Nuts & Bolts of HWE Cases (1) (Part 2 of 4)

Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997), involved a class action pattern or practice hostile work environment claim and utilized a modified Teamsters model, which the Eight Circuit adopted. Jenson is distinguishable from this case, however, in one important way. In Jenson, the alleged conduct involved sexually explicit graffiti and posters found in common areas such as the lunchroom, lockers, desks, offices, vehicles, elevators, women’s restrooms, inter-office mail and company bulletin boards. See Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 880 (D. Minn. 1993).

While women individually experienced unwelcome touching, including kissing, pinching and grabbing and offensive language, generic comments were also made to groups of women. Id. Here, the alleged conduct almost exclusively involves actions perpetuated by one individual against another individual in an isolated environment, not conduct in a common environment directed against several women at once. This is relevant to the proof plaintiffs intend to use to at Phase I to establish the offensive conduct, which is an element that plaintiffs have failed to address and that does not appear to be amenable to

common evidence. CRST argues that plaintiffs’ approach of examining each individual complaint in order to extrapolate some common policy, pattern or practice in the aggregate, and without any expert analysis, is insufficient to certify a class. See Doc. No. 172-1 at 27. Plaintiffs’ evidence primarily consists of CRST records during the relevant time period as to how CRST handled sexual harassment complaints and summary exhibits prepared by plaintiffs’ counsel based on those records. Plaintiffs argue the three alleged policies, patterns and practices are borne out by these records.

Even if plaintiffs are correct on this point, CRST argues that the policies, patterns and practices that plaintiffs identify would address only the second aspect of a hostile work environment claim as identified above – the employer’s response. See Doc. No. 197 at 20. CRST argues that plaintiffs have failed to describe how they intend to prove the other elements of a hostile work environment at Phase I and contends that proof of these elements cannot involve common evidence because each alleged incident of sexual harassment took place in isolation from any other. This raises the question of whether an employer’s common response to individualized hostile conditions can form the entire basis of a hostile work environment claim.

I find that it cannot. Plaintiffs are not alleging that CRST’s policies, patterns or practices themselves are the harassing conduct, but the means by which CRST tolerates, encourages and allows sexual harassment in the workplace. As CRST notes, this addresses the second part of a hostile work environment claim (the employer’s response), but the first part (the unwelcome sexual harassment and the severity of such harassment), is equally important to establish liability. Aside from the employer’s alleged negligence, plaintiffs must prove: (1) that they are members of a protected group, (2) that they were subjected to unwelcome sexual harassment, (3) that the harassment was based on sex, (4) that the harassment affected a term, condition or privilege of their employment. See Hall

v. Gus Const. Co., 842 F.2d 1010, 1013 (8th Cir. 1998). The harassment must be more

than isolated or sporadic. A hostile work environment occurs when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to later the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (citations omitted). A hostile work environment claim does not involve isolated incidents, but ongoing and repeated conduct. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 115 (2002). This is where the class structure falls apart, as there is no common evidence regarding the alleged harassment female drivers experienced. This is not a situation such as that in Jenson in which the plaintiffs were working in the same environment and the F. Supp. at 880 (describing that many of the alleged instances of unwelcome sexual harassment applied to all women including visual references posted around the workplace and comments by male co-workers to groups of women). Here, the harassment primarily took place one-on-one in a truck by a codriver against another codriver or by a lead driver against a student driver. While some women experienced multiple offensive encounters, most women reported only one instance of sexual harassment, as evidenced by plaintiffs’ summary exhibits. Of course, these women could have been subjected to other offensive conduct that was not reported or that is outside of the class time period. Nonetheless, the nature of the offensive conduct at issue is isolated and sporadic when viewed from each plaintiff’s perspective, even if appears severe and pervasive when all of the complaints are viewed together. Any commonality concerning CRST’s alleged response (or lack of response) to each reported incident of harassment has no bearing on the isolated nature of the harassing conduct.

Considering that at Phase II, the conduct will have to be evaluated again (regarding whether it is objectively and subjectively offensive), the class structure, even with regard to one issue (the employer’s negligence), loses its efficiency. See Int’l Profit Assocs.,

2007 WL 3120069 at *3 (“Therefore, a finding that employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual suffered violates Title VII. It is thus unclear what effect a pattern or practice finding should have on an individual claimant’s suit for damages.”). The allegedly offensive actions, not the employer’s alleged policies, are what create difficulties in trying hostile work environment claims as a class. See Elkins, 219 F.R.D. at 424 (“Given the variations in the frequency and the severity of the behavior to which different female workers were subjected, the Court must conclude that commonality is lacking.”).18 In sum, I find that the hostile work environment class and certified issue do not meet the predominance and superiority requirements under Rule 23(b)(3), nor the commonality requirement under Rule 23(a). The hostile work environment class must be decertified.

Iv. Conclusion

For the reasons stated herein: 1. Defendant’s motion (Doc. No. 171) for partial summary judgment regarding the class retaliation claim is granted. The class claim of unlawful retaliation is hereby dismissed. 2. Defendant’s motion (Doc. No. 172) for decertification of the Hostile Work Environment class is granted and the Hostile Work Environment Class is hereby decertified.

18 In discussing Elkins in my previous order, I focused on the policies that plaintiffs were subjected to rather than the conduct in concluding that plaintiffs’ claims were typical to the class. See Doc. No. 85 at 39-40. When viewing plaintiffs’ claims in this new light, it appears that plaintiffs would also have difficulties meeting the typicality requirement under Rule 23(a) because the offensive conduct differed from plaintiff to plaintiff – even if CRST’s response allegedly remained the same.

3. The plaintiffs may pursue their hostile work environment claims against defendant on an individual basis. In addition, while I have granted summary judgment as to the class claim of retaliation, this does not preclude the possibility that an individual plaintiff might have a viable retaliation claim based on the specific facts and circumstances of that plaintiff’s case.

IT IS SO ORDERED. DATED this 15th day of January, 2019. ________________________________ Leonard T. Strand, Chief Judge

United States District Court

Forthe Eastern District Of Virginia

Norfolk Division JANET AVILES, etal., for themselvesandonbehalfof all similarlysituatedindividuals, Plaintiffs, Civil ActionNo. 2:13cv418

Bae Systems Norfolk

SHIP REPAIR, INC., and

Bae Systems Ship Repair,

Defendants. ORDER This class action suit was originally filed on July 29, 2013. On December 17, 2013, Plaintiffs Janet Aviles, Jamieka Brown, Stephanie Jackson, and Kel Sharpe filed an Amended Complaint against Defendants BAE Systems Norfolk Ship Repair, Inc. ("BAE Norfolk") and BAE Systems Ship Repair, Inc. ("BAE"). Plaintiffs seek to represent a class consisting ofall female non-union employees of Defendants' Norfolk shipyard who have been discriminated against onthebasisofsex. Am.Compl. paras. 101-02. Defendants dispute Plaintiffs'abilityto bring this suit on a class basis.

The Amended Complaint asserts four claims: (1) sex discrimination in violation ofTitle VII ofthe Civil Rights Act of 1964("Title VII"), 42 U.S.C. §§ 2000e etseq., on behalf ofthe class; (2)sexdiscrimination inviolation ofTitleVII,on behalfofNamedPlaintiffs individually; (3) retaliation in violation ofTitle VII, on behalfofthe class; and (4) retaliation in violation of Title VII, on behalfofNamed Plaintiffs individually. Am. Compl. paras. 283-308, ECF No. 10.

Plaintiffs seek declaratory and injunctiverelief, lost wages, punitive damages, costs, attorney's fees, and interest. Id. at prayer for relief.

On February 21, 2014, Defendants filed a Motion to Strike (ECF No. 22) and a Partial Motion to Dismiss (ECF No. 24). Defendants' Motion to Strike asserts that Plaintiffs' claims cannot be litigated as a class action because they do not raise common questions oflaw and fact. Defendants' Partial Motion to Dismiss asserts that some of the incidents discussed in the Amended Complaint have been resolved or were not brought before the Equal Employment Opportunity Commission ("EEOC") in a timely manner.

Forthe followingreasons, Defendants' Motionto Strike(ECFNo. 22) and PartialMotion to Dismiss (ECF No. 24) are DENIED.

I. Factual Background

Defendants have moved to dismiss portions of the Amended Complaint for failure to state a claim, and to strike the class allegations for failure to state a claim. Ina motion to dismiss for failure tostate a claim, the Court accepts the claimant's well-pled allegations astrue. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Such allegations are construed in the light most favorable to theclaimant. E.g., Philips v. Pitt Cnty. Mem'I Hosp., 572 F.3d 176, 180 (4thCir.

2009). Plaintiffs' allegations are as follows: BAE Norfolk follows a hierarchical business structure. Am. Compl. para. 20, ECFNo. 10. BillClifford is the President, and Russell Tjepkemais the Vice President. Id. BelowMr. Tjepkema are seven Craft Managers, each of whom supervises approximately three of BAE's twenty-two shops. Id. Each shop ismanaged bya Craft Shop Supervisor. Id. The remaining ranks are asfollows: Assistant Craft Shop Supervisor, Supervisor (Steps One, Two, and Three), Specialist, Mechanic (First, Second, and Third Class), Handyperson (First, Second, and Third Class), and Helper(First and Second Class). Id.

Step Two Supervisors and all subordinate employees are union workers whose employment is governed by a Collective Bargaining Agreement ("CBA"). Id. at paras. 20, 27. AllpositionsaboveStepTwo Supervisorarenon-unionpositions. See id. The Labor Shop is structured differently from the other shops: the only ranks below Supervisor are FirstClass Laborerand SecondClass Laborer. Id. at para. 29. As a result,First Class Laborers cannotbepromoted withoutfirstbeingtransferred toanothershop. Id. Laborers receivelesspaythanother low-rankedworkers. Id. at para.30.

Employees in other shops are sometimes loaned to the Labor Shop. Id. at para. 31. While working for the Labor Shop, employees' progress towards advancement in their own shops isimpeded. Id. atpara. 53. Plaintiffs allege thatfemale employees areloaned totheLabor Shop more frequently andfor longer periods oftime than male employees. Id.

The CBA provides that, whenever practicable, overtime fora task should beprovided to the employees who are usually assigned to that task. Id. at para. 47. When this is not practicable, overtime is to be divided as equally as possible between employees of the same seniority. Id. The CBA further provides that BAE Norfolk should post lists where the employees can sign up to volunteer for overtime work. Id. at para. 48. BAE Norfolk may employ contractors to work overtime only in emergencies or when regular employees are unavailable. Id. at para. 49.

Plaintiffs allege that female employees are often denied overtime even after signing up forit,andmale contractors aregivenovertime instead. Id. atparas.48-49. Under theCBA,unionworkers' pay is tiedto theworkers' ranks. Id. at para. 27. Craft Shop Supervisors and Craft Managers have discretion to determine the starting ranks of employees hired intheir shops, subject tothe approval ofthe Personnel Department. Id. atpara.

37, 43-44. Plaintiffs allege that female employees frequently are assigned to lower starting ranks than similarly-qualified male employees. Id. at paras. 35, 37. Inordertoprogress between ranks, an employee must request a promotion fromthe Craft Shop Supervisor, and this request must be approved by the Craft Manager and the Personnel Department. Id. at para.57. BAENorfolkalso hasan unofficialrequirementthatan employee obtain a recommendation from a supervisor in order to be promoted. Id. at para. 76. The decision to makesuch a recommendation is discretionary. Id. Plaintiffsallegethatsupervisors andmanagers often exercise thisdiscretion inadiscriminatory manner. Id. atpara. 58. Plaintiffs further allege that Human Resources often fails to inform employees of vacancies, preventing female employees from applying for them, and that female employees who seek promotions are required tomeet standards thatarenotimposed onmale employees. Id. atparas. 51-52,55,62.

