Free Post Trial Brief - District Court of Federal Claims - federal

Case 1:05-cv-00186-FMA

Document 85-3

Filed 08/01/2008

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DEFENDANT'S EXHIBIT 2

Case 1:05-cv-00186-FMA

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LEXSEE 2007 MEALEY'S JURY VERDICTS & SETTLEMENTS 2841
Copyright 2007 LexisNexis, Division of

Reed Elsevier Inc.

LexisNexis Jury Verdicts and Settlements Report
2007 Mealey's Jury Verdicts & Settlements 2841

HEADLINE: United States Settles Claims With Potential Marine Recruits For $200,000
Case Name: Jane Doe, et al. v. United States of America, et al.

Case Number: 06-l777-MHP
Court: N.D. Calif., San Francisco Div.
Judge: Marilyn H. Patel
Verdict/Settement (breakdown): $200,000 settlement

PIaintiff(s): Jane Doe, Mary Roe
Defendant(s): United States of America; General Michael W. Hagee, commandant of C. Winter, secretary of

the U.S. Marine Corps; Donald

the Navy; the U.S. Navy

Date: May 30, 2007
Claim: Violation of the Fifth Amendment of

the Constitution

Defense: Liability denied.
Background: Jane Doe and Mary Roe were high school students interested in becoming part of the U.S. Marine Corps. They were potential recruits into the Marine Corps and were participating in Marine Corps recruitment activities.In late fall 2004, Doe met with Staff Sgt. Joseph Dunzweiler in the U.S. Marine Corps recruiting office in Ukiah, Calif. Doe alleged that after their first meeting, Dunzweiler began to pursue a sexual relationship with her, and in January 2005, coerced and pressured Doe to have sex with him in the back room of the recruiting offce, ultimately raping Doe.Doe,

who had never had sexual intercourse before the January 2005 encounter, claimed that this happened again in February

2005, and shortly thereafter it was discovered that she had contracted Chlamydia.Doe alleged that on Feb. 18, 2005, she, another friend and Mary Roe, went to the recruiting offce for a recruiting function that was to take place the following day. Doe claimed that Dunzweiler said she could not become a Marine if she did not participate in the office "sleepover."Doe claimed that, again, Dunzweiler insisted that she sleep with him. Roe claimed that she was highly intoxicated upon her arrival to the recruiting office, and was vomiting on herself. Sources told Mealey Publications that Sgt. Brian Fukushima got into Roe's sleeping bag, undressed himself and raped her. Doe and Roe alleged that Dunzweiler and Fukushima abused their power and that the United States failed to properly train and supervise the recruitment officers. Doe and Roe each filed a governent tort claim alleging the same facts on Dec. 9, 2005, which
were denied June 8, 2006.Doe and Roe sued the United States of America; Gen. Michael W. Hagee, commandant of U.S. Marine Corps; Donald C. Winter, secretary of District Court for the Northern District of times, fiing their third amended complaint for

the

the Navy; the U.S. Navy; Fukushima and Dunzweiler in the U.S. California on March 8, 2006.Doe and Roe amended their complaint several injunctive relief and damages on Feb. 7,2007.

Case 1:05-cv-00186-FMA

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LexisNexis Jury Verdicts and Settlements Report (2007)

Other: The parties reached a settlement on May 30, 2007, and agreed to pay the plaintiffs $200,000. The defendants further agreed to provide the plaintiffs with access to a female recruiter, if they desire one.Additionally, all San Francisco recruiting locations wil post a notice that states if any person feels that he or she has been the victim of sexual harassment or unwanted sexual advances, they should contact the local uniformed Victim's Advocate, whose contact information wil be listed. The notice will also provide contact information of a female recruiter for female recruits or potential recruits. Sources said that these settlement terms pertain to not just recruiting stations, but all locations to which recruiters travel.Sources added that though they were named as defendants in the complaints, Fukushima and Dunzweiler were not involved in the settlement.

Plaintif Attorneys: Barry Vogel, Attorney at Law and Counselor, Ukiah, Calif.; Michael Steven Sorgen, Law Offces of Michael Sorgen, Emily E. Arnold-Fernandez, San Francisco
Defense Attorneys: Owen Peter Martikan, U.S. Attorney, Northern District of

California, San Francisco

Key Related Documents: Stipulation for compromise settlement available. Document #99-070703-032R. Dismissal available. Document #99-070703-033R. Order granting in part and denying in part motion for summary judgment available. Document #99-070703-036R. Third amended complaint available. Document #99-070703-035C. Answer available. Document #99-070703-034W.
Contact Mealey's at l-800-MEALEYS and see today's headlines at www.lexis.com/legalnews. To see if there is a Mealey's conference on this topic or an online CLE session, please visit: http://www.mealeys.com/conferences.html.

LOAD-DATE: 7/27/2007

Case 3:06-cv-01777-MHP Document 54 Filed 08/01/2008 Page of Case 1:05-cv-00186-FMA Document 85-3 Filed 06/06/2007 Page 14 of553

1 SCOTT N. SCHOOLS (SCBN 9990)

United States Attorney 2 JOAN M. SWANSON (SBN 88143) Chief, Civil Division

3 OWEN P. MATIKA (SBN 177104)
Assistant United States Attorney
450 Golden Gate Avenue,9th Floor

4

5 San Francisco, California 94102-3495
Telephone: (415) 436-7241

6 Facsimile: (415) 436-6748
Email: owen.martikan~usdoj .gov
7

Attorneys for Federal Defendants
8

UNITED STATES DISTRICT COURT
9

12 ). ) 13 ) 14 v
11
15 Commandant of 16 WITER, Secretary of

10

NORTHERN DISTRICT OF CALIFORNA
SAN FRANCISCO DIVISION

JANE DOE and MARY ROE, )

No. C 06-01777 MHP

Plaintiffs, )

E-FILING CASE

)
)
)

GENERA MICHAL W. HAGEE, )
the U.S. Marine Corps, )

STIPULATION FOR COMPROMISE SETTLEMENT AN RELEASE OF CLAIMS AN (PROPOSED) ORDER

THE U.S. MAR CORPS, DONALD C. )

18 Defendants. )
19 22
23 Commandant of

the Navy, THE U.S. ) NAVY, BRI FUKUSHIMA, JOSEPH ) 17 DUNZWEILER, and DOES 1-10, )

20 IT IS HEREBY STIPULATED by and between the undersigned parties and their
21 attorneys, that this action be settled and compromised, as follows:
1.

Federal Defendants the United States of America, General Michael W. Hagee,

the U.S. Marine Corps, the U.S. Marine Corps, Donald C. Winter, Secretary of

24 the Navy, and the U.S. Navy (collectively the "Settling Defendants") shall pay to Plaintiffs Jane

25 Doe and Mary Roe and their attorneys, Barr Vogel and Michael Sorgen, the collective sum of

26 $200,000.00 (two hundred thousand dollars and no cents). Payment shall be made by check
27 made payable to Michael Sorgen, Esq., in trst for plaintiffs Jane Doe and Mary Roe.

28

Case 3:06-cv-01777 -MHP Document 54 Case 1:05-cv-00186-FMA Document 85-3

Filed 06/06/2007 Page 2 5 of 53 Filed 08/01/2008 Page of 5

1

2.

The Settling Defendants shall also do the following:
a.

2

Provide plaintiffs Jane Doe and Mary Roe with access to a female

3 recruiter, if they desire one.
4

b.

With respect to Recruiting Station San Francisco, all recruiting locations

5 shall post a notice in at least the following fonts: tyeface 72 for headline notice provisions and

6 typeface 32 for text. The notice wil contain the following pròvisions:

7

1.

If any person feels that she or he has been the victim of sexual

8 harassment or unwanted sexual advances, she or he should contact the local uniformed Victim's

9 Advocate, whose contact information shall be listed, and that all information provided to the

10 unformed Victim's Advocate shall be kept in the strctest confidence.
11
2.

