Case 4:04-cv-01359-ERW Document 1-1 Filed 10/07/2004 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

ALLSTATE INSURANCE COMPANY )

)

Defendant(s).

)

CIVIL ACTION NO. COMPLAINT JURY TRIAL REQUESTED

NATURE OF THE ACTION This is an action under the Age Discrimination in Employment Act to correct unlawful employment practices on the basis of age and to provide appropriate relief to former employee-agents of Defendant who were adversely affected by Defendant's hiring moratorium of former employee-agents who were subject to Defendant's Preparing for the Future Group Reorganization Plan, and to provide appropriate relief to Joseph Tomec, and other former employee-agents whom Defendant refused to hire because of their age.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"), which incorporates by reference Sections 16(c) and 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§216(c) and 217.

Case 4:04-cv-01359-ERW Document 1-1 Filed 10/07/2004 Page 2 of 6
2. The employment practices alleged to be unlawful were committed throughout the United States of America, including within the jurisdiction of the United States District Court for the Eastern District of Missouri.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant, Allstate Insurance Company, has continuously been an Illinois Corporation doing business in the State of Missouri and the County of St. Louis and the City of St. Louis, and has continuously had at least 20 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11(b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).
CONCILIATION 6. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
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STATEMENT OF CLAIMS 7. Since at least June 2000, the Defendant has engaged in unlawful employment practices at all of its facilities in the United States of America, including its facilities in St. Louis County and the City of St. Louis, Missouri, in violation of Section 4(a) of the ADEA, 29 U.S.C. § 623(a), as described below. Adverse Impact of Defendant's Rehire Moratorium Policy (a) Defendant in June 2000 implemented a policy (hereinafter "rehire moratorium policy") whereby it would not rehire any of its employee-agents who were subject to its Preparing for the Future Group Reorganization Plan for a period that was the longer of (1) one year, or (2) the period of time during which they received severance benefits. (b) Defendant's rehire moratorium policy had an adverse impact on former employee-agents who were members of the protected age group. (c) There was no legitimate business reason or purpose for Defendant's rehire moratorium policy. (d) Defendant's rehire moratorium policy resulted in Defendant's refusal to hire applicants who were former employee-agents, a disproportionate number of whom were 40 years of age or older, and to deter from applying would-be applicants who were former employee-agents, a disproportionate number of whom were 40 years of age or older, in violation of the ADEA.
3

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Disparate Treatment of Tomec and Other Similarly Situated Applicants (e) Defendant refused to rehire Joseph Tomec (then 51) for positions at its call centers in the Chicago, Illinois area, because of his age. (f) Defendant refused to hire other former employee-agents (who were 40 years of age or older) because of their age. 8. The effect of the practices complained of in paragraph 7 (a) - (d) above has been to deprive former employee-agents of equal employment opportunities and otherwise adversely affect their status as applicants or potential applicants for employment because of their age. 9. The effect of the practices complained of in paragraph 7 (e) - (f) above has been to deprive Joseph Tomec and other similarly situated applicants of equal employment opportunities and otherwise adversely affect their status as applicants for employment because of their age. 10. The unlawful employment practices complained of in paragraphs 7(e) - (f) above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:
A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in any other employment practice which discriminates on the basis of age against individuals 40 years of age and older.
4

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B. Order Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
C. Grant a judgment requiring Defendant to pay appropriate back wages in an amount to be determined at trial, and prejudgment interest, to individuals whose wages are being unlawfully withheld as a result of the acts complained of in Paragraphs 7(a) -(d), including, but not limited to Joseph Tomec.
D. Grant a judgment requiring Defendant to pay liquidated damages in an amount equal to their back wages to individuals whose wages are being unlawfully withheld as a result of the acts complained of in Paragraphs 7(e) - (f), including but not limited to Joseph Tomec.
E. Order Defendant to make whole those individuals whose wages are being unlawfully withheld as a result of the acts complained of above, by restraining the continued withholding of amounts owing as back wages with prejudgment interest, in amounts to be determined at trial.
F. Order Defendant to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to rightful place hiring of Joseph Tomec, and all other persons age 40 and over who were subject to Defendant's hiring moratorium policy.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
5

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 </s> Case 4:04-cv-01359-ERW Document 30 Filed 08/23/2005 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

ALLSTATE INSURANCE COMPANY,

)

)

Defendant.

)

Case No. 4:04CV01359 ERW

ORDER

This matter comes before the Court on Plaintiff’s Motion to Bifurcate Trial and
Discovery [doc. # 19], Defendant’s Motion to Amend Case Management Order [doc. # 25], and
Plaintiff’s Motion to Compel Production of Documents and Responses to Interrogatories [doc. #
27].
Plaintiff represents the interests of approximately one hundred former employees of
Defendant. Plaintiff argues that its claim relating to liability is fairly straightforward, and thus
should be bifurcated from the more complex remedial portion of the discovery and trial. Rule
42(b) of the Federal Rules of Civil Procedure (“FRCP”) provides that,
[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim,. . .always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
This Court finds that Plaintiff has not provided a satisfactory explanation detailing how
the intentional discrimination claims could be simultaneously pursued separate from the bifurcated
adverse impact claims. Furthermore, the Court is not convinced that bifurcating discovery will
allow Allstate sufficient access to the aggrieved individuals necessary for it to develop its defenses

1

Case 4:04-cv-01359-ERW Document 30 Filed 08/23/2005 Page 2 of 3
to Plaintiff’s theory of adverse impact. Instead, if Plaintiff believes that a portion of the liability issue can be resolved using the statutory analysis proposed in support of its motion to bifurcate, Plaintiff is free to file a motion for partial summary judgment on that particular issue. Because the Court finds that bifurcation will not aid in the efficiency and convenience of this action, and because Defendant will be prejudiced if the Court orders two discrete discovery periods, this Court holds that the discovery and trial in this matter will not be bifurcated.
FRCP 16 provides that a case management order may be modified “upon a showing of good cause.” Defendants argue that the presumptive limit of 10 depositions is inadequate due to the large number of aggrieved persons disclosed by Plaintiff during initial disclosures. Although the Court finds that the use of other forms of discovery will likely be less expensive and more convenient for the aggrieved persons in this matter, it may be necessary for Defendant to depose more than 10 people. For that reason, the Court will allow Defendant to depose up to 20 people, with leave to request additional depositions if Defendant makes a showing that more depositions are necessary.
Defendant has failed to respond to multiple interrogatories and corresponding document requests. It appears that Defendant’s refusal was predicated on Plaintiff’s pending Motion to Bifurcate. Defendant argued that the discovery requested would not be relevant to the liability phase trial. Because this Court will deny the Motion to Bifurcate, the Court will also grant Plaintiff’s Motion to Compel. Defendant shall provide the discovery as promised in its July 15, 2005 letter. If Plaintiff needs additional time to disclose experts and provide expert reports, Plaintiff may file a motion for an enlargement of time at the appropriate time.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Bifurcate Trial and Discovery [doc. # 19] is DENIED.
2

Case 4:04-cv-01359-ERW Document 30 Filed 08/23/2005 Page 3 of 3 IT IS FURTHER ORDERED that Defendant’s Motion to Amend Case Management
Order [doc. # 25] is GRANTED in part. Defendant shall be permitted to depose up to 20 individuals and is granted leave to file a request to depose additional persons should it become necessary.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Production of Documents and Responses to Interrogatories [doc. # 27] is GRANTED. Defendant shall provide full responses to the interrogatories and document requests no later than September 9, 2005.
Dated this 23rd day of August, 2005. E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE
3

 </s> Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

)

v.

)

)

ALLSTATE INSURANCE COMPANY, )

)

Defendant.

)

)

CIVIL ACTION NO. 4:04CV1359

STIPULATION AND ORDER GOVERNING PROTECTION AND EXCHANGE OF CONFIDENTIAL MATERIAL

This Stipulation and Order Governing Protection and Exchange of Confidential

Material (“Stipulation and Order”) is entered into by and among the United States Equal

Employment Opportunity Commission (“EEOC”), Allstate Insurance Company

(“Allstate”), and their respective counsel. Hereinafter, the EEOC and Allstate, or any of

them, may be referred to individually as a “party” or collectively as the “parties.” The

above-captioned cases may be referred to collectively as the “Litigation.”

1. Scope of Stipulation. This Stipulation and Order will govern the

handling of all documents, information and material produced by the parties through

discovery in the Litigation (“produced material”) and designated as “confidential

material” (Confidential Material”) by the producing party pursuant to this Stipulation and

Order. The provisions of this Stipulation and Order do not apply to documents,

information and material which are lawfully obtained by or come into the possession of a

party or any other person through means other than discovery (“non-produced material”),

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 2 of 16
whether prior or subsequent to the initiation of the Litigation, and regardless of whether such non-produced material, including an identical or non-identical copy thereof, also has been produced in the Litigation and designated as Confidential Material pursuant to this Stipulation and Order. For purposes of this Stipulation and Order, the term “produced materials” includes, but is not limited to, documents, tangible things, transcripts, recordings, photographs, electronic files, databases, and any other written, recorded or graphic matter produced by any party in response to discovery requests made by another party pursuant to the Federal Rules of Civil Procedure or otherwise. This Stipulation and Order also will govern the handling of documents and all other forms of recorded information containing or derived from the information disclosed in any produced material designated as Confidential Material.
2. Confidential Material. Confidential Material will include the following produced material that the producing party marks as confidential in accordance with this Stipulation and Order:
(a) All medical, financial, family, discipline or personnel-related information pertaining to Allstate’s former or current agents or employees, which may be deemed confidential for privacy reasons, including but not limited to:
(i) workers’ compensation documents; (ii) medical records; (iii) documents regarding internal company investigations; (iv) payroll information; (v) wage information; (vi) expense reimbursement information;

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 3 of 16
(vii) other financial information, including but not limited to corporate or individual tax returns;
(viii) other proprietary business information, including but not limited to lists of existing or potential clients and customers, marketing materials and business plans; and
(ix) any EEOC investigative files. (b) All documents which contain information of a proprietary, confidential or sensitive business nature, including, but not limited to:
(i) any financial information or data (whether electronic or otherwise) pertaining to the costs or projected costs of operating an Allstate agency, Allstate’s agency system, Allstate’s insurance and other businesses, or any division of Allstate, or the revenue, sales, or profits generated by an Allstate agency, including but not limited to labor costs and operating and other expenses.
(ii) any data (whether electronic or otherwise) reflecting payroll, reimbursement or other payment information and agent or employee numbers or other identifiers; and
(iii) information regarding the operation of Allstate’s agency system, its insurance business, or any Allstate division or business, including but not limited to sales plans or procedures, agent or employee goals, operations or training manuals, product selection or merchandising, customer relations or legal issues, in the case of documents that are not otherwise privileged or protected from disclosure.

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 4 of 16
(c) Non-produced material shall not be deemed Confidential Material and is not otherwise subject to the provisions of this Stipulation and Order, even though other copies of such material may be produced in the Litigation by one or more parties, provided that such material is not obtained by fraud, deceit, theft, in contravention of an agreement regarding its confidentiality or restricting its distribution, or by some other improper means. Non-produced material shall remain subject to any confidentiality agreement, non-disclosure agreement, or any other restriction on its disclosure identified on the document or information or imposed as a condition of its initial disclosure to the parties or the source(s) from which the document was received. The parties acknowledge that there may be an obligation to preserve the confidentiality of certain trade secrets and other information deemed to be proprietary and confidential that is not otherwise lawfully available to the public. 3. Designation of Produced Material as Confidential Material.
(a) With respect to produced material that a party or its counsel may transmit directly to counsel for the other party, the following designations will apply:
(i) The nature and type of the producing party’s electronic data and all information contained therein will be deemed Confidential Material; and
(ii) Any documents or files containing information as set forth in paragraph 2 above shall be marked or designated as Confidential Material by the producing party in accordance with the provisions of this

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 5 of 16
paragraph 3. (b) With respect to produced material made available for inspection and copying at any location, the producing party will be entitled to mark or designate as Confidential Material any or all portions of the produced material at the time the other party requests copies of such produced material. (c) A party may mark or otherwise designate as “highly sensitive” only those portions or parts of Confidential Material which, if revealed beyond counsel or other persons identified in paragraph 5(d) below, would cause irreparable injury to the producing party (“Highly Sensitive Material”). (d) Documents or pages that a party wishes to mark or otherwise designate as Confidential Material or Highly Sensitive Material will bear a stamp on the face of the document so indicating, except as provided by paragraphs 3(f) and 3(g). (e) The failure of the producing party to mark or designate any produced material as Confidential Material or Highly Sensitive Material at the time of production shall not preclude that party from designating such produced material as Confidential Material or Highly Sensitive Material at a later date. The parties agree that:
(i) this Stipulation and Order will govern the handling of the material upon receipt of written notice that produced material not previously marked or designated as Confidential material is being so designated;
(ii) the producing party shall undertake all reasonable steps

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 6 of 16
necessary to protect the confidentiality of such newly-designated material, including, but not limited to: (A) providing prompt written notice of the designation to all other parties; (B) producing additional copies of the produced material marked in accordance with paragraph 3(d) of this Stipulation and Order; and (C) identifying pleadings and other documents that should be re-filed under seal pursuant to paragraph 8(b)(i) of this Stipulation and Order; and
(iii) subject to the provisions of paragraph 8(b), and to the extent any produced material is used in this Litigation prior to designation as Confidential Material (e.g., filed with the Court not under seal) or otherwise disclosed to any person prior to having been marked or designated as Confidential Material, the non-designating party shall take reasonable steps to protect the confidentiality of the material, including, if applicable, (A) refiling under seal pleadings and other documents identified by the producing party, (B) designating portions of deposition transcripts identified by the producing party as confidential, and (C) in the event of disclosure of produced material to any person prior to designation, notifying any person to whom the material was disclosed and requesting that such person execute an Undertaking in accordance with paragraph 6 of this Stipulation and Order.
The parties agree that any action taken with respect to or use of produced material prior to its having been designated as Confidential Material or Highly Sensitive Material shall not be deemed a violation of

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 7 of 16
this Stipulation and Order. (f) If copies of corporate or personal income tax returns are produced by any
party, then all portions of such income tax returns will be deemed to be confidential and need not be stamped or otherwise indicate that they are confidential and protected by this order. (g) If copies of medical records are produced by any party, then all portions of such medical records will be deemed to be confidential and need not be stamped or otherwise indicate that they are confidential and protected by this order. 4. Challenging Designation of Produced Material as Confidential Material. (a) Any party reserves the right to challenge the designation pursuant to paragraph 3 of any produced material as Confidential Material or Highly Sensitive Material. Any party may do so notwithstanding that such material was previously treated by that party as Confidential Material or Highly Sensitive Material. (b) In the event any party challenges the designation of produced material as Confidential Material or Highly Sensitive Material, the parties will confer in good faith in order to resolve the issues surrounding the challenge. In the event the parties are unable to resolve their dispute after conferring in good faith for a reasonable period of time, the parties (or any of them) may submit the matter to the Court, which will have jurisdiction over all parties for purposes of resolving any challenge under this Stipulation and Order. In such event, the

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 8 of 16
producing party or parties shall have the burden of establishing that the produced material properly was designated as Confidential Material or Highly Sensitive Material. Unless the parties otherwise agree, any produced material designated as Confidential Material or Highly Sensitive Material shall be maintained as confidential in accordance with the provisions of this Stipulation and Order during the period that the parties are conferring and, if the matter is submitted to the Court pursuant to this paragraph 4(b), until entry of a protective order or other ruling with respect to such designation.
(c) By entering into this Stipulation and Order, none of the parties shall in any way be deemed limited or prejudiced with respect to any challenge or request that the Court overrule or modify any designation of produced material as Confidential Material or Highly Sensitive Material. 5. Disclosure of Confidential Material
(a) Confidential Material, including all copies, excerpts and summaries thereof, and information contained therein, will be used solely for purposes of the Litigation and will not be used for any other purposes, including, without limitation, any business, commercial, labor-organizing or personal purpose, or any other judicial or administrative proceeding.
(b) Except as may be required by law, including an order, subpoena or similar directive issued by a court, legislative body or administrative agency, or as otherwise permitted by this Stipulation and Order, Confidential Material, including all copies, excerpts and summaries thereof, and information contained therein, may not be disclosed or publicized without the express prior written

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 9 of 16
consent of counsel for the disclosing party to any non-party including, without limitation, the media, any organization or association of current or former Allstate agents or employees, any labor organization, any competitor of Allstate, or any person or entity not identified in paragraph 5(c).
(c) Confidential Material and information contained therein may be disclosed, summarized, described, revealed, or otherwise made available in whole or in part only in accordance with the terms of this Stipulation and Order and only to the following persons:
(i) any employees or representatives of the EEOC; (ii) any individual on whose behalf the EEOC has brought the Litigation; (iii) legal counsel for any individual on whose behalf the EEOC has brought the litigation, but only for the purpose of providing advice in any of the following circumstances: (1) testifying at a deposition, hearing or trial, or in preparation for any such testimony; (2) regarding documents contained in the individual's personnel file; (3) regarding documents which have previously been provided to the individual; (4) regarding documents which were prepared by the individual; (5) regarding documents which contain information that relates to that individual; or (6) providing advice with respect to whether or not the individual should sign a release of claims in connection with this litigation. (iv) counsel for the parties including the employees of such firms or the EEOC to the extent necessary to assist counsel in this

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 10 of 16
Litigation; (v) the court, including its personnel and authorized
representatives; (vi) photocopy, document management, imaging and database
service providers retained by one or more of the parties; (vii) expert witnesses (who will not include any member of the
media, any representative of an organization or association of current or former Allstate agents and/or employees, any representative of a bona fide labor organization, or any current employee of any financial services company or insurance company which is a competitor of Allstate); and
(viii) other witnesses, as appropriate, including for purposes of providing testimony at deposition, hearing or trial, and in preparation for such testimony. (d) Notwithstanding the above, Highly Sensitive Material may not be disclosed, summarized, described, revealed or otherwise made available in whole or in part to any person identified in subparagraph (c)(i)-(ii) above, unless such person also falls into one or more of the categories identified in subparagraph (c)(iii)-(viii) above. 6. Notice of Stipulation and Order; Statement of Knowledge and Agreement to be Bound. (a) Every person to whom Confidential Material or information contained therein is to be disclosed, summarized, described, characterized, or otherwise communicated or made available in whole or in part will first be

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 11 of 16
advised that the material or information is being disclosed pursuant and subject to the terms of this Stipulation and Order.
(b) Furthermore, persons identified in paragraph 5(c) above to whom disclosure of Confidential Material is made will be governed by the terms of and will confirm their understanding of their obligations under this Stipulation and Order by signing a copy of the written undertaking annexed hereto as Exhibit A (the “Undertaking”). To this end, the party making the disclosure will be required to obtain the signed Undertaking prior to disclosure, and any failure to make or obtain the same will be a material violation of this Stipulation and Order. When testifying expert witness signs a copy of the Undertaking, the party obtaining the signature will provide all other parties to this Stipulation and Order with copies of the same at the time of expert witness disclosures. 7. Unauthorized Disclosure of Confidential Information. In the event of disclosure of any Confidential Material or information contained therein to a person not authorized for access to such material in accordance with this Stipulation and Order, the party responsible for having made, and any party with knowledge of, such disclosure will inform the party that has designated the produced material as Confidential Material of the nature and circumstances of the unauthorized disclosure immediately after the revealing party becomes aware of such disclosure. The responsible party also will promptly take all reasonable measures to ensure that no further or greater unauthorized disclosure or use of such Confidential Material or information contained therein is made. All parties will cooperate in good faith in such efforts. 8. Use of Confidential Material.

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 12 of 16
(a) Nothing in this Stipulation and Order will prevent the use of any produced material which has been designated as Confidential Material or Highly Sensitive Material in this Litigation, except as expressly sated in this Stipulation and Order. Such use may include, but shall not be limited to, introducing and marking Confidential Material and Highly Sensitive Material as a deposition exhibit for the purpose of authentication or otherwise, as an exhibit in support of or in opposition to any motion, and as a trial exhibit or evidence.
(b) Notwithstanding the foregoing, the parties agree as follows: (i) Confidential Material, or excerpts therefrom, shall be filed
with the Court in a sealed envelope with the words, “Confidential Materials Sealed Pursuant to Court Order,” displayed prominently on the outside of the envelope; provided, however, pleadings or other court filings that make reference to Confidential Materials, but do not quote substantially verbatim therefrom, need not be filed under seal.
(ii) At the option of any party, Confidential Material may be filed with the Court not under seal provided that either: (A) if the Confidential Material related to one or more individual agents and/or employees, such persons consent that the filing be made not under seal; or (B) Confidential Material is redacted to protect the privacy interests of agents and/or employees (e.g., redaction of names and other identifying information). 9. Modification of Stipulation and Order. In the event any party seeks modification of this Stipulation and Order, whether to narrow or expand the terms

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 13 of 16
contained herein, or otherwise, the parties first shall confer in good faith in an attempt to resolve the issues pertaining to such modification. If the parties are unable to reach a mutually-acceptable resolution with respect to any proposed modification of this Stipulation and Order within a reasonable period of time, the parties will submit the matter to the Court.
10. Duration of Stipulation and Order: Return of Confidential Material. (a) This Stipulation and Order shall remain in effect and will continue
to be binding after the conclusion of the Litigation, and shall inure to the benefit of the parties and any of their respective heirs, legal representatives, officers, directors, shareholders, partners, agents, attorneys, employees, successors, and assigns.
(b) Within forty-five (45) days after conclusion of the Litigation (i.e., after the time for all appeals has expired and all judgments or court-ordered obligations such as settlements and consent decrees, if any, have been satisfied), all parties and other persons in possession of produced material or information contained therein will dispose of all such material by returning such material to the producing party’s counsel, and certifying that fact by affidavit or declaration.
(c) At the conclusion of the Litigation, and pursuant to a request by counsel of record for the party filing such document, the Clerk will return documents filed under seal to counsel or, at the request of counsel, destroy such documents. 11. Termination of Access. In the event that any party or person ceases to be engaged in the conduct of the Litigation, such party or person shall no longer be afforded

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 14 of 16
access to Confidential Material or information contained therein and all copies of Confidential Material in the possession or control of such party or person must be returned in accordance with the terms of paragraph 10(b) above, except that such return will take place as soon as practicable after such party or person ceases to be engaged in the conduct of the Litigation. Unless otherwise agreed by the parties or ordered by the Court, the provisions of this Stipulation and Order will remain in full force and effect as to any party or other person who previously had access to any Confidential Material or information contained therein.
12. Limits of Stipulation and Order. Producing Confidential Material or entering into, agreeing to, or otherwise complying with the terms of this Stipulation and Order will not:
(a) operate as an admission by any party that any particular Confidential Material contains or reflects proprietary information or any other type of confidential information;
(b) prevent the parties to this Stipulation and Order from agreeing to alter or waive in writing the provisions or protections provided for herein with respect to any Confidential Material or information contained therein;
(c) operate as an admission that any material is relevant to the Litigation;
(d) prejudice in any way the right of any party to object to any discovery request seeking production of material it considers not subject to discovery;
(e) prejudice in any way any party’s right to apply to the Court for

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 15 of 16
protective orders; or (f) prejudice in any way any party’s right to argue that judicial
hearings or trials, including any portions thereof in which any Confidential Material, including Highly Sensitive Material, may be revealed, should or should not be open to the public. 13. No Waiver. By entering into this Stipulation and Order, no party has waived its right to object to any request for the production or disclosure of documents, information, tangible things, testimony or any other requested matter. The right to object includes the right to assert an objection on the basis that the request calls for the disclosure of confidential information that a party does not believe can be adequately protected by this Stipulation and Order. 14. Enforcement and Remedies.
(a) The provisions of this Stipulation and Order will be enforceable by the Court. In the event of a finding by the Court that this Stipulation and Order has been breached, the court may order any relief that it deems fair and equitable. The EEOC does not agree to the award of monetary damages, monetary penalty, or other monetary relief against it, nor does the EEOC waive any defense to such an award. The EEOC reserves its right to appeal any order that may be entered against it under the terms of this protective order.
(b) The Court will have continuing jurisdiction to enforce this Stipulation and Order throughout the Litigation and following its conclusion. The parties agree that any such enforcement proceedings will, subject to the schedule and approval of the Court, be determined on an expedited basis.