Asa result ofthisdiscrimination, female employees must often file union grievances to obtain promotions. Id. at para. 56. Because the Step Two Supervisors and Step Three Supervisors are union members, aggrieved employees are often forced to rely on those supervisors to pursue the grievances, even if the union official handling the grievance is the supervisor against whom the grievance isdirected. Id. atpara. 79. Even when these grievances are granted, the possibility of discrimination is not investigated, and the aggrieved employee doesnot receivebackpayforthedelay. Id. at para.77-78.

BAE Norfolk has a four-year Apprenticeship Program, in which participants are promoted to First Class Mechanics. Id. at para. 59. BAE Norfolk also hasa two-year Trainee Program that promotes Helpers toSecond Class Handypersons. Id. atpara. 60. Plaintiffs allege thatfemale employees frequently aredenied such training opportunities. Id. atpara. 54.

By late 2012, there were only two women serving as Supervisors in the shops related to productionandmaintenance,and no womanhadever held a position above AssistantCraft Shop Supervisor in any shop. Id. at paras. 32-33. After learning that Plaintiffs intended to sue, BAE Norfolkpromotedwomento supervisorypositions. Id. at para. 34.

Plaintiffs allege that "BAE has failed to create adequate incentives for its managers to comply with equal employment opportunity laws and has failed to adequately discipline its managers andotheremployees whentheyviolate theanti-discrimination laws." Id. at para. 116. On several occasions, Vice President Tjepkema hascommented on female employees' physical appearances andmadesexuallysuggestive remarks directed atthem. Id. atpara. 64. Supervisors alsomakediscriminatory remarks or sexual overtures to female employees without reprisal, and frequently exchange pornography at work. Id. at paras. 65-67. Lower-level workers regularly engage insexual discussion andusederogatory termstorefertowomen. Id. atparas. 68-69.

Female employees complain frequently to their supervisors, upper management, and Human Resources about this behavior. Id. at para. 72. Harassment complaints are usually disregarded or investigated inadequately. Id. at paras. 80,82. When such complaints succeed, thewrongdoer israrely disciplined effectively. Id. atpara. 83. Female employees who complain aboutdiscriminationor harassmentareoftensubjectedtoretaliation. Id. at para.84.

Plaintiffs' Amended Complaint lists numerous incidents of alleged discrimination, harassment, and retaliation against Named Plaintiffs and other female employees of BAE Norfolk. Id. at paras. 126-282. Because Defendants do not contest the sufficiency of these allegations to state individual claims of sex discrimination and retaliation, the Courtforgoes a recitation ofthese allegations.

Plaintiffs seek to represent a class consisting of"all female citizens ofthe United States who are, or have been,employed by BAE at the Norfolk Shipyard and have experiencedgender discrimination atanytimeduringtheapplicable liability period,"excluding non-union managers and supervisors. Id. at paras. 101-02. Plaintiffs allege that this class includes more than one hundred members. Id. at para. 103.

Ii. Standard Of Law

A. MotiontoDismiss FederalRuleofCivilProcedure 12(b)(6)permitsadefendant to seekdismissalbasedona plaintiffs "failure to state a claim upon which reliefcan be granted." Fed. R. Civ. P. 12(b)(6) (2014). Amotiontodismissforfailuretostateaclaimshouldbegrantedifthecomplaintfailsto allege "enough facts to state a claim to relief that is plausible on its face." BellAll. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Requiring a claim to be plausible "does not impose a probability requirement at the pleadingstage." Id. at 556. However,it doesrequiremorethana "sheer possibilitythat a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Because conclusory allegations "necessitate some 'factual enhancement' within the complaint to cross 'the line between possibility and plausibility ofentitlement to relief,'" a '"formulaic recitation of theelements ofa cause of action will notdo.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)(quoting Twombly, 550 U.S. at 555,557).

A 12(b)(6) motion "test[s] the sufficiency ofa complaint" and does not "resolve contests surrounding the facts, themerits of a claim, ortheapplicability of defenses." Presley v. City of Charlottesville, 464F.3d 480,483(4thCir.2006) (alteration provided) (quoting Edwards v. City

ofGoldsboro, 178 F.3d231,243(4thCir. 1999)) (internal quotationmarksomitted). Asnoted, a court should assume the truth of well-pleaded factual allegations. Iqbal, 556 U.S. at 679. Although the truth of the facts alleged is assumed, and the facts are taken in the light most favorable to theplaintiff, courtsare not bound by"legal conclusions drawn from the facts" and "neednot accept as true unwarranted inferences, unreasonable conclusions, or arguments." E.

ShoreMkts. Inc. v. J.D. Assocs. Ltd. P'ship, 213F.3d 175,180(4thCir.2000). B. TitleVII This Court has subject matter jurisdiction over job discrimination claims only if they werewithin thescopeoftheclaimant's EEOC charge. Jones v. Calvert Grp., Ltd., 551 F.3d297, 300(4thCir.2009). Foraclaimtobewithin thescopeofan EEOCcharge,itmustbe"statedin the initial charge, . . . reasonably related to the original complaint, . . . [or] developed by reasonable investigation of theoriginal complaint." Evans v. Techs. Applications &Serv. Co., 80F.3d 954, 963 (4th Cir. 1996). Ifanincident occurred more than 300days before thefiling of the plaintiffs EEOC charge, it can be raised in a subsequent lawsuit only if it was part of a continuing violation and at least one actinthat violation occurred within the300-day statute of limitations. Nat'I R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). However, discriminatory events that do not provide bases for relief "may still constitute relevant background evidence for valid claims." Evans,80 F.3d at 962.

C. ClassAllegations A courtmaycertifya class actiononlywhen"there are questionsof lawor factcommon to the class." Fed. R. Civ. P.23(a)(2) (2014). "This does not mean merely thatthey have all suffered a violationofthe same provision of law." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,2251(2011). Instead,"[t]heirclaims must depend upon a common contention." Id. "That

common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. "What matters to class capacityofaclasswideproceedingtogeneratecommonanswersapt todrivetheresolutionofthe litigation." Id. (omission in original) (quoting Richard A. Nagareda, ClassCertification inthe AgeofAggregate Proof, 84N.Y.U. L.Rev.97,132 (2009))(internalquotation marksomitted).

While the decision whetherto certify a class action is normally made after discovery, "[s]ometimes the issues are plain enough from the pleadings to determine whether the interests oftheabsent parties arefairly encompassed within thenamed plaintiffs claim." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160(1982). Because motionsto strikeclassallegations challenge the sufficiency of the pleadings, they are addressed under the same plausibility standard as motionstodismissunderFederalRuleof CivilProcedure 12(b)(6). SeeGlobalHub Logistics v.

Tamerlane GlobalServs., Inc.,No. l:12-cv-1350, 2013 WL 1332048, at *3 (E.D. Va. Mar. 29, 2013) ("In reviewing a motionto strike,a court . . . 'must view the pleading underattack in a light most favorable to the pleader.'" (quoting Racickv. DominionLawAssocs.,270 F.R.D. 228, 232 (E.D.N.C. 2010))); cf Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (stating that motionsarguing thatsubject matterjurisdiction is insufficiently pled are resolved under the same standard as motions under Rule 12(b)(6)).

Iii. Analysis

Defendants have filed a Motion to Strike Plaintiffs' class allegations and a Partial Motion to Dismiss. The Partial Motion to Dismiss is addressed first.

A. PartialMotionto Dismiss In their Partial Motion to Dismiss, Defendants assert that (1) some ofMs. Aviles's claims are barredbya ConciliationAgreementthat resultedfrom an earlier EEOC charge;(2) Plaintiffs did not exhaust their administrative remedies with respect to some of the allegations in the AmendedComplaint;and(3) Plaintiffs' allegationsofdiscriminatory hiringaretime-barred.

Defendants do not dispute that some of the allegations in the Amended Complaint are properly before the Court and that these undisputedly permissible allegations are sufficient to stateclaimsofdiscriminationand retaliationwithrespectto eachNamed Plaintiff. Even factual allegations which cannot provide relief "may still constitute relevant background evidence forvalid claims." Evans, 80 F.3d at 962. Therefore, evenassuming that the challenged allegations cannot provide freestanding bases for relief, those allegations are nonetheless properly included in the Amended Complaint as relevant background evidence.

Such evidence is especially relevant because Plaintiffs bear a burden of establishing that Defendants "operated under a general policy of discrimination." Dukes, 131 S. Ct. at 2553 (quotingFalcon, 457U.S.at 159n.15)(internal quotationmarksomitted). Defendants' Partial Motion to Dismiss is DENIED. B. MotiontoStrikeClassAllegations Defendants have also moved tostrike Plaintiffs' class allegations. Defendants argue that Plaintiffs' classallegationsare barredby Wal-Mart v. Dukes, 131 S. Ct. at 2554-55. Defendants alsoargue thatPlaintiffs lackstanding to bring claims of discriminatory hiring because Named Plaintiffs' individual claims of discriminatory hiring are purportedly time-barred. Finally, Defendants argue that Plaintiffs' claims of retaliation and requests for monetary damages precludeclasscertification becausethoseissuesareinherentlyindividualized.

Defendants' reliance on Dukes is unavailing. Dukes held that plaintiffs can pursueclass actions under Title VII if they offer "[significant proof that an employer operated under a general policy of discrimination" and "the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective n.15) (internal quotation marks omitted).

In Dukes, the plaintiffs submitted a social framework analysis of the defendant's corporate culture that concluded that the defendant's corporate structure was "vulnerable" to discrimination. Id. at 2553. The plaintiffs also submitted statistical and anecdotal evidence of discrimination. Id. at 2555. TheSupremeCourtheldthatthe socialframework analysiswastoo ambiguous to constitute "significant proof," and that the statistical and anecdotal evidence was unhelpful because evidence of discrimination in some regions did not provide evidence of a nationwide policy or practice of discrimination. Id. at 2554-55 ("In a company of [the defendant's] size and geographical scope, it is quite unbelievable that all managers would exercisetheirdiscretionin a commonway withoutsome commondirection."). As a result,the Supreme Court heldthat class certification inthat case was improper. Id. at 1556-57.

The FourthCircuit laterrecognizedthatDukes "did not set out a per se ruleagainst class certification where subjective decision-making or discretion is alleged." Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013). "[E]ven in cases where the complaint alleges discretion, ifthereisalsoanallegation ofa company-wide policyof discrimination, the putative class may still satisfythe commonality requirement for certification." Id. at 114.

Plaintiffs' allegations meet this standard. Unlike the plaintiffs in Dukes, who reliedon an inconclusive study and "a few anecdotes selected from literally millions of employment

decisions," Dukes, 131 S. Ct. at 2553, 2556 n.9, Plaintiffs have alleged that Defendants' senior management publicly demonstrated discriminatory behavior, Am. Compl. para. 64, ECF No. 10. Such allegations, coupled with the fact that the managers in this case, unlike the managers in Dukes, are concentrated in one location, make it plausible that Defendants have encouraged a company-wide attitude of discrimination that has "manifested itself in hiring and promotion S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.15) (internal quotation marks omitted).

Therefore, Dukesdoes not preclude class certification in this case. Defendants also argue that Plaintiffs' mention of discriminatory hiring in their class allegations is improper because Named Plaintiffs' claims of discriminatory hiring are time- barred. EvenifNamed Plaintiffscannotstateclaimsfordiscriminatory hiring, theirallegations that they were subject to discriminatory hiringare relevantto their discriminatory pay claims.

Specifically, it is possible that Defendants will respond to NamedPlaintiffs' discriminatory pay claims byarguing that Plaintiffs' pay is based on gender-neutral pay scales. SeeAm. Compl. para. 27 (discussing thesescales). Named Plaintiffs' discriminatory hiring allegations help to rebut this argument by asserting that women are placed at lower ranks on these scales than equally qualified men,resulting inwomen receiving lowerpaydespitethefacial neutrality ofthe pay system. Because Named Plaintiffs' discriminatory hiring allegations provide useful background evidence for Plaintiffs' discriminatory pay claims, those allegations are properly included in the Amended Complaint. Evans,80 F.3d at 962.

