Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Richard L. Green, #003259 Paul D. Friedman, #012716 O'STEEN & HARRISON, PLC 300 W. Clarendon Avenue, Suite 400 Phoenix, Arizona 85013-3424 (602) 252-8888 Attorneys for Plaintiff-Intervenor IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff and, Kelley J. Miles, Plaintiff-Intervenor, PLAINTIFF-INTERVENOR MILES' SUPPLEMENTAL RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR ATTORNEY FEES NO. CV 03 1210 PHX PGR

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v. The Boeing Company, a Delaware corporation, and Boeing Aerospace Operation, Inc., a Delaware corporation, Defendants.

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I. INTRODUCTION On October 12, 2005, Defendants moved this Court for an award of (a) attorneys' fees and (b) related non-taxable expenses, regarding the retaliation claim. On December 5, 2005, Boeing filed its Memorandum of Points and Authorities in Support of Defendants' Motion for Award of Attorneys' Fees. In this Memorandum, Boeing, seeks pre-judgment fees in the amount of $74,157.75 and non-taxable costs in the amount of $4,379.52; and post-judgment fees in the amount of $8,667.50 and non-taxable costs of $1.56. The total amount sought by Defendants is $87,206.33.
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II. ARGUMENT Plaintiff-Intervenor Miles incorporates the legal and factual arguments made by Plaintiff EEOC in its Responses to Defendants' Motion for Award of Attorneys' Fees. The general legal standard for awarding a defendant attorneys' fees in a Title VII case is set forth in those memoranda and incorporated by reference herein. The retaliation claim was not frivolous, unreasonable or without foundation nor did it become so at any time during the litigation. 1. Boeing's Motion for Award of Attorneys' Fees Did Not Comply with the Federal Rules of Civil Procedure and Local Rules. Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure provides in pertinent part with respect to a motion for attorneys' fees: (B) Unless otherwise provided by statute or order of the court, the motion must be filed no later than 14 days after entry of judgment; must specify the judgment and the statute, rule or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought.... (emphasis added) Rule 54.2(b)(1) of this Court's Local Rules also mandates that the amount of attorneys' fees and related non-taxable expenses sought or a fair estimate of such amount be specified in the motion.

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Defendant Boeing in its October 12, 2005 motion failed to state the amount of attorneys' fees it was seeking or provide a fair estimate of the amount sought nor did it provide any information at all concerning related non-taxable expenses it was seeking. Boeing merely stated its fees were approximately $157,000.00 but did not estimate the amount of the fees attributable to the retaliation claim. Boeing, for the first time, in its December 5, 2005 Memorandum disclosed

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it was seeking 50% of the total attorneys fees and paraprofessional fees of
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$148,315.50 and 50% of its non-taxable costs of $8,959.04 plus post judgment amounts for attorneys fees and non-taxable costs. This information, required to be revealed no later than 14 days after entry of judgment, was not revealed until 62 days after the final judgment Thus, it was not timely filed with respect to

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Plaintiff-Intervenor Miles. 2. Boeing's Failure to Delineate Claims and to Maintain Adequate Billing Records Precludes an Award of Attorneys' Fees and Related Nontaxable Expenses. The Ninth Circuit has upheld a district court's denial of attorneys' fees, in part because the claims were so interrelated they could not be separated. Crowe v. Wiltel Communications Systems, 103 F. 3d 897, 900 (9th Cir. 1996). The applicant for attorneys' fees bears the burden of establishing entitlement to

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an award and "...should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)(Plaintiffs seeking award pursuant to Civil Rights Attorneys' Fees Awards Act). Boeing has submitted 49 pages of billing time records (pre attorneys fees time), almost all of which fail to reflect whether the time spent dealt with sexual

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harassment, harassment because of sex, or retaliation. Because of this, the Court should find Boeing has not met its burden of establishing the time spent on the issue of retaliation. 3. There Was a Factual and Legal Basis for Concluding the Existence of a Prima Facie Case of Retaliation.