If any female potential recruit or recruit desires to speak with a

12 female recruiter, she may do so and the contact information for a female recruiter shall be
13 provided upon request.

14

c.

Any overnights within the jurisdiction of

Recruiting Station San Francisco

15 shall comply with Distrct Bulletin No. 1130.1, part 3(b)(1) (a), (b), and (c) (attached hereto as
16 Exhibit A and incorporated herein by reference), and shall be approved, at a minimum, by the
17 Commanding Offcer of Recruiting Station San Francisco.

18

d.

With respect to controlled substances, all recruiters shall comply with tlIe

19 Uniform Code of Military Justice.

20

3.

The Settling Defendants' performance of paragraphs 1 and 2 above is in full and

21 final settlement and satisfaction of any and all claims and demands which Plaintiffs JANE DOE

22 and MARY ROE have or may hereafter acquire against the Settling Defendants herein, or any of
23 their departents, agents, servants, employees or attorneys, arising from the events described in

24 Plaintiffs' pleadings in this action.

25

26
27

28

C 06-01777 MHP (ICS) 2

STIPULATED SETTLEMENT & RELEASE & (PROPOSED) ORDER

Case 3:06-cv-01777-MHP Document 54 Case 1:05-cv-00186-FMA Document 85-3

Filed 08/01/2008 Page 3 6 of553 Filed 06/06/2007 Page of

1

4.

Plaintiffs' complaint against the Settling Defendants in this action shall be

2 dismissed with prejudice. In consideration of the terms enumerated herein and above in

3 paragraphs 1 and 2, Plaintiffs JANE DOE and MARY ROE agree that, within five days from

4 notification by the US Attorney's Offce that the settlement amount is available, Plaintiffs'
5 counsel wil execute and forward to Assistant United States Attorney Owen P. Marikan for

6 execution and fiing with the court a stipulation for dismissal with prejudice in a form mutually

7 agreeable to the parties. AUSA Martikan wil execute and fie the stipulation of dismissal within
8 five days of his receipt thereof. On the date that the dismissal is filed, the settlement amount

9 shall be delivered to Plaintiffs counsel.

10

5.

Within 24 hours of

the Court's entr of

the proposed order accompanying this

11 stipulation, AUSA Martikan shall forward to the Departent of Justice Judgment Fund a
12 Judgment Fund Transmittal requesting payment of the settlement amount set forth in paragraph

13 1, above.
14
6.

Plaintiffs JANE DOE and MARY ROE wil accept the payments described herein

15 in full settlement and satisfaction of any and all claims and demands which they, their successors

16 or assigns may now have or hereafter acquire against the Settling Defendants or any of their
1 7 departents, agents, servants, employees or attorneys, on account of the events described in

18 Plaintiffs' pleadings in this action.

19

7.

Plaintiffs JAN DOE and MARY ROE agree to indemnify the Settling

20 Defendants for any and all liens, known or unown, lodged against the settlement agreement in

21 this action.

22

8.

Plaintiffs JANE DOE and MARY ROE do hereby release and forever discharge

23 the Settling Defendants and any and all of

their past and present offcials, employees, agents,

24 attorneys, their successors and assigns, from any and all obligations, damages, liabilities, actions,

25 causes of actions, claims and demands or any kind and natue whatsoever, whether suspected or
26 unsuspected, at law or in equity, known or unkown, arising out ofthe allegations set forth in

27 Plaintiffs' pleadings in this action.

28

C 06-01777 MHP (ICS) 3

STIPULA TED SETTLEMENT & RELEASE & (PROPOSED) ORDER

Case 3:06-cv-01777-MHP Document 54 Case 1:05-cv-00186-FMA Document 85-3

Filed 06/06/2007 Page 4 7 of 53 Filed 08/01/2008 Page of 5

1

9.

California Civil Code Section 1542 provides as follows:

2 3
4

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
the statutory language of Civil

5 Plaintiffs JANE DOE and MARY ROE have been apprised of

6 Code Section 1542 by their attorneys, and fully understanding the same, nevertheless elect to
7 waive the benefits of any and all rights they may have pursuant to the provision of that statute
8 and any similar provision of

federal law. Plaintiffs JANE DOE and MARY ROE understand

9 that, if the facts concernng their injures and the liability of the Settling Defendants for damages

10 pertaining thereto are found hereinafter to be other than or different from the facts now believed

11 by them to be tre, this Agreement shall be and remain effective notwithstanding such material

12 difference.
13
10.

This Agreement may be pled and wil serve as a full and complete defense to any
the

14 subsequent action or other proceeding involving any person or part which arises out of

15 claims released and discharged by the Agreement.

16

11.

Attorneys' fees and all costs shall be paid from, and not in addition to, the

17 payments described in paragraph 1, above. The settlement payment is made for the purose of
18 compromising disputed claims under the Federal Tort èlaims Act and avoiding the expenses and

19 risks of fuher litigation of the plaintiffs' claims.

20

12.

This is a compromise settlement of a disputed claim and demand, which
liability or fault on the part of

21 settlement does not constitute an admission of

the Settling

22 Defendants, or any of

their agents, servants, employees or attorneys, on account of

the events

23 described in Plaintiffs' complaint in this action.

24

13.

This instrment shall constitute the entire agreement between the paries, and it is
freely and voluntarily entered into

25 expressly understood and agreed that the Agreement has been

26 by the parties hereto with the advice of counsel, who have explained the legal effect of this

27 Agreement. The parties further acknowledge that no warranties or representations have been
28 made on any subject other than as set forth in this Agreement. This Agreement may not be
STIPULATED SETTLEMENT & RELEASE & (PROPOSED) ORDER

C 06-01777 MHP (ICS) 4

Case 3:06-cv-01777-MHP Document 54 Filed 08/01/2008 Page of 5 Case 1:05-cv-00186-FMA Document 85-3 Filed 06/06/2007 Page 5 8 of 53

1 altered, modified or otherwise changed in any respect except by writing, duly executed by all of
2 the parties or their authorized representatives.

3 IT is SO STIPULATED.
4 For Plaintiffs Jane Doe and Mary Roe.

5

LAW OFFICES OF BARY VOGEL
6

7
8 9

DATED: 616/07

lsI
By:

BARY VOGEL, ESQ.
Attorney for Plaintiffs

LAW OFFICES OF MICHAEL SORGEN
DATED: 6/6/07
lsI

10 11
12
By:

MICHAEL SORGEN, ESQ. Attorney for Plaintiffs

13
14

For the Settlng Defendants.
SCOTT N. SCHOOLS United States Attorney

15
DATED: 6/6/07

lsI
By:

16
17

OWEN P. MARTIKA
Assistant United States Attorney Attorneys for Federal Defendants

18 19

20 (PROPOSED) ORDER
21 Pursuant to stipulation, IT is SO ORDERED.

22 23
24
DATED:

HON. MARILYN HALL PATEL United States Distrct Judge

25

26
27 28

C 06-01777 MHP (ICS) 5

STIPULATED SETTLEMENT & RELEASE & (PROPOSED) ORDER

Case 1:05-cv-00186-FMA

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DEFENDANT'S EXHIBIT 3

Case 1:05-cv-00186-FMA

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Filed 08/01/2008

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Page 1

16 of 53 DOCUMENTS
Copyrght 2007 LexisNexis, Division of

Reed Elsevier Inc.

LexisNexis Jur Verdicts and Settlement Report

2007 Mealey's Jury Verdicts & Settlements 107

HEADLINE: Former Student Wins $96,125 In Case Involving Sexual Abuse By A Teacher
Case Name: Shannon Montalvo v. Frederick 1. Nowotarski Jr.
Case Number: 04-1239
Court: M.D. Pa.

Judge: Thomas i. Vanaskie
Verdict/Settlement (breakdown): $97,589.55 verdict ($20,000 for damages, $30,000 for

puntive damages, $46,125

for attorney fees, $1,464.55 for costs)

PIaintiff(s): Shaon Montalvo
Defendant(s): Frederick J. Nowotarski Jr.