Case 4:04-cv-01359-ERW Document 39 Filed 01/23/2006 Page 16 of 16
Exhibit A UNDERTAKING
I have read the Stipulation and Order dated January 23, 2006 (“Stipulation and Order”), entered into by and among the parties and their counsel in the matter of Equal Employment Opportunity Commission v. Allstate Insurance Company, Civil No. 4:04CV1359, governing the handling of confidential material and information produced through discovery in the above-reference matters.
I understand the terms of the Stipulation and Order and agree to be fully bound by them.
I hereby submit to the jurisdiction of the United States District Court for the Eastern District of Missouri for purposes of enforcement of the Stipulation and Order. Dated: _______________ Signature:__________________________________ Print Name: __________________________________ Address: __________________________________
__________________________________ So Ordered this 23rd day of January, 2006.
______________________________ E. RICHARD WEBBER U.S. DISTRICT JUDGE

 </s> Case 4:04-cv-01359-ERW Document 68 Filed 09/08/2006 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION

)

Plaintiff,

)

)

VS.

)

)

ALLSTATE INSURANCE COMPANY,

)

)

Defendant

)

Case No. 4:04CV01359 ERW

ORDER

Currently befure the Court are the following motions (1) Defendant's Motion to

Compel Responses to Interrogatories [doc. #58]; (2) Defendant's Motion to Modify the Case

Management Order [doc. #60-1]. A hearing was held on September 7, 2006, and the Court heard

argwnents from the parties on the Motions.

After Considering the Issues, the court will grant Defendant's motion to compel.

Plaintiff shall have 30 days to provide all remaining answers to interrogatories. Plaintiff's

objections to providing e-mail addresses is overruled, as is Plaintiff's objection to information

regarding claimants' sale oftheir books ofbusiness. Plaintiff will provide information regarding

the sale as well as the terms of the agreement not to compete.

Accordingly, IT IS HEREBY ORDERED that Defendant's motion to Compel is GRANTED and Plaintiff's objections are OVERRULED. Plaintiff shall have 30 days to respond to all interrogatories.

Case 4:04-cv-01359-ERW Document 68 Filed 09/08/2006 Page 2 of 2
IT IS FURTHER ORDERED that the Defendant's motion to modifY the Case Management order is held in abeyance pending parties filing a Joint Proposed Amended Case Management Order no later than September 25, 2006.
IT IS FURTHER ORDERED that the November 6,2006 trial setting is VACATED. The Court expects to rule on Plaintiff's motion for Summary Judgment [doc. #42] and Defendant's motion for Summary Judgment [doc. #52] in early October.
Dated this 8th day of September, 2006.
E:~~~Q.
E. RICHARD WEBBER UN1TED STATES DISTRICT JUDGE

 </s> Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 1 of 10
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT , OPPORTUNITY COMMISSION,
Plaintiff(s),
vs.
ALLSTATE INSURANCE CO.,
Defendant(s).

)

)

)

)

)

Case No. 4:04CV01359 ERW

)

)

)

)

MEMORANDUM AND ORDER This matter comes before the Court on Defendant Allstate Insurance Company’s Motion to Certify for Interlocutory Appeal [doc. #73]. I. PROCEDURAL BACKGROUND The Plaintiff, Equal Employment Opportunity Commission (“Plaintiff”), sued the Defendant, Allstate Insurance Company (“Defendant”), for alleged violations of the Age Discrimination in employment Act of 1967 (“ADEA”), 29 U.S.C. § 626(b). Plaintiff alleged that Defendant’s rehire policy associated with the Preparing for the Future Group Reorganization Plan (“Reorganization Plan”), had an adverse impact on former employee-agents who were members of the protected age group, and that these former employee-agents were barred from rehire. Pl. Comp., 3-4. Plaintiff further alleged that the reasons for the rehire policy articulated by the Defendant were not reasonable. Id. Defendant denies these allegations. Prior to seeking relief in federal court, the Plaintiff attempted conciliation in accordance with the terms of the ADEA, 29 U.S.C. § 626(b). Following discovery, both parties filed motions for summary judgment. On October 19, 2006, this Court partially granted Plaintiff’s Motion for Partial Summary Judgment,

1

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 2 of 10
and denied Defendant’s Motion for Partial Summary Judgment. Defendant now seeks to amend that order to certify the following questions of law for interlocutory appeal: (1) Whether a disparate impact claim is cognizable under the ADEA in the context of a rehire case; and (2) whether the two approaches to disparate impact proffered by EEOC, and adopted by the Court, may establish disparate impact as a matter of law. II. FACTUAL BACKGROUND
Prior to November, 1999, the Defendant had a business structure which included the employment of approximately 6,300 employee-agents, who sold Allstate property and casualty insurance. These agents were employed primarily under either a R-830 or R-1500 employment contract. In November, 1999, the Defendant announced its Reorganization Plan, which would terminate the employment contracts of its employee-agents, effective June 30, 2000.1 Concurrent with the announcement of the Reorganization Plan, the Defendant gave each employee-agent four options upon termination of their contracts. The first two options allowed an employee-agent to become an Exclusive Agent (“independent contractor agent”), the third provided enhanced severance pay on condition of signing a release of legal claims against the Defendant, and the fourth provided base severance pay without requiring the employee agent to sign a release of liability. Under the first two options the employee agent would receive a bonus payment of at least $5,000 and would continue working for the Defendant as an independent contractor agent. One of the conditions of entering a new contract with the Defendant as an independent contractor was that the former employee agent would be required to sign a release of liability. Former employee-agents were given until June 1, 2000, to choose between the four options.
1There were a few exceptions that are not relevant to this lawsuit. 2

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 3 of 10
In association with the Reorganization Plan, the Defendant also adopted a rehire policy that was implemented in September, 2000. The policy provided that former employee-agents, who were subject to the Reorganization Plan, would be ineligible for rehire for a period of one year after their termination, or after all payments of any severance benefits had been received. This prevented any former employee-agent from being rehired in a non agent position, as all employee-agent positions had been eliminated, for a period of at least one year and at longest two years from the date of termination, in most cases June 30, 2000. Some former employee-agents were rehired by the Defendant, between their termination date on June 30, 2000, and the implementation of the rehire policy on September 26, 2000. The rehire policy was developed by Karleen Zuzich, who is Assistant Vice President of Human Resources for the Defendant, and was adopted and implemented by the Defendant. The policy was distributed to the Defendant’s regional human resources managers, but the policy was not communicated generally to former employee-agents. This policy applied to all former employee-agents, regardless of age. III. LEGAL STANDARD
Under 28 U.S.C. § 1292(b), [w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. This provision sets forth three requirements that must be met before a district court opinion may be certified for interlocutory appeal. White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994). Specifically, “the district court must be of the opinion that (1) the order involves a controlling question of law; (2) there is substantial grounds for difference of opinion; and (3) certification will materially advance the ultimate termination of the litigation.” Id. See also SBL v. Evans, 80 F.3d 307, 309-
3

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 4 of 10
310 (8th Cir. 1996). The Eighth Circuit has also emphasized that “it is the policy of the courts to discourage piecemeal appeals because most often such appeals result in additional burdens on both the court and the litigants.” White, 43 F.3d at 376. see also Control Data Corp. v. International Business Machines Corp., 421 F.2d 323, 325 (8th Cir. 1970) (“It has, of course, long been the policy of the courts to discourage piecemeal appeals. . ..”). In accordance with the policy of discouraging interlocutory appeals, “§ 1292(b) should and will be used only in exceptional cases where a decision on appeal may avoid protracted and expensive litigation. . ..” White, 43 F.3d at 376. In reaching this determination, the burden is on the movant “to demonstrate that the case is an exceptional one in which immediate appeal is warranted.” Id. It is within the trial court’s discretion to grant or deny a motion for interlocutory appeal, and also within the discretion of the court of appeals to certify the appeal. Id. A district court’s grant of interlocutory appeal must be in writing, and must state the basis for the interlocutory appeal. Federal Deposit Ins. Corp. v. First Nat. Bank of Waukesha, Wis. 604 F.Supp. 616, 620 (D. Wis. 1985) (“he shall so state in writing in such order.”). Furthermore, the application for appeal “shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C. § 1292(b). III. DISCUSSION
The Defendant argues that the two issues decided in this Court’s order dated October 19, 2006, which granted in part Plaintiff’s motion for partial summary judgment, are controlling questions of law. Def. Memo. in Support of Mot. to Certify for Interlocutory Appeal, 1. The first controlling question of law is this Court’s determination that the Plaintiff’s challenge to Defendant’s rehire rule falls under 29 U.S.C. § 623(a)(2), rather than § 623(a)(1), allowing a disparate impact case to go forward. The second question this Court decided, was what method
4

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 5 of 10
to use in determining whether there was a disparate impact. The Defendant argues that both of these are controlling questions of law, and Plaintiff does not disagree with this assessment. Pl. Memo. in Opp. to Def. Mot. to Certify for Interlocutory Appeal, 2. However, the parties do disagree over whether there is substantial grounds for a difference of opinion, and whether an interlocutory appeal would materially advance the ultimate termination of the litigation.
A. Controlling Question of Law Although the parties do not dispute that this Court’s order, partially granting Plaintiff’s motion for summary judgment and denying Defendant’s motion for summary judgment, contained two controlling questions of law, the Eighth Circuit requires this court to state more than a mere conclusion. White, 43 F.3d at 377 (“strongly suggesting to district judges the advisability of stating more than a bare finding that the statutory requirements of § 1292(b) have been met.” (quoting Isra Fruit Ltd. v. Agrexco Agric Export Co., 804 F.2d 24, 25 (2nd Cir. 1986)). First, the question for appeal must be a legal one, not one that is within the discretion of the trial court. Id. (“[T]his discovery ruling is committed to the district court’s discretion, and an allegation of abuse does not create a legal issue.”); see also Control Data Corp. v. International Business Machines Corp., 421 F.2d 323, 326 (8th Cir. 1970) (“Such a discretionary ruling is not one that constitutes a controlling question of law. . ..”). Furthermore, even if a question is one of law, and not within the discretion of the trial court, it must be more than just determinative of the case at hand, rather “a question is controlling only if it may contribute to the determination, at an early stage, of a wide spectrum of cases.” FDIC, 604 F.Supp. at 620. This Court held, in its October 19, 2006 order, that no material issue of fact existed regarding Defendant’s rehire policy, and that such policy was subject to 28 U.S.C. § 623(a)(2), and further that the methods used by Plaintiff were sufficient to show a disparate impact. Case
5

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 6 of 10
No. 4:04cv001359, Doc.#70. In contrast to the case in White, the order Defendants seek to appeal was a summary judgment order, which is granted when one party is entitled to judgment as a matter of law, and is reviewed de novo by the court of appeals; it is not a question of discretion. Fed. R. Civ. P. 56(c); Jacob-Mua v. Veneman, 289 F.3d 517, 520 (8th Cir. 2002) (“The district court’s grant of summary judgment is reviewed de novo.”); See also White, 43 F.3d at 377. Furthermore, the questions decided by this court may contribute to the determination of a wide spectrum of cases. FDIC, 604 F.Supp. at 620. The determination that a rehire policy falls under § 623(a)(2) of the ADEA, and therefore is subject to a disparate impact analysis, will effect the determination of future cases challenging rehire policies. The rulings made by this Court’s order are not limited in impact to the case at bar. Thus, although an interlocutory appeal is not appropriate solely because the case involved a novel question of law, it is appropriate in a case such as that before this Court, where the Court’s decision will impact future cases. Furthermore, the questions presented for appeal, if overruled, would terminate the action. See e.g. Klilnghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauri in Amministrazione Straordinaria, 921 F.2d 21, 24 (2nd Cir. 1990) (“[I]t is clear that a question of law is ‘controlling’ if reversal of the district court’s order would terminate the action.”). These are not preliminmary questions, that “may evaporate in the course of further proceedings, SCM Corp. v. Xerox Corp., 474 F.Supp. 589, 594 (D. Conn. 1979), but rather are controlling of whether the case goes forward, and therefore the first requirement has been satisfied.
B. Substantial Grounds for Difference of Opinion The Defendant spent a great deal of time, both in its brief and in oral arguments, arguing why this Court’s prior decision was incorrect. The Court is not persuaded by this argument, nor is the Court persuaded that solely because this was a question of first impression in the Eighth
6

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 7 of 10
Circuit, is the requirement that there be substantial grounds for difference of opinion satisfied. That the Defendant disagreed with a ruling adverse to its interest is unremarkable. Furthermore, a lack of precedent on a legal question, will not alone, satisfy the requirement. White, 43 F.3d 378 (“However, substantial ground for difference of opinion does not exist merely because there is a dearth of cases.”). See also FDIC, 604 F.Supp. at 620 (“[T]he mere fact that there is a lack of authority on a disputed issue does not necessarily establish some substantial ground for a difference of opinion under the statute.”). Rather, the court in White, held that where there was a closely analogous body of law that had been unanimously decided, there was not a substantial ground for a difference of opinion. 43 F.3d at 378. In addition to a lack of precedent being insufficient to satisfy the second requirement, the Wisconsin court, in FDIC, also noted that § 1292(b) is “not intended merely to provide an avenue for review of difficult rulings in hard cases.” 604 F.Supp. at 620. While it is clear that a lack of precedent alone is insufficient for a finding of a substantial ground for a difference of opinion, there is little case law which discusses when such a ground does exist,2 rather the focus of the cases is on the first and last requirements. See e.g. Beck v. Communications Workers of America, 468 F.Supp. 93, 96 (D. Md. 1979) (“This court is not of the opinion that this is an issue which requires application of the statute: it involves neither a ‘controlling question of law,’ nor would an interlocutory appeal ‘materially advance the ultimate termination of (this) litigation.’”).
In the case at bar there are a number of factors, that when looked at as a whole, provide a basis for finding substantial grounds for a difference of opinion. First, the Court notes that the most recent Supreme Court decision on the question of disparate impact cases under the ADEA
2The parties in the briefs cite to no cases which define the second requirement in positive terms.
7

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 8 of 10
has been subject to little review by the lower courts. Smith v. City of Jackson, Mississippi, 544 U.S. 228 (2005). The Court in City of Jackson, held that a disparate impact claim is cognizable under 28 U.S.C § 623(a)(2), but did not address what cases that encompasses, nor did it address what method was to be used in determining whether a disparate impact exists. Id. at 228. Secondly, the Court notes the uniqueness of a rehire policy. On its face it is illogical to treat this as a hiring case, when the rehire policy effected only a small subset of individuals applying for positions with the Defendant, however, it does not squarely fit within the language of § 623(a)(2) which by its terms applies to employees. Thirdly, the Court notes the lack of precedent on this question, as well as a lack of analogous cases in either the ADEA or Title VII context. Although, a lack of precedent alone is insufficient to support an interlocutory appeal, the Court finds that this is a factor which may be considered in determining whether there is a substantial ground for difference of opinion. These factors support a finding that there is a substantial ground for difference of opinion on the questions decided in this Court’s October 19, 2006 order, thereby satisfying the second requirement under § 1292(b).
C. Materially advance the Ultimate Termination of the Litigation The third requirement necessitates a showing that the case at bar is an extraordinary case where “the decision of an interlocutory appeal might avoid protracted and expensive litigation.” U.S. ex rel. Hollander v. Clay, 420 F.Supp. 853, 859 (D. D.C. 1976) (citing the legislative history of 28 U.S.C. 1292(b)). In reaching this determination “the district court is well-advised to review the procedural and substantive status of the case with respect to the progress or completion of discovery, the disposition of pretrial motions, the extent of the parties’ preparation for trial, and the nature and scope of the requested relief.” FDIC, 604 F.Supp. 616, 620. Furthermore,
8

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 9 of 10
“whether an immediate appeal may materially advance the ultimate termination of the litigation can properly turn on pragmatic considerations.” SCM Corp., 474 F.Supp. at 594.
The most persuasive argument to this Court, is that the ensuing litigation to determine liability and damages for each of one hundred claimants will be complex and lengthy. There are one hundred claimants, and this Court has determined that the trial of no more than six claimants at a time is appropriate. The case could continue for over a year in order to complete the trials for each claimant. This Court finds that an immediate appeal may advance the ultimate termination of the litigation because a decision by the Court of Appeals upholding this Court’s decision may encourage the parties to settle after the trial of only a few claimants, rather than continuing with the trial of all claimants in order to preserve the appealability of the questions at issue in this order. Furthermore, the Defendant requested, and this Court ordered, additional depositions to be taken, prior to the first trial in this matter, with the possibility that future depositions be allowed prior to future trials of the remaining claimants. Due to the lengthy process that is before this Court, it is appropriate to certify the controlling questions of law for immediate appeal, so that the case may go forward with the knowledge of both parties that the questions were correctly decided.3 IV. CONCLUSION
The three requirements for an interlocutory appeal under 28 U.S.C. § 1292(b) have been met in this case, and therefore this Court, in its discretion, certifies its October 19, 2006 order for
3The Court notes that the Plaintiff argues that appeal at this point will not materially advance the litigation because of the possibility of multiple interlocutory appeals. This argument is based on the fact that the October 19, 2006 order did not decide whether the Defendant had a reasonable basis for its rehire policy, thereby shielding it from liability. The Plaintiff argues that Defendant may later seek to appeal an adverse decision on that question. However, that is a question that is to be decided by the jury, and does not negate the Court’s reasoning that an appeal at this time will materially advance the termination of the litigation.
9

Case 4:04-cv-01359-ERW Document 77 Filed 01/04/2007 Page 10 of 10 immediate appeal. The Court believes that the Defendant has met its burden of proving that this is such an exceptional case where an interlocutory appeal of the controlling legal questions may materially advance the ultimate termination of the litigation. Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Interlocutory Appeal [doc. #73] is GRANTED. This Court’s October 19, 2006 order is amended to certify the following questions for immediate appeal:
1. Does a challenge to a rehire policy fall under 29 U.S.C. § 623(a)(2), allowing a disparate impact case to go forward?
2. Was the method of determining a disparate impact used by this Court sufficient to show a disparate impact as a matter of law?
IT IS FURTHER ORDERED that the current action is stayed, pending the outcome of the appeal.
Dated this 4th Day of January, 2006.
__________________________________________ E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE
10

 </s> Case 4:04-cv-01359-ERW Document 80 Filed 03/14/2007
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Page 1 of 1

No: 07-8002

Allstate Insurance Company,

Petitioner

v.

Equal Employment Opportunity Commission,

Respondent

______________________________________________________________________________
Appeal from Eastern District of Missouri (4:04-cv-01359-ERW)
______________________________________________________________________________
ORDER

The petition for permission of Allstate Insurance Company to take an interlocutory appeal pursuant to 28 U.S.C. Section 1292(b) has been considered by the court and is granted. The clerk will regularly docket the appeal.
March 14, 2007

Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________
/s/ Michael E. Gans

 </s> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff(s),

)

)

vs.

)

)

ALLSTATE INSURANCE COMPANY,

)

)

Defendant(s).

)

Case No. 4:04CV01359 ERW

MEMORANDUM AND ORDER This case comes before the Court on Plaintiff’s Motion for Partial Summary Judgment as to Liability [doc. #42] and Defendant’s Motion for Partial Summary Judgment [doc. #52]. I. PROCEDURAL BACKGROUND The Plaintiff, Equal Employment Opportunity Commission (“Plaintiff”), is suing the Defendant, Allstate Insurance Company (“Defendant”), for alleged violations of the Age Discrimination in employment Act of 1967 (“ADEA”), 29 U.S.C. § 626(b). Plaintiff alleges that Defendant’s rehire policy associated with the Preparing for the Future Group Reorganization Plan (“Reorganization Plan”), had an adverse impact on former employee-agents who were members of the protected age group, and that these former employee-agents were barred from rehire. Pl. Comp., 3-4. Plaintiff further alleges the reasons for the rehire policy articulated by the Defendant were not reasonable. Id. Defendant denies these allegations. Prior to seeking relief in federal court, the Plaintiff attempted conciliation in accordance with the terms of the ADEA, 29 U.S.C. § 626(b). Following discovery, both parties filed motions for summary judgment.