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Although this Court determined the Plaintiff had not met its burden of showing Ms. Miles had suffered any adverse employment action or that any alleged actions were motivated by Ms. Miles' participation in protected activities, this does not mean that the action was frivolous. In the instant case, there were

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facts leading Plaintiff and Plaintiff-Intervenor to reasonably believe that there were both adverse employment actions and a causal connection between the protected activity engaged in by Ms. Miles and those adverse actions, the two elements of the prima facie case at issue. A. Adverse Employment Action

An adverse employment action is an employment action "reasonably likely
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to deter employees from engaging in protective activity." Ray v. Henderson,
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217 F.3d 1234,1243 (9th Cir. 2000); Pardi v. Kaiser Foundation Hospitals, 389 F.3d 840, 850 (9th Cir. 2004)(ADA case). In Ray the Court of Appeals for the Ninth Circuit agreed with the expansive position of the First Circuit that there is an adverse employment action when "...the employer...engaged in conduct having an adverse impact on the Plaintiff." Ray, 217 F.3d at 1243. It is now clear in the Ninth Circuit that a hostile work environment may be

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the basis for a retaliation claim under Title VII. Ray at 1244, 1245. In the instant case, EEOC and Ms. Miles had a reasonable basis for pursuing this action given the evidence of co-worker harassment as well as harassment and other retaliation by supervisors and managers.

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It was reasonable to conclude that numerous verbal and physical acts of harassment by Manny Cervantes, the repeated derogatory and humiliating statements by John Byrd, Todd Blough, Ted Manchango, Fred Jones, Vic Bonomo, Manny, Scott, Calvin, Fred Cruz and supervisors Jeff Luidhardt and

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Kevin Nunimaker; the specific incidents referenced by the Court in its Summary Judgment decision; and the other conduct of Boeing's Human Resources and Equal Employment Opportunity offices (hereinafter "HR and EEO") constitute adverse employment actions. Repeated derogatory or humiliating statements, can constitute a hostile work environment. Ray, 217 F.3d at 1245. Many of these repeated derogatory and humiliating comments and acts directed at Ms. Miles

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are set forth in Exhibit A, attached, which was obtained from the Statement of
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Facts in Plaintiffs' Joint Response to Defendants' Motion for Summary Judgment (hereinafter "PSOF"). Co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute an adverse employment action for purposes of a retaliation claim. Gunnell v. Utah Valley State College, 152 F.3d, 1253, 1264 (10th Cir. 1998). Similarly, employer actions such as "toleration of harassment by other

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employees" is an adverse action covered by the retaliation provisions of Title VII. Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994). The Ninth Circuit has cited with approval both the Gunnell and Wyatt cases for these propositions. Ray, 217 F.3d at 1241, 1245.

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B.

Specific Incidents

The Court disregarded the incident concerning Ms. Miles being told of rumors that Nunimaker or someone else told co-workers that Ms. Miles filed a complaint and had them on a list. Although the Court found there was no

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admissible evidence that Nunimaker made the statements, there is admissible evidence that Ms. Miles heard the following hearsay information: (1) Ted Manchango told Kelley Miles that Frank Francisco told him Kevin Nunimaker had called a group meeting and had told the group to be careful what they say around Kelley Miles and that she had all of them down on a list as perpetrators (PSOF ¶ 227). (2) When Ms. Miles talked to Frank Francisco about the meeting, Mr. Francisco said that it wasn't Kevin Nunimaker who made the statement, but somebody else, and Mr. Francisco confirmed to Ms. Miles that someone said Ms. Miles had them down on a list as perpetrators (PSOF ¶ 228). Kelley Miles also complained to Richards Mead about the rumor circulating that she had other employees, except for one, "on a list" and that they had to be

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careful what they say around her (PSOF ¶ 230). Neither Mr. Mead nor Boeing ever investigated these rumors. False workplace rumors, however, such as these, can have a devastating effect on an employee's relationship with coworkers. Although the federal courts appear to be split on the use of secondhand evidence in hostile environment cases, it is not frivolous or unreasonable to rely upon secondhand evidence. See Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999). Nor is it frivolous or unreasonable to believe that, in the context of the Boeing work environment, the spreading of these false rumors was one more incident of adverse and retaliatory conduct.

