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

Filing 324

ORDER denying Defendant's #142 Motion to Strike. The Court DECLINES to adopt the Recommendation (#223 ) and OVERRULES the EEOC's Objections (#238 ). The Motion to Strike (#142 ) is DENIED, with leave to renew as a motion in limine with regard to the evidence to be presented at trial. By Chief Judge Marcia S. Krieger on 2/13/2013.(klyon, )

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

Consolidated with:
Civil Action No. 12-cv-02137-MSK-MEH
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
WENDY J. CABREARA,
Intervenor-Plaintiff,
v.
THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC.,
Defendant.

ORDER DENYING DEFENDANT’S
MOTION TO STRIKE

THIS MATTER comes before the Court on Defendant HoneyBaked Ham’s (HBH)
Motion to Strike Catherine Vigil, Shannon Kennedy, Kelly Teegarden and Lisa Jager as
Allegedly Aggrieved Individuals (#142). The EEOC filed its Response (#185), and HBH

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Replied (#204). The matter was referred to the Magistrate Judge, who Recommends (#223) that
the Motion be granted in part and denied in part. The EEOC Objects (#238) to the
Recommendation. HBH filed a Response (#249) to the EEOC’s Objections, and the EEOC
Replied (#258).
I. Jurisdiction
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
II. Background
The Court recites only those facts that are pertinent to the instant motion.
In 2011, the EEOC initiated this action, asserting claims of sex discrimination and
retaliation. As filed, the Amended Complaint (#6) alleges that sexual harassment and retaliation
permeated throughout HBH District 8 and was committed by several managers and supervisors.
At an initial scheduling conference, the Magistrate Judge set April 30, 2012 as the
deadline by which the EEOC was to identify each aggrieved individual for whom it seeks relief.
By separate order, the Magistrate Judge instructed that by June 4, 2012, the EEOC must disclose
to HBH the names of all aggrieved individuals who wished to participate in the lawsuit.
On June 4th, the EEOC notified HBH that it “now represents Messes. Catherine Vigil,
Shannon Kennedy, Kelly Teegarden and Lisa Jager’s legal interests in this lawsuit.” (These four
individuals were in addition to 18 previously-identified individuals.)
HBH now seeks to “strike” these four women from the group of allegedly aggrieved
individuals on the basis that they were untimely identified by the EEOC. It further requests an
award of attorney feeds pursuant to Fed. R. Civ. P. 37(b)(2)(C). The EEOC responds that it was
aware of the existence of these individuals (and thus, identified them) by April 30th, but it
simply was unable to communicate with them until after the deadline.

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The Magistrate Judge recommends that the Motion be granted as to HBH’s request to
strike, reasoning that the four individuals were not timely identified. The Magistrate Judge
further recommends that that HBH’s request for attorney fees denied as unjust under the
circumstances.
III. Standard of Review
When a magistrate judge issues a recommendation on a dispositive motion, the parties
may file specific, written objections within fourteen days after being served with a copy of the
recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Here, the EEOC filed timely
Objections to the Recommendation. The Court therefore reviews the Recommendation de novo.
U.S. v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.
1996).
IV. Analysis
First, the Court observes that the instant Motion was filed, and the Recommendation was
issued, before the Court ruled (#289) on HBH’s Motion to Dismiss. In that Order, the Court
ruled that the EEOC’s claims in this suit are limited to (1) sex discrimination resulting from a
hostile work environment created by the sexual harassment of James Jackman, while a manager
of stores in District 8, and (2) retaliation against employees who engaged in protected activity in
complaining of Mr. Jackman’s harassment. In its Order, the Court limited the scope of the
litigation to Mr. Jackman’s conduct while managing stores in District 8. Thus, the instant
Motion has become moot to the extent that it concerns individuals allegedly harassed by
someone other than Mr. Jackman.

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To whatever extent the Motion remains at issue, it appears to be an attempt to limit any
award of damages to the EEOC for the benefit of aggrieved individuals.1 In that respect, it is
premature.2 The Motion presents an evidentiary issue — HBH essentially seeks to prevent the
EEOC from presenting evidence about certain aggrieved individuals. But whether such evidence
should be precluded cannot be determined until it is clear what evidence will be presented at
trial.
V. Conclusion
For the forgoing reasons, the Court DECLINES to adopt the Recommendation (#223)
and OVERRULES the EEOC’s Objections (#238). The Motion to Strike (#142) is DENIED,
with leave to renew as a motion in limine with regard to the evidence to be presented at trial.
Dated this 13th day of February, 2013.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

1

As noted in previous orders, the EEOC brings its own claim and does not stand in the shoes of
the aggrieved individuals. Thus, the group of aggrieved individuals is relevant only as to the
amount of damages that the EEOC could potentially recover.
2

The Motion also appears to be mislabeled as a “Motion to Strike.” The Federal Rules of Civil
Procedure do not provide for relief in the form of “striking” individuals.
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