Defendantsalsoarguethat Plaintiffs' retaliationclaims cannot be broughton a classbasis because such claims are inherently individualized. Retaliation claims often involve individualized questions, but theycan be brought on a classbasis if the plaintiffs "establishf] a

general practice of retaliation against employees who opposed discriminatory practices or exercisedrightsprotectedunderTitle VII." Holseyv. Armour &Co.,743 F.2d 199,217 (4thCir. 1984);accordDukes, 131 S. Ct. at 2553 (requiringproof ofa general policyofillegalconduct thatmanifesteditselfsimilarlywithrespecttoallclass members).

Here, the numerous instancesofpossibleretaliation recited in the Amended Complaint, coupled with the discriminatory attitudes allegedly demonstrated by Defendants' upper management, make Plaintiffs' claims that Defendants operated under a general policy of retaliation plausible. Therefore, Plaintiffs'classretaliation claimsareproper.

Finally, Defendants argue that Plaintiffs' claims for monetary damages are too individualized tobelitigated ona classbasis. TheSupreme Courthasheldthatwhen a plaintiff in a class action "seeks individual reliefsuch as reinstatement or backpay afterestablishing a pattern or practice of discrimination," the district court should first decide the issue of discrimination onaclassbasisandthenconductindividualized proceedingsontheissueofrelief.

Dukes, 131 S.Ct.at2561. Unlike the plaintiffs in Dukes, Plaintiffs do not rely solely upon "the bare existence of delegated discretion." Id. at 2555. Instead, Plaintiffs have alleged that Defendants' senior managementactivelyencourageddiscriminatoryattitudesthroughout the workplace. Theclaims of the class members can be resolved by common answers regarding the guidance that Defendants' upper management has given to lower managers and supervisors regarding sex discrimination. Defendants' challenge regarding the weight of the individual issues and class issues is best resolved after class discovery iscomplete. Therefore, Defendants' Motion to Strike is DENIED.

Iv. Conclusion

Plaintiffs have alleged facts that, if proven, will render class certification appropriate. Although Plaintiffs may be procedurally barred from obtaining relief for some of the incidents alleged, these allegations are properly included as background evidence for Plaintiffs* other claims. Defendants* Motion to Strike (ECF No. 22) is DENIED.

Defendants" Partial Motion to Dismiss(ECFNo. 24) is DENIED. IT IS SO ORDERED. ArendaVwngnt-a'njen United States District Judge rfolk. Virginia

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 1 of 10 PageID# 1558

In The United States District Court

For The Eastern District Ofvirginia

Norfolk Division

Janetaviles, Jamieka Brown, )

STEPHANIE JACKSON, and KEL SHARPE, ) individually and on behalfofall others similarly ) situated, ) Plaintiffs, ) ) Case No.: 2:13-cv-0()418-A\VA-TK.M v. )

Bae Systems Norfolk Ship Repair, )

INC. and BAE SYSTEMS SHIP REPAIR. INC., ) Defendants. )

Osed}Order Granting:

(1) Preliminary Approval Of Class Action Settlement;

(2) Preliminary Certification Of Settlement Class;

(3) Approval Of Notice Plan; And

(4) Setting Schedule For Final Appr()Val

Havingreviewedthe unopposed motionof plaintiffs Janet Aviles. Jamieka Brown. Stephanie Jackson, Kel Sharpe. individually and on behalfofall others similarly situated ("Plaintiffs"), forpreliminary approval oftheclassaction Settlement Agreement andJoint Stipulation ("Settlement" or"Agreement") between Plaintiffs and Defendants BAE Systems Norfolk ShipRepair. Inc. and BAE Systems ShipRepair, Inc. (collectively"BAESystems" or "Defendants"), preliminary certification ofasettlement class in thisaction, appointment of ClassRepresentatives. ClassCounsel and theSettlement Administrator, approval of the notice ofsettlement to be sent to Sub-Class B/Monetary RclicfClass members, and the setting ofa hearing datefor final approval (hereinafter. "Motion for Preliminary Approval"): the accompanying memorandum in support; the declarations ofJoshua Friedman and Jennifer Reisch in support; thearguments ofcounsel: the pleadings and filings in this action: and good cause appearing therefore, the Court hereby ORDERS as follows:

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 2 of 10 PageID# 1559 TheMotion forPreliminaryApproval isGRANTED as setforthherein. TheCourt further makes the following findings and orders:

A. Preliminary Approval Ofclass Action Settlement

1. The Court has reviewed the terms ofthe Settlementattached as Exhibit A to the DeclarationofJoshua Friedman inSupportofthe Motion for Preliminary Approval, including theinjunctive reliefandmonetaryreliefprovisions. ThedefinitionsintheAgreement arehereby incorporatedasthough fullyset forth inthisOrder,andcapitalized terms shall have the meaning attributed to them inthe Agreement. The Courtalso reviewed the supporting papers and declarationsofClassCounsel, which describe their legaland factual investigationand their assessment ofPlaintiffs' action and the Settlement. Based on review ofthose papers, the Court concludes thatthe Settlementterms appearsufficient and fair, reasonable, and adequate to warrant dissemination ofthe proposed settlement as provided inthe Notice Plan. The Court findsthat the Partiesentered into the Agreement ingood faith, following extensive, arms' length negotiations between their respective counsel, the settlement process was non-collusive, the Settlement has noobvious defects, and it iswithin the rangeofpossible settlement approval such that class notice isappropriate.

2. It is therefore ORDERED that:

a. The Settlement Agreement and the class action settlement itembodies is

herebyPRELIMINARILY APPROVED. Final approval oftheSettlementissubjecttothe hearingofanyobjectionsofmembersoftheSettlement Class,asdiscussedbelowandprovided in the Settlement.

b. Pending final determination ofthe fairness ofthe Settlement, all further

litigation ofthisaction notrelated totheapproval process ishereby STAYED.

c. The full terms ofthe Settlement Agreement will be made available inthe

Court's files at 600 Granby Street, Norfolk, VA, 23510 or online at http://www.vaed.uscourts.gov/ecf/index.html.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 3 of 10 PageID# 1560

B. Preliminary Certification Of Settlement Classes

1. TheCourt preliminarily certifies, forsettlement purposes only, the following settlement classes pursuant to Rule 23 ofthe Federal Rules ofCivil Procedure:

a. Pursuant to Rule 23(b)(2), aSub-Class A/lnjunctive ReliefClass1

consistingof: Allwomen who held aNon-Management Position at BAE SystemsNorfolk Ship Repair,Inc.at any timeduring the periodOctober 5,2007 through December 31, 2014, excludingthose individuals who previously entered into releases ofclaims as partofindividual agreements with BAEthat did notcarve out an exception for this Action atany time prior tothe Preliminary Approval Date; and

b. Pursuant to Rule 23(b)(3), a Sub-Class B/A Monetary Relief

Class consisting of: Allwomenwho helda BargainingUnitPositionat BAESystemsNorfolkShip Repair,Inc.atanytimeduringtheperiodOctober5, 2007throughDecember31, 2014, excludingthose individuals who previously entered into releases ofclaims as partofindividualagreementswithBAEthatdid notcarveoutanexceptionfor thisActionat anytimepriortothe PreliminaryApproval Date.

2. TheCourthereby finds thattheproposed settlement classes (collectively, the "SettlementClass"or"'Class")satisfytherequirementsforcertificationunderRule23(a):

a. TheSettlementClassissufficiently numeroussuchthatjoinderofall

membersinasingleproceedingwouldbeimpracticable;

b. There arequestions oflaworfact common totheClass, including, for the

Injunctive Reliefclass (Sub-Class A): (I) whether female employees in Non-Management Positions atBAE Systems Norfolk ShipRepair, Inc. weresubjected tohostile work environment sexual harassment that was notadequately addressed orremedied byseniormanagers and supervisors, and (2) whether managers orsupervisors retaliated against female employees in Non-Management Positions atBAE Systems Norfolk Ship Repair, Inc. for complainingabout genderdiscrimination orharassment in violation ofthe Company's anti-retaliation policy; and Sub-Class A includesall membersofthe Settlement Class.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 4 of 10 PageID# 1561 formembersofthe Monetary ReliefClass (Sub-Class B):(1) whether BAESystems' policies andpractices withrespect toshopordepartment assignments andhoursdiscriminated against femaleemployeesinBargainingUnitPositions,and(2)whether BAESystems' policiesand practiceswith respecttopromotion during the relevant perioddiscriminated against female employees in Bargaining Unit Positions;

c. Named Plaintiffs' claims are typical ofthe claims ofthe classes they seek

to representinthateach Named Plaintiffasserts that she wassubject to gender discrimination in promotions andassignments and wassubject toa hostile work environment on the basisofher sex, and that members ofthe proposed SettlementClass were subject to the same treatment; and

d. The Named Plaintiffshave fairlyand adequately represented theclasses

theyseek to represent and will continue todo so; and

e. PlaintiffsandtheSettlementClassare representedbyqualified,reputable

counsel who areexperienced inpreparing and prosecuting employment discrimination matters andclassactions,includingthose involvingthesortsofpracticesalleged intheComplaint. 3. The Court finds that the Sub-Class A/Injunctive ReliefClass satisfies the requirementsof Rule23(b)(2)becausethechallengedpracticesand policiesappliedtotheclass generally,suchthatfinalinjunctivereliefisappropriaterespectingtheclass asawhole.

4. TheCourt finds thatthe Sub-Class B/Monetary ReliefClass satisfies the requirements of Rule 23(b)(3)becausecommon questions oflawandfactpredominate over questions affecting any individual Class member, thecentral issues raised inthis action are susceptible tocommon proof, and resolving the common liabilityand damages issues in asingle actionwould befarmoreefficientthanlitigating individual claimsinseparateactions.

C. Appointment Of Class Representatives And Class Counsel

1. TheCourtfinds thatNamedPlaintiffsJanetAviles,JamiekaBrown, Stephanie Jacksonand KelSharpehave fairlyandadequatelyrepresentedthe interestsofthe Settlement Classandwillcontinuetodo so,andthusappointsthemtorepresentPlaintiffsasClass Representatives.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 5 of 10 PageID# 1562 2. The Court finds that the Law Offices ofJoshua Friedman PC and Equal Rights Advocates haveextensiveexpertise inemployment discrimination cases and class actionsand herebyappointsthemto represent Plaintiffsandthe Settlement Class as Class Counsel.

