FILED

IN THE UNITED STAT,E~S~D_....!.STRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

OLEMRIKG,HUA.$E,LDWIS.TDROICf~TBCINO8URT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff,

) ~
CIVIL ACTION NO 01 C 4427

and

MARION G. TOWNSON,

Judge Joan B. Gottschall

Plaintiff-lntervenor, ) .

)

Magistrate Judge Morton Denlow

)

INTERNATIONAL PROFIT

)

ASSOCIATES, INC.,

Defendant.

)....~’ ¯

COMPLAINT

Now comes Plaintiff-Intervenbr Marion G..Townson ("Townson"), by and through her

attorney Edward J. Moran, and for her i2omplaint a-gainst Defendant International Profit

Associates, Inc. ("IPA"), states as follows: 1. Jurisdiction of this Court is invoked..!~ursuant to 28 U.S.C. Section 1331 and 28
U.S.C. Section 1343 as presenting questions of o~ginal federal jurisdiction under the provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C~ S~ction 2000e et seq, and Title I of the Civil

Rights Act of 1991, 42 U.S.C. Section 1981a. . :. " Venue of this Court for this action.jg invoked pursuant to 28 U.S,C. Section 1391
in that a substantial part of the events or commissions giving rise to this action and the unlawful

practices alleged herein occurred in the Northern.District of Illinois.

3. Plaintiff Equal Employment Opport~!ty Commission (hereinafter "EEOC") is the agency of the Unites States of America charged vci~.~e administration, interpretation, and

enforcement of Title VII of the Civil Rights Act ofi964, as amended, 1991, and is expressly authorized to bring this action pursuant to Section~..~6(f)(1) and (3) of that statute.
4. On June 12, 2001, the EEOC filed.ttti-slaction against Defendant IPA. The Complaint filed by the EEOC alleges defendant vig.iated Title VII of the Civil Rights Act of 1991,

42 U.S.C. Section 1981a. The EEOC filed this ac.tion on behalf of Tcwnson and a class of female

employees to correct defendant IPA’s unlawful employment practices against female employees,

and to provide appropriate equitable, injunctive artd .other relief to those female employees

adversely affected by such unlawful employment p~a.c._tices. 5. Plaintiff-Intervenor Townson is a female citizen, who at all times relevant herein,
has resides in the Northern District of Illinois, and was employed by defendant IPA from

approximately April 8, 1996 until March 3, 19981~-.:..

6. On July 18, 2001, Townson filed herMotion to Intervene in this action, which was
¯ ~:~:.r~:-~:~ ..
granted. Townson moved for intervention becausgher interests in this action are distinct and

different from those of the EEOC in that she suffered¯ severe emotional and financial harm as a

result of defendant IPA’s unlawful employment pra.ctices and the EEOC did not, in that the EEOC cannot enter into a confidential settlement agreement with defendant IPA, and in that

Townson seeks legal relief while the EEOC seek~.._e.._quitable and injunctive relief. 8. At all times relevant herein and pre~e_ntly, defendant IPA is an Illinois corporation
doing business in the Northern District of Illinois:.!.Defendant IPA is engaged in the consulting

business.

.i

2

9. Defendant IPA, through its owner ~iICEO John Burgess, discriminated against Townson on the basis of her sex through a pattern.and practice of sexual and sex-based harassment. 2"he harassment included, but is not !i~i~ed to, subjecting her to sexual and sex-based harassment; conditioning the terms of her employment: on responses to requests for sex; failing to take prompt remedial action intended to eliminate.the, harassment after defendant IPA became aware of the illegal behavior; and constructively dis_charging her.
10. On March 3, 1998, after refusing to go out on a date with John Burgess, Townson’s compensation was changed. Townsoni~as taken off salary and placed on straight commission. Townson no longer had a guaranteed.source of income.
1 I. The effect of the practices complai~t.of in Paragraph 9 and Paragraph 10 has been to deprive Townson of equal employment opportunities and otherwise affect her status as an employee because of her sex.
12. The unlawful employment practices.iieomplained of in Paragraphs 9 and Paragraph 10 were intentional.
13. The unlawful employment practices.C_o.mplained of in Paragraph 9 and Paragraph 10 were done with malice or with reckless indifference to the federally protected rights of Townson.
WHEREFORE, the Townson prays for they_following relief: A. Lost Wages; A. Compensatory Damages; B. Punitive Damages;
Attorneys Fees; and

Costs of litigation. Respectfully submitted, Att~-r~y t’or Plaintiff": Marion G. Townson
Edward J. Moran, Esq. Three First National Plaza Suite 5330 Chicago, IL 60602 (312)759-0505 No. 6195416
4

 </s> ,:;(lcr Form (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

Morton Denlow

CASE NUMBER

01 C 4427

DATE

6/17/2002

CASE TITLE
MOTION:

EEOC vs. International Profit Assoc., Inc.

[In

the

followmg

box

(a)

indicate

the

party

fihng

the

mOtion,

e.g.,

plamtlff,

defendant,

3rd

..
partyplamtlff,

and

(b)

state

bnefly

the

nature

of the motion being presented.]

DOCKET ENTRY:

(I)

•

Filed motion of [use listing in "Motion" box above.]

(2) o

Brief in support of motion due ___.

(3)

o

Answer brief to motion due___. Reply to answer brief due___.

(4)

o

Ruling/Hearing on ___ set for ___ at ___.

(5) o

Status hearing set for 7/902 at 10:00 a.m.

(6) o

Pretrial conference[heldlcontinued to] [set for/re-set for] on ___ set for ___ at ___.

(7) o

Trial[set for/re-set for] on ___ at ___.

(8) o

[Bench/Jury trial] [Hearing] heldlcontinued to ___ at ___.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(I) 0 FRCP41(a)(2).

(10).

[Other docket entry] Motion hearing held. Oral motion to extend the time to take the deposition of Ms.

Porter's on or by 7/31/02 is granted. Mr. Cherry is to proceed first. Parties to complete deposition in one sitting, if

possible, subject to her physical limitations. Defendant International Profit Associates, Inc. 's motion to compel more

specific answers to Defendant's first set of interrogatories, four and five, and for attorney's fees is denied. Plaintiff

EEOC's motion for an order to show cause why Defendant should not be held in contempt is denied however, Defendant is to supplement responses to Interrogatory #8 and Rule 26(a) production on or by 7/1/02 with respect to no less than 20

claims. Enter agreed order sealing Defendant's motion to compel.

• (II)

[For further detail see order attached to the original minute order.]

--;-;-

No notices required, advised in open court. No notices required. Notices mailed by judge's staff. Notified counsel by telephone. Docketing to mail notices. Mail AD 450 form. Copy to judge/magistrate judge.

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

DOCKETED
JUN 1 8 2002

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
MARION TOWNSON,
Plaintiff-Intervenor,
v.
INTERNATIONAL PROFIT ASSOCIATES, INC.,
Defendant.

) ) ) ) )
) No. 01 C 4427 )
) JUDGE GOTTSCHALL ) ) MAGISTRATE JUDGE DENLOW ) )
)
) )

AGREED ORDER
A. On the lOth day of June, 2002, International Profit Associates, Inc. ("IPA") filed a Motion to Compel More Specific Answers to Defendant's First Set of interrogatories, Four and Five, and for Attorney's Fees.
B. IPA and the Equal Employment Opportunity Commission ("EEOC") have conferred on this issue and have agreed to seal IPA's Motion to Compel.

NOW, THEREFORE, IT IS ORDERED THAT: IPA's Motion to Compel More Specific Answers to Defendant's First Set of
interrogatories, Four and Five, and for Attorney's Fees, dated June 10, 2002 is hereby sealed.

Honorable Morton Denlow Magistrate Judge

 </s> ~ Mu:..tc Ordo;r FOrl"l (06f97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

Morton Denlow

CASE NUMBER

01 C 4427

DATE

7/912002

CASE TITLE
MOTION:

EEOC VS. International Profit
[In the following box (a) mdlcate the party filmg the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of the motion being presented.]

DOCKET ENTRY:

(I)

•

Filed motion of [ use listing in "Motion" box above.]

(2) o

Brief in support of motion due ___.

(3) o

Answer brief to motion due___. Reply to answer brief due___.

(4) o

Ruling/Hearing on ___ set for ___ at ___.

(5)

•

Status hearing held and continued to 7/3012002 at 10:00 A.M.

(6) o

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at ___.

(7) o

Trial[set for/re-set for] on ___ at ___.

(8) o

[Bench/Jury trial] [Hearing] held/continued to ___ at _ _.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP4I (a)(I) 0 FRCP41(a)(2).

(10) •

[Other docket entry] EEOC's motion for entry of a protective order is granted in part and denied in part.

Defendant is only allowed to ask deponents questions regarding drug use related to the workplace. Defendant is

only allowed to ask questions regarding arrests and convictions admissible for impeachment purposes. EEOC's

motion limiting the time of deposition of EEOC class members is denied without prejudice. Plaintiffs motion

for an order holding Defendant in violation of the 10/16/01 protective order is denied as stated in open court.

Defendant is to supplement responses to Interrogatory #8 with another 20 claims on or by 9/10102. Enter order

sealing the Defendant IPA's response to EEOC's motion regarding contempt.

• (II)

[For further detail see order attached to the original minute order.]

-

No l1()tices required, advised in open court.

No notices required.

7 -

Notices mailed by judge's staff.

..

-

Notified counsel by telephone.

Docketing to mail notices.

,.---

-

Mail AO 450 fonn.

Copy to judge/magistrate judge.

oumberofnolices
\.. '\ 0 2. J~ \)\)1. iiatc docketed

courtroom

DK

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
MARION TOWNSON,
Plaintiff-Intervenor, v.
INTERNATIONAL PROFIT ASSOCIATES, INC.,
Defendant.

) ) ) ) )
) No. 01 C 4427 ) ) JUDGE GOTTSCHALL ) ) MAGISTRATE JUDGE DENLOW ) ) ) ) )

ORDER SEALING DEFENDANT IPA's RESPONSE TO EEOC's MOTION REGARDING CONTEMPT
A. On the 14th day of June, 2002, International Profit Associates, Inc. ("IPA") filed a Response to EEOC's Motion Regarding Contempt.
B. IPA and the Equal Employment Opportunity Commission ("EEOC") have conferred on this issue and have agreed to seal IPA's Motion to Compel.

NOW, THEREFORE, IT IS ORDERED THAT:
C. IPA's Response to EEOC's Motion Regarding Contempt, dated June 14, 2002 is hereby sealed.

DATED:

Honorable Morton Denlow

Document ID: 297235.1 12/51013:14:18 PM

 </s> :-'linulC Order Fon" (O(,/<)7)

United States District Court, Northern District of Illinois

l'.'ame of Assigned Judge 01' Magistrate Judge
CASE NUMBER
CASE TITLE

Joan B. Gottschall

Sitting Judge ifOthel' than Assiglled ,Judge

01 C 4427

DAn~

711 0/2002

Equal Employment Opportunity Commission and Marion Townson vs. International Profit Associates, Inc.

MOTION:

[lnlhc followIng box (a) IndIcate the party Ililng the mOllon, e.g_, plalntlll, dclendant, 3rd party plalntll f, and (b) stale bne!ly the nature of the motion being presented.j

DOCKET ENTRY:

(I)

o

Filed motion of l use listing in "Motion" box above.]

(2)

o

Brief in support of motion due _._

(3) o

Answer brief to motion due

Reply to answer brief due _____

(4 ) o

Ruling/Hearing on ____ ...._ set for

at

(5) o

Status hearinglheld/continued to] rset forlre-sct for] on.

set for

at

(6) o

Pretrial conference[hcld/continued toJ I.set forlre-set for) on __ " ___ set for

at

(7)

o

Tria\[set for/re-set for] on ____________ at _____

(8) o

[8ench/Jury trial] [Hearing] held/continued to ______ at ____

(9) o

This case is dismissed [withJwithoutJ prejudice and without costs[by/agrecmcnUpursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(1) 0 FRCP41(a)(2).

(10) •

[Other docket entry] Enter Order on reverse side of original minute order. Defendant International

Profit Associates, Inc. has timely filed objections to the magistrate judge's order [56-I] denying defendant's

motion to compel more specific answers to defendant's first set of interrogatories four and five [5 I-1], and for

attorney fees [5 I -2]. For the reasons on the reverse of this minute order, this court holds that the magistrate

judge's order is not clearly erroneous or contrary to law. The court declines to modify or set aside the magistrate

judge's order.

• (II)

[For further detail see order on the reverse side of the original minute order.J

No notices required, advised in open court.

No notices required.
r-Notices mailed by judge's staff.
r - - / - ,;"Notliled counsel by telephone.
IrV- - Docketing to mail notices. Mail AO 450 form. Copy to judge/magistrate judge.
courtroom deputy's initials

Iluml>C]'OrT lie-
JUl1 L LUUl
/~<)CkClCd

8S :S \:d \ \ "t'llit" "70
010J-031i.:!
Date/time received in central Clerk's Office

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Docu~~~t --l'(M'!',ber

Reverse Side of Minute Order dated 7/10102 Equal Employment Opportunity Commission, et al. v. International Profit Associates, Inc. Case No. 01 C 4427

In its motion to compcl. defendant International Prollt Associates, Inc. ("IPA") complains about the EEOC's answers to certain interrogatories. Specifically, the IPA had sought "a description of the alleged sexual harassment at issue, the dates upon which it occurred and the names of the alleged harassers." (DeC's Objections at 1-2.) IPA claims that 308 of the EEOC's answers were non-specific, in violation of Federal Rule of Civil Procedure 33, and seeks more specific answers. On June 17,2002, Magistrate Judge Morton Dcnlow denied IPA's motion. IPA timely filed objections on June 24, 2002.
IPA is correct that the answers about which it complains, by themselves, would be in tension with Rule 33's requiremcnt that answers to interrogatories be full and complete. However, IPA fails to point out that these general sentenccs arc subsumed within approximately 200 pages of allegations of 142 women, most of which contain speci ric details. The allegations in sum total concern more than (,0 men at IPA. The court must recognize thc sheer number of accusers, accused, and allegations, and conclude that the EEOC has reasonably provided full and complete answers. The magistrate judge's holding, in his discretion, that the EEOC's answers satisfy the requirements of Rule 33, is not clearly enoneous or contrary to law. Therefore, the court declines to modify or set aside the magistrate judge's rulill~S;'

[ /

!! <~~I ~ti/,i/?! .

 </s> Minute Order Foml (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

Morton Denlow

CASE NUMBER

01 C 4427

DATE

7/30/2002

CASE TITLE
MOTION:

EEOC vs. International Profit Asso., Inc.
[In the following box (a) mdicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bneflythe nature of the motion being presented.}

DOCKET ENTRY:

(1)

•

Filed motion of [use listing in "Motion" box above.]

(2) o

Brief in support of motion due ___.

(3)

o

Answer brief to motion due___. Reply to answer brief due___.

(4) o

RulinglHearing on ___ set for ___ at ___.

(5)

•

Status hearing held and continued to 12/512002 at 10:00 A.M.

(6) o

Pretrial conference[heldlcontinued to] [set forlre-set for] on ___ set for ___ at _ _ _.

(7) o

Trial[set forlre-set for] on ___ at ___.

(8) o

[Bench/Jury trial] [Hearing] heldlcontinued to _ _ at _ _.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementipursuant to]
o FRCP4(m) 0 General Rule 21 0 FRCP41(a)(1) 0 FRCP41(a)(2).

(10) •

[Other docket entry] Motion hearing held. For reasons stated in open Court, Plaintiff EEOC's

motion to compel Defendant IPA to supplement its response to EEOC Interrogatory No.2 is denied.

Defendant is to supplement responses to Interrogatory No.8 with another 20 claims on or by11l12/02.

(II) o

[For further detail see order (on reverse side of/attached to) the original minute order.]

I--
7
I-I-I--
7

No notices required, advised in open court. No notices required. Notices mailed by judge's staff. Notified counsel by telephone. Docketing to mail notices. Mail AO 450 fonn. Copy to judge/magistrate judge.

DK

courtroom deputy's

82:S !:J OSlnr2:0

initials

number of notices
~Ul ~ ll£UJ2 ~_docketed

c....V

7/)012002 date mailed notice

DK

mailing deputy initials

 </s> M~\ulf Ord~r Form (06197)

United States District Court, Northern District of Illinois

Nllmt of AssigneIJ Judge 01" Ml:I.~istnlte Judee
CASE NUMBER

Joan B. Gottschall 01 C 4427

Sitting Judg\!' if Othel" thab Assl/;l.ned Judge
DATE

Morton Denlow 2/12/2003

CASE nnE
MOTION:

EEOC vs. International Profit Associates
.. lin the followmg box (II) Indlcale Ihe party hllng the mOtion, c.g., phuohff, de(endal\t. led paftypla1l1tiff, and (h) statc hncflythc= natu~
of the motion being P'f~tcd·l

DOCKET ENTRY:

(I)

•

Filed motion of [ use listing in "Motion" box above.)

(2) o

Brief in support of motion due ___.

(3) o

Answer brief to motion due___. Reply to answer brief due___.

(4) o

Ruling/I1earing on .'_____ ,et for ___ at _ __

(5) o

Status hearing[hcld/cuntinued to] [set for/re-set for] un ___ set for ___ at

(6)

o

Pretrial conference[heldleontinueu tu] [set for/re-set for] on __..... set fur ___ at _ __

(7)

o

Trial[set forlre-set for] lln ___ at ___'

(8) o

[Bench/Jury trial) [Hearing] held/cuntinued to ___ at ___.

o (9)

This case is dismissed [with/without] prejudice and without eosts[byiagreentcntipursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41 (a)(\) 0 FRCP41(a)(2).

(10) •

[Other docket entry] Motion hearing held. For reaSons stated in open Court: IPA's motion to strike

alleged class member No. III is denied, EEOC's motion to terminate class member 111 's deposition is granted.

EEOC's motion for protective order is granted. IPA's motion to compel verified interrogatory answer. is denied.

IPA's motion to compel affidavits of compliance with requests for documents and other items is denied. EEOC

request for protective order of class member # I05 is denied. lI'A's motion to strike four alleged class members

#33, 37, 73 and 141 is denied. Defendant IrA's motion to strike alleged class member #45 is denied, Defendant

IPA's motion to compel deposition is denied. Defendant IPA's motion to close alleged cia.. is denied.

• (11 )

[For further detail sec order on the reverse side of the original minute order.]

No naticc!i I"tquited, advised in open court.

No n(]ti~t:s required .

./ Notic~ malleI.! by judge's staff.

Notified coun!:i~l by telephone:.

Dockeling to mail nuticc!i.

Mail AO 450 form .

./ Copy to judgelmagilltTl:lt!= jud~f:.

courtroom

OK

deputy's

c

initials

OK
,..ilin~ depuly ini1~15

(Resetved fur U!i~ by the Coun)
ORDER
Defendant IPA's motion to strike alleged class member II 111 is denied. EEOC's motion to terminate class member 11111 's deposition is granted because of the conduct of
IPA's counsel at the deposition. EEOC's motion for protective order for class member #111 is granted and her deposition is terminated. Defendant TPA's motion to compel verified interrogatory answers is denied because counsel's vcrillcation
is sufficient. Defendant IPA's motion to compel affidavits ofcompliance with requests for documents and other items
is denied and parties shall continue to produce documents as early as possible. EEOC request for protective order of class member II I05 is denied. IPA is granted leave to take the deposition of class member #105. Defendant IPA's motion to strike four alleged class members #33, 37, 73 and 141 is denied and Defendant IPA's motion to strike alleged class member #45 is denied. Tfthere are any last minute
deposition cancellations, the cancelling party shall pay the court reporter fees. Class members #33 and /145 are to appear for their depositions at a mutual agreeable date and time. Ifa date for deposition of class members#75 and #14\ is not set by 3/14/03, class members #75 and #141 will be removed from the class. Class member #37 is to appear for deposition prior to 6/30103. The deposition of class member #37 to be taken in up to 2 sessions not to exceed 4 hours each Of a total time of 7 hours. EEOC is to provide a location to take the deposition uf class member #37. Defendant IPA's motion to compel deposition of Intervenor Marion Townson is denied until IPA provides its interrogatory responses to her claim. Defendant lPA's motion to close alleged class is denied. The Court stands on it prior ruling that the class is closed on 6/30/03. The Parties shall confer and prepare a stipulation regarding the nature of Plaintiffs' emotional distress claims to clarify thaI no medical evidence will be relied upon.

 </s> Millute grder Form (06/97)
"

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

CASE NUMBER

01 C 4427

DATE

4/23/2003

CASE TITLE
MOTION:

EEOC and Marian Townson, et al. vs, International Profit Associates, Inc,
[In the followmg box (a) mdlcate the parly fihng the mouon, e.g., plamtlff, defendant, 3rd partypiaLntlff, and (b) state bnefly the nature of the molion being presented.]

DOCKET ENTRY:

(I) o

Filed motion of [ use listing in "Motion" box above,]

(2) o

Brief in support of motion due ___'

(3) o

Answer brief to motion due_ _ _, Reply to answer brief duc_ _ _,

(4) o

RulinglHearing on ___ set for ___ at _ _ _'

(5) o

Status hearing[heldlcontinued to] [set for/re-set for] on ___ set for _ _ _ at ___'

(6) o

Pretrial conference[heldlcontinued to] [set forlre-set for] on _ _ _ set for ___ at ___'

(7) o

Trial[set for/re-set for] on ___ at ___'

(8) o

[Bench/Jury trial] [Hearing] heldlcontinued to _ _ _ at _ _ _'

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(1) 0 FRCP4I(a)(2),

(10) •

[Other docket entry] Enter Order. This court sets aside Magistrate Judge Denlow's ruling denying

EEOC's motion for a protective order and grants the motion for a protective order [150-1].

• (11)

[For further detail see order attached to the original minute ordeL]

-

No notices required, advised in open court.

-

No notices required.

-

Notices mailed by judge's staff.

2,--_yVNotificd counsel by telephone. Docketing to mail notices.

-

Mail AD 450 form.

Copy to judge/magistrate judge.

1.Y ... ,", , .!.~!\! T ('''~ .,.. .... ,'. '"

number ofnolLces
lPR 24:2003 (#e docketed
L~Yi""i'I' \.

courtroom deputy's initials

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dale mailed notice mailing depuJy initials

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

and

)

)

MARIAN TOWNSON, et a!.,

)

)

Plaintiff-Intervenors, )

)

v.

)

)

INTERNATIONAL PROFIT

)

ASSOCIATES, INC.,

)

)

Defendant. )

Case No. 01 C 4427 Judge Joan B. Gottschall

ORDER

The EEOC has objected to an order by Magistrate Judge Denlow denying EEOC's

motion for a protective order. As this is a discovery order, the court reviews it for abuse of

discretion. Having considered the arguments of the parties, this court sets aside the Magistrate

Judge's ruling and grants the motion for a protective order.

During the pendency of this sexual harassment litigation, defendant IPA hired James

Colello as its Director of Human Resources and fired him a few weeks later, entering into a

"Severance Agreement and General Release" which contained a "Confidentiality" provision

which provided in part that Colello was prohibited from disclosing "anything relating to his

employment" to other former, current or prospective employees, or their lawyers, "except as may

be necessary in response to lawful process of any judicial or adjudicative authority or otherwise

allowed by law." Severance Agreement, '[7.

EEOC asserts that after Colello's discharge, EEOC spoke to him and "obtained information from him about sexual harassment he observed or that was reported to him and information about the operation ofIPA's human resources department." EEOC's Objections at 2. On March 20, 2003, EEOC filed a motion to compel IPA to produce documents created by Colello at IPA relating to the subjects Colello discussed with them. On the next day, March 21, 2003, IPA's counsel, Mr. Cherry, sent a letter to Colello which stated as follows:
Dear Mr. Colello: It is now clear that you have breached your confidentiality
agreement with IPA, have broken your word, and have made statements which appear clearly designed maliciously to harm International Profit Associates. You are also not operating from a truthful base.
If you have counsel to represent you in a lawsuit that you wish me to speak with prior to a lawsuit, please let me know promptly. I will wait five (5) business days.
Sincerely, ssll Myron M. Cherry On March 24, EEOC filed an Emergency Motion for a Protective Order before Judge Denlow, seeking a protective order to prevent IPA from interfering with EEOC's ability to communicate with Mr. Colello. Judge Denlow denied the motion. His reasoning, as set forth in the transcript of the hearing before him, was that the EEOC was essentially requesting that he enjoin the filing of a lawsuit by IPA, and that with Mr. Colello neither before him in person or by counsel, he was unwilling to litigate the enforceability of the settlement agreement, especially in view of the fact that Mr. Colello appeared to be freely sharing information with the EEOC so that the EEOC's ability to gather information was not being impeded.
2

Before this court, the EEOC argues that a confidentiality agreement which is used to chill employees' participation in legitimate investigations is contrary to public policy, and rather than asking the court to invalidate the Severance Agreement, EEOC is simply requesting a ruling that the confidentiality provision is not enforceable insofar as it might be invoked to prevent Mr. Colello from communicating with EEOC. Although EEOC agrees with Judge Denlow that Colello has in the past provided EEOC with information, "his continued willingness to do so will undoubtedly be stifled under threat of a lawsuit by IPA." EEOC's Objections at 8. IPA agrees with Judge Denlow: No injunction is necessary. Moreover "EEOC has no right to prevent other parties from enforcing whatever rights they may have pursuant to whatever contracts they have." IPA's Response at 2-3.
Courts have not hesitated to make clear, in the face of such confidentiality agreements, that they are unenforceable against employees who share information with the EEOC. Jn E.E.o.C. v. Astra, USA, Inc., 94 F.3d 738 (1st Cir. 1996), the First Circuit affirmed the grant ofa preliminary injunction enjoining the defendant from enforcing provisions of its settlement agreements with former employees which barred the employees from aiding EEOC investigations as against public policy. Id. at 744. Jn EEOC v. Morgan Stanley & Co., Inc., 2002 WL 31108179 (S.D.N.Y. Sept. 20, 2002), the court, in a pretrial ruling, ruled that regardless of release agreements between Morgan Stanley and former employees, the employees "may communicate freely with the EEOC regarding gender discrimination claims, notwithstanding any
non-assistance clauses in their release agreements." Id. at *1. The non-assistance clause, while
subject to different interpretations, could "be interpreted as forbidding potential claimants from cooperating freely with the EEOC's investigation" and could therefore "have a chilling impact on
3

claimants" in violation of the important public policy interest in unimpaired investigation by the EEOC.ld.
This court agrees with the EEOC that in the face of an agreement that could be interpreted as prohibiting a former employee from communicating freely with the EEOC, the court should intervene to make clear that no such interpretation of the agreement is sustainable. The EEOC is not seeking an injunction, and no showing of an actual impairment of EEOC's investigation is necessary. As in Morgan Stanley, it is sufficient if the court sees the likelihood of a chilling impact, and it certainly sees that likelihood here. Mr. Cherry's letter threatens Mr. Colello for breaching his confidentiality agreement, and there is nothing in the record to suggest that Mr. Cherry was referring to some disclosure by Mr. Colello other than his communications with the EEOC. The court accordingly rules that Mr. Colello may communicate freely with the EEOC, notwithstanding his severance agreement, and the confidentiality provision of his severance agreement is hereby ruled to be inapplicable to communications with the EEOC, as any contractual impairment of present or former IFA employees' ability to communicate freely with the EEOC is void as against public policy. IFA may not seek to enforce, or threaten to seek to enforce, the Severance Agreement against Mr. Colello based on his communications with the EEOC.
ENTER:
DATE: April 21, 2003
4

 </s> Minutll Ortkr FQnn (U6/97)

United States District Court, Northern District of Illinois

or Name A~!dgned Jl.ldgt
or Magistrate Judge

Joan B. Gottschall

Sitrhl.2, Jud~t If Oth':l" tllan· A~~igned Judge

Morton Denlow

CASE NUMBER

01 C 4427

DATE

2123/2004

CASE TITLE
MOTION:

EEOC vs. International Profit A~sociates, Inc.
lin the followIng bO;l{ (a) indIcate the party fihnS th~ motion, c.g., plalntlft, defendant, 3rd party plaltltltl, and (b) state brJct1y the rlalur!: of the motion heing prcsentec\,J

DOCKET ENTRY:

(I)

o

Filed motion of[ use listing in "Motion" box above.]

(2)

o

Brief in support of motion due .,___.

(3) o

Answer brief to motion duc___. Reply to answer bricfduc____.

(4) o

Ruling/Hearing on ___ set for _ _ _ at ___.

(5) o

Status hearing[hcldleontinued to] [set forfre-sct for] on ___ set thr _.. __.~...._ at

(6)

o

Pretrial eonfcrcncc[heldlcontinucd toJ [set for/re-set for] on ___ set for ___ at ___ .

(7)

o

Trial[set for/re-set for] on ___ at _ _ _.

(8) o

[BenchlJury trial] [Hearing] held/continued to ___ at ___.

(9)

o

This case is dismissed [with/without] prejudice 'Illd without costs[by/agreementlpursuant to]

o FRCP4(m) 0 Loeal Rule 4L1 0 FRCP41(a)(l) 0 fRCP41(a)(2).

(l0) •

[Other docket entry] Motion hearing held, Plaintitrs motion to add class members [228-1] is granted. Defendant',

motion to bar testimony ofwitnesses disclosed after discovery cutoffor reopen discovery is granted in part and denied in part

Defend.nt's motion for sanctions against the EEOC for deposition and discovery misconduct [194-1] is denied. Plaintiffs

motion to compel the production of documents and further deposition of Andrew Daley is taken under advisement [205]. A

ruling shall be entered on or before 3/5/04 by mail. Dclcndant's mution to approve directed communication for settlement

purposes between IPA and claimants [214-1] is granted subject to the completion of a settlement conference. Settlement

cunference set for 3/3/04 at 10:00 a.m. EEOC to file an amended complaint on or before 3/1104. Defendant to answer on or

before 3/15/04.

• ( 11)

[For further detail see order on the reverse side ofthe original minute order.]

-

No notic~ rt:quired, advised in open CUlll'\.

No noticc=:s n=quired.

D9t"nJOnt
I NUlt\bor

7

NotiCeli mailed by judge's staff.

-

-

Notitkd emmsd hy telephone,

-

Docketing to mail notices,

M3il AO 450 fOrrr1.

7

CUP)! {O judge/magistrate judge,

1,.'. , c,

sn '. ,''',1

l;uurtI'OOrr'l

ilK

deputy'!;

initill.lli

I. :J
DK6
D"te(t!m~ .received in t.;~r"ltral Clerk's Ol1ke

(Reserved for use by the Court) ORDER
The general procedures that govern Title VII pattern and practice lawsuits are set forth in Int'l. Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) and General Telephone v. EEOC, 446 U.S. 318 (19BO). The EEOC may seek ciasswide relief without being certified as the class representative under Rule 23 of the Federal Rules of Civil Procedure. General Telephone, 446 U.S. at 320. With respect to the
trial of this case, the trial shall be bifurcated and shall follow the procedures outlined in EEOC v. Dial Corp.,
156 F. Supp. 2d 926 (N.D. 111.2001) and 259 F. Supp. 2d 710 (N.D. III. 2003). Therefore, the trial scheduled for February 7,2005 shall deal only with phases I (whether a pattern or practice existed and, if so, when) and II (whether any such pattern or practice was done with malice or reckless indifference, and if so, an amount, if any, of punitive damages to the class). 259 F. Supp. 2d at 712. In the event a pattern and practice of sexual harassment and sexual discrimination is found, a later trial will be conducted of phases III (compensatory damages in the individual claims): and IV (an apportionment of any punitive damages among the class members). As a result, dispositive motions to be filed by July 15, 2004 shall address only the pattern and practice and punitive damage issues in phases I and II and shall not address the issue of 'Individual claims.
f:'EOC's Motion to Add Class Members is granted and Defendant's Motion to Bar Testimony of Witnesses Disclosed after Discovery Cutoff or Reopen Discovery is granted in part and denied in part. Plaintiffs complaint alleges a pattern and practice of sex harassment, Sex discrimination and hostile and abusive work environment for the period from at least 1991 to the present. This Court required Defendant to produce an employee list for employees for the period 1997 through September 29, 2001. The EEOC was allowed to contact these employees as part of its investigation. Since the close of fact discovery on December 31,2003. approximately one dozen new prospective class members seek to join this suit as members of the class. These individuals will be allowed to join the class, however. none of them will be allowed to testify in phases I and It of the trial with respect to issues for the period of 1997 through September 29, 2001. On or before March 1, 2004, the EEOC will once again confirm in writing to Defendant the identity of the new class members and will specifically identify those new class members who they intend to call at trial to establish a pattern or practice prior to 1997 or after September 29, 2001. All other new class members will be barred from testifying in phases I. and II of the trial. Defendant may depose the proposed witnesses at its option on all issues so as to avoid a second deposition.
Defendant'S Motion for Sanctions Against the EEOC for Deposition and Discovery Misconduct is denied for the reasons stated in open court.
Plaintiffs Motion to Compel the production of documents and further deposition of Andrew Daley is taken under advisement. A ruling shall be entered on or before March 5, 2004. Defendant shall produce to Defendant and the Court an updated privilege log and deliver withheld documents to the Court for in camera review on or before February 24, 2004.
Defendant's Motion to Approve Direct Communications for Settlement Purposes between Defendant and Claimants is granted subject to the completion of a settlement conference with this Court on March 3, 2004 at 10:00 a.m. and prior approval of the written communications and procedures by the Court.
The EEOC shall submit its updated settlement demand, including proposed form of consent decree, to Defendant on or before February 26,2004. Defendant to submit its revised settlement offer and response to the EEOC's proposed consent decree to the EEOC on or before March 2, 2004 at Noon. Defendant shall provide the Court with copies of the revised settlement demand and offer by March 2, 2004 at Noon.
EEOC to file an amended complaint on or before March 1, 2004 and Defendant to answer on or before March 15, 2004.

Dated: Februar 24, 2004

MORTON DEN LOW United States Magistrate Judge

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

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION, ET AI.

)

)

Plaintiffs,

)

)

)

)

)

)

)

INTERNATIONAL PROFIT ASSOCIATES, )

INC.,

)

)

Defendant.

)

)

CIVIL ACTION NO. 01 C 442~ ~
Judge Joan B. Gottschall Magistrate Judge Morton Denlow

NOTICE OF FILING

To: ALL ATTORNEYS ON ATTACHED SERVICE LIST

Please take notice that on March 1, 2004, EEOC filed the attached EEOC’s First

Amended Complaint with the Clerk of the United States District Court for the Northern District

of Illinois, Eastern Division at 219 South Dearborn, Chicago, Illinois, 60604.

_

~]~ri al Attorney
United States Equal Employment Opportunity Commission 500 W. Madison St., Suite 2gO0 Chicago, IL 60661 (312) 353-7546

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DMSION

¯

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff,
VB

CIVIL ACTION NO. 01 C 4427
Judge Joan B. Gottschall Magistrate Judge Morton Denlow

INTERNATIONAL PROFIT ASSOCIATES, INC.,

FIRST AMENDED COMPLAINT

Defendant.

"JURY

TRIAL

DEMAND
uucK[TED

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e etseq. (’.’Title VII"), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Wendy Denio (nee Commander) ("Commander") and Marion Townson ("Townson"), employees of International Profit Associates, Inc. ("IPA"), and to a class of female employees who were employed by IPA or who worked on the premises of [PA but were employed by other employers ("class of female employees") who were adversely affected by such practices. Plaintiff, the U.S. Equal Employment Opportunity Commission (the "Commission"), contends Defendant, I~A, has engaged ha a pattern and practice of discrimination against Commander, Townson, and a class of other female employees because of their sex, by subjecting them to a hostile and abusive work environment, by threatening them with or offering them tangible employment actions contingent on their responses to requests for sex, and by failing to take prompt remedial action intended to eliminate the harassment after the Defendant became aware of such behavior, ha violation of Title

JURISDICTION AND VENU~ 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 706(0(1) arm (3) and Section 707 of Title VII of the Civil Rights Actof 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and -6, and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. 2. . The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Illinois, Eastem Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and ertforeement of Title VII, and is expressly authorized to bring this action by Section 706(0(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant tim~§, Defendant has continuously been and is now doing business in the State of Illinois and the city of Buffalo Grove and has continuously hadat least fifteen (15) employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-(b),.(g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Commander and Townson filed charges with the Commission alleging violations of Title V//by Defendant. All
2

conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least 1991, Defendant has engaged in a pattern and practice of unlawful
employment practices at its facilities, in violation of Section 703(a)(1) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a)(1) and -6. These practices include, but are not limited to, engaging in intentional discrimination against Commander, Townson, and against a class of female employees by subjecting them to sexual and sex-based harassment, threatening them with or offering them tangible employment actions contingent on their responses to requests for sex, and failing to take prompt remedial action intended to eliminate the harassment alter the Defendant became aware of the illegal behavior, all in continuing violation of Section 703(a) and Section 707 of Title VII, 42 U.S.C. § 2000e-2(a) and -6.
8. The effect of the practices complained of in paragraph seven (7) above has been to deprive Commander, Townson, and a class of female employees of equal employment opportunities and otherwise adversely affect their status as an employee because of their sex.
9. The unlawful employment practices complained of in paragraph seven (7) above were and are intentional.
10. The unlawful employment practices complained of in paragraph seven (7) above were and are done with malice or with reckless indifference to the federally protected fights of Commander, Townsort, and a class of female employees.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant,/PA, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of sex;
3

B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices;
C. Order Defendant to make whole Commander, Townson, and a class of female employees by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above; "
D. Order Defendant to make whole Commander, Townson, and a class of female employees by providing compensation for past and future non-pecuniary losses, including emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation;
E. Order Defendant to pay Commander, Towrtson, and a class of female employees punitive damages for its malicious and/or reckless conduct described, in amounts to be determinexi at la-ial;
F. Order Defendant and its successors to provide training to its officers, managers and employees regarding sexual harassment in theworkplace;
G. Order Defendant and its successors to provide individual training to John Burgess regarding sexual harassment in the workplace;
Grant such further relief as the Court deems necessary and proper in the public interest; and
I. Award the Commission its costs in this action.
4

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted,
Erie Dreiband General Counsel Gwendolyn Young Reams Associate General Counsel Equal Employment Opportunity Commission

/ Johll~C.’H .drii[~ I#

"

,/

RegiOnal Atto~ ~y "

..... --.-~D~ane I. Sm~son

~an~e’SzrombaTrial Attorney ""
Arm Henry Trial Attorney

Uupervi~ ~ytal Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street Suite 2800 Chicago, Illinois 60661 (312) 353-8551

5

CERTIFICATE OF SERVICE
Jeanne B. Szromba, an attorney, hereby certifies that she caused a copy of the foregoing NOTICE OF FILING AND EEOC’S FIRST AMENDED COMPLAINT to be served by facsimile on March 1, 2004, to counsel of record at the following addresses:
Myron M. Cherry, Esq. Myron M. Cherry & Assc., L.LC. 30 North LaSalle Street, Suite 2300 Chicago, IL 60602 (312) 853-0279 (fax)
Ross Peters, Esq. The Law Offices of Ross J. Peters
& Associates, Ltd. 33 North County Street, Suite 402 Waukegan, IL 60085 (847) 625-0282 (fax)

 </s> Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

CASE NUMBER

01 C 4427

DATE

8/20/2004

CASE TITLE
MOTION:

EEOC vs. International Profit Associates
[[n the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant,3rd party plaintiff, and (b) state briefly the nature of the motion being presented.J

Defendant International Profit Associates, Inc.'s Objections to Bifurcation Portion of Magistrate Judge's Order Dated February 23, 2004 (258-1).

DOCKET ENTRY:

(1) o

Filed motion of[ use listing in "Motion" box above.]

(2) o

Brief in support of motion due _ _ _.

(3) o

Answer brief to motion due___. Reply to answer brief due___.

(4) o

RulinglHearing on _ _ _ set for _ _ _ at _ _.

(5) o

Status hearing[heldlcontinued to] [set for/re-set for] on _ _ set for _ _ _ at _ _ _.

(6) o

Pretrial conference[held/continued to] [set for/re-set for] on _ _ _ set for _ _ _ at _ _ _.

(7) o

Trial[set for/re-set for] on _ _ _ at _ _ _.

(8) o

[Bench/Jury trial] [Hearing] held/continued to _ _ at _ _ _.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(I) 0 FRCP4I (a)(2).

(10) •

[Other docket entry] Defendant International Profit Associates, Inc.'s objections to bifurcation

portion of Magistrate Judge's February 23, 2004 (258-1] are sustained. The court has not examined the

merits of the Magistrate Judge's order but believes decisions relating to the actual conduct of the trial

should be made by the trial judge, once it is clear what issues will actually be tried. This order is without

prejudice to reconsideration of the propriety of bifurcation at ilh,tpr hm,p.A'

(11) 0

[For further detail see order (on reverse side

No notices required, advised in open court.

No notices required.

Notices mailed by judge's statIo

Notined counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.
---~ Copy

courtroom

RJ

deputy's

initials

mailing deputy initials

 </s> Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

Morton Denlow

CASE NUMBER

01 C 4427

DATE

1113/2004

CASE TITLE
MOTION:

EEOC vs. International Profit Associated, Inc.
[In tbe following box (a) indicate tbe party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature of the motion being presented.]

DOCKET ENTRY:

(I) o

Filed motion of [ use listing in "Motion" box above.]

(2) o

Brief in support of motion due ___.

(3) o

Answer brief to motion due___. Reply to answer brief due_ _ _.

(4) o

Ruling/Hearing on _ _ _ set for ___ at ___.

(5) o (6) o

Status hearing[held/continued to] [set for/re-set for] on _ _ _ set for

at - - -

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at _ _ _.

(7) o

Trial[set for/re-set for] on ___ at ___.

(8) o

[Bench/Jury trial] [Hearing] held/continued to _ _ _ at _ _ _.

(9) o

This case is dismissed [witb/witbout] prejudice and witbout costs[by/agreementlpursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(I) 0 FRCP41(a)(2).

(10) •

[Otber docket entry] Part D of 1PA's emergency motion for sanctions [294-1] is granted and''B.D.

will be required to answer these questions in writing as an addendum to her deposition without the

necessity for a second deposition. No monetary sanctions will be awarded.

(II) •

[For further detail see order on tbe reverse side oftbe original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Noti fied counsel by telephone.

./ Docketing to mail notices.

Mail AO 450 fonn.

. / Copy to judge/magistrate judge.

courtroom

DK

deputy's

initials

mailing deputy initials

(Reserved for use by the Court)
ORDER
Defendant, International Profit Associates, Inc. ("IPA") filed a multi-part emergency motion for sanctions. This order addresses only subsection D of the motion, which claims that the EEOC improperly instructed its client not to answer questions concerning whether she was instructed by counsel to search for and produce documents relevant to this case. In particular, the EEOC asserted the attorney-client privilege and instructed its client, B.D., not to answer the following questions: 1) Did the EEOC ever ask you to look for any documents prior to your deposition? and 2) Were you ever asked by anybody to look for documents?
The instruction not to answer was improper because in the Seventh Circuit questions dealing only with the search of files do not reveal legal advice and are therefore not privileged. In re Grand Jury Proceeding (Barton), 68 F.3d 193, 196 (7th Cir. 1995); In the Matter of Michael Feldberg, 862 F.2d 622, 627 (7th Cir. 1988). The questions at issue are similar to those involved in the Barton case, which included: Whom did you direct [to perform the document search]?; and from whom did you get [the documents]? Barton at 194-95. The Seventh Circuit stated that Questions 1 and 2 dealt only with whether the attorney directed his client to search for files. Therefore, the communications did not reveal a client confidence or legal advice and thus were not protected by the attorney-client privilege. Id.
The questions to B. D. are similar to Questions 1 and 2 asked in Barton. Even though an attorney was the subject of grand jury questioning in Barton while a client was the subject of questioning at the depOSition in the case at bar, the dispositive issue remains the same; whether the questions presented are precluded by the attorney-client privilege. The only difference between the questions asked in Barton and in the case at hand is semantic. Both sets of questions were attempting solely to discover whether the client's attorney asked the client to search for documents. The Seventh Circuit decisions in both In re Matter Grand Jury and Feldberg conclude that answers to questions dealing only with the search of files do not reveal legal advice rendered by the attorney, and thus are not precluded by the attorney-client privilege. Therefore, the questions asked by counsel of IPA in the case at bar, "Did the EEOC ever ask you to look for any documents prior to your deposition?" and "Were you ever asked by anybody to look for documents?" are not barred by the attorney-client privilege. Accordingly, part D of IPA's emergency motion for sanctions is granted and B.D. will be required to answer these questions in writing as an addendum to her deposition without the necessity for a second deposition. No monetary sanctions will be awarded.

Dated: November 3, 2004

MORTON DENLOW United States Magistrate Judge

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

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff, )

and

)

)

MARIAN TOWNSON, et al.,

)

)

Plaintiff-Intervenors, )

)

v.

)

)

INTERNATIONAL PROFIT

)

ASSOCIATES, INC.,

)

Defendant. )

Case No. 01 C 4427
Judge Joan B. Gottschall )

ORDER

Before the court is a renewed m otion for sanctions subm itted by defendant International

Profit Associates (“IPA”) charging the Equal Opportunity Employment Commission (“EEOC”) with

various discovery abuses. This is the third roundof briefing on these issues. IPA’s original motion

for sanctions was denied by Magistrate Judge Denlow on February 23, 2004. IPA tim ely filed

objections to Judge Denlow’s order, which this court overruled because IPA’s papers were “long

on outrage and short on the kind of information the court needs to evaluate Judge Denlow’s ruling.”

See EEOC v. IPA, No. 01 C 4427, Doc. No. 300, at 2 (N.D. Ill. Oct. 7, 2004). The court invited IPA

to resubmit its motion for sanctions, with the caveat that IPA provide, at minimum, the following

information:

(1) the specific discovery failure at issue, indicating specifically what occurred and when;

(2) the date on which (and the form in which) IPA complained of that failure to Judge Denlow;

(3) Judge Denlow’s ruling; (4) if Judge Denlow’s ruling was unsatisfactory, when that ruling was appealed
to this court; and (5) if Judge Denlow’s ruling was satisfactory but subsequently violated by the
EEOC, the specific s of the violation a nd the efforts, if any, to bring the violation to Judge Denlow’s attention. Id. As the court cautioned IPA at the time, “[s]pecificity about chronology is particularly important” because Judge Denlow’s ruling was based in part on IPA’s alleged delay in bringing matters to his attention. Id. IPA’s renewed motion now contains numerous allegations in support of the first criterion, but is still deficient in two respects. First, many of the EEOC’s alleged discovery failures involve instructions not to answer deposition questions posed by IPA’s attorneys, but IPA has not provided the court with the deposition transcripts at issue, instead providing exhibits purporting to contain brief excerpts from various depositions (often including only the question posed and the instruction not to answer). This will not do. Putting aside for the moment the fact that these unauthenticated text printouts are not evidence, context is especiallyimportant here, particularly in light of the fact that, in some cases, the EEOC m ay have been entitle d to issue an instruc tion not to answer (f or example, in order to enforce a limitation on questioning directed by Judge Denlow). IPA cites the “voluminous nature” of the deposition transcripts as well as “issues with respect to the protective order” in defending its decision not to subm it the relevant deposition transcript excer pts, but the court does not find these reasons, without more, to be persuasive. The failure to include evidence of alleged discovery abuses stops this court’s reviewat the threshold. If IPA wants the court to take notice of what transpired in these depositions, it must provide the relevant portions of the transcripts.
-2-

Any issues with the protective order presumably may be addressed by filing the transcripts under seal.
Second, the structure of IPA’s brief makes it difficult to ascertain readily whether IPA has complied with the court’s instructions to provide the chronology of alleged violations, including when each was brought before Judge Denlow and waht transpired after his ruling. The EEOC wants this court to deny IPA’s renewed motion for sanctions in its entirety for “fail[ing] to identify when and how it complained” of the alleged discovery failures, but the EEOC probably overstates the degree of IPA’s noncompliance with this court’s previous order. Although the structure of IPA’s brief is not optimal (a clump of alleged violations followed by a section dsi puting findings of waiver rather than the separate treatment and chronology of each alleged discovery violation contemplated by the court’s prior order), IPA appears to have por vided evidence of at least some instances where it raised an issue in front of Judge Denlow and he ruled on IPA’s motion. Accordingly, this court will consider IPA’s renewed motion for sanctions tothe extent that it has provided each of the items listed in this court’s Oct. 7, 2004 order.
To facilitate the court’s analysis, IPA shall provide a table illustrating its compliance with the information requested in the court’s prior order. The columns of the table should list the five categories of information previously requested by this court, and each specific alleged discovery failure should be liste d on a separate row. The individual table entries should provide the information requested in each column heading (including dates), as well as a citation both to the specific page number of IPA’s renewed motion where the information originally was provided and to the specif ic page num bers of the exhibit(s) relied upon by IPA in support of its statem ent. Providing information in this form at also will serve to dem onstrate the extent to which IPA has
-3-

complied with the court’s requirem ent that IPA’ s renewed motion be “specific, s elf-contained, coherent, and factually supported.” Id. at 4.
IPA is given twenty-one days fromthe date of entry of this order to supplement its renewed motion with the deposition transcripts and compliance table as described above. Failure to do so will result in the denial of IPA’s motion with prejudice.

DATED: May 31, 2005

ENTER:
/s/ Joan B. Gottschall United States District Judge

-4-

 </s> Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Joan B. Gottschall

Sitting Judge if Other than Assigned Judge

01 C 4427

DATE

EEOC vs. Int’l Profit Assocs, Inc.

9/2/2005

DOCKET ENTRY TEXT:
EEOC’s motion to bifurcate [315-1] is denied without prejudice for the reasons stated below.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff EEOC has moved for the entry of an order bifurcating the trial of this case into four phases: (1) liability; (2) punitive damages; (3) individual compensatory damages; (4) apportionment of punitive damages. Because the EEOC has not made adequately clear to this court the issues that it intendsto present in this case or the length of time it will take to try them, and has not replied to any of the substantive legal arguments made by IPA in its response brief, the motion to bifurcate is denied without prejudice to its renewal once the final pretrial order has been filed. While the court is generally sympathetic to the idea of dividing the proceedings in some way to make the trial of this case more manageable, the court has been given vastly insufficient information to allow it to begin to create an architecture by which the claims will be resolved.
From the start of this case, there has been confusion about the statutory basis upon which the EEOC is proceeding. Ultimately, in connection with EEOC’s requestfor leave to file a seocnd amended complaint, EEOC made plain that 42 U.S.C. §2000e-6 (“§707”), the section which authorizes EEOC to bring pattern or practice suits for equitable relief, is not involved in this case. Rather, EEOC is proceeding unde r 42 U.S.C. §2000e-5 (“§706”), which author izes the EEOC to bring suit on behalf of individual aggrieved claim ants. EEOC maintains, however, that as part of its §706 case, it can prove a pattern and practice of discrim ination and, because it is proceeding under §706, it can seek individuaclompensatory and punitive damages for the aggrieved individuals on whose behalf it is suing.
In its bifurcation motion, however, EEOC placessubstantial reliance on §707 cases such asEEOC v. Dial Corp., 156 F. Supp. 2d 926, 930 (N.D. Ill. 2001) (“In its complaint, the EEOC alleges that ‘[Dial] has engaged in a pattern and practice of unlawful employment practices . . . in violation of . . . Section 707 of Title VII’”). Normally, “[t]he goal of vindicating the public’s intere st in eradicating system ic discrimination by private employers is central to the purposeof a pattern or practice action,”EEOC v. Mitsubishi Motor Mfg. of America, 990 F. Supp. 1059, 1076 (C.D .Ill. 1998), andliability can be established without the subjective proof necessary

01C4427 EEOC vs. Int’l Profit Assocs, Inc.

Page 1 of 2

STATEMENT
to the determination of an individual case. Id. Thus, pattern and practice cases can easily be bifurcated to try the pattern and practice liability issues first. But in this case, where the EEOC denies that it is bringing a §707 case, it is not clear what the limits of the liability issue are or to what extent the liability issues are common to all claimants. Moreover, while EEOC proposes trying non-individualized pattern and practice liability issues first, it proposes, at phases 2 and 3, to prove punitive and compe nsatory damages as to a large class of individuals. IPA argues that this procedure is impermissible: that a pattern and practice cause of action cannot be paired with individual §706 damages. EEOC has not replied to this argument. Presumably, it will assert that its action is brought under §706, but thatbegs the question of how much of EEOC’s liability case will in fact be common as to all the individual aggrieved persons.
Nor is it clear why the EEOC requests that liability for a pattern and practice of discrimination be tried separately from punitive damages, which EEOC argues “ overlaps” with liability evidence. IPA argues that punitive damages must be established w ith reference to each individual aggrieved party; EEO C has quoted language from caselaw that thepunitive damages inquiry focusesprimarily on the defendant’s conduct, EEOC’s Motion to Bifurcate at 5, but “primarily” hardly establishes that there are no individual issues. As in the case of the liability evidence, the court cannot begin to det ermine the order of proof without a clear idea of what evidence is common and what is not. EEOC has also reque sted that the court bifurcate and try separately the issue of the apportionment of punitive damages, but it has not given the court any idea of what it believes will be involved in the apportionment of punitive damages, nor why this is an appropriate issue for the court, rather than the jury. In short, EEOC has not presented the coutrwith sufficient information–about its case or about the law–for the court to assess what issues will be com mon, what issues will be individual, and how to group the various issues to try the case most efficiently.
Determining the order of issues for trial requires a thorough understanding of what evidence will be presented, what legal instructions govern the determination of the legal effect of that evidence and how long the trial of each issue will take. The parties’ presentations fail to clarify these issues adequately. The motion to bifurcate is therefore denied without prejudice. Once the final pretrial order is prepared and the court is more familiar with the nature and quantity of evidence EEOC plans to introduce, the cour t will revisit the i ssue of bifurcation.

01C4427 EEOC vs. Int’l Profit Assocs, Inc.

Page 2 of 2

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

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff

)

)

No. 01 C 4427

v.

)

)

Judge Joan B. Gottschall

INTERNATIONAL PROFIT ASSOCIATES,

)

INC.,

)

)

Defendant

)

ORDER

Before the court is defendant International Profit Associates’ (“IPA’s”) renewed motion

for sanctions charging the Equal Employment Opportunity Commission (“EEOC”) with various

discovery abuses. This is the fourth round of briefing on this issue. IPA’s original motion for

sanctions was denied by Magistrate Judge Denlow on February 23, 2004. IPA timely filed

objections to Judge Denlow’s order, which this court overruled because IPA’s papers were “long

on outrage and short on the kind of information the court needs to evaluate Judge Denlow’s

ruling.” Order at 2 (Oct. 7, 2004). The court invited IPA to resubmit its motion for sanctions

with the caveat that IPA provide, at minimum, the following information:

(1) the specific discovery failure at issue, indicating specifically what occurred and when;
(2) the date on which (and the form in which) IPA complained of that failure to Judge Denlow;
(3) Judge Denlow’s ruling; (4) if Judge Denlow’s ruling was unsatisfactory, when that ruling was appealed to
this court; and (5) if Judge Denlow’s ruling was satisfactory but subsequently violated by the EEOC,
the specifics of the violation and the efforts, if any, to bring the violation to Judge Denlow’s attention.

1

Id. The court cautioned the IPA that chronology was important because Judge Denlow based his ruling in part of the IPA’s alleged delay in bringing the matters to his attention. Id.
After reviewing IPA’s renewed motion for sanctions, on May 31, 2005, this court noted deficiencies in IPA’s renewed motion and directed additional briefing. Specifically, IPA had not provided the court with actual deposition transcripts; IPA had reproduced only certain questions and answers from some of the cited depositions. Because these excerpts were devoid of context (and not authenticated), the court directed IPA to provide it with the relevant portions of the transcripts. Additionally, the court noted that the structure of IPA’s brief made it difficult to determine the chronology of the alleged discovery violations. The court directed IPA to provide the court with a table illustrating its compliance with the information requested in the court’s October 7, 2004 order. The court required IPA to provide in its table entries citations to its renewed motion and to the specific page numbers of the exhibits upon which it relies.
On July 15, 2005, IPA filed the table as well as a statement of compliance and exhibits. In its supplement filings, IPA argues that EEOC committed two sanctionable discovery abuses: (1) the EEOC submitted inaccurate and incomplete disclosures and failed to adequately supplement them, and (2) the EEOC gave claimants improper instructions not to answer IPA’s questions at their depositions. I. Inaccurate and Incomplete Disclosures
Although this is IPA’s fourth bite at the apple, it continues to do a poor job presenting the issues to the court. The court made clear in its May 31, 2005 order how IPA should supplement its renewed motion. The court directed that “each specific alleged failure should be listed as a separate row,” but IPA included only one row in its table which stated one discovery failure
2

(which is more accurately described as a category of discovery failures) – that the EEOC submitted inaccurate and incomplete disclosures. Additionally, although the court directed IPA to include citation to the specific page numbers of the exhibit(s) relied upon by IPA, it did not do so in its table. Thus, despite this court’s attempt to give IPA another chance to explain adequately its basis for its motion for sanctions, the court is left largely to piece IPA’s argument together from its prior submissions. The court is loathe to do so and could simply deny the motion on this basis. However, after struggling to understand IPA’s supplemental briefing in conjunction with its renewed motion for sanctions, the court will reach the merits. It concludes that IPA has not shown that the harsh sanctions it seeks in its renewed motion are warranted.
Reviewing IPA’s table, as to the specific discovery failure at issue, IPA states that EEOC’s initial responses in August of 2001 to IPA’s interrogatories were “woefully inadequate.” In support of this discovery failure, IPA cites its renewed motion for sanctions, pages 10-19 and Exhibits K-U.1 Because IPA has referenced such a large portion of its brief as well as numerous exhibits, the specific discovery failure of which it complains remains ambiguous. Assuming that the “starting point” in IPA’s table is the allegedly deficient 2001 initial disclosures, IPA states that it subsequently filed two motions to compel: (1) the December 26, 2001 motion to compel specifics as to claimed damages and (2) the January 22, 2002 motion to compel EEOC’s notes of its interviews with claimants that served as the basis for its written disclosures.
As to its motion to compel damage specifics, on January 9, 2002, Judge Denlow granted
1This hardly was what the court had in mind when it entered its May 31, 2005 order. Citing nine pages of brief and eleven exhibits does nothing to simplify or clarify the issues.
3

the motion in part and ordered the EEOC to provide IPA with itemized out-of-pocket damages and “a general description of the nature of the emotional distress, if any, caused by defendants’ conduct (e.g., headaches, loss of sleep, loss of concentration),” but Judge Denlow did not require EEOC to provide a dollar quantification of the emotional distress damages.
As to its motion to compel EEOC’s interview notes with claimants, on March 27, 2002, Judge Denlow denied the motion, holding that these notes were protected from discovery by attorney-client privilege and the work product doctrine. IPA did not file any objections to Judge Denlow’s order with this court.
Subsequent to these motions, IPA argues that it raised the issue of EEOC’s inadequate disclosures with Judge Denlow again at a hearing on May 8, 2002. At this hearing, IPA argues that Judge Denlow created a procedure for EEOC and IPA to supplement their initial disclosures.2 Although IPA makes much of this procedure in its brief, the “procedure” is far from clear in the excerpts of the transcript that IPA provided to this court. Although in its May 31, 2005 order, the court did not specifically direct IPA to file a complete copy of this transcript, it did inform the IPA that its renewed motion must be “specific, self-contained, coherent, and factually-supported.” Order at 4 (May 31, 2005). This IPA failed to do when it provided the court with only excerpts of the May 8, 2002 hearing.
Additionally, it appears that this hearing was conducted on other motions, such as EEOC’s motion to compel answers to its interrogatories, and not on any motion by IPA to
2IPA describes this procedure as follows: “(1) EEOC was required to provide to IPA the details of each incident of alleged harassment, (2) IPA was required to investigate and respond to each disclosed incident of alleged harassment (much like the form of an answer to a complaint), and (3) IPA was to provide the results of its investigation to EEOC by way of a written discovery response to each detailed allegation.” Renewed Motion for Sanctions at 11.
4

compel EEOC to update its disclosures. At that time, IPA had noticed about forty depositions,
and IPA argued that the disclosures as to some of the proposed deponents were vague. Judge
Denlow stated:
[IPA] should sit down with the EEOC and ask them specifically whether there would be any more information that would be gleaned about the specifics if [IPA] took the deposition or not. And if [EEOC] tell[s] [IPA] no, then they should be bound by the statement. If they say yes, then I think [IPA] should, before [IPA] take[s] the deposition, be given some idea as to what the time frame was and who was involved. But the whole reason for giving [IPA] the information was so that [IPA would] have a pretty good idea going what [IPA was] facing.
Tr. at 33 (May 8, 2002). Judge Denlow also stated:
It’s now time for [EEOC] to contact [the deponents] and say look, your deposition is going to be taken. Before it’s taken, I’d like to know from you whether or not you really have any more information than what’s provided here. If you do, then let’s go ahead with the deposition, and let’s give [IPA’s counsel] some additional people or dates and let him go ahead and inquire. If not, then let [IPA’s counsel] know, look, this is all this person had and will stand by it.
Id. at 36. Thus, it appears that Judge Denlow’s primary concern was ensuring that IPA did not
take unnecessary depositions when the deponent could give no more specifics beyond what was
provided in the disclosures.3
After it took two of claimants’ depositions, IPA argues, it became clear that EEOC’s
disclosures contained inaccuracies and that EEOC was attempting to add new claims during the
3It does not appear that Judge Denlow made such specific orders at the May 8, 2002 hearing as IPA alleges. IPA states that Judge Denlow “specifically ordered the EEOC to recontact the claimants to ensure their disclosures were accurate and complete.” The court cannot find such a specific order in the transcript provided.
IPA also states that “Magistrate Judge Denlow emphasized that the EEOC had an obligation to supplement its written disclosures with any new claims or information prior to commencing a deposition or be precluded from using that claim or information at trial.” The court could not locate anything approaching this in the excerpts of transcript provided. It may be that IPA intended to cite the transcript of the June 17, 2002 hearing for these rulings but mistakenly did not.
5

depositions. Thus, IPA filed a motion to compel on June 10, 2002, seeking more specific answers to its interrogatories as to the claims of harassment. On June 17, 2002, Judge Denlow denied the motion to compel. In making that ruling, Judge Denlow expressed concern that the disclosures be sufficient so that neither party was unfairly surprised. Specifically, Judge Denlow ruled that additional details that came out in depositions would be admissible but that new allegations not provided in the disclosures would later be excluded. Tr. at 31 (June 17, 2002).
IPA filed objections to Judge Denlow’s denial of its motion to compel. On July 10, 2002, this court overruled IPA’s objections, holding that EEOC had reasonably provided full and complete answers to IPA’s interrogatories.
After taking eleven more depositions, on January 31, 2003, IPA filed another motion to compel, arguing that EEOC’s disclosures contained inaccuracies and omissions. IPA asked Judge Denlow to order EEOC to file interrogatory responses verified under oath by the claimants. On February 12, 2003, Judge Denlow denied IPA’s motion because EEOC counsel’s verification of the interrogatory responses was sufficient. It does not appear that IPA filed any objections to that ruling with this court.
Finally, IPA states: Thereafter the EEOC continued to ignore Magistrate Judge Denlow’s procedure and IPA made a record of each such violation trusting that untimely claims would be barred or that claimants would be brought back as a sanction after IPA conducted its investigation of claims not disclosed prior to the deposition. Table of Efforts at 5. Thus, the court assumes that, after Judge Denlow’s ruling on February 12, 2003, IPA did not bring any additional asserted violations to Judge Denlow’s attention until it filed its motion for sanctions on December 8, 2003. At the heart of IPA’s renewed motion are alleged discovery violations that occurred after
6

Judge Denlow’s February 12, 2003 order. Although IPA asserts that it “made a record of each such violation,” it did not detail the violations in its table. The table does little to illuminate these claims, other than to indicate that they were never brought to Judge Denlow’s attention.4
In response to this court’s May 31, 2005 order, IPA provided excerpts of numerous claimants’ depositions where the claimants testified that they had never reviewed their interrogatory responses personally. Yet Judge Denlow ruled (and the court can discern no error in his ruling) that it was permissible for the lawyers to verify the interrogatory responses. See Order (Feb. 12, 2003). In other words, EEOC interviewed claimants and summarized these interviews in the disclosures. There is nothing sanctionable about the fact that claimants did not directly review the responses themselves.
In its renewed motion for sanctions, IPA also argues that several claimants admitted in their depositions that the disclosures were inaccurate or that information was omitted from the disclosures. IPA refers specifically to the depositions of claimants 92, 78, 45, 104, 60, 9, and 21, and it has provided the court with excerpts of these depositions as well as many others. The court notes that it is not terribly surprising, given the large number of claimants in this case, that EEOC made mistakes in summarizing some interviews, that claimants made mistakes when they were interviewed, or that some claimants simply remembered things differently when they were deposed. Additionally, it is unclear how IPA was prejudiced by these inaccuracies or omissions
4The court notes that Judge Denlow held approximately ten hearings on discovery motions brought by the parties during the time period between his February 12, 2003 order and IPA’s original motion for sanctions on December 8, 2003.
7

in the disclosures.5 As discussed below, IPA may be entitled to some sanction such as having certain evidence barred from being introduced at trial, but to the extent that EEOC has committed any discovery violations, they do not rise to a level that would warrant the harsh sanctions requested by IPA.
Thus, IPA’s motion for sanctions on this ground is denied. To the extent that, either in a motion for summary judgment (or in opposition thereto) or at trial, EEOC relies on evidence that IPA believes was improperly withheld during discovery, IPA may move to strike (in a summary judgment motion) or move in limine to exclude such evidence from trial. To avoid unnecessary motion practice, the court directs the parties to confer prior to the filing of such motions so that it is clear what evidence IPA finds objectionable and what evidence EEOC intends to introduce. In the event that IPA files any such motion, it must make clear the precise prejudice it claims to have suffered as a result of each alleged violation (not a category of violations). The court will not deal in generalities. II. EEOC’s Instructions Not to Answer
EEOC should be sanctioned, IPA argues, for improperly instructing claimants not to answer questions during their depositions. IPA admits that it never brought these concerns to Judge Denlow’s attention, but instead relied on EEOC to file a motion for protective order.
Fed. R. Civ. P. 30(d)(1) states: “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present
5For example, Claimant No. 72's disclosure apparently stated that Mr. D and Mr. B made inappropriate comments. At her deposition, Claimant No. 72 testified that only Mr. B made a comment. It is unclear that IPA was prejudiced by this inaccuracy in the disclosure. If other claimants testified that Mr. D made inappropriate statements, any investigation that IPA made as to Mr. D would not have been wasted effort.
8

a motion under Rule 30(d)(4).” Fed. R. Civ. P. 30(d)(4) allows a party or deponent to move to terminate the deposition or limit its scope if the movant makes “a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.” IPA makes much of the fact that EEOC never moved for a protective order on some topics it instructed claimants not to answer, and IPA argues that it was not required to file a motion to compel after each such instruction. IPA’s Statement in Compliance at 4.
Contrary to IPA’s argument, it could have moved to compel answers to its questions under Fed. R. Civ. P. 37(a)(2)(B). Both IPA and EEOC provided the court with excerpts from Claimant No. 19's deposition, which occurred on May 15, 2002, early in the process of taking depositions. Exhibit F to IPA’s Renewed Motion; Exhibit I to EEOC’s Response to IPA’s Statement of Compliance. Claimant No. 19's deposition makes clear that when IPA felt that EEOC improperly instructed a claimant not to answer questions, it knew how to contact Judge Denlow and seek a ruling on the issue. IPA was not helpless because EEOC never moved for a protective order. Instead, when EEOC did not do so, IPA could have filed a motion to compel. By failing to do so and instead waiting until the vast majority of the depositions were complete, IPA waived this issue. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994) (holding that unreasonable delay may render a motion for discovery sanctions untimely). III. Relief Sought in the Renewed Motion for Sanctions
IPA has requested particularly harsh sanctions in its renewed motion. IPA asks this court to: (1) dismiss EEOC from the suit, require that each claimant pursue her claims individually, and award IPA all fees and costs incurred in this case and (2) bar EEOC and the claimants from
9

introducing evidence as to damages sustained or evidence as to alleged harassment that was not detailed in the interrogatory answers, and award IPA all fees and costs associated with bringing this motion. The court sees nothing in the renewed motion for sanctions that would warrant such a harsh penalty.
As an alternative sanction, IPA asks this court to order that each claimant provide updated discovery, including resumption of the claimants’ depositions, and that EEOC bear the cost of this discovery. This request is overly broad because IPA has not identified the prejudice it suffered as to each claimant. Indeed, because IPA presented the deposition excerpts in seemingly random order, the court cannot discern whether IPA has identified problems with discovery from each and every claimant. Without knowing the scope of the additional discovery sought and the precise prejudice IPA is seeking to remedy, the court declines to order such a sweeping sanction.6 IV. Conclusion
For the foregoing reasons, the renewed motion for sanctions is denied. ENTER:

Dated: April 25, 2006

____/s/_______________________ Joan B. Gottschall United States District Judge

6In its Reply in Support of Its Statement of Compliance, IPA for the first time requests as a sanction that this court preclude a damage award exceeding $15,000 per claimant (both compensatory and punitive) should a judgment be entered against IPA at trial. Because IPA did not request this relief until its reply to the statement of compliance, it did not give EEOC an opportunity to respond to this proposed sanction. Thus, IPA has waived this argument. Luellen v. City of East Chicago, 350 F.3d 604, 612 n.4 (7th Cir. 2003) (citing Wildlife Exp. Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508 n.5 (7th Cir. 1994)) (“Arguments raised for the first time in the reply brief are waived.”).
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 </s> UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

INTERNATIONAL PROFIT

)

ASSOCIATES, INC.,

)

)

Defendant.

)

Case No. 01 C 4427 Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

This case is an employment discrimination suit brought by the Equal Employment

Opportunity Commission (“EEOC”) under Title VII of the Civil Rights Act of 1964, 78

Stat. 253 (codified as amended at 42 U.S.C. § 2000e et seq. (2006)) (“Title VII”) and the

Civil Rights Act of 1991, 105 Stat. 1072 (codified at 42 U.S.C. § 1981a (2006)). The EEOC alleges that, since at least 1991,1 defendant International Profit Associates, Inc.

(“IPA”) has engaged in an ongoing pattern or practice of unlawful employment activities

at its business facilities in Illinois. Specifically, the EEOC accuses IPA of discrimination

on the basis of sex, alleging that IPA’s female employees were subjected to a hostile and

abusive work environment because they were exposed to severe and pervasive sexual

harassment at IPA. The EEOC also alleges that many women at IPA were threatened

with or offered certain employment actions contingent on their performance of sexual

1 There is a discrepancy in the record regarding the time frame at issue in this suit. According to the EEOC’s Second Amended Complaint, the unlawful employment practices it seeks to remedy began in 1991. However, in the briefing in support of its motion for summary judgment, IPA suggests that none of the claimants in this suit were employed by IPA prior to 1993. Finally, the EEOC’s brief in response to IPA’s motion for summary judgment states that the relevant time frame began in 1997. While the inconsistency is not pertinent to the court’s decision on the motions currently before it, the court expects the parties to clarify this issue.
1

favors. According to the EEOC, IPA was aware that the sexual harassment was
occurring but failed to take adequate steps to correct the social climate in its offices. The
EEOC filed this suit on behalf of two named plaintiffs and a class of female IPA
employees, seeking injunctive relief as well as compensatory and punitive damages.2
Each party currently has a motion pending before the court. First, IPA has moved
for summary judgment, arguing that certain of the individual claimants who are included
in the EEOC’s class cannot, as a matter of law, prevail on their Title VII claims.3 For the
reasons that follow, the court denies IPA’s motions for summary judgment without
prejudice. The parties’ briefs are hopelessly confused, and demonstrate that a controlling
dispute with regard to IPA’s motions is not factual, but rather centers on the parties’
differing conceptions of what type of case this is, what methods of proof apply, and how
it should be tried. After reviewing the parties’ briefs, the court concludes that it is
necessary to establish the appropriate legal framework for the trial before ruling on IPA’s
motions. This opinion resolves a limited number of legal disputes and frames the
relevant questions so that the parties can provide useful input on the remaining issues.
2 It warrants mention that, although the EEOC is seeking relief on behalf of a large group of plaintiffs, this is not a true class action. Rather, the EEOC is asserting a claim of continuing sexual discrimination in violation of 42 U.S.C. § 2000e-2(a)(1) (2006), pursuant to section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1) (2006), and does not have to meet the requirements for class certification contained in Rule 23 of the Federal Rules of Civil Procedure. See Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 324 (1980); In re Bemis Co., 279 F.3d 419, 421-22 (7th Cir. 2002); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 899 (7th Cir. 1999). Because the EEOC is seeking relief on behalf of a group of aggrieved individuals, however, the court will refer to the claimants as a “class,” as other courts that have considered similar cases have done. See EEOC v. Dial Corp., 156 F. Supp. 2d 926, 946 n.13 (N.D. Ill. 2001); EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1076 n.10 (C.D. Ill. 1998). When it is necessary to refer to individual claimants, the court will do so in accordance with the claimant numbers provided in IPA’s briefing. 3 IPA originally moved for summary judgment as to 90 of the 113 total claimants included in the EEOC’s class, filing its motions in ten separate “volumes.” However, the court struck volumes II through X without prejudice, stating that IPA could reassert the motions contained in those volumes if the arguments were still viable after the court issued its ruling on the first volume. See EEOC v. IPA, No. 01 C 4427, doc. 401 (N.D. Ill. July 6, 2006). Thus, the motions currently pending before the court are only those contained in volume I. In volume I, IPA has moved for summary judgment on the individual claims of claimants 1, 2, 4, 6, 7, 9, 10, 14, and 15.
2

The parties are ordered to provide additional briefing as discussed below. Once the court determines the legal framework that will govern the trial of this case, it will set a new deadline for dispositive motions and the parties may file (or, in IPA’s case, perhaps renew) any summary judgment motions that have merit under the legal standard set forth by the court.
The second matter before the court is the EEOC’s objections to the magistrate judge’s order denying its motion to compel. Because the EEOC’s objections are pertinent to the briefing on IPA’s motions, the court rules on them here as well. The court concludes that the magistrate judge erred in denying the EEOC’s motion; it therefore reverses the magistrate judge’s order and grants the EEOC’s motion to compel the deposition of Suzanne Edwards.
I. BACKGROUND As noted, the primary arguments raised in the parties’ briefs hinge on legal issues, and it is not necessary for the court to engage in an in-depth discussion of the facts. The purpose of this section is merely to present an overview of the case in order to provide context for the court’s ruling.4 IPA is an Illinois corporation engaged in business analysis and consulting work. Its headquarters are in Buffalo Grove, Illinois. Since 1998, virtually all of IPA’s employees have worked at IPA’s facilities in Buffalo Grove, which consist of two separate office buildings. In the first building are IPA’s telemarketers (also known as “business coordinators” or simply “BCs”) and recruiters. The second building houses
4 The facts recited in this section are taken from a combination of documents, including the EEOC’s Second Amended Complaint, IPA’s Local Rule 56.1 Statement of Material Facts, the EEOC’s Local Rule 56.1(b)(3)(B) Statement of Additional Facts, and the EEOC’s Local Rule 56.1(B)(1) Compendium of Exhibits. They are recited in a light most favorable to the EEOC, as is required when ruling on a motion for summary judgment. See Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005).
3

IPA’s management, human resources department, survey department, inside sales department, consulting department, payroll and accounting department, and clerical support. IPA also employs outside sales representatives, who operate primarily as field representatives and thus do most of their work outside of IPA’s business facilities.
The basic structure of IPA’s business is as follows. Business coordinators, working via telephone from their offices in Buffalo Grove, set up appointments for outside sales representatives to meet agents of companies with whom IPA wants to conduct business. At these meetings, the outside sales representatives attempt to sell the companies analyses, or surveys, of their businesses, to be conducted by IPA. If an outside sales representative is successful, then IPA sends a survey analyst (also referred to as a “business analyst”) to conduct the analysis. If the outside sales representative is unsuccessful, an inside sales representative in Buffalo Grove will attempt to make the sale. After a business analyst completes a survey of a company, the business analyst tries to sell the company consulting hours. If the sale is made, then IPA sends a business consultant to continue working with the company.
The majority of the claimants in this lawsuit were employed either as business coordinators or as inside sales representatives at IPA’s Buffalo Grove offices. IPA has a very high turnover rate, particularly in its business coordination department, due to the fast paced and high-pressure environment. IPA employs between 300 and 450 BCs at any given time; according to IPA, it hires approximately 2,000 individuals annually to maintain its business coordination department alone. Company-wide, IPA has hired more than 40,000 employees since 1991.
4

The EEOC is the federal agency charged with the administration, interpretation, and enforcement of Title VII. See 42 U.S.C. §§ 2000e-5, 2000e-6 (2006). This case began in 1998 when two female former IPA employees filed charges with the EEOC complaining that IPA had engaged in unlawful employment practices. After investigating the claims, the EEOC determined that there was reasonable cause to believe that a pattern or practice of sexual discrimination existed at IPA, and ultimately filed the instant suit on behalf of the two women complainants as well as a class of female employees who allegedly were also adversely affected by the unlawful employment practices.5
The EEOC accuses IPA of a wide spectrum of severe sexual harassment. The conduct alleged by the EEOC ranges from demeaning insults to sexual assault, and everything in between. According to the EEOC, women at IPA were regularly propositioned for sex, offered job benefits contingent on the performance of sexual acts (and threatened with negative consequences if they did not agree), and even offered money for sex. More than forty women reported being sexually assaulted in one manner or another — the behavior complained of consists of everything from slapping, pinching, touching, and grabbing to outright attempted rape. Women were regularly subjected to offensive sexual comments in the workplace, including explicit observations regarding their appearance and sexual jokes. Sexually offensive and derogatory language was commonly used by male employees, both in general and directed at female employees. Male employees exposed themselves to female employees. Graphic pornography was displayed on office walls. Strippers and prostitutes were hired to perform for male
5 Pursuant to 42 U.S.C. § 2000e-5(b) and (f)(1), the EEOC is required to meet certain conditions, such as notice, investigation, and an attempt to conciliate, before filing a civil action under section 706.
5

employees’ birthday parties at IPA’s offices during business hours. In short, the EEOC alleges that severe sexual harassment was part of the culture at IPA.
Not only was the sexual harassment at IPA severe, but, according to the EEOC, it was also pervasive and existed at all levels and departments of the company. The EEOC asserts that the conduct described above was perpetrated by a large number of male IPA employees, including both the claimants’ managers and their co-workers. Indeed, the EEOC details a variety of egregious behavior engaged in by IPA’s managing director (a man who owns nearly ninety percent of IPA’s stock), several additional managers, and many other IPA employees. A great deal of the most abhorrent conduct described by the EEOC was allegedly committed by IPA’s upper-level management (although lower-level workers are by no means under-represented in the EEOC’s allegations). For example, the EEOC alleges that IPA’s managing director and several other senior directors regularly propositioned subordinate employees for sex, offering them job benefits and even money in exchange for sexual favors, sexually assaulted female employees, and used offensive and derogatory language toward the women in IPA’s offices. Thus, according to the EEOC, female employees at IPA were objectified and mistreated from the top down, company wide.
The EEOC also alleges that IPA had full knowledge of the extent to which the sexual harassment was occurring in its offices. Not only was the sexual harassment pervasive, but, as noted, it was being committed by many of the employees who were in a position to do something about it. Moreover, many women complained about the behavior to which they were subjected, both to the director of the human resources department and to various managers. The complaints had no effect, for not only were
6

they routinely ignored, but many of the women who complained were actually subjected to additional harassment by the managers to whom they complained. In addition, even when complaints were investigated, usually no action was taken, and so harassers were left unpunished and free to continue their behavior.
The EEOC filed this action on June 12, 2001. A great deal of the litigation since that time has taken place before the magistrate judge, to whom the case was referred for discovery supervision. This court has, however, dealt with several discrete motions, such as the EEOC’s motion to bifurcate, which the court denied on September 2, 2005, because the EEOC had not provided the court with sufficient information regarding the manner in which this case should be tried. See EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427 (N.D. Ill. Sept. 2, 2005) (order denying motion to bifurcate). The case emerged from discovery in February of 2005, and, after spending a great deal of time litigating various motions for sanctions, IPA filed the motions for summary judgment that are currently before the court. It is these motions, as well as the EEOC’s objections to the magistrate judge’s order denying its motion to compel, upon which the court now rules.
II. ANALYSIS Although the court has before it IPA’s motions for summary judgment, the primary question before the court is not whether genuine issues of material fact exist. Rather, the parties’ main dispute centers on the legal framework within which this case must be tried. As shall be seen, the resolution of this issue matters a great deal—in fact, the merits of IPA’s motions hinge upon it. The parties have staked out their respective positions vigorously and have provided the court with briefing that is far too
7

voluminous.6 However, the questions that the court must answer are relatively few.
They are: (1) whether IPA may seek summary judgment with respect to individual
claimants in the EEOC’s class when the EEOC has accused IPA of tolerating a pattern or
practice of sexual harassment and the EEOC seeks class-wide relief as well as individual
damages; and (2) whether the magistrate judge erred by denying the EEOC’s motion to
compel the deposition of Suzanne Edwards. These issues will be addressed in turn.
A. IPA’s Motions for Summary Judgment are Denied Without Prejudice
As noted previously, the briefing submitted by the parties with respect to IPA’s
motions demonstrates that the parties do not share any common view of the governing
law. Each party presumes a certain legal framework, and as a result they talk past one
another rather than address the difficult questions this case presents. In fact, the
applicable law is far from settled; this case sits at the crossroads of several distinct lines
of cases, and presents legal issues that are both complicated and novel. Before the court
can rule on IPA’s motions—or, for that matter, do anything else of substance—it must
first determine the legal framework that will govern this case. Unfortunately, the parties’
briefs provide very little to assist the court in this task, and the court is unwilling to
resolve key questions without meaningful input from the parties.
Before delving into the legal quagmire that this case presents, it is helpful to first
outline some of the key areas of dispute between the parties. In its opening brief, IPA
6 The court notes that it granted each party leave to file briefing well in excess of what is typically allowed for motions of this sort. Very little of the additional briefing, however, was helpful to the resolution of the issues before the court. In fact, the parties used the vast majority of the excess pages they were granted to quibble over extraneous matters. IPA in particular is guilty of this, having spent a significant portion of its opening brief arguing that the EEOC has behaved improperly during the course of this litigation (an issue that has been before the court, and rejected, several times already) and providing lengthy summaries of cases it feels are similar to this one. In the court’s opinion, the parties could have elucidated the relevant issues more effectively with half the briefing they provided. The court expects future submissions to be far more concise and well-directed, and the parties should not expect motions for additional pages to be granted as a matter of course.
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argues that certain individual claimants’ allegations do not establish harassment that is
severe or pervasive7, based on sex8, or sufficiently specific9 to be actionable under Title
VII.10 IPA’s arguments all boil down to a single proposition: although the EEOC has
brought this suit on behalf of a class of claimants, when each individual claimant’s
allegations are viewed in isolation it appears that a number of the claimants cannot
establish a Title VII violation. IPA thus seeks to narrow the class by excluding those
claimants whose allegations are insufficient as a matter of law.
In response, the EEOC argues that it is not required to prove that the sexual
harassment to which each and every individual claimant was exposed is actionable under
Title VII. The EEOC points out that it has alleged that IPA engaged in a pattern or
practice of sexual discrimination. According to the EEOC, the relevant inquiry under the
pattern or practice theory is whether sexual harassment was the standard operating
procedure at IPA, and this inquiry focuses on the entire work environment rather than
7 In volume I, IPA raises this argument with respect to claimants 1, 2, 4, 6, 7, 9, 10, 14, and 15. 8 In volume I, IPA raises this argument with respect to claimants 1, 2, 4, and 6. 9 In volume I, IPA raises this argument with respect to claimants 4, 6, 7, 9, and 14. 10 IPA also argues that certain claimants’ suits are barred because it took remedial action to redress the alleged harassment. In Volume I, IPA raises this argument only with respect to claimant 10. IPA is correct that remedial action may, under certain circumstances, serve as an affirmative defense to a Title VII claim based on hostile work environment. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (an employer may be held vicariously liable for a hostile work environment created by a supervisory employee, but, so long as no tangible employment action was taken, may prove as an affirmative defense that (1) the employer acted reasonably to prevent and promptly correct the offensive behavior; and (2) the plaintiff unreasonably failed to take advantage of preventive opportunities offered by the employer); Tutman v. WBM-TV, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000) (“[An] employer can avoid liability for its employees’ harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.”). However, in a pattern or practice action, which alleges systemic wrongdoing, courts have held that the employer must demonstrate that systemic remedial action was taken. See, e.g., EEOC v. Dial Corp., 156 F. Supp. 2d 926, 953, 956 (N.D. Ill. 2001) (employer must show company-wide remedial action to counter pattern or practice liability). Thus, IPA’s argument that it took proper remedial action with respect to claimant 10 is not a defense to the pattern or practice aspect of this case. Whether IPA can move for summary judgment as to claimant 10’s individual claim on the basis of remedial action prior to the trial of the pattern or practice portion of this case depends on the applicable legal framework—specifically, what effect a pattern or practice finding in favor of the EEOC would have on the individual claimants’ cases. This, as noted below, is a question left open by this opinion.
9

individual experiences.11 Under the EEOC’s theory, the question of whether the sexual
harassment alleged in this case violates Title VII is answered by examining the totality of
the class members’ circumstances rather than those of the individual class members.
IPA’s reply points out that the EEOC seeks not only class-based equitable relief,
as authorized by section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) (2006), but also
individual relief in the form of punitive and compensatory damages, as authorized by 42
U.S.C. § 1981a (2006). IPA agrees, at least implicitly, that the EEOC can proceed under
the pattern or practice theory to obtain equitable relief that will apply to the entire class,
but argues that the EEOC must prove that IPA violated Title VII with respect to each
individual claimant if it wishes to recover individual damages under section 1981a. In its
sur-reply, the EEOC agrees that it is required to establish that the individual claimants are
entitled to section 1981a damages. However, the EEOC argues that it need not establish
every element of each claimant’s case in order to do so. According to the EEOC, in a
hostile work environment sexual harassment case brought under the pattern or practice
theory, certain elements of the cause of action are proven with respect to the class. If a
11 The court notes that the EEOC’s complaint, as in many sexual harassment cases, seems to allege both quid pro quo and hostile work environment theories of sexual harassment. In other words, the EEOC alleges both that its class members were subject to negative employment actions if they did not accede to sexual demands and that its class members were exposed to a sexually abusive severe and hostile work environment in general. As the United States Supreme Court has noted, the distinction between these two types of sexual harassment is “of limited utility” because both are actionable under Title VII. Burlington, 524 U.S. at 751. According to the Burlington Court, the terms “are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out [quid pro quo cases] and those where they are not or are absent altogether [hostile work environment cases].” Id. The distinction is relevant when determining whether there has been an explicit or a constructive alteration in the terms or conditions of employment under 42 U.S.C. § 2000e-2(a)(1) (2006), and thus “the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII.” Id. at 752, 53. For present purposes, the distinction is immaterial; the parties’ arguments are limited to the hostile work environment theory and the EEOC’s response memorandum suggests that this is the only theory upon which it relies. The distinction would be relevant to the proof required at trial, however, for, as discussed in further depth below, the hostile work environment theory—in contrast to the quid pro quo theory— “requires a showing of severe or pervasive conduct.” Id. at 754. Thus, if the EEOC intends to prove its pattern or practice case by relying on the quid pro quo theory, it must make its intentions clear in the next round of briefing.
10

defendant is found to have engaged in a pattern or practice of discrimination with respect to a class of claimants, the court is then required to shift certain burdens to the defendant and apply certain presumptions in favor of the individual plaintiffs on their individual claims. According to the EEOC, the adjudication of individual section 1981a damages is not the same in a pattern or practice case as it would be in a case brought by a single plaintiff.
As the foregoing demonstrates, the parties have very different views of how the law should operate in this case. In order to put them on the same page to the extent possible and lay out the specific legal issues that this opinion leaves unresolved, it is necessary to engage in a fairly complex discussion of Title VII litigation. The following examines: (1) the pattern or practice theory of discrimination; (2) the hostile work environment theory of sexual harassment; and (3) the application of the pattern or practice theory to a hostile work environment sexual harassment case, taking into account that the EEOC seeks individual relief under § 1981a in addition to class-based equitable relief.
1. The Pattern or Practice Theory of Employer Liability The term “pattern or practice” originated with section 707 of Title VII, 42 U.S.C. § 2000e-6 (2006). As originally drafted, section 707(a) authorized the United States Attorney General to bring a civil action seeking injunctive relief “whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described.” Id. §2000e-6(a). The “pattern or practice”
11

language was intended to apply to “repeated, routine” incidents, such as where “a company repeatedly and regularly engaged in acts prohibited by [Title VII].” King v. Gen. Elec. Co., 960 F.2d 617, 622 (7th Cir. 1992) (quoting 110 Cong. Rec. 14270 (1964) (Statement of Senator Humphrey)). Thus, the pattern or practice action is designed to provide a remedy when an employer has engaged in unlawful employment practices, as defined by 42 U.S.C. § 2000e-2(a) (2006), that are systemic and widespread.
In International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), the United States Supreme Court set forth the seminal “pattern or practice” paradigm. In Teamsters, the EEOC brought suit under section 707, alleging that a company and a union had engaged in a pattern or practice of discriminatory hiring, assignment, and promotion policies against minority workers, and sought both injunctive and specific relief.12 Id. at 328-29. The Court noted that, under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the EEOC bore the burden of establishing a prima facie case of unlawful discrimination. Id. at 336. In a pattern or practice case, this requires the EEOC to show that the employer regularly engaged in purposeful discrimination of a group protected by Title VII. Id. at 335, 360. To meet this standard, the EEOC must “prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Id. at 336. Rather, the EEOC must prove, by a preponderance of the evidence, that “discrimination was the company’s standard operating procedure the regular rather than the unusual practice.” Id. To do so, the EEOC “is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s
12 The Court noted that the EEOC had been substituted as a party following the amendments to section 707, but that the United States had been retained as a party for certain purposes. Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 329 n.1 (1977). In this opinion, the court refers to the Teamsters Respondent as the EEOC.
12

discriminatory policy.” Id. at 360. This is because the focus at the initial stage of a pattern or practice case is on the general rather than the specific—in other words, whether discrimination was a regularly followed practice of the employer, not whether the employer discriminated against a particular person. Id.
If the EEOC meets its burden and makes a prima facie showing that a discriminatory policy or practice exists, the burden shifts to the employer to disprove the EEOC’s case. Id. To defeat the EEOC’s prima facie showing, the employer must demonstrate that the EEOC’s evidence “is either inaccurate or insignificant.” Id. at 360. Again, the employer’s defense must counter the EEOC’s showing of a discriminatory pattern rather than simply point out that the employer did not discriminate against certain individuals, for the question is whether a pattern or practice exists, not whether specific employees were subject to discrimination. Id. at 360 n.46. If the employer fails to defeat the EEOC’s prima facie case, then the employer may be held liable for violating Title VII. Id. at 361. A finding that an employer has engaged in a pattern or practice of unlawful discrimination “justifies an award of prospective relief,” such as an injunction. Id.
In Teamsters, the Court held that the EEOC had met its prima facie burden, pointing out that it had presented a large amount of statistical evidence demonstrating the disparities between minority and non-minority employees as well as testimony about specific instances of discrimination. Id. at 337-78. The Court also found that the employer had failed to rebut the EEOC’s prima facie showing. Id. at 342-43. The Court therefore affirmed the decisions of the courts below, finding that the employer was liable
13

under Title VII because it had engaged in a pattern or practice of unlawful employment discrimination. Id.
Although Teamsters held that the employer was liable for unlawful discrimination under the pattern or practice theory, questions of individual relief, such as whether particular employees were entitled to retroactive seniority,13 had not yet been adjudicated. Id. at 362. The Court remanded the case for trial of the individual issues, noting that “[w]hen the [EEOC] seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability stage of the trial to determine the scope of individual relief.” Id. at 361. Rejecting the argument that the EEOC would still be required to prove “that each individual was discriminatorily denied an employment opportunity” at the individual stage, the Court stated that once an employer is found to have followed a discriminatory policy it may be presumed that employment decisions with respect to specific individuals were taken in furtherance of that policy. Id. at 361-62. Therefore, the Court held that, once the EEOC established “that an alleged individual discriminatee unsuccessfully applied for a job, and therefore was a potential victim of the proved discrimination,” the burden would be “on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.”14 Id. at 362. If the employer in fact offered a non-
13 In Teamsters, the EEOC alleged that the employer had hired minorities as servicemen or local drivers rather than as line drivers (which were higher paying and more desirable positions), and that the collective bargaining agreements between the employer and the union forced those servicemen or local drivers who applied for a transfer to the position of line driver to forfeit their seniority. 431 U.S. at 329-30. In addition to injunctive relief, the EEOC sought an order allowing the individual class members to transfer to line driver jobs with full seniority. Id. at 331-32. 14 The Court also held that individual claimants who had not applied for line driver positions could seek retroactive seniority if they could prove that they had been deterred from applying by due to unlawful discrimination. Teamsters, 431 U.S. at 367-68.
14

discriminatory reason for denying the individual claimant’s application, the claimant
would then be entitled to offer evidence that the reason was pretextual. Id. at 362 n.50.
As discussed above, the EEOC argues that this case should proceed under the
pattern or practice theory of employer liability outlined in Teamsters. At the outset, it
should be noted that the EEOC brought this action pursuant to section 706 of Title VII,
42 U.S.C. § 2000e-5 (2006), not section 707. Under section 706, when “a person
claiming to be aggrieved” files a charge with the EEOC “alleging that an employer . . .
engaged in an unlawful employment practice,” the EEOC is empowered to bring a civil
action on the basis of the charge, so long as certain prerequisites to suit are met. Id. §
2000e-5(b), (f)(1). In contrast with section 707, however, section 706 does not explicitly
authorize the EEOC to bring suit to remedy a “pattern or practice” of discrimination.
Thus, an implicit question raised by IPA’s initial briefing is whether the EEOC can rely
on the “pattern or practice” theory when it has expressly stated that this suit is not premised on section 707.15 Although IPA conceded in its reply brief that “the EEOC may
have a right to bring a ‘pattern or practice’ claim,” IPA’s Reply Br. at 4, the court will
nonetheless address this issue to provide context for the remainder of this opinion clarify
the statutory basis for the EEOC’s suit.
As originally drafted, Title VII gave the EEOC only the authority to investigate
and attempt to conciliate charges of discrimination — as noted, the authority to bring
civil suits initially belonged to the Attorney General and to individual plaintiffs. See
15 The statutory basis for the EEOC’s suit has been in issue for some time; when it denied the EEOC’s motion to bifurcate, the court noted, “From the start of this case, there has been confusion about the statutory basis upon which the EEOC is proceeding.” EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427 (N.D. Ill. Sept. 2, 2005) (order denying motion to bifurcate). The court noted that the EEOC had recently clarified the issue by seeking leave to file a second amended complaint that relied upon only section 706. Id. The court did not express an opinion as to whether the EEOC can proceed on a pattern or practice basis under section 706, but denied the EEOC’s motion to bifurcate because the EEOC had failed to provide the court with specific information regarding how the class issues and individual issues should be treated.
15

EEOC v. Waffle House, Inc., 534 U.S. 279, 286 (2002); Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 327 (1980). Congress, however, shortly became convinced that the EEOC should be granted more meaningful enforcement powers. See Gen. Tel., 446 U.S. at 325-26. Thus, in 1972 Congress passed a series of amendments that effected a sea change in Title VII litigation. The purpose of the amendments was “to implement the public interest [in employment equality] as well as to bring about more effective enforcement of private rights.” Id. at 326. Therefore, section 706 was amended to authorize the EEOC to sue “private employers reasonably suspected of violating Title VII.” Id. at 325; see also EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963, 967 (7th Cir. 1996) (same). This had the effect of making the EEOC the chief enforcer of Title VII; as noted in General Telephone, “[t]he EEOC was to bear the primary burden of litigation.”16 446 U.S. at 326. Under section 706, the EEOC acts “at the behest of and for the benefit of specific individuals,” id., because a section 706 suit is brought pursuant to a charge filed by “a person claiming to be aggrieved,” 42 U.S.C. § 2000e-5(b). However, the EEOC “acts also to vindicate the public interest in preventing employment discrimination.” Gen. Tel., 446 U.S. at 326. A section 706 suit is therefore brought in the EEOC’s own name, and because the EEOC is an enforcement agency rather than a representative, it is not required to meet the strictures of Rule 23 of the Federal Rules of Civil Procedure when it sues on behalf of a class of aggrieved individuals. See, e.g., Waffle House, 534 U.S. at 288 (the EEOC is “not required to comply with Rule 23 because it ‘need look no further than § 706 for its authority to bring suit in its own name
16 The amendments to section 706 “did not transfer all private enforcement to the EEOC and assign to that agency exclusively the task of protecting private interests.” Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 326 (1980). Rather, “[t]he EEOC’s suit was intended to supplement, not replace, the private action” already authorized by section 706. Id.
16

for the purpose of, among others, of securing relief for a group of aggrieved individuals’” (quoting Gen. Tel., 446 U.S. at 324, 326)); In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002) (noting that the EEOC is not a class representative even though section 706 suits are brought in its name and that, under General Telephone, “the EEOC is indeed exempt from Rule 23”).
“The 1972 amendments, in addition to providing for a § 706 suit by the EEOC pursuant to a charge filed by a private party, transferred to the EEOC the Attorney General’s authority to bring pattern-or-practice suits on his motion.” Gen. Tel., 446 U.S. at 328; see also 42 U.S.C. § 2000e-6(c) (transferring powers of Attorney General to EEOC). Therefore, the EEOC is now empowered to bring suit on its own initiative under section 707 as well as pursuant to a charge filed under section 706. See, e.g., Harvey L. Walner, 91 F.3d at 968 (noting that the amendments “also transferred to EEOC authority previously vested in the Attorney General under § 707 of Title VII to institute ‘pattern or practice’ lawsuits on its own initiative—i.e., without certain of the prerequisites to a civil action under § 2000e-5(f)”). As with section 706, the EEOC is not required to meet the requirements of Rule 23 to bring a section 707 suit. See Gen. Tel., 446 U.S. at 328.
The primary distinction between a suit brought under section 706 and a suit brought under section 707 does not pertain to the legal theory under which the EEOC may proceed. Rather, the difference is that under section 707 the EEOC proceeds on its own motion while under section 706 the EEOC acts on a charge filed by aggrieved individuals, and thus acts (at least in part) for their benefit; under section 706, the EEOC
17

also must meet certain prerequisites before it brings suit.17 Compare 42 U.S.C. § 2000e6(a) with 42 U.S.C. § 2000e-5(b), (f)(1); see also Harvey L. Walner, 91 F.3d at 968 (noting that a section 707 suit is initiated by the EEOC and is not required to meet the initial requirements of section 706). However, the EEOC may still rely on the pattern or practice theory when it sues under section 706. In fact, the current version of section 707 provides that the EEOC “shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the [EEOC]. All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title.” 42 U.S.C. § 2000e-6(e) (emphasis added). Thus, section 707 itself contemplates that when a charge is filed with the EEOC, and the charge (or the EEOC’s subsequent investigation of it) gives the EEOC reasonable cause to believe that the employer is engaging in an unlawful pattern or practice of discrimination, the EEOC will bring the pattern or practice suit on behalf of the group of persons affected pursuant to section 706. Cf. Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 899 (7th Cir. 1999) (stating that “as the plaintiff in a pattern-orpractice suit under § 706(f)(1) of Title VII . . . the EEOC may seek classwide relief without regard to the standards of Rule 23, for the EEOC does not act on behalf of private parties and a suit under § 706(f)(1) is not a class action) (citation omitted)); Harvey L. Walner, 91 F.3d at 968 (noting that, once the procedural requirements of section 706 are met, the EEOC may bring suit under section 706 “in its own name to challenge a practice or policy that represents ongoing discrimination”); EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1070-71 (C.D. Ill. 1998) (noting that the EEOC can bring a
17 As will be discussed shortly, there is also a distinction between the sections with regard to the relief that may be sought; the EEOC can seek section 1981a damages when it proceeds under section 706, but not when it proceeds under section 707. See 42 U.S.C. § 1981a(a)(1).
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“pattern or practice” action under section 706). The lesson from the foregoing can therefore be summarized as follows: the EEOC may bring suit alleging a pattern or practice of unlawful discrimination under section 706 or section 707, but if the suit arises from a charge filed pursuant to section 706, then the EEOC must meet the prerequisites of section 706 before filing suit.
2. Hostile Work Environment Sexual Harassment With the statutory basis of this case clarified, it is appropriate to address the specific legal theory upon which the EEOC relies. As discussed previously, the EEOC alleges that IPA engaged in a pattern or practice of discrimination by tolerating sexual harassment severe and pervasive enough to create a hostile work environment for women at its Buffalo Grove facilities. The hostile work environment theory derives from 42 U.S.C. § 2000e-2(a)(1) (2006), which provides, in relevant part, that it is an unlawful employment practice “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” The Supreme Court has said that when a workplace is permeated with discrimination that is so severe or pervasive that the working environment itself becomes hostile or abusive, the terms or conditions of employment are constructively altered and a Title VII violation has occurred. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1992); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). In order to succeed on a hostile work environment claim, an individual plaintiff must demonstrate that the work environment was hostile or abusive from both objective and subjective viewpoints. See Harris, 510 U.S. at 21-22; Whittaker v. N. Ill. Univ., 424
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F.3d 640, 645 (7th Cir. 2005). That is, the plaintiff must prove that the complained of conduct is severe or pervasive enough that a reasonable person would find the work environment hostile or abusive. Harris, 510 U.S. at 21; Adusumilli, 164 F.3d at 361. In addition, the plaintiff must demonstrate that he or she subjectively perceived the conduct to be hostile or abusive. See Harris, 510 U.S. at 21-22; see also Whittaker, 424 F.3d at 645 (stating, in sexually hostile work environment case, that plaintiff must demonstrate that “she was subjected to unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature”); Nelson v. Foster Wheeler Constructors, Inc., No. 97 C 4658, 1998 WL 792474, at *3-4 (N.D. Ill. Nov. 9, 1998) (noting that plaintiff must subjectively perceive the conduct to be abusive).
In considering whether the alleged conduct is objectively severe or pervasive enough to alter the terms or conditions of employment, the court must focus on the totality of the circumstances rather than isolated actions. See Harris, 510 U.S. at 23; see also Whittaker, 424 F.3d at 645 (“In considering whether the environment was objectively hostile, the court must consider all of the circumstances . . . .” (citation and internal quotation marks omitted)). This is because the “very nature [of hostile work environment claims] involves repeated conduct,” and the claims are therefore “based on the cumulative effect of individual acts.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Therefore, the court must take into account all acts that may be fairly said to contribute to the hostile work environment.18 Id. at 118. In Harris, the Court set forth the following non-exclusive list of circumstances for courts to examine in
18 Thus, in considering the effect of the statute of limitations contained in section 706 on a hostile work environment claim, the Supreme Court held that so long as at least one “act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for purposes of determining liability.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
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determining whether a hostile work environment exists: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23.
In addition to demonstrating severe or pervasive conduct, a plaintiff that brings a hostile work environment case premised on sexual harassment must also, quite obviously, demonstrate that the severe or pervasive conduct is based on sex—i.e., that the conduct was directed at the plaintiff because of his or her sex. See Whittaker, 424 F.3d at 645; see also Hawkins v. Groot Indus., Inc., No. 01 C 1731, 2003 WL 22078382, at *6 (N.D. Ill. Sept. 5, 2003) (noting, in racially hostile work environment case, that plaintiff was required to demonstrate that harassment was based on race). Finally, the plaintiff must demonstrate that there is a basis for holding the employer liable for the sexual harassment. See Whittaker, 424 F.3d at 645. When the plaintiff’s suit is premised on sexual harassment perpetrated by a co-worker, the plaintiff must demonstrate that the employer was negligent in order to hold the employer liable. See Adusumilli, 164 F.3d at 361. In other words, the plaintiff must demonstrate that the employer knew or should have known about the sexual harassment but failed to take appropriate action to prevent it. See EEOC v. Dial Corp., 156 F. Supp. 2d 926, 952-53 (N.D. Ill. 2001). When a plaintiff’s suit is premised on sexual harassment by a supervisor, the employer may likewise be held liable on the basis of negligence. See Burlington, 524 U.S. at 759. However, employers may also be held liable for harm caused by supervisors under agency principles. Id. at 764. Therefore, employers may, subject to certain defenses depending on whether tangible employment action was taken or not, be held vicariously
21

liable for harassment perpetrated by supervisors. Id.; see also Adusumilli, 164 F.3d at 361 (noting that “employers are vicariously liable for hostile environment sexual harassment by supervisors”).
The elements of a claim for hostile work environment based on sexual harassment discussed above are well-settled and are not in dispute in this case. What is in dispute is how a hostile work environment case brought by the EEOC should be tried when the EEOC proceeds under the pattern or practice theory, and it is to this issue that the court now turns.
3. Hostile Work Environment and the Pattern or Practice Theory As the summary of the parties’ arguments provided at the outset of this opinion demonstrates, the EEOC and IPA have vastly different ideas about what it means to try a hostile work environment case under the pattern or practice model. As much as it pains the court to absolve the parties of blame (for their tactics have certainly made the resolution of this case much more difficult), their disagreement is not only the result of litigiousness, but stems also from the fact that this case sits at the intersection of two lines of Supreme Court doctrine that do not fit together particularly well. The pattern or practice model is designed to allow the EEOC to prevent systemic, widespread discrimination, and the relevant inquiry in a pattern or practice action is whether the employer regularly discriminated against a group protected by Title VII. See Teamsters, 431 U.S. at 360-61. To prove a pattern or practice of discrimination, the EEOC does not have to show that any specific claimant was the victim of discrimination. Id. at 360. Rather, the EEOC must establish that the company’s behavior in the aggregate supports an inference that it had a discriminatory policy. Id. at 336. In cases like Teamsters,
22

where the individual plaintiffs’ claims focus on the employer’s decisions to deny their requests for promotion, the impact of a finding that an employer had a policy of discrimination is obvious—the employer’s decisions with respect to the individual claimants are presumed discriminatory because of the policy. Id. at 361-62.
The hostile work environment test, on the other hand, is designed to assess—from both objective and subjective viewpoints—whether the specific harassment to which a plaintiff was exposed was so severe or pervasive that it altered the terms or conditions of her employment. See Harris, 510 U.S. at 21-22; Whittaker, 424 F.3d at 645. In harassment cases, the impact of a finding that a company had a discriminatory policy (presumably of tolerating harassment rather than enforcing it; it is hard to believe that any company would actually order its employees to engage in harassment) is less clear. That an employer has a pattern or practice of tolerating harassment by its employees does not necessarily make it any more likely that the harassment to which an individual claimant was exposed was severe or pervasive. Thus, a pattern or practice case based on hostile work environment claims presents a conflict between the consideration of the employer’s attitude toward a protected group as a whole and the adjudication of issues that may be unique to each individual perpetrator and each individual claimant. This is a tension that has been recognized by other courts that have considered similar cases. See, e.g., Mitsubishi, 990 F. Supp. at 1071 (“The pattern or practice model . . . breaks down for sexual harassment claims . . . because the two seminal cases defining the essence of a claim of sexual harassment—Meritor and Harris—require consideration of individual issues and defenses particular to an individual claimant.” (citations omitted)).
23

Further complicating matters is the issue of the relief sought by the EEOC, the most contentious issue addressed in the parties’ briefs. As noted previously, IPA moved for summary judgment as to a number of the individual claimants in this case, and in response the EEOC argued that it is not required to prove each individual’s right to relief because this is a pattern or practice case. In its reply brief, IPA refined its argument, pointing out that the EEOC is seeking compensatory and punitive damages pursuant to section 1981a in addition to the injunctive relief authorized by section 706. According to IPA, the EEOC cannot recover section 1981a damages in a pattern or practice case because section 1981a damages require individualized proof. IPA argues that if the EEOC wishes to pursue individual damages under section 1981a, it must prove each individual claimant’s hostile work environment claim in its entirety. The court considers these contentions in turn.
In 1991, Congress amended Title VII by adopting section 1981a, which allows “a complaining party” to recover compensatory and punitive damages in an action brought pursuant to section 706. 42 U.S.C. § 1981a(a)(1). The term “complaining party,” as defined in the statute, includes the EEOC. Id. § 1981a(d)(1)(A). The Supreme Court discussed the amendments in Waffle House, stating, “As a complaining party, the EEOC may bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages.” 534 U.S. at 287. The Court also discussed the General Telephone decision, noting that the 1991 amendments took place after the Court held in General Telephone that the EEOC is not subject to the class certification requirements of Rule 23. Id. at 288 (noting that suits brought by the EEOC “should not be considered representative actions subject to Rule
24

23.” (quoting Gen. Tel., 446 U.S. at 326) (internal quotation mark omitted)). According to the Court, the 1991 amendments were adopted “[a]gainst the backdrop” of, inter alia, General Telephone, and therefore the 1991 amendments merely expanded the remedies available in certain types of Title VII litigation but did not otherwise alter the Title VII landscape. Id. at 288.
In Bemis, a case decided by the United States Court of Appeals for the Seventh Circuit shortly after Waffle House, the EEOC sued a company under section 706 on behalf of a class of employees, alleging racial harassment and seeking relief under both section 706 and section 1981a. 279 F.3d at 420. In an argument strikingly similar to that put forth by IPA here, the defendant contended that the EEOC could not seek section 1981a damages unless it met the class certification requirements of Rule 23 because “the nature and extent of the injuries suffered by the members of the class” would necessarily vary. Id. at 421. Citing Waffle House, the Seventh Circuit rejected the argument, noting that section 1981a merely added to the “arsenal of remedies” available to the EEOC but did not change the manner in which the EEOC is entitled to try its cases. Id. at 422.
Waffle House and Bemis dispose of IPA’s first argument. IPA agrees that the EEOC is not subject to Rule 23, but IPA’s contention—that this case cannot proceed under the pattern or practice theory because the EEOC seeks damages that require individual proof—is merely a variation of the argument made in Bemis. However, the EEOC is not foreclosed from trying this case under the pattern or practice methodology simply because it seeks punitive and compensatory damages on behalf of the individual claimants. The EEOC is statutorily entitled to do so, and IPA’s position ignores the nature of pattern or practice litigation, which is not based on individual claims. See, e.g.,
25

King, 960 F.3d at 622 (noting that a plaintiff must prove more than individual acts of
discrimination to establish a pattern or practice); Ferguson v. Foster Wheeler
Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *2 (N.D. Ill. July 13, 1999) (“To
force the EEOC to prove each individual claim would be contrary to the way that pattern
or practice claims operate.”).
While IPA’s contention that the EEOC cannot seek section 1981a relief in a
pattern or practice case is clearly misplaced, its second argument—that the EEOC must
present individualized proof in order to recover section 1981a damages—has merit.
Under Teamsters, a pattern or practice finding allows a court to only award “prospective
relief.”19 431 U.S. at 361. The court therefore agrees with IPA that the EEOC is required
to do more than simply prove that IPA had a policy of tolerating sexual harassment if it
wishes to recover section 1981a damages. To its credit, the EEOC does not dispute this
19 IPA also points to Lemon v. International Union of Operating Engineers, 216 F.3d 577 (7th Cir. 2000) and Jefferson v. Ingersoll International, Inc., 195 F.3d 894 (7th Cir. 1999) to support its argument that the EEOC must offer individualized proof to recover under section 1981a. In both Lemon and Jefferson, a class of plaintiffs brought suit under Title VII alleging race discrimination and seeking equitable relief under section 706 as well as individual damages pursuant to section 1981a. Lemon, 216 F.3d at 579-81; Jefferson, 195 F.3d at 900. In each case, the district court had certified the class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, which deals with class actions seeking “injunctive relief . . . with respect to a class as a whole.” Fed. R. Civ. P. 23(b)(2); see Lemon, 216 F.3d at 579; Jefferson, 195 F.3d at 900. In each instance, the Seventh Circuit vacated the district court’s decision. Lemon, 216 F.3d at 582; Jefferson, 195 F.3d at 899. The Seventh Circuit noted that section 1981a damages “depend[] on an individualized analysis of each class member’s circumstances.” Lemon, 216 F.3d at 581. The court therefore held that a district court may not certify a case in which the plaintiffs seek both equitable relief and section 1981a damages as a class action under Rule 23(b)(2) unless the individual damages sought are “merely incidental to the equitable relief.” Jefferson, 195 F.3d at 899. If the damages are “more than incidental,” the court may either certify the class under Rule 23(b)(3), which requires that questions of fact or law common to the class predominate over individual issues, or bifurcate the proceedings by certifying a Rule 23(b)(2) class for equitable relief and, if possible, a Rule 23(b)(3) class for damages. Id. Thus, both Lemon and Jefferson were concerned with the effect of section 1981a damages on class certification issues under Rule 23, a rule which does not apply to the EEOC. This fact was not missed in Jefferson; the court noted that the EEOC had moved to intervene, which could moot the Rule 23 issue if the EEOC chose to seek the same relief as the individual plaintiffs. 195 F.3d at 899-900. Neither Lemon nor Jefferson (or, to the court’s knowledge, any other Seventh Circuit case) considered the issue here—how to address section 1981a damages in a case where the EEOC seeks equitable relief under the pattern or practice theory. However, the court agrees with IPA that Lemon and Jefferson are relevant to the limited extent that they indicate the Seventh Circuit’s general concern with how class-based equitable relief and individual damages should be treated in the same case.
26

point, but instead readily concedes that if it prevails as to the pattern or practice aspect of this case, it will still have to establish that the individual claimants are entitled to section 1981a damages. This concession is fine in the abstract, but it offers little to help the court decide how to try this case. The problem—which IPA’s concern over section 1981a damages throws into sharp relief—is that neither IPA nor the EEOC has presented focused argument regarding what the EEOC must prove in order to prevail on its pattern or practice theory and receive class-wide equitable relief, and what more it must prove in order to establish that the individual claimants are entitled to damages under section 1981.
The precise question for the parties, then, is how Teamsters should apply to this case. It is not enough to state the obvious point that Teamsters provides the framework for a pattern or practice action, as the EEOC has done thus far. As discussed above, Teamsters was a race discrimination case in which it was alleged that the employer had a policy of discriminating against minorities when making hiring and promotion decisions. Id. at 328-29. Once it was established that the employer had a policy of disfavoring minorities (by demonstrating a pattern or practice of such behavior), the primary question remaining at the individual stage was whether each individual claimant had applied for a promotion; if so, it could be presumed—in the absence of evidence to the contrary—that the claimant had been injured by the policy. Id. at 361-62.
In this case, however, it is less clear what the effect of a pattern or practice finding should be on the individual claimants. Presumably, the EEOC intends to prove that IPA had a company policy of tolerating sexual harassment by presenting evidence (both statistical and otherwise) of conduct by various perpetrators against various victims that,
27

taken as a whole, demonstrates a pattern or practice of allowing such behavior. Assuming that the EEOC prevails on this aspect of the case, the court has concerns about what presumptions such a finding would require. In a hostile work environment sexual harassment case, the plaintiff must show that the harassment to which she was exposed was so severe or pervasive—both objectively and subjectively—that it altered the terms or conditions of her employment by creating a hostile work environment. See Harris, 510 U.S. at 21-22. It is not clear why a finding that IPA had a company policy of tolerating sexual harassment by its employees would make it any more likely that the harassment suffered by an individual claimant was severe or pervasive enough to be actionable. In other words, why should the court presume that an individual claimant suffered severe or pervasive sexual harassment simply because IPA had a policy of tolerating sexual harassment? Such a presumption might follow if the company had a policy of directing its employees to commit severe sexual harassment, but the EEOC does not appear to allege such a policy. Perhaps the Teamsters presumption is much more pertinent to the issue of whether the individual claimants can establish a basis for IPA’s agency liability in this case. Stated differently, a finding that IPA knew of and tolerated sexual harassment in general might support an inference that IPA knew of and tolerated the harassment to which an individual claimant was exposed.
In any event, the parties have not specifically addressed the application of Teamsters to this case, and it is time for them to do so, the court having resolved their threshold arguments.20 Accordingly, the court orders the parties to provide additional
20 The court notes that the EEOC has cited to several district court cases that have also considered the method of proof for a hostile work environment case brought by the EEOC under the pattern or practice theory. See Dial, 156 F. Supp. 2d at 956-58; U.S. Equal Employment Comm’n v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *2-3 (N.D. Ill. July 13, 1999); Mitsubishi, 990 F.
28

briefing on the following issues: (1) what, specifically, the EEOC must prove in order to
establish that IPA has violated Title VII by allowing a pattern or practice of employment
discrimination; (2) what, specifically, the EEOC must prove in order to recover damages
under section 1981a on behalf of the individual claimants; and (3) what effect, if any, a
finding in the EEOC’s favor as to the pattern or practice aspect of this case should have
on the individual aspects of this case. The task at hand is to determine the correct way to
try this case; the parties should provide comprehensive, thoroughly researched analyses
of the specific elements and burdens that will make up the governing legal framework.
The court’s discussion of Teamsters is not, at least at present, a signal of its intentions,
but merely of its concerns. The EEOC will file the opening brief, as it is the plaintiff in this case. 21 IPA will be given the opportunity to respond, and the EEOC may then reply.
The briefs should be submitted in accordance with the time frame contained in the
attached minute order.
B. The EEOC’s Motion to Compel Suzanne Edwards’ Deposition is Granted
In its summary judgment memorandum, IPA spends several pages arguing that
the EEOC has engaged in misconduct throughout this litigation; IPA accuses the EEOC
of aggressively soliciting claimants without regard to the merits of their claims, inflating
minor accusations of wrongdoing, and even fabricating allegations of sexual harassment.
Supp. at 1073. The court has reviewed these cases, and is not certain that they properly apply Teamsters to the hostile work environment elements set forth by Harris; it does not appear that any was tried and none was reviewed by an appellate court. Regardless, the court declines to follow these cases blindly, particularly when the parties have not had the opportunity to provide focused input. 21 In its response brief to IPA’s motions for summary judgment, the EEOC indicates that it intends to renew its motion to bifurcate at the time of the pretrial order. The EEOC notes that Teamsters contemplated a bifurcated trial, and that bifurcation has been ordered in similar cases. See Dial, 156 F. Supp. 2d at 956-58. As this court noted when it denied the EEOC’s original motion to bifurcate, it may be amenable to bifurcating the pattern or practice issues from the individual issues once it has determined what each aspect of this case entails. As the additional briefing ordered in this opinion is directed to that question, the court expects that the EEOC may renew its motion to bifurcate in conjunction with its opening brief.
29

To support this argument, which may be inflammatory rather than substantial, IPA leans heavily on the affidavit of Suzanne Edwards (“Edwards”). In its response brief, the EEOC points out that it attempted to depose Edwards, but the magistrate judge denied its motion to compel. The EEOC’s objections to the magistrate judge’s order are currently pending before the court, and, since IPA has put Edwards in issue by relying on her sworn statement in support of its motion for summary judgment, the court rules on the EEOC’s objections here as well.
According to the EEOC, it interviewed Edwards regarding sexual harassment at IPA in May of 2004; Edwards was no longer employed by IPA at this time.22 Edwards told the EEOC that she had knowledge about a sexual assault perpetrated on claimant number 179 by an IPA manager. She also told the EEOC about a variety of sexual comments that had been made to her and other female employees at IPA. Shortly after the interview, the EEOC alleges that Edwards gave it permission to identify her as a class member in this case, and the EEOC did so. The EEOC sent IPA a summary of Edwards’ allegations along with those of claimant number 179; Edwards’ story corroborated that told by claimant 179 regarding the alleged sexual assault.
In the fall of 2004, the EEOC made several unsuccessful attempts to contact Edwards to schedule her deposition, which had been requested by IPA. On November 4, 2004, Edwards sent the EEOC a letter stating that she did not want to be involved with the litigation and asking that it stop contacting her. The EEOC therefore informed IPA that it was dropping Edwards as a class member. However, the EEOC learned in January
22 Edwards’ affidavit states that she was employed by IPA from April of 2002 until late spring of 2004, and once again beginning in the fall of 2004. Nothing in the record indicates whether Edwards is still employed by IPA, but her affidavit, given on February 18, 2005, indicates that she was employed by IPA as of that date. Because IPA has provided nothing to the contrary and continues to rely on Edwards’ affidavit, the court assumes that Edwards is still in IPA’s employ.
30

of 2005 that Edwards had actually returned to work at IPA in the fall of 2004. The EEOC thereafter served Edwards with a subpoena to appear for a deposition and to produce documents related to her compensation at IPA, and IPA moved to quash the subpoena.23
On February 9, 2005, the magistrate judge held a hearing on IPA’s motion to quash. At this hearing, IPA represented to the magistrate judge that the Suzanne Edwards in its employ was not the same Suzanne Edwards who had previously been a class member in this case. The magistrate judge therefore issued an order stating that he would grant IPA’s motion to quash Edwards’ subpoena unless the EEOC could show that the Suzanne Edwards it sought to depose was the same person it had previously interviewed and made a class member.
Following the motion hearing, the EEOC sent IPA a letter setting forth information regarding the Suzanne Edwards it sought to depose, including the address the EEOC had for her in its files. In response, IPA did not verify whether this was the same Suzanne Edwards it employed, but instead simply stated that it intended to seek a protective order to prevent Edwards’ deposition. The EEOC therefore filed with the magistrate judge a motion to compel Edwards’ deposition. In IPA’s opposition brief to the EEOC’s motion, it included Edwards’ affidavit—the same affidavit IPA filed with this court along with its motion for summary judgment. The affidavit makes clear that the Suzanne Edwards employed by IPA in February of 2005 is the same one who was previously one of the EEOC’s claimants. In her affidavit, however, Edwards states that she never witnessed and was never subject to any sexual harassment or discrimination at
23 IPA actually moved to quash the EEOC’s subpoena of another witness in addition to Edwards. The magistrate judge denied IPA’s motion as to the other witness, but ultimately granted it as to Edwards.
31

IPA. According to Edwards, she conveyed this to the EEOC when it began contacting
her in the spring of 2004, but the EEOC tried to get her to agree to certain allegations
anyway. Edwards also states that she never reviewed or authorized the summary the
EEOC sent to IPA regarding her claims, and never agreed to be a claimant in this suit.
On the basis of these statements, IPA accused the EEOC of wrongdoing similar to that
currently alleged in its summary judgment memorandum, and asked the magistrate judge
to deny the EEOC’s motion to compel, quash Edwards’ deposition, and impose sanctions on the EEOC.24
On February 23, 2005, the magistrate judge denied the EEOC’s motion to compel.
The record reflects that the magistrate judge’s decision was based on his belief that
Edwards’ affidavit indicated she had no information regarding the EEOC’s suit against
IPA and on a statement by counsel for IPA indicating that IPA had no intention of using
Edwards as a witness. Tr. of Proceedings on Feb. 23, 2005, at 6-7. The magistrate judge
also denied IPA’s motion for sanctions and ordered discovery closed; the discovery
deadline had been February 14, 2005.
IPA filed a motion with this court objecting to the magistrate judge’s decision denying IPA’s requested sanctions.25 In its motion, IPA raised, along with other
arguments, virtually the same allegations of discovery misconduct against the EEOC that
24 IPA’s request for sanctions was based not just on Edwards’ affidavit, but on its generalized assertion— repeated in its motion for summary judgment—that the EEOC has aggressively solicited claimants and filed claims without proper investigation throughout this litigation. 25 IPA’s motion was actually filed as a renewed motion for sanctions—the court had already considered a motion filed by IPA objecting (on the same grounds) to a prior order by the magistrate judge denying sanctions. This court denied IPA’s original motion in its entirety on October 7, 2004, because IPA’s objections were “long on outrage and short on the kind of information the court needs to evaluate [the magistrate judge]’s ruling.” EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427, at *2 (N.D. Ill. Oct. 7, 2004 (order denying motion for sanctions). The court noted that if IPA wished the court to consider its motion for sanctions it would have to provide adequate support for its arguments, and listed categories of information IPA should provide in the event it renewed its motion. After the magistrate judge again denied IPA’s request for sanctions on February 23, 2005, IPA filed its renewed motion for sanctions with this court.
32

it has once again raised in its motion for summary judgment—that the EEOC forcefully solicited claimants and intentionally inflated minor claims in order to bolster its case against IPA. This court ordered IPA to submit additional briefing because it had marshaled strikingly little record evidence in support of its arguments.26 Ultimately, the parties filed four rounds of briefs regarding IPA’s motions for sanctions. Even with all of the additional briefing, IPA never provided adequate support for any of its arguments, and the court denied IPA’s motion.
With the relevant procedural posture framed, it is appropriate to now consider the EEOC’s objections to the magistrate judge’s order. A district court’s review of a magistrate judge’s ruling on non-dispositive pretrial matters, such as the discovery issue currently before the court, is governed by the standard set forth in Rule 72(a) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1)(A) (2006). That standard provides that the district court Ashall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). Under the clear error standard of review, a district court should not set aside a magistrate judge’s decision unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Fid. Nat’l Title Ins. Co. of New York v. Intercounty Nat’l Title Ins. Co., No. 00 C 5658, 2002 WL 1433584, at *2 (N.D. Ill. July 2, 2002) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see also F.T.C. v. Pacific First Benefit, LLC, 361 F. Supp. 2d 751, 754 (N.D. Ill. 2005) (noting that a district court should only reverse the magistrate judge if a “clearly
26 While IPA’s failure to support its arguments adequately would have been grounds to deny its motion, the court allowed IPA another chance to submit the categories of information the court had outlined in its order of October 7, 2004. See EEOC v. Int’l Profit Assocs., Inc., No 01 C 4427, at *3 (N.D. Ill. May 31, 2005) (order requiring additional briefing).
33

apparent mistake” has been made). This deferential review requires the district court to distinguish the situation in which it thinks it would have rendered a different decision from the situation in which it is firmly convinced it would have done so, and reverse the magistrate judge’s ruling only in the latter instance. See Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1008 (7th Cir. 1994).
The EEOC contends that the magistrate judge’s order denying its motion to compel Edwards’ deposition constitutes clear error for several reasons. First, the EEOC argues that Edwards has information relevant to its claims because she witnessed and was subject to sexual harassment at IPA and has knowledge about the sexual assault of a current claimant by an IPA manager. According to the EEOC, Edwards related information about this sexual assault during her interview that the EEOC has been unable to obtain elsewhere—specifically, IPA’s knowledge of previous similar actions by the manager in question. Second, the EEOC asserts that, even under IPA’s theory of the case, Edwards has relevant information because IPA continues to rely on Edwards’ affidavit to support its argument that the EEOC is exaggerating the wrongdoing that occurred at IPA. Finally, the EEOC notes that Edwards has knowledge about the social climate at IPA between 2002 and 2004, information that is pertinent to the EEOC’s theory that IPA’s conduct amounts to an ongoing pattern and practice of sexual discrimination and also to the amount of punitive damages that may be imposed on IPA. The EEOC’s position is that the magistrate judge’s decision to quash Edwards’ subpoena based on the information contained in her affidavit did not adequately take into account these considerations.
34

IPA’s response focuses almost entirely on the relevancy of any information Edwards may have. IPA argues that Edwards did not experience sexual harassment of any sort during her time at IPA and that the EEOC manufactured the information it says Edwards has; in essence, IPA merely reiterates the statements Edwards made in her affidavit. Thus, IPA contends that Edwards does not have knowledge of anything that would be relevant to the EEOC’s claims. IPA also contends that Edwards’ claims regarding the EEOC’s alleged misconduct in joining her as a claimant are not relevant to its defenses, but only to its motion for sanctions. According to IPA, “IPA’s defenses in this cases are multi-faceted some of which will be set forth in IPA’s yet to be filed motions for summary judgment.” Def.’s Resp. at 3.
The court agrees with the EEOC, and concludes that the magistrate judge erred by denying the EEOC’s motion to compel Edwards’ deposition. There is no question that Edwards has information relevant to this case, regardless of which party’s version of Edwards’ story is believed. From the EEOC’s perspective, Edwards has information relevant to its claims that it has not been able to discover elsewhere. IPA’s argument on this point is not persuasive because it presumes the truth of the statements in Edwards’ affidavit—namely, that the EEOC manufactured the information it claims Edwards provided to it and improperly filed a claim on her behalf—something that has been hotly disputed throughout this litigation. Indeed, IPA can hardly argue that the EEOC’s alleged misconduct is clearly established at this procedural stage because the court gave IPA multiple chances to prove these allegations in connection with its motion for sanctions and IPA was unable to do so. Because IPA already had several bites at this apple, IPA’s argument that Edwards does not have information relevant to EEOC’s
35

claims because EEOC made up the information it claims Edwards gave it during her interview is not well taken.
Even if IPA’s view of Edwards’ testimony is correct, Edwards still has information relevant to this case. At this point in the litigation, the court simply cannot lend credence to IPA’s argument that Edwards’ testimony is relevant only to its sanctions motion, not its defenses. In fact, the dominant theme of IPA’s defense, at least to this point, seems to be that EEOC has improperly inflated otherwise shaky claims of sexual harassment in order to bolster its case against IPA. IPA has continually relied on Edwards’ affidavit to support these assertions. In its motion for summary judgment, IPA raises this argument once again, devoting multiple pages of its memorandum to the EEOC’s alleged misconduct. Once again, IPA relies on Edwards’ affidavit to support its argument. IPA cannot be heard to say that Edwards’ affidavit is not relevant to its defenses in this case when it has put the truth of Edwards’ assertions in issue countless times, both before the magistrate judge and before this court. Even if IPA does not intend to call Edwards as a witness at trial, IPA cannot shield Edwards from being deposed when it relies on her claims to support its request for summary judgment.
This is not to say that the court does not understand the magistrate judge’s perspective. The discovery process in this case was long and arduous, and the EEOC was seeking to depose Edwards on the literal eve of the discovery cut-off. Nonetheless, the court cannot agree with the magistrate judge’s conclusion as to the pertinence of Edwards’ deposition. Edwards appears to possess information relevant to this litigation, information that has only become more relevant as this case progresses due to IPA’s continued reliance on Edwards’ affidavit. Accordingly, the court reverses the magistrate
36

judge’s ruling and grants the EEOC’s motion to compel. The court emphasizes that it is not reopening discovery, but is allowing only this single deposition. The court also stresses that Edwards’ deposition must take place post haste given the very late stage at which it is being allowed. The EEOC is therefore ordered to take Edwards’ deposition in accordance with the time frame set forth in the attached minute order.
III. CONCLUSION For the reasons set forth above, IPA’s motions for summary judgment are denied without prejudice. The parties are ordered to submit legal memoranda as specified in this opinion. The court also concludes that the magistrate judge erred by denying the EEOC’s motion to compel Edwards’ deposition, and therefore grants the EEOC’s motion.
ENTER: ____________/s/_______________ JOAN B. GOTTSCHALL United States District Judge DATED: March 16, 2007
37

 </s> Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 1 of 9
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Civil Action No.
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Trial By Jury Demanded

COMPLAINT Plaintiff, RHONDA PORTER, states as follows:
Jurisdiction and Venue

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Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; and also for relief.

pursuant to a pendant state claim.

2. This Court has jurisdiction of this action under 28 U.S.C. § 2000e-5(f)(3) and 28

U.S.C. § 1367.

3. Venue is proper pursuant to 28U.S.C. § 1391(a).

Parties

4. Plaintiff, RHONDA PORTER is a female citizen ofilie United States and Illinois.

At all times relevant herein, Plaintiff has resided in the district of this Court. Plaintiff was an

employee of ilie Defendant INTERNATIONAL PROFIT ASSOCIATES, INC. ("IPA") from

November, 1998 until on or about August 28, 2001, when she was unlawfully fired.

5. Defendant IPA is an Illinois business entity. Defendant is and was at all relevant times

herein, an "employer" wiiliin the meaning of Title VII, 42 U.S.C. § 2000e(b).

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 2 of 9

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6. On or about January 7, 2002, and within 300 days of the last act of discrimination,

Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity

Commission ("EEOC"), a copy of which is attached as Exhibit "A" to this Complaint.

7. On or about January 24, 2002, a "Notice of Right to Sue" was issued from the

District Office of the EEOC for the charge of discrimination (a copy of which is attached to this

Complaint as Exhibit "B"), entitling Plaintiff to institute a civil action in the appropriate Federal

District Court within 90 days of the date of receipt of the notice. The notice was received by

Plaintiff on January 28, 2002.

COUNT I (Federal Claim-Sexual Discrimination)

8. Plaintiffs last position with IPA was as a business coordinator.

9. At all times relevant hereto, Plaintiff performed her employment duties in a

satisfactory marmer.

10. Shortly after she began to work at IPA, and continuing throughout her employment

with IPA, Plaintiffwas sexually harassed and sexually discriminated against by management and/or

supervisors of IPA. This unlawful discrimination and harassment included, but was not limited to

the following:

a. Being approached by Gordon Gurney and Joe Woods, supervisors at IPA, and being told by them that she must have sex with Dan Druggan, the Director of Sales for IPA. She was further told that if she did not agree to have sex with him, she would have problems at IPA. She was also told that she was doing well at IPA and if she wanted to continue to do well, she would do what she was told.;
b. Dan Druggan, Director of Sales for IPA, forcing Plaintiff to have sex with him under the threat that if she did not, she would have problems at IPA;
c. Being touched and/or hit on various parts of her body, without her consent, by management and supervisors ofiPA, including but not limited to Gordon Gurney, David Soskin and Tony Jones. The areas ofPlaintiffs body that were touched and/or hit included the breast, buttocks, vagina and back.

2

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 3 of 9

d. Bein'''llled filthy sexual names and being tQY"',?lthy sexual things by

supervIsors and managers ofIPA, including but nv ••tmited to Tyler Burgess,

Gordon Gurney, Tony Jones and David Soskin. The names and statements

included, but were not limited to the following: "ghetto whore", statements

about Plaintiffs' nipples, statements about Plaintiff's breasts, and statements

about Plaintiff being a bitch". Tony Jones also told Plaintiff constantly that

he and she would be "good together" sexually;

e. Supervisor Tony Jones coming up to Plaintiff and rubbing his penis against

her, stating that he had a "man size anaconda";

f.

Gordon Gurney telling Plaintiff to have sex with another woman while Dan

Druggan either watched or "joined in"; and

g. Supervisors and management breaking into Plaintiffs' phone calls with her

husband and making sexual comments which included but were not limited

to stating that Plaintiff was "going to go home with me" (referring to the

. supervisor or manager);

II. The acts alleged above were directed to Plaintiff because she is female, and the acts

created a hostile work environment.

12. In 200 I, Plaintiffparticipated in an investigation the Equal Employment Opportunity

Commission ("EEOC") was doing with regard to IPA. The investigation had to do with numerous

claims of women that were sexually discriminated against and sexually harassed when they worked

atIPA.

13. Approximately two weeks before Plaintiff was fired, Gordon Gurney told Plaintiff

to have sex with Dan Druggan and Plaintiff refused. Nevertheless, Mr. Gurney kept coming back

to Plaintiff again and again and Plaintiff kept refusing. At that point, Mr. Gurney stated that if

Plaintiff did not have sex with Mr. Druggan, Mr. Druggan would be upset and "something" would

happen to Plaintiff's job and that she would be "sorry".

14. On or about August 15,200 I, and after the events referred to in paragraph 12, Plaintiff

was approached by managers and supervisors ofIPA, and falsely accused of being drunk. Further,

Plaintiffwas assaulted, and physically and emotionally injured, by the managers and supervisors, and

had to seek emergency care at a hospital.

3

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 4 of 9
15. Plaintiff wa<\lsely accused and assaulted by manage>''\lld supervisors at IPA because she refused to have sex with Dan Druggan and/or because Plaintiff had participated in an investigation performed by the EEOC with regard to claims ofsexual discrimination that took place at IPA.
16. Plaintiff was not allowed to work at IPA after August 15, 2001. On or about August 28,2001 Plaintiffwas told she was discharged. This discharge was in retaliation forrefusing to have sex with Dan Druggan and/or for participating in the EEOC investigation referred to above.
17. IPA supervisory and management level personnel had knowledge of each and every act alleged above, and did nothing to remedy the situation, and as a result, the acts of sexual harassment and sexual discrimination continued throughout Plaintiffs employment with IPA, and unlawful retaliation also took place. Due to Defendant's discriminatory behavior, Plaintiff has suffered monetary damage and emotional pain and suffering.
WHEREFORE, Plaintiff, RHONDA PORTER, prays that this court enter jUdgement in her favor on Count I and against Defendant, INTERNATIONAL PROFIT ASSOCIATES, INC. as follows:
a. That a finding be entered that Defendant violated Title VII by sexually . discriminating against Plaintiff;
b. That Plaintiff be awarded the maximum monetary damages available; c. That Plaintiff be awarded all wages, benefits and other compensation due
to her being wrongfully fired by the IPA; d. That Plaintiff be awarded punitive damages; e. That Plaintiff be awarded reasonable attorney's fees and costs; and f. That Plaintiff be awarded such other relief as this court deems proper.
COUNT II (Federal Claim-Retaliation) 18. Plaintiff adopts and realleges the allegations of paragraphs 1-17 as though fully set forth herein.
4

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 5 of 9
WHEREFORE, Pla;jf, RHONDA PORTER, prays that this(~ enter judgement on
Count II in her favor and against Defendant, INTERNATIONAL PROFIT ASSOCIATES, INC. as
follows:
a. That a finding be entered that Defendant violated Title VII by retaliating against Plaintiff;
b. That Plaintiff be awarded the maximum monetary damages available; c. That Plaintiff be awarded all wages, benefits and other compensation due
to her being wrongfully fired by the IPA; d. That Plaintiff be awarded punitive damages; e. That Plaintiff be awarded reasonable attorney's fees and costs; and f. That Plaintiff be awarded such other relief as this court deems proper.
COUNT III
(State Claim-Intentional Infliction of Emotional Distress)
19. Plaintiffadopts and realleges the allegations ofparagraphs 1- 18 as though fully set
forth herein.
20. The management and supervisors at IPA, including, but not limited to Gordon
Gurney, Joe Woods, Dan Druggan, Tyler Burgess, David Soskin and Tony Jones, acted as the alter
ego ofIPA.
21 IPA' s conduct was extreme and outrageous.
22. IPA knew that there was a high probability that its' conduct would cause plaintiff
severe emotional distress, and acted in reckless disregard as to the effect ofits' conduct on plaintiff.
23. The IPA'S conduct did in fact cause Plaintiff severe emotional distress.
WHEREFORE, Plaintiff, RHONDA PORTER, prays that this court enter jUdgement on
Count III in her favor and against Defendant, INTERNATIONAL PROFIT ASSOCIATES, INC. as
follows:
a) That a finding be entered that the IPA injured Plaintiff by intentional infliction of emotional distress;
b) That Plaintiff be awarded all wages, benefits, and other compensation lost due to the IPA' S unlawful actions;
c) That Ph~intiffbe awarded the maximum monetary damages available;

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 6 of 9 d) That "'intiff be awarded punitive damages so y~ IPA does not act in a similar matter in the f u t u r e ; ' e) That Plaintiffbe awarded reasonable attorneys fees and costs; and f) That Plaintiff be awarded such other relief as this court deems just and proper. Respectfully submitted, RHOND.:::A..P . ~~
ROSS J. PETERS The Law Offices of Ross J. Peters & Associates, Ltd. 33 North County Street - Suite 402 Waukegan, Illinois 60085 Telephone: (847) 625-1854 Facsimile: (847) 625-0282 Attorney Number: 03126326
6

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 7 of 9
SEE CASE FILE FOR
EXHIBITS

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 8 of 9

JS 44 (Rev, 12/96)

(J) ,...--"'.CIVIL COVER SHEET

The JS-44 civil cover sheet and the information cOII~ned herein neither replace nor supplement the filing at 1_ ..drvice of pleadings or other papers as recp.Urec:

by law, except as provided by local rules of court, This form, approved by the Judicial Conference of the Untted States in September 1974, is required forb ...

IJUGKUeD of the Cieri< of Court for the purpose of initiating th~~ocket, sheet. ,(SEE INSTRUCTIONS ON THE REVERSE OF THE FORM,}

I. (a) PLAINTIFFS

DEFENDANTS

RHONDA PORTER

INTERNATIONAL-PROFIT ASSOCIATES,. INC.

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF

COOK

(EXCEPT IN U.S, PLAINTIFF CASES)

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT

COOK

(IN U.S, PLAINTIFF CASES ONLy) ~ NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
TRACT OF LAND INVOLVED,

(e) ATTORNEYS (FIRM NAME, ADDRESS. AND TELEPHONE NUMBER)
Ross J. Peters T&hAessLoacW~a,Otefsf,jceLs tdo.f Ross J. W33auNke. Canoun1ty1. st6o 08- 5 Su'

Peters

ATIORNEYS (IF KNOWVN":
I'" I" J

II. BASIS OF JURISDICTION

(PLACE AN "X" IN ONE BOX ONLY)

o 1 u.s. Government
Plaintiff
o 2 U.S, Govemment Defendant

yo Federal Question (U,S, Govemment Not a Party)
04 Diverstty (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES(p1AcEAN'~ONE!!.<lx"ORPlA""1Ff

(ForDlverstty Cases OnllYV~l.itlC'-'!D1E"F-R' ATE Ju;j,'_.e,F;'~~c~o~fN'1l0.>.QA]N>1T]F lIEF

Citizen of This State

0 , 0 1 Incorporated 0; principal P~ l-Q 4 0 4

Of Business;l,~~Thisl~te "}

Citizen of Another State 0 2 02 Incorporated 'and Pli6(ffpal ~"b 5 CJ 5

of Business In An01l'lsr Slate ~

Citizen or Subject of a 0 3 0 3 Foreign Nation

CJ

Foreign Country

=t:, 6 D.

IV. ORIGIN
)t't Original Proceeding

0 2 Removed from State Court

(PLACE AN 'X" IN ONE BOX ONLy)

0 3 Remanded from o 4 Reinstated or

Appellate Court

Reopened

Transferred from o 5 another district
(specify)

08 Multidistrict Utigation

Appeal to DSicI
JudQefrom o 1 Magistrate
Judgment

V. NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLy)

CONTRACT
o 110 Insurance
0120 Marine
o 130 Miller Act o 140 Negotiable Instrument o 150 Recovery 01 OVerpaymenT
& Enforcement Of JudgmenT
o 151 Medicare Act o 152 Recovet of Delaulted
StudenT cans {Exci. Veterans}
o 153 Recovery of OVerpayment of Veteralfs Benefits
o 160 stockholde/S'Suits o0190 OIherContract
195 Contract Product liability
REAL PROPERTY
0210 Land Condemnation
o 220 Foreclosure o 230 Rent Lease & Ejectment o 240 Torts to Land o0245 Tort Product Liability
280 All Other Real Property

TORTS

FORFEITURE/PENALTY

PERSONAL INJURY
o 310 Airplane o 315 Airplane Product
Liability
o 320 Assault. Libel & Slander
o 330 Federal Employers' Liability
o0340 Marine 345 Marine Product Liability
o 350 Motor Vehicle o 355 Motor Vehicle
Product Liability
o 360 Other Personal Injury

PERSONAL INJURY
o 362 Personal InJury Mad. Malpractlce
o 36S ~~~I~I~~I'j;y-
o 368 Asbestos Personal Injury Product Liability
PERSONAL PROPERTY
o 370 Other Fraud o 371 Truth In Lending o 380 Other Personal
Property Damage
o 385 Propeny Damage Product liability

CIVIL RIGHTS
o 441 Voting
~442 Employment
o 443 Housing' Accommodations
o0444 Welfare 440 Other Civil Rights

PRISONER PETITIONS

o 610

o o

530 535

o0 5 4 0 550

0556

Motion to Vacate Sentence Habeaa Corpua;
General Death Penalty Mandamus & Other OvH Rights
Prison Condition

o 810 Agriculture
o 620 Other Food & Drug o 625 Drug Related Seizure
of Property 21 USC 881
o 630 Liquor Laws o 640 R.R. & Truck o 650 Airline Regs o 660 Occupational
Safety/Health 0690 Other
LABOR
o 710 Fair Labor Standards
Acl
o 720 Labor/Mgmt. Relations
o 730 Labor/Mgmt. Reporting & Disclosure Act
o 740 Railway Labor Act
o 790 Other Labor Lltlgallon
o 791 Empi. Ret. Inc Security Act

BANKRUPTCY
o 422 Appeal 28 USC 158 o 423 Withdrawal
28 USC t57
PROPERTY RIGHTS
o 820 Copyrights
0830 Patent
o 840 Trademark
SOCIAL SECURITY
o 861 HIA {1395ff) o 862 Black Lung (923) o 863 DIWC/OIWW (405(g)) o 864 SSID Title XVI o 865 RSI (405{g))
FEDERAL TAX SUITS
o 870 Taxes (U.S. Plaintiff or Defendant)
o 871 IRS - Third Party 26 USC 7609

OTHER STATUTES
o 400 State Reapportionment o 410 Antitrust o 430 Banks and Banking o 450 Commerce/lCC Rates/etc. o 460 DeportatiOn o 470 Racketeer Influenced and-
Corrupt Organizations
o 810 SelecUve SelVlce o 850 Securities/Commodities!
Exchange
o 875 Customer Challenge 12 USC 3410
o 891 AgriculTUral Acts o 892 EconomiC Stabilization Act o 893 Environmental Matters o 894 Energy Allocation Act o 895 Freedom of
Information Act
o 900 Appeal of Fee Determination Under Equal Access to Justice
o 950 Constitutionality of State Statutes
o 890 Other Statutory Actions

VI. CAUSE OF ACTION

(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FlUNG AND WRITE BRIEF STATEMENT OF CAUSE. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DJVERSITY.)
c "" \ ~"'~).-..!..,J
,...i_'S:_c. ~

VII. REQUESTED IN
COMPLAINT

CHECK IF THIS IS A CLASS ACTION o UNDER F,R.C,P' 23

DEMAND $

CHECK YES only ~ demanded in complaint

JURY DEMAND: ~

0 NO

VIII. This case

~is not a refiling of a previously dismissed action.