Date: Jan. 5, 2007
Claim: Violations of right to freedom from invasion of personal securty though sexual abuse under 42 U.S. Code Section 1983
Defense: Liability denied.

Background: Shannon Montalvo, 23, alleges that in the 1996-1997 school year, while she was a seventh-grade student at Tamaqua Area Junior High School in Tamaqua, Pa., she was manipulated into sexual relations with Frederick Nowotarski Jr., a former music teacher in the Tamaqua Area School Distrct. Montalvo claim that the sexual molestation occured at school and other places and included assault, battery and intentionally inflicted emotional distress.Montalvo sued Nowotarski in the U.S. Distrct Cour for the Middle Distrct of Pennsylvania on June 8, 2004.

Plaintiff Experts: David Bur, psychiatrst, Philadelphia; testified about psychological injures.
Other: The jur answered yes to the following special verdict questions: Do you find that Montalvo proved by a prethe evidence that Nowotarski acted under the color of state law? Do you find that she proved by a preponderance of the evidence that while acting under the color oflaw, Nowotarski deprived her of a constitutional right? Do you find that the plaintiff proved by a preponderance of the evidence that the defendant commtted a battery against
ponderance of her? Do you find that the plaintiff proved by a preponderance of

the evidence that the defendant's conduct was extreme

proved by a preponderproved by a preponderance of the evidence that the defendant's conduct caused her severe emotional distress?
and outrageous?The jur answered no to the followig questions: Do you find that the plaintiff ance of the evidence that the defendant commtted an assault against plaintiff? Do you find that the plaintiff

Plaintiff Attorneys: Donald Feinberg, Feinberg and Silva, Philadelphia

Defense Attorneys: James Albert, Law Offces of James 1. Albert, Pittston, Pa.; Robin Snyder, Marshall Dennehey Warner Coleman & Goggin, Scranton, Pa.

Case 1:05-cv-00186-FMA

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Page

2

LexisNexis Jur Verdicts and Settlement Report (2007)

Key Related Documents: Amended complaint available. Document #99-070205-364C. Answer available. Document #99-070205-365W.
Montalvo's pretrial memorandum available. Document #99-070205-366B.

Bur' expert report, filed as an exhbit, available. Document #99-070205-367E. Rape crisis reports, filed as an exhbit, available. Document #99-070205-368X.
acts available. Document #99-070205-372X. Nowotarski's deposition, filed as exhibit, available. Document #99-070205-369D.
Nowotarski's statement off

Montalvo's deposition, fied as exhbit, available. Document #99-070205-370D.
Montalvo's statement off

acts available. Document #99-070205-371X.

Nowotarski's pretral memorandum available. Document #99-070205-373B.
Montalvo's proposed voir dire available. Document #99-070205-374X. Jur verdict available. Document #99-070205-375V. Dec. 21,2006, judgment awarding damages and puntive damages available. Document #99-070205-376R.

Jan. 5, 2007, judgment awarding attorney fees available. Document #99-070205-377R.
Contact Mealey's at 1-800-MEALEYS and see today's headlines at ww.lexis.com/legalnews. To see if there is a Mealey's conference on ths topic or an online CLE session, please visit: htt://ww.mealeys.com/conferences.htm.

LOAD-DATE: 2/19/2007

Case 3:04-cv-01239-TIV Document 66 Filed 08/01/2008 Case 1:05-cv-00186-FMA Document 85-3 Filed 12/21/2006

Page 1 of 1 53 Page 12 of

AO 450 (Rev.S/BS) Judgement in a Civil Case

======================================~====~~===============================

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYL VANIA
SHAON MONTALVO
JUGMENT IN A CIVIL CASE
VS.
FREDERI CK J. NOWOTARSKI, JR.

3 :CV-04-1239

~ Jury Verdict. This action came before the Court for a Trial

verdict.

by Jury. The issues have been tried and the jury has rendered its

Decision by Court. On defendants i motion for judgment as a matter of law with respect to the procedural due process and civil conspiracy claims.

I TIS ORDERED AN ADJUDGED
that judgment is entered in favor of plaintiff, Shannon Montal vo and against the defendant, Frederick J. Nowotarski, Jr. in the amount of twenty thousand dol~ars, ($20, 000) to. compensate the plaintiff for her damages.

IT is FURTHER ORDERED AN ADJUDGED
that judgment is entered in favor of plaintiff, Shannon Montal vo and against defendant Frederick J. Nowotarski, Jr. in the amount of thirty thousand dollars, ($30,000) for punitive

damages.