D. Approvalof Notice Plan

1. The Court approves, as to form and content, the Notice ofPendency ofClass Action Settlement, Verification form and instructions, and Exclusion Statementform and instructions attached to the Class Action Settlement as Exhibits 1,2,and 3(collectively, the "Notice Packet"). The Court has reviewed the submitted Notice Packet and concludes that:

a. The parties' proposed NoticeofPendency ofClass Action Settlement

(Exhibit I to the Settlement) sufficiently informs Sub-Class B/Monetary ReliefClass Members ofthetermsoftheSettlement,theirrightsundertheSettlement(including,butnot limitedto, theirrighttoparticipateinthemonetaryportionoftheSettlementand/orobjecttotheSettlement, ortheir rightto requestto beexcluded fromthe monetary relief provided inthe Settlement), and the date and location ofthe final approval hearing.

b. Pursuant to the Settlement, Notice Packets will be mailed to all Sub-Class

B/MonetaryReliefClassMemberswhoseidentitiesareknownto theparties. TheNoticePacket willbedisseminatedaccordingtothenoticeplandescribedinthe SettlementAgreementand substantially inthe form submitted bythe parties. 2. TheCourtalsoapproves theprocedure fordisseminatingnoticeoftheproposed settlementtotheSettlementClassasset forthintheSettlementAgreement. TheCourtfindsthat theplanofnotice under theproposed Settlement constitutes thebestnotice practicable underthe circumstances, and constitutes valid, due, and sufficient notice to the SettlementClass in full compliance with therequirements ofapplicable law, including theDueProcess Clause ofthe United States.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 6 of 10 PageID# 1563 3. Accordingly, the Court hereby ORDERS as follows:

a. The form and content ofthe proposed Notice ofPendency ofClass Action

Settlement, Verification Form,and Exclusion Statement (respectively, Exhibits 1,2and 3to the Settlement) are approved;

b. The manner ofdistributing theNotice Packet isapproved;

c. The Court approves Settlement Services, Inc. ("SSI") to serve as the

Settlement Administratorand authorizes and directs SSIto implement the notice planand claims administration termsofthe proposed Settlement Agreement, which include:(i) mailingNotice Packetsto membersofSub-Class B/MonetaryReliefClass; (ii) establishing thetoll-free informational telephonenumber;(iii)establishtheSettlementwebsite;(iv) receivingand processing Verification Forms and Exclusion Statements; and (v) carrying out such other responsibilitiesasare provided forinthe Agreementor may beagreed to bythe Parties;

d. Within20calendardaysafterthedate thisorder isentered,BAESystems

shall provide class member information to the Settlement Administrator, which shall distribute the Notice PackettoSub-Class B/Monetary ReliefClass Members within 30daysofreceipt of theclassmemberinformation,asset forthinParagraph48ofthe Settlement;

e. TheCourtauthorizesnoticeandsettlementadministration expenses and

fees incurred bySSI, which ithasestimated will amount toapproximately $20,000, tobepaid from the $3 million Settlement Fund tobe administered by SSI. In accordance with Paragraph 105 oftheSettlement Agreement, theSettlement Administratorshall provide reasonable notice andexplanation tothe Partiesbeforeincurringorcharginganynoticeoradministration fees or expenses inexcess of$20,000. Anyadditional costsandexpenses ornotice andsettlement administrationwillalso bepaidoutoftheSettlementFund.

f. TheSettlement Administratorshall provide counsel fortheParties witha

declaration onadministration of noticeshowingthattheClassNoticewasdisseminated in accordance with this Orderand the Settlement Agreement, including areport ofany/all exclusion requests received andofthose participating Sub-Class B/Monetary ReliefClass Members to

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 7 of 10 PageID# 1564 whom an individualsettlement share payment isdue,along with the projected amounts ofthose payments, no laterthan 15calendardays priorto the Final Approval Hearing Date.

E. Procedures And Deadlines Relating To Final Approval Ofthe

Settlement

1. Class Counsel's Motion for Attorneys' Fees and Costs Class Counsel shall file with this Court their motion foran award ofreasonable attorneys' feesand expenses no laterthan 10calendardays prior to the FinalApproval Hearing and at least 10calendardays priorto the deadline forclass members to submit written objections tothe Settlement to the Court. The motion shall be posted on the website established by the Settlement Administratordesigned to provide information to and communications with class members.

2. Verification and Exclusion Process; Deadlines for Sub-Class B/Monetary ReliefClass Members to Participate in or Opt Out ofthe Settlement

a. Sub-Class B/Monetary ReliefClass Members who wish to participate in

themonetaryreliefportion ofthe Settlementand receivean individual settlement share payment mustcompletetheverificationprocessasdescribedinParagraph50oftheSettlement Agreement. Sub-Class B/Monetary ReliefClass Memberswill have until 50days after thedate the Settlement Administrator initially mails Notice Packets tocomplete verification forms,and anadditional 10 daystocompletetheverificationprocessviaphoneor theSettlementwebsite createdbytheSettlement Administrator(the"Verification Deadline")inordertocompletethe verificationprocessand thereby becomeeligible to receivean individual settlement share payment upon final approval ofthe Settlement.

b. AnymemberofSub-ClassB/Monetary ReliefSub-Classmayrequestto

beexcluded (or"optout")from thatSub-Class andthemonetary reliefportion oftheSettlement. Sub-Class B/Monetary ReliefClass Members who wish toexclude themselves from the monetary portionofthe Settlement must submit signed exclusion statements to the Settlement Administrator, postmarked no laterthan50daysafter the date that the Settlement Administrator firstmailstheNotice Packets(the"Opt-Out Deadline"). Exclusionstatements must be

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 8 of 10 PageID# 1565 personally signed and dated by the Sub-Class B Member requestingexclusion andcontain a statement substantiallysimilar incontent to that ofExhibit 3to the Settlement Agreement. No person mayopt-out on behalfofanyother person,or beopted-out byany other person. Except forthose persons who have properly and timely submitted exclusion statements, all Sub-Class B MemberswillbeboundbytheAgreementandtheFinalJudgmentand OrderApproving Settlement, includingthe Release ofClaims contained at Paragraph 104therein, regardlessof whethertheycompletetheverificationprocessor receiveanymonetary relief. AnySub-ClassB Memberwhoproperly requests tobeexcludedfrom Sub-ClassB(themonetary portion ofthe Settlement)shallnot:(a)beboundbythe ReleaseofClaimscontained intheAgreement;(b)be entitled toanymonetary reliefunderorpursuant totheAgreement; or(c)beentitled tofileany objections toanyaspectoftheSettlementorappearattheFinal Approval Hearingtovoiceany objectionstotheSettlementortoClassCounsel'smotion foranaward ofattorneys' fees and costs.

3. Objections to the Settlement

a. AnySettlementClassmemberwhocomplies withtherequirementsofthis

Paragraph anddoesnotsubmitanexclusion statement may objecttoanyaspect oftheproposed SettlementAgreement ortoClassCounsel'smotion foranawardofattorneys' fees andcosts eitheronhisorherownorthrough anattorney hired athisorherexpense. AnySettlement Class Member who wishes to object to the proposed Settlement must file with the Court, and serve on the Settlement Administrator, Class Counsel, and Defendant's Counsel, at the addresses set forth below, awritten statement ofobjection nolaterthanfifty (50)calendardaysafterthedatethe Settlement Administrator initially mailsNotice Packets (the"Objection Deadline").

b. Writtenstatementsofobjectionshall include:(i)the name,address,

telephone numberand, ifavailable, e-mail address ofthe person objectingand, ifrepresented by counsel, ofhis/hercounsel; (ii)astatement ofhis/her membership intheSettlement Class (iii) specificallyandinwriting, eachandeveryobjection totheproposed Settlementand/ortoClass Counsel's motion forattorneys' fees and costs, along with adetailed description ofthe grounds

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 9 of 10 PageID# 1566 foreach;and(iv)noticeofwhetherhe/she intends toappearatthe Final Approval Hearing, cither with or without counsel.

c. Objections must be served on Counsel for the Parties and sent to the

Settlement Administrator at the following addresses: Settlement Administrator Settlement Services Inc. P.O.Box 1657 Tallahassee, FL 32302-1657 Class Counsel Joshua Friedman. Esq. Law Offices ofJoshua Friedman. P.C. 1050 Seven Oaks Lane Mamaroneck, NY 10543 Jennifer Reisch. Esq. Equal Rights Advocates San Francisco, CA 94102 Defendant's Counsel Carson Sullivan, Esq.

Paul Hastings LLP 875 15th Street, N.W. Washington, D.C. 20005

d. Any SettlementClass Member who does not timely file and serve a

written objection pursuant to the terms hereofshall be deemed to have waived, and shall be foreclosed from thereafter raising, any objection to the Agreement. Any objection that isnot timely made shall be barred. 4. Final Approval Motion Deadline and Hearing Date

a. Class Counsel shall filea Motion for Final Approval ofthe Settlement no

laterthan 10days before the final approval hearing. The parties may file a reply to any objection, jointlyor separately, no laterthan fivecourt days before the final approval hearing.

b. A hearing on final approval ofthe Settlement Agreement and on an award

ofattorneys' feesandexpenses toClass Counsel(the "Final Approval Hearing") shall be heldat onVeb \Oh 20ljfat 4-COAM,, before the undersigned in Courtroom 3_ofthe United

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 10 of 10 PageID# 1567 States District Court for the Eastern District ofVirginia, 600 Granby Street, Norfolk, VA 23510. Atthe Final Approval Hearing, the Court will consider: (a) whether the Agreement should be finally approved as fair, reasonable, and adequate for the Settlement Class; (b) whether togrant final certificationofthe Settlement Class: (c) whether ajudgment grantingapprovalof the Agreement and dismissing the Action with prejudice should be entered: and (d) whether Class Counsel's motion forattorneys' fees and expenses should be granted. The Court reserves the right to continue the date ofthe final approval hearing without further notice to class members.

IT IS SO ORDERED. Arenda LTWHght,Allen United States District Judge 3T *oiy Dated The IIon. Arenda Wright Allen United States District Judue

Miramontes v. Peraton, Inc. United States District Court for the Northern District of Texas, Dallas Division June 6, 2023, Decided; June 6, 2023, Filed

Civil Action No. 3:21-Cv-3019-B

Reporter 2023 U.S. Dist. LEXIS 98024 *; 2023 WL 3855603 CARLOS MIRAMONTES, Plaintiff, v. PERATON, INC., Defendant. Prior History: Miramontes v. Peraton Inc., 2022 U.S. Dist. LEXIS 216516, 2022 WL 17364263 (ND. Tex., Dec. 1, 2022) Counsel: [4'1] For Carlos Miramontes, Plaintiff: Joseph E Ackels, Sr, LEAD ATTORNEY, Gregory Kaleel Ackels, Jr, Joseph Ellis Ackels, Jr, Ackels & Ackels LLP, Dallas, TX.

For Peraton Inc, Defendant: Jeremy Wayne Hawpe, LEAD ATTORNEY, Littler Mendelson PC, Dallas, TX; Ryley T Bennett, Littler Mendelson, Dallas, TX. For ADR Provider, Mediator: Cecilia H Morgan, LEAD ATTORNEY, JAMS, Dallas, TX. Judges: JANE J. BOYLE, UNITED STATES DISTRICT JUDGE. Opinion by: JANE J. BOYLE Opinion

Memorandum Opinion And Order

Before the Court is Plaintiff Carlos Miramontes's Motion for Sanctions for Spoliation of Evidence (Doc. 62). Miramontes claims Defendant Peraton, Inc. should be sanctioned for (1) failing to preserve text messages between its employees Joe Capalbo and Victor Stemberger and (2) failing to produce certain emails and agendas related to Miramontes's selection for termination. As a sanction, Miramontes requests a finding of liability as to discrimination. Because the Court finds a lesser sanction is appropriate, the Court GRANTS in part the Motion for Sanctions (Doc. 62).

As sanctions, the Court DENIES Peraton's Motion for Summary Judgment (Doc. 30) and permits Miramontes to serve five additional interrogatories and three additional requests [*2] for production. Miramontes's Motion to Strike Defendant's Summary Judgment Evidence (Doc. 37) is DENIED AS MOOT. I.

Background

Rebecca Houlding

United States District Court For The

Northern District Of New York

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A.S., Plaintiff, -against- No. 1:21-CV-620 (BKS) (ATB)

City School District Of Albany; City

School District Of Albany Board

Of Education; Lori Mckenna, In Her

Individualcapacity; Dale Getto, In Her

Individualcapacity; Anne Savage, In

Her Individual Capacity; Jeffrey

Honeywell, In His Individual Capacity,

Defendants.

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Memorandum Of Law In Support Of

Plaintiff’S Motion To Proceed Under Pseudonym

On theBrief: Rebecca Houlding, Esq. Giselle Schuetz, Esq.