D is a refiling of case number

, previously dismissed by Judge _ _ _ _ _ __

DATE

Case 1:02-cv-02790 Document 1 Filed 04/18/2002 Page 9 of 9

DOCKETED

UNITED STATESOISTRICTCOURT

"C ~~~, l?~,,,z,oo.t '.

NORTHERN DISTRICT OF ILLINOIS < ->:- ..

In the Marter 01

RHONDA PORTER, P L A I,yNo, T I F F , _~:.':';.l~ ,:~i_':n ,~,'_~\'!!l'._:-,"'dl;'.-;<!'~) ,'''~. ",,,- ,.. , 1<' P"s ' .. ,

. INTER;N-,.,-A, T-IO"NAL,-

,
:;'

P

R

OFIT "-',,;,~;

ASSOCIATES,

INC"

DEFENDANT.

(Q)2C Case Number:

~r~

~(Q)

F°f}1JDGE APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S)

g~tG>N

RHONDA PORTER

h',P,sJC.TRi\TE JU

Ross J. Suite 402
60085
I I

(C)

(0)

" '" -,

PLEASE COMPLETE IN AI..I..UI'1I.1't1;~}:litifi}

.. ,~.,.,." ,,..,.,,.,...,, eN ,,"E'JE""SE.

 </s> Case 1:01-cv-04428 Document 1 Filed 06/12/2001 Page 1 of 7
v

IN THE UNITED STATES DISTRICT COURT

FIL.EO·E04

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

01 JUN i 2 Pi! 12: 2 I

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

c\._CHK U.S. DIS! RICT COURT

)

CIVIL ACTION NO.

Plaintiff,

) )

Ole

'4428

v.

)

)

INTERNATIONAL PROFIT ASSOCIATES, )

INC.,

)

JUDGE CASTILLO

)

and

)

)

MAGISTRATE JUDGE LEVIN

ARNOLD & SONS PLUMBING, INC.

)

COMPLAINT

)

)

JURY TRIAL DEMAND

Defendants.

)

)

)

1,:fJ NATURE OF THE ACTION

f}v§',Z,!'?lqljt~:"

~>/!" if

~~~,;;a?rf)~ed, This is an action under Title VII ofthe Civil Rights Act of

42 U.S.c. §

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

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

Lynn Zachman ("Zachman''), an employee of Arnold & Sons Plumbing, Inc. ("A&S") who was

adversely affected by such practices. Plaintiff, the U.S. Equal Employment Opportunity

Commission (the "Commission''), contends Defendant International Profit Association, Inc.

("IPA") discriminated against Zachman because of her sex, by subjecting her to sexual

harassment on the premises of A&S, and failing to take prompt remedial action intended to

eliminate the harassment after the Defendant became aware of the illegal behavior, thereby

interfering with her business relationship with A&S, in violation of Title VII. The Commission

Case 1:01-cv-04428 Document 1 Filed 06/12/2001 Page 2 of 7
terminating her employment in retaliation for her complaint of sexual harassment, in violation of Title VII.
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 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991,42 U.S.C. §1981a. 2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Illinois, Eastern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(I) and (3). 4. At all relevant times, Defendant IPA has continuously been and is now doing business in the State of Illinois and the city of Buffalo Grove and has continuously had at least fifteen (15) employees. At all relevant times, Defendant A&S has continuously been and is now doing business in the state of Illinois and the city of Peoria and has continuously had at least fifteen (15) employees. 5. At all relevant times, Defendants have continuously been employers engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.c. § 2000e-(b), (g) and (h).
2

Case 1:01-cv-04428 Document 1 Filed 06/12/2001 Page 3 of 7
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Zachman filed charges with the Commission alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least April 1999, Defendant IPA has engaged in unlawful employment practices in violation of Section 703(a)(I) of Title VII, 42 U.S.C. § 2000e-2(a)(I). These practices include, but are not limited to, sUbjecting Zachman to sexual harassment on the premises of A&S, and failing to take prompt remedial action intended to eliminate the harassment after the Defendant became aware ofthe illegal behavior, thereby interfering with her business relationship with A&S. 8. Since at least April 1999, Defendant A&S has engaged in unlawful employment practices in violation of Section 703(a)(I) of Title VII, 42 U.S.C. § 2000e-2(a)(I). These practices include, but are not limited to, retaliating against Zachman by terminating her employment after she complained of the sexual harassment. 9. The effect of the practices complained of in paragraphs seven (7) and eight (8) above has been to deprive Zachman of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex. 10. The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are intentional. 11. The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are done with malice or with reckless indifference to the federally protected rights of Zachman.
3

Case 1:01-cv-04428 Document 1 Filed 06/12/2001 Page 4 of 7
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of sex; B. Order Defendants to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of their past and present unlawful employment practices; C. Order Defendants to make whole Zachman by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above; D. Order Defendants to make whole Zachman by providing compensation for past and future non-pecuniary losses, including emotional pain, suffering, inconvenience, loss of enjoyment oflife and humiliation; E. Order Defendants to pay Zachman punitive damages for its malicious andlor reckless conduct described, in amounts to be determined at trial; F. Order Defendants and their successors to provide training to their officers, managers and employees regarding sexual harassment in the workplace; G. Grant such further relief as the Court deems necessary and proper in the public interest; and H. Award the Commission its costs in this action.
JURy TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
4

Case 1:01-cv-04428 Document 1 Filed 06/12/2001 Page 5 of 7
Respectfully submitted, C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
~~.~o~
Trial Attorney
~cJ,k~
Diane 1. Smason Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 500 West Madison Street, Suite 2800 Chicago, Illinois 60661 (312) 353-7546
5

Case 1:01-cv-04428 D<o, ',c' umI' ent 1 Filed 06/12/2001 Page 6 of 7

http://www.ilnd.uscourts.gov/_vtLbin/shtml.dlVPUBLIC/Fonnslcvcover.htm

u

U

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

~fI.!:f' liN», '

Civil Cover Sheet

.JUN 1 :1 2001

This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service ofpleadings or other papers as required by law. This form is authorized for use only in the N0l1hem District of Illinois.

Plaintiff(s): EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Defendant(s): INTERNATIONAL PROFIT ASSOCIATES, INC. & ARNOLD & SONS PLUMBING, INC.

County of Residence:

County of Residence:

Plaintiffs Atty:

Jeanne Szromba Equal Employment Opportunity Commission 500 West Madison, Suite 2800 Chicago, IL 60661 312-353-7546

Defendant's Atty:

Stephen M. Morris, Esq. Hinshaw & Culbertson 456 Fulton Street, Suite 298 Peoria, IL 61602 Attorney for Arnold & Sons Plumbing, Inc.

II. Basis of Jurisdiction:

1 U.S. Gov't Plaintiff

III. Citizenship of Principle Parties (Diversity Cases Only)
Plaintiff:- NIA Defendant:- N/A

JUDGE CASTILLO
; ,-
MAGISTRAT12 lUbGS LEVIN

IV. Origin:

1. Original Proceeding

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V. Nature of Suit:

442 Employment

VI.Cause of Action:

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C § 2000 et seq., and Title I ofthe Civil Rights Act of 1991,42 U.S.C. § 1981 a.

(Related Case EEOC v. International Profit Associates, Inc.)

VII. Requested in Complaint

Class Action:

Dollar Demand:

Jury Demand: Yes

VIII. This case Is NOT a refiling of a previously dismissed case. (If yes case number _ by Judge---->

Signature: Date:

(/2---
1_ T..... _(\l 1 (;..""

- - - - - -Ca-se-1:-01--cv--0-442-8- -Do-cu-me-nt-1 - -File-d-06-/12-/2-001- -P-ag-e 7-o-f 7- - - - - - - 1

In the Matter of

cobth U'NiTED STATES DISTRICT
NORTHERN DISTRICT OF ILLINOIS
Eastern Division

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

y.

ARNOLD & SONS PLUMBING, INC. &
INl'ERNATIONAL PROFrr ASSOCIATES, INC.

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

JUDGE CASTILLO

MAGfSTRATE JUDGE LEvrN

.-..

(Al

(B)

NAMETJ
Jeanne B. Szromba

{)

FIRM
Equal Employment Opportunity Commission

STREET ADDRESS
500 West Madison Suite 2800

CITY/$TATEIZIP
Chicago, IL 60661

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDC No. 06207846

MEMBER OF TRIAL BAR?

0 YES

TRIAL ATTORNEY?

0 YES

0 NO
0 NO

_/

SII :~ fA~~~ /IJi....... f,~, y" j /\

7
t\.~.cReMlual EmVp,\lo...yment Opportunity Commissij n

STREET ADDRESS
500 West Madison, Suite 2800

CITY/STATE/ZIP
Chicago, IL 60661

TELEPHONE NUMBER
("312) 886-9124

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDC No. 06210804

MEMBER OF TRIAL BAR? TRIAL ATIORNEY? DESIGNATED AS LOCAL COUNSEL?

YES rI.~;..lJ
0 YES
0 YES

D NO
0 NO
NO [ J

NAME
Diane I. Smason

FIRM
Equal Employment Opportunity Commission

STREET ADDRESS
500 West Madison, Suite 2800

CITY/STATE/ZIP

Chicago, IL 60661

c

~,

S?

0....

c
....,.~
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IDENTIFICAliON NUMBER (SEE ITEM 4 ON REVERSE)

ARDC No. 06226130
MEMBER OF TRIAL BAR?

Y....r'>~L:.:.-Ir_~ N..I~ :>.."J_J

TRIAL ATIORNEY?

~ESIGNATED AS LOCAL co ~EL/

YES L_.J NO L,.J

)

NAM

I / /

v V ............

Ji hnZr'". Hendrickson

E' ual Employment Opportunity Commission

S1 EET ADDRESS
5tlO West Madison, Suite 2800

ITY/STATE/ZIP
Chica9:o IL 60661
TELEPHONE NUMBER
In 1?) iSi-R'i'il

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDC No. 01187589
MEMBER OF TRIAL BAR?
TRIAL ATIORNEY?

YES I. ~ :
YES Lv:J

L. NO

J

NO L_J

DESIGNATED AS LOCAL COUNSEL?

I J YES ,.~ NO L~"MJ
\ /0

 </s> Case 1:02-cv-04281 Document 1 Filed 06/17/2002 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JUDGE ANDERSEN

PHYLLIS LOPEZ,

)

MAGlsr!1ATE JUDGE

)

GERALDINE SOAT BROWN

Plaintiff,

)

Civil Action No.

)

vs.

~02C 4281

INTERNATIONAL PROFIT ASSOCIATES, INC. )

)

Defendant.

)

o
'"

COMPLAINT

Plaintiff, PHYLLIS LOPEZ, states as follows:

Jurisdiction and Venue

1. This is an action for relief to redress the deprivation of Plaintiffs rights secured by

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

2. This Court has jurisdiction of this action under 28 U.S.C. § 2000e-5(f)(3).

3. Venueisproperpursuantt028U.S.C. § 1391 (a).

Parties

4. Plaintiff, PHYLLIS LOPEZ is a female citizen of the United States and Illinois.

At all times relevant herein, Plaintiff has resided in the district of this Court. Plaintiff was an

employee of the Defendant INTERNATIONAL PROFIT ASSOCIATES, INC. ("IPA") from on

or about August 16,2001 until on or about September 25, 2001, when she was constructively

discharged.

5. Defendant IPA is an Illinois business entity. Defendant is and was at all relevant

times herein, an "employer" within the meaning of Title VII, 42 U.S.C. § 2000e(b)..

Case 1:02-cv-04281 Document 1

Filed 06/17/2002 Page 2 of 8
1\

Administrative Procedure
6. On or about March 11,2002, and within 300 days of the last act of discrimination,
Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity
Commission ("EEOC"), a copy of which is attached as Exhibit "A" to this Complaint.
7. On or about March 28, 2002, a "Notice of Right to Sue" was issued from the
District Office of the EEOC for the charge of discrimination (a copy of which is attached to this
Complaint as Exhibit "B"), entitling Plaintiff to institute a civil action in the appropriate Federal
District Court within 90 days ofthe date of receipt ofthe notice. The notice was received by
Plaintiff on April I, 2002.
8. Plaintiffs last position with IPA was as a file clerk/secretary. 9. At all relevant times, plaintiff performed her employment duties in a satisfactory
manner.
10. Shortly after she began working at IPA, and continuing throughout her
employment with IPA, plaintiff was sexually harassed and sexually discriminated against by
management, supervisors and employees ofIPA. This unlawful discrimination and harassment
included, but was not limited to the following:
a. Being approached by John Greco, Gordon Gurney and Joe Woods, supervisors at IPA, and being told by them that she must have sex with Dan Druggan, the Director of Sales for IPA. She was told that she was doing well at IPA, and that if she wanted to continue to do well, she would do what she was told. Further, money was offered to her if she had sex with Dan Druggan, and ajob promotion was promised. Plaintiff was also told that if she did not "give in" her job would be on the line. Also, when the men approached her, they would say disgusting things of a sexual nature, such as "go suck Druggan's dick.";
b. After the men listed above approached plaintiff and made their demands, and the demands were refused as they always were, they would then yell at plaintiff and swear at her for not giving in to the demands by saying such
2

Case 1:02-cv-04281 Document 1 Filed 06/17/2002 Page 3 of 8
things as "what the fuck is wrong with you...?;
c. Mr. Woods grabbing plaintiff after making the demands listed in subsection a;
d. Dan Druggan, Director of Sales for IPA, directly approaching her and demanding sex; and
e. Being approached by a co-worker at the request of management and/or supervisors of IPA, and being asked if she would take money in exchange for not telling anyone about the events listed in sub-sections a-d.
11. The acts alleged above were directed to plaintiff because she is female, and the
acts created a hostile work environment. 12. As a result of the hostile work environment, it was impossible for plaintiff to
continue to work at IPA, and she left IPA, being constructively discharged on or about September
25,2001. 13. IPA supervisory and management level personnel had knowledge of each and
every act alleged above, and did nothing to remedy the situation and as a result, the acts of sexual harassment and sexual discrimination continued throughout plaintiffs employment with IPA.
Due to defendant's discriminatory behavior, plaintiff has suffered monetary damage and
emotional pain and suffering.
WHEREFORE, Plaintiff, PHYLLIS LOPEZ, prays that this court enter judgement in her
favor and against Defendant, INTERNATIONAL PROFIT ASSOCIATES, INC. as follows:
a. That a finding be entered that Defendant violated Title VII by sexually discriminating against Plaintiff;
b. That Plaintiff be awarded the maximum monetary damages available; c. That Plaintiff be awarded all wages, benefits and other compensation due
to her being constructively discharged by IPA; d. That Plaintiff be awarded punitive damages; e. That Plaintiff be awarded reasonable attorney's fees and costs; and f. That Plaintiff be awarded such other relief as this court deems proper.
3

Case 1:02-cv-04281 Document 1 Filed 06/17/2002 Page 4 of 8
Respectfully submitted, PHYLLIS LOPE By;
~ne
ROSS J. PETERS The Law Offices of Ross J. Peters & Associates, Ltd. 33 North County Street - Suite 402 Waukegan, Illinois 60085 Telephone: (847) 625-1854 Facsimile: (847) 625-0282 Attorney Number: 03126326
4

Case 1:02-cv-04281 Document 1 Filed 06/17/2002 Page 5 of 8

._--

'.e Tb£S for. 1s affected
cotlloletln'c this for".

by

CHARGE;-:::; DISCRIMINATION

the Pr1yacy A~. 01 187.:

pr£v&cy Act Stat••ent

I1<GENCY

/'"'.1 b.tor~ •.£J.

fEPA
J;eoc

CHARGE NUIIBER
710A20:2/ }7

;E;E:;OC Q~I~

SIC" or local A••I1O)\ ifany

and EEOC

HA"E (JntJlt.et'ltr.~ Ns.~ Jlr$.)

HOllE TELEPHONE f.lnelutle AI"t. COdt}

MS. PHYLLIS LOPEZ
STREET ADDRESS
7439 N. WINCHESTER ST.

CITY I STATE AND ZIP COOE
CHICAGO. IL. 60651

I~;EI ;~ ;I?~

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP. COMMITTEE

I STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRlloIINATED AGAINST IoIE ar_1V! CbUJ 010< u •• ""Jo,,:) ,

NA"E

NUMBER OF UPLOYEES. "EIIBERS rELEPHONE aD.Jude A",. COde)

INTERNATIONL PROFIT ASSOCTll.'I'RC::

~n1

STREET AODRESS

CITY, STATE AND ZIP CODE

I 800-531-9585 COUNTY

1250 BARCLAY BLVD.

BUFFALO

n. e;nnRa

097

H"'&lE STnEET ADDRESS

CITY, STATE AND ZIP COOE

TELEPHONE NUII8ER (JlJtJutle AI"t. Code)

,--. . ........ ....~ .

I.. ,._.... . " , COUNTY

CAUSE Of. OlSCRlIIINATiONiiASED ON (Cbeek .ppropr~.et bor(C4))

.

.- ·OATE ·DISCRIIIINATIONT.Q.OK PLACE

o 5 DRACE

COLOR

o RETALIATION

DACE

.. .

....

. - , . ,

· 0 SEX

RelIGION

0 NATIONAL OR_IGI.~ . .

o DISABILITY 0 OTHER (~~U.r)

. ...

THE PARTICULARS ARE (Jr.d~/e/on.J 6p.tt 14 ~d~d• • ee.ch exer. 6he~'($)):

EA=EST

LATEST

08j1 6 101

09/25/01

0 . CONU II.U. ING,.AClI..O.H.

I.

I started working at IPA on August 16, 200I.

II. Almost immediately after I started working, supervisors, Joe Wood, John Greco and Gordon

Gurnee approached me on behalf of President Dan Druggan and told meto have sex with him.

This happened to me constantly while I worked at IPA. Money was offered to me if 1 had sex·

with Mr. Druggan, and ajob promotion was promised.

III. Each time I was approached, I told the three (3) individuals that their appioacheswere

unwelcome. On one occasion, Mr. Wood actually grabbed m~ right ann. All of themen would

yell at me and swear at me for not giving in.

..

IV. When the men approached me they said disgusting things of a sexual nature...

V. I was told that ifI did not "give in" my job would be on the line.

VI. Although I complained to the appropriate supervisory and management personnel, nothinR was.

done. In fact, the Human Relations Department tried to cover up what was going on. I was even

offered money by the Human Relations Department. The owner of the company, a Mr. Burgess

wouldn't even see me.

..

VII. lt should be noted that Dan Druggan himself also directly approached me for sex. . .

VIII. . I was also approached by a co-worker and askedifI would uike money in·exchange for not

telling anyone about what had transpired.

IX. I wish to note that what happened at IPA has had a terrible effect on my life.

X.

-I I believe that I
in violation of

have Title

been discriminated against because VII of the 1964 Civil Rights Act as

of my sex Amended.

and that
,1, .... ,

this
-

d~...i.s: ,.cri.'m..'" i.n. ation

is

•

,
M~P I I 2002

I
I
I

., r:J I want this Charge flled with Doth the EEOC ana·the State 01 NOTARY. (When Mcnurv for State and local ReqU1reMnt~ ;,.

local AGency, 11 anV. 1 w111 .dv!s. the agenc1es 11 I cnange my

address or telephone nUNOer and cooperate fully with them in the
I nr-oenUnn 01 MV charne 1n accordance with their Drocedures.

I swear or a1111""11 that I have read tl!.e ·aA9·ve cnarge .and t.nat
lt 1s true to t-he best 01 .y knowledge, ~n1o~tlon and·cellef •

J declare under penalty of perjury that the foregOIng 1$ true and correct.
Exhibit "A"

~::IBED ~~RE SIGN~~ AND' SWORN

0;)..;;)-6 02
LIE THIS DATE

(O.ay, month, and yur )

.....-

\at~

CharOl nQ Part y (~:t:nl!{lJrt:"1

Case 1:02-cv-04281 Document 1 Filed 06/17/2002 Page 6 of 8

EQUA;: _MPLOYMENT OPPORTUNITY COMM 'ION
NOTICE OF RIGHT TO SUE

APR J : 2u\J2

To: Phyllis Lopez

(Issued on request)

\I 1\. 7t...:JU U t...:J1

From: Equal Employment O-p-p-o--rt-u-n-i-t-y---------

c/o Ross J. Peters, Esq.

Commission

33 North County Street, Suite 402

500 West Madison Street

Waukegan, IL 60085

Suite 2800

Chicago, Illinois 60661

Certified No.: 7099 3400 0006 7301 6124

DOn behalf of a person aggrieved whose identity is confidential 129 C.F.R. 1601.7Ia))

Charge Number

EEOC Representative

Telephone Number

210A202117

Andrew Daley, Investigator

(31 2) 886-7495

(See the additional information attached to this form.)

TO THE PERSON AGGRIEVED: This is your NOTICE OF RIGHT TO SUE. It is issued at your request. If you intend to sue the respondent(s) named in you charge, YOU MUST DO SO WITHIN NINETY (90) DAYS OF YOUR RECEIPT OF THIS NOTICE: OTHERWISE YOUR RIGHT TO SUE IS LOST.

More than 180 days have expired since the filing of this charge.

X

less than 180 days have expired since the filing of this charge, but I have determined -that the commission will be unable to

complete its process within 180 days from the filing of-the charge. -~.

-

X

With the issuance of this NOTICE OF RIGHT TO SUE. the Commission is terminating its process with respect to this charge.

It has been determined that the Commission will continue to investigate your charge.

ADEA: While Title VII and the ADA require EEOC to issue this notice of right to sue before you can bring a lawsuit you may sue - - - - - - under the Age Discrimination in Employment Act (ADEA) any time 60 days after your charge was filed until 90 days after you
received notice that EeOC has completed action on your charge.
Because EEOC is closing your case, your lawsuit under the ADEA must be brought within 90 days of your receipt of this notice. Otherwise. your right to sue is lost.
EEOC is continuing its investigation. You will be notified when we have completed action and, if our notice will include notice of right to sue under the ADEA.
EPA: While Title VII and the ADA require EEOC to issue this Notice of Right to Sue before ·you can bring a lawsuit you already have the right to sue under the Equal Pay Act (EPA). (You are not required to complain to any enforcement agency before bringing and EPA suit in court). EPA suits must be brought within 2 ye~rs (3 years for willful violations) of the alleged EPA underpayment.
On Behalf of the Commission

Date

Enclosures Information Sheet Copy of Charge
cc: Respondent(s)

Exhibit "B" International Profit Associates

Case 1:02-cv-04281 Document 1 Filed 06/17/2002 Page 7 of 8

JS 44 IRev. 12/96)

~
(4fJ CIVIL COVER SHEET

The JS-44 civil cover sheet a

.

. n contained herein neither replace nor supplement the filing and service of pleadings or other papers as require

by law. except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974. is required for 1he us

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

0 2 C 4 2 8 I. (a) PLAINTIFFS PHYLLIS LOPEZ

JUDGE ANDERSEN DEFENDANTS
INTERNATIONAL PROFIT ASSOCIJI. TES, IN::

(b) COUNTY OF RESIDENCE OF FIRST USTED PLAINTIFF

COOK

(EXCEPT IN U.S. PLAINTIFF CASES)

MAGISTRATE JUDGE

c "

, or.:

BROWN

e t e r R SSP (e)

-' ./
ATIORNEYS (FIRM NAME. ADDRESS. AND TELEPHONE NUMBER)

0

The Law Offices of Ross J. Peters & Assoc

33 North County st. - Suite 402

Waukegan, II. 60085 / 847-625-1854

'U) COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT . _

<~-;-:-:- n:

fr\ NOTE: ITNRLAACNTDOCFOD~~\(I~NN~QNlU~~...S:¥.I~lP.O?LN~A.~IPNC,TAhISF.EFSC, AUSSEE-~~~N~L~YL>)OC:A.~.N O.!~" HE

It"'"

.,,/,

/'-' ;::::::>

/.

ATTORNEYS (IF KNOWN)

II. BASIS OF JURISDICTION

(PLACE AN "X" IN ONE BOX ONLY)

o 1 U.S. Government
Plaintiff

£ 'Federal Question (U.S. Govemment Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN "X' IN ONE BOX FOR PLAlNTIF

(For Diversity Cases Only)

AND ONE BOX FOR DEFENDANT)

PTF DEF

PTF lIEF

Citizen of This State

01 01 Incorporated or Principal Place 04 04

of Business In This State

o 2 U.S. Government
Defendant

04 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State 0 2 02
Citizen or Subject of a 0 3 0 3 Foreign Country

Incorporated and Principal Place 0 5 0 5 of Business In Another State

Foreign Nation

06 06

IV. ORIGIN

(PLACE AN 'X" IN ONE BOX ONLy)

~gjnal

o 2 Removed from o 3 Remanded from o 4 Reinstated or

Transferred from
o 5 another district

Proceeding

State Court

Appellate Court

Reopened

(specify)

.V NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLy)

06 Multidistrict Litigation

Appeal to DisIric Jud~e f"Jm
o 7 Magistrate
Judgment

CONTRACT
o 110 Insurance oo 120 Marine
130 Miller Act
o 140 Negotiable Instrument o lSO Recovery of Overr.;:yment
& Enforcement 0 Judgment
o 151 Medicare Act o 152 Recovery 01 Defaulted
Studenlloans (Excl. Veterans)
o 153 Recovery of Overpayment of Veteran·s Benellts 0160 Stockhoiders'Suits
o 190 Other Contract
o 195 Contract Product liability
REAL PROPERTY
o 210 Land Condemnation o 220 Foreclosure
o 230 Rent Lease & Ejectment o 240 Torts to Land o 245 Tort Product liability o 290 All Other Real Property

TORTS

FORFEITURE/PENALTY

PERSONAL INJURY
o 310 Airplane
o 315 Airplane Product Liability
o 320 Assault, Libel & Slander
o 330 Federal Employers· Liability
0340 Marine
o 345 Marine Product Liability
o 350 Motor Vehicle o 355 Motor Vehicle
Product Liability
o 360 Other Personal Injury

PERSONAL INJURY
o 362 Personal Injury Med Malpractice
o 365 PersonallnjU~ PrOduct Llabll ty
o 368 Asbestos Personal Injury Product Liability
PERSONAL PROPERTY
o 370 Other Fraud o 371 Truth in Lending o 380 Other Personat
Property Damage
o 385 Property Damage Product liability

CIVIL RIGHTS
0441 Voting $4'42 Employment
o 443 Houslngl Accommodations
o 444 Welfare o 440 Other Civil Rights

PRISONER PETITIONS
o 610 Motion to Vacate Sentence HIlboll. Corpua: 0 53' General 0 53. Death Penalty
0 54' Mandamus & Othef 0 55. Civl Rights 0 555 Prison Condition

o 610 Agriculture
o 620 other Food & Drug o 625 Drug Related Seizure
of Property 21 USC 881
o 630 Liquor Laws o 640 RR & Truck o 650 Airline Regs o 660 Occupational
Safety/Heallh
o 690 Other
LABOR
o 710 Fair Labor Standards Aol
o 720 Labor/Mgmt Relations
o 730 Labor/Mgmt. Reporting & Disclosure Act
o 740 Railway Labor Act
o 790 Other Labor Litigation
o 791 Empl. ReI. Inc. Security Act

BANKRUPTCY
0422 Appeal 28 USC 158
o 423 Withdrawal 28 USC 157
PROPERTY RIGHTS
o 620 Copyrights
0630 Patent
o 840 Trademark
SOCIAL SECURITY
0861 HIA (1395ft)
o 862 Black Lung (923) o 863 DIWC/DIWW (405(g)) o 864 SSID Title XVI o 865 RSI (405(g))
FEDERAL TAX SUITS
o 870 Taxes (U.S Plaintiff or Defendant)
o 871 IRS - Third Party 26 USC 7609

OTHER STATUTES
o 400 State Reapportionment
0410 Antitrust
o 430 Banks and Banking o 4SO Commerce/lCC Rates/etc. o 460 Deportation
o 470 Racketeer Influenced and Corrupt Organlzallons
o 810 Selective Service o 850 Securities/Commodities!
Exchange
o 875 Customer Challenge 12 USC 3410
o 891 Agricultural Acts o 892 Economic Stabilization Act o 893 Environmental Matters o 894 Energy Allocation Act o 895 Freedom of
Information Act
o 900 Appeal of Fee Determination Under Equal Access to JusUol
o 950 Constitutionality of State Statutes
o 890 Other Staluto'Y Actions

VI. CAUSE OF ACTION (CITE THE U.S, CIVIL STATUTE UNDER WHICH YOU ARE FlUNG AND WRllE BRIEF STATEMENT OF CAUSE
DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.)

VII. REQUESTED IN

CHECK IF THIS IS A CLASS ACTION

COMPLAINT

o 1JNDER F.R.C.P. 23

DEMAND $

CHECK YES only ~ demanded in complaint

JURY DEMAND: - ~ lES

0 NO

VIII.

This case

.~not a refiling of a previously dismissed action.

o is a refiling of case number

• previously dismissed by Judge _ _ _ _ _ __

i

Case 1:02-cv-04281 Document 1 Filed 06/17/2002 Page 8 of 8

In the Matter of

UNITED SUfTESDISTRICTCOURT
NORTHERN DISTRICT OF ILLINOIS

JUDGE ANDEf,SEN

PHYLLIS LOPEZ, PLAINTIFF

vs.
INTERNATIONAL PROFIT ASSOCIATES,

1Vi,.\GISTri/\TE JUDGE Gb1!\LDIN[ SOAT BROWN INC.

--- ' l SIG~~

(A) c)(

""""R,o?sS J. P,E...~/S

SlGNATlJRE .....E

(II)
_.'(f)

' r n e Law CJ1fices of Ross J. Peters FIRM

& Associi'lt"" Ltrl

STREET ADORESS

STREET ADORESS

33 North County Street-Ste. 402

(f)(
-',-
0/-
---{ ~~

CITY/STATEJ21P
Waukegan, II.
TELEPHONE NUMBER
847-625-1854
IOENTIFICATION NU"IIER (
03126326
MEMeeR OF TRIAl. BAR?

60085
• ON "~<""S~,
0 Y1:S

NO 0

Crrv/STATE/ZtP

0

~

TELEPHONE NUMBER

:::<

'u~"., ICA, ION NU"SER (SEE fTEM' ON "~,~"s~,

MEMBER OF TRIAL BAR?

0 Y1:S

J1:tA.L AITORNeY?

0 Y1:S

NO 0

i"RALArTORNE;'n

0 fES

CESlGNA TED AS LOCAL COu~eL7

0 YES

0

- Cc-: -<)

-'-I Pr:);

::00' -<"':

~ •

Cf? -",.

0

NOD NOD NOD

(C)
SIGNATURE NA..E FIRM STREET ADORESS CITY/SIATE/ZIP

(0)
SlG. . . TlJRE "","E !=!AM STREET AQORESS CITY/STATE/.IP

TELEPHONE Nu..SER

TELEPHONE NUMSER

IOENTlflCATiON NUMSER (SEE ITEM" ON RE'lERSE)

loeNTIFlCATlON NUMBER (seE !TE."" ON At:vERSeJ

"E..SER OF TRIAl. SAR? mAL ArrORNE'Y?

0 Y1:S 0 Y1:S

NOD I
NOD

..eMIIER OF TRIAL SAR? TRAL ATTORNEY7

0 YES 0 YES

OESiONA TEO AS LOCAL COUNSEL?

0 Y1:S

NOD

DESIGN.-. TEO AS LOCAL COuNSEL?

0 YES

-.
PLEASE COMP LETE IN ACCORDANCE WITH INSTRUCTIONS eN RE'JERSE.

NOD NOD NOD
-----'/...

 </s> Minute Order Fonn (06197)Case 1:02-cv-02790 Document 28 Filed 12/02/2003 Page 1 of 6

.

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

Joan B. Gottschall
01 C 4427(02 C 2790~

Sllllni Judge IfOtber thaD Assigned Jud&e
DATE

121212003

CASE TITLE
MOTION:

a-p;;'rter and EEOC vs. International Profit Associates
[In tbe foUowing box (a) mdicate tbe party fihng tbc motion, c.g., plaJ.R.bff, defendant. 3ed party plamtiff, and (b) state briefly the nature
oCthe motion being presented.]

Defendant's motion to dismiss Rhonda Porter's complaint

DOCKET ENTRY:

(I) o

Filed motion of[ use listing in "Motion" box above.)

(2) o

Brief in support ofmotion due _ _'

(3) o

Answer brief to motion due_ _, Reply to answer brief due_ _.

(4) o

RulinglHearing on _ _ set for _ _ at _ _.

(5) o

Statos hearing[held/continued to) [set for/re-set for) on _ _ set for _ _ at _ _.

(6) o

Pretrial conference[held/continued to) [set for/re-set for) on _ _ set for _ _ at _ _.

(7) o

Trial[set for/re-set for) on _ _ at _ _.

(8) o

[Bencb/Jury trial) [Hearing) held/continued to _ _ at _ _.

(9) o

This case is disntissed [with/without) prejudice and without costs[by/agreemenllpursuant to)
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(I) 0 FRCP41(a)(2),

(IO)a [Other docket entry) For the reasons stated in the attached memorandum opinion and order, defendant International Profit Associates' motion to dismiss plaintiff Rhonda Porter's complaint ([5-1] in case no. 02 C 2790) is denied.

(ll) a

[For further detail see order attached to the original minute order,)

f-f--

No notices required, advised in open court No notices required. Notices mailed by judge's staff.

rJZ:t - - INotified counsel by telepbone. Docketing to mail notices.

Mail AO 450 Conn.

•

'-;I:7_..1-' Copy tojudgel~tejU~

number or notices

pr/~

courtroom
deputy's initials

. . ~ - ~ -,..., j
Date/time rocei"'!'.\' U.;J . U..J I central Clerk's Office

mailing dqKdy iniIiIJI

Case 1:02-cv-02790 Document 28
.

Filed 12/02/2003 Page 2 of 6

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

DOCKETED
DEC 1 J 2003

RHONDA PORTER and EEOC

)

Plaintiffs, )

v.

)

)

INTERNATIONAL PROFIT ASSOCIATES, INc.,

)

)

Defendant. )

Case Nos. 01 C 4427, 02 C 2790 Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Plaintiff Rhonda Porter originally filed a three-count complaint against Defendant

International Profit Associates, Inc. ("IPA"), charging IPA in Counts I and II with sexual harassment
and retaliation under Title VII, 42 U.S.C. § 2000e, et seq. and in Count ill with intentional infliction

of emotional distress ("lIED") under TIlinois state law (No. 02 C 4427). Subsequently, Porter,

through her estate, was granted leave to intervene in a pending class action filed by the EEOC against

IPA (No. 01 C 4427), but not before IPA moved to dismiss Porter's original complaint. As an initial

matter, the court denies as moot IPA's motion to dismiss Counts I and II for violating the "prior

pending action doctrine," as these allegations now form the substance of Porter's intervenor

complaint in the class action. And for the reasons stated below the court denies IPA's motion to

dismiss Count III, Porter's lIED claim, for lack ofjurisdiction.

I. FACTS At all times relevant to her claims, Rhonda Porter was employed by IPA and at the time of

her allegedly unlawful termination, she worked for IPA as a business coordinator. Porter asserts that

she suffered sex discrimination and harassment as well as severe emotional distress caused by the

_""""wm "'."">j6 extreme and offensive conduct of her male supervisors throughout her employment with IPA.

_ill,.ly,

ofbomg"""""ti"""'rep~redly"= by h~,",,""'_,

Case 1:02-cv-02790
.

Document 28

Filed 12/02/2003 Page 3 of 6

offensively and inappropriately on her breasts, buttocks, vagina, and back, called derogatory and
"filthy" names (e.g., "ghetto whore" and "bitch"), and rubbed against in the groin area by a supervisorwho told herhe had a "man size anaconda." She also asserts that certain supervisors broke into phone calls between Porter and her husband and made rude sexual comments, that others told she needed to have sex with the director ofsales to avoid "havingproblems" at work, and still others suggested that she have sex with another woman so that they could watch or 'join in."
Approximately two weeks before IPA terminated Porter, she was propositioned repeatedly by a supervisor to have sex with the director of sales; Porter refused each time. Porter claims that after her last refusal, the propositioning supervisor told her that the director would be upset, that something would happen to Porter's job, and that Porter would be sorry. Around the same time Porter participated in an EEOC investigation of numerous claims of sex discrimination and harassment filed by other female employees ofIPA. Soon after her refusal to have sex with the director ofsales and her participation in the EEOC investigation, Porter claims that she was falsely accused of being drunk at work and was fired. She insists that she performed her job satisfactorily
and that she was terminated for having refused sex with her boss and assisting the EEOC
investigation.
n. DISCUSSION
1PA argues that Porter's TIED claim ought to be dismissed because it arises from the same
set of facts and circumstances as her federal Title VII claims, and is therefore preempted by the
IHRA. Though 1PA does not directly say so, the court interprets its motion as arguing for the dismissal of Porter's claim for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). See Thomas v.
L 'Eggs Prods., Inc., 13 F. Supp. 2d 806,808 (C.D. Ill. 1998) (finding that where llIinois court lacks

2

Case 1:02-cv-02790 Document 28 Filed 12/02/2003 Page 4 of 6
jurisdiction to hear claim, so to does federal court sitting in D1inois). The IHRA states that "[e]xcept as otherwise provided by law, no court of this state shaH have jurisdiction over the subject of an
alleged civil rights violation other than as set forth in this Act." 775 !LCS § 5/8-1 I I(C). The Act then
explains that a "civil rights violation" occurs when an employee is terminated on the basis of ''unlawful discrimination." Id. at § 5/2-102. According to the IHRA, unlawful discrimination includes "discrimination against any individual because of his or her ... sex," id. at §§ 5/l-102(A) & 103(Q), and sexual harassment, which the Act defines as "any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when ... such conduct has the purpose or effect of substantiaHy interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment," id. at § 5/2-101(E). Though the IHRA preempts state law tort claims that are "inextricably linked" to a civil rights violation, Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (TIl. 1997), ifthe complained-ofconduct "would be actionable even aside from its character as a civil rights violation because the IHRA did not 'fumish[] the legal duty that the defendant was alleged to have breached,' the IHRA does not preempt a state law claim seeking recovery for it," Krocka v. City o/Chicago, 203 F.3d 507,516-17 (7th Cir. 2000) (quoting Maksimovic, 687 N.E.2d at 23).
In this case Porter claims that she has suffered severe emotional distress due to the outrageous conduct of various IPA employees, conduct that occurred in the workplace and was mostly sexual in nature. Defendants argue that because the same allegedly inappropriate workplace behavior by IPA employees forms the basis for both Porter's sexual harassment and retaliation
claims under Title vn and her IIED claim under state tort law, the charges are inextricably linked
and she cannot bring her IIED claim independently ofa civil rights action under the IHRA. The court
3

Case 1:02-cv-02790
.

Document 28

Filed 12/02/2003 Page 5 of 6

disagrees. The proper inquiry in cases like this is "whether the tort claim is inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the Act itself." Maksimovic, 687 N.E.2d at 23. The duty not to intentionally and knowingly inflict severe emotional distress upon another derives from common law and exists quite separately from the statutory
vn prohibition against workplace discrimination codified in Title and the lliRA. Arnold v. Jansen
Phannaceutica, Inc., 215 F. Supp. 2d 951,955 (N.D. TIl. 2002). Therefore, the fact that a defendant's extreme and offensive conduct might also constitute sexual harassment understate or local laws does not affect the viability ofplaintiff's tort claim for lIED. Id. And in fact, several recent decisions from this district have held that the lliRA does not preempt lIED claims in cases where, as here, the defendants' underlying conduct included numerous instances of harmful and offensive touching, suggestive sexual comments, repeated requests and propositions for sexual behavior, and crude and demeaning sexual slurs directed at the plaintiff. See, e.g., Arnold, 215 F. Supp. 2d at 955-56; Spahn
v. Int '/ Quality & Productivity Or., 211 F. Supp. 2d 1072, 1075-76 (N.D. m. 2002); Roberts v. Cook
County, 213 F. Supp. 2d 882, 886-87 (N.D, TIl. 2002); Adan v. Solo Cup, Inc., No. 01 C 3966, 2001 WL 951726, at *1-3 (N.D. Ill. Aug. 17,2001); Rapier v. Ford Motor Co., 49 F. Supp. 2d 1078,
1079-80 (N.D. m. 1999).
Under the facts ofthis particular case, the court finds that Porter has asserted sufficient facts to establish a claim for lIED independent ofthe legal duties furnished by the lliRA. Portercomplains ofbeing propositioned repeatedlyfor sex byhersupervisors, touched offensivelyand inappropriately on her breasts, buttocks, vagina, and back, called derogatory and crude names, and rubbed against in the pelvic area by a supervisor who told her he had a "man size anaconda." Since these allegations of clearly offensive conduct could support a claim for lIED separate from the llIRA's prohibition

4

, .

Case 1:02-cv-02790 Document 28 Filed 12/02/2003 Page 6 of 6

against workplace discrimination on the basis of sex, the court concludes that Porter's nED claim is not preempted by the illRA,
Ill. CONCLUSION Defendant IPA's motion to dismiss is denied,
ENTER:

DATED: December 2, 2003

nited States District Judge

5

 </s> • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 1 of 53 PageID #:16840

IN THE UNITED STATES DISTRICT COURT

k~~

FOR THE NORTHERN DISTRICT OF ILLINOIS

~ ~

EASTERN DIVISION

"uoG~hJ~4~1,;r ;{" .'>

~,..,.
V

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

) ) ) ) )

CIVIL ACTIONV.NsO.~.~.s-o0~.t11'ff!c:C1..'Qr~0iffCc't2:~l,b1ot;9/,-/,11(,1.

and

)

)

MARION TOWNSON, PHYLLIS LOPEZ,

)

JUDGE GOTTSCHALL

and RHONDA PORTER

)

)

Plaintiff-Intervenors

)

)

v.

)

MAGISTRATE JUDGE

)

DENLOW

INTERNATIONAL PROFIT

)

ASSOCIATES, INC.,

)

)

Defendant.

)

CONSENT DECREE 1. This Consent Decree (the "Decree") is made and entered into by and between Plaintiff United States Equal Employment Opportunity Commission (hereinafter referred to as the "Commission" or "EEOC"), Plaintiff -Intervenors Marion Townson, Rhonda Porter, and Phyllis Lopez (hereinafter Townson, Porter, and Lopez are referred to collectively as "Intervenors") and Defendant International Profit Associates, Inc. (hereinafter referred to as "IPA"). (EEOC, Intervenors, and IPA are collectively referred to herein as "the Parties"). 2. On June 12, 2001, EEOC initiated this action by filing its Complaint against IPA. EEOC filed a First Amended Complaint on March 1, 2004 and a Second Amended Complaint on November 4, 2004. EEOC alleges that since at least 1991 IPA violated Title VII of the Civil Rights Act of 1964, as amended, including, but not limited to, amendments authorized by the

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 2 of 53 PageID #:16841
Civil Rights Act of 1991, 42 U.S.C. §2000e et seq. ("Title VII"), by engaging in a pattern or practice of sexual harassment and sex-based harassment against a class of female employees of IPA and females who worked on the premises ofiPA.
3. On June 14, 2010, with IPA's consent, the Court issued an order fmding that IPA had engaged in a pattern or practice of tolerating sexual harassment against its female employees from November 25, 1997 to February 14, 2005.
4. In the interest of resolving this matter and as a result of having engaged in comprehensive settlement negotiations, the Parties have agreed that this action should be fmally resolved by entry of this Decree.
NOW, THEREFORE, the Court having carefully examined the terms and provisions of this Consent Decree, and based on the pleadings, record and stipulations of the Parties, it is ORDERED, ADJUDGED AND DECREED THAT:
5. This Court has jurisdiction over the subject matter of this action and over the Parties for purposes of entering and enforcing this Decree and the Guaranty of Payment, attached hereto as Exhibit 3.
6. The terms of this Decree are adequate, fair, reasonable, equitable and just. 7. This Decree conforms with the Federal Rules of Civil Procedure and is not in derogation of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII and will be in the best interests of the Parties, those for whom EEOC seeks relief, and the public. 8. This Decree resolves all claims arising out of Charge Nos. 210984080, 210A00695, 210A203297, 210990213, 210A202117, and 210A201256 and the Complaints filed in this action by EEOC and Intervenors, and constitutes a complete resolution of all claims of
2

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 3 of 53 PageID #:16842
sexual harassment and sex-based harassment, from 1991 to the entry date of this Decree, under Title VII, that were made or could have been made by the Commission against IPA in this action. Upon entry of this Consent Decree, this case (No. 01 cv 4427) and related cases 02 cv 4281 and 02 cv 2790 are fmally resolved within the meaning of the Federal Rules of Civil Procedure with the Court retaining jurisdiction to enforce the terms of this Decree. This Decree does not, however, resolve any charges that may be pending with EEOC other than the charges specifically referred to in this paragraph.
Scope of Consent Decree 9. The duration of this Decree shall be three (3) years from the date of entry of the Decree. During that time, this Court shall retain jurisdiction over this matter and the Parties for purposes of enforcing compliance with the Decree, including issuing such orders as may be required to effectuate its purposes. This Decree shall apply to all IPA employees, including those who work both inside and outside of the Buffalo Grove, Illinois offices.
General Injunctive Provisions 10. Sexual Harassment. IPA and its officers, agents, management (including managers, directors, and supervisory employees), employees, successors and assigns, and all those in active concert or participation with them, or any of them, are hereby enjoined from violating Title VII by discriminating against women on the basis of sex by sexually harassing female employees and/or harassing female employees on account of their sex, and/or creating, facilitating or permitting the existence of an environment that is sexually hostile to female employees. 11. Retaliation. IPA and its officers, agents, management (including managers, directors, and supervisory employees), employees, successors and assigns,·and all those in active
3

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 4 of 53 PageID #:16843
concert or participation with them, or any of them, are hereby enjoined from violating Title VII by engaging in, implementing or permitting any action, policy or practice with the purpose of retaliating against any current or former employee of IPA or any person identified as a witness or potential witness in this case because he or she opposed any practice of sex discrimination, sexual harassment or sex-based harassment made unlawful under Title VII; filed a Charge of Discrimination alleging any such practice; testified or participated in any manner in any investigation (including, without limitation, any internal investigation undertaken by IPA), proceeding, or hearing in conn~ction with this case and/or relating to any claim or complaint of sex discrimination, sexual harassment or sex-based harassment; was identified as a possible witness in this action; asserted any rights under this Decree; or sought and/or received any monetary and/or non-monetary relief in accordance with this Decree.
Monetary Relief 12. IPA shall pay the gross aggregate sum of EIGHT MILLION DOLLARS ($8,000,000.00) (hereinafter referred to as the "Settlement Fund") to be distributed as compensatory damages among all "Eligible Claimants" (as that term is defined in paragraph 20 herein), all in accordance with the provisions of this Decree.
Establishment of Settlement Fund and Payment Administrator 13. Contemporaneously with the entry of this Consent Decree by the Court, IPA shall cause to be established a Settlement Fund with an initial amount of THREE MILLION DOLLARS ($3,000,000.00), to be administered by Settlement Services as Payment Administrator. The Payment Administrator shall have authority to receive monies from IPA, and to distribute those monies to Eligible Claimants (defmed below) and Attorneys (identified in Exhibit 7) as provided by this Decree. IPA shall pay or cause to be paid at the Offices of the
4

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 5 of 53 PageID #:16844
Payment Administrator as subsequent payments to the Settlement Fund the following amounts on the following dates, with notice to EEOC: On the first anniversary of the entry of this Consent Decree.....................$1,500,000.00 On the second anniversary of the entry of this Consent Decree.................$1,500,000.00 On the third anniversary of the entry of this Consent Decree................$ 2,000,000.00
All payments into the Settlement Fund shall be made by electronic transfer of funds to a bank account designated by the Payment Administrator.
14. In the event that IPA shall for any reason whatsoever not pay or cause to be paid any of the payments to the Settlement Fund, or any part thereof, on the date said payment is scheduled to be made, subject to the Dispute Resolution provisions found in Paragraph 53 of this Consent Decree, then the obligation of IPA to pay all amounts then and thereafter due under this
I
Decree shall be automatically accelerated, without further act or deed by any person, and without further notice to or order of the Court, so that the entire aggregate amount then remaining due and payable to the Settlement Fund shall be immediately due and payable to the Settlement Fund. Payment of future amounts, FIVE MILLION, FIVE HUNDRED THOUSAND DOLLARS ($5,500,000.00), to be paid, or caused to be paid, under this Consent Decree by IPA is guaranteed personally by John R. Burgess ("Burgess") as identified in the Guaranty of Future Payments annexed to this Consent Decree as Exhibit 3 and incorporated herein by reference. This Court shall retain jurisdiction under this Decree until all amounts due have been paid or caused to be paid.
15. To secure the payments to the Settlement Fund, EEOC shall have liens againstthe following real properties: 55 Wynstone, Barrington, IL 60010; 6652 Glen Harbor Way, Naples, FL 34119; 23740 Chardon Road, Grayslake, IL 60030. The terms of the liens are provided in the mortgages attached as Exhibits 4-6 hereto and incorporated herein by reference.
16. The obligation ofiPA to pay all amounts then and thereafter due under this
5

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 6 of 53 PageID #:16845

~~<.-.Gee\<. r~~ ~ provide& i..-- ~~rc"''r~h IL{o..hd (hc~ll Decree shalYalso be automatically accelerated, without further act or deed by any person, and

without further notice to or order of the Court, so that the entire aggregate amount then or

thereafter remaining due and payable to the Settlement Fund, shall be immediately due and

payable to the Settlement Fund: (a) in the event that IPA files any proceedings under any federal

.

.

or state insolvency laws or regulations, (b) in the event that John R. Burgess files Of"'ftflS

'

~

Q)·
·

irtvohmta.Rly filed against him any proceedings under any federal or state insolvency laws or

regulations, (c) in the event that John R. Burgess is not in complete compliance with all of the

terms and conditions ofhis personal Guaranty of Payment ofiPA's monetary obligations under

this Decree, or (d) in the event that a majority or controlling interest in IPA or its property is sold

or otherwise transferred whether by any sale of securities or other instruments, any

reorganization or liquidation, any restructuring, assumption or transfer of debt, or any sale of

assets, or by any other means.

17. The Settlement Fund shall be held by the Payment Administrator exclusively for

the benefit of the Eligible Claimants to receive monetary reliefunder this Decree and the

attorneys to receive the attorneys' fees specified below. Upon payment of the Settlement Fund

by IPA to the Payment Administrator, neither IPA nor any trustee, successor, assignee, or

creditor of IPA shall have any right, title, or interest whatsoever in or to the Settlement Fund, any

part of the Settlement Fund, or interest on the Settlement Fund, and none of them shall have any

right or authority to direct or control the Payment Administrator in any way. Any breach by the

Payment Administrator in distributing payments or any other duty shall not be a breach by IPA.

There shall never be any reversion of the Settlement Fund or any part of the Settlement Fund or

any interest on the Settlement Fund to IPA or any trustee, successor, assignee, or creditor ofiPA.

The Settlement Fund shall be managed by the Payment Administrator so that it shall accrue

6

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 7 of 53 PageID #:16846
interest. IPA and EEOC shall timely execute and deliver all such further instruments and documents and take such further acts or deeds, and the Court may enter such further orders, as may be necessary or appropriate in order to enable the Payment Administrator to accept, maintain, manage and distribute the Settlement Fund as contemplated by this Decree.
Since IPA has no responsibility for the distribution of the Settlement Fund, the determination of Eligible Claimants or amount of payments to any Eligible Claimant, neither IPA nor any of the Guarantors shall have any liability for those acts, or payment from the Settlement Fund to any attorney entitled to payment under this Decree.
Distribution of Settlement Fund 18. The Settlement Fund shall be used solely to make payments to (a) women who are Eligible Claimants as that term is defmed in Paragraph 20, below; and (b) the attorneys identified in Exhibit 7. No persons other than Eligible Claimants and the attorneys identified in Exhibit 7 shall receive any payments from the Settlement Fund. 19. Subject only to the approval of the Court, EEOC shall be the sole determiner of eligibility for relief under this Decree and the amount of monetary relief to be received by any Eligible Claimant under this Decree. IPA will not participate in or object to EEOC's determinations. 20. Eligible Claimants are defmed as those individuals whom EEOC--acting in its discretion and based upon the evidence available to it which it deemed sufficient and appropriate--determined, during the course of this litigation, were individuals upon whose behalf EEOC was seeking monetary relief in this case, and whom EEOC identified to IPA as such during the course of this litigation, including Intervenors Townson, Porter, and Lopez. 21. Eligible Claimants do NOT include:
7

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 8 of 53 PageID #:16847
A. Those individuals who advised EEOC that they did not want EEOC to seek any relief on their behalf or did not want to be a 'part of any class upon whose behalf EEOC was seeking relief;
I
B. Those individuals whom EEOC advised were no longer eligible for relief because of their failure to appear for deposition or to otherwise cooperate in the litigation of this case by EEOC; and
C. Those individuals with respect to whom the Court entered any order (whether on defendant's motion for summary judgment or motion to dismiss or otherwise) barring EEOC from seeking monetary relief on their behalf in this case.
D. Notwithstanding C. above, EEOC has determined, based on the factors identified in paragraph 26 below, that Class Member Angela Stipe shall be considered an Eligible Claimant.
22. Acting in its discretion and subject only to fmal approval by the Court, EEOC
shall exclusively determine the eligibility of claimants for relief under this Decree. In making
such determinations, EEOC may consider whatever information or evidence EEOC deems
appropriate, including, but not limited to, information or evidence received by EEOC in its
investigation of the charges of discrimination underlying this action, and/or in connection with
its litigation of this action. EEOC shall file, under seal, a fmal Settlement Distribution List,
attached hereto as Exhibit 7, which shall contain (a) each Eligible Claimant's name; (b) the Final
Gross Settlement Amount for each Eligible Claimant that is stated in the letter referred to in
paragraph 28; (c) the amount of the Initial Payment to be made to that Eligible Claimant ("Initial
Payment Amount"); and (d) the amount of each future anniversary payment to be made to that
Eligible Claimant.
23. The Fund shall pay the following total amounts to Intervenor Townson's current
and prior attorneys (at the following addresses) as attorneys fees and costs, in installments, as,
outlined in Exhibit 7: 8

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 9 of 53 PageID #:16848

$138.000.00 to

Dennis P.W. Johnson, Esq. . Pugh, Jones, Johnson & Quandt, P.C. 180 North LaSalle Street, Suite 3400 Chicago, Illinois 60601

$64,000.00 to

Laurie J. Wasserman, Esq. Law Offices of Laurie J. Wasserman Westmoreland Building 9933 Lawler Avenue, Suite 122 Skokie, Illinois 60077

$18,000.00 to

Edward J. Moran, Esq. Law Offices of Edward J. Moran 330 N. Wabash, Suite 2604 Chicago, Illinois 60611

Within seven (7) calendar days of receipt of a General Release from Townson, the

Payment Administrator shall pay the first installment to each of the Intervenor Townson's

attorneys, as outlined in Exhibit 7. The Payment Administrator shall pay subsequent

installments of the amounts specified in Exhibit 7 to each of the attorneys identified in Paragraph

23 in the same manner provided in Paragraph 29. Simultaneously, the Payment Administrator

shall send to EEOC a copy of each check sent to each of the attorneys identified in Paragraph 23.

24. The Fund shall pay the following amounts to Ross Peters, Esq., counsel for

Plaintiff-Intervenors Porter and Lopez and Class Member Jennifer Gerving (at the following

address) as attorneys fees and costs, in installments, as outlined in Exhibit 7:

$91,000.00 (for Rhonda Porter)

$78,000.00 (for Phyllis Lopez)

$42,667.00 (for Jennifer Gerving) to

Ross J. Peters, Esq. Law Offices of Ross J. Peters, Ltd. 33 North County Street, Suite 402 Waukegan, Illinois 60085

9

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 10 of 53 PageID #:16849

Within seven (7) calendar days of receipt of a Release from Porter, Lopez and Gerving,

the Payment Administrator shall pay the first installment to Peters, as outlined in Exhibit 7. The

Payment Administrator shall pay subsequent installments of the amounts specified in Exhibit 7

to Peters in the same manner provided in Paragraph 29. Simultaneously, the Payment

Administrator shall send to EEOC a copy of each check sent to Peters.

The Fund shall pay the following total amount to Ponticelli & Vito (at the following

address):

$3,500.00 to

Ponticelli & Vito Attention: James Vito, Esq. 1480 Renaissance Drive, Suite 209 Park Ridge, Illinois 60068

Within seven (7) calendar days of receipt of a Release from Class Member Marla Hartl,

the Payment Administrator shall pay the entire amount of $3,500.00 to Ponticelli & Vito.

Simultaneously, the Payment Administrator shall send to EEOC a copy of the check.

Before or contemporaneously with the entry of this Consent Decree, the attorneys

identified in Paragraphs 23-24 and their respective firms shall provide IPA with full and

complete releases of attorneys' liens.

25. Claims of Deceased Persons. Monetary payments will be made on behalf of

deceased claimants through representatives of their estate or next of kin if appropriate

documentation (e.g., letters testamentary or the equivalent), and a release indicating that the

signatory is authorized to release the claims of the deceased person, is provided. No further

documentation from Antonio Porter (on behalf of Intervenor Rhonda Porter) or from Annie

Eichelburger (on behalf of Brittany Ingram) is necessary. Payments will be made directly to

Antonio Porter individually and Annie Eichelburger individually. Any sums.paid to any other

10

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 11 of 53 PageID #:16850
deceased claimant shall be made payable to the estate of the deceased claimant, or if no estate exists, to the decedent's next of kin.
26. Acting in its discretion and subject only to final approval by the Court, EEOC shall assign each Eligible Claimant to one of four "claimant tiers," defmed by EEOC to reflect, in EEOC's sole discretion and judgment, approximately the relative severity of the Eligible Claimants' claims. In assigning Eligible Claimants among the "claimant tiers," EEOC will consider the following factors: (i) severity of harassment, (ii) duration of harassment, (iii) extent of harm, (iv) length of employment, (v) whether the Eligible Claimant complained to any supervisor, manager, or human resource representative at IPA regarding her allegations of sexual harassment, and (vi) whether, and if so, the extent to which the Eligible Claimant complained to EEOC and cooperated or participated in this litigation prior to entry of this Decree.
27. Acting in its discretion and subject only to fmal approval by the Court, EEOC shall determine the portion of each of the four payments to the Settlement Fund that will be allocated to each of the "claimant tiers" provided for by the immediately preceding paragraph. The amounts allocated to each of the "claimant tiers" will vary from other tiers both in gross aggregate amount and on a per capita basis. Within each "claimant tier," the amount of monetary relief to be received by each Eligible Claimant shall be equal and shall reflect the factors enumerated in paragraph 26, above. This Decree contemplates that there will be significant differences in amounts individually received by Eligible Claimants assigned to each tier as compared to those in other tiers.
28. Notification of Final Gross Settlement Amount and Release of Claims. Within twenty-one (21) days after entry of this Decree, the EEOC shall mail to each Eligible Claimant a letter notifying her of the gross amount of the payment to which such Eligible Claimant was
11

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 12 of 53 PageID #:16851
determined to be entitled, and the schedule of her payments, and further notifying each Eligible Claimant that in order to receive any monetary payments under this Decree, she must execute and deliver to EEOC a Release (a copy of which is attached hereto as Exhibit 2). In addition, Plaintiff-Intervenor Marion Tpwson shall execute and return a General Release Agreement to her counsel, who will send it to IPA. The General Release Agreement to be executed by Townson was the result of negotiations between IPA and Townson, who was represented by her own counsel. The EEOC did not take part in those negotiations and has not approved the General Release Agreement. Intervenor Townson shall sign the Settlement Distribution List to indicate that she has confirmed those amounts to be paid to Townson. By entry of this Consent Decree, the Court approves such amounts as well as the amounts stated in Paragraphs 23 and 24 above.
29. Distributions. On a rolling basis, EEOC shall provide the original signed releases to counsel for IPA, with copies thereof to the Payment Administrator. Within seven (7) calendar days of receipt of each such release, the Payment Administrator shall draw on the Settlement Fund checks in the amounts approved by the Court for the Initial Payment Amounts and the first payment to attorneys as specified in Exhibit 7, and shall mail by regular U.S. mail such checks to the addresses provided by each Eligible Claimant on her Release of Claims. Simultaneously, the Payment Administrator shall send to the EEOC a copy of each check. Within seven (7) calendar days of receipt of each anniversary payment made by IPA to· the Settlement Fund, pursuant to Paragraph 13 of the Decree, the Payment Administrator shall draw on the Settlement Fund checks in the amounts specified in Exhibit 7 and approved by the Court for the applicable anniversary payment, and shall mail by regular U.S. mail such checks to the addresses for the Eligible Claimants provided to the Payment Administrator by the Eligible Claimants or the EEOC and to the attorneys at the addresses specified inParagraphs 23-24 above.
12

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 13 of 53 PageID #:16852
Simultaneously, the Payment Administrator shall send to the EEOC a copy of each check. For each payment, the Fund Administrator will issue an IRS form 1099 to each claimant reflecting the amount paid to that individual. Eligible Claimants must advise the Payment Administrator of any changes of address.
30. With respect to the Initial Payment and all subsequent payments made by the Payment Administrator under this Decree, the Payment Administrator shall promptly notify EEOC in writing of any checks that are returned or are not cashed after a period of thirty (30) days has elapsed from the date on which the settlement checks were mailed by the Payment Administrator. EEOC may take, at EEOC's expense, further steps to reach those Eligible Claimants who did not receive and/or deposit their settlement checks. In the event that any portion of the Settlement Fund has not been distributed as required by this Decree after a period of three hundred (300) days has elapsed from the date on which the settlement checks were mailed by the Payment Administrator, then such remaining amounts from the Settlement Fund, including all accrued interest, shall be paid, at the direction of the EEOC, subject to such further orders as the Court may deem appropriate, for the benefit of a not-for-profit organization dedicated to women's workplace interests. EEOC shall determine the organization(s) to receive such funds, subject to Court approval, and shall so notify IPA's counsel. In no event shall there be any reversion of any part of the Settlement Fund to IPA.
31. All costs associated with the distribution of the Settlement Fund to Eligible Claimants shall be paid by IPA, including without limitation, all costs associated with the creation of the Settlement Fund; all postage costs related to the issuance and mailing of checks from the Settlement Fund; all costs relating to fees and expenses of the Payment Administrator, who will be paid his current hourly rate; and any costs and fees related to the collection of any
13

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 14 of 53 PageID #:16853
payment due to the Settlement Fund. Under no circumstances is IPA to be credited with any principal or interest from the Settlement Fund to pay any costs associated with the distribution of
the Settlement Fund. The Payment Administrator shall maintain a separate accounting of such
costs and shall assure that such costs do not reduce the payments to Eligible Claimants.
32. All amounts distributed from the Settlement Fund to Eligible Claimants constitute "compensatory damages," under the Civil Rights Act of 1991,42 U.S.C. §1981a. No payment
made pursuant to this Decree shall constitute or be considered to be back-pay, and no taxes need to be withheld.
Non-Monetary Relief
33. IPA affirms and shall implement and maintain compliance with the following "Statement of Intolerance of Sexual Harassment":
International Profit Associates, Inc. is firmly committed to developing and maintaining a policy of intolerance of sexual harassment and intolerance of retaliation against individuals who report sexual harassment in the company's workplace; to swiftly and firmly responding to any acts of sexual harassment or retaliation of which the company becomes aware; to maintaining a disciplinary system that is designed to strongly deter future acts of sexual harassment or retaliation; to eradicating any vestiges of a work environment that is sexually hostile to women; and to monitoring its workplace in order to ensure tolerance, respect and dignity for all employees.
Creation and Function of Consent Decree Monitors
34. There shall be continuously during the term of this Consent Decree, a team of two (2) independent Consent Decree Monitors (the "Decree Monitors") to oversee the
implementation by IPA of the terms of this Decree. The Decree Monitors will operate as a team and will work together in their oversight of the implementation of this Decree, continuously mindful of their obligation to effectuate the purposes and intents of this Decree. The
recommendations of the Decree Monitors shall reflect their consensus. The Monitors shall be 14

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 15 of 53 PageID #:16854
allowed to familiarize themselves with the allegations of this case by communicating with counsel for either party and/or reviewing documents provided by counsel of either party..Such documents may include, but are not limited to, all court filings associated with this litigation.
35. The Decree Monitors will have broad authority, for the entire term of the Decree, under Court supervision, to determine the policies, procedures and practices that should be developed, modified or implemented to meet the non-monetary relief objectives of this Decree and to otherwise monitor the implementation of the non-monetary relief terms and conditions of this decree. The Decree Monitors shall be Nancy B. Kreiter and George F. Galland, Jr., partner, Miner, Barnhill & Galland, P.C., both of Chicago, who shall serve together as a team, jointly responsible for the work of the panel and accountable to the Court. Because of their substantial experience, the Decree Monitors shall as far as practical avoid performing unnecessary or duplicative work under this Consent Decree. In the event a Decree Monitor is unable or unwilling to continue to serve as a Decree Monitor, EEOC shall, acting in its discretion, designate a replacement for that Decree Monitor, subject to Court approval. IPA shall not have any right to object to any successor Decree Monitor, and its approval of any such successor shall not be required; provided, however, that no successor Monitor will have any connection to the Parties, the claimants or this case, or have any conflicts with IPA or its business.
36. Within two (2) months after their appointment, the Decree Monitors will: (i) evaluate all existing employment policies, procedures and practices that are related to the objectives contained in the Statement oflntolerance of Sexual Harassment and all other terms and conditions of this Decree; and (ii) after consultation with EEOC and IPA, make recommendations for any changes to such existing policies, procedures and practices that the Decree Monitors believe are necessary or appropriate for achieving IPA's Statement of
15

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 16 of 53 PageID #:16855
Intolerance of Sexual Harassment, and for any other changes which the Decree Monitors believe are necessary to effectuate the purposes and intents of this Decree. The Decree Monitors shall report their findings and recommendations in writing to EEOC and IPA within four (4) months of the entry of this Decree; this first "interim" report to EEOC and IPA shall be confidential and shall not be submitted to the Court except as necessary or appropriate in connection with any subsequent application to the Court.
37. IPA shall promptly implement each recommendation of the Decree Monitors made at any time during the term of this Consent Decree, unless, within twenty-one (21) business days after receiving a recommendation, IPA files an objection with the Court that the Decree Monitors'. recommendation, in whole or in part, would require IPA to apply what would be generally acknowledged to be manifestly unsound business judgment or would be generally acknowledged to be technically not feasible.
38. In the event that IPA files with the Court an objection to any ofthe Decree Monitors' recommendations, EEOC will participate in the proceedings with the Court, which shall be public proceedings. The Court, acting in its discretion, may order IPA to implement the Monitors' recommendation.
39. Within one (1) year after their appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices that are related to the Statement of Intolerance of Sexual Harassment, and shall submit a written report (which shall be a public report) to EEOC, IPA and the Court setting forth the following information:
A. an assessment of whether IPA maintains or has successfully implemented each specific policy and practice ordered in paragraph 50 below;
B. for each policy, procedure or practice outlined in paragraph 50 below that 16

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 17 of 53 PageID #:16856
has not been maintained or successfully implemented, a statement discussing the reason for IPA's failure to maintain or implement such policy, procedure or practice; C. an evaluation of the impact of any specific changes made pursuant to this Decree; D. an assessment of the effectiveness ofiPA's policies and practices for achievement ofiPA's Statement of Intolerance of Sexual Harassment; E. recommendations for any changes to existing practices, policies or programs or any additional policies, practices or programs that the Decree Monitors deem necessary or appropriate for achieving IPA's Statement of Intolerance of Sexual Harassment and the terms of this Decree; and F. timetables for implementation and completion of compliance with any of their recommendations, subject to the terms of this Decree. 40. Thereafter, for the duration of the Decree, the Decree Monitors will be responsible for continuing the review and evaluation of all ongoing employment policies and practices of the Company relating to IPA's Statement of Intolerance of Sexual Harassment and the terms of this Decree, as well as monitoring the impact and effectiveness of their recommendations. The Decree Monitors will continue during this time to recommend revisions or modifications to ongoing employment policies and practices in order to achieve the Statement of Intolerance of Sexual Harassment and the terms of this Decree. At the end of each successive year, the Decree Monitors shall submit an annual public report to EEOC, IPA and the Court setting forth the information described in paragraph 39 herein. 41. IPA shall fully cooperate with the Decree Monitors in connection with their
17

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 18 of 53 PageID #:16857
efforts to oversee and monitor the implementation of the non-monetary relief objectives of the Decree, including providing reasonable access to all employees and relevant documents and other sources of information, in whatever form they are maintained in the ordinary course of business, as the Decree Monitors deem necessary or appropriate to the exercise of their authority. The Decree Monitors, as they deem necessary or appropriate, shall have reasonable access to all IPA facilities. The Decree Monitors, as they deem necessary or appropriate, but no less than annually, may interview IPA officers and employees at any level of the organization outside the presence of IPA management or counsel. IPA also agrees to provide the opportunity to any employee regardless of location to be able to have an interview with the Consent Decree Monitors if the employee so requests. The Decree Monitors shall use their discretion to hold any such interview in person or by telephone. The Decree Monitors shall make best efforts to minimize the disruption to the workplace during the course of their oversight. IPA shall facilitate the work of the Decree Monitors by providing prompt access to employees, documents, and information as requested by the Decree Monitors and by otherwise supporting and cooperating with the work of the Decree Monitors. Given the need of each Decree Monitor to review confidential business information of IPA, each Decree Monitor will sign an appropriate confidentiality agreement.
42. IPA shall be responsible for the implementation of all non-monetary relief under the terms of this Decree, except as otherwise provided herein. IPA shall not be precluded from developing and implementing its own programs relating to sexual harassment as it may fmd appropriate, subject to the approval of the Decree Monitors. In formulating their determinations and recommendations, the Decree Monitors will take such programs into account.
43. IPA shall, within no more than 30 (thirty) days of receipt of the Decree Monitors' 18

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 19 of 53 PageID #:16858
respective statements or bills, fully compensate all Decree Monitors at their full customary rates as may be from time to time in effect. IPA shall pay any and all reasonable costs and expenses of the Decree Monitors necessary or appropriate in the judgment of the Decree Monitors, acting in their discretion, to fulfill the work of the Decree Monitors. This may include, but is not limited to, the use of paralegals or additional staff to assist the Decree Monitors in accomplishing the goals of the Consent Decree.
Monitoring of Complaints 44. In addition to the functions and purposes described above, the Decree Monitors shall also have the responsibility for overseeing the investigation of all sexual and sex-based harassment and related retaliation complaints reported to IPA. The Decree Monitors may also receive such complaints directly from IPA employees. 45. IPA shall notify the Decree Monitors of all such complaints reported to IPA and shall transmit to the Decree Monitors all documentation of each such complaint reported to IPA as soon as practicable and, in any event, no later than the close of the next business day after IPA receives any such complaint. 46. IPA shall inform all employees of the appointment and function of the Decree Monitors, and each individual who makes a complaint (whether oral or written) to IPA shall receive, upon making a complaint, a written notice informing him/her of the existence and function of the Decree Monitors. Such notice shall provide the name, telephone number and address at which the Decree Monitors may be reached, and shall inform the complainant of his/her right to contact the Decree Monitors and to appeal IPA's fmdings and proposed remedial actions to the Decree Monitors. 47. The Decree Monitors will oversee the investigation and, where appropriate, may
19

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 20 of 53 PageID #:16859
make recommendations to IPA concerning the conduct of the investigation of each such complaint. IPA shall follow any recommendations made by the Decree Monitors concerning the conduct of the investigation. The Decree Monitors may also interview the complaining party, if the Decree Monitors deem it appropriate.
48. Upon completion of the investigation, IPA shall promptly prepare and provide the Decree Monitors with a copy of a written report summarizing the investigation undertaken and any remedial actions taken or proposed by IPA, and shall also promptly communicate to the complaining party the results ofthe investigation and the remedial actions taken or proposed, if any, and shall further inform the complaiiring party of her right to appeal IPA's fmding to the Decree Monitors.
49. If, upon receiving and reviewing an appeal from an individual complainant or upon its own initiative, the Decree Monitors believe that the remedial action proposed by IPA is inconsistent with IPA's Statement of Intolerance of Sexual Harassment or with the terms of this Decree, the Decree Monitors shall first attempt to resolve the disagreement with IPA. If IPA and the Decree Monitors are unable to reach a resolution of their disagreement to the satisfaction of the Decree Monitors, the Decree Monitors shall report to EEOC any such inconsistency. Except for communicating as may be necessary with IPA and EEOC, the Decree Monitors shall . retain all information supplied by IPA relating to each complaint in strict confidence.
Specific Non-Monetary Relief 50. In order to effectuate the objectives embodied in IPA's Statement oflntolerance of Sexual Harassment and this Decree, IPA shall maintain or make whatever specific modifications are necessary to its existing policies, procedures and practices in order to ensure at a minimum that the following policies, procedures and practices are in effect:
20

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 21 of 53 PageID #:16860
A. Sexual Harassment Policy and Complaint Procedure. Within 45 (forty-five) days of entry of this Decree, IPA shall disseminate and maintain a sexual harassment policy and complaint procedure that: 1. provides examples to supplement the definitions of sexual harassment and sex-based harassment; 2. includes strongnon-retaliation language with examples to supplement the defmition of retaliation, and provides for substantial and progressive discipline for incidents of retaliation; 3. provides that complaints of sexual harassment, sex-based harassment and/or retaliation will be accepted by IPA in writing and orally; 4. provides a timetable for commencing promptly an investigation after a complaint is made or received and for remedial action to be taken promptly upon conclusion of an investigation; 5. indicates that, promptly upon the conclusion of its investigation of a complaint, IPA will communicate to the complaining party the results of the investigation and the remedial actions taken or proposed, if any; 6. provides for substantial discipline, including termination and discipline short of termination- such as suspensions without pay -- as a possible consequence for violations of its sexual harassment policy; 7. provides its employees with convenient, confidential and reliable mechanisms for reporting incidents of sexual harassment, sex-based harassment and retaliation; 8. omits any reference to disciplining employees for "false" complaints of sexual harassment; 21

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 22 of 53 PageID #:16861
9. designates at least two employees from the department charged with investigating such issues as persons who may be contacted, and their names, responsibilities, work locations and telephone numbers shall be routinely and continuously posted in prominent and conspicuous locations throughout its facilities;
10. provides that in the event an employee has a complaint of sexual harassment against any officer or director of IPA, any person with any ownership interest in IPA, or any member of IPA' s Human Resources Department, that IPA will employ an outside investigator who has not previously been employed by or associated with IPA in any capacity, who shall be subject to the approval of the Decree Monitors, to investigate the complaint of sexual harassment;
11. provides that IPA shall make best efforts to ensure that appropriate remedial action is taken to resolve complaints and to avoid the occurrence of further incidents of sexual harassment, sex-based harassment and/or retaliation.
12. provides that for the duration of the Consent Decree, the Decree Monitors will monitor IPA's investigation and resolution of complaints alleging violations of IPA's sexual harassment policy. The Decree Monitors shall be identified in IPA's sexual harassment policy with their names and contact information, including phone numbers and email addresses, and the policy shall provide that employees can bring complaints of sexual harassment directly to the Decree Monitors; and
13. provides that for the duration of the Decree, individual complainants may appeal IPA's findings and remedial actions proposed or taken to the Decree Monitors in accordance with the procedures set forth in paragraphs 44-49 herein.
B. Policies Designed To Promote Supervisor and Managerial Accountability. 22

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 23 of 53 PageID #:16862
1. IPA shall impose substantial discipline -- up to and including termination, suspension without pay or demotion -- upon any supervisor or manager who engages in sexual harassment or sex-based harassment or permits any such conduct to occur in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding concerning any such conduct. IPA shall communicate this policy to all of its supervisors and managers and shall include it in its written sexual harassment policy.
2. IPA shall advise all managers and supervisors of their duty to actively monitor their work areas to ensure employees' compliance with the company's sexual harassment policy, and to report any incidents and/or complaints of sexual harassment, sex-based harassment and/or retaliation of which they become aware to the department charged with handling such complaints.
3. IPA shall link the handling of equal employment opportunity ("EEO") issues, including the prevention and eradication of sexual harassment, to the supervisor salary/bonus/promotion structure.
C. Training on Prevention and Eradication of Sexual Harassment. 1. For purposes of this Consent Decree, the phrase "sexual harassment training" means training designed and intended to further effectively the prevention and eradication of sexual harassment from the workplace and the remediation of the effects of sexual harassment, including, but not limited to, training of all employees, including senior managers, owners, and employees who reside outside of Illinois, regarding: 23

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 24 of 53 PageID #:16863
(a) the obligation of mangers and supervisors not to engage in sexual harassment themselves and to prevent and stop sexual harassment by others, including fellow managers and supervisors,
(b) the recognition of sexual harassment, (c) the prevention of sexual harassment, (d) the reporting and investigation of sexual harassment, (e) the making and handling of complaints of sexual harassment, (f) the discipline and treatment of individuals who engage in sexual
harassment, and (g) the provision of appropriate remedies to victims of sexual harassment. 2. Within two (2) months after appointment of the Consent Decree Monitors, the Consent Decree Monitors, as provided in paragraph 36, shall review and evaluate IPA's sexual harassment training for all employees ofiPA (including all employees who work both inside and outside of the Buffalo Grove, Illinois offices), including all officers, managers, and supervisory personnel. 3. After the initial review, the Consent Decree Monitors shall determine whether, in their judgment, changes in the training are necessary or appropriate. If the Monitors determine that such changes are necessary or appropriate, IPA shall implement the necessary changes to the training, subject to the oversight and approval of the Monitors. If the Monitors determine that no changes are needed, IPA need not make any changes. 4. During the term of this Decree, the Consent Decree Monitors shall monitor the implementation of all the terms and conditions of this Decree relating to sexual
24

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 25 of 53 PageID #:16864
harassment training, and shall continuously assess whether in the Monitors' judgment the training is actually accomplishing the purposes and intents of this Decree. The Monitors shall have the authority to require revisions in the sexual harassment training and to require the delivery of additional sexual harassment training if, in their assessment, it is necessary or appropriate to accomplish the purposes and intents of this decree. 5. Within 90 days after dissemination of the Sexual Harassment Policy as provided for in paragraph 50, and subject to the oversight and approval of the Decree Monitors appointed under this Consent Decree, IPA shall cause to b~ conducted sexual harassment training for all employees of IPA (including all employees who work both inside and outside of the Buffalo Grove, Illinois offices), including all officers, managers, and supervisory personnel. Such training shall be conducted subject to the oversight and approval of the Decree Monitors and shall be designed and implemented to carry out the purposes ofthis Decree and the objectives outlined in Paragraph 50(C)(l) above. 6. IPA shall in addition provide: mandatory annual refresher sexual harassment training to all employees, including all officers, managers and supervisors (including senior managers), and mandatory sexual harassment training to all new employees during employee orientation. The mandatory annual refresher sexual harassment training and the training for new employees during orientation shall be subject to the oversight and approval of the Decree Monitors. D. Restructure of Human Resources Department. For the duration of the Decree, IPA shall have an experienced human resources professional, subject to the approval of the Decree
25

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 26 of 53 PageID #:16865
Monitors, operate and manage its human resources functions (including without limitation those related to sexual harassment). Among his or her other duties, the human resources professional shall have primary responsibility for all EEO functions at IPA. In the event the human resources professional leaves the employment ofiPA (voluntarily or involuntarily) during the duration of this Decree, IPA shall hire another experienced human resources professional, subject to the approval of the Decree Monitors and the restrictions noted above, to perform the human resources functions.
Posting of Notice 51. Within two (2) weeks after entry of this Decree, IPA shall post a notice in the form of Exhibit 1 attached to this Decree in prominent and conspicuous locations throughout its facilities. The notice shall remain posted for the duration of this Decree. In the event that the persons and/or departments to whom individuals should make complaints alleging sexharassment and/or sex-based harassment change during the term of the Decree such that the information contained on the Notice is no longer accurate, IPA shall immediately notify EEOC, who shall then prepare and deliver to IPA a new notice that contains the correct information. IPA shall thereupon promptly replace the old notices with the revised notices. Within two (2) weeks after entry of this Decree, IPA shall certify in writing to EEOC that the Notice has been posted, and shall inform EEOC of the locations where it has been posted. 52. IPA shall provide a copy of the Decree to any employee who requests one.
Dispute Resolution 53. In the event that any Party to this Decree believes that another Party has failed to comply with any provision(s) of the Decree, the complaining Party shall notify the alleged noncomplying Party in writing of such non-compliance and afford the alleged non-complying Party
26

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 27 of 53 PageID #:16866
ten (10) business days to remedy the non-compliance or satisfy the complaining Party that the alleged non-complying Party has complied. If the alleged non-complying Party has not remedied the alleged non-compliance or satisfied the complaining Party that it has complied within ten (10) business days, the complaining Party may apply to the Court for appropriate relief. In the event that, upon the expiration date of this Decree, a dispute is pending pursuant to this paragraph, then the term of this Decree shall be extended, with respect to the issue in dispute only, until such time as such dispute is resolved by the Parties or the Court.
Enforcement of Decree 54. EEOC and IPA will make best efforts to effectuate the terms of this Decree. 55. EEOC, IPA, and the Decree Monitors shall each have independent authority to seek the judicial enforcement of any aspect, term or provision of this Decree and may take appropriate measures to effectuate enforcement ofthis Consent Decree and any of its terms or provisions. 56. Eligible Claimants other than Intervenors (solely with respect to their individual monetary relief), shall have no independent right to enforce any of the terms of this Decree. Nothing in this Decree is intended to confer upon any person other than EEOC, Intervenors (solely with respect to their individual monetary relief), IPA, and the Decree Monitors the right to seek enforcement of this Consent Decree or of any of the terms contained herein. 57. The Court will take whatever measures it deems appropriate to effectuate the enforcement of the terms of this Decree.
Confidentiality 58. Except as required by law, EEOC and IPA shall keep confidential the Distribution Amount that each Eligible Claimant received.
27

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 28 of 53 PageID #:16867

59. Except as provided in Paragraphs 23, 24, and 31, each Party shall bear its own

costs and attorneys' fees associated with this litigation, and no Party shall seek reimbursement

for any outstanding litigation costs.

Other General Provisions

60. Computation of Time Periods. In computing any period of time prescribed or

allowed by this Decree, unless otherwise stated, such computation shall be made consistent with

the Federal Rules of Civil Procedure.

61. Counterparts. This Decree may be executed·in one or more counterparts, and

each executed copy shall be deemed an original which shall be binding upon all parties hereto.

62. Persons Bound By Decree. The terms of this Consent Decree are and shall be

binding upon the Parties, and upon all of their present and future representatives, agents,

directors, officers, assigns and successors (partial or complete).

63. Notices. Except as is otherwise provided for in this Decree, all notifications,

reports and communications to the Parties required under this Decree shall be made in writing

and shall be sent py first class mail or email to the following persons:

For EEOC:

For IPA:

Jeanne B. Szromba, Esq. Ann M. Henry, Esq. EEOC 500 W. Madison St., Suite 2000 Chicago, Illinois 60661 jeanne.szromba@eeoc.gov ann.heruy@eeoc.gov

John Burgess International Profit Associates, Inc. 1250 Barclay Boulevard Buffalo Grove, Illinois 60089
and

For Intervenor Townson: Dennis P.W. Johnson, Esq.

Ronald L. Bell Ronald L. Bell & Associates, P.C. 1275 Barclay Blvd., Suite 100
28

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 29 of 53 PageID #:16868

Pugh Jones Johnson & Quandt, P.C.
g;:::;~;,ai~~~~e~ suite 3400
djohnson@pjjq.com

13~\o (::,rcv·e.. ...Clrl~go, Illinois 60602 l.ICJCJ&/
~:;.-e:::"""'

J) .,b.
f}. c?TI/ _ ~

Any Party may change such addresses by written notice to the other Parties, setting forth a new ~' -

address for this purpose.

2. Construction. The terms of this Decree are the product ofjoint negotiations and

shall not be construed as having been authored by one party rather than another.

3. Integration. This Decree constitutes the entire agreement among the Parties with

respect to the matters discussed herein and it supersedes all negotiations, representations,

comments, contracts, and writings prior to the date of this Consent Decree. No waiver,

modification or amendment of any provision of this Decree shall be effective unless made in

writing, approved by EEOC and IPA and approved and ordered by the Court.

Clj ~11. SO ORDERED, ADJUDGED AND DECREED-Jhis

day of

nited States District Court Judge Joan Gottschall

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 32 of 53 PageID #:16871

Agreed to in form and content:

FOR THE PLAINTIFF, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: 131 M Street, NE Washington, DC 20507

P. DAVID LOPEZ General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel
~t. ~'clL?:M/JJ-P!
John C. Hendrickson Regional Attorney
~~~(M._
Diane I. Smason Supervisory Trial Attorney
~OA~j(JOA
Aaron DeCamp Trial Attorney

anrie Szromba rial Attorney
2J Q/VVrL~ ~
Ann Henry Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
500 West Madison Street Suite 2000 Chicago, Illinois 60661 (312) 869-8122
3/ Dated: '2.-J'2-0 l\.

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 33 of 53 PageID #:16872
Agreed to in form and content: FOR PLAINTIFF-INTERVENOR MARION TOWNSON

Pugh Jones Jo son & Quandt, P.C. 180 N. LaSalle Street, Suite 3400 Chicago, IL 60601 (312) 768-7800

Dated:

31

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 34 of 53 PageID #:16873

Agreed to in form and content:
FOR THE DEFENDANT, INTERNATIONAL PROFIT ASSOCIATES, INC.:

Cia-L Dateq:

t

Dated: ·--~--

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 35 of 53 PageID #:16874
EXHIBIT 1
33

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 36 of 53 PageID #:16875 NOTICE TO ALL IPA EMPLOYEES POSTED PURSUANT TO A CONSENT DECREE
This notice has been posted pursuant to an Order of the Court, approving the Consent Decree entered in resolution of a lawsuit brought by the U.S. Equal Employment Opportunity Commission ("EEOC") against International Profit Associates, Inc. ("IPA") in June 2001 in the Federal District Court for the Northern District of Illinois. EEOC alleged in the lawsuit that IPA engaged in a pattern or practice of sexual harassment against women who worked at IPA. On June 14, 2010, with IPA's consent, the Court issued an order finding that IPA had engaged in a pattern or practice of tolerating sexual harassment against its female employees from November 25, 1997 to February 14,2005.
To resolve the claims of the lawsuit, IPA and EEOC have agreed to and the Court has entered a Consent Decree which provides, among other things, that:

• IPA will pay monetary relief totaling $8,000,000 to victims of sexual harassment;

• IPA is enjoined from discriminating against women on the basis of sex and from subjecting women to sexual harassment and sex-based harassment;

• IPA is enjoined from retaliating against any person because the individual complains of sexual harassment, cooperates with any IPA or government investigation of sexual harassment, or participates as a witness or potential witness in any investigation or legal proceeding involving sexual harassment;

• IPA will provide mandatory training on sexual harassment to all employees; and

• A panel of two independent Consent Decree Monitors will be appointed to oversee implementation of the terms of the Consent Decree by IPA, including overseeing the investigation of complaints of sexual harassment or retaliation. These Consent Decree Monitors may also receive complaints of sexual harassment directly. They are: Nancy Kreiter, at (847) 446-0321or nkrieter@comcast.net, and George Galland, at (312) 751-1170 or GGalland@LAWMBG.com.
Any employee who is found to have retaliated against any other employee because such employee participated in this lawsuit will be subject to progressive discipline, up to and including discharge.

Should you have any complaints of discrimination, you should contact Jon Andes, Executive Director of Human Resources, at (847) 808-0061 x 16001, or Valerie Brown, Assistant Director of Human Resources, at x 16023.
Pursuant to the Consent Decree, and for the duration of the Consent Decree, IPA will permit individuals who complain about sexual harassment to appeal IPA's findings and remedial actions to the Consent Decree Monitors. Copies of the Consent Decree may be obtained through the Human Resources Department.

Employees have the right to bring complaints of discrimination, including sexual harassment, to the United States Equal Employment Opportunity Commission, Chicago District Office at 500 West Madison Street, Suite 2000, Chicago, Illinois 60661, (312) 353-2713, or the Illinois Department of Human Rights, 100 W. Randolph, lOth Floor, Chicago, IL 60601, (312) 814-6245.

This is an official notice and shall not be defaced by anyone. This notice shall remain prominently posted in

prominent and conspicuous locations throughout IPA's f ·ties til three (3) years from the date below. This

Official Notice shall not be altered, defaced, covered or f,(
t>

erial.

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 37 of 53 PageID #:16876
EXHIBIT 2
2

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 38 of 53 PageID #:16877

In consideration for$

RELEASE OF CLAIMS paid to me by International Profit Associates

("IPA"), in connection with the resolution of EEOC, et al. v. International Profits Associates.

Inc., 01 C 4427 (N.D. Ill.), I waive my right to recover for any claims of sexual harassment or

sex-based harassment arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

etseq., and the Civil Rights Act of 1991, 42 U.S.C. §1981a, that I had against IPA prior to the

date of this release including those that were included in the claims alleged in EEOC's complaint

in EEOC. et al. v. Intema~onal Profits Associates, Inc., 01 C 4427 (N.D. Ill.).

Date

Signature of Claimant

Printed Name of Claimant

Street City, State, Zip Code

3

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 39 of 53 PageID #:16878
. EXHIBIT 3
1

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 40 of 53 PageID #:16879

GUARANTY OF FUTURE PAYMENTS

The undersigned, John R. Burgess, an individual ("Guarantor"); in consideration of the settlement of the claims, alleged by the U.S. Equal Employment Opportunity Commission (the "EEOC") and Intervenors, in the matter of EEOC, et al. v. International Profit Associates, Inc., 01 C 4427 (the "Lawsuit"), does personally, hereby unconditionally guarantee all future payments of monetary relief (a total of $5,500,000), as detailed in Paragraphs 12-13 of the Consent Decree, entered into as part of the Lawsuit, a copy of which is attached hereto and made a part hereof(the "Consent Decree").

John R. Burgess acknowledges, represents, and warrants that he is the principal owner and Managing Director of
International Profit Associates, Inc., and that lnternatiomil Profit Associates, Inc.'s agreement to the Consent Decree, with his Guaranty of Future Payments, is in the best interest of both John R. Burgess and International Profit Associates, Inc., and that
the EEOC's agreement to the Consent Decree, with the Guaranty of Future Payments of John R. Burgess, constitutes good and sufficient consideration for such Guaranty of Future Payments by John R. Burgess.

It is recognized and agreed that this Guaranty of Future Payments is a substantial part of the consideration for the signing of the Consent Decree by the EEOC and that the EEOC would not agree to any deferred payment under the Consent Decree without the agreement of Guarantor to execute this Guaranty ofFuttire Payments.

Guarantor also agrees that the EEOC is not first required to enforce against IPA, with respect to any liability, obligation, or duty guaranteed by this Guaranty of Future Payments, before seeking enforcement thereof against the Guarantor. EEOC and Guarantor acknowledge that this is a Guaranty of Future Payments and not a Guaranty of Collection.

The parties hereto acknowledge that a lawsuit may be brought and maintained against the Guarantor, as provided in the Consent Decree, subject to the cure provision found at Paragraph 53 therein, to enforce any liability, obligation or duty guaranteed by this Guaranty of Future Payments, without the necessity of joining International Profit Associates, Inc. or any other person or entity in such lawsuit.

As detailed in Paragraph 14 of the Consent Decree, the Guarantor hereby guaranties all future payments ($5,500,000.00) associated with the enforcement of the Consent Decree. Such costs include, but are not limited to, the following: all costs and fees associated with the receipt, collection and distribution ofmomitary relief; all cost and fees of the monitors; and all costs and fees incurred by EEOC in connection with the enforcement of the Consent Decree and/or the Guaranty of Future Payments.

Pursuant to Paragraph 16 and .53 of the Consent Decree, the Guarantor is bound by the acceleration and cure provisions of the Consent Decree, should IPA not make a timely payment as detailed in the Decree.

Should lPA miss any timely payment under Paragraph I 3 of the Consent Decree, the Guarantors hereby· agree that

any litigation and/or action related to or arising from this Guaranty shall be brought only in the United States District Court

for the Northern District of lllinois, Eastern Division, in accordance with the enforcement provisions in the Consent Decree.

oft,&})l.l~ ~~ EXECUTED to be effective as

day of

, 20 II.

gess, individually and personally Address: 55 S. Wynstone Drive
Barrington, Illinois 60010 Phone: 847-304-4678
36

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 41 of 53 PageID #:16880
EXHIBIT4

• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 42 of 53 PageID #:16881

This instrument prepared by and please return to:
LaVon M. Johns, Esq. Pugh, Jones, Johnson & Quandt, P.C. Suite 3400 180 N. LaSalle Chicago, IL 60601

THIS IS A BALLOON JUNIOR MORTGAGEAND THE FINAL PRINCIPAL PAYMENT OR THE PRINCIPAL BALANCE DUE UPON MATURITY IS $5,500,000.00, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THEMORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.

SHORT FORM JUNIOR MORTGAGE AND SECURITY AGREEMENT

THIS OPEN-END JUNIOR MORTGAGE AND SECURITY AGREEMENT ("Mortgage") made as of March _ , 2011, by JOHN R. BURGESS, CO-TRUSTEE ("Trustee") OF THE DANA BURGESS REVOCABLE TRUST DATED JUNE 7, 2006 (the "Trust") ("Mortgagor"), having its mailing address at 55 Wynston, Barrington, Illinois 60010, in favor ofU.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("Mortgagee"), having anaddress at 500 W. Madison, Suite 2000, Chicago, IL 60661.

All capitalized terms not defmed herein shall have the meaning ascribed to them in the Consent Decree dated of even date herewith.

WI TN E S S E T H:

WHEREAS, the Trust is the owner in fee simple ofcertain real property (the "Premises") located in the City of Naples, Collier County, State of Florida, as more particularly described on Exhibit A attached, as improved on the date hereof and the Trustee holds a beneficial interest in the Trust. The Trust and Trustee shall hereinafter collectively be referred to as "Mortgagor";

WHEREAS, pursuant to that certain Consent Decree between and among the Equal Employment Opportunity

Commission (as Plaintiff) and Marion Townson, Phyllis Lopez and Rhonda Porter (as Plaintiff Intervenors) and

International Profit Associates, Inc. (as Defendant) in that certain matter known as EEOC, eta/.. vs. International Profit

Associates, Inc., 01 C 4427 in the U.S. District Court for the Northern District ofIllinois, Eastern Division (the "Consent

Decree"), Trustee has an indebtedness which shall constitute a settlement amount (the "Settlement") in the amount of AVE vn 1L-LI ol\..j

EIOII'f MILLiffi'J ~01166tbs :E>OLLAitS U.S-: ($8,000,000.00.) (the "Settlement Amount"); and

FI\IE t-\U~\)I(E\) A-t-..11) NO {loo'l\..s DcLLA-1<. v.s:.

(.f5,Scx:>,ooo01')

[\ f'l k. 1:1·()( Jd ·

WHEREAS, Trustee is required to execute and deliver this Mortgage as a covenant and condition of the

(1:'). .

Consent Decree and the Trust has consented to the execution and delivery of this Mortgage.

~·

1))h£

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NOW, THEREFORE, Mortgagor does hereby give, grant, bargain, sell, assign, convey, warrant, mortgage, and pledge to Mortgagee, its successors and assigns, the Premises and all ofMortgagor's and Trustee's estate, right, title and interest including therein;
TOGETHER with all right, title and interest ofMortgagor, including any after-acquired title or reversion, in and to the ways, easements, streets, alleys, passages, water, water courses, riparian rights, oil, gas and other mineral rights, gaps, gores, rights, hereditaments, liberties and privileges thereof, if any, and in any way appertaining to the Premises;
TOGETHER with all buildings and improvements of every kind and description now or hereafter erected or placed on the Premises including, without limitation, all materials intended for construction, reconstruction, alteration and repair ofsuch improvements now or hereafter erected thereon, all ofwhich materials shall be deemed to be included within the Mortgaged Property (as hereinafter defined) immediately upon the delivery thereof to the Premises, and all fixtures now or hereafter owned by Mortgagor and attached to or contained in and used in connection with the Premises, including, without limitation, all fixtures and appurtenances thereof; it being intended that all the above-described property owned by Mortgagor and affixed by Mortgagor on the Premises shall, so far as permitted by law, be deemed to be fixtures and a part ofthe realty, and security for the indebtedness of Mortgagor to Mortgagee hereinafter described and secured by this Mortgage, and as to the balance ofthe above-described property, this Mortgage is hereby deemed to be as well a security agreement for the purpose of creating hereby a security interest in such property, securing such indebtedness, for the benefit of Mortgagee; all of the property described in this paragraph is hereinafter sometimes collectively called the "Improvements";
TOGETHER with all awards and other compensation heretofore or hereafter to be made to the present and all subsequent owners of the Mortgaged Property for any taking by eminent domain, either permanent or temporary (a "Taking"), of all or any part of the Mortgaged Property or any easement or other appurtenance thereof, including severance and consequential damage and change in grade ofstreets (collectively, "Taking Proceeds"), and any and all refunds ofimpositions or other charges relating to the Mortgaged Property or the indebtedness secured by this Mortgage.
The property described above is hereafter called the "Premises" to the extent that such property is realty. The Premises and the Improvements are hereafter collectively called the "Mortgaged Property."
TO HAVE AND TO HOLD, all and singular, the Mortgaged Property, whethernow owned or held or hereafter acquired by Mortgagor, with the appurtenances thereunto belonging, unto Mortgagee, its successors and assigns, forever. Mortgagor does hereby covenant with Mortgagee, its successors and assigns, that at and until the ensealing of these presents, the Trust is well seized of the Premises as a good and indefeasible estate in fee simple and has good right to bargain, sell and convey the Mortgaged Property in manner and form as above written; that Trustee holds the beneficial interest in the Trust; that title to the Mortgaged Property is free and clear of all defects, liens and encumbrances except for real estate taxes and assessments not yet due or payable and the matters described on Exhibit B (the "Permitted Exceptions"); and that Mortgagor will warrant and defend the Premises, with the appurtenances thereunto belonging, and the Improvements to Mortgagee, its successors and assigns, forever, against all liens, security interests, encumbrances, defects, claims and demands whatsoever.
Mortgagor has executed and delivered this Mortgage to secure the Payment ofall amounts or charges required to be paid by Trustee pursuant to this Mortgage and the Consent Decree.
PROVIDED, HOWEVER, that if Mortgagor or Trustee shall pay or cause to be paid to Mortgagee the amount due under the Consent Decree on or before the date on which the outstanding principal balance is due and payable in full in accordance with the terms of the Consent Decree, and in the manner stipulated therein and herein, and if Mortgagor shall have kept, performed and observed all of the covenants and conditions contained in this Mortgage and all ofthe other Loan Documents (as defined in Paragraph 16 hereof), then this Mortgage shall cease, determine and be void, but otherwise shall remain in full force and effect.
Mortgagor further covenants and agrees as follows:
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1.

Payment of Indebtedness. Mortgagor shall pay promptly the indebtedness described in the Consent

Decree at the time and in the manner provided in the Consent Decree, in this Mortgage and any of the other Loan

Documents (as defined in Paragraph 16 hereof).

2.

Protection Against Charges. Except for the Permitted Exceptions, Mortgagor shall keep the Mortgaged

Property free from liens of every kind, except only for the Senior Loan, the real estate taxes and general and special

assessments which are not yet due and payable, and mortgage taxes, if any, and shall pay, before delinquency and before

any penalty for non-payment attaches thereto, all taxes, assessments, and other governmental or municipal or public dues,

charges, fines or impositions which are or hereafter may be levied against the Mortgaged Property or any part thereof.

Mortgagor shall also pay, in full, under protest or otherwise in the manner provided by law, any tax, assessment, charge,

fine or imposition described above which Mortgagor contests in accordance with the provisions of law and this

Mortgage.

3.

Insurance and Casualty Damage.

(a)

Mortgagor shall keep, or cause to be kept, all ofthe following insurance policies with respect

to the Mortgaged Property in companies, forms, amounts and coverage satisfactory to Mortgagee, containing waivers of

subrogation and mortgagee clauses in favor of Mortgagee:

(i)

Insurance against loss or damage by fire and such other hazards, casualties and

contingencies (including, without limitation, so-called all-risk coverages) as Mortgagee reasonably

may require, in an amount equal to the replacement cost of the Mortgaged Property, with a

replacement cost endorsement and in such amounts so as to avoid the operation of any coinsurance

clause, for such periods and otherwise as Mortgagee reasonably may require from time to time.

(ii)

If applicable, insurance against rent loss or abatement ofrent, covering payment of

rent and like charges from the Mortgaged Property over a term of not less than twelve (12) months.

(iii) Flood insurance in an amount as Mortgagee may reasonably require ifthe Mortgaged Property is located in a Special Flood Hazard Area (as defined in the National Flood Insurance Act of 1968, as amended).

At Mortgagee's request, Mortgagor shall deliver renewal certificates of all insurance required above, together with written evidence of full payment of the annual premiums therefor at least thirty (30) days prior to the expiration of the existing insurance.

(b)

Notice. In case ofany material damage or destruction ofthe Mortgaged Property, or any part

thereof, or any interest therein or right accruing thereto, Mortgagor shall promptly give Mortgagee written notice

generally describing the nature and extent of such damage or destruction which has resulted or which may result

therefrom. Mortgagee may appear in any such proceedings and negotiations, and Mortgagor shall promptly deliver to

Mortgagee copies of all notices and pleadings in any such proceedings. Mortgagor will, in good faith, file and prosecute

all claims necessary for any award or payment resulting from such damage or destruction. All costs and expenses

incurred by Mortgagee in exercising its rights under this Paragraph 3 shall constitute indebtedness secured by this

Mortgage.

(c)

Application of Insurance Proceeds. Subject to the Senior Loan, and in the event Mortgagor

fails to commence rebuilding ofthe Premiseswithin ninety (90) days ofsuch casualty, upon the occurrence ofany loss or

damage to all or any portion of the Mortgaged Property resulting from fire, vandalism, malicious mischief or any other

casualty or physical harm (a "Casualty"), Mortgagee may elect to collect, retain and apply as a Settlement Amount

prepayment all proceeds (the "Proceeds") of any insurance policies collected or claimed as a result ofthe Casualty after

deduction ofall expenses of collection and settlement, including attorney's and adjusters' fees and charges. Any Proceeds

remaining after payment in full ofthe Senior Loan, the Settlement Amount and all other sums due Mortgagee hereunder

shall be paid by Mortgagee to Mortgagor without any allowance for interest thereon.

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4..

Maintenance oflmprovements.

(a)

None of the Improvements shall be structurally or otherwise materially altered, removed or

demolished, and none of the fixtures on, in or about the Premises shall be severed, removed, sold, mortgaged or

otherwise encumbered, without the prior written consent of Mortgagee in each case. Any Improvements which is

demolished or destroyed in whole or in part shall be replaced promptly by similar Improvements ofcomparable quality,

condition and value as those demolished or destroyed, thereupon becoming part ofthe Mortgaged Property free from any

other lien, security interest or encumbrance on or reservation of title to such property. Mortgagor shall not permit,

commit or suffer any waste, impairment or deterioration ofthe Mortgaged Property or any part thereofand shall keep and

maintain (or cause to be kept and maintained) the same in good repair and condition. Mortgagor shall make (or cause to

be made) all necessary and proper repairs and replacements so that all components ofthe Mortgaged Property will, at all

times, be in good condition, fit and proper for the respective purposes for which they were erected or installed.

(b)

Mortgagor hereby covenants and agrees to comply with, and to cause all occupants of all or

any portion ofthe Mortgaged Property to comply with, all applicable zoning, building, use and environmental restrictions

and all laws, rules, statutes, ordinances, regulations, orders and requirements, including, without limitation,

environmental matters and notices of violation of all governmental authorities having jurisdiction over the Mortgaged

Property or the maintenance, use and operation thereof, and all applicable restrictions, agreements and requirements,

whether or not of record (collectively, "Laws"). Mortgagor hereby agrees to indemnify, defend and hold harmless

Mortgagee and its officers, directors, shareholders, employees, agents and partners and their respective heirs, successors

and assigns (collectively, "Indemnified Parties") from and against any and all claims, demands, losses, costs, damages,

liabilities or expenses incurred or suffered by the Indemnified Parties arising from any failure ofthe Mortgaged Property

to comply with Laws, or from any failure of Mortgagor to obtain, maintain or renew, or to have obtained, maintained or

renewed, any permit or approval required with respect to the Mortgaged Property.

5.

Title Warranty; Title Evidence. Mortgagor hereby confirms the warranties and representations as to

title to the Mortgaged Property made in the granting clause of this Mortgage.

6.

Default. The following events shall be deemed to be an "Event of Default" hereunder:

(a)

Mortgagor or Trustee shall fail to make payment of the Settlement Amount pursuant to the

Consent Decree on the date when such payment is due and payable.

(b)

Any other act or omission described as an Event of Default herein.

Upon such Event of Default, and subject to the Senior Loan, the entire amount ofthe indebtedness hereby secured, shall, at the option of Mortgagee, become immediately due and payable, without execution or other process and without further notice or demand, all of which are hereby expressly waived. Acceleration of maturity, once claimed hereunder by Mortgagee, may, at the option of Mortgagee, be rescinded by written acknowledgment to that effect by Mortgagee, but the tender and acceptance ofpartial payments alone shall not in any way affect or rescind such acceleration of maturity, nor extend or affect the grace period, if any.

7.

Additional Rights upon Default. Without limiting the generality ofthe foregoing, subject to the Senior

Loan, Mortgagee shall have the following additional rights during the continuance of any Event of Default:

(a)

Provided that Trustee fails to commence to rebuild the Premises within ninety (90) days of a

casualty, Mortgagee shall have the immediate right to collect, as the same become due, any and all unearned insurance

premiums or refunds of insurance premiums, due or to become due, and all proceeds and other benefits to be received

under insurance policies of every nature affecting or covering the Mortgaged Property, any and all refunds of taxes,

assessments and other charges heretofore or hereafter paid on or with respect to the Mortgaged Property, together with all

rents and profits of the Mortgaged Property, all of which have been hereby assigned to Mortgagee. In addition,

Mortgagee shall have the right, but shall not be obligated, without notice or demand, to enter immediately upon and take

possession of the Mortgaged Property, together with all documents, books, records, papers and accounts of Mortgagor

relating to the Mortgaged Property or any portion thereof without further consent or assignment by Mortgagor; to

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operate, manage, lease and control the Mortgaged Property either personally or by its agents; and to use such measures, legal or equitable, as Mortgagee may deem proper or necessary to enforce the payment or security ofthe rents, issues and profits of the Mortgaged Property.

(b)

Mortgagor hereby grants full power and authority to Mortgagee as follows: to exercise each

and every one of the rights, privileges and powers herein granted at any and all times hereafter, without notice to

Mortgagor; to lease the Mortgaged Property, or any part thereof, to Mortgagor or any other person or persons, on such

terms and for such periods oftime as Mortgagee may deem proper, and the provisions of any lease made by Mortgagee

pursuant hereto shall be valid and binding upon Mortgagor, notwithstanding the fact that Mortgagee's right ofpossession

may terminate or this Mortgage may be satisfied ofrecord prior to the expiration ofthe term of such lease; and to collect

and receive all ofthe rents, issues, profits and all other amounts past due or to become due to Mortgagor and to apply the

same in such order ofpriority as Mortgagee may determine to all necessary charges and expenses in connection with the

Mortgaged Property, or for interest, principal, whether matured or not, taxes, water charges and assessments, insurance

premiums and any advances made by Mortgagee for improvements, alterations or repairs for the account ofMortgagor or

on account ofthe indebtedness hereby secured. Neither the taking ofpossession nor the collection ofrents by Mortgagee

as described above shall be construed to be an affirmation ofany lease ofthe Mortgaged Property or any part thereof, and

Mortgagee or any other purchaser at any foreclosure sale shall have the right to exercise the right to terminate any such

lease as though such taking ofpossession and collection ofrents had not occurred, subject, however, to the terms of any

subordination, nondisturbance and attornment agreement which may be in effect from time to time with respect to any

part of the Mortgaged Property.

(c)

Without limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee its

attorney-in-fact, coupled with an interest, upon an Event ofDefault, to institute summary proceedings against any lessee

of the Mortgaged Property who fails to comply with the provisions ofhis or its lease. If Mortgagor is occupying all or

any part of the Mortgaged Property upon an Event of Default, Mortgagor agrees to either (i) immediately surrender

possession of the Mortgaged Property to Mortgagee and vacate the Mortgaged Property so occupied by Mortgagor, or

(ii) pay a reasonable rental, determined by Mortgagee, for the use thereof, monthly in advance, to Mortgagee, and, in

default of so doing, may be dispossessed by summary proceedings or otherwise.

(d)

To the extent permitted by law, Mortgagee is hereby authorized and empowered to sell or

cause the Mortgaged Property to be sold at public or private auction, and to convey same by execution and delivery to the

purchaser at such sale a good and sufficient deed of conveyance, to retain out of the proceeds of such sale the amounts

due under the terms ofthis Mortgage and the Consent Decree, the costs and charges of such sale and attorneys' fees and

expenses, all to the fullest extent not prohibited by applicable law, and amounts due to any other person asserting a lien

or otherwise claiming an interest in the Mortgaged Property and to deliver the surplus moneys, if any, to Mortgagor.

(e)

To the extent permitted by law, Mortgagee shall be entitled to the appointment ofa receiver of

the Mortgaged Property as a matter ofright and without notice, which is hereby expressly waived, with power to collect

the rents, issues and profits of the Mortgaged Property, due and to become due without regard to the value of the

Mortgaged Property and regardless of whether Mortgagee has an adequate remedy at law. Mortgagor, for itself and its

successors and assigns, hereby waives any and all defenses to the application for a receiver as set forth above and hereby

specifically consents to such appointment without notice, but nothing herein contained is to be construed to deprive

Mortgagee of any other right; remedy or privilege it may now have, or may hereafter obtain, to have a receiver appointed.

From such rents, issues and profits collected by the receiver or by Mortgagee prior to a foreclosure sale, there shall be

deducted the cost of collection thereof, including, without limitation, real estate commissions, if any, for new leases, if

any, receiver's fees, attorneys' fees and expenses to the fullest extent not prohibited by applicable law, and any court

costs; the remainder shall be applied against the indebtedness hereby secured.

(f)

Mortgagee shall have the right to bring foreclosure proceedings hereunder and whether or not

any order or decree shall have been entered therein and to the fullest extent not prohibited by applicable law, a reasonable

sum shall be allowed for Mortgagee's attorneys' fees and expenses in such proceeding. There shall be included in any

judgment or decree foreclosing this Mortgage and be paid out of any rents, issues and profits or out of the proceeds of

any sale made in pursuance of any such judgment or decree: (i) all costs and expenses of such suit or suits, advertising,

sale and conveyance, including attorneys' fees and expenses to the fullest extent not prohibited by applicable law, costs

of documentary evidence and costs of any abstract, examination oftitle and title insurance; (ii) all moneys advanced by

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Mortgagee, ifany, for any purpose authorized in this Mortgage with interest as herein provided; (iii) all accrued interest
remaining unpaid on the indebtedness hereby secured; and (iv) the principal balance ofthe indebtedness hereby secured. The surplus proceeds, if any, shall be paid to Mortgagor or as the court may direct.

8.

Waiver. Mortgagor shall not, and anyone claiming through or under Mortgagor shall not, set up, claim

or seek to take advantage ofany appraisement, valuation, stay, extension or redemption laws now or hereafter in force, in

order to prevent or hinder the enforcement or foreclosure of this Mortgage, or the final and absolute sale of the

Mortgaged Property, or the final and absolute placing into possession thereof, immediately after such sale, of the

purchaser or purchasers thereof. Mortgagor, for itself and all who may claim through or under it, waive, if and to the

fullest extent not prohibited by applicable law, all benefits and protections under such appraisement, valuation, stay,

extension and redemption laws.

9.

Sale or Transfer. Subject to the Senior Loan, Mortgagor, without the prior written consent of

Mortgagee, shall not effect, suffer or permit any Prohibited Transfer (as defined herein). Any conveyance, sale,

assignment, transfer, lien, pledge, mortgage, security interest or other encumbrance or alienation (or any agreement to do

any of the foregoing) of any of the following properties or interests shall constitute a "Prohibited Transfer":

(i)

The Premises or any part thereof or interest therein;

(ii)

Ifthere shall be any change in control (by way oftransfer or change in the co-trustees ofthe

Mortgagor, the beneficiaries of the Trust, transfers of stock, partnership or member interests or otherwise) in

any trustee, co-trustee, partner, beneficial interest holder, member, manager or shareholder, as applicable, which

directly or indirectly controls the day-to-day operations and management of Mortgagor and/or owns a

controlling interest in Mortgagor;

in each case whether any such conveyance, sale, assignment, transfer, lien, pledge, mortgage, security interest,
encumbrance or alienation is effected directly, indirectly (including the nominee agreement), voluntarily or involuntarily, by operation oflaw or otherwise; provided, however, that the foregoing provisions ofthis Paragraph 9 shall not apply (i) to liens securing the Settlement Amount, (ii) to the lien of current taxes and assessments not in default, or (iii) to any
transfers ofthe Premises, or part thereof, or interest therein, or any beneficial interests, or shares of stock, membership,
partnership or joint venture interests, as the case may be, by or on behalfofan owner thereofwho is deceased or declared judicially incompetent, to such owner's heirs, legatees, devisees, executors, administrators, estate or personal representatives.

10. Non-Waiver. IfMortgagee (a) releases, as aforesaid, any part ofsuch security or any person liable for
any indebtedness secured hereby; (b) grants an extension oftime for any payments ofthe indebtedness secured hereby; (c) takes other or additional security for the payment thereof; (d) accepts partial payments; or (e) otherwise exercises or
waives or fails to exercise any right granted herein, in the Consent Decree, or in any of the other Loan Documents, no such act or omission shall constitute a waiver of any default, or extend or affect the grace period, if any, release Mortgagor, subsequent owners ofthe Mortgaged Property or any part thereof, the Guarantors pursuant to the Guaranty, this Mortgage, or any ofthe other Loan Documents, or preclude Mortgagee from exercising any right, power or privilege
herein granted or intended to be granted for any Event of Default.

11. No Merger ofEstates. There shall be no merger ofthe lien, security interest or other estate or interest
created by this Mortgage with the fee estate in the Mortgaged Property by reason that any such interest created by this Mortgage may be held, directly or indirectly, by or for the account of any person who shall own the fee estate, the
beneficial interest of the Trust, or any other interest in the Mortgaged Property. No such merger shall occur unless and
until all persons at the time having such concurrent interests shall join in a written instrument effecting such merger and such instrument shall be duly recorded.

12. Further Assurances. Upon request ofMortgagee, Mortgagor shall execute, acknowledge and deliver to
Mortgagee, in form satisfactory to Mortgagee, fmancing statements covering as collateral any personal property owned by Mortgagor, which, in the sole opinion of Mortgagee, is essential to the operation of any of the Mortgaged Property, and any supplemental mortgage, security agreement, financing statement, assignment ofleases, rents, income and profits from the Mortgaged Property, affidavit, continuation statement or certification as Mortgagee may request in order to

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protect, preserve, maintain, continue and extend the lien and security interest hereunder or the priority hereof. Mortgagor hereby irrevocably appoints Mortgagee its attorney-in-fact, coupled with an interest, and authorizes, directs and empowers such attorney, at its option, to execute, acknowledge and deliver on behalf of Mortgagor, its successors and assigns, any such documents ifMortgagor shall fail so to do within five (5) days after request by Mortgagee. Mortgagor shall pay to Mortgagee on demand all costs and expenses incurred by Mortgagee in connection with the preparation, execution, recording and filing of any such documents.

13.

Application of Proceeds. All payments made by Mortgagor pursuant to the Consent Decree, this

Mortgage or any of the other Loan Documents shall be applied by Mortgagee to the outstanding balance of the

Settlement Amount.

14.

Senior Loan. (a) Mortgagor has executed and delivered to DTD Grove Partnership (i) that certain note

in the original principal amount of$600,000.00 ("Senior Note"); (ii) that certain first mortgage executed by Mortgagor in

favor ofDTD Grove Partnership, recorded on July 23, 2010, as Document Number 4456185 with the Recorder ofDeeds

of Collier County, Illinois ("Senior Mortgage"); (iii) any and all other Loan documents and amendments thereto

(collectively, the "Senior Loan Documents") (the "Senior Loan"). Mortgagee acknowledges that this Mortgage is junior

and subordinate to the lien of the Senior Mortgage.

(b)

Mortgagor's Covenants with Respect to Senior Instruments;

(i) Mortgagor covenants and agrees to comply with all of the terms and provisions ofthe Senior Note, Senior Mortgage and Senior Loan Documents (collectively, "Senior Instruments").
(ii) Mortgagor shall give Mortgagee a copy of all notices given Mortgagor with respect to any of the Senior Instruments within (5) days after receiving such notice.
(iii) Mortgagor shall not, without the prior written consent of Mortgagee enter into any modification, extension, amendment, agreement or arrangement in connection with any ofthe Senior Note, Senior Mortgage or other Senior Loan Documents.

(c)

Default under Senior Instruments: Lender's Right to Cure. In the event Mortgagor is declared

by the holder ofthe Senior Instruments to be in default with respect to any requirement of any ofthe Senior Instruments,

Mortgagor agrees that said default shall constitute a Default hereunder. Upon the occurrence ofsuch default, in addition

to any other rights or remedies available to Mortgagee, Mortgagee may, but need not, make any payment or perform any

act required to cure or attempt to cure any said default under any to the Senior Instruments in any manner and form

deemed expedient by Mortgagee. Mortgagee shall not be responsible for determining the validity or accuracy of any

claim of default made by the lender under the Senior Instruments and the payment of any sum by lender in curing or

attempting to cure any alleged default or omission shall be presumed conclusively to have been reasonable, justified and

authorized. Mortgagor hereby grants to Mortgagee an irrevocable power to attorney, which power ofattorney is coupled

with and interest, for the term of this Mortgage to cure any default or forfeiture which may occur under the Senior

Mortgage. Mortgagor further agrees to execute a formal and recordable power ofattorney granting such right at any time

during the existence of this Mortgage if requested by Mortgagee

15.

Notices. Any notice, demand, request or other communication which any party hereto may be required

or may desire to give hereunder shall be in writing and shall be deemed to have been properly given (i) ifhand delivered,

or if sent by telecopy, effective upon receipt, or (ii) if delivered by overnight courier service, effective on the day

following delivery to such courier service or (iii) ifmailed by United States registered or certified mail, postage prepaid,

return receipt requested, effective two (2) business days after deposit in the United States mails addressed as follows:

If to Mortgagor:

John R. Burgess 55 Wynston Barrington, IL 60010

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AND

John Burgess International Profit Associates, Inc. 1250 Barclay Boulevard Buffalo Grove, IL 60089

If to Mortgagee:

Jeanne B. Szromba, Esq. Ann M. Henry, Esq. U.S. Equal Employment Opportunity Commission Suite 2000 500 W. Madison Street Chicago, IL 60661

or at such other address or to such other addressee as the party to be served with notice may have furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice.

16. Loan Documents. The term "Loan Documents" as used herein collectively refers to (a) the Consent Decree (b) this Mortgage, (c) the Guaranty, and (d) any and all other documents and/or agreements evidencing, securing or relating to the Settlement Amount.

17. Advances. (a) This Mortgage shall secure the indebtedness of Mortgagor to Mortgagee that is evidenced, permitted or secured by the Loan Documents. All ofsuch indebtedness shall be a lien from the time that this Mortgage is recorded with the Recorder ofthe County in which the Mortgaged Property is located. There shall be no future advances.

{b)

The maximum amount of indebtedness secured by this Mortgage shall not exceed three (3)

times the Loan Amount. The maximum principal amount ofindebtedness secured by this Mortgage shall not exceed TEN

MILLION and No/1 OOths Dollars U.S. ($1 0,000,000.00) pursuant to Florida Statute Section 697.04. In addition, notice

of any future advance should be recorded.

18. Survival and Conflicts. In the event of any inconsistency or conflict between any provisions of the Consent Decree and the other Loan Documents, the provisions of the Consent Decree shall prevail and apply.

19. Anti-Forfeiture. Mortgagor hereby further expressly represents and warrants to Mortgagee that, to the best of Mortgagor's knowledge, there has not been committed by Mortgagor or any other person involved with the Mortgaged Property or Mortgagor any act or omission affording the federal government or any state or local government the right and/or remedy of forfeiture as against the Mortgaged Property or any part thereof or any monies paid in performance of its obligations under the Note or under any of the other Loan Documents, and Mortgagor hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right and/or remedy of forfeiture. In furtherance thereof, Mortgagor hereby agrees to indemnify, defend and hold harmless Mortgagee from and against any loss, damage or other injury, including without limitation, attorneys' fees and expenses, to the fullest extent not prohibited by applicable law, and all other costs and expenses incurred by Mortgagee in preserving its lien, security interest and other rights and interests in the Mortgaged Property and any additional collateral under any of the Loan Documents in any proceeding or other governmental action asserting forfeiture thereof, by reason of, or in any manner resulting from, the breach of the covenants and agreements or the warranties and representations set forth in the preceding sentence. Without limiting the generality ofthe foregoing, the filing offormal charges or the commencement ofproceedings against Mortgagor, Mortgagee, any guarantor, any additional collateral under any ofthe Loan Documents or all or any part of the Mortgaged Property under any federal or state law in respect of which forfeiture of the Mortgaged Property or any part thereofor ofany monies paid in performance ofMortgagor's obligations under the Loan Documents is a potential result shall, at the election of Mortgagee in its absolute discretion, constitute an Event of Default hereunder without notice or opp6rtunity to cure.

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20. Miscellaneous. The Mortgaged Property is located in the State of Florida, and this Mortgage and the rights and indebtedness secured hereby shall, without regard to the place of contract or payment, be construed and enforced according to the laws ofthe State of Florida. Nothing herein contained and no transaction related hereto shall be construed or so operate as to require Mortgagor to do any act contrary to law, and ifany clauses or provisions herein contained operate or would prospectively operate to invalidate this Mortgage, in whole or in part, or any ofMortgagor's obligations hereunder, such clauses and provisions only shall be held void and ofno force or effeCt as though not herein contained, and the remainder ofthis Mortgage shall remain operative and in full force and effect. All ofthe obligations, rights and covenants herein contained shall run with the land, and shall bind and inure to the benefit of Mortgagor, its successors and permitted assigns, and Mortgagee. Whenever used, the singular number shall include the plural and the plural numbers shall include the singular, and the use of any gender shall include all genders, all as the context may reasonably require.
If any provision of this Mortgage is inconsistent with any applicable provision of the Florida Mortgage Foreclosure Law (the "Act"), the provisions ofthe Act shall take precedence over the provisions of this Mortgage, but the Act shall not invalidate or render unenforceable any other provision ofthis Mortgage that can be fairly construed in a manner consistent with the Act. Without in any way limiting any of Mortgagee's rights, remedies, powers and authorities provided in this Mortgage or otherwise, and in addition to all ofsuch rights, remedies, powers and authorities, Mortgagee shall also have all rights, remedies, powers and authorities permitted to the holder of a mortgage under the Act, as the same may be amended from time to time. If any provision ofthis Mortgage shallgrant to Mortgagee any rights, remedies, powers or authorities upon default of Mortgagor which are more limited than what would be vested in Mortgagee under the Act in the absence of said provision, Mortgagee shall have such rights, remedies, powers and authorities that would be otherwise vested in it under the Act. Without limitation, all expenses (including attorneys' fees and costs) incurred by Mortgagee to the extent reimbursable under the law of the State of Florida, whether incurred before or after any judgment offoreclosure, shall be added to the indebtedness secured by this Mortgage and included in the judgment of foreclosure.
21. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY, AND MORTGAGEE BY ITS ACCEPTANCE HEREOF, EACH WAIVE THE RIGHT OF A JURY TRIAL IN EACH AND EVERY ACTION ON THIS MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS, IT BEING ACKNOWLEDGED AND AGREED THAT ANY ISSUES OF FACT IN ANY SUCH ACTION ARE MORE APPROPRIATELY DETERMINED BY THE COURTS; FURTHER, MORTGAGOR HEREBY CONSENTS AND SUBJECTS ITSELF TO THE JURISDICTION OF COURTS OF THE STATE OF FLORIDA AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE VENUE OF SUCH COURTS IN THE COUNTY IN WHICH THE MORTGAGED PROPERTY IS LOCATED.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed and delivered as of the date first above written.
MORTGAGOR:

Attested and Witnessed: By:._ _ _ _ _ _ ___,_ __
Nwme: _______________________

S, AS CO-TRUSTEE OF THE DANA L. REVOCABLE TRUST, DATED JUNE 7, 2006

9 375866.2 Naples

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ACKNOWLEDGMENTS

STATE OF _ _ __

)

) ss

COUNTY OF - - - - -

)

The foregoing instrument was acknowledged before me this _ _ day of March, 2011 by JOHN R. BURGESS, as

\

Co-Trustee of the Dana L. Burgess Revocable Trust and subscribed by [insert name of notary]

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d~eeHefl efat.e DA-nA L. BURGeSS RJ!VOCABLE 'FRUST, DA'FED Jffl~:E 'f, 2666-and in the presence of these ~

w1tnesses:

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(Sigrurture ofNotacy Public- State ofFlorida) (Print, Type, or Stamp Commissioned Name of Notary Public)

~~

10
375866.2 Naples

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EXHIBIT A LEGAL DESCRIPTION

Lot 27 VINEYARDS ARBOR GLEN, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 21, PAGES 39 THROUGH 41, PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.

Common Address:

6652 Glen Harbor Way Naples, Florida 34119

Permanent Index Number:

80640001243

11
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• • Case: 1:01-cv-04427 Document #: 917 Filed: 03/02/11 Page 53 of 53 PageID #:16892
EXHIBITB PERMITTED EXCEPTIONS
(Naples, Florida) 1. Any and all real estate taxes not yet due and payable. 2. Mortgage, dated July 20, 2010 and recorded July 23, 2010 as Document No. 4456185 made by John R. Burgess
and Dana L. Burgess to Dana L. Burgess and John R. Burgess, Co-Trustees ofthe Dana Burgess Revocable Trust Dated June 7, 2006 to DTD Grove Partnership, an Illinois general partnership.
12 375866.2 Naples

Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 1 of 27 PageID #:16893

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• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 2 of 27 PageID #:16894
EXHIBIT 5

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 3 of 27 PageID #:16895
This instrument prepared by and please return to:
LaVon M. Johns, Esq. Pugh, Jones, Johnson & Quandt, P.C. Suite 3400 180 N. LaSalle Chicago, IL 60601
SHORT FORM JUNIOR MORTGAGE AND SECURITY AGREEMENT
THIS SHORT FORM MORTGAGE AND SECURITY AGREEMENT ("Mortgage") made as of March_, 2011, by JOHN BURGESS, CO-TRUSTEE {"Trustee") OF THE DANA BURGESS REVOCABLE TRUST DATED JUNE 7, 2006 (the "Trust"), having its mailing address at 55 Wynston, Barrington, Illinois 60010, in favor of U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("Mortgagee"), having an address at 500 W. Madison, Suite 2000, Chicago, IL 60661.
All capitalized terms not defined herein shall have the meaning ascribed to them in the Consent Decree dated of even date herewith.
WIT N E S S E T H:
WHEREAS, the Trust is the owner in fee simple ofcertain real property (the "Premises") located in the City of Barrington, Lake County, State ofIllinois, as more particularly described on Exhibit A attached, as improved on the date hereof and the Trustee holds the beneficial interest in the Trust. The Trust and the Trustee shall hereinafter be referred collectively as the "Mortgagor";
WHEREAS, pursuant to that certain Consent Decree between and among the Equal Employment Opportunity Commission (as Plaintiff) and Marion Townson, Phyllis Lopez and Rhonda Porter (as Plaintiff Intervenors) and International Profit Associates, Inc. (as Defendant) in that certain matter known as EEOC, eta/. vs. International Profit Associates, Inc., 01 C 4427 in the U.S. District Court for the Northern District ofIllinois Eastern Division (the "Consent Decree"), Trustee has an outstanding indebtedness which shall constitute a settlement amount (the "Settlement") in the amount of FIVE MILLION FIVE HUNDRED THOUSAND AND NO/lOOths DOLLARS U.S. ($5,500,000.00) (the "Settlement Amount"); and
WHEREAS, Trustee is required to execute and deliver this Mortgage as a covenant and condition of the Consent Decree and the Trust has consented to the execution and delivery of this Mortgage.
NOW, THEREFORE, Mortgagor does hereby give, grant, bargain, sell, assign, convey, warrant, mortgage, and pledge to Mortgagee, its successors and assigns, the Premises and all of Mortgagor's estate, right, title and interest including any beneficial interest therein;
TOGETHER with all right, title and interest ofMortgagor, including any after-acquired title or reversion, in and to the ways, easements, streets, alleys, passages, water, water courses, riparian rights, oil, gas and other mineral rights, gaps, gores, r;ights, hereditaments, liberties and privileges thereof, if any, and in any way appertaining to the Premises;
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TOGETHER with all buildings and improvements of every kind and description now or hereafter erected or placed on the Premises including, without limitation, all materials intended for construction, reconstruction, alteration and repair of such improvements now or hereafter erected thereon, all ofwhich materials shall be deemed to be included within the Mortgaged Property (as hereinafter defined) immediately upon the delivery thereofto the Premises, and all fixtures now or hereafter owned by Mortgagor and attached to or contained in and used in connection with the Premises, including, without limitation, all fixtures and appurtenances thereof; it being intended that all the above-described property owned by Mortgagor affixed by Mortgagor on the Premises shall, so far as permitted by law, be deemed to be fixtures and a part of the realty, and security for the indebtedness of Mortgagor to Mortgagee hereinafter described and secured by this Mortgage, and as to the balance ofthe above-described property, this Mortgage is hereby deemed to be as well a security agreement for the purpose of creating hereby a security interest in such property, securing such indebtedness, for the benefit of Mortgagee; all of the property described in this paragraph is hereinafter sometimes collectively called the "Improvements"; and
TOGETHER with all awards and other compensation heretofore or hereafter to be made to the present and all subsequent owners of the Mortgaged Property for any taking by eminent domain, either permanent or temporary (a "Taking"), of all or any part of the Mortgaged Property or any easement or other appurtenance thereof, including severance and consequential damage and change in grade of streets (collectively, "Taking Proceeds"), and any and all refunds ofimpositions or other charges relating to the Mortgaged Property or the indebtedness secured by this Mortgage.
The property described above is hereafter called the "Premises" to the extent that such property is realty. The Premises and the Improvements are hereafter collectively called the "Mortgaged Property."
TO HAVE AND TO HOLD, all and singular, the Mortgaged Property, whethernow owned or held or hereafter acquired by Mortgagor, with the appurtenances thereunto belonging, unto Mortgagee, its successors and assigns, forever. Mortgagor does hereby covenant with Mortgagee, its successors and assigns, that at and until the ensealing of these presents, the Trust is well seized ofthe Premises as a good and indefeasible estate in fee simple and is the sole owner of and has good right to bargain, sell and convey the Mortgaged Property in manner and form as above written; that Trustee holds the beneficial interest in the Trust; that title to the Mortgaged Property is free and clear of all defects, liens and encumbrances except for real estate taxes and assessments not yet due or payable and the matters described on Exhibit B (the "Permitted Exceptions"); and that Mortgagor will warrant and defend the Premises, with the appurtenances thereunto belonging, and the Improvements to Mortgagee, its successors and assigns, forever, against all liens, security interests, encumbrances, defects, claims and demands whatsoever.
Mortgagor has executed and delivered this Mortgage to secure the Payment of all amounts or charges required to be paid by Trustee pursuant to this Mortgage and the Consent Decree;
PROVIDED, HOWEVER, that if Mortgagor or Trustee shall pay or cause to be paid to Mortgagee the amount due under the Consent Decree on or before the date on which the outstanding principal balance is due and payable in full in accordance with the terms ofthe Consent Decree, and in the manner stipulated therein and herein, and if Mortgagor shall have kept, performed and observed all of the covenants and conditions contained in this Mortgage and all of the other Loan Documents, (as defined in Paragraph 16 hereof), then this Mortgage shall cease, determine and be void, but otherwise shall remain in full force and effect.

Mortgagor further covenants and agrees as follows:

1.

Payment of Indebtedness. Mortgagor shall pay promptly the indebtedness described in the Consent

Decree at the time and in the manner provided in the Consent Decree, this Mortgage and any of the other Loan

Documents (as defmed in Paragraph 16 hereof).

2.

Protection Against Charges. Except for the Permitted Exceptions, Mortgagor shall keep the Mortgaged

Property free from liens of every kind, except only for the Senior Loan, the real estate taxes and general and special

assessments which are not yet due and payable, and mortgage taxes, if any, and shall pay, before delinquency and before

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any penalty for non-payment attaches thereto, all taxes, assessments, and other governmental or municipal or public dues, charges, fmes or impositions which are or hereafter may be levied against the Mortgaged Property or any part thereof. Mortgagor shall also pay, in full, under protest or otherwise in the manner provided by law, any tax, assessment, charge, fine or imposition described above which Mortgagor contests in accordance with the provisions of law and this Mortgage.

3.

Insurance and Casualty Damage.

(a)

Mortgagor shall keep, or cause to be kept, all ofthe following insurance policies with respect

to the Mortgaged Property in companies, forms, amounts and coverage satisfactory to Mortgagee, containing waivers of

subrogation and second mortgagee clauses in favor of Mortgagee:

(i)

Insurance against loss or damage by fire and such other hazards, casualties and

contingencies (including, without limitation, so-called all-risk coverages) as Mortgagee reasonably

may require, .in an amount equal to the replacement cost of the Mortgaged Property, with a

replacement cost endorsement and in such amounts so as to avoid the operation of any coinsurance

clause, for such periods and otherwise as Mortgagee reasonably may require from time to time.

(ii) Ifapplicable, insurance against rent loss or abatement ofrent, covering payment of rent and like charges from the Mortgaged Property over a term of not less than twelve (12) months.

(iii) Flood insurance in an amount as Mortgagee may reasonably require ifthe Mortgaged Property is located in a Special Flood Hazard Area (as defined in the National Flood Insurance Act of 1968, as amended).

At Mortgagee's request, Mortgagor shall deliver renewal certificates of all insurance required above, together with written evidence of full payment of the annual premiums therefor at least thirty (30) days prior to the expiration ofthe existing insurance.

(b) Notice. In case ofany material damage or destruction ofthe Mortgaged Property, or any part thereof, or any interest therein or right accruing thereto, Mortgagor shall promptly give Mortgagee written notice generally describing the nature and extent of such damage or destruction which has resulted or which may result therefrom. Mortgagee may appear in any such proceedings and negotiations, and Mortgagor shall promptly deliver to Mortgagee copies ofall notices and pleadings in any such proceedings. Mortgagor will, in good faith, file and prosecute all claims necessary for any award or payment resulting from such damage or destruction. All costs and expenses incurred by Mortgagee in e~ercising its rights under this Paragraph 3 shall constitute indebtedness secured by this Mortgage.

(c)

Application oflnsurance Proceeds. Subject to the Senior Loan and in the event Mortgagor

fails to commence rebuilding of the Premises within ninety (90) days of such casualty, upon occurrence of any loss or

damage to all or any portion of the Mortgaged Property resulting from fire, vandalism, malicious mischief or any other

casualty or physical harm (a "Casualty"), Mortgagee may elect, to collect, retain and apply as a Settlement Amount

prepayment all proceeds (the "Proceeds") of any insurance policies collected or claimed as a result ofthe Casualty after

deduction ofall expenses ofcollection and settlement, including attorney's and adjusters' fees and charges. Any Proceeds

remaining after payment in full ofthe Senior Loan, the Settlement Amount and all other sums due Mortgagee hereunder

shall be paid by Mortgagee to Mortgagor without any allowance for interest thereon.

4.

Maintenance of Improvements.

(a)

None ofthe Improvements shall be structurally or otherwise materially altered, removed or

demolished, and none of the fixtures on, in or about the Premises shall be severed, removed, sold, mortgaged or

otherwise encumbered, without the prior written consent of Mortgagee in each case. Any Improvements which is

demolished or destroyed in whole or in part shall be replaced promptly by similar Improvements ofcomparable quality,

condition and value as those demolished or destroyed, thereupon becoming part ofthe Mortgaged Property free from any

3
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other lien, security interest or encumbrance on or reservation of title to such property. Mortgagor shall not permit, . commit or suffer any waste, impairment or deterioration ofthe Mortgaged Property or any part thereofand shall keep and maintain (or cause to be kept and maintained) the same in good repair and condition. Mortgagor shall make (or cause to be made) all necessary and proper repairs and replacements so that all components ofthe Mortgaged Property will, at all times, be in good condition, fit and proper for the respective purposes for which they were erected or installed.

(b) Mortgagor hereby covenants and agrees to comply with, and to cause all occupants ofall or any portion ofthe Mortgaged Property to comply with, all applicable zoning, building, use and environmental restrictions and all laws, rules, statutes, ordinances, regulations, orders and requirements, including, without limitation, environmental matters and notices of violation of all governmental authorities having jurisdiction over the Mortgaged Property or the maintenance, use and operation thereof, and all applicable restrictions, agreements and requirements, whether or not of record (collectively, "Laws"). Mortgagor hereby agrees to indemnify, defend and hold harmless Mortgagee and its officers, directors, shareholders, employees, agents and partners and their respective heirs, successors and assigns (collectively, "Indemnified Parties") from and against any and all claims, demands, losses, costs, damages, liabilities or expenses incurred or suffered by the Indemnified Parties arising from any failure ofthe Mortgaged Property to comply with Laws, or from any failure ofMortgagor to obtain, maintain or renew, or to have obtained, maintained or renewed, any permit or approval required with respect to the Mortgaged Property.

5.

Title Warranty: Title Evidence. Mortgagor hereby confirms the warranties and representations as to

title to the Mortgaged Property made in the granting clause of this Mortgage.

6.

Default. The following events shall be deemed to be an "Event of Default" hereunder:

(a) Mortgagor or Trustee shall fail to make payment ofthe indebtedness pursuant to the Consent Decree on the date when such payment is due and payable; or

(b)

Any other act or omission described as an Event of Default herein;

Upon any such Event of Default and subject to the Senior Loan, the entire amount ofthe indebtedness hereby secured, shall, at the option ofMortgagee, become immediately due and payable, without execution or other process and without further notice or demand, all ofwhich are hereby expressly waived. Acceleration ofmaturity, once claimed hereunder by Mortgagee, may, at the option of Mortgagee, be rescinded by written acknowledgment to that effect by Mortgagee, but the tender and acceptance ofpartial payments alone shall not in any way affect or rescind such acceleration ofmaturity, nor extend or affect the grace period, if any.

7.

Additional Rights upon Default. Without limiting the generality ofthe foregoing subject to the Senior

Loan, Mortgagee shall have the following additional rights during the continuance of any Event of Default:

(a)

Provided that Trustee fails to commence to rebuild the Premises within ninety (90) days ofa

casualty, Mortgagee shall have the immediate right to collect, as the same become due, any and all unearned insurance

premiums or refunds of insurance premiums, due or to become due, and all proceeds and other benefits to be received

under insurance policies of every nature affecting or covering the Mortgaged Property, any and all refunds of taxes,

assessments and other charges heretofore or hereafter paid on or with respect to the Mortgaged Property, together with all

rents and profits of the Mortgaged Property, all of which have been hereby assigned to Mortgagee. In addition,

Mortgagee shall have the right, but shall not be obligated, without notice or demand, to enter immediately upon and take

possession of the Mortgaged Property, together with all documents, books, records, papers and accounts of Mortgagor

relating to the Mortgaged Property or any portion thereof without further consent or assignment by Mortgagor; to

operate, manage, lease and control the Mortgaged Property, either personally or by its agents; and to use such measures,

legal or equitable, as Mortgagee may deeni proper or necessary to enforce the payment or security ofthe rents, issues and

profits of the Mortgaged Property.

(b) Mortgagor hereby grants full power and authority to Mortgagee as follows: to exercise each and every one of the rights, privileges and powers herein granted at any and all times hereafter, without notice to Mortgagor; to lease the Mortgaged Property, or any part thereof, to Mortgagor or any other person or persons, on such

4 375871.2- Barrington

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terms and for such periods oftime as Mortgagee may deem proper, and the provisions of any lease made by Mortgagee pursuant hereto shall be valid and binding upon Mortgagor, notwithstanding the fact that Mortgagee's right ofpossession may terminate or this Mortgage may be satisfied ofrecord prior to the expiration ofthe term ofsuch lease; and to collect and receive all ofthe rents, issues, profits and all other amounts past due or to become due to Mortgagor and to apply the same in such order ofpriority as Mortgagee may determine to all necessary charges and expenses in connection with the Mortgaged Property, or for interest, principal, whether matured or not, taxes, water charges and assessments, insurance premiums and any advances made by Mortgagee for improvements, alterations or repairs for the account ofMortgagor or on account ofthe indebtedness hereby secured. Neither the taking ofpossession nor the collection ofrents by Mortgagee as described above shall be construed to be an affirmation ofany lease ofthe Mortgaged Property or any part thereof, and Mortgagee or any other purchaser at any foreclosure sale shall have the right to exercise the right to terminate any such lease as though such taking ofpossession and collection ofrents had not occurred, subject, however, to the terms ofany subordination, nondisturbance and attornment agreement which may be in effect from time to time with respect to any part of the Mortgaged Property.

(c)

Without limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee its

attorney-in-fact, coupled with an interest, upon an Event ofDefault, to institute summary proceedings against any lessee

ofthe Mortgaged Property who fails to comply with the provisions ofhis or its lease. If Mortgagor is occupying all or

any part of the Mortgaged Property upon an Event of Default, Mortgagor agrees to either (i) immediately surrender

possession of the Mortgaged Property to Mortgagee and vacate the Mortgaged Property so occupied by Mortgagor, or

(ii) pay a reasonable rental, determined by Mortgagee, for the use thereof, monthly in advance, to Mortgagee, and, in

default of so doing, may be dispossessed by summary proceedings or otherwise.

(d) To the extent permitted by law, Mortgagee is hereby authorized and empowered to sell or cause the Mortgaged Property to be sold at public or private auction, and to convey same by execution and delivery to the purchaser at such sale a good and sufficient deed of conveyance, to retain out ofthe proceeds of such sale the amounts due under the terms ofthis Mortgage and the Consent Decree, the costs and charges ofsuch sale and attorneys' fees and expenses, all to the fullest extent not prohibited by applicable law, and amounts due to any other person asserting a lien or otherwise claiming an interest in the Mortgaged Property and to deliver the surplus moneys, if any, to Mortgagor.

(e)

To the extent permitted by law, Mortgagee shall be entitled to the appointment ofa receiver of

the Mortgaged Property as a matter ofright and without notice, which is hereby expressly waived, with power to collect

the rents, issues and profits of the Mortgaged Property, due and to become due without regard to the value of the

Mortgaged Property and regardless of whether Mortgagee has an adequate remedy at law. Mortgagor, for itself and its

successors and assigns, hereby waives any and all defenses to the application for a receiver as set forth above and hereby

specifically consents to such appointment without notice, but nothing herein contained is to be construed to deprive

Mortgagee ofany other right, remedy or privilege it may now have, or may hereafter obtain, to have a receiver appointed.

From such rents, issues and profits collected by the receiver or by Mortgagee prior to a foreclosure sale, there shall be

deducted the cost of collection thereof, including, without limitation, real estate commissions, if any, for new leases, if

any, receiver's fees, attorneys' fees and expenses to the fullest extent not prohibited by applicable law, and any court

costs; the remainder shall be applied against the indebtedness hereby secured.