December 21! 2006
DATE

MARY E. D i ANREA

~~~.D
pUCïrk

CLERK

Case 3:04-cv-01239-TIV Document 85 Case 1:05-cv-00186-FMA Document 85-3

Filed 01/05/2007 Page 1 of 1 53 Filed 08/01/2008 Page 13 of

AO 450 (Rev. 5/B5) Judgement in a Civil Case

====~=~====:=~~~=~======~======~====~==-=~====~=~========-===--=~=====

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA
SHAON MONTALVO
JUDGMENT IN A CIVIL CASE

VS.
FREDERI CK J. NOWOTARSKI i JR.

3 :CV-04-1239

IT IS ORDERED AN ADJUGED
that judgment is entered in favor of plaintiff i Shannon Montal va and against the defendant i Frederick J. Nowotarski, Jr. in the amount of forty-six thousand one hundred twenty-five dollars, ($46,125.00) to compensate plaintiff for attorneys fees.

January 5! 2007
DATE

~#..~
pu Clerk

MARY E. D' ANDREA CLERK

Case 3:04-cv-0 1239- Document 85-3 Filed 09/16/2005 Page of 6 Case 1:05-cv-00186-FMATIV Document 27-1 Filed 08/01/2008 Page 114 of 53

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHANNON MONTALVO
Plaintiff
v.

Judge Thomas i. Vanaskie

Number: 3:04cv1239
Defendant
JURY TRIAL DEMANDED

FREDERICK J. NOWOTARSKI, JR.

PLAINTIFF'S COUNTER STATEMENT OF MATERIAL FACTS RE: SUMMARY JUDGMENT

1. Defendant and Miss. Montalvo's (age 12) relationship started in school
then evolved during the school year. (Exhibit "B" - Shannon Montalvo's Deposition
at p. 25.)
2. At first, the relationship entailed talking about everyhing at school when

Miss Montalvo would stay after school and also talking on the telephone. (Exhibit
"B" - Shannon Montalvo's Deposition at pp. 25-26.)
3. Defendant Nowotarski and Miss Montalvo's first conversation unrelated to

school matters occurred in Defendant's music room, at schooL. (Exhibit "B" Shannon Montalvo's Deposition at p. 24.)
4. Defendant and Miss Montalvo would talk about school, the stormy

relationship between Miss Montalvo and her parents, Miss Montalvo's history of

sexual abuse involving her grandmother's boyfriend and life in general. (Exhibit
"A" - Defendant Nowotarski's Deposition at pp. 55-61.)

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5. Defendant and Miss Montalvo's relationship turned physical on or about

October 6, 1996 when they kissed at Defendant's residence. (Exhibit "B" Shannon Montalvo's Deposition at p. 21.)
6. Other incidents of inappropriate physical contact between Defendant

Nowotarski and Miss Montalvo occurred as follows:
a. At a playground near Defendant's residence when Defendant and

Miss Montalvo were engaged in a game of basketbalL. Defendant Nowotarski
testified that the physical contact was incident to the game of basketbalL. (Exhibit

"A" - Defendant Nowotarski's Deposition at p. 45.) Then testified that he may
have put his arm around Miss Montalvo. (Exhibit "A" - Defendant Nowotarski's

Deposition at p. 48.) Finally, Defendant Nowotarski admits to a hugging Miss
Montalvo to protect against her kissing him. (Exhibit "A" - Defendant

Nowotarski's Deposition at pp. 73-74.)
b. At his residence, they engaged in sexual intercourse. (Exhibit "B" -

Shannon Montalvo's Deposition at p. 30.)

c. They engaged in intercourse on twenty-nine (29) occasions.
(Exhibit "B" - Shannon Montalvo's Deposition at p. 51.)

d. Defendant Nowotarski and Miss Montalvo engaged in fellatio in the
band room closet in schooL. (Exhibit "B" - Shannon Montalvo's Deposition at p.

122.)

e. The parties "made-out" behind the stage in schooL. (Exhibit "B" Shannon Montalvo's Deposition at p. 118.)

2

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f. The parties "made-out" in Defendant's classroom. (Exhibit "8" -

Shannon Montalvo's Deposition at p. 118.)
g. During a school dance, Defendant Nowotarski and Miss Montalvo

went to Defendant's classroom and hugged. (Exhibit "8" - Shannon Montalvo's

Deposition at p. 133.)
7. Defendant Nowotarski treated Miss Montalvo in favorable manner at

school by:
a. Defendant appointed Miss Montalvo choir manager despite that she

was in seventh grade and the choir manager is supposed to be an eighth grade
student. (Exhibit "8" - Shannon Montalvo's Deposition at p. 55.)
b. Defendant Nowotarski would give Miss Montalvo an "A" although

her performance was worse than her friends whom did not earn an "A". (Exhibit
"8" - Shannon Montalvo's Deposition at p. 88.)
c. Defendant Nowotarski would drive Miss Montalvo to schooL.

(Exhibit "8" - Shannon Montalvo's Deposition at p. 6'5.)
d. Defendant Nowotarksi would give Miss Montalvo passes allowing

her to get out of study hall to come to his classroom, where, at times, they were
the only two in the music room. (Exhibit "8" - Shannon Montalvo's Deposition at
p. 24.) Defendant Nowotarski admits to one occasion when they were in the

music room alone but later admits to four or five occasions. (Exhibit "A" Defendant Nowotarski Deposition at pp. 92-93.)
e. Defendant Nowotarski allowed Miss Montalvo to come to his music

room after school under the guise of helping her study and making sure her
3

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assignments were done. However, Defendant Nowotarski testified that as a
result of his involvement Miss Montalvo showed improved test grades but than
admits that he did not know how she was doing in other classes because he did
not check the test grades. (Exhibit "A" - Defendant Nowotarski's Deposition at

pp.66-67.)
8. Defendant would talk to Miss Montalvo, at his residence, about school and

other matters personal to Miss Montalvo such as her feelings of being abused by

her parents and history of sexual abuse by her grandmother's boyfriend. (Exhibit

"A" - Defendant Nowotarski's Deposition at pp. 55-59.) Defendant Nowotarski
does not remember what conversation they had at the school dance because the
music was too loud. (Exhibit "A" - Defendant Nowotarski's Deposition at p. 96.)
9. On March 28, 1994, Defendant Nowotarski received a reprimand from the

Tamaqua Area Junior High School principal, Robert Lombardo, as part of an

investigation into his alleged inappropriate conduct concerning female students,
concerning playing favorites. (Exhibit "C" - Formal Letter of Reprimand dated

March 28, 1994.)
10. As a result of Defendant Nowotarski's misconduct, Miss Montalvo suffered

emotional trauma resulting in emotional instability, erratic and self-destructive
behavior necessitating the need for medication and psychotherapy. (Exhibit "D"David R. Burns, M.D. Expert Report.)

4

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(Page intentionally left blank.)

Respectfully Submitted,
FEINBERG & SILVA

BY: IslDonald J. Feinberg, Esquire Identification Number: 72791 2000 Market Street, Suite 1805 Philadelphia, Pennsylvania 19103
Attorney for Plaintiffs Phone: (215) 665-8989

Fax: (215) 665-0250 E-mail: DJFLAW94~Comcast.net

5

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CERTIFICATE OF SERVICE
I, DONALD J. FEINBERG, J.D., LL.M., hereby certify that on this16th day

of September 2005, a true and correct copy of the preceding document was
served upon the following counsel of record via electronic filing:

Robin B. Snyder, Esquire
E-mail: rsnydercæmdwcg.com

FEINBERG & SILVA

BY: Donald J. Feinberg, Esquire/sl
DONALD J. FEINBERG, J.D., LL.M.

Identification Number: 72791 2000 Market Street, Suite 1805 Philadelphia, Pennsylvania 19103
Attorney for Plaintiffs Phone: (215) 665-8989 Fax: (215) 665-0250

E-mail: DJFLAW94cæComcast.net

6

Case 3:04-cv-01239- Document 85-3 Filed 08/01/2008 Page of of Case 1:05-cv-00186-FMA TIV Document 65 Filed 12/20/2006 Page 1 20 4 53

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHANNON MONTALVO

Plaintiff
v.
FREDERICK J. NOWOTARSKI, JR.

3:CV.04-1239
(JUDGE VANASKIE)

Defendant

SPECIAL VERDICT QUESTIONS

Civil Rights Act Claim.
1 (a). Do you find that Plaintiff, Shannon Montalvo, proved by a preponderance of

the evidence that Defendant, Frederick J. Nowotarski, Jr., acted under color of state law?

vesL No
If you answered "Ves" to question 1 (a), proceed to question 1 (b).

If you answered "No" to question t(a), proceed to question 2.

1 (b). Do you find that Plaintiff proved by a preponderance of the evidence thai while

acting under color of state law, Defendant deprived Plaintiff of a federal constitutional right?

Ves / No
Proceed to question 2.

Case 3:04-cv-01239-TIV Document 65 Filed 08/01/2008 Page 21 of Case 1:05-cv-00186-FMA Document 85-3 Filed 12/20/2006 Page 2 of 4 53

Assault
2. Do you find that Plaintiff proved by

a preponderance of the evidence that

Defendant committed an assault against Plaintiff?

Yes
Proceed to question 3.

NoL

Battery
3. Do you find that Plaintiff proved by a preponderance of the evidence that
Defendant committe~ a battery against Plaintiff?

Yesg No
Proceed to question 4(a).

Intentional

Infliction of Emotional Distress
4(a). Do you find that Plaintiff proved by a preponderance of the evidence that

Defendant's conduct was extreme and outrageous?

Yes j No
If you answered "Yes" to question 4(a), proceed to question 4(b).
If you answered UNo" to question 4(a), proceed to Damages.

2

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4(b). Do you find that Plaintiff proved by a preponderance of the evidence that
Defendant's conduct caused Plaintiff severe emotional distress?

Yes

NoJ

If you answered "Yes" to question 4(b), proceed to question 4(c).
If you answered uNo" to question 4(b), proceed to Damages.

4(c). Do you find that Plaintiff proved by a preponderance of the evidence that
Defendant acted intending to cause Plaintiff such distress or with knowledge that such
distress was substantially certain to occur?

Yes

No

Proceed to Damages.

Damages
If you answered yes to questions 1 (b) OR 2 OR 3 OR 4(c), proceed to questions 5

and 6. Otherwise, your deliberations are at an end. Your foreperson should sign and date
the form at the designated place and return to the Courtroom.

3

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5. What amount do you find will fairly and adequately compensate the Plaintiff for
her damages?

$ 20iObO ek\\CiíS

6. Do you find that Plaintiff proved by preponderance of the evidence that Defendant
acted with malice or reckless indifference to Plaintiff's protected rights?

vesL No
If you answered "Ves" to question 6, what amount of punitive damages, if any,
should Plaintiff be awarded?

$ 30 iObO ek Uo- ,.,

THE FO'REPERSON MUST SIGN AND DATE THIS VERDICT FORM.

Date: \ 2- - 20 - 2Döto

~~!1j
ore erson

4

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DEFENDANT'S EXHIBIT 4

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Page 1

20 of 53 DOCUMENTS
Copyrght 2006 LexisNexis, Division of

Reed Elsevier Inc. LexisNexis Jur Verdicts and Settlements Report
2006 Mealey's Jury Verdicts & Settlements 3233

HEADLINE: Georgia Jur Awards $5,000 To Woma Who Alleged Sexual Assault Against Hotel Owner
Case Name: Sheri L. Leggett V. Gold International Inc., et al.

Case Number: 2: 05-CV-00137-AA
Court: S.D. Ga.

Judge: Anthony A. Alaimo
Verdict/Settlement (breakdown): $5,000 plaintiff

verdict

PIaintiff(s): Sheri L. Leggett

Defendant(s): Gold International Inc., doing business as Days In, Yu Hai Ma
Date: Nov. 7,2006
Claim: Violations under Title VII of the Civil Rights Act of 1964, Section 701, et seq., as amended, 42 U.S. Code Section 200e, et seq., as amended, and the Civil Rights Act of 1991, as amended

Defense: Gold International and Ma denied the allegations, did not hie Leggett for the job and did not commt the offense of sexual battery. Leggett denied the allegations made against her in the counterclaim.

Background: Sheri L. Leggett claimed that in Januar 2005, she interviewed for and received a hotel manager position with the Days In in Bruswick, Ga., managed by Yu Hai Ma and his wife.Leggett claimed that in February 2005, Gold International Inc., doing business as Days In, through its employee, Ma, engaged in sexual harassment and discrination against her on the basis of national origin and race, black, and retaliation for not allowing a sexual battery to take place. On June 8, 2005, Leggett sent a charge of discrination and right-to-sue letter to the Equal Employment Opportuty Commssion, which was approved.Leggett sued Gold International on June 30, 2005, in the U.S. Distrct Cour for the Southern Distrct of Georgia, Bruwick Division.Gold International counterclaimed against Leggett on July 21, 2005, for intentional infliction of emotional distress. On Sept. 27, 2005, Leggett's motion to include Ma in the case was granted. Ma counterclaimed on Feb. 8, 2006, for intentional infliction of emotional distress.

Plaintiff Experts: Katherie L. Butler, M.S., was expected to testify as to the presence of semen on three arcles and
the results of the DNA testig of

Mao

Other: The case went to tral on Nov. 6,2006, and a verdict was reached Nov. 7, 2006. The jur found in favor of

Leggett and awarded her $5,000 in puntive damages. Judge Anthony A. Alaimo approved ths verdict on Nov. 8, 2006.

Plaintiff Attorneys: John T. McKnght Jr., Law Office of John T. McKnght Jr., St. Simons Island, Ga.; Steven L. Morgan, Law Offce of Steven L. Morgan, Bruswick
Defense Attorneys: Hoang The Nguyen, Law Offce of

Hoang The Nguyen, Atlanta; Jeffrey Brian Rentz, Wiliams,

Rentz & Associates, St. Simons Island

Case 1:05-cv-00186-FMA

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Page

2

LexisNexis Jur Verdicts and Settlements Report (2006)

Key Related Documents: Judgment available. Document #99-070514-F58R. Question from the jur to the cour available. Document #99-070514-F59X. Jur verdict available. Document #99-070514-F60V.

Jur instrctions available. Document #99-070514-F6IJ. Leggett's exhbit list available. Document #99-070514-F62E. Gold and Ma's exhbit list available. Document #99-070514-F63E.
Leggett's answer to Ma's counterclaim available. Document #99-070514-F64W. Ma's answer, counterclaim available. Document #99-070514-F65W. Leggett's answer to Gold's counterclaim available. Document #99-070514-F66W.

Leggett's expert witness report available. Document #99-070514-F67E. Order grantig motion for joinder ofMa available. Document #99-070514-F68R.
Gold's answer, counterclaim available. Document #99-070514-F69W.

Complaint available. Document #99-070514-F70C.
Contact Mealey's at 1-800-MEALEYS and see today's headlines at ww.lexis.com/legalnews. To see if there is a Mealey's conference on this topic or an online CLE session, please visit: htt://ww.mealeys.com/conferences.htm.

LOAD-DATE: 6/18/2007

Case 2:05-cv-00137-AA Document 53 Case 1:05-cv-00186-FMA Document 85-3
Judgment in a Civl case

Filed 11/08/2006 Page 1 of 1 53 Filed 08/01/2008 Page 27 of

AO 450 (GAS Rev 10/03)

United States District Court
Southern District of Georgia
SHERI L. LEGGETT

U.~~. l., '.; ¡ ~. ( "! \".l,. q l¡;:""-;:"r"'c' t"'."'IJR'
~.~~.~;~. '~'.":.:.:\,.'.':' ;"~~l:'.

flLtD

lOOb NOV -8 R 5~ (

"::..~ Û/k
JUDGMENT IN A CIVIL CASE
V.

CASE NUMBER: CV205-137

GOLD INTERNATIONAL, INC.. d//a DAYS INN, and YU HAl MA

II
D

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jur has rendered its verdict.
Decision by Court. This action came before the Court. The issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED
that in accordance with such verdict, the Plaintiff, SHERI L. LEGGETT do have and recover
nothing from the Defendants, GOLD INTERN

A TIONAL, INC., d/b/a DA Y8 INN and YU HAl

MA as to compensatory damages and Five Thousand Dollars and nol100 ($5,00.00) punitive
daages, with costs of cour, said costs to be taxed by the Clerk of this Court.

Approved by:

~~~~
\

November 8, 2006
Date

GAS Rev JOliO.\

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DEFENDANT'S EXHIBIT 5

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Page 1

29 of 53 DOCUMENTS
Copyrght 2006 LexisNexis, Division of

Reed Elsevier Inc. LexisNexis Jur Verdicts and Settlements Report
2006 Mealey's Jury Verdicts & Settlements 3200

HEADLINE: EEOC, Subway Reach $140,000 Settlement In Sexual Harassment Case
Case Name: Equal Employment Opportty Commssion V. Subway of Ashevile #7, et aL.
Case Number: 1: 05-CV-46
Court: W.D. N.C.

Judge: Denns Howell

Verdict/Settlement (breakdown): $140,000 settlement ($25,000 each in damages, costs and attorney fees to Melanie
Cooper, Jennfer Grady, Crystal Green, Chrstia Jackson and Danita Powell; $15,000 in damages, costs and attorney

fees to Jennifer Owen)

PIaintiff(s): Equal Employment Opportty Commssion
Defendant(s): Subway of Ashevile #7 LLC, Ahad Enterprises of

Nort Carolina Inc., Subway of Canton Inc., Sub-

way ofMerron Avenue Inc. and Suwan Subway LLC

Date: May 19, 2006
Claim: Violation of Title VII of the Civil Rights Act of 1964 and Title I of

the Civil Rights Act of 1991; negligent hi-

ing, supervision and retention; assault and battery

Defense: Liability denied.
Background: The Equal Employment Opportty Commssion alleged that Subway of Ashevile #7 LLC, Ahmad Enterprises of Nort Carolina Inc., Subway of Canton Inc., Subway of Merrmon Avenue Inc. and Suwan Subway LLC

(collectively, Subway) discrinated against Melanie Cooper, Jennfer Grady, Crystal Green, Chrstina Jackson and
Danita Powell because of

their sex while they were employed at a Subway sandwich shop in Asheville, N.C.It fuer

alleged that from October 2002 to Februar 2003, the employees were subjected to unwelcome sexual comments, gestues and touchig by a male supervisor. It claimed that Cooper, Green, Jackson and Powell complained to Subway

about the sexual harassment and that the women were forced to resign because no action was taken to prevent it.The EEOC claimed that Grady was discharged because she fied a discrimiation charge with the EEOC in October 2002.0n
Feb. 23, 2005, the EEOC sued Subway in the U.S. Distrct Cour for the Western Distrct of

Nort Carolina.

Other: On June 8, 2005, Cooper, Green, Jackson and Powell filed an intervenor complaint against Subway in the Distrct Cour. On July 8, 2005, Grady filed an intervenor complaint against Subway in the Distrct Cour.