1

II. BACKGROUND FACTS1 Prior to November, 1999, the Defendant had a business structure which included the
employment of approximately 6,300 employee-agents, who sold Allstate property and casualty insurance. These agents were employed primarily under either a R-830 or R-1500 employment contract. In November, 1999, the Defendant announced its Reorganization Plan, which would terminate the employment contracts of its employee-agents, effective June 30, 2000.2 Concurrent with the announcement of the Reorganization Plan, the Defendant gave each employee-agent four options upon termination of their contracts. The first two options allowed an employee-agent to become an Exclusive Agent (referred to as an independent contractor agent), the third provided enhanced severance pay on condition of signing a release of legal claims against the Defendant, and the fourth provided base severance pay without requiring the employee agent to sign a release of liability. Under the first two options the employee agent would receive a bonus payment of at least $5,000 and would continue working for the Defendant as an independent contractor agent. One of the conditions of entering a new contract with the Defendant as an independent contractor was that the former employee agent would be required to sign a release of liability. Former employee-agents were given until June 1, 2000, to choose between the four options.
In association with their Reorganization Plan, the Defendant also adopted a rehire policy that was implemented in September, 2000. The policy provided that former employee-agents, who were subject to the Reorganization Plan, would be ineligible for rehire for a period of one year after their termination, or after all payments of any severance benefits had been received.
1The Court’s recitation of the facts is taken from Plaintiff’s Statement of Uncontroverted Material Facts and Defendant’s Opposition to Plaintiff’s Statement of Uncontroverted Material Facts. The Court notes where the parties disagree over the facts.
2There were a few exceptions that are not relevant to this lawsuit. 2

This prevented any former employee-agent from being rehired in a non agent position, as all employee-agent positions had been eliminated, for a period of at least one year and at longest two years from the date of termination, in most cases June 30, 2000. Some former employee-agents were rehired by the Defendant, between their termination date on June 30, 2000, and the implementation of the rehire policy on September 26, 2000. The rehire policy was developed and implemented by Karleen Zuzich, who is Assistant Vice President for Human Resources at Allstate Insurance Company, and was adopted by Allstate Insurance Company. The policy was distributed to the Defendant’s regional human resources managers, but the policy was not communicated generally to former employee-agents. This policy applied to all former employeeagents, regardless of age. II. STANDING
Although neither party has raised the question, this Court is obligated to examine whether the Plaintiff had standing, within the meaning of Article III of the United States Constitution. Juidice v. Vail, 430 U.S. 327, 331 (1977) (“Although raised by neither of the parties, we are first obliged to examine the standing of appellees, as a matter of the case-or-controversy requirement associated with Art. III . . ..”); Boeing v. Van Gemert, 444 U.S. 472, 488 n.4 (1980) (“Although respondents have not challenged Boeing’s standing, we are obligated to consider the issue sua sponte, if necessary.”). Under the Federal Rules of Civil Procedure a court shall dismiss the action “whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter . . ..” Fed. R. Civ. P. 12(h)(3) (2006). “As a jurisdictional requirement . . . standing can be raised by the court sua sponte at any time during the litigation.” Delorme v. U.S., 354 F.3d 810 (8th Cir. 2004). This Court will address the question of whether the plaintiff, representing former employees, as opposed to current employees, at the time the
3

adverse employment action was taken, has standing under the ADEA, as required by Article III of the United States Constitution.
Under the ADEA, “[a]ny person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter.” 29 U.S.C. § 626(c)(1) (emphasis in original). The Eighth Circuit has interpreted the language “any person aggrieved” to require only the threshold standing requirements for a case or controversy. Horne v. Firemen’s Retirement System of St. Louis, 69 F.3d 233, 235 (8th Cir. 1995) (“[t]he ADEA confers standing to sue upon a ‘person aggrieved’ by age discrimination . . . reflecting a congressional intent to expand standing to sue to the maximum extent permissible under Article III of the United States Constitution.”). The Supreme Court has held that to meet the threshold case or controversy requirement, the plaintiff must show that he has sustained an actual injury, that it is the result of the challenged conduct, and that a favorable decision by the court will redress the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992); see also Bill M. ex rel. William M. v. Nebraska Dept. Of Health and Human Services Finance and Support, 408 F.3d 1096, 1099 (8th Cir. 2005) (“standing requires a party to show actual injury, a causal relation between that injury and the challenged conduct, and the likelihood that a favorable decision by the court will redress the alleged injury.”).
Due to the expansive reading that has been given to the ADEA’s aggrieved person language, it is clear that the Plaintiff has standing to sue. The Plaintiff, the EEOC, represents a group of former employees that allege an injury as a result of the Defendant’s “rehire policy;” that
4

they were barred from obtaining an alternate position within Allstate. The Plaintiff challenges the rehire policy, which caused the alleged injury, as violating the ADEA. If the Plaintiff is successful in proving that the Defendant’s rehire policy violates the ADEA, and that the violation caused the claimants’ injuries, this Court can redress that injury by providing damages to the claimants. As provided in the ADEA, the EEOC may bring suit on behalf of an aggrieved person. 29 U.S.C. at 626(c)(1). III. SUMMARY JUDGMENT STANDARD
Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment only if all of the information before the court shows “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). See Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986). The United States Supreme Court has noted that “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the federal rules as a whole, which are designed to ‘secure the just, speedy and inexpensive determination of every action.’” Id. at 327 (quoting Fed. R. Civ. P. 1). “By its terms, [Rule 56(c)(1)] provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those “that might affect the outcome of the suit under the governing law,” and a genuine material fact is one such that “a reasonable jury could return a verdict for the nonmoving party.” Id. Further, if the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a
5

complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.
The initial burden of proof in a motion for summary judgment is placed on the moving party to establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. Anderson, 477 U.S. at 249. When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). To meet its burden, the non-moving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In fact, the non-moving party must show there is sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for it. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 324. “If the non-moving party fails to produce such evidence, summary judgment is proper.” Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991). IV. DISCUSSION
The ADEA states, in pertinent part, It shall be unlawful for an employer– (1) to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment
6

opportunities or otherwise adversely affect his status as an employee, because of such individual’s age . . .. 29 U.S.C. § 623(a)(1) & (2) (2006). The Supreme Court in Smith v. City of Jackson, Mississippi, found that a disparate impact claim is cognizable under the ADEA, under § 623(a)(2). 544 U.S. 228, 228 (2005) (“The ADEA does authorize recovery in ‘disparate-impact’ cases . . ..”). In reaching this determination the Court first looked to precedent interpreting Title VII, which employs identical language to that used in the ADEA, with the substitution of ‘age’ for ‘race, color, religion, sex, or national origin.’ Id. at 233-34 (“[W]e begin with the premise that when Congress uses the same language in two statutes having similar purposes . . ., it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”). In both Title VII and the ADEA the Court found the language ‘or otherwise adversely affect his status’ to subject an employer to liability even when the employer “classifies his employees without respect to [the protected characteristic] . . ..” Id. at 235-36. This language is focused on the effects of the employer’s action, not the motivation for that action. Id. at 236. This interpretation is based on the language found in 29 U.S.C. § 623(a)(2) (“or otherwise adversely affect his status as an employee”); this language is not found in § 623(a)(1). The Supreme Court notes that there are “key textual differences between § 4(a)(1) [§ 623(a)(1)], which does not encompass-disparate-impact liability, and § 4(a)(2)[§ 623(a)(2)].” Id. at 236 n.6. The Court holds that “an employer who classifies his employees without respect to age may still be liable under the terms of this paragraph if such classification adversely affects the employee because of that employee’s age-the very definition of disparate impact.” Id. The Supreme Court’s holding in City of Jackson is not specifically applicable to a claim under § 623(a)(1),
7

however the dicta in footnote six clearly states that it is only under § 623(a)(2) that a disparate impact theory is congnizable. Id. at 235.
The Supreme Court goes on to address an important distinction between the ADEA and Title VII, in relation to a disparate impact claim. The ADEA in § 623(f)(1) provides that
[i]t shall not be unlawful for an employer, employment agency, or labor organization- (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age .... Id. at § 623(f)(1) (emphasis added). This is colloquially known as the ‘reasonable factors other than age’ requirement (RFOA). The RFOA requirement allows employers to avoid liability if an employment decision, that is shown to have a disparate impact on employees protected under the ADEA, was based on reasonable factors other than the employees’ age. Id. at 242-243. This provision appears to apply equally to claims under §§ 623(a)(1) and (2), however, as the Supreme Court noted, the provision is unnecessary for disparate-treatment claims under § 623(a)(1). Id. at 238. This is because under § 623(a)(1) an employer can legally reject an applicant for a legitimate nondiscriminatory reason without reference to the RFOA provision, because the decision would not be “because of such individuals age.” Id; 29 U.S.C. at § 623(a)(1). Rather, this provision limits an employer’s liability under the disparate-impact theory; allowing an employer to make an employment decision that has a disparate impact on employees over age 40 as long as that decision was reasonable. City of Jackson, 544 U.S. at 240. The basic framework of a disparate impact claim has been recognized in numerous cases in the Eighth Circuit; in fact the Eighth Circuit recognized disparate-impact claims under §§623(a)(1) and (2) before the Court’s decision in City of Jackson. See e.g. Leftwich v. HarrisStowe State College, 702 F.3d 686, 690 (8th Cir. 1983) (The court quotes the language of §
8

623(a)(1), and then goes on to describe how a prima facie case of age discrimination is determined under a disparate impact theory.). In order to state a valid claim of disparate impact, “a plaintiff must prove, as a threshold matter, that the challenged employment practice, while facially neutral, has a disparate impact on certain employees ‘because of their membership in a protected group.’” EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 950 (8th Cir. 1999).
The Supreme Court and Eighth Circuit precedent clearly support a finding that a disparate impact claim is cognizable under the ADEA. However, in deciding a motion for summary judgment it is necessary to determine who has the burden of production and persuasion on each element of the prima facie case, and any affirmative defenses. Prior to the Supreme Court’s decision in City of Jackson, the Eighth Circuit had allowed for a claim of disparate impact, and provided guidelines for analyzing such a claim. Leftwich, 702 F.2d at 690. Under this analysis the plaintiff had the burden of demonstrating that a facially neutral employment practice excluded a disproportionate number of persons over 40. Id. “Once the plaintiff established his prima facie case, the burden of persuasion shifted to the defendants to prove that their selection plan was justified by business necessity.” Id. at 691 (emphasis added). The Eighth Circuit had held that the burden of showing business necessity “is a heavy one,” requiring the Defendant to “show that their selection plan has a manifest relationship to the employment in question and that there is a compelling need to maintain the practice.” Id. at 692 (internal citations omitted).
This burden shifting approach, that was used in Title VII cases, and adopted by the Eighth Circuit in the ADEA context, was implicitly rejected in City of Jackson. 544 U.S. at 239. The Supreme Court held that although a disparate impact claim is cognizable under the ADEA it is narrower than under Title VII. Id. at 240. The heavy burden placed on the defendant under the business necessity defense is not equivalent to the burden under the RFOA provision. As the
9

Court points out, “age unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain types of employment.” Id. This narrower scope, requires a different approach than is required under Title VII, and consequently, a different approach from that previously used by the Eighth Circuit in ADEA claims.
Under the ADEA, the Plaintiff must first identify a specific employment practice which is responsible for the disparate impact. Id. at 241 (“It is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” (Internal quotation omitted)). Secondly, the court must determine the reasonableness of the factors considered by the Defendant in adopting the employment policy. Id. In City of Jackson, the Court determined that even had the plaintiff pointed to a specific employment practice that resulted in the disparate impact, the defendant’s “plan was based on reasonable factors other than age.” Id. The Court contrasts this with the business necessity test used in Title VII, “which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.” Id. at 243 (emphasis added).
The Supreme Court rejects the business necessity approach, but does not address who has the burden of proving, or disproving, the reasonableness of the factors, other than age, considered by the defendant. A number of court decisions in other circuits have addressed this question, and have unanimously decided that after the plaintiff has presented evidence of a prima facie case of discrimination, the defendant has the burden of production, in raising any factors considered other than age. The plaintiff then has the burden of persuading the factfinder that those factors were
10

unreasonable.3 This is the approach this Court will use in deciding Defendant’s and Plaintiff’s
motions for summary judgment.
A. APPLICABLE STATUTORY SECTION
The first question that is raised by the case at bar is under what section of the ADEA does
Plaintiff’s claim fall, § 623(a)(1) or § 623(a)(2). The discrimination claimed by the Plaintiff is the
failure to “rehire” former employees after they were discharged under the Reorganization Plan.
Pl. Complaint, ¶7(b) (“Defendant’s rehire moratorium policy had an adverse impact on former
employee-agents who were members of the protected age group.”). The Defendant’s first
argument in support of a finding of summary judgment in its favor is that this claim arises under §
623(a)(1), and therefore is not cognizable under the disparate impact theory. Def. Mot. for
Partial Sum. Judg., 1 (“First, a disparate impact claim with respect to a hiring policy is not
cognizable under the ADEA . . ..”). The Plaintiff disagrees with the Defendant’s classification of
this case as a “hiring case” and rather sees this case as a “rehire case” which is appropriately
addressed as a policy that affects the status, of a member of the protected class, as an employee.
Pl. Mem. in Sup. of Mot. For Partial Sum. Judg., 12. Plaintiff would address this case under §
623(a)(2), challenging an employment practice.
3Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134, 142 (2nd Cir. 2006) (“The best reading of the text of the ADEA-in light of City of Jackson and Wards Cove-is that the plaintiff bears the burden of persuading the factfinder that the employer’s justification is unreasonable.”); Pippen v. Burlington Resources Oil and Gas Co., 440 F.3d 1186, 1200 (10th Cir. 2006) (“Thus, after an employee establishes a prima facie case of disparate impact age discrimination under the ADEA, the burden of production shifts to the employer to assert that its neutral policy is based on a reasonable factor other than age. . . . [A]n employee must ultimately persuade the factfinder that the employer’s asserted basis for the neutral policy is unreasonable.” (emphasis in original).); Durante v. Qualcomm, Inc., 114 Fed.Appx. 603, 607 (9th Cir. 2005) (“Qualcomm [defendant] produced unrebutted evidence that its termination decisions were made to satisfy the differing business needs of the varying divisions and departments . . ..”); See Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 767 (7th Cir. 2006) (The court found it error to instruct the jury that the RFOA requirement was an affirmative defense.).
11

The difficulty in deciding under which section this case arises is emphasized by the parties’ suggested methods of identifying a statistically significant disparate impact. As pointed out by Defendant, in a disparate impact hiring case, which is no longer cognizable after City of Jackson, the Eighth Circuit would look either to the number of available applicants in the job market that were members of the protected class, or the number of actual applicants that were a member of the protected class, compared with the number of members of the protected class that were actually hired. See e.g. Hameed v. International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 396, 637 F.2d 506, 512 n.6 (8th Cir. 1980). In the alternative, the defendant suggests, based on their assumption that this is a hiring case, that the correct statistical analysis is a comparison of those who were subject to the no rehire policy that were members of the protected group with those who were subject to the no rehire policy that were not members of the protected group. Def. Mot. in Sup. Of Mot. for Sum. Judg., 9-10. The first suggestion by the Defendant, to use qualified applicants in the general labor pool, is flawed. Applicants from the general labor pool would not be subject to the rehire policy at issue, because they were not former employees. The second suggestion for statistical analysis by the Defendants would clearly result in a finding of no disparate impact, as all former employee-agents were subject to the rehire policy, not only those who were members of the protected group. As this illustrates, this case is not a hiring case, under the normal use of that term.
The Court thus turns to § 623(a)(2), which states: “it shall be unlawful for an employer. . . to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age. . ..” 29 U.S.C. at 623(a)(2). However, § 623(a)(2), which does allow a disparate impact claim under City of Jackson, specifically applies to
12

employees. See Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1470 (8th Cir. 1996) (“Section
623(a)(2) of the ADEA governs conduct with respect to employees only . . ..”). Consequently,
the facts of this case do not fit squarely into either section of the ADEA. The effect of deciding
that it is a hiring case, is to find that no cause of action exists, City of Jackson, 544 U.S. at 236
n.6, and finding that it is a § 623(a)(2) case requires finding the action affected the claimants
status as employees. This Court, in looking to the purpose stated by congress in the ADEA, the
legislative history of the Act, as well as Supreme Court and Eighth Circuit precedent, has
determined that this case raises an important question of discrimination which should not fail
solely because the plaintiffs were not employees at the time the adverse employment action was taken.4 Rather, the most logical approach is to treat the rehire policy as a part of the
Reorganization Plan which effected all employee-agents.
The first place this Court looks is to the Congressional Statement of findings and purpose.
29 U.S.C. at § 621. This section states in part:
(a) The Congress hereby finds and declares that -- (1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs; . . . (4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.
Id. at §§ 621(a)(1) & (4) (emphasis added). The concerns of Congress, that employment actions
which have the affect of leaving older workers in a disadvantaged position of seeking
employment, are the same concerns that are raised by the present case. The Defendant’s actions
clearly left a large number of former employee-agents, who were members of the protected group,
4This is not to say that the Plaintiff will necessarily succeed, but rather that if the challenged action had an adverse impact on employees over age 40, then such action should be scrutinized, to determine if the company used reasonable factors other than age in making its decision.
13

seeking employment, and being unable to seek that employment from the Defendant for the period of one or two years.5 The legality of the Reorganization Plan is not before this court,6 but the effect of that reorganization was to require the former agents to either become independent contractors, or to seek other employment. The Defendants then implemented a rehire policy which barred this same group from reapplying for positions within the company. Although the Reorganization Plan alone is not being challenged, the rehire policy is inextricably linked to that plan, affecting the same group of employee-agents. The Court believes that it was the intent of Congress to prevent actions such as this, which could be described as an action which “otherwise adversely affect[s the claimants] status as employee[s].” 29 U.S.C. at § 623(a)(2).
This Court is also persuaded by the legislative history. As the Supreme Court in City of Jackson points out, the Congressional purpose was to prevent the discriminatory impact that certain conditions of employment can have on older workers. 544 U.S. at 235. The Court relies on the Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 5 (June 1965), which was reprinted in the U.S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in Employment Act (1981) Doc. No. 5, and is known as the Wirtz Report. Id. at 233. This report supports an interpretation of the ADEA to include a disparate impact claim as it found that discriminatory effects result from “[i]nstitutional arrangements that indirectly restrict the employment of older workers.” Id. (citing
5The amount of time an individual was receiving severance benefits dictated the length of time they were barred from rehire.
6Although the Court is not required to rule on the legality of the Reorganization Plan, it seems clear that this plan would not be prohibited under the ADEA. The Defendants reasons for undertaking this action would constitute reasonable factors other than age. The Defendants intent to convert all of its agents to independent contractors was evidenced by the fact that they no longer hired employee-agents, but only independent contractor agents.
14

The Wirtz Report, 15) (alterations in original). Further, the Supreme Court points out that “Congress had directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Id. at 234 (internal citations omitted) (emphasis in original). The focus on indirect restrictions supports this Court’s conclusion, that actions, such as those at issue in the present case, need to be addressed, and were intended to be addressed by the ADEA.
This result is also supported by Eighth Circuit precedent, interpreting the ADEA, prior to the Supreme Court’s decision in City of Jackson. As the Eighth Circuit stated in Smith v. City of Des Moines, Iowa, “we have on several occasions applied disparate impact analysis to age discrimination claims.” 99 F.3d 1466, 1469 (8th Cir. 1996). In Leftwich, the court found that a disparate impact claim was cognizable under § 623(a)(1), prior to the Supreme Court’s decision, but nonetheless showing an acceptance of disparate-impact claims in this Circuit. 702 F.2d at 690, see also Lewis v. Aerospace Community Credit Union, 114 F.3d 745, 750 (8th Cir. 1997) (The court affirmed the district court’s granting of summary judgment because plaintiff failed to provide sufficient evidence in support of its disparate impact discrimination claim.). Many of the cases involve facts related to a reduction-in-force (RIF), which is the same as the case at hand, with the minor distinction that the policy the Plaintiff is challenging is the rehire policy, not the reduction itself. See Lewis, 114 F.3d at 746 (“eliminated several positions”), Leftwich, 702 F.2d at 688 (“recommended a plan which would reduce the faculty from fifty-one members to approximately thirty-four members”). The termination, and subsequent refusal to rehire over 6000 employees, raises serious questions that need to be addressed, and which are most appropriately addressed under § 623(a)(2) as a policy which “tend[s] to deprive any individual of employment opportunities,” thus adversely affecting their status as an employee. 29 U.S.C. § 623(a)(2).
15

B. DISPARATE IMPACT A disparate impact claim challenges an “employment practice that [is] facially neutral in [its] treatment of different groups, but in fact fall[s] more harshly on one group than another.” International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335 (1997), Lewis, 114 F.3d at 750. In order to present a prima facie case the plaintiff is “responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” City of Jackson, 544 U.S. at 241. The plaintiff must provide evidence of a specific employment practice, and that the employment practice had a disparate impact on members of the protected class. The first element of a prima facie case is the identification of a specific employment practice responsible for the disparate impact. Pippin, 440 F.3d at 1200. (In order to present a prima facie case of discrimination the Plaintiff must “show that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.”). It is necessary that the plaintiff do more than generally allege discrimination, or point to a generalized policy that leads to discrimination. Id. In the present case, the Plaintiff challenges the Defendant’s rehire policy, adopted by the Defendant on September 26, 2006. This is a specific policy adopted by the Defendants that Plaintiff challenges violates the ADEA. Secondly, the Plaintiff must show a disparate impact. In support of a claim for disparate impact the plaintiff must present evidence of a statistically significant impact on members of the protected group. Tests of statistical significance must eliminate chance as the cause of the disparate impact; most courts have found that a difference is significant at the five percent significance level. Hameed, 637 F.2d at 513. The question raised in the present action is not whether the evidence provided by the Plaintiff shows a statistically significant difference, but
16

rather whether the analysis used in reaching that result is the correct analysis. As noted above, the
Defendant would have the Court compare the number of employees who applied for jobs with
Allstate that were in the protected group, with those who were actually employed by Allstate that
were members of the protected group.7 Or, in the alternative, would look at those employees that
were terminated under the Reorganization Plan, and compare those within the protected group
that were not rehired, with those not in the protected group that were not rehired. The Plaintiff
suggests the Court compare the percentage of Allstate employees within the protected group who
were disqualified from rehire, with the percentage of Allstate employees not within the protected
group, that were disqualified from rehire. Pl. Memo. in Support of its Mot. for Partial Sum.
Judg. as to Liability, 8.
As the Court decided above that this case is to be decided under § 623(a)(2), it would be
inconsistent to now use a hiring analysis to determine whether there was a disparate impact.
7The Defendants cite to a Sixth Circuit opinion which held that “[t]he disparity identified by appellants does not show that the moratorium had the effect of preventing Federal Forge [defendant] from hiring a percentage of workers 40 and over that was representative of the qualified labor pool.” Abbott v. Federal Forge, 912 F.2d 867, 874 (6th Cir. 1990). However, the facts in that case are distinguishable; the former employees were given a preference in hiring for the first 12 months after they had been laid off due to a plant closure. Id. at 873. Following the twelve month preference period they then became members of the general applicant pool. Id. Only after a grievance was filed by the United Auto Workers Union regarding seniority and pension benefits for former employees did the defendant Federal Forge place a moratorium on hiring. Id. at 870-871. Once a decision had been made, Federal Forge lifted the hiring moratorium. Id. Only once the Plaintiffs were members of the general applicant pool did the policy effect them, unlike the present case where the rehire policy immediately effected all former employee-agents. The Second distinction that is important, is that the plaintiffs in that case never raised the statistical method suggested by the Plaintiff in the case at bar. In fact, the only statistical evidence provided by the plaintiffs was a comparison between the people hired during the moratorium, and the group barred from hire due to the moratorium. Id. at 872-73. In responding to this statistical data, the court stated that this is not the correct analysis in a disparate impact hiring case. Id. at 873. Furthermore, both parties in Federal Forge addressed the case as a hiring case. Id. at 870 (charging that the moratorium amounted to a refusal to hire on the basis of age. . ..”).
17

Treating the Reorganization Plan as inextricable from the rehire policy, the appropriate analysis is that suggested by the Plaintiff; comparing the total number of Allstate employees within the protected group that were affected by the policy, with the number of Allstate employees not in the protected group that were affected by the policy. When an employee is terminated, the court treats this as a term of employment, analyzed under § 623(a)(2). The current case is no different, the employees were terminated, and then unable to apply for an alternate position.
The Plaintiff has provided evidence that over 90% of the employees that were subject to the Reorganization Plan, and subsequently disqualified from rehire, were over age 40. Pl. Memo. in Sup. Of Mot. For Partial Sum. Judg. as to Liability, 8. Furthermore, out of the total number of Allstate employees that were affected by the rehire policy, 23 percent were over age 40, compared with 2.7 percent of those not within the protected group. An alternate measure used by the Plaintiff, which the Court finds persuasive, is that the average age of employees subject to the rehire policy was 51.1 years old compared with the average age of Allstate’s entire workforce which was 39.4 years old. Id. at 9. The Defendant has not provided the Court with evidence that Plaintiff’s statistical analyses are mathematically incorrect, but rather, have argued that the analyses are inappropriate. As the Court has determined this analysis is appropriate, the Court further finds that the Plaintiff has provided sufficient evidence to show a disparate impact on the protected group, sufficient to sustain a motion for summary judgment in their favor.
C. REASONABLE FACTORS OTHER THAN AGE Under the second step of the analysis articulated above, the Defendant has the burden of production, on the RFOA provision, after the Plaintiff has provided evidence of a prima facie case. Pippen, 440 F.3d at 1200 (“Thus, after an employee establishes a prima facie case of disparate impact age discrimination under the ADEA, the burden of production shifts to the
18

employer to assert that its neutral policy is based on a reasonable factor other than age. . . .). The Defendant has articulated a number of reasons why the rehire policy was adopted, the Plaintiff generally disputes the reasonableness of the explanations given. The first reason articulated by the Defendant was to avoid customer confusion and conflict because of interaction with a former agent working in a different job position, when the customer was assigned to a new independent agent. A second reason was to encourage former employee-agents to participate in the independent contractor agency program. A third reason testified to by Ms. Zuzich was to prevent double-dipping; having people on the payroll that were also receiving severance benefits. A fourth reason was to prevent those individuals who had decided not to continue a relationship with the Defendant, from working next to other Defendant employees. Fifth, the Defendant wanted to implement a rehire policy in connection with the Reorganization Plan that was consistent with its Special Retirement Opportunities Program, that contained a similar rehire policy.
The Plaintiff then has the burden of proving that the above cited reasons are unreasonable. Meacham, 461 F.3d at 142 (“The best reading of the text of the ADEA-in light of City of Jackson and Wards Cove-is that the plaintiff bears the burden of persuading the factfinder that the employer’s justification is unreasonable.”) The Plaintiff recounts a lot of information from the deposition of Ms. Zuzich, who developed and implemented the rehire policy, in an effort to show the lack of reasonableness of any of Defendants proffered reasons for the policy. The Plaintiff points out that Ms. Zuzich could not recall involving anyone else in the decision making process before implementing the rehire policy, other than in-house counsel and an individual from sales distribution. The Plaintiff further states that Ms. Zuzich did not inquire as to whether any of the concerns she had with rehiring former employee-agents (reasons one and four above) had
19

occurred with those agents who had been rehired, during the period between the agents termination, June 30, 2000, and the implementation of the rehire policy September 26, 2000. Ms. Zuzich further testified that she did not research whether the rehire policy would be beneficial to the Defendant, she did not recall reviewing any documents associated with the Reorganization Plan, nor did she make any effort to determine the age demographics of the former employeeagents who would be subject to the rehire policy. The Plaintiff refutes reason two with evidence that all former employee-agents had to decide to join the independent contractor agent program by June 1, 2000, three months prior to the implementation of the rehire policy. Therefore, the Defendant could not have intended the rehire policy to encourage enrollment in the independent contractor program, because the date for making the decision had passed. The Plaintiff refutes reason number three above, by pointing to Ms. Zuzich’s testimony that the Defendant had a standard policy in place that would prevent double-dipping. This policy required any individual who was rehired by the Defendant, and who was also receiving severance benefits, to repay the unused portion of the severance benefit. Plaintiff points to deposition testimony that Ms. Zuzich could not give an adequate explanation as to why a special rehire policy was required to cover the former employee-agents subject to the Reorganization Plan; rather, Plaintiffs’ claim that the standard policy was sufficient, making this factor unreasonable. The Plaintiff claims that reason five, consistency with the Special Retirement Opportunity Program, is unreasonable because of the significant differences between the two programs.
As both parties have provided evidence on the factors considered in implementing the rehire policy, this Court is not in a position to decide on summary judgment whether these factors were reasonable. A reasonable jury could find for the Plaintiff that the Plaintiff has provided sufficient evidence that the proffered reasons are unreasonable.
20

V. CONCLUSION Plaintiff has fulfilled its burden of providing evidence supporting its claim of a disparate-
impact resulting from the Defendant’s rehire policy adopted in conjunction with their Reorganization Plan. Defendant has not presented sufficient evidence to rebut this claim, and therefore no material issue of fact exists as to Plaintiff’s prima facie case. However, the Defendant has introduced evidence that the challenged employment policy was adopted based on reasonable factors other than age. The Plaintiff has the ultimate burden of proving that the reasons offered by the Defendant were unreasonable. The Plaintiff has provided sufficient evidence that a reasonable jury could find that the challenged policy was unreasonable, and therefore the question is not appropriate for summary judgment. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial Summary Judgment as to Liability [doc. # 42] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Defendant’s Motion for Partial Summary Judgment is DENIED.
Dated this 19th Day of October, 2006.
E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE
21

 </s> Case: 4:04-cv-01359-ERW Doc. #: 88 Filed: 06/10/08 Page: 1 of 19 PageID #: 1722

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 07-1559 ___________

Equal Employment Opportunity

*

Commission,

*

*

Plaintiff - Appellee,

*

* Appeal from the United States

v.

