances: Rita Kittle, P. David Lopez, Karen Nutter and Mary O'Neill for pla; Ted Meyer for dft. Pretrial Conference held on 6/22/2006. The Court rules on pending motions as stated on the record. Separate order to follow. IT IS ORDERED affirming jury trial set for 7/14/06 at 9:00 a.m.; counsel to be present at 8:30 a.m. This is a text only entry. There is no pdf document attached. (Court Reporter Patricia Lyons.) (LMR, ) (Entered: 06/27/2006)
251 ORDER granting 178 Motion to Strike, granting 191 Motion to Strike, granting 194 Motion to Strike, granting in part and denying in part 242 Motion for Sanctions. Signed by Judge David G Campbell on 6/23/06. (NVJ) (Entered: 06/23/2006)
252 NOTICE of Deposition of Gordon J. Cameron, filed by Lennar Homes of Arizona Inc.. (Cohen, Richard) (Entered: 06/23/2006)
253 NOTICE of Deposition of Jacque Judge, filed by Lennar Homes of Arizona Inc.. (Cohen, Richard) (Entered: 06/23/2006)
254 NOTICE of Deposition of Gregory E. Leach, filed by Lennar Homes of Arizona Inc.. (Cohen, Richard) (Entered: 06/23/2006)
255 NOTICE of Deposition of Charlyne Sheehan, filed by Lennar Homes of Arizona Inc.. (Cohen, Richard) (Entered: 06/23/2006)
256 NOTICE of Deposition of Carol Nikrant, filed by Lennar Homes of Arizona Inc.. (Cohen, Richard) (Entered: 06/23/2006)
258 ORDER re settlement discussions. Now that the Court has ruled on all pretrial issues, counsel are directed to meet and confer regarding the possibility of settlement before trial begins. The conference may occur with or without clients present and with or without the assistance of a mediator, but counsel shall meet in person to discuss the possibility of settlement prior to July 14, 2006. Out−of−state counsel may participate in the conference by telephone. Signed by Judge David G Campbell on 6/28/06. (NVJ) (Entered: 06/28/2006)
259 Notice re Service of 13th Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Lopez, P) (Entered: 06/28/2006)
260 TRANSCRIPT DESIGNATION AND ORDER FORM Final Pretrial Hearing by Equal Employment Opportunity Commission for proceedings held on 06/22/2006 before Judge David G. Campbell. (Shanley, Sally) Modified on 7/6/2006 (LCF, ). DOCUMENT IS UNSIGNED, ATTORNEY NOTICED TO REFILE. (Entered: 07/05/2006)
261 TRANSCRIPT DESIGNATION AND ORDER FORM Final Pretrial Conference by Equal Employment Opportunity Commission for proceedings held on 06/22/2006 before Judge David G. Campbell. (Shanley, Sally) (Entered: 07/05/2006)
262 NOTICE TO FILER OF DEFICIENCY re 260 Transcript Order Form filed by Equal Employment Opportunity Commission. Description of deficiency: Document is unsigned, attorney noticed to refile. (LCF) (Entered: 07/06/2006)
263 TRANSCRIPT of Final Pretrial Conference Proceedings held on 6/22/06 before Judge David G Campbell. Court Reporter: Patricia Lyons. (BAS, ) (Entered: 07/07/2006)
264 MOTION for Leave to File Defendant's Motion in Limine to Exclude Claimants' Damages Testimony and Motion for Expedited Consideration by Lennar Homes of

Case: 2:03-cv-1827 As of: 11/25/2018 05:31 PM MST 20 of 20

07/10/2006 07/10/2006
07/10/2006
07/12/2006 07/12/2006
07/14/2006 07/14/2006 07/18/2006