(f)

Mortgagee shall have the right to bring foreclosure proceedings hereunder and whether ornot

any order or decree shall have been entered therein and to the fullest extent not prohibited by applicable law, a reasonable

sum shall be allowed for Mortgagee's attorneys' fees and expenses in such proceeding. There shall be included in any

judgment or decree foreclosing this Mortgage and be paid out of any rents, issues and profits or out of the proceeds of

any sale made in pursuance of any such judgment or decree: (i) all costs and expenses ofsuch suit or suits, advertising,

sale and conveyance, including attorneys' fees and expenses to the fullest extent not prohibited by applicable law, costs

of documentary evidence and costs ofany abstract, examination oftitle and title insurance; (ii) all moneys advanced by

Mortgagee, ifany, for any purpose authorized in this Mortgage with interest as herein provided; (iii) all accrued interest

remaining unpaid on the indebtedness hereby secured; and (iv) the principal balance ofthe indebtedness hereby secured.

The surplus proceeds, if any, shall be paid to Mortgagor or as the court may direct.

8.

Waiver. Mortgagor shall not, and anyone claiming through or under Mortgagor shall not, set up, claim

or seek to take advantage ofany appraisement, valuation, stay, extension or redemption laws now or hereafter in force, in

5
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order to prevent or hinder the enforcement or foreclosure of this Mortgage, or the final and absolute sale of the Mortgaged Property, or the final and absolute placing into possession thereof, immediately after such sale, of the purchaser or purchasers thereof. Mortgagor, for itself and all who may claim through or under it, waive, if and to the fullest extent not prohibited by applicable law, all benefits and protections under such appraisement, valuation, stay, extension and redemption laws.

9.

Sale or Transfer. Subject to the Senior Loan, Mortgagor, without the prior written consent of

Mortgagee, shall not effect, suffer or permit any Prohibited Transfer (as defmed herein). Any conveyance, sale,

assignment, transfer, lien, pledge, mortgage, security interest or other encumbrance or alienation (or any agreement to do

any of the foregoing) of any of the following properties or interests shall constitute a "Prohibited Transfer":

(i)

The Premises or any part thereof or interest therein;

(ii) Ifthere shall be any change in control (by way oftransfer or change in the co-trustees ofthe Mortgagor, the beneficiaries ofthe Trust transfer of stock, partnership or member interests or otherwise) in any trustee, co-trustee, partner, beneficial interest holder, member, manager or shareholder, as applicable, which directly or indirectly controls the day-to-day operations and management of Mortgagor and/or owns a controlling interest in Mortgagor;

in each case whether any such conveyance, sale, assignment, transfer, lien, pledge, mortgage, security interest, encumbrance or alienation is effected directly, indirectly (including the nominee agreement), voluntarily or involuntarily, by operation oflaw or otherwise; provided, however, that the foregoing provisions ofthis Paragraph 9 shall not apply (i) to liens securing the Settlement Amount, (ii) to the lien of current taxes and assessments not in default, or (iii) to any transfers ofthe Premises, or part thereof, or interest therein, or any beneficial interests, or shares of stock, membership, partnership orjoint venture interests, as the case may be; by or on behalfofan owner thereofwho is deceased or declared judicially incompetent, to such owner's heirs, legatees, devisees, executors, administrators, estate or personal representatives.

10. Non-Waiver. IfMortgagee (a) releases, as aforesaid, any part ofsuch security or any person liable for any indebtedness secured hereby; (b) grants an extension oftime for any payments ofthe indebtedness secured hereby; (c) takes other or additional security for the payment thereof; (d) accepts partial payments; or (e) otherwise exercises or waives or fails to exercise any right granted herein, in the Consent Decree, or in any of the other Loan Documents, no such act or omission shall constitute a waiver of any default, or extend or affect the grace period, if any, release Mortgagor, subsequent owners of the Mortgaged Property or any part thereof, or the Guarantors pursuant to the Guaranty, this Mortgage, or any ofthe other Loan Documents, or preclude Mortgagee from exercising any right, power or privilege herein granted or intended to be granted for any Event of Default.

11. No Merger ofEstates. There shall be no merger ofthe lien, security interest or other estate or interest created by this Mortgage with the fee estate in the Mortgaged Property by reason that any such interest created by this Mortgage may be held, directly or indirectly, by or for the account of any person who shall own the fee estate or any other interest in the Mortgaged Property. No such merger shall occur unless and until all persons at the time having such concurrent interests shall join in a written instrument effecting such merger and such instrument shall be duly recorded.

12. Further Assurances. Upon request ofMortgagee, Mortgagor shall execute, acknowledge and deliver to Mortgagee, in form satisfactory to Mortgagee, fmancing statements. covering as collateral any personal property owned by Mortgagor, which, in the sole opinion of Mortgagee, is essential to the operation of any of the Mortgaged Property, and any supplemental mortgage, security agreement, financing statement, assignment ofleases, rents, income and profits from the Mortgaged Property, affidavit, continuation statement or certification as Mortgagee may request in order to protect, preserve, maintain, continue and extend the lien and security interest hereunder or the priority hereof. Mortgagor hereby irrevocably appoints Mortgagee its attorney-in-fact, coupled with an interest, and authorizes, directs and empowers such attorney, at its option, to execute, acknowledge and deliver on behalf of Mortgagor, its successors and assigns, any such documents if Mortgagor shall fail so to do within five (5) days after request by Mortgagee. Mortgagor shall pay to Mortgagee on demand all costs and expenses incurred by Mortgagee in connection with the "preparation, execution, recording and filing of any such documents.

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13. Application of Proceeds. All payments made by Mortgagor pursuant to the Consent Decree, this Mortgage or any of the other Loan Documents shall be applied by Mortgagee to the outstanding balance of the Settlement Amount.

14. Senior Loan. (a) Mortgagor has executed and delivered to Fifth Third Bank and its affiliates. (i) those certain notes in the original principal amounts of$785,000.00 and $986,000.00 respectively (collectively, the "Senior Notes"); (ii) those certain first mortgages executed by Mortgagor in favor of Fifth Third Bank and its affiliates, recorded on November 20, 2008 and April 16, 2010 respectively, as Document Numbers 0006411813 and 0006594552 respectively with the Recorder ofDeeds ofLake County, Illinois (collectively, the "Senior Mortgages"); (iii) any and all other Loan documents and amendments hereto (collectively, the "Senior Loan Documents"). Mortgagee acknowledges that this Mortgage is junior and subordinate to the lien of the Senior Mortgages.

(b)

Mortgagor Covenants with Respect to Senior Instruments.

(i) Mortgagor covenants and agrees to comply with all of the terms and provisions of the Senior Notes, Senior Mortgages and Senior Loan Documents (collectively, "Senior Instruments").

(ii) Mortgagor shall give Mortgagee a copy of all notices given Mortgagor with respect to any of the Senior Instruments within five (5) days after receiving such notice.

(iii) Mortgagor shall not, without the prior written consent of Mortgagee enter into any modification, extension, amendment, agreement or arrangement in connection with any ofthe Senior Notes, Senior Mortgages or other Senior Loan Documents.

(c)

Default under Senior Instruments: Lender's Right to Cure. In the event Mortgagor is declared

by the holder ofthe Senior Instruments to be in default with respect to any requirement ofany ofthe Senior Instruments,

Mortgagor agrees that said default shall constitute a Default hereunder. Upon the occurrence ofsuch default, in addition

to any other rights or remedies available to Mortgagee, Mortgagee may, but need not, make any payment or perform any

act required to cure or attempt to cure any said default under any of the Senior Instruments in any manner and form

deemed expedient by Mortgagee. Mortgagee shall not be responsible for determining the validity or accuracy of any

claim of default made by the lender under the Senior Instruments and the payment of any sum by lender in curing or

attempting to cure any alleged default or omission shall be presumed conclusively to have been reasonable, justified and

authorized. Mortgagor hereby grants to Mortgagee an irrevocable power to attorney, which power ofattorney is coupled

with an interest, for the term of this Mortgage to cure any default or forfeiture which may occur under the Senior

Mortgages. Mortgagor further agrees to execute a formal and recordable power of attorney granting such right at any

time during the existence of this Mortgage if requested by Mortgagee.

15. Notices. Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed to have been properly given (i) ifhand delivered, or if sent by telecopy, effective upon receipt, or (ii) if delivered by overnight courier service, effective on the day following delivery to such courier service or (iii) ifmailed by United States registered or certified mail, postage prepaid, return receipt requested, effective two (2) business days after deposit in the United States mails addressed as follows:

If to Mortgagor: John R. Burgess 55 Wynston Barrington, IL 60010 AND
7
375871.2 - Barrington

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 10 of 27 PageID #:16902
John Burgess International Profit Associates, Inc. 1250 Barclay Boulevard Buffalo Grove, IL 60089
If to Mortgagee:
Jeanne B. Szromba, Esq. Ann M. Henry, Esq. U.S. Equal Employment Opportunity Commission Suite 2000 500 W. Madison Street Chicago, IL 60661
or at such other address or to such other addressee as the party to be served with notice may have furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice.
16. Loan Documents. The term "Loan Documents" as used herein collectively refers to (a) the Consent Decree (b) this Mortgage, (c) the Guaranty, and (d) any and all other documents and/or agreements evidencing, securing or relating to the Settlement Amount.
17. Advances. (a) This Mortgage shall secure the indebtedness of Mortgagor to Mortgagee that is evidenced, permitted or secured by the Loan Documents. All of such indebtedness shall be a lien from the time that this Mortgage is recorded with the Recorder ofthe County in which the Mortgaged Property is located. There shall be no future advances.
(b) The maximum amount ofindebtedness secured by this Mortgage shall not exceed three (3) times the Loan Amount.
18. Survival and Conflicts. In the event of any inconsistency or conflict between any provisions of the Consent Decree and the other Loan Documents, the provisions of the Consent Decree shall prevail and apply.
19. Anti-Forfeiture. Mortgagor hereby further expressly represents and warrants to Mortgagee that, to the best of Mortgagor's knowledge, there has not been committed by Mortgagor or any other person involved with the Mortgaged Property or Mortgagor any act or omission affording the federal government or any state or local government ·the right and/or remedy of forfeiture as against the Mortgaged Property or any part thereof or any monies paid in performance of its obligations under the Note or under any of the other Loan Documents, and Mortgagor hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right and/or remedy of forfeiture. In furtherance thereof, Mortgagor hereby agrees to indemnify, defend and hold harmless Mortgagee from and against any loss, damage or other injury, including without limitation, attorneys' fees and expenses, to the fullest extent not prohibited by applicable law, and all other costs and expenses incurred by Mortgagee in preserving its lien, security interest and other rights and interests in the Mortgaged Property and any additional collateral under any of the Loan Documents in any proceeding or other governmental action asserting forfeiture thereof, by reason of, or in any manner resulting from, the breach of the covenants and agreements or the warranties and representations set forth in the preceding sentence. Without limiting the generality ofthe foregoing, the filing offormal charges or the commencement ofproceedings against Mortgagor, Mortgagee, any guarantor, any additional collateral under any ofthe Loan Documents or all or any part of the Mortgaged Property under any federal or state law in respect of which forfeiture. of the Mortgaged Property or any part thereofor ofany monies paid in performance ofMortgagor's obligations under the Loan Documents is a potential result shall, at the election of Mortgagee in its absolute discretion, constitute an Event of Default hereunder without notice or opportunity to cure.
20. Miscellaneous. The Mortgaged Property is located in the State"oflllinois, and this Mortgage and the rights and indebtedness secured hereby shall, without regard to the place of contract or payment, be construed and
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enforced according to the laws ofthe State of Illinois. Nothing herein contained and no transaction related hereto shall be construed or so operate as to require Mortgagor to do any act contrary to law, and if any clauses or provisions herein contained operate or would prospectively operate to invalidate this Mortgage, in whole or in part, or any ofMortgagor's obligations hereunder, such clauses and provisions only shall be held void and ofno force or effect as though not herein contained, and the remainder ofthis Mortgage shall remain operative and in full force and effect. All ofthe obligations, rights and covenants herein contained shall run with the land, and shall bind and inure to the benefit of Mortgagor, its successors and permitted assigns, and Mortgagee. Whenever used, the singular number shall include the plural and the plural numbers.shall include the singular, and the use of any gender shall include all genders, all as the context may reasonably require.
If any provision of this Mortgage is inconsistent with any applicable provision of the Illinois Mortgage Foreclosure Law (the "Act"), the provisions of the Act shall take precedence over the provisions ofthis Mortgage, but the Act shall not invalidate or render unenforceable any other provision ofthis Mortgage that can be fairly construed in a manner consistent with the Act. Without in any way limiting any of Mortgagee's rights, remedies, powers and authorities provided in this Mortgage or otherwise, and in addition to all ofsuch rights, remedies, powers and authorities, Mortgagee shall also have all rights, remedies, powers and authorities permitted to the holder of a mortgage under the Act, as the same may be amended from time to time. If any provision of this Mortgage shall grant to Mortgagee any rights, remedies, powers or authorities upon default of Mortgagor which are more limited than what would be vested in Mortgagee under the Act in the absence of said provision, Mortgagee shall have such rights, remedies, powers and authorities that would be otherwise vested in it under the Act. Without limitation, all expenses (including attorneys' fees and costs) incurred by Mortgagee to the extent reimbursable under the law of the State of Illinois, whether incurred before or after any judgment offoreclosure, shall be added to the indebtedness secured by this Mortgage and included in the judgment of foreclosure.
21. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY, AND MORTGAGEE BY ITS ACCEPTANCE HEREOF, EACH WAIVE THE RIGHT OF A JURY TRIAL IN EACH AND EVERY ACTION ON THIS MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS, IT BEING ACKNOWLEDGED AND AGREED THAT ANY ISSUES OF FACT IN ANY SUCH ACTION ARE MORE APPROPRIATELY DETERMINED BY THE COURTS; FURTHER, MORTGAGOR HEREBY CONSENTS AND SUBJECTS ITSELF TO THE JURISDICTION OF COURTS OF THE STATE OF ILLINOIS AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE VENUE OF SUCH COURTS IN THE COUNTY IN WHICH THE MORTGAGED PROPERTY IS LOCATED.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed and delivered as of the date first above written.
MORTGAGOR:

Attested and Witnessed: By:_ _ _ _ _ _ _ _ _ __
Name: ----------------------

S CO-TRUSTEE OF THE DANA L. BURGESS REVOCABLE TRUST, DATED JUNE 7, 2006

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ACKNOWLEDGMENTS
STATE OFILLINOIS
ss.
COUNTY OF COOK I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that JOHN R. BURGESS, personally known to me to be the CO-TRUSTEE OF THE DANA L. BURGESS REVOCABLE TRUST, DATED JUNE 7, 2006 and known to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such Co-Trustee, he signed and delivered the said instrument as Co-Trustee of said Revocable Trust p!a:immt to autbot:ity giYSR B:Y tlte aforesaid -+Rtst-as his free and voluntary act and as the free and voluntary act and deed of said Trust, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this _ _ day of March, 2011.
Notary Public My Commission Expires:
10 375871.2- Barrington

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EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1: LOT 45-H IN WYNSTONE, BEING A SUBDIVISION OF PART OF THE SOUTHWEST \4 OF SECTION 6, TOWNSHIP 43 NORTH, RANGE 10, EAST OF THE THIRD PRINCIPAL MERIDIAN; PART OF THE WEST Y2 OF SECTION 7, TOWNSHIP 43 NORTH, RANGE 10, EAST OF THE THIRD PRINCIPAL MERIDIAN; PART OF SECTION 12, TOWNSHIJ,l43 NORTH, RANGE 9, EAST OF THE THIRD PRlNCIPAL MERIDIAN; AND ALSO THE SOUTH EAST \4 OF THE SOUTH EAST \4 OF SECTION 1, TOWNSHIP 43 NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED DECEMBER 17, 1987 AS DOCUMENT 2641114, AND CORRECTED BY CERTIFICATE OF CORRECTION RECORDED JANUARY 4, 1988 AS DOCUMENT 2645684, AND CORRECTED BY CERTIFICATE OF CORRECTION RECORDED JANUARY 19, 1988 AS DOCUMENT 2649586, AND FURTHER CORRECTED BY CERTIFICATE OF AMENDMENT RECORDED JUNE 27, 1988 AS DOCUMENT 2695215, IN LAKE COUNTY, ILLINOIS.
PARCEL 2: EASEMENT OF INGRESS AND EGRESS OVER THE PRIVATE ROADS FOR THE BENEFIT OF PARCEL 1 AS SHOWN ON THE PLAT OF WYNSTONE RECORDED 2641114, AND AS CREATED BY INSTRUMENT RECORDED DECEMBER 17,1987 AS DOCUMENT 2641113.

Common Address: Permanent Index Number:

55 Wynston, Barrington, IL 60010 13-12-301-042-0000

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EXHIBIT B

PERMITTED EXCEPTIONS (Barrington, Illinois)

1.

Any and all real estate taxes not yet due and payable.

2.

Mortgage, dated October 30, 2008 and recorded November 20, 2008 as Document No. 0006411813 made

by Dana Burgess and John Burgess, Co-Trustees of the Dana Burgess Revocable Trust Dated June 7, 2006

in favor of Fifth Third Bank;

3.

Mortgage, dated AprilS, 2010 and recorded on April16, 2010 as Document No. 0006594552 made by Dana

Burgess and John Burgess, Co-Trustees of the Dana Burgess Revocable Trust Dated June 7, 2006 in favor of

Fifth Third Company;

4.

Subordination Agreement, dated April 7, 2010 and recorded April16, 2010 as Document No. 0006594553.

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EXHIBIT 6

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 16 of 27 PageID #:16908

This instrument prepared by and please return to:
LaVon M. Johns, Esq. Pugh, Jones, Johnson & Quandt, P.C. Suite 3400 180 N. LaSalle Chicago, IL 60601

SHORT FORM JUNIOR MORTGAGE AND SECURITY AGREEMENT

THIS SHORT FORM JUNIOR MORTGAGE AND SECURITY AGREEMENT ("Mortgage") made as of March_, 2011, by JOHN BURGESS, CO-TRUSTEE ("Trustee") OF THE DANA BURGESS REVOCABLE TRUST DATED JUNE 7, 2006 (the "Trust"), having its mailing address at 55 Wynston, Barrington, Illinois 60010, in favor of U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("Mortgagee"), having an address at 500 W. Madison, Suite 2000, Chicago, IL 60661.

All capitalized terms not defined herein shall have the meaning ascribed to them in the Consent Decree dated of even

date herewith.

·

W I TN E S S E T H:

WHEREAS, the Trust is the owner in fee simple ofcertain real property (the "Premises") located in the City of Grayslake, Lake County, State ofIllinois, as more particularly described on Exhibit A attached, as improved on the date hereofand the Trustee holds the beneficial interest in the Trust. The Trust and the Trustee shall hereinafter be referred to collectively as the "Mortgagor";

WHEREAS, pursuant to that certain Consent Decree between and among the Equal Employment Opportunity Commission (as Plaintiff) and Marion Townson, Phyllis Lopez and Rhonda Porter (as Plaintiff Intervenors) and International Profit Associates, Inc. (as Defendant) in that certain matter known as EEOC, eta/. vs. International Profit Associates, Inc., No. 01 C 4427 in the U.S. District Court for the Northern District of Illinois Eastern Division (the "Consent Decree"), Trustee has an outstanding indebtedness which shall constitute a settlement amount (the "Settlement") in the amount of FIVE MILLION FIVE HUNDRED THOUSAND AND N0/100ths DOLLARS U.S. ($5,500,000.00) (the "Settlement Amount"); and

WHEREAS, Trustee is required to execute and deliver this Mortgage as a covenant and condition of the Consent Decree and the Trust has consented to the execution and delivery of this Mortgage.

NOW, THEREFORE, Mortgagor does hereby give, grant, bargain, sell, assign, convey, warrant, mortgage, and pledge to Mortgagee, its successors and assigns, the Premises and all ofMortgagor's and Trustee's estate, right, title and interest, including any beneficial interest, therein;

TOGETHER with all right, title and interest of Mortgagor, including any after-acquired title or reversion, in and to the ways, easements, streets, alleys, passages, water, water courses, riparian rights, oil, gas and other mineral rights, gaps, gores, rights, hereditaments, liberties and privileges thereof, if any, and in any way appertaining to the Premises;

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TOGETHER with all buildings and improvements of every kind and description now or hereafter erected or placed on the Premises including, without limitation, all materials intended for construction, reconstruction, alteration and repair ofsuch improvements now or hereafter erected thereon, all ofwhich materials shall be deemed to be included within the Mortgaged Property (as hereinafter defined) immediately upon the delivery thereof to the Premises, and all fixtures now or hereafter owned by Mortgagor and attached to or contained in and used in connection with the Premises, including, without limitation, all fixtures and appurtenances thereof; it being intended that all the above-described property owned by Mortgagor and affixed by Mortgagor on the Premises shall, so far as permitted by law, be deemed to be fixtures and a part of the realty, and security for the indebtedness of Mortgagor to Mortgagee hereinafter described and secured by this Mortgage, and as to the balance ofthe above-described property, this Mortgage is hereby deemed to be as well a security agreement for the purpose of creating hereby a security interest in such property, securing such indebtedness, for the benefit of Mortgagee; all of the property described in this paragraph is hereinafter sometimes collectively called the "Improvements"; and

TOGETHER with all awards and other compensation heretofore or hereafter to be made to the present and all subsequent owners of the Mortgaged Property for any taking by eminent domain, either permanent or temporary (a "Taking"), of all or any part of the Mortgaged Property or any easement or other appurtenance thereof, including severance and consequential damage and change in grade of streets (collectively, "Taking Proceeds"), and any and all refunds ofimpositions or other charges relating to the Mortgaged Property or the indebtedness secured by this Mortgage.

The property described above is hereafter called the "Premises" to the extent that such property is realty. The Premises and the Improvements are hereafter collectively called the "Mortgaged Property."

TO HAVE AND TO HOLD, all and singular, the Mortgaged Property, whether now owned or held or hereafter acquired by Mortgagor, with the appurtenances thereunto belonging, unto Mortgagee, its successors and assigns, forever. Mortgagor does hereby covenant with Mortgagee, its successors and assigns, that at and until the ensealing of these presents, the Trust is well seized ofthe Premises as a good and indefeasible estate in fee simple and is the sole owner of, and has good right to bargain, sell and convey the Mortgaged Property in manner and form as above written; that Trustee holds the beneficial interest in the Trust; that title to the Mortgaged Property is free and clear of all defects, liens and encumbrances except for real estate taxes and assessments not yet due or payable and the matters described on Exhibit B (the "Permitted Exceptions"); and that Mortgagor will warrant and defend the Premises, with the appurtenances thereunto belonging, and the Improvements to Mortgagee, its successors and assigns, forever, against all liens, security interests, encumbrances, defects, claims and demands whatsoever.

Mortgagor has executed and delivered this Mortgage to secure the Payment ofall amounts or charges required to be paid by Trustee pursuant to this Mortgage and the Consent Decree;

PROVIDED, HOWEVER, that if Mortgagor or Trustee shall pay or cause to be paid to Mortgagee the amount due under the Consent Decree on or before the date on which the outstanding principal balance is due and payable in full in accordance with the terms ofthe Consent Decree, and in the manner stipulated therein and herein, and if Mortgagor shall have kept, performed and observed all of the covenants and conditions contained in this Mortgage and all ofthe other Loan Documents (as defined in Paragraph 16 hereof), then this Mortgage shall cease, determine and be void, but otherwise shall remain in full force and effect.

Mortgagor further covenants and agrees as follows:

1.

Payment oflndebtedness. Mortgagor shall pay promptly the indebtedness described in the Consent

Decree at the time and in the manner provided in the Consent Decree, this Mortgage and any of the other Loan

Documents (as defined in Paragraph 16 hereof).

2.

Protection Against Charges. Except for the Permitted Exceptions, Mortgagor shall keep the Mortgaged

Property free from liens of every kind, except only for the Senior Loan, the real estate taxes and general and special

assessments which are not yet due and payable, andmortgage taxes, ifany, and shall pay, before delinquency and before

any penalty for non-payment attaches thereto, all taxes, assessments, and other governmental or municipal or public dues,

charges, fines or impositions which are or hereafter may be levied against the Mortgaged Property or any part thereof.

Mortgagor shall also pay, in full, under protest or otherwise in the manner provided by law, any tax, assessment, charge,

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fme or imposition described above which Mortgagor contests in accordance with the provisions of law and this Mortgage.

3.

Insurance and Casualtv Damage.

(a)

Mortgagor shall keep, or cause to be kept, all ofthe following insurance policies with respect

to the Mortgaged Property in companies, forms, amounts and coverage satisfactory to Mortgagee, containing waivers of

subrogation and second mortgagee clauses in favor of Mortgagee:

(i)

Insurance against loss or damage by fire and such other hazards, casualties and

contingencies (including, without limitation, so-called all-risk coverages) as Mortgagee reasonably

may require, in an amount equal to the replacement cost of the Mortgaged Property, with a

replacement cost endorsement and in such amounts so as to avoid the operation of any coinsurance

clause, for such periods and otherwise as Mortgagee reasonably may require from time to time.

(ii) Ifapplicable, insurance against rent loss or abatement ofrent, covering payment of rent and like charges from the Mortgaged Property over a term of not less than twelve (12) months.

(iii) Flood insurance in an amount as Mortgagee may reasonably require ifthe Mortgaged Property is located in a Special Flood Hazard Area (as defmed in the National Flood Insurance Actof 1968, as amended).

At Mortgagee's request, Mortgagor shall deliver renewal certificates of all insurance required above, together with written evidence of full payment of the annual premiums therefor at least thirty (30) days prior to the expiration ofthe existing insurance.

(b) Notice. In case ofany material damage or destruction ofthe Mortgaged Property, or any part thereof, or any interest therein or right accruing thereto, Mortgagor shall promptly give Mortgagee written notice generally describing the nature and extent of such damage or destruction which has resulted or which may result therefrom. Mortgagee may appear in any such proceedings and negotiations, and Mortgagor shall promptly deliver to Mortgagee copies ofall notices and pleadings in any such proceedings. Mortgagor will, in good faith, file and prosecute all claims necessary for any award or payment resulting from such damage or destruction. All costs and expenses incurred by Mortgagee in exercising its rights under this Paragraph 3 shall constitute indebtedness secured by this Mortgage.

(c)

Aoolication oflnsurance Proceeds. Subject to the Senior Loan and in the event Mortgagor

fails to commence rebuilding ofthe Premises within ninety (90) days ofsuch casualty, upon the occurrence ofany loss or

damage to all or any portion of the Mortgaged Property resulting from fire, vandalism, malicious mischiefor any other

casualty or physical harm (a "Casualty"), Mortgagee may elect, to collect, retain and apply as a Settlement Amount

prepayment all proceeds (the "Proceeds") of any insurance policies collected or claimed as a result ofthe Casualty after

deduction ofall expenses ofcollection and settlement, including attorney's and adjusters' fees and charges. Any Proceeds

remaining after payment in full of the Senior Loan, the Settlement Amount and all other sums due Mortgagee hereunder

shall be paid by Mortgagee to Mortgagor without any allowance for interest thereon.

4.

Maintenance of Improvements.

(a)

None of the Improvements shall be structurally or otherwise materially altered, removed or

demolished, and none of the fixtures on, in or about the Premises shall be severed, removed, sold, mortgaged or

otherwise encumbered, without the prior written consent of Mortgagee in each case. Any Improvements which are

demolished or destroyed in whole or in part shall be replaced promptly by similar Improvements and Collateral of

comparable quality, condition and value as those demolished or destroyed, thereupon becoming part ofthe Mortgaged

Property free from any other lien, security interest or encumbrance on or reservation oftitle to such property. Mortgagor

shall not permit, commit or suffer any waste, impairment or deterioration ofthe Mortgaged Property or any part thereof

and shall keep and maintain (or cause to be kept and maintained) the same in good repair and condition. Mortgagor shall

make (or cause to be made).all necessary and proper repairs and replacements so that all components ofthe Mortgaged

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Property will, at all times, be in good condition, fit and proper for the respective purposes for which they were erected or installed.

(b)

Mortgagor hereby covenants and agrees to comply with, and to cause all occupants of all or

any portion ofthe Mortgaged Property to comply with, all applicable zoning, building, use and environmental restrictions

and all laws, rules, statutes, ordinances, regulations, orders and requirements, including, without limitation,

environmental matters and notices of violation of all governmental authorities having jurisdiction over the Mortgaged

Property or the maintenance, use and operation thereof, and all applicable restrictions, agreements and requirements,

whether or not of record (collectively, "Laws"). Mortgagor hereby agrees to indemnify, defend and hold harmless

Mortgagee and its officers, directors, shareholders, employees, agents and partners and their respective heirs, successors

and assigns (collectively, "Indemnified Parties") from and against any and all claims, demands, losses, costs, damages,

liabilities or expenses incurred or suffered by the Indemnified Parties arising from any failure ofthe Mortgaged Property

to comply with Laws, or from any failure of Mortgagor to obtain, maintain or renew, or to have obtained, maintained or

renewed, any permit or approval required with respect to the Mortgaged Property.

5.

Title Warranty; Title Evidence. Mortgagor hereby confirms the warranties and representations as to

title to the Mortgaged Property made in the granting clause of this Mortgage.

6.

Default. The following events shall be deemed to be an "Event of Default" hereunder:

(a)

Mortgagor or Trustee shall fail to make payment of the Settlement Amount pursuant to the

Consent Decree on the date when such payment is due and payable; or

(b)

Any other act described as an Event of Default herein.

Upon any such Event of Default and subject to the Senior Loan, the entire amount of the indebtedness hereby secured, shall, at the option of Mortgagee, become immediately due and payable, without execution or other process and without further notice or demand, all ofwhich are hereby expressly waived. Acceleration ofmaturity, once claimed hereunder by Mortgagee, may, at the option of Mortgagee, be rescinded by written acknowledgment to that effect by Mortgagee, but the tender and acceptance ofpartial payments alone shall not in any way affect or rescind such acceleration of maturity, nor extend or affect the grace period, if any.

7.

Additional Rights upon Default. Without limiting the generality ofthe foregoing, subject to the Senior

Loan, Mortgagee shall have the following additional rights during the continuance of any Event of Default:

(a)

Provided that Trustee fails to commence to rebuild the Premises within ninety (90) days of a

casualty, Mortgagee shall have the immediate right to collect, as the same become due, any and all unearned insurance

premiums or refunds of insurance premiums, due or to become due, and all proceeds and other benefits to be received

under insurance policies of every nature affecting or covering the Mortgaged Property, any and all refunds of taxes,

assessments and other charges heretofore or hereafter paid on or with respect to the Mortgaged Property, together with all

rents and profits of the Mortgaged Property, all of which have been hereby assigned to Mortgagee. In addition,

Mortgagee shall have the right, but shall not be obligated, without notice or demand, to enter immediately upon and take

possession ofthe Mortgaged Property, together with all documents, books, records, papers and accounts of Mortgagor

relating to the Mortgaged Property or any portion thereof without further consent or assignment by Mortgagor; to

operate, manage, lease and control the Mortgaged Property either personally or by its agents; and to use such measures,

legal or equitable, as Mortgagee may deem proper or necessary to enforce the payment or security ofthe rents, issues and

profits of the Mortgaged Property.

(b)

Mortgagor hereby grants full power and authority to Mortgagee as follows: to exercise each

and every one of the rights, privileges and powers herein granted at any and all times hereafter, without notice to

Mortgagor; to lease the Mortgaged Property, or any part thereof, to Mortgagor or any other person or persons, on such

terms and for such periods of time as Mortgagee may deem proper, and the provisions of any lease made by Mortgagee

pursuant hereto shall be valid and binding upon Mortgagor, notwithstanding the fact that Mortgagee's right ofpossession

may terminate or this Mortgage may be satisfied ofrecord prior to the expiration ofthe term ofsuch lease; and to collect

and receive all ofthe rents, issues, profits and all other amounts past due or to become due to Mortgagor and to apply the

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• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 20 of 27 PageID #:16912

same in such order ofpriority as Mortgagee may determine to all necessary charges and expenses in connection with the Mortgaged Property, or for interest, principal, whether matured or not, taxes, water charges and assessments, insurance premiums and any advances made by Mortgagee for improvements, alterations or repairs for the account ofMortgagor or
on account ofthe indebtedness hereby secured. Neither the taking ofpossession nor the collection ofrents by Mortgagee as described above shall be construed to be an affirmation ofany lease ofthe Mortgaged Property or any part thereof, and Mortgagee or any other purchaser at any foreclosure sale shall have the right to exercise the right to terminate any such
lease as though such taking ofpossession and collection ofrents had not occurred, subject, however, to the terms ofany
subordination, nondisturbance and attornment agreement which may be in effect from time to time with respect to any part of the Mortgaged Property.

(c)

Without limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee its

attorney-in-fact, coupled with an interest, upon an Event ofDefault, to institute summary proceedings against any lessee

of the Mortgaged Property who fails to comply with the provisions ofhis or its lease. If Mortgagor is occupying all or

any part of the Mortgaged Property upon an Event of Default, Mortgagor agrees to either (i) imniediately surrender

possession ofthe Mortgaged Property to Mortgagee and vacate the Mortgaged Property so occupied by Mortgagor, or

(ii) pay a reasonable rental, determined by Mortgagee, for the use thereof, monthly in advance, to Mortgagee, and, in

default of so doing, may be dispossessed by summary proceedings or otherwise.

(d)

To the extent permitted by law, Mortgagee is hereby authorized and empowered to sell or

cause the Mortgaged Property to be sold at public or private auction, and to convey same by execution and delivery to the

purchaser at such sale a good and sufficient deed ofconveyance, to retain out ofthe proceeds of such sale the amounts

due under the terms ofthis Mortgage and the Consent Decree, the costs and charges ofsuch sale and attorneys' fees and

expenses, all to the fullest extent not prohibited by applicable law, and amounts due to any other person asserting a lien

or otherwise claiming an interest in the Mortgaged Property and to deliver the surplus moneys, if any, to Mortgagor.

(e)

To the extent permitted by law, Mortgagee shall be entitled to the appointment ofa receiver of

the Mortgaged Property as a matter ofright and without notice, which is hereby expressly waived, with power to collect

the rents, issues and profits of the Mortgaged Property, due and to become due without regard to the value of the

Mortgaged Property and regardless of whether Mortgagee has.an adequate remedy at law. Mortgagor, for itself and its

successors and assigns, hereby waives any and all defenses to the application for a receiver as set forth above and hereby

specifically consents to such appointment without notice, but nothing herein contained is to be construed to deprive

Mortgagee ofany other right, remedy or privilege it may now have, or may hereafter obtain, to have a receiver appointed.

From such rents, issues and profits collected by the receiver or by Mortgagee prior to a foreclosure sale, there shall be

deducted the cost ofcollection thereof, including, without limitation, real estate commissions, ifany, for new leases, if

any, receiver's fees, attorneys' fees and expenses to the fullest extent not prohibited by applicable law, and any court

costs; the remainder shall be applied against the indebtedness hereby secured.

(f)

Mortgagee shall have the right to bring foreclosure proceedings hereunder and whether or not

any order or decree shall have been entered therein and to the fullest extent not prohibited by applicable law, a reasonable

sum shall be allowed for Mortgagee's attorneys' fees and expenses in such proceeding. There shall be included in any

judgment or decree foreclosing this Mortgage and be paid out ofany rents, issues and profits or out of the proceeds of

any sale made in pursuance of any such judgment or decree: (i) all costs and expenses ofsuch suit or suits, advertising,

sale and conveyance, including attorneys' fees and expenses to the fullest extent not prohibited by applicable law, costs

of documentary evidence and costs ofany abstract, examination oftitle and title insurance; (ii} all moneys advanced by

Mortgagee, if any, for any purpose authorized in this Mortgage with interest as herein provided; (iii) all accrued interest

remaining unpaid on the indebtedness hereby secured; and (iv) the principal balance ofthe indebtedness hereby secured.

The surplus proceeds, if any, shall be paid to Mortgagor or as the court may direct.

8.

Waiver. Mortgagor shall not, and anyone claiming through or under Mortgagor shall not, set up, claim

or seek to take advantage ofany appraisement, valuation, stay, extension or redemption laws now or hereafter in force, in

order to prevent or hinder the enforcement or foreclosure of this Mortgage, or the fmal and absolute sale of the

Mortgaged Property, or the final and absolute placing into possession thereof, immediately after such sale, of the

purchaser or purchasers thereof. Mortgagor, for itself and all who may claim through or under it, waive, if and to the

fullest extent not prohibited by applicable law, all benefits and protections under such appraisement, valuation, stay,

extension and redemption laws.

5

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 21 of 27 PageID #:16913

9.

Sale or Transfer. Subject to the Senior Loan, Mortgagor, without the prior written consent of

Mortgagee, shall not effect, suffer or permit any Prohibited Transfer (as defined herein). Any conveyance, sale,

assignment, transfer, lien, pledge, mortgage, security interest or other encumbrance or alienation (or any agreement to do

any of the foregoing) of any of the following properties or interests shall constitute a "Prohibited Transfer":

(i)

The Premises or any part thereof or interest therein; and

(ii)

Ifthere shall be any change in control (by way oftransfer or change in the co-trustees ofthe

Mortgagor, the beneficiaries of the Trust, transfers of stock, partnership or member interests or otherwise) in

any co-trustee, trustee, partner, beneficial interest holder, member, manager or shareholder, as applicable, which

directly or indirectly controls the day-to-day operations and management of Mortgagor and/or owns a

controlling interest in Mortgagor;

in each case whether any such conveyance, sale, assignment, transfer, lien, pledge, mortgage, security interest, encumbrance or alienation is effected directly, indirectly (including the nominee agreement), voluntarily or involuntarily, by operation oflaw or otherwise; provided, however, that the foregoing provisions ofthis Paragraph 9 shall not apply (i) to liens securing the Settlement Amount, (ii) to the lien of current taxes and assessments not in default, or (iii) to any transfers ofthe Premises, or part thereof, or interest therein, or any beneficial interests, or shares of stock, membership, partnership or joint venture interests, as the case may be, by or on behalfofan owner thereofwho is deceased or declared judicially incompetent, to such owner's heirs, legatees, devisees, executors, administrators, estate or personal representatives.

10.

Non-Waiver. IfMortgagee (a) releases, as aforesaid, any part ofsuch security or any person liable for

any indebtedness secured hereby; (b) grants an extension of time for any payments ofthe indebtedness secured hereby;

(c) takes other or additional security for the payment thereof; (d) accepts_partial payments; or (e) otherwise exercises or

waives or fails to exercise any right granted herein, in the Consent Decree, or in any ofthe other Loan Documents, no

such act or omission shall constitute a waiver of any default, or extend or affect the grace period, if any, release

Mortgagor, subsequent owners of the Mortgaged Property or any part thereof, or the Guarantors pursuant to the

Guaranty, this Mortgage, or any ofthe other Loan Documents, or preclude Mortgagee from exercising any right, power

or privilege herein granted or intended to be granted for any Event of Default.

11.

No Merger of Estates. There shall be no merger ofthe lien, security interest or other estate or interest

created by this Mortgage with the fee estate in the Mortgaged Property by reason that any such interest created by this

Mortgage may be held; directly or indirectly, by or for the account of any person who shall own the fee estate or any

other interest in the Mortgaged Property. No such merger shall occur unless and until all persons at the time having such

concurrent interests shall join in a written instrument effecting such merger and such instrument shall be duly recorded.

12.

Further Assurances. Upon request ofMortgagee, Mortgagor shall execute, acknowledge and deliver to

Mortgagee, in form satisfactory to Mortgagee, fmancing statements covering as collateral any personal property owned

by Mortgagor, which, in the sole opinion of Mortgagee, is essential to the operation of any of the Mortgaged Property,

and any supplemental mortgage, security agreement, financing statement, assignment.ofleases, rents, income and profits

from the Mortgaged Property, affidavit, continuation statement or certification as Mortgagee may request in order to

protect, preserve, maintain, continue and extend the lien and security interest hereunder or the priority hereof. Mortgagor

hereby irrevocably appoints Mortgagee its attorney-in-fact, coupled with an interest, and authorizes, directs and

empowers such attorney, at its option, to execute, acknowledge and deliver on behalf of Mortgagor, its successors and

assigns, any such documents ifMortgagor shall fail so to do within five (5) days after request by Mortgagee. Mortgagor

shall pay to Mortgagee on demand all costs and expenses incurred by Mortgagee in connection with the preparation,

execution, recording and filing of any such documents.

13. Application of Proceeds. All payments made by Mortgagor pursuant to the Consent Decree, this

Mortgage or any of the other Loan Documents shall be applied by Mortgagee to the outstanding balance of the

Settlement

Amount.

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• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 22 of 27 PageID #:16914

14. Senior Loan. (a) Mortgagor has executed and delivered to MERS solely as nominee of U.S. Bank N.A. (i) that certain note in the original principal amount of$624,800.00 (the "Senior Note"); (ii) that certain first mortgage executed by Mortgagor in favor ofU.S. Bank N.A., recorded on May 20, 2004, as Document Number 5563931 with the Recorder ofDeeds of Lake County, Illinois (the "Senior Mortgage"); (iii) any and all other Loan documents and amendments hereto (collectively, the "Senior Loan Documents") (the "Senior Loan"). Mortgagee acknowledges that this Mortgage is junior and subordinate to the lien of the Senior Mortgage.

(b)

Mortgagor Covenants with Respect to Senior Instruments.

(i) Mortgagor covenants and agrees to comply with all of the terms and provisions of the Senior Note, Senior Mortgage and Senior Loan Documents (collectively, "Senior Instruments").

(ii) Mortgagor shall give Mortgagee a copy of all notices given Mortgagor with respect to any of the Senior Instruments within five (5) days after receiving such notice.

(iii) Mortgagor shall not, without the prior written consent of Mortgagee enter into any modification, extension, amendment, agreement or arrangement in connection with any ofthe Senior Note, Senior Mortgage or other Senior Loan Documents.

(c)

Default under Senior Instruments; Lender's Right to Cure. In the event Mortgagor is

declared by the holder ofthe Senior Instruments to be in default with respect to any requirement ofany

of the Senior Instruments, Mortgagor agrees that said default shall constitute a Default hereunder.

Upon the occurrence of such default, in addition to any other rights or remedies available to

Mortgagee, Mortgagee may, but need not, make any payment or perform any act required to cure or

attempt to cure any said default under any of the Senior Instruments in any manner and form deemed

expedient by Mortgagee. Mortgagee shall not be responsible for determining the validity or accuracy

of any claim of default made by the lender under the Senior Instruments and the payment of any sum

by lender in curing or attempting to cure any alleged default or omission shall be presumed

conclusively to have been reasonable, justified and authorized. Mortgagor hereby grants to Mortgagee

an irrevocable power to attorney, which power of attorney is coupled with an interest, for the term of

this Mortgage to cure any default or forfeiture which may occur under the Senior Mortgages.

Mortgagor further agrees to execute a formal and recordable power of attorney granting such right at

any time during the existence of this Mortgage if requested by Mortgagee.

15. Notices. Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed to have been properly given (i) ifhand delivered, or if sent by telecopy, effective upon receipt, or (ii) if delivered by overnight courier service, effective on the day following delivery to such courier service or (iii) ifmailed by United States registered or certified mail, postage prepaid, return receipt requested, effective two (2) business days after deposit in the United States mails addressed as follows:
If to Mortgagor:
John R. Burgess 55 Wynston Barrington, IL 60010
AND
John Burgess International Profit Associates, Inc. 1250 Barclay Boulevard Buffalo Grove, IL 60089

7

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 23 of 27 PageID #:16915

If to Mortgagee:

Jeanne B. Szromba, Esq. Ann M. Henry, Esq. U.S. Equal Employment Opportunity Commission Suite 2000
500 W. Madison Street Chicago, IL 60661

or at such other address or to such other addressee as the party to be served with notice may have furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice.

16.

Loan Documents. The term "Loan Documents" as used herein collectively refers to (a) the Consent

Decree (b) this Mortgage, (c) the Guaranty, and (d) any and all other documents and/or agreements evidencing, securing

or relating to the Settlement Amount.

17.

Advances. (a) This Mortgage shall secure the indebtedness of Mortgagor to Mortgagee that is

evidenced, permitted or secured by the Loan Documents. All of such indebtedness shall be a lien from the time that this

Mortgage is recorded with the Recorder of the County in which the Mortgaged Property is located. There shall be no

future advances.

(b)

The maximum amount of indebtedness secured by this Mortgage shall not exceed three (3)

times the Settlement Amount.

18.

Survival and Conflicts. In the event of any inconsistency or conflict between any provisions of the

Consent Decree and the other Loan Documents, the provisions of the other Consent Decree shall prevail and apply.

19.

Anti-Forfeiture. Mortgagor hereby further expressly represents and warrants to Mortgagee that, to the

best of Mortgagor's knowledge, there has not been committed by Mortgagor or any other person involved with the

Mortgaged Property or Mortgagor any act or omission affording the federal government or any state or local government

the right and/or remedy of forfeiture as against the Mortgaged Property or any part thereof or any monies paid in

performance of its obligations under the Consent Decree or under any of the other Loan Documents, and Mortgagor

hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right and/or

remedy of forfeiture. In furtherance thereof, Mortgagor hereby agrees to indemnifY, defend and hold harmless

Mortgagee from and against any loss, damage or other injury, including without limitation, attorneys' fees and expenses,

to the fullest extent not prohibited by applicable law, and all other costs and expenses incurred by Mortgagee in

preserving its lien, security interest and other rights and interests in the Mortgaged Property and any additional collateral

under any ofthe Loan Documents in any proceeding or other governmental action asserting forfeiture thereof, by reason

of, or in any manner resulting from, the breach ofthe covenants and agreements or the warranties and representations set

forth in the preceding sentence. Without limiting the generality of the foregoing, the filing of formal charges or the

commencement ofproceedings against Mortgagor, Mortgagee, any guarantor, any additional collateral under any ofthe

Loan Documents or all or any part ofthe Mortgaged Property under any federal or state law in respect ofwhich forfeiture

ofthe Mortgaged Property or any part thereofor ofany monies paid in performance ofMortgagor's obligations under the

Loan Documents is a potential result shall, at the election of Mortgagee in its absolute discretion, constitute an Event of

Default hereunder without notice or opportunity to cure.

20.

Miscellaneous. The Mortgaged Property is located in the State of Illinois, and this Mortgage and the

rights and indebtedness secured hereby shall, without regard to the place of contract or payment, be construed and

enforced according to the laws ofthe State of Illinois. Nothing herein contained and no transaction related hereto shall

be construed or so operate as to require Mortgagor to do any act contrary to law, and if any clauses or provisions herein

contained operate or would prospectively operate to invalidate this Mortgage, in whole or in part, or any of Mortgagor's

obligations hereunder, such clauses and provisions only shall be held void and ofno force or effect as though not herein

contained, and the remainder ofthis Mortgage shall remain operative and in full force and effect. All ofthe obligations,

rights and covenants herein contained shall run with the land, and shall bind and inure to the benefit of Mortgagor, its

8

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 24 of 27 PageID #:16916

successors and permitted assigns, and Mortgagee. Whenever used, the singular number shall include the plural and the
plural numbers shall include the singular, and the use of any gender shall include all genders, all as the context may reasonably require.

If any provision of this Mortgage is inconsistent with any applicable provision of the Illinois Mortgage
Foreclosure Law (the "Act"), the provisions ofthe Act shall take precedence over the provisions ofthis Mortgage, but
the Act shall not invalidate or render unenforceable any other provision ofthis Mortgage that can be fairly construed in a manner consistent with the Act. Without in any way limiting any of Mortgagee's rights, remedies, powers and
authorities provided in this Mortgage or otherwise, and in addition to all ofsuch rights, remedies, powers and authorities,
Mortgagee shall also have all rights, remedies, powers and authorities permitted to the holder of a mortgage under the
Act, as the same may be amended from time to time. If any provision of this Mortgage shall grant to Mortgagee any rights, remedies, powers or authorities upon default ofMortgagor which are more limited than what would be vested in
Mortgagee under the Act in the absence of said provision, Mortgagee shall have such rights, remedies, powers and authorities that would be otherwise vested in it under the Act. Without limitation, all expenses (including attorneys' fees
and costs) incurred by Mortgagee to the extent reimbursable under the law of the State of Illinois, whether incurred
before or after any judgment offoreclosure, shall be added to the indebtedness secured by this Mortgage and included in the judgment of foreclosure.

21. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY, AND MORTGAGEE BY ITS ACCEPTANCE HEREOF, EACH WAIVE THE RIGHT OF A JURY TRIAL IN EACH AND EVERY ACTION ON THIS MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS, IT BEING ACKNOWLEDGED AND AGREED THAT ANY ISSUES OF FACT IN ANY SUCH ACTION ARE MORE APPROPRIATELY DETERMINED BY THE COURTS; FURTHER, MORTGAGOR HEREBY CONSENTS AND SUBJECTS ITSELF TO THE JURISDICTION OF COURTS OF THE STATE OF ILLINOIS AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE VENUE OF SUCH COURTS IN THE COUNTY IN WHICH THE MORTGAGED PROPERTY IS LOCATED.

IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed and delivered as of the

date first above written.

·

MORTGAGOR:

Attested and Witnessed: By:._ _ _ _ _ _ _ _ _ __ Name=--------------~------

9

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 25 of 27 PageID #:16917

ACKNOWLEDGMENTS

STATE OFILLINOIS COUNTY OF COOK

)
) ss.
)

I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that JOHN

R. BURGESS, personally known to me to be the CO-TRUSTEE OF THE DANA L. BURGESS REVOCABLE

J}) . TRUST, DATED JUNE 7, 2006 and known to be the same person whose name is subscribed to the foregoing
instrument, appeared before me this day in person and severally acknowledged that as such Co-Trustee, he signed (\.

and delivered the said instrument as Co-Trustee of said Revocable Trust pt:tt'WaRt tg aYtl:terit' gi •en b' the af9r.esaid J:)

.-lfttst as his free and voluntary act and as the free and voluntary act and deed of said Trust, for the uses and purposes

~---·

therein set forth.

GIVEN under my hand and notarial seal this _ _ day of March, 2011.

Notary Public My Commission Expires:

10

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 26 of 27 PageID #:16918

EXHIBIT A

LEGAL DESCRIPTION
THAT PART OF THE NORTH Y2 OF THE SOUTHWEST~ OF SECTION 8, TOWNSHIP 44 N, RANGE 10, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER OF SAID SECTION 8;THENCE WEST ALONG THE HALF SECTION LINE, 21.55 CHAINS TO THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED TRACT OF LAND; THENCE SOUTH 1 DEGREE WEST, 6.64 CHAINS TO THE INTERSECTION WITH THE CENTERLINE OF CHARDON ROAD; THENCE SOUTH 71 DEGREES 15 MINUTES EAST ALONG THE CENTERLINE OF SAID CHARDON ROAD, 450.00 FEET: THENCE NORTHERLY 578.94 FEET, MORE OR LESS, ALONG A STRAIGHT LINE TO A POINT IN THE NORTH LINE OF THE SOUTHWEST ~ OF SD SECTION 8 LYING 433.32 FEET EAST OF THE POINT OF BEGINNING; THENCE WEST ALONG THE NORTH LINE OF THE SOUTHWEST ~ OF SAID SECTION 8, 433.32 FEET TO THE POINT OF BEGINNING, IN LAKE COUNTY, ILLINOIS

Common Address: Permanent Index Number:

23740 Chardon Road, Grayslake, IL 60030 10-08-300-009-0000

11

• • Case: 1:01-cv-04427 Document #: 917-1 Filed: 03/02/11 Page 27 of 27 PageID #:16919
EXHIBITB PERMITTED EXCEPTIONS 1. Any and all real estate taxes not yet due and payable. 2. Mortgage, dated March 31, 2004 and recorded on May 20, 2001 as Document No. 0005563931 made by John R. Burgess to MERS solely as nominee for US Bank N.A.
12

 </s> Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694 (2002)

206 F.R.D. 694 United States District Court,
M.D. Georgia, Columbus Division.
Kogie UPSHAW, Latisha Washington, on behalf of themselves and all others similarly situated, Plaintiffs, v.
GEORGIA (GA) CATALOG SALES, INC., John Gill, and unknown entities and individuals, Defendants.
No. 4:00–CV–86–2(CDL). | April 3, 2002.
Attorneys and Law Firms
*695 Ben B. Philips, Stanley L. Merritt, Jr., Gary O. Bruce, Columbus, GA, Richard A. Fisher, Jimmy W. Bilbo, Cleveland, TN, Jack L. Block, Chicago, IL, for plaintiffs.
John E. Floyd, Neeli Ben–David, Atlanta, GA, William L. Tucker, Columbus, GA, for defendants.
Opinion
ORDER
LAND, District Judge.
I. INTRODUCTION
The Court has pending before it Plaintiffs’ Motion to Proceed As a Class Action. Plaintiffs, Kogie Upshaw and Latisha C. Washington, individually and on behalf of all others similarly situated (collectively “Plaintiffs”), claim that Defendants engaged in unauthorized and unenforceable loan transactions, charging and collecting an interest rate that exceeds the maximum interest rate under Georgia law. Defendants are Georgia Catalog Sales, Inc. (“GCS”), John Gill (“Gill”), who allegedly owned and operated the business, and unknown entities and individuals (collectively “Defendants”). Plaintiffs allege in their First Amended Class Action Complaint that Defendants violated: (1) Georgia’s interest and usury statutes, O.C.G.A. § 7–4–2 and O.C.G.A. § 7–4–18 (Count I); and the federal Racketeer Influenced and Corrupt Organizations Act(“RICO”), 18 U.S.C. § 1961 et seq. (Count II).1

1

The Court notes that Plaintiffs are not proceeding under

the “fraud” provisions of the RICO statute. Therefore,

party specific issues, such as detrimental reliance, that

are typically associated with fraud claims and that can

make a class action unmanageable are not involved in

this case.

Plaintiffs seek certification of a class of all persons who after May 3, 1996, engaged in transactions at any of GCS’s locations in Georgia in which the person received a cash advance and gave GCS a check. Plaintiffs’ *696 motion has been fully briefed by the parties. Furthermore, the Court received evidence and heard argument from counsel at a hearing on January 30, 2002. Having fully considered Plaintiffs’ motion and Defendants’ opposition to the motion, the Court finds pursuant to Rule 23 of the Federal Rules of Civil Procedure that a class should be certified in this case. For the reasons set forth below, the Court certifies the following class: all persons who after May 3, 1996, engaged in transactions at any of GSC’s locations in Georgia in which the person received a cash advance and gave GCS a check, and who never obtained any merchandise using any catalogue gift certificate issued by GCS.2

2

The class certified by the Court is more limited than the

one sought to be certified by Plaintiffs. The Court finds

that by limiting the class to those persons who did not

redeem a catalogue gift certificate, the Court will not

have to inquire into whether Defendants are entitled to

set-offs for certain class members who redeemed

catalogue gift certificates. The Court finds that this

limitation of the class will make the class more

manageable, clearly satisfying the “superiority”

requirement of Rule 23(b), Fed.R.Civ.P. The Court

further notes that this case was filed on May 3, 2000.

The class period commences four years prior to the

filing of the lawsuit, which corresponds with the statute

of limitations for Plaintiffs’ RICO claims.

II. FACTUAL BACKGROUND
Plaintiffs contend that Defendants engaged in a common course of conduct in which they advanced money and gave catalogue gift certificates to consumers in exchange for a written document in the form of a personal check. Evidence was submitted at the class certification hearing from which a fact finder could conclude that every customer that engaged in a transaction with GCS was treated substantially the same. Any differences in the way transactions were handled from one customer to the next related to the amount of the cash advance the customer sought with a corresponding, but directly proportional,
1

Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694 (2002)

difference in the charge for the cash advance and the amount of the gift certificate.3

3

Plaintiffs allege in their complaint and the evidence

submitted at the class certification hearing appeared to

confirm that GCS has standard rates that it charges all

customers. Typically, customers pay $30 for every

$100 advanced. For example, Plaintiff Kogie Upshaw

claims she originally received a $200 cash advance in

exchange for her check in the amount of $260. Plaintiff

Latisha Washington wrote a check for $130 and

received a cash advance of $100. For each $100 cash

advance customers also received a catalogue gift

certificate with a face value of $30.

Evidence was presented at the class certification hearing that Defendants market their business to potential customers as a cash advance service.4 Defendants’ advertisements seek to induce persons who need money to visit their business to obtain a cash advance. One such advertisement introduced at the class certification hearing, soliciting customers for all of GCS’s 16 Georgia stores, states in bold letters: “ADVANCE TIL PAYDAY.” The advertisement promotes Defendants’ cash advance service by offering up to $500 “instant cash.” The advertisement states: “NEED EXTRA CASH $NOW$. Can’t wait until payday. We Make Today Your Next Payday.” The advertisement continues: “Write your check—GET CASH. We will deposit it on your next payday.” This solicitation does not mention “gift certificates.” A reasonable fact finder and prospective customer could conclude from Defendants’ solicitations that Defendants are in the short-term lending business.

4

Evidence was presented at the class certification

hearing that during the relevant time period GCS

operated 16 stores located across the State of Georgia.

Testimony was submitted at the hearing that one of

GCS’s stores was open six days a week, Monday

through Friday, from 9:30 A.M. to 6:00 P.M., and

Saturday, from 10:00 A.M. to 4:00 P.M. In 1999,

approximately 50 or 60 customers came into that store

on a daily basis, and currently 10 to 25 customers a day

visit that store. No evidence was presented to suggest

that this store was atypical of the other GCS stores.

Plaintiffs contend that these transactions are loans at usurious and illegal rates, exceeding 16% per annum simple interest and 5% interest per month in violation of O.C.G.A. § 7–4–2(a)(2) and § 7–14–18(a). Defendants contend that the difference between the amount of the cash advance and the customer’s check is not interest because the customers are provided with catalogue gift certificates which have some value. *697 Plaintiffs contend that the catalogue gift certificates are worthless and a sham designed as part of an overall scheme to

disguise illegal and usurious interest. As the Court has previously found in denying Defendant’s motion to dismiss, a jury question exists on the issue of whether the gift certificates have any real value or are part of a scheme to disguise the amount of interest charged on short-term loans. Although Defendants introduced evidence at the class certification hearing on the issue of the redeemability of the gift certificates and the value of items that could be purchased with them, the Court finds for class certification purposes that a disputed issue of fact exists as to whether the catalogue certificates have any value.

In support of their argument that the catalogue gift certificates have no value, Plaintiffs point out that gift certificates are not even mentioned in Defendants’ advertisements. Moreover, Plaintiffs allege (and no contrary evidence has been submitted by Defendants) that a high percentage of customers do not redeem the gift certificates. Furthermore, testimony presented at the hearing by Defendants’ “experts” creates a disputed issue as to whether a reasonably prudent customer would see sufficient value in the certificates to go to the trouble of sending them in, waiting on delays in shipping, and receiving items that are not significantly cheaper than similar items that could be purchased off the shelf after the shipping and/or handling costs are added.

At this stage of the proceedings, the Court is not to rule on the merits of Plaintiffs’ claims. Without deciding the issue, however, the Court is satisfied for purposes of determining whether a class should be certified in this case that a jury question exists on whether the certificates have any value and thus whether the difference in the amount of the cash advance and the amount of a customer’s check is usurious interest. Therefore, the Court finds that the evidence submitted at the class certification hearing regarding the value of the gift certificates standing alone does not prevent class certification.5

5

The Court finds that if a jury finds that the catalogue

gift certificates are worthless and are a part of a scheme

to disguise illegal and usurious interest, the amount of

that interest could easily be calculated in a uniform

manner by simply determining the difference between

the amount of the customer’s check and the amount of

the cash advance.

III. REQUIREMENTS FOR CLASS CERTIFICATION
[1] “The class-action device was designed as ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” General
2

Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694 (2002)

Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), quoting, Califano v. Yamasaki, 442 U.S. 682, 700–701, 99 S.Ct. 2545, 61 L.Ed.2d 176. “Class relief is peculiarly appropriate when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class.” Id. “For in such cases, the class action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion under Rule 23 [of the Federal Rules of Civil Procedure].” Ibid. In determining whether a class should be certified, the Court must consider whether the maintenance of the class action will advance the efficiency and economy of litigation. Id., at 159, 102 S.Ct. 2364.
In addition to promoting the efficiency and economy of litigation, the class-action device also provides a key to the courthouse for parties with legitimate claims whose access to justice may be slammed shut because the individual amounts of their claims make it economically infeasible to pursue them on an individual basis. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980).
“A class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b).” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir.1997). Plaintiffs contend that they have satisfied Rule 23(a) and Rule 23(b)(3). In determining whether Rule 23(a) and Rule 23(b)(3) have been satisfied, the *698 Court does not evaluate the probable outcome of the case. Kleiner v. First Nat’l Bank, 751 F.2d 1193, 1202 (11th Cir.1985). However, “the class determination [does] generally involve considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Sometimes the issues are plain enough from the pleadings, but “sometimes it may be necessary for the Court to probe behind the pleadings before coming to rest on the certification question.” General Tel. Co. v. Falcon, 457 U.S. at 160.
At this juncture, the Court must determine whether Plaintiffs have demonstrated that they have satisfied the provisions of Rule 23. This does not permit the Court to base its certification on “presumptions” that the Court knows will never be able to be proved at trial. See Sikes v. Teleline, Inc., 281 F.3d 1350 (2002).6 However, this likewise does not mean that Plaintiffs are required to prove their underlying claims to obtain class certification. In determining that Rule 23 has been satisfied in this case, the Court has considered the pleadings, the parties’ submissions relating to class certification, the testimony and documents introduced at the hearing before the Court

on January 30, 2002, and argument of counsel.

6

The Court finds that this case is distinguishable from

Sikes. In Sikes, the district court in certifying the class

presumed that the class members had met the reliance

element of their underlying claim. If the district court

had not made that presumption, then proof of reliance

would have been required for each individual claim at

trial, thus making the class action unmanageable. The

Eleventh Circuit held in Sikes that district courts should

not make presumptions to facilitate the certification of

class actions, explaining that plaintiffs seeking class

certification must establish that Rule 23 has been

satisfied.

In this case, reliance is not an element of the

underlying claim. Moreover, if the class consists

only of those persons who did not redeem gift

certificates and the jury finds that the gift

certificates are worthless and simply a scheme to

disguise usurious interest, it will not be necessary

to make an individual inquiry as to the value of the

individual gift certificates on a case by case basis.

Unlike Sikes, the Court is not presuming that the

gift certificates are worthless. Instead, the Court

finds that in light of the more limited class

certified by the Court, a jury can make that

determination on a class-wide basis and not on a

class-member-by-class-member basis.

A. Fed.R.Civ.P. 23(a)(1)—Numerosity
[2] Consistent with the policy of advancing judicial economy, Federal Rule of Civil Procedure 23(a)(1) requires that a class be so numerous that joinder of all members is impracticable. In evaluating whether the numerosity requirement has been met, precise enumeration of class members is not necessary for the action to proceed as a class action. See Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir.1983). However, Plaintiffs must provide some basis that a good faith estimate of the size of the potential class satisfies the numerosity requirement. The Eleventh Circuit, while recognizing that there is no strict numerical test for determining impracticability of joinder, has implied that a class of more than 40 persons could satisfy the numerosity requirement. See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986).
[3] The Court finds that the proposed class in this case clearly exceeds 40 persons and further finds that it is so numerous that joinder is impracticable. Plaintiffs estimate that the class numbers “in the hundreds, if not thousands.” Defendants do not seriously dispute this figure. Instead, Defendants contend that Plaintiffs have failed to satisfy the numerosity requirement with “evidence” as to the size of the class. The Court finds Defendants’ argument
3

Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694 (2002)

unpersuasive.
GCS’s own advertisement lists 16 different locations in Georgia, which have been operating for a number of years. The size of Defendants’ operations supports the reasonable conclusion that numerosity has been established. Evidence was presented at the class certification hearing that in 1999 one of Defendants’ stores served 50 to 60 customers a day. The store was open six days a week. Currently, an average of 10 to 25 customers use Defendants’ services each day. A simple calculation reveals that the potential class in this case is substantial and that an estimated class of hundreds, possibly thousands, of members is a reasonable good faith estimate. *699 Accordingly, the Court finds that joinder of all of the class members in this case is impracticable, and the numerosity requirement has been met.
B. Fed.R.Civ.P. 23(a)(2)—Commonality
Federal Rule of Civil Procedure 23(a)(2) requires that for certification, there must be “questions of law or fact common to the class.” Class relief is particularly appropriate when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class. See Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979).
The common nucleus of operative facts in this case shows that Plaintiffs and the class entered into the same types of transactions with GCS. As a result, this case gives rise to numerous common issues, including:
(a) Whether the transactions between the class members and GCS are loans or advances bearing interest;
(b) Whether the interest charged on the loans violates the Georgia usury laws;
(c) Whether the loans and interest are unlawful debts, the collection of which violates RICO;
(d) Whether the catalogue gift certificates are worthless and part of a sham to conceal the true nature of the loans.
The Court finds that there are questions of law and fact common to the members of the class, and the commonality requirement has been met.
C. Fed.R.Civ.P. 23(a)(3)—Typicality

To satisfy the typicality requirement, Plaintiffs must show that their claims arise from the same practice or course of conduct that gives rise to the claims of the other class members and that the individual claims of the class members are based upon the same legal theory. The typicality requirement can be satisfied even if factual distinctions exist between the claims of the class representatives and the other members of the class. “A strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences.” Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985).
[4] Plaintiffs contend that GCS offered loans to each class member using the same practices and procedures. All class members are seeking the same relief based upon the same legal theory. Defendants do not dispute that they engaged in standardized transactions, but argue that Plaintiffs have not produced evidence establishing the typical practices and procedures. Contrary to Defendants’ argument, Plaintiffs’ well-pled allegations in the complaint, as well as the testimony and documents introduced into evidence at the January 30, 2002, hearing, do in fact demonstrate the practice engaged in by Defendants. To initiate a transaction, the customer fills out a standardized “check acceptance card.” This card contains detailed information about the customer and records every transaction. Each time a customer writes a check and receives cash and gift certificates, the customer is required to fill out a standardized form called a “Gift Club Purchase Order.” In exchange for receiving a cash advance, the customer must give Defendants a check and accept gift certificates. For each $100 cash advance, the customer provides Defendants with a check for the amount of the cash advance plus $30 for each $100 advanced. The $30 per $100 rates do not vary. Furthermore, each customer receives a $30 catalogue gift certificate for each $100 advanced.
The Court finds for class certification purposes that Defendants had a standard practice for all of its customers, including Plaintiffs and the other members of the potential class. All class members used the same standardized forms, and the terms of each transaction were essentially the same. Moreover, the alleged unlawful conduct (the charging of usurious and unlawful interest on loan transactions) is the same for each class member. Although the gross amount of “interest” charged may have varied depending on the amount of cash advanced, the rates were the same. Consequently, Plaintiffs’ claims arise from the same course of conduct by Defendants that other class members’ claims arise from, and the same legal theory (alleged usurious and unlawful interest) applies *700 to Plaintiffs’ claims and to the claims of other class members. Accordingly, the Court finds that the typicality requirement has been met.
4

Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694 (2002)

D. Fed.R.Civ.P. 23(a)(4)—Adequacy of Representation
Federal Rule of Civil Procedure 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. The Eleventh Circuit has stated that “[t]he adequate representation requirement involves questions of whether plaintiffs’ counsel are qualified, experienced and generally able to conduct the proposed litigation, and of whether plaintiffs have interests antagonistic to those of the rest of the class.” Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir.1985).
Plaintiffs Upshaw and Washington have undertaken the cause of all class members. They share the common interest with the class in pursuing the same claims and seeking the same relief. All class members are customers of Defendant GCS who engaged in the same types of transactions. In that regard, there are no antagonistic or conflicting claims between Plaintiffs Upshaw and Washington and the other members of the class.
[5] Defendants contend that Plaintiff Upshaw is not an adequate class representative because she may be subject to a unique defense.7 Defendants claim two of her checks were returned for insufficient funds. Defendants’ argument does not suggest any disabling conflict of interest, and therefore does not disqualify Upshaw under the Eleventh Circuit’s test for adequacy of representation. Defendants also suggest that they may be entitled to a set-off. A claim for a set-off only affects the calculation of damages. Differences in the amount of damages or even the availability of certain defenses against a class representative do not render his or her claim atypical. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.1984). The Court finds that Upshaw and Washington are adequate class representatives.8

7

Defendants have not claimed that Washington was

inadequate. However, since the Court certifies a more

limited class than the one sought by Plaintiffs,

Defendants shall be permitted through a motion for

reconsideration to contest Washington (and Upshaw’s)

adequacy if they have evidence that they are not

members of the more limited class. Based upon the

pleadings, the Court finds that they are members of the

more limited, certified class.

8

Defendants contend that usury is a personal claim, and

therefore Plaintiffs cannot pursue such claims as a class

action. The Eleventh Circuit appears to disagree with

Defendants’ contention. See Moore v. Comfed Sav.

Bank, 908 F.2d 834 (11th Cir.1990).

Plaintiffs have retained Gary O. Bruce, Ben B. Philips, Stanley L. Merritt, Jr., Jack L. Block, and Richard A. Fisher as their counsel. Plaintiffs’ counsel as a group

include experienced trial counsel who have engaged in major class actions similar in size, scope, and complexity to this case. The Court is satisfied that Plaintiffs’ counsel are qualified, experienced, and generally able to conduct the litigation. In fact, Defendants do not appear to challenge the qualifications of Plaintiffs’ counsel. Based on the foregoing, the Court finds that Plaintiffs and Plaintiffs’ counsel meet the requirements of Federal Rule of Civil Procedure 23(a)(4).
E. Fed.R.Civ.P. 23(b) [6] Having determined that Plaintiffs have satisfied each of the requirements of Rule 23(a), the Court must next determine whether Plaintiffs can satisfy at least one of the requirements of Rule 23(b). The Court finds that Plaintiffs meet the requirements of Rule 23(b)(3). Rule 23(b)(3) requires that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
1. Predominance
In this case, Defendants’ conduct was substantially the same with respect to all members of the class. This conduct gives rise to Plaintiffs’ class-wide liability claims for violation of the Georgia usury laws and RICO. The Defendants’ primary defense, based *701 upon the gift certificates, applies to the class as a whole. This is precisely the type of case for which the class action procedure was intended.
[7] The only significant difference from class member to class member in this case appears to be the amount of individual damages recoverable. Variations in the amount of damages suffered by individual class members will not preclude a finding of predominance or defeat certification of the class. The existence of some separate issues of law and fact, particularly regarding damages, does not negate class action certification. Although class treatment may not serve to lessen the Plaintiffs’ burden of proof on the elements of the underlying claim, including damages, the Eleventh Circuit has recently noted:
This is not to say that it would be impossible to certify any class because of damages problems. In cases involving damages that may be calculated by a reliable formula—such as overcharge cases or usury case—damages are not much of a hurdle at all to certification.
5

Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694 (2002)

Sikes v. Teleline, Inc., 281 F.3d at 1365, N. 40 (2002) (Emphasis added).
In this usury case, determining individual damages is a matter of mathematical calculation. It is clear that common questions of law and fact predominate over any questions affecting only individual class members. Accordingly, the predominance requirement of Rule 23(b)(3) is met.
2. Superiority
Rule 23(b)(3) also requires an examination of whether “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). In this case, the amounts in controversy for each class member are relatively small. Because the substantial costs associated with prosecuting such claims appear far greater than any potential individual recovery, it is unlikely that class members individually could afford to pursue claims against the Defendants, no matter how meritorious their claims. Moreover, if these claims were litigated separately, repeatedly litigating the same issues would have “lamentable consequences for judicial economy and the finality and consistency of judgments.” See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir.1986). Trying these small claims once before a single court provides access to justice for many claimants who may otherwise be denied a key to the courthouse door. Furthermore, even if sufficient incentive existed for individual claimants to pursue their claims separately, class action treatment is far superior to having the same claims litigated repeatedly, wasting valuable judicial resources.
Defendants’ principle argument in opposition to class certification is that this case is not manageable as a class action. Therefore, according to Defendants, a class action is not the superior method for resolving these claims. Defendants are correct that the Court must evaluate the difficulties associated with managing the class action and determine whether those difficulties outweigh the benefits of (1) providing access to the courthouse for these individual small claims and (2) avoiding multiple, wasteful litigation.
[8] Evidence was presented at the class certification hearing that Defendants keep a record of each customer’s transactions. Those records show how much each customer received as a cash advance, the amount that each customer’s check exceeded his advance, and whether the customer redeemed the catalogue gift certificates. Moreover, as previously described, the rates charged for the cash advances were uniform and easily calculated.

Therefore, no insurmountable manageability problem exists regarding a determination of the amounts class members received as a cash advance and how much they paid for the advance. Consequently, if the trier of fact concluded that these transactions were loans and that the gift certificates were a worthless component of a sham or scheme to disguise short-term, high interest loans, then they could easily determine the amount of the “interest” charged and whether it was usurious.9 Under these circumstances, *702 the Court does not foresee any insurmountable proof problems regarding the class members’ transactions that would render this case unmanageable.10

9

By limiting the class in this case to members who did

not redeem catalogue gift certificates, the Court

eliminates the need to differentiate between class

members based upon the assignment of some value to

the items that they obtained using the gift certificates.

The trier of fact will be able to determine based upon

the evidence whether the catalogue gift certificates had

any value to the members of the class who chose not to

redeem them. If the trier of fact concludes that the class

members’ choice not to redeem the gift certificates

combined with other evidence establishes that the gift

certificates had no (or de minimis) value, then the class

can be reasonably managed. If Plaintiffs are unable to

convince the trier of fact that the gift certificates had no

(or de minimis ) value, then Defendants will likely

prevail on the merits. The possibility that Defendants

may prevail on the merits does not preclude class

certification.

10

The Defendants rely upon the Eleventh Circuit’s

decision in Andrews v. AT & T Co., 95 F.3d 1014 (11th

Cir.1996), for their contention that individual issues

predominate and the case is unmanageable. They also

cite the recent decision of Sikes v. Teleline, Inc., 281

F.3d 1350 (2002). Andrews and Sikes involved

900–number telephone programs which allegedly

involved illegal gambling. The Eleventh Circuit found

insurmountable problems because reliance would have

to be proven on an individual basis, the nationwide

class implicated the laws of fifty states, and the

defendant had no records to prove injury and damages.

Since reliance is not an issue in the instant case, the

class is limited only to the State of Georgia, and

Defendants have detailed records, Andrews and Sikes

are distinguishable and are not controlling here.

In this case, the only alternatives to a class action are either no recourse for hundreds of potentially injured consumers or, in the unlikely event that these consumers became aware of their rights and could locate counsel, a multiplicity of suits raising essentially the same claims. Balancing the manageability challenges involved in this litigation with the potential denial of any relief to hundreds of allegedly injured consumers and/or the
6

Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694 (2002)

clogging of our court system with multiple actions involving the same factual and legal issues, the Court finds that a class action is superior to any other available method for the fair and efficient adjudication of this controversy. Accordingly, Rule 23(b)(3) has been satisfied.
IV. CONCLUSION
Based on the foregoing, it is hereby ordered as follows:
1. The Court finds that the requirements of Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure are met and the Court certifies the following class:
All persons who after May 3, 1996, engaged in transactions at any of GCS’s locations in Georgia, in which the person received a cash advance and gave GCS a check, and who never redeemed any catalogue gift certificates that were provided to the person as part of the transaction.

2. The Court finds that Kogie Upshaw and Latisha Washington are adequate class representatives.
3. The Court finds that Gary O. Bruce, Ben B. Philips, Stanley L. Merritt, Jr., Jack L. Block and Richard A. Fisher are qualified to serve as counsel in this class action and the Court designates them as Class Counsel.
4. The Court directs the Plaintiffs to prepare and submit to the Court within 14 days of the date of this order a proposed notice to the class in accordance with Rule 23(c)(2) of the Federal Rules of Civil Procedure.
5. The Court directs the Defendants within 60 days of the date of this order to provide a class list to Plaintiffs, in a readily useable computer format, if possible, which includes the names, the last known addresses, telephone numbers, and social security numbers of all class members of the class certified in this case.
	
  

7

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
INTERNATIONAL PROFIT ASSOCIATES, INC.,
Defendant.

)

)

)

)

)

Case No. 01 C 4427

)

)

Judge Joan B. Gottschall

)

)

)

)

MEMORANDUM OPINION AND ORDER

This is an employment discrimination suit brought by the Equal Employment

Opportunity Commission (“EEOC”) against International Profit Associates, Inc. (“IPA”)

pursuant to 42 U.S.C. § 2000e-2 (2006) and 42 U.S.C. § 2000e-5 (2006). The EEOC

alleges that IPA fostered a hostile work environment at its business offices in Buffalo

Grove, Illinois, because IPA’s female employees were routinely subjected to severe and

pervasive sexual harassment and IPA failed to take appropriate action to stop the abuse.

The EEOC seeks injunctive relief pursuant to the pattern or practice theory of employer

liability, see Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36

(1977), and also compensatory and punitive damages on behalf of each of the 113 individual claimants that make up the “class”1 pursuant to 42 U.S.C. § 1981a (2006).

The issues currently before the court arise from the court’s opinion of March 16,

2007, EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427, 2007 WL 844555 (N.D. Ill. Mar.

16, 2007). The court’s prior opinion dealt with IPA’s motion for summary judgment, in

1 As this case was brought at the behest of the EEOC, and not a group of private individuals, the term “class” is used for purposes of description only and not in the procedural sense contemplated by Rule 23 of the Federal Rules of Civil Procedure.

1

which IPA argued that judgment as a matter of law should be entered on many of the individual class members’ claims because those claimants cannot establish the requisite elements of a hostile work environment sexual harassment claim. Id. at *4. In response to IPA’s motion, the EEOC argued that it is not required to prove each claimant’s case individually—even though individual damages are sought—because this is a pattern or practice action and the focus of such an action is the employer’s work environment as a whole. Id. at *5. The EEOC contended that certain elements of the individual claimants’ cases would be established through proof that IPA engaged in a pattern or practice of unlawful discrimination (i.e., proven as to the entire class), and that the court therefore could not reach IPA’s summary judgment motion until the pattern or practice aspect of this case was complete. Id.
Obviously, the parties had very different ideas about the manner in which this case should proceed. Unfortunately, neither the EEOC nor IPA had addressed key issues that required resolution before the court could rule on IPA’s summary judgment motion. Specifically, the parties disagreed on numerous prefatory legal issues, but had not directly addressed the method of proof for the EEOC’s claims. The court was uncomfortable ruling without giving the parties the opportunity to provide specific, focused input regarding the applicable legal framework, id. at 4, so the prior opinion simply resolved several preliminary disputes, outlined the remaining issues, and directed the parties to submit briefs addressing a number of discrete legal questions, id. at * 6-14. IPA’s motion for summary judgment was denied without prejudice, and the court indicated that a new schedule for dispositive motions would be set after the court ruled on the governing legal standards. Id. at *1.
2

Specifically, the court rejected IPA’s suggestion that the EEOC cannot maintain this case as a pattern or practice suit because the EEOC is proceeding under section 706 of Title VII, 42 U.S.C. § 2000e-5 (which sets forth the procedures the EEOC must follow when it brings suit based on a charge of discrimination filed by an employee, as in this case) as opposed to section 707 of Title VII, 42 U.S.C. § 2000e-6 (2006) (which specifically authorizes a the EEOC to bring a “pattern or practice” action on its own initiative). Int’l Profit Assocs., 2007 WL 844555, at *6-9. As the court previously stated, the EEOC is statutorily authorized to bring a pattern or practice action to enjoin systemic unlawful employment practices, as defined by 42 U.S.C. § 2000e-2(a)(1), under either section 706 or section 707. Id. at *9.
The court also determined that the EEOC may bring a pattern or practice suit premised on the hostile work environment theory of sexual harassment, a point that should be obvious since the Supreme Court has long held that sexual harassment that constructively alters the terms and conditions of employment by creating a hostile work environment is an unlawful employment practice. See id. at *9 (citing, inter alia, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998)). Less obvious, however, is how a pattern or practice case involving the hostile work environment theory of sexual harassment should be tried. Id. at 11.
As the court detailed in its previous opinion, the traditional “pattern or practice” framework was developed by the Supreme Court in Teamsters, a case dealing with racially discriminatory hiring and promotion practices. Id. at *6. In Teamsters, the Court adapted the well-known McDonnell Douglas race discrimination test to the pattern or practice method of proof, holding that the EEOC can establish a prima facie pattern or
3

practice of race discrimination by proving that the employer regularly and systematically discriminated in its employment decisions—i.e., “that ‘discrimination was the company’s standard operating procedure.’” Id. (quoting Teamsters, 431 U.S. at 336). If the EEOC does so (and the employer does not rebut the EEOC’s prima facie case), the employer may be held liable for violating Title VII by discriminating on the basis of race, and the EEOC can obtain “‘prospective relief.’” Id. at *7 (quoting Teamsters, 431 U.S. at 361).
Where individual relief is also sought, however, the EEOC must still prove that the individual claimants were victims of the discriminatory policy. Id. For unlawful hiring and promotion claims, the EEOC’s initial burden is not a particularly onerous one; the EEOC must show only that the individual claimants sought but did not receive a job or promotion during the time the discriminatory policy was in place. Id. By virtue of the pattern or practice finding, the employer’s individual employment decisions are then presumed to be the result of the discriminatory policy. Id. Of course, the employer can rebut this presumption by demonstrating a non-discriminatory reason for a particular decision, and the EEOC is then entitled to offer evidence that employer’s proffered reason is pretextual. Id.
As the court explained in its previous decision, in a race discrimination case it is clear why a pattern or practice finding should have an effect on an employer’s liability to individual claimants. If an employer has an established policy of making employment decisions with racial animus in violation of Title VII, it is likely that any specific employment decision also violates Title VII, and if a particular decision was not discriminatory, the employer is in the best position to show why. Id. at 11; see also Teamsters, 431 U.S. at 359 n.45 (“[T]he employer was in the best position to show why
4

any individual employee was denied an employment opportunity.”). However, the impact of a pattern or practice finding in a hostile work environment sexual harassment case is not so clear. In contrast with a race discrimination case—where the focus is on the employer’s basis for making an employment decision that adversely affected the claimant—a sexual harassment case centers on the gravity of the conduct to which a claimant was exposed. Int’l Profit Assocs., 2007 WL 844555, at *11. The sexual harassment suffered by the claimant must have been severe or pervasive enough (measured both objectively and subjectively) to constructively alter the terms or conditions of the claimant’s employment by creating a hostile work environment. Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1992); Whittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005)). Otherwise, no Title VII violation has occurred. Id. at *9-10. Therefore, a finding that an employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual claimant suffered violates Title VII. It is thus unclear what effect a pattern or practice finding should have on an individual claimant’s suit for damages.2 Id. at *11.
The Supreme Court has never considered how a hostile work environment sexual harassment case should be tried under the pattern or practice model and, to this court’s knowledge, neither has any court of appeals. In the briefing on IPA’s motion for
2 The court previously rejected IPA’s argument that the EEOC cannot seek individual damages in a pattern or practice case, finding that the EEOC is statutorily entitled to do so. EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427, 2007 WL 844555, at *13 (N.D. Ill. Mar. 16, 2007). The court noted, however, that the EEOC cannot recover compensatory and punitive damages simply based on a pattern or practice showing because Teamsters permits only prospective relief in such circumstances. Id. Thus, there is no doubt that the EEOC must make some kind of individual showing in order to recover damages on behalf of the individual claimants; at issue is what such a showing entails. See id. (the crucial issue is “what the EEOC must prove in order to prevail on its pattern or practice theory and what more it must prove in order to establish that the individual claimants are entitled to damages under section 1981a”).
5

summary judgment, the EEOC identified several district court cases that have wrestled with the issue, see, e.g., EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001) (modified by EEOC v. Dial Corp., 259 F. Supp. 2d 710, 712-16 (N.D. Ill. 2003)); EEOC v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *2-3 (N.D. Ill. July 13, 1999) (considering method of proof in hostile work environment pattern or practice case involving individual damages); EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1069-82 (C.D. Ill. 1998) (same), but the court had reservations as to whether the lead case, Mitsubishi, properly applied Teamsters to the Supreme Court’s hostile work environment jurisprudence and, in any event, the court wanted the parties to provide briefing on the difficult issues presented by this case before making its decision. Int’l Profit Assocs., 2007 WL 844555, at *14 n.20. The court therefore directed the parties to brief the following issues:
(1) what, specifically, the EEOC must prove in order to establish that IPA has violated Title VII by allowing a pattern or practice of employment discrimination; (2) what, specifically, the EEOC must prove in order to recover damages under section 1981a on behalf of the individual claimants; and (3) what effect, if any, a finding in the EEOC’s favor as to the pattern or practice aspect of this case should have on the individual aspects of this case. Id. at *14. The parties have done so, and the court commends them for their efforts. The parties’ briefs are well-focused and comprehensive, and the court has found the parties’ submissions extremely helpful in considering the full implications of the decision at hand. In conjunction with its brief regarding the applicable trial framework, the EEOC renewed its motion for bifurcation, as this court invited it to do in the previous order. See id. at *14 n.21. This opinion therefore addresses not only the method of proof for the
6

EEOC’s case but also the EEOC’s motion. For the reasons set forth in further detail below, this case will be bifurcated into two phases, a pattern or practice phase (“Phase I”) and an individual phase (“Phase II”), but will be decided by one jury according to the principles set forth in this opinion.
I. ANALYSIS A. The EEOC’s Theory The EEOC asks the court to bifurcate the trial of this case into two phases pursuant to Rule 42(b) of the Federal Rules of Civil Procedure: a “liability” phase and a “remedial” phase. EEOC’s Renewed Mot. to Bifurcate 3. According to the EEOC, the liability phase would focus on the pattern or practice aspect of the case, but would also include a verdict on punitive damages. Thus, punitive damages would be awarded as to the entire class, but not allocated amongst individual class members until the conclusion of the remedial phase.3 A finding that IPA engaged in a pattern or practice of Title VII discrimination at the liability phase would also allow the court to award the EEOC injunctive relief. Under the EEOC’s theory, the remedial phase would then focus on the individual claimants’ compensatory damages claims. The EEOC acknowledges that in this case, as with any individual case, it must prove every element of the hostile work environment sexual harassment cause of action in order to prevail. The elements of such a claim were set forth in the court’s prior opinion, and are as follows: (1) the alleged misconduct must have been based on sex (i.e., directed at the plaintiff because of her sex); (2) the conduct must have been severe or pervasive enough to render the plaintiff’s work environment both objectively and
3 The EEOC contends that “the court should distribute to each class member a percentage of the punitive damages award equal to the percentage she received of the total compensatory damages awarded.” EEOC’s Renewed Mot. to Bifurcate 7.
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subjectively hostile; and (3) there must be a basis for holding the employer liable for the harassment to which the plaintiff was exposed (i.e., negligence, unless the harassment was perpetrated by a supervisor). See EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427, 2007 WL 844555, at *9-10 (N.D. Ill. Mar. 16, 2007) (citing, inter alia, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002), Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1992), and Whittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005)). The EEOC contends, however, that because this is a pattern or practice sexual harassment case, certain of these elements should be proven with respect to the entire class (i.e., at the liability phase) and others should be proven with respect to the individual claimants (i.e., at the remedial stage). In other words, the EEOC advocates a split method of proof.
Specifically, the EEOC argues that every element of the hostile work environment cause of action, with the exception of the subjective component of the severe or pervasive inquiry, should be proven at the pattern or practice stage. Thus, according to the EEOC, the liability phase jury should decide whether the sexual harassment that occurred at IPA during the relevant time period, taken as a whole, was so severe or pervasive that a reasonable woman would find the work environment at IPA to be hostile. The liability phase jury would also consider whether IPA had a “policy of tolerating (and therefore condoning and/or fostering)” such an environment. EEOC Renewed Mot. to Bifurcate 10. The EEOC concedes that this latter inquiry—which goes to the question of IPA’s liability—should be resolved under the negligence standard that applies to harassment by co-workers, as opposed to the strict liability standard that applies to harassment by supervisors (subject to the affirmative defenses established in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).
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See Int’l Profit Assocs., 2007 WL 844555, at *10. This is because the pattern of harassment that the EEOC accuses IPA of tolerating was perpetrated by the claimants’ supervisors and co-workers alike, and it is therefore impossible to distinguish between the actions taken by the two types of perpetrators for purposes of assessing IPA’s pattern or practice liability.4 Therefore, according to the EEOC, IPA should be found negligent, and thus liable, if IPA had notice (actual or constructive) that regular or systematic sexual harassment was occurring but did not take adequate steps to address the problem on a company-wide basis. The EEOC asserts that if it establishes these two components— objectively severe or pervasive sexual harassment and a company policy of tolerating it— IPA must be found liable for the pattern or practice. Under the EEOC’s theory, this would justify not only injunctive relief but also punitive damages. A finding with respect to the latter is appropriate at the liability stage, the EEOC asserts, because the showing that the EEOC must make to receive punitive damages—that IPA acted with malice or reckless disregard for the federally protected rights of its employees, see 42 U.S.C. § 1981a(b)(1) (2006)—overlaps with the proof it (and IPA, in rebuttal) will offer on the pattern or practice elements.
Once it has established IPA’s pattern or practice liability, the EEOC argues, the remedial stage will focus on the individual claimants’ subjective perception of the harassment to which they were exposed and the extent of their damages. Thus, according to the EEOC, at the remedial stage it must only
4 According to the EEOC, “Using one liability standard will simplify the analysis and will have little practical effect because the first element of the Faragher/Ellerth affirmative defense, that the employer acted with reasonable care to prevent or correct harassment, is essentially the same as the negligence standard, under which an employer is liable if it knew or should have known of the pattern or practice of harassment but failed to take steps to address the problem on a company-wide basis.” EEOC Revised Mot. to Bifurcate 10 n.7.
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prove (through the testimony of the individuals themselves and relevant witnesses) for each claimant that she was exposed to the pattern or practice of a hostile work environment (i.e., that she worked at IPA during the relevant time period and that she witnessed or experienced at least one incident of sexual harassment); that the harassment she experienced was unwelcome; and that she was harmed by it. EEOC Renewed Mot. to Bifurcate 9-10. The EEOC asserts that all other elements of the cause of action are conclusively established at the liability stage, and that “IPA cannot contend . . . that an individual woman was not subjected to severe or pervasive harassment” or “that it was not negligent as to a particular class member.” Id. at 12. The EEOC does allow, however, that IPA could argue “that individual claimants were illtreated for a reason other than because of their sex, and, of course, that they were not subjectively offended (e.g., by arguing that the alleged conduct was welcome).” Id. If the remedial stage jury determines that an individual claimant was offended by the conduct to which she was exposed, then it must award the claimant compensatory damages. Under the EEOC’s theory, the court would then allocate the punitive damages awarded by the liability phase jury according to the percentage of the total compensatory damages awarded to each claimant by the remedial phase jury.
B. Precedent Supporting the EEOC’s Position To support the framework outlined above, the EEOC relies primarily on two district court cases (as the court noted above, no appellate courts have addressed this issue): EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059 (C.D. Ill. 1998), and EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001) (modified by EEOC v. Dial Corp., 259 F. Supp. 2d 710 (N.D. Ill. 2003)). Both cases dealt with the same question that is before this court: how should a pattern or practice case involving the hostile work environment theory of sexual harassment be tried, given that the EEOC
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seeks both injunctive relief and compensatory and punitive damages on behalf of the individual claimants? In Mitsubishi, the court opted for a bifurcated framework similar (though, as discussed below, different in several key respects) to that sought by the EEOC here. Specifically, the Mitsubishi court held that to establish a pattern or practice of sexual harassment, the EEOC would have to prove by a preponderance of the evidence that (1) an objectively reasonable person would find that severe or pervasive sexual harassment rendered the employer’s work environment, taken as a whole, hostile; and (2) the employer knew or should have known that its work environment was permeated with sexual harassment but did not properly address the problem on a company-wide basis. 990 F. Supp. at 1073-76. The court noted that “[t]he purpose and effect of a successful pattern or practice case is to impose liability on a private employer . . . for discriminatory policies created and maintained by an employer that result in a system-wide pattern or practice of disparate treatment against individuals who fall within a protected class.” Id. at 1077. Thus, the court decided that an individual employee’s subjective perception regarding the conduct to which she was exposed was not relevant to the issue of whether the employer fostered a discriminatory policy toward women in general. Id. at 1076. Accordingly, the Mitsubishi court modified the test established by the Supreme Court in Harris by excluding the subjective element from the pattern or practice phase. Id. at 1076-77. The court stated, however, that a pattern or practice finding would authorize the EEOC to obtain only injunctive relief. Id. at 1077. If the EEOC wished to recover monetary damages, it would also have to present individual proof at an “individual relief” phase. Id.
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The individual proof contemplated by Mitsubishi, however, was minimal. Relying on Teamsters, the court adopted what it called “a rebuttable presumption of individual liability to all women in the workplace” based on the pattern or practice finding. Id. at 1079. The court noted that Teamsters did not intuitively fit the hostile work environment scenario. See, e.g., id. at 1078 (“A finding of pattern or practice liability for sexual harassment does not give rise to any obvious presumptions with regard to individual liability for sexual harassment . . . .”). But the court nonetheless constructed a burden-shifting framework because it believed that the individual class members should receive some benefit from a finding that the employer had a pattern or practice of tolerating sexual harassment. Id. Mitsubishi therefore permitted the EEOC to satisfy the objective component of the hostile work environment test for the individual claimants by aggregating the acts of harassment relied on during the pattern or practice phase.5 Id. The individual claimants, even those who experienced only marginal sexual harassment, were thus relieved of their burden to show that the acts they experienced were severe or pervasive. The court based this ruling on its belief that
[a]lthough “isolated” or “sporadic” instances of harassment experienced by a person in an individual action are typically not enough to establish hostile environment sexual harassment, single instances of conduct must be taken together with the continuous pattern or harassment in the workplace, as a whole, which was established at the pattern or practice phase.
5 The court did, however, suggest that the presumption on this element was rebuttable, and that the defendant could offer evidence that the harassment directed at a particular claimant would not be perceived as severe or pervasive by a reasonable person. See Mitsubishi, 990 F. Supp. at 1078.
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Id. at 1081.6 The court also shifted the burden of production on the subjective element—
which the court referred to as “virtually a formality,” id. at 1078—to the defendant, thus
requiring the employer to come forward with evidence that the harassment to which an
individual claimant was exposed was welcome. Id. Finally, the court noted that a pattern
or practice finding would justify an inference that the employer knew of and tolerated the
sexual harassment to which the individual claimants were subjected.7 Id. at 1080.
Therefore, under the Mitsubishi framework, the subjective element is the only component
of the hostile work environment test which must be established at the individual stage,
and the burden of production with respect to this element (and all other elements) is on
the employer. If the employer does not present evidence to rebut the individual
plaintiffs’ claims, it will be held liable and the individual claimants will be entitled to
compensatory (and perhaps punitive) damages. Id. at 1081-82.
Dial leaned heavily on Mitsubishi, and the framework adopted by the Dial court
mirrors that set forth in Mitsubishi with a few important exceptions. See generally Dial,
6 The court went on to state: An individual’s personal experience of sexual harassment is part of the larger context within which she works. Although she may only be the target of one or two incidences of harassment by an individual, these incidences are part of a pattern of conduct by the employer that is actionable. The individual claimant is . . . not only a victim of the individual acts of discrimination perpetrated by the harasser . . . but she is also the victim of a systemic policy of tolerance within the company.
EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1081 (C.D. Ill. 1998). 7 Although the court referred to the effect of the pattern or practice finding on this element as a “presumption,” it later stated that “an individual would still need to bear her ultimate burden of proof on the issues of notice and negligence.” Mitsubishi, 990 F. Supp. at 1080. Although there appears to be a discrepancy in the court’s holding on this element, any burden placed on the plaintiffs was nominal. As the court said,
There is . . . no need to duplicate proofs with respect to the objective findings of notice and negligence established in Phase I. All that is required in Phase II is for the individual claimant to assert that the employer had notice and was negligent with regard to the harassment she suffered. It will then be necessary, as it is in an individual case, for the employer to come forward with some evidence rebutting these assertions. If the employer fails to produce such evidence, then the presumption of notice and negligence which flows from the pattern or practice finding, together with the individual’s subjective assertion of such facts, is enough to establish a basis for individual liability. Id. at 1080-81.
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156 F. Supp.2d at 946-58 (discussing, inter alia, Mitsubishi and adopting bifurcated trial framework according to Mitsubishi model). First, Dial suggested that a subjective showing should also be required at the pattern or practice phase of the trial. See Dial, 156 F. Supp. 2d at 950 (“Generally, in the pattern-or-practice context, a finding of unwelcomeness will be justified where the plaintiff class shows by a preponderance of the evidence that women, by their conduct, indicated that the acts of sexual harassment were unsolicited and regarded as undesirable or offensive.” (citation and internal quotation marks omitted)). Second, Dial decided to divide the claimants into groups at the individual phase of the trial and try their claims using several different juries (as opposed to one jury, as implied by Mitsubishi). Id. at 958 n.18. Finally (and most importantly for present purposes), the Dial court later revisited its initial decision on the trial framework and decided to include punitive damages at the pattern or practice phase. Dial, 259 F. Supp. 2d at 713. In relevant part, the court stated:
Phase I should result in a finding by the jury of whether and when a pattern or practice of tolerating sexual harassment existed. Because evidence to support the claim of such a pattern or practice necessarily will include some episodes that may tend to show whether the pattern or practice was engaged in with malice or reckless indifference to the federally protected rights of aggrieved persons of the class, such state-ofthe-mind evidence may be received at Phase I and the malice-or-recklessindifference issue should be decided by the same jury as decides the pattern or practice issue. Id. In all other important respects, Dial followed the framework established by the Mitsubishi court. It is worth noting that neither Mitsubishi nor Dial ever reached trial. In fact, the EEOC cites only one pattern or practice sexual harassment case that was actually tried: Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993). Like Teamsters,
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Jenson involved allegations regarding a pattern or practice of discriminatory employment decisions—specifically, hiring and promotion. Id. at 856. However, the plaintiff class joined hostile work environment claims based on sexual harassment with their Title VII discrimination claims, and the court tried both types of claims using the pattern or practice model. Id. at 879-88. The framework used by the court for the hostile work environment claims was similar to that adopted in Mitsubishi (although the analysis in Jenson was much less comprehensive); indeed, the Mitsubishi court relied heavily on Jenson in formulating its approach. See Mitsubishi, 990 F. Supp. at 1074 (discussing Jenson’s articulation of method of proof for pattern or practice hostile work environment sexual harassment action). Jenson, like Mitsubishi, expressed reservations about applying the Teamsters pattern or practice approach to the hostile work environment setting. Jenson, 824 F. Supp. at 875-76. The court noted that a typical pattern or practice discrimination case focuses on the employer’s decisions, whereas a hostile work environment case centers on the seriousness of the harassment to which an employee was exposed. Id. However, the court appeared to be concerned only with the treatment of the subjective component of the inquiry, stating that “the proof introduced during the liability phase cannot resolve a disparate issue of fact essential to claims alleging hostile work environment: whether individual members of the plaintiff class were as affected as the reasonable woman would have been.” Id. at 876. The court therefore—in contrast with Mitsubishi—refused to shift any burden on the subjective component to the employer during the individual phase of the case.8 Id.
8 EEOC v. Foster Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200 (N.D. Ill. Jul. 13, 1999), also cited by the EEOC, adopted the Mitsubishi framework but rejected Mitsubishi’s burden-shifting approach to the subjective component at the individual relief stage, choosing instead to follow Jenson. Id. at *3.
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More importantly, Jenson held that the subjective component of the hostile work environment cause of action was the only element at issue during the individual phase. See id. (“[I]ndividual class members need only show that they were at least as affected as the reasonable woman. The other elements of a hostile work environment claim are established by the court’s determination in the liability phase of the proceedings.”). This is another important distinction from Mitsubishi: the employer in Jenson was not permitted to rebut the impact of the pattern or practice finding on other elements of the individual claimants’ hostile work environment claims at the individual phase, for those elements had already been conclusively established based on the court’s pattern or practice finding. See id. at 879-88 (finding the defendant had engaged in a pattern or practice of sexual harassment). The court imposed injunctive relief based on the pattern or practice finding, and indicated that it would determine the plaintiffs’ damages after considering the subjective component during “the recovery phase of the proceedings.” Id. at 888.
C. The Court Rejects the EEOC’s Proposed Method of Proof As the above recitation of the EEOC’s theory demonstrates, the EEOC is seeking to blend aspects of Mitsubishi, Dial, and Jenson to create an approach that will dramatically increase its odds of prevailing in this case, particularly with respect to its ability to recover punitive and compensatory damages.9 In essence, the EEOC wants to prove every element (save the subjective showing) of the individual claimants’ cases by aggregating its evidence against IPA at the class stage. Under the EEOC’s theory, it would then be entitled not only to injunctive relief but also to punitive damages, so long
9 The EEOC also relies on Warnell v. Ford Motor Co., 189 F.R.D. 383, 387-88 (N.D. Ill. 1999), which adopted the Mitsubishi approach wholesale in a class action pattern or practice case premised on the hostile work environment theory of sexual harassment.
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as the jury found IPA reckless or malicious. To recover compensatory damages, the EEOC would then be required only to present evidence that the individual claimants did not welcome the harassment to which they were exposed. IPA would not be permitted to argue that the harassment a specific claimant experienced was not actionable or that it took appropriate remedial action with respect to a particular claimant, for these elements would be established based on the EEOC’s pattern or practice showing. Rather, IPA’s only defenses to the individual claimants’ damages claims would be to argue that the harassment was not based on sex or that the claimants were not subjectively offended by the conduct.
The court rejects the EEOC’s proposed method of proof because it is legally flawed in numerous respects. As an initial matter, the EEOC overlooks what is, in this court’s opinion, binding Seventh Circuit precedent with regard to the EEOC’s position on punitive damages. In Jefferson v. Ingersoll, 195 F.3d 894, 896-97 (7th Cir. 1999), a class action race discrimination suit, the Seventh Circuit considered whether the district court could certify a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure when the plaintiffs sought not only injunctive relief under the pattern or practice theory, but also punitive and compensatory damages under 42 U.S.C. § 1981a (2006). In holding that the district court could do so “only when monetary relief is incidental to the equitable remedy,” id. at 898, the Seventh Circuit had the following to say about awarding damages on a class-wide basis: “Money damages under § 1981a(b) are neither injunctive nor declaratory, and they do not affect a class as a whole. It is possible for one applicant for employment to recover substantial damages while another recovers nothing (for
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example, because the second person would have been rejected under nondiscriminatory
conditions, or found a better job elsewhere).” Id. at 897.
The court elaborated on this issue in Lemon v. Int’l Union of Operating
Engineers, Local No. 139, AFL-CIO, 216 F.3d 577, 579 (7th Cir. 2000), a case in which a
class of plaintiffs sued a union for allegedly administering an employee referral service in
a discriminatory fashion. The Seventh Circuit was faced with the same issue as in
Jefferson—namely, the applicability of Rule 23’s certification requirements to a pattern
or practice case in which section 1981a damages were also sought (the district court had
decided the certification question before Jefferson was issued). Id. Regarding damages,
the Seventh Circuit stated as follows:
Damages can be awarded only after proof of discrimination and injury specific to the individual plaintiff, so deciding the damages claims depends on an individualized analysis of each class member’s circumstances and requires additional hearings to resolve the disparate merits of each individual’s case. Even if the plaintiffs prove that [the defendant] administered the referral hall in a discriminatory manner and won injunctive and declaratory relief on that ground, each individual plaintiff pursuing damages claims still would need to establish that [the defendant’s] discrimination caused her personal injury and would need to show the magnitude of the injury to determine compensatory damages. Similarly, to win punitive damages, an individual plaintiff must establish that the defendant possessed a reckless indifference to the plaintiff’s federal rights—a fact-specific inquiry into that plaintiff’s circumstances.
Id. at 581 (citations omitted) (emphasis added).
Both Jefferson and Lemon relied heavily on Allison v. Citgo Petroleum Corp., 151
F.3d 502 (5th Cir. 1998), yet another race discrimination class action in which equitable
relief as well as section 1981a damages were sought. Id. at 407-08. There, the Fifth
Circuit rejected the plaintiffs’ attempt to seek class-based compensatory and punitive
damages. Id. at 417-18. With respect to compensatory damages, the court stated that “by
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requiring individualized proof of discrimination and actual injury to each class member, compensatory damages introduce new and substantial legal and factual issues” and therefore cannot be awarded based on a pattern or practice finding. Id. at 417.
As to punitive damages, the court assumed arguendo that such damages could be awarded on a class-wide basis—although the court pointed out that the plain language of section 1981a might be read to preclude such relief. See id. (noting that punitive damages are available under section 1981a only when the employer has acted with malice or reckless indifference to the federal rights of an “aggrieved individual”). Nonetheless, the court noted that the possibility of a class-wide punitive damages award would exist only “where the entire class or subclass is subjected to the same discriminatory act or series of acts.” Id. Such was not the case in Allison; as the court stated, “The plaintiffs challenge broad policies and practices, but they do not contend that each plaintiff was affected by these policies and practices in the same way.” Id. The court further found that “[p]unitive damages cannot be assessed merely on a finding that the defendant engaged in a pattern or practice of discrimination” because “[s]uch a finding establishes only that there has been general harm to the group and that injunctive relief is appropriate.” Id.
The Allison court also noted that in BMW v. Gore, 517 U.S. 559, 573-80 (1996), the Supreme Court held that punitive damages must be reasonably related to the reprehensibility of the defendant’s conduct and the amount of compensatory damages awarded (the Court has since reiterated its position on this issue in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)). Allison, 151 F.3d at 417-18. Because compensatory damages must be awarded on an individual basis, “punitive damages must
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be determined after proof of liability to individual plaintiffs at the second stage of a pattern or practice case, not upon the mere finding of general liability to the class at the first stage.” Id. at 418. The court therefore declined to allow the plaintiff class to seek class-based punitive damages. Id.
Although Jefferson, Lemon, and Allison all dealt with class certification issues, the court concludes that they foreclose the EEOC’s request that punitive damages be determined in Phase I. The Supreme Court has stated that the substantive standards applicable to pattern or practice actions brought by the EEOC are the same as those that apply to class actions brought by private plaintiffs, Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 n.9 (1984), and the court cannot discern any reason (the EEOC does not articulate one) to treat this case differently than the class cases considered by the Seventh Circuit. Although the Seventh Circuit has not explicitly passed judgment on the question of whether punitive damages can be awarded on a class basis, it has certainly indicated its leaning—based on Allison—in Jefferson and Lemon. Furthermore, there is no question that the claimants in this case were not subject to the same discriminatory act or series of acts. Rather, as in Allison, each of the EEOC’s 113 claimants alleges different facts in support of her claim.
The EEOC’s reliance on Palmer v. Combined Ins. Co. of Am., 217 F.R.D. 430, 438-39 (N.D. Ill. 2003) is thus misplaced, for in Palmer the class plaintiffs sought only punitive, not compensatory, damages, and their allegations of discrimination were premised on the same basic series of acts. Based on the potential exception left open by Allison, the court allowed the plaintiffs to attempt to prove class-wide punitive damages because it found that individualized assessments might not be required to determine the
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punitive damages award and that such an award could thus possibly be distributed on a pro rata basis. Id. at 439. This case, however, is not the “rare exception” in which individualized inquiries are unnecessary, like Palmer. Id. It is entirely possible that one claimant will recover punitive damages while another will not (for instance, because IPA took proper remedial action to correct an individual instance of harassment)—precisely what the Seventh Circuit was concerned with when it refused to allow class-based punitive damages in Jefferson and Lemon. Punitive damages are therefore not a common question that can be resolved as to all 113 claimants, and such damages cannot be premised on a mere pattern or practice finding, which authorizes only prospective relief under Teamsters. Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 361 (1977).
Accordingly, the court rejects the EEOC’s argument, based on Dial, that punitive damages should be determined in Phase I. In this case, the jury will consider punitive damages at the individual stage, and will make a determination as to whether IPA was reckless or malicious with respect to the federal rights of each individual claimant. See Lemon, 216 F.3d at 581. This will allow the jury to make the fact-specific determinations necessary for each claimant, and will also allow the court to ensure that the Supreme Court’s concerns regarding punitive damages articulated in Gore and State Farm are met. The court recognizes that some of the questions pertinent to the determination of punitive damages overlap with the pattern or practice evidence that will be offered at Phase I. See Bruso v. United Airlines, Inc., 239 F.3d 848, 857-59 (7th Cir. 2001) (employer may avoid punitive damages if it proves it made a good faith effort to comply with Title VII by implementing an anti-discrimination policy). However, as discussed below, this case will
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be tried by one jury, and therefore clear jury instructions in conjunction with effective advocacy should alleviate the EEOC’s concerns that the jury will be confused by the overlapping issues.
The court also finds several flaws in the EEOC’s proposed adaptation of the Teamsters pattern or practice method of proof to the hostile work environment scenario. Specifically, the court rejects the EEOC’s contention that the objective element of the individual plaintiffs’ hostile work environment claims is definitively established at the pattern or practice phase. According to the EEOC, “a woman is a victim of a company’s pattern or practice of sexual harassment (and entitled to damages if she was subjectively offended), although the incidents of harassment she experienced may not be independently severe or pervasive, because it was the company’s practice of tolerating sexual harassment that allowed the harassment to occur.” EEOC’s Renewed Mot. to Bifurcate 13. In other words, the EEOC believes that it can establish the objective component of the individual plaintiffs’ cases—even for claimants who did not themselves experience actionable harassment—by showing that the sexual harassment that occurred company-wide at IPA was sufficiently severe or pervasive that a reasonable person would find the work environment as a whole to be hostile.
The EEOC’s belief that it can meet its burden of proof on the objective element by aggregating the acts of harassment to which all the claimants were subjected to derives primarily from Mitsubishi, which eliminated the objective component of the severe or pervasive test at the individual stage.10 As discussed above, the court’s
10 Importantly, however, Mitsubishi did not hold that the objective element of the individual plaintiffs’ claims was definitively established at the pattern or practice phase, as the EEOC contends. Rather, as discussed above, the Mitsubishi court ruled that the defendant could present evidence to rebut the inference
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rationale for doing so was that “[a]lthough ‘isolated’ or ‘sporadic’ instances of harassment . . . are typically not enough to establish hostile environment sexual harassment, single instances of conduct must be taken together with the continuous pattern of harassment in the workplace, which was established at the pattern or practice phase.” Mitsibishi, 990 F. Supp. at 1081. The court therefore permitted the individual claimants to rely on the objective showing made as to the entire workplace at the pattern or practice phase rather than requiring them to make individual showings that the specific harassment they suffered was objectively severe. Id. at 1079-81.
The court declines to follow Mitsubishi’s approach (and, concurrently, that adopted in Dial and Jenson) because the court does not see how Mitsubishi can be reconciled with the Supreme Court’s hostile work environment jurisprudence. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), the case in which the Supreme Court first articulated what has been the governing hostile work environment test for more than twenty years, the Court stated that “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the terms or conditions of [the victim’s] employment and create an abusive working environment.” Id. at 67 (alteration in original) (citation and internal quotation marks omitted). If the conduct at issue does not reach the Meritor threshold, no Title VII violation has occurred. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (citing Meritor, 477 U.S. at 65).
The Court elaborated on the Meritor test in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1992), holding that sexual harassment is actionable only where the conduct at issue is “severe or pervasive enough to create an objectively hostile or abusive work
drawn from the pattern or practice phase with respect to the objective element once the case reached the individual phase. See Mitsubishi, 990 F. Supp. at 1078.
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environment—an environment that a reasonable person would find hostile or abusive.” Id. The Court also held that the plaintiff must subjectively perceive the environment to be hostile, for otherwise the conditions of the plaintiff’s employment have not actually been altered, regardless of whether a reasonable person would believe them to be. Harris, 510 U.S. at 21-22. Thus, the state of the law following Harris can be summarized as follows: “[I]n order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
In constructing the hostile work environment test, the Court has “take[n] the middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” Harris, 510 U.S. at 21. The objective component is designed to be “sufficiently demanding to ensure that Title VII does not become a general civility code.” Faragher, 524 U.S. at 788 (1998). Thus, courts must “determine whether an environment is sufficiently hostile or abusive by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.’” Id. at 787-88 (quoting Harris, 510 U.S. at 23). But the “mere utterance of an . . . epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21 (alteration in original) (citation and internal quotation marks omitted). Indeed, the objective aspect of the hostile work environment test is meant to “filter out complaints
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attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788 (citation and internal quotation marks omitted). “[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Id. (citation and internal quotation marks omitted).
The Court’s hostile work environment cases demonstrate that it intended to construct a test that would prevent eggshell plaintiffs—those who are offended by comments or actions that would not offend a reasonable person—from recovering under Title VII. The objective inquiry functions as a limitation on suits attacking the “‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). But the EEOC’s proposed method of proof—and, in the court’s opinion, that endorsed by Mitsubishi, et al.—would strip the limitation of its significance in a pattern or practice case. Under the EEOC’s theory, if IPA is found to have a policy of tolerating severe or pervasive sexual harassment, then every woman who was exposed to any form of sexual harassment at IPA, however trivial, would be entitled to damages so long as she was subjectively offended by the conduct she was exposed to. In other words, a woman who experienced only an untoward glance or an isolated remark could nonetheless recover compensatory and punitive damages so long as she was subjectively offended. This scenario is inconsistent with the principles announced in Meritor and Harris, and the court does not believe that the Supreme Court would sanction such a result, even in the context of a pattern or practice case.
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This is not to say, however, that the terms or conditions of employment are not altered when an employer has a policy of allowing severe or pervasive harassment to occur in its workplace. A policy of tolerating such behavior is itself a Title VII violation, but proof of such a policy establishes only that the employer behaved improperly with respect to a protected group in general, and therefore justifies only injunctive relief under Teamsters. That an employer has such a general policy does not mean that every employee who was harassed has been exposed to harassment meeting the Meritor threshold, and thus does not mean that the terms and conditions of employment have been altered for each employee who experienced harassment. It is entirely possible for an employee to work at a business with a policy of tolerating actionable sexual harassment, yet be exposed to harassment in only the most superficial of ways.
Of course, the extent to which a particular employee was exposed to the conduct relied on by the EEOC to prove the company’s hostile work environment (at the pattern or practice phase) is relevant to that employee’s individual hostile environment claim. But this is only to say, as Harris instructed, that the totality of each employee’s circumstances, not isolated instances, determine whether sexual harassment is actionable. The court therefore agrees with Mitsubishi that the work environment as a whole may be relevant to an individual claimant’s experience, see 990 F. Supp. at 1081, but disagrees that an individual claimant can satisfy her burden on the objective element by aggregating all claimants’ experiences. Instead, the court will focus on the conduct to which each individual claimant was exposed. This approach is more consistent with the Court’s admonition in Meritor and Harris that a Title VII violation occurs only when the
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harassment to which a particular claimant is exposed is so severe or pervasive that a reasonable person would be offended.
The court therefore agrees with IPA that the claimants cannot be relieved of their burden to make an objective showing at the individual phase of this lawsuit if the EEOC prevails on the pattern or practice aspect of this case in Phase I. An objective showing will be required at both Phase I and Phase II. At Phase I, the EEOC will be required to prove that a reasonable person would find the sexual harassment occurring globally at IPA so severe or pervasive that the work environment as a whole was hostile or abusive toward women. At Phase II, the EEOC must also show that the harassment to which each individual claimant was exposed is severe or pervasive enough to be actionable.
The court also rejects the burden-shifting framework adopted by Mitsubishi and Dial and advocated by the EEOC here. As discussed above, both Mitsubishi and Dial ruled that the burden of production on all elements of the individual plaintiffs’ claims would be shifted to the defendant at the individual stage based on the pattern or practice finding (although Dial refused to shift the burden on the subjective element, as in Mitsubishi). However, this approach is inconsistent with Teamsters. As the court noted in its prior opinion, Teamsters was a pattern or practice case in which it was alleged that the employer had a policy of discriminating against minorities when making hiring and promotion decisions. Int’l Profit Assocs., Inc., 2007 WL 844555, at *13 (citing Teamsters, 431 U.S. at 328-29). The court’s decision to shift the burden of production to the employer once the case reached the individual stage was based on two considerations: (1) if the employer had a policy of making employment decisions on the basis of discriminatory criteria (which had already been proven at the pattern or practice stage), it
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became more likely that specific decisions made during the time the policy was in place were also based on discriminatory criteria; and (2) if not so motivated, the employer was more likely to have access to evidence demonstrating why not. Teamsters, 431 U.S. at 359 n.45. Thus, the Court held that the primary inquiry at the individual stage would be whether the individual minority claimants applied for jobs or promotions while the policy was in place. Id. at 361-62. Unless the employer came forward with evidence demonstrating otherwise, it could be presumed, based on the pattern or practice finding, that the claimants had been injured by the discriminatory policy. Id.
The Teamsters burden-shifting framework is logical in the context of a discrimination-in-hiring case, where the primary question at the individual stage is whether the claimants were subject to the discriminatory policy. Id.; see also Lemon, 216 F.3d at 581 (stating, in class action suit alleging racial discrimination, that a pattern or practice finding justifies injunctive relief, but if individual claimants want to recover damages they must also demonstrate that they were subject to the employer’s discriminatory policy). But the Teamsters framework cannot be applied in a straightforward fashion to a hostile work environment case. As discussed above, proof that the employer had a policy of tolerating unlawful sexual harassment does not necessarily make it more likely that any particular claimant was subject to actionable sexual harassment. Rather, a particular claimant could have experienced only mundane comments, even though the employer had a practice of tolerating far more objectionable actions. Thus, to remain consistent with the goals of Title VII, as articulated by the Supreme Court, each claimant must demonstrate that the harassment she experienced meets the objective threshold of Meritor and Harris. Nor would the employer be in a
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better position than the employee to demonstrate that the harassment experienced by a given plaintiff was not sufficiently severe or pervasive. To the contrary, each individual claimant should have knowledge of the specific harassment she experienced, and the relevant inquiry is whether this conduct, taken as a whole, would render the work environment hostile to a reasonable person. Thus, shifting the burden on the objective element to the employer at the individual phase does not make sense under Teamsters.
The same follows with respect to the subjective element. The subjective inquiry is an inherently personal one, and, as the Mitsubishi court said, it is a relatively minimal burden in the first place. 990 F. Supp. at 1078. Thus, each individual claimant must establish that she found the sexual harassment she experienced to be hostile or abusive. Each claimant should also be required to bear the initial burden of showing that the harassment she experienced was based on sex (which is also not an onerous burden). Of course, the employer is entitled to then offer a legitimate non-discriminatory reason for the harassment, as in any other Title VII case.
It is appropriate, however, to shift the burden on the negligence element of the individual plaintiffs’ claims to IPA once this case reaches Phase II. As noted above, the applicable standard for pattern or practice liability in this case is whether IPA knew or should have known that severe or pervasive harassment was occurring at its offices in Buffalo Grove but failed to take adequate steps to address the problem on a companywide basis. The standard for employer liability in an individual hostile work environment case is typically the same: the plaintiff must prove that the employer was on notice of the conduct but did not take appropriate action to stop it. See Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (setting forth standard for employer liability when
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harassment is perpetrated by plaintiff’s co-worker). A showing that IPA was negligent with respect to sexual harassment in general justifies an inference that it was negligent in specific instances. As the Seventh Circuit has stated, “If the harassment is pervasive, it can be presumed, subject . . . to rebuttal, to have come to the attention of someone authorized to do something about it.” Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997).
Pervasive harassment is precisely what the EEOC will try to establish at Phase I. If the EEOC is successful, it will have proved that IPA was on notice that systemic sexual harassment was occurring in its offices but did not take proper measures to prevent it. Consistent with Teamsters, such a finding makes it more likely that IPA knew or should have known of individual instances of harassment; an employer cannot escape liability by remaining willfully ignorant of individual instances of harassment when it knows that harassment is occurring regularly. See, e.g., Wilson v. Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999) (when work environment is permeated with pervasive sexual harassment, employer may be presumed to have notice of specific instances). A finding that an employer has a policy of tolerating sexual harassment in general also makes it more likely that the employer tolerated specific instances of harassment. And if IPA was not negligent with respect to a particular claimant—for example, because IPA had no reason to know about a single discrete incident perpetrated by a claimant’s co-worker that went unreported by the claimant11 or because IPA took extreme steps to rectify a particular
11 The Seventh Circuit has held that an employee’s failure to lodge a complaint against an alleged harasser does not preclude a harassment suit, but may be properly considered by the trier of fact in determining the employer’s negligence. Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997). Of course, the pervasiveness of sexual harassment at the business in general and the extent of the employer’s reporting procedures may also properly be considered by the jury in determining whether the employer was on notice of a particular instance, for the ultimate inquiry is whether the employer had reason to know about the harassment at issue. Id.
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instance of harassment, despite its general policy of tolerance—then IPA is in the best position to prove it.12 Thus, a shift in the burden of production on the negligence element at Phase II is consistent with Teamsters. See 431 U.S. at 359 (“Presumptions . . . are often created to reflect judicial evaluations of probabilities and to conform with a party’s superior access to the proof.”).
While the court rejects the EEOC’s proposed method of proof, the court does agree with the EEOC that bifurcation is necessary in this case. Not only did the Supreme Court endorse a bifurcated approach to pattern or practice cases in Teamsters, 431 U.S. at 361, but bifurcation is proper here because the court will require a jury finding on the pattern or practice aspect of the case before the jury considers the individual claims so that the court can determine whether to shift the burden of production on the negligence element of the individual claimants’ cases to IPA. Such an approach will not only be more efficient, but will work no prejudice on IPA because IPA will have a full opportunity to rebut not only the EEOC’s pattern or practice case but also each element of the individual class members’ claims. See Fed. R. Civ. P. 42(b). Clear jury instructions will prevent IPA from being unfairly prejudiced by the cumulative effect of the Phase I evidence at Phase II.
Unlike Mitsubishi, however, the court will use a single jury at trial. Although the court does not accept IPA’s contention that separate juries for Phase I and Phase II would run afoul of the Seventh Amendment, see, e.g., Houseman v. United States Aviation Underwriters, 171 F.3d 1117, 1126 (7th Cir. 1999) (“While both juries can examine
12 If the harassment experienced by a particular claimant was perpetrated by a supervisor, rather than a coworker, then IPA will already bear the burden of establishing the Farragher/Ellerth affirmative defense, assuming the defense is available; otherwise, it will be held strictly liable. Faragher v. Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
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overlapping evidence, they may not decide factual issues that are common to both trials and essential to the outcome.”), using one jury is a more effective method of adjudicating this case. A single jury will be more capable of considering the full implications of IPA’s policy of tolerating sexual harassment, if proven, and will obviate the need for lengthy preliminary instructions before the individual claims are considered.
The court does not accept the EEOC’s contention that using a single jury will be unmanageable given that it intends to introduce the testimony of approximately 40 class members during the pattern or practice stage and testimony from all 113 individual claimants at the individual stage. According to the EEOC, a single trial could take as long as three months. In the court’s opinion, the trial of this case will be onerous and time-consuming regardless of the method used. But the EEOC’s concerns may be partially misplaced. If IPA is correct that many of the 113 claimants do not have viable individual claims, substantially less time will be needed to try Phase II. As IPA will likely be renewing its motions for summary judgment in light of the framework set forth here, it will be far more clear how much time will be needed for trial after the court rules on IPA’s motions. Of course, this case could proceed to trial much more quickly if, as IPA suggests, the EEOC simply withdrew its individual damage claims with respect to the claimants who cannot meet the standard set forth in this opinion.
In summary, the court rejects the EEOC’s proposed method of proof. This case will be governed by the following legal framework, which is subject to modification if necessary as trial approaches but which will serve as a general method of proof for purposes of addressing dispositive motions and preparing for trial. At Phase I, the EEOC must establish by a preponderance of the evidence that the sexual harassment that
32

occurred at IPA during the relevant time period, taken as a whole, was so severe or pervasive that a reasonable woman would find the work environment at IPA to be hostile or abusive. Phase I will focus on only the objective aspect of Meritor and Harris, as the court agrees with Mitsubishi that the claimants’ subjective perception of the conduct to which they were exposed is not relevant to the determination of whether IPA fostered a discriminatory policy toward women in general. 990 F. Supp. at 1076. At Phase I, the EEOC must also demonstrate that IPA knew or should have known that regular or systematic sexual harassment was occurring in its offices but did not take adequate steps to address the problem. A finding in the EEOC’s favor at Phase I will allow the court to award prospective relief under Teamsters, and the court will then proceed to Phase II.
At Phase II, the EEOC will be required to prove, by a preponderance of the evidence, that each individual claimant who seeks monetary damages experienced sexbased harassment that an objectively reasonable woman would find severe or pervasive enough to constitute a hostile work environment. The EEOC must also demonstrate that each claimant subjectively perceived the harassment she experienced to be hostile or abusive. The burden of production on the negligence element of the individual class members’ claims, however, will be shifted to IPA if the jury returns a verdict in the EEOC’s favor at the pattern or practice phase. If IPA comes forward with evidence demonstrating that it was not negligent with respect to a particular class member, the burden will shift back to the EEOC to demonstrate that the steps IPA took were inadequate. As discussed above, if the harassment any individual claimant experienced was perpetrated by a supervisor rather than a co-worker, IPA will bear the burden of establishing an affirmative defense to its liability for the supervisor’s harassment, if
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applicable; if IPA cannot do so, it will be held strictly liable for such harassment so long as the EEOC meets its burden on the other elements. The EEOC must also make individual showings with respect to the amount of compensatory and punitive damages to which each claimant is entitled. If punitive damages are awarded, the court will closely examine each award to ensure that the parameters of Gore and State Farm are met.
II. CONCLUSION In conclusion, the EEOC’s renewed motion for bifurcation is granted in part and denied in part. The trial of this case will be bifurcated into two phases, but will be tried by one jury. The court rejects the EEOC’s proposed method of proof and holds that the EEOC must establish its case according to the legal framework set forth herein.
ENTER: _________/s/__________________ JOAN B. GOTTSCHALL United States District Judge DATED: October 23, 2007
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 </s> Case: 1:01-cv-04427 Document #: 486 Filed: 07/14/08 Page 1 of 18 PageID #:3692

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION et )

al.,

)

)

Plaintiffs, )

)

v.

)

)

INTERNATIONAL PROFIT

)

ASSOCIATES, INC.

)

)

Defendant. )

Case No. 01 C 4427 Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Defendant International Profit Associates, Inc. (“IPA”) has moved for summary

judgment against individual claimants Nos. 6, 65, 89, 93, 99, and 170 in this class action

suit brought by the Equal Employment Opportunity Commission (the “EEOC”). For the

reasons set forth below, IPA’s motions for summary judgment with respect to Claimants

Nos. 89, 99, and 170 are granted. IPA’s motions for summary judgment with respect to

Claimants No. 6, 65, and 93 are denied.

I. BACKGROUND

Pursuant to the court’s memorandum opinion and order of October 23, 2007 (the

“October 23rd Order”), this case has been bifurcated into two phases. See E.E.O.C. v.

Int’l Profit Assocs., Inc., No. 1 C 4427, 2007 WL 3120069, at *17 (N.D. Ill. Oct. 23,

2007). In Phase I, the EEOC must establish by a preponderance of the evidence that the

sexual harassment that occurred at IPA during the relevant time period, taken as a whole,

was so severe or pervasive that a reasonable woman would find the work environment at

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IPA to be hostile or abusive. Id. Furthermore, the EEOC must also demonstrate that IPA knew, or should have known, that regular or systematic sexual harassment was occurring in its offices but did not take adequate steps to address the problem. Id. A finding in the EEOC’s favor at Phase I will allow the court to award prospective relief under Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 (1977), and the court will then proceed to Phase II. Int’l Profit Assocs., Inc., 2007 WL 3120069, at *17.
In Phase II, the EEOC will be required to prove, by a preponderance of the evidence, that each individual claimant who seeks monetary damages experienced sexbased harassment that an objectively reasonable woman would find severe or pervasive enough to constitute a hostile work environment. Id. The EEOC must also demonstrate that each claimant subjectively perceived the harassment she experienced to be hostile or abusive. Id. The burden of production on the negligence element of the individual class members’ claims, however, will be shifted to IPA if the jury returns a verdict in the EEOC’s favor at the pattern or practice phase. Id. If IPA comes forward with evidence demonstrating that it was not negligent with respect to a particular class member, the burden will shift back to the EEOC to demonstrate that the steps IPA took were inadequate. Id. If the harassment any individual claimant experienced was perpetrated by a supervisor, rather than a co-worker, IPA will bear the burden of establishing an affirmative defense to its liability for the supervisor’s harassment, if applicable. If IPA cannot do so, it will be held strictly liable for such harassment so long as the EEOC meets its burden with respect to the other elements. Id.
The EEOC must also make individual showings with respect to the amount of compensatory and punitive damages to which each claimant is entitled. Id. If punitive
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damages are awarded, the court will closely examine each award to ensure that the parameters of BMW v. Gore, 517 U.S. 559 (1996) and State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), as prescribed in the October 23rd Order, are met. Id.
II. ANALYSIS Summary judgment is proper if there is no genuine issue as to any 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. Catrett, 477 U.S. 317, 322 (1986). In order to avoid summary judgment, the nonmoving party (the EEOC in the instant case) is required to set forth “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Furthermore, it must produce more than a scintilla of evidence in support of its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Moreover, summary judgment standards are applied with greater scrutiny in employment discrimination cases, in which intent and credibility are crucial issues. See Talanda v. KFC Nat'l Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998). In the instant case, the court will approach each motion for summary judgment with respect to an individual claimant as though the court has already found in Phase I that the EEOC has proved (by a preponderance of the evidence) that sexual harassment occurred at IPA during the relevant time period and, taken as a whole, it was so severe or pervasive that a reasonable woman would find the work environment at IPA to be hostile or abusive. Furthermore, the court will presume that the EEOC has also demonstrated that IPA knew, or should have known, that regular or systematic sexual harassment was occurring in its offices but did not take adequate steps to address the problem. To succeed in its instant motions for summary judgment with respect to each of the
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individual claimants, IPA must demonstrate that there is no genuine issue of material fact concerning: (1) whether each claimant experienced sex-based harassment that an objectively reasonable woman would find severe or pervasive enough to constitute a hostile work environment; and (2) whether each claimant subjectively perceived the harassment she experienced to be hostile or abusive. Since the latter burden is not an onerous one, it is the former upon which the court will focus its analysis.
As an initial matter, the EEOC argues that because (for purposes of these motions for summary judgment) the court presumes that IPA has been found liable for maintaining a pattern or practice of severe and pervasive sexual harassment to which its female workers were collectively subjected, the analysis of the individual claimant’s claims is different from that of a woman filing an individual claim. The EEOC suggests, by way of example, that an inference that a certain behavior constitutes a sexual proposition might be reasonable under the court’s analysis in the present circumstances whereas it might be unreasonable in an individual suit.
Title VII's prohibition against discrimination in employment on the basis of sex encompasses sexual harassment that is sufficiently severe or pervasive so as to alter the employee's terms or conditions of employment. See Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 73 (1986); Bernier v. Morningstar, Inc., 495 F.3d 369, 373 (7th Cir. 2007); see also Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir. 2007) (“One of the ways in which Title VII's prohibition against sex discrimination in the terms and conditions of employment may be violated is through sexual harassment that is either severe or pervasive enough to create an abusive working environment”). The test for determining whether sexual harassment has reached the point of affecting terms and
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conditions of employment inquires whether the complaining person: (1) was subject to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on his or her sex; (3) the harassment had the effect of unreasonably interfering with her work performance in creating an intimidating, hostile, or offensive working environment that seriously affected her psychological well-being; and (4) there is a basis for employer liability. Benders v. Bellows and Bellows, 515 F.3d 757, 768 (7th Cir. 2008); Valentine v. City of Chicago, 452 F.3d 670, 677 (7th Cir. 2006); see also Bernier, 495 F.3d at 373. The court presumes that the claimant, for the purposes of this motion for summary judgment, has prevailed in Phase I, and therefore the claimant’s burden of meeting the requirements for establishing employer liability, as described above in element (4) has already been satisfied.1
The court’s October 23rd order establishes that each claimant bears the burden of individually establishing that she was subject to sexual harassment under both the objective and subjective standards recited above. However, that does not mean that the court, when examining the nature and severity of the harassment claims of each claimant in Phase II, must turn a blind eye to the findings of Phase I concerning the existence of pervasive and severe hostile environment. If a claimant has been exposed to all or most of the incidents proven by the EEOC in Phase I, that claimant will have little or no burden on the objectively severe and pervasive element in Phase II. Furthermore, even if an individual claimant was not the direct object of a sexually harassing act, but was
1 A plaintiff attempting to hold her employer liable for the actions of a co-worker, “bears the burden of showing that the employer knew of the problem (usually though not always this requires the employee to show that a complaint was made) and that the employer did not act reasonably to equalize working conditions once it had knowledge.” Dunn v. Washington County Hospital, 429 F.3d 689, 691 (7th Cir. 2005)
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subject to an atmosphere that was objectively and subjectively sufficiently hostile so as to alter the working environment, that may be enough, in the context of the workplace environment established in Phase I, to survive a motion for summary judgment.
Incidents directed at others and not at the claimant have relevance in demonstrating the existence of a hostile work environment. Gleason v. Mesirow Fin. Corp., 118 F.3d 1134, 1144 (7th Cir. 1997); see also Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995). An individual could be in the “target area” of harassment, i.e., a member of a group being vilified, even if not singled out, and, if the harassment is sufficiently severe and pervasive, still bring an actionable claim of sexual harassment. Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007). Target area harassment, as defined by the Seventh Circuit, need not include an intention of causing distress or offense. Id. A working environment may be deeply offensive or hurtful to women “even though the men who created it were merely trying to please themselves and were thus guilty of insensitivity rather than aggression.” Id.; see also Markham v. White, 172 F.3d 4486, 492 (7th Cir. 1999). Although the severity and pervasiveness of the alleged hostile work environment must be viewed in the totality of the circumstances, the creation of a hostile work environment is actionable under Title VII when the hostility is to a group (or specific members of a group), such as women, who are protected by the statute. Yuknis, 481 F.3d at 554. A. Defendant No. 6
Defendant No. 6 (“No. 6”) was employed in the Inside Sales Department at IPA for approximately six weeks from November to mid-December 2000. During her orientation at IPA, No. 6, who was the only woman present, claims that she was
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Case: 1:01-cv-04427 Document #: 486 Filed: 07/14/08 Page 7 of 18 PageID #:3698
subjected to offensively sexist language concerning the inability of women to make up their minds, and references to another woman (not present) as a “bitch.” Subsequently, No. 6 alleges that she frequently overheard male co-workers talking among themselves about the various physical attributes of sundry “hot babes” of their acquaintance. According to No. 6, one man, allegedly a star performer in the Sales Department, was in the habit of yelling “fucker, cock-sucking bitch, cunt, whore” whenever a prospective client turned him down (presumably not at the prospective client); this could happen several times a day. No. 6’s complaints about this behavior to her supervisor allegedly went unheeded.
Furthermore, No. 6 claims that one of her supervisors, Richard Gottleib (“Gottleib”), routinely stared at her breasts during their frequent office meetings. Gottleib also allegedly once massaged her shoulders and neck (from which she quickly recoiled), wondered aloud how she would look in a dress, asked her to wear a dress to work, and also asked her to bring him a picture of herself.
Because the IPA company policy against smoking was allegedly not enforced in the Sales Department, No. 6 took to wearing a portable air purifier about her neck. At one point, Gottleib allegedly grabbed the device and inhaled from it; in doing so he allegedly touched No. 6 and placed his head inappropriately close to No. 6’s poitrine. No. 6 complained of Gottleib’s behavior to the Human Resources Dept., which acknowledged that Gottleib’s behavior was inappropriate and stated that Gottleib had been talked to before concerning his actions.
In one of the more bizarre episodes related by No. 6, a male co-worker allegedly dropped his pants to his knees for a minute or two in a room full of people. When No. 6
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Case: 1:01-cv-04427 Document #: 486 Filed: 07/14/08 Page 8 of 18 PageID #:3699
inquired as to what he was doing, he stated that he was tucking in his shirt and that he “didn’t know anybody was here.” No. 6 complained of this behavior to Human Resources as well.
Finally, No. 6 alleges that Tony Jones (“Jones”) (another supervisor) and his fiancée, who was also an employee, engaged in frequent “heavy kissing and necking” in the middle of the office while other employees were making phone calls and working. No 6 contends that Jones’ fiancée would spend only 20 or 30 minutes in the office (much of that time in the throes of passion with Jones) and yet ended up with six sales, when others in the Sales Department had to work longer and harder to achieve similar results. According to No. 6, the fiancée was given the best leads as a result of her romantic relationship with Jones.
“There is no bright-line test for determining when a workplace becomes objectively hostile. There are, however, a number of factors courts must consider, ‘including the frequency and severity of conduct, whether it is threatening and/or humiliating or merely offensive, and whether the harassment unreasonably interferes with an employee's work.’” Valentine, 452 F.3d at 681 (quoting Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975-76 (7th Cir. 2004)). In the case of discriminatory statements, the court must assess the frequency of their use, as well as whether the remarks were stated directly to the plaintiff or whether the plaintiff heard them secondhand. Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271 (7th Cir. 2004).
With respect to No. 6’s complaints, the totality of the circumstances, when combined with a Phase I finding of a severe and pervasive hostile work environment, provides a sufficient combination of target area harassment combined with actions
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Case: 1:01-cv-04427 Document #: 486 Filed: 07/14/08 Page 9 of 18 PageID #:3700
directed against No. 6 to provide a genuine issue of material fact concerning whether she experienced sex-based harassment that an objectively reasonable woman would find severe or pervasive enough to constitute a hostile work environment. Her co-workers’ comments about their amorous exploits, and their use of offensive language including vulgarities with sexual content, while obnoxious and contemptible, were not directed at No. 6, but certainly fall within the target area of sexual harassment. Yuknis, 481 F.3d at 554. Likewise, the bizarre “dropped trouser” incident was not aimed directly at No. 6 but could be found to be objectively offensive to a reasonable woman, when taken in the context of a severe and pervasive hostile work environment.
The behavior of Gottleib presents an instance of an act directed against No.6. The two touching incidents that No. 6 describes (the air purifier grab-and-sniff and the abortive neck massage) were not directly sexual, nor were they directly threatening or repeated. However, given a pervasive and severely hostile workplace environment, such acts reasonably establish a genuine issue of material fact as to whether a reasonable woman would find these acts, in conjunction with the others listed above, as constituting sexual harassment.
In evaluating the objective offensiveness of a plaintiff's work environment, the court must consider all of the circumstances, including frequency and severity of the conduct, whether it is humiliating or physically threatening, and whether it unreasonably interferes with an employee's work performance. Luckie v. Ameritech Corp., 389 F.3d 708, 714 (7th Cir. 2004). Taken as a whole, and in the context of what the court must presume the EEOC has proven in Phase I for purposes of this motion, these incidents create a genuine issue of material fact as to whether a reasonable woman would have
9

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found them to be so pervasive or severe so as to create an objectively hostile workplace environment. The court consequently denies IPA’s motion for summary judgment with respect to No. 6. B. Claimant No. 65
Claimant No. 65 (“No. 65”) worked in the Inside Sales Department of IPA for approximately four weeks from June 8, 2000 through July 6, 2000. As was the case with No. 6, No. 65 claims she was subjected daily to hearing her male co-workers talk amongst themselves about their various sexual exploits. Furthermore, some of her coworkers commented on the perfume she was wearing, and one said “That’s a hot suit you have,” in an allegedly suggestive manner.
No 65 also related that a supervisor put an arm around her shoulder and told her that he would “show her the ropes.” No. 65 alleges that this occurred immediately after the same supervisor had been discussing his sex life with another co-worker, and that she felt that he was insinuating that she would have to have sex with someone to “learn the ropes.” No. 65 thus claims that the offer was tantamount to a sexual proposition.
No. 65 cites Quantock v. Shared Marketing Services, Inc. in support of her contention that the alleged proposition constitutes conduct sufficiently severe and pervasive as to alter the conditions of employment. 312 F.3d 899, 904 (7th Cir. 2002). No. 65’s case, however, is distinguishable from Quantock. In that case, a supervisor made multiple explicit demands directly to the plaintiff for various specific sex acts. Id. at 904. Moreover, the same supervisor had some time previously “also grabbed her breasts and forcibly kissed her.” Id. at 902. The Seventh Circuit found that this behavior was considerably more “severe” than the type of “occasional vulgar banter, tinged with
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sexual innuendo” that had been deemed to fall short of the hostile workplace standard. Id. (citing McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 480 (7th Cir. 1996)) (finding that three sexually suggestive comments by a co-worker did not unreasonably interfere with the plaintiff's working environment).
The court finds that, standing by itself, the remark made by No. 65’s supervisor falls more into the category of “sexually suggestive” comments and fails to rise to the level of pervasive and severe conduct that substantially alters the conditions of employment. However, given the totality of the circumstances, i.e., a finding in Phase I that the level of hostility in the work environment at IPA was pervasive and severe, and her co-workers’ continuous bragging about their sexual experiences, there is a genuine issue of material fact as to whether No. 65 was objectively subjected to a hostile work environment. IPA’s motion for summary judgment with respect to No. 65 is consequently denied. C. Claimant No. 89
Claimant No. 89 (“No. 89”) was employed at IPA for approximately two weeks in January, 2001. No. 89 claims that she saw an unidentified male and female employee flirt with each other and overheard the male employee address the female employee as “honey” and “sweetie.” No. 89 also claims that she saw 3-4 pictures in the cubicles of other employees depicting females seductively posed in bikinis. She claims that she overheard male employees referring to women by using the word “bitch” when speaking to each other, although she states that she was never addressed as “bitch.”2 No. 89 further claims that she observed unidentified female employees being patted on the
2 For example, No. 89 allegedly heard male managers use expressions such as “I fucked that bitch last night,” “That bitch made me mad,” That bitch gets on my nerves, man,” and “Man, fuck that bitch.”
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buttocks by unidentified male employees. Finally, No. 89 claims that she saw graffiti on the walls of two cubicles with the words “bitch” and “fuck.”
The presence of pornography in a work place can be one factor courts may consider as part of a hostile work environment claim. See, e.g., Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995) (actionable sexual harassment may include exposure to pornographic pictures); Greene v. A. Duie Pyle, Inc., 371 F. Supp. 2d 759, 762 (D. Md. 2005). However, it is unlikely that a calendar or poster featuring women in bikinis, which can be purchased in almost any major chain bookstore, achieves the level of prurience required to constitute “pornography.” No. 89 claimed that although she could see the women’s breasts, they were all wearing “garments” and that their nipples were not visible. Moreover, her male coworkers’ comments about “bitches,” not addressed to No. 89, appear to be less “uninvited sexual solicitations; intimidating words or acts; obscene language or gestures,” than “vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.” Baskerville, 50 F.3d at 430. As such, a reasonable jury could not find that there is sufficient evidence to find that No. 89 was subjected to sexual harassment through a hostile work environment. IPA’s motion for summary judgment with respect to No. 89 is consequently granted. D. Claimant No. 93
Claimant No. 93 (“No. 93”) makes a number of allegations similar to the other claimants above, but alleges sufficient additional facts to establish a hostile workplace environment. No. 93 alleges that her managers, Fedel St. James (“St. James”) and John Bear (“Bear”) made numerous comments about how sexy they found her legs, including the comment that No. 93 should “come up and wrap them around me.” Even more
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seriously, No. 93 alleges that on one occasion a male co-worker approached her from behind and grabbed her buttocks in front of other employees while she was retrieving a soda from a machine. No. 93 also claims that another male rubbed his arm against her buttocks on another occasion. Another male also once asked No. 93 if she would be interested in working for his brother’s stripping business. As a result of these incidents, No. 93 averred that she “felt like red meat to a pack of wolves.”
IPA cites Adusumilli in support of its argument that even the intentional grabbing of No. 93’s buttocks was not sufficiently serious to create a hostile work environment. 164 F.3d at 362. However, the touching incident in Adusumilli took the form of “relatively mild form of a poke and occurred only once.” Id. In the instant case, the act was repeated and was designed to sexually humiliate No. 93 in front of her coworkers. Although acts that are “too tepid or intermittent or equivocal to make a reasonable person believe that she has been discriminated against on the basis of her sex” fall within the “safe harbor” established by the Seventh Circuit, the court finds that these egregious acts, combined with the crude sexual invitations addressed directly to No. 93, cause IPA’s argument to founder short of the harbor entrance. See Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1168 (7th Cir. 1996). Harassment need not be severe and pervasive to impose liability; one or the other will do. Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999). Even a single act of harassment will suffice if it is egregious. See Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999) (single egregious act sufficient to establish hostile work environment); DiCenso v. Cisneros, 96 F.3d 1004, 1009 (7th Cir. 1996); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273-74 & n. 4 (7th Cir. 1991); King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir.
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1990); Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1186-87 (7th Cir. 1986); see also Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir. 1990) (implicitly assuming that a single act is sufficient to establish a hostile work environment).
The behavior described by No. 93 was repeated and egregious. A reasonable jury could therefore find that these acts constituted a hostile work environment and IPA’s motion to for summary judgment with respect to No. 93 is consequently denied. E. Claimant No. 99
Claimant No. 99 (“No. 99”) was 62 year old grandmother when she worked at IPA for two or three months as a Business Coordinator. No. 99 claims that she heard unnamed female employees at IPA set up dates with unnamed male “bosses” to meet in the IPA parking lot and have sex in their vehicles. No. 99 believes that the women who made such dates were “favored” by the bosses, “got away with murder,” and had “certain privileges,” including coming and going from work when they pleased and receiving credit for more sales than they had actually made. No. 99 avers that she did not receive credit for two client appointments that she made while at IPA.3 No. 99 further claims that there were frequent, explicit, sexually-oriented conversations between male managers and female employees, innuendo-laden inquiries by male employees asking if female employees were going to “work late”, and frequent touching of female employees by the males, some of which she believes was unwelcome. No 99 states that she was uncomfortable, disgusted, and offended by the sexually inappropriate behavior that she witnessed.
3 No. 99 does not adduce any facts indicating how serious were the consequences of IPA’s failure to credit her for the two client appointments, nor whether it otherwise affected her earnings or her position in the workplace.
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However, No. 99 denied experiencing, witnessing, or being aware of any sexual harassment at IPA directed against her. Moreover, No. 99 does not state that she complained to IPA managers concerning the behavior. Basically, No. 99 contends that the young female workers who were sexually compliant received favored treatment by IPA, whereas she did not.
No. 99’s claim fails because she cannot demonstrate that the alleged severe and pervasive hostile work environment resulted from any actions that were directed against her because of her sex. To succeed in her claim, No. 99 must establish that: “she was (1) subjected to unwelcome sexual conduct, advances, or requests; (2) because of her sex; (3) that were severe or pervasive enough to create a hostile work environment; and (4) that there is a basis for employer liability.” Erickson v. Wisconsin Dep't of Corr., 469 F.3d 600, 604 (7th Cir. 2006). No. 99 adduces no facts to suggest that she was “subjected to unwelcome sexual conduct, advances or requests” because of her sex, as she does not claim that she was the subject of any of the behavior she witnessed or that any of the behaviors were based upon her sex. Lapka v. Chertoff, 517 F.3d 974, 982 (7th Cir. 2008).
Furthermore, No. 99 cannot legitimately claim that she was in the target area of the offensive conduct because of her gender: a 62-year old man might well have been equally offended by the sexual shenanigans of the younger workers in the IPA workplace and, more importantly, would certainly have been equally disadvantaged if the male IPA managers were favoring their young female paramours. “The fact that one’s coworkers do or say things that offend one, however deeply, does not amount to harassment if one is not within the target area of the offending conduct.” Yuknis, 481 F.3d at 554.
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Furthermore, words having sexual content or connotation do not automatically constitute discrimination that is actionable under Title VII. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). “The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 24 (1993)).
Defining the target area is always context-dependent, but although the alleged flirtations and assignations between co-workers may have contributed to establishing a hostile work environment, they do not achieve the threshold of being so pervasive and severe so as to alter the conditions of employment. Yuknis, 481 F.3d at 555. The more remote or indirect the act claimed to create a hostile working environment, the more remote the inference that the worker’s working environment was actually made unbearable. Id. No. 99’s allegations are too attenuated from that standard to withstand a motion for summary judgment. With the perhaps the exception of her single allegation that she failed to receive credit for two client appointments, No. 99 cannot demonstrate that she was the result of sexual discrimination directed at her because of her gender or that pervasive and severe harassment substantially altered the conditions of her employment. No. 99 does not claim that any sexually offensive behavior was directed at her and, although she is a woman, her relation to the alleged harassing behavior is too remote to withstand a motion for summary judgment.
Because she does not allege any facts to support her argument that she was subjected to a hostile work environment because of her sex, IPA’s motion for summary judgment is granted with respect to No. 99.
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F. Claimant No. 170 Claimant No. 170 (“No. 170”) worked at IPA for four to six months in 2003.
While employed at IPA, according to No. 170, she was subjected to inappropriate comments from her zone manager, Lucas Newhouse (“Newhouse”), on a daily basis. Many of these comments were along the lines of “Act like a whore and you’ll get appointments” and “Sell what you have to sell to get appointments.” At a zone meeting on July 7, 2003, Newhouse made derogatory comments, including “You fucking act like whores and – and sell, sell, sell.” Newhouse also addressed the workers as “fucking stupid” and “fucking losers” No 170 did not understand these comments to be directed at the men in her zone, although men were present when Newhouse spoke. That same day, No. 170 complained of Newhouse’s behavior to the Human Resources Department and both she and Newhouse were shortly thereafter transferred to other zones and Newhouse was possibly demoted. No. 170 stated that she was satisfied with IPA’s response in this regard.
No. 170 also iterates the same factual allegations as No. 99 concerning sexual interactions among co-workers at IPA (i.e., hugging, touching, going out to cars at lunchtime). The only incident that she reports was directed at her (other than the comments made by Newhouse) was when a male co-worker put his arm around her and said “Hey, baby, how you doing?” However, after No. 170 promptly removed his arm from around her, the individual did not bother her again.
No. 170’s complaint about Newhouse was addressed by IPA and the problem solved: No. 170 expressed satisfaction with the way IPA responded and she had no further interactions with Newhouse after the July 7, 2003 incident. Title VII requires
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only that the employer take steps reasonably likely to stop reported harassment, and this IPA apparently did, to No. 170’s satisfaction. Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 536 (7th Cir. 1993). In Saxton, the Seventh Circuit upheld the district court’s finding that uncontested evidence, submitted by the defendant, of corrective action that was “reasonably likely to prevent the misconduct from recurring” was sufficient to support a motion for summary judgment. 10 F.3d at 532; Saxton v. American Tel. & Tel. Co., 785 F. Supp. 760, 767 (N.D. Ill. 1992) (quoting Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990)). As outlined above, the other incidents described by No. 170 do not rise to a level of harassment, even when combined with a Phase I finding against IPA, that is sufficiently pervasive and severe “to alter the conditions of [No. 170's] employment and create an abusive working environment.” Meritor, 477 U.S. at 67. IPA’s motion for summary judgment with respect to No. 170 is consequently granted.
III. CONCLUSION For the reasons set forth above, IPA’s motions for summary judgment with respect to Claimants Nos. 89, 99, and 170 are granted. IPA’s motions for summary judgment with respect to Claimant No. 6, 65, and 93 are denied.