Plaintiff Attorneys: For the EEOC - Eric S. Dreiband, Gwendolyn Young Reams, James Lee, Kara Gibbon Haden and Lynette A. Barnes, EEOC, Washigton, D.C. For Cooper, Green, Jackson and Powell- Jessica Eri Leaven, Adams Law Fir, Asheville, N.C. For Grady - Paul Louis Bidwell, Asheville

Defense Attorneys: John Craig Cloniger and Wiliam Bradford Searson, Cloninger, Lindsay, Hensley, Searson & Arcur, Ashevile, N.C., and Ronald C. True, Asheville

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Key Related Documents: Complaint available. Document #99-070528-GO 1 C.

Answer available. Document #99-070528-G02W. Intervenor complaint available. Document #99-070528-G03C. Answer to intervenor complaint available. Document #99-070528-G04W. Settlement agreement available. Document #99-070528-G05P.
Contact Mealey's at 1-800-MEALEYS and see today's headlines at ww.lexis.com/legalnews. To see if there is a Mealey's conference on this topic or an online CLE session, please visit: htt://ww.mealeys.com/conferences.htI.

LOAD-DATE: 6/13/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

EQUAL EMPLOYMNT
OPPORTUNITY COMMISSION, Plaintiff,
And

) ) ) ) ) )

CIVIL ACTION NO.l:05CV46

MELANIE COOPER, CRYSTAL GREEN, ) CHRSTINA JACKSON and DANITA )

POWELL, )
And
)

Plaintiff-Intervenors, )
)

CONSENT DECREE

JENNIFER GRAY, )
Plaintiff-Intervenor, )
v.
) ) ) ) ) )

)

SUBWAY OF ASHEVILLE #7, LLC,

AHM ENTERPRISES OF NORTH
CAROLINA, INC., SUBWAY OF CANTON, INC., SUBWAY OF MERRMON AVENUE, INC., and SUWAN SUBWAY, LLC, Defendants.

)
) .) ) )

The Equal Employment Opportnity Commission (the "Commission")
instituted this action pursuant to Section 706( f)( 1) and (3) of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. Section 2000e-5(f)(1) and (3) ("Title
VII"), and Section 102 of

the Civil Rights Act of 1991,42 U.S.C. § 1981a. The

Commission's complaint alleged that Defendants Subway of Asheville #7, LLC,
Ahmad Enterprises of North Carolina, Inc., Subway of Canton, Inc., Subway

of

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Merrimon Avenue, Inc., and Suwan Subway, LLC (collectively "Defendants")

discriminated against Melanie Cooper, Jennifer Grady, Crystal Green, Christina
Jackson, Danita Powell and other similarly situated female employees because of

their sex, female. The Commission's Complaint further alleged that Defendants
constrctively discharged Melanie Cooper, Crystal Green, Christina Jackson and

other similarly situated female employees

because of

their sex, and that Defendants

discriminated against Jennifer Grady by discharging her in retaliation for filing a
charge of discrimination. Thereafter, Melanie Cooper, Jennifer Grady, Crystal Green,
Christina Jackson, and Danita Powell intervened, through counsel, alleging violations
of Title VII and state law, including wrongful discharge in violation of

public policy,

intentional infliction of emotional distress, negligent infliction of emotional distress,
assault, battery, negligent hiring, and negligent supervision and retention. Defendants

and each of them have denied and deny all such allegations.

The Commission, Plaintiff-Intervenors, and the Defendants, hereby stipulate

to jurisdiction of the Court over the parties and agree that the subject matter of this
action is properly before the Court.

The parties have advised this Court that they desire to resolve the allegations
in the Commssion and Plaintiff-Intervenors' complaints without the burden, expense,

and delay of further litigation.

2

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It is therefore the finding of this Court, made on the pleadings and the record
as a whole, that: (1) the Court has jurisdiction over the parties and the subject matter

of this action; (2) the purpose and provisions of Title VII will be promoted and
effectuated by the entry of the Consent Decree; and (3) this Decree resolves all
matters in controversy between the parties, including all claims that were asserted by

the individual Plaintiff-Intervenors under federal and state law, as provided in
paragraphs 1 through 17 below.

ORDER

IT is, THEREFORE, ORDERED, ADJUDGED AND DECREED as
follows:

1. Defendants shall not discriminate against any person on the basis of sex
or any other protected category within the meaning of Title VII.

2. Defendants shall not discriminate or retaliate against any person because
of opposition to any practice made unlawful under Title VII of the Civil Rights Act
of 1964 or because of the filing of a charge, the giving of testimony or assistance, or

the participation in any investigation, proceeding or hearing under that statute.
3. Defendants shall pay damages, costs, and attorneys' fees in the total

amount of

One Hundred Fort Thousand Dollars ($140,000.00) in settlement of all

claims raised in this action. Defendants shall make payment of One Hundred
Twenty-Five Thousand Dollars ($125,000.00) within ten (10) days after the Court
3

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approves this Consent Decree and payment of an additional Fifteen Thousand Dollars
($15,000.00) within sixty (60) days after the Court approves this Consent

Decree. Of

said total amount, Defendants shall make payment by causing to be issued attorney's

Trust checks as follows:

A. To each Plaintiff-Intervenor (Melanie Cooper, Jennifer Grady,
Crystal Green, Christina Jackson and Danita Powell), damages,
costs and attorneys' fees in the amount of Twenty

- Five Thousand

Dollars ($25,000.00), subject to the payment schedule described
above, and to be allocated according to a written agreement

between counsel for Defendants and counsel for the individual
Plaintiff- Intervenors;
B. To Jennifer Owens, damages in the amount of

Twelve Thousand Five Hundred Dollars ($12,500.00) within ten (10) days after the Court approves this Consent Decree, and in the amount of Two Thousand Five Hundred Dollars ($2,500.00) within sixty (60) days after the Court approves this Consent Decree, for total payment ofFifteen Thousand Dollars ($15,000.00). The checks for Ms. Owens shall be sent directly to Ms. Owens at an address
to be provided by the Commission.

Within ten (10) days after each payment, Defendants shall mail to Lynette A. Barnes,

Regional Attorney, Equal Employment Opportnity Commssion, 129 W. Trade

Street, Suite 400, Charlotte, North Carolina 28202, a copy of each check and proof
of its delivery.

4. Defendant Subway of Asheville #7, LLC shall be responsible for
payment of all monetary sums set forth in paragraph 3, supra, yet the remaining
Defendants shall remain jointly and severally responsible for payment of said sums.
4

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5. Within ten (10) days of

the entry of

this decree by

the Court, Defendants

shall eliminate from the employment records of Melanie Cooper, Jennifer Grady,
Crystal Green, Christina Jackson, and Danita Powell, any and all documents, entries,

or references of any kind relating to the facts and circumstances which led to the

filing of EEOC Charge Numbers 140-2003-00093, 140-2003-00436, 140-2003-

03879, 140-2003-04325, 140-2003-04806, and 140-2003-04914 and the related
events that occurred thereafter. Within fifteen (15) days of the entry of

this decree by

the Court, Defendants shall report compliance with this provision to the Commssion.

6. Defendants agree to provide each of Melanie Cooper, Crystal Green,

Jennifer Grady, Christina Jackson, Jennifer Owens, and Danita Powell with a positive
letter of reference, a copy of

which is attached hereto as Appendix A, within fifteen

(15) days of

the entry ofthis Decree. Within ten (10) days of after mailing the letters

of

reference to Ms. Cooper, Ms. Green, Ms. Grady, Ms. Jackson, Ms. Owens, and Ms.