Friedman& Houlding Llp

1050 Seven Oaks Lane Mamaroneck, New York 10543 212.308.4338 866.731.5553 rebecca@friedmanhouldingllp.com giselle@friedmanhouldingllp.com

Table Of Contents

B. Denying Anonymity Risks Harm to Plaintiff and Innocent Student Third

Memorandumof Law

Plaintiff A.S. (“Plaintiff”) makes the instant motion to proceed in the above-captioned case as a pseudonymous plaintiff. This Court should permit A.S. to protect her identity from public disclosure because this case involves matters of the highest sensitivity (sexual misconduct toward a minor), it is pursued against a government defendant with a diminished interest in protecting its reputation, the public’s interest is furthered by anonymity in this and other sexual misconduct cases, innocent non-parties as well as Plaintiff would be harmed by public disclosure of her identity, Plaintiff’s identity has been kept publicly undisclosed to date, and Defendant will suffer no prejudice from Plaintiff’s anonymity. Plaintiff’s motion should be granted.

I. Facts

In her Complaint, Plaintiff A.S. alleges she was harassed by a male student perpetrator while she attended a high school operated by Defendants City School District of Albany and the City School District of Albany Board of Education. As set forth in her Complaint, the perpetrator sexually harassed Plaintiff beginning when she was just fifteen years old, including but not limited to by writing andcirculating a violent rape fantasy concerning Plaintiff via text message to male classmates (Dkt. 1 ¶¶63-66)and going so far as to publicly ask his Chemistry instructor how to make chloroform, which was an element in the rape narrative (¶67); circulating violent sexual text messages concerning Plaintiff and another female student that referenced their bodies, oral sex, mutilation, Viagra-fueled rape, and noise-cancelling headphones (¶¶146-149; see also Dkt. 1,Exhibit B); grabbing and holding plaintiff’s arm (¶73); asking her “do you want to be my dominatrix?” (¶74); screaming profanities at her (¶56); and other highly offensive conduct and actions. He further engaged in offensive sexual conduct toward other students not parties to this case, about which Plaintiff was aware: hetexted a third-party student a sexually

violent “song” with lyrics suggesting he had raped her and left her crying on the floor (¶61), told a student that she should post color photos of herself on Instagram because he “masturbated better to color photos” (¶69), stalked and made sexual comments to another student including about penis size (¶78), and engaged other offensive sexual conduct. The Complaint does not identify the perpetrator student nor the third-party students by name. Plaintiff now seeks leave to pursue her claims under a pseudonym.

Ii. Legal Standard

Under the Federal Rules of Civil Procedure, generally “the title of the complaint must name all the parties” and “an action must be prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 10(a), 17(a)(1). However, courts “approve[] of litigating under pseudonym in certain circumstances.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008).

To proceed anonymously a plaintiff must demonstrate that she has “a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” Macinnis v. Cigna Grp. Ins. Co. of Am., 379 F.Supp.2d 89, 90 (D. Mass. 205) (internal quotes and cites omitted). “[T]he decision whether to allow a plaintiff to proceed anonymously rests within the sound discretion of the court.” Doe v. C.A.R.S. Protection Plus, Inc.,, 527 F.3d 358, 371 n.2 (3d Cir. 2008). In exercising this discretion, courts in this Circuit “balance [the] interest in anonymity against both (a) the public interest in disclosure and (b) the potential prejudice” to the other party. Sealed Plaintiff, 537 F.3d at 185. The following ten factors should be considered:

(1) “whether the litigation involves matters that are highly sensitive and [of a] personal nature”;

[seeking to proceed under pseudonym] or even more critically, to innocent non-parties”; (3) “whether identification presents other harms and the likely severity of those harms”; (4) “whether [a party or non-party] is particularly vulnerable to the possible harms of disclosure”; (5) “whether the suit is challeng[ing] the actions of the government or that of private parties”; (6) whether there would be any prejudice to a party by proceeding with the case anonymously; (7) whether the parties’ identities have been kept confidential; (8) “whether the public’s interest in the litigation is furthered by requiring” the identification of the parties or non-parties; identities”; and (10) “whether there are any alternative mechanisms for protecting the confidentiality of the [parties or non-parties].” Sealed Plaintiff, 537 F.3d at 190 (citations and internal quotes omitted).

Iii. Argument

The ten factors taken together weigh heavily in favor of permitting Plaintiff to proceed under a pseudonym. As set forth in detail below, this case involves matters of the highest sensitivity (sexual misconduct toward a minor), it is pursued against a government defendant with a diminished interest in protecting its reputation, the public’s interest is furthered by anonymity in this and other sexual misconduct cases, innocent non-parties as well as Plaintiff

would be harmed by public disclosure of her identity, Plaintiff’s identity has been kept undisclosed to date, and Defendant will suffer no prejudice from Plaintiff’s anonymity as it is already aware of her identity as well as those of the student witnesses. Plaintiff, the alleged perpetrator, and witnesses were all minors at the time of the events in question. Plaintiff’s Motion should be granted.

A. The Subject Matter of This Litigation is of the Highest Sensitivity The central allegations in this case involve sexual harassment of--including violent rape fantasies regarding—an underage child. There are few matters that are more “highly sensitive” than sexual misconduct, and courts have not hesitated to permit pseudonymous filing in such cases. See, e.g., Doe v. Univ. of Conn., 2013 U.S. Dist. LEXIS 119251, *88 (D. Conn. Aug. 22, 2013) (permitting plaintiff to proceed under pseudonym where complaint involved allegations of sexual harassment, and stating “it is difficult to conceive of allegations that can be more sensitive or personal”); Painter v. Doe, 2016 U.S. Dist. LEXIS 91003, *17 (W.D.N.C. July 12, 2016) 2014)(Dkt. 5) (“the allegations made here involve matters that are highly sensitive and of a personal nature, as they deal with sexual assault and harassment”) (cites omitted). In fact, courts in this Circuit routinely allow plaintiffs to proceed pseudonymously in Title IX cases involving allegations of gender-based misconduct. See, e.g., Doe v. Colgate Univ., 2016 U.S. Dist. LEXIS 48787, *6-7 (N.D.N.Y. Apr. 12, 2016) (“the Court finds that protecting the anonymity of sexual assault victims and those accused of committing sexual assault can be an important safeguard to ensure that the due process rights of all parties are protected”; B.B. v. The New School, No. 1:17- cv-8347 (S.D.N.Y.); Doe v. Weill Cornell Med. Coll. Of Cornell Univ., No. 1:16-cv-3531

(S.D.N.Y.), Order (May 12, 2016) (ECF 12); Doe v. Meisels, 1:14-cv-5725 (E.D.N.Y.), Order (Nov. 6, 2014) (ECF 5); Doe v. Columbia Univ., No. 1:14-cv-3573 (S.D.N.Y.), Order (June 9, 2014) (ECF 3). Additionally, "[a]llegations of sexual abuse of minors typically weigh significantly in favor of a plaintiff's interest [in anonymity]." Rapp v. Fowler, 2021 U.S. Dist.

F.Supp.2d 54, 55 n.1 (D. Conn. Mar. 31, 2008) (“[b]ecause this case involved the sexual assault of a minor, the Court granted the plaintiff's motion to proceed in a fictitious name and to refer to the minor child by her initials,” and although the parties used their real names at trial, which also are recorded in the jury charge and trial transcripts,” [t]o protect [plaintiff’s]privacy, however, the Court will use her initials and her mother's pseudonym in this ruling”on defendant’s post- trial motions)); Local Rule 5.2(a)(2) (requiring that in all filings with the court “[i]f the involvement of a minor child must be mentioned, use only the initials of that child”).

Here,theComplaint alleges that the perpetratorsexually harassed Plaintiff, including by making her the subject of written rape fantasies that he circulated among classmates when she was only fifteen years old, and circulating violent sexual text messages referencing Plaintiff and another female student that referenced their bodies, oral sex, mutilation, Viagra-fueled rape, and noise-cancelling headphones. This humiliating conduct is highly sensitive both in its inherent nature, and due to Plaintiff’s age at the time it occurred. The first factor therefore weighs heavily in favor of Plaintiff’s request to proceed under a pseudonym.

B. Denying Anonymity Risks Harm to Plaintiff and Innocent Student Third Parties The second and third factors also weigh in favor of Plaintiff’s request to proceed under a pseudonym. Disclosure of Plaintiff’s identity would potentially subject her to humiliation, the risk of public disapproval, and further emotional distress, which alone supports her request for

anonymity. See, e.g., Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Penn. July 13, 2001) (holding pseudonym is justified where inter alia “plaintiff’s fear of increased embarrassment, humiliation, and emotional distress should her friends and business associates learn of these events [her experience of sexual misconduct] is well-founded”). Plaintiff already has a justified fear of retaliation from certain persons who areaware of her identity who have issued threats; for instance, the School Board President’s threat to sue Plaintiff and her family both while Plaintiff was in high school and again recently; and the school Vice Principal’s threat to Plaintiff and another student victim that the Board President was “angry with them” and to “watch out,” among others. Complt. ¶¶4, 137. These ongoing threats exacerbate Plaintiff’s reasonable fear of public disapproval or retribution should she be identified to the broad public. Moreover, these risks are magnified by the internet, which would make information regarding humiliating events experienced during Plaintiff’s childhood permanently accessible to anyone with a smartphone.

See Rapp, 2021 U.S. Dist. LEXIS 84214 at *9 (“[I]t bears mentioning that the digital age has adversely affected the privacy of litigants. The days when court records of litigation largely escaped public notice as they languished in countless file rooms largely ended with the advent of electronic case files, the internet, search engines, and other aspects of the information age.”).

Additionally, identifying Plaintiff could allow the public to moreeasily identify the other students discussed in the Complaint who are also alleged to have suffered humiliating sexual harassment from the same individual, but who are not plaintiffs in the case. Courts recognize that third parties have an even greater interest in anonymity: for instance, in Doe v. Univ. of Miss., 2018 U.S. Dist. LEXIS 58972 (S.D. Miss. Apr. 6, 2018), the plaintiff college student sought to proceed pseudonymously to protect his own identity and that of the student he had been accused of sexually assaulting. The court granted the plaintiff’s motion, and regarding the third party

alleged victim, held that “[t]hough she is not a party to this litigation, it will focus upon, and has already described in detail, extraordinarily intimate details of a sexual encounter. Her right to privacy with regard to the events described within the complaint outweighs the public’s right to know her identity.” Id. at *4; see also Doe v. Trs. of Dartmouth Coll., 2018 U.S. Dist. LEXIS 74066 (D.N.H. May 2, 2018) (granting plaintiff’s motion for anonymity inter alia because “[s]hould plaintiff be publicly identified, Sally[, a third party victim] would likely be identified as well, and Sally has a stronger case for anonymity”).

As set forth in the Complaint, the perpetrator in this case texted a third-party student a sexually violent “song” with lyrics suggesting he had raped her and left her crying on the floor (Dkt. 1 ¶61), told a student that she should post color photos of herself on Instagram because he “masturbated better to color photos” (¶69), stalked and made sexual comments to another student including about penis size (¶78), and is alleged to have engaged in other offensive sexual conduct. These students—who are referred to only by pseudonym in the Complaint—would be significantly more easily identifiable by the public and the media if Plaintiff’s identity were disclosed, even though they currently have not pursued legal claims against Defendants. Plaintiff has also referred to the perpetrator student by pseudonym in the Complaint – and has even used a pseudonym for his school board member parent, to maintain the student’s identity as confidential. Permitting plaintiff to proceed anonymously is therefore necessary to protect not only her own privacy, but to prevent harm to the third-party student victims, and even the alleged student harasser. See Doe v. Trs. Of Dartmouth Coll., 2018 U.S. Dist. LEXIS 74066 at *15 (permitting plaintiff’s anonymity and noting third party victim’s interest in anonymity is “[e]ven more salient to the court”).

Moreover, requiring Plaintiff to proceed under her name would be particularly damaging where a case concerning sexual misconduct in a school is likely to attract media attention, given national media trends. Cf. Doe v. Colgate Univ., 2016 U.S. Dist. LEXIS 48787, *6 (“Recently, cases stemming from investigations of sexual abuse on college and university campuses have garnered significant media attention, posing the risk of further reputational harm to both the plaintiffs in these cases and their accusers.”). This enhances the need for pseudonymity in this case.