* District Court for the

* Eastern District of Missouri.

Allstate Insurance Company,

*

*

Defendant - Appellant. *

___________

Submitted: November 15, 2007 Filed: June 10, 2008 ___________

Before MELLOY, BRIGHT, and SHEPHERD, Circuit Judges. ___________

BRIGHT, Circuit Judge.

This age discrimination case is before us on a proper interlocutory appeal from the district court’s1 order granting partial summary judgment in favor of Appellee, the Equal Employment Opportunity Commission (“EEOC”). The EEOC alleges that a rehire policy implemented by Appellant, Allstate Insurance Company (“Allstate”), had a disparate-impact on Allstate’s employee-agents in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq.

1The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.

Case: 4:04-cv-01359-ERW Doc. #: 88 Filed: 06/10/08 Page: 2 of 19 PageID #: 1723
Following cross-motions for summary judgment, the district court granted in part the EEOC’s motion for partial summary judgment holding: (1) the rehire policy was an “employment policy,” which could be challenged under a disparate-impact theory; and (2) the EEOC’s statistical evidence established a prima facie case of disparate-impact.
On January 4, 2007, the district court certified the following two questions for interlocutory appeal: (1) whether Allstate’s rehire policy is an “employment policy” which can be challenged under a disparate-impact theory of discrimination; and (2) whether the statistics proffered by the EEOC and adopted by the district court, establish disparate-impact as a matter of law? These are close and difficult questions. We have jurisdiction under 28 U.S.C. § 1292(b). After carefully reviewing the parties’ arguments and relevant case law we answer both questions in the affirmative and affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
I. Allstate’s “Preparing for the Future” Group Reorganization Program
Until June 2000, Allstate employed approximately 6,300 employee-agents to sell property and casualty insurance. Allstate also sold property and casualty insurance through “Exclusive Agents”, who were independent contractors. In 1990, Allstate stopped hiring employee-agents.
On November 10, 1999, Allstate announced its “Preparing for the Future” Group Reorganization Program (“Reorganization Program”), which would terminate all employee-agents effective June 30, 2000. Under the program, an employee-agent had four possible “severance” options. The first two options allowed an employeeagent to become an independent contractor, i.e., “Exclusive Agent,” and receive a $5,000 bonus. The third option offered enhanced severance pay if the employee signed a release of legal claims against Allstate. The fourth option was similar to the
-2-

Case: 4:04-cv-01359-ERW Doc. #: 88 Filed: 06/10/08 Page: 3 of 19 PageID #: 1724
third, except the employee was not required to sign a release and would receive a base severance pay. Allstate gave the employee-agents until June 1, 2000 to select an option.
II. The Rehire Policy
Between June 2000 and September 2000, Allstate did not have in place a policy that restricted the rehire of its former employee-agents.2 On September 26, 2000, after realizing that there was no “rehire policy” in place in connection with the Reorganization Program, Allstate implemented a “rehire policy” that restricted a former employee-agent’s rehire. JA I at 124. This policy applied only to the former employee-agents who were terminated under the Reorganization Program. Pursuant to the rehire policy, former employee-agents would not be considered for rehire in any employee position with Allstate for a period of either (1) one year from their termination date; or (2) the length of time the former agents received severance benefits from Allstate, whichever was longer.
III. Procedural History
A. Motions for Summary Judgment
On October 7, 2004, the EEOC filed a complaint in the District Court for the Eastern District of Missouri challenging Allstate’s “rehire policy” under the ADEA. The EEOC does not challenge the termination of the employee-agents. Rather, the EEOC challenges the subsequent restriction on rehiring, which Allstate implemented on September 26, 2000. The complaint alleged that the rehire policy had a disparate-
2There was deposition testimony indicating that three former employee-agents had been hired into non-agent positions during this time. Joint App’x (JA) I at 135.
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impact on former employee-agents ages forty and older.3 Following discovery, both parties filed motions for partial summary judgment.
The EEOC moved for partial summary judgment on the issue of liability. It argued that the rehire policy resulted in a disparate-impact on workers ages forty and older and that the policy could not be justified by a reasonable factor other than age. To show that the rehire policy had a disparate-impact on older workers, the EEOC offered three different statistical analyses. The first analysis compared the total number of employees subject to the rehire policy ages forty and older to the total number of employees under forty who were subject to the rehire policy. Of the 6,312 employees subject to the rehire policy, 90.3% (5,599) were ages forty and older when Allstate implemented the Reorganization Program.4 On the other hand, 9.7% (613) of the employees subject to the rehire policy were less than forty years old when the Reorganization Program was implemented.
The second analysis compared the employees subject to the rehire policy with Allstate’s overall workforce. The 5,599 employees who were ages forty and over when the Reorganization Program was implemented represented 23% of Allstate’s general workforce,5 while the 613 employees under age forty represented 2.7% of Allstate’s general workforce.
3The complaint also contains a claim for intentional discrimination, which is not at issue in this appeal.
4The EEOC calculated the ages of the former employee-agents as of the date of their termination, which was also the date the Reorganization Program was implemented.
5The EEOC’s statistical report calculated Allstate’s total workforce by adding the total number of “active employees” not subject to the rehire policy, 40,961, and the total number of employee-agents subject to the rehire policy, 6,312. This yielded a total of 47,273. JA I at 20 (Sisolak Report).
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The third analysis compared the average age of employees subject to the rehire policy with those not subject to the policy, i.e., the rest of Allstate’s general workforce. The average age of those subject to the rehire policy was 51.1, while the average age of those not subject to the rehire policy was 39.4. According to the EEOC’s statistical expert, “the employees affected by the [rehire policy] were, on the average, almost 12 years older than those who were not affected.” JA I at 21.
In its cross-motion for partial summary judgment, Allstate argued that the rehire policy was a “hiring policy.” Therefore, the EEOC could not challenge the rehire policy under a disparate-impact theory because the Supreme Court opined in Smith v. City of Jackson, 544 U.S. 228, 236 n.6 (2005), that a disparate-impact claim is not cognizable under the ADEA with respect to hiring policies. Furthermore, Allstate argued that the EEOC did not establish that the rehire policy had a disparate-impact on job applicants over the age of forty because, as a matter of law, the proper way to determine whether a hiring policy has a disparate-impact is to determine the policy’s impact on the applicant pool. Finally, Allstate argued that even if the EEOC established disparate-impact, the hiring policy was based on a reasonable factor other than age and therefore does not violate the ADEA.
B. The District Court’s Order
The district court granted in part and denied in part the EEOC’s motion for partial summary judgment. EEOC v. Allstate Ins. Co., No. 04-cv-1359, slip op. at 21 (E.D. Mo. Oct. 19, 2006). The court agreed with Allstate that after Smith, hiring policies are no longer susceptible to disparate-impact challenges. Id. at 8. The court, however, held that Allstate’s rehire policy was an “employment policy,” not a hiring policy and therefore the EEOC could proceed under a disparate-impact theory. Id. at 11-15. Next, the court held that the EEOC made out a prima facie case of disparateimpact because the EEOC established that the rehire policy had a statistically significant impact on older workers. Id. at 16-18.
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The district court, however, denied the EEOC’s motion for summary judgment on the issue of whether the rehire policy was supported by a reasonable factor other than age. Id. at 20. It held that there were disputed issues of material fact on the reasonableness of the policy, thus precluding summary judgment on this issue.6
Following the district court’s order granting in part and denying in part the EEOC’s motion for partial summary judgment, Allstate filed a motion to certify for interlocutory appeal the district court’s order favoring the EEOC. The district court granted Allstate’s motion on interlocutory appeal. EEOC v. Allstate Ins. Co., No. 04cv-1359 (E.D. Mo. Jan. 4, 2007). We also have permitted this appeal. We turn to the issues.
DISCUSSION
This Court reviews a district court’s grant of summary judgment de novo applying the same standards as the district court. McGinnis v. Union Pacific R.R., 496 F.3d 868, 873 (8th Cir. 2007); Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007). We also apply this standard to a district court’s grant of partial summary judgment. See FDIC v. Bell, 106 F.3d 258, 263 (8th Cir. 1997). “Summary judgment is appropriate if the evidence, viewed in the light most favorable to [the nonmoving party] and giving [the nonmoving party] the benefit of all reasonable inferences, shows there is no genuine issue of material fact . . . .” Morgan, 486 F.3d at 1039.
6This issue is not before us in this interlocutory appeal. -6-

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I. Whether Allstate’s rehire policy is an “employment policy” which can be challenged under a disparate-impact theory of discrimination?
The Age Discrimination in Employment Act of 1967 (“ADEA”) provides in part:
(a) Employer practices It shall be unlawful for an employer–
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.
29 U.S.C. § 623(a)(1), (2). The ADEA affords protection to “individuals who are at least 40 years of age.” § 631(a). The term “employee” is defined by the ADEA as “an individual employed by any employer.” § 630(f).
Unlike a disparate-treatment theory, which challenges an intentionally discriminatory employment practice, a disparate-impact theory may be used to challenge employment practices that are “fair in form but discriminatory in practice.” Wards Cove Packing Co. Inc., v. Antonio, 490 U.S. 642, 645 (1989); see also Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977) (“[Disparate-impact claims] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another.”). Under a disparate-impact theory, “a facially neutral employment practice may be deemed [discriminatory] . . . without evidence of the employer’s subjective intent to discriminate.” Wards Cove Packing Co., 490 U.S. at 645-46.
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Until the Supreme Court’s 2005 decision in Smith, 544 U.S. 228, whether a plaintiff could proceed on a disparate-impact theory under the ADEA remained an open question. In Smith, the Court held that disparate-impact claims are available under the ADEA. Id. at 232. The Court, however, limited this holding to challenges to discriminatory employment classifications prohibited under § 623(a)(2). In a footnote, the Court explained that disparate-impact claims are not available to challenge hiring and termination practices prohibited under § 623(a)(1). Id. at 236 n.6. In concluding that disparate-impact is not available to challenge hiring and termination practices under § 623(a)(1), the Supreme Court focused on the textual differences between sections (a)(1) and (a)(2). Id. The text of section (a)(1) focuses on the effect of the “employer’s actions with respect to the targeted individual,” which gives rise to a disparate-treatment claim but not a disparate-impact claim. Id. (emphasis added). On the other hand, the text of section (a)(2) focuses on the effect of an employer’s practices on employees generally, which, unlike section (a)(1), gives rise to a disparate-impact claim. Id. (emphasis added).
Because the EEOC challenged Allstate’s rehire policy under a disparate-impact theory, they may proceed if (1) the policy is an employment policy, which (2) “deprives or tends to deprive any individual of employment opportunities” under § 623(a)(2).
Allstate argues that the policy at issue here relates to hiring and therefore falls squarely under § 623(a)(1). First, the rehire policy only affected former employees and not current employees. Second, the policy only applied to former employees once they placed themselves in the general applicant pool and applied for positions with Allstate. And third, in refusing to hire former employee-agents, Allstate was not treating them as employees, it was treating them as job applicants. Therefore, Allstate contends, the policy is appropriately characterized as a hiring policy within the plain language of § 623(a)(1).
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The district court rejected Allstate’s arguments. The court observed that it would be illogical to treat the rehire policy as a hiring policy when “[a]pplicants from the general labor pool would not be subject to the rehire policy at issue, because they were not former employees.” Allstate Ins. Co., No. 04-cv-1359, slip op. at 12. On the other hand, the district court noted that the rehire policy did not fit squarely into the definition of an “employment policy” because it affected only former employeeagents. Id. Notwithstanding the difficulty in characterizing the rehire policy as either an “employment policy” or “hiring policy,” the district court reasoned that “the most logical approach is to treat the rehire policy as part of the Reorganization Plan which effected [sic] all employee-agents.” Id. at 13. And “[a]lthough the Reorganization Plan alone is not being challenged, the rehire policy is inextricably linked to that plan, affecting the same group of employee-agents.” Id. at 14. Thus, the district court determined that the rehire policy was an “employment policy” and not a “hiring policy.” Id. at 15.
Finally, the district court ruled the rehire policy resulted in “the termination and subsequent refusal to hire over 6,000 employees,” and therefore should be “appropriately addressed under § 623(a)(2)” as an employment policy which deprived employees of employment opportunities with Allstate.
We agree with the district court that Allstate’s rehire policy falls within the meaning of § 623(a)(2) as an employment policy. First, the rehire policy was inextricably linked to and implemented as part of an employment policy, i.e., the Reorganization Program. And second, the rehire policy served to deprive a specific group of Allstate employees of employment opportunities with Allstate, a practice § 623(a)(2) specifically proscribes.
Relying on the fact that Allstate implemented the rehire policy after the Reorganization Program terminated all employee-agents, Allstate argues that the rehire policy did not affect employees, it only affected former employees, who,
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according to Allstate, are not protected under § 623(a)(2). Allstate’s reliance on the timing of the rehire policy puts form over substance. In substance and, indeed, by its very terms, the rehire policy, entitled “Preparing for the Future Reorganization Program (Clarification Of Re-Hire Policy),” was a part of the Reorganization Program. As its title suggests, the rehire policy only applied to employee-agents discharged as a result of the Reorganization Program, a fact which Allstate does not dispute. Moreover, the reasons Allstate offered for implementing the rehire policy further supports the conclusion that the rehire policy was part of the Reorganization Program. Karleen Zuzich, the drafter of Allstate’s rehire policy, testified at her deposition that in implementing the rehire policy, Allstate sought to encourage employee-agents “to be part of the exclusive agent program.”7 JA I at 126, 131, 151, 152. We therefore conclude that the rehire policy is an employment policy because it was implemented as part of an employment policy, i.e., the Reorganization Program.
Next, to fall within § 623(a)(2), the rehire policy must “limit, segregate, or classify . . . employees in any way which would deprive or tend to deprive any individual of employment opportunities.” § 623(a)(2). Allstate’s rehire policy denied employee-agents the opportunity to be rehired, albeit for a limited period of time. Such a policy, we hold, deprived Allstate’s employee-agents of employment opportunities with Allstate.
We therefore hold that the EEOC may challenge the rehire policy under § 623(a)(2) on a disparate-impact theory.
7However, the rehire policy was not implemented until September 2000, three months after Allstate terminated its employee-agents and three months after the June deadline for the employee-agents to decide whether to become independent contractors. Furthermore, Allstate never disclosed the rehire policy to its employeeagents. JA I at 153. It then becomes somewhat difficult to understand how the rehire policy could have influenced an employee-agent’s decision to become an Exclusive Agent.
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II. Whether the statistical analyses proffered by the EEOC establish a prima facie case of disparate-impact under the ADEA?
We now turn to whether the EEOC established a prima facie case of disparateimpact. The district court concluded that each of the EEOC’s statistical analyses established disparate-impact. With the exception of the average age analysis, we agree.
To establish a prima facie case of disparate-impact under the ADEA, the plaintiff must identify a specific employment practice and then present “statistical evidence of a kind and degree sufficient to show that the practice in question caused” the plaintiff(s) to suffer an adverse employment action. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988); Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 953 (8th Cir. 2001). To establish disparate-impact, however, the statistical evidence must be of a kind and degree “sufficient to show that the practice in question has caused the [disparate-impact].” Watson, 487 U.S. at 994 (emphasis added). While the Supreme Court has not framed these statistical formulations in rigid mathematical terms, the Court has “consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation.” Id. at 995.
Allstate argues that even if this Court characterizes the rehire policy as an employment policy, a determination of disparate-impact requires a statistical analysis of the actual hiring of older workers. In other words, Allstate contends that to properly determine whether the rehire policy had a disparate-impact requires an analysis of the policy’s affect on the hiring of older and younger applicants. And therefore, because the EEOC’s statistical analyses make no comparison to the relevant applicant pool, Allstate contends they must be rejected.
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The district court held that all three statistical analyses put forth by the EEOC made out a prima facie case of disparate-impact. The court concluded that the EEOC identified a specific employment practice–the rehire policy–and offered sufficient evidence to establish that the policy had a statistically significant impact on employeeagents ages forty and older. Allstate Ins. Co., No. 04-cv-1359, slip op. at 16. The court rejected Allstate’s argument that the proper method of analysis is to evaluate how the rehire policy affected the “general applicant pool.” The district court reasoned that because the case was not a hiring case, “it would be inconsistent to now use a hiring analysis to determine whether there was a disparate-impact.” Id. at 17. Rather, “[t]reating the Reorganization Plan as inextricable from the rehire policy, the appropriate analysis is that suggested by the Plaintiff; comparing the total number of Allstate employees within the protected group that were affected by the policy, with the number of Allstate employees not in the protected group that were affected by the policy.” Id. at 18. Noting that Allstate did not dispute the accuracy of the EEOC’s statistics, the court granted summary judgment in favor of the EEOC on the issue of impact. Id.
We agree with the district court that after characterizing the rehire policy as an “employment policy,” it would be error to use a “hiring analysis” to evaluate whether the policy had a disparate-impact. If this were a hiring case covered under § 623(a)(1), Allstate’s approach, relying on Wards Cove Packing Co., 490 U.S. 642,
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would be correct.8 This, however, is not a hiring case and therefore a hiring analysis does not apply.
More importantly, Allstate ignores Supreme Court precedent to the contrary by arguing that the characterization of the rehire policy as an employment policy does not compel this Court to reject a hiring analysis. In Connecticut v. Teal, 457 U.S. 440, 451 (1982), the Supreme Court rejected applying a “bottom-line” analysis to determine whether, under a disparate-impact theory, an employment policy denied certain employment opportunities to black employees.9
In Teal, four black employees of the State of Connecticut challenged a promotion policy which, as an absolute condition for consideration for promotion, required applicants to pass a written test. Id. at 443. The test had the effect of excluding black employees in disproportionate numbers from consideration. Overall, only twenty-six out of forty-eight black employees who took the exam passed. Id. at 444. However, out of 259 white employees who took the exam, 206 passed. Id. The district court determined that there was no disparate-impact because the “bottom-line” result of the promotional process was more favorable to black employees than white
8In Wards Cove Packing Co., the Supreme Court held that when challenging an employer’s selection of employees (a hiring practice or policy) under a disparateimpact theory, the appropriate analysis is to compare the composition of the at-issue jobs and the composition of the qualified population in the relevant labor market. Referred to as “external work force comparisons,” this is the general method for establishing disparate-impact in hiring cases. 490 U.S. at 650-51 (“It is such a comparison–between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs–that generally forms the proper basis for the initial inquiry in a disparate-impact case.”).
9Teal dealt with a parallel provision under § 703(a)(2) of Title VII, which, but for the use of the word “race,” is identical to language found in § 623(a)(2) of the ADEA. Smith, 544 U.S. at 233.
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employees: 22.9% of black applicants were promoted versus 13.5% of white applicants were promoted. Id. at 445.
The Supreme Court rejected this “bottom-line” analysis. Id. at 450. Rather, the Court held that to properly evaluate whether the employment policy had a disparateimpact, the appropriate analysis focuses on the written test’s affect on employment opportunities for black employees. Id. at 451. Because the passing rates for black employees (54.17%) was lower than that of white employees (79.54%), the test denied more black employees than white employees the opportunity for promotion and therefore had a disparate-impact on black employees. Id.
Applying the Teal analysis to this case, we conclude that two of the EEOC’s statistical analyses establish that the rehire policy had a disparate-impact on older workers. The EEOC offered evidence that 90.3% of employee-agents barred from rehire were ages forty and older, while only 9.7% of employee-agents barred from rehire were under forty. Viewed from a different perspective, the EEOC offered evidence that employee-agents ages forty and older, subject to the rehire policy, represented 23% of Allstate’s overall workforce, while the employee-agents under forty, also subject to the rehire policy, represented only 2.7% of Allstate’s overall workforce. These substantial statistical disparities demonstrate that the rehire policy denied more older workers than younger workers employment opportunities with Allstate, therefore raising an inference of causation sufficient to establish a prima facie case of disparate-impact. See Watson, 487 U.S. at 994-95 (“[The] statistical disparities must be sufficiently substantial that they raise such an inference of causation.”).
Finally, we conclude that the EEOC’s average age analysis does not establish disparate-impact in this case. Relying on Leftwich v. Harris-Stowe State College, 702 F.2d 686 (8th Cir. 1983), the EEOC contends that comparing the average age of employee-agents subject to the rehire policy–51.1–with the average age of Allstate’s
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general workforce, not subject to the rehire policy–39.4–establishes disparate impact. Allstate counters that Leftwich does not support the EEOC’s average age comparison to Allstate’s general workforce. We agree with Allstate that Leftwich does not support the EEOC’s average age analysis. And we also conclude that the EEOC’s average age comparison does not establish disparate-impact.
In Leftwich, Harris-Stowe State College reduced the number of full-time faculty members in order to lower instructional costs at its new college. In so doing, the college reserved a designated number tenured and nontenured faculty positions at the new college. Id. at 689. The college invited all faculty to submit applications for positions with the new college. Id. The plaintiff brought suit alleging the policy, which reserved a certain number of positions at the new college for nontenured faculty had a disparate-impact on older teachers. Id. at 690. To show the policy had a disparate-impact, the plaintiff compared the average age of tenured faculty ineligible for nontenured faculty teaching positions at the new college–45.8–with the average age of nontenured faculty who could still obtain such positions–34.3. Id. The college argued in response that “the overall impact of their faculty selection process was not discriminatory because the average age of the ‘new’ faculty was virtually the same as the average age of the ‘old’ faculty.” Id. at 691.
Leftwich held that the plaintiff's comparison of the average age of faculty ineligible for non-tenured positions at the new college with those who were eligible was an appropriate means of establishing disparate-impact. The plaintiff succeeded in making out a prima facie case because the comparison revealed that the average age of ineligible faculty was over forty while the average age of those eligible was under forty. Id.
Leftwich does not support the EEOC’s argument that a comparison to Allstate’s overall workforce, not subject to the rehire policy, is an appropriate method of establishing disparate-impact. In Leftwich, the college’s rehire policy created a
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subclass among the faculty members by reserving faculty positions at the new college for nontenured faculty. Id. at 689. The plaintiff then compared the average age of tenured faculty subject to the policy to nontenured faculty also subject to the policy. Leftwich therefore considered only an average age comparison made between faculty members subject to the college’s rehire policy, it did not rely on an average age comparison to the college’s general workforce.
Allstate’s rehire policy, on the other hand, did not create a subclass among employee-agents subject to the policy and therefore, Leftwich does not address the situation presented here. More generally, we conclude that comparing the average age of employee-agents subject to the rehire policy with the average age of Allstate’s overall workforce does not demonstrate disparate-impact. The difference in the average age between Allstate’s overall workforce and the employee-agents cannot possibly reveal how that policy affected older workers because the policy simply did not apply to the overall workforce. We therefore conclude that the EEOC’s average age analysis does not establish disparate-impact.
Nevertheless, the EEOC has established a prima facie case of disparate-impact because two of the EEOC’s statistical analyses demonstrate that the policy fell more harshly on older workers than younger workers.
CONCLUSION
For the foregoing reasons, we hold: (1) Allstate’s rehire policy is an employment policy under § 623(a)(2) and therefore can be challenged under a disparate-impact theory; and (2) the EEOC established a prima facie case of disparateimpact by demonstrating that the rehire policy served to deprive more older workers than younger workers of employment opportunities with Allstate. Accordingly, we affirm the district court.
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Our holding, however, is limited to the questions presented on this interlocutory appeal.
SHEPHERD, Circuit Judge, dissenting.
I would find that the EEOC’s challenge to the rehire policy falls under section 29 U.S.C. § 623(a)(1), not (a)(2), and is, therefore, not susceptible to a disparate impact claim. Here, the majority observes that Allstate had terminated all employeeagents as of June 30, 2000; that Allstate did not have a policy that restricted the rehire of its former employee-agents between June 2000 and September 2000; and that, during that three-month period, Allstate hired three former employee agents into nonagent positions. Ante at 2-3, 3 n.2. The facts, as stated by the majority, demonstrate that at the time Allstate put the rehire policy in place, the individuals affected by it were not Allstate employees.
I have been unable to find a single case that supports the majority’s conclusion that section 623(a)(2) applies when former employees challenge their former employer’s policy that came into existence after their termination. Rather, only employees may rely on either subjection of section 623(a)(2). Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1470 n.2 (8th Cir. 1996). The former Allstate employees affected by the rehire policy could only be applicants for employment, not employees, and, thus, the EEOC is limited to relying on section 623(a)(1) to challenge the policy. Id.; see Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 689-90 (8th Cir. 1983) (applying section 623(a)(1) where terminated professor, who was a faculty member of the college prior to transfer to state college system brought suit under the ADEA challenging his exclusion from the “new” college’s faculty); Gaskey v. Fulton Bellows, LLC, No. 3:05-CV-540, 2007 WL 869621, at *5 (E.D. Tenn. Mar. 20, 2007) (unpublished) (applying section 623(a)(1) to former employees’ claim that former employer’s refusal to rehire them had a disparate impact on older applicants in violation of the ADEA).
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In Leftwich, as here, the individuals impacted by the employer policy at issue were terminated prior to the inception of the challenged policy, and the policy purportedly restricted the individuals from obtaining another position with their former employer in violation of the ADEA. 702 F.2d at 689-90. This court, in discussing Leftwich, characterized it as a case “involving an applicant . . . .” City of Des Moines, 99 F.3d at 1470 n.2. It follows that the EEOC’s characterization of this case as one that involves the classification of Allstate employees in such a way that disqualifies them for rehire and is, thus, actionable under section 623(a)(2) fails. Instead, it is one in which the EEOC is challenging an employer’s policy that impacts potential applicants for employment. Accordingly, section 623(a)(1) applies.10
In view of this conclusion, the question becomes whether the EEOC can pursue a disparate impact claim under section 623(a)(1). Both the district court and the majority determined that Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), precludes the EEOC from doing so; the EEOC concedes this point. In City of Jackson, a plurality of the Court stated that section 623(a)(1) “does not encompass disparate-impact liability . . . ,” indicating that section 623(a)(2) does. Id. at 236 n.6.
10The ADEA defines “employee” as “an individual employed by any employer.” 29 U.S.C. § 630(f). As the EEOC points out, in the context of Title VII, the Supreme Court has found that the term “employees” includes former employees. Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997). The EEOC asserts that, because the ADEA defines employee in a similar manner, Robinson’s broad construction of the term applies to section 623(a)(2). However, the EEOC has offered no support for this position. Furthermore, while “[s]ection 623(a)(2) of the ADEA governs employer conduct with respect to ‘employees’ only, . . . the parallel provision of Title VII protects ‘employees or applicants for employment.’” Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1470 n.2 (8th Cir. 1996) (citing 29 U.S.C. § 623(a)(2); 42 U.S.C. § 2000e-2(a)(2)). Accordingly, the construction of section 623(a)(2) need not mirror that of the parallel Title VII provision. These key textual differences between the two provisions coupled with a complete lack of precedent for the EEOC’s position persuades me that the term “employees” in section 632(a)(2) does not include former employees.
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Justice O’Connor’s concurrence, joined by Justices Kennedy and Thomas, stated that they would find “that disparate impact claims are not cognizable under the ADEA.” Id. at 248 (O’Connor, J., concurring). Therefore, after City of Jackson, the source of disparate impact liability under section 623(a), if any, is subsection (a)(2) alone. Section 623(a)(1) claims, like this one, cannot establish liability on a disparate impact theory.11
In sum, the EEOC’s challenge to Allstate’s restriction on the rehire of former employees falls only under section 623(a)(1), a provision that does not allow recovery under a disparate impact theory of liability. Thus, the district court erred in partially granting the EEOC’s motion for partial summary judgment. I would reverse the district court and grant Allstate’s partial motion for summary judgment.
______________________________
11I note that this court’s implicit determination in Leftwich v. Harris-Stowe State Coll., 702 F.2d 686 (8th Cir. 1983) that a disparate impact analysis is applicable to section 623(a)(1), id. at 690, as well as this court’s statement in City of Des Moines that applicants may, pursuant to section 623(a)(1), bring disparate impact claims, 99 F.3d at 1470 n.2, have been abrogated by Smith v. City of Jackson, Miss., 544 U.S. 228 (2005).
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 </s> Case: 4:04-cv-01359-ERW Doc. #: 92 Filed: 09/08/08 Page: 1 of 1 PageID #: 1746
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No: 07-1559 Equal Employment Opportunity Commission,
Appellee v. Allstate Insurance Company,
Appellant -----------------------------Chamber of Commerce of the United States and Equal Employment Advisory Council,
Amici on behalf of Appellant
______________________________________________________________________________ Appeal from U.S. District Court for the Eastern District of Missouri - St. Louis (4:04-cv-01359-ERW)
______________________________________________________________________________ ORDER
Before LOKEN, Chief Judge, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON and SHEPHERD, Circuit Judges
Appellant Allstate Insurance Company’s Petition for Rehearing En Banc has been considered by the Court, and the petition is granted. It is further ordered that the court’s opinion and judgment of June 10, 2008 are hereby vacated.
September 08, 2008
Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________
/s/ Michael E. Gans