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Richard Clark told Kelley Miles he would not help her because she had chosen to make EEOC her advocate (PSOF ¶ 277). This is supported by Ms. Miles contemporaneously telling Luidhardt that Clark told her she could not go to Boeing's EEO because she had taken her issue to EEOC (PSOF ¶ 812, Luidhardt testimony). It was only after this complaint to Jeff Luidhardt that Mr. Clark attempted to get Ms. Miles to sign a paper stating that he had told her he could no longer talk to her about her EEOC charge, but would discuss any other issues (PSOF ¶ 279). This was not what Mr. Clark had told her and was not true so Ms. Miles refused to sign the paper (PSOF ¶ 280). Although the Court found Mr. Clark's conduct did not constitute an adverse employment action, the two cases relied upon are factually distinct from the instant case and there is no controlling Ninth Circuit law. As set forth in Plaintiffs' Joint Response to Defendants' Motion for Summary Judgment (hereinafter "Joint S/J Response") neither case cited involved a complete refusal to investigate. The Sixth Circuit case only involved a transfer of responsibility to investigate and the District Court case involved a temporary abeyance of an application pending EEOC conciliation. See Joint S/J Response at p. 13, f.n. 6. It was not frivolous for Plaintiffs to assert this issue when the Ninth Circuit has yet to rule on it. Ms. Miles was subjected to numerous derogatory and demeaning comments by co-workers and supervisors, Jeff Luidhardt and Kevin Nunimaker. See Exhibit A. In Costa v. Desert Palace, Inc., 299 F.3d 838, 861-62 (9th Cir. 2002), the Court found that a comment, made on several occasions, referring to plaintiff as a "bitch" was sufficient for a jury to conclude that it was evidence of a derogatory term indicating sex-based hostility. In the instant case whether or not it was gender or sex based, the term "bitch" was clearly derogatory and demeaning to Ms. Miles. This is particularly so given the number of times "bitch"
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and other similar comments were made about Ms. Miles (see Exhibit A) and the number of complaints made by Ms. Miles throughout her employment (see Exhibit B). It was not frivolous or unreasonable to consider the context in which these comments were made and to conclude they were retaliatory. Ms. Miles also was shunned for complaining of harassment. The Court found that "mere ostracism" is not actionable under Title VII, and that, even if it were, Plaintiffs failed to establish Ms. Miles was shunned because of her protected activity. The Ninth Circuit in interpreting California law, stated, "For

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example, mere ostracism in the workplace is not enough to show an adverse employment decision." Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996). The basis for making this comment was a previous California appellate decision that stated, "Ostracism, of course, does not amount to a hostile environment and no cause of action can be pled on that basis alone" (emphasis added). Fisher v. San Pedro Peninsula Hosp., 214 Cal

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App. 3d 590, 615 (1989). Subsequent Ninth Circuit cases such as Ray, 27 F.3d
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at 1241 and Manatt v. Bank of America, 339 F.3d 792, 803 (9th Cir. 2003), use the term "mere ostracism" but do not shed light on its meaning. Ostracism alone might not be sufficient; however, there is an issue whether ostracism is actionable in the context of extensive derogatory and demeaning conduct directed at Ms. Miles. It was not unreasonable to look at the context in which the shunning took place and to take the position that it was retaliatory and adversely

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affected Ms. Miles' employment.

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With respect to Ms. Miles' allegation that she was falsely accused of damaging an aircraft, the Court found it was Dihn Luu, Ms. Miles' partner, who was the one accused. However, there is testimony that both Ms. Miles and her partner were falsely accused of damaging the floor of the aircraft by supervisor Kevin Nunimaker and co-workers Fred Jones and Ted Manchango (PSOF ¶¶ 245, 250-251). Ms. Miles filed an internal charge of continuing harassment and retaliation against Nunimaker, Fred Jones and Ted Manchango. Miguel L. Gonzales, Boeing's EEO focal, advised Ms. Miles that Ted Manchango accused Kelley Miles and Dihn Luu of dropping the bucking bar that did the damage (PSOF ¶ 255). Kevin Nunimaker also told Jeff Luidhardt the first shift was blaming Kelley Miles' hole fill team for the damage (PSOF ¶ 813). EEOC and Plaintiff-Intervenor also had a reasonable basis for believing Kevin Nunimaker's plan to investigate and to bring security in to make an example out of people who lie and hide their damage was also retaliatory (See PSOF ¶ 247)(Supervisor Luidhardt testimony). With respect to the incidents at a the high performance meeting and within a 24 hour period of that meeting, the Court found these were isolated; that Luidhardt, during a six-month period, was repeatedly ill-tempered with all of his team members; and that Plaintiffs failed to show the necessary causal

