Free Joint Case Management Statement - District Court of California - California

Case 5:07-cv-04973-JW

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1 Robin E. Weideman, State Bar No. 197595 Jennifer D. Barrera, State Bar No. 219617 2 CARLTON DiSANTE & FREUDENBERGER LLP 8950 Cal Center Drive 3 Suite 160 Sacramento, California 95826 4 Telephone: (916) 361-0991 Facsimile: (916) 361-1480 5 E-Mail: [email protected] [email protected] 6 Attorneys for Defendant 7 BAHAMA BILLY'S, INC. 8 Evangelina Fierro Hernandez (State Bar #168879) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 9 San Francisco District Office 350 The Embarcadero, Suite 500 10 San Francisco, California 94105 Telephone: (415) 625-5622 11 Facsimile: (415) 625-5657 12 Attorneys for Plaintiff EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 13 14 15 16 17 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 18 Plaintiff, v. 19 20 BAHAMA BILLY'S, INC., 21 22 23 24 25 26 27 28 1. Jurisdiction and Service: Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. C074973 JW PVT JOINT STATUS STATEMENT Date: February 11, 2008 Time: 10:00 a.m. Loc: Courtroom 8, Fourth Floor San Jose Division Action Filed: September 26, 2007 Trial Date: TBA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

All parties have been served. Jurisdiction of this case in the Northern District of California, San Jose Division, is proper. All parties are subject to the Court's jurisdiction and the Court has jurisdiction over all claims. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343 and 1345. // 1
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2.

Facts:

Plaintiff's Position: Plaintiff EEOC, the federal agency charged with enforcing Title VII of the Civil Rights Act of 1964, brought this action on behalf of Charging Party Wynne Dauernheim ("Charging Party") 1 who was subjected to a hostile work environment based on her sex, and retaliated against for engaging in protected activity under Title VII. The hostile work environment coupled with the Defendant's retaliatory action caused the constructive discharge of Charging Party. Bill Lee, owner, created an atmosphere at Bahama Billy's which allowed for sexual harassment to occur with no protection or recourse for the servers who worked there. Lee had no anti-harassment policy in place, nor did he provide training to his employees. He made a special effort to pair male customers with female servers and encouraged flirting as a way of "taking care of" important male customers. There is evidence that Lee himself has a history of inappropriate behavior with female servers, including touching them in a sexual way and holding a "best butt contest" wherein he lined up all of the female servers and had them turn around to see who was wearing the skimpiest outfit. There is also evidence that the female waitresses were subjected to sexually tainted comments, such as "she has a nice [body part]" or "I bet she would be good at [sexual conduct]," by the kitchen staff each time that she picked up a food order. All of the servers interviewed mentioned that restaurants are inherently more sexualized than other workplaces, which make it appear that Lee's actions as an owner, paired with the lack of complaint policies or training, led servers to believe that they should just expect to be harassed as part of their job duties. Charging Party received no discipline during her seven-year tenure at Respondent until just two days after complaining to Bill Lee about being sexually harassed by customers she was serving. Three male customers inappropriately touched Charging Party three times, with one instance resulting in injury. After raising her concerns to Lee, he fabricated a customer complaint and suspended Charging Party for two weeks (later reduced to one). Teresa Lee questioned

26 27 parties." Individuals who file charges of discrimination with the EEOC are termed "charging 28 2
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Charging Party's desire to remain at the restaurant and told her to "turn the page" with regard to the harassment. Charging Party was constructively discharged when the stress and anxiety she experienced as a result of the harassment caused her to take a leave of absence. She felt she could not return because she knew that Bill Lee would take no action to prevent or remedy sexual harassment by customers in the future. Defendant's Position: Defendant denies all of Plaintiff's allegations. Defendant never subjected Charging Party

8 or any other employee to a hostile work environment. Plaintiff's allegations that Bill Lee allowed 9 and/or participated in any inappropriate conduct are fabricated and lack merit. Defendant had an 10 anti-harassment policy in place and it was well-known by all employees that sexual harassment was 11 absolutely prohibited. 12 Plaintiff's allegations that Charging Party was retaliated against after reporting the she was

