Equal Employment Opportunity Commission v. Original Honeybaked Ham Company of Georgia, Inc., The

Filing 223

Recommendation of United States Magistrate Judge that #142 MOTION to Strike Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager as Allegedly Aggrieved Individuals be granted in part and denied in part. Modified on 10/19/2012 to correct text.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02560-MSK-MEH
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
WENDY CABRERA,
Intervenor Plaintiff,
v.
THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC.,
Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s Motion to Strike Catherine Vigil, Shannon Kennedy, Kelly
Teegarden and Lisa Jager as Allegedly Aggrieved Individuals [filed August 10, 2012; docket #142].
Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and to D.C. Colo. LCivR 72.1.C, the matter has been
referred to this Court for disposition or recommendation, as appropriate. For the following reasons,
the Court respectfully recommends that the District Court grant in part and deny in part the
Defendant’s motion.1

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Be advised that all parties shall have fourteen (14) days after service hereof to serve and file
any written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not consider
frivolous, conclusive or general objections. A party's failure to file such written objections to
proposed findings and recommendations contained in this report may bar the party from a de novo
determination by the District Judge of the proposed findings and recommendations. United States
v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and recommendations within fourteen (14) days after
being served with a copy may bar the aggrieved party from appealing the factual findings of the

I.

Background
The Court has previously outlined the nature of this case in several orders. Generally, the

EEOC alleges claims of sexual harassment/hostile environment and retaliation under Title VII of
the Civil Rights Act of 1964, as amended (“Title VII”). Its original claim at the administrative level
involved one complainant, Plaintiff-Intervenor Cabrera, who alleged a sexually hostile work
environment against one supervisor (James Jackman, the general manager of one of Defendant’s
stores in Highlands Ranch, Colorado) for a two-month period, March to May 2010, along with an
allegation of retaliation against the Defendant for her termination. Subsequent to the administrative
proceedings, the EEOC’s allegations have included additional aggrieved individuals (including the
original complainant, Wendy Cabrera) who claim to have suffered sex harassment. The EEOC seeks
compensatory and punitive damages in this case.
In the present motion, Defendant seeks to strike the four persons named in the motion’s
caption from participating in this case as aggrieved individuals, on the basis of discovery limitations
which I placed on this lawsuit. Because granting this motion would have an impact on the
individuals’ participation in this case, I am issuing a Recommendation.
II.

Discussion
I have presided over proceedings brought by the EEOC in which the length of time in naming

allegedly aggrieved individuals until late in the lawsuit has caused significant delay and expense.
Armed with that background, at the December 20, 2011 scheduling conference in this case, I
discussed a deadline by which the EEOC would identify such individuals so that effective discovery
could take place. The EEOC informed me that Defendant was seeking a deadline of February 20,
2012 for identifying allegedly aggrieved individuals; however, the EEOC contended that this

Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140,
155 (1985); In re Garcia, 347 F. App’x 381, 382-83 (10th Cir. 2009).
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deadline would be too early, because the EEOC would need discovery from Defendant in order to
locate and contact persons who claim to have suffered sexual harassment. The parties proposed a
total discovery period of eight months, which is two months longer than the presumptive discovery
period in this District. I determined that permitting a period of four months of discovery for the
EEOC to identify potentially aggrieved individuals, and then four months of discovery for the
Defendant to get the individuals’ stories, was the proper solution. Therefore, I set April 30, 2012
as the deadline to identify potentially aggrieved individuals.
The context of the on-record discussion quoted by the Defendant in its reply brief, and my
own knowledge and understanding of those and subsequent proceedings, establishes that April 30,
2012 was the date by which the EEOC would identify and disclose to the Defendant those
individuals who the EEOC had targeted as aggrieved individuals. Paragraph 8(f) of the Scheduling
Order sets forth the parties’ discussion of this issue in their own words (which I did not alter prior
to docketing the Scheduling Order):
The EEOC and Defendant agree that there will be a date at which
time the EEOC agrees to have disclosed a finalized list of aggrieved
individuals for whom it seeks relief, and the parameters of any relief
it seeks for as yet unidentified aggrieved individuals, if any should
exist. The EEOC and Defendant are unable to agree on that date. The
EEOC contends that the date cannot be demarcated yet as it is
contingent on the EEOC receiving employee information from
Defendant through discovery and having the opportunity to canvass
it. The EEOC intends to ask in its first set of discovery requests for
a complete employee list with contact information . . . . Once
Defendant produces this list, as specified, to the EEOC, the EEOC
requests five (5) months from date of receipt to identify additional
aggrieved individuals and disclose them to Defendant, providing
Defendant with three and a half months to seek discovery of the
added individuals before the close of discovery if Defendant provides
the list to the EEOC in a timely manner.