Powell, Defendants shall report compliance to the Commission. In addition, if
Defendants receive any inquiries regarding the employment of Ms. Cooper, Ms.
Green, Ms. Grady, Ms. Jackson, Ms. Owens, or Ms. Powell, Defendants shall provide

a copy of the letter in lieu of an oral response.
7. Within ninety (90) days of the entry of this Decree by the Court, each

Defendant shall adopt, implement, and distribute a formal, written anti-discrimination

5

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policy, which shall include but not be limited to the following: an explanation of the

requirements of the federal equal employment opportnity laws, including Title VII
and its prohibition against sexual harassment; procedures for reporting

discrimination, including sexual harassment; and a procedure for the thorough and

immediate investigation of employee complaints of discrimination and sexual
harassment. Each Defendant shall distribute to its current employees a copy of its

policy within the aforementioned 90 day time period. Within one hundred (i 00) days
of the entry of this Decree, each Defendant shall report compliance to the

Commission. During the term of this Decree, each Defendant shall distribute its
policy to all new employees and train the new employee on the policy at the time of
hire.
8. During the term of this Decree, each Defendant shall post a copy of its

policy described in paragraph 7, supra, in all of its facilities in a place where it is
visible to employees. Within ten (10) days after the Consent Decree is entered, each
Defendant will post its policy and notify the Commission that it has been posted. If

a policy becomes defaced or unreadable, the Defendant shall replace it by posting
another copy of

the policy.

9. During the term of this Decree, each Defendant shall provide an annual

training program to all of its manågers, supervisors and employees. Each training

program shall include an explanation of the requirements of Title VII of the Civil
6

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Rights Act of 1964, and its prohibition against sexual harassment and retaliation in

the workplace. Each training program shall also include an explanation of
Defendant's policy referenced in paragraph 7, supra, and an explanation of

the rights

and responsibilities of employees and managers under the policy.

The first training program for each Defendant shall be completed within one
hundred (100) days after entry of the decree by the Court. Each subsequent training

program shall be conducted at approximately one-year intervals. At least fifteen (15)
days prior to each program, the Defendant shall provide the Commission with an

agenda for the training program. Within ten (10) days after completion of each
training program, the Defendant shall certify to the Commission the specific training

which was undertaken and shall provide the Commission with a roster of all
employees in attendance.
10. Beginning within thirt (30) days after the entry of

this Decree by the

Court, and continuing throughout the term of this Decree, each Defendant shall
conspicuously post the attached Employee Notice, marked Appendix B, hereby made

a part of this Decree, in a place where it is visible to employees at its facilities. If a

Notice becomes defaced or unreadable, the Defendant shall replace it by posting
another copy of the Notice. Within fort-five (45) days after entr of

this Decree,

each Defendant shall notify the Commission that the Notice has been posted pursuant
to this provision.

7

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11. During the term of this Consent Decree, each Defendant shall provide

the Commission with reports at six (6) month intervals, with the first being due four
(4) months after approval by the Court of

this Decree. The reports will include the

following information:

A. the identities of all individuals who have reported or complained of sexual harassment or sexual conduct, including by way of identification each person's name, last known telephone number and address, social security number, and job title;

B. for each individual iaentified in II.A. above, provide a detailed
the individual's report/complaint and what action, if any, Defendant took in response to the report/complaint;
description of

C. the identities of all individuals who have opposed any practice
made unlawful under Title VII of

the Civil Rights Act of 1964, or

who have filed a charge, given testimony or assistance, or
participated in any investigation, proceeding or hearing under the

foregoing statute, including by way of identification each
person's name, address, telephone number, position, and social security number;

D. For each individual identified in II.C. above, explain whether the individual's employment status has changed in any respect (for example, including but not limited to, termnation, firing, demotion, promotion, or to part-time from full-time); and
E. for each individual whose employment status has changed. as

identified in II.D. above, a detailed statement explaining why the individual's employment status has changed.
In the event there is no activity to report pursuant to this paragraph, the

Defendant( s) having nothing to report shall send the Commission a "negative" report
indicating no activity.

8

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12. The Commission may review compliance with this Decree. As part of

such review, the Commission may inspect Defendants' facilities, interview employees
and examine and copy documents. However, such inspections, interviews and

examinations shall take place at reasonable times during Defendants' normal business
hours and in such a manner so as not to disrupt the orderly ongoing business of

Defendants.
13. If anytime during the term of this Decree, the Commission believes that

anyone or more Defendants is in violation of

the Decree, the Commission shall give

a reasonably detailed notice of the alleged violation to that Defendant. The
Defendant(s) shall have fourteen (14) calendar days in which to investigate and
respond to the allegations. Thereafter, the Commission and the Defendant(s) shall

have a period of fourteen (14) calendar days or such additional period as may be
agreed upon by them, in which to engage in

negotiation regarding such allegations

before the Commission exercises any remedy provided by law.
14. The term of

this Decree shall be for four (4) years from its entry by the

Court.
15. All reports or other documents sent to the Commission by Defendants

pursuant to this Decree shall be sent to: Lynette A. Barnes, Regional Attorney, Equal

Employment Opportnity Commission, 129 W. Trade Street, Suite 400, Charlotte,
North Carolina 28202.
9

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16. Each part shall bear its own costs and attorney's fees except as
otherwise set forth in paragraph 3, supra.

17. This Court shall retain jurisdiction of this cause for purposes of
monitoring compliance with this Decree and entry of such further orders as may be
necessary or appropriate. The Decree shall expire by its own terms at the end of

four

(4) years without further action by the parties.
18. The court has conducted an independent review of the proposed consent

degree, and finding that the terms of the decree comply with current law, are

reasonable, and further the interests of justice, the decree is so entered.

Signed: May 19,2006

Q~~~\)
Dennis L. Howell United States Magistrate Judge

...,e..
'~; -"'.:

10

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The parties jointly request that the Cour approve and enter the Consent Decree: GRADY, Plaintiff-Intervenor COMMISSION, Plaintiff lsI Paul L. Bidwell JAMESL. LEE PAUL L. BIDWELL (NC Bar No. 12868) Deputy General Counsel 29 N. Market Street
EQUAL EMPLOYMENT OPPORTUNITY JENNIFER

Ashevile, North Carolina 28801

GWENDOLYN YOUNG REAMS Associate General Counsel
lsI Lynette A. Barnes
LYNTTE

Telephone: 828.252.0490 Facsimile: 828.252.0511

Email: bidwellaw(?cs.com

A. BARS (NC BarNo. 19732)

Regional Attorney
Email: lynette.barnesC?eeoc.gov

SUBWAY OF ASHEVILE #7, LLC, AHMAD ENTERPRISES OF NORTH
CAROLINA, INC., SUBWAY OF CANTON,

lsI Kara Gibbon Haden

INC., SUBWAY OF MERRON AVENU,

KA L. GIBBON HADEN
(NC Bar No. 26192) Senior Trial Attorney

INC., and SUW AN SUBWAY, LLC.,
Defendants
lsI Ronald C. True RONALD C. TRUE (NC Bar No. 13137)
One Oak Plaza, Suite 106
Ashevile, North Carolina 28801

Charlotte Distrct Offce
129 West Trade Street, Suite 400

Charlotte, North Carolina 28202
Telephone: 704.344.6887 Facsimile: 704.344.6780

Email: kara.hadenC?eeoc.gov

Telephone: 828.251.5001 Facsimile: 828.251.1080

Email: trueatty(?bellsouth.net
MELANæ COOPER, CRYSTAL GREEN, CHRISTINA JACKSON and
DANIT A POWELL, Plaintiff-Intervenors
lsI Jessica E. Leaven

lsI W. Bradford Searson
JOHN C. CLONINGER (NC Bar No. 9752)

W. BRAFORD SEARSON
(NC Bar No. 18749)

JESSICA E. LEAVEN (NC Bar No. 27832)

CLONINGER, ELMORE, HENSLEY &
SEARSON, PLLC 366 Merrmon Avenue
Ashevile, North Carolina 28801

THE ADAMS LAW FIR
81- B Central Avenue
Ashevile, North Carolina 28801

Telephone: 828.251.1821 Facsimile: 828.251.1802

Telephone: 828.252.1786 Facsimile: 828.252.1874

Email: jesfriC?bellsouth.net

Email: cloninger(?clhsa.com

searson(?clhsa.com

11

Case 1:05-cv-00186-FMA

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Filed 08/01/2008

Page 42 of 53

APPENDIX

A

(Defendant letterhead)

(insert date)

TO WHOM IT MAY CONCERN:
We are pleased to provide the following reference on behalf of our former employee, (Employee Name).

us, (Employee Name) held the position of (Job Title). A copy of

(Employee Name) was employed by Subway of Asheville #7 from (insert date) until (insert date )(, andfor Jennifer Grady, was employed by Ahmad-Fakoury Enterprises from (insert date) to (insert date)). During her tenure with her job description for the position is attached. Although our reference policy generally limits our
of North Carolina, Inc.

comments to the foregoing information, we are willing in (Employee Name's)

situation to affirm that she is an honest and reliable employee who possesses
excellent customer service skills. Indeed, we valued (Employee Name's) services to our organization.