DATED: July 14, 2008

ENTER:
__/s/ ___ ___ JOAN B. GOTTSCHALL United States District Judge

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 </s> Case: 1:01-cv-04427 Document #: 683 Filed: 07/07/09 Page 1 of 108 PageID #:12726

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION et )

al.,

)

)

Plaintiffs, )

)

v.

)

)

INTERNATIONAL PROFIT

)

ASSOCIATES, INC.

)

)

Defendant. )

Case No. 01 C 4427 Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Pursuant to the schedule adopted in this case for streamlining summary proceedings, International Profit Associates, Inc. (“IPA”) has moved for summary

judgment against individual claimants Nos. 2, 7, 15, 17, 21, 37, 39, 43, 46, 55, 56, 57, 58,

61, 69, 72, 78, 88, 104, 107, 108, 113, 134, 137, 139, 147, 149, 157, 164, 166, 167, 169,

172, 175, 178, 180, 186, 187, 188, and 189 in this class action suit brought by the Equal Employment Opportunity Commission (the “EEOC”). For the reasons set forth below,

these motions are resolved as follows.

I. BACKGROUND

The somewhat unusual procedural posture in which the present motions will be

examined is by now familiar to both the parties and the court. In resolving the handful of summary judgment motions that IPA presented prior to the court’s adoption of the

streamlined summary judgment schedule, the court summarized its disposition of

previous issues presented in the case, and explained how the earlier rulings affected the

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parties’respective burdens at summary judgment. See E.E.O.C. v. Int’l Profit
Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *1 (N.D. Ill. 2008). That discussion
also guides the court’s analysis of the present motions (as well as those to be filed and
resolved separately, pursuant to the streamlined schedule) and, for reference, is
reproduced in whole:
Pursuant to the court’s memorandum opinion and order of October 23, 2007 (the “October 23rd Order”), this case has been bifurcated into two phases. See E.E.O.C. v. Int’l Profit Assocs., Inc., No. 1 C 4427, 2007 WL 3120069 at *17 (N.D. Ill. Oct. 23, 2007). In Phase I, the EEOC must establish by a preponderance of the evidence that the sexual harassment that occurred at IPA during the relevant time period, taken as a whole, was so severe or pervasive that a reasonable woman would find the work environment at IPA to be hostile or abusive. Id. Furthermore, the EEOC must also demonstrate that IPA knew, or should have known, that regular or systematic sexual harassment was occurring in its offices but did not take adequate steps to address the problem. Id. A finding in the EEOC’s favor at Phase I will allow the court to award prospective relief under Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 (1977), and the court will then proceed to Phase II. Int’l Profit Assocs., Inc., 2007 WL 3120069 at *17.
In Phase II, the EEOC will be required to prove, by a preponderance of the evidence, that each individual claimant who seeks monetary damages experienced sex-based harassment that an objectively reasonable woman would find severe or pervasive enough to constitute a hostile work environment. Id. The EEOC must also demonstrate that each claimant subjectively perceived the harassment she experienced to be hostile or abusive. Id. The burden of production on the negligence element of the individual class members’claims, however, will be shifted to IPA if the jury returns a verdict in the EEOC’s favor at the pattern or practice phase. Id. If IPA comes forward with evidence demonstrating that it was not negligent with respect to a particular class member, the burden will shift back to the EEOC to demonstrate that the steps IPA took were inadequate. Id. If the harassment any individual claimant experienced was perpetrated by a supervisor, rather than a co-worker, IPA will bear the burden of establishing an affirmative defense to its liability for the supervisor’s harassment, if applicable. If IPA cannot do so, it will be held strictly liable for such harassment so long as the EEOC meets its burden with respect to the other elements. Id.
The EEOC must also make individual showings with respect to the amount of compensatory and punitive damages to which each claimant is entitled. Id. If punitive damages are awarded, the court will closely
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examine each award to ensure that the parameters of BMW v. Gore, 517 U.S. 559 (1996) and State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), as prescribed in the October 23rd Order, are met. Id. 2008 WL 4876860 at *1. Bearing in mind these considerations, the court proceeds to analyze the instant motions.
II. ANALYSIS The Seventh Circuit has often described summary judgment as the “put up or shut up”moment in a lawsuit, when each party must show what evidence it has to convince a fact finder to rule in its favor. AA Sales & Associates, Inc., v. Coni-Seal, Inc., 550 F.3d.605, 612 (7th Cir. 2008) (citing Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). As the movant, IPA bears the initial burden of demonstrating that undisputed facts properly in the record entitle it to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986). If IPA meets this burden, EEOC, as the non-movant, must then point to specific record evidence that sufficiently controverts IPA’s version of events to enable a jury to find in EEOC’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If reasonable minds could differ as to the import of the evidence,”the case must proceed to trial. Id. at 25051. The court must view any disputed facts in the light most favorable to EEOC, and it must draw all reasonable inferences from the undisputed facts in EEOC’s favor. Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). Because intent and credibility are typically crucial issues in employment discrimination cases, summary judgment must be approached with caution, and heightened scrutiny of the
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record is appropriate. See Talanda v. KFC Nat. Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998).
A worker suffers sex-based discrimination under Title VII if she is subjected to sexual harassment that is sufficiently severe or pervasive that it alters the terms or conditions of her employment. See Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 73 (1986); Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir. 2007). Whether this standard is met turns on a “constellation of factors,”Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000), including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”Id. at 806-07 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Conduct that is “too tepid or intermittent or equivocal to make a reasonable person believe that she has been discriminated against on the basis of sex”is insufficient to show a hostile work environment. Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998) (quotation omitted). There is no “magic number”of incidents required to establish a hostile environment, however, and even one act of egregious harassment will suffice. Hostetler, 218 F.3d at 808 (citing cases).
In Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995), the Seventh Circuit addressed the types of conduct that may amount to actionable sexual harassment and observed that it is not always easy to draw the line between actionable and non-actionable conduct. The court nevertheless distinguished between general categories of behavior that fall on one side or the other of that line:
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual
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solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1009-10 (7th Cir.1994). On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. Meritor Savings Bank v. Vinson, supra, 477 U.S. at 61, 106 S.Ct. at 2402-03; Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir.1986); Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983). 50 F.3d at 430-31. When it is uncertain on which side of the line the offending conduct lies, the question must be left to the jury. Id. at 431. Baskerville’s taxonomy of harassment is instructive, but it is not exhaustive of actionable conduct under Title VII. Indeed, even conduct that has no sexual content may be regarded as sexual harassment—and actionable as sex discrimination—if it is directed at a worker because of her sex and is sufficiently serious to alter the terms or conditions of her employment. “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (citing Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). The Seventh’s Circuit illustrated this principle in Carr v. Allison Gas Turbine Division, 32 F.3d 1007 (7th Cir. 1994), with the observation that “[i]f because [the claimant] was a woman [the employer] turned down the heat at her work station in order to make her uncomfortable, that would be actionable sex discrimination,” id. at 1011, and again in Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999) (“It makes no difference that the assaults and the epithets sounded more like expressions of sex-based animus rather than misdirected sexual desire although power plays may lie just below the surface of much of the latter behavior as well. Either is actionable under Title VII as long as there is
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evidence suggesting that the objectionable workplace behavior is based on the sex of the target”) (citing Oncale, 523 U.S. at 80). See also Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U.CHI.L.REV 1831, 1833 (2007) (explaining three distinct ways that workplace harassment can be “based on”sex: 1) where sex is the ground or basis for the worker’s harassment (as reflected in the preceding quotation); 2) where the harassment is sexual in content (e.g., the use of “denigrating stereotypes of women and insulting epithets about women”); and 3) where the content of the harassment concerns sexual relations (“in which the woman is being treated as a sexual object, a person available for sexual overtures and likely sexual favors, in a way that is either extortionate (quid pro quo) or intimidating (‘hostile environment’), or both”)).
District courts in this circuit have acknowledged this principle as well. Avdyli v. Barnhart, 05 C 2132, 2007 WL 57601 (N.D. Ill. Jan. 3, 2007 (Manning, J.) (citing Curde v. Xytel Corp., 912 F.Supp.335, 340 (N.D. Ill. 1995) (“We believe the most recent statements by the Seventh Circuit dispel the notion that hostile work environment claims are limited solely to situations of a sexual nature; rather, actionable harassment ‘encompasses all forms of conduct that unreasonably interfere with an individual's work performance or create [ ] an intimidating, hostile, or offensive work environment.’”) (citing Doe v. R.R. Donnelley & Sons, 42 F.3d 439, 443 (7th Cir.1994) (citing Meritor, 477 U.S. at 64) (emphasis added in Curde))); See also C. Geoffrey Weirich, Employment Discrimination Law, Ch. 20 at 593 (3d ed. 2002 Cumulative Supplement) (“Although harassment must be because of gender, it need not be sexual in nature to be actionable.”); Alba Conte, Sexual Harassment in the Workplace, § 3.05[B] at 192 (3d. ed. 2000)
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(“Offensive verbal or physical conduct need not be overtly sexual to be deemed sexual harassment.”).
Finally, a worker may be subject to sexual harassment either as the individual target of hostile or abusive conduct of a sexual nature, or because she is in the “target area”of such conduct. Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007). As the Seventh Circuit explained in Yuknis, “target area”harassment is no less actionable, nor categorically less serious, than individualized harassment. Id. Nevertheless, the offending behavior must affect the aggrieved worker directly, as it does, for example, if she sees or hears it. Id. An “[o]ffense based purely on hearsay or rumor”is generally insufficient to support an individual claim. Id.
The court assumes for the purpose of resolving IPA’s summary judgment motions that EEOC has already proven in Phase I that sexual harassment occurred at IPA during the relevant time period; that taken as a whole, it was sufficiently severe or pervasive that a reasonable woman would have found the work environment to be hostile or abusive; and that IPA knew or should have known that sexual harassment was rampant in its offices but failed to take adequate remedial steps. E.E.O.C. v. Int’l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *2 (N.D. Ill. 2008). Nevertheless, each claimant seeking monetary damages in Phase II must individually prove the elements of her hostile environment claim, namely, that: “(1) she was subject to unwelcome sexual harassment; (2) the harassment was based on sex; (3) the harassment had the effect of unreasonably interfering with her work performance in creating an intimidating, hostile, or offensive working environment that seriously affected her psychological well-being; and (4) there is a basis for employer liability”Benders v. Bellows and Bellows, 515 F.3d
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757, 768 (7th Cir. 2008). Based on the presumed findings of Phase I, the individual claimants are deemed to have demonstrated a basis for employer liability. This means that the EEOC is not required, at this juncture, to point to specific evidence to support employer liability unless IPA claims, with respect to any particular claimant, that it took appropriate steps to correct the harassment she alleges. While EEOC must, pursuant to this court’s prior rulings, demonstrate the existence of a genuine dispute as to whether each claimant’s individual experience rises to the level of actionable harassment, the court is mindful that the totality of the circumstances it must consider in each case includes a presumed finding of severe or pervasive sexual harassment at IPA.
The court is also mindful of each party’s objections to the propriety of its adversary’s evidence. Both sides have moved to strike portions of the factual record, and while the court has denied these motions (or denies them as moot concurrently with the present order), it has carefully considered each side’s objections. The factual accounts below are based on evidence the court deems properly before it.1 Claimant No. 2
Claimant No. 2 was a business coordinator at IPA for approximately four years, from late 1996 to mid-2000. She claims that Keith Link, a colleague who later became a manager, asked her out, then continued to pursue her romantically despite her repeated statements to him that she was not interested. No. 2 claims that Link made comments to her such as, “You want to get laid tonight?”(to which No. 2 responded, “You know that’s never going to happen”) and “why don’t you come on over. I can, you know, give you a good time,”and that Link asked No. 2’s supervisor to find out whether she would go out with him.
1 In some, but not all, instances, the court discusses the parties’evidentiary objections.
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On one occasion, No. 2’s car broke down in IPA’s parking lot, and she asked Link (by then a manager, though not No. 2’s supervisor, whose car was parked next to No. 2’s) whether he would give her a jump. He said he would, but that she would owe him a blow-job. No. 2 assumed Link was joking, and laughed the comment off. As No. 2 was seated in the driver’s seat of her car, preparing to leave after the two had successfully started her car, Link positioned himself between No. 2 and the open car door, which evidently prevented her from closing the door. With his crotch in her face, Link began to unzip his pants and thrust himself forward, repeating, “you owe me a blow job.”No. 2 responded by moving her head back and physically pushing Link away.
The next day, as No. 2 passed Link’s desk on her way into work, Link said to the people in the area, “Oh, there’s [No. 2]. Well don’t do anything for her because she never keeps her promises.” After Link’s comment, No. 2 discussed the parking lot incident with her supervisor, Dmitri Kotsakis, then met with Kotsakis and Tony Jones, then-Director of the Business Coordination Department. No. 2 claims Kotsakis and Jones suggested No. 2 “keep it in the IPA family,”as opposed to taking her complaint about Link to human resources. No. 2 claims she agreed not to go to human resources because Kotsakis and Jones agreed to talk to Link, and because she was fearful that people would talk or laugh behind her back if she took a complaint about a blow job to human resources. Kotsakis and Jones did, in fact, talk to Link, whose sexually offensive conduct and language ceased.
No. 2 also claims that she saw John Burgess, IPA’s Managing Director, comment on a particular female employee’s cleavage and figure. She further claims that another female employee reported to her that Burgess made sexually explicit comments to her.
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No. 2 also heard other managers make comments about women’s intimate body parts as they walked by, and claims that some managers touched women inappropriately at work.
No. 2 further complains that Shawn Fishman, an acting zone manager, used the word “cunt”repeatedly in front of her, despite her request that he not use that word, and even after Kotsakis (to whom No. 2 had complained about Fishman’s use of the word) told him to stop. She also states that she complained to several managers about the sexually explicit “motivational speeches” these and other managers made to the workforce. The speeches contained phrases such as “go out there and grab your balls. Whack your peepee.” No. 2 claims that during a work dispute, she was once called a “prima donna bitch”by a male manager. Occasionally, when women in her “zone” expressed excitement or concerned about something, remarks would be made that they were “code red,”which she understood to mean that they were menstruating. On one occasion, her manager used the speaker phone and announced, “[No. 2], code red. Code red.”
Finally, No. 2 claims that she complained to her manager, David Soskin, that she felt excluded from the “inner circle” at IPA, despite her hard work and good performance. She claims that Soskin responded by suggest that she could get further if she were “a little nicer to some of the top management.” Suspecting this was a sexual innuendo, No. 2 asked, “you mean like a blow job or something?”to which Soskin allegedly responded, “well, I’m not saying for myself or anything,”while shaking his head affirmatively.
IPA asserts that these episodes are neither severe nor pervasive enough to be actionable, nor are they based on sex. The first of these arguments is patently without
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merit. The parking lot incident alone is sufficiently egregious to raise a genuine dispute as to whether a reasonable woman would find the environment to which No. 2 was subjected hostile. Viewing the evidence in the light most favorable to EEOC, Link not only verbally solicited No. 2 for sex, he physically cornered her and placed his genitals in her face, while telling her that she owed him a “blow job.”That Link did not touch No. 2 before she physically pushed him away is immaterial. Having a co-worker force his genitals at one’s face is not conduct that would be anticipated in the workplace, and a reasonable person in No. 2’s position “might well experience that type of behavior as humiliating, and quite possibly threatening.” Hostetler, 218 F.3d 798, 808 (forcibly kissing co-worker and unsnapping her brassiere is actionable conduct). IPA’s argument that No. 2 herself interpreted the incident as nothing more than a “crude joke”is disingenuous, as it ignores substantial portions of No. 2’s testimony.
Although IPA does not explicitly argue that it should escape liability for Link’s conduct based on Kotsakis’s and Jones’s response to No. 2’s complaint, it suggests as much by asserting that Link stopped harassing No. 2 after they spoke to him. While it may be true that Link’s sexually offensive conduct ceased, in light of the egregiousness of his behavior, No. 2’s claim that her managers urged her not to escalate her complaint, and the presumption that IPA did not, as a general matter, take appropriate measures to curtail pervasive workplace harassment, IPA has not demonstrated that its response to this episode was adequate.
IPA’s argument that No. 2’s claims are not based on sex addresses only a portion of her claims, notably ignoring the parking lot episode. As to that incident, IPA does not suggest, nor does the evidence support, that it was based on anything other than sex.
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Because the court finds summary judgment inappropriate as to No. 2 based on the parking lot incident alone, it need not linger on the extent to which her additional allegations support her claim of a hostile work environment, and merely notes in passing that conduct “designed to sexually humiliate [No. 2] in front of her coworkers,”as, for example, the “[No. 2], code red. Code red.”announcement seems to have been, likely falls on the side of actionable harassment, particularly in the context of pervasive sexbased discrimination. See E.E.O.C. v. Int’l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *7 (N.D. Ill. 2008).
For the foregoing reasons, IPA’s motion as to Claimant No. 2 is denied. Claimant No. 7
The parties disagree about how long Claimant No. 7 worked at IPA, and whether she worked only as a business coordinator (as IPA states), or also in inside sales in the coaching department (as EEOC claims). The parties agree, however, that No. 7 worked for IPA for some period of time between August 2000 and January 2001, and the disputed details of her tenure are not material to IPA’s motion.
No. 7 claims that in the short time she was employed by IPA, she was grabbed, touched, and slapped on the buttocks several times by male co-workers when she stood up from her cubicle in the Business Coordination Department. She claims that she saw the same thing happen to at least one other female colleague, and she believes that at least that colleague saw it happen to her.
No. 7 also claims that during her training, IPA trainer Steven Rochenburg told her dirty jokes on a daily basis and ostentatiously scratched his genitals in front of her. Her supervisor, Phil Olsen, told No. 7 that he thought she would look good with her clothes
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off, thought she had nice breasts, and thought she would be good in bed. No. 7 claims that she reported Rochenburg’s and Olsen’s behavior to Shelle Bareck, Director of Human Resources, and that Bareck said she would look into it, but also told No. 7 that “men will be men”and that she should “just let it go and let bygones be bygones.”No. 7 is not aware of (nor does IPA assert) any action taken in response to her complaints.
No. 7 claims that at the office Christmas party, IPA’s Managing Director, John Burgess, told her that she could go far with the company if she was “very good to him,” which No. 7 understood to mean that she would advance professionally if she performed sexual favors for Burgess. At the same party, a male colleague told her she had a “great mouth that would be good for oral sex.” No. 7 reported the latter incident to her manager, John Greco, who said he would “look into it”and advised No. 7 to “just stay away”from the offending colleague. No. 7 is not aware of (nor does IPA assert) any action taken in response to her complaint to Greco.
IPA argues that No. 7’s claims are not severe or pervasive enough to be actionable, that her allegations are too vague and unspecific to support her claim, and that No. 7 was never bothered again after reporting the offending conduct to IPA management.
While it is true that No. 7’s claims relate to conduct that may be considered comparatively less severe than that described by certain other claimants, harassment need not be both severe and pervasive to be actionable. Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999). No. 7’s catalog of complaints is appreciable, given the short period of time she was employed by IPA. The court is convinced that in this light, a reasonable individual could find that the conduct No. 7 describes was pervasive. IPA seeks to defeat
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No. 7’s claims based on Koelsch v. Beltone Electronics Corp., 46 F.3d 705 (7th Cir. 1995), which upheld summary judgment in the defendant’s favor despite the claimant’s allegations that: the president of the company had grabbed her buttocks and rubbed his foot against her leg without her consent; the president had told the claimant that he found her attractive and could not control himself in her presence; a group of employees asked her to donate a pubic hair for a collection they were taking up as a gift for the company president; and she heard rumors about a sexually explicit photograph the company president purportedly carried in his wallet. Id. at 706-707. While some of this conduct is similar to that alleged by No. 7, the conduct in Koelsch occurred over a period five years, rather than (at most) five months, as alleged here. Moreover, the unwelcome touching No. 7 alleges was witnessed by at least one co-worker (the buttocks-grabbing in Koelsch occurred while the claimant and alleged harasser were alone). Although the physical contact No. 7 alleges is similar to that in Koelsch, the fact that it occurred in front of at least one coworker is a reasonable basis for considering it more serious, since conduct designed to degrade or sexually humiliate the victim in front of coworkers is particularly egregious. See E.E.O.C. v. Int’l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *7 (N.D. Ill. 2008).
Although none of the comments No. 7 claims were directed to her were explicit sexual invitations, they nevertheless amount to more than mere “occasional vulgar banter, tinged with sexual innuendo,”Baskerville, 50 F.3d at 421, and a reasonable woman could find that her coworkers’and superiors’repeated comments about her intimate body parts, and their suggestions about sexual acts she could perform, were deeply offensive.
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Indeed, No. 7’s complaints to human resources about this conduct demonstrate that she was, in fact, offended.
While certain of the conduct No. 7 alleges, such as the reference to “dirty jokes” may be too unspecific, standing alone, to persuade a jury that her work environment was intolerably hostile, the cumulative effect of crude jokes, unwelcome physical conduct by male coworkers (even if they cannot be identified by name), and overtly sexual comments directed at her by both colleagues and superiors is not so “tepid, intermittent or equivocal,”in the context of an environment pervaded with sexual harassment, that no jury could find in No. 7’s favor.
The court agrees that allegations based on rumor or hearsay are insufficient to support No. 7’s claim. But the conduct No. 7 directly experienced is sufficiently serious to survive summary judgment. That No. 7 was “never bothered again”by certain individuals whose behavior she reported appears from the record to have been more a fortuitous circumstance than a testament to the effectiveness of any remedial action taken by IPA (again, IPA has not identified any) and does not entitle IPA to judgment.
For these reasons, IPA’s motion as to No. 7 is denied. Claimant No. 15 Claimant No. 15 worked in administration and as a business coordinator at IPA for approximately six months in 1999 and 2000. During the first few months of that time, a zone manager, Blake Hamilton, called No. 15 “penis head”multiple times a week over the course of several months and also pointed and referred to her breasts as “M&M’s.” No. 15 also claims that an assistant zone manager, John Narcisse, looked at her as though he were “checking her out”and walked up behind her on at two occasions and massaged
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her back and shoulders. After the second time, No. 15 gave Narcisse a nasty look to let him know she didn’t appreciate the contact, and he never did it again. On another occasion, No. 15 heard a male employee say about a female employee, “I’d fuck her.”
No. 15 claims that while she was working as a receptionist, someone called her on at least two occasions with a sex line on the phone. No. 15 claims she heard women referred to as “bitches”on a daily basis, and she recalls several instances in which managers used the word in expressions like, “I’m getting tired of that bitch.” On one occasion, No. 15 heard one or more male colleagues whistle and say “look at the booty” as she was leaving the room. She also heard male employees say, on at least five occasions “Oh, look at that ass,”in reference to women wearing skirts. No. 15 saw Tyler Burgess, a male manager, slap Claimant No. 134, a female colleague, on the buttocks on two occasions. Williams screamed at Burgess and hit him after one of these incidents.
One day, No. 15 saw five photocopies, taped up in various publicly-viewed locations of the Business Coordination area, of a woman’s buttocks in stockings with the words “big booty [No. 134]”written on them. The photocopies were hanging up for a few minutes before someone took them down.
While No. 15 was working as the evening receptionist after hours one day, she saw a female business coordinator enter the office of senior executive Scott Kollins. Kollins himself arrived sometime thereafter, and the two closed the door and played loud music, remaining in the office until No. 15 left for the evening. The following day, upon hearing No. 15 and another claimant discussing the incident, Rich Lubicz, Director of Business Coordination Department, said, “maybe she was in there sucking his dick,” before laughing and walking away.
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After No. 15 was fired, she complained to Shelle Bareck, Director of Human Resources, asking “Do you have to be fucking or sucking someone around here to keep your job?”Bareck replied, “Well, what did you expect. This is a company run by men. I’m the only woman, and that’s just how things are.”2
IPA argues that these allegations do not rise to the level of seriousness necessary
to support an actionable claim. The court disagrees. While the impact on a reasonable woman of the “penis head”and “M&M’s”comments might be negligible if they were stray or isolated, No. 15 claims that these comments—which can reasonably be construed as based on sex, since the former sexualized No. 15’s hairstyle, while the latter likened her breasts to candy—were directed at her several times a week for several months.
Although these comments did not expressly reference or solicit sexual relations, it is
difficult to imagine a male worker being subjected to this type of offensive comments. The same can be said of the various “booty”comments. No. 15’s testimony supports a finding that she was “exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed,”Oncale, 523 U.S. at 80.
Likewise, a jury could find that the frequency and the manner in which No. 15 heard the word “bitch”used by male employees was sufficient to render her workplace
objectively hostile. In addition, No. 15 heard multiple comments sexualizing or
2 IPA objects that this testimony was elicited by a suggestive deposition question by the EEOC, and that the testimony is contradicted by No. 15’s prior testimony. The court disagrees that the questions were improperly leading, and IPA does not identify what prior testimony is supposedly in conflict with No. 15’s answer. Nevertheless, the relevance of the testimony must be understood in its proper scope. EEOC does not argue that No. 15 was fired because she declined to engage in sexual acts with IPA managers (i.e., that No. 15 was the victim of the quid pro quo type of harassment). Rather, EEOC argues that No. 15’s work environment was sexually hostile or abusive. The relevance, then, of Bareck’s alleged comment is limited to the issue of whether IPA was aware of the alleged harassment, and whether IPA responded (or failed to respond) appropriately. Because IPA is presumed, for present purposes, to have been aware of pervasive harassment and failed to respond appropriately, this portion of No. 15’s testimony adds little to the strength of her claim.
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attributing sex acts to female workers (“I’d fuck her,”and “maybe she was in there sucking his dick”are two choice examples), and she saw other women being treated in the workplace as available sex objects. A jury could reasonably find that the cumulative effect of these comments and conduct was sufficiently serious to alter the terms or conditions of No. 15’s employment.
Finally, No. 15’s allegations about Shelle Barack’s response to her complaint about being terminated emphasize what the court already presumes for the purpose of IPA’s summary judgment motions: that IPA was aware of severe and pervasive sexual harassment among its employees but failed to take reasonable corrective action.
For the foregoing reasons, IPA’s motion as to Claimant No. 15 is denied. Claimant No. 17
Claimant No. 17 responded to an advertisement for a management position at IPA. After her interview, she received a call offering her a job as a “telemarketer”(in fact she was hired as a business coordinator) and was told that she had to start there before moving to a job in management. After a week as a business coordinator, she asked her supervisor when she would be promoted. He put his arm around her, smirked, and said “well, there are certain things that you have to do in order to advance.”No. 17 interpreted her supervisor’s words and body language to mean that she had to have sexual relations with someone at IPA in order to be promoted. No. 17 claims that she had a nearly identical exchange with her supervisor on two other occasions. No. 17 also states that her supervisor made unwelcome physical contact with her (by putting his arm around her each time she approached him, and by leaning his chest into her shoulder on two or three occasions), and that she witnessed similar contact between other supervisors and
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female employees. No. 17 also claims she saw female employees give male supervisors their phone numbers, and she believed doing so was required to advance at IPA. As a result of these circumstances, No 17 felt stressed, cheap, inadequate, upset, angry, and humiliated. She began to miss days of work, and finally she quit her job. All of this occurred over the course of three weeks.
IPA argues that the conduct No. 17 describes is not severe or pervasive enough to support a claim for a hostile work environment and asserts that her “unreasonable and far-fetched conclusion”that her supervisor was asking for sexual favors does not support her claim of harassment. IPA also argues that No. 17’s allegations are generally too vague and conclusory to support her claim.
EEOC responds that No. 17’s three exchanges with her supervisor represent a “textbook case”of the quid pro quo theory of sexual harassment. EEOC also argues that No. 17 was the victim of a hostile work environment based on her encounters with her supervisor and the workplace scenes she witnessed.
Because most of the court’s and parties’attention in this case has been focused on the hostile work environment theory of sexual harassment, a brief discussion of the socalled quid pro quo theory is in order. Allegations that an employer demanded sexual favors from an employee in return for a job benefit is actionable under Title VII because such conduct explicitly (as opposed to constructively, as in hostile environment claims) alters the terms or conditions of the victim’s work. Burlington Indus. v. Ellerth, 524 U.S. 742, 751 (1998). Such allegations were formerly considered to state a quid pro quo claim of sexual harassment. More recently, however, “the concept of quid pro quo harassment has largely been abandoned; courts distinguish instead between cases in
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which the plaintiff suffered a tangible employment action and those in which no such action was taken.” Godin v. Whirlpool Corp., 132 Fed. Appx. 661, 664 (7th Cir. 2005) (citing cases).
It is clear from No. 17’s claim that she rebuffed, rather than submitted to, her supervisor’s advances. The question, then, is whether a reasonable jury could find that her refusal to indulge him resulted in a tangible employment action against her. If so, then her claim may proceed regardless of whether the alleged conduct was severe and pervasive. If she suffered no tangible employment action, however, then any alteration in the terms or conditions of her employment was constructive, i.e., due to a hostile environment, and she must prove that it was severe or pervasive. See Ellerth, 524 U.S. 751.
Despite its assertion that No. 17 experienced “a textbook case”of quid pro quo sexual harassment, EEOC does not assert that No. 17 was denied any tangible job benefit. Nevertheless, the court is mindful that it must draw all reasonable inferences in EEOC’s favor and thus construes No. 17’s claims as an assertion, however oblique, that she was refused a promotion based on her unwillingness to submit to her supervisor’s advances. Failure to promote may qualify as a tangible employment action. Ellerth, 524 U.S. 742, 761 (1998). To prevail on such a claim, however, No. 17 must prove that she was denied a promotion for which she was qualified. Godin, 132 Fed.Appx. 661, at 664. No reasonable jury could draw this conclusion based on the evidence EEOC presents. To begin with, No. 17’s entire tenure at IPA lasted only three weeks (which period encompassed the Christmas holiday), and by the time she quit her job, she had already missed several days of work. Moreover, No. 17 admits she was told she would have to
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gain experience in her position before being promoted, and her employment agreement with IPA explicitly stated that her first thirty days were considered a “probationary period.”These are not circumstances in which one can reasonably conclude that No. 17 was “denied”a promotion at all, much less that she was denied a promotion for failing to engage in sex with her supervisor. Notably, EEOC has not offered any evidence to suggest that IPA in fact promoted other workers under such circumstances. That No. 17 had experience as a sales manager at another company does not, by itself, demonstrate that she was qualified for the promotion she sought. For these reasons, No. 17’s “quid quo pro”claim fails.
No. 17 may, nevertheless, succeed in convincing a jury that she was subjected to a hostile environment based on the conduct she alleges. Although the physical contact she asserts (her supervisor’s putting his arm around her and his chest on her shoulder) does not appear to have been particularly threatening, a reasonable woman could interpret the combination of the gestures and his alleged comment that No. 17 would have to do “certain things”to advance at the company as unwanted pressure to engage in sex, or even as a threat that she would suffer negative professional consequences if she did not engage in sexual behavior with him. Though the fact that No. 17 saw female coworkers giving their phone numbers to male supervisors, and saw the supervisors put their arms around these women, may not, standing alone, support her hostile environment claim, but a jury could conclude that these workplace scenes reinforced the message No. 17 claims she received from her supervisor three times in as many weeks: women who engage in sexual activity with their supervisors are successful at the company, while those who do not are not.
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For the foregoing reasons, IPA’s motion as to Claimant No. 17 is denied. Claimant No. 21
Claimant No. 21 was employed by IPA as an administrative assistant and a business coordinator from April of 1998 to July of 1999. She claims that during that time, IPA’s managing director, John Burgess, regularly asked her when she was going to “take care of”a male coworker, Jason Zolnowski, who Burgess said was a virgin. No. 21 understood this question as a suggestion that No. 21 should have sex with Zolnowski. These comments, which were sometimes made in front of other IPA employees, made No. 21 extremely uncomfortable, and she asked Zolnowski and Tyler Burgess (John Burgess’s son and a manager at the company) to ask John Burgess to stop. The comments continued on a weekly basis throughout No. 21’s employment at IPA. John Burgess also told No. 21 that her blouse would be nicer if it were see-through, and suggested that she wear low-cut blouses and shorter skirts.
No. 21 also alleges that she heard male coworkers make comments about female coworkers’breasts; about their short skirts; and about how they “wouldn’t mind doing that one”(not, apparently, a reference to No. 21).
On one occasion, No. 21 heard that a male stripper was in the office of a female executive at the company, and she saw a crowd going in and out of the executive’s office. Curious, No. 21 went to have a look, and saw (from the back), a man dressed in only a gstring, with his bare buttocks exposed. No. 21 thought it was “repulsive and offensive” that a stripper had been hired to perform in the office during the workday.
No. 21 also heard a series of rumors about untoward office behavior: that a female coworker had exposed her bare breasts at the office; that John Burgess gave a female
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employee a Jeep Cherokee in exchange for oral sex; and that Burgess had hired a stripper whom he had met in Las Vegas to work in the Inside Sales department. No. 21 learned the final tidbit from Rich Lubicz, the Director of Business Coordination, who commented to No. 21 about the stripper’s appearance and on the “services”she could provide. No. 21 stated she was “uncomfortable”that Lubicz would make such comments.
IPA argues that No. 21’s claims should be dismissed because the conduct she describes is neither severe nor pervasive enough to support her claim. IPA further argues that her allegations are too vague and unspecific to be actionable.
The court agrees that No. 21’s allegations about rumors do little to advance her claims. Yuknis v. First Student, Inc., 481 F.3d 552, 556 (7th Cir. 2007) (“Offense based purely on hearsay or rumor”is “less wounding than offense based on hearing or seeing”). But No. 21’s claims are not based “purely”on rumor. She also alleges conduct that directly affected her, either because she was the individual target or because she saw and heard male employees talking about other women in the workplace in objectifying, sexualized terms. These allegations do support her claim.
First, No. 21 complains about John Burgess’s incessant suggestion that she “take care of”her coworker. These comments—which a jury could reasonably construe as sexual, based on No. 21’s description of them and the atmosphere at IPA as a whole— could conceivably be relegated to the category of non-actionable sexual “humor”if they were isolated remarks. But No. 21 alleges that she heard these comments week in and week out, and that she was “mortified”by the comments. In addition, Burgess allegedly told No. 21 that she should wear see-through blouses and shorter skirts. These comments—like those No. 21 alleges she often heard male colleagues make about female
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coworkers’body parts or their desirableness as sex partners—demean women workers by reducing them to sexual objects. See Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U.CHI.L.REV 1831, 1833 (2007). There is no evidence, and indeed it is somewhat difficult to imagine, that male employees were the objects of similar sexual attentions. Regardless of whether Burgess’s suggestion that No. 21 “take care of”her coworker was intended as humor, a reasonable woman could find that the repetition of that particular joke, coupled with the sexually demeaning or humiliating comments No. 21 alleges she heard, so pervaded No. 21’s workplace as to alter the terms or conditions of her employment.
As to the allegations regarding the male stripper, neither party has advanced any authority that speaks to whether an employer who condones (or, at least, does not forbid) sexually explicit entertainment at the workplace creates a hostile environment under Title VII. It seems to the court that while myriad considerations undoubtedly counsel against fostering a sexually charged atmosphere at the office, it is not clear that the scene No. 21 described—a male stripper in a g-string performing for a female colleague—would be any more offensive to female workers than it would be to male workers. Nevertheless, IPA does not argue that No. 21 fails to show that the harassment she alleges was based on sex. Mindful that it must draw all reasonable inferences in favor of the non-movant, the court assumes that No. 21’s allegations about the stripper support her claim of sex-based harassment.
For the above reasons, IPA’s motion as to Claimant No. 21 is denied.
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Claimant No. 37 Claimant No. 37 worked at IPA as an administrative assistant for approximately
ten months from July 1999 to May 2000. She claims that during that period, she regularly heard comments “of a sexual nature”directed to her and to other female employees by male coworkers and superiors. For the most part, No. 37 does not specify what these comments were. Here are a few exceptions: No. 37 heard John Burgess say to his secretary, “You’re looking mighty fine today”and “It’s a good thing you left your husband. Now you’re open for a real man.” IPA’s Chief Financial Officer, Gregg Steinberg, said to No. 37 on one occasion, “You know…if you dressed like that more often you’d get that raise and promotion you were looking for. Otherwise, you’re going to end up staying here forever.” Steinberg also told her, “You need to show what God gave you.”When No. 37 complained about the latter comment to a female supervisor, the supervisor said, “Get over it. You have a chest. Show it.”No. 37 also claims that she heard Steinberg say to other women, “Nice ass. Nice skirt. Glad you’re showing a little more today.”3 No. 37 also claims she heard Rich Lubicz say to other female employees, “nice ass,”and “you’ve got a nice rack,”and that Lubicz asked other female employees out on dates. No. 37 claims that she heard Lubicz make comments of this nature about ten times a day, three days a week, for about three or four months.
No. 37 also claims that she heard, from various sources, about additional untoward office behavior: that a female stripper had been hired by John Burgess for Rich Lubicz’s birthday and was performing in the lunchroom; that Lubicz and other male managers made sexually inappropriate remarks.
3 IPA contests these allegations with an affidavit from one of the women No. 37 claims was the object of such comments. At summary judgment, of course, the court resolves this factual dispute in No. 37’s favor.
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No. 37 repeatedly voiced her objection to the conduct she described. She complained to her (female) supervisors in the accounting department about Steinberg’s comments and about the stripper, and also complained (though about what is not clear) to another manager, Doug McClain. On the day of the stripper incident, Shelle Bareck, Director of Human Resources, called No. 37 into her office and told No. 37 that she (Shelle) had heard No. 37 had been “whining about what happened in the lunchroom” and needed to “get over [her]self.”
A few weeks later, No. 37 arrived at work one morning to discover she had been “demoted”to the position of business coordinator from her position in accounting. Gregg Steinberg told her that her “comments were becoming ludicrous”and that nobody wanted her in their department. At her deposition, No. 37 testified that the “comments”to which Steinberg referred had to do with her complaints about the treatment of employees at IPA, and specifically about the working hours and lunch breaks. No. 37 testified that Steinberg was not referring to her comments about the “Rich Lubicz incident.”
IPA argues that No. 37’s claims do not describe conduct that is severe or pervasive enough to be actionable, and that her allegations are too vague and conclusory to withstand summary judgment.
Although EEOC seems to suggest that No. 37’s “demotion”was the result of her complaints, it does not clearly assert that she suffered a tangible employment action as a result of sex discrimination (i.e., a “quid pro quo”claim). Indeed, it appears from the record that to the extent No. 37 was “demoted”at all (IPA contests this), her change in status was related to complaints she made that had nothing to do with the harassment she
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alleges. Accordingly, the court examines whether No. 37’s claim can withstand summary judgment based on her allegations of hostile environment.
First, as discussed with respect to other claimants, claims based on rumors— including No. 37’s allegations involving third-party reports of unsavory goings-on in the corporate lunchroom—are too remote, as far as No. 37 is concerned, to support her claim. See Yuknis, 481 F.3d at 555-56. And while the comments No. 37 attributes to Shelle Bareck may well support employer liability, they do not substitute for specific evidence of sex-based harassment. These allegations thus do not support No. 37’s claim.
As the case law in this area (including in this particular case) makes clear, whether or not a hostile environment claim is actionable depends on a highly nuanced assessment of the likely impact of the challenged words or conduct on a reasonable individual. Claims generically alleging comments “of a sexual nature”are insufficiently precise to allow the court—or the fact finder—to “provide a basis to determine whether that conduct was severe, pervasive, and objectively offensive harassment.”Gabrielle M. v. Park Forest-Chicago Heights, Ill. School Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) (five year old plaintiff’s allegations that classmate did “nasty stuff,”and father’s testimony that classmate touched plaintiff’s “[p]rivate parts, chest”insufficiently precise to withstand summary judgment).4 While it is true that a plaintiff need not remember every detail of every offensive comment, see Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1457 (7th Cir. 1994), she must nevertheless present sufficient evidence to
4 The court is mindful that Gabrielle M was brought under Title IX of the Education Amendments of 1972, not under Title VII of the Civil Rights Act. A claim under Title IX requires a showing of conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim's access to educational opportunity or benefit.”Davis v. Monroe County Bd. Of Educ., 526 U.S. 629, 633 (1999). Although the applicable standards are not entirely coextensive, each requires the finder of fact to judge the severity and/or pervasiveness of the challenged conduct, underscoring the need for a reasonable degree of specificity in the evidence.
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enable a fact finder to determine whether the conduct alleged falls on one side or the other of the Baskerville line.
It is true that No. 37 alleges comments “of a sexual nature,”which, standing alone, are too vague to support her claim, since this description encompasses both activity that is generally actionable (solicitations for sex, for example), and activity that is not (telling vulgar jokes). It is also true that some of the comments that No. 37 does recall with specificity are the kind of “tepid”remarks that fall on the non-actionable side of the Baskerville line (e.g., “you’re looking mighty fine today.”) On the other hand, however, certain of the comments No. 37 heard referred to female employees’body parts in a manner that can certainly be construed as demeaning to women in a professional environment (“nice ass,”and “you’ve got a nice rack”are two choice examples). Although No. 37 does not allege that these comments were directed at her, she does assert that the IPA’s CFO urged her to dress in a fashion that would “show what God gave”her, and that he even went so far as to suggest that her professional success was contingent on whether she did so (“You know…if you dressed like that more often you’d get that raise and promotion you were looking for. Otherwise, you’re going to end up staying here forever.”) As the court noted with reference to the claim of No. 17 (who alleges that her supervisor told her, in a sexually suggestive manner, that she would have to do “certain things”in order to advance at IPA), pressure by an employee’s supervisor to engage in sex, or comments that can be construed as a threat of negative professional consequences unless the employee agrees to sex, can support a hostile environment claim where the employee also witnesses workplace scenes that reinforce the message that women who engage in sexual activity with their supervisors are successful at the
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company, while those who do not are not. No. 37 does not claim to have been pressured for sex, but she does allege that she was pressured to dress more provocatively. Meanwhile, No. 37 heard Steinberg comment to a female coworker, “glad you’re showing a little more today,”and she heard Rich Lubicz make comments about her coworkers’bodies up to ten times a day over the course of months. In this context, a jury could find that No. 37 reasonably believed that her professional success was indeed dependent upon how much of her own body she exposed to her male colleagues, and that the resulting pressure on her constructively changed the terms and conditions of her employment.
For the foregoing reasons, IPA’s motion as to Claimant No. 37 is denied. Claimant No. 39
Claimant No. 39 worked as an outside sales consultant for IPA from January 2001 to February 2001. No. 39 spent the first three-and-a-half days of her employment at an off-site training class, which was held at a hotel where trainees apparently spent the night in between the daytime training sessions. No. 39 bases her hostile environment claim on the conduct of IPA employees during the training. Specifically, No. 39 alleges that: Richard Gottlieb, the IPA training instructor, routinely called her “princess”and asked her to make and hand out photocopies. Gottlieb did not ask any of the other trainees (which group included five women and thirty men), to make photocopies. Gottlieb told No. 39 that she had made the copies well, to which No. 39 responded, “[y]ou’d be surprised what I can do well.”At this, Gottlieb allegedly looked No. 39 up and down and said, “I bet you can.” No. 39 also alleges that Gottlieb made sexual jokes and lewd comments, that he referred to another female trainee as “Boom boom,”and that he
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“talked down”to the women in the training, rather than treat them in a businesslike fashion. Gottlieb also eyed the women in the training up and down, touched their arms, and rubbed their backs as they left the room. No. 39 does not allege, however, that she herself was subjected to any unwelcome physical contact by Gottlieb. At the end of the training class, Gottlieb announced that there would be a graduation party, and that the women in the class would “get some”because there would be more men that women.
One night during the training session, a male trainee called No. 39 on her hotel phone, asked her for a drink, and told her he was going to leave his wife for her. No. 39 declined the invitation, but at the graduation party, the same trainee rubbed No. 39’s back and shoulders and told her he was a good kisser. Also at the graduation party, another male trainee offered No. 39 a drink. No. 39 turned down the offer, but he ordered the drink anyway and appeared angry when she declined to drink it. No. 39 claims she was “very scared”that the trainee who had bought the drink would accost her or “do something”when she left the bar, so No. 39 did not want to leave alone. Finally, a third male trainee tried to give No. 39 his room key at the graduation party and told her his room number in case she got “lonely.”
Taken together, and in the most favorable light to EEOC, these allegations are insufficient to allow a reasonable jury to conclude that No. 39 was subjected to conduct so severe or pervasive during her tenure at IPA that her environment could be considered objectively hostile. Cognizant that No. 39 alleges no offensive conduct in any but the first three-and-a-half days of her month-long employment, EEOC argues that the objectionable conduct was pervasive during that initial period. Of course, even one instance of misconduct can be considered “pervasive”if the control period is short
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enough. As noted above, the reason sex-based harassment must be “severe or pervasive” to sustain a hostile environment claim under Title VII is that a violation of the statute occurs only when the challenged conduct constructively alters the terms or conditions of the victim’s employment. See Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 752 (1998). In this light, it is clear that an aggrieved worker cannot manufacture pervasiveness simply by parsing her employment into byte sized periods and alleging that one of those periods was “pervaded”with misconduct. Even assuming such allegations were true, the aggrieved worker in most cases simply would not have demonstrated that the terms or conditions of her employment were effectively altered as a consequence.
This is not to say, of course, that any claim must fail unless it alleges a constant barrage of misconduct throughout a worker’s employment. As the court noted above, even a single instance of sex-based harassment can be actionable, provided it is sufficiently severe. The trouble with No. 39’s claim is that it alleges conduct that is neither severe nor pervasive enough (when considered against the full term of her employment) to have constructively altered the terms or conditions of her employment. Gottlieb’s calling her “princess”did not have that effect, see Woodford v. Federal Express Corp., No. Civ. 02-1116, 2004 WL 234396 at *7 (D. Minn., Jan. 21, 2004) (Tunheim, J.) (coworker’s use of nickname “princess”was “annoying and inappropriate” but not sexual, and amounted to “simple teasing”); see also Figueroa v. New York City Health and Hospitals Corp., No. 03 Civ. 9589, 2007 WL 2274253 at *10 (S.D.N.Y., Aug. 7, 2007) (Buchwald, MJ.) (calling plaintiff “Miss Princess” not actionable harassment), nor did his ambiguous reply to her equally ambiguous remark, “[y]ou’d be surprised what else I’m good at.”Even assuming that the nickname “Boom boom”was
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tinged with sexual innuendo, No. 39 was neither the direct nor the indirect target of this name, and any effect it may have had on her is remote. See Yuknis v. First Student, 481 F.3d 552, 555 (7th Cir. 2007). And to the extent No. 39 was singled out during the training to perform the administrative task of photocopying on the basis of her gender, and that Gottlieb “talked down”to the women in the class (whatever that may mean), there is simply no indication that this conduct materially affected No. 39’s work conditions or environment as a whole.
No. 39’s remaining allegations are equally insufficient. As discussed elsewhere, unwelcome physical contact that is neither threatening, nor ongoing, nor sexually humiliating is generally too mild to support a claim. See Adusumilli v. City of Chicago, 164 F.3d, 353, 362 (7th Cir. 1998). No. 39’s various invitations for drinks and late-night visits, while perhaps unwelcome, were only marginally related to her working environment, having occurred after hours during the training period, and do not appear to have had any ongoing effect on her working conditions.
For these reasons, IPA’s motion as to Claimant No. 39 is granted. Claimant No. 43
Claimant No. 43 worked as a business coordinator at IPA for approximately three weeks from May to June 1998. It is unnecessary to recite her appreciable list of grievances in full, since it is evident from just a few examples that her claim survives summary judgment. To wit:
During the training period, No. 43 walked by several male employees who were standing together outside the bathroom. One of the men touched No. 43 on the buttocks and said to another male employee, “that’s going to be mine.” No. 43 alleges that she
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was touched every day, and that the unwelcome physical contact to which she was subject included repeated incidents in which a colleague brushed her breast and put his penis on her shoulder. The parties dispute whether No. 43 reported these and other incidents of unwelcome physical contact.
No. 43 also claims that she did not receive commissions to which she was entitled. When No. 43 complained to a male employee, Victor Baltimore, who No. 43 believed was a supervisor (though IPA disputes this), Baltimore told No. 43 that if she had a “threesome”with him and his wife, he would ensure that her commissions were paid.
The court finds that based on these incidents alone, all of which occurred in the space of less than a month, a jury could find the workplace conduct described by No. 43 to be objectively hostile. The incidents of unwelcome physical contact appear, based on No. 43’s testimony, either to have been designed to sexually humiliate No. 43 (as in the first instance), or to have been persistent and involving intimate body parts (as in the remaining instances). Furthermore, a fact finder could construe Baltimore’s “threesome” comment as an overt solicitation for sex. Because this conduct falls within the categories of actionable harassment under Baskerville, the court will not enumerate or discuss No. 43’s myriad additional allegations at any length. The court does note in passing, however, that the remaining allegations include a host of sexually explicit and degrading remarks, all of which could be found by a trier of fact to contribute to an environment that was hostile to No. 43 based on her sex.
For these reasons, IPA’s motion as to Claimant No. 43 is denied.
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Claimant No. 46 Claimant No. 46 worked as a business coordinator for approximately nine or
eleven months (the parties disagree) beginning in August 2000. She alleges that Nick Jones, who was the assistant zone manager, and later the zone manager for her zone, told her on multiple occasions (five to ten times) that if she wanted better sales leads, she would have to wear a tighter sweater and/or a shorter skirt. Although she cannot remember additional details, No. 46 states that Jones also made sexual “digs”and innuendos throughout the day. On one occasion, when No. 46 went to ask Jones a question, she found him surrounded by female assistants who were massaging various parts of his body. On that occasion as well, Jones told No. 46 that she would not have problems with sales if she wore a shorter skirt and a tighter sweater. No. 46 complained about these incidents to Shelle Bareck, who said she would look into them. No. 46 is not aware of (nor does IPA assert) any action taken in response to her complaints.
No. 46 also claims that on two occasions, she witnessed a verbal and physical altercation between a male and a female coworker. On the first occasion, a coworker named Blake (who may or may not have been acting as an assistant zone manager) called a female colleague a slut. The woman retorted, calling Blake a skinhead. At this, Blake picked up a heavy book and struck the woman in the face. The woman then fell to the floor bleeding. No. 46 asserts that she learned at a meeting held for the Business Consultants on the floor that as a result of the altercation, the woman had been fired, and the man had been suspended.
IPA disputes various elements of No. 46’s account of the incident. Based on the affidavit of Tyler Burgess, who states he was then IPA’s Director of Business
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Coordination, IPA admits that Blake Hamilton (who it appears from the statement was indeed an assistant zone manager at the time) struck a female colleague in the face. IPA asserts that no disciplinary action was taken against the woman, and confirms that Hamilton was suspended. IPA also asserts that the woman did not report the episode as sexual harassment or discrimination.
On the second occasion, No. 46 saw and heard Nick Jones tell a “very pregnant” employee, “you’re too fat and you’re too pregnant. You need to get out of here”and “you slut, get out of my fucking zone.”The pregnant employee then sat or was pushed on a desk (No. 46 did not see which), and the desk broke in half, causing the pregnant woman to fall to the floor. No. 46 testified that she interpreted Jones’s comments to mean that the pregnant employee was fired, but she does not know (nor does IPA clarify) if the woman was actually fired.
It is obvious from the above that the parties disagree about significant factual issues relating to several critical episodes underlying No. 46’s claim. Summary judgment is therefore inappropriate. Assuming that the events occurred exactly as No. 46 claims, see Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976, 977 (7th Cir. 2000), a jury could conclude that the altercations No. 46 witnessed (and which thus had a direct impact on her, see Yuknis, 481 F.3d at 556), which, in addition to causing physical harm to the women involved, included use of the sexually pejorative insult “slut,”were severe enough to render No. 46’s working environment objectively hostile to No. 46 based on her sex. Moreover, a jury could find that the effect of these incidents on No. 46 was compounded by Jones’s repeated “suggestions”to No. 46 about her wardrobe, as well as by the Phase I finding of a pattern of sexual harassment at IPA.
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For the foregoing reasons, IPA’s motion as to No. 46 is denied. Claimant No. 55
Claimant No. 55 worked as a business coordinator at IPA for approximately two and a half months from May to July of 2001. She claims that male employees made “inappropriate comments”about her breasts and buttocks, about the way she walked, and about “their interest in sexual relations”with her. She further claims that Shawn Fishman, her assistant zone manager, made “sexual comments” multiple times throughout the period of employment, and that Fishman made comments about her body and “insinuated that he wanted to have sexual relations”with her.
No. 55 also claims that on one occasion, Rich Lubicz, Director of Inside Sales,5 told her, in response to No. 55’s complaint about her income from IPA, “you’re better off being a stripper.” She claims that she was once paid a commission she had not earned simply by smiling and waving at a senior manager who, she had heard, had a sexual interest in her.
Finally, No. 55 claims that she witnessed “certain acts of inappropriate touching” at the workplace, and in particular that she “witnessed women being touched (for example on their buttocks)”once or twice a week. No. 55 also “overheard some inappropriate comments being made to female employees”and “was told about other inappropriate comments.” The remainder of No. 55’s allegations assert conduct No. 55 had “heard about”or “was told”by others.
5 In its response to IPA’s motion as to No. 55, EEOC refers to Lubicz as “Director of Inside Sales.”In its L.R. 56.1 Statement of Material Facts, IPA does not dispute the title EEOC imputes to Lubicz, although IPA states that No. 55 was a business coordinator and refers to Lubicz as No. 55’s “manager.”In addition, Lubicz is elsewhere referred to as the Director of Business Coordination. The court need not concern itself with these inconsistencies, however. as they are immaterial to the resolution of IPA’s motion.
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No. 55’s claims cannot survive summary judgment. Her allegations, like many of No. 37’s, discussed above, are simply too vague to enable a fact finder to conclude that the conduct she asserts was actionable. Her conclusory allegations of “inappropriate” comments and physical conduct do not suffice. No. 55’s subjective view of what is “appropriate”may or may not correspond to the criteria used by the courts to distinguish actionable from non-actionable conduct under the statute, and her allegations are insufficiently specific to enable a fact finder to evaluate her claims under the applicable standard. For example, a rational jury could not determine, based on No. 55’s allegations about “comments of a sexual nature,”whether she heard sexually explicit jokes (generally not actionable), or solicitations for sex (potentially actionable). Although repeated comments about a female employee’s “tits”and “ass”may contribute to a hostile environment, see Valentine v. City of Chicago, 452 F.3d 670, 681-82 (7th Cir. 2006), the context and frequency of such comments are critical to an evaluation of their impact. Compare Valentine with Moser v. Indiana Dept. of Corrections, 406 F.3d 895, 902-03 (7th Cir. 2005) (comments by male employee about female employee’s “tits”and about female job applicants’physical appearance, and innuendos about his own penis size, among other comments, insufficiently serious to support hostile environment claim). No. 55’s general assertion that such comments were directed to her is therefore insufficient.
Perhaps the closest No. 55 comes to asserting actionable conduct in these allegations is with her assertion that Fishman “insinuated”that he wanted to have sex with her. But No. 55 testified that Fishman never asked her on a date and never asked her to go to bed with him. (She also testified that he never touched her). In light of No.
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55’s affirmative denial that Fishman explicitly solicited her for sex, no rational fact finder could conclude, based on No. 55’s vague allegations, that he implicitly did so. To be sure, solicitations for sex are not the only category of actionable comments. Threatening, abusive, or humiliating comments of an explicitly sexual nature may also support a claim (provided, of course, that they are sufficiently severe or pervasive). But No. 55 provides no evidence that Fishman’s comments fell into any of these categories. Moreover, “[a]mbiguous comments that could possibly carry a sexual connotation are not sufficient to create an objectively hostile work environment.”Enriquez v. U.S. Cellular Corp., No 06 C 3135, 2008 WL 4925012 (N.D. Ill., Nov. 14, 2008) (Kendall, J.) (citing Adusumilli, 164 F.3d at 361-62).
Although by contrast, No. 55 recalls Lubicz’s stripper comment in reasonable detail, that comment, standing alone, does not save No. 55’s claim from summary judgment. It is true that the comment appears to have been made in front of other IPA employees, and was surely humiliating to No. 55 for that reason. Nevertheless, the insufficiency of No. 55’s remaining allegations requires that the court view Lubicz’s comment in isolation (or, more accurately, as an isolated instance of conduct directly affecting No. 55. The court remains mindful of the presumption that sexual harassment was pervasive and unchecked at IPA generally). Even offensive conduct that causes an employee “significant discomfort and distress”is not generally sufficient to demonstrate a hostile environment if the conduct is infrequent or of limited duration. Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993). That is the case with Lubicz’s remark. While insulting and understandably upsetting to No. 55, the comment was not so extreme as to alter the terms and conditions of her employment.
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Finally, while No. 55’s claim that she received a commission to which she was not entitled, simply by smiling and waving at a senior manager, is perhaps consistent with allegations by this claimant and others that IPA had a practice of paying commissions to female employees on a discretionary basis, based on whether the employee engaged in sexual acts with managers, her allegations do not support a finding that No. 55 was affected by this practice. Smiling and waving are simply too far removed from any kind of sexual activity to conclude from No. 55’s allegations that was affected by the discriminatory policy alleged.
For the foregoing reasons, IPA’s motion as to No. 55 is granted. Claimant No. 56
Claimant No. 56 worked for IPA for approximately two and a half months from September to December of 2001, first in Inside Sales and later as a business coordinator. During her time as a business coordinator (which appears to have spanned roughly the last three weeks of her employment), two of her colleagues repeatedly asked her out on dates. She consistently declined their requests. One of the unwelcome suitors, Terrence Burke, asked her out approximately six to ten times after she refused him. Burke repeatedly made comments to No. 56 about her breasts, the shape of her buttocks, and her “abilities to perform in bed,”and he asked No. 56 to sit in his lap. No. 56 also overheard Burke loudly discussing female employees at IPA and whether they had sexually transmitted diseases. At some point, No. 56 discussed with an assistant zone manager
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and/or Nick Jones the possibility of moving No. 56 to a different zone to get away from Burke, but no such move materialized.6
Another male business coordinator, whose name No. 56 does not recall, also made repeated unwelcome advances, which included telephone calls to her house. This individual asked No. 56 out ten to fifteen times, and despite her refusals, told No. 56 that he wanted to touch and caress her breasts and buttocks and that he wanted to “experience”her sexually. No. 56 believes that it was this individual who called her at home over the weekend, identifying himself as an IPA business coordinator, and said that he had heard she had gotten into an argument with another IPA employee, but that she should not leave IPA. After No. 56 told the caller not to call her again, her “caller ID” showed that he called another three or four times.
Frank Atkinson, a manager who led a training session in which No. 56 had participated, approached No. 56 at her cubicle after the training and said she was “not like all the other hoochie mamas at IPA. Once you do the nasty with them, you have … nothing to talk about.”
No. 56 also claims that a female employee named Jenny (whose last name began with D, and who No. 56 states in passing was under 18 and still in high school at the time) was referred to by male employees as “Jenny Double D”in reference to her bra size. No. 56 claims that she saw male employees brush up against Jenny and touch her breast. No. 56 herself was subjected to unwelcome physical contact on one occasion, when Jason Zolnowski, her assistant zone manager, massaged her shoulders.
6 It appears that No. 56 discussed moving zones on two separate occasions, once with an assistant zone manager whose name No. 56 does not recall, and once to Nick Jones. No. 56’s testimony on this point is not entirely clear, however.
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No. 56 reported some of these incidents to Nick Jones shortly before she left IPA. In particular, she told Jones that she was not comfortable in her zone because of her proximity to Burke, and that she was also uncomfortable about the phone call she had received at home.
IPA argues that these allegations fail because they are insufficiently severe or pervasive. It is true that No. 56 does not allege repeated or aggressive physical contact or explicit sexual solicitations, nor does she describe being subjected to obscene language or gestures. Nevertheless, a jury could find that the sheer number of advances several male coworkers made (sixteen to twenty-five over the three week period she was employed as a business coordinator), as well as their sexually suggestive content and the fact that one of her would-be suitors may have called her at home, amounts to conduct that is severe or pervasive enough to create a hostile environment. Obviously, No. 56’s claims would be stronger if she could remember more details about the events she describes. Her chances of convincing a jury to find in her favor may be slim, but they are not zero, and she is entitled to the benefit of the doubt on summary judgment.
For the foregoing reasons, IPA’s motion as to Claimant No. 56 is denied. Claimant No. 57
The parties dispute when and for how long Claimant No. 57 worked at IPA. EEOC claims she worked there for a little over a month in 1997. No. 57 stated in her deposition that although, she cannot recall the exact dates of her employment, she worked there for a month or a little more, sometime in 1996, 1997 or 1998. IPA asserts that No. 57 worked as a business coordinator for one week in November and December of 1997.
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No. 57 alleges that three times a week during her employment, her zone manager asked her out for a drink. She consistently declined his requests, saying that she was married. She also alleges that two or three times per shift, male coworkers and supervisors leaned over her shoulder and rubbed against her back in a manner she says she cannot explain, but which she found to be sexual and inappropriate. She states that when she told the men to back off, they did, although some of them came back and leaned against her again. No. 57 also claims she saw male employees hug and kiss female employees, and that in some instances the female employees would push the men away. She also saw and heard male employees asking female employees out on dates. No. 57 generally cannot remember any details of conversations she overheard. She explains of her experience working at IPA, “I more or less put the things that I don’t want to remember out of my mind, and so therefore I don’t remember.”
IPA argues that No. 57’s claims are insufficiently severe or pervasive to give rise to a hostile environment. In particular, IPA emphasizes that No. 57 stated in her deposition that she did not find the environment hostile. IPA also argues that No. 57 provided insufficient detail to prove her claims, and that the details she did provide demonstrate that the conduct she alleges is not actionable.
At the outset, the court is not at all persuaded by IPA’s argument that No. 57’s claim must fail based on her purported testimony that her work environment was not “hostile.” To begin with, this testimony was elicited by IPA’s leading question: “It wasn’t hostile?” after No. 57 stated that she found her work environment “unprofessional.”7 More importantly, however, there is no magic to a claimant’s use of
7 IPA is of course entitled to use leading questions to examine EEOC’s witnesses, but the exchange on which it bases its argument that No. 57 did not subjectively find her environment hostile does not
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the word “hostile”in pursuing a claim based on the “hostile environment”theory of liability. A claimant who describes sexual harassment that is so severe or pervasive as to alter the terms or conditions of her employment may prevail on a hostile environment claim, regardless of whether she uses the word “hostile”to describe her workplace.
No. 57’s claim has other problems, however. Most fundamental is her general inability to recall the details necessary for a jury to determine that the conduct she alleges is actionable. While it is certainly possible to imagine that No. 57’s supervisor asked her out in a way that was sexually explicit or offensive (indeed, other claimants describe such invitations: No. 43, for example, alleges her supervisor invited her for a threesome with his wife), No. 57’s allegations provide so little detail that it is impossible to conclude that the impact of the invitations on a reasonable woman would have been so serious that it altered the terms or conditions of her employment. Like No. 55 (who claims her assistant zone manager “insinuated that he wanted to have sexual relations”with her but could not remember any particular invitation), No. 57 simply does not provide enough factual detail to enable a reasonable jury to conclude that her supervisor’s invitations for “drinks”were such as would render No. 57’s working environment objectively hostile. This is also true of the conduct she alleges she saw and heard, but that was not directed towards her specifically.
Similarly, the unwelcome physical contact No. 57 describes is too mild, and the description itself too vague, to support her claim. First, No. 57 does not claim that the
necessarily support the conclusion it seeks to draw. It is not at all clear from No. 57’s testimony that she appreciated the legal significance of IPA’s counsel’s use of the word “hostile.”The relevant exchange reads: “Q: …Was [your work environment] anything besides unprofessional? A: Well, it was kind of –I felt kind of that shouldn’t have –shouldn’t be in the workplace.”Q: Because it was unprofessional? A: Right. Q: Okay. It wasn’t hostile? A. It wasn’t hostile but it was conduct that didn’t belong in the workplace.”
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contact involved any particularly sensitive or sexual body parts, and she states that she “can’t explain”what made the gesture sexual, other than that “what they were doing did not require them leaning over me in that –in that type of way.” Second, No. 57 states that in each instance, the contact lasted only a “few seconds,”and that when she asked the men to stop, they generally did (although some of them returned later). These allegations do not depict conduct that a reasonable jury could find so severe or pervasive as to alter the terms or conditions of No. 57’s employment.
For these reasons, IPA’s motion for summary judgment as to No. 57 is granted. Claimant No. 58
Claimant No. 58 worked as a Business Consultant for IPA for two weeks in 2000. It appears from her allegations that No. 58’s backside caused quite a stir at IPA. Beginning with her first day at work, when she had gotten no further than the parking lot before ten to fifteen men commented on her buttocks (in such terms as “Damn, you’ve got a big ass, baby”), No. 58 endured daily comments about—and on two occasions, unwanted contact with—her buttocks. These included such graphic appeals as “You can come to my house and I’ll, you know, wack (sic) that ass for you”and “nail you to the nearest wall.” The employee who uttered these last comments explained his meaning: “I’ll fuck the shit out of you.” No. 58 claims that these are the kinds of comments she heard day in and day out, even though she “cussed out”the men who made them. Finally, No. 58 quit her job because she was “tired of hearing it.”
The court’s disposition of IPA’s motion as to Claimant No. 58 requires little explanation. An employee claiming she was subjected to daily comments about her buttocks, including graphic, arguably violent solicitations for sex, easily survives
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summary judgment. IPA’s motion for summary judgment as to Claimant No. 58 is denied. Claimant No. 61
Claimant No. 61 worked at IPA from May to December of 1997, when she was twenty-two years old. For the first three weeks, she trained and then worked in the Business Coordination Department. No. 61 states that she was a mediocre performer as a telemarketer, and after two weeks on the job, John Burgess, the CEO of IPA, personally offered her a position as an assistant in the quality assurance department. Shortly thereafter, Burgess offered No. 61 a salaried position as quality assurance manager, which she felt was a promotion. Initially, No. 61 believed that Burgess offered her the position because he thought she showed potential as a professional. Soon after she became quality assurance manager, however, Burgess placed his hand on No. 61’s shoulder, and, while standing close enough her to make her uncomfortable, asked her out for dinner and drinks. No. 61 declined the invitation, telling Burgess, “you’re married,” to which Burgess allegedly replied, “we won’t invite her.” Although she consistently declined his invitations, Burgess consistently asked No. 61, approximately once every two weeks, whether she had changed her mind about going out with him.
Approximately three weeks after No. 61 declined Burgess’s his last request, Shelle Bareck, IPA’s Human Resources Manager, called No. 61 to her office and told her that because of No. 61’s complaints about people smoking and using foul language in her office, the quality assurance manager position was “not the best match”for No. 61, and that “the environment was probably a little too hostile”for her. Bareck offered No. 61 a position as a business coordinator, but by that point, No. 61 was not interested in any
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position at IPA. She quit the same day she was removed from the quality assurance manager position.
In addition the above, No. 61 alleges a variety of harassing conduct by numerous male employees at IPA. For example, she alleges that a male employee twice pressed his erect penis against her from behind. The second time was after No. 61 had complained about the first incident to her supervisor (and CEO of the company), John Burgess. No. 61 also alleges that on one occasion, a male coworker insulted her using the epithets “fucking whore,”“fucking slut,”and “fucking bitch.” Another coworker called her a “fucking bitch”and responded to her work related requests with “fuck you” after she refused to go out with him.
IPA argues, unconvincingly, that these and other incidents not cataloged here are insufficient to demonstrate a hostile environment as a matter of law. The court disagrees. IPA also argues that No. 61’s claim is time barred because only the last week of her employment falls within the limitations period, and, according to IPA, No. 61 does not allege any harassment during that period. But No. 61 claims that she was demoted from her position as quality assurance manager and asked to return to her position as a business coordinator because she refused to accede to John Burgess’s advances. EEOC argues that No. 61’s experience provides “a perfect example of how women’s careers can rise and fall at IPA based on their receptiveness to managers’sexual advances,”and that her demotion was part of the sexually hostile environment at IPA.
“A hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’”Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). As the Court has explained, “[Title VII] does not
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separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability.” Id. at 118. Of course, the parties factually dispute whether No. 61 was, in fact, “demoted.”But summary judgment is not the place to resolve this dispute. EEOC has provided sufficient evidence from which a jury could conclude that No. 61 was removed from her position as quality manager as part of a sexually hostile environment at IPA, and that environment persisted throughout the time of No. 61’s employment, including the period that falls within the limitations period.
For the foregoing reasons, IPA’s motion for summary judgment as to Claimant No. 61 is denied. Claimant No. 69
Claimant No. 69 was a business coordinator at IPA for about a month and a half in November and December of 1997. On at least four occasions, she saw men huddle together and whisper after women walked down the hall, and although she couldn’t hear exactly what was said, she heard comments of a “sexual nature,”such as the words “ass” and “boobs.” No. 69 did not hear any comments about her personally. On about four occasions, she also heard male coworkers refer to female employees as “bitch”or “dyke,” and she heard the word “lesbian”used once or twice. No. 69 also alleges that she heard her supervisor, Jim, complain about an employee on two different occasions, using language such as, “the bitch is trying to get me fired,”and referring to her as a “cunt.” She also alleges that two coworkers—a husband and wife team—frequently complained about the husband’s ex-wife and her requests for child support. The husband and wife referred to the ex-wife as a “fucking bitch”and a “whore.”
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No. 69 states that a male colleague with whom she had a good rapport, and who she believed had an understanding of how things worked at the company because he worked with managers, told her on one occasion that if she wanted to get anywhere in the company, she would have to sleep with somebody. She also states that her supervisor, Jim, kept a calendar of semi-naked women (whose bare nipples were exposed) in an area of his workspace that was generally visible to other employees.
IPA argues that summary is appropriate because the harassment No. 69 alleges is not severe or pervasive and is not based on sex. The court agrees that No. 69’s claim cannot withstand summary judgment. She does not claim to have been the individual target of any harassing language or behavior. In fact, she does not claim that the offensive language was directed to the women apparently being talked about, but rather that it was used during semi-secretive conversations among men. Although No. 69 claims to have overheard snippets of these conversations, this type of exposure to sexually inappropriate or offensive language in the workplace is not generally sufficient to create a hostile environment. Yuknis, 481 F.3d at 556 (remarks and behaviors unrelated to complainant except for her having overheard them not generally actionable). Moreover, although No. 69 claims that she heard comments about coworkers “frequently,”she also quantifies the total number of comments as fewer than ten. The objectionable comments by No. 69’s colleague about his ex-wife indeed included genderbased epithets; but the alleged comments were clearly a reflection of personal hostilities, not of sex discrimination at IPA.
Even taking into consideration the bare-nipples calendar and her colleague’s suggestion that No. 69 would have to sleep with someone to get ahead at the company,
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the potential impact on No. 69 of the totality of the conduct she alleges falls short of that required to cause a reasonable woman to feel she had been discriminated against based on her sex. She does not claim to have been subjected to any unwelcome contact; she was not herself verbally harassed, nor did she hear other women being verbally harassed; and although she was offended by the calendar with semi-naked pictures of women, the pictures she describes were not so shocking or egregious as to render No. 69’s workplace objectively hostile. Even the addition of one off-handed remark by a colleague that she would have to “sleep with someone”to get ahead, does not bring No. 69’s claims to an actionable level of severity or pervasiveness.
Because the court determines that the potential impact on No. 69 of the conduct she alleges was too attenuated to render her workplace objectively hostile, it need not address IPA’s argument that the alleged harassment was not based on sex. IPA’s motion as to No. 69 is granted. Claimant No. 72
Claimant No. 72 worked as a business coordinator and then a Recruiting Coordinator (and, according to IPA, also as an administrative assistant) at IPA from December 1999 to September 2000. She claims that after performing well as a business coordinator, she was promoted to Recruiting Coordinator. Like No. 69, No. 72 often heard male business coordinators and zone managers making sexual comments and jokes about the bodies of female business coordinators. As a result of these comments, No. 72 did not want to walk to the front of the room (as she had to do for her job), because she did not want the attention focused on her. Moreover, unlike No. 69, No. 72 did not
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merely overhear comments and jokes about other women’s bodies—she claims that some of the comments were directed at her.
No. 72 states that Richard Gottlieb, who was her manager when she was in recruiting coordination, once made a comment about how nice her legs looked in the skirt she was wearing. On another occasion, after No. 72 asked Gottlieb whether there was anything else he needed as she was leaving his office, he replied, “[u]nless you’d like to stay for –unless you’d like to do something else.” Gottlieb also massaged No. 72’s shoulders on one occasion. No. 72 claims that the manner in which Gottlieb made this comment implied a sexual invitation. No. 72 claims that in addition to Gottlieb, other male employees commented about her legs or how she looked in her clothing on several occasions.
No. 72 also makes a number of allegations relating to the amorous relationship between another female Recruiting Coordinator and Jim Slywka, a supervisor in the Recruiting Coordination department. First, No. 72 complains that she was unwillingly privy to several conversations about the couple’s sex life. Next, she states that because her female colleague was spending time in their supervisor’s office, rather than doing her job, No. 72’s job was more difficult because she had to handle a disproportionate number of incoming calls to the department. No. 72 complained about this situation, first to Rich Lubicz, then to Shelle Bareck. Lubicz responded by giving No. 72 a salary raise, but apparently no further action was taken. No. 72 claims that the only solution Bareck offered was to move No. 72 back to a position in Business Consulting, which No. 72 did not want. Bareck said that No. 72’s female colleague would not be removed from her position in recruiting coordination.
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IPA argues that No. 72’s claim cannot proceed to a jury because she “never heard anything that could not be repeated on primetime television”(quoting Baskerville, 50 F.3d at 431) and because No. 72’s allegations regarding the relationship between her colleague and her supervisor is a non-actionable “reverse quid pro quo”claim.
While it is true that No. 72 was not subjected to the kinds of graphic sexual epithets certain other claimants describe, she nevertheless was subjected to comments that she interpreted as a sexual solicitation by a supervisor. Here, the court is mindful of its presumed findings in Phase I and concludes that in an environment pervaded with sexual harassment, a reasonable woman could indeed construe Gottlieb’s comment as an invitation for sex. No. 72 was also subjected to repeated comments about her body and appearance that caused her to believe she was being judged at IPA not simply on the basis of her professional ability, but also on the basis of how she looked in a skirt. This belief was reinforced by her environment, in which sexual harassment was pervasive, and in which a colleague whose performance was demonstrably “not up to par,”but who was in a sexual relationship with a supervisor, was allowed to remain on the job, making No. 72’s job more difficult. To be clear, the point is not that No. 72 was subjected to “reverse quid pro quo”harassment as a result of her coworkers’sexual relationship. The court need not and does not express any opinion on whether such claims may, standing alone, be actionable. Although No. 72 does contend that her colleague was treated more favorably than she, regardless of whether that claim is actionable, No. 72 also alleges that the palpable effects of her coworkers’relationship contributed to an overall working environment in which women were valued as sex objects rather than as professionals.
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The totality of these circumstances could lead a reasonable woman to believe that she had been discriminated against based on her sex. Accordingly, IPA’s motion for summary judgment as to No. 72 is denied. Claimant No. 78
Claimant No. 78 was a business coordinator at IPA for approximately two months from December 1999 to February 2000. Over the course of her employment, a male employee named Fidel St. James made comments to No. 78 such as, “your booty sure look good in that skirt,”“your titties sure do look good in that shirt,”“your ass is plump,” “ooh, look at your legs.”He made these comments “Every day all day.” Because there is no question that these types of comments are actionable and that they pervaded No. 78’s environment, a jury could find that environment objectively hostile. The court rejects IPA’s argument that No. 78 does not allege severe or pervasive harassment and need not linger on this point.
Nevertheless, IPA’s second argument—that summary judgment is proper because No. 78 concedes that she did not subjectively perceive her environment as hostile— requires further examination. Indeed, the impact of alleged harassment upon a complainant is viewed both objectively and subjectively. “The work environment cannot be described as ‘hostile’for purposes of Title VII unless a reasonable person would find it offensive and the plaintiff actually perceived it as such.”Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000). EEOC does not dispute IPA’s factual assertion that the incidents No. 78 experienced at IPA “didn’t bother.” Indeed, No. 78 testified at her deposition that she did not find the sexual harassment she experienced to be “overwhelmingly hostile,”and that she does not believe she suffered any kind of damage
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or harm from the alleged incidents. In its opposition to IPA’s summary judgment motion, EEOC argues that a genuine issue of material fact nevertheless exists as to whether No. 78 perceived her work environment as hostile based on her testimony that she was “offended”by the conduct she experienced. But mere offense is not enough. Yuknis v. First Student, Inc., 481 F.3d 552, 555 (7th Cir. 2007) (constrasting “mere offense”with “serious harassment”). As noted above in relation to No. 57’s claim, an aggrieved employee is not required to invoke the word “hostile”to prevail on her claim, and even an express disavowal of that term need not, in all circumstances, be fatal. No. 78, however, goes further than merely denying that her environment was overwhelmingly hostile: she states that she was not even bothered by the harassment. For example, No. 78 testified that she never did anything about the harassment she alleges because “[i]t didn’t personally affect me. It was just offensive. People said things offensive every day. Are you gonna go and run and report that?”To further illustrate, No. 78 claims that her response to St. James’s pervasive, inappropriate remarks was, “[y]ou can talk to me however you choose to talk to me, but it’s not gonna bother me with you and you shittyass comments. So if you have nothing nice to say to me as a female then don’t say nothing at all.” No. 78 also testified that although she found the conduct at IPA offensive, it did not make her angry, it did not make her stressed, and it did not affect her work. Based on this and similar testimony, the court finds that no reasonable jury could conclude that No. 78 subjectively perceived her work environment as so hostile or abusive that it constructively altered the terms or conditions of her employment. Accordingly, IPA’s motion for summary judgment as to No. 78 is granted.
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Claimant No. 88 Claimant No. 88 worked as a business coordinator from January 25, 2001 to April
13, 2001. According to her testimony, during this time, two managers approached her from behind while she was seated at her desk and rubbed her shoulders. On each occasion, she jumped and gasped, and the unwelcome contact stopped. After the first incident, No. 88 asked her supervisor, Jim Jordan, to ask the offending manager on that occasion not to touch her. No. 88 saw Jordan call the manager immediately after she made her complaint, and that manager never rubbed her shoulders again. No. 88 did not make any reports or complaints about the second incident (which occurred after she had reported the first), but she told the second manager who touched her—Shawn Fishman— that she “didn’t like being touched that way at work.” Fishman never rubbed No. 88’s shoulders again, but he “often”put his hands on her shoulders or waist as he was walking past.
On another occasion, which the EEOC characterizes as “the most disturbing incident,”a male coworker with whom No. 88 was not friendly was walking past No. 88 in an aisle. He slowed down, said “hey, smile,”and ran his fingers along No. 88’s jawbone and neck. When No. 88 said “don’t, don’t,”the coworker “looked surprised and said, sorry.”This episode was clearly upsetting to No. 88, who cried and needed several moments to collect herself at her desk. She then reported to Jim Jordan that someone had touched her face and that she thought it was inappropriate, but she refused Jordan’s requests to tell her who the offender had been, saying, “I don’t know if I’m overreacting. I don’t want to get anyone in trouble.”That same day, another manager with whom No. 88 was friendly, Garrett Bresette, approached her about the incident and told her that if
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she wanted him to do anything about it, she would have to tell him who the offending employee was. She declined. Instead, No. 88 resigned the following day. The next day, while no longer employed by IPA, she called Bresette and told him the name of the individual who had touched her face.
In addition to the above, No. 88 heard managers, including Keith Link, use vulgar language, such as the words “shit”and “fuck.”She also heard one male manager use the word “penis”(referring to his own, apparently) when speaking to another male manager. On another occasion, she heard Link laugh loudly and say, “this guy is trying to sell me porn.”No. 88 saw Link with a video cassette, but she did not actually see what was on the video. Finally, the same coworker who later touched No. 88’s face once came over to her work area, picked up a picture of No. 88’s boyfriend from her desk, and said, “[h]ey, what are you doing with a picture of my gay lover on your desk? Is he cheating on me?” Of this incident, No. 88 states that she was “floored,”but also that she “could tell that he was being theatrical. And he thought he was being very funny.”
No. 88 reports that other than the incidents above, she did not personally see or hear anything at IPA that she considered sexual harassment.
IPA argues first that these allegations do not reach the level of severity or pervasiveness necessary to withstand summary judgment. IPA also argues that it took appropriate steps in response to the alleged harassment. Because the court agrees with IPA’s first argument, it need not reach the second.
The two two-or-three-second shoulder rubs No. 88 alleges, while clearly unwelcome, are simply too innocuous, even in the context of No. 88’s other allegations, to support her claim. Even the face-touching incident, which EEOC deems the “most
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disturbing,” and which unquestionably provoked a strong reaction by No. 88, nevertheless is not the type of physical conduct that is so egregious that even one instance would make a reasonable woman experience her workplace as hostile. The gesture was not intimidating or threatening (indeed, No. 88 testifies that the offender was surprised by her response and apologized), nor was it particularly sexually suggestive in nature. In Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) the court contrasted the forceful kiss it found sufficient to survive summary judgment in that case with certain types of less serious physical contact: “There are some forms of physical contact which, although unwelcome and uncomfortable for the person touched, are relatively minor. Cumulatively or in conjunction with other harassment, such acts might become sufficiently pervasive to support a hostile environment claim, but if few and far between typically will not be severe enough to be actionable in and of themselves.”The physical contact No. 88 describes, even considered cumulatively and together with her claims of verbal harassment, falls into this category.
No. 88 does not claim to have seen pornography at IPA, only that she heard a manager discussing it. This is not actionable harassment. See Yuknis, 481 F.3d at 555 (manager’s allegedly watching pornography on his office computer had insufficient impact on plaintiff’s workplace to render environment hostile). Likewise, No. 88’s coworker’s joke about her boyfriend’s photograph is off-color, but it not the stuff of sexual harassment.
Despite the sexual harassment the court assumes was rampant at IPA, No. 88 describes being personally exposed to only a handful of annoyances. IPA’s motion for summary judgment as to No. 88 is granted.
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Claimant No. 104 Claimant No. 104 was a business coordinator at IPA for roughly six months from
January to June of 2000. She states that she wore sweaters to work nearly every day, and that each day she did, her assistant zone manager, Shawn Fishman asked her to take her sweater off so he could see her chest. He also rubbed her shoulder frequently, despite her requests that he stop. In addition, Keith Link, a manger in the “hybrids”department, told No. 104 that he wanted her to do a cheer to “pep up”the employees in the hybrids department. Link wrote the text of a cheer on paper and asked No. 104 to do it. No. 104 thought the cheer was “dirty”and told Link she would never do a cheer of that nature and would not do a cheer while at work and wearing a skirt. Link’s handwritten cheer, which is included the record, reads, in part, “Do you want to see me shake it, do you want to see me bake it, do you want to see me naked, hybrids are the way.”Despite her refusal, Link asked her to do the cheer every day.
A male coworker repeatedly asked No. 104 to go out, and he brought her flowers at her desk. No. 104 declined, saying that she had a boyfriend, whereupon the male colleague told her he should kill her boyfriend so that No. 104 should be with him. He also followed her to her car every day for approximately two weeks. No. 104 reported these incidents to her zone manager and assistant zone manager. She is not aware of any action taken as a result of her complaint, nor does IPA allege that any action was taken.
Although EEOC does not rely on this testimony in opposing IPA’s motion, No. 104 stated at her deposition that a childhood friend who was also an IPA employee told No. 104 that John Burgess had offered her $5,000 in exchange for oral sex, but that she turned him down. IPA has consistently argued that claims based on hearsay such as this
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are not actionable, and indeed the court has noted that claims based on conduct that claimant merely heard about are insufficient to withstand summary judgment. Nevertheless, IPA goes to the trouble in this instance of rebutting No. 104’s testimony with an excerpt from the deposition of a woman who appears to be the referenced friend, whose name is either Diane or Toula Megalis.8 Megalis testified that she was never harassed at IPA, and specifically, that John Burgess never offered her money for oral sex. Megalis further testified that No. 104 told her that No. 104 planned to make up a false story about harassment at IPA in order to collect money in this lawsuit.
IPA argues first that the conduct No. 104 alleges is too innocuous as a matter of law to withstand summary judgment. The court cannot agree. A jury could find that a reasonable woman asked day in and day out to remove her sweater for better viewing of her breasts, and repeatedly asked to do a cheer in which she queries, “do you want to see me naked?”would find her environment hostile. No. 104’s additional allegations reinforce the image of a sexually charged workplace, in which unwelcome, even threatening amorous advances by colleagues were unexceptional. Moreover, it is not the role of this court to weigh the evidence IPA introduces to controvert No. 104’s testimony or to assess her credibility.
For the foregoing reasons, IPA’s motion for summary judgment as to No. 104 is denied. Claimant No. 107
Claimant No. 107 was employed by IPA in various capacities, including as a senior manager, from 1993 to 2000. Although she often worked in the field or from her
8 No. 104 refers to the individual by a different first name than the one identifying the testifying witness in the deposition transcript, although the last name is the same. The transcript also refers to No. 104 by a different first name than her own. The parties do not comment on these discrepancies.
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home, No. 107 typically went to IPA headquarters every day, at least during the afternoon. Most, though not all, of her allegations relate to John Burgess. No. 107 recounted several incidents in detail during her deposition, and testified that incidents she considered to be sexual harassment involving Burgess are “too many to totally recall.”A few examples follow.
During a management meeting one evening at Burgess’s house, where No. 107 was the only woman present, Burgess singled her out to ask, “[No. 107], you know why Tony [one of the male managers present] is marrying Nikki?”Burgess then answered his own question: “Well, Nikki used to be a dancer in a club and that’s where Tony met her, and Tony thinks this is real love because she’s the first girl that has been able to make him come in her mouth. Tony’s real embarrassed.”
In a similar vein, during a meeting in Burgess’s office between No. 107, Burgess, and a manager named Dan Drugan, Burgess ended the meeting with a handshake and the statement to No. 107, “You know Danny [Drugan] just got a divorce….Danny needs a blowjob.” No. 107’s states she became “uptight”at this remark, and Burgess explained, “[w]ell you’ll have to excuse me…I’m a sexual man. I’m different from other people.”
In 1997, after No. 107 had been performing extremely well at IPA, she asked Burgess why he didn’t put her in a management position. No. 107 states that Burgess “looked at [her] and he said, [No. 107], don’t you know, women cannot manage men.”
These examples, which No. 107 recounts in detail, suffice to defeat IPA’s motion. On multiple occasions, IPA’s most senior officer, with whom No. 107 was in regular contact, singled her out as the only woman in a group of men and directed graphic, sexually explicit comments to her, which No. 107 found “humiliating.”He also told her,
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essentially, that women were not fit to hold management positions, a comment No. 107 found demeaning.9 No. 107 testified that although these particular episodes (and others not mentioned here) stood out in her mind, they are merely examples of the kinds of comments Burgess made on a regular basis. No. 107 need not recall each instance of harassment in similar detail to bring her claim to a jury. Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1456 (7th Cir. 1994) (rejecting argument that because plaintiff could recall only five incidents in detail, her claim was insufficient as a matter of law, explaining that there was “sufficient evidence in the record to corroborate [the plaintiff]’s charge of ongoing conduct.”). The court has no trouble concluding that a jury considering the totality of the circumstances could find that a reasonable woman would find No. 107’s working environment hostile based on her sex.
For the foregoing reasons, IPA’s motion for summary judgment as to No. 107 is denied. Claimant No. 108
Claimant No. 108 worked as a business coordinator and Recruiter for IPA from November 11, 1998 to March 12, 1999. During that period, a male colleague asked her several times (approximately three) to perform oral sex on him in the parking lot. On each occasion, No. 108 turned her back to him and ignored his request. A different male coworker made comments such as, “Girl, you’ve got fine legs”when she walked past while wearing a skirt. No. 108 also heard male colleagues make comments on a daily basis about female coworker’s bodies. In addition, No. 108’s manager, Dmitri Kotsakis, would hug her to encourage her when she made sales, and on one occasion, Rich Lubicz, who was her manager at the time, gave her a neck massage that lasted about thirty
9 That No. 107 did, ultimately, become a manager is not fatal to her hostile environment claim.
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seconds while she was on the phone. No. 108 did not tell either manager that the contact was unwelcome, nor did she report it (or the comments she found offensive) to anyone. No. 108 testified at her deposition that the reason she did not complain about the incidents was that she thought her complaints would be fruitless. Specifically regarding the physical contact, she thought that because her supervisors knew “the boss,”nothing would be done if she complained. As to the offensive comments, she testified that they were so frequent, she assumed nothing would be done about them.
IPA asserts that these allegations are insufficiently severe or pervasive as a matter of law. While the unwelcome physical contact—which No. 108 testified was not sexual, although it made her uncomfortable—may, standing alone, fall below the threshold for actionable conduct, the cumulative effect of repeated, explicit sexual solicitations (oral sex in the parking lot), daily comments about female coworkers’body parts (including her own on at least one occasion), and unwelcome, if relatively inoffensive physical contact from her supervisors is sufficient to withstand summary judgment. Sexual harassment need not be both severe and pervasive to be actionable—one or the other suffices. Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999). A reasonable jury could find that a handful of overt sexual solicitations, in a work environment in which ongoing commentary about female workers’bodies was the norm, rendered No. 108’s work environment objectively hostile to her as a woman. Accordingly, IPA’s motion for summary judgment as to No. 108 is denied. Claimant No. 113
Claimant No. 113 was a business coordinator at IPA for approximately three weeks in October and November of 2000. Her claim rests on the following events: On
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one occasion, as she sat with No. 58 at a lunchroom table, a male coworker who was sitting across from them bent under the table. No. 113 assumed he was tying his shoe; but when he remained under the table for an unusually long time, No. 113 herself bent down to discover her colleague looking under her and No. 58’s skirts. No. 113 complained about this event to Linda, her IPA trainer, but could not identify the offender by name. No. 113 returned to speak to Linda the following day, but when Linda was unavailable, No. 113 let the matter drop.
On another occasion, as No. 113 and No. 58 walked passed a group of male colleagues, she heard someone say, “ya’ll got a big booty.” She did not know whether this comment was directed at her or at No. 58. At her deposition, No. 113 testified that she was touched on her buttocks several times (although her testimony on this point is hopelessly muddled, and it is unclear whether her claim is that she felt several hands on her on one occasion, or that she was touched on several occasions), for a “quick second.” No. 113 also testified that she saw No. 58 and No. 113’s sister (also an IPA employee) have their buttocks grabbed, to which each responded “Don’t touch me”or, “don’t put your hand on me like that.”No. 113 recalls that the man who touched No. 58 responded, “I’m sorry, I’m sorry.”The man who touched her sister simply “walked off.”
Finally, No. 113 claims that on one occasion, as she and No. 58 walked by a group of three male coworkers on their way for a cigarette break, the men grabbed them by the hands or arms and asked for their phone numbers. The women refused, and the men left them alone. At one point in her deposition, No. 58 described feeling “tortured” by getting hit on her behind and hearing comments about her body. She does not,
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however, claim that she was subjected to any comments about her body other than the “big booty”comment noted above.
No. 113’s claims cannot survive summary judgment. The episode involving the lunchroom voyeur, although creepy, is not so severe, as an isolated occurrence, or even in conjunction with the remainder of her allegations, as to render her workplace objectively hostile. Next are the incidents involving No. 113’s buttocks, and those of two of her colleagues. Unlike No. 58, who, as the court noted above, faced a daily barrage of highly graphic and offensive commentary about her derrière, in addition to several incidents of unwanted touching, No. 113 claims to have been subjected to only one comment about, and one (or possibly three) “taps”on, her behind. On another two occasions, she saw her colleagues subjected to unwelcome “grabs”on their behinds as well. It is difficult to conclude, however, based on No. 113’s description of these occurrences, that their cumulative effect on No. 113 was disturbing enough to render her working environment objectively hostile. Nor can this handful of incidents reasonably be considered pervasive, even in view of her short tenure at IPA. In sum, the untoward conduct of which No. 113 complaints falls within the “safe harbor”of conduct that is “too tepid, intermittent, or equivocal to make a reasonable woman believe she has been discriminated against based on her sex.” Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998) (quoting Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1168 (7th Cir. 1996)). Accordingly, IPA’s motion as to No. 113 is granted. Claimant No. 134
Claimant No. 134 worked at IPA from March of 1998 until April 1, 2001. On or around July 17, 2001, she filed a sexual harassment claim against IPA with the EEOC.
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Since that time, she has testified that her manager, Rich Lubicz, nicknamed her “bubble butt”and that he and other employees—both colleagues and supervisors—hit, slapped or smacked her on the buttocks regularly. She testified that she felt as though every man at IPA thought she was a slut because “[e]verybody hit me on my butt whenever they felt like it.” No. 134 claims that this bothered her, and that she told the men to stop and sometimes pushed them away or hit them back. She asserts that on one occasion, Tyler Burgess took a photograph of her backside, photocopied the photograph, and displayed the photocopies, with No. 134’s name on it, in various locations throughout the office. No. 134 calls the day on which the photocopies were displayed the “most embarrassing day of [her] life.”
In addition, No. 134 asserts that she saw male employees at IPA grab the chests or buttocks of female employees, including Elyse Neyfeldt, Lauren Neyfeldt, Evelyn Smason, Trinda Heinrich, and others. She saw some of these women tell the men to stop or hit them back. No. 134 believes that these women have not complained about this behavior because they fear for their jobs.
The foregoing recital is not exhaustive of No. 134’s claims, but it suffices to give a flavor of the environment in which she claims she worked.
IPA attacks No. 134’s complaints about the persistent bottom-smacking she and other female employees endured with the argument that No. 134 was “an active participant in—if not the instigator of—this horseplay.”The argument itself reveals the inappropriateness of summary judgment, where all reasonable inferences must be drawn in favor of the non-movant. To grant IPA’s motion based on a conclusion that the conduct No. 134 describes was not “harassment”at all because it was welcome, see Reed
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v. Shepard, 939 F.2d 484, 486-87 (7th Cir. 1991), would require the court to make inappropriate credibility findings.
Moreover, having reviewed No. 134’s deposition transcript in its entirety, the court looks askance at IPA’s characterization of the unwelcome contact she recounts as “mutual butt smacking.”Nowhere in No. 134’s testimony (or in any other evidence IPA cites), is any statement or suggestion that No. 134 smacked any male employee on the buttocks. Rather, she claims to have “hit back”one or more of the men who touched her. The court is similarly unimpressed with IPA’s rhetorical question, “How could anyone photocopy Claimant No. 134’s behind without her active participation and cooperation?” No. 134’s testimony is clearly that Tyler Burgess photographed her backside, then photocopied the picture for public display. These and other interpretive liberties IPA takes with the record do not incline the court in its favor.
IPA also takes great pains to refute No. 134’s claim that other women were sexually harassed by submitting affidavits signed by the women No. 134 identified in her testimony. These affidavits deny the incidents No. 134 recounts, either generally (“I have never been subjected to any unwelcome comments, inappropriate or unwelcome touching or any other sexual harassment by any other employee”), or specifically (“Rich Lubicz never ‘grabbed’my butt or chest”). Some go further, asserting, for example, that No. 134 encouraged the affiant to file frivolous a claim against IPA and admitted that her own claim was frivolous. To the extent these affidavits are inconsistent with No. 134’s testimony the inconsistencies only underscore the need for a jury to determine the merit of No. 134’s claim. IPA’s motion as to Claimant No. 134 is denied.
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Claimant No. 137 Claimant No. 137 worked as a business coordinator at IPA for a few weeks in
August of 2000, and again from August 25, 2001 to September 21, 2001. No. 137 testified that the reason she first left the company the first time was that it was too far away, and she had to take a bus and train to get to work. No. 137 testified that she left the second time because a colleague, Percy Houston, told her, in front of her colleagues, about a rumor going around that she was “sucking somebody’s dick”at IPA. This rumor was so upsetting to No. 137 that she cried for the rest of the day. She told her zone manager, Jim Jordan, who told her, “don’t worry about it. We’ll get to the bottom. Just get back to work. We need some leads.” No. 137 states that she followed up with Jordan, who told her he had talked to Percy, but that she continued to get “funny looks like nasty”that she believed were a result of the rumor.
No. 137 also testified that men were “constantly in [her] face”while she was on the phone working. “Constantly every day –every day it’s a different guy actually.”She claims that they made comments such as, “you thick as hell,”which she interpreted as meaning she has big breasts or buttocks, and asked her out. No. 137 states that she would tell them no, and that she was trying to work. They would leave, but then come back later for more of the same. On one occasion, a male employee said to No. 137 and a male colleague, “she thick as hell but she ugly”about a female business coordinator. No. 137 also complains that she saw male and female employees hugging, kissing, and touching each other’s “booty”in a way that she felt was inappropriate for the workplace.
No. 137 is entitled to have a jury decide whether she was discriminated against based on her sex. To begin with, although the phrase, “you thick as hell”is a novelty to
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this court, No. 137 expressed no doubt about its meaning, and it is possible that a jury would interpret it in the same manner No. 137 did: “you got big titties, big booty.” Certainly, a female worker claiming she was accosted on a daily basis with remarks about her breasts and backside in a way that interfered with her work describes conduct that is both sex-based and pervasive. Moreover, regardless of whether rumors about sexual activity are generally sufficient to support a hostile environment claim, Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007) (offense based purely on hearsay or rumor generally insufficient to support a claim), in this case, a colleague announced a sexually explicit and, evidently, humiliating rumor about No. 137 to her, in front of her colleagues. Taken together, and bearing in mind the pervasive and unchecked harassment the court assumes was rampant at IPA, a jury could find that No. 137’s workplace was both subjectively and objectively hostile to her based on her sex. IPA’s motion as to Claimant No. 137 is denied. Claimant No. 139
Claimant No. 139 was a business coordinator at IPA from July 5, 2001 to July 13, 2001. The week got off with a bang: No. 139 testified that her first day on the job, her assistant zone manager, Jason, told her that women workers were “good for nothing but being on the phone”and that “the only way that [they] could get into a nice position is if [they] sleep with him or Nick [No. 139’s zone manager].” Jason also called No. 139 “dumb”or “stupid”nine or ten times, and although she heard him call her female colleagues dumb or stupid, she never heard him speak that way to a man. No. 139 also claims that while female employees were “screamed and hollered at”if they were not on the phone, she never saw men being similarly rebuked.
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Jason also sexualized criticisms of No. 139’s work, telling her that she wasn’t performing her job well because her “boyfriend must not be doing a good job at home.” On several occasions, he said: “Your boyfriend must not be satisfying you. If you do me instead, I’ll make you happy and you’ll do better here.”After the first time he made the comment, No. 139 asked him to stop. His response was, “you know you want it.”No. 139 states that she complained to Nick, her zone manager, who responded that people were always complaining about Jason, but that Nick didn’t believe the complaints. No. 139 recounts several other incidents of verbal harassment that need not be addressed individually.
In addition, No. 139 states that she saw Jason slap a female colleague on her buttocks twice during the week that she was there. The woman told Jason to leave her alone, to which Jason replied, “you know you like it.”No 139 also heard Nick say to the same colleague, “Hey, I can see your pussy. Want me to show you what I’ve got?”
No. 139 also saw pictures of naked and partially naked women hanging in a cubicle used by a male employee. No. 139 complained to her zone manager about the pictures, but he told her that the pictures didn’t matter, as long as the men got their work done. No. 139’s tenure at IPA culminated in an argument with her zone manager, which escalated until he ultimately threw a chair at her.
IPA argues both that the foregoing incidents do not reflect sex-based harassment and that they are insufficiently severe and pervasive as a matter of law. The court rejects both arguments. First, even assuming that some of the incidents—such as the chairthrowing episode—were motivated by workplace frustration and not sexual animus, a reasonable jury could conclude, based on No. 139’s testimony, that women
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disproportionately bore the brunt of such frustration at IPA. In other words, her testimony supports the conclusion that women at IPA were “exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed,” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80. That is sexbased harassment, even if one ignores the conduct whose content was explicitly sexbased. Moreover, a jury could conclude that the episodes No. 139 relates pervaded her brief employment at IPA.
For the foregoing reasons, IPA’s motion for summary judgment as to Claimant No. 139 is denied. Claimant No. 147
Claimant No. 147 was a business coordinator at IPA from September of 2000 to July of 2002. Shortly after she began working at IPA, No. 147 was approached in the lunchroom by Richard Gottlieb (whom she did not know at the time), who told her that she had nice breasts and asked her if they were real. A few weeks later, Gottlieb again commented to No. 147 that her breasts were nice, and he asked whether she ever participated in “touch and feel.” After No. 147 made clear to Gottlieb that she was not interested, he stopped making these comments.
Approximately two months after she began working at IPA, her manager, Keith Link, called her on the phone with a proposition: “I understand that you are divorced. And you –in your fifties and well, not very –well, you’re older, not –not –you’re cute, but, you know, you’re not real attractive…. I want you to understand that I’m very good at what I do and I’m also cheap, and that anytime that you would need to have your sexual desires taken care of, your sexual needs, I’m discreet, and you can always contact
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me, and, you know, we can work it out.”No. 147 rejected the offer and said she hoped not to have any similar conversations with Link. Link did not make any further propositions.
On one occasion, as No. 147 approached the desk of her zone manager, Nick Jones, she saw that Jones, a colleague named Bob Palese, and a floor monitor named Rick Metzger were viewing, on a computer that was facing the open floor in which business coordinators worked, graphic images of men and women engaging in oral and anal sex. No. 147 asked Bob to turn the computer off. He told her to “mind [her] own fucking business.”She then addressed Rick, as the manager of the business coordinator floor and asked him to turn the computer off. Rick laughed, then had Bob turn off the computer. No. 147 complained to the business coordination manager, Liza Vitello, about male workers viewing pornography in a publicly visible area. Vitello replied, “Rick is a young guy. He doesn’t understand what it all means to be a manager yet.”Nevertheless, Vitello agreed to talk to Bob Palese about the incident. Later that day, Palese approached No. 147 in the IPA parking lot, called her a fucking bitch, and told her, “what was on the screen, we’re going to have it happen to you. You know, but maybe even worse. How would you like that? … You just wait…it’s going to happen.” No. 147 replied, “Why wait? … Go ahead and do it to me, Bob. I may not come out of this breathing…but you’re to come out of it with your fucking balls shoved down your throat.” No. 147 testified that she felt physically threatened by Palese’s comments, and that although she felt she had defended herself, “that didn’t mean to say that at any time that he would not be violent.” No. 147 reported her exchange with Palese to Vitello the following day. Vitello told her, “Bob is Bob.”
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On another occasion, No. 147 saw a teenaged female business coordinator, whom she knew as “Jenny D,”crying in her cubicle. No. 147 asked her why she was crying, and Jenny D told her that Keith Link had made “crude comments”about the size of her chest. No. 147 testified that men at IPA “always”called Jenny D “Jenny Double D.” No. 147 reported what Jenny D had told her to a manager named Mark Patenaude and asked him to speak to Link. She does not know whether he did.
In late June or early July of 2002, No. 147 sought to meet with John Burgess and Tyler Burgess to address “inappropriate behavior”towards women at IPA. She set up an appointment with the Burgesses through David Soskin. No. 147 waited for the Burgesses to call her, as planned, on the designated day. By the end of the day, when the meeting still had not been convened, No. 147 approached Soskin, who told her of the meeting, “it’s just not going to happen. They’re going on vacation and they just left in a limousine.”This was the last straw for No. 147, who quit her job at IPA and decided to join the present lawsuit. She testified that she decided to join the lawsuit because she felt “there was no other way that I could make them understand that this behavior is harmful. It’s inappropriate.”
No. 147 also recounts a handful of other incidents she heard about from colleagues; two episodes involving nude or sexually explicit images at IPA and an IPAsponsored event; and several ambiguous exchanges with managers on the topic of No. 147’s participation in the present lawsuit. During one such conversation, No. 147’s assistant zone manager told her that if she joined the lawsuit, she should quit IPA.
IPA contends that the objectionable incidents No. 147 recounts are too few and far between, and insufficiently serious, to be actionable. It is true that many claimants in
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this case allege a greater number of incidents in shorter time frames. Nevertheless, it is clear from her testimony that No. 147 subjectively found these incidents—which, it bears noting, included an explicit sexual proposition from her manager, as well as a sexually suggestive, threatening rant by an angry colleague apparently trying to intimidate her, both of which fall on the actionable side of the Baskerville line—troubling enough to report them to various managers at the company. Indeed, at different times, No. 147 complained to Liza Vitello, Dan Drugan, and Shelle Bareck, and she tried, unsuccessfully, to complain to John and Tyler Burgess. The court simply cannot conclude that the incidents No. 147 found serious enough to warrant repeated complaints to management were nevertheless so objectively benign as to fall below the threshold of actionable conduct, particularly when viewed in light of the presumed harassment that pervaded the IPA workplace. IPA’s motion for summary judgment as to Claimant No. 147 is denied. Claimant No. 149
Claimant No. 149 worked at IPA for approximately six weeks from March to May of 2002, first in inside sales, then as a business coordinator. During the time she worked as a business coordinator, she was asked to participate in a training session led by Joe Paxton.10 On the first day of the training, Paxton stared and grunted at No. 149, rubbed her shoulders and arm, peeked over her shoulder to see her breasts, told her “what a nice chest [she] had and what he could do with it.” Paxton then suggested she leave her boyfriend and told her that he drives a Jaguar and “could do a lot for [her].”Paxton also looked at No. 149’s buttocks and said, “Look at that. Look at that. Look. Look at that.”
10 No. 149 refers to this individual as Joe “Paxman”but there seems to be no dispute about the identity of the person in question, whose name is “Paxton.”
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No. 149 told Paxton to leave her alone, to which he responded by threatening to have her fired. No. 149 complained to her assistant zone manager, then her zone manager, Nick Jones. Jones asked No. 149 to identify the man who had bothered her. After No. 149 pointed out Paxton (whose last name she did not know), Jones said, “No, no no. That’s my friend. That’s my buddy and he’s a good guy. I’m trying to get him a permanent position as trainer back here.”When No. 149 refused to return the next morning to the training area where Paxton was, Jones agreed to let her work at her usual desk for the day. Later that day, No. 149 was fired. No. 149 made notes of some of the incidents she alleges here, although those notes do not appear to be in the record. She then contacted an attorney, who advised her to contact the EEOC to report the harassment. No. 149 did, in fact, call the EEOC, although it is not clear from her testimony whether there is any relationship between that call and her participation in this lawsuit.
On at least five or six occasions, No. 149 saw and heard Paxton tell a female colleague “I want to fuck you.”No. 149 also saw and heard Paxton make grunting and cat-purring noises to this colleague.
IPA contends that these incidents are insufficiently severe or pervasive as a matter of law, emphasizing the fact that Paxton’s offensive conduct toward No. 149 occurred on only one day. True enough. But when she reported the conduct to her manager, he summarily dismissed her complaint (and, adding insult to injury, told her he was trying to get the offender promoted), then abruptly fired her. These circumstances—along with No. 149’s claim that she witnessed Paxton treating a female colleague as a sex object on multiple occasions—could lead a reasonable woman to believe she had been
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discriminated against based on her sex, and No. 149 is entitled to have a jury decide her claim. IPA’s motion for summary judgment as to No. 149 is denied. Claimant No. 157
Claimant No. 157 worked in the inside sales department at IPA for approximately two months, from June to August of 2000. After her first day of work at IPA, No. 157 went out to dinner with two friends and gave them her impression of the general environment at the company: “It’s only a matter of time before they’re hit with a huge sexual harassment lawsuit.”No. 157 testified that as of that very first day, “when I left work, I was just disgusted.”Although she cannot recall the specific comments she heard on that day, throughout her employment at IPA, she heard: John Burgess make “crude” and “embarrassing”comments while No. 157 stood in his office, then turn to No. 149 and say, “it’s not sexual harassment unless they touch you”(another male colleague made the same remark another day, after telling No. 157 that she was a “pretty girl”); a male coworker ask her, “do you want to give me a blow job?”; another male coworker observe aloud, in front of other colleagues, that No. 157 had “nice legs”; and male employees, including one of her supervisors, Tony Jones or Scott Hanson, refer to women as “cunts,” “hos,”“bitches,”and “sluts.”
In addition, No. 157 was once slapped on the buttocks after she got a sale. A male colleague made her uncomfortable by repeatedly asking her out, making sexual innuendos, rubbing her shoulders, and putting his arm around her shoulder or waist and trying to pull her into him, even after she told him to “cut it out.”This conduct continued throughout No. 157’s employment at IPA.
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IPA characterizes the offensive comments No. 157 testified to as “relatively harmless,”with the exception of the blow-job invitation, which it dismisses, along with the unwelcome physical contact No. 157 alleges, as “isolated.” The court is not convinced. Although the comment about No. 157’s legs did not relate to a particularly sensitive body part, a reasonable woman may construe a comment designed to draw No. 149’s coworkers’attention to her body in the workplace (which was pervaded with sexually inappropriate conduct, as No. 149 perceived on her very first day) as demeaning to her as a worker. Treating women workers as available sexual objects rather than as professional is not harmless—it is harassment. See Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U.CHI.L.REV 1831, 1833 (2007). That women were perceived and treated this way at IPA was reinforced to No. 157 by her coworkers’and supervisors’use of sexually denigrating epithets such as “slut,”“cunt,”and “ho.”Evidence that No. 157 did not find her colleagues’conduct harmless is that she began to pretend that she was engaged or married in order to stave off their advances. Moreover, IPA’s assertion that No. 157 was subjected to unwelcome physical contact on only one occasion misrepresents her testimony: No. 157 stated that the male coworker who repeatedly asked her out and touched her did so “pretty much the whole time [she] was there.”
It is true that some of the offensive comments No. 157 alleges (such as the references to “crude”and “embarrassing”comments and “sexual innuendos”) and are too nonspecific, standing alone, to be actionable. Nevertheless, No. 157 recalls with specificity a handful of harassing incidents, and she also recalls her general impression of a sexually hostile environment. In this connection, the court is mindful of its earlier
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observation that “proof that the employer had a policy of tolerating unlawful sexual harassment does not necessarily make it more likely that any particular claimant was subject to actionable harassment.”EEOC v. Int’l Profit Assoc., Inc., 2007 WL 3120069 at *15. Here, however, No. 157 testified that she herself perceived the workplace as generally harassing, and she also recounted specific incidents that illustrated the basis for that impression. Her claim withstands summary judgment. IPA’s motion as to Claimant No. 157 is denied. Claimant No. 164
The court grants IPA’s unopposed motion for summary judgment as to Claimant No. 164. Claimant No. 166
Claimant No. 166 was an outside sales representative for IPA from August of 2000 to August of 2002. She lived in Florida throughout her employment at IPA, and she worked out of her home. No. 166 spoke to David Soskin, who was responsible for sending her sales leads, several times a day. On one occasion, Soskin offered to have sex with No. 166, saying that if she wanted him to come to Florida to have sex with her, he would. No. 166 ignored the comment and continued the conversation. No. 166 also claims that Keith Link told her “many times”that he was going to visit her in Florida and stay with her so they could have a “good time.”Link suggested she “get rid of [her] son for a week”so that Link could stay at her house and have a “good time.”No. 166 did not think Link was joking, but she ignored his “stupid, ridiculous comments”and “continued with whatever [she] had to say.”
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On one occasion, after No. 166 achieved three sales in one day, Soskin told her that he was sending her something as a gift for her performance. Soskin sent a vibrator that looked like a pink plastic penis to her house. No. 166 believes he purchased the vibrator with IPA funds. No. 166 “freaked”when she received the package and “wanted to kill”Soskin for sending the vibrator to her house, where it might have been opened by her young son. No. 166 told Soskin that it wasn’t a joke; that she didn’t take it lightly, and that if he kept “playing”with her, she would report him to John Burgess.
No. 166 states that although she performed her job well both before and after she received the vibrator, her sales dropped after the incident. No. 166 explained that she stopped working as hard because she had “less respect”for the company. No. 166 describes the consequence of the harassment she alleges as an “inability to do my job as I should have, my inability to want to deal with anybody at IPA, just being kept very out of the loop, staying out of the loop purposely because I didn’t want to be bothered.”
No. 166 visited IPA headquarters on two occasions. The first occasion was for the company Christmas party in 2001. At the party, she saw Tyler Burgess and a senior executive named John (not Burgess) grabbing female IPA employees’buttocks. She also heard Tyler Burgess ask one of the women if she wanted to do drugs and “get laid.” Several female employees told No. 166 they wanted to remain near No. 166 and her fiancé because it was a “safety zone”at the Christmas party. The woman No. 166 saw Tyler Burgess invite to “get laid”told No. 166 that she “couldn’t stand”being hit on anymore by Tyler.
IPA argues that the conduct No. 166 alleges was insufficiently severe or pervasive as a matter of law. The court disagrees. Although it is true that No. 166 did not have
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daily, face-to-face contact with her alleged harassers, she testified that the repeated telephonic sexual solicitations of two male colleagues, coupled with the surprise “gift” that one of them sent to her house, affected her ability to perform her job “at a high level.”The court cannot say, as a matter of law, that no reasonable woman would have been similarly affected by the alleged conduct. Moreover, a jury could find the vibrator incident particularly egregious, since a reasonably foreseeable consequence of sending a sex toy by mail to No. 166’s home is that other family members (such as No. 166’s young son) could open the package, potentially exposing No. 166 to extreme embarrassment. Indeed, No. 166’s testimony indicates that her upset at receiving the vibrator stemmed primarily from the concern that the package would be opened by her son. Finally, on one of the infrequent occasions on which No. 166 visited IPA’s headquarters, she saw female employees of the company being grabbed on the buttocks by a male colleague.
As the court has observed, conduct that demeans women workers by treating them as available sexual objects in a professional environment can, in certain circumstances, give rise to a hostile environment. See Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U.CHI.L.REV 1831, 1833 (2007). Here, a jury could find that the cumulative effect on a reasonable woman of multiple sexual solicitations by two colleagues with whom No. 166 had regular contact; the receipt, at her home, of an explicitly sexual object; and the observation of female coworkers being grabbed on their behinds at a company party, is sufficiently demeaning, humiliating, or offensive to render her environment hostile. Accordingly, IPA’s motion as to Claimant No. 166 is denied.
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Claimant No. 167 Claimant No. 167 worked at IPA in the inside sales department and as a business
coordinator from mid-December of 2001 through mid-March of 2002. She claims that she was subjected to comments “of a sexual nature”on a “regular, daily basis.”No. 167 recounts, for example, that shortly after she started at IPA, male business coordinators made comments such as “ooh, there’s a pretty one,”and “who are you? When did you start here? I would have known if I’ve seen you here before. Somebody as pretty as you….What’s your name, are you going out with anybody?” When No. 176’s work required that she enter an inside sales area where male employees were working, these employees would comment, “oh, it’s so good to see a sexy person in here again,”“damn, you’re looking good, you’re looking fine,”and, “you got sexier from the last time I seen you.” Male employees made theses comments every time No. 167 went into the inside sales area, which was at least once a week. One of the inside sales managers asked No. 167 to enter the area through the back entrance, rather than the front entrance because she was “too much of a distraction”to the male workers, who would stop and look at her and try to talk to her, rather than do their jobs. No. 167 states that although she was told two or three times to use the back entrance, she did not always comply because entering through the back required her to spend more time outside in the cold, snowy and wet weather.
No. 167 also states that every time she saw a recruiting manager named Nick, which was about every other day, he “over and over again made comments of ‘I have money, I can take care of you, I can treat you like a proper woman. I can give you things that you deserve.’” No. 167 interpreted some of his comments, such as “I want to take
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you home”and “I’d love to tap that”as sexual propositions. No. 167 also claims that Nick asked No. 167 to sit on his desk to talk to him, then would try to look up her skirt.
On one occasion, a male colleague named Kendrick Hughes approached No. 167 while she was seated at her desk, slapped his hand on her inner thigh and ran it down her leg, where he left his phone number written on a piece of paper. Previously, Hughes and another male employee had made unwelcome comments to No. 167. No. 167 complained about the behavior of Hughes and the other man to Garrett, her assistant zone manager, to “Rick,”the floor manager, and finally to Shelle Bareck, in human resources. She claims that after she complained, the situation became worse, as the men then made comments such as “you had to go tell, are you that much of a baby, and you can’t handle things.” Garrett also blamed No. 167 for prompting the incident, telling her that if she hadn’t been late for work on the day in question (which resulted in her sitting in the area where Hughes and the other man were, rather than at her usual desk), “it wouldn’t have happened.” A few days after the thigh-slapping episode, No. 167 returned to Bareck to get a copy of the formal report she thought had been filed, but Bareck told her that she “didn’t feel a need to file a report”because Bareck had spoken to Hughes, who had completely denied the episode, and “it’s basically [No. 167’s] word against his.”IPA’s version of Bareck’s response is somewhat different. The parties agree, however, that Bareck did ultimately create a formal report and that Bareck told Hughes that if his name ever came up again in relation to a sexual harassment complaint, he would be fired.
IPA argues that the totality of these episodes is insufficiently severe or pervasive as a matter of law to amount to an objectively hostile environment, and that IPA took prompt remedial action in any event. The court disagrees on both counts. Daily
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comments about No. 167’s attractiveness and sex appeal, even if they fall short of explicit propositions, certainly may cause a reasonable woman to feel as though her colleagues view her as a sex object rather than as a professional equal. Moreover, some of the objectionable comments were made by individuals in managerial positions, while others were made by colleagues in front of No. 167’s superiors. Under the circumstances, a reasonable woman could find such repeated comments degrading and humiliating based on her sex. Alexander v. CIT Technology Financing Services, 217 F.Supp.2d 867 (N.D. Ill. 2002), to which IPA looks for support, does not compel a different result. First of all, the Alexander plaintiff based her claims on allegations that her coworkers called her “lesbian”and “dyke”because she didn’t go out for drinks and parties after work (which comments eventually stopped) and a handful of sexually offensive comments by her male director and male supervisor. The Seventh Circuit found that over the more-than-a-year period of plaintiff’s employment, these comments were too isolated and sporadic to be actionable. Id. at 866. In this case, by contrast, No. 167 was subjected to objectionable comments on a daily basis, which continued until she left IPA. Moreover, the Alexander plaintiff did not allege unwelcome physical contact, which No. 167 asserts as a central part of her claim.
IPA also falls short of carrying its burden (recall that the burden has shifted to IPA due to the presumed pattern of sexual harassment at the company, see E.E.O.C. v. Int’l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *1 (N.D. Ill. 2008)), of proving that it responded appropriately to No. 167’s complaints. Although there is evidence that IPA took some action in response to her complaints, No. 167 testified that her work environment became “worse”after she complained. Also, although IPA makes
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much of the fact that No. 167 states she was not bothered by Hughes after she complained about him, No. 167 also testified that she deliberately stayed away from Hughes. Thus, IPA’s assertion that “the warning and reprimand to Mr. Hughes was effective as it deterred him from ever bothering [No. 167] again”is a bit disingenuous. Indeed, Shelle Bareck, who testified on behalf of IPA, stated that although Hughes was not terminated, she “didn’t know if he stayed employed for any length of time”after No. 167 complained. Under these circumstances, the fact that Hughes’s harassment stopped after No. 167 complained is not necessarily a testament to the effectiveness of IPA’s response. Moreover, No. 167 testified that some of the other incidents of harassment she suffered involved individuals in management positions, which led No. 167 to believe that any complaints she might have made about them would have been futile.
Based on the foregoing, IPA’s motion for summary judgment as to Claimant No. 167 is denied. Claimant No. 169
Claimant No. 169 worked as a business coordinator from April 26, 2001 to May 18, 2001. The parties agree that her claim rests primarily on three comments, all of which were made by a zone manager (but not No. 169’s zone manager). On the first occasion, a few days after No. 169 began working at IPA, the zone manager told No. 169 in front of ten or twelve of her colleagues that he could sit a coffee cup on her behind. The colleagues laughed at the comment, and the zone manager laughed when No. 169 asked him not to comment on her behind anymore. Indeed, the zone manager paid little mind to No. 169’s request: a few days later, he said to No. 169, while passing her in the hall, that she should wear tighter pants to “so [her] curves can show.”Several days after
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the second comment, the same zone manager asked her if she “wanted to party,” explaining that he meant, “you know, for money, sex,”and told her that her buttocks were “shaped firmly.”No. 169 quit her job shortly after the third incident.
On three occasions, she attempted to meet with John Burgess to complain about these incidents, but she was told he was not available. No. 169 did not attempt to complain to her own zone manager because she saw that he was friendly with the offending zone manager. She also did not complaint to the human resources department.
No. 169 states that she did not see any other women at IPA being sexually harassed. In fact, the reason she says she did not make a complaint while at IPA was that she believed she was “the only person…that it was happening to.”
In addition to the foregoing incidents, No. 169 complains that she was treated less favorably than her female colleagues who were “close and cuddly”with their managers. She claims that on several days, she was told there was no phone for her to use, and that she would have to bring her own phone to IPA to work.
IPA alleges that No. 169’s allegations are insufficiently severe and pervasive to support her claim, characterizing the first two episodes as “mild”and the third as “isolated.”The court simply cannot conclude that all reasonable women would agree that a comment apparently designed to draw the attention of ten to twelve of one’s colleagues to one’s backside during the first few days of one’s employment (or at any time, for that matter) can only be characterized as “mild.”Indeed, it is not far-fetched to believe that many women would blush at having a group of colleagues laugh at an apparent joke about the size and shape of their bottoms at the workplace. The second comment added
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insult to injury. And the third, when all reasonable inferences are drawn, as they must be, in No. 169’s favor, may be considered a sexual solicitation.
Arguably, the totality of these circumstances amounts to a work environment that is less pervasively hostile than that experienced by other claimants, particularly since No. 169’s disclaims seeing or hearing sexual harassment that was directed at other female employees. Nevertheless, three episodes in three weeks begins to look more like a pattern than like a series of “isolated”events, and the court rejects IPA’s attempt to parse the incidents in such a way as to allow each to be considered isolated.
McKenzie v. Illinois Dept. of Transportation, 92 F.3d 473 (7th Cir. 1996), which IPA cites for the proposition that three comments are insufficient to give rise to an actionable claim, is distinguishable. First, the offensive comments in McKenzie were not made to the plaintiff in front of a group of her colleagues. Second, the three comments in that case were made over the course of three months, not three weeks. In short, neither McKenzie nor any other of IPA’s cited authorities compels the conclusion that no reasonable woman would find No. 169’s workplace to have been hostile based on her sex. Accordingly, IPA’s motion for summary judgment of her claims is denied.11 Claimant No. 172
Claimant No. 172 was an executive secretary for Valerie Ramsdell, a senior executive at IPA, from January 6, 2003 to February 14, 2003. She bases her claim on the following incidents:
11 Because the court finds that No. 169 is entitled to have a jury decide her claims based on the three alleged comments by the zone manager, the court need not address, at this stage, what, if anything, No. 169’s perception that she was treated less favorably than colleagues who were “close and cuddly”with supervisors, adds to her claim.
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 No. 172 witnessed Tyler Burgess lean over No. 172’s colleague Cecilia while Cecilia was eating vanilla pudding and say, “I’ll lick your pudding up and down”while flicking his tongue in a provocative manner;
 No. 172 saw and heard Bryan, an executive officer, ask Cecilia, about a new pair of boots that were sitting on her desk, “are those fuck me boots?”
 No. 172 heard Tyler, Bryan, and another executive officer tell Cecilia she was beautiful and tell her she was showing “too much leg.”
 During an argument with a male colleague named Jasper, which No. 172 understood to have been prompted by the fact that No. 172 replaced Jasper as Valerie Ramsdell’s secretary, Jasper called her a “cunt.”
 No. 172 overheard parts of a conversation among three women talking in the ladies’room about having been solicited for oral sex by Tyler Burgess, during which one woman said “that was just Tyler.”
 Someone at IPA placed a stapler on No. 172’s desk with the word “fluffer”written on it;12
IPA argues that none of these allegations describes sex-based harassment, and that in any event, the allegations taken in their totality are insufficiently severe or pervasive to give rise to a hostile work environment.
It appears from No. 172’s testimony that she was indeed offended by the “inappropriate”manner in which certain male employees spoke to her colleague, Cecilia.
12 Although substantial time was devoted to the “fluffer”stapler issue during No. 172’s deposition, no testimony revealing her understanding of that word was developed. In its brief, EEOC includes a “Wikipedia”definition of the word –the court assumes this is a reference to the website www.wikipedia.org. –that defines a “fluffer”as “a hired member of the crew of a pornographic movie whose role on the set is to sexually arouse the male participants prior to the filming of scenes requiring erections.”
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In fact, after the pudding incident, No. 172 encouraged Cecilia to file a complaint, but Cecilia declined to do so. Cecilia further asked that No. 172 also refrain from filing a complaint. No. 172 claims, however, that she was sufficiently offended by the conduct to report it to Valerie Ramsdell, despite Cecilia’s request. According to No. 172, Valerie Ramsdell took no action and told No. 172 that she was “blowing it out of proportion.”
At front and center of IPA’s argument that No. 172’s allegations are not actionable is an affidavit by No. 172’s colleague Cecilia, in which Cecilia states that she has never been subjected to harassment at IPA. IPA has submitted a number of similar affidavits purporting to controvert those claims in which the claimant describes as harassment conduct that she witnessed, but of which she was not the specific target. As the court has previously noted, female employees in the “target area”of sex-based harassment are not barred from bringing claims simply because they were not the individual target of the offensive conduct. See Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007). The salient issue is the impact the conduct can reasonably be considered to have on the complainant. Thus, in each case, the question for the court is whether the alleged sex-based conduct—regardless of whether it was directed at the complainant individually, at another female employee, or at female employees generally—is sufficiently severe or pervasive, with reference to the complainant’s work environment, that a reasonable woman in the complainant’s shoes would believe that she (not the individual target, if other than the complainant) had suffered from discrimination based on her sex. In some cases—such as the violent episode described by No. 46, in which she witnessed a male colleague shout a sexually demeaning epithet to a female colleague then strike her in the face with a book—the impact on a reasonable female
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observer may be significant. Likewise, a reasonable woman who, like No. 15, heard male coworkers refer to women as “bitches”on a daily basis, and who repeatedly saw and heard men touching female colleagues on the buttocks and otherwise treating them as sex objects may find that the cumulative effect of these observations rendered her own workplace hostile, regardless of whether she herself was called a bitch, or whether the women she heard being vilified, or saw being ogled, manhandled, or otherwise objectified, themselves found the conduct offensive.
IPA suggests through argument and affidavits such as Cecilia’s that allegations of conduct directly targeting individuals who were not themselves offended by the conduct cannot support the claims of individuals who witnessed it. IPA cites no authority for this proposition, however. Indeed, it is arguably inconsistent with Yuknis, which makes plain that the focus is the impact of the alleged conduct on the complainant. Affidavits such as Cecilia’s are therefore of little value at this stage of the proceedings.13
Notwithstanding the foregoing, the court concludes that no reasonable woman could find that she was discriminated against in the terms or conditions of her employment based on the conduct No. 172 alleges. Although she heard three comments containing sexual innuendos directed at her colleague, it is difficult to construe those comments in a way that is so degrading or humiliating to No. 172 that they made her own workplace hostile. No. 172’s altercation with Jasper was, by her own description, a work-related argument, and his use of one sexually offensive epithet in the course of that
13 Further compromising the value of the asserted affidavits at this stage of the proceedings is the fact that the affiants are generally, if not uniformly, still employed by IPA. Several claimants have alleged that the women directly targeted in the incidents described are hesitant to come forward out of fear for their jobs. To the extent IPA seeks to refute the allegations of harassment with the testimony of the employees alleged to have been targeted, the credibility of the witnesses in light of their competing interests obviously must be decided by a jury.
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argument simply does not amount to sexual harassment. The remaining allegations— regarding conversations overheard in the ladies’room and the placement of a “fluffer” stapler on her desk—are simply too vague and incomplete to enable a reasonable fact finder to conclude that No. 172’s workplace environment was severely and pervasively hostile. Accordingly, IPA’s motion as to No. 172 is granted. Claimant No. 175
No. 175 worked for IPA in various capacities between July of 2001 and June of 2003, while she was in high school. She states that her school viewed her employment at IPA as an internship, and in addition to earning money, she earned credits that she needed to graduate. No. 175 is the employee who, according to other claimants, was referred to as “Jenny Double D.”No. 175 testified that sixty-percent of the male employees at IPA would call her “Jenny Double D”or “jail bait,”and would ask her when she was turning 18 so that they could ask her out. In particular, Keith Link “frequently”called her Jenny Double D, which she quantified as every day for the first six months she worked at IPA, and so often that she “can’t count.” No. 175 testified that she sometimes snapped at the people who called her these names, saying “that’s not my name,”and that on at least one occasion, the name-calling made her cry. During her first two weeks on the job, a male employee named Brian Rubenstein repeatedly commented on her breasts, asking her twice a day—and, on at least one occasion, in front of coworkers (who, according to No. 175, found the comments “hilarious”)—how big they were.
While No. 175 was still employed at IPA, Mike Rudd (whose position at IPA is unclear from the testimony, but who apparently had been made aware of comments about No. 175’s breasts) asked No. 175 if male employees in fact referred to her as Jenny
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Double D. No. 175 denied hearing these comments. She explains that she felt “influenced to give them information stating that –that that didn’t happen, because the people kind of went with it there. They all were very comfortable with joking around about sexual harassment, and I kind of felt that I had to say that it didn’t happen because of the way people acted.”
No. 175 also claims that an employee named Nate Crawford began calling her multiple times at home late at night, asking her to come to his house for drinks and to hang out in his hot tub. No. 175 does not know how Crawford got her phone number, and it scared her that he kept calling and calling. A female colleague who was with No. 175 when Crawford called her reported the calls to John Greco—Crawford’s boss—and the calls stopped. The next day, Shelle Bareck approached No. 175 about the incident and asked if No. 175 wanted to pursue action against Crawford. No. 175 explains that she declined to pursue action because she was fearful of what might happen if she did, and because she didn’t trust Shelle Bareck, who, on another occasion, had ridiculed No. 175 in front of colleagues by saying she “looked like a streetwalker”in her blue slacks and white turtleneck sweater. In addition, No. 175 stated that she had seen people being physically abused at IPA, and that as a result, she was scared to report the harassment she suffered.
No. 175 reports one incident of unwanted touching at IPA, when a male employee named Sam Bruce put his hands near her collarbone and moved them towards her breasts after she told him that her back was hurting from a car accident. Another male employee saw Bruce touching No. 175 and told him to stop, allowing No. 175 to walk away. No. 175 also saw Bruce on several occasions hug a female colleague in a manner that she
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believed was inappropriate, as Bruce would “wrap his arms around her and squeeze her and then…shake her, as if…he was like rubbing her all over himself.”
No. 175 also recounts seeing pictures of men with naked women on display throughout the company. John Greco asked No. 175 to take down the pictures that were out in the open. Greco wanted No. 175 to take the pictures down while no one was working so that the employees could not argue. In fact, some people did argue with No. 175 and refused to take down the pictures she asked them to remove.
IPA claims that the harassment suffered by No. 175 was not severe or pervasive, and that IPA took prompt remedial action. The first argument is patently without merit. No. 175 states that she was subjected to explicit, repeated comments about the size of her breasts on a daily basis, sometimes in front of her colleagues. IPA’s citation to Weiss v. Coca-Cola Bottling Company of Chicago, 990 F.2d 333 (7th Cir. 1993), in which there were no allegations of the kind of daily barrage of comments No. 175 asserts, is unavailing.
As to the second argument, although there is evidence that certain individuals at IPA took, or sought to take, action to remedy some of the objectionable conduct No. 175 describes, there is also evidence from which a jury could conclude that No. 175 reasonably believed that any complaint she made would be futile. For IPA to prevail at summary judgment there must be no dispute that (a) IPA exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that No. 175 unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v.
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Ellerth, 524 U.S. 742, 765 (1998). No. 175 is entitled to have a jury evaluate whether her response to IPA’s efforts to investigate certain of the conduct she claims was reasonable.
For the foregoing reasons, IPA’s motion for summary judgment as to Claimant No. 175 is denied.
Claimant No. 178 Claimant No. 178 was a senior area manager for IPA from July 22, 2002 until approximately the second or third week in August of 2002. In this capacity, No. 178 worked as a sales representative for the Norfolk/Virginia Beach area of Virginia. She sent a letter of resignation to her regional manager, Howard Siegel, on August 8, 2002, in which she stated that her personal financial situation made it impossible for her to continue working at IPA. No. 178 reconsidered her decision to resign, however, and agreed to accompany Siegel on visits to potential clients in her area on August 13, 2002. At that time, No. 178 had never met Siegel personally, although she had spoken with him on the telephone. She understood her outing with Siegel to be in the nature of further training. No. 178 claims that Siegel sexually harassed her throughout the “training”day. In particular, she alleges that when she arrived to pick up Siegel at his hotel, she extended her hand to shake his, but he hugged her instead. On two or three occasions while No. 178 was driving, Siegel touched, grabbed, or fondled her hand, even though No. 178 pulled her hand away on each occasion. Siegel also played with No. 178’s hair and touched her neck while she was driving, while commenting repeatedly about how “cute” she was. Once, Siegel pushed or nudged her upper thigh with his hand.
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While the two were in the car together, Siegel made several phone calls. During one call to a male business coordinator, Siegel commented on No. 178’s stature and on how cute she was. On another call, Siegel described No. 178 to another male IPA employee as an “attractive African-American”woman, and told the employee that No. 178 “liked Jewish men,”so the other employee should not try to “steal”her away from Siegel. No. 178 also claims that Siegel tried on several occasions to put his arm around her shoulder or waist, but she managed to dodge his contact. During lunch, No. 178 told Siegel that having grown up in the Norfolk, Virginia area, she could spot a naval man a mile away. Although she intended this to be a reference to the military haircut and style, Siegel replied, “because they’re so horny.”When No. 178 dropped Siegel off at his hotel at the end of the day, he asked whether she was coming in. He then told her he would love to have dinner with her. No. 178 declined both invitations.
No. 178 also claims that prior to their August 13 outing, although she generally had a decent working relationship with Siegel, he had made several comments during phone conversations that she found harassing. On one occasion, after receiving No. 178’s letter of resignation, Siegel asked what it would take to make No. 178 stay at IPA. No. 178 responded, “a sugar daddy,”to which Siegel replied, “Howie Baby is coming to the rescue.” (No. 178 claims that on their August 13 outing, Siegel revisited this topic, asking No. 178 what her family would say about his becoming her sugar daddy.) On another occasion, No. 178 called Siegel after making her first sale and told him that she thought she had “a touch of testosterone”in her that day. Siegel replied, “as long as you’re not growing anything between your legs.”
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Shortly after her outing with Siegel, No. 178 sent a fax to Shelle Bareck and John Burgess complaining about Siegel’s conduct and resigning from her position.
In addition to her complaints about Siegel, No. 178 also claims that during her training at the beginning of her tenure at IPA, No. 178 was “hit on”by a fellow trainee, who sidled up to her suggestively and said something in Spanish, which she could not understand. She asked another (male) trainee, who she believed spoke Spanish, what the first man had said. The male trainee, who had laughed while the comments were made, said, “oh, he just said you’re hot.”No. 178 believes that the Spanish-speaking would-be suitor knocked on her hotel door several times that evening, but she did not answer the door, and she avoided him the following day. No. 178 was also offended that during the training, one of the male trainees made a loud reference to “Debbie Does Dallas”because the IPA trainer was named Deborah.
IPA asserts that the conduct No. 178 alleges is insufficiently severe or pervasive to amount to actionable sexual harassment. It is true that much of the conduct No. 178 found objectionable, such as Siegel’s comments that No. 178 was “cute”and that he would love to have dinner with her, his attempt to hug her while she sought to shake his hand (who indeed has not experienced this common social misfire?), and even his offer to be No. 178’s “sugar daddy”(which was first made in response to No. 178’s own use of the term, in a conversation No. 178 herself described as “light”), is simply too tepid or ambiguous to support her claim. Nevertheless, his persistent attempts to make physical contact with No. 178 while the two were alone in the car, despite her repeated efforts to evade his conduct, are not so mild, nor are his comments to other IPA employees about her “stature.” Moreover, it is clear from the transcript of No. 178’s deposition that No.
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178 had difficulty conveying in words what she found objectionable about the manner in which Siegel touched her. In more than one instance, she resorted to a physical reenactment of the contact to demonstrate why she found it harassing. Accordingly, although it is of course uncertain whether No. 178 will ultimately be able to persuade a jury that Siegel’s conduct (even combined with the other instances of harassment she alleges) rendered her workplace objectively hostile, No. 178 is entitled to all reasonable inferences in her favor at summary judgment. No. 178 is entitled to have a fact finder evaluate whether the difficult-to-describe manner in which Siegel touched her, coupled with the comments he made to other employees, in her presence, about her physical attributes, would have made a reasonable woman believe she had been subjected to sexbased discrimination.
The court also rejects IPA’s argument that No. 178’s claim fails because she was no longer an IPA employee at the time of her “training”outing with Siegel. While it is true that No. 178 sent an initial letter of resignation prior to that date, her claim that her resignation was not “processed”and did not become effective is supported by her continued contact with Siegel and by what appears to have been their mutual efforts toward her professional development.
For these reasons, IPA’s motion for summary judgment as to Claimant No. 178 is denied. Claimant No. 180
Claimant No. 180 worked as a business coordinator for IBA (a company related to IPA) from September 8, 2003 to April 20, 2004. Her claims relate to conduct by four male employees: Aaron (a business coordinator), Chris Carstens (a colleague with whom
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No. 180 had an on-again-off-again, consensual romantic relationship), Rich Jablonski (marketing director and No. 180’s direct supervisor), and Scott Kollins (director of inside sales).
No. 180 alleges that Aaron asked her out on dates “many, many times”and responded poorly to her consistent rejection. No. 180 claims that Aaron made “fart”and other “weird”noises when he walked by her work area, and that he was “mean”to her, generally behaving in a juvenile manner. While it is true that Aaron’s conduct may have been prompted by No. 180’s rejection of his request for dates, it is impossible to conclude, based on No. 180’s description of Aaron’s adolescent antics, that his conduct was so threatening, demeaning, humiliating, or offensive that a reasonable woman in No. 180’s shoes would believe she had been discriminated against based on her sex. Moreover, No. 180’s own testimony is that the IPA managers to whom she complained about Aaron spoke to him on several occasions, after which Aaron apologized to her and essentially—if not entirely—stopped the objectionable conduct.
No. 180 also complains that after her consensual relationship with Chris Carstens soured, he wrote her sexually explicit letters, called her repeatedly at home and at work, and humiliated her at work by putting up an “I miss Buzzy”sign in his work area and telling No. 180’s coworkers that the sign was a reference to No. 180’s vibrator. IPA argues that Carstens’s conduct is not actionable under Title VII because it was not the result of sex discrimination, but rather “personal animosity arising from the failure of [a] relationship.”Kaminski v. Freight-A-Ranger, Inc., No. 01 C 4937, 2002 WL 31174461 at *3-4 (Sept. 30, N.D. Ill. 2002) (Gottschall, J.). Indeed, the undisputed evidence is that, as in Kaminski, Carstens’s conduct was the unfortunate product of his failed relationship
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with No. 180, not of sex discrimination in the workplace. In the absence of contrary evidence, the court might nevertheless find that the presumed environment of pervasive sexual harassment could be deemed to have exacerbated No. 180’s problem with Carstens, since Carstens may have felt free, in such an environment, to humiliate No. 180 sexually at work. The undisputed evidence, however, is that No. 180’s managers took effective remedial action to put an end to Carstens’s offensive conduct. Specifically, both No. 180 and Carstens were required to sign an agreement not to have any contact with one another. The agreement specified that disciplinary action, including termination, may result from breaching the agreement, and No. 180 testified that she understood she and Carstens would “get in trouble”at work if they did not abide by the agreement. No. 180 stated that this action was effective in curtailing Carstens’s behavior.
That leaves No. 180’s allegations relating to Jablonski and Kollins, both of whom appear to have been in supervisory positions to No. 180. No. 180 testified that Jablonski made comments like “Oh, [No. 180], oh, you look so good,”and “What I would love to do to you if I wasn’t married.” No. 180 stated that she believed these comments were inappropriate because Jablonski was her supervisor, but she also said the comments didn’t really bother her, that Jablonski was “a real nice guy,”and that he never touched her or “suggested anything.” In light of this testimony, it is difficult to conclude that Jablonski’s comments rendered No. 180’s workplace objectively or subjectively hostile. Kollins’s comments, however, were less benign. According to No. 180’s testimony, during an “off”period of her on-again-off-again relationship with Carstens, Kollins warned No. 180 not to get back together with Carstens, and said that if she did, she would “owe him [Kollins] a blowjob.” When No. 180 ultimately did get back with Carstens,
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Kollins allegedly called her into his office and said, “what about our part of the deal?” which No. 180 interpreted as a request for oral sex. No. 180 claims she told him no, saying, “I can’t. You’re my boss.”She then walked out of Kollins’s office. On another occasion, apparently in the course of No. 180’s report to Jablonski and Kollins about Carstens’s behavior, Kollins began asking No. 180 “detailed sex questions.” No. 180 does not, however, remember any of the specific questions Kollins asked.
While it is clear that No. 180 suffered significantly during the time she worked at IPA (she testified that she became unable to work and requested a leave of absence to seek intensive treatment for depression), the court shares IPA’s impression that the bulk of her issues relate to her rocky relationship with Carstens, which IPA management appears to have dealt with effectively. Nevertheless, the court cannot determine, as a matter of law, that Kollins’s alleged inappropriate conduct had no role in No. 180’s suffering. In an environment of pervasive sexual harassment, a jury could conclude, as No. 180 evidently did, that Kollins was, indeed, soliciting oral sex when he asked, “what about our part of the deal?” Moreover, while it is true that No. 180’s inability to recall the specifics of Kollins’s “sex questions”makes it difficult to ascertain the impact they may reasonably have had on her, it is also true that a jury might reasonably conclude that any such questions from a work supervisor are inappropriate. IPA contends that in any event, Kollins’s comments amount to no more than isolated and non-threatening sexual advances or suggestive comments by a supervisor (No. 180 complains about three incidents involving Kollins over the seven-and-a-half months of her employment), which could not have measurably affected what was already an extremely unpleasant situation for No. 180. This may be true, but it not the court’s role to weigh the relative
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contributions of No. 180’s personal problems and her supervisor’s inappropriate sexual comments to determine the origin of her evident workplace suffering.
For the foregoing reasons, IPA’s motion as to Claimant No. 180 is denied. Claimant No. 186
The court grants IPA’s unopposed motion for summary judgment as to Claimant No. 186. Claimant No. 187
The parties dispute how long Claimant No. 187 was employed by IPA, but they agree that she was a business coordinator for several weeks in January (and possibly February) of 2002. No. 187 claims that she was subjected to ongoing sexual harassment in the form of sexually suggestive comments or sexual solicitations from the time she began her training at IPA. In particular, she states that during the training, several men made comments such as “you’re fine”and asked whether she was married. Although she was not married, No. 187 told the men that she was and even wore a ring to work in attempt to ward off her male colleagues’unwelcome advances. No. 187 claims that she told the men she was not interested, but they persisted in making suggestive comments, such as “I could do anything he could do”and “he doesn’t have to know,”referring to her (fictitious) husband. Two men in particular continued to harass her by whispering comments in her ear as they walked by, or by ogling her legs while saying, “mmm.”On one occasion, one of these men touched No. 187 on the buttocks by sticking his hand on her seat, just as she was about to sit down. No. 187 claims that in context, it was apparent that incident was not accidental.
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No. 187 claims that this conduct occurred throughout her employment, often in front of her manager, Dmitri, whose desk was next to her cubicle. Rather than reprimand No. 187’s male colleagues for their behavior, Dmitri merely laughed at or ignored their comments. Immediately after the hand-on-the-chair episode, No. 187 complained to Dmitri about the incident. He responded that “that’s just the way men are,”and observed that her “tight pants aren’t helping.”
IPA argues that the conduct No. 187 alleges is not severe and pervasive. IPA’s version of the facts, however, misrepresents No. 187’s testimony. IPA claims she was subjected to “only a few”objectionable comments, whereas No. 187 testified that four or five men initially made comments to her at orientation, and that two of the men persisted despite her request that they stop and the “dirty looks”she would give them. No. 187 further testified that these comments continued after her orientation and throughout the time she worked at IPA, including in front of her manager. That the comments were nonthreatening and non-explicit, as IPA argues, is not dispositive. Moreover, IPA’s assertion that No. 187 was “never asked for sex”is debatable, as one reasonable interpretation, in context, of comments such as “he doesn’t have to know,”is as an invitation to engage in a sexual affair.
In sum, the behavior No. 187 describes can reasonably be characterized as pervasive (particularly in light of the short duration of No. 187’s employment—a point IPA is quick to raise, but which hurts, rather than helps its cause) and, in an environment in which sexual harassment is presumed to be rampant, could lead a reasonable woman to believe she had been discriminated against based on her sex. The alleged reaction of No. 187’s supervisor to her complaint reinforces the court’s conclusion that whether a
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reasonable woman would find No. 187’s work environment hostile must be left for the jury. IPA’s motion as to Claimant No. 187 is denied. Claimant No. 188
Claimant No. 188 worked in inside sales and as a business coordinator at IPA from August 2, 2004 through approximately December 30, 2004. During her first few weeks at IPA, she became friendly with a male employee named Vernon Tynes. At some point, No. 188’s conversations with Tynes began to venture into the “sexual arena.”IPA asserts that these conversations were “initiated by both parties”and that No. 188 knew that she and Tynes were just “joking around.” The evidence does not support this characterization. At several points in her deposition, No. 188 responded to the question, “did you think [Tynes] was joking?”by responding that she “hoped”he was. Although No. 188 stated that she tried to “laugh off”or “redirect”Tynes’s comments, in context, the interpretation that the two were mutually “joking around”is debatable. For example, in one instance, Tynes asked No. 188 what she wore under her suit, and asked whether, if he bought her a bra and panties, she would wear them. No. 188 told him that she would not, and that she “didn’t think he belonged asking [her] those types of things.”There is no evidence that No. 188 was joking, or believed Tynes was joking, for that part of the conversation.
In what may have been part of the same conversation (the testimony is muddled on the timing), Tynes asked No. 188 to perform oral sex on him in his office, since she was “too busy at home.” No. 188 again stated that she “hoped”Tynes was joking and tried to change the subject. Tynes revisited his request for oral sex later that day, when No. 188 was again in Tynes’s office. No. 188 said that she had discussed the topic with
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her friend over lunch, and that the friend suggested No. 188 tell Tynes she would perform oral sex on him for $1,000. An exchange ensued between Tynes and No. 188 relating to this suggestion. No. 188 testified that this exchange was indeed a joke, and that she subsequently made clear that although she valued Tynes as a friend, their relationship would never go beyond “platonic and innocent friendship,”which she believed Tynes understood.
As No. 188 emerged from Tynes’s office on this occasion, she ran into her supervisor, Nick Daglas. She related her exchange with Tynes to Daglas, who was “very concerned”and asked if she wanted to pursue the matter with the HR department. No. 188 declined, telling Daglas that she was “fearful for her job.”That same day, No. 188 asked Tynes for a ride home after work. She claims that during the ride, Tynes repeatedly touched her, placing his hand on her thigh, her hand on his thigh, near his groin (which he suggested she “squeeze”), and unbuttoning her blouse and touching her breast. No. 188 “protested profusely”and tried to move away from his contact. No. 188’s supervisor reported this incident to the human resources department (No. 188 was dismayed that he had done so, still fearful of losing her job), and No. 188 later met with John Burgess, Richard Atkinson, and Mike Rudd to discuss the incident. According to No. 188, Burgess asked No. 188 what action she would like to see taken, and because she believed Tynes had harassed other women, she said she wanted to see him terminated. No. 188 claims that Burgess said, “okay, done,”but that in fact, Tynes was only suspended with pay, then moved to a position in which he worked primarily off of IPA’s premises, but still reported to IPA on a daily basis, where No. 188 saw him in the parking lot on at least one occasion and became “very uncomfortable and very scared.”
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Nevertheless, No. 188 testified that she had no further contact with Tynes after he was transferred.
In the ensuing months, No. 188 was very successful at IPA, and several of her supervisors told her she was “number one”in the business coordination program department. Nevertheless, No. 188 believes that she was treated unfairly at IPA as a result of her complaint about Tynes. She states that she was “shunned”at the office, and that people who once considered her “number one”began to look at her as though she were “a piece of garbage.”In particular, No. 188 claims that she was denied promotions that she had been promised and that she was ultimately terminated on the ground that she had abandoned her job, when in fact her absence had been authorized.
IPA’s response to these claims is that 1) No. 188’s harassment was neither severe nor pervasive; 2) IPA took prompt, appropriate action in response to No. 188’s complaint about Tynes, barring her claim insofar as it is based on Tynes’s alleged conduct; and 3) No. 188 cannot assert a retaliation claim because no such claim was raised in EEOC’s complaint.
In response to IPA’s final argument, EEOC states that it is not asserting a retaliation claim. The court thus considers only whether No. 188’s claim can withstand summary judgment based on a hostile environment theory.
The court rejects out of hand the argument that the alleged harassment was insufficiently severe or pervasive. No. 188’s description of the episode in which Tynes gave her a ride home from work merits EEOC’s characterization of the event as an assault (actually, a “battery”might also be appropriate, based on the allegations). The court has no trouble concluding that a jury could find this incident, particularly coupled
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with Tynes’s comments about buying lingerie for No. 188 and his solicitations for oral sex, severe enough to render No. 188’s working environment objectively hostile. Moreover, even assuming that the earlier conversations were “consensual”and “joking” (although as noted, that characterization is not unassailable), the incident in Tynes’s car is arguably severe enough, even standing alone, to support No. 188’s claim.
IPA’s second argument is somewhat more persuasive. Nevertheless, it falls short of proving IPA cannot be held liable as a matter of law. IPA emphasizes that under Title VII, it is a complete defense to employer liability if the employer “took prompt and effective remedial action reasonably likely to prevent the harassment from recurring,” Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000), and argues that this is precisely what IPA did by suspending Tynes (it does not dispute that Tynes was suspended with pay) and transferring him to a position in which he would have little or no contact with No. 188. The EEOC derides this response as effectively rewarding Tynes (who received what was in essence a paid vacation, then returned to a full-time position at IPA) while punishing No. 188 (who was “shunned”by her colleagues and supervisors). EEOC also argues that No. 188’s supervisor Deglas should have reported Tynes’s conduct as soon as he learned of it, despite the fact that No. 188 asked him not to, since No. 188 told him that the reason she did not want to report Tynes was that she “feared for her job.”EEOC asserts that had Deglas acted appropriately by reporting the incident in Tynes’s office forthwith, the more serious incident that occurred in Tynes’s car later that day could have been avoided.
Addressing EEOC’s argument about the appropriateness of Tynes’s “punishment,”IPA insists that “the question is not whether the punishment was
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proportionate to [the] offense but whether [the employer] responded with appropriate remedial action reasonably likely under the circumstances to prevent the conduct from recurring.” Tutman, 209 F.3d at 1049. In Tutman, a worker who had made “grossly inappropriate”comments that a coworker interpreted as a racially motivated physical threat was formally reprimanded and warned that future misconduct would result in more serious discipline; required to participate in a three-day workplace sensitivity seminar; and required to apologize to the victim. In addition, the employer agreed to allow the victim to receive his assignments by telephone and to segregate the two employees by “staggering shifts,”the result of which would be that the two would have “no contact with each other at work.” Id. The aggrieved employee claimed that the employer’s response was “insufficiently punitive”as to the aggressor. The court rejected this argument, reasoning that the employer’s response “served to terminate all contact between [the harasser] and [the plaintiff] and bring a definitive end to any harassment.” Id., quoting Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 535 (7th Cir. 1993) (modifications in Tutman).
Here, No. 188 concedes that Tynes no longer harassed her after she reported him. Nevertheless, the position to which Tynes was transferred was one in which he was still required to report to the premises where No. 188 worked on a daily basis, and No. 188 did, in fact, see him there, which she claims made her feel “very uncomfortable and very scared,”enough so that she asked to leave work early that day.14 Regardless of whether No. 188 considered Tynes’s “punishment” insufficiently severe (or whether it corresponded to the punishment No. 188 claims John Burgess promised to mete out), or whether No. 188 managed to avoid Tynes when she spotted him on one of his daily visits
14 She did not, however, leave early, as she claims she was told she would be fired for doing so.
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to IPA there is a question of fact as to whether IPA’s course of action was reasonably likely to effect a “definitive end”to Tynes’s harassment. Similarly, No. 188 is entitled to have a jury decide whether Deglas’s decision not to report immediately the comments No. 188 told him Tynes had made while in his office was reasonable under the circumstances. Accordingly, IPA is not entitled to summary judgment on the ground that it took prompt remedial action after learning Tynes had harassed No. 188.15
Claimant No. 189 Claimant No. 189 worked at IPA during the summer of 1999 (the parties dispute the dates of her employment), when she was sixteen years old. No. 189 began as a business coordinator but was terminated from that position after one week. She worked as a recruiter for the remainder of her employment at IPA. No. 189 claims that while she worked as a business coordinator, she would routinely see a group of female colleagues dressed in provocative clothing16 hanging around the male managers, sitting on their desks, and touching or caressing them. No. 189 did not wear provocative clothing. She was terminated as a business coordinator at the end of her first week on the ground that she did not make enough phone calls. No. 189 believes that she did, in fact, make the required number of calls (she states that she made about forty calls an hour, and while she cannot recall the exact number she was
15 Because No. 188’s claim survives summary judgment on the basis set forth above, the court declines to consider at this stage whether the allegations that she suffered adverse treatment after reporting her harassment support of her claim. 16 Counsel for IPA began to develop No. 189’s testimony about how these women were dressed specifically, but his questioning soon degenerated—as it did on many other occasions throughout the deposition—into a series of interruptions and snide mischaracterizations of No. 189’s testimony, with the result that this testimony was not developed. Because the claimant is entitled to all reasonable inferences in her favor, where counsel’s questioning obstructed the development of facts underlying her claims—in this example, the manner of dress she considered “provocative”—the court assumes that if these facts were developed, a reasonable jury could interpret them in the manner No. 189 claims she did.
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required to make, she believes that she met the minimum number), although she admits that she did not successfully set any appointments in her first week.
Beginning the next week, No. 189 worked in recruiting, where Jason was her supervisor. When she was hired by recruiting, Jason said to her, “you’re a cute girl. You’ll go far here.” No. 189 interpreted this to mean that she had been hired based on her looks, and that because she was attractive, she would be successful at the company. No. 189’s job in recruiting consisted of going to malls and other public places and handing out flyers to recruit people to participate in IPA’s training sessions to become IPA employees. Jason told her that she needed to “do whatever it takes”to get people to IPA. No. 189 did not initially understand what Jason meant by this, so he explained: she would have to “promise them date[s], go on dates with them to bring them in.” Jason also told her that she needed to dress more provocatively and wear shorter skirts, telling her “less is better”and using words like “sexy,”to describe the way she should dress. When No. 189 called Jason during the day, he would ask her what she was wearing. No. 189 told Jason on several occasions that she found his comments inappropriate, and that she would not wear shorter skirts. No. 189 felt like a prostitute, and like IPA was “pimping [her] out.”
No. 189 also claims that Jason and another man in the department hit on her on a daily basis. Jason asked her on a date once, and she declined. Although he did not ask her out again, he continued flirting with her and commenting on her appearance. Jason told No. 189, “you need to give head to get ahead,”which she interpreted as meaning that she needed to perform oral sex to be successful at IPA.
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IPA first argues that No. 189’s claims are not actionable because they are based on speculation and unfounded assumptions. The court disagrees. IPA argues that there is no factual support for the assertion that No. 189 was transferred from the business coordination department to recruiting for not wearing skirts, since no one told her she had to wear a skirt, and because there was a plausible business reason for her transfer. This argument might have more weight if the claim were that No. 189 was subjected to an adverse employment action for not wearing skirts. That is not the nature of the claim, however. No. 189 claims that her supervisor’s explicit, repeated instructions to dress “sexy”and wear short skirts (among other things), in addition to his constant flirting and running commentary on her appearance, created an environment in which she believed that she was judged by her appearance, and that her value to the company was similar to the value of a prostitute to a pimp. The manner in which No. 189 saw other employees behaving (scantily clad women hanging around and caressing managers, for example) reinforced her impression that woman were primarily valued as sex objects, rather than professionals, in the workplace.
IPA also argues that No. 189’s allegations are insufficiently severe or pervasive, but it wholly mischaracterizes her claim as arising out of one individual comment. No. 189 plainly testified that she was subjected to “constant”unwelcome flirting, in addition to the repeated instructions she received regarding her dress and the manner in which she was to recruit employees to IPA. Whether a reasonable woman in No. 189’s shoes would feel she had been discriminated against based on her sex must be left for a jury. IPA’s motion as to Claimant No. 189 is denied.
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III. CONCLUSION For the reasons set forth above, IPA’s motions for summary judgment with respect to Claimants Nos. 39, 55, 57, 69, 78, 88, 113, 164, 172, and 186 are granted. IPA’s motions for summary judgment with respect to Claimants No. 2, 7, 15, 17, 21, 37, 43, 46, 56, 58, 61, 72, 104, 107, 108, 134, 137, 139, 147, 149, 157, 166, 167, 169, 175, 178, 180, 187, 188 and 189 are denied.