Arizona Inc.. (Schaffer, Robert) (Entered: 07/10/2006)
265 MOTION in Limine Defendant's Motion in Limine to Exclude Claimants' Damages Testimony by Lennar Homes of Arizona Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E−F)(Schaffer, Robert) (Entered: 07/10/2006)
266 ORDER granting 264 Motion for Leave to File. Plaintiff shall file a response to Defendant's Motion in Limine to Exclude Claimants' Damages Testimony on or before 11:59 p.m. on July 12, 2006. The Court will consider the motion and response on July 13, 2006, without oral argument and without the filing of a reply, and will endeavor to enter an order on July 13, 2006. Signed by Judge David G Campbell on 7−10−06. (DGC)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/10/2006)
267 ORDER. Earlier today, the Court ordered Plaintiff to file a memorandum on Defendant's motion to exclude claimants' testimony on damages by 11:59 p.m. on July 12, 2006, intending to rule on the motion on July 13, 2006. The Court since has leanred that it must be out of state for a family medical matter on July 13, 2006, and must leave the evening of July 12. Plaintiff therefore is directed to file its memorandum no later than 4:30 p.m. on July 12, 2006. The Court will provide its ruling to the parties in the courtrrom at 8:30 a.m. on the morning of trial, July 14, 2006. Signed by Judge David G Campbell on 7−10−06. (DGC) (Entered: 07/10/2006)
268 NOTICE of Settlement by Equal Employment Opportunity Commission (Nutter, Karen) (Entered: 07/12/2006)
269 ORDER. The parties have advised the Court that they have reached a settlement agreement. To allow time for the agreement to be fully documented, the trial in this case will be rescheduled to begin on July 18, 2006, at 9:00 a.m. If the settlement has not been fully documented and submitted to the Court by mid−day on July 17, 2006, the parties shall appear for trial on July 18. If trial commences on July 18, it will be completed by July 28 as currently scheduled, and the parties' trial time will be reduced to reflect the loss of one trial day due to this continuance. Signed by Judge David G Campbell on 7−12−06. (DGC)This is a text−only order; there is no corresponding.pdf document. (Entered: 07/12/2006)
270 Joint MOTION to Approve Consent Judgment by Equal Employment Opportunity Commission, Lennar Homes of Arizona Inc.. (Attachments: # 1 Consent Decree)(Lopez, P) (Entered: 07/14/2006)
271 AMENDEDJoint MOTION to Approve Consent Judgment by Equal Employment Opportunity Commission, Lennar Homes of Arizona Inc.. (Attachments: # 1 Consent Decree)(Lopez, P) (Entered: 07/14/2006)
272 CONSENT JUDGMENT: ORDERED ADJUDGED AND DECREED this decree resolves all claims of the Commission, complainants and all other employees whose interests are represented by the Commission in this matter against Lennar, including but not limited to allegations of back pay, front pay, reinstatement, interest, injunctive relief, attorney's fees and costs; for the duration of this decree, dft will not retaliate in violation of ADEA against any employee because the employee assisted or participated in the investigation of the claims or litigation; within 14 business days of entry of this decree, Lennar shall make a payment in the amount of $425,000.00, half of which will be designated as back pay and half of which will be designated as liquidated damages in resolution of all claims asserted in this case....; Lennar shall pay the employers share of FUTA and FICA on the backpay amount;....Lennar shall report in writing to the Regional Attorney of the Commission's Phoenix District OFfice beginning 6 mos from the date of entry of this decree and thereafter every 6 mos for the duration of the decree; the parties shall each bear their own costs and the Commission and Lennar shall each bear their attorneys' fees incurred as a result of this action through the filing of this decree; the duration of this decree shall be 12 most from its entry; no affirmative obligation of Lennar in this decree shall apply to related entities and affiliates of Lennar (including but not limited to Lennar Corporation, Lennar Communities Developement Inc, Lennar Construction Inc, Lennarstone Marketing Group LLC, Greystone Communities Development Inc, Greystone Construction Inc, Greystone Homes Inc, US Home Corporation, US Home of Arizona Contruction Co or other entity created after 5/30/00). Signed by Judge David G Campbell on 7/17/2006. (LAD) (Entered: 07/18/2006)


[CONTENT] September 2003 | the Phoenix District Office | Denver Office | EEOC | Lennar Homes | the U.S. District Court | Arizona | the Age Discrimination |||  |||  ||| July 2006 ||| one-year | biannual | ADEA | Phoenix | 425,000 | five ||| July 2006 | July 2007 |||  [SUMMARY] In September 2003, the Phoenix District Office and Denver Office of the EEOC filed this lawsuit against Lennar Homes of Arizona, Inc. in the U.S. District Court for the District of Arizona alleging violation of the Age Discrimination in Employment Act.  Complainants allege that their positions as Sales Consultants were terminated, by the defendant, despite their records of high performance. Additionally, complainants allege that the defendant hired younger and less experienced representatives to take their place.

Following extensive discovery and a series of failed motions for partial summary judgment by the defendant, the parties settlted the lawsuit in July 2006 through a consent decree.

The one-year decree, containing an anti-retaliaton clause, required the defendant to: make biannual compliance reports, keep records of compliance, provide complainants with references, post notice of employee rights, provide a training seminar regarding the ADEA to Phoenix employees, and pay $425,000 to be distributed among five individuals.

The decree was entered in July 2006 and scheduled to last until July 2007. No further docket entries exist, so the case is closed.