 </s> Case: 4:04-cv-01359-ERW Doc. #: 112 Filed: 09/14/09 Page: 1 of 8 PageID #: 1951

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

) CML ACTION NO. 4:04CV01359 ERW

v.

)

)

ALLSTATE INSURANCE COMPANY,

)

)

Defendant.

)

_________________________________)}

STIPULATED OlDER I. Introduction
On October 8, 2004, Plaintiff Equal Employment Opportunity Commission e'Commission") filed this action charging Defendant Allstate Insmance Company ("Defendant" or "Allstate'') with violating the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. §621 ~ ~· The Commission claimed that Defendant engaged in unintentional discrimination by implementing a policy restricting for a period of up to two years the reemployment of its employees whose employment contracts were terminated by Defendant's Preparing for the Future Group Reorganization and that this policy had an adverse impact on Defendant's employees who were age forty and over. This Stipulated Order ("Order'') is entered into by Defendant without admission that any of its acts, past or present, are in violation of any law; accordingly, the Order shall not constitute an admission, adjudication or finding on the merits of the allegations made in the Commission's complaint.
The parties now wish to resolve this lawsuit without the burden, expense, and delay of further litigation.

Case: 4:04-cv-01359-ERW Doc. #: 112 Filed: 09/14/09 Page: 2 of 8 PageID #: 1952
THEREFORE, upon the consent and stipulation of the parties, it is ORDERED and DECREED that:
II. Jurisdiction This Court has jurisdiction over the parties and the subject matter ofthis action.
III. Findings A. The purposes of the ADEA will be furthered by the entry of this Order. B. The tenns of this Order constitute a fair and equitable settlement of this action. The Court previously held that this case involves a question of controlling law on which there is a substantial ground for difference of opinion. A compromise settlement is appropriate and reasonable.
IV. Scope This Order covers all claims that Defendant failed to rehire because of their age employees whose employment contracts with Defendant were terminated as part of the Preparing for the Future Group Reorganization announced in November 1999 and results in a complete resolution of all claims raised in the EEOC's Complaint. EEOC hereby releases Defendant with respect to any and all such claims, except EEOC shall retain the right to seek enforcement ofthe provisions of this Order.
V. Term The term of this Order shall be three years from the date of its entry. During this period, the Court shall retain jurisdiction to enforce this Order.
VI. Promective Relief A. During the term of this Order, prior to adopting any new policy that limits the reemployment of former employees, or individuals employed at the time the policy is adopted, whose employment is terminated involuntarily in a reorganization program or reduction-in-force,
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Defendant shall determine whether the policy disqualifies for re-employment a disproportionate number of individuals who are age 40 and above, utilizing as a standard for disparate impact the Uniform Guidelines on Employee Selection Procedures, 29 C.P.R.§ 1607.4(D).
B. If the policy does disproportionately disqualify for re-employment individuals age 40 and over, Defendant will not implement such policy without first providing the Commission with 14 days written notice of its intent to implement the policy {as set forth in Section XI ofthis Order, "Reporting)," providing the Commission with a written statement of the reasons for the policy, a.lld giving the Commission a reasonable opportunity to meet and discuss the policy.
C. Any new policy that limits the re-employment of former employees, or individuals employed at the time the policy is adopted, must comply with the requirements of the ADEA.
VII. M9netary Remedy A. Defendant agrees to pay a total of $ 4.5 million {"Settlement Fund"). This Settlement Fund shall be paid to individuals who have been identified by the Commission in its sole discretion on Exhibit 1 {'~Eligible Claimants and Amount of Proposed Distribution"), in the amounts set forth on Exhibit 1, provided these individual amounts are approved by the Court under Section VIII{C) of this Order, and subject to the requirement of Section VII(C) of this Order. These individual amounts were determined by the Commission by the methodology described in Exhibit 1-A {"Monetary Distribution Methodology''). Of each individual's share, 75%.shall be deemed an amount in lieu of wages and benefits, and 25% shall be deemed interest.
No other benefits, including pension credits, are provided to the Eligible Claimants under this
Order or otherwise. B. Defendant's required contributions for FICA or Medicare shall not be paid from
the Settlement Fund.
3

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C. An Eligible Claimant shall not receive the monetary payment required under this section unless within 50 days after being sent notice that the Court has issued its Settlement Allocation Order pursuant to, and defined in, Section VIII(C) below, the Eligible Claimant provides to the Defendant, in the manner prescribed in the notice described in Section VIII(D) below, an executed Agreement and Release in the fonn set forth as Exhibit 2 ("Agreement and Release''). The parties, by written agreement, may accept an untimely release, provided the release is received by Defendant within one year of the Settlement Allocation Order issued under Section VIII(C).
D. Within 45 days after the Settlement Allocation Order issued under Section VIII(C), Defendant shall notify the Commission of the amount to be paid to each individual (and the amount of taxes withheld) based on the above provisions of this Section. Federal income taxes shall be withheld on the amount deemed in lieu of wages and benefits, based on a 25 % tax rate for each Eligible Claimant. State and local taxes shall be withheld as applicable.
E. Within 65 days after notice is issued under Section VIII(C), or within 21 days of Defendant's receipt of an Eligible Claimant's executed Agreement and Release, whichever is later, Defendant shall mail to each Eligible Claimant (or their estates or heirs) who enters into an Agreement and Release as required by Section VII(C), a check in the amount required by the Settlement Allocation Order, less applicable withholdings, along with a statement of the taxes withheld. Simultaneously, Defendant shall notify the Commission of the amounts paid and the amount of the withholdings (a document containing this information, such as an Excel spreadsheet, may be provided to satisfy this requirement). If any checks are returned or are not cashed, Defendant shall notify the Commission promptly so that the Commission may take further steps to reach those Eligible Claimants. If after 13 months from issuance of the
4

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Settlement Allocation Order under Section VIII(C) any funds are unable to be distributed as required by this section, they shall be distributed pro rata (based on the allocation approved by the Court in the Settlement Allocation Order) to Eligible Claimants who timely submitted a release and cashed settlement checks. These payments shall also be subject to the tax witbholdings required under this Order.
VIII. Notice To Eligible Qlaimants A. Within 14 days after the Court's approval of this Order, the Commission shall mail a notice substantially in the form attached as Exhibit C ("Notice to Eligible Claimants of Stipulated Order'') to each Eligible Claimant listed on Exhibit 1. This Notice will instruct Eligible Claimants that they may comment on or object to the Court, in writing, on the methodology for allocating the Settlement Fund or on whether an error was made in calculating their payments under the methodology described in Exhibit 1-A, and will provide such by the deadline by which any comments or objections must be mailed. Within the same 14-day period, the Commission shall provide Allstate with Social Security numbers and mailing addresses for the Eligible Claimants and such other information as necessary for Allstate to comply with its payment obligations under this Agreement. B. Any Eligible Claimant who wishes to comment or object to the methodology for allocating the Settlement Fund or on whether an error was made in the calculation of his or her payment under the methodology, must submit comments or objections to the Commission by certified mail, with a copy mailed to Defendant, postmarked on or prior to October 26, 2009 (the "Objection Deadline"). C. Within 14 days after the Objection Deadline, the Commission shall file with the Court all comments and objections received by the Commission pursuant to subsection (B), including comments and objections received after the Objection Deadline, along with the
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Commission's written position on each comment and objection, if any. Defendant may also file a written position on the comments and objections, provided Defendant's position is filed with the Court within the same 14-day period. Upon consideration of these written comments and objections, the Court shall issue an order (the "Settlement Allocation Order") that approves the individual allocations on Exhibit 1, corrects errors on Exhibit 1 that are brought to the Court's attention through the comment and objection process, or establishes a new methodology for distributing the Settlement Fund. However, the size of the Settlement Fund and Defendant's monetary obligations under this Order shall not be increased.
D. Within 21 days after entry of the Settlement Allocation Order, the Commission shall mail the Settlement Alloeation Order and the Agreement and Release to each Eligible Claimant listed on Exhibit 1. The Commission will instruct Eligible Claimants to send the executed Agreement and Release to Allstate (to its notice address provided herein) and will provide the deadline by which the Agreement and Release must be submitted to Allstate in order to receive the settlement payment.
IX. Training Within 6 months after this Order, Defendant shall instruct the Policy Committee of its Human Resources Department on Defendant's obligation under Section VI of this Order. In the next training on equal employment opportunity given to this Policy Committee, the training shall include a segment on Defendant's obligations under the ADEA and will address the issue of adverse impact. This training shall occur within 6 months after this Order.
X. Posting A. For 6 months immediately following this Order, Defendant shall post a copy of the notice included as Exhibit 4 (''Notice to Allstate Insurance Company Employees") where it
6

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can readily be observed by its Headquarters Human Resources staff and outside of Human Resources, at all locations where Defendant posts its notice required under 29 C.F.R. §1627.10.
B. Defendant shall continue to post the notice required by 29 C.F.R. §1627.10 in prominent and accessible places where it can readily be observed by all of its employees and applicants.
XI. Re.porting A. If required under Section VI(B), at least 14 days prior to adopting a policy described in Section VI, Defendant shall provide to the Commission a copy of the policy and a copy of all studies or a written description of all other actions taken by Defendant to determine whether or not the policy has a disproportionate impact upon current andlor former employees who are age 40 or over. B. Within 30 days of the completion of the training under Section IX, Defendant shall inform EEOC that the training was completed, the nature of the training, and the names and job titles ofparticipants. C. During the term of this Order, Defendant shall allow representatives of the Commission, within normal business hours and with reasonable notice, to review Defendant's compliance with Sections VI, IX, and X of this Order by inspecting and copying any relevant documents, interviewing relevant employees, and inspecting relevant portions of its business premises. If the Commission notifies Defendant that it needs additional information to review compliance with this Order or to investigate charges filed during the term of this Order concerning alleged age discrimination in the rehire of former employees, Defendant shall comply promptly with all reasonable requests, including those for machine-readable personnel data in a format agreed to by the parties, concerning its employees. Defendant shall be responsible for its costs associated with this monitoring.
7
.···.·<;''

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D. Nothing in this Order shall be construed to prohibit the Commission from processing any charge of discrimination which alleges a violation of the ADEA which occurred outside the Scope ofthis Order as defined in Section IV.
XII. Cgsts Each party shall bear its own costs and attorneys' fees for this action.
Xlll. Notices tQ Parties Notices that are required under this Order to the Commission shall be in writing and sent to: C. Felix Miller Equal Employment Opportunity Commission St. Louis District Office 1222 Spru.ce St., Room 8.100 St. Louis, Missouri 63103 Notices that are required to Defendant shall be in writing and sent to: Iris Chester Allstate Insurance Company 2775 Sanders Road, Suite F-5 Northbrook, Dlinois 60062 BY CONSENT:
So Ordered this 14th Day of September, 2009.
J.~'W'~
E. Ricliard Webber U.S. District Court Judge
8

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Defendant.

)

)

)

)

)

CNIL ACTION NO.

)

)

4:04CV01359 ERW

)

)

)

)

SETTLEMENT ALLOCATION ORDER This matter comes before the Court on the Parties' Joint Motion for Approval of Settlement Allocation (Dkt. #118). On September 14, 2009, this Court entered a Stipulated Order (Dkt. #112) which set forth the terms of the Parties' agreement to settle this action. In accordance with the Stipulated Order, notice of the Order was provided to each of the Eligible Claimants and an opportunity for each to provide the Court and the Parties with comments and objections to the distribution methodology for the monetary relief under the Stipulated Order (the "Distribution Plan"). The EEOC has submitted the comments and objections from Eligible Claimants and other former employee agents of Allstate who were not Eligible Claimants (Dkt. #114, #122, and #123), which the Court has reviewed and considered. The Court has further received and considered Allstate's Response to Claimants' Comments and Objections to Stipulated Order (Dkt. #115), EEOC's Responses to Objections and Comments to the Stipulated Order (Dkt. #116), and EEOC's Supplemental Responses to Objections and Comments to the Stipulated Order (Dkt. #117).

After receipt of the comments and objections, the Parties filed with this Court their Joint

Motion for Approval of Settlement Allocation, which: (1) made corrections to the allocation of

monetary relief based upon the identification of mistakes in the application of the Distribution

Plan; and (2) modified the Distribution Plan to address certain comments and objections made by

Eligible Claimants.

On December 4, 2009, a hearing was held on the Parties' Joint Motion for Approval of

Settlement Allocation. Notice of the hearing previously was provided to all Eligible Claimants,

and several Eligible Claimants appeared and participated in the hearing.

After consideration of the Parties' submissions, the arguments of the Parties at the

hearing, and the comments and objections of the Eligible Claimants and others, including those

comments and objections previously filed with the Court and those made orally at the hearing,

the Court finds:

I.

The amended Distribution Plan provides a fair and reasonable distribution of

monetary relief under the Stipulated Order and the objections to the contrary are not well

founded;

2.

Objections, including, among others, the adequacy of the relief provided by the

Stipulated Order, that the total amount of monetary relief, $4,500,000, is insufficient, and that

there is no admission of liability by Defendant, as well as all other objections, individually and

collectively, are not well founded on their merits and are beyond the scope of this proceeding;

WHEREFORE, the Court finds that the Parties' Joint Motion for Approval ofSettlement

Allocation provides a fair and reasonable allocation of the monetary relief provided by the

Stipulated Order, and accordingly:

2

1. GRANTS the Parties' Joint Motionfor Approval a/Settlement Allocation; 2. ORDERS the Parties to proceed with the distribution of monetary relief pursuant
to the Distribution Plan attached hereto as Exhibit 120a in the manner provided by the terms of the Stipulated Order.

~ay So Ordered this

of December, 2009.