DATED: July 7, 2009

ENTER:
/s/ JOAN B. GOTTSCHALL United States District Judge

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 </s> Case: 1:01-cv-04427 Document #: 731 Filed: 03/31/10 Page 1 of 12 PageID #:14513

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v.
INTERNATIONAL PROFIT ASSOCIATES, INC.,
Defendant.

)

)

)

)

Case No. 01 C 4427

)

)

Judge Joan B. Gottschall

)

)

)

)

MEMORANDUM OPINION & ORDER

The Equal Employment Opportunity Commission (“EEOC”) brought this

employment discrimination suit against International Profit Associates, Inc. (“IPA”)

under Title VII of the Civil Rights Act of 1964, enacted as amended at 42 U.S.C. § 2000e

et seq. (2006) and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The EEOC alleges

that IPA engaged in a pattern or practice of sexual harassment and seeks prospective relief on behalf of a class1 of individual claimants. The EEOC also seeks compensatory

and punitive damages on behalf of these individual claimants. This matter is currently

before the court on IPA’s motion for summary judgment on the EEOC’s pattern or

practice claim.

1

The EEOC seeks relief on behalf of a large group of claimants, but not on behalf of a “class”

within the meaning of Rule 23 of the Federal Rules of Civil Procedure. In pursuing the requested relief, the

EEOC does not need to meet the requirements of Rule 23. See Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446

U.S. 318, 324 (1980). Nevertheless, the court uses the term “class” for purposes of convenience. Accord

EEOC v. Dial Corp., 156 F. Supp. 2d 926, 946 n.13 (N.D. Ill. 2001).

Case: 1:01-cv-04427 Document #: 731 Filed: 03/31/10 Page 2 of 12 PageID #:14514
I. BACKGROUND A. Summary Judgment
As its number denotes, this case is long in the tooth, and its age is due in large part to its extensive summary judgment history. IPA previously sought summary judgment on the individual claims in this case in a series of motions spanning several years. Prior to addressing the substance of these motions, the court, with assistance from the parties, resolved numerous questions regarding the legal framework of this case. See EEOC v. Int’l Profit Assocs., Inc. (IPA I), No. 01 C 4427, 2007 WL 844555 (N.D. Ill. Mar. 16, 2007); see also EEOC v. Int’l Profit Assocs., Inc. (IPA II), No. 01 C 4427, 2007 WL 3120069 (N.D. Ill. Oct. 23, 2007). The court then addressed IPA’s motions on the individual claims in three opinions over two years. See EEOC v. Int’l Profit Assocs., Inc. (IPA III), No. 01 C 4427, 2008 WL 4876860 (N.D. Ill. July 14, 2008); see also EEOC v. Int’l Profit Assocs., Inc., 654 F. Supp. 2d 767 (N.D. Ill. 2009); EEOC v. Int’l Profit Assocs., Inc., 647 F. Supp. 2d 951 (N.D. Ill. 2009).
IPA did not indicate that it would seek summary judgment on the EEOC’s pattern or practice claim until a September 2009 status hearing, when it requested leave to file the instant motion. In that hearing, IPA’s counsel summarized the issue meriting consideration as follows:
[H]ere’s the issue: . . . you have to look at the volumetrics, the mathematics of the number of people during the period of time in the company who were the subject of harassment versus the amount of people who go through the company to see whether or not it’s useful to talk about a pattern and practice. . . . Here’s the issue I want to brief, your Honor. If we are correct that the principles of this case law apply, and looking at the numbers over the
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period of time, the numbers of people who are plaintiffs is [sic] less than a half percent of the total workforce of IPA over the relevant period. I think that your Honor could, on the basis of that, grant us summary judgment on the pattern and practice. (Sept. 9, 2009 Tr. 6:3-13, 6:19-7:1.) Counsel repeatedly emphasized that the basis of the proposed motion, which the court granted IPA leave to file, would be a statistical argument, and made no mention of any other basis for summary judgment on the EEOC’s pattern or practice claim. However, in the instant motion, IPA goes beyond the statistical argument outlined above to also maintain that the facts and circumstances prevailing at IPA entitle it to summary judgment (even if numbers alone do not) and that, even if a pattern or practice once existed at IPA, the EEOC is not entitled to injunctive relief in this case. The parties have had nearly a decade to anticipate legal strategy in this case, and several years to anticipate their summary judgment briefs in particular. The court originally required that the parties file dispositive motions by July 15, 2004, nearly six years ago, see Doc. No. 210, and has extended that deadline three times on IPA’s motion, see Docs. Nos. 285, 289, 303, 306, 367, and several more times to adequately resolve the dozens of individual motions. The parties and the court spent over two years litigating and deciding IPA’s individual motions. During this period, IPA had the foresight to request staggered deadlines for those summary judgment motions, see Doc. No. 487, but made no mention of any forthcoming “pattern or practice” summary judgment motion. Given this extended summary judgment schedule and IPA’s in-court representation of a limited basis for the instant motion, the court will not consider IPA’s fact-intensive non-statistical arguments, and denies the instant motion on those separate
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asserted grounds. Instead, the court will consider the instant motion only on the ground presented in the September 2009 status hearing–i.e., that the number of individual claimants is too statistically insignificant to present a triable claim for a “pattern or practice” of sexual harassment. B. Section 706
The court likewise declines to reconsider its previous ruling that the EEOC can maintain its “pattern or practice” claim under section 706, 42 U.S.C. §2000e-5, which reconsideration IPA urged in a still-later filing. In IPA I, the court addressed and rejected IPA’s contention that the EEOC was not entitled to pursue a “pattern or practice” claim pursuant to section 706. See IPA I, 2007 WL 844555, at *9. Since that opinion, other courts have had the opportunity to opine on the same narrow question. IPA calls the court’s attention to a recent decision holding that the EEOC cannot pursue a pattern or practice claim under section 706. See Serrano v. Cintas Corp., Nos. 04-40132 & 0612311, 2010 WL 522846, at *13 (E.D. Mich. Feb. 9, 2010). In reaching its decision, the Serrano court summarized this court’s opinion in IPA I as well as the opinions of two other district courts on the same narrow question, ultimately departing from this court’s interpretation of section 706. Id., 2010 WL 522846, at *9-*12.
While the Serrano court’s opinion is thorough and cogent, this court declines to follow it. In EEOC v. Scolari Warehouse Markets, Inc. (Scolari), 488 F. Supp. 2d 1117, 1144-46 (D. Nev. 2007), decided just shy of two months after this court’s IPA I decision, another district court also found that section 706 permits the EEOC to pursue a “pattern or practice” claim, much like it could under section 707. The Scolari court reasoned that, while allowing “pattern or practice” claims to proceed under section 706 “creates an
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apparent redundancy in the law,” given section 707’s explicit provision for such claims, the liberal construction given to Title VII and the statute’s remedial purpose both counseled the allowance of such claims to pursue under either section. Id. at 1144-45. For the Serrano court, the Scolari holding was unjustified as against “the plain language of §§ 706 and 707.” 2010 WL 522846, at *9.
This court disagrees that the plain language of section 706 counsels a different result, as explained in IPA I. As further noted in IPA I, language from the Seventh Circuit hints that “pattern or practice” cases may proceed pursuant to section 706. See 2007 WL 8844555, at *9 (citing Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 899 (7th Cir. 1999) (“[A]s the plaintiff in a pattern-or-practice suit under § 706(f)(1) of Title VII . . .”)). Moreover, other courts in this district have allowed “pattern or practice” claims to proceed either under section 706 exclusively or under sections 706 and 707 simultaneously. See Ferguson v. Foster-Wheeler Constructors, Inc., No. 98 C 1601, 1999 WL 528200, at *1-*2 (N.D. Ill. July 13, 1999); see also Dial Corp., 156 F. Supp. 2d at 969. Finally, as the Scolari court noted, Title VII has generally been construed liberally to achieve its remedial purpose. In light of the above, and in the absence of appellate-level precedent to the contrary, the court declines to reconsider its previous ruling that the EEOC can pursue its “pattern or practice” claim pursuant to section 706.
II. LEGAL STANDARD A. Summary Judgment
Summary judgment is warranted where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
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Fed. R. Civ. P. 56(c)(2); see also Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir.
2005). All facts, and any reasonable inferences to be drawn from them, must be viewed
in the light most favorable to the non-moving party. Wis. Cent., Ltd. v. Shannon, 539
F.3d 751, 756 (7th Cir. 2008). Normal burdens of proof remain, however. A plaintiff
must set forth facts establishing genuine issues of fact regarding each of the elements
essential to its claim, or summary judgment will be entered in favor of the defendant. See
Beard v. Banks, 548 U.S. 521, 529-30 (2006); see also Johnson v. ExxonMobil Corp.,
426 F.3d 887, 892 (7th Cir. 2005).
B. Pattern or Practice
In IPA II, the court bifurcated this case into two phases–Phase I, pertaining to the
pattern or practice claim, and Phase II, pertaining to the individual claimants–and
described the manner of proof by which the EEOC’s case would proceed. See 2007 WL
3120069, at *17. The court summarized the EEOC’s Phase I burden its July 14, 2008
memorandum opinion and order as follows:
Pursuant to the court’s memorandum opinion and order of October 23, 2007 (the “October 23rd Order”), this case has been bifurcated into two phases. See E.E.O.C. v. Int’l Profit Assocs., Inc., No. 1 C 4427, 2007 WL 3120069, at *17 (N.D. Ill. Oct. 23, 2007). In Phase I, the EEOC must establish by a preponderance of the evidence that the sexual harassment that occurred at IPA during the relevant time period, taken as a whole, was so severe or pervasive that a reasonable woman would find the work environment at IPA to be hostile or abusive. Id. Furthermore, the EEOC must also demonstrate that IPA knew, or should have known, that regular or systematic sexual harassment was occurring in its offices but did not take adequate steps to address the problem. Id. A finding in the EEOC’s favor at Phase I will allow the court to award prospective relief under Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36, 97 S. Ct. 1843, 52 L.Ed.2d 396 (1977), and the court will then proceed to Phase II. Int’l Profit Assocs., Inc., 2007 WL 3120069, at *17.
IPA III, 2008 WL 4876860, at *1.
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III. ANALYSIS In International Brotherhood of Teamsters v. United States, the Supreme Court noted that statistical evidence plays an important role in proving a pattern or practice, but also instructed that such evidence is “not irrefutable” and that statistics’ “usefulness depends on all of the surrounding facts and circumstances.” 431 U.S. 324, 339-40 (1977). Here, IPA puts forth two cases to support its argument that the percentage of its current and former female employees with triable claims for sexual harassment is too low to support a pattern or practice claim. See EEOC v. Carrols Corp. (Carrols), No. 98 C 1772, 2005 WL 928534 (N.D.N.Y. Apr. 20, 2005); see also EEOC v. CRST Van Expedited, Inc. (CRST), 611 F. Supp. 2d 918 (N.D. Iowa 2009). In Carrols, the court considered whether the defendant, which operated several hundred Burger King restaurants, had engaged in a pattern or practice of tolerating sexual harassment. 2005 WL 928534, at *1. In so doing, the court compared “the number of allegations to the total number of Defendants’ [sic] female employees during the relevant period,” and found that dividing the former by the latter yielded a percentage of .367%. Id., 2005 WL 928534, at *5. The Carrols court declined to set a threshold below which the number claimants would be too statistically insignificant for a court to consider the sum of the claimants’ complaints a “pattern or practice” of harassment, stating, “Although the Court cannot articulate a specific threshold for the number of claims that is necessary to establish a pattern of practice of sexual harassment, Plaintiff’s allegations fall well short of what is required.” Id. Given this deficiency, the court granted the defendant’s motion for summary judgment. Id., 2005 WL 928534, at *6.
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In CRST, the district court granted summary judgment to the defendant trucking company on the EEOC’s pattern or practice claim. CRST, 611 F. Supp. 2d at 958. In a thorough opinion, the CRST court discussed the EEOC’s burden of proof and the role of statistical evidence in a pattern or practice case. Id. at 952-58. The CRST court found several failings in the EEOC’s evidence, including that “no more than 5.4% of the total 2,701 female drivers employed by CRST” suffered sexual harassment. Id. at 953-55. Recognizing that statistical evidence alone does not make or break the EEOC’s case, the court disclaimed a bright statistical line, much as the Carrols court had done, and even stated that no statistical evidence is necessary to prove a pattern or practice claim. Id. at 953-54. The problem the CRST court found was that, in addition to not producing sufficient statistical evidence, the EEOC failed to adduce sufficient anecdotal evidence that a pattern or practice of harassment existed. Id. at 954-55.
IPA asserts that evidence supports a finding only that .56% of its female employees in the relevant period were harassed.2 For IPA to be entitled to summary

2

In an effort to make the harassment seem even more insignificant, IPA puts substantial weight

(enough to place the statistic in bold typeface) on the fact that the 81 remaining claimants constituted just

.16% of all IPA employees, male and female. (International Profit Associates, Inc.’s Motion for Summary

Judgment on the EEOC’s “Pattern or Practice Claim (“Mot.”) 1.) That statistic is meaningless for two

reasons. First, the Carrols and CRST opinions on which IPA relies took the percentage of claimants as a

percentage of female employees, not total employees, and IPA’s reliance on these cases requires an apples-

to-apples comparison. Second, this argument ignores that some workplaces may be male-dominated,

meaning that a disproportionately high number of male employees can dilute the percentage of female

employees and, in turn, the extensiveness of any sexual harassment occurring at the workplace. Suppose

that a company in a traditionally male-dominated industry employs 60,000 employees, only 200 of whom

were female, and that, of those 200, 100 have triable claims for harassment. Following IPA, the

hypothetical company would be entitled to summary judgment, because only .167% of its overall

employees were harassed, despite the fact that fully half of its female employees were harassed.

Further dealing in numbers, IPA argues that the number of harassers as a percentage of the male

workforce, and as a percentage of total workforce, was very minor. Again, IPA’s argument cites no legal

authority, and makes little sense as a practical matter. A few highly placed harassers could harass all of the

female employees that they supervise. In so doing, the harasser-supervisors would both dramatically

increase the number of harassed female employees and clearly signal that harassment was the usual

procedure rather than the rare occurrence, which, as discussed above, is the crucial inquiry in a “pattern or

practice” case.

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judgment, then, the requisite threshold of claimants not only must exist, but must be beyond the .367% the Carrols court found wanting, the .56% that IPA claims is operative here, and the 5.4% cited by the CRST court. (If it is not beyond the CRST percentage, that court must have arrived at its conclusion by considering non-statistical matters.) However, as noted above, neither Carrols nor CRST articulated or cited any such threshold, and the latter expressly disclaimed any threshold. IPA cannot rely on CRST or Carrols for propositions that the courts themselves renounced, or for propositions that are against the Supreme Court’s clear instructions that the utility of statistics depends on the circumstances of the case. Int’l Bhd. of Teamsters, 431 U.S. at 339-40.
The statistics in Carrols render it particularly inapplicable to this case. The percentage at issue here is larger than that in Carrols, making a statistical argument based on that case weak. Moreover, while the difference between the two percentages appears small in the absolute sense, the percentage difference between the two is actually quite large; over half again as many claimants exist here as in Carrols, relative to the respective employee pools. Further, while the Carrols court calculated its percentage with a favorable view of the EEOC’s evidence, conceding many of the alleged claimants before it might not survive “a more complete analysis” of the validity of their claims, see id., 2005 WL 928634, at *3 n.8, this court has already determined that the EEOC has identified and produced evidence sufficient to support the trial of 81 claims. Had the parties in Carrols litigated summary judgment of the individual claims before the pattern
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or practice claim, as this case did, the actual difference between the two percentages may be even greater than indicated above.3
The strict numerical application of Carrols and CRST to this case is flawed not only because the courts themselves counseled against such application, and because the Carrols court presented a far different situation than that present here, but because another district court, in Scolari (previously discussed in section II.B above) found that a much smaller number of female employees, both in absolute terms and as a percentage, could support a “pattern or practice” claim. In Scolari, 17 named plaintiffs represented a class of defendant’s current and former employees who alleged that they were sexually harassed. Scolari, 488 F. Supp. 2d at 1123-24. Accepting for purposes of the summary judgment motion before it that the 17 named plaintiffs were the only viable claimants out of 5,200 employees,4 the court nevertheless concluded that the small percentage did not defeat the EEOC’s pattern or practice claim. Id. at 1131.
Two final notes regarding the limitations of a statistical argument are necessary. First, as the Scolari court aptly observed, “There are multiple reasons that people may not step forward, such as out of a fear of losing their job or being singled out for more harassment.” Id. The Scolari court’s observations about the nature of the workplace and

3

The Carrols court noted in a footnote that plaintiff’s claims, taken as true, might reveal that .563%

or .902% of female employees suffered harassment, but that such calculations “still fall well short of 1% of

Defendant’s female employees.” 2005 WL 928634, at *4 n.12. That conclusion, expressed in a footnote

without citation to authority, is mathematically accurate but neither binding on nor persuasive to this court.

4

In Scolari, the EEOC claimed that it could introduce evidence of “over 500 complaints by women

and men attesting to the hostile work environment at Scolari . . . .” 488 F. Supp. 2d at 1130. The court did

not indicate whether all 17 of the claimants that it considered for the purposes of the motion before it were

female, or whether some were male or whether the 5,200 employees cited by the Scolari court constituted

all employees, or just female employees. Id. Therefore, this court cannot determine whether, as the EEOC

claims here, 17/5,200 is the proper calculation of the claimant-to-employee percentage, or whether the

denominator is substantially less than that. It is clear, though, that the court both acknowledged that there

might have been more than 17 valid claimants and limited its consideration for the motion before it to the

17 in evidence.

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reports of harassment stand in stark contrast to the Carrols court’s statement that “the failure to report raises doubts about the existence and seriousness of the alleged harassment.” 2005 WL 928634, at *5. This court agrees with the Scolari court. Whatever the cause, there can be little doubt that employees that suffer discrimination, particularly female employees subject to sexual harassment, underreport such mistreatment. See, e.g., Theresa M. Beiner, Sex Science, & Social Knowledge: The Implication of Social Science Research on Imputing Liability to Employers for Sexual Harassment, 7 Wm. & Mary J. Women & L. 273, 307 (Winter 2001). Second, in this particular case, the utility of statistics is particularly limited by discovery boundaries. In an eminently reasonable exercise of his discretion, the magistrate judge limited the payroll records that the EEOC could discover to pre-litigation records, meaning that the EEOC could discover only post-filing alleged harassment by means of complaints filed internally within IPA and produced to the EEOC. (See Doc. No. 79.) This boundary may have exacerbated any tendency toward underreporting and, in any case, casts further doubt on IPA’s proffered statistics.
The court notes these two limitations are not an excuse to depart from IPA’s statistics, as the EEOC would do. Indeed, the EEOC has presented only 81 triable complaints; to use another numerator for the percentage at issue would ignore both this court’s previous orders and the evidence produced in this case. Moreover, the EEOC does not meaningfully contest that in the period in which IPA employed these 81 complainants, IPA employed 14,545 employees. The limitations described above undermine not the numbers themselves, but their significance as a talisman entitling IPA to summary judgment.
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Each court cited by the parties has recognized in some way the limitation, initially noted in the Supreme Court’s guidance in Teamsters, that statistics’ “usefulness depends on all of the surrounding facts and circumstances.” 431 U.S. at 339-40. Neither the case law presented nor the facts and circumstances of this case suggest that IPA’s proffered statistics, standing alone, entitle it to judgment as a matter of law. Because that is the only ground on which IPA disclosed that it would file this motion, and therefore the only ground on which the court has considered it, IPA’s motion is denied it in its entirety.
IV. CONCLUSION For the reasons stated above, the court denies IPA’s latest motion for summary judgment.

DATED: March 31, 2010

ENTER:
/s/ JOAN B. GOTTSCHALL United States District Judge

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 </s> Case: 1:01-cv-04427 Document #: 929 Filed: 02/23/12 Page 1 of 29 PageID #:17030

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
MARION TOWNSON, PHYLLIS LOPEZ, and RHONDA PORTER,
Plaintiffs-Intervenors,
v.
INTERNATIONAL PROFIT ASSOCIATES, INC.,
Defendant.

) ) ) ) ) ) ) No. 01 C 4427 ) ) The Honorable Joan B. Gottschall ) ) Magistrate Judge Morton Denlow ) ) ) ) ) ) )

REPORT TO THE PARTIES AND THE COURT PURSUANT TO PARAGRAPH 39 OF THE CONSENT DECREE

I. INTRODUCTION

We were appointed Co-Monitors pursuant to the Decree entered by the United States

District Court for the Northern District of Illinois on March 2, 2011. The present report is issued

pursuant to Paragraph 39 of the Decree, which provides:

Within one (1) year after their appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices that are related to the Statement of Intolerance of Sexual Harassment, and shall submit a written report (which shall be a public report) to EEOC, IPA and the Court setting forth the following information:

A.

an assessment of whether IPA maintains or has successfully implemented

each specific policy and practice ordered in paragraph 50 below;

B.

for each policy, procedure or practice outlined in paragraph 50 below that

has not been maintained or successfully implemented, a statement

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discussing the reason for IPA’s failure to maintain or implement such policy, procedure or practice;

C.

an evaluation of the impact of any specific changes made pursuant to this

Decree;

D.

an assessment of the effectiveness of IPA’s policies and practices for

achievement of IPA’s Statement of Intolerance of Sexual Harassment;

E.

recommendations for any changes to existing practices or programs that

the Decree Monitors deem necessary or appropriate for achieving IPA’s

statement of Intolerance of Sexual Harassment and the terms of this

Decree; and

F.

timetables for implementation and completion of compliance with any of

their recommendations, subject to the terms of this Decree.

Our activities since appointment have been comprehensive. We requested and reviewed extensive materials from ISI1 dealing with its formal policies and evaluated those policies. We

helped ISI redesign its sexual harassment policy to assure compliance with the Decree and to

make it clearer, more effective, and more useful for training. We have visited ISI headquarters in

Buffalo Grove on numerous occasions. We have had extensive telephone contact (often daily)

with ISI’s Director of Human Resources, Jon Andes, who is the principal ISI official charged

with responsibility for dealing with us and assuring compliance with the Decree, and we have

met with other top Company officials. Pursuant to paragraph 36 of the Decree, we issued a

confidential 90-day report giving our initial assessment. We have been extensively involved in

the elaborate training activities we will describe herein. We have been involved in review of

ISI’s processing of the 17 internal complaints of sexual or sex-based harassment or retaliation

that have been filed since the Decree was entered, and have occasionally had dealings with

complainants on those complaints. With the assistance of a third interviewer, we conducted

1 International Profit Associates (IPA, as it is abbreviated in the Decree) changed its name to International Services, Inc. (ISI) and will be called “ISI” in this Report.

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confidential interviews of 92 of the 419 employees at the Buffalo Grove headquarters during December 15, 16, and 17, 2011 and have tabulated and analyzed the results. We have also met on several occasions with the EEOC in connection with various issues.
Most of our dealings with the Company have been through the Executive Director, Human Resources. He deserves great credit for making this Decree work as intended. From the beginning, he made it clear to us and to the Company’s management that he is prepared to take strong measures to assure compliance with the Decree. He has responded promptly to our requests for information, has taken our advice seriously, has been candid with us, and has moved forcefully to deal with problems. He has assured us that top management of the Company is backing him on the forceful measures he has taken, and so far the evidence bears that out. He also understands that, as we will discuss in this report, there are still areas that need to be addressed. II. FORMAL POLICY REVIEW
Paragraph 50 of the Decree required ISI to change its formal sexual harassment policy to the extent necessary to comply with a list of specified requirements. At the start of our work, we were given the Company’s proposed new policy against sexual and sex-based harassment policy to review. We found it overly legalistic as well as deficient in covering all of the requirements included in the Consent Decree. We offered to write a policy modeled on earlier sexual harassment policies we have developed in other monitoring assignments under EEOC Consent Decrees. The Company accepted the rewritten policy, which complies with the requirements of paragraph 50 of the Decree and is designed to be integrated into sexual harassment prevention training. The new policy deals solely with sexual and sex-based harassment, in light of the importance of that form of harassment in the Company’s recent history. The Company
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disseminated it on May 10, 2011 to all employees with a cover memorandum, and obtained written acknowledgements from them. By this time, through an employee complaint, we realized that at least some ISI field employees did not know that the Decree had been entered at all. We therefore recommended to Mr. Andes that he send a copy of the Notice that the Decree requires to be posted at the Buffalo Grove headquarters be mailed to all employees. The Company agreed and inserted a copy of the Notice and an explanatory cover letter along with the new sexual harassment policy in the mailing of May 10, 2011.
As we had intended, and will discuss below, the new policy on sexual harassment proved to be well-suited for use in the sexual harassment training that the Company has carried out under the Decree.
We also reviewed a short “EEO Policy” contained in the materials that are given to new employees and suggested a change to make its reporting provisions consistent with the revised sexual harassment policy and to remove language that we felt might deter employees from speaking up. This was a minor repair to a provision that probably should be replaced entirely if the Company, as we believe it should, implements a complete employee handbook consistent with current human resources practices.
At our suggestion, Human Resources instituted a model complaint log designed to track all internal complaints of sexual harassment and their disposition. This tool has been utilized consistently and in a timely manner, simplifying the monitoring process substantially and will hopefully be retained by Human Resources after the monitoring ends. III. DEVELOPMENT OF AN EFFECTIVE HUMAN RESOURCES FUNCTION
Paragraph 50(D) of the Decree requires that for the duration of the Decree, ISI “shall have an experienced human resources professional, subject to approval of the Decree Monitors,
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operate and manage its human resources functions (including without limitation those related to sexual harassment).” Before the Decree was signed, ISI hired a new Executive Director of Human Resources. Because the Decree places such emphasis on this position, and because of its critical importance in carrying out the objectives of the Decree, we wish to discuss in some detail the ISI’s Human Resources function, the challenges it faces, and the progress it has made under the new Executive Director’s leadership.
It became apparent to us early on that new Executive Director inherited a Company Human Resources function in urgent need of improvement. This was not just a function of the fact that the Company had just paid millions of dollars to settle an EEOC sexual harassment lawsuit. It also was a result of basic characteristics of ISI’s business.
ISI is a family business with an unusual business model: business consulting services are sold through telemarketing. Aggressive salesmanship is essential to ISI and to the ability of its many sales employees to earn a decent living. This fact encouraged development of a “macho” sales-oriented culture over the years and it persists, particularly in the telemarketing wing of the organization. A rah-rah spirit of salesmanship prevails, with announcements made over the Buffalo Grove headquarters’ public address system every time a telephone sale is made. Moreover, the economic success of the Company clearly depends inordinately on a relatively few highly successful telemarketers – the crucial first stage of the ISI sales process that gets the Company’s foot in the door for purposes of ultimately selling its management consulting services. These “big producers” ultimately account for a high percentage of the Company’s profits.
There is nothing wrong or illegal about any of these facts. Family-owned and -operated businesses are the backbone of the American economy, and aggressive selling is a characteristic
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feature of many successful businesses. But these characteristics carry challenges and risks for the Company and especially for its Human Resources function. First, in a macho sales culture, the tone is set largely by aggressive men, and this tone can contribute to a sexually charged work environment and resulting complaints of sexual harassment. Second, when “big producers” become the subject of sexual harassment complaints, as has happened and continues to happen at ISI, there is economic pressure to treat them leniently. Third, in any family-dominated business, personal loyalties caused by long-standing ties between particular employees and the controlling family can lead to reluctance to take remedial action where it is needed and to actual or perceived instances of favoritism.
In our view, these characteristics of ISI made it vulnerable to widespread charges of sexual harassment in the past and pose a continuing challenge for its Human Resources operation. We take no position on the merit of the EEOC’s lawsuit and are not criticizing the Company’s business model or the quality of the services it sells. But a company of this size that survived a settlement of the size ISI entered into cannot afford any serious resurgence of similar accusations, whether merited or not. It needs a Human Resources function that has the power, resources, staffing and training to minimize the risks of renewed widespread accusations of unlawful conduct.
When we began our work, a number of basic features that characterize human resources operations at most companies were, and some still are, lacking at ISI. There was (and still is) no comprehensive Company employee handbook. The sexual harassment policy in place when we were appointed was inadequate. During a nearly ten-year sexual harassment lawsuit brought by the EEOC, such sexual harassment prevention training as had been given had been clearly inadequate. Human Resources had no serious decision-making role in hiring or firing. We came
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across evidence that employees were actively discouraged from taking problems with their supervisors to Human Resources.
Marginalization of the Human Resources function in corporate decision-making is not unusual in family-founded and family-controlled companies that have grown rapidly, as ISI did in the 1990s. Family members who found, own and run the business can be understandably reluctant to give substantial power over personnel decisions to the Human Resources apparatus and to decrease their own involvement in such decisions. But the professionalization of Human Resources is a necessity in today’s legal climate, particularly for a company that has just been forced to pay millions of dollars under a sweeping Consent Decree with the federal government.
Given these facts, the progress that has been made at ISI over the past year in developing a professionalized Human Resources function is remarkable, particularly given the constraints on the Executive Director at the time he took the job. When he stepped into his job, ISI had no real Human Resources “infrastructure” in place, and Human Resources so far as we can tell had never had significant independent power to address serious personnel problems. Moreover, unlike most Human Resources directors, he was required to perform his job from day to day constrained by a detailed Consent Decree and two Monitors looking over his shoulder. Under the best of circumstances, his job would be difficult and missteps were to be expected.
However, over the past twelve months, he has made significant progress in creating a Human Resources function with real powers to address and remedy problems when they arise and to prevent problems in the future, and he appears to have convinced his superiors at ISI that creating such a function is a necessity for the Company. This progress is reflected in several different areas, including (1) the increasing confidence with which Human Resources at ISI has taken measures beyond those required by the Decree to address issues such as sexual harassment,
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the Company’s dress code, and the like; (2) the increasing skill and confidence with which Human Resources has investigated internal complaints of sexual harassment and has taken remedial measures when such complaints have been substantiated; and (3) the active contribution of Human Resources to assure that training required by the Decree is not just given as required, but is taken seriously by all concerned. We will comment on each of these areas in subsequent sections of this report.
Much remains to be done before ISI’s Human Resources function can be deemed fully satisfactory for a company of this modest but significant size. On the whole, the new Executive Director is a one-man show in assuring compliance with the Decree and he has his hands more than full in trying to modernize the Human Resources function. He has a capable Assistant Director, but we recommend the Company consider increasing his professional staff. The Company still needs to professionalize materials such as an employee handbook with EEO and other policies. Finally, any company that depends on telemarketing is likely to have high turnover, and this raises issues of whether the Company’s hiring and recruitment policies and procedures are adequate. At present, Human Resources appears to have little, if any, role in these areas. This situation is contrary to current human resources practices in companies of this size. The hiring process should be assessed and managed through an EEO perspective to assure consistency in using only job-related criteria and questions in recruiting, interviewing, and hiring decisions. IV. PROCESSING OF INTERNAL COMPLAINTS OF SEXUAL HARASSMENT
The Decree requires, and the ISI sexual harassment prevention policy specifies, an internal complaint procedure and also advises persons they may file charges of discrimination with government agencies, including the EEOC.
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During the first year of the Decree, no employee has filed an EEOC or other governmentagency charge alleging sexual or sex-based harassment. However, during this period there have been seventeen complaints alleging sexual harassment that were filed pursuant to the Company’s internal procedure and generated investigations by Human Resources. The Executive Director, Human Resources handled all these investigations either personally or in conjunction with the Assistant Director. Pursuant to the Decree and arrangements we made with him, he provided us with his notes of interviews, and then provided us, in advance of carrying out any decision, with his report discussing his conclusions and proposed disposition. Through this process, we have had a detailed view of the investigative techniques and thought processes involved in all investigations.
In general, our approach has been to respect the final judgment as to the course of action taken once we were consulted and had the opportunity to have input with regard to further investigation or discussion that we felt was necessary. Our purpose was to contribute to developing an effective modus operandi for these investigations.
The early investigations revealed inadequacies in the Company’s manner of dealing with such complaints. We had to remind the Company of time limits in the Decree with respect to providing notice of complaints to us. More seriously, the Executive Director discovered in one of the early complaints that when supervisors received the initial complaint, they did not always report the complaint immediately to Human Resources. The Executive Director reacted vigorously to this information and made clear in no uncertain terms (by imposing discipline on a high-ranking official within the Company who had tried to deal with a complaint on his own) that all such complaints had to be reported immediately to him and that he, not they, was responsible for the investigation of the complaints. One particular case revealed the need to
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check the accused employee’s past record to see whether similar accusations had been made and previous discipline taken, and to decide what weight to give to such facts in disposing of the new claim. Human Resources’ collaboration with the Monitors in establishing basic procedures and maintaining ongoing communication during investigations has been exemplary.
The investigations to date have resulted in five employees being terminated; in one employee being demoted; in five employees being suspended without pay, and/or in being denied bonuses that otherwise would have been paid to them; in eight written warning notices being given; in three verbal warnings being given; in two employees being put on probation; and in one employee being given a last chance agreement. Additionally, one case entailing sexual harassment by a client resulted in the Company sending a letter to the potential client informing him that his behavior was unacceptable as well as adding the business entity to the Company’s “Do Not Call” client call list. The issue of dealing with client demands “to keep the deal from going down” came up frequently in the training sessions for field employees. We recommend that the Company be attentive to upholding its EEO Policy and Policy Against Sexual and Sex-Based Harassment relative to clients. (Throughout this Report, we have used boldface type for formal recommendations we are making to the Company pursuant to Section 39(E) of the Decree.)
In cases where no formal discipline was imposed, Human Resources most often took other prudent measures, such as separating the employees who were involved in the relevant episode or coaching the pertinent parties. One case involving a flagrant and inexcusable breach of confidentiality by an employee involved in the investigation resulted in termination of that employee. Some cases have uncovered oddities that needed to be addressed generally. For example, an abundant use of inappropriate nicknames eventually ledled Human Resources to
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discover that the Company in fact encouraged nicknames by asking applicants to indicate their preferred nicknames, which sometimes were inappropriate. This strange feature of the employment process has been eliminated.
One noteworthy trend, especially in more recent complaints, is that some of these cases came to Human Resources because managers reported them, an indication that managers are now taking seriously their obligation to report to Human Resources violations of the Policy Against Sexual and Sex-Based Harassment.
We believe that substantial and appropriate discipline is being taken in response to substantiated complaints. Some of the cases of discipline in question involved important persons within the Company, and we were impressed both with the measures that Human Resources imposed and with the support from top management.
If we have any concern in this area, it has to do with the occasional situation in which the accused employee is a “big producer.” There were instances where we had the impression that had the employee in question been a less prominent producer, the discipline proposed initially might have been more drastic; we discussed this concern with the Executive Director, Human Resources. We have not, however, disagreed with any of the ultimate outcomes...
Two complainants have exercised their right under the Decree to appeal to the Monitors from the Company’s disposition of their complaints. In both cases, we worked with Human Resources and the complainant to reach satisfactory outcomes amenable to both. V. TRAINING ON THE COMPANY’S SEXUAL HARASSMENT POLICY
The Decree imposes substantial training responsibilities on the Company. Paragraph 50(C)(5) provides that within 90 days after the dissemination of the sexual harassment policy required by the Decree, ISI shall cause to be conducted sexual harassment training for all
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employees (both at headquarters and in the field), subject to the Monitors’ oversight and approval. In addition, paragraph 50(C)(6) provides for mandatory annual refresher sexual harassment training to all employees, including all officers, managers, and supervisors (including senior managers), and mandatory sexual harassment training to all new employees during employee orientation.
When we initially met with Human Resources on April 6, 2011, the Company was on the verge of initiating training through in-house efforts and had a written outline of what the Company planned to present. We were startled at how far along the planned training was; there was even a proposed date to deliver it. We essentially called a halt to this process. We reminded Human Resources that the Decree required the Monitors’ approval of training in advance and we reviewed the materials and found them well-intentioned but ineffective. As time went on, and we acquired a sense of the corporate culture, we concluded that any in-house training effort would be inadequate and recommended that the Company hire an external experienced vendor to conduct the training. We recommended several vendors with whom we have worked in the past. Initially the Company resisted because of the financial outlay required. We allowed the Company time to develop its own revised training using on our input. Soon after, in mid-May 2011, the Company acceded to our recommendation to use an outside vendor.
After discussions with two experienced potential vendors the Company elected to contract with Seyfarth Shaw At Work (SSAW) to provide customized training. One of the Monitors met on July 6, 2011 with the Executive Director and SSAW to work on the design of the training. In addition, SSAW helped develop a “statement of core values” for the Company that became part of the training. Although a general non-harassment policy covering non-sexual or sex-based harassment is not mandated by the consent Decree, SSAW also drafted such a
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policy, for which the company sought and received Monitor input and approval, and it was incorporated into the training. A dry run delivery for the monitors and HR department was held on August 2, 2011.
The training developed by SSAW was implemented as follows. On two Saturdays in August 2011, two separate three-hour training sessions were given in Buffalo Grove for all managers, delivered by one SSAW trainer. On two Saturdays in September 2011, three two-hour sessions were given onsite for all non-supervisory Buffalo Grove employees. Human Resources staff was present in all sessions. Two makeup training sessions were held October 15, 2011 for employees who missed the earlier training. The Company’s annual employee meeting on January 14, 2012 (held in Schaumburg, a change in the Company’s previous practice of holding the annual employee meeting in Las Vegas) was used as a partial response to the problem of training the many Company employees who work in the field across the United States rather than in Buffalo Grove. SSAW provided three training sessions for any Buffalo Grove manager not previously trained as well as managers who worked in the field. Additionally, six separate sessions were held for training salespersons, (who, upon the telemarketer scheduling an appointment, visit the client to sell a business analysis), analysts, (who perform a one or two-day analysis of the business and what services it needs), and consultants (who implement the changes suggested in the business analysis).
The above efforts, however, still left a large number of employees based in the field rather than in Buffalo Grove without the required training. For these employees, the Company obtained the Monitors’ permission to use webinars rather than live training. Nine webinar sessions were held over two Saturdays in February, 2012. We were impressed by the SSAW training. It was interactive, avoided legalistic formulas, and was delivered by skilled trainers
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who kept audience interest high. As discussed below, reaction to the training in our employee interviews was favorable, although there was some discontent at the Company’s decision to conduct the main training on Saturdays. Before the training began, we had debated the value and need for training Company employees who spend all their time in the field and are not based in Buffalo Grove or any other significant office. However, it became clear that training of field personnel and managers was as needed and appreciated as training of employees clustered at the Buffalo Grove headquarters.
In addition to the SSAW training conducted through the Decree, the Company’s Human Resources Department has conducted its own sexual harassment training program every week as part of the weeklong overall training (by function) that all new hires received. Initially, SSAW offered its own version of new-hire training as part of its contract with ISI, but Human Resources was unenthusiastic about it and asked for permission to deliver new-hire training in its own way.
After taking steps to assure that the quality level of this new-hire sexual harassment training segment would be uniform, effective and compliant with the terms of the Decree regardless of who delivered it, we gave the Company permission to continue its practice of including it as part of its overall orientation training.
Monitor collaboration, approval and observation throughout all aspects of the training process occurred seamlessly. We commend the Company for its commitment to providing a bestpractices training experience, treating the training requirements of the Decree with the utmost importance, and providing the Monitors with ongoing and extremely thorough tracking of employee participation. Our only recommendation at this time related to training is that next year the Policy Against Sexual and Sex-Based Harassment be the key training policy, with the general non-harassment Policy being covered secondarily. There were times when
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key points on the former were glossed over or omitted. It was confusing to train on both policies side by side when the trainer failed to cite specific pages on the relevant policy. VI. ASSESSMENT OF THE CURRENT SITUATION WITH RESPECT TO
CONTROL OF SEXUAL HARASSMENT Our December 2011 interviews included 92 employees selected for the most part at random from an employee roster of employees based in the Buffalo Grove headquarters. 57 were women, 35 were men. Thus, we interviewed 31% of the 130 women then on the roster at the Buffalo headquarters and 12% of the 289 men. Of the 92 interviewees, 10 were managerial, 82 were non-managerial. We told interviewees that we would compile statistics from what was told to us, but promised them confidentiality in the sense that no information they gave us would be shared with ISI in any form that could be traced back to them. We interviewed on the basis of a standard questionnaire designed to produce data in statistically analyzable form. The statistical analyses were done by a retained statistical consultant; he broke the results down by gender, by managerial versus non-managerial, by white versus minority, and by those with five or more years of seniority versus those with less than five years of seniority. We followed up questions beyond the basic multiple choice responses and obtained much detailed and useful information and opinions that helped us get what we believe is an accurate understanding of the present situation at the Company. A. Summary of major statistical data. The following is a summary of what we regard as the most important statistical results of these interviews. 1. Virtually all interviewees were aware of the Decree. All but four had attended the recent sexual harassment prevention training.
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2. The interviewees were asked: “On a scale of 0 to 5, with 5 being the most severe, how much of a problem is sexual harassment in the Company today, in your opinion?” 60.44% answered 0; another 16.48% answered 1; another 12.09% answered 2; 4.40% answered 3; 5.49% answered 4; 1.10% (one interviewee) answered 5. These results did not differ much by men versus women. Approximately 90% of women respondents answered this question 0, 1, or 2, with 61.4% of all women answering 0. The ten managerial respondents (of whom seven were men) all answered this question 0 or 1, with eight of them answering 0. There was little difference between the two seniority groups in answering this question. However, minority interviewees were more likely to answer this question “3,” “4” or “5” (20% of minorities versus 6.58% of whites).
3. Similarly to asking about sexual harassment, we asked, “How much of a problem is sex-based harassment (e.g., offensive or demeaning comments about women or men) in the Company today, in your opinion?” 64.77% of the interviewees answered “0” on the 1 through 5 scale; 19.32% answered “1”; 5.68% answered “2”; 5.68% answered “3”; 2.27% answered “4”’ 2.27% answered “5.” Men were slightly more likely to take a favorable view in answering this question than women. As with the question on sexual harassment, minorities were significantly more likely to take an unfavorable view than whites.
4. We asked: “Are you aware of current sexual or sex-based harassment and/or retaliation?” 89.13% answered “no”; 3.26% answered “some”; 6.52% answered “yes”; 1.09% (one interviewee) answered “don’t know.” On this question, women were more likely than men to answer “some” or “yes” (12.58% of women versus 5.72% of men). Minorities were likewise considerably more likely to answer “some” or “yes.” There was little difference in how managers versus non-managers answered this question.
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Case: 1:01-cv-04427 Document #: 929 Filed: 02/23/12 Page 17 of 29 PageID #:17046
5. We asked: “Since the Consent Decree in March, has the working environment at ISI changed?” Of all interviewees, 56.52% answered “better”; 30.43% answered “No change (still fine); 3.26% answered “mixed”; 2.17% answered “No change (still bad)”; 7.61% answered “don’t know” or “other.” There was not much difference in these answers by subgroups.
6. In a related question, we asked: “Do you think that the Consent Decree and the new Policy Against Sexual and Sex-Based Harassment in the Workplace have played any role in controlling sexual or sex-based harassment at the [Company]?” 60.47% of all respondents said “yes,” 8.14% said “some,” 12.79% said “no,” 8.14% said “some,” and 18.60% answered “don’t know” or “other.” The general picture painted by these answers did not vary much as between women and men. Minorities, who were more likely than whites to think there had been a problem in the past, were more likely to think that the Decree had helped.
7. We asked: “Have you ever experienced any sexual or sex-based harassment yourself?” 91.01% answered “no”; 8.99% (8 interviewees) answered “yes.” Of these 8 interviewees, seven were women, and 4 were minority; all were non-managers. Persons with less than five years seniority were more likely to answer “yes” than persons who had been there at least five years.
8. We asked: “If you were being sexually harassed today, would you report it?” 87.64% answered “yes”; 8.99% answered “depends”; no one answered “no.” These results did not vary much by gender, seniority, or minority status. 100% of the managerial interviewees answered this question “yes.”
9. We asked, “Have you seen anyone else being sexually harassed since the settlement in March 2011?” 90.24% answered “no”, 9.76% answered “yes.” All those who answered “yes” were women, and all were non-managers. Minorities were significantly more
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Case: 1:01-cv-04427 Document #: 929 Filed: 02/23/12 Page 18 of 29 PageID #:17047
likely to answer “yes.” We followed up this question by asking whether those who saw such harassment of others reported it. All answered “no.”
10. We asked, “If you saw someone else being sexually harassed today, would you report it?” 77.27% answered “yes,” “20.45% answered “depends,” and 2.27% answered “don’t know” or “other.” No one flatly answered “no.” Females (and minorities) were somewhat less likely to answer “yes” and more likely to answer “depends” than men (or whites) were. All managerial interviewees answered “yes.”
11. We asked, “If you reported sexual harassment against yourself or someone else, would you worry about retaliation from coworkers?” 89.77% answered “no,” 9.69% answered “yes,” and 1.14% answered “depends.” Women (and minorities) were somewhat more likely to answer “yes” than men (or whites). All managers answered “no.”
12. We asked, “If you reported sexual harassment against yourself or someone else, would you worry about retaliation from management?” 90.91% answered “no,” 7.95% answered “yes,” and 1.14% answered “depends.” Again, women (and minorities) were somewhat more likely to answer “yes” than men (or whites). All managers answered “no.”
13. We asked all interviewees who had been through the recent sexual harassment prevention training: “Did you find the training useful?” 79.55% answered “yes,” 10.23% answered “somewhat,” and 7.95% answered “no.” The percentage of men (and minorities) answering “yes” was somewhat higher than the percentage of women (or whites). No manager answered “no” to this question.
14. We asked whether those who took the training thought that “it made a positive impact in the workplace.” 71.08% answered “yes,” 10.84% answered “some,” 7.23% answered
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“no,” and 10.84% answered “don’t know” or “other.” Again, men (and minorities) were somewhat more likely to answer “yes” to this question.
15. We asked, “Since the training, has the environment changed in terms of employees being treated more respectfully?” 55.29% answered “better,” 4.71% answered “mixed,” 3.63% answered “still bad”; 32.94% answered “still fine”; 3.53% answered “don’t know” or “other.” There was no striking difference by gender or race in these answers. Managers, as usual, had a uniformly favorable view of the situation.
16. We asked, “On a scale of 0 to 5 with 5 being most severe, how prevalent is profanity at ISI today, in your opinion?” We asked this question because in our experience there is a correlation between the general prevalence of foul language and situations that produce charges of sexual harassment. 8.99% answered 0, 23.60% answered 1, 29.21% answered 2, 19.10% answered 3, 11.24% answered 4, and 7.87% answered 5. There is no coherent pattern distinguishing the answers by gender or race; managers were less likely to find a problem with profanity than non-managers.
17. We followed up the profanity question by inquiring about the use of profanity since the training. 59.77% answered “decreased,” 29.89% answered “same,” 1.15% answered “increased,” and 9.20% answered “other.” There was no significant difference between men and women or minorities and non-minorities in answering this question.
18. We asked, “Currently, do you think your Supervisor is effective in maintaining an environment free from harassment, retaliation or abuse?” 88.64% answered “yes,” 4.55% answered “no,” 2.27% answered “somewhat,” and 4.55% answered “don’t know” or “other.” There was little variation in these answers by the subgroups analyzed.
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19. We asked: “On a scale of 0 to 5 with 5 being the best, how would you rate the general level of professionalism on the part of supervisors and managers?” Almost 80% answered 3, 4, or 5. There was little variation between men and women. Minorities were more likely to answer this question in the low range than whites were.
20. We asked a series of questions to elicit whether persons had dealt with Human Resources on issues related to harassment and if so whether they had been satisfied with how Human Resources had handled the matter. Of our interviewees, only 8 of them had had contact with Human Resources on such matters, and they were generally satisfied with the way Human Resources had conducted itself. Nearly 90% of those interviewed answered, “Yes, “to the question, “Do you currently see the Human Resources Department as a resource if you have a questions or issue to raise?”
B. Impressions and conclusions as to the present situation and steps that need to be taken
From the above statistical results, from the results of investigations of internal complaints of sexual harassment, and from the extensive information we obtained from talking to so many employees, we have formed a number of conclusions and impressions of the present situation at ISI on the subject matter of the Decree. The overall trend is very positive, but there are still areas of concern.
1. As the results of the investigations show, violations of the sexual harassment prevention policy do continue to occur. But there is no evidence that such violations are widespread or systemic. The vast majority of people we interviewed could point to no instance of sexual harassment occurring at the present time, to themselves or anyone else. Whatever may have been the situation during the period at issue in the EEOC’s lawsuit, employees feel strongly
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that the working environment has changed for the better since the Decree was entered. Employees generally gave supervisors and managers high marks for professionalism. There has been a decrease in the level of abusive and profane conduct by supervisors intent on pressuring employees into better sales performance or employees dealing with each other, although as discussed below this remains a problem among some supervisors and employees in the Business Consultant (BC) area, where the telemarketing operation is staged.
2. The Company has fully complied with its training obligations under the Decree. Most employees found that the sexual harassment prevention training was well executed and useful to them, and believe that it has contributed to the improvement in the working environment at the Company.
3. Where violations of the anti-harassment policy are reported, they are promptly and effectively investigated and serious discipline is imposed when violations are found. The investigatory process has become increasingly effective under the new Executive Director, Human Resources.
4. There is no evidence that any substantial number of employees feel that they will be retaliated against if they report instances of sexual harassment on behalf of themselves or others. Overwhelmingly, employees reported to us that they would report such instances, mainly to their supervisors, which is one of the options provided by the Company’s policy.
5. At the start of the Decree, some supervisors, including top-level ones, did not understand their responsibility to report all instances of suspected sexual harassment to Human Resources when they saw it. This has changed. The Company has effectively trained supervisors in this responsibility, and a substantial number of the investigations of internal complaints resulted when supervisors, after being contacted by affected employees, reported the matter to
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Human Resources. 6. The Executive Director, Human Resources has made strong contributions to
making the Decree work as intended. His performance has been particularly commendable in that when he was hired, his Department lacked basic powers that were needed to control and respond to instances of sexual harassment. The Human Resources Department received high marks in employee interviews for responsiveness and helpfulness. When problems in the implementation of the sexual harassment policy have became apparent, they have been addressed responsively. For example, when the Monitors documented that supervisors were telling their subordinates that they must bring any complaints of sexual harassment to them before reporting to Human Resources, a memorandum regarding the Human Resources Open Door Policy was sent to all employees explicitly emphasizing that employees “have the right to visit Human Resources for any issue at any time, without any fear of reprisal or retaliation from your supervisor or manager.” It further assured employees that “managers have been advised of this policy and have been told that there is no tolerance for their adverse treatment of employees based on the employees’ visits to Human Resources.” Our main concern about Human Resources, as we have stated above, is that the Executive Director is overworked. He faces the need to develop his department, respond to crises, and institutionalize procedures with minimal professional and support staff. We recommend that the Company invest the necessary resources and give substantial personnel powers to its Human Resources operation.
7. The spouse of a high-level manager works in the Human Resources area, creating concern among some employees that a complaint over sexual harassment or other problems to Human Resources will not be kept confidential. While there is no complaint about this employee’s performance, we recommend that by April 1, 2012, the Company consider
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reassigning this employee to a position in a different area and that it adopt a policy that no employee in Human Resources be related to any other employee in the Company.
8. The BC work area is by far the weakest of the Company’s areas in terms of the prevalence of problem behavior and the risk of sexual harassment episodes occurring. While there has been improvement in the BC area, employee interviews suggest there is still a substantial amount of inappropriate and profane behavior, including sexually explicit commentary, joking, and touching especially outside in the Company parking area during break periods and on the BC floor. As stated previously, the remaining aspects of inappropriate conduct in the BC area pose the biggest threat of recurrence of the problems that led to the EEOCs lawsuit. We recently recommended that the Company consider monitoring the BC area and parking lots where breaks take place much the way employee telephone conversations are recorded. The use of audio and video surveillance would aid in uniformly enforcing and discouraging dress code violations, profanity, inappropriate comments and touching. The Company has agreed to explore these avenues with its security experts and report back to us by April 1, 2012.
9. A number of employees hold the view that the Company will not impose serious discipline on misconduct by big producers or those that are protected by long-standing personal loyalty on the part of the Company’s top management. We believe these perceptions have a considerable basis in reality. Human Resources must have the support of top management of the Company to hold all employees to the same standards of conduct regardless of performance or personal connections. Moreover, most other companies of similar size have implemented a hotline for anonymous complaints. We believe ISI is sorely in need of this type of reporting mechanism. After discussing this with the Executive Director, Human Resources, he
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informed us that he would be looking into the feasibility of a third-party 800 number. We expect him to report back to us by April 1, 2012.
10. A related problem to the above problem is that the Company has a history of terminating employees for inappropriate conduct and later rehiring them. This fact has fostered the perception that the rehiring was due to the ties of the employees in question to top-level managers and/or their status as big producers. We recommend that by April 1, 2012, the Company institute a policy that employees who are fired for misconduct related to sexual or sex-based harassment or retaliation will not be rehired under any circumstances.
11. The Company has maintained a dress code in principle but has not adequately limited sexually provocative dressing by some employees. This is not an easy problem to control, given increasingly tolerant mores with respect to revealing dress styles in the American workplace. But given the Company’s recent history, flamboyantly revealing dress, whether by women or men, is an invitation to trouble, and common sense measures to control it need to be taken. The Company has the right, and should exercise the right, to discourage excessively revealing clothing by both men and women. In response to our own observations and concerns raised during our interviews with both men and women that we shared with the Company, Human Resources has recently sent out a Dress Code Policy statement and has made it clear that (1) inappropriate dress will result in people being sent home and subject to docking of wages and/or disciplinary action and (2) all managers and supervisors will be held accountable for enforcing the Dress Code Policy across the board with potential disciplinary and/or financial ramifications for failure to enforce the Policy. Moreover, the Policy will be highlighted during orientation training for new hires. We recommend that a sign-off on the Dress Code Policy be included in the interviewing process by April 1, 2012. To make such efforts successful, and to
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avoid a cynical reaction among rank and file employees, we also recommend that the Company’s all managers, including top managers, make clear the importance of appropriate dress among employees in their own areas and document having done so to Human Resources by April 1, 2012.
12. Section 50(B)(3) of the Decree requires ISI to “link the handling of equal employment opportunity (‘EEO’) issues, including the prevention and eradication of sexual harassment, to the supervisor salary/bonus/promotion structure.” Supervisors need to set the example, and there should not be differing standards and/or differing levels of enforcement among different supervisors. In several of the 17 investigations discussed earlier in this report, the Company found that supervisors had violated the Company’s sexual harassment prevention policy and took action that included a suspension without pay or the loss of bonuses for a period. While such actions reflect that the Company is taking supervisor compliance seriously, we have recently had discussions with the Executive Director, Human Resources recommending that that the company also link supervisors’ failure to enforce company policies (e.g., violations of the dress code) with financial ramifications. He has committed to implementing such a practice and is developing such a plan for our review. We recommend that the Company complete this process, including a systematic plan to communicate and implement this objective of the Decree to supervisors and managers and provide for its implementation by April 1, 2012.
13. Employees widely perceive us as employees of the EEOC rather than courtappointed independent Monitors. This minor problem can be addressed by having future training (for example, new-hire orientation) clarify the role of the monitors.
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14. Employees have generally appreciated the reminder and clarifying memorandums that Human Resources has sent out. We have encouraged Human Resources to be proactive in underscoring its commitment to a respectful workplace by utilizing this communication tool on an ongoing and regular basis to highlight expectations about conduct and adherence to Company policies and to outline acceptable and unacceptable behavior. We expect an upcoming memorandum to address the use of profanity and/or slurs by April 1, 2012. Based on our recommendation, Human Resources has also committed to issuing to all employees quarterly reports beginning June 1, 2012 that summarize in general terms the number of sexual harassment and sex-based harassment or related retaliation complaints, the nature of the violations, and disciplinary outcomes. VII. CONCLUSION
Although there have been certain problems as explained above, the Company is presently in compliance with the Decree and making good progress toward implementing its specific responsibilities under it. We will continue to monitor the Company’s activities carefully and look forward to continuing the productive relationship that has been established with its Human Resources Department.

/s/ Nancy B. Kreiter Nancy B. Kreiter

February 23, 2012

/s/ George F. Galland, Jr. George F. Galland, Jr.

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APPENDIX Monitor Recommendations
A number of recommendations to the Company to effectuate the purposes of the Decree
were made throughout our work to date. These recommendations and the Company’s responses
have been thoroughly discussed in this First Year Report. Below is a list of the prospective
recommendations and guidance we have articulated in this Report.
IV. Processing of internal complaints of sexual harassment
We recommend that the Company be attentive to upholding its EEO Policy and Policy Against Sexual and Sex-Based Harassment relative to clients. (page 10)
V. Training on the Company’s sexual harassment policy
Our only recommendation at this time related to training is that next year the Policy Against Sexual and Sex-Based Harassment be the key training policy, with the general nonharassment Policy being covered secondarily.
VI.B. Impressions and conclusions as to the present situation and steps that need to be taken
We recommend that the Company invest the necessary resources and give substantial personnel powers to its Human Resources operation. (page 22)
We recommend that by April 1, 2012, the Company consider reassigning this employee to a position in a different area and that it adopt a policy that no employee in Human Resources be related to any other employee in the Company. (pages 22-23)
We recently recommended that the Company consider monitoring the BC area and parking lots where breaks take place much the way employee telephone conversations are recorded. The use of audio and video surveillance would aid in uniformly enforcing and discouraging dress code violations, profanity, inappropriate comments and touching. The Company has agreed to explore these avenues with its security experts and report back to us by April 1, 2012. (page 23)
We believe ISI is sorely in need of this type of reporting mechanism. After discussing this with the Executive Director, Human Resources, he informed us that he would be looking into the feasibility of a third-party 800 number. We expect him to report back to us by April 1, 2012. (pages 23-24)
We recommend that by April 1, 2012, the Company institute a policy that employees who are fired for misconduct related to sexual or sex-based harassment or retaliation will not be rehired under any circumstances. (page 24)

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We recommend that a sign-off on the Dress Code Policy be included in the interviewing process by April 1, 2012. (page 24)
We also recommend that the Company’s all managers, including top managers, make clear the importance of appropriate dress among employees in their own areas and document having done so to Human Resources by April 1, 2012. (page 25)
We have recently had discussions with the Executive Director, Human Resources recommending that that the company also link supervisors’ failure to enforce company policies (e.g., violations of the dress code) with financial ramifications. He has committed to implementing such a practice and is developing such a plan for our review. We recommend that the Company complete this process, including a systematic plan to communicate and implement this objective of the Decree to supervisors and managers and provide for its implementation by April 1, 2012. (page 25)
We have encouraged Human Resources to be proactive in underscoring its commitment to a respectful workplace by utilizing this communication tool on an ongoing and regular basis to highlight expectations about conduct and adherence to Company policies and to outline acceptable and unacceptable behavior. (page 26)
We expect an upcoming memorandum to address the use of profanity and/or slurs by April 1, 2012. (page 26)
Based on our recommendation, Human Resources has also committed to issuing to all employees quarterly reports beginning June 1, 2012 that summarize in general terms the number of sexual harassment and sex-based harassment or related retaliation complaints, the nature of the violations, and disciplinary outcomes. (page 26)
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CERTIFICATE OF SERVICE
Lisa Mecca Davis certifies that she caused a copy of the foregoing Report to be served upon all counsel of record, by this Court’s electronic-filing system, this 23rd day of February, 2012.
/s/ Lisa Mecca Davis Lisa Mecca Davis

 </s> Case: 1:01-cv-04427 Document #: 931 Filed: 03/04/13 Page 1 of 21 PageID #:17060

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
MARION TOWNSON, PHYLLIS LOPEZ, and RHONDA PORTER,
Plaintiffs-Intervenors,
v.
INTERNATIONAL PROFIT ASSOCIATES, INC.,
Defendant.

) ) ) ) ) ) ) No. 01 C 4427 ) ) The Honorable Joan B. Gottschall ) ) Magistrate Judge Morton Denlow ) ) ) ) ) ) )

REPORT TO THE PARTIES AND THE COURT PURSUANT TO PARAGRAPH 40 OF THE CONSENT DECREE

I. INTRODUCTION

We were appointed Co-Monitors pursuant to the Decree entered by the United States
District Court for the Northern District of Illinois on March 2, 2011. Paragraphs 39 and 40 of the
Decree provided:
39. Within one (1) year after their appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices that are related to the Statement of Intolerance of Sexual Harassment, and shall submit a written report (which shall be a public report) to EEOC, IPA1 and the Court setting forth the following information:

1 International Profit Associates (IPA) changed its name to International Services, Inc. (“ISI”) after the Decree was entered, and will be called “ISI” in this Report.

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A. an assessment of whether IPA maintains or has successfully implemented each specific policy and practice ordered in paragraph 50 below;
B. for each policy, procedure or practice outlined in paragraph 50 below that has not been maintained or successfully implemented, a statement discussing the reason for IPA’s failure to maintain or implement such policy, procedure or practice;
C. an evaluation of the impact of any specific changes made pursuant to this Decree;
D. an assessment of the effectiveness of IPA’s policies and practices for achievement of IPA’s Statement of Intolerance of Sexual Harassment;
E. recommendations for any changes to existing practices or programs that the Decree Monitors deem necessary or appropriate for achieving IPA’s statement of Intolerance of Sexual Harassment and the terms of this Decree; and
F. timetables for implementation and completion of compliance with any of their recommendations, subject to the terms of this Decree.
40. Thereafter, for the duration of the Decree, the Decree Monitors will be responsible for continuing the review and evaluation of all ongoing employment policies and practices of the Company relating to IPA’s Statement of Intolerance of Sexual Harassment and the terms of this Decree, as well as monitoring the impact and effectiveness of their recommendations. The Decree Monitors will continue during this time to recommend revisions or modifications to ongoing employment policies and practices in order to achieve the Statement of Intolerance of Sexual Harassment and the terms of this Decree. At the end of each successive year, the Decree Monitors shall submit an annual public report to EEOC, IPA and the Court setting forth the information described in paragraph 39 herein.
We submitted our report (the “Year One Report”) pursuant to paragraph 39 on February
23, 2012. The present report is the report required by paragraph 40 at the end of our second year
of work.
We have continued our comprehensive activities on this assignment during the past year.
We have had extensive telephone and email contact with ISI’s Executive Director of Human
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Resources, Jon Andes, who is the principal ISI official charged with responsibility for dealing with us and assuring compliance with the Decree, and we have met with other top Company officials. We have continued our extensive involvement in the training activities we will describe herein. We have been involved in review of ISI’s processing of the eight internal complaints of sexual or sex-based harassment or retaliation that have been filed since the last Report, and have occasionally had dealings with complainants who have contacted us directly. With the assistance of a third interviewer, we conducted confidential interviews of 85 of the 320 employees at the Buffalo Grove headquarters during December 17, 18, and 19, 2012 and have tabulated and analyzed the results.
Most of our dealings with the Company continue to be conducted through the Executive Director, Human Resources. Our Year One Report discussed the excellent work that he had done to make the Decree work as intended, and that work has continued throughout the past year. He has been open in his communications with us, has dealt with all internal complaints of sexual or sex-based harassment with a sure hand, has been forceful in communicating with both managerial and non-supervisory employees on areas in which improvement is needed to promote the objectives of the Decree, and has maintained the backing of the Company’s top management while taking corrective measures, which occasionally involved long-time and highly placed Company personnel.
II. COMPANY RESPONSES TO MONITORS’ RECOMMENDATIONS IN ONEYEAR REPORT
The Year One Report made a series of recommendations, which under the Decree required a formal response from the Company. All were responded to in writing as required by
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the Decree and all have been acted upon, sometimes by issuing supplemental communications to employees or managers strengthening existing policies or imposing new requirements.
Recommendation: We recommend that the Company be attentive to upholding its EEO policy and Policy Against Sexual and Sex-Based Harassment relative to clients. This recommendation resulted from information we received in training and elsewhere that the Company occasionally experienced inappropriate demands or behavior from clients or prospective clients. We also learned that the Company gets occasional requests from clients to send only certain types of consultants based on gender, race and/or sexual orientation. While this latter subject is not regulated by the Decree, we reported this fact to the Executive Director, Human Resources. In the course of this year’s training, both John and Tyler Burgess addressed participants and strongly emphasized the importance of applying the Company’s anti-harassment and nondiscrimination policies to clients even if it results in loss of business opportunities. Additionally, based on our recommendation after the training sessions delivered during the Company’s annual meeting held in January 2013, a memorandum from John Burgess to employees regarding how to respond to these inappropriate requests will be drafted and sent before the end of the current quarter. Recommendation: [N]ext year the Policy Against Sexual and Sex-Based Harassment [should] be the key training policy, with the general non-harassment Policy being covered secondarily. This recommendation was aimed at keeping the Decree-mandated training as specifically focused as possible on the particular problems that had led to the Decree. The Company immediately agreed to “adjust our training program accordingly.” This recommendation was implemented smoothly during the training sessions delivered onsite to Buffalo Grove employees. One of the monitors worked with the three trainers at the training done at the Company’s annual meeting for field employees to assure that this recommendation was carried out consistently.
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Recommendation: We recommend that the Company invest the necessary resources and give substantial personnel powers to its Human Resources operation. This recommendation resulted from concerns that the Executive Director, Human Resources was overworked as he “faces the need to develop his department, respond to crises, and institutionalize procedures with minimal professional and support staff.” In response to the recommendation, the Company agreed to hire an additional Human Resources Generalist. After various personnel transactions during the year, the Department is now operating with four persons in addition to Jon Andes rather than three. Because of budget constraints, all vacant positions were filled from within. With respect to the “substantial personnel powers” aspect of the recommendation, effective April 1, 2012, the Company gave the Executive Director of Human Resources final hiring authority on slates of candidates presented by the Director of Recruiting. This was a major step, particularly since it brings the Company into line with human resources practice at many major professional services firms and should be helpful in improving the average qualification of new hires, particularly given the very high level of turnover that is experienced by ISI in its “Business Consultant” positions. Recommendation: We recommend that by April 1, 2012, the Company consider reassigning [the Benefits Manager] to a position in a different area and that it adopt a policy that no employee in Human Resources be related to any other employee in the Company. This recommendation dealt with the fact that the Benefits Manager was the spouse of a high-level manager at ISI and worked in the Human Resources work area. While there were no complaints about this employee’s performance, some employees raised concerns that complaints over sexual harassment or other problems might not be kept confidential. The Company reassigned this manager to report to a non-HR manager, although it did not relocate her office. A
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memorandum was sent on April 9, 2012 to all employees announcing the reassignment of supervisory responsibility over the Benefits Manager and that she would no longer have any Human Resources responsibilities. After this change was implemented, we have heard no further concerns about confidentiality expressed on this score.
Recommendation: We recently recommended that the Company consider monitoring the BC Area [the area where the “Business Consultants,” who do the initial telemarketing of ISI’s services, work] and parking lots where breaks take place much the way employee telephone conversations are recorded. The use of audio and video surveillance would aid in uniformly enforcing and discouraging dress code violations, profanity, inappropriate comments and touching. The Company has agreed to explore these avenues with its security experts and report back to us by April 1, 2012. This recommendation arose out of our concern that to the extent behavioral problems of concern to the Decree remained at Buffalo Grove, they were clearly concentrated in the BC work area and to a lesser extent in the parking areas where some BC staff congregated on breaks. In response, ISI has not adopted audio or video monitoring, but proposed to have its long-time security contractor patrol the buildings and the parking lot during break and lunch times with a particular view to observing and reporting violations of the relevant policies. As will be discussed below, we are not entirely satisfied that this has been effective. Recommendation: We believe ISI is sorely in need of [an anonymous 800 number for employees to call with complaints of violating the relevant policies]. Effective April 15, 2012, the Company installed a telephone with an answering machine and an “800 number” in the office of the Executive Director, Human Resources. The Executive Director posted a memorandum to employees explaining this “hotline” and the option of the caller to remain anonymous, and sent the memorandum to all individual employees. Nonetheless, our interviews in December 2012 showed that only about two thirds of employees know of the hotline’s existence, and the Executive Director reports that no message has ever been left on it. Of those who knew about the hotline, a substantial proportion, over 40%, did not
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know that users have the option to remain anonymous. On February 15, 2013 a follow-up memo, which we reviewed, was sent to remind employees about the hotline and the option of anonymity. It has also been posted in four conspicuous areas. As will be discussed in Section V, however, the lack of use of the hotline can be viewed as evidence that the Company’s efforts under the Decree are succeeding.
Recommendation: We recommend that by April 1, 2012, the Company institute a policy that employees who are fired for misconduct related to sexual or sex-based harassment or retaliation will not be rehired under any circumstances. This recommendation resulted from several instances of rehiring employees who in a past period of employment had been either terminated or had been the subject of credible allegations of sexual harassment. The Company implemented this recommendation with a memo of March 2012 from the Executive Director, Human Resources to all Directors, Managers, and Hiring Executives, telling them: “It has come to our attention that we have rehired several employees who either left under questionable circumstances or had discipline issues before their initial separation. It is imperative that we are very careful about who we hire, especially if a former employee left under less than positive circumstances.” He then set forth, for the first time, clear guidelines on the Company’s Rehire Policy. Among other provisions, the new policy provides: “Former employees who had a less than satisfactory work record or who were terminated for any type of involvement with sexual harassment or sex-based discrimination are excluded from rehire consideration. Under no circumstances will former employees be rehired without the review of their case by the Executive Director, Human Resources.” Recommendation: We recommend that a sign-off on the Dress Code Policy be included in the interviewing process by April 1, 2012. This was one of two recommendations that arose out of a discussion in the One Year Report of the Company’s efforts to maintain a professional level of dress among employees. The
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Company implemented this recommendation, preparing an acknowledgment form that all interviewees and new hires sign, stating: “Should you be hired, you will be expected to follow the policy and report to work in professional clothing. The policy attached has outlined what is and isn’t acceptable. Managers will be ensuring that there is 100% compliance, and if you come to work one day wearing something inappropriate or in violation of the Dress Code Policy, you may be sent home, without pay, written up, or in the case of multiple violations, severe disciplinary action, up to and including termination, may take place.”
Recommendation: “We also recommend that the Company’s managers, including top managers, make clear the importance of appropriate dress among employees in their own areas and document having done so.” In response to this recommendation, the Company responded that it would have each manager meet with his or her employees and hand out the Dress Code policy, explain it, and explain the consequences of violation. The Company also committed to meet with managers by April 15, 2012 to explain compliance with the Code. To ensure that managers would take this seriously, the Company established a bonus pool for managers to share, with the following repercussions of Dress Code violations: (1) if there is one infraction among employees under his or her supervision, the manager loses 25% of pool share; (2) if there are two infractions, the manager loses 50% of pool share; (3) if there are three infractions, the manager loses 100% of pool share. Managers were made to sign off on a compliance memorandum. Managers were required to police their area and contact Human Resources for assistance with compliance. Human Resources would have the final say regarding the appropriateness of particular instances of dress. Violations of the Dress Code and manager infractions would be tracked and sent to the Monitors on a quarterly basis. The Company has followed through on these promises. A Corrected Dress Code Policy was issued April 9, 2012. The Company drafted and had its managers sign an Affidavit of
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Compliance with Dress Code Policy Training and Supervision which contained, among other provisions, an acknowledgement that “I understand that it is my responsibility to enforce this policy and impose appropriate disciplinary action for any infractions of this policy,” and “I understand that my participation in the bonus program is affected by my compliance with these guidelines for enforcing and ensuring all employees are compliant with the Policy. With the bonus, one reported infraction will cause a 25% reduction in your bonus, two reported infractions will cause a 50% reduction in your bonus, and three or more infractions will cause you to be ineligible for this bonus program.”
Human Resources has been tracking Dress Code violations. Employees generally are warned on the first violation unless it is flagrant, whereupon they are sent home. Human Resources reported that in the third quarter, it sent home eleven employees, all in the Business Consultant (BC) area. In that quarter, all four zone managers and all four assistant zone managers lost their bonus, due to Dress Code infractions. In the fourth quarter all four zone managers and all four assistant zone managers lost their bonus. A more formal memorandum is presently in the process of preparation as to the details of how the loss-of-bonus program is applied to managers.
In short, it is clear that the Company has followed through on this issue. However, some managers have not carried out their enforcement responsibilities and have not been held sufficiently accountable. We will discuss the lingering problems that still need to be addressed with respect to the Dress Code in Section V.
Recommendation: We have encouraged Human Resources to be proactive in underscoring its commitment to a respectful workplace by utilizing [periodic memos to employees] on an ongoing and regular basis to highlight expectations about conduct and adherence to Company policies and to outline acceptable and unacceptable behavior.... We expect an upcoming memorandum to address the use of profanity and/or slurs by April 1, 2012.
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These recommendations were prompted by (1) the fact that turnover in some areas of the Company (especially the BC area) is very high, meaning that there is a need for frequent reminder memoranda and posting of important matters, and (2) information received in employee interviews about the use of foul language and profanity, especially by certain supervisors and managers in the BC area.
As has already been discussed, Human Resources has been active throughout the year in sending memoranda to employees on various subjects. As to profanity and slurs in the workplace, the Company issued a strongly worded reminder memorandum on March 2, 2012. We will comment in Section V about remaining issues in this category.
Recommendation: Based on our recommendations, Human Resources has also committed to issuing to all employees quarterly reports beginning June 1, 2012 that summarize in general terms the number of sexual harassment and sex-based harassment or related retaliation complaints, the nature of the violations, and disciplinary outcomes. Human Resources issued such quarterly reports on July 6, 2012, October 1, 2012 and January 10, 2013.
III. PROCESSING OF INTERNAL COMPLAINTS OF SEXUAL HARASSMENT
The Decree requires, and the ISI sexual harassment prevention policy specifies, an internal complaint procedure and also advises persons they may file charges of discrimination with government agencies, including the EEOC.
During the second year of the Decree, one charge was filed with a government agency alleging sexual or sex-based harassment.2 In the year since our Year One Report, there have
2 The employee in question filed the charge with the Illinois Department of Human Rights last month. The charge alleged that she had been discriminated against on the basis of her race, her sex, and her age. It focused on alleged remarks by a supervisor that the employee found racially offensive, but she did mention a single remark by the supervisor using a derogatory reference to women. She also made an internal complaint to the Company along similar lines.
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been eight complaints of sexual or sex-based harassment that were filed pursuant to the Company’s internal procedure and generated investigations by Human Resources. This is a substantial decrease from the seventeen complaints that were filed during the first year of the Decree. The Executive Director, Human Resources handled all but one of these investigations; the remaining complaint was investigated by one of his staff. With one exception, pursuant to the Decree and arrangements we made with him, he provided us with his notes of interviews, and then provided us, in advance of carrying out any decision, with his report discussing his conclusions and proposed disposition. (The exception was the recent complaint noted above which appeared to focus on racial rather than sex discrimination and therefore, understandably, was not treated by the Executive Director as subject to the Decree’s reporting requirements.) Through this process, we have had a detailed view of the investigative techniques and thought processes involved in all investigations.
In general, we have continued our previous approach of respecting the final judgment as to the course of action taken once we were consulted and had the opportunity to have input with regard to further investigation or discussion that we felt was necessary. This year we rarely found such discussion necessary, a fact that reflects the confidence and skill Mr. Andes has developed in handling these complaints and disposing of them in a sensible and fair manner.
As a result of the eight investigations since our Year One Report, one employee was terminated, and the relationship between the Company and an independent contractor who had provided services to the Company for many years was severed. The remaining six cases were less serious and resulted in warnings to employees and sometimes in the reassignment of employees to assure that future problems would not recur.
In our interviews in December 2012, fewer than 10% of employees interviewed had had any involvement with Human Resources in connection with an investigation of sexual
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harassment or related retaliation. Whether or not they had had such involvement in a particular investigation, employees in interviews, with rare exceptions, expressed a notably high level of confidence in the HR Executive Director’s performance on matters related to the Decree.
In our Year One Report we noted that “there were instances where we had the impression that had the employee in question been a less prominent producer, the discipline proposed initially might have been more drastic.” We did not observe any such pattern this year as to those who were investigated. In Section V below we discuss remaining perceptions of favoritism toward certain “large producers.”
Upon resolution of an investigation, complainants are given a written explanation of their right to appeal the disposition of the complaint to the Monitors. (We found that some employees think that the Monitors are the Equal Employment Opportunity Commission, so we had the Company revise the Monitor Appeal Form to make clear that we are not the EEOC.) To date, none of the complainants in the eight complaints has exercised her right under the Decree to appeal to the Monitors from the Company’s disposition of her complaint, although one of them (as described above) subsequently filed a charge of discrimination with the Illinois Department of Human Rights, where the charge is pending.
IV. TRAINING ON THE COMPANY’S SEXUAL HARASSMENT POLICY
Our Year One Report discussed the extensive first round of training the Company carried out pursuant to Paragraph 50(C)(5) of the Decree. Paragraph 50(C)(6) of the Decree provides for mandatory annual refresher sexual harassment training to all employees, including all officers, managers, and supervisors (including senior managers), and mandatory sexual harassment training to all new employees during employee orientation.
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The Company and the Monitors were pleased with the work done by Seyfarth Shaw At Work (SSAW) during the first year and have continued to use SSAW for the refresher training with good results. Most of the Monitors’ work with respect to training was performed by Nancy Kreiter. She was involved in the planning for this training, and participated on July 26, 2012 in a “dry run” at Buffalo Grove. In September 2012, managers were given a 90-minute live training (four such sessions were held); Nancy Kreiter observed three of them. In September and October, non-managerial employees were given an hour-long live refresher training (twelve such sessions were held); Ms. Kreiter attended five of these. At the Company’s annual meeting in Schaumburg on January 19, 2013, three trainers delivered three sessions apiece for the Company’s field employees not based in Buffalo Grove; Ms. Kreiter attended three of these sessions and observed all three of the trainers. At the annual meeting there was also a training session for field managers and Buffalo Grove-based managers who missed the onsite training delivered in September 2012. Ms. Kreiter attended that session as well.
SSAW also prepared nine “Webinars” (web-based training seminars) to provide refresher training for field-based employees. Six sessions were held in February 2013 and three were given on March 2, 2013. Ms. Kreiter observed these as well and found they went very well. They were well designed in terms of content, timing, and interactive participation. She offered certain suggestions that the Company and SSAW agreed with and adopted in the course of delivering the sessions. Unfortunately, the Webinars were marred by technical glitches that did not occur during the Year One Training Webinars. Too many people had difficulties logging in online and had only audio access; participants were unable to see the polling results; and the Company was not able to solicit evaluative feedback about the training. It is our understanding that the Company utilized in-house IT resources this year rather than specialized software provided last year by an outside supplier. We recommend that next year the Company make
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certain to have the necessary technological support to prevent the flaws that were encountered this year.
In the Year One Training, there had been several troubling episodes with Director-level executives who attended the training and treated them flippantly and disrespectfully. Mr. Andes and John and Tyler Burgess made their displeasure over this conduct known to these individuals at the time. There was minimal repetition of such conduct this year. However, Mr. Andes still had to reprimand three Directors after the Buffalo Grove training sessions. To prevent any recurrence in subsequent training, Mr. Andes delivered warnings about the importance of the training to Directors before the recent annual meeting. Our impression is also that nonmanagerial employees this year took the training more seriously than they did last year, and were more respectful and engaged. Some of this can be attributed to their increased familiarity with the subject. SSAW used workbooks in these training sessions and these clearly helped keep trainees focused.
On the negative side, the hour devoted to non-managerial refresher training proved problematic. SSAW specializes in doing interactive training, and limiting the refresher course to 60 minutes forced it into a format more like a lecture. We recommend that the refresher training required by the Decree during the coming 12 months be 90 minutes in length.
The aspect of the training that provoked the most resistance concerned the situation in which clients object to having minority, female or gay consultants, or who specifically request flirtatious and/or “hot” females. In such a situation the Company realistically has only two options: give in to the demand or write off the business opportunity. The latter option does not sit well with Directors and field employees who are compensated only if sales take place. However, as described above, at the training sessions they attended, John Burgess and Tyler Burgess emphatically made their view clear that the Company cannot honor requests like this
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from clients even if the result is to lose the business. We believe that the planned memorandum from John Burgess regarding how to respond to these inappropriate requests as described above will again underscore this point.
Our employee interviews from December 2012 found the great majority of employees continue to view the training as being useful and as having a positive impact on the workplace. Female employees were particularly likely to comment that the refresher training should continue.
V. ASSESSMENT OF THE CURRENT SITUATION WITH RESPECT TO CONTROL OF SEXUAL HARASSMENT
All objective evidence suggests that conduct traditionally viewed as sexual harassment within the Company is low. The current challenge to the Company is to better control situations that do not involve overt sexual harassment but which violate the Company’s view of acceptable workplace conduct and that contribute to views of employees, especially women employees, that problems still exist.
As discussed above, the number of complaints of sexual harassment or related retaliation declined sharply during the second year – from 17 in Year One to 8 in Year Two. Our interviewees during the December 2012 interviews, during which we spoke to a considerable percentage of the Company’s current Buffalo Grove workforce, reported almost no recent sexual harassment to themselves. 91% (49 of 54) female interviewees said they had experienced no sexual harassment; of the five who said they had, only three reported that the harassment had happened since the Decree was entered; and of those three, two reported that the harassment consisted of inappropriate comments that stopped when they protested or complained. Nonetheless, a noticeable percentage of female interviewees (25%) thought that sexual
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harassment was still a problem in the Company today at least to some degree. 9% of the female interviewees (5 out of 49) and 3% of males (1 out of 30) reported they had seen someone else being sexually harassed. Only two of these said they chose to report what they had seen.
Awareness of and appreciation of the Company’s efforts to control harassment were high among our interviewees. 98% of the interviewees had been through the sexual harassment prevention training and virtually the same percentage found that it was useful, or at least “somewhat” useful. Most of the interviewees, including 87% of female interviewees, felt the training had had at least some positive impact on the workplace. Most interviewees, including 98% of the women, felt their supervisor was effective at least to some degree in keeping the workplace environment free from harassment. Most of them likewise rated their supervisors’ professionalism to be acceptable or better, and 40% of them reported that the level of supervisor professionalism had improved since the entry of the Decree (another 50% said it had stayed the same).
Our interviews indicated four areas that are still potential sources of trouble for the company. The first involves dress code violations in the BC area. Human Resources has devoted substantial attention to the dress code over the past year, and progress is apparent, but inconsistent enforcement by BC supervisors who tolerate and perhaps encourage revealing dress by women under their supervision still causes commentary and resentment about inconsistent enforcement and favoritism. We have informally discussed in general terms what we have learned on this subject from our interviews (without revealing any particular source of the information) with the Executive Director of Human Resources, who agrees that enforcement of the policy needs to be tightened and that the dress code bonus problem is not working as it was intended to. John and Tyler Burgess also agree that enforcement needs to be strengthened and that a penalty system for non-enforcement, including loss of pay, will be devised. We
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recommend that the Company provide us, within thirty days, with a formal plan for increasing the monitoring of compliance with the Dress Code in the BC area, for increasing the level of discipline for first-time and multiple violations, and for holding all mangers accountable.
The second problem that continued to be reported in our interviews is the use of foul language. A sizeable minority of our interviewees continues to view the Company as a profane workplace environment, although most say that this problem has been decreasing. This is not strictly a sexual harassment or related retaliation problem, but many employees perceive it as such. The most serious aspect of it is that there are still episodes of managers losing their tempers and cursing out employees on the BC floor in full hearing of their coworkers. It is true that as to this problem, the Company has come a long way from previous years, when such behavior on the BC floor by all accounts was routine and widespread. But the progress that has been made in this respect, and the increased expectations that progress has instilled in employees, only makes such outbursts as continue to occur more damaging, particularly when nothing is done to the managers involved.
As in the past, this problem is tied to the nature of the high-pressure work the BCs do. Telemarketing is stressful and high-pressured and a few of the managers whose behavior is most prone to outbursts and aggression are also managers whose areas post the best results. But the Company cannot have it both ways. It has spent large amounts of time and money training employees to behave professionally and emphasizing that those who do not can expect discipline. The persistence of managers in the BC area who behave poorly with impunity undermines these efforts and makes employees mock them. Unless this problem is eliminated, it is a serious concern for the future once the Decree expires.
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The Executive Director for Human Resources is well aware of this problem and has been discussing it with the top management of the Company. We commend his efforts, but they do not change the basic reality: the Company to date has been reluctant to take severe measures against a few veteran managers who are deemed to be high producers and whose relationship with the Company’s top management goes back many years. A Company that has made as much progress as this one should not find this lingering problem difficult to solve. These episodes are not secret and do not take elaborate monitoring measures to discover. We see no reason why any profane or obscene outburst of this nature on the BC floor by a manager against his supervisees should not be immediately reported and immediately dealt with severely. Nor do we see any reason for not holding the Director or Co-Director of the BC area immediately responsible for continued behavior like this by managers on the floor if it continues. We recommend that within 30 days the Company provide us with a formal plan to address this issue, including proposed measures as to what actions will be taken if it persists.
A third area where our interviews reported room for improvement is the performance of security guards with respect to the Company’s policy. The Company contracts with an outside service for this function and we have had reports of behavior by security guards, particularly in the parking lot on breaks, engaging in inappropriate behavior which would not be tolerated from Company employees. We have discussed this issue with the HR Executive Director, and he and John Burgess have dealt forcefully with the owners of the security guard firm in question. In turn the owners have told each of their ISI-assigned employees that any incident of inappropriate language or behavior would call for immediate dismissal, no questions asked. Jon Andes also intends to personally train the security guards assigned to ISI.
Finally, our interviews elicited a few complaints that recently hired BCs (the area with the largest turnover) are not taking the training as seriously as veteran employees are. The Company
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has committed to strengthening the orientation for BCs who are hired so that they understand the Policy Against Sexual and Sex-Based Harassment and the ramifications of non-compliance. Mr. Andes will be present to observe, evaluate, and aid in the orientation training conducted by all four HR representatives.

VI. CONCLUSION

Despite the above concerns, the big picture should be kept in mind, which is that the Company has made significant progress since the Decree in improving its workplace environment. Virtually everyone concurs that the environment continues to improve. Complaints of violations continue to decrease, and investigations into such complaints are filed are well conducted and lead to serious results when the complaints are found meritorious. The average level of responsibility and professionalism of managers and supervisors has vastly increased. Employees continue to tell us that they would report violations if they saw them with little or no fear of retaliation and that management would take their complaints seriously. They continue to express confidence in the Human Resources Department and its Director, and we share that confidence. When problems persist, they are addressed rather than ignored.
In short, overall, the Decree is working as it was intended to work. We will continue to monitor the Company’s activities carefully during the coming final year of the Decree’s existence.

/s/ Nancy B. Kreiter Nancy B. Kreiter

Date: March 4, 2013

/s/ George F. Galland, Jr. George F. Galland, Jr.
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APPENDIX A
Formal recommendations in the Year Two Report
1. We recommend that next year the Company make certain to have the necessary technological support to prevent the flaws that were encountered this year [in the “Webinars” that were used to satisfy certain training obligations of the Decree]. (See pp. 13-14.)
2. We recommend that the refresher training required by the Decree during the coming 12 months be 90 minutes in length. (See p. 14.)
3. We recommend that the Company provide us, within thirty days, with a formal plan for increasing the monitoring of compliance with the Dress Code in the BC area, for increasing the level of discipline for first-time and multiple violations, and for holding all mangers accountable. (See pp. 16-17.)
4. We recommend that within 30 days the Company provide us with a formal plan to address [the issue of taking appropriate and consistent action in response to inappropriate language and public conduct by supervisors in the Business Consultant area], including proposed measures as to what actions will be taken if it persists. (See p. 18.)

Case: 1:01-cv-04427 Document #: 931 Filed: 03/04/13 Page 21 of 21 PageID #:17080
CERTIFICATE OF SERVICE
Lisa Mecca Davis certifies that she caused a copy of the foregoing Report to be served upon all counsel of record, by this Court’s electronic-filing system, this fourth day of March, 2013.
/s/ Lisa Mecca Davis Lisa Mecca Davis

 </s> Case: 1:01-cv-04427 Document #: 935 Filed: 03/10/14 Page 1 of 17 PageID #:17090

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
MARION TOWNSON, PHYLLIS LOPEZ, and RHONDA PORTER,
Plaintiffs-Intervenors,
v.
INTERNATIONAL PROFIT ASSOCIATES, INC.,
Defendant.

) ) ) ) ) ) ) No. 01 C 4427 ) ) The Honorable Joan B. Gottschall ) ) ) ) ) ) ) ) )

FINAL REPORT TO THE PARTIES AND THE COURT PURSUANT TO PARAGRAPH 40 OF THE CONSENT DECREE

I. INTRODUCTION
We were appointed Co-Monitors pursuant to the Decree entered by the United States
District Court for the Northern District of Illinois on March 2, 2011. Paragraphs 39 and 40 of the
Decree provided:
39. Within one (1) year after their appointment, the Decree Monitors shall complete their own review and evaluation of all current employment policies and practices that are related to the Statement of Intolerance of Sexual Harassment, and shall submit a written report (which shall be a public report) to EEOC, IPA1 and the Court setting forth the following information:

1 International Profit Associates (IPA) changed its name to International Services, Inc. (“ISI”) after the Decree was entered, and will be called “ISI” in this Report.

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A. an assessment of whether IPA maintains or has successfully implemented each specific policy and practice ordered in paragraph 50 below;
B. for each policy, procedure or practice outlined in paragraph 50 below that has not been maintained or successfully implemented, a statement discussing the reason for IPA’s failure to maintain or implement such policy, procedure or practice;
C. an evaluation of the impact of any specific changes made pursuant to this Decree;
D. an assessment of the effectiveness of IPA’s policies and practices for achievement of IPA’s Statement of Intolerance of Sexual Harassment;
E. recommendations for any changes to existing practices or programs that the Decree Monitors deem necessary or appropriate for achieving IPA’s statement of Intolerance of Sexual Harassment and the terms of this Decree; and
F. timetables for implementation and completion of compliance with any of their recommendations, subject to the terms of this Decree.
40. Thereafter, for the duration of the Decree, the Decree Monitors will be responsible for continuing the review and evaluation of all ongoing employment policies and practices of the Company relating to IPA’s Statement of Intolerance of Sexual Harassment and the terms of this Decree, as well as monitoring the impact and effectiveness of their recommendations. The Decree Monitors will continue during this time to recommend revisions or modifications to ongoing employment policies and practices in order to achieve the Statement of Intolerance of Sexual Harassment and the terms of this Decree. At the end of each successive year, the Decree Monitors shall submit an annual public report to EEOC, IPA and the Court setting forth the information described in paragraph 39 herein.
We submitted our second report (the “Two Year Report”) pursuant to paragraph 40 on
March 4, 2013. The present report is the final report required by paragraph 40 at the end of our
third year of work.
We have continued our comprehensive activities on this assignment during the past year.
We have had extensive telephone and email contact with ISI’s Executive Director of Human
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Resources, Jon Andes, who is the principal ISI official charged with responsibility for dealing with us and assuring compliance with the Decree, and we have met with other top Company officials. We have continued our extensive involvement in the training activities we will describe herein. We have been involved in review of ISI’s processing of the eight internal complaints (and one external complaint) of sexual or sex-based harassment or retaliation that have been filed since the last Report. With the assistance of a third interviewer, we conducted confidential interviews of 80 of the 408 employees at the Buffalo Grove headquarters during December 16, 17, and 18, 2013 and have tabulated and analyzed the results.
Each of our two previous reports has had occasion to note the work of the Executive Director, Human Resources, not only in making this Decree work as intended but in making steady progress in professionalizing the Human Resources function at ISI. By all accounts, including the unanimous views (as expressed to us in interviews) of long-time employees, the Company today is a different and far better workplace than it was when he was hired three years ago. The credit for making this Decree work as intended is largely due to his efforts and to his superiors who supported him along the way.
II. COMPANY RESPONSES TO MONITORS’ RECOMMENDATIONS IN TWOYEAR REPORT The Year Two Report made a series of recommendations, which under the Decree
required a formal response from the Company. All were responded to in writing as required by the Decree and all have been acted upon, sometimes by issuing supplemental communications to employees or managers strengthening existing policies or imposing new requirements.
Recommendation: We recommend that next year the Company make certain to have the necessary technological support to prevent the flaws that were encountered this year [in the “Webinars” that were used to satisfy certain training obligations of the Decree]. (See Year Two Report, pp. 13-14.) The Company acknowledged the technical difficulties caused during the Year Two
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webinars, which had been caused by the use of an in-house system. It solved these problems by reverting to the original software supplied by its outside vendor for the webinars during the first year.
Recommendation: We recommend that the refresher training required by the Decree during the coming 12 months be 90 minutes in length. (See Year Two Report, p. 14.) The Company accepted and implemented this recommendation. We discuss the refresher training in detail later in this report. Recommendation: We recommend that the Company provide us, within thirty days, with a formal plan for increasing the monitoring of compliance with the Dress Code in the BC area, for increasing the level of discipline for first-time and multiple violations, and for holding all managers accountable. (See Year Two Report, pp. 16-17.) Mr. Andes issued a memorandum on April 15, 2013 to all BC Department Employees stressing the importance of the Dress Code Policy and specifying the levels of discipline that would be employed for first violations, second violations, and continuing violations. The memorandum also tried a “carrot and stick” approach by offering edible treats to zones that avoided dress code violations in their work area during a given quarter as well as modest bonuses to the zone managers. Mr. Andes also met with supervisors and informed them that the owner of the Company, John Burgess, had authorized him to start assessing monetary fines on all zone managers and assistant zone managers who failed to insure that their supervisees were dressed appropriately. Thereafter, Mr. Andes reported on a quarterly basis to the monitors on compliance with the Dress Code. The initial response under the Dress Code Policy is a verbal warning with second violations within the same calendar year resulting in being sent home. This is an effective tool, since BCs cannot make commissions if they are not at work, and as the year progressed, this measure was increasingly used. The number of warnings issued for first violations increased during the second quarter of 2013 and decreased only slightly in the third quarter. The number
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of people sent home increased steadily through the third quarter. However, in the final quarter of 2013, only two first warnings had to be given for a violation and just three employees had to be sent home for arriving inappropriately dressed. One particular zone and zone management team were rewarded during three consecutive quarters for no violations. No other zone ever achieved a violation-free quarter. Notwithstanding progress, we still heard complaints in interviews about inconsistent enforcement of the Dress Code, as discussed below.
Recommendation: We recommend that within 30 days the Company provide us with a formal plan to address [the issue of taking appropriate and consistent action in response to inappropriate language and public conduct by supervisors in the Business Consultant area], including proposed measures as to what actions will be taken if it persists. (See Year Two Report, p. 18.) The Company accepted this recommendation. The same memorandum of April 15, 2013 discussed above that dealt with the Dress Code also dealt with “Curbing Offensive Language and Conduct: Policy and Procedures.” Addressed to all BC employees, it reported the fact that there had been numerous complaints from many sources, including employees, feedback from the monitors, and the monitor reports, about offensive language and conduct in the BC department, and put both nonmanagerial and managerial employees on notice that there would be disciplinary action taken in response to any incident reported to Human Resources that proved valid on investigation. We will discuss the remaining problems in this area later in this report.
III. PROCESSING OF INTERNAL COMPLAINTS OF SEXUAL HARASSMENT The Decree requires, and the ISI sexual harassment prevention policy specifies, an
internal complaint procedure and also advises persons they may file charges of discrimination with government agencies, including the EEOC.
During the third year of the Decree, eight complaints of sexual or sex-based harassment were filed pursuant to the Company’s internal procedure and generated investigations by Human
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Resources.2 Thus, the number of internal complaints was approximately the same in the last year as it was in 2012. The Executive Director, Human Resources handled all these investigations. As in the past, he provided us with his notes of interviews and his report discussing his conclusions and final disposition. His investigatory technique has been acceptable; we have occasionally made suggestions for following up particular areas. We have continued our previous approach of respecting the final judgment as to the course of action taken once we were consulted and had the opportunity to have input with regard to further investigation or discussion that we felt was necessary.
Significant discipline has resulted from these eight internal investigations, including three terminations, two suspensions, one demotion from the management track, one “last chance agreement,” numerous verbal or written warnings, and occasional counseling of employees who were not judged to merit discipline but who could have handled the situation better. To date, none of the complainants in the eight complaints has exercised her right under the Decree to appeal to the Monitors from the Company’s disposition of her complaint.
As in the previous year, fewer than 10% of employees interviewed had had any involvement with Human Resources in connection with an investigation of sexual harassment or related retaliation. Still, Human Resources enjoys a remarkable degree of confidence among Buffalo Grove employees. In our interviews, employees at all levels and from all parts of the Buffalo Grove headquarters praised Mr. Andes’ performance and gave him credit for drastic improvements in the workplace environment. Such popularity of a human resources official is
2 In addition, one EEOC charge alleging sex discrimination was filed by a woman who alleged she was removed from a consulting assignment because of being female and then was assigned less work thereafter than men were. The Company settled this charge in EEOC mediation and issued a written warning to a project lead employee who had been involved in the reassignment. This allegation arguably did not involve “sexual harassment” or “sex-based harassment” within the meaning of the Decree, but was brought to our attention anyway by Mr. Andes, and we have no criticism of how the Company handled or resolved it.
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unusual in any company, and sheds light on how much the Company’s workplace was in need of improvement at the time the Decree was signed and Mr. Andes was hired. He was given particular recognition for maintaining a high and visible profile, being welcoming, understanding, easy to talk to, helpful and fair in resolving issues expeditiously. Similarly, the Human Resources Department was described by interviewees as proactive with clear standards, policies and procedures to follow, highly professional, accessible, responsive and markedly changed for the best.
IV. TRAINING ON THE COMPANY’S SEXUAL HARASSMENT POLICY Our Year Two Report discussed the second round of training that the Company carried
out pursuant to Paragraph 50(C)(6) of the Decree, which provides for mandatory annual refresher sexual harassment training to all employees, including all officers, managers, and supervisors (including senior managers), and mandatory sexual harassment training to all new employees during employee orientation. This training continued during the past year. It continued to be conducted by Seyfarth Shaw At Work (SSAW), who as in past years delivered exemplary training. As in previous years, most of the Monitors’ work with respect to training was performed by Nancy Kreiter.
The refresher training sessions over the past year can be divided into three groups: (1) live on-site training in the fall of 2013 at Buffalo Grove, with each manager attending one of three 1.5 hour sessions conducted by Megan Simpson of SSAW (an outstanding trainer), and each nonmanager attending one of thirteen 1.5-hour sessions, again conducted by Ms. Simpson; (2) live offsite training conducted in January 2014 in connection with the Annual Meeting for managerial and nonmanagerial field employees throughout the country and the few managers who had missed the onsite training the previous fall, conducted by five trainers from SSAW who
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delivered one manager session and seven nonmanager sessions; and (3) five on-line live “Webinars” conducted in February 2014 by Megan Simpson for field employees who did not attend the Annual Meeting. Ms. Kreiter participated in a dry run for the Buffalo Grove training on August 8, 2013, attended all three of the Buffalo Grove managerial training sessions and 11 of the Buffalo Grove nonmanagerial sessions, attended and observed portions of all eight of the field training sessions at the Annual Meeting, and observed the recent Webinars.
The manager training at Buffalo Grove went well. Of 84 managers who participated in the past year, only two were new to the training. The difference in participation levels and enthusiasm was noticeable compared to previous years. Evaluations of the training by the participating managers were excellent. Results of nonmanagerial training were also excellent. The majority of employees had been through sexual harassment training under the Decree before, sometimes twice. (Turnover among nonmanagerial employees is high, so for some of them the training was new.) Participation was active and the employees generally took the sessions seriously. In our interviews, an overwhelming percentage of employees praised the training, said it had been useful, and hoped that some form of it would continue in the future.
As in past years, observing the training, which is highly interactive and hence elicits much spontaneous commentary from participants, provided a useful source of information about how employees view the workplace at the Company. As in the past, nonmanagerial employees spoke up in training sessions about what they perceive as a double standard for managers with regard to maintaining respectful behavior, avoiding foul language, and yelling. Such complaints reinforce the impression we have, discussed below, that the Company has not fully solved this problem despite the policy (discussed above) imposing fines on such conduct.
The field training held in January in connection with the Annual Meeting went exceedingly well with some troublesome exceptions. The evaluations of the sessions were
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excellent. Three of the sessions observed by Ms. Kreiter went very well, but four others were marred by poor behavior from a handful of attendees, including one Director. Several employees kept up this conduct throughout one of the sessions even after being admonished by Mr. Andes. One employee arrived apparently intoxicated. The Company took action in response to this misconduct, issuing warning notices to five employees and putting a sixth who had previously been disciplined for another infraction on a last chance agreement. The number of attendees involved in these incidents was minimal, but the fact that it occurred at all, by employees who knew that Ms. Kreiter and Mr. Andes were monitoring the sessions, should be sufficient to convince the Company that even after three years of training and close monitoring, not everyone has gotten the message.
The Webinar training for field employees consisted of six sessions scheduled over two Saturdays plus one weeknight makeup class. Ms. Kreiter observed them all. There were a few technical glitches but nothing on the order of last year’s problems, and they were quickly taken care of. The first session had serious attendance issues, resulting in confirmation calls being made to every expected participant. The end result was 100% attendance. Ms. Simpson did an exemplary job in these Webinars, and the design, content, pace, and interactive participation were all excellent.
The training performed under the Decree has plainly had a huge impact on the work environment at the Company. The overwhelming majority of interviewed employees, most of whom had participated in the training during at least two and sometimes all three years of the Decree, reported they found the training useful and that it had had a positive impact on the work environment. Some 77% of interviewees, including 72% of female interviewees, reported that the work environment had changed for the better since the training began. Numerous interviewees commented that the quality of the training had improved over previous years.
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Nearly 85% of interviewed employees also favored continuation of this training in some form. Some employees commented that the training hadn’t taught them anything they didn’t already know, but even these employees tended to favor continuation of the training.
We strongly recommend that once the Decree ends, the Company continue specific training in the subject of sexual harassment. We understand that such training is expensive, but in our view, it would be a huge mistake not to continue training. First, to put matters bluntly, a company like this one, which depends on an aggressive telemarketing sales model, is always in danger of backsliding into the unprofessional and profane environment that characterized the BC floor only a few years ago. Second, the behavior that produced that environment extended into the reaches of management, and as discussed below, such behavior at the managerial level has not been totally eradicated, although it has been enormously reduced. Third, there is and will always be very high turnover at the Company, particularly among BCs, whose job forms the heart of the Company’s business model, so as time goes by, an increasing percentage of employees have never had sexual harassment prevention training. The Company has already committed to working with SSAW to develop a revised New Hire Orientation training program covering sexual harassment. Finally, the last year of webinar training for field employees underscored the need to hold field personnel, whether relatively new or long-term, to the same high standards of conduct as those in the Buffalo Grove headquarters office. Moreover, several reported incidents involving inappropriate behavior emanated from the field operation in the past year. Although the Buffalo Grove environment has dramatically changed over the past three years, the Company cannot afford to allow the field to become a liability.
V. ASSESSMENT OF THE CURRENT SITUATION WITH RESPECT TO CONTROL OF SEXUAL HARASSMENT Our Two Year Report stated that all objective evidence suggested that conduct 10

Case: 1:01-cv-04427 Document #: 935 Filed: 03/10/14 Page 11 of 17 PageID #:17100
traditionally viewed as sexual harassment within the Company was low, and that “the current challenge to the Company is to better control situations that do not involve overt sexual harassment but which violate the Company’s view of acceptable workplace conduct and that contribute to views of employees, especially women employees, that problems still exist.” We have not changed that view in light of the evidence we have about the final year of the Decree.
As discussed above, the number of complaints of sexual harassment or related retaliation stayed approximately the same in Year Three compared to Year Two. In about half the cases these complaints led to the Company taking serious disciplinary action, including three terminations. No employer of any size who maintains an effective sexual harassment prevention policy expects to eliminate such complaints totally, and we do not mean to imply that this number in itself indicates a serious institutional problem with sexual harassment. It does mean that the Company has no cause for complacency.
Our 2013 interviews, like our 2012 interviews, made clear that the huge majority of employees at Buffalo Grove do not see sexual or sex-based harassment as a significant problem. Asked to state, on a scale of 0 to 5, how much of a problem sexual harassment is in the Company today (0 being no problem 5 being the most severe), 68% percent answered “zero,” another 22% answered “1”, and no one answered more than 3. There was no significant variance between men and women in these answers. It should be noted, however, that Market Specialists (BCs) were somewhat less sanguine. Only 48% of Market Specialists answered “0”, compared to 77% of all others. This is one among many pieces of evidence suggesting that any remaining problems at the Company tend to be concentrated on the BC floor.
Similarly, 92% of all interviewees reported they were unaware of any current sexual harassment at the Company. Again, there is not a significant difference between men and women in answering this question. Market Specialists were slightly more likely to answer that they were
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aware of such harassment, but even in this case, 87% said that they were not. Comments from interviewees make clear that what they describe as “sexual harassment” is usually the use of profanity or obscenity (although the formal complaints that Mr. Andes investigated last year sometimes had much more serious conduct underlying them). Two female interviewees (out of 42) claimed to have experienced sexual harassment themselves during the past year, both consisting of inappropriate comments from men. The percentages of interviewees reporting that they had seen others being sexually harassed during the past year were similar (5% of women and 3% of men, compared to 9% and 3%, respectively, one year ago). Asked whether sexual harassment over the past three years has decreased, increased, or remained the same, 47% said it had decreased, while 37% said it had never been a problem during that period and had hence stayed the same. Only one person said it had increased.
As with last year, a huge majority of interviewees agreed that the Company has made significant progress during the life of the Decree in controlling sexual harassment. 88% of all interviewees agreed that the Consent Decree had been helpful or somewhat helpful in this respect; only 3% felt it had not been. This question elicited many comments from employees who had been at the Company since pre-Decree days. One BC female reported that things had been “just awful” during her earlier stint with the Company and that now they were far better. Even employees who were skeptical about the merit of the EEOC’s lawsuit agreed that the work environment was far preferable today.
Similar to last year, awareness of and appreciation of the Company’s efforts to control harassment were high among our interviewees. 100% of the interviewees had been through the sexual harassment prevention training. 93% of them found that the training had had a positive or somewhat positive result on the workplace; only three interviewees (4%) said it had not. Most interviewees, including 95% of the women, felt their supervisor was effective at least to some
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degree in keeping the workplace environment free from harassment – figures similar to those we reported last year. 90% of interviewees rated their supervisors’ professionalism to be acceptable or better, and 78% of them, up from 40% one year ago, reported that the level of supervisor professionalism had improved since the entry of the Decree (another 15%, down from 50% one year ago, said it had stayed the same).
The Two Year Report included discussion of two areas that are still potential sources of trouble for the Company. The first involves dress code violations, particularly in the BC area. Human Resources has devoted substantial attention to the dress code over the past year, and some of those efforts are described earlier in this report. 45% of the supervisors we interviewed claim to have had occasion to enforce the dress code against their supervisees. But it is not clear that these efforts have solved the problem, at least in the eyes of employees. 28% of our interviewees this year stated that the dress code is not enforced consistently. Complaints are still heard that high-producing BCs can get away with wearing clothing that would lead to others being sent home. Some women express resentment that they are picked on while men can wear anything they want.
The Company is trying, and most interviewees agree that the level of inappropriate dress has been declining over time. The kinds of issues that arise now are relatively minor, and this will never be an easy area in which to achieve consistency. There is no general agreement on what level of scantiness is appropriate dress for women. A company that is too zealous in enforcing a dress code risks making itself look ridiculous in the eyes of employees. Our impression is that female managers find it easier to enforce the dress code against female employees than male managers do, for understandable reasons. Some employers give up in the face of these difficulties. But given its recent history, ISI cannot afford to give up. It needs to settle on standards of what is acceptable and then enforce those standards against everyone,
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including big “producers.” The Company has already stepped up its enforcement efforts since we briefed it on our impressions from the interviews, resulting in more first-time warnings and people sent home. Jon Andes is now walking the BC floor once in the morning and right after lunch when the second shift arrives. Two other managers are also strolling the BC area regularly and the zone and assistant zone managers have been directed to identify violators and send them to HR or the Assistant BC Director. ISI also recognizes that dress code violations will increase during the warm weather months.
The second problem we reported on last year was continued use of foul language, particularly on the BC floor and among some managers. We noted: “A sizeable minority of our interviewees continues to view the Company as a profane workplace environment, although most say that this problem has been decreasing. This is not strictly a sexual harassment or related retaliation problem, but many employees perceive it as such. The most serious aspect of it is that there are still episodes of managers losing their tempers and cursing out employees on the BC floor in full hearing of their coworkers.”
In our interviews this year, 79% of those interviewed reported a decrease in the use of profanity compared to 64% who did so one year ago. However, employees still cite a considerable amount of swearing and yelling by managers, particularly, but not only on the BC floor. The Company recently took steps in regard to this problem, issuing warnings (and in one case a last chance agreement) to the three particular managers – all long-serving and highranking – about whom complaints of abusive behavior in public were the most frequent. This clearly was not an easy step for the Company’s owners to take, since they feel intense loyalty to the managers in question, but they did take it, admittedly under considerable pressure from us. The Company has committed to developing a training module for managers on motivating employees in a positive manner – by verbal and written communications- without swearing,
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yelling, and/or a demeaning attitude. Whether those concrete steps will solve the problem in the long run, particularly after the Decree ends and monitoring ceases, remains to be seen. But our impression is that if the Company controls this behavior among its managers, it will find it increasingly easy to enforce standards among non-supervisory employees.
VI. CONCLUSION It is appropriate now that the Decree is ending to look broadly at the Company’s
performance under it. We have extensive experience with other companies who signed decrees very similar to this one. The response of such companies to their obligations under such decrees has ranged from embracing to grudging. From our viewpoint, ISI’s response has been outstanding. When the Decree was signed, the Company lacked a human resources infrastructure, had never done really effective training in sexual harassment, continued to employ large numbers of managers and non-managers against whom serious accusations of sexual harassment had been leveled, and had a $8 million monetary obligation facing it as the result of the Decree. Today, after three years of progress driven by the remarkable efforts of its Executive Director of Human Resources with the support of John and Tyler Burgess, there is all but universal agreement of the Company’s employees that it is a different and far better place to work. Violations of the Company’s sexual harassment policy still occur, but they are dealt with immediately and with appropriate severity. The work force is now thoroughly trained in that policy, and appreciates it. Unacceptable conduct by managers that set a poor example for the rest of the work force has been greatly reduced. ISI has complied fully with the Decree.
We caution that continued vigilance is imperative. ISI has demonstrated how much difference can be made by a single skilled director of Human Resources who has the support of the company’s owners. This is not a big company and the procedures that have been put in place over the last three years could prove fragile. The pressures inherent in an aggressive sales
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environment that encourage misbehavior and sexual harassment in the absence of adequate controls will never disappear. To keep in place the progress that has been made at ISI will require the Company’s top management to continue with ongoing training of its work force and with maintaining its present system of prompt investigation and punishment of infractions – and to continue spending the money necessary to make those things happen. In fact, when interviewees were asked, "If you were running ISI, what steps, if any, would you take to limit sexual harassment and/or improve the handling of complaints?" there were four overwhelming responses; stay the course, keep Jon Andes, continue training, stop the profanity and enforce the dress code.

Date: March 10, 2014

/s/ Nancy B. Kreiter Nancy B. Kreiter
/s/ George F. Galland, Jr. George F. Galland, Jr.

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Case: 1:01-cv-04427 Document #: 935 Filed: 03/10/14 Page 17 of 17 PageID #:17106 CERTIFICATE OF SERVICE
Lisa Mecca Davis certifies that she caused a copy of the foregoing Report to be served upon all counsel of record, by this Court’s electronic-filing system, this tenth day of March, 2014.
/s/ Lisa Mecca Davis Lisa Mecca Davis
17

 </s> E.E.O.C.  v.  International  Profit  Associates,  Inc.,  647  F.Supp.2d  951  (2009)  

  

  
  

647 F.Supp.2d 951 United States District Court,
N.D. Illinois, Eastern Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Plaintiffs, v.
INTERNATIONAL PROFIT ASSOCIATES, INC., Defendant.
Case No. 01 C 4427. |
Aug. 12, 2009.

Smason, Ethan M.M. Cohen, Gregory M. Gochanour, John C. Hendrickson, United States Equal Employment Opportunity Commission, Chicago, IL, John W. Cooley, Attorney at Law, Evanston, IL, for Plaintiffs.
Jacie C. Zolna, Myron Milton, Cherry Myron M. Cherry & Associates, Jennifer Anne Naber, Violet M. Clark, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Chicago, IL, for Defendant.

Synopsis Background: Employer moved for summary judgment against certain individual female claimants in sexual harassment class action suit brought by the Equal Employment Opportunity Commission (EEOC).
Holdings: The District Court, Joan B. Gottschall, J., held that:
[1] genuine issues of material fact existed as to whether alleged offensive conduct by male supervisors and coworkers rendered certain female claimants’ workplace objectively hostile;
[2] fact that female claimant could not identify by name all of the male employees whose conduct she found offensive did not preclude EEOC from asserting a hostile work environment claim on her behalf;
[3] duration of female claimant’s eight day period of employment did not preclude EEOC from asserting a hostile work environment claim on her behalf; and
[4] sex discrimination claims of non-United States citizen working for Canadian employer outside the United States were not actionable.

MEMORANDUM OPINION AND ORDER
JOAN B. GOTTSCHALL, District Judge.
Pursuant to the schedule adopted in this case for streamlining summary proceedings, International Profit Associates, Inc. (“IPA”) has moved for summary judgment against individual Claimants Nos. 4, 9, 10, 14, 18, 19, 23, 27, 34, 40, 41, 48, 62, 68, 76, 81, 85, 86, 90, 92, 97, 115, 123, 129, 145, 146, 152, 155, 161, 174, 179, 183, and 190 in this class action suit brought by the Equal Employment Opportunity Commission (the “EEOC”). This memorandum opinion and order picks up where the court’s two previous summary judgment decisions left off. See E.E.O.C. v. Int’l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *1 (N.D.Ill., July 14, 2008) (“IPA SJ–I ”) and EEOC v. Int’l Profit Associates, Inc., 654 F.Supp.2d 767, 2009 WL 1956932 (N.D.Ill.2009) (“IPA SJ–II ”). Because the procedural posture, background facts, and governing legal standards were discussed in *956 detail in those opinions, this opinion incorporates those portions of the earlier decisions and proceeds directly to the disposition of the individual motions. For the reasons set forth below, the motions are resolved as follows.

Motion granted in part and denied in part.
Attorneys and Law Firms *955 Jeanne B. Szromba, Ann M. Henry, Diane Ilene   
  

Claimant No. 4 [1] Claimant No. 4 worked for IPA for shortly less than three months, from April to July of 2000. During that time, she claims to have been subjected to comments such as “nice ass” on a near-daily basis, and comments about her legs (“look at those legs”) multiple times a week. She alleges that upwards of twenty men made comments like
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E.E.O.C.  v.  International  Profit  Associates,  Inc.,  647  F.Supp.2d  951  (2009)  

  

  
  

these, including both colleagues in her department and male IPA employees she did not know. In addition, male employees regularly whistled at and ogled her when she walked past. No. 4 states that she would glare at the men she did not know to communicate that she did not appreciate these behaviors, and that she would tell the men she did know to stop looking at her like that.
No. 4 recalls unwelcome behavior by three male employees in particular. On one occasion, No. 4 saw Shayne Wetherall, who led the department in which she worked, pull down his pants and expose his buttocks to the department’s female secretary, in view of eight to ten people. Wetherall also repeatedly looked No. 4 up and down, made comments about her buttocks and breasts, and tried to look down her blouse. No. 4 states that she complained to Wetherall about his behavior and comments. She also recalls similar conduct by a colleague, Jim Macelli, who sat next to her. In addition, Macelli asked No. 4 on two or three occasions to go out with him and have sex. Macelli also asked her six to eight times over a several week period whether she would let him take pictures of her to post on a pornographic website. No. 4 declined all of these invitations. Finally, No. 4 asserts that a male individual whose name she does not recall, but who worked at IPA as a bill collector, would stand over her, without any business reason to be near her, and peer down her blouse. This same individual also asked No. 4 explicitly whether she was wearing panties and what kind. He also asked her out after work, and because he was married, No. 4 interpreted his invitation as a request for sex. No. 4 also testified that she saw male employees at IPA slap the buttocks of female employees, although she does not know the names of these employees.

*957 Claimant No. 9 [3] Claimant No. 9 worked in the inside sales department at IPA from June 8, 2000 to July 21, 2000. Tony Jones was the head of the department, and No. 9’s direct supervisor was Scott Hanson. No. 9 claims that both of these men told her repeatedly that she had “nice legs” or a “nice ass.” Hanson would comment on her legs while eyeing her up and down. Other male colleagues also commented on No. 9’s legs or whistled at her. No. 9 states that she was subjected to this conduct on a daily basis.
In addition, No. 9 claims that Scott Hanson touched her on multiple occasions. Three or four times, Hanson told No. 9, “ooh, you’re tense” and rubbed her shoulders, touching down to the tops of her breasts where her bra was. On these occasions, No. 9 would pull away immediately, but Hanson continued to touch her. At some point during No. 9’s short tenure at IPA, Hanson moved his workspace next to hers. Thereafter, on three occasions, while No. 9 and Hanson were seated in their chairs, Hanson pulled No. 9’s chair close to him, so that the two were facing each other, with her legs between his, close to his groin. Hanson then rubbed No. 9’s thighs and asked her out for drinks or dinner. The first time it happened, No. 9 said, “no, Scott. I’m engaged. You’re engaged. What are you doing?” Hanson replied that although they were both engaged, they belonged together. No. 9 quit her job on the day Hanson rubbed her thighs for the third time.

The summary above is not exhaustive of No. 4’s allegations, but it suffices to give the flavor of her claim, and, more to the point, to demonstrate why her claim withstands summary judgment.
[2] IPA asserts that No. 4’s allegations describe conduct that is insufficiently severe or pervasive as a matter of law.1 This argument fails in view of the summary of conduct noted above. As the court previously held with respect to Claimant No. 108, for example, sexual harassment need not be both severe and pervasive to be actionable, Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir.1999), and a reasonable jury could find that in the less-than-three-month period in which No. 4 was employed by IPA, multiple overt sexual solicitations, coupled with daily commentary by numerous male employees—including No. 4’s boss—about No. 4’s body, rendered her workplace objectively hostile. IPA’s motion for summary judgment as to No. 4 is denied.

IPA argues that this conduct is insufficiently severe or pervasive as a matter of law. The court disagrees. A jury could find that daily comments about No. 9’s body, whistles, and at least six separate instances of unwanted touching by No. 9’s supervisor2 in her less than two months of employment is sufficiently severe or pervasive to render her workplace objectively hostile. IPA’s citation to Weiss v. Coca–Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir.1993), is inapposite, at least on the basis that in that case, only one male employee was alleged to have engaged in unwelcome conduct. No. 9, by contrast, alleges that both Jones and Hanson harassed her, and further states that she was exposed to daily comments about her body by other male coworkers as well. IPA’s invocation of Adusumilli v. City of Chicago, 164 F.3d 353, 357–58 (7th Cir.1998), is likewise unavailing, as that case did not involve repeated touching of the plaintiffs intimate body parts by her supervisor, coupled with invitations to go out with him after work.

  

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For the foregoing reasons, IPA’s motion for summary judgment of Claimant No. 9’s claim is denied.

Neither No. 10 nor Gottlieb mentioned the face-painting comment of earlier that day. No. 10 states that she gave her resume to Gottlieb the next day, and that shortly thereafter, he offered her a job as his assistant.

Claimant No. 10 Claimant No. 10 worked as an administrative assistant at IPA from September 14, 1999 to January 7, 2000. No. 10 worked in the mergers and acquisitions department, and her supervisor for the duration of her employment was Scott Wood. No. 10 makes the following allegations in support of her claim:
*958 On one occasion shortly before No. 10 quit her job, she witnessed Tony Jones, the director of the inside sales department, grab a female employee and push her backwards over a desk, then lift his leg over her and simulate having sex with her. No. 10 saw the woman try to push Jones off of her, screaming, “get the hell off me.” Jones then pulled the woman from the desk onto the floor, where he kneeled on top of her and further simulated sex, while the woman continued to scream at him and try to push him off. No. 10 described the incident as follows: “Tony had grabbed the girl, and she was by a desk, and pushed her on the desk and pretty much humped her as a dog would go to the bathroom, and then pulled her down to the floor and as she was screaming, he jumped on her and started humping her again.”
On another occasion, as No. 10 was walking by a male manager’s office, she saw a female employee straddling the manager’s lap and putting eye drops in his eyes. No. 10 heard a lot of giggling as this was going on.
No. 10 claims that in the last month of her employment at IPA, Richard Gottlieb, whose position she did not know, offered her a promotion with a pay increase to become his administrative assistant in a new department that was being created. At the time, No. 10 had spoken to Gottlieb on only a handful of occasions, primarily while the two were outside smoking cigarettes. Over the course of these conversations, Gottlieb explained that he had received a promotion at IPA, and he asked No. 10 about her position and professional background. One day, No. 10 encountered Gottlieb in the reception area near Gottlieb’s office, where No. 10 was speaking to Kathy, the receptionist. At the time, Kathy was putting on mascara, and Gottlieb asked No. 10, who was not wearing makeup, why she didn’t “paint [her] face.” No. 10 found this comment “weird,” but she “didn’t take [it] seriously,” “let it go,” and “didn’t think about it again.” Later that same day, Gottlieb asked No. 10 to bring in her resume so that he could consider her for a position as his assistant.
  
  

The following day, No. 10 met with Shelle Bareck. According to No. 10’s testimony, Bareck confirmed that No. 10 would begin working for Gottlieb and would receive a pay increase, but explained that No. 10 had to stay in her current position for two weeks until a replacement could be found. No. 10 spoke to Wood about her transfer later that day. The next day, although No. 10 was still working for Scott Wood, she attended a brainstorming meeting of people who were going to be on Gottlieb’s team in the new department. No. 10 claims that later that day, as she was making copies at the photocopier, Gottlieb “took out his wallet, threw all his cash out, and said, what the fuck do I have to do to get you to paint your face and shorten your dress?” No. 10 says she was “stunned” by Gottlieb’s conduct, and that she reported it to Bareck the same day. She further testified that as a result of Gottlieb’s comment, she didn’t want the position as his assistant anymore.
The following day, Bareck called No. 10 to her office and said told her that she (Bareck) had spoken to John Burgess, and that they had decided that No. 10 should continue working in the mergers and acquisitions department, rather than become Gottlieb’s assistant. No. 10 felt as though she had been slapped on the wrists for reporting Gottlieb. The next time she encountered Gottlieb, he told her that she *959 had “made a very big mistake” and that she was “messing with the wrong person.” For the remainder of No. 10’s employment at IPA, Gottlieb did not speak to her but would glare at her in a way that made her feel uncomfortable. About a month later, No. 10 quit her job.
IPA argues that No. 10’s allegations do not amount to severe or pervasive harassment, and that the company took prompt, remedial action in any event. IPA also disputes that No. 10 was ever offered a promotion. IPA argues that Gottlieb had no authority to extend such an offer and disputes No. 10’s assertion that Bareck made the offer on the ground that it is based on inadmissible hearsay. IPA also contends that to the extent No. 10’s claim is based on a retaliation theory, that theory was not advanced in EEOC’s complaint and may not be asserted now.
[4] To begin with, the court agrees that because the EEOC did not assert a retaliation claim on behalf of class members, it may not now seek damages for class members based on that theory of liability. Cheek v.
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Peabody Coal Co., 97 F.3d 200, 202–03 (7th Cir.1996). It does not appear, however, that the EEOC is pursuing No. 10’s claim based on a retaliation theory.3 Although EEOC’s argument is less than crystal-clear, the court understands the EEOC’s position to be that IPA’s alleged change of course regarding No. 10’s promotion is not an independent Title VII violation, but instead rebuts IPA’s argument that it took prompt remedial action in response to No. 10’s complaint about Gottlieb’s harassment, since she was worse off as a result of that action. In other words, the EEOC claims not that IPA violated Title VII because it retaliated against No. 10 for reporting Gottlieb’s conduct, but rather that IPA cannot escape liability for No. 10’s hostile environment claim on the basis that it took effective action in response to her complaint.

workplace. Under these circumstances, No. 10 is entitled to have a jury decide whether her working environment was subjectively and objectively hostile. IPA’s motion to dismiss her claim is denied.
Claimant No. 14 EEOC does not oppose IPA’s motion for summary judgment of Claimant No. 14’s claim. Accordingly, the motion is granted.