C. Defendant Will Suffer No Prejudice from Plaintiff’s Anonymity Permitting Plaintiff to proceed under her initials will cause Defendant no prejudice. "[T]here is no prejudice to [defendant's] ability to conduct discovery or try the matter if plaintiff were to proceed under a pseudonym where the defendants already know the plaintiff's name."

Doe v. Solera Capital LLC, 2019 U.S. Dist. LEXIS 55860, *18 (S.D.N.Y. Mar. 31, 2019), quoting EW v. New York Blood Ctr., 213 F.R.D. 108, 112 (E.D.N.Y. Feb. 19, 2003). See also Doe No. 2 v. Kolko, 242 F.R.D. 193, 198 (E.D.N.Y. 2006) (“Other than the need to make redactions and take measures not to disclose plaintiff’s identity, defendants will not be hampered or inconvenienced merely by plaintiff’s anonymity in court papers.”).

Defendants here already know Plaintiff’s identity. Further, all the other students who potentially have information concerning the allegations in the Complaint are also known to the government defendant already, since it possesses lists of the students enrolled at Plaintiff’s school, possesses attendance records, and knows which students were assigned to which courses at which times—allowing Defendant to determine who could have been present for which events described in the Complaint. Plaintiff’s pseudonymity in public court filings will therefore have no impact on Defendant’s ability to conduct discovery or otherwise to make out any defense. The

sixth factor therefore also weighs in favor of anonymity. See EW, 213 F.R.D. at 112 (granting anonymity where, inter alia, "defendant has not identified any prejudice to its ability to conduct discovery or try the matter if plaintiff were to proceed under a pseudonym[,]" and "conceded at oral argument, that it already knew plaintiff's name"); Doe v. Univ. of Miss., 2018 U.S. Dist.

LEXIS 58972 at *4 (permitting pseudonymity of plaintiff and third party “will not prejudice or pose a threat of fundamental unfairness to Defendants, as they are already aware of the individuals’ identities”). D. The Government Defendant Weighs in Favor of Anonymity Regarding the fifth factor, where "'a plaintiff attacks governmental activity, for example a governmental policy or statute, the plaintiff’s interest in proceeding anonymously is considered particularly strong.' That is because '[i]n such circumstances the plaintiff presumably represents a minority interest (and may be subject to stigmatization)," and "'the government is viewed as having a less significant interest in protecting its reputation from damaging allegations than the ordinary individual defendant." Plaintiffs # 1-21 v. Cty. of Suffolk, 138 F. Supp. 3d 264, 274-75 (E.D.N. Y. 2015), quoting EW v. New York Blood Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003) (citations omitted). Here, Defendants City School District of Albany and its Board of Education, the main Defendants, are government entities, with diminished interests in protecting their reputation, and Plaintiff, as a student who was subjected to discrimination by Defendants as a minor, represents a minority interest with an enhanced need for anonymity. Plaintiff’s claims against the additional individual defendants in this case are based upon their association with this government defendant. Therefore, this factor also supports Plaintiff’s request for anonymity. See, e.g., Doe v. City of New York, 2020 U.S. Dist. LEXIS 4655, *12 (E.D.N.Y. Jan. 9, 2020) (redacting plaintiff’s full name where plaintiff challenged government action).

E. The Public’s Interest is Furthered by Anonymity Regarding the eighth factor in the ten-factor test, courts hold that there is a recognized public interest in ensuring that victims of sexual misconduct are not deterred from coming forward in the courts. See, e.g., Doe v. Evans, 202 F.R.D. 173, 176 (allowing anonymity and holding “the public has an interest in protecting the identities of sexual assault victims so that other victims will feel more comfortable suing to vindicate their rights”); Doe No. 2 v. Kolko, 242 F.R.D. 193 (“the public generally has a strong interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes”).

The Local Rules of this Court also reflect recognition of theimportance of this interest: Rule5.2(a), concerning personal privacy protection, requires filers to “use only information that does not tend to identify the victim(s) of sexual assault, and redact the name to ‘Victim 1,’ ‘Victim 2’, etc.”Permitting Plaintiffto pursue her claims under a pseudonym is consistent with and furthers this important public interest.

F. Plaintiff’s Identity Has Been Kept Confidential Regarding the seventh factor, Plaintiff’s identity—and the identity of the male student who allegedly harassed her—have to date been kept confidential. Whilelocal community members wereaware of at least some of the allegations set forth in the Complaint and some of the identities of the minor students involved during the course of the events described, there has been no press coverage revealing Plaintiff’s name, nor that of the perpetrator student or the other student victims. The press coverage of a student protest concerning Defendants’ mishandling of Plaintiff’s complaints did not identify Plaintiff by name, norstate what was the nature of her allegations, nor discuss the events that gave rise to her claims. Further, aCommissioner of Education decision relating to the events in the Complaint solely used Plaintiff’s, the

perpetrator’s and victims’ initials. In the event there is press coverage concerning the instant Complaint, granting this motion will only make it more likely that Plaintiff’s and other victims’/witnesses’ names will not be revealed in the media. Plaintiff’s request for anonymity therefore is not moot. This weighs in favor of permitting her to proceed pseudonymously. See, e.g. Doe v. Univ. of Conn., 2013 U.S. Dist. LEXIS 119251 at *89 (permitting plaintiff to continue litigating under pseudonym because, inter alia, “[f]or purposes of this litigation, plaintiff’s identity has thus far been kept confidential”); Doe v. City of New York, 2020 U.S. Dist.

LEXIS 4655 at*12 (redacting plaintiff’s full name where “plaintiff has proceeded anonymously throughout the instant litigation thus far”).

Iv. Conclusion

Due to the highly sensitive nature of the key allegations in this case, the risk of harm to non-party students, the lack of any prejudice to Defendants, the important public interest served, the identity of the government Defendants, and the continued confidentiality of Plaintiff’s identity to date, the ten factors, on balance, weigh heavily in favor of permitting Plaintiff to pursue her claims pseudonymously. Plaintiff thereforerespectfully requests that her motion be granted.

Dated: June 1, 2021

For Plaintiff A.S.:

BY: Rebecca Houlding Rebecca Houlding, Esq. Giselle Schuetz, Esq.

Friedman & Houlding Llp

1050 Seven Oaks Lane

Mamaroneck, New York 10543

(T) 212.308.4338 x5

(F) 866.731.5553

rebecca@friedmanhouldingllp.com giselle@friedmanhouldingllp.com

In The United States District Court For The

Middle District Of Tennessee

Nashville Division

Jane Roe, |

Plaintiff, | | No. 3:21-cv-00415 v. | | Judge William L. Campbell

G6 Hospitality Llc. |

and |

M6 Goodlettsville, Llc, |

Defendants. | JURY DEMAND __________________________________________|

Motion For Leave To File Complaint Pseudonymously

Plaintiff, by and through her undersigned counsel, hereby moves for leave to file her Complaint pseudonymously, because filing under her own name would compel her to disclose information of the utmost intimacy, i.e., her HIV-positive status. Such public disclosure would be likely to negatively impact Plaintiff’s ability to find future employment, and risks disclosure of Plaintiff’s diagnosis to her minor child. Plaintiff’s proposed Complaint is attached hereto as Exhibit A.

I. Background

Plaintiff is an HIV-positive woman. She has lived with her diagnosis for seven years and has one minor child to whom she has not yet disclosed her diagnosis. Plaintiff brings the instant lawsuit against her former employers G6 Hospitality, LLC (“Motel 6”) and M6 Goodlettsville, LLC (“M6”). As set forth in the enclosed Complaint, while employed by Motel 6 Plaintiff suffered harassment due to her HIV status. Plaintiff disclosed her HIV status solely to her

managers because she was concerned for their safety, letting them know that if she fainted on the job as a consequence of a new medication with the potential side effect of dizziness, and began bleeding, they should call 911 rather than touching her and potentially making contact with her blood, because she was HIV-positive. See Complt. ¶¶22-23. One of the two managers went on to harass Plaintiff by, inter alia, telling Plaintiff’s coworkers that she “had AIDS” (¶¶27, 29) telling Motel 6 guests this information (¶28), telling coworkers not to use the restroom after Plaintiff (¶30), leaving Clorox wipes in the restroom to signal Plaintiff’s “uncleanliness” (¶31), calling the work phone line to tell Plaintiff “oh you’re a nasty bitch, you’re AIDS” (¶34), and other daily offensive conduct. Plaintiff complained, but Defendant Motel 6 took no action. The hotel at which Plaintiff worked was subsequently sold to franchisee Defendant M6. When Plaintiff told M6 management that she intended to pursue legal action against Defendant Motel 6 relating to her health condition, M6 fired her in retaliation. ¶¶52-55, 64.

II. Argument

Generally, “a complaint must state the names of all parties.” Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004), citing Fed. R. Civ. P. 10(a). “However, we may excuse plaintiffs from identifying themselves in certain circumstances.” Id. Courts consider several factors to determine “whether a plaintiff's privacy interests substantially outweigh the presumption of open judicial proceedings.,” including “(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information "of the utmost intimacy"; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children.” Id.

Here, Plaintiff should be permitted to file her Complaint pseudonymously because prosecution of her suit would compel her to disclose information of utmost intimacy—her HIV- positive status. Courts have frequently granted leave to file pseudonymously to HIV-positive Plaintiffs. See, e.g. Roe v. City of N.Y., 151 F. Supp. 2d 495 (S.D.N.Y. July 25, 2001) (granting leave to proceed pseudonymously and collecting cases). As other courts have noted, “given the stigma that HIV still carries in much of the country, Plaintiffs would be severely prejudiced by having to publicly disclose their medical condition.” Doe One v. CVS Health Corp., 2018 U.S.

Dist. LEXIS 70024 (S.D. Ohio Apr. 26, 2018) (granting leave to proceed under a pseudonym). Without anonymity, to vindicate her employment rights Plaintiff would be forced to accept the result her harasser intended—widespread knowledge of her HIV status, with the attendant risk for discrimination and mistreatment by others. While Plaintiff has disclosed her status in limited settings where necessary to protect the health and safety of others, filing the instant suit under her own name would make her HIV status instantly available to all future prospective employers who conduct an internet search on her name, increasing the risk that she will have difficulty becoming re-employed. Publicization of her HIV status also creates the risk that her status will be disclosed to her minor child before the time Plaintiff has judged appropriate to discuss with the child her diagnosis and its meaning.

To avoid the need for anonymity, Plaintiff’s counsel considered the possibility of referring only to an immune disorder in the instant Complaint. However, because the particular nature of the harassment in this case involved use of terms like “AIDS,” and because Plaintiff’s reason for informing her managers of her diagnosis reveals her condition to be a communicable disease, Plaintiff’s counsel judged that the legally necessary allegations in the Complaint would inevitably reveal Plaintiff’s HIV status even if she solely pled that she has an immune disorder.

III. Conclusion

Therefore, for the reasons set forth herein, Plaintiff respectfully requests leave to file her Complaint pseudonymously, in the form attached hereto as Exhibit A. Dated: May 27, 2021 Nashville, TN Respectfully submitted, Local Counsel:

Collins & Hunter, Pllc

By: /s/ Heather Moore Collins Heather Moore Collins Brentwood, Tennessee 37027 Tel: 615.724.1996 Fax: 615.691.7019 Local Counsel for Plaintiff

Friedman & Houlding, Llp

By: /s/ Giselle Schuetz Giselle Schuetz Friedman & Houlding, LLP 1050 Seven Oaks Lane Mamaroneck, NY 10543 888-369-1119 x8 Fax: 866-731-5553 giselle@friedmanhouldingllp.com To Be Admitted Pro Hac Vice

In The United States District Court For The

Middle District Of Tennessee

Nashville Division

Jane Roe, |

Plaintiff, |

| Civil Action Complaint

v. |

| Jury Trial Demanded

G6 Hospitality Llc. |

and |

M6 Goodlettsville, Llc, |

Defendants. | __________________________________________|

Sworn Declaration Of Heather Moore Collins

I, Heather Moore Collins, declare under penalty of perjury that the following facts are true, correct, and based upon my personal knowledge. 1. My name is Heather Moore Collins. I am an adult citizen, over the age of eighteen (18), and I am competent to make the statements contained in this Affidavit. I am duly licensed to practice before the courts of the State of Tennessee and I am local counsel for Plaintiff in the above-styled case. I make this declaration in support of Plaintiff’s Motion to File Under Pseudonym based on my personal knowledge, and if called upon to do so, I could and would testify competently thereto.