S-~~Jt4~
RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

3

 </s> Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 1 of 17
CLOSED,ADR,TRCK2
U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:04−cv−01359−ERW

Equal Employment Opportunity Commission v. Allstate Insurance Company Assigned to: Honorable E. Richard Webber Cause: 29:623 Job Discrimination (Age)
Plaintiff

Date Filed: 10/07/2004 Date Terminated: 12/15/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by C. Felix Miller , Jr. EEOC 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314−539−7949 Fax: 314−539−7895 Email: felix.miller@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea G. Baran U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 400 State Avenue Suite 905 Kansas City, KS 66101 913−551−5848 Fax: 913−551−6957 Email: andrea.baran@eeoc.gov ATTORNEY TO BE NOTICED

Robert G. Johnson SEDEY HARPER, P.C. 2711 Clifton Avenue St. Louis, MO 63139 314−773−3566 Fax: 314−773−3615 Email: rjohnson@sedeyharper.com TERMINATED: 05/10/2007

Melvin David Kennedy THE LAW OFFICE OF MELVIN D. KENNEDY, LLC 2001 S. Big Bend Blvd. St. Louis, MO 63117 314−561−3241 Fax: 314−644−4303 Email: melvin.kennedyllc@gmail.com ATTORNEY TO BE NOTICED

V. Defendant Allstate Insurance Company

represented by Bredale Rucker KIRKLAND AND ELLIS 300 N. LaSalle Chicago, IL 60654 312−861−2000 Fax: 312−861−2200

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 2 of 17
LEAD ATTORNEY ATTORNEY TO BE NOTICED
C. Felix Miller , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald R. Livingston AKIN AND GUMP 1333 New Hampshire Avenue, N.W. Suite 400 Washington, DC 20036 202−887−4242 Fax: 202−887−4288 Email: dlivingston@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna M. Welch KIRKLAND AND ELLIS 300 N. LaSalle Chicago, IL 60654 312−861−2425 Fax: 312−861−2200 Email: dwelch@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan J. Oleson AKIN AND GUMP 1333 New Hampshire Avenue, N.W. Suite 400 Washington, DC 20036 202−887−4425 Fax: 202−887−4288 Email: noleson@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard C. Godfrey KIRKLAND AND ELLIS 300 N. LaSalle Chicago, IL 60654 312−861−2000 Fax: 312−861−2200 Email: rgodfrey@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sallie G. Smylie KIRKLAND AND ELLIS 300 N. LaSalle Chicago, IL 60654 312−861−2421 Fax: 312−861−2200 Email: ssmylie@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Khara A. Coleman KIRKLAND AND ELLIS 300 N. LaSalle Chicago, IL 60654 312−861−2000

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 3 of 17
Fax: 312−861−2200 Email: kharawashington@gmail.com TERMINATED: 07/09/2009 ATTORNEY TO BE NOTICED
Michael M. Godsy AEGIS PROFESSIONAL SERVICES − LAW PRACTICE GROUP 165 N. Meramec Suite 200 Clayton, MO 63105 (314) 454−9100 Fax: (314) 454−9110 Email: mgodsy@aegisps.com ATTORNEY TO BE NOTICED

Date Filed 10/07/2004
10/07/2004 11/22/2004 12/03/2004 12/06/2004 12/10/2004 12/13/2004
12/30/2004 12/30/2004 01/05/2005
01/11/2005
01/11/2005 01/11/2005

# Docket Text
1 COMPLAINT against defendant Allstate Insurance Company Waivers issued 1, Consents issued 2, Disclosure of Corporate Interest issued to Allstate Insurance Co., Jury Demand,, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet # 2 Original Filing Form)(CDD, ) (Entered: 10/08/2004)
WAIVER of Service issued defendant Allstate Insurance Company. filed by Equal Employment Opportunity Commission. (CDD, ) (Entered: 10/08/2004)
2 WAIVER OF SERVICE Returned Executed filed by Equal Employment Opportunity Commission Allstate Insurance Company waiver signed on 10/25/2004, answer due 12/27/2004. (Miller, C.) (Entered: 11/22/2004)
3 ENTRY of Appearance by Michael M. Godsy Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 12/03/2004)
4 CJRA ORDER (jgw). Judge Mary Ann L. Medler termed; Case reassigned to Judge E. Richard Webber for all further proceedings; (DJO) (Entered: 12/06/2004)
5 Consent MOTION for Extension of Time to File Answer re 1 Complaint, Consent Motion For Enlargement Of Time by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 12/10/2004)
Docket Text ORDER: Consent Motion for Enlargement of Time [doc. #5] is GRANTED. Defendant's Responsive Pleading to Plaintiff's Complaint shall be filed with this Court no later than December 30, 2004. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 12/13/2004)
6 ANSWER to Complaint by Allstate Insurance Company.(Godsy, Michael) (Entered: 12/30/2004)
7 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Defendant Allstate Insurance Company Parent companies: The Allstate Corporation, Subsidiaries: None, Publicly held company: None,. (Godsy, Michael) (Entered: 12/30/2004)
8 RULE 16 ORDER This case is assigned to Track: 2 Standard Joint Scheduling Plan due by 1/21/2005. Rule 16 Conference set for 1/28/2005 10:45 AM before Honorable E. Richard Webber.. Signed by Judge E. Richard Webber on 1/5/05. (CQL, ) (Entered: 01/05/2005)
Receipt # S2005−002958 in the amount of $75.00 for ATTORNEY ADM. FEE − PHV−Donna Welch, ATTORNEY ADM. FEE − PHV−Richard C. Godfrey, ATTORNEY ADM. FEE − PHV−Sallie Smylie on behalf of SONNENSCHEIN AND NATH. (CSW,) (Entered: 01/11/2005)
9 MOTION for Leave to Appear Pro Hac Vice Sallie Smylie by Defendant Allstate Insurance Company. (MCB) (Entered: 01/14/2005)
10 MOTION for Leave to Appear Pro Hac Vice Donna Welch by Defendant Allstate Insurance Company. (MCB) (Entered: 01/14/2005)

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01/11/2005 01/14/2005
01/18/2005 01/18/2005 01/19/2005 01/19/2005 01/19/2005 01/20/2005 01/25/2005 01/26/2005 01/26/2005
01/27/2005 01/28/2005
01/28/2005 01/28/2005 01/28/2005 01/31/2005
01/31/2005 03/07/2005

11 MOTION for Leave to Appear Pro Hac Vice Richard C. Godfrey by Defendant Allstate Insurance Company. (MCB) (Entered: 01/14/2005)
Docket Text ORDER: Verified Motions for Admission Pro Hac Vice [doc. #9, #10 and #11] are GRANTED. Attorneys Sallie Smylie, Donna M. Welch, and Richard C. Godfrey are admitted pro hac vice for the purpose of representing Defendnt in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 01/14/2005)
ORDER RECEIPT: (see receipt) Tue Jan 18 13:06:20 CST 2005 (CQL, ) (Entered: 01/18/2005)
ORDER RECEIPT: (see receipt) Tue Jan 18 13:13:23 CST 2005 (CQL, ) (Entered: 01/18/2005)
ORDER RECEIPT: (see receipt) Wed Jan 19 09:35:06 CST 2005 (GLF, ) (Entered: 01/19/2005)
Receipt # S2005−003420 in the amount of $25.00 for ATTORNEY ADM. FEE − PHV on behalf of LIVINGSTON, DONALD RAY. (CSW,) (Entered: 01/19/2005)
14 MOTION for Leave to Appear Pro Hac Vice Donald Ray Livingston by Defendant Allstate Insurance Company.(GLF) Receipt for fees S2005−03420. (Entered: 01/27/2005)
12 JOINT SCHEDULING PLAN by Plaintiff Equal Employment Opportunity Commission.. (Kennedy, Melvin) (Entered: 01/20/2005)
Receipt # S2005−003645 in the amount of $25.00 for ATTORNEY ADM. FEE − PHV on behalf of OLESON, NATHAN JOSHUA. (CSW,) (Entered: 01/25/2005)
13 MOTION for Leave to Appear Pro Hac Vice Nathan Joshua Oleson by Defendant Allstate Insurance Company. (MCB) (Entered: 01/26/2005)
Docket Text ORDER: Verified Motion for Admission Pro Hac Vice [doc. #13] is GRANTED. Nathan J. Oleson is admitted pro hac vice for the purpose of representing Defendant Allstate Insurance Company in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 01/26/2005)
ORDER RECEIPT: (see receipt) Thu Jan 27 10:05:33 CST 2005 (MCB, ) (Entered: 01/27/2005)
Docket Text ORDER: Verified Motion for Admission Pro Hac Vice [doc. #14] is GRANTED. Donald Ray Livingston shall be admitted pro hac vice for the purpose of representing Defendant Allstate Insurance Company in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 01/28/2005)
15 ENTRY of Appearance by Melvin D. Kennedy Plaintiff Equal Employment Opportunity Commission. (Kennedy, Melvin) (Entered: 01/28/2005)
ORDER RECEIPT: (see receipt) Fri Jan 28 16:09:09 CST 2005 (MCB, ) (Entered: 01/28/2005)
16 Minute Entry for proceedings held before Judge E. Richard Webber : Rule 16 Conference held on 1/28/2005. (proceedings started: 10:45.) (proceedings ended: 11:00.) (MCB) (Entered: 01/28/2005)
17 CASE MANAGEMENT ORDER This case is assigned to Track: 2(standard) Motion to Join Parties due by 3/28/2005. Discovery Completion due by 1/31/2006. ADR Future Reference 9/1/2005. Dispositive Motions due by 2/28/2006. Jury Trial set for 7/10/2006 08:30 AM in Courtroom 12S before Honorable E. Richard Webber. Pretrial Conference set for 6/30/2006 08:30 AM in In Chambers before Honorable E. Richard Webber. Pretrial Compliance due by 6/21/2006. Motion in Limine due by 6/26/2006. Signed by Judge E. Richard Webber on 1/31/2005. (JMW, ) (Entered: 01/31/2005)
ORDER RECEIPT: (see receipt) Mon Jan 31 16:21:37 CST 2005 (JMW, ) (Entered: 01/31/2005)
18 DEFENDANT'S INITIAL DISCLOSURES PURSUANT TO FED. R.CIV. P. 26(a)(1) and LOCAL RULE 3.01 filed Defendant Allstate Insurance Company. (Godsy, Michael) (Modified on 3/8/2005− entered as motion, now termed and counsel notified

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07/22/2005 07/22/2005 07/27/2005 07/27/2005 07/27/2005 08/05/2005
08/11/2005 08/11/2005 08/16/2005
08/18/2005 08/18/2005 08/19/2005 08/19/2005 08/22/2005 08/23/2005

as to filing discovery) (per BAB, BDC). (Entered: 03/07/2005)
19 MOTION to Bifurcate Trial and Discovery by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) Modified on 7/22/2005 − a proposed order regarding this motion has been sent by e−mail to the proposed orders inbox. (BDC). (Entered: 07/22/2005)
20 MEMORANDUM in Support of Motion re 19 MOTION to Bifurcate Trial and Discovery filed by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 07/22/2005)
21 Consent MOTION for Extension of Time to File Response/Reply as to 19 MOTION to Bifurcate Trial and Discovery Consent Motion For Extension Of Time To Respond to Plaintiff's Motion To Bifurcate by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 07/27/2005)
Docket Text ORDER: Consent Motion for Extension of Time [doc. #21] is GRANTED. Defendant's Response to Plaintiff's Motion to Bifurcate Trial and Discovery [doc. #19] shall be filed with this Court no later than August 5, 2005. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 07/27/2005)
ORDER RECEIPT: (see receipt) Wed Jul 27 16:22:20 CDT 2005 (MCB, ) (Entered: 07/27/2005)
22 MEMORANDUM in Opposition re 19 MOTION to Bifurcate Trial and Discovery Defendant Allstate's Opposition to Plaintiff's Motion To Bifurcate Trial And Discovery filed by Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit Plaintiff EEOC's Answers And Objections To Defendant's First Interrogtories To Plaintiff)(Rovak, Stephen) (Entered: 08/05/2005)
23 REPLY to Response to 19 MOTION to Bifurcate Trial and Discovery filed by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) Modified on 8/12/2005 (JMW, ), changed document from Memorandum in Support of Motion to Reply to Response to Motion. (Entered: 08/11/2005)
24 SUPPLEMENTAL re 19 MOTION to Bifurcate Trial and Discovery, 23 Memorandum in Support of Motion by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Miller, C.) (Entered: 08/11/2005)
Docket Text ORDER: Counsel for all parties shall appear before this Court on August 23, 2005, at 10:00 a.m. for an in−court hearing on Plaintiff's Motion to Bifurcate Trial and Discovery [doc. #19]. So Ordered by Judge E. Richard Webber. (BAB) Modified on 8/17/2005− Sent by regular mail to: Donna M. Welch KIRKLAND AND ELLIS 200 E. Randolph Drive Chicago, IL 60601 (BDC). (Entered: 08/16/2005)
25 MOTION to Amend/Correct 17 Case Management Order,, by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 08/18/2005)
26 MEMORANDUM in Support of Motion re 25 MOTION to Amend/Correct 17 Case Management Order,, filed by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 08/18/2005)
27 MOTION to Compel Production Of Documents and Responses To Interrogatories by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 08/19/2005)
28 MEMORANDUM in Support of Motion re 27 MOTION to Compel Production Of Documents and Responses To Interrogatories filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Miller, C.) (Entered: 08/19/2005)
Docket Text ORDER: All pending motions will be addressed at the Motion Hearing previously scheduled for Tuesday, August 23, 2005, at 10:00 a.m. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/22/2005)
***REMARK I handed Donna Welch a copy of the docket text order filed yesterday, August 22, 2005, in open court. (MCB) (Entered: 08/23/2005)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 6 of 17

08/23/2005 08/23/2005
08/23/2005 09/06/2005 09/15/2005 09/15/2005 09/23/2005 09/23/2005
01/10/2006 01/10/2006

29 Minute Entry for proceedings held before Judge E. Richard Webber : In Court Hearing held on 8/23/2005. Parties present for hearing on pending motions: 1) Pltf's Motion to Bifurcate #19; 2) Deft's Motion to Amend/Correct #25; 3) Pltf's Motion to Compel #27. Arguments of counsel heard. Order to follow. (Court Reporter or FTR Gold Operator initials:G. Beilsmith.) (proceedings started: 10:05.) (proceedings ended: 11:30.) (MCB) (Entered: 08/23/2005)
30 ORDER IT IS HEREBY ORDERED that Plaintiff's Motion to Bifurcate Trial and Discovery [doc. #19] is DENIED. IT IS FURTHER ORDERED that Defendant's Motion to Amend Case Management Order [doc. #25] is GRANTED in part. Deft shall be permitted to depose up to 20 individuals and is granted leave to file a request to depose additional persons should it become necessary. IT IS FURTHER ORDERED that Plaintiff's Motion to Compel Production of Documents and Responses to Interrogatories [doc. #27] is GRANTED. Deft shall provide full responses to the interrogatories and document requests no later than September 9, 2005. Signed by Judge E. Richard Webber on August 23, 2005. (MCB) (Entered: 08/23/2005)
ORDER RECEIPT: (see receipt) Tue Aug 23 17:33:38 CDT 2005 (MCB, ) (Entered: 08/23/2005)
31 ORDER REFERRING CASE to Alternative Dispute Resolution. This case is referred to: mediation Designation of Lead Counsel: C. Felix Miller, Jr. ADR Completion Deadline due by 12/1/2005. Designation of Neutral due by 9/30/2005. ADR Conference Schedule due by 9/30/2005. Signed by Judge E. Richard Webber on September 6, 2005. (MCB) (Entered: 09/06/2005)
32 Joint MOTION to Amend/Correct To Modify Case Management Order And Order Referring Case To Alternative Dispute Resolution by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 09/15/2005)
Docket Text ORDER: Counsel for all partie shall appear before this Court on September 23, 2005, at 8:30 a.m. for a Hearing on the Joint Motion to Modify Case Management Order and Order Referring Case to Alternative Dispute Resolution [doc. #32]. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/15/2005)
33 Minute Entry for proceedings held before Judge E. Richard Webber : In Court Hearing held on 9/23/2005. Parties present for hearing on joiont motion to modify the Case Management Order [doc #32]. Counsel heard. Amended Case Management Order to follow. (Court Reporter or FTR Gold Operator initials:G. Beilsmith.) (proceedings started: 8:30.) (proceedings ended: 8:35.) (MCB) (Entered: 09/23/2005)
34 AMENDED CASE MANAGEMENT ORDER: Granting doc.# 32 , the Joint MOTION to Modify Case Management Order And Order Referring Case To Alternative Dispute Resolution filed by Equal Employment Opportunity Commission. Discovery Completion due by 4/12/2006. Non−Dispositive Motions due by 4/24/2006. Dispositive Motions due by 4/28/2005. Jury Trial set for 11/6/2006 08:30 AM before Honorable E. Richard Webber (This is a three week docket). Pretrial Conference set for 10/27/2005 10:30 AM In Chambers before Honorable E. Richard Webber. Pretrial Compliance due by 10/18/2006. Motion in Limine due by 10/23/2006. (see order for additional details) Signed by Judge E. Richard Webber on 9/23/2005. (BDC) (Entered: 09/23/2005)
35 MOTION for Protective Order Motion for Entry Of Stipulated Protective Order And To Determine Information−Sharing Provisions Of Protective Order by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 01/10/2006)
36 MEMORANDUM in Support of Motion re 35 MOTION for Protective Order Motion for Entry Of Stipulated Protective Order And To Determine Information−Sharing Provisions Of Protective Order Defendant Allstate Insurance Company's Memorandum In Support Of Motion For Entry Of Protective Order filed by Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit Stipulation And Order Governing Protection And Exchange Of Confidential Material# 2 Exhibit Stipulation And Order Governng Protection And Exchange Of Confidential Material# 3 Exhibit Allstate Insurance Company's Responses And Objections To Plaintiff's First Set of Requests For Production of Documents)(Godsy, Michael) (Entered: 01/10/2006)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 7 of 17

01/10/2006
01/18/2006
01/23/2006 04/10/2006 04/11/2006
04/26/2006 04/28/2006 04/28/2006 05/01/2006 06/07/2006 06/07/2006 06/07/2006 06/07/2006 06/07/2006

37 MEMORANDUM in Support of Motion re 35 MOTION for Protective Order Motion for Entry Of Stipulated Protective Order And To Determine Information−Sharing Provisions Of Protective Order Defendant Allstate Insurance Company's Memorandum In Support Of Motion For Entry Of Protective Order filed by Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit Stipulation And Order Governing Protection And Exchange Of Confidential Material# 2 Exhibit Stipulation and Order Governing Protection And Exchange Of Confidential Material# 3 Exhibit Allstate Insurance Company's Responses And Objections To Plaintiffs' First Set Of Requests For Production Of Documents# 4 Exhibit Letter)(Godsy, Michael) THIS DOCUMENT IS THE SAME AS DOCUMENT #36 − EXHIBITS HAVE BEEN RE−ORGANIZED. Modified on 1/10/2006 (BAK, ). (Entered: 01/10/2006)
38 MEMORANDUM in Opposition re 35 MOTION for Protective Order Motion for Entry Of Stipulated Protective Order And To Determine Information−Sharing Provisions Of Protective Order filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit EXHIBIT A# 2 Declaration of C. Felix Miller)(Miller, C.) (Entered: 01/18/2006)
39 STIPULATION AND ORDER GOVERNING PROTECTION AND EXCHANGE OF CONFIDENTIAL MATERIAL (See Stipulation and Order for specifics.) Signed by Judge E. Richard Webber on 1/23/2006. (JMW) (Entered: 01/23/2006)
40 Joint MOTION to Amend/Correct 34 Case Management Order − Amended, Terminate Motions,,,, Joint Motion To Modify Amended Case Management Order by Plaintiff Equal Employment Opportunity Commission. (Godsy, Michael) (Entered: 04/10/2006)
Docket Text ORDER: Joint Motion to Amend Case Management Order [doc. #40] is GRANTED. The parties shall complete all discovery no later than June 2, 2006. Dispositive Motions shall be filed no later than June 19, 2006. ADR Referral deadline is extended to July 31, 2006. All other dates set forth in the Case Mangement Order remain as previously scheduled. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 04/11/2006)
41 MOTION for Leave to Appear Pro Hac Vice Khara Coleman by Defendant Allstate Insurance Company. (BAK, ) (Entered: 04/26/2006)
Docket Text ORDER: Motion for Leave to Appear Pro Hac Vice [doc. #41] is GRANTED. Khara A. Coleman shall be admitted pro hac vice for the purpose of representing Defendant in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 04/28/2006)
Receipt # S2006−006967 in the amount of $25.00 for ATTORNEY ADM. FEE − PHV on behalf of COLEMAN, KHARA. (CSW,) (Entered: 05/02/2006)
ORDER RECEIPT: (see receipt) Mon May 1 09:56:18 CDT 2006 (MCB, ) (Entered: 05/01/2006)
42 MOTION for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17)(PTL, St. Louis) (Entered: 06/07/2006)
43 SUPPLEMENTAL re 42 MOTION for Summary Judgment Plaintiff's Appendix of Exhibits Submitted in Support of Plaintiff's Motion for Partial Summary Judgment as to Liability by Plaintiff Equal Employment Opportunity Commission. (PTL, St. Louis) (Entered: 06/07/2006)
44 MOTION for Leave to Exceed Page Limit and Suggestions in Support by Plaintiff Equal Employment Opportunity Commission. (PTL, St. Louis) (Entered: 06/07/2006)
45 STATEMENT of Material Facts re 42 MOTION for Summary Judgment Plaintiff's Statement of Uncontroverted Material Facts filed by Plaintiff Equal Employment Opportunity Commission. (PTL, St. Louis) (Entered: 06/07/2006)
46 MEMORANDUM in Support of Motion re 42 MOTION for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (PTL, St. Louis) (Entered: 06/07/2006)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 8 of 17

06/07/2006 06/07/2006 06/07/2006
06/07/2006
06/13/2006 06/13/2006 06/14/2006 06/14/2006
06/14/2006 06/14/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006 07/12/2006

47 NOTICE by Plaintiff Equal Employment Opportunity Commission re 42 MOTION for Summary Judgment Notice of Filing Document Under Seal (PTL, St. Louis) (Entered: 06/07/2006)
48 MOTION to Seal Document 42 MOTION for Summary Judgment Motion to File Documents Under Seal by Plaintiff Equal Employment Opportunity Commission. (PTL, St. Louis) (Entered: 06/07/2006)
Docket Text ORDER: Motion for Leave to Exceed Page Limit [doc. #44] is GRANTED. Memorandum in Support of Motion for Summary Judgment in excess of page limitation is accepted for filing by this Court. Motion to Seal Certain Exhibits [doc. #48] is GRANTED. Exhibits set forth in said Motion shall be filed under seal with this Court. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non−registered attorney on 6/8/2006 (BAK, ). (Entered: 06/07/2006)
49 SEALED EXHIBITS Including: 1)Zuzich Exhibit 4 to Deposition of Karleen Zuzichand AND 2)Hard Copies of Electronic Information Provided by Allstate as part of its Answers to Interrogatory No. 14, each supporting doc.# 42 , the MOTION for Summary Judgment of Plaintiff Equal Employment Opportunity Commission. (BDC) (Entered: 06/07/2006)
50 Joint MOTION for Extension of: Deadline for Filing Motions to Compel by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 06/13/2006)
51 Joint MOTION to Consolidate Dispositive Motion Briefing by Defendant Allstate Insurance Company. (Godsy, Michael) Modified on 6/14/2006 (BAB). (Entered: 06/13/2006)
Docket Text ORDER: Motion for Extension of Deadline for Filing Motions to Compel [doc. #50] is GRANTED. Any Motions to Compel shall be filed with this Court no later than July 14, 2006. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/14/2006)
Docket Text ORDER: Motion to Consolidate Dispositive Motion Briefing [doc. #51] is GRANTED. Defendant's Consolidated Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment [doc. #42] shall be filed no later than June 30, 2006, consisting of no more than 25 pages. Plaintiff's Consolidated Opposition to Defendant's Motion for Summary Judgment and Reply in Support of its Motion for Summary Judgment shall be filed no later than July 24, 2006, consisting of no more than 25 pages. Defendant's Reply in Support of its Motion for Summary Judgment, consisting of no more than 15 pages, shall be filed no later than August 1, 2006. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/14/2006)
ORDER RECEIPT: (see receipt) Wed Jun 14 16:21:19 CDT 2006 (JMW, ) (Entered: 06/14/2006)
ORDER RECEIPT: (see receipt) Wed Jun 14 16:22:39 CDT 2006 (JMW, ) (Entered: 06/14/2006)
52 MOTION for Summary Judgment by Defendant Allstate Insurance Company. (Welch, Donna) (Entered: 06/30/2006)
53 MEMORANDUM in Support of Motion re 52 MOTION for Summary Judgment with Separate Appendix of Exhibits filed by Defendant Allstate Insurance Company. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13)(Welch, Donna) (Entered: 06/30/2006)
54 SUPPLEMENTAL re 53 Memorandum in Support of Motion, Proposed Order re Motion for Partial Summary Judgment by Defendant Allstate Insurance Company. (Welch, Donna) (Entered: 06/30/2006)
55 STATEMENT of Material Facts re 52 MOTION for Summary Judgment Defs Consolidated Statement of Unconvtroverted Material Facts and Opposition to EEOC's Statement of Facts filed by Defendant Allstate Insurance Company. (Welch, Donna) (Entered: 06/30/2006)
56 Joint MOTION for Extension of: Deadline for Filing Motions to Compel by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 07/12/2006)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 9 of 17