[5] It is indeed well settled that “[a] remedial measure that makes the victim of sexual harassment worse off is ineffective per se,” regardless of whether the measure puts an end to the alleged harassment. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 811 (7th Cir.2000) (quoting Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990), and citing cases). IPA insists that No. 10 was not worse off, since there is no admissible evidence to suggest that No. 10 was slated for any promotion in the first place. Although the court is not entirely persuaded by this argument,4 *960 it need not resolve the issue. As the court understands the parties’ respective positions, the appropriateness of IPA’s response is relevant to IPA’s defense that it cannot be held liable for Gottlieb’s conduct. See Tutman v. WBBM–TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir.2000) (“In hostile work environment cases, the employer can avoid liability for its employees’ harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.”). It does not, however, bear upon the independent question of whether No. 10 was subjected to a hostile environment.
[6] No. 10’s testimony, taken as a whole, supports IPA’s position that the three episodes that No. 10 asserts (or four, if Gottlieb’s two face-painting comments are counted separately), are isolated occurrences. Nevertheless, the court is unwilling to find, as a matter of law, that taken together, they are so benign as to fall short of actionable harassment. No. 10’s description of Tony Jones’s sexual assault of a female coworker depicts not only a sexually suggestive pantomime but a deliberately degrading one. The remaining episodes, including the money-throwing outburst by Gottlieb (which a reasonable woman might indeed find humiliating), arguably reinforced not only a “sexualized atmosphere” at IPA, as EEOC asserts, but also No. 10’s impression that female employees—herself included—could be degraded with impunity at the

Claimant No. 18 Claimant No. 18 was a business coordinator at IPA from September of 2000 to August of 2001. Her claim is based on the following allegations:
For the last two months of No. 18’s tenure at IPA, David Soskin was her zone manager. During that period, Soskin once responded to No. 18’s comment that she planned to leave work at the end of her scheduled shift with the question, “what are you going to do, go home and ...?” while making a gesture of “tweaking” his nipples. No. 18 understood this to imply that she was going home to masturbate. In a similar vein, No. 18 claims that Soskin said to No. 18’s son Jeremy, who also worked as a business coordinator in Soskin’s zone, “Jeremy, you jack off in front of the computer, don’t you?” Jeremy replied that he did not, to which Soskin retorted, “Well, I know for a fact that your mom does.” No. 18 states that other people heard this exchange.
No. 18 also recalls hearing Soskin use vulgar language while he was on the phone. Specifically, she heard him shout, “I don’t care what you do. I just want a fucking sale, and I will hire a fucking whore to lick your asshole out.”
On two separate occasions, sales representatives with whom No. 18 worked made sexually suggestive comments to her over the phone. In the first instance, Dante DeFabio told her “a sale is better than an orgasm.” No. 18 testified that she did not respond to this comment. On the second occasion, Sam Jones asked her, “do you want to get laid?” No. 18 does not recall whether she responded to that comment.
No. 18 also claims that on one occasion, she saw a female employee massage a male employee’s neck, and that the

  

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female employee “dragged her breasts up and down against his back.” No. 18 recalls *961 saying, “that’s disgusting.” No. 18 further claims that Keith Link was “always” putting his hands on female employees’ “rear ends and on their shoulders.”
No. 18 recounts one instance in which she witnessed an argument between zone manager Dmitri Kotsakis and a female employee named Gloria, with whom No. 18 believes Kotsakis may have been involved romantically. During the argument, Kotsakis screamed that Gloria was a “fucking cunt.”
Finally, No. 18 testified about two instances involving violence against a particular female IPA employee. No. 18 states that she once ran into the victim in the ladies’ room at IPA, and that the woman cried and told her about how a male IPA employee named Victor and two or three of Victor’s friends had beaten her with a baseball bat and attempted to rape her after the female employee had agreed to give them a ride. No. 18 states she saw scratches, bruises, and a lump the size of an orange on the woman’s body and head, which the woman told her were the result of the attack. No. 18 heard from “everyone” at work that the same female employee was, on another occasion, struck with a manufacturing guide by a male IPA employee in the course of an argument at work, and that the female employee left IPA and never returned. No. 18 did not herself witness the altercation.
No. 18 also describes other conduct that made her scared and caused her to leave work on one occasion. In particular, she described a fistfight between David Soskin and a male employee named Nick, and an episode in which Soskin slammed a plastic clipboard down, causing it to shatter. No. 18 was sufficiently upset by the fistfight that she spoke to Shelle Bareck about it, went home early that day (a Thursday), and did not return to work until the following Monday. She also stated that she tried to steer clear of Soskin after the shattered clipboard incident because she was fearful of what he might do if he got angry. In her deposition, No. 18 stated that she did not believe these instances constituted sexual harassment, but that they illustrated the nature of IPA’s work environment.

was largely about No. 18 masturbating. A reasonable fact finder could interpret Soskin’s masturbation comments not as gender-neutral off-color jokes, but instead as deliberate attempts to humiliate No. 18 sexually in front of coworkers, including her son, and that she was singled out for the comments based on her sex.
Next, it is not clear that the totality of No. 18’s allegations describe conduct so benign as to fall within Title VII’s safe harbor. It is true that the remaining remarks directed at her (Dante DeFabio’s comment comparing a sale to an orgasm and Sam Jones’s question “do you want to get laid?”) are, indeed, fairly tepid. But the court is mindful that they occurred in a working environment punctuated by the loud use of sexually degrading epithets for women, and in which at least one manager was “always putting his hands all over” female employees.
Finally, IPA conspicuously omits from its opening brief any reference to No. 18’s testimony regarding the injuries she claims a coworker showed her in the ladies’ room at IPA, which the coworker attributed to a sexual assault by a male *962 IPA employee. IPA objects to the court’s consideration of this evidence on the ground that it is based on inadmissible hearsay. Nevertheless, IPA addresses the evidence obliquely in its reply, equating it with the “uncomfortable [workplace] rumors” that were held non-actionable in McDonnell v. Cisneros, No. 94 C 4440, 1995 WL 110131 (N.D.Ill.1995). IPA’s position is flawed in several respects. First, IPA’s blanket hearsay objection poses no obstacle to the court’s consideration of the portion of No. 18’s testimony that is based on personal knowledge. No. 18 claims to have seen her colleague’s bruises, scratches, and bumps first-hand, and IPA has asserted no basis for excluding No. 18’s testimony about what she saw. Second, it is not entirely clear that even the portion of testimony that is based on what No. 18’s colleague allegedly told her—that the injuries were caused by a male IPA employee during an attempted rape—is inadmissible hearsay: the court assumes that the statement is not offered for its truth (i.e., whether the named IPA employee in fact assaulted No. 18’s colleague), but instead to support No. 18’s subjective perception that IPA’s workplace was hostile towards women.

IPA argues that No. 18’s allegations do not describe severe or pervasive harassment, and that the harassment she describes was not based on sex. The court is not convinced on either front. First, IPA makes much of the fact that Soskin’s comments about masturbation were made to both women and men. But IPA overlooks that the only male employee identified as a target of such comments is No. 18’s son, and that the comment to him

In addition to attenuating IPA’s evidentiary objection, a focus on the impact of the ladies’ room encounter on No. 18 underscores the analytical distinction between her claim and the ones asserted in McDonnell, where the plaintiffs relied on “two anonymous letters and the rumors circulating throughout the workplace concerning their sexual misconduct” to support their claim of a hostile environment. Id. As the Seventh Circuit later explained in

  

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Yuknis v. First Student, 481 F.3d 552 (7th Cir.2007), the reason claims “based purely on hearsay or rumor” are not generally actionable is that the offensive acts are too indirect or remote, from the perspective of the claimant, to rise to the level of actionable harassment. Here, however, what IPA cavalierly calls the “shock value” of No. 18’s “sensational” allegations (and the court does not hesitate to conclude that a reasonable woman could indeed find her allegations shocking) is that she claims to have witnessed, first-hand, what she believed was evidence of a violent sexual assault of a female coworker by a male coworker.5 In this light, it is clear that No. 18’s claim is not “based purely on hearsay or rumor.” Yuknis, 481 F.3d at 555–56.
No. 18 may or may not ultimately persuade a jury that her own working environment was objectively hostile, but IPA has not demonstrated that it was not so as a matter of law. Accordingly, IPA’s motion for summary judgment of her claim is denied.
Claimant No. 19 Claimant No. 19 is one of two original complainants in this case. EEOC and IPA have each submitted copious statements of fact in support of their respective positions on summary judgment. Certain facts are indeed undisputed, and they are discussed below. Nevertheless, the parties offer vastly differing accounts of: No. 19’s relationship with IPA’s managing director John Burgess; the quality (and quantity) of No. 19’s work for IPA; No. 19’s entitlement to commissions she alleges were due and unpaid; the manner in which No. 19 was (or was not) accorded certain benefits at IPA; and the circumstances surrounding her termination.
The parties agree that: No. 19 began her employment at IPA on July 5, 1994 and worked as a business coordinator until August 14, 1994. She then worked in the *963 quality control department from August 15, 1994, to August 29, 1994, in the accounting department from August 30, 1994, to September 14, 1997, as a business analyst from September 15, 1997, to November 30, 1997, as an outside sales representative from December 1, 1997, to January 11, 1998, and as an inside sales representative from January 12, 1998 to March 20, 1998, when she was terminated. No. 19 claims that she was summarily fired by John Burgess shortly after refusing his sexual advances. IPA asserts that Valerie Ramsdell, No. 19’s manager in her last position at IPA, terminated No. 19 because of poor performance and habitual tardiness.

The parties agree that No. 19 had sexual intercourse with John Burgess on several occasions. IPA claims that the relationship between Burgess and No. 19 was consensual, and that No. 19 welcomed their sexual intercourse.6 No. 19 disputes that her sexual relationship with Burgess was either welcome or consensual. She claims that John Burgess harassed her continuously from the time she began working in the accounting department. He made comments such as, “lean over so I can see your tits,” and “you have nice ankles; you must give good blowjobs.”7 No. 19 claims that Burgess pressured her to go out with him for a year, during which time she refused his advances, and that he touched her inappropriately on six or seven occasions while she was in his office. For example, she claims that on one occasion, he backed her against a wall, grabbed his crotch, and tried to kiss her on the mouth and touch her breasts. She alleges that on another occasion, Burgess grabbed No. 19’s arm and tried to pull her into a side room of his office and kiss her. She claims that Burgess also insinuated, in front of other IPA employees, that he and No. 19 had a sexual relationship by making suggestive comments such as, “yea, she’s really good” and “what time are we meeting tonight?” even though at the time, No. 19 had consistently refused his advances. She claims that Burgess became “obsessive,” writing her love letters, paging her to his office repeatedly, and calling her fifteen to twenty times a day, demanding to know why she would not go out with him. Burgess himself admits that he became “infatuated” with No. 19.
No. 19 states that she ultimately agreed to have sexual intercourse with Burgess to protect her job because she feared Burgess would retaliate against her inside and outside of work if she did not give into his advances. No. 19 claims that Burgess *964 “frequently made suggestions about keeping [her] job,” and that she was afraid she would be demoted if she did not agree to go out with him. During the period in which Burgess was harassing her, No. 19 was involved in a child custody battle with her ex-husband. She claims that she spoke to Burgess about her child custody case, and that on several occasions, she sought advances from the company to pay her attorney. No. 19 alleges that Burgess approved one such request, but denied another, telling her, “you don’t need an advance if you see me.” No. 19 feared that if she did not sleep with Burgess, he might retaliate by making false statements to her ex-husband that would negatively affect her ability to win custody of her child. No. 19 states that she did not trust Burgess’s “mental stability,” and that she feared he was capable of anything. No. 19 claims that she had sexual intercourse with Burgess approximately four or five times between early and late 1997, although she does not remember the specific dates.

  

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It is undisputed that while No. 19 worked in the accounting department, she arrived at work late on “several occasions,” though No. 19 claims that she had been authorized to arrive late because she was doing a good job and working a lot of hours. No. 19 acknowledges, however, that at some point during that period she received a verbal warning relating to her tardiness.
In late 1997, No. 19 asked to be transferred to a position as a business analyst, which was a position that would require her to work off-site, rather than in IPA’s office. She claims that one reason she requested the transfer was to get out of the building to avoid contact with Burgess. No. 19 began working as a business analyst in September 1997. She claims that Burgess continued to harass her by regularly calling her cell phone and pressuring her to have sex with him. Burgess allegedly promised No. 19 that she could have assignments that would keep her closer to home (which was important to No. 19 because she wanted to be near her child), if she would continue having sex with him.
No. 19 then transferred successively to the outside sales department and the inside sales department. The parties dispute numerous facts relating to her tenure in these departments. IPA claims that No. 19 generally performed poorly; No. 19 claims she performed well but was not credited for the sales she made. Specifically, IPA asserts that No. 19 made no sales while working in the outside sales department, and “generated commissions for only two sales” during her employment in the inside sales department. Meanwhile, No. 19 claims that she made at least one sale each week in the outside sales department, and that she made one to two sales a week in inside sales. IPA asserts that while in inside sales, No. 19 frequently came in late, and that she did not spend as much time on the phone as required to perform well. No. 19 claims that she rarely came in late, and that she was on the phone most of each day.
No. 19 also states that while she worked in the outside sales department, she and a guest were invited on a weekend trip to Las Vegas sponsored by IPA. She claims that John Burgess asked her who she planned to invite as her guest, and she replied that she would be bringing her boyfriend. Within days of this conversation with Burgess, No. 19 received a letter in the mail from Shelle Bareck, telling her she had been “excluded” from the Las Vegas trip because IPA “was unable to procure any additional lodging in Las Vegas” and was not “capable of increasing the size if [its] banquet facilities.”8 No. 19 states that at the time, she called Bareck *965 to find out why she had

been “uninvited” to Las Vegas, and that Bareck replied, “you know how John is.” No. 19 is unaware of any other IPA employee who was “uninvited” to Las Vegas.
No. 19 alleges that in March of 1998, she complained to Gregg Steinberg that she had not been paid commissions that were due to her. She claims that she showed Steinberg a report indicating that No. 19 was owed $4000, but that Steinberg just laughed at her.9 The following day, John Burgess called No. 19 into his office. In the presence of four other department heads, Burgess shouted at No. 19, “You’re fucking fired. You have two minutes to get out of this building.” IPA asserts, however, that the decision to fire No. 19 was taken by Valerie Ramsdell and was based on No. 19’s poor performance. No. 19 claims that she was fired because she had stopped giving in to John Burgess’s pressure for sex.
The foregoing summary is not intended to be exhaustive of the allegations No. 19 makes in support of her claim. They suffice, however, for the resolution of the present motion.
IPA asserts that No. 19’s claim cannot withstand summary judgment because she cannot demonstrate that she was subjected to a “tangible” adverse employment action, and because her hostile environment claim is both time-barred and based upon conduct that is insufficiently severe or pervasive as a matter of law.
The court begins by noting the Seventh Circuit’s observations in Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 753–54 (7th Cir.2006), one of the cases IPA now cites:
[S]ummary judgment briefs that present multiple versions of the facts arouse our attention at the outset because under the Federal Rules of Civil Procedure, a judge may grant summary judgment for a moving party only where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. [Citations omitted]. Because our only task upon review of a summary judgment motion is to determine “whether there is any material dispute of fact that requires a trial,” (Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994)), multiple versions of the facts increase the chances that at least one of those conflicting facts will be material to the outcome of the case.
Id. As the court observed at the outset, the parties have offered extensive factual statements that, while overlapping to some degree, present starkly differing versions of events that marked No. 19’s employment. Having reviewed the “tangled web of facts” at issue, id. at

  

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753, the court concludes that No. 19 is entitled to have a jury adjudicate her claims.
First, No. 19’s hostile environment claim is not time-barred. IPA acknowledges the continuing violation doctrine set forth in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), under which a plaintiff may bring a hostile environment claim “so long as an act contributing to that hostile environment takes place within *966 the statutory time period,” but argues that No. 19’s claim is barred because No. 19 last had sexual relations with Burgess in July of 1997 (a fact that No. 19 disputes),10 and because No. 19’s allegations with respect to incidents that occurred after November 25, 1997 (the relevant cutoff date in this action) are unrelated to her allegations of a hostile environment. IPA’s argument is meritless. To begin with, when No. 19 last had sexual relations with Burgess is irrelevant in view of her allegation that Burgess continued to harass her long after the last time the two had sex. IPA argues that the court should disregard this allegation because it was first made in a declaration accompanying the EEOC’s response to IPA’s motion. The basis for IPA’s position is that the declaration contradicts No 19’s deposition testimony. IPA relies on Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 759 (7th Cir.2006), in which the court held that a plaintiff cannot create an issue of material fact “by submitting an affidavit that contradicts an earlier deposition.” Having reviewed No. 19’s deposition in its entirety, however,11 the court concludes that Pourghoraishi is inapposite. In that case, which involved a claim of racial discrimination, the plaintiff stated in his deposition that he had no physical attributes that made him appear to belong to a racial minority. In his legal memorandum, however, the plaintiff argued that “any reasonably aware and knowledgeable person would have identified [the plaintiff] as Middle Eastern, both by his appearance and speech,” and cited to an affidavit by plaintiffs lawyer. Id. at 758. The court disregarded the affidavit because it “directly conflict[ed]” with the plaintiff’s own testimony. Id.
In this case, there is no such direct conflict. While it is true that, under IPA’s questioning, No. 19 testified primarily (though not exclusively) to Burgess’s conduct prior to November 25, 1997, she neither affirmatively stated that his unwelcome advances stopped after that time, nor stated that the pre-November 25, 1997, conduct about which she primarily testified represented the entirety of the harassment she experienced by Burgess. The fact that IPA focused its questioning on the period of No. 19’s employment preceding her sexual relationship with Burgess is consistent with IPA’s theory of her claim, which is that it must be limited to Burgess’s conduct prior

to the time he and No. 19 began a sexual relationship.12 It is not at all clear that IPA did not make a tactical decision not to develop No. 19’s testimony relating to the period after her sexual relationship with John Burgess ended, and the court presumes that if such testimony were developed, it would support her claim. See IPA SJ–II, 654 F.Supp.2d at 834 n. 16, 2009 WL 1956932, at *56 n. 16 *967 (counsel’s failure to develop testimony about harassment claimant asserts allows for presumption, on summary judgment, that additional testimony would have supported her claim). In any event, the court finds no direct conflict between her deposition testimony and her later declaration. Accordingly, Pourghoraishi does not control.
IPA also argues that the statements in No. 19’s declaration are too vague to support her claim. But No. 19’s statement that during the limitations period, Burgess continued to pressure her to have sex with him by calling her regularly and offering her more desirable work conditions (specifically, “smaller jobs and jobs closer to home”) if she would agree to have sex with him are substantially more precise than the ones the court found too vague in the case upon which IPA relies, Spencer v. City of Elkhart, 1995 WL 358819 at *29 (N.D.Ind.1995). In that case, the court rejected “vague assertions that ... ‘some of [the plaintiff’s] supervising officers made unwelcomed sexual advances toward [her] and engaged in verbal and physical conduct of a sexual nature in [her] presence.” ’ While the allegations cited in Spencer are devoid of any meaningful detail, the same cannot be said of No. 19’s statements in her declaration. Moreover, the court sees no reason to consider No. 19’s declaration in isolation—indeed, IPA’s own position appears to emphasize that the declaration cannot be analyzed independently of No. 19’s deposition testimony. Viewed in the light of her testimony as a whole, the statements in No. 19’s declaration are not too vague to support her claim.
Next, IPA’s assertion that No. 19’s allegations relating to conduct after November 25, 1997, are unrelated to facts contributing to her hostile environment claim simply overlooks certain of No. 19’s allegations. IPA focuses on the allegations that No. 19 was denied commissions and advances in early 1998, then argues that these allegations have nothing to do with John Burgess, whose conduct is at the heart of No. 19’s hostile environment claim. This argument falls, however, with the court’s conclusion above that No. 19’s testimony amounts to adequate evidence that Burgess continued to harass her, calling her multiple times a day and pressuring her to have sex, throughout her stint as a business analyst (which ended on November 30, 1997, within the limitations period) and into her tenure in the outside sales department.

  

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[7] Based on the foregoing, the court concludes that No. 19’s claim is not time-barred, and that it may consider “the entire scope of [her] hostile work environment claim, including behavior alleged outside the statutory time period,” National Railroad, 536 U.S. at 105, 122 S.Ct. 2061. Having made that determination, there is no need to linger on IPA’s argument that the conduct No. 19 alleges is insufficiently severe or pervasive as a matter of law. IPA does not even argue that, if Burgess’s conduct over the course of No. 19’s entire period of employment is considered, the harassment she alleges is not severe or pervasive. The court has no trouble concluding that a reasonable jury could find in No. 19’s favor on that issue.
[8] Less clear is whether No. 19’s claim of sex discrimination based on one or more actionable adverse employment actions can survive summary judgment. The EEOC offers merely seven lines of text in response to IPA’s argument that No. 19 has failed to raise a triable issue of fact on this question. In a cursory fashion, EEOC insists that the evidence is sufficient to demonstrate a material dispute as to whether No. 19 was terminated, denied commissions, and/or “uninvited” on IPA’s Las Vegas weekend as a result of sex-based discrimination. IPA replies that: 1) *968 No. 19 was terminated not because of sex discrimination but because she was a poor performer; 2) the undisputed facts prove that No. 19 was not denied any commissions to which she was entitled; and 3) because No. 19 had no entitlement to the Las Vegas trip, her exclusion from the trip is not actionable as a matter of law.
Although neither of the parties makes reference to the standards that are by now familiar in the Title VII context, No. 19 can ultimately prove her adverse employment action claim in one of two ways: the direct method or the indirect method. Raymond v. Ameritech Corp., 442 F.3d 600 (7th Cir.2006). The court begins with her claim of unlawful termination, since there is no question that termination is a materially adverse action. Under the direct method of proof, No. 19 need not come forward with an admission of discriminatory animus to survive summary judgment, provided that she can construct “a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination by the decisionmaker.” Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir.2006) (quoting Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir.2004)). Despite IPA’s protestations to the contrary, the court finds that No. 19 has minimally met that burden here. IPA argues that in order to conclude that No. 19 was terminated because of her sex, a jury would have to “ignore[ ] all of the events leading up to her termination.” Not so. It is IPA who

ignores the events from which a jury could reasonably conclude that No. 19’s termination was the ultimate result of her refusal to continue a sexual relationship with John Burgess.
As the court understands the EEOC’s theory of No. 19’s case, John Burgess exercised an enormous amount of discretionary control over the terms and conditions of No. 19’s employment, and that he exercised his discretion in a way that rewarded her for agreeing to have sex with him and punished her for rebuffing him. At her deposition, No. 19 gave specific examples of Burgess’s discretionary control. For example, No. 19 testified that at while she worked in accounting, there was no company policy regarding when advances would be paid. Instead, “it was whenever John Burgess wanted to, whenever he felt like it, and how much he wanted to give you.” No. 19’s undisputed testimony that she personally managed the advance accounts of IPA employees suggests that she can competently testify to Burgess’s exercise of discretion, at least as to how advances were awarded. In addition, No. 19 testified that Burgess told her, “you don’t need an advance if you see me,” which she understood as a solicitation for sex, and that he also made suggestions about “keeping [her] job.” Finally, No. 19 claims that when she complained to Shelle Bareck about Burgess’s conduct, Bareck’s responses reinforced that Burgess called the shots: when No. 19 complained about her “problems” with John Burgess,13 Bareck allegedly asked her, “What do you want me to do about it? It’s John Burgess.” Similarly, when No. 19 called Bareck to ask why she had been excluded from the Las Vegas trip, Bareck replied, “You know how John is.”
The court concludes that these facts, taken together, are sufficient to construct a minimally “convincing mosaic” from which a jury could conclude that No. 19’s termination was the result of sex discrimination. That is, a rational jury could conclude that No. 19’s termination was motivated *969 not by her alleged tardiness and poor performance, but rather by her refusal to continue having sex with John Burgess.14 Moreover, as the Supreme Court recently observed, 42 U.S.C. § 2000e–2(m) explicitly authorizes discrimination claims under Title VII where an improper consideration was “ ‘a motivating factor’ for an adverse employment action,” even though other, non-discriminatory factors may also have prompted the action. Gross v. FBL Financial Services, Inc., ––– U.S. ––––, 129 S.Ct. 2343, 2349, 174 L.Ed.2d 119 (2009) (distinguishing the Age Discrimination in Employment Act, which requires that improper consideration play a “but-for” role in the adverse action, from Title VII, which requires only that the improper consideration be “a motivating factor.”) As for No. 19’s allegations that she

  

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did not receive commissions to which she was entitled, IPA’s contention that its business records “prove” that No. 19 was never denied commissions also does not support summary judgment. A jury is entitled to discredit IPA’s documentary evidence and believe No. 19’s testimony that she was indeed denied commissions. See Payne v. Pauley, 337 F.3d 767, 774 n. 2 (7th Cir.2003) (jury may credit plaintiff’s testimony that she was detained by police for half an hour over dispatch records indicating police were on scene no longer than six or seven minutes).15 Accordingly, IPA is not entitled to summary judgment on No. 19’s claim that she suffered one or more adverse employment actions based on her sex.16
Based on the foregoing analysis, IPA’s motion for summary judgment of No. 19’s claims is denied.
Claimant No. 23 Claimant No. 23 worked as an outside sales representative from March 15, 2000, to October 17, 2000. Throughout her employment at IPA, she worked out of her home in Lake Zurich, Illinois and rarely visited IPA headquarters in Buffalo Grove. She bases her claim of a hostile work environment on the following allegations:
In the three-and-a-half day training course at the beginning of her employment, a male trainer named Ray made comments “from time to time” about No. 23’s appearance or about sales prospects wanting to date her. Approximately a half dozen times, Ray commented that No. 23 had nice legs and said her suit was sexy. He also told her several times that he thought she was very attractive, and said “oh my goodness, look at her in her red *970 suit.” No. 23 claims that throughout the training, Ray “picked on” her, singling her out with comments such as, “if our analyst spends the whole day flirting with [No. 23] and trying to get a date with [No. 23], he’s not doing his job,” and “some guys may not be paying attention if legs like [No. 23]’s are being shown.” At one point, a male instructor told a story about a female executive who was “propositioned” by a sales prospect, although No. 23 could not recall the details of the story.17 No. 23 also claims that words like “sexy” and “hot babe” were “thrown out” over the course of the training.
No. 23 complained about the trainer’s comments to Don Parks, her regional manager, after the training ended. She told Parks that she was unhappy about the way she had been talked to in the training, to which Parks allegedly replied, “well, look how good looking you are. Can you blame them?”18 No. 23 claims that another trainee in her

sales training, Ted Suss, wrote a letter complaining about how No. 23 was treated during the training. No. 23 states that after showing the letter to No. 23, Suss gave it to John Harper, the IPA employee apparently responsible for the last day of the training. In front of the class, Suss handed Harper the letter and said, “I’ve been very offended about what’s been going on.” Harper looked embarrassed but did not respond to Suss’s comment or to the letter.
No. 23 alleges that throughout her employment, Parks made comments she found inappropriate in both conference calls and one-to-one phone calls she regularly had with him. For example, she claims that on one-to-one calls, Parks said things like, “I’m going to come down there yet and take you out and we’ll go out on the town and we’ll have a great time,” and “you’re one fine looking lady.” No. 23 thought these comments, and the tone of voice in which they were made, were inappropriate because Parks was married. No. 23 claims that on conference calls, Parks said things like, “I’m going to come down, [No. 23], and see you,” and “is that [No. 23] on the phone, you sexy lady.” Parks allegedly made comments about taking No. 23 out more than five times, and he called her a “sexy lady” or “sexy doll” two or three times.
Finally, No. 23 alleges that her job required her to call IPA’s office “all the *971 time” and speak to Keith Link. She claims that Link, whom she met in person on a few occasions, “continuously” made comments on the phone that she found offensive, such as calling her “doll” and “sweetheart,” and saying that he would come over and stay at her house, and that he’d like to take her out.
IPA argues that No. 23’s claim is based on conduct that is insufficiently severe or pervasive as a matter of law. The court disagrees. Although the court has held that conduct alleged to have occurred only during a claimant’s initial training period is insufficient to render her overall working environment hostile,19 No. 23 asserts that she was subjected to offensive comments both during training and on a regular basis throughout her employment. It is true that the tenor of the comments No. 23 asserts is less egregious than that described by certain other claimants, but the comments are not so “tepid, intermittent, or equivocal” as to fall within Title VII’s “safe harbor,” Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998), and she is entitled to have a jury adjudicate her claim. IPA’s motion as to No. 23 is denied.

  

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Claimant No. 27 Claimant No. 27 worked as a business coordinator for approximately two months between May and July of 2001. No. 27 heard about the job through her cousin Phelycia, who began working as a business coordinator at IPA about two weeks before No. 27 did. No. 27 had several different zone managers during her employment, and she claims that she also worked under a man named Garrett, whose position she did not know, but who she believed was hierarchically superior to her immediate supervisors. No. 27 believed that Garrett was a manager at IPA, and that he had the authority to hire and fire people, since she once saw him tell a business coordinator, “go home and don’t come back,” after which No. 27 never saw the business coordinator again.
The first alleged incident of inappropriate conduct was when a male employee known as “Red,” whom No. 27 had seen before at IPA but had never spoken to, grabbed her thigh while she was wearing a skirt and said, “ooh, you got some pretty legs.” No. 27 responded by telling him, “don’t touch my legs.”
On another occasion, a male employee whose name No. 27 does not know, but who she believes was called “Beebos,” hit her on her buttocks. No. 27 told the man, “don’t touch me,” after which he told her repeatedly that she was stuck up. No. 27 reported the buttocks-slapping incident to Garrett, told him she thought it was sexual harassment, and asked him to tell the men to keep their hands off her. Garrett replied that No. 27 could not “file sexual harassment” because the man was not in management.
Garrett’s reply was substantially the same after No. 27 reported a third incident of conduct she found offensive: when No. 27 saw a male coworker named Darnell eating something out of a can, she asked him what he was eating, to which Darnell replied, “[t]una fish.” It’s like eating your pussy.” In addition, Darnell would “always” do “freaky stuff like stick out his tongue at No. 27 and wiggle it in a particular fashion.20 Darnell behaved in this *972 manner both before and after No. 27 complained to Garrett about him.
No. 27 alleges that Garrett himself behaved in a sexually inappropriate way towards her. On one occasion, Garrett said to No. 27 and Phelycia that if they were not cousins, he would “fuck [them] both.” No. 27 told Garrett, “never.” On two or three occasions, Garrett rubbed No. 27’s shoulders, despite the fact that she told him, “don’t do that.”
No. 27 also witnessed other female employees being

touched by male coworkers on their breasts and buttocks. In particular, she recalls seeing a male employee grab the breast of a female employee who No. 27 believed was only sixteen. She also heard male employees “talk nasty” to female coworkers, telling them what they would do to them and “how they’ll fuck ‘em.”
No. 27 states that she left IPA because she “thought [she’d] get raped up there,” and that she quit because of what she felt was sexual harassment.
IPA contends that the foregoing conduct is insufficiently severe or pervasive as a matter of law. This argument is without merit. IPA insists that No. 27 was subjected to no more than two “lewd” comments and isolated, “relatively unobtrusive” physical contact. IPA glosses over the explicit sexual content of the comments, as well as the fact that one of the comments was made by a person No. 27 believed was in a position of authority to respond to sexual harassment complaints, and whose response to her complaints reinforced that belief. In addition, IPA’s characterization of the unwelcome physical contact to which No. 27 was subjected as “relatively unobtrusive” is questionable. The court is not persuaded that thigh-grabbing and buttock-slapping are within the scope of what reasonable people ordinarily expect in their working environment. Finally, IPA makes no mention of the sexual gestures to which No. 27 was repeatedly subjected, nor of the fact that she saw other women being grabbed and slapped by male coworkers and heard men making sexually explicit comments to women. None of the cases cited by IPA addresses harassment that is comparable in its variety and frequency (in relation to the total period of employment) to the conduct No. 27 alleges. A reasonable jury could conclude that No. 23’s workplace was sufficiently severe or pervasive to render her workplace objectively hostile. Accordingly, IPA’s motion for summary judgment of No. 23’s claim is denied.
Claimant No. 34 Claimant No. 34 was employed at IPA from June 7, 2001 through August 20, 2001. She began her tenure at IPA in the advisory & intermediary services (“A & I”) department and was in the inside sales department at the time she left. No. 34 also worked as a business coordinator for one day.
No. 34 states that she began her employment at IPA with a one- or two-day sales training session, which was attended by four women and thirty to forty men. During the training, Brian Rubenstein, the IPA employee who led

  

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the training, used language No. 34 found inappropriate. For example, he used profanity including the “f word,” described IPA as a “balls to the wall” company, made comments about “jerking off” (and then, hearing a gasp from No. 34’s side of the room, continued, “oh, don’t act like you don’t do it too”), and said that “women use their bodies to get ahead in business, and that’s okay.” No. 34 states that the men in the class laughed at these comments. Finally, No. 34 asked Rubenstein, “do you kiss your mother with that mouth?” to which he replied, in front of the class, “your mother didn’t keep you a virgin very long, did she?” No. 34 was “horrified” and “embarrassed” by Rubenstein’s comment. Later, No. 34 spoke to *973 Rubenstein privately, telling him that she thought his comments and behavior were unacceptable, and she asked to speak to someone in human resources. No. 34 claims that Rubenstein told her that she had to “toughen up” and “let things roll off [her] back.” Rubenstein did not tell her whom she could speak to in human resources.
Based on her unsavory training experience with Rubenstein (who she understood was in the inside sales department), No. 34 decided to work in the A & I department because she perceived that department as more “serious.” No. 34 reported to Shane Wetherall in the A & I department. While in A & I, a male coworker named Marlin began to threaten No. 34. Marlin called No. 34 a bitch on several occasions, punched the wall next to her head on one occasion, and told her he was going to “get” her. No. 34 also heard Marlin make comments like, “look at the rack on her,” and “boy, I’d like to get some of that,” in reference to a coworker named Judy. No. 34 reported Marlin’s behavior to Claude, an assistant manager in the A & I department. Claude took No. 34 to see Wetherall, to whom No. 34 complained about Marlin. Wetherall responded that there were “two sides to every story,” which No. 34 took to mean that Wetherall did not believe her complaint. Wetherall moved No. 34 to a different cubicle in the same room, but Marlin still bothered her. No. 34 claims that she was scared of Marlin because he followed her after work on two occasions. No. 34 also heard Marlin say to a male colleague that he would “like to get under [No. 34’s] skirt, and show her who’s boss.” No. 34 complained a second time to Wetherall, who again responded, “there are two sides to every story.” Wetherall suggested No. 34 transfer to the business coordination department, which she did. Marlin remained in A & I.
On No. 34’s first (and only) day as a business coordinator, she saw “pornography pictures all over the place, hanging on cubicles.” She claims to have seen over twenty pictures of women with their breasts and vaginas exposed. No. 34 did not want to work in that environment, so she

went back to Wetherall, who suggested she transfer to the inside sales department.
In the inside sales department, No. 34 sat near Shawn Fishman and Shawn Smoker, whom she overheard talking constantly about “pussy” and “the bitch they got with last night.” No. 34 claims that Fishman and Smoker repeatedly told a story about a party John Burgess took them to in Las Vegas. Highlights of the story, among other distasteful details, were topless stewardesses in Burgess’s private jet and prostitutes Burgess hired for the men.21 No. 34 also claims that on one occasion, Smoker ran his hand up No. 34’s calf and said to Fishman, “who knew [No. 34] had such foxy legs?” On another occasion, No. 34 saw a female colleague get slapped on the buttocks by a male colleague.
No. 34 cried every day when she came home from work, and she finally quit her job at IPA as a result of her coworkers’ conduct.
IPA asserts that No. 34’s allegations describe conduct that is insufficiently severe or pervasive as a matter of law. The court disagrees. IPA disingenuously characterizes her claim as “predominantly based” on Marlin’s conduct.22 In fact, *974 No. 34 describes harassing conduct by various IPA employees in each of her three departments, as well as in the context of her training. Among other factual omissions in its motion, IPA makes no mention of Fishman and Smoker’s audible, ongoing commentary about their sex lives, which featured pejorative, sexually explicit terms for women, or of No. 34’s claim that she witnessed a female colleague get slapped on the buttocks.
The court has no trouble concluding that a jury could find the conduct No. 34 alleges to be severe or pervasive enough to render her workplace objectively hostile, and there is little question that No. 34 subjectively found it to be so. IPA’s cited authorities, Spencer v. Commonwealth Edison, No. 97 C 7718, 1999 WL 14486 (N.D.Ill., Jan. 6, 1999) (Hart, J.), and Alexander v. CIT Technology Financing Services, Inc., 217 F.Supp.2d 867 (N.D.Ill.2002), do not compel a contrary conclusion. The plaintiff in Spencer was employed by the defendant for over twenty years, and it is not clear from the court’s opinion in that case over what period of time the circumstances alleged to have contributed to a hostile environment occurred. In Alexander, the court considered allegations about a handful of remarks that were made to the plaintiff over a period of more than a year and concluded that they were insufficient to support her hostile environment claim. 217 F.Supp.2d at 886. Moreover, neither Spencer nor Alexander addressed allegations of physically threatening behavior at work. In

  

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short, the facts of those cases are materially distinguishable from those at issue here.
For the foregoing reasons, IPA’s motion for summary judgment of No. 34’s claim is denied.
Claimant No. 40 Claimant No. 40 worked as a business coordinator at IPA for approximately two years, from December of 1998 to January of 2001. She claims that after about six months at IPA, her then-zone manager, Dean Kalomiris, asked her if she wanted to do “something more for the company,” telling her that she could “make some more money entertaining” the salesmen who came in. No. 40 felt this request was inappropriate.23 No. 40 claims that after she told Kalomiris that she did not want to do anything “more” for the company than the job she was hired to do, she was called “bitch,” “mother fucker,” and “stupid whore” by five to seven different male employees who she believed were managers. No. 40 alleges that she was called these names “routinely everyday” for a *975 year and a half, until she finally quit her job. No. 40 recalls hearing other female business coordinators being “constantly” called these names, but does not recall hearing male employees get called names, demeaned or sworn at. She explained that “[IPA] management didn’t call them bastards and mother fuckers and stupid son of a bitches or any of that if they wanted to either leave for the day because they had [to] do something for their child or because of something else that was taking place. But if a woman wanted to leave they used all kinds of different thing....”
No. 40 also describes two incidents in which John Burgess called her “bitch” after she greeted him in passing.24 In addition, No. 40 describes seeing a male coworker, Fedel St. James, fondle three separate women on three occasions, one on the leg, one on the buttocks, and one on the breast. Once No. 40 herself had to tell St. James to get back, and to push him away from her four of five times, after he kept “walking up on” her while talking to her. She explained that by “walking up on her,” she meant that St. James was trying to hug her and touch her hand while speaking to her.
No. 40 once saw male employees passing around a Hustler magazine on the business coordination floor. When the magazine was passed in front of her, she saw a picture of a woman whose breasts and vagina were visible.

IPA argues first that No. 40’s allegations are too vague to be actionable and second that the conduct she describes is insufficiently severe or pervasive as a matter of law. Neither argument merits prolonged discussion.
[9] In support of its first argument, IPA asserts that “Claimant No. 40 could not name or identify a single woman she claims was harassed.” (Original italics and underline) This statement is absurd, since No. 40 claims to have been the target herself of the majority of the harassing conduct she alleges. While it is true that No. 40 could not identify by name all of the male employees whose conduct she found offensive, this is not fatal to her claim. See Dey v. Colt Construction, 28 F.3d 1446, 1456–57 (7th Cir.1994). In view of the totality of the conduct No. 40 alleges, a jury could conclude that her working environment was hostile, regardless of whether she can identify by name each of her alleged harassers or each of the women she claims was harassed.
[10] Equally preposterous is IPA’s suggestion that the allegation that No. 40 was routinely called “bitch” and “stupid whore” every day for a year and a half, by multiple male employees, is legally insufficient to state severe or pervasive conduct.25 Indeed, IPA cites no authority for this argument.
For at least these reasons, IPA’s motion for summary judgment of No. 40’s claim is denied.
Claimant No. 41 Claimant No. 41 worked as a business coordinator from January 12, 1998 to February 27, 1998. She claims that on one occasion, her zone manager, Rich Lubicz, called her and a female colleague named Tawanda over to his desk. Lubicz allegedly leaned back in his chair, nodded his head at the women, and commented on their bodies, saying they looked really nice in their black jeans. On another occasion, as she walked by two male colleagues, she heard one comment to another, “she has a nice ass.” No. 41 also heard men comment *976 about other women, “man, she look good” or “damn, she look good,” “man, she’s got a nice body,” “she’s got a nice ass.” She claims to have heard comments about her own body “a couple times a week” and comments about her colleagues’ bodies on a daily basis. No. 41 did not report these comments because she assumed, based on the “working atmosphere”—which she described as “rowdy” and filled with comments such as those she described—her complaint wouldn’t make a difference.

  

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[11] IPA argues that the harassment No. 41 describes is not severe or pervasive as a matter of law. IPA basis this argument on its characterization of No. 41’s claim as based on three specific comments directed at her and “a few other vague comments” directed at No. 41’s coworkers. This mischaracterizes No. 41’s claim. First, although No. 41 remembered three specific comments that were directed at her, she testified that she was the subject of similar comments “a couple times a week.” Second, No. 41 called several specific comments she heard male employees of IPA make about female coworkers, and she testified that she recalled hearing these types of comments on a daily basis. No. 41 need not remember each detail of each comment for her claim to be actionable. As the Seventh Circuit observed in Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1457 (7th Cir.1994), where a claimant alleges a pattern of harassing conduct, she need not recall every instance of harassment with specificity. In this case, not only does the court assume that the EEOC has established a pattern or practice of pervasive harassment at IPA generally, it also interprets No. 41’s allegations of daily exposure to comments about women’s bodies, including her own, coupled with her general description of her working atmosphere, as asserting a pattern or practice to which she was directly exposed.26 That she recalls certain of these comments with specificity, and recalls others with enough specificity to characterize them as similar to the ones she recalls more exactly, is sufficient to withstand summary judgment under Dey. Accordingly, IPA’s motion as to Claimant No. 41 is denied.
Claimant No. 48 [12] Claimant No. 48 worked in IPA’s inside sales department from June 7, 2001 to June 15, 2001. She bases her claim on the following allegations:
• During training at the beginning of her employment, she asked the trainer for an employment verification letter. The trainer asked, “how bad do you need this letter?” When she responded that she needed it badly, he said, “well, why don’t you come and take a ride with me in my car and give me a blowjob?” After No. 48 refused, the trainer told her to go to the human resources department for the letter.
• Also during the training session, No. 48 heard a male employee say to No. 48’s fiancé (also an IPA trainee) that there were some “real nice looking women” at IPA.

• No. 48 witnessed conduct she found inappropriate directed toward a female colleague, [Claimant No. 34]. First, during training, the trainer engaged in an exchange with No. 34 in front of the class, during which the trainer said, “I *977 know that you had sex with your husband before you got married to him.” No. 48 felt “pity” and “more or less hurt” for No. 34, who cried and turned red after her exchange with the trainer. On another occasion, No. 48 heard a male employee tell No. 34 that she should wear heels and a skirt. Finally, No. 48 saw a male employee staring at No. 34 in a manner that suggested he was “taking her clothes off.” The man stared at No. 34 for a minute or two in this manner. No. 48 felt disgusted.
• Once, after No. 48 critiqued a male coworker’s sales style in front of a group, the man replied, “well, you know, [No. 48] ... everybody is not like you. Everybody is not all bitchy ... like they’re on their period.”
IPA argues that the alleged conduct is not severe or pervasive enough to amount to actionable harassment. It is true that No. 48 alleges only a handful of incidents, and that at least one of these (the comment about “real nice looking women”) is too mild to support her claim. Nevertheless, in light of No. 48’s extremely short tenure at IPA, a jury could find that the remaining conduct No. 48 asserts—which included a statement literally inviting No. 48 to perform oral sex27 as well as a comment arguably designed to humiliate No. 48 in front of coworkers by referring pejoratively to her menstrual cycle—was sufficiently severe or pervasive to give rise to an actionable claim. None of the cases cited by IPA addresses conduct alleged to have occurred over such a short period of employment. Of course, any damages to which No. 48 may ultimately be entitled will be commensurate with her short-term exposure to the hostile environment; but the court declines to hold, at this stage, that her entitlement is zero as a matter of law. Accordingly, IPA’s motion for summary judgment of No. 48’s claim is denied.
Claimant No. 62 Claimant No. 62 was a business coordinator at IPA from April 18, 2001 to July 20, 2001, when she was seventeen years old. She claims that over the course of her employment, she was subjected to two instances of unwanted physical touching: once when she was pinched on the buttocks, and turned around to see three male

  

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employees laughing, and another time when a male coworker who was walking past No. 62 while she was seated using the telephone ran his finger along the top of her pants, near her underwear. In addition, No. 62 was subjected to multiple, sexually explicit comments relating to a piercing in her lip. No. 62 explains that while working at IPA, she wore a one-centimeter long “spike” in her lower lip, and that multiple male coworkers, one of whom was the manager of the hybrids department, made comments such as, “doesn’t that stab the guy when you give him a blowjob?” and “doesn’t that hurt when you go down on someone?”
No. 62 claims that she was especially bothered by a particular male coworker, whose name she does not recall, but whom she described in a fairly detailed fashion. According to No. 62, this coworker made the aforementioned comment, “doesn’t that hurt when you go down on someone?” and also told her she must be a “freak” in bed and asked her on two separate occasions when she was going to “hook up” with him. *978 No. 62 responded by telling the man that she was seventeen, and asking him whether that mattered. He replied, “that’s old enough for me.” No. 62 excused herself from the conversations and returned to work. A week later, the same man told No. 62 that she should wear tighter clothes to work because she has a nice body, then said, “them are some nice titties.” After hearing this comment, No. 62 left the room. Shortly thereafter, No. 62 and her friend Ashley complained about this individual to Ray, the assistant zone manager of their zone. In No. 62’s presence, Ashley told Ray, “creepy guys keep harassing or hitting on [No. 62]”. Ray apparently sought no further details, telling No. 62 to “be tough.”
In addition, No. 62 claims that she also saw a male colleague drop pennies down the back of her friend Ashley’s pants so that he could watch her get them out. No. 62 saw Ashley complain to Ray about the pennies, and Ray asked the man to stop, which he apparently did.
[13] IPA argues that these allegations, which it characterizes as “isolated and relatively harmless,” are insufficiently severe or pervasive to be actionable. IPA cites dicta from Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir.2000), in which the court observed that although the unwelcome physical contact alleged in that case (a forcible “French” kiss on the mouth and an attempt to unfasten the plaintiffs bra) was sufficient to withstand summary judgment, less egregious physical acts, such as “a pinch of the buttocks” may be considered insufficiently severe, in isolation, to give rise to an actionable claim. Id. at 808. The Hostetler dicta do not, however, preclude submitting No. 62’s claim to the jury.

First, the “pinch” No. 62 alleges appears to have been designed to embarrass her in front of coworkers. Second, the unwelcome contact No. 62 alleges did not occur “in isolation,” but rather in an environment generally pervaded (the court assumes) with sexual harassment. That several of No. 62’s male colleagues felt free to make sexually explicit comments about No. 62’s piercing,28 and that one also commented upon her “titties” is evidence that No. 62 was directly exposed to IPA’s generally hostile environment.
For the foregoing reasons, IPA’s motion for summary judgment of Claimant No. 62’s claim is denied.
Claimant No. 68 [14] Claimant No. 68 worked at IPA for approximately one week in May of 2001. Despite her short tenure at the company, No. 68 has a lot to say about her experience as an IPA employee. Indeed, her deposition in this case lasted nearly six hours and generated 364 pages of testimony—significantly more than any other claimant whose claims are before the court on summary judgment. Nevertheless, No. 68’s claim ultimately rests upon a narrow scope of allegations. No. 68 claims to have been subjected to two strains of objectionable comments: 1) remarks relating to how women should dress at IPA, and 2) comments referring to No. 68 as a “sad old bitch.” No. 68 describes the comments themselves, the identity of the speakers, and the circumstances in which the comments were made, with varying degrees of clarity and consistency over the course of her deposition. She clearly alleges, however, that the comments she found offensive *979 were made repeatedly, by multiple individuals, throughout her employment. No. 68 also claims to have been subjected to at least one unwelcome stare at her chest and to have witnessed an inappropriate workplace scene involving colleagues. As best the court can ascertain from her meandering, frequently confused, and sometimes inconsistent testimony, the details of her allegations are the following:
During the three-day training that began her employment, No. 68 was told multiple times that if she “wore her tops lower, her skirts shorter and high heels she would get more sales.” She states that two or three unidentified male employees told her this,29 one of whom was a trainer.30 No. 68 asserts that the same individuals also referred to “dressing sexy,” but that she did not find those comments to be offensive or harassing. No. 68 also alleges that another unidentified male employee (or possibly one of the two or three aforementioned employees) said

  

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something that No. 68 could not recall, but that was “in reference to being more polished but then referring to like wearing your clothes tighter.” No. 68 states that she had “no problem” with the comment about wearing a tighter dress, but that “the guy was staring at my chest while he was saying it.”31 She claims that after each incident, she “complained to the person doing the training at the training” that she was “getting inappropriate conversations with the people that are next to me,” referring to her “fellow workers.”32
According to No. 68’s testimony, the “head trainer” described the dress code at IPA as “standard business attire,” but then singled out all but one of the women in the training, including No. 68, and had them stand up, then told them, apparently referring to his earlier statements about wearing lower tops, shorter skirts, and heels, that “if you want to make more money, then you’ll do it,” and “if you want a job here, then you’ll do it.” No. 68 testified that the trainer said this multiple times a day on each of the three days of training. No. 68 told the trainer that “your dress has no relevance on your job performance ... as long as you dress professionally, it doesn’t matter whether you wear a skirt or pants or heels or if you don’t wear heels.” She told the trainer that she would “do what [she] can” and would “look professional at all times.”
*980 No. 68 claims that comments about her attire continued after her training, into the days she worked in the inside sales department. She states that either two or three managers, none of whom was No. 68’s manager, told her that if she wore a lower top, shorter skirts and high heels she would get more sales or make more money or get more leads.33 This comment was made each day No. 68 was in the inside sales department, and each time she complained to her manager. Her manager told her not to pay attention to what anybody says and just make her phone calls so that she could make her quota.
During the time No. 68 worked in inside sales, she was called a “sad old bitch” on four occasions, either behind her back or to her face. On the first and second occasions, No. 68 heard the words “sad old bitch” and turned around to see several managers, none of whom was No. 68’s manager, pointing at her. She then heard them say, “[No. 68] is a sad old bitch.” At the time, No. 68’s manager was seated two chairs away. No. 68 complained to her manager, telling him that she thought she had just been called a sad old bitch. The manager suggested that the comment could have referred to someone outside the room, and No. 68 agreed and “let it go.” Later that same day, No. 68 asked about “what time we would have lunch or, you know, what the lunch break was or if we could get

a bathroom break or whatever,” and in response, a manager (again not No. 68’s manager) responded, out of nowhere, “you know, you’re really a sad old bitch.” The following day, yet another manager (neither No. 68’s manager nor the manager who had called her a sad old bitch the previous day), said to another manager, referring to No. 68 while in her presence, “the sad old bitch over there isn’t getting any sales.” It is not clear what, if anything, No. 68 said anything to the men in response, since she testified, in quick succession, that she “didn’t say anything,” that she “told them that—that the profanity was inappropriate,” and that she was “on the phone with a customer” at the time and said nothing until a minute later (after her phone call ended), at which point she turned her chair around and asked the offending men “why are you picking on me?”
No. 68’s testimony as to whether she complained to her own manager about the last in the series of “sad old bitch” comments is similarly muddled. No. 68 first testified that she did not complain to anyone besides the men who had made the comment. A moment later, she testified that the “tried to complain to [her] row manager,” but the row manager “wouldn’t listen to [her] about anything.” She then stated that she said to her manager, “the guys over there, they’re—they’re profane and they’re—they’re obscene, and it’s inappropriate business behavior ....can you get those guys to cool it on their language?” to which the manager allegedly replied, “it gets hot in the sales environment. They’re just blowing off steam. You have to not get so emotional.” No. 68 states that she then said, “okay, I’ll adapt to the situation.”
Finally, No. 68 claims that she witnessed a scene that took place as a female employee, who No. 68 later found out was named Trinda,34 was taking lunch orders *981 from employees in No. 68’s department. No. 68 claims that she saw two or three or four employees look down Trinda’s cleavage, and that one of them also said “doesn’t she have a nice ass” or “doesn’t she have a really nice body” and patted Trinda on the buttocks. At some point during this incident, one of the men said that Trinda’s skirt was “nice and short” and that she was wearing a nice top and heels.35 The man also grabbed Trinda’s arms. No. 68 claims that Trinda turned red and was shaking and crying. No. 68 heard male employees talking about how Trinda had been raped by “a couple of the guys that worked there.”36
IPA asserts that No. 68’s claims do not allege conduct that is sufficiently severe or pervasive to withstand summary judgment. As the foregoing account of No. 68’s allegations demonstrates, a jury may indeed have difficulty pinning down exactly what was said, by whom, and on how many occasions, and that variations and

  

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inconsistencies in her testimony undermine her credibility. It is not the domain of the court, however, to decide whether No. 68’s allegations are believable. As the court noted at the outset, even the confused portions of No. 68’s testimony clearly allege that in merely a week of employment at IPA, she was subjected to repeated comments linking her potential for success at the company with her willingness to dress in a sexually suggestive manner. These allegations are similar to those raised by No. 37, who claims her supervisor told her, “you know ... if you dressed like that more often you’d get that raise and promotion you were looking for. Otherwise, you’re going to end up staying here forever.” As the court held in denying summary judgment of No. 37’s claim, “a jury could find that No. 37 reasonably believed that her professional success was indeed dependent upon how much of her own body she exposed to her male colleagues, and that the resulting pressure on her constructively changed the terms and conditions of her employment.” To the extent a jury credits No. 68’s testimony about the comments she repeatedly heard, the same is true in this case. Moreover, No. 68 alleges that she witnessed a workplace scene in which a female colleague was praised for complying with the suggested dress code and treated in a manner that reinforced No. 68’s impression that female employees at IPA were valued for their sex appeal. In the context of No. 68’s weeklong employment at IPA, a jury could find the alleged conduct sufficiently severe or pervasive to render her workplace hostile. Accordingly, IPA’s motion for summary judgment of No. 68’s claim is denied.

unidentified number of occasions when he passed her in the hall. This conduct went on for “a week or two” but ultimately stopped. No. 76 states that LA did not ask her out during the last three or four weeks of her employment.
No. 76 also claims that a male manager in the inside sales department whom No. 76 had never met told her that she didn’t “belong” in the business coordination department and mentioned that there might be a position for her in “reception or something available outside of that floor room.” No. 76 said “wow, thank you” and felt really happy because she thought the manager might help her find a position in which she could really use her skills. No. 76 later concluded, however, that the man was only interested in a physical relationship with her, since he gave her his home telephone number, told her about his place downtown, and concluded their conversation by saying, “okay, well, give me a hug” and putting his arms around her. No. 76 claims she felt physically threatened by the hug, since she was afraid that he might want something more from her. Sometime later, the inside sales manager asked No. 76 out for dinner. She said, “I don’t know” then ignored him. No. 76 does not recall having any other interactions of this nature with the inside sales manager.
[15] Finally, No. 76 claims that on one occasion, she witnessed a scene in which a female employee approached Keith Link and asked him for a “tiny, weenie favor.” In reply, Link placed his hands on his genitals and said, “I don’t have a tiny weenie.”

Claimant No. 76 Claimant No. 76 was a business coordinator from September 28, 2000 to November 17, 2000. She claims that a male colleague whom she identifies by the nickname “LA” told her she was very beautiful, asked for her telephone number, and told her that he would “really, really like” to see her after work. No. 76 declined to *982 give LA her number, telling him to give her his number instead. When LA insisted that he wanted her number, she told him, “Well, then forget it. I—I’m not really interested anyway. Just leave me alone.” LA stared at No. 76 for a few moments, then gave up and left. No. 76 reported the incident to her manager, John Greco, who told her that he would take care of it. No. 76 saw Greco push LA into his office and heard the two men yelling, although she does not know about what. The following day, LA asked No. 76 out again, and she again reported him to Greco. LA continued to ask No. 76 out on two or three other occasions and also said “hey beautiful” to her on an
  
  

IPA contends that the foregoing allegations fall short of actionable sex-based harassment. The court agrees. Although LA allegedly asked No. 76 out repeatedly, including after No. 76 complained about his advances to Greco, nothing in LA’s alleged conduct can reasonably be construed as threatening, obscene, humiliating, or sexually suggestive. Moreover, although LA’s advances were repeated, they stopped after one or two weeks, and No. 76 does not claim to have been bothered by him for the remainder of her employment.
[16] Similarly, despite No. 76’s claim that she felt physically threatened when the manager whom she had never met before hugged her, the totality of the contact she describes is not so offensive as to have constructive altered the terms or conditions of her employment. Even assuming that the manager was indeed interested in No. 76 only physically, the conduct she attributes to him (i.e., telling her she didn’t belong in her department, suggesting there may be positions available elsewhere, giving her his home phone number, and asking her out to dinner) is too mild to amount to actionable sexual harassment.
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Indeed, the totality of the harassment No. 76 alleges is less severe than the conduct the Seventh Circuit held to be “merely offensive” in Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534–35 (7th Cir.1993). In Saxton, the court held that although the “uninvited and unwelcome advances” *983 by the plaintiffs supervisor (who rubbed the plaintiffs leg and forcibly kissed her on one occasion and “lurched” at her on a separate occasion) caused the plaintiff “significant discomfort and distress,” the alleged conduct did not support a hostile environment claim because it was “relatively limited, presumably because [the plaintiff] was forthright and persistent in making clear that the advances were unwelcome.” Id. at 534. Similarly in this case, No. 76 clearly and consistently told LA she was not interested, and he ultimately left her alone. Likewise, neither of the two incidents involving the inside sales manager can, standing alone, be characterized as egregious sexual harassment, and even No. 76’s equivocating response to his dinner invitation (“I don’t know”) was apparently sufficient to curtail his unwanted advances. Finally, the incident in which No. 76 claims Keith Link made reference to the size of his own “weenie” is too trivial to contribute meaningfully to an objectively hostile environment. IPA also cites Weiss v. Coca–Cola Bottling Company of Chicago, 990 F.2d 333 (7th Cir.1993) and Howard v. Sheahan, 546 F.Supp.2d 566 (N.D.Ill.2008) as cases in which allegations similar to, or more serious than, No. 76’s were held insufficient to support a hostile environment claim. In Weiss, the court held that plaintiffs allegations that her supervisor told her she was beautiful; repeatedly asked her for dates, despite the fact that she told him she wasn’t interested; jokingly called her a “dumb blond”; put his hand on her shoulder several times; placed “I love you” signs in her work area; and attempted to kiss her once in a bar and twice at the work place did not amount to a hostile environment. 990 F.2d at 334, 337. The Howard court, citing, inter alia, Saxton and Weiss, held that allegations of a supervisor’s repeated requests for dates and comments such as “you are a beautiful woman” and “you are a sexy woman” were insufficient to survive summary judgment. 546 F.Supp.2d at 570, 571. EEOC makes no attempt to distinguish the allegations in these cases from those No. 76 asserts, nor does it cite any authority for its own position. The law of the circuit is clear and dooms No. 76’s claim.

Claimant No. 81 was a business coordinator at IPA from November 12, 1999 to December 10, 1999. She alleges that during that time, Fedel St. James, who she believed was some type of supervisor at IPA, harassed her in the following ways: On one occasion, after No. 81 said “excuse me” upon inadvertently colliding with St. James face-on at work, St. James said, “no, excuse me” in a sexually suggestive manner, then said, referring to No. 81’s breasts, “you got to be more careful with those girls.” On this occasion, St. James also brushed against No. 81’s breasts. On four other occasions, No. 81 observed St. James looking down her shirt at her breasts while speaking to her. No. 81 states that Tanya Thurman, another business coordinator, witnessed most of the foregoing incidents.
No. 81 also alleges that she witnessed sexual harassment of other women at IPA by St. James and other managers. Specifically, she claims that she heard St. James and other managers make “inappropriate sexual comments” to female employees every day, including to women who may have been named Edwina, Ruby, and Josetta or Josita. No. 81 could not recall the content of any of the comments she heard. Once, she saw St. James brush his fingertips against the buttocks of the woman who may have been named Edwina, and another time she saw St. James standing “up on [Edwina’s] leg” in a manner she found *984 inappropriate. No. 81 claims that she also saw about five other instances of “behind touching” between unidentified employees.
No. 81 once overheard a conversation among several male supervisors who were “huddled up talking” about the upcoming IPA Christmas party. She heard the men say that they were going to rent rooms to “get some of these girls to go up there,” and that they were going to “lay it down” and “get so-and-so to suck my dick.” According to No. 81, the men did not know that No. 81 was in the vicinity.
No. 81 claims that during her training, she saw a photograph in the training area of a woman wearing a thong bikini. The woman’s buttocks were exposed, but her vagina and nipples were covered. Although No. 81 testified that she felt the picture “wasn’t right,” she does not claim to have felt “upset” or “degraded” by it.

For the foregoing reasons, IPA’s motion for summary judgment of No. 76’s claim is granted.

Finally, No. 81 witnessed a scene in which a female employee approached her male supervisor and asked if she could get more hours. The supervisor responded with “a joking comment like ... what you going to do for me?”

Claimant No. 81
  
  

[17] IPA argues first that No. 81’s allegations are too vague to support her claim, and second that they depict
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harassment that is insufficiently severe or pervasive as a matter of law. The court agrees that many of No. 81’s allegations are insufficiently precise to allow a jury to determine whether the conduct alleged is actionable. Indeed, the court has previously noted that allegations of comments “of a sexual nature” are, standing alone, too vague to support a hostile environment claim. See, e.g., Claimant No. 37, IPA SJ–II, ––– F.Supp.2d at ––––. EEOC responds that under Dey v. Colt Construction, 28 F.3d 1446, 1456–57 (7th Cir.1994), a claimant is not required to recall each instance of the alleged harassment in detail. Dey is distinguishable from the present case, however. In Dey, although the plaintiff could recall some of her harasser’s inappropriate comments only generally, she remembered others “in some detail,” and she asserted that the ones she remembered generally were similar to the ones she recounted in detail. In this case, by contrast, No. 81 cannot remember a single comment with enough specificity to determine whether any or all of the comments were more like “occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers,” which is generally non-actionable, or more like “uninvited sexual solicitations; intimidating words or acts; [or] obscene language or gestures,” which are generally actionable. Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430–31 (7th Cir.1995) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 61, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Accordingly, despite the fact that No. 81 claims to have heard inappropriate comments on a daily basis (which frequency surely satisfies the pervasiveness threshold on summary judgment), these allegations cannot support her claim because it is impossible to evaluate the potential effect of the comments as she alleges them on a reasonable woman.
No. 81’s remaining allegations, even taken together, do not depict severe or pervasive sexual harassment. The most egregious incident—St. James’s sexually suggestive “excuse me,” coupled with an apparent (though rather odd) reference to, and brief brush against, No. 81’s breasts—falls short of the type of threatening, obscene, or humiliating conduct that would cause a reasonable woman to believe she had been discriminated against based on her sex. See Adusumilli v. City of Chicago, 164 F.3d 353, 361–362 (7th Cir.1998) (ambiguous comments, isolated incidents of touching, and stares at plaintiffs breasts insufficient to support hostile environment claim).
*985 While No. 81 was understandably offended by hearing her male colleagues discuss their plans for sexual adventures at the company Christmas party, her testimony indicates that their conversation was a private one, not directed to, or intended for, anyone other than its participants. No. 81’s allegation can thus be likened to the

plaintiffs complaint in Yuknis v. First Student, Inc., 481 F.3d 552 (7th Cir.2007), that her manager viewed pornography on his office computer. On that issue, the Yuknis court mused, “what if a male coworker is believed ... to be watching pornography on his office computer? It wasn’t any of the plaintiffs business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls or the workplace or emailed to the plaintiff.” Id. at 555. The episode No. 81 describes falls into the category of non-actionable “remarks and behaviors unrelated to the complainant except for [her] having overheard, or heard of, them.” Id. at 556.
For the foregoing reasons, IPA’s motion for summary judgment of No. 81’s claim is granted.
Claimant No. 85 EEOC does not oppose IPA’s motion for summary judgment of Claimant No. 85’s claim. Accordingly, the motion is granted.
Claimant No. 86 [18] The parties dispute the exact duration of No. 86’s employment at IPA, but they appear to agree that she worked there from at least March of 1999 through August of 2000, and that she worked in the inside sales and mergers and acquisitions departments during that time. The court need not recount each of No. 86’s allegations of harassment because a sampling of them is sufficient to demonstrate why IPA’s motion for summary judgment fails.
Tony Jones was No. 86’s immediate supervisor in the inside sales department and was the head of that department. No. 86 alleges that on one occasion at the beginning of her employment, Jones walked into the inside sales department office (in which No. 86 was alone) and said to her, with his fly open and part of his penis exposed, “what do you think of that, [No. 86]?” No. 86 claims that Jones regularly referred to her as a “broad,” using demeaning expressions such as “hit the bricks, broad,” in response to questions No. 86 would ask. No. 86 understood “hit the bricks” to mean “get lost” and understood “broad” as a derogatory name for a woman. Jones said this around twenty times to No. 86, who felt denigrated and disrespected.

  

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No. 86 also claims that she heard a supervisor named Alan call a female switchboard operator “dumb black bitch” or “dumb bitch” on numerous occasions. Although No. 86 heard profanities directed to both men and women at IPA, and that the work environment was denigrating to both men and women, she testified that profanities were used more often with women and that “it was more unpleasant to women.”

motivated by gender and whether it was severe or pervasive enough to cause a reasonable woman to believe she had been discriminated against based on her sex. Accordingly, IPA’s motion for summary judgment of No. 86’s claim is denied.

No. 86 saw female colleagues “pushed into corners by men” where the women’s “escape was blocked.” On one occasion, a woman in inside sales whom No. 86 does not remember by name, but who she recalls was from Kenosha, Wisconsin, in her early 30’s, and had blond hair, was cornered by a man who rubbed his body against her body.

Claimant No. 90 EEOC does not oppose IPA’s motion for summary judgment of Claimant No. 92’s claim. Accordingly, the motion is granted.

IPA argues that the foregoing does not amount to severe or pervasive harassment as a matter of law, and that the alleged harassment was not based on sex. Both arguments are meritless. First, the incident in which Jones exposed himself to No. 86 is arguably egregious enough, even standing alone, to have rendered her work environment objectively hostile. IPA argues that No. 86’s allegations are insufficient *986 even in light of that episode, citing Durkin v. City of Chicago, 199 F.Supp.2d 836 (N.D.Ill.2002) (summary judgment granted on female police recruit’s hostile environment claim, despite allegation that a male classmate exposed his penis to her while urinating and said “suck this”). In Durkin, however, it was not the plaintiff’s supervisor who exposed himself, but rather a classmate in her training class. A jury reasonably could conclude that the impact of having one’s direct supervisor engage in such behavior is more substantial than the effect of the same conduct by one’s peer. Perhaps more importantly, however, the Durkin court noted that the defendant in that case did not dispute that the alleged acts amounted to sexual harassment, and that “the only question” was whether the defendant “was negligent in remedying it.” Id. at 849. By contrast, and as IPA is quick to point out in its responses to the EEOC’s statements of fact, its motion for summary judgment against No. 86 “is not based on whether the Company was negligent in addressing any purported complaints.” (Original emphasis) For at least these reasons, Durkin is inapposite.37
In any event, No. 86’s remaining allegations, in which she describes an environment in which women were name-called more frequently than men, and in which she herself was routinely referred to as a “broad” in her supervisor’s denigrating expressions, are sufficient to raise a triable issue as whether the alleged harassment was
  
  

Claimant No. 92 Claimant No. 92 worked as a business coordinator from November 19, 1999 to December 10, 1999. She alleges the following in support of her hostile environment claim:
No. 92 recalls two or three male business coordinators who made inappropriate comments to her in the break room. For example, the men would comment on her clothing and say they would “sure like to see what was under the clothing.”
On No. 92’s first day of work, a man approached her in the break room, introduced himself, then asked No. 92 on a date. No. 92 declined, telling the man that she was married. The man said “ok” and told her he didn’t know she was married. The next day, however, he again approached No. 92 in the break room and asked her out. When she reminded him that she was married, he asked her whether she wanted to go to bed with him. No. 92 declined, but the man laughed “like it was funny.” The following day, the same man returned with a “sly grin on his face” and asked why No. 92 had turned down his invitation to go to bed with him. When she told him she “didn’t want to do that with [him]” and “didn’t want to have ... any kind of a relationship like that,” he kept smiling and saying “well, if I keep on talking to you ... eventually you’ll give *987 in.” True to his word, the man sat next to No. 92 in the break room the following day. No. 92 got up to leave, but the man told her to sit down and put his hand on her arm “to keep [her] in place.” After this episode, No. 92 reported the man’s conduct to her supervisor, Mr. Gray, although she could not identify the harasser. The man continued to bother No. 92, so she again reported his conduct to Mr. Gray, this time indicating which zone the man worked in and asking Mr. Gray to talk to the man’s supervisor. No. 92 was not
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bothered by the man again.

92’s claims is denied.

Another man, however, whom No. 92 had never met, but who No. 92 later discovered was “buddies” with the first man and worked in his zone, then began to bother No. 92. The second man approached No. 92 in the break room and began to stroke her neck with his fingers. No. 92 told him that she did not like it, but he continued to touch her. No. 92 asked the man to stop, which he ultimately did. No. 92 reported the second man’s conduct to Mr. Gray. The next day, the second man approached No. 92 in the break room, asked why she had reported him, and called her a bitch. The man then said, “[m]y buddy was right. You are a tease. You pretend that you don’t like it but you really like it.” No. 92 asked the man to leave and told him that she didn’t want him to say anything else to her. When he didn’t leave, No. 92 excused herself and tried to return to her area. The man “kept getting in [her] face” and, after blocking her exit with his foot, began fondling her breasts with both hands. When No. 92 tried to push his hands away, he grabbed her wrists and shook her, saying “you know you want this.” No. 92 told him that she did not, and began crying and begging the man to let go. Finally, No. 92 kicked the man in the shin and he let go. No. 92 immediately reported this incident to Mr. Gray, telling him that she had been sexually harassed and explaining the details of the second man’s conduct. Gray said that he would return to the supervisor and ask him to “strongly encourage” the male workers in his zone not to bother the female workers in No. 92’s zone.
Sometime after this incident (how long is unclear), No. 92 quit her job. She told Mr. Gray that it “wasn’t the environment” for her, that she didn’t like the job and didn’t like the experiences she had had with the two men who had harassed her.
IPA moves for summary judgment on the ground that No. 92 alleges conduct that is insufficiently severe or pervasive as a matter of law.38 This argument fails in light of No. 92’s short tenure at IPA—a mere three weeks. Although IPA asserts that a “handful of advances” and “two brief incidents of physical contact” are not actionable under Title VII, none of the cases it cites in support of this argument (Koelsch v. Beltone Electronics Corp., 46 F.3d 705 (7th Cir.1995), Weiss v. Coca–Cola Bottling Company of Chicago, 990 F.2d 333 (7th Cir.1993), and Enriquez v. U.S. Cellular Corp., No 06 C 3135, 2008 WL 4925012 (N.D.Ill., Nov. 14, 2008) (Kendall, J.)), addresses allegations of similar conduct in such a short term of employment. Moreover, the physical contact alleged in IPA’s cited cases is generally less severe than the more aggressive contact alleged by No. 92. Accordingly, IPA’s motion for summary judgment of No.

*988 Claimant No. 97 Claimant No. 97 worked at IPA from July of 2000 at least through the end of October of 2000. She first worked in inside sales and was later transferred to the business coordination department.
As is always the case at summary judgment, the court must accept the EEOC’s version of the facts, provided those facts find some support in the record. With respect to No. 97’s claim, however, summary judgment is inappropriate even on IPA’s version of the facts. By IPA’s own account (undisputed by EEOC), at least five individually identified male employees—Tyler Burgess, “Gordon,” Scott Hanson, Richard Gottlieb, and Tony Jones—as well as multiple, unidentified male employees in the business coordination department, made comments to No. 97 such as, “when are we going to wake up together, so that I can make you breakfast” (Tyler Burgess, repeatedly); “let’s hit the hay,” or “when are we going to hook up?” (Gordon, often); “a woman can’t do this job ... This is a man’s job. A woman doesn’t need to be in here” (Jones and Hanson); “your chest looks great in that outfit” (Gottlieb); “you can’t wear that suit anymore, you are giving everyone in the office a hard on!” (Jones); and “great ass,” “nice tits,” and “can’t wait to get you in the sack” (unidentified male business coordinators, frequently). It is hard to imagine how this array of comments, which encompasses a broad range of sexually offensive and gender-hostile remarks, and which were delivered, sometimes repeatedly, by multiple male employees who held positions that apparently spanned IPA’s hierarchy, could have done other than pervade No. 97’s working environment in the three to fourth months she spent at IPA. None of the cases IPA cites addresses allegations of harassment by so many individuals in such a short period of time. Moreover, No. 97 alleges that she was subjected not only to these comments, but also to daily, unwanted physical contact by Scott Hanson, and that she saw Hanson grab and try to kiss another female IPA employee. The court has no doubt that a jury could conclude, based on the totality of No. 97’s allegations, that her working environment at IPA was subjectively and objectively hostile. Accordingly, IPA’s motion for summary judgment of her claim is denied.

  

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Claimant No. 115 [19] Claimant No. 115 worked as a business coordinator at IPA for two separate periods: first from January 11, 2001 to February 9, 2001, then from September 27, 2001 to October 5, 2001. During her first period of employment, a male colleague asked her whether she had a boyfriend. No. 115 did not find that question offensive. But after No. 115 replied that she did have a boyfriend, the man asked her whether she needed a boyfriend at work. No 115 felt that this second question was “very inappropriate” and made her feel “funny.” The following day, No. 115 walked past the same man at lunch, while the man was seated with three friends. The man said to his friends, loudly enough for No. 115 to hear, “y’ all, that’s gonna be my woman. And she got a big ol’ ass too.” No. 115 heard the men laughing and felt embarrassed. The man also patted No. 115 on the behind as she walked by. At some point, the man said to No. 115, “you know what I’d do to you girl. I’d treat you right.” No. 115 heard the man continue to tell his friends every other day that No. 115 would “be his woman.”
During her second stint at IPA, No. 115 alleges that a second male coworker asked her if she had a man, and she told him that she did. Shortly thereafter, as No. 115 passed by the man in the hallway, he turned to brush the front of his body against No. 115’s rear end, as if he were going to hug her. No. 115 asked the man *989 what his problem was, and he smiled, said she was pretty, and walked away. No. 115 later heard the man tell his friends that No. 115 was mad because he had brushed against her and also heard him say, “she think she all that, that old fat bitch.” No. 115 heard the men laughing.
During both periods of employment at IPA, No. 115 heard people on the business coordinator floor calling women “bitches,” “whores,” and “sluts” every day. Although she heard women call each other bitches, she never heard women call each other whores or sluts. She also witnessed, on seven occasions during her first period of employment and on five occasions during the second period, a man slap a woman on her buttocks.
IPA asserts that the foregoing allegations describe conduct that is insufficiently severe or pervasive to amount to actionable sexual harassment. It is true that all of the comments directed to No. 115, as well as the comments about her but directed to others (though arguably intended for her as well), are seemingly within the realm of relatively mild, non-threatening, non-obscene remarks that although inappropriate, are typically considered to fall short of sexual harassment. And, although No. 115 may have felt “funny” or “embarrassed” by her harassers’ comments, particularly those made in

front of other colleagues, the comments were neither sexually explicit nor particularly humiliating. The first harasser’s reference to No. 115’s “big ol ass” and his “pat” on her buttocks are more serious, but both of those incidents occurred only once. The same can be said of the second harasser’s somewhat ambiguous physical contact and subsequent snide remark.
Nevertheless, although the first harasser’s comments were fairly mild (that No. 115 would “be his woman”), they were repeated every other day of No. 115’s employment. This frequency can reasonably be considered pervasive. Moreover, while not sexually explicit, the first harasser’s persistent comments and conduct, taken together, appear to have been designed to draw the attention of No. 115’s coworkers to No. 115 as the object of his romantic or sexual desires. In addition to the unwanted attention No. 115 (and her buttocks) received, No. 115 claims she saw other women at IPA treated in a fashion that arguably denigrates woman as professionals, either by treating them as available sex objects, or by using sexualized, gender-specific terms of abuse, such as “slut” and “whore.” There is no evidence that No. 115 witnessed male employees, or their bodies, subjected to similar unwanted attention or verbal abuse.
The court is mindful, moreover, that the conduct No. 115 alleges is presumed to have occurred in an environment in which sexual harassment was generally rampant. No. 115’s allegations demonstrate that she was not insulated from exposure to either the widespread, daily use of gender specific terms of abuse such as “bitch,” “slut,” and “whore,” or to harassing workplace conduct such as bottom slapping. IPA argues that No. 115’s inability to identify either the alleged harassers or the alleged victims of the conduct she observed is fatal to her claim. It is true that claimants must generally specify the identity of the harassing party, along with other details. Buttron v. Sheehan, 2003 WL 21801222, *3 (N.D.Ill.2003) (citing Gabrielle M. v. Park Forest–Chicago Heights, Ill. School Dist. 163, 315 F.3d 817, 822 (7th Cir.2003)). In this case, however, sexual harassment is presumed to have been commonplace among IPA’s hundreds or perhaps even thousands of employees, most of whose names may never have been known to short-term employees like No. 115. These circumstances need not prevent a jury from determining that in a generally harassing environment, the cumulative effect *990 of the ongoing comments and occasional physical contact to which No. 115 was exposed and the workplace scenes she witnessed was sufficiently severe or pervasive to alter the terms or conditions of her employment. Accordingly, IPA’s motion for summary judgment of her claim is denied.

  

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Claimant No. 123 Claimant No. 123 is an intervenor in this case and one of the claimants who took her allegations of sexual harassment at IPA to the EEOC, prompting this law suit.
No. 123 worked at IPA from April 1996 to March 3, 1998, first in the inside sales department and then in recruiting, and, for some period of time within that time frame, in both departments.39 Painted in broad brush strokes, No. 123’s claim is similar to that of Claimant No. 19 (another original complainant), and IPA raises many of the same arguments—and presents similar types of evidence—in both summary judgment motions. Like No. 19, No. 123 claims that she had sex with John Burgess, IPA’s managing director, and that her sexual relationship with him was neither welcome nor consensual. Also like No. 19, No. 123 claims that her success at IPA, and the terms and conditions of her employment there, rose and fell with her willingness to submit to Burgess’s advances. As discussed above, No. 19 claims she was terminated shortly after making it clear to Burgess that she would no longer have sex with him; No. 123 claims that she was constructively discharged under the same circumstances.40 The similarities between the two women’s claims do not end there: both women also allege that in addition to having unwelcome sexual intercourse with Burgess on a handful of occasions, Burgess subjected them to ongoing pressure for sex, which took the form of both direct solicitations for sex and suggestive comments that implied the women’s jobs were at stake. Finally, both women claim that Burgess frequently made sexually explicit comments and jokes, especially about oral sex. In particular, both claimants describe specific comments that are variations on the theme that women with “good ankles” are good at oral sex.
IPA moves for summary judgment of No. 123’s claim on many of the same grounds it asserted in its motion against No. 19. Specifically, IPA claims that No. 123 suffered no tangible adverse employment action; that the harassment she alleges is insufficiently severe or pervasive as a matter of law to support a triable hostile work environment claim; and that her claim is time-barred. In addition to these arguments (all of which were raised in its motion as to No. 19), IPA further asserts that No. 123 has not established any nexus between the harassment she alleges and any adverse employment action.41
Again echoing its motion for summary judgment of No. 19’s claim, IPA offers evidence including affidavits or deposition testimony of Shelle Bareck, John Burgess,

*991 and other IPA employees or former employees. An overarching theme of much of this testimony is that not only was No. 123’s relationship with Burgess consensual, but that in fact No. 123 instigated the relationship, which was unwelcome from Burgess’s perspective.42 No. 123 disputes material portions of these affidavits in an affidavit of her own. IPA argues, however, that its evidence demonstrates conclusively that No. 123 was an increasingly poor performer, and that her performance problems—not sexual harassment by Burgess—are what that caused her workplace environment to deteriorate.
Upon review of the parties’ respective submissions, the court concludes that IPA’s motion fails for reasons substantially similar to those discussed in relation to No. 19’s claim. Obviously, the details of the two women’s allegations differ. Nevertheless, the claims are sufficiently similar in material respects to be capable of similar resolution without the need, here, for a drawn-out examination of the factual record or discussion of the legal issues. In short:
• No. 123’s hostile environment claim is not time-barred for the same reasons the court concluded that No. 19’s claim was not barred: Under the continuing violation doctrine set forth in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), a plaintiff may bring a hostile environment claim “so long as an act contributing to that hostile environment takes place within the statutory time period.” As the court explained in relation to No. 19’s claim, the date on which the claimant last had intercourse with Burgess is immaterial, since she claims that Burgess continued to harass her long after the last episode of sexual intercourse.
*992 • Because the continuing violation doctrine allows No. 123 to rely on conduct outside the limitations period in support of her hostile environment claim, IPA’s argument that the alleged harassment is insufficiently severe or pervasive is without merit. Additionally, to the extent IPA argues that Burgess’s conduct does not amount to actionable harassment because No. 123 welcomed their sexual relationship, factual disputes preclude summary judgment of her claim.
• Material factual disputes regarding No. 123’s job performance and the circumstances surrounding her departure from the company preclude summary judgment of her adverse employment action claim. Among these factual disputes are whether Shelle Bareck ever warned No. 123 about her declining performance and whether No. 123 was demoted.

  

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• The court rejects IPA’s argument that it is entitled to summary judgment on that ground that No. 123 cannot demonstrate a causal nexus between harassment by John Burgess and any adverse employment action. The court understands the theory of No. 123’s case to be roughly similar to the theory advanced by No. 19: that “John Burgess exercised an enormous amount of discretionary control over the terms and conditions of [her] employment, and that he exercised his discretion in a way that rewarded her for agreeing to have sex with him and punished her for rebuffing him.” The court acknowledges that the factual record on which No. 123 relies in support of this theory is somewhat more tenuous than in No. 19’s case. It is not so barren, however, as to warrant denying No. 123 the opportunity to have her claim decided by a jury.
For the foregoing reasons, IPA’s motion for summary judgment of No. 123’s claims is denied.
Claimant No. 129 Claimant No. 129 was a business coordinator at IPA for at least three, and possibly as many as five, months in mid–2001. She alleges a potpourri of harassing conduct during that time, which includes both unwelcome physical contact and “raunchy” comments, such as one made by a male colleague, Eugene Edens, who told her, “I want to take you to the Sybaris and strap you on a harness. You can ride me like a pony.” Another male colleague named “Sabot” told her that he would not give her a ride to work unless she showed him her “titties,” and that he was “gonna lay down and I can see up your dress.” No. 129 also alleges that she received phone calls from male colleagues while at work, in which the caller would say, “why do you have meat on your ass and not your chest?” or “I can see you from across the room. Your booty looks luscious.” These examples are not exhaustive of No. 129’s allegations of harassing comments.
No. 129 also describes several incidents of unwelcome physical touching. In the more egregious instance, she describes boarding a public bus at a stop “right outside IPA,” where IPA employees were “the only people that was there.” As she boarded the bus, with four or five men standing behind her, “somebody grabbed [her] from behind underneath [her] butt with the fingers like up [her] crotch.”
[20] IPA asserts that the conduct No. 129 alleges is insufficiently severe or pervasive under the controlling

case law. But none of the cases IPA cites compels that conclusion. Among other differences, the plaintiffs in those cases—Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir.1998); *993 Alexander v. CIT Technology Financing Services, Inc., 217 F.Supp.2d 867 (N.D.Ill.2002); Enriquez v. U.S. Cellular Corp., No. 06 C 3135, 2008 WL 4925012 (N.D.Ill., Nov. 14, 2008) (Kendall, J.)—were employed by the defendants for substantially longer periods than No. 129. As the court has repeatedly noted, this fact is relevant to whether episodic conduct can reasonably be considered pervasive. Moreover, in at least Adusumilli, both the comments and, particularly, the alleged unwelcome physical contact, were considerably less severe than at least one of the episodes No. 129 describes. IPA insists that the incident in which No. 129 was touched on her “crotch” occurred off of IPA’s premises; but it offers no explanation or legal authority on the relevance of this point. Indeed, harassing conduct “need not be committed in the workplace ... to have consequences there.” Doe v. Oberweis Dairy, 456 F.3d 704, 715 (7th Cir.2006). A jury could reasonably conclude that the conduct No. 129 describes, taken together, was severe or pervasive enough to render her workplace environment objectively hostile. IPA’s motion for summary judgment of her claim is denied.
Claimant No. 145 Claimant No. 145’s employment status at IPA is disputed. It is undisputed, however, that she participated in a training session for business analysts at IPA headquarters, which lasted no more than a week. (IPA asserts that the training was only three days, but No. 145 claims that it lasted a week. This dispute is not material to the resolution of IPA’s motion.) It is also undisputed that at the time No. 145 participated in the training, she was a Canadian citizen, lived in Ottawa, Ontario, and would work as a business analyst from her home.
[21] IPA bases its motion for summary judgment, in large part, on the argument that No. 145’s claims are not actionable under Title VII because No. 145 is a non-United States citizen who was employed outside the United States, and that to the extent she was (or would have become) employed as a business analyst after completing her training at IPA, her employer would have been Integrated Business Analysis, Inc., (“IBA”), a Canadian company.
As IPA asserts, Title VII provides that the protections of the statute “shall not apply to an employer with respect to the employment of aliens outside any State,” and also

  

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“shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer.”43 42 U.S.C. § 2000e–1(a); 42 U.S.C. § 2000e–1(c)(2). IPA argues that either of these provisions is sufficient to warrant summary judgment of No. 145’s claim, citing Gantchar v. United Airlines, Inc., No. 93 C 1457, 1995 WL 137053 (Mar. 28, 1995) (Hart, J.), and Iwata v. Stryker Corp., 59 F.Supp.2d 600 (N.D.Tex.1999), in support of the proposition that non-United States citizens working outside the United States are not protected by the statute.
The EEOC’s response is insufficient to demonstrate that the authorities IPA cites do not entitle it to summary judgment based on the factual record here. First, the EEOC acknowledges that No. 145 is a non-United States citizen, and it fails to controvert IPA’s contention that she would be employed in Canada. The EEOC admits that as a business analyst, No. 145 would work “out of her home” in Ontario *994 but argues that “[No. 145] was supposed to be assigned to a territory covering eastern Canada and portions of the northeastern United States, including Maine, Vermont, and New Hampshire.” IPA identifies both factual and legal flaws in the EEOC’s position: first, the assertion that No. 145’s “territory” included parts of the United States is unsupported by any competent evidence; and second, in any event, the “determination of a plaintiffs location of employment for ... Title VII ... purposes focuses on the location of the employee’s primary workstation ” Shekoyan v. Sibley Intern. Corp., 217 F.Supp.2d 59, 68 (D.D.C.2002) (emphasis added), and EEOC does not even contend that No. 145’s “primary workstation” was the United States. Both of these challenges have merit.
As to the evidentiary challenge, IPA points out that the EEOC failed to include the portion of No. 145’s testimony in which it claims she stated that her “territory” was supposed to include parts of the United States. Moreover, even assuming that No. 145 testified as such, the basis for her purported understanding of her “territory” remains a mystery. As the court has previously acknowledged, a claimant’s testimony may suffice to raise a triable issue of fact, even in the face of documentary evidence to the contrary. See e.g., Payne v. Pauley, 337 F.3d 767, 774 n. 2 (7th Cir.2003). Nevertheless, “summary judgment is the ‘put up or shut up’ moment in the lawsuit,” Argyropoulos v. City of Alton, 539 F.3d 724, 737 (7th Cir.2008) (quoting Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.2008)), and No. 145 must demonstrate more than mere speculation about a fact on which her claim relies. On the issue of the country of No. 145’s employment, however, the only undisputed facts are that No. 145 would have worked out of her home

in Canada, and that she completed only Canadian tax forms in conjunction with her employment. Moreover, IPA offers evidence that she applied for insurance coverage through a Canadian insurance company. To controvert these facts, the EEOC offers only No. 145’s unsupported and extremely general testimony that her “territory” would have included, in addition to “eastern Canada,” portions of the northeastern the United States, without any further details (such as how often she was to work in each region). On this record, no reasonable jury could conclude that No. 145’s “primary workstation” was in the United States.
Similarly, although EEOC disputes IPA’s assertion that No. 145 was to be employed by IBA, not IPA, EEOC does not squarely contend that No. 145 was ever in fact employed by IPA. Instead, EEOC argues only that No. 145 “believed that she was employed by IPA.” EEOC cites no authority, however, for the notion that a claimant’s subjective belief about the identity of her employer is relevant to the applicability of Title VII. Moreover, even assuming No. 145’s subjective belief were relevant, the belief she asserts is unreasonable in light of the evidentiary record. To begin with, the employment agreement No. 145 signed in conjunction with her employment as a business analyst identifies IBA as her employer.44 Next, *995 No. 145 admits that she received no wages, nor any type of earnings statement, from IPA. According to No. 145’s own testimony, the only basis for her belief that she was an employee of IPA is that during the training, Shelle Bareck “came into the class and asked us to sign some documents for insurance purposes because she stated that we were already considered employees of IPA.” This testimony is the only evidence the EEOC cites in support of its argument that IPA is liable for sex discrimination under Title VII as No. 145’s employer. It is plainly insufficient to withstand summary judgment.45
For the foregoing reasons, No. 145’s claim falls outside the reach of Title VII, and the court need not address the merits of her claim. IPA’s motion for summary judgment is granted.46
Claimant No. 146 [22] Claimant No. 146 worked at IPA as a business coordinator (according to IPA) and also as an administrative assistant (according to No. 146) for three months from September to December of 2000. No. 146 alleges the following exposure to IPA’s (presumed) pattern or practice of sexual harassment:

  

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• She saw Dan Drugan, the director of sales and marketing, pat a female colleague named Jozetta Rockiett on her behind;
• She witnessed a scene in which either Tony Jones or John Greco, both male managers at IPA, rubbed Rhonda Porter, a female employee, on her behind. Porter responded by throwing papers at the man who rubbed her, after which the man grabbed Porter by her arm and “slung” her against the wall;
• On a separate occasion, No. 146 saw Tony Jones rub his penis against Rhonda Porter’s buttocks. No. 146 said, “why did you do that?” to which Jones replied, “you didn’t see me do nothing.”
• No. 146 heard John Greco tell a female employee named Karen, “[y]our nipples are hard. Am I the one that’s making ‘em hard?” She also heard Greco tell Karen to go to the bathroom and take off her panties, then come back;
• In a separate incident, No. 146 heard a male employee whose name she does not know ask Rhonda Porter if he made her nipples hard;
• No. 146 saw a male employee named Jason grab two female employees on the buttocks;
• No. 146 saw a male employee named Roger Thomas put his hands under a female employee’s dress, provoking a fight. No. 146 could not identify the fondled woman by name, but identified her as the daughter of another employee named Stephanie, who worked with Shelle Bareck.
• On a separate occasion, No. 146 saw a male employee named Jason put his hands up the skirt of a female employee named Charlene Walker. A second male employee, also named Jason, approached and asked, “is there room for me to get under there too?”
*996 No. 146 testified that she never felt physically threatened at IPA, but that she felt “intimidated” and “embarrassed” because of how women were treated there. IPA argues that the conduct No. 146 asserts is insufficiently severe or pervasive to rise to the level of an actionable claim, likening her allegations to those of Claimants Nos. 89 and 99, whose claims the court previously held did not withstand summary judgment. IPA SJ–I at *6–7.

“bitch,” and to have seen pictures of bikini-clad women in male employees’ cubicles. IPA SJ–I at *6. Notably, No. 89 did not claim to have witnessed any unwelcome or offensive physical contact. Although No. 146’s allegations have more in common with certain of those of raised by No. 99, see IPA SJ–I at *7–*9, No. 146’s claim succeeds where No. 99’s failed for several reasons. First, the gravamen of No. 99’s claim was essentially that she believed women who engaged in consensual “sexual shenanigans” at IPA had better working conditions than she herself had. The court noted that even if this were true, male employees at IPA were presumably subject to the same disadvantageous conditions as she, so that the harassment she alleged was not based on her sex.47 Moreover, the most specific of No. 99’s allegations of untoward comments was her testimony about hearing “male bosses” tell “the women” to “suck [their] d-i-c-k-s,” while the remainder of her allegations about offensive verbal conduct referred generically to “sexually-oriented” and “real filthy” comments.48 By contrast, the court understands No. 146’s claim to be based on her impression—arising from the specific instances she relates in some detail—that women at IPA were subjected to sexually humiliating conduct and comments to which male employees were not subjected, and that such behavior rendered the environment at IPA hostile to women employees generally, including No. 146. The court concludes that No. 146’s allegations (excluding certain that are based on rumors and hearsay, which the court intentionally omitted from the factual summary above), taken together, and viewed in light of the court’s presumed finding of a pattern and practice of harassment at IPA, are minimally sufficient to survive summary judgment under Yuknis v. First Student, Inc., 481 F.3d 552 (7th Cir.2007). In particular, No. 146 describes harassing conduct by several male employees and alleges a variety of harassing conduct aimed at a number of different women. A jury could conclude from these allegations that women, as a group, were generally subjected to harassing treatment, and that even if No. 146 herself was not slapped, grabbed, or the object of sexually offensive comments, she was nevertheless in the “target area” of sexual harassment at IPA. Yuknis, at 554 (conduct that makes workplace uncomfortable for women as a group may be actionable). Accordingly, IPA’s motion for summary judgment of No. 146’s claim is denied.

No. 146’s claims are readily distinguishable from those of No. 89, who claimed only to have heard male employees refer to female employees as “honey,” “sweetie,” or

Claimant No. 152 Claimant No. 152 was an employee of Bannockburn Travel from 1998 to 2003. IPA is one of Bannockburn Travel’s corporate *997 clients. The two companies are

  

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not otherwise affiliated; at all relevant times, Bannockburn had its own management distinct and unrelated to IPA’s management, and it was not owned, operated or controlled by IPA or any of IPA’s affiliates or principals. IPA was not responsible for compensating or providing benefits to Bannockburn employees. According to No. 152, seven Bannockburn travel agents, not including No. 152, were regularly staffed onsite at IPA. Of these, six were staffed in the “executive” building, and one was staffed in the “BC” building. All of these agents reported to a Bannockburn manager, whose office was in the larger, “executive” office.
Although No. 152 was not regularly staffed at IPA during her employment at Bannockburn, she filled in at IPA as a “floater” on about fifteen occasions in the approximately one-year period from January 2001 to January 2002. No. 152’s claim arises out of an incident that occurred on January 22, 2002, when she alleges that an employee of IPA, Joe Paxton, touched her breast and made inappropriate, sexually suggestive comments. On the day of the incident, No. 152 sent an email to her manager at Bannockburn, who told her that she should return to Bannockburn’s corporate office, and that someone else would take her place at IPA. No. 152 understood that she would not be required to return to IPA, but she was again sent to work there for one day in early March of 2002. Although she was promised that her office door would be locked, and that Joe Paxton would not be allowed to enter, he did, in fact, enter the office twice during that day, where he gave No. 152 dirty or intimidating looks. Shortly thereafter, No. 152 met with a human resources person for Bannockburn, who gave No. 152 a letter informing her that she would not longer be required to work at IPA. Indeed, No. 152 never returned to IPA.
IPA argues that No. 152’s claim against IPA cannot survive summary judgment for the simple reason that IPA was not her employer. EEOC does not dispute that Bannockburn, and not IPA, was No. 152’s employer. Nevertheless, EEOC claims that IPA should be held liable under a de facto/indirect theory of liability. EEOC cites only one case in support of its argument: Hernandez v. Valet Parking Service, Inc., No. 04 C 7559, 2005 WL 2861054 (N.D.Ill., Oct. 27, 2005) (Der–Yeghiayan, J.) The EEOC’s choice of authority is rather puzzling. While the Hernandez court acknowledged that other courts in this district have, indeed, adopted the “de facto/indirect liability” theory in Title VII cases, id. at *5 (citing Kerr v. WGN Continental Broadcasting Co., 229 F.Supp.2d 880 (N.D.Ill.2002), and EEOC v. Foster Wheeler Const., Inc., No. 98 C 1601, 1999 WL 515524 (N.D.Ill., July 14, 1999) (Coar, J.)), the Hernandez court itself roundly rejected the theory and the reasoning of its sister courts, noting that

“Title VII specifically provide[s] for liability of an employer and make[s] no provisos for other entities that relate to a plaintiff in an indirect manner.” Hernandez at *5. In any event, however, the parties seem to agree that the court must apply a five-factor test to determine whether IPA can be held liable for the harassment No. 152 alleges, which takes account of the following: “(1) the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the work place, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations.” EEOC v. North Knox School Corp., 154 F.3d 744, 747 (7th Cir.1998). *998 The parties also agree that the first factor is the most significant.
[23] The factual record in this case simply does not support the conclusion that IPA exercised the type of control over No. 152 that is required for Title VII liability under the de facto/indirect theory. As the court noted in Kerr, “this theory of liability addresses the situation where a formal employment relationship may be absent, but the putative defendant is so extensively involved with the plaintiff’s day to day employment that the putative defendant is the ‘real’ employer for all intents and purposes, including Title VII liability.” Kerr, 229 F.Supp.2d at 886. In this case, where it is undisputed that No. 152’s ongoing employment relationship was with Bannockburn Travel, and that, but for the approximately fifteen days she spent at IPA in 2001 and 2002, No. 152 spent the entirety of her more-than-four-year tenure with Bannockburn at sites other than IPA, it is well-nigh impossible to imagine that IPA was “so extensively involved with [her] day to day employment” that it could be considered her de facto employer “for all intents and purposes.” Indeed, No. 152 herself acknowledged that even on the days she was on site at IPA, if she had any questions about her assignment or duties, she would contact her superior at Bannockburn. Similarly, she stated that she reported to Bannockburn’s on site manager while working at IPA, and that she did not report Paxton’s harassment to anyone at IPA because “[t]hey are not my employer.”
EEOC argues that “a Bannockburn agent’s employment status could be altered if an IPA employee requested that s/he work or not work at IPA, and that the agent could get fired or demoted based upon an IPA employee’s complaint.” But EEOC has not pointed to any facts that support this conclusory statement. EEOC also argues that IPA should be deemed No. 152’s employer because “the

  

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days and hours worked by the Bannockburn travel agents assigned to IPA were set based upon IPA’s needs,” and because IPA required Bannockburn agents to make IPA reservations in accordance with the “IPA Travel Policy.”49 This is type of control that inheres in many contractual relationships, however, and “is significantly different that the discretionary control an employer daily exercises over its employees’ conduct.” Hojnacki v. Klein–Acosta, 285 F.3d 544, 551 (7th Cir.2002) (quoting North Knox, 154 F.3d at 748) (declining to find employment relationship despite defendant’s control over plaintiffs working hours and requirement that she comply with various policies and procedures).
For the foregoing reasons, IPA’s motion for summary judgment of Claimant No. 152’s claim is granted.

men comment loudly that they liked to “stick their dick into” women in that position, and to “give it to them from the rear.” Dean said, “that’s the way I like it also,” and “I like to have a woman to get down on her knees and give me some head.”
Dean revisited the topic of “head,” either explicitly or implicitly, in other instances: on one occasion, after No. 155 approached Dean with a question about being credited for sales, Dean told her, “well, you know what you got to do, I told you ... I like the women to get on their knees and give me some head .... if you don’t do it like everybody else then you’re not going to make any money.” On subsequent occasions, No. 155 would ask why sales she had made “disappeared” from the board on which they were posted, and he replied, “you know what you got to do. You know why they’re not there, and they’re not going ... back there until you do it.”

Claimant No. 155 [24] Claimant No. 155 worked as a business coordinator for IPA for about six months, from October 1999 to March 2000. Her claim is based on two general categories of allegations: allegations that she earned less money than she was entitled to because she did not submit to her supervisors’ sexual advances and allegations that she heard and saw male IPA employees engage in sexually inappropriate comments and conduct. A short account of her allegations, beginning with the latter category, and not intended to be exhaustive, follows.
For the first several weeks of her employment, No. 155 took public transportation to work, which dropped her off at a location from which an IPA-operated van *999 picked her up and took her to IPA’s premises. One of John Burgess’s sons (possibly Tyler) drove the van, and made constant, sexually explicit remarks to female employees during the ride, such as that he “didn’t care how old women were, he didn’t care what they looked like, but he wanted all of the women ... in that van to ... sit on his face and let him lick their pussy.” Burgess would say that “all the time” in the van, as well as other, similar comments, to the point that No. 155 decided not to take the van anymore. No. 155 also saw Burgess put his hands between a woman’s legs while in the van, then laugh when she pushed his hand away.
A few weeks into her employment, No. 155 saw her supervisor, Dean, viewing and discussing with male business coordinators pictures of naked or partially naked women. No. 155 saw that one of the pictures was of a woman wearing a thong and high heels, viewed from behind with her buttocks spread open. No. 155 heard the
  
  

[25] This brings the court to the second category of No. 155’s allegations: that she did not receive commissions to which she was entitled. EEOC asserts that these allegations support a claim of quid pro quo sexual harassment, since tangible job benefits (i.e., increased pay) were premised on her agreement to give oral sex to her supervisor. IPA calls this claim “absurd” and without factual support, submitting evidence to show that No. 155 was paid in accordance with the terms of her contract. EEOC does not dispute IPA’s factual assertion that No. 155 was paid according to the terms of her employment, but insists that an “alternative compensation scheme” existed at IPA, according to which women who yielded to their supervisors’ advances were better paid than those who did not. IPA derides this theory as pure speculation and argues that the EEOC lacks sufficient evidence of such a scheme to withstand summary judgment, citing Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014, 1036 (7th Cir.2003) (“[b] allegations not supported by specific facts are insufficient in opposing a motion for summary judgment.”) (Modification in original) (Citations omitted). In Hildebrandt, the plaintiff stated in her deposition that she had “generally observed that it takes longer for the support staff to complete her work than it does to complete work for the men.” 347 F.3d 1014 at 1036, n. 15. The court noted, however, that she did not cite any “specific instances of such.” Id. The Hildebrandt court dismissed similarly generic and unsupported allegations, such as that the plaintiff “was not allowed to work with interns as extensively as the men” on the same basis. Id. at n. 17.
By contrast, EEOC’s theory of an “alternative compensation scheme” is not wholly without evidence. EEOC’s best evidence, perhaps, is No. 155’s testimony
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that she personally saw ample checks issued *1000 to a woman whom she often saw “going in the back rooms with different managers,” and leaving in the evenings with male managers including Dean, Rich, Scott, and possibly Keith. The well-paid woman explained to No. 155 and other female employees who asked about her paychecks, “I know what I have to do, so I did it.”50 The EEOC may well have an uphill battle to persuade a jury, based on this evidence, that No. 155 was denied compensation that she would have received if only she had submitted to her supervisor’s advances; but the evidence, though largely circumstantial, is not so flimsy as to be disregarded entirely. Unlike the plaintiff in Hildebrandt, No. 155 cites at least one specific example of a female employee whose paycheck was artificially inflated as a reward for engaging in sex with managers.51 IPA asks, rhetorically, “what proof does the EEOC have to show” that this woman was unfairly compensated? The answer is: No. 155’s account of what she saw and heard: the paycheck, the explanation for it, and—let us not forget—the explicit and implicit remarks by her supervisor that giving “head” was the way to make money at IPA.
No. 155’s allegations are also sufficient to withstand summary judgment of her hostile environment claim. As the court discussed with reference to No. 17’s claim, see IPA SJ–II, 654 F.Supp.2d at 792, a jury could conclude, under the totality of the circumstances presented in this case, that No. 155 reasonably interpreted Dean’s comments as pressure to engage in oral sex with him, and that these comments, coupled with the other sexually offensive and harassing conduct No. 155 describes (only some of which was related above) gave rise to an objectively hostile environment. IPA’s motion for summary judgment of No. 155’s claim is therefore denied.
Claimant No. 161 Claimant No. 161 worked as a business coordinator from August 10, 2000, to February 2, 2001. She testified at her deposition that during her employment, she was aware that a female colleague named Karen had what she believed were consensual relationships with two male managers, Jim Jordan and Dan Drugan. Once, Jordan paid No. 161 and her friend Yvonne Knight (also an IPA employee), to babysit for Karen’s child while Jordan and Karen spent the night out. No. 161 testified that after Jordan’s relationship with Karen ended, Jordan asked No. 161 out on three occasions. The first time, he told her that if she would go out with him, she could have “the things

that Karen had and more.” No. 161 said, “no, thank you,” and Jordan walked away. The second time, Jordan invited No. 161 to the Sybaris hotel to “have some fun.” After she again turned Jordan down, Jordan said, “well just come on over here and just let me rub on your butt.” No. 161 shook her head and walked away. The third time, Jordan did not approach No. 161 directly, but Yvonne Knight told No. 161 that Jim Jordan really wanted No. 161 to go to a hotel with him, and that she should go because if *1001 she did, Knight would get $100. No. 161 told Knight that she would not go out with Jordan.
The remainder of No. 161’s allegations are: that she saw David Soskin hit a female employee named Rhonda Porter on the buttocks twice; that Tony Jones once said to Rhonda Porter, while Porter was sitting next to No. 161, that he “wouldn’t mind having [No. 161] and [Porter] at the same time”; that an employee named Carmello “bumped” No. 161 on the buttocks; and that Carmello also made comments like, “let me rub on your butt” on several occasions as No. 161 walked past him. No. 161 testified that she was not sure whether Carmello’s “bumps” were intentional, and that she ignored his comments and kept walking. In addition, No. 161 claims to have heard about other offensive comments or conduct from other people at IPA. No. 161 testified that the harassment at IPA “bothered [her], but [she] just didn’t pay any attention to it.”
IPA argues that these allegations do not depict actionable harassment. The court agrees. First, nothing about Jordan’s advances, as No. 161 describes them, was particularly intimidating, threatening, sexually explicit, or demeaning. And although Jordan was No. 161’s supervisor, No. 161 does not claim that Jordan made any serious effort to pressure her, for example by suggesting that her job was somehow dependent on her agreeing to go out with him. While No. 161 may have found Jordan’s effort to win her over by bribing her friend offensive and odd, it is apparent that No. 161 effectively rebuffed Jordan’s advances without further incident, and there is no evidence that the effect of his unwelcome attentions on No. 161’s overall working environment was significant. See Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534–35 (7th Cir.1993) (“uninvited and unwelcome advances” by the plaintiffs supervisor—who rubbed the plaintiffs leg and forcibly kissed her on one occasion and “lurched” at her on a separate occasion—did not give rise to hostile environment because the conduct was “relatively limited” due to the plaintiffs unequivocal rejection of the advances). Id. at 534. Moreover, unlike in Saxton, where the court granted summary judgment despite its finding that the supervisor’s conduct caused the plaintiff “significant discomfort and distress,” id., No. 161

  

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testified that she found nothing wrong with the fact that Jordan asked her out three times.
As to No. 161’s remaining allegations, even taken together, they do not amount to conduct that was so severe or pervasive as to cause a reasonable woman to believe she had been discriminated against based on her sex. With respect to this claimant, IPA’s comparison to Weiss v. Coca–Cola Bottling Company of Chicago, 990 F.2d 333 (7th Cir.1993) is apt. In that case, the plaintiffs supervisor repeatedly asked her for dates despite her consistent refusals, attempted to kiss her on multiple occasions, put his hand on her shoulder, called her a “dumb blond” in front of other employees when she made errors at work, placed “I love you” signs in her work area, and gave her unwelcome compliments about her appearance. The Seventh Circuit found this conduct insufficiently severe or pervasive to be actionable. While it is true that No. 161 alleges untoward conduct by several male employees (and not just her supervisor, as in Weiss ) during her approximately six-month tenure at IPA, the majority of that conduct was either not harassment at all (No. 161’s awareness of consensual relationships between coworkers); remote as to No. 161 (the two slaps to Porter’s buttocks); or too isolated or ambiguous to have a severe or persistent negative effect on No. 161’s overall working environment (Jones’s sexually suggestive comment to Porter and Carmello’s attentions to her buttocks). Indeed, from all that No. 161’s testimony *1002 suggests, she brushed off all of these incidents as minor annoyances, and they had no apparent effect on her ability to do her job.
To be sure, isolated incidents of sexually offensive conduct and direct exposure to harassment (even if aimed at others) can, in some circumstances, contribute to an actionable claim. Indeed, the court agrees with EEOC that the harassment No. 161 alleges must be considered in the context of an environment in which pervasive harassment is presumed. The problem with No. 161’s claim is that her testimony does not suggest she was personally exposed, to any significant extent, to the presumed pattern of harassment at IPA. Unlike claimants who allege a handful of specific incidents in a context that also includes daily, gender-specific verbal abuse (see, e.g., Claimant No. 40), or exposure to routine comments about women’s bodies (see, e.g., Claimant No. 41), and unlike claimants whose specific allegations include sexually explicit comments, embarrassing physical contact in front of coworkers, and remarks about sensitive body parts (see, e.g., Claimant No. 62), or suggestions that professional success is linked to sex (see, e.g., Claimant No. 68), No. 161 does not offer sufficient evidence to enable a jury to conclude that the harassment to which she was directly exposed was either

severe or pervasive enough to render her work environment subjectively and objectively hostile. Accordingly, IPA’s motion for summary judgment is granted.
Claimant No. 174 EEOC does not oppose IPA’s motion for summary judgment of Claimant No. 174’s claim. Accordingly, the motion is granted.
Claimant No. 179 Claimant No. 179 worked at IPA for three months, from August to November of 2003, as an outside sales representative out of her home in Pensacola, Florida. Her claim is based on an incident she alleges occurred on a business trip to Macon, Georgia, where she was to receive training from her regional manager, Howard Siegel. No. 179 testified that on the first evening of her trip, Siegel entered her hotel room unexpectedly through a door leading to his adjoining hotel room (which No. 179 apparently believed was locked). Siegel approached No. 179, backed her against a wall, and tried to “push himself on” her, placing his arms against the wall on either side of her while telling her how attractive she was and how unattractive his wife was. No. 179 testified that she became confused and flustered, told Siegel that she was there for work, and told him that he needed to leave the room. She stated that although the encounter probably lasted only about thirty seconds, “it felt like it was forever.”
[26] No. 179 alleges additional conduct by Siegel the following day that need not be enumerated because standing alone, No. 179’s testimony about the above incident is sufficient to withstand summary judgment. A reasonable woman could find that being pinned against a wall by a superior, while unexpectedly alone with him inside a hotel room during a business trip, is a sufficiently intimidating experience to render her work environment hostile. The cases IPA cites, Koelsch v. Beltone Electronics Corp., 46 F.3d 705 (7th Cir.1995), and Paape v. Wall Data, 934 F.Supp. 969 (N.D.Ill.1996), do not compel a contrary conclusion, since the sexual advances alleged in those cases did not occur in a similarly isolated environment, and therefore were arguably less intimidating than the one described here.52 IPA’s motion *1003 for summary judgment of No. 179’s claim is

  

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denied.
Claimant No. 183 Claimant No. 183 worked at IPA for approximately two weeks in March of 2004.53 She alleges that on the first day of her training, and “throughout the whole thing almost,” she saw “how the men were trying to fondle the women.” She heard the women respond with comments such as, “don’t touch me.” No. 183 was herself subjected to unwelcome physical contact during her training when a man in the training “grabbed” her buttocks and told her he could “handle [her] ass.” When No. 183 told the man never to touch her again, he said he wanted to “pat [her] ass.” No. 183 said that the man tried to talk to her again after this incident, but that she ignored him.
No. 183 also alleges that she was exposed to a number of harassing incidents during her short stint on the business coordination floor. On her first day on the floor, a male employee approached her and said, “[D]amn you’re fine. What are you doing tonight?” No. 183 ignored the man. The following day, a different male employee went over to her, touched her hair, told her she had pretty hair, and asked why she didn’t have a man, telling her he would “do [her] right.” A third male employee approached No. 183 the following day and asked her what she was doing that night and whether he could get to know her a little better. No. 183 told him no, but the man continued to talk to her, despite the fact that she was on the phone, and (apparently on one or more other occasions, though the testimony is unclear) tried to talk to No. 183 again, but she ignored him. No. 183 also recounts an incident on the last day of her employment, when a male colleague asked her if she smoked “weed.” When she replied that she did not, he said that she should because it would make her “horny.”
The backdrop for these events, as No. 183 acknowledged, was a generally sexualized environment in which “men and women would hang on each other.” In one instance, No. 183 saw a male employee “rubbing on” a female employee, and heard him say he couldn’t wait to get off work to “attack the pussy.” On another occasion, No. 183 saw a male employee and a female employee kissing and “rubbing on each other.” The man “took her, spread her legs open, and threw her up on top of the desk” in front of everyone on the business coordination floor. When No. 183 complained to her assistant zone manager about their unprofessional behavior, he replied, “well, the day is almost over.”

[27] IPA argues that the conduct No. 183 alleges is insufficiently severe or pervasive to withstand summary judgment. To the contrary, however, the prevailing impression left by No. 183’s testimony is that from the moment she began her training at IPA until the moment she quit her job, she was subjected to a near-constant stream of romantic advances, punctuated with a few incidents of more egregious or explicitly sexualized conduct, including the grab of No. 183’s buttocks (and accompanying suggestive remark), and the workplace scenes of simulated sex. One of the factors the court must consider in evaluating *1004 whether harassment is severe or pervasive is the degree to which it interferes with the plaintiffs ability to perform her job. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir.2000). No. 183 testified that, on at least one occasion, the colleague who approached her for a date persisted, despite the fact that she was on the phone, presumably in execution of her job duties. Indeed, No. 183 testified that the alleged harassment “interrupted” her work and made her feel uncomfortable.
IPA argues that No. 183 alleges only isolated incidents of misconduct, and further complains (without squarely asserting that No. 183’s claim fails for vagueness) that she cannot identify her harassers. The first argument is without merit because taken together, No. 183’s allegations depict a stream of disruptive behavior for the duration of her employment. The conduct may not have been as egregious as that alleged by some other claimants, but the court is persuaded that a jury could reasonably conclude that the conduct was inappropriate and pervasive.
IPA’s complaint that No. 183 cannot identify her harasser is also of no moment. As the court explained in its discussion of IPA’s motion as to Claimant No. 115:
In this case ... sexual harassment is presumed to have been commonplace among IPA’s hundreds or perhaps even thousands of employees, most of whose names may never have been known to short-term employees like No. 115. These circumstances need not prevent a jury from determining that in a generally harassing environment, the cumulative effect of the ongoing comments and occasional physical contact to which No. 115 was exposed and the workplace scenes she witnessed was sufficiently

  

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severe or pervasive to alter the terms or conditions of her employment.
The same reasoning applies to No. 183’s claim. Accordingly, IPA’s motion for summary judgment of No. 183’s claim is denied.
Claimant No. 190 Claimant No. 190 began working at IPA in 1998 and was still employed there as of the date of her deposition, in January of 2005, when she was seventy-six years old. In approximately July of 2003, No. 190 moved first to Los Angeles then to Arizona, and continued to work for IPA out of her home. She testified that she was not sexually harassed after that time. She claims, however, that the years she spent working at IPA’s offices in Buffalo Grove, however, were marked by conduct that she believes (and the EEOC asserts) amount to sexual harassment. Her allegations embrace:
1) Sexually hostile or suggestive comments directed at her (e.g., Scott Hanson called her a “fucking cunt,” and Fedel St. James told her, “you’re a sexy woman and I bet you are good in bed”);
2) Sexually explicit or suggestive comments made directly to her about other women (e.g., on multiple occasions, Larry Edwards pointed out female employees and made comments to No. 190 such as, “she’s hot. She’d be good in bed and I bet she’d give a good blow job.” Edwards would also tell No. 190 that he bought certain female employees clothes so that they would give him blowjobs);
3) Sexually offensive or degrading comments No. 190 overheard (e.g. Dmitri, a manager in the business coordination department, told a woman named Jackie Siegel, “You’re only acting like that because you’re on the rag,” and Dean Kalomiris told Siegel, in front of her colleagues, that she should masturbate if she wasn’t getting sex. No. 190 also heard Keith Link make comments about female employees’ breasts, and she heard Fedel St. James tell Mary Anderson that her legs and *1005 stomach were fat and that she would never get a man);
4) Unwelcome physical contact directed to No. 190 (frequent two-armed embraces by Scott Collins—“[e]very time he saw me he grabbed me. I wouldn’t put my arms around him. He would do it to me.”);

5) Unwelcome or degrading physical contact No. 190 saw other women subjected to (e.g., she saw Scott Collins and David Soskin hit Gloria Levy on the buttocks—Collins with a clipboard and Soskin with his hand—on multiple occasions);
6) Sexually charged or ambiguous workplace scenes witnessed by No. 190 (e.g., she saw a male employee named Jay Rogers “fondle” a female employee named Oksana Ward, and she saw various male employees approach a business coordinator named Renee on a daily basis, telling her, “Dan Drugan wants you and thinks you’re gorgeous”); and
7) Sexually offensive comments and conduct that other female employees reported to No. 190.
IPA argues that No. 190’s allegations describe conduct that is insufficiently severe or pervasive to withstand summary judgment. If the specific incidents identified above were the only basis for No. 190’s claim, IPA might have a leg to stand on, since these individual instances, even taken together, cannot reasonably be considered to have “pervaded” No. 190’s working environment over the course of more than six years of employment, nor is any of them so serious in itself that it could individually render the totality of that time objectively and subjectively hostile. Nevertheless, IPA’s argument falters because although No. 190 specifically described only a handful of instances in many of the categories above, she reiterated throughout her deposition that the type of conduct she alleged occurred routinely, using words such as “constantly,” “everyday,” and “always.” As the court has previously noted, No. 190’s inability to remember or describe each instance of harassment in detail is not fatal to her claim.54 Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1457 (7th Cir.1994) (where a claimant alleges a pattern of harassing conduct, she need not recall every instance of harassment with specificity).
[28] Moreover, IPA’s assertion that No. 190 alleges primarily “second hand harassment” is incorrect. As the Seventh Circuit made clear in Yuknis v. First Student, Inc., 481 F.3d 552 (7th Cir.2007), and as the court has reiterated throughout its analysis here and in its previous summary judgment rulings, although harassment that a claimant hears about through rumor or hearsay, but does not directly witness, may properly be termed “second hand” and is generally non-actionable, id. at 555–556, comments and conduct to which a claimant is directly exposed (i.e., “offense based on hearing or seeing,” id. at 556) may support an actionable claim, regardless of whether the comments or conduct were directed at the

  

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claimant individually. Of the seven categories of allegations enumerated above, only the last is appropriately deemed “second hand” under Yuknis. The allegations in the remaining categories properly support her claim.
For the foregoing reasons, IPA’s motion for summary judgment is denied as to Claimant No. 190.

For the reasons set forth above, IPA’s motions for summary judgment with respect to Claimants Nos. 14, 76, 81, 85, 90, *1006 145, 152, 161, and 174 are granted. IPA’s motions for summary judgment with respect to Claimants Nos. 4, 9, 10, 18, 19, 23, 27, 34, 40, 41, 48, 62, 68, 86, 92, 97, 115, 123, 129, 146, 155, 179, 183, and 190 are denied.

All Citations

CONCLUSION

647 F.Supp.2d 951
  

Footnotes  

  

1  

IPA  also  argues  that  the  objectionable  conduct  was  not  based  on  sex,  referring  to  No.  4’s  allegations  that  her  supervisor  swore  at  

  

her.   The   EEOC   has   stated   that   it   does   not   base   its   claim   on   these   allegations,   so   the   court   need   not   address   whether   they   contribute  to  a  sexually  hostile  environment.  

  

2  

It   is   not   clear   whether   IPA   disputes   that   Hanson   was   in   fact   No.   9’s   supervisor.   IPA   objects   that   the   EEOC   has   presented   no  

  

evidence   that   he   was   her   supervisor.   This   is   inaccurate,   of   course:   No.   9   testified   that   Hanson   was   her   supervisor,   and   it   not   unreasonable   to   assume   that   No.   9   knew   who   her   supervisor   was.   Moreover,   although   IPA   objects   to   EEOC’s   purported   lack   of  

evidence,  IPA  does  not  appear  to  assert  that  Hanson  was  not  No.  9’s  supervisor,  nor  does  IPA  argue  that  Hanson  status  as  No.  9’s  

supervisor  (or  not)  is  material  to  her  claim.  Of  course,  if  the  fact  is  material,  the  dispute  IPA  raises  precludes  summary  judgment.  

  

3  

IPA   has   not   taken   the   position   that   the   EEOC   is   precluded   from   asserting   individual   claims   on   the   theory   that   the   individual  

  

suffered   an   adverse   employment   action.   Indeed,   although   the   parties   have   generally   focused   on   the   hostile   work   environment   theory   throughout   this   litigation,   the   EEOC’s   complaint,   on   its   face,   asserts   both   theories.   Although   “failure   to   promote”   claims  

fall   within   the   realm   of   actionable   adverse   employment   actions,   see,   e.g.,   Jackson   v.   City   of   Chicago,   552   F.3d   619,   622   (7th  

Cir.2009)  (setting  forth  prima  facie  elements  of  failure  to  promote  claim),  if  the  EEOC  intended  to  assert  No.  10’s  claim  based  on  

that   theory,   it   failed   to   develop   this   argument   in   any   meaningful   way.   The   court   thus   assumes   that   EEOC   asserts   only   a   hostile  

environment  claim  on  No.  10’s  behalf.  

  

4  

IPA   argues  that  Bareck’s   alleged   comments  that   No.   10   “had  the   job”   and   would   receive   a   pay  increase   are  hearsay.  Without  

  

resolving  that  issue,  the  court  notes  that  in  any  event,  other  evidence  supports  the  inference  that  No.  10  was  indeed  slated  for   transfer   to   Gottlieb’s   team.   For   example,   No.   10   testified   that   following   her   meeting   with   Bareck   she   attended   a   brainstorming  

meeting  with  Gottlieb  and  his  team,  although  she  was  working  for  Wood  at  the  time.  A  reasonable  inference  from  this  testimony  

is  that  No.  10  “had  the  job”  as  Gottlieb’s  assistant.  IPA  does  not  appear  to  dispute  No.  10’s  claim  that  Gottlieb  was  hierarchically  

superior  to  Wood,  so  it  is  also  reasonable  to  infer  that  the  transfer  would  have  constituted  a  promotion  for  No.  10.  

  

5  

That  the  alleged  brutality  occurred  outside  the  workplace  is  not  dispositive.  See  Doe  v.  Oberweis  Dairy,  456  F.3d  704,  715–16  (7th  

  

Cir.2006).     

6  

It  appears  that  among  the  evidence  on  which  IPA  intends  to  rely  for  this  position  is  evidence  that  No.  19  had  sexual  relationships  

  

with  other  IPA  employees.  EEOC  objects  to  this  evidence  on  the  ground  that  it  is  inadmissible  for  this  purpose  under  Fed.R.Evid.   412.  Rule   412   establishes   a   procedure   for   determining   whether   the  type  of   evidence  IPA  seeks  to   offer  is   admissible,   and   it  is  

premature  to  determine  the  admissibility  of  IPA’s  evidence  at  this  stage.  Fortunately,  the  ultimate  admissibility  of  this  evidence  is  

not  material  to  the  court’s  resolution  of  the  present  motion.  To  the  extent  IPA’s  motion  relies  on  the  factual  finding  that  No.  19’s  

sexual  relationship  with  Burgess  was  consensual,  No.  19’s  testimony  that  it  was  not  is  sufficient  to  raise  a  triable  issue  of  fact.  The  

admissibility  of  IPA’s  evidence  can  thus  be  determined  at  a  later  time,  following  the  procedure  set  forth  in  Rule  412.  

  

7  

There  is  some  discrepancy  in  No.  19’s  testimony  about  the  actual  words  Burgess  used,  as  she  testified  during  her  deposition  that  

Burgess’s   actual   statement   was,   “you   know   what   they   say   about   women   with   nice   ankles,   they   give   good   blowjobs.”   This  

  

33  

  

E.E.O.C.  v.  International  Profit  Associates,  Inc.,  647  F.Supp.2d  951  (2009)  

  

  

  

  

discrepancy  is  immaterial,  since  a  reasonable  conclusion  based  on  the  context  is  that  Burgess  was  referring  to  No.  19  specifically,  

regardless   of   his   exact   turn   of   phrase.   Moreover,   even   if   Burgess   were   not   referring   to   No.   19,   his   statement   could   still   be  

construed  as  sexually  harassing.  

  

8  

The  EEOC  attached  a  copy  of  Bareck’s  letter  to  No.  19’s  declaration.  

  

  

9  

IPA   disputes   No.   19’s   claim   that   she   was   not   paid   commissions,   relying   on   IPA’s   business   records,   and   appears   to   object   to   No.  

  

19’s   reference   to   an   unidentified   report   that   she   claims   support   her   position.   IPA’s   objection   is   noted,   but   a   jury   is   entitled   believe   No.   19’s   testimony  that   she   was  owed   commissions   regardless   of  the   existence   of   any   “report,”   and   to   discredit  IPA’s  

documentary  evidence.  See  Payne  v.  Pauley,  337  F.3d  767,  774  n.  2  (7th  Cir.2003)  (jury  may  credit  plaintiff’s  testimony  that  she  

was   detained   by   police   for   half   an   hour   over   dispatch   records   indicating   police   were   on   scene   no   longer   than   six   or   seven  

minutes).  

  

10   EEOC  acknowledges  that  No.  19  stated,  at  one  point  during  her  deposition,  that  she  last  had  sex  with  Burgess  in  July  of  1997,  but  

  

points  out  that  she  stated  elsewhere  in  her  testimony  that  while  she  was  not  sure  of  the  date  she  last  had  sex  with  Burgess,  she   recalls  that  she  was  “wearing  a  jacket,  so  it  had  to  be  cold,”  and  that  it  was  “before  Christmas”  of  1997.  

  

11   Although  EEOC  filed  only  excerpts  of  claimants’  deposition  transcripts  as  exhibits  in  their  second  round  of  oppositions,  the  court  

  

requested  and  received  the  transcripts  in  their  entirety.  The  transcript  of  No.  19’s  deposition  itself  suggests  that  IPA  intended  to   continue  her  deposition  to  a  second  day,  but  there  is  no  evidence  that  this  occurred,  and  the  court  assumes  that  the  transcript  it  

receive  reflects  the  entirety  of  her  deposition.  The  court  takes  this  opportunity  to  note  that  although  it  reviewed  the  entirety  of  

many   claimants’   deposition   transcripts,   its   consideration   of   any   testimony   not   included   in   the   record   was   immaterial   to   the  

ultimate  resolution  of  the  present  motions.  

  

12   Recall  that  IPA  asserts  the  relationship  was  consensual.  

  

  

13   It  is  not  entirely  clear  from  No.  19’s  testimony  which  “problems”  she  complained  about,  but  she  stated  that  “one  of  the  issues  

  

she  brought  to  [Bareck’s]  attention”  was  that  she  had  not  received  commissions  to  which  she  was  due,  which  she  believed  was   the  result  of  discriminatory  decisions  on  Burgess’s  part.  

  

14   IPA  insists  that  No.  19’s  claim  that  she  was  terminated  because  she  refused  to  continue  having  sex  with  John  Burgess  is  purely  

  

speculative,  and  that  it  is  not  supported  by  any  competent  evidence.  Meanwhile,  however,  the  competency  of  the  evidence  IPA   offers   in   support   of   its   own   version   of   No.   19’s   termination   is   at   times   questionable.   For   example,   IPA   relies   on   the   affidavit   of  

Valerie  Ramsdell,  who  states,  among  other  things,  that  her  “gut  feeling”  is  that  No.  19’s  claim  is  frivolous,  that  “if  you  only  knew  

[No.  19],  you  would  know  she  is  not  very  hard  working,”  and  that  No.  19  “enjoys  socializing  much  more  than  working.”  Ramsdell  

further  asserts  that  “Mr.  Burgess  finds  it  very  difficult  to  refuse  a  request  for  help.”  The  evidentiary  value  of  such  statements  is  

obviously  limited.  

  

15   This   is   true   regardless   of   the  existence   or   contents   of  the   “collection   report”  to  which   the  EEOC   refers   in   support   of  No.   19’s  

  

claim.     

16   As  for  whether  No.  19  suffered  a  material  adverse  employment  action  when  she  was  “uninvited”  to  the  Las  Vegas  trip,  the  court  

  

tends  to  agree  with  IPA  that  this  is  the  type  of  discretionary  decision  that,  although  it  made  No.  19  unhappy,  did  not  amount  to  a   material   change   in   the   terms   and   conditions   of   her   employment.   See   Murray   v.   Chicago   Transit   Authority,   252   F.3d   880   (7th  

Cir.2001)  (supervisor’s  refusal  to  approve  employee’s  travel  plans  after  she  rejected  his  dinner  invitation  not  actionable  adverse  

action).   Of   course,   No.   19   remains   free   to   assert   her   allegations   relating   to   the   Las   Vegas   trip   in   support   of   her   hostile  

environment  claim.  

  

17   It  is  not  clear  from  No.  23’s  testimony  whether  she  has  any  independent  recollection  of  the  alleged  story  at  all,  as  her  testimony  

  

is  muddled  and  relies  heavily  on  a  document  apparently  created  by  a  male  trainee  in  her  training  class  named  Ted  Suss.  No.  23   stated,  “I  recall  several  stories  in  this  tone  throughout,”  but  could  not  remember  the  specific  story  referred  to  in  Suss’s  document  

and   could   not   remember   whether   the   “proposition”   mentioned   was   for   sex,   dating,   or   something   romantic,   as   opposed   to   a  

business  proposition.  EEOC  asserts  that  “the  conversation  was  focused  on  the  woman’s  appearance,  build  and  sexiness,”  but  No.  

23   did   not   recall  those  details.   Indeed,   she   stated,   “I   really   think   if   you   want   to   know   this   exact  thing,  Ted   Suss   could   answer  

that.”   In   response   to   additional   questions   about  the   story,  No.   23   stated,   “I  do  not   exactly   recall.  I   am   looking   at   what   you’re  

looking  at”  and  that  she  was  “guesstimating”  about  who  participated  in  the  story.  

  

34  

  

E.E.O.C.  v.  International  Profit  Associates,  Inc.,  647  F.Supp.2d  951  (2009)  

  

  

  

  

18   IPA’s  “objection”  to  this  statement  in  its  L.R.  56.1  responses  is  not  well  taken.  IPA  complains  that  the  statement  is  “irrelevant”  to  

  

IPA’s   motion,   since   the   motion   challenges   only   the   severity   or   pervasiveness   of   the   alleged   conduct,   not   the   issue   of   IPA’s   negligence   in   addressing   complaints.   First,   the   proper   place   for   asserting   legal   arguments   such   as   relevance   is   in   legal  

memoranda,  not  in  L.R.  56.1  filings.  Second,  IPA  made  a  point  of  underscoring  that  No.  23  did  not  report  certain  of  the  comments  

she   found   inappropriate   during   her   employment.   Presumably,   IPA   thought   the   issue   of   reporting   was   relevant   to   its   motion   in  

some  way,  and  the  EEOC  is  entitled  to  respond  by  pointing  out  that  No.  23  did,  in  fact,  report  certain  conduct.  

  

19   See  discussion  of  Claimant  No.  39  in  IPA  SJ–II,  654  F.Supp.2d  at  796–97.  The  court’s  analysis  in  this  respect  assumes,  of  course,  

  

that  employment  continued  for  some  reasonable  period  without  significant  further  incident  after  the  training  was  completed.     

20   The  manner  in  which  Darnell  wiggled  his  tongue  was  apparently  captured  on  video  during  the  deposition  but  was  not  described  

  

in  detail.  The  context  allows  the  court  to  assume,  however,  that  it  was  a  sexually  suggestive  gesture.     

21   IPA  disputes  this  statement  on  the  ground  that  it  is  based  on  inadmissible  hearsay.  This  objection  is  without  merit.  The  point  is  

  

not   whether  the   story  is   true,   but   whether  the   impact   on  No.   34   of   its   telling   and   retelling   at   the   workplace   is   such   as   would   render  her  working  environment  hostile.  

  

22   Equally  disingenuous  is  IPA’s  assertion  that  Marlin’s  threatening  conduct  occurred  in  the  course  of  an  “argument”  with  No.  34.  

  

No.   34   makes   no   reference   to   any   argument.   The   testimony   IPA   cites   in   support   of   its   assertion   reads:   “Q:   What   do   you   mean   threatened?   A.   He   punched   a   wall   next   to   my   head.   And   he   told   me   that—I’m   paraphrasing,   because   I   don’t   remember   exactly  

what  he—what  he  said.  But  he  was  calling  me  names  and  telling  me  that  I—and  he  was  going  to  get  me.  Stuff  like  that.  I  don’t  

even   remember   why.”   IPA   further   mischaracterizes   No.   34’s   testimony   when   it   asserts   that   “[a]l   of   these   alleged   incidents  

[relating   to   Marlin]   occurred   during   the   first   week   of   her   employment.”   This   assertion   is   based   on   the   following   testimony:   “Q.  

Now  you  said  during  the  first  week  when  you  started  in  A  &  I,  this  Marlin  made  these  threatening  comments  to  you?  A.  Yes.  He  

had  started  being  very  belligerent  and—[testimony  interrupted  by  attorney  for  IPA].”  The  only  conclusion  that  can  reasonably  be  

drawn  form  No.  34’s  aborted  testimony  is  that  Marlin’s  threatening  behavior  began  during  No.  34’s  first  week.  

  

23   It   appears   from   her   deposition   transcript   that   No.   40   began   to   explain   what   she   understood   the   request   to   mean,   but   her  

  

testimony  was  cut  off  by  questioning:  “A:  He  asked  me  would  I  like  to  do  something  more  for  the  company  and  pretty  much  he   was  saying—Q:  And  you  said—A:—that—Q:—what?  A:  No.”  IPA’s  complaint  that  No.  40’s  allegations  are  insufficiently  precise  is  

not  well  taken  where  its  counsel’s  questioning  appears  to  have  thwarted  her  attempt  to  clarify  her  meaning.  

  

24   IPA  disputes  that  these  incidents  occurred,  which  of  course  gets  IPA  nowhere  on  summary  judgment.  

  

  

25   IPA  does  not  contend  that  this  harassment  was  not  sex-­‐based.  

  

  

26   Despite   IPA’s   insistence   that   No.   41   merely   “overheard”   many   of   those   comments,   her   exposure   to   these   comments   may  

  

appropriately   be   construed   as   “direct”   under   Yuknis   v.   First   Student,   Inc.,   481   F.3d   552,   555–56   (7th   Cir.2007)   (contrasting   non-­‐actionable,   “second   hand”   claims   based   “purely   on   hearsay   or   rumor”   with   actionable   claims   based   on   “hearing   or   seeing”  

allegedly  offensive  conduct).  

  

27   IPA  underscores  the  fact  that  after  No.  48  turned  down  the  invitation,  the  trainer  directed  her  to  human  resources,  where  she  

  

obtained   the   necessary   letter.  While   it   is  possible   that  the  trainer’s  comment   was   merely   a   crude   joke,   rather   than   a  genuine   solicitation  for  sex,  a  jury  could  conclude  that  its  impact  on  No.  48—who  was  new  to  the  job  and  arguably  ill-­‐positioned  at  that  

point  to  gauge  the  seriousness  of  the  suggestion—was  substantial.  

  

28   At   least   one   other   court   in   this   district   has   held   that   similar   comments   contributed   to   an   environment   that   a   jury   could   find  

  

objectively  hostile.  Valadez  v.  Uncle  Julio’s  of  Illinois,  Inc.,  895  F.Supp.  1008,  1011  (N.D.Ill.1995)  (male  coworker  “told  plaintiff  in   vulgar  terms  that  he  thought  the  reason  that  she  got  her  tongue  pierced  was  so  that  she  could  have  better  oral  sex”).  

  

29   Sometimes  No.  68  states  that  three  men  made  this  comment  in  the  training  room  (e.g.,  141:23–142:2),  and  sometimes  she  says  

  

that  two  did  (128:9–11,  140:2–4),  and  that  a  third  said  something  different  (128:13–16).  Unless  otherwise  noted,  all  references  in   this   section   refer   to   No.   68’s   deposition   transcript,   cited   portions   of   which   were   attached   as   Exh.   14   to   EEOC’s   combined  

response  to  IPA’s  summary  judgment  motions.  

  

  

35  

  

E.E.O.C.  v.  International  Profit  Associates,  Inc.,  647  F.Supp.2d  951  (2009)  

  

  

  

30   Because   the   court   must   interpret   all   evidence   in   the   light   most   favorable   to   the   EEOC,   the   court   assumes   that   one   of   the  

  

referenced  individuals  was  a  trainer,  although  No.  68  first  testified  that  she  could  not  distinguish  trainers  from  co-­‐trainees  among   the   men   who   made  these   comments  in  the   training   room,  then  testified   that  the   men   who   made   the   comments   were  fellow  

trainees,  then  said  she  thought  one  of  the  men  was  a  trainer,  then  affirmed  that  he  was  indeed  a  trainer.  

  

31   Elsewhere  in  her  testimony,  No.  68  stated  that  the  man  or  men  who  told  her  to  wear  her  tops  lower,  skirts  shorter  and  high  heels  

  

also  stared  at  her  chest,  and  that  it  was  the  staring  that  made  the  comment  objectionable  to  her.     

32   She  later  testified  that  she  did  not  know  whether  the  people  next  to  her  were  trainers  or  trainees.  She  further  testified  that  she  

  

“tried  to”  complain  about  the  trainer’s  comments  to  “the  other  people  that  came  in  to  cross-­‐train  ...  [a]nybody  that  came  in  any   time   anything   occurred”  (142:24–143:6),   but  it   does   not   appear  that   she   did,  in  fact,   complain   about   the  trainer’s   comments,  

other  than  to  the  trainer  himself.  

  

33   No.  68  initially  testified  that  three  managers  made  these  comments  (136:9),  but  stated  shortly  thereafter  that  two  managers  and  

  

one  person  whose  position  she  did  not  know  made  them  (140:10–13).     

34   No.  68  usually  refers  to  the  woman  as  “Trina,”  and  recalls  her  last  name  as  “Hedrickson,”  “Hendricks,”  or  “Hendrickson,”  while  

  

IPA   refers   to   “Trinda”   and   “Ms.   Heinrich.”   IPA   appears   to   acknowledge   that   No.   68   was   referring   to   an   IPA   employee   named   Trinda  Heinrich.  

  

35   No.  68’s  account  of  additional  comments  made  during  this  episode,  of  comments  No.  68  herself  made  after  witnessing  the  scene,  

  

and   of   the   reactions   of   the   individuals   involved   is   so   hopelessly   confused   that   the   court   excludes   these   allegations   from   consideration.  

  

36   IPA’s  objection  to  this  allegation  as  hearsay  is  meritless,  since  it  is  not  being  offered  for  the  truth  of  whether  Heinrich  was  in  fact  

  

raped.  The  statement  is  admissible  to  show  that  No.  68  was  exposed  to  a  sexualized  work  environment,  as  well  as  to  substantiate   her   claim   that   she  found   the   environment   intimidating.  Nevertheless,   this   statement  ultimately   does   little   to   support   No.   68’s  

claim.   See   Yuknis   v.   First   Student,   Inc.,   481   F.3d   552,   554   (7th   Cir.2007)   (offense   based   purely   on   hearsay   or   rumor   generally  

insufficient  to  support  a  claim).  

  

37   The   Durkin   court’s   dictum   observing   that   the   defendant   could   also   have   prevailed   on   summary   judgment   on   the   basis,   not  

  

asserted   in   that   case,   that   the   alleged   indecent   exposure   was   insufficiently   severe,   standing   alone,   to   constitute   sexual   harassment,   199   F.Supp.2d   at   851,   is   unpersuasive   in   this   factually   distinct   case.   As   noted,   it   was   No.   86’s   direct   supervisor,  

whom  she  was  routinely  in  contact  with,  who  exposed  himself  to  her.  Jones  v.  Clinton,  990  F.Supp.  657,  675–76  (E.D.Ark.1998),  

which  Durkin  cites  in  support  of  its  dictum,  and  which  IPA  references  in  its  reply,  is  likewise  distinguishable  on  its  facts.  

  

38   Although  IPA  argues,  in  reply,  that  No.  92’s  failure  to  identify  the  two  men  she  claims  harassed  her  prevented  any  meaningful  

  

opportunity  for  IPA  to  investigate  her  claims,  the  court  does  not  understand  IPA’s  motion  to  be  based  on  the  argument  that  the   company  took  adequate  steps  to  address  the  problem.  

  

39   No.  123  asserts  that  she  also  worked  for  American  Mortgage  Co.,  a  company  apparently  affiliated  with  IPA,  for  some  time  during  

  

this  period,  but  the  parties  have  not  given  any  indication  that  this  fact  is  material  to  IPA’s  motion.     

40   No.  123  at  times  appears  to  argue  that  she  was  actually  terminated,  but  she  ultimately  identifies  constructive  discharge  as  the  

  

theory  underlying  her  claim.     

41   In   its   reply  brief,  IPA   also   argues  that  No.   123’s   constructive   discharge   claim  is   barred  because   the  EEOC  found   no   reasonable  

  

cause  for  that  claim.  Whatever  the  merits  of  this  argument,  IPA  did  not  raise  it  in  its  opening  brief,  and  “arguments  raised  for  the   first  time  in  a  reply  brief  are  waived.”  Amerson  v.  Farrey,  492  F.3d  848,  852  (7th  Cir.2007).  

  

42   In  its  L.R.  56.1  responses,  IPA  disputes  No.  123’s  factual  statement  that  her  relationship  with  Burgess  was  not  welcome.  Although  

  

IPA   does   not   squarely   argue   that   it   is   entitled   to   summary   judgment   on   this   basis   (an   ill-­‐advised   argument   indeed,   since   welcomeness   is   a   factual   dispute   that   a   jury   must   decide,   see,   e.g.,   Doe   v.   Oberweis   Dairy,   456   F.3d   704,   713   (7th   Cir.2006)),   it  

teeters   on   the   brink   of   this   position   by   folding   the   issue   into   its   argument   that   No.   123’s   claim   is   legally   insufficient.   Indeed,  

portions  of  the  evidence  on  which  IPA  rests  its  motion  strikes  the  court  as  similarly  ill-­‐considered.  Naturally,  IPA  is  entitled,  and,  

indeed,  expected  to  submit  evidence  in  support  of  its  factual  contentions.  Nevertheless,  because  much  of  the  evidence  offered  in  

support  of  IPA’s  motion  (and  not  merely  to  rebut  plaintiffs  asserted  facts)  focuses  on  No.  123’s  conduct,  and  appears  designed  to  

  

36  

  

E.E.O.C.  v.  International  Profit  Associates,  Inc.,  647  F.Supp.2d  951  (2009)  

  

  

  

attack  her  credibility  on  welcomeness  and  other  factual  issues,  it  appears  to  undermine  IPA’s  summary  judgment  position  at  least  

as   readily   as   it   supports   it.   For   example,   in   an   affidavit   in   support   of   IPA’s   motion,   Shelle   Bareck   spends   several   paragraphs  

describing   unflattering   anecdotes   and   comments   No.   123   allegedly   made   about   men   during   her   employment   at   IPA.   Bareck  

further   states   that   John   Burgess   “told   [her]   that   he   was   not   interested   in   [No.   123’s]   advances,   that   he   was   shocked   by   her  

behavior,  and  that,  in  fact,  did  not  even  consider  [No.  123]  attractive.”  Bareck  continues,  “[t]o  put  this  in  perspective,  let  me  say  

that  [No.  123],  at  that  time,  was  going  on  45  years  of  age  and  she  had  deep  wrinkles  in  the  sides  of  her  face,  and  she  had  a  bad  

back   and   foot   problems,   and   she   appeared   to   be   going   through   a   mid-­‐life   crisis   ....   By   way   of   contrast,   John   Burgess   is   a  

well-­‐educated  gentleman  and  has  a  wife  who  was  then  27  years  of  age  and  very  beautiful  and  charming  and  well-­‐spoken.”  Given  

that  IPA  does  not  dispute  that  Burgess  and  No.  123  had  sexual  relations,  the  relevance  of  such  statements  is  at  best  questionable.  

Moreover,  much  of  Bareck’s  testimony  is  clearly  hearsay  and  likely  inadmissible.  The  obvious  problems  with  evidence  such  as  this  

leave   the   court   with   the   distinct   impression   that   IPA’s   purpose   was   to   obscure   the   relevant   legal   questions   with   colorfully  

contrasting  portraits   of   the   individuals   involved.  This   approach   only   complicates  the  court’s   task,   and  the   court  does   not   look  

kindly  on  it.  

  

43   In  passing,  the  court  notes  that  the  second  of  these  provisions  appears  to  leave  open  the  possibility  that  IBA  may  be  considered  

  

an   employer   covered   by   the   statute   if   it   is   controlled   by   IPA.   While   it   is   perhaps   suspicious   that   IPA   omitted   the   words   “not   controlled  by  an  American  employer”  from  its  citation  to  this  provision,  EEOC  does  not  raise  this  point  or  submit  any  evidence  to  

dispute  IPA’s  position.  

  

44   This  document,  on  its  face,  does  not  identify  the  citizenship  of  the  company.  It  is  not  clear  whether  EEOC  disputes  that  IBA  is,  

  

indeed,   a   Canadian   company,   or  whether   it   disputes   only   that  that   company   was   No.   145’s   employer.   In   any   event,  however,   while  there  is  perhaps  room  for  “metaphysical  doubt”  about  the  citizenship  of  IBA,  the  record  as  a  whole  reasonably  supports  the  

conclusion   that   it   is,   indeed,   a   Canadian   company,   and   EEOC   has   not   introduced   any   evidence   to   the   contrary.   See   Matsushita  

Elec.  Indus.  Co.  v.  Zenith  Radio  Corp.,  475  U.S.  574,  586,  106  S.Ct.  1348,  89  L.Ed.2d  538  (1986)  (non-­‐moving  party  must  do  more  

than  show  some  “metaphysical  doubt”  as  to  the  material  facts).  

  

45   Among   other   problems,   IPA   offered   evidence   that   the   referenced   “insurance   forms”   were,   in   No.   145’s   case,   for   coverage  

  

through  Great–West  Life,  a  Canadian  insurance  company,  for  coverage  in  Canada.     

46   In  conjunction  with  its  opposition  to  IPA’s  previous  round  of  summary  judgment  motions,  the  EEOC  moved  to  strike  the  affidavit  

  

of   Larry   Lang.  The   court  denied   that   motion   as   moot,  without   adjudicating   its   merits,   since   it   resolved  the  first   set   of   motions   without   reliance   on   the   Lang   affidavit.   Although   the   EEOC   did   not   renew   its   motion   to   strike   in   conjunction   with   the   present  

round   of   motions,   the   court   wishes   to   clarify   that   it   has   resolved   these   motions,   including   the   motion   as   to   No.   145’s   claim,  

without  reliance  on  the  Lang  affidavit.  