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connection. There is, however, a difference between Luidhardt's conduct directed at Kelley Miles three times within 24 hours and his general boorish conduct with others over a period of time (See PSOF ¶ 126). On May 2, 2003, Luidhardt came over the table yelling and screaming at Ms. Miles during a high performance meeting and demanding she answer him (PSOF ¶¶¶ 303, 304,
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449). Additionally, there were two other incidents during this 24-hour period; one where Jeff Luidhardt was again threatening to her on May 2, 2003 when he gave her a corrective action notice after the high performance meeting, and an incident on May 1, 2003 where Jeff Luidhardt directed foul language at her (PSOF ¶¶

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305, 306). It was reasonable to view these incidents, not as discrete incidents, but as a continuation of the cumulative retaliatory harassment, as set forth above. There was also a factual and legal basis for EEOC and Ms. Miles believing the conduct of Jeff Luidhardt and Boeing was retaliatory with respect to the corrective action notice issue. The basis is set forth in Plaintiffs' Joint S/J

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Response, pp. 17-18, 26-27 and in Plaintiff EEOC's October 31, 2005 Response
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to Defendants Motion for Award of Attorneys' Fees, pp. 9-10. Exhibit C attached is a summary of the facts relied upon in reaching this conclusion, with particular emphasis on PSOF ¶¶ 256, 257, 265, 266, 270-272, 310, 383, 451-455, 457459, 528-530, 534, 544, 547,549, 551, 552, 628, 636, 637, 656, 657, 665, and 670. The corrective action notices given to Ms. Miles, much like the corrective action notice given to Manny Cervantes for sexual harassment prior to June

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2001, was the second step in Boeing's progressive discipline policy (PSOF ¶ 544). Whether deserved or not, there was evidence that the safety glasses rule, prior to her grievance, was applied only to Ms.Miles; the context of the issuance of the two corrective actions in 2003 and 2004 led Plaintiffs to believe they were retaliatory. The fact that one of the corrective action notices was thrown in Ms.
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Miles' face by Jeff Luidhardt gives further credence to a retaliatory motive (PSOF ¶¶ 451, 459). Regarding the Court's conclusion that it lacked jurisdiction regarding the corrective action notices, the question of what is like and related is a difficult one. This Court adopted a narrow approach holding the EEOC

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charges, investigations and determinations had to involve the subject of wearing eye protection or corrective action notices for Ms. Miles' allegations to be like and related. A number of courts, however, have taken a much broader view. It was not frivolous or unreasonable for Plaintiffs to litigate those issues. C. Causal Connection

Observations by supervisors, complaints to supervisors and managers,
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and Defendants' failure to remedy the problem, gave the EEOC and Ms. Miles a
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reasonable basis for pursuing this litigation. Ms. Miles made complaints of
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harassment and retaliation to supervisors and managers throughout her
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employment both prior and subsequent to June 2001 (PSOF ¶¶ 40, 63-65, 68,
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73-74, 92, 100, 103,107, 111-112, 124-125, 128, 129; 131,-133, 138, 143, 147,
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154, 155-157, 159, 232-236, 244, 246, 252-254, 309, 312-313, 318, 334, 349,
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552-553, 632, 743, 891). Many of these are described in detail in Exhibit B
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attached.
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It was reasonable to believe that some of the adverse actions established
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the causal link by temporal proximity. See Pardi v. Kaiser Foundation
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Hospitals, 389 F.3d 840, 850 (9th Cir. 2004); Ray, 217 F.3d at 1244; it was also reasonable to believe that the causal link could be established by a "pattern of antagonism following the protected conduct." See Porter v. California Dept. of Corrections, 419 F.3d 885, 895 (9th Cir. 2005 (internal quotation omitted).
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Circumstantial evidence of this "pattern of antagonism following the protected conduct" is sufficient to give rise to the inference of causation. Porter at 895. Specifically, this pattern of antagonism is the hostile work environment discussed in Section II (3) A & B above, and in the Joint S/J Response. In the