2. Public policy favors the allowance of anonymity for HIV-positive victims of discrimination and harassment as requiring public disclosure may otherwise act as a deterrent to the reporting and pursuit of these claims by victims. Case 3:21-cv-00415 Document 4-1 Filed 05/27/21 Page 1 of 2 PageID #: 23112

3. My client, Plaintiff Jane Roe, is identified in the Complaint as a resident of the State of Tennessee, Davidson County, and is thirty-six (36) years old. Jane Roe lives and works locally, and has a minor child. She is an HIV-positive woman. At this time, she desires for her identity to remain anonymous to the public.

4. My client, Plaintiff Jane Roe, is identified as “Jane Roe” in the underlying case filed in the United States District Court for the Middle District of Tennessee. 5. Given the nature of the allegations and the Plaintiff’s status as an HIV-positive individual, I respectfully submit that at this time my client’s anonymity is necessary and outweighs the standard presumption of public access to the identities of litigants.

Further this Affiant sayeth not. I declare under penalty of perjury that the foregoing is true and correct. s/ Heather Moore Collins Heather Moore Collins Date: 05/25/21 Case 3:21-cv-00415 Document 4-1 Filed 05/27/21 Page 2 of 2 PageID #: 24113

MARCUS STAPLES,: Plaintiff,.

MARCUS STAPLES,: v.. Civil Case No. 3:22-cv-31-REP.

MARCUS STAPLES,: B&K TECHNOLOGY SOLUTIONS, INC..

MARCUS STAPLES,: d/b/a ADVANCED TECHNOLOGY.

MARCUS STAPLES,: RECYCLING, INC.,.

MARCUS STAPLES,: Defendant..

In The United States District Court

For The Eastern District Of Virginia

Richmond Division

v. Civil Case No. 3:22-cv-31-REP

Plaintiff makes the instant filing pursuant to this Court’s Order of April 5, 2022, directing Plaintiff to: “file an explanation for the reliance herein on 42 U.S.C. Sec. 1981, rather than Title VII.” Dkt. 15. 42 U.S.C. 1981 Compared to Title VII Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 211 (4th Cir. 2007), quoting 42 U.S.C. § 1981(a). Racially hostile work environment claims may be brought under Title VII or Section 1981, and under either statute are analyzed in the same way. Spriggs v.

Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001) (“The elements [of a racially hostile work environment] are the same under either § 1981 or Title VII.”). “The burden of proof on a plaintiff in an employment discrimination case is the same for claims under Title VII, [and] § 1981 (Payne, J.), citing Gairola v. Commonwealth of VA Department of Gen'l Servs., 753 F.2d 1281, 1285 (4th Cir. 1985).

The Supreme Court has noted this “necessary overlap” between Title VII and 1981, and has explained that “Congress explicitly created the overlap in respect to direct employment discrimination.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 455 (2008) (holding that Section 1981 encompasses claims of retaliation relating to employment discrimination, and further holding that the “remedies available under Title VII and under Section 1981, although related, and although F.3d at 211 (in holding that Title VII exclusion for Alaska Native Corporations does not apply to Section 1981 claim, noting Section 1981 applies not only to employment discrimination but to other relationships, and noting the “Supreme Court has instructed us to treat [Section 1981] as a separate and distinct cause of action” from Title VII). Similar “overlapping” claims exist under other statutes: for example, certain disability discrimination claims may be brought under either the Rehabilitation Act or the ADAAA; and certain discrimination claims may be brought under either Title VII or 42 U.S.C. Sec. 1983.

However, several important distinctions between the statutes are relevant to a plaintiff’s decision whether to proceed under Title VII versus Section 1981. First, compensatory damages for Title VII claims are subject to a statutory cap of $300,000.00. See Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 367 n.1 (2013) (noting damages cap applies to Title VII claims [which caps range from $50,000 to $300,0001 depending upon the size of the employer]). In contrast, there are no damages caps applicable to claims brought pursuant to 42 U.S.C. Section 1981. 42 U.S.C. 1981a-(b)(4); see also Yates v. Computer Scis. Corp., 2014 U.S. Dist. LEXIS 184674, *2 (E.D. Va. Mar. 21, 2014) (noting “a statutory cap on punitive damages indeed applies only to her Title VII claim, and not to her corresponding § 1981 claim”); Jordan v. StoneMor Partners L.P., 2018 U.S. Dist. LEXIS 31015, *42 (W.D. Va. Feb. 27, 2018) (rejecting request to cap plaintiff's damages “in accordance with Title VII” because “there is no cap for damages under Section 1981, and because her claims move forward under that statute, the caps do not apply to 1 42 USC 1981a-(b)(3).

her”); see also Jin Ku Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“the Title VII statutory cap does not apply to § 1981 claims; the 1991 Civil Rights Act, which made compensatory and punitive damages available under Title VII, specifically provides that 'nothing in this section shall be construed to limit the scope of, or the relief available under, section 1981 of this title.'”), quoting 42 U.S.C. § 1981a(b)(4). A plaintiff’s potential recovery is therefore significantly larger when proceeding under Section 1981 as opposed to Title VII.

U.S.C. § 2000e-5(e)(1) (EEOC charge must be filed within 180 or 300 days of the discriminatory act) and § 2000e-5(f)(1) (suit must be filed within 90 days of obtaining an EEOC notice of right to sue)--whereas claims brought under Section 1981 are subject to a four year statute of limitations. Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369 (2004) (holding that four year statute of limitations applies to Section 1981 racially hostile work environment claim).

Moreover, Title VII claims require a plaintiff to file with the Equal Employment Opportunity Commission, and to show that the specific claims being pursued in court were adequately exhausted by that filing. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124 (4th Cir. 2002) (explaining that to file a Title VII claim, a plaintiff “must exhaust his administrative remedies by filing a charge with the EEOC[,]” and that thereafter “the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination”) (quotes and citations omitted). By contrast, claims filed under Section 1981 require no EEOC filing and failure to exhaust is unavailable as a defense. CBOCS, supra, at 455 (“We have pointed out that Title VII provides important administrative remedies and other benefits that §1981 lacks.”); see also Johnson v. Portfolio Recovery Assocs., LLC, 682 F. Supp.

2d 560, n.12 (E.D. Va. June 12, 2009) (“A plaintiff must have exhausted administrative remedies through the statutory process before bringing suit under Title VII. Therefore, for Title VII claims, the Court looks to the EEOC charge to determine whether administrative remedies have been exhausted. § 1981 claims, on the other hand, do not require administrative remedies to be exhausted, so the EEOC charge is irrelevant to § 1981 claims. Therefore, the Court looks only to

the allegations of the Complaint in analyzing § 1981 claims.”). As alleged in his Complaint, Plaintiff in the instant action did file an EEOC charge, and that conduct is protected activity. Thomas v. City of Annapolis, 851 Fed. Appx. 341, 350 (4th Cir. 2021) (“Protected activity includes the right to file an EEOC charge or similar complaint with a state agency[.]”). However, pursuing an identical claim under two statutes, where one statute provides a superior potential for recovery of damages, is potentially confusing for a jury.

In sum, claims brought under 42 U.S.C. § 1981 have no caps on damages, do not require exhaustion with the EEOC, and have a four year statute of limitations, whereas claims under Title VII have caps on compensatory damages that range between $50,000 and $300,000, require filing with the EEOC, and have a shorter statute of limitations, including filing a Complaint in court within 90 days of receipt of a “Right to Sue” letter. Therefore, Section 1981 is a more favorable statute under which to bring certain race-based employment discrimination claims, as Plaintiff has done in the instant case.

Jurisdiction In Plaintiff’s Complaint, he cited as a jurisdictional basis 28 U.S.C. § 1343. Dkt. 1, par. 52. For claims brought under Section 1981, this Court has jurisdiction both under 28 U.S.C. Sec. 1343(a)(4) (which specifically provides that the “district courts shall have original jurisdiction of secure equitable or other relief under any Act of Congress providing for the protection of civil rights”), as well as under 28 U.S.C. Sec. 1331 (which more broadly provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”). That is, this Court has jurisdiction over this action under 28 U.S.C.

2 Plaintiff’s Complaint states, “This Court has jurisdiction pursuant to 28 U.S.C. § 1343.” Defendant Answered: “The allegations contained in this paragraph constitute legal conclusions to which no response is required; to the extent a response is required, those allegations are denied.” Dkt. 12, par. 5.

Sec. 1343 because Section 1981 is a civil rights statute, but in any event the Court alternatively has jurisdiction over this action under 1331 because it arises under federal law. Dated: April 13, 2022 Newport News, VA Respectfully submitted, By: /s/ James H. Shoemaker Jr. Local Counsel for Plaintiffs Rebecca Houlding Giselle Schuetz FRIEDMAN & HOULDING, LLP.

1050 Seven Oaks Lane Mamaroneck, NY 10543 888-369-1119 x11 Fax: 866-731-5553 rebecca@friedmanhouldingllp.com giselle@friedmanhouldingllp.com Admitted Pro Hac Vice James H. Shoemaker, Jr., VSB No. 33148 PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C. Newport News, Virginia 23602 Telephone: 757.223.4500 Facsimile: 757.249-1627 jshoemaker@pwhd.com

Certificate of Service I hereby certify that today, April 13, 2022, I will electronically file the foregoing Filing in Response to Court’s Order, Dkt. 15, with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to all counsel of record. Dated: April 13, 2022 By: /s/ James H. Shoemaker Jr Patten, Wornom, Hatten & Diamonstein, L.C.

Newport News, Virginia 23602 Telephone: 757.223.4500 Facsimile: 757.249.1627 jshoemaker@pwhd.com

Declaration Of B G Pursuant To 28 U.S.C. § 1746 Under The

Penalty Of Perjury

1. I am B G I am over the age of 18 and make this Declaration based on personal knowledge. 2. I worked at Advanced Technology Recycling from 7/2017 to 8/2020, and for the duration of Marcus Staples's employment. ________ 3. I heard project manager Josh Addison refer to Mr. Staples and other African American workers Bennington as “boy” and/or “boys” on a daily basis throughout 2019. As the only white worker, Josh referred to me as B or Mr. G He never called the African American workers by their given names.

4. I was not present the day Josh called Mr. Staples a “monkey who eats bananas,” however, I was present the very next day when Josh handed Mr. Staples a bag of chicken. I was both shocked and offended by Josh's extremely racist targeted behavior toward Mr. Staples. 5. Mr. Staples told me he reported the “monkey/chicken” incidents to our warehouse supervisor Shaneka and to corporate. Shaneka heard everything that was said and went on, her office was right on the warehouse floor. It is a small area and there is no way she did not hear Josh's constant racial slurs toward Mr. Staples and the other African American workers.

6. I was so upset by Josh's offensive racism, I frequently complained to Shaneka about it myself. During 2019, I complained to Shaneka about Josh's behavior on approximately a weekly basis, either on my own or with co-workers. She said she would take care of it, but nothing changed to remedy the situation.

7. I was both surprised and affronted that corporate permitted Josh to remain as Mr. Staples’s project manager, and that his ongoing racist and disrespectful treatment toward Mr. Staples and

the other African American workers was swept under the rug. Josh continued to call Mr. Staples and other African American workers “boy” and/or “boys” daily, even after corporate and supervisor Shaneka were long aware this was going on. 8. I declare under penalty of perjury that the foregoing is true and correct.

