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October 2014 EEOC Verdicts and Settlements

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Our summary of recent EEOC verdicts and settlements for October 2014.

MN —- Wells Fargo & Company has agreed to pay $295,000 to resolve a discrimination charge filed by the EEOC.  A finding by the EEOC determined that Wells Fargo disciplined and terminated a Minneapolis Wells Fargo employee in retaliation for complaining of differential treatment based on her race and national origin in violation of Title VII of the Civil Rights Act of 1964.  Her supervisor told her not to speak Spanish during her non-duty time. Shortly thereafter, the EEOC found, Wells Fargo initiated discipline and ultimately terminated the employee for practices other employees regularly engaged in without discipline.  In addition to the monetary relief, the conciliation agreement requires Wells Fargo to conduct four hours of annual training for all managers and supervisors in the personal insurance business division where the employee worked. The training will encompass the federal and state laws that prohibit employment discrimination, with special consideration given to anti-retaliation provisions and requirements to speak only English at work that violate Title VII of the Civil Rights Act. In addition, Wells Fargo will distribute to all employees annually an electronic mail message affirming its commitment to diversity, multilingual ability and the use of languages other than English in the workplace. Wells Fargo will also report to the EEOC all allegations of discrimination or retaliation annually during the term of the three-year agreement.

FL —- Prestige Transportation Service, LLC, a Miami company which provides transportation services to airline personnel to and from Miami International Airport, will pay $200,000 to settle a race discrimination and retaliation lawsuit filed by the U.S. EEOC.  The EEOC charged in its suit that Prestige’s predecessor company, Airbus Alliance, Inc., which was under different ownership, repeatedly instructed its human resources manager not to hire African-American applicants because they were “trouble” and “would sue the company.”  Airbus also stated that it would be a “waste of paper” to give applications to black employees, the EEOC said.  According to the EEOC’s suit, Airbus’s owners referred to one employee as “the monkey” and fired her after she filed a discrimination charge with the EEOC.  In addition, Airbus terminated its human resources manager and another employee once they opposed the company’s discriminatory practices.  According to the terms of the four-year consent decree, Prestige will pay $200,000 to settle the suit.  Payments will be made to three named claimants, as well as a class of black applicants for employment. In addition, Prestige has agreed to the following additional measures as part of the consent decree. The company will: i) hire class members as openings become available over the next four years; ii) implement numerical goals for the hiring of black applicants; iii) use targeted advertising and recruitment to encourage black applicants to apply for employment at Prestige; iv) implement an anti-discrimination policy that includes clear avenues for reporting discriminatory conduct; v) train human resources personnel, management personnel, and hiring personnel on an annual basis; and vi) report to the EEOC and keep records about its hiring practices and compliance with the consent decree.

OK —- NSC Chicken, LP, d/b/a Chicken Express, will pay $15,000 and furnish other relief to settle a national origin discrimination lawsuit filed by the U.S. EEOC.  According to the EEOC’s suit, six Chicken Express franchise locations in Oklahoma systemically failed to pay Hispanic cooks at overtime wages as required by the Fair Labor Standards Act (FLSA). The EEOC said the cooks were singled out for the non-payment because of their Latin American national origin.  Such alleged conduct violates Title VII of the Civil Rights Act of 1964.  The EEOC sought monetary relief for Kennedy Zapet, who filed the initial discrimination charge, and 11 other Hispanic employees who were victims of this practice. The EEOC and the Wage and Hour Division of the U.S. Department of Labor (DOL) cooperated in their investigation of Chicken Express’s pay practices. During this cooperative investigation between the EEOC and the DOL and through a settlement with DOL, Chicken Express paid the affected employees back wages for their lost overtime.  The consent decree entered in the EEOC’s suit provides an additional $15,000 payment to 12 employees. Chicken Express will also take action to prevent future discrimination, including changing the company’s policy on setting wage and hour rates and overtime pay; posting an anti-discrimination notice to employees in Spanish and English; disseminating anti-discrimination policies to employees in Spanish and English; and providing anti-discrimination training to all management employees with supervisory responsibilities at each of the restaurants.

TX —- HiLine Electric Co., a Dallas-based industrial supply business, will pay $210,000 and furnish other relief to settle an age discrimination suit brought by the U.S. EEOC.  According to the EEOC’s suit, an internal recruiter informed the agency that company executives provided her a form with a list of bulleted criteria/considerations for position candidates.  This form included a printed text box, referred to as the “HiLine box,” listing an age-based hiring consideration.  Upon receipt of additional information regarding instructions for screening, the EEOC alleged that the criteria HiLine used resulted in the non-selection of applicants who were over 50 and who appeared to be qualified for the position.  Eight applicants, who were over 50 years of age when they unsuccessfully sought employment as territory managers, were identified as having been affected by the company’s practice.  A consent decree resolves all claims in the case.  In addition to the monetary damages, the three-year decree also provides for injunctive relief such as training and a notice posting.  HiLine agreed that it shall not in the future prepare, produce, publish or provide to any recruiter, manager, supervisor or any other employee, materials or lists of criteria in which chronological age or any proxy for age is a consideration for recruitment, hiring or promotion.