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instant case there is circumstantial evidence of a causal connection, which EEOC and Ms. Miles reasonably relied upon as well as complaints of retaliation that were not remedied by Boeing. See Exhibit B. In determining whether a hostile environment exists, a Court must consider all the circumstances and no single factor is required. Harris v. Forklift Sys., Inc. 510 U.S. 17, 24 (1993); Draper, 147 F.3d at 1109 (an innocuous occurrence

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in the context of a pattern of discriminatory harassment may take on an
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altogether different character). Although the Court and the Defendants focused upon a number of the individual incidents, it was not frivolous for EEOC and Ms. Miles to believe the cumulative weight of these specific incidents and the other harassment and conduct of Boeing in investigating these incidents met the prima facie case requirement. There is additional evidence of the hostile work environment amounting to

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a pattern of antagonism. In response to her complaints to him, supervisor Kevin Nunimaker would tell Ms. Miles she was a "fucking crybaby" or a "troublemaker" or a "whiner." It was reasonable to consider this to be evidence of a hostile work environment. See Ray, 217 F.3d at 1245 (supervisors, inter alia, called Ray a

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"liar" and a "troublemaker"); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998)(supervisor inter alia, laughed at Draper's complaints to him). It was also reasonable to consider, not only complaints to HR or the EEO office as a protected activity, but also informal complaints to supervisors, such as

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Jeff Luidhardt and Kevin Nunimaker. See Ray, 217 F.3d 1234 at 1240, f.n.3. Indeed Boeing's own policy gave Ms. Miles the option of reporting harassment to a number of people including line management (PSOF ¶¶ 355, 357, 359). It was then the line manager's responsibility to bring the complaint to the attention of Human Resources or EEO (PSOF ¶¶ 771, 774-776, 794). As pointed out by EEOC in its October 31, 2005 Response, Ms. Miles reported harassment to

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supervisor Nunimaker for years; to supervisor Luidhardt on many occasions; to
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Boeing's HR and EEO offices on numerous occasions; and to EEOC in June and August 2001. Not only did Kevin Nunimaker and Jeff Luidhardt fail to investigate and take appropriate action when Ms. Miles complained, but there is evidence Boeing's HR and EEO also neglected its obligations under Title VII. Boeing failed to do any investigation of some of Ms. Miles' complaints of continuing

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harassment; conducted only cursory investigations, and failed to follow its own procedures. (These include PSOF ¶¶ 42, 48, 92, 103, 104, 128, 129, 139, 142, 147, 149, 153, 156, 159, 164, 297, 298, 309, 314, 399, 404, 405, 456, 552, 554, 658, 737, 745, 749, 750, 751, 755, 799, 854, 855, 856, 891, 896, 898).

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4.

"Good Faith Settlement Offer" and Dismissal on Summary Judgment The Eleventh Circuit has stated that three of the important factors in

determining whether a claim is frivolous are: 1) whether Plaintiff established a prima facie case; 2) whether the Defendant offered to settle; and 3) whether the

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trial court dismissed the case prior to trial. Sullivan v. School Bd. Of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985). This is not a three-prong test as argued by Defendant nor the only factors to be considered, as implied by Defendants. See Sullivan at 1189. The Eleventh Circuit has made it clear that these are "...general guidelines only, not hard and fast rules. Determinations regarding frivolity are to be made on a case-by-case basis." id, Quintana v.

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Jenne, 414 F.3d 1306, 1309 (11th Cir. 1997).
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Moreover, as reflected by cases previously cited by EEOC and Boeing, this is not a "test" utilized by the Ninth Circuit. In the Ninth Circuit, if there are numerous difficult issues that are not without foundation, a trial court may deny a defendant attorneys' fees, even though the court granted summary judgment. Forsberg v. Pacific Northwest Bell Telephone Co., 840 F. 2d 1409, 1422 (9th Cir. 1988). Contrary to Boeing's memoranda (p. 4, 5 LL 23-1), neither the

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Supreme Court nor the Ninth Circuit made any analysis of the three Sullivan factors in deciding whether a claim was frivolous. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421; EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982).