07/13/2006 07/21/2006 07/28/2006 07/28/2006 07/28/2006
08/01/2006 08/02/2006 08/02/2006
08/18/2006 08/18/2006
08/25/2006 08/25/2006

Docket Text ORDER: Joint Motion for Extension of Deadline for Filing Motions to Compel [doc. #56] is GRANTED. Any Motions to Compel shall be filed with this Court no later than July 28, 2006. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non−registered attorney on 7/13/2006 (BAK, ). (Entered: 07/13/2006)
57 Consolidated Memorandum in Respect to the Parties' Cross Motions for Partial Summary Judgmentre: 52 Motion for Summary judgment by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) Modified on 7/24/2006 (MCB). (Entered: 07/21/2006)
58 MOTION to Compel Response to Interrogatories by Defendant Allstate Insurance Company. (Welch, Donna) (Entered: 07/28/2006)
59 MEMORANDUM in Support of Motion re 58 MOTION to Compel Response to Interrogatories filed by Defendant Allstate Insurance Company. (Welch, Donna) (Entered: 07/28/2006)
60 MOTION to Amend/Correct Case Management Order by Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit Cirillo Transcript# 2 Exhibit Drapeau Transcript# 3 Exhibit Finley Transcript# 4 Exhibit Finley1 Transcript# 5 Exhibit Green Transcript# 6 Exhibit Guthrie Transcript# 7 Exhibit Sheff Transcript# 8 Exhibit Sheff1 Transcript# 9 Exhibit West Transcript# 10 Exhibit Part 1 Supp Interrogatories# 11 Exhibit Part 2 Supp Interrogatories# 12 Exhibit Part 3 Supp Interrogatories)(Godsy, Michael) (Entered: 07/28/2006)
61 REPLY to Response to Motion re 52 MOTION for Summary Judgment filed by Defendant Allstate Insurance Company. (Welch, Donna) (Entered: 08/01/2006)
62 MOTION for Extension of Time to File Response/Reply as to 60 MOTION to Amend/Correct Case Management Order, 58 MOTION to Compel Response to Interrogatories by Plaintiff Equal Employment Opportunity Commission. (Johnson, Robert) (Entered: 08/02/2006)
Docket Text ORDER re 62 MOTION for Extension of Time to File Response/Reply as to 60 MOTION to Amend/Correct Case Management Order, 58 MOTION to Compel Response to Interrogatories by Plaintiff Equal Employment Opportunity Commission. (Johnson, Robert) filed by Equal Employment Opportunity Commission, IT IS HEREBY ORDERED that plaintiff's motion for extension of time to file response/reply (#62) is GRANTED. Plaintiff shall file its response to defendant's motion to compel (#58) and defendant's motion to amend/correct the case management order (#60) no later than August 20, 2006.. Signed by Judge E. Richard Webber on 8−2−2006. (MLS, ) (Entered: 08/02/2006)
63 MEMORANDUM in Opposition re 60 MOTION to Amend/Correct Case Management Order PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO MODIFY CASE MANAGEMENT ORDER filed by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 08/18/2006)
64 MEMORANDUM in Opposition re 58 MOTION to Compel Response to Interrogatories PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL RESPONSES TO INTERROGATORIES filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit EX−A Answers−Interrogatories# 2 Exhibit EX−B Fourth Document Request# 3 Exhibit EX−C Letter of April 21 2006# 4 Exhibit EX−D Letter of April 28 2006# 5 Exhibit EX−E ANSWERS −2ND −SECOND−Interrogatories# 6 Exhibit EX−F ANSWERS−INTERROGATORIES)(Miller, C.) (Entered: 08/18/2006)
Docket Text ORDER: Counsel for all parties shall appear before this Court on September 1, 2006, at 11:00 a.m. for an in−court hearing on Defendant's Motion to Compel [doc. #58] and Defendant's Motion to Amend Case Management Order [doc. #60]. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/25/2006)
Docket Text ORDER: By agreement of all parties and this Court, the Motion Hearing of September 1, 2006 is reset to September 7th at 1:30 p.m. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/25/2006)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 10 of 17

08/28/2006 08/28/2006 09/07/2006
09/08/2006
09/25/2006 10/19/2006 10/19/2006 10/20/2006 10/25/2006 11/01/2006 11/28/2006 11/28/2006

65 REPLY re 60 MOTION to Amend/Correct Case Management Order to Establish Pretrial Claimant Deposition Procedure filed by Defendant Allstate Insurance Company. (Welch, Donna) Modified on 8/29/2006 (MCB). (Entered: 08/28/2006)
66 REPLY re 58 MOTION to Compel Response to Interrogatories filed by Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit E# 2 Exhibit F# 3 Exhibit G# 4 Exhibit H# 5 Exhibit I)(Welch, Donna) Modified on 8/29/2006 (MCB). (Entered: 08/28/2006)
67 Minute Entry for proceedings held before Judge E. Richard Webber : Motion Hearing held on 9/7/2006 re 58 MOTION to Compel Response to Interrogatories filed by Allstate Insurance Company and 60 MOTION to Amend/Correct Case Management Order filed by Allstate Insurance Company. Issues/Arguments heard. Order to issue. (Court Reporter or FTR Gold Operator initials: P. Dunn Wecke) (FTR Gold yes or no: no) (proceedings started: 1:30 p.m.) (proceedings ended: 2:30 p.m.) (JMW) (Entered: 09/08/2006)
68 ORDER − IT IS HEREBY ORDERED that Defendant's Motion to Compel is GRANTED and Plaintiff's objections are OVERRULED. Plaintiff shall have 30 days to respond to all interrogatories. IT IS FURTHER ORDERED that the Defendant's Motion to Modify the Case Management Order is held in abeyance pending parties filing a Joint Proposed Amended Case Management Order no later than September 25, 2006. IT IS FURTHER ORDERED that the November 6, 2006 trial setting is VACATED. The Court expects to rule on Plaintiff's Motion for Summary Judgment [doc. #42] and Defendant's Motion for Summary Judgment [doc. #52] in early October. Signed by Judge E. Richard Webber on 9/8/2006. (JMW) (Entered: 09/08/2006)
69 Joint Proposed Modified Case Management Order Related to Trial by Defendant Allstate Insurance Company. (Welch, Donna) Modified on 9/26/2006 (MCB). (Entered: 09/25/2006)
70 MEMORANDUM AND ORDER:... IT IS HEREBY ORDERED that Plaintiff's Motion for Partial Summary Judgment as to Liability, doc.# 42 is GRANTED in part and DENIED in part (see order for details). IT IS FURTHER ORDERED that Defendant's Motion for Partial Summary Judgment, doc.# 52 is DENIED. Signed by Judge E. Richard Webber on 10/19/2006. (BDC) (Entered: 10/19/2006)
Docket Text ORDER: Counsel for all parties shall be available for a Telephone Conference on October 20, 2006, at 10:30 a.m. to discuss the Joint Proposed Case Management Order [doc. #69] submitted to the Court. The Court will initiate this conference with counsel on the date and time stated above. Prior to the hearing, counsel for each party shall notify chambers of the identity of counsel to be contacted. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 10/19/2006)
Docket Text ORDER: By agreement of all parties an this Court, the Telephone Conference originally scheduled for this date is continued to October 25, 2006, at 9:00 a.m. The Court will initiate this conference with counsel on the date and tme stated above. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 10/20/2006)
71 Minute Entry for proceedings held before Judge E. Richard Webber : Telephone Status Conference held on 10/25/2006 re: depositions of claimants. (Court Reporter or FTR Gold Operator initials:D. Kriegshauser.) (FTR Gold yes or no: no.) (proceedings started: 9:00.) (proceedings ended: 9:23.) (BAK, ) (Entered: 10/25/2006)
72 AMENDED CASE MANAGEMENT ORDER Dispositive Motions due by 1/2/2007. Jury Trial set for 3/19/2007 08:30 AM in Courtroom 12S before Honorable E. Richard Webber. Pretrial Conference set for 3/9/2007 01:30 PM in In Chambers before Honorable E. Richard Webber. Pretrial Compliance due by 2/28/2007. Motion in Limine due by 3/9/2007.. Signed by Judge E. Richard Webber on 11/1/06. (BAK, ) (Entered: 11/01/2006)
73 MOTION for Certificate of Appealability for Interlocutory Appeal by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 11/28/2006)
74 MEMORANDUM in Support of Motion re 73 MOTION for Certificate of Appealability for Interlocutory Appeal filed by Defendant Allstate Insurance Company. (Godsy, Michael) (Entered: 11/28/2006)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 11 of 17

12/05/2006 12/08/2006 12/13/2006
01/04/2007 01/23/2007 02/13/2007 02/14/2007 02/14/2007 02/15/2007 03/14/2007 03/15/2007 03/15/2007 03/23/2007
03/26/2007 05/09/2007 05/09/2007

75 MEMORANDUM in Opposition re 73 MOTION for Certificate of Appealability for Interlocutory Appeal Plaintiff's Memorandum In Opposition To Defendant's Motion To Certify For Interlocutory Appeal filed by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 12/05/2006)
Docket Text ORDER: Counsel for all parties shall appear before this Court on December 13, 2006, at 3:00 p.m. for an in−court hearing on Defendant's Motion for Certificate of Appealabiity [doc. #73]. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 12/08/2006)
76 Minute Entry for proceedings held before Judge E. Richard Webber : Motion Hearing held on 12/13/2006 re 73 MOTION for Certificate of Appealability for Interlocutory Appeal filed by Allstate Insurance Company,. the Court hears arguments, Order to Issue (Court Reporter or FTR Gold Operator initials:D Kriegshauser.) (FTR Gold yes or no: no.) (proceedings started: 3:10.) (proceedings ended: 4:10.) (LLW, ) (Entered: 12/14/2006)
77 MEMORANDUM AND ORDER − IT IS HEREBY ORDERED that Defendant's Motion for Interlocutory Appeal 73 is GRANTED. IT IS FURTHER ORDERED that the current action is stayed, pending the outcome of the appeal. Signed by Judge E. Richard Webber on 1/4/07. (BAK, ) (Entered: 01/04/2007)
78 ORDER of USCA Regarding: Petition for Interlocutory Appeal USCA Appeal #: 07−8002 The appellant's motion for an extension of time within which to respond to this Court's order entered on Janaury 22, 2007, is granted to 2/14/07.(MCB) (Entered: 01/23/2007)
Receipt # S2007−004154 in the amount of $100.00 for ATTORNEY ADM. FEE − PHV on behalf of RUCKER, BREDALE. (CSW,) (Entered: 02/13/2007)
79 MOTION for Leave to Appear Pro Hac Vice Bredale Rucker (Filing fee $100) by Defendant Allstate Insurance Company. (BAK, ) (Entered: 02/14/2007)
Docket Text ORDER: Motion for Leave to Appear Pro Hac Vice [doc. #79] is GRANTED. Bredale Rucker shall be admitted pro hac vice for the purpose of representing Defendant in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 02/14/2007)
ORDER RECEIPT: (see receipt) Thu Feb 15 09:42:46 CST 2007 (JMW, ) (Entered: 02/15/2007)
80 ORDER of USCA USCA Appeal #: 07−8002. The petition for permission of Allstate Insurance Company to take an interlocutory appeal pursuant to 28 USC Section 1292(b) has been considered by the court and is granted. The clerk will regularly docket the appeal.(BAK, ) (Entered: 03/14/2007)
81 NOTICE OF CROSS APPEAL as to 70 Memorandum & Order, by Defendant Allstate Insurance Company. Filing fee $ 455, receipt number 1044124.(Godsy, Michael) (Entered: 03/15/2007)
82 Initial Notification and or Briefing Schedule from USCA for 81 Notice of Cross Appeal filed by Allstate Insurance Company, USCA Appeal Number: 07−1559 Transcript due: 4/23/07 (Attachments: # 1)(BAK, ) (Entered: 03/15/2007)
83 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 81 Notice of Cross Appeal. Notice of Appeal filed on 03/15/2007. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE. SUBMIT FORM A & B TO EIGHTH CIRCUIT CLERKS OFFICE(DLT,) (Entered: 03/23/2007)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Mon Mar 26 12:21:18 CDT 2007 (Appeals, Clerk 1) (Entered: 03/26/2007)
84 MOTION to Withdraw Motion To Withdraw Robert G. Johnson As Counsel For Plaintiff by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 05/09/2007)
Docket Text ORDER: Motion to Withdraw [doc. #84] is GRANTED. Robert G. Johnson shall be termed as attorney of record for Plaintiff in this matter. So Ordered

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 12 of 17

05/10/2007 06/27/2007
07/20/2007 09/07/2007
09/10/2007 09/10/2007 09/17/2007 11/16/2007
11/19/2007 06/10/2008 06/10/2008 06/23/2008 08/19/2008
08/28/2008 09/08/2008
09/08/2008
10/21/2008

by Judge E. Richard Webber. (BAB) (Entered: 05/09/2007)
ORDER RECEIPT: (see receipt) Thu May 10 08:21:47 CDT 2007 (JMW, ) (Entered: 05/10/2007)
85 ORIGINAL TRANSCRIPT (Pilot) proceedings of Motion Hearing held on 12/13/06 before Judge E. Richard Webber. Court Reporter: D. Kriegshauser. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 06/28/2007)
***REMARK, Printed original transcripts 85 sent to the USCA. (DLT,) (Entered: 07/20/2007)
Docket Text ORDER: On January 4, 2007, this Court stayed this matter pending Appeal. The parties shall file a Status Report with this Court advising of the status of the appeal no later than September 21, 2007. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/07/2007)
ORDER RECEIPT: (see receipt) Mon Sep 10 09:15:47 CDT 2007 (KLH, ) (Entered: 09/10/2007)
Set Deadline: Response to Court Deadline due by 9/21/07 (KLH, ) (Entered: 09/10/2007)
86 STATUS REPORT [Joint] by Allstate Insurance Company. (Welch, Donna) (Entered: 09/17/2007)
Docket Text ORDER: The parties shall file a Status Report with this Court advising of the status of the appeal no later than November 26, 2007. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non−registered attorney on 11/19/2007 (BAK). (Entered: 11/16/2007)
87 STATUS REPORT (Joint) by Allstate Insurance Company. (Welch, Donna) (Entered: 11/19/2007)
88 OPINION from USCA re 81 Notice of Cross Appeal : USCA Appeal #: 07−1559 AFFIRM (BAK) (Entered: 06/10/2008)
89 JUDGMENT of USCA USCA Appeal #: 07−1559 (BAK) (Entered: 06/10/2008)
90 STATUS REPORT [JOINT] by Allstate Insurance Company. (Welch, Donna) (Entered: 06/23/2008)
Docket Text ORDER: The parties shall file a Joint Report with this Court advising of the status of Allstate's Petition for Rehearing, if any, no later than August 29, 2008. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non−registered attorney on 8/20/2008 (BAK). (Entered: 08/19/2008)
91 STATUS REPORT JOINT by Equal Employment Opportunity Commission, Allstate Insurance Company. (Miller, C.) (Entered: 08/28/2008)
92 ORDER of USCA USCA Appeal #: 07−1559. Appellant Allstate Insurance Company's Petition for Rehearing En Banc has been considered by the Court, and the petition is granted. It is further ordered that the court's opinion and judgment of 6/10/08 are hereby vacated. (BAK) (Entered: 09/08/2008)
93 JUDGMENT of USCA USCA Appeal #: 07−1559. On the Court's own motion, the order of 3/9/07 in Miscellaneaus Matter No. 07−8002 granting Allstate's Petition for permission to take an Interlocutory Appeal under 28 USC § 1292(b) is vacated. Accordingly, this appeal is dismissed for lack of jurisdiction (BAK) (Entered: 09/08/2008)
94 AMENDED DOCUMENT by Plaintiff Equal Employment Opportunity Commission. Third Amended Case Management Order (Proposed). (Miller, C.) (Entered: 10/21/2008)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 13 of 17

10/21/2008 10/21/2008
10/23/2008
10/30/2008 10/30/2008 10/30/2008 10/30/2008 11/05/2008

95 Joint MOTION to Amend/Correct Joint Motion to Modify Amended Case Management Order and for a Pretrial Conference by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 10/21/2008)
Docket Text ORDER: Joint Motion to Amend Case Management Order [doc. #95] is GRANTED. The Court shall review the Proposed Plan submitted by the parties [doc. #94] and shall hold a Status Conference on said matter on November 3, 2008, at 1:00 p.m. in the Chambers of Judge E. Richard Webber. (BAB) Notification sent to non−registered attorney on 10/22/2008 (BAK). (Entered: 10/21/2008)
Docket Text ORDER: Due to a scheduling conflict with this Court's calendar, the Status Conference regarding the Proposed Scheduling Plan submitted by the parties shall be held on November 3, 2008, at 12:30 p.m., not 1:00 p.m. as previously scheduled. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non−registered attorney on 10/24/2008 (BAK). (Entered: 10/23/2008)
96 MANDATE of USCA as to 81 Notice of Cross Appeal filed by Allstate Insurance Company USCA #:07−1559(BAK) (Entered: 10/30/2008)
ORDER RECEIPT: (see receipt) Thu Oct 30 10:00:05 CDT 2008 (Kirkland, Beth) (Entered: 10/30/2008)
Docket Text ORDER: By agreement of all parties and this Court, the Scheduling Conference in this matter will be held on November 3, 2008, at 1:00 p.m. in the Chambers of Judge E. Richard Webber. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 10/30/2008)
ORDER RECEIPT: Docket Text Order filed 10/30/08 mailed to parties not electronically notified (see receipt) Thu Oct 30 11:29:03 CDT 2008 (Hisaw, Kari) (Entered: 10/30/2008)
97 THIRD AMENDED CASE MANAGEMENT ORDER: Deadlines as to the First Six Claimants: Discovery Completion due by 8/1/2009. Non−Dispositive Motions due by 8/12/2009. ADR Future Reference 5/1/2009. Dispositive Motions due by 8/15/2009. Jury Trial set for 11/2/2009 08:30 AM before Honorable E. Richard Webber. Pretrial Conference set for 10/23/2009 10:30 AM before Honorable E. Richard Webber. Pretrial Compliance due by 10/14/2009. Motion in Limine due by 10/19/2009. (See Order for additional discovery deadlines). ORDER RELATING TO CLAIMANTS 7−12: Claimants 7−12 − No later than July 1, 2009, the parties shall designate the identity of claimants 7−12 for trial. By October 15, 2009, the parties shall have completed all supplementary discovery for claimants 7−12. By December 15, 2009, the parties shall identify expert witnesses and depose expert witnesses no later than January 15, 2010, when all discovery will be completed. Trial by Jury as to claimants 7−12 shall be placed on a three−week docket beginning February 8, 2010, with the Final Pretrial Conference to be held on January 29, 2010, at 8:30 a.m. ORDER RELATING TO CLAIMANTS 13−18: Claimants 13−18 − No later than February 1, 2010, the parties shall designate the identity of claimants 13−18 for trial. By March 15, 2010, the parties shall have completed all supplementary discovery for claimants 13−18. By May 14, 2010, the parties shall identify expert witnesses and depose expert witnesses no later than June 18, 2010, when all discovery will be completed. Trial by Jury as to claimants 13−18 shall be placed on a three−week docket beginning July 12, 2010, with the Final Pretrial Conference to be held on July 2, 2010, at 8:30 a.m. ORDER RELATING TO CLAIMANTS 19−22: Claimants 19−22 − No later than August 2, 2010, the parties shall designate the identity of claimants 19−22 for trial. By September 1, 2010, the parties shall have completed all supplementary discovery for claimants 19−22. By November 1, 2010, the parties shall identify expert witnesses and depose expert witnesses no later than December 1, 2010, when all discovery will be completed. Trial by Jury as to claimants 19−22 shall be placed on a three−week docket beginning January 17, 2011, with the Final Pretrial Conference to be held on January 7, 2011, at 8:30 a.m. REMAINING CLAIMANTS: No later than July 15, 2010, the parties shall identify by classes of six, the remaining claimants, and the Court shall enter a subsequent Case Management Order for trial of all remaining claimants. The parties shall have 10 days from the date of this Order to make any proposed changes to the dates set forth in this Case Management Order Signed by Honorable E. Richard Webber on 11/5/08. (BAK) Modified on 11/5/2008 (BAK). (Additional attachment(s) added on 11/5/2008: # 1 Order) (BAK). (Entered: 11/05/2008)

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11/05/2008 11/13/2008 12/03/2008
12/03/2008 04/07/2009 04/22/2009 04/22/2009
05/04/2009 05/07/2009
05/08/2009 05/11/2009 05/18/2009 05/19/2009 05/20/2009 06/02/2009 06/02/2009

ORDER RECEIPT: (see receipt) Wed Nov 5 15:20:37 CST 2008 (Kirkland, Beth) (Entered: 11/05/2008)
98 ENTRY of Appearance by Andrea G. Baran for Plaintiff Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 11/13/2008)
99 THIRD AMENDED CASE MANAGEMENT ORDER Discovery Completion (as to the first six (6) claimants) due by 8/1/2009. ADR Future Reference 5/1/2009. Dispositive Motions due by 8/15/2009. Jury Trial set for 11/2/2009 08:30 AM in Courtroom 12S before Honorable E. Richard Webber. This is a three week docket. Pretrial Conference set for 10/23/2009 10:30 AM in Courtroom 12S before Honorable E. Richard Webber. Pretrial Compliance due by 10/13/2009. Motion in Limine due by 10/18/2009. SEE ORDER FOR FURTHER DETAILS.Signed by Honorable E. Richard Webber on December 3, 2008. (MCB) (Entered: 12/03/2008)
ORDER RECEIPT: (see receipt) Wed Dec 3 16:33:57 CST 2008 (Berg, Melanie) (Entered: 12/03/2008)
100 NOTICE of Change of Address filed by Donna M. Welch (Welch, Donna) (cc: OSU) (Entered: 04/07/2009)
101 MOTION for Protective Order Concerning EEOC's Rule 30(b)(6) Notice by Defendant Allstate Insurance Company. (Coleman, Khara) (Entered: 04/22/2009)
102 MEMORANDUM in Support of Motion re 101 MOTION for Protective Order Concerning EEOC's Rule 30(b)(6) Notice filed by Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Coleman, Khara) (Entered: 04/22/2009)
103 RESPONSE to Motion re 101 MOTION for Protective Order Concerning EEOC's Rule 30(b)(6) Notice filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Interrogatory excerpts)(Kennedy, Melvin) (Entered: 05/04/2009)
104 MOTION for Extension of Time to File Response/Reply as to 101 MOTION for Protective Order Concerning EEOC's Rule 30(b)(6) Notice, 102 Memorandum in Support of Motion, 103 Response to Motion by Defendant Allstate Insurance Company. (Attachments: # 1 Text of Proposed Order Agreed Order For Extension of Time)(Coleman, Khara) (Entered: 05/07/2009)
Docket Text ORDER: Motion for Extension of Time [doc. #104] is GRANTED. Defendant's Reply to Plantiff's Response in Opposition relating to the pending Motion for Protective Order shall be filed no later than May 18, 2009. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/08/2009)
ORDER RECEIPT: Docket Text Order filed 5/8/09 mailed to non−electronic parties (see receipt) Mon May 11 08:52:44 CDT 2009 (Hisaw, Kari) (Entered: 05/11/2009)
105 MOTION for Extension of Time to File Response/Reply as to 101 MOTION for Protective Order Concerning EEOC's Rule 30(b)(6) Notice by Defendant Allstate Insurance Company. (Coleman, Khara) (Entered: 05/18/2009)
Docket Text ORDER: Motion for Extension of Time [doc. #105] is GRANTED. Defendant's Reply to Plantiff's Response in Opposition relating to the pending Motion for Protective Order shall be filed no later than June 1, 2009. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/19/2009)
ORDER RECEIPT: (see receipt) Wed May 20 11:40:25 CDT 2009 (Berg, Melanie) (Entered: 05/20/2009)
106 MOTION to Stay Proceedings by Defendant Allstate Insurance Company. (Coleman, Khara) (Entered: 06/02/2009)
Docket Text ORDER: Motion to Stay Proceedings [doc. #106] is GRANTED. This matter is stayed up to and including June 22, 2009, at which time the parties shall file a Joint Stipulation for the Court's approval or Defendant shall file a Reply to the pending Motion for Protective Order. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/02/2009)