  

47   The  analysis  is  distinct  here,  since  No.  146’s  claim  is  based  on  her  offense  at  witnessing  degrading  or  humiliating  sexual  behavior,  

  

not  on  the  theory  that  she  received  less  favorable  treatment  than  women  who  consented  to  sexual  behavior.     

48   These  specific  allegations  were  not  discussed  in  the  court’s  decision  in  IPA  SJ–I,  but  they  were  part  of  the  record  that  the  court  

  

considered  in  granting  summary  judgment  of  No.  99’s  claim.     

49   IPA  denies  that  any  such  policy  exists,  but  this  dispute  is  irrelevant  to  the  court’s  ruling  on  this  motion.  

  

  

50   IPA  did  not  object  to  the  court’s  consideration  of  this  statement  based  on  hearsay  in  its  L.R.  56.1  responses.  

  

  

51   As  the  court  has  previously  observed,  male  employees  would  presumably  be  “equally  disadvantaged  if  the  male  IPA  managers  

  

were  favoring  their  young  female  paramours,”  see  Claimant  No.  99,  IPA  SJ–I  at  *6,  but  the  analysis  here  is  somewhat  different.   Unlike  No.  99,  who  was  not  personally  solicited  for  sex,  and  whose  claim  therefore  depended  on  a  finding  that  she  was  within  the  

“target  area”  of  sex-­‐based  harassment,  Claimant  No.  155  was  directly  solicited  for  sex  and  refused  her  manager’s  advances.  The  

evidence  EEOC  cites  provides  some  support  to  No.  155’s  claim  that  she  was  punished  for  not  submitting  to  those  advances.  

  

52   DiCenso  v.  Cisneros,  96  F.3d  1004  (7th  Cir.1996),  a  housing  discrimination  case  in  which  the  court’s  description  of  the  plaintiff’s  

  

allegations   does   not   suggest   any   circumstances   that   would   have   rendered   the   defendant’s   behavior   particularly   intimidating,   is   likewise  inapposite.  

  

  

37  

  

E.E.O.C.  v.  International  Profit  Associates,  Inc.,  647  F.Supp.2d  951  (2009)  

  

  

  

53   According  to  her  testimony,  she  worked  there  for  only  a  week,  of  which  two  days  were  spent  in  training,  and  three  days  were  

  

spent   on   the   business   coordination   floor.   But   because   EEOC   does   not   dispute   IPA’s   assertion   that   No.   183   worked   at   IPA   from   March  11,  2004  through  March  26,  2004,  the  court  relies  on  these  dates,  rather  than  on  No.  183’s  testimony.  

  

54   In  passing,  the  court  notes  that  the  examples  set  forth  above  are  not  exhaustive  of  the  specific  incidents  No.  190  recounted.  

  

  

  

  

  

  

  

  

  

38  

  

 </s> Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 1 of 8 PageID #:1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JUDGE ANDERSEN

PHYLLIS LOPEZ,

)

MAGISrMTE JUDGE

)

GERALDINE SOAT BROWN

Plaintiff,

)

Civil Action No.

)

vs.

~02C 4281

INTERNATIONAL PROFIT ASSOCIATES, INC. )

)

0,....,

Defendant.

)

COMPLAINT

Plaintiff, PHYLLIS LOPEZ, states as follows:

Jurisdiction and Venue

1. This is an action for relief to redress the deprivation of Plaintiffs rights secured by

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

2. This Court has jurisdiction of this action under 28 U.S.C. § 2000e-5(f)(3).

3. Venueisproperpursuantto28U.S.C. § 1391(a).

Parties

4. Plaintiff, PHYLLIS LOPEZ is a female citizen of the United States and Illinois.

At all times relevant herein, Plaintiff has resided in the district of this Court. Plaintiff was an

employee of the Defendant INTERNATIONAL PROFIT ASSOCIATES, INC. ("IPA") from on

or about August 16,2001 until on or about September 25,2001, when she was constructively

discharged.

5. Defendant IPA is an Illinois business entity. Defendant is and was at all relevant

times herein, an "employer" within the meaning of Title VII, 42 U.S.C. § 2000e(b). ·

Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 2 of 8 PageID #:2
t\
Administrative Procedure
6. On or about March II, 2002, and within 300 days of the last act of discrimination,
Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity
Commission ("EEOC"), a copy of which is attached as Exhibit "A" to this Complaint.
7. On or about March 28,2002, a "Notice of Right to Sue" was issued from the
District Office of the EEOC for the charge of discrimination (a copy of which is attached to this
Complaint as Exhibit "B"), entitling Plaintiff to institute a civil action in the appropriate Federal
District Court within 90 days ofthe date of receipt of the notice. The notice was received by
Plaintiff on April I, 2002.
8. Plaintiffs last position with IPA was as a file clerk/secretary. 9. At all relevant times, plaintiff performed her employment duties in a satisfactory
manner.
I0. Shortly after she began working at IPA, and continuing throughout her
employment with IPA, plaintiff was sexually harassed and sexually discriminated against by
management, supervisors and employees ofiPA. This unlawful discrimination and harassment
included, but was not limited to the following:
a. Being approached by John Greco, Gordon Gurney and Joe Woods, supervisors at IPA, and being told by them that she must have sex with Dan Druggan, the Director of Sales for IPA. She was told that she was doing well at IPA, and that if she wanted to continue to do well, she would do what she was told. Further, money was offered to her if she had sex with Dan Druggan, and a job promotion was promised. Plaintiff was also told that if she did not "give in" her job would be on the line. Also, when the men approached her, they would say disgusting things of a sexual nature, such as "go suck Druggan's dick.";
b. After the men listed above approached plaintiff and made their demands, and the demands were refused as they always were, they would then yell at plaintiff and swear at her for not giving in to the demands by saying such
2

Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 3 of 8 PageID #:3
things as "what the fuck is wrong with you...?;
c. Mr. Woods grabbing plaintiff after making the demands listed in subsection a;
d. Dan Druggan, Director of Sales for IPA, directly approaching her and demanding sex; and
e. Being approached by a co-worker at the request of management and/or supervisors of IPA, and being asked if she would take money in exchange for not telling anyone about the events listed in sub-sections a-d.
II. The acts alleged above were directed to plaintiff because she is female, and the
acts created a hostile work environment. 12. As a result of the hostile work environment, it was impossible for plaintiff to
continue to work at IPA, and she left IPA, being constructively discharged on or about September
25,2001. 13. IPA supervisory and management level personnel had knowledge of each and
every act alleged above, and did nothing to remedy the situation and as a result, the acts of sexual
harassment and sexual discrimination continued throughout plaintiffs employment with IPA.
Due to defendant's discriminatory behavior, plaintiff has suffered monetary damage and
emotional pain and suffering.
WHEREFORE, Plaintiff, PHYLLIS LOPEZ, prays that this court enter judgement in her
favor and against Defendant, INTERNATIONAL PROFIT ASSOCIATES, INC. as follows:
a. That a finding be entered that Defendant violated Title VII by sexually discriminating against Plaintiff;
b. That Plaintiff be awarded the maximum monetary damages available; c. That Plaintiff be awarded all wages, benefits and other compensation due
to her being constructively discharged by IPA; d. That Plaintiff be awarded punitive damages; e. That Plaintiff be awarded reasonable attorney's fees and costs; and f. That Plaintiff be awarded such other relief as this court deems proper.
3

Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 4 of 8 PageID #:4 Respectfully submitted,
ROSS J. PETERS The Law Offices of Ross J. Peters & Associates, Ltd. 33 North County Street- Suite 402 Waukegan, Illinois 60085 Telephone: (847) 625-1854 Facsimile: (847) 625-0282 Attorney Number: 03126326
4

Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 5 of 8 PageID #:5

----

Th£s for• 1s affected cotaolettn·a thts for~~o.

by

CHARGE;-:::; DISCRIMINATION
the Prtvacy A~. of 101•: See Pr£vacy Act Stataaent

11<GENCY

/'"'.1 tletor~ .£1·
1

FEPA r,.eoc

CHARGE NUIIBER
?toA20:21 17

~ .....

and EEOC

Statt or local Art"")\ ifany

NA"E (JntJze•t.r'lt.r., Ns., Jlr$.)

HOllE TELEPHONE f.lnt:lutlt: Al"t• CDt1tJ

MS. PHYLLIS LOPEZ

STREET ADDRESS
7439 N. WINCHESTER ST.

CJT'c' 1 STAT£ AND ZlP COOE
CHICAGO. IL. 60651

I~;E, ;~ ;~?~

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP.COMUITTEE
:J ' STATE OR LOCAL GOVERNMENT AGENCY WHO OISCRII&INATEO AGAINST I.IE ar-"" UutJ 010e ll•t IH:Jo..

I NA"E
INTERNATIONL PROFIT ASSOCTll'I'RC::

NUIIBER OF UPLOYEES' IIEIIBERS
~01

I STREET AOORESS

CITY, STATE ANO ZIP CODE

rELEPHONE f.rDCJude A,... Code)
800-531-9585
COUNTY

1250 BARCLAY BLVD.

BUFFALO

TT. e;nn<>o

097

NA&l£
STnEET ADDRESS

CITY, STATE AND ZJP COOE

TELEPHONE NUIIBER (JntJudt: Al"t• Codt:)

, ___
········· ... -~ '

I - .. ··-· ... . . COUNTY

CAUSE Of. OlSCRllllNATiON BASED ON (Cbet:k •ppropr~•t.t bcx(t4))

.

.. . OATE ·DISCRIIIINATION T.Q.OK PLACE

DRACE

OcoLOR

:£ij SEX

0 RETAliATION 0AGE

0

.. .

....

-··· .

· 0 REliGION

0 NATIONAl OR_IGI.~ . .

DISABiliTY 0 OTHER (~~U.rJ

-···

EAI<LJEST

LATEST

08}16J01

09f25f01

0 . CON.T.I II.U. ING •.ACTI..O.H.

THE PARTICULARS ARE (Jr•d~lt.lon•J •P•tr 14 ~d~d. •ct.•ch ezt.r• •he~'fsJJ:

I.

I started working at IPA on August 16, 200I.

II. Almost immediately after I started working, supervisors, Joe Wood, John Greco and Gordon

Gurnee approached me on behalf of President Dan Druggan and told meto have sex with him.

This happened to me constantly while I worked at IPA. Money was offered to me if 1 had sex·

with Mr. Druggan, and a job promotion was promised.

III. Each time I was approached, I told the three (3) individuals that their app"iiiacheswere

unwelcome. On one occasion, Mr. Wood actually grabbed m~ right ann. All ofthemen would

yell at me and swear at me for not giving in.

..

IV. When the men approached me they said disgusting things of a sexual nature...

v.

I was told that ifl did not "give in" my job would be on the line.

VI. Although I complained to the appropriate supervisory and management personnel, nothing_was.

done. In fact, the Human Relations Department tried to cover up what was going on. I was even

offered money by the Human Relations Department. The owner of the company, a Mr. Burgess

wouldn't even see me.

..

VII. It should be noted that Dan Druggan himself also directly approached me for sex. . . VIII. . I was also approached by a co-worker and asked ifl would uike money in.e"X.change for not

telling anyone about what had transpired.

IX. I wish to note that what happened at IPA has had a terrible effect on my life.

x.

-, I believe that I
in violation of

have Title

been discriminated against because
VII of the 1964 Civil Rights Act as

of my sex Amended.

and that
1.··'
' ' •

this
-

d~-.i·.s: -.cri..m•... i.n. ation

is

I

M~P I I 2002 '

l
I

., r:J I want tnls Charge f1led wlth ootn the EEOC ana.the State 01 NOTARY • (When necnsarr tor Sta_t.,e. and t.ocal Requu..ent~

local AQeney, 11 anr. 1 will adv1st the agenctes 11 I cnange cy address or telephone nuaoer and cooperate fully wlth them ln the
I nrocnunn of •v cnarne in accordance with thelr orocedures.

1 swear or aff11""11 that 1 have read tl!.e ·aAP·ve cnarge .and t.nat 1t 1s true to t.he best 01 •y knowledge, ~n1o~t1on and·Del1ef.

J cseclare under penalty of perJury that the toreg01ng 1S true and correct.
Exhibit "A"

~::!BED ~~RE SIGN~~ AND, SWORN

OJ..·J-602
LIE THIS DATE

(O.ay, aonth, and year)

'at~

-·-··-
Charo1 nQ Party f~:,:netl.lrc:-1

Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 6 of 8 PageID #:6

EQUA;: _MPLOYMENT OPPORTUNITY COMM 'ION
NOTICE OF RIGHT TO SUE
(Issued on request)

APR J 1 2u\J2
II 1\. 7t...:JU u t...:JI

To: Phyllis Lopez

From: Equal Employment O-p-p-o--rt-u-n-i-t-y---------

c/o Ross J. Peters, Esq.

Commission

33 North County Street, Suite 402

500 West Madison Street

Waukegan, IL 60085

Suite 2800

Chicago, Illinois 60661

Certified No.: 7099 3400 0006 7301 6124

DOn behalf of a person aggrieved whose identity is confidential (29 C.F.R. 1601. 7(a))

Charge Number

EEOC Representative

Telephone Number

210A202117

Andrew Daley, Investigator

(31 2) 886-7495

{See the additional information attached to this form.)
TO THE PERSON AGGRIEVED: This is your NOTICE OF RIGHT TO SUE. It is issued at your request. If you intend to sue the respondent(s) named in you charge, YOU MUST DO SO WITHIN NINETY (90) DAYS OF YOUR RECEIPT OF THIS NOTICE: OTHERWISE YOUR RIGHT TO SUE IS LOST.

More than 180 days have expired since the filing of this charge.

X

Less than 180 days have expired since the filing of this ch8rQe, but I haVe determined ·that the commission will be unable to

complete its process within 180 days from the filing of-the charge. -~ ·

-

X

With the issuance of this NOTICE OF RIGHT TO SUE, the Commission is terminating its process with respect to this charge.

It has been determined that the Commission will continue to investigate your charge.

ADEA: While Title VII and the ADA require EEOC to issue this notice of right to sue before you can bring a lawsuit you may sue - - - - - - under the Age Discrimination in Employment Act (ADEA) any time 60 days after your charge was filed until 90 days after you
received notice that EEOC has completed action on your charge.
Because EEOC is closing your case, your lawsuit under the ADEA must be brought within 90 days of your receipt of this notice. Otherwise, your right to sue is lost.
EEOC is continuing its investigation. You will be notified when we have completed action and, if our notice will include notice of right to sue under the ADEA.
EPA: While Title VII and the ADA require EEOC to issue this Notice of Right to Sue before ·you can bring a lawsuit you already have the right to sue under the Equal Pay Act (EPA). (You are not required to complain to any enforcement agency before bringing and EPA suit in court). EPA suits must be brought within 2 ye~rs (3 years for willful violations) of the alleged EPA underpayment.
On Behalf of the Commission

Date

Enclosures Information Sheet Copy of Charge
cc: Respondent(s)

Exhibit "B" International Profit Associates

Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 7 of 8 PageID #:7

JS 44 (Rev. 12/96)

~
CtfJ CIVIL COVER SHEET

The JS-44 civil cover sheet a

·

· n contained herein neither replace nor supplement the filing and service of pleadings or other papers as require

by law. except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for 1he us

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

0 2c 4 2 8 l.(a) PLAINTIFFS PHYLLIS LOPEZ

JUDGE ANDERSEN DEFENDANTS
INTERNATIONAL PROFIT ASSOCIJI. TES, IN::

(b) COUNTY OF RESIDENCE OF FIRST USTED PLAINTIFF

COOK

(EXCEPT IN U.S. PLAINTIFF CASES)

MAGISTRATE JUDGE

"_, .:" , •r.:

BROWN

(C) p e t e r ATIORNEYS (FIRM NAME. ADDRESS. AND TELEPHONE NUMBER) R OS S

The Law Offices of Ross J. Peters & Assoc

33 North County St. - Suite 402
Waukegan, Il. 60085 I 847-625-1854

fr\ COUNTY
NOTE:

OFITNRREALSACIDNTEDNOCCFEOD~O~\F(I~NNF~QIRN/US~~T..-S:rL.fI~SlP.TO?ELN~DA.~IDpNCE,TFAhEISF.NEFDSAC,NATUSSEE'-·u~)~~N_ ~L~YL>)OC<~ :A--.-~. N

-n
;:::
O.~!'H' E

W,c

.,./,

, .,._.,

;:::::::'

ATTORNEYS (IF KNOWN)

II. BASIS OF JURISDICTION

(PLACE AN "X" IN ONE BOX ONLY)

o 1 U.S. Government
Plaintiff

£"Federal Question
(U.S. Government Not a Party)

Ill. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN ·x·1N ONE BOX FOR Pl.AlNTIF

(For Diversity Cases Only)

AND ONE BOX FOR DEFENDANT)

Citizen of This State

PTF DEF

PTF liEF

01 01 Incorporated or Principal Place o 4 o 4

of Business In This State

o 2 U.S. Government
Defendant

04 Diversity (Indicate Citizenship of Parties in Item Ill)

Citizen of Another State o 2 02
Citizen or Subject of a o 3 o 3
Foreign Country

Incorporated and Principal Place 0 s 0 s of Business In Another State

Foreign Nation

06 06

IV. ORIGIN

(PLACE AN 'X" IN ONE BOX ONLY)

~ginal

o 2 Removed from o 3 Remanded from o 4 Reinstated or

Transferred from
o 5 another district

Proceeding

State Court

Appellate Court

Reopened

(specify)

.V NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY)

o 6 Multidistrict
Litigation

Appeal to Dislric
Jud~e frcJm
o 1 Magistrate
Judgment

CONTRACT

TORTS

FORFEITURE/PENALTY BANKRUPTCY

OTHER STATUTES

D 110 Insurance
D 120 Marine
D 130 Miller Act
D 140 Negotiable Instrument
0 150 Recovery of Overr;:yment
& Enforcement o Judgment
0 151 Medicare Act 0 152 Recovery of Defaulted
Student loans (ExcL Veterans)
0 153 Recovery of Overpayment
of Veteran·s Benellis
0 160 Stockholders'Suits 0 190 Other Contract 0 195 Contract Product Liability
REAL PROPERTY
0 210 Land Condemnation 0 220 Foreclosure 0 230 Rent Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property

PERSONAL INJURY
0 310 Airplane 0 315 Airplane Product
Liability
0 320 Assault. Libel &
Slander
0 330 Federal Employers·
Liability
D 340 Marine D 345 Marine Product
Liability
D 350 Motor Vehicle
D 355 Motor Vehicle Product Liability
0 360 Other Personal injury

PERSONAL INJURY D 362 Personal Injury -
Med Malpractice
0 365 Personalln]u~ -
PrOduct uaou ty
0 368 Asbestos Personal
Injury Product Liability
PERSONAL PROPERTY
0 370 Other Fraud
D 371 Truth in Lending
0 380 Other Personal
Property Damage
0 385 Property Damage
Product Liability

CIVIL RIGHTS PRISONER PETITIONS

0 441 Voting
$4'42 Employment
0 443 Housing/
Accommodations
0 444 Welfare 0 440 other C!vll Rights

0 610 Motion to Vacate sentence Haboa• Corpua:
D 530 General D 535 Death Penalty D 540 Mandamus & Othef D 550 Civl Rights D 555 Prison Condition

D 610 Agriculture
0 620 other Food & Drug 0 625 Drug Related Seizure
of Property 21 USC 881
0 630 Liquor Laws 0 640 A.R. & Truck 0 650 Airline Regs 0 660 Occupational
Safety/Health
0 690 Other
LABOR
0 710 Fair Labor Standards
Aol
0 720 Labor/Mgmt Relations
D 730 Labor/Mgmt. Reponing & Disclosure Act
0 740 Railway Labor Act
0 790 other Labor Litigation
0 791 Empl. Ret. !nc.
Security Act

0 422 Appeal28 USC 158
0 423 Withdrawal
28 usc 157
PROPERTY RIGHTS
0 620 Copyrights 0 630 Patent 0 840 Trademark
SOCIAL SECURITY
0 861 HIA (1395ft) 0 862 Black Lung (923) 0 863 DIWC/DIWW (405(g)) 0 864 SSID Title XVI 0 865 ASI (405(g))
FEDERAL TAX SUITS
0 870 Taxes (U.S Plaintiff
or Defendant)
0 871 !AS - Third Party
26 usc 7609

D 400 State Reapportionment
0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce/ICC Rates/etc. 0 460 Deportation 0 470 Racketeer Influenced and
Corrupt Organizations
0 810 Selective service 0 850 Securities/Commodities/
Exchange
0 875 Customer Challenge
12 usc 3410
0 891 Agricultural Acts 0 892 Eco11omic Stabilization Act 0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom of
Information Act
0 900 Appeal of Fee Determination
Under Equal Access to JusUol
0 950 Constitutionality of
State Statutes
0 890 other Sta1utOJY Actions

VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FlUNG AND WAITE BRIEF STATEMENT OF CAUSE
DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.)

VII. REQUESTED IN

CHECK IF THIS IS A CLASS ACTION

COMPLAINT

D 1JNDER F.R.C.P. 23

DEMAND$

CHECK YES only ~demanded in complaint

JURY DEMAND: - ~ IES

0 NO

VIII.

This case

.~not a refiling of a previously dismissed action.

D is a refiling of case number

previously dismissed by Judge _ _ _ _ _ __

I

Case: 1:02-cv-04281 Document #: 1 Filed: 06/17/02 Page 8 of 8 PageID #:8

UNITED SHfTESDISTRICTCOURT

NORTHERN DISTRICT OF ILLINOIS

JUDGE ANDEi\SEN

PHYLLIS LOPEZ, PLAINTIFF

In the Matter of

vs.
INTERNATIONAL PROFIT ASSOCIATES,

IVi,.\GISTri;\TE JUDGE Gb1/\LDINE SOAT BROWN INC.

~- (11 ltIi'A/iq.,/'(,'~c,Ip'-·;'~,;;;_p·•__Ce;..>,;a__.,.s, ~e}_'N~ {J,-e~ ~t,t'.·"., V

4~ 2 8' ·t·'

JUN '"-II t,/!J

APPEARANCES ARE HEREBY FILED BY THE uNb~A~/~ED AS ATrORNEY(S) FOR:

PHYLLIS LOPEZ

(A)
SIG.liPJI'!]R~
--- c)f 'l
-",o?s . --. / R s J. fEYi(Rs

-

SIGNAT1JAE IIAME

Frne Law CJ!fices of Ross J. Peters FIRM

& Associi'lt"s T.trl

STREET AOORESS
33 North County Street-Ste. 402

STREET AOOAESS

(B)
.(f)
--
U>, -',-
0?-
---{ ~~

CITY/STATEJ21P
Waukegan, Il.
TELEPHONE NUMBER
847-625-1854
IOENTIFICATION NUMIIEA (
03126326
MEME!EA OF TA(AI. BAR?

60085
4 ON H~YI:I<S~i
0 YI:S

D NO

CfTYfSTATE/ZtP

0

~

TELEPHONE NUMBER

:::<

IU~A•I ICA1 ION NUMSEA (SEE ITEM 4 ON "~'~"S~l

MEMBER OF TRIAL BAR?

0 YI:S

l'PAA.L AITORNEY?

0 YI:S

NO 0

i"RALArTORNE;In

0 fES

CESIGNA TED AS LOCAL COU~EL?

ves 0

0

- c:C-

"<)

-·-1 Pt-:li

:::o-•
-<"":

~ •

,;:,,

'!?

0

NOO NOD NOD

(C)
SIGNATURE NAME F!AM STREET AOORESS CiTY/SlATE/ZIP

(D)
SlGIIAT1JAE ""'"E !=!AM STREET AOORESS CITY/STATEi-<IP

TELEPHONE NUMSER

TELEPHONE NUMSER

lQENTifiCATION NUMBER {SEE ITEM 4o ON RE\IERSE)

t0ENT1F1CAT10N NUMBER \SEE !TE.\it 4 ON Rt:vERSt:J

MEMSER OF TR(AI. BAR? mAL AITORNE'Y? OESIONA TEO AS LOCAl COUNSEL?

0 YI:S 0 YI:S 0 YI:S

NOD I
NOD
NOD

MEMSER OF TRIAL BAR? TRAL A TTORNEY7 CESICNA TEO AS LOCAl COUNSEl?

O YES
0 YES
O YES

NOO NOD NOO

-.
I PLEASE COMP LETE IN ACCORDANCE WITH INSTRUCTIONS CN RE'JERSE. ___.--'/...

 </s> Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 1 of 66
DENLOW,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:01−cv−04427

EEOC v. Intl Profit Assc Inc Assigned to: Honorable Joan B. Gottschall Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 06/12/2001 Date Terminated: 05/08/2012 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Jeanne B. Szromba United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8122 Email: jeanne.szromba@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron R. DeCamp Equal Employment Opportunity Commission 500 W. Madison Street 2000 Chicago, IL 60661 (312)353−7582 Email: aaron.decamp@eeoc.gov ATTORNEY TO BE NOTICED

Ann M Henry Equal Employment Opportunity Commission 500 W. Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8098 Email: ann.henry@eeoc.gov ATTORNEY TO BE NOTICED

Diane Ilene Smason United States Equal Employment Opportunity Commission Legal Unit 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8120 Email: diane.smason@eeoc.gov ATTORNEY TO BE NOTICED

Ethan M.M. Cohen United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8104 Email: ethan.cohen@eeoc.gov ATTORNEY TO BE NOTICED

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 2 of 66

Gregory M. Gochanour United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8100 Email: gregory.gochanour@eeoc.gov ATTORNEY TO BE NOTICED
John W. Cooley Attorney at Law 2106 Orrington Avenue Evanston, IL 60201 (312) 328−7285 Email: jackwcool@aol.com ATTORNEY TO BE NOTICED
John C. Hendrickson Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8099 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant International Profit Associates, Inc.

represented by Jacie C Zolna Myron M. Cherry & Associates 30 North LaSalle Street Suite 2300 Chicago, IL 60602 (312) 372−2100 Email: jzolna@cherry−law.com TERMINATED: 11/17/2010 LEAD ATTORNEY
Jennifer Anne Naber Laner Muchin, Ltd. 515 North State Street #2800 Chicago, IL 60654−4688 (312) 467−9800 Email: jnaber@lanermuchin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Lee Bell Ronald L. Bell & Associates 1250 Barclay Blvd. #100 Buffalo Grove, IL 60089 (847) 495−6000 Email: rlbelllawyer@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cary Neal Goldberg Law Offices of Cary N. Goldberg 2970 Maria Avenue

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 3 of 66

Suite 209 Northbrook, IL 60062 (847) 715−9673 Email: cary@cnglegal.com TERMINATED: 06/21/2007 ATTORNEY TO BE NOTICED

Christopher Anthony Harris Shield Law Firm, LLC 3047 N. Lincoln Ave. Suite 400 Chicago, IL 60657 773−295−6148 Email: harris@shieldlawfirm.com ATTORNEY TO BE NOTICED

Myron Milton Cherry Myron M. Cherry & Associates 30 North LaSalle Street Suite 2300 Chicago, IL 60602 (312) 372−2100 Email: mcherry@cherry−law.com TERMINATED: 11/17/2010 ATTORNEY TO BE NOTICED

Violet M. Clark Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd. 515 North State Street Suite 2800 Chicago, IL 60610−4798 (312) 467−9800 Email: vclark@lanermuchin.com ATTORNEY TO BE NOTICED

Intervenor Plaintiff Rhonda Porter

Court Monitor George Galland

Intervenor Plaintiff Marian Townson

represented by Laurie J Wasserman Law Offices of Laurie J. Wasserman 8836 Kolmar Avenue Skokie, Il 60076 (847) 674−7324 Email: ljw@webemploymentlaw.com TERMINATED: 10/23/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol G. Silverman The Law Offices of Carol G. Silverman 790 Frontage Road Suite 407 Northfield, Il 60069 (847) 850−0101 Email: cgs@employedlaw.com TERMINATED: 10/23/2009

Dennis P. W. Johnson

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 4 of 66
Pugh, Jones & Johnson, P.C. 180 North LaSalle Street Suite 3400 Chicago, IL 60601−2700 (312) 768−7800 Email: djohnson@pjjlaw.com ATTORNEY TO BE NOTICED
Edward J. Moran Attorney at Law 330 N. Wabash Suite 2604 Chicago, IL 60611 (312)759−0505 Email: ejmoran@prodigy.net TERMINATED: 02/19/2004
Jin−Ho Chung Equip For Equality 20 N. Michigan Ave. Ste. 300 Chicago, IL 60602 312−895−7312 Email: jinho@equipforequality.org TERMINATED: 04/27/2010
Uma Chandrasekaran Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5000 Email: uchandrasekaran@seyfarth.com ATTORNEY TO BE NOTICED

Date Filed 06/12/2001 07/09/2001
07/11/2001 07/18/2001
07/18/2001 08/14/2001

# Docket Text
1 COMPLAINT; Jury demand − Civil cover sheet − Appearances of John C. Hendrickson, Gregory M. Gochanour, Diane Ilene Smason, Jeanne B. Szromba as attorneys for plaintiff (No summonses issued) (Documents: 1−1 through 1−3). (fce) (Entered: 06/13/2001)
SCHEDULE set on 7/9/01 by Hon. Joan B. Gottschall : Status hearing set to 9:30 8/16/01. Plaintiff is directed to advise the defendants of the status hearing forthwith. Parties are directed to discuss settlement of case, consent to proceed before the Magistrate Judge and a proposed discovery plan. See Judge Gottschall's civil case management packet for important information about pretrial case management procedures. This information is also located on the court's website: http://www.ilnd.uscourts.gov. Mailed notice (rj) (Entered: 07/09/2001)
2 MOTION by plaintiff−intervenor Marian Townson to intervene ; Notice. (cem) (Entered: 07/19/2001)
3 MINUTE ORDER of 7/18/01 by Hon. Joan B. Gottschall : Motion by plaintiff−intervenor − Marian Townson to intervene [2−1] with respect to her claim under Title VII pursuant to Rule 24(a)(1) of the FRCP and Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e−5(f)(1) is granted. Mailed notice (cem) (Entered: 07/19/2001)
4 WAIVER of service of summons as to defendant sent on 6/12/01. (cem) (Entered: 07/19/2001)
5 ATTORNEY APPEARANCE for defendant Intl Profit Assc Inc by Ronald Lee Bell (rmm) (Entered: 08/15/2001)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 5 of 66

08/14/2001 08/16/2001 08/16/2001 08/16/2001
08/31/2001 09/04/2001 09/13/2001 09/20/2001 09/20/2001 09/25/2001 09/26/2001 10/03/2001
10/10/2001
10/15/2001 10/16/2001 11/01/2001 11/07/2001

6 ANSWER by defendant Intl Profit Assc Inc to complaint [1−1]; Notice (rmm) (Entered: 08/15/2001)
SCHEDULE set on 8/16/01 by Hon. Joan B. Gottschall : Status hearing held. Case is referred to Magistrate Judge Denlow for discovery supervision and mediation. In court notice (rj) (Entered: 08/16/2001)
7 EXPEDITED REFERRAL ORDER: Case referred to Hon. Morton Denlow for discovery supervision , and mediation Mailed notice. (rj) (Entered: 08/16/2001)
SCHEDULE set on 8/16/01 by Hon. Morton Denlow : Initial status hearing set to 10:00 9/6/01 before Magistrate Judge Morton Denlow in Courtroom 1350. Parties shall deliver a copy of an initial status report to chambers, Room 1356, 3 business days before the initial status hearing. If the parties have recently prepared and filed an initial status report, the submission of the previously filed initial status report is sufficient. Mailed notice (dmk) (Entered: 08/16/2001)
8 JOINT INITIAL STATUS REPORT by plaintiff and defendant; Notice (yap) (Entered: 09/04/2001)
SCHEDULE set on 9/4/01 by Hon. Morton Denlow : On request of the parties, status hearing reset to 10:00 9/11/01. Status hearing set for 9/6/01 is stricken. Mailed notice (dmk) (Entered: 09/04/2001)
SCHEDULE set on 9/13/01 by Hon. Morton Denlow : Status hearing reset to 10:00 9/25/01 . Mailed notice (dmk) (Entered: 09/13/2001)
9 EMERGENCY MOTION by defendant for injunctive relief ; Affidavit by Ronald L. Bell (Attachments); Notice. (yp) (Entered: 09/26/2001)
10 MINUTE ORDER of 9/20/01 by Hon. Joan B. Gottschall : Defendant's motion for injunctive relief is denied [9−1] as moot. All paties are to comply with the agreements set forth on the record in open court. No notice (yp) (Entered: 09/26/2001)
SCHEDULE set on 9/25/01 by Hon. Morton Denlow : Status hearing H&C to 10:00 11/20/01 . Mailed notice (dmk) (Entered: 09/25/2001)
11 JOINT MOTION by EEOC and plaintiff−intervenor Marian Townson to reassign case 01 Cv 4428 (Attachments) ; Notice (rmm) (Entered: 10/04/2001)
12 MINUTE ORDER of 10/3/01 by Hon. Joan B. Gottschall : Motion to reassign case 01 Cv 4428 [11−1] is taken under advisement. This Court will issue an order detailing procedural guidelines with reference to coordinating both cases 01 C 4427 (Judge Gottschall) and 01 C 4428 (Judge Castillo) for the purposes of coordinating discovery only. Mailed notice (rmm) (Entered: 10/04/2001)
13 MINUTE ORDER of 10/10/01 by Hon. Joan B. Gottschall : Based upon the parties' statements to this court that they do not wish to have the subject cases reassigned pursuant to the court's relatedness rules, it appears that the convenience of all parties will best be served by the entry of a discovery coordination order. Judge Castillo has before him a motion to transfer venue of this case. If the motion is denied, this court and Judge Castillo will work out such an order. If the motion is granted, this court will, at the parties' request, initiate conversations with the judge to whom the case is transferred to achieve the same end. Mailed notice (rmm) (Entered: 10/11/2001)
14 AGREED MOTION by plaintiff and defendant for entry of protective order ; Notice (rmm) (Entered: 10/17/2001)
15 MINUTE ORDER of 10/16/01 by Hon. Morton Denlow : Agreed motion for entry of protective order is granted [14−1]. (Entered stipulated protective order); Notice (rmm) (Entered: 10/17/2001)
16 MOTION by defendant for leave to file additional appearance, instanter ; Notice. (lc) (Entered: 11/08/2001)
17 ATTORNEY APPEARANCE for defendant by Myron M. Cherry, Cary Neal Goldberg. (lc) (Entered: 11/08/2001)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 6 of 66

11/07/2001 11/15/2001 11/20/2001 11/20/2001 12/20/2001 12/26/2001 01/08/2002 01/09/2002
01/17/2002 01/22/2002 01/28/2002
02/11/2002 02/14/2002 02/19/2002 02/20/2002

18 MINUTE ORDER of 11/7/01 by Hon. Joan B. Gottschall : Motion by International Profit Associates Inc. for leave to file additional appearance of Myron M. Cherry and Cary Goldberg is granted [16−1]. Mailed notice (lc) (Entered: 11/08/2001)
19 MOTION by plaintiff to compel interrogatory answers and document production (Attachments); Notice (rmm) (Entered: 11/20/2001)
20 MINUTE ORDER of 11/20/01 by Hon. Morton Denlow : Status hearing held and continued to 10:00 a.m. on 12/20/01. , Settlement conference held. Substantial progress made. All pending motions are withdrawn without prejudide [11−1], [19−1]. Notices mailed by judge's staff (rmm) (Entered: 11/20/2001)
21 MINUTE ORDER of 11/20/01 by Hon. Morton Denlow: Plaintiff to submit written itemization of damages and settlement demand by 12/11/01. Defendant to submit written settlement offer by 12/18/01. Notices mailed by judge's staff (rmm) (Entered: 11/21/2001)
22 MINUTE ORDER of 12/20/01 by Hon. Morton Denlow : Status hearing held and continued to 10:00 1/15/02. Marian Townson is granted leave to file an intervening complaint on or before 1/18/02. The discovery schedule will be set at the 1/15/02 status hearing. Notices mailed by judge's staff (rmm) (Entered: 12/21/2001)
24 MOTION by defendant Intl Profit Assc Inc to compel answers to discovery requests ; Notice (rmm) (Entered: 01/10/2002)
23 RESPONSE by plaintiff EEOC to defendant International Profit Associates, Inc.'s motion to compel (Attachments); Notice (rmm) (Entered: 01/09/2002)
25 MINUTE ORDER of 1/9/02 by Hon. Morton Denlow : Status hearing reset for 10:00 2/28/02. Motion hearing held. Defendant International Profit Associates, Inc.'s motion to compel answers to discovery requests is granted in part and denied in part [24−1]. The EEOC is required to file supplemental answers on or before 2/13/02 which: 1) itemizes any out−of−pocket damages; and 2) provides a general description of the nature of the emotional distress, if any, caused by defendants conduct. (e.g., headaches, loss of sleep, loss of concentration) The EEOC is not required to provide a dollar quantification of the emotional distress damages. The EEOC shall also identify 5−10 representatives class members by 2/13/02. Status hearing set for 1/15/02 is stricken. Notices mailed by judge's staff (rmm) (Entered: 01/10/2002)
26 COMPLAINT by intervenor plaintiff Marian Townson (rmm) (Entered: 01/18/2002)
27 MOTION by defendant Intl Profit Assc Inc to compel plaintiff to produce certain documents (Attachments); Notice (rmm) (Entered: 01/29/2002)
28 MINUTE ORDER of 1/28/02 by Hon. Morton Denlow: Answer brief to motion to compel plaintiff to produce certain documents [27−1] due 2/19/02. Reply to answer brief due 3/1/02. Oral argument on motion to compel plaintiff to produce certain documents [27−1] set for 10:30 3/14/02. Plaintiff to give to Judge Denlow a copy of each type of document that they are withholding for an in camera insepction. Notices mailed by judge's staff (rmm) (Entered: 01/29/2002)
29 ANSWER by defendant Intl Profit Assc Inc and affirmative defenses to plaintiff−intervenor's complaint; Notice. [26−1] (hmb) (Entered: 02/12/2002)
31 MOTION by plaintiff EEOC for an extension of time to produce to defendant International Profit Associates, Inc. summaries of class members' emotional damages ; Notice (rmm) (Entered: 02/21/2002)
30 RESPONSE by plaintiff to motion to defendant, International Profit Associates, Inc.'s to compel plaintiff to produce certain documents [27−1] (Attachments); Notice (rmm) (Entered: 02/20/2002)
32 MINUTE ORDER of 2/20/02 by Hon. Morton Denlow: Plaintiff Equal Employment Opportunity Commission's motion for an extension of time to 3/15/02 to produce to defendant International Profit Associates, Inc. summaries of class members' emotional damages is granted [31−1]. Notices mailed by judge's staff (rmm) (Entered: 02/21/2002)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 7 of 66

02/27/2002 02/28/2002
03/01/2002 03/08/2002 03/08/2002 03/12/2002 03/13/2002
03/13/2002 03/27/2002 04/25/2002 04/30/2002 05/01/2002
05/03/2002 05/07/2002 05/08/2002
05/16/2002

33 MOTION by defendant Intl Profit Assc Inc to compel in camera documents (Attachment) ; Notice (rmm) (Entered: 03/01/2002)
34 MINUTE ORDER of 2/28/02 by Hon. Morton Denlow : Status hearing held. Motion hearing held. Defendant's motion to compel in camera documents to be produced to the court by 3/4/02 is granted [33−1]. Oral argument on motion to compel plaintiff to produce certain documents [27−1] is reset for 8:45 3/13/02. Oral argument set for 3/14/02 is stricken. Notices mailed by judge's staff (rmm) (Entered: 03/01/2002)
35 REPLY by defendant Intl Profit Assc Inc in support of its motion to compel notes of interviews [27−1](Attachments); Notice (rmm) (Entered: 03/04/2002)
36 ATTORNEY APPEARANCE for plaintiff by Ethan M.M. Cohen, Ann M Henry; Notice (rmm) (Entered: 03/11/2002)
37 MOTION by defendant to amend protective order (Attachments); Notice (yap) (Entered: 03/14/2002)
38 MOTION by plaintiff for leave to file sur−reply instanter ; Notice (yap) (Entered: 03/14/2002)
39 MINUTE ORDER of 3/13/02 by Hon. Morton Denlow : Status hearing set to 5/16/02 at 10:00 a.m. Oral argument held. EEOC's motion for leave to file sur−reply instanter [38−1] is granted. Defendant's motion to compel plaintiff to produce certain documents [27−1] is taken under advisement. Written ruling by mail on or by 3/27/02. Defendant's motion to amend protective order [37−1] is granted to the extent the parties agree and submit an amended protective order. Mailed notices by judge's staff (yap) (Entered: 03/14/2002)
40 SUR−REPLY by plaintiff in support of its opposition to IPA's motion to compel plaintiff to produce certain documents [27−1]; Declaration of Diane L. Smason (yap) (Entered: 03/14/2002)
41 MINUTE ORDER of 3/27/02 by Hon. Morton Denlow: Defendant's motion to compel plaintiff's production of interview notes is denied [27−1]. Entered Memorandum Opinion and Order. Notices mailed by judge's staff (rmm) (Entered: 04/03/2002)
42 MOTION by plaintiff to compel production of documents prior to deposition (Attachments); Notice. (vmj) (Entered: 05/02/2002)
45 MOTION by EEOC to compel answers to EEOC's second set of interrogatories (Attachments); Notice (rmm) (Entered: 05/09/2002)
43 MINUTE ORDER of 5/1/02 by Hon. Morton Denlow: Motion hearing held. EEOC's motion to compel production of documents prior to deposition is denied [42−1] except to written policies, procedures and guidelines previously submitted. Notices mailed by judge's staff (vmj) (Entered: 05/02/2002)
46 MOTION by defendant Intl Profit Assc Inc for protective order (Attachments); Notice (rmm) (Entered: 05/09/2002)
44 RESPONSE by defendant Intl Profit Assc Inc to EEOC's motion to compel answers to EEOC's second set of interrogatories (Attachments). (rmm) (Entered: 05/08/2002)
47 MINUTE ORDER of 5/8/02 by Hon. Morton Denlow: Motion hearing held. EEOC's motion to compel answers to EEOC's second set of interrogatories [45−1] is denied because Interrogatory No. 12 was inartfully drafted. Defendant has until May 29, 2002 to supplement Interrogatory No. 8. Defendant's motion for a protective order [46−1] is denied subject to the clarification made in open court. The Parties shall each be allowed to take in excess of ten depositions. The parties shall meet to agree on a number. Notices mailed by judge's staff (rmm) (Entered: 05/09/2002)
48 MINUTE ORDER of 5/16/02 by Hon. Morton Denlow : Status hearing held and continued to 10:00 7/25/02. Ross Peters, counsel for plaintiff in case 02 C 2790, is allowed to become party to the current existing protective order in this case. Fact discovery cutoff in case 02 C 2790 is 09/30/02. Rhonda Porter's deposition to be taken on or by 06/03/02. Time for defendant to supplement Interrogatory No. 8 is extended to 06/10/02. Deendant to supplement Interrogatory No. 8 with respect to deponent Williams by 05/20/02. Notices mailed by judge's staff (rmm) (Entered: 05/17/2002)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 8 of 66

06/10/2002 06/13/2002 06/13/2002 06/14/2002 06/14/2002 06/14/2002 06/14/2002 06/17/2002
06/19/2002 06/24/2002 07/01/2002 07/01/2002 07/01/2002 07/03/2002 07/03/2002 07/03/2002 07/03/2002 07/03/2002 07/09/2002

51 MOTION by defendant to compel more specific answers to defendants first set of interrogatories four and five and for attorney fees (Attachment) (RESTRICTED) (rmm) (Entered: 06/18/2002)
52 MOTION by plaintiff for order to show cause why defendant should not be held in contempt (RESTRICTED) (rmm) (Entered: 06/18/2002)
53 MOTION by plaintiff EEOC for an order to show cause why defendant should not be held in contempt (RESTRICTED) (rmm) (Entered: 06/18/2002)
49 RESPONSE by plaintiff EEOC to defendant International Profit Associates, Inc.'s motion to compel more specific answers to defenant's first set of interrogatories four and five and for attorney fees (Attachments); Notice (rmm) (Entered: 06/17/2002)
50 Document Sealed (pursuant to Court Order) (RESTRICTED) (rmm) (Entered: 06/17/2002)
54 REPLY by defendant Intl Profit Assc Inc in support of motion to compel more specific answers to defendants first set of interrogatories four and five [51−1] (rmm) (Entered: 06/18/2002)
55 RESPONSE by Intl Profit Assc Inc to EEOC's motion for order to show cause why defendant should not be held in contempt [52−1] [53−1] (rmm) (Entered: 06/18/2002)
56 MINUTE ORDER of 6/17/02 by Hon. Morton Denlow: Motion hearing held. Oral motion to extend the time to take the deposition of Ms. Porter's on or by 7/31/02 is granted. Mr. Cherry is to proceed first. Parties to complete deposition in one sitting, if possible, subject to her physical limitations. Defendant International Profit Associates, Inc.'s motion to compel more specific answers to defendants first set of interrogatories four and five [51−1] and for attorney fees [51−2] is denied. Plaintiff EEOC's motion for an order to show cause why defendant should not be held in contempt [52−1], [53−1] is denied, however, defendant is to supplement responses to Interrogatory #8 and Rule 26(a) production on or before 7/1/02 with respect to no less than 20 claims. Enter agreed order sealing defendant's motion to compel. (Entered agreed order.) Notices mailed by judge's staff (rmm) (Entered: 06/18/2002)
57 TRANSCRIPT of proceedings for the following date(s): 05/08/02 Before Honorable Morton Denlow (ntf) (Entered: 06/20/2002)
58 OBJECTIONS by defendant Intl Profit Assc Inc to Magistrate Judge's Order, dated June 17, 2002 (Attachments); Notice (rmm) (Entered: 06/25/2002)
59 MOTION by plaintiff for an order holding defendant in violation of the 10/16/01 protective order (RESTRICTED) (rmm) Modified on 07/10/2002 (Entered: 07/03/2002)
60 MOTION by plaintiff EEOC for an order holding defendant in violation of the 10/16/01 protective order (Attachments); Notice (rmm) (Entered: 07/10/2002)
61 MOTION by plaintiff EEOC for an order holding defendant in violation of the 10/16/01 protective order ; Notice (RESTRICTED) (rmm) (Entered: 07/10/2002)
62 MOTION by EEOC for entry protective order (Attachments); Notice (rmm) (Entered: 07/10/2002)
63 MOTION by EEOC for entry of a protective order ; (RESTRICTED) (rmm) (Entered: 07/10/2002)
64 EXHIBIT F by EEOC to motion for entry protective order [62−1], [63−1] (RESTRICTED) (rmm) (Entered: 07/10/2002)
67 RESPONSE by plaintiff EEOC to defendant International Profit Association Inc.'s objections to Magistrate Judge's order, dated 6/17/02 [58−1] (Attachments); Notice (rmm) (Entered: 07/12/2002)
72 Document Sealed (pursuant to Court Order) (RESTRICTED) (rmm) (Entered: 07/16/2002)
65 MINUTE ORDER of 7/9/02 by Hon. Morton Denlow : Status hearing held and continued to 10:00 7/30/02. EEOC's motion for entry protective order [62−1], [63−1]

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 9 of 66

07/10/2002 07/10/2002
07/12/2002 07/12/2002 07/12/2002 07/16/2002 07/17/2002 07/17/2002 07/17/2002
07/24/2002 07/25/2002 07/30/2002
08/07/2002

is granted in part and denied in part. Defendant is only allowed to ask deponents questions regarding drug use related to the workplace. Defendant is only allowed to ask questions regarding arrests and convictions admissible for impeachment purposes. EEOC's motion limiting the time of deposition of EEOC class members is denied without prejudice. Plaintiff's motion for holding defendant in violation of the 10/16/01 protective order [59−1] [60−1] [61−1] is denied as stated in open court. Defendant is to supplement responses to Interrogatory #8 with another 20 claims on or by 9/10/02. (Entered order sealing the defendant IPA's response to EEOC's motion regarding contempt.) Notices mailed by judge's staff (rmm) (Entered: 07/10/2002)
66 REPLY by Intl Profit Assc Inc to objections to Magistrate's order of 6/17/02 [58−1] (rmm) (Entered: 07/11/2002)
68 MINUTE ORDER of 7/10/02 by Hon. Joan B. Gottschall: Enter order on reverse side of original minute order. Defendant Profit Associates, Inc. has timely filed objections to the magistrate judge's order [56−1] denying defendant's motion to compel more specific answers to defendant's first of interrogatories four and five [51−1], and for attorney fees [51−2]. For the reasons on the reverse of this minute order, this court holds that the magistrate judge's order is not clearly erroneous or contrary to law. The court declines to modify or set aside the magistrate judge's order. (See reverse of minute order.) Mailed notice (rmm) (Entered: 07/12/2002)
69 REDACTED OBJECTIONS by Intl Profit Assc Inc to Magistrate Judge's order, dated 06/17/02 [56−1] (Attachments); Redacted notice of filing; Notice of filing (ar) Modified on 07/15/2002 (Entered: 07/15/2002)
70 REDACTED response by Intl Profit Assc Inc to EEOC's motion regarding contempt [52−1] [53−1]; Notice (ar) (Entered: 07/15/2002)
71 MOTION by Intl Profit Assc Inc to compel more specific answers to defendant's first set for interrogatories Four and five, and for attorney's fees (Attachment); Redacted notice of motion; Notice of motion (ar) (Entered: 07/15/2002)
73 EMERGENCY MOTION by EEOC for an order to show cause why IPA should not be held in contempt (RESTRICTED) (rmm) (Entered: 07/18/2002)
74 EMERGENCY MOTION by plaintiff EEOC for and order to show cause why defendant should not be held in contempt (Attachments); Notice [Redacted] (rmm) (Entered: 07/18/2002)
75 RESPONSE by Intl Profit Assc Inc to plaintiff's emergency motion regarding (Attachments); Restricted documents pursuant to LR26.2 (Attachments) [Redacted} (rmm) (Entered: 07/18/2002)
76 MINUTE ORDER of 7/17/02 by Hon. Morton Denlow: Oral argument held. Plaintiff EEOC's emergency motion for an order to show cause why defendant should not be held in contempt [73−1] [74−1] is denied, however, defendant is required to explain its position in response to allegations of paragraphs 10a thru 10g 13, 14, 15, and 16 of Rhonda Porters complaint. Case No. 02 C 2790, ad discovery. Such answer to be delivered to plaintiff's counsel and EEOC by fax on or before the close of business 7/19/02. Notices mailed by judge's staff (rmm) (Entered: 07/18/2002)
77 TRANSCRIPT of proceedings for the following date(s): 6/17/02 before Honorable Magistrate Judge Morton Denlow (rmm) (Entered: 07/25/2002)
78 MOTION by plaintiff EEOC to compel defendant IPA to supplement its response to EEOC interrogatory No. 2 (Attachments); Notice (rmm) (Entered: 07/31/2002)
79 MINUTE ORDER of 7/30/02 by Hon. Morton Denlow : Status hearing held and continued to 10:09 12/5/02. Motion hearing held. For reasons stated in open court, plaintiff, EEOC's motion to compel defendant IPA to supplement its response to EEOC interrogatory No. 2 is denied [78−1]. Deendant is to supplement responses to Interrogatory No. 8 with another 20 claims on or by 11/12/02. Notices mailed by judge's staff (rmm) (Entered: 07/31/2002)
80 MOTION by defendant for protective order ; Notice. (air) (Entered: 08/13/2002)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 10 of 66

08/12/2002 08/12/2002
08/19/2002 08/19/2002
08/21/2002 08/21/2002 08/21/2002 09/09/2002 09/25/2002
09/27/2002 10/03/2002 10/04/2002
10/07/2002 10/07/2002 10/16/2002 10/21/2002 10/21/2002 10/22/2002 10/22/2002

81 TRANSCRIPT of proceedings for the following date(s): 05/16/02 Before Honorable Morton Denlow. (air) (Entered: 08/13/2002)
82 MINUTE ORDER of 8/12/02 by Hon. Morton Denlow: Motion hearing held. Defendant's motion for protective order [80−1] is entered and continued to 9:15 a.m. on 8/21/02. All attorneys are to read the Seventh Circuit Standard for Professional Conduct, in particular, Lawyers Duty to other Counsel. All counsel are to certify in writing on or by 8/21/02 that they have read the Standards for Professional Conduct and believe that their conduct in the discovery phase of this case complies with the requirements of the Seventh Circuit. Notice mailed by judge's staff (air) (Entered: 08/13/2002)
83 CERTIFICATION OF COUNSEL by defendant's counsel; Notice. (air) (Entered: 08/20/2002)
84 MINUTE ORDER of 8/19/02 by Hon. Morton Denlow: Defendant's motion for protective order [80−1] filed 8/7/02 is withdrawn. Hearing on defendant's motion for protective order [80−1] set for 8/21/02 is stricken. (Entered Order.) Notice mailed by judge's staff (air) (Entered: 08/20/2002)
85 CERTIFICATION by Jeanne B Szromba (rmm) (Entered: 08/22/2002)
86 CERTIFICATION by Ann Henry (rmm) (Entered: 08/22/2002)
87 CERTIFICATION by Diane I Smason; Notice (rmm) (Entered: 08/22/2002)
88 MOTION by defendant Intl Profit Assc Inc to withdraw as counsel the law firm of Ronald L. Bell & Associates, P.C. ; Notice (rmm) (Entered: 09/26/2002)
89 MINUTE ORDER of 9/25/02 by Hon. Joan B. Gottschall: Filed motion by plaintiff to intervene and other relief. Plaintiff's reply to IPA's opposition to plaintiff's motion to intervene is due 10/9/02. Motion of the law firm of Ronald L. & Associates, P.C. for leave to withdraw as attorney for the defendant, International Profit Associates, Inc., is granted [88−1]. Mailed notice (rmm) (Entered: 09/26/2002)
92 MOTION by Intl Profit Assc Inc for leave to file a supplemental opposition to plaintiff's motion to intervene (Attachments); Notice (rmm) (Entered: 10/08/2002)
90 RESPONSE by plaintiff EEOC in support of Rhonda Porter's motion to intervene (Attachments); Notice (rmm) (Entered: 10/04/2002)
93 MINUTE ORDER of 10/4/02 by Hon. Joan B. Gottschall : Motion by defendant, International Profit Association, Inc. for leave to file a supplemental opposition to plaintiff's motion to intervene is granted [92−1]. Mailed notice (rmm) (Entered: 10/08/2002)
91 REPLY brief by Rhonda Porter in support of the motion to intervene (Attachments); Notice (rmm) (Entered: 10/08/2002)
94 LETTER from Ross J Peters to Judge Gottschall dated 10/7/02 (rmm) (Entered: 10/08/2002)
95 TRANSCRIPT of proceedings for the following date(s): 7/30/02 before Honorable Morton Denlow. (rmm) (Entered: 10/17/2002)
97 MOTION by EEOC to compel production of certain pre−1997 documents , and to supplement to its earlier production of personnel files (Attachments); Notice (rmm) (Entered: 10/29/2002)
98 MOTION by EEOC to set a discovery cutoff date ; Notice (rmm) (Entered: 10/29/2002)
99 AMENDED NOTICE by EEOC of motion to set a discovery cutoff date [98−1] (rmm) (Entered: 10/29/2002)
100 AMENDED NOTICE by EEOC of motion to compel production of certain pre−1997 documents [97−1] and to supplement to its earlier production of personnel files [97−2] (rmm) (Entered: 10/29/2002)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 11 of 66

10/25/2002 10/28/2002
11/12/2002 11/15/2002 11/19/2002 11/19/2002 11/19/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/25/2002 11/25/2002 11/25/2002 11/27/2002
12/05/2002 12/06/2002

96 ATTORNEY APPEARANCE for unknown Phyllis Lopez by Ross J. Peters (rmm) (Entered: 10/28/2002)
101 MINUTE ORDER of 10/28/02 by Hon. Morton Denlow: Plaintiff's motion to compel [71−1] is granted as follows: Defendant to provide an affidavit on or before 11/14/02 confirming that no documents have been removed from the personnel files of the alleged harassers. Defendants to produce updated personnel files on the alleged harassers 14 days prior to their deposition or one date prior to the close of discovery in event that their depositions are to be taken. Plaintiff's motion to set discovery cutoff is granted [98−1]. The discovery cut−off date is set for 12/31/03. Expert disclosures and expert report to be produced by 10/31/03. Expert depositions by 12/31/03. Defendant is to supplement responses to interrogatorrry #8 with another 20 claims on or by 1/31/03 [97−2]. Firm dates. Mailed notice (rmm) (Entered: 10/29/2002)
102 OBJECTIONS by plaintiff EEOC to Magistrate Judge's order setting a discovery cutoff date (Attachments); Notice (rmm) (Entered: 11/13/2002)
103 RESPONSE by Intl Profit Assc Inc to plaintiff EEOC's objection to Magistrate Judge's order setting a discovery cut−off date [102−1]; Notice (rmm) (Entered: 11/15/2002)
108 MOTION by defendant Intl Profit Assc Inc to compel EEOC to produce all tapes and other documents ; Notice (rmm) (Entered: 12/02/2002)
109 MOTION by defendant Intl Profit Assc Inc to strike new class members identified in interogatory answer supplements ; Notice (rmm) (Entered: 12/02/2002)
110 MOTION by defendant Intl Profit Assc Inc for protective order (rmm) (Entered: 12/02/2002)
104 REPLY by plaintiff EEOC in support of its objections to Magistrate Judge's order setting a discovery cutoff date [102−1]; Notice (rmm) (Entered: 11/25/2002)
111 AMENDED NOTICE by defendant of motion to compel EEOC to produce all tapes and other documents [108−1] (rmm) (Entered: 12/02/2002)
112 AMENDED NOTICE by defendant Intl Profit Assc Inc of motion for protective order [110−1] (rmm) (Entered: 12/02/2002)
113 AMENDED NOTICE by defendant Intl Profit Assc Inc of motion to strike new class members identified in interogatory answer supplements [109−1] (rmm) (Entered: 12/02/2002)
105 RESPONSE by plaintiff EEOC to defendant International Profit Associates, Inc.'s motion for protective order (rmm) (Entered: 11/26/2002)
106 RESPONSE by plaintiff EEOC to IPA's motion to strike new class members (rmm) (Entered: 11/26/2002)
107 RESPONSE by plaintiff EEOC to International Profit Associates, Inc.'s motion to compel (Attachments); Notice (rmm) (Entered: 11/26/2002)
114 MINUTE ORDER of 11/27/02 by Hon. Morton Denlow : Status hearing reset for 10:00 1/16/03. Defendant's motion to compel EEOC to produce all tapes and other documents not produced is granted. motion for protective order is denied [108−1]. Plaintiff No. 111 is ordered to produce any tapes in her possession arising out of her employment on or by 12/4/02. Defendant's request for fees and costs is denied. Defendant's motion for protective order is denied [110−1]. Defendant's motion to strike new class members identified in interogatory answer supplements of 11/13/02 [109−1] is granted without prejudice. EEOC is no longer permitted to add any new class members. Status hearing set for 12/5/02 is stricken. Notices mailed by judge's staff (rmm) (Entered: 12/02/2002)
115 MOTION by defendant Intl Profit Assc Inc to compel plaintiff to immediately produce all transcripts and tapes , and for other relief (Attachments); Notice (rmm) (Entered: 12/10/2002)
116 RESPONSE by plaintiff, EEOC to IPA"s motion to compel plaintiff to immediately produce all transcripts and tapes [115−1], and for other relief [115−2] (Attachments) (rmm) (Entered: 12/10/2002)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 12 of 66

12/09/2002
12/09/2002 12/11/2002 12/12/2002 12/12/2002 12/16/2002
01/02/2003
01/22/2003 01/31/2003 01/31/2003 01/31/2003 01/31/2003 01/31/2003 01/31/2003 02/04/2003 02/10/2003

117 MINUTE ORDER of 12/9/02 by Hon. Morton Denlow: Motion hearing held on defendant Internatinal Profit Associates, Inc.'s motion to compel plaintiff to immediately produce all transcripts and tapes [115−1] and for other relief [115−2]. Defendant's motion to compel seeking immediate production is denied as moot. Defendant's motion for other relief is denied. Notices mailed by judge's staff (rmm) (Entered: 12/10/2002)
119 MOTION by EEOC for reconsideration of this court's 11/27/2002 order (Attachments); Notices (rmm) (Entered: 12/17/2002)
118 RESPONSE by Intl Profit Assc Inc., to EEOC's motion for reconsideration of the 11/27/02 order; Notice (rmm) (Entered: 12/12/2002)
120 MOTION by EEOC to compel defendant to respond to discovery requests (Attachments); Notice (rmm) (Entered: 12/17/2002)
121 REPLY by EEOC in support of its motion for reconsideration of this court's 11/27/2002 order [119−1] (Attachments) (rmm) (Entered: 12/17/2002)
122 MINUTE ORDER of 12/16/02 by Hon. Morton Denlow : Status hearing set for 10:00 on 3/25/2003. Motion hearing held on plaintiff's motion for reconsideration and plaintiff's motion to compel. For reasons stated in open court, Plaintiff's motion for reconsideration of this court's 11/27/2002 order is granted [119−1]. EEOC is to identy all alleged class members to defendant on or by 6/30/2003. EEOC's motion to compel [120−1] is granted in part and denied in part as follows: Plaintiff's motion to compel production of relevant information about sex harassment allegation in response to EEOC Interrogatory Nos. 4,5, and 8 is denied based on defense counsel's representation. EEOC's motion for production of complaint of sex harassment since May, 2002 is granted. Complaints of sex harassment Since May 2002 are to be produced on a quarterly basis with the first production to start 1/6/2003. EEOC's motion to produce John Burgess for his deposition is granted. John Burgess to be produced for his deposition no later than 3/17/2003. Deposition date to be agreed upon by 12/20/2002. Status hearing set for 1/16/2003 is stricken. Notices mailed by judge's staff (rmm) (Entered: 12/17/2002)
123 MINUTE ORDER of 1/2/03 by Hon. Joan B. Gottschall: The order to which plaintiff EEOC has objected is a discovery scheduling order, setting a discovery cutoff date of 12/31/03, rather than 3/28/03, as plaintiff requested, or 3/28/04, as defendant requested. This order may be reconsidered only if it is shown to be "clearly erroneous or contrary to law." 28 U.S.C. Section 636(b)(1)(A). It is neither. It is rather a careful adjustment of the parties' competing needs and demands. The objections are overruled. (See reverse of minute order.) Mailed notice (rmm) Modified on 01/22/2003 (Entered: 01/06/2003)
124 TRANSCRIPT of proceedings for the following date(s): 12/16/02 before Honorable Morton Denlow (rmm) (Entered: 01/23/2003)
129 MOTION by defendant to strike alleged class member and for other relief ; Notice (cdy) (Entered: 02/13/2003)
130 MOTION by defendant to compel verified interrogatory answers (cdy) (Entered: 02/13/2003)
131 MOTION by defendant to compel affidavits of compliance with request for documents , and other items (cdy) (Entered: 02/13/2003)
133 MOTION by defendant to strike four alleged class members and for other relief (cdy) (Entered: 02/13/2003)
134 MOTION by defendant to compel deposition (cdy) (Entered: 02/13/2003)
135 MOTION by defendant to close alleged class (cdy) (Entered: 02/13/2003)
132 MOTION by defendant to strike alleged class member no. 45 ; Notice (cdy) (Entered: 02/13/2003)
126 JOINT RESPONSE by plaintiff EEOC and intervenor plaintiff Marian Townson to IPA's motion to compel deposition (Attachments); Notice (rmm) (Entered: 02/12/2003)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 13 of 66

02/10/2003 02/10/2003 02/10/2003 02/11/2003 02/12/2003
02/18/2003 02/19/2003 02/20/2003 02/20/2003 02/24/2003
02/26/2003 02/26/2003 02/27/2003 03/03/2003 03/17/2003

127 MOTION by plaintiff EEOC to terminate Class Member 111's deposition with response (Attachments) (rmm) (Entered: 02/12/2003)
127 RESPONSE by plaintiff EEOC to defendant IPA's motion to strike class member 111 with motion (Attachments) (rmm) (Entered: 02/12/2003)
128 EXHIBIT B by plaintiff EEOC to motion to terminate Class Member 111's deposition [127−1] and response to defendant IPA's motion to strike Class Member 111 [127−1] (RESTRICTED) (rmm) (Entered: 02/12/2003)
125 TRANSCRIPT of proceedings for the following date(s): 11/27/02 before Honorable Morton Denlow (2 vols: 125−1, 125−2) (rmm) (Entered: 02/12/2003)
136 MINUTE ORDER of 2/12/03 by Hon. Morton Denlow: Motion hearing held. For reasons stated in open court: IPA's [129−1], is denied. EEOC's motion to terminate Class Member 111's deposition [127−1], is granted. EEOC's motion for protective order is granted. IPA's motion to compel verified interrogatory answers [130−1], is denied. IPA's motion to compel affidavits of compliance with request for documents [131−1] and other items [131−2], is denied. EEOC request for protective order of class member #105 is denied. IPA's motion to strike four alleged class members #33, 37, 73 and 141 [133−1], is denied. Defendant IPA's motion to strike alleged class member no. 45 [132−1], is denied. Defendant IPA's motion to compel deposition [134−1], is denied. Defendant IPA's motion to close alleged class [135−1], is denied. (See reverse of minute order.) Notices mailed by judge's staff (cdy) (Entered: 02/13/2003)
138 MOTION by defendant Intl Profit Assc Inc to strike alleged class members Nos. 13 and 16 (Attachments); Notice (rmm) (Entered: 02/26/2003)
139 MOTION by defendant Intl Profit Assc Inc to strike alleged class member No. 84 and for other relief ; Notice (rmm) (Entered: 02/26/2003)
137 RESPONSE by plaintiff to defendant's motion to strike alleged class members nos. 13 and 16 and response (Attachment). (air) (Entered: 02/21/2003)
137 RESPONSE by plaintiff to defendant's motion to strike alleged class member no. 84 and response (Attachment). (air) (Entered: 02/21/2003)
140 MINUTE ORDER of 2/24/03 by Hon. Morton Denlow : Motion hearing held on defendant's motion to strike alleged class member Nos. 13 and 16 and defendant's motion to strike alleged class member No. 84 and for other relief. Defendant's motion to strike alleged class members Nos. 13 is granted in part and denied in part [138−1]. Class member No. 13 is dismissed from the class for failure to appear for deposition. Plaintiff to be reinstated to class upon reimbursement to defendant of $750.00 in attorney fees by 3/14/03 and a date certain is set for the deposition. Defendant's motion to strike alleged class member No. 16 is denied. Defendant's motion to strike alleged class member No. 84 is granted in part and denied in part [139−1]. Class member No. 84 is dismissed from the class for failure to appear for deposition. Plaintiff to be reinstated to class upon reimbursement to defendant of $300.00 in attorney fees by 3/14/03 and a date certain is set for the deposition. Plaintiff to pay the court reporter fees for Class members No. 13 and No. 84 cancelled deposition. Notices mailed by judge's staff (rmm) (Entered: 02/26/2003)
142 LETTER from defendant Intl Profit Assc Inc to Judge Denlow dated 2/26/03 (rmm) (Entered: 03/04/2003)
143 MOTION by defendant Intl Profit Assc Inc to quash subpoena (Attachments); Notice (rmm) (Entered: 03/04/2003)
141 RESPONSE by plaintiff EEOC to IPA's motion to quash subpoena (Attachments) (rmm) (Entered: 02/28/2003)
144 MINUTE ORDER of 3/3/03 by Hon. Morton Denlow: Motion hearing held on defendant's motion to quash subpoena. For the reasons stated in open Court, defendant's motion to quash subpoena is denied [143−1]. No notice (rmm) (Entered: 03/04/2003)
145 MOTION by EEOC to compel response to 13th request for production of documents ; (Attachments) (rmm) Modified on 03/26/2003 (Entered: 03/26/2003)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 14 of 66

03/19/2003 03/20/2003 03/24/2003 03/25/2003
04/01/2003 04/03/2003 04/18/2003 04/21/2003 04/23/2003 04/23/2003
05/22/2003 06/02/2003 06/05/2003 06/09/2003
06/10/2003 07/15/2003 09/02/2003

149 RESPONSE by defendant to EEOC's motion to compel production of certain pre−1997 documents [97−1]; Notice. (jmp) (Entered: 04/01/2003)
146 MOTION by EEOC to compel production of James Colello documents (Attachments); Notice (rmm) Modified on 03/26/2003 (Entered: 03/26/2003)
147 EMERGENCY MOTION by plaintiff EEOC for a protective order (Attachment); Notice (rmm) Modified on 03/26/2003 (Entered: 03/26/2003)
148 MINUTE ORDER of 3/25/03 by Hon. Morton Denlow : Status hearing held and continued to 10:00 6/26/03. Motion hearing held on EEOC's motion to compel, EEOC's motion to compel production of James Coiello documents and EEOC's emergency motion for a protective order. EEOC's motion to compel [145−1] is granted as follows: Defendant to produce any additional sexual harassment complaints and dispositions thereof found in the 15 personal files referred to in the thirteenth request for production of documents. EEOC's motion to compel James Coiello documents [146−1] is denied based on counsel's representation that all documents related to the sexual harassment complaint and problems in the human resources department relating to the sexual harassment complaint have been produced. For reasons stated in open Court, EEOC's emergency motion for a protective order [147−1] is denied. Mailed notice (rmm) (Entered: 03/26/2003)
150 OBJECTIONS by plaintiff EEOC to Magistrate Judge's denial of emergency motion for a protective order (Attachments); Notice (rmm) (Entered: 04/02/2003)
151 RESPONSE by defendant Intl Profit Assc Inc to EEOC's objections to denial of emergency motion for protective order [150−1]; Notice (rmm) (Entered: 04/04/2003)
153 MOTION by Intl Profit Assc Inc for protective order ; Notice (rmm) (Entered: 04/24/2003)
152 RESPONSE by EEOC to defendant's motion for protective order (Attachments); Notice (rmm) (Entered: 04/22/2003)
154 MINUTE ORDER of 4/23/03 by Hon. Morton Denlow : Motion hearing held on defendant's motion for protective order. For reasons stated in open court, Defendant's motion for protective order is denied [153−1]. No notice (rmm) (Entered: 04/24/2003)
155 MINUTE ORDER of 4/23/03 by Hon. Joan B. Gottschall : This court sets aside Magistrate Judge Denlow's ruling denying EEOC's motion for a protective order and grants the motion for a protective order [147−1]. (Entered order.) Mailed notice (rmm) (Entered: 04/24/2003)
156 TRANSCRIPT of proceedings for the following date(s): 03/25/03 Before Honorable Morton Denlow (gcy) (Entered: 05/23/2003)
158 MOTION by defendant to strike two alleged class members (Attachments); Notice (las) (Entered: 06/10/2003)
157 RESPONSE by plaintiff to defendant International Profit Associates, Inc.'s motion to strike two alleged class members (Attachment). (fce) (Entered: 06/09/2003)
159 MINUTE ORDER of 6/9/03 by Hon. Morton Denlow : Status hearing held and continued to 7/15/03 at 10:00 a.m. Motion hearing held on defendant's motion to strike two alleged class members. For reasons stated in open court, defendant's motion to strike two alleged class members is denied [158−1]. Status hearing set for 6/26/03 is stricken. Mailed notice (las) (Entered: 06/10/2003)
160 TRANSCRIPT of proceedings for the following date(s): Held on 9/25/02 before Honorable Morton Denlow. (cem) (Entered: 06/11/2003)
SCHEDULE set on 7/15/03 by Hon. Morton Denlow : Status hearing held and continued to 10:00 10/9/03. Mailed notice (dmk) (Entered: 07/15/2003)
161 MOTION by intervenor plaintiff Rhonda Porter to spread the death of recording Rhonda Porter , and to appoint Antonio Porter as administrator of her estate for the purposes of this lawsuit pursuant to Federal Rule of Civil Procedure 25 (Attachments); Notice (rmm) (Entered: 09/09/2003)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 15 of 66

09/05/2003
10/09/2003
10/15/2003 10/17/2003 10/29/2003 11/05/2003 11/10/2003 11/12/2003
11/13/2003 11/17/2003
11/17/2003 11/17/2003 11/18/2003 11/18/2003 11/19/2003

162 MINUTE ORDER of 9/5/03 by Hon. Joan B. Gottschall: Motion by counsel for Intervenor Rhonda Porter to spread the death of recording Rhonda Porter [161−1] and to appoint Antonio Porter as administrator of her estate for the purposes of this pursuant to Federal Rule of Civil Procedure 25 [161−2] is granted. Mailed notice (rmm) (Entered: 09/09/2003)
SCHEDULE set on 10/9/03 by Hon. Morton Denlow : Status hearing held and continued to 10:00 1/6/04. Defendants counsel to notify Plaintiffs counsel on or by 10/31/03 on whether they intend to retain experts. Expert report due on or by 12/15/03. Plaintiff to submit written itemization of damages and settlement demand by 11/28/03. Defendant to submit written settlement offer by 12/15/03. Mailed notice (dmk) (Entered: 10/09/2003)
163 TRANSCRIPT of proceedings for the following date(s): 10/9/03 before Honorable Morton Denlow. (rmm) (Entered: 10/16/2003)
164 MOTION by defendant Intl Profit Assc Inc to reconsider (Attachments); Notice (rmm) (Entered: 10/30/2003)
165 MINUTE ORDER of 10/29/03 by Hon. Morton Denlow: Motion hearing held on defendant's motion to reconsider. Defendant's motion to reconsider is denied as stated in open court [164−1]. Notices mailed by judge's staff (rmm) (Entered: 10/30/2003)
166 OBJECTIONS by defendant Intl Profit Assc Inc to Magistrate Judge's orders dated October 9 and October 29, 2003 [165−1] (Attachments); Notice (rmm) (Entered: 11/06/2003)
167 EMERGENCY MOTION by defendant Intl Profit Assc Inc for rule to show cause (Attachments); Notice (rmm) Modified on 11/13/2003 (Entered: 11/13/2003)
168 MINUTE ORDER of 11/12/03 by Hon. Morton Denlow: Motion hearing held on Defendant IPA's emergency motion for rule to show cause. Defendant IPA's emergency motion for rule to show cause is granted [167−1]. Mr. James F. Colello is ordered to appear for his deposition on or by 11/21/03. If James F. Colello fails to appear for his deposition by 11/12/03, James F. Colello will be barred from testifying at trial and will be barred from submitting any affidavits in connection with motions that may be filed. Notices mailed by judge's staff (rmm) (Entered: 11/13/2003)
169 RESPONSE by EEOC to Defendant International Profit Associates, Inc.'s objections to Magistrate Judge's orders dated October 9 and October 29, 2003 [166−1] (Attachments) (rmm) (Entered: 11/14/2003)
170 MINUTE ORDER of 11/17/03 by Hon. Morton Denlow : Motion hearing held on defendant's emergency motion regarding subpoenaed witness James Colello. Defendant's emergency motion regarding subpoenaed witness James Colello is granted. James Colello is ordered to appear for his deposition on 11/23/03 at 9;30 a.m. at the offices of Myron M. Cherry & Associates, LLC, 30 North LaSalle Street, Suite 2300, Chicago, IL 60602. Mailed notice by judge's staff (eav) (Entered: 11/18/2003)
171 MOTION by defendant to compel more specific answers to defendant's interrogatories (Attachments); Notice (rmm) (Entered: 11/20/2003)
172 MOTION by Intl Profit Assc Inc to compel documents from James F. Colello (Attachments); Notice (rmm) Modified on 11/20/2003 (Entered: 11/20/2003)
173 MOTION by EEOC to compel information related to IPA's expert witnesses , and for additional time for the completion of expert discovery (Attachments); Notice (rmm) (Entered: 11/20/2003)
184 SUPPLEMENT by EEOC to motion for entry of protective order (Attachments); Notice (rmm) (Entered: 12/04/2003)
174 MINUTE ORDER of 11/19/03 by Hon. Morton Denlow : Motion hearing held. Defendant's motion to compel documents from James F. Colello [172−1] is denied for failure to notfiy James F. Colello of this motion. Defendant's motion to compel more specific answers to defendant's interrogatories [171−1] is entered and continued to 9:15 11/26/03. EEOC's motion to compel information related to IPA's expert witnesses [173−1] is entered and continued to 9:15 11/26/03. Notices mailed by judge's staff. Mailed notice (rmm) (Entered: 11/20/2003)

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11/21/2003 11/21/2003 11/24/2003 11/24/2003 11/24/2003 11/24/2003 11/24/2003 11/24/2003 11/26/2003
11/28/2003 11/28/2003 12/01/2003 12/01/2003

175 REPLY by defendant Intl Profit Assc Inc in support of its objections to Magistrate Judge's orders dated October 9 and October 29, 2003 [166−1]; Notice (rmm) (Entered: 11/24/2003)
176 NOTICE by defendant Intl Profit Assc Inc of filing letter from EEOC dated 11/19/03 (Attachment) (rmm) (Entered: 11/24/2003)
177 MOTION by plaintiff for entry of protective order (Attachments); Notice. (jmp) (Entered: 12/01/2003)
178 MOTION by defendant Intl Profit Assc Inc to enforce deposition notice and for other relief (Attachments); Notice. (jmp) (Entered: 12/01/2003)
179 MOTION by defendant Intl Profit Assc Inc to bar testimony of James F. Colello ; Notice. (jmp) (Entered: 12/01/2003)
180 MOTION by defendant Intl Profit Assc Inc to strike alleged class members Nos. 142 and 164 (Attachment); Notice. (jmp) Modified on 12/01/2003 (Entered: 12/01/2003)
181 MOTION by defendant Intl Profit Assc Inc to strike alleged class member No. 163 (Attachment); Notice. (jmp) (Entered: 12/01/2003)
182 MOTION by defendant Intl Profit Assc Inc to strike alleged class member No. 94 (Attachment); Notice. (jmp) (Entered: 12/01/2003)
183 MINUTE ORDER of 11/26/03 by Hon. Morton Denlow : Reply brief to motion to enforce deposition notice [178−1] and for other relief [178−2] due 12/05/03. Hearing on defendant's motion to enforce deposition notice [178−1] and plaintiff's motion for protective order [177−1] set for 9:30 a.m. on 12/10/03. Motion hearing held. Defendant's motion to bar testimony of James F. Colello is granted [179−1]. Enter Order. Defendant's motion to strike alleged class members Nos. 142 and 164 is denied [180−1] for reasons stated in open Court. Defendant's motion to strike alleged class member No. 163 is denied [181−1] for reasons stated in open court. Motion to strike alleged class member No. 94 is denied [182−1] for reasons stated in open Court. Defendant's request that the deposition of Witness W be deemed terminated is denied. EEOC's request that IPA's motion for protective order be denied is denied [181−1] for reasons stated in open court. Motion to strike alleged class member No. 94 is denied [182−1] for reasons stated in open Court. Defendant's motion for entry of protective is granted [177−1] with respect to placing documents concerning witness W under seal. Defendant's request that the deposition of Witness W be deemed terminated is denied. EEOC's request that IPA's motion for protective order be denied is denied. EEOC's motion to compel the completion of Witness W's deposition is granted. EEOC's motion for appointment of a special master to attend all depositions is denied. John W. Cooley ((847) 328−7285) is appointed as Special Master to attend the deposition of Witness W. Expenses to be shared equally between both parties. Witness W's personnel file to be produced under protective order 7 days prior to deposition. Witness W.'s deposition is to be placed under seal pursuant to protective order. EEOC's motion to compel information is denied [173−1]. EEOC's motion and for additional time for the completion of expert discovery is granted [173−2]. Date for disclosing experts and for filing expert reports is vacated and will be reset at status on 01/06/04. Defendant's motion to compel more specific answers to defendant's interrogatories is denied [171−1]. (Entered Order). Mailed notice by judge's staff (jmp) (Entered: 12/01/2003)
185 RESPONSE by EEOC to defendant International Profit Association, Inc's motion for protective order with motion (RESTRICTED) (rmm) (Entered: 12/04/2003)
185 MOTION by EEOC to compel the completion of Chandra Williams deposition , and for the appointment of a Special Master with response (RESTRICTED) (rmm) (Entered: 12/04/2003)
187 MOTION by Intl Profit Assc Inc to withdraw its objection to Magistrate Judge Morton Denlow's orders on expert disclosures ; Notice (rmm) (Entered: 12/10/2003)
191 MOTION by defendant Intl Profit Assc Inc to extend time and for permission to file interrogatories in excess of Twenty−Five (25) ; Notice (rmm) (Entered: 12/12/2003)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 17 of 66

12/02/2003
12/04/2003 12/05/2003 12/05/2003 12/08/2003 12/08/2003 12/08/2003 12/09/2003 12/09/2003 12/10/2003
12/12/2003 12/15/2003
12/18/2003 12/18/2003 12/22/2003 12/22/2003

190 MINUTE ORDER of 12/2/03 by Hon. Joan B. Gottschall : For the reasons stated in the attached memorandum opinion and order, defendant International Profit Associates' motion to dismiss plaintiff Rhonda Porter's complaint ([5−1] in case no. 02 C 2790) is denied. Entered Memorandum Opinion and Order. Mailed notice (rmm) (Entered: 12/11/2003)
192 MOTION by defendant Intl Profit Assc Inc to strike alleged class member No. 130 (Attachments); Notice (rmm) (Entered: 12/12/2003)
186 REPLY by Intl Profit Assc Inc in support of its motion to compel 30(b)(6) deposition of an EEOC representative; Notice (Attachment) (rmm) (Entered: 12/08/2003)
188 MINUTE ORDER of 12/5/03 by Hon. Joan B. Gottschall: Defendant, International Profit Associates, Inc.'s motion to withdraw its objection to Magistrate Judge Morton Denlow's orders on expert disclosures is granted [187−1]. Objection withdrawn [166−1]. Mailed notice (rmm) (Entered: 12/10/2003)
193 MOTION by defendant for leave to file motion , and memorandum in support in excess of 15 pages ; Notice (rmm) (Entered: 12/12/2003)
194 MOTION by Intl Profit Assc Inc for sanctions against the EEOC for deposition and discovery misconduct and memorandum of law in support (Attachments); Notice (rmm) (Entered: 12/12/2003)
195 MOTION by EEOC for entry of protective order (Attachments); Notice (rmm) (Entered: 12/12/2003)
189 EMERGENCY addendum by defendant Intl Profit Assc Inc motion to strike alleged class member (Attachments); Notice (rmm) (Entered: 12/10/2003)
196 RESPONSE by EEOC to defendant International Profit Associates, Inc.'s motion to extend time and for permission to file interrogatories in excess of Twenty−Five (25) [191−1] (Attachments) (rmm) (Entered: 12/12/2003)
197 MINUTE ORDER of 12/10/03 by Hon. Morton Denlow : Motion hearing held. Defendant's motion to strike Class Member #130 is denied. Defendant's addendum to strike Class Member #142 is granted in part. EEOC's motion for protective order for Class Member #1 is granted. Intervenor's oral motion to defer the deposition of Phillip Bell is denied. Defendant's motion for leave to file motion for sanctions [193−1] and memorandum in support in excess of 15 pages [193−1] is denied without prejudice. Motion hearing held on defendant's motion to enforce deposition notice [178−1] and for other relief [178−2]. Defendant's motion to enforce deposition notice is denied [178−1]. EEOC's motion for entry of protective order is granted [195−1]. Defendant's motion to extend time [191−1] is granted consistent with the Court's ruling. (See reverse of minute order.) Notices mailed by judge's staff (rmm) Modified on 12/16/2003 (Entered: 12/12/2003)
198 EMERGENCY MOTION by Intl Profit Assc Inc for extension of time in which to serve contention interrogatories ; Notice (rmm) (Entered: 12/16/2003)
199 MINUTE ORDER of 12/15/03 by Hon. Morton Denlow: Motion hearing held on International Profit Associates, Inc.'s emergency motion for extension of time in which to serve contention interrogatories [198−1]. International Profit Associates, Inc.'s emergency motion for extension of time in which to serve contention interrogatories [198−1] is granted through 1/12/04. Defendant is limited to filing 15 contention interrogatories. Notices mailed by judge's staff (rmm) (Entered: 12/16/2003)
200 MOTION by EEOC to compel the deposition of Elaine Moore ; Notice (rmm) (Entered: 12/23/2003)
201 MOTION by EEOC to quash subpoenas , and for protective order (Attachments) (rmm) (Entered: 12/23/2003)
202 AMENDMENT by Intl Profit Assc Inc to its motion for sanctions against the EEOC for deposition and discovery misconduct [194−1]; Notice (Attachment) (rmm) (Entered: 12/23/2003)
203 MINUTE ORDER of 12/22/03 by Hon. Morton Denlow : Filed International Profit Associates, Inc.'s motion for sanctions against the EEOC for deposition and discovery

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 18 of 66

12/23/2003 12/31/2003 01/05/2004
01/09/2004 01/12/2004 01/16/2004 01/20/2004 01/21/2004
01/22/2004 01/22/2004 01/23/2004 01/26/2004 01/27/2004

misconduct [194−1]. Answer brief to motion due 1/26/04. Reply to answer brief due 2/9/04. Hearing on International Profit Associates, Inc.'s motion for sanctions against the EEOC for deposition and discovery misconduct [194−1] set for 10:00 a.m. on 2/23/04. Motion hearing held on EEOC's motion to compel the deposition of Elaine Moore and EEOC's motion to quash subpoenas and for protective order. EEOC's motion to compel the deposition of Elaine Moore is granted 200 . Elaine Moore is to be produced for deposition on 12/31/03. In the event she does not appear for her deposition, adverse inferences may be drawn against defendant on the issue of management's knowledge of ongoing sex harassment in the work−place. EEOC's motion to quash subpoenas [201−1] and for protective order [201−2] is denied as stated in open court. International Profit Associates, Inc. is granted leave to file an amendment to their motion for sanctions. Telephoned notice (rmm) (Entered: 12/24/2003)
204 UNOPPOSED MOTION by EEOC to extend discovery regarding IPA's financial condition ; Notice (rmm) (Entered: 01/07/2004)
205 MOTION by defendant Intl Profit Assc Inc to compel (Attachments); Notice (rmm) (Entered: 01/07/2004)
206 MINUTE ORDER of 1/5/04 by Hon. Morton Denlow : Status hearing held. Motion hearing held on EEOC's unopposed motion to extend discovery regarding IPA's financial condition. EEOC's unopposed motion to extend discovery regarding IPA's financial condition through 1/30/04 is granted [204−1], Defendant's motion to compel [205−1] is held and continued to 9:15 a.m. on 1/28/04. Notices mailed by judge's staff (rmm) Modified on 01/07/2004 (Entered: 01/07/2004)
207 MOTION by plaintiff to set trial date and to set dates for expert discovery ; Notice. (jmp) (Entered: 01/12/2004)
208 ATTORNEY APPEARANCE for defendant Intl Profit Assc Inc by Jennifer Anne Naber, Violet M. Clark (eav) (Entered: 01/13/2004)
209 RESPONSE by defendant Intl Profit Assc Inc to EEOC's motion to set trial date and to set dates for expert discovery [207−1]; Notice (rmm) (Entered: 01/20/2004)
210 TRANSCRIPT of proceedings for the following date(s): 04/23/03 before Honorable Morton Denlow (rmm) (Entered: 01/21/2004)
221 MINUTE ORDER of 1/21/04 by Hon. Joan B. Gottschall: Pretrial conference set for 10:15 a.m. on 1/19/05. Trial set for 9:00 a.m. on 2/7/05. Motion by plaintiff to set trial date and to set dates for expert discovery is granted [207−1]. Defendant's expert report by 04/01/04. Depositions of defendant's experts by 05/15/04. Expert discovery ordered closed 6/15/04. Dispositive motions deadline by 07/15/04. Responses by 08/15/04. Replies by 08/30/04. Final pretrial order and motions in limine are due by 12/17/04. Responses by 01/03/05. Replies by 01/10/05. Mailed notice (rmm) (Entered: 02/04/2004)
211 SUPPLEMENT by Intl Profit Assc Inc to its motion to compel Andrew Daley deposition answers and production of alleged privileged documents [205−1] (Attachments); Notice (rmm) (Entered: 01/23/2004)
214 MOTION by defendant Intl Profit Assc Inc to approve direct communication for settlement purposes between International Profit Associates, Inc. and Claimants (Attachments); Notice (rmm) (Entered: 01/29/2004)
212 TRANSCRIPT of proceedings for the following date(s): 11/17/03 and 11/19/03 Before Honorable Magistrate Morton Denlow [2 vols: 212−1, 212−2]. (vmj) (Entered: 01/26/2004)
213 RESPONSE by plaintiff to Intl Profit Assc Inc's motion for sanctions against the EEOC for deposition and discovery misconduct [194−1] (Attachment). (air) (Entered: 01/27/2004)
215 SECOND MOTION by EEOC to extend discovery regarding IPA's financial condition ; Notice (rmm) (Entered: 01/29/2004)

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01/27/2004 01/27/2004 01/28/2004
01/28/2004 01/30/2004 02/03/2004 02/04/2004
02/06/2004 02/06/2004 02/06/2004 02/09/2004 02/09/2004 02/10/2004 02/11/2004
02/12/2004 02/13/2004

216 RESPONSE by EEOC to defendant International Profit Associates, Inc.'s motion to approve direct communication for settlement purposes between International Profit Associates, Inc. and Claimants [214−1] (Attachments) (rmm) (Entered: 01/29/2004)
217 RESPONSE by EEOC to IPA's motion to compel Andrew Daley deposition answers and production of privileged documents [205−1] (Attachments) (rmm) (Entered: 01/29/2004)
218 MINUTE ORDER of 1/28/04 by Hon. Morton Denlow : Filed defendant's motion to approve direct communication for settlement purposes [214−1] and defendant's motion to compel [205−1]. Reply to answer brief due 2/13/04. Hearing on motion to approve direct communication for settlement purposes International Profit Associates, Inc. and Claimants [214−1] and motion to compel [205−1] set for 10:00 a.m. on 2/23/04. Motion hearing held on EEOC's second motion to extend discovery regarding IPA's financial condition. EEOC's second motion to extend discovery regarding IPA's financial condition [215−1 is granted. The Court hereby extends the time period within which to complete discovery on IPA's financial condition until 90 days after EEOC receives IPA's 2003 tax return and financial statement. Notices mailed by judge's staff (rmm) (Entered: 01/29/2004)
219 TRANSCRIPT of proceedings for the following date(s): 12/15/03 before Honorable Morton Denlow (rmm) (Entered: 01/29/2004)
220 ATTORNEY APPEARANCE for unknown Maria Sue Hartl by James C. Vito; Notice (rmm) (Entered: 02/02/2004)
222 EMERGENCY MOTION by EECO for a protective order (Attachments); Notice (rmm) (Entered: 02/05/2004)
223 MINUTE ORDER of 2/4/04 by Hon. Joan B. Gottschall: Hearing held. Plaintiff EEOC's emergency motion for a protective order is referred to Magistrate Judge Denlow for hearing and ruling. Defendant is given leave to file response to motion by 2/10/04. Parties are requires to contact Magistrate Judge Denlow's staff and schedule a time to appear on said motion. Mailed notice (rmm) (Entered: 02/05/2004)
225 REPLY by defendant regarding sanctions [194−1] and other relief [178−2] (Attachments); Notice (rmm) (Entered: 02/12/2004)
226 REPLY by Intl Profit Assc Inc in support of motion to compel Andrew Daley deposition answers and production of alleged privileged documents [205−1] (rmm) (Entered: 02/12/2004)
227 REPLY by Intl Profit Assc Inc in support of its motion to approve direct communication for settlement purposes between International Profit Associates, Inc. and Claimants [214−1] (rmm) (Entered: 02/12/2004)
228 MOTION by EEOC to add class members (Attachments); Re−Notice; Notice (rmm) Modified on 02/12/2004 (Entered: 02/12/2004)
236 MOTION by defendant Intl Profit Assc Inc to bar testimony of witnesses disclosed after discovery cutoff , or to reopen discovery ; Notice (rmm) (Entered: 02/25/2004)
224 RESPONSE by Intl Profit Assc Inc in opposition to protective order [222−1] (Attachments) (rmm) (Entered: 02/11/2004)
229 MINUTE ORDER of 2/11/04 by Hon. Morton Denlow : Filed EEOC's motion to add class members [228−1]. Answer brief to motion due 2/20/04. Hearing on motion to add class members [228−1] set for 10:00 a.m. on 2/23/04. Motion hearing held and continued to 2/13/04 at 9:00 a.m. on plaintiff EEOC's emergency motion for a protective order [222−1]. Testimony of Daniel Hostetler. Notices mailed by judge's staff (rmm) (Entered: 02/12/2004)
232 MOTION by Edward J Moran for leave to withdraw as counsel for plaintiff−intervenor Marion G. Townson ; Notice (rmm) (Entered: 02/23/2004)
230 MINUTE ORDER of 2/13/04 by Hon. Morton Denlow: Motion hearing held on plaintiff EEOC's emergency motion for a protective order. Testimony of John Burgess. For the reasons stated in open court, plaintiff EEOC's emergency motion for a protective order is denied [222−1]. Notices mailed by judge's staff (rmm) (Entered:

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 20 of 66

02/17/2004 02/17/2004 02/19/2004 02/20/2004 02/20/2004 02/23/2004
02/24/2004 02/27/2004 02/27/2004 03/01/2004 03/03/2004 03/04/2004 03/05/2004 03/05/2004 03/08/2004
03/12/2004

02/17/2004)
231 SUPPLEMENTAL MEMORANDUM by EEOC in support of EEOC's motion to add class members [228−1] and response; Notice (rmm) (Entered: 02/19/2004)
231 RESPONSE by EEOC to IPA's motion to bar with supplemental memorandum; Notice (rmm) (Entered: 02/19/2004)
234 MINUTE ORDER of 2/19/04 by Hon. Joan B. Gottschall : Motion by Edward J. Moran for leave to withdraw as counsel for plaintiff−intervenor Marion G. Townson is granted [232−1]. Mailed notice (rmm) (Entered: 02/23/2004)
233 RESPONSE by Intl Profit Assc Inc to EEOC's motion to add claimants [228−1] (Attachments) (rmm) (Entered: 02/23/2004)
235 SUPPLEMENTAL RESPONSE by EEOC to IPA's motion to compel Andrew Daley deposition answers and production of privileged documents [205−1] (Attachments); Notice (rmm) (Entered: 02/23/2004)
237 MINUTE ORDER of 2/23/04 by Hon. Morton Denlow: Motion hearing held. Plaintiff's motion to add class members is granted [228−1]. Defendant's motion to bar testimony of witnesses disclosed after discovery cutoff [236−1], or reopen discovery [236−2] is granted in part and denied in part. Defendant's motion for sanctions against the EEOC for deposition and discovery misconduct is denied [194−1]. Plaintiff's motion to compel the production of documents and further deposition of Andrew Daley [205−1] is taken under advisement. A ruling shall be entered on or before 3/5/04 by mail [205−1]. Defendant's motion to approve direct communication for settlement purposes between International Profit Associates, Inc. and Claimants [214−1] is granted subject to the completion of a settlement conference. Settlement conference set for 10:00 a.m. on 3/3/04. EEOC to file an amended complaint on or before 3/1/04. Defendant to answer on or before 3/15/04. (See reverse of minute order.) Notices mailed by judge's staff (rmm) (Entered: 02/25/2004)
238 ATTORNEY APPEARANCE for pro se intervenor Marian Townson (rmm) (Entered: 02/25/2004)
239 DECLARATION of EEOC Chair Cari M. Dominguez (Attachments); Notice (rmm) (Entered: 03/01/2004)
241 MOTION by Intl Profit Assc Inc to compel regarding EEOC's responses to contention interrogatories (Attachments); Notice (rmm) (Entered: 03/04/2004)
240 FIRST AMENDED COMPLAINT [1−1] by plaintiff EEOC; jury trial demand; Notice (rmm) (Entered: 03/02/2004)
SCHEDULE set on 3/3/04 by Hon. Morton Denlow : Settlement conference held. Progress made. Status hearing set to 10:00 3/23/04. Mailed notice (dmk) (Entered: 03/04/2004)
242 MINUTE ORDER of 3/4/04 by Hon. Morton Denlow: Defendant's motion to compel regarding EEOC's responses to contention interrogatories is granted [241−1]. Parties are to engage in Rule 37 Conference on or before 3/10/04. Notices mailed by judge's staff (rmm) (Entered: 03/04/2004)
243 AGREED MOTION by defendant Intl Profit Assc Inc to reschedule dates previously set by the court ; Notice (rmm) (Entered: 03/09/2004)
244 STIPULATION (rmm) (Entered: 03/09/2004)
245 MINUTE ORDER of 3/8/04 by Hon. Joan B. Gottschall : The parties' March 5, 2004 agreed motion to reschedule dates previously set by the court is granted [243−1]. All proceedings in this case shall be stayed for a period commencing March 3, 2004 and ending on April 5, 2004. To facilitate settlement discussions between the parties, the court enters the schedule contained in the parties' March 5, 2004 stipulation rescheduling certain pending court deadlines. Notices mailed by judge's staff (rmm) (Entered: 03/10/2004)
246 MINUTE ORDER of 3/12/04 by Hon. Morton Denlow: Defendant's motion to compel [205−1] documents and the deposition of Andrew Daley related to those documents is

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 21 of 66

03/19/2004 03/23/2004 03/25/2004
03/29/2004 04/02/2004 04/02/2004 04/06/2004
04/08/2004 04/12/2004 04/12/2004
04/21/2004 05/13/2004 05/27/2004
06/07/2004 06/08/2004

denied. (See reverse of minute order.) Notices mailed by judge's staff (rmm) (Entered: 03/15/2004)
247 AGREED MOTION by defendant to extend time for objections to Magistrate Judge Denlow's March 12, 2004 order (Attachment); Notice (rmm) (Entered: 03/30/2004)
SCHEDULE set on 3/23/04 by Hon. Morton Denlow : Status hearing held and continued to 10:00 4/13/04 . Mailed notice (mmm) (Entered: 03/23/2004)
248 MINUTE ORDER of 3/25/04 by Hon. Joan B. Gottschall : AGREED motion by the parties to extend time for objections to Magistrate Judge Denlow's March 12, 2004 order is granted [247−1]. Pursuant to the parties' stipulation, any and all objections with respect to the order of Magistrate Judge Morton Denlow entered on March 12, 2004 shall be filed on or before 4/19/04. Mailed notice (rmm) (Entered: 03/30/2004)
SCHEDULE set on 3/29/04 by Hon. Morton Denlow : Status hearing reset to 10:00 4/15/04 on request of the parties. Status hearing set for 4/13/04 is stricken. Mailed notice (dmk) (Entered: 03/29/2004)
253 AGREED MOTION by Intl Profit Assc Inc to reschedule dates previously set by the court (rmm) (Entered: 04/15/2004)
254 JOINT STIPULATION (rmm) (Entered: 04/15/2004)
249 TRANSCRIPT of proceedings for the following date(s): 11/20/01, 12/20/01, 1/9/02, 2/28/02, 5/1/02, 8/12/02, 7/9/02, 7/17/02, 2/12/03, 2/24/03, 3/3/03, 6/9/03, 10/29/03, 11/12/03, 1/5/04 before Honorable Morton Denlow (15 vols: 249−1 through 249−15) (rmm) (Entered: 04/07/2004)
251 AGREED MOTION by defendant to reschedule dates previously set by the court (Attachments); Notice (rmm) (Entered: 04/13/2004)
250 TRANSCRIPT of proceedings for the following date(s): 2/23/04 Before Honorable Morton Denlow (rmm) (Entered: 04/12/2004)
252 MINUTE ORDER of 4/12/04 by Hon. Morton Denlow : Status hearing held and continued to 5/13/04 at 10:00 a.m. Parties agreed motion to reschedule is granted [251−1]. The Court adopts the dates in the joint stipulation filed 4/8/04, including that the stay of proceedings in this cause be extended through and including 5/7/04. Status hearing set for 4/15/04 is stricken. Notices mailed by judge's staff (rmm) (Entered: 04/13/2004)
255 ATTORNEY APPEARANCE for intervenor plaintiff Marian Townson by Laurie J Wasserman and Carol G. Silverman (Attachment) (rmm) (Entered: 04/22/2004)
SCHEDULE set on 5/13/04 by Hon. Morton Denlow : Status hearing held. Settlement conference set for 10:30 5/27/04 . Mailed notice (dmk) (Entered: 05/13/2004)
256 MINUTE ORDER of 5/27/04 by Hon. Morton Denlow : Status hearing set for 6/8/2004 at 10:00 a.m. Settlement conference held. Substantial progress made. Parties are to continue to work to finalize form of consent decree and to discuss final settlement terms. The stay of proceedings is extended through and including 6/8/2004 including a stay to reschedule date previous set by the Court. Notices mailed by judge's staff (rmm) (Entered: 06/01/2004)
265 RESPONSE by plaintiff EEOC to defendant IPA's objections to Magistrate Judge Denlow's order dated 2/23/2004 to bifurcate the trial [258−1] (Attachments); Notice (rmm) (Entered: 07/08/2004)
257 MINUTE ORDER of 6/8/04 by Hon. Morton Denlow : Status hearing held and continued to 8/17/2004 at 10:00 a.m. Parties have reported no settlement has been reached. Objections to Judge Denlow's order of 2/23/2004 and Judge Denlow's order of 3/12/2004 to be filed with Judge Gottschall on or before 6/22/2004. International Profit Associates, Inc.'s answer to amended complaint due on or by 7/6/2004. International Profit Associates, Inc.'s expert reports due on or by 8/9/2004. International Profit Associates, Inc.'s expert deposition on or by 8/31/2004. Notices mailed by judge's staff (rmm) (Entered: 06/09/2004)

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06/22/2004 06/22/2004 06/22/2004 06/28/2004 06/28/2004 06/28/2004 07/02/2004 07/06/2004 07/06/2004 07/07/2004 07/08/2004 07/08/2004 07/12/2004 07/12/2004 07/14/2004 07/15/2004
07/15/2004 07/22/2004 08/02/2004 08/04/2004

258 OBJECTIONS by defendant Intl Profit Assc Inc to bifurcation portion of Magistrate Judge's order dated 2/23/2004 (Attachments); Notice (rmm) (Entered: 06/23/2004)
259 OBJECTIONS by defendant Intl Profit Assc Inc to Magistrate Judge Denlow's order dated 2/23/2004 denying IPA's motion for sanctions (Attachments); Notice (rmm) (Entered: 06/23/2004)
260 OBJECTIONS by plaintiff EEOC to Magistrate Judge's order granting defendant's motion to approve direct communication for settlement purposes between International Profit Associates and claimants (Attachments); Notice (rmm) (Entered: 06/23/2004)
261 RESPONSE by defendant Intl Profit Assc Inc to objection to Magistrate Judge Denlow's orders allowing involvement of individual claimants in the settlement process [260−1]; Notice. (jmp) (Entered: 06/29/2004)
262 TRIAL EXHIBITS by defendant (Attachments); Notice. (jmp) (Entered: 06/29/2004)
263 MINUTE ORDER of 6/28/04 by Hon. Joan B. Gottschall : Responses to filed objections to Magistrate Judge Denlow's orders having been filed 06/22/04, are due on or before 07/07/04. Mailed notice (jmp) (Entered: 06/29/2004)
271 MOTION by Intl Profit Assc Inc to compel answers to contention interrogatories (Attachments); Notice (rmm) (Entered: 07/15/2004)
264 ANSWER by defendant Intl Profit Assc Inc to EEOC's first amended complaint [240−1]; Notice (rmm) (Entered: 07/08/2004)
273 MOTION by Intl Profit Assc Inc to strike portions of EEOC's first amended complaint (Attachments); Notice (rmm) (Entered: 07/16/2004)
266 RESPONSE by plaintiff EEOC to defendant AIP's objections to Magistrate Judge Denlow's order dated 2/23/2004 denying IPA's motion for sanctions [259−1] (Attachments) (rmm) (Entered: 07/08/2004)
267 REPLY by defendant in further support of its objection to Magistrate Judge Denlow's 2/23/04 order bifurcating the trial; Notice. (emd) (Entered: 07/12/2004)
268 REPLY by defendant in further support of its objection to Magistrate Judge Denlow's 2/23/04 order denying IPA's motion for sanctions; (Attachment) Notice. (emd) (Entered: 07/12/2004)
269 TRANSCRIPT of proceedings for the following date(s): Held on 02/13/04 before Honorable Morton Denlow (rbf) (Entered: 07/13/2004)
270 RESPONSE by plaintiff to defendant IPA's motion to compel answers to contention interrogatories (Attachments); Notice. (hp) (Entered: 07/13/2004)
272 MINUTE ORDER of 7/14/04 by Hon. Morton Denlow: Motion hearing held. Defendant's motion to compel answers to contention interrogatories [271−1] is denied in its entirety as stated in open court. Mailed notice (rmm) (Entered: 07/15/2004)
274 MINUTE ORDER of 7/15/04 by Hon. Joan B. Gottschall: Filed International Profit Associates, Inc.'s motion to strike portions of EEOC's first amended complaint [273−1]. Answer brief to motion due 8/5/2004. Reply to answer brief due 8/16/2004. Ruling will be by mail. Mailed notice (rmm) (Entered: 07/16/2004)
275 TRANSCRIPT of proceedings for the following date(s): 12/10/03, 12/22/03, 2/11/04, 2/13/04 before Honorable Morton Denlow. (4 vols: 275−1 through 275−2) (rmm) (Entered: 07/16/2004)
276 TRANSCRIPT of proceedings for the following date(s): 7/9/2002, 11/26/2003, 1/28/2004 before Honorable Morton Denlow (Attachments) (3 vols: 276−1, 276−2, 276−3) (rmm) (Entered: 07/23/2004)
278 MOTION by defendant Intl Profit Assc Inc to vacate the trial schedule (Attachments); Notice. (lc) (Entered: 08/09/2004)
277 RESPONSE by plaintiff EEOC to IPA's motion to vacate the trial schedule (rmm) (Entered: 08/05/2004)

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08/05/2004
08/05/2004 08/05/2004 08/09/2004
08/12/2004 08/12/2004 08/16/2004 08/17/2004
08/19/2004 08/20/2004
08/23/2004
09/07/2004 09/16/2004 09/17/2004

279 MINUTE ORDER of 8/5/04 by Hon. Joan B. Gottschall : Motion [278−1] is referred to Judge Denlow who will assess the parties' need for additional time and advise this court fo the earliest date on which he believes this case should be ready for trial. Judge Denlow has full authority to vacate dates previously set by this court. Mailed notice (lc) (Entered: 08/09/2004)
281 RESPONSE by plaintiff EEOC to IPA's motion to strike portions of EEOC's first amended complaint [273−1] (Attachments) (rmm) (Entered: 08/12/2004)
286 MOTION by plaintiff for leave to file second amended complaint, instanter (Attachments); Notice (cdy) (Entered: 08/23/2004)
280 REFERRAL ORDER of 8/9/04 Referring to Hon. Morton Denlow from the Hon. Joan B. Gottschall to conduct hearings and enter appropriate orders on the following motion/matter: International Profit Associates, Inc.'s motion to vacate the trial schedule [278−1]. (For further detail see order.) Mailed notice (rmm) (Entered: 08/10/2004)
282 RESPONSE by Intl Profit Assc Inc to EEOC's motion for leave to file second amended complaint, instanter; Notice (rmm) (Entered: 08/13/2004)
284 MOTION by Intl Profit Assc Inc for expedited implementation of Magistrate Judge Denlow's order authorizing direct settlement communications with individual claimants ; Notice (rmm) (Entered: 08/19/2004)
283 REPLY by Intl Profit Assc Inc in support of its motion to strike portions of EEOC's first amended complaint [273−1] (Attachments); Notice (rmm) (Entered: 08/17/2004)
285 MINUTE ORDER of 8/17/04 by Hon. Morton Denlow : Status hearing held and continued to 9/7/2004 at 10:00 a.m. Defendant's motion for expedited implementation of Magistrate Judge Denlow's order authorizing direct settlement communications with individual claimants is denied without prejudice [284−1]. Defendant may proceed to submit proposed communication to EEOC for its reviews and comments. No communications are to be sent direct to the class members prior to Judge Gottschall's ruling on pending objections to the process. Defendant's motion to vacate trial schedule is granted in part and denied in part [278−1]. Motion to vacate the trial date is denied. Defendant's motion to extend dispositive motions is granted to and including 9/16/04. Mailed notice (rmm) (Entered: 08/19/2004)
287 MINUTE ORDER of 8/19/04 by Hon. Joan B. Gottschall: EEOC's motion for leave to file second amended complaint, instanter [286−1] is taken under advisement. Mailed notice (cdy) (Entered: 08/23/2004)
288 MINUTE ORDER of 8/20/04 by Hon. Joan B. Gottschall: Defendant International Profit Associates, Inc.'s objections to bifurcation portion of Magistrate Judge's 02/23/04 [258−1] are sustained. The court has not examined the merits of the Magistrate Judge's order but believes decisions relating to the actual conduct of the trial should be made by the trial judge, once it is clear what issues will actually be tried. This order is without prejudice to reconsideration of the propriety of bifurcation at a later time. Mailed notice (cdy) (Entered: 08/23/2004)
289 MINUTE ORDER of 8/23/04 by Hon. Morton Denlow : Ordered entered 8/17/04 is amended by deleting "Defendant's motion to extend dispositive motions is granted to and including 9/16/04" and inserting in its stead the following: The Court grants an extension for filing dispositive motions to and including 10/18/04, responses thereto shall be filed by 11/15/04 and replies thereto shall be filed by 11/29/04. Order to stand in all other respects. Dispositive motions deadline 10/18/04. Notices mailed by judge's staff (rmm) (Entered: 08/24/2004)
SCHEDULE set on 9/7/04 by Hon. Morton Denlow : Status hearing set to 10:00 10/7/04. Mailed notice (dmk) (Entered: 09/07/2004)
291 MOTION by defendant Intl Profit Assc Inc to strike alleged class member , and for other relief ; Notice of motion. (rbf) (Entered: 09/21/2004)
290 RESPONSE by plaintiff to IPA's motion to strike [273−1] (eav) (Entered: 09/20/2004)

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09/20/2004
09/23/2004 09/24/2004 09/27/2004
09/30/2004 09/30/2004 10/05/2004 10/07/2004
10/07/2004 10/07/2004 10/12/2004

292 MINUTE ORDER of 9/20/04 by Hon. Morton Denlow : Motion hearing on defendant International Associates, Inc.'s motion to strike alleged class members and for other relief. Defendant International Profit Associates, Inc.'s motion to strike alleged class member [291−1] and for other relief [291−2] is granted in part and denied in part as stated in open court. Plaintiff T.D. is to appear for deposition on or before 10/01/04 or be stricken from the class. Plaintiff is to advise defendant by Wednesday, 09/22/04, as to a firm date for T.D.'s deposition. Defendant has until 10/13/04 to decide whether they wish to redepose plaintiff N.B. on issues disclosed for the first time during questions of EEOC counsel at N.B.'s deposition. Notice mailed by judge's staff. (rbf) (Entered: 09/21/2004)
294 EMERGENCY MOTION by defendant Intl Profit Assc Inc for sanctions ; Notice. (vmj) (Entered: 09/29/2004)
293 RESPONSE by plaintiff to International Profit Associate Inc.'s emergency motion for sanctions. (air) (Entered: 09/27/2004)
295 MINUTE ORDER of 9/27/04 by Hon. Morton Denlow: Motion hearing held on defendant's emergency motion for sanctions. Said motion for sanctions is granted in part, denied in part [294−1] and briefed in part as follows: EEOC is to direct BD to determine whether the e−mails are still there and, if so, to produce them to the defendant or else file an affidavit explaining they they no longer exist. EEOC is to provide defendant with an explanation of how the pay records support BD's claim for sexual harassment. Defendant's request for BD to appear for further deposition is denied without prejudice pending the outcome of her search for the e−mails. EEOC is reminded that they have a continuing obligation to make their best effort to produce documents as they are received, but no later than 7 days prior to depositions. Section C of motion for sanctions is briefed as follows: Response due 10/4/04; Reply due 10/12/04; Ruling by mail by 10/26/04 on the issue of whether the attorney−client privilege applies to communications between the EEOC and the class plaintiffs regarding their obligation to search for and produce documents. Notices mailed by judge's staff (vmj) (Entered: 09/29/2004)
296 MOTION by plaintiff for a protective order (Attachments); Notice (rmm) (Entered: 10/08/2004)
297 MOTION by EEOC to compel answers to EEOC's interrogatory No. , and EEOC's eighteenth request for production of documents (Attachments) (rmm) (Entered: 10/08/2004)
298 MOTION by plaintiff EEOC for clarification of the court's 9/20/04 order (Attachments); Notice (rmm) (Entered: 10/08/2004)
299 MINUTE ORDER of 10/7/04 by Hon. Morton Denlow : Status hearing held and continued to 12/7/04 at 10:00 a.m. Motion hearing held on EEOC's motion for protective order, EEOC's motion to compel answers to EEOC's interrogatory No. 20 and EEOC's Eighteenth request for production of documents and EEOC's motion for clarification of the Court's 9/20/04 order. EEOC's motion for a protective order [296−1] is denied without prejudice based on the representation of defendant's counsel that the questions referred to in the motion will not be asked in future depositions. EEOC's motion to compel answers to EEOC's interrogatory No. 20 [297−1] and EEOC's eighteenth request for production of documents [297−2] is denied based on the representation of defendant's counsel that they intend to produce the 2003 financial statements and tax returns to the EEOC on or by 10/21/04. EEOC's motion for clarification of the court's 9/20/04 order [298−1] is granted in part and denied in part as stated in open court. Mailed notice (rmm) (Entered: 10/08/2004)
300 MINUTE ORDER of 10/7/04 by Hon. Joan B. Gottschall : For the reasons given in the attached order, Magistrate Judge Denlow's order denying PIA's motion for sanctions is adopted. (Entered order.) Mailed notice (rmm) (Entered: 10/08/2004)
301 MINUTE ORDER of 10/7/04 by Hon. Joan B. Gottschall : For the reasons given in the attached order, EEOC's objections are sustained. (Entered order.) Mailed notice (rmm) (Entered: 10/08/2004)
302 MOTION by defendant International Profit Associates, Inc., for extension of time to file dispositive motions (Attachment); Notice. (hp) (Entered: 10/15/2004)

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10/12/2004 10/12/2004 10/14/2004 10/14/2004
10/18/2004 10/21/2004 10/21/2004
10/21/2004 10/21/2004 10/25/2004
10/25/2004 11/01/2004 11/02/2004 11/02/2004 11/02/2004 11/03/2004

307 MOTION by defendant to strike alleged class member "L.B." ; Notice (cdy) (Entered: 10/26/2004)
308 MOTION by defendant to compel documents regarding claimant N.B.'s conviction of identitiy theft (cdy) (Entered: 10/26/2004)
ORAL MOTION by defendant Intl Profit Assc Inc to vacate date for filing of final pretrial order (hp) (Entered: 10/15/2004)
303 MINUTE ORDER of 10/14/04 by Hon. Joan B. Gottschall : Status hearing is set for 12/15/04 at 9:30 a.m. Defendant, International Profit Associates, Inc.'s motion for extension of time to file dispositive motions to forty−five days after a decision by this Court on IPA's motion to strike allegations from EEOC's amended complaint or forty−five days after the completion of discovery, whichever is later is granted. [302−1] Oral motion by defendant to vacate date for filing of final pretrial order (12/17/04) is granted. [0−1] Mailed notice (hp) (Entered: 10/15/2004)
304 MOTION by plaintiff for reconsideration of the Court's October 14, 2004 Order (Attachment); Notice. (hp) (Entered: 10/22/2004)
305 RESPONSE by plaintiff EEOC to defendant IPA's motion to compel documents regarding N.B.'s conviction (Attachment). (hp) (Entered: 10/22/2004)
306 MINUTE ORDER of 10/21/04 by Hon. Joan B. Gottschall : EEOC'S motion for reconsideration of the Court's 10/14/04 is granted to the extent that extension of time to file dispositive motions is reduced from forty−five (45) to thirty (30) days after a decision by this court on IPA's motion to strike allegations from EEOC's amended complaint and time for completion of discovery is reduced from forty−five (45) to thirty (30) days whichever is later. [273−1] [303−1] [304−1] Mailed notice (hp) (Entered: 10/22/2004)
309 MOTION by plaintiff to compel defendant to produce sexual harassment complaints (Attachments); Notice (cdy) (Entered: 10/26/2004)
310 MOTION by plaintiff to set a date by which defendant msut complete all depositions ; Notice (cdy) (Entered: 10/26/2004)
311 MINUTE ORDER of 10/25/04 by Hon. Morton Denlow: Status hearing re−set for 12/14/04 at 10:00 a.m. Motion hearing held. EEOC's motion to compel defendant to produce sexual harassment complaints [309−1], is granted. Defendant to advise plaintiff if they have any sexual harassment complaints and if so to produce documents on or by 11/18/04. EEOC's motion to set a date by which defendant msut complete all depositions [310−1], is denied for reasons stated in open court. Defendant's motion to strike alleged Class Member L.B. is denied. Plaintiff L.B. is to appear for her deposition on or by 12/01/04 or be barred from being a member of the class. Defendant's motion to compel documents regarding claimant N.B.'s conviction of identitiy theft [308−1], is granted to the extent if N.B. has documents they are to be produced to defendant on or by 11/08/0−4. Status hearing set for 12/07/04 is stricken. Mailed notice (cdy) (Entered: 10/26/2004)
317 MOTION by Intl Profit Assc Inc to vacate the 2/7/05 trial date and to reset status date ; Notice. (vmj) (Entered: 11/22/2004)
318 MOTION by plaintiff to set a date by which defendant must complete all depositions ; Notice. (vmj) (Entered: 11/22/2004)
313 RESPONSE by defendant to EECO's motion to set a date by which defendant must complete all depositions; Notice. (ntf) (Entered: 11/05/2004)
319 NOTICE of withdrawal of EEOC's motion to set a date by which defendant must complete all depositions by plaintiff. (vmj) (Entered: 11/22/2004)
320 MOTION by plaintiff pursuant to FRCP 72 requesting the court modify or set aside the Magistrate Judge's 10/25/04 order (Attachments); Notice. (vmj) (Entered: 11/22/2004)
312 MINUTE ORDER of 11/3/04 by Hon. Morton Denlow : Part D of IPA's emergency motion for sanctions is granted [294−1] and B.D. will be required to answer these questions in writing as an addendum to her deposition without the necessary for a

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11/04/2004
11/04/2004
11/10/2004 11/16/2004 11/18/2004 12/14/2004 12/16/2004 12/16/2004 12/20/2004
12/21/2004 01/12/2005 01/12/2005 01/14/2005 01/14/2005

second deposition No monetary sanctions will be awarded. (See reverse of minute order.) Mailed notice (jmp) (Entered: 11/04/2004)
314 MINUTE ORDER of 11/4/04 by Hon. Joan B. Gottschall: For the reasons stated in the attached order, defendant's motion to strike portions of EEOC's first amended complaint [273−1], is granted in part and denied on part. The EEOC's motion for leave to file second amended complaint, [286−1], is granted. (Entered Order.) Mailed notice (cdy) (Entered: 11/08/2004)
321 MINUTE ORDER of 11/4/04 by Hon. Joan B. Gottschall: Status hearing set for 12/15/04 is stricken and reset for 1/12/05 at 9:30 a.m. Jury trial set for 2/7/05 is stricken and reset for 4/4/05 at 9:00 a.m. International Profit Associates, Inc.'s motion to vacate the 2/7/05 trial date [317−1] and reset status date [317−2] is granted. Plaintiff EEOC's motion to set a date by which defendant must complete all depositions is hereby withdrawn via notice filed by movant [318−1]. Plaintiff EEOC's motion pursuant to FRCP 72 requesting the court modify or set aside the Magistrate Judge's 10/25/04 order is denied [320−1]. Plaintiff to file brief submission re: bifurcating the trial by 11/12/04. Defendant to respond by 11/19/04. No reply is required. Pretrial conference set for 1/19/05 is stricken and reset to 9:00 a.m. on 3/11/05 . Mailed notice (vmj) (Entered: 11/22/2004)
315 MOTION by plaintiff to bifurcate the issues of liability and punitive damages from the issue of compensatory damages for individual class members ; Notice of motion. (rbf) (Entered: 11/16/2004)
316 TRANSCRIPT of proceedings for the following date(s): 9/20/04 Before Honorable Morton Denlow. (am) (Entered: 11/18/2004)
322 RESPONSE by defendant Intl Profit Assc Inc to EEOC's motion to bifurcate trial [315−1]; Notice. (vmj) (Entered: 11/22/2004)
SCHEDULE set on 12/14/04 by Hon. Morton Denlow : Status hearing held and continued to 10:00 3/10/05 . All fact discovery to be completed on or by 1/31/05. Expert witness schedule, if any, should be addressed before Judge Gottschall. Mailed notice (dmk) (Entered: 12/14/2004)
323 ANSWER by defendant Intl Profit Assc Inc to EEOC's second amended complaint [240−1]; Notice. (gcy) (Entered: 12/21/2004)
324 MOTION by Intl Profit Assc Inc to strike claimant "A.S." from the purported class , and for fees and costs (Attachment); Notice (rmm) Modified on 12/22/2004 (Entered: 12/22/2004)
325 MINUTE ORDER of 12/20/04 by Hon. Morton Denlow : Motion hearing held on defendant's motion to strike Claimant A.S. from the purported class and for fees and costs. Defendant's motion to strike claimant "A.S." from the purported class and for fees and costs [324−1], [324−2] is denied without prejudice to seeking dismissal of the Claimant on the merits pursuant to a motion for summary judgment or such other procedure that Judge Gottschall may adopt. Mailed notice (rmm) (Entered: 12/22/2004)
326 TRANSCRIPT of proceedings for the following date(s): 10/25/04 before Honorable Morton Denlow. (rmm) (Entered: 12/22/2004)
327 MINUTE ORDER of 1/12/05 by Hon. Joan B. Gottschall : Status hearing held. On the court's own motion, jury trial set for 4/4/05 at 9:00 a.m. and pretrial conference set for 3/11/05 at 9:00 a.m. are vacated. Mailed notice (rmm) (Entered: 01/13/2005)
328 TRANSCRIPT of proceedings for the following date(s): 11/14/04 Before Honorable Morton Denlow (rmm) (Entered: 01/13/2005)
329 MOTION by Defendant International Profit Associates, Inc. to enforce this court?s procedural order of 9/20/04 and for other relief regarding the discovery deadline; Exhibits.(rmm, ) Modified on 4/4/2006 (ym, ). (Entered: 01/20/2005)
330 NOTICE of Motion by International Profit Associates, Inc. for presentment of MOTION to enforce and for other relief 329 before Honorable Morton Denlow on 1/19/2005 at 09:15 AM. (rmm, ) Modified on 1/20/2005 (rmm, ). (Entered:

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01/18/2005 01/19/2005
02/04/2005 02/04/2005 02/08/2005 02/09/2005
02/18/2005 02/18/2005 02/22/2005 02/22/2005 02/23/2005 02/23/2005 02/23/2005 02/23/2005 02/23/2005

01/20/2005)
332 RESPONSE by Plaintiff Equal Employment Opportunity Commission to IPA's motion to enforce 9/20/04 order and for other relief (rmm, ) Modified on 1/21/2005 (rmm, ). (Entered: 01/21/2005)
331 MINUTE entry before Judge Morton Denlow : Motion to enforce 329 is granted in part and denied in part as stated in open Court. Motion hearing held on 1/19/2005 regarding motion to enforce and for relief 329 . Discovery ordered closed by 2/14/2005. Final Extension. Status hearing set for 2/15/2005 at 10:00 AM. Status hearing set for 3/10/05 is stricken. Mailed notice. (dmk, ) (Entered: 01/20/2005)
333 MOTION by Defendant International Profit Associates, Inc. to quash subpoenas; Exhibits. (las, ) Modified on 12/14/2005 (ym, ). (Entered: 02/07/2005)
334 NOTICE of Motion by Myron M. Cherry for presentment of International Profit's motion to quash 333 before Honorable Morton Denlow on 2/9/2005 at 09:15 AM. (las, ) (Entered: 02/07/2005)
335 RESPONSE by plaintiff EEOC to Defendant International Profit Associates, Inc.'s MOTION to quash subpoenas 333 . (lcw, Lakisha) (Entered: 02/10/2005)
336 MINUTE entry before Judge Morton Denlow : Motion hearing held on IPA's motion to quash subpoenas 333 is granted in part and denied in part as follows: IPA's motion to quash subpoena is denied with respect to Olga Tychina. Parties are to set the deposition at a mutually convenient date. IPA's motion to quash subpoena with is granted respect to Suzanne Edwards unless plaintiff can demonstrate that the Suzanne Edwards currently employed by defendant is the same person referred to in Exhibit F of EEOC's response to International Profit Associates, Inc.'s motion to quash subpoenas. Parties are to submit one red lined version of a consent decree indicating areas of agreement and disagreement to Judge Denlow's chambers on or by 2/24/2005. Status hearing reset to 3/1/2005 at 10:00 AM. (rmm, ) Modified on 3/10/2006 (cem, ). (Entered: 02/11/2005)
337 MOTION by Plaintiff Equal Employment Opportunity Commission to compel the depositions of Suzanne Edwards and Olga Tychina; Exhibits. (gma, ) Modified on 4/10/2006 (ym, ). (Entered: 02/22/2005)
338 NOTICE of Motion by Ann M Henry for presentment of MOTION by Plaintiff Equal Employment Opportunity Commission to compel the depositions of Suzanne Edwards and Olga Tychina 337 before Honorable Morton Denlow on 2/23/2005 at 09:15 AM. (gma, ) (Entered: 02/22/2005)
344 RESPONSE to EEOC's motion to compel by International Profit Associates, Inc.; Notice (rmm, ) Modified on 2/25/2005 (rmm, ). (Entered: 02/25/2005)
345 Duplicate of document #344 (rmm, ) Modified on 6/22/2006 (ef, ). (Entered: 02/25/2005)
339 RENEWED MOTION by Defendant International Profit Associates, Inc. for sanctions against EEOC for discovery misconduct (gma, ) (Entered: 02/23/2005)
340 EXHIBIT AA by Defendant International Profit Associates, Inc. to RENEWED MOTION by Defendant International Profit Associates, Inc. for sanctions against EEOC for discovery misconduct 339 (RESTRICTED)(gma, ) (Entered: 02/23/2005)
341 MOTION by Defendant International Profit Associates, Inc. for leave to file brief in excess of fifteen pages (gma, ) (Entered: 02/23/2005)
342 NOTICE of Motion by Myron M. Cherry for presentment of MOTION by Defendant International Profit Associates, Inc. for leave to file brief in excess of fifteen pages 341 before Honorable Joan B. Gottschall on 3/10/2005 at 09:30 AM. (gma, ) (Entered: 02/23/2005)
343 MINUTE entry before Judge Morton Denlow : Motion hearing held on EEOC's motion to compel the depositions of Suzanne Edwards and Olga Tychina 337 . EEOC's motion to compel the depositions of Suzanne Edwards and Olga Tychina 337 is denied in part and granted in part. The deposition of Olga Tychina is to be taken on 3/14/05 or sooner as agreed to by the parties. The subpoena as to Suzanne Edwards is quashed.