We hope that this information about (Employee Name) is helpful to you II
considering her application.

Sincerely,

Latif F akoury Managing Member Subway of Asheville #7 LLC
(Ahmad-Fakoury Enterprises of

North Carolina, Inc.)

Case 1:05-cv-00186-FMA

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APPENDIXB IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

EQUAL EMPLOYMENT )
OPPORTUNITY COMMISSION, )

CIVIL ACTION NO.l:05CV46

Plaintiff, )

v. )
) )

SUBWAY OF ASHEVILLE #7, LLC, )

AHMAD ENTERPRISES OF NORTH )
CAROLINA, INC., SUBWAY OF CANTON, ) INC., SUBWAY OF MERRMON AVENUE, )

EMPLOYEE NOTICE

INC., and SUWAN SUBWAY, LLC, )

Defendants. )
)

1. This Notice is posted pursuant to a settlement between the U.S. Equal Employment Opportnity
Commssion and Subway of Ashevile #7, LLC, Ahmad Enterprises of North Carolina, Inc., Subway of Canton, Inc., Subway of Merrimon A venue, Inc., and Suwan Subway, LLC in a case alleging discrimination based on sex. Specifically, the EEOC alleged that Defendants subjected female employees to a sexually hostile work environment and constructively discharged some of the affected females, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). The EEOC furter alleged that Defendants discharged one of the female employees in retaliation for fiing an EEOC charge. As a part of the settlement, Defendants agreed to take certain actions as set out in the Consent Decree, appearing of record, resolving this matter.

2. Federal law requires that employers not discriminate against any employee or applicant for

employment because of the individual's race, color, religion, sex, national origin, age (40 or older) law also prohibits retaliation against employees because they have opposed unlawful employment discrimination, or because they gave testimony or assistance in or participated in an employment discrimination investigation, proceeding, or hearing, or otherwise asserted their
or disability. Federal

rights under the laws enforced by the EEOC.
3. Defendants wil comply with such federal

laws in all respects. Furhermore, Defendants wil not take any actions against employees because they have exercised their rights, reported an alleged violation

under the law or given testimony, assistance or participation in any investigation, proceeding or hearing conducted by the U.S. Equal Employment Opportity Commission.
An employee has the right, and is encouraged to exercise that right, to report allegations of employment

discrimination in the workplace. An employee may contact their local U. S. Equal Employment Opportnity

Commssion field offce for the purpose of fiing a charge of employment discrimination. To locate the
nearest field offce, contact:

Equal Employment Opportnity Commssion
1801 L Street, N.W. .Washington, DC 20507 TEL: 1-800-669-4000 TTY: 1-800-669-6820

This Notice wil remain posted for at least four (4) years by agreement with the U.S. Equal Employment
Opportnity Commssion. DO NOT REMOVE THIS NOTICE

UNTIL: ,2010.

Case 1:05-cv-00186-FMA

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION
) )
) ) )

(J 'bPPORTUNITY COMMISSION,

~i~UAL EMPLOYMENT

CIVIL ACTION NO.

)'.cÇ"cvWo-T
).,
,
. 0-

Plaintiff,
v.

,

-'

SUBWAY OF ASHEVILLE #7, LLC, AHMAD ENTERPRISES OF NORTH CAROLINA, INC., SUBWAY OF CANTON, INC., SUBWAY OF MERRMON AVENUE, INC., and SUWAN SUBWAY, LLC,

) ) ) ) ) ) ) ) )
) )

ì
¡

COMPLAINT
,

,

) - .- .,
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(:.;,
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,
.'"

JURY TRI DEMAND
r-.j
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Defendants.

NATURE OF THE ACTION
This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991, to correct unlawfl employment practices on the basis of sex (female) and to
provide appropriate reliefto individuals who were adversely affected by the practices.
Specifically, Plaintiff

Equal Employment Opportunty Commission (the "Commission") alleges

that Defendants Subway of Ashevile #7, LLC, Ahad Enterprises of

Nort Carolina, Inc.,

Subway of

Canton, Inc., Subway ofMerrimon Avenue, Inc., and Suwan Subway, LLC

(collectively "Defendants") discriminated against Melanie Cooper, Jennifer Grady, C-----G------, C---------- J---------, D----- P------ and other similarly situated female employees because

of their sex, female. The Commission further alleges that Defendants constrctively discharged
Melane Cooper, C------ G------, c-------- J------- and other similarly situated female employees

Case 1:05-cv-00186-FMA

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ftU1\L JEll

because of their sex. Moreover, the Commission alleges that Defendants discriminated against
Jennfer Grady by discharging her in retaliation for filing a charge of discrimination.

JURISDICTION AND VENUE
1. Jurisdiction of

this Cour 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(t) (1) and (3) ("Title

VII"), and Section 102 ofthe Civil Rights Act of 1991, 42 U.S.C. § 1981a.

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

jurisdiction of

the United States District Cour for the Western District of

North Carolina.

PARTIES
3. Plaintiff Equal Employment Opportity Commission, is the agency of

the United

States of America charged with the adinistration, interpretation and enforcement of

Title VII of

the Civil Rights Act and is expressly authorized to bring ths action by Sections 706(f)(1) and (3)

of

Title VII, 42 U.S.C. § 2000e-5(t)(1) and (3).
4. At all relevant times, Defendant Subway of Ashevile #7, LLC has continuously

been a North Carolina corporation doing business in the State of

Nort Carolina and the County

of Buncombe.
5. At all relevant times, Defendant Ahad Enterprises of

Nort Carolina, Inc. has
Nort Carolina

continuously been a North Carolina corporation doing business in the State of

and the County of

Buncombe.

6. At all relevant times, Defendant Subway of Canton, Inc. has continuously been a

Nort Carolina corporation doing business in the State of

North Carolina and the County of

Haywood.
2

..~...&..'- ...&..

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7. At all relevant times, Defendant Subway of Mèrrmon A venue, Inc. has

continuously been a Nort Carolina corporation doing business in the State of

Nort Carolina

and the County of Buncombe.
8. At all relevant times, Defendant Suwan Subway, LLC has continuously been a

North Carolina corporation doing business in the State of

Nort Carolina and the County of

McDowelL.
9. On information and belief, Defendants have operated as an integrated business

enterprise since at least Januar 1996, and maintain their principal place

of business in Ashevile,

Nort Carolina.
10. At all relevant times, as an integrated business enterprise Defendants continuously

had at least fifteen employees.
11. At all relevant times, Defendants jointly and severally, have continuously been an

employer engaged in an industry affecting commerce under Sections 70 1 (b), (g) and (h) of Title

VII, 42 U.S.c. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS

12. More than thirt days prior to the institution ofthis lawsuit, Melanie Cooper,
Jennifer Grady, C------ G---._., C-------- J-------, and D------ P------ fied charges with the
Commission alleging violations of

Title VII by Defendants. All conditions precedent to the

institution of this lawsuit have been fulfilled.
13. From around October 2002 until around Febru 2003, Defendants engaged in

unawfl employment practices at Defendants' Subway sandwich shop on Leicester A venue in
Ashevile, North Carolina ("Leicester Subway"), in violation of Section 703(a)(1) of

Title VII, 42

U.S.C. § 2000e-2(a)(1), as set forth below:
3

---..-.""",~",
Case 1:05-cv-00186-FMA Document 85-3 Filed 08/01/2008 Page 47 of 53
a. Defendants subjected Melanie Cooper,