CA —- Kaiser Permanente, the largest managed care organization in the United States, will pay $75,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. EEOC.  According to the EEOC, a food service worker at Kaiser’s San Diego facility has a medical condition, hydrocephalus, which causes difficulties with memory, dizziness and concentration.  Upon hire, the worker requested additional training time and the assistance of a temporary job coach to effectively learn the job and perform the required job duties.  A non-profit organization in San Diego specializing in assisting people with disabilities —- Toward Maximum Independence (TMI) —- was available to provide the temporary job coaching services free of charge to Kaiser.  The EEOC alleged that Kaiser chose to fire the worker rather than grant the reasonable accommodation request.  The EEOC filed suit asserting that Kaiser had violated the Americans with Disabilities Act (ADA).  The parties entered into a two-and-a-half year consent decree to resolve the EEOC’s suit.  Aside from the monetary relief obtained for the victim, Kaiser agreed to appoint an equal employment opportunity coordinator to review and revise its existing anti-discrimination and accommodation policies and procedures.  Kaiser further agreed to provide training on those policies and procedures to all staff, including managers, in its San Diego Service Area and to monitor and track requests for accommodation and terminations involving persons with disabilities.

SC —- Spartanburg, S.C.-based Atchison Transportation Services, Inc., the largest full-service ground transportation company in South Carolina, has agreed to pay $85,000 and furnish other relief to settle an age discrimination lawsuit brought by the U.S. EEOC. The EEOC charged that the company discriminated against two motor coach drivers when it fired them because of their ages, 75 and 76, respectively.  William Thomas, a motor coach driver for Atchison, was told by the company’s operations manager that the company was terminating him because he had thought that Thomas was “only 70,” but because Thomas was actually 75, the company had to let him go. The complaint alleged that the operations manager further stated that the company’s insurance policy had a clause that did not allow drivers to drive after they reached the age of 75.  The EEOC’s suit made similar charges concerning Norris Locke, who also worked as a motor coach driver for the company.  The same operations manager had previously discharged Locke, who was 76 at the time, around Apr. 30, 2009. According to the EEOC’s suit, the operations manager stated that Locke was fired because the company’s insurance carrier would no longer insure Locke. The EEOC said that the company’s insurance policy had no age restriction for coverage.  In addition to monetary damages, the two-year consent decree resolving the litigation requires Atchison Transportation to develop and implement a policy that prohibits discrimination based on age in the future. The decree further requires the company to conduct preventive annual training on requirements of the ADEA for employees, supervisors and managers. Finally, the company will report to the EEOC each time that it discharges an employee who is over age of 40 and will post a notice about the lawsuit in its Spartanburg facility.

CA —- Bakersfield, Calif.-based Braun Electric Company will pay $82,500 and furnish other relief to settle a sexual harassment lawsuit filed by the U.S. EEOC.  Braun Electric provides industrial electrical services for the oil and gas industry throughout California’s San Joaquin Valley.  According to the EEOC’s suit, a male manager at Braun’s Belridge, Calif., location continually subjected female workers to a hostile work environment since 2010.  The EEOC said the manager made daily grotesque remarks of a sexual nature to female subordinates and made explicit sexual propositions on a continual basis.  Braun’s management failed to adequately address reports of harassment, and supervisors failed to report incidents of harassment they witnessed.  One female employee was forced to quit as a result of the ongoing hostile work environment, according to the EEOC.  Pursuant to the three-year consent decree settling the suit, aside from the monetary relief obtained for the victims, Braun Electric agreed to retain an experienced, external equal employment opportunity monitor to review and revise its existing policies and procedures with respect to discrimination, harassment, and retaliation.  The company further agreed to provide annual training for all staff on employee rights with respect to gender discrimination, harassment, and retaliation and provide additional annual training for supervisory staff on how to adequately address such complaints.  The EEOC will monitor compliance with the decree.