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 28 of 66

02/28/2005 02/28/2005 03/01/2005 03/02/2005 03/03/2005
03/11/2005 03/18/2005 03/24/2005 03/29/2005
04/14/2005 04/18/2005 04/18/2005
04/21/2005 05/06/2005 05/06/2005 05/11/2005

All discovery is closed Defendant's request for sanctions is denied. Defendant's oral request to extend the time for submission of the red line version of a consent decree to 3/17/05 is granted. Status hearing reset to 3/29/05 at 10:00 a.m. Status hearing set for 3/1/05 is stricken. Judicial staff mailed notice (dmk, ) (Entered: 02/24/2005)
346 MOTION by Plaintiff Equal Employment Opportunity Commission to set trial date (gma, ) (Entered: 03/01/2005)
347 NOTICE of Motion by Jeanne B. Szromba for presentment MOTION by Plaintiff Equal Employment Opportunity Commission to set trial date 346 before Honorable Joan B. Gottschall on 3/3/2005 at 09:30 AM. (gma, ) (Entered: 03/01/2005)
348 RESPONSE by International Profit Associates, Inc. to EEOC's motion to set trial date 346 ; Notice; Exhibit A. (rmm, ) Modified on 6/23/2006 (ym, ). (Entered: 03/03/2005)
350 REPLY by plaintiff Equal Employment Opportunity Commission in support of its motion to set trial date ; Notice. (mjc, ) (Entered: 03/07/2005)
349 MINUTE entry before Judge Joan B. Gottschall: Motion hearing held. Plaintiff's motion to set trial date 346 is denied without prejudice. Briefing scheulde as to defendant's renewed motion for sanctions against EEOC for discovery misconduct 339 is as follows: Plaintiff's response by 03/24/05. Defendant's reply in support by 04/14/05. Defendant's motion for leave to file brief in excess of fifteen pages 341 is granted. Any dispositive motions shall be filed no later than 06/15/05. Responses are due by 07/15/05. Replies are due by 08/15/05. Ruling by mail. No appearance is required on 03/10/05 at 9:30 a.m. Mailed notice (ntf, ) (Entered: 03/07/2005)
351 OBJECTIONS to the Magistrate Judge's 2/23/2005 order denying EEOC's motion to compel the deposition of Suzanne Edwards by plaintiff EEOC; Notice (rmm, ) (Entered: 03/14/2005)
352 RESPONSE by Defendant International Profit Associates, Inc. to EEOC's objection to Magistrate Judge Denlow's 02/23/05 order; Notice. (lxs, ) (Entered: 03/22/2005)
353 RESPONSE by plaintiff EEOC to defendant IPA's renewed motion for sanctions against EEOC for discovery misconduct; Notice (rmm, ) (Entered: 03/28/2005)
354 MINUTE entry before Judge Morton Denlow : Magistrate Judge Status hearing held on 3/29/2005. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Morton Denlow no longer referred to the case. Judicial staff mailed notice (dmk, ) (Entered: 03/29/2005)
357 REPLY by Defendant International Profit Associates, Inc. in further support of its renewed motion for sanctions against EEOC for discovery misconduct; Notice (rmm, ) (Entered: 04/20/2005)
355 MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file sur−reply in opposition to IPA's renewed motion for sanctions (Attachments: # 1 Sur−reply)(gma, ) (Entered: 04/18/2005)
356 NOTICE of Motion by Ann M Henry for presentment of MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file sur−reply in opposition to IPA's renewed motion for sanctions 355 before Honorable Joan B. Gottschall on 4/21/2005 at 09:30 AM. (gma, ) (Entered: 04/18/2005)
358 MINUTE entry before Judge Joan B. Gottschall : Motion for leave to file 355 is granted. No notice (rj, ) (Entered: 04/21/2005)
359 MOTION by Defendant International Profit Associates, Inc. to modify the dispositive motion schedule. (rbf, ) (Entered: 05/09/2005)
360 NOTICE of Motion by Myron M. Cherry for presentment of motion to modify the dispositive motion schedule 359 before Honorable Joan B. Gottschall on 5/12/2005 at 09:30 AM. (rbf, ) (Entered: 05/09/2005)
361 RESPONSE by Equal Employment Opportunity Commission to International Profit Associates, Inc.'s Motion to modify the dispositive motion schedule 359 ; Notice (rmm, ) (Entered: 05/16/2005)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 29 of 66

05/12/2005 05/17/2005 05/17/2005 05/17/2005 05/25/2005
05/25/2005
05/31/2005
05/31/2005 06/16/2005 06/20/2005 06/20/2005
06/23/2005 07/15/2005
07/15/2005
07/15/2005 08/03/2005 08/16/2005

362 MINUTE entry before Judge Joan B. Gottschall :Motion 359 is taken under advisement. No appearance is necessary 5/12/05 at 9:30AM. The motion will be ruled on next week by mail.Mailed notice (rj, ) (Entered: 05/17/2005)
363 MOTION by Defendant for leave to file additional appearance(gma, ) (Entered: 05/18/2005)
364 NOTICE of Motion by Myron M. Cherry for presentment of MOTION by Defendant for leave to file additional appearance 363 before Honorable Joan B. Gottschall on 5/26/2005 at 09:30 AM. (gma, ) (Entered: 05/18/2005)
365 ATTORNEY appearance for defendant International Profit Associates, Inc. by Jacie C Zolna; Notice. (cdy, ) (Entered: 05/25/2005)
366 MINUTE entry before Judge Joan B. Gottschall : Defendant's motion for leave to file additional appearance of Jacie C. Zolna of the law firm Myron M. Cherry & Associates as additional counsel 363 is granted. Mailed notice (eav, ) (Entered: 05/26/2005)
367 MINUTE entry before Judge Joan B. Gottschall : Defendant's motion to modify the dispositive motion schedule [359−1] is granted. Motions are due sixty days after the court's ruling on defendant's renewed motion for sanctions. Plaintiffs are given thirty days to respond, and defendants are given thirty days thereafter to reply. Mailed notice (eav, ) (Entered: 05/26/2005)
368 MINUTE entry before Judge Joan B. Gottschall : Enter order. Defendant'ss renewed for sanctions [339−1] is entered and continued. Defendant shall provide the additional materials requested in this court's 5/31/2005 order within 28 days. Mailed notice (rmm, ) (Entered: 06/14/2005)
369 ORDER Signed by Judge Joan B. Gottschall on 5/31/2005:(rmm, ) (Entered: 06/14/2005)
372 TRANSCRIPT of proceedings for the following dates: 1/29/2005, 2/23/2005; Before the Honorable Morton Denlow (2 vols: 372−1, 372−2) (rmm, ) (Entered: 06/21/2005)
370 MOTION by Defendant International Profit Associates, Inc. for extension of time to provide additional information requested by the court regarding its renewed motion for sanctions against the EEOC (gma, ) (Entered: 06/20/2005)
371 NOTICE of Motion by International Profit Associates, Inc. for presentment of MOTION by Defendant International Profit Associates, Inc. for extension of time to provide additional information requested by the court regarding its renewed motion for sanctions against the EEOC 370 before Honorable Joan B. Gottschall on 6/23/2005 at 09:30 AM. (gma, ) (Entered: 06/20/2005)
373 MINUTE entry before Judge Joan B. Gottschall : Defendant's motion for extension of time to July 15, 2005 to submit the materials requested in the Court's May 31, 2005 Order 370 is granted. Mailed notice (rj, ) (Entered: 06/28/2005)
374 SUPPLEMENTAL EXHIBIT by Defendant International Profit Associates, Inc. to Section I.D. of IPA's Renewed Motion for sanctions (Deposition Excerpts that correspond to Renewed Motion for Sanctions (12 vols: 374−1 through 374−12) (Restricted)(rmm, ) Modified on 7/18/2005 (rmm, ). (Entered: 07/18/2005)
375 TABLE of efforts made to seek relief before Magistrate Judge Denlow with respect to the EEOC's inadequate, inaccurate and incomplete disclosure by International Profit Associates, Inc.; Notice (rmm, ) Modified on 7/18/2005 (rmm, ). (Entered: 07/18/2005)
376 STATEMENT of compliance with the court's 5/31/2005 order by International Profit Associates, Inc. (jmp, ) (Entered: 07/20/2005)
377 RESPONSE by Plaintiff Equal Employment Opportunity Commission to Statement of compliance with the court's 5/31/2005 order 376 (Exhibits); Notice (rmm, ) (Entered: 08/08/2005)
378 REPLY by Defendant International Profit Associates, Inc. in support of its statement of compliance with the Court's 5/31/05 Order 376 ; Notice of filing (eav, ) (Entered:

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09/02/2005 01/26/2006 01/26/2006
02/09/2006 04/25/2006
04/25/2006 05/17/2006
07/05/2006 07/05/2006 07/05/2006 07/05/2006 07/05/2006
07/05/2006 07/05/2006 07/05/2006 07/05/2006 07/05/2006

08/18/2005)
379 MINUTE entry before Judge Joan B. Gottschall : EEOCs motion to bifurcate [315−1] is denied without prejudice for the reasons stated below. Mailed notice (jmm, ) (Entered: 09/06/2005)
380 MOTION by Defendant International Profit Associates, Inc. for leave to file Supplemental Brief in Support of its Renewed Motion for Sanctions Against the EEOC (Brief and Exhibit attached) (Zolna, Jacie) (Entered: 01/26/2006)
381 NOTICE by International Profit Associates, Inc. re MOTION by Defendant International Profit Associates, Inc. for leave to file Supplemental Brief in Support of its Renewed Motion for Sanctions Against the EEOC (Brief and Exhibit attached) 380 (Certificate of Service attached) (Zolna, Jacie) (Entered: 01/26/2006)
382 TRANSCRIPT of proceedings for the following dates: 06/08/2004; Before the Honorable Morton Denlow (hp, ) (Entered: 02/13/2006)
383 MINUTE entry before Judge Joan B. Gottschall : Defendant's Renewed Motion for Sanctions 339 is denied. Defendant's Motion for Leave to File Supplemental Brief 380 is granted. Status is set for Wednesday, May 17, 2006 at 9:30 a.m. [For further detail see separate order.] Mailed notice (hp, ) (Entered: 04/26/2006)
384 ORDER re 383 Signed by Judge Joan B. Gottschall on 4/25/2006:Mailed notice(hp, ) (Entered: 04/26/2006)
385 MINUTE entry before Judge Joan B. Gottschall : Status hearing held on 5/17/2006. Dispositive motions with supporting memoranda are extended and due by 7/5/2006. Status hearing continued to 7/6/2006 at 09:30 AM. Mailed notice (rj, ) (Entered: 05/17/2006)
386 MOTION by Defendant International Profit Associates, Inc. for leave to file its omnibus memorandum of law in support of motions for summary judgment in excess of 15 pages (cdy, ) (Entered: 07/06/2006)
387 MOTION by Defendant International Profit Associates, Inc. for leave to file its motions for summary judgement under seal (cdy, ) (Entered: 07/06/2006)
388 OMNIBUS MEMORANDUM of law by International Profit Associates, Inc. in support of motion for summary judgment (Attachments)(cdy, ) Modified on 10/6/2006 (ym, ). (Entered: 07/06/2006)
389 AFFIDAVIT of JAMES MICHAEL RUDD by International Profit Associates, Inc. in support of motions for summary judgment. (cdy, ) (Entered: 07/06/2006)
390 NOTICE of filing by International Profit Associates, Inc. re MOTION for leave to file its Omnibus memorandum of law in support of its motion for summary judgment 387 , MOTION for leave to file it motion for summary judgment under seal 386 (cdy, ) (Entered: 07/06/2006)
391 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 1, 2, 4, 6, 7, 9, 10, 14 and 15)(Volume 1 of 10) (RESTRICTED). (cdy, ) (Entered: 07/06/2006)
392 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant Nos. 17, 18, 19, 21, 23, 24, 27 and 34 (Volume 2 of 10)(RESTRICTED).(cdy, ) . (Entered: 07/07/2006)
393 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 36, 37, 39, 40, 41, 43, 46, 47 and 48 (Volume 3 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)
394 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 52, 55, 56, 57, 58, 61 and 62 (Volume 4 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)
395 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 65, 67, 68, 69, 72, 76, 77, 78, 80, 81, 85, 86 and 88 (Volume 5 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)

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07/05/2006 07/05/2006 07/05/2006 07/05/2006 07/05/2006 07/06/2006
08/09/2006 08/28/2006 08/28/2006 08/29/2006 08/29/2006 08/31/2006
09/05/2006

396 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 89, 90, 92, 93, 97, 99, 104, 105, 107 and 108 (Volume 6 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)
397 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 112, 113, 115, 123, 129 and 134 (Volume 7 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)
398 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 137, 139, 145, 146, 147, 149, 152, 155, 157 and 161 (Volume 8 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)
399 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 164, 165, 166, 167, 169, 170, 172, 174, 175 and 178 (Volume 9 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)
400 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimants Nos. 179, 180, 183, 186, 187, 188, 189 and 190 (Volume 10 of 10) (RESTRICTED). (cdy, ) (Entered: 07/07/2006)
401 MINUTE entry before Judge Joan B. Gottschall : Status hearing held. The court will consider the motions for summary judgment contained in Volume I of defendant's filing (i.e. claimants 1, 2, 4, 6, 7, 9, 10, 14 and 15). All remaining motions for summary judgment (i.e., those contained in Volumes II−X 392 , 393 , 394 , 395 , 396 , 397 , 398 , 399 , 400 ) are stricken without prejudice and may be reasserted after the court's ruling on the motions for summary judgment contained in Volume I. Defendant is given leave to file as many statements of fact as necessary for the motions contained in Volume I. Defendant also is given leave to file an oversized omnibus brief. Plaintiff is given 60 days to respond; defendant if given 30 days thereafter to reply. The court will hear argument on 8/9/2006 at 02:00 p.m. concerning whether documents must be filed under seal. Mailed notice (cdy, ) (Entered: 07/07/2006)
402 MINUTE entry before Judge Joan B. Gottschall : In court hearing held on 8/9/2006. Parties to submit an agreed protective order as detailed on the record. Mailed notice (rj, ) (Entered: 08/09/2006)
403 MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file excess pages (Szromba, Jeanne) (Entered: 08/28/2006)
404 NOTICE of Motion by Jeanne B. Szromba for presentment of motion for leave to file excess pages 403 before Honorable Joan B. Gottschall on 8/31/2006 at 09:30 AM. (Szromba, Jeanne) (Entered: 08/28/2006)
405 RESPONSE by Defendant International Profit Associates, Inc. to motion for leave to file excess pages 403 (Cherry, Myron) (Entered: 08/29/2006)
406 NOTICE by International Profit Associates, Inc. re Response 405 to motion for leave to file excess pages (Cherry, Myron) (Entered: 08/29/2006)
407 MINUTE entry before Judge Joan B. Gottschall : Plaintiff EEOC has filed a motion to file an oversized brief (31 pages) and to submit 500 separately−numbered statements of additional facts in opposition to summary judgment. The only reason given for seeking 31 pages (that IPA filed a 31 page brief) is equivalent to no reason and the reason given for 500 fact statements is close to as obscure. EEOC should draft its brief and determine whether it needs additional pages, and if so, how many. It should move for leave to file a brief with more fact statements than the rule allows only when and if it can submit its materials to the court for its review; additional statements will be allowed but the court has no intention of giving advance permission for an oppressive−sounding number like 500, without first seeing that a number like this is necessary. MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file excess pages 403 is denied without prejudice to its resubmission when EEOC knows the number of pages it needs, and when the court can see what it intends to submit in terms of additional fact statements. Mailed notice (rj, ) (Entered: 08/31/2006)
408 RESPONSE by Equal Employment Opportunity Commission in Opposition to MOTION by Defendant International Profit Associates, Inc. for summary judgment 391 (Attachments: # 1 Appendix EEOC v. Bemis)(Szromba, Jeanne) (Entered:

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 32 of 66

09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/06/2006 09/06/2006 10/04/2006 10/04/2006 10/05/2006 10/05/2006 10/05/2006 10/12/2006
10/12/2006 10/16/2006 10/16/2006
10/16/2006

09/05/2006)
409 RULE 56 56.1(b)(3)(A) Statement by Equal Employment Opportunity Commission regarding motion for summary judgment 391 (Szromba, Jeanne) (Entered: 09/05/2006)
410 RULE 56 56.1(b)(3)(B) Statement by Equal Employment Opportunity Commission regarding motion for summary judgment 391 (Szromba, Jeanne) (Entered: 09/05/2006)
411 MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file excess pages Instanter (Szromba, Jeanne) (Entered: 09/05/2006)
412 NOTICE by Equal Employment Opportunity Commission re response in opposition to motion 408 , Rule 56 statement 410 , Rule 56 statement 409 , MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file excess pages Instanter 411 (Szromba, Jeanne) (Entered: 09/05/2006)
413 LOCAL RULE 56.1(B)(1) Compendium of EXHIBITS by Plaintiff Equal Employment Opportunity Commission in support of its response to IPA's Motions for summary judgment re 391 410 (Exhibits) (3 Vols: 413−1 thru 413−3)(hp, ) (Entered: 09/11/2006)
414 MINUTE entry before Judge Joan B. Gottschall : EEOC's motion for leave to file instanter an oversize brief and statement of additional facts 411 is granted. Mailed notice (hp, ) (Entered: 09/12/2006)
415 MOTION by Plaintiff Equal Employment Opportunity Commission for protective order (Agreed Motion) (Attachments: # 1 Amended Stipulated Protective Order)(Szromba, Jeanne) (Entered: 10/04/2006)
416 NOTICE of Motion by Jeanne B. Szromba for presentment of motion for protective order 415 before Honorable Joan B. Gottschall on 10/12/2006 at 09:30 AM. (Szromba, Jeanne) (Entered: 10/04/2006)
417 REPLY by Defendant International Profit Associates, Inc. to response in opposition to motion 408 , motion for summary judgment 391 on Claimants Nos. 1, 2, 4, 6, 7, 9, 10, 14 and 15 (Attachments: # 1 Exhibit)(Cherry, Myron) (Entered: 10/05/2006)
418 MOTION by Defendant International Profit Associates, Inc. for leave to file excess pages its Reply Brief in Support of Summary Judgment (Cherry, Myron) (Entered: 10/05/2006)
419 NOTICE by International Profit Associates, Inc. re reply 417 , MOTION by Defendant International Profit Associates, Inc. for leave to file excess pages its Reply Brief in Support of Summary Judgment 418 (Cherry, Myron) (Entered: 10/05/2006)
423 MINUTE entry before Judge Joan B. Gottschall : Agreed motion by plaintiff Equal Employment Opportunity Commission for entry of amended stipulation protective order 415 is granted. Enter Amended Stipulated Protective Order. Motion by defendant International Profit Associates, Inc., for leave to file in excess of fifteen pages its reply brief in support of summary judgment 418 is granted. (For further detail see separate order.) Mailed notice (hp, ) (Entered: 10/17/2006)
424 AMENDED STIPULATED PROTECTIVE Order Signed by Judge Joan B. Gottschall on 10/12/2006:Mailed notice(hp, ) (Entered: 10/17/2006)
420 MOTION by Plaintiff Equal Employment Opportunity Commission to file instanter EEOC?S MOTION FOR LEAVE TO FILE, INSTANTER, A SUR−REPLY IN OPPOSITION TO IPA?S MOTIONS FOR SUMMARY JUDGMENT (Smason, Diane) (Entered: 10/16/2006)
421 Notice of MOTION FOR LEAVE TO FILE, INSTANTER, A SUR−REPLY IN OPPOSITION TO IPA?S MOTIONS FOR SUMMARY JUDGMENT NOTICE of Motion by Diane Ilene Smason for presentment of motion to file instanter 420 before Honorable Joan B. Gottschall on 10/26/2006 at 09:30 AM. (Smason, Diane) (Entered: 10/16/2006)
422 SUR−REPLY by Plaintiff Equal Employment Opportunity Commission EEOC?S SUR−REPLY IN RESPONSE TO IPA?S MOTIONS FOR SUMMARY JUDGMENT (Smason, Diane) (Entered: 10/16/2006)

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10/26/2006 10/26/2006 10/26/2006 03/16/2007
03/16/2007 05/07/2007 05/29/2007
05/29/2007 05/30/2007 06/06/2007 06/06/2007 06/07/2007
06/07/2007 06/21/2007 10/23/2007
10/23/2007 10/23/2007

425 RESPONSE by Defendant International Profit Associates, Inc. to sur−reply 422 Regarding Summary Judgment (Cherry, Myron) (Entered: 10/26/2006)
426 NOTICE by International Profit Associates, Inc. re Response 425 to the EEOC's Sur−Reply Regarding Summary Judgment (Cherry, Myron) (Entered: 10/26/2006)
427 MINUTE entry before Judge Joan B. Gottschall : EEOC's Motion for leave to file instanter a sur−reply 422 in opposition to IPA's motions for summary judgment 420 is granted. Mailed notice (rj, ) (Entered: 10/30/2006)
428 MINUTE entry before Judge Joan B. Gottschall : For the reasons stated in the attached opinion, defendants motions for summary judgment 391 are denied without prejudice and plaintiff's objections to the magistrate judge's February 23, 2005, order 351 are granted. Plaintiffs motion to compel 337 is granted, and plaintiff is given thirty days to depose Suzanne Edwards. The parties are ordered to submit supplemental briefs in accordance with the attached opinion; plaintiff must file by May 7, defendant must respond by May 28, and plaintiff must reply by June 7. [For further detail see separate order(s).] (hp, ) (Entered: 03/19/2007)
429 MEMORANDUM Opinion and Order Signed by Judge Joan B. Gottschall on 3/16/2007:Mailed notice(hp, ) (Entered: 03/19/2007)
430 MEMORANDUM by Equal Employment Opportunity Commission Regarding the Legal Framework for Trial and Motion to Bifurcate (Attachments: # 1 Appendix EEOC v. LA Weight Loss)(Henry, Ann) (Entered: 05/07/2007)
431 RESPONSE by Defendant International Profit Associates, Inc. to memorandum 430 IPA's Brief in Opposition to the EEOC's Renewed Motion to Bifurcate the Trial w/Notice of Filing & Certificate of Service (Attachments: # 1)(Cherry, Myron) (Entered: 05/29/2007)
432 MOTION by Defendant International Profit Associates, Inc. for leave to file excess pages w/Notice of Motion and Certificate of Service (Attachments: # 1 Notice of Motion)(Cherry, Myron) (Entered: 05/29/2007)
433 Re−Filed NOTICE of Motion by Myron Milton Cherry for presentment of motion for leave to file excess pages 432 before Honorable Joan B. Gottschall on 6/7/2007 at 09:30 AM. (Cherry, Myron) (Entered: 05/30/2007)
434 MOTION by Defendant International Profit Associates, Inc. to withdraw as Attorney for Defendant (w/Certificate of Service) (Goldberg, Cary) (Entered: 06/06/2007)
435 NOTICE of Motion by Cary Neal Goldberg for presentment of motion to withdraw 434 before Honorable Joan B. Gottschall on 6/21/2007 at 09:30 AM. (Goldberg, Cary) (Entered: 06/06/2007)
436 REPLY by Plaintiff Equal Employment Opportunity Commission Reply In Support of Renewed Motion to Bifurcate Trial and Additional Briefing Regarding the Legal Framework for Trial (Attachments: # 1 Exhibit)(Smason, Diane) (Entered: 06/07/2007)
437 MINUTE entry before Judge Joan B. Gottschall :Motion by Intl Profit Associates, for leave to file its brief in opposition to bifurcation in excess pages 432 is granted. Mailed notice (rj, ) (Entered: 06/11/2007)
438 MINUTE entry before Judge Joan B. Gottschall : Motion by Cary N. Goldberg to withdraw as attorney for Defendant International Profit Associates, Inc. 434 is granted. Attorney Cary Neal Goldberg terminated.Mailed notice (rbf, ) (Entered: 06/25/2007)
439 MINUTE entry before Judge Joan B. Gottschall : ENTER ORDER. EEOCs renewed motion for bifurcation is granted in part and denied in part. The trial of this case will be bifurcated into two phases but will be tried by one jury. Mailed notice (rbf, ) (Entered: 10/23/2007)
440 MEMORANDUM Opinion and Order Signed by Judge Joan B. Gottschall on 10/23/2007.(rbf, ) (Entered: 10/23/2007)
441 MINUTE entry before Judge Joan B. Gottschall :Status hearing set for 11/14/2007 at 09:30 AM. Mailed notice (rj, ) (Entered: 10/25/2007)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 34 of 66

11/14/2007
11/19/2007 12/10/2007
12/21/2007
12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007

442 MINUTE entry before Judge Joan B. Gottschall :Status hearing held on 11/14/2007. Dispositive motions with supporting memoranda due by 12/31/2007. Responses due by 1/31/2008. Replies due by 2/21/2008. Ruling by mail. Defendant to file motion for reconsideration by 11/19/2007. Counsel is directed to submit a courtesy copy of motion on 11/19/2007. The court will rule by mail. Mailed notice (rj, ) (Entered: 11/14/2007)
443 MOTION by Defendant International Profit Associates, Inc. for reconsideration of the Court's October 7, 2004 Order Prohibiting Settlement Communications With Claimants (Certificate of Service attached) (Cherry, Myron) (Entered: 11/19/2007)
444 MINUTE entry before Judge Joan B. Gottschall : Briefing schedule set for defendants motion to reconsider the courts prior order prohibiting settlement communication with individual claimants 301 . Plaintiffs reponses due by 12/21/07, defendants reply due by 1/4/2008. Mailed notice (rj, ) (Entered: 12/10/2007)
445 RESPONSE by Equal Employment Opportunity Commission to MOTION by Defendant International Profit Associates, Inc. for reconsideration of the Court's October 7, 2004 Order Prohibiting Settlement Communications With Claimants (Certificate of Service attached) 443 (Attachments: # 1 Exhibit)(Smason, Diane) (Entered: 12/21/2007)
446 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 1 (Cherry, Myron) (Entered: 12/28/2007)
447 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 6 (Cherry, Myron) (Entered: 12/28/2007)
448 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 36 (Cherry, Myron) (Entered: 12/28/2007)
449 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 52 (Cherry, Myron) (Entered: 12/28/2007)
450 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 65 (Cherry, Myron) (Entered: 12/28/2007)
451 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 77 (Cherry, Myron) (Entered: 12/28/2007)
452 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 89 (Cherry, Myron) (Entered: 12/28/2007)
453 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 93 (Cherry, Myron) (Entered: 12/28/2007)
454 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 99 (Cherry, Myron) (Entered: 12/28/2007)
455 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 170 (Cherry, Myron) (Entered: 12/28/2007)
456 CERTIFICATE by International Profit Associates, Inc. of Service of Motions for Summary Judgment on Claimants Nos. 1, 6, 36, 52, 65, 77, 89, 93, 99 and 170 (Cherry, Myron) (Entered: 12/28/2007)
457 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimaint no 1 AND Separate Statement of Material Facts. (RESTRICTED DOCUMENT). (rbf, ) (Entered: 01/02/2008)
458 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 2 AND Separate Statement of Material Facts. (RESTRICTED DOCUMENT). (rbf, ) (Entered: 01/02/2008)
459 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 36 AND Separate Statement of Material Facts. (RESTRICTED). (rbf, ) (Entered: 01/02/2008)
460 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 52 and Separate Statement of Material Facts. (RESTRICTED). (rbf, )

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 35 of 66

12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 01/04/2008 01/31/2008 01/31/2008
01/31/2008 02/04/2008 02/04/2008 02/07/2008

(Entered: 01/02/2008)
461 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 65 AND Separate Statement of Material Facts (RESTRICTED). (rbf, ) (Entered: 01/02/2008)
462 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 77 AND Separate Statement of Material Facts. (RESTRICTED). (rbf, ) (Entered: 01/02/2008)
463 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 89 and Separate Statement of Material Facts. (RESTRICTED). (rbf, ) (Entered: 01/02/2008)
464 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant No 93 AND Separate Statement of Material Facts. (RESTRICTED). (rbf, ) (Entered: 01/02/2008)
465 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 99 AND Separate Statement of Material Facts. (RESTRICTED). (rbf, ) (Entered: 01/02/2008)
466 MOTION by Defendant International Profit Associates, Inc. for summary judgment on claimant no 170 and Separate Statement of Material Facts. (RESTRICTED). (rbf, ) (Entered: 01/02/2008)
467 REPLY by Defendant International Profit Associates, Inc. to motion for reconsideration 443 (Certificate of service attached) (Attachments: # 1 Exhibit A−C)(Cherry, Myron) (Entered: 01/04/2008)
468 RULE 56.1(b)(3)(B) Statement of Additional Facts (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Szromba, Jeanne) (Entered: 01/31/2008)
469 RESPONSE by Equal Employment Opportunity Commission to MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 170 455 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 89 452 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 77 451 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 52 449 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 93 453 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 36 448 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 99 454 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 6 447 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 65 450 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 1 446 (Szromba, Jeanne) (Entered: 01/31/2008)
470 RULE 56.1 Statement Response to Defendant's Rule 56.1 Statement of Material Facts (Szromba, Jeanne) (Entered: 01/31/2008)
471 MOTION by Plaintiff Equal Employment Opportunity Commission to set a briefing schedule (Szromba, Jeanne) (Entered: 02/04/2008)
472 NOTICE of Motion by Jeanne B. Szromba for presentment of motion by filer to set a briefing schedule 471 before Honorable Joan B. Gottschall on 2/7/2008 at 09:30 AM. (Szromba, Jeanne) (Entered: 02/04/2008)
473 MINUTE entry before Judge Joan B. Gottschall :EEOC's motion to set a briefing schedule 471 is granted as to the terms stated of record. Motion hearing held on 2/7/2008. Defendant to file motions for summary judgment sixty (60) days after the court's ruling on the pending motions for summary judgment. Plaintiffs to respond thirty (30) days thereafter; Defendant to reply thirty (30) days thereafter. Mailed notice (rj, ) (Entered: 02/11/2008)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 36 of 66

02/21/2008 02/21/2008 02/21/2008 02/21/2008 02/22/2008
02/22/2008 02/28/2008
06/18/2008
07/08/2008 07/08/2008 07/08/2008 07/14/2008
07/14/2008 08/04/2008 08/04/2008 08/05/2008
08/06/2008

474 MOTION by Defendant International Profit Associates, Inc. for leave to file excess pages (AGREED MOTION) (Cherry, Myron) (Entered: 02/21/2008)
475 NOTICE of Motion by Myron Milton Cherry for presentment of motion for leave to file excess pages 474 before Honorable Joan B. Gottschall on 2/28/2008 at 09:30 AM. (Cherry, Myron) (Entered: 02/21/2008)
476 REPLY by Defendant International Profit Associates, Inc. in Further Support of Summary Judgment on Claimants Nos. 6, 65, 89, 93, 99 and 170 (Cherry, Myron) (Entered: 02/21/2008)
477 RESPONSE by Defendant International Profit Associates, Inc. to the EEOC's Statement of "Additional" Facts (Cherry, Myron) (Entered: 02/21/2008)
478 MINUTE entry before Judge Joan B. Gottschall : Defendant International Profit Associates, Inc. (IPA) has moved that the court reconsider its order of October 7th, 2004, prohibiting settlement communications between IPA and the individual claimants upon whose behalf the Equal Employment Opportunity Commission filed this suit. For the reasons set forth in the accmpanying order, IPAs motion to reconsider is denied. Mailed notice (rbf, ) (Entered: 02/25/2008)
479 ORDER Signed by Judge Joan B. Gottschall on 2/22/2008.(rbf, ) (Entered: 02/25/2008)
480 MINUTE entry before Judge Joan B. Gottschall : Agreed Motion by Defendant for leave to file instanter, its reply brief in further support of summary judgment on claimants nos. 6, 65, 89, 93, 99 and 170 in excess of 15 pages 474 is granted.Mailed notice (rbf, ) (Entered: 02/29/2008)
481 MINUTE entry before the Honorable Robert W. Gettleman:Defendant International Profit Associates, Inc.'s ("IPA") motions for summary judgment against claimants No. 1 [446, 457], No. 36 [448, 459], No. 52 [449, 460], and No. 77 [451, 462] are granted. Mailed notice (td, ). (Entered: 06/23/2008)
482 NOTICE by Ann M Henry of Change of Address (Henry, Ann) (Entered: 07/08/2008)
483 NOTICE by Diane Ilene Smason of Change of Address (Smason, Diane) (Entered: 07/08/2008)
484 NOTICE by Jeanne B. Szromba of Change of Address (Szromba, Jeanne) (Entered: 07/08/2008)
485 MINUTE entry before the Honorable Joan B. Gottschall: For the reasons set forth in the accompanying memorandum opinion and order, defendant International Profit Associates, Inc.'s ("IPA") motions for summary judgment with respect to Claimants Nos. 89 [452, 463], 99 [454, 465], and 170 [455, 466] are granted. IPA's motions for summary judgment with respect to Claimant No. 6 [447, 458], 65 [450, 461], and 93 [453, 464] are denied. Mailed notice (td, ) (Entered: 07/15/2008)
486 MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 7/14/2008. (td, ) (Entered: 07/15/2008)
487 MOTION by Defendant International Profit Associates, Inc. to set a briefing schedule to Streamline Summary Judgment Schedule and Procedure (Cherry, Myron) (Entered: 08/04/2008)
488 NOTICE of Motion by Myron Milton Cherry for presentment of motion by filer to set a briefing schedule 487 before Honorable Joan B. Gottschall on 8/7/2008 at 09:30 AM. (Cherry, Myron) (Entered: 08/04/2008)
489 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant International Profit Associates, Inc. to set a briefing schedule to Streamline Summary Judgment Schedule and Procedure 487 (Henry, Ann) (Entered: 08/05/2008)
490 REPLY by Defendant International Profit Associates, Inc. In Further Support of Its Motion to Streamline Summary Judgment Schedule and Procedure (Cherry, Myron) (Entered: 08/06/2008)

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08/07/2008
10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008

491 MINUTE entry before the Honorable Joan B. Gottschall: Motion hearing held on 8/7/2008. Defendant's motion to streamline summary judgment schedule and procedure 487 is granted as to the terms stated of record. The motions for summary judgment will be filed in two (2) groups as follows: Forty (40) motions are due by 10/15/2008. Responses by 11/17/2008. Replies by 12/17/2008. Ruling by mail. All remaining motions are due by 1/15/2009. Responses by 2/17/2009. Replies by 3/17/2009. Ruling by mail. Mailed notice (rj, ) (Entered: 08/12/2008)
492 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #2 (Cherry, Myron) (Entered: 10/15/2008)
493 RULE 56 56.1 Statement of Material Facts for Claimant No. 2 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
494 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #167 (Cherry, Myron) (Entered: 10/15/2008)
495 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 494 for Claimant #167 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
496 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #166 (Cherry, Myron) (Entered: 10/15/2008)
497 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 496 for Claimant #166 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
498 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #169 (Cherry, Myron) (Entered: 10/15/2008)
499 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 498 on Claimant #169 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
500 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #7 (Cherry, Myron) (Entered: 10/15/2008)
501 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 500 for Claimant #7 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
502 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #147 (Cherry, Myron) (Entered: 10/15/2008)
503 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 502 for Claimant #147 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
504 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #15 (Cherry, Myron) (Entered: 10/15/2008)
505 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 504 for Claimant #15 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
506 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #149 (Cherry, Myron) (Entered: 10/15/2008)
507 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 506 for Claimant #149 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
508 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #17 (Cherry, Myron) (Entered: 10/15/2008)
509 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 508 for Claimant #17 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)

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10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008

510 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #21 (Cherry, Myron) (Entered: 10/15/2008)
511 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 510 for Claimant #21 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
512 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #172 (Cherry, Myron) (Entered: 10/15/2008)
513 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 512 for Claimant #172 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
514 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #175 (Cherry, Myron) (Entered: 10/15/2008)
515 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 514 for Claimant #175 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
516 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #37 (Cherry, Myron) (Entered: 10/15/2008)
517 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 516 for Claimant #37 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
518 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #39 (Cherry, Myron) (Entered: 10/15/2008)
519 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 518 for Claimant #39 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
520 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #43 (Cherry, Myron) (Entered: 10/15/2008)
521 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 520 for Claimant #43 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
522 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #178 (Cherry, Myron) (Entered: 10/15/2008)
523 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 522 for Claimant #178 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
524 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #46 (Cherry, Myron) (Entered: 10/15/2008)
525 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 524 for Claimant #46 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
526 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #55 (Cherry, Myron) (Entered: 10/15/2008)
527 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 526 for Claimant #55 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
528 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #56 (Cherry, Myron) (Entered: 10/15/2008)
529 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 528 for Claimant #56 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)

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10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008

530 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #164 (Cherry, Myron) (Entered: 10/15/2008)
531 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 530 for Claimant #164 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
532 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #57 (Cherry, Myron) (Entered: 10/15/2008)
533 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 532 for Claimant #57 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
534 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #58 (Cherry, Myron) (Entered: 10/15/2008)
535 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 534 for Claimant #58 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
536 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #61 (Cherry, Myron) (Entered: 10/15/2008)
537 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 536 for Claimant #61 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
538 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #69 (Cherry, Myron) (Entered: 10/15/2008)
539 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 538 for Claimant #69 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
540 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #72 (Cherry, Myron) (Entered: 10/15/2008)
541 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 540 for Claimant #72 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
542 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #78 (Cherry, Myron) (Entered: 10/15/2008)
543 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 542 for Claimant #78 (Attachments: # 1 Exhibit A through D)(Cherry, Myron) (Entered: 10/15/2008)
544 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #157 (Cherry, Myron) (Entered: 10/15/2008)
545 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 544 for Claimant #157 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
546 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #180 (Cherry, Myron) (Entered: 10/15/2008)
547 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 546 for Claimant #180 (Attachments: # 1 Exhibit A through E)(Cherry, Myron) (Entered: 10/15/2008)
548 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #188 (Cherry, Myron) (Entered: 10/15/2008)
549 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 548 for Claimant #188 (Attachments: # 1 Exhibit A through E)(Cherry, Myron) (Entered: 10/15/2008)

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10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008

550 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #88 (Cherry, Myron) (Entered: 10/15/2008)
551 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 550 for Claimant #88 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
552 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #104 (Cherry, Myron) (Entered: 10/15/2008)
553 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 552 for Claimant #104 (Attachments: # 1 Exhibit A through D)(Cherry, Myron) (Entered: 10/15/2008)
554 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #107 (Cherry, Myron) (Entered: 10/15/2008)
555 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 554 for Claimant #107 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
556 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #108 (Cherry, Myron) (Entered: 10/15/2008)
557 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 556 for Claimant #108 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
558 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #189 (Cherry, Myron) (Entered: 10/15/2008)
559 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 558 for Claimant #189 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
560 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #113 (Cherry, Myron) (Entered: 10/15/2008)
561 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 560 for Claimant #113 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
562 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #134 (Cherry, Myron) (Entered: 10/15/2008)
563 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 562 for Claimant #134 (Attachments: # 1 Exhibit A through D)(Cherry, Myron) (Entered: 10/15/2008)
564 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #186 (Cherry, Myron) (Entered: 10/15/2008)
565 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 564 for Claimant #186 (Attachments: # 1 Exhibit A through D)(Cherry, Myron) (Entered: 10/15/2008)
566 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #137 (Cherry, Myron) (Entered: 10/15/2008)
567 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 566 for Claimant #137 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
568 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #139 (Cherry, Myron) (Entered: 10/15/2008)
569 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 568 for Claimant #139 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 41 of 66

10/15/2008 10/15/2008 10/15/2008

570 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #187 (Cherry, Myron) (Entered: 10/15/2008)
571 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 570 for Claimant #187 (Attachments: # 1 Exhibit A through C)(Cherry, Myron) (Entered: 10/15/2008)
572 NOTICE by International Profit Associates, Inc. re MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #43 520 , Rule 56 statement 515 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #46 524 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #186 564 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #39 518 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #107 554 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #139 568 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #189 558 , Rule 56 statement 553 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #149 506 , Rule 56 statement 503 , Rule 56 statement 521 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #188 548 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #17 508 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #167 494 , Rule 56 statement 561 , Rule 56 statement 509 , Rule 56 statement 529 , Rule 56 statement 543 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #164 530 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #187 570 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #69 538 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #55 526 , Rule 56 statement 555 , Rule 56 statement 507 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #147 502 , Rule 56 statement 523 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #104 552 , Rule 56 statement 497 , Rule 56 statement 565 , Rule 56 statement 557 , Rule 56 statement 545 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #15 504 , Rule 56 statement 519 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #113 560 , Rule 56 statement 547 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #58 534 , Rule 56 statement 527 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #134 562 , Rule 56 statement 569 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #37 516 , Rule 56 statement 571 , Rule 56 statement 531 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #175 514 , Rule 56 statement 493 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #178 522 , Rule 56 statement 563 , Rule 56 statement 533 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #157 544 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #7 500 , Rule 56 statement 535 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #61 536 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #169 498 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #108 556 , Rule 56 statement 505 , Rule 56 statement 517 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #166 496 , Rule 56 statement 541 , Rule 56 statement 537 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #172 512 , Rule 56 statement 501 , Rule 56 statement 567 , Rule 56 statement 495 , Rule 56 statement 549 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #180 546 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #137 566 , Rule 56 statement 499 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #57 532 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #72 540 , Rule 56 statement 525 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #88 550 , MOTION by Defendant International Profit Associates, Inc. for

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 42 of 66

11/17/2008 11/17/2008

summary judgment on Claimant #2 492 , Rule 56 statement 513 , Rule 56 statement 559 , Rule 56 statement 511 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #56 528 , Rule 56 statement 551 , Rule 56 statement 539 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #78 542 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #21 510 (Certificate of Service Attached) (Cherry, Myron) (Entered: 10/15/2008)
573 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #43 520 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #46 524 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #186 564 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #39 518 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #157 544 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #107 554 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #139 568 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #189 558 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #7 500 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #149 506 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #188 548 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #17 508 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #167 494 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #61 536 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #169 498 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #164 530 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #187 570 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #69 538 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #55 526 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #108 556 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #147 502 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #166 496 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #104 552 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #172 512 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #180 546 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #137 566 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #15 504 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #57 532 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #113 560 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #72 540 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #88 550 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #58 534 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #2 492 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #56 528 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #134 562 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #78 542 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #21 510 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #37 516 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #175 514 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #178 522 (Smason, Diane) (Entered: 11/17/2008)
574 MOTION by Plaintiff Equal Employment Opportunity Commission to strike Affidavit of Larry Lang (Szromba, Jeanne) (Entered: 11/17/2008)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 43 of 66

11/17/2008 11/17/2008 11/17/2008 11/17/2008 11/17/2008 11/19/2008 12/01/2008
12/01/2008 12/03/2008
12/08/2008 12/08/2008 12/11/2008 12/11/2008
12/18/2008 01/15/2009 01/15/2009 01/15/2009

575 RULE 56 56(b)(3)(B) Statement of Additional Facts (Henry, Ann) (Entered: 11/17/2008)
576 NOTICE of Motion by Jeanne B. Szromba for presentment of motion to strike 574 before Honorable Joan B. Gottschall on 12/4/2008 at 09:30 AM. (Szromba, Jeanne) (Entered: 11/17/2008)
577 RULE 56 (B)(3)(A) Statement EEOC's Response to IPA's Separate Statement of Facts (Smason, Diane) (Entered: 11/17/2008)
578 RULE 56 1(b)(1) Statement Compendium of Exhibits (Attachments: # 1 Exhibit 1−27, # 2 Exhibit 28−57)(Henry, Ann) (Entered: 11/17/2008)
579 NOTICE by Equal Employment Opportunity Commission re Rule 56 statement 575 , Rule 56 statement 578 , response in opposition to motion,,,,,,,,,,,,,,,,,, 573 , Rule 56 statement 577 (Henry, Ann) (Entered: 11/17/2008)
580 AMENDED response in opposition to motion,,,,,,,,,,,,,,,,,, 573 Amended Table of Contents for EEOC's Response to IPA's Motions for Summary Judgment (Smason, Diane) (Entered: 11/19/2008)
581 MOTION by Defendant International Profit Associates, Inc. to strike Rule 56 statement 575 , response in opposition to motion,,,,,,,,,,,,,,,,,, 573 (Attachments: # 1 Exhibit Schedules 1−4, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C−D)(Cherry, Myron) (Entered: 12/01/2008)
582 NOTICE of Motion by Myron Milton Cherry for presentment of motion to strike,, motion for relief,,, 581 before Honorable Joan B. Gottschall on 12/4/2008 at 09:30 AM. (Cherry, Myron) (Entered: 12/01/2008)
583 MINUTE entry before the Honorable Joan B. Gottschall: Briefing schedule has been set for EEOC's Motion to Strike Lang Affidavit 574 ; defendants response due 12/11/08; plaintiffs reply due 12/18/08. As to Def's Motion to Strike 581 : Parts A, B and D are denied: The court does not need the parties' assistance in disregarding duplications, references and conclusions and inadmissible hearsay. Part C is denied on the merits. Mailed notice (rj, ) (Entered: 12/03/2008)
584 MOTION by Defendant International Profit Associates, Inc. for extension of time for Summary Judgment Schedule (Unopposed Motion) (Cherry, Myron) (Entered: 12/08/2008)
585 NOTICE of Motion by Myron Milton Cherry for presentment of extension of time 584 before Honorable Joan B. Gottschall on 12/11/2008 at 09:30 AM. (Cherry, Myron) (Entered: 12/08/2008)
586 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commission to strike Affidavit of Larry Lang 574 (Cherry, Myron) (Entered: 12/11/2008)
587 MINUTE entry before the Honorable Joan B. Gottschall: Unopposed motion by IPA to extend summary judgment schedule 584 is granted. Reply briefs are due by 1/15/2009. Next round of summary judgment motions are due by 2/16/2009. Mailed notice (rj, ) (Entered: 12/12/2008)
588 REPLY by Equal Employment Opportunity Commission to response in opposition to motion 586 , MOTION by Plaintiff Equal Employment Opportunity Commission to strike Affidavit of Larry Lang 574 (Smason, Diane) (Entered: 12/18/2008)
589 RESPONSE by Defendant International Profit Associates, Inc. to Rule 56 statement 575 (Attachments: # 1 Exhibit A−G, # 2 Exhibit H−HH)(Cherry, Myron) (Entered: 01/15/2009)
590 REPLY by Defendant International Profit Associates, Inc. to response in opposition to motion,,,,,,,,,,,,,,,,,, 573 (Cherry, Myron) (Entered: 01/15/2009)
591 MOTION by Defendant International Profit Associates, Inc. for leave to file excess pages for Reply Brief in Further Support of Summary Judgment (Cherry, Myron) (Entered: 01/15/2009)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 44 of 66

01/15/2009 01/22/2009 01/26/2009 01/26/2009 01/29/2009
03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009

592 NOTICE of Motion by Myron Milton Cherry for presentment of motion for leave to file excess pages 591 before Honorable Joan B. Gottschall on 1/22/2009 at 09:30 AM. (Cherry, Myron) (Entered: 01/15/2009)
593 MINUTE entry before the Honorable Joan B. Gottschall: Unopposed motion for leave to file reply brief in excess of 15 pages instanter 591 is granted. Mailed notice (rj, ) (Entered: 01/22/2009)
594 MOTION by Defendant International Profit Associates, Inc. to set a briefing schedule to Modify the Summary Judgment Schedule (Unopposed) (Cherry, Myron) (Entered: 01/26/2009)
595 NOTICE of Motion by Myron Milton Cherry for presentment of motion by filer to set a briefing schedule 594 before Honorable Joan B. Gottschall on 1/29/2009 at 09:30 AM. (Cherry, Myron) (Entered: 01/26/2009)
596 MINUTE entry before the Honorable Joan B. Gottschall: Defendant's unopposed motion to modify the summary judgment briefing schedule 594 is granted according to the terms stated in open court, except that motions will be due on 3/10/09; responses due on 4/9/2009; and replies due on 5/15/09. Mailed notice (td, ) (Entered: 01/30/2009)
597 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #4 (Cherry, Myron) (Entered: 03/10/2009)
598 RULE 56 1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 597 for Claimant #4 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
599 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #9 (Cherry, Myron) (Entered: 03/10/2009)
600 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 599 for Claimant #9 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
601 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #14 (Cherry, Myron) (Entered: 03/10/2009)
602 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 601 for Claimant #14 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
603 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #18 (Cherry, Myron) (Entered: 03/10/2009)
604 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 603 for Claimant #18 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
605 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #23 (Cherry, Myron) (Entered: 03/10/2009)
606 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 605 for Claimant #23 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
607 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #27 (Cherry, Myron) (Entered: 03/10/2009)
608 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 607 for Claimant #27 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
609 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #34 (Cherry, Myron) (Entered: 03/10/2009)
610 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 609 for Claimant #34 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 45 of 66

03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009

611 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #40 (Cherry, Myron) (Entered: 03/10/2009)
612 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 611 for Claimant #40 (Attachments: # 1 Exhibit A thru E)(Cherry, Myron) (Entered: 03/10/2009)
613 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #41 (Cherry, Myron) (Entered: 03/10/2009)
614 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 613 for Claimant #41 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
615 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #48 (Cherry, Myron) (Entered: 03/10/2009)
616 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 615 for Claimaint #48 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
617 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #62 (Cherry, Myron) (Entered: 03/10/2009)
618 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 617 for Claimant #62 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
619 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #68 (Cherry, Myron) (Entered: 03/10/2009)
620 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 619 for Claimant #68 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
621 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #10 (Cherry, Myron) (Entered: 03/10/2009)
622 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 621 for Claimant #10 (Attachments: # 1 Exhibit A thru E)(Cherry, Myron) (Entered: 03/10/2009)
623 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #76 (Cherry, Myron) (Entered: 03/10/2009)
624 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 623 for Claimant #76 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
625 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #81 (Cherry, Myron) (Entered: 03/10/2009)
626 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 625 for Claimant #81 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
627 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #85 (Cherry, Myron) (Entered: 03/10/2009)
628 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 627 for Claimant #85 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
629 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #86 (Cherry, Myron) (Entered: 03/10/2009)
630 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 629 for Claimant #86 (Attachments: # 1 Exhibit A thru E)(Cherry, Myron) (Entered: 03/10/2009)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 46 of 66

03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009

631 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #90 (Cherry, Myron) (Entered: 03/10/2009)
632 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 631 for Claimant #90 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
633 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #92 (Cherry, Myron) (Entered: 03/10/2009)
634 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 633 for Claimant #92 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
635 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #97 (Cherry, Myron) (Entered: 03/10/2009)
636 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 635 for Claimant #97 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
637 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #115 (Cherry, Myron) (Entered: 03/10/2009)
638 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 637 for Claimant #115 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
639 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #123 (Cherry, Myron) (Entered: 03/10/2009)
640 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 639 for Claimant #123 (Cherry, Myron) (Entered: 03/10/2009)
641 Compendia of Exhibits by International Profit Associates, Inc. regarding motion for summary judgment 639 (Attachments: # 1 Exhibit A thru D, # 2 Exhibit E, # 3 Exhibit F thru N)(Cherry, Myron) Modified on 3/11/2009 (td, ). (Entered: 03/10/2009)
642 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #129 (Cherry, Myron) (Entered: 03/10/2009)
643 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 642 for Claimant #129 (Attachments: # 1 Errata A thru D)(Cherry, Myron) (Entered: 03/10/2009)
644 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #145 (Cherry, Myron) (Entered: 03/10/2009)
645 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 644 for Claimant #145 (Attachments: # 1 Exhibit A thru G)(Cherry, Myron) (Entered: 03/10/2009)
646 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #146 (Cherry, Myron) (Entered: 03/10/2009)
647 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 646 for Claimant #146 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
648 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #152 (Cherry, Myron) (Entered: 03/10/2009)
649 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 648 for Claimant #152 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
650 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #155 (Cherry, Myron) (Entered: 03/10/2009)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 47 of 66

03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009

651 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 650 for Claimant #155 (Attachments: # 1 Exhibit A thru F)(Cherry, Myron) (Entered: 03/10/2009)
652 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #161 (Cherry, Myron) (Entered: 03/10/2009)
653 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 652 for Claimant #161 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
654 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #174 (Cherry, Myron) (Entered: 03/10/2009)
655 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 654 for Claimant #174 (Attachments: # 1 Exhibit A thru H)(Cherry, Myron) (Entered: 03/10/2009)
656 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #179 (Cherry, Myron) (Entered: 03/10/2009)
657 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 656 for Claimant #179 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
658 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #183 (Cherry, Myron) (Entered: 03/10/2009)
659 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 658 for Claimant #183 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
660 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #190 (Cherry, Myron) (Entered: 03/10/2009)
661 RULE 56.1 Statement by International Profit Associates, Inc. regarding motion for summary judgment 660 for Claimant #190 (Attachments: # 1 Exhibit A thru D)(Cherry, Myron) (Entered: 03/10/2009)
662 MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 19 (Cherry, Myron) (Entered: 03/10/2009)
663 RULE 56 Rule 56.1 Statement Statement by International Profit Associates, Inc. regarding motion for summary judgment 662 on Claimant No. 19 (Cherry, Myron) (Entered: 03/10/2009)
664 Compendia by International Profit Associates, Inc. to IPA's Statement of Material Facts for Claimant No. 19 (Attachments: # 1 Exhibit A−E, # 2 Exhibit F (Part 1 of 2), # 3 Exhibit F (Part 2 of 2), # 4 Exhibit G−M)(Cherry, Myron) (Entered: 03/10/2009)
665 NOTICE by International Profit Associates, Inc. re Rule 56 statement 640 , Rule 56 statement 663 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #14 601 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #76 623 , Rule 56 statement 604 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #179 656 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #92 633 , Rule 56 statement 630 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #190 660 , Rule 56 statement 618 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #4 597 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #152 648 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #145 644 , Rule 56 statement 608 , Rule 56 statement 638 , Rule 56 statement 655 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #48 615 , Rule 56 statement 600 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #129 642 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #85 627 , Rule 56 statement 651 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #146 646 ,

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 48 of 66

04/09/2009
04/09/2009 04/09/2009 04/09/2009

Rule 56 statement 632 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #62 617 , Rule 56 statement 657 , Rule 56 statement 616 , Rule 56 statement 610 , Rule 56 statement 641 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #115 637 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #34 609 , Rule 56 statement 649 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #68 619 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #86 629 , Rule 56 statement 606 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #155 650 , Rule 56 statement 598 , Rule 56 statement 612 , Rule 56 statement 661 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #41 613 , other, 664 , Rule 56 statement 602 , Rule 56 statement 624 , Rule 56 statement 645 , Rule 56 statement 614 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 19 662 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #174 654 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #40 611 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #10 621 , Rule 56 statement 622 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #90 631 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #27 607 , Rule 56 statement 626 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #9 599 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #23 605 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #18 603 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #123 639 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #183 658 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #97 635 , Rule 56 statement 653 , Rule 56 statement 628 , Rule 56 statement 647 , Rule 56 statement 634 , Rule 56 statement 636 , Rule 56 statement 620 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #81 625 , Rule 56 statement 643 , Rule 56 statement 659 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #161 652 (Certificate of Service attached) (Cherry, Myron) (Entered: 03/10/2009)
666 RESPONSE by Marian Townsonin Opposition to MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #123 639 (Wasserman, Laurie) (Entered: 04/09/2009)
667 RULE 56 (1)(B)(3)(A) Statement (Attachments: # 1 Exhibit Compendium of Exhibits)(Wasserman, Laurie) (Entered: 04/09/2009)
668 RULE 56 (1)(B)(3)(B) Statement (Attachments: # 1 Exhibit, # 2 Notice of Filing Notice of Filing & Certificate of Service)(Wasserman, Laurie) (Entered: 04/09/2009)
669 RESPONSE by Equal Employment Opportunity Commission to MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #41 613 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #14 601 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #76 623 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #179 656 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #92 633 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #190 660 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #4 597 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #152 648 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant No. 19 662 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #145 644 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #174 654 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #40 611 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #10 621 , MOTION by Defendant

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 49 of 66

04/09/2009 04/09/2009 05/15/2009 05/15/2009 05/18/2009
05/20/2009 05/20/2009

International Profit Associates, Inc. for summary judgment on Claimant #90 631 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #27 607 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #48 615 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #9 599 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #23 605 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #129 642 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #18 603 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #85 627 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #146 646 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #183 658 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #62 617 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #97 635 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #115 637 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #34 609 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #81 625 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #68 619 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #86 629 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #155 650 , MOTION by Defendant International Profit Associates, Inc. for summary judgment on Claimant #161 652 (Szromba, Jeanne) (Entered: 04/09/2009)
670 RULE 56 (b)(3) Statement (Szromba, Jeanne) (Entered: 04/09/2009)
671 RULE 56 (b)(1) Statement (Attachments: # 1 Exhibit Table of Contents, # 2 Exhibit Part 1, # 3 Exhibit Part 2, # 4 Exhibit Part 3, # 5 Exhibit Part 4, # 6 Exhibit Part 5, # 7 Exhibit Part 6, # 8 Exhibit Part 7, # 9 Exhibit Part 8, # 10 Exhibit Part 9)(Szromba, Jeanne) (Entered: 04/09/2009)
672 MOTION by Defendant International Profit Associates, Inc. for extension of time to File Reply Brief and Response to the EEOC's Statement of "Additional" Facts (Cherry, Myron) (Entered: 05/15/2009)
673 NOTICE of Motion by Myron Milton Cherry for presentment of extension of time 672 before Honorable Joan B. Gottschall on 5/21/2009 at 09:30 AM. (Cherry, Myron) (Entered: 05/15/2009)
674 MINUTE entry before the Honorable Joan B. Gottschall: As stated in open court at the January 29, 2009, hearing on defendant's motion to modify the summary judgment briefing schedule, and for the reasons explained on that day, the schedule that was then agreed to is final, and defendant's motion 672 for extension is denied. Defendant may file replies when it is able to do so, but the court will not wait to begin analyzing the second round of summary judgment motions. Mailed notice (td, ) (Entered: 05/19/2009)
675 RESPONSE by Defendant International Profit Associates, Inc. to Rule 56 statement, 671 (Attachments: # 1 Exhibit Cover Sheet, # 2 Exhibit A−E, # 3 Exhibit F−V)(Cherry, Myron) (Entered: 05/20/2009)
676 REPLY by Defendant International Profit Associates, Inc. to motion for summary judgment 613 , motion for summary judgment 601 , motion for summary judgment 623 , motion for summary judgment 656 , motion for summary judgment 633 , motion for summary judgment 660 , motion for summary judgment 597 , motion for summary judgment 648 , motion for summary judgment 662 , motion for summary judgment 644 , motion for summary judgment 654 , motion for summary judgment 611 , motion for summary judgment 621 , motion for summary judgment 631 , motion for summary judgment 607 , motion for summary judgment 615 , motion for summary judgment 599 , motion for summary judgment 605 , motion for summary judgment 642 , motion for summary judgment 603 , motion for summary judgment 627 , motion for summary judgment 646 , motion for summary judgment 658 , motion for summary judgment 617 , motion for summary judgment 635 , motion for summary judgment 637 , motion for summary judgment 609 , motion for summary judgment 625 , motion for summary judgment 619 , motion for summary judgment 629 , motion for summary judgment

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 50 of 66

05/21/2009 05/21/2009 05/26/2009 05/26/2009 05/28/2009 07/07/2009
07/07/2009 07/08/2009 08/12/2009 08/13/2009
09/09/2009 09/09/2009

650 , motion for summary judgment 652 in Further Support of Its Motions for Summary Judgment on Claimants Nos. 4, 9, 10, 14, 18, 19, 23, 27, 34, 40, 41, 48, 62, 68, 76, 81, 85, 86, 90, 92, 97, 115, 129, 145, 146, 152, 155, 161, 174, 179, 183 and 190 (Cherry, Myron) (Entered: 05/20/2009)
677 MOTION by Defendant International Profit Associates, Inc. for leave to file excess pages for Reply Brief on Summary Judgment (Unopposed) (Cherry, Myron) (Entered: 05/21/2009)
678 NOTICE of Motion by Myron Milton Cherry for presentment of motion for leave to file excess pages 677 before Honorable Joan B. Gottschall on 5/28/2009 at 09:30 AM. (Cherry, Myron) (Entered: 05/21/2009)
679 RESPONSE by Defendant International Profit Associates, Inc. to Rule 56 statement 668 of "Additional" Facts Submitted by Claimant No. 123 (Attachments: # 1 Exhibit A−E)(Cherry, Myron) (Entered: 05/26/2009)
680 REPLY by Defendant International Profit Associates, Inc. to motion for summary judgment 639 on Claimant No. 123 (Attachments: # 1 Exhibit A)(Cherry, Myron) (Entered: 05/26/2009)
681 MINUTE entry before the Honorable Joan B. Gottschall: Unopposed motion by Defendant IPA for leave to file its reply brief in further support of summary judgment in excess of 15 pages instanter 677 is granted. Mailed notice (rj, ) (Entered: 05/28/2009)
682 MINUTE entry before the Honorable Joan B. Gottschall: For the reasons set forth in the accompanying memorandum opinion and order, defendant International Profit Associates, Inc.'s ("IPA") motions for summary judgment with respect to Claimants Nos. 39, 55, 57, 69, 78, 88, 113, 164, 172, and 186 ( 512 , 518 , 526 , 530 , 532 , 538 , 542 , 550 , 560 , 564 ) are granted. IPA's remaining motions for summary judgment filed on 10/15/2008 ( 492 , 494 , 496 , 498 , 500 , 502 , 504 , 506 , 508 , 510 , 514 , 516 , 520 , 522 , 524 , 528 , 534 , 536 , 540 , 544 , 546 , 548 , 552 , 554 , 556 , 558 , 562 , 566 , 568 , 570 ) are denied. [For further detail see separate order(s).] Mailed notice (td, ) (Entered: 07/08/2009)
683 MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 7/7/2009. (td, ) (Entered: 07/08/2009)
684 MINUTE entry before the Honorable Joan B. Gottschall: Plaintiff EEOC's motion 574 to strike the affidavit of Larry Lang is denied as moot. The Lang affidavit was not material to the court's grant, in its July 7, 2009, order 682 and accompanying memorandum opinion 683 , of any summary judgment motion. Mailed notice (td, ) (Entered: 07/09/2009)
686 MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 8/12/2009: Mailed notice (jmp, ) (Entered: 08/14/2009)
685 MINUTE entry before the Honorable Joan B. Gottschall: For the reasons set forth in the accompanying memorandum opinion and order, defendant International Profit Associates, Inc.s (IPA) motions for summary judgment with respect to Claimants Nos.14, 76, 81, 85, 90, 145, 152, 161, and 174 ( 601 , 623 , 625 , 627 , 631 , 644 , 648 , 652 , and 654 ) are granted. IPA's remaining motions for summary judgment filed on 03/10/2009 ( 597 , 599 , 603 , 605 , 607 , 609 , 611 , 613 , 615 , 617 , 619 , 621 , 629 , 633 , 635 , 637 , 639 , 642 , 646 , 650 , 656 , 658 , 660 , and 662 ) are denied. MOTION for summary judgment Status hearing set for 9/9/2009 at 10:00 AM.) [ For further detail see separate order(s).] Mailed notice (jmp, ) (Entered: 08/14/2009)
687 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Morton Denlow for the purpose of holding proceedings related to: settlement conference. (rj, )Mailed notice. (Entered: 09/11/2009)
688 MINUTE entry before the Honorable Joan B. Gottschall: Status hearing held. Jury trial set for 6/14/2010 a t 9:00AM. Pretrial order and motions in limine are due by 3/24/10. Responses by 4/7/10. Replies by 4/14/10. Pretrial conference set for 4/28/10 at 2:00 p.m. Defendant's motion for summary judgment due by 10/9/2009. Response by 10/30/2009. Reply by 11/13/2009. Ruling by mail. This case is referred to Magistrate Judge Denlow for settlement conference. Mailed notice (cdy, ) (Entered: 09/14/2009)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 51 of 66

09/15/2009
09/17/2009 09/21/2009 09/21/2009 09/23/2009 09/24/2009
09/24/2009 10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/09/2009

689 MINUTE entry before the Honorable Morton Denlow:This case has been referred to Judge Denlow to conduct a settlement conference. The parties are directed to review and to comply with Judge Denlow's Standing Order Setting Settlement Conference. Copies are available in chambers or through Judge Denlow's web page at www.ilnd.uscourts.gov. Judge Denlow requires full compliance with this standing order before conducting a settlement conference. Failure to comply with the provisions of the Court's Standing Order Setting Settlement Conference may result in the unilateral cancellation of the settlement conference by the Court. The parties shall jointly contact the courtroom deputy, Donna Kuempel at 312/435−5857, with mutually agreeable dates or appear at 10:00 a.m. on 10/1/2009 to set a settlement conference date. Because of the volume of settlement conferences conducted by Judge Denlow, once a settlement conference date has been agreed upon, no continuance will be granted without a motion showing extreme hardship. Parties are required to deliver to chambers or fax to chambers (312/554−8547) copies of their most recent settlement demands and offers at least three (3) business days prior to the settlement conference Mailed notice (dmk, ) (Entered: 09/15/2009)
690 MINUTE entry before the Honorable Morton Denlow:Settlement Conference set for 12/3/2009 at 10:00 AM. Status hearing set for 10/1/09 is stricken.Mailed notice (dmk, ) (Entered: 09/17/2009)
691 MOTION by Plaintiff Equal Employment Opportunity Commission for reconsideration regarding status hearing,, set/reset hearings,, text entry,, set deadlines/hearings, 688 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Szromba, Jeanne) (Entered: 09/21/2009)
692 NOTICE of Motion by Jeanne B. Szromba for presentment of motion for reconsideration,, motion for relief,,,,,,, 691 before Honorable Joan B. Gottschall on 9/24/2009 at 09:30 AM. (Szromba, Jeanne) (Entered: 09/21/2009)
693 MINUTE entry before the Honorable Joan B. Gottschall: Plaintiff's "Motion for Reconsideration of the Court's September 9, 2009" 691 order is denied. (For further details see minute order.) Mailed notice (ep, ) (Entered: 09/24/2009)
694 MINUTE entry before the Honorable Morton Denlow: In light of the complexity of the case, and in order to facilitate a meaningful and productive settlement conference on December 3, 2009 at 10:00 a.m., the EEOC shall submit it written itemization of damages and settlement proposed to defendants counsel with a brief explanation of why such a settlement is appropriate on or before October 16, 2009. Defendants counsel shall submit its written offer to the EEOC with a brief explanation of why such a settlement is appropriate on or before November 13, 2009. Copies shall be sent to Judge Denlows chambers at the time they are sent to opposing counsel. Drafts of proposed settlement agreements or consent decrees shall also be exchanged. Mailed notice (mmm, ) (Entered: 09/24/2009)
695 MINUTE entry before the Honorable Morton Denlow: Settlement Conference set for 12/3/2009 at 10:00 AM.Mailed notice (mmm, ) (Entered: 09/25/2009)
696 MOTION by Defendant International Profit Associates, Inc. for summary judgment (Cherry, Myron) (Entered: 10/09/2009)
697 SEPARATE STATEMENT of material facts pursuant to Local Rule 56.1 696 (Cherry, Myron) Modified on 10/13/2009 (cdy, ). (Entered: 10/09/2009)
698 COMPENDIA of Exhibits (1 of 3) (to IPA's separate statement of material facts in support of its motion for summary judgment on the EEOC's "Pattern or Practice" Claim) (Attachments: # 1 Exhibit A−D, # 2 Exhibit E − G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J − K, # 6 Exhibit L)(Cherry, Myron) Modified on 10/13/2009 (cdy, ). (Entered: 10/09/2009)
699 COMPENDIA of Exhibits (2 of 3) (to IPA's separate statement of material facts in support of its motion for summary judgment on the EEOC's "Pattern or Practice" Claim) (Attachments: # 1 Exhibit M, # 2 Exhibit N−1 − N−4, # 3 Exhibit N−5 − N−9, # 4 Exhibit N−10 − N−13)(Cherry, Myron) Modified on 10/13/2009 (cdy, ). (Entered: 10/09/2009)
700 COMPENDIA of Exhibits (3 of 3) (to IPA's separate statement of material facts in support of its motion for summary judgment on the EEOC's "Pattern or Practice"

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 52 of 66

10/09/2009 10/09/2009 10/12/2009 10/12/2009 10/12/2009 10/15/2009 10/22/2009
10/23/2009
10/30/2009 10/30/2009 10/30/2009 10/30/2009 11/10/2009 11/10/2009 11/13/2009
11/13/2009

Claim) (Attachments: # 1 Exhibit N−14 − N−15, # 2 Exhibit N−16 − N−18, # 3 Exhibit N−19 − N−21, # 4 Exhibit N−22 − Q)(Cherry, Myron) Modified on 10/13/2009 (cdy, ). (Entered: 10/09/2009)
701 MOTION by Defendant International Profit Associates, Inc. for leave to file instanter its motion for summary judgment in excess of 15 pages (Cherry, Myron) Modified on 10/13/2009 (cdy, ). (Entered: 10/09/2009)
702 NOTICE of Motion by Myron Milton Cherry for presentment of motion for leave to file excess pages 701 before Honorable Joan B. Gottschall on 10/15/2009 at 09:30 AM. (Cherry, Myron) (Entered: 10/09/2009)
703 MOTION by counsel for Intervenor Plaintiff Marian Townson to withdraw as attorney (Wasserman, Laurie) (Entered: 10/12/2009)
704 NOTICE of Motion by Laurie J Wasserman for presentment of motion to withdraw as attorney 703 before Honorable Joan B. Gottschall on 10/22/2009 at 09:30 AM. (Wasserman, Laurie) (Entered: 10/12/2009)
705 NOTICE by Marian Townson re notice of motion 704 , MOTION by counsel for Intervenor Plaintiff Marian Townson to withdraw as attorney 703 and Certificate of Service (Wasserman, Laurie) (Entered: 10/12/2009)
706 MINUTE entry before the Honorable Joan B. Gottschall: Motion by Defendant, IPA for leave to file instanter its motion for summary judgment in excess of 15 pages 701 is granted. Mailed notice (rj, ) (Entered: 10/19/2009)
707 MINUTE entry before the Honorable Joan B. Gottschall: Motion hearing held on 10/22/2009. Attorneys Laurie J. Wasserman and Carol G. Silverman motion to withdraw their appearances on behalf of Plaintiff 703 is taken under advisement. Counsel may submit legal authority in support of their motion by contacting Judge Gottschall's law clerk. Ruling mail. Mailed notice. (rj, ) (Entered: 10/22/2009)
708 MINUTE entry before the Honorable Joan B. Gottschall: Motion by Counsel for Intervenor Plaintiff Marian Townson to Withdraw as Attorney 703 is granted. The court encourages Ms. Townson request an appointment of counsel by Magistrate Judge Denlow for purposes of the settlement conference on 12/3/2009. [For further detail see minute order.] Mailed notice (td, ) (Entered: 10/26/2009)
709 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant International Profit Associates, Inc. for summary judgment 696 (Smason, Diane) (Entered: 10/30/2009)
710 RESPONSE to IPA's Separate Statements of Facts pursuant to Local Rule 56 56.1(B)(3)(A). (Smason, Diane) Modified on 11/2/2009 (td, ) (Entered: 10/30/2009)
711 LOCAL RULE 56.1(b)(3)(C) Statement EEOC's Statement of Additional Facts and Exhibits (Attachments: # 1 Exhibit Exhibits 1−18)(Smason, Diane) Modified on 11/2/2009 (td, ) (Entered: 10/30/2009)
712 SEALED EXHIBIT by Plaintiff Equal Employment Opportunity Commission Exhibit 19 to EEOC's Response to Defendant's Motion for Summary Judgment (Smason, Diane) (Entered: 10/30/2009)
713 ATTORNEY Appearance for Intervenor Plaintiff Marian Townson by Dennis P. W. Johnson Limited Appearance as Settlement Assistance Counsel (Johnson, Dennis P.) (Entered: 11/10/2009)
714 ATTORNEY Appearance for Intervenor Plaintiff Marian Townson by Uma Chandrasekaran Limited Appearance as Settlement Assistance Counsel (Chandrasekaran, Uma) (Entered: 11/10/2009)
715 REPLY by International Profit Associates, Inc. to MOTION by Defendant International Profit Associates, Inc. for summary judgment 696 , response in opposition to motion 709 (Attachments: # 1 Errata A−E, # 2 Exhibit D1−D25, # 3 Exhibit D26−D59, # 4 Exhibit E)(Cherry, Myron) (Entered: 11/13/2009)
716 RESPONSE by Defendant International Profit Associates, Inc. to Rule 56 statement 711 (Attachments: # 1 Exhibit A−F)(Cherry, Myron) (Entered: 11/13/2009)

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11/13/2009 11/13/2009 11/13/2009 11/13/2009 11/16/2009
11/19/2009 12/03/2009 12/03/2009 12/04/2009 02/24/2010 02/24/2010 03/04/2010
03/18/2010

717 MOTION by Defendant International Profit Associates, Inc. for leave to file excess pages for Reply Brief in Further Support of Summary Judgment on the EEOC's "Pattern or Practice" Claim (Cherry, Myron) (Entered: 11/13/2009)
718 NOTICE of Motion by Myron Milton Cherry for presentment of motion for leave to file excess pages 717 before Honorable Joan B. Gottschall on 11/19/2009 at 09:30 AM. (Cherry, Myron) (Entered: 11/13/2009)
719 MOTION by Intervenor Plaintiff Marian Townson for Leave to Serve Settlement Demand (Attachments: # 1 Exhibit)(Chandrasekaran, Uma) (Entered: 11/13/2009)
720 NOTICE of Motion by Uma Chandrasekaran for presentment of motion for miscellaneous relief 719 before Honorable Morton Denlow on 11/18/2009 at 09:15 AM. (Chandrasekaran, Uma) (Entered: 11/13/2009)
721 MINUTE entry before the Honorable Morton Denlow:Intervenor, Marian Townson, motion for Leave to Serve Settlement Demand 719 is granted. Defendant to serve its offer on Plaintiff on or before 11/24/2009. Copies of the demand and offer to be mailed or delivered to Judge Denlow by 11/25/2009. In the event the EEOC desires to examine any additional financial records from Defendant in connection with the settlement conference, it should proceed to do so immediately. Motion hearing set for 11/18/09 is stricken.Mailed notice (dmk, ) (Entered: 11/16/2009)
722 MINUTE entry before the Honorable Joan B. Gottschall: International Profit Associates, Inc's motion for leave to file insanter its reply in further support of its motion for summary judgment in excess of 15 pages 717 is granted. Mailed notice (rj, ) (Entered: 11/22/2009)
723 MINUTE entry before the Honorable Morton Denlow: Settlement conference held. Limited progress made. The parties are to jointly contact Judge Denlow's courtroom deputy if they desire an additional settlement conference. Mailed notice (mmm, ) (Entered: 12/03/2009)
725 LIMITED Appointment of Settlement Assistance Program Counsel for Intervenor Plaintiff : appointing Dennis P. W. Johnson for Marian Townson. Signed by the Honorable Morton Denlow on 12/3/2009:(td, ) (Entered: 12/08/2009)
724 MINUTE entry before the Honorable Morton Denlow: Enter limited appointment of settlement assistance program counsel. [For further detail see separate order(s).] Mailed notice (td, ) (Entered: 12/08/2009)
726 MOTION by Defendant International Profit Associates, Inc.For Leave to Provide the Court With New Authority and, MOTION by Defendant International Profit Associates, Inc. to dismiss the EEOC's "Pattern or Practice" Claim (Attachments: # 1 Exhibit Serrano v. Cintas, 2010 WL 522846 (E.D. Mich. Feb. 9, 2010))(Cherry, Myron) (Entered: 02/24/2010)
727 NOTICE of Motion by Myron Milton Cherry for presentment of motion for miscellaneous relief,, motion to dismiss, 726 before Honorable Joan B. Gottschall on 3/4/2010 at 09:30 AM. (Cherry, Myron) (Entered: 02/24/2010)
728 MINUTE entry before Honorable Joan B. Gottschall: Motion hearing held. Motion for Leave to Provide the Court With New Authority and Motion by Defendant International Profit Associates, Inc. to dismiss the EEOC's "Pattern or Practice" Claim 726 is granted in part and denied in part. The court accepts and will consider new authority, but declines at this stage to reconsider its prior ruling. The court will order additional briefing regarding new authority if necessary. Previous deadlines for motions in limine, responses, replies, and pretrial order are stricken. Pretrial order and motions in limine are due 4/23/2010. Responses to motions in limine are due 4/29/2010. Replies are due 5/5/2010. Previous pretrial conference date is stricken. Pretrial conference is re−set for 5/18/2010 at 10:30 a.m. Mailed notice (ea, ) (Entered: 03/05/2010)
729 MINUTE entry before Honorable Morton Denlow:The parties having failed to jointly request an additional settlement conference, the referral is closed. Case no longer referred to Honorable Morton Denlow.Mailed notice (dmk, ) (Entered: 03/18/2010)

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03/31/2010 03/31/2010 04/02/2010 04/02/2010 04/06/2010 04/07/2010
04/09/2010 04/09/2010 04/12/2010
04/13/2010
04/14/2010 04/14/2010 04/15/2010 04/16/2010

730 MINUTE entry before Honorable Joan B. Gottschall: Defendant's motion for summary judgment 696 is denied. [ For further detail see separate order(s).] Mailed notice. (kj, ) (Entered: 04/01/2010)
731 MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/31/2010. Mailed notice. (kj, ) (Entered: 04/01/2010)
732 MOTION by Defendant International Profit Associates, Inc. For Relief For the EEOCs Failure to Comply With the Local Rules Regarding Pre−Trial Matters (Cherry, Myron) (Entered: 04/02/2010)
733 NOTICE of Motion by Myron Milton Cherry for presentment of motion for miscellaneous relief 732 before Honorable Joan B. Gottschall on 4/7/2010 at 09:30 AM. (Cherry, Myron) (Entered: 04/02/2010)
734 RESPONSE by Equal Employment Opportunity Commission to MOTION by Defendant International Profit Associates, Inc. For Relief For the EEOCs Failure to Comply With the Local Rules Regarding Pre−Trial Matters 732 (Attachments: # 1 Exhibit Exhibits 1−3)(Szromba, Jeanne) (Entered: 04/06/2010)
735 MINUTE entry before Honorable Joan B. Gottschall:Motion 732 is denied for the reasons stated in open court; Motion hearing held on 4/7/2010 regarding motion for miscellaneous relief 732 . Plaintiff to submit its draft to Defendant by close of business on 4/12/2010. Pretrial Order due by 5/3/2010. Motions in limine with supporting memoranda due by 5/3/2010. Responses due by 5/17/2010. Replies due by 5/24/2010. Pretrial Conference set for 5/18/2010 is stricken and reset to 6/2/2010 at 03:00 PM. Mailed notice (rj, ) (Entered: 04/09/2010)
736 MOTION by Defendant International Profit Associates, Inc. for certificate of appealability Motion for Certification of the Court's March 31, 2010 Order for Interlocutory Appeal Pursuant to U.S.C. Sec. 1292(b), and Memorandum in Support Thereof (Cherry, Myron) (Entered: 04/09/2010)
737 NOTICE of Motion by Myron Milton Cherry for presentment of motion for certificate of appealability, 736 before Honorable Joan B. Gottschall on 4/14/2010 at 09:30 AM. (Cherry, Myron) (Entered: 04/09/2010)
738 MINUTE entry before Honorable Joan B. Gottschall:Motion hearing noticed for 4/14/2010 is stricken. Response to motion 736 , if any, is due by on 4/13/2010. Reply in support of motion, if any, is due by on 4/15/2010. Ruling by mail on 4/16/2010. No extensions of deadlines will be granted absent extremely compelling circumstances. Mailed notice (rp, ) (Entered: 04/12/2010)
739 RESPONSE by Equal Employment Opportunity Commission to MOTION by Defendant International Profit Associates, Inc. for certificate of appealability Motion for Certification of the Court's March 31, 2010 Order for Interlocutory Appeal Pursuant to U.S.C. Sec. 1292(b), and Memorandum in Support ThereofMotion for Certification of the Court's March 31, 2010 Order for Interlocutory Appeal Pursuant to U.S.C. Sec. 1292(b), and Memorandum in Support Thereof736 (Attachments: # 1 Exhibit)(Szromba, Jeanne) (Entered: 04/13/2010)
740 MOTION by Intervenor Plaintiff Marian Townson for leave to proceed in forma pauperis and, MOTION by Intervenor Plaintiff Marian Townson to appoint counsel (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Johnson, Dennis P.) (Entered: 04/14/2010)
741 NOTICE of Motion by Dennis P. W. Johnson for presentment of motion for leave to proceed in forma pauperis, motion to appoint counsel 740 before Honorable Joan B. Gottschall on 4/21/2010 at 09:30 AM. (Johnson, Dennis P.) (Entered: 04/14/2010)
742 REPLY by Defendant International Profit Associates, Inc. in Support of Its Motion for Certification of the Court's March 31, 2010 Order Pursuant to 28 USC 1292(b) (Cherry, Myron) Modified on 4/16/2010 (tc, ). (Entered: 04/15/2010)
743 MINUTE entry before Honorable Joan B. Gottschall: Defendants motion for certificate of appealability 736 is denied. [For further detail see separate order(s).] Mailed notice (tc, ) (Entered: 04/19/2010)

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04/16/2010 04/21/2010
04/27/2010
05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010
05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010 05/03/2010

744 ORDER Signed by the Honorable Joan B. Gottschall on 4/16/2010. (tc, ) (Entered: 04/19/2010)
745 MINUTE entry before Honorable Joan B. Gottschall: Intervenor Plaintiff Marion Townson's motion to proceed in forma pauperis and for appointment of pro bono trial counsel 740 is granted. The court appoints Jin−Ho Chung, Kane & Fischer, Ltd., 209 South LaSalle Suite 1800, Chicago, IL 60604 (312) 422−7212 Email: jchung@kfltd.com to represent Marion Townson. Mailed notice (tc, ) (Entered: 04/27/2010)
746 MINUTE entry before Honorable Joan B. Gottschall: Minute order dated 4/21/2010 is amended to strike the appointment of Jin−Ho Chung as counsel for intervenor plaintiff Marion Townson, having been entered in error. The court appoints Uma Chandrasekaran and Dennis P.W. Johnson to represent intervenor plaintiff Marion Townson as requested in motion 740 . Mailed notice (tc, ) (Entered: 04/27/2010)
747 MOTION by Unknown Phyllis Lopez, Intervenor Plaintiff Rhonda Porterin limine (Peters, Ross) (Entered: 05/03/2010)
748 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Prior Bad Acts (Szromba, Jeanne) (Entered: 05/03/2010)
749 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Emotional Distress (Szromba, Jeanne) (Entered: 05/03/2010)
750 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Rule 412 (Szromba, Jeanne) (Entered: 05/03/2010)
751 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Number of Women (Szromba, Jeanne) (Entered: 05/03/2010)
752 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Evidence of Other Claims (Szromba, Jeanne) (Entered: 05/03/2010)
753 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine to bar evidence of events occurring after the close of discovery (Henry, Ann) (Entered: 05/03/2010)
754 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine To Bar Evidence of Criminal Conviction (Szromba, Jeanne) (Entered: 05/03/2010)
755 MOTION by Intervenor Plaintiff Marian Townsonin limine Barring Evidence of Sexual Predisposition (Chandrasekaran, Uma) (Entered: 05/03/2010)
756 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Number of Employees of Defendant (Chandrasekaran, Uma) (Entered: 05/03/2010)
757 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Other Claims, Charges or Lawsuits (Chandrasekaran, Uma) (Entered: 05/03/2010)
758 MOTION by Intervenor Plaintiff Marian Townsonin limine Concerning Evidence Relating to Alleged Affidavit (Chandrasekaran, Uma) (Entered: 05/03/2010)
759 MOTION by Intervenor Plaintiff Marian Townsonin limine Concerning Unemployment Claim and Proceedings (Chandrasekaran, Uma) (Entered: 05/03/2010)
760 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Drug & Alcohol Use Outside the Workplace (Chandrasekaran, Uma) (Entered: 05/03/2010)
761 PROPOSED Pretrial Order (Henry, Ann) (Entered: 05/03/2010)
762 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Hearsay Comments About Townson (Chandrasekaran, Uma) (Entered: 05/03/2010)
763 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding EEOC Finding (Chandrasekaran, Uma) (Entered: 05/03/2010)
764 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Townson's Handwritten Notes (Chandrasekaran, Uma) (Entered: 05/03/2010)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 56 of 66

05/03/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010
05/18/2010 05/24/2010 05/24/2010 05/24/2010

765 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Employment Agreement (Chandrasekaran, Uma) (Entered: 05/03/2010)
766 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Unknown Phyllis Lopez, Intervenor Plaintiff Rhonda Porterin limine 747 (Zolna, Jacie) (Entered: 05/17/2010)
767 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Prior Bad Acts 748 (Zolna, Jacie) (Entered: 05/17/2010)
768 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Emotional Distress 749 (Zolna, Jacie) (Entered: 05/17/2010)
769 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Rule 412 750 (Zolna, Jacie) (Entered: 05/17/2010)
770 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Number of Women 751 (Zolna, Jacie) (Entered: 05/17/2010)
771 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Evidence of Other Claims 752 (Zolna, Jacie) (Entered: 05/17/2010)
772 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commissionin limine to bar evidence of events occurring after the close of discovery 753 (Attachments: # 1 Exhibit A−B)(Zolna, Jacie) (Entered: 05/17/2010)
773 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Plaintiff Equal Employment Opportunity Commissionin limine To Bar Evidence of Criminal Conviction 754 (Zolna, Jacie) (Entered: 05/17/2010)
774 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Employment Agreement 765 , MOTION by Intervenor Plaintiff Marian Townsonin limine Barring Evidence of Sexual Predisposition 755 , MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding EEOC Finding 763 , MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Drug & Alcohol Use Outside the Workplace 760 , MOTION by Intervenor Plaintiff Marian Townsonin limine Concerning Unemployment Claim and Proceedings 759 , MOTION by Intervenor Plaintiff Marian Townsonin limine Concerning Evidence Relating to Alleged Affidavit 758 , MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Other Claims, Charges or Lawsuits 757 , MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Townson's Handwritten Notes 764 , MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Hearsay Comments About Townson 762 , MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Number of Employees of Defendant 756 (Attachments: # 1 Exhibit A−C)(Zolna, Jacie) (Entered: 05/17/2010)
775 MINUTE entry before Honorable Joan B. Gottschall: Given the length of the trial, a questionnaire will be needed for the venire. Status hearing set for 5/25/2010 at 09:30 AM. Mailed notice (rj, ) (Entered: 05/18/2010)
776 REPLY by Phyllis Lopez, Rhonda Porter to MOTION by Unknown Phyllis Lopez, Intervenor Plaintiff Rhonda Porterin limine 747 Brief in Support of the Motion in Limine of Plaintiffs/Intervenors Phyllis Lopez and Rhonda Porter (Peters, Ross) (Entered: 05/24/2010)
777 REPLY by Equal Employment Opportunity Commission to response in opposition to motion 768 in limine Regarding Evidence of Medical or Psychological Treatment of Claimants or Other Stressors (Szromba, Jeanne) (Entered: 05/24/2010)
778 REPLY by Equal Employment Opportunity Commission to response in opposition to motion 767 in limine to Preclude Evidence Regarding Class Members' Prior Bad Acts (Szromba, Jeanne) (Entered: 05/24/2010)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 57 of 66

05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/25/2010
05/27/2010 05/27/2010 06/01/2010 06/02/2010 06/02/2010 06/03/2010 06/03/2010 06/03/2010 06/03/2010 06/03/2010 06/03/2010

779 REPLY by Equal Employment Opportunity Commission to response in opposition to motion 770 in limine Regarding Evidence of the Number of Women IPA Employed After September 2001 (Szromba, Jeanne) (Entered: 05/24/2010)
780 REPLY by Equal Employment Opportunity Commission to response in opposition to motion 769 in limine to Exclude Evidence Pursuant to Federal Rule of Evidence 412 (Attachments: # 1 Exhibit Exhibits 1−3)(Szromba, Jeanne) (Entered: 05/24/2010)
781 REPLY by Equal Employment Opportunity Commission to response in opposition to motion, 772 in Limine Regarding Evidence of Events Occurring After February 14, 2005 (Henry, Ann) (Entered: 05/24/2010)
782 REPLY by Equal Employment Opportunity Commission to response in opposition to motion 771 , MOTION by Plaintiff Equal Employment Opportunity Commissionin limine Evidence of Other Claims 752 (Smason, Diane) (Entered: 05/24/2010)
783 REPLY by Equal Employment Opportunity Commission to response in opposition to motion 773 in Limine Regarding Claimant No. 67's Prior Criminal Convictions (Henry, Ann) (Entered: 05/24/2010)
784 REPLY by Intervenor Plaintiff Marian Townson to response in opposition to motion,,,, 774 in Limine Nos. 1−10 (Attachments: # 1 Exhibit A)(Chandrasekaran, Uma) (Entered: 05/24/2010)
785 MINUTE entry before Honorable Joan B. Gottschall:Status hearing held on 5/25/2010, Pretrial Conference set for 6/2/2010 at 3:00PM is stricken and reset to 6/1/2010 at 10:15 AM. (please note that time differs from time set in open court) Jury Instructions shall be filed by 6/3/2010. Jury Instruction Conference set for 6/7/2010 at 02:00 PM. Mailed notice (rj, ) (Entered: 05/25/2010)
786 MOTION by Defendant International Profit Associates, Inc. to Permit Filing of Rule 412 Motions At Trial (Cherry, Myron) (Entered: 05/27/2010)
787 NOTICE of Motion by Myron Milton Cherry for presentment of motion for miscellaneous relief 786 before Honorable Joan B. Gottschall on 6/1/2010 at 10:15 AM. (Cherry, Myron) (Entered: 05/27/2010)
788 MINUTE entry before Honorable Joan B. Gottschall: Pretrial conference held. Deadlines are set as stated below. [For further details see minute order.] Mailed notice (tc, ) (Entered: 06/02/2010)
789 MOTION by counsel for Unknown Phyllis Lopez, Intervenor Plaintiff Rhonda Porter to withdraw as attorney (Peters, Ross) (Entered: 06/02/2010)
790 NOTICE of Motion by Ross J. Peters for presentment of motion to withdraw as attorney 789 before Honorable Joan B. Gottschall on 6/9/2010 at 09:30 AM. (Peters, Ross) (Entered: 06/02/2010)
791 MOTION by Defendant International Profit Associates, Inc. for order on "Phase I" of the Trial (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cherry, Myron) (Entered: 06/03/2010)
792 PROPOSED Jury Instructions by Equal Employment Opportunity Commission (Henry, Ann) (Entered: 06/03/2010)
793 NOTICE of Motion by Myron Milton Cherry for presentment of motion for order 791 before Honorable Joan B. Gottschall on 6/7/2010 at 02:00 PM. (Cherry, Myron) (Entered: 06/03/2010)
794 PROPOSED Jury Instructions by International Profit Associates, Inc. (Attachments: # 1 Exhibit A − Voir Dire, # 2 Exhibit B − Proposed Jury Instructions, # 3 Exhibit C − Proposed Verdict Form)(Cherry, Myron) (Entered: 06/03/2010)
795 MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Phillip Bell and William Weber (Chandrasekaran, Uma) (Entered: 06/03/2010)
796 MINUTE entry before Honorable Joan B. Gottschall: Motions in limine 757 758 763 are granted. Motions in limine 747 748 753 759 are granted in part. Motions in limine 749 750 752 755 760 786 are denied. Motions in limine 754 762 764 765 are withdrawn and therefore terminated. The remaining motions in limine 751 756 will be

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 58 of 66

06/03/2010 06/04/2010
06/07/2010 06/07/2010 06/09/2010 06/10/2010 06/10/2010 06/11/2010 06/11/2010
06/11/2010
06/11/2010 06/11/2010 06/11/2010 06/11/2010 06/14/2010
06/15/2010 06/16/2010

addressed at the court's jury instruction conference on 6/7/2010. (For further detail see separate order). Mailed notice. (srb,) (Entered: 06/04/2010)
797 ORDER regarding motions in limine Signed by the Honorable Joan B. Gottschall on 6/3/2010. Mailed notice.(srb,) (Entered: 06/04/2010)
798 MINUTE entry before Honorable Joan B. Gottschall: Regarding defendant's motion and consent to order on Phase I of the Trial 791 , the EEOC is instructed to be prepared to respond orally at the jury instruction conference set for 6/7/2010. Mailed notice. (srb,) (Entered: 06/04/2010)
799 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine to Exclude Evidence of Defendant's Financial Status (Smason, Diane) (Entered: 06/07/2010)
800 MINUTE entry before Honorable Joan B. Gottschall:Jury Instruction Conference held on 6/7/2010. Mailed notice (rj, ) (Entered: 06/08/2010)
801 RESTRICTED per court order dated 6/11/2010. (tc, ) Modified on 6/11/2010 (tc, ). (Entered: 06/10/2010)
802 RESTRICTED per court order dated 6/11/2010. (rj, ) Modified on 6/11/2010 (tc, ). (Entered: 06/10/2010)
814 MINUTE entry before Honorable Joan B. Gottschall: The parties should be prepared to address the issue outlined below when they appear before the court on 6/11/2010 at 11 a.m. For further details see minute order. Mailed notice (rj, ) (Entered: 06/16/2010)
803 MINUTE entry before Honorable Joan B. Gottschall:Jury Trial set for 6/14/2010 is stricken. Mailed notice (rj, ) (Entered: 06/11/2010)
804 MINUTE entry before Honorable Joan B. Gottschall: It is hereby ordered that Minute Orders dated 6/9/2010 801 and dated 6/10/2010 802 are placed under seal until further order of court. It is further ordered that docket entries 801 and 802 are stricken and removed from the courts public docket [record], immediately. Mailed notice (tc, ) (Entered: 06/11/2010)
805 SEALED MOTION by Defendant International Profit Associates, Inc. for Order to Show Cause Why the EEOC's Section 706 Claims for Individual Damages Should Not Be Dismissed for Failure to Fulfill Statutory Prerequisites to Filing Suit (Attachments: # 1 Exhibit A−K)(Cherry, Myron) (Entered: 06/11/2010)
806 SEALED MOTION by Defendant International Profit Associates, Inc. for Rule 412(c) Proffer of Evidence (Cherry, Myron) (Entered: 06/11/2010)
807 MOTION by Defendant International Profit Associates, Inc. for attorney fees as Prevailing Party on Claims of 40 Individual Claimants (Cherry, Myron) (Entered: 06/11/2010)
808 NOTICE of Motion by Myron Milton Cherry for presentment of motion for attorney fees 807 , Sealed motion, 805 before Honorable Joan B. Gottschall on 6/14/2010 at 10:00 AM. (Cherry, Myron) (Entered: 06/11/2010)
809 MINUTE entry before Honorable Joan B. Gottschall: In court hearing held on 6/11/2010, Jury Trial reset for 7/6/2010 at 10:00 AM. Mailed notice (rj, ) (Entered: 06/15/2010)
811 MINUTE entry before Honorable Joan B. Gottschall: Pretrial conference held. Defendant's motion to enter order on Phase I of the Trial 791 is granted. Order on Phase I of the trial entered as stated below. The EEOC's and plaintiff−intervenor Townson's motions in limine 751 756 are denied as moot. Deadlines entered and trial procedure established as stated below. [For further details see text below.] Mailed notice (jmp, ) (Entered: 06/16/2010)
810 ATTORNEY Appearance for Plaintiff Equal Employment Opportunity Commission by Aaron R. DeCamp (DeCamp, Aaron) (Entered: 06/15/2010)
812 RESPONSE by International Profit Associates, Inc.in Opposition to MOTION by Intervenor Plaintiff Marian Townsonin limine Regarding Phillip Bell and William

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 59 of 66

06/16/2010 06/16/2010
06/16/2010 06/16/2010 06/17/2010 06/17/2010
06/17/2010 06/18/2010
06/18/2010 06/18/2010
06/22/2010 06/22/2010 06/23/2010 06/23/2010
06/23/2010 06/23/2010 06/24/2010

Weber 795 (Cherry, Myron) (Entered: 06/16/2010)
813 MOTION by Defendant International Profit Associates, Inc. to sever Claims or, in the Alternative, for Separate Trials (Cherry, Myron) (Entered: 06/16/2010)
815 MOTION by Defendant International Profit Associates, Inc. for Oral Argument on Its Motion for Order to Show Cause Why The EEOCs Section 706 Claims for Individual Damages Should Not Be Dismissed For Failure to Fulfill Statutory Prerequisites to Filing Suit (Cherry, Myron) (Entered: 06/16/2010)
816 SEALED EXHIBIT by Defendant International Profit Associates, Inc. (Attachments: # 1 Exhibit (Witness List))(Cherry, Myron) (Entered: 06/16/2010)
817 PROPOSED Jury Instructions by Equal Employment Opportunity Commission, Marian Townson. (Henry, Ann) (Text edited by Clerk's Office to reflect correct filer.) Modified on 6/17/2010 (tc, ). (Entered: 06/16/2010)
818 PROPOSED Voir Dire by Equal Employment Opportunity Commission (Smason, Diane) (Entered: 06/17/2010)
819 RESPONSE by Equal Employment Opportunity Commission to MOTION by Defendant International Profit Associates, Inc. for Oral Argument on Its Motion for Order to Show Cause Why The EEOCs Section 706 Claims for Individual Damages Should Not Be Dismissed For Failure to Fulfill Statutory Prerequisites to Filing Su 815 , SEALED MOTION by Defendant International Profit Associates, Inc. for Order to Show Cause Why the EEOC's Section 706 Claims for Individual Damages Should Not Be Dismissed for Failure to Fulfill Statutory Prerequisites to Filing Suit 805 (Szromba, Jeanne) (Entered: 06/17/2010)
820 PROPOSED Voir Dire by International Profit Associates, Inc. (Cherry, Myron) (Entered: 06/17/2010)
821 MINUTE entry before Honorable Joan B. Gottschall:Briefing schedule as to MOTION by Defendant International Profit Associates, Inc. to sever Claims or, in the Alternative, for Separate Trials 813 : Responses due by 6/22/2010. Replies due by 6/25/2010. Ruling by mail. Mailed notice (rj, ) (Entered: 06/18/2010)
822 PROPOSED Jury Instructions by International Profit Associates, Inc. (Cherry, Myron) (Entered: 06/18/2010)
823 MOTION by Plaintiff Equal Employment Opportunity Commission for order to show cause Why IPA Should Not Be Held In Contempt for Failure to Comply With the Court's June 14, 2010 Order (Attachments: # 1 Exhibit)(Smason, Diane) (Entered: 06/18/2010)
824 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant International Profit Associates, Inc. to sever Claims or, in the Alternative, for Separate Trials 813 (DeCamp, Aaron) (Entered: 06/22/2010)
825 RESPONSE by Marian Townson to MOTION by Defendant International Profit Associates, Inc. to sever Claims or, in the Alternative, for Separate Trials 813 (Johnson, Dennis P.) (Entered: 06/22/2010)
826 Proposed Jury Statement by International Profit Associates, Inc. (Zolna, Jacie) (Entered: 06/23/2010)
827 PROPOSED Jury Instructions by Equal Employment Opportunity Commission, Marian Townson, International Profit Associates, Inc. (Henry, Ann) (Text edited by Clerk's Office to reflect correct filer.) Modified on 6/24/2010 (tc, ). (Entered: 06/23/2010)
828 AMENDED Schedule B of the Final Pretrial Order by Equal Employment Opportunity Commission (Henry, Ann) Modified on 6/24/2010 (tc, ). (Entered: 06/23/2010)
829 MOTION by Intervenor Plaintiff Marian Townson for leave to file Amended Complaint (Chandrasekaran, Uma) (Entered: 06/23/2010)
831 MINUTE entry before Honorable Joan B. Gottschall: Jury Instruction Conference held. Plaintiff's Motion in limine to exclude evidence of defendant's financial status

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 60 of 66

06/25/2010
06/25/2010 06/25/2010 06/28/2010 06/28/2010 06/28/2010 06/28/2010 06/28/2010 06/29/2010 06/29/2010 06/29/2010
06/29/2010 06/29/2010 06/29/2010 06/30/2010 06/30/2010 06/30/2010

799 is granted. Defendant's motion for rule to show cause 823 is denied without prejudice. Defendant is ordered to produce the telephone numbers of its prospective witnesses and to indicate which prospective witnesses it represents by the close of business on 6/25/2010. Regarding Townson's motion to amend her complaint 829 , response due 6/30/2010, reply due 7/2/2010. Further details as stated below. [For further details see minute order.] Mailed notice (tc, ) (Entered: 06/25/2010)
830 REPLY by Defendant International Profit Associates, Inc. to response to motion,, 819 , Sealed motion, 805 in Further Support of Its Motion for Order to Show Cause Why The EEOCs Section 706 Claims for Individual Damages Should Not Be Dismissed For Failure to Fulfill Statutory Prerequisites to Filing Suit (Attachments: # 1 Exhibit A−C)(Cherry, Myron) (Entered: 06/25/2010)
832 AMENDED WITNESS List by International Profit Associates, Inc. (Attachments: # 1 Exhibit Amended Witness List)(Cherry, Myron) Modified on 6/28/2010 (tc, ). (Entered: 06/25/2010)
833 REPLY by International Profit Associates, Inc. to response in opposition to motion 824 , MOTION by Defendant International Profit Associates, Inc. to sever Claims or, in the Alternative, for Separate Trials 813 (Cherry, Myron) (Entered: 06/25/2010)
834 Exhibit List by Equal Employment Opportunity Commission. (Henry, Ann) (Entered: 06/28/2010)
835 WITNESS List by Equal Employment Opportunity Commission (Henry, Ann) (Entered: 06/28/2010)
836 Exhibit List by International Profit Associates, Inc.. (Cherry, Myron) (Entered: 06/28/2010)
837 Memorandum by Equal Employment Opportunity Commission in Support of Plaintiffs' Proposed Jury Instructions (Szromba, Jeanne) (Entered: 06/28/2010)
838 Joint Amended Schedule F of Pretrial Order − Deposition Designations by Equal Employment Opportunity Commission (Smason, Diane) (Entered: 06/28/2010)
839 MINUTE entry before Honorable Joan B. Gottschall: Defendant's motion to sever claims 813 is denied. [For further details see minute order.] Mailed notice (tc, ) (Entered: 06/29/2010)
840 Agreed Jury Statement by Equal Employment Opportunity Commission (Henry, Ann) (Entered: 06/29/2010)
841 MINUTE entry before Honorable Joan B. Gottschall:In court hearing held on 6/29/2010, In Court hearing set for 7/1/2010 at 02:00 PM. Parties to submit deposition designations and further briefing regarding Federal Rule of Evidence 412 on 6/30/2010 as ordered. Mailed notice (rj, ) (Entered: 06/29/2010)
842 MOTION by Defendant International Profit Associates, Inc. to appoint counsel for Claimants (Attachments: # 1 Exhibit A−B)(Cherry, Myron) (Entered: 06/29/2010)
843 NOTICE of Motion by Myron Milton Cherry for presentment of motion to appoint counsel 842 before Honorable Joan B. Gottschall on 7/1/2010 at 02:00 PM. (Cherry, Myron) (Entered: 06/29/2010)
844 Submission on Rule 412 Proffer of Evidence by International Profit Associates, Inc. (Cherry, Myron) (Entered: 06/29/2010)
845 RESPONSE by International Profit Associates, Inc. to MOTION by Intervenor Plaintiff Marian Townson for leave to file Amended Complaint 829 (Cherry, Myron) (Entered: 06/30/2010)
846 MINUTE entry before Honorable Joan B. Gottschall:Enter order regarding defendants motion 815 . For further details see minute order. Mailed notice (rj, ) (Entered: 06/30/2010)
847 SEALED RESPONSE by Equal Employment Opportunity Commission to other 844 IPA's Rule 412 Proffer (Attachments: # 1 Exhibit)(Smason, Diane) (Entered: 06/30/2010)

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06/30/2010 07/01/2010 07/01/2010 07/01/2010 07/01/2010
07/02/2010 07/02/2010
07/02/2010 07/02/2010
07/04/2010 07/04/2010
07/05/2010 07/06/2010 07/06/2010
07/07/2010
07/07/2010 07/23/2010

848 RESPONSE by Defendant International Profit Associates, Inc. to other 837 EEOC Memorandum Regarding Jury Instruction (Cherry, Myron) (Entered: 06/30/2010)
849 RESPONSE by Plaintiff Equal Employment Opportunity Commission to text entry 846 (Henry, Ann) (Entered: 07/01/2010)
850 MOTION by Defendant International Profit Associates, Inc. to Modify June 14, 2010 Order (Cherry, Myron) (Entered: 07/01/2010)
851 NOTICE of Motion by Myron Milton Cherry for presentment of motion for miscellaneous relief 850 before Honorable Joan B. Gottschall on 7/1/2010 at 02:00 PM. (Cherry, Myron) (Entered: 07/01/2010)
852 MINUTE entry before Honorable Joan B. Gottschall: Voir Dire conference held. Regarding Defendant's Motion to Modify 850 , EEOC is ordered to file a response, if any, by close of business on 7/2/2010. IPAs Motion for Appointment of Counsel for Claimants 842 is denied without prejudice. Townson's motion in limine 795 is granted. [For further details see minute order.] Mailed notice (td, ) (Entered: 07/01/2010)
853 REPLY by Marian Townson to response to motion 845 , MOTION by Intervenor Plaintiff Marian Townson for leave to file Amended Complaint 829 (Chandrasekaran, Uma) (Entered: 07/02/2010)
854 MOTION by Defendant International Profit Associates, Inc. to Modify 6/24/10 Order and to File Response to EEOC's Motion in Limine to Exclude Evidence of Defendant's Financial Status (Attachments: # 1 Exhibit Response)(Cherry, Myron) (Entered: 07/02/2010)
855 RESPONSE by Plaintiff Equal Employment Opportunity Commission to motion for miscellaneous relief 850 to Modify June 14, 2010 Order (DeCamp, Aaron) (Entered: 07/02/2010)
856 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant International Profit Associates, Inc. to Modify 6/24/10 Order and to File Response to EEOC's Motion in Limine to Exclude Evidence of Defendant's Financial Status 854 (Smason, Diane) (Entered: 07/02/2010)
857 MOTION by Defendant International Profit Associates, Inc. to bar the EEOC From Seeking Damages For Claimant Brittney Ingram Anderson (Attachments: # 1 Exhibit A)(Cherry, Myron) (Entered: 07/04/2010)
858 MOTION by Defendant International Profit Associates, Inc.in limine to Exclude Evidence of Any Long−Term or Ongoing Emotional Distress or Physical Manifestations Thereof (Attachments: # 1 Exhibit A)(Cherry, Myron) (Entered: 07/04/2010)
859 MOTION by Defendant International Profit Associates, Inc. To Permit Evidence of Its Efforts to Communicate With Claimants (Cherry, Myron) (Entered: 07/05/2010)
860 MOTION by Intervenor Plaintiff Marian Townsonin limine to Preclude Reference to Unlawful Sexual Harassment (Chandrasekaran, Uma) (Entered: 07/06/2010)
862 MINUTE entry before Honorable Joan B. Gottschall: Jury trial Begun−Held. Voir dire held. Settlement reached by the parties. Status hearing set for 7/7/10 at 1:30PM. This order reflects an in−court ruling on 7/6/2010. Defendant's motion to dismiss for the EEOC's failure to fulfill statutory prerequisites 815 is denied. Opinion to follow. Mailed notice (tc, ) (Entered: 07/07/2010)
861 MINUTE entry before Honorable Joan B. Gottschall: Status hearing set for 7/27/2010 at 09:30 AM. If stipulation to dismiss is filed prior to 7/27/2010, no appearance required. Status hearing set for 7/7/2010 at 1:30PM is stricken by request of the parties. Mailed notice (rj, ) (Entered: 07/07/2010)
863 MINUTE entry before Honorable Joan B. Gottschall: Status hearing set for 7/27/2010 at 09:30 AM. Mailed notice (rj, ) (Entered: 07/23/2010)
864 MOTION by Intervenor Plaintiff Marian Townson for attorney fees Motion to Approve Provisional Fee Agreement (Johnson, Dennis P.) (Entered: 07/23/2010)

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07/23/2010 07/26/2010 07/26/2010 07/27/2010 07/27/2010
08/04/2010 08/06/2010
08/06/2010 08/06/2010 08/12/2010 08/13/2010 08/13/2010 08/20/2010 10/07/2010 10/07/2010 10/13/2010 10/15/2010
10/20/2010

865 MOTION by Intervenor Plaintiff Marian Townson for leave to file Under Seal (Johnson, Dennis P.) (Entered: 07/23/2010)
866 NOTICE of Motion by Dennis P. W. Johnson for presentment of motion for attorney fees 864 before Honorable Joan B. Gottschall on 7/27/2010 at 09:30 AM. (Johnson, Dennis P.) (Entered: 07/26/2010)
867 NOTICE of Motion by Dennis P. W. Johnson for presentment of motion for leave to file 865 before Honorable Joan B. Gottschall on 7/27/2010 at 09:30 AM. (Johnson, Dennis P.) (Entered: 07/26/2010)
868 SEALED EXHIBIT by Intervenor Plaintiff Marian Townson Exhibit A regarding MOTION by Intervenor Plaintiff Marian Townson for attorney fees Motion to Approve Provisional Fee Agreement 864 (Johnson, Dennis P.) (Entered: 07/27/2010)
869 MINUTE entry before Honorable Joan B. Gottschall: Status hearing held. Motion by Intervenor Marion Townson for leave to file Provisional Fee Agreement attached as Exhibit A to Motion to Approve Provisional Fee Agreement under seal 865 is granted. Fee petition(s) due by 8/6/2010. Responses by 8/13/2010. Replies by 8/20/2010. Ruling by mail. All parties are given leave to file fee petitions, responses and replies under seal as indicated in open court. Mailed notice (cdy, ) (Entered: 07/28/2010)
870 MOTION by Intervenor Plaintiff Marian Townson for attorney fees (Moran, Edward) (Entered: 08/04/2010)
871 (SEALED) PETITION by the Law Offices of Laurie J. Wasserman for the Award of Attorneys' Fees and Memorandum of Points and Authorities in Support of Same (Attachments: # 1 Certificate of Service Notice of Filing & Certificate of Service, # 2 Exhibit A, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Wasserman, Laurie) Modified on 8/10/2010 (cdy, ). (Entered: 08/06/2010)
872 SEALED EXHIBIT by Intervenor Plaintiff Marian Townson Exhibit B regarding petition, 871 (Wasserman, Laurie) (Entered: 08/06/2010)
873 SEALED Document. NOTICE OF CORRECTION (psm, ). Docket text modified by the Clerk's Office on 8/9/2010 (psm, ). (Entered: 08/06/2010)
874 SEALED DOCUMENT by Plaintiff Equal Employment Opportunity Commission Response to Plaintiff−Intervenor's Fee Petitions (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Smason, Diane) (Entered: 08/12/2010)
875 RESPONSE by Defendant International Profit Associates, Inc. to the Fee Petitions Filed by Counsel for Marion Townson (Cherry, Myron) (Entered: 08/13/2010)
876 SEALED DOCUMENT by Defendant International Profit Associates, Inc. Exhibit A to IPA's Response to the Fee Petitions Filed by Counsel for Marion Townson (Cherry, Myron) (Entered: 08/13/2010)
877 SEALED DOCUMENT by Intervenor Plaintiff Marian Townson Reply in Support of Petition to Award Attorneys' Fees and Costs (Johnson, Dennis P.) (Entered: 08/20/2010)
878 MOTION by Plaintiff Equal Employment Opportunity CommissionStatus Joint Motion (Szromba, Jeanne) (Entered: 10/07/2010)
879 NOTICE of Motion by Jeanne B. Szromba for presentment of motion for miscellaneous relief 878 before Honorable Joan B. Gottschall on 10/13/2010 at 09:30 AM. (Szromba, Jeanne) (Entered: 10/07/2010)
880 MINUTE entry before Honorable Joan B. Gottschall:Joint motion for status 878 is denied. Order forthcoming. Mailed notice (rj, ) (Entered: 10/15/2010)
881 MINUTE entry before Honorable Joan B. Gottschall: The parties are to appear on Wednesday, October 20, 2010 @ 9:30 AM. At that time they should be prepared to tell the court by what authority the court is empowered to resolve this fee dispute. (For further details see Minute Order.) Mailed notice. (psm, ) (Entered: 10/18/2010)
882 MINUTE entry before Honorable Joan B. Gottschall:In court hearing held on 10/20/2010, Status hearing set for 11/3/2010 at 09:00 AM. Mailed notice (rj, ) (Entered: 10/22/2010)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 63 of 66

11/01/2010 11/10/2010 11/12/2010 11/12/2010 11/16/2010 11/17/2010
11/17/2010 11/17/2010 12/06/2010
12/06/2010 12/06/2010 12/10/2010 12/10/2010 12/14/2010 12/17/2010

883 MINUTE entry before Honorable Joan B. Gottschall: Status hearing set for 11/3/2010 is stricken and reset to 11/10/2010 at 09:30 AM by request and agreement of the parties. Mailed notice (rj, ) (Entered: 11/01/2010)
884 MINUTE entry before Honorable Joan B. Gottschall:Status hearing held on 11/10/2010, Plaintiffs' counsel appeared. In court conference set for 11/17/2010 at 02:45 PM. All counsel and Mr. John Burgess are required to appear to discuss remaining settlement issues. Mailed notice (rj, ) (Entered: 11/12/2010)
885 SEALED MOTION by Plaintiff Equal Employment Opportunity Commission to Enforce Settlement (Attachments: # 1 Exhibit A, B, and C)(Szromba, Jeanne) (Entered: 11/12/2010)
886 NOTICE of Motion by Aaron R. DeCamp for presentment of Sealed motion 885 before Honorable Joan B. Gottschall on 11/17/2010 at 02:45 PM. (DeCamp, Aaron) (Entered: 11/12/2010)
887 ATTORNEY Appearance for Defendant International Profit Associates, Inc. by Ronald Lee Bell (Bell, Ronald) (Entered: 11/16/2010)
888 MINUTE entry before Honorable Joan B. Gottschall:In court conference held. Enter Order. Motion by the law firm of Myron M. Cherry & Associates, LLC to withdraw as counsel for International Profit Associates, Inc. is granted. Enter Order. Oral motion by Ronald Bell for leave to file appearance on behalf of defendant is granted. Briefing schedule as to Sealed Motion by Plaintiff to enforce settlement 885 as follows: Responses by 12/6/10. Replies by 12/10/10. Ruling by mail. (For further detail see separate orders.)Mailed notice. (psm, ) (Entered: 11/23/2010)
889 ORDER signed by the Honorable Joan B. Gottschall on 11/17/2010.(psm, ) (Entered: 11/23/2010)
890 MOTION by Myron M. Cherry & Associates, LLC to withdraw as counsel for International Profit Associates, Inc. (psm, ) (Entered: 11/23/2010)
891 RESPONSE by International Profit Associates, Inc. to SEALED MOTION by Plaintiff Equal Employment Opportunity Commission to Enforce Settlement 885 (Attachments: # 1 Affidavit Affidavit of John Burgess, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E (Part 1), # 7 Exhibit Exhibit E (Part 2), # 8 Exhibit Exhibit F (Part 1), # 9 Exhibit Exhibit F (Part 2), # 10 Exhibit Exhibit F (Part 3), # 11 Exhibit Exhibit F (Part 4), # 12 Exhibit Exhibit F (Part 5), # 13 Exhibit Exhibit F (Part 6), # 14 Exhibit Exhibit F (Part 7), # 15 Exhibit Exhibit F (Part 8), # 16 Exhibit Exhibit F (Part 9), # 17 Exhibit Exhibit F (Part 10), # 18 Exhibit Exhibit F(Part 11), # 19 Exhibit Exhibit F (Part 12), # 20 Exhibit Exhibit F (Part 13), # 21 Exhibit Exhibit F (Part 14))(Bell, Ronald) (Entered: 12/06/2010)
892 NOTICE by International Profit Associates, Inc. re response to motion,,, 891 (Bell, Ronald) (Entered: 12/06/2010)
893 ATTORNEY Appearance for Defendant International Profit Associates, Inc. by Ronald Lee Bell pursuant to 11−17−10 court order (Bell, Ronald) (Entered: 12/06/2010)
894 SEALED REPLY by Equal Employment Opportunity Commission to SEALED MOTION by Plaintiff Equal Employment Opportunity Commission to Enforce Settlement 885 (Attachments: # 1 Exhibit Emails)(Smason, Diane) (Entered: 12/10/2010)
895 MEMORANDUM by Marian Townson in support of Sealed motion 885 BY EEOC TO ENFORCE SETTLEMENT AND IN REPLY TO IPAS MOTION TO ENFORCE THE AGREEMENT REACHED ON JULY 6, 2010 (Johnson, Dennis P.) (Entered: 12/10/2010)
896 REPLY by International Profit Associates, Inc. to reply 894 (Attachments: # 1 Exhibit Exhibit A)(Bell, Ronald) (Entered: 12/14/2010)
897 SEALED REPLY by Equal Employment Opportunity Commission to reply to response to motion 896 Sealed Sur−Reply to Defendant's Motion to Enforce the Agreement Reached on July 6, 2010 (Attachments: # 1 Exhibit Draft consent decree)(Smason, Diane) (Entered: 12/17/2010)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 64 of 66

01/28/2011
01/28/2011 02/01/2011 02/01/2011 02/01/2011 02/03/2011 02/09/2011
02/10/2011 02/22/2011 02/22/2011 02/22/2011 02/25/2011 02/25/2011 02/28/2011

898 MINUTE entry before Honorable Joan B. Gottschall: This Court received an email from Wendy Commander with an attached letter dated 1/28/2011. It is hereby ordered that any attempt by a litigant to communicate with a judge without notice to the opposing party is sanctionable conduct and a blatant violation of due process. Any correspondence to the court MUST be copied to the opposing party. Otherwise, you are attempting to have an ex parte communication with the court which is ethically impermissible. If you wish, the court will set a hearing date at which time you may express your views. However, at any such hearing all sides must be present.Mailed notice (rj, ) (Entered: 01/28/2011)
899 LETTER from Wendy Commander dated 1/28/11. (psm, ) (Entered: 01/28/2011)
900 MINUTE entry before Honorable Joan B. Gottschall: Oral argument regarding SEALED MOTION by Plaintiff Equal Employment Opportunity Commission to Enforce Settlement 885 set for 2/10/2011 at 10:15 AM (15 minutes per side with 5 minutes to Townson for argument). Mailed notice (rj, ) (Entered: 02/01/2011)
901 EMERGENCY MOTION by Defendant International Profit Associates, Inc. to reset February 10, 2011 Court Date (Bell, Ronald) Modified on 2/3/2011 (cdy, ). (Entered: 02/01/2011)
902 NOTICE of Motion by Ronald Lee Bell for presentment of motion to reset 901 before Honorable Joan B. Gottschall on 2/4/2011 at 09:30 AM. (Attachments: # 1 Motion to Reset 2−10−11 Court Date)(Bell, Ronald) (Entered: 02/01/2011)
903 MINUTE entry before Honorable Joan B. Gottschall: Motion to reset 901 is granted. Oral argument regarding SEALED MOTION by Plaintiff Equal Employment Opportunity Commission to Enforce Settlement 885 set for 2/10/2011 at 10:15 AM is stricken and reset to 2/9/2011 at 10:30AM. (15 minutes per side with 5 minutes to Townson for argument). Mailed notice (rj, ) (Entered: 02/03/2011)
904 MINUTE entry before Honorable Joan B. Gottschall: Oral argument held. The parties' joint motion to enforce the settlement agreement 885 891 is granted insofar as the court will enforce the agreement reached in court on the record on July 6, 2010 (as memorialized in the transcript filed under seal as Doc. 885, Ex. A). The parties may submit briefs by February 22, 2011 as to the following two outstanding issues: (1) whether the court can enforce an acceleration term that was not put on the record of agreement, and (2) whether the court can modify the settlement agreement to grant the plaintiffs a security interest in life insurance policies in lieu of a security interest in certain homes given that the home liens that were previously agreed to are unenforceable. Mailed notice (rj, ) (Entered: 02/10/2011)
905 ATTORNEY Appearance for Defendant International Profit Associates, Inc. by Christopher Anthony Harris (Harris, Christopher) (Entered: 02/10/2011)
906 Plaintiffs' Joint Statement Concerning Settlement Terms STATEMENT by Equal Employment Opportunity Commission (Szromba, Jeanne) (Entered: 02/22/2011)
907 MOTION by Defendant International Profit Associates, Inc. to seal Defendant's Brief as to the Two Issues Raised in the Order Dated February 10, 2011 (Bell, Ronald) (Entered: 02/22/2011)
908 SEALED DOCUMENT by Defendant International Profit Associates, Inc. Sealed Brief as to the Two Issues Raised in the Order Date February 10, 2011 (Attachments: # 1 Exhibit Sealed Exhibit A, # 2 Exhibit Sealed Exhibit B)(Bell, Ronald) (Entered: 02/22/2011)
909 MOTION by Plaintiff Equal Employment Opportunity Commission for order to show cause Why IPA Should Not Be Held In Contempt for Failure to Comply with February 9, 2011 Order (Attachments: # 1 Exhibit 2−09−11 Transcript, # 2 Exhibit 2−9−11 Order)(Smason, Diane) (Entered: 02/25/2011)
910 NOTICE of Motion by Diane Ilene Smason for presentment of motion for order to show cause, 909 before Honorable Joan B. Gottschall on 3/2/2011 at 09:30 AM. (Smason, Diane) (Entered: 02/25/2011)
911 SEALED MOTION by Defendant International Profit Associates, Inc. to Enforce Attached Proposed Settlement Decree (Attachments: # 1 Exhibit Sealed Exhibit A, # 2

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 65 of 66

02/28/2011 03/02/2011 03/02/2011
03/02/2011 03/03/2011 03/07/2011 03/08/2011 03/08/2011 03/09/2011
03/15/2011
03/15/2011 03/24/2011 04/07/2011 08/17/2011 01/04/2012

Exhibit Sealed Exhibit B, # 3 Exhibit Sealed Exhibit C)(Bell, Ronald) (Entered: 02/28/2011)
912 NOTICE of Motion by Ronald Lee Bell for presentment of Sealed motion 911 before Honorable Joan B. Gottschall on 2/2/2011 at 09:30 AM. (Bell, Ronald) (Entered: 02/28/2011)
914 RESTRICTED document. (lw, ) (Entered: 03/04/2011)
916 MINUTE entry before Honorable Joan B. Gottschall. Motion hearing held. Motion by Defendant IPA to seal Defendant's brief as to the two issues raised in the Order dated February 10, 2011 907 is granted. EEOC's motion for order to show cause why IPA should not be held in contempt for failure to comply with February 9, 2011 Order 909 is entered and continued to 3/9/2011 at 9:30AM. Defendant's sealed motion to enforce attached proposed settlement decree 911 is entered and continued to 3/9/2011 at 9:30AM. Enter Consent Decree. Exhibit 7 to the Consent Decree entered 3/2/2011 is filed as a sealed document. Mailed notice (lw, ) (Entered: 03/07/2011)
917 CONSENT DECREE by Equal Employment Opportunity Commission, International Profit Associates, Inc., Phyllis Lopez, Rhonda Porter, Marian Townson. (Attachments: # 1 Exhibits)(lw, ) Modified on 4/7/2011 (rp, ). (Entered: 03/07/2011)
913 SEALED MOTION by Plaintiff Equal Employment Opportunity Commission Sealed Exhibit 7 to Consent Decree (Szromba, Jeanne) (Entered: 03/03/2011)
915 Notice of Withdrawal of Doc. # 913 by Equal Employment Opportunity Commission (Szromba, Jeanne) (Entered: 03/07/2011)
918 Release of Attorneys' Fees Lien by Marian Townson Pugh Jones JOhnson & Quandt, PC's Release of Attorneys' Fees Lien (Johnson, Dennis P.) (Entered: 03/08/2011)
919 Release of Attorneys' Fees Lien by Marian Townson Release of Attorneys' Fees Lien on the behalf of Laurie J. Wasserman by Dennis P.W. Johnson (Johnson, Dennis P.) (Entered: 03/08/2011)
920 MINUTE entry before Honorable Joan B. Gottschall. Motion hearing set for 3/9/11 is stricken by request of the parties. Sealed Motion by Plaintiff to seal exhibit 7 to consent decree 913 is withdrawn pursuant to Notice of Withdrawal 915 . Motion by Plaintiff to Show Cause 909 is withdrawn. Sealed motion by Defendant to enforce attached proposed settlement decree 911 is withdrawn. Mailed notice (lw, ). (Entered: 03/10/2011)
921 MINUTE entry before Honorable Joan B. Gottschall. Enter Order to Remove Extraneous Pages from Doc. #917. It is hereby ordered that pages 30−31 (as numbered in pdf), which comprise the Mutual General Release Agreement signed by Plaintiff−Intervenor Marion Townson, shall be removed from Doc. #917, the Consent Decree, as those pages were included in the document by error. [For further detail see minute order.] Mailed notice (lw, ). (Entered: 03/21/2011)
922 ORDER to remove extraneous pages from Doc. #917. Signed by the Honorable Joan B. Gottschall on 3/15/2011. (lw, ) (Entered: 03/21/2011)
923 MINUTE entry before Honorable Joan B. Gottschall. Since a consent decree resolving this matter was entered on March 2, 2011 (See Docs. 916−17), the parties outstanding motions 805 , 806 , 807 , 829 , 850 , 854 , 857 , 858 , 859 , 860 , 864 , and 870 are denied as moot. Mailed notice (lw, ). (Entered: 03/25/2011)
924 MINUTE entry before Honorable Joan B. Gottschall:It is hereby ordered that the Consent Decree # 917 is hereby unsealed and shall be placed on the court's docket for public view. Mailed notice (rp, ) (Entered: 04/07/2011)
925 NOTICE by Dennis P. W. Johnson of Change of Address Notification of Change of Firm Name (Johnson, Dennis P.) (Entered: 08/17/2011)
926 MOTION by Plaintiff Equal Employment Opportunity CommissionSubstitute Exhibits Unopposed (Attachments: # 1 Exhibit New Exhibits 4−6)(Szromba, Jeanne) (Entered: 01/04/2012)

Case: 1:01-cv-4427 As of: 06/04/2017 06:08 PM CDT 66 of 66

01/04/2012 01/11/2012 02/23/2012 05/08/2012
03/04/2013 05/14/2013 05/14/2013 05/22/2013 03/10/2014 03/10/2014 03/10/2014 03/13/2014

927 NOTICE of Motion by Jeanne B. Szromba for presentment of motion for miscellaneous relief 926 before Honorable Joan B. Gottschall on 1/11/2012 at 09:30 AM. (Szromba, Jeanne) (Entered: 01/04/2012)
928 MINUTE entry before Honorable Joan B. Gottschall. Unopposed motion to substitute new exhibits 4−6 replacing original exhibits 4−6 which are currently part of Docket #917 and #917−1 926 is granted. Mailed notice (lw, ). (Entered: 01/12/2012)
929 REPORT by George Galland to the Parties and the Court Pursuant to Paragraph 39 of the Consent Decree (Galland, George) (Docket Text modified by Clerks' Office.) (Entered: 02/23/2012)
930 MINUTE entry before Honorable Joan B. Gottschall: It is hereby ordered that this action and related cases 02 C 2790 and 02 C 4281 are dismissed pursuant to Consent Decree entered 3/2/2011. Civil case terminated. Mailed notice (rj, ) (Entered: 05/08/2012)
931 REPORT TO THE PARTIES AND THE COURT PURSUANT TO PARAGRAPH 40 OF THE CONSENT DECREE by George Galland (Galland, George) (Entered: 03/04/2013)
932 MOTION by Plaintiff Equal Employment Opportunity Commission to amend/correct other 917 Consent Decree (Unopposed) (Szromba, Jeanne) (Entered: 05/14/2013)
933 NOTICE of Motion by Jeanne B. Szromba for presentment of motion to amend/correct, motion for relief 932 before Honorable Joan B. Gottschall on 5/22/2013 at 09:30 AM. (Szromba, Jeanne) (Entered: 05/14/2013)
934 MINUTE entry before Honorable Joan B. Gottschall: Unopposed motion by Plaintiff to amend consent decree 932 is granted. Mailed notice (rj, ) (Entered: 05/22/2013)
935 Report by George Galland −− FINAL REPORT TO THE PARTIES AND THE COURT PURSUANT TO PARAGRAPH 40 OF THE CONSENT DECREE (Galland, George) (Entered: 03/10/2014)
936 MOTION by Plaintiff Equal Employment Opportunity Commission for disbursement of funds Agreed Motion to Approve Distribution of Excess Settlement Fund Amounts (Henry, Ann) (Entered: 03/10/2014)
937 NOTICE of Motion by Ann M Henry for presentment of motion for disbursement of funds 936 before Honorable Joan B. Gottschall on 3/14/2014 at 09:30 AM. (Henry, Ann) (Entered: 03/10/2014)
938 MINUTE entry before the Honorable Joan B. Gottschall: Plaintiff's Agreed Motion to Approve Distribution of Excess Settlement Fund Amounts 936 is granted. Motion hearing set for 3/14/2014 is stricken. No appearance is required. Mailed notice (ef, ) (Entered: 03/13/2014)

 </s> Case: 1:01-cv-4428 As of: 07/23/2008 03:54 PM CDT 1 of 4
CSTRANSF, LEVIN, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 3.2.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:01−cv−04428

EEOC v. Intl Profit Assc Inc, et al Assigned to: Honorable Ruben Castillo Demand: $0 Cause: 42:2000 Job Discrimination (Sex)
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 06/12/2001 Date Terminated: 10/10/2001 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Jeanne B. Szromba United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 353−7546 Email: jeanne.szromba@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353−5300 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED
Diane Ilene Smason United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 353−7526 Fax: 312−353−8555 Email: diane.smason@eeoc.gov ATTORNEY TO BE NOTICED
Gregory M. Gochanour United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 886−9124 Email: gregory.gochanour@eeoc.gov ATTORNEY TO BE NOTICED
John C. Hendrickson United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353−8551 Fax: (312) 353−8555 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

Case: 1:01-cv-4428 As of: 07/23/2008 03:54 PM CDT 2 of 4

V. Defendant International Profit Associates, Inc.
Defendant Arnold &Sons Plumbing, Inc. TERMINATED: 08/16/2001
Defendant Arnold &Sons Plumbing − Heating − Air Conditioning, Inc. Intervenor Plaintiff Lynn Zachman

represented by Ronald Lee Bell Ronald L. Bell &Associates 1250 Barclay Blvd. #100 Buffalo Grove, IL 60089 (847) 495−6000 Email: rlbelllawyer@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by L. Lee Smith Hinshaw &Culbertson 456 Fulton Street Suite 298 Peoria, IL 61602 (309) 674−1025 TERMINATED: 08/16/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L. Saper Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000 TERMINATED: 08/16/2001
Daniel Keenan Ryan Hinshaw &Culbertson 222 North LaSalle Street Suite 300 Chicago, IL 60601−1081 (312) 704−3000 Email: dryan@hinshawlaw.com TERMINATED: 08/16/2001 ATTORNEY TO BE NOTICED
Stephen M Morris Hinshaw &Culbertson 456 Fulton Street Suite 298 Peoria, IL 61602 (309) 674−1025 TERMINATED: 08/16/2001
represented by Christopher P. Ryan Kingery Durree Wakeman &Ryan Assoc. 416 Main Street Suite 915 Peoria, IL 61602 (309) 676−3612

Case: 1:01-cv-4428 As of: 07/23/2008 03:54 PM CDT 3 of 4 ATTORNEY TO BE NOTICED

Date Filed 06/12/2001
06/15/2001
07/18/2001 07/23/2001 07/27/2001 07/30/2001 08/02/2001 08/10/2001 08/13/2001 08/13/2001 08/13/2001 08/14/2001 08/14/2001 08/14/2001
08/16/2001 08/16/2001
08/16/2001 08/28/2001

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of John C. Hendrickson, Gregory M. Gochanour, Diane Ilene Smason, Jeanne B. Szromba as attorney(s) for plaintiff ( no summons(es) issued.) ( Documents: 1−1 through 1−3) (tlm) (Entered: 06/13/2001)
SCHEDULE set on 6/15/01 by Hon. Ruben Castillo : Status hearing set for 9:45 a.m. on 8/14/01. Parties to file a joint status report on or before 8/10/01. (SEE REVERSE SIDE OF THIS ORDER FOR FURTHER INFORMATION.) Counsel for plaintiff to notify all other parties of the Court's Order. mailed notice (rao) (Entered: 06/15/2001)
2 WAIVER of service of summons as to defendants Intl Profit Assc Inc. sent on 06/12/01, Arnold &Sons sent on 6/12/01 (2−1 through 2−2). (mw) (Entered: 07/19/2001)
3 WAIVER of service of summons as to defendant Arnold &Sons sent on 6/12/01. (mw) (Entered: 07/24/2001)
4 MOTION by intervenor plaintiff to intervene . (mw) (Entered: 07/30/2001)
5 APPLICATION for leave to appear pro hac vice by Christopher P. Ryan for intervenor plaintiff; Order entered granting leave by Hon. Ruben Castillo. (mw) (Entered: 08/01/2001)
SCHEDULE set on 8/2/01 by Hon. Ruben Castillo : Status hearing reset to 9:15 a.m. on 8/14/01. Parties are to note that all that is being changed is the time of the hearing and not the date. mailed notice (rao) (Entered: 08/02/2001)
6 INITIAL STATUS REPORT by plaintiff; Notice. (mw) (Entered: 08/13/2001)
7 ATTORNEY APPEARANCE for defendant Arnold &Sons by Daniel Keenan Ryan, Stephen M Morris, Adam L. Saper, L. Lee Smith. (mw) (Entered: 08/14/2001)
8 ANSWER by defendant Arnold &Sons to plaintiff's complaint [1−1]; jury demand. (mw) (Entered: 08/14/2001)
9 MOTION by defendant Arnold &Sons for transfer of venue ; Memorandum in support; Affidavit of Douglas R. Arnold; Notice. (mw) Modified on 08/14/2001 (Entered: 08/14/2001)
10 ATTORNEY APPEARANCE for defendant Intl Profit Assc Inc by Ronald Lee Bell. (mw) (Entered: 08/14/2001)
11 ANSWER by defendant Intl Profit Assc Inc to plaintiff's complaint [1−1]; jury demand; Notice. (mw) (Entered: 08/14/2001)
12 MINUTE ORDER of 8/14/01 by Hon. Ruben Castillo : Status hearing held. Intervenor/plaintiff Zachman's motion to intervene [4−1] is granted without objection. Any objections to defendant Arnold &Sons Plumbing's motion for transfer of venue [9−1] are due on or before 08/29/01. Defendant's reply will be due on or before 09/05/01. The Court will rule by mail. Mailed notice (mw) (Entered: 08/15/2001)
13 MOTION by plaintiff for leave to file first amended complaint ; Notice. (mw) (Entered: 08/17/2001)
14 MINUTE ORDER of 8/16/01 by Hon. Ruben Castillo : Plaintiff's motion for leave to file first amended complaint is granted [13−1]. The parties do not need to appear for the motion call on 08/23/01. Mailed notice (mw) Modified on 08/17/2001 (Entered: 08/17/2001)
15 FIRST AMENDED COMPLAINT [1−1] by plaintiff; jury demand terminating defendant Arnold &Sons Plumbing; adding Arnold &Sons Plumbing − Heating − Air Conditioning, Inc. (mw) (Entered: 08/17/2001)
16 JOINT RESPONSE by intervenor plaintiff Lynn Zachman, and plaintiff to defendant Arnold &Sons's motion for transfer of venue [9−1]; Notice. (mw) (Entered:

Case: 1:01-cv-4428 As of: 07/23/2008 03:54 PM CDT 4 of 4

09/10/2001 09/20/2001 10/10/2001
10/24/2001 10/29/2001 10/30/2001

08/29/2001)
17 REPLY by defendant Arnold &Sons to defendants EEOC and Zachman's joint response to motion for transfer of venue [16−1]; Notice. (mw) (Entered: 09/10/2001)
18 MINUTE ORDER of 9/20/01 by Hon. Ruben Castillo : Plaintiff EEOC is given until 09/27/01 to take any appropriate action to consolidate this lawsuit as a related case to 01 C 4427. If the EEOC believes that this case is not related to 01 C 4427 such a statement should be filed with this Court on or before 09/27/01. Mailed notice (mw) (Entered: 09/20/2001)
19 MINUTE ORDER of 10/10/01 by Hon. Ruben Castillo : After a careful review of the relevant pleadings and consulation with Judge Gottschall, this Court concludes that the defendant's pending motion for transfer of venue [9−1] must be granted. The alleged conduct and its witnesses are located in the Central District of Illinois − which is the situs of material events. Therefore, this lawsuit is hereby transferred to the Central District of Illinois. This transfer will not prevent coorinated discovery with the separate case pending against co−defendant IPA in this district. Case transferred to Central Dist of: Illinois , terminating case. Mailed notice (mw) (Entered: 10/10/2001)
CERTIFIED AND TRANSMITTED the complete record to the USDC for the Central District of Illinois − Peoria consisting of one volumes of pleadings, original transfer order and certified copy of docket entries, transmittal letter, via certified mail no. 7000 0600 0023 6749 7052 : Mailed copy transmittal letter to counsel of record. (mw) (Entered: 10/24/2001)
20 RETURN of U.S. Post Office receipt #P7000 0600 0023 6749 7052 received 10/26/01. (mw) (Entered: 10/29/2001)
21 ACKNOLEDGMENT of receipt of record from Central Dist. of IL case no. 01−1425. (mw) (Entered: 10/30/2001)

 </s> 15, CLOSED, REFER
U.S. District Court CENTRAL DISTRICT OF ILLINOIS (Peoria) CIVIL DOCKET FOR CASE #: 1:01−cv−01425−JBM−JAG

Equal Employment Opp v. International Pro, et al Assigned to: Chief Judge Joe Billy McDade Referred to: Mag. Judge John A. Gorman Demand: $0 Case in other court: NDIL, 01−04428 Cause: 42:2000 Job Discrimination (Sex)
Plaintiff

Date Filed: 10/26/2001 Date Terminated: 05/19/2003 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opp

represented by Diane I Smason EEOC Equal Employment Opportunity Commission Ste 2800 500 W Madison St Chicago , IL 60661 (312) 353−7659 Fax: 312−353−8555 Email: diane.smason@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M Gochanour EEOC Equal Employment Opportunity Commission Ste 2800 500 W Madison St Chicago , IL 60661 312−886−9124 Fax: 312−353−8555 Email: gregory.gochanour@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeanne B Szromba UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 W Madison Ste 2800 Chicago , IL 60661 312−353−7546 Fax: 312−353−8555 Email: jeanne.szromba@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

John C Hendrickson EEOC Equal Employment Opportunity Commission Ste 2800 500 W Madison St Chicago , IL 60661 312−353−8551 Fax: 312−353−8555 Email: john.hendrickson@eeoc.gov LEAD ATTORNEY

V. Intervenor Plaintiff Lynn Zachman
V. Defendant International Profit Associates, Inc TERMINATED: 09/23/2002

ATTORNEY TO BE NOTICED
represented by Christopher P Ryan KINGERY DURREE WAKEMAN &RYAN 915 Commerce Bank Bldg Peoria , IL 61602 309−676−3612 Fax: 309−676−1329 Email: chrisryan333@sbcglobal.net TERMINATED: 11/22/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane I Smason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory M Gochanour (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeanne B Szromba (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C Hendrickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cary Neal Goldberg MYRON M CHERRY &ASSOC LLC Suite 2300 30 N LaSalle St Chicago , IL 60602 (312) 372−2100 TERMINATED: 09/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Myron M Cherry MYRON M CHERRY &ASSOC LLC Suite 2300 30 N LaSalle St Chicago , IL 60602 (312) 372−2100 TERMINATED: 09/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald L Bell RONALD L BELL &ASSOCIATES

Defendant Arnold &Sons Plumbing−Heating−Air Conditioning, Inc
Defendant Gary M Dickhaus TERMINATED: 09/23/2002

1250 Barclay Blvd #100 Buffalo Grove , IL 60089 (847) 495−6000 TERMINATED: 09/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel K Ryan HINSHAW &CULBERTSON Ste 300 222 N LaSalle St Chicago , IL 60601−1081 (312) 704−3000 Fax: 312−704−3001 Email: dryan@hinshawlaw.com TERMINATED: 12/19/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathy R Chamberlain HOWARD HABECKER &MORRIS LLC Suite 398 456 Fulton St Peoria , IL 61602 309−671−4555 Fax: 309−671−4556 Email: kchamber@hhmlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
L Lee Smith HINSHAW &CULBERTSON Ste 600 416 Main Street Peoria , IL 61602 309−674−1025 Fax: 309−674−9328 Email: lsmith@hinshawlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M Morris HOWARD HABECKER &MORRIS LLC Suite 398 456 Fulton St Peoria , IL 61602 309−671−4555 Fax: 309−671−4556 Email: smorris@hhmlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/12/2001

#

Docket Text

1 COMPLAINT (summons(es) issued) case referred to Mag. Judge John A. Gorman (CAD, ilcd) (Entered: 10/26/2001)

08/13/2001 08/14/2001 08/16/2001 10/26/2001
10/26/2001 10/29/2001
11/05/2001 11/05/2001 11/14/2001
11/16/2001 12/03/2001 12/04/2001 12/05/2001 12/06/2001
12/12/2001 12/17/2001

8 ANSWER TO COMPLAINT by defendant Arnold &Sons Plumb; jury demand (CAD, ilcd) (Entered: 10/26/2001)
11 ANSWER/AFFIRMATIVE DEFENSES by defendant International Pro; jury demand (CAD, ilcd) (Entered: 10/26/2001)
15 FIRST AMENDED COMPLAINT by plaintiff Equal Employment Opp; jury demand [1−1] (CAD, ilcd) (Entered: 10/26/2001)
20 ORIGINAL FILE, certified copy of transfer order, and docket sheet received from NDIL; documents 1 through 19 received; letter mailed to all counsel advising of new case number in the Peoria Division is 01−1425. Case referred to Mag. Judge John A. Gorman. (CAD, ilcd) (Entered: 10/26/2001)
21 LETTER to all counsel advising of new case number in Peoria Division 01−1425. (CAD, ilcd) (Entered: 10/26/2001)
MINUTE−ENTRY: by Mag. Judge John A. Gorman: Initial pretrial/ Rule 16 conference set at 10:00 a.m. on Tuesday, 11/27/01 in person. Rule 16 notice enclosed. Plaintiff to notify the defendant of hearing. (cc: all counsel) (CAD, ilcd) (Entered: 10/29/2001)
22 AGREED MOTION by plaintiff, intervenor−plaintiff, defendants for protective order (CL, ilcd) (Entered: 11/06/2001)
23 STIPULATED PROTECTIVE ORDER by Mag. Judge John A. Gorman : granting motion for protective order [22−1]. (cc: all counsel) (CL, ilcd) (Entered: 11/06/2001)
MINUTE−ENTRY: by Mag. Judge John A. Gorman: At the request of all parties the Rule 16 conference previously set at 10:00 a.m. on 11/27/01 is reset to 1:30 p.m. on Thursday, 12/6/01 by phone. Court to set up the call. (cc: all counsel) (CAD, ilcd) (Entered: 11/14/2001)
24 MOTION by plaintiff Equal Employment Opp to compel (CAD, ilcd) (Entered: 11/16/2001)
26 RESPONSE by defendant Arnold &Sons Plumb to EEOC'S motion to compel [24−1] (CAD, ilcd) (Entered: 12/05/2001)
25 NOTICE of service of discovery documents by defendant Arnold &Sons Plumb (HK, ilcd) (Entered: 12/05/2001)
27 PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN filed by plaintiff Equal Employment Opp, intervenor−plaintiff Lynn Zachman, defendants International Pro, Arnold &Sons Plumb (CAD, ilcd) (Entered: 12/06/2001)
MINUTE−ENTRY: by Mag. Judge John A. Gorman. Attys Smason and Szromba/Ryan/Smith/Cherry for Rule 16 hearing at 1:30 on Thursday, 12/6/01. Discussion held re: motion to compel #24. Motion to compel #24 is moot. Case set for discovery ddl 8/12/02, motion filing ddl 9/16/02, final pretrial conference at 2:30 on Thursday, 12/19/02 (meet with the law clerk at 1:30 for jury instruction conferene); jury trial set for 9:00 on 1/13/03 both in person in Peoria before Chief Judge McDade. Proposed discovery plan approved with changes. (cc: all counsel) (KB, ilcd) Modified on 12/07/2001 (Entered: 12/07/2001)
28 MOTION by defendant International Pro for summary judgment (CAD, ilcd) (Entered: 12/14/2001)
29 MOTION by defendant Arnold &Sons Plumb to withdraw attorney Daniel K Ryan (CAD, ilcd) (Entered: 12/19/2001)

12/19/2001 01/03/2002 01/03/2002 01/09/2002 01/14/2002 01/22/2002 01/24/2002 03/06/2002 03/25/2002 04/05/2002 04/05/2002 04/18/2002
05/10/2002
05/16/2002

30 ORDER by Chief Judge Joe B. McDade granting motion to withdraw attorney Daniel K Ryan [29−1]; terminating attorney Daniel K Ryan for Arnold &Sons Plumb (cc: all counsel) (SH, ilcd) (Entered: 12/20/2001)
31 JOINT RESPONSE by plaintiff Equal Employment Opp, and intervenor−plaintiff Lynn Zachman to Defendant International Profit Associates, Inc.'s Motion for Summary Judgment [28−1](CAD, ilcd) Modified on 01/04/2002 (Entered: 01/04/2002)
32 NOTICE of Filing by plaintiff Equal Employment Opp, and intervenor−plaintiff Lynn Zachman in re: Joint Response to Defendant International Profit Associates, Inc.'s Motion for Summary Judgment (CAD, ilcd) (Entered: 01/04/2002)
33 LETTER to Clerk from Kingery Duree Wakeman and Ryan, Assoc. dated 1/9/02 with original affidavit of Lynn Zachman. (CAD, ilcd) Modified on 01/14/2002 (Entered: 01/11/2002)
34 REPLY by defendant International Pro in support of its motion for summary judgment [28−1] (CAD, ilcd) (Entered: 01/16/2002)
35 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 26(a) by plaintiff Equal Employment Opp (CAD, ilcd) (Entered: 01/23/2002)
36 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 26(a) by intervenor−plaintiff Lynn Zachman (CAD, ilcd) (Entered: 01/24/2002)
37 MOTION by defendant Arnold &Sons Plumb to compel (CAD, ilcd) (Entered: 03/07/2002)
38 NOTICE OF SERVICE OF DISCOVERY DOCUMENTS by intervenor−plaintiff Lynn Zachman (CAD, ilcd) (Entered: 03/25/2002)
39 MOTION by defendant International Pro to stay discovery and to extend the fact discovery cutoff date (HK, ilcd) (Entered: 04/08/2002)
40 RESPONSE by defendant Arnold &Sons Plumb to IPA's motion to stay discovery [39−1], motion to extend the fact discovery date [39−2] (HK, ilcd) (Entered: 04/08/2002)
41 ORDER by Chief Judge Joe B. McDade: Before the Court is Defendant International Profit Associates, Inc.'s Motion to Stay Discovery and Extend the Fact Discovery Cutoff Date [39−1,2]. The Court will stay discovery until it has ruled on Defendant International Profit Associates, Inc.'s Motion for Summary Judgment [28−1] and extend that fact discovery date to a date 90 days after the disposition of the Motion for Summary Judgment. Accordingly, the original fact discovery deadline of July 31, 2002 is vacated . (cc: all counsel) (CAD, ilcd) (Entered: 04/18/2002)
42 ORDER by Chief Judge Joe B. McDade: IT IS THEREFORE ORDERED that Defendant IPA's Motion for Summary Judgment [28−1] is GRANTED. IT IS FURTHER ORDERED that Defendant IPA is dismissed as a party to this case and that the stay on discovery ordered in the Court's Order of April 18, 2002 [41−1] is hereby vacated. Discovery is to be extended to 90 days after the entry of this Order. Discovery ddl set 8/8/02 . This case is referred back to Mag. Judge John A. Gorman for further proceedings. (cc: all counsel) (CAD, ilcd) (Entered: 05/13/2002)
43 ORDER by Mag. Judge John A. Gorman: The supplemental scheduling conference and a hearing on the motion to compel

05/23/2002 05/23/2002 05/31/2002 05/31/2002 05/31/2002 06/04/2002
07/12/2002
07/30/2002 07/31/2002 08/15/2002 08/19/2002 09/23/2002
10/30/2002

[37−1] is set for Tuesday, June 4, 2002, at 2:30 p.m. by telephone. The court will place the call. If plaintiffs intend to respond to the motion to compel, their response is to be filed on or before May 27, 2002. (cc: all counsel) (CAD, ilcd) (Entered: 05/16/2002)
44 RESPONSE by intervenor−plaintiff Lynn Zachman to motion to compel [37−1] (RK, ilcd) Modified on 06/06/2002 (Entered: 05/23/2002)
44 MOTION by intervenor−plaintiff Lynn Zachman to stay discovery (CAD, ilcd) (Entered: 06/06/2002)
45 ATTORNEY APPEARANCE by Lee Smith, Stephen Morris and Kathy Murphy for defendant Arnold &Sons Plumb (RK, ilcd) (Entered: 05/31/2002)
46 RESPONSE by defendant Arnold &Sons Plumb to motion to stay discovery [44−1] and Reply to Response to Motion to Compel (RK, ilcd) Modified on 06/06/2002 (Entered: 05/31/2002)
46 REPLY by defendant Arnold &Sons Plumb to Response to Motion to Compel [44−1] (RK, ilcd) (Entered: 05/31/2002)
MINUTE−ENTRY: by Mag. Judge John A. Gorman: Parties present via phone by attorneys Smason/Szromba/Ryan/Smith for motion hearing held at 2:30 p.m. on Tuesday, 6/4/02. Motion to compel [37−1] is granted. Motion to stay discovery [44−1] is deferred until telephone status conference set at 1:30 p.m. on Friday, 7/12/02 , at which time the status of the appeal deadline and a supplemental discovery conference will be discussed. All current discovery deadlines are vacated until further order. (cc: all counsel) (CAD, ilcd) (Entered: 06/06/2002)
MINUTE−ENTRY: by Mag. Judge John A. Gorman. Parties present by phone by Attys Smason/Ryan/Smith for Telephone Status conference held at 1:30 p.m. on 7/12/02 . Same held. Oral motion by plaintiff for leave to amend pleading, GRANTED. Plaintiff to file amend pleading on or before 7/31/02 . Upon filing of answer or responsive pleading, Court will set Rule 16 and other necessary deadlines. (cc: all counsel) (RK, ilcd) (Entered: 07/12/2002)
47 AMENDED COMPLAINT by intervenor−plaintiff Lynn Zachman; jury demand [15−1], [1−1]; adding Gary M Dickhaus (SH, ilcd) (Entered: 07/31/2002)
48 NOTICE OF LAWSUIT ; Waiver(s) of Service due on 8/30/02 for Gary M Dickhaus (SH, ilcd) (Entered: 07/31/2002)
MINUTE−ENTRY: by Mag. Judge John A. Gorman finding the motion to stay discovery [44−1] moot. (cc: all counsel) (HK, ilcd) (Entered: 08/15/2002)
49 MOTION by defendant International Pro, defendant Gary M Dickhaus to dismiss plaintiff's amended complaint and supporting memorandum (SH, ilcd) (Entered: 08/19/2002)
50 ORDER by Chief Judge Joe B. McDade: IT IS THEREFORE ORDERED that Defendant International Profit Associates, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint [49−1] is GRANTED. Counts II and III of Plaintiff's Amended Complaint are dismissed. This case is referred back to Mag. Judge John A. Gorman for a Rule 16 hearing and further proceedings. (cc: all counsel) (CAD, ilcd) (Entered: 09/24/2002)
MINUTE−ENTRY: by Mag. Judge John A. Gorman. Case set for R16 hearing at 2:00 on Friday, 11/22/02 in person in Peoria. (cc: all counsel) (KB, ilcd) (Entered: 10/30/2002)

11/12/2002 11/21/2002 11/22/2002
12/10/2002 12/10/2002 12/10/2002 12/12/2002 12/20/2002 01/03/2003
05/19/2003

51 MOTION by intervenor−plaintiff Lynn Zachman to withdraw attorney Christopher P Ryan (SH, ilcd) (Entered: 11/13/2002)
52 PROPOSED Scheduling Order and DISCOVERY PLAN filed by Equal Employment Opp, Arnold &Sons Plumb (SH, ilcd) (Entered: 11/21/2002)
MINUTE−ENTRY: by Mag. Judge John A. Gorman. Attys Smason/Ryan Morris/Smith present via phone for R16 hearing at 2:00 on 11/22/02 − same held. Motion to withdraw by Atty Ryan is granted. EEOC will represent Lynn Zachman, intervenor−plaintiff. The court approves the proposed scheduling order and discovery plan: Disc ddl 5/30/03 , motion filing ddl 6/30/03 , final pretrial conference at 2:00 on 10/16/03 (meet with law clerk for jury instruction conference at 1:00), and jury trial at 9:00 on 11/18/03 both in person in Peoria before Chief Judge McDade. (cc: all counsel) (KB, ilcd) Modified on 01/14/2003 (Entered: 11/25/2002)
53 MOTION by defendant to compel (SH, ilcd) (Entered: 12/10/2002)
54 MOTION by defendant for leave to file under seal its memorandum in support of defendant's motion to compel (SH, ilcd) (Entered: 12/10/2002)
55 MEMORANDUM IN SUPPORT of motion to compel [53−1] by defendant (FILED UNDER SEAL) (SH, ilcd) Modified on 12/13/2002 Additional attachment(s) added on 4/18/2007 (CL, ilcd). (Entered: 12/10/2002)
MINUTE−ENTRY: by Mag. Judge John A. Gorman granting motion for leave to file under seal its memorandum in support of defendant's motion to compel [54−1] (cc: all counsel) (SH, ilcd) (Entered: 12/13/2002)
56 RESPONSE by plaintiff Equal Employment Opp Defendant's to motion to compel [53−1] (RK, ilcd) (Entered: 12/23/2002)
MINUTE−ENTRY: by Mag. Judge John A. Gorman. Defendant's motion to compel [53−1] is hereby denied, for the following reasons. Plaintiff has expressly limited the type of emotional distress damages to "garden variety" damages. She does not intend to offer any expert testimony about psychiatric harm, physician's advise, or resulting need for medical/psychiatric treatment. Her evidence will be limited to the negative emotions that she experienced. As such, her psychiatric records are not relevant and are not likely to lead to discoverable information. The fact that plaintiff may have had other stressors in her life is a fact that defendant may certainly explore, but that fact does not make psychiatric records discoverable. See, Santelli v. Electro−Motive, 188 F.R.D. 306, 308−09 (N.D.Ill. 1999); Drocka v. City of Chicago, 193 F.R.D. 542, 544 (N.D.Ill. 2000); Hucko v. City of Oak Forest, 195 F.R.D. 526, 529−31 (N.D.Ill. 1999). As such, the psychiatrist's summary of those records does not constitute a waiver of privilege. Hucko, 195 F.R.D. at 530. (cc: all counsel) (SH, ilcd) (Entered: 01/03/2003)
57 ORDER by Chief Judge Joe B. McDade: IT IS ORDERED that the action is dismissed without prejudice subject to dismissal with prejudice pursuant to the settlement terms. IT IS FURTHER ORDERED that the Final Pretrial Conference set for October 16, 2003 and the Jury Trial set for November 18, 2003, are CANCELLED. IT IS FURTHER ORDERED tht the Clerk forthwith serve copies of this order by United States mail upon the attorneys for the parties appearing in this action. Case dismissed. (cc: all counsel) (CAD, ilcd) (Entered: 05/20/2003)

06/24/2003 07/01/2003

Remark: Consent Decree received from parties on 6/24/03, forwarded to Judge McDade for approval. (CAD, ilcd) (Entered: 06/26/2003)
58 Consent Decree/ORDER by Chief Judge Joe B. McDade. See written Consent Decree attached. (cc: all counsel) (RK, ilcd) (Entered: 07/02/2003)


[CONTENT] Chicago | the Equal Employment Opportunity Commission | June 2001 | the U.S. District Court | the Northern District | Illinois ||| EEOC | Buffalo Grove | IL | Title VII of the Civil Rights Act ||| EEOC ||| Joan B. Gottschall ||| Two | two | EEOC ||| several dozen | five-year ||| October 23, 2007 | two | one ||| 2007 | WL 3120067 ||| EEOC ||| EEOC ||| EEOC ||| 2006 | 2009 ||| EEOC | Phase I. ||| July 14, 2008, July 7, 2009 | August 13, 2009 |||  ||| 2008 | WL 4876860 | 654 | F. Supp ||| 2d | 767 | 647 ||| 2d 951 ||| 2004 | approximately 121 ||| 2010 | IPA | 40 ||| 81 ||| October 9, 2009 | EEOC |||  ||| March 31, 2010 ||| 2010 | 1416153 ||| April 9, 2010 | March 31 | 2010 ||| April 16, 2010 ||| June 14, 2010 | November 25, 1997 to | February 14, 2005 ||| Phase II ||| June 16, 2010 | eighty-one ||| June 29, 2010 ||| July 6, 2010 |||  |||  ||| February 9, 2011 | July 6, 2010 ||| March 2, 2011 |||  |||  ||| eight million dollars ||| 431,667 ||| Nancy B. Kreiter | George F. Galland | IPA ||| three years ||| March 24, 2011 ||| February 23, 2012 and | March 4, 2013 | Human Resources ||| May 14, 2013 |||  ||| annual | annual | weekly | March 2014 ||| Gotschall | May 22, 2013 ||| March 3, 2014 | March 10, 2014 | IPA |||  [SUMMARY] This case was filed by the Chicago office of the Equal Employment Opportunity Commission in June 2001 in the U.S. District Court for the Northern District of Illinois. The EEOC alleged that the defendant, a telemarketer of small business consulting packages based in Buffalo Grove, IL, violated Title VII of the Civil Rights Act by carrying out a pattern or practice of discrimination by subjecting female employees to sexual harassment. EEOC also alleged the defendant made favorable employment actions contingent upon the performance of sexual favors. The case was before Judge Joan B. Gottschall.

Two of the employees allegedly harassed filed related suits (see related cases EE−IL−0307 and EE-IL-0308), and two other employees intervened in the EEOC's suit. The discovery stage of this litigation was protracted, with several dozen discovery motions being filed over the course of a five-year period. 

On October 23, 2007, the court divided the case into two phases to be tried before one jury. 2007 WL 3120067. In phase I, the EEOC had to establish by a preponderance of the evidence that the sexual harassment that occurred at the defendant business during the relevant time period, taken as a whole, was so severe or pervasive that a reasonable woman would find the work environment to be hostile or abusive. EEOC also had to establish that the defendant knew, or should have known, that systematic sexual harassment was occurring in its offices but did not take adequate steps to address the problem. In Phase II, the EEOC had to prove by a preponderance of the evidence that each individual claimant seeking monetary damages experienced sex-based harassment that an objectively reasonable woman would find severe or pervasive enough to constitute a hostile work environment and demonstrate that each claimant subjectively perceived the harassment she experienced to be hostile or abusive. 

The defendant sought summary judgment on the individual claims in this case in a series of motions spanning from 2006 to 2009. For the purpose of resolving the summary judgment motions, the court assumed that the EEOC had prevailed in their required showings at Phase I. The court entered orders on July 14, 2008, July 7, 2009, and August 13, 2009. Within these orders, the court granted and denied in part the defendant's summary judgment, finding the harassment was not sufficiently severe for all claimants and dismissing those claimants. 2008 WL 4876860; 654 F. Supp. 2d 767; 647 F. Supp. 2d 951. In 2004, before the filing of the summary judgment motions as to individual claimants began, there were approximately 121 claimants. By 2010, IPA obtained rulings dismissing 40 of those claimants based on summary judgment and statutes of limitations. 81 triable complaints proceeded.

On October 9, 2009, the defendants moved for summary judgment on the EEOC’s “pattern or practice” claim. The court considered only the defendant’s statistical arguments (the defendants claimed that the number of individual claimants was too statistically insignificant to present a triable claim for a “pattern or practice”), and did not consider the defendant's other arguments. The court found that the statistics alone did not entitle the defendant to judgment as a matter of law, and denied the motion on March 31, 2010. 2010 WL 1416153.

On April 9, 2010, the defendant requested that the court certify its March 31, 2010 order for interlocutory appeal. The court declined to do so on April 16, 2010. On June 14, 2010, the court found, upon the consent of the defendant, that an unlawful pattern or practice of tolerating sexual harassment existed at the business from November 25, 1997 to February 14, 2005. With the order entered on Phase I, the case proceeded toward trial on Phase II.

On June 16, 2010, the defendant moved to sever the individual claims for compensatory and punitive damages for the eighty-one remaining claimants, or, in the alternative, for separate trials. The court denied the motion on June 29, 2010.

Trial began in the case on July 6, 2010. After the start of jury selection, the parties reached a tentative settlement agreement, and the court stayed the trial. At that point, the parties began to work to finalize a consent decree. On February 9, 2011, the court entered an order granting the parties’ joint motion to enforce the settlement agreement reached in court on July 6, 2010.

The court entered the consent decree on March 2, 2011. The consent decree included injunctive provisions enjoining the defendant and its employees from retaliation and from discrimination against women on the basis of sex by sexually harassing female employees, harassing female employees on account of their sex, and/or creating, facilitating, or permitting the existence of a hostile work environment. The consent decree also required the defendant to implement and maintain compliance with a “statement of intolerance of sexual harassment,” establish a sexual harassment policy and complaint procedure, and provide training regarding sexual harassment. The defendant paid eight million dollars to a settlement fund to be distributed as compensatory damages to the eligible claimants, including the intervenors. The settlement fund also paid attorney’s fees and costs in the amount of $431,667 to attorneys for the plaintiff-intervenors. The consent decree appointed Nancy B. Kreiter and George F. Galland as Decree Monitors to oversee IPA’s implementation of the decree’s terms. The court retained jurisdiction over the consent decree for three years.

After the entry of the consent decree, the parties' outstanding motions were denied as moot on March 24, 2011. The Monitors’ reports of February 23, 2012 and March 4, 2013 both found the defendant in compliance with the consent decree and made certain recommendations, mostly concerning profanity, enforcement of the dress code, and restructuring of Human Resources. 

On May 14, 2013, the plaintiffs moved to amend the consent decree. The motion, to which the defendants agreed, proposed an amendment to the payment schedule in the consent decree. Under the consent decree, the defendants were responsible for annual payments to a settlement account, but had not made its annual payments on time, and claimed financial hardship, so the parties agreed to allow weekly payments to ensure that final payment was fully and timely made in March 2014. Judge Gotschall granted the motion on May 22, 2013.

The defendants submitted their final payment into the settlement fund on March 3, 2014, and the Monitors submitted their final report on March 10, 2014, finding that the IPA complied fully with the decree. The case is now closed.