(cid:48)(cid:48)(cid:51)(cid:51)(cid:47)(cid:47)(cid:48)(cid:48)(cid:49)(cid:49)(cid:47)(cid:47)(cid:50)(cid:50)(cid:48)(cid:48)(cid:50)(cid:50)(cid:49)(cid:49) _ __ __________ B G Date

Declaration Ofj A Pursuant To 28 U.S.C. § 1746 Under The

Penalty Of Perjury

1. I am J A . I am over the age of 18 and make this Declaration based on personal knowledge. 2. I worked at Advanced Technology Recycling from September 2018 to August 2019. 3. While working there, I worked in the same warehouse with Marcus Staples. 4. Project Manager Josh A--d--d-i- s present at the warehouse for several weeks at a time, Bennington and whenever he was there, I heard him call me, Marcus, and theother African-American employees in the warehouse “boy” on a near-daily basis.

5. He also called theAfrican-American workers “my boys” and “you sons of bitches.” 6. Josh never called B G , the only white worker, “boy” or “my boy.” 7. I told Josh not to call me and the other African-American workers these names, but he continued to do it whenever he was at the warehouse. 8. In or around April 2019 some coworkers came to tell me Josh had just called Marcus a “monkey.” I went over to see Marcus right away and found him very upset.

9. The next day, I saw Josh hand Marcus a ziplock bag of fried chicken. Marcus was extremely upset. 10. Ifelt this was a totally racist thing to do on Josh’s part, and Iwill never forget the image of Josh hanging Marcus a bag of chicken right after he called him a “monkey.” 11. As we were leaving work at the end of that day, Marcus told our supervisor Shaneka Butts that he couldn’t believe Josh had offered him a ziplock bag of chicken after calling him a monkey. Shaneka brushed it off, saying “I don’t think he meant it like that.”

12. Neither Shaneka nor anyone else from management ever interviewed me about Josh’s conduct. 13. Josh was at the warehouse for several weeks after the day he handed Marcus chicken, and in that time he continued to call Marcus and the other African-American workers “boy” and “my boys” on a near-daily basis the same as before.

14. I declare under penalty of perjury that the foregoing is true and correct. (cid:48)(cid:48)(cid:51)(cid:51)(cid:47)(cid:47)(cid:50)(cid:50)(cid:52)(cid:52)(cid:47)(cid:47)(cid:50)(cid:50)(cid:48)(cid:48)(cid:50)(cid:50)(cid:49)(cid:49) _____ _ __________ J A Date

Mental and Emotional Injuries in Employment Litigation Second Edition James J. McDonald, Jr. Fisher & Phillips LLP Francine B. Kulick Kulick Psychological Corporation Mood Disorders Major Depressive Disorder Dysthymic Disorder Anxiety Disorders Panic Disorder TGeneralized Anxiety Disorder Posttraumatic Stress Disorder Adjustment Disorders With Depressed Mood With Anxious Mood Mixed

are typically time-limited, with symptoms receding naturally and even without treatment after one to two years. Between individual episodes, the disorder is said to be in remission. The affected individual is often returned to his or her psychological baseline entirely symptom-free. Major Depressive Disorder is a biological phenomenon, passed through the generations genetically. It involves imbalances inthe relative concentrations of neurotransmitters of the brain, and it is responsive to biochemical (medical) interventions. Individual episodes may be triggered by stressful environmental events, or they may occur spontaneously, without noticeable external provoca- tion. Approximately 50 to 60 percent of individuals with Major Depressive Disorder, Single Episode can be expected to have a recurrent episode at some later point in their lives. The probability of further episodes increases with each successive bout endured.

In the context of employment litigation and other nonmedical circum- stances, it becomes particularly critical to differentiate emotional upset-reac- tive feelings of sadness, despondency, anger, or irritability that arise inresponse to environmental provocation but that fade shortly following the removal of the environmental stressor-from the biological psychopathology of Major Depressive Disorder. Overlap of vocabulary and experience lends itself to misunderstanding and even frank exploitation and abuse in a contentious legal arena. Simple feelings of sadness or indignation-even though described in the vernacular as "depression"-are normal human responses to stress and should not be misconstrued as rising to the level of diagnosable psychiatric disorder.

DSM-IV-TR diagnostic criteria are designed to establish the minimal con- stellation of symptoms necessary to warrant the hypothesis that an episode of Major Depressive Disorder underlies presenting complaints of altered mood. Symptom criteria required for diagnosis of a Major Depressive Episode are set forth in Table 5-6. Those necessary to diagnose Major Depressive Disorder, Single Episode are outlined in Table 5-7, and those involved in a diagnosis of Major Depressive Disorder, Recurrent are listed in Table 5-8.

Table 5-6 DSM-IV-TR Diagnostic Criteria for Major Depressive Episode A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms iseither (I) depressed mood or (2) loss of interest or pleasure.

Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations. (1) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). Note: In children and adolescents, can be irritable mood.

(2) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others) continued

176 Mental and Emotional Injuries in Employment Litigation Table 5-6 Continued. DSM-IV-TR Diagnostic Criteria for Major Depressive Episode (3) significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Note: In children, consider failure to make expected weight gains.

(4) insomnia or hypersomnia nearly every day (5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down) (6) fatigue or loss of energy nearly every day (7) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick) (8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others) (9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide B. The symptoms do not meet criteria for a Mixed Episode.

C. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. D. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).

E. The symptoms are not better accounted for by Bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.

Source: Reprinted with permission from the Diagnostic and Statistical Manual ofMental Disor- ders. Fourth Edition. Text Revision. 356. Copyright 2000 American Psychiatric Association. Table 5-7 DSM-IV-TR Diagnostic Criteria for Major Depressive Disorder, Single Episode A. Presence of a single Major Depressive Episode.

B. The Major Depressive Episode isnot better accounted for by Schizoaffective Disorder and is not superimposed on Schizophrenia, Schizophreniform Disorder, Delusional Disorder, or Psychotic Disorder Not Otherwise Spec- ified. C. There has never been a Manic Episode, a Mixed Episode, or a Hypo- manic Episode.

184 Depressive Disorders significant distress or impairment that persist for at least 2 weeks in an individual whose presentation has never met criteria for any other depressive or bipolar disorder, does not currently meet active or residual criteria for any psychotic disorder, and does not meet criteria for mixed anxiety and depressive disorder symptoms.

Unspecified Depressive Disorder This category applies to presentations in which symptoms characteristic of a depressive dis­ order that cause clinically significant distress or impairment in social, occupational, or other im­ portant areas of functioning predominate but do not meet the full criteria for any of the disorders in the depressive disorders diagnostic class. The unspecified depressive disorder category is used in situations in which the clinician chooses not to specify the reason that the criteria are not met for a specific depressive disorder, and includes presentations for which there is insuf­ ficient information to make a more specific diagnosis (e.g., in emergency room settings).

Specifiers for Depressive Disorders Specify if: With anxious distress: Anxious distress is defined as the presence of at least two of the following symptoms during the majority of days of a major depressive episode or persistent depressive disorder (dysthymia): 1. Feeling keyed up or tense. 2. Feeling unusually restless.

3. Difficulty concentrating because of worry. 4. Fear that something awful may happen. 5. Feeling that the individual might lose control of himself or herself. Specify current severity: Mild: Two symptoms. Moderate: Three symptoms. Moderate-severe: Four or five symptoms. Severe: Four or five symptoms and with motor agitation.

Note: Anxious distress has been noted as a prominent feature of both bipolar and ma­ jor depressive disorder in both primary care and specialty mental health settings. High levels of anxiety have been associated with higher suicide risk, longer duration of ill­ ness, and greater likelihood of treatment nonresponse. As a result, it is clinically useful to specify accurately the presence and severity levels of anxious distress for treatment planning and monitoring of response to treatment.

With mixed features: A. At least three of the following manic/hypomanic symptoms are present nearly every day during the majority of days of a major depressive episode: 1. Elevated, expansive mood. 2. Inflated self-esteem or grandiosity. 3. More talkative than usual or pressure to keep talking. 4. Flight of ideas or subjective experience that thoughts are racing.

5. Increase in energy or goal-directed activity (either socially, at work or school, or sexually).

186 Depressive Disorders B. Two (or more) of the following: 1. Significant weight gain or increase in appetite. 2. Hypersomnia. 3. Leaden paralysis (i.e., heavy, leaden feelings in arms or legs). 4. A long-standing pattern of interpersonal rejection sensitivity (not limited to epi­ sodes of mood disturbance) that results in significant social or occupational im­ pairment.

C. Criteria are not met for “with melancholic features” or “with catatonia” during the same episode. Note: “Atypical depression” has historical significance (i.e., atypical in contradistinction to the more classical agitated, “endogenous” presentations of depression that were the norm when depression was rarely diagnosed in outpatients and almost never in ado­ lescents or younger adults) and today does not connote an uncommon or unusual clin­ ical presentation as the term might imply.

Mood reactivity is the capacity to be cheered up when presented with positive events (e.g., a visit from children, compliments from others). Mood may become euthymic (not sad) even for extended periods of time if the external circumstances remain favorable. Increased appetite may be manifested by an obvious increase in food intake or by weight gain. Hypersomnia may include either an extended period of nighttime sleep or daytime napping that totals at least 10 hours of sleep per day (or at least 2 hours more than when not depressed). Leaden paralysis is defined as feeling heavy, leaden, or weighted down, usually in the arms or legs. This sensation is generally present for at least an hour a day but often lasts for many hours at a time. Unlike the other atypical features, pathological sensitivity to perceived interpersonal rejection is a trait that has an early onset and persists throughout most of adult life. Rejection sensitivity occurs both when the person is and is not depressed, though it may be exacerbated during depressive periods.

With psychotic features: Delusions and/or hallucinations are present.

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With mood-congruent psychotic features: The content of all delusions and hal­ lucinations is consistent with the typical depressive themes of personal inade­ quacy, guilt, disease, death, nihilism, or deserved punishment. With mood-incongruent psychotic features: The content of the delusions or hal­ lucinations does not involve typical depressive themes of personal inadequacy, guilt, disease, death, nihilism, or deserved punishment, or the content is a mixture of mood-incongruent and mood-congruent themes.

With catatonia: The catatonia specifier can apply to an episode of depression if cata­ tonic features are present during most of the episode. See criteria for catatonia asso­ ciated with a mental disorder (for a description of catatonia, see the chapter "Schizophrenia Spectrum and Other Psychotic Disorders”).

With peripartum onset: This specifier can be applied to the current or, if full criteria are not currently met for a major depressive episode, most recent episode of major de­ pression if onset of mood symptoms occurs during pregnancy or in the 4 weeks follow­ ing delivery. Note: Mood episodes can have their onset either during pregnancy or postpartum.

Although the estimates differ according to the period of follow-up after delivery, be­ tween 3% and 6% of women will experience the onset of a major depressive epi­ sode during pregnancy or in the weeks or months following delivery. Fifty percent of “postpartum” major depressive episodes actually begin prior to delivery. Thus, these episodes are referred to collectively as peripartum episodes. Women with peripartum major depressive episodes often have severe anxiety and even panic

DSM-5 Criteria: Major Depressive Disorder Box 4. DSM-5 Diagnosis: Major Depressive Disorder Major Depressive Episode: F Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.

Note: Do not include symptoms that are clearly attributable to another medical condition. — Depressed most of the day, nearly every day as indicated by subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful) — Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation) — Significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day — Insomnia or hypersomnia nearly every day — Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down) — Fatigue or loss of energy nearly every day — Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).

— Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others) — Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide F The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

F The episode is not attributable to the physiological effects of a substance or to another medical condition. Note: The above criteria represent a major depressive episode. F The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.

F There has never been a manic episode or a hypomanic episode. Note: This exclusion does not apply if all of the manic-like or hypomanic-like episodes are substance- induced or are attributable to the physiological effects of another medical condition. floridamedicaidmentalhealth.org