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With respect to Defendants' discussion of settlement negotiations, it is not admissible because it violates the confidentiality provisions of the parties Agreement to Mediate, Rule 408 of the Federal Rules of Evidence, A.R.S. §122238B, and consists of unsworn testimony by defense counsel. Plaintiff-

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Intervenor will be joining in EEOC's Motion to Strike. If the Court allows defendants to introduce mediation information into evidence, Plaintiff-Intervenor will submit an affidavit that will show that, in at least five significant instances, defendants' statements with respect to those settlement discussions are either incomplete or inaccurate. In any event, a settlement factor does not support either party in the absence of evidence of an offer of a substantial amount in

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settlement, Quintana, 414 F.3d at 1310. Defendants did not make such an offer.
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5.

Other Factors Militating Against an Award of Attorneys' Fees and the Amount Sought. Ms. Miles did not originate this lawsuit, but rather exercised her statutory

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right to intervene after the lawsuit was filed. This decision to intervene was based, in large part, upon the EEOC's reasonable cause determinations and the independent litigation decision by the Commission's Office of General Counsel. The Ninth Circuit has held an award of attorneys' fees to a prevailing defendant in a Title VII case was an abuse of discretion in a case where EEOC found reasonable cause to believe the allegation of discrimination was true. Mitchell v. Office of L.A. County Superintendent of Schools, 805 F.2d 844, 847, 848 (9th Cir. 1984)(citing Gifford v. Anthison, Topeka & Santa Fe Ry. Co., 685 F.2d 1149, 1156 (9th Cir. 1982).

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Ms. Miles cannot afford to pay the attorneys' fees sought by Defendants in this case or any significant portion of that amount (see Exhibit D attached, Affidavit of Kelley J. Miles). A plaintiff's inability to pay attorneys fees should be considered by the Court. Miller v. Los Angeles County Board of Education,

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827 F.2d 617, 621 (9th Cir. 1987). The ability of a defendant to pay it own fees is also a consideration to be considered by the Court. Silver v. KCA, Inc., 586 F.2d 138, 143 (9th Cir. 1978). These factors clearly militate against requiring Plaintiff-Intervenor Miles to pay attorneys' fees. Ms. Miles does not question the reasonableness of various hourly rates for the two principal defense attorneys but believes the $480.00 per hour and

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$375.00 per hour for a conference with two other defense attorneys on January
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31, 2005 are excessive and duplicative. Ms. Miles also objects to a rate of $105.00 and $115.00 per hour for paraprofessional time and $65.00 per hour for apparent clerical work. Plaintiff-Intervenor also requests this Court exercise its discretion in denying or discounting all requested fees where more than one task was billed without differentiating between the tasks. See Cadena v. Pacesetter Corp., 224

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F.3d 1203, 1214, 1215 (10th Cir. 2000). Additionally, in light of the considerations set forth above and the size of the award sought, the Court should exercise its discretion in denying or reducing fees for seeking fees.

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III. CONCLUSION EEOC and Ms. Miles' retaliation claim was not "frivolous, unreasonable, or without foundation," when it was filed or at any time during the litigation. Because of this and for the other reasons set forth herein, Defendants' Motion for

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Attorneys' Fees should be denied. DATED this 6th day of January, 2006. O'STEEN & HARRISON, PLC s/Richard L. Green Richard L. Green Paul D. Friedman Attorneys for Plaintiff-Intervenor

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CERTIFICATE OF SERVICE I certify that on this 6th day of January, 2006, I electronically transmitted the foregoing document and attached Exhibits A-D to the United States District Court's Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary Jo O'Neill C. Emanuel Smith Katherine J. Kruse EEOC Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Attorneys for Plaintiff EEOC Tibor Nagy, Jr. Erica Rocush Snell and Wilmer One South Church Avenue, Suite 1500 Tucson, Arizona 85701 Attorneys for Defendants s/ Beverly Hart

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