MD —- Wal-Mart Stores East, L.P., will pay $72,500 and provide significant equitable relief to settle a federal disability discrimination lawsuit filed by the U.S. EEOC.  According to the EEOC’s suit, an assistant store manager at the Walmart store in Cockeysville, MD, offered Laura Jones a job as an evening sales associate, contingent on Jones passing a urinalysis test for illegal drugs.  After Jones advised that she cannot produce urine because she has end-stage renal disease, the assistant store manager told her to ask the designated drug testing company about alternate tests.  Jones went to the drug testing facility the same day and learned that the facility could do other drug tests if the employer requested it.  After relaying this to the Walmart assistant store manager, management refused to order an alternative drug test.  Jones’s application was closed for failing to take a urinalysis within 24 hours.  In addition to providing $72,500 in monetary relief to Jones, the 30-month consent decree resolving this lawsuit provides substantial equitable relief, including enjoining Wal-Mart from taking any future adverse employment actions on the basis of disability and failing to provide reasonable accommodations. Wal-Mart will revise its applicant drug screen form to advise applicants that alternate drug screens will be available as a reasonable accommodation for applicants to whom a conditional offer of employment has been made in the Cockeysville store whose physical condition prevents them from producing urine and how to request a reasonable accommodation. Wal-Mart East will also provide ADA training on the revised drug screen form to its market and regional human resources directors, as well as to people with hiring responsibility at the Cockeysville store.

TX —- A Dallas federal court jury returned a verdict awarding almost half a million dollars to three former employees in a sexual harassment and retaliation lawsuit by the U.S. EEOC against EmCare, a provider of physician services.  The jury of two women and four men awarded former Executive Assistant Gloria Stokes $250,000 in punitive damages based on the claim that she was sexually harassed by her supervisor.  The EEOC also sought relief for Bonnie Shaw, an EmCare credentialer, and Luke Trahan, a recruiter, based on retaliatory discharge. The jury awarded Shaw and Trahan $82,000 and $167,000, respectively, to compensate them for lost wages and benefits as a result of having been fired for reporting and opposing a sexually hostile work environment within the AnesthesiaCare Division of EmCare.  The jury verdict followed five days of trial, including the presentation of evidence by the EEOC about constant lewd sexual comments and behavior of former AnesthesiaCare CEO Jim McKinney, as well as several other management-level employees in that Division. Stokes, Shaw and Trahan all testified about the lack of an appropriate response by Human Resources to their complaints about the misconduct. Shaw and Trahan testified about jointly reporting to human resources that McKinney made an inappropriate remark to Shaw’s then-15-year-old daughter at a “Bring Your Child to Work Day” event. Shaw and Trahan were both fired, within an hour of each other, just six weeks later for reasons the company alleged were performance issues.

NY —- Construction contractor Vamco Sheet Metals, Inc., will pay $215,000 as part of the settlement of a sex discrimination lawsuit brought by the U.S. EEOC.  Legal Momentum, a women’s rights nonprofit organization (formerly NOW Legal Defense and Education Fund), joined the EEOC’s suit on behalf of four discrimination victims.  The lawsuit challenged the treatment of female sheet metal workers on the massive John Jay College of Criminal Justice expansion in Manhattan from 2009 through 2011. According to the lawsuit, female sheet metal workers were fired for pretextual reasons, some after just a few days of work. The suit also alleged that the women were treated unfavorably compared to men, including being assigned menial tasks like fetching coffee and having their breaks monitored. One new mother was denied a clean private place to pump breast milk.  In addition to the $215,000 in damages to be paid to the discrimination victims, the three-year consent decree resolving the case requires Vamco to implement policy revisions that provide for equal opportunities, distribute the policy to all employees, and post notice of this resolution. The decree also requires annual anti-discrimination training for all supervisory employees and monitoring of Vamco’s employment practices by the EEOC.  The company now has a policy that expressly entitles nursing employees to an accommodation.

MN —- A Minneapolis-area home health care provider will pay $30,000 under a consent decree entered here which resolves a disability discrimination lawsuit filed by the U.S. EEOC.  The EEOC’s lawsuit charged that Baywood Home Care violated the Americans with Disabilities Act (ADA) by failing to provide Laurie Goodnough with a reasonable accommodation, and instead firing her as a home health aide. Goodnough has fibromyalgia and osteoarthritis that substantially limits her walking and bending.  John Rowe, director of the EEOC’s Chicago District, of which Minnesota is a part, managed the agency’s administrative investigation which preceded the lawsuit. Rowe said that the EEOC’s suit had alleged that two supervisors observed Goodnough walking with a cane, contacted Baywood Home Care’s owner and complained about it. The EEOC alleged that Baywood Home Care then fired Goodnough because of her disability, and failed to engage in the interactive process to determine and provide her with a reasonable accommodation.  The consent decree settling the suit, signed by U.S. District Judge Ann D. Montgomery on October 28, 2014, provides $30,000 in monetary relief to Goodnough. It also requires Baywood Home Care to train its management personnel and employees involved in hiring on the ADA, including reasonable accommodation, and the interactive process. The decree also requires Baywood Home Care to revise its performance evaluation criteria to hold managers and supervisors accountable for failing to report, take appropriate action, or engage in the interactive process with respect to disability discrimination complaints or requests for accommodation. Finally, Baywood Home Care must report complaints of disability discrimination to the EEOC during the decree’s three-year term.

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