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I did not agree with either the EEOC (which sought approximately six months2 in which to “identify
additional aggrieved individuals and disclose them to Defendant”), or Defendant (which argued for
only two months), but instead chose a middle ground of four months.
At the scheduling conference, the following discussion took place concerning this paragraph:
THE COURT: Do you have a list of people right now?
MS. HALPERN: Your Honor, if I may. Yes, we’ve identified all 17 people specifically
already.
THE COURT: Okay.
MS. HALPERN: We may identify several more after we get certain information we need to
Candace (phonetic).
THE COURT: Well, what’s a fair time for you to stop identifying people in a lawsuit?
MS. HALPERN: Well, we attempted to suggest, and this is another point where the two -the three parties are in difference with each other. We attempted to suggest that once they
got us the information that we needed, which is mostly employee data information with
contact information and names, that a certain number of months afterwards we would have
had the opportunity to canvas everyone and make known all of the aggrieved individuals that
we are attempting to seek relief for.
Transcript at 9-10 (Docket #41). It was clear to me then, and it is clear to me now, that “identify”
in this context meant “make known all of the aggrieved individuals that [the EEOC is] attempting
to seek relief for.” See id. In my prior experience, and as noted by Defendant in its reply, after
identifying the allegedly aggrieved individuals to the Defendant, some of those individuals might
decide not to participate in the lawsuit. Therefore, I set June 4, 2012 as the deadline by which the
EEOC would inform Defendant whether any of the identified individuals had decided not to
participate. Between April 30 and June 4, 2012, I presumed the EEOC would be speaking with
persons with whom it had already established a relationship in order to discuss and decide whether
those persons wished to go forward.
Ultimately, later in the scheduling conference, I confirmed this understanding of the order
of things in the following colloquy:

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This six-month request presumed the EEOC would issue its initial discovery requests
quickly, thus giving one month for Defendant’s response and five months for discovery thereafter.
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THE COURT: Well, I assume the EEOC has talked to every one of the 17 people they’ve
identified and they have a Rule 11 good faith basis for including them in a list of people.
MS. HALPERN: Yes, Your Honor, many times.
Id. at p. 18. As of the scheduling conference, the EEOC had identified and disclosed to Defendant
17 persons on whose behalf the EEOC was proceeding. This was the same quality of information
that I expected would be provided to the Defendant by April 30, 2012, memorialized by my use of
the term “identified.”
I disagree that the term “identify” means, as the EEOC suggests, that on or before April 30,
2012, the EEOC was only required to be aware of the existence of individuals such as Catherine
Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager (through employee lists or otherwise) as
employees of the Defendant, and that the disclosure requirement for such persons to the Defendant
was not until June 4, 2012. This would mean that Defendant’s discovery period concerning
allegedly aggrieved individuals would have been cut by more than a month relative to what was
intended in the Scheduling Order. Such an interpretation is wrong.
The deadline for identifying to the Defendant the potentially aggrieved individuals in this
case was April 30, 2012. I have not granted any extension of this deadline, which expired nearly
six months ago. Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager were not
identified in compliance with the Court’s Order. Certainly, these individuals are free to file their
own lawsuits, if they so choose. However, in this case, they should be stricken as allegedly
aggrieved individuals, and I recommend that the Defendant’s motion to strike be granted.
With respect to Defendant’s request for an award of fees pursuant to Fed. R. Civ. P.
37(b)(2)(C), the Court finds that an award would be unjust under the circumstances. Although I
strongly disagree with its position, the EEOC held a good faith belief that the deadline for disclosure
of allegedly aggrieved individuals should be June 4, 2012. Therefore, I recommend that Defendant’s
motion for attorney’s fees be denied.
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III.

Conclusion
Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager were not identified on

or before April 30, 2012 pursuant to the Scheduling Order in this case, and the Court has not granted
an extension of this deadline; however, an award of fees in this matter would be unjust. Thus, the
Court respectfully RECOMMENDS that the District Court grant in part and deny in part the
Defendant’s Motion to Strike Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager
as Allegedly Aggrieved Individuals [filed August 10, 2012; docket #142] as set forth herein.
Dated at Denver, Colorado this 18th day of October, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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