13 sexually harassed by customers also lacks merit. As the evidence demonstrates, Plaintiff was 14 excited about serving the three male customers because she believed she would receive a large 15 gratuity. She bragged to other employees about the fact that one of the male customers gave her 16 $20.00 for bringing him a can of Diet Coke. The Charging Party actually sat with the three male 17 customers at their table. Not once during the night on which Charging Party served the three 18 customers did Charging Party ever complain that she had been harassed or touched inappropriately. 19 In fact, the only thing Charging Party complained of was that the three male customers did not 20 leave her a larger gratuity. Following this alleged incident, Charging Party worked for two more 21 nights at the restaurant without ever claiming she was harassed or touched inappropriately. She 22 was eventually placed on a one week suspension due to the receipt of customer complaints 23 regarding her poor service. Charging Party later requested a leave of absence due to stress and 24 never returned, thereby abandoning her employment. 25 3. Legal Issues:

26 Plaintiff: 27 28 3
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Whether Charging Party was subjected to a sexually hostile work environment;

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Whether Defendant knew or should have known about the harassment and failed to take immediate and appropriate corrective action;

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Whether Defendant had an effective anti-harassment policy with a complaint procedure available to Charging Party during the relevant period;

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Whether Defendant took any adverse employment action against Charging Party in retaliation for engaging in protected activity;

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Whether Charging Party suffered emotional distress or pain and suffering as a result of any act or omission by Defendant;

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Whether Charging Party suffered any economic loss because of any act or omission by Defendant;

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Whether Defendant acted with malice or reckless disregard for the federally protected rights of Charging Party.

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Whether Defendant violated Title VII of the Civil Rights Act of 1964, as amended; Whether Charging Party is entitled to monetary damages pursuant to the Civil Rights Act of 1991;

· · · ·

Whether Plaintiff EEOC is entitled to any injunctive relief; Whether Plaintiff EEOC can recover punitive damages from Defendant; Whether Charging Party failed to mitigate their damages; Whether Plaintiff EEOC's claims are barred by the Faragher-Ellerth defense;

Defendant: · Did Defendant knowingly create and/or allow a sexually hostile work environment for Charging Party? · Did Defendant retaliate against Charging Party for allegedly complaining of sexual harassment? · · Did Defendant constructively discharge Charging Party? Is Charging Party/EEOC entitled to injunctive relief? 4. Motions:

No motions are pending at this time. Defendant anticipates filing a motion for summary 4
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1 judgment following initial discovery. 2 3 5. Amendments to Pleadings:

Plaintiff does not currently anticipate any amendments to its pleadings. Defendant does not

4 currently anticipate any amendments to its pleadings. 5 6 6. Evidence Preservation:

Plaintiff has preserved all information known to be relevant to this lawsuit, including any

7 hard or electronic information pertaining to this case. Defendant has preserved all information 8 known to be relevant to this lawsuit, including any hard or electronic information pertaining to 9 Plaintiff. 10 11 7. Disclosures:

By stipulation and order, the parties are scheduled to exchange initial disclosures on

12 February 4, 2008. 13 14 8. Discovery:

Defendant's Position: To date, no discovery has been taken. Initial disclosures were

15 exchanged on February 4, 2008. Defendant anticipates that discovery will commence in late 16 February 2008. Discovery will likely consist of Charging Party's deposition, third-party witness 17 depositions, and limited written discovery. The parties have agreed to complete the Charging 18 Party's deposition on two separate days, each session lasting 3 ½ hours. Defendant does not 19 currently anticipate a need for any other modifications. 20 Plaintiff's Position: To date, no discovery has been taken. Initial disclosures were

21 exchanged on February 4, 2008. Defendant anticipates that discovery will commence in April 22 2008. Discovery will likely consist of Charging Party's deposition, third-party witness depositions, 23 and limited written discovery. The parties have agreed to complete the Charging Party's deposition 24 on two separate days, each session lasting 3 ½ hours. Defendant does not currently anticipate a 25 need for any other modifications. 26 27 28 9. Class Action:

This is not a class action and there is no basis for a class action. 10. Related Cases: 5
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There are no known related cases. 11. Relief:

Plaintiff's Position: (a) On behalf of Charging Party Plaintiff EEOC will seek the value of the lost wages

and benefits flowing from the discrimination, less mitigation. This amount will include prejudgment interest or front pay. (b) On behalf of Charging Party, Plaintiff EEOC also seeks compensation for past and

future pecuniary losses resulting from the discrimination, including but not limited to medical expenses, with interest, in amounts to be determined at trial. (c) On behalf of Charging Party, Plaintiff EEOC seeks compensation for emotional pain

and suffering, and punitive damages. Damages sought by Plaintiff EEOC are subject to the limitations specified in 42 USC §1981a. (d) Plaintiff EEOC also seek injunctive relief enjoining Defendant from engaging in

sex-based harassment or retaliation against female employees and ordering Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for female employees, including a work environment free from discriminatory sex based harassment. (e) (f) Plaintiff EEOC also seeks the reinstatement of Charging Party to her employment. Plaintiff EEOC will also seek to recover the costs of litigation to the extent

allowable by law. Defendants' Position: Defendant does not have any affirmative claims for relief against Charging Party or Plaintiff. Regarding Plaintiff's claims, Defendant does not believe Plaintiff and/or Charging Party are entitled to any relief because Charging Party was not sexually harassed, subjected to a hostile working environment, retaliated against, or constructively discharged. Moreover, there is no basis for injunctive relief as there is no evidence of any alleged ongoing violations. 12. Settlement and ADR:

The parties have stipulated to participate in the Court mediation program. In the event there is a settlement conference, the parties request that the settlement judge be a judge other then the 6
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1 trial judge. 2 3 4 5 13. Consent to Magistrate Judge for All Purposes:

The parties do not consent to a Magistrate Judge. 14. Other References:

The parties have stipulated to participate in the Court mediation program. The parties do

6 not believe any other reference is necessary or suitable at this time. 7 8 9 10 11 basis. 12 13 basis. 14 15 17. Scheduling: Plaintiff's Position: Plaintiff does not believe this case should be heard on an expedited 15. Narrowing of Issues:

The parties have not agreed to the narrowing of any issues at this point. 16. Expedited Schedule:

Defendants' Position: Defendant does not believe this case should be heard on an expedited

After meeting and conferring, the parties agree to the following schedule and pertinent cut-

16 off dates for this matter: 17 18 19 20 21 22 23 24 25 26 27 Non-expert discovery cutoff: January 16, 2009 Last Day to hear Non-Expert Discovery Motions and Dispositive Motions: February 27, 2009 Disclosure of Expert Witnesses: March 27, 2009 Supplemental Disclosure of Experts: April 30, 2009 Expert Discovery Cut-Off: May 29, 2009 Last Day to Hear Expert Discovery Motions: June 30, 2009 Pre-Trial Conference and Disclosures: July 2009 Trial: August 2009 18. Trial:

Defendants' Position: Plaintiff has demanded a jury trial. It is difficult to estimate length of

28 trial at this time as the parties have not yet conducted any discovery; however, Defendant estimates 7
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1 a 7-10 day trial. 2 3 4 5 6 7 8 9 Dated: February 4, 2008 10 11 12 13 14 15 Dated: February 4, 2008 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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Plaintiff's Position: Plaintiff estimates a 7-10 day trial. 19. Disclosure of Non-Party Interested Entities or Persons:

Defendant is not aware of any non-party interested entities or persons. E-filing concurrence: I, Evangelina Fierro Hernandez, attorney for Plaintiff EEOC, attest that I have obtained the concurrence of Jennifer Barrera, attorney for Defendant, for the filing of this joint case management conference statement.

CARLTON DiSANTE & FREUDENBERGER LLP

By: /s/ Jennifer D. Barrera Jennifer D. Barrera Attorneys for Defendant BAHAMA BILLY'S, INC.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

By: /s/ Evangelina Fierro Hernandez Evangelina Fierro Hernandez Attorneys for Plaintiff EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

JOINT STATUS STATEMENT