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06/03/2009 06/22/2009 06/23/2009
06/23/2009 07/01/2009 07/08/2009 07/09/2009 07/10/2009 07/10/2009 07/13/2009 08/12/2009 08/13/2009 08/26/2009 08/27/2009 09/11/2009
09/11/2009 09/14/2009 09/14/2009 09/16/2009

ORDER RECEIPT: Docket Text Order filed 6/2/09 mailed to non−electronic parties (see receipt) Wed Jun 3 09:04:12 CDT 2009 (Hisaw, Kari) (Entered: 06/03/2009)
107 Joint MOTION for Extension of Time to File Joint Stipulation ;Extension to file the following: Joint Stipulation ;Proposed extension date July 10, 2009 by Defendant Allstate Insurance Company. (Coleman, Khara) (Entered: 06/22/2009)
Docket Text ORDER: Joint Motion for Extension of Time [doc. #107] is GRANTED. The Court has been advised that the parties have reached a settlement in this matter. All pending motions are DENIED as moot and the trial settings as to all claimants are VACATED. Counsel shall file, no later than July 10, 2009, a Joint Stipulation of Dismissal for the Court's approval. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/23/2009)
***REMARK −− Copy of Docket Text Order mailed to Bredale Rucker, Kirkland and Ellis, 300 N. LaSalle, Chicago, IL 60654 this date. (MGK) (Entered: 06/23/2009)
108 ADR COMPLIANCE REPORT by Neutral: David Rotman. Date of Conference: 5/5/09 and 5/15/09. Participated in good faith? Yes. Did the parties achieved a settlement? Yes. (KLH) (Entered: 07/02/2009)
109 MOTION to Withdraw as Counsel by Khara Coleman by Defendant Allstate Insurance Company. (Coleman, Khara) (Entered: 07/08/2009)
Docket Text ORDER: Motion to Withdraw [doc. #109] is GRANTED. Khara Coleman shall be termed as counsel of record for Defendant in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 07/09/2009)
ORDER RECEIPT: (see receipt) Fri Jul 10 11:42:54 CDT 2009 (Douglas, Ronald) (Entered: 07/10/2009)
Docket Text ORDER: By agreement of all parties and this Court, counsel shall file, no later than August 14, 2009, a Joint Stipulation of Dismissal for the Court's approval. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 07/10/2009)
ORDER RECEIPT: (see receipt) Mon Jul 13 09:39:05 CDT 2009 (Berg, Melanie) (Entered: 07/13/2009)
Docket Text ORDER: By agreement of all parties and this Court, counsel shall file, no later than August 28, 2009, a Joint Stipulation of Dismissal for the Court's approval. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/12/2009)
ORDER RECEIPT: (see receipt) Thu Aug 13 09:59:06 CDT 2009 (Berg, Melanie) (Entered: 08/13/2009)
Docket Text ORDER: Counsel shall file, no later than September 11, 2009, a Joint Stipulation of Dismissal for the Court's approval. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/26/2009)
ORDER RECEIPT: Docket Text Order filed 8/26/09 mailed to non−electronic parties (see receipt) Thu Aug 27 07:47:00 CDT 2009 (Hisaw, Kari) (Entered: 08/27/2009)
110 Joint MOTION to Approve Consent Judgment by Plaintiff Equal Employment Opportunity Commission, Defendant Allstate Insurance Company. (Attachments: # 1 Stipulated Order, # 2 Exhibit 1, # 3 Exhibit 1−A, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4)(Miller, C.) (Entered: 09/11/2009)
111 MEMORANDUM in Support of Motion re 110 Joint MOTION to Approve Consent Judgment filed by Plaintiff Equal Employment Opportunity Commission, Defendant Allstate Insurance Company. (Miller, C.) (Entered: 09/11/2009)
112 STIPULATED ORDER granting 110 Joint MOTION to Approve Consent Judgment. Signed by Honorable E. Richard Webber on 9/14/09. ((KLH, original mailed to Attorney Felix Miller per chambers instruction) (Entered: 09/16/2009)
113 NOTICE TO ELIGIBLE CLAIMANTS OF STIPULATED ORDER. (KLH, original mailed to Attorney Felix Miller per chambers instruction) (Entered: 09/16/2009)
ORDER RECEIPT: (see receipt) Wed Sep 16 08:31:48 CDT 2009 (Hisaw, Kari) (Entered: 09/16/2009)

Case: 4:04-cv-1359 As of: 06/05/2017 03:16 PM CDT 16 of 17

09/16/2009 09/16/2009
09/16/2009 11/09/2009
11/09/2009 11/09/2009 11/24/2009 11/24/2009 11/24/2009 11/25/2009

ORDER RECEIPT: (see receipt) Wed Sep 16 08:32:48 CDT 2009 (Hisaw, Kari) (Entered: 09/16/2009)
Docket Text ORDER: The Court has approved the Joint Motion for Approval of Stipulated Order [doc. #110]. After receipt of any comments or objections from claimants, the parties shall submit a Joint Motion for Approval of Settlement Allocation Order no later than November 27, 2009, and appear before this Court on December 4, 2009, at 10:00 a.m. for final Court approval in this matter. At the December 4th Hearing, the Court will address the comments and objections filed by claimants, if any. The parties shall notify the claimants of this Hearing. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/16/2009)
***REMARK−− Copy of DTO dated 9/16/09 mailed to non−electronic party: Bredale Rucker this date. (MGK) (Entered: 09/16/2009)
114 NOTICE Objections and Comments: by Plaintiff Equal Employment Opportunity Commission re 112 Order (Attachments: # 1 Exhibit Ex. 1 − Thomas P. Allison, # 2 Exhibit Ex. 2 − James Anthony Beard, # 3 Exhibit Ex. 3 − Deborah S. Becker, # 4 Exhibit Ex. 4 − Colin T. Bent, # 5 Exhibit Ex. 5 − Montell B. Berry, # 6 Exhibit Ex. 6 − James T. Bever, # 7 Exhibit Ex. 7 − Paul R. Cobb, # 8 Exhibit Ex. 8 − Craig K. Crease, # 9 Exhibit Ex. 8 − Craig Crease Supp., # 10 Exhibit Ex. 9 − Sylvia Crews − Kelly, # 11 Exhibit Ex. 10 − Dwight F. English, # 12 Exhibit Ex. 11 − Ronald W. Harper, # 13 Exhibit Ex. 12 − Larry W. Hice, # 14 Exhibit Ex. 13 − John M. Hlohinec, # 15 Exhibit Ex. 14 − Charmaine A. Horvath, # 16 Exhibit Ex. 15 − Michael P. Kearney, # 17 Exhibit Ex. 16 − Joseph J. Lee, # 18 Exhibit Ex. 17 − Nathan R. Littlejohn II, # 19 Exhibit Ex. 18 − Nora Marin, # 20 Exhibit Ex. 19 − Craig Millison, # 21 Exhibit Ex. 20 − Sebastian D. Moceri, # 22 Exhibit Ex. 22 − Edwin T. Murray, # 23 Exhibit Ex. 23 − Chester W. Nowak, # 24 Exhibit Ex. 24 − Christopher L. Perkins, # 25 Exhibit Ex. 25 − Gary Peterson, # 26 Exhibit Ex. 26 − James P. Pilchak, # 27 Exhibit Ex. 27 − Paula J. Reinerio, # 28 Exhibit Ex. 28 − Herbert Stan Ricks, # 29 Exhibit Ex. 29 − Gene R. Romero, # 30 Exhibit Ex. 30 − Ronald J. Rubin, # 31 Exhibit Ex. 31 − Barry M. Sanford, # 32 Exhibit Ex. 32 − Sheldon Sheff, # 33 Exhibit Ex. 33 − Paul L. Shirley, # 34 Exhibit Ex. 34 − Lawrence J. Simms, # 35 Exhibit Ex. 35 − David W. Smith, # 36 Exhibit Ex. 36 − Wanda G. E.Tatum, # 37 Exhibit Ex. 21 − James E. Moorehead, # 38 Exhibit Ex. 40 − Joe Alley, # 39 Exhibit Ex. 37 − John W. Wittman, # 40 Exhibit Ex. 38 − Ralph J. Wolverton, # 41 Exhibit Ex. 39 − Manuel B. Zuniga, Sr., # 42 Exhibit Ex. 41 − Robert Wright)(Miller, C.) (Entered: 11/09/2009)
115 NOTICE re 114 Notice Objections and Comments: by Plaintiff Equal Employment Opportunity Commission, filed by Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit A−Claimant Comments and Objections Chart)(Welch, Donna) Modified text on 11/10/2009 (KLH). (Entered: 11/09/2009)
116 NOTICE EEOC Responses to Claimants' Comments and Objections: by Plaintiff Equal Employment Opportunity Commission re 112 Order (Miller, C.) (Entered: 11/09/2009)
117 SUPPLEMENTAL re 115 Memorandum, Supplemental Responses To Objections And Comments To The Stipulated Order by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibit 1 − Charge of Discrimination, # 2 Exhibit Exhibit 2 − Complaint)(Miller, C.) (Entered: 11/24/2009)
118 Joint MOTION for Approval of Settlement Allocation by Plaintiff Equal Employment Opportunity Commission, Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit Exhibit 1 − Monetary Distribution Corrected, # 2 Exhibit Exhibit 2 − Monetary Distribution Methodology)(Miller, C.) Modified text on 11/25/2009 (KLH). (Entered: 11/24/2009)
119 MEMORANDUM in Support of Motion re 118 Joint MOTION for Approval of Settlement Allocation filed by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) Modified text on 11/25/2009 (KLH). (Entered: 11/24/2009)
120 Joint MOTION to Substitute Exhibit 1−A re 118 Joint MOTION for Approval of Settlement Allocation by Plaintiff Equal Employment Opportunity Commission, Defendant Allstate Insurance Company. (Attachments: # 1 Exhibit Exhibit 1−A − Amended Monetary Distribution Methodology)(Miller, C.) Modified on 11/30/2009 (BAB). (Entered: 11/25/2009)

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11/30/2009 12/01/2009 12/03/2009 12/03/2009 12/04/2009
12/15/2009 12/16/2009 12/16/2009
01/13/2010 01/13/2010 01/14/2010
01/14/2010

121 Docket Text ORDER: Motion for Substitution of Exhibit 120 is GRANTED. Exhibit 1−A, Amended Monetary Distribution Methodology, shall be substituted for the incorrect Exhibit attached to the Joint Motion for Settlement Allocation 118 . So Ordered by Judge E. Richard Webber. (BAB) (Entered: 11/30/2009)
ORDER RECEIPT: (see receipt) Tue Dec 1 09:29:48 CST 2009 (Berg, Melanie) (Entered: 12/01/2009)
122 SUPPLEMENTAL SUPPLEMENTAL NOTICE OF OBJECTIONS AND COMMENTS by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 42, # 2 Exhibit 43)(Miller, C.) (Entered: 12/03/2009)
123 SUPPLEMENTAL SECOND SUPPLEMENTAL NOTICE OF OBJECTIONS AND COMMENTS by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 44)(Miller, C.) (Entered: 12/03/2009)
124 Minute Entry for proceedings held before Honorable E. Richard Webber: Motion Hearing held on 12/4/2009 re: 118 Joint MOTION for Approval of Settlement Allocation filed by Equal Employment Opportunity Commission, Allstate Insurance Company. Parties heard. Order to follow. (Court Reporter or FTR Gold Operator initials:C. Simpson.) (FTR Gold yes or no: no.) (RJD) (Entered: 12/04/2009)
125 SETTLEMENT ALLOCATION ORDER. Signed by Honorable E. Richard Webber on 12/15/09. (RJD) (Entered: 12/15/2009)
ORDER RECEIPT: (see receipt) Wed Dec 16 08:06:35 CST 2009 (Hisaw, Kari) (Entered: 12/16/2009)
126 TRANSCRIPT proceedings of Motion Hearing held on December 4, 2009 before Judge E. Richard Webber. Court Reporter/Transcriber Christine A. Simpson, Telephone number (314) 244−7989. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/6/2010. Redacted Transcript Deadline set for 1/19/2010. Release of Transcript Restriction set for 3/16/2010. (RJD) (Entered: 12/16/2009)
127 MOTION to Amend/Correct 125 Memorandum & Order, Terminate Case Plaintiff EEOC's Motion for Modification of Settlement Allocation Order by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 01/13/2010)
128 MEMORANDUM in Support of Motion re 127 MOTION to Amend/Correct 125 Memorandum & Order, Terminate Case Plaintiff EEOC's Motion for Modification of Settlement Allocation Order filed by Plaintiff Equal Employment Opportunity Commission. (Miller, C.) (Entered: 01/13/2010)
129 ORDER IT IS HEREBY ORDERED that upon review of the pleadings in this matter, Plaintiff's Motion will be granted. The Court finds that the correct amount to be distributed to Mr. Pilchak pursuant to the Distribution Plan is $61,550, rather than the amount indicated in the Monetary Distribution (doc. #118a) and according, amends the Monetary Distribution to reflect that amount. Signed by Honorable E. Richard Webber on January 14, 2010. (MCB) (Entered: 01/14/2010)
ORDER RECEIPT: (see receipt) Thu Jan 14 16:09:34 CST 2010 (Berg, Melanie) (Entered: 01/14/2010)

 </s> Allstate's Rehire Policy Adversely Affected Older Agents; EEOC Receiv...

http://www.eeoc.gov/press/10-19-06.html

The U.S. Equal Employment Opportunity Commission

IMMEDIATE RELEASE October 19, 2006

Contact:

Robert G. Johnson Regional Attorney (314) 539-7910

C. Felix Miller Senior Trial Attorney (314) 539-7949

ALLSTATE’S REHIRE POLICY ADVERSELY AFFECTED OLDER AGENTS; EEOC RECEIVES FAVORABLE RULING
Court Says Jury Should Decide Whether Policy was Reasonable or Unlawful
ST. LOUIS – A federal court ruled today in a nationwide lawsuit that Allstate Insurance Company’s one-year moratorium on rehiring its former sales agents had an adverse impact on older agents, the U.S. Equal Employment Opportunity Commission (EEOC) announced.
Judge E. Richard Webber, of the U.S. District Court for the Eastern District of Missouri in St. Louis, granted the EEOC’s motion for summary judgment on the issue of whether Allstate’s rehire policy affected workers 40 years of age or older disproportionately.
The lawsuit, filed under the Age Discrimination in Employment Act (ADEA) which prohibits discrimination against persons over 40 years of age, now will be heard by a jury to decide whether the rehire policy falls under an exception to the ADEA. According to that exception, any action based on a “reasonable factor other than age” is not unlawful.
The EEOC charged in its lawsuit that in 2000 Allstate terminated its sales agents, offered to make them independent contractors, and refused to rehire them in other positions as employees for one year. Because more than 90% of the agents were 40 years of age or older, the EEOC said that the rehire policy violated the ADEA.
Judge Webber decided that the EEOC, “has provided sufficient evidence to show a disparate impact on the protected group” of agents 40 years of age or older. Allstate argued that the court should dismiss the case without a trial because its rehire policy had no disparate impact and was based on a reasonable factor other than age. Judge Webber denied the company’s motion and ordered that a jury would decide the reasonableness issue.
“This decision is an important landmark in the further development of age discrimination law,” said Robert Johnson, the EEOC regional attorney for the St. Louis District. “Since the Supreme Court ruled last year that the ADEA does extend to disparate impact cases, this is one of the first court decisions applying that ruling to a new case.”
Felix Miller, senior trial attorney for the EEOC, said, “Even when there is no intentional age discrimination, an employer violates the ADEA if its policy has an adverse impact on older workers and the policy was not based on a reasonable factor other than age. We fully expect to be able to prove to a jury that Allstate’s policy was unreasonable.”
This lawsuit is the second national lawsuit filed by the EEOC concerning Allstate’s 2000 reorganization from employee agents to what the company considered independent contractors. In 2001, the EEOC filed suit claiming that Allstate unlawfully required its agents to release any employment discrimination claims if they wished to continue working as agents after the reorganization. In that first lawsuit, brought in U.S. District Court in Philadelphia, the court held that the release requirement was unlawful retaliation, but the case awaits further rulings before final resolution.
The EEOC is responsible for enforcing the nation’s laws prohibiting employment discrimination based on race, color, gender (including sexual harassment and pregnancy), religion, national origin, age, disability and retaliation. Further information about the EEOC is available on its web site at its web site at www.eeoc.gov.
This page was last modified on October 19, 2006.

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[CONTENT] Oct. 7, 2004 | St. Louis District | EEOC | Allstate Insurance Company | the U.S. District Court | the Eastern District | Missouri ||| Allstate | the age of 40 | the Age Discrimination | ADEA ||| EEOC | Allstate ||| EEOC | Allstate | 40 years of age and older ||| EEOC | Allstate | 40 years of age and older ||| EEOC ||| 1999 | Allstate | Reorganization Plan ||| the Reorganization Plan | Allstate | 2000 ||| one year ||| EEOC | Allstate ||| June 2006 | October 2006 | E. Richard Webber | Allstate | EEOC ||| EEOC | Allstate ||| EEOC | Allstate ||| 458 ||| 2d 980 | 2006 ||| Jan. 2007 | Allstate ||| ERW | 2007 | WL 38675 | E.D. | Jan. 4, 2007 ||| two | 1 | Allstate | 2 | EEOC ||| June 10, 2008 | Eighth Circuit | Myron H. Bright | Allstate | ADEA | EEOC ||| 528 | 1042 | 8th Cir. 2008 ||| September 8, 2008 | the Eighth Circuit | Allstate's Petition for Rehearing En Banc | the June 10, 2008 ||| That same day | the Eighth Circuit |||  ||| Sept. 11, 2009 | Stipulated Order ||| Sept. 14, 2009 | Webber ||| Allstate | age 40 ||| 40 or older | Allstate | EEOC | 14 days | EEOC ||| Allstate | ADEA ||| Allstate ||| Allstate | $4.5 million ||| EEOC | $4.5 million ||| three years ||| Webber | a Settlement Allocation Order | Dec. 15, 2009 ||| The Settlement Allocation Order | Distribution Plan | the Stipulated Order ||| Jan. 14, 2010 | Webber ||| The three year [SUMMARY] On Oct. 7, 2004, the St. Louis District office of the EEOC brought this suit against Allstate Insurance Company, a major insurance provider, in the U.S. District Court for the Eastern District of Missouri. The complaint alleged that Allstate's rehire policy disproportionately and adversely impacted workers over the age of 40, in violation of the Age Discrimination in Employment Act (ADEA). The EEOC also brought a disparate treatment claim, alleging that Allstate refused to rehire certain former employees because of their age. The EEOC sought to permanently enjoin Allstate from discriminating on the basis age against individuals 40 years of age and older. The EEOC also wanted the court to order that Allstate implement policies, practices, and programs providing equal employment opportunities for individuals 40 years of age and older. Finally, the EEOC sought back wages and liquidated damages for adversely affected employees. 

In 1999, Allstate implemented a Reorganization Plan, which eliminated all employee-agent positions and terminated the employment contracts of its employee-agents. In connection with the Reorganization Plan, Allstate implemented a rehire moratorium policy in 2000. Under the policy, former employee-agents who were subject to the Reorganization Plan were ineligible for rehire in non-agent positions for a period of one year after their termination, or after all severance benefits had been received. The EEOC alleged that the rehire moratorium policy had disparate impact on former employee-agents who were members of the protected age group and that Allstate engaged in disparate treatment of such members of the protected age group.

Both sides filed motions for partial summary judgment in June 2006, and in October 2006 District Judge E. Richard Webber denied Allstate's motion but granted in part the EEOC's motion. The court held that although no material issue of fact existed as to the EEOC's prima face case of disparate impact, Allstate had provided sufficient evidence that the challenged employment policy was adopted based on reasonable factors other than age. Since the EEOC had the ultimate burden of showing that Allstate's reasons for the policy were unreasonable, and had provided sufficient evidence of unreasonableness, the court held that question was not appropriate for summary judgment. 458 F. Supp. 2d 980 (E.D. Mo. 2006).   

In Jan. 2007, Allstate was given leave in the district court to file an interlocutory appeal, at which point the case was stayed pending the result of that appeal. No. 4:04CV01359 ERW, 2007 WL 38675 (E.D. Mo. Jan. 4, 2007). Allstate appealed on two questions of law: (1) whether Allstate’s rehire policy is an “employment policy”
which can be challenged under a disparate impact theory of discrimination; and (2)
whether the statistics proffered by the EEOC and adopted by the district court
establish disparate impact as a matter of law. On June 10, 2008, Eighth Circuit Judge Myron H. Bright answered both questions in the affirmative, holding that Allstate's rehire policy could be challenged under ADEA and that the EEOC's statistical evidence established a prima facie case that the rehire policy had a disparate impact. 528 F.3d 1042 (8th Cir. 2008). 

However, on September 8, 2008, the Eighth Circuit granted Allstate's Petition for Rehearing En Banc and vacated the June 10, 2008 judgment. That same day, the Eighth Circuit dismissed the appeal for lack of jurisdiction and the case went back to district court. 

After proceedings resumed in the district court, there was additional discovery. On Sept. 11, 2009, the parties filed a joint motion to approve the parties' proposed Stipulated Order resolving all claims in this action. On Sept. 14, 2009, District Judge Webber issued a Stipulated Order containing the terms of the parties' settlement agreement. 

With respect to injunctive relief, Allstate agreed that before adopting any new policy limiting the re-employment of former employees whose employment was terminated involuntarily as part of a reorganization or reduction-in-force, it will determine whether such a policy disproportionately affects individuals who are age 40 and above. If the policy does disproportionately impact those 40 or older, Allstate agreed to refrain from implementing the policy until it gives the EEOC 14 days written notice of its implementation, provides a list of reasons for the policy, and gives reasonable opportunity to meet and discuss with the EEOC. Additionally, Allstate agreed that any new policy would comply with the requirements of the ADEA. However, there was no admission of liability by Allstate.

With respect to monetary damages, Allstate agreed to pay a total of $4.5 million to individuals affected by the rehire policy. The settlement agreement required that the EEOC provide notice to all eligible claimants, giving them a chance to comment on or object to the methodology for allocating the $4.5 million settlement fund. The agreement specified that the court would retain jurisdiction over the case for three years.

Following the notice and comment period, Judge Webber issued a Settlement Allocation Order on Dec. 15, 2009. The Settlement Allocation Order approved of the proposed Distribution Plan, stating that it was a fair and reasonable allocation of the monetary relief provided under the Stipulated Order, and rejected all of the claimants' objections.

On Jan. 14, 2010, Judge Webber finalized the settlement. The three year period of the court's jurisdiction passed without further litigation, and the case is now closed. 